Panelist: Thabo Maruping
Case No.: ELRC857-20/21EC
Date of Award: 14 July 2021
In the ARBITRATION between:
(Union / Applicant)
Department of Higher Education and Training: Eastern Cape
Applicant’s representative: Ms. Nokhuthala Siqwayi
Applicant’s address: PO BOX 1922
4700 Telephone: 083 243 9813
Respondent’s representative: Mr. Sandile N Nkomozibomvu
Respondent’s address: Department of Higher Education and Training: Eastern Cape
Telefax: 073 371 3520
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration concerning an alleged unfair dismissal was heard on, 24 July 2021 on the Zoom Video Conferencing Platform. The applicant, Ms. Nokhuthala Siqwayi represented herself. The respondent was represented by Mr. Sandile Nkomzibongo, a professional officer within the Labour Relations Directorate of the Respondent.
2. One bundle of documents was handed in as evidence named, “Bundle A” from the Respondent.
Application for Legal Representation
3. Both parties attended virtual hearing accompanied by their advocates, Applicant representative Mr SM Hadebe, and Respondent representative Mr. T Nkele. The council only received a letter of intend to apply for legal representation from the Applicant’s representative. The Respondent on the other hand stated that they have not received the formal application from the Applicant, but had no intension opposing the application. There was no objection by the both parties. I have considered the submissions of both parties. An extempore ruling was made and to follow is a short ruling with reasons.
4. Both parties ought to have acted with a greater sense of urgency to bring a formal application which dealt legal representation. The Applicant representative submitted a letter dated 25 May 2021, requesting the council to consider their application for legal representation. The Respondent representative had not attempted to make any application, but submitted that they were not objecting the application of the Applicant.
5. Both parties were allowed to make oral submissions. The Applicant submissions were that, there was no disciplinary hearing held. That the Applicant was unfairly dismissed and no dismissal procedures were followed.
6. The Respondent submission was that the Applicant was summarily dismissed for misrepresentation. He stated that she was required to be honest as the question clearly stipulated what was requested.
7. Before me is an alleged unfair dismissal. The ELRC Constitution, Rule 17.4 restricts legal representation only with regard to disputes relating to dismissal based on incapacity or misconduct.
8. I do not consent with the parties in granting legal representation, after having considering the factors listed above. I am of the view that the matter is not of complex nature, questions of law, and public interests submissions were not persuasive in granting grand legal representation. I also considered the comparative ability of the parties and considered that both will be able to deal with the arbitration.
9. The application for legal representation was accordingly denied and the legal representatives were excused from proceedings.
10. The applicant was employed as a Lecturer for Mathematics and Mathematics Literacy at the King Dalindyebo, Technical and Vocational Education and Training College (TVET), Mthatha Campus. She started working on, 05 October 2020 and was dismissed, 23 March 2021 for giving false information on her application for the Lecturer: Mathematics and Mathematics Literacy. Her gross salary per month was R 23 256.50 per month. A pre-arbitration agreement was concluded prior to the commencement of the hearing, and signed by both parties.
Issue to be decided:
11. I must decide whether the dismissal of the Applicant was substantively and procedurally fair.
SURVEY OF EVIDENCE
12. The Respondent, Sandile Nkomzibongo, testified under oath. He led his evidence through bundle of documents; annexure 1, and testified that the Applicant declared that she was never dismissed from employment on the Z83 application form. He further testified that the Applicant declared that, she was never subjected to any investigation with current or previous employer on the Interview Integrity form. He averred that the print out in Annexure 2 confirmed that the Applicant was previously dismissed.
13. He referred to Annexure 9, which is a letter unblocking the Applicant from the persal system with the previous employer. He confirmed that it was prove that the Applicant was previously dismissed by her employer. He argued that the Applicant gave false information in her Application. He referred to Annexure 4, under security clearance and vetting which states, “Also note that should it be found that the information provided is fraudulent your appointment will immediately terminate”. He further stated that the Applicant read, and signed Appointment letter. He argued that this confirmed that the employee mislead the Respondent, and was thus consequently charged for Misrepresentation – Gross Dishonesty. He alluded that the charge is of a serious nature and warranted a dismissal. He testified that the Applicant was summarily dismissed.
14. During cross examination, the Respondent stated that the question on the Z83 form was whether she was previously dismissed or had been previously convicted criminally. He further stated that the Applicant was employed October 2020 and the unblocking was authorized 25 January 2021.
15. The Respondent’s witness, Mr. Lunga Mswane, Senior Manager Corporative Services testified under oath. That the Applicant was employed as Mathematics Lecturer at Umtata Campus. He stated that the Applicant’s appointment was rejected by the persal system. He testified that they investigated, and found out that the Applicant was previously dismissed by her employer. He averred that they had a meeting with the Applicant to inform her about the predicament they had. He further stated that the Applicant told him she knew about the blocking, and that she had a letter unblocking her from persal. He testified that the system will not allow any applicant who was previously blocked, unless authorization to unblock is issued.
16. During cross examination, the witness stated that it was duty of the previous employer to unblock her. He further stated that if the Applicant was unblocked her appointment was going to be confirmed.
17. The Applicant, Ms Nokhuthala Siqwayi, testified under oath. She stated that she applied for the position knowing she was unblocked from persal. She argued that she served her 12 months suspension from persal, as a sanction for being previously dismissed. She stated that the delay was caused by the department to unblock her from the system. She reiterated that she declared NO on the Z83 form, as she was never convicted of any criminal offence. She further stated that she was given a dismissal letter, no disciplinary hearing, no charge sheet. She concluded that she consent to being previously dismissed by her previous employer.
18. During cross examination, the Applicant testified that her unblocking letter was dated, 25 January 2021, and that she applied for that position on, March 2020. She averred that her dismissal was unfair as she was not given an opportunity to give her side of the story. She confirmed that she understood the question on the forms Z83, and interview Integrity form.
ANALYSIS OF EVIDENCE AND ARGUMENT
SUBSTANTIVE FAIRNESS OF THE DISMISSAL
19. In considering the substantive fairness of the dismissal of Applicant for misconduct, the principles contained in Public Service Act: PSCBC Resolution 1 of 2003, Amendment to Resolution 2 of 1999: Disciplinary Code and Procedures for Public Service provide the following guidelines:
Section 4.3 states that, In applying Annexure A, the management must assess the seriousness of the alleged misconduct by considering:
a. The actual or the potential impact of the alleged misconduct on the work of the public service, the employee’s component and the colleagues and the public
b. The nature of the employees work and responsibility and;
c. The circumstances in which the misconduct took place.
20. The dismissal of the Applicant is not in dispute, and the Respondent is therefore required to prove that the Applicant contravened a rule or rules, and that dismissal was an appropriate sanction for the contravention of the rules. The procedural fairness of the dismissal is also in dispute. The standard of proof that is applicable in hearings of this nature is identical to the civil standard – “the employer must prove the case against the employee on the balance of probabilities”.
21. The Applicant was dismissed for Gross Dishonesty: Misrepresentation - in that she gave false information that on the Z83 application, and the Interview Integrity. That when applying for position Lecturer: Mathematics and Mathematics Literacy that she was never previously dismissed. The Applicant consent to being previously dismissed, and that she understood the questions posed on the forms.
22. I am satisfied, based on the arguments of the Respondent that the Applicant misled the Respondent when applying for the position. That the kind of transgression amounts to gross dishonesty and is a dismissible offence. I cannot accept the version of the Applicant that she declared “NO” on Z83 and Interview Integrity form, only answering to not being previously convicted for criminal offences. The evidence shows that there was a deliberate misrepresentation from the part of the Applicant.
23. I find that it was proven on balance of probabilities that the Applicant committed the misconduct. There is therefore evidence before me that proves that Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
24. I now turn to the element of the appropriateness of the sanction. The Respondent has argued that dismissal is appropriate taking into account the nature of the transgressions. It is therefore necessary to consider whether dismissal would be an appropriate sanction, and whether a lesser sanction would serve the desired purpose. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The case of Sidumo v Rustenburg Platinum Mines Ltd  28 ILJ 2405 (CC) dealt with the scope of commissioners powers when deciding whether the sanction of dismissal for proven misconduct is fair. The final decision whether the sanction of dismissal for proven misconduct is appropriate rests with the commissioner. I must therefore as impartial adjudicator consider all relevant circumstances in deciding whether the dismissal of the Applicant was the appropriate sanction initially.
25. The conduct of the Applicant was gross dishonesty. The Labour Appeal Court held that the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC): “This trust which the employer places in the employee is basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee.”
26. Having considered all the facts before me, including but not limited to, the gravity of the offence, the position of trust the Applicant was employed in and, the years of service of the Applicant I am of the opinion that the sanction of dismissal is fair and appropriate in the circumstances.
PROCEDURAL FAIRNESS OF THE DISMISSAL
27. In considering the Procedural fairness of the dismissal of Applicant for misconduct, the principles promulgated in terms of the Code of Good Practice for Dismissals in Schedule 8 of the Labour Relations Act, no. 66 of 1995, as well as Public Service Act: PSCBC Resolution 1 of 2003, Amendment to Resolution 2 of 1999: Disciplinary Code and Procedures for Public Service provide the following guidelines
Section 7.1 reads as follows: notice of enquiry:
a. An employee must be given notice at least five days before the date of the hearing disciplinary enquiry;
b. The employee must sign receipt of the notice, it must be signed in the presence of a fellow employee who shall sign in confirmation that the notice was conveyed to the employee;
c. The written notice of the disciplinary meeting must use the form of Annexure D, and provide:
i. The description of the allegation of the misconduct and the evidence the employer on which the employer rely on;
ii. The details of time, place and venue of the hearing and;
iii. Information of the rights of the employee to representation by a fellow employee or a representative or an official of the recognised trade union and to bring witness to the hearing.
Notice of Corrective Counseling: Once a matter has been referred for hearing by disciplinary panel, the chief executive officer or the chairperson of the disciplinary committee must issue a summons to the educator who has allegedly breached the code:
The summons must disclose:
1. The nature of the alleged breach;
2. The date, time and venue of the disciplinary hearing;
3. The educator’s right to be represented at the disciplinary hearing, including the right to legal representation;
4. The educators right to call in witnesses to give evidence and produce books, documents and other items to support the evidence of the educator’s case and;
5. The educator’s right to make written submissions against any recommendation of the disciplinary panel to the disciplinary committee.
28. The Applicants contention was that she was given a termination letter, referring to the false information she provided, when applying for the position with the Respondent. She stated that she was not given a hearing to states her side of the story. In the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (JR 782/5)  ZALC44; (2006) 27 IJL 1644 (LC);  6 BLLR 833(LC) held that the employer merely required to conduct an investigation, give an Employee or his representative an opportunity to respond to the allegations after a reasonable period and thereafter to take a decision and give the Employee the notice thereof.
29. I am satisfied that the based on the arguments of the Applicant, the Respondent failed to prove that the Respondent followed the fair procedures prior to the dismissal of the Applicant. I therefore, find that the dismissal of the Applicant to be procedurally unfair.
30. According to section 193(1) of the LRA, If the Labour Court or an arbitrator appointed in terms of this Act finds a dismissal unfair, the Court or the Arbitrator may –
a. order the employer to reinstate the employee from any date not earlier than the date of dismissal
b. order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonable suitable work on any terms and from any date not earlier than date of dismissal; or
c. order the employer to pay compensation to the employee
31. According to section 193(2) of the LRA, the Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless-
a. the employee does not wish to be reinstated or re-employed,
b. the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable
c. it is not reasonably practical for the employer to reinstate or re-employ the employee or
d. The dismissal is unfair only because the employer did not follow a fair procedure.
32. I hereby, base my decision under section 193(2)(d), the dismissal is unfair only because the employer did not follow a fair procedure.
33. I deem compensation to be a competent remedy, and that compensation amount must be just and equitable under these circumstances. I have considered various circumstances in determining what will be just and equitable. The Applicant had short service. The dismissal was only procedurally unfair. The Applicant is relatively middle age and there is potential that she may obtain other employment. The Applicant was dismissed on 23 March 2021, little over 3 months has passed since then.
34. Based on the above reasons I therefore conclude that just and equitable compensation would be that of three (3) months compensation.
35. Three (3) months compensation is therefore equal to R 69 769.50 (R 23 256.50 X 3). The Applicant has also confirmed that her bank details, known to the Respondent, had remained unchanged.
36. The dismissal of the Applicant, Ms Nokhuthala Siqwayi, by the Respondent, Department of Higher Education and Training: EC; is substantively fair and procedurally unfair.
37. The Respondent is ordered to pay the Applicant R 69 769.50.
38. The compensation must be paid in the same manner the respondent used to pay the Applicant, and in the Applicant’s known bank account.
39. The compensation must be paid by no later than, 30 July 2021.