ELRC815-22/23KZN
ELRC815-22/23KZN
Award Date:
16 February 2024
IN THE ELRC ARBITRATION
BETWEEN:
NEHAWU obo MATHEBULA SW “the Applicant”
And
THE HEAD OF THE DEPARTMENT OF HIGHER EDUCATION & TRAINING “the Respondent”
ARBITRATION AWARD
Case Number: ELRC815-22/23KZN
Date of arbitration: 20 to 22 June 2023, 23 August 2023, 18 to 20 October 2023, 28 to 30 November 2023 & 18 January 2024
Date of award: 16 February 2024
Lungisani Mkhize
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration was held at the Umfolozi TVET College Central Office in Richards Bay at the dates mentioned on the first page of this award.
2. The Applicant, Mr. Sihle Mathebula was present and represented by Mr. Sthabiso Makhoba, a NEHAWU Union Representative. The Respondent, the Head of Department of Higher Education and Training, was represented by Mr. Themba Mthembu, it’s Industrial Relations Officer from the Human Resource Management and Development Section. The parties provided a main and an addendum bundle of documents each.
3. The proceedings were digitally recorded.
4. The services of an interpreter were not requested.
ISSUE TO BE DECIDED
5. I am required to determine whether the dismissal of the Applicant was procedurally and substantively unfair or not. Should I find in the affirmative, I must determine appropriate relief.
BACKGROUND
6. On 07 February 2006, the Applicant was employed on a permanent basis as a Post Level 1 Lecturer by the Department of Higher Education and Training at the Umfolozi TVET College’s Eshowe Campus. The Applicant was a NEAWU Trade Union Representative at Eshowe Campus. From 13 November 2020 to 19 August 2021, a number of incidents allegedly took place which led to the Applicant being charged and dismissed by the Respondent on 10 January 2023. At the time of the Applicant’s dismissal, he earned gross remuneration of R28 957.37 monthly.
7. The Applicant referred an unfair dismissal dispute to the ELRC on 27 January 2023 challenging both procedure and substance.
8. The ELRC then set the matter for conciliation on 15 February 2023 via a virtual platform. However, the matter remained unresolved. The Applicant then requested the matter to be arbitrated and the ELRC then scheduled the matter to be arbitrated before on shown on paragraph [1] of this award.
SUMMARY OF EVIDENCE AND ARGUMENTS
9. The Respondent called five witnesses and provided two bundles in support of their case. The Applicant also called five witnesses and provided two bundles of documents in support of their case. I only summarized the evidence which I regarded to be relevant to the dispute and which helped me to reach my decision.
The Respondent’s Application for Stated Evidence to be Disputed and Not admitted
10. Before the start of the Respondent’s main case, the Respondent Representative, Mr. Themba Mthembu submitted that some of the documentary evidence provided by the Applicant was disputed by the Respondent and should not be admitted as evidence. He was to call witnesses in support of his claim. He further submitted that the documentation disputed was the following:
• Dr. D. S. Govender Medical Certificate for 17 to 18 May 2021
• NCV Attendance Register (02-18 Aug)-Maths Literacy Lv4-29 Oct 2021
• Sibongile Zwane Statement about Student Complaint Letter Re: Lecturer Mr. S. W. Mathebula
• NCV Attendance Registers-Maths Literacy, Lv3, Grp A, S121, Lv2, Grp A, S121, Lv2, Grp 2, S121, Lv4, Grp A, S121, Lv3, Grp B, EMA7E (22Feb21 to 05Mar21)
• Dr. N.N.G. Mahlaba Medical Certificate for 23 to 26 February 2021 and for 03 to o5 February 2021
11. The Respondent Representative then called his first witness, Mr. Brian Mdlalose who testified under oath as follows: He found the Applicant guilty on count 3 because three Respondent witnesses testified that the Applicant was absent on 3, 4, 5, 12, 23, 24, 25 and 26 February 2021. Registers were presented which were not signed by Learners from his class. He was informed that had the Applicant been present, students would have signed next to their names but the documents were blank indicating that the Applicant did not lecture that day. Pages 55 to 64 of Applicant’s Main bundle showed NCV Attendance Registers-Maths Literacy, Lv3, Grp A, S121, Lv2, Grp A, S121, Lv2, Grp 2, S121, Lv4, Grp A, S121, Lv3, Grp B, EMA7E (22Feb21 to 05Mar21). The registers showed that students attended lectures by the Lecturer.
12. Mdlalose was pointed to the Dr. N.N.G. Mahlaba Medical Certificates for 23 to 26 February 2021 and for 03 to o5 February 2021 on pages 74 and 75 of the Applicant’s Main Bundle and he testified that such medical certificates were never presented to him at the Disciplinary hearing.
13. Under cross-examination, Mr. Mdlalose confirmed that the attendance registers were a template. There was no re-examination.
14. The Respondent Representative then called his 2nd witness, Ms. Nkosingiphile Zungu who testified under oath as follows: She recognized the Class Attendance registers in pages 55 to 64 of the Applicant’s Main bundle and it was used to record daily attendance of students. For a Lecturer to have the class attendance register, he is given per term. It must be taken to class daily. At the end of the term, it must be submitted to a Supervisor. It was agreed that the Lecturers would submit class attendance registers two weeks before the college closed for holidays. The Supervisor checks and completes and the Lecturer submits to TVET MIS Office where originals are kept whether filled or not. Zungu testified that she did not keep the attendance registers as a Supervisor. Page 56 showed Maths Literacy Lv 3 Grp A for the period from February to March 2021. The time period in the attendance register cover page showed S1 instead of T1 which stands for Term One, an NCV term.
15. The Register Number was correct but she did not understand the S1. During February and March 2021, students were separated within groups to Group 1A and Group 1 B. Group 1A would attend on Monday and Wednesdays. Group 1B would attend Tuesdays and Thursdays. Fridays would be admin days.
16. Page 55 of the Applicant Bundle has S1 instead of T1. Register Number instead of Term Code. Her signature was missing which meant it was not sent to her. It is supposed to indicate 1-15, OA 1 and 15-30, OA 2. Where there no classes, hours worked should not be allocated. Sequence order of days confusing. On 24 02, signature sequences should be the same. Other places should be left blank. 23 -25 and 02-04. At the bottom, Fridays should be left blank. Student name list 1 up to 14 should attend on 22 and 24 Feb 2021. Student name list 15 to 28 should attend on 23 and 25 February 2021, 02 and 04 March 2021.
17. Page 57 of the Applicant’s Bundle shows that signatures are quite few. Issue with the sequence of signatures. Same register with same time period. As per her knowledge, this was impossible. 1-15 Students list should be Group 1A, 16 -30 Students list should be Group A 2. There were no signatures at the bottom. Time period should be T1 and not S1. There are inconsistencies on the date. Page 63 shows a register signed in the space of a senior lecturer. For February 2021 to March 2021, no registers were submitted to her. This refers to Pages 55 to 64 of Applicant’s main bundle.
18. Ms. Zungu did not recognize the medical certificates from Dr. N.N.G. Mahlaba Medical Certificate for 23 to 26 February 2021 and for 03 to o5 February 2021and Dr. D. S. Govender Medical Certificate for 17 to 18 May 2021.
19. Under cross examination, Ms. Zungu testified that Dr. S Govender’s medical certificate for 17 to 18 May 2021 could have been sent by HR after it was requested by the Applicant. To submit a medical certificate, an employee brings a leave form, attaches a medical certificate and sends it to HR. Zungu further testified that she had never signed a leave form and received a sick note for this period. Zungu testified she did not receive Dr. N.N.G Mahlaba’s medical certificate from the Applicant. As a control measure, she normally took the leave forms and sick notes immediately to HR and kept text messages where people reported. She did not receive text messages for these sick notes.
20. If asked if the existence of text messages w.r.t to the leave forms and medical certificates would nullify the charge of absence without authority, Zungu replied that the dates in the charge were those dates where they were doing rounds in classes and they did not find the Applicant when she called him. There could be a sick note and a leave form signed due to an urgent request. When put to her that the College had the documents but she never gave them to HR, she replied that sometimes people bypass her. She was not accountable when an authentic document was found at the College. Her signature partially made the document an official company document.
21. The procedure regarding attendance registers was that she collected them from TVET MIS, texted Lecturers to collect them, in most departmental meetings, they agreed to fill the attendance registers every 2 weeks before holidays. Originals were submitted to TVET MIS.
22. She discussed the attendance registers with Lecturers before submitting them. She did not sign the attendance registers in the presence of Lecturers. The attendance registers in pages 55 to 64 looked like TVET MIS Reports and Campus Managers, Supervisors and Auditors had access to them. Zungu did no comment when asked if the student signatures in page 56 looked familiar to her. Looking at the attendance register on page 63, she confirmed that she would sign as a Senior Lecturer.
23. In re-examination, she denied that the signature in page 63 was not hers.
24. The Respondent Representative called Mr. Ndumiso Majozi who testified under oath as follows: In February 2021 during the Covid 19 pandemic, to conduct classes, Campus Management resolved to split groups so that Group 1, Student list number 1 to 15 would attend on Mondays. Group 2, student list number 16 to 30 would attend on Tuesdays. There were no classes on Fridays as it was administration day. A timetable reflecting such was created and adhered to. This was a resolution by the Campus Covid 19 Team.
25. Looking at the attendance registers in pages 55 to 64, Majozi testified that the decision taken by Management was not complied to. Monday shows 1 to 30 students. At the end of the term, the registers were supposed to be sent to the Education Specialist and to TVET MIS. It seemed there was an alteration. In page 56, show could there be February, March and February again. In page 58, the issue of group B, there is nothing signed on 16 February. Looking at page 59, there was an alteration made under the time period. Looking at page 60, 15 Feb is for group 1, 16 Feb is for group 2 and there are no signatures.
26. Majozi further testified that on page 62 of Applicant’s Main Bundle, the group has 23 students with 1 to 22 students attending at the same time Student number 23 attending all. Dates show 22/04 then 02 Feb and then March. Looking at page 63, that is not the signature of the Supervisor and no clarity on whether it is T1 or S1. Looking at page 64, it shows students attending together. The actual number of hours worked were reduced during Covid 19. Each subject has 5 hours. During Covid 19 pandemic, each subject uses up 2 hours weekly but in this document, there is consistently 45 hours.
27. Majozi could not confirm if the attendance register was for the period of February to March 2021 as he received a blank register from the Applicant.
28. Regarding Dr. N.N.G Mahlaba’s sick note, he did routine checks at 07:30 and sent whattsapp messages to Supervisors about Lecturers that were not in class. On the day in question, he did not see the medical certificate. He made a note that some days had to be accounted for. Regarding Dr. D. S. Govender’s medical certificate of 17 May 2021, he testified that he did not recognize it. He remembered questioning the Applicant’s whereabouts on 17 May 2021.
29. Under cross examination, Majozi testified he would never know which document to choose for the arbitration sitting if he never saw the document before. Asked to comment about documents received from the College, he testified that Employees sent documents to be signed by their Supervisors. Once signed, the documents were sent to him. Verification was done by the Supervisor. He could not lie and say he knew the document. He did not receive a report on the Applicant’s register. If the Applicant’s registers were found at the College records, to him it was not correct. He concurred that he was in possession of the disputed documents. For Mr. Majozi, the medical certificates needed to come to him with leave forms. He was not involved in Supervisor/Employee engagements. The Applicant was absent due to sickness. He had to sign a leave form, send it to his Supervisor and HR. A reason not to approve would be due not no appropriate reporting. Sickness has to be reported. One could not keep quiet for 3 days without anyone knowing where he was.
30. Only sick notes were presented. There were no leave forms. When one was sick and not unconscious, one needs to report at work. Others did it, including the Applicant. When he found students unruly in class, they would tell him that it was because the Applicant was not there.
31. With regards to Dr. Mahlaba’s medical certificates, the Applicant submitted that there was a death in his family when he was questioned about it. Majozi did not recognize the 23 to 26 February 2021 medical certificate. If the College was in possession of the medical certificate, it had to be accompanied by a leave form like the others.
32. Regarding the attendance registers in pages 55 to 64 of the Applicant’s Main Bundle, Majozi testified that there was an agreement that Group A would attend on Mondays and Wednesdays and Group B would attend on Tuesdays and Thursdays like it is justified in page 64. The attendance registers belonged to the College as they are given to the Lecturer by a Supervisor. There was no re-examination.
33. The Respondent Representative called Ms. Ngcebo Mhlongo, its Data Capturer who testified under oath as follows: She captured student and lecturers information. Pages 55 to 64 of the Applicant’s main bundle showed attendance registers given to Lecturers to give to students to sign daily. The attendance register is kept by the Lecturer during the trimester. At the end of the trimester, the Lecturer gives it to the Supervisor who gives it to her. She then kept the attendance register and did not pass it on. Page 56 showed an attendance register for the Applicant for the first trimester period. The Applicable dates were from 22 February 2021 up to 05 February 2021. She noted that there was no Senior Lecturer or HOD signature on page 55.
34. For Page 57, Maths Literacy Level 2 Group A, the time period was S121 instead of T121. Page 58 showed the two weeks from 15 to 26 February 2021 for the Applicant. Page 63 had a Senior Lecturer signature. Page 64 showed the weeks of 22 February 2021 to 03 March 2021. The attendance registers in pages 55 to 64 were not from her office as she did not receive them from the Applicant.
35. Under cross examination Mhlongo testified that no one accessed the attendance registers except for Senior Manager and Supervisor. She did not get them from Lecturers. Without the Supervisor signature, she did not accept the attendance registers. If she did not receive anything from the Applicant for February 2021 to March 2021, the Supervisor was responsible. If the Lecturer were to make copies for himself, he would first have to get a Senior Lecturer signature before making copies of his own. There was no re-examination.
36. The Respondent applied to add the following new evidence: Mr. S W Mathembula’s 1st Trimester of 2021 Attendance Register (February to March 2021), Mr. Mathebula’s 2nd Trimester of 2021 Attendance Register (April to May 2021). The Respondent’s Academic Attendance and Punctuality Policy. There was no objection from the Applicant party. The application was granted since the information was relevant to the dispute and there was no objection from the Applicant party.
37. The Respondent disputed specified evidence submitted by the Applicant and sought to have it not admitted. Since the Respondent alleged, the Respondent bore the burden of proof.
38. In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Ice and others [2003] (1) SA 11 (SCA) (handed down on 6 September 2002) the Court held that where a Commissioner is faced with two conflicting versions before him, the Commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions to determine where the truth lies. The question to be answered is whether the probabilities favor the party that bears the onus of proof. The Court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case, the Arbitrator should therefore resort to credibility where the probabilities fail to point which version embraces the truth more. The Supreme Court of Appeal explained the technique generally used by Courts in resolving factual disputes as one involving the making of findings on;
(a)The credibility (change in the witness’ version) of the various factual witnesses. This will depend on the Court’s impression about the veracity of the witness, which will in turn depend on a variety of subsidiary factors, such as; (i) the witness’ candor and demeaner in the witness box; (ii) his bias, latent and blatant; (iii) internal contradiction in his evidence; (iv) external contradictions with what was pleaded or put on his behalf; (v) the probability or improbability of particular aspects of his version; (vi) the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events.
(b) The reliability of a witness, which turns on the factors listed in (a) (ii), (iv) and (v) above, as well as the following; (i) the opportunities he had to experience or observe the event in question; the quality, integrity and independence of his recollection of the event in question.
(c) The probabilities of each conflicting version. This requires an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In a final step, the Court/Commissioner will then determine whether the party burdened with the onus of proof has succeeded in discharging it
39. Out of all the disputed evidence, no evidence was led for disputing the Attendance Register for Maths Literacy Level 4 for the period from 02 August 2021 to 11 September 2021 found in pages 27 to 28 of the Applicant’s Addendum Bundle. Moreover, no evidence was led to dispute Sibongile Zwane Statement about Student Complaint Letter Re: Lecturer Mr. S. W. Mathebula.
40. Regarding the Doctors’ medical certificates shown in page 1 of the Applicant’s Addendum Bundle and the two shown in pages 74 and 75 of the Applicant’s Main Bundle, Mr. Mdlalose was pointed to the Dr. N.N.G. Mahlaba Medical Certificates for 23 to 26 February 2021 and for 03 to o5 February 2021 on pages 74 and 75 of the Applicant’s Main Bundle and he testified that such medical certificates were never presented to him at the Disciplinary hearing. It is common cause that the Applicant was not present and not represented at the disciplinary hearing. Thus, the Hearing Chairperson could not have seen the medical certificates unless presented to him by the accused. This does not suggest that the medical certificates should be disputed or that they should not be admitted as evidence in these proceedings.
41. Ms. Zungu testified that she did not recognize the medical certificates and that they could have been sent by HR after they were requested by the Applicant. She then went on to explain the procedure of how the Respondent captures sick leave. To me, this witness wants me to consider the medical certificates as possibly fake and yet admits that they are kept by the Respondent as they were provided to the Applicant on request without any evidence that the Respondent challenged their authenticity with the Medical Practitioners concerned. Zungu’s testimony only talks to her having not seen or being presented with the medical certificates. Her testimony also implies that the Respondent could have been in possession of the medical certificates and presented them to the Applicant to use as evidence in these proceedings. Again, this does not indicate why the medical certificates must be disputed and not admitted as evidence in this hearing.
42. Mr. Majozi testified that he had not seen the medical certificates before and that according to the Respondent’s policy, they have to be accompanied by a leave form, signed by a Supervisor and sent to HR. Regarding Dr. Mahlaba’s medical certificate, he testified that the Applicant submitted that there was a death in his family on those days when questioned. This does not mean that a person cannot get sick whilst away to bury a loved one and need to see a doctor. Majozi did not deny that the Respondent was in possession of the medical certificates, instead he testified that the medical certificates should have been accompanied by a leave form. To me, this witness wants me to consider the medical certificates as possibly face and yet admits that they are kept by the Respondent without any evidence that the Respondent challenged their authenticity with the Medical Practitioners concerned. Again, this testimony does not suggest why the medical certificates must be disputed and not admitted as evidence in these proceedings.
43. With regards to the attendance registers in pages 55 to 64 of the Applicant’s Main Bundle, all the witnesses testified and showed that there were a significant number of errors and a different way of filling the attendance registers other than that preferred by the Respondent. The Respondent’s witnesses testified on how the attendance registers should have filled by the Applicant but did not show other attendance registers that were filled as they described by other Lecturers to show that the Applicant was the only one that deviated from the norm.
44. Mhlongo testified that Page 56 showed an attendance register for the Applicant for the first trimester period. The Applicable dates were from 22 February 2021 up to 05 February 2021 which was erroneous. She further noted that there was no Senior Lecturer or HOD signature on page 55. She further testified that the attendance registers were not from her office as she had never received them. Under cross examination, she confirmed that it was the Supervisor’s duty to provide attendance registers to her office and not the Lecturer’s. She further testified that if a Lecturer were to make copies of his own of attendance registers, he would have to first get her Senior lecturer’s signature before making copies. She also highlighted errors in the attendance registers. Mhlongo did not contradict her version. However, the attendance registers presented as the Respondent’s official ones, do not have the Supervisor’s signature and yet she accepted them as an authentic record of what transpired in Term 1 and Term 2 of 2021. This then points to the improbability of the Respondent’s version.
45. The Respondent showed that the Applicant did not correctly fill the attendance registers as required by clause 6.2.4 of the Academic Attendance and Punctual Policy that states that College Staff was expected to accurately and fully complete each class register by the end of each session. This is confirmed by the testimony that the Applicant used S121 instead of T121 in the time period section. There were instances where the weeks would start from April to February and then to March. Like in page 62 of Applicant’s Main Bundle, where dates show 22/04 then 02 Feb and then March. The Respondent witnesses also showed that the Applicant consistently put working a 45 hour week even though he was working during the Covid 19 pandemic period where a group of students were split into Group 1A and Group 1B for example and other students attended Mondays and Wednesdays whilst Groups 1B students would attend Tuesdays and Thursdays. From my observations of the attendance registers, the list of students did reflect mainly a pattern where one group signed in alternate days to the other with the exception of a few individuals. In some instances, the bottom half of the students did not sign throughout the week and the top half signed in alternate days as required at the time. In the absence of other attendance registers of the same period being produced to show how the Applicant alone deviated from the norm, I find it appropriate that I admit the attendance registers as they are in the proceedings so that the Applicant will have a chance to state his side as it applies to the charges against him.
46. The Respondent provided blank attendance registers for the Applicant’s subjects for term 1 and term 2 of 2021 and stated that those were the official documents in the Respondent’s possession in respect of the Applicant’s subjects. However, the Respondent did not go further to show the impact of such blank attendance registers on students’ eligibility to sit for final examinations after verification and provision of attendance information to the department before release of examination entry permits to students and the stopping of NSFAS payments to students for tuition, travel and accommodation due to student non attendances or below 80% attendance as required by clauses 10.2 and 11.3 of the College’s Academic Attendance and Punctuality Policy. I am not convinced that the affected students in Term 1 and Term 2 of 2021 bore consequences as a result of the blank attendances registers presented. Thus, the Respondent’s version with regards to the attendance registers is improbable compared to that of the Applicant who presented the attendance registers in pages 55 to 64 of their main bundle.
Ruling
47. Having considered the testimony of the Respondent’s witnesses and the submitted documentation, I find that the Respondent failed to discharge the onus to prove that there is a need to dispute and not admit the evidence provided in page 1 of the Applicant’s Addendum Bundle, pages 27 to 28 of the Applicant’s Addendum Bundle, Page 65 of the Applicant’s Main Bundle, pages 55 to 64 f the Applicant’s Main Bundle and Pages 74 to 75 of the Applicant’s Main Bundle. The Evidence will be used with the rest of the evidence provided to make a determination in whether the dismissal of the Applicant was procedurally and substantively fair or not.
The Respondent’s Case
48. The Respondent Representative, Mr. Themba Mthembu called his 1st witness, Mr. Brian Mdlalose who testified under oath as follows: In the postponement application by Applicant’s NEHAWU Trade Union Representative, the request was not to proceed on 21 and 22 June 2022 but on 06 July 2022. NEHAWU did not indicate any commitment on 23 to 24 June 2022. The College did not oppose the application on condition that the matter proceeded on 23 and 24 June 2022. 21 and 22 June 2022 coincided with NEHAWU’s branch congress. The ruling granted postponement for 21 and 22 June 2022 and denied 06 July 2022. Mdlalose ruled that the matter proceeds on 23 and 24 June 2022 and the ruling was communicated to NEHAWU Representative and the Respondent on 20 June 2022 at 08:03.
49. On 23 June 2022, the matter did not proceed as the Applicant was not well and a medical certificate was produced and accepted by the tribunal. The matter then proceeded on 29 June 2022 without the Applicant being present. On 23 June 2022, Mdlalose indicated that communication on the matter had to be done via him.
50. He asked if the Applicant party exchanged their bundle with the Respondent and was informed that it was not done and he concluded that the Employee did not rely on any documents. Since the matter had been postponed from 21 to 23 June 2022 and again from 23 to 29 June 2022 and there be no postponement application and appearance by the Applicant and the Union, he decided to proceed. He was satisfied that the disciplinary hearing was fair. On 29 June 2022, he acted in good faith, waited for the Applicant to contact his Union giving him sufficient time to consult but when he called him, he went into voicemail. Had the Applicant bundle been provided, he would have made some comparisons of the documents. The Applicant would rebut charges against him. He would have looked at them and asked the Employer questions for fairness in his decision.
51. Mdlalose further testified why he found the Applicant guilty on all the charges against him. For count 1, the Applicant failed to submit a written report about November 2020 attendance register. For count 2, the Applicant was not in class to teach students on 14, 17 and 18 May 2021. He had no consent from his Supervisor. He further signed in as present when he did not teach. Students complained to Campus Manager. Pages 24 to 29 of Respondent’s Main Bundle. For count 3, evidence was led that students complained of Mathebula’s absence through their class representative and src members as they feared they would fail. The Applicant was absent on 3, 4, 5, 12, 23, 24, 25, and 26 February 2021, a period of 8 days. His Supervisor asked if he had a problem with reporting to a female and he submitted that he did not. On count 4, staff attendance registers indicated his presence. He would use a known and an unknown signature and initials. This was fraud, anyone could insert initials in one’s absence. On count 5, a lecturer who taught full time, taught failed students on a part time basis. The Applicant refused to do so. The Supervisor shared screenshots of conversations on whatsapp. He was overwhelmed by the workload and delegated to another person but no name was given. Pages 66 to 70 of Respondent’s Main Bundle.
52. No evidence was led to rebut the Respondent’s evidence. Findings made as per pages 49 to 51 of Applicant’s Main Bundle. The Respondent submitted aggravating factors but the Applicant did not submit mitigating factors.
53. A blank attendance register for the entire semester in 2021 was presented. Students wrote and failed dismally. A reasonable person would ask the Principal to check problematic issues at the Campus. His views were limited to what was put before him and the context within which the College operates. If parties did not submit things, this was one of the results. Findings that only show one side. And not the other.
54. A witness testified that there was a meeting held on 17 October 2021 between students, their SRC Representative and Mr. Majozi. On page 64 of Respondent Main Bundle, there is an example of fraudulent time keeping by the Applicant from 02 to 13 November 2020.
55. Page 24 of Respondent Bundle showed an email from Mr. Van Schalkwyk to Mr. Majozi. Mr. Van Schalkwyk testified at the hearing as well. Pages 27 to 29 of Respondent Main Bundle showed evidence led by Ms. NIZ Zungu. Page 32 of Respondent’s Main Bundle shows Mr. Majozi requesting an explanation on allegations from the Applicant. Mdlalose was not involved at the appeal. He was not consulted. Had the documents presented at this hearing been shared, he would not be disadvantaged by the absence of the documents. Why was the Applicant’s documents not exchanged with the Respondent if they were available, asked Mdlalose.
56. Under cross examination, Mdlalose testified that he granted the 21 to 22 June 2022 postponement as he detected that it would not be significant and 23 to 24 June 2022 was coming. He refused the proposed suitable date as it would delay the proceedings and not comply with the swiftness of the process. He conceded that the refusal of the postponement took away the Applicant’s right to be represented. The Applicant was a shop steward and not treated as a normal employee as there was first a consultation process. The status of the Shop Steward was not the same as that of an ordinary member, it was elevated. The proposed date of the 6th of July 2022 was refused as the Union did not provide any reason to exclude the 23rd and 24th of June 2022. The 6th of July 2022 was too far and was not a reasonable date.
57. Mdlalose further testified that he did not recognize the program for branch congresses sent by the Union to him through the College as the 1st postponement was directed to the College. Thereafter, he advised that since the Presiding Officer had been appointed, correspondence had to come to him. He expected the parties to engage in the normal course of events regarding the hearing. When there were developments later on about the postponement, he had already made a ruling. The matter did not proceed on 23 June 2022 as there was a sick note. He then moved the hearing to the 29th of June 2022. Since there was no application for a postponement, the hearing was conducted. Had the Union applied and the Respondent agreed, he would have entertained the application.
58. The sanction of dismissal was attracted by a combination of all the charges placed before him as the Applicant was not a first time offender since there was an issue in 2015. Mdlalose did not dispute that count 5 was not a dismissible offence according to the DPSA guide but he considered the aggravating factors. For Mdlalose, the expectation to give a finding per charge was a matter of the style of writing. Mdlalose had no idea of a regulation or guideline to follow where there were multiple charges.
59. Mdlalose introduced Mr. Majozi as the Employer Representative and also as the Employer’s 1st Witness. It if happened that there was knowledge that a particular individual may wish to testify as witness, he allowed him to testify before only as a witness. During the hearing he testified without presence of other witnesses. It happened all over. The condition was that the person testifies first. For example, Mr. Mthembu could testify first before taking the role of Employer Representative. Mdlalose saw nothing wrong with it. No one asked Majozi questions. Mdlalose only asked clarity questions. Majozi did not need to be led. Mdlalose believed like the cross examiner that the practice one person playing a dual role was not business as usual.
60. Regarding the staff attendance registers signed by the Applicant in Page 53 of Applicant’s main bundle and pages 21 and 22 Of Respondent’s main bundle, the Respondent used them to justify count 4 based on the manner in which the Applicant signed the registers to show his presence. This also talked to count 1. Up to the day of the hearing, no explanation was tendered to Mr. Majozi as to why the Applicant signed that way. Mdlalose did not dispute that the Supervisor signed the attendance registers but he did not know what that meant to the authenticity of the attendance register. The Supervisor indicated that she signed and upon suspecting the issue of fraudulent activity, she called the Applicant. The Applicant brought the attendance register in page 22 of Respondent’s main bundle with a corrected signature and did not submit a report explaining why he signed like he did before. This amounted to insubordination. Mdlalose testified that the instruction to submit a report was lawful and reasonable even though the correct signature had been used as there was no explanation. If the attendance register were to be presented to an auditor, they would ask why two documents had different signatures. Had the Applicant testified, probably the decision would have been something else.
61. Regarding count 3, Mdlalose was not presented with a death certificate, approved leave application form and Respondent’s leave inquiry system printout showing Applicant was on approved leave on 3, 4 and 5 February 2021. He was told the Applicant was absent for 8 days and left students unattended.
62. Regarding whatsapp messages showing communication between the Applicant and his Supervisor about the submission of T1/T2 2020 and 2021 class registers, reporting of sickness by the Applicant to his Supervisor when asked to report to OAL2A Group 1 and the request to the Applicant and his response thereof on taking on part time students, Mdlalose testified that they were not presented to him.
63. Regarding the Maths Literacy L3 Control Register for all the terms in 2021, Mdlalose testified that they were not presented to him but he was shown blank attendance registers for the Applicant’s students. The Applicant did not collect his Register from his Supervisor to fill it. When asked if the Supervisor role was performed in the blank class attendance registers, Mdlalose testified that the Respondent’s evidence was not rebutted.
64. Regarding the Applicant’s subject’s control registers for 2021, Mdlalose testified that they were not presented to him. Regarding count 5, Mdlalose agreed that the taking up of part time students was overtime and Lecturers were paid extra for it.
65. In re-examination, Mdlalose testified that the Applicant was given more than 5 days to prepare in excess of the minimum stipulation of Resolution 1 of 2003 of the PSCBC. The hearing was conducted in terms of Schedule 8 of the LRA. With respect to the hearing scheduled for the 29th of June 2024, it was the Applicant’s duty to apply for postponement thereof.
66. There exists a document that specifies that a Presiding Officer must consider evidence in its totality before making a finding. The Applicant would not suffer any prejudice for Mr. Majozi to act as initiator and witness. Had the Applicant been present, he would have been able to cross examine the testimony of Mr. Majozi.
67. A document with non-attendance of a staff member is expected to be dealt with by a Supervisor in accordance with a Policy that regulates attendance of staff. There was no evidence that the Supervisor followed such a Policy. No evidence was put showing that the Applicant had taught part time students before.
68. The Respondent Representative called his 2nd witness, Mr. Ndumiso Moffat Majozi, the Respondent’s Campus Manager who testified under oath as follows: He was the accounting officer for everything at Eshowe campus. The only way he could communicate to the Applicant was through his immediate Supervisor. Actually, it started from the HOD and then the Supervisor. Ms. Zungu was an Education Specialist, but she was an HOD then. He started in 2017. He knew the Applicant since he joined but in 2019, there were problems in their relationship when one of the, started to iron out issues. Personally, they were not friends but had common friends and had spent time together.
69. He arrived in 2019 and sat back towards the end of the year. In 2020, he requested the College analysis per subject, per Lecturer and got given by Mr. Tembe. They had a problem with Maths Literacy and Science Lecturers. The same thing was done with Hospitality and Office Administration. They had talks with responsible Education Specialists. They requested academic reports for problematic subjects monthly. Around the 2nd semester, they were fine but only had problems with one subject. They used to be number 8 out of 8 campuses in the College. Out of 50 Colleges, they were number 48.
70. Around September, they analyzed trial results. In November 2020, HR Department stated they were having a new problem with registers for Maths and Maths Literacy. For fundamentals department, it was Mr. Mathebula and for Agriculture, it was Mr. Mabaso. He asked them to go to Ms. Zungu to address issues and he came back stating he was not assisted. He asked him to call Ms. Zungu and he told her to talk to her people. Mr. Thango came back and sad Mr. Mabaso promised to remedy the matter. He was briefed in writing.
71. Ms. Zungu said he called the Applicant and he said that they were all his signatures and HR had said there was nothing wrong with them. He asked the Applicant to send an email stating he was using the new signature by a certain date but nothing came. He wrote an email requesting a report. He then forwarded an email to the Deputy Principal Corporate Services and then he stopped.
72. In January 2021, Ms. Zungu analyzed the results and found that Maths was 27%, Maths Literacy was less than 50% and Food Preparation was 53%. He asked for a turnaround strategy. He was also a Maths and Maths Literacy Lecturer. He asked to hold monthly meetings. With Maths and Maths Literacy, Lecturers were not attending. He used to be with Mr. Makhoba and the Applicant in the same team. When free, he used to go and request HR to bring staff registers to him and he noticed gaps in the Applicant’s registers. He noticed gaps but with signatures. He wrote a comment and left a comment for the Supervisor and for the Supervisor to deal with it.
73. At month end, he did not see the register he commented on. He got a new register without comments. When he got a register, he took a photo and made a note for something to be attended to. Zungu addressed the two registers. The Applicant confirmed that the registers were correct but there were no leave forms. He then said he would not sign the registers until he got the requested documents. The registers would be sent to HR without his signatures. HR called him and he said the original is the one with his comments.
74. In their meeting, they resolved to split classes into two. Groups A1 would attend Mondays and Wednesdays. Group A2 would attend Tuesdays and Thursdays. Per month, a group would get 8 hours. In term 1, one must have taught at least 12 hours per group. In term 2, everything went well and no explanation was received from register.
75. He saw a mob of about 31 students singing and walking to the Administration Building. When he asked them what the problem was, they said Mr. Ngubane never came to class and there were no assessments. He asked them to go to Mr. Van Schalkwyk as per procedure. The Agriculture Students also said they had never seen Mr. Mgozi. He asked them to go see Mr. Thango. He then typed a very harsh email to Zodwa.
76. OA level 2 stated that they have never seen the Applicant; he only introduced himself and left. Majozi then called Management into his office and asked them to address the matter. He then called a staff meeting and informed them that students came first and if there was no teaching and learning, he would have a problem. Students were the customers. He then closed the meeting.
77. He called student class Representatives to a meeting and addressed issues per program. They told him their stories. Supervisors wanted to tell their side of the story. He requested POAs and Class registers. Mgozi and Ngubane brought their POAs and Class registers.
78. Majozi further testified that Ms. Khumalo wrote wanting to see Mr. Mgozi’s files. They discussed that they will all lose their jobs. He was tired of old tricks. He suggested it must have Lecturers, Senior Lecturers and HODs. Then everyone was scared to put their signatures on marks. Task work not owned, mentorship programs done. OA level 3 students wrote a letter. Mr. Van Schalkwyk brought it to me as they could not deal with it. It needed me as students said they have not seen Mr. Mathebula.
79. Majozi testified that the SLO came to him and OA students’ representatives said the Applicant was not coming to class. He called Ms. Zungu and Mr. Schalkwyk and told them he trusted them to deal with the matter. The SRC on his case. He asked them to put their stones in black and white, then he could interfere. He suggested that they call the Applicant but he did not answer. He called again and he said he was coming. They waited and waited. 15 minutes later, he said he could not come to the Campus Manager. He then wrote to Mr. Mathebula and informed him that students were alleging that he did not attend classes and requested him to submit attendance registers. Nothing came on the due date. Thereafter, the Applicant started going to class.
80. He then wrote charges in his language, called Van Schalkwyk and Zungu to inform them that it was beyond his control and he was taking the matter to the Labour Relations Officer. There was the proof that we needed as results were bad. Maybe the Applicant would come and answer at the disciplinary hearing. Mr. Mthethwa drafted the charge sheet and requested a bundle of documents to use at the disciplinary hearing. Once Mthethwa was satisfied, they presented their case.
81. Majozi took a picture of the Applicant’s November 2020 staff register with the Applicant’s initials that HR was not satisfied with. The Applicant corrected the November 2020 register by putting his proper signature. On 19 November 2020, Mr. Majozi requested a report from the Applicant about his staff register for November 2020. There was no response to his request. This talked to count 1. Majozi felt undermined.
82. Regarding count 4, Majozi testified that in October 2020, the Applicant signed correctly. However, in November 2020, he signed incorrectly and ended up having 2 registers for the same month but with 3 different signatures. After a text message between the Applicant and his Supervisor, the Applicant decided to sign correctly as shown in page 22 of the Respondent’s bundle.
83. Mr. Majozi also signed the corrected staff attendance register for the Applicant as done by the Supervisor. Mbongiseni from HR said the issue was not dead and the Applicant needed to come and explain himself.
84. Majozi testified that on 19 October 2021, he received an email from Mr. Van Schalkwyk where he stated that towards the end of February 2021, his OA Level 2A and OA Level 2B classes reported to him that their Lecturers do not come to class and that they only came to class to introduce themselves. The students informed him that the Lecturer was Mr. Mathebula and the subject was Maths Literacy. Mathebula did not attend for two days as per the observation he made. Van Schalkwyk then informed the Applicant’s Supervisor Ms. NIZ Zungu and reported the matter with his observations. After that, he did not receive any further complaints on the matter.
85. Majozi further testified that on the same email, Mr. Van Schalkwyk stated that on 14 October 2021, he received a letter from OA Level 3 class complaining about their Maths Literacy Lecturer. The letter stated that the Applicant was not attending classes, they did assignments and tests without being adequately prepared on the content thereof and they wrote trial examinations whilst they were not prepared for them. The students requested to receive feedback by Monday 25 October 2021 and he agreed to that. Van Schalkwyk hoped the chain of events were clear and understandable. The letter from the OA level 3 class was provided.
86. Majozi further testified that on 19 October 2021, he received a letter from Ms. Zungu, the Applicant’s Supervisor where she stated that towards the end of February 2021, Mr. Van Schalkwyk approached her and reported that OA Level 2 students reported that the Applicant had not attended their Maths Literacy class. She informed him that she called the Applicant to her office about the matter but he responded rudely accusing management of listening to students and taking their word. Level 2 students complained about not attending classes and she forwarded a whattsapp text to the Applicant but he never responded. The Applicant did not submit Test 1 and Test 2 Marks as requested. She saw the Applicant at the Central Office whilst there to attend a meeting. She questioned the Applicant about who gave him permission to attend a meeting without her knowledge. She reported this to the Campus Manager who was shocked.
87. Majozi testified that Zungu informed him that the Applicant did not submit POA files and class attendance registers. The Applicant ended up not picking her calls and responding to her text messages. The Applicant avoided coming to her office but would send a colleague to come and take things from her office. She reported the matter to him and he wrote a letter on the 2nd of September 2021 but there was no response from the Applicant. On 14 October 2021, Mr. Van Schalkwyk approached her and gave her a letter from OA level 3 class complaining about the Applicant’s attendance amongst other things.
88. On 15 October 2021, Mr. Majozi, Mr. Van Schalkwyk and Ms. Zungu called an urgent meeting and invited the Applicant to hear his side of the story but the Applicant said he was scared to come to the Campus Manager’s office but preferred to speak to her and Mr. Van Schalkwyk only. The Applicant preferred that everything be put in writing which was done through a letter written by Mr. Majozi. The Applicant collected the letter from Mr. Majozi on 18 October 2021 around 09:00 am in Ms. Zungu’s office.
89. On 15 October 2021, Mr. Majozi wrote a letter to the Applicant requesting an explanation from him about allegations against him by students. He also requested the Applicant to provide signed attendance registers, POAs (Lecturer Portfolio Of Evidence), POEs (Student Portfolio of Evidence) for all groups and lesson plans for all his lessons scheme which would assist in determining whether he taught or not.
90. Majozi testified that there was a meeting with minutes that took place on 18 October 2021. The meeting was with the SRC and Class Representatives. The minutes were taken by the Student Liaison Officer. Class Representative complained not only about the Applicant. All Supervisors were present. Majozi went back to check the side of the Lecturers but he struggled to get hold of the Applicant.
91. Majozi testified that he noticed blanks in the Applicant’s February 2021 staff attendance register. He then requested him to provide leave forms for the days he was absent. The days were 4, 5, 12, 23, 24, 25 and 26 February 2021.
92. On page 60 of Respondent main bundle, there was a death certificate for someone with Applicant’s surname that passed on 03 January 2021 and it was issued on 03 February 2021. On page 61 of the same bundle, there is a leave application form signed by the Applicant on 02 March 2021 for the period 03 to 05 February 2021. When one came back, he provides evidence and a leave form to his Supervisor. The signing of the form on 02 March 2021 was reactive action.
93. Page 75 of Applicant main bundle showed Dr. N.N.G Mahlaba’s medical notes where the Applicant was booked from 03 to 05 February 2021 in Newcastle, yet his leave form for the same period indicates family responsibility leave.
94. Majozi did not recognize the two weeks class attendance register for Maths Literacy 22 February onwards as they had blank documents. In semester 1, the Applicant did not go to class. Majozi did not recognize Dr. N.N.G Mahlaba’s medical certificate for 23 to 26 February 2021. According to class attendance register in page 56 for Maths Literacy, the Applicant was present in class. This was fraudulent.
95. The Maths Literacy Level 4 Group B class attendance register, in page 63 of the Applicant’s main bundle, there was no Senor Lecturer signature. Lecturer name was there. The register was done as a reaction to his email as they do have S2 register for semester 2. Regarding page 64 attendance register, the produced a sick note for 22 to 26 February 2021 and yet he signed in as present in class and worked 45 hours but groups were split into two. Monday and Wednesdays, 4 hours. Tuesdays and Thursdays, 4 hours. The student signatures were not actually the same as the ones in their files. A semester is something else.
96. According to the Maths Literacy Level 2 class attendance register, the Applicant was in class with students on 24 February 2021 and yet he was booked off. Hand written student names were not acceptable. Before the register is printed, Lecturers are given the control lists three times. If someone is in class but not in the register, you send them for the matter to be addresses. There is three time verification before the registers are printed. Internal preliminary verification.
97. The attendance registers in pages 55 to 64 of the Applicant’s bundle were fraudulent and done after the charges were seen. In page 55, there was a conversion from S122 to S121. The Supervisor said she struggled to get all 2021 registers. In the DHET Audit, Majozi brought 6 out of 7 registers. The Eshowe campus was embarrassed due to the finding. In page 56, class B was not taught at all. The registers were prepared in a rush. Up to page 60, there no attendance by Group B. In page 62, the Applicant started to remember the sequence of 2021. The hand written student could possibly not be registered.
98. Pages 19 to 28 of Applicant Addendum Bundle showed attendance registers for Maths Literacy level 2, 3 & 4 for August 2021where the Applicant changed in semester 2 and filled the registers correctly without any pressure as he was attending classes. He indicated absent students, holidays, staff meetings, school closed and trial exams and the signature of the Education Specialist was there.
99. Pages 35 to 39 of the Applicant Addendum Bundle showed Maths Literacy level 2 and 4 class attendance registers for 22 February to 14 April are a reactionary way of doing things and it was easy to see. That was the same register where the same thing was put in a different way.
100. Pages 55 to 59 of the Applicant Main Bundle showed what he did before receiving the Employer Bundle and matching it 22 to 26 Feb, 01 to 05 March, 08 to 30 March and 12 to 14 April. In April the Applicant was doing his marking observation and the Respondent did not charge. Later on, he changed the scope to match the Respondent Bundle. Another register used showed his real pressure at the Central Office.
101. Pages 48 to 54 of respondent Main Bundle showed VF2021 time period, the splitting of group 1 and 2 till Thursday, no classes on Friday, total number of learners absent and the correct way to do it. The attendance register are for Lecturers C E Buthelezi up to T N Nkosi and are applicable to Semester 1 in 2021. Page 58 of Applicant Main Bundle shows that on 23 February 2021, the Applicant did not teach whilst all other Lecturers taught group B.
102. Pages 1A/1B to 5A/5B of the Respondent Addendum Bundle showed proof that the Applicant did not attend classes. Before, Lecturers would fill on behalf of students. Currently, Students fill registers for themselves. Staff was trained on how to fill registers. In 2021, no one had a gap. He required marks registers from Makhoba and Mathebula and Makhoba submitted but not Mathebula. The Supervisor received blank registers. Majozi called the Applicant to request registers but did not get joy. Pages 1A/1B to 5A/5B was the only document the College had. Only the HOD and himself dealt with the TVET MIS. No Lecturer dealt with TVET Mis.
103. Pages 1A/1B to 5A/5B attendance registers belonged to the Applicant as he had 5 groups and TVET Mis only printed after verification.
104. Majozi further testified that he asked the Applicant to respond on the issues he raised like failure to report when absent and failure to account for absent days. No formal charge had been laid against the Applicant but he decided to be silent. On 15 October 2021, he wrote a letter to the Applicant requesting him to submit signed attendance registers, POA and POE for all groups and lesson plans for all his lessons. In the same letter, he requested him to submit a written response on allegations leveled against him by students. Majozi did not receive any registers or any other documents. Thus, he did not believe the registers were there. The Applicant was charged in April 2022.
105. The OA level 3 class sent a letter complaining about the Applicant to Mr. Van Schalkwyk. After receiving the letter, he called the Applicant who said he was coming but he did not come stating he was scared of the Campus Manager. He then asked Ms. Zungu to talk to him. In semester 2, the Applicant started attending his meetings. So he was confused when he said he was scared of him. The meeting was to address student complaints. They did the same thing with Mr. Mgozi and Ms. Ngubane and the process went well but not with the Applicant as he ran away.
106. Pages 72 to 80 of Respondent Main Bundle showed Mr. Makhoba’s control registers correctly filled. Makhoba had one more task to do which was Maths Literacy Level 2. Makhoba did his part, Senior Lecturer verified the marks and signed off and then sent to Data Capturer, Ms. Mhlongo.
107. Pages 68 to 72 of Applicant Main Bundle showed the date of 26/07/2021 on the footer of each page and it was correct. This was alarming to any Manager as in July 2021, T1, T2, T3, T4, T5 and T6 were not done for the Applicant. Pages 68 to 72 were not one group. Thus, students had a right to complain. Only 2 tasks were done by the Applicant. This was against the schedule. The trial was the 7th task in fundamentals. How could he finish the 4 remaining tasks in 2 months and also prepare students for the final examinations. Students were worried. They were not ready for the trial and let alone exams.
108. Majozi testified that had he received class attendance registers for all the Applicant students on 15 October 2021, they would not be in an arbitration sitting that day.
109. For February 2021, the Respondent captured a staff attendance register for the Applicant with the Campus Manager comments but the Applicant created a new staff attendance register to run away from his request.
110. From 03 to 05 February 2021, the Respondent leave inquiry system showed that the Applicant was on leave. There was a death certificate issued on 03 February 2021. Majozi did not recognize a medical certificate without a leave form. The medical certificate contradicted the system as it showed family responsibility leave.
111. Under cross examination, Mr. Majozi testified that an investigation was not conducted prior to charging the Applicant as the Respondent’s Senior Labour Relations Officer, Mr. Mthethwa said that everything they had was enough. For requesting a sanction of dismissal, he wrote what happened before and that the Applicant had no more remorse. The Chairperson decided to dismiss. Regarding count 1, it was HR that found that the Applicant used more than one signature. The matter was discussed and it was agreed that he would submit a written report at a date he could not remember. He signed as a Controlling Officer at the beginning of the following month. When it was put to him that the Applicant and his Supervisor had agreed that the Applicant would use the full signature shown in Page 22, Majozi replied that the agreement was for the Applicant to send a report and he sent an email to the Applicant to remind him.
112. Majozi conceded that he communicated to the Applicant through Ms. Zungu but since Zungu tried to resolve the issue, failed and escalated to him, it was agreed in a meeting that he would send a report which Majozi never received.
113. With regards to count 2, Majozi testified that he got to the College at 06:30, went to check if Lecturers were in class and if not there, he texted Education Specialists. He noted that on 14, 17 and 18 May2021, the Applicant was not in class. The Applicant party subpoenaed documents from the Respondent as per section 16 (2) of the LRA. Amongst the documents was a medical certificate for the Applicant for the 17th to the 18th of May 2021. The Respondent HR department provided the document. Mr. Majozi testified that he did not recognize the medical certificate as it did not come with a leave form. Even if it was with the Respondent, it should have a leave form with his approval. The Applicant’s registers indicate he was teaching students.
114. Regarding count 3, Majozi testified that he did not have Dr. N.N.G. Mahlaba’s medical notes for 23 to 26 February 2021 and for 3 to 5 February 2021. At Eshowe Campus, for sick notes to be admitted, they must be attached to filled leave forms which are signed by Supervisors, himself and then sent to HR clerk. On campus, the sick notes were not there. They must be at the Central Office. HR had control systems for documents. In the February 2021 attendance register, the Applicant indicated that he was on sick leave from 23 to 26 February 2021 and his Supervisor signed. Majozi testified that when he requested leave forms, instead of responding to him, the Applicant did it as shown in the attendance registers. The same attendance register is shown in page 76 of Applicant’s main bundle and page 59 of Respondent’s main bundle. Majozi did not comment when asked why the Applicant was charged for absence without authority when his Supervisor, Ms. Zungu signed and agreed to the knowledge of his whereabouts.
115. When asked who was supposed to give him the leave forms he required in relation to the absence reflected in the attendance register for February 2021 in page 58 of the Applicant’s Main Bundle, Majozi testified that HR would go to Supervisor and the Applicant. The Supervisor would answer.
116. Majozi received a letter from the NEHAWU KZN Provincial Chairperson dated 01 October 2021 where it was alleged that Majozi was plotting to expel the Applicant and he responded to it. The letter was sent on 01 October 2021 when corrective measures had started.
117. With regards to the Applicant’s absence on 03 to 05 February 2021, there was a leave form signed by the Applicant on 02 March 2021, his Supervisor on 15 April 2021 and captured in August 2021 by two staff. Majozi did not approve the leave form. Page 62 of Respondent Bundle showed a printout from the Respondent indicating that the Applicant was on leave from 03 to 05 February 2021. The Report was generated by HR after the leave form was captured on 06 August 2021. HR Clerk captured leave but not the campus. Majozi wrote on 26 February 2021 requesting the Applicant to submit. If the absence was due to sickness, he would have brought doctor’s notes on the 6th. If it was to bury a family member, it would have been done before he left work.
118. When it was put to Majozi that the Applicant will testify that when he was charged, he got agitated and looked for the sick not for 03 to 05 February 2021 as it was Covid 19 pandemic times having been sickly, went to see a doctor and went back to fetch his doctor’s note, Majozi testified that he requested an explanation on the seven days in February 2021 but nothing came. Thus, he thought that the doctor’s notes were an attempt to justify the Applicant’s absences. Majozi did not write to HR to check if there were reasons to charge but sent all the information to Labour to see if they could charge and they responded.
119. On the discussion between the Applicant and his Supervisor on who will take part timers, Majozi testified that it was not part of his contractual agreement. Majozi charged the Applicant as he did not respond to his letters. He did not inform him it was the Supervisor’s fault. He just sent students to the Supervisor.
120. When shown a letter from a student that indicated that the letter considered to be from the OA level 3 class was seen by other students and that the Applicant did attend to his classes but missed one or two periods in a week in 2021. Majozi testified that he had not seen the letter from Sibongile Zwane and that Mr. Van Schalkwyk would testify on the letter from OA level 3 class where students complained about the Applicant. The letter he had not seen must have been prepared for the hearing.
121. Regarding the class attendance registers for all the Applicant’s subjects, Majozi disputed that the Applicant made copies before he sent them to his Supervisor due to tensions with Supervisor. When one makes a copy, one gets all the signatures first. If a copy is made from an original, it comes back to back but there’s no continuity at the back. A semester ends in June and not in April. The same register he is being referred to, the dates were contradicting. Majozi confirmed that only TVET MIS kept complete registers and other documents and access was on request. Majozi also confirmed that a Lecturer kept student registers and could make copies.
122. Majozi testified on working arrangements during the Covid 19 pandemic times. Classes were rotated and student attendance was fine. There was agreement that 15 instead of all 30 students would be taught at a time. For the 1st term of 2021, they met on Fridays and the Applicant would be present for meetings on campus. On some days, they never saw the Applicant on campus as he was at the Central Office. Majozi instructed the Applicant to report where there were invitations and those were excluded. Due to the 80% attendance policy, they captured the Applicant as present on 23, 24, 25 February 2021.
123. If a Lecturer is absent, he informs his Supervisor so that Class Representatives can get attendance register signed. It was put to Mr. Majozi that when the Applicant was not going to be present, he sent associate Lecturers to make students sign. Majozi disputed that some students are written by hand into the attendance register as all students needed to be verified for registration with TVET MIS. Regarding the Applicant’s student’s attendance registers, only group 2 had to be taught on Tuesdays.
124. Majozi testified that he was elected as a SADTU Chairperson in May 2023. In SADTU, there was a shop steward at Eshowe. There was the same for NEHAWU and NAPTOSA. In SADTU, there was Campus Leadership. When it was put to him that a witness will testify that there were tensions between SADTU and NEHAWU that led to the conflict between him and the Applicant and that SADTU sought to weaken NEHAWU by expelling their post level 1 employees especially Shop Stewards, he responded that at Campus level, the standard was going down. He first wrote to the Applicant to get his side. He differentiated between Union and Administration.
125. The letter from NEHAWU KZN Chairperson was dated 01 October 2021. The letter from Zungu to Majozi about the Applicant’s conduct was sent on 19 October 2021. Majozi testified that the NEAWU KZNPC letter was reactionary as they sat as management and discussed the issue of the Applicant invited him to come and explain himself but he refused to come. They then wrote to him to explain himself. That was before the Union letter.
126. Majozi did not receive a grievance sent to Mrs. Du Toit against himself from the Applicant. When it was put to Majozi that he and the Applicant were not in good terms, he pointed out that in 2021, there were allegations that the Applicant was scared of him. In 2022, the Applicant worked with him.
127. Majozi denied posting anything on the Eshowe Back to Basics Facebook account after he was appointed. Majozi confirmed that when he was appointed, he was locked in a boardroom. He denied uttering threatening words about the Applicant at a function at KwaMbongolwane. He was appointed in 2019. KwaTebha was his place and he invited his staff members who came except for the Applicant. In 2013, the Applicant and others pulled out of SADTU. They were still friends when the Applicant joined NEHAWU. In 2015, Majozi worked in Mandeni and the Applicant in Eshowe. The allegation about his utterances was not raised in 2020 but only in October 2021 when corrective action was being taken against the Applicant.
128. When the Applicant was activated in July 2021, he had only done 2 tasks. He then gave students 4 tasks at the same time. The printout was done to be issued to part time students.
129. Considering the blank attendance registers provided by the Respondent, Mr. Majozi was asked if the Applicant was remunerated for the period January to June 2021 and the response was he was and that was an HR issue. The Applicant’s Control Register for Maths Literacy Level 2 in page 81 of the Respondent Main Bundle showed that the Applicant did all the tasks for 2021 and yet he was charged in June 2022. Majozi testified that the Applicant’s Supervisor informed him that the Applicant brought blank attendance registers.
130. For the February to March 2021 Office Practice Level 3 attendance register for Lecturer Nyandeni, there were no hours worked, Majozi could not confirm if it was an obvious error or it was discussed with the Supervisor. If it was an issue, it would have been raised and Nyandeni would have been required to account. The goal was to correct behavior. The Applicant’s charges carried a sanction of dismissal as the students did not do wrong.
131. In re-examination, Majozi testified that the request for explanation on allegations to the Applicant as reflected in the charges form, was issued on 02 September 2021. Another request for explanation after Management had met requesting submission of documents was done on 15 October 2021. The Applicant did not inform anyone that he feared Majozi between these periods.
132. Before the above mentioned dates, Majozi was not informed of his alleged profanities on social media, KwaTebha and KwaMtshali but did receive a letter from the NEHAWU KZNPC. No SAPS case was opened against him. But operations carried on normally. He had never been called or reprimanded to discuss the issue. All NEHAWU members locked him in the boardroom with the Vice Principal. Majozi denied using his position as a Campus Manager to push a SADTU agenda on the Applicant due to the NEHAWU and SADTU tensions.
133. From 2020 onwards, there were no SADTU and NEHAWU members on operations. They dealt with PPTs together. They socialized together. The issue of the fights was unknown to him.
134. Majozi used a progressive discipline route like he did with Mr. Mgozi. In 2021, 150 students rioted saying they did not want to be taught by the Applicant. With regards to the request for a report from the Applicant, no information about an agreement between the Applicant and the Supervisor was given to him.
135. Registers were prepared for the arbitration hearing and does not cover term 2. At the end of the term, registers were closed off by Supervisors. Signatures of students were questionable.
136. The Respondent Representative called his 3rd witness, Mr. Gerhard Van Schalkwyk, the Respondent’s HOD for Business Studies who testified under oath as follows: He sent an email to Mr. Majozi on 10 June 2021 and again on 19 October 2021 informing him about a letter he received from OA level 3 class complaining about the Applicant. He read the letter for the record. On 18 October 2021, he attended an SRC and Class Representative Meeting where OA level 3 students complained about the Applicant.
137. Under cross examination, Mr. Van Schalkwyk testified that he did not record the two days that the Applicant did not come to class but he knew they were in February 2021. He was not the direct Supervisor of the Applicant, that is why he never kept any records but he knew the chain of events and wrote them as he remembered.
138. 3 Students wrote the OA level 3 class letter. There was no identity of the students and the same content was given at the hearing. There was no re-examination.
139. The Respondent Representative called his 4th witness, Mr. Sakhile Mthethwa, the Respondent’s Senior Labour Relations Officer who testified under oath as follows: Applicant sent an email to Mr. Du Toit complaining against Mr. Majozi on death threats allegations and he asked him to use the correct form to lodge a grievance as per Resolution 13 of 2002 for Civil Servants. The Applicant was expected to know the form to use being a Shop Steward who represented others. The Applicant had lodged another grievance before in line with the procedure. A meeting was held with Du Toit, himself and the Applicant and the matter was resolved. No unfair Labour practice dispute was referred thereafter.
140. On 26 August 2022, the Applicant sent a notice of appeal which was forwarded to head office for the Minister to make a determination. Appeals were done at head office through a committee from another region. Inland does Coastal Appeals and Coastal does inland appeals.
141. In terms of item 14 of Schedule 8 of the LRA, an employer is supposed to conduct an investigation. The collection of documentation is an investigation on its own. Item 14 does not prescribe how an investigation must be done. Resolution 1 of 2003 stipulates the process that needs to be done. After an employee has been charged, give 5 days to prepare for hearing. The hearing should take place within 10 days of the notice. If there is overwhelming evidence, there is no need to conduct a hearing. This was not a special case, there were others similar to this one.
142. Mthethwa testified that he saw that there was overwhelming evidence. Charges were only allegations and the Applicant had an opportunity to respond. Evidence was checked against what was alleged. An investigation would consume time and resources. There was no need to pay when the evidence was already there. Charges were the trigger to consult with the Union. The Union even suggested that the notice to attend a hearing be sent to the Union and the Applicant copied.
143. In re-examination, Mthethwa testified that the one alleging was responsible for drafting the charges. The person who gathered the information.
144. The Respondent Representative called his 5th witness, Ms. N.I.Z. Zungu, the Respondent’s Fundamentals HOD who testified under oath as follows: She was an Education Specialist since 2015 and became an HOD on 01 August 2022. The Applicant used to report to her since 2015.
145. On 19 October 2021, she wrote a report to the Campus Manager about the Applicant’s behavior after verbally complaining to him a 1000 times. She decided to put her concerns in writing as there was no change. She and the Applicant did not have good working relations.
146. Term 1 and Term 2 marks have to be submitted before Easter holidays. If you are not in a position to submit, you report via email or in person. The Applicant did not submit and did not say anything whilst other Lecturers submitted theirs. Because marks had dropped in 2020, the Campus Manager said he would monitor Maths Literacy I 2021. She and Mr. Van Schalkwyk used Portfolio of Assessment Files (POAs) and Registers to monitor. She never received documents from the Applicant, she had to nag him to get documents. In 20 May 2015, she wrote a report that the Applicant was not cooperative. A hearing took place thereafter. Her eyes would tear when she dealt with the Applicant.
147. Mr. Van Schalkwyk came to her office and showed her a letter of OA level 3 students who were worried about their final exams. She tried to get the Applicant hear his version and to establish what could be done to assist the students but he did not come.
148. She found out that the Applicant thought she hated him and she was Mr. Majozi’s puppet. She listened to students. She did not find something solid. Those were the reasons the Applicant was behaving that way. She did not know why the Applicant would be scared of Mr. Majozi as to her he was harmless and was much younger than the Applicant.
149. The Applicant enjoyed union activity more than being a Lecturer. He could not care less about anything to do with the students. He never missed any union meeting. The Applicant was capable but he focused more on union activities. The purpose of the request to the Applicant dated 02 September 2021 was for him to account based on the report on the challenges she had with him. On 15 October 2021, Mr. Majozi wrote a letter requesting the Applicant to give an explanation on allegations against him. She eventually found the Applicant on 18 October 2021 and gave him the letter. The Applicant never responded to the letter. Had he did, there would not be a hearing held as done. The Applicant was the only one who had problems submitting. Others would go and borrow another’s file, submit, make excuses and teach later to accommodate the students.
150. Students came to her office after being informed by the Applicant to come to her. Teaching part time students was something they all did as Lecturers. The Applicant previously conducted part time classes. The students came a few weeks into the trial exams. Thereafter, it would be final exams. It was a short time.
151. NSFAS did not give students allowances when they were not attending. Thus, a need for attendance registers to be filled timeously and correctly. She then signs them and gives them to TVET MIS. If a Lecturer is absent to attend a workshop or on sick leave, they make a note that they were somewhere else. Requesting another Lecturer to go to the student groups to sign on the attendance register on behalf of the absent Lecturer was fraud. This procedure was known and the Applicant was also aware as well.
152. Class attendance registers for the Applicant for the period Term 1 and Term 2 of 2021 were blank. He only started to submit on Term 3 and Term 4. She reported this to Mr. Majozi. The Applicant did not come to collect his attendance registers from her office. He also did not respond to her calls and texts. She had hit a brick wall.
153. Zungu further testified that it was not true that the class registers for term 1 and term 2 shown in pages 55 to 64 of the Applicant’s Main Bundle were sent to her and were in her custody. When class registers were submitted to her, she checked them, signed them and forwarded them to TVET MIS. She did not keep originals.
154. For 03 to 05 February 2021, the Applicant reported that there was a death in his family. She did not recognize a doctor’s note for the same period. For the Class Registers from 22 to 26 February 2021, classes were split into two groups and teaching and learning took place until Thursdays. Fridays were blank. If students signed, it was going to be staggered. Thus, it was not a true reflection of what happened. Dlamini S.P signed 22 and 24 and is supposed to sign 01 and 03 as well. Other registers were not as the one shown.
155. For 02 to 04 of February 2021, Zungu testified that the Applicant’s entries were fraudulent as there should not be signatures on administration day. For 23 to 26 February 2021, the Applicant was on sick leave and he was not in class. There were days when the Applicant was not in class and couldn’t account. That is when students started complaining. She remembered receiving the death certificate. She disputed the Applicant’s Maths Literacy Level 3 class attendance register in page 56 of Applicant’s Main Bundle. She testified that the proper one was filled differently. During the Level 2 class commission, students progressed in the subjects but they did not know who the Applicant was.
156. Regarding Count 1, it was not true that there was an agreement between her and the Applicant regarding the November 2020 staff attendance register for the Applicant. They had a meeting about the different signatures and he had to send reasons why but he did not. The HR clerk involved passed away due to an accident. An intern came requesting her to sign and she did to appease the HR office but there was a query on the register.
157. Regarding Count 2, when Mr. Majozi came in, he made everybody aware of the monitoring on anyone and he stated he was not targeting anyone. He would ask me when he did not find a Lecture in class and she would answer in the affirmative if she knew. The Eshowe campus was not doing well in some subjects. The monitoring was done to pinpoint where the problem was. The move was communicated to everyone in a meeting. She would go and check if a Lecturer was in class and if someone from the Central Office came, they would say they were targeted. Majozi wanted to prevent that. Between 07:15 to 08:00, Majozi would go and monitor to see if students went to class.
158. When a particular Lecturer was absent, he had to report earlier via text or a phone call so that further arrangements could be made. Regarding count 2, she did not receive communication from the Applicant as he did not speak to her. She would witness students scattered all over and most of the time it was the Applicant’s students. He would explain once he was contacted. Regarding the second part of count 2, she would see the Applicant and then he would disappear having left the attendance register signed. When she called him, he would then quote an emergency at home.
159. Regarding the Applicant’s February 2021 staff attendance register with Majozi’s comments, she had not seen it with comments the last time she saw it. Her Supervisor had asked her to explain what happened. Both registers were signed by the Controlling Officer and the one from the Applicant’s bundle indicated sick leave for days the Applicant was absent. No Lecturer was allowed to sign the register for another. One drew a line and wrote that the other Lecturer was on sick leave and the page is initialed.
160. The class attendance registers between pages 5 and 64 of the Applicant’s bundle came later after the Applicant sent a sick note. The attendance registers were not sent by the Applicant and other Lecturers. She asked for term 1 and term 2 registers but the Applicant submitted blank ones. They put VF (full time) and VP (part time) as they were doing NCV. It could not be S1.They did not scratch in registers. If a mistake was made, one requested a new one to be printed. The Applicant never submitted registers until later that year.
161. Regarding count 4, during invigilating times, Majozi requested Lecturers to mark scripts and registers. Lecturers would sign for each other to be able to disappear. She reported to her Supervisor that Lecturers were changing signatures. Lecturers were told to stop and they did but the Applicant continued. He never told his Employer he changed his signature. He was asked to write a report explaining why he changed his signature. An intern came bringing the Applicant’s November 2020 register. She informed her it was in question but she insisted and she signed.
162. Under cross examination, Zungu testified that the medical notes covering the 17th to the 19th of May 2021 came after the leave had been taken and after numerous enquiries. An employee must produce a sick note immediately on their return to work. Zungu got the medical note in question from HR and not immediately. The leave form was not accompanied by a leave form. The Applicant was not authorized to be absent. The Applicant was supposed to bring a medical certificate and to follow procedure. The Applicant brought the medical certificate but late. She could not remember if she saw the Applicant on the days in question but there was no communication between them. She remembered that the Applicant came to campus but he did not sign on both days. On 17 and 18 May 2021, the Applicant signed as present in the original document and the attendance register presented was an opinion and speculation.
163. For the dates 03 to 05 February 2021, the Applicant brought a death certificate with a leave form. Zungu agreed that the medical certificate and signed leave form by the Applicant, her and HR was authorization for leave of absence from 03 to 05 February 2021. The Applicant was charged as he had a sick note for the same days. The Applicant was charged as he was called to a meeting to account but did not. Even the registers came later. The Applicant was charged in 2022. Zungu did not comment when it was put to her that when the charges were drafted, she had seen the documents and was aware of them.
164. For the dates 23 to 26 February 2021, medical certificates were submitted later. She authorized the Applicant’s absence as he provided proof late in the year. Zungu and Majozi wanted the Applicant to account w.r.t the events by writing a report on why he did not attend class. They did not get a report, instead the Applicant started sending documents. When asked if it was mandatory to write a report for days absent, Zungu replied that it came to that due to what had happened but it was not legislated.
165. The report was requested in respect of all the dates and the Applicant had to reply by October of that year. When a meeting was held to discuss the issue of different signatures, the Applicant was angry. The staff register with the known signature of the Applicant came via HR and without a report explaining what happened. Attendance registers were kept in files for the Department and HR checked if they were all signed. For those that did not sign, they consulted and checked steps of controlling the register. If there was query, she would highlight it and sign. The attendance register in page 22 of the Respondent’s Main Bundle was partially correct as it was supposed to come with a report stating the Applicant had opted to revert to his old signature.
166. Zungu further testified that the Applicant was employed fulltime. Teaching of part time students was part of his contract of employment. Everyone in the College knew that if students fail a subject, one must give them tasks. This was not minuted and was not part of the duty load given to a Lecturer.
167. When put to Zungu that the blank registers for term 1 and term 2 of February 2021 were used as evidence that the Applicant did not go to class, she replied that the Applicant was not marking it and she could not say which day he did not go to class. In her system, the Applicant did not submit. It was half true that part time students were issued to her. Zungu was shown Mr. Mchunu’s control registers for level 2, 3 and 4 in English First Additional Language. The Applicant did not have his control register as he did not come to collect it. Mr. Mchunu taught level 2, 3 and 4. For students to sit for an exam, they need to obtain a minimum percentage of 37% on their internal continuous assessment from task one to the trial. Zungu replied yes and no when asked if teaching and learning took place if a student completed ICAS. From Mathebula’s control register for VF21 03 Maths Literacy L2, the students passed. The Applicant submitted scripts with marks to her. Task 1 and task 2 were submitted late. Students did not know what would be written in their trial exam. By then, a Lecturer was supposed to send his own test. She was interacting with Mr. Makhoba that year and non-moderated scripts could not be taken.
168. On Nyandeni’s attendance register shown in page 53 of Respondent’s Main Bundle, students signed the 1st 4 columns. During the Covid 19 pandemic, the register was signed.
169. In re-examination, to check the quality and to ensure students were assessed, she ended up getting assessments done through Mr. Makhoba. In spite of recorded results from the Applicant, students were scared to write final exams as they were not prepared enough since they received assignments and not written tests.
170. A Lecturer teaching all levels was half-truth because they were not supposed to take all levels. However, sometimes when a Lecturer got sick, she had to call others to take his place.
171. The Applicant informed Zungu about a death in his family but after she looked for him. On 02 February 2021, according to the staff attendance register, the Applicant was present and yet Zungu testified that she had to look for him, call him between 07:35 to 07:45 and got no answer. She then received a message at 08:13.
172. The Applicant was charged for not reporting and talking to his Supervisor and she was always frustrated. For assessments and submissions, she had to go via the Campus Manager. The Applicant only cooperated in late 2022 but not in 2020 and 2021. Hence, she communicated via Mr. Makhoba.
173. If a Lecturer was not going to be at work, he had to report before 7am. If something came up, he had to report immediately and make arrangements. If one was incapacitated, a relative could report on one’s behalf. On one’s return, one has to update within 5 days but preferably immediately.
174. The Respondent Representative called his 4th witness, Ms. Hlengiwe Xulu, its Student Liaison Officer, who testified under oath as follows: She started on her current position in January 2020. She was a secretary at an SRC and Class Representatives Meeting that took place on 18 October 2021 from 10:30. She confirmed that what was minuted is what transpired at the meeting and that she drafted the minutes. Students reported that the Applicant did not come to class, they got marks while they were not taught and that he would no longer teach them if they reported him to the CM.
175. OA level 3 students reported that they were not taught Mathematical Literacy, they did have marks and DP’s while the Lecturer was not teaching them. The Applicant asked students to specify which chapter they were struggling with so that he could assist them in that particular chapter. Level 2 students reported that the Applicant would give class representatives 3 assessments at a time. When it was time to for submissions, it was the student’s responsibility to call and ask his whereabouts. When asked when he would be at the office, he would say he did not stay at the office. Another student reported that they usually submitted their assignments in the car as the Applicant did not come to class.
176. Under cross examination, Xulu testified that liaising between management and students meant taking student concerns to management and management feedback to students. She types the minutes same day of the meeting. She was not a participant in the meeting, she only wrote. Prior to the meeting, she asked students to write a letter but they sent it to Mr. Van Schalkwyk. She did not want evidence of what the students reported, she only wrote minutes. There was no reply.
177. The Respondent Representative, called his 5th witness, Ms. Ngcebo Mhlongo, its Data Capturer for the Eshowe Campus who testified under oath as follows: She reported to Management everything that happened in her department. She reported on student marks, student registrations, she printed registers and captured the absenteeism of students.
178. In respect of the blank class attendance register provided by the Respondent, Mhlongo testified that it was a permanent register copy which linked a Lecturer and his Students. In the documents, the Lecturer was the Applicant. There was nothing that informed what period the register was for as the Applicant did not submit it. To see if students attended class, she used the register. Her office was the custodian of student registers or archives.
179. She recalled that in Trimester 1, she did not receive a register from the Applicant’s Supervisor. Term 1 was January to April. Term 2 was May to July. Considering the provided Applicant’s class attendance registers for 1st half of year 2021, she testified that the time period showed S121 instead of VF21. It had no signatures. During Covid 19 pandemic times, students’ classes were split into two groups. In page 58, there is student name printed by hand which was not allowed. Lecturers were not allowed to scratch on registers. On T1, they requested registers but did not receive them. She then sent an email to the Campus Manager and he brought back blank registers from the Applicant. She got confused then. In page 56 (Maths Literacy L3), it seemed the Applicant saw all groups at the same time.
180. Under cross examination, Mhlongo testified that Lecturers had to put a register code, students had to sign and Lecturers had to send them to their HODs and the HODs had to send to her. Lecturers should sign the register if they receive it from her. When asked how she dealt with the Lecturer if they did not sign, she replied that if audited, they would see it as it was. She did not ask why it was not signed.
181. Considering the attendance register for Maths Literacy Level 4 for the Applicant in page 62 of the Applicant’s Main Bundle, Mhlongo confirmed that some students did sign. Some students did not come during the Covid 19 pandemic period. They did not follow the new routine. If there were errors, the Supervisor had to ask for a new register to be printed. The register was not right if it had errors. There was no reply.
182. In his closing arguments, the Respondent Representative submitted as follows: He submitted a summary of Mr. Mdlalose, the Presiding Officer’s testimony on the procedural fairness of the disciplinary hearing. He also submitted Mr. S. B. Mthethwa’s testimony about the procedural fairness of the consultation process, disciplinary hearing and the appeal process. He further stated Mr. Mthethwa further revealed the Respondent’s grievance procedure and stated that apart from the fact that Mr. Mathebula is a seasoned trade union leader (he ought to know the grievance procedure) he had represented staff members during grievances on a number of occasions, the same procedure was known and communicated to all staff. He further stated that his office was the custodian of staff grievances and he had no records of Mr. Mathebula lodging a victimization grievance.
183. Mthembu further stated that with regards to the allegation of victimization, the allegation was a fallacy and had to fail in that, the Applicant failed to explain why he did not follow the grievance procedure nor lodge a grievance, the trade union representatives failed to explain why the union never lodged a formal grievance or dispute at adjudicative for a regarding the alleged victimization. The trade union failed to produce evidence of its actions taken about victimization, even if there were any, such did not elicit the alleged seriousness of the allegation. The Applicant’s failure to at least show evidence of criminal cases opened against Mr. Majozi, did not indicate the alleged seriousness.
184. Mthembu further submitted his summary of the testimony of Mr. Majozi. Mthembu submitted that the notion that teaching part- time was not part of employment contract and therefore Mr. Mathebula was not obliged to teach part-time, was misleading in that there was no need for an employment related agreement to be in writing, some agreements are implied through previous practice, which created an entitlement to the other part, for any party that wishes to terminate a right/ entitlement accrued to the other party through culture or practice, the party that intended to cancel the practice needed to timeously inform the other party so that reasonable arrangements as contingent measures can be employed timeously.
185. The Respondent Representative further prayed that the Commissioner finds all viva voce evidence from the Applicant party as unreliable and not credible in that, all witnesses on behalf of the Applicant appeared to be very close comrades who are bound by the concept of camaraderie, and particularly that in spite of Mr. Mathebula’s witnesses being union leaders, none of them was able to persuade Mr. Mathebula to follow the Respondent’s grievance procedure nor the dispute resolution mechanism, this supported the Respondent’s assertion that the victimization allegation was unsubstantiated and must fail.
186. The Respondent Representative further submitted that the evidence of the Applicant presented an obvious case of a desperate self- defense. Mr. Mathebula failed to give a plausible reason on why did he not respond to Mr. Majozi’s correspondence, even just to indicate the same versions he put before this tribunal. He further failed to appraise the tribunal as to his failure to present the same bundle of documents before the Presiding Officer during internal hearings up to the Appeal’s Authority, to assist the Respondent to prove his innocence and close the matter.
187. Mr. Makhoba’s evidence had to also be dismissed in that it lacked truthfulness in that he also failed to admit to an obvious dispute resolution mechanism that was not followed. His assertion that victimization claims were factual, contradicted the reality that even himself as the advisor to Mr. Mathebula, he did not persuade Mr. Mathebula to explore the dispute resolution mechanism. His assertion about lecturers signing student attendance registers for each other must be dismissed as the same was disputed by Ms. Zungu, Mr. Majozi and Ms. Mhlongo.
The Applicant’s Case
188. The Applicant Union Representative, Mr. Sthabiso Makhoba called his 1st witness, Mr. Sihle W. Mathebula, the Applicant who testified under oath as follows: The background of what happened before he was dismissed was that he was elected a NEHAWU Branch Secretary in 2014 when the majority union was SADTU. Thereafter, most staff joined NEHAWU under his leadership. They understood that the union and the Employer were partners. SADTU used to get involved in appointments. SADTU then deployed their Chairperson to Eshowe to turn tables due to sectorial fights in pursuit of the one sector one union quest which came from COSATU. The idea was that if the SADTU Chairperson charged Mathebula, the NEHAWU Branch Secretary, he would win onsite.
189. Mathebula further testified that his father died when he was six years old and their family’s inheritance was taken. His mother then took them to the church. They then had differences with Mr. Majozi and fights started emanating with the charges against him.
190. He was employed as a post level 1 Lecturer to conduct teaching and learning, fill documents to prove his presence, to do assessments and to prepare students for exams. He applied different styles based on student capabilities as others came with grade 9 and others with grade 12. He had to file attendance of meetings after conducting and attending them. He also performed union activities.
191. SADTU Shop stewards had offices and reduced duty loads to cater for that. At Eshowe Campus, this was not done for him being a NEHAWU Shop steward. Some Lecturers used to teach 45 students when the floor could cater for less. Mr. Mthethwa conducted an investigation and advised that classes had to be divided. With respect to his charges, no investigation was conducted and he was awaiting it. He knew that every time Ms. Zungu called him, there would be a problem. During the intention to charge consultation, the Principal came with already written charges and they were read. Count 1 and count 2 were the same. Hence, charges were split.
192. The investigation report template was not used prior to the sitting before the charges. It was the same report a Shop steward required when they represented an employee.
193. Regarding the charge that on 14 May 2021, the Applicant was found not to be in class when the CM did routine monitoring rounds and that he had left students unattended without the consent of his immediate Supervisor, the Applicant testified that he was at work, signed the attendance register and his Supervisor signed. He pointed to the fully singed May 2021 attendance register in page 73 of the Applicant’s Main Bundle as evidence. The document was an official document with a month, year, date, his signature, his starting time, his knock off time and his Supervisor signed. The document was the property of the Respondent.
194. The Applicant pointed to Dr. D. S. Govender’s medical certificate for 17 to 18 May 2021 and stated that he did not sign for 17 and 18 May 2021 as he had tendered the document for his leave of absence. Mathebula further testified that when on sick leave, he informed his Manager, went to HR who helped him fill the leave form. HR then consulted stakeholders to sign. Going to HR with the form helped prevent him filling the form incorrectly as it happened sometimes. This is the procedure he followed as it was scarce for a Manager to print a procedure at the College.
195. The Applicant further showed his Doctor’s notes from his file indicating he consulted him on 17 May 2021. He also wrote a sworn affidavit on 05 April 2023 confirming the details of his Doctor’s medical certificate for 17 and 18 May 2021 after he was charged. When he was charged, the Respondent had a copy of his medical certificate for 17 and 18 May 2021 and provided them after being subpoenaed on 03 April 2023 for this arbitration hearing.
196. The Applicant did not sign as present on 17 and 18 May 2021 as he was on sick leave after attending his Doctor. He signed as present on 14 May 2021 as he was on Respondent premises since he did not keep a file attendance register. The Respondent alleged he in as present when they had his supporting documents because SADTU wanted to exert territorial power on NEHAWU.
197. On 13 October 2021 before he was charged, the Applicant sent a grievance due to personal attack by his Manager to Mrs. Du Toit, the Acting College Principal. Amongst other things, the Applicant alleged that Mr. Majozi made a public statement that he was going to kill him in a place called KwaTebha in King Dinuzulu Location.
198. Outside work, the Applicant and the Campus Manager had no relationship as the KwaTebha place was about drinking and he did not go to such places as he was a church person. He escalated to the next level within his union. At Eshowe, he was there to work whilst the Campus Manager grew up there. He was seen as a person attacking a local.
199. The NEHAWU Provincial Chairperson, Mr. Siyanda Zungu wrote a letter to Mr. Majozi on 01 October 2021 entitled “The Alleged Agenda of the Eshowe Campus Manager to Silence NEHAWU Union Leader”. Amongst other issues, the Zungu cited an incident that took place on 25 September 2021 at a place of Mbongolwane when he was in an Mtshali family function where the CM consistently plotted to excel the Applicant at work by any means possible and further lobbied for union and public support in executing his plot. The utterances were shouted in front of Mr. Zungu, his regional leaders, REC members plus ordinary citizens, TVET and Government workers. Count 2 showed it was done to remove the Applicant even though he possessed medical certificates and was present at work.
200. Regarding count 3 where the Applicant was charged for absence from work without a valid reason (s) or authority in that he allegedly absented himself from work on 3rd, 4th, 5th, 12th, 23rd, 24th, 25th and 26th of February 2021, the Applicant testified that on 3 to 5 February 2021, he reported to the Respondent that he had to go due to the death of his father. On such dates, he also went to see a Dr. Mahlaba as he had Covid 19 related symptoms. He then showed his father’s death certificate, leave form for 03 to 05 February 2021 signed by himself, his Supervisor and checked and captured by two individuals and the Respondent’s printout showing the Applicant was on leave on 03 to 05 February 2021. He returned to work on 08 February 2021 and submitted the leave form on 02 March 2021 as he was attending classes.
201. The Applicant further testified that the Respondent still charged him for unauthorized absence on 03 to 05 February 2021 when they were in possession of his supporting documentation due to the same reason as he was charged for count 2. He also testified that Mr. Majozi was informed of his grievance against him and this was a counter attack.
202. His leave for 03 to 05 February 2021 was captured as family responsibility leave. When he was charged, he checked and found that he also had doctor’s a medical certificate and he provided it.
203. With regards to absence on 23 to 26 February 2021, the Applicant testified that the staff attendance register for February 2021 in page 59 of the Respondent’s bundle showed that his Supervisor noted that he was absent due to sick leave. The Applicant showed Dr. Mahlaba’s medical certificate for 23 to 26 February 2021 in page 74 of the Applicant’s Main Bundle. His Supervisor was aware of his absence but he was charged due to a witch hunt. He was not in breach of his contractual duties as he sent documents explaining his absence.
204. Regarding count 4- fraudulent timekeeping on 2, 3, 4, 5, 6, 9, 10, 11, 12 and 13 November 2020, the Applicant testified that the attendance register was kept by the Respondent and he had to be at work to sign. He marked himself as present and his Supervisor confirmed such. At the time, he was not aware of any circular, procedure requesting an employee to fill a form to change a signature.
205. The Applicant testified that he used to sign as shown in page 64 of the Respondent’s Main Bundle in front of his Supervisor. Whilst he had signed half way in the register, he had a meeting with the Campus Manager and he informed him that that his signatures were not known to the Respondent and he had to write a report stating he was changing his signature. His Supervisor, Ms. Zungu told him to just go back to his old signature and fill anew. He was given the form in page 63 of the Respondent’s Main Bundle for November 2020 to sign.
206. Regarding count 1, where the Applicant allegedly failed to carry out a reasonable order from the CM to submit a written report about the November 2020 attendance register to him by 14:00, the Applicant testified that after a meeting he had with the CM, his Supervisor, Ms. Zungu and himself had an agreement for him to revert back to his old signature and he thought the issue was covered as his Supervisor was involved. He thought the matter was finalized. He further testified that where he worked, he did not have an office with internet. He sometimes checked emails on Fridays. When he saw the email from the CM, he had already dealt with the issue with his Supervisor. The Report was part of the options. He took the option of correcting the signature.
207. Regarding count 5, where the Respondent alleged that on 19 August 2021 the Applicant refused to teach Mathematics Literacy part time class and instructed students to collect tasks from his immediate Supervisor instead, the Applicant testified that part time classes were not part of his contractual employment. He had never signed any document to confirm he was obliged to do part time classes. The part time classes were overtime which he refused. He spoke to his peer who agreed to do it. The registration officer would send a list of registered part time students.
208. He made arrangements with Mr. Makhoba and it was Ms. Zungu’s role to allocate work to Mr. Makhoba. It was only Eshowe Campus staff that was not paid for overtime. Other Campuses got paid. The Applicant apologized for not being able to take on part time students due to being overwhelmed with work and further stated that since it was overtime, he pleaded that his Supervisor allocate the work to someone else. Students had to be assessed and tested. His peer took over and they worked together and students were assessed and got their DPs. He even assisted him when he got a chance.
209. The Respondent charged him as they were on a witch hunt so as to find anything wrong on him to charge and dismiss. The CM could not exercise his authority freely like providing a car to Lecturers to collect medication in Durban. He could not do such with NEHAWU in the picture. If students failed, they were out and had to register to repeat as part time students. They were not taught but only given assessments to do at home to accumulate a DP. The part time students issue was not regulated, it was a gentlemen’s agreement. There were no contact sessions and not even a timetable which determined when contact sessions would be.
210. Regarding the blank attendance registers, the Applicant testified that they were similar to the original attendance registers for students. The attendance registers were received from the Central Office TVET MIS, given to CMs who sent them to Campus TVET MIS Offices. The Lecturers get them from their Supervisors. Ms. Zungu gave him the attendance registers. He filled his particulars and gave the attendance registers to students to sign. He submitted his attendance registers to his Supervisor and not the CM. He could not do such a thing of submitting blanks to the CM with 12 years’ experience.
211. On the NCV attendance registers he provided from page 55 to 64 of the Applicant Main Bundle, he wrote Semester 1 instead of VF on the time period because during Covid 19 pandemic, they received registers that covered 5 months and not trimesters. He made an error on S121 for the Maths Literacy Level 3 group A class and submitted it as is.
212. There was no HOD signature on his attendance registers because in 2021 his working conditions and treatment as far as operating were bad. He felt like a goat amongst sheep. He then decided to have his own copies. When he made the copies, it was to prove to the tribunal that there was teaching and learning even though management did not sign.
213. In the Maths Literacy level 3 attendance register, he wrote 2 instead of 3 for March. Students that stayed outside campus were sometimes late on morning periods. He focused on giving them content and sometimes they did not come. People with chronic conditions were affected. Students made errors on registers. To confirm presence, he used to call out names and tick. Some registers had hand written names as Supervisors would allow students to class so that the registers had to be corrected later due to favoritism. He was told to append student names on the register and he complied. Mpanza probably registered late.
214. When a Lecturer was away, he left the attendance register in the pigeon hole. Other Lecturers would take registers to students to append their signatures. He gave tasks to students or his peer gave tasks to his students. His students were his peer’s students and his peer’s students his. Even when a Lecturer was absent, his peer would get his students to sign. This was also done when other Lecturers were invigilating. At Eshowe Campus, they gave students registers to sign.
215. On the Maths Literacy level 4 attendance register for February 2021, students signed on 23, 24 and 25 dates as teaching and learning took place as his peer Lecturer took students. They agreed that since he was sick, his peer would assist by taking students. Then students appended signatures as teaching and learning took place.
216. In the Control Register (VF21 03) for Maths Literacy level 2 for Mr. Makhoba, T6 was hand written and later sent to Data Capturer to print out after verification was done. Then it is sent out to the Data Capturer.
217. In the Maths Literacy level 3 for Mr. Makhoba, there were also hand written marks as it happened that a draft from the Data Capturer be rectified. Students were adults who went on maternity leave and came back and someone had to update their information.
218. For the Maths Literacy level 2 attendance registers for the Applicant, from number 1 to 14, students attended during the day around 11:15 to 12:00. From Mthimkhulu N, their periods were in the morning and used to travel. So he gave them content so that they could write examinations.
219. In the Maths Literacy Level 4 Control register for term VF21 03 for the Applicant, Mpanza L appeared after he was verified by the HOD from the attendance register where his name was hand written. Thus, the Respondent was not correct about the non-usage of hand written names. Mpanza was writing supplementary examinations, if he passed, he would attend the next level. The Applicant inserted him as he was sent by the HOD. The same applied for Mpanza N. P.
220. In the Maths Level 4 Control Register for VF21 03 for the Applicant in page 83 of the Respondent Main Bundle, there was no dismal failure as submitted by the Respondent. The T1 average was 70%, T2 average was 60% and a few students got less than 30% pass mark on T4, T5 and T6. Even if students did not pass, the procedure to follow is for the HOD to talk to the Lecturer and intervene and that was not done. The Respondent was punitive in its disciplinary measures to ensure that he was not in the premises.
221. Control register comparisons done by the Respondent witnesses were biased as Makhoba’s were from the HOD and the Applicant’s from TVET MIS. Makhoba’s could be corrected by the Applicant’s had no option to be corrected.
222. The disciplinary hearing was heard on 30 June 2022 which was three days apart from 06 July 2022 due to the weekend in between. The reason given by the Union was clear but the one to deny was not clear. This showed that there was an ulterior motive.
223. Under cross examination, the Applicant testified that he was a Branch Secretary for NEHAWU at Eshowe since 2014 and amongst his duties was to represent employees in grievance sittings. If a grievance was not resolved, it went to the next level. He assisted members on a part time basis.
224. He lodged a grievance due to a personal attack from the CM. In December 2020, Mr. Majozi said he would kill him. In another occasion, the CM said he would expel the Applicant in the presence of the NEHAWU Provincial Chairperson and other members of the public. He was not present when the CM threatened to kill him at KwaTebha. He was informed in confidence by a certain individual. He expected the Respondent to investigate further. He did not report the death threats to the SAPS as the person who told him asked him not to share his name. He found the threats very serious but he also considered the safety of the person who gave him the information.
225. The Applicant did not refer a dispute to the PSCBC nor the ELRC as he was not thinking straight that time. He was afraid as he was observing what was taken place in sight. He had no bodyguards. The person who did this had all the time and support. He did not escalate the grievance he reported to Mrs. Du Toit as he was not thinking straight. He forgot to do a lot of important things as he was so much afraid.
226. He did not furnish the Respondent with his bundle of documents as the hearing. The documents in pages 55 to 64 of the Applicant’s Main Bundle were already at his possession at the time of the hearing. The Respondent had the documents. The Respondent used them to charge and dismiss him. In 2021, they received registers for semesters, January to June 2021 and the document was the property of the Respondent.
227. He did not respond to Majozi as it was Covid 19 pandemic times and they were trying to focus on teaching and learning. He had no chance to submit. If Zungu disputed his registers, it was surprising as there was no paper trail of submission of registers. His failure to respond to Majozi led him to be charged as during Covid 19 pandemic, everybody was busy and he was also aware that Majozi was trying to get read of him. He did not respond to the letter dated 02 September 2021 as the information required was already with HR. Signing in whilst not present was not true. When he was away, he had to give information so that he could be paid. He knew the Respondent would find him guilty anyway. It was not true that he pre-empted being found guilty at the hearing and did not come.
228. In the attendance registers, the bottom half of students did not sign, he focused on giving them content. He sent his attendance registers to Ms. Zungu and from there he did not know what happened to them. Most of the students’ period was in the morning. In 2021, most staff submitted at the end of the semester.
229. Before a Lecturer inserted a student, they underwent the registration process and once done, the Supervisor instructed a Lecturer to insert by hand. On the issue of 3 different signatures on his attendance register, he testified that he had a meeting and it was said he either corrected his signature or officially changed it. His Supervisor advised him to revert back to the old signature. He did not do the report as there was an agreement that he reverted back to the old signature.
230. In filling the attendance registers, he used the old Coltex System instead of the TVET MIS Program and that was his error. He made a mistake in March and put February. If a Lecturer was absent, student could register and leave. Attendance register put on a pigeon hole and given to students to sign while their Lecturer was away. He had 4 groups and needed assistance from colleagues to invigilate. Thus, there was no fraud if team teaching was used. On the days he was away, he used to leave with students with his peer. He disputed that if a Lecture was in, then all students were deemed to be present. It had never been done like that. He and his peer Lecturer assisted each other to assist their Fundamentals Supervisor. She only said he made arrangement for this sitting.
231. Part time lecturing was an extra job and had no contractual duty. Hence they paid more for it. He doing so much stuff and was studying at UNISA. He asked Mr. Makhoba to take part time students for him to get more remuneration. He left Ms. Zungu to do her own delegation knowing he had made an arrangement with Mr. Makhoba. He did part time work before and there was no contract for it. He carried it out as he was not busy with any other issues at the time.
232. In re-examination, the Applicant testified that when the Hearing Presiding Officer refused to grant the hearing postponement, he did not apply his mind properly. To the Applicant, the presiding officer was influenced and not impartial. He never received any feedback from the Deputy Principal regarding his grievance. Given that the College Acting Principal was a SADTU member, it was not surprising that she did act on the serious allegations from the CM. The Applicant did not respond to the letter dated 02 September 2021 and on 25 September 2021, there were utterances made to dismiss him as the CM was planning to dismiss him. Even if students attend fully, there were not funded by NSFAS if they failed.
233. The Applicant Union Representative called his 2nd witness, Mr. Siyanda Zungu, the NEHAWU Provincial Chairperson who testified under oath as follows: He wrote a letter dated 01 October 2021 to the CM because when he was invited by a certain comrade Nhloso Mtshali to a function, Mr. Majozi came to greet them and said some words which he did not take too kindly on. The CM stated he was plotting to expel his NEHAWU Shop steward from work. This was done in public in the presence of regional leadership, REC members. Majozi said NEHAWU had to give him the Applicant as he had troubled him and other Shop stewards should not come to his defense. He said Mthembu was his friend. He wanted to dismiss the Applicant as he had troubled him (“Usengihluphile”). The CM’s action was unprofessional and unethical. He was lobbying the Community of Eshowe not to support him as an Educator and Shop steward. Majozi was a sister union (SADTU) member.
234. Between SADTU and NEHAWU, the relations were not good. Active Shop stewards of NEHAWU were suspended and dismissed. It happened at the Esikhawini Campus. When he was a Regional Secretary, noted that Shop stewards of SADTU and NEHAWU were not in good terms.
235. He concluded that when Mr. Majozi uttered the words “he will dismiss”, it meant he tried all means to get the Applicant dismissed. He did not regard the dismissal of the Applicant as in line with the laws governing employment relations. Mr. Majozi as an employer was misusing his powers. Discipline was not punitive. The Applicant’s dismissal was pre-planned.
236. Under cross examination, Mr. Zungu testified that bi-lateral meetings were avenues to discuss concerns for an Employer. Seeing the treatment of his leader at regional level, he sent a letter to Mr. Majozi who then suggested that they met to find an amicable solution. The region met with Mr. Majozi and they were not comfortable. The Applicant called him w.r.t the meeting as he was excluded in the process. Majozi engaged him saying he was still a comrade with him at COSATU.
237. The region said they met with Majozi and he apologized but they did not get feedback on the dismissal. Majozi apologized for making statements of plotting against a Shop steward of NEHAWU. They then assumed the matter was resolved.
238. He was not aware of the consultation meeting that took place virtually on 16 March 2022. The consultation meeting was formality to inform as per Schedule 8 of the LRA. It was just a formality but no engagement on reasons for charges. He could not advise the Respondent of the utterances of Mr. Majozi at the consultation meeting as he was not aware of the meeting and got no feedback thereof.
239. When the issue was not solved via a Bi-Lateral meeting, in an engagement with Mr. Majozi, he did not dispute the allegations. Zungu drove to Empangeni and was of the view that he would not pursue the agenda. He was happy that his letter was part of the bundle as it was not disputed.
240. When the Applicant was about to be charged, it would have been improper for the Applicant to raise a grievance on the same issue. Zungu disagreed that he abandoned the Applicant’s matter when he did not follow up.
241. In re-examination, Zungu testified that Mr. Majozi did not engage in good faith at the Bi-lateral meeting considering the period he spoke about the Applicant without him. There was no engagement at the consultation meeting since the union did not object to the charges. The Employer usually informed the union they wanted to engage at the hearing. Since Majozi apologized to the Region and to the NEHAWU KZN PC but carried on and charged the Applicant, it meant that Majozi excluded the Applicant.
242. The Applicant Union Representative, called his 3rd witness, Mr. K. N. Zulu, the Respondent’s CM at Esikhawini Campus since 2007 testified under oath as follows: In February 2021, he was the Acting Deputy Principal, Academic Services. On 07 February 2021, he visited the Eshowe Campus and wrote a Campus Visit Report to College Senior Management. At the time, there were Covid 19 protocols to be observed and he visited the Campus unannounced. The CM was responsible for screening at the campus. The CM was not on campus that day and no one knew his whereabouts, so no one could give reasons why no screening was done. The CM reported to him at the time. No one was left to oversee the campus at the time. The CM was absent without leave as he was not aware where he was and had neglected his duties.
243. In response, he wrote a letter to him to enquire as to his whereabouts and to check why Covid 19 protocol was not observed. He referred the matter to Labour but nothing was done about it. There was no effective teaching and learning at the time of writing the report.
244. On 07 February 2021, he visited some classes and found that only 3 lectures had taken place instead of 15. If the Applicant was the only one charged and dismissed for neglecting duties, it would seem he was targeted and singled out and that was not in line with the Respondent’s policy. Management in his view was relaxed about his recommendations.
245. If the 1st, 2nd and 3rd in charge were missing, then suddenly one person was charged, there must have been an agenda. No books were issued. Students were still being registered in mid-February. Things were all over the place. The charges were not in the interest of teaching and learning.
246. Under cross examination, Zulu testified that he visited other campuses like Enkandla, Mandeni and Chief Albert Luthuli. He did not give the Applicant his report. He presented his report to the entire Senior Management Team and sent it to them as well. He informed Mr. Mthethwa of the refusal to co-operate by the Eshowe CM. Zulu reported his subordinate’s conduct to Mr. Mthethwa and reported his refusal to co-operate. He reported the matter to Mr. Mthethwa within 2 weeks of the incident by writing him an email. He reported the matter Mrs. Du Toit the following Monday after the visit. Not only was the Eshowe Campus reported. He reported the matter to labour and the Principal could take the matter further if she wanted.
247. Zulu further testified that he was head of academic services until November 2021. Considering his report was unsigned, there was no proof he conducted the visit. The Purpose of the report was to assist in teaching and learning, checking Covid 19 protocols and assisting where campuses needed help. There used to be a Monitoring and Evaluation Quality Office which was led by Mrs. Babsy and such visits were common during her time but she retired. It was a well prepared and well detailed report for purposes of work. When he went to the Campus, it was not about Mr. Majozi. The 1st, 2nd and 3rd in charge were not there.
248. In re-examination, Zulu testified that he reported to Mr. Mthethwa that Majozi should have informed him of his whereabouts. There was no leave. His own receptionist did not know where he was. It was a serious neglect of duty. He did not assign anyone. When he asked him to account, he refused and he reported that.
249. The Applicant Union Representative, called his 4th witness, Ms. Nokwanda Zandile Ngema, An Office Administration Student at Eshowe Campus who testified under oath as follows: She was a level 2 student in 2021 and attended Tuesdays and Thursdays during the Covid 19 pandemic times.
250. She was number 19 in the Maths Literacy Level 2 attendance register for 15 to 26 February 2021. Her signature was not in the attendance register as they refused to sign during Covid 19 times.
251. Under cross examination, Ngema testified that she was aware that she had to attend a minimum of 80% of classes so that she could be able to write examinations. The attendance register before her did not prove she attended. They did not sign as they were scared of catching the Covid 19 virus. Her proof that she attended was that she passed and got a pass mark. She got a pass mark by teaching and learning. The Applicant attended his classes. She did not have proof that she attended class as per the attendance register in page 60 of the Applicant’s Main Bundle.
252. She confirmed that signing an attendance register was proof that she attended class. Apart from qualifying to sit for an examination, student attendance was important because one could learn something in class. She signed the attendance register in March and there was still the Covid 19 pandemic but they chose when to sign. She denied she was telling lies. It just happened that they signed on some days and not on some days. She disagreed that she did not sign because when the attendance register was fabricated she was not there. As a 1st year student, she would have been in class when the register was put for her to sign. She denied that she was an unreliable witness and that her testimony was inconsistent. There was no re-examination.
253. The Applicant Union Representative, called his 5th witness, Mr. Muzi Goodman Makhoba, The Respondent’s Mathematics Lecturer since 2005 testified under oath as follows: The Applicant was his colleague and they taught mathematics together as a team since 2007. He was the only Maths Literacy Teacher at the time. They worked with Mr. Mdluli (Pure Maths), Mr. Mbutho and the Applicant. Once the Applicant taught Maths Literacy, the results were good. There was nothing wrong with his teaching.
254. In 2020, they started having problems with students not attending their classes. If one took his register, one would see that. He was surprised about happened to the Applicant. The reason was that he was a NEHAWU member and they had something with Campus Management. He used to oppose things in meetings. Their management did not listen to them. With an opposing union, they had a voice. The Applicant followed up on member questions and management saw him as a threat. Everyone at their College would tell one that. He worked with the Applicant and knew him. The Applicant asked him if he did not understand something. The Applicant would send him to class on his behalf.
255. Ms. Zungu was Makhoba’s Supervisor. When one Lecturer was not present, it was between the Lecturer and a Supervisor. Other Lecturers do not report when not in but they not checked. But the Applicant was prioritized.
256. Considering the Applicant’s attendance register for Maths Literacy Level 3, Makhoba testified that due to Covid 19 pandemic, other students attended and others did not attend. If one said the Applicant faked attendance registers, then all Lecturers did as well.
257. When the Applicant was not at work, he would take his responsibility by giving his students activities and the registers to mark. The Applicant did the same for him as well.
258. Under cross examination, Makhoba testified that since the Applicant was a NEHAWU General Secretary and Management was SADTU (CM SADTU Chairperson), when the Applicant opposed something, it would be seen as a threat as all management was SADTU. Makhoba knew all management was SADTU as he used to lead staff and management as SADTU. He worked with others in other management. Makhoba testified that only White Men who were NAPTOSA were in Management, the rest were SADTU. Makhoba denied that it was just his perception, He worked with them and knew their pay slips with SADTU fees.
259. In NEAWU, Makhoba was an additional member at the Committee of NEHAWU at Branch level overlooking what was happening. He was an advisor as well. He had a comrade and a colleague relationship with the Applicant. It was not his view but a fact and truth that the Applicant was victimized since he represented NEHAWU. He was at the hearing to tell what he knew about the Applicant. He was at meetings where words were said by Management justifying his assertion that the Applicant was victimized.
260. When the Applicant was absent, he would speak to his Supervisor and then talk to him for their own arrangement. Makhoba testified that to get students to sign registers in 2020 and 2021, some Lecturers would even put registers at residence venues. In September 2021, when students wrote their trial exams, they signed registers. Thus, no one was perfect.
261. Other programs did not allow students to sign but they signed in examination venues. It was 100% correct that come students did not sign. The CM would tell Lecturers not to go to the main hall for students to sign. In a meeting, the CM told them there were Lectures who made students sign. He denied he was speculating. If a person was no available, he would assist by taking his attendance register for students to sign because they worked together. He got the register from the same office they used.
262. If another Lecturer was not present, the Supervisor would come to him, in 2009, they worked with Mr. Mtshali who taught students if he was not available. They would call another Lecturer to teach.
263. When a Lecturer was absent, he had a right to ask a fellow Lecturer to stand in for him. If they both did the same subject and same topic, he could assist and give tasks. Sometimes they had Supervisors who did not know Maths and could not teach it. When he met the Applicant, they worked as colleagues and built their relationship. It came to a point of a sibling.
264. He was not the author of the Applicant’s attendance register in page 56 of the Applicant’s Main Bundle, he just took whatever he was given and gave it to students to sign. Anything else was not about him.
265. About the 80% attendance policy, Makhoba testified that some Lecturers get students to sign posthumously to fake attendance registers. When the College failed to give them registers on time or late in March, they just sign for January and February as they were asked to give to students to sign. Sometimes they got registers on 30 February and got students to sign January and February. When students did not achieve 80% attendance, they were not accepted to write final examination. The proof was the student attendance registers. If students do not sign the attendance, they gave them reasons. Students got registers late. Why should they suffer on account of the College. They opened on 07 January 2024, on 18 January 2024 there was still registration of students. They started backwards and captured from opening.
266. In re-examination, Makhoba testified that they had no control on the evidence that some students sign and other do not. In his life or since he started at the College, there had never been an issue that students did not get 80% attendance. This was because they made arrangements within the College.
267. The Applicant Union Representative, Mr. Sthabiso Makhoba did not submit any closing arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT
268. According to item 7 of Schedule 8, The Code of Good Practice-Dismissal, any person who is determining whether a dismissal for misconduct is unfair should consider:
(i) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the work-place and
(ii) If a rule or standard was contravened, whether or not:
(iii) The rule was valid or reasonable rule or standard
(iv) The employee was aware or could have reasonably be expected to have been aware of the rule or standard;
(v) The rule or standard has been consistently applied by the employer and
(vi) Dismissal was an appropriate sanction for the contravention of the rule or standard.
269. The issue to be determined is whether the dismissal of the Applicant was substantively and procedurally fair or not. The Applicant was charged with 5 counts as shown in the notice to attend a disciplinary hearing dated 06 June 2022 found in page 1 of the Respondent’s Main Bundle.
270. The ELRC Further Education and Training Colleges Bargaining Unit Collective Agreement NO 1 of 2013 the Annexure C acts of misconduct. The document is a generic contract of employment for post level lecturers appointed in the public further education and training colleges. The agreement applies to all lecturers as defined in terms of the Further Education and Training Colleges Act 16 of 2006, whether such employees are members of a trade union part of the agreement or not. The Applicant in this matter is bound by the above mentioned collective agreement.
271. I am satisfied that the rules were reasonable requirements for an institution of learning and even any workplace professional or not. Clause 17.1 of the Applicant’s contract of employment states that the employee will be subject to the disciplinary procedures and rules of the College as determined from time to time. Since the Applicant was a lecturer at the Respondent and based on common law as well, I am satisfied that he was aware of the rules regulating his conduct.
272. Since there are conflicting versions by the parties, I am guided by the judgment of the Supreme Court of Appeal in Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others [2003] (1) SA 11 (SCA) (handed down on 6 September 2002) where the Court held that where a Commissioner is faced with two conflicting versions before him, the Commissioner must make a finding on the credibility of the witnesses and on the probabilities of the two versions to determine where the truth lies. The question to be asked is whether the probabilities favor the party that bears the onus of proof. The court further held that the credibility of a witness is an extricable manner bound to the consideration of the probabilities of the case. The Arbitrator should therefore resort to credibility where probabilities fail to point which version embraces the truth more.
273. To determine whether or not the employee contravened a rule or standard regulating conduct, I analyzed the testimony of the witnesses and the documents presented based on the civil standard of proof of a balance of probabilities. Generally, in these proceedings I found that the witnesses of both the Respondent and the Applicant displayed loyalty to the side they were on even in the face of obvious evidence in favor of the other side. I then made findings on the credibility of each witness considering their latent and blatant bias, internal contradiction of their evidence, external contradictions with what was pleaded or put on their behalf, the probability or improbability of particular aspects of their versions and the caliber and cogency of their performances compared to that of other witnesses testifying about the same incident or events. I also considered whether the witnesses were present when the event they testified on occurred and the quality and independence of their recollection of the event in question so to establish the reliability of the witness. I also analyzed and evaluated the probability of each conflicting version on the disputed issues.
274. My impression on the veracity of the different witnesses varied. With regards to the disciplinary hearing presiding officer, Mr. Mdlalose, I found the following: When evidence that favored the Applicant was put before him, he was not evasive but he stated that he would have ruled differently had it been presented to him. He only received evidence from the Respondent only and made his determination from that alone. He did not contradict himself and what he said was corroborated by other witnesses and documentation in the bundle. All in all, his testimony was probable.
275. Mr. Makhoba also came across as a credible witness as he even gave information that made him and the Applicant vulnerable with regards to the charges against the Applicant and actuals practiced at the school. To me, it showed that he was interested in getting to the truth more than defending the Applicant. He sowed blatant bias towards the Applicant. But he testified on what he knew first hand and his testimony was probable.
276. Ms. Xulu also appeared to be a credible witness as she related her role as a scribe at the SRC and Student Representative Meeting. She did not yield to testifying further about the events discussed when prompted. She even stated that she was more of an observer at the meeting. She did not show any bias towards any party. She only spoke about what is in her personal knowledge and no one disputed her testimony. Her testimony was backed up by documentary evidence and I found her to be a reliable witness and version was probable.
277. Mr. K. N. Zulu also exhibited qualities of a credible witness as he testified about the contents of his visit to the Eshowe Campus in February 2021 and the status he found the institution in and what he did about it. There was latent bias on the choice of his words as it seemed he was aggrieved about the College Senior Management and Labour Department not acting on his report against Mr. Majozi. He did not contradict himself, spoke from firsthand information and exhibited a high quality of recollection of the events he testified about. He was a reliable witness and his version was probable.
278. I did not find Mr. Majozi to be a credible and reliable witness for the following reasons. He treated the College’s HR department as if was not part of the Respondent when cornered with HR information that conflicted with his version. He claimed that the Applicant was not attending classes for the whole of term 1 and term 2 of 2021 based on blank student attendance registers but as the Applicant’s Manager, he did not stop his remuneration for the same period. He testified that he did not approve the Applicant’s leave for 03 to 05 February 2021 but did not indicate that on the leave form which has space to indicate leave is not approved and append his signature. He could not remember dates that he went into class and found the Applicant absent whilst he was signed in as present. He denied making utterances in public and in the presence of Mr. Siyanda Zungu regarding the dismissal of the Applicant at the Mtshali function on 25 September 2021 but Mr. Siyanda Zungu testified that he apologized for uttering such words when they met in Empangeni to resolve the issue. There were many documents (Staff attendance registers, leave form) where the Applicant’s immediate Supervisor approved but he still charged him without commenting on the meaning of the approval of the documents. He is a SADTU KZN Chairperson and former Manager of Applicant. The Applicant was a NEHAWU Branch Secretary and Shop steward at Eshowe Campus who was said to have recruited SADTU members to NEHAWU. For this reason alone and to avoid the appearance of bias, a reasonable person would opt to delegate the investigation of the allegations and charging of the Applicant to another capable and neutral person due to tensions between the SADTU and NEHAWU Unions. Most of his testimony was not first hand, contradicted itself and had external contradictions with what was pleaded. Based on the above, I find the testimony of Mr. Majozi to be mostly improbable on the issues covered so far. More of his versions will be analyzed where applicable per count.
279. The Applicant claimed to have been confused when asked questions relating to grievance procedures which was what he did as part of his normal duties as a NEHAWU Shop steward. To me, this was to avoid the real answers around why he never followed procedures well known to him even when he was furnished with forms to fill to exercise his rights. In some occasions, he was scared to face Mr. Majozi as he had threatened to kill him and in some occasion, they had a meeting about the November 2020 staff attendance register with different signatures. A significant number of his testimony is disputed by Ms. Zungu, Mr. Majozi and Ms. Mhlongo. Some of his testimony is not backed up by documentary evidence but some is. The Applicant is exhibiting a mixture of a reliable and an unreliable witness and a mixture of probable and improbable versions. This could be caused by desperation to succeed in the case. I will rely more on the probability of versions he put forward first and then consider my finding that he is not a credible witness.
280. I found Ms. Mhlongo not to be a credible and a reliable witness as she testified that no handwritten student names were allowed in the attendance registers. She also testified that and no unsigned registers were accepted and yet she agreed that Mr. Majozi submitted blank unsigned attendance registers for the Applicant which she considered the Respondent’s official documents. She also printed control registers with updated names of students (Mpanza L) which were previously handwritten in the attendance registers shown in the Respondent’s bundle. To me, she contradicted herself and her testimony was disputed by the Applicant and Makhoba who relied on documentary evidence in the Respondent’s bundle to put their version. She indicated bias towards the Respondent in her testimony. Her testimony was on what was right to say instead of what actually happened or practiced at the College. I find her version to be improbable on the issues mentioned above.
281. I found Ms. Zungu not to be a non-credible witness and her testimony to be non-reliable for the following reasons: She signed the Applicant’s November 2020 staff attendance register twice. Once with two different signatures who were the Applicant’s initials and again with the Applicant’s official signature. This to me shows that for her to sign his attendance register for the second time, there had to have been some engagement between him and the Applicant to resolve the issue identified at HR and raised by Majozi. Yet, she supported the version that the Applicant still had to send a report to Majozi for a resolved issue. For me, her version is less probable than that of the Applicant. The arrangement between the Applicant and Mr. Makhoba suited Ms. Zungu in terms of her section’s deliverables and she turned a blind eye to it even though it was against procedures. At the hearing, she testified on procedures to be followed when a Lecturer was absent and for submission of class attendance registers but she did not refer to even one Respondent procedure that she relied on. She testified that the Applicant did not care about the students’ wellbeing but only for Union activities and yet as his immediate Supervisor, she did not say what she did about it to facilitate passionate teaching and learning for the Applicant who has lost his way and to protect the students in the meantime whilst addressing the Applicant’s issue decisively. She was blatantly biased towards the Respondent. She testified that the teaching of part time students was not overtime. Yet she did not dispute that Lecturers who took on part time students were paid extra for it. To me, she was not a credible witness but tried to please her Manager and to cover her own faults in dealing with the challenges presented by the Applicant. Most of her versions are improbable and I will cover those applicable in dealing with each count.
282. Ms. Ngema did not prove to be a credible and a reliable witness as she could not justify why she signed in March when she did not sign in February even though the Covid 19 pandemic had not yet subsided. All in all, her testimony did not make sense. She did not sign as she was scared of catching the Covid 19 virus but whilst the virus was still prevalent the next month, she signed. It seems that her testimony that she signed more about loyalty to the Applicant’s side than anything else. Thus, I find her version is improbable.
283. Mr. B. S Mthethwa’s appeared to be a credible and a reliable witness as his testimony about the grievance process, disciplinary hearing process and appeal process was backed by applicable procedures, collective agreements and shared documentation. His version as it related to the procedural fairness of the dismissal was probable.
284. Mr. Siyanda Zungu’s also came across as a credible and a reliable witness when he shared what transpired in his presence on 25 September 2021at the Mtshali function and what he did about it. His testimony was backed up by his letter to Mr. Majozi dated 01 October 2021. Zungu’s testimony is supported by a letter requesting the Applicant to respond to allegations structured as charges dated 02 September 2021 from Majozi. Thereafter, a letter to the Applicant from Majozi on 15 October 2021, an SRC and Class Representatives Meeting on 18 October 2021, a letter from Ms. Zungu about Applicant’s conduct on 19 October 2021 and an email to Majozi from Mr. Van Schalkwyk dated 19 October 2021. The sequence of events prior to the alleged utterances of plotting to expel the Applicant at work by any means possible and a lobby for public support in the execution of the plot was in line with what Mr. Majozi did and required others to do afterwards. I find Mr. Zungu’s version probable.
285. Mr. Gerhard Van Schalkwyk appeared to be a credible and a reliable witness as he testified on the contents of his email to Mr. Majozi on 19 October 2021, about students who came to him to complain about the Applicant and gave him a letter requesting feedback thereof. His testimony was consistent with what he wrote in the email and what Ms. Zungu testified about his involvement in the issue. Thus, his version was probable.
286. The witnesses’ versions will be analyzed to check the most probable based on each of the Applicant’s charges.
287. Regarding Count 2, Employer did not provide their leave application procedure but stated what needed to be done when someone went on sick leave. The Applicant stated the procedure he followed and stated why he followed it. The Respondent did not call any health practitioner to challenge the authenticity of the medical certificates for 17 and 18 May 2021 provided by the Applicant. The Applicant also provided an affidavit dated 05 April 2023 where he confirmed the information in his doctor’s medical certificate after he was charged. For the 14th of May 2021, the Applicant showed his attendance register fully signed which was the property of the Respondent. The Respondent did not provide evidence that the Applicant left his students unattended without his Supervisor’s permission on the 14th of May 2021 except for minutes of a meeting where students complained about such behavior but still no date was given. Mr. Majozi testified that the misconduct allegations against Mr. Mathebula were brought to his attention through the SRC – where he referred to minutes of a meeting he held with the SRC and class representatives, this version was also corroborated by testimonies from the meeting secretary (Ms. Xulu) who confirmed the content of the minutes as drafted by herself from her manual records. Ms. Zungu who confirmed having received an email from Mr. Schalkwyk including the student petition and corroborated viva voce from Mr. Van Schalkwyk who testified about his own email he wrote to Mr. Majozi and Ms. Zungu, and Mr. Van Schalkwyk further confirmed the content of the minutes. Majozi further testified that apart from student reports he also witnessed the Applicant’s conduct during his daily class monitoring which he conducted, he quoted an incident where Mr. Mathebula was not in class but he had signed an attendance register as present on the day, whilst on the same day Mr. Mathebula had been on compassionate leave. It is not clear if the dates referred to by the Students were the same as the ones specified on the charge or other days which are not specified. Mr. Majozi did not specify the day he witnessed the Applicant signed in whilst on compassionate leave. The students also did not specify which specific dates the Applicant signed as present but did not teach them. Thus, it would have been difficult for the Applicant to defend the charge with unknown dates as he would not know where to start in gathering evidence to prove whether he was there or not. The Respondent ought to have specified days that the student complaints were referring to. Moreover, Mr. Majozi also had to specify days he was referring to in his testimony for the Applicant to respond specifically. The complaint by the students did not specify the dates of 14, 17 and 17 May 2021 as per the charge which the Applicant responded to. Names of students registered for the Applicant’s subjects and dates where the Applicant signed the staff attendance register as present whilst the same students and dates are highlighted as the ones the Applicant absent and did not teach would have been clear enough for the Applicant to respond to. Testimony from a student or two who were present in class when the Applicant was absent whilst he signed as present would have allowed the Applicant to test their testimony and also put his version but this was not done. Thus, based on the evidence put before me, I find on a balance of probabilities that the Applicant is not guilty of count 2 on specified dates of 14, 17 and 18 May 2021 and other unknown dates which were impossible to respond to.
288. The Applicant testified that Count 2 was proof that the CM was trying get him dismissed as uttered at KwaMbongolwane since he was charged whilst the Respondent had all the relevant documentation for 14, 17 and 18 May 2021.
289. Regarding count 3, the Applicant testified that on 03 to 05 February 2021, he reported to the Respondent that he had to go bury his father and showed evidence of the death certificate, a leave form signed by his Supervisor and captured by HR. He also showed that the Respondent captured the days in question as family responsibility leave. He also showed his staff attendance register for February 2021 indicating that he did not sign in as present on 03 to 05 February 2021. The Applicant also testified that due to having Covid 19 symptoms, he consulted his Doctor and on being charged, he decided to provide the medical notes. Mr. Majozi testified that he did not approve the sick leave. However, Mr. Majozi did not state whether the leave was approved or not when the form had space for him that the leave was not approved but he did not fill his part. The Applicant’s immediate Supervisor approved the sick leave and HR captured it as approved on the system. The Respondent also had an issue that the form was submitted on 02 March 2021 when the Applicant returned to work on 08 February 2021. This delay in submitting the leave form, as bad as it is, does not change the status of the leave at the Institution. The Respondent is a juristic person and should have systems to give the Applicant one response on an issue. The Applicant’s leave cannot be approved by her immediate Supervisor, captured as such at HR, paid for by Finance and not be approved at the same time according to the Campus Manager in one Institution.
290. For the 23 to 26 February 2024 absence, the Respondent’s authorized the Applicant’s attendance register for 23 to 26 February 2021 indicated that the Applicant was on sick leave. The Applicant provided a doctor’s medical certificate covering the period of 23 to 26 February 2021 and the Respondent did not lead any evidence challenging the authenticity of the doctor’s medical certificate provided. The Applicant was paid for the days in question. The same argument about the Respondent being one juristic applies as in the previous paragraph.
291. Mr. Majozi testified that the Applicant’s conduct was also formally brought to his attention by Ms. Zungu, who had been faced with a dilemma for the non-submission of student attendance registers by Mr. Mathebula, his testimony was corroborated by Ms. Mhlongo who is the custodian of student attendance registers, wherein it was mentioned that student attendance registers belonging to the Applicant for the period in question were recorded as blank registers. This, according to Mr. Majozi, corroborated by Ms. Zungu, proved that there is no evidence that the Applicant dully fulfilled his contractual obligation to deliver teaching and learning. The testimony of the Respondent witnesses about the blank attendance registers for term 1 and term 2 of 2021 is not supported by the Respondent’s other documents like control registers for the Applicant showing student task marks and examination marks. It is inconceivable that the Respondent would remunerate a Lecturer throughout the year of 2021 when the Respondent missed two terms of teaching and learning. The Respondent did not produce evidence to show the consequences (NSFAS payments, Examinations, Formal Warning Stages) on the Applicant’s and Student’s non adherence to their Academic Attendance and Punctuality Policy. Mr. Makhoba testified that the Respondent asked Lecturers to back date attendance registers from the College opening day when they were only given registers much later in the year to ensure files complied. To me, the Respondent cannot have it both ways, if their official position was that the Applicant was not at work for the period covered by the blank attendance registers, then all other systems including remuneration records must reflect such as the Respondent is one juristic person. The same Respondent could not remunerate the Applicant for services rendered and at the same time dismiss him for not rendering services a year later when his attendance registers were approved by the same Respondent. To me, the Respondent’s behavior is bizarre and seems to justify the Applicant’s version that he was targeted for his union activities. Based on the evidence before me, it is my finding that the Applicant is not guilty of count 3 as the Respondent could not discharge proof that the Respondent did not authorize the Applicant’s absence nor were they not aware of his absence. Both parties did not lead any evidence with regards to the 12th of February 2021. The Respondent had the burden of proof to do such but did not.
292. The part of Count 3 about the alleged breach by the Applicant of his contractual duty to avail his services to the employer and/or to report his absence to his immediate Supervisor has no dates specified and so it was assumed that it was either referring to the dates specified in the 1st part of the charge or to dates implied by the blank attendance register in pages 1A/B to 5A/5B of the Respondent’s Addendum Bundle
293. Regarding count 4, the Applicant testified that he signed the different signatures in front of his Supervisor and she signed as well from 2 to 13 November 2020. During a meeting with the CM and his Supervisor on the issue of the different signatures, the CM requested a report stating that he was changing his signature but his Supervisor later told him to just go back to the old signature. He further testified that he was given another form to sign correctly like before and his Supervisor signed as well. Mr. Majozi testified that he was never informed of the alleged arrangement between the Applicant and Ms. Zungu pertaining to the requested report to explain different signatures and still held a strong conviction that the signatures were defrauded. The Applicant’s Supervisor testified that other Lecturers used to sign like the Applicant or for each other to disappear. They were told to stop signing with initials and to sign correctly with their full signatures. However, the Applicant was the only one that continued. This testimony indicates that she used to tolerate the way the Applicant signed before and it was not considered fraudulent before. The evidence before me is that the Applicant stopped and started correctly as instructed as I do not know when the others stopped compared to the Applicant. Moreover, the Supervisor also signed his November 2020 attendance register again after he reverted back to his old signature. Clearly, there was some intervention with the Respondent that led to the Applicant changing his signature to the old one. The Respondent failed to prove that the Applicant intended to commit fraud by signing the way he did before reverting to his old signature. The documentary evidence before me supports the Applicant’s version. Thus, it is my finding that the Applicant is not guilty of count 4 and thus did not commit fraudulent timekeeping.
294. Regarding count 1, the Applicant testified that at after a meeting he had with the CM and Ms. Zungu. His Supervisor (Ms. Zungu) and he had an agreement for him to revert back to his old signature and he thought the issue was covered as his Supervisor was involved. He thought the matter was finalized. He further testified that where he worked, he did not have an office with internet. He sometimes checked emails on Fridays. When he saw the email from the CM, he had already dealt with the issue with his Supervisor. The report was part of the options. He took the option of correcting the signature. This version is probable under the circumstances. Ms. Zungu on the other hand disputed that she had an agreement with the Applicant to revert back to his old signature. She further testified that the Applicant had to submit a report to the CM but failed to do so. The CM’s testimony also corroborated Ms. Zungu’s testimony. This version is also probable. Mr. Majozi testified that he had sent Mr. Mathebula a number of letters inviting representations against the allegations (one of them related to the November 2020 attendance register), and the Applicant ignored his letters. It was on this premise that the formal disciplinary proceedings were instituted. He added that had the Applicant responded to his letters, he would have perhaps had a different understanding and maybe took another redress measure. Based on the testimony, I am convinced that the instruction was indeed issued to the Applicant as alleged. However, based on Ms. Zungu’s explanation of why the different signing had to be stopped and the fact that the Applicant discontinued the practice and started signing correctly after the intervention by the CM and a talk with his Supervisor who signed the corrected register, I do not see the reasonableness of the instruction to write a report under the circumstances. The CM testified that someone from HR wanted a report but that person did not testify nor was there any evidence produced to show that there was a report from someone else other than the CM who wanted the report. I am not sure what the CM hoped to establish that the Supervisor and he did not already know about the signing of different signatures by the Lecturers. This was not something new. The Applicant only had to commit to correcting his signature or officially inform the Respondent if he wished to change his signature going forward. The Applicant could have responded to the CM’s request to inform him that according to him the matter was finalized as he opted to revert back to his old signature as suggested by Zungu to avoid having to send a report. This could have been based on the tensions between the Applicant and the CM due to their union contestations at the campus. Based on the evidence me, it is my finding that the Applicant did not carry out the CM’s instruction but it was not reasonable under the circumstances. I fail to understand what new information the report would convey. Had the Applicant and the Supervisor not signed the corrected register, there would have been a need for a report to clarify if the Applicant was changing his signature and why or if he was reverting to his old signature. Thereafter, the implementation of what is in the report would be done in the second attendance register.
295. Regarding count 5, Both the Campus Manager and Ms. Zungu testified that the Applicant refused to teach part-time classes for Mathematics Literacy and he instructed the students to go to Ms. Zungu for the lessons he refused to teach. The Respondent corroborated this evidence with documentary evidence of whatsapp messages between the Applicant and Ms. Zungu, wherein the Applicant was still instructed to teach but he refused. Mr. Majozi’s testified that it was a known practice in the campus that previous students who failed would be taught by the same previous lecturer and this was compensated separately from the lecturer’s salary and was per student script marked. Ms. Zungu testified that students came to her office after being informed by the Applicant to come to her. She further testified that the teaching of part-time students was something they all did as Lecturers. The Applicant previously conducted part- time classes. The Applicant on the other hand, testified that teaching part time students was not part of his contract and it was overtime work which was a gentlemen’s agreement. He further testified that Lecturers were paid overtime for taking on par-time students. The Respondent did not dispute that the allocation of part-time students was overtime work and that Lecturers who took on the extra task were paid extra for it. In the absence of a Respondent’s overtime agreement document produced to support the Respondent’s allegation of insubordination for the Applicant refusing to take part time students, I am guided by section 10 (1) (a) of the Basic Conditions of Employment Act 75 of 1997 as amended which state that an employer may not require or permit an employee to work overtime except in accordance with an agreement. Thus, before the Respondent can charge employees of insubordination for not carrying an instruction to work overtime, there must first be an agreement between the parties. Only then can one then consider if the request for overtime was reasonable or not. Thus, it is my finding that the Applicant was within his right to refuse an instruction to work overtime in the absence of an agreement with the Respondent thereof and let alone that he could not be compensated for it at the Eshowe Campus when other Lecturers were compensated in other Campus.
296. Based on the evidence before me with regards to the count 1, count 2, count 3, count 4 and count 5 against the Applicant by the Respondent, it is my finding that the Respondent failed to discharge sufficient proof for a substantively fair dismissal of the Applicant. The motive for the charges seems to have been based on the tensions between SADTU and NEAWU Unions at the Respondent’s workplace. Evidence was led by Mr. Zulu of the state of the Eshowe Campus in February 2021 and Zulu testified that the Applicant was targeted when charged for misconducts in a workplace as described in his report. Mr. Makhoba also testified on the actuals done at the Eshowe Campus to look good in their books. To me, the Respondent needs to focus on implementing a Quality Management System at a Campus level and workshop all staff to ensure a reset that will benefit students the most. The Respondent is also advised to go over the Applicant’s duty load considering his Shop steward duties as is done for other union Shop stewards within the same workplace so that he can be able to contribute meaningfully to the College whilst executing his union duties.
297. Procedurally, the Respondent successfully discharged adequate proof for a fair dismissal because the Presiding Officer granted postponements properly put before him and correctly proceeded with a hearing on 29 June 2023 in the absence of a postponement application before him. The Union was consulted before the hearing was conducted as per Section 4 (2) of Schedule 8 of the Labour Relations Act 66 of 1995. Subsection 1 of the same act states that the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal inquiry. Mthethwa testified that the evidence before the Respondent was overwhelming and there was no need to commit resources of time and money when all that was needed to proceed with the case was there. The Respondent had complied with the procedural requirements in terms of the PSCBC Resolution 1 of 2003, which is a binding collective agreement within the Public Service at large.
298. Dismissal is a very serious matter, particularly given the lack of prospects of alternative employment in the present South African economic climate. It is trite that the primary statutory remedy for a finding of substantive unfairness in dismissal is reinstatement. The landmark Constitutional Court decision of Equity Aviation Services (Pty) Ltd v CCMA & others (2009) (1) SA 390 (CC) at para 33 is instructive in this regard. This was confirmed in Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile (2010) 31 ILJ 273 (CC) at para 26. The Constitutional Court very recently said in Booi v Amathole District Municipality and Others [2021] ZACC 36 at (para 62) as follows:
“There are good reasons that reinstatement is lauded as the primary and commonplace remedy that accompanies findings of substantively unfair dismissals. It would be wholly unpalatable to our Constitution’s commitment to the right to fair labor practices if employers were permitted to unfairly dismiss their employees, exonerated of allegations of misconduct, via the backdoor of disingenuous and last minute allegations pertaining to an intolerability of a continued employment relationship. It is incumbent on employers to follow proper procedures and respect the labor rights of their employees...”
299. It is so that section 193(2) of the LRA requires an arbitrator to consider the intolerability of the working relationship prior to making an order of reinstatement. The bar of intolerability is a high one. It was held in Booi (supra) at paras 40 and 41 that: “The term “intolerable” implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal. And, my approach to section 193(2)(b) is fortified by the jurisprudence of the Labour Appeal Court and the Labour Court, both of which have taken the view that the conclusion of intolerability should not easily be reached, and that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability. Thus, “intolerability” in the working relationship should not be confused with mere “incompatibility” between the parties. “Incompatibility” might trigger a different kind of enquiry with different remedies. For instance, an incapacity enquiry may be held to establish whether the incompatibility goes as far as rendering the employee incapable of fulfilling their duties. This is entirely distinct from “intolerable” relations.” On a conspectus of the evidence the employer failed to meet the high bar of intolerability. The totality of the evidence seems to point to intolerability towards a person’s right of association in terms of union activity.
300. In remedying the situation, for the substantively unfair dismissal of the Applicant whilst he had a 12 year service record, was unemployed and was about 43 year of age during the hearing in the current employment climate of the country, reinstatement would be just and equitable in the circumstances.
301. Calculation of back pay.
302. The Applicant was dismissed on 10 January 2023. Reinstatement would place him back at work from 11 January 2023 going forward. The Award will be received by the parties around the 2nd week of March 2024 which would give them about a week to prepare for the Applicant to report for duty on 18 March 2024. It is possible that the Applicant would not have been dismissed had he attended the disciplinary hearing. At the same time, the Respondent proceeded with the hearing after the union had sent their schedule which sought to convince the Respondent that the Applicant would not be represented as the Union had engagements during and around the time of the hearing. The Applicant could have attended the hearing to request another postponement and put his predicament to the Chairperson. This was not done. Thus, the Applicant’s hands are not clean and awarding full back pay would not be just and equitable. Thus, I will remove four months from the back pay so an not to reward the Applicant’s act.
303. Thus, back pay would be:
Monthly Pay= R28 957.37
From 11 January 2023 to 31 January 2023, 3 Weekly Pay = R28 957.37 /4.33 x 3= R6 687.61 x 3 = R20 062.84
Calculation of Pay from 01 February 2023 to 29 February 2024 translates to 13 months minus 4 months which equals 9 months: 9 Months Pay = R28 957.37 x 9 = R260 616.33, Total Back Pay = R20 062.84 + R260 616.33 = R280 679.17
304. The Applicant is also entitled to any increase that he would have received had he remained employed from 11 January 2023 forward. Such increase is to be calculated and included with his back pay already calculated above.
AWARD
305. I hereby find that the dismissal of the Applicant, NEHAWU obo Mathebula S. W. by the Respondent, Department of Higher Education and Training, was procedurally fair and substantively unfair.
306. The Respondent, the Department of Higher Education and Training is ordered to retrospectively reinstate the Applicant, Sihle Mathebula as from date of dismissal. The Applicant must tender his service by no later than 18 March 2024.
307. Accordingly, the Respondent is to pay the Applicant, Sihle Mathebula an amount of R280 679.17 as calculated in paragraph 303 of this award within twenty-one (21) days after having been advised of this award plus any increase he would have received had he remained employed.
L Mkhize
Arbitrator 16 February 2024
ELRC815-22/23 KZN