Panelist: Mothusi Maje
Date of Award: 25 July 2024
In the ARBITRATION between:
Zelda Zuricka Vos
(Union / Applicant)
And
Northern Cape Department of Education
(Respondent)
Applicant’s representative: Herself
Applicant’s address: 7 Plein Straat.
Loeriesfontein
8185
Telephone: 066 294-5282
Email Zeldavos@gmail.com
Respondent’s representative: Ricardo Tommy Britz (Assistant Director)
Respondent’s address: Department of Education: Northern Cape
Private Bag X 2, Springbok
8240
Telephone: (027)718-8600
Email: fadielfarao@ncdoe.School.za
DETAILS OF HEARING AND REPRESENTATION
1. This is an award of the arbitration that was held on the 26th June 2024 on Microsoft team’s link. It became part-heard and continued on 01 July 2024 and 02 July 2024.The Applicant appeared and she was not represented. Ricardo Tommy Britz appeared on behalf of the Respondent as its Assistant Director.
ISSUE TO BE DECIDED
2. The issue to be decided was whether the Applicant’s suspension was procedurally and substantively unfair.
BACKGROUND TO THE DISPUTE
3. The applicant is currently employed by the respondent as Principal (Post Level 4) at the Loeriesfontein High School. She is earning R472 569 per annum and was put on special leave by the respondent on 01 March 2024 upon arrival at the School gate due to community protest and students.
4. The Applicant approached the Education Labour Relations Council (ELRC) alleging that she was suspended and the same suspension was procedurally and substantively unfair and seeking suspension to be lifted and compensation the entire period of suspension. The suspension was in terms of the Schedule 2 of the Employment of Educators Act 76 of 1995 (EEA).
5. The dispute was not resolved at conciliation and arbitration hearing was scheduled on 26 June 2024 and 01 July 2024 and 02 July 2024 respectively, hence this award.
6. There were bundles of documents that were also submitted by the parties. The applicant’s bundle was marked bundle A and the respondent’s bundle of documents were marked Bundle B.
7. The parties also submitted oral closing arguments on 09 July 2024.
8. Because the proceedings were manually and electronically recorded, the summary of the evidence will appear in the analysis that will follow herein under.
SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT
Zelda Zurika Vos testified as follows:
9. In order to support her case the applicant was placed on special leave from 01 March 2024 until 31 May 2024. In her view, that amounted to an “unfair Labour Practice as per Section 186 (2) (b) of the Labour Relations Act, 66 of 1995”. The special leave was granted to her on 01 March 2024
10. She testified that the special leave started on 01 March 2024 until 31 May 2024 with the reasons that it was for safety and stability of the School. The parents refused that the School should be re-opened. There was an extension to a special leave for safety at the School.
11. It was her evidence that she challenges the Acting District Director not having powers to and authority to put her on special leave. Only the Head of Department has the powers and delegation of authority. The special leave must be declared unfair and compensation must be considered.
12. The applicant further testified that she went to the South African Police Services (SAPS) to request assistance. Bundle A on page 1 is the salary advice for May 2024. On page 3 of bundle A is the June salary advice. Page 8 of bundle A is the request of office keys on 02 March 2024. Page 10 is the lock at the School. Jan Beukes stated that all parents locked the School gates.
13. Page 17 of bundle A is the attendance register of educators on 04 March 2024 but the Educators did not enter the School premises. Page 23 of bundle A is the special leave letter from the Acting District Director on 05 March 2024 until 05 April 2024. On page 27 of bundle A is the email received on 05 April 2024 stating that she should not report for work.
UNDER CROSS EXAMINATION
14. The applicant’s desired outcome was compensation for the period from 01 March 2024 until 31 May 2024.
15. The parents and learners’ were rude and violent.
Andre Hermanus Reyners testified as follows:
16. On 04 March 2024, he contacted the applicant at the Loeriesfontein Police Station that he informed the staff that the applicant will return to work. Mr. Beukes from the School Governing Body (SGB) was also informed and the staff at the School were not happy about the applicant’s return to work.
17. He could not meet the applicant on 04 March 2024 because everything was in place for her return to School. The applicant asked for the security guard from the School but she was refused as it was practically impossible to arrange security.
UNDER CROSS EXAMINATION
18. Her evidence was that a letter was written to the Acting District Director by Captain from the South African Police Services because there were group of people at the School waiting outside who were very aggressive.
Hilrico Dirks testified as follows:
19. He did not work under the applicant’s supervision. On 05 March 2024, he was present at the School. On 04 March 2024, he was outside the School but could not recall signing the attendance register.
UNDER CROSS-EXAMINATION
20. On 04 and 05 March 2024, he was present at the School. On 04 March 2024, there were community members protesting at the School gate. The protest action took 3 to 4 hours and it was not safe to enter the School yard.
21. The community members indicated that they do not want the applicant at School. On 04 March 2024, the situation was even worse at the School due to the protest action by learners and the parents.
Elizabeth Wilcocks testified under oath
22. She was not disciplined at the workplace and she was appointed as the Acting Principal. She was not informed of the applicant’s return to work. She did not respond to the applicant on the email dated 02 March 2024 about the School keys. She was not involved in a protest action on 04 March 2024.
23. She did not hand all the keys to School but only kept the safe keys. On 05 March 2024, she reported for work and signed the attendance register and did not proceed to the administration building. She could not meet the applicant before the Department mediated the situation.
UNDER CROSS-EXAMINATION
24. The School Governing body was handed the keys. On 04 March 2024, she reported for work and fund the applicant and her family at the gate. She joined her colleagues at the gate. The circuit manager came and addressed the situation.
25. The learners were standing at the gate holding the placards that they do not want the applicant inside the School premises.
Raquel Farmer testified as follows:
26. She had a good relationship with the applicant but he was not informed that the applicant was coming back to work.
27. Page 10 of bundle A is the lock at the gate and there were different locks at the gate. On 04 March 2024, she was not nearer to the gate and she entered through a small gate. She did not report to the applicant but waited for the circuit manager to address them.
28. Page 17 of bundle A is the attendance register signed. On 04 March 2924, she was not near the gate. No learners were disciplined for the protest action. The weather was not good and she was very nervous and the feeling was not good.
29. There was an argument with the applicant to put her on special leave because of the circumstances at the School.
UNDER CROSS-EXAMINATION
30. The special leave was the best decision to circumvent the situation at School.
RESPONDENT’S EVIDENCE.
Plaire Van Settis testified as follows:
31. His evidence was that he was the Chief Education Invigilation Specialist in the Northern Cape. He forms part of the District Management team. He was a delegated person with full responsibilities and powers. The head of assessment body must appoint the Principal.
UNDER CROSS-EXAMINATION
32. The Chief Invigilator is the Principal of the School.
Cupido Erasmus testified under oath:
33. He is the chief Education Specialist and the Supervisor of all circuit managers. He conformed a special leave for the applicant after a meeting under extra ordinary circumstances for safety of the applicant and learners.
34. The situation was volatile because the community members, learners and the educators were blocked from entering the School premises. It was stated that the applicant victimized the learners.
UNDER CROSS EXAMINATION
35. There was a leave policy at the School known to the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
36. Section 186 (2) (b) of the Labour Relations Act provides that the “unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee”.
37. In Grogan, Workplace Law, suggests that the term “suspension” in Section 186 (2) refers only to suspension imposed as a disciplinary penalty and not to the situation when an employer suspends an employee pending a disciplinary hearing.
38. 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 is by its nature is flexible. Ultimately, procedural fairness depends in each case upon weighing and balancing of a range of factors of a range of factors including the nature of the decision, the rights, interests and expectations affected by it and the consequences resulting from it.
39. Suspension as a disciplinary sanction, the right to a hearing or more accurately the standard of procedural fairness, may legitimately be attenuated, for three principal reasons. The employer should have sufficient reasons to believe, a prima facie case at least that the employee has engaged in a serious misconduct.
40. There was an allegation by the applicant that she was suspended on 01 March 2024 was not true. The situation at the employer’s premises was volatile and the employer had a responsibility to ensure safety of learners and the educators. A special leave granted to the applicant was a careful curtesy to avoid loss of lives to the entire community.
41. The employee did not suffer palpable prejudice to reputation, advancement and fulfillment.
42. In conclusion, there must be enough evidence of actual financial loss suffered by the person claiming financial loss during the suspension period. There must be proof that the loss was incurred and caused by the Unfair Labour Practice. The loss must be foreseeable, i.e. not too remote or speculate.
43. The undisputed evidence from the applicant was that the employer did not suspend her, but she was put on special leave due to the unbecoming behavior of learners and members of the community.
44. There was no suspension but a special leave granted to the applicant.
AWARD
45. The respondent is not found to have committed an Unfair Labour Practice with regard to the special leave granted to the applicant, Zelda Zuricka Vos in terms of Section 186 (2) (b) of the Labour Relations Act of 1995, as amended.
46. The respondent did not commit any alleged unfair labour practice.
47. The applicant’s case is dismissed.
48. The Educations Labour Relations Council is advised to close this file.
ELRC Panelist: Mothusi Maje
25 July 2024