PSES115-18/19WC
Text
ELRC561-20/21KZN
Award Date:
06 May 2022
Panellist: V Naidoo
Case No.: ELRC561-20/21KZN
Date of Award: 06 May 2022
In the matter between:
PSA obo SB Ntuli
Applicants
and
Department of Higher Education and Training
First Respondent
Union/Applicants’ representative: Mr I Mooloo
PSA
Respondent’s representative: Mr SB Mthethwa
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an arbitration award in respect of a dismissal dispute between PSA obo SB Ntuli, the Applicant, Department of Higher Education and Training, the Respondent.
2. The hearing was held in virtually on 09 June 2021. It was then heard in person on 13 August 2021; 29 September 2021; 08 December 2021; 23 and 24 February 2022. The proceedings were conducted in English and recorded electronically. Closing arguments were to submitted no later than 01 April 2022 and both parties complied.
3. Applicant was represented by Mr I Mooloo of PSA and Respondent was represented by its Labour Relations Officer, Mr SB Mthethwa. The interpreter for the process was Ms P Mabele.
4. Bundles of documents were admitted into evidence and marked Bundles A and E. The initial pre-arbitration conference was held between different representatives and the new representatives were unable to reach agreement on the content of the minutes. It was therefore agreed that a new pre-arbitration conference be held, and a new set of minutes were signed off on 06 October 2021.
ISSUE TO BE DECIDED
5. The issue to be decided is whether Applicant was unfairly dismissed. Both procedure and substance was challenged. In the event that I find in favour of Applicant, I am to decide on an appropriate remedy.
BACKGROUND TO THE DISPUTE
6. It is common cause that Applicant was employed as a Lecturer in Engineering at Coastal TVET College, Durban. He commenced employment in June 2011. Applicant was dismissed on 16 November 2020 following a disciplinary hearing.
7. Applicant pleaded guilty to:
1. Performance of remunerative work without permission of the employer
2. Alleged fraudulent signing of the Campus attendance register whilst not at work
3. Failure to declare additional income
8. Counts 4 and 5 were therefore withdrawn.
9. Applicant was earning R18 731.00 at the time of his dismissal. Applicant admits to have worked for Fabricon Pipes and Labour Hire for approximately a month during February and March 2018 for remuneration and without the consent of the employer.
10. Applicant admits that a medical certificate was provided to Respondent for the period in question and he was paid sick leave for the duration of his leave.
SUMMARY OF THE EVIDENCE AND ARGUMENT
11. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing, most of which are contained in the background to the dispute above. What follows is a summary of the evidence relevant to my findings only.
Respondent’s Case
12. Thabani Mhlongo (“Mhlongo”) testified as Assistant Director, Labour Relations and as chairperson of the disciplinary enquiry. He testified to the role of a presiding officer and the manner in which he conducted the process. He was appointed in terms of PSCBC Resolution 1 of 2003.
13. The matter was scheduled for 10 June 2019 and was postponed. On 20 June 2019, the matter proceeded with Applicant being represented by a Mr Naidoo of PSA. Documents were exchanged. This included the charge sheet. Applicant was charged with three counts. He understood the seriousness of the charges and there were no preliminary issues raised. Applicant pleaded guilty on the three counts and aggravation and mitigation was led. The sanction was later communicated.
14. No evidence was led. The nature of the charges warrants a dismissal as it goes to the relationship of trust between employer and employee.
15. A migration of FET Colleges had taken place in 2015. Prior to the migration, Lecturers were appointed in terms of the Employment of Educators Act (“EoEA”). Since migration, the CET Act came into effect. Public Service Act and Regulations are still valid. PSCBC Resolution 1 of 2003 is the Disciplinary Code and Procedures that applies to Lecturers.
16. Under cross-examination Mhlongo disagreed that Applicant was employed in terms of the EoEA and maintained the he was appointed as the presiding officer in terms of the correct resolution. He disagreed that his findings are nullified by the incorrect appointment. He maintained that TVET Colleges used to fall under the jurisdiction of Basic Education. They now fall under the scope of Higher Education and Training. An Educator teaching basic education and a Lecturer teaches in Higher Education.
17. He noted that the charge sheet made reference to EoEA. It was not his role to amend charges and he specifically asked if there were any preliminary issues to be raised. He is aware that the drafter of the charges is not a legal expert. His findings however, were not made in terms of the EoEA. He focussed on the PSA and Regulations and the Disciplinary Code.
18. He conceded that there were errors in the description, but the charge itself was sufficient for him to make a determination. The actual counts were read to Applicant and he pleaded guilty. There were no objections raised. Mhlongo added that the ELRC and PSCBC Collective Agreements have similar processes anyway. The sanction and outcome would be the same.
19. With regard to Applicant’s suspension, Mhlongo testified that it would be invoked if Applicant’s presence jeopardised the investigation. It did not so he was not suspended. Not all serious misconduct warrants suspension as this would be a waste of taxpayers money. He was not a person working in Finance and committed fraud.
20. Mhlongo maintained that Applicant was allowed to call witnesses if he disagreed about the breakdown of trust between employer and employee. He was also given the opportunity to consult with his representative.
21. Rajeev Kumar Ramdev (“Ramdev”) testified as Human Resource Manager for the Coastal TVET College. He explained how the TVET Colleges migrated to DHET and the definition of an educator as compared with lecturer. He explained policies relating to remunerative work outside of the DHET and the internal Coastal TVET policy relating to conflict of interest, and the processes to be followed in each of these instances before final approval is given.
22. Ramdev confirmed that a substitute lecturer was utilised to cover Applicant’s lectures while he was away. The cost of this was R6580 and R7520. He confirmed that Applicant was also paid for the period of absence. He summarised the incident by confirming that he received a letter from the Campus Manager and an investigation ensued. Prior to this, the medical certificate appeared legitimate. The investigation uncovered that Applicant was engaged in work during the period of sick leave, and the medical certificate was therefore not a true reflection of what happened.
23. Under cross-examination, Ramdev testified to his 28 years of experience in the HR Component and his previous experience in Basic Education. He noted that EoEA was quoted in error in the charges against Applicant. He added however that this does not detract from the seriousness of the offences.
24. He testified that the PSCBC Resolution embodies all who work in Public Service. Notwithstanding however, the ELRC Collective Agreement reflects the same principles. He maintained that misquoting the Act does not make the charges defective and Applicant had an opportunity to seek clarity from college management or HR if he was unclear.
25. Ramdev confirmed that when markers go to marking centres, there is no core teaching and learning taking place. Internal arrangements are made, if necessary. He disputed Applicant’s version that students are left unattended during this period and he confirmed that when lecturers are marking, they are fulfilling a role for the same employer, namely DHET.
26. He disputed that the monies not being recovered implies that Applicant’s conduct was condoned. He disputed that Applicant’s non suspension implied that the employment relationship remained intact. Ramdev maintained that Applicant was not a threat to the investigation and during an appeal, the conditions of service are not to be interfered with. He was not prejudiced by any delay in addressing his appeal.
27. Mark King (“King”) testified as the HOD for NATED Engineering and the author of the report submitted to HR relating to the incident that ultimately led to Applicant’s dismissal. He was the Acting Campus Manager at the time of the incident.
28. The Campus Register for the period of 12 February 2018 to 16 February 2018 was admitted into evidence and it reflects absent for 12 February 2018. Signatures appeal for Applicant for the rest of the period however there is no sign outs for 15 and 16 February 2018. Movement reports from Fabricon indicate that Applicant was working for them during this period. His medical certificate is dated 19 February 2018. The registers were therefore fraudulently signed.
29. King explained the process undertaken to apply for National Exam Marking and that DHET remains the employer for lecturers who are successful in their applications. Marking is a crucial process to teaching and learning.
30. Under cross-examination, King confirmed that the registers remain in the staff room, so Applicant could have signed it at any time.
31. Jennifer Cole (“Cole”) testified as the HR/ Payroll Manager for Fabricon Pipe & Labour Hire. She confirmed that Applicant had completed an employee details form and a contract before being given access to the client’s site. He signed relevant documentation on 12 February 2018 and was employed as a Mechanical Rotating Fitter working on pumps. It required mental and physical fitness which he passed.
32. Under cross-examination, Cole confirmed that Applicant did not provide any medical certificates or request sick leave from Fabricon.
33. Viloshni Nair (“Nair”) testified as the Head of Administration, Durban Campus and the investigator/ initiator of the disciplinary enquiry. She also drafted the charges against applicant.
34. Nair confirmed that she is not a legal expert. Applicant pleaded guilty at the enquiry and no plea bargaining had taken place.
35. During her investigation, Nair had attempted to meet with Applicant. She called him three times and on the first occasion, he indicated that he was busy so she waited two hours for him and he did not arrive. On the second occasion, he said that he had nothing to say as his actions were cleared with central office.
36. On the final occasion, he said that he would be there within the hour and did not arrive. She did not know where he was. There was no lecturer in his class. She therefore submitted her investigation report without his input.
37. There are only 10 weeks of lecturing time per trimester. With four weeks of lecturing time left, Applicant took sick leave and a replacement had to be found at very short notice. His conduct put a strain on the lecturers and learners. It was not fair to all.
38. Nair conceded to misquoting the EoEA. She is aware that his appointment is in terms of PSA. She submitted that the description of the offences are correct, barring misquoting of EoEA.
39. She also confirmed that his actions brought the College into disrepute as learners intern at these companies. Dishonest lecturers may tarnish the reputation of the college with these employers.
40. Under cross-examination, Nair disputed that her investigation was confined to the department offices and she ought not to have gone to Fabricon. She submitted that it was her duty to investigate the entire incident to obtain a full picture of what had happened, in fairness to Applicant. She found nothing untoward in recommending charges as no hearing had taken place prior to the submission of her report. There was no plea bargaining with Applicant’s representative on the day of the enquiry. There were no discussions or agreements reached with him.
41. She disputed that there was no evidence that Applicant had fraudulently signed that attendance register. Her investigation established that per King, Applicant’s vehicle did not enter the premises on the days in question; there is a signature next to Applicant’s name and per his version, he did not attend on those days.
42. Nair consistently maintained that the charges were not defective for quoting the incorrect Act. The highlighted counts in bold text was based on her investigation and in dealing with the charge sheet, the chairperson read the entire charge to Applicant and he pleaded guilty.
Applicant’s Case
43. Applicant testified to being a Lecturer from 2011. He went to the doctor and was diagnosed with depression and medication was prescribed. He was booked off for the period of 19 February 2018 to 19 March 2018. The cause of his depression was his mums illness and the need for an eye operation and his lack of funds.
44. He managed to find additional work at Fabricon Pipe and Labour Hire and he did not enter the Campus whilst at work at Fabricon. He did not sign the registers nor did he arrange for anyone to sign on his behalf. He did not lie about his illness.
45. Applicant pleaded guilty to the charges as he was advised by his representative to show remorse for a lesser sanction. He now changed his plea for the second count. He disputed Nair’s testimony that she contacted him. He never spoke to her. He did not authorise Fabricon to disclose confidential information about him to the College and he does not accept the outcome of the hearing. He was not suspended. The appeal took 18 months to finalise and his performance was never questioned. He was never dishonest and the trust relationship did not break down.
46. Applicant views his dismissal as too harsh. He did not provide a fraudulent medical certificate and his mum was sick. He did not leave the students unattended and he was not aware that he needed to disclose additional income.
47. Under cross-examination Applicant confirmed that he was advised to plead guilty and show remorse for a lesser sanction. He also confirmed that in his appeal, he cited that the sanction was too harsh and he sought a sanction lesser than a dismissal. His plea of not guilty on the signing of the register was not brought up until now. He stated that this was because he was not given an opportunity to speak until the arbitration.
48. Applicant at first could not recall if he applied for leave for the week of 12 to 16 February 2018 and later confirmed that he did not make an application. He did not recall where he was on 12 February 2018 as his contract commenced on 13 February 2018. He recalled that he was at Fabricon on 12 February 2018 when he was shown that his personal details form was dated 12 February 2018. He had no explanation for how a signature appeared in the register for the period in question.
49. His medical certificate was dated 19 February 2018 but the Movement Report for Fabricon indicates that he arrived at 6.10am and exited at 17.38. He could not recall what time he had consulted with the doctor. He confirmed that he did not furnish the medical certificate to Fabricon and he was aware than it was an inherent requirement for the job to be mentally and physically fit.
50. Respondent argued the dismissal was fair and the matter ought to be dismissed.
51. Applicant argued that dismissal was not an appropriate sanction and that Applicant was charged under the incorrect provisions. He argued that he was not guilty of count 2 and that the relationship of trust was not broken between the parties.
ANALYSIS OF EVIDENCE AND ARGUMENT
52. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing, most of which are contained in the background to the dispute above. What follows is a summary of the evidence relevant to my findings only.
Procedure
53. I wish to first address the procedural challenges to the dismissal. In terms of the pre-arbitration minutes, I am confined to the following:
• Whether the notice was defective as it does not comply with Schedule 2 of Employment of Educators Act.
• Whether Count 2 is valid as it does not specify which section of the Basic Conditions of Employment Act was contravened.
• Whether Count 3 is valid as it cites the Public Service Regulations which do not apply to Applicant
• The Chairperson was appointed in terms of PSCBC Resolution 1 of 2003. He was therefore not empowered to make a decision as the PSCBC Resolutions do not apply to Applicant.
54. In considering the procedural challenges above, I note that Respondent’s witnesses consistently disputed that the notice was defective. They submitted that the PSA and its Regulations apply to Applicant and the EoEA ceased to apply since the migration of FET Colleges to DHET in 2015. There was no evidence led to outweigh this version. I therefore cannot find that the notice was defective for failure to comply with Schedule 2 of the EoEA. I also cannot find that Count 3 was invalid for citing PSA Regulations.
55. There was no evidence led by Applicant to suggest that Count 2 is invalid as it does not specify which section of the Basic Conditions of Employment Act was contravened.
56. The final procedural challenge relates to the appointment of the chairperson. As previously mentioned, there was no evidence led by Applicant to suggest that the PSCBC Resolutions do no apply to him.
57. Additionally, in the interest of justice, I note that Applicant was fully aware of the allegations laid against him. He was also provided with an opportunity to respond to the allegations. He was represented by a union official and he had adequate time and opportunity to query the validity of the allegations and he failed to do so. He also did not raise this as an issue during the appeal process.
58. Respondent witnesses testified that the Regulations of ELRC and PSCBC mirror each other and the choice does not change the process that would have been followed, the selection of chairperson or the substance of the allegations. Mhlongo was very clear in his testimony that he was aware of the grey areas in the quoting of legislation in the charge sheet and that his outcome was based purely on the substance of the charges and not on the legal technicality.
59. Applicant in this regard has failed to show how the merit of his dispute was impacted by any procedural defect. It is my view that even if there was a procedural defect in the manner in which the charge sheet was drafted or in the legal technicality of how the chairperson was appointed, this does not negate the fairness of the process undertaken. I now turn to the substantive challenges.
Substance
60. In terms of the per-arbitration minutes, I am to make a determination on the following substantive challenges:
• Whether the sanction of dismissal is warranted for Counts 1 and 3
• Whether the sanction of dismissal was consistently applied to other employees
• Whether Applicant is guilty on Count 2
61. No evidence was led to suggest that any colleagues were not dismissed for offences that are similar in nature to the allegations that led to the Applicant’s dismissal. The allegation of inconsistency rested with lecturers who attended to marking. However, it is common cause that an application process had to be followed and approved prior to any marking taking place. The employer at all times remained Respondent. It is common cause that Applicant worked for a different employer, whilst on sick leave with Respondent. He did not make an application to Respondent either. The challenge to consistency must therefore fail.
62. Applicant pleaded guilty in the disciplinary enquiry. He testified that he was advised to plead guilty and show remorse for a lesser sanction. His union representative who allegedly advised him of such did not testify and Respondent disputed the existence of any agreement.
63. At the arbitration hearing, Applicant accepted his guilt on the two charges of performing remunerative work without permission and his failure to declare the additional income. He however disputes the charge of allegedly signing the campus register whilst not at work. I will now deal with the evidence relating to this charge.
64. Applicant conceded that he was not at work for the period of 12 to 16 February 2018. He could not explain how his signature appeared on the register. He could not recall where he was during this period until employee take on forms from the second employer were shown to him. He eventually conceded that he did not apply for leave for the period. It is common cause that the medical certificate is dated 19 February 2018 but Applicant was at his second employer for the entire day. In these circumstances and with no plausible explanation for how the signature appeared on the register, I find Respondent’s version to be the more plausible version of events. As such, on a balance of probability, I find Applicant guilty of the offence.
65. Finally, I now wish to address the issue of whether the sanction of dismissal was too harsh. Applicant wishes for consideration to be given to his personal circumstances, namely his mum needing eye surgery. No evidence was presented to substantiate this claim.
66. Applicant did not consider his actions to be dishonest as he claimed that he was diagnosed by a medical practitioner for depression. No one testified to the authenticity of the medical diagnosis. Applicant did not submit this medical certificate to his second employer and it is common cause that he needed the time off to work for the second employer. It is also common cause that physical and mental fitness for duty is an inherent requirement for the additional work he had undertaken and that he has passed his fitness tests.
67. It is common cause that he obtained his full sick leave benefits for the period from Respondent and at no stage did he show any willingness to pay the monies back. There was no genuine remorse shown for his conduct and there was no acceptance of accountability for his actions.
68. Applicant argues that there was no evidence led relating to the breakdown of trust, despite the testimony of Respondent’s witnesses in this regard. Be that as is may, it is clear that Applicant was dishonest and placed his best interest ahead of that of Respondent and his learners. This cannot be justified by an employee’s personal circumstances. And this does go to the heart of the trust relationship.
69. In light of all of the circumstances, I find that dismissal was a fair sanction.
AWARD
70. The dismissal of Applicant, SB Ntuli, by Respondent, the Department of Higher Education and Training is fair.
71. The application is dismissed.
Case No.: ELRC561-20/21KZN
Date of Award: 06 May 2022
In the matter between:
PSA obo SB Ntuli
Applicants
and
Department of Higher Education and Training
First Respondent
Union/Applicants’ representative: Mr I Mooloo
PSA
Respondent’s representative: Mr SB Mthethwa
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an arbitration award in respect of a dismissal dispute between PSA obo SB Ntuli, the Applicant, Department of Higher Education and Training, the Respondent.
2. The hearing was held in virtually on 09 June 2021. It was then heard in person on 13 August 2021; 29 September 2021; 08 December 2021; 23 and 24 February 2022. The proceedings were conducted in English and recorded electronically. Closing arguments were to submitted no later than 01 April 2022 and both parties complied.
3. Applicant was represented by Mr I Mooloo of PSA and Respondent was represented by its Labour Relations Officer, Mr SB Mthethwa. The interpreter for the process was Ms P Mabele.
4. Bundles of documents were admitted into evidence and marked Bundles A and E. The initial pre-arbitration conference was held between different representatives and the new representatives were unable to reach agreement on the content of the minutes. It was therefore agreed that a new pre-arbitration conference be held, and a new set of minutes were signed off on 06 October 2021.
ISSUE TO BE DECIDED
5. The issue to be decided is whether Applicant was unfairly dismissed. Both procedure and substance was challenged. In the event that I find in favour of Applicant, I am to decide on an appropriate remedy.
BACKGROUND TO THE DISPUTE
6. It is common cause that Applicant was employed as a Lecturer in Engineering at Coastal TVET College, Durban. He commenced employment in June 2011. Applicant was dismissed on 16 November 2020 following a disciplinary hearing.
7. Applicant pleaded guilty to:
1. Performance of remunerative work without permission of the employer
2. Alleged fraudulent signing of the Campus attendance register whilst not at work
3. Failure to declare additional income
8. Counts 4 and 5 were therefore withdrawn.
9. Applicant was earning R18 731.00 at the time of his dismissal. Applicant admits to have worked for Fabricon Pipes and Labour Hire for approximately a month during February and March 2018 for remuneration and without the consent of the employer.
10. Applicant admits that a medical certificate was provided to Respondent for the period in question and he was paid sick leave for the duration of his leave.
SUMMARY OF THE EVIDENCE AND ARGUMENT
11. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing, most of which are contained in the background to the dispute above. What follows is a summary of the evidence relevant to my findings only.
Respondent’s Case
12. Thabani Mhlongo (“Mhlongo”) testified as Assistant Director, Labour Relations and as chairperson of the disciplinary enquiry. He testified to the role of a presiding officer and the manner in which he conducted the process. He was appointed in terms of PSCBC Resolution 1 of 2003.
13. The matter was scheduled for 10 June 2019 and was postponed. On 20 June 2019, the matter proceeded with Applicant being represented by a Mr Naidoo of PSA. Documents were exchanged. This included the charge sheet. Applicant was charged with three counts. He understood the seriousness of the charges and there were no preliminary issues raised. Applicant pleaded guilty on the three counts and aggravation and mitigation was led. The sanction was later communicated.
14. No evidence was led. The nature of the charges warrants a dismissal as it goes to the relationship of trust between employer and employee.
15. A migration of FET Colleges had taken place in 2015. Prior to the migration, Lecturers were appointed in terms of the Employment of Educators Act (“EoEA”). Since migration, the CET Act came into effect. Public Service Act and Regulations are still valid. PSCBC Resolution 1 of 2003 is the Disciplinary Code and Procedures that applies to Lecturers.
16. Under cross-examination Mhlongo disagreed that Applicant was employed in terms of the EoEA and maintained the he was appointed as the presiding officer in terms of the correct resolution. He disagreed that his findings are nullified by the incorrect appointment. He maintained that TVET Colleges used to fall under the jurisdiction of Basic Education. They now fall under the scope of Higher Education and Training. An Educator teaching basic education and a Lecturer teaches in Higher Education.
17. He noted that the charge sheet made reference to EoEA. It was not his role to amend charges and he specifically asked if there were any preliminary issues to be raised. He is aware that the drafter of the charges is not a legal expert. His findings however, were not made in terms of the EoEA. He focussed on the PSA and Regulations and the Disciplinary Code.
18. He conceded that there were errors in the description, but the charge itself was sufficient for him to make a determination. The actual counts were read to Applicant and he pleaded guilty. There were no objections raised. Mhlongo added that the ELRC and PSCBC Collective Agreements have similar processes anyway. The sanction and outcome would be the same.
19. With regard to Applicant’s suspension, Mhlongo testified that it would be invoked if Applicant’s presence jeopardised the investigation. It did not so he was not suspended. Not all serious misconduct warrants suspension as this would be a waste of taxpayers money. He was not a person working in Finance and committed fraud.
20. Mhlongo maintained that Applicant was allowed to call witnesses if he disagreed about the breakdown of trust between employer and employee. He was also given the opportunity to consult with his representative.
21. Rajeev Kumar Ramdev (“Ramdev”) testified as Human Resource Manager for the Coastal TVET College. He explained how the TVET Colleges migrated to DHET and the definition of an educator as compared with lecturer. He explained policies relating to remunerative work outside of the DHET and the internal Coastal TVET policy relating to conflict of interest, and the processes to be followed in each of these instances before final approval is given.
22. Ramdev confirmed that a substitute lecturer was utilised to cover Applicant’s lectures while he was away. The cost of this was R6580 and R7520. He confirmed that Applicant was also paid for the period of absence. He summarised the incident by confirming that he received a letter from the Campus Manager and an investigation ensued. Prior to this, the medical certificate appeared legitimate. The investigation uncovered that Applicant was engaged in work during the period of sick leave, and the medical certificate was therefore not a true reflection of what happened.
23. Under cross-examination, Ramdev testified to his 28 years of experience in the HR Component and his previous experience in Basic Education. He noted that EoEA was quoted in error in the charges against Applicant. He added however that this does not detract from the seriousness of the offences.
24. He testified that the PSCBC Resolution embodies all who work in Public Service. Notwithstanding however, the ELRC Collective Agreement reflects the same principles. He maintained that misquoting the Act does not make the charges defective and Applicant had an opportunity to seek clarity from college management or HR if he was unclear.
25. Ramdev confirmed that when markers go to marking centres, there is no core teaching and learning taking place. Internal arrangements are made, if necessary. He disputed Applicant’s version that students are left unattended during this period and he confirmed that when lecturers are marking, they are fulfilling a role for the same employer, namely DHET.
26. He disputed that the monies not being recovered implies that Applicant’s conduct was condoned. He disputed that Applicant’s non suspension implied that the employment relationship remained intact. Ramdev maintained that Applicant was not a threat to the investigation and during an appeal, the conditions of service are not to be interfered with. He was not prejudiced by any delay in addressing his appeal.
27. Mark King (“King”) testified as the HOD for NATED Engineering and the author of the report submitted to HR relating to the incident that ultimately led to Applicant’s dismissal. He was the Acting Campus Manager at the time of the incident.
28. The Campus Register for the period of 12 February 2018 to 16 February 2018 was admitted into evidence and it reflects absent for 12 February 2018. Signatures appeal for Applicant for the rest of the period however there is no sign outs for 15 and 16 February 2018. Movement reports from Fabricon indicate that Applicant was working for them during this period. His medical certificate is dated 19 February 2018. The registers were therefore fraudulently signed.
29. King explained the process undertaken to apply for National Exam Marking and that DHET remains the employer for lecturers who are successful in their applications. Marking is a crucial process to teaching and learning.
30. Under cross-examination, King confirmed that the registers remain in the staff room, so Applicant could have signed it at any time.
31. Jennifer Cole (“Cole”) testified as the HR/ Payroll Manager for Fabricon Pipe & Labour Hire. She confirmed that Applicant had completed an employee details form and a contract before being given access to the client’s site. He signed relevant documentation on 12 February 2018 and was employed as a Mechanical Rotating Fitter working on pumps. It required mental and physical fitness which he passed.
32. Under cross-examination, Cole confirmed that Applicant did not provide any medical certificates or request sick leave from Fabricon.
33. Viloshni Nair (“Nair”) testified as the Head of Administration, Durban Campus and the investigator/ initiator of the disciplinary enquiry. She also drafted the charges against applicant.
34. Nair confirmed that she is not a legal expert. Applicant pleaded guilty at the enquiry and no plea bargaining had taken place.
35. During her investigation, Nair had attempted to meet with Applicant. She called him three times and on the first occasion, he indicated that he was busy so she waited two hours for him and he did not arrive. On the second occasion, he said that he had nothing to say as his actions were cleared with central office.
36. On the final occasion, he said that he would be there within the hour and did not arrive. She did not know where he was. There was no lecturer in his class. She therefore submitted her investigation report without his input.
37. There are only 10 weeks of lecturing time per trimester. With four weeks of lecturing time left, Applicant took sick leave and a replacement had to be found at very short notice. His conduct put a strain on the lecturers and learners. It was not fair to all.
38. Nair conceded to misquoting the EoEA. She is aware that his appointment is in terms of PSA. She submitted that the description of the offences are correct, barring misquoting of EoEA.
39. She also confirmed that his actions brought the College into disrepute as learners intern at these companies. Dishonest lecturers may tarnish the reputation of the college with these employers.
40. Under cross-examination, Nair disputed that her investigation was confined to the department offices and she ought not to have gone to Fabricon. She submitted that it was her duty to investigate the entire incident to obtain a full picture of what had happened, in fairness to Applicant. She found nothing untoward in recommending charges as no hearing had taken place prior to the submission of her report. There was no plea bargaining with Applicant’s representative on the day of the enquiry. There were no discussions or agreements reached with him.
41. She disputed that there was no evidence that Applicant had fraudulently signed that attendance register. Her investigation established that per King, Applicant’s vehicle did not enter the premises on the days in question; there is a signature next to Applicant’s name and per his version, he did not attend on those days.
42. Nair consistently maintained that the charges were not defective for quoting the incorrect Act. The highlighted counts in bold text was based on her investigation and in dealing with the charge sheet, the chairperson read the entire charge to Applicant and he pleaded guilty.
Applicant’s Case
43. Applicant testified to being a Lecturer from 2011. He went to the doctor and was diagnosed with depression and medication was prescribed. He was booked off for the period of 19 February 2018 to 19 March 2018. The cause of his depression was his mums illness and the need for an eye operation and his lack of funds.
44. He managed to find additional work at Fabricon Pipe and Labour Hire and he did not enter the Campus whilst at work at Fabricon. He did not sign the registers nor did he arrange for anyone to sign on his behalf. He did not lie about his illness.
45. Applicant pleaded guilty to the charges as he was advised by his representative to show remorse for a lesser sanction. He now changed his plea for the second count. He disputed Nair’s testimony that she contacted him. He never spoke to her. He did not authorise Fabricon to disclose confidential information about him to the College and he does not accept the outcome of the hearing. He was not suspended. The appeal took 18 months to finalise and his performance was never questioned. He was never dishonest and the trust relationship did not break down.
46. Applicant views his dismissal as too harsh. He did not provide a fraudulent medical certificate and his mum was sick. He did not leave the students unattended and he was not aware that he needed to disclose additional income.
47. Under cross-examination Applicant confirmed that he was advised to plead guilty and show remorse for a lesser sanction. He also confirmed that in his appeal, he cited that the sanction was too harsh and he sought a sanction lesser than a dismissal. His plea of not guilty on the signing of the register was not brought up until now. He stated that this was because he was not given an opportunity to speak until the arbitration.
48. Applicant at first could not recall if he applied for leave for the week of 12 to 16 February 2018 and later confirmed that he did not make an application. He did not recall where he was on 12 February 2018 as his contract commenced on 13 February 2018. He recalled that he was at Fabricon on 12 February 2018 when he was shown that his personal details form was dated 12 February 2018. He had no explanation for how a signature appeared in the register for the period in question.
49. His medical certificate was dated 19 February 2018 but the Movement Report for Fabricon indicates that he arrived at 6.10am and exited at 17.38. He could not recall what time he had consulted with the doctor. He confirmed that he did not furnish the medical certificate to Fabricon and he was aware than it was an inherent requirement for the job to be mentally and physically fit.
50. Respondent argued the dismissal was fair and the matter ought to be dismissed.
51. Applicant argued that dismissal was not an appropriate sanction and that Applicant was charged under the incorrect provisions. He argued that he was not guilty of count 2 and that the relationship of trust was not broken between the parties.
ANALYSIS OF EVIDENCE AND ARGUMENT
52. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing, most of which are contained in the background to the dispute above. What follows is a summary of the evidence relevant to my findings only.
Procedure
53. I wish to first address the procedural challenges to the dismissal. In terms of the pre-arbitration minutes, I am confined to the following:
• Whether the notice was defective as it does not comply with Schedule 2 of Employment of Educators Act.
• Whether Count 2 is valid as it does not specify which section of the Basic Conditions of Employment Act was contravened.
• Whether Count 3 is valid as it cites the Public Service Regulations which do not apply to Applicant
• The Chairperson was appointed in terms of PSCBC Resolution 1 of 2003. He was therefore not empowered to make a decision as the PSCBC Resolutions do not apply to Applicant.
54. In considering the procedural challenges above, I note that Respondent’s witnesses consistently disputed that the notice was defective. They submitted that the PSA and its Regulations apply to Applicant and the EoEA ceased to apply since the migration of FET Colleges to DHET in 2015. There was no evidence led to outweigh this version. I therefore cannot find that the notice was defective for failure to comply with Schedule 2 of the EoEA. I also cannot find that Count 3 was invalid for citing PSA Regulations.
55. There was no evidence led by Applicant to suggest that Count 2 is invalid as it does not specify which section of the Basic Conditions of Employment Act was contravened.
56. The final procedural challenge relates to the appointment of the chairperson. As previously mentioned, there was no evidence led by Applicant to suggest that the PSCBC Resolutions do no apply to him.
57. Additionally, in the interest of justice, I note that Applicant was fully aware of the allegations laid against him. He was also provided with an opportunity to respond to the allegations. He was represented by a union official and he had adequate time and opportunity to query the validity of the allegations and he failed to do so. He also did not raise this as an issue during the appeal process.
58. Respondent witnesses testified that the Regulations of ELRC and PSCBC mirror each other and the choice does not change the process that would have been followed, the selection of chairperson or the substance of the allegations. Mhlongo was very clear in his testimony that he was aware of the grey areas in the quoting of legislation in the charge sheet and that his outcome was based purely on the substance of the charges and not on the legal technicality.
59. Applicant in this regard has failed to show how the merit of his dispute was impacted by any procedural defect. It is my view that even if there was a procedural defect in the manner in which the charge sheet was drafted or in the legal technicality of how the chairperson was appointed, this does not negate the fairness of the process undertaken. I now turn to the substantive challenges.
Substance
60. In terms of the per-arbitration minutes, I am to make a determination on the following substantive challenges:
• Whether the sanction of dismissal is warranted for Counts 1 and 3
• Whether the sanction of dismissal was consistently applied to other employees
• Whether Applicant is guilty on Count 2
61. No evidence was led to suggest that any colleagues were not dismissed for offences that are similar in nature to the allegations that led to the Applicant’s dismissal. The allegation of inconsistency rested with lecturers who attended to marking. However, it is common cause that an application process had to be followed and approved prior to any marking taking place. The employer at all times remained Respondent. It is common cause that Applicant worked for a different employer, whilst on sick leave with Respondent. He did not make an application to Respondent either. The challenge to consistency must therefore fail.
62. Applicant pleaded guilty in the disciplinary enquiry. He testified that he was advised to plead guilty and show remorse for a lesser sanction. His union representative who allegedly advised him of such did not testify and Respondent disputed the existence of any agreement.
63. At the arbitration hearing, Applicant accepted his guilt on the two charges of performing remunerative work without permission and his failure to declare the additional income. He however disputes the charge of allegedly signing the campus register whilst not at work. I will now deal with the evidence relating to this charge.
64. Applicant conceded that he was not at work for the period of 12 to 16 February 2018. He could not explain how his signature appeared on the register. He could not recall where he was during this period until employee take on forms from the second employer were shown to him. He eventually conceded that he did not apply for leave for the period. It is common cause that the medical certificate is dated 19 February 2018 but Applicant was at his second employer for the entire day. In these circumstances and with no plausible explanation for how the signature appeared on the register, I find Respondent’s version to be the more plausible version of events. As such, on a balance of probability, I find Applicant guilty of the offence.
65. Finally, I now wish to address the issue of whether the sanction of dismissal was too harsh. Applicant wishes for consideration to be given to his personal circumstances, namely his mum needing eye surgery. No evidence was presented to substantiate this claim.
66. Applicant did not consider his actions to be dishonest as he claimed that he was diagnosed by a medical practitioner for depression. No one testified to the authenticity of the medical diagnosis. Applicant did not submit this medical certificate to his second employer and it is common cause that he needed the time off to work for the second employer. It is also common cause that physical and mental fitness for duty is an inherent requirement for the additional work he had undertaken and that he has passed his fitness tests.
67. It is common cause that he obtained his full sick leave benefits for the period from Respondent and at no stage did he show any willingness to pay the monies back. There was no genuine remorse shown for his conduct and there was no acceptance of accountability for his actions.
68. Applicant argues that there was no evidence led relating to the breakdown of trust, despite the testimony of Respondent’s witnesses in this regard. Be that as is may, it is clear that Applicant was dishonest and placed his best interest ahead of that of Respondent and his learners. This cannot be justified by an employee’s personal circumstances. And this does go to the heart of the trust relationship.
69. In light of all of the circumstances, I find that dismissal was a fair sanction.
AWARD
70. The dismissal of Applicant, SB Ntuli, by Respondent, the Department of Higher Education and Training is fair.
71. The application is dismissed.