Case Number: ELRC750-24/25GP
Commissioner: Leanne Alexander
Date of Award: 19 May 2025

In the ARBITRATION between:
PSA obo Mokasi, Eric
(Applicant)
And
Gauteng Department of Education (GDE)
(Respondent)
And
Applicant’s representative:
Applicant’s address:
Telephone:
Telefax:
Email:
Respondent’s representative:
Respondent’s address:
Telephone:
Telefax:
Email:

Details of hearing and representation

1. The arbitration took place on 11 March 2025 at Gauteng East District Office at 5th Avenue, Springs. On the 7 May 2025, the arbitration proceedings took place as agreed to by the parties virtually via MS Teams.
2. Mr Henry Hall, a Union Official, represented the Applicant. The Applicant, Mr Eric Mokasi, was also present in the proceedings.
3. Ms Nombeko Manda, represented the Respondent.
4. The proceedings were conducted in English.
5. The Applicant referred an unfair labour practice dispute in terms of Section 186(2)(b) of the Labour Relations Act, Act 66 of 1995 (“LRA”).
6. The matter, thereafter, was set down for arbitration proceedings on the above said dates.
7. In terms of Section 138(7) of the “LRA” “within 14 days of the conclusion of the arbitration proceedings the commissioner must issue an arbitration award with brief reasons”.
8. The matter followed an inquisitorial approach.
9. The hearing was digitally recorded, and manual notes were also taken.
10. I must place on record that both parties agreed to submit their closing arguments in writing by close of business on 14 May 2025. Both of the submissions were duly received and considered.

The issue’s to be decided

11. I have to determine whether the Applicant was subjected to an unfair labour practice in terms of Section 186(2)(b) of the LRA in relation to a suspension (precautionary transfer). In the event that I find in his favour, the Applicant sought for the precautionary suspended to be lifted and to return to Modder East High School, furthermore he sought compensation.

The background to the dispute

12. It was common cause that the Applicant was employed as an Educator (Modder East High School) since 15 January 2020.
13. The Applicant was still in the Respondent’s employ.
14. The Applicant worked a 5-day week, at an average of 7 hours per day.
15. The Applicant earned a monthly salary of R27, 802-00.
16. The Applicant sought for the precautionary transfer to be uplifted and compensation for the alleged unfair labour practice.
17. The issues in dispute was whether or not the Applicant’s precautionary transfer was fair and the duration of the precautionary transfer (outside of the 3 (three) months’ timeframe).

Summary of evidence and argument
The testimony led by the witnesses is fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.
Applicant’s case
Mr Eric Mokasi

18. The Applicant testified under oath that he was employed as a PL1 Educator (Modder East High School).
19. The essence of the witness testimony inter alia was that on 7 June 2024, he was served and informed that the Respondent would invoke disciplinary action against him, which he had to respond to within 72 (seventy-two) hours. He responded on 10 June 2024.
20. He submitted documentary evidence of a “precautionary transfer” letter dated 3 June 2024.
21. There had been no communication from the Respondent until he lodged the complaint at the Education Labour Relations Council (“ELRC”).
22. He submitted documentary evidence of the “Employment of Educators Act, Act 76 of 1998” where it was submitted that “…the employer may suspend the educator on full pay for a maximum period of three months”.
23. He had been suspended from June 2024 until March 2025 (which equated to 10 (ten) months). The Respondent had not contacted him within the 10 (ten) month period.
24. His disciplinary hearing did not take place within 1 (one) month, and it was not before a presiding officer within 10 (ten) months, thus it exceeded the 90 (ninety) days as per the Act.
25. He only received the notice of extension on 10 March 2025.
26. He submitted documentary evidence of “Circular No: 2 of 2025 – Management of precautionary suspensions”.
27. He referred his dispute to the ELRC on 5 November 2024, since then there had been no communication from the Respondent until 10 March 2025.
28. He sought compensation and he felt that the Respondent had no consideration for his matter and his matter should have been dealt with within a reasonable time period. This caused him sleepless nights, he had been in hospital a number of times and he was currently in the process of divorce proceedings with his wife.
    Cross-examination {During cross-examination only significant versions or confessions are recorded}
29. The Applicant explained that his dispute arose on 1 November 2024, as per his referral form. He received the invoke letter on 7 June 2024, from Ms Tsakane Nkuna. He was then placed at the District Office in Gauteng.
30. The Applicant explained that school closed on 14 June 2024, and he returned to the District Office on 9 July 2024.
31. The Applicant explained that he was precautionary transferred with pay.
32. It was put to the Applicant that the witness would testify that delay was due to the official dealing with the matter resigned, hence the whole process started afresh.
33. The Applicant did not respond to this statement.
34. It was put to the Applicant that he sought compensation, yet he did not suffer any financial loss during his precautionary transfer.
35. The Applicant disputed this statement and submitted that previously he resided 3 (three) minutes from the school, at the District Office he had a lot of issues with transport. However, he did not report that to the Respondent.
    Re-examination
36. During re-examination, the Applicant explained that in the Act, it did not speak about the closures of schools for holiday periods, such that the matter could be postponed.
37. During re-examination, the Applicant explained that the Respondent provided excuses and the fact that they changed the investigator, it had nothing to do with him.
38. During re-examination, the Applicant explained that he suffered financial loss going to the garage for petrol, and the matter should have been completed within a reasonable time period.

Respondent’s case
Mr Sehlare Seshibi

39. The witness testified under oath that he was employed DCES (Labour Relations)
40. The essence of the witness testimony inter alia was that he managed labour relations matters including misconduct, grievances and conducting arbitrations.
41. The allegations were serious, the matter was of public interest and the matter involved several stakeholders. They could not take the risk and take the Applicant back to the institution. There were 3 (three) learners involved, and as such the matter was complex. It was difficult to get to the learners; hence it took time to conclude.
42. The Applicant was getting paid and if they took the Applicant back to the school, he questioned how the learners would feel.
43. He submitted documentary evidence of the “report” received from Modder East High School.
44. The case was then allocated to Ms Nkuna to investigate which was given to her on 17 May 2024. Thereafter it was the June/July holidays. Ms Nkuna subsequently resigned on 31 August 2024. The case had to be re-allocated, which then only started at the beginning of September 2024.
45. They needed to obtain consent forms, which at times caused a delay. They could not interview the learners until they received the consent forms.
46. After the investigation was concluded, it compromised of different stages. Firstly, it went to himself to sign, secondly to the District Director then it was sent to head office (Ms Ivy Mthombeni), followed by quality assurance. It proceeded to the Director, then finally to the Head of Department (“HOD”) in order to draft the charges.
47. He submitted documentary evidence of “Circular No 2: of 2025 – Management of precautionary suspensions” where it was submitted that a precautionary suspension lapsed when a sanction was given, in this case no sanction was pronounced as yet. It could be beyond the 60 (sixty) days and extended until the disciplinary hearing.
48. The circumstances wherein the precautionary transfer would be extended was due to the investigation that had not been concluded.
49. He submitted documentary evidence of the “Employment of Educators Act, Act 76 of 1998” where it was submitted due to the complexity of the matter, the Respondent had not finalized it as yet. A HOD could extend the transfer/suspension.
50. They could not concentrate on adult behavior and in so doing, disadvantage a child who still had to become an adult.
51. The Applicant would still need to face a disciplinary hearing, hence there was allegations but no proof; they still had to be proven. The Applicant could not go back to school, as the child must be protected at all times.
    Cross-examination {During cross-examination only significant versions or confessions are recorded}
52. The witness explained that he had 23 (twenty-three) years’ experience of being a manager. Furthermore, the Applicant was not brought to a disciplinary hearing.
53. It was put to the witness that there was no provision that a HOD could extend the precautionary transfer, only the presiding officer could do that. The Respondent failed to follow that process.
54. The witness disputed this statement.
55. The witness explained that the Applicant had been on suspension for a period of 4-5 (four – five) months.
56. It was put to the witness that the Applicant had been on suspension for a period of 10 (ten) months.
57. The witness responded and submitted that the Applicant was paid during that period.
58. It was put to the witness that he neglected to deal with this process fairly, only when it appeared before a Commissioner did they do so. If they had not lodged a dispute there would have been no action from the Respondent.
59. The witness disputed this statement and submitted that they could not wait for the Department to act, it was his prerogative to lodge a dispute.
60. It was put to the witness that the Respondent failed to follow the procedure, bitterly so.
61. The witness did not respond to this statement.
62. Re-examination
63. During re-examination, the witness explained that a presiding officer was placed in order to conclude the proceedings, however the HOD must follow up to ensure that all processes had been finalized.
64. During re-examination, the witness explained that the Applicant was not prejudiced, as he was getting his full pay, yet the Respondent was prejudiced as the Applicant was still getting paid and they would have to account to the Auditor.
    Mr Mvandaba Zathu
65. The witness testified under oath that he was a Labour Relations Officer.
66. The essence of the witness testimony inter alia was that his duties involved receiving reports, conducting investigations, presiding over cases and dealing with grievances.
67. He was allocated the case when Ms Nkuna resigned. He did not have the file and started afresh during September/October 2024.
68. In cases which involved sexual harassment, they tried by all means to speed up the process and they did not encourage for the person to return to the school. During September 2024, there were preliminary exams, when he reached the school, the learners would have left already. He then approached the Applicant on 6 November 2024.
69. There were 5 (five) learners that were interviewed but he needed to first obtain consent from their parents, which took time for them to return the forms.
70. The Principal informed him that the forms were returned on 11/12 November 2024.
71. The school holidays were from 20 September 2024 until 1 October 2024. Nothing occurred regarding the investigation when the learners were on holiday.
72. The Applicant only received the extension on 10 March 2025, as he did not have his contact number and he looked for him on the 4th floor. Furthermore, he tried to give it to him during the previous week, however they had a network problem, and he could not print.
73. The Respondent did not act only due to the dispute that they received, as it had to go through several layers. The pre-hearing occurred on 14 March 2025, and the disciplinary hearing was scheduled for 24, 25 & 26 March 2025.
74. For the Applicant to seek upliftment of the suspension; it dealt with the matter involving sexual connotations, the upliftment was preferred only when the disciplinary hearing had been completed. They had to consider the best interests of the learners.
75. In terms of what the legislation said, they had to protect the learners at all costs, no hearing sat and the HOD must consider that the 90 (ninety) days had lapsed. An extension was subsequently issued. The employer (HOD) had the authority to uplift the precautionary suspension.
76. If there was no presiding officer appointed, the Respondent would take the decision.
77. The Applicant was placed on precautionary transfer on full pay, furthermore he did not raise a complaint regarding him travelling to the District Office.
    Cross-examination {During cross-examination only significant versions or confessions are recorded}
78. It was put to the witness that section 6 of the Act prescribes that the process needed to happen within 90 (ninety) days as indicated by the presiding officer.
79. The witness conceded to this statement.
80. The witness explained that there was a delay in conducting his investigation and the presiding officer was not there.
81. The witness explained that the HOD took it upon herself, as there was not a presiding officer that had been appointed at that stage.
82. It was put to the witness that he took over the case during September 2024, and he did not follow the law. He took over 10 (ten) months to provide the charges to the Applicant.
83. The witness disputed this statement and submitted that every investigation had its own challenges. It was incorrect for him to say that they did not follow the law. The Applicant was placed on precautionary suspension, except there was not a disciplinary hearing that was held. He had to start from scratch and the Applicant had a case to answer for.
    Re-examination
84. During re-examination, the witness explained that as per the Act the Respondent took a decision as a presiding officer was not appointed at that time. A presiding officer has since been appointed.
85. During re-examination, the witness explained that during the school holidays the learners were not at school and the staff were also not available. Therefore, investigations ceased during that time.
    Ms Kgomotso Tshiovhe
86. The witness testified under oath that she was a Deputy Director (Labour Relations – Special cases).
87. The essence of the witness testimony inter alia was that her duties involved cases that required precautionary transfers and suspensions. She handled disputes, disciplinary hearings and incapacity hearings, including special cases and precautionary transfers.
88. The Applicant was appointed in terms of the Public Service Act (Employment of Educators) and they were governed by the time frames. Once a misconduct was identified it was reported to the District Office, and they would conduct a preliminary investigation to see whether a precautionary transfer was warranted. Where it was possible, a precautionary transfer was at the District Office. In this matter, the allegations related to sexual harassment of learners. They had to look at the best interests of the child, to ensure that they were protected.
89. The HOD approved the Applicant’s precautionary transfer on 13 June 2024, sexual harassment was very serious and at the District Office no one would be exposed.
90. The Applicant’s precautionary transfer was extended on 10 March 2025, yet the Applicant argued that the HOD had no authority to extend the probation.
91. Some cases were delayed, and this case involved many learners. Furthermore, they needed the parents’ consent. The first investigating officer struggled to obtain consent, and she subsequently resigned. When the new investigating officer was appointed, he started afresh. There were delays due to the school holidays (June and September 2024) and the reasons were justifiable for the delay.
92. The Applicant received the extension due to the number of delays that she had mentioned. When learners wrote their examinations they could not be disturbed. Also considering the June/September and December 2024 holidays.
93. The Respondent had a responsibility to protect the learners, if the Applicant returned to the school, it would pose a risk, therefore they could not endanger the learners. The delay was justifiable.
94. All employees were not paid a transport allowance, if the Applicant had issues with transport he could have raised it with employee relations. Her office was not made aware of any complaint.
95. There was no evidence linked to the allegations in terms of the Applicant’s emotional stress/divorce. If that were the case, the Applicant may follow other legal processes. She could not comment further in that regard.
    Cross-examination {During cross-examination only significant versions or confessions are recorded}
96. The witness explained that the Applicant’s precautionary transfer was from June 2024 until March 2025, therefore it was for a period of 9 (nine) months.
97. The witness explained that the Applicant received the charge sheet on 10 March 2025 (9 months later).
98. It was put to the witness that the Respondent failed to appoint a presiding officer within 90 (ninety) days.
99. The witness conceded to this statement.
100. The witness explained that it was a matter of interpretation that the HOD could not extend the precautionary transfer.
101. The witness explained that she could not argue that it was outside of the time frames, however she indicated the causes for the delay.
102. It was put to the witness that the Respondent failed to follow the correct procedures, the only person that could extend the precautionary suspension was the presiding officer. This should have happened during September 2024, yet the department waited until March 2025.
103. The witness responded that the fact of the matter was once the charges were provided, they appointed a presiding officer.
104. It was put to the witness that the excuses that were put forward by the Respondent, that they did not follow the processes; it could not take 9 (nine) months to interview learners, and the school holidays were for short periods. The Respondent failed to follow a fair procedure.
105. The witness responded that she did not have a comment in that regard, she already mentioned the reason(s) as to why they could not finalize the case.
106. Re-examination
107. During re-examination, the witness explained that if a presiding officer was not appointed the Respondent had the responsibility to extend the duration.
108. During re-examination, the witness explained that the delays were due to the parents providing consent, the investigating officer who resigned, the school holidays and the examination periods.

Analysis of evidence and argument

109. Section 186(2)(a) of the LRA provides that:
     “‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
     (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.
110. Employment of Educators Act, Act 76 of 1998 section 6 provides that:
     6(1) “In the case serious misconduct in terms of section 17, the employer may suspend the educator on full pay for a maximum period of three months.
     (2) In the case of misconduct in terms of section 18, the employer may suspend an educator in accordance with the procedure contemplated in subitem (1) or transfer the educator to another post of the employer believes that the presence of the educator may jeopardize any investigation into the alleged misconduct or endanger the well-being or safety of any person at the work-place.
     (3)(a) If an educator is suspended or transferred, the employer must do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer.
     (b) The presiding officer may decide on any further postponement. Such a postponement must not exceed 90 days from the date of suspension.
     (c) If the proceedings are not concluded within 90 days, the employer must enquire from the presiding officer what the reasons for the delay are and give directions for the speedy conclusion of the proceedings.
     (d) At the time of the enquiry contemplated in paragraph (c) the employer may, after giving the educator an opportunity to make representations, direct that the further suspension will be without pay”.
111. It was common cause that the Applicant was placed on precautionary transfer from June 2024 until March 2025 (equivalent to on or about 10 (ten) months).
112. It was not disputed that the Applicant’s precautionary transfer exceeded a 90 (ninety) day period.
113. It was the Applicant’s contention that his precautionary suspension exceeded the reasonable time frame of 3 (three) months as per the Act, and thus he suffered prejudice.
114. It was the Respondent’s contention that the reason(s) for the Applicant’s precautionary suspension delay were justifiable under the circumstances.
115. The Respondent’s witness, Mr Sehlare Seshibi, submitted in his evidence in chief that “the case was then allocated to Ms Nkuna to investigate which was given to her on 17 May 2024. Thereafter it was the June/July holidays. Ms Nkuna subsequently resigned on 31 August 2024. The case had to be re-allocated, which then only started at the beginning of September 2024. They needed to obtain consent forms, which at times caused a delay. They could not interview the learner until they received the consent forms”. This version was corroborated by the Respondent’s other witness, Ms Kgomotso Tshiovhe.
116. The Respondent’s other witness, Mr Mvandaba Zathu, submitted in his evidence in chief that “he was allocated the case when Ms Nkuna resigned. He did not have the file and started afresh during September/October 2024. Cases which involved sexual harassment they tried by all means to speed up the process and they did not encourage for the person to return to the school. During September 2024, there were preliminary exams, when he reached the school, the learners would have left already. He then approached the Applicant on 6 November 2024”. Furthermore, he “needed to obtain the consent forms”.
     Whilst I am cognizant that the Respondent did not comply with the 90 (ninety) day required time frames. Under the circumstances I am inclined to accept the reasonableness and the justification thereof. The Respondent’s non-compliance was due to the initial investigator who was appointed, Ms Nkuna, who subsequently resigned, it was then given to another investigator, Mr Mvandaba Zathu. Furthermore, time was taken to obtain the parent consent forms, examinations and the June/July/September and December 2024 school holidays. All of these factors contributed to the delay in finalizing the investigation and the non-compliance to the 90 (ninety) day period in which to finalize the matter.
117. It was not dispute that the Applicant was paid with full pay whilst he was placed on a precautionary transfer to the District Office. Therefore, the Applicant was not prejudiced.
118. Whilst the Applicant argued for maximum compensation for damages in terms of pain and suffering amongst others. The Council does not have the necessary jurisdiction to pronounce on same. Furthermore, the Applicant argued for costs due to travelling to the District Office, the Respondent’s witnesses testified that no complaint/grievance was brought forward in that regard. Again, this does not fall within the Council’s jurisdiction.
119. In the case of Long v South African Breweries (Pty) Ltd and others (2018) ZACC 7 the Court held that the “purpose of precautionary suspension of an Employee is mainly to mitigate further risk to an Employer in instances where disciplinary action is contemplated. The circumstances warranting such a suspension differ from case to case”.
120. In the case of SA Municipal Workers Union on behalf of Mathole v Mbombela Local Municipality (2015) 36 ILJ 134 (LC) the Court held that “in the failure to comply with requirements of regulation 6 the Respondent infringed on a clear right of the Applicant not to be suspended without a prior hearing. The harm that the Applicant suffers pending the finalization of the disciplinary hearing is not financial because he receives his salary during the suspension”.
121. In the case of North Western Provincial Government v Gradwell [2012] 8 BLLR 747 (LAC) the Court held that “the proposition that all suspensions should be procedurally fair to avoid the stigma of an unfair labour practice, on the other hand, requires some qualification. Fairness by nature is flexible. Ultimately, procedural fairness depends in each case upon the weighing and balancing of a range of factors including the nature of the decision, the rights, interests affected by it, the circumstances in which it is made and the consequences resulting from it”.
122. In the case of Sappi Forests (Pty) Ltd v CCMA (2009) 3 BLLR 254 (LC) the Court held that “precautionary suspension without pay would be unfair…”.
123. In the case of Dladla v Council of Mbombela Local Municipality and another (2) (2008) 29 ILJ 1902 (LC) the Court held that “damage to an Employee’s reputation was not a ground for finding the suspension to be unlawful”.
124. Section 28(2) of The Constitution of the Republic of South Africa, 1996 (“The Constitution”) provides that “a child’s best interests are of paramount importance in every matter concerning the child”.
125. I am mindful that the learners interests are of “paramount importance”. Such that the Applicant’s matter was on going and was not concluded at the time it was before me.
126. In the present case, due to the sensitive nature of the allegations, the matter involved public interest, furthermore I need to consider the interests of the learners. Having considered the submissions and the above-mentioned factors, the non-compliance to the 90 (ninety) day period in terms of the precautionary transfer was reasonable and justifiable under the circumstances.
127. The Applicant failed to discharge the onus that the Respondent committed an unfair labour practice as contemplated in section 186(2)(b) of the LRA.

Award

128. The Respondent, Gauteng Department of Education did not perpetrate an unfair labour practice as contemplated in section 186(2)(b) of the LRA when they continued as a precautionary measure with the Applicant’s transfer pending finalisation of the Applicant’s disciplinary hearing.
129. The matter is dismissed.

Thus, signed and dated on the 19 May 2025.

Leanne Alexander
ELRC Panelist