ELRC644-20/21 EC
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ELRC454-20/21GP
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Award Date:
15 October 2021
Case Number: ELRC454-20/21GP
Commissioner: Vusi Moyo
Date of Award: 15 October 2021
In the ARBITRATION between
Sello Stephen Maphoso APPLICANT
And
Tshwane South 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(5)(a) of the LRA. The arbitration hearing was held under the auspices of the ELRC at Tshwane TVET College over a period of four days.
3. The Applicant, Sello Stephen Maphoso was in attendance and represented by Mr Ben Bosch, an Official of NEHAWU. The Respondent, Tshwane South Technical and Vocational Education and Training (TVET) College was represented by Mr Tebogo Thabane, the Assistant Director of Labour Relations. The proceedings were conducted in English and were both digitally and manually recorded.
ISSUE TO BE DECIDED
4. I am called upon in my capacity as a Commissioner of the CCMA to decide on whether the Applicant’s dismissal was both substantively and procedurally fair or not.
RELIEF SOUGHT
5. The Applicant sought reinstatement as a remedy for the alleged unfair dismissal in terms of section 193 of the LRA.
PRELIMINARY ISSUE: APPLICATION FOR LEGAL REPRESENTATION
6. An application for legal representation was made by the respondent and dealt with prior arbitration. The application was refused. An ex tempore ruling was issued to the parties.
BACKGROUND TO THE ISSUE
7. The Applicant was dismissed from his position as a Lecturer of IT subjects earning a monthly salary of R28 000, 00. The Respondent, Tshwane South Technical and Vocational Education and Training (TVET) College, is a public entity established in terms of the Continuing Education and Training Act 16 of 2006 as amended. Bundles of documents were presented and the authenticity and veracity of these documents was not disputed.
8. A pre-arb conference was held by the parties’ prior arbitration and minutes thereof were duly submitted. The following facts were cited as common cause:
(a) The Applicant concedes to have taken possession of the Acer Projector on 16 March 2018. The Applicant signed the requisite documents to confirm the fact that he took possession of the projector.
(b) The Applicant concedes to have taken possession of the Acer Laptop on 18 October 2018. The Applicant signed the requisite documents to confirm the fact that he took possession of the laptop.
9. Of the essence, the issues in dispute are all in relation to whether the above stated items were ever returned to the College or not.
10. Another preliminary issue was raised in terms of the time between commission of the offence and date of the charges. I found this issue lacking in substance as the offences were not committed on the date that the items were taken from the College but rather on the contested failure to return the items.
SURVEY OF EVIDENCE AND ARGUMENT
11. 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:
12. The Respondent called seven witnesses to lead its evidence whereas the Applicant party led evidence through two witnesses. All witnesses testified under oath. These witnesses were involved in various stages of the alleged misconduct. It emerged as common cause that this equipment, laptop and projector, were signed out but never signed back in. As soon as the Officials of the College became aware that the said items were not signed back, the Applicant was called and asked to bring back the items. These efforts never amounted to anything as the witnesses categorically refuted the Applicant’s version that he ultimately returned these items.
13. The first witness of the Respondent was Mr Trevor Charles Fredericks. He was duly sworn in and testified under oath as follows:
14. Mr Fredericks declared that he is the Labour Relations Consultant for the Respondent and was tasked with investigating the alleged misconduct. He testified on the record keeping process and distribution of laptops and projectors in the College. As an investigator, his findings are that the Applicant failed to return college property in spite of the Applicant claiming in a letter to the Campus Manager on the 31st of January 2019 that “I remember returning it (laptop) on Monday.”
15. Mr Fredericks entered into evidence a document with a letterhead of Game store. This document was initially submitted at the disciplinary hearing by the Applicant. It was purported to prove that the Applicant had initiated a lay buy of an Acer Laptop and Projector collectively valued R10 998, 00 and had paid a deposit of R3 000, 00. Mr Fredericks stated that subsequently they then asked Game Management to verify the document and to check the date of when the items would be released. Game Store Management responded that the document is fraudulent.
16. In his view, the Applicant was playing “hide and seek to dodge his responsibility” for the items. Mr Fredericks further testified that the Applicant was paid an acting allowance at the time. For this reason, he surmised that the Applicant had a surplus of funds to purchase the equipment. To date, these have not been returned nor purchased therefore the College has suffered losses of approximately R23 000, 00 worth of assets.
17. Under cross examination, he conceded that he never spoke to the Applicant during the investigation but he verified all the information he received from other persons. His investigation started around February 2019 and was concluded towards the end of May 2019. He conceded that asset/ barcode numbers are not indicated on the distribution list. He qualified his response that he was not interested in that as his focus was to get the two items returned. He clarified that he does not know how the Labour Relations Unit that drafted the charges came up with barcode numbers.
18. When challenged on the accuracy of his findings by an email from Ms Maoto that stated that she returned the projector to the College, Mr Fredericks highlighted the contradiction for the Applicant’s case in that the Applicant stated in a letter dated 14/03/2019 to the Principal that he returned the equipment. He pointed out the fact that the Applicant never said to the Principal that someone else returned the projector for him. Mr Fredericks further stated that he has never seen the submitted email from Maoto before.
19. On the Game store document, Mr Fredericks clarified that the Chairperson of the hearing was merely a recipient of this document that was also submitted to the other party, the employer.
20. Mr Fredericks refuted the Applicant’s contention that there was no misconduct or that this was not a serious matter as he continued to take and return equipment after these incidents. He responded that the practice of lending continued as there was no policy provision that specified that Lecturers cannot be issued with any equipment until they have returned equipment taken previously. The focus was on providing the Lecturer with what he/ she needs to use not on what was given before.
21. Under re-examination, Mr Fredericks emphasized that in the letters to both Campus Manager and Principal, the Applicant never mentioned the lady that supposedly handed over the projector for him by name. Instead, he always used specific terms that “I returned” and “the said equipment/ them” meaning both laptop and projector. As a result, Mr Fredericks concluded that he remains unsure about which version is correct.
22. The second witness of the Respondent was Ms Raisibe Agnes Segage. She was duly sworn in and testified under oath as follows:
23. Ms Segage is a Finance Clerk of the Respondent and was responsible for controlling College assets at the time. She discovered that College assets were never returned by the Applicant. This was on or around November 2018. She tried unsuccessfully to get the Applicant to return the equipment. Nothing significant came out of cross examination except an emphasis that none of the equipment was returned and there are no signatures affixed on the distribution book. She further clarified that, at the time, asset numbers were not used as there were only 8 laptops and projectors to issue. Thus, it was easier to control the lending process.
24. The fourth witness of the Respondent was Mr Lesiba Maleka. He was duly sworn in and testified under oath as follows:
25. Mr Maleka denied receiving both the laptop and projector. He remembered Patience Maoto when he was cross examined but maintained that she never returned the projector to him. He attested that he would have asked her to sign “PP” in the distribution book if that was the case. Mr Maleka also rejected the Applicant’s version that he gave him the laptop.
26. The fourth witness of the Respondent was Mr Xolani Mntambo. He was duly sworn in and testified under oath as follows:
27. Mr Mntambo is the Deputy Campus Manager. He got involved in the matter on or around December 2018 when Ms Segage reported the missing items and sought his assistance. He then called the Applicant who then promised to sort it out the following day. The Applicant, however, never came to sort out the matter as promised. Under cross examination, Mr Mntambo affirmed that he is not aware of any alleged practice of lenders not signing for College items.
28. The fifth witness of the Respondent was Advocate Joseph T Chiloane. He was duly sworn in and testified under oath as follows:
29. Advocate Chiloane is the Principal or rather Chief Accounting Officer (CAO) of the College. He testified that the matter was escalated to his office after the Applicant was asked several items to return the items without any success. He then wrote a letter of instruction to the Applicant. This was meant to afford the Applicant an opportunity to explain the delay and to return these “pivotal tools of the trade.” As the CAO, Advocate Chiloane explicated that his responsibility was to ensure that college items are protected and to avoid any disadvantage on students and the campus that needed to use the equipment. He was perturbed that the Applicant failed to comply with his instruction as stated in the communique.
30. The CAO attested that in his tardy response, the Applicant, only gave “opportunistic explanations.” He is of the firm view that the Applicant was “playing marbles with us.” It is for this reason that he insisted that there must be judicious consequences.
31. What the Principal/ CAO found more troubling is the fact that the Applicant was initially supposed to return the items, however, on his own accord he said he will buy the items but he did not. This is when the Principal realized that the Applicant was “moving goalposts and he is problematic as a law unto himself.” The Principal thereby gave him time to replace and to date has not complied for more than two years.
32. The Applicant was proffered with charges almost three months’ later from date of his letter to the Principal wherein he made commitments that he never honoured.
33. The Principal made significant submissions regarding aggravating factors and to drive the point home that the trust relationship is destroyed. Briefly, he made it clear that “the Applicant had time and played hide and seek while students were suffering as other Lecturers could not get the equipment.” Throughout this time, the Principal pontificated that he asked himself, “What type of an Educator is this?” He added that the Applicant “was not remorseful and showed us the middle finger and was grossly dishonest and never replaced the missing equipment.”
34. The Principal strongly censured the Applicant’s actions regarding the Game document. He deplored this as outright fraud. He denounced the Applicant as a “repetitive, recalcitrant wrongdoer. We are seated here because of his lies. There is no other sanction but a dismissal. We cannot have such an employee. That is why we wrote to him and when he came he lied. He should have owned up or even offered to pay R200, 00 per month if he had no money.”
35. The rant continued under cross-examination. When confronted with an email purportedly written by Ms Maoto, the Principal responded that it further demonstrates that the Applicant had no integrity and was a law unto himself as he decided to hand over college equipment to an external person without any authorization to do so. He made it clear that if he knew about this email earlier, he would have proffered an additional charge on the Applicant. He also questioned the email as it still does not state who the projector was given to.
36. The Principal was unequivocal that external trainers come with their own paraphernalia and are paid for their services, thus no college equipment should be handed to them. The Principal disputed that she returned the projector. He highlighted that the Applicant never mentioned Patience Maoto in their correspondence and is only bringing up this name during cross examination. Furthermore, if that person had truly returned the projector, why would the Applicant decide to replace the equipment? If the Applicant was honest, the Principal opined that he would have taken him into confidence and informed him that he gave the projector to Maoto. This name would have also appeared in the documents. It was the Principal’s strong emphasis that two wrongs do not make a right as the Applicant had no right to give the projector to Maoto.
37. The Principal further indicated the Applicant’s lack of ethics in that he wondered what would have made him to go to Game store and say that he has placed a lay buy when he knew that he was lying and continued to submit a fraudulent document at the disciplinary hearing. The Applicant was said to be “hiding behind a broom stick and clutching at straws… He continued to lie and deepen the crisis. He is incorrigible and beyond redemption. He is a liar. The best thing to do is to part ways”
38. The Principal further rejected the Applicant’s version that there was an instruction from Ms Rachel Ntsimane about the equipment. If that was the case, he detailed that this would have been documented.
39. In closing cross-examination, the Principal raised a concern that the college still wants the missing equipment. He noted that this is a serious matter and that is confirmed by the Minister of Higher Education as he agreed with his decision in dismissing the Applicant’s appeal and congratulated him that he is doing a good job.
40. A contradiction was highlighted under re-examination that on the letter the Applicant claimed to have returned the equipment but on the email it was returned by Maoto. The evidence related to Maoto was also rejected by the Principal/ CAO that it is neither here nor there.
41. The Respondent called Ms Elizabeth Masango as witness number six. She was duly sworn in and testified under oath as follows:
42. Ms Masango introduced herself as an Admin Manager at Game store in Green Stone. She has more than 15 years of service at Game and is responsible for all the paperwork in the store. She testified that the document submitted by the Applicant is an internal document used when customers come with a proposal for a lay buy order. The purpose of the document is to compile items and details of the customer and is later taken for capturing. She confirmed that the document was given to Mr Maphoso although this is not supposed to be given to customers as it is an internal document. She testified that the handwriting on the document is not that of the team member indicated. The sales number is also not that of the team member. The figure of the deposit is also not the required 20% of the sale. In demonstrating that the document is only for internal use, Ms Masango attested that customers are provided with contracts and a slip of the 20% deposit that they paid. In this case, none of these documents were issued to the Applicant. Ms Masango thus stated that the document submitted to the Respondent was not completed in the store.
43. The entire process of a lay-buy, purchase proposal and sales journal that captures lay buy customer names was placed on record. For the Applicant, she made it clear that no item was placed on lay-buy as this is not recorded manually. If there was a lay buy it would have been captured on the system. She demonstrated from a screen printout that the debtor number on the document submitted by the Applicant did not exist. She explicated that the system rejected the lay buy as it probably stayed too long or that there was no proof of payment to validate the document. The barcode of the projector is also of an item that they did not have in the store and was never part of their stock. She provided a simple explanation that you can only lay buy something that is in stock and is in store as the customer needs to see and validate the item prior lay buy. To make matters worse, Ms Masango also noted that the Game Distribution Centre did not also have the stated item on stock.
44. Under cross-examination, Ms Masango responded that the paper submitted by the Applicant does not match what is on the system. While she did not know who completed the document, she speculated that this was done by an untrained person. She re-emphasized under re-examination that fraud was committed.
45. Witness number seven of the Respondent was Ms Rachel Ntsimane. She was duly sworn in and testified under oath as follows:
46. Ms Ntsimane is the Respondent’s Deputy Principal. She testified that she acquired the laptops to enhance teaching and learning. After the purchase, she designed a form that must be used for control purposes. Every Lecturer was then responsible for the laptop/projector in his/ her possession. Ms Ntsimane was firm that there is no way that she could have given an instruction to a Lecturer to give a laptop/projector to an external person or third party. Her submission was forthright that she never gave such an instruction to the Applicant. Minimal cross examination only revealed a clear stance that external persons were never allowed to be handed these college items.
47. The Respondent then closed its case.
48. Ms Patience Maoto was called as the first witness for the Applicant’s case. She was duly sworn in and testified under oath as follows:
49. Ms Maoto testified that she works for a company called Bheka Management Services. She confirmed that she is the author of the email in contention. She stated that this was sent while she was on maternity leave.
50. Ms Maoto affirmed that she gave the projector to Mr Maleka inside the college after waiting for him at the gate. She was positive that the Respondent should go through CCTV footage as they will see that she gave it to him. She accepted that nothing was signed when she handed over the projector to Mr Maleka.
51. Under cross-examination, Ms Maoto hesitated and could not provide a date of when she handed over the equipment. She responded that she informed the Applicant on the same day that he gave the projector to Mr Maleka. She stated that the Applicant gave her his cell phone numbers.
52. Ms Maoto’s version is clear that she handed over the projector to Mr Maleka whereas the Applicant’s version in his letter is that he submitted the projector in person. This was demonstrated to her and she was consequently challenged on who is telling the truth between herself and the Applicant. She responded that, “I am not sure but I know I am telling the truth…” She went on to respond to a follow up question that, “If he (Mr Maphoso) is to be believed, then I do not know on what grounds…”
53. The Applicant, Mr Sello Stephen Maphoso, testified under oath as a second witness for his case.
54. Mr Maphoso started his testimony by declaring that at the time of the incident he was serving in the Academic Board of the College and was an Acting Senior Lecturer in IT. He avowed that he signed for the projector on behalf of Ms Maoto to conduct training over a period of one month. At the end of her training, Mr Maphoso stated that he told Ms Maoto to hand over the projector to Mr Maleka and she assured him that she did so. While claiming that he gave the laptop to Mr Maleka, the Applicant stated that he could not remember signing for it. He confirmed that he was initially called by Ms Segage regarding the missing items. The Applicant blamed the entire incident on being confused. He accepted that he wrote letters to Management and committed to replace the items. In failing to honour his promise to replace same, he declared that he did not have the money to buy/ deposit the equipment.
55. The Applicant revealed that the idea for a lay buy came up during his disciplinary hearing and he was advised to consider that option as a solution for his predicament. He made an election to pursue the lay-buy option.
56. The Applicant was exposed as an untruthful witness that changed versions during intense cross examination. He conceded that he never made a lay buy of these items. He could not remember any of the critical dates in this saga. Another concession was made that when he wrote to the Principal that he has signed for the Projector it was not the truth. Mr Maphoso was asked directly whether he lied to the Principal and he responded, “Yes”.
57. Mr Maphoso admitted that he submitted the document from Game store as proof of a lay buy. This is in spite of his earlier admission that he did not, in fact, lay buy the items. Be that as it may, he remained obstinate that it is not a fraudulent document.
58. The Applicant tried to relay other versions about the Principal but was quickly reminded that he never put them to Advocate Chiloane. When the Applicant was challenged that he never put a version of doing the lay buy based on advice from authorities (Principal, etc) as well as the Chairperson of the hearing, he hesitated and was unresponsive for some time.
59. It was also pointed out to the Applicant that he pleaded guilty to gross dishonesty at the disciplinary hearing. He did not refute this statement but only responded that he does not remember his plea on the charge.
60. The Applicant responded that he did not replace the missing items due to limited time constraints.
61. When asked what would have been a fair sanction, Mr Maphoso could only say that it would be to get his job back as he is still willing to replace the lost items. He conceded that he cannot connect some of his statements as he is confused. On his failure to put versions to witnesses, the Applicant avowed that he did not tell his representative about some of the things related to his case. In his own words, the Applicant stated that, “…in the letters, I set a trap for myself.”
62. The applicant mentioned Mr Lovelle May a number of times. When asked why he did not bring him as a witness, he admitted that he does not have a reason why he did not bring him to arbitration as his witness.
63. Closing arguments were submitted in writing by both parties.
ANALYSIS OF EVIDENCE AND ARGUMENT
64. The Respondent characterized itself as a “structured organization which has a hierarchy in respect of management and has well established rules that must be complied with in order to ensure functionality and consistency in the behaviour of employees.” The existence nor awareness of applicable rules was not placed in dispute.
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.
66. On procedural fairness, the Chairperson of the disciplinary hearing was accused of clothing himself as a player and referee as well as a witness when the charge of gross dishonesty related to the Game store document was dealt with. I disagree with this characterization. My finding in this regard is that the Chairperson of the disciplinary hearing cannot be blamed for having been present at his own hearing when the Applicant was advised to consider a lay buy of the equipment.
67. The fact that the Applicant later submitted a fraudulent document purported to be proof of a lay buy does not mean that the Chairperson was no longer independent and/ or impartial. No evidence was led on how the Chairperson suddenly became biased or was unduly influenced on this matter except for a belated allegation of procedural unfairness as he knew about the matter beforehand. This is a flawed observation as it is clear that the Chairperson, like other participants in the hearing, was not aware at the time that the document is fraudulent. This was discovered independently by the Respondent in its subsequent investigations. The Chairperson can also not be professed as a witness as no evidence was led so show that he also testified in the hearing about this incident. It is also noteworthy that there is no evidence led that the Chairperson was ever asked to recuse himself from the hearing. I therefore arrived at a determination that the disciplinary hearing proceeded in a fair manner and was concluded without any of these issues raised and dealt with at that stage.
68. Item 4(1) of the Code of Good Practice: Dismissal reads as follows:
“Normally the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state his case in response to the allegations. The employee should be entitled to a reasonable time to prepare a response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.”
69. In this case, the Respondent complied with the above statutory requirements for procedural fairness.
70. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC); [2006] 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. In this case, the Respondent managed to comply with the minimum of what is required for procedural fairness explicated in this case law. I therefore conclude that the procedure adopted by the Respondent in this matter was fair.
71. On substantive fairness, I had no reason to doubt the credibility of Mr Maleka’s version that no one handed over the laptop and projector to him. His evidence was clear and nothing was submitted to the contrary. Ms Maoto’s version about meeting Mr Maleka at the gate was not put to him.
72. The Applicant’s version about meeting Mr Maleka outside of the Finance office for the handover was also not properly dealt with. On both occasions of these supposed handovers, dates were not revealed. Evidence in this regard is therefore lacking and as a consequence, unworthy of any further consideration.
73. I rejected Ms Maoto’s request for CCTV footage as she failed to provide a date of the incident. No one can be expected to go through hundreds of hours of footage over random days with no end. A sensible submission in this regard would have had a date, time and clear location of the handover. An inspection in loco could have also been sought.
74. Mr Maleka is a key witness in this matter but there was no significant effort displayed by the Applicant and his representative to discredit his testimony and/ or to significantly challenge his denials of receiving any equipment. I found this to be anomalous and absurd.
75. As a consequence, I accepted Mr Maleka’s version in its entirety and rejected Mr Maphoso’s attempt to apportion any liability on him. It is also significant that from inception, Mr Maphoso could not recall giving the equipment to Mr Maleka but all of a sudden he was absolutely certain during arbitration. In the pre-arb minutes, it is stated among issues in dispute that, “…the Applicant allegedly returned the laptop to a person within the Finance Department, whose name he cannot recall.” As a result, I found Mr Maphoso’s claim that he handed over the laptop to Mr Maleka to be unreliable and improbable.
76. The Applicant contradicted himself on the documents he wrote versus his oral testimony. He has a number of different versions that cannot be reconciled. The version of Maoto should have been present from the beginning when he was asked by Ms Segage, Mr Mntambo, Advocate Chiloane and to the Chairperson of the hearing over a period of a few months. This proves that this version was a mere afterthought and a fabrication meant to obfuscate issues at arbitration.
77. Ms Maoto’s version contradicted that of the Applicant when she emphasized that the Applicant knew on the same day that she handed over the projector to Mr Maleka. If this was accurate, the Applicant would have not mentioned her name to the Principal for the first time at arbitration, under his cross examination. This was almost two years later.
78. The credibility, reliability and probability of the Applicant’s version was rejected by his own witness, Ms Maoto. She asked on what grounds he would be believed. This completely shattered his case.
79. The Applicant conceded that on the 14th of March 2019 he committed in a letter to the Principal, Advovate Chiloane, to “replace” this equipment by no later than 31 May 2019. The Applicant failed to deliver on his promise. In the same letter, the Applicant was adamant that the laptop and projector were returned. He wrote that, “as for the projector, I did sign for it.” He manifestly contradicted himself at arbitration as he conceded that he never signed as initially claimed.
80. The Principal/ CAO was at pains in explicating the disturbing nature of this misconduct by the Lecturer. The Principal’s outrage cannot go unnoticed. In analyzing evidence in this matter, the unanswered question posed by the Principal, Adv. Chiloane is still inevitable: “What kind of an Educator is this?”
81. I find that this is an Educator that sat in the College Academic Board, a significant decision making body of the institution, but consciously refused to untangle himself from this tawdry affair. He set himself a timeline as to when he will replace the equipment and this was accepted by the College. It is now more than two year later after his own deadline and he has still not done anything about it. There is no sensible reason for why he failed to deliver as promised save to state that he never had any intention to buy these lost items. Consequently, I drew a negative inference from this unacceptable conduct.
82. I found the Applicant’s version that he did not have sufficient time to replace the items to be absurd and unreasonable. He has had approximately three years to date and the items are still not replaced. In closing his testimony at arbitration on the 27th of September 2021, the Applicant asked for another opportunity to purchase these items.
83. The Applicant was definitely deceptive in his conduct and the Respondent’s losses are palpable and undisputed. There is no justification for this misconduct. The facts are conspicuously clear and unshakeable but the Applicant persisted with no leg to stand on in the face of no prospects of success. He conceded under heated cross examination that he lied to the Principal. At that stage, a reasonable person would have given up the continued falsehoods but not Mr Maphoso.
84. In aggravating his state of affairs, when the Applicant was charged for the offence, he brought a document from Game Stores to deliberately mislead his employer that he has initiated a lay buy of these two pieces of equipment. I found it shameful that an Admin Manager from Game Stores had to be brought in to testify on this fraudulent document produced by a dishonest Lecturer and he still denied the glaring evidence against him. The elaborate evidence led by Ms Masango, the Admin Manager from Game, could not be controverted through insignificant cross examination. The Applicant is definitely a recalcitrant offender and a disgrace to the teaching profession.
85. In demonstrating the seriousness of the offences, no one could have done it better than the passionate and animated submissions made by the Principal/ CAO, Advocate Joseph T Chiloane.
86. In Absa Bank v CCMA and Others (JRÂ 1619/13) [2015] ZALCJHB 286 it was held that the moment dishonesty is accepted and the particular case is of such a serious degree as to be described as gross, then dismissal is an appropriate and fair sanction.
87. Furthermore, the applicant failed to show remorse. It is impossible to rehabilitate the conduct of a person that does not acknowledge his shortcomings and/ or mistakes. Furthermore, any victory out of this process might also induce a sense of triumphalism instead of instilling a critical lesson learnt and ultimately imposing behavior change on the Applicant.
88. It is one of the fundamentals of the employment relationship that the Employer should be able to place trust in the Employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it, thereby warranting dismissal.
89. Subsequently and 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:
AWARD
90. The dismissal of the Applicant, Mr Sello Stephen Maphoso, by the Respondent, Tshwane South TVET College, is both procedurally and substantively fair.
91. The dismissal of the Applicant by the Respondent is upheld.
Dated and signed on 15 October 2021.
Vusi Moyo
ELRC Panellist
Commissioner: Vusi Moyo
Date of Award: 15 October 2021
In the ARBITRATION between
Sello Stephen Maphoso APPLICANT
And
Tshwane South 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(5)(a) of the LRA. The arbitration hearing was held under the auspices of the ELRC at Tshwane TVET College over a period of four days.
3. The Applicant, Sello Stephen Maphoso was in attendance and represented by Mr Ben Bosch, an Official of NEHAWU. The Respondent, Tshwane South Technical and Vocational Education and Training (TVET) College was represented by Mr Tebogo Thabane, the Assistant Director of Labour Relations. The proceedings were conducted in English and were both digitally and manually recorded.
ISSUE TO BE DECIDED
4. I am called upon in my capacity as a Commissioner of the CCMA to decide on whether the Applicant’s dismissal was both substantively and procedurally fair or not.
RELIEF SOUGHT
5. The Applicant sought reinstatement as a remedy for the alleged unfair dismissal in terms of section 193 of the LRA.
PRELIMINARY ISSUE: APPLICATION FOR LEGAL REPRESENTATION
6. An application for legal representation was made by the respondent and dealt with prior arbitration. The application was refused. An ex tempore ruling was issued to the parties.
BACKGROUND TO THE ISSUE
7. The Applicant was dismissed from his position as a Lecturer of IT subjects earning a monthly salary of R28 000, 00. The Respondent, Tshwane South Technical and Vocational Education and Training (TVET) College, is a public entity established in terms of the Continuing Education and Training Act 16 of 2006 as amended. Bundles of documents were presented and the authenticity and veracity of these documents was not disputed.
8. A pre-arb conference was held by the parties’ prior arbitration and minutes thereof were duly submitted. The following facts were cited as common cause:
(a) The Applicant concedes to have taken possession of the Acer Projector on 16 March 2018. The Applicant signed the requisite documents to confirm the fact that he took possession of the projector.
(b) The Applicant concedes to have taken possession of the Acer Laptop on 18 October 2018. The Applicant signed the requisite documents to confirm the fact that he took possession of the laptop.
9. Of the essence, the issues in dispute are all in relation to whether the above stated items were ever returned to the College or not.
10. Another preliminary issue was raised in terms of the time between commission of the offence and date of the charges. I found this issue lacking in substance as the offences were not committed on the date that the items were taken from the College but rather on the contested failure to return the items.
SURVEY OF EVIDENCE AND ARGUMENT
11. 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:
12. The Respondent called seven witnesses to lead its evidence whereas the Applicant party led evidence through two witnesses. All witnesses testified under oath. These witnesses were involved in various stages of the alleged misconduct. It emerged as common cause that this equipment, laptop and projector, were signed out but never signed back in. As soon as the Officials of the College became aware that the said items were not signed back, the Applicant was called and asked to bring back the items. These efforts never amounted to anything as the witnesses categorically refuted the Applicant’s version that he ultimately returned these items.
13. The first witness of the Respondent was Mr Trevor Charles Fredericks. He was duly sworn in and testified under oath as follows:
14. Mr Fredericks declared that he is the Labour Relations Consultant for the Respondent and was tasked with investigating the alleged misconduct. He testified on the record keeping process and distribution of laptops and projectors in the College. As an investigator, his findings are that the Applicant failed to return college property in spite of the Applicant claiming in a letter to the Campus Manager on the 31st of January 2019 that “I remember returning it (laptop) on Monday.”
15. Mr Fredericks entered into evidence a document with a letterhead of Game store. This document was initially submitted at the disciplinary hearing by the Applicant. It was purported to prove that the Applicant had initiated a lay buy of an Acer Laptop and Projector collectively valued R10 998, 00 and had paid a deposit of R3 000, 00. Mr Fredericks stated that subsequently they then asked Game Management to verify the document and to check the date of when the items would be released. Game Store Management responded that the document is fraudulent.
16. In his view, the Applicant was playing “hide and seek to dodge his responsibility” for the items. Mr Fredericks further testified that the Applicant was paid an acting allowance at the time. For this reason, he surmised that the Applicant had a surplus of funds to purchase the equipment. To date, these have not been returned nor purchased therefore the College has suffered losses of approximately R23 000, 00 worth of assets.
17. Under cross examination, he conceded that he never spoke to the Applicant during the investigation but he verified all the information he received from other persons. His investigation started around February 2019 and was concluded towards the end of May 2019. He conceded that asset/ barcode numbers are not indicated on the distribution list. He qualified his response that he was not interested in that as his focus was to get the two items returned. He clarified that he does not know how the Labour Relations Unit that drafted the charges came up with barcode numbers.
18. When challenged on the accuracy of his findings by an email from Ms Maoto that stated that she returned the projector to the College, Mr Fredericks highlighted the contradiction for the Applicant’s case in that the Applicant stated in a letter dated 14/03/2019 to the Principal that he returned the equipment. He pointed out the fact that the Applicant never said to the Principal that someone else returned the projector for him. Mr Fredericks further stated that he has never seen the submitted email from Maoto before.
19. On the Game store document, Mr Fredericks clarified that the Chairperson of the hearing was merely a recipient of this document that was also submitted to the other party, the employer.
20. Mr Fredericks refuted the Applicant’s contention that there was no misconduct or that this was not a serious matter as he continued to take and return equipment after these incidents. He responded that the practice of lending continued as there was no policy provision that specified that Lecturers cannot be issued with any equipment until they have returned equipment taken previously. The focus was on providing the Lecturer with what he/ she needs to use not on what was given before.
21. Under re-examination, Mr Fredericks emphasized that in the letters to both Campus Manager and Principal, the Applicant never mentioned the lady that supposedly handed over the projector for him by name. Instead, he always used specific terms that “I returned” and “the said equipment/ them” meaning both laptop and projector. As a result, Mr Fredericks concluded that he remains unsure about which version is correct.
22. The second witness of the Respondent was Ms Raisibe Agnes Segage. She was duly sworn in and testified under oath as follows:
23. Ms Segage is a Finance Clerk of the Respondent and was responsible for controlling College assets at the time. She discovered that College assets were never returned by the Applicant. This was on or around November 2018. She tried unsuccessfully to get the Applicant to return the equipment. Nothing significant came out of cross examination except an emphasis that none of the equipment was returned and there are no signatures affixed on the distribution book. She further clarified that, at the time, asset numbers were not used as there were only 8 laptops and projectors to issue. Thus, it was easier to control the lending process.
24. The fourth witness of the Respondent was Mr Lesiba Maleka. He was duly sworn in and testified under oath as follows:
25. Mr Maleka denied receiving both the laptop and projector. He remembered Patience Maoto when he was cross examined but maintained that she never returned the projector to him. He attested that he would have asked her to sign “PP” in the distribution book if that was the case. Mr Maleka also rejected the Applicant’s version that he gave him the laptop.
26. The fourth witness of the Respondent was Mr Xolani Mntambo. He was duly sworn in and testified under oath as follows:
27. Mr Mntambo is the Deputy Campus Manager. He got involved in the matter on or around December 2018 when Ms Segage reported the missing items and sought his assistance. He then called the Applicant who then promised to sort it out the following day. The Applicant, however, never came to sort out the matter as promised. Under cross examination, Mr Mntambo affirmed that he is not aware of any alleged practice of lenders not signing for College items.
28. The fifth witness of the Respondent was Advocate Joseph T Chiloane. He was duly sworn in and testified under oath as follows:
29. Advocate Chiloane is the Principal or rather Chief Accounting Officer (CAO) of the College. He testified that the matter was escalated to his office after the Applicant was asked several items to return the items without any success. He then wrote a letter of instruction to the Applicant. This was meant to afford the Applicant an opportunity to explain the delay and to return these “pivotal tools of the trade.” As the CAO, Advocate Chiloane explicated that his responsibility was to ensure that college items are protected and to avoid any disadvantage on students and the campus that needed to use the equipment. He was perturbed that the Applicant failed to comply with his instruction as stated in the communique.
30. The CAO attested that in his tardy response, the Applicant, only gave “opportunistic explanations.” He is of the firm view that the Applicant was “playing marbles with us.” It is for this reason that he insisted that there must be judicious consequences.
31. What the Principal/ CAO found more troubling is the fact that the Applicant was initially supposed to return the items, however, on his own accord he said he will buy the items but he did not. This is when the Principal realized that the Applicant was “moving goalposts and he is problematic as a law unto himself.” The Principal thereby gave him time to replace and to date has not complied for more than two years.
32. The Applicant was proffered with charges almost three months’ later from date of his letter to the Principal wherein he made commitments that he never honoured.
33. The Principal made significant submissions regarding aggravating factors and to drive the point home that the trust relationship is destroyed. Briefly, he made it clear that “the Applicant had time and played hide and seek while students were suffering as other Lecturers could not get the equipment.” Throughout this time, the Principal pontificated that he asked himself, “What type of an Educator is this?” He added that the Applicant “was not remorseful and showed us the middle finger and was grossly dishonest and never replaced the missing equipment.”
34. The Principal strongly censured the Applicant’s actions regarding the Game document. He deplored this as outright fraud. He denounced the Applicant as a “repetitive, recalcitrant wrongdoer. We are seated here because of his lies. There is no other sanction but a dismissal. We cannot have such an employee. That is why we wrote to him and when he came he lied. He should have owned up or even offered to pay R200, 00 per month if he had no money.”
35. The rant continued under cross-examination. When confronted with an email purportedly written by Ms Maoto, the Principal responded that it further demonstrates that the Applicant had no integrity and was a law unto himself as he decided to hand over college equipment to an external person without any authorization to do so. He made it clear that if he knew about this email earlier, he would have proffered an additional charge on the Applicant. He also questioned the email as it still does not state who the projector was given to.
36. The Principal was unequivocal that external trainers come with their own paraphernalia and are paid for their services, thus no college equipment should be handed to them. The Principal disputed that she returned the projector. He highlighted that the Applicant never mentioned Patience Maoto in their correspondence and is only bringing up this name during cross examination. Furthermore, if that person had truly returned the projector, why would the Applicant decide to replace the equipment? If the Applicant was honest, the Principal opined that he would have taken him into confidence and informed him that he gave the projector to Maoto. This name would have also appeared in the documents. It was the Principal’s strong emphasis that two wrongs do not make a right as the Applicant had no right to give the projector to Maoto.
37. The Principal further indicated the Applicant’s lack of ethics in that he wondered what would have made him to go to Game store and say that he has placed a lay buy when he knew that he was lying and continued to submit a fraudulent document at the disciplinary hearing. The Applicant was said to be “hiding behind a broom stick and clutching at straws… He continued to lie and deepen the crisis. He is incorrigible and beyond redemption. He is a liar. The best thing to do is to part ways”
38. The Principal further rejected the Applicant’s version that there was an instruction from Ms Rachel Ntsimane about the equipment. If that was the case, he detailed that this would have been documented.
39. In closing cross-examination, the Principal raised a concern that the college still wants the missing equipment. He noted that this is a serious matter and that is confirmed by the Minister of Higher Education as he agreed with his decision in dismissing the Applicant’s appeal and congratulated him that he is doing a good job.
40. A contradiction was highlighted under re-examination that on the letter the Applicant claimed to have returned the equipment but on the email it was returned by Maoto. The evidence related to Maoto was also rejected by the Principal/ CAO that it is neither here nor there.
41. The Respondent called Ms Elizabeth Masango as witness number six. She was duly sworn in and testified under oath as follows:
42. Ms Masango introduced herself as an Admin Manager at Game store in Green Stone. She has more than 15 years of service at Game and is responsible for all the paperwork in the store. She testified that the document submitted by the Applicant is an internal document used when customers come with a proposal for a lay buy order. The purpose of the document is to compile items and details of the customer and is later taken for capturing. She confirmed that the document was given to Mr Maphoso although this is not supposed to be given to customers as it is an internal document. She testified that the handwriting on the document is not that of the team member indicated. The sales number is also not that of the team member. The figure of the deposit is also not the required 20% of the sale. In demonstrating that the document is only for internal use, Ms Masango attested that customers are provided with contracts and a slip of the 20% deposit that they paid. In this case, none of these documents were issued to the Applicant. Ms Masango thus stated that the document submitted to the Respondent was not completed in the store.
43. The entire process of a lay-buy, purchase proposal and sales journal that captures lay buy customer names was placed on record. For the Applicant, she made it clear that no item was placed on lay-buy as this is not recorded manually. If there was a lay buy it would have been captured on the system. She demonstrated from a screen printout that the debtor number on the document submitted by the Applicant did not exist. She explicated that the system rejected the lay buy as it probably stayed too long or that there was no proof of payment to validate the document. The barcode of the projector is also of an item that they did not have in the store and was never part of their stock. She provided a simple explanation that you can only lay buy something that is in stock and is in store as the customer needs to see and validate the item prior lay buy. To make matters worse, Ms Masango also noted that the Game Distribution Centre did not also have the stated item on stock.
44. Under cross-examination, Ms Masango responded that the paper submitted by the Applicant does not match what is on the system. While she did not know who completed the document, she speculated that this was done by an untrained person. She re-emphasized under re-examination that fraud was committed.
45. Witness number seven of the Respondent was Ms Rachel Ntsimane. She was duly sworn in and testified under oath as follows:
46. Ms Ntsimane is the Respondent’s Deputy Principal. She testified that she acquired the laptops to enhance teaching and learning. After the purchase, she designed a form that must be used for control purposes. Every Lecturer was then responsible for the laptop/projector in his/ her possession. Ms Ntsimane was firm that there is no way that she could have given an instruction to a Lecturer to give a laptop/projector to an external person or third party. Her submission was forthright that she never gave such an instruction to the Applicant. Minimal cross examination only revealed a clear stance that external persons were never allowed to be handed these college items.
47. The Respondent then closed its case.
48. Ms Patience Maoto was called as the first witness for the Applicant’s case. She was duly sworn in and testified under oath as follows:
49. Ms Maoto testified that she works for a company called Bheka Management Services. She confirmed that she is the author of the email in contention. She stated that this was sent while she was on maternity leave.
50. Ms Maoto affirmed that she gave the projector to Mr Maleka inside the college after waiting for him at the gate. She was positive that the Respondent should go through CCTV footage as they will see that she gave it to him. She accepted that nothing was signed when she handed over the projector to Mr Maleka.
51. Under cross-examination, Ms Maoto hesitated and could not provide a date of when she handed over the equipment. She responded that she informed the Applicant on the same day that he gave the projector to Mr Maleka. She stated that the Applicant gave her his cell phone numbers.
52. Ms Maoto’s version is clear that she handed over the projector to Mr Maleka whereas the Applicant’s version in his letter is that he submitted the projector in person. This was demonstrated to her and she was consequently challenged on who is telling the truth between herself and the Applicant. She responded that, “I am not sure but I know I am telling the truth…” She went on to respond to a follow up question that, “If he (Mr Maphoso) is to be believed, then I do not know on what grounds…”
53. The Applicant, Mr Sello Stephen Maphoso, testified under oath as a second witness for his case.
54. Mr Maphoso started his testimony by declaring that at the time of the incident he was serving in the Academic Board of the College and was an Acting Senior Lecturer in IT. He avowed that he signed for the projector on behalf of Ms Maoto to conduct training over a period of one month. At the end of her training, Mr Maphoso stated that he told Ms Maoto to hand over the projector to Mr Maleka and she assured him that she did so. While claiming that he gave the laptop to Mr Maleka, the Applicant stated that he could not remember signing for it. He confirmed that he was initially called by Ms Segage regarding the missing items. The Applicant blamed the entire incident on being confused. He accepted that he wrote letters to Management and committed to replace the items. In failing to honour his promise to replace same, he declared that he did not have the money to buy/ deposit the equipment.
55. The Applicant revealed that the idea for a lay buy came up during his disciplinary hearing and he was advised to consider that option as a solution for his predicament. He made an election to pursue the lay-buy option.
56. The Applicant was exposed as an untruthful witness that changed versions during intense cross examination. He conceded that he never made a lay buy of these items. He could not remember any of the critical dates in this saga. Another concession was made that when he wrote to the Principal that he has signed for the Projector it was not the truth. Mr Maphoso was asked directly whether he lied to the Principal and he responded, “Yes”.
57. Mr Maphoso admitted that he submitted the document from Game store as proof of a lay buy. This is in spite of his earlier admission that he did not, in fact, lay buy the items. Be that as it may, he remained obstinate that it is not a fraudulent document.
58. The Applicant tried to relay other versions about the Principal but was quickly reminded that he never put them to Advocate Chiloane. When the Applicant was challenged that he never put a version of doing the lay buy based on advice from authorities (Principal, etc) as well as the Chairperson of the hearing, he hesitated and was unresponsive for some time.
59. It was also pointed out to the Applicant that he pleaded guilty to gross dishonesty at the disciplinary hearing. He did not refute this statement but only responded that he does not remember his plea on the charge.
60. The Applicant responded that he did not replace the missing items due to limited time constraints.
61. When asked what would have been a fair sanction, Mr Maphoso could only say that it would be to get his job back as he is still willing to replace the lost items. He conceded that he cannot connect some of his statements as he is confused. On his failure to put versions to witnesses, the Applicant avowed that he did not tell his representative about some of the things related to his case. In his own words, the Applicant stated that, “…in the letters, I set a trap for myself.”
62. The applicant mentioned Mr Lovelle May a number of times. When asked why he did not bring him as a witness, he admitted that he does not have a reason why he did not bring him to arbitration as his witness.
63. Closing arguments were submitted in writing by both parties.
ANALYSIS OF EVIDENCE AND ARGUMENT
64. The Respondent characterized itself as a “structured organization which has a hierarchy in respect of management and has well established rules that must be complied with in order to ensure functionality and consistency in the behaviour of employees.” The existence nor awareness of applicable rules was not placed in dispute.
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.
66. On procedural fairness, the Chairperson of the disciplinary hearing was accused of clothing himself as a player and referee as well as a witness when the charge of gross dishonesty related to the Game store document was dealt with. I disagree with this characterization. My finding in this regard is that the Chairperson of the disciplinary hearing cannot be blamed for having been present at his own hearing when the Applicant was advised to consider a lay buy of the equipment.
67. The fact that the Applicant later submitted a fraudulent document purported to be proof of a lay buy does not mean that the Chairperson was no longer independent and/ or impartial. No evidence was led on how the Chairperson suddenly became biased or was unduly influenced on this matter except for a belated allegation of procedural unfairness as he knew about the matter beforehand. This is a flawed observation as it is clear that the Chairperson, like other participants in the hearing, was not aware at the time that the document is fraudulent. This was discovered independently by the Respondent in its subsequent investigations. The Chairperson can also not be professed as a witness as no evidence was led so show that he also testified in the hearing about this incident. It is also noteworthy that there is no evidence led that the Chairperson was ever asked to recuse himself from the hearing. I therefore arrived at a determination that the disciplinary hearing proceeded in a fair manner and was concluded without any of these issues raised and dealt with at that stage.
68. Item 4(1) of the Code of Good Practice: Dismissal reads as follows:
“Normally the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state his case in response to the allegations. The employee should be entitled to a reasonable time to prepare a response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.”
69. In this case, the Respondent complied with the above statutory requirements for procedural fairness.
70. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC); [2006] 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. In this case, the Respondent managed to comply with the minimum of what is required for procedural fairness explicated in this case law. I therefore conclude that the procedure adopted by the Respondent in this matter was fair.
71. On substantive fairness, I had no reason to doubt the credibility of Mr Maleka’s version that no one handed over the laptop and projector to him. His evidence was clear and nothing was submitted to the contrary. Ms Maoto’s version about meeting Mr Maleka at the gate was not put to him.
72. The Applicant’s version about meeting Mr Maleka outside of the Finance office for the handover was also not properly dealt with. On both occasions of these supposed handovers, dates were not revealed. Evidence in this regard is therefore lacking and as a consequence, unworthy of any further consideration.
73. I rejected Ms Maoto’s request for CCTV footage as she failed to provide a date of the incident. No one can be expected to go through hundreds of hours of footage over random days with no end. A sensible submission in this regard would have had a date, time and clear location of the handover. An inspection in loco could have also been sought.
74. Mr Maleka is a key witness in this matter but there was no significant effort displayed by the Applicant and his representative to discredit his testimony and/ or to significantly challenge his denials of receiving any equipment. I found this to be anomalous and absurd.
75. As a consequence, I accepted Mr Maleka’s version in its entirety and rejected Mr Maphoso’s attempt to apportion any liability on him. It is also significant that from inception, Mr Maphoso could not recall giving the equipment to Mr Maleka but all of a sudden he was absolutely certain during arbitration. In the pre-arb minutes, it is stated among issues in dispute that, “…the Applicant allegedly returned the laptop to a person within the Finance Department, whose name he cannot recall.” As a result, I found Mr Maphoso’s claim that he handed over the laptop to Mr Maleka to be unreliable and improbable.
76. The Applicant contradicted himself on the documents he wrote versus his oral testimony. He has a number of different versions that cannot be reconciled. The version of Maoto should have been present from the beginning when he was asked by Ms Segage, Mr Mntambo, Advocate Chiloane and to the Chairperson of the hearing over a period of a few months. This proves that this version was a mere afterthought and a fabrication meant to obfuscate issues at arbitration.
77. Ms Maoto’s version contradicted that of the Applicant when she emphasized that the Applicant knew on the same day that she handed over the projector to Mr Maleka. If this was accurate, the Applicant would have not mentioned her name to the Principal for the first time at arbitration, under his cross examination. This was almost two years later.
78. The credibility, reliability and probability of the Applicant’s version was rejected by his own witness, Ms Maoto. She asked on what grounds he would be believed. This completely shattered his case.
79. The Applicant conceded that on the 14th of March 2019 he committed in a letter to the Principal, Advovate Chiloane, to “replace” this equipment by no later than 31 May 2019. The Applicant failed to deliver on his promise. In the same letter, the Applicant was adamant that the laptop and projector were returned. He wrote that, “as for the projector, I did sign for it.” He manifestly contradicted himself at arbitration as he conceded that he never signed as initially claimed.
80. The Principal/ CAO was at pains in explicating the disturbing nature of this misconduct by the Lecturer. The Principal’s outrage cannot go unnoticed. In analyzing evidence in this matter, the unanswered question posed by the Principal, Adv. Chiloane is still inevitable: “What kind of an Educator is this?”
81. I find that this is an Educator that sat in the College Academic Board, a significant decision making body of the institution, but consciously refused to untangle himself from this tawdry affair. He set himself a timeline as to when he will replace the equipment and this was accepted by the College. It is now more than two year later after his own deadline and he has still not done anything about it. There is no sensible reason for why he failed to deliver as promised save to state that he never had any intention to buy these lost items. Consequently, I drew a negative inference from this unacceptable conduct.
82. I found the Applicant’s version that he did not have sufficient time to replace the items to be absurd and unreasonable. He has had approximately three years to date and the items are still not replaced. In closing his testimony at arbitration on the 27th of September 2021, the Applicant asked for another opportunity to purchase these items.
83. The Applicant was definitely deceptive in his conduct and the Respondent’s losses are palpable and undisputed. There is no justification for this misconduct. The facts are conspicuously clear and unshakeable but the Applicant persisted with no leg to stand on in the face of no prospects of success. He conceded under heated cross examination that he lied to the Principal. At that stage, a reasonable person would have given up the continued falsehoods but not Mr Maphoso.
84. In aggravating his state of affairs, when the Applicant was charged for the offence, he brought a document from Game Stores to deliberately mislead his employer that he has initiated a lay buy of these two pieces of equipment. I found it shameful that an Admin Manager from Game Stores had to be brought in to testify on this fraudulent document produced by a dishonest Lecturer and he still denied the glaring evidence against him. The elaborate evidence led by Ms Masango, the Admin Manager from Game, could not be controverted through insignificant cross examination. The Applicant is definitely a recalcitrant offender and a disgrace to the teaching profession.
85. In demonstrating the seriousness of the offences, no one could have done it better than the passionate and animated submissions made by the Principal/ CAO, Advocate Joseph T Chiloane.
86. In Absa Bank v CCMA and Others (JRÂ 1619/13) [2015] ZALCJHB 286 it was held that the moment dishonesty is accepted and the particular case is of such a serious degree as to be described as gross, then dismissal is an appropriate and fair sanction.
87. Furthermore, the applicant failed to show remorse. It is impossible to rehabilitate the conduct of a person that does not acknowledge his shortcomings and/ or mistakes. Furthermore, any victory out of this process might also induce a sense of triumphalism instead of instilling a critical lesson learnt and ultimately imposing behavior change on the Applicant.
88. It is one of the fundamentals of the employment relationship that the Employer should be able to place trust in the Employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it, thereby warranting dismissal.
89. Subsequently and 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:
AWARD
90. The dismissal of the Applicant, Mr Sello Stephen Maphoso, by the Respondent, Tshwane South TVET College, is both procedurally and substantively fair.
91. The dismissal of the Applicant by the Respondent is upheld.
Dated and signed on 15 October 2021.
Vusi Moyo
ELRC Panellist