IN THE EDUCATION LABOUR RELATIONS COUNCIL

In the matter between

Legopelo Molatlhegi Jacob Applicant

And

Education Department of Northwest Respondent

ARBITRATION AWARD

The venue of Arbitration: Rustenburg

Date: 01 July 2024

Parties present:

Arbitrator: Mr Chance Khazamula

Applicant Representative: Mr Tebogo Phapogo – Legal Rep
Applicant: Mr MJ Legopelo
Employer’s Representative: Ms Boitumelo Phaswane
Interpreter: Ms Mahlori Kubayi

DETAILS OF HEARING AND REPRESENTATION

1. The matter was an unfair labour practice dispute in terms of Section 186(2) (b) of the Labour Relations Act, 66 of 1995 (“the ULP”) and Part C of the Education Labour Relation Council’s constitution (“the ELRC”).

2. The dispute was set down for arbitration before me on 12 December 2023 and continued intermittently until it was concluded on 13 June 2024.

3. The Applicant, Legopelo Molatlhegi Jacob was represented by a legal representative Mr Tebogo Phapogo whereas the Respondent, Education Department of Northwest was represented by Ms Boitumelo Phaswana a Labour Relations Officer of the Respondent .

4. The Parties submitted oral opening statements and submitted the bundles of documents as evidence. The Applicant’s bundle of documents was labelled bundle “A” and the Respondent was labelled bundle “R”.

5. The proceedings were digitally recorded and where applicable the services of the ELRC interpreter were used.

6. Parties further submitted written closing arguments as per the agreed date.

ISSUE(S) TO BE DECIDED

7. I have to determine whether the Respondent has committed an act of unfair labour practice or not. In doing so, I must determine the following;

7.1. Substantive Fairness: Whether the Applicant failed to attend the staff meetings called by the Respondent’s Principal or not and whether the sanction imposed by the Respondent against the was appropriate or not.

7.2. Procedural Fairness: Whether the Respondent failed to consult with the Applicant’s trade union when instituting the disciplinary process against the Applicant who was a site shopsteward or not.

7.3. The relief sought by the Applicant for the charge to be set aside and to be reimbursed the one (1) month salary deducted by Respondent as a sanction.

BACKGROUND TO THE ISSUE

8. The Applicant was appointed by the Respondent as an Educator, post level 1 at Sunrise View Primary School (“the school’).
9. The Applicant was charged with two (2) allegations of misconduct and following a disciplinary hearing, he was found guilty on one (1) allegation . The Respondent thereafter imposed a sanction of a fine equivalent to one (1) month’s salary against the Applicant.

10. The Applicant aggrieved with the sanction, referred a dispute of ULP to the ELRC.
11. I was thereafter appointed by the ELRC to arbitrate the dispute.

SURVEY OF EVIDENCE AND ARGUMENT

The Applicant’s Testimony and Evidence

12. The Applicant testified in his evidence in chief that on numerous occasions he asked for permission not to attend the staff meetings because he had to fetch his daughter at another school where she was attending.

13. The Applicant testified about the procedure to be excused for attending a meeting which was an agreed procedure between school management and educators in that a letter must be written if anyone seeks permission not to attend the staff meeting.

14. The Applicant followed the procedure on the meetings as specified in page 11 of bundle R and permission was granted orally on all occasions.

15. The Principal of the school engaged the Applicant to address him on his apologies not to attend the meetings and he told the Principal that he was staying out of town and there was no transport at the school where his daughter was attending. After that, the Principal did not respond to him.

16. The Applicant further testified that he was appointed as a SADTU site shopsteward in 2018 and he was recognised at the school as a site shopsteward. The Applicant attended trade union meetings with permission from the Principal.

The Respondent’s Testimony and Evidence

17. The Respondent’s only witness Ms Lesego Lorraine Modise (“the Principal”) testified that she was the Principal of the school. The Applicant reported to the departmental head on curriculum matters and he reported to her as the Principal. The Applicant was employed before by the school as a temporary educator and he was appointed permanently in 2016.

18. The Principal reported the allegations against the Applicant because the Applicant was not attending staff meetings. There were numerous interventions by her, the Respondent’s official from the district and SADTU officials to address this issue with the Applicant. The Applicant’s reason was that he was fetching his child at another school.

19. The Principal detailed the procedure if anyone was unable to attend the staff meeting that was agreed upon by all staff members. The Applicant would drop the letter at the reception while the meeting was in progress which was not according to the procedure.

20. The Applicant attended the meetings during the period of his temporary employment however he stopped attending the meetings regularly after he was employed permanently. His reasons for not attending the meeting were discussed with him to make possible measures to attend the meetings and he confirmed that he would make necessary arrangements but failed to do so.

21. The Applicant’s reasons that there was no transport in the area where his child was learning were not true because there were other learners who were going to that area.

22. The Applicant was not given permission not to attend the meeting because she was the one who was supposed to give the Applicant permission on the days in question. Permission must be sought before the meeting commences but the Applicant would submit the permission request after the meeting had commenced.

ANALYSIS OF EVIDENCE AND ARGUMENTS

23. It was a common cause among the Parties that the Applicant did not attend the meetings as per the allegation however the Applicant’s defence was that he had valid reason. On numerous occasions, he sought permission not to attend the staff meeting because he was supposed to collect his daughter at another school.

24. The Applicant confirmed in his evidence in chief that there was a procedure to be followed when a person was unable to attend the meeting and the Principal expanded on that procedure and various reasons for non-attendance of staff meetings.

25. Importantly, the Principal submitted that the letter must be written before the start of the meeting requesting permission not to attend. After permission has been granted, this will be recorded in minutes under the apologies. The Applicant did not dispute the procedure.

26. The Applicant’s cross-examination of the Principal was focused on how the permission request letter was approved or rejected and the Principal provided plausible evidence that the permission had to be sought before the meeting could commence so that apologies could be registered in the minutes. The Principal’s testimony was credible in that the Applicant did not follow the procedure when he was unable to attend the meeting.

27. In cross-examination, the Principal testified that staff meeting dates were adopted in advance and the Applicant’s reason that he was collecting his child could not be considered urgent. The Applicant had to write a letter in advance and the letter was subjected to approval which was not the case for the days in question.

28. Regarding the Applicant’s letters, the Principal did not respond to them because they were submitted after the meeting had started and she would find the letter after the meeting had been concluded.

29. I find that on the balance of probability the Applicant not only failed to attend the meeting but he deliberately attempted to circumvent the procedure by submitting letters requesting permission not to attend and submitting them after the meeting had commenced because he knew that the permission would not be granted for the reasons relating to his child as it was discussed with him before by the Applicant’s trade union official and the Respondent’s officials.

30. The importance of the staff meeting was not disputed by the Applicant. The Principal testimony that there was transport available in the area where the Applicant’s child was attending also was not disputed. The testimony of interventions to address the Applicant’s failure to attend staff meetings was also not disputed.

31. Considering the above, I find that the Respondent did all it could to address the Applicant’s conduct of not attending the meetings including the reasons he advanced. The concern was that the Principal testified that the behaviour started after the Applicant was appointed permanently and that he would attend all meeting invites by the trade union. This version was not disputed and therefore it appears that the Applicant did not attend the staff meeting deliberately.

32. Regarding procedural unfairness, the only dispute was that the trade union was not consulted when the Respondent instituted discipline against the Applicant as a site shopsteward. The Applicant’s version was that the Principal was aware that he was a site shopsteward however in cross-examination he conceded that the Respondent’s district was the one which administered his disciplinary process. The Principal also testified that she only reported the charges to the district.

33. It was a fact that the Applicant was represented by a trade union representative however the Applicant did not prove that this procedural requirement was raised during the disciplinary enquiry. In cross-examination, the Applicant submitted that his representative raised the procedural requirement to the disciplinary hearing presiding officer however he could not sustain this version under further cross-examination. The Applicant’s evidence was that he was not well represented by the trade union and I view this as an attempt to shift the blame to his representative. His position as site shopsteward was an aggravating factor because even if his representative did not raise the issue, it would be expected that he would have raised however he elected not to do so.

34. There was no evidence to suggest that the Applicant had suffered prejudice because the procedural requirement to consult with the trade union was not adhered to by the Respondent. I agree with the Respondent that the fact that he was represented by a trade union representative it could reasonably be concluded that the trade union was aware that its official was disciplined. I, therefore, find that the Applicant failed to prove on the balance of probability that the Respondent did not follow proper procedure and that the Applicant has suffered prejudice.

35. In conclusion, the Applicant did not provide any submission on why the sanction was not reasonable. In my view based on the allegation and the evidence the sanction imposed by the Respondent could have been far more serious than what was imposed by the Respondent.

36. I find that the Applicant failed to prove on the balance of probability that the Respondent committed an act of unfair labour practice both procedurally and substantively. I also find that the sanction imposed by the Respondent was appropriate and the Applicant’s application of unfair labour practice should be dismissed.

37. I, therefore, issue the following award;
AWARD
38. The Applicant failed to prove the alleged unfair labour practice against the Respondent.
39. The Applicant’s application of unfair labour practice is dismissed.
40. The ELRC is directed to close the file.

Chance Khazamula
ELRC Panelist
Date: 01 July 2024