PSES 39-19/20 KZN
PSES 39-19/20 KZN
Award Date:
2 February 2020
Case Number: PSES 39-19/20 KZN
Province: KwaZulu-Natal
Applicant: NATU obo NYAWO
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education, Administration Building, King Dinizulu Highway, Ulundi.
Award Date: 2 February 2020
Arbitrator: P. JAIRAJH
CASE NO.: PSES 39-19/20 KZN
IN THE MATTER BETWEEN: -
NATU obo NYAWO APPLICANT
AND
DEPARTMENT OF EDUCATION - KZN RESPONDENT
ARBITRATOR : P. JAIRAJH
DATE OF AWARD : 02 February 2020
Applicant’s representative : MS SS. SHUSHA (NATU)
Telephone : (031) 332 1342
Fax : (031) 332 1343
Email :
Respondent’s representative : MS. J. DUMISA
Telephone : (033) 846 5173
Fax : (033) 846 5462
Email :
DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for arbitration on 21 June 2019, 2 August 2019, 11 and 18 October 2019 and 14 November 2019 at the Department of Education, Administration Building, King Dinizulu Highway, Ulundi.
[2] Ms S.S. Shusha from NATU represented the applicant (employee) and the respondent (employer) on the 21 June 2019 was represented by Ms N.G. Dubazane and thereafter by Ms J. Dumisa.
[3] The parties, at the conclusion of proceedings, elected to submit written closing arguments and final closing arguments were received on the 3 December 2019.
BACKGROUND TO THE DISPUTE
[4] The Applicant was employed as an educator and stationed at Pongola Intermediate School. He was charged by the Department in 2017 for having assisted learners with a memorandum while they wrote their 2016 final exams in Agricultural Science.
[5] The disciplinary enquiry was scheduled for the 6 December 2017, the applicant was present and represented. They made an application for postponement on the basis that they were not ready to proceed, which postponement was granted to a mutually agreed upon date.
[6] On the 29 January 2018 the applicant did not present himself but his representative appeared on his behalf and submitted a medical certificate however the Presiding Officer proceeded with the inquiry in his absentia on the basis that he did not comply with the Notice of Disciplinary Enquiry.
[7] Subsequent to the hearing, he was found guilty by the presiding officer. He appealed the finding and sanction however his appeal was dismissed by the MEC.
ISSUE TO BE DECIDED
[8] I am required to determine whether the dismissal of the applicant was substantively and procedurally fair. In the event that I find the dismissal to be unfair, I must decide upon an appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT
PRELIMINARY ISSUE
[9] The respondent submitted that she had just been appointed to deal with this matter and wanted to exchange and use the scripts of the 2016 Grade 11 Agricultural Science exam paper as evidence. She further submitted that she would not be in a position to lead her witnesses without these scripts.
[10] On enquiring about her witnesses, she stated that she had one witness present who was ready to testify for the day. I determined that in the interim the matter proceed with this witness and thereafter she sorts out her issue with the scripts.
RESPONDENT’S CASE
KHEIZER BHEKWAKHE NXUMALO
The salient aspects of Mr Nxumalo’s evidence are recorded below.
[11] He is the principal of Pongola Intermediate School and discovered the irregularity concerning the applicant when he heard some learners commenting about what had happened at school. These learners were trying to boycott exams after they discovered that the applicant had assisted learners in the Agricultural Science exam.
[12] The learners told him that the applicant while invigilating, as invigilator he was mobile in the class, after looking at what they were writing, told them that what they were writing was wrong and he knew the memorandum of this paper. He told them to throw away all the papers that they had written on and start afresh. He gave them new papers, scrolled through his cell phone, gave them the answers and when other teachers were passing on the veranda he used to tell them to stop.
[13] This particular exam venue was also occupied by learners from other grades and the applicant also told these learners to go and collect notes from their bags to assist them to write the essays questions.
[14] When he heard these rumors, he immediately confronted the HOD’s who confirmed that this incident occurred in 2016, when the Grade 11’s were writing the final Agricultural Science exam, and he interviewed the learners.
[15] Ms Mkhwebane told him that she was confronted by Mr Nhleko who was the subject teacher. He was very angry when he approached her, asking why the applicant did that because the applicant and he were very close to each other. Mr Nhleko, Mr Mthiyane, and Mr S.T. Dlamini were present when Ms Mkhwebane called the applicant and asked him about what had transpired. He confessed to them that he had done it and apologized for what he had done. Ms Mkhwebane told him that they had scheduled another time for the learners to rewrite that paper.
[16] Ms Mkhwebane assumed that Mr Dlamini would take the matter further because he had joined them when they were discussing the issue. Mr Dlamini told him that he found Ms Mkhwebane and Mr Nhleko discussing the matter but they had never reported it to him officially. Further, the applicant was apologizing for what he had done so he assumed that the matter would not be so serious.
[17] He had seen the scripts, which the learners had copied. He called the applicant to verify the truthfulness of this allegation. The applicant confessed that he did it and had apologized to the subject teacher and to him for what he had done. He told the applicant that he did not oppose his apology, but for consistency he had to report the matter so that in future when things happen in school, teachers would not interpret him as being biased.
Under cross-examination he testified that:
[18] It was the beginning of 2017 when he heard the learners talking about the incident.
[19] Ms Mkhwebane had explained to him that when the agricultural science paper was written the applicant had invigilated it and he assisted learners to answer the paper.
[20] She further informed him that Mr Nkhelo had told her that when he was marking the scripts he saw something, which was unfamiliar regarding the performance of his learners. That triggered Mr Nkhelo to confront the learners as to how they had managed to answer all those questions, not all the learners, but only those in that particular class, who were invigilated by the applicant and who had got almost everything correct, that is when they told him that the applicant had assisted them. Then he confronted the applicant and reported to Ms Mkhwebane what had happened in his subject. Thereafter Ms Mkhwebane and Mr Mthiyane who are both HOD’s instructed Mr Nhleko to reset a paper for rewrite, which rewrite took place in 2016.
[21] It was put to him that he was lying and had crafted these very serious allegations as he was unhappy with the fact that the applicant had joined the opposition union and he had intimidated the applicant and other educators. He disagreed and stated that the applicant is not the only teacher belonging to another union and further Mr Dlamini belongs to the same union as the applicant.
[22] When it was put to him that the applicant did not make a confession, he stated that the applicant did make a confession and further Mr Nhleko had informed him that the applicant had approached him and told him that he must not be part of this arbitration as he was no longer in the department therefore he will just nullify whatever is being said against him.
[23] He testified that he did not have any grudges against the applicant or Mr Nhleko and he could not influence any person to do anything against the applicant but the applicant could influence Mr Nhleko because this case was against him.
[24] He could not recall exactly when he notified the Department but he wrote a letter and after sometime received a request from the District to write another letter explaining exactly what had transpired. He then wrote the second letter but could not recall the date when this letter was written.
BUSISIWE SUSAN MKHWEBANE
The salient aspects of Ms Mkhwebane’s evidence are recorded below.
[25] She is an HOD for Languages at Pongola Intermediate School and regarded the applicant as a son. The subject teacher, Mr Nhleko reported this issue to her in her office while she was with Mr Mthiyane, who was the Science HOD however he is no longer at their school.
[26] Mr Nhleko informed her that the applicant had assisted him in downloading his subject paper. He reported that learners had written an exam in his subject paper and the applicant had downloaded the paper onto his phone and gave the answers to the learners. He further reported that the learners who did not have access to the answers were fighting outside so he had asked her to intervene.
[27] When she called the applicant to her office, Mr Dlamini, the Deputy Principal was also present. She spoke to them as a mother and told the applicant that what he did was wrong. They were trying to solve the issue and the applicant admitted that he did it and they thought the problem had been solved. She did not know how this matter reached the principal.
[28] She saw the scripts that were written by this class and her observation was that learners could not get to that level; it was clear that a teacher had assisted them. She did not know what happened to these scripts but Mr Mthiyane who was the HOD for science might know what happened to it.
[29] She interviewed the learners who were invigilated by the applicant and asked them about the incident and they confirmed that it had occurred. To address this issue, she spoke to Mr Nhleko and told him to download another paper so that the learners would start afresh and write another paper.
[30] The principal approached her after he had heard about the matter.
Under cross-examination she testified that:
[31] She had a good working relationship with the applicant and their relationship even now is still good.
[32] When Mr Nhleko came to report to her his condition was not good, she spoke to him and was able to calm him down. The meeting between her, Mr Nhleko and the applicant took place on the day of the incident. The applicant admitted that he gave assistance to the learners.
[33] The applicant had also assisted her in downloading papers. She downloads Zulu papers and agreed that anyone could have access to sites from where documents could be downloaded.
[34] When she interviewed the learners and asked them what had happened, they informed her that the applicant was invigilating, walking in between the desks, and he observed that they were writing wrong answers. He told them that they must start afresh, take new scripts, and destroy the ones that they were using. They then started afresh and he gave them the answers only for section A.
SAMUEL TKABONINI DLAMINI
The salient aspects of Mr Dlamini’s evidence are recorded below.
[35] He is the Deputy Principal at Pongola Intermediate School. When he entered the office, he observed that Mr Nhleko was complaining and angry. He came to know about this matter through Mr Mthiyane, who told him that Mr Nhleko was complaining that the applicant did something to his papers.
[36] After two weeks, he was called by the principal who asked him why he did not report about the copying allegations. He told the principal that the person the matter had been reported to did not come and report it to him because they knew he was no longer the chief invigilator.
[37] When asked that if someone says that the principal is fabricating this allegation of assisting learners because he was fighting with the applicant as he was not a SADTU member, he stated that previously there was a misunderstanding between the principal and the members of NATU but that cannot be linked to this matter.
Under cross-examination he testified that:
[38] Mr Mthiyane did not report the incident to him, he found them discussing the matter in the office but he was not actively involved in these discussions.
[39] It was the beginning of 2017 when the principal called him and according to him when the principal took the decision to report the matter, he was following the policy.
MUZTHINI CHURCHILL SIBANYONI
The salient aspects of Mr Sibanyoni’s evidence are recorded below.
[40] He is currently the Deputy Director Human Resource Management: Zululand District. He was the presiding officer at the applicant’s disciplinary enquiry and at that stage, he held the position of Senior Specialist Employee Relations.
[41] At the hearing in December 2016, the applicant was represented by Mr Ngomane from NATU and they indicated that they were not ready and requested a postponement. He made a ruling allowing the postponement but further indicated that he was not going to allow any further adjournments based on unpreparedness.
[42] Further, the matter was debated and in terms of the notice that the applicant had signed, he had checked if the applicant was in full understanding of its content and the applicant confirmed that he understood the notice, which clearly stated that if he requires a postponement on the basis of being sick, he must favour the tribunal with a medical certificate accompanied by an affidavit from an examining doctor who would indicate if the ailment was preventing the applicant from attending the proceedings.
[43] In January, Mr Ngomane only brought a medical certificate, which was not accompanied by an affidavit from the examining doctor. The medical certificate was issued on the 27/01/2018 and only indicated that the applicant was suffering from medical condition, which was not specified. In terms of the Notice and Resolution 1 of 2003, he ruled that the matter proceeds.
[44] He referred to the medical note and stated that the writer was trying to clarify the actual sickness on the medical certificate. This document was dated 19 June 2019 was not an affidavit and further the case had long been concluded.
Under cross-examination he testified that:
[45] The applicant was not suspended. They have a backlog of cases and endeavor to finalize cases within three months.
[46] He testified that he was guided by procedures and the applicant was supposed to have requested for an affidavit from the doctor. He was also guided by Resolution 1 of 2003, which states that if the Presiding Officer finds the reasons not substantiated enough, he may continue with the case in the employee’s absence.
[47] The word “apparently” on the sick note certificate also cast doubt that the medical practitioner did the examination and came to a conclusion. If the medical practitioner said that the employee was suffering from a medical condition and apparently had been deemed ill from this date, it actually means that all that the doctor relied on was what he was told hence the reason why there was no affidavit.
[48] He had a feeling that the applicant was deliberately delaying the case because in December 2016 he came just to indicate that he was not prepared so to be fair he allowed the applicant and his representative to go and prepare for almost a month. In January 2017, they discovered that the day before the applicant had gone to the doctor and came up with a medical certificate, which showed that the applicant was deliberately delaying the sitting.
[49] As the presiding officer he analyzed the submissions for the request for postponement and came to a conclusion and with the powers vested in him determined that the case proceed, which was a correct decision.
[50] The employer representative indicated that the non-signing of the notice was actually part of delaying tactics from the applicant.
Under re-examination he testified that:
[51] The applicant did not sign the notice of enquiry and the principal made a remark that the applicant indicated that he would acknowledge receipt the following day however he did not receive an acknowledgement.
APPLICANT’S CASE
THOKOZANI TOKYO NYAWO
The salient aspects of Mr Nyawo’s evidence are recorded below.
[52] He invigilated the 2016 agricultural sciences final exams. Three different subjects were being written at the venue. He was just monitoring the learners and was surprised about the charge.
[53] The relationship between him and the principal was very good but in 2017, he and about half of the teachers in the school changed unions, from SADTU to NATU. After they attended a NATU opening ceremony, the principal called all NATU members to his office and a ward councillor came in and shouted at them. The ward councillor told them that he was going to call Minister Nkonyeni, who was his friend, to dismiss all NATU members as well as mobilize the community against them. The following day they did not go to school but went to the secretary as they feared for their lives and while there they called the principal and the ward counselor. When the principal arrived he discussed the matter privately with the teachers and apologized, then they went back to school.
[54] After about 3 days, there was a staff meeting from 2pm to 7pm and the principal never gave NATU members a chance to speak. He only gave SADTU members, Ms Mkhwebane, Mr Shabangu and Mr Yende a chance to speak, who criticized them by saying that they are filth and NATU is filthy, then they ended up leaving this meeting before it finished.
[55] After a few days the principal called the NATU members one by one and the principal told him, “I’m building your case my dear”, and until today communication between the principal and other NATU members is not good. About 7 members had left that school when they changed from SADTU to NATU.
[56] During the first term, January to March they changed from SADTU to NATU and in the second term these conflicts started.
[57] When asked if he was saying that the principal was lying when he said that there was no friction between himself and either him and other NATU members, he stated that he could not say that the principal was lying, as an old person, he would say that he was not telling the truth.
[58] When told that the principal in his testimony had alleged that he confessed to having assisted learners as per the allegations in the charge sheet, he stated that he told the principal that he did not know about the allegations and was surprised by it.
[59] He had a good working relationship with Mr Nhleko and emphasized that at school he was the only person who was able to download documents for them but stated that anyone could use these sites for downloading past papers.
[60] When told that Ms Mkhwebane had testified that she had questioned him in Mr Nhleko’s presence and he had confessed to having assisted the learners, he stated that Ms Mkhwebane called him and talked to them because Mr Nhleko had suspicions but he denied admitting or confessing anything to her.
[61] He did not attend the hearing in January 2018 because he became sick at home and was taken to the doctor. By sending the sick note he was proving that he was not running away but just sick.
Under cross-examination he testified that:
[62] He affirmed when asked if he was implying that the principal would not have reported him if he was a SADTU member. On further questioning he was asked if he was implying that in fact he committed this offence and the principal was supposed to cover for him, he stated that if he was in SADTU then the principal was going to do what he was supposed to do.
[63] When it was put to him that the circuit manager who is a seasoned circuit manager explained what it means to acknowledge receipt of the enquiry and asked him to sign acknowledgment and he did not, he stated that because there was a party at school, he was just surprised about what was happening and had requested to go and consult about what he should do.
[64] He denied that his refusal to take the notice was a sign of insubordination and an attempt to avoid the disciplinary enquiry.
[65] He confirmed that he understood the clause in the notice pertaining to a medical certificate and affidavit by the Doctor. He did not attach the affidavit from the doctor because he had submitted a medical certificate as he thought that was what they wanted.
[66] When asked if he had put the version about the ward councillor threatening to call the MEC to dismiss all NATU members and mobilizing the community to the principal, he stated that he did not because he was not given a chance.
[67] It was put to him that he was represented and the version that the principal had apologized to them was not canvassed with the principal to confirm or deny, and he stated that he did not get a chance.
[68] When it was put to him that his testimony regarding Ms Mkhwebane and 2 other SADTU members shouting and calling the NATU members weird names was never canvassed with her, he stated that he did not get a chance. He simply stated he remembered when asked if he recalled that the principal and deputy principal were there and they were never reminded of this school meeting.
[69] When told that Ms Mkhwebane referred to him as her son so how could she also call him names and insult him just because he joined another union, he stated that he thought they became angry when they changed unions.
[70] When asked why the principal only chose him to be charged out of all NATU members, he stated because the principal said he will get them one by one.
[71] When asked why would Ms Mkhwebane come here and lie about this meeting and the fact that he admitted to the allegation, he stated that he did not know.
[72] He denied admitting to the principal and stated that they spoke about the allegation with Ms Mkhwebane and he told them that he did not know about it.
[73] He denied having his cell phone with him during the invigilation. It was put to him that the version regarding the cell phone was coming from the evidence presented by the respondent’s witnesses, and when he detailed his task and everything that he did on that particular day as invigilator why did he forget the material aspect of the cell phone, because the cell phone was what actually linked him to the assisting of the learners. He stated that he did not know how to respond to that but mentioned the things that he knew he did.
[74] When asked if he did not think it was important to mention the issue of the cell phone because the principal indicated that the memorandum was on his cell phone, he stated that he forgot to mention it.
SPHESIHLE ANELE ZULU
The salient aspects of Ms Zulu’s evidence are recorded below.
[75] She attended Pongola Intermediate School and completed grade 12 in 2018. She heard about the incident in November 2018 when she was in grade 12.
[76] She wrote this particular exam in 2016. While they were writing the applicant moved around the rows checking. She denied that the applicant helped them with answers.
[77] Mr Nhleko told them to look at past year papers and suggested that if they wanted to pass they needed to download papers to see the format and answer the questions.
[78] She agreed to be a witness for the applicant because she was a learner in that particular class. She further stated that Nothando Simelane, her neighbor was called to be a witness at school and after testifying came crying and told her that they called her to testify and say that the applicant made them copy agricultural science exam paper and she mentioned her name, thus the reason why she came here was to testify that the applicant never made them copy, she never copied and to clear her name.
Under cross-examination she testified that:
[79] When it was put to her that Mr Nhleko was the one actually responsible for setting this paper for them and if he knew that he had given them this question paper, why would he be suspicious and complain if they simply passed section A, she stated that she did not know.
[80] They prepared for section A in the morning on the cell phone of a learner who had downloaded the paper and memorandum; they had a look at a paper and decided how to answer it.
[81] Those that were to rewrite was called by their names and was not given a reason as to why they were writing the same paper twice. The other class was not made to rewrite. She denied that the paper they rewrote was different.
[82] Nothando Simelane was taken by Ms Mkhwebane who told her that they were going somewhere and then they bought her KFC. When they were about to arrive at the hearing they told her that they want her to be their witness to testify and say that the applicant made her copy when she was writing the agricultural science paper. She said that she was shocked and scared, but they told her that she must say this and that, such that Nothando’s mother became angry and complained to that teacher that she did not like it when they took her child to go and testify without her permission.
[83] She opted not to answer when it was put to her that this was a very interesting story as Ms Mkhwebane was here and no such version was put to her that she was manufacturing everything that she said and secondly that she coerced a certain learner by the name of Nothando Simelane to lie and testify without her parent’s permission.
PATRICK PHIKANI NGOMANI
The salient aspects of Mr Ngomani’s evidence are recorded below.
[84] He is an educator and is a member of the Executive Committee of NATU. He represented the applicant at the disciplinary enquiry. On that day they received the employer’s bundle hence they were not prepared for the hearing and requested a postponement, which was granted.
[85] He presented the applicant’s medical certificate on the 27 January 2018 but the presiding officer refused to postpone the matter because he stated that he cannot postpone the case for the second time.
[86] He was given an opportunity to cross-examine witnesses.
Under cross-examination he testified that:
[87] It was put to him that if the employee is not present during the disciplinary enquiry, the presiding officer will allow the employer representative to read the charges and then the presiding officer will enter the plea of not guilty and he stated that this did not happen.
[88] When asked if he produced the affidavit he confirmed that he did not comply with the Notice of Disciplinary Hearing.
[89] It was put to him that Mr Sibanyoni had testified that in the first sitting he gave them a chance to go and prepare because they were not ready, he stated that he was not ready because he had no documentation. He was informed that the applicant had been charged and there will be a hearing. He received the charges the same day from the presiding officer.
[90] It was put to him that it was his fault as union for failing to advise his member that it is incumbent upon him to get the documents and he stated that whoever was serving him with the Notice did not go back to serve him with the notice.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the evidence and arguments of the parties as well as the documentary evidence submitted.
[91] The applicant contends that he was unfairly dismissed by the respondent and seeks the retrospective re-instatement and compensation.
[92] The respondent opposed the application and prays for the dismissal of the application and for the confirmation of the sanction by the presiding officer.
[93] During or about 27 November 2017 the Respondent served a notice of disciplinary hearing on the applicant. The charge in the notice referred to the following allegation: -
Charge:
In 2016 at or near Pongola Intermediate School, you committed a misconduct by assisting learners with a memorandum while they were to write Agricultural Sciences final exam. You thereby contravened Section 17(1)(a) and Section 18(f) of the Act.
[94] There was no dispute about the existence of a dismissal. According to Section 192 read with Section 188 of the Labour Relations Act (the Act), the onus was, therefore, on the Employer to justify the dismissal on both substantive and procedural grounds.
PROCEDURAL FAIRNESS
[95] In terms of the Code of Good Practice in respect of Fair Procedure, normally the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need 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. If the employee is dismissed, the employee should be given the reason for the dismissal and reminded of any rights to refer the matter to a council with jurisdiction.
[96] The applicant challenged procedural fairness of the dismissal in that there was a delay and the hearing on the second sitting was conducted in his absence despite the fact that he had presented a medical certificate via his representative.
[97] It was not in dispute that this incident took place in 2016 during the writing of the final exams. The principal testified that it was in the beginning of 2017 when he heard the rumours and took it upon himself to investigate these rumours. He confronted the HOD’s, had a meeting with the educators and interviewed the learners. He had subsequently reported the incident to the department but was asked to write another letter with further particulars. The disciplinary hearing was set down on the 6 December 2017 and thereafter postponed to 29 January 2018. I find that there is a reasonable explanation with regards to when the incident came to the knowledge of the principal, his investigation thereof, his reporting of the incident to the department and their request for further particulars.
[98] It remained undisputed that the presiding officer had fully explained to the applicant the paragraph in the notice pertaining to absence due to a medical condition, which medical certificate must be accompanied by an affidavit from the examining medical practitioner and during cross-examination the applicant confirmed he understood the notice. The medical certificate simply states that the applicant was suffering from a “medical condition” and that he was “apparently ill as informed by the patient”.
[99] The onus to provide the affidavit from the examining medical practitioner rests with the applicant. The applicant failed to meet the requirements set out in the notice. He provided a note from a medical centre attempting an explanation of his illness, which is dated 19 June 2019, more than 2 years post his dismissal, which clearly shows a lack of urgency in dealing with his own matter. I find that the respondent was justified in proceeding in his absence.
SUBSTANTIVE FAIRNESS
[100] Item 7 of Schedule 8 in the Code of Good Practice: Dismissal sets out guidelines for Employers to follow when dismissing Employees for misconduct.
[101] The Code provides that in determining whether a dismissal for misconduct is fair or not, the following should be considered:
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the work-place; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard
(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard
(iii) the rule or standard has been consistently applied by the employer
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
[102] In Sweeney v Transcash [2000] 6 BALR 712 (CCMA) it was held that arbitration hearings constitutes a rehearing de novo on the merits. The award must accordingly be based on evidence led at the arbitration, not on the record of the disciplinary hearing. The decision to dismiss the applicant was taken after the disciplinary hearing.
[103] In De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others (JA68/99) [2000] ZALAC 10 (3 March 2000) the court held at para “[48] It is important to remember that once the facts are established, it is, ultimately, a matter of opinion whether a dismissal is fair or not.” [50] The onus is thus on the employer to prove the facts upon which it relies for the dismissal. If the facts upon which the employer relies are not proven at the end of the arbitration proceedings, then cadit quaestio, the employer has failed to prove the fairness of the dismissal. On the other hand, if the employer does prove the facts upon which it relies, then the arbitrator must make a determination as to whether or not the dismissal is unfair.”
[104] The Respondent’s version was presented via the testimony of four witnesses. The first being the principal who testified to the circumstances of how he heard about the rumours, his investigation thereon and the reporting of the allegation to the department. He testified that Ms Mkhwebane had told him that Mr Nhleko was angry and upset that the applicant had assisted learners in the 2016 final exam agricultural science paper. Further that the applicant had admitted his wrongdoing and had apologized to her. This was corroborated by Ms Mkhwebane who testified that she considered the applicant as her son and he had admitted his wrongdoing and had apologized to her.
[105] In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the Labour Appeal Court noted that “A failure to cross-examine may, in general, imply an acceptance of the witness’s testimony.”
[106] The applicant made accusations that the principal had targeted him because he changed his union membership from SADTU to NATU. Further, that Ms Mkhwebane at a school meeting had criticized and insulted them because they were NATU members.
[107] Ms Zulu did not come across as a satisfactory witness. I find it inconceivable that she only heard about this incident in November 2018, yet she testified that the other class was not made to rewrite and those who were to rewrite were called by their names. Further, her versions regarding their rewriting of the same paper and Nothando Simelane were never put to the respondents’ witnesses.
[108] Even Mr Ngomani’s versions were never canvassed with the presiding officer.
[109] Significantly, the applicant failed to put his various versions to the respondent’s witnesses while they were testifying.
[110] All the respondent’s witnesses came across as honest and did not hesitate when testifying. They were clear and candid in their responses. Further, none had any grudges against the applicant. The principal and Ms Mkhwebane were steadfast in stating that the applicant admitted the allegation and had apologized to them. These witnesses also corroborated the other witness’s versions.
[111] I find it highly improbable for the applicant to simply forget to put these versions to the respondent’s witnesses especially since he was represented.
[112] The applicant’s defence was a purported claim that the principal disliked his union membership change to NATU and this defence was never corroborated. Even Mr Dlamini who was a SADTU member testified that this incident was not related to any union issues and the principal took action as required by policy.
[113] The applicant further failed to challenge the principal’s testimony that Mr Nhleko did not attend this arbitration hearing because he was influenced by the applicant as this case was against him.
[114] I have noted the applicant’s answer under cross-examination that the principal was going to do what he was supposed to do if he was a SADTU member, which in essence meant that he was indirectly admitting to the allegation.
[115] I find the applicant’s defence unreliable, uncorroborated, and not probable.
[116] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC), the court at held at para [78] “In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal.”
[117] The respondent bore the onus of proving the allegations against the applicant. I am satisfied that the evidence of the respondent is more probable than that of the applicant and I accordingly find the dismissal to have been substantively fair.
[118] I determine that the sanction imposed by the respondent to be appropriate and find no reason to interfere with the sanction of dismissal.
AWARD
[119] The dismissal of the applicant, Thokozani Tokyo Nyawo, was substantively and procedurally fair.
[120] There is no order as to costs.
ELRC Commissioner: P. Jairajh
Province: KwaZulu-Natal
Applicant: NATU obo NYAWO
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Misconduct
Venue: Department of Education, Administration Building, King Dinizulu Highway, Ulundi.
Award Date: 2 February 2020
Arbitrator: P. JAIRAJH
CASE NO.: PSES 39-19/20 KZN
IN THE MATTER BETWEEN: -
NATU obo NYAWO APPLICANT
AND
DEPARTMENT OF EDUCATION - KZN RESPONDENT
ARBITRATOR : P. JAIRAJH
DATE OF AWARD : 02 February 2020
Applicant’s representative : MS SS. SHUSHA (NATU)
Telephone : (031) 332 1342
Fax : (031) 332 1343
Email :
Respondent’s representative : MS. J. DUMISA
Telephone : (033) 846 5173
Fax : (033) 846 5462
Email :
DETAILS OF HEARING AND REPRESENTATION
[1] This matter was scheduled for arbitration on 21 June 2019, 2 August 2019, 11 and 18 October 2019 and 14 November 2019 at the Department of Education, Administration Building, King Dinizulu Highway, Ulundi.
[2] Ms S.S. Shusha from NATU represented the applicant (employee) and the respondent (employer) on the 21 June 2019 was represented by Ms N.G. Dubazane and thereafter by Ms J. Dumisa.
[3] The parties, at the conclusion of proceedings, elected to submit written closing arguments and final closing arguments were received on the 3 December 2019.
BACKGROUND TO THE DISPUTE
[4] The Applicant was employed as an educator and stationed at Pongola Intermediate School. He was charged by the Department in 2017 for having assisted learners with a memorandum while they wrote their 2016 final exams in Agricultural Science.
[5] The disciplinary enquiry was scheduled for the 6 December 2017, the applicant was present and represented. They made an application for postponement on the basis that they were not ready to proceed, which postponement was granted to a mutually agreed upon date.
[6] On the 29 January 2018 the applicant did not present himself but his representative appeared on his behalf and submitted a medical certificate however the Presiding Officer proceeded with the inquiry in his absentia on the basis that he did not comply with the Notice of Disciplinary Enquiry.
[7] Subsequent to the hearing, he was found guilty by the presiding officer. He appealed the finding and sanction however his appeal was dismissed by the MEC.
ISSUE TO BE DECIDED
[8] I am required to determine whether the dismissal of the applicant was substantively and procedurally fair. In the event that I find the dismissal to be unfair, I must decide upon an appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT
PRELIMINARY ISSUE
[9] The respondent submitted that she had just been appointed to deal with this matter and wanted to exchange and use the scripts of the 2016 Grade 11 Agricultural Science exam paper as evidence. She further submitted that she would not be in a position to lead her witnesses without these scripts.
[10] On enquiring about her witnesses, she stated that she had one witness present who was ready to testify for the day. I determined that in the interim the matter proceed with this witness and thereafter she sorts out her issue with the scripts.
RESPONDENT’S CASE
KHEIZER BHEKWAKHE NXUMALO
The salient aspects of Mr Nxumalo’s evidence are recorded below.
[11] He is the principal of Pongola Intermediate School and discovered the irregularity concerning the applicant when he heard some learners commenting about what had happened at school. These learners were trying to boycott exams after they discovered that the applicant had assisted learners in the Agricultural Science exam.
[12] The learners told him that the applicant while invigilating, as invigilator he was mobile in the class, after looking at what they were writing, told them that what they were writing was wrong and he knew the memorandum of this paper. He told them to throw away all the papers that they had written on and start afresh. He gave them new papers, scrolled through his cell phone, gave them the answers and when other teachers were passing on the veranda he used to tell them to stop.
[13] This particular exam venue was also occupied by learners from other grades and the applicant also told these learners to go and collect notes from their bags to assist them to write the essays questions.
[14] When he heard these rumors, he immediately confronted the HOD’s who confirmed that this incident occurred in 2016, when the Grade 11’s were writing the final Agricultural Science exam, and he interviewed the learners.
[15] Ms Mkhwebane told him that she was confronted by Mr Nhleko who was the subject teacher. He was very angry when he approached her, asking why the applicant did that because the applicant and he were very close to each other. Mr Nhleko, Mr Mthiyane, and Mr S.T. Dlamini were present when Ms Mkhwebane called the applicant and asked him about what had transpired. He confessed to them that he had done it and apologized for what he had done. Ms Mkhwebane told him that they had scheduled another time for the learners to rewrite that paper.
[16] Ms Mkhwebane assumed that Mr Dlamini would take the matter further because he had joined them when they were discussing the issue. Mr Dlamini told him that he found Ms Mkhwebane and Mr Nhleko discussing the matter but they had never reported it to him officially. Further, the applicant was apologizing for what he had done so he assumed that the matter would not be so serious.
[17] He had seen the scripts, which the learners had copied. He called the applicant to verify the truthfulness of this allegation. The applicant confessed that he did it and had apologized to the subject teacher and to him for what he had done. He told the applicant that he did not oppose his apology, but for consistency he had to report the matter so that in future when things happen in school, teachers would not interpret him as being biased.
Under cross-examination he testified that:
[18] It was the beginning of 2017 when he heard the learners talking about the incident.
[19] Ms Mkhwebane had explained to him that when the agricultural science paper was written the applicant had invigilated it and he assisted learners to answer the paper.
[20] She further informed him that Mr Nkhelo had told her that when he was marking the scripts he saw something, which was unfamiliar regarding the performance of his learners. That triggered Mr Nkhelo to confront the learners as to how they had managed to answer all those questions, not all the learners, but only those in that particular class, who were invigilated by the applicant and who had got almost everything correct, that is when they told him that the applicant had assisted them. Then he confronted the applicant and reported to Ms Mkhwebane what had happened in his subject. Thereafter Ms Mkhwebane and Mr Mthiyane who are both HOD’s instructed Mr Nhleko to reset a paper for rewrite, which rewrite took place in 2016.
[21] It was put to him that he was lying and had crafted these very serious allegations as he was unhappy with the fact that the applicant had joined the opposition union and he had intimidated the applicant and other educators. He disagreed and stated that the applicant is not the only teacher belonging to another union and further Mr Dlamini belongs to the same union as the applicant.
[22] When it was put to him that the applicant did not make a confession, he stated that the applicant did make a confession and further Mr Nhleko had informed him that the applicant had approached him and told him that he must not be part of this arbitration as he was no longer in the department therefore he will just nullify whatever is being said against him.
[23] He testified that he did not have any grudges against the applicant or Mr Nhleko and he could not influence any person to do anything against the applicant but the applicant could influence Mr Nhleko because this case was against him.
[24] He could not recall exactly when he notified the Department but he wrote a letter and after sometime received a request from the District to write another letter explaining exactly what had transpired. He then wrote the second letter but could not recall the date when this letter was written.
BUSISIWE SUSAN MKHWEBANE
The salient aspects of Ms Mkhwebane’s evidence are recorded below.
[25] She is an HOD for Languages at Pongola Intermediate School and regarded the applicant as a son. The subject teacher, Mr Nhleko reported this issue to her in her office while she was with Mr Mthiyane, who was the Science HOD however he is no longer at their school.
[26] Mr Nhleko informed her that the applicant had assisted him in downloading his subject paper. He reported that learners had written an exam in his subject paper and the applicant had downloaded the paper onto his phone and gave the answers to the learners. He further reported that the learners who did not have access to the answers were fighting outside so he had asked her to intervene.
[27] When she called the applicant to her office, Mr Dlamini, the Deputy Principal was also present. She spoke to them as a mother and told the applicant that what he did was wrong. They were trying to solve the issue and the applicant admitted that he did it and they thought the problem had been solved. She did not know how this matter reached the principal.
[28] She saw the scripts that were written by this class and her observation was that learners could not get to that level; it was clear that a teacher had assisted them. She did not know what happened to these scripts but Mr Mthiyane who was the HOD for science might know what happened to it.
[29] She interviewed the learners who were invigilated by the applicant and asked them about the incident and they confirmed that it had occurred. To address this issue, she spoke to Mr Nhleko and told him to download another paper so that the learners would start afresh and write another paper.
[30] The principal approached her after he had heard about the matter.
Under cross-examination she testified that:
[31] She had a good working relationship with the applicant and their relationship even now is still good.
[32] When Mr Nhleko came to report to her his condition was not good, she spoke to him and was able to calm him down. The meeting between her, Mr Nhleko and the applicant took place on the day of the incident. The applicant admitted that he gave assistance to the learners.
[33] The applicant had also assisted her in downloading papers. She downloads Zulu papers and agreed that anyone could have access to sites from where documents could be downloaded.
[34] When she interviewed the learners and asked them what had happened, they informed her that the applicant was invigilating, walking in between the desks, and he observed that they were writing wrong answers. He told them that they must start afresh, take new scripts, and destroy the ones that they were using. They then started afresh and he gave them the answers only for section A.
SAMUEL TKABONINI DLAMINI
The salient aspects of Mr Dlamini’s evidence are recorded below.
[35] He is the Deputy Principal at Pongola Intermediate School. When he entered the office, he observed that Mr Nhleko was complaining and angry. He came to know about this matter through Mr Mthiyane, who told him that Mr Nhleko was complaining that the applicant did something to his papers.
[36] After two weeks, he was called by the principal who asked him why he did not report about the copying allegations. He told the principal that the person the matter had been reported to did not come and report it to him because they knew he was no longer the chief invigilator.
[37] When asked that if someone says that the principal is fabricating this allegation of assisting learners because he was fighting with the applicant as he was not a SADTU member, he stated that previously there was a misunderstanding between the principal and the members of NATU but that cannot be linked to this matter.
Under cross-examination he testified that:
[38] Mr Mthiyane did not report the incident to him, he found them discussing the matter in the office but he was not actively involved in these discussions.
[39] It was the beginning of 2017 when the principal called him and according to him when the principal took the decision to report the matter, he was following the policy.
MUZTHINI CHURCHILL SIBANYONI
The salient aspects of Mr Sibanyoni’s evidence are recorded below.
[40] He is currently the Deputy Director Human Resource Management: Zululand District. He was the presiding officer at the applicant’s disciplinary enquiry and at that stage, he held the position of Senior Specialist Employee Relations.
[41] At the hearing in December 2016, the applicant was represented by Mr Ngomane from NATU and they indicated that they were not ready and requested a postponement. He made a ruling allowing the postponement but further indicated that he was not going to allow any further adjournments based on unpreparedness.
[42] Further, the matter was debated and in terms of the notice that the applicant had signed, he had checked if the applicant was in full understanding of its content and the applicant confirmed that he understood the notice, which clearly stated that if he requires a postponement on the basis of being sick, he must favour the tribunal with a medical certificate accompanied by an affidavit from an examining doctor who would indicate if the ailment was preventing the applicant from attending the proceedings.
[43] In January, Mr Ngomane only brought a medical certificate, which was not accompanied by an affidavit from the examining doctor. The medical certificate was issued on the 27/01/2018 and only indicated that the applicant was suffering from medical condition, which was not specified. In terms of the Notice and Resolution 1 of 2003, he ruled that the matter proceeds.
[44] He referred to the medical note and stated that the writer was trying to clarify the actual sickness on the medical certificate. This document was dated 19 June 2019 was not an affidavit and further the case had long been concluded.
Under cross-examination he testified that:
[45] The applicant was not suspended. They have a backlog of cases and endeavor to finalize cases within three months.
[46] He testified that he was guided by procedures and the applicant was supposed to have requested for an affidavit from the doctor. He was also guided by Resolution 1 of 2003, which states that if the Presiding Officer finds the reasons not substantiated enough, he may continue with the case in the employee’s absence.
[47] The word “apparently” on the sick note certificate also cast doubt that the medical practitioner did the examination and came to a conclusion. If the medical practitioner said that the employee was suffering from a medical condition and apparently had been deemed ill from this date, it actually means that all that the doctor relied on was what he was told hence the reason why there was no affidavit.
[48] He had a feeling that the applicant was deliberately delaying the case because in December 2016 he came just to indicate that he was not prepared so to be fair he allowed the applicant and his representative to go and prepare for almost a month. In January 2017, they discovered that the day before the applicant had gone to the doctor and came up with a medical certificate, which showed that the applicant was deliberately delaying the sitting.
[49] As the presiding officer he analyzed the submissions for the request for postponement and came to a conclusion and with the powers vested in him determined that the case proceed, which was a correct decision.
[50] The employer representative indicated that the non-signing of the notice was actually part of delaying tactics from the applicant.
Under re-examination he testified that:
[51] The applicant did not sign the notice of enquiry and the principal made a remark that the applicant indicated that he would acknowledge receipt the following day however he did not receive an acknowledgement.
APPLICANT’S CASE
THOKOZANI TOKYO NYAWO
The salient aspects of Mr Nyawo’s evidence are recorded below.
[52] He invigilated the 2016 agricultural sciences final exams. Three different subjects were being written at the venue. He was just monitoring the learners and was surprised about the charge.
[53] The relationship between him and the principal was very good but in 2017, he and about half of the teachers in the school changed unions, from SADTU to NATU. After they attended a NATU opening ceremony, the principal called all NATU members to his office and a ward councillor came in and shouted at them. The ward councillor told them that he was going to call Minister Nkonyeni, who was his friend, to dismiss all NATU members as well as mobilize the community against them. The following day they did not go to school but went to the secretary as they feared for their lives and while there they called the principal and the ward counselor. When the principal arrived he discussed the matter privately with the teachers and apologized, then they went back to school.
[54] After about 3 days, there was a staff meeting from 2pm to 7pm and the principal never gave NATU members a chance to speak. He only gave SADTU members, Ms Mkhwebane, Mr Shabangu and Mr Yende a chance to speak, who criticized them by saying that they are filth and NATU is filthy, then they ended up leaving this meeting before it finished.
[55] After a few days the principal called the NATU members one by one and the principal told him, “I’m building your case my dear”, and until today communication between the principal and other NATU members is not good. About 7 members had left that school when they changed from SADTU to NATU.
[56] During the first term, January to March they changed from SADTU to NATU and in the second term these conflicts started.
[57] When asked if he was saying that the principal was lying when he said that there was no friction between himself and either him and other NATU members, he stated that he could not say that the principal was lying, as an old person, he would say that he was not telling the truth.
[58] When told that the principal in his testimony had alleged that he confessed to having assisted learners as per the allegations in the charge sheet, he stated that he told the principal that he did not know about the allegations and was surprised by it.
[59] He had a good working relationship with Mr Nhleko and emphasized that at school he was the only person who was able to download documents for them but stated that anyone could use these sites for downloading past papers.
[60] When told that Ms Mkhwebane had testified that she had questioned him in Mr Nhleko’s presence and he had confessed to having assisted the learners, he stated that Ms Mkhwebane called him and talked to them because Mr Nhleko had suspicions but he denied admitting or confessing anything to her.
[61] He did not attend the hearing in January 2018 because he became sick at home and was taken to the doctor. By sending the sick note he was proving that he was not running away but just sick.
Under cross-examination he testified that:
[62] He affirmed when asked if he was implying that the principal would not have reported him if he was a SADTU member. On further questioning he was asked if he was implying that in fact he committed this offence and the principal was supposed to cover for him, he stated that if he was in SADTU then the principal was going to do what he was supposed to do.
[63] When it was put to him that the circuit manager who is a seasoned circuit manager explained what it means to acknowledge receipt of the enquiry and asked him to sign acknowledgment and he did not, he stated that because there was a party at school, he was just surprised about what was happening and had requested to go and consult about what he should do.
[64] He denied that his refusal to take the notice was a sign of insubordination and an attempt to avoid the disciplinary enquiry.
[65] He confirmed that he understood the clause in the notice pertaining to a medical certificate and affidavit by the Doctor. He did not attach the affidavit from the doctor because he had submitted a medical certificate as he thought that was what they wanted.
[66] When asked if he had put the version about the ward councillor threatening to call the MEC to dismiss all NATU members and mobilizing the community to the principal, he stated that he did not because he was not given a chance.
[67] It was put to him that he was represented and the version that the principal had apologized to them was not canvassed with the principal to confirm or deny, and he stated that he did not get a chance.
[68] When it was put to him that his testimony regarding Ms Mkhwebane and 2 other SADTU members shouting and calling the NATU members weird names was never canvassed with her, he stated that he did not get a chance. He simply stated he remembered when asked if he recalled that the principal and deputy principal were there and they were never reminded of this school meeting.
[69] When told that Ms Mkhwebane referred to him as her son so how could she also call him names and insult him just because he joined another union, he stated that he thought they became angry when they changed unions.
[70] When asked why the principal only chose him to be charged out of all NATU members, he stated because the principal said he will get them one by one.
[71] When asked why would Ms Mkhwebane come here and lie about this meeting and the fact that he admitted to the allegation, he stated that he did not know.
[72] He denied admitting to the principal and stated that they spoke about the allegation with Ms Mkhwebane and he told them that he did not know about it.
[73] He denied having his cell phone with him during the invigilation. It was put to him that the version regarding the cell phone was coming from the evidence presented by the respondent’s witnesses, and when he detailed his task and everything that he did on that particular day as invigilator why did he forget the material aspect of the cell phone, because the cell phone was what actually linked him to the assisting of the learners. He stated that he did not know how to respond to that but mentioned the things that he knew he did.
[74] When asked if he did not think it was important to mention the issue of the cell phone because the principal indicated that the memorandum was on his cell phone, he stated that he forgot to mention it.
SPHESIHLE ANELE ZULU
The salient aspects of Ms Zulu’s evidence are recorded below.
[75] She attended Pongola Intermediate School and completed grade 12 in 2018. She heard about the incident in November 2018 when she was in grade 12.
[76] She wrote this particular exam in 2016. While they were writing the applicant moved around the rows checking. She denied that the applicant helped them with answers.
[77] Mr Nhleko told them to look at past year papers and suggested that if they wanted to pass they needed to download papers to see the format and answer the questions.
[78] She agreed to be a witness for the applicant because she was a learner in that particular class. She further stated that Nothando Simelane, her neighbor was called to be a witness at school and after testifying came crying and told her that they called her to testify and say that the applicant made them copy agricultural science exam paper and she mentioned her name, thus the reason why she came here was to testify that the applicant never made them copy, she never copied and to clear her name.
Under cross-examination she testified that:
[79] When it was put to her that Mr Nhleko was the one actually responsible for setting this paper for them and if he knew that he had given them this question paper, why would he be suspicious and complain if they simply passed section A, she stated that she did not know.
[80] They prepared for section A in the morning on the cell phone of a learner who had downloaded the paper and memorandum; they had a look at a paper and decided how to answer it.
[81] Those that were to rewrite was called by their names and was not given a reason as to why they were writing the same paper twice. The other class was not made to rewrite. She denied that the paper they rewrote was different.
[82] Nothando Simelane was taken by Ms Mkhwebane who told her that they were going somewhere and then they bought her KFC. When they were about to arrive at the hearing they told her that they want her to be their witness to testify and say that the applicant made her copy when she was writing the agricultural science paper. She said that she was shocked and scared, but they told her that she must say this and that, such that Nothando’s mother became angry and complained to that teacher that she did not like it when they took her child to go and testify without her permission.
[83] She opted not to answer when it was put to her that this was a very interesting story as Ms Mkhwebane was here and no such version was put to her that she was manufacturing everything that she said and secondly that she coerced a certain learner by the name of Nothando Simelane to lie and testify without her parent’s permission.
PATRICK PHIKANI NGOMANI
The salient aspects of Mr Ngomani’s evidence are recorded below.
[84] He is an educator and is a member of the Executive Committee of NATU. He represented the applicant at the disciplinary enquiry. On that day they received the employer’s bundle hence they were not prepared for the hearing and requested a postponement, which was granted.
[85] He presented the applicant’s medical certificate on the 27 January 2018 but the presiding officer refused to postpone the matter because he stated that he cannot postpone the case for the second time.
[86] He was given an opportunity to cross-examine witnesses.
Under cross-examination he testified that:
[87] It was put to him that if the employee is not present during the disciplinary enquiry, the presiding officer will allow the employer representative to read the charges and then the presiding officer will enter the plea of not guilty and he stated that this did not happen.
[88] When asked if he produced the affidavit he confirmed that he did not comply with the Notice of Disciplinary Hearing.
[89] It was put to him that Mr Sibanyoni had testified that in the first sitting he gave them a chance to go and prepare because they were not ready, he stated that he was not ready because he had no documentation. He was informed that the applicant had been charged and there will be a hearing. He received the charges the same day from the presiding officer.
[90] It was put to him that it was his fault as union for failing to advise his member that it is incumbent upon him to get the documents and he stated that whoever was serving him with the Notice did not go back to serve him with the notice.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the evidence and arguments of the parties as well as the documentary evidence submitted.
[91] The applicant contends that he was unfairly dismissed by the respondent and seeks the retrospective re-instatement and compensation.
[92] The respondent opposed the application and prays for the dismissal of the application and for the confirmation of the sanction by the presiding officer.
[93] During or about 27 November 2017 the Respondent served a notice of disciplinary hearing on the applicant. The charge in the notice referred to the following allegation: -
Charge:
In 2016 at or near Pongola Intermediate School, you committed a misconduct by assisting learners with a memorandum while they were to write Agricultural Sciences final exam. You thereby contravened Section 17(1)(a) and Section 18(f) of the Act.
[94] There was no dispute about the existence of a dismissal. According to Section 192 read with Section 188 of the Labour Relations Act (the Act), the onus was, therefore, on the Employer to justify the dismissal on both substantive and procedural grounds.
PROCEDURAL FAIRNESS
[95] In terms of the Code of Good Practice in respect of Fair Procedure, normally the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need 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. If the employee is dismissed, the employee should be given the reason for the dismissal and reminded of any rights to refer the matter to a council with jurisdiction.
[96] The applicant challenged procedural fairness of the dismissal in that there was a delay and the hearing on the second sitting was conducted in his absence despite the fact that he had presented a medical certificate via his representative.
[97] It was not in dispute that this incident took place in 2016 during the writing of the final exams. The principal testified that it was in the beginning of 2017 when he heard the rumours and took it upon himself to investigate these rumours. He confronted the HOD’s, had a meeting with the educators and interviewed the learners. He had subsequently reported the incident to the department but was asked to write another letter with further particulars. The disciplinary hearing was set down on the 6 December 2017 and thereafter postponed to 29 January 2018. I find that there is a reasonable explanation with regards to when the incident came to the knowledge of the principal, his investigation thereof, his reporting of the incident to the department and their request for further particulars.
[98] It remained undisputed that the presiding officer had fully explained to the applicant the paragraph in the notice pertaining to absence due to a medical condition, which medical certificate must be accompanied by an affidavit from the examining medical practitioner and during cross-examination the applicant confirmed he understood the notice. The medical certificate simply states that the applicant was suffering from a “medical condition” and that he was “apparently ill as informed by the patient”.
[99] The onus to provide the affidavit from the examining medical practitioner rests with the applicant. The applicant failed to meet the requirements set out in the notice. He provided a note from a medical centre attempting an explanation of his illness, which is dated 19 June 2019, more than 2 years post his dismissal, which clearly shows a lack of urgency in dealing with his own matter. I find that the respondent was justified in proceeding in his absence.
SUBSTANTIVE FAIRNESS
[100] Item 7 of Schedule 8 in the Code of Good Practice: Dismissal sets out guidelines for Employers to follow when dismissing Employees for misconduct.
[101] The Code provides that in determining whether a dismissal for misconduct is fair or not, the following should be considered:
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the work-place; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard
(ii) the employee was aware, or could reasonably be expected to have been aware of the rule or standard
(iii) the rule or standard has been consistently applied by the employer
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
[102] In Sweeney v Transcash [2000] 6 BALR 712 (CCMA) it was held that arbitration hearings constitutes a rehearing de novo on the merits. The award must accordingly be based on evidence led at the arbitration, not on the record of the disciplinary hearing. The decision to dismiss the applicant was taken after the disciplinary hearing.
[103] In De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others (JA68/99) [2000] ZALAC 10 (3 March 2000) the court held at para “[48] It is important to remember that once the facts are established, it is, ultimately, a matter of opinion whether a dismissal is fair or not.” [50] The onus is thus on the employer to prove the facts upon which it relies for the dismissal. If the facts upon which the employer relies are not proven at the end of the arbitration proceedings, then cadit quaestio, the employer has failed to prove the fairness of the dismissal. On the other hand, if the employer does prove the facts upon which it relies, then the arbitrator must make a determination as to whether or not the dismissal is unfair.”
[104] The Respondent’s version was presented via the testimony of four witnesses. The first being the principal who testified to the circumstances of how he heard about the rumours, his investigation thereon and the reporting of the allegation to the department. He testified that Ms Mkhwebane had told him that Mr Nhleko was angry and upset that the applicant had assisted learners in the 2016 final exam agricultural science paper. Further that the applicant had admitted his wrongdoing and had apologized to her. This was corroborated by Ms Mkhwebane who testified that she considered the applicant as her son and he had admitted his wrongdoing and had apologized to her.
[105] In ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 10 BLLR 939 (LAC) the Labour Appeal Court noted that “A failure to cross-examine may, in general, imply an acceptance of the witness’s testimony.”
[106] The applicant made accusations that the principal had targeted him because he changed his union membership from SADTU to NATU. Further, that Ms Mkhwebane at a school meeting had criticized and insulted them because they were NATU members.
[107] Ms Zulu did not come across as a satisfactory witness. I find it inconceivable that she only heard about this incident in November 2018, yet she testified that the other class was not made to rewrite and those who were to rewrite were called by their names. Further, her versions regarding their rewriting of the same paper and Nothando Simelane were never put to the respondents’ witnesses.
[108] Even Mr Ngomani’s versions were never canvassed with the presiding officer.
[109] Significantly, the applicant failed to put his various versions to the respondent’s witnesses while they were testifying.
[110] All the respondent’s witnesses came across as honest and did not hesitate when testifying. They were clear and candid in their responses. Further, none had any grudges against the applicant. The principal and Ms Mkhwebane were steadfast in stating that the applicant admitted the allegation and had apologized to them. These witnesses also corroborated the other witness’s versions.
[111] I find it highly improbable for the applicant to simply forget to put these versions to the respondent’s witnesses especially since he was represented.
[112] The applicant’s defence was a purported claim that the principal disliked his union membership change to NATU and this defence was never corroborated. Even Mr Dlamini who was a SADTU member testified that this incident was not related to any union issues and the principal took action as required by policy.
[113] The applicant further failed to challenge the principal’s testimony that Mr Nhleko did not attend this arbitration hearing because he was influenced by the applicant as this case was against him.
[114] I have noted the applicant’s answer under cross-examination that the principal was going to do what he was supposed to do if he was a SADTU member, which in essence meant that he was indirectly admitting to the allegation.
[115] I find the applicant’s defence unreliable, uncorroborated, and not probable.
[116] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC), the court at held at para [78] “In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal.”
[117] The respondent bore the onus of proving the allegations against the applicant. I am satisfied that the evidence of the respondent is more probable than that of the applicant and I accordingly find the dismissal to have been substantively fair.
[118] I determine that the sanction imposed by the respondent to be appropriate and find no reason to interfere with the sanction of dismissal.
AWARD
[119] The dismissal of the applicant, Thokozani Tokyo Nyawo, was substantively and procedurally fair.
[120] There is no order as to costs.
ELRC Commissioner: P. Jairajh