ELRC531-23/24FS

Panellist: Khuduga Tlale
Case Reference No.: ELRC531-23/24FS
Date of award: 04 July 2024

In the matter between:

SADTU obo Mohapi Gilbert Sethuoa Applicant

And

Department of Higher Education & Training Respondent

ARBITRATION AWARD

Details of hearing and Representation

1. The arbitration hearing between SADTU obo MG Sethuoa (“the Applicant”), and Department of Higher Education & Training (“the Respondent”) was held on 25 April 2024, and concluded on 21 June 2024 at the Respondent’s Offices in Bethlehem. The Applicant appeared in person, and Mr. M Frans, union official, represented him. Mr. MPE Ngcosane, the -Labour Relations Officer represented the Respondent.


2. These proceedings were conducted in English, and were manually, and digitally recorded. The parties agreed to submit the heads of argument in writing on Friday, 28 June 2024. They both submitted.

Issues to be decided

3. The issue to be decided is whether or not the Applicant’s dismissal was both procedurally and substantive fair.

Background to the dispute

4. The Applicant was employed by the Respondent on 01 September 2006 as a Lecturer (PL1). He was promoted to the position of a Senior Lecturer (PL2) on 01 April 2011. The Applicant’s workplace was at Itemoheleng Campus. The Applicant forms part of the campus management team. The Applicant was charged with three (3) counts of misconduct relating to incitement, leaving the workplace without permission, and an act of dishonesty.

5. The Applicant was informed about the allegations against him. He was served with the notice of the disciplinary enquiry (“the enquiry”). The last proceeding of the enquiry was on 09 June 2021, and the Applicant did not attend. The enquiry proceeded in his absence. He was found guilty on all the charges. The parties were requested to submit the mitigating and aggravating factors on 19 February 2023. The presiding officer of the enquiry pronounced his sanction on 04 March 2023. The Applicant lodged an appeal on 15 March 2023. The appeal authority confirmed the dismissal on 20 October 2023.

6. The Applicant’s service was terminated on 30 October 2023. At the time of his dismissal, he earned R37 997, 63, per month. The Applicant referred this alleged unfair dismissal dispute to the Education Labour Relations Council (“Council”). The certificate of non-resolution was issued, and the dispute was referred for an arbitration. The parties submitted bundle of documents which were marked as bundle “A”, “B”, “C”, “D”, “E”, “F”, “G”, and “R”. Both parties conducted a pre-arbitration meeting, and they both signed the minutes.

Survey of Evidence

Respondent

First Witness: Mr. Thulani Dube

7. The witness testified under oath that the Respondent appointed him as the presiding officer of the enquiry as per “R5”. He was the former CCMA, and Bargaining Councils Commissioner. The enquiry started in the year 2019, and there were many delays from both parties. He also had a car problem. The mother of the Respondent representative passed away, and the Applicant changed the union. The break of COVID-19 also caused the delay to finalize the enquiry. He delayed to issue the outcome of the enquiry because he lost the records due to break-in, in his house. He had to reconstruct the records, and relied on his written notes.

8. He further stated that so many things happened that caused the delay. The last setting of the enquiry was scheduled for three (3) days on 09, 10, and 11 June 2021. The Applicant’s representative confirmed the dates of the 09, and 10 June 2021, but they failed to attend the enquiry. Document “R12” was the email from the Applicant representative informing the Respondent representative that the Applicant was booked-off sick, and he requested a postponement. The Applicant’s representative should have made a formal application for postponement because the Respondent’s representative did not agree with his request.

9. According to document “R15”, the Applicant was booked-off sick from 07 to 11 June 2021. There was no an application for postponement before him. Presentation of the medical certificate was not an application for postponement. The enquiry proceeded on 09 June 2021 in the absence of the Applicant. He considered both parties’ mitigating and aggravating factors. The Applicant was given a fair hearing, and it was fair to proceed with the enquiry in his absence.

10. Under cross-examination, he stated that he was not familiar with Collective Agreement 01 of 2013, Annexure B of the disciplinary code and procedure for employees hereafter referred to as lecturers (“the code”). The charges against the Applicant were amended in terms of the code. He confirmed that the Applicant was charged in terms of the code. He had no knowledge that the sanction was supposed to be issued within five (5) days after the enquiry. He issued the final outcome, or finding after five (5) days after the enquiry. He provided the reasons for the delay in his report. It was an oversight on him for not communicating the outcome of the enquiry within the stipulated time-frame. The Respondent also was not informed about the delay.

11. He confirmed that the Applicant’s representative carbon copied him when he requested postponement from the Respondent representative. The carbon copied was not an application for postponement, and he did not respond to the email. He maintained that the Applicant ‘s representative indicated that he would be available on 09, and 10 June 2021. He confirmed that he received the Applicant’s closing argument, and mitigating factors as per “A39”. He confirmed that he did not issue the outcome of the enquiry on 28 October 2021.

12. Under re-examination, he stated that he had no knowledge how the Respondent obtained the Applicant’s medical certificate.

13. Under clarity questions, he stated that the enquiry was concluded on 09 June 2021. The finding was issued to the parties on 05 February 2023. The parties were requested to submit aggravating, and mitigating factors on or before 19 February 2023. The sanction was issued on 03 March 2023. The reason for the delay to issue the verdict was because he lost the records, and it was difficult to reconstruct the records. He did not communicate with the parties about the lost records.

14. He had a break-in in his house towards the end of the year 2021. He later stated that he could not remember when the break-in happened. This matter was complex, and he could not remember everything. He stated that the delay was excessive, but he gave the explanation for the delay. He did not know the reasons why the Applicant was still employed after two (2) years, and he would be speculating if he could have concluded that the Applicant’s conduct changed.

Second Witness: Mr. Dan Lehlakola

15. The witness testified under oath that the Respondent employed him as a Campus Manager at Itemoheleng on 01 November 2016. The Applicant was the senior lecturer, and he forms part of the campus management. They were administering the examinations for latent students on 11 April 2018. The NCV students opened on 11 April 2018. The latent lecturers were supposed to invigilate the examinations, but they were outside the campus premises. She asked Ms. Ramotsie what was happening. She replied by saying few students came to the staff room, bang the door, and everybody rushed outside the premises. The students were on strike, and they were joined by community members.

16. The examinations continued in that conditions. The student wanted the College Principal, Mr. Mabona to leave the institution. There were lecturers who had meeting outside the campus. The central office, and his office were torched during the strike. He bumped into the Applicant, he explained to him their situation in relations to the examinations, and he requested him to assist with the invigilation. The Applicant promised to assist with the invigilation, but he failed to do so.

17. The Applicant as a campus management team, was supposed to assist, and he was trained as an invigilator. The lecturers, including the Applicant, went outside to support the course of the students. There was nothing that forced the lecturers to run from the staff room, and went outside the campus. There was nothing that forced the Applicant to go outside the campus. He heard one of the lecturers talking on the radio pretending to be a community member supporting the students.

18. The staff members were required to obtain permission from the campus manager before leaving the campus premises. On 02 August 2018, he went to the corporate services offices in Bethlehem. On his arrival in Bethlehem, on his way to the offices, he saw two lecturers, Messrs. Tladi, and Twala. He was surprised to see them there. He made them aware that he saw them, and he passed, but he did not see the Applicant. He later received a phone call from Ms. Labase, Marketing Officer, saying whether he was aware that his lecturers were at SARS including the Applicant.

19. He immediately phoned Mr. Mosalla at the campus about the whereabouts of the Applicant, and other lecturers. Mr. Mosalla phoned him back, and he said he could not trace their whereabouts. Mr. Mosalla further stated that the security officer informed him that the Applicant left the campus premises. Mr. Mosalla said that he did not give the Applicant permission to leave the campus premises. The following day he called Messrs. Tladi, Ikaneng, and Twala to his office about leaving the premises without permission. They informing him that they left the premises with the Applicant. They further said that they did not have a permission to leave the premises. He issued written warnings to them as per “R41-R42”. The Applicant said that he got permission from Mr. Mosalla.

20. Ms. Lekhetho (“the intern”) was appointed as an intern, and she was allocated to the office of the Applicant in order to assist with administration work. He was informed by Mr. Moitse about the fraudulent time-sheets of the intern. Mr. Moitse informed him that the intern left the service of the Respondent, but he was in possession of her claim form for payment. The Applicant was responsible for signing her time-sheets. It was required from the Applicant to ensure that the time-sheets were correctly completed, and the intern was at work at all the times. In this matter, the intern was not at work, but the Applicant signed her time-sheets.

21. Documents “R22-R32” was the intern attendance register. The intern was last reported for duty on 15 February 2019. The name of the intern was not on the attendance register from 18 February 2019 to 15 March 2019 as per “R28-R32”. Documents “R33-R37” was the time-sheets of the intern. Documents “R34-R37” was the time-sheets completed by the intern. The Respondent gave the Applicant an audi alteram letter (“audi letter”) as per “R21”, and he responded. The Applicant was not an honest employee. The sanction imposed to the Applicant was appropriate, and fair. His conduct when dealing with this matter was not acceptable. It would not be possible to work with the Applicant because of his conduct.

22. Under cross-examination, he stated that the last examinations was on 11 April 2018. The Applicant was the senior lecturer for NCV program, and the examinations was for latent program. The Applicant was not part of the lecturers to invigilate. On 11 April 2018, they lacked resources, and as management they had to assist with the invigilation. Documents “A7-A13” was the approved invigilation time-table. The time-table indicated that the examinations would be finalized on 13 April 2018, not 11 April 2018. There was an error on the time-table. The Respondent’s calendar for the year 2018 would be able to assist whether there were examinations on 11 April 2018.

23. Documents “A30-A33” was the Respondent’s calendar for the year 2018. He had no comment about this time-table. He could not say the Applicant had meetings with the students, or supporting them in any way. The Applicant’s conduct was for the person who was supporting the students when he refused to assist with an invigilation. The Applicant was directly, or indirectly supporting the students. The Applicant by virtue of being a member of the campus management had an obligation to assist with an invigilation.

24. He saw some of his staff members in Bethlehem, and he asked Mr. Tladi what was happening, and he drove away. Ms. Labase said that the Applicant was also at SARS in Bethlehem. Mr. Mosalla did not find the Applicant at the campus on the said day. The security officer confirmed that the Applicant left the campus premises with other lecturers. Document “A19” was the attendance register, and it showed that the Applicant was at work until 15h00. He stated that he could not dispute the attendance register. He confirmed that it was a campus policy that the security officer would register the vehicles entering, and leaving the campus. He had no other document to prove that the Applicant left the campus premises prior to 15h00.

25. The Applicant submitted the trip authority to go to SARS in Bethlehem on 06 August 2018, and he approved it as per “A23”. Document “A14” was the SARS document, and the date of the assessment was on 06 August 2018. He gave the lecturers final written warnings for leaving the premises without permission on 02 August 2018. He confirmed that he did not see the Applicant at SARS, but Ms. Labase saw him. He further stated that the log book of the security officer would show that the Applicant left the premises without signing.

26. Document “R33” was the time-sheet of the intern. Ms. Mofokeng, and Ms. Maqoaelane was responsible for library, and book store. They had one senior lecturer at the campus. He stated that the responsibility of the interns lies with the Applicant. Documents “R29-R32” was the attendance register, and the intern did not sign. According to his knowledge the service of the intern was terminated on 15 February 2019. The Applicant could have verified before signing the time-sheets. Document “A6” was the intern affidavit, and he did not receive a phone call from the intern. He denied the allegation to say he had a conversation with Ms. Maqoaelane about the intern on 11 March 2019. The Applicant was going to benefit from these time-sheets, but they were stopped.

27. Under re-examination, he stated that the Applicant deliberately signed the time-sheet. The Applicant stated that the Respondent had no evidence when he responded to the audi letter. He maintained that the Applicant acted dishonestly. He maintained that there were examinations on 11 April 2018, and the Applicant was at the campus.

Third witness: Ms. Setroy Abram Mosalla

28. The witness testified under oath that the Respondent employed him as an HOD at Itemoheleng Campus. He had a knowledge about the students strike in early 2018. There was an examination written on 11 April 2018, but he could not remember which subject was written. The employees who assisted with the invigilation on that day was himself, campus manager, and marking centre managers. They had to invigilate because lecturers were outside the premises with the students. It was not necessary for the campus manager to ask the Applicant to assist with invigilation because he was part of the management team.

29. It was not difficult for the Applicant to enter the premises to assist because Mr. Mofokeng came to assist. The strike was not disruptive, and the Respondent was correct to change him with incitement. The campus manager phoned him about the whereabouts of the Applicant. He checked for him everywhere in the campus without success. The security officer informed him that the Applicant, and other lecturers left the premises. He phoned the campus manager to inform him about his findings. The Applicant, and other lecturers had no permission to leave the premises during working hours.

30. Under cross-examination, he stated that he remembered everything happened on 11 April 2018, but he could not remember the subject that was written. Documents “A7-A13” was the final examination time-table, and there was no subject written on 11 April 2018. He maintained that there was a subject written on the said date. There was a time-table from the Respondent, and the campus would draft their own.

31. He did not see the Applicant talking to the students, or with the students. He was told by the campus manager that the Applicant was instigating the students. It was a must for the Applicant to invigilate on the said date. He was told by the security officer that the Applicant and other lecturers left the campus premises. He did not check the security vehicles register to verify when they left the premises. He was told by the campus manager that they were in Bethlehem.

32. Under re-examination, he stated that the employees that left the premises without permission, normally they do not sign the departure time. The security officer had a tendency of not registering the vehicles entering, and leaving the campus premises. He did not see them until knock-off time.

Fourth witness: Ms. Dibuseng Priscilla Maqoaelane

33. The witness testified under oath that the Respondent employed her as an Administrator at Itemoheleng Campus. The intern was not allocated a particular person. The services of the intern were utilized where there was a need. The time-sheets of the intern was supposed to be sign by the head of section where the intern was working in that week. The signing of the attendance register would indicate whether the intern reported for duty on a particular day. If an employee did not sign the register, it would be difficult to indicate whether she/he reported for duty.

34. She indicated that she phoned the intern on 18 February 2019. The reason for phoning her was to check her whereabouts, but she did not answer her phone. The intern replied through WhatsApp message asking whether she was looking for her as per “R38”. The intern told her that she was in class at the University of the Free State, Qwa-Qwa campus. The intern was supposed to be at work on 18 February 2019, and she last saw her on 15 February 2019. The intern was not at work from 18 to 22 February 2019. The intern did not perform any duties on that week because she was absent from work.

35. Document “R37” was the time-sheet signed by the Applicant indicating that the intern performed her duties. Document “R40” was the sworn affidavit of the intern. She denied the allegation to say she agreed with the intern to go, and register at the university, and she would come to perform her duties. The Applicant did not come to her in order to verify whether the intern worked or not before signing the time-sheets.

36. Under cross-examination, she stated that it could happen to sign document that was falsified by another person without knowing. Documents “R34-R37” was the time-sheets that were signed by the Applicant. The Applicant could not know whether the information on the time-sheets was correct, and it was possible for the intern to falsify the time-sheets.

37. It was not a practice at the campus to check the attendance register before signing the time-sheets. She only informed the campus manager that the intern was admitted as a student at the university. It was possible that the Applicant did not know that the intern was admitted as the student at the university. According to her, the Applicant acted dishonestly by signing the time-sheets because the intern did not work in his section during that periods.

38. Under re-examination, she stated that the Applicant was given an opportunity to explain what had happened, but he failed to do so. The Applicant conduct could be deliberate.

39. Under clarity questions, she stated that the head of section was the one who was supposed to sign the time-sheets at the end of each week. She had no knowledge whether the Applicant was aware of this practice. Documents “R34-R37” were completed by the intern, and it was correct to do so.

40. She had no knowledge whether there was a policy in relation to the signing of the time-sheets. The Applicant was not at fault because there was no guiding policy. The Applicant was not aware that he had to compare the time-sheets with the attendance register. The Applicant was not aware that he was not supposed to sign the time-sheets of the intern because she performed work at another sections.

Respondent

41. She stated that it was the Applicant’s responsibility to check the attendance register before sign the time-sheets.

Applicant

First Witness: Mr. Mohapi Gilbert Sethuoa

42. The witness testified under oath that he was the Applicant in this matter, and he was the senior lecturer for latent stream. The college opened on 09 April 2018, not on 11 April 2018. He stated that he was at work on 11 April 2018, and they had a morning briefing session. Messrs. Lehlakola, and Mosalla were absent at the morning briefing session. The students arrived, and they banged the staff room door loudly. They left the staff room, and went outside. He had knowledge about the examination written on 11 April 2018. He met Mr. Lehlakola at the premises of the campus, and he asked him to assist with the examination invigilation, and he agreed to assist.

43. He went to the examinations hall, and he found the students standing outside because the setting plan was not arranged. Mr. Mollo, SADTU shop-steward, called him and he went to him. Mr. Mollo asked him what he was talking about with Mr. Lehlakola. He replied to him by saying about examination invigilation. Mr. Mollo informed him that he must wait a bit because the police were called to calm down the situation. There were no lecturers at the hall, and the question papers were not yet arrived, and later Mr. Mosalla arrived with the question papers.

44. The situation at the campus was not normal, and it was not safe to go inside the premises. He entered the campus premises after the situation calmed down, and he went to the examination hall. On his arrival, he met Ms. Ramotsie, who said to him that they were covered, therefore, his assistance was no more needed. He did not see Messrs. Lehlakola, and Mosalla at the hall. He did not talk to students about the strike. He did not speak over the radio station about the students’ strike. He did not incite students to torch the college property.

45. He denied the allegation to say he removed the lecturers from their classrooms on 02 August 2018. He denied the allegation to say he was at SARS in Bethlehem on 02 August 2018. He only went to SARS in Bethlehem on 06 August 2018 after Mr. Lehlakola approved his trip as per “A14-A15”. He submitted his SARS returns on 06 August 2018. It was a practice at their campus that when they leave the premises, the security officer would entere the name of the person leaving and the time. He did not see Ms. Labase at SARS.

46. He stated that he met the interns at the workplace, when they were introduced to them by Mr. Lehlakola. Mr. Lehlakola requested him to sign the time-sheets of the interns monthly, and he did as he was requested. He was not told that the contract of the intern was terminated. Even after this incident, he continued to sign the time-sheets of other interns. Ms. Maqoaelane did not bring the attendance register to him in order to verify whether or not the interns were really reporting for duty. If there was a proper communication, he could not have signed the fraudulent time-sheets. He had no intention to defraud the Respondent because he was not going to benefit from it.

47. When he signed the time-sheets, he had no knowledge that the intern breached her contract. He had no knowledge of the intern intent about these time-sheets. He requested Mr. Lehlakola the policy relating to the signing of the time-sheets, but he was informed that there was no policy. On 07 June 2021, he went to the medical practitioner for medical assessment, and he was booked off-sick. He submitted the medical certificate to Mr. Lehlakola, and his representative.

48. Under cross-examination, he stated that he did not apply for the postponement of the enquiry after he was booked off-sick. He was not aware that his representative was told to apply for postponement. He stated that he was part of the management team because he was the senior lecturer. He was not involved in the latent stream, but he would be involved when he was requested to do so.

49. He confirmed that he agreed to assist with invigilation. He went to the examination hall, found the students standing outside because there was no setting plan. Mr. Mollo did not say he must not invigilate. He said that he must first wait for the police to come in order to calm the situation down. The students did not block anyone to enter the campus premises. The police came, and later the students disappeared.

50. He entered the premises, and he went to the examination hall. On his arrival at the hall, he met Ms. Ramotsie, who told him that they were covered, and they do not need his assistance anymore. The following day, he told Mr. Lehlakola that he went to the hall, but Ms. Ramotsie said that they were covered. He denied the allegation to say he supported the students’ strike. He heard that the college, and central office properties were gutted, and torched.

51. He maintained that he did not go to SARS in Bethlehem on 02 August 2018. He indicated that nobody phoned him to check his whereabouts. He was at the campus on the day in question. He could not for sure said that he was at a specific area. He heard from the testimony of Mr. Mosalla that the security officers had the tendency of not registering the vehicles leaving the premises during working hours. He stated that every official sign the register on his arrival, or leaving the workplace during working hours.

52. He stated that he signed the time-sheets because he was instructed to do so. He understood the allegation against him. He was doing his duty when signing the interns’ time-sheets. He did not sign the time-sheets as a confirmation that the intern was present at work, and executed her tasks. He later stated that signing the time-sheets was the confirmation that the intern was present at work, and she performed her duties. It was unfortunate for him to sign the time-sheets because there was a contract between the intern, and the Respondent. He was not informed that the intern was not working for the Respondent anymore, and he must stop signing her time-sheets.

53. He did not control, or have an access of the attendance register. He was not aware that the intern was not reporting for duty. The Respondent only informed him about the intern breached of contract after signing the time-sheets. He worked on the same building with Messrs. Lehlakola, and Mosalla, and Ms. Maqoaelane, but they failed to inform him that the intern was last reported for duty on 15 February 2019. He could not confirm whether the intern worked in his section for the period 25 to 28 February 2019 as per “R37”. He was the only senior lecturer at NCV stream. He denied the allegation to say he knew what he was doing. He confirmed that the intern completed the time-sheets as if she worked, but he denied that he colluded with her.

54. Under re-examination, he stated that he had no knowledge when the Respondent property was gutted, and torched. He never had any discussion with the intern in order to falsify the time-sheets.

55. Under clarity questions, he confirmed that there was an examination written on 11 April 2018. The subject that was written was not on the college time-table, but only on the students’ time-table. He was requested to invigilate, but he did not go and assist. Mr. Mollo was SADTU site steward, and he was not senior to him. Mr. Mollo raised an important safety issue to wait for the situation to calm down, and he may go, and assist with the invigilation. He did not inform Mr. Lehlakola about the safety issues. He confirmed that he was the member of the campus management team.

56. He confirmed that he signed the intern time-sheets as per “R34-R37”. He was instructed by Mr. Lehlakola to sign for the interns’ time-sheets. He stated that when he signed the time-sheets, he was confirming that the contents of the time-sheets were true, and correct. He had no knowledge whether, or not the intern worked for the period 18 to 28 February 2019. It was a practice at their campus to just sign the documents without verification. He confirmed that he did not verify whether, or not the intern worked, and performed the tasks for that period. Mr. Lehlakola did not tell him about procedure to follow when signing these time-sheets, and he did not provide him with any policy. He stated that he did not have any discussion with the intern in order to falsify the time-sheets.

Respondent

57. He confirmed the evidence of Mr. Lehlakola in relation to charge 3. He denied the allegation to say he had discussion with the intern in relation to falsified time-sheets.

Applicant

58. He stated that he did not verify the documents prior to signing them. No one verify whether the interns worked prior signing the time-sheets.

Second witness: Mr. Morobi Joseph Ikaneng

59. The witness testified under oath that the Respondent employed him on a fixed term contract at Itemoheleng campus in the year 2018. He knew the Applicant as the senior lecturer. On 11 April 2018, he was at work, and there were students’ strike. The lecturers were not aware about the examination on the said date. The college time-table indicated that there was no examination, but the students’ time-table indicated that there was an examination. Mr. Mollo called the SADTU members, and informed them that they must not invigilate because the time-table indicated that there was no examination. The Applicant never went outside the campus premises.

60. On 02 August 2018, he went with Messrs. Tlali, and Twala to Bethlehem without permission. The Applicant did not go with them. He knew Ms. Labase, and he never met her at SARS in Bethlehem. He denied the allegation to say they went to Bethlehem with the Applicant. Mr. Lehlakola wanted to serve him with the written warning for leaving the premises without permission, but he refused to acknowledge receipt of that warning.

61. Under cross-examination, he stated that he could not remember what had happened in the year 2018. He had no knowledge whether the students wrote examinations on 11 April 2018. He had no knowledge whether the Applicant was given an instruction by Mr. Lehlakola. He had no knowledge whether the Applicant could not be found at the campus premises on 02 August 2018. They did not meet the Applicant when they came back to the campus on 02 August 2018.

62. Under re-examination, he stated that he had nothing to gain for telling a lie in these proceedings.

Third witness: Mr. Lehlohonolo Joshua Zwane

63. The witness testified under oath that the Respondent employed him as a Senior Lecturer at Maluti TVET College. He is elected as SADTU Maluti Branch chairperson. He testified about SADTU activities, and the shop-stewards responsibilities.

64. Under cross-examination, he stated that he had no knowledge who was responsible for safety issues during the students’ strike.

Survey of arguments

Respondent

65. The Respondent’s representative submitted that the Applicant did not seek indulgence from the presiding officer to postpone the enquiry, and he waived his right to be heard. The Respondent representative submitted that indeed there was a delay to issue the outcome, and a sanction, but the presiding officer gave reasons for the delay. The Applicant did not show any harm he had suffered due to this delay. In the event the commissioner found that the delay was inexcusable, such delay would not render the dismissal substantively unfair.

66. The Respondent representative submitted that the Applicant’s failure to assist with invigilation, and stood outside the campus, gave the students more strength to continue with the strike. In the eyes of the students, the lecturers including the Applicant were supporting their fight for the removal of the Principal. The evidence presented at the proceedings showed that there was no reason for the Applicant not to enter the premises, and assist with the invigilation as requested. Therefore, the Applicant, and other lecturers sought to influence the minds of the students to continue with the strike.

67. The Applicant was dishonest when signed the time-sheets because he was made aware of the issue, and instead of correcting such, he stated that the Respondent had no expert evidence. The Applicant insisted that the intern was at work, even though he was shown the proof that she was absent. This conduct clearly showed his intention to deceive the Respondent. It is the Respondent contention that, the Applicant had a discussion with the intern regarding the signing of the time-sheets. The Applicant version to say he was not aware must not be considered because he was made aware. The Applicant’s dismissal was both procedurally, and substantively fair.

Applicant

68. The Applicant’s representative submitted that the Applicant did not claim to be sick, he had chronic illness that was known to the Respondent. The Respondent decided to proceed with the enquiry in the Applicant’s absence. The Respondent took two (2) years to communicate the outcome of the enquiry. The presiding officer was required to communicate the outcome of the enquiry within five (5) working days, but he failed to do so. The conduct of the presiding officer prejudiced the procedure, and that led to the procedure to be unfair.

69. There was no evidence presented during the proceedings to prove that the Applicant incited the students to strike. The Applicant did not instigate the strike when he went outside the campus. The failure to invigilate was not to influence the students to strike. All the witnesses testified during the proceedings did not see the Applicant at SARS in Bethlehem, or leaving the campus during working hours. The direct witnesses were not called testified about charge 2.

70. Falsification is the act of deliberately lying about, or misrepresenting something. Dishonesty entails a lack of integrity, or straightforwardness and, in particular, a willingness to steal, cheat, lie, or act fraudulently. The act of intent to defraud should be shown. The Applicant did not deny putting his signature on the time-sheets without verification. The Applicant was disputing that his act amounted to falsification, and dishonesty. The intention to defraud was with the intern, not the Applicant. The Respondent continue to trust the Applicant to sign the time-sheets of other interns after this incident. The time-sheets were not completed by the Applicant. The Respondent did not inform the Applicant that the intern was not working for them anymore. The Applicant was served with the audi letter after this allegation. The Applicant dismissal was both procedurally, and substantively unfair, and he sought retrospective reinstatement.

Analysis of evidence and arguments

Introduction

71. In every alleged unfair dismissal dispute, the Applicant party is required to establish the existence of the dismissal. Once that is done, then the evidentiary burden of proof shifts to the Respondent party who is required to prove the alleged dismissal was fair. In this matter, it is a common cause that the Applicant was dismissed, and his dismissal was due to misconduct, therefore, the Applicant established the existence of his dismissal. In discharging the onus, the Respondent led the evidence of four (4) witnesses.

72. It is important to note that the evidence of the Applicant third witness, Mr. Zwane, was not relevant to the issues in dispute.

Procedural fairness

Which Code was used to charge the Applicant?

73. It is the Applicant’s version that the Respondent instituted the disciplinary action against him in terms of PSCBC Resolution 01 of 2003. It is the Respondent’s undisputed evidence that the charges against the Applicant were amended in terms of the code. I, therefore, conclude that the Respondent disciplined the Applicant in terms of the correct code.

Whether the Applicant applied for postponement?

74. It is the Applicant version that he consulted his medical practitioner on 07 June 2021, and he was booked off-sick from 08 to 10 June 2021. He submitted the medical certificate to Mr. Lehlakola, and his representative. It is the Respondent version that they were aware that the Applicant was booked off-sick, but he did not apply for postponement of the enquiry. It was the Applicant’s evidence that he was aware about the enquiry to be held on 09, and 10 June 2021. Based on the evidence presented at the proceedings, there was no application for postponement before the presiding officer of the enquiry.

75. In this matter, the Respondent offered an Applicant a chance to defend himself against the allegations of misconduct which led to his dismissal, but he did not use this opportunity. The crucial question was whether his absence from the enquiry was justified. The medical certificate did not allege that he was incapable of attending the enquiry at all. It was the Applicant’s duty to apply for postponement of the enquiry. If he was unable to attend it due to illness, but he failed to do so. The Applicant was the only person to be blamed for his absence.

76. I conclude that the Applicant had wilfully, and voluntarily excluded himself from the enquiry. The Respondent did not act procedurally unfair in continuing with the enquiry in his absence.

Whether the Respondent delayed to issue final outcome?

77. It is common cause that the enquiry proceeded, and concluded on 09 June 2021 in the Applicant’s absence. Clause 7.18 of the code states that the presiding officer must give a finding whether, or not the employee has committed the misconduct, and must inform the employee of the finding, and the reason thereof.

78. There is no time-frame for the presiding officer to give the employee his/her finding with reasons. In this matter, it is common cause that the presiding officer gave his finding on 05 February 2023, after eighteen (18) months, and six (6) days from the last day of the enquiry. Even though there is no time-frame to inform the employee about the finding, eighteen (18) months, and six (6) was too excessive.

79. Clause 7.21 of the code states that the presiding officer must communicate the final outcome of the hearing to the employer, and the employee within five working days after the conclusion of the disciplinary enquiry, and the outcome must be recorded on the personal file of the employee. Clause 8.1 of the code states that if the presiding officer finds an employee has committed misconduct, the presiding officer must, on behalf of the employer, impose a sanction, taking into account the following; the nature of the case; the seriousness of the matter; the employee’s previous record; and any mitigating or aggravating circumstances. The sanction of a dismissal was issued on 03 March 2023.

80. The Respondent must always be given an opportunity to explain such delay, and whether an explanation is sufficient depended on the particular facts. Further, there may well be particular consideration of justice having to be done, and be seen to be done, that could serve to save the day even where an undue delay exists.

81. It is the Respondent witness, Mr. Dube that he had no knowledge about the time-frames of the code. It was an oversight on him for not issuing the outcome within the stipulated time-frame. He further stated that he lost the records of the enquiry because of the house break-in during October 2021. The presiding officer was required to communicate his finding, and reasons within a reasonable time, but he failed to do so. The alleged break-in, happened in October 2021, long time after the evidence was concluded. The Respondent failed to provide justifiable, or convincing explanation for the delay during the proceedings. This delay caused material prejudice to the Applicant. Although involvement in falsifying documents may be seen as misconduct which infer intolerable, the Respondent did not regard such a misconduct as creating intolerable working condition.

82. It is worth noting that the Applicant was not precautionary suspended from work. He continued to render his service as expected from the known date to the date of the dismissal. It is clear that the Respondent condoned the Applicant’s conduct, and the employment relationship was not broken. The code is the internal standard to which the Respondent is bound. The failure to follow an internal disciplinary code is not in itself fatal, but it remains relevant factor in determining its impact on the fairness of the process. I find the Respondent failed to comply with a fair procedure before dismissing the Applicant, therefore, the Applicant dismissal was procedurally unfair.

Substantive fairness

83. In Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and others (2008) 3 BLLR 197 (LAC), it was held that fairness is determined mostly on the basis of the reason for the dismissal which the employer had given at the time of the dismissal. In terms of Schedule 8 item 2(1) of the Labour Relations Act, as amended (“the Act”) a dismissal is unfair if it is not effected for a fair reason. The allegations levelled against the Applicant are as follows;

Whether the Applicant incited the students?

84. The Applicant was charged for incitement of students in that on 11 April 2018, he failed to assist other Managers to invigilate the examinations that were administered on that day. This act is viewed as an act of incitement of students in order to support them in their “fight” to remove the Principal. Further, this act of incitement of students left the property of the College gutted and/or torched. The Applicant denied the allegation against him.

85. Reading of this allegation against the Applicant, the Respondent is alleging that the Applicant failed to assist other managers to invigilate, and that failure constituted an incitement. The Respondent was required to prove that there was an examination written on 11 April 2018, and that the Applicant failed to assist with invigilation, and the Applicant conduct constituted an incitement. Although the Respondent made an allegation against the Applicant, there was no evidence presented during the proceedings to support this allegation.

86. It is the Applicant’s version that there was an examination written on the day in question, and he failed to assist with invigilation. It is common cause that the students were striking on the said date, and the lecturers including the Applicant were outside the campus premises. It is the Respondent evidence that the Applicant was not seeing talking to the students; or transporting the students during the strike. It was further the Respondent evidence that the community member who was talking on the community radio could not being confirmed that it was the Applicant.

87. Incitement is a common law criminal offence. As defined, it involves the intention by word, or conduct to influence the mind of another in the furtherance of committing a crime. On the facts of this matter, the Applicant did not incite anyone to commit a crime. Since inciting students to engage in a strike action is not a crime, it can never be said that by so doing, Applicant committed incitement. The failure to assist with the invigilation, and standing outside the campus premises during the students’ strike does not constitute an incitement. There was no evidence presented during the proceedings to prove that the Applicant incited the students to remove the Principal, and to torch the property of the college. I, therefore, conclude that the Applicant did not commit any act of incitement as alleged by the Respondent.

Whether the Applicant left the premises without permission?

88. The Applicant was charged for leaving the workplace without permission on 02 August 2018, when he left the workplace without permission to attend to his personal tax matters at SARS in Bethlehem. In that, he also removed three lecturers namely Messrs. Tlali PJ, Twala E, and Ikaneng MJ out of class without the consent of the campus manager. The Applicant denied the allegation against him.

89. Reading of this allegation against the Applicant, the Respondent is alleging that the Applicant went to SARS in Bethlehem during working hours without permission. The Respondent was required to prove that the Applicant removed other lecturers out of their classes without permission, and they went to SARS in Bethlehem. Although the Respondent made an allegation against the Applicant, there was no evidence presented during the proceedings to support this allegation.

90. It is Mr. Lehlakola’s evidence that he did not see the Applicant in Bethlehem, let alone at SARS. It is his evidence that he was telephonically informed by Ms. Labase that the Applicant was at SARS. It is clear that Mr. Lehlakola was told, and that constituted nothing more than a hearsay. The Applicant disputed that he was at SARS in Bethlehem on the day in question. The Applicant rebutted the Respondent evidence by proving that he was at SARS in Bethlehem on 06 August 2018, and Mr. Lehlakola gave him permission as per “A14-A17”, and “A23”.

91. Mr. Lehlakola’s evidence was regarded as hearsay because it was not corroborated by a direct witness, or Ms. Labase. The question that need to be ask is whether the Applicant left the workplace with other colleagues without permission. It is the Respondent evidence that the security officer informed Mr. Mosalla that the Applicant, and his colleagues left the premises. The Respondent failed to provide these proceedings with the access control register of the said date in order to prove this allegation. It is Mr. Lehlakola’s evidence that he was told by Mr. Twala that they went with the Applicant to SARS in Bethlehem.

92. Messrs. Lehlakola, and Mosalla’s evidence were regarded as hearsay because it was not corroborated by a direct witnesses, or Mr. Twala, or security officer. There were no reasons provided by the Respondent why Mr. Twala, Ms. Labase, and security officer were not called as witnesses. It will not be in the interest of justice to admit the hearsay as evidence. I, therefore, conclude that the Respondent failed to prove that the Applicant left the workplace without permission, and he went to SARS in Bethlehem.

Whether the Applicant falsified time sheets?

93. The Applicant was charged for misconduct that happened between February, and March 2019, when he was involved in falsifying and/or assisted in falsifying a time sheet for a former intern certain Ms. Mapaseka Emily Lekgetho as if she was on duty for the whole month of February 2019 whereas her last day at work was 15 February 2019. It is alleged the intention of the time sheet was for the intern to earn a salary for March 2019 as if she was on duty whereas she was not. The Applicant denied the allegation against him.

94. Reading of this allegation against the Applicant, the Respondent is alleging that the Applicant was involved and/or assisted in falsifying a time sheet in order for the intern to earn a salary as if she worked. The Respondent was required to prove that the time sheet was signed by the Applicant, and that the Applicant knew that it was a falsified, and he was involved and/or assisted in any way to commit such. An involvement and/or assistance will be based on the role the Applicant played in that falsified.

95. It is undisputed evidence that the Applicant signed the time-sheets of the intern for the period 18 to 28 February 2019. It is undisputed evidence that the intern was not at work, and she did not perform any duties during the said period. It is the Applicant’s evidence that he did not verify the contents of the time-sheets prior signing them. The question that need to be ask is whether the Applicant when signing these time-sheets knew it were falsified, and he was involved, and/or assisted to falsify them.

96. In Pioneer Foods (Pty) Ltd v CCMA and others (JR 1685/19) (handed down on 28 April 2023) the employee was dismissed for “forgery or dishonesty for allegedly manipulating the numbers on the excel spreadsheet”. The Court provided the following explanation as to what constituted forgery: “[15] forgery is the making of a false document with intent to defraud, resulting or calculated to result in some prejudice to another”. The facts showed that the employee had done his work in the same manner (as he was initially taught) for a period of 5 years without knowing that he was not following the correct procedure.

While the Court accepted that this was a breach of a rule, the commissioner’s finding was accepted in that the Court held: “[17] the commissioner’s finding that the employee was negligent does not mean that the rule was not breached. Rather, it implies that the employee had not intentionally breach the rule”. The Court further held: “[21] the employee said that had he known the correct procedure, he would not have continued to follow it. This is an employee who, in my view has demonstrated that he had not acted intentionally and there is nothing to contradict this version”.

97. A mere suspicion of guilt does not satisfy the test of proof on a balance of probabilities. It is expected from the Respondent to adduce evidence to prove that the Applicant committed a gross misconduct that warrant a dismissal. The evidence of Mr. Lehlakola, and Ms. Maqoaelane contradicted each other in relation to this allegation. Mr. Lehlakola testified that it was the Applicant’s responsibility to sign the time-sheets of the interns. Ms. Maqoaelane testified that it was the responsibility of the section head where the interns worked to sign the time-sheets, not the Applicant.

98. It is Ms. Maqoaelane evidence that it was not a practice at their campus to check the attendance register before signing the time-sheets. She further testified that it was possible that the Applicant did not know that the intern was admitted as student at the University. According to her, the Applicant conduct constituted an act of dishonesty because the intern did not work in his section in that period. It is her testimony that there was no guiding policy in relation to the signing of the interns’ time-sheets.

99. Based on the evidence presented during the proceedings, it is clear that the Applicant’s conduct amounted to negligence. The question that need to be ask is whether the Applicant had the intention to falsify the time-sheets? There was no evidence tendered during the proceedings to conclude that the Applicant had the intention, except to speculate that his failure to respond adequately to the audi letter had the intention, or he deliberately falsified the time-sheets. The Respondent failed to prove that the Applicant, and the intern connive to falsify the time-sheets. The Respondent failed to prove that the Applicant committed an act of misconduct in relation to this allegation.

Conclusion

100. The burden of proof is on the Respondent to prove the alleged dismissal was fair. Although the Respondent made allegations against the Applicant, there was no evidence presented during the proceedings to support these allegations. It is clear from the evidence presented during the proceedings that the Applicant did not breach any Respondent’s rules. In the event that an employee is dismissed for reasons related to misconduct, the employer is bound by the election it has made, as was confirmed in Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and others as per paragraph 32. The Respondent cannot escape the consequences of the way it decided to word the charge sheet and the charge on which it proceeded to discipline and dismiss the Applicant.

101. The Respondent failed to prove fairness in this dismissal, and the evidence presented by the Respondent cannot sway my mind in a different direction. In these circumstances, I find the Applicant dismissal to be both procedurally and substantively unfair.

Remedy

102. In terms of Section 193(1) of the Act, a commissioner has a wide-ranging powers should he/she find that a dismissal is unfair. Nevertheless, the primary remedy for an unfair dismissal in terms of the Act is reinstatement or re-employment. In Nel v Oudtshoorn Municipality & another (2013) 34 ILJ 1737 (SCA), the meaning of reinstatement was explained by reference to a Constitutional Court’s finding in Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration that reinstatement meant “To put the employee back into the same job or position he occupied before the dismissal on the same terms and conditions. Reinstatement is the primary remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he would have been before the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal... and do not conclude an employment contract afresh… The employer merely restores the position to what it was before the dismissal.”

103. The Applicant relief sought was retrospective reinstatement. No evidence was placed before me at arbitration proceedings to indicate that this will be intolerable or impractical, except to say trust relationship was broken. I will therefore order that the Applicant be reinstated. The Applicant was dismissed on 30 October 2023. I will order that he be reinstated with effect from 30 October 2023; that he must report for duty at the normal time on Monday, 15 July 2024. The Respondent must pay him the outstanding salary from 01 November 2023 to the date of reinstatement.

104. Based on the above, the Applicant must be paid the basic salaries from 01 November 2023 to 30 June 2024 in the amount of R303 981, 04.

(R37 997, 64, per month x 8 months (01 November 2023 to 30 June 2024) = R303 981, 04).

This total amount excluding the salary adjustment, and benefits for the period 01 November 2023 to 30 June 2024.

Award

105. The dismissal of the Applicant, Mr. Mohapi Gilbert Sethuoa, is found to be both procedurally and substantively unfair.

106. The Applicant is reinstated with effect from 30 October 2023 on terms no less beneficial than those that applied prior to his dismissal. The Applicant will resume with his duties at the normal time on Monday, 15 July 2024.

107. The Respondent, Department of Higher Education & Training, is ordered to pay the Applicant the total amount of R303 981, 04, this being his salary for the period 01 November 2023 to 30 June 2024, and which must be paid into the Applicant’s bank account, the details of which are known to the Respondent, by no later than 31 July 2024.

Signature: 
Commissioner: Khuduga Tlale
Sector: Higher Education & Training