ELRC596-23/24KZN

IN THE MATTER BETWEEN:

Cele S. Applicant

And

Department of Higher Education and Training Respondent

ARBITRATION AWARD

Case Number: ELRC596-23/24KZN

Date of Award: 19 July 2024

ELRC Arbitrator: T. Mtolo

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 dispute was referred to the Education Labour Relations Council (hereinafter referred to as “the ELRC”) in terms of section 191(1)(a) of the Labour Relations Act (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on 20, and 21 May 2024 and 24 and 25 June 2024.

2. The Applicant (Sandile Cele) was present and was represented by Mr. Fortune Sibisi, a SADTU Union Representative, the Respondent (DHET) was present and represented by Mr. Sakhile Benedict Mthethwa, its Labour Practitioner.

3. The closing arguments were submitted on 05 July 2024.

BACKGROUND TO THE ISSUE
4. The Applicant referred a dispute relating to dismissal to the Education Labour Relations Council (ELRC).

5. The matter was conciliated and remained unresolved. A certificate of non – resolution was issued.

6. Arbitration proceedings took place on the dates aforementioned.

7. Both parties handed in Annexures A – E and concluded their pre-arb minutes.

8. The applicant argues that his dismissal was substantively and procedurally unfair and seeks retrospective reinstatement. The respondent argues that the dismissal was substantively and procedurally fair and prays for dismissal of the matter.

ISSUE TO BE DECIDED
9. I must determine whether the dismissal of the applicant was substantively and procedurally fair, if not, an appropriate remedy.

SURVEY OF EVIDENCE AND ARGUMENT

Respondents’ case
10. First Witness: Mr. Sibusiso Benedict Mthethwa, a Labour Relations Practitioner, was the first witness for the respondent. He was appointed to represent the College at the disciplinary hearing as the initiator. Mthethwa explained that the Chairperson of the hearing was a labour consultant from Rian Kruger (Pty) Ltd, a firm with which the College had a retainer. He argued that using Kruger’s services did not prejudice the proceedings because the College lacked competent personnel to preside over such matters. He referenced Bundle A, page 41, par4.6.3(3)(ii), to justify the College’s decision to appoint an external consultant where the college is empowered to appoint any other suitable persons to preside over disciplinary hearings. He further referenced Bundle B, page 54 par 20(c) (b)-and (4) (a) The applicant is not employed as per Public Service Act, the applicant is appointed in terms of par. (20) (4, a) which is the College Council. Page 58, section 36: The disciplinary code confirms that staff appointed as above is subjected to the disciplinary code of conduct policies and procedures as determined by the College Council. 

He further testified that the college has appeals process that is handled by two persons, the Acting Principal Elsie Du Toit and the Human Resources Committee Chairperson Advocate Sindane, he submitted evidence of two appeals of other employees that were subjected to the same process, the applicants appeal was submitted on 27 July 2022. The dismissal was upheld. On Bundle B page 87, he stated that he conducted a refresher course for employees on the code of conduct where the applicant was in attendance on 13 July 2022, employees were further cautioned by their supervisor on their conduct. Bundle B, page 8: Notice of Disciplinary enquiry: (i)Fraudulent timekeeping in the code of conduct is on page 73 where it is a dismissible offence at first offense. (ii) Improper conduct is a breach of employees of duty of good faith- Gross insubordination which includes serious disrespect, and insolence or impudence which accounts for dismissal, (iii)Transporting students to perform private work without authorisation- a dismissal at first offense. 

The respondent could not establish whether the applicant was paid or not for the private work. The students were from an organisation called IOPSA, the work was unauthorised by the college. On bundle D, page 3, par2.2: The respondent charged the applicant after seven months which was attributed to the investigation that had to be undertaken by the Supervisor who further had to collect affidavits from students as per Bundle B, page 17,18, and 19. Affidavits were collected in the month of August. Page 47 is the letter from IOPSA dated 01 September 2022. He stated that the college has voluminous labour relations work but lack the human resources to deal with matters expeditiously. The college has eight campuses and rely on one Labour Relations Personnel and the services of Riaan Kruger (Pty) Ltd whom does not have dates available immediately, also the of the year and leave played a major fact. The applicant subsequently the charges in February 2023, the timeframe was not excessive, he asserted that the period was five months as the investigation was concluded in September 2022 and there was no prejudice to the applicant.

11. Under cross examination: Mthethwa testified that the disciplinary procedures followed were in accordance with the College’s code of conduct and policies. Mthethwa elaborated on the College’s reliance on external consultants for disciplinary hearings due to their specialized knowledge and impartiality and that it is not a requirement for the college to ascertain whether the Chairperson is that of a higher level as they are service providers and relied on Bundle A, page 41(ii) and justification of subjecting the applicant to a Chairperson as appointed by the college as per Bundle B, page 38, 36(1) section 20(4) (a). He described the College’s appeals process, explaining that it was managed by the HRMM Committee, and the Acting Principal Du Toit meted out a letter of the outcome of appeal on 01 August 2023, he further stated that Du Toit in her capacity as the Acting Principal all correspondence is meted out through her office, but she was not involved in the disciplinary enquiry including Advocate Sindane.

12. Re-examination: none
13. Second Witness: Mr. Nick Joubert, National Training Manager at IOPSA, testified under oath regarding a letter he sent to the College concerning the use of students for private work. Joubert stated that this action violated the Service Level Agreement (SLA) with IOPSA and compromised the students’ safety and welfare. He noted that students reported the incidents during feedback sessions where they stated they were being used for private work during college hours, which was against their agreement (Bundle B, page 71). The name of the Lecturer was intentionally not included in the letter, but they requested the college to investigate and asked students to submit affidavits.

14. Under cross examination: Joubert provided specifics about the students’ complaints, explaining that they were requested to perform private work at Mr. Cele’s instruction, this feedback session was held in July 2022 he was presented with this information. He stated that it was not the normal practice of the college to allow private work, He was not that the Supervisor was aware of these allegations, and he was also not aware that students were not provided with materials to work. He wrote the letter in September 2022.

15. Re-examination: none

16. Third Witness: Mr. T. Pillay, the Training Centre Supervisor, provided detailed testimony about Mr. Cele’s attendance and conduct. He presented evidence from the attendance registers, and WhatsApp messages. He stated that the college had issues of private work conducted without authorisations since 2021 when a German Manager reported the concerns and since March 2021 to May 2022 staff were continuously cautioned about private work and on 13 July 2022 the code of conduct was reiterated to staff members by HRM after allegations arose again in May 2022, but the students had left the institution. The allegations persisted in July 2022 and he approached Mr. Cele in the reception area and cautioned him about private work with students, the students enquired from IOPSA about their safety and conditions of them being subjected to private work and that led him to conduct the investigation, the Intern who collected evidence (portfolios) from students noted that the students could not submit their as they had left to conduct private work with Mr. Cele. 

He was contacted and alerted by Mr. Joubert from IOPSA regarding the private work on 18 and 19 July 2022 and requested a formal investigation. The students who had not submitted were summoned to his office where they stated that they went to perform private work with Mr. Cele on 18 and 19 July 2022. The students further furnished affidavits on what transpired. Three students worked two days and one student worked three days where they installed the bathroom set and tiling, and they further provided photos in this regard. He stated that the students at the college and the centre were covered by legal insurance including COIDA. He testified about the stringent safety precautions at the centre and that the centre boasts top four in the country in plumbing and that was attributed to their work relations with IOPSA. He emphasised on the importance of IOPSA in the college. 

He referred to Bundle A, page 30 with Mr. Cele’s utility vehicle with a sticker written Ndosi’s plumbing. He stated that the vehicle was used to transport students to perform private work. He referred to Bundle B page17 and 18 for affidavits as requested by Nick Joubert. The affidavit of one student went missing after two days of submission as his office is an open plan. They were pointed to the house by one student, and he provided photos of the work done in the bathroom and the address of the house as per Google maps image on page 21 to page 25 and 26. He testified that on 18 and 19 July 2022 the applicant indicated that he was present at work on 18 and 19 July 2022 as per the attendance register on Bundle B, page 39. He stated that if he requested for permission to be off site will be documented on comments or remarks and that broke the trust relationship, and he did not act in good faith. He stated that the charge of Disrespect and insolent behaviour was informed by the behaviour of the conduct of the applicant, he referenced page 27: WhatsApp screenshots, on 05 August 2022 they had a staff meeting. Mr. Cele’s class was behind, the work he had required a lot of administration to be completed, he stated that the holiday on 08 August 2022 was a normal working day as he was not a Lecturer, the holiday is enjoyed by Lecturers and academic staff under the DHET. He further averred that training centre staff do not automatic approval for the college holiday. He also stated that the leave is to be requested within seven days except in unforeseen circumstances. 

On 05 August 2022 it was his birthday and left at 14:30 after his birthday braai. He communicated the non-approval of leave with reasons on WhatsApp. The applicant all messages to the group and stated that he will abide by the college holiday. He stated that the posting of messages on the group and his blatant refusal to attend work after the non-approval of leave was disrespectful. He stated that on 01 August 2022 the applicant wanted to go and renew his license, it was approved but upon return he did not produce any evidence, he stated that he had informed the applicant that leave must not be taken on Mondays or Fridays or public holidays as the applicant was behind on work. He referenced Bundle B, page 45 and 46 the applicants’ license renewal dated 07 December 2022 and the attendance register for the same date where it does not indicate the applicant left the site or the centre. He averred that license renewals take approximately three to four hours. He presented page 3 of Bundle B for the leave form that was received n 02 August 2022 for 08 August 2022 but was not approved with reasons, but the applicant blatantly refused to present himself to work on 08 August 2022.

17. Under cross examination he stated that he did not instruct nor give permission to the applicant to go for his license renewal during the day, he stated it is not a favour, but the applicant should have filled in a leave form and if time off is granted, it will be documented. He stated that he only discovered at the disciplinary enquiry that the applicant renewed his license on 07 December 2022. He stated that he does not follow employees around the whole day hence he was not aware that the applicant left the centre that day. He stated that attendance registers are based on trust. He also stated that on 18 and 19 July 2024 he signed the attendance register confirming he was present on site because he was not aware that the applicant left with the students and when he did not see the applicant on the 18 and 19 July 2022 he assumed he may be in his vehicle as it was a norm for him to vanish at the centre. He was only informed by students after that they performed private work on the aforementioned dates. He vehemently denied giving permission to the applicant and being aware of any private work being done by the applicant. He was informed of suspicions but had no concrete evidence. 

He confirmed the workshop with Labour Relations on 13 July 2022 and the applicant was in attendance. He reiterated that he had no formal meetings with the applicant that were documented regarding private work hence he is not in possession of attendance registers. He stated that the leave was infact submitted on 02 August 2022 outside the seven-day timeframe and reasons for non-renewal were stated on the leave form and elaborated further on WhatsApp. He stated that the WhatsApp messages were contemptuous and disrespectful, but he was not upset. He did the applicants’ work on 07 August 2022; he was not settling any scores when he reported the misconduct. He stated that he addressed the suspicions with the applicant a week prior to the 18 and 19 July 2022. He stated that the college holiday on 08 August 2022 is a privilege granted to academic staff and Lecturers and stated they do not have the same privileges, working hours and terms of service. He further submitted that the rules are consistently applied by the applicant and the charges were warranted by the conduct.

18. Re-examination: none

19. Fourth Witness: Mr. Wimpie van der Merwe, Artisan and Development Manager at the College, provided testimony regarding his role in the college. Van der Merwe explained that the College had strict protocols for requesting and approving leave, he stated that Lecturers through DHET enjoy the college holidays as they have no annual leave but can take family and sick leave. He testified that Facilitators enjoy annual leave and not college holidays. He stated that they earn a higher salary then Lecturers who are on the same level to accommodate for the fact they are not privy entitled to college holidays, should a Facilitator need to be absent on a college holiday they must do so through the application of leave. He stated that the Supervisor was correct and well within his authority to decline leave. On page 37 and 38 contains leave applications which were not recommended for 01 August 2022 and 08 August 2022 and the applications never reached his office as they were declined by the Supervisor and on 08 August 2022 the applicant should have been at work as the leave was declined. He stated that Lecturers are entitled to the college holiday and do not have to fill in leave forms.

20. Under cross examination he testified that Facilitators are college employees, they work Monday to Friday 40hrs per week except for public holidays. He asserted that the applicant applied for leave and it was not recommended, for leave to be approved different factors are taken into consideration; workload, students attending training, previous leave taken, availability of leave days etc. But most importantly, he noted that signing a leave form means it must be subjected for approval before taking the leave. He further averred that in December there is usually a minimal number of students and leave is normally granted but still depending on workload, but on 08 August 2022 IOPSA students were scheduled for training at the centre. He also reiterated that all Artisan Department employees wishing to be absent on the college holiday fill in leave forms. He stated on Bundle B page 71 par 33.2.3 employment contract, for the granting of vacation or annual leave; working days shall mean Mondays to Fridays with the exclusion of public holidays. It does not stipulate college holidays; it states public holidays. He argued that students were scheduled for training on 08 August 2022 and students get paid for each day they are scheduled for training and without training they do not get any payment. He stated that the leave forms never reached his office he does not know the reason, but the leave was not recommended by the Supervisor, it was communicated to the applicant and the applicant was supposed to be at work on 08 August 2022, he further submitted that employees have a right to apply for leave but it is an application that will be subject to workload, availability and other factors prior recommendations. He averred that employees are informed to plan their work accordingly in a year.

21. Re-examination: He clarified that leave will be approved by him, the College Principal receives it after he has approved. The leave application forms only are only brought to his office for approval.

Applicant’s Submissions
22. Witness one: Mr. Xulu, Human Resources Service Conditions
23. He testified under oath that the college holidays are stipulated on the calendar which is issued by DHET nationally. He testified that at the back of the calendar it stipulates that the college holidays are for Lecturers, he stated that other employees wishing to be absent on the college holiday must apply for leave as per policy which stipulates five days for the application but accommodates situations of emergency and such emergencies must be communicated with the Supervisor. He also stated that the college holiday on 08 August 2022 is a privilege for Lecturers, but every other staff member applies for leave should they wish to enjoy it. Bundle A, page 37, He submitted that there are usually no comments if Supervisor recommended the leave, it goes to Human Resources if approved or not. He stated that the Manager of the unit should have signed and if not approved it must be sent to the Head of Department for a rescheduled date.

24. Under cross examination: The witness averred that he knows the applicant as a Plumbing Facilitator and should have applied for leave to be absent on the college holiday. Lecturers are entitled to it but not Facilitators. He read out the comments on Bundle B, page 37 leave form: “workload, annual leave exhausted, three days over”. He stated that once you exhaust your leave, you cannot take leave. There was no need for the leave form to be rescheduled for another date nor referred to the Head of Department for another date as the applicant had exhausted his annual leave.

25. Re-examination: none
26. Witness two: The deponent herein is Sandile Cele, the applicant. He began by asserting that the chairperson had no authority to preside over his matter. According to Cele, it should have been an employee who is superior or holds a higher position, as stipulated in bundle A, page 41, paragraph 4.6.3, (ii). He read this provision aloud during his testimony. Cele further stated that he did not know the person who presided over his hearing and noted that this individual failed to explain his qualifications for presiding over the matter. Instead, the presiding officer merely mentioned the company he represented Rian Kruger (Pty) Ltd.

27. When the applicant appealed, he was informed that the appeal meetings would be conducted. He was told that Du Toit and Advocate Sindane would hold the meeting. He expressed doubt about Du Toit, the Acting Principal, being appropriate to deliver a verdict. He was under the impression that the meeting would involve the committee in his absence, although he assumed his representative would be present. He believed that Du Toit was not supposed to be at the committee of appeal nor take the final decision. Only two individuals were present, while a third person was expected to interrogate the decision taken by the two.

28. The applicant referred to bundle A, page 7, stating that he was at work on the 18 and 19 July 2022 and claimed he could prove it. He mentioned that his supervisor possessed a college phone and should have used WhatsApp to contact him and inquire about his whereabouts. Cele pointed out that his supervisor did not check on him the following day. Cele accused Mr. Pillay of using his influence and harbouring hatred. According to bundle A, page 47, all the charges against the applicant stemmed from grievances previously lodged, which Mr. Pillay allegedly countered with charges. He claimed that all staff members had signed the grievance form.

29. Regarding bundle A, page 1, count 2, Cele was accused of fraudulently indicating his attendance on 18 and 19 July 2022. He maintained that he was at work and that his supervisor had signed off on his attendance as indicated in bundle B, page 39. He explained that on bundle B, page 40, the supervisor noted comments if they had not seen an employee on campus or had given them permission to be absent. On number 25, the supervisor noted there was no water but did not indicate that he was not at work. He insisted that his supervisor's signature on pages 18 and 19 confirmed his presence at work.

30. Addressing count 3, which accused him of disrespectful and insolent behaviour, the applicant denied being disrespectful. He mentioned that he was at home with his family, attending to family duties and participating in a traditional ceremony. He admitted to consuming alcohol but did not believe his behaviour was insolent. If it was perceived as such, he withdrew the behaviour as it was not intended to offend. He highlighted that the leave form was signed on 02 August 2022, contrary to the supervisors claim of signing on 05 August 2022. He asserted that both signatures were made on the 02 August 2022. He further mentioned that the supervisor never informed him that his leave for 08 August 2022 was not approved, a fact only disclosed after seven months. He also noted that he would take college holidays without filling in leave forms since starting at the college, believing it to be normal practice.

31. He reiterated that he was at work on the 18 and 19 July 2022 and accused his supervisor of orchestrating charges by asking students to write affidavits after he filed grievances on 11 August 2022. The students signed affidavits on 18 August 2022, which Cele believed was part of a plot to get him dismissed. He testified that he questioned his supervisor about forcing students to write affidavits under threat of not receiving a trade test if they did not comply. He stated that the supervisor gave no response when he confronted him. Further, he stated that he allowed the students to write the affidavits to avoid getting them into trouble because of him. He expressed disbelief at his dismissal, stating he had a clean disciplinary record until after filing the grievance on 11 August 2022.

32. The applicant acknowledged that fraudulent timekeeping is a dismissible offense if committed, as noted in bundle A, page 44. However, he pointed out that it took seven months to dismiss him. He referred to bundle A, pages 4 to 10, which contained pictures he claimed to have never seen. He stated that affidavit mentioned plumbing, but observed that the pictures seemed to show people tiling, which was not his specialty. He stated that there was no evidence to corroborate the pictures. The other two pictures depicted tiling and the installation of shower doors. He argued that proper plumbing could not be done in a day and a half. There was one picture showing plumbing, but he noted that the fourth student's affidavit, which was lost, was the one who provided the pictures. Cele did not believe the student wrote what the supervisor instructed.

33. He addressed bundle A, page 30, where it was alleged that his own van was parked at the college. He clarified that he uses a private car during the week for work and the van only on weekends. He explained that Esikhawini has one road and that students could easily identify the area. Cele mentioned that his private car was at his house, used for commuting during the week. He claimed the evidence against him was falsified. He also pointed out that the fourth student's affidavit, which was lost, should have been prepared again at the police station.

34. He emphasized that he had never worked on a college holiday since he was employed on a part-time basis until his permanency. The issue of college holidays was raised in their grievance, and Cele stated that he was unaware of any rule requiring a leave form for such holidays, as it was not the previous practice. He denied taking students away from work on 18 and 19 July 2022 as part of his duties for practical work sites on other dates. Mr. Cele concluded his evidence.

35. Under cross-examination, Mr. Sandile Cele affirmed that he is an honest person who does not tell lies. He reiterated that he was at work and believed he had sufficiently proved his presence. He firmly denied committing any fraudulent timekeeping, stating that he has never lied or engaged in such misconduct. He referred to bundle B, page 45, where the attendance register for 07 December 2022 indicated he was at work from 7 am, took lunch at 10 am, and returned at 10:30 am, before leaving work at 4 pm. He noted that on page 46, his license was issued on 7 December 2022 at 11:29 am, which he claimed was not fraudulent as his supervisor had given him permission, which he had requested from Mr. Pillay. He explained that his supervisor had instructed him to record the date and times as per the attendance register. Although he could not precisely recall when the license was presented to the respondent, he vaguely remembered the circumstances surrounding its issuance. The respondent suggested that the license was only produced during the disciplinary hearing, but could not confirm this recollection. He firmly denied ever taking learners anywhere and stated that the student had not told him what Mr. Pillay instructed them to write in the affidavit. 

He referenced Mr. Pillay's testimony, noting that he lodged a grievance against him, he lodged a grievance with Mr. Mgazi a Lecturer and union official from NEHAWU, but these grievances never reached management. He clarified that Mr. Mgazi had furnished Mr. Pillay with the grievances, which were not lodged in accordance with the respondent's grievance policy. Therefore, the respondent did not officially receive the grievance. Referring to bundle A, page 41, paragraph 4.6.3.3, (ii), He admitted he did not know how the chairperson was unsuitable. He argued that anyone could claim to work for Rian Kruger and potentially hold a clerical position or any other role. The applicant further stated that the respondent was free to interpret the disciplinary hearing chairperson's suitability as they wished. On bundle B, page 71, paragraph 33.2.3, which included public holidays, he asserted that public holidays he is entitled as per this clause included 08 August 2022, he mentioned that since 2014, his superior had informed him that he did not need to work on 8 August. He stressed that he could not force himself to go to work when explicitly told not to he cited Wimpie Britz, the Artisan and Development Manager, as the person who had told him over the years not to work on college holidays. It did not occur to him to present this version to Wimpie Britz because it was his first time being expected to work on a college holiday. He acknowledged his mistake in not presenting his version to Wimpy Brits, who had previously informed him that college holidays did not require leave forms.

36. On Bundle B, page 27, he admitted he did not deny the WhatsApp conversation between himself and his supervisor, Mr. Pillay. He acknowledged that on 07 August 2022, he was aware that he was supposed to be at work on 08 August 2022. However, due to a pre-planned traditional ceremony, he could not attend. Cele did not feel it was necessary to inform Mr. Pillay about the traditional ceremony, as he considered it a college holiday. Despite being warned by Mr. Pillay, Cele still could not go to work. Referring to the leave form on page 37 dated 02 August 2022 for 08 August 2022, he expressed uncertainty about when Mr. Pillay changed the policy, insisting on leave forms for college holidays. This leave form was not approved or granted. Similarly, on page 38, the leave form dated 01 August 2022 was also not recommended by the supervisor and remained incomplete, as Wimpie Brits was supposed to sign it. He discovered on 24 June 2024 that there was a discrepancy regarding its approval. He did not cross-examine this version due to lack of awareness, and he did not inform his representative about potential questions.

37. The applicant maintained that he did not act disrespectfully in his response and the supervisor did not show other prior conversations before the 12 p.m. response on WhatsApp. He took the matter seriously, though he could not remember conversations prior to 12 p.m., attributing this to possible intoxication at the time. He suggested that the respondent withheld certain chats that led to his response at 12:20 p.m. on WhatsApp, explaining that his phone reflected some chats that were later missing due to being charged seven months later. His representative did attempt to bring up the issue of missing chats with Mr. Pillay but lacked sufficient time.

38. Referring to Bundle B, page 72, paragraph 35.1, Cele acknowledged it was his duty to familiarize himself with the rules, procedures, and policies. He argued that the respondent had created a norm where employees were entitled to college holidays despite the employment contract rules. He also questioned the clarity of how the appeals committee proceeded. He noted on Bundle B, page 47, and referenced a letter from IOPSA. He felt his representative was not given adequate time to familiarize himself with the case, due to insufficient time provided by the former union.

39. The matter had begun on 29 April 2024 with a different union and proceeded on 20 and 21 May 2024 with the current Representative. He admitted that he did not present his version regarding the vehicle and students being transported for private work to Pillay, as his representative was not familiar with the case details. He firmly disagreed with the accusation that he transported students in his vehicle for private work. He pointed to Bundle B, pages 21 to 25, which contained pictures and testimonies furnished. Pillay, asserting that his representative did not challenge this evidence due to being in a different field (construction). He stated that the evidence regarding the pictures on pages 21 to 25 of Bundle B were fallacious. He mentioned having a poor relationship with Mr. Pillay, he claimed Mr. Pillay often disapproved their leave requests, discriminated against them, and frequently threatened dismissals. This version was not put to Mr. Pillay, and Cele did not address the affidavits or evidence from students, including the fourth student, as it had slipped his mind due to the prolonged nature of the matter and the seven-month duration of the charges.

40. Under re-examination, the applicant clarified several points regarding the evidence and his actions. He emphasized that the other evidence did not indicate the car was elsewhere, thus he felt no need to cross-examine the evidence about the car being at school. Cele pointed out that no evidence was produced to show the car was used elsewhere.

41. Regarding the fourth learner who took pictures of people working, as mentioned in Mr. Pillay’s testimonies, he referred to Bundle B, page 40, highlighting the attendance register. He noted that on par 24 to 31, the supervisor made comments when they could not see an employee or when an employee was dismissed early. On page 45, he reiterated that he had requested and received permission from Mr. Pillay, which was granted privately. He added that Mr. Pillay would have commented if there was an issue, but he did not, reflecting their private agreement.

42. He maintained that he was at work on the 18 and 19 July, as evidenced by page 39, which was signed by both him and the supervisor. The supervisor did not mark him as absent or missing in action for those two days. He pointed out that the respondent failed to provide evidence that he was not at work on those dates. He referred to page 40, indicating on 08 August 2022 was a college holiday, as designated by the Department of Higher Education and Training. He asserted that apart from the testimony of Wimpie Britz, the respondent produced no other evidence showing he did not qualify for the college holiday. Wimpie testified that a leave form must be signed to enjoy the college holiday, he stated that he filled out the leave form, but it was not approved or completed entirely by the manager. He clarified that the supervisor’s role is not to approve leave; it is the duty of the manager. Regarding the WhatsApp chat, he insisted he was not disrespectful and maintained that on 08 August was a holiday that applied to him as well. He referenced Bundle A, page 41, paragraph 4.6.3, which he read out, asserting that the chairperson was unsuitable because his qualifications were not presented. The chairperson merely introduced his name and the company he represented. The employer did not provide evidence that Advocate Sindane, and the Acting Principal Du Toit were members of the appeals committee, he argued it was unfair for Du Toit to sign the appeals outcome as she was part of the committee. The applicant also mentioned that on Bundle B, page 27, the WhatsApp chat did not contain any derogatory terms. He believed it was not disrespectful to express his views about the college holiday. He quoted no policies or procedures but pointed out that Wimpie also took the holiday by signing the leave form. He emphasized that there is no policy from the respondent stating he is not allowed to take the college holiday. Finally, he disputed the allegation that he took students out of the college, maintaining that this accusation was unfounded.
CLOSING ARGUMENTS

43. Closing arguments were considered
ANALYSIS OF THE EVIDENCE AND ARGUMENT
44. The applicant referred a dismissal dispute in terms of section 191(5)(a)(iii) of the Labour Relations Act 66 of 1995. The respondent bears the onus of proving that the dismissal was for a fair reason and implemented in accordance with a fair procedure.

45. Section 188 of the LRA states that a dismissal is unfair if the employer fails to prove:
- That the reason for dismissal was for a fair reason
- Related to the employee’s conduct or capacity or
- Based on the employer’s operational requirements and
- That the dismissal was affected in accordance with a fair procedure

46. Charges Against the Applicant:
Count 1: Improper Conduct: It is alleged that on 18 and 19 July 2022, without the authority of the employer, during working hours, you transported students using your personal vehicle to a household in Esikhawini, J section, to perform private work. By doing so, you disregarded safety rules, risking the students' safety. Additionally, you jeopardized the relationship between the College and IOPSA, who believed the students were receiving training at the College and that the work-based learning had concluded. Consequently, you contravened the employer's disciplinary code and procedures.

47. Count 2: Fraudulent Timekeeping: It is alleged that on 18 and 19 July 2022, you deliberately, incorrectly, and fraudulently recorded your working hours. This act constitutes gross dishonesty and untrustworthiness, representing a serious breach of your employment contract with the employer.

48. Count 3: Disrespectful and Insolent Behaviour: It is alleged that on 7 August 2022, during a WhatsApp conversation with your immediate supervisor, you demonstrated disrespectful and insolent behaviour. This conduct contravened the employer's code of conduct.

49. Count 4: Absence from Work Without Prior Approval: It is alleged that on 1 and 8 August 2022, you were absent from work without obtaining prior approval from the employer. This unauthorized absence constitutes a violation of the employer's code of conduct.

50. The primary issue to be determined is whether the dismissal of Mr. Cele was substantively and procedurally fair. The evidence presented by both parties was extensive, and each party sought to establish the credibility of their respective positions.

51. Mr. Sibusiso Benedict Mthethwa testified about the College’s reliance on an external consultant for disciplinary proceedings, asserting that this did not prejudice the process. He cited the College’s disciplinary code, which allows the appointment of suitable persons to preside over such matters (Bundle A, page 41). He further referenced Bundle B, explaining the College’s code and policies relevant to staff disciplinary procedures and appeals. The appointment of an external consultant, Rian Kruger (Pty) Ltd, is justified by the College’s lack of internal resources. The College’s disciplinary code supports the use of external presiding officers. Hence, Mthethwa’s testimony about the legitimacy of the process is accepted. In the matter of Public Servants Association of SA and Others v Minister of Justice and Constitutional Development and Others (2010), it was held that appointing external presiding officers is acceptable if justified by the organization's internal resources and capabilities. This supports the respondent's approach.

52. He further testified that the college has an established appeals process which consists of Du Toit and Advocate Sindane and provided evidence of the procedure followed through emails. He stated that any communication meted out by the college must be issued through the office of Du Toit in her capacity as the Acting Principal of the college. He further furnished two previous appeals that were subjected to the same process. The appeals process described appears consistent. The applicant did not furnish any proof of inconsistency as he claimed that his Representative ought to have attended the meeting.

53. Mr. Joubert testified about the students’ involvement in private work, which violated the SLA with IOPSA. He noted that this compromised the students' welfare and provided evidence of students’ affidavits corroborating the claims (Bundle B, page 71) Joubert's testimony is credible and supported by documented evidence. The students’ affidavits and the letter from IOPSA corroborated what he was informed by the students in July feedback meeting regarding the claims of unauthorized private work. The respondent's failure to establish whether the applicant was paid for the private work does not negate the breach of policy. In Independent Municipal and Allied Trade Union obo Henn v Theewaterskloof Municipality (2012), it was held that even in the absence of financial gain, unauthorized private work constitutes misconduct if it violates organizational policies. This applies here, affirming the validity of Joubert's testimony. The allegations stemmed from 18 and 19 July 2022 after the workshop that was held by the respondent on 13 July 2022.

54. Mr. T. Pillay provided detailed evidence of the applicant’s alleged misconduct, including fraudulent timekeeping, transporting students for private work, and disrespectful behaviour. He corroborated his testimony with attendance records, WhatsApp messages, and photographs of the work done (Bundle B, pages 21-27). Pillay’s testimony is consistent and supported by documentary evidence. The attendance records and affidavits from students corroborate the claim that the applicant engaged in private work during college hours. However, the loss of one student’s affidavit introduces some doubt. Nevertheless, the weight of evidence supports the conclusion that the applicant engaged in the misconduct alleged. In Shoprite Checkers (Pty) Ltd v CCMA and Others (2008) 29 ILJ 2581 (LAC), it was affirmed that documentary evidence such as attendance records and corroborating testimonies from multiple sources can sufficiently establish misconduct. This principle applies to Pillay's evidence, reinforcing its credibility. The WhatsApp messages were harsh and blatantly insubordinate, the disrespectful conduct is witnessed through several messages exchanged posted on the work group by the applicant which was tantamount to disrespectful behaviour which was posted for all staff members to witness.

55. Mr. Wimpie van der Merwe testified about the College’s leave policies, emphasizing the distinct treatment of lecturers and facilitators. He confirmed that the applicant’s leave requests were handled according to policy, and the denial of leave on 08 August 2022 was justified due to workload considerations. Van der Merwe’s testimony aligns with the College’s documented leave policies. His explanation of the distinction between lecturers and facilitators’ leave entitlements clarifies the procedural correctness in denying the applicant’s leave. This testimony is accepted as credible and consistent with policy. In Mngomezulu v National Energy Regulator of South Africa (2015) 36 ILJ 2033 (LC), it was held that employers have the discretion to approve or deny leave requests based on operational requirements, provided the process is transparent and consistent with policy. This case supports Van der Merwe’s position.

56. Mr. Xulu, the applicants’ witness confirmed the College’s leave policies, distinguishing between lecturers and facilitators. He corroborated that facilitators must apply for leave to be absent on college holidays. The testimony supports the College’s procedural correctness in handling the applicant’s leave requests. His statements are consistent with the policies referenced by Van der Merwe and provide additional corroboration for the respondent’s case.

57. Mr. Sandile Cele (Applicant) disputed the authority of the disciplinary hearing chairperson and questioned the legitimacy of the appeals process. He denied the allegations of fraudulent timekeeping, private work, and disrespectful behaviour. He claimed his supervisor's influence and bias motivated the charges against him. Cele’s claims about the chairperson’s authority are unsubstantiated, as the College’s policies allow the appointment of external consultants. His denial of the allegations is contradicted by substantial evidence, including affidavits, attendance records, and testimonies from multiple witnesses. His accusation of bias lacks corroborating evidence and appears speculative. In Ngubane v National Intelligence Agency (2013), it was emphasized that allegations of bias must be supported by clear and convincing evidence. Cele’s claims lack such evidence, weakening his defence.

58. The respondent has provided a coherent and well-supported case through multiple witnesses and documentary evidence. The allegations against the applicant, including fraudulent timekeeping, unauthorized private work, and disrespectful behaviour, are substantiated by consistent testimonies and corroborating evidence. The procedural correctness of the disciplinary process, including the appointment of the chairperson and the handling of appeals, aligns with established policies and relevant case law.

59. The applicant’s failure to cross-examine critical aspects of the respondent’s evidence, such as the allegations of fraudulent timekeeping and unauthorized private work, weakens his credibility. His explanation of forgetting and his representative not being informed does not sufficiently justify this omission. The responsibility lies with both the applicant and his representative to ensure that all pertinent evidence and counterclaims are presented and scrutinized during the hearing. In Hoffmann v South African Airways (2000) 21 ILJ 2357 (CC), the court emphasized the importance of cross-examination in challenging the opposing party’s evidence and presenting a counter-narrative. The failure to cross-examine crucial evidence can be interpreted as an acceptance of that evidence, weakening the credibility of the party that fails to do so students’ Affidavits and Coercion Claims. The lack of corroborating evidence for the applicant’s claim that students were coerced into writing affidavits against him is a critical flaw. In the absence of such corroboration, this claim appears speculative and self-serving, aimed at discrediting the affidavits that implicate him in unauthorized activities. In Eskom Holdings SOC Ltd v National Union of Mineworkers obo Kyaya and Others [2020] ZALAC 22, the Labour Appeal Court held that allegations of coercion must be supported by concrete evidence. Unsupported claims of coercion cannot be accepted without substantial proof. This principle applies here, where the applicant’s claims lack corroborative evidence.

60. Permission for License Renewal on 07 December 2022. The supervisor’s consistent denial and the lack of any documented evidence supporting the applicant’s claim of permission granted undermine the applicant’s credibility. The onus was on the applicant to provide evidence of such permission, which he failed to do. Nonetheless, he was not charged for 07 December 2022. In National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 386 (LC), the court held that the burden of proof lies with the party asserting a fact. In this case, the applicant’s failure to provide documentary evidence of permission granted by the supervisor weakens his credibility.

61. The applicant’s claim about unrecorded grievances is problematic. Proper procedure requires grievances to be formally lodged and documented. The failure to do so casts doubt on the seriousness of these grievances. This inconsistency further detracts from the applicant’s credibility. In Public Servants Association of SA and Others v Minister of Justice and Constitutional Development and Others (2010) 31 ILJ 2436 (GNP), the court emphasized the importance of following formal grievance procedures to ensure that grievances are properly recorded and addressed. The applicant’s failure to lodge grievances formally undermines his claim.

62. Intoxication and Missing WhatsApp Messages: The claim about missing WhatsApp messages is speculative and unsubstantiated. The applicant’s inability to provide clear evidence or recollect the contents of these messages weakens his credibility and suggests an attempt to deflect responsibility for his behaviour. In Food and Allied Workers Union v Pieman’s Pantry (Pty) Ltd (2007) 28 ILJ 1658 (LAC), the court held that speculative and unsubstantiated claims cannot be accepted as credible evidence. The absence of clear and convincing proof weakens the party’s position, as seen in the applicant’s case.

63. Leave Entitlement and College Holiday: The applicant’s interpretation of his leave entitlement is inconsistent with the testimony and policies outlined by the respondent. His failure to present this version to Britz and the contradiction between his claim and the documented leave policies further weaken his argument. The policy clearly distinguishes between public holidays and college holidays, and the applicant’s contradictions between his claim and the documented leave policies further weaken his argument. The policy clearly distinguishes between public holidays and college holidays, and the applicant’s reliance on informal assurances rather than formal policy undermines his credibility. In Mngomezulu v National Energy Regulator of South Africa (2015) 36 ILJ 2033 (LC), the court ruled that leave policies must be interpreted according to the organization’s formal policies and procedures. Informal assurances cannot override documented policies, which apply to the applicant’s case.

64. The supervisor’s explanation that he signed the attendance register based on the assumption that the applicant was on site, not knowing he had left, is plausible. The applicant’s reliance on this signature without acknowledging the possibility of being off-site undermines his credibility. It suggests an attempt to manipulate the situation to his advantage. In Shoprite Checkers (Pty) Ltd v CCMA and Others (2008) 29 ILJ 2581 (LAC), the court held that attendance records must be accurate and reliable. The reliance on a supervisor’s signature without proper verification can undermine the credibility of the records and the person relying on them.

65. The applicants’ own witness, Mr. Xulu testified that the applicant was not entitled to the college holiday as a Plumbing Facilitator and that he had no entitlement to any leave as he had exhausted his leave as per the supervisors’ comments on the leave form. The applicant alluded that he and two other employees were discriminated against and threatened by the supervisor but the applicant did not call the other two employees that were subjected to this conduct to corroborate the allegations, nor did he furnish any documentary evidence to substantiate the allegations. The applicant’s submissions are rejected due to lack of supporting evidence and inconsistencies and relied on bare denials.

66. Mr Joubert stated that he requested a formal investigation and affidavits from students which further nullify the claims of the applicant that Mr. Pillay orchestrated the claims and coerced the students into signing affidavits.

67. The applicant appropriately submitted a leave form for 08 August 2022, it is trite law that leave forms are subjected to approval. The argument that the college holiday is an entitlement upon submitting a leave form whether approved or not, this interpretation of leave application is flawed. Under cross examination, the applicant conceded that he is entitled to public holidays but argued that public holidays include college holidays, this interpretation is erroneous. The applicant further argued that he was not informed of the leave application status for 08 August 2022 until seven months later but conceded under cross examination that he became aware on 07 August 2022. The applicant contradicted himself.

68. The submissions and evidence presented by the respondent are accepted as credible and sufficient to substantiate the charges against the applicant. I find that the dismissal of the applicant was procedurally and substantively fair.

AWARD

69. The dismissal of the applicant, Sandile Cele by the respondent, Department of Higher Education and Training (DHET) was procedurally and substantively fair.
70. The applicant is not entitled to any relief.

ELRC Arbitrator: T. Mtolo