Case Number: PSES 810-18/19FS
Province: Free State
Applicant: NEHAWU obo Mokhwae O M & 1 Other
Respondent: DEPARTMENT OF HIGHER EDUCATION & TRAINING
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Motheo TVET College, Thaba Nchu Campus
Award Date: 1 November 2019
Arbitrator: TIMOTHY TUMELO BAAS
IN THE EDUCATION LABOUR RELATIONS COUNCIL:
Case No PSES 810-18/19FS
In the Arbitration matter between:
NEHAWU obo Mokhwae O M & 1 Other Applicant
DEPARTMENT OF HIGHER EDUCATION & TRAINING Respondent
Venue of arbitration: Motheo TVET College Thaba Nchu Campus
Parties present: Arbitrator : Mr T.T. Baas
Applicant’s Representative: T P Mofokeng
Applicants: both in attendance
1. Mokhwae O
2. Koloile S
Employer’s Representative: J Mtila
DETAILS OF HEARING AND REPRESENTATION:
 This is the arbitration award in the dispute between NEHAWU obo Mokhwae O.M & 1 Other,(Koloile S), the Applicants and Department of Higher Education and Training-Free State, the Respondent, which took place at Motheo TVET College, Thaba Nchu Campus, on 14 October 2019.
 Mokhwae O.M & Koloile S, the Applicants, were in attendance and were represented by T P Mofokeng, the Union Official whilst Department of Higher Education and Training-Free State, the Respondent, was represented by J Mtila, the Human Resources Personnel.
 The proceedings were digitally recorded and the reference number thereof, are DM450396/DM450429/DM450443/DM450444.
ISSUES TO BE DECIDED:
 I am required to determine whether, the dismissal of Applicants, was procedurally and substantively fair or unfair. If I find dismissal unfair, I should determine the appropriate remedy.
The relief sought by the Applicant:
 The Applicant sought retrospective reinstatement.
BACKGROUND TO THE ISSUES:
 Mokhwae O.M & Koloile S, the Applicants, were respectively employed on 9 March 2009 and on 23 March 2010, both as Post Level 1 Lecturers. Mokhwae, earning the monthly salary of R17 584.17 while Koloile earned R 18 297.25. Both the Applicants, worked on Mondays to Fridays for 7 hours per day.
 On 26 & 29 November 2018, they were dismissed on allegations of ‘gross insubordination and dereliction of duty’ being the alternative charge. Subsequently, they referred dispute to ELRC on 14 January 2019, having argued that their dismissal was procedurally and substantively unfair
SURVEY OF EVIDENCE AND ARGUMENTS:
 Department of Higher Education and Training – Free State, the Respondent, led evidence through the participation of 4 witnesses, who testified under oath namely, Merriam Patela, Joseph Tokelo Chiloane, Martins Kgosikgadi Cidraas & Kobus du Toit ( Mr. Finger made appearance and stated that he decided not testify because he did not have recollection of what happened when he was an employee of the Respondent whilst Mokhwae Obakeng McMaster & Koloile Semano, the Applicants, also testified under oath. I only summarized the evidence relevant to my decision in terms of this award. (Section 138 of the Labour Relations Act, 66 of 1995, amended).
8.2 The Applicant submitted Annexure A1 bundle, paginated: (1 – 224) & Annexure A2 bundle, (1 – 16).
8.3 The Respondent submitted Annexure B bundle, paginated: (1 – 99).
8.4 Parties, further submitted written closing arguments which were considered.
8.5 I have adopted an inquisitorial approach so as to arrive at an informed decision.
THE RESPONDENT’S EVIDENCE AND ARGUMENTS:
 The first witness of the Respondent, Merriam Patela, testified under oath that:
9.1 She was employed in the position of a Senior Education Specialist, in Bloemfontein Campus. At the time when the offenses were committed by the Applicants, she was the Assistant Campus Manager in the Academic Affairs.
9.2 She was approached by the Head of Department Mr. Finger, when he reported to her that he was experiencing problems with the Applicants because students of Building Science N3 Civil, Building Technology N3, reported to him (Finger), on 21 September 2017 that the Applicants refused to teach them.
9.3 The meeting was arranged for the Applicants, on 25 September 2017, with the intention to address the complaint against the Applicants, after students, were left untaught by Koloile while Mokhwae did not report for duty on the day. She testified that Koloile, indicated that he would not participate in the meeting in the absence of his fellow colleague, Mokhwae
9.4 On 26 September, Koloile was not at work while Mokhwae was at work. Mokhwae was then called to a meeting in which the refusal to teach students was going to be addressed. In the same way that Mokhwae did, Koloile refused to proceed in his (Mokhwae absence).
9.5 When the impasse remained unresolved, Mr. du Toit together with Management, decided that he (Mr. du Toit) would teach students who were left untaught, after they lost the week of teaching.
9.6 The allocation of work, which is found in page 84, bundle B, demonstrated subjects, hours and the number of students for which Applicants, were each supposed to teach. The time-table indicated that each Applicant, was allocated 21 hours of teaching per week, during the Trimester 3 in 2017. She argued that the allocation of time-table and the allocation of work in respect of the Lecturers, would normally be rolled out, upon the conclusion of registration of students.
9.7 It was discovered on page 97, bundle B1, of NOTE 1 that the actual contact hours for Post Level 1 Lecturers, should have been between 22.5 hours and 25 hours per week. By refusing to teach allocated subjects, the Applicants did not comply with the actual number of teaching hours per week.
9.8 It was witnessed on page 91 & 99, bundle B that on 12 October 2017, the Applicants, were served with letters by Mr. G.S Finger, in the capacity of the Faculty Head: Engineering Studies, when they, were reminded that they were allocated to teach Building Drawing N3, Building Science N3, Building & Civil Technology 3), after they acknowledged receipt thereof.
Merriam Patela, further testified under the cross-examination that:
9.9 The process of registration of new students could probably had been concluded, on 18 September 2019.
9.10 She did not know why the stamp, indicated that allocation of the subjects, could have been done, on 20 November 2017. (See page 14, bundle A1).
9.11 She was presented the allocation which was prepared for the Applicants, by Mr. Finger, on 18 September 2017. She saw that the stamp used at the Central Office, Human Resource was dated, 20 November 2017.
9.12 She confirmed that it was a requirement for the H.O.D to write minutes, during the allocation of subjects meeting.
M Patela, further conceded under the cross-examination that:
9.13 There was a discrepancy from the inference drawn that the allocation of subjects was concluded on 18 September 2019. She stated she saw that there was no stamp on page 84, bundle B.
 The Second witness of the Respondent, Joseph Tokelo Chiloane, testified under oath that:
10.1 He held the position of a Chief Executive & Accounting Officer. He learned about the matter, when he was appointed as a Presiding Officer. in the internal disciplinary hearing.
10.2 He recommended a sanction of dismissal, after he considered all evidence and material aspect of the allegations which were proffered against the Applicants. He further took into account that the Applicants, refused to take the instruction on various occasion, on 21, 25 & 26 September 2019 and on 4 & 12 October 2019.
10.3 He argued that by refusing to take reasonable instructions, the actions of the Applicants, constituted ‘gross insubordination’ while acted in breach of the contract of their employment The Applicants, were aware that in terms of subordinate legislation, which is contained in the Personnel Administrative Measure document, Post Level 1 Lecturers, were each, expected to teach at least 22 periods per week. He found that Koloile taught only 7 periods while Mokhwae taught 14 periods per week, after they refused to teach other allocated subjects. (See bundle B, Annexure F, page 95-97).
10.4 On 25 September 2017, while at work, Koloile was called to a Management meeting, in order to persuade him to teach unattended students. He refused to sit or to participate, having argued that he did not want proceed, in the absence of his colleague Mokhwae, who on the day, was absent at work.
10.5 On 26 September 2017, similar incident was repeated when Mokhwae was called to a Management meeting when he was persuaded to teach students. He also refused to sit or proceed in the absence of his colleague, Koloile, who was absent at work.
Joseph Tokelo Chiloane, further argued under the cross-examination that:
10.6 When he was appointed to preside on the disciplinary hearing, he was duly the Principal of Tshwane TVET on College. He did not agree with the Applicants that he was not supposed to be appointed by the principal of another College. (See page 2, bundle A1).
10.7 Being appointed as the presiding chair of the disciplinary hearing, such an appointment was not contrary to clause 1.7 of Schedule 1, the Disciplinary Code & Procedures for The Public Service. (See page 5, bundle, A2). If such an appointment was unlawful, he would have not assumed it. He argued that he accepted the invitation to preside because he held the position which was higher than that of the representative of the employer. (See page 9 clause 7.3 (b) of the Disciplinary Code & Procedure, bundle A2.)
10.8 He testified that the Chief Executive Officer or the Principal of any other College held the vested powers to appoint him at his level, to preside on the disciplinary hearing for Post Level 1-3 Lecturers.
 The third witness of the Respondent, Martins Kgosikgadi Cidraas, testified under oath that:
11.1 He held the position of the Head of Department, Skills & Learnership and Engineering. He testified in the disciplinary hearing, after Mr. Finger, called him as a witness. Furthermore, the Applicants, were invited to attend Departmental meetings with him (Finger) and Patela.
11.2 When they met Mr. Koloile on 25 September 2019, Mokhwae was absent at work. Then, Koloile was instructed to teach learners, instead he (Koloile) said that he did not want to discuss anything with them since Mokhwae, was not in attendance.
11.3 On 26 September 2019, Mokhwae was also invited to the same meeting where he was going to be instructed to teach learners who were left untaught. He also said that he was not going to discuss anything in the absence of Koloile.
11.4 In or about 27 September 2019 when both Applicants were at work, they were further instructed to teach. They said that those N3 students should be sent at the sister Campus, Hillside-View. The matter was escalated to the then Acting Campus Manager, Mr. du Toit. It was Mr. du Toit and the former learner of the Institution, who assisted the students up to the writing of examinations.
11.5 On 12 October 2017, Mokhwae was reminded in writing, to attend and teach the students of Building Drawing N3. He had acknowledged receipt thereof on 13 October 2017. (See page 91, bundle, B).
11.6 One of the Applicants’ actual contact teaching time, ranged from 13.5 hours per week although they were required to work between 22.5 up to 25 hours per week. He testified that the allocation of subjects was normally done in consultation with the Applicants, upon the conclusion of a registration of new students.
Martins Kgosikgadi Cidraas further testified under the cross-examination that:
11.7 He did not agree with the Applicant’s submission that there was contradiction in the date of stamp which appeared on the work allocation for Trimester 3 (See page 84, bundle B & page 72 of bundle, A1). He argued that the date in the stamp which was found on page 72, 20 November 2017, was effected by the Central Office of the Human Resource, as the date in which documents were received. Moreover, it was true that there was no stamp in the time-tables, which were allocated to the Applicants. He argued that letters of reminder which were addressed to the Applicants, had no stamp attached when they were presented to them for acknowledgement. (See page 91 & 99, bundle B).
11.8 He was aware that Mokhwae acknowledged receipt of the letter of reminder to teach on 13 October 2017, though the letter was written on 12 October 2017. The stamp, dated 20 November 2017, was the one of Central Office and not the one of Thaba Nchu Campus. He emphasized that the date on the stamp indicated the date of acknowledgment of receipt of the documents.
11.9 Finger, presided on the allocation of the work and that he instructed the Applicants what subjects they should teach.
Martins Kgosikgadi Cidraas, conceded under the cross-examination that:
11.10 He did not remember exact dates in which allocation was done. However, he recalled several occasions, including meetings, in which the Applicants, were instructed to teach. He confirmed that Finger did not provide them with minutes or attendance register, further arguing that there was no allocation meeting ever held. He further testified that he did not recall whether or not, the 3rd meeting was arranged with the Applicants.
 The fourth witness of the Respondent, Kobus du Toit, testified under oath that:
12.1 He held the position the Assistance Campus Manager, Corporate Services. He knew that some of the students remained untaught, when they (students), approached him and informed him that they were sitting in classes without the Lecturer/s.
12.2 Patela, the Campus Manager for Academic & Finger, both approached him with the same problem, having reported to him that the Applicants refused to teach subjects in which students were left untaught. He then offered to assist together with Mr. Motshabi’, for a duration of 4 weeks until the matter would have been probably resolved. When he experienced workload pressure, he did not assist anymore.
12.3 When the time-table was discussed, there would normally be a preliminary planning, which depended on the number of students registered. He argued that a preliminary plan was subject to changes, due to the number of available students.
Kobus do Toit, further testified under the cross-examination that:
12.4 He did not directly participate in the meeting which was scheduled by Finger. He argued that the criterion applied in the appointment of Lecturers, was based on the skills they possessed.
12.5 After the Applicants approached him to raise concerns about the impasse, he then approached Finger. Then, Finger, told him that he would take up the matter to ensure that it was resolved. A day after he spoke with him, Finger informed him that the Applicants still did not want to teach N3 students. He then told him (Finger) that the relevant person to deal with the challenge was Patela hence she was the curriculum Head.
THE APPLICANT’S EVIDENCE AND ARGUMENTS:
 Mokhwae Obakeng McMaster, the first Applicant, testified under oath that:
13.1 He was employed on 3 September 2009, in the position of Post Level 1 Lecturer. The disciplinary hearing was held against him on 4 December 2017, after he was charged on allegations of ‘gross insubordination and dereliction of duty’
13.2 The date in which the notice of disciplinary hearing was issued to him, reflected on the stamp that it was on 20 November 2017, although he saw the charges and the bundle for the first time, in the internal disciplinary hearing on 4 December 2017. (See page 4, 12 & 14 bundle A1).
13.3 There were some discrepancies in the letter of the appointment of the Presiding Officer, J Chiloane. According to him, it was stated that the disciplinary hearing would convene at Thaba Nchu Campus, on 16 November 2019, although the date in the letter of appointment, indicated the date of 20 November 2017, being the date of the appointment of Presiding Officer. Therefore, he argued that on the basis of such discrepancies, the documents were fraudulent. (See page 2, bundle A1).
13.4 On 25 September 2017 he did not report for duty because he was ill. On 26 September 2017, when he reported for duty he was called to a meeting by the Management. He informed them that he would not attend or participate in a meeting because it was called by the Faculty and that, he and Koloile, were denied their rights to be represented by the Official from the Union. It was after he raised concerns about representation that the same meeting, was rescheduled
13.5 On 28 September 2017, he approached du Toit with concerns, regarding the N3 students who were already taken out to the Sister Campus in Bloemfontein. He further asked him whether they would be allowed to invite their Union representative if the meeting was going to proceed. du Toit told them that a meeting was not going to proceed on the day because Patela, was not available. He stated that du Toit said that they would be allocated a new date of a meeting.
13.6 When allocation of subjects was dealt with, the Head of Department, would normally prepare agenda with a pre-liminary allocation being recommended, all Lecturers involved, would each be given the opportunity to discuss allocation, which may change, depending on whether it would be agreed upon or not. He argued that the format used during allocation meeting, was found in bundle A1 pages, 216-224). Therefore, he was not allocated to teach Building Drawing N3 students.
13.7 Allocation meeting should have taken place around the second week of September 2017. However, it was found on page, 12, bundle A1 on stamp that allocation of the Trimester 3 Time-table, was prepared on 20 November 2017. However, according to him, on 20 November 2019, students were already writing examinations.
Mokhwae Obakeng McMaster, further testified under the cross-examination that:
13.8 They were not afforded the fair opportunity to be represented by the Union, in the Management meetings, which were arranged for them.
13.9 During the 1st & 2nd Trimesters, they acknowledged receipt of allocated timetables.
13.10 All, three of them were allocated to teach in the Faculty of Civil & Engineering, namely him (Mokhwae), Koloile and the Mathematics Lecturer.
13.11 He lodged the internal disciplinary appeal, on 20 February 2018. (See page 62, bundle B). He argued that the outcome of the appeal was communicated to him, on 14 November 2018. (See page 64, bundle B).
13.12 Mokhwae Obakeng McMaster, conceded under the cross-examination that:
13.12.1 The disciplinary hearing was convened and concluded on 4 December 2017.
13.12.2 In Trimester 3, he taught some of the subjects which were allocated him, in Trimester 2.
 Koloile Semano, the second Applicant, testified under oath that
14.1 He was employed on 23 March 2010, in the position of a Post Level 1 Lecturer. On 25 September 2017, he was called to a meeting, in the attendance of Patela, Finger & Cidraas, in which N3 classes & its related students, were going to be the topic of discussions. He then informed them that he could not attend a meeting because the matter concerned the N3 students. He further argued that he and Mokhwae would have liked to jointly raise certain concerns in the meeting.
14.2 On 26 September 2017, he did not report for duty due to illness. However, on 27 September 2019, he and Mokhwae approached du Toit, having requested to have a meeting of Faculty. Then du Toit told them that a meeting could not take place since Patela, was not at work.
14.3 He (Koloile) and Mokhwae, sent emails to the H.O.D Finger, in which they wanted to resolve the problem on N3 students. He stated that the charges which were proffered against him in the notice of disciplinary hearing, were not true reflection of what happened because he did not refuse to teach N3 students.
14.4 He first recognized the copy on allocation of the Trimester 3 Time-Table, which he received from Mr. Seate, on 22 September 2017. (See page 70, bundle B). He argued that allocation of subjects should have been handled by Finger, in a meeting where the agenda would be provided.
14.5 He saw the Time-table which is found on page 72, bundle A1, for the first time in the internal disciplinary hearing which took place, on 4 December 2017. He then appealed a sanction of dismissal on 20 February 2018. (See page 58, bundle B). He noted with caution that in the letter addressed to him on 14 November 2018, it was stated that he appealed a decision to dismiss, on 27 September 2017, which for him, meant that the appeal came before the disciplinary hearing, which took place on 4 December 2017.
14.6 Koloile Semano, the Applicant, further testified under cross-examination that:
14.6.1 He did not teach same subjects which Mokhwae taught. He argued that he did not want to meet with Management individually because he and Mokhwae had common concerns, which they would have wanted to raise together.
14.7 Koloile S, conceded under the cross-examination that:
14.7.1 He was fully aware that he bearded the individual contractual obligations with his Employer.
14.7.2 He lodged the internal appeal on 20 February 2018, not on 27 September 2017.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
 In considering the fairness of a dismissal, the LRA states in the Code of Good Practice, Item 4 & 7 of Schedule 8, that in a dismissal dispute the following must be considered:
“Any person who is determining whether a dismissal for misconduct is unfair should consider:-
Item 4: Fair Procedure
(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not have to 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 the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
(11) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement
Item 7: Guidelines in cases of dismissal for misconduct:
(a) Whether or not the Employee contravened a rule or standard regulating conduct in, or of relevance to the workplace, and
(b) If a rule or standard was contravened, whether or not :-
(i) The employer had a rule,
(ii)The employee was aware, or could reasonably be expected to have been aware of the rule or
(iii)It was a valid or reasonable rule or standard;
(iv)The rule or standard has been consistently applied by the Employer.
(v)The sanction applied was in the circumstances, appropriate.
15.1 All the evidence, arguments of the parties and the analysis considered, I found on the balance of probabilities that the dismissal of the Applicants, was procedurally and substantively fair because:-
15.2 Department of Higher Education and Training-Free, the Respondent successfully led the credible, reliable and consistent evidence through the participation of Patela, Cidraas & du Toit, who demonstrated that:
15.3 It came to their attention that N3 students complained that they remained untaught for about a week.
15.4 On 25 & 26 September 2017, the Applicants refused to meaningfully participate in the meeting which was intended to ensure that students were taught. This version was further confirmed by the Applicants, in their testimony that they did not participate in those meetings.
15.5 Patela & Cidraas demonstrated that it was a requirement as per PAM document, that Post level 1 Lecturers, were each supposed to teach between 22.5 to 25 hours of contact with students, per week. Evidence was led to show that they taught less hours than what they were required per week. This evidence was not challenged nor rebutted by the Applicants.
15.6 On 27 September 2017, the Applicants, were instructed to teach, but instead, they refused and said that N3 students should be migrated to the Sister Campus, at Hill-side View.
15.7 On 12 October 2017, the Applicants were further instructed in writing to teach N3 students, yet they still failed to carry the instruction.
 On the other hand, I found the evidence of the Applicants not helpful, after they testified that:
16.1 They did not participate in a meeting because they had common concerns, which they would have liked to address together. It should be remembered that Koloile conceded under the cross-examination that he was aware that each of them had the individual contractual obligations towards the Employer. It is not understandable why concerns were not raised in the meeting, in the presence of Management.
16.2 Both Applicants argued that they saw a bundle of documents for the first time in the internal disciplinary hearing on 4 December 2017. However, both had acknowledged receipt of letters in respect of which, they were reminded to teach students on 12 October 2017. (See pages 91 & 99, bundle B). The evidence of the Applicants was therefore, unreliable, inconsistent and full of contradictions. For instance, In his testimony, as found in par 14.4, Koloile stated that Mr. Seate presented a Trimester 3, allocation Time-table, on 22 September 2017, although both argued that they saw the documents for the first time in the disciplinary hearing on 4 December 2017.
16.3 The Applicants, further focused their defense on the premise that the outcome of the appeal was communicated before the disciplinary hearing, although Mokhwae conceded under cross-examination that the outcome of appeal, was conveyed to them on 14 November 2018.
16.4 All the evidence, arguments of parties as well as the analysis above, taken into consideration, I found on the balance of probabilities that the evidence of the Respondent, was materially more credible, reliable and consistent than that of the Applicants. In the circumstances, I found that dismissal of the Applicants, was procedurally and substantively fair. I therefore, determine as follows:
 The dismissal of Mokhwae O.M & Koloile S, the Applicants, was procedurally and substantively fair.
17.1 The sanction of dismissal of the Applicants, was fair and appropriate.
Commissioner’s Signature: ……… TIMOTHY TUMELO BAAS
Signed in Bloemfontein on 01 November 2019, under the auspices of the ELRC.