ARBITRATION AWARD
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (VIRTUALLY)

Case No: ELRC 409-24/25NW

In the matter between

SAOU obo MOHAMED SEEDAT Applicant

and

DEPARTMENT OF EDUCATION: NORTHWEST PROVINCE Respondent

ARBITRATOR: Monde Boyce

HEARD: 18 September 2024

CLOSING ARGUMENTS: 29 September 2024

DATE OF AWARD: 05 October 2024

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This Council set the matter down for arbitration on 18 September 2024 and scheduled it to proceed virtually. Both parties made an appearance with Dr Johan Kruger, a trade union official from the trade union SAOU, appearing for the applicant while Miss Boitumelo Phuswana and Mr Seagosing, both Labour Relations Officers in the department, appeared for the respondent.

[2] At the commencement of the process, Mr Phuswane moved an application challenging jurisdiction of the Council to arbitrate the dispute. I however dismissed the application after having heard oral submissions, and I shall deal in detail with the reasons for my ruling in my analysis to the extent I deemed it important to put the issue to rest. There was no need for an interpreter since parties were conversant in English. The proceedings were digitally recorded and typed notes were taken, and the recording has since been filed with the Council. Only the applicant submitted a bundle of documents. Parties requested to make written closing arguments, and I directed that the written submissions be filed with the Council by no later than 26 September 2024. I however received the final submissions on 29 September 2024.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the respondent committed unfair labour practice in terms of Section 186(2)(b) of the Labour Relations Act 66 of 1995 as amended (LRA) by imposing a sanction of a final written warning, and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The dispute was referred as that of unfair labour practice in terms of the LRA. The applicant is currently employed as a Principal and is one of the Principals against whom final written warnings were issued following allegations of misconduct related to what the Northwest Department of Education alleged to be failure on their part to pick up omission or misrepresentations in applications by educator assistants who were placed at various schools in the Northwest Province through the Presidential Youth Employment Initiative (PYEI. After being issued with the final written warning, the applicant sought to appeal the warning by filing an objection. Despite lodging the objection, the applicant was unhappy with the warning and approached his trade union who referred the dispute to the ELRC for conciliation. When conciliation failed, the applicant referred the dispute for arbitration. He seeks reversal of the final written warning as a relief.

SURVEY OF EVIDENCE AND ARGUMENT:

Applicants’ evidence

[5] The applicant, Mr Mahomed Seedat, testified that he is currently employed as a Principal at Shukran Primary School in Lichtenburg and has been a Principal for the past six (06) years. He is familiar with appointment processes and how they work, and this includes appointment of non-educators. The PYEI gave youth an opportunity to be appointed as Educator Assistants. Educator assistants were tasked to provide administrative support to educators and were also allowed to assist with marking. The applications did not go to the schools but were done online, and the assistants could apply on the Harambi site. Schools did not get involved in the receiving and processing of applications received.

[6] When the online application process closed, the next phase was that of shortlisting by the schools and from the shortlisting, appointments would be made, and Shukran appointed 10 Educator Assistants. The Educator Assistants also signed a declaration as contained on Annexure B of the bundles submitted where they had to make a number of declarations. The initiative was made for youth that were unemployed, and one applicant in particular, Miss Boipelo Mere declared that she was unemployed at the time she signed the declaration. On all the items Miss Mere indicated “No”. He, as the Principal, could only appoint on the basis of the information he received from the department. The criteria followed in appointing the Educator Assistants was whether they stayed closer to the respective school and whether they were involved in sport.

[7] On 02 August 2024, he received a call from the Circuit Manager who informed him to come to the office to collect a final written warning. He went and collected the warning which was handed to him by the Personal Assistant of the Circuit Manager. He called the Circuit Manager where he expressed his displeasure about the warning and that he intended objecting to the warning. He did not go much into detail about how he was unhappy. In his opinion, a final written warning was a sanction, and the warning issued came out of the blue without him being given an opportunity to answer to allegations where the respondent would have stated what it was unhappy about. He strongly believed that he did not commit any misconduct. When he was given the warning, he had all the evidence before lodging the objection. He would have given this evidence to the respondent if he was given an opportunity to be heard. In the objection letter, he had indicated outright that he did not appoint any youth that is in employment or receiving any grant. He furthermore stated that he did not have powers or information on the basis of which he could refute what Miss Mere stated in her declaration.

[8] He had indicated that the employees were loaded on the system developed by the department and if the system was allowed to block out information that was incorrect, what happened would have been prevented. He was unhappy with the procedure that was followed when the final written warning was issued.

Respondent’s Evidence

[8] The respondent did not lead evidence and closed its case without calling witnesses.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

Jurisdictional Challenge

[9] I first deal with the issue of jurisdiction raised by the respondent at the commencement of the process, and which jurisdictional challenge I outrightly dismissed. The basis for the jurisdictional challenge was grounded on the respondent asserting that the only route available to an Educator who had been issued with a final written warning where a formal disciplinary hearing was not convened was that of lodging an appeal by writing an objection in terms of Schedule 2 Item 5(g) of the Employment of Educators Act 76 of 1998 (EEA), and which objection shall be filed in the Educators file together with any additional information. The respondent thus argued that the Council lacked jurisdiction because no formal disciplinary hearing was convened and that the warning was issued following a meeting held.

[10] In my considered view, the jurisdictional challenge by the respondent should not have arisen at all. Careful reading and understanding of the law would immediately have caused the respondent to be aware that the EEA is legislation governing employment of Educators and that for all matters related to unfair labour practice or dismissal, the LRA is the enabling legislation. The LRA provides for dispute resolution in instances of alleged unfair labour practice. There was thus nothing untoward about the applicant referring his dispute in terms of Section 186(2)(b) of the LRA. The final written warning is a disciplinary action short of dismissal, and the only route open to the applicant where he was unhappy with internal appeal processes was that of referring an unfair labour practice dispute as he did. In raising the jurisdictional point, the respondent also appeared to be ignorant of the fact that the very EEA’s Schedule 2 Item 3(1) provides that:

“The Code of Good Practice contained in Schedule 8 of the Labour Relations Act, 1995 (Act No. 66 of 1995), insofar as it relates to discipline, constitutes part of
this Code and Procedure.”

[11] While the respondent asserted that the only route available to the applicant was that of lodging an objection which shall be filed in the applicant’s personal file as envisaged by Schedule 2 and Item 5(g) of the EEA, such a route remains an internal appeal process but makes no provisions for what an employee should do where he/she is unhappy still with a warning imposed. It is the LRA that provides a dispute resolution mechanism. The respondent also submitted that the final written warning issued to the applicant did not have the effect of a final written warning issued following a disciplinary enquiry. On a question I posed as to what the status and effect of the final written warning issued against the applicant was, the respondent could not give a cogent answer. I rejected the submission as alluded to above on the basis that the final written warning issued to the applicant is a final written warning that has the effect of possibly resulting in the applicant’s dismissal should he be found guilty of misconduct during the validity of the final written warning imposed and, to that extent, the applicant had the right to challenge the warning by way of referring a dispute.

Procedural fairness

[12] An employer is entitled to apply discipline and has the right to impose a sanction that it would deem appropriate in circumstances where an employee is alleged to have breached it rules. The only requirement is that a proper procedure must be followed. At all times where an employee gets disciplined and a sanction is imposed, it is trite that an employee must have been given an opportunity to respond or answer to the allegations prior to sanction being imposed. The applicant appeared to accept same when he agreed, on a question posed under cross examination, that the respondent was entitled to discipline him. What the applicant took issue with, however, is that he was not given an opportunity to answer to the allegations prior to the respondent issuing the final written warning. According to evidence led, the only time the applicant became aware of the allegations and the final written warning was when he was called by the Circuit Manager informing him that he needed to go and collect the final written warning at the circuit office. Contrary to the argument by the respondent, there was no instance where the applicant was first called into a meeting where the allegations were discussed and where he was asked to answer thereto before imposition of the final written warning.

[13] While I accept that an employer does not need to follow a formal process before imposition of a sanction, and while I accept that Schedule 2 of the EEA does provide that a warning may be issued without a formal hearing being convened, a trite requirement in law is that an employee must be given an opportunity to answer to the allegations. This did not happen in the present case. The applicant led evidence to the effect that he had evidence that he would have presented had he been called to a meeting before imposition of the sanction. Such evidence, had the respondent gave him an opportunity to be heard, would possibly have absolved the applicant or have the respondent consider a lesser sanction than the final written warning. It is thus my finding that a fair procedure was not followed before imposition of the final written warning.

Substantive fairness

[14] The final written warning issued against the applicant relates to an allegation that he appointed an Educator Assistant, Miss Mere, while not meeting the requirements as outlined in the implementation framework of PYEI. According to evidence led by the applicant, it is the department that received all the applications that prospective Educator Assistant candidates had made online via an online platform introduced by the department and that each school was sent a list from which it had to select candidates. To this end, the applicant argued that the panel that selected the Educator Assistants who were later appointed at his school would not have known that they did not meet the requirements in respect of their either receiving SRD grants or the Fundza Lushaka bursary. Also, in the declaration form Miss Mere filled, she did not declare that she was a recipient of any grant or studying through a bursary. With the list sent to the schools having been complied by the department that received the applications it would not be unreasonable for schools to accept that the department did the necessary screening before sending the list of candidates to the schools.

[15] The law on onus is now settled. A party upon whom the onus rests must discharge the onus. But be that as the case may a party that does not bear the onus is still required to discharge the evidentiary burden to the extent a version presented requires rebuttal. As such, while the applicant bore the onus to prove that the imposition of the final written warning was unfair and constituted unfair labour practice, the respondent was required to present as such evidence as would rebut the version presented by the applicant to the extent the applicant had shown that the respondent was equally to blame to the extent that the information it sent to the schools was its own creation and where candidates were required, and had declared the very information the respondent based the charge against the applicant on. It was thus not enough for the respondent to merely sit back and close its case without presenting its own version that would rebut the version presented by the applicant. Closing arguments are not evidence. The respondent had an opportunity to present its own case but did not take up this opportunity. As things stand, the only version that is before me is that presented by the applicant. That what the applicant told me could be untrue is not something I would automatically know without evidence being presented in rebuttal. It is my finding, on the basis of evidence led, that valid or justifiable reasons do not exist for imposition of the final written warning. The allegations were not tested, and there was no way the respondent would have appropriately arrived at the conclusion that the applicant committed misconduct. As at the time the final written warning was issued, the applicant was not aware of any misconduct relating to non-disclosure by one Educator Assistant employed at his school. The respondent’s imposition of the final written warning was thus unfair and constituted unfair labour practice in terms of Section 186(2)(b) of the LRA.

[16] Accordingly, I deem it reasonable to make the following award:

AWARD

[17] The final written warning that the respondent issued the applicant on 02 August 2024 is set aside.

Monde Boyce
Panelist: ELRC