Commissioner: VEESLA SONI
Case No.: ELRC 290-24/25KZN
Date of Award: 7 OCTOBER 2024
In the ARBITRATION between:
SADTU OBO THEMBA MAKHANYA APPLICANT
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT
Union/Applicant’s representative: Anusha Pillay
SADTU
Telephone:
Telefax:
Respondent’s representative: Mr Musa Mabaso
228 Pietermaritzburg Street
Pietermaritzburg
Telephone: Telefax:
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 186(2)(b) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on 30 August 2024 and was part heard. It was adjourned to 3 October 2024. on a virtual platform and was finalized.
2. The Applicant, Mr Themba Makhanya was present and represented Ms Anusha Pillay, from SADTU and the Respondent was represented by Mr Musa Mababso.
ISSUE TO BE DECIDED
3. The issue in dispute was referred under the ambit of an unfair labour practice. The Applicant contended that the Respondent/employer committed an unfair labour practice in that his suspension was unfair.
BACKGROUND AND SURVEY OF EVIDENCE
4. The Applicant commenced employment on 16 April 1991, as an Educator. At the time of the dispute he was in the position of a Principal, Zakhele Primary School. He was at post level 4 and earned R 666 453-00 per annum. The Applicant was placed on precautionary suspension with full back pay on 30 June 2024. On 28 August 2024 the Applicant was furnished with a notice of a disciplinary hearing, in terms of section 17 (1) (b) of the Employment of Educators Act, which related to sexual assault on a learner.
5. The Applicant was presented with charges on 28 August 2024 and received the notice to attend the disciplinary hearing on the same day. It was common cause that the matter was to proceed in terms of an Inquiry by Arbitrator, which has been referred to the ELRC, and both parties awaited a date from the council.
6. It was common cause that disciplinary action was instituted with 90 days of the Applicant’s suspension. It was accepted that the Applicant was suspended on 30 June 2024 and lodged a dispute on 1 July 2024, challenging the suspension as precautionary measure. The Respondent submitted that it was premature to have lodged the dispute, as it was 24 hours after suspension. The Applicant was served with the notice of the disciplinary hearing and charges within 90 days.
7. There was no dispute of fact and both parties elected to proceed with the matter by way of oral arguments.
APPLICANT’S CASE LED BY WAY OF ARGUMENT
8. It was argued by Ms Pillay that the matter was not pre-maturely referred to the council. It was submitted that the Applicant should have been given the opportunity to make representations as to why he should not have been suspended. She argued that the case of Long vs S A Breweries was misinterpreted. The Employment of Educators Act and policies applicable to the sector, made reference to employees being able to provide submissions before being suspended. The constitutional court case of Long should not be interpreted in a broad manner and the Respondent ought to have followed the guidelines for the Public Service. It was also submitted that the Applicant was a Principal of the school and should have been afforded his constitutional rights. She asked that a finding be made that the Applicant’s suspension be declared unfair and he be compensated for such conduct.
RESPONDENT’S CASE BY WAY OF SUBMISSIONS
9. Mr Mabaso argued that the Applicant was employed in terms of the Employment of Educators Act. In terms of Chapter 7, section 6, it allowed the employer to place an educator on precautionary suspension, if the allegations were serious. In this case there were allegations of sexual assault that were serious. This was in terms of section 17 of the Employment of Educators Act, which states that if an educator was found guilty of that offence, he must be dismissed.
10. The allegations levelled against the Applicant were very serious. Section 6 did not require that an educator be given an opportunity to make representations, before the employer takes the decision to suspend. Mr Mabaso referred to the same case of Long and argued that there was no need for the Applicant to make representations. There was no resolution that contradicted the case of Long. As such there was no unfair labour practice.
ANALYSIS OF EVIDENCE
11. The matter was referred as an unfair labour practice: In terms of section 186 (2) (b) of the Labour Relations Act: “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”
12. The current matter related to preventative/precautionary suspension of the Applicant who claimed that he was treated unfairly in that he was not afforded an opportunity to make representations prior to being suspended. It was common cause that the matter was referred to the council in terms of an Inquiry By Arbitrator (hereinafter referred to as IBA), and the parties awaited a date for the hearing.
13. In the Department of Education’s Collective Agreement Schedule 2, section 17 it states that an Employer may suspend an educator on full pay for a maximum of three (3) months. It states further if an educator is transferred or suspended, the Employer must do everything possible to conclude a Disciplinary Enquiry within one (1) month of the suspension or transfer. The law is clear that suspensions should not be implemented as a measure of first resort. This was laid out in Lebu v Maquassi Hills Municipality (J 2035/11) [2011] ZALCJHB 170 (21 October 2011), “Suspension is a measure that has serious consequences for an employee, and is not a measure that should be resorted to lightly.” Cases indicated that suspensions must, as a minimum requirement satisfy the following criteria:
(a) The employer must have a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct.
(b) There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct, or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy.
14. Suspensions have a detrimental impact on the affected employee and may prejudice his or her reputation, advancement, job security and fulfilment. Suspensions must therefore be based on substantive reasons and fair procedures must be followed before employees are suspended. In light of this I will deal with the issues before me, namely that the Applicant was not afforded a hearing prior to his suspension. Any suspension cannot be considered independently from the seriousness of the offence and the peculiar circumstances of the matter. Each case must be decided on its own facts and while some suspensions are uplifted purely on the time delay, others must be deliberated with all the dynamics. It is clear that the employer should not suspend an employee without complying with the procedural and substantive requirements. When making a decision to suspend an employee, as a precautionary measure, the employer must ensure that the employee could possibly have committed serious misconduct. In this case there were allegations of sexual misconduct, which was very serious.
15. The Applicant was in the position of a Principal at Zakhele Primary School. It was common cause the Applicant was placed on precautionary suspension with full back pay on 30 June 2024. Turning to the issue for determination, in this matter, I refer to Long v South African Breweries (Pty) Ltd and Others CCT61/18) [2019] ZACC 7, wherein the Constitutional Court confirmed that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension because the suspension imposed is “a precautionary measure, not a disciplinary one”. For this reason, the Constitutional Court confirmed that the requirements relating to fair disciplinary action as set out in the Labour Relations Act, cannot find application to the circumstances.
16. I now turn to the Employment of Educators Act (hereinafter referred to as “The Act”). In terms of Chapter 7, section 6, it permits the employer to place an educator on precautionary suspension, if the allegations were serious. In this case the allegations were unfoundedly serious. There was no provision in the Act that required the Respondent to afford an employee an opportunity to make representations prior to suspension. In terms of the Constitutional Court judgement, the conduct of the Respondent, in not having a hearing prior to suspension, was not unfair.
17. Ms Pillay argued that the Applicant had constitutional rights that were violated. I accept that the Applicant had rights but his rights had to be weighed against those of the learners and the school. In any event, all rights had a limitation, and it had to be done in terms of the interest of justice. The South African Constitution has a general limitation clause (section 36) that says that rights may be limited by a law of general application that is ‘reasonable and justifiable in an open and democratic society based on dignity, freedom, and equality’. Fairness by its nature is flexible. Ultimately fairness depends on the circumstances of each case and the balancing of a range of factors including the nature of the decision, the rights, interests and expectations affected by it. As such I find that there was no unfair labour practice and no legal requirement for the Applicant to make representations prior to his suspension.
18. Finding: I find the suspension fair and the Applicant has failed to discharge the onus in establishing there was an unfair labour practice.
Award
I make the following award:
19. The suspension of the Applicant, Mr Themba Makhanya, is declared to be fair.
ELRC Commissioner : VEESLA SONI Date : 7 OCTOBER 2024