Case Number: PSES 131-20/21WC
Province: Western Cape
Applicant: NAPTOSA obo N.Khanisa-Jafta
Respondent: Department of Higher Education and Training
Issue: Unfair Dismissal - Misconduct
Award Date: 8 October 2020
Case No: PSES 131-20/21WC
In the matter between
NAPTOSA obo N.Khanisa-Jafta Applicant
Department of Higher Education and Training Respondent
ARBITRATOR : A.Singh-Bhoopchand
HEARD : 22 September 2020
DATE OF AWARD: 8 October 2020
DETAILS OF HEARING AND REPRESENTATION
1. This matter concerning an alleged unfair dismissal was heard on 22 September on the Zoom online video conferencing platform.
2. The applicant was represented by Mr Xolile Zigebe, a representative of the trade union NAPTOSA. The Respondent was represented by Mario Boezak a representative from the Human Resource Department.
3. A bundle of documents was submitted and shall be referred to where necessary.
ISSUE IN DISPUTE
4. I must decide whether the dismissal of the applicant was procedurally and substantively fair.
5. The applicant was employed by the Respondent as an education specialist and at the time of her dismissal she was an acting Academic Head at the False Bay TVET College. Her services were terminated after she was found guilty of misconduct at an internal disciplinary hearing. The allegations against her were:
i.) Gross misconduct, tampering with an official College letter (Bursary Confirmation letter) and by doing such, misrepresented the College on 28 January 2019.
ii.) Bringing College name and image into disrepute on 28 January 2019
6. The Respondent had granted the applicant a bursary to study towards an honours degree at the University Of Cape Town (UCT). It was envisaged that the degree would be completed over a period of two years on a part time basis. The applicant completed the degree in one year. Applicant then decided to pursue a Masters degree at the University of the Western Cape (UWC). Respondent disputes any knowledge of the completion of the honours degree in one year and of the applicant’s intention to further her studies at UWC. Applicant admits that she altered the bursary letter, and she acknowledges that she ought not to have done so. Applicant disputes the second charge.
7. In her final closing submissions, Applicant informed me that she was subjected to an internal disciplinary process at UWC where she was found guilty of having contravened the university rules. The sentence reads as follows:
i.). Exclusion from the University for 6 (six) months , suspended for the duration of her studies provided that she is not found guilty of contravening any of the Student Discipline Rules during this period.
ii). The student is to address a letter of apology to the office of Student Credit Management;
iii). The student is to complete 20 (twenty) hours community service in the community in which she resides in consultation with the Proctor’s office; and
iv), Endorsement of study records of the student for a period of twelve months.
8. On 19 August 2019, Respondent served the applicant with the Notice of dismissal with immediate effect. On 28 August 2020, the applicant lodged an appeal against her dismissal. Despite an appeal having been lodged, the applicant was not allowed to resume her duties pending the outcome of the appeal. During September 2019, the applicant escalated her unhappiness in this regard to the Respondent’s Labour Relations Directorate. Following her complaint, she was allowed to resume duties upon intervention from the Head of Department, Labour Relations. However, she was not allowed to return to the position of Acting Academic Head. The outcome of the appeal confirming the Applicant’s dismissal was conveyed to her in a letter from the Minister of Higher Education and Training on 27 July 2020. She was paid for her services until the end of July 2020.
9. Applicant then referred a dispute to this tribunal in which claims that the sanction of dismissal is too harsh. She also claims that the conduct of the Respondent in not allowing her to resume the position of Acting Academic Head, to which she had been formally appointed, was unfair.
10. Applicant disputes the procedural fairness on the grounds that she was dismissed despite the fact that the outcome of her appeal was still pending.
SUMMARY OF EVIDENCE
11. One witness testified, namely Ms Melanie Anne Rhoda, the Human Resource Officer. Upon the applicant’s application for a bursary, she processed all the necessary paperwork. The bursary was granted, and the applicant registered for studies in 2018. All bursary holders are required to study part time and it was envisaged that the course would take two years to complete. It is practice for her to engage with students on progress. In January 2019 she wrote a second bursary letter for the applicant’s second hear of studies. At some stage when the applicant had enquired about pursuing a Masters degree, she had verbally explained to the applicant that this was a new qualification and that she needed to re-apply for a bursary.
12. Subsequently she received a call from UWC requesting payment for the Masters degree. She was surprised and confused by this as she had only issued a letter for the applicant to study for her honours at UCT. She then asked UWC to send her the letter purporting to be a bursary letter for a Masters degree at UWC and when she saw the letter it was apparent that the applicant had altered the letter. This act on the part of the applicant has brought the name of the Respondent into disrepute. UWC viewed the incident in a very serious light and they said that they would take disciplinary action against the applicant. No moneys were paid over to UWC. Had she not received the call from UWC it would have been a “disaster”.
13. During cross examination it was put her that the applicant had informed her in various emails (Pages 59, 60, 62, 66 & 67 of the bundle) that she had completed her honours degree in one year; that she intended to study for her Masters degree at UWC and that she sought clarity on what needed to be done. She acknowledged that she had received the emails but that there was an oversight on her part and that she had done “selective reading “of the emails. She conceded that there had been gaps in her communications with the applicant
14. The applicant, Ms Jafta testified that the full time and part time students for the honours programme were in one class. Hence, she was able to complete her honours degree in one year. When she got her results, she informed Ms Rhoda that she had passed and that she had completed the course. Shortly thereafter she asked Ms Rhoda in an email to her if the bursary had been for one year only. In the same email she informed her that she intended to study for her Masters at UWC. She subsequently asked her for a bursary letter in more than one email. Ms Rhoda eventually sent her the bursary letter with an attachment and when she received the email, she merely glanced at it as she was busy with students at the time. This happened on a Friday and when she eventually opened the email it was after four in the afternoon. She saw that the letter stated “Honours at UCT” and not Masters at UWC. At this stage she had already requested leave to go to UWC on Monday to register for the Masters degree. She could not reach Ms Rhoda at this time, so she altered the letter, and she left it on her desk. She went to UWC without the letter. During the registration process, she was asked if she was a bursary holder as the registration fee payable differed for bursary holders and non-bursary holders. When she informed them that she was a bursary holder, they said that they needed a letter to confirm this. She then called her office and got someone to send her the letter that was on her desk. The lady assisting her at UWC said that the letter needed to be verified so she called the college to verify the letter. She thereafter stamped the letter confirming that it had been verified. She knew that the letter would be verified as she had already communicated to Ms Rhoda about her intention to pursue a Masters degree at UWC.
15. During April she bumped into Ms Rhoda as they were both now working on the same campus. She again told her that she was registered for a Masters degree at UWC and she again requested clarity on the way forward. Her response was that she would have to re-apply for a bursary. On 2 July she was called to a meeting with her supervisor where she was asked to explain what happened at UWC. She was told that UWC was threatening to charge her internally and that they further intended to report the matter to the South African Police because she had committed fraud. This was shocking to her because everything she had done was based on communication with Ms Rhoda. She showed her supervisor the string of emails that she had sent to Ms Rhoda. Her supervisor’s response was that it was clear that she and Ms Rhoda were “talking past each other”.
16. She is remorseful that she altered the letter, and she realizes that she ought not to have done so. Given another opportunity she would do things differently. There was no malicious intent on her part. She did not ask for the deposit that she paid to be re-imbursed to her -she did not benefit financially. She is a mother of a child with special needs and is dependent on the income to support her child. She has a good academic record, and she is dedicated to her work often going the extra mile.
17. Malcolm James Meyer, a senior education specialist at the False bay TVET College testified that the applicant reported to him. Applicant was a dedicated and hardworking employee and she often went the extra mile. If the applicant is reinstated he would still be able to trust her and to work with her.
18. The Respondent bears the onus to prove on a balance of probabilities that the dismissal was for a fair reason and that a fair procedure was followed in arriving at the decision to dismiss. Applicant admits to the main allegation against her. In essence, her case is that the sanction is too harsh in the circumstances of her transgression and her personal circumstances.
19. In determining the appropriateness of the sanction, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd . I have also considered the Guidelines on Misconduct Arbitrations. An arbitrator must determine whether the sanction is fair or not. He/she is not required to defer to the decision of the employer.
20. What is required is that the arbitrator must consider all the relevant circumstances and impose a fair sanction. Ultimately, the arbitrators’ sense of fairness must prevail and not the employer’s view. In judging the fairness of the sanction, the arbitrator must ultimately apply a moral judgment to the established facts and circumstances of the case. Determining whether an appropriate sanction was imposed involves three enquiries namely, an enquiry into the gravity of the offence /contravention; an enquiry into the consistency of the application of the rule and sanction and an enquiry into the facts that might justify a different sanction. Consideration must be given to both the interest of the employee and the employer.
21. There can be no question that the offence is serious even under circumstances where the applicant believed that there was an error in the letter. The correct course of action ought to have been for the applicant to have reverted to the college, pointed out the error, and to have asked for it to be corrected by the college. However, not every act of serious misconduct or even dishonesty for that matter need necessarily be visited with the sanction of dismissal. Due consideration must be given to the guidelines on the appropriateness of the sanction. A key factor that militates against the sanction is that the applicant did not have any intention to deceive the college. As far as she was concerned the College was well apprised of the facts regarding the completion of her course at UCT and her desired intention to pursue further studies at UWC. Her evidence in this regard is well supported by the various emails to the Human Resource Officer tasked with managing the allocation and processing of the bursaries. That the HR officer chose to only “selectively read” the emails is not of the applicant’s doing. The applicant’s version that she was merely correcting what in her mind was an error on the part of the College, is plausible under the circumstances.
22. Applicant appeared genuinely remorseful of her actions and acknowledges that despite her belief that there was an error in the letter, she ought not to have tampered with it. Acknowledgement of wrongdoing is the first step to rehabilitation. She has demonstrated a strong commitment to improving her academic and professional background which will ultimately be to the benefit of the College and its students. The misconduct itself does not directly impact on her core functions as an employee and neither does it directly impact on the core business of the College which is to educate its students. There is no evidence, and neither are the surrounding circumstances such that the continued employment relationship would be intolerable. In fact, Mr Meyer, who was her direct superior testified that he would be able to trust her and work with her again.
23. In terms of the second allegation of bringing the College name into disrepute, the applicant has been disciplined by UWC and has received a fairly harsh sanction. There is no evidence that the University would not admit bursary holders in the future from TVET Colleges as a result of this incident. Put differently, the relationship between the College and the University does not appear to have been permanently harmed. Respondent has not been held vicariously liable for the action of the applicant. I do acknowledge though that the College would have been embarrassed.
24. Applicant appeared reasonably young with a potentially long working life ahead of her and she has a daughter with special needs to take care of. I am not convinced that when considering the totality of the circumstances that this is a case that warrants the termination of the employment relationship. Her return to the College is practicable despite her misconduct, and a continued employment relationship is not intolerable. Progressive discipline rather than dismissal is more appropriate in the circumstances. I find that the dismissal was substantively unfair.
25. I do not find any procedural flaws in the dismissal in that she was given a fair hearing. The applicant is aggrieved that her services were summarily terminated at the conclusion of the disciplinary hearing despite the fact that she appealed the decision and that the outcome of the appeal was still pending. However, she was allowed to resume her duties at the intervention of the Labour Relations Directorate. In essence she did not suffer any financial loss because she was paid her salary until her appeal was finalized at the end of July. She is also aggrieved that when she resumed her duties, she was not allowed back into the Acting position to which she had been appointed for a year, but instead she was asked to revert to her permanent position. She sees this as a demotion and seeks to be compensated for the difference in salary between her permanent position and the higher Acting position for the period between the conclusion of the disciplinary hearing and the finalization of the appeal.
26. I do not deem it appropriate for the Respondent to have to pay any kind of compensation or back pay for that matter to the applicant given that she is guilty of serious misconduct. A serious sanction is warranted. The period from the date of dismissal to the date of resumption of employment is to be regarded as a sanction of suspension without pay. In addition to this a Final Written Warning valid for a period of twelve months is also considered appropriate.
27. In the premises, I make the following award:
1. The dismissal of the Applicant, Khanisa Jafta, was procedurally fair and substantively unfair.
2. Respondent is ordered to reinstate the applicant into her permanent position effective from 1 November 2020.
3. The period from the date of dismissal to the date of resumption of duties on 1 November 2020 is to be regarded as a sanction of suspension without pay.
4. A further sanction of a Final Written Warning for a period of twelve months is imposed.
5. I make no order as to costs.