ELRC123-20/21 FS

IN THE ELRC HELD IN QWAQWA AND BETHLEHEM ON VARIOUS DATES

CASE NO: ELRC123-20/21 FS
In the matter between
PSA obo P. P. Lephuthing Applicant
AND
Department of Higher Education Respondent
and Training (Maluti TVET College)

AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the arbitration between Mr P. P. Lephuthing, the employee and Department of Higher Education and Training (DHET) Maluti TVET College (“the College”), the employer.

2. The Arbitration was held under the auspices of the ELRC in terms of section 191 (5) (a) of the Labour Relations Act 1995 as amended (“the LRA”) read together with the provisions of Part C of the Constitution of the ELRC and in particular Par 3 thereof. The award is issued in terms of section 138 (7) of the LRA read together with the provisions of clause 18.5 of Part 7 of the ELRC Constitution.

3. The arbitration hearing took place on various dates at the offices of the College at Bethlehem and Phuthaditjhaba.

4. The employee was represented by Mr N. Cloete of the PSA.

5. The employer was represented by Mr Ngcosana, its Labour Relations Officer.

ISSUE TO BE DECIDED

6. The dispute is whether the dismissal of Mr Lephuthing was substantively and procedurally unfair.

7. In regard to the substantive fairness of the dismissal, the issues are whether Mr Lephuthing committed misconduct by being insubordinate by having failed to comply with a lawful and reasonable instruction given to him by his campus manager to take part in invigilating the examinations as well as inciting the college students to strike against college Management. It is also in issue whether the sanction of dismissal was an appropriate sanction.

8. The procedural issue is whether Mr Lephuthing was charged in terms of a correct Collective Agreement or Disciplinary Procedure and whether a proper procedure as laid down in circular HR 13 of 2015 was followed.

9. The relief sought was also in issue.

THE BACKGROUND TO THE DISPUTE

10. Mr Lephuthing was employed as a Lecturer (level 1) in Engineering Studies at Itemoheleng Campus of the college since 1 September 2006.

11. He was charged with insubordination and incitement of students’ unrest at the College. The insubordination charge had to do with the alleged failure by the employee on 11 April 2018 to comply with a lawful and reasonable instruction of the Itemoheleng Campus Manager to invigilate the students who were writing examinations. The incitement charge was alleged to have taken place during the period March and May 2018.

12. A disciplinary enquiry was held and the employee was found guilty on both charges and was dismissed on 10 July 2019. His appeal failed on 11 June 2020.

13. The employee referred a dispute to the ELRC for arbitration.

SURVEY OF EVIDENCE AND ARGUMENT

14. Mosiuoa David Mokhobo (Makhobo) testified on behalf of the Respondent. He was Deputy Principal and was responsible for Human Resources administration, among others. He had conducted a survey amongst the employees of the College. Under the section of the survey where Respondents were required to suggest what they thought should happen at the College, the Lectures indicated that the Principal of the College Mr Mabena together with the staff that came with from Gert Sibande College should leave Maluti TVET College, among others.

15. There were indications that the Lectures were using the students to advance issues that affected them. Such included the students demanding that the College Management should reduce study groups from six to four. The student made it their issue that the College was taking disciplinary steps against the Lectures.

The Lectures were teaming up with students against the College Management. In a criminal case against one Mafereka the students testified against the Principal in support of Mafereka who was a Lecturer.

16. The Applicant was very influential at the College and was a PSA shop steward. At a meeting which was held at the Corporate office of the College at Bethlehem he had overheard a student by the name of Tsietsi talking to a person whom he had addressed as “Mr Lephuthing” Tsietsi was affirming whatever the person he was referring to as Mr Lephuthing was saying to him. It was during a break of the meeting. He phoned the Principal and informed him about Tsietsi’s telephone conversation to a Lephuthing. After a while he was told by the Principal that the meeting had collapsed after its resumption. After that meeting of 11 May 2018 at Bethlehem the College property was set on fire. The Applicant was already facing misconduct charges when the students raised the charging of Lecturers with misconduct as one of their demands or issues.

17. The Principal of the College Mr Veli Eric Mabena stated that he had arrived at the College in 2013 and was acting Principal until he was appointed Principal in August 2014. It was after his permanent appointment as Principal that he realized that some staff members were not happy with his appointment. The number of strikes by students revealed a hidden hand of Lecturers behind such student action. Students were raising issues which had no bearing on them but which were issues that affected Lecturers such as textbooks and the taking of disciplinary action against the Lecturers.

18. On 11 April 2018 at a meeting which was arranged to discuss the student issues he saw the Applicant driving past the meeting venue and was in the company of one Molwelwe a Lecturer that had been dismissed. On 11 April 2018 was the date on which the Applicant had refused to invigilate during examinations.

19. As part of efforts to end the ongoing strike a meeting was arranged with student leaders at Bethlehem. The meeting proceeded well until at its break. During the break Mokhobo had phoned him concerning a piece of telephone conversation he had heard with Tsietsi, the Itemoheleng student leader had with one Mr Lephuthing. Upon resumption the meeting collapsed. About two to three days after the collapse of the Bethlehem meeting the Central office of the Collage at Phuthaditjhaba was burned down by the students. The major reason behind the students’ strike and destruction spree was that the College was taking disciplinary action against errant Lecturers and that issue did not belong to students.

20. The Applicant was charged in accordance with the prescripts of Resolution 1/2013 in 2018. At the time of the charges the Applicant was no longer an employee of the College Council but was an employee of the Department of High Education and Training (DHET). He had appointed the chairperson of the disciplinary hearing of the Applicant in terms of his delegated powers. The circular in pages 1 – 13 of A was directed at the period of the function shift from Provinces to DHET.

21. Whether or not a particular date appeared on the examination table, if on any given date there are examinations being written the Campus Manager has the right to instruct any available Lecturer to invigilate and that Lecturer has no right to disregard that instruction.

22. Dan Lehlakola who was the Itemoheleng Campus Manager at the material time stated that the Applicant had been appointed to invigilate the examinations that were held on 11 April 2018. He told the Applicant and other Lecturers who were gathered outside the entrance gate to the Campus to get inside to invigilate. The Applicant told him that they would not enter the campus premises without protection. Some students were gathered outside the campus premises. He called the SAPS to the campus and upon their arrival he told the Applicant to enter the premises so as to invigilate because there was police protection. The Applicant told him that he would not get inside the campus premises. The students were dispersed by the police but even after that the Applicant did not enter the premises to invigilate. His instruction to the Applicant was lawful and reasonable and there were no reasonable grounds on the basis of which the Applicant had refused to obey the instruction.

23. The Applicant had been appointed invigilator for the duration of the examination and the fact that his name may not have appeared on the examination roster for a given date of the examination did not mean that he was no longer an invigilator.

24. Teboho Rapabi testified under oath. He was a student of the Respondent College, Itemoheleng since 2014 up to 2018. He was chairperson of the student body at Itemoheleng and became its President in 2017. During the 2016 strike the main issue for the students was NFSAS and books. He got to know that each Campus bought its own books while they were made to believe that it was the principal who was responsible for buying books. The books were eventually found in a locked storeroom at the campus. The strike was initiated by the students while the Lectures provided them moral support.

25. The issue that the Principal should resign was the one which involved Lectures and the Community members. He was not a witness at the disciplinary hearing of the Applicant. The memorandum of demands during the strike was drawn up by the students and included inputs from students, Lecturers and the community. He was the person who presented the memorandum to the D.G. and his entourage. Lecturers were the ones who issued students with books – the Lecturers would collect the books from the stock issuing official. The Lecturers told the students that there were no books.

26. Tsiliso Nhlapho testified under oath: He was a student at the Respondent College during the years 2016 – 2019. He was SRC President during the strike of 2018. Their demands as students included the treatment of Lecturers as slaves by the Principal and also the dismissal of Lecturers. The issues on the memorandum of demands were collected by the chairperson of the various campuses of the Collage. The memorandum contained 70% student issues and 30% was for the rest. Tsietsi Mokoena was his Deputy President and he was from Itemoheleng Campus.

27. During a meeting of students with management he fell ill and was driven to where he stayed. The Applicant and Molwelwe came to see him and the issue of him affiliating to Madisha was raised by the Applicant. Madisha’s organization was said to have direct access to the Minister of DHET and the argument was that issues on their memorandum would get fast tracked to the Minister. He had no relationship with the Applicant.

28. During a meeting which was held at Bethlehem his Deputy Tsietsi did not take kindly to the Council telling them that management would be responding to student issues – he wanted the Council itself to address the issues. Tsietsi and a section of the students left the meeting. Upon the students return to the meeting the chairperson of Itemoheleng suggested that the meeting focus on the last item on the agenda namely the demand that the Principal should resign. Upon being asked to present evidence on the Principal, Tsietsi and others left the meeting again. He did not see Tsietsi when he went out to call the others back to the meeting. Upon their return to the meeting the Council wanted evidence on the Principal and all left the meeting one after the other.

29. He was home when he got a message that the Central Campus offices were on fire. Contracts of certain staff members were pushed into his room through the opening at the bottom of the door. The accompanying note said he should expose the corruption. He realized later that they (students) were being used to further other people’s purposes. The Applicant gave him the form to fill in for membership of Madisha’s organization and later on he received the same forms from Madisha on his email.

30. Lephuthing’s position was that the Respondent had charged him with misconduct unprocedurally. He was appointed in terms of the Educators Act and was as a result an appointee of the College Council. He should have been charged in terms of a disciplinary code that has been developed and approved by the College Council. The chairperson of the Disciplinary hearing should not have been appointed by the Principal of the College but should been appointed in terms of the prescripts which were contained in pages 1 – 13 of Bundle A (“A”) on the Function Shift. They were moved from the Free State Dept of Education to DHET with effect from 1 April 2015.

31. The authority to appoint chairpersons of disciplinary hearings was vested in Departmental officials and not in the Principal. The award in case PSES 807-17/18 of 22 October 2019 supported his view on the Principal’s lack of authority.

32. He did not refuse to take lawful instructions as alleged. He had never incited the students as alleged. He had gone to Phuthaditjhaba’s SAPS not to support arrested students but to certify copies of his Identity Document and Driver’s Licence. He had never spoken to a student leader Tsietsi of his campus on a day of a meeting which was held in Bethlehem.

33. He was not given an instruction by Lehlakola to invigilate on 11 April 2018. The only instruction they were given was to enter the campus which they did not do immediately after the instruction. Students Nhlapo and Teboho Rapabi did not take part in the internal disciplinary hearing. He had checked the invigilation roster on the eve of 11 April 2018 and he was not supposed to invigilate on 11 April 2018 as per the roster.

34. He was confused in connection with which Resolution he was to have been charged. The Act prescribed that the Code in terms of which he should have been charged would be one which was approved by the College Council. He was not aware of the various Acts in terms of which the Lecturers were moved from one institution to the other.

35. He was paid by the DHET and had a Persal number. He was appointed on a permanent basis. Nobody told him to which Bargaining Council he belonged when he was an Educator and later on Lecturer. He was always under the impression that he was a College Council employee.

36. He agreed that the employees who were additional to the fixed establishment and that section 20 (1) (b) applied to those. He conceded that he fell under the FET C Sector that is on page 28 of B. The scope of Collective Agreement 5/2008 excluded him. Res 1/2013 was not applicable to him because the College Council had not approved it in terms of section 20 (1) (b). He was not aware that Res 1/2013 had been approved by the College Council. He was also not aware whether the Council had approved the contents of the document contained in pages 1 – 13 of A. Prior to 2015 Principals of Colleges had authority to appoint chairpersons of internal hearings. He had appealed the outcome of his disciplinary hearing and that lay to the Minister.

37. Lehlakola did not tell him to get inside the campus premises in order to invigilate – but only to get inside the premises. He had not been scheduled to invigilate on 11 April 2018. They were afraid to enter the premises because they had been driven out by the students who were still there. When the SAPS arrived he had told Lehlakola to talk to the police so that they could enter the premises. If there are problems even the administrative staff help out with invigilating. He had been trained as invigilator. All the trained invigilators were outside the premises. He did not know who was scheduled to invigilate on 11 April 2018.

38. The students did not have any problem with Lecturers who were invigilating, they would have problems if all the Lecturers entered the premises as they were bent on closing down the campus. The campus Manager could tell any of the available invigilator to invigilate. He would have entered the premises to invigilate had Lehlakola told him so but he only said he should enter the premises and they were afraid of students, Mofokeng would have been put on the invigilators list in the morning of 11 April 2018 and would explain his having entered the premises to help with invigilation. Mofokeng and Mphuthi had entered the premises and the two were part of the staff that had been driven out earlier. Mofokeng entered premises at around past 10H00 when students were then few at the gate.

39. He and Molwelwe drove to the residences of students on 11 April 2018. When Molwelwe went inside the residences he remained behind in the vehicle. He was later to know that Nhlapho, the student leader stayed at the premises in question. He never had talks with Nhlapho on 11 April 2018 at the student’s residences as alleged.

40. He was dismissed after he was found guilty at a disciplinary hearing. He was charged with misconduct for alleged gross insubordination and for allegedly having incited students to engage in boycotting classes and engaging in unlawful conduct. The property of the Respondent was torched as a result of the student action. The intention of the boycotts was to get the Principal of College removed from his post. He was found guilty of the above two charges.

ANALYSIS OF EVIDENCE AND ARGUMENT

41. The Parties have agreed in the Pre-arb minute that the arbitrator should determine whether or not the dismissal of the Applicant was procedurally and substantively fair.

Procedural fairness.

42. The Applicant’s position was that the Principal of the College had no authority to have appointed the chairperson of the disciplinary hearing as has happened. In his understanding his disciplinary hearing should have been handled in accordance with the provisions of Circular 13 of 2015 as contained in A. Having not done so, the Respondent had charged him unprocedurally. The Applicant did not offer any evidence to show that the alleged procedural unfairness had prejudiced him in any manner while dealing with the case against him.

43. The very circular 13/2015 on which the Applicant heavily relied to advance his case showed openly in paragraph 4.1 thereof that a Principal of a College has delegated authority regarding related disciplinary matters in respect of, among others, Post levels 1 – 3 on which the Applicant was at the material time. Paragraph 5 of the same Circular leaves no doubt that misconduct cases which occurred or were initiated on or after 1 April 2015 for employees who had migrated to the Department, the PSCBC Resolution 1/2003 (the Disciplinary Code and Procedure for the Public Service shall apply). The Applicant testified that he was moved to DHET with effect from 1 April 2015. I find that there was no authority that the Respondent would be acting unprocedurally if they had brought charges against the Applicant in terms of the submissions made by the Applicant.

44. I find that the Principal did not err by having appointed the chairperson of the Applicant’s disciplinary hearing. Even if Circular 13 of 2015 needed to be followed by the Respondent, the circular – which did not have the binding force of a Collective Agreement would not trump the provisions of the Schedule 8 to the LRA.

45. The belief by the Applicant that he was an employee of the College Council at the material time and that as a result he should have been charged in terms of a Disciplinary procedure that had been approved by the College Council, was based on his misunderstanding and incorrect interpretation and application of the provisions of Further Education and Training College Act, 2006, Act 16/2006. The Applicant testified that he was transferred to DHET with effect from 1 April 2015. The Applicant’s reliance on Act 1/2006 sought to have him avoid being treated in terms of Collective Agreement 1 of 2013, which was a later version of Res 1/2003.

46. It was interesting to note that the Applicant filed for appeal in terms of the Respondent procedures. He also referred his unfair dismissal dispute to the ELRC while one would expect him to have appealed and referred his dispute to the College Council – his alleged employer!

47. I was referred to an award and a ruling by the Applicant as his support for the view that the Respondent was not supposed to have appointed his presiding officer as has happened. Awards and Rulings of Commissioners have no binding force like Court judgements. The awards have persuasive value only. I have already stated earlier that paragraph 5 headed Disciplinary Cases – Operational Arrangements in page 6 of A states clearly that “misconduct cases which occurred on or after 1 April 2015 for employees who had migrated to DHET the PSCBC Resolution 1 of 2003” the Disciplinary Code and Procedure for the Public Service shall apply. The Applicant’s misconduct occurred on 11 April 2018 and the hearing was set down on 11 July 2018.

48. It is difficult to understand how the Applicant expected the Respondent to apply the contents of the Circular which circular itself stated that with effect from 1 April 2015 Resolution 1/2003 would apply to all misconduct issues that occurred after 1 April 2015. This meant that with effect from 1 April 2015 the Circular in question could not be used for misconduct cases which occurred after 1 April 2015.

49. The notice of hearing was received by the Applicant on 5 July 2015. The date of hearing was given as 11 January 2018. The letter of notice of hearing that was given to the Applicant stated that the provisions of Schedule 8 of the LRA in so far it related to discipline constituted part of Resolution 1/2003 in terms of which he was charged – see pages 10 and 12 of B.

Item 4 of the Schedule 8 is all about fair procedure. Compliance with the provisions of item 4 of Schedule 8 is enough to lead to procedural fairness of the dismissal. The Applicant did not rely on any Collective Agreement for his position that the Respondent acted unfairly as regards procedural fairness. What the Applicant relied on was a circular.

50. Interestingly the Applicant argued strongly that Res 5/2008 did not apply to him because his Union the PSA was not a signatory to it and had not been joined in (the) process – see page 28 at clause 2 (5). The confounding part of the Applicant’s position was that in his view he was an employee of the College Council (this he clung to while in the same breath he conceded that he was being paid by the DHET as well as that he had been transferred to the DHET with effect from 1 April 2015. The Applicant also conceded during cross examination that the contents of the Generic Contract as contained in pages 40 to 48 applied to him the gist of the Applicant’s position that the Respondent had no authority to appoint a chairperson for his hearing was his misinterpretation of the amendments to the Further Education and Training Colleges Amendment Act, 2012. The Applicant relied on his misinterpretation of section 20 (1). His misinterpretation of the Act led him to the incorrect understanding that he was an employee of the College Council which he was not and he conceded that he was an employee of DHET.

51. I find that the Respondent had authority to appoint a chairperson for the Applicant’s disciplinary hearing. There was no procedural unfairness on the part of the Respondent.

52. With regard to the incitement charge against the Applicant, not a single witness of the Respondent testified that indeed the Applicant had “incited personnel" (students) to engage in an unprocedural and/or unlawful conduct of students of boycotting classes that left the property of the College severely destructed (torched). Even the way in which the Respondent has couched the charge against the Applicant was speculative. The charge talked about personnel and in brackets students as those who were allegedly incited. At some stage the very students who were allegedly incited, were said to have boycotted classes including exams that left the property of the College severely destructed.

53. The charge (i.e. charge 2) is said to have taken place or happened during the period and/or between the period March and May 2018. Again the charge has been couched in such wide terms as rendered it speculative. The case of the Respondent relied (partly) on the testimony of Mokhobo who testified that he had overheard a student leader addressing someone whom he (the student) named Mr Lephuthing. On the basis of that “telephonic” call, the Respondent sought to establish that it was the Applicant that the student leader must have been talking to. The subsequent breakdown of the talks between the students and the College was pegged on the Applicant on the basis of the speculative suspicion that indeed it was the Applicant who had been talking to the student leader. Mokhobo did not disclose what “Mr Lephuthing” was saying to the student leader and yet he assumed that it must have been the Applicant to whom the student was speaking.

54. The Respondent through the testimony of Mabena sought to infer from Mabena having seen the Applicant drove passed the Respondent’s Central office that the Applicant was influencing the meeting between the students and the College. The passing by of the Applicant at the Central office amounted to him inciting the students who were at the meeting at that time. Mabena also testified that when he saw the Applicant driving by the Central office he was in the presence of the Molwelwe who had been dismissed by the Respondent.

55. The Applicant was also said to have been seen at the student residences where Nhlapho, the SRC president at the time was residing. This visit as well was how the Applicant was said to have been inciting the students.

56. With regard to the Applicant’s support to a student that had been arrested and was at the Phuthaditjhaba Police Station, the Applicant was said to have gone to the Police Station to show his support to the student. How would a person who has been arrested be incited to play a role in any unlawful conduct as the Applicant was said to have done by having been at Phuthaditjhaba SAPS to allegedly give to an arrested student, the Respondent did not explain or tell. At no stage has it been disclosed by the Respondent where the arrested student was at the station where the Applicant was able to “incite” him. Showing support and inciting are two different concepts. In order to justify their suspicion regarding the Applicant’s presence at the Police Station the Respondent cast doubt on the certified copies of the Applicant. Ndaba who was the police officer who certified the documents of the Applicant showed that the version of the Respondent was untenable.

57. The above instances which were relied upon by the Respondent as showing or proving the alleged incitement charge against the Applicant did nothing of the kind. The instances were at best the weak foundation of the suspicion on the part of the Respondent. The student who was arrested and supposed to have been incited or even supported by the Applicant was not named. It was not identified at which part of the Police Station the Applicant incited or supported the student. It was expected by the Respondent that the mere mention of the Applicant and the unknown student having been at the Station must found the suspicion that the Applicant was there to incite or support the student in question! In order to prop up its suspicion on the purpose of the Applicant’s visit to SAPS station, Mabena suggested that the Applicant’s certified copies were not genuine. Ndaba put to rest the unfounded suspicion of the copies in question having been “doctored”.

Importantly it was not stated – in all instances that were supposed to show that the Applicant was inciting the students – how the Applicant had incited the students to strike.

58. The charge of incitement was based on suspicion which was not reasonable given the facts of this case. The visit by the Applicant to the Police station has just been shown that there were no reasonable grounds on the basis of which the Respondent could have reasonably suspected that the Applicant was at police station to incite the unidentified student to “strike”. The student was already arrested and could not be “incited” to do anything unlawful while he was under arrest. Likewise, the Mokhobo’s suspicion was based on unreasonable belief that the student was being incited by the unknown “Mr Lephuthing” and that the “passing by of the central office” by the Applicant amounted to inciting students was really far-fetched and very unreasonable on the part of the Respondent. The suspicion of the Respondent cannot merely be a subjective one, as is the case in this matter, the suspension must be reasonable – Matshele v Minister of Police (65732/2018) (2021) (ZAGPHC). I find that the Respondent has not proven charge one against the Applicant. The Police management to disperse the students but the Applicant still did not enter the campus to invigilate as instructed.

59. In his defence the Applicant testified that he had checked the examination roster on 10 April 2018 and that he had not been scheduled to invigilate on 11 April 2018. Lehlakola had not told him to enter the premises in order to invigilate – but told him merely to enter the premises and he had not been scheduled to invigilate on 11 April 2018. The students had no problem with Lectures who were invigilating, the students would have a problem with the Lecturers if they all entered the campus. The Applicant was hedging his testimony as he went along. In one breath he stated that he was not scheduled to invigilate and in other he stated that he would have invigilated had Lehlakola told him to. What the Applicant was ignoring was the testimony of Lehlakola that he had addressed himself to the Applicant as an influential shop steward. The Applicant also ignored the testimony of Lehlakola that he had to call in the Police because the Applicant had said he and others feared for their lives. The Applicant also ignored the testimony of Lehlakola that even when the Police had arrived, he still did not enter the premises. I find the evidence of Lehlakola to be credible and acceptable as against the Applicant’s wavering and inconsistent testimony. The Applicant had said that the students would not interfere with any Lecturer who had to invigilate. In the light hereof one would have expected the Applicant to enter on the basis that he was going to invigilate. What the Applicant has not addressed was why did he and others fail to get inside the premises when the Police had arrived? Mofokeng was able to get in the premises of the campus and the students did not bother him and he eventually helped out with invigilation. The failure of the Applicant to enter the premises was linked to his failure to give effect to the instruction of Lehlakola. The Applicant acknowledged that Lehlakola was the campus manager and Chief Examinations officer. On the basis of the responsibilities of both the capacities of Lehlakola, he had lawful authority to instruct the Applicant to get inside the premises of the campus and to invigilate. I find that the Applicant failed to obey a lawful and reasonable instruction to invigilate on 11 April 2018. All his attempts did not establish any reasonable and lawful explanation for his refusal to obey Lehlakola’s instruction. On the basis before me I find that the Applicant grossly failed to obey a lawful and reasonable instruction of Lehlakola. It was reasonable on the part of Lehlakola to give the Applicant an instruction to invigilate at the examination that was going on at that time.

60. Examinations are an integral part of the education function that the Applicant has been employed to handle. Examinations are the indicator that indicate whether or not the student is making progress in whatever field/course he was studying. It needs an invigilator to oversee the writing of examinations in order to protect the integrity of the process and the event of writing credible examinations.

61. The charge against the Applicant was couched as follows:

Gross insubordination in that you fail to carry out a lawful order
or routine instruction without just or reasonable cause.

The charge related to the failure of the Applicant to invigilate on 11 April 2018. I have already indicated earlier that Lehlakolas order/instruction to the Applicant was lawful and reasonable. Insubordination on the part of the employee justifies dismissal if the insubordination was serious persistent and deliberate – Armitage Shanks SA (Pty) Ltd v Mnisi (1995) 61 ILJ 61 (IC).

In this matter the instruction to the Applicant related to the serious matter of invigilating the examinations. The Applicant was instructed by Lehlakola to enter the campus to invigilate. The Applicant responded to the campus manager that he and others were afraid to enter the premises because of the students who were outside of the campus premises and who had earlier ordered them out. Upon the reaction of the Applicant to the instruction Lehlakola called in the Police. The Applicant persisted in his failure to obey the instruction. After the students had been dispersed by the Police the Applicant persisted in not complying with the instruction. The refusal by the Applicant to take the instruction was very deliberate on his part. After he had complained about his safety he still did not obey the instruction when the Police were at the campus. Even after the students had been dispersed he still did not comply with the order. The non-compliance with Lehlakola’s instruction was gross and attracted the sanction of dismissal because it was a calculated breach by the Applicant of the duty to obey the employer’s instruction.

62. In my view the Respondent has established that the conduct of the Applicant was one that justified the sanction of dismissal. At no stage during the arbitration process did it appear that the Applicant was going to obey the instruction of the employer – the Applicant was bent on defying the authority of the employer over him. The fact that he was a shop steward should have been enough warning to the Applicant that he was openly defying the authority of the employer and that his conduct was destructive of the trust relationship between him and the employer over its members including himself.

63. The Applicant sought to make it an issue that the Respondent had called to the arbitration people who did not testify at the internal hearing. The Applicant also called such a witness. All those witnesses did not give evidence that impacted on the original decision arrived at during the internal hearing.

64. AWARD

64.1 I find that the DHET (Maluti TVET College) dismissal of P. P. Lephuthing with regard to charge 1 (insubordination charge) was procedurally and substantively fair.

64.2 I find that P. P. Lephuthing was not guilty of the incitement charge.

64.3 I confirm the dismissal of P. P. Lephuthing.

ELRC PANELIST: M. MOLOI
05 April 2023