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26 February 2026 -ELRC916-25/26NC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN RUSTENBURG

Case No: ELRC916-25/26NC

In the matter between

PSA obo LEBOGANG CHRISTO SEHAKO Applicant

and

Department of Education of Northern Cape First Respondent

ARBITRATOR: MANDLENKOSI MINI

HEARD: 09 February 2026

DATE OF AWARD: 25 February 2026

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (b) – alleged unfair conduct relating to unfair suspension.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

  1. The dispute was scheduled for Arbitration in terms of Section 186 (2) (b) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 7.3 of the ELRC Constitution: Dispute Resolution Procedures (As Amended 25 July 2023). The arbitration was held on 09 February 2026 virtually.
  2. The Applicant, Mr. Lebohang Christo Sehako, was present and represented by Mr. R Abercrombie from Public Servants Association of South Africa (PSA). The First Respondent, Department of Education – Northern Cape, was represented by Mr. FD Bitterbosch from the Labour Relations Department.
  3. On the 09 February 2026 the parties requested that the Closing Arguments be submitted in writing. It was agreed that the parties would submit the written Closing Arguments simultaneously on 17 February 2026 before close of business. The closing arguments of both parties were received timeously and were taken into consideration when finalising the award.

ISSUES IN DISPUTE

  1. This matter came before the Council in terms of Section 186 (2) (b) of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether the Respondent committed an Unfair Labour Practice, in relation to the suspension of the Applicant and if so grant the necessary relief.

BACKGROUND TO THE DISPUTE

  1. The Applicant, Lebohang Christo Sehako, is employed by the Respondent as a circuit manager, he was initially employed as an educator on the 01 January 1997, he is currently earning an amount of R87,731.76 (eighty-seven thousand seven hundred and thirty-one rand seventy-six cents). The Applicant was suspended by the Respondent on the 26 May 2025 and he referred his dispute to the council on the 10 November 2025. The Applicant filed a grievance in relation to his suspension, the grievance meeting was held on the 27 November 2025 and its outcome was issued on the 10 January 2026. The suspension of the Applicant was uplifted and he received the notice on the 20 January 2026.
  2. The Applicant challenged the procedural unfairness of the suspension, as it exceeded the period of 30 days and further stated that the suspension did not comply with policy. The Applicant requested that the Respondent be ordered to pay him compensation.

SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant’s case

  1. The Applicant testified that he was suspended by the Respondent on the 26 May 2026 for an alleged incident. He stated that there was no disciplinary hearing initiated against him in the first three months after his suspension and the suspension was never extended. He further stated that he had to submit a grievance in September 2025 in order for his suspension to be uplifted. The Applicant conceded that his suspension was uplifted in January 2026, after the grievance matter was dealt with and the outcome was that the suspension must be uplifted. He submitted that his suspension was for a period of eight months.
  2. The Applicant confirmed having been acquainted with the policies dealing with discipline of employees and know that time frames are crucial. The Applicant conceded that when he filed the grievance, new rules came into play, however further stated that the employer did not act timeously.
  3. The Applicant disputed the proposition that was put to him that he did not make a case for compensation which was put to him under cross-examination. He stated that he was always loyal to the department for a number years, it pains him that due to a facebook post the department suspended him. He stated that his reputation was affected by the suspension which he worked hard for and he feels aggrieved by this and wants to clear his name.

The Respondent’s case

  1. The Respondent called one witness which was the representative himself, Mr. Bitterbosch and he testified. The witness testified that there was no unfairness as it was cured by the grievance intervention. The outcome and relief cured the unfairness as it is what the Applicant wanted. The witness conceded that the employer did not comply with item 6(3)(a) of the schedule 2 of the Employment of Educators Act. He further stated that it was common cause that there was a grievance that was filed and therefore grievance rules applied.
  2. The witness submitted that when the grievance was filed it had already exceeded the ninety days, as it was 3 months and about few days. He conceded that there was an unfairness which was cured by the grievance that was filed and further stated that there was no disciplinary hearing process held within 30 days, as there was no presiding officer or chairperson appointed.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

  1. Section 186 (2) (b) of the LRA states: “Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving – unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.”
  2. The Applicant led evidence that he was unfairly suspended by the Respondent on the 26 May 2025, for an incident that took place on social media. He submitted that his suspension exceeded three months without any disciplinary hearing being initiated against him. It was further the Applicant’s version that he submitted a grievance in order for his suspension to be uplifted, as there was no extension to his suspension.
  3. The Respondent did not dispute that the suspension had exceeded the time period that are stipulated in the schedules of the Employment of Educators Act 76 of 1998, as it is stated here below. The Respondent made reference to the grievance rules for the Public Service Coordinating Bargaining Council (PSCBC). The important aspect in this matter is that the Applicant was employed in terms of the Employment of Educators Acct 76 of 1998, therefore this Act is applicable with its regulations and codes.
  4. The Respondent’s case cannot be plausible under the circumstances, as it did not comply with the code of disciplinary procedure, what could have possibly cured the transgression was an extension, which was not done by the Employer. The Respondent failed to produce anything or evidence that supports its version that the non-compliance was cured by the grievance that was filed. I am not convinced that the act of the Applicant could cure the failure of the Respondent under circumstances.
  5. The Respondent’s case was that the Applicant cured the procedural defect, when he filed the grievance and that grievance was dealt with and finalised, which resulted in upliftment of the suspension. This patently illustrates that the Respondent concedes that there was a defect in how the employer dealt with the suspension of the Applicant.
  6. Subsection 2 of sections 17 and 18 of the Employment for Educators Act, stipulates that “if it is alleged that an educator committed misconduct or serious misconduct as contemplated in subsections 1 of the sections, the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in schedule 2.”[own emphasis]
  7. Schedule 2 of the Employment of Educators Act 76 of 1998, The Disciplinary Code and Procedures for Educators, item 6. Suspension.—(1) In the case of 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 sub-item (1), or transfer the educator to another post if the employer believes that the presence of the educator may jeopardise 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.
  8. The employer argued that item 6(1)(c) was invoked and this version was left uncontested, however this item speaks to the employer having to act and not the employee, I must say that I find this argued strange. It is my view that even if one were to accept this argument, the interruption or curing happened after the date in which the employer was supposed to have acted, as the grievance was in September 2025 and ninety days lapsed in August 2025 already.
  9. Having considered the above in totality, it is my finding on a balance of probabilities that the Respondent committed an unfair labour practice, when it did not act as it is required by schedule 2 of the Employment of Educators Act. The suspension of the Applicant was procedurally unfair, as the Employer did not initiated a disciplinary hearing with 30 days or ninety days from the date of suspension. The Respondent failed to act accordingly under section 17 and 18 of the Employment of Educators Act 76 of 1998.
  10. The Applicant requested that the Respondent be ordered to pay him eight months compensation, as it is equivalent to the time that he was suspended and sitting at home.
  11. Section 193(4) of Labour Relations Act 66 of 1995 as amended, provides an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
  12. Having considered the above in totality, I am satisfied and find that it would be reasonable, just and equitable under the circumstances to order one month compensation, amounting to R87,731.76 (eighty-seven thousand seven hundred and thirty-one rand seventy-six cents). I am not satisfied that the procedural defect justifies the eight months compensation requested by the Applicant, and he was being paid during the suspension and the Employer has a right to precautionary suspend employees. I have considered the submissions of the Applicant relating to how the suspension made him feel, as well as the question of his reputation that was negatively affected. There was no proof produced though relating to how the reputation was affected save for his submissions.
  13. I therefore make the following award:

AWARD

  1. The Respondent, Department of Education – Northern Cape, committed an Unfair Labour Practice relating to unfair suspension in terms of Section 186(2)(b) of the LRA.
  2. The Respondent is ordered to pay the Applicant compensation to the amount of R 87,731.76 (eighty-seven thousand seven hundred and thirty-one rand seventy-six) by no later than the 31 March 2026.
  3. The Respondent must pay the above-mentioned amount into the Applicant’s bank account as per its records.
  4. There is no costs order granted.

Panellist: Mandlenkosi Mini