IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC1327-24/25GP

In the Arbitration Proceedings between:

SADTU obo HENDRIK LUKAS GOUWS APPLICANT
And
HOD, DEPARTMENT OF EDUCATION, GAUTENG PROVINCE RESPONDENT

PANELIST: Ntjatja Klaas Aphane
HEARD:
22 April 2025
DELIVERED:
14 May 2025

 ARBITRATION AWARD   

Applicant’s representative: Karabo Setail (SADTU Official) on behalf of Hendrik Lukas Gouws
Respondent’s representative: Mercy Modise (Labour Relations Manager) on behalf of the Department of Education: Gauteng Province

DETAILS OF THE HEARING AND REPRESENTATION

1. This is the arbitration award in the arbitration proceedings concerning an alleged unfair labour practices in relations to unfair conduct of disciplinary action short of dismissal dispute between Hendrik Lukas Gouws, and the Respondent is the Department of Education, Gauteng Province.
2. The dispute was referred to the ELRC in terms of section 186(2) of the Labour Relations Act 66 of 1995 (the LRA).
3. The arbitration was scheduled and held on 22 April 2025, all parties and the witnesses physically attended at the district offices of the Department of Education at Tshwane, Gauteng South District, and it was held under the auspices of the ELRC in terms of section 186(5) (a) of the LRA.
4. The Applicant appeared in person and he was represented by his trade union representative from, SADTU, Karabo Setai. The Respondent was represented by its employee, Mercy Modise, its Labour Relations Manager.
5. The parties proposed and agreed to submit written heads of arguments to the CMO, on or before close of business on 29 April 2025.
6. The award is issued in terms of section 138(7) of the LRA.
7. The Applicant was represented and therefore I adopted an inquisitorial approach to resolve the dispute.
8. The arbitration proceedings were digitally recorded and handwritten notes were taken.
9. The relief sought by the Applicant was setting aside of the guilty verdict and the sanction.

THE ISSUES TO BE DECIDED

10. I must determine whether the Respondent has committed an unfair labour practice when the Applicant was found guilty of the charge and a sanction short of dismissal was pronounced on the Applicant, i.e. a fine of R6000,00. Both substantive and procedural fairness are in dispute. If I find that the sanction was unfair, I must determine the appropriate relief. THE BACKGROUND TO THE DISPUTE
11. The Applicant is an Educator at Unica School of Autism and was appointed on 01 January 2018, earning a monthly salary of R31 209,55.
12. The Applicant was subjected to a disciplinary process and was found guilty and fined R6000,00 as a sanction.
13. The Applicant referred the alleged unfair labour practice to the ELRC and the dispute was scheduled for arbitration on 22 April 2025.
14. The parties were present at the arbitration with their respective witnesses.
15. The Respondent’s representative submitted a bundle of documents, bundle “R”, consisting of pages 1 to 66, whilst the Applicant’s representative submitted a bundle, “A”, consisting of pages of 1 to 76.
16. The Applicant’s representative called two witnesses in support of the Applicant’s case (Hendrick Lukas Gouws and Linda Van Wyk), whilst the Respondent’s representative also called two witnesses in support of its case, (Amelia Julia Perumal and Tsholofelo Moshidi Ratlhogo).
17. The pre-arbitration meeting minutes was signed and is part of the bundle.
18. The parties proposed and agreed to submit written heads of arguments to our CMO, on or before close of business on 29 April 2025.
    The relief sought by the Applicant is to squash the sanction of R6000,00 fine.

THE COMMON CAUSES FACTORS

19. The Applicant performed remunerative work outside of his employment teaching role as estate agent at Remax without declaring such work and remuneration to the Respondent, contrary to laid down rules, policies and regulations of the Respondent.
20. The charge of misconduct was preferred against the Applicant, and he was subjected to an internal disciplinary process, and was found guilty and sanctioned.
21. The Applicant was charged with a misconduct in that on or about November 2022 to date, (24 November 2023), whilst outside working hours at Unica School he sold and rented houses as a real estate agent for Remax without the permission / approval of the employer.

SURVEY OF EVIDENCE

22. I wish to state from the onset, that not all the evidence presented were set out hereunder. Only a summary of the relevant evidence is contained herein.

THE APPLICANT’S CASE

23. The Applicant was the first to testify and his evidence under oath was that he was an employee of the Respondent, employed as an Educator at Unica School, from 01 January 2018, earning a monthly salary of R31 209,55.
24. He submitted the declaration form to the offices of the Respondent but the forms were not fully completed as the signature of the principal was missing and therefore forms were not accepted.
25. He declared the remuneration outside his teaching work to a certain lady who told him that if he works less than forty (40) hours, then there was no need to declares and handed back the form to him. The lady in question was unknown to him but must be Tsholofelo, a senior personnel officer as per page A35. He was told that there is no need to declare second remunerative work if the second work is less than 40 hours.
26. He ultimately submitted a properly completed form signed by the Principal on 02 November 2023.
27. There were other colleagues that were doing remunerative work outside the scope of employment labouring under the impression of the 40 hours’ rule.
28. He was not earning enough salary to pay maintenance of his daughter to his ex-wife, and to rent accommodation and survive, hence there was need for a second income in order to meet his financial obligations.
29. He started at Remax after his interviews in December of 2022. The Principal did indicate the need to declare second remunerative work but he felt that he was victimised by the Principal.
30. During the cross examination he admitted that he was wrong to misrepresent facts that it was the senior personnel officer, Tsholofelo who prevented him from submitting the declaration for the second remunerative work and who advised him about what he called 40 hours’ rule. (A28).
31. The second witness for the Applicant was Linda Van Wyk, who testified that she was acting deputy school principal at the time of the incident and the Applicant was under her leadership.
32. At some stage she was called to the Principal’s office where the issue of the second remunerative work of the Applicant was discussed,
33. At some stage Carla Van Wyk sent a big envelope with her and the Principal to hand over to Tsholofelo, after trying different offices and different floors. Tsholofelo told her that if Carla is working for less than 40 hours, there is no need to declare second remunerative work.
34. Tsholofelo provided her with her email address. There was an email communication between Carla Van Wyk and Tsholofelo.
35. During a staff meeting, it was discussed and emphasised that teachers must declare their second remunerative work, for those doing second remunerative work.

THE RESPONDENT’S CASE

36. The Respondent’s first witness was Amelia Julie Perumal, who testified under oath that she was an employee of the Respondent, employed as a school principal at Isaac More and she was an employee of the Respondent for 32 years and 20 years of the 32 years as a school principal.
37. She received several complains wherein it was reported that the Applicant was in and out of the school, requesting to leave early and at times leaving during school hours to do private work. The investigation was conducted and indeed it was discovered that he is doing remunerative work without permission.
38. There were other two educators that were doing remunerative work and they declared their second work to the Respondent and approval was granted but the Applicant did not source approval before doing second remunerative work as a real estate agent.
39. She advised the Applicant to declare and complete the necessary form. During a staff meeting she encourage staff to declare their second remunerative work.
40. The public service regulations of 2016, more specifically clause 13 J, subclause (i) and
    (ii) specifically prohibit employees inclusive of the Applicant from rendering remunerative work outside their working hours without permission and all employees are required to declare such remunerative work. This is also to enforce section 30 of the Public Services Act that also requires of all employees to declares remuneration work and sought permission before such work can be rendered. The Employment of Educators Act 76 of 1998, section 33(b) provides that no educators shall without permission of the employers perform or undertake to perform remunerative work outside the educator’s official duty or work.
41. There was also THRS Internal Memorandum No 15 of 2024, clause 7 which requires all employees to declare any remunerative work outside the scope of their employment and to desist from rendering services without permission whilst employed in the Department.
42. The Applicant despite advice rendered services as real estate agent of Remax from October / November 2022, without declaring such work.
43. The second witness of the Respondent was Tsholofelo Moshidi Ratlhogo, who testified that she is an employee of the Respondent, employed as a senior personnel officer.
44. Her core task is to do exit interviews, termination of the employment contract, leave audit and remunerative work outside employment forms processing.
45. She would receive the forms from the employees, check if the forms are correctly filled out and then send it to head office for processing. She does not get involved on the merits and demerits or rejection or approval of the forms for remunerative work outside the normal working set-up.

ANALYSIS OF EVIDENCE AND ARGUMENTS

46. In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedures and relevant prescripts and legislations.
47. 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.
48. The Applicant was charged with a misconduct and found guilty and given a sanction of a fine of R6000,00 payable over four months. He appealed the sanction and the appeal authority upheld the sanction.
49. He referred the dispute to the ELRC for determination as to whether the sanction interface with the gravity of the misconduct.
50. The two witness of the Respondent testified and their testimony was consistent, clear and highly probably whilst the Applicant’s testimony and that of his witness was riddled with so much inconsistencies. I find their testimonies incredible and improbable.
51. The Applicant testified that he submitted forms after going so much up and down with clear directions as to the offices that handles the forms but on page A28 number (2), he misrepresented facts that it was Tsholofelo that that handed over his forms and advising him of the 40 hours’ rules.
52. It was his evidence in chief that he gave it to another lady unknown to him, and the evidence of Linda Van Wyk was that whilst sent by Carla to submit, she was given details of Tsholofelo but there is no concrete and correct evidence of the 40 hours’ rule. Even Linda Van Wyk was not credible in her evidence because she was never privy to any discussions where the 40 hours’ rule was discussed saves to say one email correspondence, in a one-sided manner, she sought to verify if the 40 hours’ rule applies and such was never confirmed.
53. It was never disputed that the principal advised and encouraged staff in staff meetings to declare and there were two other colleagues that did declares their remunerative work outside normal work. Linda Van Wyk confirmed this in her evidence in chief as well.
54. Granted that the Applicant’s salary was stretched due to maintenance of his children and ex-wife but that cannot be a license to flout rules, breach laws and procedures to supplement his income. He is not the only one earning that salary and therefore his personal challenges cannot be used to condone wrong doing.
55. The Applicant was also disingenuous in that when reprimanded by the Principal for leaving early to do his private work, he viewed that as to amount to victimization. It could have been expected of him to comply with the rules and regulations like all educators.
56. I do not find the Respondent’s sanction to be too harsh and inappropriate in the circumstances. Although his care for his children could be applauded, it did not justify the failure to comply with the rules.
57. The Applicant does not seem to appreciate the wrongfulness of his conduct and the Respondent cannot be faulted for taking appropriate disciplinary action against the Applicant.
58. In Department of Labour v GPSSBC (2010) 231 ILJ 1313 (LAC), the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge the wrongfulness of his / her conduct.
59. I therefore find on a balance of probabilities that the Respondent’s disciplinary action against the Applicant and the sanction did not constitute an unfair labour practice as defined in section 186(2)(b) of the LRA. The Applicant contravened section 30 of the Public Services Act, section 33(b) of the Employment of Educators Act 76 of 1998 as well THRS Internal Memorandum No 15 of 2024.
60. The Applicant failed to discharge the onus of proving the existence of an unfair labour practice short of dismissal and his claim stands to be dismissed on the above grounds.

FINDING

61. The onus is on the Applicant to prove an unfair labour practice relating disciplinary action short of dismissal, and I am of the opinion that the Applicant did not discharge that onus. I am satisfied that the Respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as provided for in section 186(2)(b) of the LRA. Accordingly, the Applicant’s claim must be dismissed.
62. The Applicant is not entitled to relief.

AWARD

The application is dismissed.
Thus, done and signed at Pretoria, dated 14 May 2025.