IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN GRAHAMSTOWN

Case No ELRC612-26/27EC

In the matter between

PSA obo Khayalethu Magopeni Applicant

and

Department of Higher Education and Training Respondent

ARBITRATOR: AW Howden

HEARD: 22 October 2026

DATE OF AWARD: 06 November 2026

SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 186(2)(b) – unfair labour practice relating to suspension – whether the Respondent committed an unfair labour practice when they suspended the Applicant.

AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for arbitration in terms of section 186 (2) (b) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedure Annexure C (As amended on 25 July 2023). The arbitration was held on 22 October 2026 at the Eastcape Midlands TVET College – Grahamstown Campus.
2. The Applicant, Mr K Magopeni – Persal No 22495185, was present and was represented by Mr A Kilian from the PSA.
3. The Respondent, the Department of Higher Education and Training, was represented by Mr M Chiliwe from the Labour Relations Department.
4. On finalizing the hearing, the parties requested that written closing arguments be submitted. It was agreed that the written Closing Arguments must be submitted by Thursday 29 October 2026. Both parties submitted their written closing arguments timeously and have been taken into consideration when finalizing the award.
5. The proceedings were digitally recorded.

ISSUES IN DISPUTE

6. Whether the Respondent committed an unfair labour practice when it suspended the Applicant.

BACKGROUND TO THE DISPUTE

7. The Applicant is employed by the Respondent as a PL 1 Lecturer at the Grahamstown Campus of the Respondent.
8. The Applicant was placed on precautionary suspension on 12 May 2026 and was still on suspension.
9. The Applicant seeks the upliftment of the suspension and compensation.

SURVEY OF EVIDENCE AND ARGUMENT

10. The parties have agreed that the following is common cause:

• That the Applicant is employed by the Respondent as a PL 1 Lecturer at the Grahamstown Campus of the Respondent.
• That the Applicant was placed on Precautionary Suspension by the Respondent with full pay on 12 May 2026.
• That the Applicant is still on suspension with full pay.
• That the Respondent gave the Applicant a Notice to Attend a Disciplinary Hearing on 28 May 2026 for the dates 9 and 10 June 2026.
• That the disciplinary hearing was postponed/cancelled by the Respondent on 3 June 2026 via an e-mail from the Respondent’s Representative.
• That the matter has to date not been rescheduled for the disciplinary hearing to take place.
• That the Applicant earned R26 219.00 per month.

11. The issue in dispute is whether the Respondent committed an unfair labour practice when they suspended the Applicant, more specifically whether the suspension of the Applicant is or has become unfair due to the length of the suspension and has now become punitive in nature and in contradiction of Resolution 1 of 2003 (Clause 7.2 (c)).
12. Both parties handed in bundles of documents (Applicant Bundle A and Respondent Bundle B). None of the documents were in dispute and it was agreed that the documents’ contents were what they purported to be.
13. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

14. The crux of the Applicant’s case is that he was unfairly suspended, however is disputing the procedural fairness of the suspension as well as the length of the suspension, which was done in contradiction to Resolution 1 of 2003 (Clause 7.2 (c)).

The Respondent’s Submissions

15. The crux of the Respondent’s case is that the Applicant had been suspended fairly, the suspension was done procedurally correct and the Respondent was compliant with Resolution 1 of 2003.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

16. It is common cause that the Applicant was suspended by the Respondent on 12 May 2026 and that for these proceedings the Applicant was not disputing the substantive fairness of the suspension.
17. Resolution 1 of 2003,Clause 7.2 (c) states: “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 the length of the investigation. The chair of the hearing must then decide on any further postponement”.
18. In this instance the matter was set down for the disciplinary hearing to take place on the 9 and 10 June 2026. It is common cause however that the disciplinary hearing did not take place on the above dates due to an e-mail issued by the Respondent’s Representative on 3 June 2026 stating the matter “will have to be postponed”. Therefore a disciplinary hearing was never properly held with all parties actually present.
19. It is further noted in the Respondent’s bundle that on 9 July 2026 the Chairperson of the disciplinary hearing was asked for the first time via an e-mail for an extension of the suspension period. The Applicant was not requested to make submissions objecting to the extension.
20. It is further noted that on 13 July 2026 a second request, via e-mail, for the extension of the suspension period was made to the Chairperson of the disciplinary hearing. This time the Applicant was copied in and informed that if there were any objections they needed to be submitted, however no timeframe was given.
21. It is further noted that the actual approval for the extension of the suspension period was done via e-mail from the Chairperson on 17 August 2026, more than a month after the second request and almost two and a half months after the initial e-mail postponing the disciplinary hearing. With the approval being granted outside of the 60 day period, whether calendar or working days.
22. Looking at Clause 7.3 (c) in paragraph (17) above. The document states “the employer must hold a disciplinary hearing within a month or 60 days”. If interpreting this literally “must hold a disciplinary hearing”, means that an employer has to physically set the matter down for the disciplinary hearing and proceed with the hearing on the day, even if virtually. Where parties can then make submissions on the day with regards to the request for extension of the suspension period, The resolution does not state the employer must merely “set the matter down” for the disciplinary hearing. I do not believe the drafter of this document had the intention of this being such an informal/casual process as dealt with by the Respondent. Beside the fact that the Respondent extended the suspension period without approval.
23. The Respondent’s statement that the disciplinary hearing was held within the correct timeframe is unfounded. Dates may have been allocated for the disciplinary hearing, however the disciplinary hearing never sat due to it being postponed prior to the dates allocated for the hearing.
24. The Applicant was suspended on 12 May 2026. We are now (As at the date of set down) looking at some 163 days later. The resolution does not define a day and the Council’s definition of a day has been used to calculate the period. The Applicant has been suspended for basically five and a half month’s with no compelling reason for the extension of the period of suspension, or for not setting the hearing down to proceed. Besides as stated in the Respondent’s evidence-in-chief that the Respondent was and is still unable to trace the complainant or student, who is their main witness, and that this was attempted on numerous occasions.
25. The Respondent’s Representative in his Closing Arguments has relied on a court judgement that states the resolution refers to “working days”. This aspect was never raised during these proceedings for the Applicant to have an opportunity to address the statement, however if this is taken into account we are still looking at the timeframe of some 114 working days after suspension and some 53 days after the 60 day period had expired. Almost two months later.
26. The courts have given guidance, so even without looking at the 60 day period mentioned in the resolution, if one had to take into consideration “a reasonable period”, being 90 days (calendar days) as stipulated by the courts, the matter has not been finalized in a reasonable period, and that without a compelling reason for finalizing the matter.
27. In the e-mail from the Respondent’s Representative to the Chairperson on 9 July 2026 it is clearly stated that the reason for the postponement of the disciplinary hearing was for the non-availability of the key witness. Not for an investigation that was still ongoing.
28. As at the time of the arbitration hearing the Respondent had no plans to set the matter down for the disciplinary hearing, now or for the foreseeable future.
29. Based on the above, the submissions of the parties and on the balance of probability it is my finding that the Respondent has committed an unfair labour practice with regards to the procedural aspects of the Applicant’s suspension namely the extension of the suspension period as well as the length of the suspension. The suspension is no longer a precautionary suspension in the true sense of the word and is now more punitive in nature.
30. It is further my finding that the Respondent must uplift the suspension of the Applicant with immediate effect. The Applicant has requested compensation and in light of the way the Applicant was treated in this instance, I believe it fair in terms of Section 193 of the LRA to award compensation in the form of a solatium for the unfair labour practice implemented by the Respondent to the amount of R10 000.00
31. I therefore make the following award.

RULING

32. The Respondent, the Department of Higher Education and Training, committed an unfair labour practice when they suspended the Applicant, K Magopeni – Persal No 22495185, with regards to the procedural aspects of the suspension.
33. The Respondent, the Department of Higher Education and Training, is instructed to uplift the suspension of the Applicant, K Magopeni – Persal No 22495185, with immediate effect.
34. The Applicant, K Magopeni – Persal No 22495185, is instructed to report for duty by no later than 16 November 2026.
35. The Respondent, the Department of Higher Education and Training, is directed to pay the Applicant, K Magopeni – Persal No 22495185, the amount of R10 000.00 (Ten thousand Rand), being the solatium as indicated in paragraph (30) above, less PAYE by no later than 30 November 2026.

Panellist: AW Howden
ELRC