PSES987-18/19GP
PSES987-18/19GP
Award Date:
11 October 2019
Case Number: PSES987-18/19GP
Province: Gauteng
Applicant: NEHAWU OBO LESEJANE, S
Respondent: DEPARTMENT OF HIGHER EDUCATION AND TRAINING – GAUTENG
Issue: Unfair Dismissal - Misconduct
Venue: South West Gauteng TVET College
Award Date: 11 October 2019
Arbitrator: Mohau Clement Ntaopane
Case Number: PSES987-18/19GP
Arbitrator: Mohau Clement Ntaopane
Date of Award: 11 October 2019
In the ARBITRATION between
NEHAWU OBO LESEJANE, S
(Applicant)
And
DEPARTMENT OF HIGHER EDUCATION AND TRAINING – GAUTENG
(Respondent)
Applicant’s legal representative: Raashida Malatji
Rep/Applicant’s address:
Telephone:
Fax:
E-mail: Raashida@nehawu.org.za
Respondent’s representative: Shawn Carney
Rep/Respondent’s address:
Telephone:
Fax: (086) 176 8849
E-mail: carneys@swgc.co.za
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between Mr Seiso Lesejane, as represented by NEHAWU, the applicant, and Department of Higher Education – Gauteng, the respondent.
[2] The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(iii) of the Labour Relations Act, 1995 as amended (“the LRA”) and Clause 17.2.1 of the ELRC Dispute Resolution Procedures. The award is issued in terms of Clause 18.5.1 of the ELRC Dispute Resolution Procedures.
[3] The arbitration was heard on 30 May 2019 and 30 September 2019 at the South West Gauteng TVET College in Soweto. The arbitration was postponed a number of times, for technical reasons, amongst others. The applicant was represented by NEHAWU Official, Ms. Raashida Malatji, while the respondent was represented by Mr. Shawn Carney of the South West Gauteng TVET College.
[4] The process was conducted in English and digitally recorded. The respondent submitted a bundle of documents into the record. Parties submitted arguments in writing.
ISSUES TO BE DECIDED
[5] Only the substantive fairness of the dismissal was in dispute as the applicant disputed the commission of the misconduct as alleged, asserting that there was no rule against what was assistance offered to a struggling student.
[6] The relief to be awarded is also in issue.
BACKGROUND TO THE DISPUTE (COMMON CAUSE FACTS)
[7] The applicant was employed as a lecturer at SWGC TVET, Technisa Campus from 30 January 2006 until 14 November 2018. He earned a monthly gross salary of R26 401-22.
[8] He was dismissed on 25 January 2018 for soliciting monies from a student. An appeal of the dismissal was filed on 30 January 2018. The dismissal, however, was upheld with effect from 14 November 2018.
[9] A dispute was referred by the applicant to the GPSSBC on 26 December 2018, which transferred the matter to the ELRC. A ruling condoning the late referral was issued on 11 April 2019 and a conciliation and pre-arbitration conference was held on 29 April 2019.
SURVEY OF THE RELEVANT EVIDENCE
EMPLOYER’S EVIDENCE
[10] Ms. Anna Katarina Cotzer, an administrator at the Technisa Campus, was the first witness to be called by the respondent. She testified that for 30 years her duties in relation to assignments involved receiving them from students, capturing them on the system and forwarding them to the markers. She confirmed that her signature was attached to the sworn statement on page 69 in terms of which she had stated that on 6 March 2017 she was contacted by a student, Mr. Segale, via telephone reporting that the applicant had asked for a bribe from him for better marks and that on 10 March 2017 another student, Ms. Phakoe also contacted her reporting the same conduct. She requested that they put these complaints in writing and on pages 70 and 71 were the emails she received from the students and forwarded to Mr. Maseko, the HOD of Distance Learning. She referred to pages 71 to 110, which were the mathematics assignments that had been submitted by the students and had been marked by the applicant.
[11] During cross-examination it was put to Ms. Coetzer that the applicant would testify that he had been assisting students for a long time and had never derived any benefit from it, the only thing he requested being that he be bought “data” as he could not assist them in person as they were far away from the campus. Ms. Coetzer could not comment on the statement. When it was put to her that the applicant could not have offered to “fix” the marks because after marking, the assignments are moderated, Ms. Coetzer disputed that the assignments are moderated, stating that after marking they are loaded on the system and forwarded to the students. Ms. Coetzer was asked to recount exactly what was said by the students, particularly Phakoe, to which she responded that she could not remember the exact words, the incident having happened a long time ago, but stated that the student said the applicant wanted a bribe in the form of money. When asked whether there was policy barring lecturers from assisting students she responded that she was not aware of such a policy.
[12] Mr. Lehlohonolo Linda Sithebe, ICT supervisor at Head Office, was the second witness to be called by the respondent. He testified that for 15 years was involved in assisting colleagues with internet connectivity and phones across companies. He confirmed that his signature was attached to the sworn statement on page 111 in terms of which he had stated that on 17 May 2017 he was requested by Mr. Mahasha, Labour Relations Officer, to extract the telephone records from the applicant’s system and that he went into the PBX system on 06 June 2017 and printed the records that appeared on pages 112 to 121. He drew our attention on page 112 to the fact that on 2017/03/10 at 8:57:50, there was an outgoing call from the applicant’s phone in the office to the cellphone number that appears therein and that the call was answered. On page 116 a call was made from the applicant’s extension on 2017/03/06 at 7:17 to the cellphone number that appears therein. Mr. Mahasha had requested that the records printed be for a specific period. Mr.Sithebe explained that the duration of the calls, however, would not reflect on the PBX print out.
[13] Ms. Thopi Phakoe was the third and last witness to be called by the respondent. She testified that in respect of the academic year 2017/18 she was enrolled for long distance learning with the campus studying, amongst others, Mathematics, and would submit assignments in order to earn a term mark qualifying her to write exams. She confirmed that her signature was attached to the sworn statement on pages 72 to 73. On the statement she stated that when she asked how he could assist he had told her not to beat about the bush, which she understood to have meant that she must pay him money. The telephone call ended when she told the applicant that she was fine with her marks; she did not, however, remember what mark she got. She confirmed that she sent to Ms. Coetzer, one of the markers she always contacted when she would enquire about her marks, the email that appeared on page 70 and that the email was sent at the request of Ms. Coetzer when she first contacted her about the matter telephonically. Ms. Phakoe also confirmed that the assignment appearing on pages 74 to 110 was the assignment the applicant contacted her about. She submitted that she had never had any contact with any of the markers and that this was the first time such contact as from the applicant was made to her. Nor was she aware that the applicant was the one marking the assignment until he contacted her.
[14] In cross-examination it was pointed out to Ms. Phakoe that she could recall everything else but the mark she got for the assignment and her response was that she never received her marks from the college. When asked whether she failed the examination she responded that she never wrote the examination because she was told by Ms. Coetzer that there were communication problems between the college where she sat for exams and South West Gauteng TVET College. She was then asked whether she has since enquired about her permit to write the examination and she responded that she had left the matter. It was then put to the applicant that she did not write the examination because she failed the assignment, to which she did not comment. It was put to Ms. Phakoe that the applicant would testify that he only offered assistance, but that he did not offer any marks she did not earn. Her response was that the applicant did not offer assistance; he specifically said in Sotho, “ke bua ka tjhelete”. When she asked him what he meant when he said she must not beat about the bush. Ms. Phakoe also stated that had this been the normal procedure, she surely would have been made aware when she enrolled. She was referred to her earlier testimony that Ms. Coetzer was a marker and asked how she knew this. Her response was that Ms. Coetzer would mark her supervisory management assignments. It was then put to her that Ms. Coetzer had testified earlier that her duties only involved receiving assignments, capturing them and forwarding them to markers. To this Ms. Phakoe responded that she did not know what position Ms. Coetzer occupied and that all she knew was that she was the person she usually contacted about her marks and when to write exams.
EMPLOYEE’S EVIDENCE
[15] Mr. Seiso Lesejane was the first witness to testify in support of his case. He testified that while marking the Mathematics N4, 5 and 6 scripts he came across Ms. Phakoe’s two assignments and noticed that she did not perform well. He took the initiative by contacting her telephonically on the number appearing on the assignment cover in order to intervene and he tried to do this because there was only a short time before they wrote exams, hence Ms. Phakoe did not get the script. His intention was to inform her that she would need to buy her airtime as that was the only way he could assist her and she was not interested in hearing what he proposed. Mr. Lesejane held the view that the fact that one was studying long distance and essentially on their own did not mean they could not be assisted. He also was of the view having not been told of the procedures did not mean they were not in place and submitted that that Ms. Phakoe must not have read the handbook given to students when they enrolled regulating how they should behave. All he knew was that after he marked the scripts they are forwarded to Ms. Coetzer and as to what happens to them thereafter he did not know. He did, however, expect that the scripts should be moderated, for verification purposes and to avoid situations such as the one currently unfolding. He disputed having offered to improve Ms. Phakoe’s marks because when the scripts are moderated someone will be able to see if undeserved marks have been allocated. Mr. Lesejane held the view that Ms. Phakoe’s testimony was riddled with inconsistencies.
[17] In cross-examination Mr. Lesejane reiterated that he could not offer to give Ms. Phakoe extra marks as the assignment would be moderated after he marked it. When asked whether he did say she should not beat about the bush, his response was that he did not say that in so many words, what he meant was that she should not waste his time as he had a lot of work to do. It was then put to Mr. Lesejane that he was aware that he was contravening a rule when he said, “don’t beat about the bush”. He responded that he did not think so because he expected a straight answer from Ms. Phakoe as to whether he should or should not assist her, and that only if there was an agreement would the conversation proceed. Mr. Lesejane was referred to his earlier testimony that there was handbook handed out to students and asked whether it contained a provision covering this issues. His response was that he was misunderstood because he stated that the handbook regulates how students must behave on campus. Mr. Lesejane was asked why he did not attempt to contact Ms. Phakoe further via email after she dropped the phone and his response was that it was clear that she did not want his assistance, as such it was not necessary for him to make further contact. Mr. Lesejane submitted that he was not aware of a policy prohibiting him from assisting a struggling student to get better results.
[18] Mr. Thato Maghalo, an employee at South West Gauteng TVET College, was the second and last witness to testify in support of the applicant’s case. He testified that in 2009 he wanted to upgrade his matric marks in order to register for a B.Sc. with UNISA. Therefore he approached the applicant who he knew to be a lecturer in mathematics. With the applicant’s assistance in the form of teaching him with the use of textbooks and examples, he was able to achieve a pass mark of 58%. Mr. Maghalo submitted that he was not the only person the applicant has assisted and referred to Mr. Nkau and a security lady as having been recipients of similar assistance. In cross-examination Mr. Maghalo confirmed that in 2009 the applicant was not his lecturer. He also submitted that he did not think it strange to approach a full time teacher to assist him since the applicant would only assist him over the weekend, as such it was not an official arrangement.
.ANALYSIS OF EVIDENCE AND ARGUMENT
[19] Section 192 (2) of the LRA provides that if the existence of dismissal is established, the employer must prove that the dismissal is fair.
[20] Section 188 (1) of the LRA provides that a dismissal that is not automatically unfair, is unfair if the employer fails to prove-
a) that the reason for the dismissal is a fair reason -
(i) related to the employee’s conduct or capacity; or
(ii) …. and
b) that the dismissal was effected in accordance with a fair procedure.
It was common cause that the fairness of the pre-dismissal procedure was not in dispute.
Arguments
[21] In its argument the respondent referred to Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (211) 32 ILJ (LC) in directing the commissioner on how to resolve a factual dispute. The respondent held the view that it had proven on a balance of probabilities that the applicant committed serious misconduct and was aware of the rules governing his terms of employment and the disciplinary code. This was supported by the assertion that the applicant had failed to present any witnesses to support his version of events, while his own testimony was contradictory and untruthful, therefore not credible. The respondent also pointed out that the applicant did not dispute that he said to Ms. Phakoe that she must not beat about the bush. Ms Phakoe was considered to have been truthful and without a motive and with reference to Gaga v Anglo Platinum and Others, 20.18, the respondent submitted that her testimony should be accepted. The applicant’s witness was considered to have presented irrelevant evidence as it was based on the applicant’s character and did not address the matter of the charge of soliciting monies.
[22] The respondent submitted that the version presented by its three witnesses and the documentary evidence carried more weight on a balance of probabilities, proving that the onus was discharged that the applicant had committed misconduct. The respondent held that the applicant had a common law fiduciary duty to act in the best interest of his employer as a public institution, which he failed to do. The respondent argued further that the applicant breached the South African Council for Educators, Code of Professional Ethics, paragraph 3, 3.12, in terms of which an educator does not abuse the position he or she holds for financial, political or personal gain. The respondent also referred to Resolution 1 of 2003, Disciplinary Code and Procedures for the Public Service in terms of which he may not steal, bribe or commit fraud. As such the respondent was of the view that the working and trust relationship between the applicant and the respondent had been irreparably broken.
[23] In its argument, the applicant submitted that the respondent failed to prove that there was a rule against teaching correspondence/long distance/part-time students in the educator’s spare time, nor that the applicant was aware of it. The applicant held the view that the respondent abandoned the issue when the applicant’s witness, also employed by the respondent, testified that he was not aware of such a rule. The applicant also held the view that its version that Ms. Phakoe was not asked for anything other than for her to fund airtime and data in order to communicate with her was not challenged, nor was there an alternative version presented in contradiction. The assumption by Ms. Phakoe was held by the applicant to have been unsubstantiated and it was pointed out that the words she used were disputed, while the words remembered by the applicant were to the effect that she must get to the point. The only funding having been mentioned according to the applicant had only related to Ms. Phakoe funding the purchase of “airtime and data”.
[24] The applicant had viewed the testimony of Ms. Phakoe as unreliable as she had responded to the submission that after assignments are marked they are moderated by saying that she should have been made aware of that protocol. It was also pointed out that Ms. Phakoe had stated that Ms. Coetzer was a marker and when questioned on it her response showed that she had presumed that Ms. Coetzer was a marker. The applicant referred to Martin & East (Pty) Ltd v Bulbring N.O. and Others (C1051/14) [2016] ZALCCT 2; [2016] 5 BLLR 475 (LC) – para 26 in terms of which an employee may be dismissed should they fail to discharge their fiduciary duty to act in good faith and honestly towards his employer and submitted that the applicant by attempting to assist a struggling student had acted in good faith towards his employer. As such the applicant prayed that an order of retrospective reinstatement be ordered in response to a finding that the dismissal was not for a fair reason.
Probabilities
[21] Schedule 2 of the Employment of Educators Act, 76 of 1998 (“the Act”) makes provision for a Code of Good Practice in terms of which the Code of Good Practice: Dismissal contained in Schedule 8 of the LRA, insofar as it relates to discipline, constitutes part of that code and procedure. Pursuant to section 188(1)(a)(i) of the LRA, Item 7 of the Code of Good Practice: Dismissal provides that any person who is determining whether a dismissal for misconduct is unfair should consider whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; whether such rule was known or should reasonably be expected to have been known, and if contravened, whether or not dismissal was an appropriate sanction for the contravention of the rule or standard.
[23] In Emfuleni Local Municipality v SALGBC & Others the court outlined the steps that the arbitrator should follow in evaluating conflicting versions before him/her as follows:
• In misconduct disputes the employer need only show that, on all the evidence presented by both parties, its version is more probable than the employee’s version.
• While the overall onus never shifts from the employer, the need to present or counter evidence may rest on different parties.
• Once the employer has proved its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise.
• An employee is not entitled to the benefit of the doubt as to the convincing nature of his or her explanation. On raising a particular defense, an evidentiary burden falls on the employee to establish that his or her version is likely. It is not necessary for the employer to adduce evidence to disprove positively a defense, especially if the defense is within the unique knowledge of the employee.
• An employer must prove its own case on a balance of probabilities. If it does so, it therefore flows that the employee’s case is false.
[21] The applicant’s argument with regard to the rule was misguided in that it was not the version of the respondent or indeed the charge against him that he was guilty of assisting a correspondence or long-distance learner in his spare-time; it was the applicant’s version that this was all he did, while the charge against him was for soliciting money from the student in exchange for better marks. It was therefore not for the respondent to prove that there was a rule against assisting in one’s spare-time as this would not have gone anywhere towards satisfying the requirements of Schedule 8 since this was not what the applicant was dismissed for. The respondent at times unwittingly followed this red-herring by repeatedly putting it to the applicant that he did not get any permission from his superiors, nor was there a policy in terms of which he was allowed to contact long-distance learners. The respondent has not argued that this line of questioning aimed to reveal the unreliable witness the applicant was. Hence this immaterial part of the evidence was largely not considered in this award as it has nothing to do with what the applicant was dismissed for. In Fidelity Cash Management Services v CCMA and others it was held that fairness is determined mostly on the basis of the reason for the dismissal which the employer furnished at the time of the dismissal. It is therefore the evidence dealing with the reason for the dismissal that shall concern this analysis.
[22] From the arguments both parties seem to agree that the applicant was seized with the fiduciary duty to act in good faith in the course of performing his duties. The respondent’s first witness, Ms. Coetzer disputed the submission that assignments are moderated after marking. As an allegation by the applicant, it was for the applicant to prove. The applicant in his evidence-in- chief initially stated that he did not know what happens to the scripts after he has marked them. He then stated that he expected that they should be moderated because then situations such as this could be avoided. From then on the applicant would reiterate the impossibility of him tampering with the marks precisely because the scripts are moderated. Ms. Coetzer had been admitted as a witness in her capacity as the administrator dealing with assignments. In other words she would have first hand knowledge of the process involved in the marking and allocation of marks to assignments. The applicant on the other hand did not appear to know for sure whether assignments are moderated, the claim that they are only appearing to be something he would expect to happen. That assignments are moderated seemed to be something to hold on to as it rendered the probability of tampering with marks highly unlikely given that someone else would still examine the assignment. At least this is what the applicant was of the view would be the natural impression created. The applicant was, however, not convincing in his assertion that assignments are moderated.
[23] If assignments are therefore not moderated, the argument that marks could not be tampered with falls away and what remains is the probability of what happened during the call between the applicant and Ms. Phakoe. The applicant made a concession that although he did not say “don’t beat about the bush” in that many words, what he expressed to Ms. Phakoe was that she must not waste his time. The sequence of the conversation then given that according to both parties the call was ended short, according to Ms. Phakoe it was after he had asked for money, while according to the applicant it was after he had said she should not waste his time, means that if it is accepted that the applicant only said “do not waste my time”, this was said in response to something. Ms. Phakoe stated that the conversation never got to how much or how payment would be effected, while the applicant stated that the conversation never got him explaining how his rendering his assistance would be effected. Therefore the applicant arguing that the version that he merely wanted airtime or data to be funded was not disputed cannot be sustained as by the applicant’s own testimony, the conversation never got there since Ms. Phakoe ended the call without wanting to know how things would work. If then he said “do not waste my time”, the question then becomes, to what was this in response? Ms. Phakoe responded well when she said under cross-examination that the applicant should have then been clear from the beginning if we are to accept his version, because if someone is offering assistance and you ask how, and their response is that you should not waste their time, it sounds as though they expect you to know that this is a quip pro quo situation. The concession by the applicant cannot be reconciled with how the call unfolded even by his own version and as such was effectively fatal to his version.
[24] The applicant’s witness did not in my view add any value to the proceedings in that having supported the version that the applicant offers his assistance in his spare time, it did very little to dispel the accusation against him in light of the internal contradictions in the applicant’s own testimony and the minimal impact his version served to discredit that of the respondent’s first and third witness. The applicant submitted that Ms. Phakoe’s testimony was inconsistent at times, however, he substantiated this with an explanation about a handbook that went nowhere. The referral to a student handbook and the timing of its mention was as haphazard as it was ill conceived. The applicant mentioned it seemingly to point out that Ms. Phakoe claimed to not know about procedures relating to lecturers assisting students when she might not have read the handbook. When he was later asked whether the policy around assistance of students was contained in the handbook he stated that the handbook only regulates student conduct on campus. Most of the applicant’s testimony appears to have been made up as he went or at times comprised trying to remember a rehearsed version as he would have to be asked questions in order to remember what his version is. In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others the Court held that the question to be answered is whether the probabilities favour the party bearing the onus of proof. It is my finding that on the balance of probabilities the respondent’s version is more probable.
Appropriateness of the dismissal
[25] Section 17(1)(a) and (f) of the Act, recognizes as serious misconduct where the educator is found guilty of theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports, or causes a learner or student to perform any acts as those contemplated. Section 18(1)(a) of the Act recognizes as serious misconduct that results in the breakdown of the employment relationship where the educator fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship. While subrule 1(ee) recognizes an act of dishonesty as another form of misconduct that amounts to a breakdown in the employment relationship.
[26] The Code as contained in Schedule 2 of the Act provides that in dealing with misconduct contemplated in section 18, the employer must assess the seriousness of the alleged misconduct by considering –
(a) the extent to which the misconduct impacts on the work of the Department of Education or provincial department of education, or the public school, public further education and training institution or public adult learning centre;
(b) the nature of the educator’s work and responsibilities; and
(c) the circumstances in which the alleged misconduct took place.
In terms of Subsection 5(a) of the Act, an educator may be dismissed if found guilty of dishonesty, as contemplated in section 1(ee).
[27] The dismissal of the applicant is therefore found to have been substantively fair. As I have already stated, both parties acknowledged the fact that the applicant had a fiduciary duty to act in good faith towards his employer and that failing to do so will justify dismissal. The applicant definitely did not act in good faith when he sought to offer a student marks that she did not earn in exchange for a bribe. The applicant not only placed the integrity of the respondent in jeopardy, and his own profession, he also sought to do the student a disservice. It is therefore reassuring that such opportunities are not taken up by those with enough of a conscience to even recognize the need to report such incidents. The student should be applauded for accepting her bad marks as opposed to contributing to a problem the respondent can never know how deep it goes, but can take solace in the fact that it has been brought to its attention and that one of its perpetrators has been removed from the system.
AWARD
[28] The dismissal of the applicant, Seiso Lesejane, was substantively fair.
[29] The applicant’s claim is dismissed.
[30] I make no order as to costs.
Signature:
ELRC Panellist: Mohau Clement Ntaopane
Province: Gauteng
Applicant: NEHAWU OBO LESEJANE, S
Respondent: DEPARTMENT OF HIGHER EDUCATION AND TRAINING – GAUTENG
Issue: Unfair Dismissal - Misconduct
Venue: South West Gauteng TVET College
Award Date: 11 October 2019
Arbitrator: Mohau Clement Ntaopane
Case Number: PSES987-18/19GP
Arbitrator: Mohau Clement Ntaopane
Date of Award: 11 October 2019
In the ARBITRATION between
NEHAWU OBO LESEJANE, S
(Applicant)
And
DEPARTMENT OF HIGHER EDUCATION AND TRAINING – GAUTENG
(Respondent)
Applicant’s legal representative: Raashida Malatji
Rep/Applicant’s address:
Telephone:
Fax:
E-mail: Raashida@nehawu.org.za
Respondent’s representative: Shawn Carney
Rep/Respondent’s address:
Telephone:
Fax: (086) 176 8849
E-mail: carneys@swgc.co.za
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between Mr Seiso Lesejane, as represented by NEHAWU, the applicant, and Department of Higher Education – Gauteng, the respondent.
[2] The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(iii) of the Labour Relations Act, 1995 as amended (“the LRA”) and Clause 17.2.1 of the ELRC Dispute Resolution Procedures. The award is issued in terms of Clause 18.5.1 of the ELRC Dispute Resolution Procedures.
[3] The arbitration was heard on 30 May 2019 and 30 September 2019 at the South West Gauteng TVET College in Soweto. The arbitration was postponed a number of times, for technical reasons, amongst others. The applicant was represented by NEHAWU Official, Ms. Raashida Malatji, while the respondent was represented by Mr. Shawn Carney of the South West Gauteng TVET College.
[4] The process was conducted in English and digitally recorded. The respondent submitted a bundle of documents into the record. Parties submitted arguments in writing.
ISSUES TO BE DECIDED
[5] Only the substantive fairness of the dismissal was in dispute as the applicant disputed the commission of the misconduct as alleged, asserting that there was no rule against what was assistance offered to a struggling student.
[6] The relief to be awarded is also in issue.
BACKGROUND TO THE DISPUTE (COMMON CAUSE FACTS)
[7] The applicant was employed as a lecturer at SWGC TVET, Technisa Campus from 30 January 2006 until 14 November 2018. He earned a monthly gross salary of R26 401-22.
[8] He was dismissed on 25 January 2018 for soliciting monies from a student. An appeal of the dismissal was filed on 30 January 2018. The dismissal, however, was upheld with effect from 14 November 2018.
[9] A dispute was referred by the applicant to the GPSSBC on 26 December 2018, which transferred the matter to the ELRC. A ruling condoning the late referral was issued on 11 April 2019 and a conciliation and pre-arbitration conference was held on 29 April 2019.
SURVEY OF THE RELEVANT EVIDENCE
EMPLOYER’S EVIDENCE
[10] Ms. Anna Katarina Cotzer, an administrator at the Technisa Campus, was the first witness to be called by the respondent. She testified that for 30 years her duties in relation to assignments involved receiving them from students, capturing them on the system and forwarding them to the markers. She confirmed that her signature was attached to the sworn statement on page 69 in terms of which she had stated that on 6 March 2017 she was contacted by a student, Mr. Segale, via telephone reporting that the applicant had asked for a bribe from him for better marks and that on 10 March 2017 another student, Ms. Phakoe also contacted her reporting the same conduct. She requested that they put these complaints in writing and on pages 70 and 71 were the emails she received from the students and forwarded to Mr. Maseko, the HOD of Distance Learning. She referred to pages 71 to 110, which were the mathematics assignments that had been submitted by the students and had been marked by the applicant.
[11] During cross-examination it was put to Ms. Coetzer that the applicant would testify that he had been assisting students for a long time and had never derived any benefit from it, the only thing he requested being that he be bought “data” as he could not assist them in person as they were far away from the campus. Ms. Coetzer could not comment on the statement. When it was put to her that the applicant could not have offered to “fix” the marks because after marking, the assignments are moderated, Ms. Coetzer disputed that the assignments are moderated, stating that after marking they are loaded on the system and forwarded to the students. Ms. Coetzer was asked to recount exactly what was said by the students, particularly Phakoe, to which she responded that she could not remember the exact words, the incident having happened a long time ago, but stated that the student said the applicant wanted a bribe in the form of money. When asked whether there was policy barring lecturers from assisting students she responded that she was not aware of such a policy.
[12] Mr. Lehlohonolo Linda Sithebe, ICT supervisor at Head Office, was the second witness to be called by the respondent. He testified that for 15 years was involved in assisting colleagues with internet connectivity and phones across companies. He confirmed that his signature was attached to the sworn statement on page 111 in terms of which he had stated that on 17 May 2017 he was requested by Mr. Mahasha, Labour Relations Officer, to extract the telephone records from the applicant’s system and that he went into the PBX system on 06 June 2017 and printed the records that appeared on pages 112 to 121. He drew our attention on page 112 to the fact that on 2017/03/10 at 8:57:50, there was an outgoing call from the applicant’s phone in the office to the cellphone number that appears therein and that the call was answered. On page 116 a call was made from the applicant’s extension on 2017/03/06 at 7:17 to the cellphone number that appears therein. Mr. Mahasha had requested that the records printed be for a specific period. Mr.Sithebe explained that the duration of the calls, however, would not reflect on the PBX print out.
[13] Ms. Thopi Phakoe was the third and last witness to be called by the respondent. She testified that in respect of the academic year 2017/18 she was enrolled for long distance learning with the campus studying, amongst others, Mathematics, and would submit assignments in order to earn a term mark qualifying her to write exams. She confirmed that her signature was attached to the sworn statement on pages 72 to 73. On the statement she stated that when she asked how he could assist he had told her not to beat about the bush, which she understood to have meant that she must pay him money. The telephone call ended when she told the applicant that she was fine with her marks; she did not, however, remember what mark she got. She confirmed that she sent to Ms. Coetzer, one of the markers she always contacted when she would enquire about her marks, the email that appeared on page 70 and that the email was sent at the request of Ms. Coetzer when she first contacted her about the matter telephonically. Ms. Phakoe also confirmed that the assignment appearing on pages 74 to 110 was the assignment the applicant contacted her about. She submitted that she had never had any contact with any of the markers and that this was the first time such contact as from the applicant was made to her. Nor was she aware that the applicant was the one marking the assignment until he contacted her.
[14] In cross-examination it was pointed out to Ms. Phakoe that she could recall everything else but the mark she got for the assignment and her response was that she never received her marks from the college. When asked whether she failed the examination she responded that she never wrote the examination because she was told by Ms. Coetzer that there were communication problems between the college where she sat for exams and South West Gauteng TVET College. She was then asked whether she has since enquired about her permit to write the examination and she responded that she had left the matter. It was then put to the applicant that she did not write the examination because she failed the assignment, to which she did not comment. It was put to Ms. Phakoe that the applicant would testify that he only offered assistance, but that he did not offer any marks she did not earn. Her response was that the applicant did not offer assistance; he specifically said in Sotho, “ke bua ka tjhelete”. When she asked him what he meant when he said she must not beat about the bush. Ms. Phakoe also stated that had this been the normal procedure, she surely would have been made aware when she enrolled. She was referred to her earlier testimony that Ms. Coetzer was a marker and asked how she knew this. Her response was that Ms. Coetzer would mark her supervisory management assignments. It was then put to her that Ms. Coetzer had testified earlier that her duties only involved receiving assignments, capturing them and forwarding them to markers. To this Ms. Phakoe responded that she did not know what position Ms. Coetzer occupied and that all she knew was that she was the person she usually contacted about her marks and when to write exams.
EMPLOYEE’S EVIDENCE
[15] Mr. Seiso Lesejane was the first witness to testify in support of his case. He testified that while marking the Mathematics N4, 5 and 6 scripts he came across Ms. Phakoe’s two assignments and noticed that she did not perform well. He took the initiative by contacting her telephonically on the number appearing on the assignment cover in order to intervene and he tried to do this because there was only a short time before they wrote exams, hence Ms. Phakoe did not get the script. His intention was to inform her that she would need to buy her airtime as that was the only way he could assist her and she was not interested in hearing what he proposed. Mr. Lesejane held the view that the fact that one was studying long distance and essentially on their own did not mean they could not be assisted. He also was of the view having not been told of the procedures did not mean they were not in place and submitted that that Ms. Phakoe must not have read the handbook given to students when they enrolled regulating how they should behave. All he knew was that after he marked the scripts they are forwarded to Ms. Coetzer and as to what happens to them thereafter he did not know. He did, however, expect that the scripts should be moderated, for verification purposes and to avoid situations such as the one currently unfolding. He disputed having offered to improve Ms. Phakoe’s marks because when the scripts are moderated someone will be able to see if undeserved marks have been allocated. Mr. Lesejane held the view that Ms. Phakoe’s testimony was riddled with inconsistencies.
[17] In cross-examination Mr. Lesejane reiterated that he could not offer to give Ms. Phakoe extra marks as the assignment would be moderated after he marked it. When asked whether he did say she should not beat about the bush, his response was that he did not say that in so many words, what he meant was that she should not waste his time as he had a lot of work to do. It was then put to Mr. Lesejane that he was aware that he was contravening a rule when he said, “don’t beat about the bush”. He responded that he did not think so because he expected a straight answer from Ms. Phakoe as to whether he should or should not assist her, and that only if there was an agreement would the conversation proceed. Mr. Lesejane was referred to his earlier testimony that there was handbook handed out to students and asked whether it contained a provision covering this issues. His response was that he was misunderstood because he stated that the handbook regulates how students must behave on campus. Mr. Lesejane was asked why he did not attempt to contact Ms. Phakoe further via email after she dropped the phone and his response was that it was clear that she did not want his assistance, as such it was not necessary for him to make further contact. Mr. Lesejane submitted that he was not aware of a policy prohibiting him from assisting a struggling student to get better results.
[18] Mr. Thato Maghalo, an employee at South West Gauteng TVET College, was the second and last witness to testify in support of the applicant’s case. He testified that in 2009 he wanted to upgrade his matric marks in order to register for a B.Sc. with UNISA. Therefore he approached the applicant who he knew to be a lecturer in mathematics. With the applicant’s assistance in the form of teaching him with the use of textbooks and examples, he was able to achieve a pass mark of 58%. Mr. Maghalo submitted that he was not the only person the applicant has assisted and referred to Mr. Nkau and a security lady as having been recipients of similar assistance. In cross-examination Mr. Maghalo confirmed that in 2009 the applicant was not his lecturer. He also submitted that he did not think it strange to approach a full time teacher to assist him since the applicant would only assist him over the weekend, as such it was not an official arrangement.
.ANALYSIS OF EVIDENCE AND ARGUMENT
[19] Section 192 (2) of the LRA provides that if the existence of dismissal is established, the employer must prove that the dismissal is fair.
[20] Section 188 (1) of the LRA provides that a dismissal that is not automatically unfair, is unfair if the employer fails to prove-
a) that the reason for the dismissal is a fair reason -
(i) related to the employee’s conduct or capacity; or
(ii) …. and
b) that the dismissal was effected in accordance with a fair procedure.
It was common cause that the fairness of the pre-dismissal procedure was not in dispute.
Arguments
[21] In its argument the respondent referred to Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (211) 32 ILJ (LC) in directing the commissioner on how to resolve a factual dispute. The respondent held the view that it had proven on a balance of probabilities that the applicant committed serious misconduct and was aware of the rules governing his terms of employment and the disciplinary code. This was supported by the assertion that the applicant had failed to present any witnesses to support his version of events, while his own testimony was contradictory and untruthful, therefore not credible. The respondent also pointed out that the applicant did not dispute that he said to Ms. Phakoe that she must not beat about the bush. Ms Phakoe was considered to have been truthful and without a motive and with reference to Gaga v Anglo Platinum and Others, 20.18, the respondent submitted that her testimony should be accepted. The applicant’s witness was considered to have presented irrelevant evidence as it was based on the applicant’s character and did not address the matter of the charge of soliciting monies.
[22] The respondent submitted that the version presented by its three witnesses and the documentary evidence carried more weight on a balance of probabilities, proving that the onus was discharged that the applicant had committed misconduct. The respondent held that the applicant had a common law fiduciary duty to act in the best interest of his employer as a public institution, which he failed to do. The respondent argued further that the applicant breached the South African Council for Educators, Code of Professional Ethics, paragraph 3, 3.12, in terms of which an educator does not abuse the position he or she holds for financial, political or personal gain. The respondent also referred to Resolution 1 of 2003, Disciplinary Code and Procedures for the Public Service in terms of which he may not steal, bribe or commit fraud. As such the respondent was of the view that the working and trust relationship between the applicant and the respondent had been irreparably broken.
[23] In its argument, the applicant submitted that the respondent failed to prove that there was a rule against teaching correspondence/long distance/part-time students in the educator’s spare time, nor that the applicant was aware of it. The applicant held the view that the respondent abandoned the issue when the applicant’s witness, also employed by the respondent, testified that he was not aware of such a rule. The applicant also held the view that its version that Ms. Phakoe was not asked for anything other than for her to fund airtime and data in order to communicate with her was not challenged, nor was there an alternative version presented in contradiction. The assumption by Ms. Phakoe was held by the applicant to have been unsubstantiated and it was pointed out that the words she used were disputed, while the words remembered by the applicant were to the effect that she must get to the point. The only funding having been mentioned according to the applicant had only related to Ms. Phakoe funding the purchase of “airtime and data”.
[24] The applicant had viewed the testimony of Ms. Phakoe as unreliable as she had responded to the submission that after assignments are marked they are moderated by saying that she should have been made aware of that protocol. It was also pointed out that Ms. Phakoe had stated that Ms. Coetzer was a marker and when questioned on it her response showed that she had presumed that Ms. Coetzer was a marker. The applicant referred to Martin & East (Pty) Ltd v Bulbring N.O. and Others (C1051/14) [2016] ZALCCT 2; [2016] 5 BLLR 475 (LC) – para 26 in terms of which an employee may be dismissed should they fail to discharge their fiduciary duty to act in good faith and honestly towards his employer and submitted that the applicant by attempting to assist a struggling student had acted in good faith towards his employer. As such the applicant prayed that an order of retrospective reinstatement be ordered in response to a finding that the dismissal was not for a fair reason.
Probabilities
[21] Schedule 2 of the Employment of Educators Act, 76 of 1998 (“the Act”) makes provision for a Code of Good Practice in terms of which the Code of Good Practice: Dismissal contained in Schedule 8 of the LRA, insofar as it relates to discipline, constitutes part of that code and procedure. Pursuant to section 188(1)(a)(i) of the LRA, Item 7 of the Code of Good Practice: Dismissal provides that any person who is determining whether a dismissal for misconduct is unfair should consider whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; whether such rule was known or should reasonably be expected to have been known, and if contravened, whether or not dismissal was an appropriate sanction for the contravention of the rule or standard.
[23] In Emfuleni Local Municipality v SALGBC & Others the court outlined the steps that the arbitrator should follow in evaluating conflicting versions before him/her as follows:
• In misconduct disputes the employer need only show that, on all the evidence presented by both parties, its version is more probable than the employee’s version.
• While the overall onus never shifts from the employer, the need to present or counter evidence may rest on different parties.
• Once the employer has proved its allegations with evidence to a degree that its version requires an answer or rebuttal lest it be believed, the evidentiary burden shifts onto the accused employee to prove otherwise.
• An employee is not entitled to the benefit of the doubt as to the convincing nature of his or her explanation. On raising a particular defense, an evidentiary burden falls on the employee to establish that his or her version is likely. It is not necessary for the employer to adduce evidence to disprove positively a defense, especially if the defense is within the unique knowledge of the employee.
• An employer must prove its own case on a balance of probabilities. If it does so, it therefore flows that the employee’s case is false.
[21] The applicant’s argument with regard to the rule was misguided in that it was not the version of the respondent or indeed the charge against him that he was guilty of assisting a correspondence or long-distance learner in his spare-time; it was the applicant’s version that this was all he did, while the charge against him was for soliciting money from the student in exchange for better marks. It was therefore not for the respondent to prove that there was a rule against assisting in one’s spare-time as this would not have gone anywhere towards satisfying the requirements of Schedule 8 since this was not what the applicant was dismissed for. The respondent at times unwittingly followed this red-herring by repeatedly putting it to the applicant that he did not get any permission from his superiors, nor was there a policy in terms of which he was allowed to contact long-distance learners. The respondent has not argued that this line of questioning aimed to reveal the unreliable witness the applicant was. Hence this immaterial part of the evidence was largely not considered in this award as it has nothing to do with what the applicant was dismissed for. In Fidelity Cash Management Services v CCMA and others it was held that fairness is determined mostly on the basis of the reason for the dismissal which the employer furnished at the time of the dismissal. It is therefore the evidence dealing with the reason for the dismissal that shall concern this analysis.
[22] From the arguments both parties seem to agree that the applicant was seized with the fiduciary duty to act in good faith in the course of performing his duties. The respondent’s first witness, Ms. Coetzer disputed the submission that assignments are moderated after marking. As an allegation by the applicant, it was for the applicant to prove. The applicant in his evidence-in- chief initially stated that he did not know what happens to the scripts after he has marked them. He then stated that he expected that they should be moderated because then situations such as this could be avoided. From then on the applicant would reiterate the impossibility of him tampering with the marks precisely because the scripts are moderated. Ms. Coetzer had been admitted as a witness in her capacity as the administrator dealing with assignments. In other words she would have first hand knowledge of the process involved in the marking and allocation of marks to assignments. The applicant on the other hand did not appear to know for sure whether assignments are moderated, the claim that they are only appearing to be something he would expect to happen. That assignments are moderated seemed to be something to hold on to as it rendered the probability of tampering with marks highly unlikely given that someone else would still examine the assignment. At least this is what the applicant was of the view would be the natural impression created. The applicant was, however, not convincing in his assertion that assignments are moderated.
[23] If assignments are therefore not moderated, the argument that marks could not be tampered with falls away and what remains is the probability of what happened during the call between the applicant and Ms. Phakoe. The applicant made a concession that although he did not say “don’t beat about the bush” in that many words, what he expressed to Ms. Phakoe was that she must not waste his time. The sequence of the conversation then given that according to both parties the call was ended short, according to Ms. Phakoe it was after he had asked for money, while according to the applicant it was after he had said she should not waste his time, means that if it is accepted that the applicant only said “do not waste my time”, this was said in response to something. Ms. Phakoe stated that the conversation never got to how much or how payment would be effected, while the applicant stated that the conversation never got him explaining how his rendering his assistance would be effected. Therefore the applicant arguing that the version that he merely wanted airtime or data to be funded was not disputed cannot be sustained as by the applicant’s own testimony, the conversation never got there since Ms. Phakoe ended the call without wanting to know how things would work. If then he said “do not waste my time”, the question then becomes, to what was this in response? Ms. Phakoe responded well when she said under cross-examination that the applicant should have then been clear from the beginning if we are to accept his version, because if someone is offering assistance and you ask how, and their response is that you should not waste their time, it sounds as though they expect you to know that this is a quip pro quo situation. The concession by the applicant cannot be reconciled with how the call unfolded even by his own version and as such was effectively fatal to his version.
[24] The applicant’s witness did not in my view add any value to the proceedings in that having supported the version that the applicant offers his assistance in his spare time, it did very little to dispel the accusation against him in light of the internal contradictions in the applicant’s own testimony and the minimal impact his version served to discredit that of the respondent’s first and third witness. The applicant submitted that Ms. Phakoe’s testimony was inconsistent at times, however, he substantiated this with an explanation about a handbook that went nowhere. The referral to a student handbook and the timing of its mention was as haphazard as it was ill conceived. The applicant mentioned it seemingly to point out that Ms. Phakoe claimed to not know about procedures relating to lecturers assisting students when she might not have read the handbook. When he was later asked whether the policy around assistance of students was contained in the handbook he stated that the handbook only regulates student conduct on campus. Most of the applicant’s testimony appears to have been made up as he went or at times comprised trying to remember a rehearsed version as he would have to be asked questions in order to remember what his version is. In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others the Court held that the question to be answered is whether the probabilities favour the party bearing the onus of proof. It is my finding that on the balance of probabilities the respondent’s version is more probable.
Appropriateness of the dismissal
[25] Section 17(1)(a) and (f) of the Act, recognizes as serious misconduct where the educator is found guilty of theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports, or causes a learner or student to perform any acts as those contemplated. Section 18(1)(a) of the Act recognizes as serious misconduct that results in the breakdown of the employment relationship where the educator fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship. While subrule 1(ee) recognizes an act of dishonesty as another form of misconduct that amounts to a breakdown in the employment relationship.
[26] The Code as contained in Schedule 2 of the Act provides that in dealing with misconduct contemplated in section 18, the employer must assess the seriousness of the alleged misconduct by considering –
(a) the extent to which the misconduct impacts on the work of the Department of Education or provincial department of education, or the public school, public further education and training institution or public adult learning centre;
(b) the nature of the educator’s work and responsibilities; and
(c) the circumstances in which the alleged misconduct took place.
In terms of Subsection 5(a) of the Act, an educator may be dismissed if found guilty of dishonesty, as contemplated in section 1(ee).
[27] The dismissal of the applicant is therefore found to have been substantively fair. As I have already stated, both parties acknowledged the fact that the applicant had a fiduciary duty to act in good faith towards his employer and that failing to do so will justify dismissal. The applicant definitely did not act in good faith when he sought to offer a student marks that she did not earn in exchange for a bribe. The applicant not only placed the integrity of the respondent in jeopardy, and his own profession, he also sought to do the student a disservice. It is therefore reassuring that such opportunities are not taken up by those with enough of a conscience to even recognize the need to report such incidents. The student should be applauded for accepting her bad marks as opposed to contributing to a problem the respondent can never know how deep it goes, but can take solace in the fact that it has been brought to its attention and that one of its perpetrators has been removed from the system.
AWARD
[28] The dismissal of the applicant, Seiso Lesejane, was substantively fair.
[29] The applicant’s claim is dismissed.
[30] I make no order as to costs.
Signature:
ELRC Panellist: Mohau Clement Ntaopane