ELRC644-20/21 EC
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ELRC1094-19/20KZN
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Award Date:
08 October 2021
In the arbitration between
NATU obo BUTHELEZI QHAWE APPLICANT
AND
DEPT OF EDUCATION – KZN RESPONDENT
ARBITRATION AWARD
CASE NUMBER: ELRC1094-19/20KZN
DATE DOCUMENTS RECEIVED: 27 SEPTEMBER 2021
DATE AWARD SUBMITTED: 08 OCTOBER 2021
NAME OF PANELLIST: Siziwe Gcayi
Details of hearing and representation
[1] This matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) as amended at the Department of Education offices in Mkuze and at the Durban Teachers Centre. This matter was heard on the following dates: 08-09/12/2020, 03-04/02/2021, 01-02/03/2021, 03/07/2021, 31/07/2021, 01/08/2021 and 28 August 2021. On 08th December 2021 and 03rd July 2021 the proceedings were conducted virtually. Ms L Zibane an official from NATU represented the Applicant, Mr QHAWE Buthelezi. Mr M Mabaso an official represented the Respondent, Department of Education: KZN.
[2] The parties submitted their closing arguments to the Council on 27 September 2021. The proceedings were electronically and manually recorded.
Issue to be decided
[3] I have to decide whether the dismissal of the Applicant by the Respondent was fair and based on the finding decide on appropriate relief.
Background
[4] The Applicant was employed by the Respondent since January 2005 as post level 1 educator. In January 2015 he was appointed as a principal at Ntsinde commercial school. On 01st April 2020 his services were terminated by the Respondent following a disciplinary hearing. The Applicant was a leader of NATU at the UBOMBO Branch. The relief the Applicant seeks is reinstatement.
Survey of evidence
Respondent’s case
[5] The Respondent led evidence of seven [7] witnesses. Their evidence is summarised as follows: Ms S Mabuyakhulu [“Mabuyakhulu”] testified as follows: She was the mother of two children residing at Obenjeni with her mother and the following children: Thobani Dlamini, Nokwethemba Thusi, Siyamthanda Sokhela and Sandiso Dube. She also mentioned that she was also taking care of Nokwethemba’s children. The Applicant was known to her. The Applicant summoned Nokwethemba to his school and gave her R150-00 for airtime. She was aware that he was the school principal at Ntsinde High School. Nokwethemba was the learner at Mangwazana High School. Nokwethemba was communicating with the Applicant on many occasions. They discussed the issue of Zondo, compensation from Zondo. Bundle A Pg.28 letter written by Nokwethemba. It was read into record. Letter was addressed to Zondo. An amount of R5000-00 was given to Nokwethemba by the Applicant. It was not clear whether it was for compensation or to buy uniforms. Nokwethemba had a tendency of not attending cases. The Applicant was behind Nokwethemba’s disappearance and her not attending cases. During Zondo’s case, Nokwethemba disappeared and did not attend the case. She also missed her exams. Three subjects were not written by Nokwethemba. On her return, she informed Mr Nsele that the Applicant gave her money to disappear. Between August and September 2020 Nokwethemba did not attend the case. Bundle A Pg.34, 36 and 37 WhatsApp messages between the Applicant and Nokwethemba. Bundle A Pg. 35,38,39 and 40 pictures of Nokwethemba and Zekhethelo. On 06, 07, and 08 December 2020 Nokwethemba was at a hotel. She returned home on 09 December 2020.
[5.1] Mr AG Nsele [“Nsele”] testified as follows: He was the school principal at Mangwazana High School since 2012. Nokwethemba Thusi was a learner at Mangwazana High School between 2016- 2018. Bundle A Pg.27 was a letter written by him. The letter was read into record. It was in relation to the absenteeism of Nokwethemba. In March 2018, Nokwethemba did not write the exams. He mentioned that he communicated with the guardian of the learner [Ms Mabuyakhulu] and the learner about the absenteeism. Nokwethemba informed him that she was instructed by the Applicant to disappear up until the finalisation of Zondo’s case. The Applicant gave her R1000-00 in the company of Zondo. The Applicant further gave her the following monies for the withdrawal of the case: R5000-00 and R2000-00. He also mentioned that the Applicant was known to him, he was the school principal at Ntsinde High School.
[5.2] Mr T Myeza [“Myeza”] testified as follows: He was an educator at Mangwazana High School. The school principal was Mr AG Nsele. Some school learners were known to him. Nokwethemba Thusi was amongst the learners he knew. He also testified about the meeting between him, Nsele and Nokwethemba. It was in the month of May 2018, Nokwethemba informed them about the incident that took place on 23rd March 2018, that she received a phone call from the Applicant. They meet at the school gate, the Applicant gave her R1000-00 and requested her to disappear up until the disciplinary hearing held at the district was concluded. She left for Emakhonyeni and returned in the 2nd term to continue with her studies. Nokwethemba informed them that she will continue with the case as she did not receive the monies she was promised. She was promised R20 000-00. In December 2017, she received R5000-00. In January 2018 she received R2000-00. The total amount that was paid to her was R8000-00. In relation to the school principal, he mentioned that Nsele informed them that he would draft a letter and report the matter to the circuit office.
[5.3] Mr T Zondo [“Zondo”] testified as follows: He was an educator at Ntsinde Commercial School since March 2007. The Applicant was known to him as he was the school principal at Ntsinde Commercial School. He mentioned that there was a time when he was charged for sexual assault of a learner- Nokwethemba Thusi. His services were terminated. On 17 November he received the outcome of appeal from the MEC, his appeal was dismissed. He informed the Applicant of his intention to refer the matter to ELRC. The Applicant advised him not to leave the school up until an outcome of his ELRC dispute. In December 2017, he left for the marking centre. In January 2018 he returned to the school as per instructions from the Applicant. On 05 January 2018 he received a phone call from the Applicant to report at school on 08 January 2018. On 17 January 2018 he was sent by the Applicant to the Ubombo Circuit office to collect payslips. On 18 January 2018, he attended the principals meeting on behalf of the Applicant at the request of the Applicant. On 04 May 2018 he was requested by the Applicant to write a letter stating that his services at the school were on a voluntary basis. He refused to write the letter. In relation to the ELRC matter he discussed it with the Applicant. In resolving the ELRC matter, the Applicant advised him to raise R30 000-00 for the child to withdraw the case. He refused but the Applicant was persistent. On 01 December 2017, he transferred an amount of R6000-00, to the Applicant’s bank account. The money was meant for Nokwethemba. In relation to the ELRC, Nokwethemba testified and did not complete her testimony. On 10 July 2018 Nokwethemba did not attend the case. Mr Zulu informed the sitting that Nokwethemba was not interested in her case. The ELRC matter commenced in February 2018 at Mfolozi –Mtubatuba where the matter was conciliated. The arbitration hearing commenced on 31 May 2018 and concluded on 10 July 2018. On 24 July 2018 he received the arbitration award.
[5.4] Mr LM Zulu [“Zulu”] testified as follows: Between 2017 and 2018 he was employed by the Respondent as an Assistant Director for the Umkhanyakude district. In 2019 he left the Department of Education. The Applicant was known to him as the school principal for one of the schools in the Umkhanyakude district. Bundle A Pg.12, 29, 30 and 31 were known to him. Bundle A Pg.30 was written by him informing NATU about the charges against the Applicant. He received no communication from NATU. During the disciplinary hearing of the Applicant no issues were raised by the Applicant in relation to the consultation with the trade union. In relation to T Zondo, he mentioned that he was involved in his disciplinary hearing in 2013 and also his arbitration hearing. Zondo was charged for misconduct. Zondo was charged for sexual assault. The learner involved was Nokwethemba Thusi. During the disciplinary hearing of Zondo, Nokwethemba was called as a witness. As well as during the arbitration, in March 2018, Nokwethemba did not attend. The hearing did not take place. In May 2018, she was traced through her aunty. She testified but did not conclude her testimony, on the 2nd sitting she did not avail herself and the arbitration hearing was concluded. In May 2018 he received a letter from Nsele, Bundle A Pg.27. He arranged a meeting between himself, Nokwethemba’s aunty and Nokwethemba. At the meeting, Nokwethemba confirmed receiving monies from the Applicant. She was promised R20 000-00. The outstanding amount was R12 000-00. Charges of misconduct against the Applicant were prepared. During the disciplinary hearing of the Applicant, witnesses were called. Nokwethemba was amongst the witnesses that were called. She confirmed receiving monies from the Applicant to disappear and not attend the arbitration hearing. She disappeared in March 2018. He also mentioned that the Applicant was found guilty on all charges. His services were terminated due to the seriousness of the charges. The dismissal of the Applicant was procedurally and substantively fair.
[5.5] Mr AT Ndlovu [“Ndlovu”] testified as follows: In 2017 and 2018 he worked for the Respondent at the Ubombo Cluster. He left the Respondent in 2019. The Applicant was known to him. He was under his cluster. He was the school principal at Ntsinde Commercial School. In his testimony, he made reference to Bundle A Pg. 8 “outcome of appeal for T Zondo”. The presence of Zondo was the continuous insubordination. He received Bundle A Pg.8 and communicated it with the Applicant and requested him to communicate the same with Zondo. In December 2017, Zondo had no business with the school. In January 2018 Zondo collected payslips and also attended principals meeting. He also made reference to Bundle A Pg.32. It was an extract from the logbook. They made an entry when they visited the school on 15 May 2017. Upon their visit at the school, they did not perform their work due to the Applicant’s interference. They were chased away from the school by the Applicant. Only subject advisers were allowed to inspect the exercise books according to the Applicant. He also testified about his relationship with the Applicant. It was very difficult to work with the Applicant, he had no respect for his supervisors. They meet several times at a bilateral meetings. The Applicant disrespected him in front of other principals. The Applicant disturbed other schools, the local Chief Sifiso Myeni wrote to the District Director. The Applicant was charged for misconduct as per his recommendation. He also testified during the disciplinary hearing of the Applicant. The Applicant’ school got 100% pass most of the time.
[5.6] Mr SV Mthembu [“Mthembu”] testified as follows: He was employed by the Respondent at the Ubombo Circuit. He was the circuit manager, responsible for: giving support to schools, guide schools in terms of recruitment for employees, guidance on how to manage curriculum, to ensure that the results were not compromised. His office was next to Mkuze Primary School. At times he performed his duties at schools. He testified about the incident of 15 May 2017. He mentioned that he was with team at Ntsinde Commercial School. The principal of the school was the Applicant. The purpose of the visit at the school was curriculum management and delivery support. The team leader was AT Ndlovu. They did not perform their work, the Applicant denied them permission to engage with their activities of the day. Only subject advisers had permission to inspect the exercise books. The Applicant was holding the exercise books and denied him access to the exercise books. The team was shocked, confused and felt disrespected and embarrassed by the conduct of the Applicant. The Team leader convened a meeting and the decision of the team was that they were not welcomed at the school. An entry was made in the logbook, all members of the team signed the logbook.
Applicant’s case
[6] The Applicant testified and called four witness in support of his case. He testified as follows: He was employed by the Respondent since January 2005. Prior to the termination of his services, he was the school principal at Ntsinde Commercial School. He joined the school in January 2015. He testified about the incident of 15 May 2017, in the morning he had a meeting at Makhonyeni hall. Ms Myeni was in charge of the school as he had commitments with the trade union. He made an entry in the logbook. Before leaving the school, he meet with Mr Mthembu, who informed him of the purpose of their visit at the school. They discussed subjects to be inspected and challenges faced by educators at the school. Subject advisers were of great assistance for the educators on how to prepare the file and approach the lesson. He informed Ms Myeni about the visit of the circuit managers at the school. Grade 11B was allocated to the departmental officials. Grade 12 was occupied by the Chief Inspector Mr Ndlovu. Mr Mthembu was at grade 11B. He left the school for trade union activities. Whilst engaged with trade union activities, he received a text message from Ms Myeni, that the departmental officials left the school. They made an entry in the logbook that they were refused access to the exercise books, as such they claimed that they were prevented from performing their work. The team was made aware of the trade union activities. At no stage, did he stopped the team in performing their activities. Mthembu had no issues with the suggestions that subject advisers be the ones inspecting the exercise books. At no stage did he showed disrespect towards the departmental officials.
Relationship with Ndlovu.
He mentioned that according to Ndlovu, he was not doing things as required/expected. When he joined the school in 2015 the school was not performing well. He brought a positive change at the school, with 97% to 100% pass rate. Parliament congratulated him for the best performance provincially and nationally. Ndlovu was not pleased with him playing an important role in the union activities. Ndlovu had a personally agenda against him.
Relationship with Nsele.
He mentioned that Nsele was in charge of Mangwazana High School. They did not have a good relationship. When he introduced science at the school, Nsele was not pleased. He complained to the circuit manager Mr Thabede. Both of them were addressed by Thabede. Mr Ndlovu was against the school having science subjects.
Charges
In relation to the charges he made reference to Bundle A Pg 8 outcome of appeal of T Zondo. He received a letter from Ndlovu and was instructed to inform Zondo of the appeal outcome. On 20 November 2017, he gave Zondo the letter. He also gave Zondo contact details for the NATU legal section. Zondo informed him of his intention to appeal and remain at the school. Zondo also left for marking and received the salary.
January 2018.
Zondo was sent to collect payslips as he was the only educator with a vehicle. He was also sent to attend the meeting. Inspectors visited the school and had no problems with Zondo at the school.
June 2018.
Mr Mazibuko visited the school and enquired about Zondo’s presence at the school. Zondo left the school in June 2018. Ndlovu did not know what to do with Zondo. He gave no clear direction.
Payment to the student.
Zondo suggested that the student be paid in order to be on his side, he could not afford to lose employment. At no stage Zondo gave him the money.
Charge 2.
In 2017 he recruited students to attend at his school. The registration process was completed in October 2017. Nokwethemba was known to him. She was introduced by Zekhethelo. Nokwethemba’s aunty had a problem with Nokwethemba returning at Ntsinde whilst Zondo was still at the school, and that caused a huge misunderstanding between Nokwethemba and her aunty. Nokwethemba treated him as a father figure. He assisted Nokwethemba with school needs.
25 September 2018
Nokwethemba was a witness for the Respondent.
18 December 2018.
Nokwethemba was denied opportunity to testify on his behalf.
Monies to Nokwethemba
No monies were given to Nokwethemba except the R150-00. He knew nothing about R6000-00 and R5000-00. He never received any monies from Zondo. At no stage did he protected Zondo. He also distanced himself from the incident of 23 March 2018. Bundle A Pg. 38, he knew nothing about it. Bundle A Pg. 34 –conversation between him and Nokwethemba.
Consultation with the trade union
He mentioned that no consultation took place between the trade union and the Respondent. During the disciplinary hearing, the issue of consultation was not raised however on appeal to the MEC, it was raised.
[6.1] Ms J Myeni [Myeni] testified as follows: She made reference to Bundle A Pg.32. “Extract from the logbook” she read into the record. She mentioned that she was responsible for the school on the day in question, 15 May 2017. The departmental officials visited the school, and they were: Mr Ndlovu, Mr Mthembu and Mr Nkanini. She could not recall the surnames of the others. The Applicant was about to leave for trade union activities. Mr Ndlovu came and had a conversation with the Applicant. He then proceeded to grade 12. Ndlovu was handling exercise books from the learners. Mr Mthembu also came and conversed with the Applicant. She also mentioned that she assisted the team by collecting the files from the educators. They were there to observe different subjects. Ndlovu returned the exercise books and the diary. Ndlovu convened the meeting and informed the school management team [SMT] that they were leaving as they were informed that they were not the relevant people to check the files. A request was made that exercise books and files be returned to relevant educators and learners. The logbook was also handed over to Ndlovu. The team left after the Applicant had already left the school.
[6.2] Ms Z Gina [“Gina”] testified as follows: She was 24 years old, not schooling. Between the periods 2010 to 2017, she was schooling at Ntsinde Commercial School. The Applicant was her school principal. Nokwethemba was her sister. Her aunty refused to allow her to study at Ntsinde Commercial School. A request was made for the Applicant to intervene and speak to Nokwethemba’s aunty. In 2017 Nokwethemba was introduced to the Applicant. Upon visiting the school, Nokwethemba gave the Applicant the contact details of her aunty. Nothing was given to Nokwethemba by the Applicant. In relation to Mr Zondo, she mentioned that she knew him. She also knew about the incident between Nokwethemba and Zondo.
[6.3] Ms N Thusi [Thusi] testified as follows: She was 24 years old. She knew the Applicant. Zekhethelo introduced her to the Applicant. She had an interest in studying at Ntsinde, however her family was against her studying at Ntsinde due to the incident that occurred between her and Zondo. She visited the Applicant at the school when she was introduced by Zekhethelo and requested Applicant to speak to her aunty on her behalf. She informed the Applicant about the incident between her and Zondo. The Applicant wanted nothing to do with Zondo’s matter. The Applicant gave her R150-00 for airtime and transport. She was in the company of her aunty at Mkuze and they meet with the Applicant. Her aunty had a discussion with the Applicant however it was not fruitful as her aunty thought Applicant wanted to discuss Zondo’s case. She mentioned that she had a good relationship with the Applicant. She considered him as a father, the Applicant assisted her pocket money and school trip money. The Applicant bought her the things she was in need of. She never received R5000-00 and R1000-00 from the Applicant. In relation to Bundle A Pg. 27, she confirmed she did not write the life science, geography and tourism examinations. She did not write these three subjects as she knew she was not going to make it. When schools re-opened, Nsele summoned her to his office and enquired about the subjects she did not write. She distanced herself from the contents of Bundle A Pg. 27 except the part of the three subjects that were not written. She also mentioned that she knew nothing about the following monies: R2000-00, and R12 000-00. She was advised by Nsele to accuse Applicant that he was the cause of her not writing the exams. Bundle A Pg. 28 –letter. It was read into record and she distanced herself from it. There were no monies she expected from Zondo. In relation to the case at the district office, she stated that it was Nsele’s suggestion that she makes false allegations against the Applicant. She testified during the disciplinary hearing against the Applicant under duress. After her testimony she felt guilty. She meet with the Applicant and confessed. The following day of the sitting, she was not allowed to testify. In relation to Zondo’s case, she mentioned that she did not attend the hearing to its finality. There were no monies she received from the Applicant to stop attending Zondo’s case. Bundle A Pg. 35, 38, 39 and 40 pictures of her and Zekhethelo at Empangeni for purposes of attending a case. From the onset she was the witness for the Applicant.
[6.4] Mr P Maseko [“Maseko”] testified as follows: He was employed by the Respondent at Mkhanyakude District. He was a Senior Education Specialist. In relation to the disciplinary hearing of the Applicant, he mentioned that he represented the Applicant. On charge 1 he mentioned that, when the departmental employees visited the schools they encountered challenges e.g. the schools were busy with tests or sport day. They took a resolution to inform schools prior visiting them, so that they would be prepared. The resolution was taken after 15 May 2017. No employee was charged due to non-preparedness. The Applicant did not deserve to be charged and his services terminated. Section 18 was silent on the charge. On charge 2 he mentioned that, dismissal was not appropriate. All witnesses during the disciplinary hearing testified about what they heard from Nokwethemba, however during cross-examination, Nokwethemba changed her version. In preparation for the case Nokwethemba was their witness. After the hearing Nokwethemba approached them and apologised about the false testimony she gave during the disciplinary hearing. He also made reference to Bundle A Pg.27. He mentioned that all witnesses made reference to that letter including Nokwethemba. All that was contained in the letter was from AG Nsele according to Nokwethemba. On the 1st day of the disciplinary hearing they decided not to bring their witnesses as the Respondent had a number of witnesses. On 2nd day, Nokwethemba planned to testify for the Applicant but was denied by the chairperson. Bundle A Pg.13- charge 3, he mentioned that it was unfair for the Applicant to be dismissed because of Zondo’s matter. Many people were involved in Zondo’s matter. Ndlovu knew Zondo, he witnessed him at the school and also in collecting payslip. It was not the duty of the Applicant to hire and dismiss. Bundle A Pg. 22-24, the Applicant was senior member of NATU, when he was charged his organisation had to be informed of the charges he faced. Bundle A Pg.31- no consultation meeting took place between NATU and the Respondent. Bundle A Pg.28- “letter”. It was presented during the disciplinary hearing.
Analysis of evidence and argument
[7] In this case, the existence of the dismissal is common cause, therefore the Respondent had to prove that the dismissal of the Applicant was fair. It is trite that the employer bears an onus to justify the dismissal once the existence thereof has been proven by the employee. In terms of Section 188 of the Labour Relations Act (LRA) the employer must prove that the dismissal was for a fair reason based on the employee’s conduct, capacity or employer’s operational requirements and that it was executed through a fair procedure.
[7.1] At the commencement of these proceedings, parties exchanged bundle of documents. They handed in bundle of documents that formed part of these proceedings. The Applicant submitted Bundle “B”. The Respondent submitted Bundle “A”. Reference was made to the bundle of documents during the arbitration proceedings when evidence was led through witnesses. Both parties in these proceedings relied on oral evidence and documentary evidence.
[8] Procedural Fairness: At the commencement of the proceedings, the Applicant’s representative placed on record that the procedural fairness is challenged.
[8.1] In determining the fairness of dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal Schedule 8, item 4 deals with Fair Procedure. And also to take into consideration the principle laid down in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC);(2006) 9 BLLR 833 (LC). It was held that the employer was merely required to conduct the investigation, give an employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.”
[8.2] The Applicant contested the procedural fairness that led to his dismissal. In relation to procedural fairness, the Respondent called Zulu and reference was made to Bundle A Pg.30 Zulu mentioned that NATU was made aware of the charges against the Applicant as per Bundle A Pg. 30. He received no communication from the NATU. During the disciplinary hearing of the Applicant the issue of consultation was not raised. It is common cause that the Applicant was a chairperson of NATU. It was also common cause that during disciplinary hearing Applicant was represented by Maseko. It was the evidence of Maseko during cross-examination, they were given sufficient time to prepare for the case. The Respondent submitted Bundle A Pg 30-31 as proof that NATU was informed of the charges against the Applicant. On the other hand, the Applicant distanced himself from the documents on Pg.30-31. The Respondent submitted that they complied with item 4[2], Schedule 8 of the LRA. The Applicant disputed such. Let us say, I accept the Applicants submission NATU was never consulted despite the existence of Bundle A Pg.30-31, and fax no belonging to NATU. The question that we need to address, what prejudice did the Applicant suffer as a result of non-compliance with item 4[2] of Schedule as they allege non-compliance.? According to Maseko, they were given sufficient time to prepare for the case, at no stage during the disciplinary did they raise the issue of non-consultation. No evidence was placed before me that the Applicant suffered prejudice as a result of non-consultation. In making determination as to whether failure to consult with the trade union prior holding a disciplinary hearing against trade union representative rendered disciplinary hearing procedurally unfair. I am guided by the dictum in BIFAWU & ANOTHER v MUTUAL & FEDERAL INSURANCE COMPANY LTD [JA/15/2003][2005]ZA LAC 10, [2006] 2 BLLR 118 [LAC] “ The Court considered the fact that the employer failed to consult with the union before taking disciplinary steps against the shop steward. The Court held that this would not automatically render a dismissal procedurally unfair, as long as there is no prejudice suffered by the employee.” As indicated above, there is no evidence before me that the Applicant suffered prejudice, therefore I find no procedural improprieties and conclude a fair procedure was followed in terminating the services of the Applicant.
[9] Substantive Fairness: In determining the fairness of the dismissal, the law requires me to consider the Code of Good Conduct and the CCMA Guidelines on Misconduct Dismissals. Further, in terms of the Constitutional Court judgment in Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC), I must consider all relevant circumstances in determining fairness of the dismissal.
[10] Before analysing the evidence of the witnesses. It is worth important to first explain the nature of an arbitration according to CCMA GUIDELINES ON MISCONDUCT para 17 “An arbitration is a new hearing which means that the evidence concerning the reason for dismissal is heard afresh before the arbitrator. The arbitrator must determine whether the dismissal is fair in light of the evidence admitted at the arbitration.”
[11] The Respondent in proving its case led evidence of seven [7] witnesses. Their evidence has been summarised above, it will not be repeated. Their evidence was clear. It was consistent with the probabilities. It was clear and satisfactory. They appeared to be reliable and credible witnesses. Under cross examination, they maintained their version. The evidence of the witnesses corroborated each other and as such, I find it acceptable. Unfortunately, the same cannot be said about the Applicant’s case for the reasons stated below
[12.] The Applicant testified and called four witnesses in support of his case. It is important to highlight that all throughout the proceedings, the Applicant was warned to bring to the attention of his representative all he disputed as it relates to the testimony of the witnesses of the Respondent. He was reminded with every witness that testified for the Respondent. I was also privileged to observe the Applicant writing notes to his representatives all throughout the proceedings.
[12.1] With the witnesses of the Applicant, I will start with Myeni. She appeared to be an honest witness. She did not exaggerate anything. Her evidence was in relation to the incident of 15 May 2017.She mentioned that Ndlovu had a discussion with the Applicant when he arrived at the school, and then proceeded to grade 12. Under cross-examination, she maintained her version that Ndlovu and the Applicant had a discussion which was a bit abnormal as they were raising their voices. One could tell something was not right between them.
[12.2] According to the Applicant, he did not converse with Ndlovu, he only spoke with Mthembu. Myeni also mentioned that she informed the Applicant when she returned to school in relation to the departmental officials and their visit at the school. The Applicant on the hand mentioned that he received a text message from Myeni updating him
[12.3] Zekhethelo was called by the Applicant but it’s not clear, why she was called as she added no value to the Applicants case. Her evidence was not relevant on any of the charges that the Applicant faced and was dismissed for. Maseko was the last witness for the Applicant. Most of his testimony was in relation to what transpired during the disciplinary hearing of the Applicant. During cross-examination, he maintained that they had sufficient time to prepare for their case. They consulted with the witnesses and one of the witnesses being Nokwethemba. He knew what the witnesses were to testify about as per the Applicant’s instructions.
[12.4] Nokwethemba was amongst the key witnesses for the Applicant. Her name was mentioned by both sides, the Respondent’s witnesses and Applicant’s witnesses. On the side of the Applicant, only Myeni did not mention Nokwethemba’s name. New evidence was brought by Nokwethemba which was never tested on Respondent’s witnesses. To be specific to Nsele. During her evidence-in-chief she mentioned that, it was Nsele idea that she fabricates allegations against the Applicant, the reason as to why she did not write the exams, it was the Applicant who instructed her to be stay away because of the case that she had to attend. She was frightened by Nsele’s words that she would be expelled by the school. Surprisingly, Nsele was called by the Respondent as a witness, he was cross-examined at length but the version of Nokwethemba was not put to him. Maseko’s evidence was that they consulted with their witnesses in preparation for the case including Nokwethemba. In short, the Applicant knew what Nokwethemba was bringing to the hearing. Why was Nokwethemba’s version not tested when Nsele was cross-examined, he was not allow an opportunity to comment during cross-examination. There is a big danger in not cross-examining a witness on relevant and important aspects, generally that suggest the evidence of the witness be accepted. In South African law of evidence 2nd edition Pg.912 by DT Zeffert and AP Paizes “ If a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine the witness upon the facts which he intend to prove in contradiction, so as to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon matters which it will be alleged make his evidence unworthy of credit.” In ABSA BROTHERS [PTY] LTD V MOSHOANA & OTHERS [2005] 10 BLLR 39 [LAC] “the Court stated that it was an essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross-examine a witness but, indeed also a responsibility to cross-examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may in general imply an acceptance of the witness testimony”. We learnt for the first time during Nokwethemba’s testimony that Myeza was not present in Nsele’s office. Myeza was called by the Respondent and his evidence was not challenged when he gave an account of what transpired in Nsele’s office in the presence of Nokwethemba and Nsele.
Both Nsele and Myeza have since left, we are told not to believe or accept their evidence, whilst they were present, their evidence was not challenged. When both these witnesses testified, the Applicant already knew Nokwethemba’s version. Why was the version of Nokwethemba not tested on these witnesses? Is it because it was an afterthought? Nokwethemba was very selective in her recollection of events, to mention few: Under cross-examination, she mentioned she could not recall how old she was in 2012, she could not recall whether she was schooling in 2018. Photos on Bundle A Pg.38-41 were taken this year but not certain when. She could not remember how many times she testified against Zondo. It was also her testimony that she lied during the disciplinary hearing of the Applicant because she testified under duress. I must mention she did not appear to be someone who was interested in assisting the hearing. At all times she was warned to take time in responding and seek clarity on questions that were not clear to her before responding.
With all that I have highlighted above in relation to Nokwethemba, I was painting a picture of the type of witness Nokwethemba was. She did not assist the Applicant’s case at all, instead she damaged it. She did not appear to be a credible and reliable witness at all.
[12.5] Lastly, as it relates to the Applicant, the visit of the departmental officials on 15 May 2017 at the school without the subject advisers and the Applicant not being notified timeously about the visit did not sit well with the Applicant. He already had plans for that day, to attend trade union activities hence Myeni was already assigned to head the school. The Applicant voiced his dissatisfaction about the subject advisers who were not part of the team, whereas they were the ones who coached the educators on how to prepare lesson. During evidence-in-chief, the Applicant was asked three times whether he spoke to Ndlovu and his response was “no”. Myeni’s evidence both during evidence-in-chief and in cross-examination, was that Ndlovu had a discussion with the Applicant, when he arrived at the school and later proceeded to grade 12. She also mentioned that their discussion was a bit abnormal as they were raising their voices. One could tell something was not right between them. The Applicant was not truthful when he said he never spoke to Ndlovu. Myeni was the Applicant’s witness, her evidence was very clear. We learnt for the 1st time during the Applicant’s case that the Applicant never conversed with Ndlovu, and such evidence was never tested with Ndlovu. And also, Ndlovu had a vendetta against the Applicant. Such evidence was never tested on Ndlovu. We only heard about it during the Applicant’s case. Ndlovu was never given an opportunity to comment on it. According to the Applicant, Zulu had a vendetta against him. When Zulu testified such version was not tested with him. We only learnt about it during the Applicant’s case. No explanation was provided as to why such was not tested with Zulu. I must mention, most of the important aspects were not challenged on the Respondent’s case just like the few that I have highlighted above, despite the Applicant being warned to put as much of his case as possible all throughout the proceedings. In relation to Zondo, the Applicant knew Zondo was dismissed as per Bundle A Pg. 8. He read the letter to him. He advised Zondo about NATU legal section. Zondo reported to him in February 2018 that he did not receive his salary and he did not do anything about it. He did not enquire from human resource section because he knew that he was no longer an employee of the Respondent. The Applicant was the manager of the school, it was expected of him to take action on any issues that the educators and learners were faced with. He was entrusted with that responsibility. On the issue of Zondo, he did not act because he was aware of Zondo’s status at the school. It was Zondo’s evidence during cross-examination “It was the Applicant’s suggestion that I remain at the school whilst attending the case at the ELRC. I knew my services were terminated by the Respondent.” His evidence was not challenged. Version of Zondo that Applicant suggested that Nokwethemba be paid R30 000-00 to withdraw the case was not challenged. And also, he deposited an amount of R6000-00 on 01 December 2017 and this was not disputed instead it was put to him: “It could happen that Buthelezi utilised the R6000-00 on his own accord”. The response “yes possible, he might have given her or not I do not know.” For the reasons I have highlighted above, I do not find the Applicant as a credible and reliable witness. I have not been convinced by the Applicants evidence.
[13] In considering the totality of circumstances, in light of the above I accept the evidence of the Respondent’s witness as more probable version and a true reflection of the facts. Therefore, I find that the Respondent discharged the onus placed on it in terms of section 192[2] of the Labour Relations Act 66 of 1995, to show that the dismissal of the Applicant was substantively fair.
Award
[14] The dismissal of the Applicant, Mr QHAWE Buthelezi was both procedurally and substantively fair.
Signature :
Commissioner : Siziwe Gcayi
Date : 08 October 2021
NATU obo BUTHELEZI QHAWE APPLICANT
AND
DEPT OF EDUCATION – KZN RESPONDENT
ARBITRATION AWARD
CASE NUMBER: ELRC1094-19/20KZN
DATE DOCUMENTS RECEIVED: 27 SEPTEMBER 2021
DATE AWARD SUBMITTED: 08 OCTOBER 2021
NAME OF PANELLIST: Siziwe Gcayi
Details of hearing and representation
[1] This matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) as amended at the Department of Education offices in Mkuze and at the Durban Teachers Centre. This matter was heard on the following dates: 08-09/12/2020, 03-04/02/2021, 01-02/03/2021, 03/07/2021, 31/07/2021, 01/08/2021 and 28 August 2021. On 08th December 2021 and 03rd July 2021 the proceedings were conducted virtually. Ms L Zibane an official from NATU represented the Applicant, Mr QHAWE Buthelezi. Mr M Mabaso an official represented the Respondent, Department of Education: KZN.
[2] The parties submitted their closing arguments to the Council on 27 September 2021. The proceedings were electronically and manually recorded.
Issue to be decided
[3] I have to decide whether the dismissal of the Applicant by the Respondent was fair and based on the finding decide on appropriate relief.
Background
[4] The Applicant was employed by the Respondent since January 2005 as post level 1 educator. In January 2015 he was appointed as a principal at Ntsinde commercial school. On 01st April 2020 his services were terminated by the Respondent following a disciplinary hearing. The Applicant was a leader of NATU at the UBOMBO Branch. The relief the Applicant seeks is reinstatement.
Survey of evidence
Respondent’s case
[5] The Respondent led evidence of seven [7] witnesses. Their evidence is summarised as follows: Ms S Mabuyakhulu [“Mabuyakhulu”] testified as follows: She was the mother of two children residing at Obenjeni with her mother and the following children: Thobani Dlamini, Nokwethemba Thusi, Siyamthanda Sokhela and Sandiso Dube. She also mentioned that she was also taking care of Nokwethemba’s children. The Applicant was known to her. The Applicant summoned Nokwethemba to his school and gave her R150-00 for airtime. She was aware that he was the school principal at Ntsinde High School. Nokwethemba was the learner at Mangwazana High School. Nokwethemba was communicating with the Applicant on many occasions. They discussed the issue of Zondo, compensation from Zondo. Bundle A Pg.28 letter written by Nokwethemba. It was read into record. Letter was addressed to Zondo. An amount of R5000-00 was given to Nokwethemba by the Applicant. It was not clear whether it was for compensation or to buy uniforms. Nokwethemba had a tendency of not attending cases. The Applicant was behind Nokwethemba’s disappearance and her not attending cases. During Zondo’s case, Nokwethemba disappeared and did not attend the case. She also missed her exams. Three subjects were not written by Nokwethemba. On her return, she informed Mr Nsele that the Applicant gave her money to disappear. Between August and September 2020 Nokwethemba did not attend the case. Bundle A Pg.34, 36 and 37 WhatsApp messages between the Applicant and Nokwethemba. Bundle A Pg. 35,38,39 and 40 pictures of Nokwethemba and Zekhethelo. On 06, 07, and 08 December 2020 Nokwethemba was at a hotel. She returned home on 09 December 2020.
[5.1] Mr AG Nsele [“Nsele”] testified as follows: He was the school principal at Mangwazana High School since 2012. Nokwethemba Thusi was a learner at Mangwazana High School between 2016- 2018. Bundle A Pg.27 was a letter written by him. The letter was read into record. It was in relation to the absenteeism of Nokwethemba. In March 2018, Nokwethemba did not write the exams. He mentioned that he communicated with the guardian of the learner [Ms Mabuyakhulu] and the learner about the absenteeism. Nokwethemba informed him that she was instructed by the Applicant to disappear up until the finalisation of Zondo’s case. The Applicant gave her R1000-00 in the company of Zondo. The Applicant further gave her the following monies for the withdrawal of the case: R5000-00 and R2000-00. He also mentioned that the Applicant was known to him, he was the school principal at Ntsinde High School.
[5.2] Mr T Myeza [“Myeza”] testified as follows: He was an educator at Mangwazana High School. The school principal was Mr AG Nsele. Some school learners were known to him. Nokwethemba Thusi was amongst the learners he knew. He also testified about the meeting between him, Nsele and Nokwethemba. It was in the month of May 2018, Nokwethemba informed them about the incident that took place on 23rd March 2018, that she received a phone call from the Applicant. They meet at the school gate, the Applicant gave her R1000-00 and requested her to disappear up until the disciplinary hearing held at the district was concluded. She left for Emakhonyeni and returned in the 2nd term to continue with her studies. Nokwethemba informed them that she will continue with the case as she did not receive the monies she was promised. She was promised R20 000-00. In December 2017, she received R5000-00. In January 2018 she received R2000-00. The total amount that was paid to her was R8000-00. In relation to the school principal, he mentioned that Nsele informed them that he would draft a letter and report the matter to the circuit office.
[5.3] Mr T Zondo [“Zondo”] testified as follows: He was an educator at Ntsinde Commercial School since March 2007. The Applicant was known to him as he was the school principal at Ntsinde Commercial School. He mentioned that there was a time when he was charged for sexual assault of a learner- Nokwethemba Thusi. His services were terminated. On 17 November he received the outcome of appeal from the MEC, his appeal was dismissed. He informed the Applicant of his intention to refer the matter to ELRC. The Applicant advised him not to leave the school up until an outcome of his ELRC dispute. In December 2017, he left for the marking centre. In January 2018 he returned to the school as per instructions from the Applicant. On 05 January 2018 he received a phone call from the Applicant to report at school on 08 January 2018. On 17 January 2018 he was sent by the Applicant to the Ubombo Circuit office to collect payslips. On 18 January 2018, he attended the principals meeting on behalf of the Applicant at the request of the Applicant. On 04 May 2018 he was requested by the Applicant to write a letter stating that his services at the school were on a voluntary basis. He refused to write the letter. In relation to the ELRC matter he discussed it with the Applicant. In resolving the ELRC matter, the Applicant advised him to raise R30 000-00 for the child to withdraw the case. He refused but the Applicant was persistent. On 01 December 2017, he transferred an amount of R6000-00, to the Applicant’s bank account. The money was meant for Nokwethemba. In relation to the ELRC, Nokwethemba testified and did not complete her testimony. On 10 July 2018 Nokwethemba did not attend the case. Mr Zulu informed the sitting that Nokwethemba was not interested in her case. The ELRC matter commenced in February 2018 at Mfolozi –Mtubatuba where the matter was conciliated. The arbitration hearing commenced on 31 May 2018 and concluded on 10 July 2018. On 24 July 2018 he received the arbitration award.
[5.4] Mr LM Zulu [“Zulu”] testified as follows: Between 2017 and 2018 he was employed by the Respondent as an Assistant Director for the Umkhanyakude district. In 2019 he left the Department of Education. The Applicant was known to him as the school principal for one of the schools in the Umkhanyakude district. Bundle A Pg.12, 29, 30 and 31 were known to him. Bundle A Pg.30 was written by him informing NATU about the charges against the Applicant. He received no communication from NATU. During the disciplinary hearing of the Applicant no issues were raised by the Applicant in relation to the consultation with the trade union. In relation to T Zondo, he mentioned that he was involved in his disciplinary hearing in 2013 and also his arbitration hearing. Zondo was charged for misconduct. Zondo was charged for sexual assault. The learner involved was Nokwethemba Thusi. During the disciplinary hearing of Zondo, Nokwethemba was called as a witness. As well as during the arbitration, in March 2018, Nokwethemba did not attend. The hearing did not take place. In May 2018, she was traced through her aunty. She testified but did not conclude her testimony, on the 2nd sitting she did not avail herself and the arbitration hearing was concluded. In May 2018 he received a letter from Nsele, Bundle A Pg.27. He arranged a meeting between himself, Nokwethemba’s aunty and Nokwethemba. At the meeting, Nokwethemba confirmed receiving monies from the Applicant. She was promised R20 000-00. The outstanding amount was R12 000-00. Charges of misconduct against the Applicant were prepared. During the disciplinary hearing of the Applicant, witnesses were called. Nokwethemba was amongst the witnesses that were called. She confirmed receiving monies from the Applicant to disappear and not attend the arbitration hearing. She disappeared in March 2018. He also mentioned that the Applicant was found guilty on all charges. His services were terminated due to the seriousness of the charges. The dismissal of the Applicant was procedurally and substantively fair.
[5.5] Mr AT Ndlovu [“Ndlovu”] testified as follows: In 2017 and 2018 he worked for the Respondent at the Ubombo Cluster. He left the Respondent in 2019. The Applicant was known to him. He was under his cluster. He was the school principal at Ntsinde Commercial School. In his testimony, he made reference to Bundle A Pg. 8 “outcome of appeal for T Zondo”. The presence of Zondo was the continuous insubordination. He received Bundle A Pg.8 and communicated it with the Applicant and requested him to communicate the same with Zondo. In December 2017, Zondo had no business with the school. In January 2018 Zondo collected payslips and also attended principals meeting. He also made reference to Bundle A Pg.32. It was an extract from the logbook. They made an entry when they visited the school on 15 May 2017. Upon their visit at the school, they did not perform their work due to the Applicant’s interference. They were chased away from the school by the Applicant. Only subject advisers were allowed to inspect the exercise books according to the Applicant. He also testified about his relationship with the Applicant. It was very difficult to work with the Applicant, he had no respect for his supervisors. They meet several times at a bilateral meetings. The Applicant disrespected him in front of other principals. The Applicant disturbed other schools, the local Chief Sifiso Myeni wrote to the District Director. The Applicant was charged for misconduct as per his recommendation. He also testified during the disciplinary hearing of the Applicant. The Applicant’ school got 100% pass most of the time.
[5.6] Mr SV Mthembu [“Mthembu”] testified as follows: He was employed by the Respondent at the Ubombo Circuit. He was the circuit manager, responsible for: giving support to schools, guide schools in terms of recruitment for employees, guidance on how to manage curriculum, to ensure that the results were not compromised. His office was next to Mkuze Primary School. At times he performed his duties at schools. He testified about the incident of 15 May 2017. He mentioned that he was with team at Ntsinde Commercial School. The principal of the school was the Applicant. The purpose of the visit at the school was curriculum management and delivery support. The team leader was AT Ndlovu. They did not perform their work, the Applicant denied them permission to engage with their activities of the day. Only subject advisers had permission to inspect the exercise books. The Applicant was holding the exercise books and denied him access to the exercise books. The team was shocked, confused and felt disrespected and embarrassed by the conduct of the Applicant. The Team leader convened a meeting and the decision of the team was that they were not welcomed at the school. An entry was made in the logbook, all members of the team signed the logbook.
Applicant’s case
[6] The Applicant testified and called four witness in support of his case. He testified as follows: He was employed by the Respondent since January 2005. Prior to the termination of his services, he was the school principal at Ntsinde Commercial School. He joined the school in January 2015. He testified about the incident of 15 May 2017, in the morning he had a meeting at Makhonyeni hall. Ms Myeni was in charge of the school as he had commitments with the trade union. He made an entry in the logbook. Before leaving the school, he meet with Mr Mthembu, who informed him of the purpose of their visit at the school. They discussed subjects to be inspected and challenges faced by educators at the school. Subject advisers were of great assistance for the educators on how to prepare the file and approach the lesson. He informed Ms Myeni about the visit of the circuit managers at the school. Grade 11B was allocated to the departmental officials. Grade 12 was occupied by the Chief Inspector Mr Ndlovu. Mr Mthembu was at grade 11B. He left the school for trade union activities. Whilst engaged with trade union activities, he received a text message from Ms Myeni, that the departmental officials left the school. They made an entry in the logbook that they were refused access to the exercise books, as such they claimed that they were prevented from performing their work. The team was made aware of the trade union activities. At no stage, did he stopped the team in performing their activities. Mthembu had no issues with the suggestions that subject advisers be the ones inspecting the exercise books. At no stage did he showed disrespect towards the departmental officials.
Relationship with Ndlovu.
He mentioned that according to Ndlovu, he was not doing things as required/expected. When he joined the school in 2015 the school was not performing well. He brought a positive change at the school, with 97% to 100% pass rate. Parliament congratulated him for the best performance provincially and nationally. Ndlovu was not pleased with him playing an important role in the union activities. Ndlovu had a personally agenda against him.
Relationship with Nsele.
He mentioned that Nsele was in charge of Mangwazana High School. They did not have a good relationship. When he introduced science at the school, Nsele was not pleased. He complained to the circuit manager Mr Thabede. Both of them were addressed by Thabede. Mr Ndlovu was against the school having science subjects.
Charges
In relation to the charges he made reference to Bundle A Pg 8 outcome of appeal of T Zondo. He received a letter from Ndlovu and was instructed to inform Zondo of the appeal outcome. On 20 November 2017, he gave Zondo the letter. He also gave Zondo contact details for the NATU legal section. Zondo informed him of his intention to appeal and remain at the school. Zondo also left for marking and received the salary.
January 2018.
Zondo was sent to collect payslips as he was the only educator with a vehicle. He was also sent to attend the meeting. Inspectors visited the school and had no problems with Zondo at the school.
June 2018.
Mr Mazibuko visited the school and enquired about Zondo’s presence at the school. Zondo left the school in June 2018. Ndlovu did not know what to do with Zondo. He gave no clear direction.
Payment to the student.
Zondo suggested that the student be paid in order to be on his side, he could not afford to lose employment. At no stage Zondo gave him the money.
Charge 2.
In 2017 he recruited students to attend at his school. The registration process was completed in October 2017. Nokwethemba was known to him. She was introduced by Zekhethelo. Nokwethemba’s aunty had a problem with Nokwethemba returning at Ntsinde whilst Zondo was still at the school, and that caused a huge misunderstanding between Nokwethemba and her aunty. Nokwethemba treated him as a father figure. He assisted Nokwethemba with school needs.
25 September 2018
Nokwethemba was a witness for the Respondent.
18 December 2018.
Nokwethemba was denied opportunity to testify on his behalf.
Monies to Nokwethemba
No monies were given to Nokwethemba except the R150-00. He knew nothing about R6000-00 and R5000-00. He never received any monies from Zondo. At no stage did he protected Zondo. He also distanced himself from the incident of 23 March 2018. Bundle A Pg. 38, he knew nothing about it. Bundle A Pg. 34 –conversation between him and Nokwethemba.
Consultation with the trade union
He mentioned that no consultation took place between the trade union and the Respondent. During the disciplinary hearing, the issue of consultation was not raised however on appeal to the MEC, it was raised.
[6.1] Ms J Myeni [Myeni] testified as follows: She made reference to Bundle A Pg.32. “Extract from the logbook” she read into the record. She mentioned that she was responsible for the school on the day in question, 15 May 2017. The departmental officials visited the school, and they were: Mr Ndlovu, Mr Mthembu and Mr Nkanini. She could not recall the surnames of the others. The Applicant was about to leave for trade union activities. Mr Ndlovu came and had a conversation with the Applicant. He then proceeded to grade 12. Ndlovu was handling exercise books from the learners. Mr Mthembu also came and conversed with the Applicant. She also mentioned that she assisted the team by collecting the files from the educators. They were there to observe different subjects. Ndlovu returned the exercise books and the diary. Ndlovu convened the meeting and informed the school management team [SMT] that they were leaving as they were informed that they were not the relevant people to check the files. A request was made that exercise books and files be returned to relevant educators and learners. The logbook was also handed over to Ndlovu. The team left after the Applicant had already left the school.
[6.2] Ms Z Gina [“Gina”] testified as follows: She was 24 years old, not schooling. Between the periods 2010 to 2017, she was schooling at Ntsinde Commercial School. The Applicant was her school principal. Nokwethemba was her sister. Her aunty refused to allow her to study at Ntsinde Commercial School. A request was made for the Applicant to intervene and speak to Nokwethemba’s aunty. In 2017 Nokwethemba was introduced to the Applicant. Upon visiting the school, Nokwethemba gave the Applicant the contact details of her aunty. Nothing was given to Nokwethemba by the Applicant. In relation to Mr Zondo, she mentioned that she knew him. She also knew about the incident between Nokwethemba and Zondo.
[6.3] Ms N Thusi [Thusi] testified as follows: She was 24 years old. She knew the Applicant. Zekhethelo introduced her to the Applicant. She had an interest in studying at Ntsinde, however her family was against her studying at Ntsinde due to the incident that occurred between her and Zondo. She visited the Applicant at the school when she was introduced by Zekhethelo and requested Applicant to speak to her aunty on her behalf. She informed the Applicant about the incident between her and Zondo. The Applicant wanted nothing to do with Zondo’s matter. The Applicant gave her R150-00 for airtime and transport. She was in the company of her aunty at Mkuze and they meet with the Applicant. Her aunty had a discussion with the Applicant however it was not fruitful as her aunty thought Applicant wanted to discuss Zondo’s case. She mentioned that she had a good relationship with the Applicant. She considered him as a father, the Applicant assisted her pocket money and school trip money. The Applicant bought her the things she was in need of. She never received R5000-00 and R1000-00 from the Applicant. In relation to Bundle A Pg. 27, she confirmed she did not write the life science, geography and tourism examinations. She did not write these three subjects as she knew she was not going to make it. When schools re-opened, Nsele summoned her to his office and enquired about the subjects she did not write. She distanced herself from the contents of Bundle A Pg. 27 except the part of the three subjects that were not written. She also mentioned that she knew nothing about the following monies: R2000-00, and R12 000-00. She was advised by Nsele to accuse Applicant that he was the cause of her not writing the exams. Bundle A Pg. 28 –letter. It was read into record and she distanced herself from it. There were no monies she expected from Zondo. In relation to the case at the district office, she stated that it was Nsele’s suggestion that she makes false allegations against the Applicant. She testified during the disciplinary hearing against the Applicant under duress. After her testimony she felt guilty. She meet with the Applicant and confessed. The following day of the sitting, she was not allowed to testify. In relation to Zondo’s case, she mentioned that she did not attend the hearing to its finality. There were no monies she received from the Applicant to stop attending Zondo’s case. Bundle A Pg. 35, 38, 39 and 40 pictures of her and Zekhethelo at Empangeni for purposes of attending a case. From the onset she was the witness for the Applicant.
[6.4] Mr P Maseko [“Maseko”] testified as follows: He was employed by the Respondent at Mkhanyakude District. He was a Senior Education Specialist. In relation to the disciplinary hearing of the Applicant, he mentioned that he represented the Applicant. On charge 1 he mentioned that, when the departmental employees visited the schools they encountered challenges e.g. the schools were busy with tests or sport day. They took a resolution to inform schools prior visiting them, so that they would be prepared. The resolution was taken after 15 May 2017. No employee was charged due to non-preparedness. The Applicant did not deserve to be charged and his services terminated. Section 18 was silent on the charge. On charge 2 he mentioned that, dismissal was not appropriate. All witnesses during the disciplinary hearing testified about what they heard from Nokwethemba, however during cross-examination, Nokwethemba changed her version. In preparation for the case Nokwethemba was their witness. After the hearing Nokwethemba approached them and apologised about the false testimony she gave during the disciplinary hearing. He also made reference to Bundle A Pg.27. He mentioned that all witnesses made reference to that letter including Nokwethemba. All that was contained in the letter was from AG Nsele according to Nokwethemba. On the 1st day of the disciplinary hearing they decided not to bring their witnesses as the Respondent had a number of witnesses. On 2nd day, Nokwethemba planned to testify for the Applicant but was denied by the chairperson. Bundle A Pg.13- charge 3, he mentioned that it was unfair for the Applicant to be dismissed because of Zondo’s matter. Many people were involved in Zondo’s matter. Ndlovu knew Zondo, he witnessed him at the school and also in collecting payslip. It was not the duty of the Applicant to hire and dismiss. Bundle A Pg. 22-24, the Applicant was senior member of NATU, when he was charged his organisation had to be informed of the charges he faced. Bundle A Pg.31- no consultation meeting took place between NATU and the Respondent. Bundle A Pg.28- “letter”. It was presented during the disciplinary hearing.
Analysis of evidence and argument
[7] In this case, the existence of the dismissal is common cause, therefore the Respondent had to prove that the dismissal of the Applicant was fair. It is trite that the employer bears an onus to justify the dismissal once the existence thereof has been proven by the employee. In terms of Section 188 of the Labour Relations Act (LRA) the employer must prove that the dismissal was for a fair reason based on the employee’s conduct, capacity or employer’s operational requirements and that it was executed through a fair procedure.
[7.1] At the commencement of these proceedings, parties exchanged bundle of documents. They handed in bundle of documents that formed part of these proceedings. The Applicant submitted Bundle “B”. The Respondent submitted Bundle “A”. Reference was made to the bundle of documents during the arbitration proceedings when evidence was led through witnesses. Both parties in these proceedings relied on oral evidence and documentary evidence.
[8] Procedural Fairness: At the commencement of the proceedings, the Applicant’s representative placed on record that the procedural fairness is challenged.
[8.1] In determining the fairness of dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal Schedule 8, item 4 deals with Fair Procedure. And also to take into consideration the principle laid down in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC);(2006) 9 BLLR 833 (LC). It was held that the employer was merely required to conduct the investigation, give an employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.”
[8.2] The Applicant contested the procedural fairness that led to his dismissal. In relation to procedural fairness, the Respondent called Zulu and reference was made to Bundle A Pg.30 Zulu mentioned that NATU was made aware of the charges against the Applicant as per Bundle A Pg. 30. He received no communication from the NATU. During the disciplinary hearing of the Applicant the issue of consultation was not raised. It is common cause that the Applicant was a chairperson of NATU. It was also common cause that during disciplinary hearing Applicant was represented by Maseko. It was the evidence of Maseko during cross-examination, they were given sufficient time to prepare for the case. The Respondent submitted Bundle A Pg 30-31 as proof that NATU was informed of the charges against the Applicant. On the other hand, the Applicant distanced himself from the documents on Pg.30-31. The Respondent submitted that they complied with item 4[2], Schedule 8 of the LRA. The Applicant disputed such. Let us say, I accept the Applicants submission NATU was never consulted despite the existence of Bundle A Pg.30-31, and fax no belonging to NATU. The question that we need to address, what prejudice did the Applicant suffer as a result of non-compliance with item 4[2] of Schedule as they allege non-compliance.? According to Maseko, they were given sufficient time to prepare for the case, at no stage during the disciplinary did they raise the issue of non-consultation. No evidence was placed before me that the Applicant suffered prejudice as a result of non-consultation. In making determination as to whether failure to consult with the trade union prior holding a disciplinary hearing against trade union representative rendered disciplinary hearing procedurally unfair. I am guided by the dictum in BIFAWU & ANOTHER v MUTUAL & FEDERAL INSURANCE COMPANY LTD [JA/15/2003][2005]ZA LAC 10, [2006] 2 BLLR 118 [LAC] “ The Court considered the fact that the employer failed to consult with the union before taking disciplinary steps against the shop steward. The Court held that this would not automatically render a dismissal procedurally unfair, as long as there is no prejudice suffered by the employee.” As indicated above, there is no evidence before me that the Applicant suffered prejudice, therefore I find no procedural improprieties and conclude a fair procedure was followed in terminating the services of the Applicant.
[9] Substantive Fairness: In determining the fairness of the dismissal, the law requires me to consider the Code of Good Conduct and the CCMA Guidelines on Misconduct Dismissals. Further, in terms of the Constitutional Court judgment in Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC), I must consider all relevant circumstances in determining fairness of the dismissal.
[10] Before analysing the evidence of the witnesses. It is worth important to first explain the nature of an arbitration according to CCMA GUIDELINES ON MISCONDUCT para 17 “An arbitration is a new hearing which means that the evidence concerning the reason for dismissal is heard afresh before the arbitrator. The arbitrator must determine whether the dismissal is fair in light of the evidence admitted at the arbitration.”
[11] The Respondent in proving its case led evidence of seven [7] witnesses. Their evidence has been summarised above, it will not be repeated. Their evidence was clear. It was consistent with the probabilities. It was clear and satisfactory. They appeared to be reliable and credible witnesses. Under cross examination, they maintained their version. The evidence of the witnesses corroborated each other and as such, I find it acceptable. Unfortunately, the same cannot be said about the Applicant’s case for the reasons stated below
[12.] The Applicant testified and called four witnesses in support of his case. It is important to highlight that all throughout the proceedings, the Applicant was warned to bring to the attention of his representative all he disputed as it relates to the testimony of the witnesses of the Respondent. He was reminded with every witness that testified for the Respondent. I was also privileged to observe the Applicant writing notes to his representatives all throughout the proceedings.
[12.1] With the witnesses of the Applicant, I will start with Myeni. She appeared to be an honest witness. She did not exaggerate anything. Her evidence was in relation to the incident of 15 May 2017.She mentioned that Ndlovu had a discussion with the Applicant when he arrived at the school, and then proceeded to grade 12. Under cross-examination, she maintained her version that Ndlovu and the Applicant had a discussion which was a bit abnormal as they were raising their voices. One could tell something was not right between them.
[12.2] According to the Applicant, he did not converse with Ndlovu, he only spoke with Mthembu. Myeni also mentioned that she informed the Applicant when she returned to school in relation to the departmental officials and their visit at the school. The Applicant on the hand mentioned that he received a text message from Myeni updating him
[12.3] Zekhethelo was called by the Applicant but it’s not clear, why she was called as she added no value to the Applicants case. Her evidence was not relevant on any of the charges that the Applicant faced and was dismissed for. Maseko was the last witness for the Applicant. Most of his testimony was in relation to what transpired during the disciplinary hearing of the Applicant. During cross-examination, he maintained that they had sufficient time to prepare for their case. They consulted with the witnesses and one of the witnesses being Nokwethemba. He knew what the witnesses were to testify about as per the Applicant’s instructions.
[12.4] Nokwethemba was amongst the key witnesses for the Applicant. Her name was mentioned by both sides, the Respondent’s witnesses and Applicant’s witnesses. On the side of the Applicant, only Myeni did not mention Nokwethemba’s name. New evidence was brought by Nokwethemba which was never tested on Respondent’s witnesses. To be specific to Nsele. During her evidence-in-chief she mentioned that, it was Nsele idea that she fabricates allegations against the Applicant, the reason as to why she did not write the exams, it was the Applicant who instructed her to be stay away because of the case that she had to attend. She was frightened by Nsele’s words that she would be expelled by the school. Surprisingly, Nsele was called by the Respondent as a witness, he was cross-examined at length but the version of Nokwethemba was not put to him. Maseko’s evidence was that they consulted with their witnesses in preparation for the case including Nokwethemba. In short, the Applicant knew what Nokwethemba was bringing to the hearing. Why was Nokwethemba’s version not tested when Nsele was cross-examined, he was not allow an opportunity to comment during cross-examination. There is a big danger in not cross-examining a witness on relevant and important aspects, generally that suggest the evidence of the witness be accepted. In South African law of evidence 2nd edition Pg.912 by DT Zeffert and AP Paizes “ If a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine the witness upon the facts which he intend to prove in contradiction, so as to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon matters which it will be alleged make his evidence unworthy of credit.” In ABSA BROTHERS [PTY] LTD V MOSHOANA & OTHERS [2005] 10 BLLR 39 [LAC] “the Court stated that it was an essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross-examine a witness but, indeed also a responsibility to cross-examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may in general imply an acceptance of the witness testimony”. We learnt for the first time during Nokwethemba’s testimony that Myeza was not present in Nsele’s office. Myeza was called by the Respondent and his evidence was not challenged when he gave an account of what transpired in Nsele’s office in the presence of Nokwethemba and Nsele.
Both Nsele and Myeza have since left, we are told not to believe or accept their evidence, whilst they were present, their evidence was not challenged. When both these witnesses testified, the Applicant already knew Nokwethemba’s version. Why was the version of Nokwethemba not tested on these witnesses? Is it because it was an afterthought? Nokwethemba was very selective in her recollection of events, to mention few: Under cross-examination, she mentioned she could not recall how old she was in 2012, she could not recall whether she was schooling in 2018. Photos on Bundle A Pg.38-41 were taken this year but not certain when. She could not remember how many times she testified against Zondo. It was also her testimony that she lied during the disciplinary hearing of the Applicant because she testified under duress. I must mention she did not appear to be someone who was interested in assisting the hearing. At all times she was warned to take time in responding and seek clarity on questions that were not clear to her before responding.
With all that I have highlighted above in relation to Nokwethemba, I was painting a picture of the type of witness Nokwethemba was. She did not assist the Applicant’s case at all, instead she damaged it. She did not appear to be a credible and reliable witness at all.
[12.5] Lastly, as it relates to the Applicant, the visit of the departmental officials on 15 May 2017 at the school without the subject advisers and the Applicant not being notified timeously about the visit did not sit well with the Applicant. He already had plans for that day, to attend trade union activities hence Myeni was already assigned to head the school. The Applicant voiced his dissatisfaction about the subject advisers who were not part of the team, whereas they were the ones who coached the educators on how to prepare lesson. During evidence-in-chief, the Applicant was asked three times whether he spoke to Ndlovu and his response was “no”. Myeni’s evidence both during evidence-in-chief and in cross-examination, was that Ndlovu had a discussion with the Applicant, when he arrived at the school and later proceeded to grade 12. She also mentioned that their discussion was a bit abnormal as they were raising their voices. One could tell something was not right between them. The Applicant was not truthful when he said he never spoke to Ndlovu. Myeni was the Applicant’s witness, her evidence was very clear. We learnt for the 1st time during the Applicant’s case that the Applicant never conversed with Ndlovu, and such evidence was never tested with Ndlovu. And also, Ndlovu had a vendetta against the Applicant. Such evidence was never tested on Ndlovu. We only heard about it during the Applicant’s case. Ndlovu was never given an opportunity to comment on it. According to the Applicant, Zulu had a vendetta against him. When Zulu testified such version was not tested with him. We only learnt about it during the Applicant’s case. No explanation was provided as to why such was not tested with Zulu. I must mention, most of the important aspects were not challenged on the Respondent’s case just like the few that I have highlighted above, despite the Applicant being warned to put as much of his case as possible all throughout the proceedings. In relation to Zondo, the Applicant knew Zondo was dismissed as per Bundle A Pg. 8. He read the letter to him. He advised Zondo about NATU legal section. Zondo reported to him in February 2018 that he did not receive his salary and he did not do anything about it. He did not enquire from human resource section because he knew that he was no longer an employee of the Respondent. The Applicant was the manager of the school, it was expected of him to take action on any issues that the educators and learners were faced with. He was entrusted with that responsibility. On the issue of Zondo, he did not act because he was aware of Zondo’s status at the school. It was Zondo’s evidence during cross-examination “It was the Applicant’s suggestion that I remain at the school whilst attending the case at the ELRC. I knew my services were terminated by the Respondent.” His evidence was not challenged. Version of Zondo that Applicant suggested that Nokwethemba be paid R30 000-00 to withdraw the case was not challenged. And also, he deposited an amount of R6000-00 on 01 December 2017 and this was not disputed instead it was put to him: “It could happen that Buthelezi utilised the R6000-00 on his own accord”. The response “yes possible, he might have given her or not I do not know.” For the reasons I have highlighted above, I do not find the Applicant as a credible and reliable witness. I have not been convinced by the Applicants evidence.
[13] In considering the totality of circumstances, in light of the above I accept the evidence of the Respondent’s witness as more probable version and a true reflection of the facts. Therefore, I find that the Respondent discharged the onus placed on it in terms of section 192[2] of the Labour Relations Act 66 of 1995, to show that the dismissal of the Applicant was substantively fair.
Award
[14] The dismissal of the Applicant, Mr QHAWE Buthelezi was both procedurally and substantively fair.
Signature :
Commissioner : Siziwe Gcayi
Date : 08 October 2021