Case Number: PSES703-18/19NW
Province: North West
Applicant: Ms. VICTORIA MLAMBO
Respondent: 1st Respondent ORBIT TVET COLLEGE and 2nd Respondent DEPARTMENT OF HIGHER EDUCATION AND TRAINING
Issue: Unfair Dismissal - Misconduct
Venue: Orbit TVET College of Education, Corner Fatima & Bosch Street, Rustenburg.
Award Date: 7 September 2019
Arbitrator: Paul Phundu
Panellist: Paul Phundu
Case No: PSES703-18/19NW
Date of Award: 07 September 2019
In the matter between:
Ms. VICTORIA MLAMBO APPLICANT
ORBIT TVET COLLEGE FIRST RESPONDENT
DEPARTMENT OF HIGHER EDUCATION AND TRAINING SECOND RESPONDENT
Union/Applicant’s representative: Mr M. Megalane
6 Von Willingh Street
Respondent’s representative: Mr S. Mashinini
Fatima Bhayat Street
Fax: 014 592 7013
DETAILS OF HEARING AND REPRESENTATION
 This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and herein after referred to as the LRA. The matter was set-down for arbitration in terms of Section 191(5) (a) of the LRA.
 The arbitration hearing was conducted on 30 April and 26 August 2019 at Orbit TVET College of Education, Corner Fatima & Bosch Street, Rustenburg.
 The applicant attended the hearing and was represented by, Mr Megalane Megalane, Union Official from Nehawu. The respondent was represented by, Mr Sibusiso Mashinini, its Employee Relations Official.
 The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
 Both parties submitted bundles of documents marked Annexure “A” and “B”.
 The matter was dealt with by way of parties submitting written heads of arguments.
 No evidence was led during the sitting. Not all the facts are common cause.
ISSUE TO BE DECIDED
 Whether the Applicant reported for duty or not.
 I am called upon to determine whether or not the dismissal of Ms T Mlambo was substantively fair. Should I find that the Applicant’s dismissal was substantively unfair, I should decide on the appropriate remedy for such unfairness.
BACKGROUND TO THE ISSUE
Common cause facts
 Both parties agreed to submit written heads of arguments.
 The Applicant was appointed by the Respondent as a Lecturer since 1 March 2008 until her dismissal on 26 November 2018. Her salary at the time of dismissal was R22,126.25 rand per month.
 On the 11,12 and 13 September 2017 she appeared before the internal disciplinary hearing where she was charged with the following misconduct:
(a) Charge 1: Gross Insubordination-Refusal to obey a reasonable and lawful instruction by failing to transfer to and report for duty at Brits Campus as per the settlement agreement entered into between herself, the college, her union, NEHAWU and the Department of Higher Education and Training (DHET).
(b) Charge 2: Compromising the effective administration of the College-You have compromised the effective administration of the college by not reporting for duty at Brits Campus in line with the agreement between yourself, the college, your union and the DHET.
 She was found guilty and subsequently dismissed. The applicant then referred an alleged unfair dismissal dispute to the Council for conciliation and arbitration.
 Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the applicant prayed for reinstatement.
 The procedure that was followed before dismissal is not in dispute.
SURVEY OF EVIDENCE AND ARGUMENTS
RESPONDENT’S HEADS OF ARGUMENT
 The employee was charged with several counts of misconduct which resulted in the employee through her representatives entering into a settlement agreement (item 1 of the employer’s bundle) on the 15 September 2016. The relevant and most important terms of the settlement agreement read as follows: Clause 5 provides “I also accept that I will be transferred with effect from 1 January 2017 to an alternate campus. Whereas Clause 6 read I hereby give up my right to reside in the staff quarters of Mankwe Campus with effect from 1 January 2017.
 The employee is alleged to have refused to obey a lawful instruction (s) whose origin is the provision of the contract of employment between the college and the employee (item 13 of the employer bundle). Clause 8.2 of the above mentioned contract of employment inter alia provides The employees workplace shall be Mankwe Campus not excluding working at other sites of the college when the need arises. The purposive approach interpretation of the above mentioned clause should be understood that Ms. Victoria Mlambo was meant to be based at Mankwe campus, however should the need arise she may be instructed to report at other sites of the college i.e. Rustenburg and Brits.
 However, with that being said, the instruction for the employee to report at an alternate campus should be reasonable and lawful under the circumstance, which leads to the following enquiry, what lead to the instruction for Ms. Mlambo to report at Orbit TVET College Brits campus. Both parties entered into a settlement agreement dated 15 September 2016. The agreement was that Ms Victoria Mlambo will report at Brits Campus.
 Ms. Victoria Mlambo signed the settlement agreement to avoid dismissal as she faced serious misconduct charges. The authenticity and the legal standing of the settlement agreement were never in dispute throughout the proceedings.
 The next enquiry would be whether the instruction was communicated by the employer to the employee to report at Brits campus in January 2017. It was established that there were several letters forwarded to the employee to comply with the instruction. Letter dated 28 October 2016 addressed to Ms. Victoria Mlambo (item 3 of employer bundle) explicitly instructed Mlambo to report at Brits campus in January 2017 and to vacate staff village at Mankwe in December 2016. Letter dated 11 January 2017(item 6 of employer bundle) titled IMPLEMENTATION OF AGREED SANCTIONS AGAINST YOURSELF the instruction that Ms Victoria Mlambo must report at Brits campus was repeated. Again the instruction was repeated in a letter dated 27 January 2017 with heading THIRD AND FINAL ULTIMATUM CONCERNING IMPLEMENTATION OF AGREED SANCTIONS AGAINST YOURSELF. Employer witness, Mr. Mafojane testified that he personally handed this letter to Ms. Mlambo who in turn acknowledged receipt of the letter by signing the distribution list, the evidence of this witness was not disputed at any other material time.
 The employee during the disciplinary hearing gave conflicting and at times confusing reasons as to why she did not comply with the lawful instruction of reporting at Brits campus in January 2017 and to vacate the staff village by mid-December 2016. Ms. Mlambo initially cited personal circumstances but when it was established that the college administration had addressed these challenges, she tried to deviate the blame by saying that the college had failed to take her to Brits campus but when the employer responded by stating that it was not its duty to take the employee to Brits but in fact she had to report as instructed. The employee went further to state explicitly clear that she will not report at Brits campus. The latter being a clear sign of unreasonable defiant of authority.
 With regard to the second charge-compromising the effective administration of the college, the employer witness (Ms. Marais) testified that as a result of Ms. Mlambo’s refusal to report at Brits campus they had to overload the educators time-table at Brits campus to compensate for the non-availability of Ms. Victoria Mlambo, this evidence was not disputed by Ms. Mlambo, hence the employers evidence on charge 2 was not disputed.
 The broad principles governing what constitutes insubordination that would justify a dismissal is set out in Lynx Geosystem (Pty) Ltd v CCMA and Others where it was held that as a general rule, for insubordination to constitute misconduct justifying a dismissal, it is to be shown that the employee deliberately refused to obey a reasonable instruction by the employer. It is to be borne in mind that the employee explicitly stated that she has no intention of reporting at Brits campus without furnishing any reasonable explanation for the defiant stance. This goes on to show that there cannot be a continued employment relationship between the parties under the present circumstances.
 Section 192 (2) of the Labour Relations Act inter alia provides that If the existence of the dismissal is established, the employer must prove that the dismissal is fair. We hereby submit that should the Panellist find that the Chairperson had correctly ruled that the employee was guilty on both charges and ruled for the dismissal of the employee, we submit that same was for a fair decision under the circumstance as the employment relationship has irretrievably broken down.
 Wherefore, the employer prays that the Panellist find that the Chairperson had correctly ruled that the employee was guilty on both charges and that the employee be dismissed as a consequent thereof.
APPLICANT’S HEADS OF ARGUMENT
Mrs Victoria Mlambo
 Mrs Victoria Mlambo submitted that the applicant lodged an appeal and the appeal was not attended to by the respondent. Furthermore, the applicant was not suspended after she was charged with insubordination. This is proof enough that the employment relationship was not broken and was good. The Applicant did receive her salary her salary for the whole year on 2017 and 2018.
 The Applicant reported for duty at Brits Campus as per the agreement reached between the parties. On arrival, she was not welcomed. She was turned away. The Brits Campus Manager told her she was not welcomed there as she had bad conduct and that was not acceptable at Brits Campus. She reported back at Mankwe Campus and reported the incident to the Deputy Principal. Reference is made to the attached letters marked as “A” and “B”. The letters prove that the Applicant reported for duty and was not welcomed and subsequently turned away. The letter in annexure “A” written by the Principal of Brits Campus states very clearly that the Applicant was not welcomed at Brits Campus. The Applicant served the Respondent for twenty years without any record of misconduct.
 A subpoena was issued to the Respondent to avail documents in its possession that would prove that the Applicant did report for duty. The Respondent failed to make these crucial documents available. This shows that the Respondent is hiding something. The sanction of dismissal was harsh, inappropriate and unfair. The decision affected the Applicant psychological and mentally. This also had a very bad financial burden on the Applicant.
 The Respondent failed dismally to comply with the agreement reached by the two parties.
ANALYSIS OF EVIDENCE AND ARGUMENT
 Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.
 I have considered all the evidence and argument presented during this arbitration. In terms of Section 188 of the LRA, “a dismissal that is not automatically unfair, is unfair if the employer fails to prove –
(a) That the reason for dismissal is a fair reason
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirement; and
(b) that the dismissal was effected in accordance with a fair procedure.”
 Section 192 (1) & (2) of the Act stipulates that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, if the existence of the dismissal is established, the employer must prove that the dismissal is fair.
 It is common cause that that the procedure that was followed before dismissal is not in dispute.” I accept that on 15 September 2016 there was an agreement between the parties that the applicant will be transferred from Mankwe TVET Campus to Brits TVET Campus. As a result, the applicant was expected to report for duty at Brits TVET Campus. I accept that the applicant’s employment contract of employment stipulated that “should the need arise she may be instructed to report at other sites of the college i.e. Rustenburg and Brits”. I agree with the respondent’s that the instruction to the applicant that she must report for duty at Orbit TVET College Brits Campus was a lawful and a reasonable instruction. The respondent’s allegation that the applicant stated explicitly clear that he would not report for duty at Brits Campus was not supported by any form of evidence. It is my considered view that it was the respondent’s duty and responsibility to have this allegation of failure to report for duty recorded in one form or the other as proof of defiance and insubordination.
 The respondent failed to submit any form of evidence that would prove that the applicant absented herself without authority on the day she was expected to report for duty. No record of attendance that would have shown who reported for duty and who did not on the day the applicant was expected to report for duty. In the absence of this proof or evidence, it is my finding that the respondent has failed to establish that the applicant failed to report for duty as per the agreement reached between the parties. I do not believe that the employment relationship between the parties has irretrievably broken down. It is my finding that, on a balance of probabilities, the applicant did not commit any act of Gross Insubordination. It is also probable that the applicant did report for duty as per the terms of the settlement agreement entered into between the two parties.
 I am convinced by the applicant’s submission that she did report for duty at Brits Campus and she was turned away. My reasoning is supported by a written letter by the Principal of Brits Campus, (see the attached letter) wherein he stated categorically clear that the applicant was not welcomed at Brits Campus despite the settlement agreement entered into between the applicant and the respondent. I therefore, reject the respondent’s allegation that the applicant failed to report for duty at Brits Campus and by doing so acted insubordinately. The respondent’s allegation of failure to report for duty is unfounded and baseless. The respondent’s allegation is contradicted by a written letter by the Principal of Brits Campus confirming that the applicant was unwelcome at Brits Campus. This statement is supported by letters written by the Principal attached to the applicant’s submissions marked as Annexure “A” and “B”.
 It is therefore probable that the applicant reported for duty and was turned away by the Brits Campus. I have no reason not to believe that the applicant, on reporting for duty, was turned away by the Campus Manager. It is my finding that the applicant was not guilty of Charge 1 and Charge 2 as alleged by the respondent.
 In light of the analysis of material evidence and arguments in totality, the respondent has failed to discharge the onus of proving that the dismissal was substantively fair.
 The dismissal of the applicant is substantively unfair.
 The respondents (Department of Higher Education and Brits TVET Campus) are ordered to reinstate the applicant (Ms Victoria Mlambo) with effect from 26 November 2018 into her former position that she held before dismissal (Lecturer) and also to restore her benefits and service record as if the dismissal had not occurred. The applicant must report for duty in this position on the 23rd of September 2019 at Brits Campus.
 The respondent is further ordered to pay Ms Victoria Mlambo an amount of R199,136.25 (One Hundred and Ninety-Nine Thousand, One Hundred and Thirty-Six Rand Twenty-Five Cents) being the equivalent of 9 months’ salary as back pay for the loss of income resulting from the unfair dismissal.
 The above amount must be paid on or before the 7th of October 2019.
 As provided for by section 143(2) of the LRA, any unpaid amount due in terms of this award will attract interest at the rate prescribed in terms of section 2 of the Prescribed Rate of Interest Act, Act 55 of 1975, as from the date on which it was due.
ELRC - Part-time Commissioner