IN THE ELRC ARBITRATION
BETWEEN: ELRC 513-24-25GP

GETRUDE BERTHA NOMATHEMBA LETSOELE Applicant
and

DEPARTMENT OF EDUCATION – GAUTENG Respondent

ARBITRATION AWARD

Date of award: 24 January 2025
Gcina Mafani
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

1. DETAILS OF HEARING AND REPRESENTATION

1.1. The arbitration was scheduled for the 5th of November 2024 at Cnr Simmonds and Main Street, Hollard Building.
1.2. and proceeded as such. Both parties were present, the applicant, Bertha Gertrude Letsoele was represented by Mr. Justice Lebea of Lebea & Associates.The Department of Education: Gauteng was represented by Dr. Mogaba Tsebe, the Assistant Director: Labour Relations.
1.3. The arbitration was concluded on the 28th of November 2024.
1.4. The Applicant commenced with her evidence as the referral was for S186 (2)(b) of the LRA
1.5. Before the start of the arbitration process, the Respondent raised the issue of legal representation, but chose to abandon the objection to avoid delays.
1.6. Both parties submitted their bundle of documents which was later marked Exhibit A and B respectively.
1.7. The parties agreed to file their closing arguments by close of business on the 10th of December 2024.
1.8. The submissions of both parties were carefully considered but will not be repeated herein as contents basically mirror what was put to the parties during the leading of evidence and cross examination in the arbitration.

2. BACKGROUND
   2.1. The Applicant Mrs. Bertha Gertrude Nomathemba Letsoele is an employee of the Respondent from 2 February 1992. Presently in a position of Principal at Daveyton Skills School in Benoni, Gauteng,
   2.2. On or around the 12th of April 2024 to the 15th of April 2024, learners from Daveyton Skills Centre travelled to Pretoria for a discipline camp organized by Rising Stars Generation (NPO). Two of the learners who had travelled with the school had an unfortunate accident and drowned to their death.
   2.3. On the 16th of April 24 the Applicant was issued with a letter in which she was asked to give a statement and representations why a disciplinary hearing should not be instituted against her.
   2.4. On the 10th of May 24 the Applicant was issued with a precautionary transfer letter and asked to report to the District Office from the 13th of May 2024.
   2.5. The Applicant has been reporting to the District Office from then to date.
   2.6. The Applicant has referred a dispute because she felt that the Respondent has taken too long in dealing with her matter whilst she is on precautionary transfer, that she was not given an opportunity to make representations when she was placed on the precautionary transfer, and further that the precautionary transfer is a suspension not a transfer.
   2.7. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186(2)(b) of the Labor Relations Act 66 of 1995 (LRA.)
   2.8. Given the above, the Commissioner is required to determine whether or not the Respondent perpetuated an unfair labour practice relating to transfer /suspension in terms of section 186(2)(b) of the Labour Relations Act 66 of 1995.
3. ISSUE TO BE DECIDED
   3.1. Whether or not the Respondent perpetrated an unfair labour practice relating to suspension (According to the Pre-Arb minutes signed by C Willows).
4. APPLICANT’S EVIDENCE AND ARGUMENTS

4.1. The Applicant testified under oath and stated that she is a Principal at Daveyton Skills Special School for learners with mild to moderate intellectual disabilities from 2016 to date.
4.2. She began her role as the school Principal in 2013. Before her appointment as the Principal, she was a Deputy Principal at Phandimfundo Secondary School.
She summarized her teaching experience as follows:
• 1992 Hulwazi Secondary School
• 1999 Buhlebemfundo HOD English Dept
• 2009 Phandimfundo, Deputy Principal focused on Curriculum
• 2013 Sozizwe Primary School
• 2016 Sozizwe converted to Daveyton Skills Special School.
4.3. She testified that she has experience in terms of organizing school activities and trips.
4.4. On the 15th of April 2024, the learners had a trip and there was an accident where two of the learners drowned to their death. The day after the incident she called Ms Ntutha to inform her what had happened, to which she was asked if the District had approved the trip.
4.5. Ms Ntutha came to the school and after collecting all the information she told her that she was going to issue her with the OD letter. She was further advised to call the unions.
4.6. The Applicant explained that she was hysterical the whole time and could not collect herself.
4.7. She testified that on the 15th of April 2024 she was with Sibiya, they had gone to the scene and the Police insisted on telling the families, but she wanted to be the one to inform the parents of the deceased children. One family was able to identify their child, but the other family (The Peterson) could not be reached so they were informed later, that is when they established that the father was in Northwest. They were later taken to the scene the following day.
4.8. On the 17th of April 2024, whilst at the Medi Clinic, she received a call from Mr Nkosi, who wanted to know where she was because he had a document that needed her attention. Mr Nkosi came to Medi Clinic and served her with a document. She was asked to read it and sign it. Sickly as she was, she was expected to respond to the letter, that is the letter on page 1 of the Applicants bundle.
4.9. She testified that she told Ms Ntutha that the school had permission to undergo the trip, but Ntutha said they were not able to find such permission at the office.
4.10. She testified that she did not know anything about the regulations, however she had submitted something which was approved.
4.11. She testified that on the 10th May 24, two ladies from Ekurhuleni North District Office came to the school and served her with a second letter which read as follows:
Dear Ms Letsoele
CONFIRMATION TO EFFECT PRECAUTIONARY TRANSFER: YOURSELF
kindly take note that the Gauteng department of education has decided to place you on precautionary transfer to Ekurhuleni North District Office. The Precautionary transfer is confirmed.
It is alleged that you failed to comply with Paragraph7.1 of the Regulations on Domestic and International Tours for Learners at public schools (2012) that provides; “every public school must obtain prior written approval from the Department for any tour”. In that on or around 12 April to 14 April 2024, Daveyton Skills Centre travelled to Tshwane for the discipline camp organised by Rising Stars Generation NGO without authorisation or permission from GDE, and two learners drowned whilst on that trip.
Note that the transfer is affected as a precautionary measure pending the finalisation of disciplinary proceedings against you. It is also affected because it is believed that your presence at Daveyton Skills Centre might jeopardize any further investigation into the allegations. This precautionary transfer does not seek to serve as a judgement against you but merely a risk prevention measure, taking into account the nature of the allegations made against you. This will remain in effect for 90 calendar days or pending the final outcome of the disciplinary proceedings and or appeal.
During the period of your precautionary transfer, you are hereby instructed to report at Ekurhuleni North District Office and to refrain from visiting Daveyton Skills Centre, not to communicate with the SGB members, or any employee or any learner of the school. You may therefore not enter the premises of the institution unless it is for the purposes of attending interviews with the investigators and or to attend a disciplinary enquiry. You may make arrangements with the Labour Relations unit at Ekurhuleni North District Office to meet with witnesses from the institution in preparation for your disciplinary hearing if so required. Kindly arrange with the same office for the return of any assets belonging to the Department and / or institution, if applicable.
Please inform the Labour Relations unit at the District Office of your contact details to ensure that communication with you is possible at all times, if so required. Should there be a need for further clarification regarding the contents of this letter, please contact the Director: Labour Relations by Phone at 011 355 1506 or by fax at 086 216 8024.

4.12. On the same day there was a Principals’ meeting, she was instructed not to attend, instead to send someone else, so she sent the Deputy Principal.
4.13. The two ladies read the letter to her, and she was not given a chance to even finish what she was doing, as the ladies were hell bent on escorting her. She stated that it was embarrassing for her to be escorted in front of the learners, so she devised a plan to go to her car without the two ladies and that is how she escaped being escorted and saved herself from the embarrassment.
4.14. She called the Deputy Principal and gave him all the instructions and informed him that she was instructed to report to the District Office.
4.15. She testified that she could not understand why she had to be escorted out of the school.
4.16. She testified that she was never at any time before the 10th of May 2024 furnished with the copy of the Regulations on Domestic and International Tours for Learners at Public Schools (2012). She did not know whether the letter dated 31 January 2024 addressed to all the Principals of POS Primary and Secondary schools from the District Director, Ms N Ntutha, was dealing with the issues raised in the Business Plan or was just a standard letter addressed to all the school Principals. This is a document on page 18 of the Applicant’s bundle. The letter was only accompanied by the checklist and not accompanied by the copy of the Regulations on Domestic and International Tours. She reiterated that she did not know anything about the Regulations.
4.17. Page 72 3(a) read into record, she stated that the ninety (90) days referred to in the precautionary transfer is the same as that of suspension. According to the Employment of Education Act the employer has referred to 90 days. She testified that there was no communication with her for ninety (90) days, this was in contravention of the rules.
4.18. Her purported transfer was not compliant with sub-section 2 which provides that the transfer must be to another post. The expression “Transfer the educator to another post” permeates all sections and sub sections in the Employment of Educators Act, in particular Section 8. It is, indeed, a common thread throughout section 8 of the Employment of Educators Act.
4.19. She testified further that the Department did not appoint a Presiding Officer, convened, and concluded the disciplinary hearing within one month after her suspension or purported transfer as provided in sub section 3 (a).
4.20. She reported at the District Office to Mrs Flora Agalhas, asked what she was supposed to do, she even requested to work at the office which deals with external offschool evaluations (team of specialists which checks on schools give support where needed). She was told that she was not allowed to visit schools. She even asked for a copy of the Regulations so she could study them, but she was told that she just had to come and sit on the 8th Floor. She felt that she was made a public spectacle, it was no secret why people were there. She was told that she was there for the media, her conclusion was that the 8th floor was where all the criminals were sent.
4.21. She testified that she was pushed to appear on National Television, the Minister treated her with contempt, maybe that is why they then said they were transferring her for her safety. She knew that the families did not blame her for the accident however everything changed after the arrival of the MEC.
4.22. She described the pain caused when she was made to sit and endure humiliation, being asked questions on TV, she was sick, felt dizzy most of the time, the children that were deceased were her children, her children have been bullied because of this, her medical aid has been used up, she spends thousands on medication because she is constantly on strong medication
4.23. She was told that there were calls from people asking why she had not been suspended.
4.24. She testified that the employer was inconsistent in its treatment. The Principal from Parktown Boys lost a learner, but his case was not aired on television, Latoya drowned, but the Principal was not never treated the way she was treated, In Pretoria Girls, a learner drowned but the Principal was not treated the way she was treated. She was bullied to sit there and be ridiculed, pictures of her taken without her consent.
4.25. Learners knew that she was suspended, and some were talking in the school corridors, asking if her suspension was over.
4.26. A colleague passed on, and this was a person she had worked with for many years, yet she was not allowed to attend the funeral.
4.27. After the winter holidays, she asked Mr Nkosi if it would be possible to go back to school, she was worried about her grade 12 learners they were struggling, she needed to prepare them for the final exams, she did not get any response.
4.28. She reiterated that she was not assigned anywhere, she was not given any work, when she reported to her circuit manager, she was told she was not going to be there for long. If she was indeed transferred, she would be working at the District Office, she is convinced that she is on suspension.
4.29. The decision to take the children on that school trip was done to assist the school and the children. The teachers have endured a lot of insults and beating from the learners, a school that was meant to be a mild special school was turned to be a school for learners with behavioural issues.
4.30. She stated that she is seeking 12 months compensation in relation to Sec 194 of the Labour Relations Act.
4.31. She also wants to go back to school, she wants to do what she loves. She served the Department for 32 years diligently and she deserves to be treated with respect. From the 10th May 24 to date she has not been to work.
4.32. The Applicant denied that her life was in danger or threatened, if there was such, it would have been because of the public statements made by the MEC Chiloane where he used public platforms and the media briefing to accuse her of being responsible for the unfortunate and tragic death of the learners.
4.33. She further denied that she reported at the District office sick, if she felt ill at any time, she would have consulted her Medical Doctor who would in his opinion book her off sick if he felt she was unfit to report for duty. In such event, the medical certificate would have been the evidence of her incapacity.

5. RESPONDENTS EVIDENCE AND ARGUMENTS
   1st Witness for the Respondent
   PETER NKOSI the Deputy Chief Education Specialist Labour Relations
   5.1. He testified under oath and stated that he has been in this current position for the past five (5) years, Heading the Labour Office in Ekurhuleni North (Benoni), fifteen (15) years as an SCS (Junior position to the current position.
   5.2. That 6 people reporting to him, mostly he delegates cases to his subordinates, however all Principal cases are handled by him. He regards himself as very knowledgeable.
   5.3. He spoke to the referral form and stated that the date when the dispute arose is very important as well as the nature of the dispute. He testified that the Applicant’s referral was premature, from the day of signature of the letter of transfer to the date of referral it’s a day or two within the 90 days. He stated that the dispute arose on the 8th of August 24.
   5.4. He testified further and stated that suspension is only applied to Junior employees such as PL1 teachers, HOD PL2, and Deputy Principals PL3. Pl4 and PL5 Principals get transferred to the District Office for the duration of the investigation. If there is an opening in a certain school another Principal can be transferred there. For a person to be placed in a post, the post must be vacant and funded. He continued to explain that the Principals are transferred because their duties and IDSO (Institutional Development Support Officer, Inspectors) are the same therefore at the District they can be gainfully employed because their duties are Managerial.
   5.5. The Applicant was moved from the school to the District where her expertise would be gainfully used.
   5.6. The witness denied that the Applicant was suspended and stated that school Principals are never suspended.
   5.7. Time frames were put in order to put pressure on the Department to expedite the process. This is done to assist the employee to have an idea how long they might be transferred for. He conceded that the three (3) months is not in the Act for transfers.
   5.8. He testified that in Benoni they generated a time book for the transferred teachers for clocking.
   5.9. The teachers are placed on the 8th Floor where they are allocated duties. When the Applicant came to the District Office, she was not well, understandably, the incident had taken a toll on her health.
   5.10. If the Applicant felt aggrieved that she was not given duties, she should have registered her complaint, if she was still not satisfied, could have escalated. He stated that it was unfair for her to now raise this because they thought they were being considerate of her condition.
   5.11. He testified that the Department was planning for an ordinary disciplinary hearing, however the Applicant invoked Section 188A which meant that the matter now had to be handled by the ELRC. An application was made to the ELRC, and they had to wait for the response. They had issued a charge sheet, the Head Office had to take over because of the nature of the process.
   5.12. He testified that the previously the Department used to request the employees to make representations, however there is a case law which guides otherwise.
   5.13. The community of Daveyton and Thembisa were up in arms which necessitated the Applicant’s transfer to the District Office. Her presence at the school would have jeopardized her life as well as the lives of the other teachers at the school.
   5.14. Some family members recorded their displeasure and that necessitated the transfer, not withstanding that, the Applicant was in hospital, and she was affected immensely.
   5.15. Under cross examination he conceded that he was still confused regarding the nature of the dispute whether the Applicant is complaining about being transferred or whether it’s the fact that the transfer has taken longer than three (3) months.
   5.16. Under cross examination the witness conceded that he wrote a letter to the Department, pushing the Department to uplift the Applicant’s transfer to avoid referral. He stated that he is not sure if the letter eventually reached the Head Office because it was not signed. His advice came from the fact that the investigations had been finalised.
6. ANALYSIS OF EVIDENCE

6.1. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour relations Act (the LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the respondent amounted to an unfair labour practice as defined and distilled from the applicable jurisprudence and as envisaged in the law.

6.2. I am required to determine whether the Respondent perpetrated an unfair labour practice relating to the transfer.

6.3. In Mogothle vs Premier of the Northwest Province & Another, the Labour Court noted that suspension of an employee pending and enquiry into the alleged misconduct is equal to an arrest and should therefore be used only when there is a reasonable apprehension that the employee will interfere with the investigation or pose a threat of some kind. It follows that it is only in exceptional circumstances that the employee should be suspended or transferred pending the disciplinary enquiry. The employee suffers pulpable prejudice to reputation, advancement, and fulfilment. These limited reasons for suspension and above-mentioned prejudice make a compelling case for regulation.

6.4. The Applicant went to great lengths explaining that this was not a precautionary transfer, but a suspension. The letter given to the Applicant stated that she was being transferred and that she had to report to the District office. The Applicant testified that she reported at the District office from that time to date. The witness of the Respondent testified that Principals get transferred because they can be gainfully employed at the District Office.

6.5. The Applicant claimed that she was not assigned any work at the District Office, which led her to believe that this was not a transfer but rather a suspension. The Respondent’s witness refuted this claim, stating that the letter issued to the Applicant clearly indicated a transfer. He explained that Principals are not suspended because there is work for them at the District Office. He further noted that if the Applicant was not assigned tasks by her supervisor, she should have escalated the matter to have it addressed. The witness added that they sympathized with the Applicant due to her circumstances and health issues, which is why she was advised to report to work only three days a week instead of the usual five days.
6.6. Having considered all the above, I am satisfied that the Applicant took no action to address the issue of work assignment. Had she raised the matter and no resolution was provided, the circumstances might have been different. I am further satisfied that the Applicant was placed on precautionary transfer as demonstrated by the Respondent.

6.7. The second issue raised by the Applicant concerns the Respondent exceeding the 90-day period to finalize the disciplinary enquiry. The Applicant was placed on precautionary transfer on the 10th of May 2024, meaning the 90-day period would have expired on the 9th of August 2024. However, the Respondent testified that the charges were only signed on the 26th of August 2024. This clearly indicates that the Respondent exceeded the 90-day time frame for finalizing the disciplinary enquiry.

6.8. In the private sector there are no steadfast rules in respect to what constitutes a reasonable time period, unlike the public sector. Different Departments in the Public sector are governed by different collective agreements stipulating what a reasonable period is deemed to be. Normal practice is that 30 days is regarded as reasonable period of suspension pending a disciplinary enquiry. It is normal practice that the enquiry will be conducted within 30 days period.

6.9. The position is similar in the public sector for example the Department of Education Collective agreement schedule 2 Section 6 (1) it states that an employer may suspend an educator on full pay for a maximum of three months. It states that if an educator is transferred / suspended the employer must do everything possible to conclude the disciplinary enquiry within one month of the suspension or transfer. Fairness requires that the employee must possess a certain degree of knowledge upon which her suspension / transfer is based.

6.10. In its closing arguments the Respondent argued that precautionary suspension is designed to temporarily remove an employee from the workplace when their continued presence might interfere with investigations, pose a threat to workplace safety, or risk further harm to the employer’s operations.
6.11. Precautionary transfer, on the other hand, allows an employee to continue working but in a different environment, mitigating risks without entirely removing the employee from active duty.
6.12. Suspension is for a maximum period of three months. There is no time frame attached to the transfer.
6.13. The Respondent’s assertion that no specific timeframe applies to the transfer is unsubstantiated. In its correspondence to the Applicant, the respondent explicitly mentioned 90-day period, furthermore, the Collective Agreement mandates that the employer must make every effort to conclude the disciplinary enquiry within one month of the suspension or transfer.

6.14. The Respondent argued that the Applicant was responsible for delaying the process by invoking Section 188A, however this argument holds no weight, as the Respondent was already out of time by that point.

6.15. Considering all the above, it is evident that the Respondent exceeded the 30-day period stipulated in the Collective Agreement and further went beyond the 90-days outlined in their own letter of precautionary transfer.

6.16. I therefore find that the Applicant has successfully proven an unfair labour practice in this regard.

6.17. The Applicant further raised the issue that she was not afforded an opportunity to make representations prior to her transfer. In terms of the Constitutional Court judgement in Long vs SAB, the Constitutional Court has recognised that there is no need to provide an employee with the opportunity to make representations prior to her suspension provided that the suspension is on full pay and is implemented as a precautionary measure, of course the Constitutional court did underline the fact that such suspension must be for a reasonable period. Given that the Collective Agreement treats suspension and transfer as nearly equivalent, it is reasonable to conclude that the same principles apply to transfers.
6.18. The Respondent contended in its closing arguments that the Commissioner lacked jurisdiction to arbitrate the matter, asserting that the Applicant’s referral was premature. However, this argument is unsubstantiated, as the Respondent had already exceeded the prescribed timeframes for concluding the disciplinary enquiry.
6.19. According to the Labour Relations Act (LRA), disputes must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) /Bargaining Councils within specific timeframes. A premature referral occurs when an employee lodges a dispute before the prescribed timelines set by legislation become applicable.
6.20. In this case the Applicant was placed on precautionary transfer on the 10th of May 2024, with the Respondent indicating a 90-day period for concluding the disciplinary enquiry. This period lapsed on the 9th of August 2024 without resolution. Furthermore, the Collective Agreement stipulates that the employer must make every effort to conclude the disciplinary enquiry within one month of the suspension or transfer. The respondent’s failure to adhere to these timeframes renders the Applicants referral to the Bargaining Council appropriate and timely. Therefore, the ELRC possesses the requisite jurisdiction to arbitrate this matter.

1.1. I accordingly find that the precautionary transfer of the Applicant is unfair. The Respondent has not complied with its own policies and Collective Agreement relating to transfer in that the precautionary transfer took longer than 90 days.

7. AWARD

7.1. In the premise I make the following order.

7.2. The Respondent is ordered to reinstate the Applicant to her position as Principal of Daveyton Skills Centre (School) effectively on the 1st of February 2025.

GCINA MAFANI
Arbitrator 24 January 2025
ELRC 513-24/25 GP