In the matter between
NAPTOSA obo Nomonde Mhaga Applicant
and
Department of Higher Education and Training
(Lovedale TVET) Respondent
ARBITRATOR: Andre Swart
HEARD: 15 July 2024
CLOSING ARGUMENTS: 22 July 2024
DATE OF AWARD: 1 August 2024
SUMMARY: Section 186(2)(b) of the Labour Relations Act – Unfair Suspension
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration was conducted on 15 July 2024, it was heard virtually via MS Teams, present was Mrs. Nomonde Mhaga the Applicant who was represented by Adv. Gavin Saayman of NAPTOSA, the Respondent was presented by Mrs. Pakama Xamesi an official of the Respondent
2. Parties were to submit closing arguments in writing by 22 July 2024, both parties complied with the arrangement.
THE ISSUE IN DISPUTE
3. I am required to determine whether the Respondent had committed an unfair labour practice as contemplated in Section 186(2)(b) of the Labour Relations Act of 1995 as amended, when it suspended the Applicant on 29 April 2024.
THE BACKGROUND TO THE DISPUTE
4. The Applicant is employed as a lecturer at post level 1 with a gross monthly salary of R38391.24, she is stationed at Lovedale TVET college.
5. On 29 April 2024 a suspension on full pay was implemented, this was done as the Respondent alleged that the Applicant was allegedly involved in acts of misconduct at the workplace, this is disputed by the Applicant.
6. The suspension remained in effect until 30 May 2024 when it was uplifted. The Applicant referred the present dispute as she believes that the suspension was punitive in nature.
NARROWING OF ISSUES
7. The suspension was imposed on 29 April 2024, the reason for the suspension relates to alleged acts of misconduct which transpired on 25 April 2024, these alleged acts are found from pages 11 to 14 in the bundle.
8. The Applicant submits that she was not present at the workplace when these acts of misconduct occurred and that the reason for her suspension was punishment for her being outspoken.
9. She seeks 12 months compensation.
10. The Respondent’s position is that the suspension was imposed as a precautionary measure following events at the workplace and seeks that no relief is granted.
11. As stated above the suspension was uplifted on 30 May 2024, the Applicant was remunerated during the suspension period.
12. The Applicant submitted a bundle of documents the contents of which were accepted as what it purported to be.
SURVEY OF EVIDENCE AND ARGUMENT
13. I have considered all the evidence and argument, the Labour Relations Act no. 66 of 1995 (LRA) requires brief reasons, as such I have only referred to the evidence and argument necessary to substantiate my award. What follows is a summary of the submissions of the parties.
14. The summary below is not a verbatim record of proceedings.
15. All evidence was presented under oath/affirmation.
The Applicant’s Submission’s
16. Mrs. Nomonde Mhaga (Applicant) submitted that on 25 April 2024, the staff of the college went to Bisho to hand over a grievance to the premier, they left the premises at approximately 11H00, she remained in Bisho until approximately 13H00, when she left with a colleague to East London as she was feeling unwell.
17. It came to her attention that after the march to Bisho the principal of the college was removed from his office, but she did not witness this as she was not present.
18. On 6 May 2024 she received the suspension letter, however the suspension was already imposed on 29 April 2024, at this time she advised the campus manager, Mr. Mbengo, that she had not been present at the college on 25 April 2024 when the incident occurred.
19. She submitted that it is her belief that she was charged due to an event which occurred on 6 February 2024, where a meeting with management was held due to the non-payment of suppliers. During this meeting she had been a vocal activist and because of this she was targeted with suspension in April 2024.
20. In cross-examination she conceded that the Respondent had not been aware of the group’s intention to deliver the petition to the premier and it was not informed of their intended absence.
21. She was asked if any written representations were made opposing the suspension, she indicated she only made verbal representations.
22. It was put to her that following the intervention of the National Department the suspension had been withdrawn as had the charges, she submitted she was not aware of this as she received no formal communication to that effect.
23. Mr. Sabelo Ndikinda (Ndikinda), submitted he knew the Applicant as they work and carpool together, they are also both NAPTOSA members.
24. He continued that on 25 April 2024, they travelled to work together in the morning, he was told by the Applicant to fetch her at the legislature.
25. He left the office and arrived at legislature between 12H00 and 13H00, he needed to be in East London for an appointment at 14H30, he collected the Applicant and dropped her in East London at approximately 14H00.
26. In cross-examination he indicated he was unaware of the meeting relating to the suspended employees and the DG of the Department.
The Respondent’s Submission’s
27. Mr. Mandla Manaka (Manaka), submitted he is the Vice-Principal: Finance.
28. He submitted that following the events of April 2024, the management of the Department became involved in order to defuse the situation. A meeting was held where the DG and other functionaries were present, at this meeting, which was attended by SADTU, NEHAWU and NAPTOSA it was resolved that the suspensions would be uplifted.
29. He stated that the suspension resulted from events which started in the hall relating to the service providers and resulting in management being insulted. He continued that senior management was also intimidated at this time.
30. He continued that the actions of the employees had been prejudicial to the operations and reputation of the college as service delivery was affected.
31. In cross-examination it was put to him that he was confusing events in February and April 2024, he indicated as the CFO he would be aware of events but needed to confirm the dates.
32. It was put to him that the events in April occurred after 14H00, he stated that he had heard officials had gone to the Office of the Premier and then had returned to the campus, but he believed the principal was removed from his office in the morning.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
33. In determining this dispute, I have considered all the relevant evidence presented in the arbitration and have further considered the submissions made in the closing arguments of the parties although I may not directly refer to such hereunder.
34. The present matter relates to a suspension as contemplated in Section 186(2)(b) of the LRA, it is also trite that in our law two forms of suspension exist that being a precautionary suspension and a punitive suspension.
35. Precautionary suspension has the purpose of removing a person from the workplace to reduce the risk of interference with the investigation or with witnesses or if the alleged misconduct is of such a serious nature that the presence of the employee at the workplace would be detrimental. Precautionary suspension is normally a paid period of suspension.
36. Punitive suspension is imposed as a sanction following some form of disciplinary proceedings, it is normally an unpaid suspension.
37. At present the leading case law on the fairness suspension is that of Long v SAB and Others (2019) 40 ILJ 965 (CC), the Constitutional Court held that two questions must be asked in relation to a suspension the first question is if there is a justifiable reason for the suspension and the second is if there is prejudice to the employee.
38. The Applicant in closing argued that she was not present when the incident happened in April and that her suspension was affected for an ulterior motive. She referred to case law in support of her claim to a solatium and the quantum of that solatium.
39. The Respondent in closing argued that it had justifiable reasons to suspend the Applicant as she had been present in Bisho with no proof of illness on the day, suspension was further required to prevent unauthorized gatherings at the college and to prevent interference with the investigation.
40. The evidence of the Applicant was that she had been present in the morning of 25 April 2024 and left to the Office of the Premier at 11H00 with the other employees, she however did not return to college as she was taken home by Mr. Ndikinda.
41. I have no reason to reject the evidence of Ndikinda as his evidence was clear and concise with no contradictions.
42. The Respondent as submitted above argues that there was no medical certificate supporting the Applicant’s submission in respect of illness, however there was no evidence presented by the Respondent which could place the Applicant at the college in the afternoon of 25 April 2024.
43. The evidence of Manaka was unrelated to the events of April 2024, as he presented evidence as to an event which happened in February 2024 relating to the payment of service providers.
44. What evidence he did present in respect of 25 April 2024 is also questionable as though he confirms that staff left the college to the Office of the Premier at 11H00, he maintained the principal was removed from office in the morning, this version was not put to the Applicant nor was her version challenged that these events transpired in the afternoon.
45. For these reasons I must reject the evidence of Manaka as being unrelated and unreliable to the present matter.
46. The Applicant’s version that she had travelled back to East London was not disputed and was corroborated and as such it must be accepted as the most probable version. She could therefore not have been at the college when the principal was removed from his office.
47. The Respondent in closing argues that the purpose of the suspensions was to prevent gatherings and interference with the investigation. One must question the rationale for imposing suspensions to prevent gatherings as that is akin to a disguised lockout.
48. For the Applicant to be considered a potential disruptor to the investigation there should be some link established between the Applicant and the event being investigated, in the present matter the Respondent cannot place the Applicant at the premises when the events of 25 April 2024 transpired.
49. I therefore find that the Applicant has established that there was no fair reason for her suspension as she was not present when the incident alleged in the suspension notice and charge sheet occurred nor was there any evidence produced that she had the ability to disrupt the investigation.
50. The next question is that of prejudice, its common cause that the Applicant was paid during her suspension and in Long this was one of the issues to consider when determining prejudice.
51. However, in the present matter the Applicant was without good cause prevented from performing her duties, I cannot find that this was due to an ulterior motive as is being alleged by the Applicant as she was not the only person suspended, the suspension rather appears to be a kneejerk reaction where there was a failure to establish who was actually involved in the misconduct and this in itself is prejudicial to the Applicant.
52. The Applicant prayed for 12 months compensation, there were no compelling submissions in the evidence as to why such significant compensation should be granted, it is furthermore not the purpose of these proceedings to act as an enrichment mechanism, rather the intention it to mitigate prejudice.
53. When considering the totality of the facts and considering the prejudice suffered, I deem it appropriate to award compensation equivalent to 2 weeks’ remuneration as a solatium.
AWARD
54. The Applicant, Nomonde Mhaga, has established that the suspension implemented by the Respondent, the Department of Higher Education and Training (Lovedale TVET, on 29 April 2024 constitutes an unfair labour practice as contemplated by Section 186(2)(b) of the LRA.
55. From the narrowing of issues, it became clear that the suspension is no longer in effect as such there is no need to order upliftment.
56. The Applicant is awarded compensation of R 17 698.95 (R 38 319.24 / 4.33 X 2 weeks) for prejudice suffered as a result of the unfair labour practice, this compensation is to be paid to the Applicant by the Respondent by no later than 31 August 2024.
57. There is no order as to costs.
Panellist: Andre Swart