IN THE ELRC ARBITRATION
BETWEEN:

Themba Raymond Nkosi Applicant
and
The Department of Education: Gauteng Province Respondent

ARBITRATION AWARD

CASE NUMBER: ELRC698-25/26GP

ARBITRATION DATE: 19 & 20 June 2025 & 28 July 2025
DATE OF AWARD: 29 August 2025

Pitsi Maitsha
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. This matter was held over 3 days. The first arbitration hearing was held on 19 & 20 June 2025. A final arbitration hearing was held on 28 July 2025. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995, as amended the Act. The award is issued in terms of section 138(7) of the LRA.
2. The applicant is Themba Raymond Nkosi. He was in attendance, and Mr. Avi Salitan, an attorney from CGG, represented him while he was initially represented by Mr. Gerri. The respondent is the Department of Education, Gauteng Province, and was represented by Ms. Charlotte Osler, Senior Education Assistant and Deputy Labour Relations Office.
3. The parties gave the evidence under oath. The proceedings were held on Teams. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

4. I am required to determine whether the conduct of the respondent in transferring the applicant for a period longer than sixty (60) days constituted an unfair labor practice. If so, make an appropriate award.

BACKGROUND DETAILS

5. The parties held a pre-arbitration meeting on 15 February 2023 and agreed on the following in terms of the Pre-Arbitration Minutes:
   5.1. In terms of common cause facts:
   5.1.1. The respondent employed the applicant on 1 April 2001 in the capacity of the principal. He was appointed at Laerskool Kreft Primary School. He was the Senior Education Specialist before he was appointed as the principal.
   5.1.2. The applicant was transferred to the Ekurhuleni North District office on 1 November 2022. The precautionary transfer was uplifted effectively on 1 April 2023. On 13 April 2023, he returned to the school and resumed his normal duties.
   5.1.3. He was suspended on 5 June 2023. On 15 March 2024, he received a letter dated 8 March 2024 confirming that he was still on precautionary suspension for a further ninety (90) days.
   5.1.4. On 4 February 2025, the applicant received a letter notifying him of the intention to convert his precautionary suspension to a precautionary transfer. The precautionary suspension was then converted to a precautionary transfer, effective from 6 May 2025. He then received a letter converting his precautionary suspension to a precautionary transfer to the Ekurhuleni North District. On 25 April 2025, he received a letter informing him of the implementation of the precautionary transfer to Ekurhuleni North District.
   5.1.5. The applicant was paid his full remuneration and benefits during the suspension period, excluding his cell phone incentives of R1,000.00 per month, airtime, and data, as well as the pay progression of 1.5% as per the issues in dispute. He received 1.5% of his gross salary as a pay progression from 1 July 2021 to 30 June 2022, covering the period from 1 January 2020 to 31 December 2020. 2020.
   5.1.6. He is earning a gross salary of R58 592.25 per month.
   5.1.7. He is currently being subjected to a disciplinary enquiry, which commenced in October 2024, and it was not finalized at the time of this arbitration hearing. Such a disciplinary enquiry has been scheduled to take place on Monday, 23 June 2025.
6. In terms of the issues in dispute, the parties recorded the following:
   6.1. Whether the applicant is owed by the respondent his pay progression of 1,5% for the following periods: 1 January 2022 to 31 December 2022 to be adjusted by 1 July 2023; 1 January 2023 to 31 December 2023 to be adjusted on 1 July 2024.
   6.2. whether the applicant needs to be in his position as the principal to be entitled to his pay progression;
   6.3. whether the applicant was entitled to the cell phone incentives and receive R1000.00 airtime and/or data. He was invited on 26 April 2024 via a letter dated 26 April 2024, the distribution of which was scheduled for 9 May 2025.
7. In terms of the issues to be decided, the parties recorded the following: whether the respondent owes any money to the applicant; if any money is owed, what amount is owed to the applicant.
8. Aggrieved by the decision to transfer, the applicant referred the dispute of pay progression as an unfair labour practice to the ELRC. He is seeking pay progression and cell phone benefits to be paid to him.

THE EVIDENCE OF THE APPLICANT

9. He testified that the respondent owes him some money because on 1 November 2022, he was placed on precautionary transfer, and he was sent back to school on 13 April 2023 for two weeks. He was then suspended on 5 June 2023 for a long period until this year in 2025, when he was told that his suspension would be converted to a precautionary transfer. He was told to return to the district and not to the school. He was not assessed for quality management systems (QUMS) for twenty-four (24) months. He believed that the respondent owed him to be assessed so that he could get 1,5%, but they could not assess him as they removed him from school.
10. He testified that the respondent needs to assess him before he can get payment. During COVID-19, he was not assessed, and all employees were given 1,5%.
11. He testified that on 31 January 2022, he signed the QMS to be assessed, and he needed to be contracted to the respondent. It means that all he was going to do must be assessed for the year. After signing the contract, he must sign the year plan for what he was going to do in terms of one, two, three, and four.
12. He testified that in terms of the guidelines to implement the Collective Agreement NO 2 of 2020 for the quality management system. Clause 1 of the Collective Agreement provides that all school-based educators, like PL1 to PL4, must be appraised during the performance management circle; there is no default to pay progression. Clause 1.1 provides that if an educator who was not appraised by the supervisor, removed by parents, who was seconded to the district, who is sick, who is put on suspension, or on precautionary transfer, must not be defaulted, but must be given three months for the employer to complete the investigation. It indicates that after the investigation, appraisal must be considered. In his case, it is 24 months, and the investigation was concluded a long time ago. The respondent never made any submission on cases 1.3 and 1.4 to the Head Office, stating that there is an employee who has not been at work for 24 months and has not received pay progression.
13. He testified that clause 3 informs about the requirements for pay progression. The requirement is 1,5% for a school-based educator. He qualifies for pay progression as he is a school-based educator, by being the principal, if he were at the school to be assessed. There is no default for educators on pay progression.
14. He testified that in 2022, he was assessed, but he was not paid progression in 2023 and 2024. On 1 July 2023 until 30 June 2024, his nudge was R636 537,00 and his basic salary was R53 004.74. When adding 1,5% to R53 004,64, the total is R53 840,42. When subtracting R53 840,42 from R53 004,00, the difference is R799.67, which is the amount the respondent owes him per month. The number multiplied by 12 months is equivalent to R9 548,04. This is the amount owed to him from 1 July 2023. Each and every 12 months, there is a bonus, and the bonus is part of 1,5%. The total amount is R10 343,67.
15. He testified that on 1 July 2024, his notch was R666 453,00 and his basic salary was R55 537,75. Adding 1,5% to R55 537,75, it is equivalent to R56 370,82; subtracting R55 537,75, the difference is R833,07 x 12 months =R9 996,84 +R833,07 =R10 829,91. The total two circles is R21 173,58.
16. He testified that all the principals were invited to collect their mobile devices at the Vodacom Campus on 9 May 2025, where he went as the principal. He was told that he was not going to get his mobile device because he had been suspended. He was entitled to receive a mobile device. According to those, the mobile devices are entrusted to the principals and other officials of the Department. The principal is entitled to R1 000,00.
17. He testified that the disciplinary code and procedure provides: “3. (a) (1) If an educator is suspended or transferred the employer must do everything possible to conclude a disciplinary hearing within one month of suspension or transfer; (b) The presiding officer may decide on any further postponements and such postponements must not exceed 90 days from the date of suspension; ( c) If proceedings are not concluded within 90 days, the employer must enquire from the presiding officer what is the reason for the delay and give direction on the speedy conclusion of proceedings; and (d ) at the time of enquiry contemplated in paragraph (c ), the employer may after giving an educator to make representations, direct further suspension will be without pay.
18. He testified that the disciplinary code gives them the timeframe for how much time he should be suspended or transferred. It is relevant because he has been out of school for 24 months, and he has not been appraised as he is not at the school. In terms of the QMS, the period is three months the matter must then be concluded so that he can be apprised.
19. He testified under cross-examination that he did not subject his educators to QMS in 2021. He confirmed that he was appointed in 2021 and started appraising in 2022. He testified that QMS has to do with his job as the principal. He testified that he did the mid-year appraisal with the IDSO or Circuit Manager. He testified that he did not contract in 2023 upon return to school because the IDSO did not give him the contract. He testified that he was at the school only for two weeks. He confirmed that he left the school on 5 June 2023. He disagreed with the statement that he did not want to see Bonga or speak to her. He testified that if he were not contracted, he could not be assessed. He testified that he did not remember how long he had been at school from 28 February 2024 until 15 March 2024. He further testified that he did not contract while he was at the school in 2024 because he went to the school to enquire about his suspension. He testified that his friends showed him the invite that all Principals are invited to Vodacom World. He did not personally receive the invite. His friend came to collect him to go to the Vodacom World to collect the cellphones. He testified that he was using the cell phone when he was in school; currently, he is not at the school. He testified that on 9 May 2024, he was not aware that the Acting Principal and he were to collect the same phone. He testified that clause 1.2 provides: “School-based educators whose reasons for non-appraisal will be subjected to an investigation by the provincial office.” He was never investigated by the QMS.
20. He falls into clause 1.1, which provides: “A valid reason with no fault of the educator appraisal not being conducted.”

THE APPLICANT’s CLOSING ARGUMENTS

21. Mr. Mikhail Mayet referred to Psa obo Blose Department of Education: KwaZulu-Natal (2009) 6 BALR 584 (GPSSBC), Israel v Department of Correctional Services (2009) 6 BALR 540 (GPSSBC), Ngwenya v Premier of Kwa-Zulu Natal (2001) 8BLLR 924(LC). He indicated that the Labour Court has laid down the fairness of suspension. He referred to Mabilo v Mpumalanga Provincial Government (1999) 8 BLLR 821 para.17. He submitted that the Commissioner should find that the applicant’s precautionary transfer and non-payment of his section 38A benefits were procedurally and substantively unfair, and he should be compensated with the standards and norms.

THE RESPONDENT’s EVIDENCE
THE EVIDENCE OF THEMBA TSHANGELA: THE SENIOR EDUCATION SPECIALIST, LABOUR RELATIONS UNIT, EKURHULENI NORTH DISTRICT

22. He testified that his duties amongst others, he was assigned by the Head Office as the initiator or the employer’s representative in the disciplinary proceedings currently underway between the respondent and the applicant. He was requested to see to it that the applicant complies with the conditions of his precautionary transfer and suspension. His role includes, amongst others, processing reports around the acts of misconduct by the GDE employees, which processing starts from investigating allegations contained in those reports on acts of misconduct, making submissions to the Head Office through the Director, initiating the disciplinary proceedings between the employer and the employee, presiding over disciplinary hearings, and so on.
23. He testified that the applicant was placed on precautionary suspension again on 5 June 2023 because, upon his upliftment of his precautionary transfer on 4 April 2023, he went back to school to commit other acts of misconduct that were included in the current allegations he is facing.
24. He testified that it took so long to conclude the disciplinary hearing of the applicant. He testified that the applicant is not honouring his medical certificate.
25. He testified that the reason to convert the applicant’s precautionary suspension to precautionary transfer was that he continued to receive his salary for no work done, the respondent viewed that as wasteful expenditure decided to convert that precautionary suspension to precautionary transfer at the district office wherein he would be doing duties at the district office, which would include the job description and in turn, translate to a contract in line with the requirements of QMS and he could be assessed. He received a medical certificate from the applicant stating that he would be unfit from 8 February 2025 until 31 August 2025.
26. He testified that on around 5 May 2024, a general notice was introduced to him by the Gauteng Principals inviting them to the Vodacom Centre as the Principals of public schools to receive new cell phones as supplied by the respondent. On 9 May 2025, there was a disciplinary hearing against the applicant, as the applicant’s representative, Mr. Malema, was invited to honour it.
27. He testified that the applicant has been given work at the district office. He had a one-on-one with the applicant, whereby they agreed that he would do the work he was allocated for. He is in the library section.
28. He testified under cross-examination that the maximum ceiling for the precautionary period is ninety (90) days, but circumstances would dictate otherwise. If it exceeds ninety (90) days, the presiding officer then requests an extension beyond 90 days. In this instance, extension was sought. He testified that both the employee and the employer are responsible for ensuring that the disciplinary process is concluded timeously. He agreed that the applicant has been placed in a holding pen without any resolution of the pending processes on a larger scale to blame.

THE EVIDENCE OF GLENDA BONGA: IDSO OF SCHOOLS OF CIRCUIT ONE AND CLUSTER THREE EKURHULENI NORTH DISTRICT

29. She testified that her work relationship with the applicant is that he is the principal and she is his manager, a relationship of supporting him, guiding him, as well as conducting QMS assessment. She became the cluster leader in mid-February 2022. Mam Adelaide Mashego was his IDSO before her.
30. She testified that she did contract with the applicant in 2022. She did not remember completing the applicant’s mid-year assessment, even though she did request the principals to ensure that they submit that for her to be able to complete that with them, but he did not honour the invite. The applicant did not come to the meeting. He did not communicate why he did not come. They did not do the annual assessment, as during that period, the applicant was on precautionary transfer on 1 November 2022. She was not in contact with him so that she could conduct the annual assessment at the end of the year.
31. She testified that she could not conduct the assessment upon the applicant’s return from precautionary transfer on 4 April 2023 because, as there was no communication that he had come back since she was issued the communication that he was on precautionary transfer, she was waiting for that. Upon being informed by the school’s Acting Deputy Principal and school staff members at school that he had returned, she did communicate with him, but he did not respond to any communication with him. She communicated with the applicant by phone call, but he did not take her calls, and she sent messages, but he did not respond.
32. She testified that she was invited by the labour unit when the applicant was issued the letter.
33. She testified that she did not contract with the applicant in 2024. She was made aware by the staff whenever the applicant was at the school. She did go to the school with other officials from labour together with her colleague, whereby the applicant told her that he did not recognize her as his IDSO, he is not her kid. They went to see the applicant as the seniors told them to see the applicant.
34. She testified that she had a good relationship with the applicant in 2022. She worked well with him; she visited his school numerous times, they communicated, she called him, and he, too, called her. When he was given guidance on issues of governance, he would refuse in some instances. She would persuade him on issues affecting payments to service providers, he would refuse and tell him that she was supporting him, thus when the cracks started showing because she would report him.
35. She testified under cross-examination that she has been reporting to the PMD that she could not conduct an assessment appraisal because the applicant was still on precautionary transfer. She testified that she has issued a written report to her manager.

THE RESPONDENT’S CLOSING ARGUMENTS

36. Ms Charlotte Osler indicated that Mr. Tshankela stated that the reason why the applicant was not assessed was that he was placed on precautionary suspension from 1 November 2022 to date. She indicated that the QUMS states that educators who are suspended or undergoing disciplinary procedures for alleged serious misconduct are categorized in sections 17 and 18 of the Employment of Educators Act. The guidelines provide a condition that if an employee is cleared of the misconduct or serious conduct allegation, he or she can be appraised, not a must to be appraised, and be considered in retrospect with an acceptable level of performance for the previous evaluation cycle. She argued that the document the applicant bases their right to receive pay progression also stipulates that what happens if one is not appraised due to being on precautionary transfer or suspension, one needs to be cleared of all allegations. She indicated that the respondent knows that the applicant has not been cleared of the allegations and his disciplinary hearing is still ongoing. She argued that at this moment, the applicant does not need the respondent’s phone and data as he is not performing normal duties. She submitted that the applicant has not discharged the onus to prove that the respondent has acted unfairly based on the evidence led by him.

ANALYSIS

37. This matter concerns pay progression. Generally, it is tried law that in any dispute relating to an alleged unfair labour practice, the applicant bears the onus to establish or prove that the conduct of the employer constitutes unfair labour practice. Whilst the respondent bears the onus to prove that the conduct does not constitute unfair labour practice. The applicant had submitted a bundle of documents, hereinafter referred to as bundle A, and has not called additional witnesses, whilst the respondent has called two witnesses and submitted a bundle of documents, hereinafter referred to as bundle R.
38. First and foremost, section 6, SUSPENSION of the Employment of Educators Act, under Schedule 2: Disciplinary Code and Procedures provides:
    “6(1) In 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.”
39. I am mindful of the fact that I am not determining unfair suspension or dispute about a precautionary transfer. However, it suffices to state that the gist of the applicant’s dispute is whether he is entitled to pay progression.
40. It is common cause that on 1 November 2022, the respondent had placed the applicant on precautionary transfer. It is also common cause that the said precautionary transfer was uplifted on 4 April 2023. On 13 April 2023, the applicant reported to work. Then the applicant was supposed to have been taken through the assessment or appraised for the period 1 January 2022 until 31 December 2022. Nonetheless, it did not happen.
41. It is not disputed in this regard that the applicant is reporting to his supervisor or Cluster Manager, Ms. Glenda Bonga, effectively from February 2022.
42. According to Ms Bonga, the applicant had declined to meet her upon his return to work following upliftment of his pecuniary transfer. I wish to record in this regard that the applicant failed to dispute this version. I further wish to record that the applicant had conceded in his testimony that 1,5% salary adjustment is subject to an employee undergoing assessment or appraisal. Again, it is not disputed that Ms Bonga had reported to her manager that the applicant had refused to meet her, indicating that he did not recognize her as his IDSO. Therefore, an obligation is placed on her to submit a report to the Circuit Manager as to why a non-appraisal was made against the applicant, which she did.
43. It is evident before me that the applicant had demonstrated a lack of cooperation with her senior to ensure that his appraisal is successfully conducted upon his return to work, resulting in the upliftment of precautionary transfer by the respondent. He served as an obstacle to his good. The respondent cannot, therefore, be blamed for the conduct of the applicant. I am of the view that blame should also be on the applicant for failure to cooperate with his Manager, Ms. Bonga.
44. It is common cause that on 5 June 2023, the applicant was further placed on precautionary suspension. In terms of section 6(1) of the “EEA”, the respondent is obliged to conclude the investigation and a disciplinary enquiry within ninety (90) days from the date of suspension or transfer.
45. It is common cause that on 5 May 2025, the applicant was handed a letter of intention to convert the precautionary suspension of the applicant to a precautionary transfer. It is further common cause that the applicant has been placed on precautionary transfer to the Ekurhuleni North District to date. It is Ms Bonga’s version that she could not conduct an assessment of the applicant’s performance for the period 1 January 2023 until 31 December 2023, as the applicant has been placed on suspension.
46. In this regard, I concur with Ms Osler’s argument that the document the applicant relied on to support his claim that he is entitled to receive pay progression provides that an educator who is placed on precautionary suspension or transfer should be cleared first of the allegations against him or her. There is no evidence before me stating that the applicant has been cleared of the allegations against him. He is, in fact, still attending a disciplinary enquiry.
47. Having regard to the above, I am of the view that the applicant should be assessed for the period 1 January 2022 until 31 December 2022, as such an appraisal should have been completed before the respondent decided to place him on precautionary suspension. The respondent ought to treat the two periods distinctively. At the time, there were no new allegations that could have triggered the respondent not to assess him.
48. The period from 1 January 2023 until 31 December 2023 depends on, or will be determined by, the completion of a disciplinary enquiry. The evidence before me is that the applicant has been involved in a dispute with the respondent effectively 2023. At the present moment, the applicant failed to dispute the respondent’s version that he had presented a medical certificate to the respondent, which booked him off until 31 August 2025. This also contributed to the delay. The probabilities in this regard favour the respondent in that the applicant can attend the ELRC hearing, whilst he is not fit to attend the internal proceedings. He is the author of his misfortune.

IS THE APPLICANT ENTITLED TO RECEIVE A CELL PHONE AND DATA?

49. From the onset, I wish to record that I am not persuaded by the applicant’s version that he is entitled to receive cell phone and airtime data. It is common cause that the applicant is currently transferred to the Ekurhuleni North District Office to work there. I wish to record further that the applicant failed to dispute the respondent’s version that the data and cell phone should be received by the Deputy-Principal, who is using it for school-related activities. If the applicant is placed at the district, what would be the purpose of having a cell phone and data, knowing very well that it would be practically impossible to use them for school purposes, as he is placed at the district office?
50. Having regard to the above, I am of the view that the applicant is not entitled to receive a cell phone and data, or airtime.
51. Regarding the above, I believe that the applicant had failed to discharge the onus to prove that the respondent’s conduct constituted unfair labour practice.
52. On the premises, I make the following award.

AWARD

53. I find that the applicant, Themba Raymond Nkosi, has succeeded in establishing that the conduct of the respondent, Department of Education: Gauteng Province, constituted unfair labour practice in terms of Collective Agreement NO. 1 of 2008.
54. As a result of the above, I hereby order the respondent, the Gauteng Department of Education, to conduct the appraisals for the applicant for the period from January 1, 2022, to December 31, 2022. Regarding the period from January 1, 2023, to December 31, 2023, the parties should wait until the disciplinary inquiry is finalized and he is cleared of the misconduct allegations before an appraisal is conducted.
55. I further find that the applicant has failed to prove that he is entitled to receive cell phone and data, and airtime.
56. I make no order as to costs.

P. Maitsha
ELRC Panelist