Case Number: PSES808-18/19LP
Applicant: M Raophala
Respondent: Letaba TVET College
Issue: Unfair Dismissal - Misconduct
Venue: Virtual hearing (Zoom)
Award Date: 11 February 2021
Arbitrator: P Shai
INQUIRY BY ARBITRATOR
Commissioner: P Shai
Case No.: PSES808-18/19LP
Date of Award: 11 February 2021
In the ARBITRATION between:
Letaba TVET College
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard as an enquiry by arbitrator on the 22nd November 2019, 26th November 2019, 3rd March 2020 and 16th November 2020.
2. Both parties were present. The employer was represented by Mr. Benjamin Moshoma, whereas the employee was represented by Mr. LSM Mateta, an attorney from Mateta Attorneys in Tzaneen.
3. The proceedings were digitally recorded.
4. Parties agreed, and were directed to submit closing arguments and mitigating circumstances simultaneously, in the event I find against the employee. The employer party submitted their arguments on time, while the employee submitted late due to alleged illness-I dispatched a notice for them to submit their arguments by a determined date being 3rd February 2021, which was not complied with. When they finally submitted on 6th February 2021, they submitted only closing arguments and I decided to proceed without the employee’s mitigating circumstances.
ISSUE TO BE DECIDED
5. The employer has preferred misconduct charges against the employee, Mrs. Meriam Raophala. I am now called upon to determine whether the employee committed the charges so preferred against her or not.
6. If I find that the employee has committed the said misconduct, I will find her guilty and determine an appropriate sanction for her.
BACKGROUND TO THE ISSUE
7. The employee was employed by the employer as a lecturer in 2004. The employer preferred the following charges against the employee:
It is alleged that on about the 14th July 2014 you have contravened the provisions of Annexure A of the PSCBC Resolution 1 of 2003 clause 29. Falsify records or documentation in that you have misrepresented facts when you submitted a fraudulent academic record to be considered for a post of lecturer at Letaba TVET College.
It is alleged that on about the 14th July 2014 you have contravened the provisions of Annexure A of the PSCBC Resolution 1 of 2003 clause 06. Prejudice the administration, discipline or efficiency of the College in that you have brought the college’s name into disrepute by misrepresenting facts when you submitted a fraudulent academic record and an affidavit affirming a non-existent qualification so that you can be considered for a post of a lecturer at Letaba TVET College.
It is alleged that on about October 2018 you have contravened the provisions of Annexure A of the PSCBC Resolution 1 of 2003 clause 29. Falsify records or documentation in that you have given students marks which cannot be traced back to the source documents (student’s scripts)
It is alleged that on about the October 2018 you have contravened the provisions of Annexure A of the PSCBC Resolution 1 of 2003 clause 06. Prejudice the administration, discipline or efficiency of the College in that you have brought the college’s name into disrepute by failing to adhere to the ICASS Guidelines
It is alleged that during October 2018 you have contravened the provisions of Annexure A of the PSCBC Resolution 1 of 2003 clause 14. Performs poorly, inadequately for reasons other than incapacity in that you have failed to ensure that Life Orientation level 2 students have Portfolio of evidence and also a Portfolio of assessment as the subject Lecturer as instructed by TVET Curriculum Instruction (ICASS Guidelines)
8. The employee pleaded not guilty to all charges.
SURVEY OF EVIDENCE FOR THE EMPLOYER
MR SINKY FRANS SEBELA TESTIFIED UNDER OATH AS FOLLOWS:
9. He is the deputy manager, Human Resource Department at the employer. He is responsible for Labour Relations matters at the employer.
10. Page 13 of bundle A is an application for a job by the employee, Mrs. Raophala. According to the Curriculum Vitae, she obtained secondary Teachers Diploma at Mokopane College of Education. The employee deposed to an affidavit at paragraph 9 that she had applied for the Diploma Certificate at the Department of Education and was told to wait for a period. At page 7 there is a verification report which shows that the qualification cannot be confirmed – inconclusive verification. This meant that the qualification does not exist. The employee was never issued with the qualification.
11. The employer further made verification with SAQA and there was no positive response. With reference to the academic record from Mokopane College of education at paragraph 11, the employer cannot find the certificate to support the record. Further that, with reference to charge 2, the employee acted in a fraudulent manner in submitting the fraudulent academic record.
HE testified as follows under cross -examination
12. He was involved in the drafting of the charges. With regards to charge 1, he testified that the employer asked the employee to submit the diploma certificate but she did not do so. They had received the academic record of the employee but the diploma certificate is still outstanding. He admitted that there is no document, which says she does not have the certificates. The reason why the employer contended that the academic record is fraudulent is because of verification with SAQUA, the diploma could not be verified.
13. The requirement of the position was RQ13 and that the employer needed the diploma certificate to support the academic record. The employee should have submitted it in 2002.
14. He further confirmed that SAQA had indicated that the diploma certificate cannot be verified. It is her responsibility to submit the diploma certificate. When it was put to him that the conclusion by SAQA that the results are pending could not be regarded as having acted fraudulently, he said it is her responsibility to provide the employer with the certificate of her qualification she claims to have. He admitted that charge 1 and 2 amounted to splitting of charges.
15. They did two (2) verifications, through SAQA and one (1) through (MIE), both cannot verify the qualification.
16. The employee later submitted a National Diploma from TVT College, which is at level 14 (RQ 14), which was submitted after the case had started. She submitted it recently.
17. The employee is currently placed at Motjatji campus and at the same level. She is now qualified to be a lecturer.
18. Under re-examination he reconfirmed that on verification they did not get the required diploma certificate. It is eleven (11) years that they have been waiting for the certificate.
MR MOSHE BADWIN MABALE TESTIFIED UNDER OATH AS FOLLOWS:
19. He is a deputy principal in academic services. His duties are to ensure that teaching and learning takes place, he also coordinates internal and external examination and liaison with stake holders.
20. Page 38 to 58 of the employer bundle contains TVET curriculum instructions. Paragraph 8 at page 53 provides as follows:
It is expected of both the lecturer and the student to maintain a portfolio which provides evidence of engagement in class tasks. It is the responsibility of the subject lecturer to ensure that the information in his or her portfolio of assessment (POA) as well as the student portfolio of evidence (POE) is kept up to date. For purposes of the above the teacher must keep the scripts in the POE for about six (6) months after the students had written the examination in case they are needed. If the above is not adhered to it may disadvantage students as they may have incomplete marks, not meeting the minimum requirements for purposes of examination or they may not qualify for supplementary exams”.
Under cross examination he stated that the responsibility of maintaining portfolios of evidence falls on the learner and the lecturer. He confirmed that the employee did not meet the requirements as required.
MS MODJADJI SINA BOPAPE TESTIFIED UNDER OATH AS FOLLOWS:
21. She was acting HOD when the incident came up. She is now the HOD. She was appointed in 2003. Her duties was to oversee different faculties as an HOD, to ensure that all activities are taking place, making sure that the policies are complied with. Her evidence related to charge 3, 4 and 5.
22. With regards to charge 3, a student came to complain that the employee refused to assess her even though she had a medical certificate to explain why she was not there at the time of assessment of others. She alerted the senior lecturer and required the two (2) of them to come to her office. She required the employee to bring along to the lecture her portfolio of evidence. From the lecture file they wanted to check the assessment and the date on which it was done. From the subject file they wanted to check if the student was present when the assessment was done. They also wanted to check if the particular assessment was done or not, in the (POA).
23. They checked the records of all the marks of the assessment for the entire year. It was found that there were three (3) assessments not accredited to the student. It was also found that the student was not present when the assessments were done. The medical report did not correlate.
24. The student was called, and it was put to her that she was not present when the three (3) assessments were done. She acknowledged only one (1). She further said that she did the assessments and that it was given to the employee but that she was refusing to mark it. The student said it was five (5) of them who had the same problem. The employee marked others but refused to mark hers.
25. The student told her that she did not go to the lecturer to ask her for marks. She asked the student to go and request the script, she did not return. The student returned the following morning and reported that the lecturer was not there. When she enquired from the student if she has done the assessment she said she had another story. The story was that no students did the assignment but all got marks except her. She then asked the student to reduce the complaint in writing. Upon seeing the seriousness of the matter she then reported to the authorities verbally.
26. The following day the student came with her parents. An investigation ensued. On that day the employee was not present. The following day she came, and all the portfolios of the six (6) groups that she taught were present. Of the five (5) groups, their portfolios and assessments were in order. The problem was with the sixth (6) group from which the student came from. In this group it was found that all the student’s scripts were missing. The marks were available however. There was therefore no way to compare the two (2). The students alleged that they were given marks without assessments. Under cross examination she repeated mainly her evidence in chief.
SURVEY OF EVIDENCE FOR THE EMPLOYEE:
MRS MERIAM MANYAKALA RAOPHALA TESTIFIED ON HER OWN BEHALF UNDER OATH AS FOLLOWS:
27. She did her matric at Masalanabo High school and proceeded to Mokopane College of Education to do a Secondary Teachers Diploma in 1998 and completed this qualification in 2001. This is the diploma in question.
28. After completion she got an academic record which shows that she has completed the diploma. After this, she registered with Unisa for a Hospitality qualification which is equivalent to RQ13 (National Diploma Business Management).
29. After receiving the academic record for the Secondary Teachers Diploma, she registered with SACE. She did so in February 2007 and the registration is still in existence.
30. When she was appointed as a lecturer, she submitted an academic record and a confirmation letter.
31. She was charged after a student who wanted to cheat came to report her. Later the learner apologized and reduced this into writing.
32. With regard the charge she admitted that a diploma certificate was requested from her but she did not have it. She however submitted a diploma from Unisa and an academic record from Mokopane College of Education. For purposes of obtaining the Secondary Teachers Diploma, she asked the Department of Education, Mr Nyatlo of Mokopane College of Education who referred her to the Department of Basic Education. She was further referred to the University of Limpopo. Still she could not get any assistance.
33. According to an enquiry with SAQA, the results are still pending. According to her, pending does not amount to fraud. She understands this to mean they are waiting for information.
34. The Secondary Teacher’s Diploma is a three-year course; however, she took four (4) years to complete. She insisted that she completed the course.
35. When she was shown that she failed some courses, she testified that she passed them at the supplementary stage. In so far as she is concerned, she has passed the course, authorities are refusing to give her the diploma certificate.
36. When it was put to her that she gave students marks that could not be traced to scripts, she insisted that they could.
ANALYSIS OF EVIDENCE AND ARGUMENTS AND FINDINGS
37. Before I deal with the charges I need to deal with two matters that are raised by the employee in her closing arguments.
-the first one is that there was a ruling by another commissioner in this matter to effect that the matter should go back to internal disciplinary hearing. No such submission was made before me.
-Jurisdictional point-(the employee did not consent to enquiry by the arbitrator).
This matter was not raised as a point in-limine but came out of examination in chief of the employee as she was led in her evidence. I deal with this point as follows:
The employee led evidence that she was called to the office, and instructed to complete the form. She said she did not understand it. She further did not know the consequence of signing the document.
This version was not put to any of the witnesses of the employer. Further that, the employee is a learned person who lectures to students. It is expected of a person in her position to acquaint herself/himself with the content of the document before she /he appends her/his signature to the document. The employee further did not indicate how she was forced to sign the document. I reject her version and conclude that there was no compulsion and that she signed voluntarily.
38. I will deal with each charge separately.
Charge 1 and 2
The employer’s witness conceded that the two (2) charges are related and amount to splitting of charges. I agree with this witness and conclude that they amount to splitting of charges. I will therefore strike charge 2. In this respect, the employer led evidence to show that when the employee applied for the position of a lecturer at the Letaba TVET College, she submitted fraudulent academic records to be considered for the position. The employer further led evidence to the effect that when the employee was requested to submit the diploma certificate to confirm the academic record, she could not do so.
39. The employee on the other hand conceded that she could not furnish the employer with the said certificate because she could not be provided with it by the relevant authorities. The employee testified that she approached the Mokopane College of Education, Department of Education, and University of Limpopo quest in the quest to obtain the diploma certificate which proved fruitless. Further that the employer led evidence that verification through two (2) authorities namely MIE and SAQA could not verify the qualification.
40. The employer argued that the mere fact that the two (2) organizations could not verify the qualification meant that it does not exist and the academic record submitted was fraudulent. The employee argued that this can’t be since SAQA indicated that it is still ‘awaiting feedback from the source’. The employee herself testified that all her efforts to obtain the said diploma failed. It appears further that she had resigned herself to the fact that she would never get the qualifications since she started and completed a new qualification which now qualifies her for the post as it existed in 2004.
41. I am confronted with two (2) contradictory versions against each other, the version of the employer is more probable. The employee has conceded that all authorities could not help her with the qualification. Further that the verification by MIE and SAQA could not confirm the qualification. According to her, she obtained the qualification in 2002 but up to now it could not be verified. Further that, she registered and obtained an equivalent qualification with Unisa, which now qualifies her for the position as it existed in 2002. I conclude that she knew all the time that she did not complete the qualification when she submitted the academic record. The academic record and the confirmation letter are probably fraudulent. I consequently find her guilty on this charge.
Charge 3, 4 and 5
42. The above charges relate to each other as they relate to the incident as described in charge 3, namely: allocating marks to students which could not be traced back to documents source namely the scripts. I therefore strike out charges 4 and 5 on the basis that they also amount to unwarranted splitting of charges. I will deal with charge 3 accordingly.
43. In so far as charge 3 is concerned, the employer led evidence of the supervisor of the employee who testified that following a complaint by a learner that the employee refused to assess her, the matter was investigated. The learner further indicated that there are five (5) of them who had similar problems. She further said that the entire class of students were given marks but had not done any assessment. Only five (5) of them were not allocated such marks. The supervisor further testified that on the day, the employee was not present. However, the authorities required an investigation to be done. Evidence revealed that the employee lectured six (6) classes. The investigation according to the supervisor found that the five (5) other classes had marks which could be traced back to the scripts. However, the sixth 6th class to which the complainant / learner belonged to could not have their marks traced back to scripts which was against the policy.
44. A meeting was held with the employee and the leadership of the school where the above evidence was presented and discussed.
45. The employee in her evidence in chief only denied that the said marks could not be traced back to the scripts but could not substantiate any further.
46. On balance of probabilities, I find that it is highly probable that the employee did not assess students but gave them marks, hence no scripts could not be found, whereas this was not the case with other groups. I consequently find the employee guilty of this charge.
47. The employer listed the followings as aggravating circumstances:
• The college has adopted a policy of zero tolerance to fraud and corruption and takes very seriously cases of non - compliance especially in cases that have the potential to compromise the future of the students.
• The credibility of the government is at stake due to conduct such as the one by the employee.
• The employee has been dishonest about her qualifications for a period of fourteen years.
• The appointment of the employee prejudiced other candidates who qualified for the position whereas she was not qualified and led the employer to believe that she was so qualified.
48. The employee failed to submit mitigating circumstances together with closing arguments in the event that I find the employee guilty on the merits.
49. The employee was found guilty of two (2) charges relating to misrepresentation of qualifications and failure to comply with regulations relating to student assessments. These are serious misconducts which have the potential to compromise the credibility of any institution public or private.
50. The first charge involves dishonesty. It is trite that dishonesty has the capacity to destroy the trust that is the foundation of the relationship between the employer and the employee. Once this foundation, the trust element is destroyed, nothing remains of the relationship. The employee had the opportunity to disclose this misrepresentation. She did not do so for fourteen (14) years. Instead she had to start a new qualification to correct the wrong she knew existed. She has not demonstrated any remorse for the fourteen (14) years. She continued to insists that she has completed the qualification even though she knows there is no proof of that and had in fact abandoned it and registered for something else to make up for the lack of the said qualifications.
51. John Grogan, Work Place Law, Eleventh Edition, Juta, 2014, at page 244 says the following:
“Dismissal is generally justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employers. Thus, a false claim by an employee that she possessed formal qualifications has been held to have irreparably destroyed the employment relationship. “
52. I consequently find that the dismissal is an appropriate sanction in the circumstance. The employee is summarily dismissed.
Commissioner Piet Shai