14 October 2025 -ELRC513-25/26GP

IN THE MATTER BETWEEN: ELRC513-25/26GP

NEHAWU obo Siyabulela Lee Tshoko APPLICANT

And

South-West Gauteng TVET College RESPONDENT

AWARD
8.1. The applicant’s suspension to be lifted with effect from 01 November 2025.
8.2. The respondent is further ordered to pay the applicant compensation equivalent to the applicant’s four months salary calculated as follows: R32 705.00 x 4=R130 820.00.
8.3. The amount of R130 820.00 is to be paid to the applicant on or before 01 November 2025. …………………………………………………..
ELRC COMMISSSIONER: NICHOLUS SONO
DATE: 07 October 2025

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, (the LRA) was heard and finalized virtually on 23 September 2025.
1.2. Both parties attended the proceedings. The applicant was represented by Themba Mntameka, NEHAWU union official, while the respondent was represented by Shawn Carney, its Employee Relations.
1.3. The hearing was held in English and was digitally recorded.

ISSUES TO BE DECIDED
2.1. Whether or not the employee’s prolonged suspension is procedurally and substantively fair. If not, I must determine appropriate relief in terms of section 193 of the LRA.

BACKGROUND TO THE ISSUES
3.1. The applicant is employed by the respondent as a lecturer, earning a monthly salary of R32 705.00. The applicant viewed his suspension as having been procedurally and substantively unfair and prayed for his suspension to be uplifted and to be compensated.
3.2. The following issues are common cause:
a) the applicant was suspended on 14 February 2025 until to date.
b) The applicant was charged and subjected to a disciplinary hearing. The disciplinary hearing was held and finalized on 15 and 16 April 2025.
c) At the time of the arbitration proceedings, the chairperson of the disciplinary hearing has not yet issued the outcome/sanction.
d) At the time of his suspension, the applicant was employed as a deputy marking centre manager and part-time lecture for part-time classes.
e) The applicant’s suspension is on full pay without any loss of benefits.
3.3. Prior to the commencement of the proceedings, applicant submitted a bundle of documents marked “A”, while the applicant submitted a bundle of documents marked “R”.
3.4. The applicant closed his case after leading his own evidence and two witnesses, while the respondent chose to close its case without leading evidence.
3.5. 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, Siyabulela Lee Tshoko, testified that when he reported for duty on 14 February 2025, he was suspended after being denied excess to the campus. On 15 and 16 April 2025, the disciplinary hearing was conducted and finalized. On 07 May 2025, both parties submitted written closing arguments to the chairperson. To date, the chairperson has not yet issued the disciplinary hearing sanction/outcome. In terms of ELRC Collective Agreement No 1 of 2013, the chairperson must communicate the outcome of the hearing to the employee and the employer within five working days after the conclusion of the disciplinary enquiry. After the conclusion of the disciplinary hearing, the chairperson requested an extension to the prescribed five days, but he never expected that the extension would be more than 14 days. It is almost four months since the disciplinary hearing was concluded. The ELRC Collective Agreement also provides that in the case of serious misconduct, the employer may suspend the employee on full pay for a maximum period of three months and that the presiding officer may decide on further postponement, such a postponement must not exceed 90 days from the date of suspension. The disciplinary hearing was supposed to have been finalized within 90 days as per the collective agreement. The union has written to the principal and enquired about the outcome of the hearing and uplifting his suspension but without receiving any response. The respondent also never furnished him with the reasons for the prolonged suspension. One of his colleagues committed similar offence, but he was never suspended and continued working even after being found guilty after the disciplinary hearing.
5.2. The prolonged suspension and the delay in issuing the outcome of the disciplinary hearing have affected him dearly. The prolonged suspension has created some doubts and suspicions on his children regarding his innocence. His marriage has also been affected because of the sexual misconduct allegations levelled against him. During July 2025, he was admitted at the hospital. He is currently a psychiatric patient, and he is also taking prescribed medication. Professionally he has lost income for two semesters as deputy marking centre manager and as a part-time lecturer.
5.3. Under cross-examination, the applicant testified that if indeed he had threatened his colleague that had laid a complaint against him, the respondent was supposed to have transferred him to another campus since his subjects are taught at other campuses than to extend his suspension. Regardless of the circumstances, the respondent is obliged to comply with the collective agreement. He is not aware that the respondent is contacting the chairperson on a regular basis and enquiring about the disciplinary hearing outcome. If indeed the respondent is making regular contact with the chairperson, such was supposed to have been communicated to him or the union. The collective agreement does provides that the employer may suspend an employee on full pay or transfer the employee if the employee it is alleged that he has committed a serious offence and the employer believes that the presence of an employee at the workplace might jeopardize any investigation into the alleged misconduct, or endanger the well being or safety of any person or state property. The collective agreement also provides that if an employee is suspended or transferred as 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 and the chair of the hearing must then decide on any further postponement. Sexual harassment is a serious offence. He never threatened the complainant. He was also never charged for threatening the complainant. His disciplinary hearing was finalized immediately after both parties submitted their written closing arguments.
5.4. The applicant’s first witness was Tebogo Mophaleng. He testified that he is currently employed by the respondent as assistant director-labour relations. He is familiar with ELRC Collective Agreement No 1 of 2013. The applicant was suspended during February 2025, and to date he is still on suspension. The collective agreement provides that the outcome of the disciplinary hearing must be communicated to the parties within five days after the conclusion of the hearing. To date, the chairperson has not issued the outcome/sanction. The respondent has extended the applicant’s suspension because there are threats against the applicant and on the other hand, the applicant has threatened the complainant. The applicant was threatened by the complainant’s husband. The applicant was never informed that there are threats against him. The applicant’s suspension is excessive. The principal wrote a letter to the chairperson and enquired about the outcome of the disciplinary hearing. The chairperson requested more time to analyze the evidence submitted. The suspension was extended to keep harmony between the applicant and the complainant and to protect both. The employee was suspended with full pay without any loss of benefits.
5.5. Under cross-examination, Tebogo Mophaleng, testified that employee was suspended with full pay without any loss of benefits. The suspension was also extended to protect the applicant from the complainant husband’s threats and to protect the complainant from the applicant’s threats. The principal contacted the chairperson on two occasions. The applicant was not alerted about the threats from the complainant’s husband.
5.6. The applicant’s second witness was Andre Schlemmer. He is currently employed by the respondent as deputy principal: corporate services. The HR department falls under his leadership. He never played any role in the applicant’s suspension and disciplinary hearing. The applicant’s suspension is prolonged to protect the applicant and the complainant. The employee never requested to be protected but it is the respondent’s obligation to protect its employees. The chairperson was not appointed by the respondent but by the office of the DDG. The issue of the disciplinary hearing outcome was escalated to the Deputy Director General of education department.
5.7. Under cross-examination, Andre Schlemmer, testified that chairperson requested more time in issuing the disciplinary hearing outcome because she is busy with other cases and that the applicant’s case was complicated. The period of suspension is excessive. The delays in issuing the outcome of the hearing was escalated to the department’s DDG.

THE RESPONDENT’S CASE
6.1. The respondent did not call any witnesses or lead/submit any oral evidence.

ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1. Clauses 6.1, 6.4 and 7.21 of the Collective Agreement No 1 of 2013 (Disciplinary Code and Procedures) provide as follows:
6.1. In case of serious misconduct, the employer may suspend the employee on full pay for a maximum period of three months.
6.4. The presiding officer may decide on further postponement. Such a postponement must not exceed 90 days from the date of suspension.
7.21. The presiding officer must communicate the final outcome of the hearing to the employer and the employee within five working days after the conclusion of the disciplinary enquiry, and the outcome must be recorded on the personal file of the employee.
7.2. The respondent is legally obliged by Clauses 6.1, 6.4 and 7.21 of the Collective agreement to fix the period of suspension not to more than three months and to communicate the final outcome of the hearing within five working days after the conclusion of the disciplinary hearing. In this matter it is common cause that Clauses 6.1, 6.2 and 7.21 were not complied with by the respondent. At the time of the arbitration proceedings, the employee was on suspension for a period of seven months, and the outcome of the disciplinary hearing is outstanding four months after the conclusion of the disciplinary hearing.
7.3. It is the submission of the respondent that the chairperson requested more time to submit the outcome because she is dealing with other matters and that the applicant’s case was complicated. The respondent’s submission that the chairperson was dealing with other matters is not supported by any other evidence. Despite that the chairperson has requested more time to submit the outcome, four months is shockingly excessive, not justifiable and unacceptable.
7.4. The respondent’s submission for failing to set aside the applicant’s suspension once the three months or 90 days have elapsed, is highly questionable and unconvincing. It is common cause that the applicant was never charged for allegedly threatening the complainant. If indeed the respondent’s intention was to protect the applicant from the complainant’s husband and to protect the complainant from the applicant, such was supposed to have been communicated to the applicant and correct procedures be followed to institute additional charges to the applicant. It was held in SAPO Ltd v Jansen Van Vuuren NO and others (2008) 8 BLLR 798 (LC), that a suspension, even whilst investigations are underway, amounts to an unfair labour practice, if the period of suspension exceeds the period stipulated in a disciplinary code, collective agreement, regulations or contract of employment.
7.5. Having analyzed the evidence submitted, I have concluded that the respondent failed to submit convincing evidence to justify the prolonged suspension and failing to communicate the outcome of the hearing within five working days after the conclusion of the hearing.
7.6. The applicant sought to be paid damages for the loss of income and psychiatric expenses. The Labour Court has jurisdiction to determine a claim for damages, even if an unfair labour practice dispute has already been heard by the CCMA/Council. Gcaba v Minister of Safety and Security (2009)(CC), influences how claims for damages are brought. If a dispute arises from an employment decision, the first consideration would be whether it falls under the scope of LRA. If it does, the case would go to the Labour Court.
7.7. I have concluded that the applicant’s suspension be lifted, and he also be compensated with four months’ salary. In granting the four months compensation, I have considered the fact that the suspension is shockingly excessive without any justifiable reasons and the fact that reasons for failing to issue the outcome within the prescribed time frame was not substantiated.

8. AWARD

8.1. The applicant’s suspension to be lifted with effect from 01 November 2025.

8.2. The respondent is further ordered to pay the applicant compensation equivalent to the applicant’s four months salary calculated as follows: R32 705.00 x 4=R130 820.00.

8.3. The amount of R130 820.00 is to be paid to the applicant on or before 01 November 2025.