ELRC502-20/21NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD POTCHEFSTROOM

CASE NO.: ELRC 502 -20/21NW
In the matter between:-

LESEDI SNAAR APPLICANT

and

DEPARTMENT OF EDUCATION AND TRAINING RESPONDENT

ARBITRATOR: Ramatobane Maodi
DATE OF AWARD: 08 May 2023

SUMMARY: Labour Relations Act 66 of 1995 –Section 191(1) [191(5) (a] – Unfair

dismissal related to misconduct.

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1. This arbitration matter was heard at Vuselela TVET College offices in Potchefstroom. The matter was part-heared on 13 October 2021 and concluded on 25 April 2023. The applicant, Lesedi Snaar (“the applicant”) was present and represented by Thando Makwetu, a Provincial Paralegal Officer from NEHAWU. The Respondent, Department of Education and training – North West (“the respondent”) was represented by Sifiso Hadebe, its Labour Relations Assistant Director.
2. Three (3) set of documents were entered into the arbitration and I marked them as follows:
Bundle A - The applicant ‘s bundle of documents from page 1 to 55;
Bundle R - The respondent ‘ s bundle of documents from page 1 to 39;
Bundle R1 - The respondent‘s bundle of documents from page 1 to 165.
3. The hearing was digitally recorded and hand written notes were also taken.
PRELIMINARY ISSUE
4. The applicant disputed that the Department of Higher education and Training was her true employer. She contended
that her employer was the College Council, which was disputed by the respondent. As a consequence a ruling to
the effect that the respondent , and not the College Council, was the true employer had been issued.

BACKGROUND TO THE DISPUTE
5. The applicant, Lesedi Snaar was employed by the respondent as from 03 March 2010 as a Lecturer. She held the position of a Lecturer when she was dismissed for an alleged misconduct related to offences on 27 October 2020. Her salary at the time of her dismissal was R19 782.25 per month.
6. The applicant declared a dispute at the Council alleging that she had unfairly been dismissed. The matter was
scheduled for a conciliation. As the parties were unable to settle their dispute, the Commissioner at the time issued
a ‘Certificate of Outcome’ to the effect that the dispute remained unresolved. The matter was set down before
me for arbitration.
7. The applicant was charged and dismissed for misconduct.
8. The parties signed and handed in a pre–arbitration minute in terms of which the applicant challenged the
substantive as well as procedural fairness of her dismissal.
9. The applicant sought retrospective reinstatement as a relief for what she perceived to have been her unfair dismissal.
ISSUE TO BE DECIDED
10. Whether the applicant’s dismissal was substantively and procedurally unfair. If I find that there was any unfairness, I
must determine the appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT
11. It is not the purpose nor the intention of this award to provide a detailed reproduction of all evidence submitted to
me during the arbitration (see Section 138(7)(a) of the LRA). I have, however, summarized the portions of
evidence that I considered relevant in making a determination in this matter.
THE RESPONDENT’S CASE
First witness, Eugene Kreeling in essence testified that:
12. He was the presiding officer at the disciplinary hearing of the applicant. Four charges were levelled against the
applicant. The applicant pleaded guilty on charge number one (1), charge number two (2) was withdrawn, and charge
number three (3) she pleaded not guilty and pleaded guilty on charge four (4). Charge number one (1) is a serious
and dismissal offence. Her offence was deemed as forgery or fraud because she was actually allocating students
marks they did not deserve because no scripts were marked.
13. The applicant was given opportunity to state her case and call witnesses. Her representative was speaking on her
behalf. The applicant was also given opportunity to submit mitigating factors, instead of submitting mitigating factors
, the applicant‘s union representative brought new evidence about another lecturer that also fabricated student marks.
14. During cross examination he further stated that he did not receive any mitigating factors from the applicant but the
applicant was given opportunity to submit mitigating factors.
Second witness, Willem Herburn Verwey in essence testified that:
15. He is employed by the respondent as a senior lecturer at NCV engineering and his responsibilities entails overseeing
lecturers , controlling files and verifying their marks. He referred to the report and findings about the applicant‘s files
that he gave to the applicant, campus manager and the HOD. According to the report, for each subject there is an
assessment file, subject file and portfolio of evidence for all students for the subject. In terms of the QMS there is a
table of contents of what must be in each file and they are able to control each file to see if it is up to standard with
what is supposed to be in the file. Under the portfolio of assessment files, there should have been six because there
were six subject, but only one file was available to be controlled. The applicant only submitted one file out of six.
Under assessment task, each task must have had a pre-moderation, analysis grid after students assessed, post
moderation and the record sheet with recorded marks. In the one file that the applicant submitted, moderations
were not signed off , there was no analysis grid and not all the marks were recorded on the record sheet.
16. He referred to section C of his report, under student portfolio of evidence, that zero (0) out of six (6) were submitted,
meaning he could not check the marks on the recording sheet against the scripts. After discovering such conduct by
the applicant , he then reported the matter to the HOD and campus manager. Submitting marks not reflected on
scripts is a serious misconduct as future of students is determined by the marks.
17. During cross examination he testified that he gave the report to the HOD with the intention of getting the correct
marks for the students.
Third witness, Nthabiseng Lynth Mofulatsi in essence testified that:
18. She is employed by the respondent as a campus manager and she is responsible for each and every activity that
takes place in the campus. The applicant failed to perform her duties as expected. One of the SRC members in the
class of the applicant informed the college principal that they were given marks and their scripts were not marked.
The college principal asked her about the complaint. She received a petition from the students that the applicant
was teaching that they were given marks but their scripts were not marked, and when she asked for the scripts,
she discovered that the scripts were not marked. When she confronted the applicant about the allegations, the
applicant told her that it was an agreement between herself and the students.
19. During cross-examination, when put to her that the applicant will testify that she saw the student petition against her
for the first time at the arbitration hearing , she stated the applicant ‘s version is not true. When put to her that the
applicant will testify that the petition was signed by staff members and not students , she stated that the applicant ‘s
version is not correct.

THE APPLICANT’S CASE
The applicant, Lesedi Snaar in essence testified that:
20. On 10 September 2019 she did not submit marks to her senior lecturer, Mr Verwy. She was not ready to submit
marks because her students were still to re-write the test and to submit assignment. On 10 September 2019 Mr
Verwy came to her class demanding marks and she explained to him that she was busy marking. He demanded the
record sheet and she explained that she was busy writing. He also demanded all the scripts for six (6) subjects that
she was teaching and she gave them to him. The marks on the record sheet referred to in the charge relate to the
first charge relates to the first test that the students were to re-test.
21. She was made aware of the petition against her by one of the receptionist discreetly. She them approached the
student about the petition and the students were surprised. The students informed her that they did not sign the
petition. She compared the signature on the petition with the student register and the signatures were not identical.
22. At the disciplinary hearing she was not given opportunity to testify . She was also not given opportunity to submit
mitigating factors.
23. During cross examination she testified that according to the academic year planner, she was late with the submission
of the marks . She stated that the college knew that she was teaching the subjects for the first time and was struggling
with the students.
CLOSING ARGUMENTS
24. The parties submitted their oral closing arguments and their arguments were also taken into account in making a
determination herein.
ANALYSIS OF EVIDENCE AND ARGUMENT
25. Section 188 (1) of the Labour Relations Act of 1995, as amended (the LRA), enjoins the respondent to prove
that there was a fair reason for the dismissal of the applicant , and that same was effected in accordance with a
fair procedure.
26. As far as the procedural fairness was concerned, the applicant contended in the pre – arbitration minutes, that her
dismissal was procedurally unfair because:
• The applicant was not afforded opportunity to state her side of her case and call witnesses;
• The applicant was not afforded opportunity to submit or submit mitigating factors.
27. From the evidence and documentary evidence submitted into the arbitration process, it was apparent that
the applicant was found guilty and dismissed on the strength of charge number one (1) and was given a written
warning and final written warning in respect of charge three (3) and four (4) respectively. Therefore that was no need
for the applicant to testify in respect of charge number one (1). Any challenge relating to any warnings is a disciplinary
action short of dismissal which may be challenged as an unfair labour practice dispute. Therefore the applicant‘s
challenge that she was not afforded opportunity to state her case is devoid of logic.
28. On applicant‘s contention that she was not afforded opportunity to submit mitigating factors, it reflects from the
transcribed record of the disciplinary hearing that the chairperson from time to time afforded the applicant opportunity
to submit mitigating factors but the applicant ‘s union representative failed to take advantage of the opportunity. It
appears from the transcribed record that that instead of presenting mitigating factors, the union representative chose
to deal with issues unrelated to mitigating factors.
29. I could therefore not fault the respondent and conclude that the dismissal of the applicant was procedurally fair.
30. The applicant challenged the substantive fairness of her dismissal and disputed the allegation that she submitted
the record sheet for 2 subjects with marks for four (4) assessments for the level four (4) IEC students without marked
evidence.
31. The respondent‘s witness, Ms Mofulatsi testified that one of the SRC members in the class of the applicant informed
the college principal that they were given marks and their scripts were not marked. The college principal asked her
about the complaint. She received a petition from the students that the applicant was teaching that they were given
marks but their scripts were not marked, and when she asked for the scripts, she discovered that the scripts were not
marked. When she confronted the applicant about the allegations, the applicant told her that it was an agreement
between herself and the students. This evidence was not disputed by the applicant.
32. According to the respondent version, in particular Ms Mofulatsi and Mr Verwey, the applicant submitted record sheet
with marks without marked scripts. The applicant‘s version to the contrary was that she attached the scripts to the
record sheet. The scripts were taken away from her by Mr Verwey on 10 September 2019. The marks on the record
sheet pertains to the first test that the students were to re-test.
33. After a careful consideration of competing versions, I am persuaded by the respondent‘s version that the applicant
submitted record sheet with marks without marked scripts. Ms Mofulatsi‘s evidence that she received a petition
from the students that the applicant was teaching that they were given marks but their scripts were not marked was
corroborated by a signed petition submitted into the arbitration process. Mr Verwey referred to his report
in the arbitration process which reflect that the applicant submitted record sheet with marks without any marked
evidence. The documentary evidence put up by the respondent was convincing and overwhelming in its effect.
34. In Compus Group Southern Africa (Pty) Ltd v CCMA and Others (JR 633 / 16) [2018] ZALCJHB 49 (handed
down on 9 February 2018) the Court pointed out that once the employer provides prima facie proof of misconduct as
alleged , the evidentiary burden shifts to the employee to prove his own defence . If the employee then fails to put up
a defence or fails to prove his defence, the employer ‘s prima facie proof of misconduct becomes conclusive proof ,
and the employer has then discharged the overall onus that always rested with it.
35. According to the applicant‘s own evidence during cross examination she testified that according to the academic
year planner, she was late with the submission of the marks . She stated that the college knew that she was teaching
the subjects for the first time and was struggling with the students. It is probable that this may have been a
contributory factor to the applicant submitting record sheet without marked scripts.
36. In NUM and another v CCMA and others (JR2242/18) [2022] ZALCJHB 283 (handed down on 10 October 2022)
the Court reaffirmed at paras [24] and [25] the necessity of putting a version to witness:
“It is trite that evidence that was not put to an opponent under cross-examination cannot be relied upon. In
Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), the LC held that:
“[28] …It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first
cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an
opportunity for explanation. Similarly, if the Court is to be asked to disbelieve a witness, he should be
cross-examined upon the matters that it will be alleged make his evidence unworthy of credit.
37. The probabilities are against the applicant‘s version being reasonably possibly true when the totality of evidence is
considered. The applicant‘s version that Mr Verwey demanded and took record sheet with marks and marked scripts
in respect of the students ‘s first test on 10 September 2019 was not put to any of the respondent ‘s witness.
38. Furthermore, the applicant‘s version that she became aware of the petition from the secretary discreetly and dispute
about the students signatures on the petition was also not put to the respondent ‘s witness. The version that the
applicant put to the respondent ‘s witness was that she became aware of the petition for the first time at the
arbitration process.
39. The inescapable conclusion is that the applicant was opportunistically fabricating a defence as an afterthought. The
applicant‘s version was not only devoid of the truth and credibility, but is also rejected as falsehood. I therefore
conclude that the respondent was able to prove, on balance of probability, that the applicant submitted the record
sheet for 2 subjects with marks for four (4) assessments for the level four (4) IEC students without marked
evidence.
40. In asserting as she did in the record sheet with marks without any marked evidence, the applicant falsely represented
the true state of the students ‘s marks. The misrepresentation of providing student with marks without any marked
scripts would have succeeded if it was not discovered. In doing so, the applicant acted fraudulently.
41. The indisputable facts reveal that the applicant set out to deceive and wove her web accordingly. She almost achieved
her goal. She has now become entangled in a web that she alone devised and cannot now be heared to complain of
the consequences that must follow.
42. Dishonest conduct, deceitfully and consciously engaging in activities against the interests of the employer,
inevitably poses an operational difficulty. The employer thereafter will be hard pressed to place trust in such an
employee. It will be difficult going forward for any task involving a measure of discretion or reliance to be
entrusted to the deceitful Employee. The operational requirements of the employer alone, therefore, may very
well justify the dismissal - Autozone v Dispute Resolution Centre of Motor Industry and others (JA
52/2015) [2019] ZALAC 46; [2019] 6 BLLR 551 (LAC); (2019) 40 ILJ 1501 (LAC) (handed down on 13
February 2019).
43. In Impala Platinum Ltd v Jansen & others (2017) 38 ILJ 896 (LAC) the Labour Appeal Court found that it is
acceptable in law that where an employee is found guilty of gross misconduct it is not necessary to lead evidence
about a breakdown in the trust relationship as it cannot be expected of an employer to keep a delinquent employee
in its employ.
44. In Department of Labour v GPSSBC (2010) 31 ILJ 1313 (LAC) the Labour Appeal Court confirmed the principle
that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge
the wrongness of his/her conduct.
45. The applicant‘s actions go to the root of an employment relationship deserving of the severest sanction. It would
be unfair to expect the respondent to retain the applicant in its employ where they had not only displayed serious
misconduct in complying with workplace rules. The applicant also contravened the duty of good faith by submitting
record sheet with marks without marked scripts.
46. The applicant thereby compromised the integrity, fairness and honesty within the respondent‘s academic
activities of students.. After taking into consideration the totality of evidence before me, I found that the respondent
has proved on balance of probability that the dismissal of the applicant was procedurally and substantively fair.
Therefore the dismissal of the applicant was justified and appropriate in the circumstances.
47. In the circumstances the award that I make is the following;

AWARD

48. The dismissal of the applicant, Lesedi Snaar, was both procedurally and substantively fair.
49. The applicant‘s case is dismissed.
50. I make no order as to costs.

Ramatobane Maodi
ELRC Panelist