Case Number: ELRC 408-24/25 NW
Commissioner: Annelie Bevan
Date of Award: 21 October 2024

In the matter between

SAOU obo LAMAR WINTER

(Union/Applicant)

And

THE NORTH WEST DEPARTMENT OF BASIC EDUCATION

(Respondent)

Details of hearing and representation

1. The ELRC scheduled the arbitration for the unfair labour practice dispute, disciplinary action short of dismissal, between L Winter, the Applicant and the Department of Basic Education, Northwest Province, the Respondent, for 09h00 on 4 October 2024 on the online platform Zoom.
2. All parties were present. S Coetzee-Myburg of “die Suid-Afrikaanse Onderwys Unie” (SAOU) represented the Applicant, and M Cindi, a labour relations official of the Respondent, represented it.
3. The arbitration was digitally recorded, and I also kept long hand notes.
4. The parties agreed to submit written closing arguments by 11 October 2024.

The issue to be decided

5. I must decide whether the Respondent committed a procedurally and substantively unfair labour practice relating to disciplinary action short of dismissal when it issued the Applicant with a final written warning on 30 July 2024, in terms of section 186(2)(b) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA) and if so, order the appropriate relief.
6. The Applicant seeks that the final written warning issued to her on 30 July 2024 be removed and expunged from her personnel file.

Background to the matter

7. On 30 July 2024, the Applicant referred an unfair labour practice dispute relating to disciplinary action short of dismissal to the Council on the same date that the Respondent issued her the final written warning.
8. The Council scheduled the arbitration for 4 October 2024, which was finalised on the same date.
9. The parties used a combined bundle of documents:

Evidence and submissions of the parties

The Applicant’s case:
10. The Applicant testified under oath in evidence in chief that:
10.1 She is the Principal at the Rustenburgse Skool vir Buitengewone Onderwys, an LSEN school that caters to learners with severe intellectual disabilities.
10.2 She appointed Ms Refilwe Menwe as an Education Assistant on 2 May 2023, as required by the Framework for the Presidential Youth Employment Intervention. At the time of her appointment, Ms Menwe was 35 years old. The Director General of the Department of Basic Education relaxed the age requirement for appointments of identified youth at Schools for Learners with Special Needs (Annexure D).
10.3 Despite complying with all the prescripts in making the appointment, she was called to collect books from another school on 30 July 2024. However, when she arrived at the school, she was very surprised to realize that it was a meeting where the Respondent met with many employees to issue them final written warnings for allegedly not complying with the requirement for such appointments; in her instance, it was for not complying with the age requirement in the appointment of Ms Menwe.
10.4 According to the Applicant, Mr Mogatusi, who issued her with the final written warning, was procedurally fair since he explained in great detail what the warning was all about. However, she was not timely informed of the allegations of misconduct against her or received written reasons for the decision to issue her with a final written warning (Clause 2(d) of the Disciplinary Code).
10.5 She immediately contacted her union, and despite objecting to the final written warning, the Respondent did not withdraw it.
10.6 She is adamant that the warning should be withdrawn, as she did nothing wrong.
Cross examination:
10.7 She confirmed that the process of the final written warning was explained well. She maintained that she was not guilty.

The Respondent’s case:
11. Mr Mogatusi testified under oath:
11.1 The auditors noted that the requirements for appointment in the Presidential Youth Employment Intervention were not always followed and proposed that disciplinary action be taken against the principals involved.
11.2 The principals of the schools identified by the Auditor General were invited to a meeting at Bafokeng High School. He explained to them that the procedure for issuing final written warnings would be informal. If the employee does not agree with the final written warning, they could object to it, which would be equivalent to cancelling the final written warning.
11.3 He conceded that the Applicant did indeed comply with all the requirements for Ms Menwe’s appointment and advised her to object to the final written warning.
Under cross-examination, he testified that:
11.4 He signed the final written warnings he issued to individual employees, including the Applicant.
11.5 He confirmed that the Auditor General’s allegations against the principals were not investigated and that he acted on them by issuing the implicated principals with final written warnings.
11.6 He says the regulations do not require the Respondent to respond to the objection letter. He conceded, however, that the Applicant was not guilty of the alleged misconduct and that her objection letter cancelled it.

12. I thank the parties for their written closing arguments submitted and considered.

Analysis of evidence and argument
13. I intend to offer brief reasons in my analysis as per Section 138 (7) of the LRA as amended, which states, “Within 14 days of the conclusion of the arbitration proceedings – the commissioner must issue an arbitration award with brief reasons”.
14. In terms of section 186 (2)(b) of the LRA, an unfair labour practice is defined as “any unfair act or omission that arises between an employer and an employee involving an unfair suspension or disciplinary action short of dismissal. The Applicant referred an unfair labour practice relating to disciplinary action short of dismissal to the Council.
15. Whether the First Respondent has committed an unfair labour practice is an objective, factual enquiry.
16. The onus to establish that the conduct complained of constitutes an unfair labour practice within the meaning of section 186(2) of the LRA rests on the Applicant (City of Cape Town v SA Municipal Workers Union obo Sylvester and Others (2013) 34 ILJ 1156 (LC)). Therefore, the employee must lay the evidentiary foundation on a balance of probabilities for their claim of an unfair labour practice. Mere dissatisfaction with a process’s outcome is insufficient to sustain that claim.
17. Section 18(2) of the Employment of Educators Act, No 76 of 1998 (EEA) determines that if an employee committed any of the misconduct listed in subsection (1), then the employer must institute disciplinary proceedings following the procedures contained in Schedule 2 of the Act The Disciplinary Code and Procedures for Educators, from now on called “the Disciplinary Code”).
18. If an employee is found guilty of the alleged misconduct, they can be issued a final written warning (like in the case of the Applicant) (see section 18(3) of the EEA).
19. The principles underlying the Disciplinary Code are that discipline must be corrective, not punitive, and applied promptly, fairly, consistently, and justly (Clause 2 of the Disciplinary Code).

20. In terms of clause 4(6) of the Disciplinary Code, the following processes should be followed in informal disciplinary cases:
20.1 The Respondent must convene a meeting where the educator and her trade union representative, who is based at the institution, are present.
– It is clear from the evidence of the Applicant and the Respondent’s witness that there was no compliance with this requirement, which will make the unfair labour practice procedurally unfair.
20.2 Reasons are given to the educator as to why it is necessary to initiate this process;
– The Respondent did comply with this requirement.
20.3 The educator or her representative must be given an opportunity to be heard;
– The Respondent complied with this requirement.
20.4 After that, the Respondent must decide on a sanction.
– The evidence of the Respondent’s witness created the impression that a decision was taken to issue all principals with a final written warning, and the fact that the Respondent agreed that the Applicant was not guilty of the misconduct did not have an impact on its decision to issue a final written warning to the Applicant.
20.5 If an educator is dissatisfied with the sanction, she may object or provide additional information, which would be filed with the sanction on the educator’s personal file.

– The Applicant did comply with this.
20.6 The final written warning will be kept on the Applicant’s personnel file for six months from the date of issue, after which it will be removed and destroyed. The Applicant’s final written warning will be removed and destroyed on 30 December 2024.
21. In terms of the Respondent’s Disciplinary Code, discipline must be corrective and not punitive and must be applied promptly, fairly, consistently, and justly. It is patently unfair if the Respondent issued the Applicant with a final written warning if there was no conduct to be corrected. If the Respondent was fair and just, it would have considered the submissions made by the Applicant and not unquestioningly have accepted the report of the Auditor-General as the gospel truth. Furthermore, if it agreed with the Applicant, as in this case, fairness would have dictated that the Applicant should not be issued a final written warning.
22. The conduct of the Respondent was, therefore, substantively unfair. The fact that a final written warning will be removed from an employee’s file after six months, coupled with the process that the Applicant can object to, does not give the Respondent carte blanche to act procedurally or substantively unfairly towards an employee. The Respondent is the employer, who must apply its mind to the facts presented and make a fair and just decision. In this instance, the Respondent failed to do so.

Relief
23. The relief sought by the Applicant is that the final written warning be removed and expunged from her file immediately.
24. Section 193(4) of the LRA determines that arbitration may determine an unfair labour practice dispute on terms the arbitrator deems reasonable, including ordering reinstatement, re-employment or compensation. It would be reasonable to order the Respondent to remove and destroy the final written warning issued to the Applicant immediately, as she was not guilty of the alleged misconduct.

Award
25. I find that the decision of the Respondent, the Northwest Department of Education, to issue the Applicant, L Winter, with a final written warning on 30 June 2024, constituted a procedurally and substantively unfair labour practice relating to disciplinary action short of dismissal in terms of section 186(2)(b) of the LRA.
26. The Respondent is ordered to remove and expunge the final written warning issued to the Applicant immediately, as she was not guilty of the alleged misconduct and inform her in writing that this has been done within 30 days of this award.

Signature:

Panellist: ANNELIE BEVAN