ARBITRATION AWARD

Case Number: ELRC 410-24/25 KZN
Commissioner: T P Cele
Date of Award: 28 March 2025

In the ARBITRATION between

SAOU obo R Webber

(Union / Applicant)

And

Department of Education KwaZulu Natal

(Respondent)

Details of hearing and representation

1. The matter was set down for a virtual arbitration hearing on 11 March 2025. The Applicant appeared in person and was represented by Ms. Ankia Bester, a Legal Advisor from SAOU.
2. Itumeleng Makhooe, Assistant Director, Employee Relations, appeared on behalf of the Respondent. The proceedings were conducted in English and digitally recorded.
3. Most of the issues were relatively common cause and in their opening statements the parties agreed to file Heads of Arguments on or before 18 March 2025 for the arbitration award to be issued on the papers.

Issue(s) to be decided

4. I must decide whether or not the Respondent perpetrated an unfair labour practice against the Applicant in terms of section 186(2)(b) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA).

Background to the dispute

5. The facts set out below were agreed or not disputed:

a. That the Applicant is employed by the Respondent as a principal, post level 3, at Westville Senior Primary School, at a salary notch of R599,247.00 per annum;

b. That on 7 August 2024 he was placed on precautionary suspension in terms of schedule 2 of the Employment of Educators Act 76 of 1995 (EEA), pending the outcome of an investigation into the matter and / or a disciplinary enquiry;

c. That after he lodged an unfair labour practice dispute at the ELRC on the 8 August 2024 be subsequently received an email form Ms Dumisa of the Respondent on 11 November 2024 advising him of an unforeseen delay in the investigation and that he was not permitted to go back to the school;

d. That on 22 January 2025 Ms Dumisa sent him another email informing him that the Respondent received a clean investigation report and that he would not be charged, instead she would make a request for the suspension to be uplifted;

e. That on 11 February 2025 Ms Dumisa informed him via WhatsApp that the submission to uplift the suspension went through the Directors’ office;

f. That the matter was set down for arbitration on 11 March 2025 due to the fact that no further feedback was given by the Respondent;

g. That since he was suspended, he has still not received a charge sheet or a letter stating that his suspension is uplifted, for almost 8 months since 7 August 2024 when he was placed on precautionary suspension.

Survey of the parties’ submissions and arguments
Applicant’s submissions

6. Ms. Bester submitted that schedule 2 of the EEA which contains the disciplinary code and procedures for educators states under section 1 that the purpose and scope of the code is inter alia to (e) provide educators and the employer with a quick and easy reference for the application of disciplinary measures and to (f) prevent arbitrary or discriminatory actions by the employer towards educators.
7. The principles underlying the Code and Procedures and any decision to discipline an educator under section 2 are inter alia that (g) disciplinary proceedings must be concluded in the shortest possible time frame.
8. Section 6(1) of Schedule 2 of the EEA provides that in the case of serious misconduct in terms of section 17, the employer may suspend the educator on full pay for a maximum period of three months.
9. Sections 6(2) states that in the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in sub section (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,
10. In terms of Section 6(3)(a) if any educators is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer.
11. Section 6(3)(b) provides that the presiding officer may decide on any further postponement and that such a postponement must not exceed 90 days from the date of suspension.
12. In terms of section 6(3)(c) if the proceedings are not concluded withing 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.
13. The Applicant received a notice of precautionary suspension on 7 August 2024 which according to the notice is in terms of schedule 2 of the EEA. In terms of section 6(3)(a) of the Code the employer should have done everything possible to conclude a disciplinary hearing within one month of the suspension which they failed to do.
14. Due to the fact that the Applicant is already suspended for almost 8 months without the commencement of a disciplinary hearing is clearly unfair. In accordance with section 6(3)(b) in the event of any further postponement, such a postponement must not exceed 90 days from the date of suspension, which also did not happen. Up until the date of the arbitration the Applicant will be suspended for almost 8 months without the commencement of a disciplinary hearing which is in direct contradiction of the Disciplinary code and Procedure as referred to above.
15. Bester argued that the Applicant has a right to disciplinary action that is procedurally fair which includes suspension. Due to the Respondent’s unprocedural actions the Applicant could not participate in the yearly Quality Management System (QMS) where the quality of his work is evaluated to receive his salary progression on 1 April 2025.
16. He also could not do the extra duties expected from him by the School Governing Body (SGB) and to receive his section 38A remuneration in terms of the South African Schools Act (SASA), resulting in him putting his house in the market and requesting for a bond payment holiday.
17. He is being humiliated by the Respondent in that he must remain at home without giving him the opportunity to state his case. He does not even want to leave his home which has a negative impact on his family. If the Respondent acted within the provisions of the code, he could have had the opportunity to state his case or to return to his workplace. He is also suffering emotionally which has a negative impact on his health.
18. She cited judgements in Minister of Labour v General Public Service Sectoral Bargaining Council and Others; SAPO Ltd v Jansen van Vuuren; MEHAWU obo NA Mamkeli v Department of Justice and Constitutional Development; Lekabe v Minister of Department of Justice & Constitutional Development; Minister of Labour v GPSSBC and others; and Muller and Others v Chairman of the Minister’s Council House of Representative and Others.
19. Bester also argued that there is no real reason why the Applicant must remain on a continued suspension and that the prolonged suspension has a negative impact on his general integrity. It is clear that the Respondent perpetrated an unfair labour practice against the Applicant and that he suffers as a result thereof.
20. She argued that the suspension should be uplifted so that the Applicant can return to his workplace and resume his responsibilities as principal of Westville Senior Primary School and also to be paid damages.

Respondent’s submissions

21. Mr. Makhooe submitted that the Respondent has to date not given him the mandate to settle the dispute nor any instructions to defend the continued precautionary suspension.
22. Since no charges have been preferred against the Applicant from the date of his suspension the Respondent leaves the matter in the hands of the Arbitrator in terms of the upliftment of the precautionary suspension.
23. However, the Applicant is on precautionary suspension with full pay and therefore there is no prejudice suffered. He submitted that he will facilitate the submission for the payment of the Applicant’s salary progression in the event that he suffered loss as a result of non-participation in the yearly Quality Management System due to the precautionary suspension.
24. He further submitted that the Council lacks jurisdiction to a claim for alleged damages suffered and that the Applicant is merely trying his luck hence he has neither specified nor quantified the alleged damages.

Analysis of the parties’ submissions and arguments

25. Section 186(2)(b) of the LRA provides that unfair labour practice means any unfair act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
26. In unfair labour practice disputes the onus is on the Applicant to establish the existence of unfair conduct on a balance of probabilities.
27. In the present case it is common cause that the Applicant was placed on precautionary suspension on 7 August 2024. It is also common cause that he is to date still on suspension and that no disciplinary enquiry has been conducted and further that he is still not permitted to return to the school.
28. It is clear from the facts placed before me that the prolonged precautionary suspension of the Applicant by the Respondent constitutes an unfair conduct in the context of our unfair labour practice jurisprudence. I reject the Respondent’s contention that the Applicant is suffering no prejudice simply because he is on suspension with full pay. The question is whether the conduct is fair or not and I find that it is unjust and far from being fair.
29. The suspension of the Applicant has been unduly prolonged, without any reasonable explanation being given to the Applicant and the Respondent is clearly acting outside the provisions of section 6 of schedule 2 of the EEA in terms of the time frame for instituting disciplinary processes against an employee who is on precautionary suspension.
30. In the Suzanne Daniels v Eskom SOC Ltd, the Commissioner correctly concluded that the proverbial axe hanging over the Applicant’s head is more punitive than an actual disciplinary hearing. He/she held that the suspension was humiliating and that it had a negative impact on the Applicant’s reputation and impaired her dignity.
31. In Minister of Labour v GPSSBC & Others the court held that after an employee has been suspended a disciplinary hearing must be held within a month or 60 days. It held that the suspension can therefore not exceed more than 60 Days.
32. In the circumstances it is therefore my finding on a balance of probabilities that the prolonged precautionary suspension of the Applicant by the Respondent constitutes an unfair labour practice. The Applicant sought for the suspension to be lifted and I find no reason why he should not be entitled to this relief.
33. He also asked to be compensated for damages he suffered as a result of the prolonged suspension. The dispute lodged by the Applicant falls within the ambit of section 186(2)(b) of the LRA which is limited in terms of remedies for unfair labour practices.
34. I have no jurisdiction to make an award incorporating a determination of damages.
35. I accordingly make the following award:

Award

36. The prolonged precautionary suspension of the Applicant by the Respondent is declared to be unfair and constituting an unfair labour practice.
37. The precautionary suspension of the Applicant, Robert Webber, from 7 August 2024 is hereby lifted with immediate effect and it shall henceforth have no legal effect and consequence.
38. The Applicant, Mr. Robert Webber, must report for duty at Westville Senior Primary School on 8 April 2025 on the same terms and conditions which governed the employment relationship prior to the precautionary suspension on the 7 August 2024.
39. I make no order as to costs.

P Cele: CCMA Commissioner