ELRC849-23/24EC

Case Number: ELRC849-23/24EC
Panelist: Thobela Obey Mqamelo
Date of Award: 17 May 2024

In the Arbitration between

Lukholo Jim
(Applicant)

And

King Sabata Dalindyebo TVET College
(Respondents)


DETAILS OF HEARING AND REPRESENTATION

1. This unfair labour practice dispute with was set down for virtual hearing in terms of section 186(2)(b) of the Labour Relations Act 66 of 1995 (LRA), under the auspices of the Labour Relations Council (The Council)

2. The applicant, Lukholo Jim (Mr Jim) was present and was represented by Monique Cooper (Ms Cooper) an Attorney from Monique Cooper Incorporated Attorneys.

3. The respondent, King Sabata Dalindyebo TVET College was present and was represented by Sandile Nkomozibomvu (Mr Nkomozibomvu) an Employee Relations Manager at the respondent.
4. Parties submitted their opening statements orally.

5. Only the applicant submitted a bundle of documents and was submitted via email to the Council.

6. Mr Lukholo Jim and Mr Sandile Nkomozibomvu testified during the proceedings.

7. Evidence was tendered under Oath.

8. The proceedings were manually and digitally recorded.

9. Both parties agreed to file their closing arguments in writing by no later than 07 May 2024.

10. The applicant filed his closing arguments on 07 May 2024, and the respondent filed its closing arguments on 08 May 2024 outside the agreed time frame.

ISSUE TO BE DECIDED

11. I must determine whether the respondent, King Sabata Dalindyebo has committed any unfair labour practice in relation to suspension of the applicant, Mr Lukholo Jim.

12. The applicant seeks the suspension be set aside.

BACKGROUND TO THE MATTER

13. The applicant, Lukholo Jim commenced employment with the respondent, King Sabata Dalindyebo TVET College on 01 January 2015, he is currently employed as a Post level 1 Lecturer, and is earning a salary of R337,248.00 per annum.

14. He is challenging an Unfair Labour Practice involving the respondent’s unfair suspension of him.


COMMON CAUSE MATTERS

15. It is common cause that the applicant has been on suspension as from on 07 February 2024.

16. The applicant is receiving his full salary and benefits while on suspension.

SURVEY OF EVIDENCE AND ARGUMENT

17. This is a summary of the evidence pertinent to this dispute as required in terms of Section 138(7)(a) of the LRA.

APPLICANTS 1st WITNESS
LUKHOLO JIM (MR JIM)

18. The applicant testified he was suspended on 07 February 2024. He was given an opportunity to make submissions before the suspension, which he submitted through a letter from his attorneys, Wakaba Attorneys. He is not aware of the reason for his suspension as he has not been issued with a charge sheet since his suspension.

19. It is the applicant’s testimony that his suspension is unfair in that it is more than the period of 30 days, and that the is no reason for the suspension to be more that 30 days as there is also no application to extend the suspension in terms of resolution 1 of 2003, as amended. He referred to the amended of resolution in the bundle in support of his testimony.

20. The applicant further testified that he is prejudiced by the suspension in that he is unable to apply for present job opportunities as he does not have the working tools with him, and he is restricted from entering the premises of the respondent. He had to complete an application at the entry gate of the respondent when he was applying for the position he was interested at the respondent.

21. The applicant seeks the suspension to be uplifted.

RESPONDENTS 1st WITNESS
SANDILE NKOMOZIBOMVU (MR NKOMOZIBOMVU)

22. He testified that the applicant has been put on suspension for allegations of misconduct.

23. According to the testimony of Mr Nkomozibomvu the reason for the lengthy period of suspension is that the investigation was taking long to be concluded due to reasons beyond the control of the respondent, such as on campus protest by learners.

24. He further testified that presently the investigation is completed, and a charge sheet will be issued soon.

ANALYSIS OF EVIDENCE

25. This matter was referred in terms of Section 186(2)(b) of the LRA in relation to suspension. In this regard an unfair labour practice means any unfair act or omission that arises between an employer and employee involving a suspension.

26. Item 7.2 (c) of the amended Resolution 1 of the PSCBC (the resolution) relates to precautionary suspension, and it states the following, ‘’If an employee is suspended, or transferred as a precautionary measure, the employer must hold a disciplinary hearing within a month or 60 days, depending on the complexity of the matter and length of the investigation. The chair of the hearing must then decide on any further postponement.’’

27. It is proved by the evidence in front of me that up to the day of the arbitration the respondent has failed to convene a disciplinary hearing for the applicant within a period of 60 days, despite the provision of the resolution.

28. It is common cause that no extension has been sought by the respondent for the suspension, and that no postponement has been granted by the chairperson of the disciplinary hearing, as the chairperson has just been recently appointed by the respondent.

29. In the case of SAPO vs Janse van Vuuren and Others (JR832/07) (2008) ZALC 33, it was held that ‘’a suspension, even whilst investigations are underway, amounts to an unfair labour practice, if the period of suspension exceeds the period stipulated in a disciplinary code, collective agreement, regulations, or contract of employment.’’

30. The collective agreement (resolution 1) makes provision for the period of suspension. Although according to the respondent’s testimony the applicant was suspended for serious allegations, the disciplinary hearing must have been convened within 60 days. The conduct amounts to an unfair labour practice.

31. Since the applicant has not been issued with the charge sheet, there is no proof of the seriousness of the allegations levelled against the applicant.

32. Unlike other employees the applicant by virtue of the work tools having been taken from him, the suspension limits him from access and the opportunity to apply for a promotional opportunity within the respondent.

33. I find the conduct of the respondent, King Sabata Dalindyebo TVET College, against the applicant, Lukholo Jim, amounts to an unfair labour practice, and that the suspension is worth being uplifted.

34. I therefore make the following order.

AWARD

35. I find the King Sabata Dalindyebo TVET College has committed an unfair labour practice against the applicant, Lukholo Jim in relation to suspension.

36. The suspension of the applicant, Lukholo Jim, by the respondent, King Sabata Dalindeyebo TVET College, is uplifted.

37. The applicant must report for duty by no later than 27 May 2024.

Signature:


Commissioner: Thobela Obey Mqamelo
Sector: Higher Education