15 May 2026 – ELRC892-25/26 EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MOUNT FRERE
IN THE MATTER BETWEEN
PSA OBO JACOBS SIBUSISO APPLICANT
AND
DEPARTMENT OF EDUCATION EASTERN CAPE RESPONDENT
CASE NO ELRC892-25/26 EC
DATE/S OF HEARING 20/01/2026 – 28/04/2026
DATE AWARD SUBMITTED 15 MAY 2026
NAME OF PANELIST SIZIWE GCAYI

SUMMARY : Labour Relations Act No 66 of 1995 – section 186(2) : Alleged unfair labour practice by the employer.

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

The arbitration hearing was held under the auspices of the ELRC. The Applicant declared a dispute in terms of section 186[2] of the Labour Relations Act 66 of 1995 [“the LRA”], as amended. The matter was held on 20 January 2026, 11 March 2026 and finalised on 28 April 2026 at Ingwe TVET College Mount free Campus at 09h00. Mr Thozamile Mabovula an official represented the Respondent [Ingwe TVET College]. Mr Zigqibo Kahla an official from PSA represented the Applicant – [ Sibusiso Jacobs ]
The proceedings were electronically and manually recorded.
The proceedings were conducted in English.
The parties were given up until 05 May 2026 to file their closing arguments with the Council and they complied. In penning down this award their submissions were considered.

ISSUES TO BE DECIDED

I am required to determine whether the Respondent committed unfair labour towards the Applicant by placing him on precautionary suspension. If yes, I must decide on the appropriate relief in terms of section 193 and 194 of the LRA.

BACKGROUND OF THE DISPUTE

The Applicant is employed as a lecturer for business studies. His monthly salary is R34063-50.The Respondent charged him for misconduct. On 06 February 2025 he attended disciplinary hearing and the matter was not concluded. On 19 June 2026 he was placed on precautionary suspension. On 20 January 2026 the Applicant was still on precautionary suspension. The disciplinary hearing was still on going. On 28 April 2026 the disciplinary hearing was still on going and the Applicant was still on precautionary suspension.
The relief sought by the Applicant is upliftment of suspension and compensation.

SURVEY OF SUBMISSIONS AND ARGUMENTS
Applicant’s case

The Applicant testified himself and called one witness in support of his case. He testified as follows: He joined the Respondent on 01 August 2014 as post level 1 lecturer. He taught Report 191, NCV. He also mentioned the modules he taught. In relation to the charges Bundle A page 7 was read on record. It was his evidence that the disciplinary hearing commenced on 06 February 2025. He was placed on precautionary suspension on 19 June 2025. Bundle A page 5 was read on record. Conditions of suspension. Page 17 paragraph 7.2 was read on record. He mentioned that during disciplinary hearing investigation report was requested and not produced by the Respondent. It was his evidence that there was no investigation report. He maintained that his suspension took place four months after the disciplinary hearing. He maintained that the precautionary suspension was unfair. It was unjustifiable. It has affected him emotionally and mentally. He was currently attending doctors. It affects his career growth; he could not apply for trainings and participate in career development. The relief sought is upliftment of precautionary suspension and compensation.
Mr Myolisi Majamani [“Majamani”] testified as follows: He was employed by the Respondent. He was a post level one lecturer. He was in the marketing department. He mentioned that the disciplinary hearing of the Applicant commenced on 06 February 2025. The Applicant was placed on precautionary on 19 June 2025. It was his evidence that the precautionary suspension was not inline with Resolution 1 of 2003. There was no investigation conducted by the Respondent. There was no likelihood that the Applicant would interfere with the complainant. In relation to the postponements, it was his evidence that they were granted by the chairperson of the disciplinary hearing.
Respondent’s Case
The Respondent led evidence of one witness. Mr Siyabonga Sidloyi [Sidloyi] testified as follows: He was in the employment of the Respondent holding a position of a campus manager. In relation to the dispute, he mentioned that he was informed by labour relations officer that the Applicant was placed on precautionary suspension in June 2025. In October 2024 there were allegations that were reported by the student to the Ms Neti. Meetings were held on 31 October 2024 and November 2024 to discuss the matter. He escalated the matter to Mr Gewu- Deputy principal academic services. The disciplinary hearing of the Applicant commenced in February 2025. The matter was postponed in February 2025 to April 2025. The matter was postponed for Applicant to get a new representative in April 2025 to July 2025. The precautionary suspension came in June 2025. Bundle A page 17 para 7.2 was read on record. It was his evidence that the employer may suspend or not suspend the employee. The delays in the precautionary suspension was eleven days.
ANALYSIS OF SUBMISSIONS AND ARGUMENTS
It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
Section 23(1) of the Constitution Act 108 of 1996 provides that everyone has a right to fair labour practices. In NEHAWU v University of Cape Town (2003) BCLR 154 (CC) Ngcobo J held that “our Constitution is unique in constitutionalising the right to fair labour practice, but the concept is not defined in the Constitution. The concept of fair labour practice is incapable of precise definition. This problem is compound by the tension between the interests of workers and interests of the employers that is inherent in labour relations. Indeed, what is fair depends upon the circumstances of a particular case and essentially involves a value judgment. It is therefore neither necessary nor desirable to define this concept. The concept of fair labour practice must be given content by the legislature and thereafter left to the meaning in the first instance, from the decisions of specialist tribunals including the LAC & the Labour Court. These courts and tribunals are responsible for overseeing the interpretation and application of the LRA, a statute which was enacted to give effect to section 23(1). In giving content to this concept the courts and tribunals will have to seek guidance from domestic and international experience. Domestic experience is reflected both in the equity based jurisprudence generated by the unfair labour practice provision of the 1956 LRA as well as the codification of the unfair labour practice in the LRA.”
The purpose of the LRA “is to advance economic development, social justice, labour peace and democratization of the workplace.” This is to be achieved by fulfilling its primary objects which includes giving effect to section 23 of the Constitution. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to an unfair labour practice.
Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.
Section 186[2][b] reads as follows “the unfair suspension of the employee or any other unfair disciplinary action short of dismissal in respect of an employee”.
To constitute unfair labour practice the employers conduct complained of must involve any of the unfair acts or omissions specified and listed in section 186(2).
Resolution 1 of 2003 clause 7.2 deals with precautionary suspension. It provides as follows: 7 [a] The employer may suspend an employee on full pay or transfer the employee if [i] the employee is alleged to have committed a serious offence, and [ii] the employer believes that the presence of an employee at the workplace might jeopardise any investigation into the alleged misconduct or endanger the well-being or safety of any person or state property”
It is common cause in these proceedings that the Applicant is on precautionary suspension since June 2025. It is also common cause that the disciplinary hearing commenced on 06 February 2025. The Applicant was placed on precautionary suspension whilst the disciplinary hearing commenced. The disciplinary hearing is still on going, no indication when it will be concluded.
The Applicant argued that the precautionary suspension was unfair, it prejudiced him. It denied him access to workplace and participate on career growth. He was severely prejudiced. He could not participate on occupational programmes like his other colleagues. His colleagues were attending trainings and workshops for the new programmes that the Technical & Vocational Education Training [TVET] colleges were introducing. Sidloyi confirmed the version of the Applicant. It was the evidence of Sidloyi that there were lecturers that were attending trainings and workshops in Mthatha, however not all lecturers have been trained.
The Applicant argued that the suspension has affected him financially, he did not receive the pay progression because he did not participate on the Integrated Quality Management System [ IQMS] . His version was confirmed by Sidloyi.
The Applicant maintained that there was no investigation conducted by the Respondent. It was unfair for him to be placed on precautionary suspension. The chairperson of the disciplinary hearing Mr Loyiso Mashoai advised the Respondent to uplift the suspension. This piece of evidence was not disputed by the Mr Mabovula. I believe if the Applicant was misleading the Council, Mr Mabovula would have challenged his evidence. I don’t want to comment on why Mr Mashoai advised the Respondent to uplift the suspension.
Before the Council is the evidence of Sidloyi confirming that there was no investigation and he did not conduct any investigation. If there is no investigation being conducted by the Respondent, what informed the Respondent to place the Applicant on precautionary suspension? Clause 7.2 [a] of Resolution 1 of 2003 is very clear under which circumstances suspension may take place. The clause is also not mandatory as it was explained by Sidloyi. The Employer may suspend or not suspend the employee.
There is no evidence from the Respondent that the Applicant interfered with the witnesses of the Respondent on the disciplinary hearing which is still on going. I don’t want to comment on the seriousness of the allegations against the Applicant. Sidloyi did not take the Council into confidence on the seriousness of the allegations for the Council to arrive at a fair decision. I remain in the dark whether there are serious allegations or not.
With the evidence before the Council, I am convinced that the Applicant managed to discharge the onus placed on him.
The relief sought by the Applicant is upliftment of the suspension and compensation.
In terms of section 193 [4] of the LRA an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering re-instatement, re-employment or compensation.
In IMATU obo Sankhanyane v Emfuleni Local Municipality [2016] ZALCJHB 29 (handed down on 29 July 2016), the Labour Court held that when the Commissioner finds that a suspension of an Employee amounted to an unfair labour practice, it was irregular to simply order his return to work without considering whether, based on the facts of the case, to consider awarding compensation as a form of solatium.
The same was confirmed by the LAC in Thembani Banda v GPSSBC & OTHERS A2025-092122 delivered on 15 April 2026. In the current matter solatium is to address the wrong occasioned by the unfair suspension and to deter the Respondent on future contraventions on employees’ constitutional rights.
Section 194 of the LRA invites me to award compensation which is just and equitable in all circumstances. A compensation of one salary is just and equitable in the circumstances. It is common cause that the Applicant earns R34 063-50. [ Thirty four thousand and sixty three rands and fifty cents]
With all the evidence placed before the Council I conclude that the Applicant managed to discharge the onus placed on him. The conduct of the Respondent amounted to unfair labour practice for the reasons highlighted above. In the circumstances I hereby make the following award:
AWARD
The Applicant managed to discharge the onus placed on him. The conduct of the Respondent amounted to unfair labour practice. The Respondent is ordered to uplift the precautionary suspension with immediate effect. The Respondent is ordered to pay the Applicant one-month salary [R34 063-50] [Thirty-four thousand and sixty-three rands and fifty cents.] within 21 days upon receiving this award. Signature: