Panelist: N. Bantwini
                                                                                                                       Case No: ELRC20-25/26EC                                                                                     Date of ruling: 12 November 2025

IN THE MATTER BETWEEN

SADTU obo Mawande Njeza Applicant/Employee
And

Department of Education- Eastern Cape Respondent/Employer

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration was part heard on 15 August 2025 and was finalised on 30 October 2025 in the offices of the respondent at Healdtown College/Fort Beaufort District Office in Fort Beaufort. It came before the ELRC in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, (the LRA) for benefits relating to Hostel Supervision allowance.
2. Parties were allowed to submit written closing arguments on 06 November 2025. Both arguments have been considered in the preparation of this award. The proceedings were digitally and manually recorded.
3. Mr. Lindile Tapa of SADTU appeared for the applicant who was also in attendance while Ms Tembeka Gungutha appeared for the respondent, the Department of Eastern Cape.

ISSUE TO BE DECIDED

4. I am required to determine whether the respondent has perpetrated an unfair labour practice against the applicant by not paying his hostel supervision allowance if in the affirmative, order appropriate relief.
5. The referring party submitted bundle of documents in support of his case at the commencement of the proceedings.
6. I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute.

BACKGROUND TO THE DISPUTE

7. The applicant has been employed by the respondent as an Educator post level 1. He was taken off from supervising learners and an allowance amounting to R4000.00 was withheld upon his suspension from 15 August 2024 to 24 February 2025.The applicant seeks payment of supervision allowance for the period of suspension as a remedy.

  SURVEY OF EVIDENCE

                   The Employee’s evidence

8. In his opening statement, Mr. Thapha submitted that the dispute relates to unfair labour practice based on benefits/non-payment of hostel supervision allowance. The suspension was lifted on 05 May 2025, and it continued beyond 60 days. This means that the respondent flouted section 3 of the Education Laws Amendment Bill of 2000 (page 78 of the bundle). The hostel supervision allowance is discretionary.
9. The applicant, Mr. Mawande Njeza testified as follows:
   He received a call from Mr Peter indicating that he would like to hand in a suspension letter. and upon meeting with him, he handed in the letter and indicated that he is expected to vacate the school premises. He resides in a cottage at the school hostel, and he took all his belongings and vacated the school on 05 May 2024.
10. He did not receive any communication from the respondent until 15 November 2024 when he was served with a notice of disciplinary hearing. The supervision allowance amounting to R4000.00 was never paid to him between November 2024 and May 2025. During the suspension period he was not allowed to speak to his colleagues. Submission of names of educators was done while he was on suspension according to the principal when the applicant enquired. The Circuit Manager as per the principal removed his name from the list. His suspension was beyond 60 days and was lifted on 05 May 2025 (page 4).

11. He also received a written communication from the HOD, and it did not have conditions whereas Ms Gunguta advised him that his name must be removed and he must teach learners. When he was suspended no replacement for Maths was appointed by the respondent. He was supposed to teach learners even during study period. The supervision policy does not have conditions.
12. He is the only Maths Teacher for grades 8 to 12 and he interacted and taught learners during normal teaching hours. He actively participates in drama, sport and cultural activities. He was never paid the supervision allowance during the period of suspension.
13. Under cross-examination, the employee testified as follows:
14. He is the employee of the ECDOE and is a teacher and a parent. The letter of suspension was served by Mr. Peter. His salary was paid but the supervision allowance was not paid. The terms of suspension were flouted by the ECDOE as the suspension period was beyond 60 days. When a question as to who he supervised during suspension, the employee’s response was that he was offered accommodation at the hostel so that he can supervise learners. He could not communicate with anyone during the time of suspension, but he was advised by the principal that the CES removed his name at salaries section on the basis that he (the employee) was on suspension. This was after the 15 of February 2025.

His understanding of due diligence is that when he came back from suspension, learners are being deprived of being taught after hours. He was welcomed by the stake holders including learners when the suspension was lifted. When it was put to the employee that the allegations against him are serious and sensitive, his response was that those allegations have got nothing to do with supervision of learners. The 2 affected learners have left the school, and he has no hick ups with the teachers and parents.

16. Under re-examination, the applicant stated that he feels that his suspension amounted to a disciplinary sanction. He seeks payment of R4000.00 for the period of 6 months suspension.
17. In closing, Mr Thapha argued as follows;
18. It was argued that the removal of the applicant’s supervision allowance during his precautionary suspension by the respondent constitutes an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as well as section 6 of Employment of Educators Act (EEA) as amended. The removal of the applicant’s supervision allowance is a punitive action which was taken before the disciplinary hearing is conducted. The suspension letter did not clearly state that the applicant would forfeit this benefit and the respondent’s failure to state that undermines the legitimacy of the decision. The applicant’s entitlement to the benefit is clear and the respondent’s breach to this entitlement is unfair.
19. The applicant’s representative finally submitted that the applicant seek compensation for the prolonged suspension, reinstatement of supervision allowance and backpay or any other relief deemed fit by the arbitrator.

The Respondent’s case

20. In her opening statement, Ms. Gungutha’s disputes that the respondent committed unfair labour practice against the applicant. The applicant was suspended for 6 months with full pay. The respondent compiled a list of employees to be considered for supervision of learners at the hostel. There is no entitlement for the applicant to perform hostel supervision duties. The respondent has to protect learners. The applicant was suspended for allegations of sexual harassment. The respondent does not hold grudge against the applicant as reflected in the letter that appears on page 1 of the bundle.
21. The first respondent’s witness, Mr. Dumile Mboniswa testified as follows:
22. He is the CMC Head and is responsible for managing 5 circuits due to lack of resources. Phandulwazi Agricultural High School and 4 other FET Schools as well as 24 primary schools are under his supervision. He also manages staff in schools, administration, curriculum, school performance, looking at learner outcomes, making sure there is compliance with legislation, monitoring submissions from schools including hostel supervision. Schools are to submit names of teachers to supervise hostels before the end of the year. When submissions are done, the respondent look at the names and approve or disapprove the list.
23. In 2024, a submission from Phandulwazi High School was made in January 2025 with names of the teachers and the employee’s name was in the list to assume duties on 01 February 2025. It is common cause that the employee was paid his full salary while he was suspended. In November 2024. Mr Peter informed him that he is going to serve the employee with a suspension letter for sexual assault allegations. Upon the receipt of the list of teachers to supervise the learners at Phandulwazi High school, he (the witness) advised the principal to remove the applicant’s name as he was still on suspension. Had he signed the document, he (the witness) could have been charged in line with Chapter 5, section 17 and 18 of SASA. The witness testified further that the employee cannot be paid an allowance while he was suspended as he did not render the supervision duties.

Under cross-examination, the witness testified as follows:

25. Phandulwazi Agricultural High School is under his supervision. He became aware of the applicant’s suspension when he was served with suspension letter by Mr. Peter on 15 November 2024. He also visited the school in the same month of November 2024 and further submitted a formal request for a Maths substitute teacher after the principal had confirmed that the employee was on precautionary suspension. He instructed the principal to remove the applicant’s name from the supervision list. Had he signed the list containing the employee’s name, he could have been charged for misconduct by the ECDOE.
26. The applicant cannot be paid an allowance for the period of suspension as he did not render services of supervising the learners. The witness testified further that suspension cannot be used as a sanction, but supervision allowance is not a salary, but an incentive paid for rendered services.
27. Under re-examination, the witness stated that an allowance is not a salary as it is paid for extra work done. He could not allow the employee’s name to be listed for hostel supervision as he was on suspension.
28. The second witness, Ms. Nomfumaneko Nazo testified as follows:
29. She works for the ECDOE as HR Admin and Planning Officer dealing with recruitment processes including acting allowance and other allowances. Supervision allowances are signed by the principal of the school and upon receipt, her office would prepare a memorandum to the District Director for approval. When a teacher is on suspension, he/she cannot be paid an allowance as no duties were performed. An allowance is different from a salary as it an incentive for extra duties performed by the employee. The principal was correct in removing the applicant’ s name from the hostel supervision list as he was not going to perform the duties.
30. Under cross-examination, the witness testified that upon receipt of the list from Phandulwazi High School, a submission to the District Director was made for approval. HR does not have authority to pay Educators whose names have been removed from the hostel supervision list.
31. Under re-examination, the witness stated that Mr. Mboniswa acted within his right to advise the principal to remove the applicant’s name as he was on precautionary suspension.

32. In closing, Ms. Gungutha argued that the respondent did not commit an unfair labour practice towards the applicant. The applicant confirmed under oath that his salary was paid in full during the time of suspension. When the applicant was served with the precautionary suspension letter, he was informed by Mr Peter that he must vacate the teacher’s quarters he was residing in with immediate effect.
33. During the period of suspension, the hostel supervision allowance was not paid to the employee because he was not rendering the services. The HR specialist witness testified that there is a difference between a salary and an allowance. An allowance is paid for extra services rendered the employee while the salary is a contractual obligation to be paid to the employee. The respondent’s representative finally submitted that the applicant’s case must be dismissed as it lacks substance.

                ANALYSIS OF EVIDENCE AND ARGUMENT

34. Unfair labour practice in terms of 186 (2) (a) is defined as “any unfair act or omission by an employer that arises between an employer and an employee, which includes unfair conduct related to promotion, demotion, training or benefits.
35. Issues of common cause in this matter are as follows:
36. The applicant is employed by the respondent as an Educator post level 1 at Phandulwazi Agricultural High School.
37. The applicant was issued with a letter of precautionary suspension on 15 November 2024 for the allegations of sexual assault of a learner at Phandulwazi Agricultural High School.
38. The applicant’s name was removed from the list of Educators that were assigned with the responsibility of hostel supervisory duties for 2025.
39. The applicant’s suspension was lifted on 05 May 2025, but he has not been cleared from the allegations of sexual assault as the disciplinary hearing in that the disciplinary hearing had not been finalised.
40. It is common cause that the hostel supervision list was submitted to the District Office in January 2025 while the applicant was still on suspension.
41. The applicant was not paid hostel supervisory allowance during the period of suspension as he did not render hostel supervision duties.
42. It is also undisputed evidence that even though the suspension was lifted, it was emphasized that the applicant must not be allocated tasks that would give him contact with learners outside the classroom until he has been cleared of the allegations against him.
43. I concur with Ms Nazo’s definition of an allowance as being different from a salary as it is an incentive for extra duties performed by the employee.
44. Based on the above evidence, I found that the applicant has failed to prove the claim of unfair labour practice based on benefits/payment of hostel supervision allowance against the respondent, the Department of Education-Eastern Cape.

    AWARD

45. The respondent, Eastern Cape Department of Education did not perpetrate an unfair labour practice relating to benefits by not paying a hostel supervision allowance to the applicant, Mr Mawande Njeza as he did not render hostel supervision duties.
46. The applicant is therefore not entitled to any relief sought and there is no order as to costs.
47. The application is dismissed.

Ncumisa Bantwini
ELRC PANELIST