ELRC91-16/17GP
ELRC91-16/17GP
Award Date:
29 April 2019
Case Number: ELRC91-16/17GP
Province: Gauteng
Applicant: MAHLASELA S
Respondent: 1st Respondent DEPARTMENT OF HIGHER EDUCATION AND TRAINING, 2nd Respondent SOUTH WEST GAUTENG TVET COLLEGE
Issue: Unfair Dismissal - Constructive Dismissal
Venue: South West Gauteng TVET College, situated in Soweto,
Award Date: 29 April 2019
Arbitrator: L. Naidoo
Case Number: ELRC91-16/17GP
Commissioner: L. Naidoo
Date of Award: 29 April 2019
In the ARBITRATION between
MAHLASELA S
(Union/Applicant)
And
DEPARTMENT OF HIGHER EDUCATION AND TRAINING
(1ST Respondent)
SOUTH WEST GAUTENG TVET COLLEGE
(2ND Respondent)
Union/Applicant’s representative: Mr P Bongwe
Union/Applicant’s address:
Telephone: 081 3407012
Telefax: 011 836 4856
E-mail: prince@nehawu.org.za
Respondent’s representative: Mr S Carney
Respondent’s address: Corner Koma & Molele Road
Molapo Section
Soweto
Telephone: 086 176 8849
Telefax: 011 984 1262
E-mail: carneys@swgc.co.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down for arbitration, which was held South West Gauteng TVET College, situated in Soweto, at 09h00 on 5 July 2018, 8 November 2018, 4, 7, 26 & 27 February 2019.
2. These proceedings were digitally recorded by the ELRC.
3. The applicant was present and represented by Mr P Bongwe, a trade union official.
4. The respondents were represented by Mr S Carney.
ISSUE TO BE DECIDED
5. I am required to decide, whether the applicant’s dismissal was substantively and/or procedurally fair. If not, to grant the appropriate relief.
6. There was no dispute that the applicant was dismissed; therefore in terms of section 192(2) of the Labour Relations Act (“the LRA”) the respondent bore the onus to prove that the applicant’s dismissal was both substantively and procedurally fair.
BACKGROUND TO THE ISSUE
7. The applicant was employed on 1 February 2006 as Marketing and Graphic design lecturer.
8. On 2 November 2016 the applicant was dismissed based on the outcome of the disciplinary hearing.
9. The applicant requested to be reinstated as relief for her alleged unfair dismissal.
10. There were 12 witnesses that testified herein however for the sake of brevity I will only record the evidence I considered relevant in making a determination insofar as the unfair dismissal dispute is concerned.
SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s evidence and argument
The 3rd witness, Ms Elizabeth Mthembu [member of the public], testified under oath as follows:
11. She was requested to read into the record page 21 of the bundle marked A - which she complied. She then explained that “I met the applicant in 2013 when she (the applicant) provided me a teacher to accommodate in my residence”. She explained that her accommodation in Meadowlands was used to accommodate students (from the college) referred by the applicant.
12. The respondent’s representative then referred the witness to the third paragraph of the said document (page 21) and asked the witness why she paid the applicant an amount R2000.00 and probed further as to what services did the applicant provide. The witness explained that “she brought me student’s; when I first knew the applicant in 2013 she gave me 1 teacher and 1 student, later in 2014 she gave me another student, thereafter when the school re-opened in July 2014 - the applicant gave me 10 students, in 2015 the applicant gave me 15 students - the problem came when she needed to be paid R2000.00”.
13. The respondent’s representative then asked the witness whether she thought that the applicant was a representative of the college. The witness stated “yes”. He then asked her if she was aware of who dealt with student support at Dobsonville campus. The witness stated “I knew Tshepo Madubung after our fight”. The witness then explained that there was a fight between herself and the applicant when the students were taken. The witness explained further that “I thought that the applicant worked with Mr Madubung as they would come together with the students - to show them where they would be living - but when the money was collected Mr Madubung was not there”. The respondent’s representative then asked where was the money collected. The witness explained that it was at her home. The respondent’s representative then read paragraph 5 of the document on page 21 and asked the witness to explain that. The witness stated “the applicant was not at school for a certain number of months and the money accumulated so it came to that amount, because when she is not at school she can’t come to my house to collect and that was between October - November 2014”. The witness explained that was when she refused to pay the applicant - after attending a meeting she realised that she was not supposed to be paying the applicant at all. When probed as to the meeting. She explained that the meeting was held at head office (with Mr Makhaphela and Mr Munyamane) and they were advised as to how students were to behave and that they should not bunk and stay at the accommodation. She went on to say that meeting also dealt with issues of money being solicited for accommodating students at the college. The respondent then asked the witness to explain the fight between herself and the applicant. The witness explained “it started when the applicant demanded money and she said all sorts of things to me. When she (the applicant) heard she (the witness) got payments she would come to my house and demand R8000.00 for a funeral; she (the applicant) would make sure that when she comes to my house there are no students there, so she would come on her lunch break”. The respondent’s representative then read paragraph 6 on page 21 and asked the witness to explain. The witness stated “the applicant caused a lot of pain, she took a bed without permission; the applicant is a bully and has no respect for others.” She went on to say “she would bad mouth me to the students and did not have any respect for me - she would influence the children to also not respect me”. The respondent then asked the witness about the frequency of the payments - and the witness submitted that payments were made at the end of the month in cash she went on to say that she suggested doing a deposit but the applicant insisted on cash. The witness was asked to explain how this had affected her. She explained that it had seriously affected her as the applicant would also sleep over at her place without asking.
14. During cross examination the applicant’s representative asked the witness when she started accommodating children. The witness stated in 2013. He queried how many students she was accommodating in 2013. The witness stated “2 teachers and 1 student”. He then asked her about the number of students she was accommodating in 2014 - “from January to June I had 8 students and when the school reopened I had 10 students”. She confirmed further that although she could not recall the names of all the students she accommodated, she kept a record of it.
15. He then asked who had assisted her purchase a mattress, sponges and a fridge. The witness stated that no one had helped her with that.
16. The applicant’s representative then put it to the witness as follows: “earlier you claimed that you gave her (the applicant) money, why because the college informed you not to do so”. The witness responded: “I already gave; I stopped when I heard not to…” She confirmed further that she had given the applicant money in 2014 and not in 2015. The applicant’s representative then requested the witness to provide proof that she had given money to the applicant. The witness submitted that there was no proof as there was a cash handover. He then asked her whether anyone witnessed the exchange of money. The witness stated “she would collect it during her break”. He then read the witness’s affidavit into the record - and asked her whether she had paid the applicant R2000.00. The witness stated “yes. I did pay”. He then asked her when she stopped paying the applicant; the witness stated “In October 2014”.
17. During re-examination the respondent’s representative asked the witness whether there was any reason for her to be untruthful. The witness stated “there is no purpose”.
The 4th witness, Ms Florence Keheilwe Molokwane [member of the public/ service provider], testified under oath as follows:
18. During examination in chief she read her statement into the record. She confirmed that the applicant would frequent her residence 3-4 times per week; to check if the students have settled and she also stated “the way she spoke… made me think that she was sourcing something for herself”. She explained further “on a Friday afternoon it was only the two of us (the applicant and the witness); she said it was a difficult time and she needed R5000.00 now. I thought she was joking, after that I said “see you Tuesday, she did not respond, I said bye and she left”. At that point I thought she was not serious, but Tuesday she was back and she stayed at my place to finish her job on time. On Wednesday morning, the students were having breakfast - she said - “you get out, I want to speak to your mother”; that’s when she told me - “give me that money” - I said I don’t get it, later there were sms’s and she told me that I will see her true colours and that I will regret the day I met her. Over the weekend the children did not want to eat - then they were in the shower for the whole day and started complaining that they did not want to share the bathroom with others. I was getting attitude from that student and she (the student) started travelling with Ms Mahlasela (the applicant) - then the applicant said to me “the students are complaining about you…” She was the middle person between me and the students. I was expected to give student’s money R200.00 when they would leave for holidays and also to buy them cosmetics”. During cross examination the witness confirmed that she wrote the statement on page 170 of the bundle marked B. She also confirmed that the applicant stayed over at her residence several times and that they were friends. He then asked the witness whether she had given the applicant R5000 - the witness stated “no”. He then put it to the witness that the applicant was a community leader and asked he whether she the witness) was aware that the applicant would assist students all over - the witness responded by saying “no, Dobsonville and Molapo not all over”. He then concluded by asking the witness whether she ever sought assistance from the applicant. The witness stated “yes, she showed me a factory in Benoni where I could buy furniture”.
19. There were no questions posed to the witness in re-examination.
The Applicant’s submissions
The 5th witness and applicant herein testified under oath as follows:
20. She had been employed with the respondent for a period of 15 years as a lecturer - Marketing, Advertising and Promotions as well as the graphic design programme. The applicant was referred to page 1 of the bundle marked A and asked to read the charges as per the notice to attend the disciplinary hearing. The applicant complied. The applicant’s representative then asked her to explain who had given her an instruction to assist students with accommodation. The applicant stated “the campus manager Busisiwe Statu, Mr Makhaphela, Tshepo Madubung, the student support manager and Noziwe Norekwe, the campus assistant”. He then asked the applicant to explain how she knew Ms Mthembu. The applicant stated “since 2012 when I was called by Ms Hlongwane, a lecturer at Dobsonville campus; when Ms Mthembu had a problem with her son - he was a drunkard and drugs, so I went there to help the son, I counselled Ms Mthembu’s son - after I organised school for him in Roodepoort campus, level 1 and 2 - mechanical engineering her son attended with my eldest sisters son - after Ms Mthembu and I became friends. During 2013 Ms Mthembu called me - we had a good relationship - and told me about a problem she had; her daughter was attending a boarding school and she needed money to pay this when I asked Zinhle Buthelezi from KZN and Ms Lombewu - so I explained to them the problem; the whole of 2013 Ms Mthembu accommodated the 2 lecturers. During part-time classes we use to knock off late and so Mthembu offered me to sleep over so I did - and that’s how the relationship started. At the end of 2013 the lecturers moved out and got their own flats; Mthembu came to the college looking for me and asked if there were more lecturers she could accommodate. So I introduced Mthembu to Tshepo Madubung, Nompilo and Mr Makhaphela, that’s when all 3 looked at the area and that’s when students started staying there; there were students from Mpumalanga, Limpopo, Free State and other areas - that’s when we started to bond. After I started to view her place - I realised that most of the things were not there, bed, blankets, pots and that’s when Ms Mthembu came to me and say “please assist organise some of the things to put in place for the students”. She started borrowing money, we would view bunk beds in industrial areas; I borrowed her money there was no mirrors, stoves or pots. If students needed help - they would ask me - to borrow R1000.00 I was concerned that the students were being disadvantaged. Mam Molokwane also went to student support and she was referred to me, because I knew most of the students from this areas. Molokwane and Mthembu were in the same situation with nothing for the kids; that’s when I was accompanied them to Benoni - for the fridge, stove, microwave, pots and bed… after June 2014 … R5000.00 was given back. That’s when students and landlord start to clash. Molokwane had 8-10 students and Mthembu had a mix. I gave students money if NSFAS didn’t pay timeously.” The applicant’s representative then asked her what made her assist the students, as she was supposed to have had permission to do so. The applicant stated “yes, so the campus manager”. He then followed up - how much did you borrow Mthembu? The applicant responded “I think R10 800.00 with the mattress.” She explained further the R10 000.00 was made up of “double bunk bed without sponge, fridge x1 small fridge, microwave, mattress/sponges, bedding and pots”. He applicant went on to say “I gave her R10 000.00 in cash - I trusted her as we had a relationship because of her son, I regarded her as my sister”. He then asked the applicant why Mthembu said you demanded money from her, the applicant said “I never did that but I asked her to pay me back the money I borrowed her”. He then referred her to the resolution 1 of 2003 and asked her to read clause 4.1 and 4.2. The applicant complied with same. He then asked her to explain what she understood from these clauses. The applicant stated “It shows, if a lecturer or person in charge of class of learner does academics and non-academics … since I don’t have my own biological child if I see children suffering I will contact the parent or counsel them, because children cannot produce especially if their basic necessities are not met; as a community leader I work with different students, I help with homework and sport”.
21. During cross examination the respondent’s representative asked the applicant - “was it your duty as marketing lecturer to assist/counsel students?” the applicant stated “yes, if kids are always upset it affect their attention”. He then asked her what she understood about the student support office, the applicant stated “it is to help students with what they are in need of”. He then put it to the applicant - so you did the work of the student support - the applicant stated “I assisted them”. He then asked her whether she received an instruction from the student support manager to assist these students - the applicant sated “100%”. He then followed up the question, how did you receive that instruction, the applicant stated “Mr Makhaphela or Statu call me in the office out of my class… verbally”. He then asked the applicant whether she assisted students voluntarily without payment. The applicant stated “yes”. He then put it to her that she was lying and that she had received an income. The applicant stated “no, I never received any money from Mthembu; instead I gave food, pots and things”. He then asked her who had approached her. She stated “Madubung and Makhaphela, I was not alone lots of lecturers assisted students cos I love my students, and that’s the link”. He then asked her to explain the R5 000.00 in June of 2014 - what was that for? The applicant stated “for Mthembu to buy facilities” he then asked how was the money exchanged; the applicant confirmed that it was in cash. He then asked her whether student support was aware of that transaction with money. The applicant stated “Statu knew that …don’t put lot facilities…” He then followed up - did they authorise that - the applicant stated “Statu verbally authorised to take students and accommodate” he then probed further - was there anything reduced to writing, the applicant stated “no”. The respondent’s representative then put it to the applicant that “you created a structure so that you could take and give money and you were not authorised to do that”. The applicant stated “no, not do that, my husband is a top manager in Sasol, I am not hungry for money - we are wealthy. I am from a wealthy family”. He then put it to her that “you paid R10 800.00 to purchase inventory, did the college know that” the applicant stated “I informed Nkosi the campus principal that I had to take out of my own pocket as the students in Dobsonville were suffering”. He then asked her “you said that supply chain management knew of the transactions”, the applicant said “no, not talk of money; they knew I helped students with food accommodation and transport”. He then put it to her “that’s my problem, 3 minutes ago you said yes and now no”. The applicant stated “you were talking of chain management, but yes I use to be vocal”. He put it to her that she stayed over a Mthembu’s place to solicit money and manipulate the service provider. The applicant maintained that she had Mthembu’s permission to stay over. He concluded by asking the applicant about the relationship with management including the council. The applicant said “it was excellent”.
22. The 2nd respondent’s representative did not pose any questions to the applicant herein.
23. There were not relevant questions posed by the applicant’s representative during re-examination.
The 6th witness, Ms Noxolo Radebe [member of the public/ service provider], testified under oath as follows:
24. During examination in chief the witness confirmed that the knew the applicant and confirmed further that the applicant referred student’s from Dobsonville to reside at her place. She confirmed that she knew the applicant with effect from 2015. The witness confirmed that the applicant referred two blind students and her observation of the applicant - was that she was very helpful; she (the applicant) assisted with blankets, clothes and necessities whilst those students were busy applying for money for their accommodation. She went on to say that the applicant visited her place, saw that there were no basic necessities, like a mattresses that’s when she (the applicant) called Mthembu and asked if it’s not in use - she will come to collect it for the two blind students. When they arrived at Mthembu’s place she (Mthembu) was not there - she mentioned that she also overheard a conversation about money. During cross examination the respondent’s representative asked the witness to explain what she overheard from the conversation between the applicant and Mthembu; the witness stated as follows “the applicant greeted Mthembu and asked her, can you help with mattress you are not using, there are 2 students that have no mattress to sleep on …. Then the applicant said: you gonna still give those monies you owe me”. He then asked the witness whether she knew what the monies were about. The witness said that she did enquire and the applicant informed her that Mthembu had borrowed money from her. He then asked the witness whether the applicant had referred any students to her. The witness stated “no”. He then asked her who paid for the student’s accommodation. The witness confirmed that the student’s had paid. He then asked her whether she had a contract with the college to provide accommodation. The witness sated “no”. There were no relevant questions posed to this witness in re-examination.
The 7th witness, Ms Morongwa Dlikilili [PL 1 Lecturer], testified under oath as follows:
25. During examination in chief the witness stated that she has been employed as a lecturer for a period of 18 years. She confirmed that she was aware of students who were assisted by lecturers and confirmed further that she too was one of the lecturers that assisted students - even to the extent that students stayed with her at her home; she submitted that she alerted the campus principal (Statu) of the fact that the students were residing with her.
26. During cross examination the respondent’s representative asked the witness whether she was aware of the charges’ as per page 1 of the bundle marked A. The witness confirmed that she was not aware until she was told by the shop steward of the trade union. He then put it to the witness that her engagement or assistance was in violation of the supply chain management policies. The witness stated “because I reported it to the principal that I could not allow a student, not to write their exam - as a teacher you must help the child”. He then asked her whether the applicant had accommodated a student at her home. The witness stated “yes”. There were no questions posed to the witness by the 2nd respondent’s representative. There were also no questions posed by the applicant’s representative in re-examination.
The 10th witness, Ms Mapulane Koapeng [pensioner/ previously a lecturer at South West College], testified under oath as follows:
27. She confirmed that he was employed by the college as a senior lecturer for music, for a period of 25 years. She confirmed that she was aware of lecturers assisting students and further confirmed that she too was one of those lecturers who had done so. He then asked her whether she was aware of student support that assisted students. The witness stated “as black people we help each other out, to be a lecturer is a calling; there are students from different places and we need to assist where possible and also work with the student support department in that regard”. The witness was referred to the reverse of page 156 on the bundle marked B and asked to read clause 3.1.1. The witness complied. He then asked her to explain her understanding of the clause. The witness explained that the learner must feel safe therefor to assist the student would be correct - she also referenced to ‘Ubuntu’ in this regard. During cross examination the respondent’s representative asked the witness whether Tshepo Madubung ever instructed her to assist with accommodation as a lecturer. The witness stated “there was no instruction but you are able to assist”. He then asked the witness if she was ever instructed to accommodate students and specifically if she was ever involved in the exchange of money. The witness stated “no, the question about instruction I remember it was with Statu - it was not an instruction I involved with her and the applicant took students to accommodate after they had written an exam. The campus manager knew we were accommodating students but my answer remains no”.
28. I also posed clarifying questions to this witness - firstly: how did you assist students? The witness explained that she would provide mattresses. I then followed up - did you sell these items? The witness stated “no, all was given for free”. I then asked her to explain her interaction with the service providers. The witness explained “I would go and meet and inspect the rooms to see if it would meet the needs of the student”.
29. During re-examination the applicant’s representative asked the witness if she was aware that Tshepo Madubung referred students to Mthembu’s place. The witness confirmed that she was indeed aware of same. He then asked her if there were other lecturers who did the same. The witness confirmed that she did not know of other lecturers.
The 11th witness, Mr Tshepo Madubung [student support service manager], testified under oath as follows:
30. He has been employed by the college from 2012 a student support officer and was promoted in 2018 as a manager. He confirmed that his office was aware of lecturers assisting students with accommodation. He confirmed that he knew the applicant. The applicant’ representative then asked him whether he had received any complaints about the applicant. The witness stated “not specifically from the students”. He confirmed that he knew Mthembu and confirmed further that he had not received any complaints from Mthembu concerning the applicant. During cross examination the respondent’s representative asked the witness to explain who he had reported to in 2012. The witness confirmed that he reported to Busisiwe Statu. He then asked the witness whether Statu had allowed the applicant to assist with accommodation. The witness stated “I can’t confirm that was a common practice”. He then asked the witnesses in which other manners were students assisted. The witness stated like I indicated in my statement in writing with clothing, food, pots etc. When questioned about the service providers (and 3rd and 4th witnesses) and any exchange of monies between the applicant and the service providers; the witness maintained that he had he could not comment and that he did not have any knowledge of that. During re-examination the applicant’s representative asked the witness whether students must be from a poor background in order for them to be provided with assistance. The witness stated “I don’t think so”.
ANALYSIS OF SUBMISSIONS AND ARGUMENT
31. In terms of section 192 of the LRA an employee is required to show the existence of a dismissal. Once this is established the onus shifts on the employer to prove that the dismissal was fair.
32. In this case there was no dispute that the applicant was dismissed; therefore the onus rests with the respondent to prove that the applicant’s dismissal was procedurally and substantively fair.
Substantive fairness
33. According to page 1 of the bundle marked A - the applicant was charged as follows:
“Charge 1 - Soliciting money from Ms E Mthembu in return for your referring students to rent at the premises situated at 2271B Meadowlands Zone 9, Soweto, 1852.
Charge 2 - Breach of the Disciplinary Code and Procedures for the Public Service, Annexure A “Accepts any compensation in cash or otherwise from a member of the public or another employee for performing her or his duties without written approval form the department”.”
34. On 7 June 2016 the chairperson found the applicant guilty on both charges and implemented a sanction of dismissal.
35. Both charges 1 and 2 emanate from the same issue. The applicant is alleged to have solicited money from a service provider (Ms Mthembu) in exchange for her (the applicant) referring students to reside at her (Ms Mthembu’s) residence / premises. It is also a breach of the respondent’s disciplinary code and procedures for the applicant to “accept any compensation in cash or otherwise from a member of the public for the performance of her duties”.
36. The applicant herein testified that she had received an instruction from management to assist students with accommodation and the evidence of the 6th and 10th witness confirmed that lecturers were indeed assisting students with basic necessities and accommodation. However the main crux of the matter - was whether the applicant sought to obtain a financial benefit in exchange for referring students to reside at the service providers (and 3rd witness’s) residence/ premises.
37. There were various inconsistencies with regard to the applicant’s version of events. At paragraph 13, supra, the 3rd witness testified that the applicant demanded money from her; and that she (3rd witness) would make payments to the applicant at the end of the month in cash. Lastly, she testified that the applicant would stay and/ or ‘sleep over’ at her place without asking permission to do so. During cross examination the 3rd witness confirmed that she had given the applicant money in 2014 and that she had ceased to do so in 2015. Although the applicant’s representative asked the 3rd witness (at paragraph 14) who assisted her in purchasing a mattress, sponge and fridge - her (the 3rd witness’s) response was that no-one had assisted her to purchase these items; the applicant’s version that she had lent the 3rd witness money in order for her to purchase these items - was never put to the 3rd witness.
38. The applicant also testified at paragraph 20, that Mthembu “offered me to sleep over so I did...” - Mthembu on the other hand testified that the applicant slept over without asking her permission to do so - again the applicant did not dispute the 3rd witness’s version - by placing her own version to the 3rd witness in that regard. Therefore the 3rd witness’s version was not challenged in this respect.
39. The applicant also testified at paragraph 20, that when she viewed the 3rd witness’s residence she realised that she did not possess the basic necessities and further submitted that the 3rd witness requested her assistance - to put those items in place - and further to that that the 3rd witness had borrowed money from her (the applicant) - these versions were also never put to the 3rd witness during her cross examination; thus the evidence was not tested.
40. The applicant was privy as to when NSFAS would pay the students their monies - and was even assisting students financially through her own testimony, at paragraph 20, it became evident during these proceedings that she was too involved “financially” with the students - and this begs the question - as to why? To an extent her ‘involvement’ with the students - corroborated the 4th witness’s statement (see paragraph 18, supra): “She was the middle person between me and the students. I was expected to give student’s money R200.00 when they would leave for holidays and also to buy them cosmetics”. Through the applicant’s own version it became evident that she did in fact receive money from the 3rd witness (see paragraph 20) “… after 2014… R5000.00 was given back”, however it was not stated unequivocally, she alluded that she had lent the 3rd witness monies to purchase a fridge, microwave etc. - it was only when her own representative asked her “why had Mthembu said that you demanded money from her?” did the applicant state “I never did that - but I asked her to pay me back the money I borrowed her”(underlining is for my emphasis) - the applicant initially denies making any demand and immediately thereafter concedes that she requested to be ‘paid back money’ she had purportedly loaned the 3rd witness - hence the applicant contradicted herself and was not clear nor was she consistent in her version and more importantly - she failed to put her version (that she had loaned the 3rd witness money) to the 3rd witness at all.
41. With regard to the 6th witness - even though she was also a service provider unlike the 3rd and 4th witnesses she did not have a contract with the respondent and therefore was not in the same position as the other 2 service providers. However what emerged from her testimony was that she accompanied the applicant in 2015 to Mthembu’s residence to collect ‘the mattress’ - coincidentally the 3rd witness testified that was the same year she had ceased making payments to the applicant.
42. The 10th witness (who was also a lecturer) testified that items such as a mattress for example, was given away “free of charge” and that her interaction with service providers were minimal - she would basically view the accommodation in order to see if it met the needs of the student.
43. Taking into account the matter in its totality and after hearing all the evidence and argument I find that the applicant’s involvement with the service providers was excessive and that she had compromised herself in this regard. I was not convinced with her argument that she wanted to assist students - had she genuinely wanted to assist the students - she should have done so - to the extent of the 10th witness without expecting anything in return. Furthermore when she noticed that the 3rd witness did not have basic necessities to adequately provide for the students - she ought to have reported that the student support services, if she was acting in the interest of the students; therefore I find that based on the evidence of the 3rd and 4th witnesses’ (who I found to be consistent in their version of events) together with the fact that the applicant failed to put her version to the 3rd witness - that the respondent had succeeded in proving that the applicant’s dismissal was substantively fair.
44. In light of the above I find that the respondent had a valid reason for dismissing the applicant.
Procedural fairness
45. In terms of Schedule 8 Code of Good Practice: Dismissal as contained in the LRA; Item 4 stipulates that the disciplinary hearing need not be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare a response. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
46. I perused the transcript of the disciplinary hearing as well as the outcome report and find that the applicant’s dismissal was procedurally fair.
AWARD
47. I find that the applicant’s dismissal was procedurally and substantively fair.
48. The applicant’s dismissal is upheld.
49. No order as to costs.
Signature:
Commissioner: L. Naidoo
Sector: ELRC
Province: Gauteng
Applicant: MAHLASELA S
Respondent: 1st Respondent DEPARTMENT OF HIGHER EDUCATION AND TRAINING, 2nd Respondent SOUTH WEST GAUTENG TVET COLLEGE
Issue: Unfair Dismissal - Constructive Dismissal
Venue: South West Gauteng TVET College, situated in Soweto,
Award Date: 29 April 2019
Arbitrator: L. Naidoo
Case Number: ELRC91-16/17GP
Commissioner: L. Naidoo
Date of Award: 29 April 2019
In the ARBITRATION between
MAHLASELA S
(Union/Applicant)
And
DEPARTMENT OF HIGHER EDUCATION AND TRAINING
(1ST Respondent)
SOUTH WEST GAUTENG TVET COLLEGE
(2ND Respondent)
Union/Applicant’s representative: Mr P Bongwe
Union/Applicant’s address:
Telephone: 081 3407012
Telefax: 011 836 4856
E-mail: prince@nehawu.org.za
Respondent’s representative: Mr S Carney
Respondent’s address: Corner Koma & Molele Road
Molapo Section
Soweto
Telephone: 086 176 8849
Telefax: 011 984 1262
E-mail: carneys@swgc.co.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down for arbitration, which was held South West Gauteng TVET College, situated in Soweto, at 09h00 on 5 July 2018, 8 November 2018, 4, 7, 26 & 27 February 2019.
2. These proceedings were digitally recorded by the ELRC.
3. The applicant was present and represented by Mr P Bongwe, a trade union official.
4. The respondents were represented by Mr S Carney.
ISSUE TO BE DECIDED
5. I am required to decide, whether the applicant’s dismissal was substantively and/or procedurally fair. If not, to grant the appropriate relief.
6. There was no dispute that the applicant was dismissed; therefore in terms of section 192(2) of the Labour Relations Act (“the LRA”) the respondent bore the onus to prove that the applicant’s dismissal was both substantively and procedurally fair.
BACKGROUND TO THE ISSUE
7. The applicant was employed on 1 February 2006 as Marketing and Graphic design lecturer.
8. On 2 November 2016 the applicant was dismissed based on the outcome of the disciplinary hearing.
9. The applicant requested to be reinstated as relief for her alleged unfair dismissal.
10. There were 12 witnesses that testified herein however for the sake of brevity I will only record the evidence I considered relevant in making a determination insofar as the unfair dismissal dispute is concerned.
SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s evidence and argument
The 3rd witness, Ms Elizabeth Mthembu [member of the public], testified under oath as follows:
11. She was requested to read into the record page 21 of the bundle marked A - which she complied. She then explained that “I met the applicant in 2013 when she (the applicant) provided me a teacher to accommodate in my residence”. She explained that her accommodation in Meadowlands was used to accommodate students (from the college) referred by the applicant.
12. The respondent’s representative then referred the witness to the third paragraph of the said document (page 21) and asked the witness why she paid the applicant an amount R2000.00 and probed further as to what services did the applicant provide. The witness explained that “she brought me student’s; when I first knew the applicant in 2013 she gave me 1 teacher and 1 student, later in 2014 she gave me another student, thereafter when the school re-opened in July 2014 - the applicant gave me 10 students, in 2015 the applicant gave me 15 students - the problem came when she needed to be paid R2000.00”.
13. The respondent’s representative then asked the witness whether she thought that the applicant was a representative of the college. The witness stated “yes”. He then asked her if she was aware of who dealt with student support at Dobsonville campus. The witness stated “I knew Tshepo Madubung after our fight”. The witness then explained that there was a fight between herself and the applicant when the students were taken. The witness explained further that “I thought that the applicant worked with Mr Madubung as they would come together with the students - to show them where they would be living - but when the money was collected Mr Madubung was not there”. The respondent’s representative then asked where was the money collected. The witness explained that it was at her home. The respondent’s representative then read paragraph 5 of the document on page 21 and asked the witness to explain that. The witness stated “the applicant was not at school for a certain number of months and the money accumulated so it came to that amount, because when she is not at school she can’t come to my house to collect and that was between October - November 2014”. The witness explained that was when she refused to pay the applicant - after attending a meeting she realised that she was not supposed to be paying the applicant at all. When probed as to the meeting. She explained that the meeting was held at head office (with Mr Makhaphela and Mr Munyamane) and they were advised as to how students were to behave and that they should not bunk and stay at the accommodation. She went on to say that meeting also dealt with issues of money being solicited for accommodating students at the college. The respondent then asked the witness to explain the fight between herself and the applicant. The witness explained “it started when the applicant demanded money and she said all sorts of things to me. When she (the applicant) heard she (the witness) got payments she would come to my house and demand R8000.00 for a funeral; she (the applicant) would make sure that when she comes to my house there are no students there, so she would come on her lunch break”. The respondent’s representative then read paragraph 6 on page 21 and asked the witness to explain. The witness stated “the applicant caused a lot of pain, she took a bed without permission; the applicant is a bully and has no respect for others.” She went on to say “she would bad mouth me to the students and did not have any respect for me - she would influence the children to also not respect me”. The respondent then asked the witness about the frequency of the payments - and the witness submitted that payments were made at the end of the month in cash she went on to say that she suggested doing a deposit but the applicant insisted on cash. The witness was asked to explain how this had affected her. She explained that it had seriously affected her as the applicant would also sleep over at her place without asking.
14. During cross examination the applicant’s representative asked the witness when she started accommodating children. The witness stated in 2013. He queried how many students she was accommodating in 2013. The witness stated “2 teachers and 1 student”. He then asked her about the number of students she was accommodating in 2014 - “from January to June I had 8 students and when the school reopened I had 10 students”. She confirmed further that although she could not recall the names of all the students she accommodated, she kept a record of it.
15. He then asked who had assisted her purchase a mattress, sponges and a fridge. The witness stated that no one had helped her with that.
16. The applicant’s representative then put it to the witness as follows: “earlier you claimed that you gave her (the applicant) money, why because the college informed you not to do so”. The witness responded: “I already gave; I stopped when I heard not to…” She confirmed further that she had given the applicant money in 2014 and not in 2015. The applicant’s representative then requested the witness to provide proof that she had given money to the applicant. The witness submitted that there was no proof as there was a cash handover. He then asked her whether anyone witnessed the exchange of money. The witness stated “she would collect it during her break”. He then read the witness’s affidavit into the record - and asked her whether she had paid the applicant R2000.00. The witness stated “yes. I did pay”. He then asked her when she stopped paying the applicant; the witness stated “In October 2014”.
17. During re-examination the respondent’s representative asked the witness whether there was any reason for her to be untruthful. The witness stated “there is no purpose”.
The 4th witness, Ms Florence Keheilwe Molokwane [member of the public/ service provider], testified under oath as follows:
18. During examination in chief she read her statement into the record. She confirmed that the applicant would frequent her residence 3-4 times per week; to check if the students have settled and she also stated “the way she spoke… made me think that she was sourcing something for herself”. She explained further “on a Friday afternoon it was only the two of us (the applicant and the witness); she said it was a difficult time and she needed R5000.00 now. I thought she was joking, after that I said “see you Tuesday, she did not respond, I said bye and she left”. At that point I thought she was not serious, but Tuesday she was back and she stayed at my place to finish her job on time. On Wednesday morning, the students were having breakfast - she said - “you get out, I want to speak to your mother”; that’s when she told me - “give me that money” - I said I don’t get it, later there were sms’s and she told me that I will see her true colours and that I will regret the day I met her. Over the weekend the children did not want to eat - then they were in the shower for the whole day and started complaining that they did not want to share the bathroom with others. I was getting attitude from that student and she (the student) started travelling with Ms Mahlasela (the applicant) - then the applicant said to me “the students are complaining about you…” She was the middle person between me and the students. I was expected to give student’s money R200.00 when they would leave for holidays and also to buy them cosmetics”. During cross examination the witness confirmed that she wrote the statement on page 170 of the bundle marked B. She also confirmed that the applicant stayed over at her residence several times and that they were friends. He then asked the witness whether she had given the applicant R5000 - the witness stated “no”. He then put it to the witness that the applicant was a community leader and asked he whether she the witness) was aware that the applicant would assist students all over - the witness responded by saying “no, Dobsonville and Molapo not all over”. He then concluded by asking the witness whether she ever sought assistance from the applicant. The witness stated “yes, she showed me a factory in Benoni where I could buy furniture”.
19. There were no questions posed to the witness in re-examination.
The Applicant’s submissions
The 5th witness and applicant herein testified under oath as follows:
20. She had been employed with the respondent for a period of 15 years as a lecturer - Marketing, Advertising and Promotions as well as the graphic design programme. The applicant was referred to page 1 of the bundle marked A and asked to read the charges as per the notice to attend the disciplinary hearing. The applicant complied. The applicant’s representative then asked her to explain who had given her an instruction to assist students with accommodation. The applicant stated “the campus manager Busisiwe Statu, Mr Makhaphela, Tshepo Madubung, the student support manager and Noziwe Norekwe, the campus assistant”. He then asked the applicant to explain how she knew Ms Mthembu. The applicant stated “since 2012 when I was called by Ms Hlongwane, a lecturer at Dobsonville campus; when Ms Mthembu had a problem with her son - he was a drunkard and drugs, so I went there to help the son, I counselled Ms Mthembu’s son - after I organised school for him in Roodepoort campus, level 1 and 2 - mechanical engineering her son attended with my eldest sisters son - after Ms Mthembu and I became friends. During 2013 Ms Mthembu called me - we had a good relationship - and told me about a problem she had; her daughter was attending a boarding school and she needed money to pay this when I asked Zinhle Buthelezi from KZN and Ms Lombewu - so I explained to them the problem; the whole of 2013 Ms Mthembu accommodated the 2 lecturers. During part-time classes we use to knock off late and so Mthembu offered me to sleep over so I did - and that’s how the relationship started. At the end of 2013 the lecturers moved out and got their own flats; Mthembu came to the college looking for me and asked if there were more lecturers she could accommodate. So I introduced Mthembu to Tshepo Madubung, Nompilo and Mr Makhaphela, that’s when all 3 looked at the area and that’s when students started staying there; there were students from Mpumalanga, Limpopo, Free State and other areas - that’s when we started to bond. After I started to view her place - I realised that most of the things were not there, bed, blankets, pots and that’s when Ms Mthembu came to me and say “please assist organise some of the things to put in place for the students”. She started borrowing money, we would view bunk beds in industrial areas; I borrowed her money there was no mirrors, stoves or pots. If students needed help - they would ask me - to borrow R1000.00 I was concerned that the students were being disadvantaged. Mam Molokwane also went to student support and she was referred to me, because I knew most of the students from this areas. Molokwane and Mthembu were in the same situation with nothing for the kids; that’s when I was accompanied them to Benoni - for the fridge, stove, microwave, pots and bed… after June 2014 … R5000.00 was given back. That’s when students and landlord start to clash. Molokwane had 8-10 students and Mthembu had a mix. I gave students money if NSFAS didn’t pay timeously.” The applicant’s representative then asked her what made her assist the students, as she was supposed to have had permission to do so. The applicant stated “yes, so the campus manager”. He then followed up - how much did you borrow Mthembu? The applicant responded “I think R10 800.00 with the mattress.” She explained further the R10 000.00 was made up of “double bunk bed without sponge, fridge x1 small fridge, microwave, mattress/sponges, bedding and pots”. He applicant went on to say “I gave her R10 000.00 in cash - I trusted her as we had a relationship because of her son, I regarded her as my sister”. He then asked the applicant why Mthembu said you demanded money from her, the applicant said “I never did that but I asked her to pay me back the money I borrowed her”. He then referred her to the resolution 1 of 2003 and asked her to read clause 4.1 and 4.2. The applicant complied with same. He then asked her to explain what she understood from these clauses. The applicant stated “It shows, if a lecturer or person in charge of class of learner does academics and non-academics … since I don’t have my own biological child if I see children suffering I will contact the parent or counsel them, because children cannot produce especially if their basic necessities are not met; as a community leader I work with different students, I help with homework and sport”.
21. During cross examination the respondent’s representative asked the applicant - “was it your duty as marketing lecturer to assist/counsel students?” the applicant stated “yes, if kids are always upset it affect their attention”. He then asked her what she understood about the student support office, the applicant stated “it is to help students with what they are in need of”. He then put it to the applicant - so you did the work of the student support - the applicant stated “I assisted them”. He then asked her whether she received an instruction from the student support manager to assist these students - the applicant sated “100%”. He then followed up the question, how did you receive that instruction, the applicant stated “Mr Makhaphela or Statu call me in the office out of my class… verbally”. He then asked the applicant whether she assisted students voluntarily without payment. The applicant stated “yes”. He then put it to her that she was lying and that she had received an income. The applicant stated “no, I never received any money from Mthembu; instead I gave food, pots and things”. He then asked her who had approached her. She stated “Madubung and Makhaphela, I was not alone lots of lecturers assisted students cos I love my students, and that’s the link”. He then asked her to explain the R5 000.00 in June of 2014 - what was that for? The applicant stated “for Mthembu to buy facilities” he then asked how was the money exchanged; the applicant confirmed that it was in cash. He then asked her whether student support was aware of that transaction with money. The applicant stated “Statu knew that …don’t put lot facilities…” He then followed up - did they authorise that - the applicant stated “Statu verbally authorised to take students and accommodate” he then probed further - was there anything reduced to writing, the applicant stated “no”. The respondent’s representative then put it to the applicant that “you created a structure so that you could take and give money and you were not authorised to do that”. The applicant stated “no, not do that, my husband is a top manager in Sasol, I am not hungry for money - we are wealthy. I am from a wealthy family”. He then put it to her that “you paid R10 800.00 to purchase inventory, did the college know that” the applicant stated “I informed Nkosi the campus principal that I had to take out of my own pocket as the students in Dobsonville were suffering”. He then asked her “you said that supply chain management knew of the transactions”, the applicant said “no, not talk of money; they knew I helped students with food accommodation and transport”. He then put it to her “that’s my problem, 3 minutes ago you said yes and now no”. The applicant stated “you were talking of chain management, but yes I use to be vocal”. He put it to her that she stayed over a Mthembu’s place to solicit money and manipulate the service provider. The applicant maintained that she had Mthembu’s permission to stay over. He concluded by asking the applicant about the relationship with management including the council. The applicant said “it was excellent”.
22. The 2nd respondent’s representative did not pose any questions to the applicant herein.
23. There were not relevant questions posed by the applicant’s representative during re-examination.
The 6th witness, Ms Noxolo Radebe [member of the public/ service provider], testified under oath as follows:
24. During examination in chief the witness confirmed that the knew the applicant and confirmed further that the applicant referred student’s from Dobsonville to reside at her place. She confirmed that she knew the applicant with effect from 2015. The witness confirmed that the applicant referred two blind students and her observation of the applicant - was that she was very helpful; she (the applicant) assisted with blankets, clothes and necessities whilst those students were busy applying for money for their accommodation. She went on to say that the applicant visited her place, saw that there were no basic necessities, like a mattresses that’s when she (the applicant) called Mthembu and asked if it’s not in use - she will come to collect it for the two blind students. When they arrived at Mthembu’s place she (Mthembu) was not there - she mentioned that she also overheard a conversation about money. During cross examination the respondent’s representative asked the witness to explain what she overheard from the conversation between the applicant and Mthembu; the witness stated as follows “the applicant greeted Mthembu and asked her, can you help with mattress you are not using, there are 2 students that have no mattress to sleep on …. Then the applicant said: you gonna still give those monies you owe me”. He then asked the witness whether she knew what the monies were about. The witness said that she did enquire and the applicant informed her that Mthembu had borrowed money from her. He then asked the witness whether the applicant had referred any students to her. The witness stated “no”. He then asked her who paid for the student’s accommodation. The witness confirmed that the student’s had paid. He then asked her whether she had a contract with the college to provide accommodation. The witness sated “no”. There were no relevant questions posed to this witness in re-examination.
The 7th witness, Ms Morongwa Dlikilili [PL 1 Lecturer], testified under oath as follows:
25. During examination in chief the witness stated that she has been employed as a lecturer for a period of 18 years. She confirmed that she was aware of students who were assisted by lecturers and confirmed further that she too was one of the lecturers that assisted students - even to the extent that students stayed with her at her home; she submitted that she alerted the campus principal (Statu) of the fact that the students were residing with her.
26. During cross examination the respondent’s representative asked the witness whether she was aware of the charges’ as per page 1 of the bundle marked A. The witness confirmed that she was not aware until she was told by the shop steward of the trade union. He then put it to the witness that her engagement or assistance was in violation of the supply chain management policies. The witness stated “because I reported it to the principal that I could not allow a student, not to write their exam - as a teacher you must help the child”. He then asked her whether the applicant had accommodated a student at her home. The witness stated “yes”. There were no questions posed to the witness by the 2nd respondent’s representative. There were also no questions posed by the applicant’s representative in re-examination.
The 10th witness, Ms Mapulane Koapeng [pensioner/ previously a lecturer at South West College], testified under oath as follows:
27. She confirmed that he was employed by the college as a senior lecturer for music, for a period of 25 years. She confirmed that she was aware of lecturers assisting students and further confirmed that she too was one of those lecturers who had done so. He then asked her whether she was aware of student support that assisted students. The witness stated “as black people we help each other out, to be a lecturer is a calling; there are students from different places and we need to assist where possible and also work with the student support department in that regard”. The witness was referred to the reverse of page 156 on the bundle marked B and asked to read clause 3.1.1. The witness complied. He then asked her to explain her understanding of the clause. The witness explained that the learner must feel safe therefor to assist the student would be correct - she also referenced to ‘Ubuntu’ in this regard. During cross examination the respondent’s representative asked the witness whether Tshepo Madubung ever instructed her to assist with accommodation as a lecturer. The witness stated “there was no instruction but you are able to assist”. He then asked the witness if she was ever instructed to accommodate students and specifically if she was ever involved in the exchange of money. The witness stated “no, the question about instruction I remember it was with Statu - it was not an instruction I involved with her and the applicant took students to accommodate after they had written an exam. The campus manager knew we were accommodating students but my answer remains no”.
28. I also posed clarifying questions to this witness - firstly: how did you assist students? The witness explained that she would provide mattresses. I then followed up - did you sell these items? The witness stated “no, all was given for free”. I then asked her to explain her interaction with the service providers. The witness explained “I would go and meet and inspect the rooms to see if it would meet the needs of the student”.
29. During re-examination the applicant’s representative asked the witness if she was aware that Tshepo Madubung referred students to Mthembu’s place. The witness confirmed that she was indeed aware of same. He then asked her if there were other lecturers who did the same. The witness confirmed that she did not know of other lecturers.
The 11th witness, Mr Tshepo Madubung [student support service manager], testified under oath as follows:
30. He has been employed by the college from 2012 a student support officer and was promoted in 2018 as a manager. He confirmed that his office was aware of lecturers assisting students with accommodation. He confirmed that he knew the applicant. The applicant’ representative then asked him whether he had received any complaints about the applicant. The witness stated “not specifically from the students”. He confirmed that he knew Mthembu and confirmed further that he had not received any complaints from Mthembu concerning the applicant. During cross examination the respondent’s representative asked the witness to explain who he had reported to in 2012. The witness confirmed that he reported to Busisiwe Statu. He then asked the witness whether Statu had allowed the applicant to assist with accommodation. The witness stated “I can’t confirm that was a common practice”. He then asked the witnesses in which other manners were students assisted. The witness stated like I indicated in my statement in writing with clothing, food, pots etc. When questioned about the service providers (and 3rd and 4th witnesses) and any exchange of monies between the applicant and the service providers; the witness maintained that he had he could not comment and that he did not have any knowledge of that. During re-examination the applicant’s representative asked the witness whether students must be from a poor background in order for them to be provided with assistance. The witness stated “I don’t think so”.
ANALYSIS OF SUBMISSIONS AND ARGUMENT
31. In terms of section 192 of the LRA an employee is required to show the existence of a dismissal. Once this is established the onus shifts on the employer to prove that the dismissal was fair.
32. In this case there was no dispute that the applicant was dismissed; therefore the onus rests with the respondent to prove that the applicant’s dismissal was procedurally and substantively fair.
Substantive fairness
33. According to page 1 of the bundle marked A - the applicant was charged as follows:
“Charge 1 - Soliciting money from Ms E Mthembu in return for your referring students to rent at the premises situated at 2271B Meadowlands Zone 9, Soweto, 1852.
Charge 2 - Breach of the Disciplinary Code and Procedures for the Public Service, Annexure A “Accepts any compensation in cash or otherwise from a member of the public or another employee for performing her or his duties without written approval form the department”.”
34. On 7 June 2016 the chairperson found the applicant guilty on both charges and implemented a sanction of dismissal.
35. Both charges 1 and 2 emanate from the same issue. The applicant is alleged to have solicited money from a service provider (Ms Mthembu) in exchange for her (the applicant) referring students to reside at her (Ms Mthembu’s) residence / premises. It is also a breach of the respondent’s disciplinary code and procedures for the applicant to “accept any compensation in cash or otherwise from a member of the public for the performance of her duties”.
36. The applicant herein testified that she had received an instruction from management to assist students with accommodation and the evidence of the 6th and 10th witness confirmed that lecturers were indeed assisting students with basic necessities and accommodation. However the main crux of the matter - was whether the applicant sought to obtain a financial benefit in exchange for referring students to reside at the service providers (and 3rd witness’s) residence/ premises.
37. There were various inconsistencies with regard to the applicant’s version of events. At paragraph 13, supra, the 3rd witness testified that the applicant demanded money from her; and that she (3rd witness) would make payments to the applicant at the end of the month in cash. Lastly, she testified that the applicant would stay and/ or ‘sleep over’ at her place without asking permission to do so. During cross examination the 3rd witness confirmed that she had given the applicant money in 2014 and that she had ceased to do so in 2015. Although the applicant’s representative asked the 3rd witness (at paragraph 14) who assisted her in purchasing a mattress, sponge and fridge - her (the 3rd witness’s) response was that no-one had assisted her to purchase these items; the applicant’s version that she had lent the 3rd witness money in order for her to purchase these items - was never put to the 3rd witness.
38. The applicant also testified at paragraph 20, that Mthembu “offered me to sleep over so I did...” - Mthembu on the other hand testified that the applicant slept over without asking her permission to do so - again the applicant did not dispute the 3rd witness’s version - by placing her own version to the 3rd witness in that regard. Therefore the 3rd witness’s version was not challenged in this respect.
39. The applicant also testified at paragraph 20, that when she viewed the 3rd witness’s residence she realised that she did not possess the basic necessities and further submitted that the 3rd witness requested her assistance - to put those items in place - and further to that that the 3rd witness had borrowed money from her (the applicant) - these versions were also never put to the 3rd witness during her cross examination; thus the evidence was not tested.
40. The applicant was privy as to when NSFAS would pay the students their monies - and was even assisting students financially through her own testimony, at paragraph 20, it became evident during these proceedings that she was too involved “financially” with the students - and this begs the question - as to why? To an extent her ‘involvement’ with the students - corroborated the 4th witness’s statement (see paragraph 18, supra): “She was the middle person between me and the students. I was expected to give student’s money R200.00 when they would leave for holidays and also to buy them cosmetics”. Through the applicant’s own version it became evident that she did in fact receive money from the 3rd witness (see paragraph 20) “… after 2014… R5000.00 was given back”, however it was not stated unequivocally, she alluded that she had lent the 3rd witness monies to purchase a fridge, microwave etc. - it was only when her own representative asked her “why had Mthembu said that you demanded money from her?” did the applicant state “I never did that - but I asked her to pay me back the money I borrowed her”(underlining is for my emphasis) - the applicant initially denies making any demand and immediately thereafter concedes that she requested to be ‘paid back money’ she had purportedly loaned the 3rd witness - hence the applicant contradicted herself and was not clear nor was she consistent in her version and more importantly - she failed to put her version (that she had loaned the 3rd witness money) to the 3rd witness at all.
41. With regard to the 6th witness - even though she was also a service provider unlike the 3rd and 4th witnesses she did not have a contract with the respondent and therefore was not in the same position as the other 2 service providers. However what emerged from her testimony was that she accompanied the applicant in 2015 to Mthembu’s residence to collect ‘the mattress’ - coincidentally the 3rd witness testified that was the same year she had ceased making payments to the applicant.
42. The 10th witness (who was also a lecturer) testified that items such as a mattress for example, was given away “free of charge” and that her interaction with service providers were minimal - she would basically view the accommodation in order to see if it met the needs of the student.
43. Taking into account the matter in its totality and after hearing all the evidence and argument I find that the applicant’s involvement with the service providers was excessive and that she had compromised herself in this regard. I was not convinced with her argument that she wanted to assist students - had she genuinely wanted to assist the students - she should have done so - to the extent of the 10th witness without expecting anything in return. Furthermore when she noticed that the 3rd witness did not have basic necessities to adequately provide for the students - she ought to have reported that the student support services, if she was acting in the interest of the students; therefore I find that based on the evidence of the 3rd and 4th witnesses’ (who I found to be consistent in their version of events) together with the fact that the applicant failed to put her version to the 3rd witness - that the respondent had succeeded in proving that the applicant’s dismissal was substantively fair.
44. In light of the above I find that the respondent had a valid reason for dismissing the applicant.
Procedural fairness
45. In terms of Schedule 8 Code of Good Practice: Dismissal as contained in the LRA; Item 4 stipulates that the disciplinary hearing need not be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare a response. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
46. I perused the transcript of the disciplinary hearing as well as the outcome report and find that the applicant’s dismissal was procedurally fair.
AWARD
47. I find that the applicant’s dismissal was procedurally and substantively fair.
48. The applicant’s dismissal is upheld.
49. No order as to costs.
Signature:
Commissioner: L. Naidoo
Sector: ELRC