ELRC535-23/24GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MALUTI TVET COLLEGE (BETHELEHEM CAMPUS)

Case No ELRC 313-22/23FS

In the matter between

PSA obo DUDU PATRICK MADONSELA APPLICANT

and

DEPT. OF HIGHER EDUCATION & TRAINING (MALUTI TVET COLLEGE) RESPONDENT

ARBITRATOR: Monde Boyce

HEARD: 24 April 2024, 03 July 2024 and 29, 30 & 31 July 2024

CLOSING ARGUMENTS: 08 August 2024

DATE OF AWARD: 19 August 2024

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC set the matter down for arbitration on 24 April 2024. The matter was part heard and the ELRC subsequently scheduled the matter for a hearing on 03 and 04 July 2024 and 29, 30 and 31 July 2024 at the Maluti TVET College’s Bethlehem campus. The applicant was represented by Mr Nicco Cloete, an official from the trade union PSA while Mr Mpe Ngcosane appeared for the respondent. Parties requested to submit written closing arguments, a request I duly granted, and the parties submitted their closing arguments on 07 and 08 August 2024.

[2] Both parties submitted bundles of documents. The proceedings were digitally recorded, and typed notes were taken. An interpreter was requested and was present and provided interpretation for one of the respondent’s witnesses and the applicant. Parties had concluded pre-arb minutes that set out issues of common cause and issues that would be placed in dispute, and both parties duly signed the minutes.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the applicant’s dismissal was procedurally and substantively unfair and am required to grant the appropriate remedy in terms of Section 193 of the Labour Relations Act 66 of 1995 as amended (the LRA) should I find the dismissal to be unfair.

THE BACKGROUND TO THE DISPUTE:

[4] The applicant was employed as the Post Level 1 Lecturer and gave lecturers at the Itemoheleng campus in Bethlehem. He had been in the respondent’s employ since 23 January 2005 and was dismissed on 14 July 2022 following a disciplinary hearing convened to for purposes of hearing evidence related to a charge of gross dishonesty where the applicant was said to have leaked a Level 4 Materials subject assessment paper. Unhappy with the sanction of dismissal, the applicant referred an unfair dismissal dispute to the Council for conciliation and, when the dispute could not be resolved at conciliation, referred the dispute for arbitration. He seeks retrospective reinstatement as a relief.

SURVEY OF EVIDENCE:

Employer’s Evidence

[5] Mr Khopiso Daniel Lehlakola was called as the respondent’s first witness. He works as the campus manager at Itemoheleng Campus. The applicant worked as a lecturer in the Civil Engineering section at his campus. When he took over running the campus, he inherited a dysfunctional campus. There were problems with lack of discipline at the campus. He experienced a very hostile reaction from staff at the campus. He was not properly welcomed, and lecturers were not reporting for duty on time and there was total lack of discipline.

[6] The college uses Collective Agreement-ELRC Further Education and Training Colleges Bargaining Unit’s (FETCBU) Resolution 1 of 2013 whose scope covers the lecturers while support staff refer their disputes to the GPSSBC. As such lecturers refer their disputes to the ELRC. The lecturing staff have their own disciplinary code and procedure which is different from the support staff. The applicant was employed as the lecturer post level 1 and lecturers are covered by Annexure B of the FETCBU agreement as shown on page 25 of the respondent’s bundle. The trade unions NAPTOSA, PSA and SAOU have a working together agreement with CTU of Autonomous Teachers’ Unions in terms of Clause 1(a) (b) (c) and 2 of the agreement. The CTU-ATU agreement includes PSA as a signatory to the agreement as per the signature by Mr Hendricks who represented the PSA. The applicant was charged according to the Annexure C of the ELRC Resolution 1 of 2013. The respondent was thus correct in using Resolution 1 of 2013 to charge the applicant.

[7] The charge preferred against the applicant was that of alleged gross dishonesty where the applicant leaked or shared assessment papers with students since the beginning of 2019. During October 2019, he (Mr Lehlakola ) was approached by a student, Mr Tebogo Mokoena who was the Student Representative Council (SRC) president and doing Level 4 Materials subject, who complained that students in the class the applicant was lecturing were not being taught but that when they (students) sat down for assessments, the applicant would share assessment tasks with students in the students’ WhatsApp group. Mr Mokoena further reported to him that the assessment information would be shared with certain students in the WhatsApp group who would in turn share the information with other students. Mr Mokoena asked him to investigate the matter. He told Mr Mokoena that he wanted proof before he could investigate the claim and that in the absence of such proof, he would be seen to be engaging on a witch hunt which would have the effect of affecting his relationship with lecturers. Mr Mokoena sent him a WhatsApp message on the evening of 07 October 2019 at 18h50 containing extract of the exam paper that was to be written on 08 October 2019 as shown on page 09 and 10 of the respondent’s bundle.

[8] When the message was sent to him, he did not see it on 07 October 2019 and only saw it on 08 October 2019 when he opened his WhatsApp message and on being alerted by Mr Mokoena that he had sent him a WhatsApp message. The screen shot sent to him showed the face of the applicant and included the exam paper that was to be written on 08 October 2019. He forwarded the message to the Labour Relations Practitioner, Mr Ngcosane. He spoke to Mr Mokoena after the assessment was written and picked up that the examination paper was the same as the paper sent to him by Mr Mokoena after comparing both papers. Mr Mokoena also confirmed that the same assessment was the one he had received the previous night. He did not immediately approach the applicant but first spoke to the Head of Department (HOD). He later confronted the applicant who denied having given the paper to the students and stated that he only shared the exam scope with the students. He did not deny that it was his face on the WhatsApp screen shot sent to him by Mr Mokoena. The applicant told him that he was not aware that students were taking his photo when he shared the scope of the exam with them.

[9] He has been a lecturer for 24 years, and there is nothing wrong in sharing an examination scope with students. When a lecturer shares the scope, students are called and informed of what the exam format will be including the chapters that students might have to look at, but the questions themselves are not shared with the students. The students would not have had access to the paper if the applicant did not share it with them. The paper could not have been stolen by the students. The college views sharing or leaking of exam papers with students in a very serious light because such conduct compromises the tests which would not be a reflection of what students know. He believed there was enough evidence to confirm that the applicant shared the exam paper with the students. The sanction of dismissal was warranted based on the nature of the misconduct. Assessments must be fair, and students who had access to the paper were unfairly advantaged.

[10] The second witness called by the respondent was Mr Teboho Shaun Mokoena. He testified that he was a student at the Maluti TVET College between 2017 and 2020 and studied Civil Engineering Masonry. The applicant was his lecturer and taught him Construction Supervision and Materials at level 4. At the time he did his studies he was the Student Representative Council (SRC) chairperson at the Itemoheleng Campus and held this position until 2019. The applicant would attend classes sometimes and sometimes he would not teach them. He did report the applicant’s conduct to Mr Lehlakola. Mr Lehlakola’s response was that he would investigate the matter. He is familiar with the document contained on page 09 and 10 of the respondent’s bundle which is the Materials exam paper they were supposed to write on 08 October 2019. He got hold of the exam paper from a students’ WhatsApp group and someone had sent it via the students’ WhatsApp group. He would not know if the applicant was on the group because the group would reflect only the numbers and not the names of the participants.

[11] It was not the first time that they, as students received exam papers before writing their exams, and those exam papers were also for other subjects. He informed Mr Lehlakula that there was a tendency for students to receive exam papers before taking the tests, and Mr Lehlakula’s response was that he was going to investigate but needed evidence. On receipt of the exam paper, he sent the exam paper to Mr Lehlakola via WhatsApp at 18h50 on 07 October 2019. He and other students wrote the test the following day as it appeared on the exam paper he received via WhatsApp. After he sent the information, Mr Lehlakola did not respond and said nothing on 07 October 2019. After writing the exam on 08 October 2019, he went to Mr Lehlakola’s office and enquired about whether he had seen the message he sent him the previous day. Mr Lehlakola then checked his phone and thereafter told him that he was going to deal with the issue. He thereafter left Mr Lehlakola’s office. Other students had obtained the exam papers from the applicant because the picture on page 10 of the respondent’s bundle showed the applicant holding up the paper.

[12] He had had instances where the lecturers gave scope of the exams. In those instances, the lecturers would only give the topics that the exam was to be written on but not the full exam paper. The exam paper on page 09 and 10 was a full paper and not a scope as the scope of an exam highlights topics that would be covered and not the actual questions for the exam to be written.

Employee’s Evidence

[13] The applicant testified that he started working for the college in 2005 as a Civil Engineering Lecturer and was teaching nated courses. In the year 2015, the lecturers were migrated to the Department of Higher Education and Training. He was still a lecturer when the lecturing staff were migrated. It is not true that he was not teaching and gave exam papers to his students. He denied the allegations because if the allegations were true, there would have been a formal report to that effect. There are block monitors that students report to where a lecturer is alleged not to teach. There is also a student support office where students can report such allegations to that office. The senior lecturer, the head of department and the campus manager would have received such reports.

[14] Itemoheleng was the best performing campus, and he denied allegations that the campus was the worst performing campus as stated by Mr Lehlakola. There was no investigation conducted by Mr Lehlakola about his failing to teach the class, and Mr Lehlakola never confronted him about the allegations. When Mr Lehlakola, Mr Mosala and the HOD were in his class, they asked the students about the allegations and there were students who denied the allegations. He further disputed that he gave any exam papers to students who subsequently posted the papers on students WhatsApp group. He taught six different groups of students that were over a hundred. If there was substance to such allegations, the name of the student who posted the paper would be given. Before the students actually wrote the paper, there were five officials that the paper went through including the person who printed the exam paper.

[15] Page 10 of the respondent’s bundle contains a picture of himself standing at the door of his office holding a question paper and giving a scope to the students. He was not aware that anyone was taking a photo of him until 27 November 2019 when he was suspended. He had the question paper with him because he was giving the scope to the students. When setting question papers, lecturers do not use textbooks only but use different materials including the internet to set up the exam paper. He was familiarising himself with the learning outcomes that students had to focus on for the test. At the time he had the paper with him, students were standing outside and about five (05) metres from where he was standing. He did not give the exam paper to the students because he did not allow students to access his office and prevented them from entering the office because there were other materials and other assessment papers that would get lost if he allowed the students in. He disputed that he was reading out the exam paper to students but was giving scope of the exam that was to be written.

[16] He did not know the photo shown on page 09 of the respondent’s bundle. The version to the effect that he was the one standing and holding the exam paper on paper on page 09 was not true because the pictures are different. When the two photos contained on page 09 and 10 of the respondent’s bundle are compared, the burglar doors are not the same. The watermark on page 10, which was the paper he used to give scope to the students, was not the same as the one appearing on page 09. The watermark on page 10 was positioned towards the bottom of the page while the watermark on page 09 was positioned almost in the middle of the page. The photo on page 09 and the one on page 10 were not taken at the same place and at the same time. The question paper on page 09 was not the one he was holding on page 10.

[17] Mr Teboho Mokoena had an issue with his NFSAS allowance, and he came to be aware of the issue Mr Mokoena had with his NFSAS allowance during the disciplinary hearing that was held after his suspension. Before then, he was not aware of the issue Mr Mokoena had with the NFSAS allowance. The explanation given by Mr Mokoena was that he had two classes that he had to attend simultaneously. Lecturers are not allowed to have students sign on the class attendance register when they did not attend classes. Some students came to explain their situation, and he allowed them to sign the attendance register, but Mr Mokoena never approached him to make such a request.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[18] Dismissal in the present case was not in dispute. As such the respondent bore the onus to prove fairness of the dismissal. The charge preferred against the applicant, and which charge resulted in the applicant’s dismissal related to the applicant’s having leaked an exam paper that his students were to write. Evidence led by both parties centred around this charge.

Procedural Fairness

[19] Regarding procedural fairness, the issue parties asked me to decide was whether the applicant was correctly charged in terms of Collective Agreement ELRC FETCBU Resolution 1 of 2013 and whether he should have been charged in terms of HR Circular 13 of 2015. Having taken into account evidence led and arguments advanced by both parties as to procedure, I am not persuaded that the respondent erred as to procedure. The issue raised on procedure was on whether the correct collective agreement was used to charge the applicant with the applicant contending that an incorrect collective agreement was used to discipline him. I do not deem it necessary to repeat the submissions made as to procedure as same have been filed with the ELRC. I hasten to mention that at issue before me is not a question of interpretation of any relevant collective agreements but rather that of answering the question of alleged procedural unfairness in relation to whether the correct collective agreement was used in charging the applicant.

[20] I should mention that the ELRC is a sectoral council for the education sector wherein the educators (in Basic Education) and lecturers in the TVET sector belong. On the basis of this understanding, the applicant referred his dispute not to any other bargaining council but the ELRC for resolution. It would, in any event, be absurd for the respondent to use any other collective agreement to discipline the applicant but have the applicant’s dispute at arbitration dealt with in terms of the very FETCBU Resolution 1 of 2013 that the applicant takes issue with. Disciplinary hearings involving lecturers at TVET colleges are dealt with in terms of the FETCBU Resolution 1 of 2013 and disputes flowing from such disciplinary hearings are correctly referred to the ELRC in terms of this resolution.

[21] To the extent that there appeared to be confusion about the ELRC’s jurisdiction regarding TVET Colleges matters involving lecturers, the General Secretary of the Council (ELRC) provided clarity as early as 14 January 2016 where, referring to the PSCBC decision on the issue of jurisdiction, it was confirmed that the ELRC has jurisdiction to conciliate and arbitrate disputes of TVET lecturers. It thus follows that irrespective of the collective agreement used in charging a TVET College lecturer, any recourse sought and where a dispute involving a lecturer arises, such a dispute would land before the ELRC for determination as the sectoral bargaining council that has jurisdiction, and this in keeping with the Further Education and Training Colleges Bargaining Unit (FETCBU) within the ELRC. FETCBU Collective Agreement 1 of 2013, which covers lecturers in the TVET sector finds application in disciplinary matters involving TVET lecturers. Thus, the argument by the applicant to the contrary did not make sense. But even if I were to find that it did, I still would have to be pointed to prejudice that the applicant suffered as a consequence. On being suspended and thereafter subjected to a disciplinary hearing, the applicant had a fair opportunity to answer to the allegations levelled against him. No evidence was led as to prejudice the applicant suffered, a trite requirement for procedural unfairness. The applicant did not take his argument on alleged procedural unfairness any further than merely alleging that an incorrect collective agreement was used in disciplining him. On his being dissatisfied with the sanction, he referred his dispute to the ELRC as he should.

[22] The earlier judgment of Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation Mediation and Arbitration and Others asserts the principle that disciplinary hearings do not necessarily have to follow a strict procedure. Among other things, the court, in the above cited case held that:

“…The Act itself is silent on the content of any right to procedural fairness, it simply requires that an employer establish that a dismissal was effected in accordance with a fair procedure.”

“The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness.” They recognise that for workers, true justice lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions are found wanting. For employers, this right of resort to expeditious and independent arbitration was intended not only to promote rational decision making about workplace discipline, it was also an acknowledgement that the elaborate procedural requirements that had been developed prior to the new Act were inefficient and inappropriate, and that if a dismissal for misconduct was disputed, arbitration was the primary forum for determination of the dispute by the application of a more formal process. (My emphasis and underlining)

[23] It is thus my finding that the applicant’s claim as to procedural unfairness should fail.

Substantive Fairness

[24] Having heard evidence, it is my finding, on a balance of probabilities, that the applicant did share the exam paper on 07 October 2019 and which exam paper was to be written the following day on 08 October 2019. Evidence led showed two sets of photographs, one contained on page 09 of the respondent’s bundle showing the exam paper that was to be written on 08 October 2019 and the photograph on page 10 showing what appeared to be an extract of the very paper but did not contain exam questions. Both pages were sent via WhatsApp by Mr Mokoena to Mr Lehlakola at 18h50 on 07 October 2019. Mr Mokoena confirmed as much when he gave his evidence, and Mr Lehlakola confirmed receipt of the very paper via WhatsApp the following day of 08 October 2019 during his testimony.

[25] The applicant however only confirmed knowledge of the paper appearing on page 10 of the respondent’s bundle. In my considered view, the applicant conveniently confirmed knowledge of the paper contained on page 10 because it showed him holding the paper which does not contain exam questions like page 09 and denied knowledge of the paper contained on page 09 because it clearly showed the exam questions for the very exam that was to be written on 08 October 2019. I find the applicant to have done so because if he confirmed knowledge of the paper contained on page 09, he would effectively be implicating himself as this paper was the very paper that was written by his students on 08 October 2019. Careful gleaning of the photograph contained on page 09 shows that the picture was taken at the same area as the photograph on page 10 with the only difference being that the picture frame on page 10 is more visible and actually shows the applicant than the picture frame on page 09 shows. While the applicant denied having shared the exam paper on pager 09, he failed to explain how the very same paper that was to be written on 08 October 2019, found its way to his students’ WhatsApp group. The only logical conclusion I reach is that, contrary to his assertion that he was sharing the exam scope with his students, he was actually sharing the exam paper that was to be written the following day.

[26] The conclusion in [25] above is not far-fetched if one has regard to the sequence of events as per the respondent’s witnesses’ testimony. What transpired is in keeping with the version given by Mr Mokoena to the effect that he had reported to the campus manager, Mr Lehlakola, that the applicant was not teaching but would share exam papers with students during exam time and the testimony by Mr Lehlakola of the state he found the Itemoheleng campus in where there was lack of discipline with lecturers not reporting for work on time. The photos on pages 09 and 10 of the respondent’s bundle are the proof that Mr Mokoena obtained as per the request by Mr Lehlakola who had earlier told him that he could not act on his claims without proof. As it turned out, both photographs contained on pages 09 and 10 are what Mr Mokoena sent Mr Lehlakola. The applicant did not dispute that both photographs were sent at almost the same time (18h50) and on the same date (07 October 2019). All he disputed was knowledge of the photograph on page 09 containing exam questions, a denial that I do not find to make sense given that the very photographs he acknowledged and confirmed knowledge of was sent from the same person, at the same time and on the same date.

[27] During cross examination, Mr Mokoena was adamant that the photos shown on pages 09 and 10 are the exam questions that was to be written on 08 October 2019 and which was shared via the students WhatsApp group. While the applicant stated that he was not the only one who had access to the exam paper that was to be written on 08 October 2019, he failed to point to any other individual who may have leaked the paper and their motive for doing so. As things stood, he was the only one who would have benefited because his students would have passed the exam that he himself set.

[28] The applicant disputed that he shared the exam paper with the students and stated that he only shared the exam scope and did so a week before the exam was to be written on 08 October 2019. But Mr Mokoena testified that the paper was shared on the students’ WhatsApp group on 07 October 2019. The applicant did not put to Mr Mokoena that he shared the exam scope a week before the exam was to be written, in which case Mr Mokoena would have had the benefit of either confirming or disputing his version.


[29] The applicant also needed to provide a cogent explanation on why individuals in the persons of Mr Mokoena and Mr Lehlakola would single him out as the person who shared the exam paper with the students. I cannot find Mr Mokoena and Mr Lehlakola to have had any reason to falsely implicate him. The applicant’s attempt at explaining why Mr Mokoena would have implicated him did not hold water. His (applicant) representative put to Mr Mokoena under cross examination that Mr Mokoena had a bone to pick with the applicant following Mr Mokoena’s challenge with non-payment of his (Mr Mokoena) NFSAS allowance. But this attempt fell flat because the applicant, on his own version, only became aware of Mr Mokoena’s NFSAS allowance issue during his disciplinary hearing. On the applicant’s own version, while other students who faced a similar predicament as Mr Mokoena approached him for assistance, Mr Mokoena was not one of the students that approached him seeking assistance with attendance registers that had to be submitted in support of the claims for the NFSAS allowance. Thus, the issue of the non-payment of Mr Mokoena’s NFSAS allowance could not have caused him to raise a complaint of the applicant’s leaking exam papers with Mr Lehlakola. I thus cannot find Mr Mokoena to have had any reason to falsely implicate the applicant.

[30] As regards Mr Lehlakola, the applicant pointed to no history of animosity between him and Mr Lehlakola and had pointed to no serious issues he had that would cause Mr Lehlakola to institute disciplinary action against him for leaking the exam paper. I thus cannot find the two witnesses to have anything to gain by falsely implicating the applicant. I had no reason to either question or doubt their credibility.

[31] I find the applicant to have breached a rule by leaking the exam paper to students. I also find the applicant to have been aware of the rule in that, as a lecturer, his role is to impart knowledge and allow development of students by protecting instruments that are put in place to test their knowledge and understanding of the subjects that are taught. Leaking of exam papers or sharing exam papers with students defeats this purpose and amounts to gross dishonesty because it goes against the very objective of student development. The purpose of any exam is to ensure that students can apply their own independent knowledge of what they learn. Students can never be said to have gained any valuable knowledge if the integrity of the exams they write is compromised, and the applicant, as a lecturer, should know this. Mr Lehlakola amplified same when he stated during his testimony and under cross examination that where the college leak was not picked up on time, Umalusi could have closed the campus to the detriment of innocent students. I find the applicant’s conduct to have been grossly dishonest and to consequently have harmed the trust relationship. The applicant’s conduct was not only grossly dishonest but was shameful and is conduct that should invite scorn.

[32] Courts have restated the principle that gross dishonesty should invite the harshest of sanction, which is dismissal. Labour Appeal Court in Nedcor v Frank and others , describing dishonesty, stated that:

“Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently.”

This definition finds application in the applicant’s conduct. The integrity of results depends on students having applied the knowledge they gain from lectures without getting prior knowledge of the questions against which their understanding is tested. Where students cheat, especially where such cheating occurs at the behest of a lecturer, harsh penalty should be considered. Cheating in academia, as the applicant should know, is a very serios transgression, and once an institution’s integrity is brought into question, same has the consequences of seriously harming its academic reputation. It is in this light that the applicant’s conduct should be viewed.

[33] It is now trite that where the employer has provided prima facie proof of the misconduct as alleged, the evidentiary burden shifts to the employee to prove his own defense, a principle restated in Compass Group Southern Africa (Pty) Ltd v CCMA and others the Court held that:

“Once the Employer provides prima facie proof of the misconduct as alleged, the evidentiary burden shifts to the Employee to prove his own defense. If the Employee then fails to put up a defense or fails to prove his defense, the Employer’s prima facie proof of misconduct becomes conclusive proof, and the Employer has then discharged the overall onus that always rested with it.”

[34] It is my finding that, in this matter, the defense advanced by the applicant amounted to no defense and that his claim as to substantive unfairness should not succeed.

[35] In the premises, I make the following award:

AWARD

[36] The dismissal of the applicant was procedurally and substantively fair.

[37] The application is accordingly dismissed, and the Council is directed to close the file.

Monde Boyce
Panelist: ELRC