Panelist: THABO MARUPING
Case No.: ELRC441-26/27NC
Date of Award: 13 October 2026

In the ARBITRATION between:

SOLIDARITY obo ANTHEA KOTZE: (Applicant)
(Union / Applicant)

And

DEPARTMENT OF EDUCATION NORTHERN CAPE

(Respondent)

Applicant’s representative: Mr. Henco Breytenbach
Applicant’s address: SOLIDARITY – NC


Respondent’s representative: ABSENT
Respondent’s address: NC DEPARTMENT EDUCATION

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration concerned an alleged unfair labour practice dispute referred to the Education Labour Relations Council (ELRC) in terms of section 186(2)(b) of the Labour Relations Act 66 of 1995, as amended (“the LRA”).
2. The matter was heard virtually on 2 October 2026.
3. The Applicant, Ms Anthea Kotze, was represented by Mr H. Breytenbach, a representative from Solidarity.
4. The Respondent was absent. The matter was stood down for 30 minutes to afford the Respondent an opportunity to attend the proceedings. However, the Respondent remained absent. The matter had initially been set down for 9 September 2026, and the set-down notice had been communicated to the Department’s Employee Relations Manager. The matter was subsequently set down for 2 October 2026.
5. Having considered the available information regarding service of the set-down notice, I was satisfied that the Respondent had been afforded proper notice of the proceedings. The arbitration therefore proceeded in the Respondent’s absence in accordance with section 138 of the LRA and the applicable ELRC Rules.
6. The proceedings were conducted in English and digitally recorded.
   BACKGROUND
7. The Applicant is employed by the Respondent as an educator at Kakamas High School.
8. The Applicant was placed on precautionary suspension with effect from 2 June 2026. At the time of the arbitration, on 2 October 2026, she remained on suspension.
9. The suspension letter was issued by Mr G. G. March of the ZF Mgcawu District.
10. The Applicant seeks an order directing the Respondent to uplift her suspension and permit her to resume her normal duties. Her contention is that the suspension has exceeded the three-month period contemplated in Schedule 2 of the Employment of Educators Act 76 of 1998 (“the EEA”).
    ISSUE TO BE DECIDED
11. I am required to determine whether the Respondent committed an unfair labour practice by keeping the Applicant on precautionary suspension beyond the prescribed period and, if so, to determine the appropriate relief.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s case
12. The Applicant was represented by Mr H. Breytenbach, who testified under oath on her behalf.
13. Mr Breytenbach submitted that the Applicant’s suspension was unlawful because the Respondent had failed to comply with the applicable provisions of the EEA governing the suspension of educators.
14. He referred specifically to item 6(1) of Schedule 2 to the EEA, which provides that, in cases of serious misconduct contemplated in section 17 of the EEA, an employer may suspend an educator on full pay for a maximum period of three months.
15. He submitted that the Applicant was suspended with effect from 2 June 2026 and that, by the date of the arbitration, the suspension had exceeded the prescribed three-month period. He accordingly requested that the suspension be uplifted and that the Applicant be permitted to return to work.
Respondent’s case
16. The Respondent did not attend the proceedings and did not present any evidence or submissions to oppose the Applicant’s case.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. Section 138(7) of the LRA requires a commissioner to issue an arbitration award with brief reasons. I have considered the evidence presented by the Applicant, the submissions made on her behalf and the applicable legal framework. I refer only to those aspects that are necessary for the determination of this dispute.
18. Section 186(2)(b) of the LRA defines an unfair labour practice to include an unfair act or omission that arises between an employer and an employee involving the unfair suspension of an employee or any other unfair disciplinary action short of dismissal.
19. The relevant provisions governing the suspension of educators are contained in Schedule 2 to the EEA, which sets out the Disciplinary Code and Procedures for Educators.
20. Item 6(1) of Schedule 2 provides that, in cases of serious misconduct contemplated in section 17 of the EEA, an employer may suspend an educator on full pay for a maximum period of three months. Item 6(3) further regulates the timeframes for concluding disciplinary proceedings following suspension and provides for steps to be taken where the proceedings are not concluded within the prescribed period.
21. The evidence before me establishes that the Applicant was suspended with effect from 2 June 2026 and remained on suspension at the time of the arbitration on 2 October 2026. The suspension had therefore continued for approximately four months.
22. The Applicant’s evidence that the suspension had exceeded three months was not contradicted, as the Respondent failed to attend the proceedings or present evidence to the contrary. Nevertheless, the Respondent’s absence does not automatically entitle the Applicant to the relief sought. I must still determine whether the evidence establishes, on a balance of probabilities, that the suspension constitutes an unfair labour practice.
23. In considering the applicable legal framework, I note that item 6(1) of Schedule 2 to the EEA prescribes a maximum three-month period for suspension on full pay in cases of serious misconduct contemplated in section 17. Item 6(3) further requires the employer to take steps to conclude disciplinary proceedings promptly and regulates the consequences of delays beyond the prescribed period.
24. In the present matter, the Applicant’s suspension had exceeded three months by the date of the arbitration. The Respondent did not appear to explain the continued suspension, demonstrate compliance with the applicable requirements, or provide any justification for keeping the Applicant away from her normal duties for that extended period.
25. In the absence of evidence explaining or justifying the continued suspension, I find that the Respondent has failed to establish a basis for maintaining the Applicant’s precautionary suspension beyond the prescribed period. The continued suspension, in these circumstances, is inconsistent with the requirement that disciplinary measures be administered promptly and fairly.
26. I accordingly find, on a balance of probabilities, that the Applicant has established that the Respondent committed an unfair labour practice in relation to her suspension, as contemplated in section 186(2)(b) of the LRA.
RELIEF
27. In determining the appropriate relief, I have considered the nature of the unfair labour practice, the period for which the Applicant has remained on suspension and the relief sought.
28. The Applicant seeks the upliftment of her suspension and permission to resume her normal duties. In the circumstances, I consider this relief appropriate. The Respondent has not presented evidence establishing a sufficient basis for continuing the suspension.
29. I therefore consider it fair and reasonable to direct the Respondent to uplift the Applicant’s suspension and allow her to resume her duties in her substantive position.

AWARD
30. I find that the Respondent committed an unfair labour practice in relation to the Applicant’s suspension, as contemplated in section 186(2)(b) of the LRA.
31. The Respondent is ordered to uplift the precautionary suspension of Ms Anthea Kotze with effect from 19 October 2026.
32. The Respondent is further ordered to permit the Applicant to resume her normal duties as an educator at Kakamas High School on 19 October 2026.
33. There is no order as to costs.

Thabo Maruping
ELRC Arbitrator