ELRC629-21/22 GP

In the arbitration between
Matseletsele: Tankiso Margaret

APPLICANT

AND

Western TVET College Council RESPONDENT

ARBITRATION AWARD


CASE NUMBER: ELRC629-21/22 GP
DATE AWARD /RULING: 18 January 2023
NAME OF PANELIST: Mmeli Danisa

DETAILS OF HEARING AND REPRESENTATION
1 The Arbitration into the alleged unfair dismissal dispute, referred in terms of section 191(1) (a) of the Labour Relations Act 66 of 1995 (the Act).
2 The hearing was conducted on 31 August 2022 and 22 November 2022 at the offices of the Western TVET College head Office, 42 Johnstone Street, Randfontein, Gauteng and was part heard. The matter continued on-line on 26-27 September 2022 and 24 November 2022.
3 The Applicant, Ms. Tankiso Margaret Matseletsele, was present and represented by Mr Ramokabane Sefatsa, SALIPSWU union official. The Respondent, Western TVET College Council, was represented by Mr. Nkanteko Zitha, Assistant Director Labour Relations.
4 The Applicant’s position was a Post Level 1 (PL1) Lecturer, earning R24 161.00 she was employed on 01 June 2015 and her date of dismissal was 27 October 2021.
5 The Applicant submitted Bundle A1 with 30 pages and Bundle A2 with 20 Pages and the Respondent submitted Bundle R with 36 pages. The proceedings were digitally recorded, and electronic notes were taken.

POINT IN LIMINE/ PRE-LIMINARY ISSUES
6 There is one pre-liminary issue
ISSUE TO BE DECIDED
7 As confirmed on record, the issues to be decided were whether or not the Applicant’s dismissal was substantively fair or not.
PROCEDURAL
8 The procedural fairness is not in dispute.
SUBSTANTIVE
9 The Applicant challenges the validity of the charge as she contends the following;
11.1 The sanction was too harsh as a first-time offender,
11.2 Progressive discipline was not followed
11.3 Mitigating factors were not taken into account
10 The substantive fairness is in dispute.
BACKGROUND TO THE DISPUTE
11 The Applicant was employed by the Respondent on 01 June 2015 and her date of dismissal is under dispute as 27 October 2021.
12 The Applicant was given one charge, namely;
• Charge 1: Gross dishonesty; it is alleged that on or about 27 November 2020 at or near Western TVET College (Krugersdorp Central Campus) you intentionally mislead your supervisor, Mr T.P Phala, by sending him a WhatsApp message indicating that you were not fit for work due to medical conditions while you were at the airport. Therefore, you were absent from work 27 – 30 November 2020 without good reason since you were intentionally dishonest towards your supervisor.
13 The issue remains whether the Applicant’s dismissal was substantively fair or not.
SURVEY OF EVIDENCE AND ARGUMENTS
14 I am not going to give an exhaustive survey of all the evidence and arguments led during the arbitration hearing. What follows is a concise summary of evidence relevant to my findings only.

THE RESPONDENT’S CASE
15 The Respondent called in four witnesses that testified under oath.
16 Mr Mathibela Jack Tema (“Jack”) was the Respondent’s first witness, in his sworn evidence he testified as follows:
18.1 He was appointed by the Respondent as the chairperson of the Applicants hearing. He is a vice principal for corporate services for one of the TVET Colleges in the Freestate.
18.2 His decision to dismiss took into consideration the evidence presented before him and he found the Applicant’s conduct to be calculated.
18.3 He did not doubt or decide on the sick notes as it was not the issue before him. The employees were not charged for being sick.
18.4 He looked at the word gross dishonesty and the incidents and the Applicants mitigating circumstances and her closing arguments.
18.5 He looked at the fact that two employees working together, were absent and were not at work on 27 November 2020. They were booked off for the same period 27-30 November 2020 and they had pictures on their WhatsApp statuses on the same weekend.
18.6 He saw elements intended to mislead the Respondent, the Applicants were dishonest and untruthful. Their actions were intentional, deliberate and calculated. Taking a trip is very intentional.
18.7 The Applicants alleged at some stage that the pictures were tampered with but there was a witness which addressed that and that was not an issue.
18.8 The Applicants’ conduct was in doubt and not the sick notes.
18.9 On a balance of probability on the evidence before him he felt that both employees should be found guilty, and that dismissal was a fair outcome.
18.10 Bundle R Pg 4 – 12. Pg 8 paragraph 16 is a similar case at the ELRC.
18.11 Bundle R, Pg 21-36 findings report. Pg 23 Witness 1 (receipt of sicknotes and that the pictures were the 2 employees) he received absence notification from the 2 employees and found it misleading after seeing the pictures on the WhatsApp and college group. The Respondents’ witnesses were coherent and consistent in their evidence and the Applicant failed to dispel the evidence.
18.12 Pg 25 Witness 2. Recognised the employees on screenshots on WhatsApp’s.
18.13 Pg 26 paragraph 41, witness saw the status pictures with a message of traveling hours.
18.14 Pg 5, paragraph 4.1 – 4.5 (apology, sorry and mitigating).
18.15 Mitigations are on his sanction report Pg 31, Paragraph 77 – 79 is closing arguments and his analysis. Arguments do not make a case.
18.16 Considered that the Applicant only showed remorse at the mitigating stage. He considered case law and her expenses.
19 Jack in his cross examination testified as follows:
19.1 The issue of the employees not being at work at the same time was coincident. Bundle R pg. 16 shows that the Applicant was booked off for sick leave for 26 – 30 November. Bundle A2 Pg 10 shows the other employee was booked off for 27 – 30 November.
19.2 Bundle A1, Pg 11 pictures. He is not sure who spoke on the pictures or deliberated on the 2 employees’ trip.
19.3 He does not know which airport the Applicants were in.
20 Mr. Sydney Kgoete (“Sydney”) was the Respondent’s second witness, in his sworn evidence testified as follows:
20.1 He is the campus manager at Krugersdorp Central. His responsibilities are to oversee the operations of the campus which includes the management of academic and support staff at the campus. H knows the Applicant as she used to work at his campus.
20.2 Bundle R, Pg 22. Read the Charge. Which he says was brought to his attention by one of the senior lecturers (Michelle Fourie) after they had seen pictures of the Applicant and a colleague at the airport on 27 November 2022.
20.3 After he received the pictures, he was shocked as he believed that the employees were sick. He felt that the Applicant had been dishonest to the institution in that she misled them in saying that she was sick. He expected her to be resting in order to recover. He then decided to take the matter forward to HR.
20.4 Mr Phala is who the Applicant reports to, and he said she was unwell on the 27th and forwarded a WhatsApp message he had been sent by the Applicant which illustrates that she was unwell.
20.5 Mr Phala reported on 27 November 2020 in the morning that the Applicant would not be coming to work, and Michelle reported the WhatsApp images later around 4/5pm.
20.6 The period was during exams and there were invigilations that were supposed be done by the Applicant on the 27th and the 30th. If an employee is absent, then a replacement has to be sought and the late notice made it extremely hard, and the department needed to get external invigilators which cost money and they came late which means this caused an irregularity which is operating with a shortage.

21 Sydney in his cross examination testified:
22 The Applicant reported after 7am in the morning and the exams start at 9am. They are allowed into the venue by 8 am and they have to be seated by 08:30.
22.1 The timetable is generated and distributed before the exam. Only one final timetable is distributed, and he is not aware of any other timetables.
22.2 The department trains employees on the procedure before the exams start, which is based on the departments exam policy. They provide instructions on how to conduct the examination. The training includes supervisors, mangers, HOD’s and examination officers and excluded the Applicant.
22.3 Those that have been trained by department then train those that are in the campus which would include the Applicant. This would include timelines with emphasis that by 8 am the invigilators must have collected the papers from the main office and the venue opened.
22.4 The 8am deadline is provided by the campus to meet the department rules, it is a campus arrangement.
22.5 The matter of absence was spoken about in campus corridors and on WhatsApp, Mr Phala spoke about it in the morning and later it was reported by Mrs Fourie.
22.6 Based on the evidence provided at the hearing, the Applicant was dishonest in that the employee was somewhere else (at the airport) instead of being home recovering. He is not aware which airport the Applicants were at on the photos.
22.7 The Applicant should not have admitted in their mitigation if they were not guilty.
23 Sydney in his re-examination testified:
23.1 He submitted the matter to HR for investigation and external neutral chairperson was appointed and he came up with the verdict and sanction.
24 Mr. Michelle Fourie (“Michelle”) was the Respondent’s third witness, in his sworn evidence testified as follows:
24.1 She is a Post level 2 appointed lecturer for tourism at Krugersdorp campus. She knows the Applicant who was a post level 1 lecturer teaching at the same campus as her.
24.2 She was involved in the matter as a witness in the hearing and reported the matter to the campus manager. The employee’s absence had been reported on the management group by Mr Phala and later she saw the WhatsApp statuses of the Applicant and the other employee.
24.3 The Applicant had reported that she would not be coming to work and did not feel well and would not be coming to work.
24.4 Her concern was seeing the Applicant posting pictures of being at the airport and near a plane which is a restricted area while they had both reported sick and unable to come to work.
24.5 She remembers the suitcases on the pictures and that the Applicants had come with the suitcases on one of the days in the same week after lunch which she believes were new and that they had just bought them. The suitcases did not have scratches and looked very bright, and she does not believe that they would bring old suitcases to campus.
24.6 The concern was around how there were exams, and their absence affected the school regarding the invigilating as external parties needed to be contracted to replace them.
25 Michelle in her cross examination testified:
25.1 There was only one timetable, but a timetable may be amended for various reasons. She drafted the invigilating timetable and would have to confirm if the Applicant was shifted in the timetable. Only she and Mr Kgethe could amend the timetable.
25.2 The Applicants were walking in from town dragging their new suitcases as she was also coming in from the gate. She was assuming that they were from town, and she cannot be sure. She did not inspect the bags and cannot be sure they were new but from her point of view they were new.
25.3 Pg 18 of the Respondent bundle is a picture with a pillar that shows it is OR Tambo.
25.4 Pg 19 and 20 shows pictures with a time and no date. The messages are forwarded.
25.5 Wallace and Fourie disciplinary cases that signed for each other (fraud) called and given warnings, they were at work and not absent. She cannot speak on the sanction.
25.6 She did not see any airline ticket.
26 Mr. Thapelo Phala (“Thapelo”) was the Respondent’s fourth witness, in his sworn evidence testified as follows:
26.1 He is a PL 1 lecturer now and in 2020 he was an acting PL 2 senior lecturer at the time of the incident. The Applicant was a colleague.
26.2 He reported the Applicants absence to the senior lecturer’s group after the messages were sent to him by the Applicant.
26.3 Pg 17 – 20 of Respondent’s bundle. He saw the pictures after the investigation and during the disciplinary hearing and had not seen them before that.
27 Thapelo in his cross examination testified:
27.1 The Applicant sent him a message and he forwarded it.
27.2 He saw a hard copy of the investigation report from Amon. He never got a copy.

THE APPLICANT’S CASE
28 The Applicant had one witness testify on her behalf and she also testified. Miss. Keabetswe Nawa (“Kea”) was the Applicant’s first witness, in her sworn evidence testified as follows:
28.1 She started working for the Respondent on 01 March 2009 in the Krugersdorp campus. She knows the Applicant who was her colleague in the same department and they in the same social club where they do activities together like hiking and weekends away.
28.2 She is aware that the Applicant was dismissed like herself for not being sick whilst reporting to be sick.
28.3 They were charged together and one hearing was conducted for both of them. They were not addressed separately, and one question was posed to both of them.
28.4 She consulted a doctor in Protea Glen (Makhubela). They are a husband-and-wife combo, and the husband has since passed on this year. She was charged in 2020 and dismissed in May 2022. The office is still operating with the wife alone now.
28.5 Mr Phala was an acting senior lecture and she sent him a message in the morning that she was not coming to work in the morning. She followed the correct procedure as required about her absence and she was surprised when she was charged for lying to Mr. Phala about being sick when she was not sick.
28.6 Mr Thema requested her and the Applicant to produce their passport to prove she did not leave the country.
29 Kea in her cross examination testified as follows:
29.1 Michelle Fourie saw her and the Applicant coming in with their bags which were dropped off and had clothes inside. The bags were not new but had been used and even now they in the same condition. New bags have stickers and are in a plastic.
29.2 She did not go to the airport and only went to the doctors. The Applicant also informed her that she was also sick. They had travelled together before and were both sick.
29.3 She submitted her sick note to her superior on her return. She was not with the Applicant on the day she went to the doctor.
29.4 She believes the Applicant’s case was biased as there are other colleagues who were not dismissed for similar issues from stealing and the other two who were signing for each other. The two ladies got a final written warning (Mrs Wallace and Mrs Fourie) and Kgabi Misu was suspended for a month and moved to another campus.
29.5 She apologised after the verdict as she had been found guilty for something she had not done.
30 Kea in her cross -examination testified as follows:
30.1 She was not with the Applicant on the day she reported sick, and she cannot state the Applicants condition. She and the Applicant had travelled together on the week before the period they took sick leave.
30.2 Pg 20 of Respondents bundle, pictures. Miss Fourie screenshots her status and amended the date somehow. The photos were taken on another date and uploaded on the date she was sick but was not for the day.
30.3 It is fair to appoint a chairperson who is someone from outside, the chairperson was from the department, a homeboy known by the principal. The procedure followed by the Respondent was fair.
31 Kea in her cross -examination testified as follows:
31.1 She was not with the Applicant on the day she reported sick, and she cannot state the Applicants condition.
32 Applicant in her examination in chief testified as follows:
32.1 She was employed by the Respondent on 01 June 2015 as a PL 1 Lecturer at Krugersdorp campus and Mr Phala was her manager.
32.2 Pg 13 of Respondent (B1) charge. She did not mislead Mr Phala as charged. On the 27th she was unwell and followed the procedure by informing Mr Phala around 06:45 via WhatsApp. Mr Phala did not respond to the message. She only spoke to him thereafter when she returned to campus.
32.3 Her cousin dropped off their bags at 11/ 12 on a Monday when Mrs Fourie saw them. The bags were not new and had been dropped off by her cousin.
32.4 The airport is King Shaka airport, and the pictures were taken on 02/03 of October 2020.
32.5 Mr Phala was not there during her discipline process and no such investigation report was provided to her. Mr Phala was not the complainant but a witness in the process and he said he did not believe she was sick, and he believed the pictures.
32.6 She has a good relationship with management at large including Mr Phala, Fourie and Kgwete. She gets along with everyone and believes the decision was harsh.
32.7 She believes and understands that she was or is supposed to be honest with the Respondent.
32.8 She is aware that she was not charged for being sick. She is not sure whether her sick leave was approved but her leave was accepted by the Respondent. She has applied for leave before and it has never been rejected.
32.9 She called Ms Nawa as a witness. She was home alone when she was sick. On the period she was sick she posted a picture of herself and Ms Nawa around 9pm. She had received the pictures from Ms Nawa, and she saw the pictures on Ms Nala’s status around 7pm.
32.10 She is not aware that Ms Nawa reported around 06:45 which was when she had reported sickness. She is now aware that Ms Nawa was booked off for the same period as her for illness. She believes Ms Nawa was back at work on the day she returned on 01 December 2020.
32.11 The pictures were for the same year in 2020 and they were taken around October, first week of October (3rd of October). She maintains that the pictures were taken either on the 2nd or 3rd of October 2020. The 2nd was a Friday and 27th November was a Friday.
32.12 She was with Ms Nawa on 21 and 22 November 2020 on a trip. She and Ms Nawa displayed pictures on the 27th of November 2020, that shows both of them at an airport.
33 Applicant in her re-examination testified as follows:
34 She reported her sickness at 06:45, she consulted the doctor on the 26th of October 2020.

ANALYSIS OF EVIDENCE AND ARGUMENT
35 Section 138 (7) of the Labour Relations Act 66 of 1995 requires an arbitrator to issue an award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration hearing.
SUBSTANTIVE FAIRNESS
36 It is common cause that,
36.1 That the Applicant had a sick note which covered her for the period of the 27th – 30th of November 2020.
36.2 That the Applicant and her co-worker posted pictures on their WhatsApp statuses of them at an airport in the period they were booked off sick.
36.3 That one of the pictures had the caption “after 4 hours flight, we tired and sick”.
36.4 That the Applicant submitted there mitigating factors wherein she submitted that 1) she wronged the Respondent, and she was sorry for her actions and that 2) she commits that such an act would not happen again, and she commits to restore trust with management.
37 I believe the substantive fairness of this case turns on the fact that the Applicants mitigation submissions are that of a person who has admitted guilt and not one that is innocent, in that;
37.1 An innocent person can be sorry for the way things may appear or the victims harm, but an innocent person does not say they have wronged the Respondent and further say they are sorry for their actions.
37.2 An innocent person also does not commit themselves to never do the initial act they were prosecuted for and found guilty for, and they certainly do not commit to repairing or restoring a trust relationship they did not break.
38 There are also a few too many coincidences which build up as insurmountable circumstantial evidence like;
38.1 The co-workers being sick in the same period,
38.2 The co-workers being seen with travel bags on the week they suspected of going traveling,
38.3 The co-workers posting pictures of each other at the airport on the same date, pictures they alleged to have been for another date and travel arrangement.
38.4 Both the co-workers’ phones were lost or no longer had the pictures themselves to prove when they were taken.
39 These added together paint a bad picture against the co-workers, especially when you consider other factors such as;
39.1 Why are they posting old pictures with current captions such as “after 4 hours flight, we tired and sick”. If it’s an old picture, then you reminisce like saying “take me back” or something like that and not what they captioned.
39.2 If they know when the pictures were taken, if the pictures were from another specific trip and they do not have the pictures to prove when they were taken then they could atleast show evidence like a flight ticket, or purchases of a flight ticket for the previous period which they stated was for 02/03 October 2020.
39.3 If the Applicant’s version of the trip being on 02/03 October 2020, then why would it have taken the Applicant longer than a month and a half to request the pictures of the trip from her co-worker?
40 The above adds a lot of doubt to the Applicants version and does not shift the burden of proof back to the Respondent. In other words, the Respondents assumption and or version appears more plausible than that of the Applicant.
41 I will not be dealing with the Applicant’s version of inconsistency which came about during the hearing and not in the beginning as we narrowed down the issues. Furthermore, the Applicant did not present sufficient information regarding the other co-worker’s dishonesty matter in order to have a clear view on those matters. I only had sufficient evidence for the matter before me.

FINDING
42 I am required to decide whether the Applicant’s dismissal was substantively fair and then determine the appropriate relief if I find the dismissal to be unfair in any of the above two respects. Section 138(7)(a) of the LRA enjoins me to provide brief reasons for my findings.
43 According to Section 188(1) of the LRA, the dismissal of the employee will be unfair if the employer fails to prove that the dismissal was affected for a fair reason related to the Applicant’s conduct or capacity or based on the employer’s operational requirements, and that the dismissal was affected in accordance with a fair procedure.
44 Item 7 of Schedule 8 of the LRA provides that;
“Any person who is determining whether a dismissal for misconduct is unfair should consider-
(a)Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if the rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.”
45 In the premises I find that the Respondent was successful in proving that the Applicant contravened a rule, on a balance of probabilities regarding the charge and the Applicant was unable to prove that the charge was not valid and or that they did not commit the charge.
46 I find that the Applicant’s dismissal was Substantively fair in this regard.
AWARD

I make the following award:
47 I make the following award:
48 The Applicant’s dismissal was both procedurally and substantively fair.
49 The applicant’s case is dismissed.

Signature:

Commissioner: Mmeli Danisa
Sector: Education