IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MOUNT FRERE
IN THE ARBITRATION
BETWEEN
PHUMEZA MATAKA APPLICANT
AND
DEPARTMENT OF EDUCATION – EC RESPONDENT

ARBITRATION AWARD

DATE/S OF HEARING 19/05/2023, 21/06/2023, 20/09/2023 & 22/11/2023
DATE AWARD SUBMITTED 11/12/2023
NAME OF PANELIST SIZIWE GCAYI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (“LRA”) at the Department of Education offices in Mount Frere on 21 June 2023, 20 September 2023 and 22 November 2023 at 09h00. Mr B Mataka an attorney represented Applicant [P Mataka], Mr L Magubeni an official, represented the Respondent, (Department of Education Eastern-Cape). On 19 May 2023 the matter was conducted virtually.

2. The proceedings were electronically recorded and manually recorded. The parties handed in bundle of documents in support of their cases. The Applicants bundle was named bundle 1. Respondent’s bundle named bundle 2. The parties were given up until 4th of December 2023 to submit their closing arguments to the Council.

ISSUES TO BE DECIDED

3. I am required to determine whether an unfair labour practice relating to suspension was committed by the Respondent. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE
4. This is an unfair labour practice dispute relating to suspension as alleged by the Applicant.

5. The Applicant is an employee of the Respondent. She has been in the employment of the Respondent since January 2008. She is an educator at Jojo Senior Secondary School.

6. The Applicant alleged that in the month of February 2023 she was unfairly suspended by the Respondent. The relief sought by Applicant is reinstatement at Jojo SSS and compensation.

SURVEY OF EVIDENCE
Employee’s case
7. The Applicant testified herself and called two witness in support of her case. In summary, the Applicant testified as follows: She was a temporary educator at Jojo SSS since August 2020. She was displaced from Mount Ayliff SSS. She testified about her qualifications. She also mentioned that on 26 July 2022 she submitted her forms to Ms Bashe requesting to be converted to permanent. On 28 July 2022 she submitted the forms at the Circuit office to be signed by Mr Spencer. She was advised by Mr Spencer to first sign the transfer forms; conversion follows after transfer. HR advised her differently that it was conversion first and transfer follows after conversion. She also mentioned an incident that occurred early February 2023 about a learner who disrupted the class. She mentioned that a meeting was convened at the principal’s office, attended by the school principal, School Governing Body [SGB] and the learner, matter was discussed and resolved. On 16 February 2023 she was advised of the compliant against her by the school principal. The complaint was from the SGB. On 17 February 2023 Mr Jojo informed her that Mr Gwayi requested to see her. On 20 February 2023 she proceeded to Mr Gwayi’s office. Mr Gwayi denied calling her. She went back to the school and was advised to go and see Mr Spencer. On 21 February 2023 she went to see Mr Spencer and could not find him. Mr Spencer attended a meeting at Jojo SSS. She contacted Mr Spencer, who instructed her to wait at home, he will contact her. It was her evidence that her post was still vacant. She maintained that she was suspended. Displacement was an afterthought.

8. Ms Phaphama Bashe [“Bashe”] testified as follows: She started working for the Respondent in 2014. In April 2015 she was permanently employed by the Respondent. The Applicant was known to her. On 22 July 2022 Applicant submitted forms for salary adjustment. She mentioned that her duties included adjusting salaries, however conversion was done in another desk. Applicant was sent to Ms Nqwaba for conversion. She further mentioned that she was informed by Ms Nqwaba that the Applicant’s documents were incomplete, still awaiting outstanding documents from the Applicant.

9. Ms Nonceba Willard [“Willard”] testified as follows: She knew the Applicant. They meet when they submitted qualifications at HR. The Applicant submitted the forms. Ms Nobantu informed her that she did not want to be part of the Applicant’s documents. Mr Gwayi contacted her about the Applicants forms. It was her testimony that she meet with Mr Gwayi, and she was advised by Mr Gwayi that Applicant refused to sign the forms. She was also advised by the Applicant that all was in order for her conversion.

Respondent’s Case
10. The Respondent led evidence of two witnesses. Their evidence is summarised below. Mr Zwelidumile Gwayi [ “Gwayi”] testified as follows: He was employed by the Respondent as Circuit manager of Mount Ayliff, covering the areas of Simakameka circuit and Ntsizwa circuit. The Applicant was known to him. They meet with the Applicant in February 2023 and also in March 2023. He referred the Applicant to Mr Spencer. On 1 March 2023 he had a discussion with Mr Adams about the Applicant. Arrangement was done for the Applicant to be placed at a school. The Applicant never availed herself. Mr Spencer was instructed to investigate the issue of the Applicant at Jojo SSS. The school principal wrote a letter, Bundle 2B. He also testified about the two types of suspension. He maintained that the Applicant was not suspended but displaced. In August 2022 he prepared the transfer forms for the Applicant. In June 2023 there were discussions between him and Mr Mabinda from NAPTOSA to facilitate the conversion of the Applicant. Mr Mabinda promised to submit the forms. No forms were received from Mr Mabinda. On 11 August 2023 he contacted the Applicant tracing her whereabouts, Applicant referred him to his representative. On 16 October 2023 he contacted Applicant to choose a school, Applicant did not avail herself. Applicant never came to his office in order to be placed at a school.

11. Mr Chuma Mqedlana [“Mqedlana”] testified as follows: He was employed by the Respondent since 1992 as an educator. Currently he was a Human Resource Manager at Alfred Ndzo. The Applicant was known to him as one of the educators. She was a protected temporary educator. He also testified about the difference between protected temporary educators, temporary educators [substitute post] and permanent educators. He also testified about the salaries of the educators, SACE documents, and conversion documents. In July 2022 Applicant approached his office for salary adjustment. The Applicant was also referred to the conversion desk. He had no knowledge that the Applicant was on suspension.

ANALYSIS OF EVIDENCE AND ARGUMENT
12. 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 have 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.

13. Section 186(2)(a) 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”.

14. Section 186[2][b] of the LRA provides as follows” the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.

15. I have to decide whether the Respondent acted fairly or not is suspending the Applicant.

16. Suspension maybe of two kinds. An employee maybe suspended as a holding operation pending disciplinary hearing or alternatively it maybe a disciplinary sanction. The first type of suspension is not punitive in its self. Preventative suspension is acceptable provided that the Employer bona fide believes that such action is necessary for a good administration and the Employer continues to pay the Employee. [Workplace law by John Grogan pg 103]

17. In the present matter the Applicant was placed on preventive or precautionary suspension. In these proceedings onus is on the Applicant. As mentioned above Applicant testified and called two witnesses in support of her case. Their evidence has been summarised above it will not be repeated. Reference will be made where necessary. It was the evidence of the Applicant that she was a displaced educator from Mount Ayliff SSS to Jojo SSS, as from August 2020. It was also the Applicant’s evidence that on 16 February 2023 she was advised by the school principal Mr Jojo of the complainant against her by the SGB. The evidence of both Bashe and Willard made no mention of unfair suspension. I am not sure how they assisted the Applicant’s case. I am not sure why they were called. The dispute before the Council is that of unfair labour practice relating to suspension.

18. On the side of the Respondent two witnesses were called. I will start with the evidence of the 2nd witness Mqedlana. I am not certain what the Respondent intended to achieve by calling this witness. Firstly, Respondent disputes that the Applicant was placed on precautionary suspension. It was Mqedlana’s evidence that he had no knowledge of the Applicant’s suspension. Mqedlana’s evidence was more on the status of the educators. I don’t know why he was called. There were other people that could have been called by the Respondent like Mr Jojo, Mr Spencer. Turning to the evidence of Gwayi, he maintained that the Applicant was not suspended but a displaced educator. Jurisdictional ruling was issued by the Council which made it clear that the Applicant was on precautionary suspension. Furthermore, the Respondents own bundle pg 2B 1st paragraph made it clear that the Applicant was on suspension. I reject his evidence that the Applicant was a displaced educator. The other part of his evidence was about conversion and transfer of educators. Unfortunately, that evidence was not relevant for purposes of the dispute before the Council.

19. The question that needs to be answered is whether the conduct of the Respondent towards the Applicant has amounted to unfair labour practice relating to suspension?

20. In POPCRU obo Masemolo & others v Minister of Correctional Services [2010] 31 ILJ 412 [LC] the Court held, relying on Mogothle v Premier of the Northwest Province & others [2009] ILJ 605 [LC] that : Fairness requires the following before suspending an employee pending an investigation or disciplinary action [a] first that the Employer has a justifiable reason to believe, prima facie at least, that the Employee has engaged in serious misconduct, [b] secondly that there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of pending investigation into the alleged misconduct or some other relevant actors that would place the investigation or interests of the affected parties in jeopardy and [ c] thirdly and lastly, the Employee is given an opportunity to state a case before the Employer makes a final decision to suspend the Employee.”

21. In the current matter there is no evidence placed before me that the Applicant was afforded an opportunity to state her case before the Respondent made a final decision to suspend her. However, it must be noted that it is not always the requirement. In “Long v SAB [PTY] LTD & others [CCT 61/18] handed down on 19 February 2019. The Employee was placed on a suspension pending disciplinary hearing. The suspension was to ensure that the investigation was unhindered. In determining whether the suspension was permissible, the Court held that the fairness of the precautionary suspension is determined by first assessing whether there is a fair reason for suspension, secondly whether it prejudices the Employee. The Court further held that where the suspension is precautionary and not disciplinary action, the requirements relating to fair disciplinary action under the LRA finds no application. Therefore, there is no requirement to afford the Employee an opportunity to make representations before the precautionary suspension is effected”. All throughout her evidence, the Applicant has failed to demonstrate unfairness of her suspension even with the witnesses that she called. No substantiated evidence on the prejudice she claimed she suffered.

22. Based on the evidence before me, and on what I have highlighted above, I am not convinced by the Applicant’s evidence. I find that the Applicant failed to discharged the onus placed on it, on the balance of probabilities that the conduct of the Respondent amounted to unfair labour practice relating to suspension as contemplated in section 186 [2] [b] of the LRA 66 of 1995 as amended.

23. In relation to the issue of the employment status of the Applicant, from protected temporary educator to permanent educator, I have no powers to appoint, those powers vest with the Employer. Secondly that was not the dispute before the Council, if the Applicant intends bringing another dispute before the Council it is with in her right to do so.
AWARD
24. There was no unfair labour practice committed by the Respondent. The Applicant is not entitled to any relief.
Signature:

Commissioner: Siziwe Gcayi
Sector: Basic Education