Commissioner: Emma Levy

In the ARBITRATION between:

SADTU OBO NKOSI PHUMELELA APPLICANT
and

DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT

Union/Applicant’s representative: Dr Siphesihle Zuma

(SADTU official, Boy Mkhize Branch)

Respondent’s representative: Ms Jabu Dumisa
(Acting Director Employment Relations)
Respondent: KZN Department of Basic Education: Head Office

DETAILS OF HEARING AND REPRESENTATION

1. An arbitration was scheduled in terms of Section 186(2) of the Labour Relations Act (LRA) under the auspices of the Education Labour Relations Council (ELRC) via Teams at 9am on 4 September 2026,
2. The Applicant, Mr Phumelela Nkosi, attended the hearing and was represented by Dr Siphesihle Zuma, an official of the South African Democratic Teachers Union (SADTU).
3. The Respondent, the Department of Basic Education KwaZulu Natal, attended the proceedings and was represented by Ms Jabu Dumisa, acting director of employment relations.
4. The matter was finalised with the minimum of formalities on 4 September 2026 and both parties delivered oral closing arguments.
5. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

6. I am required to determine whether the Respondent committed an unfair labour practice in relation to an agreed precautionary transfer /suspension (on full pay) for three months pending an investigation into allegations of serious misconduct.

BACKGROUND AND SURVEY OF EVIDENCE

7. Complaints of post-fixing against the applicant, the Chief Education Specialist in Pinetown district (Durban North), precipitated a lengthy external investigation.
8. On 1 January 2026, Mr Nkosi accepted a three-month precautionary transfer to Head Office, District Operations Management, on full pay (in terms of item 6 of the Employment of Educators Act 76 of 1998) in order for the allegations to be properly investigated,
9. Six months later on 10 July 2026, when no investigation outcome had been communicated to him by the Department and the Applicant remained on precautionary transfer, the union referred the matter to the council as an alleged unfair labour practice in relation to suspension.
10. Conciliation took place on 5 August 2026 before another commissioner and in the absence of resolution, proceeded to arbitration,

APPLICANT’S CASE

11. The trade union submitted that the applicant sought a reasonable timeframe for the conclusion of the investigation.
12. The applicant had been placed on precautionary suspension since 1 January 2026 and temporarily transferred on full pay to head office with an agreement with the Department of Education that the investigation would reach conclusion on 31 March 2026. To date the applicant had not returned to work and the investigation had not been finalised.
13. The Applicant and trade union therefore requested that the Respondent finalise the investigation and communicate the outcome report to the Applicant within three weeks from the date of the arbitration.

RESPONDENT’S CASE

14. The Respondent conceded that the investigation had taken far too long and concurred with the trade union’s proposal for a three-week timeframe to conclude the investigation and communicate the outcome to the Applicant.
15. The Respondent submitted that it did not have a mandate to settle the matter and requested an arbitration award of a three-week time period from the date of the arbitration 4 September 2026 until 28 September 2026 to finalise the matter. The Respondent submitted that the investigating team would be given two weeks to conclude and communicate its recommendations to the Head of Department who would consider its findings and communicate the outcome to the Applicant with immediate effect.
16. Pending the outcome of the investigation, the applicant would either receive a written notice to attend a disciplinary hearing or resume his duties as Chief Education Specialist in Durban North West. Pinetown, with immediate effect.
17. The representative submitted that the main complainants of the alleged serious misconduct against the Applicant had not attended the investigation either in March 2026 or 25 August 2026 and stated that it would be unfair to keep the Applicant on precautionary suspension.

ANALYSIS OF EVIDENCE

18. The matter was referred as an alleged unfair labour practice in terms of section 186(2) (b) of the Labour Relations Act in relation to an unfair suspension (precautionary transfer) of a senior employee pending an investigation of alleged misconduct (post-fixing).
19. It was acknowledged and accepted by the Respondent during the arbitration that the Applicant’s temporary precautionary suspension of three months was still in place in September 2026 and that the investigation had not yet been concluded.
20. It was not disputed by the Respondent that the Applicant had co-operated fully with the investigation to date and had waited patiently for the department to reach conclusion.
21. The Respondent did not dispute the Applicant’s written submission on the referral documents that the prolonged temporary transfer arrangement had adversely affected his professional reputation, career progression, authority and standing within the department and did not contest the union’s argument that a temporary arrangement could not lawfully become a permanent arrangement through inaction.

FINDINGS

22. In the light of the parties’ agreement at arbitration that the investigation must be concluded within three weeks and that an outcome report must be communicated to the applicant (by the head of department) on or before 28 September 2026, I can find no reason to disturb this consensus.
23. In reaching this agreement of a reasonable timeframe, it is noted that the department’s acting director of employment relations concurred with the trade union official’s submission that it would be unfair to keep the applicant on precautionary suspension any longer.
24. It was further stated by the Respondent, that the main complainants of the post-fixing allegations had not attended the investigation either in March 2026 or subsequently in August 2026 and that the Applicant had co-operated fully with the independent investigation and had accepted the temporary precautionary transfer in good faith for a period of three months which had come to an end on 1 April 2026.

AWARD

25. The Respondent deviated from its agreement with the Applicant for a three-month precautionary transfer expiring on 1 April 2026 pending the outcome of an investigation of his conduct in contravention of section 186 (2) of the LRA and clauses 6 and 7 of the Employment of Educators Act 76 of 1998.
26. The Respondent is ordered to conclude its investigation within two weeks from the date of the arbitration (4 September 2026). The Head of Department is thereafter ordered to communicate the outcome of the investigation to the Applicant on or before 28 September 2026 as stated by the Respondent’s representative at arbitration.
27. In the event that the Head of Department finds that the Applicant should be charged with serious misconduct, the Respondent is ordered to issue the Applicant with a written notice to attend a disciplinary inquiry with immediate effect in accordance with clauses 6 and 7 of the Employment of Educators Act and ensure that the Applicant has a fair opportunity to state his case at a disciplinary hearing as prescribed in section 186 of the LRA and Schedule 8 (Code of Good Practice).
28. In the event that the Respondent’s Head of Department finds that no disciplinary action against the applicant is required, the Respondent is ordered to lift the Applicant’s precautionary transfer (suspension) with immediate effect and instruct the Applicant to resume his normal duties as Chief Education Specialist, Circuit Management: Durban North West, Pinetown District, on 29 September 2026 without any further delay.

ELRC Commissioner : Emma Levy

Date of Award: 8 September 2026