ELRC869-23/24GP

Case Number: ELRC869-23/24 GP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 9th of July 2024

In the HEARING between

Themba Nkosi

(Union/Applicant)

And

(Respondent)

Gauteng Department of Education

Employer representative:
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative:

Respondent’s address:

Telephone:
Telefax:
E-mail:

DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for arbitration on the 22 May 2024, the 12 June 2024 and eventually finalized on the 14 June 2024.

2. The parties requested and were granted the opportunity to submit written closing arguments by the 21 June 2024. Both sets of written arguments were timeously received.

3. I also requested a one-week extension for the submission of my award which was granted and extends the submission date to the 8 July 2024.

4. Mr. Liberty Peterson, an attorney from S.E Kanyoka Attorneys, represented the Applicant.

5. Ms. Nombeko Manda, a labour relations official, represented the employer.

6. The proceedings were digitally recorded, and long hand notes were also kept of the proceedings. The Applicant made use of as bundle of documents marked ‘A’ consisting of 98 pages and the Respondent also made use of a bundle marked ‘B’ consisting of 98 pages.

ISSUE IN DISPUTE

7. Whether the Respondent unfairly suspended the Applicant.

BACKGROUND TO THE ISSUE IN DISPUTE AND COMMON CAUSE FACTS

8. The Respondent employed the Applicant as a principal of the Laerskool Kreft, Ekurhuleni North District, on the 1 April 2021.

9. The Applicant was placed on precautionary transfer on the 1 November 2022 and transferred to the district office.

10. Later his precautionary transfer was uplifted on the 4 April 2023. He returned to his school on the 13 April 2023 and resumed his normal duties.

11. The Applicant was once again placed on precautionary transfer on the 5 June 2023 for a period of 60 days as indicated in the suspension letter dated the 12 May 2023, issued to him on the 5 June 2023, pending investigations into further allegations of misconduct.

12. The precautionary suspension is in terms of the provisions of Schedule 2 of the Employment of Educators Act, no 76 of 1998, as amended (EEA) which stipulates that suspensions must be for a period of 3 months.

13. It is common cause that the 3 months has lapsed, and that the Applicant is still on precautionary suspension.

14. On the 15 March 2024, the Applicant received a second letter dated the 8 March 2024 confirming that he was still on precautionary suspension which was now for a further period of 90 days.

15. It is further common cause that the Applicant is paid his full remuneration with applicable benefits during the suspension period.

16. On the 19 March 2024, the Applicant was issued with a charge sheet and a notice of a disciplinary hearing to be held on the 15 and 16 April 2024.

17. The disciplinary enquiry was postponed on the 15 April 2024 pending the issue of the ruling by the presiding officer on certain preliminary issues raised by the Applicant relating to the question of whether the Applicant is a SADTU trade union official and thus whether the trade union should have been consulted prior to the issue of disciplinary charges against the Applicant.

18. The essence of the dispute is whether:

18.1 the precautionary transfers were issued for a fair reason.
18.2 the precautionary suspension of the Applicant was effected following a
fair procedure in terms of Schedule 2 of the EEA.
18.3 the Applicant is entitled to an SGB allowance in terms of section
38A of the South African Schools Act, no 84 of 1996 (SASA).
18.4 the Applicant is entitled to the QMS assessment applicable benefits for
June 2023 and November 2023.

SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT

19. The Applicant testified that he is employed by the Education Department of Gauteng as Principal at Laerskool Kreft since 1 April 1998.

20. He testified that he was suspended on the 5 June 2023 based on the allegation that he stopped the loading of payments to service providers.

21. The Applicant further testified that these allegations are not true. He stated that it is not his responsibility to load or instruct the treasury to load payments. He testified that the treasury is the one who is responsible for uploading the payments of service providers.

22. He testified that as a principal he is only responsible for releasing the payments after they have been uploaded by treasury and checked by other members of the School Governing Board.

23. The Applicant further testified that during the period he is being accused of stopping the uploading of payments the school was under section 25(1) of the South African Schools Act, 1996. He testified that when the school is placed under Section 25(1) of the SASA the Department appoints the District Director to perform the functions of the SGB. The District Director will now be responsible for all the duties of the SGB including uploading and realizing of all payments.

24. He testified that he has been on suspension for 355 days as of 22 May 2024 when the arbitration proceedings started.

25. He testified that he went to school in February 2024 to enquire about the status of his suspension because the employer did not communicate with him after the suspension lapsed on the 5 September 2023. He stated that when he went back to school the Department officials came and they told him that they will get back to him with feedback regarding the status of his suspension. He stated that he then received a letter from the Department on 15 March 2024 confirming that he was still on suspension.

26. The Applicant testified that the suspension is affecting his integrity and dignity. He states that he is a church leader and most of the people at church and community no longer believe that is still on suspension because he has been sitting at home for a very long time. He also stated that the suspension is affecting his job security.

27. The Applicant further testified that the suspension is also affecting his pay progression. He stated that an employee receives pay progression after he has been assessed and he can only be assessed when he is present at work. He testified that he has not been able to get pay progression because he is on suspension. He also testified that he is not able to get extra work in terms of S38A of the SASA because he is on suspension. He states that before his suspension he was able to get pay progression and extra work in terms of S38A.

28. During cross examination the applicant was asked why he said he is prejudiced when he is receiving a full salary and he said the suspension is affecting his pay progression and it is impacting upon on his dignity and job security.

SURVEY OF RESPONDENT’S EVIDENCE AND ARGUMENT

29. The Respondent presented five witnesses during the course of its testimony (surveyed not necessarily in the order in which they testified).

30. Mr. Peter Nkosi – DCES: Labour Relations (Labour Relations Officer) testified on the general circumstances relating to this matter as the manager of the unit.

31. Secondly, Mr. Themba Tshangela- SES: Labour Relations (Labour Relations Officer) presented evidence on the Applicants concerns about pay progression and section 38A payments.
32. Thirdly, Mr. W. Snyman- the lawfully appointed Deputy Principal and Acting Principal at Kreft Primary School testified to the events that occurred at the time that the Applicant returned to school.

33. The fourth witness was Ms. Betty Makhale, a Senior Personnel Officer in the PMD section.

34. The fifth witness was Ms. N. Saula an Educators assistant (HR administrator) at Kreft Primary School.

35. The Applicant was placed on precautionary suspension by the Respondent on 5 June 2023 with full pay pending an investigation and disciplinary hearing into allegations of misconduct in terms of Item 6 Schedule 2 of the EEA.

36. On 15 August 2023 the Applicant lodged a separate unfair labour practice dispute in terms of s 186 (2) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA) with the ELRC based on the first precautionary suspension letter he received from the respondent which indicates that the precautionary suspension will remain in effect for 60 calendar days pending the outcome of the disciplinary proceedings and/or appeal. The gist of the dispute was that the Respondent committed an unfair labour practice by keeping him on suspension for longer than 60 days. An award was issued on 9 February 2024 and a variation award on the 20 February 2024. Both decisions did not go in favour of the Applicant.

37. It is vital to note that the Applicant was served with his second precautionary transfer on the 01 November 2022. He received the charge sheet on 24 February 2023 and the precautionary transfer was uplifted on the 31st of March 2023 considering the expiry of 90 days. The Applicant returned to school. Other allegations of misconduct were reported to the district and the Applicant was again placed on precautionary suspension on 5 June 2023.

38. On 28 February 2024 the Applicant returned to school without consulting the employer. On 28 February 2024, District Officials, Circuit Manager, Mr. Victor Petlo; Cluster Leader (IDSO), Ms. Glenda Boyce; IDSO, Ms. Adelaide Mashego, Labour Relations Officers, Mr. P. Nkosi; Mr. Themba Tshangela and Mr. Shole visited the school to enquire about the Applicant’s presence at the school whereas he was prohibited to visit the school and had not consulted a Labour Relations Officer and/or had not received a letter from the Head of Department uplifting his precautionary suspension.

39. The officials instructed the Applicant to vacate the premises and he refused. The Applicant told the Officials that his precautionary suspension expired and that was the reason for returning to school. He remained at school performing his duties as the principal from the 28th of February 2024 to the 15th of March 2024.

40. On 15 March 2024, the Applicant was served with a fresh precautionary suspension letter.

41. The Applicant testified that he returned to school to enquire about his precautionary suspension and that he did not perform any official duties. The evidence was disputed by the respondent witnesses, Snyman testified that the Applicant returned to school on the 28 February 2024 and resumed full duties.

42. The Applicant chased him out of the Principal’s Office. Snyman was occupying the office as he was appointed as the Acting Principal. During the staff briefing, the Applicant said that, in South Africa, problems started when Jan van Riebeek landed in South Africa.

43. The Applicant created confusion at school, the staff were not sure who to report to or who is the principal. The Applicant performed the duties of a principal, gave a staff briefing; signed school documents as the principal; requested appointment letters, adverts, and minutes of the appointments from three employees, Ms. D. Willemse, Ms. Q. Saule and Ms. N. Toba.

44. The Applicant delayed the process of completing the disciplinary processes against him, he did not indicate in the following instances that he was a union representative for the employer to implement a consultation processes in terms of Schedule 8 item 4(2) of the LRA.

45. When his union, SADTU responded on his behalf to the letter this was an opportunity for the Applicant to state his side of events. (see Page 39 Bundle B).

46. He received an Audi letter and the last paragraph of the Audi Letter (Page 38, Bundle B) states that: ‘Further be advised to indicate whether you are a trade union official or not, and also to consult your union representative as your response may be used in the disciplinary hearing should the department prefer charges against you’.

47. The Applicant claimed that SADTU informed the Respondent that he was a union representative through email around May 2023. The question arises: what is the reason for keeping quiet and only raising the issue of the union official status so much later.

48. The Applicant brought to the attention of the employer that he was a union representative on the 23 August 2023 during the hearing and that affected the finalisation of the disciplinary processes. The hearing was delayed by the implementation of the consultation processes with SADTU.

49. The employer provisionally withdrew all the disciplinary charges when consultations with the union commenced.

50. The Applicant received the withdrawal of charges letter on the 15 November 2023. The invitation for consultation was issued on the 23 November 2023 for the 30 November 2023. The union (SADTU) did not honour the invitation. The union sent an email indicating that the invitation cannot be honoured on the 29 November 2023 that was not seen by the Director: Labour Relations (Peter Nkosi) until it was produced on 2 May 2024. It was the responsibility of the union to confirm if the Director: Labour Relations received the apology for the 30th November 2023 meeting or not.

51. The Director Labour Relations gave instructions that all matters that were scheduled for consultation on 30 November 2023 after the non-attendance of the union should be rescheduled for consultation.

52. The Respondent issued the Applicant with a fresh charge sheet with combined allegations on the 19 March 2024 and a notice for prehearing and hearing. The matter was rescheduled for hearing and preliminary issues were raised and the presiding officer made a ruling for the matter to proceed.

53. After the email from SADTU was produced on the 2 May 2024, the invitation for consultation was eventually re- issued to the union (SADTU) for 09 May 2024.

54. The Applicant’s evidence that the consultation process was not finalised on the 09 May 2024 was disputed by Respondent witnesses.

55. Tshangela testified that he did not receive a response to the email he sent to Head Office enquiring about an update of the consultation, He received a verbal response from Mr. Macheke, who was representing the employer during the consultation. Mr. Macheke told him that the decision during the consultation was that all matters had been set to proceed. Mr. Tshangela evidence was corroborated by Peter Nkosi who testified that he received an email from Head Office when he returned to work from sick leave. The email indicated that the consultation process for the Applicant’s matter was finalised and the disciplinary enquiry should proceed. This evidence showed that the employer is prepared to proceed with the matter.

56. Mr. Peter Nkosi testified that he was an Employer Representative during the initial disciplinary processes involving the Applicant. It was his further testimony that the Applicant delayed the disciplinary process (see Page 54 of Bundle B).

57. The Applicant received the charge sheet on the 22 February 2023 and was not available in March for prehearing and hearing.

58. On the 26 April 2023, the hearing could not continue as the Applicant claimed that he was incorrectly served with a set down notice even though he was present in the hearing. He dismissed his representative and stated that he will represent himself and the Presiding Officer requested that the Applicant be served properly.

59. The Applicant indicated that for the whole of June, he will not be available as he will transport his father/ relative to and from hospital. He submitted a document found at Pg 51 of Bundle B.

60. Between the 23 June and 18 July 2023 Schools were on recess, the matter could not sit due to a standing agreement with organised labour that no internal hearings will sit during school holidays. Although there is that agreement, the Applicant should have requested for his matter to continue during school holidays if he really needed his matter to be completed as other employees had also requested in the past.

61. The disciplinary hearing was scheduled for the 7 August 2023 and the Presiding Officer was not available, and the proposed new date was the 15 and 16 August 2023 and the postponement was communicated to the Applicant. The Applicant attended the hearing on 7 August 2023 and indicated that he will not be available on the 15 and 16 August 2023, he suggested the 23 and 24 August 2023.

62. On the 23 August 2023, he raised the issue that he was a union official and the lack of consultation with SADTU for the first time.

ANALYSIS OF EVIDENCE AND ARGUMENT

63. Item 6 Schedule 2 of the EEA states that:
64. In the case of serious misconduct in terms of section 17, the employer may suspend the educator on full pay for maximum period of three months.

65. In the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in subitem (1), or transfer the educator to another post, if the employer believes that the presence of the educator may jeopardise any investigation into the alleged misconduct or endanger the well-being or safety of any person at the workplace.

66. If an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer.

67. The presiding officer may decide on any further postponement. Such a postponement must not exceed 90 days from the date of suspension.

68. If the proceedings are not concluded within 90 days, the employer must enquire from the presiding officer what the reasons for the delay are and give directions for the speedy conclusion of the proceedings.

69. At the time of enquiry contemplated in paragraph (c) the employer may, after giving the educator an opportunity to make representations, direct that the further suspension will be without pay.

70. It is common cause in this factual matrix that none of the timeframes mentioned in Item 6 of Schedule 2 of the EEA were complied with.

71. The Applicant had referred the first of two alleged unfair labour practice referrals and the first decision later varied were issued in February 2024. It was at this stage that the Applicant decided to return to school probably anticipating that the Panelist’s decision would be in his favour.

72. The Applicant knew or ought to have known that he had to communicate with the Labour Relations Office or receive a letter from the Head of Department withdrawing his precautionary suspension before returning to school.

73. The Applicant created confusion at school. The Applicant as the former Labour Relations Officer and the Principal, was aware of the procedures, he had to follow for returning to school. The employer received a further serious allegation of racism against the Applicant during the period when he returned to school (from 28 February 2024 to 15 March 2024. The Applicant was served with the new precautionary suspension letter on the 15 March 2024.

74. The Applicant based his dispute referral on the period of days he had been on precautionary suspension without considering the circumstances in this matter.

75. It is clear from what transpired at the school when the Applicant returned that if he is allowed to return before completion of the disciplinary enquiry, the chances of him committing further acts of misconduct and further acts of disruption are high.

76. On a prima facie basis there is sufficient evidence that the Applicant committed additional acts of misconduct when he returned to school after his first precautionary transfer.

77. Peter Nkosi and Snyman corroborated their testimony that the Applicant had made racial comments on his unauthorized return to school in February 2024.

78. The Applicant claims that he was prejudiced by the way the precautionary transfers and suspensions unfolded.

79. I find that the Applicant is not prejudiced as he continues to receive his salary and still holds his position as Principal. The payment in terms of section 38A of the SASA is not part of the contract between the Applicant and the employer as it is made by the School Governing Body (SGB) in terms of the agreement between the Applicant and the SGB. The cell phone and laptop that the Respondent took back were allocated to the Applicant for official use. Whilst on suspension the Applicant is not on official duty and is not entitled to these tools of the trade.

80. The Applicant argues that he will not receive a salary progression (QMS) whilst on suspension. The payment of salary progression is performance based and is subject to specified processes and the educator meeting a set performance standard.

81. The educator must obtain a specified mark in the evaluation to qualify for progression pay. In this regard the Applicant is on precautionary suspension, he is not performing duties and may not qualify for a QMS salary progression.

82. The Respondent witness, Ms. Betty Makhale, Senior Personnel Officer in the PMD unit testified that the performance cycle for school-based educators start from January to December and the Applicant was promoted in the middle of a cycle as a principal in 2021. He received a salary progression in 2021. In 2022 and 2023 he did not receive a salary progression due to the timing of his promotion. In 2024 salary progressions will be paid in July 2024. If the employee is on precautionary suspension, the PMD unit in the district will receive precautionary suspension documents and the outcome from Labour Relations Unit through the Applicant’s supervisor will send a submission to Head Office for a decision. Makhale was unable to tell the sitting if the Applicant will receive a pay progression or not in terms of paragraphs 4.2 (d) or 4.4 (b) of Collective Agreement 4 of 2003.

83. There are consequences when one is placed on precautionary suspension. I have already found that the Applicant is facing numerous serious disciplinary charges and will probably have to suffer the loss of additional benefits whilst the disciplinary process runs its course.

84. The “prejudice” of the loss of certain benefits and loss of reputation in the community is regrettably something that all persons placed on suspension have to endure. This prejudice is balanced with the continuous payment of the Applicant’s salary which ensures that the “prejudice” is contained to acceptable limits.

85. I accept the testimony of the Respondent’s witnesses over that of the Applicant in that their evidence is more probable and plausible than that of the Applicant.

86. I find that the Applicant and his trade union were largely responsible for the lengthy delays in preventing the commencement of the disciplinary enquiry. The classic case in point is the question of consultations with a trade union before union officials are charged with misconduct.

87. The Applicant was previously a labour relations officer for the Respondent before taking up his position as principal at Kreft Primary School.

88. I find that the Applicant made full use of his knowledge and experience of labour law and schools procedure to resort to ‘Stalingrad’ tactics to stymie the disciplinary inquiry against him. He points to prejudice largely of his own making and that includes abusing the processes of the ELRC when he lodged the first unsuccessful unfair labour practice dispute against the June 23 precautionary suspension.

89. The Respondent is admittedly not entirely blameless for the delays and could have managed the whole process of the issue of precautionary transfers much better.

90. I find that the Applicant had no right to return to school in February 2024 when he did and the reason that he gave for returning is rejected. He also did not follow the correct procedures before returning to school.

91. The Applicant acted arrogantly and mistreated the Acting Principal (Deputy Principal) and may well be additionally charged for the alleged misconduct of racism in his conversations with Snyman.

92. I find that there is no issue with the Respondent consolidating all the prima facie charges against the Applicant for hearing at one disciplinary enquiry,

93. During the course of the arbitration the Applicant tried to argue the merits of some of the charges that he will face at the disciplinary enquiry. I disallowed these attempts since they will be dealt with properly at the upcoming disciplinary enquiry.


94. I find that the Applicant has not proven on a balance of probabilities that his various suspensions constitute unfair labour practices after consideration of the facts in their totality.

AWARD

95. The Applicant’s dispute referral is dismissed.

96. No order as to costs is made.