IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN

ARBITRATION AWARD

Case Number: ELRC34-25/26 KZN
Commissioner: Protas Cele
Date of Award: 9 November 2025

In the ARBITRATION between

Sishange, Happy Siphiwe

(Union / Applicant)

And

Department of Education KwaZulu Natal

(Respondent)

Details of hearing and representation

1. The matter was set down for arbitration at the Durban Teachers Centre on 5 September 2025 and 10 October 2025. The Applicant appeared in person and was represented by Mr Nhlanhla Makhanya, an official from NEHAWU.
2. Ms Monica Mtetwa, Assistant Director, Employee Relations, appeared on behalf of the Respondent. Mr Makhanya presented a bundle of documents which was marked bundle A (A1-39) with Annexures A – 1. Ms Mtetwa produced 2 bundles which were marked bundle B (B1-17) and bundle (C1-4) respectively.
3. The proceedings were conducted in English and digitally recorded. Background to the dispute
4. The following facts were either agreed to or not disputed:

a. That the Applicant is a School Principal at Dloko High School in Umlazi district and earns a basic salary of R63,634,00 per month;

b. That on 16 January 2023 the gate of the school was locked by unknown parents and subsequently opened by the SGB members and other parents;

c. That on 27 February 2023, parents and learners of Dloko High School marched to the circuit office and demanded the replacement of certain educators who had been removed from the school;

d. That on 26 April 2023 there was another protest action outside the school by learners who were complaining that educators were not teaching;

e. That the Applicant was suspended on 2 June 2023 pending an investigation and a disciplinary enquiry into alleged acts of misconduct;

f. That the suspension was lifted on 5 May 2025 after he was found not guilty of the allegations on 20 November 2024 and after the Respondent’s appeal was dismissed.

5. His case was that his suspension for more than 23 months instead of 3 months was unduly long and constituted an unfair labour practice. He asked to be compensated for the unfair conduct by the Respondent.
6. The Respondent contended that the Applicant suffered no prejudice because he was on suspension with full pay and asked for the matter to be dismissed.

Issue(s) to be decided

7. I am required to decide whether or not the Respondent perpetrated an unfair labour practice related to suspension against the Applicant.

Survey of evidence and argument.
Applicant’s evidence

8. The Applicant testified on his own behalf and stated that he commenced his employment with the Respondent in 1992 as a post level 1 educator at Swayimane High School in Pietermartizburg.
9. In 1999 he was promoted to the post of Departmental head for the Science department. He was appointed as a Deputy Principal in 2013 and in 2014 he was promoted to the post of Principalship at Dloko High School in Umlazi district.
10. He stated that he received the letter of suspension on 2 June 2023 which was handed to him by Ms Mtetwa at Truro House. Prior to this an attempt was made to serve the letter at the school but he was not there because he had gone to see a doctor.
11. Officials from the department had arrived at the school in 3 cars and when they did not find him they told the departmental head, Bonginkosi Elias Tamella, that they came to serve him (Applicant) with a letter of suspension and ordered him (Elias) to call him.
12. The officials included the Circuit Manager, the Chief Education Specialist, Mr Khomo and 3 or 4 occupants who were in a VW Polo. There was no privacy and it was unfair because the letter was directed to him, and his colleagues were not supposed to know about it before he was officially informed.
13. When the suspension was effected he had not been served with a letter of intention to suspend and given an opportunity to respond in accordance with the provisions of the Pam document. In the letter it was stated that the suspension would be for the duration of 3 consecutive calendar months or until the disciplinary hearing was concluded.
14. The investigation was concluded on 23 October 2023 and the disciplinary hearing was still underway when the time frame stated in the letter expired but the suspension was not lifted nor was he served with a letter of the extension of his suspension.
15. On 4 July 2024 he then wrote to the MEC, HOD and HR Director requesting for the upliftment of his suspension so that he could be gainfully employed while he continued to attend the disciplinary hearing but there was no response. (Annexure H)
16. On 17 January 2025 he also wrote to the District Manager after he was found not guilty and expressed his frustration about his suspension which had still not been uplifted and the fact that no letter was served on him extending the suspension. There was also no response to this communication. (Annexure I)
17. He testified that the HOD eventually gave him a letter on 5 May 2025 in Pietermaritzburg, lifting the suspension. He wished him well and told him to resume duties at the school on 6 May 2025. Before he went to the school he met with the circuit manager to inform him about the developments.
18. The Circuit Manager then took him to the school and introduced him to the SMT and the staff. On 8 May 2025 about 8/10 women came to the school and started beating the learners and chased them away from the school and told members of the community that he changed the school times.
19. He explained that before the suspension was lifted and after he received the outcome of the disciplinary hearing dated 20 November 2024, he reported for duty at the school. However, on 27 November 2024 he received a letter from the District Director, Ms Mahlambi, informing him that his suspension was still in effect until it was lifted by the HOD. He was told to stay at home and await due process to be followed.
20. He was not told about the appeal and he was surprised when he later heard that it was lodged by Indran Pillay, Deputy Director HR, instead of the HOD, the employer.
21. He stated that his suspension caused him anxiety, stress, a feeling of isolation and reputational damage. He was harassed and humiliated. His post was advertised during his suspension and it was only withdrawn from the advert after he wrote a letter to the Chief Director HR. He asked to be compensated for the unfair conduct by the Respondent relating to his protracted suspension.
22. During Cross-examination he disputed that he testified that he expected to be served with a letter of intention to suspend before the suspension was effected. He conceded that the disciplinary process is finalised once the appeal process has been concluded.
23. He did not dispute that the appeal was made within the prescribed time limit of 5 working days of receiving notice of the final outcome of the disciplinary hearing. He denied that he misconducted himself by going back to the school without a letter instructing him to resume his duties. He stated that he was not informed that the department would appeal against the finding of the chairperson of the disciplinary hearing.
24. When he was asked about the relationship between his anxiety and the suspension he stated that the symptoms started after his suspension. He was thereafter diagnosed with stress, anxiety and depression for which he was put on medication after 4/5 consultations.

Respondent’s evidence

25. Indran Pillay is the Deputy Director, Employee Relations in Umlazi District. He testified that he was appointed as part of a team to investigate the disruption of teaching and learning at Dloko High School in the district.
26. Other members of the team were Mr Thwala, Mr A Shangase and Mr Ntanjana. After they submitted their report he received an appointment letter to prosecute. There were a lot of delays at the disciplinary hearing and after it was concluded he received a letter from the Applicant stating that he was found not guilty and that he wanted to return to the school.
27. He then enquired from Head Office because he had not received the outcome of the disciplinary hearing and thereafter he proceeded to lodge an appeal with the MEC within 5 days, which was subsequently dismissed. He stated that the upliftment of a suspension is a process which starts from Head Office to Employee Relations and then to the District Office where a submission is prepared to the HOD to uplift the suspension.
28. The investigation took longer than 3 months because there were many witnesses from outside and interlocutory applications. The entire process is regarded as finalised once the HOD has written a letter uplifting the suspension. He prepared the letter in which the Applicant was informed to await due process to be followed and it was signed by the District Director, Ms BN Mahlambi (Annexure E).
29. During cross-examination he stated that the period of the suspension was reasonable. Sometimes forensic investigations take about 2 years before the disciplinary hearing is convened. He conceded that the investigation is supposed to be completed within 3 months and stated that in reality this is not followed, hence some employees refer disputes and get re-instated.
30. He stated that usually there is no letter of extension if the investigation exceeds the period of 3 months. In the Applicant’s case the investigation was concluded on 23 October 2023 (A27) and there is no provision for an employee to be given a copy when the outcome of the hearing is appealed.
31. When it was put to him that the Applicant was frustrated he stated that none of these frustrations were raised at the disciplinary hearing. It was only after the appeal process. He confirmed that the appeal was dismissed and thereafter a submission was prepared for the HOD to lift the suspension.
32. He admitted that there were “systematic delays” and stated that there are only 2 officials including himself in the Employee Relations Department and that the freezing of posts is not assisting the situation. He stated however that the Applicant had remedies if he believed that the suspension was unduly long or unfair.

Closing Arguments
Respondent’s Argument

33. Ms Mtetwa argued that in the letter of suspension the Applicant was informed that the duration of the suspension would be for a period of 3 consecutive calendar months or until the disciplinary hearing is concluded or whichever comes first.
34. The process is concluded once the HOD has written a letter directing for the suspension to be lifted after the outcome of the disciplinary hearing or appeal. When the Respondent decided to appeal the decision it meant that the process was not concluded. The Applicant suffered no prejudice because he was on suspension with full pay.
35. His behaviour to self-impose and resume duties without a letter from the Respondent was a transgression in itself. He referred the dispute as an after thought after the suspension was lifted, which does not make any sense and used the recourse to enrich himself. She prayed for the matter to be dismissed.

Applicant’s Argument

36. Mr Makhanya argued that in terms of schedule 2, section 2(b) of the Employment of Educators Act, the suspension, investigation and the disciplinary hearing process should have been included in the 3 calendar month’s period.
37. The systematic delay caused immense harm to the Applicant which culminated in psychological stress, frustrations and difficulties which adversely affected his family and his personal life. The Respondent’s conduct was in violation of the Code of Good Practice.
38. He cited court judgements in Stokwe v the Member of the executive Council and Major General Mapiyana v SAPS and argued that the Applicant’s suspension was more punitive than precautionary. Therefore the Applicant should be awarded compensation equivalent to 3 months’ salary.

Analysis of evidence and argument

39. In terms of section 186(2)(b) of the Labour Relations Act, unfair labour practice means the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee. The employee bears the onus of proving the unfair conduct complained of.
40. It is common cause that the Applicant was placed on a precautionary suspension pending an investigation / enquiry into alleged acts of misconduct. It is also common cause that the suspension was lifted after approximately 23 months following the dismissal of an appeal lodged by the Respondent against the outcome of the disciplinary hearing.
41. It is further common cause that according to the notice of suspension, the suspension was for a duration of 3 consecutive months or until the disciplinary hearing was concluded or which ever came first. In SAPO Ltd v Jansen Van Vuuren NO and Others (2008) 8 BLLR 798 (LC) the LC held that a suspension amounts to an unfair labour practice if the period of suspension exceeds the period stipulated in a disciplinary code, collective agreement, regulations, or contract of employment.
42. In order to determine whether the Respondent committed an unfair labour practice against the Applicant, 3 questions need to be answered which are, whether the Respondent had a justifiable reason to believe, prima facie at least, that the Applicant had engaged in serious misconduct; Whether the reason for the delay in finalising the process has been sufficiently explained by the Respondent; and whether the Applicant suffered any prejudice as a result of the protracted suspension.
43. The evidence established that the suspension was triggered by the incidents which disrupted the normal functioning of the school at Dloko High School, which were characterised by demonstrations at the District office and at the school itself. In the circumstances the reason for the suspension was therefore justifiable and fair.
44. However, the delay in finalising the process was unduly long and the Respondent failed to provide compelling reasons for such a long period of delay. During this period of suspension the Applicant’s life, career and plans were on hold inspite of being on suspension with pay and benefits.
45. Furthermore on the Respondent’s own version the entire process can be said to be concluded once the HOD has issued a letter lifting the suspension. The evidence however further established that the Applicant’s post was advertised before the process was concluded which was unfair.
46. The post was only withdrawn from the advert after the Applicant had written a letter to the Respondent. The advert was irregular and unsettling to the Applicant and it gave the impression that his fate was pre-determined, which was unfair.
47. The Applicant testified that the suspension also caused him reputational damage, however in Dladla v Council of Mbombela Local Municipality and Another (2008) 29 ILJ 1902 (LC), the LC held that damage to the employee’s image and reputation was not a ground for finding the suspension unlawful.
48. In the circumstance it is therefore my finding on a balance of probabilities that the protracted disciplinary process constituted an unfair labour practice against the Applicant. As a result of the unfair conduct by the Respondent, I consider it to be just and equitable to award the Applicant compensation equivalent to 2 months’ compensation as a form of solatium, calculated at his current rate of remuneration as follows: R63,634 x 2 = R127,268. I considered that he was on suspension with full pay and that his suspension has since been lifted.
49. I therefore make the following award; Award
50. The suspension of the Applicant by the Respondent for an unduly long period is found to be constituting an unfair labour practice.
51. The Applicant, Happy Siphiwe Sishange, is awarded the sum of R127,268 (One Hundred and Twenty-Seven Thousands Two Hundred and Sixty Eight Rands) as compensation for the unfair conduct by the Respondent.
52. The Respondent, Department of Education KwaZulu Natal, is ordered to pay the Applicant the amount set out in paragraph 51 above, directly into his bank account on or before 30 November 2025.
53. I make no order as to costs.

P Cele: ELRC Commissioner