29 August 2025 -ELRC183-25/26NW

ARBITRATION AWARD

Commissioner: NTATE MABILO
Case No.: ELRC183-25/26NW

Date of Award: 28 August 2025

In the ARBITRATION between:

SADTU OBO Ndamase, Abuyile Andile
(Union / Applicant)

and

Education Department of North West
(Respondent)

Union/Applicant’s representative: Bongi Malinga of SADTU
Union/Applicant’s address:

Respondent’s representative: David Billy Seakgosing, Employee of the respondent.
Respondent’s address:

DETAILS OF HEARING AND REPRESENTATION:

The arbitration of the alleged Unfair Labour Practice dispute between SADTU obo Ndamase, Abuyile Andile (Applicant) and the Education Department of North West (Respondent) was held under the auspices of the Education Labour Relations Council (“ELRC”), virtually on 18 July 2025 and 05 August 2025.
The applicant was represented by Bongi Malinga of SADTU and the respondent was represented by David Billy Seakgosing, an employee of the respondent.
The proceedings were conducted in English and were manually and digitally recorded.
PRELIMINARY ISSUES
There were no preliminary issues raised.
ISSUES TO BE DECIDED
I am required to determine whether the respondent acted unfairly in the suspension of the applicant or not, and if so to determine the remedy.
Relief sought was the lifting of the suspension/ transfer.
BACKGROUND TO THE DISPUTE
8.The applicant started working for the respondent from 09 February 2023.
His latest position was Educator Post Level 1.
He was earning a monthly salary of R29 331.00.
The respondent was the Education Department of North West.
SURVEY OF EVIDENCE AND SUBMISSIONS:
Applicant party submissions:
The applicant, Abuyile Andile Ndamase testified under oath and stated the following:
The applicant started by reading the alleged misconduct which led to his suspension, which included his transfer to Tlhatlolelo Teachers Centre till further notice.
He was transferred on 21 February 2025 and as at the date of hearing he was still on suspension/transfer. The suspension/transfer had been too long and it lasted for 5 months to date instead of the 3 months provided for in the disciplinary code.
The witness referred to section 6 sub-section 1 of the Employment of Educators Act 76 of 1998, which provided that ‘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’. Again, reference was made to sub-section 3(a) of the same section which read as follows: “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”.
Since his suspension/transfer, no one from the employer ever came to talk to him. He was not given anything to do and every working day he would go to the Centre and do nothing. No charges had been served and the suspension/transfer continued.
He was mentally exhausted and that was not good for his health.
Under cross examination was taken through the letters of complaints from the learners and asked whether that was a long time. He replied that the prescripts stated three months as maximum and the disciplinary hearing to be completed in one month.
He confirmed that he was transferred on full pay. When asked where did the employer go wrong he replied that the process had taken too long.
It was put to the witness that the employer was fair to suspend/transfer him and he replied that it was not fair to keep him under suspension for longer than three months.
Respondent party submissions:
The respondent party was afforded an opportunity to testify under oath and unfortunately did not have any witness. We agreed to conclude without their evidence as they had enough time to prepare.
Seeing that it would dent the process, I issued a directive for the parties to appear before me on 05 August 2025 for purposes of hearing the respondent party under oath. On the 5 August 2025, only the applicant party attended. The case was finalized without respondent testimony under oath.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
The dispute was referred as unfair labour practice in terms of section 186(2) (b) of the Labour Relations Act 66 of 1995 as amended. According to the LRA there are specific actions that constitute unfair labour practice and they are stated as follows:

(a) unfair conduct by employer relating to the promotion, demotion, probation, training or provision of benefits.
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee.
(c) failure or refusal by an employer to re-instate or re-employ a former employee in terms of any agreement.
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act of 2000.

The applicant’s matter is directly linked to subsection (b) above.
I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and determination of the dispute.
In the case at hand, the applicant’s version is that he was suspended/transferred on 20 February 2025 and at the time of the hearing he was still on suspension/transfer. According to the disciplinary code the maximum period of suspension was supposed to be three months, yet five months had passed and he had not even been served with charges. What was seen as precautionary suspension had now become punitive. In the process the applicant was suffering humiliation.
The respondent party failed to testify under oath despite being given ample opportunity to do so. From their cross examination of the applicant’s evidence, they are pursuing a version that the applicant suffered no prejudice because he was suspended/transferred with full pay. They stated that the misconduct was of a serious nature as it affected alleged sexual harassment of learners. However, investigations were at advanced stage.
Flowing from the above, it is clear that the allegations were of a serious nature. However, the case at hand was not about the merits of the allegations but the prolonged suspension/transfer. According to section 6 (1) read with (3)(a) of Employment of Educators Act 76 of 1998, the maximum period of suspension was three months and the employer must conclude disciplinary hearing within one month or two months at the most. These provisions had been reduced to a disciplinary code in terms of Resolution 1 of 2003 and they are a collective agreement which remains binding to the parties.
It is important to note that we are not dealing with an ordinary precautionary suspension in this case. The case that led to the suspension/transfer was about alleged sexual harassment of learners. The process to deal with cases of sexual harassment of learners had been provided in a separate ELRC Collective Agreement 3 of 2018, and it is mandatory.
The respondent had stated that investigations were at an advanced stage. The case should therefore be almost ready for hearing. This must be fast-tracked and a proper procedure must be followed. While understanding the frustrations on the part of the applicant, the nature of the alleged misconduct dictate that a proper hearing be held in the interest of all parties.
On the basis of the above, I am persuaded to believe that the case be directed to enquiry by arbitrator through the process outlined in the collective agreement and it be fast-tracked.
Based on the above facts and all other evidence considered, I conclude with the following award:
Award:
The prolonged suspension/transfer is not condoned but understood in the context of the nature and seriousness of the alleged misconduct.
The Department of Education: North West is directed to finalize the investigation and refer the matter to the council by filing form E12. The council will take over the internal hearing and institute an enquiry by arbitrator as prescribed in clause 3.2 of ELRC Collective Agreement 3 of 2018. The referral to the council should be concluded by 30 September 2025.
The Department of Education: North West is required to oblige.