ARBITRATION AWARD

Case Number: ELRC715-25/26NC
Commissioner: SM. Beesnaar
Date of Award: 21 April 2026

In the ARBITRATION between

PSA obo Titus, Leonard
(Union/Applicant)

And

Department of Education – Northern Cape
(Respondent)

Union/Applicant’s representative: Mr. Eugene Louw –PSA (Union Rep)
Union/Applicant’s address:

Telephone: 076 289 2846
Telefax:
E-mail: eugene.louw@psa.gov.za

Respondent’s representative: Ms. Lulama Tutani-Jara – Labour Relations Officer
Respondent’s address:

Telephone: 081 847 2501
Telefax:
E-mail: lulamatj@gmail.com

PARTICULARS OF THE HEARING AND REPRESENTATION

1. This is the award in the arbitration matter between PSA on behalf of Leonard Titus, the Applicant and the Department of Education – NC Provincial Administration, the Respondent.
2. The referral is in terms section 186(2)(b) of the labour Relations Act, 66 of 1995 as amended (herein referred to as “the LRA”) and the award is issued in terms of section 138(7) of the LRA.
3. The arbitration was scheduled on 13 November 2025 virtually, 12 and 13 February 2026, 23 March 2026 and concluded on 24 March 2026 at Upington.
4. The Applicant was present and he was represented by Mr Eugene Louw from PSA in his capacity as Union Representative (Union Rep). The Respondent was represented by Ms. Lulama Tutani-Jara in her capacity as a Labour Relations Practitioner.
5. The parties prepared and submitted into evidence bundles of documents which were accepted as what they purported to be. The Applicant’s bundle is referred herein after as Annexures “A, B and C”. The Respondent’s bundle is Annexure “D1-7”.
6. The proceedings were conducted in English and were manually and digitally recorded.

ISSUE TO BE DECIDED

7. It must be determined whether the suspension of the Applicant pending the finalisation of the disciplinary enquiry is an unfair labour practice as envisaged in section 186(2)(b) of the LRA.
8. Further whether the Respondent must be ordered to compensate the Applicant for the alleged unfair labour practice perpetuated against him. BACKGROUND TO THE DISPUTE
9. The Applicant is employed as an Educator – Post level 1 since 2021. He earns R 34 258.75 per month. He works at Marcus Mbetha Secure Care Centre. It is common cause that the Centre falls under the Department of Social Development, where minors and learners are held.
10. Following allegations of sexual harassment/assault he was placed on precautionary suspension effective from 27 November 2024 while the investigation was underway.
11. The enquiry was scheduled on 20-21 May 2025. On the said date the enquiry was postponed. The disciplinary enquiry yet to be finalised. The Applicant’s suspension was uplifted on 11 June 2025. Nonetheless he was prevented from entering the work place and was placed on special leave.
12. Aggrieved by the conduct of the Respondent in putting him on special leave, he approached his Union (PSA) for assistance. An unfair labour practice dispute was referred to the Council for conciliation on 22 September 2025.
13. Conciliation was scheduled on 14 October 2025 but failed to resolve the dispute. The Applicant/Union then requested that the matter be resolved through arbitration. The relief sought is that the suspension should be uplifted to allow him to return to work. Further that he must be compensated for the unfair conduct of the Respondent.

SUMMARY EVIDENCE AND ARGUMENT
Applicant’s evidence –

14. Mr Leonard Titus stated that he is an Educator, post level 1 at a Special School at Upington. He started on 27 July 2021. He was put on precautionary suspension on 27 November 2024 pending the disciplinary enquiry on allegations of serious acts of misconduct relating to sexual harassment (see A17).
15. He intimated that the school is situated at the Marcus Mbethe Secure Care Centre which is under the Department of Social Development. He was not told how long the suspension would be. On 22 May 2025 the disciplinary charges were withdrawn against him. He understood that to mean he must return to work (see A16).
16. His precautionary suspension was also uplifted on 30 May 2025 and he was required to return to work on 11 June 2025 (see A15 – UPLIFTING OF PRECAUTIONARY SUSPENSION FROM DUTY). He was happy that he was now going back to work. When he arrived on 11 June 2025 at his work place, he was stopped by the School Principal from entering the school premises as well as the Security Guard.
17. He was advised to go to Ms. Tutani-Jara at the District Office. Ms Tutani-Jara informed him that the officials from the Department of Social Development directed that he should not be allowed at the school premises. He was then placed on special leave. He requested to be provided with the Department of Social Development’s complaint in writing but that did not happen. He filed a grievance because he felt it was unfair and that affected him psychologically. He informed his union for assistance in that regard.
18. He did not hear anything thereafter from the Respondent. The issue of special leave was discussed on 11 June 2025 and nothing happened since then until 5 August 2025. He submitted that for that period he suffered prejudice, especially with regard to his reputation as a Church Leader. He had lot of stress and his physical health deteriorated. The Respondent also refused to consider an alternative to precautionary suspension like perhaps a transfer to another school. His disciplinary enquiry has not been concluded to date.

Respondent’s evidence –

19. Mr. Barry Mathupi is the Acting Manager – Corporate Services. He submitted that there were allegations of a serious nature levelled against the Applicant. It was alleged that the Applicant sexually harassed another employee at the work place. The Respondent took a decision to put him on precautionary suspension pending the enquiry.
20. The suspension was with effect from 27 November 2024. That was later uplifted and the Respondent took a decision to put him on special leave because the disciplinary enquiry was not finalised within the prescribed 90 days. He maintained that his suspension and special leave were with full emolument of salary. He saw no prejudice suffered by the Applicant.
21. That decision was taken due to the seriousness of the allegations against the Applicant. Under cross examination, he could not say how long was the Applicant suspended. He intimated that it could have been 479 days. Further that the Applicant has been home for 389 days. He confirmed that the disciplinary charges against him were provisionally withdrawn.
22. Based on the new information that surfaced, the decision was taken to place him on special leave. His conceded that the Applicant was suspended from 24 November 2024 to 11 June 2025 which is around 197 days.
23. He maintained that 90 days was the maximum period allowed for precautionary suspension. Further that PAM allows for special leave on extra ordinary circumstances. The Applicant was placed on special leave from 13 August 2025 to date. He could not account for what happened in the period from 11 June 2025 to 13 August 2025.

ANALYSIS OF EVIDENCE AND ARGUMENT

24. This is a referral in terms of section 186 (2) (b) of the LRA. In determining the dispute between the parties, I considered the provisions of the LRA and other relevant prescripts and arrived at the decision here after.
25. The LRA entitles employees to institute action against an employer for what is termed ‘unfair labour practice’ in terms of section 186 thereof. Section 185 of the LRA states that “every employee has the right not to be (b) subjected to unfair labour practice”.
26. Section 186(2) provides that;
    ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –

(b). unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.

27. Generally, a suspension pending a disciplinary enquiry is effected at the instance of an employer. It must be borne in mind that precautionary suspension is not punitive and has the safeguard that it may not be extended indefinitely. I observed that it is a settled matter that fairness requires the following before suspension 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 a 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 factor that would place the investigation or the interests of the affected parties in jeopardy.
28. It is common cause that the Applicant was suspended from 24 November 2024 on allegations of serious misconduct. It was alleged that he sexually harassed a fellow employee at the work. The disciplinary enquiry has not been concluded to date. The only explanation offered for this disciplinary anomaly is that the Chairperson recused him/her from the proceedings. I noted that on 30 May 2025 the suspension was uplifted and the Applicant was directed to report on duty on 11 June 2025 after the disciplinary charges against the Applicant were withdrawn.
29. Then all of a sudden, he was placed on special leave, the reason being that as per Mr. Mathupa, new evidence had surfaced. While new evidence surfaced, he does not say why there are no attempts to expedite the disciplinary process other than saying that according PAM, the Applicant may be placed on special leave under extra ordinary circumstances.
30. Essentially the suspension was almost eight (8) months. I am of the view that is unfair without any explanation for this abnormality in the disciplinary process from the Respondent. To rub salt into the wound, the Applicant was placed on special leave on 12 June 2025 to date due to the failure on the part of the Respondent to conclude the enquiry.
31. While according to the Respondent, the allegations are of a serious nature, I fail to understand as to why the Respondent could not consider precautionary transfer as an alternative, provided for in the code. In Mogothle v Premier of the North West Province & another [2009] 4 BLLR 331 (LC) the Labour Court noted that the suspension of an employee pending an inquiry into alleged misconduct is equivalent to an arrest and should therefore be used only when there is a reasonable apprehension that the employee will interfere with investigations or pose some other threat.
32. The failure on the part of the Respondent to expeditiously finalise the disciplinary enquiry against the Applicant makes this suspension in my view unfair and has a detrimental impact on him and may prejudice his reputation, advancement, job security and fulfilment. Suspensions must therefore be based on substantive reasons and fair procedures must be followed. That’s not what happened in the circumstances.
33. Having regard to the full conspectus of all relevant facts and circumstances of the matter, I make the award hereafter –

REMEDY

34. The relief sought by the Union on behalf of the Applicant is that the Respondent be ordered to seek alternative placement for the Applicant and compensation for the unfair suspension. I see no reason as to why the relief sought should not be granted.
35. In the circumstances, I find it fair and just to award the Applicant the relief sought after he proved on the preponderance of probabilities that his suspension was both substantively and procedurally unfair.

AWARD

36. The Respondent, Department of Education – Northern Cape Provincial Administration, is ordered to seek alternative placement for the Applicant pending the finalisation of his disciplinary enquiry.

37. I further make an order that the Respondent must pay the Applicant compensation equivalent to two (2) months’ compensation, i.e. R 34 258.75 x 2 = R 68 517.50 (Sixty-eight thousand, five hundred and seventeen rand and fifty cents).

38. The amount stated in paragraph 38 above must be directly paid into the Applicant’s bank account known to the Respondent on or before, 15 May 2026.

39. If an arbitration award orders a party to pay a sum of money, the amount earns
interest from the date of the award at the same rate as the rate prescribed from time to
time in respect of a judgment debt in terms of section 2 of the Prescribed Rate of
Interest Act, 1975 (Act No. 55 of 1975), unless the award provides otherwise.

Name: SM. Beesnaar
(ELRC) Arbitrator