ELRC853-23/24MP

Panellist: Asnath Sedibane
Case No: ELRC853-23/24MP
Date of Award: 22 July 2024


In the ARBITRATION between:

SADTU obo Mahaye, Thami Pannington
(Union / Applicant)
And

Department of Higher Education & Training
(Respondent)

Union/Applicant’s representative: Mr. Kabelo Lekitlane
Union/Applicant’s address: Telephone:
Telefax:
Email:

Respondent’s representative: Mr. Tumelo Mokubyane
Respondent’s address:


Telephone:
Telefax:
Email:

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearings between SADTU obo Mahaye Thami Pannington and the Department of Higher Education and Training were held under the auspices of the Education Labour Relation Council (ELRC), virtually via Zoom Meetings on 13 May 2024 and via Microsoft Teams on 28 May 2024 and on 03 July 2024.

2. The applicant, Mr Thami Pannington Mahaye attended the process and he was represented by Mr Kabelo Lekitlane, an official of the South African Democratic Teachers Union (SADTU). The respondent, Department of Higher Education and Training was represented by Mr Tumelo Mokubyane, its Employee Relations Officer.

3. The process was manually and digitally recorded.
4. The parties exchanged bundles of documents, the Respondent’s bundles were marked as “A” “B” and “C” respectively. The Applicant’s bundle was marked as bundle “A”.
PRELIMINARY ISSUES
Disclosure of recordings

5. The applicant made an application for an order that the respondent must provide the recording of the internal disciplinary hearing and that the respondent was in breach of clause 17.6 of Part C of the ELRC Constitution.

6. The respondent submitted that it had complied with clause 17.6 of Part C of the ELRC Constitution. The respondent was unable to provide the recording of the disciplinary hearing as the Presiding Officer indicated that he had lost the recording.

Ruling

7. After considering both parties’ submissions on the application, I ruled that I would not order the respondent to provide recordings which were no longer available. Arbitration is a hearing de novo and the applicant will therefore not be prejudiced by the fact that recordings of the internal disciplinary hearing were no longer available.

The arbitration be held in a physical sitting

8. The applicant made an application that the arbitration be adjourned and be rescheduled to be held
physically at the respondent’s premises in Standerton, Mpumalanga Province. According to the
applicant’s representative, the parties have at the pre-arbitration meeting agreed to have the arbitration
held physically.

9. The respondent submitted that it has not agreed to have the matter held physically and the pre-arb
minutes were not signed. Witnesses were based in different locations and it would be convenient to
have them give evidence virtually.

Ruling

10. My ruling on this point was that the matter will proceed virtually, as scheduled. The parties were notified on time about the arbitration. If the applicant wanted to have the matter held physically, he should have made the application to the ELRC timeously.

Application for postponement

11. The applicant applied for a postponement of the matter, stating that it would be procedurally unfair to proceed when the parties have not exchanged documents.

12. The respondent opposed the application for postponement and submitted that the documents that they have given to the applicant were the same documents that were used in the internal disciplinary hearing. There was therefore no need for a postponement.

Ruling

13. I declined the application for postponement as this would defeat the principle of speedy resolution. I ruled that the arbitration would proceed, as scheduled.

ISSUES TO BE DECIDED
14. I was required to determine whether the dismissal of the applicant by the respondent was procedurally and substantively fair.


BACKGROUND TO THE DISPUTE
15. The applicant, Mr. Thami Mahaye was at the time of dismissal employed as an Education Specialist by the Respondent, the Department of Higher Education & Training, at Gert Sibande TVET College in Evander. He commenced employment with the Respondent on 01 October 2013. He was dismissed by the respondent on 26 February 2024. At the time of dismissal, the applicant was earning a monthly basic salary in the amount of R40 885,13.

16. The applicant was dismissed following an internal disciplinary hearing based on charges of misconduct relating to allegations of inciting other lecturing staff to engage in unprocedural conduct; displaying disrespectful conduct to Mr Nkosi (Campus Manager); and discussing matters with unauthorized persons.

17. The applicant disputed the procedural and substantive fairness of his dismissal. The respondent on the other hand contended that the applicant’s dismissal was both procedurally and substantively fair.

 18. The following issues were common cause between the parties:
19.1 The applicant was charged with misconduct and dismissed following an internal disciplinary hearing.
19.2 The record of the internal disciplinary hearing was not available.
20. The issues in dispute were as follows:
20.1 Whether the applicant was subjected to a fair disciplinary hearing.

20.2 Whether the applicant committed the alleged misconduct that resulted in his dismissal.
SURVEY OF EVIDENCE AND ARGUMENTS
THE RESPONDENT’S CASE:
The first witness for the respondent, Mr. Japie Albert Nkosi, Acting Deputy Director: Central, testified under oath as follows:
21. He is employed as a Campus Manager, Gert Sibande TVET College, Evander Campus. He is currently acting as a Deputy Director: Central in Standerton.
22. His responsibilities as Campus Manager included ensuring compliance with policies and legislation within the Department of Higher Education and Training, ensuring that there is teaching of students by lecturers, supervising staff including support staff.
23. He knows the applicant, they worked together at Gert Sibande TVET College, Evander Campus, before the applicant was dismissed. The applicant was also a part of the Campus Management Team and a SADTU Shop Steward.

24. He had compiled the report on the misconduct by the applicant. There was a meeting of the Campus Management Team (CMT) on 30 March 2022. The applicant was part of the meeting. The issue of Mr Masamha’s contract was one of the agenda items in that meeting. The expectation was that the CMT would allow the matter to be taken to the Executive Management. The applicant took the matter and discussed it with the lecturing staff. In the report, there is an indication of the uncomfortably by the applicant with the matter of Mr Masamha. The applicant always brought union interests to meetings. After the CMT meeting, Mr Maceke came and requested to have a meeting with the lecturing staff. This was discussed with the staff representatives, Ms Maceke and Mr Kekana who represented the support staff. It was agreed that the meeting would be when the College reopened in the next term.

25 On 31 March 2022, there was a scheduled staff meeting, to be held at 13h00. Before the meeting, Mr Maceke came to request again to have a meeting with the lecturing staff. He gave permission for the meeting to be held for an hour, before the meeting for all staff. At 13h00, he and the support staff joined the meeting in the hall where the lecturing staff was attending their meeting. When he was still discussing with Mr Maceke about adjourning the meeting, the applicant started a song and the lecturing staff joined in the singing. The applicant opened the door, indicating to the lecturing staff to move to the cafeteria to proceed with their meeting. He followed the lecturing staff to the cafeteria and reprimanded them and reminded them to join the meeting they had left. The applicant stood up and indicated that he (Mr Nkosi) should leave the venue as they wanted to continue with their meeting and also said that they would not join his meeting. He regarded this as insubordination, as a Manager, the applicant knew applicable prescripts within the Department.

26. In his report, he highlighted that the applicant had mobilised for an illegal strike to save Mr Masamha and that he had taken a confidential management issue and discussed it with lecturing staff. The lecturing staff had continued with their meeting and never joined the staff meeting. After their meeting, Mr Maceke gave him a report.
27. The applicant had failed to adhere to the Code of Conduct and he was conflicted as part of management and being a unionist. His dismissal was fair.
28. Under cross-examination, Mr Nkosi confirmed that he was not part of the meeting of the lecturing staff on 31 March 2022 and that he did not hear the applicant discussing the issue of Mr Masamha in that meeting. He however indicated that the issue was discussed in that meeting as per the minutes.
29. He said that the issue of Mr Masamha’s contract not being renewed was confidential. It was put to him that Mr Masamha’s letter on the issue was dated 25 March 2022, which was five days before the CMT meeting. He conformed that SADTU had requested a meeting with him to discuss the issue of Mr Masamha and that this was before the CMT meeting.
30. It was put to Mr Nkosi that some CMT members were also part of the lecturing staff meeting, his response was that he was not aware of that. He disputed that he had granted permission for the extension of the lecturing staff meeting. He reiterated that he had reprimanded the lecturing staff about proceeding with their meeting when the official staff meeting started at 13h00 and the applicant had told him to leave the meeting.
31. He confirmed that Ms Mdlankomo had also engaged him in the cafeteria. It was put to him that the applicant and Ms Mdlankomo will testify that the applicant did not say that they will not come to his meeting. He disputed the version and said that he was not the only one who heard the applicant utter those words. The song that was sung in the hall was: “Evander le, abayiyaziyo abazange bayibona. “
The respondent’s second witness, Mr Thabang Kekana, Bursary Officer, testified under oath as follows:
32. He is a staff representative at the College. His duties as staff representative include liaising with the CMT regarding issues raised by the staff, being part of committees responsible for staff wellness and representing staff members.
33. Staff meetings were called by Mr Nkosi through bulk smses. On 31 March 202, he had left his office around 12h50, to attend the meeting at 13h00. He was with a colleague, Mr Mbethe. When they reached the hall, there were lecturing staff in the hall, having a meeting.
34. He was walking behind Mr Nkosi when they entered the hall and when they were about to sit down, there was a song that was started in the hall. He had sat at the back of the hall, not far from where Mr Mahaye was sitting. Mr Mahaye was the one who had started the song “Evander le, abayiyaziyo abazange bayibona.” The lecturing staff left the hall and continued singing outside.
35. Mr Nkosi had gone to the other venue to address the lecturing staff. He had also gone to the other venue to tell Mr Nkosi that they were waiting for him in the hall.
36. Under cross-examination, Mr Kekana reiterated that he had gone to the cafeteria to tell Mr Nkosi that they were waiting for him in the hall. He reiterated that he had seen the applicant start the song. He could not remember what t-shirt the applicant had worn on the day but he could recall that he had worn silk track pants.
The respondent’s third witness, Mr Nicholas Yende, the Chairperson of the applicant’s disciplinary hearing, testified under oath as follows:
37. He had conducted a fair disciplinary hearing and he had issued the report of the disciplinary hearing which is in part C of the respondent’s bundle. He had found the applicant guilty on the three charges and had recommended the sanction of dismissal.

38. Under cross-examination, Mr Yende testified that Mr Nkosi had been the complainant in the applicant’s disciplinary hearing and he had given evidence in the hearing. Mr Simelane was the initiator. He confirmed that Mr Nkosi had been in the hearing throughout and that there was an objection raised against this and he had ruled in favour of the employer. He said that it had been agreed that Mr Nkosi would not be taking part in anything else in the hearing after he had testified.

39. Mr Simelane had been the one recording the proceedings on the day of the disciplinary hearing. He (Mr Yende) had taken notes. Mr Simelane had shared the recording with him but he no longer had it.

 THE APPLICANT’S CASE:
The applicant, Mr Thami Pannington Mahaye, testified under oath as follows:
40. He was an Education Specialist in Electrical Engineering before he was dismissed. On 31 March 2024, he had gone to the meeting with his colleague, Ms Mdlankomo. They had sat at the back. Mr Maceke chaired the meeting. The lecturing staff felt they still had other agenda items to d