Case Number: PSES 319-19/20WC
Province: Western Cape
Applicant: Louis Titus Carelse
Respondent: Department of Higher Education & Training and Northlink TVET College
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Northlink College in Bellville
Award Date: 20 January 2021
Arbitrator: Michael Marawu
Panellist/s: Michael Marawu
Case No.: PSES 319-19/20WC
Date of Award: 20-January-2021
In the ARBITRATION between:
Louis Titus Carelse
(Union / Applicant)
Department of Higher Education & Training and Northlink TVET College
Union/Applicant’s representative: Mr M Chennells (Attorney)
Union/Applicant’s address: Green Point
Telephone: (021) 012 5812 / 072 627 1548
Telefax / Email: (021) 012 5812 / email@example.com
First Respondent’s representative: Mr M Boezak (DHET Official)
Respondent’s address: 6th Floor Sanlam Centre
Cape Town, 8000
Telephone: (021) 204 1810/29 / 082 672 5554
Telefax / Email: firstname.lastname@example.org
Second Respondent’s representative: Mr D Bothma (Northlink Official)
Respondent’s address: 6th Floor Sanlam Centre
Cape Town, 8000
Telephone: (021) 204 1810/29 / 082 672 5554
Telefax / Email: email@example.com
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was held at the premises of the Northlink College in Bellville from 19 March 2020 and concluded on 05 November 2020; the parties were further given until the 3rd December 2020 to submit closing arguments including arguments on papers relating to the second question of unfair labour practice and/or outstanding payments to be consolidated to the alleged unfair dismissal claim.
2. The applicant was represented by Mr Mile Chennells (Attorney) and the Department of Higher Education and Training by Mr Mario Boezak (Labour Relations’ Assistant Director); the Northlink TVET College (second Respondent) was represented by its Human Resource Manager, Mr Deon Bothma. The arbitration proceedings were digitally recorded.
THE ISSUE TO BE DETERMINED
3. I must determine whether the Applicant’s dismissal was substantively and/or procedurally fair. Furthermore, the Applicant is claiming outstanding benefits (part of his remuneration) that was allegedly withheld from him by the first as well as the second Respondents, during the latter part of his paid suspension period.
BACKGROUND TO THE ISSUE
4. The Applicant was employed with the first Respondent as the Acting HOD/Programme Manager of Fitting and Machining (Engineering Department) at Northlink TVET College, Wingfield Campus with effect from February 2000. He was earning a basic monthly remuneration of R31000.00 prior to his dismissal.
5. It is alleged that the Applicant was unfairly dismissed by the Respondent on 08 July 2019, after his appeal with the Minister of Higher Education and Training was unsuccessful.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE RESPONDENT’S CASE
6. Mr Raymond Cornelse (Wingfield Campus Manager) testified that he was the Campus Manager and the Applicant’s superior, based at the Wingfield Campus since 2017.
7. The Applicant was charged with the allegations of gross insolence as well as insubordination relating to his alleged failure to comply a reasonable and lawful instruction to produce a procurement list (wishlist) of the Metrology equipment required from him by the 12th March 2018.
8. The allegation of gross insolence was prompted by the Applicant’s reaction towards him (Mr Raymond Cornelse) on 12 March 2018, when the Applicant shouted at him asking with an angry tone “are you a doctor”.
9. This unacceptable conduct by the Applicant was based on his instruction to the Applicant to present a procurement list of the Metrology equipment that was likely to be donated or supplied on favourable terms, by an international supplier of such engineering equipment (Mitutoyo). The Applicant wanted to be released urgently on 12 March 2018, whereas he (Mr Raymond Cornelse) wanted to be provided with the said procurement list, which was already requested in writing from the Applicant since January 2018.
10. He subsequently stormed out of his office and left the workplace, without complying with his reasonable instruction or getting permission to leave the workplace earlier than normal working hours. The Applicant had shown no progress or interest whatsoever to deliver this important procurement list, required from the College by an important external stakeholder.
11. He expected to receive the procurement list from the Applicant within a reasonable period since January 2018 or at least receive a reasonable feedback instead. The Applicant was still on a valid final written warning issued to him for insubordination allegation in September 2017, for his failure to provide relevant information requested from him by the College’s Human Resource Manager’.
12. Mr Neil Edgar Maggott (Acting Principal) testified that the Applicant’s conduct caused the institution serious reputational problems, by not providing important equipment procurement list, sought by a potential donor over a period of two months. He was also aware of the Applicant’s final written warning issued to him in January 2018, after appealing to the then CEO against a dismissal sanction effected in December 2017; allegations were deemed unrelated to this current matter’s allegations.
13. He does not believe the Applicant could work well with the institution’s leadership going forward, as he deemed his conduct to be serious and creating liabilities for the institution.
14. The first Respondent’s closing arguments challenged the Applicant’s procedural unfairness claim, as it related to the lengthy delay of almost fourteen (14) months pending his appeal outcome. The Applicant’s appeal application was rejected on the basis that it was received some days beyond the required five working days timeframe provided for in the department’s disciplinary procedures and relevant collective agreement’s guidelines.
15. The first Respondent argued further that the Applicant’s lateness is to blame for the negative appeal outcome towards him, and he has his trade union representative(s) to blame in turn, for the lack of seriousness and urgency in pursuing his appeal application on their part. The Stokwe Constitutional Court judgement relied upon by the Applicant’s legal representative in this regard, was based on an appeal outcome that took much longer to be delivered (almost five (05) years) than the Applicant’s almost 14 months’ delay; these are two different and significantly distinguished scenarios.
16. In the first Respondent’s arguments it is further stated that the Applicant is not necessarily entitled to the outstanding portion of his housing as well as GEHS benefits claimed, as he is above the threshold provided for in the Basic Conditions of Employment Act (the BCEA), as amended. It is not disputed that the amounts that were contractually paid to the Applicant prior to his dismissal in May 2018 were withheld, however it is argued that he is not entitled to claim such amounts under the provisions of the BCEA.
17. In its closing arguments the second Respondent made specific submissions in respect of the discretionary allowances (benefits) such as acting and scarce allowances, which were not paid to the Applicant for the 14 months period pending the appeal outcome. The second Respondent was the Applicant’s main employer prior to the department of Higher Education and Training (DHET) take over (merger).
18. The second Respondent is of the belief that due to the existence of a dual employment relationship the Applicant is subjected to terms of conditions of employment under the auspices of the DHET as well as the Northlink TVET College; the latter is not bound to the provisions of the Collective Agreement(s) observed by the first Respondent (DHET), in the circumstances. It did not have a legal duty to continue to pay discretionary benefits to the Applicant, while he was not performing duties in the Respondents’ workplace, pending his appeal outcome.
19. Relevant case law authorities were cited in the second Respondent’s submission that it had no specific duty in law, to continue paying the Applicant’s discretionary allowances for the period he waited for his appeal outcome.
THE APPLICANT’S CASE
20. Mr Louise Titus Carelse is the applicant in this matter and he testified that he was an acting head of the fitting and machining department, based at Northlink Wingfield Campus for a period of almost 20 years. He was suspended and subsequently dismissed for an unfair reason, when he fell ill while at the workplace on 12 March 2018. He approached his Campus Manager (Mr Raymond Cornelse) to seek his permission to be released immediately on that particular day so he could go see a doctor, as he was experiencing severe pain.
21. The fact that the Campus Manager was refusing to release him when he was seriously ill was unfair towards him and caused him to ask rhetorically if he was a medical doctor to refuse him permission to go see a doctor even though he was sick and experiencing severe pain.
22. He did not shout or use an angry tone with the Campus Manager, he was too weak to raise his voice or speak angrily; he found Mr Cornelse’s attitude towards him on that day to be shocking, in the circumstances.
23. The Metrology equipment procurement list (wish list) he was required to provide was not within his area of expertise, but had to rely on the assistance and contributions of his other colleagues (Mr Michael Abrahams and Ronald Murray), who were seasoned professionals with relevant practical experience in the Metrology area of expertise.
24. He even consulted the supplier representative (Mr Keith H. Dreyer of Toolquip and Allied, also known as Mandek) immediately upon receiving the request for the Metrology equipment procurement list. He did not ignore or neglect to comply with his manager’s instruction or request, but was busy doing something about it and needed other parties’ contribution, as Metrology was not his area of expertise or specialisation.
25. When he returned from his sick-leave after the 12th March 2018, his colleagues that he consulted to work on the list with him had already submitted the procurement list, prior to his suspension by the Respondent.
26. Upon his dismissal in May 2018, he immediately submitted his appeal to the DHET and only received outcome thereof in July 2019, more than a year later. His family and his daughter in particular were subjected to untold prejudice, as they could not enjoy certain academic benefits they would otherwise be entitled to. He had no funds paid for a lengthy period while his appeal application was still pending, to the extent he lost his properties and other important material possessions.
27. The DHET Human Resource policy guidelines provided for the continuation of full remuneration until the appeal outcome was issued. In his case he received no remuneration or feedback during his pending appeal application for more than a year. When his remuneration back pay was ultimately paid by the DHET, he did not receive part of his outstanding remuneration payment due to him.
28. The Housing as well as well GEHS individual save benefits, which were part of his remuneration paid to him by the DHET until initial dismissal in May 2018 were withheld from him during the period pending his appeal outcome. The second Respondent also withheld the payment of ‘Top-up’ and ‘Basic’ salary that were always paid to him prior to his dismissal in May 2018.
29. The total amount of benefits withheld from him by the DHET pending his appeal outcome received in July 2019 was R14 698.42, and the Northlink College unpaid remuneration for the period pending appeal outcome amounted to R112 465.84; bringing his total claim of unpaid remuneration including benefits to R127164.26.
30. The first Respondent’s disciplinary procedure and policies provides for the continued payment of full remuneration with relevant benefits to its employees, until the appeal outcome is delivered. In this particular case though, the Respondents did not pay the Applicant the above amounts after his initial dismissal in May 2018, whereas his appeal outcome was only delivered to the Applicant in July 2019.
31. Mr Michael Abrahams (Lecture of Fitting and Machining @ Wingfield Campus) testified that he worked with the Respondent since 2013, under the supervision of the Applicant. He previously worked as a Chief Inspector of Metrology for ten years at his previous company before joining the College in 2013.
32. He regarded himself as the subject expert of the Metrology as compared to the Applicant. He could also confirm that the Applicant sought their input as the Lectures with knowledge in the Metrology field on what relevant equipment necessary to procure, prior to him were leaving the College in March 2018.
33. He ultimately visited equipment supplier to research about equipment to procure for the College Metrology lab and was able to contribute towards the list ultimately to the College’s management in 2018.
34. Mr Ronald Keith Murray (Facilitator for Fitting and Turning @ Wingfield Campus) also testified that he worked under the supervision of the Applicant after joining the College’s Wingfield Campus since 2012. He could confirm that the Applicant approached him and his other colleagues between January and February 2018, in order to assist in compiling the Metrology equipment procurement list, bases on Metrology catalogue (book) he presented to them for guidance.
35. He subsequently worked with Mr Michael Abrahams on the Metrology equipment procurement list, as they were told not to interact with the Applicant after 12 March 2018. The Applicant had tasked him and Mr Abrahams to compile list for him, but it took them a bit of time to compile, as they also had to focus on their teaching duties at the time.
36. Mr Keith Herold Dreyer (Former Representative of Toolquip & Allied, also known as Mandek) testified that his previous employer had a strong relationship with the Northlink College. He personally visited the College almost every week to interact with relevant officials and management about the College equipment’s requirements.
37. He could recall his personal interaction with the Applicant about the Metrology equipment procurement list he wanted to compile, and indicated to the Applicant that he would put together some details (recommendations for proper quotation) for him to consider in preparing the required procurement list. By the time he returned to the College around March 2018, hoping to continue his discussion with the Applicant, he was made aware that the Applicant was no longer with the College.
ANALYSIS OF SUBMISSIONS AND ARGUMENTS
38. It is common cause that the Applicant was dismissed by the Respondent in July 2019, after receiving his appeal outcome from the Minister of Higher Education and Training. Therefore, the main issue to be decided is whether the Applicant’s dismissal was procedurally and/or substantively fair. In dealing with this issue, it is critical to consider section 192 of the LRA, which states the following:
“(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.
(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.
39. In its quest for proving substantive fairness, the Respondent presented four charges that the Applicant was dismissed on, which all related to the alleged insolent and insubordinate conduct displayed towards his superior and failure to provide Metrology equipment procurement list on the 12th March 2018. The charges against the Applicant were presented as follows:
“1. Gross Insolence towards the Campus Manager of Wingfield Campus relating to an incident which took place on Monday, 12th March 2018.
2. Performing poorly and inadequately for reasons other than incapacity relating to you producing information requested by an external stakeholder, Mr David Thomson, on 12th March 2018.
3. Causing professional and reputation harm to the good name of Northlink College:
• By failing to produce information requested by external stakeholders (Mr David Thomson of Mitutoyo) on Monday 12th March 2018 within the agreed upon time-frame.
4. Failure to carry out a lawful order or instruction without just or reasonable cause:
• By failing to produce a required task to external stakeholders on Monday 12th March 2018.
• By not producing information requested by an external stakeholder you compromising the College’s interest.”
40. All the above allegations related to an incident that occurred on the 12th March 2018, when the Applicant went to the Campus Manager to report that he was feeling unwell on that particular day and sought to be released, in order to go and consult a doctor. The Campus Manager required the Applicant to submit the Metrology equipment procurement (wish-list) that was requested by the potential donor (Mitutoyo) since 22 January 2018.
41. The two argued as the Applicant was not pleased with the Campus Manager’s uncaring response to his urgent request to be released to seek medical attention and the Campus Manager’s focus was that the Applicant needed to submit the list at once, as it had been long overdue. During the arbitration proceedings, the Applicant presented proof that he indeed visited a medical doctor on 12 March 2018, for necessary medical examination and this fact was not placed in dispute by the Respondents.
42. Things seemed to have been heated up between the two individuals on the 12th March 2018, as one put a particular value on attending to his health and other used the opportunity to secure important professional information that was required at the time. Evidence was led to also confirm that the two were working colleagues that met regularly to discuss professional business and had many other occasions to do such around the day in question.
43. Understandably, the Campus Manager was anxious to secure the required list from the Applicant as it was already due for some time then (about six weeks), however the Applicant’s reaction on that particular day mainly sought to object to the Campus Manager’s disregard of his health condition he came to report but diverting focus on work. Seemingly, there was no other opportunity available to the parties beyond the 12th March 2018 to have a follow up meeting or discussion about the equipment procurement list, as the Applicant was suspended immediately upon returning from sick-leave.
44. As presented by the first Respondent’s witness (Mr Raymond Cornelse) the statement “are you a doctor” and the loud tone used by the Applicant is what the first Respondent viewed as Gross Insolence.
45. The Applicant admitted that he rhetorically asked the Campus Manager if he was a medical doctor as he was extremely concerned about his uncaring attitude towards his personal health, but did not shout or use a loud voice (unacceptable tone). I could not find evidence of gross insolence or insubordinate conduct from the exchange the two individuals had on the 12th March 2018; the first Respondent did not necessarily discharge its onus of proving gross insolence as alleged, in the circumstances.
46. The second part of the allegations referred to the alleged failure to carry out a reasonable and lawful instruction by the Applicant, when he did not provide the required Metrology equipment procurement list requested from him since 22 January 2018. Judging by the testimony of the three witnesses presented by the Applicant during the arbitration proceedings, it is evident that the Applicant did take necessary steps to consult relevant colleagues and supplier representative (Mr Keith H. Dreyer of Toolquip & Allied), in order to produce properly compiled procurement list.
47. I am of the view that a properly constituted discussion or meeting between the Campus Manager and the Applicant on any other day, but the 12th March 2018 when the Applicant was reporting to be ill, would have afforded both parties an opportunity to deal with the matter more effectively.
48. Proper investigation of the circumstances surrounding the Applicant’s delay in providing the list, could have revealed as it has been subsequently argued in the arbitration proceedings, that the Applicant did not necessarily possess all the relevant skills and the subject matter knowledge. He had to rely on the cooperation of his two colleagues (Mr M Abrahams and Mr RK Murray) as well as the subject matter expert (Mr KH Dreyer), in order to deliver a comprehensive list.
49. According to Mr KH Dreyer’s testimony, by the time he returned with relevant details he prepared for the Applicant’s required list he found that the Applicant was already suspended by the Respondent. The other two Applicant’s witnesses also testified that they had already been working on equipment procurement list as it was requested from them by the Applicant, thus it was not to too difficult for them to produce and submit list when the Applicant was no longer available.
50. In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the Constitutional Court held that fairness requires a balancing of the interest of the employer and employee parties.
51. An arbitrator must consider the totality of circumstances in determining the fairness of dismissal. In terms of the Sidumo judgment, the commissioner must:
• Take into account the totality of circumstances;
• Consider the importance of the rule that had been breached;
• Consider the reason the employer imposed the sanction of dismissal;
• The basis of the employee’s challenge to the dismissal;
• Consider the harm caused by the employee’s conduct;
• Consider whether training/instruction may result in the employee not
repeating the misconduct;
• Consider the effect of dismissal on the employee;
• Consider the employee’s service record.
52. In Fidelity Cash Management Service v Commission for Conciliation Mediation and Arbitration & others (2008) 29 ILJ 964 (LAC) the Labour Appeal Court held that in considering the totality of circumstances the commissioner would have to answer the question whether dismissal was in all of the circumstances a fair sanction. In answering that question he or she would have to use his or her own sense of fairness.
53. Based on the evidence presented before me, I am of the view that taking into account the totality of circumstances, including the Applicant’s need for assistance in producing required list and mitigating health condition on the 12th March 2018, dismissal is not a suitable sanction in this regard. Further investigation or proper meeting with the Applicant upon his return from the sick-leave after the 12th March 2018, could have revealed true circumstances of the Applicant’s struggle or difficulties in this regard; there was no need for all the unnecessary confrontation and show of force on the 12th March 2018.
54. Procedural unfairness was challenged on the basis of the lengthy period (about 14 months) by the Minister of Higher Education and Training to deliver an appeal outcome in this matter. The appeal outcome letter dated 08 July 2019 from the Minister, Dr BE Nzimande, MP stated:
“Kindly be informed that after careful consideration of your appeal, the application for appeal has been dismissed due to late referral.
“The outcomes of the Presiding Officer are hereby confirmed.”
55. There were no specific reasons or further meaningful explanation provided for such a lengthy delay of about fourteen months, pending this brief appeal outcome. In Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and others  ZACC 3, the Constitutional Court held:
“ Unsurprisingly, the Department puts great store on the fact the applicant suffered no prejudice as she was still gainfully employed during this period. However, the applicant submitted that the delay has had a concrete impact on her disciplinary process: the appeal procedure allows for the MEC to call for a record when a appeal is lodged and invite further submissions. Thus, the fact that the sanction of dismissal was not implemented whilst the outcome of the appeal was still awaited does not detract from the fact that the applicant, in the meantime, faced an uncertain future. This factor had a negative impact on the procedural fairness of the process. All things considered, it cannot be that the arbitrator was reasonable in finding that the applicant’s dismissal was not procedural unfair.”
56. Therefore the first Respondent’s argument that the Applicant’s fourteen months length of delay was significantly distinguished to that of Stokwe (about five years) delay, cannot stand in the face of the above instructive passage from the country’s highest Court. It follows therefore, that the fourteen months’ delay in delivering the briefly outlined appeal outcome in this matter, renders the Applicant’s dismissal process procedurally unfair.
57. With regards to all the factors presented above and guiding legal principles, it is my considered opinion that the employee’s dismissal was procedurally and substantively unfair.
58. In terms of section 193(2) of the Labour Relations Act (LRA), once the dismissal of an employee is found to be unfair the primary remedy is that of reinstatement, unless the employee does not wish to be reinstated, circumstances surrounding dismissal are intolerable, it is not reasonably practicable or unfairness of the dismissal is only due to the employer not following a fair procedure.
59. I therefore order that the Applicant must be re-instated with effect from 08 July 2019 and the amount of back-pay to be paid to the employee for the loss of income over the period of his dismissal will be limited to ten months’ remuneration. The outstanding remuneration withheld from the Applicant by the first and second Respondents during the period pending appeal outcome, to the total value of R127164.26 is also due to be paid to him.
60. To the extent that the Applicant’s dismissal has been found to be both procedurally and substantively unfair, the Respondents have no basis in law to withhold remuneration that would have been duly paid to the Applicant, had it not been for his unfair dismissal. The outstanding benefits amount of R14698.42 is to be paid by the first Respondent (DHET) and R112465.84 by the second Respondent (Northlink TVET College) to the Applicant, as claimed.
61. The dismissal of Louis Titus Carelse was procedurally and substantively unfair.
62. The employer must reinstate Mr Carelse with effect from 08 July 2019, with limited back pay amounting to R310000.00; this back pay amount to be paid to the Applicant by no later than 26 February 2021.
63. The first Respondent (DHET) to also pay Mr Carelse R14698.42 in respect of the outstanding payments (benefits) due and the second Respondent (Northlink TVET College) to pay Mr Carelse R112465.84 in respect of outstanding remuneration due to him, by no later than 29 January 2021.
64. The employee will report for duty on Monday, 25 January 2021 at the Northlink TVET College, Wingfield Campus.
M M Marawu