The Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled that the University of South Africa (Unisa) should reinstate seven employees, who were suspended for 14 months, and compensate them.

According to the CCMA ruling, which the Daily Maverick has seen, the seven were suspended without any investigation having been instituted against them and Unisa did not defend itself during the CCMA proceedings.

Unisa was further ordered to compensate the seven employees to close to R200,000 combined.

But, in a response to the Daily Maverick, Unisa has indicated that it will take the ruling on review.

“The university is taking the matter on review. We prefer not to comment beyond this and will deal with the matter at the right platform,” Unisa said.

In the meantime, the National Education, Health and Allied Workers’ Union (Nehawu), which approached the CCMA on behalf of its seven members, welcomed the ruling and stated that the employees were suspended on “frivolous allegations of intimidation during our strike action at the institution for over 14 months”.

The strike was related to salary increment issues. 

Details

The CCMA ruling, dated 14 November 2023, was awarded by Commissioner Maputle Mohlala during the arbitration between Nehawu, the applicant party, its members Salman Odwa, Thabile Monama, Stephen Modiselle, Hellen Ntshudisane, Betty Nthoke, Andrew Komane and Mogapi Malatji and Unisa.

The arbitration hearing was heard and concluded on 24 October 2023.

Nehawu had referred the dispute in terms of section 186 (2)(b) of the Labour Relations Act 66 of 1995 (as amended).

Nehawu’s contention was that the continued suspension of its members amounted to an unfair labour practice.

On the other hand, the ruling states, Unisa contended that the employees were suspended for intimidation during a strike action. 

“The suspension was continuing because the charges against individual applicants [employees] were of a serious nature, Unisa no longer trusts the applicants, the intimidated employees (managerial staff) are not feeling safe around the applicants,” the ruling reads.

The employees were suspended on 27 June 2022 and their suspension was extended on 27 September 2022.

At the hearing, Unisa indicated that there was an ongoing disciplinary hearing against the employees, except for Modiselle, whose hearing was conducted separately from the rest of the individual applicants, owing to his ill-health that took effect during the collective hearing.

CCMA hearing

The parties requested to submit written closing arguments whose final submission date was 1 November 2023.

“As at the time of writing this award, only the applicant had submitted its written closing arguments,” the ruling reads.

The ruling states that Unisa did not call any witnesses in support of its case despite the fact that Mohlala had cautioned against there being no oral evidence, in contrast to that which had been led by the applicants.

Odwa testified during the hearing that she is Unisa’s financial Administrator at Facilities Management and a Nehawu shop steward.

“She was never involved in any investigation since her suspension. Unisa’s witness at their disciplinary hearing testified that there was no investigation prior to their suspension as the matter was straightforward,” Odwa testified.

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She testified that the maximum period of suspension is set at 90 days and her understanding was that everything must be concluded within 90 days.

“They have been on suspension for 14 months now. The continuation of suspension should be on the basis that there is a reasonable fear that the presence of the suspended employees may interfere with the smooth running of the investigation and the hearing, for example, the intimidation of witnesses.”

She stated that she wanted to return to work as the situation of being on suspension was becoming stressful as they waited on Unisa to provide them with another chairperson.

Under cross-examination, Odwa testified that three Unisa officials had testified in the disciplinary hearing that there was no investigation report.

Odwa further testified that the disciplinary hearing had not been concluded as yet but their suspension was extended on 31 March 2023 pending the conclusion of the disciplinary hearing.

“It is unfair that they sit at home for 16 months while their colleagues are at work, with no sight of their disciplinary hearing being nearing any conclusion.”

The suspension is reportedly affecting Odwa’s health status as she is starting to drink alcohol heavily as a coping mechanism.

Under re-examination, she testified that the last disciplinary hearing they attended was on 15 October 2023 and the chairperson had indicated that she would only be available after March 2024.

“She did not know of anyone feeling intimidated by her presence at Unisa.

“She meets with Unisa witnesses in this matter at the Unisa premises, she is a registered student and goes to campus when there are student issues to be sorted out.

“She also uses the Unisa shuttle to commute from Florida to Pretoria.”

Modiselle testified that he had been a Unisa employee at Waste Management for 30 years and had been a shop steward for 15 years.

His disciplinary hearing was concluded on 26 July 2023 and it ordered that he should return to work.

“Employee Relations Division has since appealed that decision. The appeal hearing sat two months ago and the chairperson adjourned it because there was no specific person who was appealing and there were also no grounds advanced for the appeal,” he testified.

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The ruling states that Modiselle indicated that he was not issued with any other letter of suspension after 10 July 2023 and neither of his colleagues received another extension letter after the first extension.

“His sanction for the alleged offence was a final written warning. He does not know the reason why he has not been accepted back into service except that it is said that there is an appeal.”

Under cross-examination, Modiselle testified that he knows of nobody feeling intimidated but said everyone would be happy to see him at work.

His disciplinary hearing was concluded on 26 July 2023.

The ruling states that there is no indication when the disciplinary hearing of the other six individual applicants will be concluded even though Unisa decided not to extend their suspension since 10 October 2023.

“The applicants have testified that they do not know of any person who could feel intimidated by their presence and Unisa failed to adduce any evidence to the contrary.”

Evidence analysis

Mohlala states in the ruling that the applicant party bore the onus to prove that an unfair labour practice was being perpetrated against them by Unisa in its conduct of continuing with their suspension after the prescribed period of 90 days, as provided for in the Employee’s Disciplinary Code.

“The applicants have led undisputed oral evidence and argued without any opposition from Unisa. I have no reason to doubt their evidence that Unisa’s conduct amounts to a perpetration of an unfair labour practice against them,” Mohlala wrote.

Their undisputed evidence, Mohlala states, was that they are not a threat to any one of the witnesses of Unisa and that they interact with people that are alleged to be intimidated or fearing them.

“Odwa has undisputedly testified that she mingles with the people who are alleged to be fearing them when she is on campus attending to her student issues as a registered student or when attending her disciplinary hearing as well as when commuting between Florida and Pretoria in a Unisa shuttle.”

Modiselle, Mohlala states, testified undisputedly as well that the people he is alleged to instil fear in would love to see him back at work.

“Unisa, by its failure to lead evidence, has waived its right to contradict the version of the applicants in order to avoid a negative outcome. It has done so at its own peril as the evidence of the applicants remains totally uncontradicted. 

“I have no reason to doubt the evidence as led and it proves that Unisa ceased to have a valid and justifiable reason to keep the applicants on suspension. If it had valid and justifiable reasons, it would have adduced evidence to the contrary. In the premises, I find that the applicants have discharged the onus to prove that their suspension is unfair.”

The applicants have sought relief not only in the upliftment of what they considered to be an unfair suspension but they also sought statutory compensation for the fact of the unfair labour practice.

“With the applicants having proven that their suspension continues and it’s unfair since the extension thereof, that Unisa has failed to comply with its own disciplinary code, has failed to adduce evidence, even from a single witness to rebut the evidence of the applicants and has not adduced any evidence against a monetary offering or pacifier to satisfy the hurt feeling of the suspended applicants, I am inclined to hold that a statutory compensation equaling to each applicant’s monthly remuneration is just and equitable in these circumstances,” the ruling reads. DM