ELRC644-20/21 EC
Text
ELRC435 20/21GP
Text
Award Date:
13 October 2021
NEHAWU OBO N MOSHOBANE “the Applicant”
and
DEPARTMENT OF HIGHER EDUCATION AND TRAINING “the Respondent”
ARBITRATION AWARD
Case Number: ELRC435 20/21GP
Last date of arbitration: 13 September 2021
Final closing arguments submitted in writing on: 23 September 2021
Date of award: 13 October 2021 (Extension granted)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
Details of hearing and representation
1. This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was held at the premises of the Westcol TVT College in Randfontein. The last day of the hearing was on 13 September 2021. The parties submitted written closing arguments on 23 September 2021.
2. The Applicant is NEHAWU on behalf of Mr Moshobane, N, represented by Mr Mokgosi, P, a union official. The Respondent is the Department of Higher Education and Training (“DHET”), represented by Mr Khoza, B, an attorney. The issue of legal representation was dealt with and allowed in terms of Rule 25(1)(c)(i) of the CCMA Rules Rules 17.4.2 and 17.4.2.1 of the ELRC Constitution, Part C, Dispute Resolution Procedures.
3. Mr Myeza, M, acted as interpreter.
Issue to be decided
4. The dismissal of the Applicant is not in dispute. I must determine whether his dismissal was substantively fair. The Applicant does not dispute the procedural fairness of his dismissal.
Background to the dispute
5. The parties agreed on a common bundle of documents, marked as Bundle A.
6. The Applicant was employed by the Respondent at Westcol TVET College (“the College”) as a PL1 Lecturer since 17 February 2014. He earned R292 854,00 per annum at the time of his dismissal on 29 October 2020.
7. The Applicant was charged in terms of the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC), with Charge 1, i.e. Improper Conduct in that on or about 16 August 2018, he conducted himself improperly in that he forced people or staff on duty to attend a meeting that was not properly arranged and/or authorised in terms of the collective agreement Resolution 3 of 2014 of the General Public Service Sector Bargaining Council (GPSSBC).
8. The Applicant was charged with Charge 2, i.e. Intimidation, with an alternative charge of Victimisation, in that on or about the 16 August 2018 at or near Randfontein Campus, he intimidated a fellow colleague, Ms Chantal Labuschagne when he shouted at her and ordered her to attend a meeting at Central office of the Western TVET College that was not properly arranged and or authorised by Management.
9. The Applicant was found guilty of both charges following a formal disciplinary hearing.
10. The parties held a pre-arbitration meeting and submitted the signed minutes as part of the record.
11. The parties agreed that the Applicant was employed by the Respondent at Westcol TVET College (“the College”), Randfontein, as a PL1 Lecturer since 17 February 2014, and that he earned R292 854,00 per annum at the time of his dismissal on 29 October 2020
12. The following issues were recorded as being the only issues in dispute:
12.1 The interpretation and application of Resolution 3 of 2014 of the GPSSBC (“the Resolution”), in respect of whether the Respondent was not entitled to charge and dismiss the Applicant on the grounds of his alleged non-compliance with the provisions of the Resolution.
12.2 The Applicant argues that he did not arrange the meeting that led to his dismissal, but that he was invited to the meeting by a colleague from the Krugersdorp central campus, Mr Mpo Tshamano. The Applicant thereafter communicated the message of the meeting to other colleagues at the Randfontein campus.
12.3 The Applicant as well as other employees were entitled to attend the meeting, and he did not intimidate anybody.
12.4 The Respondent alleged that the Applicant intimidated a colleague and forced staff members to attend the meeting that has not been arranged in accordance with the provisions of the Resolution.
13. The Applicant denied all the allegations.
14. The Applicant does not dispute the procedural fairness of his dismissal.
15. The relief the Applicant seeks from this arbitration hearing is retrospective reinstatement without loss of benefits.
Summary of evidence
The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The recordings of the proceedings will reflect the complete testimony of the witnesses.
Respondent’s case
16. Mandi de Klerk (“De Klerk”) testified under oath that she is an education specialist at Westcol TVET College. The manages the Business Studies Division. She has 21 years’ service. She was the acting campus manager on 16 August 2018.
17. A85 reflects the email she sent to Ms Machaka (“Machaka”), the campus manager. Her email resulted in the report by Machaka as reflected in A87. De Klerk read the contents of both documents into the record.
18. There was no meeting for 16 August 2018 arranged in terms of the Resolution. The Applicant did not have the authority to arrange meetings with staff and had no authority to disrupt learning. The effective teaching and learning were disrupted by the Applicant on that day. The students were prejudiced. There was no justification for the interruption of learning.
19. De Klerk testified that Chantal Labuschagne (“Labuschagne”) reported to her that she had been intimidated by the Applicant, and that he forced her to attend a meeting. The intimidation and disruption caused by the Applicant resulted in students not been assisted with administration issues, as Labuschagne and other staff could not perform their tasks. De Klerk confirmed that the management of the Respondent, which involved herself as the acting campus manager, were not aware of any meeting that was arranged for 16 August 2018 by the trade union that the Applicant represented.
20. Under cross-examination De Klerk testified that she was the Applicant’s direct line manager. He reported to her as a lecturer in the Business Studies Division. Machaka was not on campus that day, and that is why De Klerk acted as campus manager.
21. Labuschagne reported to her that the Applicant was aggressive and shouted at her. De Klerk found out that no official meeting had been arranged and she told the lecturers to go back to their classes, and the administrative staff to return to their posts.
22. Chantal Labuschagne (“Labuschagne”) testified under oath that she is a senior administrative clerk at Westcol TVET College in Randfontein since 2007.
23. On 16 August 2018 at about 9:00am she was busy working in her office. The Applicant came storming into the office and slammed on the doors and tables in the office. Labuschagne had files in her hand, and he told her stop working because there is a strike by part-time lecturers. She told the Applicant that she was not involved, but he again told her to leave her workplace, and to not help the students.
24. The Applicant was very aggressive and loud, and his actions made her feel intimidated. It was not normal behaviour for a lecturer in the workplace. She did stop her work and she walked out of the office because she felt intimidated by his behaviour. She was not aware of any meeting that was organised by management for the staff on that day. She then went to the office of De Klerk to report what happened.
25. Under cross-examination Labuschagne testified and confirmed that she was intimidated by the Applicant’s aggression. The incident replays in her mind all the time. She was shaking when she went to De Klerk. De Klerk told them to return to their workstations. She was with Alina.
26. The Applicant looked at Labuschagne and shouted at her to get out of the office. She then put down the files she had in her hand and left the office. He slammed the door and tables and was very aggressive. His actions intimidated her to the extent that she put the files down and stopped working. She suffered emotional shock. It was the first time that someone shouted at her like that. It was intimidation.
27. After she went back to the office, she attended to the switchboard because the other staff left. She battled emotionally for the rest of the day, and it influenced her work. She was traumatised and will never forget that day. She did not seek medical treatment but prayed al lot which made her calmer.
28. After that situation there was no one on campus. Only one student came with a query as to what was happening.
29. Malesela Phaka (“Phaka”) testified under oath that he used to be the Deputy Principal, Corporate Services at Westcol TVET College. He moved to another college in August 2021. He was responsible for, amongst others, HR, and labour relations.
30. On 16 August 2018 he was informed that staff were loitering at Westcol. He found staff from the Randfontein campus at Westcol. There was no notice of strike action given by the trade unions. He gave no permission for staff to leave their workstations. He did not authorise the Applicant to interrupt classes and learning on that day. The Applicant had authorisation to stop staff from working. His actions were not justified.
31. Under cross-examination Phaka testified that the Applicant was a shop steward for NEHAWU. Resolution 3 of 2014 regulates what unions should do when they wanted to have meetings. The Applicant was not given permission to arrange a meeting in terms of the provisions of the Resolution. The meeting was not authorised. Staff were forced to attend that meeting on 16 August 2018. The meeting was not organised by management, but management did address the meeting. As a shop steward the Applicant should have been aware of the requirements of the Resolution. The staff was made aware of the contents of the Resolution in 2015 by means of a circular. There was no meeting request beforehand.
32. The Applicant’s misconduct was that he forced people to attend that meeting that was not in compliance with the Resolution, and that he intimidated a staff member. Phaka found staff members congregated in a meeting that was not authorised and he had to address the situation. The Applicant’s actions caused disruption of classes. Labuschagne and other staff members were forced to stop working and told to attend the meeting. Labuschagne did not go to the meeting.
Applicant’s case
33. Stanley Ngoake Moshobane, the Applicant, testified under oath that he was appointed as a PL1 lecturer.
34. On 16 August 2018 he had a call from the Krugersdorp campus. It said there will be a meeting with management and all of them were wanted there. He then spread the message to all staff members that there will be a meeting at corporate offices. Those who could attend, did so, and those that that could not, did not show up. When he arrived at corporate, the meeting was in progress, and he joined it. Tshamano from the Krugersdorp campus gave him the massage that they were invited to the meeting.
35. The Applicant does not recall forcing anyone to attend the meeting. He only relayed the message. He went to the administrative block. He found Labuschagne there. He relayed the message of the meeting to her. He does not recall slamming doors and tables. He forced no one to attend the meeting. Phaka chaired the meeting. It cannot be an unofficial meeting if top management was part of the meeting.
36. The Applicant is not aware of the Resolution. The meeting was not between organised labour and the employer. It was a direct matter between employees and the employer. After the meeting they went back to the Randfontein campus. There were no students on campus that day.
37. Under cross-examination the Applicant testified that he cannot explain why witnesses would fabricate evidence against him. All he did was speak in a loud voice to Labuschagne to convey the message. He was a shop steward. He does not dispute that his voice was loud. The meeting was called by Krugersdorp campus employees. The Applicant does not recall any disruption that was caused. The Applicant cannot explain why the normal communication channels of email and notice boards were not used, if the meeting was indeed arranged by management. He does not agree that his actions caused a breakdown in the trust relationship.
38. Alina Mienie (“Mienie”) testified under oath that she is a senior administrative clerk at the Randfontein campus. On 16 August 2018 the Applicant came to their office and informed them of a meeting at corporate. He used a loud voice and said they have to attend the meeting. The Applicant knocked on the door. She does remember that he said they must attend the meeting. She did attend the meeting. There were employees and management in the meeting. She did not notice whether Labuschagne was upset.
39. Under cross-examination Mienie testified that management usually send invites and agendas for meetings by email, if they call meetings. It is also placed on notice boards. She did not receive any such notice for the meeting on 16 August 2018. The Applicant told her about the meeting. She agrees it was not a normally arranged meeting. She now realises that the meeting that was chaired by Phaka was only to address the unauthorised meeting.
40. Bongani Mabanga (“Mabanga”) testified under oath that on 16 August 2018 they received news that some of their colleagues were having a meeting and they decided that they must join it. He thinks he was with the Applicant. He thinks they went together. He does not remember anything being done to force staff to go to the meeting. He thinks they went home after the meeting. The Applicant used a loud voice because they were in a hurry.
41. Under cross-examination Mabanga testified that management don’t use notice boards to convey information about meetings. They heard about the meeting and decided to join it. Mabanga testified that he might be confusing events. The meeting was not arranged by management. The Applicant did not attend to his classroom on that day. He does not remember who invited them. It was not even an invitation, they were just told about a meeting happening.
42. Note: Before the next witness was called, i.e. Ms Matlala, the Respondent’s representative put it on record that he observed Mabanga talking to Matlala after his testimony. He showed a video to the commissioner confirming that a conversation took place for some time. She agreed that Mabanga did talk to her, but that they did not discuss his testimony. The parties were instructed to argue the issue in terms of the credibility of the witnesses’ evidence.
43. Tlamelo Matlala (“Matlala”) testified under oath that on 16 August 2018 she received a call from Tshamano who told her that staff members felt that they should proceed to corporate to seek answers from management about that commencement of classes. The Applicant came to her and said he had received the same call. They decided to go around the campus to inform staff. She went to the lecture halls. She did not see Labuschagne. Nobody was forced to attend the meeting.
44. Under cross-examination Matlala testified it was a meeting arranged by management. There was no invite from management, though. She was also dismissed as a result of what happened on that day.
45. Mpho Sidwell Tshamano (“Tshamano”) testified under oath that he cannot remember everything that happened on 16 August 2018. The staff at Krugersdorp campus said in the morning that they must all go to corporate to confront management. As shop steward, he decided to inform other shop stewards of their actions. He informed the Applicant and Matlala. It was a meeting for all staff. Phaka chaired the meeting, so it could not have been an unauthorised meeting.
46. Under cross-examination Tshamano testified that the Applicant was a shop steward. He informed the Applicant in his capacity as shop steward, and friend.
Analysis of evidence and argument
47. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the legislation, arguments, legal principles, case law and Codes of Good Practice referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the record of the arbitration hearing.
48. In considering the fairness of the dismissal of the Applicant for misconduct, I will consider the principles contained in the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC), as well as the principles contained in the Code of Good Practice: Dismissals, as contained in Schedule 8 to the Labour Relations Act 66 of 1995 (the Code). The dismissal of the Applicant is not in dispute. The Applicant disputes only the substantive fairness of his dismissal, and the Respondent is therefore required to prove on a balance of probabilities that it was substantively fair.
49. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)).
50. The Applicant was charged in terms of the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC), with Charge 1, i.e. Improper Conduct in that on or about 16 August 2018, he conducted himself improperly in that he forced people or staff on duty to attend a meeting that was not properly arranged and/or authorised in terms of the collective agreement Resolution 3 of 2014 of the General Public Service Sector Bargaining Council (GPSSBC).
51. The Applicant was further charged with Charge 2, i.e. Intimidation, with an alternative charge of Victimisation, in that on or about the 16 August 2018 at or near Randfontein Campus, he intimidated a fellow colleague, Ms Chantal Labuschagne when he shouted at her and ordered her to attend a meeting at Central office of the Western TVET College that was not properly arranged and or authorised by Management.
Substantive fairness
52. I will deal with each allegation in chronological order.
53. In respect of the 1st charge the Applicant disputes that the interpretation and application of Resolution 3 of 2014 of the General Public Service Sector Bargaining Council (GPSSBC) entitles the Respondent to charge him and dismiss him for non-compliance with the Resolution.
54. The Resolution deals with organisational rights between the State as employer in the sector and admitted trade unions, which includes NEHAWU. It is not in dispute that the Applicant was a NEHAWU shop steward.
55. The Resolution states in its preamble that the parties acknowledge the importance of sound and fair labour relations and enter into the agreement with the express intent of promoting and maintaining dynamic labour relations. It further states that the rights, duties and obligations therein are the minimum standards to be complied with by the parties. The parties agreed to commit themselves to promote, inter alia, sound labour relations between management and employees, the understanding of rights and obligations in order to reduce conflict between the role players, mutual respect and goodwill between the employer, organized labour and all other employees and labour peace and an efficient, effective public service.
56. The evidence shows on a balance of probabilities that the meeting at Westcol Corporate was arranged by, inter alia, the shop stewards of NEHAWU, which included the Applicant, who rallied staff at the Randfontein campus. The Applicant’s argument that he was merely an invitee by Tshamano to the meeting, is not valid. Tshamano and Matlala contradicted the Applicant in this respect and testified that Tshamano merely told them about a meeting that was being arranged. The Applicant then played an active role in organizing and/or forcing staff from Randfontein to attend the meeting.
57. I find that it was a meeting that fell within the ambit of the Resolution, i.e. between organized labour being the employees and management. The meeting was not called by or arranged by management. The fact that Phaka took control of the unauthorized meeting and chaired the subsequent events in order to restore order, does not mean that management organized and authorised the meeting.
58. The meeting therefore was subject to the provisions and requirements of the Resolution.
59. Clause 5 of the Resolution deals with meetings. It states that the employer shall provide venues for the meetings, and that the parties agree that such access shall not threaten life of property and shall not result in undue disruption of work. The meeting arranged by the shop stewards and employees, including the Applicant, however resulted in undue disruption of work.
60. The Resolution states that meetings shall always be subject to proper and timeous (at least 48 hours) notice, in writing, to management of the envisaged premises with details of the purpose, anticipated duration of intended visit and names of the trade union representatives. The meeting did not comply with this requirement, as no notice was given to management.
61. I therefore find on a balance of probabilities that the meeting of 16 August 2018 was not properly arranged and/or authorised in terms of Resolution 3 of 2014 of the General Public Service Sector Bargaining Council (GPSSBC). I furthermore find that the manner in which the Applicant, as a shop steward, went about forcing or attempting to force staff on duty to attend that meeting, constituted improper conduct on his part.
62. The Applicant disputes the evidence of Labuschagne that he intimidated her by shouting at her and ordering her to attend the unauthorized meeting.
63. Labuschagne testified in a clear and consistent manner. The Applicant conceded that he raised his voice. I reject his version that he did so to get his message across. Mienie, one of the Applicant’s witnesses, testified that he knocked on the door. I find no logical reason why he would have knocked on the door and find it more probable that he indeed banged on the door as Labuschagne testified. I can find no probable reason why Labuschagne would fabricate evidence against the Applicant. The Applicant could also not provide any substance to such allegation. The Applicant and his witnesses Mienie, Mabanga and Tshamano were very vague and evasive in their testimony. Many questions in cross-examination were met with answers like “I cannot remember”, “as far as I can recall”, “I do not remember” and “I think”. Mienie testified that the Applicant said Labuschagne “have to attend the meeting”, thus ordering her to attend the meeting.
64. Labuschagne testified that the Applicant was very aggressive and loud, and his actions made her feel intimidated. She did stop her work and she walked out of the office because she felt intimidated by his behaviour. The incident replays in her mind all the time. She was shaking when she went to De Klerk. The Applicant looked at Labuschagne and shouted at her to get out of the office. She then put down the files she had in her hand and left the office. He slammed the door and tables and was very aggressive. His actions intimidated her to the extent that she put the files down and stopped working. She suffered emotional shock. It was the first time that someone shouted at her like that.
65. I find on a balance of probabilities that the conduct of the Applicant, by shouting and banging on doors and tables, were such that Labuschagne, towards whom the actions were directed, naturally and probably feared for her own safety, and that the Applicant acted in that way with intent to compel or induce Labuschagne to attend the unauthorized meeting. I therefore find that the Applicant’s actions constituted the misconduct of intimidation.
66. I am satisfied that in respect of charge 1 and 2 the Respondent proved on a balance of probabilities that the Applicant did commit the misconduct he was found guilty of, i.e. improper conduct and intimidation, and that the Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
67. The Applicant did not dispute knowledge of the rules or the consistent application of disciplinary action by the Respondent during the pre-arbitration meeting or during opening statements. It was not recorded as issues in disputes in signed and confirmed pre-arbitration minutes. The Applicant’s representative wanted to introduce these issues halfway through the Respondent’s case by means of cross-examination, and I ruled against it. The issues in dispute were explicitly dealt with at the start of the arbitration hearing and confirmed by the Applicant through his experienced union representative. Nevertheless, it is also so that employees are expected to know that certain behaviour is simply unacceptable and cannot in such instance rely on the argument that he was not aware of the rule or policy. Intimidation, as in this case, is an example of such behaviour.
68. 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 Code states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others [2000] 21 ILJ 1051 (LAC) at 1058F-G). The Applicant’s misconduct must be seen against the background that he was a lecturer and shop steward in a position of trust.
69. The misconduct of the Applicant must be seen in a serious light. The disruption of learning through the arrangement of unauthorized meetings not only goes against the spirit of the Resolution to promote labour peace and an efficient public service, but also the capacity of the Department of Higher Education and Training to exercise its mandate efficiently, which would not be in the interest of the students at the College.
70. The improper conduct of the Applicant relates to a callous disregard for established best practice policies and procedures. This is unacceptable behaviour by someone in the position of lecturer, who should set an example for students.
71. I am satisfied that the improper conduct and intimidation, and the nature of the misconduct of which the Applicant has been found guilty of, is in the specific circumstances such that it would have an irreparable impact on the trust relationship. It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement. (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.). Instead of making use of the available channels to address his concerns, he elected to rather address it in an abusive and improper manner. I refer to Matemane v Driscoll NO and others (JR1690/13) [2016] ZALCJHB 199, and Kabeya v CCMA and others (C 905/2015) [2016] ZALCCT 44, where the Court confirmed that the misconduct of intimidation is a serious offence worthy of the sanction of dismissal.
72. I had due regard to the principles set out in the case of Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) which underlines the principle that the employer has the burden of proof to show that the trust relationship has broken down irretrievably. The labour courts have held that the destruction of the relationship of trust is the ultimate justification for a dismissal. (See Council for Scientific & Industrial Research v Fijen [1996] 6 BLLR 685 (AD); Lahee Park Club v Garrat [1997] 9 BLLR 1137 (LAC)). I refer to Theewaterskloof Municipality v SALGBC (WC) and others LC C966/2008, 14 May 2010, wherein the Labour Court (LC) stated that the question of trustworthiness was seen to go beyond offences which are centrally dependent upon proof of outright dishonesty. The LC stated the general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship will entitle the employer to bring it to an end is a long established one. The LC stated that comparison can be drawn between length of service and a clean record on the one hand, and the circumstances of the offence and lack of remorse amounting to defiance on the other. The LC found it would be incorrect to hold the dismissal was unfair and to require the Municipality to restore the employee to a position in which he has wittingly compromised a core value and has set himself uncompromisingly against any course of reparation. There has either been no recognition by him of wrongdoing on his part or a stubborn refusal to say as much to his employer. Either way, he cannot now as a matter of fairness insist that he is to be placed back in his post, the LC found. There can be little room for the notion of corrective discipline in this situation. The LC also found that where an employee refuses to demonstrate any acceptance of wrongdoing, indicates no degree of whatsoever of remorse, makes no move to correct what he has done, and stands firm with an attitude of opposition towards his employer, then such employee through his own conduct undercuts the applicability of corrective or progressive discipline.
73. The above is aptly applicable in this matter. The Applicant showed no remorse but continued to deny any wrongdoing. The actions of the Applicant leave no option for the application of progressive discipline. I could find no other circumstances from the evidence that would dictate differently.
74. The Applicant’s years of service cannot outweigh the gravity and seriousness of his offences. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
75. I therefore find that the sanction of dismissal is fair and appropriate in the circumstances.
76. I accordingly find the Applicant’s dismissal substantively fair.
Procedural fairness
77. The Applicant did not dispute the procedural fairness of his dismissal and I accordingly find the Applicant’s dismissal procedurally fair.
Relief
78. The Applicant is not entitled to relief.
Award
79. The application is dismissed.
SIGNED AT KEMPTON PARK ON THIS 13th DAY OF OCTOBER 2021.
Coen Havenga
and
DEPARTMENT OF HIGHER EDUCATION AND TRAINING “the Respondent”
ARBITRATION AWARD
Case Number: ELRC435 20/21GP
Last date of arbitration: 13 September 2021
Final closing arguments submitted in writing on: 23 September 2021
Date of award: 13 October 2021 (Extension granted)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
Details of hearing and representation
1. This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was held at the premises of the Westcol TVT College in Randfontein. The last day of the hearing was on 13 September 2021. The parties submitted written closing arguments on 23 September 2021.
2. The Applicant is NEHAWU on behalf of Mr Moshobane, N, represented by Mr Mokgosi, P, a union official. The Respondent is the Department of Higher Education and Training (“DHET”), represented by Mr Khoza, B, an attorney. The issue of legal representation was dealt with and allowed in terms of Rule 25(1)(c)(i) of the CCMA Rules Rules 17.4.2 and 17.4.2.1 of the ELRC Constitution, Part C, Dispute Resolution Procedures.
3. Mr Myeza, M, acted as interpreter.
Issue to be decided
4. The dismissal of the Applicant is not in dispute. I must determine whether his dismissal was substantively fair. The Applicant does not dispute the procedural fairness of his dismissal.
Background to the dispute
5. The parties agreed on a common bundle of documents, marked as Bundle A.
6. The Applicant was employed by the Respondent at Westcol TVET College (“the College”) as a PL1 Lecturer since 17 February 2014. He earned R292 854,00 per annum at the time of his dismissal on 29 October 2020.
7. The Applicant was charged in terms of the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC), with Charge 1, i.e. Improper Conduct in that on or about 16 August 2018, he conducted himself improperly in that he forced people or staff on duty to attend a meeting that was not properly arranged and/or authorised in terms of the collective agreement Resolution 3 of 2014 of the General Public Service Sector Bargaining Council (GPSSBC).
8. The Applicant was charged with Charge 2, i.e. Intimidation, with an alternative charge of Victimisation, in that on or about the 16 August 2018 at or near Randfontein Campus, he intimidated a fellow colleague, Ms Chantal Labuschagne when he shouted at her and ordered her to attend a meeting at Central office of the Western TVET College that was not properly arranged and or authorised by Management.
9. The Applicant was found guilty of both charges following a formal disciplinary hearing.
10. The parties held a pre-arbitration meeting and submitted the signed minutes as part of the record.
11. The parties agreed that the Applicant was employed by the Respondent at Westcol TVET College (“the College”), Randfontein, as a PL1 Lecturer since 17 February 2014, and that he earned R292 854,00 per annum at the time of his dismissal on 29 October 2020
12. The following issues were recorded as being the only issues in dispute:
12.1 The interpretation and application of Resolution 3 of 2014 of the GPSSBC (“the Resolution”), in respect of whether the Respondent was not entitled to charge and dismiss the Applicant on the grounds of his alleged non-compliance with the provisions of the Resolution.
12.2 The Applicant argues that he did not arrange the meeting that led to his dismissal, but that he was invited to the meeting by a colleague from the Krugersdorp central campus, Mr Mpo Tshamano. The Applicant thereafter communicated the message of the meeting to other colleagues at the Randfontein campus.
12.3 The Applicant as well as other employees were entitled to attend the meeting, and he did not intimidate anybody.
12.4 The Respondent alleged that the Applicant intimidated a colleague and forced staff members to attend the meeting that has not been arranged in accordance with the provisions of the Resolution.
13. The Applicant denied all the allegations.
14. The Applicant does not dispute the procedural fairness of his dismissal.
15. The relief the Applicant seeks from this arbitration hearing is retrospective reinstatement without loss of benefits.
Summary of evidence
The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The recordings of the proceedings will reflect the complete testimony of the witnesses.
Respondent’s case
16. Mandi de Klerk (“De Klerk”) testified under oath that she is an education specialist at Westcol TVET College. The manages the Business Studies Division. She has 21 years’ service. She was the acting campus manager on 16 August 2018.
17. A85 reflects the email she sent to Ms Machaka (“Machaka”), the campus manager. Her email resulted in the report by Machaka as reflected in A87. De Klerk read the contents of both documents into the record.
18. There was no meeting for 16 August 2018 arranged in terms of the Resolution. The Applicant did not have the authority to arrange meetings with staff and had no authority to disrupt learning. The effective teaching and learning were disrupted by the Applicant on that day. The students were prejudiced. There was no justification for the interruption of learning.
19. De Klerk testified that Chantal Labuschagne (“Labuschagne”) reported to her that she had been intimidated by the Applicant, and that he forced her to attend a meeting. The intimidation and disruption caused by the Applicant resulted in students not been assisted with administration issues, as Labuschagne and other staff could not perform their tasks. De Klerk confirmed that the management of the Respondent, which involved herself as the acting campus manager, were not aware of any meeting that was arranged for 16 August 2018 by the trade union that the Applicant represented.
20. Under cross-examination De Klerk testified that she was the Applicant’s direct line manager. He reported to her as a lecturer in the Business Studies Division. Machaka was not on campus that day, and that is why De Klerk acted as campus manager.
21. Labuschagne reported to her that the Applicant was aggressive and shouted at her. De Klerk found out that no official meeting had been arranged and she told the lecturers to go back to their classes, and the administrative staff to return to their posts.
22. Chantal Labuschagne (“Labuschagne”) testified under oath that she is a senior administrative clerk at Westcol TVET College in Randfontein since 2007.
23. On 16 August 2018 at about 9:00am she was busy working in her office. The Applicant came storming into the office and slammed on the doors and tables in the office. Labuschagne had files in her hand, and he told her stop working because there is a strike by part-time lecturers. She told the Applicant that she was not involved, but he again told her to leave her workplace, and to not help the students.
24. The Applicant was very aggressive and loud, and his actions made her feel intimidated. It was not normal behaviour for a lecturer in the workplace. She did stop her work and she walked out of the office because she felt intimidated by his behaviour. She was not aware of any meeting that was organised by management for the staff on that day. She then went to the office of De Klerk to report what happened.
25. Under cross-examination Labuschagne testified and confirmed that she was intimidated by the Applicant’s aggression. The incident replays in her mind all the time. She was shaking when she went to De Klerk. De Klerk told them to return to their workstations. She was with Alina.
26. The Applicant looked at Labuschagne and shouted at her to get out of the office. She then put down the files she had in her hand and left the office. He slammed the door and tables and was very aggressive. His actions intimidated her to the extent that she put the files down and stopped working. She suffered emotional shock. It was the first time that someone shouted at her like that. It was intimidation.
27. After she went back to the office, she attended to the switchboard because the other staff left. She battled emotionally for the rest of the day, and it influenced her work. She was traumatised and will never forget that day. She did not seek medical treatment but prayed al lot which made her calmer.
28. After that situation there was no one on campus. Only one student came with a query as to what was happening.
29. Malesela Phaka (“Phaka”) testified under oath that he used to be the Deputy Principal, Corporate Services at Westcol TVET College. He moved to another college in August 2021. He was responsible for, amongst others, HR, and labour relations.
30. On 16 August 2018 he was informed that staff were loitering at Westcol. He found staff from the Randfontein campus at Westcol. There was no notice of strike action given by the trade unions. He gave no permission for staff to leave their workstations. He did not authorise the Applicant to interrupt classes and learning on that day. The Applicant had authorisation to stop staff from working. His actions were not justified.
31. Under cross-examination Phaka testified that the Applicant was a shop steward for NEHAWU. Resolution 3 of 2014 regulates what unions should do when they wanted to have meetings. The Applicant was not given permission to arrange a meeting in terms of the provisions of the Resolution. The meeting was not authorised. Staff were forced to attend that meeting on 16 August 2018. The meeting was not organised by management, but management did address the meeting. As a shop steward the Applicant should have been aware of the requirements of the Resolution. The staff was made aware of the contents of the Resolution in 2015 by means of a circular. There was no meeting request beforehand.
32. The Applicant’s misconduct was that he forced people to attend that meeting that was not in compliance with the Resolution, and that he intimidated a staff member. Phaka found staff members congregated in a meeting that was not authorised and he had to address the situation. The Applicant’s actions caused disruption of classes. Labuschagne and other staff members were forced to stop working and told to attend the meeting. Labuschagne did not go to the meeting.
Applicant’s case
33. Stanley Ngoake Moshobane, the Applicant, testified under oath that he was appointed as a PL1 lecturer.
34. On 16 August 2018 he had a call from the Krugersdorp campus. It said there will be a meeting with management and all of them were wanted there. He then spread the message to all staff members that there will be a meeting at corporate offices. Those who could attend, did so, and those that that could not, did not show up. When he arrived at corporate, the meeting was in progress, and he joined it. Tshamano from the Krugersdorp campus gave him the massage that they were invited to the meeting.
35. The Applicant does not recall forcing anyone to attend the meeting. He only relayed the message. He went to the administrative block. He found Labuschagne there. He relayed the message of the meeting to her. He does not recall slamming doors and tables. He forced no one to attend the meeting. Phaka chaired the meeting. It cannot be an unofficial meeting if top management was part of the meeting.
36. The Applicant is not aware of the Resolution. The meeting was not between organised labour and the employer. It was a direct matter between employees and the employer. After the meeting they went back to the Randfontein campus. There were no students on campus that day.
37. Under cross-examination the Applicant testified that he cannot explain why witnesses would fabricate evidence against him. All he did was speak in a loud voice to Labuschagne to convey the message. He was a shop steward. He does not dispute that his voice was loud. The meeting was called by Krugersdorp campus employees. The Applicant does not recall any disruption that was caused. The Applicant cannot explain why the normal communication channels of email and notice boards were not used, if the meeting was indeed arranged by management. He does not agree that his actions caused a breakdown in the trust relationship.
38. Alina Mienie (“Mienie”) testified under oath that she is a senior administrative clerk at the Randfontein campus. On 16 August 2018 the Applicant came to their office and informed them of a meeting at corporate. He used a loud voice and said they have to attend the meeting. The Applicant knocked on the door. She does remember that he said they must attend the meeting. She did attend the meeting. There were employees and management in the meeting. She did not notice whether Labuschagne was upset.
39. Under cross-examination Mienie testified that management usually send invites and agendas for meetings by email, if they call meetings. It is also placed on notice boards. She did not receive any such notice for the meeting on 16 August 2018. The Applicant told her about the meeting. She agrees it was not a normally arranged meeting. She now realises that the meeting that was chaired by Phaka was only to address the unauthorised meeting.
40. Bongani Mabanga (“Mabanga”) testified under oath that on 16 August 2018 they received news that some of their colleagues were having a meeting and they decided that they must join it. He thinks he was with the Applicant. He thinks they went together. He does not remember anything being done to force staff to go to the meeting. He thinks they went home after the meeting. The Applicant used a loud voice because they were in a hurry.
41. Under cross-examination Mabanga testified that management don’t use notice boards to convey information about meetings. They heard about the meeting and decided to join it. Mabanga testified that he might be confusing events. The meeting was not arranged by management. The Applicant did not attend to his classroom on that day. He does not remember who invited them. It was not even an invitation, they were just told about a meeting happening.
42. Note: Before the next witness was called, i.e. Ms Matlala, the Respondent’s representative put it on record that he observed Mabanga talking to Matlala after his testimony. He showed a video to the commissioner confirming that a conversation took place for some time. She agreed that Mabanga did talk to her, but that they did not discuss his testimony. The parties were instructed to argue the issue in terms of the credibility of the witnesses’ evidence.
43. Tlamelo Matlala (“Matlala”) testified under oath that on 16 August 2018 she received a call from Tshamano who told her that staff members felt that they should proceed to corporate to seek answers from management about that commencement of classes. The Applicant came to her and said he had received the same call. They decided to go around the campus to inform staff. She went to the lecture halls. She did not see Labuschagne. Nobody was forced to attend the meeting.
44. Under cross-examination Matlala testified it was a meeting arranged by management. There was no invite from management, though. She was also dismissed as a result of what happened on that day.
45. Mpho Sidwell Tshamano (“Tshamano”) testified under oath that he cannot remember everything that happened on 16 August 2018. The staff at Krugersdorp campus said in the morning that they must all go to corporate to confront management. As shop steward, he decided to inform other shop stewards of their actions. He informed the Applicant and Matlala. It was a meeting for all staff. Phaka chaired the meeting, so it could not have been an unauthorised meeting.
46. Under cross-examination Tshamano testified that the Applicant was a shop steward. He informed the Applicant in his capacity as shop steward, and friend.
Analysis of evidence and argument
47. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the legislation, arguments, legal principles, case law and Codes of Good Practice referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the record of the arbitration hearing.
48. In considering the fairness of the dismissal of the Applicant for misconduct, I will consider the principles contained in the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC), as well as the principles contained in the Code of Good Practice: Dismissals, as contained in Schedule 8 to the Labour Relations Act 66 of 1995 (the Code). The dismissal of the Applicant is not in dispute. The Applicant disputes only the substantive fairness of his dismissal, and the Respondent is therefore required to prove on a balance of probabilities that it was substantively fair.
49. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)).
50. The Applicant was charged in terms of the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC), with Charge 1, i.e. Improper Conduct in that on or about 16 August 2018, he conducted himself improperly in that he forced people or staff on duty to attend a meeting that was not properly arranged and/or authorised in terms of the collective agreement Resolution 3 of 2014 of the General Public Service Sector Bargaining Council (GPSSBC).
51. The Applicant was further charged with Charge 2, i.e. Intimidation, with an alternative charge of Victimisation, in that on or about the 16 August 2018 at or near Randfontein Campus, he intimidated a fellow colleague, Ms Chantal Labuschagne when he shouted at her and ordered her to attend a meeting at Central office of the Western TVET College that was not properly arranged and or authorised by Management.
Substantive fairness
52. I will deal with each allegation in chronological order.
53. In respect of the 1st charge the Applicant disputes that the interpretation and application of Resolution 3 of 2014 of the General Public Service Sector Bargaining Council (GPSSBC) entitles the Respondent to charge him and dismiss him for non-compliance with the Resolution.
54. The Resolution deals with organisational rights between the State as employer in the sector and admitted trade unions, which includes NEHAWU. It is not in dispute that the Applicant was a NEHAWU shop steward.
55. The Resolution states in its preamble that the parties acknowledge the importance of sound and fair labour relations and enter into the agreement with the express intent of promoting and maintaining dynamic labour relations. It further states that the rights, duties and obligations therein are the minimum standards to be complied with by the parties. The parties agreed to commit themselves to promote, inter alia, sound labour relations between management and employees, the understanding of rights and obligations in order to reduce conflict between the role players, mutual respect and goodwill between the employer, organized labour and all other employees and labour peace and an efficient, effective public service.
56. The evidence shows on a balance of probabilities that the meeting at Westcol Corporate was arranged by, inter alia, the shop stewards of NEHAWU, which included the Applicant, who rallied staff at the Randfontein campus. The Applicant’s argument that he was merely an invitee by Tshamano to the meeting, is not valid. Tshamano and Matlala contradicted the Applicant in this respect and testified that Tshamano merely told them about a meeting that was being arranged. The Applicant then played an active role in organizing and/or forcing staff from Randfontein to attend the meeting.
57. I find that it was a meeting that fell within the ambit of the Resolution, i.e. between organized labour being the employees and management. The meeting was not called by or arranged by management. The fact that Phaka took control of the unauthorized meeting and chaired the subsequent events in order to restore order, does not mean that management organized and authorised the meeting.
58. The meeting therefore was subject to the provisions and requirements of the Resolution.
59. Clause 5 of the Resolution deals with meetings. It states that the employer shall provide venues for the meetings, and that the parties agree that such access shall not threaten life of property and shall not result in undue disruption of work. The meeting arranged by the shop stewards and employees, including the Applicant, however resulted in undue disruption of work.
60. The Resolution states that meetings shall always be subject to proper and timeous (at least 48 hours) notice, in writing, to management of the envisaged premises with details of the purpose, anticipated duration of intended visit and names of the trade union representatives. The meeting did not comply with this requirement, as no notice was given to management.
61. I therefore find on a balance of probabilities that the meeting of 16 August 2018 was not properly arranged and/or authorised in terms of Resolution 3 of 2014 of the General Public Service Sector Bargaining Council (GPSSBC). I furthermore find that the manner in which the Applicant, as a shop steward, went about forcing or attempting to force staff on duty to attend that meeting, constituted improper conduct on his part.
62. The Applicant disputes the evidence of Labuschagne that he intimidated her by shouting at her and ordering her to attend the unauthorized meeting.
63. Labuschagne testified in a clear and consistent manner. The Applicant conceded that he raised his voice. I reject his version that he did so to get his message across. Mienie, one of the Applicant’s witnesses, testified that he knocked on the door. I find no logical reason why he would have knocked on the door and find it more probable that he indeed banged on the door as Labuschagne testified. I can find no probable reason why Labuschagne would fabricate evidence against the Applicant. The Applicant could also not provide any substance to such allegation. The Applicant and his witnesses Mienie, Mabanga and Tshamano were very vague and evasive in their testimony. Many questions in cross-examination were met with answers like “I cannot remember”, “as far as I can recall”, “I do not remember” and “I think”. Mienie testified that the Applicant said Labuschagne “have to attend the meeting”, thus ordering her to attend the meeting.
64. Labuschagne testified that the Applicant was very aggressive and loud, and his actions made her feel intimidated. She did stop her work and she walked out of the office because she felt intimidated by his behaviour. The incident replays in her mind all the time. She was shaking when she went to De Klerk. The Applicant looked at Labuschagne and shouted at her to get out of the office. She then put down the files she had in her hand and left the office. He slammed the door and tables and was very aggressive. His actions intimidated her to the extent that she put the files down and stopped working. She suffered emotional shock. It was the first time that someone shouted at her like that.
65. I find on a balance of probabilities that the conduct of the Applicant, by shouting and banging on doors and tables, were such that Labuschagne, towards whom the actions were directed, naturally and probably feared for her own safety, and that the Applicant acted in that way with intent to compel or induce Labuschagne to attend the unauthorized meeting. I therefore find that the Applicant’s actions constituted the misconduct of intimidation.
66. I am satisfied that in respect of charge 1 and 2 the Respondent proved on a balance of probabilities that the Applicant did commit the misconduct he was found guilty of, i.e. improper conduct and intimidation, and that the Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
67. The Applicant did not dispute knowledge of the rules or the consistent application of disciplinary action by the Respondent during the pre-arbitration meeting or during opening statements. It was not recorded as issues in disputes in signed and confirmed pre-arbitration minutes. The Applicant’s representative wanted to introduce these issues halfway through the Respondent’s case by means of cross-examination, and I ruled against it. The issues in dispute were explicitly dealt with at the start of the arbitration hearing and confirmed by the Applicant through his experienced union representative. Nevertheless, it is also so that employees are expected to know that certain behaviour is simply unacceptable and cannot in such instance rely on the argument that he was not aware of the rule or policy. Intimidation, as in this case, is an example of such behaviour.
68. 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 Code states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others [2000] 21 ILJ 1051 (LAC) at 1058F-G). The Applicant’s misconduct must be seen against the background that he was a lecturer and shop steward in a position of trust.
69. The misconduct of the Applicant must be seen in a serious light. The disruption of learning through the arrangement of unauthorized meetings not only goes against the spirit of the Resolution to promote labour peace and an efficient public service, but also the capacity of the Department of Higher Education and Training to exercise its mandate efficiently, which would not be in the interest of the students at the College.
70. The improper conduct of the Applicant relates to a callous disregard for established best practice policies and procedures. This is unacceptable behaviour by someone in the position of lecturer, who should set an example for students.
71. I am satisfied that the improper conduct and intimidation, and the nature of the misconduct of which the Applicant has been found guilty of, is in the specific circumstances such that it would have an irreparable impact on the trust relationship. It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement. (See Angehrn and Piel v Federal Cold Storage Co Ltd 1908 TS 761 at 777–778.). Instead of making use of the available channels to address his concerns, he elected to rather address it in an abusive and improper manner. I refer to Matemane v Driscoll NO and others (JR1690/13) [2016] ZALCJHB 199, and Kabeya v CCMA and others (C 905/2015) [2016] ZALCCT 44, where the Court confirmed that the misconduct of intimidation is a serious offence worthy of the sanction of dismissal.
72. I had due regard to the principles set out in the case of Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) which underlines the principle that the employer has the burden of proof to show that the trust relationship has broken down irretrievably. The labour courts have held that the destruction of the relationship of trust is the ultimate justification for a dismissal. (See Council for Scientific & Industrial Research v Fijen [1996] 6 BLLR 685 (AD); Lahee Park Club v Garrat [1997] 9 BLLR 1137 (LAC)). I refer to Theewaterskloof Municipality v SALGBC (WC) and others LC C966/2008, 14 May 2010, wherein the Labour Court (LC) stated that the question of trustworthiness was seen to go beyond offences which are centrally dependent upon proof of outright dishonesty. The LC stated the general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship will entitle the employer to bring it to an end is a long established one. The LC stated that comparison can be drawn between length of service and a clean record on the one hand, and the circumstances of the offence and lack of remorse amounting to defiance on the other. The LC found it would be incorrect to hold the dismissal was unfair and to require the Municipality to restore the employee to a position in which he has wittingly compromised a core value and has set himself uncompromisingly against any course of reparation. There has either been no recognition by him of wrongdoing on his part or a stubborn refusal to say as much to his employer. Either way, he cannot now as a matter of fairness insist that he is to be placed back in his post, the LC found. There can be little room for the notion of corrective discipline in this situation. The LC also found that where an employee refuses to demonstrate any acceptance of wrongdoing, indicates no degree of whatsoever of remorse, makes no move to correct what he has done, and stands firm with an attitude of opposition towards his employer, then such employee through his own conduct undercuts the applicability of corrective or progressive discipline.
73. The above is aptly applicable in this matter. The Applicant showed no remorse but continued to deny any wrongdoing. The actions of the Applicant leave no option for the application of progressive discipline. I could find no other circumstances from the evidence that would dictate differently.
74. The Applicant’s years of service cannot outweigh the gravity and seriousness of his offences. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
75. I therefore find that the sanction of dismissal is fair and appropriate in the circumstances.
76. I accordingly find the Applicant’s dismissal substantively fair.
Procedural fairness
77. The Applicant did not dispute the procedural fairness of his dismissal and I accordingly find the Applicant’s dismissal procedurally fair.
Relief
78. The Applicant is not entitled to relief.
Award
79. The application is dismissed.
SIGNED AT KEMPTON PARK ON THIS 13th DAY OF OCTOBER 2021.
Coen Havenga