ELRC644-20/21 EC
Text
PSES 819-18/19FS
Award Date:
04 November 2021
IN THE ELRC HELD AT BETHLEHEM ON 18 SEPTEMBER 2020; 4 AND 5 MARCH 2021; 11 AND 13 MAY 2021; 7 AND 8 JULY 2021; 1 AND 2 SEPTEMBER 2021
CASE NO: PSES 819-18/19FS
In the matter between:
NUPSAW obo M. L. M. Mosolodi Applicant
AND
Department of Higher Education and Respondent
Training (Maluti TVET)
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The hearing was held at the Bethlehem offices of the Respondent on 18 September 2020; 4 – 5 March 2021; 11, 12 and 13 May 2021; 7 and 8 July 2021; 1 and 2 September 2021.
The Applicant was represented by Mr Sour of NUPSAW while Mr Ngcosane represented the Respondent.
ISSUE TO BE DECIDED
2. I have to decide whether or not the dismissal of the Applicant was fair. I have to determine appropriate relief depending on the findings.
BACKGROUND TO THE ISSUE
3. The Applicant was employed as a Senior Lecturer by the Respondent, Maluti TVET College. He was charged with misconduct and found guilty at a disciplinary hearing he did not attend. He was dismissed on 27 November 2018.
SURVEY OF EVIDENCE AND ARGUMENT
The case for the Respondent
Lehlohonolo Terrance Mbatha (Mbatha) testified under oath as briefly stated below:
4. He was a Student at Maluti TVET College during the years 2015 – 2018. The Applicant was his Lecturer in Animal Production.
Towards the time for writing examinations he realized that there were blank spaces against his name which indicated that he had no marks against the subject of Animal Production. He went to enquire from the Applicant why no marks had been indicated against his name as he had written the necessary tests and assignments.
5. The Applicant gave him the POE of a fellow student namely Mkhwane and told him to copy Mkhwane’s work but should not do so by copying the work word by word. He duly copied Mkhwane’s work and returned the POE to the Applicant the following day.
6. The work of Mkhwane which he copied from appeared in pages 47 – 50 and 54 – 59 of A while his version of Mkhwane’s work appeared in pages 44 – 46 and 51 – 53 of A. Mkhwane’s work has been marked and allocated marks while his has not. Even though his work had not been marked, marks were entered against his name in page 42 of A which is the Record Sheet For Vocational Subject namely Animal Production Level 2F in respect of the year 2017.
7. He did not steal the POE of Mkhwane but was given same by the Applicant after he had enquired from him why no marks were indicated against his name even though he had submitted all his work.
8. He was called out of the examination room on the day in which he was writing examination in Animal Production. After he had been taken out of the room he went to enquire from Molatlhegi why he was being denied an opportunity to write. He told Molatlhegi that the Applicant had given him Mkhwane’s POE to copy from. Molatlhegi told him to explain in writing what had occurred and he wrote the letter in page 69 of A. The Applicant was called by Molatlhegi while he was still in her office and the Applicant never informed Molatlhegi that Mkhwane’s POE had been stolen from his office.
Mchetheki Isaac Nhlapo (Nhlapo) testified under oath as briefly stated below:
9. He was the Applicant’s HOD at the material time. The Applicant was a Senior Lecturer and part of the management team of the Campus. The Applicant was the only Lecturer who did not submit mark sheets in his subject namely Animal Production by the expected time. He had to write the letter in page 41 of A in which he stressed to the Applicant the importance of submitting the mark sheets in respect of Assignment 1. The marks in respect of each student are forwarded to DHET in Pretoria. The mark sheets had to be submitted prior to the closure of the Campus but the Applicant had not done so by the closure of the Campus.
10. The mark sheets which the Applicant received from his subordinates, he duly submitted but failed to submit his. This failure of the Applicant to submit the mark sheets of his students related to charge 2 against him. The misconduct charge related to the dates of March 2017 and June 2017. The failure by the Applicant to submit the mark sheets was not his first as he had also failed to submit the March 2017 mark sheets – see page 40 of A. The non-submission or late submission of mark sheets meant that the subject marks of affected students would not be sent or sent on time to DHET in Pretoria for certification of the students.
11. Charge 3 against the Applicant was constituted by him having told Learner Mbatha L. T to copy the work of a fellow learner namely, Mkhwane K. M in or around August – September 2017. The Applicant was consulted regarding the allegations against him. It was the Applicant’’ habit not to submit his students’ marks. It would not be possible for Mbatha to steal Mkhwane’s POE because the POE’s are kept in a lockable cupboard and the doors to the lecturer’s office where the cupboard is, is also lockable. The information in page 42 of A is provided by the Lectures with regard to their subjects. Page 43 of A has been signed by the Applicant and that meant he took responsibility for the contents and attachments thereof. Page 43 was in respect of Task 1 in Animal Production. If Mbatha had indeed stolen Mkhwane’s POE to copy from the Applicant would not have accepted his “result” because it would have been the marks obtained from stealing Mkhwane’s work. The copied work of Mbatha as it appeared on pages 44 – 46 of A has not been marked and it was not known how the Applicant would have arrived at the figures that he had allocated to Mbatha as in page 42 of A.
12. In charge 4 the Applicant was accused of having acted in a grossly dishonest manner and also fraudulently by having allocated marks to Mbatha in respect of Level 2 Animal Production without having marked his scripts in respect of
Test 1 – 72% and
Assignment 1 – 70% and
Internal Examination (T5) – 21%
Mbatha’s scripts in pages 44 – 66 of A were not marked by the Applicant and yet the Applicant allocated him marks. It is against the rules to allocate a student marks on the basis of scripts that had not been marked. After management had received Mbatha’s report the Applicant was given time to go look for his work.
13. In an attempt to have the Applicant change his conduct, he spoke to his close friend Nthebe as well as his relative one Moleko. He never hated the Applicant. The discrepancy in dates between pages 43 of A and 47 of A can only be explained by the Applicant himself as he was the one who had entered both dates on pages 43 of A and 47 of A.
14. Mbatha could not have tried to implicate the Applicant to hide his alleged theft of the POE of Mkhwane because the marks that he was allocated were allocated him by the Applicant. No medical certificates were received that the Applicant was a case of medical incapacity.
The case for the Applicant
Moeketsi Lebalang Mcpherson Mosolodi (Mosolodi) testified under oath as briefly stated below:
15. He was senior lecturer at the time of his dismissal on 10 January 2019. He did not attend his disciplinary hearing. He appealed his dismissal and the appeal authority in Pretoria ruled that he should return to work but the Respondent did not call him back to work. Nhlapo had never spoken to him regarding his attendance of the hearing.
He was closer to students than management so he could communicate information to students. Nhlapo never discussed with him about his closeness to students. Nhlapo did not understand him well. Nhlapo was not telling the truth when he testified that Nthebe and Moleko spoke to him.
A mistake occurred when he allocated ICASS marks in relation to charge 1. Mbatha had stolen Mkhwane’s POE and he did not give it to him. Mbatha and Mkhwane’s work was the same because he marked according to a memorandum. He could not be held responsible for Mbatha having stolen Mkhwane’s portfolio. Mbatha and Mkhwane did not get the same marks in Test 1. Mbatha may have stolen the POE of Mbatha while he might have told his office colleague that he had sent him to the office to get the POE. Mbatha did not mention his name in the letter that he had written to the College management. He did not remember why the student’s work in pages 60 – 63 had not been marked.
16. He started having medical problems in October 2012 after he was attacked in his house by assailants. After the attack, he became forgetful and his work suffered (He was now fit and could work). In 2015 his performance at work nosedived as a result of the attack. As a result of his sickness, he was duped out of funds when someone used his personal information to raise a loan. He sought to be reinstated.
He had acknowledged receipt of the letter which informed him about the hearing of 16 and 17 February 2018. On 13 March 2018 the attendance register showed that he was on duty. He could not attend the hearing of that date because he was sick. He did not know that his appeal was not considered because he had already referred a dismissal dispute to the ELRC in January 2019.
17. With regard to charge 1 he had sent the correct marks to Pretoria but his students did not receive results and had to re-register for the same course the following year. It was only the students who were studying his course who had to re-register. He had sent wrong marks to Pretoria and that resulted in the students study period having to be extended as they had to repeat the affected course.
18. With regard to charge 2, he denied that he failed to submit POE’s in March and June 2017 as alleged. He had submitted the mark sheet in April 2017 before the re-opening of Schools. He denied that Nhlapo told him in April 2017 and in June 2017 to submit the mark sheets and that he had not complied with the instruction. It was not his duty to contest the testimony of Nhlapo on this aspect. He did not understand why Nhlapo testified about him as he had done. Nhlapo had been on his neck since the students had to re-register for his course and was opposing him which oppression contributed to his stress. He was living like a hare in the workplace after his students had to register. He admits having submitted the mark sheets for March 2017 late but the June mark sheets he had submitted on time.
19. With regard to charge 3, he denied having given Mbatha the POE of Mkhwane to copy. He became aware that Mbatha had stolen Mkhwane’s POE when he was made aware by the campus manager – after he had taken Mbatha out of the examination room. He realized that the POE’s of the two students were the same when the campus manager demanded same from him. At the time of the verification process Mbatha had been allocated marks.
He did not contest Mbatha’s testimony when he testified that he did not have marks during the verification process because it was not yet his chance to speak. He did not know when Mbatha had stolen Mkhane’s POE. He got the marks which he wrote against the names of the students in page 42 of A from the scripts of the students. He has no idea how Mbatha could have stolen Mkhwane’s script and he had never sent Mbatha to his office. Each and every student stole. He was the one who signed off on A 43 i.e Mbatha’s marks on Animal Production as well on page A 47 regarding Mkhwane’s test results in the same subject. He did not mark Mbatha’s test and did not know what to say. He did not remember where he got the marks that he had entered in page 43 of A. With regard to the mark in page 51 of A he was confused. He also did not know what happened that had led him to award Mbatha 21 marks for his unmarked work that appeared in pages A 60 – 63. He agreed that he could not justify the marks that had been allocated to Mbatha as they appeared in page 42 of A.
20. He was suffering from High Blood pressure and forgetfulness. The forgetfulness started after he was assaulted in 2012. He was of the view that his case was not one of misconduct but one of incapacity. It was a pity that none of those he had consulted did not write that he was suffering from forgetfulness. His case was about ill-health and not misconduct. He should be re-instated because he has made mistakes like everyone else and he has learned from his mistakes and was prepared to correct the mistakes. He was aware of the seriousness of his mistakes and his forgetfulness is better now.
21. None of the medical certificates which he had submitted to the Respondent were turned down. He was not offered any assistance by the Respondent as a result of the stress that he suffered from following a fraudulent loan that was raised in his name. He had reported to Nhlapo about the fraudulent loan. Thateng did not appeal on his behalf but merely guided him. When he was not receiving any feedback on his appeal he travelled to Pretoria where he met a Mr Chamane who told him that he would communicate with the Respondent College.
Tsiliso James Moleko (Moleko) testified under oath as briefly stated below:
22. He knew the Applicant and the two grew up together as brothers. They worked together for some time at Sefikeng College. Nhlapo never spoke to him about the Applicant. In 2012 he was transferred to the Central Office where he was a student support officer. After the Applicant was injured (he did not remember the year) he noticed forgetfulness on his part – he would arrange with him to prepare students but would have forgotten when he got to his workplace. Had Nhlapo requested him to talk to the Applicant he would have done so. When he needed the Applicant he would learn that he was off sick. He took early pension in November 2019. He did not know the reason for the forgetfulness he had noticed in the Applicant. He did not report to anyone about the forgetfulness he had noticed in the Applicant because he thought there were people whose duty it was to look after the employees. Reading from page 8 of B the Respondent was aware that the Applicant needed to be referred to a Psychologist.
Kenegiloe Florence Nomgaga (Nomgaga) testified under oath as briefly stated below:
23. She was the Applicant’s sister. She was an energetic worker who attended work faithfully. After her brother was assaulted in October 2012 she noticed changes in him which included forgetfulness. Before the assault, he was not forgetful and at times, he would be the one who reminded her about things they had talked about and agreed on. After the assault the Applicant used to suffer from headaches. The Applicant knew nothing about having been hospitalized or having used a wheelchair after his discharge from hospital. She thought the Respondent should have been aware of the Applicant’s forgetfulness given the extent of his visible injuries. The Applicant told her that the person who assisted him while he was in hospitalized defrauded him. The Applicant also told her that even though the fraudster had undertaken to pay him back at the rate of R500-00 per month, he only paid him once and has never kept on paying. It was not fair for the Respondent to have charged the Applicant because his condition may have caused him to act as he did. The Respondent should have referred him to professionals for help.
24. After his discharge from hospital, the Applicant was speaking amazing things during the (24) twenty-four hours she had spent with him after discharge from hospital. She was not in a position to say how the Applicant conducted himself while he was on duty. She did not know that he ever forgot to report for duty but she was aware of an incident when he had forgotten his car with the keys inside. His assailants were able to enter his house and assault him because he had forgotten to lock his kitchen door. His forgetfulness started after the attack on him.
Malefetsane Nthebe (Nthebe) testified under oath as briefly stated below:
25. He knew the Applicant and once worked with him at Sefikeng College. Nhlapo spoke to him and told him that the Applicant was giving problems at the workplace and requested him to talk to the Applicant. He never talked to the Applicant as requested because Nhlapo had brought that up at the end of their talks and regarded it as not that important. The talk with Nhlapo was long after the assault on the Applicant. In his view the Applicant never recovered fully after the attack till today as compared to how he was before the attack. He asked Nhlapo about the changed condition of the Applicant and whether the Respondent would be referring him for help. He did not know what the response of Nhlapo was.
Given the change in the Applicant it would not be possible to talk to him as Nhlapo had suggested. The Applicant used to chase him away when he visited him after the assault. The Applicant would tell him about his disciplinary case a day prior to its scheduled hearing and this to him was an induction of the extent of his injury. The observations he had made regarding the changes in the Applicant were not based on any medical knowledge but purely on his knowledge of the Applicant prior to and after the attack on him. The changes in the Applicant started earlier than the attack on him.
THE CLOSING ARGUMENT OF THE RESPONDENT
26. The Respondent’s closing argument was as follows:
PROCEDURAL FAIRNESS
26.1 The Applicant was dismissed after a hearing he had failed to attend despite notice of hearing having been given to him. There was a pattern on the part of the Applicant to submit medical certificates whenever he was to attend a scheduled hearing. The Applicant had shown that he had no intention to attend his hearing.
26.2 The Applicant was not denied a right to appeal but he sought to exercise that right by making use of a Mr Thateng who had no right to act on his behalf. When the Applicant visited the Respondent’s Head Office in Pretoria on 25 April 2019, he had already referred a dispute to the ELRC and the first sitting of the scheduled arbitration hearing was postponed on 26 February 2019.
SUBSTANTIVE FAIRNESS
26.3 The Applicant’s reliance on medical incapacity was not supported by medical reports. One of the medical certificates on which the Applicant sought to rely stated that the head injury that he had suffered was not serious.
26.4 The many medical certificates which the Applicant had submitted to support his claim of medical incapacity were the same medical certificates which he had submitted in order not to attend the many hearings of his misconduct case.
26.5 It was important to state that the Applicant appear to have become aware of his medical incapacity only after his dismissal.
26.6 The Applicant had admitted that he had committed the misconduct set out in charges 1 and 4 by having asked for forgiveness in respect of charge 1 while he also admitted that he had given Mbatha marks though his script had not been marked.
26.7 With regard to charge 2 the Applicant submitted that he had submitted the June results late without producing any evidence to support that or why he had submitted them late.
26.8 The allegation of the Applicant that Mbatha had stolen the work of the other student was not supported by any evidence.
26.9 The charges against the Applicant were serious. The charge of having given a student another student’s work to copy would on its own justify dismissal. The students who had to repeat the course because of his misconduct were prejudiced in that their study period was lengthened through no fault of theirs. The Respondent incurred financial loss for having to let the students repeat at its cost.
In the light of the foregoing the dismissal of the Applicant should be found to have been procedurally and substantively fair.
THE CLOSING ARGUMENT OF THE APPLICANT
27. The closing argument of the Applicant was as follows:
27.1 The Respondent received his medical certificates and also approved sick leave for him. In the light hereof the Respondent failed to discharge its duty in terms of section 3 of Schedule 1 of the Employment of Educators Act.
27.2 Section 7 of the Promotion of Administration of Justice Act should be extended to this arbitration.
27.3 He seeks to enforce his constitutional rights which have been infringed by the Respondent for its failure to discharge the statutory duties set out in item/section (sic) 3 of Schedule 1 of the EEA, 1998.
27.4 The Respondent should have taken steps to investigate his incapacity because of his health condition.
27.5 The Respondent failed to follow a fair procedure regarding his ill-health. Even the campus manager Molatlhegi was aware way back in October 2017 that he had a problem in relation to poor work performance.
27.6 As a result of his psychological diagnoses (stress) he was not in a good frame of mind psychologically, hence he allocated wrong marks to students.
27.7 He has shown remorse as in page 1 of B by acknowledging his wrongdoing and has not persisted with denials.
27.8 Nhlapo’s evidence was not corroborated and its veracity is doubted.
27.9 He launched his appeal on the same day that he received his notice of termination and his appeal was granted by Chamane.
He sought to be reinstated retrospectively. The process of incapacity/ill-health be re-opened alternatively his early retirement should be considered. His appeal salary should be paid retrospectively.
28. The Respondent’s reply to the Applicant’s closing argument was as follows:
28.1 The Respondent had no obligation to investigate anything regarding the severity of the Applicants head injuries as there was nothing which suggested such. He was certified fit to resume duties after the three month’s sick leave.
28.2 The Respondent opposes the view that the law binds it to investigate alternatives to dismissal on the basis of long absence from work. The Applicant is using his injuries of 2012 as scapegoat to explain his conduct of 2016 and 2017.
28.3 The Applicant’s medical certificate which he submitted on 9 March 2018 was accepted and the hearing was postponed. The hearing on 13 March 2013 took place while the Applicant was on duty but had not attended his hearing. He was not on sick leave on 13 March 2013.
28.4 The Employment of Educators Act did not apply to the Applicant. He was appointed in terms of the Continuing Education and Training Act, 2006 which was previously the Further Education and Training College Act.
28.5 The Applicant was charged with misconduct and not with poor work performance.
28.6 The Applicant did not show any remorse because he continued with his misconduct. At the arbitration hearing, he was adamant that he had done nothing wrong.
ANALYSIS OF EVIDENCE AND ARGUMENT
29. In this dispute the Applicant was dismissed after a disciplinary hearing which he did not attend. It appeared from the documentary evidence which was submitted on behalf of the Respondent that the disciplinary hearing which was initially set down on 16 and 17 January 2018 could not proceed due to a psychologist’s note issued on 16 January 2018 – the first day on which the hearing was to have commenced. The hearing was rescheduled to take place on 9 March 2018 and 13 January 2018 but the Applicant did not attend. The hearing proceeded in the absence of the Applicant and those two days. All the notices of hearing which were sent to the Applicant notified him that if he did not attend the hearing and could not give reasonable grounds for failure to attend the hearing might be held in his absence. The onus was on the Applicant to provide reasonable grounds for failing to attend a scheduled hearing. Those grounds had to be submitted to the person who was empowered to consider their reasonableness or otherwise namely the chairperson of the disciplinary hearing. It was only the chairperson of the disciplinary hearing who could decide whether or not the grounds for non-attendance were reasonable and whether or not they justified postponement of the hearing. It seems to me that the person that must attend a disciplinary hearing cannot merely stay away from a hearing simply on the basis of having submitted what in his belief justified his non-attendance – he must await the decision of the chairperson of the hearing as to the reasonableness or otherwise of his reasons/grounds for non-attendance. If the person charged simply stayed away without knowing what the decision of the chairperson was, he would have decided on his own not to attend the hearing and such non-attendance would entitle the chairperson to proceed in his absence, in my view.
30. The Applicant conceded during cross examination that his hearing was initially set down for 9 November 2017 but could not go ahead because his representative told the hearing that he had been given instructions on 8 November 2017 – see the attendance register on page 12 of A. It was that hearing which was rescheduled to 16 and 17 January 2018 – the Applicant did not attend but had merely submitted a psychologist’s note through fax on 16 January 2018. The hearing of 16 and 17 January was postponed to 9 March 2018 and this hearing too the Applicant did not attend. The attendance register showed that the Applicant was present at the workplace on 13 March 2018 when the hearing which had commenced on 9 March 2018 proceeded in his absence. Nhlapo testified that he had personally informed the Applicant on 9 March 2018 that he should attend his disciplinary hearing but he did not.
31. What is clear from the evidence before me is that in respect of the date of 13 March 2018, the Applicant did not submit anything to the chairperson of the hearing with regard to his absence at the hearing. The Applicant simply did not attend. I find that the Applicant did not want to attend his disciplinary hearing on 13 March 2018. His deliberate decision not to attend on 13 March 2018 amounted to the Applicant waiving his right to be heard and the continuation of the disciplinary enquiry in his absence under those circumstances did not affect the validity of the sanction of dismissal that was arrived at – Old Mutual Life Assurance Co of SA Ltd v Gumbi (2007) 4 ALL SA 866 (SCA). The Applicant’s deliberate absence from his hearings on 13 March 2018 followed on three earlier postponements at his instance where he informed the hearing on the date of the hearing itself that he was unable to attend. Clearly the Respondent could not keep on postponing the hearing ad infinitum particularly with regard to the dates of 9 and 13 March 2013 given the proven history of the Applicant staying away from his hearing without the blessing of the chairperson of the hearing.
32. As I have already found that the Applicant waived his right to be heard at the disciplinary hearing and that his absence did not affect the validity of the dismissal arrived at in his absence. In the Labour Appeal Court matter of Fidelity Cash Management Service v CCMA & others (2008) 3 BLLR 197 (LAC) where he employer had sought to introduced a new charge after the dismissal of an employee, the Court held that the fairness of the dismissal must be based on the reasons relied on by the employer at the time of the dismissal. In other words in this dispute the fairness or otherwise of the dismissal of the Applicant must be determined on the basis of the reasons relied on by the employer at the time of the dismissal. By extension the testimony that would be relevant for such a determination would be the testimony that was adduced during the hearing that led the employer to a sanction of dismissal.
33. In the matter of Mokoena v Merafong City Local Municipality and Another 41 ILJ 2882 (LC) 2020 the employee of the municipality had approached the Labour Court seeking among others that the Court declare that the allegations for which she had been suspended related to poor work performance and not misconduct and that her suspension was inappropriate as a result. In dismissing the employee’s application the Court held that it was the prerogative of the employer to determine or classify the nature of the allegations against the employee’s to prescribe the process to be followed and not the employee’s. Furthermore, the Court held that it would be improper for the Court to determine or classify the nature of the allegations against the municipal employee’s and prescribe the process to be followed.
34. In this dispute the Applicant seeks of the ELRC to do exactly what the Court has held in the Mokoena judgment that it would be inappropriate to do – namely to tell the Respondent that it should not have brought misconduct charges against him but should have treated his conduct as incapacity due to injuries sustained! I find – on the authority of the Mokoena judgment that it was the Respondent’s prerogative to determine or classify the nature of the allegations against the Applicant as misconduct as well as to prescribe the process to be followed and that the Applicant had no say in that determination as he had belatedly attempted to do. The principle laid down in the Mokoena judgment puts paid to the Applicant’s misconstrued stance that he should not have been charged with misconduct but instead should have been treated as a case of incapacity due to ill-health/injury. It follows that I reject all the testimony of the Applicant and all his witnesses which sought to make the case that the Applicant should not have been charged with misconduct but should have been treated as a case of incapacity due to ill-health/injury. At any rate there was no acceptable medical testimony before me by appropriately qualified people that indeed the Applicant suffered from what he testified he did that such information was duly communicated to the Respondent. All what the Applicant sought to do was to give the many medical certificates he had submitted an unfounded interpretation that they indicated a health condition that warranted the process of incapacity due to ill-health.
35. The Applicant sought to advance the view that the outcome of his appeal was not implemented. At some stage he testified under oath that the outcome of the appeal was reinstatement. Later on he stated that the outcome of the appeal was that his salary should have been reinstated pending the outcome of his appeal! I did not hear the Applicant contesting the position of the Respondent that Chamane with whom the Applicant met in Pretoria was not the Appeal Authority of the Respondent and had no authority to write the letter that he had. Given that it was the Applicant’s position that Chamane had reinstated him/his salary as the appeal authority one would have expected him to have called Chamane as a witness on such a vital aspect of his case – he did not. It is noteworthy that on 10 January 2019 a letter as in page 35 of A was written to the Applicant by the Respondent to the effect that the “appeal” he had lodged was not regarded as having been proper in that it was launched on his behalf by a Mr Thateng who had allegedly no locus standi to do so. I was not made aware of any response by the Applicant to that letter of the Respondent. Any assertions by the Applicant that he had handled the appeal on his own and that Thateng only advised him on how to go about it are shown to be untrue by the letter which was written by Chamane on 27 April 2019 regarding his appeal and that letter was sent to the Respondent and copied to: qwaqwa@nupsaw.org.za, Gladys Mapheto. If indeed Thateng did not file the appeal purporting to do so as NUPSAW there would have been no need at all to use the union’s email address as has happened. Not even the name of the Applicant appears as one of the addressees who were copied which on itself puts the lie to the Applicant’s testimony that he had filed the appeal on his own. The union NUPSAW had written to the CCMA on 26 September 2018 to the effect that Thateng was no longer an office bearer of the Union and that he had no authority to represent its members – see page 93 of A. It must follow that at the time that Thateng handled the Applicant’s appeal he was not acting as an officer bearer of NUPSAW and that the “appeal” was not filed by an authorized person.
I find no unfairness on the part of the Respondent for not having considered the “appeal” in question.
36. The Applicant also sought to make a case that he was not notified about the hearing of 9 and 13 March 2018. Strangely and despite the Applicant’s protestation that he was not aware of the hearing of 9 March 2018 he had submitted (true to his established practice) a sick note from a Dr Mazibuko to the effect that he was not fit for work from 8 to 9 March 2018! Again true to practice the Applicant did not bother to attend the hearing to find out for himself what the chairperson of the hearing would say regarding the medical certificate – he had unilaterally decided to stay away from the hearing – a process over which the Chairperson had a right to proceed without the presence of the Applicant and which was what had happened upon the application by the Respondent – see paragraphs 4, 5, 6 and 8 of page 19 of A (the Chairman’s findings). The hearing of 9 March 2018 was adjourned and continued on 13 March 2018. The Applicant testified that he was on sick leave on that date but the workplace’s attendance register showed that he was on duty on that day – see page 17 of A where he had signed on and off duty on 13 March 2018. Nhlapo testified that he personally informed and reminded the Applicant that it was the day of his hearing on 13 March 2018. Despite this the Applicant did not attend. He would not have testified that he could not attend the hearing on 13 March 2018 because he was allegedly on sick leave, he was not aware that there would be a hearing on that date. At any rate Nhlapo had testified that he reminded him of his hearing on 13 March 2018 before he (Nhlapo) left for the hearing. This testimony of Nhlapo was not contested when he was cross-examined. The Applicant – who was represented by a Union official gave a difficult-to-understand explanation that he did not contest Nhlapo’s testimony because it was not yet his turn to speak! I reject this explanation. What is also interesting to observe is that the Applicant’s own witness Nthebe testified that the Applicant once told him on the eve of his disciplinary hearing that he had to attend a hearing. The probabilities tilt towards that hearing which he talked about to Nthebe having being the one of 13 March 2018. This is so because that was the hearing for which he had not submitted a sick note as per his habit and practice. It could not have been any other hearing but the one of 13 March 2018 because with the rest he had simply stayed away without letting the Chairperson of the hearing to assess whether or not to grant a postponement. I find that the Applicant probably knew about the hearing of 13 March 2018 besides having been specifically reminded of it by Nhlapo on 13 March 2018. He deliberately decided not to attend.
37. The Applicant conceded under cross examination that his students for L2 and L3 Animal Production had to repeat in 2018 because wrong ICASS marks had been submitted. No one else but the Applicant could have submitted the wrong ICASS marks in the subject for which he and no one else was responsible. His concession was despite him earlier having insisted that he had submitted correct marks. I find that the Respondent has made out charge 1 against the Applicant.
With regard to charge 2 the Applicant denied it completely and also denied that Nhlapo ever spoke to him in April 2017 and June 2017 to submit the mark sheets. The Applicant raised his denials for the first when he testified in-chief. He even stated that Nhlapo had been hunting him down like a hare in the workplace because of his students having had to register. The difficulty with the version of the Applicant is that it was not put to Nhlapo during his cross-examination so that he could deal with same. His explanation for his failure to do so was that it was not yet his time to state his case. This is no excuse at all given that he was represented by a seasoned union official. The reasonable inference from the Applicant’s failure to put his version to Nhlapo during his cross-examination is that he knew or suspected that it would be shot down by Nhlapo alternatively he had made up his version during his evidence-in-chief. I have found Nhlapo to be a truthful and candid witness who could not make up stories against anyone including the Applicant. On the other hand the Applicant was an inconsistent and unreliable witness who would not hesitate to pass anything off as the truth in order to defend himself. I find that the Respondent has made out charge 2 against the Applicant.
38. The Applicant denied having made himself guilty of Charge 3 by denying having encouraged or given Mbatha the POE of Mkhwane to copy from. His version was that Mbatha stole the POE from his staff office. This despite the uncontroverted testimony of Nhlapo that it was not possible to steal a POE that is kept in a lockable office. As to how Mbatha could have stolen the POE from his lockable office, the Applicant testified that Mbatha may have gone to his office while only his colleague was in it and told him (the colleague) that he (Mbatha) had been sent by the Applicant to fetch Mkhwane’s POE. This amazing testimony of the Applicant was not backed up by him calling the colleague to give credence to the assumption. That this version of Mbatha having stolen Mkhwane’s POE is a fabrication that came to life only at the time of arbitration is borne out by the fact that at no stage did the Applicant mention it to Molatlhegi or Nhlapo at the time of Mbatha being taken out of the examination room when it came to light that he had copied Mkhwane’s work. Mbatha had already reported to Molatlhegi at that stage that the Applicant had given him Mkhwane’s POE to copy from. That was the opportune time for the Applicant to tell all about Mbathas theft of the POE.
39. With regard to charge 4 the Applicant testified in-chief that the marks that he had written against Mbatha’s name in page 42 of A (Marks for ICASS Tasks) he had taken from Mbatha’s scripts. Under cross examination the Applicant stated that he did not know where he got the marks from i.e. the marks that he had allocated to Mbatha. He conceded further that he did not mark Mbatha’s test. He did not know where he got the marks of 21 which he had allocated to Mbatha in respect of his unmarked work that appeared in page 60 – 63 of A. He also conceded under cross examination that he could not justify the marks that he had allocated to Mbatha as in page 42 of A. I find that the Respondent has made out charge 4 against the Applicant.
40. In view of the above, I find that the Applicant is guilty of all the charges against him. Charge 4 goes to the heart of the trust relationship that ought to exist between Applicant and the Respondent and his conduct regarding the charge in question has broken the trust relationship beyond repair. The charge has shown up the Applicant as a dishonest employee who is not worthy of trust. Likewise, that the Applicant saw nothing wrong in him giving Mbatha the work of Mkhwane to copy in an attempt to cover up his failure to take care of the results of Mbatha and to record them accordingly, showed him up as a senior lecturer who had no interests of his students at heart. As if his conduct was not reprehensible enough, the Applicant concocted a version that Mbatha had stolen POE from his office – a clear sign of an employee with no remorse. His failure – which he sought to deny – to submit the results of his students let to his students missing out on the year in question and having to re-register the following year and at the Respondent’s expense. For his failure submit the POE’s in time in 2017 he sought to deflect his responsibility by cooking up an explanation that Nhlapo did not like him. In my view each and every charge against the Applicant warrants a sanction of dismissal. He has shown no remorse at all. After he had deliberately decided not to attend his disciplinary hearings by submitting sick notes which he did give the chairperson of the hearing to evaluate, he finally ignored the hearing of 13 March 2018 without any reason. He then thought out a porous defence of alleged incapacity which he could not establish. In the course of the arbitration he testified that his claimed medical condition has so improved that he should be reinstated. He held this position despite his own sister and Nthebe having testified in his presence that his health condition had become worse – this shows that inconsistency and incoherence are always the hallmarks of a fabricated testimony!
41. In view of all the above I find that the dismissal of the Applicant was procedurally and substantively fair.
AWARD
42. I find that the dismissal of Moeketsi Lebalang Mcpherson Mosolodi by the Department of Higher Education and Training (Maluti TVET College) was procedurally and substantively fair.
43. I dismiss the application herein.
ELRC PANELIST: M. MOLOI
CASE NO: PSES 819-18/19FS
In the matter between:
NUPSAW obo M. L. M. Mosolodi Applicant
AND
Department of Higher Education and Respondent
Training (Maluti TVET)
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The hearing was held at the Bethlehem offices of the Respondent on 18 September 2020; 4 – 5 March 2021; 11, 12 and 13 May 2021; 7 and 8 July 2021; 1 and 2 September 2021.
The Applicant was represented by Mr Sour of NUPSAW while Mr Ngcosane represented the Respondent.
ISSUE TO BE DECIDED
2. I have to decide whether or not the dismissal of the Applicant was fair. I have to determine appropriate relief depending on the findings.
BACKGROUND TO THE ISSUE
3. The Applicant was employed as a Senior Lecturer by the Respondent, Maluti TVET College. He was charged with misconduct and found guilty at a disciplinary hearing he did not attend. He was dismissed on 27 November 2018.
SURVEY OF EVIDENCE AND ARGUMENT
The case for the Respondent
Lehlohonolo Terrance Mbatha (Mbatha) testified under oath as briefly stated below:
4. He was a Student at Maluti TVET College during the years 2015 – 2018. The Applicant was his Lecturer in Animal Production.
Towards the time for writing examinations he realized that there were blank spaces against his name which indicated that he had no marks against the subject of Animal Production. He went to enquire from the Applicant why no marks had been indicated against his name as he had written the necessary tests and assignments.
5. The Applicant gave him the POE of a fellow student namely Mkhwane and told him to copy Mkhwane’s work but should not do so by copying the work word by word. He duly copied Mkhwane’s work and returned the POE to the Applicant the following day.
6. The work of Mkhwane which he copied from appeared in pages 47 – 50 and 54 – 59 of A while his version of Mkhwane’s work appeared in pages 44 – 46 and 51 – 53 of A. Mkhwane’s work has been marked and allocated marks while his has not. Even though his work had not been marked, marks were entered against his name in page 42 of A which is the Record Sheet For Vocational Subject namely Animal Production Level 2F in respect of the year 2017.
7. He did not steal the POE of Mkhwane but was given same by the Applicant after he had enquired from him why no marks were indicated against his name even though he had submitted all his work.
8. He was called out of the examination room on the day in which he was writing examination in Animal Production. After he had been taken out of the room he went to enquire from Molatlhegi why he was being denied an opportunity to write. He told Molatlhegi that the Applicant had given him Mkhwane’s POE to copy from. Molatlhegi told him to explain in writing what had occurred and he wrote the letter in page 69 of A. The Applicant was called by Molatlhegi while he was still in her office and the Applicant never informed Molatlhegi that Mkhwane’s POE had been stolen from his office.
Mchetheki Isaac Nhlapo (Nhlapo) testified under oath as briefly stated below:
9. He was the Applicant’s HOD at the material time. The Applicant was a Senior Lecturer and part of the management team of the Campus. The Applicant was the only Lecturer who did not submit mark sheets in his subject namely Animal Production by the expected time. He had to write the letter in page 41 of A in which he stressed to the Applicant the importance of submitting the mark sheets in respect of Assignment 1. The marks in respect of each student are forwarded to DHET in Pretoria. The mark sheets had to be submitted prior to the closure of the Campus but the Applicant had not done so by the closure of the Campus.
10. The mark sheets which the Applicant received from his subordinates, he duly submitted but failed to submit his. This failure of the Applicant to submit the mark sheets of his students related to charge 2 against him. The misconduct charge related to the dates of March 2017 and June 2017. The failure by the Applicant to submit the mark sheets was not his first as he had also failed to submit the March 2017 mark sheets – see page 40 of A. The non-submission or late submission of mark sheets meant that the subject marks of affected students would not be sent or sent on time to DHET in Pretoria for certification of the students.
11. Charge 3 against the Applicant was constituted by him having told Learner Mbatha L. T to copy the work of a fellow learner namely, Mkhwane K. M in or around August – September 2017. The Applicant was consulted regarding the allegations against him. It was the Applicant’’ habit not to submit his students’ marks. It would not be possible for Mbatha to steal Mkhwane’s POE because the POE’s are kept in a lockable cupboard and the doors to the lecturer’s office where the cupboard is, is also lockable. The information in page 42 of A is provided by the Lectures with regard to their subjects. Page 43 of A has been signed by the Applicant and that meant he took responsibility for the contents and attachments thereof. Page 43 was in respect of Task 1 in Animal Production. If Mbatha had indeed stolen Mkhwane’s POE to copy from the Applicant would not have accepted his “result” because it would have been the marks obtained from stealing Mkhwane’s work. The copied work of Mbatha as it appeared on pages 44 – 46 of A has not been marked and it was not known how the Applicant would have arrived at the figures that he had allocated to Mbatha as in page 42 of A.
12. In charge 4 the Applicant was accused of having acted in a grossly dishonest manner and also fraudulently by having allocated marks to Mbatha in respect of Level 2 Animal Production without having marked his scripts in respect of
Test 1 – 72% and
Assignment 1 – 70% and
Internal Examination (T5) – 21%
Mbatha’s scripts in pages 44 – 66 of A were not marked by the Applicant and yet the Applicant allocated him marks. It is against the rules to allocate a student marks on the basis of scripts that had not been marked. After management had received Mbatha’s report the Applicant was given time to go look for his work.
13. In an attempt to have the Applicant change his conduct, he spoke to his close friend Nthebe as well as his relative one Moleko. He never hated the Applicant. The discrepancy in dates between pages 43 of A and 47 of A can only be explained by the Applicant himself as he was the one who had entered both dates on pages 43 of A and 47 of A.
14. Mbatha could not have tried to implicate the Applicant to hide his alleged theft of the POE of Mkhwane because the marks that he was allocated were allocated him by the Applicant. No medical certificates were received that the Applicant was a case of medical incapacity.
The case for the Applicant
Moeketsi Lebalang Mcpherson Mosolodi (Mosolodi) testified under oath as briefly stated below:
15. He was senior lecturer at the time of his dismissal on 10 January 2019. He did not attend his disciplinary hearing. He appealed his dismissal and the appeal authority in Pretoria ruled that he should return to work but the Respondent did not call him back to work. Nhlapo had never spoken to him regarding his attendance of the hearing.
He was closer to students than management so he could communicate information to students. Nhlapo never discussed with him about his closeness to students. Nhlapo did not understand him well. Nhlapo was not telling the truth when he testified that Nthebe and Moleko spoke to him.
A mistake occurred when he allocated ICASS marks in relation to charge 1. Mbatha had stolen Mkhwane’s POE and he did not give it to him. Mbatha and Mkhwane’s work was the same because he marked according to a memorandum. He could not be held responsible for Mbatha having stolen Mkhwane’s portfolio. Mbatha and Mkhwane did not get the same marks in Test 1. Mbatha may have stolen the POE of Mbatha while he might have told his office colleague that he had sent him to the office to get the POE. Mbatha did not mention his name in the letter that he had written to the College management. He did not remember why the student’s work in pages 60 – 63 had not been marked.
16. He started having medical problems in October 2012 after he was attacked in his house by assailants. After the attack, he became forgetful and his work suffered (He was now fit and could work). In 2015 his performance at work nosedived as a result of the attack. As a result of his sickness, he was duped out of funds when someone used his personal information to raise a loan. He sought to be reinstated.
He had acknowledged receipt of the letter which informed him about the hearing of 16 and 17 February 2018. On 13 March 2018 the attendance register showed that he was on duty. He could not attend the hearing of that date because he was sick. He did not know that his appeal was not considered because he had already referred a dismissal dispute to the ELRC in January 2019.
17. With regard to charge 1 he had sent the correct marks to Pretoria but his students did not receive results and had to re-register for the same course the following year. It was only the students who were studying his course who had to re-register. He had sent wrong marks to Pretoria and that resulted in the students study period having to be extended as they had to repeat the affected course.
18. With regard to charge 2, he denied that he failed to submit POE’s in March and June 2017 as alleged. He had submitted the mark sheet in April 2017 before the re-opening of Schools. He denied that Nhlapo told him in April 2017 and in June 2017 to submit the mark sheets and that he had not complied with the instruction. It was not his duty to contest the testimony of Nhlapo on this aspect. He did not understand why Nhlapo testified about him as he had done. Nhlapo had been on his neck since the students had to re-register for his course and was opposing him which oppression contributed to his stress. He was living like a hare in the workplace after his students had to register. He admits having submitted the mark sheets for March 2017 late but the June mark sheets he had submitted on time.
19. With regard to charge 3, he denied having given Mbatha the POE of Mkhwane to copy. He became aware that Mbatha had stolen Mkhwane’s POE when he was made aware by the campus manager – after he had taken Mbatha out of the examination room. He realized that the POE’s of the two students were the same when the campus manager demanded same from him. At the time of the verification process Mbatha had been allocated marks.
He did not contest Mbatha’s testimony when he testified that he did not have marks during the verification process because it was not yet his chance to speak. He did not know when Mbatha had stolen Mkhane’s POE. He got the marks which he wrote against the names of the students in page 42 of A from the scripts of the students. He has no idea how Mbatha could have stolen Mkhwane’s script and he had never sent Mbatha to his office. Each and every student stole. He was the one who signed off on A 43 i.e Mbatha’s marks on Animal Production as well on page A 47 regarding Mkhwane’s test results in the same subject. He did not mark Mbatha’s test and did not know what to say. He did not remember where he got the marks that he had entered in page 43 of A. With regard to the mark in page 51 of A he was confused. He also did not know what happened that had led him to award Mbatha 21 marks for his unmarked work that appeared in pages A 60 – 63. He agreed that he could not justify the marks that had been allocated to Mbatha as they appeared in page 42 of A.
20. He was suffering from High Blood pressure and forgetfulness. The forgetfulness started after he was assaulted in 2012. He was of the view that his case was not one of misconduct but one of incapacity. It was a pity that none of those he had consulted did not write that he was suffering from forgetfulness. His case was about ill-health and not misconduct. He should be re-instated because he has made mistakes like everyone else and he has learned from his mistakes and was prepared to correct the mistakes. He was aware of the seriousness of his mistakes and his forgetfulness is better now.
21. None of the medical certificates which he had submitted to the Respondent were turned down. He was not offered any assistance by the Respondent as a result of the stress that he suffered from following a fraudulent loan that was raised in his name. He had reported to Nhlapo about the fraudulent loan. Thateng did not appeal on his behalf but merely guided him. When he was not receiving any feedback on his appeal he travelled to Pretoria where he met a Mr Chamane who told him that he would communicate with the Respondent College.
Tsiliso James Moleko (Moleko) testified under oath as briefly stated below:
22. He knew the Applicant and the two grew up together as brothers. They worked together for some time at Sefikeng College. Nhlapo never spoke to him about the Applicant. In 2012 he was transferred to the Central Office where he was a student support officer. After the Applicant was injured (he did not remember the year) he noticed forgetfulness on his part – he would arrange with him to prepare students but would have forgotten when he got to his workplace. Had Nhlapo requested him to talk to the Applicant he would have done so. When he needed the Applicant he would learn that he was off sick. He took early pension in November 2019. He did not know the reason for the forgetfulness he had noticed in the Applicant. He did not report to anyone about the forgetfulness he had noticed in the Applicant because he thought there were people whose duty it was to look after the employees. Reading from page 8 of B the Respondent was aware that the Applicant needed to be referred to a Psychologist.
Kenegiloe Florence Nomgaga (Nomgaga) testified under oath as briefly stated below:
23. She was the Applicant’s sister. She was an energetic worker who attended work faithfully. After her brother was assaulted in October 2012 she noticed changes in him which included forgetfulness. Before the assault, he was not forgetful and at times, he would be the one who reminded her about things they had talked about and agreed on. After the assault the Applicant used to suffer from headaches. The Applicant knew nothing about having been hospitalized or having used a wheelchair after his discharge from hospital. She thought the Respondent should have been aware of the Applicant’s forgetfulness given the extent of his visible injuries. The Applicant told her that the person who assisted him while he was in hospitalized defrauded him. The Applicant also told her that even though the fraudster had undertaken to pay him back at the rate of R500-00 per month, he only paid him once and has never kept on paying. It was not fair for the Respondent to have charged the Applicant because his condition may have caused him to act as he did. The Respondent should have referred him to professionals for help.
24. After his discharge from hospital, the Applicant was speaking amazing things during the (24) twenty-four hours she had spent with him after discharge from hospital. She was not in a position to say how the Applicant conducted himself while he was on duty. She did not know that he ever forgot to report for duty but she was aware of an incident when he had forgotten his car with the keys inside. His assailants were able to enter his house and assault him because he had forgotten to lock his kitchen door. His forgetfulness started after the attack on him.
Malefetsane Nthebe (Nthebe) testified under oath as briefly stated below:
25. He knew the Applicant and once worked with him at Sefikeng College. Nhlapo spoke to him and told him that the Applicant was giving problems at the workplace and requested him to talk to the Applicant. He never talked to the Applicant as requested because Nhlapo had brought that up at the end of their talks and regarded it as not that important. The talk with Nhlapo was long after the assault on the Applicant. In his view the Applicant never recovered fully after the attack till today as compared to how he was before the attack. He asked Nhlapo about the changed condition of the Applicant and whether the Respondent would be referring him for help. He did not know what the response of Nhlapo was.
Given the change in the Applicant it would not be possible to talk to him as Nhlapo had suggested. The Applicant used to chase him away when he visited him after the assault. The Applicant would tell him about his disciplinary case a day prior to its scheduled hearing and this to him was an induction of the extent of his injury. The observations he had made regarding the changes in the Applicant were not based on any medical knowledge but purely on his knowledge of the Applicant prior to and after the attack on him. The changes in the Applicant started earlier than the attack on him.
THE CLOSING ARGUMENT OF THE RESPONDENT
26. The Respondent’s closing argument was as follows:
PROCEDURAL FAIRNESS
26.1 The Applicant was dismissed after a hearing he had failed to attend despite notice of hearing having been given to him. There was a pattern on the part of the Applicant to submit medical certificates whenever he was to attend a scheduled hearing. The Applicant had shown that he had no intention to attend his hearing.
26.2 The Applicant was not denied a right to appeal but he sought to exercise that right by making use of a Mr Thateng who had no right to act on his behalf. When the Applicant visited the Respondent’s Head Office in Pretoria on 25 April 2019, he had already referred a dispute to the ELRC and the first sitting of the scheduled arbitration hearing was postponed on 26 February 2019.
SUBSTANTIVE FAIRNESS
26.3 The Applicant’s reliance on medical incapacity was not supported by medical reports. One of the medical certificates on which the Applicant sought to rely stated that the head injury that he had suffered was not serious.
26.4 The many medical certificates which the Applicant had submitted to support his claim of medical incapacity were the same medical certificates which he had submitted in order not to attend the many hearings of his misconduct case.
26.5 It was important to state that the Applicant appear to have become aware of his medical incapacity only after his dismissal.
26.6 The Applicant had admitted that he had committed the misconduct set out in charges 1 and 4 by having asked for forgiveness in respect of charge 1 while he also admitted that he had given Mbatha marks though his script had not been marked.
26.7 With regard to charge 2 the Applicant submitted that he had submitted the June results late without producing any evidence to support that or why he had submitted them late.
26.8 The allegation of the Applicant that Mbatha had stolen the work of the other student was not supported by any evidence.
26.9 The charges against the Applicant were serious. The charge of having given a student another student’s work to copy would on its own justify dismissal. The students who had to repeat the course because of his misconduct were prejudiced in that their study period was lengthened through no fault of theirs. The Respondent incurred financial loss for having to let the students repeat at its cost.
In the light of the foregoing the dismissal of the Applicant should be found to have been procedurally and substantively fair.
THE CLOSING ARGUMENT OF THE APPLICANT
27. The closing argument of the Applicant was as follows:
27.1 The Respondent received his medical certificates and also approved sick leave for him. In the light hereof the Respondent failed to discharge its duty in terms of section 3 of Schedule 1 of the Employment of Educators Act.
27.2 Section 7 of the Promotion of Administration of Justice Act should be extended to this arbitration.
27.3 He seeks to enforce his constitutional rights which have been infringed by the Respondent for its failure to discharge the statutory duties set out in item/section (sic) 3 of Schedule 1 of the EEA, 1998.
27.4 The Respondent should have taken steps to investigate his incapacity because of his health condition.
27.5 The Respondent failed to follow a fair procedure regarding his ill-health. Even the campus manager Molatlhegi was aware way back in October 2017 that he had a problem in relation to poor work performance.
27.6 As a result of his psychological diagnoses (stress) he was not in a good frame of mind psychologically, hence he allocated wrong marks to students.
27.7 He has shown remorse as in page 1 of B by acknowledging his wrongdoing and has not persisted with denials.
27.8 Nhlapo’s evidence was not corroborated and its veracity is doubted.
27.9 He launched his appeal on the same day that he received his notice of termination and his appeal was granted by Chamane.
He sought to be reinstated retrospectively. The process of incapacity/ill-health be re-opened alternatively his early retirement should be considered. His appeal salary should be paid retrospectively.
28. The Respondent’s reply to the Applicant’s closing argument was as follows:
28.1 The Respondent had no obligation to investigate anything regarding the severity of the Applicants head injuries as there was nothing which suggested such. He was certified fit to resume duties after the three month’s sick leave.
28.2 The Respondent opposes the view that the law binds it to investigate alternatives to dismissal on the basis of long absence from work. The Applicant is using his injuries of 2012 as scapegoat to explain his conduct of 2016 and 2017.
28.3 The Applicant’s medical certificate which he submitted on 9 March 2018 was accepted and the hearing was postponed. The hearing on 13 March 2013 took place while the Applicant was on duty but had not attended his hearing. He was not on sick leave on 13 March 2013.
28.4 The Employment of Educators Act did not apply to the Applicant. He was appointed in terms of the Continuing Education and Training Act, 2006 which was previously the Further Education and Training College Act.
28.5 The Applicant was charged with misconduct and not with poor work performance.
28.6 The Applicant did not show any remorse because he continued with his misconduct. At the arbitration hearing, he was adamant that he had done nothing wrong.
ANALYSIS OF EVIDENCE AND ARGUMENT
29. In this dispute the Applicant was dismissed after a disciplinary hearing which he did not attend. It appeared from the documentary evidence which was submitted on behalf of the Respondent that the disciplinary hearing which was initially set down on 16 and 17 January 2018 could not proceed due to a psychologist’s note issued on 16 January 2018 – the first day on which the hearing was to have commenced. The hearing was rescheduled to take place on 9 March 2018 and 13 January 2018 but the Applicant did not attend. The hearing proceeded in the absence of the Applicant and those two days. All the notices of hearing which were sent to the Applicant notified him that if he did not attend the hearing and could not give reasonable grounds for failure to attend the hearing might be held in his absence. The onus was on the Applicant to provide reasonable grounds for failing to attend a scheduled hearing. Those grounds had to be submitted to the person who was empowered to consider their reasonableness or otherwise namely the chairperson of the disciplinary hearing. It was only the chairperson of the disciplinary hearing who could decide whether or not the grounds for non-attendance were reasonable and whether or not they justified postponement of the hearing. It seems to me that the person that must attend a disciplinary hearing cannot merely stay away from a hearing simply on the basis of having submitted what in his belief justified his non-attendance – he must await the decision of the chairperson of the hearing as to the reasonableness or otherwise of his reasons/grounds for non-attendance. If the person charged simply stayed away without knowing what the decision of the chairperson was, he would have decided on his own not to attend the hearing and such non-attendance would entitle the chairperson to proceed in his absence, in my view.
30. The Applicant conceded during cross examination that his hearing was initially set down for 9 November 2017 but could not go ahead because his representative told the hearing that he had been given instructions on 8 November 2017 – see the attendance register on page 12 of A. It was that hearing which was rescheduled to 16 and 17 January 2018 – the Applicant did not attend but had merely submitted a psychologist’s note through fax on 16 January 2018. The hearing of 16 and 17 January was postponed to 9 March 2018 and this hearing too the Applicant did not attend. The attendance register showed that the Applicant was present at the workplace on 13 March 2018 when the hearing which had commenced on 9 March 2018 proceeded in his absence. Nhlapo testified that he had personally informed the Applicant on 9 March 2018 that he should attend his disciplinary hearing but he did not.
31. What is clear from the evidence before me is that in respect of the date of 13 March 2018, the Applicant did not submit anything to the chairperson of the hearing with regard to his absence at the hearing. The Applicant simply did not attend. I find that the Applicant did not want to attend his disciplinary hearing on 13 March 2018. His deliberate decision not to attend on 13 March 2018 amounted to the Applicant waiving his right to be heard and the continuation of the disciplinary enquiry in his absence under those circumstances did not affect the validity of the sanction of dismissal that was arrived at – Old Mutual Life Assurance Co of SA Ltd v Gumbi (2007) 4 ALL SA 866 (SCA). The Applicant’s deliberate absence from his hearings on 13 March 2018 followed on three earlier postponements at his instance where he informed the hearing on the date of the hearing itself that he was unable to attend. Clearly the Respondent could not keep on postponing the hearing ad infinitum particularly with regard to the dates of 9 and 13 March 2013 given the proven history of the Applicant staying away from his hearing without the blessing of the chairperson of the hearing.
32. As I have already found that the Applicant waived his right to be heard at the disciplinary hearing and that his absence did not affect the validity of the dismissal arrived at in his absence. In the Labour Appeal Court matter of Fidelity Cash Management Service v CCMA & others (2008) 3 BLLR 197 (LAC) where he employer had sought to introduced a new charge after the dismissal of an employee, the Court held that the fairness of the dismissal must be based on the reasons relied on by the employer at the time of the dismissal. In other words in this dispute the fairness or otherwise of the dismissal of the Applicant must be determined on the basis of the reasons relied on by the employer at the time of the dismissal. By extension the testimony that would be relevant for such a determination would be the testimony that was adduced during the hearing that led the employer to a sanction of dismissal.
33. In the matter of Mokoena v Merafong City Local Municipality and Another 41 ILJ 2882 (LC) 2020 the employee of the municipality had approached the Labour Court seeking among others that the Court declare that the allegations for which she had been suspended related to poor work performance and not misconduct and that her suspension was inappropriate as a result. In dismissing the employee’s application the Court held that it was the prerogative of the employer to determine or classify the nature of the allegations against the employee’s to prescribe the process to be followed and not the employee’s. Furthermore, the Court held that it would be improper for the Court to determine or classify the nature of the allegations against the municipal employee’s and prescribe the process to be followed.
34. In this dispute the Applicant seeks of the ELRC to do exactly what the Court has held in the Mokoena judgment that it would be inappropriate to do – namely to tell the Respondent that it should not have brought misconduct charges against him but should have treated his conduct as incapacity due to injuries sustained! I find – on the authority of the Mokoena judgment that it was the Respondent’s prerogative to determine or classify the nature of the allegations against the Applicant as misconduct as well as to prescribe the process to be followed and that the Applicant had no say in that determination as he had belatedly attempted to do. The principle laid down in the Mokoena judgment puts paid to the Applicant’s misconstrued stance that he should not have been charged with misconduct but instead should have been treated as a case of incapacity due to ill-health/injury. It follows that I reject all the testimony of the Applicant and all his witnesses which sought to make the case that the Applicant should not have been charged with misconduct but should have been treated as a case of incapacity due to ill-health/injury. At any rate there was no acceptable medical testimony before me by appropriately qualified people that indeed the Applicant suffered from what he testified he did that such information was duly communicated to the Respondent. All what the Applicant sought to do was to give the many medical certificates he had submitted an unfounded interpretation that they indicated a health condition that warranted the process of incapacity due to ill-health.
35. The Applicant sought to advance the view that the outcome of his appeal was not implemented. At some stage he testified under oath that the outcome of the appeal was reinstatement. Later on he stated that the outcome of the appeal was that his salary should have been reinstated pending the outcome of his appeal! I did not hear the Applicant contesting the position of the Respondent that Chamane with whom the Applicant met in Pretoria was not the Appeal Authority of the Respondent and had no authority to write the letter that he had. Given that it was the Applicant’s position that Chamane had reinstated him/his salary as the appeal authority one would have expected him to have called Chamane as a witness on such a vital aspect of his case – he did not. It is noteworthy that on 10 January 2019 a letter as in page 35 of A was written to the Applicant by the Respondent to the effect that the “appeal” he had lodged was not regarded as having been proper in that it was launched on his behalf by a Mr Thateng who had allegedly no locus standi to do so. I was not made aware of any response by the Applicant to that letter of the Respondent. Any assertions by the Applicant that he had handled the appeal on his own and that Thateng only advised him on how to go about it are shown to be untrue by the letter which was written by Chamane on 27 April 2019 regarding his appeal and that letter was sent to the Respondent and copied to: qwaqwa@nupsaw.org.za, Gladys Mapheto. If indeed Thateng did not file the appeal purporting to do so as NUPSAW there would have been no need at all to use the union’s email address as has happened. Not even the name of the Applicant appears as one of the addressees who were copied which on itself puts the lie to the Applicant’s testimony that he had filed the appeal on his own. The union NUPSAW had written to the CCMA on 26 September 2018 to the effect that Thateng was no longer an office bearer of the Union and that he had no authority to represent its members – see page 93 of A. It must follow that at the time that Thateng handled the Applicant’s appeal he was not acting as an officer bearer of NUPSAW and that the “appeal” was not filed by an authorized person.
I find no unfairness on the part of the Respondent for not having considered the “appeal” in question.
36. The Applicant also sought to make a case that he was not notified about the hearing of 9 and 13 March 2018. Strangely and despite the Applicant’s protestation that he was not aware of the hearing of 9 March 2018 he had submitted (true to his established practice) a sick note from a Dr Mazibuko to the effect that he was not fit for work from 8 to 9 March 2018! Again true to practice the Applicant did not bother to attend the hearing to find out for himself what the chairperson of the hearing would say regarding the medical certificate – he had unilaterally decided to stay away from the hearing – a process over which the Chairperson had a right to proceed without the presence of the Applicant and which was what had happened upon the application by the Respondent – see paragraphs 4, 5, 6 and 8 of page 19 of A (the Chairman’s findings). The hearing of 9 March 2018 was adjourned and continued on 13 March 2018. The Applicant testified that he was on sick leave on that date but the workplace’s attendance register showed that he was on duty on that day – see page 17 of A where he had signed on and off duty on 13 March 2018. Nhlapo testified that he personally informed and reminded the Applicant that it was the day of his hearing on 13 March 2018. Despite this the Applicant did not attend. He would not have testified that he could not attend the hearing on 13 March 2018 because he was allegedly on sick leave, he was not aware that there would be a hearing on that date. At any rate Nhlapo had testified that he reminded him of his hearing on 13 March 2018 before he (Nhlapo) left for the hearing. This testimony of Nhlapo was not contested when he was cross-examined. The Applicant – who was represented by a Union official gave a difficult-to-understand explanation that he did not contest Nhlapo’s testimony because it was not yet his turn to speak! I reject this explanation. What is also interesting to observe is that the Applicant’s own witness Nthebe testified that the Applicant once told him on the eve of his disciplinary hearing that he had to attend a hearing. The probabilities tilt towards that hearing which he talked about to Nthebe having being the one of 13 March 2018. This is so because that was the hearing for which he had not submitted a sick note as per his habit and practice. It could not have been any other hearing but the one of 13 March 2018 because with the rest he had simply stayed away without letting the Chairperson of the hearing to assess whether or not to grant a postponement. I find that the Applicant probably knew about the hearing of 13 March 2018 besides having been specifically reminded of it by Nhlapo on 13 March 2018. He deliberately decided not to attend.
37. The Applicant conceded under cross examination that his students for L2 and L3 Animal Production had to repeat in 2018 because wrong ICASS marks had been submitted. No one else but the Applicant could have submitted the wrong ICASS marks in the subject for which he and no one else was responsible. His concession was despite him earlier having insisted that he had submitted correct marks. I find that the Respondent has made out charge 1 against the Applicant.
With regard to charge 2 the Applicant denied it completely and also denied that Nhlapo ever spoke to him in April 2017 and June 2017 to submit the mark sheets. The Applicant raised his denials for the first when he testified in-chief. He even stated that Nhlapo had been hunting him down like a hare in the workplace because of his students having had to register. The difficulty with the version of the Applicant is that it was not put to Nhlapo during his cross-examination so that he could deal with same. His explanation for his failure to do so was that it was not yet his time to state his case. This is no excuse at all given that he was represented by a seasoned union official. The reasonable inference from the Applicant’s failure to put his version to Nhlapo during his cross-examination is that he knew or suspected that it would be shot down by Nhlapo alternatively he had made up his version during his evidence-in-chief. I have found Nhlapo to be a truthful and candid witness who could not make up stories against anyone including the Applicant. On the other hand the Applicant was an inconsistent and unreliable witness who would not hesitate to pass anything off as the truth in order to defend himself. I find that the Respondent has made out charge 2 against the Applicant.
38. The Applicant denied having made himself guilty of Charge 3 by denying having encouraged or given Mbatha the POE of Mkhwane to copy from. His version was that Mbatha stole the POE from his staff office. This despite the uncontroverted testimony of Nhlapo that it was not possible to steal a POE that is kept in a lockable office. As to how Mbatha could have stolen the POE from his lockable office, the Applicant testified that Mbatha may have gone to his office while only his colleague was in it and told him (the colleague) that he (Mbatha) had been sent by the Applicant to fetch Mkhwane’s POE. This amazing testimony of the Applicant was not backed up by him calling the colleague to give credence to the assumption. That this version of Mbatha having stolen Mkhwane’s POE is a fabrication that came to life only at the time of arbitration is borne out by the fact that at no stage did the Applicant mention it to Molatlhegi or Nhlapo at the time of Mbatha being taken out of the examination room when it came to light that he had copied Mkhwane’s work. Mbatha had already reported to Molatlhegi at that stage that the Applicant had given him Mkhwane’s POE to copy from. That was the opportune time for the Applicant to tell all about Mbathas theft of the POE.
39. With regard to charge 4 the Applicant testified in-chief that the marks that he had written against Mbatha’s name in page 42 of A (Marks for ICASS Tasks) he had taken from Mbatha’s scripts. Under cross examination the Applicant stated that he did not know where he got the marks from i.e. the marks that he had allocated to Mbatha. He conceded further that he did not mark Mbatha’s test. He did not know where he got the marks of 21 which he had allocated to Mbatha in respect of his unmarked work that appeared in page 60 – 63 of A. He also conceded under cross examination that he could not justify the marks that he had allocated to Mbatha as in page 42 of A. I find that the Respondent has made out charge 4 against the Applicant.
40. In view of the above, I find that the Applicant is guilty of all the charges against him. Charge 4 goes to the heart of the trust relationship that ought to exist between Applicant and the Respondent and his conduct regarding the charge in question has broken the trust relationship beyond repair. The charge has shown up the Applicant as a dishonest employee who is not worthy of trust. Likewise, that the Applicant saw nothing wrong in him giving Mbatha the work of Mkhwane to copy in an attempt to cover up his failure to take care of the results of Mbatha and to record them accordingly, showed him up as a senior lecturer who had no interests of his students at heart. As if his conduct was not reprehensible enough, the Applicant concocted a version that Mbatha had stolen POE from his office – a clear sign of an employee with no remorse. His failure – which he sought to deny – to submit the results of his students let to his students missing out on the year in question and having to re-register the following year and at the Respondent’s expense. For his failure submit the POE’s in time in 2017 he sought to deflect his responsibility by cooking up an explanation that Nhlapo did not like him. In my view each and every charge against the Applicant warrants a sanction of dismissal. He has shown no remorse at all. After he had deliberately decided not to attend his disciplinary hearings by submitting sick notes which he did give the chairperson of the hearing to evaluate, he finally ignored the hearing of 13 March 2018 without any reason. He then thought out a porous defence of alleged incapacity which he could not establish. In the course of the arbitration he testified that his claimed medical condition has so improved that he should be reinstated. He held this position despite his own sister and Nthebe having testified in his presence that his health condition had become worse – this shows that inconsistency and incoherence are always the hallmarks of a fabricated testimony!
41. In view of all the above I find that the dismissal of the Applicant was procedurally and substantively fair.
AWARD
42. I find that the dismissal of Moeketsi Lebalang Mcpherson Mosolodi by the Department of Higher Education and Training (Maluti TVET College) was procedurally and substantively fair.
43. I dismiss the application herein.
ELRC PANELIST: M. MOLOI