IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MOKOPANE

In the matter between

MASHABELA MOLATELO ANTHONIA Applicant

And

DEPARTMENT OF EDUCATION – LIMPOPO Respondent

ARBITRATION AWARD

Details of hearing and representation

1. This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 as amended (the Act). The first hearing took place at the Department of Education, Polokwane, Limpopo Province on 13 June 2024 and final one took place at the Department of Education, Mogalakwena District Offices, Mokopane, Limpopo Province on 26 July 2024 at 09:00AM.

2. The Applicant, Mashabela Molatelo Anthonia was represented by Madire Hezekiel from the South African Democratic Teachers Union (SADTU), while the Respondent, Department of Education- Limpopo was represented by Modipa Portia, one of its officials. The proceedings were digitally voice recorded and conducted in English. The parties handed in bundles of documents marked as follows; Respondent’s bundles – Bundle R, while the Applicant’s bundle – Bundle A.

Issues to be decided.

2. The nature of the dispute was about the Applicant’s alleged unfair labour practice in terms of section 186 (2) (b) of the Act, unfair suspension, or disciplinary action short of dismissal. I must decide whether the Respondent has committed an unfair labour practice by issuing the Applicant with a One Month suspension without pay as a sanction after a formal disciplinary hearing or not. To determine appropriate relief, if it is found that the Respondent has committed an unfair labour practice.

Background to the dispute

3. The Applicant was employed since 09 January 1989. She is currently employed as CS1 Senior Educator at Mmantutule Secondary School, Mapela Circuit, Mogalakwena District. She is earning a salary of R45 000.00 per month.

4. The Applicant was charged with the following misconduct: Charge 1: You contravened the provisions of Section 18(1) (q) of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA) in that on or around the 13th March 2023 or at any period incidental thereto, at or near Mmantutule Secondary School, you disrupted the visit and/or meeting of the District Support Team (DST) who had visited the School to come and give support to the staff members, and therefore, you conducted yourself in an improper, disgraceful or unacceptable behaviour while on duty.

5. Charge 2: By acting as in charge 1 above, you contravened the provisions of Section 18 (1) (s) of the EEA in that you incited other personnel to unprocedural and unlawful conduct.

6. Charge 3: You contravened the provisions of Section 18(1) (i) of the EEA, in that on or around 13th March 2023 or at any period thereto, at or near Mmantutule Secondary School, you were requested or instructed by the Principal to allow the District Support Team (DST) to continue with the process of monitoring and support at the school, but you failed and therefore, you failed to carry out a lawful order or routine instruction without just or reasonable cause.

4. She was subjected to a disciplinary hearing, which was concluded on 13 September 2023. She was found guilty of all the three (3) charges and issued with a sanction of Three Months Suspension without pay. She appealed the sanction, and it was reduced to One (1) Month Suspension without pay and Final Written Warning.

Survey of the Applicant’s evidence and argument.

Three witnesses testified for the Applicant. The first witness was the Applicant herself. Molatelo Anthonia Mashabela testified under oath and in English that:

4. On 10 March 2023, while she was at home, she received a message from the principal, Mr. Monareng Joseph about the visit of the District Support Team (DST) which was going to be conducted on 13 March 2023. On 13 March 2023 at around 8h00AM, the DST arrived at their school, Mmantutule Secondary School.

5. The site stewards, Mr. Mabusela L.J called all SADTU members for a site meeting. The visit by the DST was discussed and the members agreed to send representatives to go and raise their concern to the principal and the DST. Their concern was that the visit was on short notice. The members delegated to meet with the principal and the DST comprised of herself, Mr. Mabusela L.J and Motlhake R.M. They met with the principal and the representatives of the DST. The DST was represented by Mr. Lebelo, Ms. Matshaba, Ms. Shirende, Mr. Musetha, Ms. Matlou and the late Rammutla. They all deliberated about the short notice of the visit and the tools that were needed. They were not provided with the tools. The deliberations nearly got out of hand when one of the representatives of the DST insulted them (delegation from SADTU). However, at the end they all agreed that the visit would not continue given the prevailing circumstances and signed an agreement thereof (pages 2 and 17 of Bundle A).

6. She received the verdict of her disciplinary hearing the same time with the sanction. She was not given an opportunity to present her mitigating factors before the pronouncement of the sanction.

7. During cross examination, she testified that the disciplinary hearing report and the written verdict report were received one day from each other. She did not disrupt the visit and incite anybody. She was puzzled by the action of the Respondent in charging her while there was an agreement that the visit would not continue. She does not agree that she failed to carry a lawful instruction. The respondent was unreasonable by issuing her with One Month Suspension without pay because she did not stop the visit. She was not acting in her personal capacity but representing SADTU members.

The second witness of the Applicant was Mabusela Leseba Joseph. Mabusela Leseba Joseph testified under oath and in English that:

8. He is a Teacher at Mmantutule Secondary School since 2017. He was the site stewards of SADTU at the school. He saw the notice of the DST visit for the first time on 13 March 2023. He asked permission from the principal to hold a site meeting (SADTU members) to discuss the DST visit. The principal granted them permission. The majority of SADTU members were not aware of the DST visit. They held the site meeting and agreed to send a delegation to the principal and the DST. The SADTU delegation comprised of himself, Motlhake R.M and the Applicant.

9. They then met with the principal and the representatives of DST. As a SADTU delegation they raised their concerns which were accepted by the DST. He was the one addressing the meeting. An agreement was signed, and the meeting adjourned amicably. The signatures were an acknowledgement of the concerns which were tabled before the meeting (pages 2 and 17 of Bundle A).

10. During cross examination, he testified that the Applicant was accompanying him to the meeting with the principal and the DST. He was surprised by the charges against the Applicant because it was supposed to be him to be charged as he was the one addressing the meeting. The only time the Applicant spoke was when one of the representatives of the DST, Mr. Musetha insulted them. The Applicant told Mr. Musetha to respect the meeting, of which Mr. Musetha apologized. They did not stop the visit of the DST. The DST agreed to postpone the visit.

The third witness of the Applicant was Mothukoa Leseba Melton. Mothukoa Leseba Melton testified under oath and in English that:

11. He was an Educator at Mmantutule Secondary School since 2016. On 10 March 2023, he saw the message from the school WhatsApp group about the visit of the DST which was to be conducted on 13 March 2023. The message was forwarded by the school principal, Mr. Monareng M.J. Mr. Mabusela organized an urgent SADTU site meeting. In the meeting SADTU members raised some concerns about the DST visit to their school. SADTU site members delegated Mr. Mabusela L.J, Ms. Motlhake R.M and the Applicant to go and raise their concern with the principal and the DST. After thirty (30) minutes the SADTU delegation came back with a report. The report was that the DST has agreed to the concerns of SADTU members (pages 2 and 17 of Bundle A).
12. During cross examination, he testified that he was not part of the meeting with the principal and the DST.

The Respondent’s evidence and argument.

Three witnesses testified for the Respondent. The first witness was Monareng Madikana Joseph. Monareng Madikana Joseph testified under oath and in English that:

13. He was the principal of Mmantutule Secondary School in 2023. On 13 March 2023, the DST visited his school. While he was preparing the venue for the DST, he was approached by SADTU site committee which was not happy with the DST visit. It was Mr. Mabusela L.J, Motlhake R.M and the Applicant who replaced Lebelo K.K who was not there. Mr. Mabusela L.J indicated to him that SADTU was not allowing the DST visit as it was on short notice. The notice was on 10 March 2023 for a meeting of the 13th of March 2023. The SADTU delegation together with him met the representative of the DST. SADTU indicated that they did not want the visit to continue. There was no agreement in the meeting because SADTU was saying the DST visit should not go on. The DST could not have forced themselves to continue with the visit, it had to stop.

14. The Applicant was one of the leading figures who came and talk about the DST visit. The Applicant was not the only one to be charged with misconduct for stopping the DST visit, all the three (3) of them were charged. He recommended that the Applicant be charged with misconduct. He remembered the Applicant talking but could not remember what she was saying because she was not talking to him.

15. During cross examination, he testified that page 17 of Bundle A reflects the signatures of those who were in the meeting. The DST indicated that given the situation, they would not continue with the visit. Mr. Mabusela L.J was the one who presented the concerns of SADTU. All the delegation of SADTU participated in stopping the visit of the DST. The Applicant was charged with misconduct for being part of the SADTU delegation as all were charged.

The second witness was Matlou Nkaba Margaret. Matlou Nkaba Margaret testified under oath and in English that:

16. She is the Deputy Chief Education Specialist responsible for science subjects. She was managing the DST. On 13 March 2023, she was at Mmantutule Secondary School. They were supposed to do support in terms of the curriculum support, unfortunately it was not possible. The SADTU site committee of Mmantutule Secondary School prevented them from performing their duties. They were told that they were not welcome at the school. The Applicant told them that they were not going to be given anything to work with because they were not welcomed as the visit was on short notice. As the DST, they did not agree with the postponement of the visit. After the situation at the school, they drove back to their offices. Twenty-One (21) officials who were part of the DST were paid for doing nothing on that day, the 13th of March 2023.

17. During cross examination, she testified that the SADTU site committee prevented them from doing support to the school by saying that they were not going to be given anything to work with and they were not welcome. The program of giving support to the school did not start on 13 March 2023 at Mmantutule Secondary School.

The third witness was David Rampamba Musetha. David Rampamba Musetha testified under oath and in English that:

18. He was the Deputy Chief Education Specialist responsible for support and monitoring of curriculum implementation. On 13 March 2023 he was at Mmantutule Secondary School. They have the DST program. They were busy having a brief in the principal’s office when three (3) SADTU site committee delegation came in. One of the SADTU delegations, Mr. Mabusela L.J told them that they were not welcome. They could not proceed with the visit because they were not welcomed by the SADTU site committee. He indicated that if SADTU site committee members were intelligent enough, they would have gone to the school next door and seen their (DST) tools. He was made to withdraw the statement, of which he did. They did not agree to stop the visit. The signatures on page 17 of Bundle A were to show that they were there in the meeting and not that there was an agreement to stop the visit.

19. During cross examination, he testified that Mr. Mabusela L.J was the one who told them that they were not welcomed, and the Applicant nodded when Mabusela was talking. Mr. Mabusela L.J was referring to “we” when he talks, and he could not object that Mabusela was referring to all the SADTU members. The signatures on page 17 of Bundle A were the acknowledgement that he was part of the meeting (DST, principal, and SADTU site committee delegation). The DST visit was stopped by the Applicant and her team. By saying he should withdraw his statement, the Applicant was showing that she was part of the disruption.

Analysis of the evidence and arguments

20. The Applicant is required to prove on the balance of probabilities that the conduct of the Respondent in relation to the issuing of a One (1) Month Suspension without pay and Final Written Warning was unfair. I have considered the oral and documentary evidence of the parties in determining the outcome of this dispute. The Applicant is challenging the fairness of the reason for the issuing of a sanction of One Month Suspension without pay and Final Written Warning. I am going to concentrate on all the three charges on which the Applicant was found guilty in the internal disciplinary hearing.

21. Charge 1: The testimony of the Applicant in relation to this charge was that on the 13th of March 2023, the DST visited their school, Mmantutule Secondary. SADTU site committee organized an urgent meeting wherein the visit by the DST was discussed. Concerns were raised by SADTU members at the school and a decision to send a delegation to go and raise those concerns to the principal and DST was made. She was part of the three members of SADTU, Mr. Mabusela L.J, Ms. Motlhake R.M and herself who were delegated to meet with the principal, Mr. Monareng, and the DST representatives. The Respondent did not dispute this evidence. All the witnesses of the Respondent testified that the three delegations from SADTU site committee came and met with the principal and the DST representative. All the witnesses of both the Applicant and the Respondent who were in the meeting testified that the issue deliberated on was the concerns raised by SADTU site committee delegations. There was no dispute that those concerns were raised by Mr. Mabusela L.J in the meeting. Mr. Mabusela L.J was the one who was talking on behalf of the delegations. It was also not disputed that the only time that the Applicant talk was when she was responding to an alleged insult by Mr. Musetha and that Mr. Musetha withdrew his statement.

22. The witnesses of the Respondent, Mr. Monareng and Mr. Musetha testified that the Applicant was preferred with this charge because she was part of the delegations of the SADTU site committee who met with the principal and the DST. The reason for charging the Applicant with the disruption of DST visit was that she participated with the SADTU delegation in the meeting where the end of it led to the discontinuation of the DST visit. However, the visit did not continue because the SADTU delegation indicated that the DST visit was on short notice, and they were not supplied with tools to be used. Even though the SADTU delegations were referring to pages 2 and 17 of Bundle A as an agreement signed between them and DST, I agree with the Respondent that the signatures thereto were for the attendance of the meeting. There was no written agreement that the visit should be postponed. However, the DST and the principal had the powers to instruct all the educators, including SADTU members to continue with the visit. The DST should blame themselves for stopping the visit because of the concerns of SADTU delegations.

23. The Applicant attended the meeting with the principal and the DST as a delegate from SADTU. I agree with her that she was not there in her personal capacity, but as part of a union representation. One witness of the Respondent, the principal, Mr. Monareng testified that all the three delegations from SADTU were similarly charged with misconduct, but no documents were presented to that effect. Mr. Mabusela was not charged with misconduct hence he testified that the person who was supposed to be charged with misconduct was him and not the Applicant. The Respondent did not challenge this evidence. I do not have any evidence which suggests that the Applicant disrupted the visit by the DST at Mmantutule Secondary School on 13 March 2023. Considering the aforesaid, it is my finding that the Applicant is not guilty of this charge.

24. Charge 2: Having found the Applicant not guilty to charge one, it is not necessary to analyze evidence of the parties in relation to this charge. This charge is linked to charge one and as such the Applicant is not guilty to it as well.

25. Charge 3: The Applicant’s testimony was that she did not fail to carry a lawful instruction. The witness of the Respondent, the principal Mr. Monareng did not give any testimony regarding the instruction given to the Applicant. There is no evidence which suggests that the Applicant was given an instruction to allow the DST to continue with their visit. In fact, the Applicant was never instructed to allow the DST to continue with their visit. The DST themselves decided to discontinue with their visit after SADTU raised concerns about their visit. The Applicant is not guilty of this charge.

26. It is common cause that the Chairperson of the disciplinary hearing issued the Applicant with a sanction of Three Months Suspension Without pay. The Applicant appealed to the Executing Authority. The appeal authority reduced the sanction to One Month Suspension without pay and a Final Written Warning. Based on my finding of not guilty to all the charges, I am of the belief that it would be appropriate to temper with the sanction imposed by the Respondent. I find that the decision of the Respondent does not pass the test of reasonableness. It was one that any reasonable decision maker could not have taken. I, therefore, find that the sanction imposed by the Respondent was inappropriate, and unfair. The court in SAPO v Jansen Van Vuuren NO and others (2008) 29 ILJ 2793 (LC) held that “commissioners may set aside suspension imposed as a disciplinary penalty if they find, on the merits, the Employee was not guilty of the conduct for which he or she was suspended”. The Applicant was not found guilty for all the three charges of misconduct and as such the sanction of One Month Suspension without pay and Final Written Warning should be set aside.

27. In view of the above, I find that the Applicant has proved on the balance of probabilities that the Respondent has committed an unfair labour practice by issuing her with a sanction of One Month Suspension without pay and Final Written Warning. Therefore, the conduct of the Respondent was unfair. There was an unfair conduct committed by the Respondent and as such the Applicant qualifies for the relief she sought.

Award

28. I find that the Respondent, Department of Education – Limpopo committed unfair conduct in respect of the Applicant, Mashabela Molatelo Anthonia.

29. The sanction of One Month Suspension without pay and Final Written Warning is hereby set aside.

30. The Respondent, Department of Education – Limpopo is hereby ordered to reverse the unpaid one month’s salary of the Applicant, Mashabela Molatelo Anthonia, by no later than the 22nd of September 2024.

VICTOR MADULA
ELRC PANELIST