12 November 2024 – ELRC428-24/25LP

IN THE MATTER BETWEEN: ELRC428-24/25LP

Rabothatha Raesetja APPLICANT

And

Education Department of Limpopo RESPONDENT

AWARD
8.1. The applicant’s application is hereby dismissed. …………………………………………………..
ELRC COMMISSSIONER: NICHOLUS SONO
DATE: 07 November 2024
Arbitrator 08 November 2024
ELRC 173-24/25KZN

DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged unfair labour practice, referred to in terms of section 186(2) of the Labour Relations Act 66 of 1995, as amended was held and finalized at The Department of Education-Limpopo, Polokwane on 28 October 2024.
1.2. Both parties attended the proceedings. The respondent was represented by Nthabisheng Rasebotsa, while the applicant was represented by Phillip Maponya, an official of PSA.
1.3. The hearing was held in English and was digitally recorded.

ISSUES TO BE DECIDED
2.1. Whether or not the decision of the respondent to suspend the applicant without pay was substantively fair. If not, I must determine the appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.

BACKGROUND TO THE ISSUES
3.1. The applicant is employed by the respondent as a circuit manager, earning R76 576.80 per month. She was suspended for a period of one (01) month without pay after a disciplinary hearing for allegedly unlawfully involving Ms Maloba MM in the delivery of application packages even when she was aware that Ms Maloba was also the applicant. She viewed her suspension without pay to have been substantively unfair and prays that the suspension be set aside and to be compensated for the period.
3.2. Prior to the commencement of the proceedings, respondent submitted a bundle of documents marked “R”, while the applicant did not submit any documents.
3.3. The applicant closed her case after leading her own evidence and the evidence of one witness, while the respondent closed its case after leading the evidence of three witnesses.
3.4. Both parties submitted written closing arguments.

SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was taken into account in order to arrive at a decision in the matter.

THE APPLICANT’S CASE
5.1. The applicant, Rabothata Raesetja, testified that on 11 January 2024, she personally delivered the shortlisting packages. On 25 January 2024, she requested Ms Maloba to deliver the interview packages because by then she was no longer the candidate. Ms Maloba withdrew from the appointment selection process on 24 January 2024. All the boxes were sealed when they were delivered to the shortlisting and interviews venue. If Ms Maloba was still an applicant/candidate on 25 January 2024, she could not have requested her to deliver the interviews packages. Between 11 January 2024 and 25 January 2024, she was not familiar with the names of the job applicants or interviews candidates.
5.3. Under cross-examination, the applicant testified that the shortlisting and interviews were conducted on 11 January 2024 and 25 January 2024 respectively. Ms Maloba was shortlisted to attend the interviews on 25 January 2024 but sent the withdrawal letter to her on 24 January 2024. On 24 January 2024, Ms Maloba sent the withdrawal letter to her because by then she could not have known the names or contact details of the interviews panel. When she handed over the interview packages to Ms Maloba on 25 January 2024, she also asked her to pass the message of her withdrawal from the interviews to the SGB/interviews panel. She never requested Ms Maloba to deliver the shortlisting packages on 11 January 2024. On 25 January 2024, the messenger was not available to deliver the interviews packages, and she was busy with other commitments.
5.4. The applicant’s witness was Johanna Legodi. She testified that she was part of the interviews panel. Ms Maloba delivered the interviews packages to them and immediately left the premises.
5.5. Under cross-examination, Johanna Legodi, testified that Ms Maloba delivered the interviews packages to them on 25 January 2024.

THE RESPONDENT’S CASE
6.1. The respondent’s first witness was Doreen Moremi. She testified that on the day of the shortlisting, she was the secretary of the shortlisting committee. Ms Maloba delivered the shortlisting boxes to them. Ms Maloba also informed her about the candidate who has withdrawn from the appointment selection process. Ms Maloba told her that the message that one of the candidates has withdrawn was sent to her phone by the applicant. On the day of the interviews, the respondent’s representative informed the interview committee that Ms Maloba had withdrawn from the process. The withdrawal letter of Ms Maloba was never brought to the attention of the committee.
6.2. Under cross-examination, Doreen Moremi, testified that during the shortlisting on 11 January 2024, Ms Maloba personally delivered the boxes inside the shortlisting venue. When the shortlisting boxes were delivered, she was not aware that Ms Maloba was also an applicant/candidate. Ms Maloba was shortlisted even though she delivered the shortlisting boxes. She is not aware of any rule/policy that clearly states who should deliver the shortlisting/interviews packages. When Ms Maloba delivered the shortlisting packages, the respondent’s representative was not present. When the respondent’s representative arrived, he rejected Ms Maloba’s cell phone message and indicated that he was not going to accept/consider anything outside of the boxes/packages.
6.3. The respondent’s second witness was Jonathan Mashaba. He testified that on the day of the shortlisting, he was acting as the respondent’s representative. On the said day, he arrived late because he was called in as a replacement. When he arrived at the venue, the boxes had already been delivered and he never saw Ms Maloba or the person who had delivered them. He was informed about the message of the candidate who has since withdrawn from the process, but he never entertained it. On 11 January 2024, Ms Maloba was also shortlisted for interviews.
6.4. Under cross-examination, Jonathan Mashaba, testified that he only took part during the shortlisting. After the shortlisting, he never received any complaints. As a department’s representative, he never signed the minutes compiled by the committee’s secretary. When he arrived on the day of the shortlisting, he never saw Ms Maloba or asked who had delivered the shortlisting packages.
6.5. The respondent’s third witness was Lawrence Chipa. He testified that he investigated the matter before the applicant was charged. During the investigation, he interviewed several people, including Ms Maloba. The shortlisting was first conducted during December 2023, but nullified. The second shortlisting was conducted on 11 January 2024. On both occasions, Ms Maloba was shortlisted. During the investigations, the shortlisting panel informed him that Ms Maloba delivered the shortlisting packages. It was also discovered that after the shortlisting, Ms Maloba delivered the boxes back to the circuit office. When he interviewed Ms Maloba during the investigation, she confessed collecting the shortlisting boxes from the circuit office delivering them to the venue on 11 January 2024. She also confessed to delivering the boxes back to the circuit office after the shortlisting. Once an employee has applied for a position, it is common knowledge that he/she cannot be part of the people running/assisting the selection process. By delivering the shortlisting packages, Ms Maloba assisted in the selection process. The Department’s representative is a better person to collect the boxes from the circuit.
6.6. Under cross-examination, Lawrence Chipa, testified that compliant was lodged by SADTU. When Ms Maloba delivered the boxes to the venue on 11 January 2024, they were not sealed. The applicant requested Ms Maloba to assist in the selection process before she withdrew. It is highly impossible that the applicant was not aware that Ms Maloba was the candidate because the first selection process was nullified by her and that the list of shortlisted candidates was also presented to her. It is not part of the collective agreement that a job applicant/candidate cannot be requested to deliver the shortlisting or interviews packages. After the investigations, he also recommended that Ms Maloba be charged. During the investigations, Ms Maloba never denied that she had delivered the shortlisting packages on 11 January 2024.

ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1. In this matter, the onus was on the applicant to prove on balance of probabilities that her suspension without pay was substantively unfair.
7.2. It is the applicant’s argument that on 11 January 2024, she personally delivered the shortlisting packages to the venue and only requested Ms Maloba to deliver the interviews packages to the venue on 25 January 2024.
7.3. It is common that on 11 January 2024, Ms Maloba was still a candidate/applicant to the contested position. The applicant and her witness disputed version that Ms Maloba delivered the interviews packages on 25 January 2024. That evidence was not supported by any other evidence. The applicant and her witness’s versions are totally inconsistent with the undisputed letter written and signed by Ms Maloba and the WhatsApp messages between Ms Maloba and SGB secretary. In the letter dated 07 January 2024, Ms Maloba stated that on 07 January 2024, she was requested by the circuit manager/applicant to collect application boxes from the circuit office and deliver them to Maphetsa Primary School. On 25 January 2024 at 09:33, Ms Maloba had informed the SGB of her non-attendance of the interview via WhatsApp message. If indeed the request made via a letter on 07 January 2024 was meant for the interviews processes, it was never submitted by the applicant, why she had requested Ms Maloba to deliver the interviews packages before the shortlisting packages were delivered. Also, it is highly impossible that on 25 January 2024, Ms Maloba would choose to communicate her non-attendance of the interview via WhatsApp message at 09:33 knowing fully that she was personally delivering the interviews packages to the panel and which materials were to be received before the commencement of the interviews. I also reject the applicant’s submission that when she requested Ms Maloba to deliver the alleged interviews packages, she was not familiar with the names of the candidates/ applicants. On 11 January 2024, the shortlisting was being done for the second time and surely the applicant could have seen the list of the candidates who were previously shortlisted, which Ms Maloba was part of it. Not calling Ms Maloba as a witness during the arbitration proceedings to support her case, surely is a clear sign that the applicant probably avoided to be implicated. I therefore conclude that it is highly improbable that the applicant had requested Ms Maloba to deliver the interviews packages on 25 January 2024.
7.4. On the other hand, much of the version of the respondent’s first and third witnesses was not disputed and appeared convincing. The two witnesses appeared not to have been coached and only testified on what transpired during the shortlisting and investigations. It was never suggested or put to them during cross-examination that they have other ulterior motive to falsely implicated the applicant to have her punished. The respondent’s first and second witnesses were indeed credible and reliable. I therefore accept the respondent’s version that Ms Maloba delivered the shortlisting packages on 11 January 2024.
7.5. By delivering the shortlisting packages on 11 January 2024, Ms Maloba assisted in running the selection process in which she was also an applicant/candidate. The applicant knew that requesting a job applicant/ candidate to assist in the selection processes was wrong. She submitted in her evidence in chief that if she had known that Ms Maloba was one of the job applicants/candidates, she could not have requested her to deliver the packages.
7.6. In the circumstances, I conclude that the applicant has failed to prove on balance of probabilities that the decision by the respondent to suspend her without pay was substantively unfair.