ELRC76-23/24NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC 76-23/24NW

In the matter between

Kgalegi, Tebogo Applicant

And

Orbit College Respondent

ARBITRATION AWARD

The venue of Arbitration: Orbit College - Rustenburg

Date: 07 September 2023

Parties present:

Arbitrator: Mr C Khazamula
Applicant: Ms T Kgalegi
Employer’s Representative: Mr T Lesimola

DETAILS OF HEARING AND REPRESENTATION

1. The matter was an unfair dismissal dispute in terms of s191 (5) (a) (i) of the Labour Relations Act, 66 of 1995 and Part C of the Council’s constitution.
2. The dispute was set down for arbitration before me on 21 July 2023 and 22 August 2023 at the Respondent’s offices
3. Parties relied on a common bundle of documents as evidence. Parties further submitted closing arguments before 14 September 2023 as I directed.
4. The proceedings were digitally recorded.

ISSUE(S) TO BE DECIDED

5. I have to determine whether the Applicant’s dismissal was substantively fair or not.
6. The relief sought by the Applicant is reinstatement with back pay.

7. BACKGROUND TO THE ISSUE

8. The Applicant was appointed by Orbit Collect (“the Respondent”) in August 2012 in the capacity of Lecture – R191 Engineering Studies. Before the Applicant’s dismissal, she was earning a salary of R37 635, 16 per month.
9. The Applicant was charged on three (3) allegations of misconduct on 10 February 2023 . The Applicant did not attend the disciplinary enquiry scheduled on 20 and 21 February 2023 and the disciplinary enquiry was held in her absence.
10. Following the disciplinary enquiry, the Applicant was dismissed on all three (3) allegations of misconduct on 27 March 2012.
11. After her dismissal, the Applicant referred a dispute to the Council and I was appointed by the Council to arbitrate the dispute.
12. On 21 July 2023, at the initial arbitration proceedings, I adjourned the proceedings to provide the Applicant with an opportunity to prepare her case because she was not represented and did not have any witnesses including the bundle of documents to prove her case.
13. I have further advised the Applicant's arbitration process and the process to subpoena witnesses and evidence.
14. The arbitration was again set down on 22 August 2023 and the Applicant confirmed that she was ready to proceed.
SURVEY OF EVIDENCE AND ARGUMENT

The Respondent’s Testimony and Evidence

15. The Respondent’s witness Simon Makgakeng Letsoalo (“Letsoalo”) testified about charge 1. Letsoalo submitted that the Applicant was absent due to ill health from the year, 2022 to early 2023.
16. About Charge 1, Letsoalo testified that, during a meeting with his team members, after they came back from the college recess, it was proposed and agreed that they should visit the Applicant to provide support.
17. While they were planning to visit the Applicant, Letsoalo received an email (“Charge 1 emails”) from the Applicant. In that email, the Applicant demonstrated abusive and insolent behaviour by accusing Letsoalo of practising witchcraft and using satanic witchcraft on her.
18. The Applicant wrote that Letsoalo should not visit her for any reason professionally and personally and further accused him of having a history of sexual relations with minors who were still wearing school uniforms.
19. About Charge 2, Letsoalo submitted that he sent an email and a reminder email (“Charge 2 emails”) to the Applicant to request proof of sick leave from 2022 to January 2023 in compliance with the Respondent’s leave policy. The Applicant responded by sending an email to Letsoalo and copying other Respondent’s senior management employees, stating that she was directly refusing to submit any requested documents.
20. About Charge 3, Letsoalo testified that the Applicant was absent without authorisation on 27 January 2023, 30 January 2023 and 06 February 2023. Letsoalo relied on the attendance registers to prove the days that the Applicant was absent .

The Applicant’s Testimony and Evidence

21. About Charge 1, the Applicant testified that she was dismissed unfairly because Letsoalo was acting on emotions. Letsoalo was supposed to separate personal engagement from professional engagement. She did not want Letsoalo in her space because it was not part of her terms and conditions of employment. She could not speak to Letsoalo on his personal email because she knew Letsoalo’s work email only.
22. About Charge 2, the Applicant testified that she sent Letsoalo charge 2 emails in that she directly refused to send proof of incapacity as instructed by Letsoalo. She also copied Respondent’s senior managers in that email because she does not talk to them verbally other than in writing. She refused to send proof of incapacity because the HR Admin was not resolving her grievances relating to unfair deductions on her salary.
23. About Charge 3, the Applicant testified that there was no work schedule (timetable) because they did not do any teachings. If they do not do anything, they will leave work to go home. Letsoalo would have taken the work schedule when she wanted to sign.

ANALYSIS OF EVIDENCE AND ARGUMENTS

24. As indicated above, I provided the Applicant with the opportunity to prepare her case and call or subpoena witnesses including documents. The Applicant submitted that she wrote emails to some of the witnesses who may testify for her but she was unsure if they would appear in the arbitration proceedings. She further confirmed that she was ready to proceed.
25. It is important to note that the Applicant was dismissed in her absentia because she blatantly refused to participate in the disciplinary enquiry. I must first point out that the Applicant did not provide contrary evidence or prove the alleged unfair dismissal against her. She relied on her testimony.
26. About Charge 1, the Applicant did not dispute the Charge 1 email and her reasons was that this was a personal matter between her and Letsoalo however she conceded in cross-examination that her relationship with Letsoalo was only professional.
27. The language which the Applicant used in the charge 1 email was not that of a person of her stature considering that she was a Lecturer who also has the responsibility to guide learners on appropriate behaviours at their future workplaces.
28. I do not think anyone could understand or comprehend the Applicant’s choice of language she used to write an email to Letsoalo irrespective of whether it was personal or not. Such a personal attack and accusation of witchcraft were without cause and unimaginable in the workplace at the level of the Applicant.
29. I also do not understand why the Applicant attacked Letsoalo because Letsoalo and his colleagues wanted to do a noble thing by offering support to the Applicant during her time of need. The personal attack on Letsoalo was to a very great degree, extremely abusive with the accusations that the Applicant could not or did not substantiate.
30. The behaviour of the Applicant cannot not be tolerated in any circumstance irrespective of the reasons provided. It renders the employment relationship to be broken beyond repair. I don’t think the Respondent had any other options other than dismissing the Applicant. I, therefore, find that the Respondent’s dismissal in this circumstance was substantially fair.
31. About Charge 2, I find that the Applicant continued with her disrespectful behaviour to Letsoalo and more importantly to her employer. The Applicant did not dispute the refusal of the instruction. Again, the choice of words (“Directly refuse”) shows that the Applicant demonstrated an extreme level of disrespect to the authority of her line manager and other senior managers of the college including the college itself.
32. The Applicant’s reasons even if they were reasonable because she did not provide any evidence of the grievance, she ought to have followed the internal dispute resolution process. Despite the Applicant’s reasons, that did not give her a right or a license to disregard or disrespect the policies of the Respondent including instructions given to her.
33. The Applicant confirmed that she was provided with the rules of her employer and it was up to her to familiarise herself with those rules. The Applicant during clarity on this matter was evasive and attempted to demonstrate that she was not aware of the rules of the employer. There was no reason justifiable for the Applicant to refuse the instruction of the line manager. I, therefore, find that the Applicant’s dismissal was fair.
34. About Charge 3, I accept Letsoalo’s evidence that the Applicant was absent without authority. The work schedules are sufficient proof to prove that she was absent. In some instances, the Applicant signed and did not sign the work schedule on the same week which proves that she was absent. Her reasons for attempting to blame her line manager cannot be accepted. It was the duty of the Applicant to sign the attendance register to prove that she was present at work and she failed that duty. I, therefore, find that the Applicant’s dismissal was fair.
35. Lastly, the Applicant did not show remorse in the arbitration proceedings. During cross-examination, she did not see any wrong on her side and further confirmed that she could repeat the same misconduct. This clearly shows that the Applicant’s misconduct behaviour cannot be corrected and/or rehabilitated.
36. The employment relationship cannot be salvaged. The Applicant’s allegations of unfair dismissal were hopeless despite having been allowed to prepare her case. The Applicant’s conduct cannot be justified under any circumstances and the Respondent was fair in dismissing the Applicant.
37. In light of the above, I find that the dismissal of the Applicant by the Respondent was substantively fair.


AWARD

38. I, therefore, issue the following award;
38.1. The Respondent’s dismissal of the Applicant was substantively fair.
38.2. The ELRC is directed to close the file.

Chance Khazamula
ELRC Panelist
Date: 07 September 2023