ELRC158-23/24NC

ARBITRATION
AWARD
Panelist: Mothusi Maje
Case No.: ELRC158-23/24NC
Date of Award: 10 February 2024

In the ARBITRATION between:


SAOU (Suid Afrikaanse Onderwys Unie) obo Zelda Zuricka Vos
(Union / Applicant)

And


Northern Cape Department of Education

(Respondent)

Applicant’s representative: Ankia Bester (Professional Advisor)
Applicant’s address: 7 Plein Straat.
Loeriesfontein
8185
Telephone: 066 294-5282
Email Zeldavos@gmail.com

Respondent’s representative: Ricardo Tommy Britz (Assistant Director)
Respondent’s address: Department of Education: Northern Cape
Private Bag X 2, Springbok
8240
Telephone: (027)718-8600
Email: fadielfarao@ncdoe.School.za

DETAILS OF HEARING AND REPRESENTATION

1. This is an award of the arbitration that was held on the 26th of July 2023 on Zoom link. It became part-heard and continued on 26 January 2024. Appearing on behalf of the Applicant, Zelda Zuricka Vos who was also present was Ankia Bester, her Professional Advisor. Ricardo Tommy Britz appeared on behalf of the Respondent, Northern Cape Department of Education as its Assistant Director.

ISSUE TO BE DECIDED

2. The issue to be decided was whether the Applicant’s suspension was procedurally and substantively unfair.

BACKGROUND TO THE DISPUTE

3. The applicant is currently employed by the respondent as Principal (Post Level 4) at the Loeriesfontein High School. She is earning R472 569 per annum and was suspended with full pay on 09 May 2023 pending investigation on the issues raised by the respondent.

4. The suspension letter dated 09 May 2023 referred to the issues raised to include the following:
(i) Failure to carry out a lawful instruction.
(ii) Improper, disgraceful or unacceptable behaviour / conduct.
(iii) Disrespectful towards others in the workplace.
(iv) No respect for authority.
(v) Intimidates or victimisation of learners.
(vi) Financial dishonesty.

5. The Applicant approached the Education Labour Relations Council (ELRC) alleging that her suspension was procedurally and substantively unfair and seeking suspension to be lifted and compensation the entire period of suspension. The suspension was in terms of the Schedule 2 of the Employment of Educators Act 76 of 1995 (EEA).

6. The dispute was not resolved at conciliation and arbitration hearing was scheduled on 26 July 2023 and 26 January 2024, hence this award.

7. There were bundles of documents that were also submitted by the parties. The applicant’s bundle was marked bundle A and the respondent’s did not submit any bundle of documents.

8. The parties also submitted oral closing arguments on 26 January 2024.

9. Because the proceedings were manually and electronically recorded, the summary of the evidence will appear in the analysis that will follow herein under.

SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT

Zelda Zurika Vos testified as follows:

10. In order to support her case the applicant led the evidence that Bundle A on Page 23 is her precautionary suspension letter delivered by the Acting Circuit Manager. The Acting Circuit Manager was Mrs. Kividoo who was accompanied by a certain Mr. Britz and she was called to the office and received a suspension letter. After receiving her suspension letter she went to her car and drove home.

11. She testified that it was her first time to be suspended and she was devastated. On Bundle A page twenty one (21), she saw a letter from one of her husband’s cousin relatives drafted by the Loeriesfontein High School. The community in Loeriesfontein High School are partly staff members of the School Loeriesfontein High School, parents of learners, family members of her Husband and relatives.

12. It was her evidence that she her Husband and family were related in Loeriesfontein town. There was a Facebook page created which her suspension was discussed by community members about her suspension from Loeriesfontein High School in the Northern Cape. She approached a Lawyer after the rumors were spread on a Facebook page. The advice she received was that t she must approach a Union for assistance.

13. The applicant further testified that there was no charge sheet given to her after the suspension letter given to her. There was no charge sheet given to after the suspension letter was served. The suspension letter was uplifted on 08 May 2023. On 09 May 2023 she was again suspended by the employer and received a suspension letter on 09 May 2023 by a certain Mr. Britz upon arrival at Loeriesfontein High School.

14. The suspension barred her from being evaluated from being evaluated by the respondent. In February 2003, she contacted the circuit manager asking to resign without serving a notice but she was requested to a meeting with the circuit manager face to face regarding her resignation.

15. On January 2023, the Acting District Director informed her that she must be removed from the School as a result that she expelled one of the learners due to discipline at Loeries High School in the Northern Cape. She was the Chief Invigilator since 2019 until her suspension.

UNDER CROSS EXAMINATION

16. Her evidence was that page five (5) on Bundle A was the letter uplifting her suspension on 05 May 2023 which she received on 08 May 2023. She was again suspended on 09 May 2023 by the respondent.

17. The applicant further testified she has been in management position since 2017 and acted in 2019 as a Deputy Principal for approximately five (05) years. It was her further evidence that she knew that when a person intends to resign, she must serve a ninety (90) days period must be served, but a circuit manager may agree to a shorter period by agreement. She was shocked after receiving a suspension letter.

18. Her evidence was that she was not aware that there was a Facebook page created was as a result of the Department of Education in Northern Cape and saw the names of the parents on the Facebook page created. His Husband received a letter from a cousin written by a principal.

RESPONDENT’S EVIDENCE.

Ricardo Tommy Britz testified as follows:

19. His evidence was that the applicant was initially suspended on 09 February 2023, but it was uplifted on 09 May 2023. A new evidence was discovered and the applicant was again suspended on 08 May 2023 on allegations of a serious nature.

20. The employer considered the seriousness of the new evidence in a serious light and it was important to suspend the applicant pending the disciplinary hearing. The disciplinary hearing was delayed by the applicant representative requesting documents, but both parties agreed to a postponement before the 07 and 08 August 2023.

21. The disciplinary hearing chairperson was asked to recuse himself but ruled that there were no merits to persuade him to recuse himself. The disciplinary chairperson also ruled that the applicant’s suspension should continue pending the finalization of the disciplinary hearing.

UNDER CROSS EXAMINATION

22. It was his evidence that he knows the suspension time frames of the Employment of Educators Act, but there was a new evidence which was discovered after the first suspension. The second suspension was issued on 05 May 2023 received by the applicant.

23. He testified that there was an email communication from the chairperson that parties agreed to a postponement of the disciplinary hearing citing that the applicant was not ready due to insufficient information.

24. It was his evidence that the learners could not have been placed at risk because they were stressed. There was no intention to prolong the suspension of the applicant because a state accountant needed to reconcile the bank statements and finalize the investigation. The employer did its best to finalize the investigation.

25. He further testified the applicant requested the audio recordings to submit the closing arguments which she failed to submit. The applicant was on full paid suspension and she did not lose anything.

ANALYSIS OF EVIDENCE AND ARGUMENT

26. Section 186 (2) (b) of the Labour Relations Act provides that the “unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.

27. In Grogan, Workplace Law, suggests that the term “suspension” in Section 186 (2) refers only to suspension imposed as a disciplinary penalty and not to the situation when an employer suspends an employee pending a disciplinary hearing.

28. The proposition that all suspensions should be procedurally fair to avoid the stigma of an Unfair Labour Practice, on the other hand, requires some qualification. Fairness is by its nature is flexible. Ultimately, procedural fairness depends in each case upon weighing and balancing of a range of factors of a range of factors including the nature of the decision, the rights, interests and expectations affected by it and the consequences resulting from it.

29. Suspension as a disciplinary sanction, the right to a hearing or more accurately the standard of procedural fairness, may legitimately be attenuated, for three principal reasons. The employer should have sufficient reasons to believe, a prima facie case at least that the employee has engaged in a serious misconduct.

30. There must be an objectively justifiable reasons to deny the employee access to the work place based on the integrity of any pending investigation into misconduct. The employee should be afforded the opportunity to state a case before the employer makes a final decision to suspend.

31. The prejudice that the employee may suffer as a result of suspension is not only limited to financial loss but may extend to issues of integrity, dignity, reputation and standing in the community.

32. The right to a hearing prior to a precautionary suspension arises therefore as a right within the provisions of the Labour Relations Act, the correlative of the duty on the employers not to subject employees to Unfair Labour Practices. That being the case, the right is a statutory right for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to those rights.

33. Firstly, as in the present case, precautionary suspension tend to be on full pay with the consequences of that the prejudice flowing from the action is significantly contained and minimized.

34. The suspension was unfair and I declare it to be so, essentially for the following reasons. Firstly, there was no objectively justifiable reasons to deny the applicant access to the work place and I hold the view that the applicant had not been afforded an opportunity and proper right to be heard prior to her suspension.

35. I therefore, deem it unnecessary to consider whether the respondent had justifiable reasons to believe that the applicant had engaged in serious misconduct. .

36. This suspension constituted Unfair Labour Practice in that it was unwarranted and inherently unfair from both the procedural and substantive point of view. The applicant was left in the dark as to the nature of the offence and she was not offered an opportunity to say why she should not be suspended or state her case in response to the suspension letter issued.

37. The responded has not complied with the principles of audi alteram partem (the right to be heard) in that the allegations for suspension has not been responded to and had not been sufficiently popularized and denied time to respond.

38. Suspension usually prejudices an alleged offender psychologically and in terms of future job prospects. See Ministers’ Council House of Representative and Others (1991) 12 ILJ 761 at 775 to 776 where the Court held “The implications of being barred from going to work and pursuing one’s chosen calling, and of being seen by the community round one to be so barred, are not so immediately realized by the outside observer and appear, with respect, perhaps to have been underestimated”.

39. There are indeed substantial social and personal implications inherent in that aspect of suspension. These considerations weigh heavily in South Africa as they do in other Countries.

40. I am persuaded by the comments made by Professor Halton Cheadle in his article; Regulated Flexibility Revisiting the Labour Relations Act and the Blea (2006) 27 ILJ 663 at 683 to 684 where the learned author said: “ It is suspension pending disciplinary hearing that requires considered review”. There are two abuses: arbitrary decisions and the inordinate period of suspension.

41. Suspension is the employment equivalent to arrest. The only rationale for suspension is the reasonable apprehension that the employee will interfere with the investigation or repeat the misconduct. It follows that it is the only in exceptional circumstances that the employee should be suspended pending a disciplinary enquiry.
42. The employee suffer palpable prejudice to reputation, advancement and fulfillment. These limited reasons for suspension and this prejudice make a compelling case for regulation. There was no evidence led by the respondent’s witness that the applicant will bear pressure on her subordinates to act inappropriately and the assertion that she would do it when she remained in her position at work.

43. The employer should believe that (reasonably) that the presence of an employee might jeopardize any investigation and the interference with the witnesses during the course of investigation.

44. In conclusion, there must be enough evidence of actual financial loss suffered by the person claiming financial loss during the suspension period. There must be proof that the loss was incurred and caused by the Unfair Labour Practice. The loss must be foreseeable, i.e. not too remote or speculate.

45. The undisputed evidence from the applicant was that the employer suspended her on full salary.

46. I therefore do not have any reason not to uplift the unfair suspension of the applicant and declare it to be unfair as a prayer.

47. The suspension of the applicant is unfair and uplifted.

AWARD

48. The respondent is found to have committed an Unfair Labour Practice with regard to the suspension of the applicant, Zelda Zuricka Vos in terms of Section 186 (2) (b) of the Labour Relations Act of 1995, as amended.

49. The respondent is hereby ordered to uplift the suspension of Zelda Zuricka Vos by not later than 01 March 2024 or the first working day thereafter and to permit the applicant, Zelda Zuricka Vos to return to her position as a Principal with full salary every month.


ELRC Panelist: Mothusi Maje
10 February 2024