ELRC568-21/22WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC568-21/22WC

In the Arbitration matter between:
NAPTOSA obo John Lodewyk Von Landsberg
Applicant
and
The Department of Higher Education and Training (Boland TVET College) Respondent

ARBITRATION AWARD

Venue of arbitration: Online (Via Zoom)
Date: Over several days between 11 April 2022 and 7 September 2023.

Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: Mr. Xolile Zigebe (NAPTOSA Official)
Applicant: Mr. John Lodewyk Von Landsberg
Respondent’s Representative: Mr. Mario Boezak (Assistant Director: Labour Relations)

DETAILS OF HEARING AND REPRESENTATION

[1] An arbitration hearing was conducted over several days between 24 February 2022 and 7 September 2023. The arbitration hearing was conducted in terms of section 191(1) [191(5)(a)] of the Labour Relations Act, 66 of 1995 (the LRA), as amended, and finalized on 7 September 2023. The parties submitted their Heads of arguments by latest 20 September 2023.
[2] The Applicant, John Lodewyk Von Landsberg, was represented by Mr. X. Zigebe from NAPTOSA, a registered trade union. The Respondent, The Department of Higher Education and Training (Boland TVET College) was represented by Mr. M. Boezak, the Respondent’s Assistant Director: Labour Relations.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.

The following arose from the Pre-Arbitration meeting conducted between the parties:
[4] “COMMON CAUSE FACTS

4.1 The Applicant’s monthly salary is R37 899.57 as on 15 October 2021.
4.2 Prior to his dismissal the Applicant was appointed a Programme Manager: Engineering and Related Design on a Post Level 2.
4.3 On 01 January 2008, the Applicant was appointed at the Worcester Campus as College Council staff member.
4.4 On 01 April 2009, the Applicant was appointed on a contract basis by the Western Cape Education Department as a Post Level 1 educator.
4.5 0n 01 July 2009, the Applicant was appointed permanently by Western Cape Education Department on a Post Level 1.

4.6 On 13 June 2012, the Applicant was permanently appointed by the Boland College as Post Level 2 educator.
4.7 14 September 2012 Mr. von Landsberg has been appointed in a permanent WCED Post Level 2
4.8 On 11 November 2015, he migrated as a Programme Manager, Post Level 2 at from the Western Cape Education Department as a Persal paid official to the department.
4.9 The Applicant possess a N6 National Diploma Mechanical Engineering, also a B.Ed.HONS, and Masters in Education.
4.10 The Applicant no longer taught Welding NCV L2-4, since Boland College discontinued the subjects. He taught Maintenance Management: Farming N4 and N5, Life Orientation L3, (and various other subjects as requested by the campus manager from time to time)

4.11 The Applicant possess a Master in Education degree in Comparative Studies.
4.12 The Applicant possess a red seal in welding, obtained on 07 December 2010.
4.13 The Applicant never managed the Centre of Specialisation since 2017, Mr. Cordier, the campus manager at the time took up the responsibilities to manage the project on campus.
4.14 The Applicant received his full salary and benefits whilst waiting on his disciplinary
hearing outcome until 15 October 2021 when his salary was stopped with all benefits, medical aid and pension deductions.
4.15 The Applicant received his full salary and benefits whilst waiting on his appeal outcome until 15 October 2021.

4.16 Boland College offered three new programmes since the start of the National
Certificate (Vocational) in 2006. Boland College appointed three Programme Managers to each manage one of these new NC(V) Programmes which will run on three different levels, namely Level 2, level 3 and level 4. These three programmes were commonly named as “Mechanical”, “electrical” and “Civil”. Although the correct names were, Engineering & Related Design NC(V), Electrical Infrastructure Construction NC(V) and Civil Engineering and Building construction NC(V).
4.17 The duties of Mr. von Landsberg include the management of the Mechanical
Engineering and Related Design Programme in the National Certificate (Vocational) [NCV] qualification. This includes the managing of all the Mechanical (Vocational) subjects in the programme on three levels, level 2-4, but excludes the “fundamentals subjects, Mathematics, language and Life Orientation. There are separate Programme Managers appointed to only manage the Fundamental subjects. When a student successfully completes all subjects on Level 2, 3 and 4 he/she will receive the qualification NC(V) Engineering & Related Design Programme.
4.18 Mr. Cordier had an informal discussion with Mr. von Landsberg on 16 May 2018 again about the Project Managing of the CoS project on campus and Mr. von Landsberg made it clear again, that he will not be available to manage the CoS project, because it will not fit into his current position and will have a direct impact with his lecturing and Programme Management duties on campus. Mr. Cordier accepted and respected Mr. von Landsberg’s decision, but Mr. von Landsberg contacted his Union and corresponded with Mr. Lee Hoffman (NAPTOSA representative) to discuss the matter and asked for legal guidance, in case Boland College forces him to manage the CoS project. Mr. von Landsberg’s Union suggest that he should made his choice not to manage the CoS clear to Mr. Cordier in writing and not only verbal.

4.19 Mr. von Landsberg send a mail to Mr. Cordier indicating in writing that he is not willing to manage the CoS on 18 May 2018, Mr. Cordier didn’t reply anything to Mr. von Landsberg. Mr. von Landsberg also CC’d Mr. Peters and Mr. Peters red the same email on 18 May 2018 at 07:00 pm, without replying anything to Mr. von Landsberg either.

4.20 After the e-mail Mr. von Landsberg mailed to Mr. Cordier (campus manager) and Mr. Peters (academic Head), Mr. Cordier and Mr. Peters arranged a meeting with Mr. von Landsberg on 23 May 2018 to discuss again the possibility of Mr. von Landsberg to become the dedicated CoS Project manager, since Mr. Cordier is also struggling to manage the CoS. Mr. von Landsberg also invited his Union Representatives of NAPTOSA, Mr. Lee Hoffmann and Mr. Xolile to this meeting. At this meeting Mr. Peters didn’t allow Mr. von Landsberg’s Union Representatives to enter the meeting room and they were sent to wait in the hallway next to the meeting room, outside.

4.21 Mr. Cordier and Mr. Peters asked Mr. von Landsberg again to really reconsider his decision not to manage the CoS project, since this exposure will mean a lot for his career in future promotion posts and the exposure will mean a lot for his CV etc. But Mr. von Landsberg made his choice clear again that he is not currently available and willing to manage the CoS since it will have a direct impact with his current duties and responsibility and he is also not seeing himself in a promotion post in the near future and that he is very happy as the Programme Manager for NCV ERD.

4.22 At this point, Mr. Cordier and Mr. Peters asked Mr. von Landsberg to really reconsider, since the programme, NCV ERD, he is managing, might be phased out and then he will be without a job. But Mr. von Landsberg replied that when and if his programme be phased out, then he will cross that bridge at that time. Both Mr. Cordier and Mr. Peters accepted and respected Mr. von Landsberg’s decision not to manage the CoS at this meeting and during the disciplinary hearing, Mr. Peters testified that he accepted Mr. von Landsberg’s choice not to be the manager at this meeting. From 23 May 2018 until November 2019 Mr. von Landsberg were not asked again to manage the CoS centre and only manage his ERD NCV programme.”

[5] “FACTS IN DISPUTE
5.1 Whether the Applicant was given an instruction by Mr Matthee on 18 June 2020 to sign the new duties.
5.2 Whether the Applicant was given any actual instructions and directives in managing the CoS or any other occupational/skills project or new responsibilities between the meeting of 3 December 2019 and 18 June 2020 by his acting Campus Manager, Mr. Matthee as requested by the Academic Head, Mr. Peters on 3 December 2019

5.3 Whether the duties and responsibilities on the Post Level 2 advertisement Mr. von Landsberg applied for in 21/02/2012 included any Occupational/Skills project management responsibilities.

5.4 Whether the appointment letter received 11 November 2015, only includes one programme named Mechanical Engineering and Related Design NCV.

5.5 Whether the Applicant is better qualified than the rest of the Programme Managers and staff working at Boland College. Worcester campus to manage the Centre of Specialisation.

5.6 Whether the appointed Programme Manager: Occupational/Skills, Mr. Callie Herbst has been asked to help in the managing of the CoS occupational projects.

5.7 Whether Boland College’s policy for the planning, implementation, maintenance, finalization, review and improvement of all Occupational and skills projects and programmes are the responsibility of the Senior Manager: Education and Training (Occupational) and Programme Managers: Education and Training (Occupational).
5.8 Whether the Gold Standard for the implementation of the CoS projects in colleges requires a “dedicated, focused” Project Manager.

5.9 Whether during the “CoS readiness meeting” the decision was taken that the Applicant will not manage the CoS project on campus, but the Campus manager, Mr. Cordier will resumes those duties on 4 August 2017 together with the Occupational Team with the Occupational Team Convener, Mr. Ettiene Nel (SAIW, Project Manager to CoS

5.10 Whether at the meeting on 13 March 2018 the dedicated Campus Project Manager was decided again to be Mr. Cordier, the Campus Manager and not the Applicant.

5.11 Whether the Applicant volunteered to Manage the CoS in a meeting 13 November 2019, but with certain changes to his conditions of service and Mr. Peters accepted the request and asked Mr. Cordier to start a “negotiations document”.

5.12 Whether the “negotiations document” was designed by Mr. Cordier and discussed with the Applicant on 26 November 2019 and certain requests was made.

5.13 Whether Mr. Peters suddenly collapsed the “negotiations document” between the Applicant and Mr. Cordier on 3 December 2019.

5.14 Whether the CoS is classified as an Occupational project by DHET
5.15 Whether Mr. Bradley Le Roux, the appointed facilitator and Boland College Council staff member for the CoS were asked to help manage the CoS Welding Centre.

5.16 Whether Mr. Bradley Le Roux, the appointed facilitator and Boland College Council staff member for the CoS is better qualified to manage the CoS than the Applicant.

5.17 Whether the Applicant was capable to manage the Centre of Specialisation.

5.18 Whether the Applicant have taught Maintenance Management Farming as a subject before 2019.

5.19 Whether the Job Description dated 2012 or the one signed on 06 March 2020 is the current version.

5.20 Whether Mr. Matthee (acting campus manager) did mail the Applicant a new Job description on 6 March 2020 to add to his different Subject files for DHET monitoring purposes.

5.21 Whether the Job Description dated 2012 is a generic Job description, is incomplete and signed only for SABS ISO 9001 purposes.

5.22 Whether the Job Description dated 2012 is signed as an “outdated” and “obsolete” document just as an “exercise”, thus not an officially accepted document.
5.23 Whether both Job Descriptions dated 2012 and 6 March 2020 included any CoS Project responsibilities as well as the managing of subjects and projects falling under other Programme Managers.

5.24 Whether the Applicant managed any Occupational Programmes since 20 August 2012 as per his evenly signed Job Description.

5.25 Whether the Applicant only taught National Vocational Programmes, NCV and Nated.

5.26 Whether the Applicant can be expected to manage Occupational Programmes of the Centre of Specialisation without discussions if not appointed to do so.

5.27 Whether the Applicant can be expected to manage other subjects or projects within other programmes or departments, where there are already Programme Managers appointed to manage it.

5.28 Whether the Applicant can be expected to manage other staff, supporting staff, workshop assistants, facilitators in occupational projects that resorts under a different organogram structure than what the applicant is appointed in and that resorts in different departments or programmes with other Programme Managers appointed to manage them.
5.29 Whether the Post Provisioning Norms had any impact on the position which the Applicant held.

5.30 Whether the Post Provisioning Norms would have had any impact on the position which the Applicant held in future, if the Applicant’s responsibilities and duties would have changed from NCV/NATED to mostly Occupational/Skills project management.

5.31 Whether the PPN only allows lecturers to migrate to the new DHET structure that serve in the NCV and NATED/Report 191 programmes.

5.32 Whether the PPN does not allow lecturers to migrate to the new DHET structure that works within occupational/Skills projects.

5.33 Whether the two Education Labour Relations disputes related to his refusal to manage the Centres of Specialisation.

5.34 Whether the Applicant has less subjects and students compared to other Programme Managers at the Worcester Campus.

5.35 Whether the new list with “proposed responsibilities” handed to the Applicant on 18 June 2020, was the very first time the Applicant saw the new duties and responsibilities and whether it included duties the applicant was never before used to or responsible for.
5.36 Whether Mr. Matthee, acting campus Manager, gave Mr. von Landsberg any chance to speak and explain his concerns with the new “proposed responsibilities” given to the Applicant by Mr. Matthee in the meeting on 18 June 2020.

5.37 Whether prior consultations were held with the Applicant prior to 18 June 2020 regarding him managing the Centre of Specialisation OR any of the new duties listed in the document asked to be signed.

5.38 Whether consultations were held with the Applicant after the Applicant received the new list with duties and responsibilities with a new programme name, on 18 June 2020 regarding the duties and responsibilities on the new list.

5.39 Whether the Applicant have suffered any prejudice due to the delay in receiving the outcome of the hearing.

5.40 Whether the Applicant have suffered any prejudice due the delay in finalising the appeal timeously.

5.41 Whether the Applicant could be dismissed for not immediately signing a new list of duties and responsibilities without discussions thereof.

5.42 Whether the trust relationship was broken.
5.43 Whether the delay of the disciplinary hearing outcome was procedural correct.
5.44 Whether the delay of the appeal process by the department was procedural
correct.

5.45 Whether the applicant’s decision not to sign the new duties and responsibilities was “unreasonably”.

5.46 Whether the applicant “did not perform” any of the duties he was appointed to do from 2012 to 18 June 2020.

5.47 Whether the name “programme manager: Mechanical Engineering studies” in the charge is the correct Programme name the applicant has been appointed for.

5.48 Whether the “numerous consultations” referred to in the charge, included mostly
informal discussions without any outcomes.

5.49 Whether the Boland College interpretation and application of PPN is correctly
applied

5.50 Whether the Applicant tried numerous times to engage with his managers and
HR department without any success, requesting feedback and discussions
asking to explain his uncertainties regards the PPN structure, the “generic” job description 2012, the new job description 6 March 2020, managing subjects and programmes falling under other Programme Managers and whether the CoS referred to in the new list of duties and responsibilities included the new Automotive SETA project.”

[6] “ISSUES TO BE DETERMINED BY ARBITRATOR
6.1 The Arbitrator is required to determine whether the dismissal was procedurally and substantively fair.
6.2 The Arbitrator is also required to determine the whether the harshness of the internal disciplinary hearing outcome is fair given the circumstances of the case.”

ISSUE TO BE DECIDED
[7] I am required to determine if the dismissal of the Applicant was substantively and procedurally fair or unfair, and, if I find that it was unfair, I have to determine the appropriate relief.
[8] The Applicant sought to be reinstated retrospectively in the event that I find in his favour.
Issues in dispute
[9] I have noted that the pre-arbitration meeting minutes were extensive and it
appeared as if parties were using it as either opening statements, or as an indication of their evidence to be led, or to guide the commissioner in terms of what the analysis should all be about. That is not the purpose of narrowing the issues in dispute. In addition to what was discussed by the parties during the pre-arbitration meeting, the Applicant party placed the following in dispute at the start of the arbitration proceedings:
[10] The Applicant challenged the substantive fairness of his dismissal, as well as
procedural fairness. Procedural fairness based on what was stated during the pre-arbitration meeting.

[11] In respect of substantive fairness, the Applicant challenged the following:
11.1 Contravention;
11.2 Existence of a rule or standard;
11.3 Awareness of a rule or standard;
11.4 Validity or reasonableness of a rule or standard
11.5 Appropriateness of the sanction.
11.6 Inconsistency in that the job descriptions of Mr. Baxter and Mr. Uys were adapted but the job description of the Applicant was not adapted. The applicant was rather dismissed.

Common cause issues
[12] The following were regarded as common cause between the parties at the start of the arbitration proceedings (in addition to what was discussed during the pre-arbitration meeting):
a) The Applicant was dismissed by the Respondent on 4 October 2021;
b) His working hours were from 7 hours per day, 5 days per week from Monday to Friday (35 hours per week);
c) The Applicant enjoyed institutional closure period and he was paid during that period.
BACKROUND
[13] The Applicant referred an alleged unfair dismissal dispute to the ELRC (the Council). The arbitration proceedings were conducted over several days. Both parties submitted heads of argument in writing by latest 20 September 2023.
[14] The Applicant was charged and dismissed for:
“Gross insubordination in that on / about 18 June 2020 you unreasonably refused to accept and perform the duties of Programme Manager (Post level 2) Mechanical Engineering studies despite numerous consultations with your superiors herein.”

SURVEY OF EVIDENCE AND ARGUMENT

[15] The existence of the dismissal was not disputed and as such the Respondent bore the onus to prove that the dismissal was fair (Section 192(2) of the LRA).
[16] All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this Award, (Section 138 of the LRA, as amended).

THE RESPONDENT’S EVIDENCE AND ARGUMENTS

[17] The Respondent submitted a bundle of documents which I admitted as Bundle “R” (hereinafter referred to as “R”), consisting of 187 pages. [pages 184 to 187 were submitted on 11 March 2023].

Mr. Brian Peters testified under oath as follows:

[18] He was the Deputy Principal – Academic Services. All academic staff reported to him. He stated that Worcester campus was one of the 5 campuses of the Boland College. The Applicant was the Programme Manager for Mechanical Engineering studies. Mechanical Engineering covered all mechanical trades and that was the Applicant’s scope of work. Programme managers are responsible for the entire scope of mechanical engineering. The Applicant was responsible for the motor mechanics program as well as the welding program. The Applicant’s duty was to oversee it, although there were also other staff members.

[19] Page 138 of “R” was an email dated 18/06/2020 at 11:32AM, which he (Peters) received from Mr. Matthee. The e-mail of Matthee stated the following:
“Subject: Wiekus Von Landsberg
Attachments: Academic Planning Meeting; Proposed Responsibilities – W Von Landsberg 2020

Dear Mr. Peters
I had a meeting with Mr. Von Landsberg to discuss his PM duties. We started a bit early, 10:56 but the meeting lasted only till 11:06 at which time I stopped the meeting.
Mr. Von Landsberg refused to accept the document which I presented to him, saying that it comes down to changing his post. He never even looked at it.
I stopped the meeting when Mr. Von Landsberg produced the same documents that he presented at the disciplinary hearing (correction: “grievance hearing”) the last time in Ms. Coetzee’s office. He is of the opinion that the issue about his PM duties is still ongoing and differed from me when I informed him that it has been resolved.

I await your further advise on this matter.
Regards
Derick Matthee
Campus Manager”

[20] The Applicant refused to accept the document they have compiled to clarify his duties as Programme Manager, which was the document that Matthee presented to the Applicant. The Applicant was of the view that there was another job description he signed. Peters stated that when he investigated, he got hold of a signed job description which clearly indicated the duties of the Applicant. Peters stated that the Applicant didn’t want to accept that he was responsible for the quality of occupational programs. Peters stated that it was not additional duties. It was duties he was supposed to perform. The Applicant refused and stated that it was not part of his duties. The Applicant only wanted to perform the duties for Programme Manager – Automotive, and nothing else. Peters stated that the stance the Applicant took was wrong.

[21] Page 89 to 94 of “R” was the actual job description which the Applicant signed on 20/08/2012 for the position of Programme Manager: Mechanical Engineering (Afrikaans version, but translated to English on pages 95 to 99).
The duties include:
“Occupational Programmes
Manage and implement occupational programmes as per the strategic plan of the college as in a multi-campus environment. Responsible for the specific requirements of the SETA’s, SAQA and Boland College in light of quality assurance and that implementation is adhered to.”

[22] Peters stated that the only thing not mentioned in the document is the Centre of Specialisation (“CoS”). The CoS was not in existence at the time the document was drafted. Government identified 13 trades to be offered at the 26 colleges. Government funded the establishment of the CoS and machinery and equipment were bought by government. The quality of the teaching was the Applicant’s responsibility just as it was his responsibility when he was doing it for the National Certificate Vocational [“NC(V)”]. Peters stated that the other job description which the Applicant signed on 6/03/2020 was not valid, because it was not signed by the Applicant’s line manager.

[23] Peters stated that during the time when the Applicant wanted them to discuss his job description, they were under the impression that the Applicant did not have a job description. They therefore compiled page 113 of “R” in order to explain to him his duties. Page 113 stated the following under Centres of Specialisation (CoS):
- Managing the implementation of NOCC (which would be the implementation of the curriculum under the CoS)
- Quality assurance of academic programme
- Managing of facilitators / apprentices in the programme
- Managing of workshops assistants
- Integrated Quality management systems (IQMS) of facilitators and Performance management system (PMDS) of workshops assistants
- Oversee maintenance of workshops / equipment as per maintenance plan in conjunction with lecturers / head office
- Managing of learning material in conjunction with facilitators
- Managing the procurement of consumables in conjunction with lecturers
- Ensure that facilitator / placement officer visit companies where students are placed on a regular basis
- Ensure that the placement officer(s) on campus recruits learners / apprentices
- Managing where applicable the trade testing function

[24] Peters stated that the document did not really differ from the Applicant’s job description. It was just that they were not aware of the existence of the 2012 job description. Peters stated that he became aware of the 2012 signed job description when he visited the HR department and asked for the Applicant’s file. When they showed him his file, it contained the 2012 job description.

[25] Peters stated that the welding programme that was offered at the college was phased out and the Occupational certificate: welder was the new programme. The college was one of the colleges that was identified to offer the programme. They had involved the Applicant with the planning of this since 2017. During 2018 they have established everything for offering the programme. During 2018 they’ve experienced problems with the Applicant whereby the Applicant said it was not part of his duties. The Applicant said he was prepared to do the project management. During 2019 they had to implement the offering of the programme The Applicant refused to perform the tasks for the entire year and even during 2020. Peters stated that he had to aske other people to assist, even when it was not their duties. He stated that it was the duties of the Applicant. He stated that he told the Applicant that the request for him to do what he was supposed to do was reasonable. The Applicant refused to take up his duties.

[26] Peters stated that the new qualification was rolled-out at the Worcester campus only. The Applicant was the Programme Manager for Mechanical studies. The welding programme was rolled out and it was part of the Applicants responsibilities. Peters stated that the Applicant was a qualified Fitter & Turner and he was also a qualified Welder. He was also a moderator and assessor. He stated that the Applicant had all the experience required to handle the duties as Programme Manager for that roll-out / welding course. The Applicant also had the required trade experience.

[27] Page 141 of “R” was an email the Applicant wrote to Mr. Matthee on 28/06/2020 and Peters was copied in the email. The email stated the following:

“Dear Mr. Matthee
I am very unhappy about our “meeting” this morning. The manner in which you led the meeting, without listening to me or to look at my documents. As in the meeting with you sir, I confirm that I am not willing to sign or to accept a new document with new duties without a proper process. The reason is that I am not willing to sign or accept to change my post. I am appointed as Programme Manager: Mechanical Engineering and Related Design (NCV) and not to manage other programmes, occupational, skills, etc. I am post level 2 and a full-time lecturer. I have all the necessary evidence and documents to substantiate all my allegations, if somebody is willing to look at it.

I am also aware of the PPN and it is very clear that we who are transferred over to the new structure must be done according to point 5.2.1.4 in “an open and transparent procedure should be followed.” And according to point 8 “Dispute resolution”, I am entitled to disagree with the restructuring of my current duties and responsibilities and there is a specific procedure that must be followed, see point 8 if I am unhappy, my proposal is that we discuss the restructuring of my post.

According to the PPN, all who are involved, are Ministerial Approved Programmes. Only report 191 and NC(V) courses, point 5.2.1.4 “only staff offering Ministerial Programmes will be placed on the new standardized ministerial college structure” also point 5.2.1.3 “Staff only offering Non-Ministerial (Occupational / Skills programmes) cannot be placed.” There are already sufficient structures in place, staff and managers who are already managing the duties and responsibilities that MR Peters want to impose on me.

With reference to my grievance against Mr. Peters, the ELRC could not come to a conclusion because the ELRC have no mandate. This was exactly my grievance against Mr. Peters because I am accused of refusal of duties, while I am dutifully complying with instructions.
Regards
Wiekus Von Landsberg (M.Ed)
Programme Manager
Mechanical Engineering studies
Boland College”

[28] Peters stated that the Applicant was a full-time lecturer, but with reduced hours to allow for his other duties. Peters stated that page 144 of “R” is a document that was drafted to show how the previous programme had been phased out as the number of students reduced from 27 in 2014 to only 6 in 2015. They started phasing out the old welding programme and decided to bring in the “CoS”. They had 20 learners in 2019, 24 in 2020 and 23 in 2021. The 23 learners were busy with their trade test. The Applicant had to take responsibility for that programme, but he didn’t.

[29] Peters referred to page 145 of “R”. He stated that it was a document drafted based on the Applicant’s lecturing timetable. He had a number of free periods which he could use to manage the new qualification. He had in total 24 periods per week available that could be allocated to the new programme (“CoS”). The Applicant was teaching for about 15 hours per week, which meant that he had around 20 hours available to manage other programmes (management duties), after the 5 hours of lunch per week had been deducted. Peters referred to page 146 of “R”. He stated that it was a document compiled to do a comparison of the Applicants contact time (lecturing time) with students, compared to other Programme Managers. The Applicant had the least amount of contact hours, which meant that he had more time available to do fulfill the management function, compared to the other people. The Applicant had 15 contact hours per week while the PAM requirement was around 35 hours per week. The Applicant had 4 staff members reporting to him and he was supposed to have more, but due to his refusal he did not have the others reporting to him.

[30] He used the available time for the management of certain lecturing personnel. He did not use it for the management of the “CoS” while he could have done that. In other words, he could have utilized the 15 available hours to also manage the “CoS”. Peters referred to page 148 of “R”. He stated that the following was duties which the Applicant were supposed to do but he did not:
“5. Liaison with external stakeholders (employers);
6. Manage workshops / kitchens hospitality and staff;
7. State other: evening classes quality assurance.

[31] Peters referred to pages 149 to 150 of “R”. He stated that Mr. Andrew Joseph was one of the previous Programme Managers at the College. Joseph was overseeing 10 staff members and a workshop Assistant. The Applicant had less people to verse. Joseph also had more teaching hours compared to the Applicant. Joseph was also overseeing a lecturer on another campus, which was not a duty that the Applicant had.

[32] The Applicant had no staff reporting to him, because of his refusal. He also refused to do what was called “across campus” duties (page 147 of “R”). Peters referred to page 49 to 52 of “R”. It was the Post Provisioning Norms (“PPN”) Policy for Technical and Vocational Education and Training (TVET) Colleges. The Department of Higher Education and Training (DHET) allocated a number of posts the college had to have in its structure. It was negotiated with the trade unions and agreement was reached on how colleges had to implement. Peters stated that the PPN did not have any effect on the Applicants post or his job description.

[33] Pages 53 to 57 was the strategic plan of the DHET for the years 2020 to 2025. Page 54 were National targets set for colleges in terms of a requirement of student numbers increasing as the Department wanted an increase as per set targets. The DHET provided a layout of programme costs for technical and vocational education and training colleges in terms of how much funding the DHET would provide to colleges. Peters stated that he had shared this information with the Applicant (pages 58 to 59 of “R”). When the “CoS” was rolled out, the Programme Manager was supposed to assist with all preparation until roll-out time. After that he had to continue with the programme management duties of the “CoS” programme. Peters stated that nothing was voluntarily and that it was mandatory. The management function was just replacing the previous work which the Applicant had to fulfill on the courses that was discontinued.

[34] Peters stated that the Applicant was only managing the NC(V) programme because he refused to manage the “CoS”. Page 69 of “R” was White Paper for post-school education and based on the “CoS”. It was published in 2014. It stated the following on page 69:
“The CoS programme is a DHET initiative designed to meet two objectives simultaneously: firstly, to address the demand for priority trades needed for the implementation of government’s National Development Plan in general and its National Infrastructure Plan more particularly; and secondly to contribute towards the building of the capacity of its public Technical and Vocational Education and Training (TVET) College system to deliver trade qualifications with employer partners. The latter is in line with the Minister of Higher Education and Training’s “White Paper for Post School Education: Building an Expanded, Effective and Intergrated Post -School System”

[35] Peters stated that they needed an expert in order to roll-out the programme. The Applicant’s role was to check on lecturers for example a requirement was that students had to know how to use certain tools. He had to check-up in order to see that students had gained such knowledge. He stated that the College also had Mr. Le Roux who was a qualified welder, but who was not a manager. The Applicant was a more senior job level compared to Le Roux.

[36] Peters stated that he consulted the Applicant since 2018 until 2020 in regards to the programme management. Peters stated that the Applicant was dismissed for refusing to do what his job description stated he should do. It was not another post being given to him. It was functions contained in his job description. Page 115 of “R” was a meeting they had with the Applicant which stated the following:
“Meeting with Mr. W. Von Landsberg
Tuesday, 3 December 2019
Attendance: Mr. E. Peters – VP Education and Training
Mr. A. Arnolds - HOD
Mr. D. Matthee
Mr. Peters explained purpose of the meeting – a follow-up of earlier discussions where a proposal was put forward to Mr. Von Landsberg. He was unhappy about certain sections on the document which related to certain management functions, i.e., occupational and farming.
Mr. Peters made Mr. Von Landsberg aware of the HR contract which Von Landsberg signed when he accepted the promotion of Programme Manager.
Sat first Mr. Von Landsberg said that the condition had since changed and that there is a new job description. He failed to show that such document exists.
A lengthy discussion followed about the interpretation of the job description in the document.
It was agreed that it is Mr. Von Landsberg’s right to disagree as it is within Mr. Peter’s right to interpret the document based on the description that is similar across the campuses.”

[37] Peters stated that they had the discussion with the Applicant and the discussion was about the fact that there was a job description in place for the Applicant. He found the job description during 2019, which was after he already had a discussion with the Applicant in 2019. Peters stated that he told the Applicant that if he (Peters) was correct, he would follow a process in terms of the Applicant not following an instruction.

[38] Peters referred to pages 133 to 136 of “R”. It was the outcome of a grievance that was lodged by the Applicant. It, in essence, stated the following:
“OUTCOME OF GRIEVENCE ENQUIRY – STAGE 2
Employee: Wiekus Von Landsberg
Dated: 11 February 2020
As you are aware a grievance enquiry was conducted on 10 February 2020 to resolve a grievance lodged by yourself on 28 January 2020.
After carefully considering the evidence presented, I find the grievance lodged by you to be invalid. My reasons are as follows:

1. The grievance is based mainly on the assumption that the Centre of Specialisation (Welding) programme is an occupational programme. Evidence was submitted that it is indeed a fully DHET (ministerial mandated) programme and funded by DHET.

2. The signed job descriptions indicate that the requests for the programmes to be taught, falls within the scope of what can reasonably be expected from a programme manager. The contents of the job descriptions are valid, fair and successfully implemented across all campuses of Boland College.

3. Your argument related to the organogram of Boland College is not valid as it is based on the assumption of the welding programme being an occupational programme, which it is not. Notwithstanding the organogram, some programme managers are involved in management of both vocational and occupational programmes in their respective fields.

4. After carful consideration I do not agree that you are “oorlaai” (meaning overloaded) as per your grievance. I have compared the workload of the majority of the programme managers within Boland College.
…
You teach 15 hours per week and has at least 20 hours per week left to fulfil other tasks whereas other programme managers have 15 to 16 yours only. It needs to be pointed that you have more non-teaching hours but you perform much less out-of -class functions.
5. Further to point 4 above, I have studied the additional tasks performed by programme managers. As subject fields differ, the tasks differ but include inter alia:
* Assist with timetabling
* Member of Irregularities Committee
* Manage the quality of academic delivery on and across campuses (even all 5 campuses for some programme managers)
* Liaison with external stakeholders (employers, e.g., SAPS)
* Chairperson(s) for focus group(s) even as many as in three provinces
* Member of E-learning Committee
* MOT Facilitator(s)
* Manage performance of laboratory assistants
* Manage the occupational programmes within the subject field

You have not fulfilled any of the duties listed above (accept manage quality of delivery but only at Worcester campus). You refuse to accept responsibility for the management of the Workshop Assistants whereas all other programme managers offering programmes where workshops and assistants are part of the programme, manage these staff members’ performance.
…
You conveniently decided what you want to do and I quote: “Ek het besluit om nie betrokke te raak nie” (meaning: I have decided not to get involved) and “Ek kan ook nie nou belas word met die bestuur van nuwe sentrums nie” (meaning: I cannot now be burdened with the management of new centres).
It need to be underlined that being an educator cannot in its whole be contained by a job description. As the nature of the programmes change, so the educator must adapt to the change and perform any reasonable instruction or duty to ensure that service delivery od curriculum is achieved. No educator can merely refuse to execute a reasonable instruction or duty based on personal preferences.”

CONCLUSION
Taking the above into account, I conclude the following:
Your grievance partly centred on who would pay your salary if you perform the managerial duties of the “CoS” and that you could not get responses with regard to the PPN regarding this question. It was explained to you that you are appointed under the Employment of Educators Act and therefor ethe nature of your employment will remain under the auspices of DHET, and it cannot be changed unilaterally and without your written consent. It was also explained to you that you would have to do what is reasonable expected of a programme manager (post level 2) under the Act.

You are therefore officially instructed to take up the duties as set out in your job description signed off on 20 August 2012 and more specifically in relation to your grievance, you are instructed as follows:
1. Manage the performance of the educator staff and workshop assistants within the Mechanical Engineering Programmes at Worcester campus;
2. Manage, in conjunction with the relevant college management, all welding training including the welding “CoS”, which includes the quality of teaching and learning delivery of all types of programmes (NCV, NATED/ REPORT191 and all Occupational etc.) related to welding training.
3. Manage, in conjunction with the relevant college management, the Automotive programmes which includes the quality of teaching and learning delivery of all types of programmes (NCV, NATED/ REPORT191 and all Occupational etc.) related to automotive training.
4 Perform lecturing duties and its concomitant tasks as allocated by the Worcester Campus Manager.
5. Make inputs and manage the utilization of space and physical resources related to the quality delivery of all Mechanical Engineering programmes at Worcester.
Mrs J.J.M Coetzee
(Chairperson)”

[39] Peters stated that the instruction given to the Applicant in the outcome of the grievance was an official instruction by JJM Coetzee who was also the principal of the college at the time. Peters stated that “reasonably” as stated on page 133 of “R” means that you could be assigned some other duties which are reasonable to perform as a Programme Manager, as you are the manager of the quality of the education and training. Peters stated that it was reasonable to expect the Applicant to manage the “CoS”. He stated that the scope of the Applicant’s job description of August 2012, covered the scope of ministerial and occupational programmes. He stated that occupational included learnerships, short skills programmes, or anything regarded as not being ministerial.

[40] Peters stated that he would not be able to trust the Applicant because the Applicant would continue to do what he did. He gave the Applicant the instruction to perform the duties and he refused to do it. Thereafter the Principal gave him an instruction to do it in terms of the outcome of the grievance, but the Applicant still refused to do it. He stated that other staff members also started challenging the duties they were given, after the Applicant refused to perform the instruction given to him. The other staff members challenged it, but continued to perform the duties given to them. He stated that there was a difference between challenging something and refusing to do it.

[41] Peters stated that the IQMS done by the Applicant was a job evaluation instrument and that the job description the Applicant signed during 2012 supersedes an IQMS. An IQMS may not be totally in line with a job description. Peters referred to page 163 to 181 of “R” as an unfair labour practice dispute referred by the Applicant to the ELRC and a ruling issued by the commissioner, dated 14 May 2020. The document stated that the Applicant classified his dispute as an unfair labour practice dispute. It in essence further stated the following:
“In summarising the dispute, the Applicant explained that since 2019 / 2020 his academic head started to include new duties and responsibilities to his current post without negotiations. He claimed that his head forced him to perform the new duties and did not allow him to discuss the changes with his head. The new duties included functions he claimed he was not even qualified to perform. Applicant also claimed that he did not have time to perform these additional duties. Applicant claimed that his employer is unfair toward him because they do not want to employ an additional staff member to perform these duties.”

[42] Peters stated that the ELRC made a ruling that the ELRC lacked jurisdiction to hear the dispute. The Applicant re-referred the dispute to the ELRC indicating the dispute as a unilateral change to terms and conditions of employment, but stating the same facts in terms of his dispute. Another ruling was issued by the commissioner on 20 May 2020 indicating that the ELRC lacked jurisdiction to hear the dispute.

[43] Peters state that the two rulings issued under the auspices of the ELRC related to the same issues the current arbitration was about.

During cross-examination

[44] Peters was referred to page 22 of “A”. Its is the job advertisement that was placed for the Applicant’s position at the time he applied for it. He was referred to page 26 of “A” as a letter of migration for the Applicant. Peters stated that the letter was dated 11/11/2015. It stated the following: “We hereby confirm that you are the Programme Manager for Mechanical Engineering and related Design programme. Peters stated that the term “mechanical” is an indication that it covers the mechanical scope of work. Peters was asked how many engineering programmes did Boland College offer in NC(V)? He stated that it offered civil engineering at Paarl campus, electrical engineering at Strand campus and mechanical engineering (engineering and related design) at Worcester campus. Peters stated that the post was Mechanical Engineering and Related design and did not only refer to NC(V).

[45] It was put to Peters that the letter on page 26 did not make reference to occupational duties. Peters stated that it would not make reference to occupational and neither did it make reference to NC(V). He stated that it was a mechanical engineering programme and that was the scope of it. Peters stated that the Paarl and Worcester campuses covered NC(V) and Occupational under Mechanical Engineering, as it was the scope.

[46] Peters was referred to page 30 of “A”, point 5. He stated that there are subjects listed like Welding, Fitting & Turning, Automotive repair and Maintenance, Boiler making, etc. He stated that it all fell under Engineering and Related Design (ERD). He stated that the Occupational Certificate was a combination of the theory and the practical. He stated that Boland College had phased out the Welding NC(V) programme. The college retained the Welding Automotive programme. The college was allocated the “CoS”. The college was one of two colleges in the country, approved to offer it.

[47] Peters was referred to page 31 of “R” as the Organogram. He stated that the Organogram covered all campuses. He stated that the Applicant would fall under Programme Manager (PL2) as they would have a link of reporting to the Head of Department (HOD) - PL3. It was put to him that there was no link between Programme Manager (PL2) Vocational and HOD (PL3) Engineering (191) and Artisan Development. Peters stated that the arrow could have been done better. He stated that on the job description there should be a line of reporting to the HOD (PL3) Engineering and Artisan Development.

[48] Peters was asked whether it was correct to expect the Applicant to sign the document that was presented to him, without allowing him to provide his input. Peters stated that the document was just to spell his duties out to him in a better manner. His duties were already contained in the job description that he (Peters) discovered and obtained from his file at HR department during December 2020 when he visited their Head Office. Peters was asked whether he expected the Applicant to accept the new proposed responsibility without discussion. Peters responded in the positive. Peters stated that the outcome of the grievance was that the Applicant should follow his job description (of 20 August 2012) (pages 89 to 94 of “R”).

Mr. Derick Carlton Matthee testified under oath as follows:

[49] He was appointed as Programme Manager in 2009. He started in the position of Acting Campus Manager in 2020. He was the Senior Manager (Vocational) at the Head Office from March 2021 until December 2021. He was appointed as Acting Campus Manager from January 2021. As a Programme Manager he worked closely with the Applicant until 2017.

[50] Matthee was referred to page 29 of “R” (the charge sheet). He stated that the Applicant refused to perform duties as a Programme Manager. The Applicant lodged a grievance and he stated during the grievance hearing that the duties assigned to him were unreasonable. He lodged the grievance after the discussion they had in December 2019. The grievance was lodged around 28 January 2020. In his grievance he stated that he was pushed unfairly to doing things he felt was not part of his job description.

[51] Matthee stated that he called the Applicant for a meeting on 18/06/2020 after the lock-down period when they re-opened at the college. During that meeting they discussed the outcome of the grievance. He told the Applicant that he wanted the Applicant to perform his duties as per his job description. He gave the Applicant the outcome of his grievance hearing. The Applicant pushed it back to him and asked him why he wanted to enforce it. The Applicant also told him that he was not going to perform the required duties. Matthee sated that the Applicant was still required during 2020, to perform the duties in terms of his job description of 20/08/2012 (pages 89 to 94 of “R”)

[52] Page 97 stated that the Applicant was responsible for the planning of and management over the academic activities as well as the practical training that should be incorporated in the programme structure. It also stated that the Applicant was responsible for ensuring quality in terms of the training of the specific programme. Matthee refereed to the job description on pages 100 to 107 of “R”. He stated that the Applicant signed this document on 6/03/2020, but it was not signed by a supervisor or manager. He stated that the document was therefore not an official job description and had no legal binding effect on the college. The legally binding document was the 2012 job description as it was officially signed by the Applicant and the managers of the college.

[53] Matthee stated that the “CoS” started in 2019 at the college and the student intake started in 2019. It was a 3-year programme. He stated than when he started as Campus manager from 2020, he regarded the Applicant as the person who had to manage the “CoS” as Programme Manager. The Applicant refused to perform the applicable function. There was an amount that he (Matthee) had to sign off for consumables. He was not sure whether that number of consumables would be required. He asked the Applicant to assist him, but the Applicant referred him back to the course facilitators. The consumables for welding were for the “CoS” and it came from the facilitators. The amount for the welding consumables was approximately R93 000,00 which was for welding rods and other consumables. Normally a request for consumables would be requested by the Programme Manager, but in that instance, it came from the facilitators.

[54] Matthee stated that there was a requirement that “CoS” Facilitators should be reporting to the Applicant but that did not happen, because the Applicant told them not to report to him. He told them that it was not part of his responsibilities. Matthee stated that he arranged a meeting for 20/01/2020 but the Applicant refused to attend the meeting. The purpose of the meeting was to discuss the operational aspects of the workshop. The cost Facilitators were also supposed to attend the meeting. The meeting was about the workshops and the Workshop Assistants.

[55] Matthee referred to page 80 of “R”. He stated that it was an email from the Applicant to Mr. Cordier, Mr. Peters and one other on 5/08/2020, which stated the following:
“Hello Mr. Cordier
I have on the basis of a proposal decided that I have to inform you in writing that I am not available to manage the new “CoS”. I am currently Programme Manager: Mechanical and subject lecturer for various modules as Boland college expects of me. The management of this project will not fit into my type of profile, knowledge and skills. I hope you understand my feeling. I am also in discussion with NAPTOSA, my union, and they also want to have an informal discussion with me on campus next week. I will keep you up to date sir. They also want to have a discussion with you sir.
Wiekus Von Landsberg”

During cross-examination

[56] It was put to Matthee that the job description signed by the Applicant in 2012 was under the Western Cape Education Department (WCED), which was a different dispensation. Matthee stated that the move from WCED to DHET did not have any impact on the academic delivery. Matthee was referred to an email from Cordier dated 11/08/2014 (page 108 of “R”) which Cordier had sent to everyone (in Afrikaans), stating the following:

“Kollegas
Hierby ingesluit is die PV1 (lector) se pligstaat wat ek in 2012 aan almal gestuur het voor die SABS oudit.
Voltooi asb u besonderhede daarin. Druk uit en parafeer elke bladsy, en teken voluit op laaste bladsy. Ek sal dan ook teken.
Moenie bekommerd wees nie. Dit is verouderd maar daar moet n getekende pligtestaat wees.

[57] It was put to Matthee that the word “verouderd” translated in English would mean obsolete or outdated. Matthee stated that he would differ, as according to him it would mean old or aged, like wine. He was referred to page 36 of “A”. It was put to him that the Applicant scored good points on the IQMS. Matthee stated that the IQMS was an individual academic performance tool for academic personnel. Matthee stated that for the IQMS, educators may only select the performance standard that are applicable to them in terms of their job description. Matthee was asked what duties did the Applicant refuse to perform. He stated that the Applicant refused to perform the following duties:
a) He didn’t want to take responsibility of the workshop and Workshop Assistant;
b) He didn’t want to take responsibility of the quality assurance of the academic programme of the “CoS”;
c) He didn’t want to do the performance evaluations of the Workshop Assistants.
He was asked if these were the only three things which the Applicant refused to perform. Matthee stated that he only gave a broad list.

[58] Matthee was referred to page 173 of “A”. He was asked which responsibilities did the Applicant unreasonably refuse to accept and perform.
Matthee stated that the Applicant refused to accept and perform the following duties:
NC(V) Engineering and Related Design
- Managing of workshop assistants
- IQMS of lecturers and PMDS of workshop assistants

Report 191: N1 to N6 Engineering
- Quality assurance of academic programme
- Managing of lecturers/students in the programme
- IQMS of lecturers and PMDS of workshop assistants
- Ordering of textbooks in conjunction with lecturers

Centres of Specialisation (“CoS”)
- Managing the implementation of NOCC
- Quality assurance of academic programme
- Managing of facilitators/apprentices in the programme
- Managing of Workshop Assistants
- IQMS of facilitators and PMDS of Workshop Assistants
- Oversee maintenance of workshops/equipment as per maintenance plan in conjunction with lecturers/head office
- Managing of learning material in conjunction with Facilitators
- Managing the procurement of consumables in conjunction with lecturers
- Ensure that Facilitators/Placement Officer visit companies where students are placed on a regular basis
- Ensure that the Placement Officer(s) on campus recruit learners/apprentices
- Managing where applicable the trade testing function

Occupational Engineering
- Assist with quality assurance
- Advise/assist Skills Manager in terms of subject matter expertise
- Ensure that the Placement Officer(s) on campus recruits learners / apprentices
- Managing trade testing function

[59] Matthee was asked where on the Organogram did it show that the Applicant had to manage Workshop Assistants. He stated that the Workshop Assistants did not appear on the Organogram at all. It was put to him that the Applicant’s case would be that the Workshop Assistants fell under facilities and that they would be under General Workers. Matthee stated that the Workshop Assistants were part of the education and training staff compliment and that they would fall under the lecturers on the education and training Organogram. Matthee stated that the Applicant was supposed to manage two Workshop Assistants. One under welding and one under automotive. It was put to Matthee that the welding Workshop Assistant would fall under Mr. Vincent Uys as a Programme Manager, because it fell under maintenance, and that welding as a subject fell under maintenance. Matthee stated that he disagreed. He stated that the Applicant was the Programme Manager of Automotive as well and that the Applicant was responsible for the Workshop Assistants.

[60] It was put to Matthee that the Applicant did not disagree that he had to manage workshops, but what he was challenging is that he had to manage a Workshop Assistant who fell under a different programme. Matthee stated that the workshop fell under Engineering and Related Design (ERD) It was put to Matthee that the Applicant refused to accept the document because he saw that Matthee amended his job title and also amended his functions. The intention of Matthee was to change his job title. Matthee stated that he had extended his arm to hand the document to the Applicant on the day, by pushing it to him on the table. The Applicant just pushed it right back to him. Matthee stated that the document was placed upside down on the table and therefore the Applicant could not have read it. He stated that the Applicant pushed it right back to him and said he was not going to look at it.

[61] He was asked why they wanted the Applicant to manage the Occupational programme and not Mrs. Herbst. He stated that they did not say he must manage it as page 89 refers to manage and implement identified projects in respect of training within the programme field of learning.

Mr. Jan-Hendrik Kruger testified under oath as follows:

[62] He was the Principal of False Bay TVRT College. False Bay College had two Centres of Specialisaton. He stated that it would not have been illegal to expect the Applicant to perform duties as a Programme Manager as part of the “CoS”. He stated that all Programme Managers were responsible for the programmes in their field. He stated that it would have been the Applicant’s responsibility to do both ministerial funded programmes and non-funded Vocational and Occupational programmes.

During cross-examination

[63] He was asked if there was a process to be followed when one wanted to add a programme to a lecturer who is already part of the college. Kruger stated that as long as the lecturer was qualified, one would have the right to allocate the programme to him, but one would want to inform the person, or consult by informing him/her. It was put to Kruger that the Applicant had issues when he was requested to do the “CoS”. The Applicant was of the opinion that Callie Herbst was managing the Occupational programme as Programme Manager and the “CoS” was falling under Occupational. Kruger stated that that a person could find himself/herself at two programmes at the same time. If that person does both Vocational and Occupational programmes, there would be some addition of persons reporting to him/her.

Mrs. Johanna Coetzee testified under oath as follows:

[64] She was the Principal of Boland college. She stated that it was not incorrect of the college to instruct the Applicant to perform the duties of the “CoS”. She stated that it would only be unreasonable when the workload was so full that it would not be reasonable to expect one to do it. She stated that there was consultation done with the Applicant. He was well qualified to do it. She stated that it was fair and reasonable. She stated that there was an analysis done of the Applicant’s workload. The outcome was that he was not overloaded with work. There was space in his workload to manage the “CoS”. She stated that she was the chairperson of the Applicant’s grievance hearing. She drafted the outcome of the grievance hearing (dated 11 February 2020). After she gave the instruction in her grievance outcome, Peters reported to her that the Applicant continued in refusing to obey the instructions.

[65] She stated that Applicant had sent an email to Matthee (on 18 June 2020) and she was copied in the email. Peters (Vise Principal) was also copied. Coetzee stated that the Applicant was still convinced that there was a difference between ministerial and occupational programmes and the Applicant was of the view that he will not manage occupational programmes.

During cross-examination

[66] Coetzee was asked what would she describe as consultation. She stated that it was the sharing of information between the parties. It was put to her that the Applicant indicated that he was not willing to accept the new duties without proper consultation and Matthee decided to stop the meeting. Matthee stated that she would not know as she was not present at that meeting. It was put to Matthee that the Applicant was forced to oversee, to deal with, or to accept a responsibility in occupational, while he was appointed in ministerial. It was put to her that the Applicant was forced because there was no consultation. She stated that she could not comment on that as she was not involved in the process.

Mrs. Alethia Jacobs testified under oath as follows:

[67] She was employed as Quality Assurance Manager / Assistant Director Quality Assurance. Her job entailed the quality assurance of documents. All documents are being stores on the QMS system. She stated that page 100 to 107 (Applicant job description signed 6/03/2020) was a proper QMS document, however it was only signed by the Applicant and not by the Supervisor.

During cross-examination

[68] She stated that the job description on pages 89 to 94 was not an approved document. She explained that a document must be approved by the process owner and it must have a valid “from date” and a version number. She stated that pages 100 to 107 of “R” would be the valid document as it is a QA (quality approved) document.

Mr. Vusi Nkosi testified under oath as follows:

[69] He was the Presiding Officer of the Applicant’s disciplinary hearing. The last day of the hearing was on 20/11/2020. He stated that he returned to Pretoria after 20/11/2020. A week after that his car got broken into and his laptop bag containing his laptop and his qualifications, got stolen. He laptop had the notes of the hearing typed on it. He also used his laptop to record the hearing. Nkosi stated that the Applicant did not suffer prejudice as he still got paid his salary until the outcome was issued.

During cross-examination

[70] He stated that he agreed that his outcome was not issued after to weeks because it was delayed. He stated that there was another lady present at the hearing and she was introduced as the scriber. She assisted him wit the recordings she took at the hearing. It was put to him that there was a lady at the hearing who was the scriber and she took notes of the hearing, and also recorded the proceedings. He was asked if there could have been any important thing which he left out in his finding. He stated that there was nothing he left out. It was put to him that the Resolution stated that the chairperson must issue the outcome after two weeks. Nkosi stated that he would not provide any comment.

THE APPLICANT’S EVIDENCE AND ARGUMENTS

[71] The Applicant submitted a bundle of documents consisting of 206 pages, which I
admitted as Bundle “A” (hereinafter referred to as “A”). [pages 198 to 205, and page
206 were submitted on 25/02/2022; page 207 was submitted on 22 April 2022].

Mr. John Lodewyk Von Landsberg (the Applicant) testified under oath as follows:

[72] He stated that since he started at the college, there was the PAM document they were using. The PAM document regulated his working conditions and working hours at the college. The PAM stated that he had to work for 35 hours per week. His annual leave at the college was based on institutional closure. When the college closed for students, lecturers also had their annual leave. He stated that since he joined the Department, the only ministerial approved programmes were NC(V) and Nated courses. He stated that he was appointed as Programme Manager: Mechanical and Related Design at Boland College, but people wanted to follow an umbrella approach.

[73] Von Landsberg state that he was the Head Programme Manager for the whole Engineering and Related Design. He was responsible for the attendance as well as the discipline of the students in the ERD programme. He was responsible for the equipment and the tool in the programme. As Programme Manager he could delegate certain duties, but if there were issues, he has kept responsible.

[74] The welding programme was stopped at the college during 2018. The last intake for student was during 2017 because that was when they have implemented the Welding “CoS”. The “CoS” was an occupational certificate and a welder qualification. He stated that he has lectured welding as part of the ERD programme. The SETAs gave a lot of money and have set up a brand-new workshop for the students of the “CoS”.

[75] The listed NC(V) DHET programmes (pages 28, 29, 30 and 31 of “A”) did not include any occupational or skill programme. There were no occupational programmes or occupational deliveries included in the programmes. The timetable for using the workshop was compiled by an HOD. The lecturer in that workshop had to ensure that the tools are cleaned. If another lecturer came to the workshop with their students, that lecturer had to check that the tools and equipment needed are in place and available. The Applicant stated that it was never his responsibility to get involved with other lecturer’s students workshop responsibilities. He stated that he was not involved in signing off for tools, etc. for any student falling under other Programme Managers., for example, farming students, etc. He stated that those Programme Managers were responsible for their own quality assurance. He stated that when farming students were at the workshop, Mr. Baxter would report to Uys and not to the Applicant. When Automotive students walked into the workshop, Baxter would report to the Applicant. The Applicant stated that the reason for that was because there was only one workshop being utilized.

[76] The Applicant referred to page 31 of “R” (the Organogram). He stated that he was appointed as Programme Manager in the NC(V) which made him a Programme Manager: Vocational (for NCV): Engineering and Related Design. He was responsible for the lecturers, according to the Organogram. He stated that there was a difference between lecturers and facilitators. He stated that never once had he been placed in a position where he had to manage occupational deliveries.

[77] He stated that he was reporting to Mr. Vincent Uys. Uys was the Programme Manager overseeing the programme: Farming Management. Uys was responsible for the academic delivery, quality assurance in the Farming Management programme. The applicant state that the document presented to him on 18/06/2020 showed that he had to take responsibility of the duties of Uys. He stated that he would have loved Uys to be present in order to discuss what Uys would be doing and what he (the Applicant) would be doing. Matthee stopped the meeting when he (the Applicant) asked questions. Matthee said it was his meeting and if the Applicant wanted to ask questions, he should arrange his own meeting with him. The Applicant stated that after that he started writing his emails to them.


[78] The Applicant referred to the meeting with Matthee on 18/06/2020. The was a proposal being put to him on the document that he must take responsibility for all training in all workshops. He had many questions in terms of what training they were referring to. He needed clarity on whether it was training for Farming, Mechanical and Relate Design (ERD), etc. He stated that Boland College wanted him to become a workshop manager for all these students. The Applicant stated that it was never part of his responsibilities and it would never be.

[79] He did not see why he had to take responsibility for all Workshop Assistants in all the programmes and in all the workshops, while he was also a Programme Manager for a specific programme named Engineering and Related Design. He did not see why Callie Herbst or Uys could not do it. He stated that these were the questions he asked when he received the document on 18/06/2020. He stated that the people who reported to him were lecturers and not Workshop Assistants. He stated that he was not responsible for workshops in terms of the Organogram. He was responsible for lecturers.

[80] The Applicant stated that when Matthee presented him the document (page 113 of “R”), Matthee was the Acting Campus Manager at the time. Matthee pushed the document to him on the table and said he should sign it. He stated that he looked at the document and he refused to sign it. The responsibilities on the document stated that he had to manage Workshop Assistants. He stated that Workshop Assistants would fall under and would be regarded as General Workers. They would fall under the Organogram of Corporate services.

[81] When the document was presented to him, he did not know what “managing of workshop assistants” meant. He knew what managing of lecturers entailed and he had been doing that all along. The Applicant stated that he would have been the only Programme Manager who would have managed Workshop Assistants who fell outside of the Programme Managers scope. He stated that the Workshop Assistants worked under three different programmes, of which only one of the programmes was his programme. The college proposed that he took charge of all workshops and all Workshop Assistants in the programme. The Applicant stated that he needed discussion to take place based on why he should do it and why not the other Programme Managers.

[82] Von Landsberg stated that the job description on page 89 of “R” (2012 job description) was provided to him by Cordier, just to sign off for SABS audit purposes. He stated that he had raised to Cordier and Peters during 2019 that the “CoS” was an occupational programme. The Applicant stated that the reason he refused to sign the document presented to him by Matthee on 18/06/2020 (page 118 of “R”), was because he was aware of the responsibilities of a “CoS” manager. He was aware that the people who managed the “CoS” at other colleges were not lecturing.

[83] The Applicant referred to page 161 to 172 of “A”. He stated that this was his respond in terms of audi alterem partem that was afforded to him in respond to the charge that the college wanted to lay against him (same charged which led to his dismissal).
[it must be noted for the record that I am not going to repeat everything stated by the Applicant in that document, but I am going to state what his respond was in essence]. The Applicant’s respond was in essence that since the start of the “CoS” in 2017 he was never appointed as a Programme manager for the “CoS”, neither did he receive any new duties or responsibilities to manage the “CoS”. He never signed any new appointment letter changing his post. He did not see why he should be performing occupational related duties while there was a Programme Manager at the campus who was appointed to do such. Further, the Programme managers at other colleges did not also perform lecturing duties while he was expected to be a Programme Manager and also perform lecturing duties.

[84] The Applicant state that there was never a refusal to perform certain duties, but there was a refusal to sign the document.

During cross-examination

[85] He stated that there was no financial prejudice suffered by him due to receiving the outcome of the hearing late. He stated that he was emotionally drained. He received the outcome of the hearing around 8 March 2021. He expected to receive it around 4 December 2020. He agreed that in terms of the comparison of the periods and hours worked by lecturers (contact hours by performing teaching / lecturing duties), his total periods per week were 20 and his total hours per week was 15. He stated that the other hours were kept open for performing other duties. Other duties he performed included student application handling, enrollment of students, handling of students’ disciplinary action, attending management meetings on a Monday between 14h00 and 16h00 and other duties (pages 33 to 35 of “A”). He stated that the grievance he lodged was against Peters (page 151 of “A”)

[86] He stated that the Workshop Assistants were not supposed to report to him. He refused that they report to him because they were part of “grounds staff”. It was put to the Applicant that he refused to order cleaning material for the workshop, as was testified by one of the Respondent’s witnesses. He responded in the positive. He stated that the reason he refused to do that was because they wanted him to order consumables for the Farming Management Programme and he was not the Programme Manager for the Farming Management Programme. He stated that he only ordered for the ERD which was his programme.

[87] The Applicant stated that he did not accept to manage the workshops for other programmes, while there were Programme Managers. The Applicant went on to say: “Why should I do it. Why should I be the lucky one?”

[88] The Applicant stated that Cordier and Peters had a formal meeting with him during October 2019, for him to take up the “CoS”. They asked him to re-consider his position of him refusing to manage the “CoS”. He told them he did not see himself at that stage getting involved with the “CoS”. Peters and Cordier accepted his decision. He said there was another meeting held between October 2019 and 3 December 2019. He told Peters and Cordier that maybe he must give it a go, but that they needed to look at his working hours. He submitted a proposal to them and they said they would look at it and they said they would design something for him to look at. The Applicant stated that there was another meeting held on 3 December 2019 which was a continuation of the previous meeting. He meeting of 3 December was to continue with the negotiation. On 3 December 2019 was the first time he saw Peters having his 2012 job description and Peters referred to it.

[89] Peters appeared in that meeting with Matthee. The Applicant stated that Peters presented the 2012 job description. Peters told him that he (the Applicant) will do everything that was in the job description. He told Peters that the document was outdated and was only used for SABS audit purposes. The Applicant stated that Peters did not want to listen to him.

[90] He was referred to pages 113 and 114 of “R” and the section under the Centre of Specialisation (“CoS”). He was asked whether it was possible for him to perform those duties. He stated that it was not possible. The Applicant provided the following reasons:
a) He stated that the “CoS” was a full-time position and that he requested them to look at his working hours;
b) Managing facilitators was part of a full-time position and he did not know what managing the apprentices entailed;
c) The managing of Workshop Assistants was not part of his responsibility. It was the responsibility of Uys. Workshop Assistants were working under Occupational.
d) in terms of doing PMDS of facilitators, the facilitators were not his responsibility and they were under the Programme Manager for Occupational.
e) He was not appointed to oversee maintenance of workshops equipment.
f) He stated that there was no time slot available in his schedule to fit in the duties listed under Bullet 7
g) Bullet 9 would also not fit into his responsibilities as Programme Manager.
h) He stated that Bullet 10 was the responsibility of the Programme Manager for Occupational. He was willing to do it as an office-based lecturer as it did not fit into his day-to-day duties as full-time lecturer.
i) Buller 11 could not fit into his time table. Callie Herbst was managing the programme where students had to go for their trade tests.
[He stated in essence that he was also not appointed for Occupational, but for Vocational.]

[91] He stated that he never received any instruction from his manager to manage the “CoS” until 18/06/2020. He was referred to page 186 of “R” as an email he had sent to Peters after the disciplinary hearing finding. He agreed that he apologized in the email as he stated that he was genuinely sorry. He stated that he felt sorry for putting Peters through his as he had instituted a grievance against Peters.

Mr. Carl Herbst testified under oath as follows:

[92] He was the Programme Manager for the Occupational programmes. It entailed learnerships and skills programme. The “CoS” was the Occupational Certificate for Welding. (Noted for the record that he was also known as Callie Herbst)

During cross-examination

[93] It was put to him that the Applicant was expected to oversee the “CoS”, specifically the welding workshop. He was asked whether it was possible for the Applicant to do that. He responded in the positive. He stated that pages 125 to 132 were sent to them only for HDET monitoring purposes. There was no instruction for them to sign it. He stated that when comparing the 2012 and the 2020 job descriptions, the 2020 was the one for the duties of Programme Manager NC(V) – Vocational.

Mrs. Petronella Elizabeth Herbst testified under oath as follows:

[94] She was the Programme Manager for Languages at Boland College – Worcester campus. Cordier told them to sign the job description of 2012 just for SABS audit purposes. Cordier said it was only a paper exercise as there had to be one on file for SABS audit purposes. They all complaint as the document contained occupational duties. The reason why they complaint was because their schedules were full. The job description on pages 25 to 132 was more relevant to her position as it did not contain occupational duties.

During cross examination

[95] She was referred to the document which Matthee presented to the Applicant for signature. She stated that it stated proposed responsibilities, so it was a proposal. It was still in proposed state and there was no instruction.

Mr. Bradley Le Roux testified under oath as follows:

[96] He lectured the students on the campus site only. He reported to the Campus Manager in terms of the “CoS”. He attended training in Johannesburg for the “CoS” He stated that the Applicant never managed occupational deliveries while he (Le Roux) was working at the college.

During cross examination

[97] He stated that he knew the Applicant because the Applicants workshop was situated next to his workshop at the college. The Applicant’s workshop was sued by NC(V) and ERD students.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

[98] Section 192 of the LRA states the following:
“Onus in dismissal disputes
(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.
(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.”

[99] The Respondent bore the onus to proof that the dismissal was fair. He Respondents case is that the Applicant refused to accept and perform certain duties and that the Applicant was accordingly charged and dismissed based on that. Peters testified for the Respondents. His evidence is that he received an e-mail from Matthee on 18/06/2020 (138 of “R”). The e-mail which Matthee addressed to him stated the following:
“Dear Mr. Peters
I had a meeting with Mr. Von Landsberg to discuss his PM duties. We started a bit early, 10:56 but the meeting lasted only till 11:06 at which time I stopped the meeting.
Mr. Von Landsberg refused to accept the document which I presented to him, saying that it comes down to changing his post. He never even looked at it.
I stopped the meeting when Mr. Von Landsberg produced the same documents that he presented at the disciplinary hearing (correction: “grievance hearing”) the last time in Ms. Coetzee’s office. He is of the opinion that the issue about his PM duties is still ongoing and differed from me when I informed him that it has been resolved.”

[100] The evidence of Peters is that the Applicant wrote an email to Matthee on 28/06/2020 (after they had the meeting) and that he (Peters) was copied in the email (Page 141 of “R”). The email stated the following:
“Dear Mr. Matthee
I am very unhappy about our “meeting” this morning. The manner in which you led the meeting, without listening to me or to look at my documents. As in the meeting with you sir, I confirm that I am not willing to sign or to accept a new document with new duties without a proper process. The reason is that I am not willing to sign or accept to change my post. I am appointed as Programme Manager: Mechanical Engineering and Related Design (NCV) and not to manage other programmes, occupational, skills, etc. I am post-level 2 and a full-time lecturer. I have all the necessary evidence and documents to substantiate all my allegations, if somebody is willing to look at it.

I am also aware of the PPN and it is very clear that we who are transferred over to the new structure must be done according to point 5.2.1.4 in “an open and transparent procedure should be followed.” And according to point 8 “Dispute resolution”, I am entitled to disagree with the restructuring of my current duties and responsibilities and there is a specific procedure that must be followed, see point 8 if I am unhappy, my proposal is that we discuss the restructuring of my post.

According to the PPN, all who are involved, are Ministerial Approved Programmes. Only report 191 and NC(V) courses, point 5.2.1.4 “only staff offering Ministerial Programmes will be placed on the new standardized ministerial college structure” also point 5.2.1.3 “Staff only offering Non-Ministerial (Occupational / Skills programmes) cannot be placed.” There are already sufficient structures in place, staff and managers who are already managing the duties and responsibilities that Mr. Peters want to impose on me.

[101] The evidence of Matthee is that he the Applicant unreasonably refused to accept and perform the following duties:
NC(V) Engineering and Related Design
- Managing of workshop assistants
- IQMS of lecturers and PMDS of workshop assistants

Report 191: N1 to N6 Engineering
- Quality assurance of academic programme
- Managing of lecturers/students in the programme
- IQMS of lecturers and PMDS of workshop assistants
- Ordering of textbooks in conjunction with lecturers

Centres of Specialisation (“CoS”)
- Managing the implementation of NOCC
- Quality assurance of academic programme
- Managing of facilitators/apprentices in the programme
- Managing of Workshop Assistants
- IQMS of facilitators and PMDS of Workshop Assistants
- Oversee maintenance of workshops/equipment as per maintenance plan in conjunction with lecturers/head office
- Managing of learning material in conjunction with Facilitators
- Managing the procurement of consumables in conjunction with lecturers
- Ensure that Facilitators/Placement Officer visit companies where students are placed on a regular basis
- Ensure that the Placement Officer(s) on campus recruit learners/apperntices
- Managing where applicable the trade testing function

Occupational Engineering
- Assist with quality assurance
- Advise/assist Skills Manager in terms of subject matter expertise
- Ensure that the Placement Officer(s) on campus recruits learners / apprentices
- Managing trade testing function

[102] The evidence of Matthee is that he had called the Applicant for a meeting on 18/06/2020 and during that meeting they discussed the outcome of the grievance. His evidence is that he told the Applicant that he wanted the Applicant to perform his duties as per his job description (2012 job description) and that he gave the Applicant the outcome of his grievance hearing. The testimony of Matthee is that the Applicant pushed it back to him and asked him why he wanted to enforce it. The evidence of Matthee is that the Applicant told him that he was not going to perform the required duties.

[103] The evidence of Coetzee is that she was the Principal of Boland college. Her
evidence is that it was not incorrect of the college to instruct the Applicant to perform
the duties of the “CoS” and that it would only have been unreasonable when the
workload was so full, that it would not be reasonable to expect one to do it. Her
evidence is that there was an analysis done of the Applicant’s workload and the
outcome was that he was not overloaded with work. The evidence of Coetzee is that
there was space in the Applicant’s workload to manage the “CoS”. Her testimony is
that the Applicant was well qualified to perform the duties and that the instruction
was fair and reasonable.

[104] The evidence of Coetzee is that she was the chairperson of the Applicant’s grievance hearing and that she drafted the outcome of the grievance hearing (dated 11 February 2020). The uncontested evidence of Peters is that the following had been the outcome of the grievance issued by Coetzee:

“I find the grievance lodged by you to be invalid. My reasons are as follows:

1. The grievance is based mainly on the assumption that the Centre of Specialisation (Welding) programme is an occupational programme. Evidence was submitted that it is indeed a fully DHET (ministerial mandated) programme and funded by DHET.

2. The signed job descriptions indicate that the requests for the programmes to be taught, falls within the scope of what can reasonably be expected from a programme manager. The contents of the job descriptions are valid, fair and successfully implemented across all campuses of Boland College.

3. Your argument related to the organogram of Boland College is not valid as it is based on the assumption of the welding programme being an occupational programme, which it is not. Notwithstanding the organogram, some programme managers are involved in management of both vocational and occupational programmes in their respective fields.

4. After careful consideration I do not agree that you are “oorlaai” (meaning overloaded) as per your grievance. I have compared the workload of the majority of the programme managers within Boland College.
…
You teach 15 hours per week and has at least 20 hours per week left to fulfil other tasks whereas other programme managers had 15 to 16 yours only. It needs to be pointed that you have more non-teaching hours but you perform much less out-of -class functions.
5. Further to point 4 above, I have studied the additional tasks performed by programme managers. As subject fields differ, the tasks differ but include inter alia:
* Assist with timetabling
* Member of Irregularities Committee
* Manage the quality of academic delivery on and across campuses (even all 5 campuses for some programme managers)
* Liaison with external stakeholders (employers, e.g., SAPS)
* Chairperson(s) for focus group(s) even as many as in three provinces
* Member of E-learning Committee
* MOT Facilitator(s)
* Manage performance of laboratory assistants
* Manage the occupational programmes within the subject field

You have not fulfilled any of the duties listed above (accept manage quality of delivery but only at Worcester campus). You refuse to accept responsibility for the management of the Workshop Assistants whereas all other programme managers offering programmes where workshops and assistants are part of the programme, manage these staff members’ performance.
…
You conveniently decided what you want to do and I quote: “Ek het besluit om nie betrokke te raak nie” (meaning: I have decided not to get involved) and “Ek kan ook nie nou belas word met die bestuur van nuwe sentrums nie” (meaning: I cannot now be burdened with the management of new centres).
It need to be underlined that being an educator cannot in its whole be contained by a job description. As the nature of the programmes change, so the educator must adapt to the change and perform any reasonable instruction to ensure that service delivery of curriculum is achieved. No educator can merely refuse to execute a reasonable instruction or duty based on personal preferences.”

CONCLUSION
Taking the above into account, I conclude the following:
Your grievance partly centred on who would pay your salary if you perform the managerial duties of the “CoS” and that you could not get responses with regard to the PPN regarding this question. It was explained to you that you are appointed under the Employment of Educators Act and therefor ethe nature of your employment will remain under the auspices of DHET, and it cannot be changed unilaterally and without your written consent. It was also explained to you that you would have to do what is reasonable expected of a programme manager (post level 2) under the Act.


[105] The evidence of Coetzee is that after she gave the instruction in her grievance outcome, Peters reported to her that the Applicant continued in refusing to obey the instructions. The uncontested evidence of Peters is that the Coetzee gave the following instruction to the Applicant when she issued the grievance outcome:
“You are officially instructed to take up the duties as set out in your job description signed off on 20 August 2012 and more specifically in relation to your grievance, you are instructed as follows:
1. Manage the performance of the educator staff and workshop assistants within the Mechanical Engineering Programmes at Worcester campus;
2. Manage, in conjunction with the relevant college management, all welding training including the welding “CoS”, which includes the quality of teaching and learning delivery of all types of programmes (NCV, NATED/ REPORT191 and all Occupational etc.) related to welding training.
3. Manage, in conjunction with the relevant college management, the Automotive programmes which includes the quality of teaching and learning delivery of all types of programmes (NCV, NATED/ REPORT191 and all Occupational etc.) related to automotive training.
4 Perform lecturing duties and its concomitant tasks as allocated by the Worcester Campus Manager.
5. Make inputs and manage the utilization of space and physical resources related to the quality delivery of all Mechanical Engineering programmes at Worcester.

[106] The evidence of the Applicant is that it was never his responsibility to get involved with other lecturer’s students workshop responsibilities. His case is that he was not involved in signing off for tools, etc. for any student falling under other Programme Managers., for example, farming students, etc. The Applicant’s case is that those Programme Managers were responsible for their own quality assurance. The Applicant’s case is that he was appointed as Programme Manager in the NC(V) which made him a Programme Manager: Vocational (for NCV): Engineering and Related Design. His case is that he was responsible for the lecturers, according to the Organogram and that never once had he been placed in a position where he had to manage occupational deliveries.

[107] The Applicant’s evidence is that during the meeting with Matthee on 18/06/2020, there was a proposal being put to him on the document that he must take responsibility for all training in all workshops. He had many questions in terms of what training they were referring to and he needed clarity on whether it was training for Farming, Mechanical and Relate Design (ERD), etc.

[108] The Applicants evidence is that Boland College wanted him to become a workshop manager for all these students and that was never part of his responsibilities and it would never be. The Applicant’s case is that he did not see why he had to take responsibility for all Workshop Assistants in all the programmes and in all the workshops, while he was also a Programme Manager for a specific programme named Engineering and Related Design. His evidence is that he did not see why Callie Herbst or Uys could not do it and these were the questions he asked when he received the document on 18/06/2020. The Applicant’s case is that the people who reported to him were lecturers and not Workshop Assistants. The Applicant’s case is that he was not responsible for workshops in terms of the Organogram. He was responsible for lecturers.

[109] The Applicant’s evidence is that the Workshop Assistants were not supposed to report to him. His case is that he refused that they report to him because they were part of “grounds staff”. The Applicant agreed that he refused to order cleaning material for the workshop and stated that the reason for his refusal was because they wanted him to order consumables for the Farming Management Programme and he was not the Programme Manager for the Farming Management Programme. His testimony is that he only ordered for his programme (ERD).

[110] The Applicant’s case is that when Matthee presented him the document (page 113 of “R”), Matthee pushed the document to him on the table and said he should sign it. His evidence is that he looked at the document and he refused to sign it, because the responsibilities on the document stated that he had to manage Workshop Assistants. He stated that Workshop Assistants would fall under and would be regarded as General Workers. They would fall under the Organogram of Corporate services.

[111] The testimony of the Applicant is that when Matthee presented the document to him, he did not know what “managing of workshop assistants” meant. He knew what managing of lecturers entailed as he had been doing that all along. The Applicant’s case is that he would have been the only Programme Manager who would have managed Workshop Assistants who fell outside of the Programme Managers scope.
[112] The Applicant’s case is that he needed discussion to take place based on why he should do it and why not the other Programme Managers.

[113] The evidence placed before me suggest that the Applicant was instructed By Coetzee to perform the said duties when she issued her grievance outcome. Her evidence is that Peters informed her that the Applicant never started to perform the duties. It is not disputed that the Applicant did not perform the said duties after the grievance outcome, or even after the meeting with Matthee. From the evidence it is clear that all Matthee wanted to do was to make the Applicant sign for
What was expected from him to do and to start doing it.

[114] It is not in dispute that the Applicant refused to sign the document presented by Matthee and that he never started performing the said duties. The was evidence led from both sides in respect of which job description was valid and which one was not. The Applicant was a Programme Manager. What is important is whether the instruction to accept and perform the duties was legal and reasonable. It is not disputed that the Applicant’s lecturing time did not cover the full hours (35 hours) and that there was space to perform other duties, apart from lecturing duties. The Applicant’s evidence is that he did not have time to fit the said duties into his schedule, that the duties did not fit his responsibilities or fall within his scope or programme, etc.

[115] An instruction must be capable of performance. It means that the employee must
possess the necessary knowledge, ability, skill and capability to carry out an
instruction or to perform a duty. An instruction must fall within the ambit of the
employee’s job. The instruction must be reasonable under the circumstances and it
must be lawful.

[116] The Applicant was a Programme Manager. His evidence is that he did not see why
other Programme Managers could not do it. He even said why should he be the
“lucky one”. Clearly the Applicant did not have an issue with the functions being
performed by a Programme Manager, as long as he was not that Programme
Manager. The Applicant admitted that he ordered consumables for his programme
(ERD). He just had an issue with doing it for another programme that had a
Programme Manager. With regard to the Workshop Assistants. The Applicant main
issue appears to be his belief that they are general workers and should not report
to him as he was a Programme Manager who had lecturers reporting to him and
not “grounds staff”

[117] The Applicant should have started to perform the required duties. Surely, he could have raised concerns with college management if he was not able to get to a duty or due to time constraints. It happens that employees sometimes get to complete all required functions on a daily basis, but sometime do not get to everything due to the workload on that day. The Applicant himself testified that he could delegate certain functions. The instruction by the Respondent based on the Applicant having to start performing the said duties was not unreasonable, neither was it unlawful. The fact that a specific task is not written in a job description does not give any employee the right to refuse to do it. The employee’s refusal amounted to gross insubordination as it happened on several occasions and until such time when the employer decided to draw the line.

[118] In Wasteman Group v SAMWU [2012] 8 BLLR 778 (LAC) the Court considered the difference between insubordination per se and insubordination which must give rise to the ultimate sanction of dismissal. It was held that the difference between insubordination and gross insubordination is a question of degree. It was held that there is a difference between an employee that partially defies an instruction but later completely complies with it and an employee that deliberately refused to obey an instruction, expressly defying an instruction and challenging the authority of the employer, especially in the presence of other employees.

[119] In NUM obo Selemela v Nothern Platinum Ltd [2013] 10 (LAC), the Court confirmed the dismissal of an employee who persistently displayed insubordinate behavior, commenting that an employer should not be expected to tolerate such conduct. The insubordination was sufficiently serious and deliberate and therefore constituted gross misconduct, justifying dismissal.

[120] The Applicant’s refusal to “get involved” started around 2019 and continued until his dismissal. The Applicant should just have accepted the instruction and he should have started to perform the duties, but he did not. It was not for him to decide who should be performing the duties. It was for management to decide that.

[121] Employees have a common law duty to always act in good faith and to always act in the best interest of the employer. The Applicant’s defiance surely was not in the best interest of the Department of Higher Education and Training.

[122] I find that the Applicant was guilty as charged and that he could reasonably have been aware that his behavior was not acceptable. I am satisfied that it was reasonable of the Respondent to expect the Applicant not to refuse a reasonable instruction to perform work related duties.

[123] The Applicant raised a claim of inconsistency at the start of the arbitration. The Applicant’s claim is based on an allegation that the job descriptions of Mr. Baxter and Mr. Uys were adapted but the job description of the Applicant was not adapted, and the applicant was rather dismissed. Inconsistency is based on the principle that like case should be treated alike. There is no evidence placed before me that Uys and Baxter committed the same or similar offence as the Applicant. The Applicant’s claim for inconsistency should therefore not stand.

[124] The Applicant’s claim in respect of procedural unfairness is based on the fact that the outcome of the disciplinary hearing had not been issued by the Chairperson within 2 weeks from the finalization of the hearing. The Applicant stated that the requirement of 2 weeks was in accordance with PAM (Personnel Administrative Measures). The Applicant testified on his own accord that he did not suffer any financial prejudice as a result of the lateness of the outcome. His evidence is that that he suffered emotional prejudice.

[125] The reason provided by the Chairperson for providing the outcome late was not challenged by the Applicant party. I find that the Respondent could not provide the outcome within the 2 weeks period as there were circumstances beyond his control which prevented him from rendering the outcome within that period.

[126] I find that the dismissal of the Applicant was instituted for a fair reason and in
accordance with a fair procedure. I could find no reason to interfere with the sanction imposed by the Respondent.

AWARD

[127] The dismissal of the Applicant, John Lodewyk Von Landsberg by the Respondent, by The Department of Higher Education and Training (Boland TVET College) was procedurally and substantively fair.

[128] The Applicant’s claim for unfair dismissal is accordingly dismissed.


Signature:

Commissioner: Marlon Plaatjies

Date: 20 October 2023 Place: George