Case Number: ELRC501-20/21GP
Commissioner: Vusi Moyo
Date of Award: 05 July 2021
In the ARBITRATION between
Jabulani Goodwill Khanyi APPLICANT
Ekurhuleni East TVET College RESPONDENT
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award issued in terms of Section 138(7)(a) of the Labour Relations Act 66 of 1995 as amended (hereafter referred to as “LRA”).
2. The matter was set down for an arbitration process in terms of Section 191(1) [191(5)(a)] of the LRA. The arbitration hearing was held virtually for nine days under the auspices of the ELRC.
3. The Applicant appeared in person. The Respondent was represented by the Assistant Director of Labour Relations, Mr Nkateko Zitha. These proceedings were conducted in English. Submissions were both digitally and manually recorded.
ISSUE TO BE DECIDED
4. Whether the Applicant’s dismissal was both substantively and procedurally fair.
5. The Applicant sought reinstatement as a remedy for the alleged unfair dismissal in terms of Section 193 of the LRA.
BACKGROUND TO THE ISSUE
6. The Applicant worked for a period of approximately 9 years as a Lecturer. At the time of dismissal he was earning a monthly salary of R22 000, 00. The Respondent is a TVET College. Bundles of documents and audio recordings were exchanged by the parties and the authenticity and veracity of these documents was not disputed.
7. The Applicant was found guilty and dismissed over the following charges:
7.1 You are hereby charged with a serious act of misconduct for conducting yourself in an improper, disgraceful and unacceptable manner in that on or about 18 October 2018, you promised a student, Ms Dimpho Mosehlane that if she allows you to go with her outside the College premises, you will change her marks from failing to pass mark.
7.2 You are hereby charged with a serious act of misconduct for the abuse of power or your position in that on or about 18 October 2018, you granted permission to your student, Ms Dimpho Mosehlane (referred to as the Tourism L3 student whom you were teaching Mathematical Literacy L2 in 2018) to leave the College premises for your gain.
SURVEY OF EVIDENCE AND ARGUMENT
8. As noted above in paragraph 3, these proceedings were digitally recorded, what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration; it is by no means a comprehensive minute of what transpired in the course of these proceedings. Section 138(7)(a) of the LRA stipulates that within 14 days of conclusion of the arbitration proceedings the Commissioner must issue an arbitration award with brief reasons. What follows underneath accordingly serves as my brief reasons:
9. The Respondent called six witnesses to lead its evidence. They were all duly sworn in and testified under oath.
10. The Complainant, Ms Dimpho Mosehlane, a young female student, was called as the first witness. She testified that on the 18th of October 2018, Mr Khanyi, the Applicant, was her Part Time Lecturer. She had been informed that she failed her Maths Literacy Level 2. She went to discuss the matter with the HOD of Maths Literacy, Ms Matsemela, as she had to find her Part-Time Maths Level 2 Lecturer. Ms Matsemela then took the Complainant to the Applicant. The Applicant agreed to take her as a Part Time student and they exchanged numbers as he said that it is his means of communication with his students for tests, assignments, etc. The Complainant stated that some Part Time classes were attended with other students but in other days she attended alone.
11. With regards to the 18th of October 2018, the Complainant stated that the Applicant asked her to come and see him. On arrival, he showed her the file with information that she had failed with attained results of 45%. He then said to her that she must give her two minutes of her time. He further said to her that she can just meet him out of the gate of the college and they will go to the back of Veritas. She then left the meeting and went to her friends crying. She informed them of what the Applicant said to her. They advised her to go back and record him. On her return he said to her, “Uyintombazana cabanga” This is roughly translated as, “Think like a girl”. The Complainant stated that she responded by telling him that she cannot do that as she has a son and he is sick, so her granny is waiting for her come back and attend to him.
12. The Complainant then decided to go and report the matter to Ms Jele, another Lecturer. She advised her to also go to the SRC Offices but there was no one there. She also reported the matter to her mother when she got home. On the following day, she went back to the SRC office. Ms Jele further took her to report this matter to the college Social Worker. She also submitted a written statement.
13. The Complainant explained that she made up a story about her son being sick just to get rid of the Lecturer’s proposal to her. She further explained that when she was asked to think like a girl and will be rewarded with a 65% mark; she thought why should they meet outside the college premises and go to the back of Veritas where it is just bushes and no one ever passes there. She relayed that she was, in actual fact, scared as a girl.
14. The matter was subsequently referred to Ms Nkosi who then she asked for scripts. However, she noticed that the 45% was changed. She also never wrote the final exam as she believed the Applicant as her Lecturer when he said that she failed and thus does not qualify. Her expectation was that the Applicant would have given her a chance to rewrite as he had done with other students.
15. The Complainant averred that she no longer feels safe on campus with Male Lecturers as they take advantage of them as girls and use them.
16. Under cross examination could not recall whether she was called by the Applicant through a phone call or whatsapp text message. She rejected the Applicant’s attempt to besmirch her testimony through a retort that whether it was a call or whatsapp message, the point is that she went to see him in his class as he asked her to meet on that day. She clarified that her child was not sick on that day even though she previously stated the contrary. When pressed for details she responded that she cannot remember some things as she was not well emotionally on that day due to what she went through. She further indicated that this is now 2021 and she cannot remember everything that happened in 2018. She stated that now she can recall some details “in pain because of what you did to me”. When pushed by the Applicant on being a parent, she retorted that, “Did you behave like a parent when you wanted to sleep with me?”
17. The Complainant further testified that she never came to the college to get the Applicant dismissed as she does not know him. She also attested that she recorded the Applicant not to entrap him but because she felt pained by what he proposed to her.
18. The second witness of the Respondent, Ms Sarah Zodwa Jele, was the first person that the young lady first reported the incident to. She testified that the young lady was overwhelmed when she looked at her. Ms Jele asserted that as the young lady’s former Lecturer she knows the Complainant. It is for this reason that when she came to her she observed her while listening to her about the incident. She was therefore confident that the student was not lying about the matter. As a female Lecturer she also declared that she also felt unsafe for herself as well as other female students and Lecturers under such conditions.
19. In explaining what happened she also had an exit permit signed by the Applicant and a recording on her phone. She affirmed that she listened to it and the conversation she heard was between the Lecturer and the student meeting outside. She avowed that she also heard the Applicant asking the student to give him two minutes of her time and it will not be long. As the matter was beyond her scope, she referred the Complainant to the Social Worker.
20. Ms Jele dismissed the Applicant’s claim that the student was a drop out as she had taught her in 2017 and also saw her in 2018. She declared that the Applicant was teaching Level 2 in 2018. She also declared that she was not teaching her but the student was registered for both Level 2 and 3, hence she appears on the submitted list. She testified that the Applicant was the Complainant’s Lecturer as she told her she attends Level 2 in his class. She was firm that she heard the Applicant’s voice on the recording.
21. In re-examination, Ms Jele was adamant that the conversation between the Lecturer and the student was to the effect that in order for the marks to be corrected, something must happen outside the gate.
22. The third witness of the Respondent was Ms Thokozile Nkosi. She is the Campus Manager and received the Social Worker’s report on the matter. The matter was escalated to the Principal. She also received the complaint form completed by the student as well as the audio recording.
23. Ms Nkosi testified that she checked on the Management system whether the Complainant was a student and also registered for part-time Maths Literacy. The system confirmed that indeed she was duly registered. The system further confirmed that the student had in fact passed.
24. Ms Nkosi could not ascertain what had happened to the script as she had been off sick for some time and had moved offices. She affirmed that she also listened to the submitted voice recording and alluded to details of what she heard in it. This led her to conclude that a rule was broken in terms of Professional Code of Conduct of Educators as it was clear to her that the Lecturer was promising a student to give her a pass mark when the student has actually failed. This to her indicated that it was as if the Lecturer was selling a pass mark to a student.
25. She rejected the Applicant’s claim of inconsistency on the basis that if a matter is not reported or uncovered, the college would not be able to act on it. She responded under cross examination that the Applicant did not apply nor was appointed as a part-time Lecturer in 2018. She also did not have registers for part time classes. Despite the fact that no copy was submitted at arbitration, she was certain that she saw the student’s script and noted that she had passed whereas the student was told that she had failed.
26. Ms Nkosi further testified that she met with the student after the complaint was reported and she confirmed what was in the written statement. She no longer had the documents in her possession due to reasons stated above.
27. The Applicant challenged her position as a witness in this matter and she responded that her testimony is not irrelevant as she had listened to the recording in 2018 and the matter was reported to her as a Campus Manager. The Applicant further put it to her that in the recording, he never said to the student that she had failed. She declined to dispute that as it is the Applicant’s version. She defended herself as a credible witness in spite of not being able to remember everything in detail due to time lapse since 2018.
28. The fourth witness of the Respondent was Mr Muziwakhe Mathe. He was the HR Manager at the time of the incident. He testified on the seriousness of the offence. He facilitated the appointment of an external initiator and presiding officer to avoid bias. He supported this decision by also adding that both individuals are employed by organs of state, thus come from same employer and not paid separately for this hearing as they are already employed by the state for this function.
29. He revealed under cross examination that he established from the Complainant that the permit was issued by the Applicant for personal gain and not for the reason stated in the document. This was substantiated by the submission that the Complainant, in fact, never went outside the gate as authorized when she got the permit. To Mr Mathe, this proved to him that there was never a reason for her to go outside.
30. Mr Mathe further responded to the Applicant’s challenge on procedural fairness that the written statement of the Complainant as well as the recordings are not submitted at arbitration as they felt it not to be necessary as she was available to testify orally, in person. He articulated that the ELRC Collective Agreement of 2013 code of conduct does not limit anyone from any government department to initiate or chair enquiries as he has also done the same in other government departments and colleges. He made it clear that this was nothing new in public service. On legal representation at hearings, Mr Mathe responded that Presiding Officers are granted the discretion to make such decisions in their respective cases. He argued that in any case, no party was represented by a Legal Practitioner at the hearing.
31. He clarified that the college could have suffered reputational damage if it was established that students were awarded marks not acquired academically. Parents would have also asked how a student went outside the premises during learning hours. This would have also been unfair to other students who work hard for their marks. He submitted that by asking for two minutes of her time, the Applicant wanted to abuse his position for personal gain. He was also trying to lure her outside for this act. He contended that no education can be given outside the gate. Mr Mathe therefore reasoned that there would have been public interest in the matter and that is the reason the college had to act.
32. The fifth witness of the Respondent was Ms Abigail Pinkie Mdaweni. She is a Social Worker and the student reported the matter to her. The complaint was that the Lecturer had made advances to her or sexually harassed her. The student was 21 years old at the time. She asked her to write a statement. The student explained the entire incident to her and showed her whatsapp messages and a passout signed by the Lecturer. She also listened to the voice recordings presented by the student. To Ms Mdaweni, it sounded to her that the Lecturer was asking the student to be intimate with him in exchange for marks. Ms Mdaweni stated that she had worked with the Applicant at the same campus for about two years prior to this incident. She clarified that she does not have a close relationship with any Lecturer at the college and she regards them as just colleagues.
33. Ms Mdaweni elaborated under cross examination that the reason she asked the Complainant to write a statement was due to what she witnessed on the whatsapp messages as well as the voice recordings. She could not remember neither exact dates nor precise words. Ms Ndaweni averred that the student was terrified when she came to see her. She was adamant that this was a sexual advancement towards a student as it was meant to lead to that. She defended and sustained her view on this point even though she conceded that sexual words were never made literally by the Applicant. She further stated that as a Social Worker, students come to her for assistance as it is part of her role. She could not recall whether the Applicant called or texted the Complainant to come to him. She persisted that she can remember these words, “Give me two minutes of your time”, “think like a girl”, “go outside”, “meet me at Veritas”, “I’m going to be the one marking”. As a Social Worker she provided her professional insight that she knows how things are said to victims. She could not remember details when challenged by the Applicant.
34. The sixth witness of the Respondent was the Presiding Officer of the disciplinary enquiry, Mr Doctor Phaka. He is employed as a Deputy Principal at Western TVET College. He testified that he refused Legal Representation as the matter was not complex. The Applicant did not argue against his decision at the time. He stated that the hearing was difficult and ran over six or seven days. As a Chairperson, he averred that he was patient, even though the Applicant’s attitude was bad and at one point decided to leave and threatened that he will report him to the Public Protector. Mr Phaka found it problematic that the Applicant rotated on one question, was sometimes irrelevant and did not provide good answers but he still gave him a chance. At one point he felt that he was pushed to tell the Applicant that he will give him only five minutes as he could not be allowed to rotate on one question the whole day.
35. Mr Phaka maintained that there was nothing irregular in allowing the Respondent to be represented by an external initiator. This was mainly because this is allowed by the PSCBC Resolution and the initiator is a qualified employee of the government. After much wrangling, the parties agreed to ignore the PSCBC and focus on the ELRC resolutions. He continued to sustain his argument that the ELRC does allow the employer to appoint an initiator from public service. He maintained that even the Public Service Act does not disallow that. His sanction was based on the nature of the misconduct and he referred to his sanction document.
36. When challenged on the contradictions between witnesses, Mr Phaka responded that these are possibilities but as a Chairperson there are things that he must consider, therefore he may not consider the contradictions that may not have an effect on the decision taken. It was thus his view that there were none serious enough to change his decision.
37. Under cross examination, Mr Phaka maintained his finding that the Complainant was indeed the Applicant’s student. He further indicated that there was no part-time stated in the charge.
38. On the challenge regarding legal representation, Mr Phaka responded to the Applicant that he chose not to make submissions on why he should be granted legal representation.
39. He maintained that he was correctly appointed by he CEO of the college. This was the same for the initiator as well. He responded to the Applicant that discipline is the responsibility of the employer. He rejected the Applicant’s accusation of bias as he works in one organization (government) with the initiator and has only met him through meetings. He asserted that knowing someone does not automatically translate into bias. Despite being asked by the Commissioner to challenge Mr Phaka on how this could have caused him to suffer any prejudice, the Applicant failed to accordingly deal with it.
40. Mr Phaka further indicated that he informed the Applicant that he could bring a Union representative if he so wishes but he elected to represent himself.
41. Mr Phaka countered the Applicant’s challenge that the words he used were of a sexual nature and thus a sexual comment, this was followed by his clarification that he does not mean that he was found guilty of a sexually related comment but specifically for the charges against him. He further referred to how he dealt with this issue in his outcome. He sustained his finding that the student was a child and was violated by the Lecturer.
42. The Applicant testified a sole witness to lead his evidence. He was duly sworn in and testified under oath as follows:
43. The Applicant started his evidence in chief by complaining that the college refused to disclose some documents to him therefore he was unable to fully prepare for the case. He also complained that the first witness was coached but could not confirm by whom nor how.
44. With regards to the issue at stake, he stated that the Complainant arrived in his class and asked to speak to him privately. He continued that she informed him that her son was sick and needed to go home. He added that he then instructed her to come back after 30 minutes and issued her with the exit permit. That was the last time he spoke to her.
45. The Applicant argued that he was entitled to issue the permit in line with the college policy. The Applicant was resolute that he never texted her to inform her that she had failed. He correctly pointed out that such text was never produced at arbitration. He attacked the Complainant as self-contradictory in that she said her son was not sick but at the hearing she said the son was sick. The audio played in this regard was inaudible.
46. In 2018, the Applicant testified that he was a full time Lecturer, not part-time. He presented a register that indicated that her name does not appear in her class list. He pointed out that her name appears in the part time class but he was not a part time Lecturer.
47. The Applicant referred to an audio recording from the hearing whereby the young lady said that he was teaching her alone, thus highlighting that her version is not true. He further stated that Ms Matsemela was never HOD, thus does not allocate students to classes as this is handled by Administrators. The Applicant further denied that he was teaching in the afternoon.
48. The Applicant declared that a week before exams, the Complainant asked him what she must do so that she can qualify. He stated that this was impossible as rewrites were stopped in 2010 and thus would have been against the college assessment policy. He thus avowed that he never gave her a rewrite in 2016. In any case, he submitted that marks were to be submitted by 26 September 2018 therefore no tasks would have been accepted after that. He further specified that for marks to be changed, they have to be taken to Programme Manager and then finally to be captured by Administrators. It was therefore his case that it would have been impossible for him to change as marks would have been already been submitted. In essence, the Applicant specified that he never wanted sex from the Complainant as she claimed.
49. On the issue related to Veritas, the Applicant played another audio recording to show that the Complainant was not even sure about which Veritas was referred to.
50. The Applicant denied discussing marks with her as well as telling her to think like a girl. He denigrated the witnesses about the actual numbers of recordings they said they listened to. He stated that he also found it bizarre that she said she wanted to escape him as he was never a threat to her.
51. He defended his issuance of the exit permit as he has issued many of these documents to a lot of students before. He was pained by the suspension and the charges that were instituted before he was asked for his version of events. He also denied asking her for two minutes of her time.
52. Under cross examination, the Applicant challenged the Presiding Officer for being biased. He argued that the Principal does not have the authority to appoint the external initiator and it was outside of her function in terms of section 50 of the FETC Act. When asked to point the subsection that refers to Principal, he chose to obfuscate and skip the contestation to a further submission that there is no ELRC provision that allows Principals to delegate outside the college. He was adamant that the Principal should have appointed one of the college staff members to be the initiator at his hearing. When asked to specify which rule was broken by the Principal in appointing this external initiator, no clear answer was forthcoming. He stood his ground through an overarching response that the ELRC has no provision for such actions.
53. On procedure the Applicant responded that he received the notice to attend the hearing on the 03rd of July 2019 and then attended the hearing the following day on the fourth of July 2019. As a consequence, he attested that he was not allowed sufficient time to prepare for the hearing. This was followed by a concession that the 4th of July 2019 was a pre-hearing whereby no witnesses were called. An attempt to revise the concession was made by his successive statement that because he was asked to enter his plea and there were discussions about what the case of the college was and what his case was, representation, as well as direction on how the process of the hearing will unfold, the hearing had actually started. He could not recall the date of the next sitting but later specified that the hearing resumed more than two weeks afterwards.
54. The Applicant also raised another issue that he was not allowed access to written witness statements that he was entitled to. When he requested the hearing to adjourn so that he could be provided with the statements, this was denied. He further complained about being stopped for repeating when he was asking questions. With regards to the other witnesses, the Applicant conceded that he was granted time to conduct cross examination. On presenting evidence, he stated that he was granted a “partial” opportunity to present his evidence. He specified that the recordings he wanted to present after the first witness were rejected as he failed to reveal them at the beginning of the hearing. Documents from SACE were also rejected.
55. The Applicant conceded that the Presiding Officer was fair in allowing parties to submit written arguments on the issue of Legal Representation. The Applicant further responded that there were lots of postponements during his hearing.
56. The Applicant complained that he appealed the outcome of his hearing to the Minister of Higher Education and Training but his attempts were unsuccessful.
57. On the reliability of the witnesses, the Applicant responded that the witnesses should have been asked why they would lie as he has no idea why they would do so. He never posed those questions to them.
58. The Applicant was asked whether the student would know that for marks to be changed she needs to be his student and must be assessed. He responded with clarity that the question should have been posed to the Complainant.
59. The Applicant made it clear that he denies all allegations against him.
60. When asked about the recording, the Applicant replied that he does not know what the witnesses heard as they did not remember the exact words that they said they heard in such a recording, he thus accused them of committing perjury. As a result, he remained none the wiser on what is the truth.
61. A clear question was put to the Applicant that as his version is that the Complainant was a drop out in 2018, why did he then issue her with the exit permit? He countered that at the time of issuing the permit, he did not know whether she was a student at the college or not. He asserted that he found out later when he requested records whereby he saw her assessment records in Ms Jele’s documents that specified, “No longer attending”. There was also another document that showed that her Sustainable Tourism was cancelled.
62. It was the Applicant’s strong assertion that the Complainant had dropped out in second and third term and only emerged in 4th term whereby they met. In his defense, he argued that he assumed that she was a student. He further pointed out that Ms Jele said that she never saw her in his class. He denied that there was an arrangement made for him to teach part-time. Furthermore, there were no assessment records nor script presented. He accused Ms Jele of lying as he maintained that he had only one group for Tourism at the time. Ms Nkosi was also said to have lied about losing the scripts as all are kept in one file. Their testimonies were referred to as fabrications and full of contradictions. Specific examples thereof were stated on record.
63. The Applicant confirmed that in 2017 he was on good terms with the Complainant. In 2018, he stated that he only saw her on that fateful day and would assume that they were still on good terms.
64. Closing arguments were presented in writing by both parties.
ANALYSIS OF EVIDENCE AND ARGUMENT
65. I have taken the full body of evidence before me into account as per the elucidation held in IBM South Africa (Pty) Ltd v CCMA & Others [ZALACJHB] 15 (handed down on 19 April 2016) but shall only refer to salient submissions crucial for my findings and determination of the dispute.
Procedural fairness challenge:
66. On procedural fairness, the Applicant challenged the Chairperson for being biased as he knew the initiator, I found the denunciation misguided as the Chairperson explained the nature of their relationship as colleagues. Nothing was submitted to indicate anything beyond that. He further argued correctly that knowing each other does not automatically translate into bias. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC);  9 BLLR 833 (LC) 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. As a consequence from this case law and in terms of schedule 8 of the LRA, the Respondent clearly complied with the key requirements to meet the threshold for procedural fairness.
67. The Applicant ferociously slated the college for appointing an external initiator and presiding officer from other government institutions but could not make out a case of how he had suffered prejudice in that regard. In his closing arguments on paragraph 17 he dealt with the issue by stating that, “ The commissioner in the arbitration hearing requested to know how the presence of Mr Nkosi affected the proceedings of the disciplinary hearing. Section 6(2)(a)(i) of PAJA provides for a tribunal to set aside a decision that was taken by that the administrator who was not authorised to do so by any empowering provision. There is no statute that permits the principal to appoint Mr. Nkosi as an initiator. Furthermore, PAJA provides that a decision that is taken by an administrator to be reviewed and set aside, if the following conditions are met: Section 6(2)(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with.” This clearly shows that even after having some time to reflect on the issue, the Applicant could not address any prejudice suffered from having Mr Nkosi as the initiator. The statute cited by the Applicant is also wholly irrelevant to support his argument as it deals with decision makers when the initiator is not, in fact, a decision maker in a disciplinary hearing.
68. A lot of time was spent by the Applicant demanding to get reports/ statements that were not in the bundles of documents. I found these actions to be an unnecessary indulgence as the decision to dismiss was not reliant on such documents. In addition, the Respondent did not rely on them to make out their case at arbitration. Furthermore, on the Applicant’s complaint that the Chairperson allowed the hearing to proceed without being provided with documents that he was seeking from the college, Mr Phaka elucidated that he could not wait for something that does not exist, as the initiator was clear that he does not have those demanded documents.
69. On the challenge related to legal representation, the Applicant also spent a significant amount of time arguing about interpretation of PAJA and the ELRC Collective agreement about not being granted legal representation. However, no specific sections or items from the documents were cited to support his argument for automatic right to legal representation. The Applicant failed to raise the issue of comparative ability at the hearing as a troubling point. He raised it at arbitration, unfortunately, after the fact. When the Presiding Officer afforded both parties an opportunity to submit written submissions on the legal representation application, the employer’s representative submitted same but the Applicant elected not to submit any papers. In this manner, he only has himself to blame. The Applicant also conceded that it was fair for the Presiding Officer to ask for written submissions but he failed to submit as agreed.
70. I also found all issues related to SACE to be irrelevant in this determination as SACE is not the employer and I was not provided with any binding clauses.
71. Mr Phaka countered the Applicant’s challenge on not giving him enough time by stating that he was rotating on one question and he could not allow that as that would have made the process unfair. This was in spite of the Applicant’s insistence that it was his right to do so and thus wanted to abuse the time he was given. He felt that he had given the Applicant sufficient chances and he abused it, that is the reason why he had to call him to order and told him that they cannot do this the whole day. Moreover, he felt that the Applicant was attacking some of the witnesses but he allowed him to proceed. The Applicant was insistent that the Chairperson was wrong and said to him that, “I told you that I have a hundred thousand questions to ask my accuser but you disallowed me to test her evidence and put my version to her”. Mr Phaka was consistent that he allowed him a chance to do so but had to intervene when he was rotating on one question. He felt that he had granted him sufficient time to rebut her evidence.
72. Whereas the Applicant complained about how the Chairperson stopped him from asking questions, I accepted Mr Phaka’s explanation as reasonable. This is simply due to the fact that he exhibited some of the behaviours mentioned during the arbitration process as well.
73. While the Applicant was arguing about limitations of the Principal’s powers in terms of section 50 of the FETC Act, he refused to answer the question of whether the word “Principal” appears anywhere on this section. This was simply because he could not sustain his argument as Principal is not mentioned in that particular section. The Applicant was further cautioned to avoid appearing as evasive. After much wrangling, he could not specify any law that prohibited the Principal for appointing the “external” initiator.
74. The Respondent acknowledged in its closing arguments that there was a breach of item 5.1 of the code in that it provides for five working days’ notice. The Respondent went on to illuminate that the non-compliance was cured by affording the Applicant a pre-hearing on the 4th of July 2019 and a hearing at a later date. Consequently, I find that the challenge regarding being given one day notice to appear at the hearing was mischievous as the Applicant conceded that it was a pre-hearing and that no witnesses were called on that day. This highlights that no evidence was led on the day, thus no prejudice regarding lack of time to prepare was suffered. A plea cannot be equated to evidence-in-chief. Witnesses were called more than two weeks after what was referred to as a pre-hearing. This is beyond the requisite 5 days’ notice in terms of ELRC Policy and is thus fair.
75. Accordingly, I find that the procedure adopted in this matter was fair.
Substantive fairness challenge:
76. The awareness, knowledge and seriousness of the rule was never placed in dispute. The Campus Manager made reference to the seriousness of the offence in terms of the Professional Code of Conduct of Educators and this was not disputed. What the Applicant placed on record was a bare and unwavering denial.
77. At a time when our country is struggling with the scourge of sexual harassment, misogynistic, chauvinistic and exploitative practices by people in positions of power, Mr Khanyi, as a Lecturer, elected to conduct himself in a similarly improper, disgraceful, unacceptable manner as charged. When he cross examined the young girl that reported him for his despicable actions; on a number of occasions when he hit a brick wall on an issue he said he will get back to it or he is parking the issue. However, in the end he failed to go back to a lot of those issues. This showed that he struggled to shake her damaging testimony.
78. The Applicant failed to cross examine nor challenge Ms Jele on the Applicant’s state when she went to report to her. This is vital as this is the point which led Ms Jele to conclude from her observation of the student’s state that she was genuinely telling the truth.
79. The Applicant never put it to Ms Jele that the audio recording she testified on does not exist, instead he argued that some parts are missing.
80. While the Applicant put it to Ms Nkosi that the script with his signature only exists in Ms Nkosi’s mind, I find that it is indeed possible that the script could have been lost during the period when Ms Nkosi was not at work due to her ill-health and this is compounded by the fact that she also moved offices. These two points were not disputed and there is no motive raised that she would lie about the matter. It is crucial to also bear in mind that she stated that she met with the student after the complaint was reported. Henceforth, no collusion was possible.
81. The Applicant argued fiercely that the student was a drop out and he was not her Lecturer nor a part time Lecturer in 2018, but the question will always remain, why did he issue the exit permit for her? It would be absurd for this crucial document to be signed by any random Lecturer. Ms Nkosi further articulated that she saw his signature on the lost script, thus confirmed to her that he was the Complainant’s Lecturer. The Presiding Officer expounded that the words part time are not what a feature of the charges.
82. No evidence was led on how the student would have known the process of how marks are changed nor who the responsible persons would be in this regard. What is apparent in this matter is that the student had no reason to disbelieve that a Lecturer can change marks of a student.
83. The power dynamic between the Lecturer and the student is too vital to be ignored. It is also the core of charge two. Whereas the Applicant downplayed the issuing of the exit permit as a non-issue, the Respondent clearly saw that as an abuse of his powers as stated in the second charge. I agree with the Respondent. The Applicant should have exercised that power responsibly.
84. This entire case essentially comes down to this: It is common cause that the Applicant met with the Complainant and had some discussion with her in private. This led to the Applicant in his capacity as a Lecturer issuing an exit permit to the Complainant, a young female student. She went on to report the nature of their dialogue to another Lecturer, Social Worker and Campus Manager.
85. What is disputed are the contents of that exchange as well as the reason for issuing the permit. This forms the subject of the two charges proffered against the Lecturer. On the latter, the Applicant wrote, “To whom it may concern, Allow the student Mosehlana DD to pass at the gate, reason family matters”. The Applicant conceded that he typed this without verifying the validity nor accuracy of the student’s reason for the request to exit the premises. It goes without saying that the authors of this rule that gave Lecturers powers to authorise exit permits for students would have never expected any random Lecturer to do so without asking questions nor verifying the validity of such requests. Moreover, it can never be acceptable that a Lecturer can issue same to someone that is not a student of the College. The Lecturer’s actions can never be acceptable under these circumstances.
86. In this case and if the Applicant’s version was to be believed, the Applicant did not verify and would sadly rue the day he failed to conduct such basic due diligence. If the student’s child was indeed sick as he alleged that he was told, the Applicant failed to write that in the exit permit nor ask for a sick note for verification purposes. This is the bare minimum done routinely by Managers/ Supervisors/ Leaders in all workplaces. The Applicant as an educated Educator, failed to exercise his powers responsibly, hence his version that he is allowed to issue this exit permit blindly is rejected as improbable. The evidence points towards him issuing the exit permit as an abuse of his power in order to gain personally as charged.
87. The argument around whether the Complainant’s son was sick at the time or not shows the importance of verifying the reasons why an exit permit is sought by a student. The Applicant should have done the bare minimum to verify.
88. The Applicant’s version that the Complainant informed him that her son was sick would have only made sense if indeed she had then left the college premises after she was issued the exit permit. She never did so and instead went on to report him for his repulsive behaviour.
89. The Applicant was evasive on the vital question regarding the reason around why a Lecturer is clothed with powers to grant permission for students to exit the college during teaching hours. He pronounced that it depends on whether the Lecturer is on good terms with that student making the request. I found this response to be reckless coming from a Lecturer. It was put to the Applicant that this is done to maintain order so that Lecturers can know where their respective students are at all material times. The Applicant rejected this and illuminated that this is done in line with the attendance policy. While this may be the case, the Applicant further conceded that he will never know the attendance of a student that he is not teaching and thus did not check her attendance before issuing her the exit permit. He further stated that he did not check whether she was attending classes or not before releasing her as he was not her Lecturer. This is patently incongruous.
90. In the Applicant’s view, any Lecturer was responsible for the Complainant and can thus issue an exit permit without checking with her actual Lecturers that are responsible for her at the time. He further proclaimed that it is not required to ask or consult another Lecturer to grant the permission. He thus did not refer her to her actual Lecturers to ask for the permission. I found this rant by the Applicant to be illogical as his key defense is based on his case that the young lady was not her student. This is not what a reasonable person/ responsible Lecturer would do. This was further compounded by his admission that he did not check the validity of her reason for seeking the exit permit, if that was the case.
91. The Applicant’s version is also destroyed by his statement that he told her to come back after 30 minutes. Under any circumstance, it would have been impossible for the student to walk out the college premises, arrive home, attend to a sick child, probably take the child to a Doctor or clinic, take the child back home to the grandmother and be back to the College after 30 minutes. This rendered his version implausible.
92. The Applicant’s key defense is based on his insistence that the Complainant was not his student. I found this submission unhelpful to his case as even if I were to find that she was not his student this would point to the Applicant’s failure to refer her to her own Lecturer to ask for an exit permit. The Applicant dismissed this sensible act as a non-requirement in the college policy. I found this to be an absurdity that points to the thoughtless-ness that led to this case. The Applicant should have simply never authorised the exit permit if she was not his student. He was clearly not compelled to do so as she had her own respective Lecturers. As he saw himself empowered to issue it, he should have never done so without checking the veracity thereof. This was a reckless abuse of his powers as charged. This is amplified by the fact that he tried to allude to the student having a grudge with him since 2016.
93. With regards to the conversation between the two individuals, no one else besides them will ever know what was said. For purposes of this arbitration, I assessed both versions for credibility, reliability and probabilities. I found the Complainant to be credible as she reported the matter immediately, had no reason to lie and had nothing to gain from any possible disciplinary action on the Applicant.
94. The Applicant demanded concise words and held it against witnesses that they do not recall exact evidence and words verbatim. I found this attack disingenuous as the incident was a few years ago and it is trite that undisturbed, photographic memory is a very rare phenomenon over a period of time. The test is also different when determining matters on a balance of probabilities which is what arbitration is about as opposed to the standard of beyond reasonable doubt employed by the courts. The Applicant demanded a higher standard of proof than what is required for labour matters.
95. During cross examination, the Applicant stated, “Mr Mathe, just give me two minutes of your time, I just want to deal with this…” I found this phrase vital as it is the exact phrase that was reported by the student against him. As a consequence and for purposes of the arbitration, it showed the propensity of the Applicant to compose such terminology.
96. The Applicant tried to paint the student as someone that wanted him to be dismissed as she held a grudge against him from an incident in 2016 whereby she asked him to do something illegal for her and he refused. This was never put to her under cross examination and the Applicant never reported it. Moreover, this claim was nullified by the Applicant’s further contradiction that they were on good terms, since 2017. He destroyed his claim by also stating that she used to come to him for assistance from time to time. Consequently, I found that there appears to be no malicious intent from her complaint.
97. The Applicant was also evasive on the question regarding why there were two subjects that were not cancelled from the Complainant’s exam admission permit. He insisted that Ms Jele was her Lecturer at the time that she wrote two assessments and dropped out. At the time of the reported incident, the Applicant could not identify who her Lecturer was.
98. In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and Others  (1) SA 11 (SCA) the Court held that where a commissioner is faced with two conflicting versions before him the Commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The question that should be answered is whether the probabilities favour the party that bears the onus of proof. The Court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case, the arbitrator should therefore resort to credibility where the probabilities fail to point which version embraces the truth more.
99. The Respondent’s witnesses , specifically both Ms Jele, the Lecturer and Ms Ndaweni, the Social Worker, were clear and unwavering in their testimony on what they observed when the Complainant approached them to lay her complaint. They painted a picture of a distraught young lady that was “overwhelmed” and “terrified” about what her Lecturer had proposed to her. This is very disconcerting. It also fundamentally serves as a key piece of undisputed evidence. I have no reason to doubt their sincerity and as a consequence I found them credible.
100. Ms Jele has worked with the Applicant as a fellow Lecturer for nine years and never had issues with him. Ms Mdaweni has also worked with him for two years and there was nothing presented to suggest any animosity nor prior issues with the Applicant. As a result, none of them had an axe to grind and as a consequence no reason to fabricate evidence. The fact that their recollections were mixed up shows that they were authentic in their testimonies and no one was coached nor was there any collusion to conspire against their former colleague.
101. All three witnesses from the college (the Complainant, Ms Jele and Ms Nkosi) were consistent that the Applicant taught this student Maths Literacy in 2018. The Applicant countered their evidence in that the college never produced the attendance registers that she would have signed if he was teaching her. While admitting that the student was a part time student, the Applicant refuted the college’s case that he was a part time Lecturer. As Ms Nkosi attested that she saw the Applicant’s signature on the script, I see no reason why she would lie about this matter. The Applicant could also not come up with any reason why she would deliberately present falsehoods about him in this manner.
102. The Applicant successfully pointed out inconsistencies and contradictions of testimonies amongst the Respondent’s witnesses. The Respondent also conceded to this in its closing statement. I also could not attach much weight to their hearsay evidence. This is robustly luminous particularly on whether there were calls/ texts between the two protagonists, how many times they met, words that were used, the number of recordings made, and so forth.
103. Conversely, the contradictions pointed out by the Applicant were in the main an inconsequential red herring and could not overturn the material evidence led by them on what they witnessed directly when the young lady approached them “overwhelmed” and “terrified”.
104. I found the Complainant to also be credible and reliable as it is clear that this is someone she used to trust as she used to approach him for assistance. Her version is also probable as opposed to that of the Applicant. They clearly enjoyed a jovial relationship until that fateful day when the Applicant abused his powers.
105. The Complainant raised her fears and concerns about the Applicant in her evidence. Ms Ndaweni noted concerns around safety of female students and Lecturers if this type of conduct is condoned in the College. It clearly points to the seriousness of the offence and thus the appropriateness of dismissal as a sanction. The HR Manager also presented serious aggravating factors during cross examination as stated above in his evidence.
106. The Applicant expressed no remorse about anything, save to even admit lack of proper oversight on issuing the exit permit without applying his mind. In Department of Labour v GPSSBC (2010) 31 ILJ 1313 (LAC) the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge the wrongness of his/ her conduct.
107. The conclusion is thus inescapable, the Applicant authored his own misfortune. For brief reasons stated above, I find that the Respondent has discharged the onus of proving on a balance of probabilities that the Applicant’s dismissal was both procedurally and substantively fair and that dismissal was the appropriate sanction. I therefore present the award as follows:
108. The Applicant’s dismissal was both procedurally and substantively fair.
109. The dismissal of the Applicant by the Respondent is upheld.
110. I make no order as to costs.
Dated and signed on the 05th of July 2021.