28 July 2023 – ELRC108-23/24LP

Commissioner: Ramadimala Jacky Mateta
Date of Award: 26 July 2023

In the ARBITRATION between

Ramathole Tebogo Raoni
(Union/Applicant)

And

Department of Education-Limpopo
(Respondent)

Union/Applicant’s representative: Mr. Thobja Monyai (SADTU Official)
Union/Applicant’s address: P.O. Box 2103
Polokwane
0700

Telephone: 015 291 5418
Telefax: 015 291 1667
E-mail: Ramstr2014@gmail.com

Respondent’s representative: Ms. Potia Modipa (Assistance Director, Grievances and Disputes)
Respondent’s address: Private Bag x9489
Polokwane
0700

Telephone: 015 290 7600
Telefax: 015 297 6920/4494
E-mail: Portiamodipa10@gmail.com

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were held and were finalized on the 11th of July 2023 at the Department of Educations’s Voorwards offices in Polokwane.
2. The applicant, Mr. Tebogo Roan Ramathole (“Applicant” hereinafter) was present and dealt with his matter represented by Mr. Thobja Monyai, a National Negotiator from SADTU.
3. The respondent party, Department of Education-Limpopo (“Respondent” hereafter) was also in attendance and was represented by Ms. Portia Modipa, Assistant Director, Grievance and Dispute of the respondent.
4. The arbitration proceedings followed only an adversarial approach as both parties were sufficiently represented in the proceedings.
5. Parties requested for submission of written closing arguments and were given until the 18th of July 2023 to do so. At the time of the writing of this award, written closing arguments were received.
6. The arbitration was recorded both electronically and manually. Bundles of documents were received from both the applicant and the respondent. The applicant’s bundle was marked bundle R while the respondent’s was marked bundle A.

BACKGROUND TO THE MATTER:
10. Parties did not hold a Pre-Arb meeting and for that reason they were required to submit opening statement before starting with the arbitration hearing.

11. From the opening statements of the parties, it became apparent that they agreed that it was not in dispute that the applicant is still an employee of the respondent. At the time of an act that is alleged unfair labour practice dispute, he was occupying the position of a Deputy Principal at Megoreng Primary School, Mankweng Circuit in Capricorn South District, earning R40 398.62 salary per month.

12. The applicant was charged with one count of misconduct, appeared before a disciplinary hearing where he was found guilty and was issued with three months suspension without pay as a sanction.

13. The charge referred to above is contained in the bundles documents, page 11 of A and were as follows:

“Charge 1: You contravened the provisions of Section 33(1) (b) of the Act in that, on or around 01 November 2021 or any period incidental thereto, at or near Lepelle Nkumpi Local Municipality, you worked as a Ward Councillor at Lepelle Nkumbi Local Municipality and therefore performed remunerative work without the approval of the Member of the Executive Council.”

14. It is common cause that the charge is in terms of Section 33 of the Employment of Educators Act, 76 of 1998.

15. It is also common cause that the charge came after an investigation that was conducted by the respondent on an alleged incident that the applicant was found to have been working as a ward councillor for Lepelle Nkumbi Municipality without the approval of the Head of Department.

16. The applicant was found guilty as charged and a penalty imposed was a sanctions, suspension without pay for three months.

17. The applicant contended that it amounts to an unfair labour labour practice as he is not guilty and also that should it be found that he was guilty on any of those charges, the sanction that was imposed was not appropriate in the circumstances of his case.

WHAT TO BE DETERMINED
10. It is the respondent’s case that the disciplinary action taken against the applicant does not amount to an unfair practice as the applicant was found guilty and that the sanction given to applicant was an appropriate sanction.

11. It is the applicant’s case that he was not guilty as he has disclosed and informed the respondent about his nomination as a ward councilor, and also sought an approval to perform remunerative work outside his work. The applicant also contended that even if it were to be found that he is guilty, the sanction is too harsh therefore, rendering the disciplinary action short of dismissal, an unfair labour practice. The applicant is praying for an order that the respondent should refund the salary that was lost to an amount of R121 195,86.

12. I was therefore required to determine whether the respondent committed an unfair labour practice to the applicant and if so, to determine whether suspension for three months without pay was not an appropriate sanction under the circumstances of the case.

13. If not found any one of the above, I was also required to determine an appropriate remedy requested by the applicant.

SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case
Evidence:

14. Mr. Tebogo Raon Ramathole testified as the only witness in his mater. The summary of his evidence is that he was charged by the respondent and he denies the charge. He referred and read charge appearing in page 11 to 12 of A. He stated that he is not guilty as charged, the reason being that he was nominated in his ward for a position of a ward councilor’s. He was during that time employed as a departmental head at Magaputsi Secondary School.

15. After his nomination he was issued with a certificate by the IEC. Normally if one is nominated as a candidate, and he/she is an employee in the Public Service, one must use that certificate to apply for leave. He then submitted a leave form wherein he attached a certificate and a covering letter. He stated in his leave form and a covering letter that he was applying for leave and also to perform a remunerative work outside the Public Service. The letter is not contained in his bundle of documents as when he went to Magaputsi Secondary School, he was informed that the letter is no longer there as it was submitted to the Circuit office.

16. The letter that he submitted was in line with a circular issued by the Office of the Premier, circular no. 3/10/1 issued on the 1st of October 2021 (page 16 of A). He referred to paragraph 3 and 4 and read it as follows,” 3. An employee appointed as a permanent delegate of the National Council of Provinces shall be deemed to have resigned from the public service with effect from the date immediately before the date, he/she assumed office as such delegate. 4. An employee elected as a member of the Municipal Council- (a) may only remain an employee in the public service if he/she serves as a part-time member of the Council and (b) shall comply with section 30 (1).

17. After the elections, he was successful and wrote a letter in page 15 of A. he referred paragraph to 2 and 3 of the letter and read it as follows; “The IEC Certificate which I submitted to your office which indicated that I will be participating in the LGE 2021. I have been elected as a ward councilor and accepted nomination. I am elected as a part-time councilor which in line with circular 32 of 2021 as released by office of premier in Limpopo province cause 4(a) and I will comply with section 30(1) PSA, leave form will always be completed as an when I have to attend my duties”. He did not receive any response for the letter.

18. At that time, he had applied for a position of Deputy Principal at Megoreng Primary School. Upon being appointed as a Deputy Principal at Megoreng Primary School, he informed the principal that he is performing work outside his duties. In June 2022, the principal of Megoreng Primary School, Ngele M.M asked him as to how far he was with his application to perform remunerative work outside. He informed her that he had not as yet received any feedback and she told him that he must make some follow-up.

19. In the process, a new principal was appointed at Magaputsi Secondary School. He made a follow-up and only to find out that Mr. Mathonsi did not have any information. He then went on to find information and only to be informed that there is a prescribed form that needed to be filled in every 12 months. He found the form, completed it together with a covering letter and submitted to the principal of Megoreng Primary School, Ms. Ngele M.M. on the 2nd of August 2022. (Page 19 of A).

20. On the 1st of September 2022, Mr. Mojapelo, Labour Relations Officer of Capricorn South District came to the school and wanted to have a discussion with him. He was having his application form to perform a remunerative work and a letter from the ANC. He wanted to know what his (applicant) application was in relation with the letter from the ANC. He explained to Mr. Mojapelo that what the ANC wrote in the letter is as internal process in the ANC and has nothing to do with his application.

21. Mr. Mojapelo left and he since did not receive a response. He (applicant) then went to Provincial Head Office of the respondent to enquire and was informed that the form was supposed to be submitted to the Ethics Division of the respondent and that office has not yet received his application. He then requested for an e-mail and immediately e-mailed the application form but still did not receive any response.

22. He assumed the position as ward councilor because the circular (page 22 of R) providing for the application in its paragraph 3(b) states that if the application is submitted and one does not get a response after 30 days, he/she must assume that the approval was granted. It is not correct that he assumed the position without approval. He did not commit any misconduct and suspension without pay is therefore an unfair labour practice.

23. Under cross-examination, he stated that he started working as councilor in November 2021 and submitted his application on the 3rd of December 2021. He agreed that there was no acknowledgement of the letter on page 15 of A. He argued that the permission was received as per the deeming provision of the PAM. He conceded that the form on page 19 to 29 of A was only completed and submitted on the 2nd of August 2022. He denied that he only started applying in August 2022 way after started performing remunerative work and argued that that was the second application. He however conceded to have stated that he only completed a prescribed form in August 2022.

24. He argued that he complied with paragraph 4 of the circular. He conceded to have stated in his letter that he would comply with section 30 (1) of the Public Service Act as the Act further states that if a response is not received after the expiry of 30 days, he must assume that his application was approved. He disputed that the letter in page 13 of R was written and given to him by the principal of Megoreng Primary School. He stated that he declared to the principal of Megoreng both verbally and in writing. He however could not produce any letter written to Megoreng Primary School and argued that the letter was already written to the principal of Magaputji Secondary School. He conceded that the letter was not an application to perform remunerative and argued that the first letter has stated. He conceded to have not provided such a letter.

25. Mr. Marilele Eric Mathonsi testified. The summary of his evidence is that he is a departmental head at Magaputji Secondary School. During the time as an acting principal at Magaputji Secondary School, the applicant was nominated as a ward councilor. The applicant was by then the departmental head at the school. At the school there was a culture that when one is nominated as a ward councilor candidate, he/she must apply for leave to canvass. The applicant came to him and submitted a leave form with the certificate from the IEC.

26. The application was submitted to the circuit office. After elections the applicant came to him submitted a letter from the ANC and saying that he won the election. He then filed the letter in the applicant’s individual file. He had since not received any response to the letter that he submitted to the circuit office. In the bundle that he received from the applicant it was a leave form, the IEC certificate and the letter stating that was nominated as a ward councilor.

27. Under cross-examination, he stated that he received a letter from the applicant, the leave application to leave the school and attend meetings. He agreed that the applicant in his letter on page 15 of A stated that he would comply with section 30(1) of the Public Service Act. He however did not know what section 30(1) was providing. He stated that he did not know if the applicant had received a permission from the Executing Authority. He stated that the application that he received and submitted to the circuit was recorded in the registers, one for receipt and another for submission to the circuit. He could however not produce any of those registers.

Respondent’s case.

28. Mr. Magdeline Maza Ngele testified. The summary of her evidence is that at she is the principal of Megoreng Primary School, the respondent institution where the applicant a deputy principal.

29. She referred to the letter in page 13 of R and explained that it is a letter that she wrote to the applicant on the 2nd of August 2022. The reason why she wrote a letter was that she had a discussion with him on the 1st of August 2022. In the discussion she wanted to know if the applicant had received permission to perform remunerative work.

30. The discussion of the 1st of August 2022 was a culmination of the other discussion that she had with him in March 2022. In March 2022, she had a problem with the applicant’s absence from the school, leaving the school before time and late coming. When she asked him the reason the applicant indicated to him that he was a ward councilor. She enquired form the circuit if that was allowed and she was told that it is only when one was permitted. Prior time of the incident, he was the District Executive Manager of Mopani. He was a direct supervisor of the applicant.

31. The discussion was prompted by the fact they had district team visiting the school. The applicant was attending a course and the district raised concerns about his attendance. The applicant started working as a councilor in November 2021. She received his application on the 2nd of August 2022.

32. The was then charged for misconduct (page 10 to 12 of R). She read the charge and explained that the charge stated that he contrived section 33 of the EEA. The charge is in view a fair decision as the applicant was supposed to have given an approval to perform any remunerative work outside his scope of work. She expected the applicant to have given it to her when resumed work at Megoreng Primary School. The applicant only submitted the declaration (page 15) together with a letter after the discussion on the 1st of August 2022. It can only be assumed that the applicant’s 1st application was received on the 2nd of August 2022.

33. She referred to the applicant’s letter which states that the applicant was saying that he shall comply with section 30(1) of the Public Service Act. The letter imply that the applicant did not comply before. She then took the applicant’s application and submitted to the circuit office. After submission the department sent Mr. Mojapelo, Labour Relations Officer to the school. The applicant did not comply because section 30 also states that remunerative work must not be done during working hours. The applicant was ever absent from work and for that reason, the HOD was not unfair in charging the applicant and gave the sanction.

34. Under cross-examination she agreed that she only started working with the applicant from the 11th of January 2022 and cannot attest to what he did while at other school. She could not comment on the applicant’s version that after his nomination the applicant wrote a letter and informed his supervisor that he was nominated and that should he be successful in election he would also request for permission to perform remunerative work outside his work. She also agreed that the process is that one must apply and be given permission. She also could not dispute that he applied but onus is on him supply evidence. She denied the applicant’s version that when he started at Mogereng Primary School he informed her verbally that he was a ward councilor. She argued that she only became aware when she raised her concern about his absence. She agreed that if one has applied, he/she must be given a response. She declined to comment to the applicant’s version that he applied in October 2021 and assumed that approval given under operation of section 30(3) of the Public Service Act’s deeming provision. She however argued that the only application that she saw was the one submitted on the 2nd of August 2022.

ANALYSIS OF EVIDENCE AND ARGUMENT:

As to whether unfair labour practice was proven

35. The applicant has filed a dispute and alleged unfair labour. An act that the applicant alleged to amount to an unfair labour practice is a disciplinary action short of dismissal, a three months suspension given after a disciplinary hearing.

36. In County Fair v CCMA and others [1998] 6 BLLR 577 (LC) it was held that suspension without pay is permissible disciplinary penalty where appropriate, and for a reasonable period. This view was later supported in SAB Ltd (Beer Division) v Woolfrey and others (1999) 5 BLLR 525 (LC). In SAPO v Jansen vav Vuuren NO and others (2008) 29 ILJ 2793 (LC) the court held that commissioner may only set aside suspensions imposed as a disciplinary penalty if they find on merits, that the employee was not guilty of the conduct for which he/she was suspended.

37. It is common cause that the applicant was suspended without pay for 3 months after a disciplinary hearing. It is common cause that the sanction was implemented and that the applicant has lost the three months’ salary during his suspension.

38. Whether respondent has committed guilty of an unfair labour practice depends on as to whether I find on balance of probabilities that the applicant is not guilty of contravention as alleged in the charge sheet. The applicant was charged on one count of alleged act of misconduct. The charges were as follows:

39. It is the applicant’s contention that he should have not been issued with a three months suspension as he is not guilty of contravention alleged in the charge sheet. The applicant’s contention is centered around that he actually has applied, was not given an outcome and he then resumed his duties outside as directed by section 30(3) of the Public Service Act which directs that if an employee applies for permission and 30 days expires without receiving the response from the Member of the Executing Authority, he/she may be deemed to have been permitted and therefore resume performing remunerative work outside his normal work.

40. I considered the applicant’s evidence that while he was still a departmental head at Magaputtji Secondary School he was nominated as a candidate for ward councilor; after his nomination he wrote a letter to the acting principal Mr. Mathonsi to declare to the acting principal that he was nominated as a ward councilor and also requesting for leave to perform the activities of the nominated candidates. This evidence was disputed and highly contested by the respondent. The applicant letter on page 15 of R was considered. In the letter, in its paragraph 2, the applicant is referring to the IEC certificate, not an application that purported to have requested for permission to perform a remunerative work outside his position. In the same letter in paragraph 3 the applicant states, “…I will comply with section 31(1) PSA”. The respondent argued that the context of the letter shows that at the time of writing of the letter the applicant had not yet complied with section 31(1) of PSA.

41. I further considered his evidence that upon being elected, the wrote the second letter informing the deputy principal that he was duly elected. The applicant could not produce the prove of the 1st letter. His reason was that he went to Magaputsi Secondary School and was he was informed that the letter is no longer there as it was submitted to the Circuit office.

42. Mr. Mathonsi also testified and his evidence was that during his term as an Acting principal and after the application’s nomination the applicant came to him and submitted a letter, IEC certificate and leave application form. He also could not provide the prove of submission of the letter to him and also to the circuit. The applicant was being represented. I for that reason find no reason why the applicant could not explore all available avenues to get the registers. The applicant was at that time not as yet elected. I do not find any reason that the applicant could have decided to apply for permission to perform a remunerative work which is not there yet. It is for that reason improbable that the applicant ever submitted the alleged letter.

43. I considered the applicant’s evidence that his was in line with a circular issued by the Office of the Premier, circular no. 3/10/1 issued on the 1st of October 2021 (page 16 of A) which reads as follows: ” 3. An employee appointed as a permanent delegate of the National Council of Provinces shall be deemed to have resigned from the public service with effect from the date immediately before the date, he/she assumed office as such delegate. 4. An employee elected as a member of the Municipal Council- (a) may only remain an employee in the public service if he/she serves as a part-time member of the Council and (b) shall comply with section 30 (1).

44. Section 30(1) states that, “No person shall perform or engage himself or herself to perform remunerative work outside his or her employment in the relevant department, except with the written permission of the executive authority of the department”. It is common cause that the applicant did not have a written permission from the executive authority of the department. The applicant’s contention is that he relied on section 30(3) of the Public Service Act that states that the executing authority decide whether to grant permission or not within 30 days and if 30 days expired, then the employee shall be deemed to have been given a permission.

45. As to whether the applicant submitted an application, I also considered his second letter in page 15 of A. there is nothing in that letter that seems to suggest that the letter was actually an application for permission to perform a remunerative work outside the position that he is occupying.

46. The applicant is his own evidence and version stated that he only found the information that the permission to perform a remunerative work outside the public service must be done on a prescribed form which he completed and submitted to the principal of Megoreng Primary School on the 2nd of August 2022. The respondent argued that this was the 1st time to which a proper application was submitted and that the application late after the applicant has performed remunerative work without approval for more than six months. It is the respondent’s contention that the applicant is for that reason guilty for the misconduct for which he was charged.

47. I considered the respondent’s evidence given by Ms. Ngele that on the 1st of August 2022, she had a discussion with the applicant where she enquired as to where his process of application to perform a remunerative work outside his post were. She then wrote a letter to the applicant on the 2nd of August 2022.

48. The applicant has alleged that he first reported to his new principal in January 2022 when he resumed work as the deputy principal. Ms. Ngele denied this and the applicant failed to substantiate it further. I also considered Ms. Ngele’s evidence that her discussion with the applicant started in March when she raised issues regarding his attendance in March 2022.

49. The respondent argued that the applicant’s application was only received in August 2022 when the applicant had already resumed ward councilor’s job in November 2021. The applicant also conceded to have started in November 2021 and that that was the reason the applicant was charged.

As to the charge itself what I considered is, “…on or around 01 November 2021 or any period incidental thereto, at or near Lepelle Nkumpi Local Municipality, you worked as a Ward Councillor at Lepelle Nkumbi Local Municipality and therefore performed remunerative work without the approval of the Member of the Executive Council.”

50. There is no evidence from the applicant that seems to suggest that there was any application that was made prior to 01 November 2021. The applicant resumed as a ward councilor in November 2021. At the time of resumption there was no proper application that would have given the applicant the right in terms of section 30(3) of the PSA. It is for that reason that I find that the applicant is guilty for the offences for which he was suspended.

51. There is no further evidence from the applicant that seems to suggest that if an employee is guilty for the offence for which was charged, a different sanction would be preferred. It is for that reason that I find that the applicant has failed to discharge his onus, to prove that the respondent’s conduct was unfair. The decision of the respondent was not taken capriciously and without legal and protection of labour legislations. For that reason, the applicant’s claim stands to fail.

AWARD

52. The applicant’s suspension without pay for three months issued to the applicant does not amount to unfair labour practice.
53. The applicant’s referral is dismissed.

Ramadimala Jacky Mateta