ELRC329-23/24GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC329-23/24GP

In the matter between

Nkosi Temba Applicant

And

Gauteng Department of Education Respondent

ARBITRATION AWARD

Date: 13 February 2024

Parties present:

Arbitrator: Mr C Khazamula
Applicant representative: Mr T Nkosi
Employer’s Representative: Mr N Manda

DETAILS OF HEARING AND REPRESENTATION

1. The matter was an unfair labour practice dispute in terms of Section 186 (2) of the Labour Relations Act, 66 of 1995 (“the LRA”) and Part C of the Council’s constitution.

2. The dispute was set down for arbitration before me on 20 October 2023 and continued intermittently on various days until it was concluded on 24 January 2024 at the Respondent’s offices.

3. Parties submitted bundles of documents as evidence and the Applicant’s bundle was labelled bundle “A” and the Respondent’s bundle was labelled bundle “R”.

4. Parties further submitted closing arguments on or before 02 February 2024.

5. The proceedings were digitally recorded.

ISSUE(S) TO BE DECIDED

6. I have to determine whether the Applicant’s precautionary suspension has expired or not.

7. The relief sought by the Applicant is for his suspension to be set aside and to be compensated.


BACKGROUND TO THE ISSUE

8. The Applicant was appointed by the Respondent in the post of a Principal at Kreft Primary School.

9. On 05 June 2023, the Respondent placed the Applicant on a precautionary suspension.

10. The Applicant referred a dispute of unfair labour practice in terms of Section 186 (2) (b) of the LRA and the matter was set down by the Council before me for arbitration.

SURVEY OF EVIDENCE AND ARGUMENT
The Applicant’s Testimony and Evidence

11. The Applicant testified in his evidence in chief, that on 17 May 2023, he was called to a meeting with the Respondent’s District Director and other officials where he was issued with a letter of a precautionary suspension however the letter had discrepancies on his persal number .

12. The Applicant refused to accept the letter until the discrepancies were corrected . The Applicant thereafter took a leave of absence from 18 May 2023 to 05 June 2023.

13. On 05 June 2023, the Respondent issued a corrected precautionary transfer letter to the Applicant and he was told that he was not supposed to be at school.
14. The precautionary transfer was for a maximum period of sixty (60) days and it was supposed to end on 05 August 2023, however, the Applicant submitted that he was still under suspension.
15. On 15 August 2023, the Applicant referred a dispute to the Council after he realised that the maximum period of sixty (60) days had expired on 05 August 2023.
16. The Applicant further submitted that even ninety days in terms (90) Item 6 (1) Schedule 2 of Employers Act 76 of 1998 (“Schedule 2 of EEA”) had expired. In terms of Item 6 (2) of the EEA, the Respondent did not conclude a disciplinary hearing within one (1) month and nothing was communicated to him or the presiding officer had not been appointed.
17. The Applicant testified that he suffered prejudice because people were asking him why he was not at work. The public did not trust that he was suspended for sixty (60) days but he was dismissed.
18. The Applicant was appointed by the Respondent to perform the functions of the School Governing Body (“the SGB”) in terms of section 38 of the South African Schools Act (“section 38) and he was paid an allowance of R5 000.00 monthly. This allowance was stopped after he was suspended. This meant he suffered a financial prejudice.

The Respondent’s Testimony and Evidence

The Respondent’s 1st Witness

19. The Respondent’s first (1st) witness Peter Nkosi (“Nkosi”) testified that he was in charge of dispute management for the Respondent’s Ekurhuleni North District.

20. Nkosi submitted that when the employee was suspended, such an employee would remain suspended until the outcome of a disciplinary hearing or appeal. If the suspension was lifted, the Respondent would communicate in writing.

21. The Respondent has two categories of employees who are employed in terms of EEA and the Public Service Act.

22. In terms of the EEA, Schedule 2, the employees employed in terms of the EEA should not be suspended for more than ninety (90) days whereas the employees who were employed in terms of the Public Service Act should not be suspended for not more than sixty (60) days.

23. The sixty (60) days specified in the Applicant’s precautionary transfer was a genuine mistake because it did not apply to the Applicant as an Educator. The EEA applied to him and he took advantage of that mistake because of his previous experience as a Labour Relations Officer.

24. The Section 38 allowance was an agreement between the Applicant and the SGB. The Applicant did not deserve a payment after he was suspended and also because he did not render any service during the suspension for the Kreft Primary School.

The Respondent’s 2nd Witness

25. The Respondent’s second (2nd) witness Themba Tshangela (“Tshangela”) testified that he was employed by the Respondent as a Labour Relations Officer.

26. Upon serving the letter of precautionary transfer to the Applicant, Tshangela realised the maximum period of sixty (60) days did not apply to the Applicant because he was appointed as an Educator in terms of EEA. In terms of the EEA, the maximum period of ninety (90) applied to the Applicant. Tshangela brought this to the attention of his supervisor however nothing was done.

27. Tshangela submitted that even if the timelines were followed, either sixty (60) or ninety (90) days had not expired. After the letter of precautionary transfer was served to the Applicant, there was a school recess between June 2023 and July 2023. This fell outside the Council’s resolution in that cases cannot sit during school holidays. The Applicant’s referral to the Council was premature.

The Respondent’s 3rd witness

28. The Respondent’s third (3rd) witness Kgomotso Tshiovhe (“Tshiovhe”) testified that he was the Respondent’s Deputy Director – Labour Relations. Her directorate dealt with the Respondent’s high-profile cases. One of her duties inter-alia was to manage the precautionary transfer/suspensions.

29. The maximum period for the Applicant’s suspension in terms of the EEA was ninety (90) days. The sixty (60) days referred to by the Applicant were meant for Public Service Act employees which was an error.


ANALYSIS OF EVIDENCE AND ARGUMENTS

30. It was common cause that the Applicant was placed on precautionary transfer. It was common cause that the Applicant’s precautionary transfer stated that the maximum period of six (60) days.

31. I have stated during the proceedings that incidents before and after the maximum period of sixty days of the Applicant’s precautionary transfer were irrelevant because the reason why the Applicant had referred the dispute was that the maximum sixty days of his precautionary transfer had lapsed.

32. The Applicant in the closing arguments stated that I had to determine procedural unfairness, however, the was no evidence advanced by the Applicant on any procedural irregularity by the Respondent. I, therefore, dismiss the allegations of procedural unfairness.

33. Based on the evidence, the Applicant was previously suspended by the Respondent and that suspension was lifted as provided for in Item 6(1) of Schedule 2 of the EEA .

34. After the Applicant’s suspension was lifted, the Applicant was again placed on a precautionary transfer effective from 05 June 2023. This is provided for in Item 6 (2) of Schedule 2 of the EEA .

35. Departing from the above, it was clear that suspension and transfer are different processes. In case of suspension or transfer of an Educator, the Employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer. The Applicant advanced this version however I find that it was a misplaced version because that was not the dispute which the Applicant referred to the Council.

36. It should be noted that Item 6 (1) of Schedule 2 of the EEA only stipulates that the Employer may suspend the Educator on full pay for a maximum period of three months.

37. Sub-item 1 of Item 6 of Schedule 2 of the EEA, does not provide for a transfer to be on full pay for a maximum period of three (3) months because when the employee is transferred there is no loss of remuneration however when an employee is suspended or transferred, Item 6 (3) of Schedule 2 of the EEA places an obligation to the employer to conclude a disciplinary enquiry within a month and only a presiding officer may decide on any further postponement with a limit up to ninety (90) days .

38. The Applicant in his closing arguments cited the authority in Lekabe v Minister: Department of Justice and Constitutional Development(2009) 30 ILJ 2444 (LC) and argued that the Court uplifted the employee’s suspension considering that the sixty days have expired. The Court further held that the respondent should by that time completed its investigations and there was no basis for the suspension should be prolonged further.

39. The facts of the Lekabe matter are distinguishable from the Applicant’s facts in that Lekabe wanted the honourable Court to interdict the Employer to conduct a disciplinary hearing after sixty (60) days of his suspension had expired however the Court dismissed his application.

40. I agree with the Applicant that the Court uplifted Lekabe's suspension however in the Applicant’s case, he was not suspended but placed on a precautionary transfer and Lekabe was suspended in terms of the Senior Management Service Handbook Issued in terms of regulation 1 D of chapter 4 of the Public Service Regulation, 2001.

41. I, therefore, find that Item 6 of the EEA does not provide any limit for the transfer except to compel the employer to conclude the disciplinary hearing as stipulated in Item 6 (3) of Schedule 2 of the EEA.

42. The Applicant's case was that the maximum of sixty (60) days of the Applicant’s suspension by the Respondent had expired even though the Applicant was placed on precautionary transfer. I also do not see the need to elaborate further on this point.

43. The Applicant was placed on a precautionary transfer, he temporarily ceased to perform his duties at the School where he was employed with reasons as stipulated in the letter of precautionary transfer.

44. In case of the precautionary transfer, the Employee continues to perform the duties as directed by the Employer at the different site with full pay and benefits. Nothing changes except the normal place of work including the performance review processes. This also would be the same for the Applicant.

45. The Respondent’s defence was that the maximum of sixty (60) days mentioned on the Applicant’s precautionary transfer was an error. The Respondent’s witnesses were consistent in that it was meant for employees who were employed in terms of the Public Service Act.

46. Tshiovhe testified she was the responsible person who was managing the precautionary transfers and suspensions. She was informed by her Assistant Director that the District officials raised the sixty (60) days error.

47. While Tshiovhe was rectifying the Applicant’s precautionary transfer letter, she was again informed by an Administrator at the head office about the Applicant’s dispute. Because of that, she left the Applicant precautionary suspension as it was. This was not disputed by the Applicant and I also find this version plausible.

48. In cross-examination, Tshiovhe could not recall when she was told about the error however she managed the database of employees who were either placed on precautionary transfer or suspension. The Applicant by the end of 05 August 2023, was still under precautionary transfer. This was not disputed by the Applicant and I find this version credible because Tshiove was the responsible person for managing the database.

49. Tshiovhe was made aware by the ASD that the error on the Applicant’s persal number on the precautionary transfer letter of 17 May 2023, was correct. It was not disputed that the Applicant previously held the position of the Respondent’s Labour Relations Officer. This places an aggravating factor on the Applicant as testified by the Respondent’s witnesses that he knew the labour relations processes.

50. Moreover, the Applicant in his duties as a Principal, managed the personnel function of his subordinates. I find that the Applicant was not a lay person and in as much as he was able to identify the error on his incorrect persal number, he would have been able to identify any other error and raise it with the Respondent.

51. As stated above, there are no time limits placed on the precautionary transfer of an employee in terms of Item 6 of Schedule 2 of the EEA except to place limits on the Employer to hold a disciplinary enquiry and the presiding officer to postpone the disciplinary hearings. The emphasis of the heading “Suspension” does not in my view mean that where a transfer is silent in any provision of Item 6, means that transfer should be treated in the same way as suspension.

52. It was not disputed that the Public Service Act does not apply to the Applicant and I agree. Clause 7.2 (c) PSCBC Resolution 1 of 2003 (“PSCBC Resolution 1) placed a maximum precautionary transfer or suspension to sixty (60) days however Item 6 (1)of Schedule 2 of the EEA, only placed the maximum limit when an employee was suspended to three months. Concerning transfer there is no legislative limit.

53. In conclusion, I find that the Applicant was incorrect in relying on the provision of Section 186(2) (b) because the section does not apply to his dispute. The Applicant was placed on a precautionary transfer, not suspension.

54. Even if the Applicant was suspended and the maximum period of suspension was sixty (60) days, the dispute would have been premature because according to Item 6 (1), the maximum period of suspension was three (3) months meaning that his suspension would have lapsed on 05 September 2023.

AWARD

55. I, therefore, issue the following award;

55.1. The Applicant failed to prove that the Respondent committed an act of unfair labour practice in terms of Section 186(2) (b) of the LRA.
55.2. The Applicant’s application of unfair labour practice in terms of Section 186(2) (b) of the LRA is dismissed.
55.3. The ELRC is directed to close the file.

Chance Khazamula
ELRC Panelist
Date: 13 February 2024