IN THE EDUCATION LABOUR RELATIONS COUNCIL

In the matter between

SAOU OBO C BARNARD Applicant

and

DEPARTMENT OF EDUCATION- GAUTENG Respondent

AWARD

Venue of Arbitration : Department of Education – Benoni

Date of Arbitration : 06 December 2023

Arbitrator : Mr C Khazamula
Applicant Representative : Mr D Nel
Employer’s Representative: Mr P Nkosi

DETAILS OF HEARING AND REPRESENTATION

1. The dispute was an Unfair Labour Practice relating to alleged unfair suspension referred to in terms of section 186(2)(b) of the LRA and Part C of the ELRC constitution.

2. The proceedings were held on 06 December 2023 at the Respondent’s premises in Benoni.

3. The Applicant was represented by Mr D Nel, a trade union official of SAOU and the Respondent was represented by Mr P Nkosi an official of the Respondent.

4. The proceedings were electronically recorded.

ISSUE TO BE DECIDED

5. I have to decide whether the three-month requirement in terms of EEA applied to the Applicant when he was placed on a precautionary transfer or not.

BACKGROUND TO THE DISPUTE

6. The Applicant was placed on a precautionary transfer on 11 July 2023 in terms of schedule 2, item 6 of the Employment of Educators Act 76 of 1998 (“the EEA”) by the Respondent pending disciplinary action.
7. It was a common cause that the sixty days had lapsed and the Applicant declared a dispute of Unfair Labour Practice relating to suspension. The matter was referred to me for arbitration.
8. On 06 December 2023, the Parties agreed to submit written heads of arguments on or before 15 December 2023.

PARTIES’ SUBMISSION/ARGUMENTS

The Applicant
9. The Applicant alleged that the Respondent committed an act of Unfair Labour Practice because according to the EEA, he was required to remain on suspension for three months however he was still under suspension.

The Respondent
10. The Respondent submitted that the three-month requirement in terms of the EEA dealt with suspension. The Applicant was not suspended but placed on a precautionary transfer and therefore the three-month suspension was not applicable. The Applicant was performing work without loss of remuneration.

ANALYSIS OF PARTIES’ SUBMISSION/ARGUMENTS

11. Item 6 (1) of the EEA reads “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”.

12. It was not in dispute that the Applicant was transferred to another school and the duration of that transfer exceeded three months. Sub-item 1 of the EEA only refers to suspension not transfer.

13. The word “transfer” is found in sub-item 2 of the EEA and it reads: “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”. (Bold & underline are my emphasis).

14. When reading sub-item 2 of the EEA it was clear that suspension and transfer are different and serve different purposes. The suspension per sub-item 2 of the EEA would be effected in case of misconduct in terms of section 18 of the EEA and must be on full pay for a maximum period of three months.

15. Generally, the Director General or the Head of Department may transfer any educator in the service of the relevant department to any post or position in any other department of State with the prior approval of the person in that other department of State having the power to appoint or to transfer and with the consent of that educator . The Applicant was transferred in accordance with sub-item 2 of the EEA however the emphasis is that the employer had the right to transfer albeit in this case by invoking sub-item 2 of the EEA.

16. According to sub-item 2 of the EEA after or (“the second part of sub-item 2”), the transfer would be effected by the employer for two purposes namely: (1) if the employer believes that the presence of the educator may jeopardise any investigation into alleged misconduct or (2) endanger the well-being or safety of any person at the work-place.

17. According to the Applicant’s precautionary transfer letter , the Applicant was placed on a precautionary transfer by the Respondent with reasons that are compliant with the second part of sub-item 2 of the EEA.

18. Sub-item 3 (a) of the EEA read: “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”. It was a common cause the Applicant was placed on the precautionary transfer because the Respondent alleged that the Applicant committed misconduct.

19. According to the Applicant’s precautionary transfer letter, the Applicant was placed on a precautionary transfer for three months. If the Respondent argues that three months does not apply to a transfer which I agree with, then on what basis does the Respondent place the Applicant on a precautionary transfer for three months? I am stating this because the last part of sub-item 2 of the EEA is silent on the validity period of the transfer.

20. Sub-item 3 (a) of the EEA was prescriptive to the Respondent to do everything possible to conclude a disciplinary hearing within one month of the suspension or transfer. It therefore means the Respondent after placing the Respondent on a precautionary transfer, the Respondent had to do everything possible to conclude a disciplinary hearing within one month of the precautionary transfer.

21. Sub-item (3) (b) of the EEA read: “The presiding officer may decide on any further postponement. Such a postponement must not exceed 90 days from the date of suspension. I find that this sub-item does not deal with transfer but with suspension”. The word “transfer” was omitted and I find that this sub-item applies to cases where an employee was suspended.

22. Sub-item (3) (c) of the EEA read: “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”. The purpose of this sub-item in my view was that the suspension of an educator was limited to three months with pay in terms of Item 6 (1) of the EEA, hence the employer must enquire from the presiding officer what the reason for the delay i.e. (to avoid unreasonable delays to prolong the suspension with pay) and the right to give direction for the speedy conclusion the proceedings in a case where the proceedings were not concluded within ninety days.

23. When applying sub-item 3 (c) of the EEA the employer must allow an educator to make representation and after that may direct that further suspension be will be without pay .

24. I find that the EEA does not provide a limit for the transfer except that the employer must do everything possible to conclude a disciplinary hearing within one month. It was a common cause that the Respondent did not conclude a disciplinary hearing within a month and therefore it appears that the Respondent may not have complied with sub-item 3 (c) however I cannot make a finding in this regard.

AWARD

25. I, therefore, issue the following award:

25.1. The Applicant was not placed on a precautionary suspension but on a precautionary transfer.
25.2. The maximum period of three-month suspension requirement in terms of EEA does not apply to the Applicant.
25.3. The Applicant’s application for unfair labour practice relating to suspension is dismissed.

Chance Khazamula
ELRC Panelist
Date: 24 January 2023