ELRC21-21/22GP

Commissioner: George Georghiades
Case No.: ELRC21-21/22GP
Date of Award: 09 March 2022

In the ARBITRATION between:

VIWU obo BUDA, ELIAS OUPA
(Union / Applicant)
and

DEPARTMENT OF HIGHER EDUCATION AND TRAINING (TSHWANE SOUTH TVET COLLEGE)
(Respondent)

Union/Applicant’s representative: Mr. Thabani Zondo
Union/Applicant’s address: Vision Integrated Workers’ Union (VIWU)
41 Cecil Auret Road
Illiondale, Edenvale, 1609
Telephone: 011 037 1087
Telefax: 086 617 7851
Email: smollzondo@gmail.com

Respondent’s representative: Mr. Tebogo Thabane
Respondent’s address: Tshwane South TVET College
85 Francis Baard St, Pretoria Central
Pretoria
0001
Telephone: 012 401 5120
Facsimile: 012 401 5055
Email: thabane@tsc.edu.za


DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between VIWU obo Buda, Elias Oupa and the Department of Higher Education and Training (Tshwane South TVET College), was held under the auspices of the Education Labour Relation Council (“ELRC”), via Zoom Meetings.
2. The matter was set down for arbitration on 23 April 2021, as referred in terms of section 191(5)(a), of the Labour Relations Act 66 of 1995, as amended (LRA), the nature of the dispute being unfair dismissal. The arbitration hearing was conducted over thirteen days, commencing on 18 May 2021, and finally concluded on 21 February 2022.
3. The proceedings were conducted in English and were manually and digitally (video and audio) recorded.
4. The applicant was represented by Mr. Thabani Zondo, General Secretary of VIWU, while the respondent, being the Tshwane South TVET College (DHET), was represented by Mr. Tebogo Thabane.
5. The parties submitted their evidence bundles to the panellist via email, copying the opposing party prior to the commencement of the arbitration proceedings. The respondent submitted its bundle of documents which was marked as bundle “R” and the applicant submitted its bundle, which was marked as bundle “A”.
PRELIMINARY ISSUES
6. At the hearing on 18 May 2021, the respondent was represented by its legal representative, Mr. Bongani Khoza, whom it claimed was appointed to act on its behalf at the arbitration hearing. No application had been made to the council in line with the ELRC’s constitution, for legal representation. I raised the locus standi of respondent’s legal representation as a point in limine and an objection was further raised by the applicant’s representative, Mr. Thabani Zondo against the respondent’s right to legal representation at the arbitration hearing.
7. The parties were requested to address the panellist in respect of the respondent’s legal representation. Both parties submitted their respective written submissions and arguments in line with the council’s constitution. After having heard the submissions of the parties and having considered the provisions of clause 17.4 of the Constitution of the ELRC dealing with dispute resolution procedures, I ruled that the respondent’s request for legal representation was not granted
8. On 29 June 2021, the principal of the Tshwane South TVET College, Adv. Joseph Chiloane, represented the respondent in respect of a point in limine, being an objection to the representation of the applicant by Mr. Thabani Zondo, general secretary of VIWU, at an arbitration hearing in respect of a dismissal relating to misconduct. A written objection was submitted to the council on 28 June 2021 advancing the respondent’s reasons and arguments.
9. Arguments and submissions were made by both parties in respect of the objection to trade union representation. I ruled that as the respondent had provided its objection at 22h51, on 28 June 2021, the night before the hearing, the applicant should be afforded an opportunity to make a written submission in this regard. Once received, I would consider this and issue a ruling in this regard.
10. A written ruling was issued in respect of the objection by the respondent to trade union representation, wherein which the application was dismissed and trade union representation at the arbitration was granted.
ISSUES TO BE DECIDED
11. This matter is brought in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995, as amended (LRA) and relates to unfair dismissal for misconduct.
12. I am tasked to determine whether the dismissal of the applicant was substantively fair, and should relief be required, to order the appropriate relief.
13. The applicant has requested that should I find in his favour, that he be reinstated retrospectively, without any loss of benefits.
BACKGROUND TO THE DISPUTE
14. The applicant, Mr. Elias Oupa Buda, was employed as a lecturer at the Atteridgeville campus of the Tshwane South TVET College. He was dismissed on 17 July 2020, after he was found guilty at a disciplinary hearing on two counts of misconduct.
15. The two counts of misconduct related to charges in respect of clauses 6 and 7 of the respondent’s disciplinary code and Procedures for the Public Service, as contained in Resolution 1 of 2003, being (1) gross dereliction of duty, alternatively, gross insubordination and (2), gross dishonesty.
16. The allegations relating to the first charge in respect of gross dereliction of duty, referred to the failure by the applicant to have administered Task 2: Formal Test 1, as per the common assessment timetable on 19 March 2018, which duty was entrusted to him, without permission or authorisation not to have administered such.
17. The allegations relating to the first charge in respect of gross insubordination, referred to the applicant’s postponement on 19 March 2018, of Task 2: Formal test 1 to a later date, as per the common assessment timetable, without having been authorised, or granted permission to have done so.
18. The allegations relating to the second charge, referred to the applicant deliberately misleading campus management on 20 March 2018, by furnishing an email to his immediate supervisor, wherein which he falsely stated that he had failed to administer Task 2: Formal Test 1 on 19 March 2018, due to the campus not having ink cartridges, which the respondent alleged, was false. and dishonest.
19. As per provisions of Schedule 8 and CCMA Guidelines on Misconduct Arbitrations of the LRA, issues were narrowed and in terms thereof, it was agreed that the dismissal was not in dispute. The applicant disputed the fairness of the dismissal, claiming that he did not breach the rules, that the respondent failed to act consistently in the application of the rules and that dismissal was not an appropriate sanction.
20. The onus of proof was therefore on the respondent to show on a balance of probabilities that the applicant’s dismissal was both procedurally and substantively fair.
21. Both the applicant and the respondent’s representative led evidence relying on documents and witness testimony to prove their respective cases. The applicant confirmed that he intended to call three witnesses to testify, while the respondent’s representative confirmed that he intended to call six witnesses to testify on behalf of the respondent.
22. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Both parties did so in writing, and I have considered these in my award below.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE RESPONDENT`S CASE:
The respondent’s first witness, Mr. Trevor Charles Denzel Fredericks, testified under oath that:
23. He was employed as a Labour Relations Consultant by the Tshwane South TVET College (TS TVET College), having carried out labour relations work on behalf of the college, since 2011. As per the amendments to the Public Service Act in 2015, he did not act further on behalf of the college, continuing only to assist in respect of employees who did not fall under the Public Service Act.
24. He conducted induction training in 2013 in respect of the respondent’s assessment policy, where the applicant was in attendance. He had further dealings with the applicant during an internal disciplinary hearing, where he was called as a witness at the applicant’s brother’s disciplinary hearing. The hearing in respect of the applicant’s brother, related to non-compliance of the assessment policy.
25. The purpose of the assessment policy was to regulate the compliancy of learners and the campus’s lecturing staff. The key principle of the policy was to ensure that learners gained both practical and theoretical knowledge, in order to successfully complete their respective programmes.
26. Failure by learners to write assessments could have a detrimental effect on their academic programme, where they could possibly fail and drop out of the college, especially since most learners were funded by NSFAS, who required learners to pass their academic year, for funding to be continued.
27. The process of assessment was clearly contained in the respondent’s Assessment Plan. This plan distinctly referred to the provision of assessment dates, which were determined early in the academic year, and which prescribed that special permission was required to be obtained by lecturers timeously, in cases where they were unable to administer or conduct assessments as per the prescribed dates.
28. The Tshwane South TVET College had an assessment plan in place for 2018. The applicant clearly contravened the assessment plan, the process which was described in clause 10 of the assessment policy.
29. He was appointed by the TS TVET College to investigate the conduct of the applicant in relation to the adherence to the respondent’s assessment policy. His findings established that the applicant was provided with a copy of the assessment plan and the assessment dates for 2018.
30. His findings established that the applicant was required to administer assessments on 19 March 2018, as per the common assessment timetable in respect of Computer Practice (Level 6) between 12h00 and 13h30. He failed to conduct the assessment. The applicant did not obtain any prior permission from his supervisor in order to not conduct assessments on 19 March 2018. The applicant failed to report the alleged shortage of cartridges to the deputy principle, prior to the date for which he was required to conduct assessments.
31. On the following day, being 20 March 2018, at 08h37, the applicant sent an email to his supervisor, Ms. Gina Khoza, advising her that the assessment of Computer Studies, level 6, could not be conducted on 19 March 2018, due to the unavailability of ink cartridges. Mr. S M Buda, who is the brother of the applicant, and who was also the Head of Department at the time, was copied in on the email.
32. The applicant did not act reasonably by only reporting that on 20 March 2018, due to the alleged unavailability of cartridges on 19 March 2018, he was unable to conduct assessments in respect of Computer Practice (Level 6) between 12h00 and 13h30.
33. He was required to have prepared for the conducting of his assessment prior to 19 March 2018. If he had done so and there was indeed a shortage of cartridges, the applicant would have reported this timeously. The applicant’s failure to have reported the lack of cartridges, suggests that there were cartridges available on campus on the day of the assessment.
34. According to entries in the Control Register for 80A cartridges, kept at the stores, which personnel and lecturers were required to complete and sign when drawing cartridges, a lecturer, Mr. Ramahlalerwa, collected a cartridge on 19 March 2018, for the venue where the applicant was required to conduct assessments. This infers that there were cartridges available on campus on 19 March 2018.
35. On 11 April 2018, Mr. SM Buda submitted an email to HO: Ms. Nomsa Mathye and HO: Rachel Ntsimane, advising them that tests were delayed due to a shortage of cartridges, wherein which he referred to an attached a letter which he had received from Computer Studies lecturers, and which he attached thereto.
36. Lecturers that were referred to in Mr. SM Buda’s email on 11 April 2018, were charged for misconduct and dismissed after having been found guilty of the transgression for which Mr. EO Buda was charged and dismissed. This proves that the respondent acted consistently in dealing with misconduct.
37. On 16 March 2018, a colleague of the applicant, Mr. Ramahlalerwa, was required to conduct assessments, but was unable to do so due to a clash in his roster. He obtained permission to conduct his planned assessment at a later date.
38. In a letter to the principal of the college, Mr. JT Chiloane, in his capacity as Head of Department: General Studies, dated 16 April 2018, Mr. SM Buda confirmed that he did not authorise the postponement of any tests.
39. The applicant was not authorised to postpone any assessments unless such authorisation was provided by the deputy principal. Lecturers were required to make suitable preparations for the conducting of assessments, prior to the date of the assessments, as per the assessment policy and common assessment timetable. The applicant was aware of these but failed to comply thereto.
40. The availability of cartridges was not a key factor in respect of the conducting of assessments. There was nothing that prevented the applicant from having conducted the assessments on 19 March 2018 and saving these assessments from the learners’ user profile for printing at a later stage. The test/assessment itself, was prepared beforehand. The assessment could have proceeded in the absence of an ink cartridge, but the applicant failed to commence with the assessment.
The respondent’s second witness, Ms. Hilda Nomsa Mathye, testified under oath that:
41. She is the Head of Schools and General Studies of the Tshwane South TVET College, based at its head office since 2016. She has been employed by the college for 21 years. She is responsible for the development and implementation of the college’s curriculum, implementation of effective teaching standards and the maintenance of the college’s academic standards. She serves as the college’s head of moderation.
42. The Programme 191 Assessment Policy is applicable to all academic staff, its purpose being to ensure proper administration and to provide policies in respect of the conducting of assessments. The policy explains the roles and duties of lecturers and the purpose of assessments. These assessments are conducted according to a common assessment timetable,
43. The role of learners writing assessments according to the common assessment timetable, serves to provide a year mark, which is used to determine whether learners achieve a sufficient score, allowing them access to the final exam towards the end of the academic year. Assessments are mandatory and instructive, prescribed by the Department of Higher Education and Training.
44. It is crucial that all students who are engaged in a certain subject, are required to write a specific assessment at the same time. If some students fail to write an assessment at the prescribed time on a prescribed date, this compromises the quality of the assessment. The Assessment Policy guides the implementation of the assessment timetable.
45. Students are only provided with one chance to write an assessment. In the field of General Studies; there are three tasks that must be administered in order for a student to be permitted entry towards a final exam.
46. Lecturers are required to prepare in terms of the assessment schedule, ensuring that learners are ready for the assessments and that all potential and actual problems are addressed. These preparations include the preparation and ensuring the availability of printing paper, cartridges, and printers.
47. Should there have been any challenges or non-conformities in this regard, the HOD should have been alerted well in advance. The assessment timetable was compiled by HOD’s at campuses. The Head of Academics, who is the Deputy Principal, is the only person who is authorised to address non-conformance. The applicant, Mr. E O Buda, was not permitted or authorised to postpone or reschedule the assessment that was scheduled to be conducted on 19 March 2018.
48. The email that was sent to her and Rachel Ntsimane by Mr. SM Buda: HOD – General Studies, advising them that tests were delayed, allegedly due to a shortage of cartridges, was in response to an inquiry by the college, into the lack of cartridges. She was informed on 11 April 2018, that assessments were not conducted between 14 and 19 March 2018, at the TS TVET College: Atteridgeville campus.
49. Immediately after having been informed of the failure by lecturers to have conducted assessments, a management team went to the Atteridgeville campus to investigate the matter on 12 April 2018. Lecturers were called to an interview, where they claimed that they were unable to conduct assessments, due to the lack of availability of cartridges.
50. An inspection into the records of the campus and a physical inspection of the storeroom confirmed that there were cartridges available during the period for which lecturers were required to conduct assessments.
The respondent’s third witness, Ms. Gina Khoza, testified under oath as follows:
51. She is the Acting Head: General Studies & NCU, at the Atteridgeville campus of the Tshwane South TVET College and has occupied this position since June 2021. Prior to occupying this post, she was the Acting Senior Lecturer from 2014 to 2020.
52. Her functions include lecturing, marking of scripts, recording, and overseeing of marks, administration duties and supporting of lecturers. As a senior lecturer, her duties were very similar to those currently being undertaken, but as the Actin Head: General Studies & NCU, she was required to spend less time lecturing students and conducting more administrative duties. She was currently lecturing in computer related subjects, being Office Data Processing, levels 3 and 4.
53. Prior to conducting an assessment in respect of a computer-related subject, a lecturer is required to ensure that the venue is suitable, all “tools of trade” are available, key assessment material is loaded onto the computers and that all computers are in working order. Any problems should be reported to technicians and/or the relevant person, in order for them to address them.
54. Learners’ “tools of trade” in respect of computer-related subject assessments, include a computer, an ink cartridge, printing paper and a computer mouse. Learners are, however, able to proceed without the availability of printing paper and ink cartridges, as their information can be saved and printed later, or saved to memory stick and printed at a later stage.
55. There were six academic lecturers under her management, including the applicant, Mr. E O Buda. Computer laboratories were shared between lecturers.
56. On 19 March 2018, the applicant was required to administer the assessment in respect of Computer Practice (Level 6) between 12h00 and 13h30. He failed to conduct the assessment. On 20 March 2018, the applicant advised her via email, that he failed to administer the assessment on 19 March 2018, due to a lack of cartridges at the Atteridgeville campus.
57. She was surprised to have been advised of the applicant’s failure to have conducted the required assessment on 20 March 2018, allegedly due to a lack of cartridges, as he was expected to have reported this to her, prior to the date and time when the assessment was to be conducted. Due to the applicant’s failure to have reported the alleged unavailability of cartridges, she could not rectify the situation. The applicant was not authorised to postpone the assessments. This authority was only vested in the deputy principal, who, according to her, had not authorised such as postponement.
58. She was required to conduct assessments in respect of NCV: Data Processing – level 3 & 4 on 19 March 2019, which she carried out successfully. Mr. Ramahlalerwa, who was required to administer the assessment NCV: Data Processing – level 2 also managed to successfully administer his NCV assessments on 19 March 2018.
The respondent’s fourth witness, Mr. Tshilidzi S Libago, testified under oath as an expert witness that:
59. He is employed as an IT Support Technician at TS TVET College, where he has worked for the past four years. He has 14 years’ experience at various colleges as an IT Support Technician. His role and responsibilities include ensuring that staff and students are using sound devices that are properly connected and in good working order.
60. The duration of an ink cartridge is largely dependent on the type and condition of the printing device used, the number of pages printed, and the quality of paper. During all his years of working at colleges, he has never come across a situation where five cartridges were simultaneously exhausted at one campus.
61. Insofar as all the printers used by the TS TVET College, when the level of ink in the cartridges becomes low, a warning is emitted from the printer. The display panel of the printer indicates a warning to show that “Toner is low”. This warning is always evident when the ink in the cartridge is low.
62. In an instance where someone advises a day afterwards, that there was no ink in a cartridge, he considers this to be negligent behaviour on the part of that person and that the person failed to diligently carry out his/her duties.
63. Based on his experiences at the TS TVET College, as well as other colleges where he worked, fifty A80 cartridges were sufficient to last for more than a year. One ink cartridge of toner would last for approximately 2 months at each of the computer laboratories.
64. A delivery note on 23 January 2018, confirmed that twenty-five A80 cartridges were delivered to the Atteridgeville campus by Macs Office Supplies and on 14 June 2018, a further fifty A80 cartridges were delivered to the campus by Oligex Business Solutions. Seventy five A80 cartridges were delivered to the Atteridgeville campus for 2018.
65. A lecturer was able to administer and conduct an assessment in the absence of a printer and/or a printer cartridge. It was possible for the assessment or student’s information to be saved on a computer or a flash drive and printed at a later stage.
The respondent’s fifth witness, Mr. Goodman Mnisi, testified under oath that:
66. He is employed as the Deputy Principal of Tshwane South TVET College since 01 October 2020. At the time of the incident in respect of E O Buda, he was the Supply Chain Management (SCM) department’s Procurement Manager. He has been employed by the respondent since 1997, to date.
67. His role and responsibilities as the SCM Procurement Manager during the period January – December 2018, was to ensure proper service delivery in respect of institutionally purchased goods. This function is centralised at the TS TVET College. He was not aware of any shortage of cartridges during the period 01 March 2018 to 19 March 2018.
68. When goods were procured for the TS TVET College, a requisition was completed and submitted, this was approved by the relevant SCM official, the items contained in the requisition were then ordered, paid for, and finally delivered by the supplier to the college campus.
69. If a shortage of consumables, such as printer cartridges, arose during exams, the management of the college would approach its sister campuses to assist with consumables.
70. There were only two deliveries of cartridges to the Atteridgeville campus of the TS TVET College for 2018. On 23 January 2018, twenty-five A80 cartridges were delivered to the Atteridgeville campus by Macs Office Supplies and on 14 June 2018, fifty A80 cartridges were delivered to the campus by Oligex Business Solutions.
71. Cartridges are considered as “tools of trade” for lecturers and students at the college. These are prioritised, as the TS TVET College is a centre of learning.
72. It is the responsibility of the end-user to request that stock must be replenished. Stock of consumables is managed to ensure that there are no shortages, especially during assessments. All departments are reminded to ensure that there are sufficient consumables, especially during exam times.
73. He has never heard of or experienced any instance, where cartridges were unavailable during assessments and where students were unable to carry out their assessments. TS TVET College has always managed the purchasing and control of its consumables well.
74. According to the entries made in the Control Register for 80A-cartridges, Mr. E O Buda collected an 80A-cartridge from the stores on 10 March 2018. On 19 March 2018, Mr. Ramahlalerwa collected an 80-A cartridge from the stores. As per the delivery notes of the college in respect of cartridges, this infers that there were sufficient 80A-cartridges at the Atteridgeville campus of TS TVET College.
The respondent’s sixth witness, Mr. Joseph Chiloane, testified under oath that:
75. He is employed by the Department of Higher Education and Training (DHET), based at the TS TVET College for 19 years, where he is the Chief Executive Officer (CEO) / Principal of the college. He is responsible for the overall management and functioning of the college.
76. His core functions include education, teaching & learning, strategic planning & implementation of policies. The TS TVET College is a highly regulated institution and a “creature of statute”, reliant on legislation and policies in the day-to-day running of its affairs.
77. Lecturers are appointed in positions of trust, honesty, and integrity. They assume the responsibilities of guardianship on behalf of the college and in the absence of students’ parents. The lecturers are bound by a policy insofar as their code of conduct.
78. The college relies on an assessment policy, which provides direction insofar as the manner in which assessments are planned, conducted, administered, assessed, and moderated. Lecturers are bound by these policies and are required to comply thereto. Non-compliance to the policies by lecturers would result in disarray.
79. There has never been a shortage of cartridges at the Atteridgeville campus of the TS TVET College and even if there was a shortage, this would not be a problem, as cartridges were readily available from any of the college’s three sister campuses. The applicant, Mr. E O Buda, failed to administer the assessment on 19 March 2019 and acted dishonestly, using the lack of cartridges as an excuse for his failure to have administered the required assessment.
80. On 19 March 2018, Mr. Ramahlalerwa collected an 80A-cartridge from the stores, proving that there were cartridges available on the Atteridgeville campus. The applicant and the other five lecturers have fabricated a version to suggest that there were no cartridges available on campus during the assessment period.
81. During his tenure as CEO/principal of the TS TVET College over the past 18 years, he has dealt with the dereliction of duties and dishonesty by college employees. Employees who were found guilty of these transgressions were dismissed in line with the college’s disciplinary code and policies.
82. Employees who were found guilty and dismissed for dereliction of duties and dishonesty, severed the trust relationship between themselves and the college. Their behaviour also caused the integrity of the college to be negatively affected. Mr. E O Buda failed to show any remorse for committing the misconduct for which he was charged and found to be guilty.
83. At the internal disciplinary hearing of the applicant, he walked out, so-doing, waiving his right to partake in the disciplinary hearing. As per the respondent’s disciplinary code and policies, dismissal was the appropriate sanction in cases where employees were found guilty of gross dereliction of duty and gross dishonesty.
84. Several other lecturers who were found guilty of similar offences, were dismissed. The applicant’s manager, SM Buda, was also found guilty of similar offences at a disciplinary inquiry and dismissed. No employees who are found guilty of similar offences are treated differently to others.
85. Mr. E O Buda was charged for misconduct on 12 March 2019. A disciplinary hearing took place in respect of a misconduct on 04 and 05 April 2019. An investigation was conducted on behalf of the respondent by Mr. Trevor Fredericks between the date of the alleged misconduct and the date when the applicant was charged.
86. Mr. Fredericks reported that there were two other lecturers who had allegedly also not conducted assessments as per the assessment schedule. He instructed Mr. Fredericks to investigate these allegations. During the investigation conducted by Mr. Fredericks, it became evident that Ms. Matlala did not conduct assessments as per the assessment schedule. He had no prior knowledge thereof.
87. He received a report from Mr. Fredericks in respect of Mr. E O Buda. The report confirmed that Mr. E O Buda did not administer the assessment on 19 March 2022. The report further confirmed that Mr. E O Buda was not authorised to not administer the assessment and as such, he proceeded to charge Mr. E O Buda.
88. Mr. E O Buda was only charged for misconduct when the college became aware of the alleged transgressions and after an investigation was conducted into the alleged transgressions. There was insufficient evidence in the investigation report against Mr. Ramahlalerwa, and as a result, no charges were levelled against him. This displays consistency and fairness by the college.
89. The college’s assessment policy provides that the relevant person who is authorised to address any recourse on implementation, is the deputy principal. The deputy principal confirmed that she had not been advised of Mr. E O Buda’s actions, which were contrary to the provisions of the assessment policy. In the interest of the college, as the CEO who was accountable and responsible for the well-being of the college, he then intervened and initiated the disciplinary action against the applicant.
90. The Atteridgeville campus of the TS TVET College took delivery twice in respect of cartridges for the academic year, 2018. A delivery was made on 23 January 2018 and 14 June 2018. According to the entries made in the Control Register for 80A-cartridges, during the period between 30 January 2018 and 26 March 2018, sixteen 80A-cartridges were drawn from the stores by various personnel members. Although highly unlikely, if there were no cartridges on campus when the twenty-five 80A-cartridges were delivered, this meant that there were nine 80A-cartridges available at the stores.
The respondent closed its case.
THE APPLICANT’S CASE
The applicant, Mr. Elias Oupa Buda, testified under oath as follows:
91. He was employed at the TS TVET College as a lecturer in the Department: General Studies, from February 2011 until the date of his dismissal, 17 July 2020. During his employment, the principal of the college was Mr. JT Chiloane.
92. On 12 March 2019, he was issued a charge sheet and notice to attend a disciplinary hearing relating to three charges of misconduct. The charges related to gross dereliction of duty and gross insubordination (charge 1), gross dishonesty (charge 2), and unauthorised absence from duty (charge 3).
93. The first two charges (gross dereliction of duty, gross insubordination, and gross dishonesty) referred to an incident that transpired on 19 and 20 March 2018, while the third charge (unauthorised absence), referred to an incident on 30 November 2018.
94. The disciplinary hearing was conducted on 04 & 05 April 2019, where he was found guilty in respect of charge 1 and 2. He was not found guilty in respect of the third charge of unauthorised absence from duty. The sanction imposed in respect of the guilty finding related to charge 1 and 2 was dismissal and he was duly dismissed on 17 July 2020.
95. The college was scheduled to administer and conduct assessments during the period 14 March 2018 and 19 March 2018. During his preparation for the assessments, he requested a printing cartridge from the stores, but he was advised there were no cartridges available. He requested the storeman to source a cartridge for him, but the storeman was unable to do so. On the morning of 19 March 2018, he went to the stores and requested a cartridge. The storeman advised him that there were no cartridges available.
96. In line with the college’s assessment timetable/schedule, he was required to administer an assessment in respect of Computer Practice Studies (level 6) on 19 March 2018, between 12h00 and 13h30. Due to the lack of available cartridges, he was unable to administer the assessment on 19 March 2018.
97. The assessment was successfully conducted at a later stage, where the final marks were accepted by the college. The students who wrote the assessment later, were given the same assessment paper as the others who had written the assessment earlier.
98. He reported his failure to have administered the assessment on 19 March 2018, to his superior, Ms. Gina Khoza, separately in an email on 20 March 2018, due to the lack of cartridges on campus. He became aware of the lack of cartridges on 14 March 2018. He could not remember when cartridges became available thereafter.
99. He initially reported this to Ms. Khoza verbally. She instructed him to do so in writing, which he did in an email to Ms. Khoza on 20 March 2018 at 08h37. Ms. Khoza responded on the same day at 14h50, advising that she had noted the report sent. There was no further communication between himself as Ms. Khoza in this regard.
100. Under cross examination, he conceded that the reason why he only reported this to Ms. Khoza on 20 March 2018, was because he was unable to get hold of her. He confirmed that he had not obtained any authorisation or permission from anyone to postpone the administering of the assessment that was scheduled for 19 March 2018 at 12h00 to 13h30 in respect of Computer Practice Studies (level 6).
101. He became aware on 19 March 2018, that he was not going to be able to administer the assessment after the storeman had advised him that there were no cartridges available. He was very busy conducting other college activities on 19 March 2018, which further served as a reason for his failure to report on his failure to have administered the assessment on the same day.
102. He did not check with the stores whether there were any cartridges available, between 14 March 2018 and 19 March 2018. He was advised that cartridges could be delivered at any time, hence he did not become alarmed. He could not remember why he failed to report the unavailability of cartridges to his HOD.
103. Several other colleagues were affected by the lack of cartridges on campus and were also unable to conduct assessments as per the assessment schedule. These were: Mr. Mpela. Mr. Mazombuka, Mr. Netshitungulu, Ms. Masemene, Ms. Mashangane, Mr. Ramahlalerwa and Ms. Matlala. These were all lecturers within the field of Computer Studies.
104. These lecturers reported the failure to have conducted assessments due to the lack of cartridges, to the HOD, Mr. S M Buda. Some of the lecturers who reported the lack of cartridges to the HOD, Mr. S M Buda, were charged for misconduct. He did not sign the memo sent by the other lecturers.
105. Mr. Ramahlalerwa and Ms. Matlala were not charged for misconduct. Similarly, he too was not charged. Item 18 of the assessment policy provides that lecturers should report any irregularities. The lecturers acted correctly and in line with the assessment policy. Item 18 of the assessment policy authorises the lecturer to postpone an assessment and to communicate this to the learners. The Deputy Principal was not privy to all the activities in the classrooms and could therefore not postpone any assessments.
106. He testified as a witness during the disciplinary hearing of the HOD, Mr. S M Buda, during 2018/9. He was charged on 12 March 2019, after having testified at the disciplinary hearing of Mr. S M Buda. He was charged for misconduct because he testified at the disciplinary inquiry of Mr. S M Buda. This clearly suggests that the disciplinary proceedings were inconsistently applied by the respondent.
107. In terms of the assessment schedule, he was required to invigilate Computer Practice Studies (level 4) on 14 March 2018 – the responsible lecturer was Ms. Matlala. Despite not having conducted the invigilation session on 14 March 2018, he was not charged for this, which confirmed that the respondent applied its disciplinary processes inconsistently.
108. There are different duties delegated to the responsible lecturer, invigilator, assessor, and moderator, in respect of Formal Assessments: Task 2. The lecturer, who is the examiner, is responsible for the preparation of the assessment. The invigilator is only responsible for the period during which the students are carrying out the writing of the assessment. The assessor and moderator are responsible for finalising of marks after the assessments have been written by the students.
109. In respect of the assessments relating to Computer Practice Studies, it is not possible for a learner’s assessment to be saved on a computer or printed to a flash drive and printed at a later stage, as this would cause the file to become corrupted.
110. The five lecturers who were charged for misconduct were afforded an opportunity to make representations and respond to the charges against them. He was not afforded an opportunity to make any representations in respect of the allegations levelled against him by the respondent.
111. He conceded that he did not administer the assessment on 19 March 2018, the reason for this being that there were no cartridges available and as such, it was impossible to have done so. No alternative instruction was issued by his superiors to address the lack of cartridges on 19 March 2018. The lack of available cartridges on campus started on 14 March 2018 and management was aware of this.
112. The college’s assessment does not provide any policy on how lecturers are expected to obtain printing cartridges from the stores. The practice carried out at the college was that lecturers went to the stores with an empty cartridge and requested the storeman to exchange it for a new cartridge. Lecturers signed for the receipt of new cartridges in the control register. Lecturers were not involved with the procurement process insofar as printing cartridges.
113. On 13 April 2018, the storeman, Mr. R. Malatjie submitted a report to the Deputy CAO: Academic, Ms. Rachel Ntsimane, confirming that no lecturers at the Atteridgeville campus were denied printing cartridges. He was unaware why the storeman submitted a letter in this regard, to Ms. Ntsimane. He confirmed that the Control Register contained an entry on 10 March 2018, where he had signed for a new cartridge. Similarly, Mr. Ramahlalerwa signed for and withdrew an ink cartridge from the stores on 19 March 2018.
114. He acknowledged that he was trained on various college policies and procedures, that he understood these policies and procedures and he understood his implied duties as an employee of the college. He acknowledged that he was required to comply with the policies of the college at all times.
115. He is registered as an educator with the South African Council of Educators (SACE), whose ethical requirements are that educators are required to act honestly at all times. He agreed that dishonesty and poor work performance impacted negatively on a relationship between an employer and employee.
116. He has never received any written or final written warning in respect of any misconduct, prior to the transgressions for which he was charged that related to the incidents on 19 and 20 March 2018. He did not intentionally undermine or disrespect the respondent by reporting that there were no cartridges available on campus.
117. The sanction of dismissal that was meted down by the respondent was not the only sanction available to the respondent. The sanction of dismissal was very harsh. An appropriate sanction in respect of the charges against him, was a warning.
118. He did not apologise to his employer because he was not afforded an opportunity to do so.
The applicant’s second witness, Emmanuel Netshitungulu, testified under oath that:
119. He was employed as a lecturer for eight years at the Atteridgeville campus of the TS TVET College. During the period 14 March 2018 – 19 March 2018, he was the Acting Senior Lecturer: Financial Management. He was conducting assessments during the period when the applicant, Mr. E O Buda, was alleged to have committed acts of misconduct by failing to have conducted assessments in respect of learners as per the assessment schedule.
120. The applicant, Mr. E O Buda, did not report to him. He was not Mr. E O Buda’s line manager. Mr. E O Buda reported to Ms. Gina Khoza, who was the Acting Senior Lecturer: General Studies & NCU. He did not have any communications with Ms. Gina Khoza at any stage.
121. An informal meeting was held during the period 14 – 19 March 2018, relating to printer cartridges. Some lecturers complained that there were no ink cartridges available at the stores. He went to the HOD and reported the issue to her verbally, with the hope that ink cartridges would be made available before the assessment dates. This intervention took place a week prior to the required schedule of assessments. The HOD failed to act on or escalate his verbal report to her.
122. He was unable to conduct the assessment for which he was assigned, due to a lack of cartridges. On 19 March 2018, a memo was sent to the HOD: Department of Business Studies (Nated) to advise thereof. He signed the memo as one of the lecturers who was unable to conduct assessments as per the assessment schedule, due to a lack of printer cartridges.
123. No assessments were conducted from 14 – 19 March 2018, which confirms that there were no ink cartridges available at the Atteridgeville campus at that time. All Computer Studies lecturers were affected by the lack of availability of ink cartridges. The lecturers who were affected were eight in total, being: E Netshitungulu, F. Mpela, P J Masombuko, K G Masemene, K E Mashangwane, Ramahlalerwa, E O Buda and S Matlala.
124. It was not possible for learners’ assessments to be saved and printed at a later stage, as Excel spreadsheets and journals were required to have been posted and updated on an ongoing basis. The learners’ printed scripts were used by assessors to determine the marks obtained by the learner. This suggests that the scripts were required to be printed and not saved so that they could be printed later.
125. The applicant was responsible for conducting assessments in respect of Computer Practice Studies (level 6) between 12h00 – 13h30 on 19 March 2018. He was unable to administer the assessments due to a lack of printer cartridges. He was not aware if the applicant had been granted permission to postpone the assessment that he was required to administer.
126. According to the 80A-Cartridge Control Register, Mr. Ramahlalerwa drew a cartridge from the stores on 19 March 2018. The applicant also went to the stores to draw an ink cartridge. Although he did not see the applicant go to the stores to draw a cartridge on the same day, he is aware that he did so and that he was unable to draw a cartridge, because there were no cartridges available.
127. The report that was sent to Ms. Rachel Ntsimane, the Deputy CAO: Academics, by the storeman, Mr. A Malatji, on 13 April 2018, wherein he confirmed that no lecturers were denied cartridges, is a lie on the part of Mr. Malatji.
128. The applicant was not wrong to have sent an email to Ms. Gina Khoza, advising her of the lack of cartridges. He was following protocol in doing so. Ms. Khoza was fully aware that were problems with the Computer Practice Studies subjects, due to the lack of printer cartridges. She was aware that there were other sections that had lodged complaints about the lack of cartridges.
129. The 80A-Cartridge Control Register was used to record and control the drawing of cartridges from the stores. The procurement of cartridges was not a function of the lecturers. Lecturers were merely required to draw cartridges on a needs basis and sign the register when doing so. Dates contained in the Control Register were not sequentially followed and this register did not serve as an asset register. As such, the availability of cartridges or the stock levels of cartridges could not be ascertained, using the Control Register alone.
130. Eight lecturers were affected by the lack of cartridges during the period for which assessments were required to be conducted. Some lecturers who failed to conduct assessments were not charged for misconduct. He was not sure why only him and the applicant were charged for misconduct relating to the failure to administer or conduct assessments.
131. The applicant was charged separately and at a much later stage, after he had represented other learners at internal disciplinary hearings.
132. Mr. Mpela and Mr. Ramahlalerwa were both required to administer assessments on the 16 March 2018. Both lecturers failed to do so, yet only Mr. Mpela was charged for failing to administer the assessments. Similarly, Ms. Masemene and Ms. Matlala were both expected to administer assessments on the same day and both lecturers failed to do so, yet only Ms. Masemene was charged for misconduct and dismissed. This proves that the respondent acted selectively and inconsistently in applying disciplinary processes.
133. Mr. E O Buda was treated unfairly in terms of the implementation of the assessment policy of the college. He could not have been held responsible for the planning of assessments, especially since the procurement of cartridges was not his responsibility and there was nothing that he could have done to have addressed this.
The applicant’s third witness, Ms. Kgogaelo G Masemene, testified under oath that:
134. She was employed as a lecturer at the Atteridgeville campus of the TS TVET College since 2013. She was dismissed for misconduct, relating to her failure to have administered assessments as per the college’s assessment schedule for the period 14 – 19 March 2018.
135. She was part of the group of lecturers who were unable to obtain cartridges before the week of 14 March 2018 for their day-to-day activities. She was part of the group of lecturers who submitted a memo to the HOD, being a true reflection, advising the HOD on 19 March 2018, that the computer related subjects – task 2, was delayed due to a lack of cartridges, and that these assessments had been postponed to the first week of reopening of the college in April 2018. She drafted the memo that was sent to the HOD.
136. She repeatedly went to the stores in an attempt to draw an ink cartridge, up until 14 March 2018. The storeman, Mr. A Malatji, continually advised her that there were no ink cartridges available. As a result of the lack of ink cartridges, assessments could not be conducted.
137. The process of drawing a cartridge from the store required that a lecturer should return an empty cartridge to the storeman (Mr. A Malatji), complete the Control Register, sign acceptance of a new cartridge, and take the cartridge. The storeman is the only person at the Atteridgeville campus who issued cartridges. Lecturers were not involved in the procurement process of acquiring cartridges.
138. The applicant, Mr. E O Buda, was responsible for conducting assessments during the assessment period of 14 – 19 March 2018. On 14 March 2018, the applicant was required to invigilate Computer Practice Studies (level 4) between 08h30 and 10h00. The subject heads/lecturers for this subject were herself and Ms. A Matlala.
139. The applicant was required to administer an assessment on 19 March 2018, between 12h00 and 13h30, in respect of Computer Practice Studies (level 6). The assessments on 14 and 19 March 2018, could not be conducted due to a lack of printer cartridges. Mr. E O Buda and Ms. Matlala were truthful when they stated that there were no cartridges available on campus.
140. On 19 March 2018, she was required to administer an assessment in respect of Information Processing (level 5) from 08h30 -10h00. She borrowed a cartridge from Mr. Ramahlalerwa in order for her to administer the assessment.
141. The cartridge was taken from computer laboratory B107, where Mr. Ramahlalerwa was invigilating. Mr. Ramahlalerwa was required to conduct NCV assessments on 19 March 2018.
142. On 16 March 2018, Mr. Mpela and Mr. Ramahlalerwa were required to conduct assessments but failed to do so due to a lack of cartridges. Mr. Mpela conducted this assessment on a later date whereafter, he was charged for misconduct and dismissed. Mr. Ramahlalerwa was not charged for misconduct. Mr. E O Buda was not charged at the same time as the other lecturers. He was only charged much later.
143. A printer cartridge generally lasted between 2 – 3 weeks. There was no possibility that a cartridge could last for 3 months. She taught two classes in the morning and the venue was used for other classes in the afternoons.
144. Learners’ assessment information could not be saved or stored on a flash drive and printed later. Part of a learner’s instruction in the exam/assessment was to print a part of the assessment at a certain stage. The assessments were also designed to allow learners a certain time to print specific tasks.
145. Some instructions required learners to print certain pages according to certain instructions (with borders, without headers, etc). This determined the competency of the learner by means of the time taken and accuracy, to complete tasks. Failure to have cartridges available for printing of the assessments, rendered the assessment irregular.
146. Under cross examination, she conceded that learners’ information could be saved and printed later. She did not know why the applicant did not do so.
147. Item 18 of the college’s Assessment Policy deals with irregularities during assessments. There were no provisions contained in the policy that deal with the process of how irregularities should be dealt with. There were no provisions in the policy that guided situations where circumstances did not allow for the administering of assessments. Lecturers used their initiative to “save the situation” in circumstances that were not ideal.
148. Item 22 of the college’s Assessment Policy deals with recourse on implementation. The normal procedure contained in the policy prescribed that any non-conformances should be addressed to the Deputy Principal: Academic. The non-conformances in respect of implementation of assessments were not addressed to the Deputy Principal: Academic, as per the policy. The lecturers addressed their reports of non-conformance to their respective HOD’s, who were expected to forward these to the Deputy Principal: Academic.
149. Under cross examination she conceded that the applicant failed to comply with the college’s Assessment Policy by rescheduling the assessments at a later date. She acknowledged that the applicant’s conduct suggested that he failed to carry out his duties and responsibilities diligently.
The applicant closed its case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
150. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
151. Section 188 of the LRA provides that a dismissal is deemed to be unfair if the employer fails to prove that the reason for dismissal is for a fair reason, related to the employee’s conduct.
152. Dismissal was not in dispute and as per the provisions of section 192 of the LRA, the onus of proof was on the respondent to prove on a balance of probabilities that the applicant’s dismissal was substantively fair.
153. At the commencement of the hearing, the issues in dispute were narrowed. The procedural fairness of the dismissal was not disputed. The issues in dispute in respect of the substantive fairness related to whether the applicant breached the rules, whether the respondent applied the rule consistently and whether dismissal was the appropriate sanction.
154. In Sidumo and Another v Rustenburg Platinum Mines Ltd & Others [2007] 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC) the Court held that in arriving at a decision, a commissioner is not required to defer to the decision of the employer but that it should consider all the relevant factors and circumstances. Amongst the factors relevant to the determination of fairness are:
 The importance of the rule that was breached.
 The reasons for establishing the rule including its reasonableness.
 The harm caused by the employee’s conduct.
 The impact that it had on the trust relationship.
 The effect of setting a precedent.
 The reason why the employer imposed the sanction of dismissal.
 The basis of the employee’s challenge to the dismissal.
 Whether additional training and instruction may result in the employee not repeating the misconduct.
155. The first charge against the applicant, Mr. E O Buda, relates to gross dereliction of duty, in that without permission or authorisation, he failed to carry out a duty that was entrusted to him on 19 March 2018, being that he failed to administer a formal assessment, that was contained in the respondent’s Common Assessment Timetable.
156. That the applicant failed to administer the said assessment on 19 March 2018, was evident and undisputed. The respondent’s witnesses all testified to this and in his own testimony, the applicant confirmed that he failed to administer the assessment in respect of Computer Practice Studies (level 6) on 19 March 2018, between 12h00 and 13h30.
157. This confirms that the applicant failed to administer the assessment as per charge 1. I am required to establish whether the applicant was authorised to do so, or whether he was granted permission to do so.
158. In a letter to the principal of the college, dated 16 April 2018, the applicant’s HOD, Mr. SM Buda, confirmed that he did not authorise the postponement of any tests. The applicant was not authorised to postpone any assessments unless such authorisation was provided by the deputy principal.
159. The college’s principal led evidence that the college’s assessment policy provides that the relevant person authorised to address any recourse on implementation, is the deputy principal. He testified that the deputy principal confirmed that she had not been advised of Mr. E O Buda’s actions, which were contrary to the provisions of the assessment policy.
160. The applicant’s direct supervisor, Ms. Gina Khoza, testified that she had only been informed on the following day, of the applicant’s failure on 19 March 2018, to conduct the required assessment. She had not granted him any permission to do so, especially since this authority was only vested in the deputy principal, who, according to her, had not authorised such a postponement. The applicant was not authorised to postpone the assessments of his own accord.
161. The respondent’s first witness, Mr. Trevor Fredericks, testified that he conducted induction training in 2013 in respect of the respondent’s assessment policy, where the applicant was in attendance. The applicant acknowledged that he was trained on various college policies and procedures, he understood these policies and procedures and he understood his implied duties as an employee of the college. He conceded that he was required to comply with the policies of the college at all times.
162. The applicant confirmed the testimony of the principal, Mr. JT Chiloane, that the college was “policy driven” and a “creature of statute”. He confirmed that he was well versed with the respondent’s Assessment Policy and that he understood the prescripts, policies and guidelines contained therein.
163. Both Mr. Netshitungulu and Ms. Masemene testified that they were not aware of any permission or authorisation having been granted to the applicant, to postpone the assessment on the 19 March 2018. Ms. Masemene conceded that the applicant had failed to comply with the provisions of the assessment policy and that he failed to carry out his duties diligently.
164. Under cross examination, the applicant confirmed that he had not obtained any authorisation or permission from anyone to postpone the administering of the assessment that was scheduled for 19 March 2018 at 12h00 to 13h30 in respect of Computer Practice Studies (level 6).
165. The applicant testified that although he had not been granted the authority to postpone the assessment, he was authorised to postpone an assessment by virtue of the provisions of item 18 of the respondent’s Assessment Policy. Item 18 provides that, “All irregularities of assessments must be recorded in the irregularity register kept in the office of the Heads of Departments”.
166. Having considered the provisions of item 18, this does not grant a lecturer the authority to postpone an assessment. No other similar inference can be reasonably drawn in respect of the granting of authority, from item 18 of the policy.
167. Having considered the aforesaid, on a balance of probabilities, the applicant was guilty of gross dereliction of duty and gross insubordination, in that he failed to administer the assessment entrusted to him on 19 March 2018, without any authorisation or permission.
168. The second charge of misconduct in respect of gross dishonesty, related to the applicant submitting an email to his supervisor, claiming that he was unable to conduct the assessment entrusted to him on 19 March 2018, due to the campus not having any ink cartridges – an allegation which the respondent claimed was false.
169. The applicant relied heavily on emails, memos, and reports to supervisors and HOD’s to suggest that there were no cartridges at the Atteridgeville campus between 14 March 2018 and 19 March 2018. The applicant, Mr. Netshitungulu and Ms. Masemene, all led oral evidence that they were unable to conduct assessments due to no availability of cartridges.
170. Despite the applicant’s reliance on correspondence that proved that he and several other lecturers had submitted these to their superiors to suggest that they were unable to conduct assessments due to no cartridges being available, no evidence was led to prove that this theory existed.
171. None of the submitted emails, reports and memorandums were carried out prior to the administering of the assessments, as required by the respondent’s assessment policy. The failure by Mr. E O Buda, Mr. Netshitungulu and Ms. Masemene to have followed the assessment policy by not reporting the “assessment irregularities”, does not suggest that there were no cartridges at the Atteridgeville campus of the TS TVET College – it merely suggests that the assessment policy was not complied with.
172. The respondent’s second witness, Ms. Hilda Nomsa Mathye, testified that an inspection into the records of the campus and a physical inspection of the storeroom confirmed that there were cartridges available during the period for which lecturers were required to conduct assessments. This testimony was not challenged.
173. Ms. Gina Khoza testified that she was required to conduct assessments in respect of NCV: Data Processing – level 3 & 4, on 19 March 2019, which she carried out successfully. She also testified that Mr. Ramahlalerwa, who was required to administer the assessment NCV: Data Processing – level 2, also managed to successfully administer his NCV assessments.
174. Mr. Tshilidzi Libago, an IT Support Technician at TS TVET College, testified that, based on his experiences at the TS TVET College, as well as other colleges where he worked, fifty A80 cartridges were sufficient to last for more than a year. One cartridge of toner would last for approximately 2 months at each of the computer laboratories.
175. The Deputy Principal of the college and erstwhile Procurement Manager, Mr. Goodman Mnisi, confirmed the existence of two delivery notes in respect of printer cartridges received by the Atteridgeville campus of the TS TVET College.
176. The delivery note on 23 January 2018, confirmed that twenty-five A80 cartridges were delivered to the Atteridgeville campus by Macs Office Supplies and a second delivery note on 14 June 2018, confirmed that a further fifty A80 cartridges were delivered to the campus by Oligex Business Solutions.
177. Both Mr. Goodman and Mr. Libago testified that the cartridges delivered under the two delivery notes were sufficient to meet the printing needs of the campus for an entire year.
178. The applicant testified that on 13 April 2018, the storeman, Mr. R. Malatjie submitted a report to the Deputy CAO: Academic, Ms. Rachel Ntsimane, confirming that no lecturers at the Atteridgeville campus were denied printing cartridges.
179. In line with the entries made in the Control Register for 80A-cartridges, the applicant confirmed that he collected an 80A-cartridge from the stores on 10 March 2018. He testified that an entry contained in the Control Register, confirmed that Mr. Ramahlalerwa collected an 80-A cartridge from the stores on 19 March 2018.
180. Ms. Masemene confirmed the existence of a cartridge on campus on 19 March 2018, testifying that she had borrowed a cartridge from Mr. Ramahlalerwa, in order to conduct an assessment that she was entrusted to administer, on 19 March 2018.
181. She testified that the cartridge was borrowed from computer laboratory B107 and used at venue B109. The applicant testified earlier that he was required to administer the assessment on 19 March 2018 at computer laboratory B107, inferring that there was an ink cartridge available at the laboratory where he was entrusted to administer an assessment.
181. Considering the aforesaid, on a balance of probabilities, the claim by the applicant that there were no ink cartridges at the Atteridgeville campus of the TS TVET College, is highly improbable and I am persuaded that applicant did breach the rule in respect of charge 2.
182. Although immaterial due to my finding above that ink cartridges were available on the Atteridgeville campus, the applicant, Ms. Masemene and Mr. Netshitungulu, all testified that it was not possible for learners’ completed assessments to be saved on a computer or on a flash drive and printed at a later stage. Despite the immateriality thereof, as this was raised and extensively canvassed, I shall deal with the issue.
183. The testimony led by the witnesses suggested that because learners were required to print certain tasks at certain times during the assessment, the learners’ assessment answer sheets or information, could not be saved onto a computer or a flash drive.
184. The applicant’s supervisor and senior lecturer, Ms Gina Khoza, testified that in the absence of an ink cartridge, learners’ assessments could be saved and printed later. This view was supported by the IT Support Technician of the college, Mr. Tshilidzi Libago. Under cross examination, Ms. Masemene conceded that it was possible to save learners’ assessments and print these at a later stage.
185. In leading evidence, the applicant referred to two learners’ Assessment: Task 2: Answer Sheets (Bundle A: pg. 74 – 86 and pg. 87 – 97) in respect of Computerised Financial Systems (level N4). These scripts appear to have been marked manually, after having been saved and printed. These assessments were not marked online, where “snapshots” of certain tasks were marked. These assessments were marked after the learners completed their assessments, printed the documents to a hard copy and submitted these for assessment.
186. This infers that there is no reason to suggest that the learners’ completed assessments (scripts) could not have been saved, whether to a computer or a flash drive, and printed at a later stage for assessment. On a balance of probabilities, the applicant’s version that learners’ completed assessments could not be saved and printed at a later stage, appears to be highly improbable.
187. Despite the procedural fairness of the dismissal not being in dispute, which does not require me to make a determination thereupon, the applicant suggested that the respondent failed to allow him an opportunity to make representations in order for his case to be considered.
188. In the well-known judgment of Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 1644 (LC), the Labour Court found that the LRA contemplates an informal, expeditious disciplinary process requiring, in essence, nothing more than a dialogue and an opportunity for reflection before a decision is taken to dismiss an employee.
189. Guided by the authority above, the applicant’s rights were not violated – he was investigated and charged for misconduct. He was afforded an opportunity to answer to the charges at the internal disciplinary hearing, which he allegedly waived, by choosing to walk out of the hearing.
190. Evidence was led by both parties to suggest that several lecturers were dismissed for failing to administer assessments, without the proper authorisation and permission to do so. Although I am not required at these proceedings, to determine whether the dismissal of these lecturers was fair, I am required to determine whether the applicant applied the rule consistently.
191. In doing so, I considered the evidence led by the respondent, that Mr. S M Buda was dismissed for a similar offence and that Mr. Ramahlalerwa was granted permission to postpone the assessment with which he was entrusted, due to a clash in the assessment schedule.
192. The applicant was not charged for failing to administer the assessment on 14 March 2018, as he was not the subject head or lecturer for that subject. This was the responsibility of Ms. Masemene and Ms. Matlala and as such, he could not have been charged with the responsibility of other lecturers.
193. The lecturers who failed to administer assessments as per the respondent’s Common Assessment Schedule, were found guilty and dismissed for similar charges to that of the applicant.
194. Having considered the aforesaid, on a balance of probabilities, I am convinced that the respondent acted consistently in the application of the rule for which the applicant was dismissed.
195. The principal testified that the employment relationship between the respondent and the applicant was irreparably severed, insofar as the conduct of the applicant in respect of his gross dereliction of duty, gross insubordination, and gross dishonesty. The applicant walked out of his disciplinary hearing and failed to show any remorse for his conduct.
196. The applicant acknowledged that he was trained on various college policies and procedures, he understood these policies and procedures and he understood his implied duties as an employee of the college. He conceded that he was required to comply with the policies of the college at all times.
197. He is registered as an educator with the South African Council of Educators (SACE), whose ethical requirements are that educators are required to act honestly at all times. He agreed that dishonesty and poor work performance impacted negatively on a relationship between an employer and employee.
198. The applicant’s actions are contrary to the tenets that an employee is expected to comply with in his/her contractual duties by: (1) tendering his/her services, (2) performing his/her work diligently and competently, (3) obeying lawful instructions and (4), serving the employer’s interests and acting in good faith. This was confirmed in Council for Scientific and Industrial Research v Fijen (1996) 17 ILJ 18 (A) at 260 D-E.
199. The applicant was charged with misconduct as defined in Annexure A, Schedule 1 of the Disciplinary Code and Procedure, in terms of Resolution 1 of 2003. The disciplinary code suggests that dismissal is an appropriate sanction where employees are found guilty in respect of charges relating to gross dereliction of duty, gross insubordination, and gross dishonesty.
200. For years, jurisprudence has been divided on whether, in order to justify a sanction of dismissal, an employer must lead evidence to show that the employment relationship has been rendered intolerable. In the matter of Impala Platinum Limited v Zirk Bernardus Jansen & Others (JA100/14), the Labour Appeal Court (“LAC”) finally and unequivocally dispelled the myth that this is necessary, which has plagued the labour law fraternity since the Supreme Court of Appeal (“SCA”) handed down judgment in Edcon v Pillemer & Others [2010] 1 BLLR 1.
201. In order to justify a sanction of dismissal, an employer must lead evidence to show that the employment relationship has been rendered intolerable. In the matter of Impala Platinum Limited v Zirk Bernardus Jansen & Others (JA100/14), the Labour Appeal Court (“LAC”) held that this is necessary, which has plagued the labour law fraternity since the Supreme Court of Appeal (“SCA”) handed down judgment in Edcon v Pillemer & Others [2010] 1 BLLR 1.
202. In this matter, through the testimony of the principal, Mr. JT Chiloane, and the applicant’s reference to the ethical requirements and considerations prescribed by the South African Council of Educators (SACE), on a balance of probabilities, I am persuaded that the respondent has discharged the burden of proof to suggest that its employment relationship with the applicant is irreparable and intolerable, strengthened by the lack of any evidence or submissions presented by the applicant to show that he was remorseful for his conduct.
203. In Roscher v Industrial Development Corporation and others (2018) 39 ILJ 2489 (LAC), the Court held that the employee’s conduct amounted to deliberate deception and her failure to apprise her employer of the true nature of a required commitment was serious misconduct, gross dishonesty, and a breach of her fiduciary duty. She lacked the judgement and could not be trusted to act appropriately in the best interests of her employer. In this matter, I am persuaded that Mr. E O Buda’s conduct appears to be deceptive and amounts to serious misconduct, gross dishonesty, and a breach of his fiduciary duty.
204. I am further persuaded that the respondent has applied the appropriate sanction, being that of dismissal, in respect of Annexure A, Schedule 1 of the Disciplinary Code and Procedure, in terms of Resolution 1 of 2003.
205. Having considered the submissions and evidence led by the parties, guided by the application of case law above, on a balance of probabilities, I am satisfied that the dismissal of the applicant by the respondent was substantively fair.


AWARD
1. The applicant’s dismissal was substantively fair.
2. The dismissal of the applicant by the respondent is upheld.

George Georghiades
ELRC Dispute Resolution Panellist