IN THE MATTER BETWEEN: ELRC1269-24/25GP
Simphiwe Moloi APPLICANT
And
Education Department of Gauteng RESPONDENT
- DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice, referred to in terms of section 186(2) of the Labour Relations Act 66 of 1995, as amended was held and finalized via teams.
1.2. At all times, both parties attended the proceedings. The respondent was represented by Nombeko Manda, while the applicant was represented by Linda Skosana, union official of SADTU.
1.3. The hearing was held in English and was digitally recorded.
- ISSUES TO BE DECIDED
2.1. Whether or not the precautionary transfer was fair. If not, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.
- BACKGROUND TO THE ISSUES
3.1. On 09 July 2024, the applicant was precautionary transferred from Rivoni Secondary School to Gauteng East District Office.
3.2. The relief sought by the applicant is that he be reimbursed for the added travelling cost he incurred by travelling from the school to the district office in the amount of R24 000.00 and to be compensated in the amount equivalent to his six (06) months salary for reputational and emotional damage.
3.3. In this matter, the following are common cause:
a) that at the time of the hearing, the applicant’s precautionary transfer was uplifted with effect from 08 April 2025.
b) that during the precautionary transfer, the applicant was receiving his full salary and benefits
c) that applicant was found not guilty after it was agreed by both parties, the applicant and the respondent, that the disciplinary hearing be closed.
3.4. Prior to the commencement of the proceedings, the applicant submitted a bundle of documents marked “A”, while the respondent submitted a bundle of documents “R”.
3.5. The applicant closed his case after leading his own evidence and one witness, while the respondent closed its case after leading the evidence of one witness.
3.6. Both parties submitted their written closing arguments on the agreed date and time.
- SUMMARY OF EVIDENCE AND ARGUMENTS
- The following is a summary of only relevant evidence submitted by both parties and which was considered to arrive at a decision in the matter.
- THE APPLICANT’S CASE
- The applicant, Sphiwe Moloi, testified that before his precautionary suspension on 09 July 2024, he was never informed about the nature of the allegations, and he was also never given an opportunity to respond to the allegations. On 26 August 2024, he received a letter of intention to transfer while already reporting at the district office. The notice to attend a disciplinary hearing was supposed to have been issued first before the precautionary suspension. From 05 July 2024, he wrote several letters to the district director, head of department and MEC of education, trying to find a solution but without any response. On 20 August 2024, the MEC responded to his letters and said they were unable to assist him. The first date of his disciplinary hearing was scheduled to proceed during September 2024, but it was postponed prior to the hearing date. After September 2024, his disciplinary hearing was postponed several times.
On 22 January 2025, the respondent submitted during the disciplinary hearing that it was no longer proceeding with the hearing because of unviability of witnesses. His transfer was also extended twice and without him being given an opportunity to make a presentation. During his precautionary transfer, he was not allocated any duties to perform or an office to sit. While at the district office, he would just play games on his cell phone until he knocks off. On 09 October 2024, a WhatsApp message circulated at the district office stating that a deputy principal who lodged a complainant against a colleague was gunned down while on his way to meet the respondent’s investigator. The WhatsApp message made his life miserable because his colleague at the district office probably thought he was involved in the shooting of the deputy principal. His kids also suffered emotionally because the news of the killed deputy principal was all over. The Gauteng MEC for Education also made a media statement regarding the deceased deputy principal. Although his name was never mentioned as a suspect, the WhatsApp message and the MEC media statement made his life to be at risk because he suspected that people close to the deceased deputy principal would point a finger at him and wanted revenge. The travelling between the school and the district office added few kilometers to his normal travelling and as a result he had to pay more for his travelling to work, district office in the amount of R24 000.00. Because the allegations levelled against him and the precautionary transfer, his reputation was affected, and he also suffered emotionally.
5.3. Under cross-examination, the applicant testified that during his precautionary transfer, his salary and benefits were fully paid. The terms and conditions of his employment were changed because he was no longer teaching but just sitting and doing nothing. Before his transfer, he was never given an opportunity to make representations. The district office is few kilometers away from the school. The letter of precautionary transfer only stated the allegations levelled against him. He received the letter from the Department distancing itself from the WhatsApp message that was circulating regarding the assassinated deputy principal, the complainant. The WhatsApp message was circulated from the district office, but the author is unknown.
5.4. The applicant’s only witness was Eric Mokasi. He testified that he is currently under precautionary transfer. He is currently reporting at the Gauteng district office since 14 June 2024. Since he started reporting at the district office, he was never allocated any duties to perform or office to sit. The applicant started reporting at the district office after him.
5.5. Under cross-examination, Eric Mokasi, testified that the allegations levelled against him are totally different from those of the applicant.
6. THE RESPONDENT’S CASE
6.1. The respondent’s only witness was Kgomotso Tshiovhe. She testified that the allegations against the applicant were first reported to the district office and then escalated to the head office for investigations. Because the applications against the applicant were very serious, the head of department approved that the applicant be precautionary transferred. The applicant was precautionary transferred to the district office. While the applicant was on precautionary suspension, he was receiving his full salary, including all benefits, and he was never prejudiced. When the employees are precautionary transferred to the district office or different location/site, the respondent does not cover their travelling costs. If an employee experiences any challenges in terms of his/her travelling costs to the new location, he/she should contact the head office and means would be arranged to assist the said employee. The applicant never approached the district office/head office and raised his concern regarding his travelling expenses. The allegations against the applicant were never tested because the complainant was shot dead during the investigations. After the shooting of the complainant, the employees who witnessed the alleged incident, were no willing to testify against the applicant and they even requested to be transferred to different schools. Is not a legal requirement that an employee should be given an opportunity to make a representation before he/she can be precautionary transferred.
6.2. Under cross-examination, Kgomotso Tshiovhe, testified that the applicant was never given an opportunity to make representations before he was precautionary transferred because the allegations were regarded as very serious. Employees are precautionary suspended or transferred before an investigation can commence. The applicant was going to be given an opportunity to answer the allegations during the disciplinary hearing. The disciplinary hearing took long to be closed because of the challenges that happened after the shooting of the complainant/main witness. If indeed the applicant suffered financial loss because he was travelling more kilometers from his home to the district office, he could have raised the issue with the department and assistance was going to be offered to him to ease the burden. The reasons for the extension of the precautionary transfer and the delay in finalizing of the disciplinary hearing was because of unavailability of the witnesses and the reasons were communicated to the applicant. After the case/allegations against the applicant were closed, he was found not guilty. The applicant was not found guilty because the respondent failed to prove its case during the disciplinary hearing but because the case never proceeded because issues beyond its control. The applicant never presented/submitted documents/evidence to support his claim that during his precautionary transfer he was emotionally and psychologically impacted. She is based at head office, and it would be difficult to confirm or deny that while at the district office, the applicant was just sitting and doing nothing for the entire period of his precautionary transfer. After the precautionary transfer was uplifted, the applicant was not allowed to report back to his school because he was being transferred to a new school.
7. ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1 In this matter, the relief sought by the applicant as per the ELRC form E1 was the upliftment of the precautionary transfer, payment of six (06) months compensation for emotional distress and prejudice suffered and payment of travelling expenses included.
7.2. During the arbitration proceedings, it became common cause that the respondent had uplifted the applicant’s precautionary transfer with effect from 08 April 2025. Therefore, much of the evidence presented by the applicant during the arbitration proceedings was to prove the alleged emotional distress he suffered because of the pro-longed precautionary transfer and the added travelling expenses he incurred while travelling between his home and the district office. Further, during the arbitration proceedings the relief sought was six (06) compensation for reputational and emotional damage and reimbursement of the extra kilometers he travelled between his home and the district office.
7.3. During the arbitration proceedings it became clear and obvious that the applicant’s claim was not solatium compensation for the alleged unfair labour practice but a claim of damages and reimbursement. I therefore conclude that the dispute fell outside the jurisdiction of the Council.
8. AWARD
8.1. The Council lacks jurisdiction to deal with the claim.
ELRC COMMISSSIONER: NICHOLUS SONO
DATE: 25 June 2025