Arbitrator: Macjon Maarman
Case number: ELRC404-25/ 26 EC
Date of Award: 13 November 2025

Nehawu on behalf of Lumka M. Mahokoto Applicant
and
Eastern Cape Midlands TVET College Respondent

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration under ELRC404-25/ 26 EC concluded on 23 October 2025 at the offices of the respondent in Kariega. The applicant, Ms. Lumka Mahokoto, was present and represented by Mr. Mzimkhulu Hote, an official from Nehawu. The respondent, East Cape Midlands TVET College, was present and represented by Mr. Misumzi Chiliwe, its Senior Labour Relations Practitioner. The proceedings were manually and digitally recorded. Parties submitted bundles of documents which was accepted for what it purported to be. Parties submitted closing arguments on the agreed date.

ISSUE TO BE DECIDED

2. I am required to determine whether respondent committed an unfair labour practice against the applicant through her suspension from work. The applicant seeks compensation.

SURVEY OF EVIDENCE AND ARGUMENT

3. This award does not contain everything that was said that the arbitration or in the closing arguments of the parties. It only records the evidence and arguments material to the subject matter and the finalization of the dispute. This is in line with section 18.6.1 of the ELRC constitution as well as section 138 (7) of the LRA. The applicant’s case
4. Ms. Lumka Mahokoto (herein after “the applicant”) testified that she was suspended by the respondent on 12 September 2024 due to her sharing the scope (academic related) with her students. She said that scope went to the Deputy-Campus Manager and not the intended student as they both have the same first name and the scope was only to be shared with African students.
5. The applicant further set out that she “sought revenge” against the colored students and that she does not think that her suspension was warranted as the respondent did not need to do an investigation as all the information were in front of them.
6. The applicant continued to testify and said that the disciplinary hearing sanction came out on the 2nd of June 2025 and her suspension was only uplifted on the 24th of July 2025 and she returned to work on the 28th of July 2025. She said that she was the one that had to query from the respondent as to when she can return to work (after hearing outcome) and that the suspension was frustrating as she was not aware if she will ever return back to work.
7. The applicant took the arbitration to an e-mail that her trade union sent on 22 July 2025 querying when the applicant can return back to work and also stating that at that date the applicant had been on suspension for 10 and a half months. E-mails dated 21 February 2025 and 29 January 2025 was also shown to the arbitration where the applicant’s trade union queried if the applicant’s suspension can be uplifted.
8. The applicant continued to testify and said that she only received the upliftment of suspension letter on 24 July 2025 and in meeting of 25 July 2025 the respondent even proposed that the she be transferred to another campus.
9. Under cross examination the applicant said that she can remember a telephonic conversation with the Labour Relations offices where she was asked if she can start working in term 3.
10. The applicant lastly said that she never agreed to start to work in term 3.
11. The trade union, in their closing arguments, said that the applicant remained suspended for 10 months and two weeks; that the suspension beyond 60 days was irregular, unfair and used in a retributive manner; that whilst it is acknowledged that the disciplinary hearing was convened within 60 days, the employer has allowed Mrs. Mahokoto to remain on precautionary suspension for an extraordinary 10 and a half months, without any justification, and without the chairperson authorizing continuation of the suspension. The trade union further said that their case is not the suspension was unlawful, but [their] case is based on the premised that the employer had an opportunity to request that the chairperson of the hearing extends the suspension, because a suspension cannot go on forever; even after the case was finalized it took Mrs. Mahokoto to request in writing to the management for an explanation for her continued suspension to be uplifted to the principal citing the expiry of the 60 days. They said that the Employment of Educators Act’s key provisions include that the disciplinary hearing should be concluded within a specific timeframe, and the employer may direct that further suspension be without pay after the educator has been given a chance to make representations.

The employer’s case

12. Mr. Misumzi Chiliwe (herein after “Mr. Chiliwe”) testified that he is the Senior Labour Relations Practitioner of the respondent, that there was no unfair labour practice against the applicant and that the applicant’s suspension was with full remuneration. He said that the applicant’s disciplinary hearing was scheduled for 10 and 11 November 2024. The hearing was part-heard and he said that he will make an application for a witness to testify virtually. He said that parties knew that the hearing will again sit in January 2025 as the December break was upcoming.
13. Mr. Chiliwe set out that on 13 January 2025 the disciplinary hearing chairperson ruled that against the virtual testimony. The hearing was again to sit on 31 March 2025 until 04 April 2025 but on 19 March 2025 the chairperson sent an e-mail indicating that the hearing for the aforementioned dates are postponed due to bad weather conditions as he resides in Kwa-Zulu Natal. He said that the matter was thereafter due to sit from 06-09 May 2025 but could only start on the 7th of May 2025 as the disciplinary hearing chairperson was involved in a car accident.
14. Mr. Chiliwe said that they received the disciplinary hearing sanction by 02 June 2025 and that there was a need to suspend the applicant as she sought to racially polarize the institution and the respondent took the issue in a serious light. He said that on 23 June 2025 he wrote to all the parties indicating that there will be a meeting between the applicant, her trade and Ms. William and her trade union representative. The applicant and Ms. William opened up criminal cases against each other of which those criminal cases were settled between them. There was however a term in the settlement agreement that pronged the respondent to call the meeting. That term, that the two must not have contact with each other, had an impact on how the operations of the respondent will run. The meeting did not sit in June 2025.
15. Mr. Chiliwe said that a month later he wrote another e-mail again to the applicant and Ms. William saying that the meeting will take place on 25 July 2025 and that the respondent rejected the proposal from the trade union representative of Ms. William that the applicant be transferred to another campus. He said that the only thing that the respondent must do is to start the disciplinary proceedings within 60 days from the suspension date of which they did that.
16. Under cross examination Mr. Chiliwe said that the court settlement was signed on 04 April 2025 but the respondent only received it on 2 June 2025 and they still had to then look at it and discuss it. He said that he also called the applicant to tell her that there was a substitute teacher in her place who had to complete his contract term and the respondent wanted the applicant to seamlessly start the second semester. He said that he was not aware of the January 2025 e-mails from the trade union to his line manager and he suspended the applicant so he should have been copied in those e-mails.
17. Mr. Chiliwe said that it would have sent wrong signals to staff had the applicant not been suspended.
18. In their closing arguments the respondent said that the disciplinary hearing of the applicant was held within the prescribed time frames as stipulated in PSCBC Resolution 1 of 2003 as the applicant was placed on precautionary suspension on the 12th of September 2024 and the hearing proceedings commenced on the 10th to the 11th of November 2024. They said that after the applicant was placed on precautionary suspension the college had to hire a substitute lecturer to cover up the period that the applicant was not here to teach students…her hearing concluded close to the semester closing and he respondent representative made a call to the applicant to explain the situation and the applicant understood and accepted her starting in the second semester.

ANALYIS OF ARGUMENT:

19. Section 186 (2) (b) of the LRA states that “Unfair Labour Practice means any unfact act or omission that arises between an employer and employee involving- the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.
20. In this the applicant took issue with the fact that she was on suspension. It was common cause that the applicant was on paid suspension which started on 12 September 2024 and her suspension was uplifted on 24 July 2025 and she started working on 28 July 2025. The applicant said that there was no need to suspension and it was furthermore in breach of the standard “60-day rule” to conclude disciplinary proceedings. The applicant “referred” to the Employment of Educators Act but did not mention the specific provisions that clearly outline a period to conclude disciplinary proceedings.
21. I deem it important to distinguish the timeframes. The applicant was suspended on 12 September 2024, the disciplinary hearing sat on 10 and 11 November 2025, on 31 January 2025 the disciplinary hearing chairperson postponed the matter “indefinitely” [due to sit in February 2025] due to technical problems on his side, the hearing was scheduled to take place from 31 March 2025 until 04 April 2025 but the disciplinary hearing chairperson again postponed/ rescheduled it due to bad KZN weather patterns and the disciplinary hearing then sat on 6-9 May 2025. The disciplinary hearing sanction was served on parties on 02 June 2025.
22. It was further common cause that a meeting between the applicant and Ms. Williams was scheduled for the 27th of June 2025 but never sat to deal with the terms of the Criminal case settlement agreement. That meeting never took place and only took place on 25 July 2025. The applicant only started to work on 28 July 2025 even though on 15 July 2025 the respondent sent her a letter of upliftment of her suspension “with immediate effect”.
23. Clause 7.2 (c) of PSCBC Resolution 1 of 2003 holds that “if an employee is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within a month or 60 days, depending on the complexity of the matter and the length of the investigation. The chair of the hearing must then decide any or further postponement”.
24. In this case the sanction from the disciplinary hearing was a final written warning. The applicant was furthermore on paid suspension for the whole period that she was not at work. The applicant’s suspension was thus not punitive in nature but as a precautionary measure. The charges were serious as it bordered on racism. The aim of the message from the applicant was to disadvantage students of a particular race. Suspension or the applicant not being at work was to my mind thus justified.
25. It is crucial to note that the resolution does not say that disciplinary proceedings must be concluded within 60 days. The abovementioned clause either way gives powers to decide on postponements to the chairperson of the hearing.
26. The further question to ask is was the delay in the conclusion of the disciplinary proceedings justified. The sanction was issued to parties on 02 June 2025. The chairperson on the hearing was transparent as to the reason for the two postponements in the matter. I am cognizant that there was further a December/ work shut down period also involved. The delay/ postponements was not caused by the respondent but by the chairperson of the hearing. The reasons for the postponements was not contested by the applicant and I view them as valid.
27. A second period is then applicable being the dates from the sanction was issued (02 June 2025) and the applicants actual return to work (28 July 2025). It was not disputed that the respondent became aware of the criminal court settlement after the sanction was issued. The terms of that settlement agreement had a direct bearing on its operations as it dealt with the working set-up of the applicant and Ms. Williams. It was further not disputed that the respondent hired a substitute/ temporary lecturer in place of the applicant. There is no purpose to have a substitute lecturer who is finalizing an academic term and the applicant at work. There thus exists a good reason for the assumption of duty of the applicant on the 28th of July 2025. The applicant did not suffer any prejudice.
28. It is for all the above mentioned, reasons that I find that the respondent did not commit an Unfair Labour Practice against the applicant through her suspension.

AWARD

29. The respondent, East Cape Midland TVET College, did Not commit an unfair labour practice relating to disciplinary action short of dismissal against the applicant, Ms. Lumka M. Mahokoto.

Panelist: Macjon Maarman
ELRC404-25/ 26 EC