In the ARBITRATION between:

Minentle Ntlokwana
(Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Mr Sharp
C/o Sharp, Crisp & Associates
Applicant’s address: Unit 3, 10 Princes Road
Vincent
East London Telephone: 043 4220284
Telefax: 086 501 2234
Email michael@sharplaw.co.za

Respondent’s representative: Ms Gunguta
Respondent’s address: Private Bag X0032
Bisho
5606
Telephone: 0716065605
Telefax: 040 6044313
Email thembeka.guguta@edu.ecprov.gov.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the Education Learning Institute in East London on 3 October 2019 and 5 November 2019. The proceedings were electronically recorded. The Applicant, Minentle Ntlokwana was represented by Mr Sharp, an attorney. The Respondent, Department of Education: Eastern Cape was represented by Ms Gunguta, a Chief Education Specialist: Labour Relations and Human Resource Development. .

ISSUE TO BE DECIDED

2. I am required to determine whether or not, the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(b) of the LRA in suspending the Applicant as a precautionary measure without affording him an opportunity to make representation why he should not be suspended.

BACKGROUND

3. In terms of narrowing of the issues at the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:

3.1 The Applicant referred an unfair labour practice dispute to the Bargaining Council on 9 May 2019 and the dispute was conciliated on 30 May 2019. The Applicant was suspended on 2 April 2019 and his precautionary suspension was with pay pending finalisation of the Applicant’s a disciplinary hearing.

3.2 When the Applicant was suspended, he was not afforded an opportunity to make representation as to why he should not be suspended. The suspension was uplifted on 29 August 2019.

3.3 The first hearing date was on 10 June 2019 and the matter was thereafter postponed. The discipline hearing was finalised on 29 August 2019 although at that stage, no sanction was communicated to the Applicant.

3.4 The Applicant pleaded guilty to charge number 2, and that it is alleged that the Applicant is guilty of misconduct as contemplated in terms of section 18 (1)(f) of the Employment of Educators Act, 76 of 1998 as amended for “unjustifiably prejudiced the administration, discipline or efficiency of the Department of Education, and office of the State or a school or adult learning Centre” in that he failed to control the leave of examination officials, give clear instructions on the sorting of scripts, failed to give clear responsibilities to each official, resolve the irregularities with regard to the registration when learners arrived without identification documents and submission letters, taken leave without informing his supervisor and failing to allocate invigilators to centres which created confusion.

3.5 The Applicant currently earns R576 873 per annum and is employed as the Senior Education Specialist, office based assessment examination at Amatola West district office salary grade 10.

3.6 The Applicant seeks compensation.

SURVEY OF EVIDENCE AND ARGUMENT

4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

5. The Applicant testified under oath to the following effect

5.1 He was called in by his District Director and a suspension notice indicating that he has been placed under a precautionary suspension in terms of schedule 2 of Discipline Code and Procedures for Educators – Employment of Educators Act, 76 of 1998 as amended following the allegations of poor management of examination process. The suspension notice indicated that it is not deemed in the interest of the Department that he continue serving in his current position as SES: Learner Assessment and examination until investigation is completed or the proceedings in respect of the disciplinary enquiry had been concluded. The notification further emphasized that the allegations levelled against the Applicant are of a serious nature and it is believed that the Applicant’s presence at the workplace might jeopardise the investigation process into the alleged misconduct. The suspension notice indicated that the following measures apply to his precautionary suspension: The precautionary suspension does not constitute a judgement. During the suspension the Applicant would receive full pay and would remain subject to all the conditions of his employment and the disciplinary hearing will be held within one month from date of the precautionary suspension.

5.2 He did not know what he did wrong when he was handed a precautionary suspension notice.

5.3 The investigation they gave rise to his suspension was concluded by 26 March 2019 by the Provincial Education Department. He was only served with a notice to attend a disciplinary enquiry on 27 May 2019 by Ms Septoe, 3 days before the date of the conciliation.

5.4 During the period 3 to 5 June 2019 he forwarded correspondence to Ms Septoe, the Respondent’s representative wherein he sought access to certain documentation and requested that certain identified witnesses be summoned to appear at the disciplinary hearing to testify on his behalf. The request for information was not responded to by the Respondent.

5.5 On 10 June 2019, the disciplinary hearing was scheduled to commence, whilst on his way to the Head Office, Ms Ntyobile phoned him and informed him that his disciplinary hearing would be postponed. When they arrived, the disciplinary hearing was postponed and no indication was given as to when the matter would be rescheduled.

5.6 On 2 July 2019 he received a telephone call from Ms Gungutu’s office saying that the meeting scheduled for 3 July 2009 would not continue and that he would be informed of the new hearing date. On 18 July 2019, he submitted his request for arbitration and on 5 August 2019 his union informed him that he had been served with a second set of charges. These charges he refused to accept. The Respondent phoned him after 12 August 2019 informing him that they would be emailing him the charges and that the disciplinary hearing was scheduled to continue on 29 August 2019.

5.7 He feels that he was suspended in that the District Director said that she would forget him after she said that they were not working in Fort Beaufort whilst he said that they were short staffed. The District Director also told them that he should go to the head office and sort out the examination scripts.

6. Ms Nomgcobo Futshane the district director testified under oath to the following effect.

6.1 She testified that the Applicant is a senior specialist appointed at the examination centre and is responsible for the administration and the management of examinations.

6.2 On 10 April 2019, after arriving at the Amathole District Office the Applicant requested to be transferred to examinations.
6.3 As from March 2018, Mr Godwana, the Deputy Chief Education Specialist got ill and the Applicant then took over his responsibilities. During July/August 2018, some of the learners had not written exams in June. As a consequence thereto, some of the parents and an official came to her and lodged a complaint. As a consequence thereto, she requested that the Head Office conduct an investigation why learners were not scripted and why examination papers were lost.

6.4 Having received the precautionary suspension notice from Head Office she served the notice on the Applicant. She has nothing against the Applicant, it’s not about the individual‘s, it’s about the learners. She denies as suggested by the Applicant that she to the Applicant that she would get him as to prejudice him.

6.5 Under cross examination, she explained that the decision to suspend the Applicant was taken by the Superintendent General Mr Kojana and this was based on the preliminary investigation report.

ANALYSIS OF EVIDENCE AND ARGUMENT

7. In dealing with disputes relating to unfair labour practice the onus is on the party claiming an unfair Labour practice to prove that the unfair labour practice was perpetrated.

8. The Applicants challenge or foundation in claiming an unfair labour practice is founded on non-compliance with the provisions of the Employment of Educators Act, more specifically Section 20 (2) that provided that before suspending an educator from duty, the employer shall in a notice in writing addressed to that educator informed the educator of the employer’s intention to suspend the educator from duty; furnish educator with the reason for the intended suspension; and call upon the educator to show cause within the period specified in the notice, which period shall not be less than 14 days from date of notice, why the educator should not be suspended. Subsection (3) further provided that after considering any representations received in accordance with subsection (2) (c), the employer may proceed with the suspension of the educator under subsection (‘1); or refrain from taking any further steps under said subsection (1), an employer shall inform the educator concerned in writing of the decision under this subsection.

9. Unfortunately, Section 11 of Education Laws Amendment Act No. 53 of 2000 removed and deleted Section 20 from the principal act on which the Applicant is claiming a non-compliance.

10. Item 6 of Schedule 2 of the Disciplinary Code and Procedures for Educators regulates suspensions and provides that in the case of serious misconduct in terms of section 17, the employer may suspend an educator on full pay for maximum period of three months. In the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in sub item (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 in the workplace. Sub item (3) (a) further provides that 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. Sub item (3) (b) also provides that the presiding officer may decide on a further postponement. Such postponement must not exceed 90 days from date of suspension. Sub item (3) (c) provides that 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 direction for the speedy conclusion of the proceedings. At the time of the enquiry contemplated. Sub item (3)(d) provides that at the time of the enquiry contemplated in paragraph (c) the employer may, after giving the educator an opportunity to make representation, direct that the further suspension will be without pay.

11. The enquiry as contemplated in item 6 (3)(d) of schedule 2 is not applicable to the Applicants suspension in that at no stage was he suspension without pay.

12. Therefore, statutory there are no requirements that an educator must be afforded a hearing or an opportunity to be heard before he or she is precautionary suspended with pay. Had Section 20 not been repealed or deleted from the statute, the Respondent would have a case to answer to.

13. In the matter of Long v SA Breweries (Pty) Ltd & Other (2019) 40 ILJ 965 (CC) Theron J at [23] – [25] held that the case concerning unfair labour practice in terms of section 23 of the Constitution and specifically whether there is a requirement for a pre-suspension hearing in the case of a precautionary suspension. This Court’s jurisdiction it held is engaged. In respect of the merits, the Labour Court’s finding that the employee is not required to give an employee an opportunity to make representation prior to a precautionary suspension, cannot be faulted. As the Labour Court correctly stated, the suspension imposed on the applicant was a precautionary measure, not a disciplinary one. This is supported by Mogale , Mashego and Gradwell . Consequently, the requirement relating to a fair disciplinary action under the LRA cannot find application. Where the suspension is precautionary and not punitive, there is no requirement to afford an employee an opportunity to make representation. In determining whether the precautionary suspension was permissible, the Labour Court reasoned that the fairness of the suspension is determined by assessing first whether there is a fair reason for suspension and secondly, whether it prejudiced the employee. The finding that the suspension was for fair reason, namely for an investigation to take place, cannot be faulted.

14. The Applicant does not dispute that the charges for which he was suspended relate to serious misconduct and by the time the matter reconvened on 5 November 2019, his disciplinary hearing had been finalised in that the Applicant received a two month suspension without pay as well as a final written warning.
AWARD

15. I find that the Respondent, Department of Education: Eastern Cape did not commit an unfair labour practice as contemplated in terms of Section 186(2)(b) of the LRA as it relates to the precautionary suspension of the Applicant, Minentle Ntlokwana .

Name: Jonathan Gruss
ELRC Arbitrator