ELRC644-20/21 EC
Text
ELRC92-21/22MP
Award Date:
12 November 2021
Case Number: ELRC92-21/22MP
Commissioner: Leanne Alexander
Date of Award: 12 November 2021
In the ARBITRATION between:
Manasoe Matshediso
(Applicant)
And
Department of Higher Education & Training (Nkangala TVET College)
(Respondent)
Applicant’s representative:
Applicant’s address:
Telephone:
Telefax:
Email:
Respondent’s representative:
Respondent’s address:
Telephone:
Telefax:
Email:
Details of hearing and representation
1. The arbitration took place at the offices of the Respondent’s premises at Corner Haig & Northey Street Emalahleni on 27 August 2021 (via virtual proceedings), 21 October 2021 and 22 October 2021 (in person).
2. Advocate Patrick Thobakgale, an attorney, represented the Applicant. The Applicant, Ms Manasoe Matshediso, was also present.
3. Mr Charles Mamphagoro, an Employee Relations Manager, appeared for the Respondent.
4. The proceedings were conducted in English.
5. The Applicant referred an unfair dismissal dispute in terms of Section 191 (5)(a)(i) of the Labour Relations Act, Act 66 of 1995 (“LRA”) on 30 April 2021 .
6. The matter was thereafter, set down for Arbitration on 27 August 2021. On the latter date the arbitration proceedings proceeded, however due to load shedding and connectivity challenges both parties agreed to continue the proceedings in person on 21 & 22 October 2021.
7. In terms of Section 138(7) of the “LRA” “within 14 days of the conclusion of the arbitration proceedings (a) the commissioner must issue an arbitration award with brief reasons”.
8. The matter followed an adversarial approach.
9. The hearing was digitally recorded, and manual notes were also taken.
Preliminary issue
10. ELRC Constitution: Clause 17.4, Part C, Dispute Resolution Procedures stipulates that if the dispute is about the fairness of a dismissal and a party had alleged that the reason for the dismissal relates to the employee’s conduct or incapacity, the parties are not entitled to be represented by attorneys in the proceedings unless –
(a) the commissioner and the other parties consent;
(b) the commissioner concludes that it is unreasonable to expect the party to deal with the dispute without legal representation, after considering –
(i) the nature of the questions of law raised by the dispute;
(ii) the complexity of the dispute;
(iii) the public interest; and
(iv) the comparative ability of the opposing parties or their representatives to deal with the dispute.
11. In this matter, both parties including myself as the Panelist, consented to the Applicant having legal representation during the proceedings. Therefore, the Applicant was permitted legal representation.
The issue’s to be decided
12. I am to determine if the Applicant’s dismissal was procedurally and substantively fair. If I find that the Applicant’s dismissal was unfair, I am further required to determine the appropriate relief.
13. The substantive issues in dispute, were the reason(s) for the dismissal.
14. The Applicant was charged for the “alleged theft of the Covid-19 essential PPE in the form of cloth masks, face shields, surgical masks, non-sterile gloves and hand sanitizers in that on 31 May 2020, Higher Health confirmed delivery of aforesaid Covid-19 items. On or about 4 July 2020 you then brought the aforesaid Covid-19 items with missing quantities to the College”. Furthermore “it is alleged that on or about 4 June 2020, you have deliberately ignored, or disobeyed an instruction issued by Mr MI Mabe, being the Deputy Principal: Corporate Services, to assist Ms C Lukhele in counting the PPE items and quantities after your delivery thereof”.
15. The Applicant was found guilty on both charge(s).
The background to the dispute
16. It was common cause that the Applicant was employed as a Student Support Manager since 1 March 2010 and was earning a monthly salary of R36, 177-87.
17. The Applicant worked a 5-day week, at an average of 8 hours per day.
18. The Applicant stated that she was dismissed on 24 November 2020.
19. The Respondent submitted documents that were marked “R” and paginated accordingly.
20. The Applicant submitted documents that were marked “A” and paginated accordingly.
21. The Applicant sought retrospective reinstatement.
Summary of evidence and argument
The testimony led by the witnesses’ is fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.
Respondent’ case
Ms Nqobile Maseko
22. The witness testified under oath that she was a Provincial Monitoring and Evaluation Coordinator (Higher Health).
23. The essence of the witness testimony inter alia was that Higher Health was an organization that implemented wellness programs at Technical Vocational Education and Training College’s (“TVET”).
24. She submitted several “emails” pertaining to the Personal Protective Equipment (“PPE”) items that were sent to the Respondent and were intended for students and volunteers.
25. She said that the PPE items were delivered on 4 June 2020, and the initial delivery address was that of the Respondent’s, however the driver could not get hold of the Applicant and he had subsequently delivered the PPE items to Tshwane University of Technology (“TUT”) in Witbank.
26. She said that she received a call from the Applicant who advised her that she would collect the PPE items, and all was in order as she had the distribution note.
27. She submitted documentary evidence of an “email” dated 4 June 2020, confirming the quantity of PPE items that had been delivered to the Respondent.
28. She submitted documentary evidence of an “email” dated 28 May 2020, that had been sent by her Line Manager, Ms Sudhindra Naidoo, where it was submitted that “…PPE material is scheduled for delivery and will arrive next week. Please contact me should you have any queries….”.
29. She submitted documentary evidence of a “delivery note” where it was submitted that the following items had been delivered:
Item: Quantity:
Pamphlets 8600
Posters 210
Cloth masks (singles) 1200
3 ply surgical masks (singles) 200
Face shields (singles) 100
Hand sanitizer (single 150 ml bottles) 200
Non-sterile gloves (boxes) 100
Body covers (singles) 0
N95 masks (singles) 0
Sterile gloves (boxes) 0
30. She said that as it had indicated on the “delivery note” it was supposed to be signed in acknowledgement that the items had duly been received.
31. She said that the discretion to distribute the PPE items formed part of the Student Support Division.
Under cross-examination (only concessions or significant versions put are recorded)
32. Maseko explained that the PPE items were sent to the Student Support Division that were meant for the person(s) that were conducting the screening.
33. Maseko explained that the Applicant was responsible for the distribution of the PPE items.
34. Maseko explained that the “delivery note” had been attached to the consignment.
Re-examination
35. In re-examination Maseko said that the process in terms of the distribution was that the material was normally delivered to the central college and were verified then taken to the Student Support Division for distribution to the person(s) who were meant to conduct the screening.
Mr Molifi Mabe
36. The witness testified under oath that he was the Deputy Chief Executive Officer (“CEO”) and Principal (he was also responsible for Corporate Services).
37. The essence of the witness testimony inter alia was that he received an email from the CEO, Mr Cain Maimela, where it indicated that Higher Health had donated PPE items (Covid related). Due to his role and being responsible for Corporate Services, he remained accountable for the donation. Furthermore, due to his position, whereby all Deputy Principal(s) were subsequently appointed as the Chairperson(s) for the respective Covid-19 Steering Committee(s), he was expected to ensure that the necessary planning and execution ensued with regards to the donation.
38. He said that he had followed up whether or not the donation had been delivered with the Higher Health Co-ordinator, Ms Zanele, who informed him that the driver had gotten lost, such that the items were delivered to TUT (Witbank) campus and the Applicant had advised her that she would be collecting the PPE items.
39. He said that the Applicant had collected the PPE items, but they were at her place of residence, and he had requested that the Driver collect the PPE items from the Applicant’s home, however the Applicant refused the offer and insisted that she would make use of her own private transport in order to return the PPE items to the Respondent’s premises.
40. He said that on the following day, he had enquired of the Applicant whether or not the PPE items had been returned to the Respondent’s premises, however the Applicant had not returned them at that stage.
41. He said that he had instructed the Driver/Supply Chain Clerk, Mr Reuben Nkadimeng, to collect the PPE items with the Applicant at her residence, however the Applicant had refused to go with the Driver/Supply Chain Clerk, Mr Reuben Nkadimeng. In doing so, the Applicant had refused to obey a reasonable and lawful instruction.
42. He said that the following day he was asked to report to reception as the Applicant had delivered the goods approximately 3 (three) boxes, that had already been opened and were resealed.
43. He said that Higher Health had sent the “delivery note” that had indicated the number of items that were delivered and as such it would have been fair for the Applicant to assist the Logistics Co-ordinator, Ms Catherine Lukhele, to count the PPE items. Furthermore, he had also contacted the Employee Relations Manager, Mr Charles Mamphagoro, to be present when counting the PPE items, however the Applicant had said that she had no time to waste as she had important things to attend to and could not count the PPE items.
44. He said that the Logistics Co-ordinator, Ms Catherine Lukhele, and the Employee Relations Manager, Mr Charles Mamphagoro, counted the PPE items and determined that a number of the PPE items were missing, and that the boxes had been opened.
45. He submitted documentary evidence of an “email” dated 31 May 2020, where it was submitted that “please refer to the below request and plan accordingly”.
46. He submitted documentary evidence of an “appointment – Nkangala TVET College Covid-19 Steering Committee Chairperson” that was signed on 21 July 2021, where it was submitted that “your role of a chairperson will commence on 14 May 2020”.
47. He said that he had requested the PPE items from the Applicant as it had been necessitated by the CEO, Mr Cain Maimela, and the Higher Health’s mandate were directed towards students and he wanted to account for the goods in terms of his accountability and responsibility. Furthermore, it was common cause that the Applicant would allocate the PPE items.
48. He said that the Applicant had not informed him whether or not the PPE items had been distributed and that the Applicant had refused the transport that was offered to her in order to collect the PPE items from her place of residence.
49. He said that he had instructed the Applicant on 3 (three) occasions, namely to check that the PPE items had been delivered to the incorrect place, secondly the Applicant refused the transport that was provided and thirdly, the Applicant had refused to count the PPE items.
50. He said that he issued a reasonable and lawful instruction(s) in the capacity of the Chairperson of the Covid-19 Steering Committee, Deputy Principal/CEO and Deputy Corporate Services.
51. He said that the Applicant was capable of complying with the instruction(s) within her capacity as a Manager.
52. He said that the Applicant’s appeared to have an attitude, was not willing to work with him and furthermore had undermined him.
Under cross-examination (only concessions or significant versions put are recorded)
53. Mabe explained that the Applicant had not reported directly to him, however the Applicant had reported directly to Mr Madushane, Deputy Principal (Academics) and the matter had been raised with the Applicant’s direct report, Mr Madushane, who had formed part of the Executive meetings that were held.
54. It was put to the witness that the reason why he had not been copied in the email from Higher Health, was due to the fact that the PPE items were a donation that was meant for the Student Support office. The witness contested this statement and said that the email was not selective, as a trail had been sent to him in order for him to plan accordingly.
55. It was put to the witness that the Applicant had previously received other PPE materials and there was never an issue. The witness contested this statement and said that he had not been involved with the other donations that had been received.
56. It was put to the witness that his appointment as the Chairperson of the Steering Committee was signed after the incident had taken place, as he was only appointed on 21 July 2020. The witness contested this statement.
57. It was put to the witness that the Applicant distributed the material, and he was unaware of the event. The witness contested this statement and said that the Applicant confirmed that she had collected the PPE items and she had not said that please bear in mind that she had already distributed some of the PPE items, furthermore nothing had prevented her from disclosing such.
58. It was put to the witness that when he first contacted the Applicant, he accused her of theft. The witness contested this statement and said that was not the truth as he always maintained his professionalism.
59. It was put to the witness that the Applicant had not been interviewed during the internal investigation as the Respondent had already made up their mind with regards to the Applicant’s alleged conduct. The witness contested this statement and said that the Applicant should have had the right to be heard and he was not aware of the reason(s) as to why she was not interviewed, as one could not make a mockery of Labour Relations.
60. It was put to the witness that he had testified that the Applicant queried as to why he was querying the whereabouts of the PPE items, when in fact the items were meant for Student Support Division. The witness responded and said that there should not be any misunderstanding as the PPE items were meant for the college not for an individual and any donation was donated in the name of the college and not for a particular unit.
61. It was put to the witness that the Applicant had distributed the PPE items. The witness contested this statement and submitted that at no point had the Applicant raised these issues nor advised of such.
62. It was put to the witness that he had targeted particular PPE items i.e., masks and face shields. The witness contested this statement and said that the flyers were not missing based on boxes that had not been tampered with, which suggested that they were not missing, and he requested the Applicant to count the PPE items, however she refused.
63. It was put to the witness that the Applicant would not have been able to assist with the counting of the PPE items as she had already been accused. The witness contested this statement and said that whilst Higher Health made donations, the items could not go directly to the students, as the Applicant reported to the Central Office.
Ms Catherine Lukhele
64. The witness testified under oath that she was an Administration Officer (Logistics).
65. The essence of the witness testimony inter alia was that on 4 June 2020, she was working at the reception and the Deputy Principal, Mr Molifi Mabe, had provided the trip authority to the Supply Chain Officer, Mr Reuben Nkadimeng to complete and return, however the trip had not taken place.
66. She said that the PPE items had been delivered to the office by the Applicant without a delivery note.
67. She said that she had advised the Deputy Principal, Mr Molifi Mabe, when the PPE items had been delivered and he requested the Applicant to assist with the counting of the PPE items and requested that the Employee Relations Manager, Mr Charles Maphagoro, to also assist with the counting of the PPE items.
68. She said that the Applicant had refused to count as the PPE items were meant for her office and not for the Deputy Principal, Mr Molifi Mabe.
69. She said that the Deputy Principal, Mr Molifi Mabe, had the authority to issue a reasonable and lawful instruction to the Applicant.
70. She said that the process that the Respondent followed when any items were delivered was a delivery note was submitted by the supplier, the items were checked and counted, the delivery note would be signed and a copy would be kept, the items would be placed in the storeroom followed by the inventory system being updated.
71. She said that if the Respondent distributed PPE items, then the person(s) would have to sign for those particular item(s).
72. She said that the Applicant should have counted the PPE items as per the procedure and produced the delivery note.
73. She said that there were several discrepancies, as per the following:
Item: Quantity:
Cloth masks (singles) 933
Face shields (singles) 98
Hand sanitizer (single 150 ml bottles) 185
Non-sterile gloves (boxes) 97
Disposable masks 50 (box)
74. She submitted documentary evidence of the “delivery note”.
75. She said that after the PPE items had been counted there were discrepancies with regards to the following items cloth masks, surgical masks, face shields, hand sanitizers and non-surgical masks. Such that 267 cloth masks, 3 boxes of surgical masks and 22 hand sanitizers were missing. Furthermore, that the flyers had not been counted, as they had not been tampered with.
Under cross-examination (only concessions or significant versions put are recorded)
76. Lukhele explained that the Deputy Principal, Mr Molifi Mabe, had the authority to provide instructions to sub-ordinates.
77. Lukhele explained that any items that were received including items from Higher Health would have to follow the same procedure.
78. Lukhele explained that the Applicant had never disclosed that she had already distributed some of the PPE items.
79. It was put to the witness that by not counting the flyers and the posters she had not achieved the purpose of counting in the first place, as such she was “selectively counting”. The witness contested this statement and said that the flyers were intact, however the other boxes had been torn.
Mr Reuben Nkadimeng
80. The witness testified under oath that he was a Supply Chain Officer.
81. The essence of the witness testimony inter alia was that on 4 June 2020, he was requested by the Deputy Principal, Mr Molifi Mabe, to take the Respondent’s vehicle in order to collect PPE items from the Applicant’s home.
82. He said that he had requested the trip authority and when he wanted to complete the Applicant’s details, the Applicant said that she would not require the transport as she would be using her own private transport to collect the PPE items.
83. He said that the Deputy Principal, Mr Molifi Mabe, had the authority to issue a reasonable and lawful instruction to the Applicant.
84. He said by offering the Applicant transport, it would have saved her a lot of unnecessary challenges.
Under cross-examination (only concessions or significant versions put are recorded)
85. It was put to the witness that the Applicant had not refused to carry out an instruction. The witness contested this statement and said that the vehicle was readily available, yet the Applicant had refused to comply with a reasonable and lawful instruction.
86. It was put to the witness that he was a rehearsed witness, and his intention was to aggravate the Applicant’s charges. The witness contested this statement and said that he was not a rehearsed witness, and he never fabricated the instruction that was given to the Applicant.
Applicant’s case
Ms Matshediso Manasoe
87. The Applicant testified under oath that she was a Student Support Manager.
88. The essence of the Applicant’s testimony inter alia was that she had worked for the Respondent for a period of 10 (ten) years. During the period of the hard lockdown, she was based at home and had been contacted by Higher Health, Ms Maseko, advising her that Covid related material would be issued to the Respondent. She said prior to the initial lockdown, she had been on leave and that she still had a few days of leave that were due to her.
89. She said that she was meant to return to work on 4 June 2020, but she had challenges with her permit for travelling purposes and she only arrived in Witbank on 1 June 2020.
90. She said that she was contacted by TUT, Mr Mahlangu, on 2 June 2020, who advised her that the material was at their premises, and she had utilized her private vehicle in order to collect the PPE items and confirmed that the PPE items would be kept safely.
91. She said that on 3 June 2020, she was contacted by the Deputy Principal ,Mr Molifi Mabe, and she was skeptical as she had not reported to him and informed him that she had the PPE items in her possession and would bring the PPE items back to the office on 4 June 2020.
92. She said that her fellow colleagues and the Co-ordinator, Ms Zanele, from Higher Health, were all attending training on 3 June 2020, however she had not been contacted in order to attend the training.
93. She said that on 3 June 2020, she arrived at the office and found the Co-ordinator, Ms Zanele, Student Support, Mr Makushe, Mr Bafedi (from another campus) and the Intern, Ms Nkadimeng. She said that Higher Health, had delivered a total of 13 (thirteen) boxes and all 4 (four) of her colleagues went with her to her place of residence in order to view the PPE items, as they were meant for their unit.
94. She said that the delivery of the boxes was not accompanied by a delivery note. Her colleagues accompanied her when the boxes were delivered to the Central Office.
95. She said that the peer volunteers/educators were meant to receive the PPE items.
96. She said that she was not aware that the Deputy Principal, Mr Molifi Mabe, had been appointed as the head of the Covid-19 Steering Committee.
97. She said that the Deputy Principal, Mr Molifi Mabe, had enquired with her on several occasions if the PPE items had arrived back at the Central Office and it felt like he was provoking her and had also accused her of theft.
98. She said that in front of her sub-ordinates, the Deputy Principal, Mr Molifi Mabe, had instructed her to count the PPE items and she felt humiliated. Furthermore, she said “I can’t count” as the time had not suited her, then she proceeded to walk away.
99. She said that on 5 June 2020, the Employee Relations Manager, Mr Charles Mamphogoro, had informed her of the alleged allegations and she was shocked, but that was not the first-time that allegations had been levelled against her, such that she had not responded to the email.
100. She said that on 12 June 2020, the Respondent had taken the material and the Coordinator, Ms Zanele and Mr Bafedi, who was from another campus had distributed the PPE items to the campuses.
101. She said that the material had been distributed with all of the volunteers and officials present to all of the campuses, including Central Campus, Witbank Campus, Mpondonkomo Campus, Middleburg Campus and Waterfall Campus.
102. She said that she had not been questioned as to where the missing PPE items had gone too.
103. She said that she had not uttered the words “…I will go at my own time”, “..I don’t have time for that…” to the Deputy Principal, Mr Molifi Mabe. She said that she had not stolen the PPE items but had distributed them.
104. She said that her direct report was the Deputy Principal (Academic) Mr Madashane and she had a good working relationship with him.
Under cross-examination (only concessions or significant versions put are recorded)
105. The Applicant explained that she collected the PPE items in her own capacity then stored them at her home, and she had lived within walking distance to the Central Office.
106. The Applicant explained that she could not sign the delivery note as she had not received one.
107. It was put to the Applicant that the Deputy Principal, Mr Molifi Mabe, was executing an instruction from the CEO, Mr Cain Maimela. The Applicant conceded to this statement.
108. It was put to the Applicant that she testified that she would bring back the PPE items on 4 June 2020, when she reported for duty. The Applicant contested this statement.
109. The Applicant explained that she had not complied with the instruction from the Deputy Principal, Mr Molifi Mabe, with the offer of the transport to collect the PPE items due to several reason(s).
110. The Applicant explained that she had not complied with the instruction from the Deputy Principal, Mr Molifi Mabe, with regards to the counting of the PPE items as she had already been accused and was in an emotional state.
111. It was put to the Applicant that she was upset and could have uttered any words at that particular point in time furthermore, the Deputy Principal, Mr Molifi Mabe, had no reason not to tell the truth. The Applicant contested this statement and said that the Deputy Principal, Mr Molifi Mabe, was not telling the truth.
112. The Applicant explained that she knew she would be accountable for the PPE items, however she had not received a delivery note and as such did not have any record when the items had been distributed from her home, due to it being critical and urgent.
113. It was put to the Applicant that it was not safe to have stored the PPE items in her back room during a pandemic. The Applicant contested this statement and said that it was safe as the gate was locked.
114. It was put to the Applicant as a Manager she had distributed items on 3 June 2020 and 12 June 2020, yet she did not have any records to substantiate her claim. The Applicant contested this statement and said that the records from 12 June 2020 were available.
115. The Applicant explained that she was not aware of the exact number of PPE items that had been distributed.
116. It was put to the Applicant that her versions were contradictory as she initially said during the disciplinary hearing that she was only aware that the Deputy Principal, Mr Molifi Mabe, was the Chairman of the Covid-19 Steering Committee on 4 June 2020, now her version was changing that she only became aware at the disciplinary hearing. The Applicant contested this statement and said that the minutes from the disciplinary hearing was not a true reflection of what had occurred and the Deputy Principal, Mr Molifi Mabe, had never sat her down in order to explain it to her.
117. It was put to the Applicant that the Deputy Principal, Mr Molifi Mabe, had been duly appointed as the Chairperson of the Steering Committee on 14 May 2020, however she had not been included in the meetings that were held. The Applicant conceded to this statement and said that she was not aware as she had been based at home during that period.
118. It was put to the Applicant that no Student Support Officials had formed part of the Steering Committee. The Applicant contested this statement and said that they had formed part, but perhaps they had formed part of the sub-committee(s).
119. It was put to the Applicant that her direct report, Mr Madashane, represented the Student Support Division at the Steering Committee. The Applicant contested this statement and said that Mr Madashane, would never support Student Services in that capacity, and she was being sabotaged.
120. The Applicant explained that she could not recall the number of hand sanitizers that she had distributed on 3 June 2020 and no criteria was used for the distribution.
121. It was put to the Applicant that she had indicated that she had challenges with transport, yet she had refused the transport that the Respondent had provided for her. The Applicant contested this statement and said that she had transport available.
122. It was put to the Applicant that if she had complied with the instructions that were given to her by the Deputy Principal, Mr Molifi Mabe, the matter could have been avoided and that she was the architect of her own misfortunes. The Applicant contested this statement and said that it could have been avoided if he had approached her in a professional manner.
Re-examination
123. In re-examination the Applicant said that she had delivered the PPE items on 4 June 2020, and the instruction to collect the PPE items had been given to the Supply Chain Officer, Mr Reuben Nkadimeng.
Ms Zanele Mandlaze
124. The witness testified under oath that she was a Health and Wellness Coordinator (Higher Health).
125. The essence of the witness testimony inter alia was that on 3 June 2020, the Applicant had contacted her whilst she was at the Witbank campus conducting training.
126. She said that the Applicant had arrived at Witbank campus and informed Mr Bafedi (who was from another campus), Student Support, Ms Makushe, the Intern, Ms Nkadimeng and herself about the arrival of the PPE items and they were requested to accompany her to her home where the PPE items had been kept.
127. She said that when she arrived at the Applicant’s home, she saw 13 (thirteen) sealed boxes. She said they opened the big box in order to establish what the contents were and some of the PPE items had been distributed to Higher Health volunteers at the Witbank campus.
128. She submitted documentary evidence of the “disciplinary hearing report” where it was submitted that “…they took some PPE for themselves…”, she said that meant that the PPE items had been distributed to the volunteers.
Under cross-examination (only concessions or significant versions put are recorded)
129. Mandlaze explained that she could not remember the exact number of PPE items that she had taken for her own personal use, as they were meant for the volunteers.
130. It was put to the witness that her versions were contradictory as she had first indicated that she had not taken any PPE items for her personal use now her version had changed. The witness conceded that she had taken some PPE items for her own personal use.
131. It was put to the witness that it was the duty of the Applicant to keep a record of any transactions.
132. It was put to the witness by virtue of the Deputy Principal, Mr Molifi Mabe, position he could issue a lawful and reasonable instruction to the Applicant.
133. It was put to the witness that the following items were unaccounted for 267 (two hundred and sixty-seven) masks, 153 (one hundred and fifty-three) surgical masks, 22 (twenty-two) hand sanitizers and 3 (three) boxes of sterile gloves. The witness explained that she could not recall how many that she had distributed.
134. It was put to the witness that the “email” she had forwarded on 11 March 2021, had been tampered with as she had copied and pasted the contents of the mail.
135. Mandlaze explained that she had been invited to attend the Covid-19 Steering Committee meetings, which commenced on or about early June 2020 and that the Deputy Principal, Mr Molifi Mabe, was the Chairperson.
136. It was put to the witness that the Covid-19 Steering Committee had been in existence since June 2020. The witness conceded to this statement.
137. Mandlaze explained that she had only received some PPE items from the Respondent for her personal use and the Respondent had given employees money to purchase their own PPE.
Re-examination
138. In re-examination Mandlaze said that she had to copy and paste the email she had sent the Applicant due to the email appearing blank, if she had just simply forwarded it.
Analysis of evidence and argument
139. There was a bundle of documents submitted by the Respondent listed as “R” and marked accordingly.
140. There was a bundle of documents submitted by the Applicant listed as “A” and marked accordingly.
141. In terms of Section 185 of the “LRA” every employee has the right not to be unfairly dismissed. Section 192(1) of the “LRA” as amended provides that “in any proceedings concerning dismissal, the employee (the Applicant) must establish the existence of the dismissal”. Concerning the matter before me the dismissal was not in dispute, therefore the onus shifted to the Respondent to prove that the dismissal was procedurally and substantively fair.
142. I am therefore guided by the guidelines in cases of dismissal for misconduct:
143. In considering the substantive fairness of the dismissal, I am required to consider Item 7 of the Code of Good Practice: Dismissal, (the Code), as set out in Schedule 8 of the “LRA”.
144. Any person who is determining whether a dismissal for misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
145. In the case of Rubric Consulting (Pty) Ltd v Dixon & others (JR 1972/14) (LC) the court held when “determining the substantive fairness of a dismissal each case must be determined on its own merits”.
146. In the case of Industrial Development Corporation of South Africa Limited v Roscher, Myhill and the CCMA (JR2946/10) [2017] ZALCJHB 156, the Court held in “cases of misconduct, each case must be decided on its own merits”. Furthermore, “…the discipline of senior staff is not dependent on the discipline of their managers, each employee has a duty to discharge his/her scope of work as expected and contracted for”.
147. In the case of Pienaar v Manzana N.O and Others (JR2907/12) [2016] ZALCJHB 169 the Court held “the dismissal of the Employee for misconduct relating to carelessness or failure to exercise due care or attention as a senior manager…” to be “substantively fair”.
148. In the case of Cecil Nurse (Pty) Ltd v Busakwe NO & others [2015] 28 (LC) the Court held that “when assessing the conduct of an employee that is of dishonest nature, the long-established rule applied in the Labour Court and Labour Appeal Court, i.e. that the presence of dishonesty tilts the scales to an extent that even the strongest factors, such as long service and a clean record, the sanction of dismissal in cases of dishonesty, must prevail…”.
149. In the case of Noosi v Exxaro Malta Coal (JA 62/2015) (2017) ZALAC 3 the court held that “the test for insubordination is not whether instructions were reasonable and lawful. Should it be shown that the instruction was unlawful, the inquiry would end there. However, if it is found that the instruction was lawful, the expectation is that the employee to whom such an instruction was issued should have complied”.
150. The Applicant submitted that she was unfairly dismissed for substantive reason(s).
151. The Respondent’s representative led overwhelming evidence in that the Applicant contravened a rule. The Respondent’s witness, Ms Nqobile Maseko, submitted documentary evidence of “emails” pertaining to the PPE items that were sent to the Respondent and were intended for students and volunteers. The Respondent’s witness, Ms Nqobile Maseko, submitted oral testimony that she received a call from the Applicant who advised her that she would collect the PPE items, and all was in order and she had the distribution note. The Respondent’s witness, Ms Nqobile Maseko, submitted documentary evidence of a “delivery note” where it indicated the quantities of the number of items that were delivered “pamphlets 8600, posters 210, cloth masks (singles) 1200, 3 ply surgical masks (singles) 200, face shields (singles) 100, hand sanitizers (single 150 ml) bottles 200, non-sterile gloves (boxes) 100”. Furthermore, she submitted oral testimony that the material was normally delivered to the central college and were verified then taken to the Student Support Division for distribution to the person(s) who were meant to be conducting the screening.
152. The Respondent’s other witness, Mr Molifi Mabe, submitted documentary evidence of an “email” that was sent by the CEO, Mr Cain Maimela, where it indicated that Higher Health had donated PPE items and he was meant to “plan accordingly”. The Respondent’s witness, Mr Molifi Mabe, submitted documentary evidence of a “delivery note” that had indicated the number of items that were delivered and as such, it would have been fair for the Applicant to assist the Logistics Coordinator, Ms Catherine Lukhele, to count the PPE items. The Respondent’s witness, Mr Molifi Mabe, submitted oral testimony that the Applicant had refused to follow a reasonable and lawful instruction that he had requested and as such, she had refused to count the PPE items. The Respondent’s witness, Mr Molifi Mabe, submitted documentary evidence of “appointment – Nkangala TVET College Covid-19 Steering Committee Chairperson” that was signed on 21 July 2020, where it was submitted that “your role of a chairperson will commence on 14 May 2020”. The Respondent’s witness, Mr Molifi Mabe, submitted oral testimony that Applicant had not informed him whether or not the PPE items had been distributed and that the Applicant had refused the transport that was offered to her order to collect the PPE items.
153. The Respondent’s other witness, Ms Catherine Lukhele, submitted oral testimony that the discrepancies that had been identified when counting the PPE items, being “cloth masks (singles) 933, face shields (singles) 98, hand sanitizers (single 150 ml bottles) 185, non-sterile gloves 97 and disposable masks 50 (box)”. Such that “267 cloth masks, 3 boxes of surgical masks and 22 hand sanitizers were missing”.
154. The Respondent’s other witness, Mr Reuben Nkadimeng, submitted oral testimony that he requested the trip authority based on the instruction that he received and when he wanted to complete the Applicant’s details, the Applicant said that she would not require the transport, as she would be using her own private transport.
155. The Respondent’s witness(s) who testified, Ms Nqobile Maseko, Mr Molifi Mabe, Ms Catherine Lukhele and Mr Reuben Nkadimeng, were good and credible witness(s), their versions were relevant, reliable and consistent. Oral and documentary evidence was submitted with regards to the rule or standard that was in place, it was evident that it had been broken.
156. The Applicant was not a credible witness, her versions were relevant although at times appeared to be evasive, contradictory, and improbable.
157. The Respondent’s representative demonstrated and discharged his onus to prove that substantive fairness was adhered to.
158. In my view, on a balance of probabilities the Applicant clearly contravened a rule(s) in the workplace that was known to herself and the rule was consistently applied.
159. Section 193(2) of the Act provides that “The Labour Court or the arbitrator must require the employer to re-instate or re-employ the employee, unless –
a. the employee does not wish to be reinstated or re-employed;
b. the circumstances surrounding the dismissal are such that a continued relationship would be intolerable;
c. it is not reasonably practicable for the employer to re-instate or re-employ the employee; or
d. the dismissal is unfair only because the employer did not follow a fair procedure.”
160. The Applicant indicated that she sought retrospective reinstatement.
161. The Applicant on her own version, submitted that she collected the boxes and stored them at her place of residence. Furthermore, the Applicant during cross-examination conceded “that she knew she would be accountable for the PPE items, however she had not received a delivery note and as such did not have any record when the items had been distributed from her home, due to it being critical and urgent”. The Applicant during her evidence in chief, submitted that “on 3 June 2020, she arrived at the office and found the Coordinator, Ms Zanele, Student Support, Mr Makushe, Mr Bafedi (from another campus) and the Intern, Ms Nkadimeng. She said that Higher Health, had delivered a total of 13 (thirteen) boxes and all 4 (four) of her colleagues went with her to her place of residence in order to view the PPE items, as they were meant for their unit”. The Applicant during cross-examination conceded that that she had distributed items on 3 June 2020 and 12 June 2020, but she only “had proof from 12 June 2020”. The Applicant during cross-examination explained that her refusal to carry out a reasonable and lawful instruction “could have been avoided if he had approached her in a professional manner”.
162. On a balance of probabilities, in relation to the Applicant’s refusal to obey a reasonable and lawful instruction. The Respondent’s witness, Mr Molifi Mabe, testified that by virtue of his position in the capacity of the Chairperson of the Covid-19 Steering Committee, Deputy Principal/CEO and Deputy Corporate Services, he was duly authorized to provide a reasonable and lawful instruction to the Applicant. This was further corroborated by the Respondent’s other witness, Ms Catherine Lukhele. I am perplexed that the Applicant deemed it acceptable not to follow a reasonable and lawful instruction by being requested to count the PPE items. The Applicant fulfilled a leadership role and was furthermore custodian of Student Support Services. The Applicant received the PPE items and after storing them at her home, returned them to the Respondent’s Central Office. The mere fact that she was the responsible and accountable person for the PPE items and the distribution thereof, it was not unreasonable and unlawful in these circumstances to count the PPE items by virtue of the Applicant’s delivery of the PPE items to ensure the accountability and accuracy thereof. See the case of Noosi v Exxaro Malta Coal (JA 62/2015) (2017) ZALAC 3.
163. In my view, on a balance of probabilities, on the Applicant’s own version she submitted that her direct report was Mr Madushane, Deputy Director (Academics). Whilst I understand that the Deputy Principal, Mr Molifi Mabe, was clearly not the Applicant’s direct report. By virtue of Mr Molifi Mabe’s, position of authority and furthermore his appointment as the Chairperson of the Covid-19 Steering Committee, it necessitated the need for him to remain accountable and to ensure that his primary responsibilities in relation to the Covid-19 Steering Committee mandate on campus as per the instruction that was issued to him by the CEO, Mr Cain Maimale, to “plan accordingly”. In my view, considering that the PPE items were initially collected from TUT campus by the Applicant, the Deputy Principal, Mr Molifi Mabe, was not unreasonable and unlawful in instructing the Applicant to count the PPE items to ensure accountability and the compliance thereof, in line with the Covid-19 Steering Committee’s mandate.
164. On a balance of probabilities, in relation to the Applicant collecting the PPE items and then returning to them to the Respondent with missing quantities. The Applicant in her evidence in chief submitted that the PPE items were meant for “peer volunteers/educators”. The Applicant conceded that PPE items were distributed on “3 June 2020 and 12 June 2020” and “she was not aware of the exact number of PPE items that had been distributed”. The Applicant submitted that when she collected the PPE items from TUT Campus, she had not received a delivery note.
165. In my view, on a balance of probabilities, the Applicant could not produce any documentary proof that the “peer volunteers/educators” had indeed received the PPE items that were intended for their use. The Applicant’s witness, Ms Zanele Mandlaze, conceded during cross-examination that she “could not remember the exact number of PPE items that she had taken for her own personal use, as they were meant for the volunteers”. Furthermore, that “she could not recall how many she had distributed”. The Applicant could not produce any proof to substantiate her version that the PPE items were distributed on 3 June 2020 and 12 June 2020, the only evidence was her witness, Ms Zanele Mandlaze, who was a poor witness and not a credible witness, who could also not substantiate the whereabouts of the PPE items. The Respondent’s witness, Ms Catherine Lukhele, submitted “the process that should have been followed when items were delivered, was a delivery note was submitted by the supplier, the items were checked and counted, the delivery note would be signed and a copy would be kept, the items would be placed in the storeroom, followed by the inventory system being updated”. This was further corroborated by the Respondent’s other witness, Mr Molifi Mabe, who submitted that when “Higher Health made donations, the items could not go directly to the students”.
166. In my view, on a balance of probabilities, the Applicant as a reasonable and responsible person ought to have investigated if the “delivery note” had not been attached to the delivery, by doing so she could have tallied and accounted for each item that had been delivered. On the Applicant’s own version, the PPE items had been distributed to peer volunteers/educators on 3 June 2020 and 12 June 2020, yet as a Manager in a Leadership role she kept no records where educators/volunteers could have signed in acknowledgement of the PPE items as such, they was no rationale nor criteria that was used in relation to how the distribution occurred, in addition to no control measures that had been put in place. South Africa was still in adjusted level 3 lock down during June 2020, and on the Applicant’s version she submitted that the students returned during early July 2020, therefore it seems peculiar that the Applicant was “urgently” distributing PPE items, when the students had not even arrived on campus at that particular stage. See the case of Pienaar v Manzana N.O and Others (JR2907/12) [2016] ZALCJHB 169 and Industrial Development Corporation of South Africa Limited v. Roscher, Myhill and the CCMA (JR2946/10) [2017] ZALCJHB 156.
167. In the case of Fidelity Cash Management Services v CCMA and others [2008] 3 BLLR 197 (LAC) the court held that “fairness was determined mostly on the basis of the reason for the dismissal which the employer had given at the time of the dismissal. Then “…the Court or tribunal must determine the fairness based on the true reason for the dismissal”. With reference to this case, I must place on record in this case whilst I have considered all of the evidence that was presented, I have only considered the charge(s) that were levelled against the Applicant as per the charge sheet, in my determination and not the other allegation(s), pertaining to the Applicant refusal to accept the transport offered by the Respondent, in order to collect the PPE items.
168. In my view, the Applicant had been employed for a period of almost 10 years, which is indeed an extensive period of time. In addition, the Applicant fulfilled a senior leadership role, as a Student Support Manager. The very essence of any employment relationship is based on trust, honesty and respect. The Applicant as a reasonable and responsible person ought to have known better. Furthermore, it was expectant and prudent of the Applicant to act ethically, with integrity and honesty to ensure that her conduct complied to the Respondent’s policies and procedures and to furthermore ensure that she remained accountable for her department, by virtue of her position. See the case of Cecil Nurse (Pty) Ltd v Busakwe NO & others [2015] 28 (LC).
169. The Applicant was afforded an opportunity to ventilate the dispute during the proceedings at the ELRC. Thus, the Applicant was not prejudiced
170. I accordingly make the following Award:
Award
171. The dismissal of the Applicant, Ms Manasoe Matshediso, by the Respondent, the Department of Higher Education and Training (Nkangala TVET College) was substantively fair.
172. The application is dismissed.
173. The ELRC is hereby ordered to close the file.
Thus, signed and dated on the 12 November 2021.
Leanne Alexander
ELRC Panelist
Commissioner: Leanne Alexander
Date of Award: 12 November 2021
In the ARBITRATION between:
Manasoe Matshediso
(Applicant)
And
Department of Higher Education & Training (Nkangala TVET College)
(Respondent)
Applicant’s representative:
Applicant’s address:
Telephone:
Telefax:
Email:
Respondent’s representative:
Respondent’s address:
Telephone:
Telefax:
Email:
Details of hearing and representation
1. The arbitration took place at the offices of the Respondent’s premises at Corner Haig & Northey Street Emalahleni on 27 August 2021 (via virtual proceedings), 21 October 2021 and 22 October 2021 (in person).
2. Advocate Patrick Thobakgale, an attorney, represented the Applicant. The Applicant, Ms Manasoe Matshediso, was also present.
3. Mr Charles Mamphagoro, an Employee Relations Manager, appeared for the Respondent.
4. The proceedings were conducted in English.
5. The Applicant referred an unfair dismissal dispute in terms of Section 191 (5)(a)(i) of the Labour Relations Act, Act 66 of 1995 (“LRA”) on 30 April 2021 .
6. The matter was thereafter, set down for Arbitration on 27 August 2021. On the latter date the arbitration proceedings proceeded, however due to load shedding and connectivity challenges both parties agreed to continue the proceedings in person on 21 & 22 October 2021.
7. In terms of Section 138(7) of the “LRA” “within 14 days of the conclusion of the arbitration proceedings (a) the commissioner must issue an arbitration award with brief reasons”.
8. The matter followed an adversarial approach.
9. The hearing was digitally recorded, and manual notes were also taken.
Preliminary issue
10. ELRC Constitution: Clause 17.4, Part C, Dispute Resolution Procedures stipulates that if the dispute is about the fairness of a dismissal and a party had alleged that the reason for the dismissal relates to the employee’s conduct or incapacity, the parties are not entitled to be represented by attorneys in the proceedings unless –
(a) the commissioner and the other parties consent;
(b) the commissioner concludes that it is unreasonable to expect the party to deal with the dispute without legal representation, after considering –
(i) the nature of the questions of law raised by the dispute;
(ii) the complexity of the dispute;
(iii) the public interest; and
(iv) the comparative ability of the opposing parties or their representatives to deal with the dispute.
11. In this matter, both parties including myself as the Panelist, consented to the Applicant having legal representation during the proceedings. Therefore, the Applicant was permitted legal representation.
The issue’s to be decided
12. I am to determine if the Applicant’s dismissal was procedurally and substantively fair. If I find that the Applicant’s dismissal was unfair, I am further required to determine the appropriate relief.
13. The substantive issues in dispute, were the reason(s) for the dismissal.
14. The Applicant was charged for the “alleged theft of the Covid-19 essential PPE in the form of cloth masks, face shields, surgical masks, non-sterile gloves and hand sanitizers in that on 31 May 2020, Higher Health confirmed delivery of aforesaid Covid-19 items. On or about 4 July 2020 you then brought the aforesaid Covid-19 items with missing quantities to the College”. Furthermore “it is alleged that on or about 4 June 2020, you have deliberately ignored, or disobeyed an instruction issued by Mr MI Mabe, being the Deputy Principal: Corporate Services, to assist Ms C Lukhele in counting the PPE items and quantities after your delivery thereof”.
15. The Applicant was found guilty on both charge(s).
The background to the dispute
16. It was common cause that the Applicant was employed as a Student Support Manager since 1 March 2010 and was earning a monthly salary of R36, 177-87.
17. The Applicant worked a 5-day week, at an average of 8 hours per day.
18. The Applicant stated that she was dismissed on 24 November 2020.
19. The Respondent submitted documents that were marked “R” and paginated accordingly.
20. The Applicant submitted documents that were marked “A” and paginated accordingly.
21. The Applicant sought retrospective reinstatement.
Summary of evidence and argument
The testimony led by the witnesses’ is fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.
Respondent’ case
Ms Nqobile Maseko
22. The witness testified under oath that she was a Provincial Monitoring and Evaluation Coordinator (Higher Health).
23. The essence of the witness testimony inter alia was that Higher Health was an organization that implemented wellness programs at Technical Vocational Education and Training College’s (“TVET”).
24. She submitted several “emails” pertaining to the Personal Protective Equipment (“PPE”) items that were sent to the Respondent and were intended for students and volunteers.
25. She said that the PPE items were delivered on 4 June 2020, and the initial delivery address was that of the Respondent’s, however the driver could not get hold of the Applicant and he had subsequently delivered the PPE items to Tshwane University of Technology (“TUT”) in Witbank.
26. She said that she received a call from the Applicant who advised her that she would collect the PPE items, and all was in order as she had the distribution note.
27. She submitted documentary evidence of an “email” dated 4 June 2020, confirming the quantity of PPE items that had been delivered to the Respondent.
28. She submitted documentary evidence of an “email” dated 28 May 2020, that had been sent by her Line Manager, Ms Sudhindra Naidoo, where it was submitted that “…PPE material is scheduled for delivery and will arrive next week. Please contact me should you have any queries….”.
29. She submitted documentary evidence of a “delivery note” where it was submitted that the following items had been delivered:
Item: Quantity:
Pamphlets 8600
Posters 210
Cloth masks (singles) 1200
3 ply surgical masks (singles) 200
Face shields (singles) 100
Hand sanitizer (single 150 ml bottles) 200
Non-sterile gloves (boxes) 100
Body covers (singles) 0
N95 masks (singles) 0
Sterile gloves (boxes) 0
30. She said that as it had indicated on the “delivery note” it was supposed to be signed in acknowledgement that the items had duly been received.
31. She said that the discretion to distribute the PPE items formed part of the Student Support Division.
Under cross-examination (only concessions or significant versions put are recorded)
32. Maseko explained that the PPE items were sent to the Student Support Division that were meant for the person(s) that were conducting the screening.
33. Maseko explained that the Applicant was responsible for the distribution of the PPE items.
34. Maseko explained that the “delivery note” had been attached to the consignment.
Re-examination
35. In re-examination Maseko said that the process in terms of the distribution was that the material was normally delivered to the central college and were verified then taken to the Student Support Division for distribution to the person(s) who were meant to conduct the screening.
Mr Molifi Mabe
36. The witness testified under oath that he was the Deputy Chief Executive Officer (“CEO”) and Principal (he was also responsible for Corporate Services).
37. The essence of the witness testimony inter alia was that he received an email from the CEO, Mr Cain Maimela, where it indicated that Higher Health had donated PPE items (Covid related). Due to his role and being responsible for Corporate Services, he remained accountable for the donation. Furthermore, due to his position, whereby all Deputy Principal(s) were subsequently appointed as the Chairperson(s) for the respective Covid-19 Steering Committee(s), he was expected to ensure that the necessary planning and execution ensued with regards to the donation.
38. He said that he had followed up whether or not the donation had been delivered with the Higher Health Co-ordinator, Ms Zanele, who informed him that the driver had gotten lost, such that the items were delivered to TUT (Witbank) campus and the Applicant had advised her that she would be collecting the PPE items.
39. He said that the Applicant had collected the PPE items, but they were at her place of residence, and he had requested that the Driver collect the PPE items from the Applicant’s home, however the Applicant refused the offer and insisted that she would make use of her own private transport in order to return the PPE items to the Respondent’s premises.
40. He said that on the following day, he had enquired of the Applicant whether or not the PPE items had been returned to the Respondent’s premises, however the Applicant had not returned them at that stage.
41. He said that he had instructed the Driver/Supply Chain Clerk, Mr Reuben Nkadimeng, to collect the PPE items with the Applicant at her residence, however the Applicant had refused to go with the Driver/Supply Chain Clerk, Mr Reuben Nkadimeng. In doing so, the Applicant had refused to obey a reasonable and lawful instruction.
42. He said that the following day he was asked to report to reception as the Applicant had delivered the goods approximately 3 (three) boxes, that had already been opened and were resealed.
43. He said that Higher Health had sent the “delivery note” that had indicated the number of items that were delivered and as such it would have been fair for the Applicant to assist the Logistics Co-ordinator, Ms Catherine Lukhele, to count the PPE items. Furthermore, he had also contacted the Employee Relations Manager, Mr Charles Mamphagoro, to be present when counting the PPE items, however the Applicant had said that she had no time to waste as she had important things to attend to and could not count the PPE items.
44. He said that the Logistics Co-ordinator, Ms Catherine Lukhele, and the Employee Relations Manager, Mr Charles Mamphagoro, counted the PPE items and determined that a number of the PPE items were missing, and that the boxes had been opened.
45. He submitted documentary evidence of an “email” dated 31 May 2020, where it was submitted that “please refer to the below request and plan accordingly”.
46. He submitted documentary evidence of an “appointment – Nkangala TVET College Covid-19 Steering Committee Chairperson” that was signed on 21 July 2021, where it was submitted that “your role of a chairperson will commence on 14 May 2020”.
47. He said that he had requested the PPE items from the Applicant as it had been necessitated by the CEO, Mr Cain Maimela, and the Higher Health’s mandate were directed towards students and he wanted to account for the goods in terms of his accountability and responsibility. Furthermore, it was common cause that the Applicant would allocate the PPE items.
48. He said that the Applicant had not informed him whether or not the PPE items had been distributed and that the Applicant had refused the transport that was offered to her in order to collect the PPE items from her place of residence.
49. He said that he had instructed the Applicant on 3 (three) occasions, namely to check that the PPE items had been delivered to the incorrect place, secondly the Applicant refused the transport that was provided and thirdly, the Applicant had refused to count the PPE items.
50. He said that he issued a reasonable and lawful instruction(s) in the capacity of the Chairperson of the Covid-19 Steering Committee, Deputy Principal/CEO and Deputy Corporate Services.
51. He said that the Applicant was capable of complying with the instruction(s) within her capacity as a Manager.
52. He said that the Applicant’s appeared to have an attitude, was not willing to work with him and furthermore had undermined him.
Under cross-examination (only concessions or significant versions put are recorded)
53. Mabe explained that the Applicant had not reported directly to him, however the Applicant had reported directly to Mr Madushane, Deputy Principal (Academics) and the matter had been raised with the Applicant’s direct report, Mr Madushane, who had formed part of the Executive meetings that were held.
54. It was put to the witness that the reason why he had not been copied in the email from Higher Health, was due to the fact that the PPE items were a donation that was meant for the Student Support office. The witness contested this statement and said that the email was not selective, as a trail had been sent to him in order for him to plan accordingly.
55. It was put to the witness that the Applicant had previously received other PPE materials and there was never an issue. The witness contested this statement and said that he had not been involved with the other donations that had been received.
56. It was put to the witness that his appointment as the Chairperson of the Steering Committee was signed after the incident had taken place, as he was only appointed on 21 July 2020. The witness contested this statement.
57. It was put to the witness that the Applicant distributed the material, and he was unaware of the event. The witness contested this statement and said that the Applicant confirmed that she had collected the PPE items and she had not said that please bear in mind that she had already distributed some of the PPE items, furthermore nothing had prevented her from disclosing such.
58. It was put to the witness that when he first contacted the Applicant, he accused her of theft. The witness contested this statement and said that was not the truth as he always maintained his professionalism.
59. It was put to the witness that the Applicant had not been interviewed during the internal investigation as the Respondent had already made up their mind with regards to the Applicant’s alleged conduct. The witness contested this statement and said that the Applicant should have had the right to be heard and he was not aware of the reason(s) as to why she was not interviewed, as one could not make a mockery of Labour Relations.
60. It was put to the witness that he had testified that the Applicant queried as to why he was querying the whereabouts of the PPE items, when in fact the items were meant for Student Support Division. The witness responded and said that there should not be any misunderstanding as the PPE items were meant for the college not for an individual and any donation was donated in the name of the college and not for a particular unit.
61. It was put to the witness that the Applicant had distributed the PPE items. The witness contested this statement and submitted that at no point had the Applicant raised these issues nor advised of such.
62. It was put to the witness that he had targeted particular PPE items i.e., masks and face shields. The witness contested this statement and said that the flyers were not missing based on boxes that had not been tampered with, which suggested that they were not missing, and he requested the Applicant to count the PPE items, however she refused.
63. It was put to the witness that the Applicant would not have been able to assist with the counting of the PPE items as she had already been accused. The witness contested this statement and said that whilst Higher Health made donations, the items could not go directly to the students, as the Applicant reported to the Central Office.
Ms Catherine Lukhele
64. The witness testified under oath that she was an Administration Officer (Logistics).
65. The essence of the witness testimony inter alia was that on 4 June 2020, she was working at the reception and the Deputy Principal, Mr Molifi Mabe, had provided the trip authority to the Supply Chain Officer, Mr Reuben Nkadimeng to complete and return, however the trip had not taken place.
66. She said that the PPE items had been delivered to the office by the Applicant without a delivery note.
67. She said that she had advised the Deputy Principal, Mr Molifi Mabe, when the PPE items had been delivered and he requested the Applicant to assist with the counting of the PPE items and requested that the Employee Relations Manager, Mr Charles Maphagoro, to also assist with the counting of the PPE items.
68. She said that the Applicant had refused to count as the PPE items were meant for her office and not for the Deputy Principal, Mr Molifi Mabe.
69. She said that the Deputy Principal, Mr Molifi Mabe, had the authority to issue a reasonable and lawful instruction to the Applicant.
70. She said that the process that the Respondent followed when any items were delivered was a delivery note was submitted by the supplier, the items were checked and counted, the delivery note would be signed and a copy would be kept, the items would be placed in the storeroom followed by the inventory system being updated.
71. She said that if the Respondent distributed PPE items, then the person(s) would have to sign for those particular item(s).
72. She said that the Applicant should have counted the PPE items as per the procedure and produced the delivery note.
73. She said that there were several discrepancies, as per the following:
Item: Quantity:
Cloth masks (singles) 933
Face shields (singles) 98
Hand sanitizer (single 150 ml bottles) 185
Non-sterile gloves (boxes) 97
Disposable masks 50 (box)
74. She submitted documentary evidence of the “delivery note”.
75. She said that after the PPE items had been counted there were discrepancies with regards to the following items cloth masks, surgical masks, face shields, hand sanitizers and non-surgical masks. Such that 267 cloth masks, 3 boxes of surgical masks and 22 hand sanitizers were missing. Furthermore, that the flyers had not been counted, as they had not been tampered with.
Under cross-examination (only concessions or significant versions put are recorded)
76. Lukhele explained that the Deputy Principal, Mr Molifi Mabe, had the authority to provide instructions to sub-ordinates.
77. Lukhele explained that any items that were received including items from Higher Health would have to follow the same procedure.
78. Lukhele explained that the Applicant had never disclosed that she had already distributed some of the PPE items.
79. It was put to the witness that by not counting the flyers and the posters she had not achieved the purpose of counting in the first place, as such she was “selectively counting”. The witness contested this statement and said that the flyers were intact, however the other boxes had been torn.
Mr Reuben Nkadimeng
80. The witness testified under oath that he was a Supply Chain Officer.
81. The essence of the witness testimony inter alia was that on 4 June 2020, he was requested by the Deputy Principal, Mr Molifi Mabe, to take the Respondent’s vehicle in order to collect PPE items from the Applicant’s home.
82. He said that he had requested the trip authority and when he wanted to complete the Applicant’s details, the Applicant said that she would not require the transport as she would be using her own private transport to collect the PPE items.
83. He said that the Deputy Principal, Mr Molifi Mabe, had the authority to issue a reasonable and lawful instruction to the Applicant.
84. He said by offering the Applicant transport, it would have saved her a lot of unnecessary challenges.
Under cross-examination (only concessions or significant versions put are recorded)
85. It was put to the witness that the Applicant had not refused to carry out an instruction. The witness contested this statement and said that the vehicle was readily available, yet the Applicant had refused to comply with a reasonable and lawful instruction.
86. It was put to the witness that he was a rehearsed witness, and his intention was to aggravate the Applicant’s charges. The witness contested this statement and said that he was not a rehearsed witness, and he never fabricated the instruction that was given to the Applicant.
Applicant’s case
Ms Matshediso Manasoe
87. The Applicant testified under oath that she was a Student Support Manager.
88. The essence of the Applicant’s testimony inter alia was that she had worked for the Respondent for a period of 10 (ten) years. During the period of the hard lockdown, she was based at home and had been contacted by Higher Health, Ms Maseko, advising her that Covid related material would be issued to the Respondent. She said prior to the initial lockdown, she had been on leave and that she still had a few days of leave that were due to her.
89. She said that she was meant to return to work on 4 June 2020, but she had challenges with her permit for travelling purposes and she only arrived in Witbank on 1 June 2020.
90. She said that she was contacted by TUT, Mr Mahlangu, on 2 June 2020, who advised her that the material was at their premises, and she had utilized her private vehicle in order to collect the PPE items and confirmed that the PPE items would be kept safely.
91. She said that on 3 June 2020, she was contacted by the Deputy Principal ,Mr Molifi Mabe, and she was skeptical as she had not reported to him and informed him that she had the PPE items in her possession and would bring the PPE items back to the office on 4 June 2020.
92. She said that her fellow colleagues and the Co-ordinator, Ms Zanele, from Higher Health, were all attending training on 3 June 2020, however she had not been contacted in order to attend the training.
93. She said that on 3 June 2020, she arrived at the office and found the Co-ordinator, Ms Zanele, Student Support, Mr Makushe, Mr Bafedi (from another campus) and the Intern, Ms Nkadimeng. She said that Higher Health, had delivered a total of 13 (thirteen) boxes and all 4 (four) of her colleagues went with her to her place of residence in order to view the PPE items, as they were meant for their unit.
94. She said that the delivery of the boxes was not accompanied by a delivery note. Her colleagues accompanied her when the boxes were delivered to the Central Office.
95. She said that the peer volunteers/educators were meant to receive the PPE items.
96. She said that she was not aware that the Deputy Principal, Mr Molifi Mabe, had been appointed as the head of the Covid-19 Steering Committee.
97. She said that the Deputy Principal, Mr Molifi Mabe, had enquired with her on several occasions if the PPE items had arrived back at the Central Office and it felt like he was provoking her and had also accused her of theft.
98. She said that in front of her sub-ordinates, the Deputy Principal, Mr Molifi Mabe, had instructed her to count the PPE items and she felt humiliated. Furthermore, she said “I can’t count” as the time had not suited her, then she proceeded to walk away.
99. She said that on 5 June 2020, the Employee Relations Manager, Mr Charles Mamphogoro, had informed her of the alleged allegations and she was shocked, but that was not the first-time that allegations had been levelled against her, such that she had not responded to the email.
100. She said that on 12 June 2020, the Respondent had taken the material and the Coordinator, Ms Zanele and Mr Bafedi, who was from another campus had distributed the PPE items to the campuses.
101. She said that the material had been distributed with all of the volunteers and officials present to all of the campuses, including Central Campus, Witbank Campus, Mpondonkomo Campus, Middleburg Campus and Waterfall Campus.
102. She said that she had not been questioned as to where the missing PPE items had gone too.
103. She said that she had not uttered the words “…I will go at my own time”, “..I don’t have time for that…” to the Deputy Principal, Mr Molifi Mabe. She said that she had not stolen the PPE items but had distributed them.
104. She said that her direct report was the Deputy Principal (Academic) Mr Madashane and she had a good working relationship with him.
Under cross-examination (only concessions or significant versions put are recorded)
105. The Applicant explained that she collected the PPE items in her own capacity then stored them at her home, and she had lived within walking distance to the Central Office.
106. The Applicant explained that she could not sign the delivery note as she had not received one.
107. It was put to the Applicant that the Deputy Principal, Mr Molifi Mabe, was executing an instruction from the CEO, Mr Cain Maimela. The Applicant conceded to this statement.
108. It was put to the Applicant that she testified that she would bring back the PPE items on 4 June 2020, when she reported for duty. The Applicant contested this statement.
109. The Applicant explained that she had not complied with the instruction from the Deputy Principal, Mr Molifi Mabe, with the offer of the transport to collect the PPE items due to several reason(s).
110. The Applicant explained that she had not complied with the instruction from the Deputy Principal, Mr Molifi Mabe, with regards to the counting of the PPE items as she had already been accused and was in an emotional state.
111. It was put to the Applicant that she was upset and could have uttered any words at that particular point in time furthermore, the Deputy Principal, Mr Molifi Mabe, had no reason not to tell the truth. The Applicant contested this statement and said that the Deputy Principal, Mr Molifi Mabe, was not telling the truth.
112. The Applicant explained that she knew she would be accountable for the PPE items, however she had not received a delivery note and as such did not have any record when the items had been distributed from her home, due to it being critical and urgent.
113. It was put to the Applicant that it was not safe to have stored the PPE items in her back room during a pandemic. The Applicant contested this statement and said that it was safe as the gate was locked.
114. It was put to the Applicant as a Manager she had distributed items on 3 June 2020 and 12 June 2020, yet she did not have any records to substantiate her claim. The Applicant contested this statement and said that the records from 12 June 2020 were available.
115. The Applicant explained that she was not aware of the exact number of PPE items that had been distributed.
116. It was put to the Applicant that her versions were contradictory as she initially said during the disciplinary hearing that she was only aware that the Deputy Principal, Mr Molifi Mabe, was the Chairman of the Covid-19 Steering Committee on 4 June 2020, now her version was changing that she only became aware at the disciplinary hearing. The Applicant contested this statement and said that the minutes from the disciplinary hearing was not a true reflection of what had occurred and the Deputy Principal, Mr Molifi Mabe, had never sat her down in order to explain it to her.
117. It was put to the Applicant that the Deputy Principal, Mr Molifi Mabe, had been duly appointed as the Chairperson of the Steering Committee on 14 May 2020, however she had not been included in the meetings that were held. The Applicant conceded to this statement and said that she was not aware as she had been based at home during that period.
118. It was put to the Applicant that no Student Support Officials had formed part of the Steering Committee. The Applicant contested this statement and said that they had formed part, but perhaps they had formed part of the sub-committee(s).
119. It was put to the Applicant that her direct report, Mr Madashane, represented the Student Support Division at the Steering Committee. The Applicant contested this statement and said that Mr Madashane, would never support Student Services in that capacity, and she was being sabotaged.
120. The Applicant explained that she could not recall the number of hand sanitizers that she had distributed on 3 June 2020 and no criteria was used for the distribution.
121. It was put to the Applicant that she had indicated that she had challenges with transport, yet she had refused the transport that the Respondent had provided for her. The Applicant contested this statement and said that she had transport available.
122. It was put to the Applicant that if she had complied with the instructions that were given to her by the Deputy Principal, Mr Molifi Mabe, the matter could have been avoided and that she was the architect of her own misfortunes. The Applicant contested this statement and said that it could have been avoided if he had approached her in a professional manner.
Re-examination
123. In re-examination the Applicant said that she had delivered the PPE items on 4 June 2020, and the instruction to collect the PPE items had been given to the Supply Chain Officer, Mr Reuben Nkadimeng.
Ms Zanele Mandlaze
124. The witness testified under oath that she was a Health and Wellness Coordinator (Higher Health).
125. The essence of the witness testimony inter alia was that on 3 June 2020, the Applicant had contacted her whilst she was at the Witbank campus conducting training.
126. She said that the Applicant had arrived at Witbank campus and informed Mr Bafedi (who was from another campus), Student Support, Ms Makushe, the Intern, Ms Nkadimeng and herself about the arrival of the PPE items and they were requested to accompany her to her home where the PPE items had been kept.
127. She said that when she arrived at the Applicant’s home, she saw 13 (thirteen) sealed boxes. She said they opened the big box in order to establish what the contents were and some of the PPE items had been distributed to Higher Health volunteers at the Witbank campus.
128. She submitted documentary evidence of the “disciplinary hearing report” where it was submitted that “…they took some PPE for themselves…”, she said that meant that the PPE items had been distributed to the volunteers.
Under cross-examination (only concessions or significant versions put are recorded)
129. Mandlaze explained that she could not remember the exact number of PPE items that she had taken for her own personal use, as they were meant for the volunteers.
130. It was put to the witness that her versions were contradictory as she had first indicated that she had not taken any PPE items for her personal use now her version had changed. The witness conceded that she had taken some PPE items for her own personal use.
131. It was put to the witness that it was the duty of the Applicant to keep a record of any transactions.
132. It was put to the witness by virtue of the Deputy Principal, Mr Molifi Mabe, position he could issue a lawful and reasonable instruction to the Applicant.
133. It was put to the witness that the following items were unaccounted for 267 (two hundred and sixty-seven) masks, 153 (one hundred and fifty-three) surgical masks, 22 (twenty-two) hand sanitizers and 3 (three) boxes of sterile gloves. The witness explained that she could not recall how many that she had distributed.
134. It was put to the witness that the “email” she had forwarded on 11 March 2021, had been tampered with as she had copied and pasted the contents of the mail.
135. Mandlaze explained that she had been invited to attend the Covid-19 Steering Committee meetings, which commenced on or about early June 2020 and that the Deputy Principal, Mr Molifi Mabe, was the Chairperson.
136. It was put to the witness that the Covid-19 Steering Committee had been in existence since June 2020. The witness conceded to this statement.
137. Mandlaze explained that she had only received some PPE items from the Respondent for her personal use and the Respondent had given employees money to purchase their own PPE.
Re-examination
138. In re-examination Mandlaze said that she had to copy and paste the email she had sent the Applicant due to the email appearing blank, if she had just simply forwarded it.
Analysis of evidence and argument
139. There was a bundle of documents submitted by the Respondent listed as “R” and marked accordingly.
140. There was a bundle of documents submitted by the Applicant listed as “A” and marked accordingly.
141. In terms of Section 185 of the “LRA” every employee has the right not to be unfairly dismissed. Section 192(1) of the “LRA” as amended provides that “in any proceedings concerning dismissal, the employee (the Applicant) must establish the existence of the dismissal”. Concerning the matter before me the dismissal was not in dispute, therefore the onus shifted to the Respondent to prove that the dismissal was procedurally and substantively fair.
142. I am therefore guided by the guidelines in cases of dismissal for misconduct:
143. In considering the substantive fairness of the dismissal, I am required to consider Item 7 of the Code of Good Practice: Dismissal, (the Code), as set out in Schedule 8 of the “LRA”.
144. Any person who is determining whether a dismissal for misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
145. In the case of Rubric Consulting (Pty) Ltd v Dixon & others (JR 1972/14) (LC) the court held when “determining the substantive fairness of a dismissal each case must be determined on its own merits”.
146. In the case of Industrial Development Corporation of South Africa Limited v Roscher, Myhill and the CCMA (JR2946/10) [2017] ZALCJHB 156, the Court held in “cases of misconduct, each case must be decided on its own merits”. Furthermore, “…the discipline of senior staff is not dependent on the discipline of their managers, each employee has a duty to discharge his/her scope of work as expected and contracted for”.
147. In the case of Pienaar v Manzana N.O and Others (JR2907/12) [2016] ZALCJHB 169 the Court held “the dismissal of the Employee for misconduct relating to carelessness or failure to exercise due care or attention as a senior manager…” to be “substantively fair”.
148. In the case of Cecil Nurse (Pty) Ltd v Busakwe NO & others [2015] 28 (LC) the Court held that “when assessing the conduct of an employee that is of dishonest nature, the long-established rule applied in the Labour Court and Labour Appeal Court, i.e. that the presence of dishonesty tilts the scales to an extent that even the strongest factors, such as long service and a clean record, the sanction of dismissal in cases of dishonesty, must prevail…”.
149. In the case of Noosi v Exxaro Malta Coal (JA 62/2015) (2017) ZALAC 3 the court held that “the test for insubordination is not whether instructions were reasonable and lawful. Should it be shown that the instruction was unlawful, the inquiry would end there. However, if it is found that the instruction was lawful, the expectation is that the employee to whom such an instruction was issued should have complied”.
150. The Applicant submitted that she was unfairly dismissed for substantive reason(s).
151. The Respondent’s representative led overwhelming evidence in that the Applicant contravened a rule. The Respondent’s witness, Ms Nqobile Maseko, submitted documentary evidence of “emails” pertaining to the PPE items that were sent to the Respondent and were intended for students and volunteers. The Respondent’s witness, Ms Nqobile Maseko, submitted oral testimony that she received a call from the Applicant who advised her that she would collect the PPE items, and all was in order and she had the distribution note. The Respondent’s witness, Ms Nqobile Maseko, submitted documentary evidence of a “delivery note” where it indicated the quantities of the number of items that were delivered “pamphlets 8600, posters 210, cloth masks (singles) 1200, 3 ply surgical masks (singles) 200, face shields (singles) 100, hand sanitizers (single 150 ml) bottles 200, non-sterile gloves (boxes) 100”. Furthermore, she submitted oral testimony that the material was normally delivered to the central college and were verified then taken to the Student Support Division for distribution to the person(s) who were meant to be conducting the screening.
152. The Respondent’s other witness, Mr Molifi Mabe, submitted documentary evidence of an “email” that was sent by the CEO, Mr Cain Maimela, where it indicated that Higher Health had donated PPE items and he was meant to “plan accordingly”. The Respondent’s witness, Mr Molifi Mabe, submitted documentary evidence of a “delivery note” that had indicated the number of items that were delivered and as such, it would have been fair for the Applicant to assist the Logistics Coordinator, Ms Catherine Lukhele, to count the PPE items. The Respondent’s witness, Mr Molifi Mabe, submitted oral testimony that the Applicant had refused to follow a reasonable and lawful instruction that he had requested and as such, she had refused to count the PPE items. The Respondent’s witness, Mr Molifi Mabe, submitted documentary evidence of “appointment – Nkangala TVET College Covid-19 Steering Committee Chairperson” that was signed on 21 July 2020, where it was submitted that “your role of a chairperson will commence on 14 May 2020”. The Respondent’s witness, Mr Molifi Mabe, submitted oral testimony that Applicant had not informed him whether or not the PPE items had been distributed and that the Applicant had refused the transport that was offered to her order to collect the PPE items.
153. The Respondent’s other witness, Ms Catherine Lukhele, submitted oral testimony that the discrepancies that had been identified when counting the PPE items, being “cloth masks (singles) 933, face shields (singles) 98, hand sanitizers (single 150 ml bottles) 185, non-sterile gloves 97 and disposable masks 50 (box)”. Such that “267 cloth masks, 3 boxes of surgical masks and 22 hand sanitizers were missing”.
154. The Respondent’s other witness, Mr Reuben Nkadimeng, submitted oral testimony that he requested the trip authority based on the instruction that he received and when he wanted to complete the Applicant’s details, the Applicant said that she would not require the transport, as she would be using her own private transport.
155. The Respondent’s witness(s) who testified, Ms Nqobile Maseko, Mr Molifi Mabe, Ms Catherine Lukhele and Mr Reuben Nkadimeng, were good and credible witness(s), their versions were relevant, reliable and consistent. Oral and documentary evidence was submitted with regards to the rule or standard that was in place, it was evident that it had been broken.
156. The Applicant was not a credible witness, her versions were relevant although at times appeared to be evasive, contradictory, and improbable.
157. The Respondent’s representative demonstrated and discharged his onus to prove that substantive fairness was adhered to.
158. In my view, on a balance of probabilities the Applicant clearly contravened a rule(s) in the workplace that was known to herself and the rule was consistently applied.
159. Section 193(2) of the Act provides that “The Labour Court or the arbitrator must require the employer to re-instate or re-employ the employee, unless –
a. the employee does not wish to be reinstated or re-employed;
b. the circumstances surrounding the dismissal are such that a continued relationship would be intolerable;
c. it is not reasonably practicable for the employer to re-instate or re-employ the employee; or
d. the dismissal is unfair only because the employer did not follow a fair procedure.”
160. The Applicant indicated that she sought retrospective reinstatement.
161. The Applicant on her own version, submitted that she collected the boxes and stored them at her place of residence. Furthermore, the Applicant during cross-examination conceded “that she knew she would be accountable for the PPE items, however she had not received a delivery note and as such did not have any record when the items had been distributed from her home, due to it being critical and urgent”. The Applicant during her evidence in chief, submitted that “on 3 June 2020, she arrived at the office and found the Coordinator, Ms Zanele, Student Support, Mr Makushe, Mr Bafedi (from another campus) and the Intern, Ms Nkadimeng. She said that Higher Health, had delivered a total of 13 (thirteen) boxes and all 4 (four) of her colleagues went with her to her place of residence in order to view the PPE items, as they were meant for their unit”. The Applicant during cross-examination conceded that that she had distributed items on 3 June 2020 and 12 June 2020, but she only “had proof from 12 June 2020”. The Applicant during cross-examination explained that her refusal to carry out a reasonable and lawful instruction “could have been avoided if he had approached her in a professional manner”.
162. On a balance of probabilities, in relation to the Applicant’s refusal to obey a reasonable and lawful instruction. The Respondent’s witness, Mr Molifi Mabe, testified that by virtue of his position in the capacity of the Chairperson of the Covid-19 Steering Committee, Deputy Principal/CEO and Deputy Corporate Services, he was duly authorized to provide a reasonable and lawful instruction to the Applicant. This was further corroborated by the Respondent’s other witness, Ms Catherine Lukhele. I am perplexed that the Applicant deemed it acceptable not to follow a reasonable and lawful instruction by being requested to count the PPE items. The Applicant fulfilled a leadership role and was furthermore custodian of Student Support Services. The Applicant received the PPE items and after storing them at her home, returned them to the Respondent’s Central Office. The mere fact that she was the responsible and accountable person for the PPE items and the distribution thereof, it was not unreasonable and unlawful in these circumstances to count the PPE items by virtue of the Applicant’s delivery of the PPE items to ensure the accountability and accuracy thereof. See the case of Noosi v Exxaro Malta Coal (JA 62/2015) (2017) ZALAC 3.
163. In my view, on a balance of probabilities, on the Applicant’s own version she submitted that her direct report was Mr Madushane, Deputy Director (Academics). Whilst I understand that the Deputy Principal, Mr Molifi Mabe, was clearly not the Applicant’s direct report. By virtue of Mr Molifi Mabe’s, position of authority and furthermore his appointment as the Chairperson of the Covid-19 Steering Committee, it necessitated the need for him to remain accountable and to ensure that his primary responsibilities in relation to the Covid-19 Steering Committee mandate on campus as per the instruction that was issued to him by the CEO, Mr Cain Maimale, to “plan accordingly”. In my view, considering that the PPE items were initially collected from TUT campus by the Applicant, the Deputy Principal, Mr Molifi Mabe, was not unreasonable and unlawful in instructing the Applicant to count the PPE items to ensure accountability and the compliance thereof, in line with the Covid-19 Steering Committee’s mandate.
164. On a balance of probabilities, in relation to the Applicant collecting the PPE items and then returning to them to the Respondent with missing quantities. The Applicant in her evidence in chief submitted that the PPE items were meant for “peer volunteers/educators”. The Applicant conceded that PPE items were distributed on “3 June 2020 and 12 June 2020” and “she was not aware of the exact number of PPE items that had been distributed”. The Applicant submitted that when she collected the PPE items from TUT Campus, she had not received a delivery note.
165. In my view, on a balance of probabilities, the Applicant could not produce any documentary proof that the “peer volunteers/educators” had indeed received the PPE items that were intended for their use. The Applicant’s witness, Ms Zanele Mandlaze, conceded during cross-examination that she “could not remember the exact number of PPE items that she had taken for her own personal use, as they were meant for the volunteers”. Furthermore, that “she could not recall how many she had distributed”. The Applicant could not produce any proof to substantiate her version that the PPE items were distributed on 3 June 2020 and 12 June 2020, the only evidence was her witness, Ms Zanele Mandlaze, who was a poor witness and not a credible witness, who could also not substantiate the whereabouts of the PPE items. The Respondent’s witness, Ms Catherine Lukhele, submitted “the process that should have been followed when items were delivered, was a delivery note was submitted by the supplier, the items were checked and counted, the delivery note would be signed and a copy would be kept, the items would be placed in the storeroom, followed by the inventory system being updated”. This was further corroborated by the Respondent’s other witness, Mr Molifi Mabe, who submitted that when “Higher Health made donations, the items could not go directly to the students”.
166. In my view, on a balance of probabilities, the Applicant as a reasonable and responsible person ought to have investigated if the “delivery note” had not been attached to the delivery, by doing so she could have tallied and accounted for each item that had been delivered. On the Applicant’s own version, the PPE items had been distributed to peer volunteers/educators on 3 June 2020 and 12 June 2020, yet as a Manager in a Leadership role she kept no records where educators/volunteers could have signed in acknowledgement of the PPE items as such, they was no rationale nor criteria that was used in relation to how the distribution occurred, in addition to no control measures that had been put in place. South Africa was still in adjusted level 3 lock down during June 2020, and on the Applicant’s version she submitted that the students returned during early July 2020, therefore it seems peculiar that the Applicant was “urgently” distributing PPE items, when the students had not even arrived on campus at that particular stage. See the case of Pienaar v Manzana N.O and Others (JR2907/12) [2016] ZALCJHB 169 and Industrial Development Corporation of South Africa Limited v. Roscher, Myhill and the CCMA (JR2946/10) [2017] ZALCJHB 156.
167. In the case of Fidelity Cash Management Services v CCMA and others [2008] 3 BLLR 197 (LAC) the court held that “fairness was determined mostly on the basis of the reason for the dismissal which the employer had given at the time of the dismissal. Then “…the Court or tribunal must determine the fairness based on the true reason for the dismissal”. With reference to this case, I must place on record in this case whilst I have considered all of the evidence that was presented, I have only considered the charge(s) that were levelled against the Applicant as per the charge sheet, in my determination and not the other allegation(s), pertaining to the Applicant refusal to accept the transport offered by the Respondent, in order to collect the PPE items.
168. In my view, the Applicant had been employed for a period of almost 10 years, which is indeed an extensive period of time. In addition, the Applicant fulfilled a senior leadership role, as a Student Support Manager. The very essence of any employment relationship is based on trust, honesty and respect. The Applicant as a reasonable and responsible person ought to have known better. Furthermore, it was expectant and prudent of the Applicant to act ethically, with integrity and honesty to ensure that her conduct complied to the Respondent’s policies and procedures and to furthermore ensure that she remained accountable for her department, by virtue of her position. See the case of Cecil Nurse (Pty) Ltd v Busakwe NO & others [2015] 28 (LC).
169. The Applicant was afforded an opportunity to ventilate the dispute during the proceedings at the ELRC. Thus, the Applicant was not prejudiced
170. I accordingly make the following Award:
Award
171. The dismissal of the Applicant, Ms Manasoe Matshediso, by the Respondent, the Department of Higher Education and Training (Nkangala TVET College) was substantively fair.
172. The application is dismissed.
173. The ELRC is hereby ordered to close the file.
Thus, signed and dated on the 12 November 2021.
Leanne Alexander
ELRC Panelist