PSES115-18/19WC
Text
ELRC429-20/21
Award Date:
30 March 2022
Commissioner: NZWISISAI L DANDADZI
Case No.: ELRC429-20/21
Date of Award: 30 March 2022
In the MATTER between:
PSA obo MATLALA TD
(Union / Applicant)
and
WESTCOL TVET COLLEGE
(Respondent )
DETAILS OF HEARING AND REPRESENTATION
1. The Arbitration was scheduled for hearing at the Westcol TVet College over a period of four days. The last hearing date was 28 February 2022. The Applicant was represented by Mr Bradley Benson, a union official from trade union PSA and the Respondent was represented by an Attorney Mr Bongani Khoza of Khoza Geffen Incorporated Attorneys. The proceedings were recorded both manually and electronically. The Applicant submitted her closing arguments on 10 March 2022 and the Respondent submitted its closing arguments on 17 March 2022. I therefore finalised this arbitration award pursuant to receiving the Respondent’s closing arguments.
2. The Applicant referred a dispute to the Education Labour Relation Council (The Council) on the basis that she had been unfairly dismissed by the Respondent on allegations of misconduct.
ISSUE TO BE DECIDED
3. I must determine whether the dismissal of the Applicant by the Respondent on 29 October 2020 was substantively fair. Procedural fairness of the dismissal was not placed in dispute.
BACKGROUND
4. The parties submitted their respective bundles of documents, the Applicant’s bundle was marked bundle A and the Respondent’s bundle was marked bundle R. The Applicant was employed by the Respondent as a PL1 Lecture designated at the Student Support Department and earned a monthly salary of R25 395,50 at the time of her dismissal.
5. The Applicant was charged and found guilty and subsequently dismissed on allegations that she had improperly conducted herself in that she had forced staff to attend a meeting that was not properly constituted in terms of Resolution 3 of 2014 of the GPSSBC. The Applicant faced further charges of improper conduct in that it was alleged that she had improperly disrupted teaching on 16 August 2018 by ordering students to leave the classes in order that the educators attend the meeting. The Applicant faced further charges of intimidation alternatively victimization of her colleagues, Mrs Coetzee and Mrs Durant by forcing them to attend the meeting.
6. The Applicant stated that she would like to be retrospectively reinstated by the Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
7. Below is a summary of the evidence that was adduced at the hearing, The written and electronic recordings will reflect the complete record of the witnesses’ evidence.
The Respondent’s Evidence
8. The Respondent called four witnesses to testify in its case.
9. The first witness called by the Respondent was Mrs Joanna Christina Coetzee who is employed by the Respondent as a lecture at the Respondent’s Randfontein campus. The witness has been employed by the Respondent since 1987. The witness testified that on 16 August 2018 while she was teaching her students, she heard loud banging on the door, the Applicant came into her class thereafter and started banging on her desk and shouting telling her that there was a meeting at corporate office and the students must go home. The witness testified that she advised the Applicant that she was not aware of any meeting and she contacted Mrs De Klerk who confirmed that there was no scheduled meeting. The witness testified that she was terrified and angered by the Applicant’s conduct and she could not continue with teaching as the students had been terrified and had left. It was further testified that the witness contacted her line manager and then went to the corporate office to sign the attendance register with members of her union to confirm that they had been chased out of their classes. The witness testified that the Applicant also intimidated Mrs Grobler as she as a result of the incident resigned as she had a medical condition. The witness testified that she felt that there was disruption of the workplace on the day and she felt abused by the conduct as the Applicant did not have the authority to bang on her table as she had done.
10. Under cross examination the witness testified that she had gone upstairs to her line manager to sign the attendance register that she would not be attending the meeting and they sat until the close of the working day as the students had already left.
11. Mrs Mandi De Klerk testified that she was employed by the Respondent as an education specialist at Westcol Randfontein campus. The witness testified when there is a campus meeting, it is called by the campus manager and if there is a divisional meeting, it is called by her. She stated that on 16 August 2018 she was told that there was a meeting, however she did not know anything about it as it was not a scheduled meeting. She testified that there was something at Krugersdorp Campus and her staff were told to go to the meeting, however the meeting was not authorised. The witness testified that Mrs Grobler had told her that the Applicant had spoken to her in an African language that she did not understand and had also told her that she did not care that she did not understand. The witness testified that report that she had signed off was in relation to what the Applicant and Mr Moshobane had done on campus when they told staff members to leave the campus. The witness testified that she was not aware of the person who had chaired the meeting at corporate office.
12. Mr Malesela Phaka testified that at the time of the incident he was the Deputy Principal Corporate Services, responsible for inter alia IT and Human Resources and Labour Relations. The witness testified that when an employee is disgruntled or dissatisfied they can lodge a grievance, however Ms Matlala had not lodged a grievance with the Respondent or the Bargaining Council. The witness testified that the Applicant improperly conducted herself by forcing staff members to attend a meeting at corporate office and such meeting had not been organised in terms of resolution 3 of 2014 and as a result disrupted teaching and learning which conduct was not permitted. The witness testified that the Applicant intimidated Mrs Coetzee and Mrs Du Rante and as a shop steward she should be aware of conduct that is permissible . The witness testified that there was a breach of clause 5.1 and 5.2 of the resolution 3 of 2014 in that there was disruption of teaching and learning and no notice of the meeting had been given to management.
13. Under cross examination the witness testified that he had chaired the meeting as he got to corporate office, he found staff members arriving from Randfontein Campus and he asked why staff members were not at their workstations. The witness testified that he had not seen anyone being intimidated but had received a report of the alleged intimidation. The witness testified that there was no authorisation for a NAPTOSA meeting, however NAPTOSA had held a meeting in response to the events that had occurred on the day.
14. Mrs Marita Grobler testified that she was a former lecturer at the Respondent’s Randfontein campus and she knew the Applicant as a colleague in student affairs during the time she was employed by the Respondent. The witness testified that during one of the strikes the Applicant came to her class and instructed her to leave to attend a meeting. The witness testified that she did not find it out of the ordinary that the Applicant told her to leave the class. Pursuant thereto the witness went to her Head of Department to ask here where to sign as she never left the workplace without asking the Head of Department or signing out. The witness testified that the Applicant was not her superior, however she had been friendly towards her and further that she does not get intimidated easily as she had become used to being handled in such a manner. The witness stated that she had not received any notification of a meeting from the Head of Department.
15. Under cross examination the witness testified that she had no students in her class and did not have to chase any students away as there was no teaching and learning in her class. The witness stated that she thought that there was no teaching and learning, however she did not go to the meeting. The witness agreed that she had gone to the NAPTOSA meeting as she had signed the register but she did not remember the details.
The Applicant’s Evidence
16. The Applicant Ms Matlala testified that she was employed by the Respondent in Student Support Services. She testified that on 16 August 2018 at about 7:45am she received call Chamana who was stationed at Krugersdorp campus and he advised her that they were coming to corporate office as staff wanted to engage management on the commencement of classes. Mr Mashobane also came in and advised her that he had also received a call from Chamana and decided to inform members of staff regarding what was happening and thereafter she went to corporate office where she found other Randfontein staff members and Krugersdorp staff members and senior staff members such as the Chief Financial officer were also present at the meeting p and after the meeting the staff went home. The witness testified that she did not arrange a meeting, she attended a meeting on the day.
17. The witness testified that she did not disrupt teaching and learning as there was not teaching and learning on the day as there was a strike as was testified by Mrs Grobler. The witness testified that there were no students in the classes on the day. The witness also testified that there was no truth in charge 3 as she had not intimidated or shouted at anyone. The witness testified that no evidence had been leas regarding resolution 3 of 2014 at the hearing.
18. The witness testified that the meeting that had taken place and chaired by Mr Phaka was about the commencement of classes and that classes did not take place when there was a strike.
19. Under cross examination, the witness testified that she had not received an invitation to attend the meeting that happened on 16 August 2018 as it related to another campus. The witness testified that the charges against her were not about attending a meeting. The witness denied that she had disrupted teaching and learning on the day, as there was no teaching and learning that took place on the day. The witness denied that she had forced anyone to attend a meeting, anyone who went on their own free will. Th witness also stated that she was of the view that her dismissal was targeted pursuant an investigation and report in which she and Mr Moshabane were witnesses against the former Principal, Mr Coetzee.
20. Mr Mashobane testified that he and the Applicant had been charged for the incident that took place on 16 August 2018 after receiving a call and disseminating a message to staff to attend a meeting at Corporate Office. the witness testified that Mrs Coetzee was not intimidated as it was merely a request to attend the meeting that had been arranged by Krugersdorp Campus as there was no teaching and learning as a result of the strike.
21. Under cross examination the witness testified that they had no authority to stop work and the people they had told to leave their duties were not their subordinates. The witness testified that the meeting that had taken place was not a union meeting but a management meeting.
22. Mrs Ben testified that on the day in question she went in to campus as the students were outside, the principal’s wife, Ms Coetzee made her sign a NAPTOSA register. The witness testified that she was not forced to attend a meeting and there were no lecturers.
ANALYSIS OF EVIDENCE AND ARGUMENT
23. A dismissal must always be for a fair reason. The Applicant faced four charges in total ranging from improper conduct in that she had breached Resolution 3 of 2014, disruption of teaching and learning, intimidation alternatively victimisation of colleagues.
24. On my analysis of the case, there was no evidence led to substantiate the meeting held was trade union meeting as envisaged under resolution 3 of 2014. The meeting indeed was not sanctioned by management as per unchallenged testimony by Mr Phaka that he had found staff members congregated at the premises and proceeded to chair the meeting. While it is common cause that the Applicant was a shop steward, I am of the view that the Applicant did not breach Resolution 3 of 2014 in that she did not call a meeting as envisaged under clause 4 of the Resolution, and no evidence was led to suggest that the meeting that took place was a trade union meeting.
25. The Applicant faced further charges of intimidation alternatively victimisation of colleagues Mrs Coetzee and Mrs Du Rante that the Applicant had banged on doors and Mrs Coetzee’s desk instructing her to leave class and attend the meeting. It was Mrs Coetzee’s unchallenged evidence that they were busy with teaching and learning when the Applicant intimidated her and demanded that she leaves what she was doing and go to the meeting. Mrs Grobler testified that on the day in question she was in her class and was not teaching students as there was a strike. The fact that there was a students’ strike is not in dispute, however absent a challenge of Mrs Coetzee evidence that she was teaching and that the Applicant’s conduct disrupted teaching and learning, It was put to Mrs Coetzee under cross examination how she knew it was the Applicant who was banging on the door, it was not disputed that there had been banging on the door, therefore a logical inference can be drawn that if there is banging on the door and then the Applicant enters soon thereafter, she would have been the one banging on the door. Mrs Grobler testified that she was not a person easily intimidated and she was used to being “handled in that way”. Her testimony suggests some form of intimidation, however I accept that she did not feel intimidated, therefore the testimony by Mrs Coetzee that she felt intimidated by the Applicant’s conduct is in my view not far-fetched.
26. The Applicant argued that because the witnesses did not attend the meeting, they could not have been intimidated by the Applicant. The Labour Appeal Court in Adcock Ingram Critical Care v CCMA & others (2001) 22 ILJ 1799 (LAC) considered not only that the employee in that instance had been aware of the meaning that would be attached to his words but also the context in which they had been uttered. I am inclined to accept that Applicant in her conduct intimidated her colleagues and disrupted teaching and learning because as a result of the Applicant’s conduct the students in Mrs Coetzee’s class left and Mrs Coetzee went to find out why she was required to a meeting she had received no invitation for. Intimidation is a very serious issue in the workplace and a sanction of dismissal for acts of intimidation is not in my view a harsh sanction.
AWARD
27. I find that the dismissal of the Applicant TD Matlala was substantively fair.
28. The referral is dismissed.
DATED AT JOHANNESBURG ON THIS 30th day of March 2022.
NL Dandadzi
CCMA Commissioner
Case No.: ELRC429-20/21
Date of Award: 30 March 2022
In the MATTER between:
PSA obo MATLALA TD
(Union / Applicant)
and
WESTCOL TVET COLLEGE
(Respondent )
DETAILS OF HEARING AND REPRESENTATION
1. The Arbitration was scheduled for hearing at the Westcol TVet College over a period of four days. The last hearing date was 28 February 2022. The Applicant was represented by Mr Bradley Benson, a union official from trade union PSA and the Respondent was represented by an Attorney Mr Bongani Khoza of Khoza Geffen Incorporated Attorneys. The proceedings were recorded both manually and electronically. The Applicant submitted her closing arguments on 10 March 2022 and the Respondent submitted its closing arguments on 17 March 2022. I therefore finalised this arbitration award pursuant to receiving the Respondent’s closing arguments.
2. The Applicant referred a dispute to the Education Labour Relation Council (The Council) on the basis that she had been unfairly dismissed by the Respondent on allegations of misconduct.
ISSUE TO BE DECIDED
3. I must determine whether the dismissal of the Applicant by the Respondent on 29 October 2020 was substantively fair. Procedural fairness of the dismissal was not placed in dispute.
BACKGROUND
4. The parties submitted their respective bundles of documents, the Applicant’s bundle was marked bundle A and the Respondent’s bundle was marked bundle R. The Applicant was employed by the Respondent as a PL1 Lecture designated at the Student Support Department and earned a monthly salary of R25 395,50 at the time of her dismissal.
5. The Applicant was charged and found guilty and subsequently dismissed on allegations that she had improperly conducted herself in that she had forced staff to attend a meeting that was not properly constituted in terms of Resolution 3 of 2014 of the GPSSBC. The Applicant faced further charges of improper conduct in that it was alleged that she had improperly disrupted teaching on 16 August 2018 by ordering students to leave the classes in order that the educators attend the meeting. The Applicant faced further charges of intimidation alternatively victimization of her colleagues, Mrs Coetzee and Mrs Durant by forcing them to attend the meeting.
6. The Applicant stated that she would like to be retrospectively reinstated by the Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
7. Below is a summary of the evidence that was adduced at the hearing, The written and electronic recordings will reflect the complete record of the witnesses’ evidence.
The Respondent’s Evidence
8. The Respondent called four witnesses to testify in its case.
9. The first witness called by the Respondent was Mrs Joanna Christina Coetzee who is employed by the Respondent as a lecture at the Respondent’s Randfontein campus. The witness has been employed by the Respondent since 1987. The witness testified that on 16 August 2018 while she was teaching her students, she heard loud banging on the door, the Applicant came into her class thereafter and started banging on her desk and shouting telling her that there was a meeting at corporate office and the students must go home. The witness testified that she advised the Applicant that she was not aware of any meeting and she contacted Mrs De Klerk who confirmed that there was no scheduled meeting. The witness testified that she was terrified and angered by the Applicant’s conduct and she could not continue with teaching as the students had been terrified and had left. It was further testified that the witness contacted her line manager and then went to the corporate office to sign the attendance register with members of her union to confirm that they had been chased out of their classes. The witness testified that the Applicant also intimidated Mrs Grobler as she as a result of the incident resigned as she had a medical condition. The witness testified that she felt that there was disruption of the workplace on the day and she felt abused by the conduct as the Applicant did not have the authority to bang on her table as she had done.
10. Under cross examination the witness testified that she had gone upstairs to her line manager to sign the attendance register that she would not be attending the meeting and they sat until the close of the working day as the students had already left.
11. Mrs Mandi De Klerk testified that she was employed by the Respondent as an education specialist at Westcol Randfontein campus. The witness testified when there is a campus meeting, it is called by the campus manager and if there is a divisional meeting, it is called by her. She stated that on 16 August 2018 she was told that there was a meeting, however she did not know anything about it as it was not a scheduled meeting. She testified that there was something at Krugersdorp Campus and her staff were told to go to the meeting, however the meeting was not authorised. The witness testified that Mrs Grobler had told her that the Applicant had spoken to her in an African language that she did not understand and had also told her that she did not care that she did not understand. The witness testified that report that she had signed off was in relation to what the Applicant and Mr Moshobane had done on campus when they told staff members to leave the campus. The witness testified that she was not aware of the person who had chaired the meeting at corporate office.
12. Mr Malesela Phaka testified that at the time of the incident he was the Deputy Principal Corporate Services, responsible for inter alia IT and Human Resources and Labour Relations. The witness testified that when an employee is disgruntled or dissatisfied they can lodge a grievance, however Ms Matlala had not lodged a grievance with the Respondent or the Bargaining Council. The witness testified that the Applicant improperly conducted herself by forcing staff members to attend a meeting at corporate office and such meeting had not been organised in terms of resolution 3 of 2014 and as a result disrupted teaching and learning which conduct was not permitted. The witness testified that the Applicant intimidated Mrs Coetzee and Mrs Du Rante and as a shop steward she should be aware of conduct that is permissible . The witness testified that there was a breach of clause 5.1 and 5.2 of the resolution 3 of 2014 in that there was disruption of teaching and learning and no notice of the meeting had been given to management.
13. Under cross examination the witness testified that he had chaired the meeting as he got to corporate office, he found staff members arriving from Randfontein Campus and he asked why staff members were not at their workstations. The witness testified that he had not seen anyone being intimidated but had received a report of the alleged intimidation. The witness testified that there was no authorisation for a NAPTOSA meeting, however NAPTOSA had held a meeting in response to the events that had occurred on the day.
14. Mrs Marita Grobler testified that she was a former lecturer at the Respondent’s Randfontein campus and she knew the Applicant as a colleague in student affairs during the time she was employed by the Respondent. The witness testified that during one of the strikes the Applicant came to her class and instructed her to leave to attend a meeting. The witness testified that she did not find it out of the ordinary that the Applicant told her to leave the class. Pursuant thereto the witness went to her Head of Department to ask here where to sign as she never left the workplace without asking the Head of Department or signing out. The witness testified that the Applicant was not her superior, however she had been friendly towards her and further that she does not get intimidated easily as she had become used to being handled in such a manner. The witness stated that she had not received any notification of a meeting from the Head of Department.
15. Under cross examination the witness testified that she had no students in her class and did not have to chase any students away as there was no teaching and learning in her class. The witness stated that she thought that there was no teaching and learning, however she did not go to the meeting. The witness agreed that she had gone to the NAPTOSA meeting as she had signed the register but she did not remember the details.
The Applicant’s Evidence
16. The Applicant Ms Matlala testified that she was employed by the Respondent in Student Support Services. She testified that on 16 August 2018 at about 7:45am she received call Chamana who was stationed at Krugersdorp campus and he advised her that they were coming to corporate office as staff wanted to engage management on the commencement of classes. Mr Mashobane also came in and advised her that he had also received a call from Chamana and decided to inform members of staff regarding what was happening and thereafter she went to corporate office where she found other Randfontein staff members and Krugersdorp staff members and senior staff members such as the Chief Financial officer were also present at the meeting p and after the meeting the staff went home. The witness testified that she did not arrange a meeting, she attended a meeting on the day.
17. The witness testified that she did not disrupt teaching and learning as there was not teaching and learning on the day as there was a strike as was testified by Mrs Grobler. The witness testified that there were no students in the classes on the day. The witness also testified that there was no truth in charge 3 as she had not intimidated or shouted at anyone. The witness testified that no evidence had been leas regarding resolution 3 of 2014 at the hearing.
18. The witness testified that the meeting that had taken place and chaired by Mr Phaka was about the commencement of classes and that classes did not take place when there was a strike.
19. Under cross examination, the witness testified that she had not received an invitation to attend the meeting that happened on 16 August 2018 as it related to another campus. The witness testified that the charges against her were not about attending a meeting. The witness denied that she had disrupted teaching and learning on the day, as there was no teaching and learning that took place on the day. The witness denied that she had forced anyone to attend a meeting, anyone who went on their own free will. Th witness also stated that she was of the view that her dismissal was targeted pursuant an investigation and report in which she and Mr Moshabane were witnesses against the former Principal, Mr Coetzee.
20. Mr Mashobane testified that he and the Applicant had been charged for the incident that took place on 16 August 2018 after receiving a call and disseminating a message to staff to attend a meeting at Corporate Office. the witness testified that Mrs Coetzee was not intimidated as it was merely a request to attend the meeting that had been arranged by Krugersdorp Campus as there was no teaching and learning as a result of the strike.
21. Under cross examination the witness testified that they had no authority to stop work and the people they had told to leave their duties were not their subordinates. The witness testified that the meeting that had taken place was not a union meeting but a management meeting.
22. Mrs Ben testified that on the day in question she went in to campus as the students were outside, the principal’s wife, Ms Coetzee made her sign a NAPTOSA register. The witness testified that she was not forced to attend a meeting and there were no lecturers.
ANALYSIS OF EVIDENCE AND ARGUMENT
23. A dismissal must always be for a fair reason. The Applicant faced four charges in total ranging from improper conduct in that she had breached Resolution 3 of 2014, disruption of teaching and learning, intimidation alternatively victimisation of colleagues.
24. On my analysis of the case, there was no evidence led to substantiate the meeting held was trade union meeting as envisaged under resolution 3 of 2014. The meeting indeed was not sanctioned by management as per unchallenged testimony by Mr Phaka that he had found staff members congregated at the premises and proceeded to chair the meeting. While it is common cause that the Applicant was a shop steward, I am of the view that the Applicant did not breach Resolution 3 of 2014 in that she did not call a meeting as envisaged under clause 4 of the Resolution, and no evidence was led to suggest that the meeting that took place was a trade union meeting.
25. The Applicant faced further charges of intimidation alternatively victimisation of colleagues Mrs Coetzee and Mrs Du Rante that the Applicant had banged on doors and Mrs Coetzee’s desk instructing her to leave class and attend the meeting. It was Mrs Coetzee’s unchallenged evidence that they were busy with teaching and learning when the Applicant intimidated her and demanded that she leaves what she was doing and go to the meeting. Mrs Grobler testified that on the day in question she was in her class and was not teaching students as there was a strike. The fact that there was a students’ strike is not in dispute, however absent a challenge of Mrs Coetzee evidence that she was teaching and that the Applicant’s conduct disrupted teaching and learning, It was put to Mrs Coetzee under cross examination how she knew it was the Applicant who was banging on the door, it was not disputed that there had been banging on the door, therefore a logical inference can be drawn that if there is banging on the door and then the Applicant enters soon thereafter, she would have been the one banging on the door. Mrs Grobler testified that she was not a person easily intimidated and she was used to being “handled in that way”. Her testimony suggests some form of intimidation, however I accept that she did not feel intimidated, therefore the testimony by Mrs Coetzee that she felt intimidated by the Applicant’s conduct is in my view not far-fetched.
26. The Applicant argued that because the witnesses did not attend the meeting, they could not have been intimidated by the Applicant. The Labour Appeal Court in Adcock Ingram Critical Care v CCMA & others (2001) 22 ILJ 1799 (LAC) considered not only that the employee in that instance had been aware of the meaning that would be attached to his words but also the context in which they had been uttered. I am inclined to accept that Applicant in her conduct intimidated her colleagues and disrupted teaching and learning because as a result of the Applicant’s conduct the students in Mrs Coetzee’s class left and Mrs Coetzee went to find out why she was required to a meeting she had received no invitation for. Intimidation is a very serious issue in the workplace and a sanction of dismissal for acts of intimidation is not in my view a harsh sanction.
AWARD
27. I find that the dismissal of the Applicant TD Matlala was substantively fair.
28. The referral is dismissed.
DATED AT JOHANNESBURG ON THIS 30th day of March 2022.
NL Dandadzi
CCMA Commissioner