12 December 2024 – ELRC448-24/25FS

IN THE EDUCATION LABOUR RELATIONS COUNCIL

 Case No ELRC448-24/25FS

In the arbitration proceedings between:

SADTU obo Mahlophe Roseline Applicant

And

FREE STATE DEPARTMENT OF EDUCATION Respondent

PANELIST:
Ntjatja Klaas Aphane
HEARD:
31 October 2024 & 18 November 2024
DELIVERED:

 29 November  2024 

 ARBITRATION AWARD

Applicant’s representative: N hlanhla T Radebe (SADTU Official) Mahlophelo Roseline Mahlophe.

Respondent’s representative: Vuyisile Gubuza (Labour Relations Manager) Department of Education: Free State
DETAILS OF THE HEARING AND REPRESENTATION:

This is the arbitration award in the arbitration proceedings concerning an alleged unfair labour practices in relations to unfair conduct of disciplinary action dispute between Mahlophego Roseline Mahlophe , the Applicant, and Free State Provincial Government: Department of Basic Education, the Respondent.
The dispute was referred to the ELRC in terms of section 186(2) of the Labour Relations Act 66 of 1995 (the LRA).
The arbitration was scheduled and held on the 31 October through Microsoft teams, and on the 18 November 2024 physically. All parties and the witnesses physically attended at district offices of the Department of Education at Totius Street, Sasolburg, and it was held under the auspices of the ELRC in terms of section 186(5) (a) of the LRA.
The Applicant appeared in person and she was represented by her SADTU union official, Nhlanhla T Radebe, whilst the Respondent was present and represented by its employee, Vuyisile Gubuza, Labour Relations Manager.
The award is issued in terms of section 138(7) of the LRA.
The Applicant was represented and therefore I adopted an adversarial approach to resolve the dispute.
The arbitration proceedings were digitally recorded and handwritten notes were taken.
The relief sought by the Applicant was setting aside of the one-month punitive suspension without salary.

THE ISSUES TO BE DECIDED:

I must determine whether the Respondent has committed an alleged unfair labour practices when the one-month punitive suspension without salary was pronounced on the Applicant. Whether one-month punitive suspension without salary was substantively and procedurally fair or not. If not fair, I must determine the appropriate relief.

THE BACKGROUND TO THE DISPUTE:

The Applicant is a deputy principal at the employ of the Respondent, based at Zamaleka Primary School, at Fezile Dabi District.
The Applicant was subjected to a disciplinary hearing during 2023, found guilty and a punitive suspension was meted out to the Applicant. (One-month punitive suspension without salary, consequent to an internal disciplinary process.).
The Applicant testified in support of her case (Mahlophego Roseline Mahlophe), whilst the Respondent’s representative called one witness (Pogisho Sydney Chakela).
The Respondent’s representative submitted a bundle of documents, bundle “R”, consisting of pages 1 to 3, whilst the Applicant’s SADTU representative submitted a bundle of documents, bundle, “A”, consisting of pages 1 to 23.
The sanction of one-month punitive suspension was too harsh and was in dispute.
The Applicant pleaded for the one-month punitive suspension salary to be paid back to her.

SURVEY OF THE EVIDENCE:

I wish to state from the onset, that not all evidence presented will be set out hereunder. Only a summary of the relevant evidence is contained herein. THE APPLICANT’S CASE
The Applicant was the only witness to testify in support of her case and testified that she was an employee of the Respondent, employed as a deputy principal at Zamaleka Primary School.
She was subjected to an internal disciplinary hearing during 2023, was found guilty and the sanction was a final written warning and one-month punitive suspension. She does not query the final written warning and one month suspension but such the suspension must be on full salary.
The other deputy school principal, Mphuthi, was sent by the Principal, to call her to come to a meeting, whilst the meeting was in progress, she stood up and left the meeting because the Principal was using harsh words. She left to avoid hearing bad news.
She failed to moderate the question paper on time resulting in the learners getting the results after school recess. She was failed by the departmental head, Xaba, who submitted late, resulting in delays on moderation of learners’ scripts. She posted on SMT WhatsApp group that she was not done with moderation and therefore learners would receive their results after school recess.
She was charged with misconduct as the result of Shasha’s investigation report and does not fully agree with the content of the investigation report. She was charged with two charges and its alternatives.
The sanction was unfair because her medical aid was now in arrears, e.g. she is indebted to African Bank, Capfin, Atlas, RCS, EDC, and others. She was unable to service her debts as the result of the one-month punitive suspension. She is a widower with two dependents and a grandchild. Her late husband left her with a lot of debts to service.

THE RESPONDENT’S CASE:

The Respondent’s only witness was Pogisho Sydney Chakela, who testified under oath that he is an employee of the Respondent. He is an Acting Director: Labour Relations, in charge of disciplinary processes.
Though the verdict is not challenged, there are various factors that were taken into account, amongst others the seriousness of the charges, mitigation and aggravation as well as relevant provisions of the Employment of Educators Act no 76 of 1998 (as amended) (EEA).
Key considerations were failure to observe lawful ,reasonable and work related instructions to do moderation timeously resulting in learners failing to get results only after school recess.
The sanction was blended with mercy after consideration of the Applicant’s personal circumstances. Normally serious charges like these resulted in termination of employment or three months punitive suspension.
Therefore, the sanction meted against the Applicant was more lenient and appropriate.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedure, and relevant case law.
Everyone has the right to a fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. This right is well entrenched by section 185 of the LRA, which provide the right not to be unfairly dismissed or subjected to unfair labour practices.
The Applicant was subjected to a disciplinary hearing, found guilty and issued with a punitive sanction of one month without salary and a final written warning.
The Applicant and her representative conceded that the main contention is the one month punitive suspension and not the other sanction, verdict and the disciplinary process. Even though at a later stage the Applicant submitted that the disciplinary process was based on Shasha’s investigation report and she does not agree with contents thereof.
The Applicant, as a deputy principal, was within her rights to institute corrective disciplinary actions against HOD Xaba, if indeed she submitted late, and such late submission resulted in late moderation. The learners were victims of getting results late. Why should the Respondent and learners’ be compromised by failure to discipline Xaba, and enforce total compliance and submission on time?
Granted, the Applicant was financially disadvantaged by the one month punitive suspension but equally the misconduct was bad for the Respondent and for the learners.
The EEA empowers the Respondent to impose a sanction of suspension without pay for a period not exceeding three months.
In County Fair v CCMA and others (1998) 6 BLLR 577 (LC), the Court held that suspension without pay is a permissible disciplinary penalty where appropriate, and for a reasonable period.
An arbitration process is a new (de novo) hearing, which means that the evidence concerning the reason of the Respondent’s decisions (which is challenged or in dispute) is heard afresh. That means I must determine the fairness of the Respondent’s decision on the evidence admitted and submissions made at the arbitration.
This misconducts are of a serious nature and warrants the Respondent taking corrective measures against the Applicant, more so that the Applicant was employed in a position of trust to build capacity in the educational sector. Failing learners cannot be excused.
The Applicant has failed to discharge the onus of proving that the sanction imposed on her was not substantively and procedurally fair.