In the Dispute between:
Zakhele Nawa
(Union/Applicant)
And

Department of Education (Gauteng)
(Respondent)

Union / Applicant’s representative: In persom
E-mail: n/a
Fax: n/a
Contact number: 082 512 3249

Respondent’s representative: MoefiedahJaffer
E-mail: n/a
Fax: 011 355 0460
Contact number: 011 843 6554

DETAILS OF HEARING AND REPRESENTATION

1. This matter was set down for arbitration on 20 June 2016, 09h00 at the premises of Department of Education Brakpan District Office.

2. Both parties were in attendance and representation is as indicated above from all parties. Both parties agreed to submit written argument. Written arguments were only received on 27 June 2016.

BACKGROUND OF THE DISPUTE
3. The applicant is still in the employ of the Department as a Deputy Chief Education Specialist. The dispute occurred on 12 October 2015, this being the date the applicant was issued with an appeal outcome. The applicant was charged and found guilty on: “unjustifiably prejudiced the administration, discipline and efficiency of the Department in that he failed to ensure that the submissions on the cases allocated to him are finalized and he subsequently abandoned them without permission. Such cases are as follows: Van Vuuren; Komane; Tshito; Sithole and Tshingila.” The applicant was called to attend an enquiry on 28 and 29 May 2015. The applicant failed to attend the enquiry as scheduled due to work commitments. Subsequently, the applicant was issued with an outcome for suspension without pay for a month.

4. As per page 7-8, bundle B (pre-arb minutes), the following issues are in dispute:
a) Whether or not the applicant was afforded an opportunity to be heard prior to a sanction being metered against him;
b) Whether or not the applicant informed the respondent of his failure to attend disciplinary enquiry;
c) Whether or not the applicant was expected to apply for postponement regardless of his work commitments;
d) Whether the sanction imposed is appropriate; and
e) Whether there was a breach of rule as per charge 1, this being the charge the applicant was found guilty of.

5. The applicant referred a dispute on 23 October 2015, the matter remained unresolved at conciliation. Thereafter the applicant referred the matter to arbitration hence this proceedings. The applicant sought that the suspension be lifted.

ISSUE FOR DETERMINATION

6. I must determine whether the respondent committed an unfair labour practice related to unfair suspension. If so determine the appropriate remedy.

SURVEY OF EVIDENCE AND ARGUMENTS
APPLICANT’S EVIDENCE
A summary of the applicant’s submissions is as follows:

7. On 27 May, a day preceding an enquiry, he sent an e-mail to inform the Director, Patrick Selowa and Deputy Director that he won’t be able to attend the enquiry due to work schedule (had to represent the respondent on a matter). The respondent continued with the enquiry well aware of his whereabouts. His duties were allocated by Mr. Patrick Selowa, his supervisor. He conceded to have not made a follow up with the Director on whether he was in receipt of the e-mail or not. He was not aware that he needed to send the e-mail to the chairperson. He also did not know who the presiding officer was for his enquiry.

8. He made submissions on the Ntshingila matter to the Director. He (Director) signed documents on 10 Aug 2012, then the Acting Director signed off on 13 August 2012. When documents were forwarded to the Deputy Director General (DDG), he (DDG) indicated that there were contradictions within the statement submitted by the complainant. Then documents were returned for verification and amendments. He conceded that the DDG did not sign off on the matter. Subsequent to that, he wrote a letter to the complainant (Matambuye), seeking clarity on the contradictions. He hand delivered the letter to the complainant on 26 September 2012. On day following, he received a response letter from LP Molope Attorneys acting on behalf of the complainant. The attorneys indicated they are not willing to provide any clarity on issues raised within the letter. On 27 September 2012, he took the two letters to the Director’s office as attachments. Thereafter, it was sent to the Deputy Director General for approval of charges.

9. He argued whenever there are corrections to be made on documents for submission, it is sent via the Director’s office then redirected to the relevant office. After his submissions, it became the Director’s responsibility to address the challenges and forward the file to the DDG. He argued that he was not instructed to make changes and re-submit documents. He was requested to write the letter to the complainant and attach to the file then send through for signing off. The Director committed that he will attend to the matter. This file was kept by the Director and he was not instructed to make submissions. He received a text message regarding the file 12 months later and he was no longer at head office. He acknowledged that he did receive a message on 13 November 2013 as per page 33, requesting him to report to the office to deal with cases he already finalized. During this time, he was of the opinion that the Ntshingila matter was finalized. The Director should have sent to him files which were not finalized and this did not happen. He argued that he was at head office until 01 September 2013 and this matter was never brought to his attention over a period of 12 months. He responded adequately to the DDG’s request to clarify the dates. There was a process to do a handover, to close, complete and to deal with those files not completed.

10. He handed over all files to the Director. He did not handover Komane and Sithole because they were not at his office when he did handover. There were interns working from his office and might have removed the files. More so, there was no indication that those files were removed. He worked on the Sithole matter and had to do some corrections. Other duties derailed him from completing the task. If the file was with him, he would have known that it has not been closed. The e-mail relating to these files was only sent to him in August 2014, yet he relocated in September 2013. The Sithole file was missing from his office and the other files he could not have been aware of. He could not remember all the files. The respondent did not make available to these proceedings the list of files which he did complete. He complied with the instruction to complete or close all files. The respondent has a personal vendetta against him due to allegations that he allowed someone to observe the process. He requested the respondent to provide him with a legislation or policy that prohibits observations. The charges levelled against him were crafted 12 months later. He was not given cut-off date for submissions before leaving to the district office. There were other issues to deal with i.e. to go and preside on another matter. He argued that when he finished off, he handed back all files. At the time of completing handover, those files were not at his office. He argued that files gets lost all the time and he could not report because he had a number of files. He sent a driver to collect files and he returned without files.

11. He sent an e-mail to the Director on 27 September 2013 on the Moleko documents. He was instructed to do so by the Director. He further confirmed to him that files were sent via e-mail. He was surprised to have received several text messages related thereto. The file was with the lady at the office. During the month of October and/or November, he went to head office to conclude whatever was outstanding. When moving office, he did commit to report to head office on Tuesday- Thursday to ensure that all files are closed. The practice to send files to the Director’s does not cover all circumstances, he e-mailed the submissions together with a letter.

12. On Jansen van Vuuren, the school stayed too long without a substitute. The principal phoned him to indicate that they needed to appoint urgently. He informed the Director that the employee was already terminated and he won’t be able to proceed with the issue. He argued that there was a letter missing which he awaited from the District office. This letter did not come forth. He acknowledged that he did not make any reference to the letter on file. He argued that in 2012 he had a discussion with the Director related to same and Granny finalized the file in 2014. He conceded that there was a discussion in 2012 and the file was not finalized.

RESPONDENT’S ARGUMENTS
A summary of the respondent’s submissions is as follows:

13. Patrick Selowa testified as follows: He is employed as the Director Labour Relations and Management of discipline in the province. He assigned work to the applicant and after several engagements he realized that those matters were still outstanding. He warned the applicant on this the applicant failed to heed the warnings. Then a hearing was convened and he appeared as a witness hence he drafted the charges. He was not aware of the reasons the applicant failed to attend an enquiry. There were no reasons given by or on behalf of the applicant on the day of the proceedings. When one fails to attend an enquiry, the presiding officer makes a decision. The applicant should have applied for a postponement through his representation or in person. He conceded under cross-examination that he has many gadgets where he receives e-mail. But could not recall receiving the applicant’s e-mail informing him of his failure to attend the hearing. He conceded that the e-mail was transmitted but he never received the mail sent. He argued that he allocates work to Labour Relations Officers but has an administrator handling the dates allocated thereon. He was not aware that the applicant had conciliations to attend to. He would not have known which cases are allocated on specific dates. He argued that the applicant had a responsibility to bring the work allocation to the presiding officer concerned. He did not know the applicant’s whereabouts because there was no communication sent through.

14. Prior to charging the applicant, he had several conversations with him on and after his transfer relating to outstanding files. His approval of the applicant’s transfer was subject to him finalizing all outstanding matters. The applicant was to either take the files with him or attend to them at the office. He (applicant) was also issued with a laptop to work on those matters. The applicant undertook to work on those from the office. He sent several e-mails to inform the applicant that these cases were important to the department. He also sent a letter as a reminder to the applicant that some matters were not finalized and were prolonged. Prior to sending letters, he sent several text messages for the applicant to work on those cases. He signed letter and scanned it through via an e-mail. He listed the matters and the applicant failed to comply. The applicant kept on making promises to and finalize matters. He conceded under cross-examination that when the applicant transferred to another office, there were files completed and taken for storage. But there were also other files which were not completed and he instructed the applicant to complete same.

15. Tshito made an application for reinstatement. It was referred by HOD on 05 August 2013 and should have been finalized by 18 August 2013. He had to personally make submissions after the applicant has failed to do his work and there was no explanation provided for his failure to do so. He argued that any submission to HOD is to be made on file, supported by an application or any relevant information. Tshito file was not properly made in terms of practice. He needed the file urgently and it was assigned to the applicant yet not completed. He told the applicant that this matter would embarrass the department because it has been dragging for a long time. Therefore, this was also an incomplete submission. When a text message was sent, the applicant never mentioned that Tshito’s file was in his office. He then asked the applicant to come and draw the file for submission. It was not for him to look for file and submits on behalf of the applicant. Much as the file was later located, the applicant failed to finalize the submissions and he had to do it himself.

16. On the Ntshingila matter, the applicant was to seek clarity on how the incident of sexual harassment happened. After the Deputy Director General’s comment, the applicant wrote to the complainant and sought clarity. On receiving correspondence, they were to incorporate such response into submissions then submit to the DDG’s office. He discussed the response with the applicant and instructed him to revise submissions. In doing so, the applicant was required to clarify that dates will not change. The applicant failed to resubmit documentation. He sent the applicant a text message and informed him of the implications of his failure to act upon the issue. The applicant appreciated the risk and made a commitment to deal with the matter. Due to the applicant’s failure to resubmit documentation, he had to deal with the matter himself.

17. He allocated the Van Vuuren matter to the applicant on 06 July 2012. The employee (van Vuuren) was absent from work for 14 consecutive days. He was to work with the applicant in making submissions to the Head of Department. The applicant did the draft and he was to come to his office to discuss the file. He re-assigned the file to another labour relations officer to finalize the work after the applicant has failed to do so. The delay caused on finalization of termination could have led to overpayment of salaries. This position was to be re-advertised. He signed off on the final submissions of file in March 2014, which is two years later.

18. He allocated the Sithole & Komane matter wherein Sithole was to be charged. The applicant failed to finalize submissions to charge Sithole. The applicant was aware of his responsibility to charge timeously. His failure had implications of employees transgressing without being held accountable. He kept on reminding the applicant because they could not charge the employee a year later. The applicant gave no explanation on why there were delays. This undermines management of discipline within the department. The applicant failed to complete work on Sithole matter. A matter is said to have been completed when approved by Head of Department. The applicant did the draft and he (witness) made notes requesting the applicant to discuss the file with him. He could not sign until such time that amendments were made. Due to undue delay, the matter was abandoned. He could not sign off the document because of the standard of work. On Komane matter, the employee made a request to be reinstated due to that he was hospitalized due to ill-health. He submitted a medical report to that effect. He had to do the submission himself due to that the applicant failed to complete his work.

19. He argued that at the time the applicant left, it took him months before the office was re-arranged. Files were only taken out of his office after he refused to return to sort out the files. He told the applicant that he does not accept the files. He conceded that Komane and Sithole files were part of those not completed. The applicant kept on making promises to sort the files out. All these files were allocated to the applicant, he was reminded of the urgency to finalize the matter but he failed to do so. He argued that the driver sent by the applicant never went to his office to request for files. Even then, the applicant did not inform him that he had sent a driver to collect files. The 12 months delay was due to that he spoke to the applicant telephonically; sent text messages for the applicant to attend to the files. He argued that it was never brought to his attention that files were missing. The files landed at his office after the applicant has failed to attend to them. He informed the applicant to include the issues raised by the attorneys on his submissions.

20. If this was his company, he would have fired the applicant. As a labour relations officer, the applicant needs to be exemplary. The applicant chaired many cases himself, he knows discipline is important within the Department. He failed to deal with a cases which had severe implications. The decision of the presiding officer was lenient towards the applicant.

ANALYSIS OF EVIDENCE AND ARGUMENT

21. The Labour Relations Act 66 of 1995 as amended (LRA) under Section 186 (2) (b) defines unfair labour practice as meaning “any unfair act or omission that arises between an employer and an employee involving an unfair conduct by the employer relating to the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; ..”

22. The unfair conduct the applicants complains of; relates to unpaid suspension as a sanction short of dismissal. The applicant led evidence that he worked on the Ntshingila case and believed to have finalized the matter as required. What remained was for the Director to work on the file and send it through for signing off. He acknowledged that the signing off could not happen at first instant due to date discrepancies. From the time he received a response from the attorney’s office; he attached documentation to the file and handed it over to the Director. The Director conceded that the file was in his office, but stated that the applicant was to do amendments on the submissions after receiving the response from the complainant’s lawyers. This, the applicant stated was the Director’s responsibility to make amends and send through to the DDG’s off for signing off. If this was so, the applicant would not even have been involved with the writing of the letter to the complainant for clarity.

23. The applicant made concessions to receiving text messages requesting that he reports at head office to finalize the matter. The applicant’s version changed from time to time; at one hand he indicated that he was of the view that the matter has been finalized, on the other hand stated that the text reminder came through 12 months after his transfer date and that he was not given time frame within which to finalize the matter. It is evident from the message exchange he had with the Director that he was reminded many a times but chose to disregard the request for reasons unknown to this date.

24. The applicant conceded that he did not do the handover on the Komane and Sithole case because the files were lost. The applicant showed no remorse related to those files; save to state that files gets lost all the time. He placed blameworthiness on interns for his failure to account to the Director related to the files. The respondent argued that the office was only re-arranged months later after the applicant has failed to attend to those cases. Should the applicant have brought this to the Director’s attention, these cases could have been attended to timeously. But commitments were made to attend to the files yet they were lost. Amongst other cases, this shows a clear disregard of Departmental disciplines or efficiency

25. The applicant stated that he made submissions on Tshito’s case and sent it through to the respondent via e-mail as he was instructed to do so by the Director. The Director argued that the applicant is aware of the procedure to follow when making file submissions to his office. The applicant conceded under cross-examination that files need not be submitted via e-mail but according to him; this does not cover all circumstances. He could not stipulate under which circumstances this file would have been accepted via e-mail other than being hand delivered to the Director’s office. I am of the view that those circumstances are non-existent. The applicant stated that he left the file with another lady, a name of such a person was never made available during the proceedings.

26. The applicant argued that he informed the Director that he won’t continue with the Van Vuuren case because the employee was already terminated. The applicant was well aware that the school needed to replace the employee that was terminated on an urgent basis. The respondent argued that the applicant’s failure to expedite the finalisation of this case would have had implications on overpayment. The applicant conceded that he did not finalise the matter of Van Vuuren due to awaiting a letter from District office. This matter was finalised by Granny in 2014, hence he was tasked to work on the matter in 2012.

27. It is evident from the facts as led by parties that there was an undertaking by the applicant to finalise all outstanding cases allocated. There were numerous messages sent to the applicant reminding him of the outstanding files which needed to be finalised. On all these cases; the applicant has miserably failed to attend to attend to and therefore prejudiced the administration, discipline or efficiency of the Department. In justifying his actions, the applicant stated that the cases were followed up after 12 months period. Which I find to be no justification at all, given the several reminders he received from the Director. The applicant’s testimony was riddled with inconsistencies. On this basis, the applicant has failed to discharge the onus on balance of probability that the respondent committed an unfair labour practice related to suspension. In addition to this, the sanction imposed upon the applicant is appropriate given his conduct. In Aries v CCMA & others (2006) 27 ILJ 2324 (LC)

‘’the Court held that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner’’

28. The applicant led evidence that the respondent was unfair in proceeding with the enquiry in his absence. Especially when aware that he was attending to work commitments. The respondent argued to have not receive the applicant’s indications that he won’t be attending the enquiry scheduled. More so, the Director stated that he does not do allocation to dates. He further argued that the applicant had a responsibility to file an application for postponement with the presiding officer. The e-mail submitted as proof that the Director was sent a message indicating that the applicant won’t attend the enquiry is not conclusive evidence. The applicant had a responsibility to file a postponement request with the presiding officer, which he failed to do. As a result of the aforesaid, I find that the discretion to proceed with the enquiry in the absence of the applicant was not exercised irrationally. On this basis, I find that there was no procedural irregularity leading to the sanction being imposed.

29. I therefore find as follows:

AWARD

30. The respondent’s decision to suspend the applicant is hereby upheld.

31. This application is dismissed.

32. I make no order as to costs.

Thus done and signed in Pretoria on 07 July 2016

ELRC Panellist
Evah T. Ngobeni