ELRC 135-20/21GP
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ELRC 135-20/21GP
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Award Date:
31 May 2021
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Panelist: Kuvonakala Pretty Chavalala
Case No.: ELRC 135-20/21GP
Date of Award: 31 May 2021
In the ARBITRATION between:
PSA obo Mashalene Kedibone Vilakazi and 1 other
(Union / Applicant)
and
Department of Higher Education and Training Gauteng
(Respondent)
Union/Applicant’s representative: Mr. Sigudla
Email:
Respondent’s representative: Ms. Mogami- Habedi
Email:
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between PSA obo Mashalene Kedibone Vilakazi (hereinafter referred to as “the applicant”) and Department of Higher Education and Training Gauteng (hereinafter referred to as “the respondent”). The citation refers to ‘and 1 other’ because the case was initially referred on behalf of two applicants, the applicant and one Mr Kgomo. A ruling was issued to separate the matters of the two applicants. This award is only in respect of PSA obo Mashalene Kedibone Vilakazi. The hearing concerned an alleged unfair dismissal dispute. The hearing was mainly conducted physically. It was conducted virtually in respect of the testimony of one witness of the applicant. It sat on several occasions and was finalised on the 06 May 2021.
[2] The applicant was represented by Mr Sigudla from PSA. The respondent was represented by Ms Mogami-Habedi from the respondent.
[3] The respondent submitted 5 bundles of documents which were marked Bundle A, B, C, D and E. The applicant submitted a bundle which was marked Bundle V.
[4] On the last day of the hearing, parties could not immediately submit their closing arguments and they requested to submit written arguments. I granted the request and allowed parties to submit written arguments on or before 14 May 2021. On 14 May 2021, I had received both parties’ closing arguments.
[5] The hearing was held in English and it was digitally and manually recorded.
ISSUES TO BE DECIDED
[6] I am required to decide whether the dismissal of the applicant was procedurally and substantively fair and, if not, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[7] The applicant was employed by the respondent effective from 01 January 1998. She was holding a position of a Senior Lecturer with persal number 10480153. Dismissal was the recommended sanction by the chairperson on 23 September 2019. The appeal outcome confirmed dismissal in August 2020. She lodged the dispute with the ELRC on 07 August 2020.
[8] The applicant was charged with 5 counts of misconduct. She pleaded not guilty to the charges. The alternative charges were withdrawn, and she was not required to answer them. The applicant was found guilty on all charges. The charges were formulated as follows: -
1. Charge 1: Contravening marking guideline for National Certificate intro Computer Practice
Contravening the above in that during the 1st semester of 2018, at or near Soshanguve South Campus, while marking the scripts for Intro Computer Practice Mini Examination (task 3) you marked the students’ scripts without having complied with the marking guideline for National Certificate Intro Computer Practice N4.
2. Charge 2: Refusal to carry out a lawful and reasonable instruction.
You are hereby charged with a serious act of misconduct for refusing to carry out a lawful order or routine instruction without just or reasonable cause in that during the 1st Semester of 2018, at or near Soshanguve South Campus you did not submit your subject file and assessment file for Intro Computer Practice N4 in line with Section 9 and item 9.1 of the Internal Continuous Assessment (ICASS) guideline for report 191 Programmes and as instructed by the Campus Manager Mr Nkabinde
3. Charge 3: Dereliction of Duty
You are charged with dereliction of duties in that on or around the 1st Semester of 2018, at or near Soshanguve South Campus, you failed to execute your supervisory duties and as a result your subordinate, Mr Mdluli, lecturer failed to mark the students’ scripts for Computer Practice N4 and submitted fraudulent marks.
4. Charge 4: Dereliction of duty
You are charged with dereliction of duties in that on or around the 1st Semester of 2018, at or near Soshanguve South Campus, you failed to execute your supervisory duties and as a result your subordinate, Mr GH Mokopakgosi, lecturer, submitted mark sheets with marks of students differing from the marks allocated in the answer scripts (information Processing N5) and also for giving students tests and or mini exam that did not cover 50% of the work required.
5. Charge 5: Dereliction of duty
You are charged with dereliction of duties in that on or around the 1st Semester of 2018, at or near Soshanguve South Campus, you failed to execute your supervisory duties and as a result your subordinate, Mr Kgomo, Lecturer failed to mark the students’ scripts for Intro Information processing N4 and submitted fraudulent marks.
[9] The following were common cause issues: -
a) Date of employment, position, and the date of dismissal.
b) The chairperson recommended the sanction of dismissal in September 2019. The applicant lodged an appeal and received an appeal outcome in August 2020.
c) Applicant was given a notice to attend disciplinary hearing. The charges were clear, her rights were explained, she was given time to prepare her case, she was given a chance to question witnesses that were called, and she was advised of the outcome of the disciplinary hearing.
d) The applicant was responsible for overseeing a unit of 7 junior lecturers teaching Computer Subjects.
e) Regarding charge 1, it is common cause that it is the applicant who marked scripts for intro Computer Practice Mini-Examinations (task 3). There is an existing marking guideline for National Certificate Intro Computer Practice. The marking guidelines were not complied with.
f) Regarding charge 2, it is common cause that there was an instruction to all 21 lecturers by campus manager Mr Nkabinde.
g) Regarding Charge 3, it is common cause that Mr Mdluli was a subordinate to Ms Vilakazi. Mr Mdluli submitted the scripts to the requester for Computer science Practice N4.
h) Regarding Charge 4, it is common cause that Mr Mokopakgosi was a subordinate to Ms Vilakazi. Mr Mokopakgosi submitted the scripts to the requester for Computer science Practice N4.
i) Regarding Charge 5, it is common cause that Mr Kgomo was a subordinate to Ms Vilakazi. Mr Kgomo submitted the scripts to the requester for Computer science Practice N4.
j) The applicant had a clean disciplinary record.
[10] The following were issues in dispute:
a) There was justifiable reason for the applicant’s failure to comply with marking guidelines.
b) That the applicant refused to carry out instructions.
c) That there was a misunderstanding of what was required by the campus manager.
d) That the applicant failed to execute her supervisory duties.
e) That the respondent acted inconsistently in applying discipline as two other lecturers who should have been charged for charges 2,3,4 and 5 were not charged.
f) Harshness of the sanction
[11] The applicant sought retrospective reinstatement as a relief.
SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT
This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.
Respondent’s case
The respondent called four witnesses who testified as follows:
First witness: Sphiwe Nkabinde who testified under oath and the summary is as follows:
[12] He is employed by the respondent as a Campus Manager at Soshanguve South Campus. He has been with the education department since 1998 and gave an overview of his employment history. His role as a campus manager requires him to ensure that the entire campus is properly administered in all its different units. The academic unit is the core business of the institution and all other units are supportive in nature. In broad terms, his role is to ensure that teaching and learning properly takes place.
[13] The applicant was a senior lecturer at the campus. In terms of the organogram, the applicant reports to the HOD and the HOD reports to him. The lecturers report to the applicant. The senior lecturer is responsible for heading a certain division. As a senior lecturer, the applicant was responsible for ensuring that the timetable is complied with; ensuring compliance with the ICASS guidelines and that lecturers are preparing questions and memorandums. They are responsible for pre and post moderation and verification. She must ensure that lecturers have the files as stated in the ICASS guideline.
[14] The HOD and the campus manager must also do moderation.
[15] He arrived at the campus in May 2018. It was already exam time. After exam qualifying marks are submitted to the Department of Higher Education and Training (DHET), a declaration must be signed by the campus manager declaring that the marks are indeed correct. Before signing the declaration, he must verify the marks. He wrote a letter to the HOD Mr Mekoe requesting submission of subject files. He did not get any reply. He then wrote a letter to the senior lecturers as appears on Bundle A page 19 requesting the memoranda and question papers and he never got a response. School closed and when they reopened, he wrote a letter to the senior lecturers as per page 20 of Bundle A. he never got any response from the applicant. This according to him resulted in insubordination. He resorted to asking the lecturers directly for the files he had requested, and they submitted. He perused the scripts in order to moderate. He discovered that the lecturers had not marked the scripts. The applicant had also not marked the scripts. The marks allocated for students were thumb sucked and were fraudulent.
[16] He then wrote a letter to the principal explaining his findings as per page 11 to 12 of Bundle A. The principal required a response from the applicant and the applicant replied as per page 9 Bundle A. The response of the applicant is nothing but a lie. He never sat with the applicant and the other senior lecturers to collude on compromising ICASS guideline. The agreement said to have been reached in this meeting is corrupt and contradicts the policies of the DHET and he would not risk his job by agreeing to such a corrupt arrangement. The meeting of the 06 June 2018 never happened, if it had, he would be having minutes as he always keeps a paper trail.
[17] Bundle D is an ICASS guideline and every lecturer and or manager and institution must comply with the ICASS guideline. Clause 9 of the ICASS guides on what must be included in lecturer’s files. The lecturer must keep a lecturers subject file, lecturer’s Assessment file and Portfolio of evidence as stipulated in the ICASS guideline.
[18] His request to the HOD, Senior lecturers and subsequently the lecturers was urgent and that is why he stipulated the time frames of submission. His letters are even clear as to why he requested the information. Firstly, it was in order to ensure compliance with ICASS and secondly to prepare for MOP up as he had about 70% pending results. When there are pending results, the DHET requests for Scripts, the register, mark sheet, question papers and memorandum to demystify the reason of pending results.
[19] According to ICASS Guidelines for Report 191 Programmes, at least three tasks must be administered, to wit, test 1 (task 1), Assignment (Task 2) and Mini Exam (task 3). Task 1 contributes 30% toward final exam mark, task 2 counts for 20 % and task three counts for 50 % towards final exam mark. The students must know their year marks before they sit for an exam.
[20] In the event institution has lost teaching and learning time due to strikes; a catch-up plan must be developed in order to cover the loss. He was briefed about the 5-week loss of teaching and learning and such loss does not exonerate the applicant’s failure to mark. A catch-up plan had to be established to salvage the loss of time.
[21] He believes the applicant is guilty of charge 1 because she had not marked the scripts. There is a National Policy Guideline on how to mark Computer Practice and Information Processing. She had only marked with a red pen and no blue pen. He has a bit of information on how to mark Computer Practice and he easily picked up that marking was not done according to the guideline. Page 50 of Bundle A is an example of a script of a student who got 100% but one cannot see on the script how that was achieved. On the ICASS record sheet on page 170 of Bundle A, the same 100% appears on the student’s marks submitted to the DHET. Page 88 to 102 is another example on Mathye A, a student whose script was not marked but given thumb sucked marks. This behaviour was seen across all scripts. This is clearly preparing students for failure and it is a deception to students and thus affects the quality of the students produced by the college. These fraudulent marks bring the College’s name into disrepute. Teaching is a labour of love; one must be able to love students enough to teach and correct them. Otherwise, one would be dooming them for failure.
[22] He believes the applicant is guilty of dereliction of duties in failing to exercise her supervisory duties over her subordinates. The applicant is expected to do pre-moderation. This includes that she must check questions to ensure they comply with bloom’s taxonomy. She is also expected to do post moderation. This includes that she checks the student’s answer scripts because one cannot verify without the scripts. She had to ensure that marks are recorded and send them to HOD for post moderation. Page 8 to 9 of Bundle D, clause 7 of the ICASS guideline is very clear on moderation of tasks. It addresses why, what, and how to conduct moderation. Had the applicant done this, she would have discovered that the lecturers had not marked the scripts. The senior lectures are given less hours for classes as opposed to lectures in order to afford them an opportunity to do the supervisory roles.
[23] Mr Mdhluli, the applicant’s subordinate never at all marked the scripts of his students that he was teaching Computer Practice N4. He just allocated marks. Mr Mdhluli first ducked and dived when he was requested for scripts but ultimately submitted. He asked the applicant and the HOD why Mr Mdhluli had not marked the scripts and they referred him to Mr Mdhluli’s personal problems. The marks that were given to the DHET in the ICASS marks sheet were thus fraudulent, corrupt and thumb sucked. Page 8 to 24 on Bundle B are the examples of the unmarked scripts in this regard. Mr Mdhluli was charged as per page 2 to 6 of Bundle B, but he decided to resign as per page 7 of bundle B.
[24] Mr Mokopakgosi, the applicant’s subordinate also did not conduct task according to the ICASS guidelines. He gave students only one task and regarded question 1 as task 1, questions 2 as task 2 and question 3 as task 3. The examples of those scripts are on page 136 to 146 of Bundle B. It is not even clear how the students got the percentages that were allocated to them. Fraudulent marks were then recorded on the ICASS marks sheet and submitted to the DHET and there is no relationship between the scripts allocated marks and the mark sheet recorded marks.
[25] Mr Kgomo, the applicant’s subordinate also did not mark intro for Information Processing. As appears from page 60 of bundle B, a student was given 40 % and the assessment was not marked. Page 60 to 80 of bundle B are some of the examples of the scripts. On page 96 of Bundle B which is the ICASS mark sheet, the weighting of the task was also done wrongly. Task 1 should count for 30 % while task two should count for 20%. Mr Kgomo weighted task 1, 20% and task 2, 30 %. It is not clear how marks were reached. There is no policy that states that 40% must be given for a late assessment. Mr Kgomo was charged, he attended the hearing and was dismissed.
[26] If the loss of 5 weeks teaching and learning was an issue, other Senior Lectures should have suffered the same fate, but they did not, they did their work.
[27] The trust relationship between the applicant and the respondent is totally broken down into pieces and it can never be repaired. During the disciplinary hearing, the applicant did not even go to class and other lecturers had to assist. The HOD also got a ‘love letter’ for dereliction of duties and he resigned on the eve of the hearing. He had sent letters requesting files from other Senior Lecturers as well. The process is still ongoing and labour is handling that issue of insubordination. The other senior lectures had marked their scripts.
[28] He never saw the task team preliminary report that appears on page 74 to 81 of Bundle V. He was reporting to the Central office from September 2018 to December 2018 and Ms Maja acted at the campus as an overseer. He believes that the report was done during that time and he cannot comment on it. No hand over was done when he returned to campus.
Cross examination
[29] He was not so well received when he arrived at Soshanguve South Campus. Some staff members wanted him to go back because he was ‘the principal’s person’. He was told he would be the 5th campus manager to be dismissed. The people who were championing the rejection were Themba Baloyi, Lebello Alfios, Sithole and Sedimela. They wrote a memo for his removal and most lectures signed including the applicant. He was once held hostage by some lecturers who were demanding the scripts back, he cannot recall if applicant was part of those.
[30] He started at the campus in May 2018 which was on the eve of submissions, so he had to start with preparing. He did meet with the HOD around May 2018 and also for staff introductions. He has no minutes of that meeting, but one would not be able to arrive at an institution and just start working without meeting people.
[31] He denied attending the meeting of the 6 June 2018, he would not have attended a meeting and resolved on corruption. According to him, senior lecturers are lying against him. Given the relationship and the environment at Shoshanguve South, it became imperative for him to keep a paper trail. He had realised he is working with back-biters.
[32] He stated that the ICASS guidelines is like their bible, they must live and act by it. It gets reviewed yearly; one cannot operate outside the ICASS guidelines. He is not responsible for requesting extensions from the department, but the principal is. The senior lecturer is part of management and she must know the guideline to do her work.
[33] The applicant does not directly report to him but to the HOD. However, nothing stops him from sitting with the applicant to question about an issue of concern. But given the fact that the relations were tense between him and the lectures and the tight time frames, he did not utilise that approach. He rather communicated with HOD, Mr Mekoe. As he knew he was not wanted, communicating via paper tail was the best method according to him.
[34] On whether the other Senior Lecturers had been charged all he can say is that he has not received any documentation from labour, labour must answer as he has no evidence.
[35] When the Senior lecturer post moderates, she only has to sample at least 10% of the scripts with a green pen.
[36] When he arrived in Shoshanguve South Campus, he was surprised that some students were failing intro but progressing to N4. The department recognises intro subjects very much. Almost every course has an introductory subject.
[37] He conceded that the applicant arrived at the campus in January 2018. He stated that she knew the processes as one does not use feelings to do their duties but policies. She knew she had to mark and moderate. He was also new at the campus in May 2018, but he still had to do his job according to policies.
[38] Pre and post moderation should have happened a long time ago and he denies that the applicant failed to do them because her subordinates had submitted scripts directly to him. When he arrived, it was at the time when results were required. The moderation is supposed to happen on a task-by-task basis since the tasks are not conducted simultaneously. The applicant should have moderated the scripts long ago before he even requested them. Even the HOD and campus manager are ideally supposed to moderate on a task-by-task basis.
[39] He stated that he could not answer on whether the applicants were taken through the ICASS guideline in January 2018 as he was not there, he can only say that is practice doing so. ICASS guidelines have been in place since the invention of TVETs. All lectures receive the ICASS templates yearly.
[40] Senior lectures submit assessment plans to HOD. HOD submits same to Campus Manager. Campus manger submits to Deputy principal (Academic) who then formulates a campus plan.
Second witness: Maria Helena Munro du Preez testified under oath and the summary of which is as follows:
[41] She is employed by the respondent as a deputy Campus manager Academic. She has 25 years’ experience as an examiner and moderator. She is a committee member of the irregularity Committee for Computer Subjects.
[42] She formed part of the committee that drafted the Examination Instructions No 13 of 2004 as appears on Bundle C. These instructions show exactly how to mark Computer Subjects tasks. Page 5 of Annexure 2 of Bundle C stipulates how marking Computer subjects must be done. To name but a few, spelling error is marked with Red pen and a slash. Display error is marked with a Blue pen, a cross and a number representing the error. If for example, the margins are incorrect, the number next to the blue pen and a cross will be ‘1’; if paper size is incorrect, the number will be ‘6’. There must also be a rubric for each question.
[43] All scripts must be marked according to the guidelines. Page 50 to 61 of bundle A is a script of a student Matswiki Tebogo. This student got 100% according to the applicant. There are already several errors that she can point out. The witness pointed out the errors page by page from page 50 to 61. She does not understand how the student got 100%. The script was not marked according to the guideline and most questions were not marked. She pointed out errors for the script of Mathye A on page 88- 102 of Bundle A. the applicant only marked 5b and yet did not mark it according to the guideline.
[44] The applicant’s subordinate, Mr Mdhluli also did not mark scripts as appears on page 8 to 20 of Bundle B. It is the responsibility of the Senior Lecturer to ensure scripts are moderated, that is the only way of ensuring that lecturers are marking scripts.
[45] If a student were to complains about their marks and requests a remark or that their results are pending, the campus would be required to provide that DHET with marked scripts. Failure to mark disadvantages the students because they got marks, they did not deserve and they would think that they know the subject while they do not.
[46] Page 50-58 of Bundle B is an example of the script for information processing. Mr Kgomo Clearly did not mark the script but gave 40 %. 40% is not a true reflection, the student could have gotten less or more. If the student could not write, they should submit proof justifying absence. If they do give satisfactory proof, they will be afforded a chance to write, if not they should get Zero.
[47] In the event scripts are submitted and are unmarked, she gets called to mark the scripts because scripts must be marked. If scripts are not marked according to guideline, then those scripts are not marked.
[48] One is not allowed to only roll out 1 assessment. ICASS is clear that 3 tasks must be done.
Cross examination
[49] An exam specialist is really someone who has been teaching a subject for a few years.
[50] Introductory subjects are very important, they are not bridging courses. She cannot answer why the students were progressed in Soshanguve even after failing the introductory subjects.
[51] All campuses are bound by the same marking instructions, it is not true that every campus will have its own policy on marking.
Third Witness: Selaelo Sebetlene testified under oath and the summary of which is as follows:
[52] He is the Deputy Principal responsible for academic services. He is responsible for all curriculum related activities. He joined TVET in 1997 as a lecturer and grew through the ranks to Deputy Principal. He joined the campus in September 2018.
[53] ICASS is a policy from DHET. It is clear from ICASS what the obligations of every lecturer in terms of files that must be kept and what should go into those files. An instruction to submit any of the contents of any file is clear and it is reasonable. Any academic manager, i.e. principal, deputy principal, campus manager or HOD can request documents in order to check compliance with ICASS and that teaching and learning is taking place the way that it should be.
[54] The senior lecturer is in the first line of academic management, followed by HOD, Campus manager and himself. As fist lime academic managers, it is the senior lecturers’ responsibility that ensure that curriculum delivery takes place effectively at the campus. That is why their allocated teaching periods are less than those of lecturers.
[55] Academic Board and DHET require proofs of compliance with ICASS. Failure to implement ICASS would bring the qualification to disrepute as it becomes compromised one way or the other.
[56] The senior lecturer must develop an assessment plan in her division. Such a plan will inform the campus plan and the academic plan. She must ensure that tasks are moderated. She can identify moderators within the program. She must ensure that marks that are captured are correct. The moderator does not take away the responsibility of the senior lectures. The moderator moderates and senior lecturer verifies. One verifies by checking if marks on the answer sheets comply with those that are in the mark sheets. In case where scripts are not marked, verification was not done. Moderation and verification must take place after each task. This helps to assess student performance by identifying areas of struggle for students and factor that area into teaching and learning. The senior lectures must check if work of lecturers is up to date. Moderators do not have line authority and cannot charge lecturers for not doing their job.
[57] All academic line managers, including himself, are expected to sign a declaration that marks submitted are genuine. He may go to campus to sample the scripts even if campus manager has signed a declaration to satisfy himself of the authenticity. Signing a declaration has serious repercussions and one would do best not only to rely on what is presented but also conduct sampling. There is absolutely nothing wrong with any academic manager requesting the documentation.
[58] Non marking of scripts is a very serious misconduct. The stakes are just too high. If non marking was ever brought to media, no parent would want to register their child with such an institution. There are a lot of resources poured into colleges by the government as part of building skills and non-marking of scripts wastes those resources. All cases of non-marking were subjected to disciplinary action and while others were dismissed, others elected to resign.
[59] The misconducts that the applicant is charged with are gross. Policies and processes need to be adhered to. The institution cannot afford to be seen perpetuating this misconduct and as such reinstatement is not an option. This is not just for the college but also for the country. The college owes the country well skilled people who will contribute positively to the economy. All role players should be confident in the college’s qualification and the applicant compromised it.
[60] He joined the college in September 2018 and there was disruption in Soshanguve South Campus. He went there to try and deal with issues. One of the resolutions he made was to temporarily remove the campus manager from the campus in order to restore teaching and learning and staff were happy about that. He then sanctioned an investigation around end of September 2018 and Ms Maja was the chair. Ms Maja signed the report on page 74 of Bundle V.
Cross examination
[61] There are embedded qualities in any position. A teacher is expected to know inherent requirements of teaching. His approach on a non-compliance with responsibilities would depend on the nature of the non- compliance. A teacher knows that they must teach, mark and give feedback and that is basic. Assistance can be offered on the question of methodology maybe but not the inherent fundamentals of the position.
[62] ICASS guidelines do not change but are merely revised on a yearly basis. The College bears the responsibility of training lecturers of ICASS. HOD or even Senior lecturers can train them. He does not know if the lecturers were trained in 2018 but every lecturer must have ICASS guideline whether they are trained or not. The lecturer must have the guideline in order to ensure compliance.
[63] Senior lecturers are the ones to develop an assessment plan. Senior lecturers manage a program, HODs manage a division and Campus managers manage the campus. The campus fosters the plans of the program and cannot impose a plan on the lecturers. Campus plan encapsulates when tasks will be administered, who will set and moderate, when will campus close and open and all activities of the campus.
[64] Most unrest will affect teaching and learning and that is why there must be contingency plans after the unrest to compensate for the time lost. Unrest cannot be the reason for failure to comply with policy. They can request delayed submission of marks from the DHET not assessment and resulting.
[65] It would be acceptable for the applicant to have 5 periods because her teaching hours range from 15 hours to 18 hours.
[66] It would not be possible to intervene and try to correct the non marked scripts at the stage Campus manager requested the scripts as marks were already submitted to the DHET
[67] He has not received any documentation to the affect that Mr Sekati or Ms Moremi were charged.
THE APPLICANT’S CASE
The applicant, Mashalene Kedibone Vilakazi testified under oath and the summary of which is as follows:
[68] She started at Soshanguve South Campus in January 2018. She reported to Mr Mekoe and she had 7 subordinates reporting to her.
[69] When she arrived, they had 5 computer rooms and they had to share the rooms. She was initially given 3 groups but the need arose for her to take on more groups as students would not have lecturers. She ended up having 5 groups instead of 3 groups and each group has about 30 students.
[70] It happened that there was student unrest and they fell behind with teaching and learning, monitoring and verifying. She and the other senior lecturers, Ms Moremi and Mr Sekati agreed that since it was almost time for internal exam, each lecturer will give his or her own tasks.
[71] When she gave the mini exam task, the students had to write in two different classes at the same time. She had to move in and out between the two classes for the three-hour long paper. The students finished writing and some computers were not printing. She had to save their work on her USB to print later on. When she was transferring the student’s work to her USB, she realised that some other student’s work which was similar to the mini exam was already in the computer. She found that it was same work with different names. This was an irregularity because the students had copied the works of other students already done by other lecturers. She then decided she would only mark the excel question since she had not covered it well in class the scripts were many and that lead her to marking not according to guidelines in red and blue pen. She took the excel marks and put them in the marksheet and gave it as a term mark. Mr Mekoe would have been the person to monitor and verify her work. She did not submit to Mr Mekoe but to campus manager since he requested the scripts.
[72] When she and the other senior lectures verified the marks, they only looked at the marksheet of the lecturer and that of the DHET to check if they were the same because the campus manager had the scripts. After submitting the scripts, the campus manager never sat with her to talk to her. She submitted the scripts around May 2018.
[73] She received the memo on page 19 of Bundle A. They were busy with exam and they told the campus manager that they are busy invigilating and requested pardon.
[74] On page 19 of Bundle A, she understood that he required test 1, assignment and mini exam scripts and she complied with the instruction. She also understood page 20 of Bundle A and she submitted all tasks, copy of mark sheets, spreadsheets. She does not remember when she submitted. There is a route form that they normally would sign for receipts and submission at the campus but when the documents were submitted to the campus manager they were not given the form to sign. They were just told to put the scripts in his office.
[75] Exam ran as normal and school closed. After they reopened, she got a letter from the principal alleging that they had submitted falsified marks. The three senior lecturers each received their letters. They then sat and responded together to the principal.
[76] She did interact with her subordinates verbally to check how far they are with the work although it proved to be difficult at times because of unrests and lock outs. After her subordinates submitted the scripts to campus manager, she was not called by the campus manager to give her feedback.
[77] The campus manager held a meeting with them on 06 June 2018 with all senior lecturers, NCV and finance and. He wanted to know the status of business studies personnel. He wanted to know about the status of each department. She is surprised that he denied this meeting. Mr Nkabinde’s secretary was taking the minutes of the meeting.
[78] She wants retrospective reinstatement as a relief.
Cross examination
[79] She conceded that the letter on page 19 of bundle A was clear that question papers and memoranda were required. She conceded that she submitted scripts which were never required in terms of the letter on page 19.
[80] She submitted scripts before schools closed in June 2018. She could not state what had prompted her to submit the scripts. She conceded that the letter on page 20 written in July 2018 is the one that requires scripts.
[81] The focus was on enrolment when they reopened. She was under pressure to focus on pending results. They struggled with pending results because scripts were in Mr Nkabinde’s office as scripts would at times be required to cure pending results.
[82] The campus manager has the authority to request scripts or any other documentation.
[83] She accepts that she did not mark the scripts according to the rules. All she can say is there was a lot of pressure at the campus at that time. She agrees that the marking that was not done according to standard compromised the quality.
[84] It was put to her that she never mentioned the irregularity of students coping and that it would not be possible for her questions to be similar to another lecturers. She indicated that sometimes they use old question papers and questions may be the same. It is allowed to use past questions but it is discouraged.
[85] She confirmed that not all her subordinates were charged but she could not confirm they had marked correctly. She did not see her subordinates’ scripts and sated that time did not allow since there were lot of time lost due to unrests.
[86] Looking at the scripts, page 8-12 of bundle B, she cannot say what informed the 64% that the learner got. She would have picked it up if monitoring had been done.
[87] She could not sate what common charge she thought she had with the other lecturers, just that they all received fact finding letters.
[88] She believes that the trust relationship with the respondent is not broken down because the allegations are for first semester 2018 and she continued to work until 2020 and that shows that there was a lot of trust.
[89] She stated that the 5-week loss of learning was not a consecutive period, unrests would happen in different intervals.
[90] There is no policy when a student copy/plagiarise, the lecturer must just do what is best for him or her. She discovered the plagiarism in more or less 10 scripts.
Second witness: Humphrey Abner Sekati, who testified under oath and the summary of the evidence is as follows
[91] He is employed at the Soshanguve South Campus and is currently holding a position of an education specialist commonly known as a senior lecturer. He has about 6 or 7 subordinates reporting to him.
[92] Shoshanguve south was in a crisis situation in 2018 in relation to students and management. There were unrests and they lost a lot of teaching and learning time and there was no stability of management.
[93] The campus manager Mr Nkabinde convened and held a meeting on 06 June 2018 with senior lecturers. He wanted to know progress as they were approaching exam. It is strange that he would deny existence of the meeting because he was its convener.
[94] He received a letter similar to Page 19 of bundle A. He submitted scripts and ICASS marksheets to the campus manager. To date, he has not been charged.
[95] The issue of non-marking of scripts is not rife at all. Non marking is a very serious misconduct and he has never come across it in his department.
[96] The circumstance at the campus in 2018 put them under a lot of pressure. He does not encourage cutting corners but it became difficult to comply with each and every requirement due to unrests and non-stability of management. He is also a firm believer in corrective action, and he considers it best to correct than to try and make an example of someone. It was near impossible to monitor everything accordingly.
Cross examination
[97] His understanding of the reply letter on page 11 Bundle A was that they had said they would start on a clean slate the following semester as marks had already been sent to the Department.
[98] He only recalls the senior lecturers for report 191 as attendees of the 06 June 2018. He cannot recall how the meeting of the 06 June was called.
[99] He does not recall submitting question papers and memoranda to the campus manager. He remembers submitting scripts and marksheets. He was not being defiant but merely prioritising. They were busy with exams at the time the information was required so he viewed the exam as priority.
[100] He insisted that non- marking is a serious misconduct and not marking according to guidelines can be corrective. This depends on the extent of non-compliance. He stated that if a lecturer had decided to mark only one question in the answer scripts of learners, he would deem it as a big case especially if it was deliberate.
[101] The campus manager had the right in his position to request for the documents he requested.
[102] He was monitoring his subordinates but not by the book. In his section, he did not have any lecturers that did not mark
ANALYSIS OF EVIDENCE AND ARGUMENT
[103] In terms of section 192(1) of the Act, the employee bears the onus to prove the existence of dismissal. The existence of dismissal was placed out of issue because the respondent confirmed that the applicant was dismissed.
[104] In terms of section 192(2) of the Act, if the existence of the dismissal is established, the onus rests on the employer to prove that the dismissal is fair. In terms of section 188 of the Act, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity.
[105] The procedure followed for the dismissal was challenged by the applicant on the basis that the chairperson did not communicate the final outcome within 5 days of the conclusion of the hearing. it was argued that this was in violation of PSCBC Resolution 1 of 2003 clause 7.3(o). Further, her appeal was not finalised within 30 days from the day it was lodged, and this was in violation of clause 8.8 of the same Resolution.
[106] It was argued on behalf of the respondent that the applicant did not suffer any prejudice and she stood to benefit because she received her full salary as a normal employee. Further, the same Resolution prevented the respondent from effecting the dismissal while the employee has lodged an appeal.
[107] It can be easily gleaned from the facts and the documents that the appeal time limits were not complied with by the respondent. Regarding the outcome, no sufficient evidence was presented by the parties as to when the disciplinary hearing was finalised. Both parties argued that the outcome was issued on 16 September but are not clear on when the hearing was finalised. In her arguments, the applicant stated that the case was finalised on the 29 July 2019. Turning to the documentation, page 1 of Bundle V indicates that the disciplinary hearing sat on 02 September 2019. The respondent indicated that the case was concluded on 12 September 2019. Both parties did not present conclusive testimony on the aspect of when the hearing was concluded.
[108] It should be noted that my call goes beyond checking time limits compliance. I must over and above the time limits compliance assess the prejudice that was suffered by the applicant if any. In my view, it only was to the applicant’s advantage because she stayed on as an employee for longer than she would have if not for the appeal that delayed. The recommendation of dismissal was made on 23 September 2019 and the appeal only confirmed it in August 2020.
[109] Further, the minimum requirements for procedural fairness have been met. I am guided in this regard by the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC) where it was held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.
[110] It is my finding that the non-compliance with the time limit for appeal was not procedurally unfair towards the applicant as there was no prejudice suffered. The dismissal was procedurally fair.
[111] I now address the question of substance.
[112] In terms of Schedule 8 of the Code, anyone determining the substantive fairness of a dismissal must determine: -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether—
(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; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
[113] It is not necessary for certain rules to be written more especially if they stem from common law. For an example, even if the company code does not state ‘do not steal’, every employee is aware of the fact that they may not steal. Most of the charges that the applicant was charged with stem from common law rules. She was charged with insubordination and dereliction of duties. The employee has a common-law duty to act in good faith towards the employer. Acting in good faith towards the employer is a rule that arises out of common law and it is so well established and known that it is not necessary to write or communicate them. This rule is broad enough to encompass a requirement not to derelict duties and to be subordinate to the employer. It is my finding that there was a rule which is inherent in every employer-employee relationship, this rule is valid, and the applicant is aware of it. The other charge related to not marking according to guidelines. The applicant did not deny existence of the guideline, her awareness of it and its reasonableness. I accordingly find that there was a rule in relation to marking, it was reasonable and the applicant was aware of it.
[114] The next question that arises is whether the applicant breached the rules. I now address the charges and analyse the breach or not thereof.
[115] Charge 1: Contravening marking guideline for National Certificate Intro Computer Practice.
[116] The applicant admitted that she did not mark according to guidelines. She proffered a justification. Effectively, the applicant argued that there are good grounds that should justify her escape from liability for non-compliance.
[117] The applicant stated that the mini exam had been compromised because some students had copied plagiarised the work of other students. She then decided to mark one question that related to excel since the students had not covered it adequately.
[118] She did not deny the version of Ms du Preez who testified that even the section marked was not marked according to the guideline.
[119] I find that the applicant’s justification is not reasonable to entitle her to escape from liability. The applicant could identify the students who had plagiarised but decided not to mark the scripts of all the students. The applicant’s witness testified that non-marking is a very serious misconduct. He stated that non-compliance with marking guidelines is something that according to him could be corrected. When it was put to him that the case of the applicant was that she had decided to mark only one question, even he said that such a case is big more especially if it was deliberate. The applicant stated that it could happen that lecturers have similar questions if they took questions from previous question papers. She said it was allowed but discouraged that they use questions from previous question papers, yet she did it. She conceded that her actions compromised the quality of the qualification. She decided to cure the students’ wrongdoing by committing a wrongdoing herself while there were other right ways that she could have utilised. I accordingly reject the applicant’s justification. It is my finding that the respondent has proved on balance of probabilities that the applicant is guilty of Charge 1.
[120] Charge 2: Refusal to carry out lawful and reasonable instruction
[121] The applicant submitted firstly that the instruction was not clear and secondly that she was time constrained, and they were busy with exam. The applicant stated that she submitted scripts as required in May 2018.
[122] Looking at the letter on page 19 of Bundle A, dated 21 June 2018, I am not clear as to what was so confusing about the letter. The applicant did not point out to me what was so unclear about the letter. The letter is simply requesting question papers and memoranda for all tasks. It is my finding that the instruction was clear and the applicant understood the instruction.
[123] Regarding the time constraints defence, the applicant stated that they were busy with exams and they could not just leave that to submit files to the campus manager. This was corroborated by her witness Mr Sekati who stated that they were rather prioritising as opposed to being defiant.
[124] The scripts were requested on the letter on page 20 dated 10 July 2018 together with other documents. The applicant testified that she submitted the scripts in May 2018. Of most importance and interest to me, the applicant could not state what had prompted her to submit the scripts in May 2018.
[125] The respondent’s version is that the scripts were requested when the institution reopened in July 2018. Mr Nkabinde testified that he never got the scripts from the senior lecturers after the letter on page 20 of Bundle A. He only got scripts after directly requesting them from the lecturers seeing there was no response to his letter. This could only have been after 10 July 2018. As will become clear, in order to proffer the defence for charge 3, 4 and 5 the applicant had to state that the scripts were submitted in May 2018.
[126] It is my finding that the instruction was clear and the applicant did not comply with the instruction.
[127] Insubordination as a class of misconduct, has been advanced by John Grogan that the enquiry into the gravity of the specific insubordination considers three aspects: the action of the employer prior to the deed, the reasonableness of the instruction, and the presence of wilfulness by the employee. Relying also on the authority of Grogan in the case of TMT Services and Supplies (Pty) Ltd V Commission for Conciliation Mediation and Arbitration (JA32/2017) delivered on the 18 September 2018; The LAC upheld the commissioner’s decision that dismissal was substantively fair where the applicant refused to comply with the line manager’s instruction to attend a meeting.
[128] It was testified by Mr Nkabinde that up to date, the applicant had not complied with this instruction. If the applicant were merely prioritising, she would have complied with this instruction by now. This shows the presence of wilfulness. When schools reopened, the applicant decided on her own accord with her colleagues that the request was no longer urgent and still did not comply.
[129] I find that the respondent proved on balance of probabilities that the applicant is guilty of charge 2.
[130] I now turn to charge 3, 4 and 5.
[131] The charges 3,4 and 5 are substantially similar and I will analyse them simultaneously. Similarly with the previous two charges, the applicant does not necessarily deny commission but submits a point of justification. In these instances, the applicant submitted that she, as a senior lecturer had to take on more classes than she normally would. Secondly, the applicant submitted that they were under a lot of pressure due to unrests that took a lot of teaching and learning time. And thirdly that Mr Nkabinde made it difficult for her to moderate because he had taken the scripts.
[132] Regarding the first justification, Mr Sebetlene submitted that her hours were in the range of 15 to 18 hours. The applicant only stated that she had 5 groups as opposed to 3 but did not specify in terms of hours what that amounted to. It was upon the applicant to show, and not just allege that she was working more than normal. It was her allegation and the evidentiary burden shifted to her. She did not deny that the senior lecturers contact hours were supposed to be in the range of 15 to 18 hours. I therefor reject this justification.
[133] On the question of time constraints due to unrests, the respondent admitted that there were unrests that lead to loss of teaching and learning time. The respondent submitted that be that as it may, other lecturers were still able to do their job. The applicant was supposed to propose a catch-up plan. Mr Nkabinde testified that funds are available for these purposes. The applicant’s witnesses testified that he monitored but not by the book. He stated that none in his department failed to mark the scripts. It was also testified that the tasks are moderated on a task-by-task basis. It also became clear from the evidence that these tasks were conducted in intervals from as early as March 2018. To argue that unrests made it difficult for her to moderate and verify is disingenuous. More so considering that she had saved sometime by only marking only one question from the mini exam.
[134] The argument that she could not moderate because Mr Nkabinde had the scripts is really an unfortunate attempt by the applicant to pass the buck. The arguments that she could not moderate due to time constraints and due to Mr Nkabinde having the scripts are mutually destructive. The applicant realised this problem and that is why she had to state that she submitted the scripts to Mr Nkabinde in May 2018. The problem with that allegation is that she could not state what had prompted her to do so in May 2018. The request for scripts only came in July 2018. The probabilities favour the respondent’s version in this aspect.
[135] It is correct as argued by the respondent that if the other senior lecturers did not moderate, it can only mean that they were quite lucky because there is no proof of their failure. They marked their scripts and so did their subordinates. The defences of the applicant are not reasonable under the circumstances. I find that the respondent discharged its onus in proving that the applicant is guilty of these offences.
[136] As part of her general defence, it was repeatedly put to the respondent’s witnesses that she was not trained on ICASS which gets changed every year. The respondent’s version was that ICASS does not change but gets updated and a person at a position of the applicant is aware of ICASS. Further, Mr Sebetlene testified that one does not train a teacher the basics of teaching which is to teach, mark and result. When the applicant took the stand, she did not even once indicate in what area she needed training. Instead, she testified as someone who was knowledgeable in terms of ICASS. She testified on what files must be kept and their content without even looking at the ICASS guideline on Bundle D. She further argued lack of infrastructure (enough computers and rooms). She conceded that even if infrastructure was a problem, it did not contribute to the commission of any of the offences the applicant is charged with. I find that applicant was aware of what was expected of her and did not need training. I also find that infrastructure challenges, if any, are not applicable in this case.
[137] Having found that the respondent discharged its onus in proving that the applicant is guilty of all charges levelled, I now address the question of the sanction. Schedule 8, Code of Good Practice: Dismissals, items 4, 5 and 6 provide a follows: -
[138] (4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.
(6) The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
[139] It is trite that the nature and circumstances of each individual case should be taken into consideration, prior to making a decision. This is in accordance with fair labour practices and general principles of fairness which require that due consideration should be given to all relevant considerations before a sanction of dismissal (or for any other sanction) is imposed. The imposition of a fair and appropriate sanction forms an important component of the general fairness requirement of a dismissal and requires the chairperson to consider all factors, including but not limited to, the nature and circumstances of the offence that was committed, the impact of the misconduct on the workplace and any other relevant mitigating circumstances before imposing a sanction.
[140] The applicant argued inconsistency. It was testified by the applicant and confirmed by Mr Sekati that the senior lecturers all received fact finding letters and were called to respond. Applicant could not state which charge(s) should the other senior lectures have been charged with. The applicant argued that Mr Nkabinde had stated that the senior lecturers had been charged. I have gone back to the record and Mr Nkabinde did not say so. He stated during evidence in chief that labour is dealing with that issue. Under cross examination he stated that he did not get any documentation regarding them being charged.
[141] In the case of National Union Of Mineworkers, obo Botsane v Anglo Platinum Mine (Rustenburg Section) (JA2013/42) [2014] ZALAC 24; (2014) 35 ILJ 2406 (LAC) (15 May 2014) the court stated in paragraph 39 as follows ‘Moreover, as a matter of practice, a party, usually the aggrieved employee, who believes that a case for inconsistency can be argued, ought, at the outset of proceedings, to aver such an issue openly and unequivocally so that the employer is put on proper and fair terms to address it. A generalised allegation is never good enough. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly.
[142] Clearly, the applicant ought to have made the pointers as to what charges should have been levelled against the other senior lecturers.
[143] It was not contended that the other senior lecturers had marked their work and so did their subordinates. It goes without saying that charges 1, 3, 4 and 5 would not stand against the other senior lecturers. Even if the applicant were to argue that the other senior lecturers could have been charged with insubordination, it would not support a just cause for raising the inconsistency claim. This is because there would already be vast differences in her case and the other senior lectures’ case. I am guided in this regard by the case of Southern Sun Hotel Interests (pty) Ltd v CCMA and others [2009] 11 BLLR 1128 (LC), where the honorable judge Van Niekerk when dealing with the parity principle held: “similarity of circumstance is inevitably the most controversial component of this test. An inconsistency challenge will fail where the respondent is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors”
[144] The position of the applicant at the time of commission of the offences was senior in nature. In the case of Toyota Sa Motors (Pty) Ltd V Radebe And Others (2000) 21 ILJ 340 (LAC) at paragraph 24 the court stated as follows “there can be no gainsaying the fact that the post to which the respondent was appointed is a senior post, which required a high level of trust and integrity. The employer was entitled, in the circumstances, to say that it was risky to keep the employee in its employ as it could no longer trust him”.
[145] The applicant throughout the whole process, did not show remorse, she did not at all admit her own liability to the acts that led to her dismissal. The applicant’s evidence did not necessarily deny commission of the offences but gave justifications. The applicant could have admitted wrongdoing and asked for mercy but chose to rather give justifications which in all honesty are just excuses. In De Beers Consolidated Mines Ltd V CCMA And Others (2000) 21 ILJ 1051 (LAC) at paragraph 25 the court stated: - Where as in this case an employee over and above having committed gross misconduct (own emphasis) falsely denies having done so an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to himself that the risk of continuing to employ the offender is unacceptably great.
[146] Considering the mitigation, the applicant has worked for the respondent for a very long period. The force of the mitigation factors in this case do not compensate for the severity of the offence that was committed. I am guided in this regard by a case of Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & others where the court stated in the dictum as follows: - “the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have a minimal impact on the sanction to be imposed. In other words, whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established, in particular in a case where the employee shows no remorse. The reason for this is that there is a high premium placed on honesty because conduct that involves corruption by the employee damages the trust relationship which underpins the essence of the employment relationship.” Although this case does not relate to dishonesty, the dictum serves a s a guideline in that the severity of the offences committed as well tilts the scales to an extent that the long period of service has no impact on the sanction.
[147] The respondent’s witnesses testified that the applicant cannot be reinstated because the trust relationship had broken down. She argued that she could be trusted because she continued working for the respondent until 2020 August. It is not in dispute that in terms of PSCBC Resolution 1 of 2003, the sanction of dismissal could not be implemented during the appeal. It therefore cannot be correct that awaiting an appeal outcome of a dismissed employee is a sign of existence of trust. The respondent was bound by the agreement to keep the dismissal in abeyance.
[148] It is my finding that the dismissal is a fair sanction under the circumstances.
Award
[1] The dismissal of the applicant, Mashalene Kedibone Vilakazi, by the respondent, the Department of Higher Education and Training Gauteng, was procedurally and substantively fair.
[2] The case against the respondent is dismissed.
[3] I make no order as to costs
Dated on the 31st day of May 2021
_______________________________
Kuvonakala Chavalala
ELRC Panellist
Case No.: ELRC 135-20/21GP
Date of Award: 31 May 2021
In the ARBITRATION between:
PSA obo Mashalene Kedibone Vilakazi and 1 other
(Union / Applicant)
and
Department of Higher Education and Training Gauteng
(Respondent)
Union/Applicant’s representative: Mr. Sigudla
Email:
Respondent’s representative: Ms. Mogami- Habedi
Email:
DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between PSA obo Mashalene Kedibone Vilakazi (hereinafter referred to as “the applicant”) and Department of Higher Education and Training Gauteng (hereinafter referred to as “the respondent”). The citation refers to ‘and 1 other’ because the case was initially referred on behalf of two applicants, the applicant and one Mr Kgomo. A ruling was issued to separate the matters of the two applicants. This award is only in respect of PSA obo Mashalene Kedibone Vilakazi. The hearing concerned an alleged unfair dismissal dispute. The hearing was mainly conducted physically. It was conducted virtually in respect of the testimony of one witness of the applicant. It sat on several occasions and was finalised on the 06 May 2021.
[2] The applicant was represented by Mr Sigudla from PSA. The respondent was represented by Ms Mogami-Habedi from the respondent.
[3] The respondent submitted 5 bundles of documents which were marked Bundle A, B, C, D and E. The applicant submitted a bundle which was marked Bundle V.
[4] On the last day of the hearing, parties could not immediately submit their closing arguments and they requested to submit written arguments. I granted the request and allowed parties to submit written arguments on or before 14 May 2021. On 14 May 2021, I had received both parties’ closing arguments.
[5] The hearing was held in English and it was digitally and manually recorded.
ISSUES TO BE DECIDED
[6] I am required to decide whether the dismissal of the applicant was procedurally and substantively fair and, if not, the appropriate remedy.
BACKGROUND TO THE ISSUES TO BE DECIDED
[7] The applicant was employed by the respondent effective from 01 January 1998. She was holding a position of a Senior Lecturer with persal number 10480153. Dismissal was the recommended sanction by the chairperson on 23 September 2019. The appeal outcome confirmed dismissal in August 2020. She lodged the dispute with the ELRC on 07 August 2020.
[8] The applicant was charged with 5 counts of misconduct. She pleaded not guilty to the charges. The alternative charges were withdrawn, and she was not required to answer them. The applicant was found guilty on all charges. The charges were formulated as follows: -
1. Charge 1: Contravening marking guideline for National Certificate intro Computer Practice
Contravening the above in that during the 1st semester of 2018, at or near Soshanguve South Campus, while marking the scripts for Intro Computer Practice Mini Examination (task 3) you marked the students’ scripts without having complied with the marking guideline for National Certificate Intro Computer Practice N4.
2. Charge 2: Refusal to carry out a lawful and reasonable instruction.
You are hereby charged with a serious act of misconduct for refusing to carry out a lawful order or routine instruction without just or reasonable cause in that during the 1st Semester of 2018, at or near Soshanguve South Campus you did not submit your subject file and assessment file for Intro Computer Practice N4 in line with Section 9 and item 9.1 of the Internal Continuous Assessment (ICASS) guideline for report 191 Programmes and as instructed by the Campus Manager Mr Nkabinde
3. Charge 3: Dereliction of Duty
You are charged with dereliction of duties in that on or around the 1st Semester of 2018, at or near Soshanguve South Campus, you failed to execute your supervisory duties and as a result your subordinate, Mr Mdluli, lecturer failed to mark the students’ scripts for Computer Practice N4 and submitted fraudulent marks.
4. Charge 4: Dereliction of duty
You are charged with dereliction of duties in that on or around the 1st Semester of 2018, at or near Soshanguve South Campus, you failed to execute your supervisory duties and as a result your subordinate, Mr GH Mokopakgosi, lecturer, submitted mark sheets with marks of students differing from the marks allocated in the answer scripts (information Processing N5) and also for giving students tests and or mini exam that did not cover 50% of the work required.
5. Charge 5: Dereliction of duty
You are charged with dereliction of duties in that on or around the 1st Semester of 2018, at or near Soshanguve South Campus, you failed to execute your supervisory duties and as a result your subordinate, Mr Kgomo, Lecturer failed to mark the students’ scripts for Intro Information processing N4 and submitted fraudulent marks.
[9] The following were common cause issues: -
a) Date of employment, position, and the date of dismissal.
b) The chairperson recommended the sanction of dismissal in September 2019. The applicant lodged an appeal and received an appeal outcome in August 2020.
c) Applicant was given a notice to attend disciplinary hearing. The charges were clear, her rights were explained, she was given time to prepare her case, she was given a chance to question witnesses that were called, and she was advised of the outcome of the disciplinary hearing.
d) The applicant was responsible for overseeing a unit of 7 junior lecturers teaching Computer Subjects.
e) Regarding charge 1, it is common cause that it is the applicant who marked scripts for intro Computer Practice Mini-Examinations (task 3). There is an existing marking guideline for National Certificate Intro Computer Practice. The marking guidelines were not complied with.
f) Regarding charge 2, it is common cause that there was an instruction to all 21 lecturers by campus manager Mr Nkabinde.
g) Regarding Charge 3, it is common cause that Mr Mdluli was a subordinate to Ms Vilakazi. Mr Mdluli submitted the scripts to the requester for Computer science Practice N4.
h) Regarding Charge 4, it is common cause that Mr Mokopakgosi was a subordinate to Ms Vilakazi. Mr Mokopakgosi submitted the scripts to the requester for Computer science Practice N4.
i) Regarding Charge 5, it is common cause that Mr Kgomo was a subordinate to Ms Vilakazi. Mr Kgomo submitted the scripts to the requester for Computer science Practice N4.
j) The applicant had a clean disciplinary record.
[10] The following were issues in dispute:
a) There was justifiable reason for the applicant’s failure to comply with marking guidelines.
b) That the applicant refused to carry out instructions.
c) That there was a misunderstanding of what was required by the campus manager.
d) That the applicant failed to execute her supervisory duties.
e) That the respondent acted inconsistently in applying discipline as two other lecturers who should have been charged for charges 2,3,4 and 5 were not charged.
f) Harshness of the sanction
[11] The applicant sought retrospective reinstatement as a relief.
SUMMARY OF THE PARTIES’ EVIDENCE AND ARGUMENT
This section only records the summary of the evidence that was tendered and not the verbatim testimony of the witnesses. The case was digitally recorded, and such recordings can be provided to the parties upon request.
Respondent’s case
The respondent called four witnesses who testified as follows:
First witness: Sphiwe Nkabinde who testified under oath and the summary is as follows:
[12] He is employed by the respondent as a Campus Manager at Soshanguve South Campus. He has been with the education department since 1998 and gave an overview of his employment history. His role as a campus manager requires him to ensure that the entire campus is properly administered in all its different units. The academic unit is the core business of the institution and all other units are supportive in nature. In broad terms, his role is to ensure that teaching and learning properly takes place.
[13] The applicant was a senior lecturer at the campus. In terms of the organogram, the applicant reports to the HOD and the HOD reports to him. The lecturers report to the applicant. The senior lecturer is responsible for heading a certain division. As a senior lecturer, the applicant was responsible for ensuring that the timetable is complied with; ensuring compliance with the ICASS guidelines and that lecturers are preparing questions and memorandums. They are responsible for pre and post moderation and verification. She must ensure that lecturers have the files as stated in the ICASS guideline.
[14] The HOD and the campus manager must also do moderation.
[15] He arrived at the campus in May 2018. It was already exam time. After exam qualifying marks are submitted to the Department of Higher Education and Training (DHET), a declaration must be signed by the campus manager declaring that the marks are indeed correct. Before signing the declaration, he must verify the marks. He wrote a letter to the HOD Mr Mekoe requesting submission of subject files. He did not get any reply. He then wrote a letter to the senior lecturers as appears on Bundle A page 19 requesting the memoranda and question papers and he never got a response. School closed and when they reopened, he wrote a letter to the senior lecturers as per page 20 of Bundle A. he never got any response from the applicant. This according to him resulted in insubordination. He resorted to asking the lecturers directly for the files he had requested, and they submitted. He perused the scripts in order to moderate. He discovered that the lecturers had not marked the scripts. The applicant had also not marked the scripts. The marks allocated for students were thumb sucked and were fraudulent.
[16] He then wrote a letter to the principal explaining his findings as per page 11 to 12 of Bundle A. The principal required a response from the applicant and the applicant replied as per page 9 Bundle A. The response of the applicant is nothing but a lie. He never sat with the applicant and the other senior lecturers to collude on compromising ICASS guideline. The agreement said to have been reached in this meeting is corrupt and contradicts the policies of the DHET and he would not risk his job by agreeing to such a corrupt arrangement. The meeting of the 06 June 2018 never happened, if it had, he would be having minutes as he always keeps a paper trail.
[17] Bundle D is an ICASS guideline and every lecturer and or manager and institution must comply with the ICASS guideline. Clause 9 of the ICASS guides on what must be included in lecturer’s files. The lecturer must keep a lecturers subject file, lecturer’s Assessment file and Portfolio of evidence as stipulated in the ICASS guideline.
[18] His request to the HOD, Senior lecturers and subsequently the lecturers was urgent and that is why he stipulated the time frames of submission. His letters are even clear as to why he requested the information. Firstly, it was in order to ensure compliance with ICASS and secondly to prepare for MOP up as he had about 70% pending results. When there are pending results, the DHET requests for Scripts, the register, mark sheet, question papers and memorandum to demystify the reason of pending results.
[19] According to ICASS Guidelines for Report 191 Programmes, at least three tasks must be administered, to wit, test 1 (task 1), Assignment (Task 2) and Mini Exam (task 3). Task 1 contributes 30% toward final exam mark, task 2 counts for 20 % and task three counts for 50 % towards final exam mark. The students must know their year marks before they sit for an exam.
[20] In the event institution has lost teaching and learning time due to strikes; a catch-up plan must be developed in order to cover the loss. He was briefed about the 5-week loss of teaching and learning and such loss does not exonerate the applicant’s failure to mark. A catch-up plan had to be established to salvage the loss of time.
[21] He believes the applicant is guilty of charge 1 because she had not marked the scripts. There is a National Policy Guideline on how to mark Computer Practice and Information Processing. She had only marked with a red pen and no blue pen. He has a bit of information on how to mark Computer Practice and he easily picked up that marking was not done according to the guideline. Page 50 of Bundle A is an example of a script of a student who got 100% but one cannot see on the script how that was achieved. On the ICASS record sheet on page 170 of Bundle A, the same 100% appears on the student’s marks submitted to the DHET. Page 88 to 102 is another example on Mathye A, a student whose script was not marked but given thumb sucked marks. This behaviour was seen across all scripts. This is clearly preparing students for failure and it is a deception to students and thus affects the quality of the students produced by the college. These fraudulent marks bring the College’s name into disrepute. Teaching is a labour of love; one must be able to love students enough to teach and correct them. Otherwise, one would be dooming them for failure.
[22] He believes the applicant is guilty of dereliction of duties in failing to exercise her supervisory duties over her subordinates. The applicant is expected to do pre-moderation. This includes that she must check questions to ensure they comply with bloom’s taxonomy. She is also expected to do post moderation. This includes that she checks the student’s answer scripts because one cannot verify without the scripts. She had to ensure that marks are recorded and send them to HOD for post moderation. Page 8 to 9 of Bundle D, clause 7 of the ICASS guideline is very clear on moderation of tasks. It addresses why, what, and how to conduct moderation. Had the applicant done this, she would have discovered that the lecturers had not marked the scripts. The senior lectures are given less hours for classes as opposed to lectures in order to afford them an opportunity to do the supervisory roles.
[23] Mr Mdhluli, the applicant’s subordinate never at all marked the scripts of his students that he was teaching Computer Practice N4. He just allocated marks. Mr Mdhluli first ducked and dived when he was requested for scripts but ultimately submitted. He asked the applicant and the HOD why Mr Mdhluli had not marked the scripts and they referred him to Mr Mdhluli’s personal problems. The marks that were given to the DHET in the ICASS marks sheet were thus fraudulent, corrupt and thumb sucked. Page 8 to 24 on Bundle B are the examples of the unmarked scripts in this regard. Mr Mdhluli was charged as per page 2 to 6 of Bundle B, but he decided to resign as per page 7 of bundle B.
[24] Mr Mokopakgosi, the applicant’s subordinate also did not conduct task according to the ICASS guidelines. He gave students only one task and regarded question 1 as task 1, questions 2 as task 2 and question 3 as task 3. The examples of those scripts are on page 136 to 146 of Bundle B. It is not even clear how the students got the percentages that were allocated to them. Fraudulent marks were then recorded on the ICASS marks sheet and submitted to the DHET and there is no relationship between the scripts allocated marks and the mark sheet recorded marks.
[25] Mr Kgomo, the applicant’s subordinate also did not mark intro for Information Processing. As appears from page 60 of bundle B, a student was given 40 % and the assessment was not marked. Page 60 to 80 of bundle B are some of the examples of the scripts. On page 96 of Bundle B which is the ICASS mark sheet, the weighting of the task was also done wrongly. Task 1 should count for 30 % while task two should count for 20%. Mr Kgomo weighted task 1, 20% and task 2, 30 %. It is not clear how marks were reached. There is no policy that states that 40% must be given for a late assessment. Mr Kgomo was charged, he attended the hearing and was dismissed.
[26] If the loss of 5 weeks teaching and learning was an issue, other Senior Lectures should have suffered the same fate, but they did not, they did their work.
[27] The trust relationship between the applicant and the respondent is totally broken down into pieces and it can never be repaired. During the disciplinary hearing, the applicant did not even go to class and other lecturers had to assist. The HOD also got a ‘love letter’ for dereliction of duties and he resigned on the eve of the hearing. He had sent letters requesting files from other Senior Lecturers as well. The process is still ongoing and labour is handling that issue of insubordination. The other senior lectures had marked their scripts.
[28] He never saw the task team preliminary report that appears on page 74 to 81 of Bundle V. He was reporting to the Central office from September 2018 to December 2018 and Ms Maja acted at the campus as an overseer. He believes that the report was done during that time and he cannot comment on it. No hand over was done when he returned to campus.
Cross examination
[29] He was not so well received when he arrived at Soshanguve South Campus. Some staff members wanted him to go back because he was ‘the principal’s person’. He was told he would be the 5th campus manager to be dismissed. The people who were championing the rejection were Themba Baloyi, Lebello Alfios, Sithole and Sedimela. They wrote a memo for his removal and most lectures signed including the applicant. He was once held hostage by some lecturers who were demanding the scripts back, he cannot recall if applicant was part of those.
[30] He started at the campus in May 2018 which was on the eve of submissions, so he had to start with preparing. He did meet with the HOD around May 2018 and also for staff introductions. He has no minutes of that meeting, but one would not be able to arrive at an institution and just start working without meeting people.
[31] He denied attending the meeting of the 6 June 2018, he would not have attended a meeting and resolved on corruption. According to him, senior lecturers are lying against him. Given the relationship and the environment at Shoshanguve South, it became imperative for him to keep a paper trail. He had realised he is working with back-biters.
[32] He stated that the ICASS guidelines is like their bible, they must live and act by it. It gets reviewed yearly; one cannot operate outside the ICASS guidelines. He is not responsible for requesting extensions from the department, but the principal is. The senior lecturer is part of management and she must know the guideline to do her work.
[33] The applicant does not directly report to him but to the HOD. However, nothing stops him from sitting with the applicant to question about an issue of concern. But given the fact that the relations were tense between him and the lectures and the tight time frames, he did not utilise that approach. He rather communicated with HOD, Mr Mekoe. As he knew he was not wanted, communicating via paper tail was the best method according to him.
[34] On whether the other Senior Lecturers had been charged all he can say is that he has not received any documentation from labour, labour must answer as he has no evidence.
[35] When the Senior lecturer post moderates, she only has to sample at least 10% of the scripts with a green pen.
[36] When he arrived in Shoshanguve South Campus, he was surprised that some students were failing intro but progressing to N4. The department recognises intro subjects very much. Almost every course has an introductory subject.
[37] He conceded that the applicant arrived at the campus in January 2018. He stated that she knew the processes as one does not use feelings to do their duties but policies. She knew she had to mark and moderate. He was also new at the campus in May 2018, but he still had to do his job according to policies.
[38] Pre and post moderation should have happened a long time ago and he denies that the applicant failed to do them because her subordinates had submitted scripts directly to him. When he arrived, it was at the time when results were required. The moderation is supposed to happen on a task-by-task basis since the tasks are not conducted simultaneously. The applicant should have moderated the scripts long ago before he even requested them. Even the HOD and campus manager are ideally supposed to moderate on a task-by-task basis.
[39] He stated that he could not answer on whether the applicants were taken through the ICASS guideline in January 2018 as he was not there, he can only say that is practice doing so. ICASS guidelines have been in place since the invention of TVETs. All lectures receive the ICASS templates yearly.
[40] Senior lectures submit assessment plans to HOD. HOD submits same to Campus Manager. Campus manger submits to Deputy principal (Academic) who then formulates a campus plan.
Second witness: Maria Helena Munro du Preez testified under oath and the summary of which is as follows:
[41] She is employed by the respondent as a deputy Campus manager Academic. She has 25 years’ experience as an examiner and moderator. She is a committee member of the irregularity Committee for Computer Subjects.
[42] She formed part of the committee that drafted the Examination Instructions No 13 of 2004 as appears on Bundle C. These instructions show exactly how to mark Computer Subjects tasks. Page 5 of Annexure 2 of Bundle C stipulates how marking Computer subjects must be done. To name but a few, spelling error is marked with Red pen and a slash. Display error is marked with a Blue pen, a cross and a number representing the error. If for example, the margins are incorrect, the number next to the blue pen and a cross will be ‘1’; if paper size is incorrect, the number will be ‘6’. There must also be a rubric for each question.
[43] All scripts must be marked according to the guidelines. Page 50 to 61 of bundle A is a script of a student Matswiki Tebogo. This student got 100% according to the applicant. There are already several errors that she can point out. The witness pointed out the errors page by page from page 50 to 61. She does not understand how the student got 100%. The script was not marked according to the guideline and most questions were not marked. She pointed out errors for the script of Mathye A on page 88- 102 of Bundle A. the applicant only marked 5b and yet did not mark it according to the guideline.
[44] The applicant’s subordinate, Mr Mdhluli also did not mark scripts as appears on page 8 to 20 of Bundle B. It is the responsibility of the Senior Lecturer to ensure scripts are moderated, that is the only way of ensuring that lecturers are marking scripts.
[45] If a student were to complains about their marks and requests a remark or that their results are pending, the campus would be required to provide that DHET with marked scripts. Failure to mark disadvantages the students because they got marks, they did not deserve and they would think that they know the subject while they do not.
[46] Page 50-58 of Bundle B is an example of the script for information processing. Mr Kgomo Clearly did not mark the script but gave 40 %. 40% is not a true reflection, the student could have gotten less or more. If the student could not write, they should submit proof justifying absence. If they do give satisfactory proof, they will be afforded a chance to write, if not they should get Zero.
[47] In the event scripts are submitted and are unmarked, she gets called to mark the scripts because scripts must be marked. If scripts are not marked according to guideline, then those scripts are not marked.
[48] One is not allowed to only roll out 1 assessment. ICASS is clear that 3 tasks must be done.
Cross examination
[49] An exam specialist is really someone who has been teaching a subject for a few years.
[50] Introductory subjects are very important, they are not bridging courses. She cannot answer why the students were progressed in Soshanguve even after failing the introductory subjects.
[51] All campuses are bound by the same marking instructions, it is not true that every campus will have its own policy on marking.
Third Witness: Selaelo Sebetlene testified under oath and the summary of which is as follows:
[52] He is the Deputy Principal responsible for academic services. He is responsible for all curriculum related activities. He joined TVET in 1997 as a lecturer and grew through the ranks to Deputy Principal. He joined the campus in September 2018.
[53] ICASS is a policy from DHET. It is clear from ICASS what the obligations of every lecturer in terms of files that must be kept and what should go into those files. An instruction to submit any of the contents of any file is clear and it is reasonable. Any academic manager, i.e. principal, deputy principal, campus manager or HOD can request documents in order to check compliance with ICASS and that teaching and learning is taking place the way that it should be.
[54] The senior lecturer is in the first line of academic management, followed by HOD, Campus manager and himself. As fist lime academic managers, it is the senior lecturers’ responsibility that ensure that curriculum delivery takes place effectively at the campus. That is why their allocated teaching periods are less than those of lecturers.
[55] Academic Board and DHET require proofs of compliance with ICASS. Failure to implement ICASS would bring the qualification to disrepute as it becomes compromised one way or the other.
[56] The senior lecturer must develop an assessment plan in her division. Such a plan will inform the campus plan and the academic plan. She must ensure that tasks are moderated. She can identify moderators within the program. She must ensure that marks that are captured are correct. The moderator does not take away the responsibility of the senior lectures. The moderator moderates and senior lecturer verifies. One verifies by checking if marks on the answer sheets comply with those that are in the mark sheets. In case where scripts are not marked, verification was not done. Moderation and verification must take place after each task. This helps to assess student performance by identifying areas of struggle for students and factor that area into teaching and learning. The senior lectures must check if work of lecturers is up to date. Moderators do not have line authority and cannot charge lecturers for not doing their job.
[57] All academic line managers, including himself, are expected to sign a declaration that marks submitted are genuine. He may go to campus to sample the scripts even if campus manager has signed a declaration to satisfy himself of the authenticity. Signing a declaration has serious repercussions and one would do best not only to rely on what is presented but also conduct sampling. There is absolutely nothing wrong with any academic manager requesting the documentation.
[58] Non marking of scripts is a very serious misconduct. The stakes are just too high. If non marking was ever brought to media, no parent would want to register their child with such an institution. There are a lot of resources poured into colleges by the government as part of building skills and non-marking of scripts wastes those resources. All cases of non-marking were subjected to disciplinary action and while others were dismissed, others elected to resign.
[59] The misconducts that the applicant is charged with are gross. Policies and processes need to be adhered to. The institution cannot afford to be seen perpetuating this misconduct and as such reinstatement is not an option. This is not just for the college but also for the country. The college owes the country well skilled people who will contribute positively to the economy. All role players should be confident in the college’s qualification and the applicant compromised it.
[60] He joined the college in September 2018 and there was disruption in Soshanguve South Campus. He went there to try and deal with issues. One of the resolutions he made was to temporarily remove the campus manager from the campus in order to restore teaching and learning and staff were happy about that. He then sanctioned an investigation around end of September 2018 and Ms Maja was the chair. Ms Maja signed the report on page 74 of Bundle V.
Cross examination
[61] There are embedded qualities in any position. A teacher is expected to know inherent requirements of teaching. His approach on a non-compliance with responsibilities would depend on the nature of the non- compliance. A teacher knows that they must teach, mark and give feedback and that is basic. Assistance can be offered on the question of methodology maybe but not the inherent fundamentals of the position.
[62] ICASS guidelines do not change but are merely revised on a yearly basis. The College bears the responsibility of training lecturers of ICASS. HOD or even Senior lecturers can train them. He does not know if the lecturers were trained in 2018 but every lecturer must have ICASS guideline whether they are trained or not. The lecturer must have the guideline in order to ensure compliance.
[63] Senior lecturers are the ones to develop an assessment plan. Senior lecturers manage a program, HODs manage a division and Campus managers manage the campus. The campus fosters the plans of the program and cannot impose a plan on the lecturers. Campus plan encapsulates when tasks will be administered, who will set and moderate, when will campus close and open and all activities of the campus.
[64] Most unrest will affect teaching and learning and that is why there must be contingency plans after the unrest to compensate for the time lost. Unrest cannot be the reason for failure to comply with policy. They can request delayed submission of marks from the DHET not assessment and resulting.
[65] It would be acceptable for the applicant to have 5 periods because her teaching hours range from 15 hours to 18 hours.
[66] It would not be possible to intervene and try to correct the non marked scripts at the stage Campus manager requested the scripts as marks were already submitted to the DHET
[67] He has not received any documentation to the affect that Mr Sekati or Ms Moremi were charged.
THE APPLICANT’S CASE
The applicant, Mashalene Kedibone Vilakazi testified under oath and the summary of which is as follows:
[68] She started at Soshanguve South Campus in January 2018. She reported to Mr Mekoe and she had 7 subordinates reporting to her.
[69] When she arrived, they had 5 computer rooms and they had to share the rooms. She was initially given 3 groups but the need arose for her to take on more groups as students would not have lecturers. She ended up having 5 groups instead of 3 groups and each group has about 30 students.
[70] It happened that there was student unrest and they fell behind with teaching and learning, monitoring and verifying. She and the other senior lecturers, Ms Moremi and Mr Sekati agreed that since it was almost time for internal exam, each lecturer will give his or her own tasks.
[71] When she gave the mini exam task, the students had to write in two different classes at the same time. She had to move in and out between the two classes for the three-hour long paper. The students finished writing and some computers were not printing. She had to save their work on her USB to print later on. When she was transferring the student’s work to her USB, she realised that some other student’s work which was similar to the mini exam was already in the computer. She found that it was same work with different names. This was an irregularity because the students had copied the works of other students already done by other lecturers. She then decided she would only mark the excel question since she had not covered it well in class the scripts were many and that lead her to marking not according to guidelines in red and blue pen. She took the excel marks and put them in the marksheet and gave it as a term mark. Mr Mekoe would have been the person to monitor and verify her work. She did not submit to Mr Mekoe but to campus manager since he requested the scripts.
[72] When she and the other senior lectures verified the marks, they only looked at the marksheet of the lecturer and that of the DHET to check if they were the same because the campus manager had the scripts. After submitting the scripts, the campus manager never sat with her to talk to her. She submitted the scripts around May 2018.
[73] She received the memo on page 19 of Bundle A. They were busy with exam and they told the campus manager that they are busy invigilating and requested pardon.
[74] On page 19 of Bundle A, she understood that he required test 1, assignment and mini exam scripts and she complied with the instruction. She also understood page 20 of Bundle A and she submitted all tasks, copy of mark sheets, spreadsheets. She does not remember when she submitted. There is a route form that they normally would sign for receipts and submission at the campus but when the documents were submitted to the campus manager they were not given the form to sign. They were just told to put the scripts in his office.
[75] Exam ran as normal and school closed. After they reopened, she got a letter from the principal alleging that they had submitted falsified marks. The three senior lecturers each received their letters. They then sat and responded together to the principal.
[76] She did interact with her subordinates verbally to check how far they are with the work although it proved to be difficult at times because of unrests and lock outs. After her subordinates submitted the scripts to campus manager, she was not called by the campus manager to give her feedback.
[77] The campus manager held a meeting with them on 06 June 2018 with all senior lecturers, NCV and finance and. He wanted to know the status of business studies personnel. He wanted to know about the status of each department. She is surprised that he denied this meeting. Mr Nkabinde’s secretary was taking the minutes of the meeting.
[78] She wants retrospective reinstatement as a relief.
Cross examination
[79] She conceded that the letter on page 19 of bundle A was clear that question papers and memoranda were required. She conceded that she submitted scripts which were never required in terms of the letter on page 19.
[80] She submitted scripts before schools closed in June 2018. She could not state what had prompted her to submit the scripts. She conceded that the letter on page 20 written in July 2018 is the one that requires scripts.
[81] The focus was on enrolment when they reopened. She was under pressure to focus on pending results. They struggled with pending results because scripts were in Mr Nkabinde’s office as scripts would at times be required to cure pending results.
[82] The campus manager has the authority to request scripts or any other documentation.
[83] She accepts that she did not mark the scripts according to the rules. All she can say is there was a lot of pressure at the campus at that time. She agrees that the marking that was not done according to standard compromised the quality.
[84] It was put to her that she never mentioned the irregularity of students coping and that it would not be possible for her questions to be similar to another lecturers. She indicated that sometimes they use old question papers and questions may be the same. It is allowed to use past questions but it is discouraged.
[85] She confirmed that not all her subordinates were charged but she could not confirm they had marked correctly. She did not see her subordinates’ scripts and sated that time did not allow since there were lot of time lost due to unrests.
[86] Looking at the scripts, page 8-12 of bundle B, she cannot say what informed the 64% that the learner got. She would have picked it up if monitoring had been done.
[87] She could not sate what common charge she thought she had with the other lecturers, just that they all received fact finding letters.
[88] She believes that the trust relationship with the respondent is not broken down because the allegations are for first semester 2018 and she continued to work until 2020 and that shows that there was a lot of trust.
[89] She stated that the 5-week loss of learning was not a consecutive period, unrests would happen in different intervals.
[90] There is no policy when a student copy/plagiarise, the lecturer must just do what is best for him or her. She discovered the plagiarism in more or less 10 scripts.
Second witness: Humphrey Abner Sekati, who testified under oath and the summary of the evidence is as follows
[91] He is employed at the Soshanguve South Campus and is currently holding a position of an education specialist commonly known as a senior lecturer. He has about 6 or 7 subordinates reporting to him.
[92] Shoshanguve south was in a crisis situation in 2018 in relation to students and management. There were unrests and they lost a lot of teaching and learning time and there was no stability of management.
[93] The campus manager Mr Nkabinde convened and held a meeting on 06 June 2018 with senior lecturers. He wanted to know progress as they were approaching exam. It is strange that he would deny existence of the meeting because he was its convener.
[94] He received a letter similar to Page 19 of bundle A. He submitted scripts and ICASS marksheets to the campus manager. To date, he has not been charged.
[95] The issue of non-marking of scripts is not rife at all. Non marking is a very serious misconduct and he has never come across it in his department.
[96] The circumstance at the campus in 2018 put them under a lot of pressure. He does not encourage cutting corners but it became difficult to comply with each and every requirement due to unrests and non-stability of management. He is also a firm believer in corrective action, and he considers it best to correct than to try and make an example of someone. It was near impossible to monitor everything accordingly.
Cross examination
[97] His understanding of the reply letter on page 11 Bundle A was that they had said they would start on a clean slate the following semester as marks had already been sent to the Department.
[98] He only recalls the senior lecturers for report 191 as attendees of the 06 June 2018. He cannot recall how the meeting of the 06 June was called.
[99] He does not recall submitting question papers and memoranda to the campus manager. He remembers submitting scripts and marksheets. He was not being defiant but merely prioritising. They were busy with exams at the time the information was required so he viewed the exam as priority.
[100] He insisted that non- marking is a serious misconduct and not marking according to guidelines can be corrective. This depends on the extent of non-compliance. He stated that if a lecturer had decided to mark only one question in the answer scripts of learners, he would deem it as a big case especially if it was deliberate.
[101] The campus manager had the right in his position to request for the documents he requested.
[102] He was monitoring his subordinates but not by the book. In his section, he did not have any lecturers that did not mark
ANALYSIS OF EVIDENCE AND ARGUMENT
[103] In terms of section 192(1) of the Act, the employee bears the onus to prove the existence of dismissal. The existence of dismissal was placed out of issue because the respondent confirmed that the applicant was dismissed.
[104] In terms of section 192(2) of the Act, if the existence of the dismissal is established, the onus rests on the employer to prove that the dismissal is fair. In terms of section 188 of the Act, a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity.
[105] The procedure followed for the dismissal was challenged by the applicant on the basis that the chairperson did not communicate the final outcome within 5 days of the conclusion of the hearing. it was argued that this was in violation of PSCBC Resolution 1 of 2003 clause 7.3(o). Further, her appeal was not finalised within 30 days from the day it was lodged, and this was in violation of clause 8.8 of the same Resolution.
[106] It was argued on behalf of the respondent that the applicant did not suffer any prejudice and she stood to benefit because she received her full salary as a normal employee. Further, the same Resolution prevented the respondent from effecting the dismissal while the employee has lodged an appeal.
[107] It can be easily gleaned from the facts and the documents that the appeal time limits were not complied with by the respondent. Regarding the outcome, no sufficient evidence was presented by the parties as to when the disciplinary hearing was finalised. Both parties argued that the outcome was issued on 16 September but are not clear on when the hearing was finalised. In her arguments, the applicant stated that the case was finalised on the 29 July 2019. Turning to the documentation, page 1 of Bundle V indicates that the disciplinary hearing sat on 02 September 2019. The respondent indicated that the case was concluded on 12 September 2019. Both parties did not present conclusive testimony on the aspect of when the hearing was concluded.
[108] It should be noted that my call goes beyond checking time limits compliance. I must over and above the time limits compliance assess the prejudice that was suffered by the applicant if any. In my view, it only was to the applicant’s advantage because she stayed on as an employee for longer than she would have if not for the appeal that delayed. The recommendation of dismissal was made on 23 September 2019 and the appeal only confirmed it in August 2020.
[109] Further, the minimum requirements for procedural fairness have been met. I am guided in this regard by the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC) where it was held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.
[110] It is my finding that the non-compliance with the time limit for appeal was not procedurally unfair towards the applicant as there was no prejudice suffered. The dismissal was procedurally fair.
[111] I now address the question of substance.
[112] In terms of Schedule 8 of the Code, anyone determining the substantive fairness of a dismissal must determine: -
(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) If a rule or standard was contravened, whether—
(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; and
(iv) dismissal with an appropriate sanction for the contravention of the rule or standard.
[113] It is not necessary for certain rules to be written more especially if they stem from common law. For an example, even if the company code does not state ‘do not steal’, every employee is aware of the fact that they may not steal. Most of the charges that the applicant was charged with stem from common law rules. She was charged with insubordination and dereliction of duties. The employee has a common-law duty to act in good faith towards the employer. Acting in good faith towards the employer is a rule that arises out of common law and it is so well established and known that it is not necessary to write or communicate them. This rule is broad enough to encompass a requirement not to derelict duties and to be subordinate to the employer. It is my finding that there was a rule which is inherent in every employer-employee relationship, this rule is valid, and the applicant is aware of it. The other charge related to not marking according to guidelines. The applicant did not deny existence of the guideline, her awareness of it and its reasonableness. I accordingly find that there was a rule in relation to marking, it was reasonable and the applicant was aware of it.
[114] The next question that arises is whether the applicant breached the rules. I now address the charges and analyse the breach or not thereof.
[115] Charge 1: Contravening marking guideline for National Certificate Intro Computer Practice.
[116] The applicant admitted that she did not mark according to guidelines. She proffered a justification. Effectively, the applicant argued that there are good grounds that should justify her escape from liability for non-compliance.
[117] The applicant stated that the mini exam had been compromised because some students had copied plagiarised the work of other students. She then decided to mark one question that related to excel since the students had not covered it adequately.
[118] She did not deny the version of Ms du Preez who testified that even the section marked was not marked according to the guideline.
[119] I find that the applicant’s justification is not reasonable to entitle her to escape from liability. The applicant could identify the students who had plagiarised but decided not to mark the scripts of all the students. The applicant’s witness testified that non-marking is a very serious misconduct. He stated that non-compliance with marking guidelines is something that according to him could be corrected. When it was put to him that the case of the applicant was that she had decided to mark only one question, even he said that such a case is big more especially if it was deliberate. The applicant stated that it could happen that lecturers have similar questions if they took questions from previous question papers. She said it was allowed but discouraged that they use questions from previous question papers, yet she did it. She conceded that her actions compromised the quality of the qualification. She decided to cure the students’ wrongdoing by committing a wrongdoing herself while there were other right ways that she could have utilised. I accordingly reject the applicant’s justification. It is my finding that the respondent has proved on balance of probabilities that the applicant is guilty of Charge 1.
[120] Charge 2: Refusal to carry out lawful and reasonable instruction
[121] The applicant submitted firstly that the instruction was not clear and secondly that she was time constrained, and they were busy with exam. The applicant stated that she submitted scripts as required in May 2018.
[122] Looking at the letter on page 19 of Bundle A, dated 21 June 2018, I am not clear as to what was so confusing about the letter. The applicant did not point out to me what was so unclear about the letter. The letter is simply requesting question papers and memoranda for all tasks. It is my finding that the instruction was clear and the applicant understood the instruction.
[123] Regarding the time constraints defence, the applicant stated that they were busy with exams and they could not just leave that to submit files to the campus manager. This was corroborated by her witness Mr Sekati who stated that they were rather prioritising as opposed to being defiant.
[124] The scripts were requested on the letter on page 20 dated 10 July 2018 together with other documents. The applicant testified that she submitted the scripts in May 2018. Of most importance and interest to me, the applicant could not state what had prompted her to submit the scripts in May 2018.
[125] The respondent’s version is that the scripts were requested when the institution reopened in July 2018. Mr Nkabinde testified that he never got the scripts from the senior lecturers after the letter on page 20 of Bundle A. He only got scripts after directly requesting them from the lecturers seeing there was no response to his letter. This could only have been after 10 July 2018. As will become clear, in order to proffer the defence for charge 3, 4 and 5 the applicant had to state that the scripts were submitted in May 2018.
[126] It is my finding that the instruction was clear and the applicant did not comply with the instruction.
[127] Insubordination as a class of misconduct, has been advanced by John Grogan that the enquiry into the gravity of the specific insubordination considers three aspects: the action of the employer prior to the deed, the reasonableness of the instruction, and the presence of wilfulness by the employee. Relying also on the authority of Grogan in the case of TMT Services and Supplies (Pty) Ltd V Commission for Conciliation Mediation and Arbitration (JA32/2017) delivered on the 18 September 2018; The LAC upheld the commissioner’s decision that dismissal was substantively fair where the applicant refused to comply with the line manager’s instruction to attend a meeting.
[128] It was testified by Mr Nkabinde that up to date, the applicant had not complied with this instruction. If the applicant were merely prioritising, she would have complied with this instruction by now. This shows the presence of wilfulness. When schools reopened, the applicant decided on her own accord with her colleagues that the request was no longer urgent and still did not comply.
[129] I find that the respondent proved on balance of probabilities that the applicant is guilty of charge 2.
[130] I now turn to charge 3, 4 and 5.
[131] The charges 3,4 and 5 are substantially similar and I will analyse them simultaneously. Similarly with the previous two charges, the applicant does not necessarily deny commission but submits a point of justification. In these instances, the applicant submitted that she, as a senior lecturer had to take on more classes than she normally would. Secondly, the applicant submitted that they were under a lot of pressure due to unrests that took a lot of teaching and learning time. And thirdly that Mr Nkabinde made it difficult for her to moderate because he had taken the scripts.
[132] Regarding the first justification, Mr Sebetlene submitted that her hours were in the range of 15 to 18 hours. The applicant only stated that she had 5 groups as opposed to 3 but did not specify in terms of hours what that amounted to. It was upon the applicant to show, and not just allege that she was working more than normal. It was her allegation and the evidentiary burden shifted to her. She did not deny that the senior lecturers contact hours were supposed to be in the range of 15 to 18 hours. I therefor reject this justification.
[133] On the question of time constraints due to unrests, the respondent admitted that there were unrests that lead to loss of teaching and learning time. The respondent submitted that be that as it may, other lecturers were still able to do their job. The applicant was supposed to propose a catch-up plan. Mr Nkabinde testified that funds are available for these purposes. The applicant’s witnesses testified that he monitored but not by the book. He stated that none in his department failed to mark the scripts. It was also testified that the tasks are moderated on a task-by-task basis. It also became clear from the evidence that these tasks were conducted in intervals from as early as March 2018. To argue that unrests made it difficult for her to moderate and verify is disingenuous. More so considering that she had saved sometime by only marking only one question from the mini exam.
[134] The argument that she could not moderate because Mr Nkabinde had the scripts is really an unfortunate attempt by the applicant to pass the buck. The arguments that she could not moderate due to time constraints and due to Mr Nkabinde having the scripts are mutually destructive. The applicant realised this problem and that is why she had to state that she submitted the scripts to Mr Nkabinde in May 2018. The problem with that allegation is that she could not state what had prompted her to do so in May 2018. The request for scripts only came in July 2018. The probabilities favour the respondent’s version in this aspect.
[135] It is correct as argued by the respondent that if the other senior lecturers did not moderate, it can only mean that they were quite lucky because there is no proof of their failure. They marked their scripts and so did their subordinates. The defences of the applicant are not reasonable under the circumstances. I find that the respondent discharged its onus in proving that the applicant is guilty of these offences.
[136] As part of her general defence, it was repeatedly put to the respondent’s witnesses that she was not trained on ICASS which gets changed every year. The respondent’s version was that ICASS does not change but gets updated and a person at a position of the applicant is aware of ICASS. Further, Mr Sebetlene testified that one does not train a teacher the basics of teaching which is to teach, mark and result. When the applicant took the stand, she did not even once indicate in what area she needed training. Instead, she testified as someone who was knowledgeable in terms of ICASS. She testified on what files must be kept and their content without even looking at the ICASS guideline on Bundle D. She further argued lack of infrastructure (enough computers and rooms). She conceded that even if infrastructure was a problem, it did not contribute to the commission of any of the offences the applicant is charged with. I find that applicant was aware of what was expected of her and did not need training. I also find that infrastructure challenges, if any, are not applicable in this case.
[137] Having found that the respondent discharged its onus in proving that the applicant is guilty of all charges levelled, I now address the question of the sanction. Schedule 8, Code of Good Practice: Dismissals, items 4, 5 and 6 provide a follows: -
[138] (4) Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188.
(5) When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.
(6) The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.
[139] It is trite that the nature and circumstances of each individual case should be taken into consideration, prior to making a decision. This is in accordance with fair labour practices and general principles of fairness which require that due consideration should be given to all relevant considerations before a sanction of dismissal (or for any other sanction) is imposed. The imposition of a fair and appropriate sanction forms an important component of the general fairness requirement of a dismissal and requires the chairperson to consider all factors, including but not limited to, the nature and circumstances of the offence that was committed, the impact of the misconduct on the workplace and any other relevant mitigating circumstances before imposing a sanction.
[140] The applicant argued inconsistency. It was testified by the applicant and confirmed by Mr Sekati that the senior lecturers all received fact finding letters and were called to respond. Applicant could not state which charge(s) should the other senior lectures have been charged with. The applicant argued that Mr Nkabinde had stated that the senior lecturers had been charged. I have gone back to the record and Mr Nkabinde did not say so. He stated during evidence in chief that labour is dealing with that issue. Under cross examination he stated that he did not get any documentation regarding them being charged.
[141] In the case of National Union Of Mineworkers, obo Botsane v Anglo Platinum Mine (Rustenburg Section) (JA2013/42) [2014] ZALAC 24; (2014) 35 ILJ 2406 (LAC) (15 May 2014) the court stated in paragraph 39 as follows ‘Moreover, as a matter of practice, a party, usually the aggrieved employee, who believes that a case for inconsistency can be argued, ought, at the outset of proceedings, to aver such an issue openly and unequivocally so that the employer is put on proper and fair terms to address it. A generalised allegation is never good enough. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly.
[142] Clearly, the applicant ought to have made the pointers as to what charges should have been levelled against the other senior lecturers.
[143] It was not contended that the other senior lecturers had marked their work and so did their subordinates. It goes without saying that charges 1, 3, 4 and 5 would not stand against the other senior lecturers. Even if the applicant were to argue that the other senior lecturers could have been charged with insubordination, it would not support a just cause for raising the inconsistency claim. This is because there would already be vast differences in her case and the other senior lectures’ case. I am guided in this regard by the case of Southern Sun Hotel Interests (pty) Ltd v CCMA and others [2009] 11 BLLR 1128 (LC), where the honorable judge Van Niekerk when dealing with the parity principle held: “similarity of circumstance is inevitably the most controversial component of this test. An inconsistency challenge will fail where the respondent is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors”
[144] The position of the applicant at the time of commission of the offences was senior in nature. In the case of Toyota Sa Motors (Pty) Ltd V Radebe And Others (2000) 21 ILJ 340 (LAC) at paragraph 24 the court stated as follows “there can be no gainsaying the fact that the post to which the respondent was appointed is a senior post, which required a high level of trust and integrity. The employer was entitled, in the circumstances, to say that it was risky to keep the employee in its employ as it could no longer trust him”.
[145] The applicant throughout the whole process, did not show remorse, she did not at all admit her own liability to the acts that led to her dismissal. The applicant’s evidence did not necessarily deny commission of the offences but gave justifications. The applicant could have admitted wrongdoing and asked for mercy but chose to rather give justifications which in all honesty are just excuses. In De Beers Consolidated Mines Ltd V CCMA And Others (2000) 21 ILJ 1051 (LAC) at paragraph 25 the court stated: - Where as in this case an employee over and above having committed gross misconduct (own emphasis) falsely denies having done so an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to himself that the risk of continuing to employ the offender is unacceptably great.
[146] Considering the mitigation, the applicant has worked for the respondent for a very long period. The force of the mitigation factors in this case do not compensate for the severity of the offence that was committed. I am guided in this regard by a case of Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & others where the court stated in the dictum as follows: - “the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have a minimal impact on the sanction to be imposed. In other words, whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established, in particular in a case where the employee shows no remorse. The reason for this is that there is a high premium placed on honesty because conduct that involves corruption by the employee damages the trust relationship which underpins the essence of the employment relationship.” Although this case does not relate to dishonesty, the dictum serves a s a guideline in that the severity of the offences committed as well tilts the scales to an extent that the long period of service has no impact on the sanction.
[147] The respondent’s witnesses testified that the applicant cannot be reinstated because the trust relationship had broken down. She argued that she could be trusted because she continued working for the respondent until 2020 August. It is not in dispute that in terms of PSCBC Resolution 1 of 2003, the sanction of dismissal could not be implemented during the appeal. It therefore cannot be correct that awaiting an appeal outcome of a dismissed employee is a sign of existence of trust. The respondent was bound by the agreement to keep the dismissal in abeyance.
[148] It is my finding that the dismissal is a fair sanction under the circumstances.
Award
[1] The dismissal of the applicant, Mashalene Kedibone Vilakazi, by the respondent, the Department of Higher Education and Training Gauteng, was procedurally and substantively fair.
[2] The case against the respondent is dismissed.
[3] I make no order as to costs
Dated on the 31st day of May 2021
_______________________________
Kuvonakala Chavalala
ELRC Panellist
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