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17 June 2025 2025 -ELRC29-25/26NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN MAHIKENG

Case No: ELRC29-25/26NW

In the matter between

NTABISENG NTEBELE TLADI Applicant

and

VUSELELA TVET COLLEGE Respondent

PANELLIST: Pieter Greyling
AWARD: 13 JUNE 2025

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

  1. The matter was set down for arbitration on 02 June 2025. The proceedings were conducted on a virtual platform. The Applicant was represented by Mr JP Nieuwoudt, an attorney. The Respondent was represented by Mr K Sechoaro, an official.
    ISSUE TO BE DECIDED
  2. It is to be decided whether the imposition of a sanction of a suspension for a period of two months without pay, instituted at the conclusion of a disciplinary enquiry and imposed on 24 February 2025, constitutes an unfair labour practice as envisaged in terms of Section 186(2)(b) of the Labour Relations Act (LRA).
  3. The Respondent presented a bundle of documents (Bundle R), consisting of 15 pages to be used during the proceedings.

BACKGROUND TO THE DISPUTE

  1. The Applicant started her employment with the Respondent in February 2018 as a lecturer and receives is a monthly salary of R29,000.00.

EVIDENCE AND ARGUMENTS BY THE PARTIES
Evidence by the Applicant

  1. The Applicant, Mr Ntabiseng Ntebele Tladi testified on her own behalf. The following can be highlighted from her testimony:

5.1 The Applicant stated that she was charged for acting in a disgraceful manner when she approached a fellow employee, Ms Dhlamini and enquired why she has removed the Applicant from the trade union’s WhatsApp group. Dhlamini responded by saying and pointing her finger at the Applicant, that she is not answerable to the Applicant. The Applicant further explained that she had two cellphones in her left hand and in the other hand was a document that was handed to her at a meeting that she attended just before the incident.

5.2 She further stated that she used her right hand to block finger pointing at her face. She further stated that Dhlamini raised her voice when she stated that she was not answerable to the Applicant. As she blocked her hand, the Applicant repeated her question, stating that she was still a paying member of SADTU. At that point in time, a senior lecturer, Mr Mokhaleng approached them and cautioned them to be quiet as students were watching them. The Head of the Department, Mr Letshabo instructed the Applicant and Dhlamini to deal with the dispute inside the building, out of sight of the students. The Applicant went into the building but Dhlamini however, did not follow her. She remained outside and started to talk to other staff members.

5.3 Under cross-examination, it was put to the Applicant that in the disciplinary enquiry, evidence was presented that, according to Letshabo, the Applicant started the incident. It was stated that the Applicant during the altercation raised her hands. The Applicant responded by stating that she used her hands to block the finger of Dhlamini.

Evidence by the Respondent

  1. The industrial relations officer, Mr K Sechoaro testified on behalf of the Respondent. The following can be highlighted from his testimony:

6.1 The witness referred to Bundle R, p13 to p14, which reflects the presiding officer’s summary of the disciplinary proceedings and finding. The hearing was held on 15 November 2024 and the witness confirmed that he received the outcome i.e. the sanction, on 26 February 2025. The chairperson concluded that the Applicant’s conduct was unacceptable. The Applicant was advised that she could file an appeal within five days from receiving the outcome of the proceedings.

6.2 The witness further referred to page 15 of Bundle R, which reflects an e-mail from the Applicant addressed to the witness, dated 05 March 2025. In this particular message, the Applicant informed him that she accepts the sanction and penalty emanating from the disciplinary enquiry. The Applicant made the proposal that the first month without pay be May 2025 and the second month, July 2025. She further explained that she has financial obligations and that she would be severely prejudiced if she is was not paid for two consecutive months.

6.3 The witness further stated that he responded to the e-mail on 18 March 2025, informing the Applicant that he had forwarded the request to the Head Office, that informed him that no such exception can be made and that she will not receive her salary for two consecutive months.

Submissions by the Parties

  1. The parties were allowed the opportunity to submit written heads of argument by no later than 09 June 2025. Only the Applicant submitted heads of argument.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. The Applicant referred a unfair labour practice dispute emanating from a disciplinary enquiry held on 15 November 2024. The allegations of misconduct emanated from an altercation between the Applicant and Ms Dhlamini. A sanction of two months suspension without pay was imposed on the Applicant. In preparation for the arbitration, the parties held a pre-arbitration conference and submitted the minutes signed by both parties (Bundle R, p10 to p13). The minutes reflects that the Applicant, as relief seeks the suspension to be overturned as it is disproportionate to the transgression. The document further reflects that procedural fairness is not in dispute, but with regard to substantively fairness, it is submitted that the rules were not applied consistently. It is argued that Dhlamini participated in the altercation and that she should also have been disciplined.
  2. The onus rests with the Applicant to prove on a balance of probabilities that the conclusion reached at the enquiry and/or the sanction imposed, was unfair. The evidence that the Applicant presented reflects that she enquired from Dhlamini why her name was removed from the union’s WhatsApp group. Dhlamini became aggressive and pointed her finger towards the Applicant, indicating that she was not answerable to the Applicant. The Applicant then used one hand to deflect the finger pointed at her. From her testimony, it is evident that the two individuals were so close to one another that they could touch each other. It is further evident that this altercation came to the attention of the students nearby, which nessitated a senior staff member to interrupt the altercation and ordered them to continue with their quarrel inside the building where the students could not see them.
  3. This evidence was not challenged by the Respondent. The Respondent did not call Dhlamini or the other two officials to testify. Instead, the witness for the Respondent relied on the e-mail of the Applicant in which she indicated a willingness to accept the outcome and the sanction. The e-mail however, does not reflect the Applicant’s agreement with the factual conclusion of the presiding officer. It merely indicates that the Applicant is willing to accept the outcome. It is evident from the email message that it was written to make a proposal as to how the sanction was to be imposed, which proposal was rejected. As far as the facts are concerned, only one version was presented and from this evidence it is clear that Dhlamini participated in the altercation.
  4. It is expected of an employers to apply workplace rules consistently. It is unfair to treat people who have committed a similar misconduct, differently. Our courts have distinguished between historical inconsistency and contemporaneous inconsistency. Historical inconsistency occurs when an employer has in the past, as a matter of practice, not dismissed employees or imposed a specific sanction for contravention of a specific disciplinary rule. In such cases, unfairness flows from the employee’s state of mind. The employees in question were unaware that they will be dismissed for the transgression in question. Contemporaneous inconsistency occurs when two or more employees engaged in the same or similar conduct at roughly the same time, but only one or some of them are disciplined, or where different penalties are imposed. As an example see Cape Wrappers (Pty) Ltd v Scheepers and another [2002] 8 BLLR 729 (LC).
  5. The Applicant raised the issue of inconsistency during the pre-arbitration proceedings and it is reflected in the minutes of the pre-arbitration conference. The issue was again raised during opening statements. Once the employee pertinently put the issue of consistent treatment in issue, the employer has a duty to rebut such allegations. In this particular instance, the overall onus rests with Applicant. The Applicant must therefore lay a factual basis to establish the inconsistency. The Respondent is then to rebut the allegation (see: SAPS v SSSBC and others (2011) 32. ILJ 715 (LC)).
  6. In this particular matter, the Respondent did not present any evidence that could contradict the evidence of the Applicant that it was Dhlamini who acted aggressively when the Applicant enquired as to why her name was removed from the WhatsApp list. The Respondent was therefore unable to offer an explanation for the fact that no disciplinary steps were taken against Dhlamini.
  7. . I was advised by the parties that, at the time of these proceedings, the sanction has not been imposed.

AWARD

  1. In view of the considerations as set out above, and in the absence of evidence to the contrary, I must conclude that the action of the Respondent to take disciplinary action against the Applicant only constitutes an unfair labour practice as envisaged terms of Section 186(2)(b) of the Labour Relations Act
  2. It is therefore ordered that the sanction of two months’ suspension without pay be set aside.
  3. I make no order as to costs.

Signature:

Panelist: PIETER GREYLING
Sector: Education Department of North West