ELRC 223-20/21GP
ELRC 223-20/21GP
Award Date:
27 January 2021
Case Number: ELRC 223-20/21GP
Province: Gauteng
Applicant: PSA obo Kgomo, K M
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Virtually
Award Date: 27 January 2021
Arbitrator: Mathabo Makwela
Case Number: ELRC 223-20/21GP
Commissioner: Mathabo Makwela
Date of Award: 27 January 2021
In the ARBITRATION between
PSA obo Kgomo, K M
(Union/Applicant)
And
Gauteng Department of Education – Gauteng
(Respondent)
Union/Applicant’s representative: Mr. Ben Bosch
E-mail: benb@statssa.gov.za
Respondent’s representative: Reginah Mogami-habedi
E-mail: reginah.mogami-habedi@tnc.edu.za
Details of Parties and Representation
1. The arbitration proceedings were held through zoom and finalized on 25 November 2020 The Applicant was in attendance and was represented by Mr. Ben Bosch, the union official, while the Respondent was represented by Ms. Reginah Mogami-Habedi, its Industrial Relations Personnel. The Respondent submitted a bundle of documents which was marked as Bundle R, R1 and R2 while the Applicant’s bundle of documents was marked as Bundle A.The proceedings were digitally recorded and hand written notes thereof were taken. Interpretation services were not required.
Background to the Dispute
2. The parties are KM Kgomo (the Applicant) and Gauteng Department of Education (the Respondent). The Respondent is an institution of higher learning. The applicant was employed by the respondent at Tshwane North College- Soshanguve Campus on 01 September 2017 in the position of a Lecturer PL1. As at the date of his dismissal on 20 July 2020, he earned a basic salary of R26 400 per month. The applicant was charged with the following alleged serious acts of misconduct for gross dishonesty in that:
(i) During the 1st semester of 2018 he gave or allocated marks to Mr. M Nengwenani (9904165880083) (student) without having marked his assessment answer script (task 2) for Information Processing N4.
(ii) During the 1st semester of 2018 he gave or allocated marks to Ms. N. Khosa (9309021005083) (student) without having marked her assessment answer script (task 2) for Information Processing Introduction N4.
(iii) During the 1st semester of 2018 he gave or allocated marks to M. Mnisi (9905186367063) (student) without having marked his/her assessment answer script (task 2) for Information Processing N4.
(iv) During the 1st semester of 2018 he gave or allocated marks to MG Sefolo (9805260621084) (student) without having marked his/her assessment answer script (task 2) for Information Processing N4.
(v) During the 1st semester of 2018 he gave or allocated marks to R.F Khosa (8911281037085) (student) without having marked his/her assessment answer script (task 2) for Information Processing N4.
(vi) During the 1st semester of 2018 he gave or allocated marks to Ms. NN Msimango (9303231469080) (student) without having marked her assessment answer script (task 1) for Information Processing N4.
(vii) During the 1st semester of 2018 he allocated marks to students without having complied with the marking guideline for National Certificate Information Processing N4.
(viii) Dereliction of duties in that on or around the 1st semester 2018 he failed to mark student answer scripts of Task 1: Information Processing N4 and assigned students to mark each other and in the process submitted false evidence in the execution of his duty.
(ix) Refusing to carry out a lawful order or routine instruction without just or reasonable cause in that during the 1st semester of 2018 he did not submit his subject file for Introduction Information Processing N4 and Information Processing N4 in line with Section 9 and Section 9.1 of the Internal Continuous Assessment (ICASS) Guideline;
Alternatively
For refusing to carry out a lawful order or routine instruction without just or reasonable cause in that during the 1st semester of 2018 he did not submit his subject file for Introduction Information Processing N4 and Information Processing N4 in line with Section 9 and item 9.1 of the Internal Continuous Assessment (ICASS) Guideline.
(x) Refusing a lawful or routine instruction without just and reasonable cause in that during the 1st semester of 2018 he did not submit his assessment file for Introduction Information Processing N4 and Information Processing N4 in line with Section 9 and Section 9.2 of the Internal Continuous Assessment (ICASS) Guideline;
Alternatively
Refusing to carry out a lawful order or routine instruction without just or reasonable cause in that during the 1st semester of 2018 he did not submit his assessment file for Introduction Information Processing N4 and Information Processing N4 in line with Section 9 and item 9.2 of the Internal Continuous Assessment (ICASS) Guideline.
3. Charges 1-6 were agreed to be one charge and the Applicant was found guilty of all the charges. The applicant contended that the marking guideline was for 2020. Procedural fairness was placed in dispute and the Applicant contended that it had taken the chairperson of the hearing three months to issue the outcome, instead of five days after submission of aggravating and mitigating factors as prescribed by Resolution 1 of 2003.
Issue to be Decided
4. The issue to be decided is whether the dismissal of the Applicant was procedurally and substantively fair. The Applicant sought relief in reinstatement.
Survey of Parties’ Evidence and Arguments
The Respondent’s Case
Munro Du Preez (Munro)’s evidence under oath:
5. Munro testified that he is the Deputy Campus Manager; Academic at the Tshwane South TVET College in Centurion. He has been in the employ of the Respondent since 1993. The process of marking a computer subject is; firstly that one marks with a red pen for accuracy with a slash and for accuracy with a blue pen with a cross. There are two sections to be marked for both accuracy and display in each section. Section A for accuracy is marked with a red pen and is minus four (4) per error. The display is marked with a blue pen and it is minus two (2) marks per error. In terms of Section B, word processing accuracy is minus one (1) mark per error and for display as well. At the end of the question there must be a diagram showing the total marks for accuracy and display. The questions must be marked and the errors indicated in that diagram. Student marks must be written on the front of the answer sheet, be added and transferred as the ICASS mark i.e. year mark. Lecturers must give learners three (3) assessments and assignment of internal examination in terms of ICASS.
6. As per page 57 of the Bundle, it is stated that Nengwenani had a late assignment and at pages 56-64 there were no marks given. The script was not marked but Nengwenani’s marks are recorded at page 144 of the Bundle and in terms of ICASS that must account to the total of 30%. Page 55 is the script of NK Khosa and Khosa’s mark is recorded at page 145 but there is nothing marked and the student’s competency cannot be seen. One can have a wrong mark sent to ICASS and teachers must mark according to the marking guideline. The fact that the student submitted an assignment late does not mean that the assignment must not be marked. Failure to mark the assignment will result in the student complaining to the Department and that is not fair to the student. The total mark allocation must be placed at the bottom of the front of the answer script in terms of ICASS and external examination.
7. Munro further testified that ten percent (10 %) of the scripts must be moderated by someone chosen by the senior lecturer of that subject. The Campus must keep the scripts for at least six months because the moderation process can take too long. If the student does not submit his/her task and a valid reason exists, the student must be allowed to write a late test. There is no true reflection of task 2 because the student was not marked.
Under cross-examination, Munroe testified that:
8. He is an expert in the subject. He did not testify that the applicant was grossly dishonest but was only a witness on the paper in front of him. The questions were not marked as per the Bundle. The Applicant did not perform his duties as a lecturer and dishonesty may mean that he was lying. He had given students 40% but it was not known where the 40% came from. If the student has a valid reason for not submitting a task, the script must be marked and if no valid reason exists, the student must be allocated a zero mark.
9. There is no timeline for lateness and each case is dealt with on its own merits. Late submission is not dealt with in ICASS. He could not testify on Tshwane North assessment policy because he does not know about it. He could not state if Tshwane North College has an assessment policy and also if it has structural problems. He also could not comment on the Soshanguve Campus policy or practice that one is not allowed to give students more than 40% if there is a late assignment. He did not know how Soshanguve Campus deal with assignments because he does not work there. He could not insist in his evidence-in-chief that the applicant has lied in giving the students 40% because he did not know how that worked at the Soshanguve Campus.
10. Munroe further testified that he could not comment on the fact that in the first semester of 2018 there was only two months of teaching instead of five months at the Soshanguve Campus due to student protests. He also could not comment on the fact that during the two months the applicant was expected to administer and assess all three assessments. There was nothing wrong in how, in terms of page 144 of the bundle, Nengwenani’s 40% is the same 40% for task 2 and that it is in line with ICASS.
11. Under re-examination, he testified that all employees of TVET are employees of the Department of Higher Education and Training. The assessment policies are applicable to all the campuses of the College as they are signed off by the Chairperson of Council.
Selaelo Sebetlene (Selaelo)’s evidence under oath:
12. Selaelo testified that he is the Deputy Principal: Academic Services at the Tshwane North TVET College. He is responsible for ensuring that teaching and learning as well as assessments take place at the College. There should be effective processes for students to get their results. The role of the lecturer is to implement ICASS documents in terms of setting tasks, marking tasks and submitting learners’ results. ICASS provides guidelines for conducting of assessments. In terms of ICASS, students must take three assessment, one internal examination, two assignments and three tests. The weight according to each must add up to 100. There must also be a portfolio of assessment and a subject file. It is expected of a lecturer to show that their files are compiled in terms of the guidelines.
13. Assessment contributes towards the final exam mark. If the student has not taken an assessment, the student will not be given a mark. Not marking a script is a serious misconduct and means that ICASS has not been administered and the College may be deregistered as an exam centre. It also brings the qualification into disrepute as they prepare the students for the world of work. Once the quality of the qualification is compromised, the public may lose confidence in the quality of the qualification they offer.
14. The Respondent has been consistent in dealing with lecturers who have committed similar misconduct in the past. Senior lecturer, Ms Vilakazi, the Applicant’s immediate supervisor, and HOD, Mr. Mekwa, were subjected to disciplinary action. Mekwa tendered his resignation during the investigation. Ms. Vilakazi was dismissed. Both the seniors had failed to monitor that the Applicant adhered to ICASS. The policy on assessment is developed by the College in line with the ICASS guideline as per page 15 of the Bundle. One cannot allocate marks to a student if one has not marked the students’ script. If there is no communication of extension of learning owing to disruptions, a lecturer cannot be justified to falsify the students’ marks. In terms of pages 73-86 of the Bundle, there is one tick per page and he was not sure how the 40% was arrived at. The manner in which the task was marked was not in accordance with the marking process. According to the script, there should be marks for each question or sub-question. The verification and moderation process must be able to see how the total mark was arrived at. The marking was not done in accordance with the ICASS guideline. It is as if the Applicant neglected to do what he had to do. He did not do his work and there will be trust issues as he had not performed his work diligently. Moderation will look at the task and ICASS provides that there must be compliance to the syllabus and the memorandum. The lecturer must take the scripts for moderation and it is expected of the senior lecturer to do verification.
Under cross-examination, Selaelo testified that:
15. He started working as Deputy Principal at the College since September 2018. He knew that the allegations against the Applicant related to the first semester. Having joined the College in September 2018 he might not have knowledge of the case but knows the ICASS guidelines. He did not know what happened in the first semester of 2018 because he was not at the College. In terms of charges 1 and 2 marks were allocated for scripts that were not marked and that constituted dishonesty.
16. Selaelo also testified that in terms of charge 2 on failure to comply with marking guideline for National certificate Information Processing N4, the National Certificate Information Processing is a separate document from the ICASS guideline. They have more than 300 subjects on the Report 191 programmes. For different subjects one will not have different ICASS guidelines. The task and marking guidelines will be different from each College because the assessment is set by a different lecturer in line with ICASS.
17. The marking guideline is like a memorandum. In this case the Applicant will be responsible for drawing up the task with the guideline. ICASS guideline is like a policy setting the parameters on how to conduct assessment on ICASS. In this case, each subject will have a syllabus and ICASS will dictate how it should be marked. The standard is the same approach that is applicable for external examination.
18. The Applicant contravened both ICASS guidelines and the marking guideline. The setting of assessment tools is the same as the marking memorandum. He contravened clauses 5 and 6. In terms of setting the task, if that was part of the task, he will not say that he contravened it. He did not comply with clause 6- the marking guideline document, as he, the witness, has not seen it. It was a question of whether the marking guideline was developed by the Applicant as a lecturer. He would not know if there was a marking guideline submitted by the Applicant in the first semester of 2018 and would thus not know if the Applicant had submitted it or not and could not say if he contravened clause 6.
19. He knew that there are two guidelines on the National Certificate Information Processing and that there is a guideline from the lecturer. The two are different documents. The National Guideline provides how the subject has to be marked. When one develops the internal guideline, it must comply with the National Guideline. In response to whether he has any knowledge on whether the College has an internal assessment policy and whether it was existing in the first semester of 2018 and its provisions in terms of late assignment submission, he testified that there are conditions for the conducting of assessments. If a student submits a task late, the lecturer will, in terms of ICASS, consider the reason for lateness. The marking of the task has to take place irrespective that the task was submitted late. In response to a question that the Applicant has never seen a policy that talks about allocation of marks and marking of late assignments, he testified that the policy was on the intranet and the Applicant could have viewed it himself. The task that was missed was the same as the one that was submitted late in terms of page 20 of the Bundle clause 8.
20. He would not know that for the time that the Applicant was at the College that there was no moderation done in 2018. He was not aware of the overcrowding in the Computer Lab in the first semester of 2018. The Applicant was dishonest in terms of marking and there could have been no deviation from the marking guidelines. He did not mark a script and thus had derelicted his duty. It is expected of lecturers to mark learners’ scripts and not to give students scripts to mark each other (peer marking). He was not aware that peer marking is a current practice at the College. There can be peer marking but not with the tasks that involve ICASS tasks or those that form part of the ICASS final mark. ICASS is setting of tasks, marking guidelines and marking. One cannot get to the final mark if one has not marked. Page 19 of the Bundle under post assessment moderation of task states that marking should be undertaken by the lecturer before moderation is done. There is an internal policy on assessment located in the intranet for lecturers to assess.
Siphiwe Nkabinde (Nkabinde)’s evidence under oath:
21. Nkabinde testified that he is the Campus Manager for the Soshanguve Campus and joined on 21 May 2018. His role entails managing the school, work allocation, ensuring that lecturing is conducted, assessments preparation, provision of resources and learner support. Assessment is the evaluation of learner performance and lecturers are expected to teach and mark the assessment, ensure verification and moderation. There are marking guidelines to be followed as per the marking guidelines. Examination Instruction 13 of 2014 guides the marking of computer assessment. Three tasks are required in the Report 191. Task 1 is a test, task 2 is an assignment and task 3 is a mini exam. They are guided by ICASS Guideline which is a National Policy to instruct them to complete the task in the Report 191.
22. In terms of R53 it shows the scope of assessment, the duration and marks alignment and the scope being 70. Lecturers prepare lesson plans, lecture students, set up tasks and assess students based on what they have taught. They are expected to have subject files, portfolios of evidence and assessments. Lecturers are to ensure that the task is moderated by a senior lecturer and verified by a head of department. The lecturer’s work must be recorded and submitted for data capture for capturing. It is his duty to ensure that teaching and learning takes place and he checks whether the lecturer has marked the scripts before he signs them off. He requested senior lecturers to send all tasks and memorandums with the students’ scripts but they did not do so. He had then requested lecturers to submit directly to his office and they did not submit all that he had requested and had submitted only the scripts.
23. When he received the student’s scripts, he discovered that there were fraudulent marks allocated to scripts. The Applicant did not mark the scripts but had merely allocated marks. In some instances, on the scripts, it was just a tick. Unlike any other subjects, computer subjects are marked differently. One uses a red and blue pen as guided by Examination Instruction 13/200. Nengwenani script on R57-58 did not have student feedback, the student was not moderated, marks allocated in the wrong place. There was no marking but only one tick from R58-64. On R65-72 the student was allocated 40% and from R66-70 there was only one tick while there is none on R72. The script was not marked.
24. If the student has submitted a late assignment, it is a missed assignment. However, when a valid reason is advanced, the lecturer can communicate with the senior lecturer up to head of department and work on the issue. If the reason is valid, the assessment must be marked and the student is allocated a zero mark if no valid reason has been advanced. The ICASS Policy and moderation of assessment policy do not state that if an assessment is missed one should be allocated 40%. The 40% is the individual discretion without following the policy. There is no credibility where the student is allocated marks after late assessment.
25. The Applicant’s actions were dishonest as he had given marks which were not a true reflection. He compromised the integrity of the assessment and brought about a bad reputation for the College. He was deceitful and insincere to students when he gave them marks which were not a true reflection of the students’ work. He had referred the matter to Head Office and requested the subject experts to give more flesh to the marking and they had explained that the marking was not accurate.
26. In as far as dereliction of duty was concerned, he testified that students are not allowed to mark their own scripts but marking was the responsibility of the Applicant. As per R99-102 Kopano C Molewa was allocated 95% but the work was not moderated. The student had marked the script and the Applicant had signed. On R100-102 there is no marking and 4 is written on the script. R106 bearing the script of Loveness Simelane was allocated 85%, the student had signed but the script was not moderated. R105 has 4 written on it and the script was not marked.
27. There were other lecturers who also did not do their work. Some had resigned and others were subjected to disciplinary hearings. The relationship with the Applicant has irretrievably broken down. The Applicant’s misconduct is very serious as it affects learners’ performances. The work relationship is very tense as they failed to their basic work.
Under cross-examination, Nkabinde testified that:
28. In terms of charge 1, marks were allocated where there was no marking at all. In terms of charge 2, marks were allocated but the marking was inaccurate as it did not comply with the guideline. R57 was a late assignment. If there are good reasons and the lecturer had accepted the reason, the lecturer must mark the script faithfully. There are affidavits on the reasons of lateness on the script at R57 and the policy provides that the script must be marked.
29. The marking guideline must be pre-moderated by a senior lecturer and there must be standard marking guideline moderated by a senior lecturer. There was no moderation or verification of the script in question. In response to a question that the Respondent has failed to submit the marking guideline to the arbitration as requested, he testified that he had requested senior lecturers to send the work of lecturers and they did not do so. He established that the Applicant did not follow the marking guideline. He did not receive the portfolio of evidence with the marking guideline from the Applicant.
30. The internal guideline must be in line with the National Guideline of marking using a red and blue pen. R2 page 1 is the assessment approach to Computer and Information Processing and the subject uses negative marking. In as far as dereliction of duty charge was concerned, he testified that the students had said that they marked their own scripts. In terms of the students’ affidavits, they marked each other’s scripts. It was either that the students marked their own scripts or that of each other but the scripts were not marked by the Applicant. He was not in the class and would not know whether the students marked their own scripts or that of each other.
The Applicant’s Case
K M Kgomo (the Applicant)’s evidence under oath:
31. The Applicant testified that he was offering Information Processing N4 and Introduction to Information Processing N4. Students were aware that late assignments get allocated 40% as marks will be deducted. Each and every lecturer has his/her own way of managing his/her classroom. He allocated 40% to leaners who submitted their assignments late. He has been doing this and was never informed that it was wrong. His understanding of R1 page 10 paragraph 7.6 is that a lecturer only issues additional assessment if a student was absent on the day that he issued an assessment. In this case no student was absent and he did not have to issue an additional assessment. In the three tasks that he was assigned he had issued out tasks to students. He did not find anything that talked to late submission of assessments. Though he reported to Ms. Vilakazi, he never discussed the matter with her. There were no complaints regarding the marks on R20.
32. In respect of charge 2, he had designed the internal assessment and the marking guideline. He does not understand why it was said that he did not comply with the marking guideline. He did not submit the marking guideline to the investigating officer because his laptop was stolen from his house during a burglary and the marking guideline was in his laptop. It was an internal assessment and it was only him who had the marking guideline. He was never asked to submit the marking guideline.
33. The marking guideline for National Certificate Information Processing N4 is the National Guideline for external examination written by all students in TVET Colleges. There is no way that his internal assessment can be in line with the external assessment. In as much as he designs his internal assessment, he must be able to design his marking guideline.
34. As regards to charge 3, he testified that there were students’ unrest for 5-7 weeks and teaching and learning did not take place at that time. Information Processing is a practical subject and there is no way that one can assess students without teaching them. A lot of complaints came from repeating students stating that they did not know how their scripts were marked. He used peer assessment where students swapped scripts among each other so that they could see their mistakes and realise how many marks they had lost. He facilitated teaching and was able to mark scripts. There was no rule disallowing peer assessment and he was in the class with students during that peer assessment.
Under cross-examination, the Applicant testified that:
35. The responsibility of a lecturer is to manage the classroom, teach, assess, issue tasks, mark assessment and provision of student feedback. He gives three assessments, tests, assignments and mini examination. He became aware of the ICASS Policy and the other policy during the investigation by the investigating officer. The question paper is the documentation that a lecturer is supposed to keep to assess students. The purpose of assessment is to evaluate depth and knowledge the student has acquired during learning. Feedback to students can be given either orally or in writing.
36. The three tasks given to students contribute towards their year mark and the student has to obtain 40% as entry mark to sit for examination. The rule was that for any assignment submitted late, the student will receive 40%. The purpose of requesting affidavits from students who submitted their assignments late was to have proof that the students submitted assignments late. The mark sheets are not the same because of the submitted affidavits. This rule was formulated by him in class.
37. He conceded that he did not mark the script from R57-64. He marked with one tick and acknowledged the assignment with 40% and wrote feedback as late assignment. The tick was marking the assignment that he had received late. He will use two pens to mark a normal assessment that is not late to show accuracy and manipulation. He did not find any mistake on R135 from the student. On R136 he had realised that the student had used the wrong font and subtracted 7 marks. He did not use two pens as time was not enough. Students were coming from an unrest and they had to submit scripts quickly. In R134-137 he had used one pen to mark for accuracy and manipulation.
38. In terms of accuracy one uses slash and for manipulation, a circle in the area where the manipulation emanated. He did not circle or slash, he did not go to the mistake or point it out but had written the overall number of mistakes. He denied that he did not mark the scripts and that he had merely given students free marks as late assignments. He could not recall how R127-133 script was marked. There was no raw mark and he had probably missed a page. He had marked the script in a rush and the student had obtained 73%. The script in R127 was dated 10 March 2018 and the semester is from February to June 2018. He could not recall how he got to 73%. It was a mistake on his part and he apologised for it. MK Mahubela received 33 for task 1 and 73 for task 2. He did not mark properly, he did not use the red and blue pen method and did not apply negative marking. It was an oversight on his part as the total mark given to the student did not correspond with the marking on the script.
39. He has never seen the National Marking Guideline. In terms of R134-140 Daisy Moyo’s script, he had allocated 42% using one pen to mark for accuracy and manipulation. He focused only on the mistakes on the scripts and deducted 7 marks and used a memorandum typed in his computer. In response to a question on how on R134 he was able to detect 7 marks and the total had become 173 out of 180 implying that the learner was awarded 42%, he testified that the raw mark was not written on the script. The reason why the negative mark was not appearing on the script was because he did not put it as he had to submit quickly.
40. In respect of the charge on dereliction of duty, he testified that students questioned the high failure rate from N4-6. Due to having many students, he had come up with peer assessment where students swapped scripts and marked each other. He also marked some of the student’s scripts. He disagreed that he derelicted his duty because he was in class when students marked their scripts. As regards R107-109 on Thabang Ramaoka’s script not displaying accuracy and manipulation marking, he testified that they marked accuracy and manipulation using a pencil so that students could spot their mistakes. He did not recall the total mark of the question but it was on the question paper. There was a total of 11 mistakes. There was no circle or slash on R108 and R109 as he was in the class marking with more than 40 students.
41. As regards R121-126 he had gone through pointing the student’s mistakes and he marked it himself. On R121 for Victoria Ngoveni, he calculated the number of mistakes and subtracted them from 150. R122 had no mistakes, R123 had a table not finished and there were two dashes in the script because she was penalized. R124-126 had no negative marking as everything was correct. The student lost 90 marks and thus obtained 42%. The scripts were marked but not in accordance with the method as testified to by the Respondent’s witnesses. His job was to teach and assess students and he could not comment on personal relationship between himself and management.
Analysis of Parties’ Evidence and Arguments
42. The Applicant had referred an alleged unfair dismissal dispute related to some acts of misconduct. Section 192 of the Labour Relations Act 66 of 1995 provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. Item 2 (1) of the Code of Good Practice: Dismissal provides that a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. It was common cause that the Applicant was dismissed on 20 July 2020.
43. The Applicant was essentially charged for gross dishonesty, dereliction of duty and gross insubordination. He disputed the procedural and substantive fairness of his dismissal. As regards procedural fairness challenge, he contended that the chairperson of the hearing issued the hearing outcome three months after receiving mitigating and aggravating factors instead of the five days as prescribed for by Resolution 1 of 2003.
44. The Respondent led testimony on Nengwanani’script on R57-64. This script had only one tick and the student was allocated 40% indicating that his assignment was late. The Applicant’s testimony was that 40% is allocated to students whose assignments were submitted late. The student feedback was indicated as assignment late and there were no marks at the bottom right corner of the answer sheet. It is evident that the applicant allocated the 40% which he could not account for how he arrived at it except for his reasoning that it was so because it was a late assignment. The respondent’s evidence was that if the assignment is submitted late and there is no valid reason, the student must be allocated a zero mark. If there is a valid reason, the student assignment must be marked. It would not make sense that students are allowed to give reasons for submitting late only for purposes of proving that they submitted late. NK Khoza too fell in this category of learners who the applicant had given 40%. There was no way in which the students would have submitted valid reasons for their late submissions because if it were so they would have had their assignments marked. The marks allocated to the students in question amounted to a guess work by the Applicant and attacked the core of the credibility and integrity of assessment of learner performances. The fact that the Applicant allocated them 40% was not a true reflection of their performance as they deserved nothing from those assignments having not advanced valid reasons for their assignments to be marked and to have their true performance recorded as achievement or not.
45. The Respondent led no evidence regarding the allegations made against the applicant pertaining to the scripts of M. Mnisi, G. Sefolo, NN Msimango and RF Khosa. Therefore, the Respondent failed to prove that the Applicant committed gross dishonesty in this regard.
46. Accordingly, I find that the Applicant did not commit gross dishonesty pertaining the scripts of M Mnisi, G Sefolo, G Sefolo, NN Msimango and RF Khosa.
47. It was also alleged that the Applicant had committed serious act of misconduct of gross dishonesty in that during the 1st semester of 2018 he had given or allowed marks to his students without having complied with the marking guideline for National Certificate Information Processing N4. The Respondent testified through its witnesses that in marking in this certificate accuracy and manipulation are marked and that there is negative marking applied. Accuracy errors are indicated with a red slash and repetitive accuracy errors with a red circle. The display errors are marked with a blue X while repetitive display errors are marked with blue circle. The Applicant conceded that as regards MK Mahubela there was no raw mark and he did not mark the script properly. He never used a red or blue pen and did not apply negative marking. His total did not correspond with the marking on the script and he had given the student 73% but could not recall how he had marked that script. As regards Daisy Moyo, he had allocated her 40% and had used one pen for accuracy and manipulation. He did not have a raw mark written on the script and did not apply negative marking.
48. The Applicant’s concessions as captured above bear testimony to his acceptance of having committed the act of misconduct in not complying with the marking guideline for National Certificate Information Processing N4. Though, he argued at the commencement of the arbitration that the policy only commenced in 2020, he failed to adduce any evidence to that effect. It is surprising to me why a lecturer in his situation would not have known about the marking guideline while lecturing the same subject. His own bundle of documents contained the marking guideline and I find it very odd that he would not have known about this specific marking guideline being the subject matter expert and learning facilitator and assessor in Information Processing. His evidence has not shed any light on where he had obtained his guidelines on marking and/or assessing learner performance in this regard. It could not be that it could have been drawn out of a vacuum when these programmes are registered on the National Qualifications Framework with assessment tools indicating how learner performances have to be assessed. This can be seen on his evasive evidence when he testified that he did not know about the marking guideline as well as assessment tools in this subject. It is no wonder that he sought to evade responsibility by stating that he had lost the marking guideline which had gone missing when his laptop was stolen in an alleged house burglary. No record of such burglary with the SAPS was produced to these proceedings as evidence that his laptop had been stolen. Even if it was, him being the subject matter expert, he would have produced one identical to the missing one.
49. The marking guidelines are significant in ensuring the credibility and integrity of assessment of learner performances especially where negative marking is applied. Learners have to get a true reflection of their performances in terms of achievement and shortcomings. Assessment of learner performance must be a transparent one as learners must know what they are being assessed on so as to know if they have achieved or not. Assessment of learning is not the monopoly of the learning facilitator and/or assessor of learning. It is an inclusive issue to all stakeholders involved in the learning environment. The guidelines have been provided in keeping with that transparency and inclusivity. I, therefore, find that based on his own concessions, the Applicant had committed the offence of allocating marks to students without complying with the marking guideline for National Certificate Information Processing N4.
50. The Applicant was also charged and dismissed for dereliction of duties in that he had failed to mark students’ answer scripts for Task 1 Information Processing N4 and had assigned students to mark each other and in the process submitted false evidence in the execution of his duty. Selaelo testified that lecturers must mark learner performances and not students marking each other especially on an ICASS task that will form part of ICASS final mark. In terms of ICASS marking is undertaken by the lecturer before moderation is undertaken. On the other hand, the Applicant testified that he had given students scripts to be marked among the students themselves and that it was allowed as peer assessment. However, peer assessment is not applicable for tasks that are ICASS final mark. It is applicable only during the learning facilitation process. Task 1 was to contribute to the ICASS final mark and thus peer assessment is not allowed. Students are not trained assessors of a specialised field, and only facilitators of learning in the form of lecturers are assessors. It cannot be expected that a leaner assesses his peer on an outcome that will finally decide the learner’s achievement on a particular subject. It is common cause between parties emerging from evidence that it is the responsibility of the lecturer to assess learner performance. Dereliction of duties is a form of gross negligence. It is abdication of one’s responsibility. The fact that the Applicant was in class when the students were marking each other’s scripts does not mean that he had not abdicated his responsibility to mark the students’ scripts. He had done so when he made students to mark each other on a task that will form part of the final ICASS mark. I accordingly find that the applicant had committed the offence of dereliction of duties as charged.
51. The respondent has not led any evidence regarding the charges that the applicant had refused to carry out a lawful order or routine instruction without just or reasonable cause in that during the 1st semester of 2018 he had not submitted subject file and assessment file for both Information Processing N4 and Introduction to Information Processing N4 in line with Section 9 and item 9.1 and 9.2 respectively of the ICASS Guideline. Selaelo testified that he had requested senior lecturers to send all tasks and memorandums with students’ scripts to him but that they did not. He had then requested same directly from lecturers and they submitted only the scripts. There was no evidence that the Applicant had refused or failed to submit files as alleged and I, therefore, find that the Respondent has failed to discharge its onus that the applicant is guilty of the insubordination charges.
52. Based on the aforegoing, I find that the dismissal of the applicant was substantively fair. The acts of misconduct as committed by the Applicant were of a serious nature and put the reputation of the Respondent as provider of higher learning at risk in terms of the quality and integrity of its qualifications. The acts of misconduct on the part of the Applicant do not instill public confidence in the institution and the qualifications it offers. I also agree given the consequences of the Applicant’s actions; that an employment relationship of trust cannot continue to exist between the parties. The respondent as an institution of higher learning has to trust that assessors of learner performance have to be truthful and record accurate and true learner performances and be able to account as to how they have reached certain conclusions regarding learner performances. The industries into which these learners are to be unleashed at the end of their learning period has to continue to have trust in the products produced by the institution. It will be unreasonable to expect the Respondent to put up with the acts of misconduct of the Applicant and dismissal was therefore an appropriate sanction under the circumstances.
53. The Applicant had contended that his dismissal was procedurally unfair in that the disciplinary hearing chairperson took three months to issue the hearing outcome instead of the five days after receiving aggravating and mitigating factors as provided for by Resolution 1 of 2003. The Respondent bears the onus to prove that the dismissal of the applicant was procedurally fair. The Respondent has not led any evidence in respect of the Applicant’s contention and I accept that three months is a period highly in excess of the said five days as provided for Resolution 1 of 2003. The respondent has thus breached a collective agreement between the parties as regards the communication of the Applicant’s sanction. No reasons have been advanced as to why it had taken that long for the sanction to be communicated. On the other hand, the Applicant has not shown how this delayed communication of a sanction may have prejudiced him. Out of respect of the parties’ collective agreement in Resolution 1 of 2003, I find that an equivalent of one month salary will be just and equitable as compensation for the breach of procedure in relation to the communication of sanction to the Applicant outside the prescribed time-period of five days.
Award
54. The dismissal of the applicant was procedurally unfair but substantively fair.
55. The applicant’s sought relief of reinstatement is denied.
56. The Respondent is ordered to pay compensation for procedural unfairness to the Applicant equivalent to one month’s salary amounting to R26 400.00 into the applicant’s bank account as known to the Respondent by no later than 15 February 2021.
57. The amount in clause 55 of this award shall attract interest at the rate of 15.5% in the event that it is paid on any other date after.
Signature:
ELRC Panelist: Mathabo Makwela
Sector:
Province: Gauteng
Applicant: PSA obo Kgomo, K M
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Misconduct
Venue: Virtually
Award Date: 27 January 2021
Arbitrator: Mathabo Makwela
Case Number: ELRC 223-20/21GP
Commissioner: Mathabo Makwela
Date of Award: 27 January 2021
In the ARBITRATION between
PSA obo Kgomo, K M
(Union/Applicant)
And
Gauteng Department of Education – Gauteng
(Respondent)
Union/Applicant’s representative: Mr. Ben Bosch
E-mail: benb@statssa.gov.za
Respondent’s representative: Reginah Mogami-habedi
E-mail: reginah.mogami-habedi@tnc.edu.za
Details of Parties and Representation
1. The arbitration proceedings were held through zoom and finalized on 25 November 2020 The Applicant was in attendance and was represented by Mr. Ben Bosch, the union official, while the Respondent was represented by Ms. Reginah Mogami-Habedi, its Industrial Relations Personnel. The Respondent submitted a bundle of documents which was marked as Bundle R, R1 and R2 while the Applicant’s bundle of documents was marked as Bundle A.The proceedings were digitally recorded and hand written notes thereof were taken. Interpretation services were not required.
Background to the Dispute
2. The parties are KM Kgomo (the Applicant) and Gauteng Department of Education (the Respondent). The Respondent is an institution of higher learning. The applicant was employed by the respondent at Tshwane North College- Soshanguve Campus on 01 September 2017 in the position of a Lecturer PL1. As at the date of his dismissal on 20 July 2020, he earned a basic salary of R26 400 per month. The applicant was charged with the following alleged serious acts of misconduct for gross dishonesty in that:
(i) During the 1st semester of 2018 he gave or allocated marks to Mr. M Nengwenani (9904165880083) (student) without having marked his assessment answer script (task 2) for Information Processing N4.
(ii) During the 1st semester of 2018 he gave or allocated marks to Ms. N. Khosa (9309021005083) (student) without having marked her assessment answer script (task 2) for Information Processing Introduction N4.
(iii) During the 1st semester of 2018 he gave or allocated marks to M. Mnisi (9905186367063) (student) without having marked his/her assessment answer script (task 2) for Information Processing N4.
(iv) During the 1st semester of 2018 he gave or allocated marks to MG Sefolo (9805260621084) (student) without having marked his/her assessment answer script (task 2) for Information Processing N4.
(v) During the 1st semester of 2018 he gave or allocated marks to R.F Khosa (8911281037085) (student) without having marked his/her assessment answer script (task 2) for Information Processing N4.
(vi) During the 1st semester of 2018 he gave or allocated marks to Ms. NN Msimango (9303231469080) (student) without having marked her assessment answer script (task 1) for Information Processing N4.
(vii) During the 1st semester of 2018 he allocated marks to students without having complied with the marking guideline for National Certificate Information Processing N4.
(viii) Dereliction of duties in that on or around the 1st semester 2018 he failed to mark student answer scripts of Task 1: Information Processing N4 and assigned students to mark each other and in the process submitted false evidence in the execution of his duty.
(ix) Refusing to carry out a lawful order or routine instruction without just or reasonable cause in that during the 1st semester of 2018 he did not submit his subject file for Introduction Information Processing N4 and Information Processing N4 in line with Section 9 and Section 9.1 of the Internal Continuous Assessment (ICASS) Guideline;
Alternatively
For refusing to carry out a lawful order or routine instruction without just or reasonable cause in that during the 1st semester of 2018 he did not submit his subject file for Introduction Information Processing N4 and Information Processing N4 in line with Section 9 and item 9.1 of the Internal Continuous Assessment (ICASS) Guideline.
(x) Refusing a lawful or routine instruction without just and reasonable cause in that during the 1st semester of 2018 he did not submit his assessment file for Introduction Information Processing N4 and Information Processing N4 in line with Section 9 and Section 9.2 of the Internal Continuous Assessment (ICASS) Guideline;
Alternatively
Refusing to carry out a lawful order or routine instruction without just or reasonable cause in that during the 1st semester of 2018 he did not submit his assessment file for Introduction Information Processing N4 and Information Processing N4 in line with Section 9 and item 9.2 of the Internal Continuous Assessment (ICASS) Guideline.
3. Charges 1-6 were agreed to be one charge and the Applicant was found guilty of all the charges. The applicant contended that the marking guideline was for 2020. Procedural fairness was placed in dispute and the Applicant contended that it had taken the chairperson of the hearing three months to issue the outcome, instead of five days after submission of aggravating and mitigating factors as prescribed by Resolution 1 of 2003.
Issue to be Decided
4. The issue to be decided is whether the dismissal of the Applicant was procedurally and substantively fair. The Applicant sought relief in reinstatement.
Survey of Parties’ Evidence and Arguments
The Respondent’s Case
Munro Du Preez (Munro)’s evidence under oath:
5. Munro testified that he is the Deputy Campus Manager; Academic at the Tshwane South TVET College in Centurion. He has been in the employ of the Respondent since 1993. The process of marking a computer subject is; firstly that one marks with a red pen for accuracy with a slash and for accuracy with a blue pen with a cross. There are two sections to be marked for both accuracy and display in each section. Section A for accuracy is marked with a red pen and is minus four (4) per error. The display is marked with a blue pen and it is minus two (2) marks per error. In terms of Section B, word processing accuracy is minus one (1) mark per error and for display as well. At the end of the question there must be a diagram showing the total marks for accuracy and display. The questions must be marked and the errors indicated in that diagram. Student marks must be written on the front of the answer sheet, be added and transferred as the ICASS mark i.e. year mark. Lecturers must give learners three (3) assessments and assignment of internal examination in terms of ICASS.
6. As per page 57 of the Bundle, it is stated that Nengwenani had a late assignment and at pages 56-64 there were no marks given. The script was not marked but Nengwenani’s marks are recorded at page 144 of the Bundle and in terms of ICASS that must account to the total of 30%. Page 55 is the script of NK Khosa and Khosa’s mark is recorded at page 145 but there is nothing marked and the student’s competency cannot be seen. One can have a wrong mark sent to ICASS and teachers must mark according to the marking guideline. The fact that the student submitted an assignment late does not mean that the assignment must not be marked. Failure to mark the assignment will result in the student complaining to the Department and that is not fair to the student. The total mark allocation must be placed at the bottom of the front of the answer script in terms of ICASS and external examination.
7. Munro further testified that ten percent (10 %) of the scripts must be moderated by someone chosen by the senior lecturer of that subject. The Campus must keep the scripts for at least six months because the moderation process can take too long. If the student does not submit his/her task and a valid reason exists, the student must be allowed to write a late test. There is no true reflection of task 2 because the student was not marked.
Under cross-examination, Munroe testified that:
8. He is an expert in the subject. He did not testify that the applicant was grossly dishonest but was only a witness on the paper in front of him. The questions were not marked as per the Bundle. The Applicant did not perform his duties as a lecturer and dishonesty may mean that he was lying. He had given students 40% but it was not known where the 40% came from. If the student has a valid reason for not submitting a task, the script must be marked and if no valid reason exists, the student must be allocated a zero mark.
9. There is no timeline for lateness and each case is dealt with on its own merits. Late submission is not dealt with in ICASS. He could not testify on Tshwane North assessment policy because he does not know about it. He could not state if Tshwane North College has an assessment policy and also if it has structural problems. He also could not comment on the Soshanguve Campus policy or practice that one is not allowed to give students more than 40% if there is a late assignment. He did not know how Soshanguve Campus deal with assignments because he does not work there. He could not insist in his evidence-in-chief that the applicant has lied in giving the students 40% because he did not know how that worked at the Soshanguve Campus.
10. Munroe further testified that he could not comment on the fact that in the first semester of 2018 there was only two months of teaching instead of five months at the Soshanguve Campus due to student protests. He also could not comment on the fact that during the two months the applicant was expected to administer and assess all three assessments. There was nothing wrong in how, in terms of page 144 of the bundle, Nengwenani’s 40% is the same 40% for task 2 and that it is in line with ICASS.
11. Under re-examination, he testified that all employees of TVET are employees of the Department of Higher Education and Training. The assessment policies are applicable to all the campuses of the College as they are signed off by the Chairperson of Council.
Selaelo Sebetlene (Selaelo)’s evidence under oath:
12. Selaelo testified that he is the Deputy Principal: Academic Services at the Tshwane North TVET College. He is responsible for ensuring that teaching and learning as well as assessments take place at the College. There should be effective processes for students to get their results. The role of the lecturer is to implement ICASS documents in terms of setting tasks, marking tasks and submitting learners’ results. ICASS provides guidelines for conducting of assessments. In terms of ICASS, students must take three assessment, one internal examination, two assignments and three tests. The weight according to each must add up to 100. There must also be a portfolio of assessment and a subject file. It is expected of a lecturer to show that their files are compiled in terms of the guidelines.
13. Assessment contributes towards the final exam mark. If the student has not taken an assessment, the student will not be given a mark. Not marking a script is a serious misconduct and means that ICASS has not been administered and the College may be deregistered as an exam centre. It also brings the qualification into disrepute as they prepare the students for the world of work. Once the quality of the qualification is compromised, the public may lose confidence in the quality of the qualification they offer.
14. The Respondent has been consistent in dealing with lecturers who have committed similar misconduct in the past. Senior lecturer, Ms Vilakazi, the Applicant’s immediate supervisor, and HOD, Mr. Mekwa, were subjected to disciplinary action. Mekwa tendered his resignation during the investigation. Ms. Vilakazi was dismissed. Both the seniors had failed to monitor that the Applicant adhered to ICASS. The policy on assessment is developed by the College in line with the ICASS guideline as per page 15 of the Bundle. One cannot allocate marks to a student if one has not marked the students’ script. If there is no communication of extension of learning owing to disruptions, a lecturer cannot be justified to falsify the students’ marks. In terms of pages 73-86 of the Bundle, there is one tick per page and he was not sure how the 40% was arrived at. The manner in which the task was marked was not in accordance with the marking process. According to the script, there should be marks for each question or sub-question. The verification and moderation process must be able to see how the total mark was arrived at. The marking was not done in accordance with the ICASS guideline. It is as if the Applicant neglected to do what he had to do. He did not do his work and there will be trust issues as he had not performed his work diligently. Moderation will look at the task and ICASS provides that there must be compliance to the syllabus and the memorandum. The lecturer must take the scripts for moderation and it is expected of the senior lecturer to do verification.
Under cross-examination, Selaelo testified that:
15. He started working as Deputy Principal at the College since September 2018. He knew that the allegations against the Applicant related to the first semester. Having joined the College in September 2018 he might not have knowledge of the case but knows the ICASS guidelines. He did not know what happened in the first semester of 2018 because he was not at the College. In terms of charges 1 and 2 marks were allocated for scripts that were not marked and that constituted dishonesty.
16. Selaelo also testified that in terms of charge 2 on failure to comply with marking guideline for National certificate Information Processing N4, the National Certificate Information Processing is a separate document from the ICASS guideline. They have more than 300 subjects on the Report 191 programmes. For different subjects one will not have different ICASS guidelines. The task and marking guidelines will be different from each College because the assessment is set by a different lecturer in line with ICASS.
17. The marking guideline is like a memorandum. In this case the Applicant will be responsible for drawing up the task with the guideline. ICASS guideline is like a policy setting the parameters on how to conduct assessment on ICASS. In this case, each subject will have a syllabus and ICASS will dictate how it should be marked. The standard is the same approach that is applicable for external examination.
18. The Applicant contravened both ICASS guidelines and the marking guideline. The setting of assessment tools is the same as the marking memorandum. He contravened clauses 5 and 6. In terms of setting the task, if that was part of the task, he will not say that he contravened it. He did not comply with clause 6- the marking guideline document, as he, the witness, has not seen it. It was a question of whether the marking guideline was developed by the Applicant as a lecturer. He would not know if there was a marking guideline submitted by the Applicant in the first semester of 2018 and would thus not know if the Applicant had submitted it or not and could not say if he contravened clause 6.
19. He knew that there are two guidelines on the National Certificate Information Processing and that there is a guideline from the lecturer. The two are different documents. The National Guideline provides how the subject has to be marked. When one develops the internal guideline, it must comply with the National Guideline. In response to whether he has any knowledge on whether the College has an internal assessment policy and whether it was existing in the first semester of 2018 and its provisions in terms of late assignment submission, he testified that there are conditions for the conducting of assessments. If a student submits a task late, the lecturer will, in terms of ICASS, consider the reason for lateness. The marking of the task has to take place irrespective that the task was submitted late. In response to a question that the Applicant has never seen a policy that talks about allocation of marks and marking of late assignments, he testified that the policy was on the intranet and the Applicant could have viewed it himself. The task that was missed was the same as the one that was submitted late in terms of page 20 of the Bundle clause 8.
20. He would not know that for the time that the Applicant was at the College that there was no moderation done in 2018. He was not aware of the overcrowding in the Computer Lab in the first semester of 2018. The Applicant was dishonest in terms of marking and there could have been no deviation from the marking guidelines. He did not mark a script and thus had derelicted his duty. It is expected of lecturers to mark learners’ scripts and not to give students scripts to mark each other (peer marking). He was not aware that peer marking is a current practice at the College. There can be peer marking but not with the tasks that involve ICASS tasks or those that form part of the ICASS final mark. ICASS is setting of tasks, marking guidelines and marking. One cannot get to the final mark if one has not marked. Page 19 of the Bundle under post assessment moderation of task states that marking should be undertaken by the lecturer before moderation is done. There is an internal policy on assessment located in the intranet for lecturers to assess.
Siphiwe Nkabinde (Nkabinde)’s evidence under oath:
21. Nkabinde testified that he is the Campus Manager for the Soshanguve Campus and joined on 21 May 2018. His role entails managing the school, work allocation, ensuring that lecturing is conducted, assessments preparation, provision of resources and learner support. Assessment is the evaluation of learner performance and lecturers are expected to teach and mark the assessment, ensure verification and moderation. There are marking guidelines to be followed as per the marking guidelines. Examination Instruction 13 of 2014 guides the marking of computer assessment. Three tasks are required in the Report 191. Task 1 is a test, task 2 is an assignment and task 3 is a mini exam. They are guided by ICASS Guideline which is a National Policy to instruct them to complete the task in the Report 191.
22. In terms of R53 it shows the scope of assessment, the duration and marks alignment and the scope being 70. Lecturers prepare lesson plans, lecture students, set up tasks and assess students based on what they have taught. They are expected to have subject files, portfolios of evidence and assessments. Lecturers are to ensure that the task is moderated by a senior lecturer and verified by a head of department. The lecturer’s work must be recorded and submitted for data capture for capturing. It is his duty to ensure that teaching and learning takes place and he checks whether the lecturer has marked the scripts before he signs them off. He requested senior lecturers to send all tasks and memorandums with the students’ scripts but they did not do so. He had then requested lecturers to submit directly to his office and they did not submit all that he had requested and had submitted only the scripts.
23. When he received the student’s scripts, he discovered that there were fraudulent marks allocated to scripts. The Applicant did not mark the scripts but had merely allocated marks. In some instances, on the scripts, it was just a tick. Unlike any other subjects, computer subjects are marked differently. One uses a red and blue pen as guided by Examination Instruction 13/200. Nengwenani script on R57-58 did not have student feedback, the student was not moderated, marks allocated in the wrong place. There was no marking but only one tick from R58-64. On R65-72 the student was allocated 40% and from R66-70 there was only one tick while there is none on R72. The script was not marked.
24. If the student has submitted a late assignment, it is a missed assignment. However, when a valid reason is advanced, the lecturer can communicate with the senior lecturer up to head of department and work on the issue. If the reason is valid, the assessment must be marked and the student is allocated a zero mark if no valid reason has been advanced. The ICASS Policy and moderation of assessment policy do not state that if an assessment is missed one should be allocated 40%. The 40% is the individual discretion without following the policy. There is no credibility where the student is allocated marks after late assessment.
25. The Applicant’s actions were dishonest as he had given marks which were not a true reflection. He compromised the integrity of the assessment and brought about a bad reputation for the College. He was deceitful and insincere to students when he gave them marks which were not a true reflection of the students’ work. He had referred the matter to Head Office and requested the subject experts to give more flesh to the marking and they had explained that the marking was not accurate.
26. In as far as dereliction of duty was concerned, he testified that students are not allowed to mark their own scripts but marking was the responsibility of the Applicant. As per R99-102 Kopano C Molewa was allocated 95% but the work was not moderated. The student had marked the script and the Applicant had signed. On R100-102 there is no marking and 4 is written on the script. R106 bearing the script of Loveness Simelane was allocated 85%, the student had signed but the script was not moderated. R105 has 4 written on it and the script was not marked.
27. There were other lecturers who also did not do their work. Some had resigned and others were subjected to disciplinary hearings. The relationship with the Applicant has irretrievably broken down. The Applicant’s misconduct is very serious as it affects learners’ performances. The work relationship is very tense as they failed to their basic work.
Under cross-examination, Nkabinde testified that:
28. In terms of charge 1, marks were allocated where there was no marking at all. In terms of charge 2, marks were allocated but the marking was inaccurate as it did not comply with the guideline. R57 was a late assignment. If there are good reasons and the lecturer had accepted the reason, the lecturer must mark the script faithfully. There are affidavits on the reasons of lateness on the script at R57 and the policy provides that the script must be marked.
29. The marking guideline must be pre-moderated by a senior lecturer and there must be standard marking guideline moderated by a senior lecturer. There was no moderation or verification of the script in question. In response to a question that the Respondent has failed to submit the marking guideline to the arbitration as requested, he testified that he had requested senior lecturers to send the work of lecturers and they did not do so. He established that the Applicant did not follow the marking guideline. He did not receive the portfolio of evidence with the marking guideline from the Applicant.
30. The internal guideline must be in line with the National Guideline of marking using a red and blue pen. R2 page 1 is the assessment approach to Computer and Information Processing and the subject uses negative marking. In as far as dereliction of duty charge was concerned, he testified that the students had said that they marked their own scripts. In terms of the students’ affidavits, they marked each other’s scripts. It was either that the students marked their own scripts or that of each other but the scripts were not marked by the Applicant. He was not in the class and would not know whether the students marked their own scripts or that of each other.
The Applicant’s Case
K M Kgomo (the Applicant)’s evidence under oath:
31. The Applicant testified that he was offering Information Processing N4 and Introduction to Information Processing N4. Students were aware that late assignments get allocated 40% as marks will be deducted. Each and every lecturer has his/her own way of managing his/her classroom. He allocated 40% to leaners who submitted their assignments late. He has been doing this and was never informed that it was wrong. His understanding of R1 page 10 paragraph 7.6 is that a lecturer only issues additional assessment if a student was absent on the day that he issued an assessment. In this case no student was absent and he did not have to issue an additional assessment. In the three tasks that he was assigned he had issued out tasks to students. He did not find anything that talked to late submission of assessments. Though he reported to Ms. Vilakazi, he never discussed the matter with her. There were no complaints regarding the marks on R20.
32. In respect of charge 2, he had designed the internal assessment and the marking guideline. He does not understand why it was said that he did not comply with the marking guideline. He did not submit the marking guideline to the investigating officer because his laptop was stolen from his house during a burglary and the marking guideline was in his laptop. It was an internal assessment and it was only him who had the marking guideline. He was never asked to submit the marking guideline.
33. The marking guideline for National Certificate Information Processing N4 is the National Guideline for external examination written by all students in TVET Colleges. There is no way that his internal assessment can be in line with the external assessment. In as much as he designs his internal assessment, he must be able to design his marking guideline.
34. As regards to charge 3, he testified that there were students’ unrest for 5-7 weeks and teaching and learning did not take place at that time. Information Processing is a practical subject and there is no way that one can assess students without teaching them. A lot of complaints came from repeating students stating that they did not know how their scripts were marked. He used peer assessment where students swapped scripts among each other so that they could see their mistakes and realise how many marks they had lost. He facilitated teaching and was able to mark scripts. There was no rule disallowing peer assessment and he was in the class with students during that peer assessment.
Under cross-examination, the Applicant testified that:
35. The responsibility of a lecturer is to manage the classroom, teach, assess, issue tasks, mark assessment and provision of student feedback. He gives three assessments, tests, assignments and mini examination. He became aware of the ICASS Policy and the other policy during the investigation by the investigating officer. The question paper is the documentation that a lecturer is supposed to keep to assess students. The purpose of assessment is to evaluate depth and knowledge the student has acquired during learning. Feedback to students can be given either orally or in writing.
36. The three tasks given to students contribute towards their year mark and the student has to obtain 40% as entry mark to sit for examination. The rule was that for any assignment submitted late, the student will receive 40%. The purpose of requesting affidavits from students who submitted their assignments late was to have proof that the students submitted assignments late. The mark sheets are not the same because of the submitted affidavits. This rule was formulated by him in class.
37. He conceded that he did not mark the script from R57-64. He marked with one tick and acknowledged the assignment with 40% and wrote feedback as late assignment. The tick was marking the assignment that he had received late. He will use two pens to mark a normal assessment that is not late to show accuracy and manipulation. He did not find any mistake on R135 from the student. On R136 he had realised that the student had used the wrong font and subtracted 7 marks. He did not use two pens as time was not enough. Students were coming from an unrest and they had to submit scripts quickly. In R134-137 he had used one pen to mark for accuracy and manipulation.
38. In terms of accuracy one uses slash and for manipulation, a circle in the area where the manipulation emanated. He did not circle or slash, he did not go to the mistake or point it out but had written the overall number of mistakes. He denied that he did not mark the scripts and that he had merely given students free marks as late assignments. He could not recall how R127-133 script was marked. There was no raw mark and he had probably missed a page. He had marked the script in a rush and the student had obtained 73%. The script in R127 was dated 10 March 2018 and the semester is from February to June 2018. He could not recall how he got to 73%. It was a mistake on his part and he apologised for it. MK Mahubela received 33 for task 1 and 73 for task 2. He did not mark properly, he did not use the red and blue pen method and did not apply negative marking. It was an oversight on his part as the total mark given to the student did not correspond with the marking on the script.
39. He has never seen the National Marking Guideline. In terms of R134-140 Daisy Moyo’s script, he had allocated 42% using one pen to mark for accuracy and manipulation. He focused only on the mistakes on the scripts and deducted 7 marks and used a memorandum typed in his computer. In response to a question on how on R134 he was able to detect 7 marks and the total had become 173 out of 180 implying that the learner was awarded 42%, he testified that the raw mark was not written on the script. The reason why the negative mark was not appearing on the script was because he did not put it as he had to submit quickly.
40. In respect of the charge on dereliction of duty, he testified that students questioned the high failure rate from N4-6. Due to having many students, he had come up with peer assessment where students swapped scripts and marked each other. He also marked some of the student’s scripts. He disagreed that he derelicted his duty because he was in class when students marked their scripts. As regards R107-109 on Thabang Ramaoka’s script not displaying accuracy and manipulation marking, he testified that they marked accuracy and manipulation using a pencil so that students could spot their mistakes. He did not recall the total mark of the question but it was on the question paper. There was a total of 11 mistakes. There was no circle or slash on R108 and R109 as he was in the class marking with more than 40 students.
41. As regards R121-126 he had gone through pointing the student’s mistakes and he marked it himself. On R121 for Victoria Ngoveni, he calculated the number of mistakes and subtracted them from 150. R122 had no mistakes, R123 had a table not finished and there were two dashes in the script because she was penalized. R124-126 had no negative marking as everything was correct. The student lost 90 marks and thus obtained 42%. The scripts were marked but not in accordance with the method as testified to by the Respondent’s witnesses. His job was to teach and assess students and he could not comment on personal relationship between himself and management.
Analysis of Parties’ Evidence and Arguments
42. The Applicant had referred an alleged unfair dismissal dispute related to some acts of misconduct. Section 192 of the Labour Relations Act 66 of 1995 provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. Item 2 (1) of the Code of Good Practice: Dismissal provides that a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. It was common cause that the Applicant was dismissed on 20 July 2020.
43. The Applicant was essentially charged for gross dishonesty, dereliction of duty and gross insubordination. He disputed the procedural and substantive fairness of his dismissal. As regards procedural fairness challenge, he contended that the chairperson of the hearing issued the hearing outcome three months after receiving mitigating and aggravating factors instead of the five days as prescribed for by Resolution 1 of 2003.
44. The Respondent led testimony on Nengwanani’script on R57-64. This script had only one tick and the student was allocated 40% indicating that his assignment was late. The Applicant’s testimony was that 40% is allocated to students whose assignments were submitted late. The student feedback was indicated as assignment late and there were no marks at the bottom right corner of the answer sheet. It is evident that the applicant allocated the 40% which he could not account for how he arrived at it except for his reasoning that it was so because it was a late assignment. The respondent’s evidence was that if the assignment is submitted late and there is no valid reason, the student must be allocated a zero mark. If there is a valid reason, the student assignment must be marked. It would not make sense that students are allowed to give reasons for submitting late only for purposes of proving that they submitted late. NK Khoza too fell in this category of learners who the applicant had given 40%. There was no way in which the students would have submitted valid reasons for their late submissions because if it were so they would have had their assignments marked. The marks allocated to the students in question amounted to a guess work by the Applicant and attacked the core of the credibility and integrity of assessment of learner performances. The fact that the Applicant allocated them 40% was not a true reflection of their performance as they deserved nothing from those assignments having not advanced valid reasons for their assignments to be marked and to have their true performance recorded as achievement or not.
45. The Respondent led no evidence regarding the allegations made against the applicant pertaining to the scripts of M. Mnisi, G. Sefolo, NN Msimango and RF Khosa. Therefore, the Respondent failed to prove that the Applicant committed gross dishonesty in this regard.
46. Accordingly, I find that the Applicant did not commit gross dishonesty pertaining the scripts of M Mnisi, G Sefolo, G Sefolo, NN Msimango and RF Khosa.
47. It was also alleged that the Applicant had committed serious act of misconduct of gross dishonesty in that during the 1st semester of 2018 he had given or allowed marks to his students without having complied with the marking guideline for National Certificate Information Processing N4. The Respondent testified through its witnesses that in marking in this certificate accuracy and manipulation are marked and that there is negative marking applied. Accuracy errors are indicated with a red slash and repetitive accuracy errors with a red circle. The display errors are marked with a blue X while repetitive display errors are marked with blue circle. The Applicant conceded that as regards MK Mahubela there was no raw mark and he did not mark the script properly. He never used a red or blue pen and did not apply negative marking. His total did not correspond with the marking on the script and he had given the student 73% but could not recall how he had marked that script. As regards Daisy Moyo, he had allocated her 40% and had used one pen for accuracy and manipulation. He did not have a raw mark written on the script and did not apply negative marking.
48. The Applicant’s concessions as captured above bear testimony to his acceptance of having committed the act of misconduct in not complying with the marking guideline for National Certificate Information Processing N4. Though, he argued at the commencement of the arbitration that the policy only commenced in 2020, he failed to adduce any evidence to that effect. It is surprising to me why a lecturer in his situation would not have known about the marking guideline while lecturing the same subject. His own bundle of documents contained the marking guideline and I find it very odd that he would not have known about this specific marking guideline being the subject matter expert and learning facilitator and assessor in Information Processing. His evidence has not shed any light on where he had obtained his guidelines on marking and/or assessing learner performance in this regard. It could not be that it could have been drawn out of a vacuum when these programmes are registered on the National Qualifications Framework with assessment tools indicating how learner performances have to be assessed. This can be seen on his evasive evidence when he testified that he did not know about the marking guideline as well as assessment tools in this subject. It is no wonder that he sought to evade responsibility by stating that he had lost the marking guideline which had gone missing when his laptop was stolen in an alleged house burglary. No record of such burglary with the SAPS was produced to these proceedings as evidence that his laptop had been stolen. Even if it was, him being the subject matter expert, he would have produced one identical to the missing one.
49. The marking guidelines are significant in ensuring the credibility and integrity of assessment of learner performances especially where negative marking is applied. Learners have to get a true reflection of their performances in terms of achievement and shortcomings. Assessment of learner performance must be a transparent one as learners must know what they are being assessed on so as to know if they have achieved or not. Assessment of learning is not the monopoly of the learning facilitator and/or assessor of learning. It is an inclusive issue to all stakeholders involved in the learning environment. The guidelines have been provided in keeping with that transparency and inclusivity. I, therefore, find that based on his own concessions, the Applicant had committed the offence of allocating marks to students without complying with the marking guideline for National Certificate Information Processing N4.
50. The Applicant was also charged and dismissed for dereliction of duties in that he had failed to mark students’ answer scripts for Task 1 Information Processing N4 and had assigned students to mark each other and in the process submitted false evidence in the execution of his duty. Selaelo testified that lecturers must mark learner performances and not students marking each other especially on an ICASS task that will form part of ICASS final mark. In terms of ICASS marking is undertaken by the lecturer before moderation is undertaken. On the other hand, the Applicant testified that he had given students scripts to be marked among the students themselves and that it was allowed as peer assessment. However, peer assessment is not applicable for tasks that are ICASS final mark. It is applicable only during the learning facilitation process. Task 1 was to contribute to the ICASS final mark and thus peer assessment is not allowed. Students are not trained assessors of a specialised field, and only facilitators of learning in the form of lecturers are assessors. It cannot be expected that a leaner assesses his peer on an outcome that will finally decide the learner’s achievement on a particular subject. It is common cause between parties emerging from evidence that it is the responsibility of the lecturer to assess learner performance. Dereliction of duties is a form of gross negligence. It is abdication of one’s responsibility. The fact that the Applicant was in class when the students were marking each other’s scripts does not mean that he had not abdicated his responsibility to mark the students’ scripts. He had done so when he made students to mark each other on a task that will form part of the final ICASS mark. I accordingly find that the applicant had committed the offence of dereliction of duties as charged.
51. The respondent has not led any evidence regarding the charges that the applicant had refused to carry out a lawful order or routine instruction without just or reasonable cause in that during the 1st semester of 2018 he had not submitted subject file and assessment file for both Information Processing N4 and Introduction to Information Processing N4 in line with Section 9 and item 9.1 and 9.2 respectively of the ICASS Guideline. Selaelo testified that he had requested senior lecturers to send all tasks and memorandums with students’ scripts to him but that they did not. He had then requested same directly from lecturers and they submitted only the scripts. There was no evidence that the Applicant had refused or failed to submit files as alleged and I, therefore, find that the Respondent has failed to discharge its onus that the applicant is guilty of the insubordination charges.
52. Based on the aforegoing, I find that the dismissal of the applicant was substantively fair. The acts of misconduct as committed by the Applicant were of a serious nature and put the reputation of the Respondent as provider of higher learning at risk in terms of the quality and integrity of its qualifications. The acts of misconduct on the part of the Applicant do not instill public confidence in the institution and the qualifications it offers. I also agree given the consequences of the Applicant’s actions; that an employment relationship of trust cannot continue to exist between the parties. The respondent as an institution of higher learning has to trust that assessors of learner performance have to be truthful and record accurate and true learner performances and be able to account as to how they have reached certain conclusions regarding learner performances. The industries into which these learners are to be unleashed at the end of their learning period has to continue to have trust in the products produced by the institution. It will be unreasonable to expect the Respondent to put up with the acts of misconduct of the Applicant and dismissal was therefore an appropriate sanction under the circumstances.
53. The Applicant had contended that his dismissal was procedurally unfair in that the disciplinary hearing chairperson took three months to issue the hearing outcome instead of the five days after receiving aggravating and mitigating factors as provided for by Resolution 1 of 2003. The Respondent bears the onus to prove that the dismissal of the applicant was procedurally fair. The Respondent has not led any evidence in respect of the Applicant’s contention and I accept that three months is a period highly in excess of the said five days as provided for Resolution 1 of 2003. The respondent has thus breached a collective agreement between the parties as regards the communication of the Applicant’s sanction. No reasons have been advanced as to why it had taken that long for the sanction to be communicated. On the other hand, the Applicant has not shown how this delayed communication of a sanction may have prejudiced him. Out of respect of the parties’ collective agreement in Resolution 1 of 2003, I find that an equivalent of one month salary will be just and equitable as compensation for the breach of procedure in relation to the communication of sanction to the Applicant outside the prescribed time-period of five days.
Award
54. The dismissal of the applicant was procedurally unfair but substantively fair.
55. The applicant’s sought relief of reinstatement is denied.
56. The Respondent is ordered to pay compensation for procedural unfairness to the Applicant equivalent to one month’s salary amounting to R26 400.00 into the applicant’s bank account as known to the Respondent by no later than 15 February 2021.
57. The amount in clause 55 of this award shall attract interest at the rate of 15.5% in the event that it is paid on any other date after.
Signature:
ELRC Panelist: Mathabo Makwela
Sector: