ELRC11-15/16GP

Case No ELRC11-15/16GP

In the matter between

RADINGWANA, M Applicant / Employee

And

TSHWANE SOUTH TVET COLLEGE Respondent / Employer



COMMISSIONER: M NAIDOO

HEARD: 06 JULY 2015; 28 SEPTEMBER 2015; 12 OCTOBER 2015 AND 15 OCTOBER 2015

DELIVERED: 23 OCTOBER 2015


AWARD

Details of hearing and representation
[1] The arbitration proceedings took place on 6 July 2015, 28 September 2015, 12 October 2015 and 15 October 2015 at the Tshwane South TVET College, 85 Francis Baard Street, Pretoria. The proceedings were mechanically recorded. The applicant, Mr M Radingwana, was present and represented himself. The respondent, the Tshwane South TVET College, was present and represented by Mr Werner Bruyns, an attorney of the law firm Couzyn, Hertzog, Horak and Wessels. The proceedings were conducted in English. Mr T B Thabane assisted with interpretation services in respect of one witness.
Issues to be decided
[2] The issues to be decided in this matter are: whether the applicant was dismissed by the respondent as contemplated in section 186(1)(a) of the Labour Relations Act of 1995 (“the LRA”) and, if so, whether the dismissal was procedurally and substantively fair as contemplated in section 188(1) of the LRA. If the dismissal is found to be unfair, the further issue to determine was what remedy must be awarded in terms of section 193(1) of the LRA.
Background to the issues in dispute
[3] The applicant was employed by the respondent on 1 March 2013 as a lecturer in Electrical Engineering. He earned an annual income of R174 000. He was dismissed on written notice for misconduct on 27 March 2015, following a disciplinary hearing. His dismissal was confirmed by written notice, following an internal appeal process, on 15 April 2015.
[4] On 19 May 2015 the applicant referred an unfair dismissal dispute to the Education Labour Relations Council (“the ELRC”). The dispute was conciliated on 17 June 2015 and remained unresolved. Commissioner K C Thema issued an ELRC Form E3 Certificate of Outcome on 17 June 2015. On 17 June 2015 Commissioner Thema also convened a pre-arbitration conference with the parties. A draft pre-arbitration minute, signed by Commissioner Thema, was filed with the ELRC. The pre-arbitration minute was not signed by either party.
[5] The ELRC sent a notice to the parties setting the dispute down to be arbitrated on 6 July 2015. The arbitration did not proceed on 6 July 2015, because the applicant was absent. The ELRC had erroneously served the notice of set-down on the applicant by sending it to an incorrect email address. The ELRC subsequently set the dispute down to be arbitrated on 28 September 2015. The arbitration commenced on 28 September 2015 and remained part-heard until 15 October 2015, when it was finalized.
Preliminary Issues
[6] I asked the parties to address me on why I should allow the respondent to be legally represented. According to the applicant’s ELRC Form E1, the applicant averred that he had been dismissed for misconduct. Hence, the respondent was not entitled to be legally represented by Mr Bruyns, unless an application to that effect had been successful.
[7] Mr Bruyns contended that the dispute entailed complex legal technicalities relating to the appropriateness of the sanction of dismissal. He argued further that the applicant is a lecturer who is highly educated. The applicant pointed out that he had no objection to the respondent being represented by Mr Bruyns. He explained that he would not be prejudiced by Mr Bruyns representing the respondent.
[8] I issued a ruling on record on 28 September 2015 allowing the respondent to be legally represented.
Summary of the evidence and arguments
[9] The parties presented opening statements. Ms Mphuti Anita Ngwepe, Mr L Etchells, Mr Joseph Tokelo Chiloane, Mr Trevor Charles Fredericks and the applicant testified. The parties submitted four bundles of documents. The parties made closing arguments. When the parties made opening statements I engaged them with a view to narrowing down the issues.
[10] Mr Bruyns conceded that the applicant was dismissed. Mr Bruyns averred that the draft pre-arbitration minute should be accepted as what had transpired at the pre-arbitration conference as the parties had signed the handwritten pre-arbitration minute. The applicant disputed that he had signed such a pre-arbitration minute. I adjourned the proceedings on 28 September 2015 to 12 October 2015 to give Mr Bruyns an opportunity to source the handwritten pre-arbitration minute from the ERLC and/or Commissioner Thema. On resumption on 12 October 2015 Mr Bruyns failed to produce the hand written pre-arbitration minute.
[11] Mr Bruyns explained that the applicant had pleaded guilty to allegations of misconduct proffered against him at the disciplinary hearing. The allegations were serious and therefore his dismissal was substantively fair. The applicant explained that he was provoked by Ms Ngwepe on 17 February 2015 when he swore at her in anger. He pointed out that he was remorseful. He has been an educator for 18 years with a clean record. He acted in anger and the respondent should have given him an opportunity to cool down before intervening. Had he been afforded this opportunity he would have apologized and the matter would not have resulted in disciplinary action.
[12] In a written statement signed by Ms Ngwepe on 17 February 2015, Ms Ngwepe explained:
“It was on the 17 February 2015 at 16H35, when Mr Radingwana approach at the gate. I suppose to search his vehicle and he never allowed me to search his vehicle. He told me that you want my car key or my car. I said to him can I search your car again. He started shouting and arguing me. He used a strong word like (fotsek) and (nnyomago). And then I called my supervisor.”

[13] On 18 February 2015 Mr Etchells (“letter of 18 February”), the respondent’s Campus Manager, wrote a letter to Mr Chiloane, the Principal and Chief Accounting Officer, in which he explained as follows:
“Subject: UNRULLY BEHAVIOUR OF MR RADINGWANA (LECTURER) AGAINST THE SECURITY PERSONNEL
It was reported to my office at 07:30 on the 18th of February 2015 that there was an incident between Mr Radingwana and the security lady that wanted to search his car when he was about to leave after 14:30. It was reported that he allegedly disgraced the lady by shouting vulgar words towards her.”

[14] Mr Etchells convened a meeting with, amongst others, the applicant in the morning of 18 February 2015. Mr Etchells quoted the applicant as having told him (Mr Etchells):
“I will not allow a woman to search my car as it is not allowed in my culture.”

[15] Mr Etchells went on to explain, in reference to the applicant, in his letter of 18 February that:
“In my view he has anger issues towards women …”

[16] Mr Etchells thereafter drafted a letter to the applicant. The letter is dated 18 February 2015, in which he instructed the applicant to not park his car inside the respondent’s premises from 19 February 2015 pending a resolution of the issue by Mr Chiloane. I shall refer to this letter as the instruction not to park. The instruction of 18 February was delivered to the applicant by one of Mr Etchells’ subordinates.
[17] On 19 February 2015 the applicant was served with a notice to attend a disciplinary hearing on 27 February 2015. Incorporated in the notice was a list of the following allegations of misconduct (“the charges”):
“Charge 1: Verbal Assault
“… on or about 17 February 2015 you verbally assaulted Ms M A Ngwepe, a security officer at the Pretoria West Campus, in that you made the following utterances when she asked to search your vehicle:
1.1 ‘Voetsek’
1.2 ‘Nnyamago’
ALTERNATIVELY: Unbecoming/Unacceptable Conduct
… you conducted yourself in an unbecoming/or unacceptable manner in that you shouted and argued with Ms M A Ngwepe … and uttered the following words … when she asked to search your vehicle:
1.1 ‘Voetsek’
1.2 ‘Nnyamago’
“Charge 2: Failure to Comply with Security Directive
… you failed to comply with a security directive given to you by Ms M A Ngwepe who had the authority to search your motor vehicle upon exiting the Pretoria West Campus. When she requested that you comply with such directive you became rude and/or aggressive and/or insulting towards her, thereby refusing to comply.”

[18] The applicant was advised of his rights in the charge sheet.
[9] On 24 February 2015 the charge sheet was supplemented with two further charges (“the supplemented charge sheet”):
“Charge 3: Failure to Adhere to Lawful Order
… on or about 19 February 2015 you failed to adhere to a lawful order given to you in writing by your Campus Manager, not to park your vehicle inside the premises of the College, in that you totally disregarded this lawful order and you parked your vehicle on the premises.
Gross Insubordination
… on or about 19 February 2015 you were grossly insubordinate when you blatantly ignored the instruction given to you by your Campus Manager, to immediately proceed to the Office of the Principal. You further ignored the Principal, when your Campus Manager handed you a cellphone for the Principal to speak to you about the instruction.”

[20] Mr Chiloane also explained to the applicant in the supplemented charge sheet that he was suspended pending the outcome of the disciplinary hearing. The reason given for his suspension was: “your presence is a threat to the safety and well-being of personnel”.
[21] By letter dated 19 February 2015, Mr Chiloane addressed a letter to the applicant (“the notice of intention to suspend”) inviting him to make representations as to why he should not suspend him for having allegedly uttered the words “voetsek” and “nnyamago” when he had the altercation with Ms Ngwepe. I shall refer to these two uttered words as “the first foul word” and “the second foul word” respectively.
[22] In his response to the notice of intention to suspend, the applicant addressed a letter to Mr Chiloane in which he stated:
“I promise to avoid confrontation with the concerned complainant and to make no comments based on the allegations and the related charges…
I plea for the right approach, respect and courtesy from the Security staff during their daily searching duties.”

[23] On 20 March 2015 the applicant addressed an email to the respondent in which he stated:
“… I apologise for disregarding the instructions from the College Management in intervening to resolve the matter.
This is the first serious offence by me at TSC.
I worked for the Education Department for almost 18 years.
…”

[24] By letter dated 27 March 2015 the respondent notified the applicant that he was dismissed (“notice of dismissal”). By letter dated 30 March 2015 the applicant sent a notice to the respondent in motivation of his appeal application (“letter of 30 March”). In his letter of 30 March the applicant explained:
“I am appealing against the sanction received by me on the 27 March 2015 based on the following request:
1. That the dismissal is too harsh and not progressive to allow me to mend my conduct
2. That I personally pleaded guilty on all charges without wasting time so that we arrive at the conclusion of the matter.
3. That I am remorseful of what transpired and wish it never happen again.
4. That you consider that I am 55 years old, only left with few years to retire from the system.
5. That I have been in the system for 18 years without any case of misconduct
6. That what I have worked for will be a total disgrace for the entire family considering my numerous financial commitments and my last born dependant who is only 12 years old and still need my financial assistance.
7. Considering the bonds, policies and instalments which must be paid up.”

[25] By letter dated 15 April 2015 the Chairperson of the Appeals Committee addressed a letter to the applicant in which it was stated:
“… the seriousness of the charges heavily outweighs the issues raised in your appeal. At your age you are expected to know and understand that every action has a consequence and that your behaviour cannot be condoned in any way whatsoever.
The Appeals Committee has no alternative but to dismiss your appeal.
…”

[26] In his ELRC Form E1, which the applicant signed on 19 May 2015, the applicant stated:
“On the 27/03/2015 I was dismissed from work for misconduct after I pleaded guilty to the charges against me…”
…
Relief Sought
Reinstatement because the dismissal was substantively unfair. Imposition of a sanction which the employer deem fit other than dismissal eg a month suspension without pay.
…
Special Features
The time limit to resolve the conflict at campus level was very short. I was not given enough time to calm down and apologise to the security officer (Ms M A Ngoepe). The quick decision of dismissal was too harsh without prior warnings despite the fact that I was completely unprotected and not conversant with legal proceedings and terminology.
…
FAIRNESS/UNFAIRNESS OF DISMISSAL
(a) Procedural Issues
Do you think that the dismissal was procedurally unfair? … YES NO
If yes, why?
Schedule 8 of the Labour Relations Act 66 of 1995 (The Code of Good Practice was not followed in arriving at the sanction.
(b) Substantive Issues
Do you feel the reason for the dismissal was substantively unfair? YES NO
The words I uttered do not cause any bodily harm or injury. ‘voetsek’ simply means ‘go away’. Dismissal was not appropriate sanction. A final written warning would be an appropriate sanction under the circumstances.
…”

[27] At the commencement of the arbitration on 28 September 2015 the applicant submitted a written opening statement, in which he stated:
“…
5. On … 17th February 2015 (15h30) as I was leaving the college premises and approaching the security gate house, Ms Ngwepe, the Security Officer, rudely and impolitely, order to me out of the car so that she could perform the routine security check.
6. I had delayed getting out of the car because I was experiencing a minor glitch with the car’s central locking system operating the doors: she said I was wasting her time – did not take kindly of her remarks.” (my emphasis)
7. I retorted by swearing at her to the effect that I said what her problem with me was and dismissed her rudely to ‘voetsek’, meaning that ‘she needed to back off or get lost’. She simply walked away to the security gatehouse left me waiting for about 10 minutes or so without communicating any further or attending to me at least. And, I then decided to drive away and left.
8. On … 18th February 2015 (around 07h30), Mr Etchells, the Campus Manager called me to his office; and on arrival … I joined other people who were already waiting: I later established that it was the security personnel, the head of security, Ms Ngwepe. Mr Etchells briefly outlined the allegations regarding the incident that transpired the previous day around the security gatehouse area between me and Ms Ngwepe.
9. … in response I mentioned to Mr Etchells that it has been my intention to make peace and resolve the matter with the senior security personnel. The Senior Security officer simply pointed out that I should not park my vehicle in the college premises anymore.
10. Mr Etchells ended the meeting and I went to the classroom.
11. Later at about 08h30 on the same day (18th February 2015) Mr Ntshalintsahli, Engineering Head of Department called me to once again report to the Campus Manager’s office. Mr Etchell’s Personal Assistant handed me a letter to sign which instructed me not to park my vehicle in the college premises anymore.
12. I refused to sign the letter in the absence of Mr Etchells who she told me was involved in a meeting.
13. … 30 minutes later while I was busy lecturing both my departmental head of Engineering, Mr Ntshalintsahli and the Campus Manager, Mr Etchell came to the class and ordered me out of the class; and, Mr Etchell was on the cellphone at the time. I followed them while reiterating to them that I had wanted to resolve the matter with security personnel outside the formal disciplinary process but Mr Etchells responded by saying that he has already escalated the matter to the Chief Accounting Officer (CAO)/Principal Mr J T Chiloane and that I had already been charged.
14. On arrival at Mr Etchell’s office I found the messenger … with the charge sheet…
15. On … 19th February 2015 (07h15) I reported for duty as usual and parked my vehicle inside the College premises. I was not able to carry out or comply with Mr Etchell’s order having considered the risk of parking my car outside College premises and the implication of non-compliance with insurance cover and conditions.
16. Mr Etchells was not available at the time that letter was handed to me to either discuss or clarify the instruction in terms of its reasonableness …
17. … 15 minutes later I was served with a Precautionary Suspension letter together with addendum stating to further two charges …
18. At about 08h30 while I was packing my personal belongings in the Staff Room and preparing to leave the premises, Mr Etchells ordered me to leave the premises immediately and threatened to call the security officers if I did not do as he ordered. …
…
20. I am contesting my dismissal on basis of substantive fairness. I’m challenging the severity of the sanction and argue that dismissal as a sanction was not appropriate …
21.1 I had no bad intentions with my behaviour as I only wanted to voice my displeasure in the manner that the Security Officer (Ms Ngwepe) provoked and disrespected me by swearing at her.
…
23. … the plea … I tendered out of remorse; honesty and preparedness to honour my actions and take responsibility for my conduct though I had, in the process, waived my rights to defend myself.
24. The Chairperson erred in not giving me the opportunity to raise circumstances and plead in mitigation …
25 … I was financing repayment of loans which I have repudiated as a result of my dismissal …
...
26.1 - … (I am 55 years old);
- … I have uninterrupted 18 years in education sector;
- My experience and Competency as an Educator (I have carried and performed my duties with diligence & excellence);
- … (I am … the breadwinner … taking (care of) the wellbeing of my mother (89 years old); wife & daughter in Grade 12, and a guardian to my late younger sister’s 4 children ranging from ages 9 to 19;
…
- I was willing to … apologise unreservedly to the affected parties.
26.2 I have always had and enjoyed a friendly relationship with the security officers deployed at the college. … the circumstances that led to incident … was unfortunate … Ms Ngwepe provoked and disrespected me by rudely ordering me out of the car even though she could have realised that I was experiencing problems with the central locking system in opening the doors problem and that … out of frustration and anger I verbally assaulted her an action I later regretted.
26.3 … the letter … that I should NOT park my vehicle inside the College premises. I failed to carry out or comply with this instruction because it was not consistently applied by the Employer to all staff members … but was applied to me only following the ‘incident’ for which I was being subjected to a disciplinary action.
…”

[28] The applicant averred, at the conclusion of his opening statement, that he sought retrospective reinstatement and compensation. The applicant also submitted a further written document at the commencement of the arbitration (“applicant’s written arguments”). The applicant made the following salient submissions in his written arguments:
“[21] … It was not reasonable or justifiable … to have brought complaint 4 … because … I did not … refuse to report to the Principal’s Office.
[22] … I was extremely stressed and upset throughout the period leading to the hearing …”
[24] c. Even though I was remorseful of my conduct management still exerted pressure on me by their own hostile and confrontational communication approach.

[29] The applicant also maintained, in his written arguments, that the instruction not to park was unreasonable as the respondent did not balance such an instruction against the risk of car-theft and that such an instruction would place the applicant at risk with his car insurers. He also pointed out that Mr Etchells had been unreasonable by not meeting with him (the applicant) to discuss the instruction not to park. The applicant pointed out that he did not refuse to carry out the instruction. He stressed that he failed to carry out the instruction because of the prevailing circumstances. Hence, argued the applicant, he was not insubordinate.
[30] The applicant also argued that the chairperson of the disciplinary hearing should have enquired about the circumstances surrounding his conduct when he pleaded guilty, particularly given that he was unrepresented and is a lay person with regards to labour proceedings. By not so doing, argued the applicant, the chairperson had acted unfairly. In conclusion, the applicant argued that the disciplinary chairperson did not take into account the totality of circumstances when he pronounced on his recommendation to dismiss.
[31] Ms Ngwepe testified that on 17 February 2015 she wanted to search the applicant’s car when he approached the security gate to leave the campus premises. As is the practice, the applicant was expected to come out of his car for her to search it. The applicant, however, did not allow her to search his car. The applicant then argued with her. During the argument the applicant used the first and second foul words. The second foul word, explained Ms Ngwepe, is a Tshwane word which is loosely translated as referring to ones “mother’s genitals”. The applicant did not dispute this. Ms Ngwepe explained that her dignity was impaired by the conduct of the applicant. She went to her supervisor to complain about the applicant’s conduct.
[32] In cross-examination, the applicant put it to Ms Ngwepe that he was delayed in getting out of his car because he had a problem with his central locking system. Ms Ngwepe retorted that she had not seen the applicant being delayed to come out of car. The applicant also asked Ms Ngwepe as to why she had not asked him why he was delaying in coming out of his car. Ms Ngwepe responded that the applicant had told her that he was looking for his car keys. She later said that the applicant was not struggling to get out of his car and that he had not told her that he was having problems with his immobilizer. Instead the applicant had put his hand out and swore at Ms Ngwepe by uttering the first and second foul words. He then drove off.
[33] Ms Ngwepe pointed out that her supervisor was behind her at the time and had witnessed the entire ordeal. The applicant explained to Ms Ngwepe, in cross examining her, that he disputed her version and that he had eventually managed to come out of his vehicle but could not discuss the problem he was having because she (Ms Ngwepe) had “disappeared”. The applicant explained further that he could not find any other security official at the gate. He just stood there waiting for about six to eight minutes and then left.
[34] Later in her testimony Ms Ngwepe reiterated:
“I was standing with my colleague. He swore and drove off. I had a witness who heard everything”.

[35] The applicant admitted to Ms Ngwepe that he uttered the first and second foul words because he was frustrated and provoked. He wanted to apologize to her as it was out of character for him to use such words; but she had “disappeared”. Ms Ngwepe retorted that there was no reason to have been frustrated as she was merely doing her work.
[36] Mr Etchells testified that he is the Campus Manager. He oversees all disciplinary action in regard to employees employed at the Pretoria West campus. One of his line managers, to whom he reports, is Mr Chiloane. He knows the applicant as being a lecturer at the campus for about two years.
[37] He called a meeting with, amongst others, the applicant, Ms Ngwepe and Ms Ngwepe’s supervisor to take place at his (Mr Etchells’) office at 07:30 on 18 February 2015. His aim was to “sort the problem out”. At the meeting the applicant was annoyed and persisted that he be given an opportunity to resolve the dispute with Ms Ngwepe directly without Mr Etchells’ involvement. Mr Etchells explained that he would give Ms Ngwepe an opportunity to address him with her version and thereafter the applicant would be given an opportunity to respond with his version. Mr Etchells explained that the applicant, however:
“jumped up, pointed his finger and said: no lady will search his car because it is not in his culture”

[38] Mr Etchells pointed out that the applicant was extremely agitated and reacted in anger throughout the meeting.
[39] During the course of the morning of 18 February 2015 Mr Etchells received a telephone call from Mr Chiloane, who enquired about the applicant’s conduct. Mr Etchells explained to Mr Chiloane that he (Mr Etchells) was busy completing a report for him (Mr Chiloane). Shortly thereafter Mr Etchells completed the report and sent it to Mr Chiloane. At about 11:00, moments after having sent the report, Mr Chiloane telephoned Mr Etchells and instructed him (Mr Etchells) to immediately take the telephone to the applicant so that he (Mr Chiloane) could speak to him (the applicant).
[40] Mr Etchells went to the applicant, who was at the time lecturing a class. Mr Etchells was accompanied by Mr Ntshalintsahli, the respondent’s Divisional Head of the Engineering Department. Mr Etchells explained that he waited at the class room for the applicant to complete his lesson and then told him (the applicant) that Mr Chiloane wanted to speak to him (the applicant). The applicant responded:
“… I will not speak to him”.

[41] Mr Etchells pointed out that the applicant repeatedly said this. In so doing the applicant spoke in a loud noisy voice in presence of students.
[42] Mr Etchells explained that he issued the instruction to the applicant not to park inside the campus premises because the applicant had told him that he did not want his car to be searched. Mr Etchells conceded that the applicant had his car searched on many occasions but on this particular occasion, on 17 February 2015, the applicant had given him “no explanation why he ignored the instruction”.
[43] In cross examination the applicant put it to Mr Etchell that he (the applicant) had repeatedly wanted to speak to him (Mr Etchells) after he had been given the instruction not to park; but he (Mr Etchells) did not meet with him (the applicant). Mr Etchells responded: “I was not present on 17th”. The applicant explained to Mr Etchells, while he (Mr Etchells) was under cross examination, that had he (Mr Etchells) given him an opportunity to discuss the instruction not to park, he would have explained his plight concerning the risk to his car being stolen and the issue relating to the insurance policy.
[44] The applicant pointed out to Mr Etchells that he was unaware that Mr Chiloane was on the telephone. In the commotion he did not comprehend that Mr Chiloane was on the telephone and wanted to talk to him. Mr Etchells retorted that he had indeed told the applicant that Mr Chiloane was on the line. He challenged the applicant’s version, in this regard, asking: “why then did you say: ‘I don’t want to talk to him?’”. The applicant responded that he was under a lot of stress at the time and could not remember having said: “I don’t want to talk to him”.
[45] Mr Chiloane testified that he is the Chief Accounting Officer (“CAO”) of the respondent. He is also the College Principal. He only got to know the applicant with the advent of the current dispute. On 18 February 2015 Mr Chiloane received a report from Mr Etchells explaining that the applicant had “humiliated” a security guard. Mr Etchells had also reported to Mr Chiloane that he (Mr Etchells) had tried to resolve the issue at campus level but the applicant was aggressive and arrogant.
[46] Mr Chiloane explained that he wanted to talk to the applicant on 18 February 2015; but the applicant refused. Mr Chiloane heard the applicant say to Mr Etchells, while Mr Chiloane was talking to Mr Etchells on the telephone:
“I don’t want to talk to that man”

[47] Mr Chiloane could hear the applicant “shouting at the top of his voice”. Mr Chiloane wanted to deal with the problem amicably but he realized that he:
“was dealing with a dangerous person”

[48] Mr Chiloane contended that the applicant had forfeited his right to park inside the campus premises because he refused to be searched by a female security guard. Mr Chiloane averred that the applicant could have accessed him (Mr Chiloane) through the grievance process if he had any problems. His frustrations were therefore unfounded. The sanction of dismissal was justified because the employment relationship had broken down.
[49] In cross examining Mr Chiloane, the applicant explained that he was not aware that Mr Chiloane was on the telephone listening to what was going on and that he cannot recall having uttered the words: “I don’t want to talk to that man”. This was because he was under tremendous stress at the time.
[50] Mr Fredericks testified that he is responsible for labour relations at the respondent. He was the initiator at the applicant’s disciplinary hearing. On 27 February 2015, when the disciplinary proceedings were convened; the applicant had explained to the chairperson that he (the applicant) was prepared to finalize the matter on that same day. This was despite the respondent having introduced charges three and four to the charge sheet at the hearing and the applicant having not been represented. Nevertheless the chairperson did postpone the hearing to 20 March 2015. When the proceedings resumed on 20 March 2015 the applicant was still unrepresented.
[51] The applicant pleaded guilty to all four charges. The chairperson explained to the applicant that he can submit mitigating circumstances before he pronounces on the sanction. The proceedings were adjourned for about four days for this. Before the proceedings were adjourned the chairperson had asked the applicant whether he wanted to explain anything. The applicant answered “no”.
[52] Mr Fredericks explained that the applicant had submitted a written document to the chairperson on mitigation; after which the chairperson recommended the applicant’s dismissal. Mr Fredericks pointed out that he had not seen anything relating to the appeal process in this matter. Under cross-examination Mr Fredericks argued that the applicant had an opportunity during the appeal process to explain the circumstances of his conduct; but he did not. The chairperson had also asked the applicant for a “plea explanation”; but the applicant did not take that opportunity to explain anything further. Under re-examination Mr Fredericks averred that the disciplinary hearing was not handled like a criminal proceeding in a criminal court. In this regard a plea explanation process was not followed.
[53] The applicant practically repeated what he had said in his opening statement when he testified in-chief. The applicant maintained that he wanted to apologize personally to Ms Ngwepe, in the presence of her supervisor, after he had explained that he was indeed provoked; but he did not get such an opportunity.
Analysis of evidence and arguments
[54] The Constitutional Court explained in CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at [65]:
“... commissioners must … resolve the real dispute between the parties.”

[55] There were in essence four allegations against the applicant, namely that he uttered the two foul words in speaking to Ms Ngwepe on 17 February 2015 (“first allegation”); he refused to allow Ms Ngwepe to search his car on 17 February 2015 (“second allegation”); he refused to talk to Mr Chiloane on 18 February 2015 when he was told that Mr Chiloane wanted to talk to him on the telephone (“third allegation”) and, on 19 February 2015, he refused to comply with the instruction issued to him by Mr Ethells that he not park his car inside the campus premises (“fourth allegation”).
[56] With regards the first allegation the applicant conceded that he used the first and second foul words, which are vulgar words, when he spoke to Ms Ngwepe; but that he was provoked and angry when he uttered those words. He regretted using those words and wanted to apologize to her. He maintained, however, that his conduct did not excuse Ms Ngwepe’s conduct in being rude to him. She was rude to him when she told him that he was wasting her time. The applicant explained that he was indeed delayed in getting out of his car because he was experiencing problems with his central locking system.
[57] As regards the second allegation the applicant explained that he did not refuse to get out of his car and to allow Ms Ngwepe to search it. Due to the delay in getting off out of his car, the altercation between him and Ms Ngwepe ensued. This resulted in Ms Ngwepe leaving the scene. He waited for her but she disappeared. Ms Ngwepe, on the other hand, gave a completely different version. She explained that the applicant pointed his finger at her, uttered the first and second foul words and drove off. Hence, he had refused to allow her to search his car. She then went to her supervisor to complain at the office. This entire ordeal was witnessed by her supervisor.
[58] Concerning the third allegation the applicant explained that he was unaware that Mr Chiloane wanted to speak to him. He was very stressed and angry when Mr Etchells came to his lecture room, while he was teaching a class, and ordered him out. The purpose of Mr Etchells ordering him out of his lecture room was to take him to his (Mr Etchells’) office to hand him the charge sheet, which he did. While he was following Mr Etchells he conversed in a loud voice with Mr Etchells. This was because he was upset with the manner in which Mr Etchells was managing the problem. He was unaware that Mr Etchells was on the telephone with Mr Chiloane at the time. Owing to his state of mind at the time of the incident on 18 February 2015, the applicant could not recall whether he had said that he did not want to speak to Mr Chiloane.
[59] Regarding the fourth allegation the applicant conceded that he did not comply with Mr Etchells’ instruction not to park. He also conceded that he had said, at the meeting with Mr Etchells’ on 18 February 2015, that he does not want to be searched by a woman security guard. He explained that he said so out of anger because Mr Etchells was being obstructive in allowing the applicant the opportunity to resolve the issue directly with Ms Ngwepe and her supervisor. The applicant pointed out that the reason why he did not comply with the instruction was because he wanted an opportunity to explain to Mr Etchells that he does not have a problem being searched by anyone as he had allowed his car to be searched by the security, including women security, during the last two years. He also wanted to point out to Mr Etchells that his car would be at risk if he had to park outside and that he would be in default with his insurance if he parked his car outside. Mr Etchells, however, did not afford him this opportunity.
[60] Despite the applicant having pleaded guilty to the charges at the disciplinary hearing, as well as at the arbitration proceedings, it was clear from his explanation during his opening statement that there were, in the words of the applicant, mitigating circumstances, when the alleged acts of misconduct were committed. The applicant stressed, throughout the arbitration proceedings, that he was remorseful for his conduct. He argued that his pleas of guilty were a strong indicator of this. He also averred that his remorse was evidenced by his intention to apologize to Ms Ngwepe.
[61] Employers are under a duty to give due consideration to circumstances raised in mitigation by employees before deciding on an appropriate sanction. Schedule 8 of the LRA indicates that a dismissal is unfair if it is not affected for a fair reason and in accordance with a fair procedure. The dismissal must be both substantively and procedurally fair.
[62] The respondent is required, in so far as substantive fairness is concerned, to prove that the dismissal was for a fair reason. In this regard the respondent has the onus to prove that the applicant was, on a balance of probabilities, guilty of the misconduct accused of and that dismissal was the appropriate sanction. The respondent would, therefore, fall short of its responsibilities, if it justified the dismissal based solely on the fact that the employee was found guilty of the acts of misconduct. This is contrary to the guidelines of Schedule 8 of the LRA. The respondent was seized, with the additional duty of the gravity of the misconduct, to consider circumstances raised in mitigation by the applicant and in aggravation by the employer. To succeed the respondent has to prove that the seriousness of the offence outweighed the employee’s circumstances in mitigation.
[63] The applicant’s evidence that he had an unblemished 18 year career as an educator was uncontested. Moreover, the applicant’s unblemished two years record with the respondent was also undisputed. He has no record of having perpetrated any misconduct to have his car searched by the security; moreover, to be searched by a woman security officer.
[64] Ms Ngwepe explained in her evidence that the applicant drove off immediately after having uttered the first and second foul words to her. This part of her version is conspicuously absent from her written statement which was drafted 17 February 2015, the same day as the alleged misconduct. In fact she said that the applicant shouted and argued with her and then she went to call her supervisor. Given that the applicant drove off was a clear expression of his intent not to have his car searched, one would expect that she would have mentioned this in her written statement.
[65] What is even more troubling about Ms Ngwepe’s testimony is that she testified that she had gone to call her supervisor. Yet, earlier in her testimony she stated that she was with her supervisor who witnessed the entire ordeal. This is a material contradiction. Ms Ngwepe’s supervisor could have cleared this up, as to whether he was with her and whether the applicant had driven away while Ms Ngwepe was still waiting to search his car; but he was not called to testify. In the light of the above I am compelled to draw a negative inference about Ms Ngwepe’s credibility. Her version is probably not altogether true.
[66] The applicant, on the other hand, was a credible witness. He admitted having uttered the first and second foul words. It is improbable that he would lie about whether he had driven off in the light of his other admissions concerning the altercation. If the applicant was with another security official, her supervisor, as she testified; then it begs the question: why did he not come to the assistance of Ms Ngwepe immediately? After all it is the core function of the security to enforce the search of the applicant’s car. Hence, it is more probable that the applicant did not refuse to have his car searched and that he had difficulties with his central locking system which caused a delay in him getting out of his car. By the time he did get out, Ms Ngwepe had left the scene to complain about the applicant having impaired her dignity. It is highly improbable that her dignity had been impaired, because the applicant had allegedly refused to have his car searched. It is more likely that she left after being sworn at and therefore was not at the scene to see the applicant leave.
[67] Ms Ngwepe contradicted herself when she testified about whether the applicant was indeed delayed in getting out of his car. In response to the applicant that he was delayed in getting out of his car, because he had a problem with his central locking system, Ms Ngwepe responded that she had not seen the applicant being so delayed. However, when asked later by the applicant as to why she had not asked him why he was delayed in getting out of his vehicle, Ms Ngwepe responded that the applicant had told her that he was looking for his car keys. Ms Ngwepe’s version that the applicant was not delayed in getting out of his car is probably not true. The applicant’s version that he was indeed delayed in getting out of his vehicle, because he had had problems with the car’s central locking system is a more probable version.
[68] Ms Ngwepe’s version was that she had not been disrespectful towards the applicant. The applicant averred that she was. She was disrespectful by saying that the applicant was wasting her time. I accept the applicant’s version. This is based on the credibility of his overall testimony. I could not find any fault with his version. It is also consistent with his version that he was delayed in getting out of his car. Ms Ngwepe’s version that she did not react in such a manner is inconsistent with why the applicant got angry. She provided no explanation whatsoever.
[69] The applicant, on the other hand, did; even though his explanation included incriminating averments about reacting with the utterances concerning the first and second foul words. Such reaction by a security officer was indeed disrespectful. The applicant is a senior lecturer at the college with 18 years of experience. He earned the right to be spoken to politely. Ms Ngwepe was unreasonable by reacting to the situation when she retorted to the applicant that he must stop wasting her time. Her utterance was not only disrespectful; it was also unprofessional. The fact that she was not disciplined for her conduct is unfortunate and displayed the inconsistent manner in which Mr Etchells managed the situation.
[70] Mr Etchells’ involvement in the matter the next day was aimed, in his view, to resolve the problem. He called a meeting very early in the morning. The applicant attended the meeting as did Ms Ngwepe and her supervisor. Mr Etchell was confronted by two distraught people: Ms Ngwepe and the applicant. The applicant’s attendance at the meeting was not consistent with a person who did not want to co-operate with Mr Etchells. On the contrary, it is consistent with his version that he wanted to explain to Ms Ngwepe’s supervisor that Ms Ngwepe had been rude to him. Ms Ngwepe was indeed rude to the applicant on 17 February 2015 and the applicant became justifiably angry.
[71] For some reason the meeting went horribly wrong. Instead of the meeting culminating in the conflict being resolved, the applicant angrily walked out; and in the process uttered those unfortunate words to the effect that he would not allow a woman security official to search him. Mr Etchell reacted to this unfortunate outburst by issuing the instruction later not to park inside the premises. In effect the instruction amounted to a sanction. It was a sanction, because he summarily deprived the applicant of the benefit to park inside the campus premises while the rest of his colleagues could.
[72] That sanction was the culmination of the hearing that Mr Etchells had on 18 February 2015. Had Mr Etchells acted in a more level-handed manner; he would have taken into account that the outburst by the applicant should have been balanced against the fact that he was angry, and possibly justifiably so; and he did not have a history of refusing to be searched by women security officials. On the contrary, the applicant has been compliant until the incident of 17 February 2015. Mr Etchell was also not fully aware of what had transpired on 17 February 2015 or even whether the applicant had been guilty of the alleged conduct. All he had was Ms Ngwepe’s version.
[73] It is also important to take note of the fact that Mr Etchells did not make himself available to the applicant to possibly give him an opportunity to make representations as to why he should not impose the instruction. For this reason the imposition of the instruction was unfair. The applicant explained that the instruction was unreasonable. Mr Etchells had not taken the prudent step of allowing a proper process to unfold, for all the facts to be ventilated and the time to properly apply his mind before imposing the instruction. Even with hind sight, and having ventilated the facts in the matter in its totality, the probabilities are that the instruction was unreasonable. By doing so, Mr Etchells had displayed that he was taking sides in the conflict before a fair process was followed.
[74] It is academic to determine now whether the applicant was justified in not complying with the instruction for the reasons that it would have been at risk of being stolen, broken into and/or that he would be in beach of his insurance obligations. That is because the instruction was issued without Mr Etchell having heard these representations. What is important is that the instruction amounted to a sanction without a fair process having been followed; and it was unreasonable given that it was a reaction to the applicant’s angry outburst despite the fact that he had allowed his car to be searched by woman security officials without any problems for the two years that the applicant was employed by the respondent.
[75] Even when the applicant parked his car on 19 February 2015, there was no evidence that he was not searched or that he did not allow his car to be searched. Had that been the case Mr Etchells would have said so when he testified. He did not. This further confirms the probabilities that the applicant’s angry outburst, that he did not want to be searched by women security officials, was exactly that: an outburst in a moment of anger and perhaps frustration.
[76] Moreover, the respondent served on the applicant a notice of intention to suspend him on 18 February 2015. The instruction therefore became academic. The object of the suspension was to manage the work environment pending the outcome of a proper process to ventilate the allegations. This begs the question: why then was it necessary to issue the instruction not to park also inside the premises as well?
[77] Mr Etchells’ report to Mr Chiloane needs to be critically analyzed as it set the premise for Mr Chiloane’s opinion that he was dealing with a dangerous man. Mr Etchells was in no position to objectively state, as he did in the heading to the report: “UNRULY BEHAVIOUR OF MR RADINGWANA (LECTURER) AGAINST THE SECURITY PERSONNEL”. This was a judgement call after only hearing Ms Ngwepe’s version of events. The applicant did not participate in the hearing as he wanted to speak to Ms Ngwepe and her supervisor alone, without Mr Etchells’ involvement.
[78] The content of the report conspicuously leaves out the applicant’s allegation that Ms Ngwepe had been rude to him. Understandably so, because the applicant did not take the opportunity to present his side of the story. However, Mr Etchells’ message on a reading of the report, was that he had been the perpetrator, and had committed the misconduct; while Ms Ngwepe was an innocent victim. This predisposition was natural given that Mr Etchell was in obvious haste to make the report to Mr Chiloane. In my view, Mr Etchells’ opinion that the applicant had anger issues with women was judgmentally biased and generalized; even though it was based on the applicant’s outburst.
[79] As early as 20 February 2015, three days after the incident of 17 February 2015, the applicant expressed, in his response to the notice of intention to suspend him, an apology for having conducted himself in the manner he did with Mr Etchells on 18 October 2015. He goes on to admit that he committed a “serious offence”. This was in reference to utterance of the first and second foul words. He points out that he had been an educator for 18 year, with a clean record; and that this must be taken into account in judging his overall character. The incident on 17 February 2015 should not be seen in isolation. I agree.
[80] A dismissal is often compared to capital punishment in the employment sphere. It is the ultimate sanction in labour proceedings. It is therefore highly relevant to carefully analyze whether the display of character, associated with the misconduct, is indeed the general conduct of the employee. From the evidence before me, the applicant did not display such bad character in his 18 year career as an educator. More particularly, he did not display such character in his two-year employment with the respondent.
[81] The applicant stated in his letter of 30 March 2015 that the imposition of the dismissal did not “allow me to mend my conduct”. The applicant did not try to justify his conduct in any way. He practically fell on his sword. This was also his attitude at the disciplinary hearing. Such conduct, particularly when it comes from an unrepresented employee, like the applicant, demands that a decision maker pensively assess whether it is justified to display some compassion in the light of the overall mitigating circumstances and context of the misconduct. The applicant expressly stated that he was remorseful. This was not just done after he was dismissed. He also displayed this attitude at the disciplinary hearing.
[82] The applicant pointed out in his letter of 30 March 2015 that the appeals committee should consider that he is 55 years old. He has an extended family, whom he supports financially; and given his standing as an educator of 18 years, he has been disgraced by his dismissal. An educator who, on the evidence, has given the best years of his life to uplift the youth of our country, certainly has earned the respect of our institutions to consider whether his dismissal is warranted by a once off incident of misconduct, against a life time contribution to education.
[83] It must be noted that the applicant admitted to uttering the first and second foul words to Ms Ngwepe. He made this admission unconditionally at the disciplinary hearing. He also admitted, in his ELRC Form E1, that he swore at Ms Ngwepe on 17 February 2015. I accept that the uttering of the second foul word is extremely offensive to everyone generally; but more particularly to women. It degrades women by being vulgar. The vulgarity makes reference to a women’s genitals and is a repulsive swear word. The applicant overstepped the acceptable conduct of a reasonable person in his position at the time when he uttered the second foul word. His justification that he reacted to Ms Ngwepe’s disrespectful reaction and provocation is not accepted. Ms Ngwepe’s conduct was wrong, but it did not justify the utterance of the second foul word.
[84] The Labour Appeal Court pointed out in De Beers Consolidated Mines Ltd v CCMA and Others (2000) ILJ 1051 (LAC) (“the De Beers case”) that:
“Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”

[85] One must not lose sight of the fact that the applicant’s utterance of the second foul word was offensive and uncalled for in the circumstances that prevailed on 17 February 2015. However, by not giving due regard to the applicant’s display of remorse, by his early admissions of the allegations against him in his letter in response to the notice of intention to suspend him, his pleas of guilt at the disciplinary hearing and subsequent appeal and the admissions made at the arbitration proceedings from its very inception; then one is in effect falling into the trap cautioned by the De Beers case.
[86] The utterance of the offensive word was to a female security official and was therefore morally outrageous and called for vengeance. However, his dismissal is governed by a completely separate set of norms, namely, whether it was a “sensible operational response to risk management in the particular enterprise”. The probabilities are that it was not for the reasons outlined about. The applicant’s remorse and the improbability that he would repeat the misconduct, are two compelling reasons that warrant against his dismissal as being fair in this regard.
[87] I do not hold the same view concerning the utterance of the first foul word. Given that Ms Ngwepe was indeed disrespectful, as the applicant had averred, then the utterance of the second foul word may very well have been a reasonable burst of anger toward her. It is in our human nature to get angry under certain circumstances. The alleged circumstances that led to the applicant’s anger on 17 February 2015 was as a consequence of Ms Ngwepe reacting disrespectfully to him. Her disrespectfulness was unjustified as the applicant’s delay in alighting his car was not his fault. It was caused by a problem he had with his central locking system. There is no vulgarity associated with the second foul word. The applicant’s utterance of the second foul word was a reaction of frustration and anger to Ms Ngwepe’s disrespectful conduct towards him.
[88] The applicant averred in his written arguments, which was submitted at the commencement of the arbitration proceedings, that he did not refuse to report to Mr Chiloane’s office. It is necessary to critically examine the applicant’s defense to the fourth allegation. This is indeed a serious misconduct. The allegation refers to two instructions: the applicant refusing to report to Mr Chiloane’s office and the applicant’s refusal to speak to Mr Choliane when he was on the telephone. Mr Chiloane is the college Principal. The instructions should have been strictly complied with. Not to do so would certainly amount to gross insubordination and may very well cause a serious damage to the employment relationship.
[89] Mr Chiloane testified that he could hear over the telephone that the applicant was angry and talking very loudly. He also heard the applicant say “I don’t want to talk to that man”. Mr Chiloane stressed that the use of the words “that man” by the applicant was a display of gross insubordination towards him (Mr Chiloane). Mr Etchells testimony was somewhat different. He testified that the applicant had said: “I don’t want to talk to him”. Mr Etchell stressed that these were the applicant’s exact words and he had said so several times during the incident on 18 February 2015.
[90] The applicant testified that he had been in an extremely stressful state and could not recall his exact words. He did not dispute having uttered words of that nature; but he explained that he was not aware that Mr Chiloane was on the telephone and did not intend to be insubordinate. The applicant suggests, in his opening statement and written arguments, that Mr Etchells unreasonably came to his lecture room to demand his exit from the class while he was teaching. This angered him. Hence, his high-pitched tone when he spoke.
[91] It is probable that the applicant did utter the phases “I don’t want to talk to that man” or “I don’t want to talk to him”, or words similar to those; but it is improbable that he knew that Mr Chiloane was on the telephone at the time. It is improbable that Mr Chiloane and Mr Etchells are being untruthful about the utterances. It is likely that they have imperfectly recalled the exact utterances. I am therefore unable to make a finding of what exactly the utterances were.
[92] However, one of the reasons to have summoned the applicant from his lecture room was to serve the charge sheets and notice to attend a disciplinary hearing on him. The applicant, though clearly upset about being summoned to leave his lecture room, did submissively follow Mr Etchells to his (Mr Etchells’) office and accepted the notice. This conduct is inconsistent with an applicant who intended to be grossly insubordinate to his Principal. It is highly probable that the applicant did not know that Mr Chiloane was on the telephone when he was walking to Mr Etchells’ office. Mr Chiloane’s testimony must be considered with caution as he was not at the scene. He was listening to the conversation by telephone. At the scene the mobile telephone set was held by Mr Etchells. There was a great deal of commotion at the scene.
[93] Mr Etchells did not advance any explanation as to why it was necessary to summon the applicant out of his lecture room. No compelling reason was advanced as to why Mr Etchells and/or Mr Chiloane could not have waited for a more opportune time to summon the applicant. This is critical as the applicant’s argument is that Mr Etchells had acted unreasonably by summoning him out of his lecture room. He could have waited for a break or at some other time when he was not lecturing students. There is merit in the applicant’s argument. Given the conspicuous silence by Mr Etchells on this point I am compelled to conclude that Mr Etchells’ conduct in summoning the applicant out of his lecture room was unreasonable and uncalled for. The applicant was justifiably angry with Mr Etchells because of this.
[94] Mr Chiloane testified that he had no interaction with the applicant other than when the current dispute started. Even on the current dispute, his only interaction with the applicant was when he had listened to the commotion that took place on 18 February 2015. This interaction with the applicant was extremely limited to make the judgement that the applicant is a dangerous person and therefore the employment relationship was irretrievably damaged.
[95] There was no evidence that the applicant had refused to report to Mr Chiloane’s office. A disciplinary process was unfolding extremely swiftly. The incident of 17 February 2015 was followed in rapid succession with the meeting with Mr Etchell on 18 February 2015, the issue of the instruction not to park, the incident of summoning the applicant out of his lecture room and the issuing of the charge sheet and notice to attend the disciplinary hearing. In the commotion of all these events, which took place between the afternoon of 17 February 2015 and the morning of 18 February 2015; if Mr Chiloane had indeed summoned the applicant to his office, it was also lost in the commotion.
[96] There was no evidence that the instruction was properly communicated to the applicant or that he refused to comply. Mr Etchells testified was that he had told the applicant that Mr Chiloane wanted to talk to him. The instruction that Mr Chiloane wanted to see him at his office was not communicated at that point. Nor is there any evidence that it was communicate to the applicant at any other point in time.
[97] In the Labour Court case of Stander v Education Labour Relations Council & others [2011] 4 BLLR 411 (LC), a teacher was dismissed after slapping a 17 year old learner. The teacher claimed that he was severely provoked by the learner and could barely remember what had happened at the time of the incident. Molahlehi J, in his evaluation, stated that the Commissioner’s approach had failed to take cognizance of the fact that, in addition to determining the commission of the offence, a further enquiry that needed to be conducted was whether the dismissal was in the circumstances of this case fair or otherwise.
[98] The Court was of the view that, amongst other things, the Commissioner should have also taken into account that the applicant did not deny the commission of the offence; the applicant had accepted that what he had done was wrong and the offence was as a result of provocative behaviour on the part of the learner. In relation to whether the applicant’s employment was a continued risk to the school because of his misconduct, Molahlehi J explained:
“The objective facts are that the chances of a repeat by the applicant are remote. The applicant is a person who has dedicated his life to teaching for a period in excess of 30 years. There is no evidence that he had in that period committed a similar offence.”

[99] Molahlehi J set aside the award and the matter was to remitted back to the bargaining council for determination by a different Commissioner.
[100] For the charge of insubordination to succeed, the refusal to obey the instruction must be intentional. There must be some intention on the part of the employee to defy the authority of the employer. Provocation may serve as a ground of justification for the act of insubordination. The applicant contended that the manner in which Mr Etchells’ handled the aftermath of the incident on 17 February 2015 may have led to the third and fourth allegations coming about as unintended consequences.
[101] On the evidence before me, there is certainly an element of unreasonableness on the part of Mr Etchells in pursuing the applicant so vigorously as he did after his meeting in the morning of 18 February 2015. In NUMSA obo Yako v Maxiprest Tyres (Pty) Ltd (2006) 15 MIBC 8.13.2, the dismissal of an employee, who was dismissed for insubordination, swearing and “racial harassment”, was upheld. It was held that the employee showed no remorse and that the employment relationship had been destroyed. In my view the presence of remorse can serve as a mitigating factor. This strong mitigating factor is present in the case before me.
[102] An instruction can be lawful but be unreasonable. For an instruction to be reasonable, it must be capable of being performed and fall within the parameters of the job. It must be noted that, in the current matter, the instruction not to park, did not fall within the parameters of the applicant’s job as a lecturer. It was more closely related to managing the incident of 17 February 2015, followed by the applicant’s utterance at 07:30 on 18 February 2015. The verdict on the matter was still pending a disciplinary enquiry. It therefore amounted to an unfair sanction depriving the applicant of the benefit to park inside the campus premises.
[103] In Lindani Mjezu v Kusasa Flexoprint (Pty) Ltd /Link Plastics (2006) 15 CCMA 8.18.3 an employee was given an unreasonable instruction. He was notified 15 minutes before the end of his day shift that he has to work overtime. When he refused to do so, he was dismissed for alleged gross insubordination. The commissioner found the dismissal to have been substantively unfair. It was also held that the amount of notice to work overtime given to the employee was unreasonable.
[104] This case bears relevance to the current matter given that the applicant was issued with the notice on 18 February 2015 to comply with an instruction to take effect on 19 February 2015. The purpose of the instruction was to manage the applicant’s alleged refusal to be searched by the campus security; yet no special interventions were taken for the applicant’s access to and out of the campus premises on 18 February 2015. Even on 19 February 2015, there were no such special interventions made to ensure that the applicant does not park his car inside the campus premises. The instruction was unreasonable and was evidently not, in practice at least, directed to manage the alleged risk of the applicant refusing to have his car searched.
[105] Having considered the evidence before me as a whole I make the following concluding findings: the dismissal of the applicant by the respondent was substantively unfair and the respondent has discharged its onus to prove that the dismissal was procedurally fair. In these circumstances, and given that the applicant has been sufficiently sanctioned for his misconduct, by the fact that he was been out of the respondent’s employ since his dismissal in April 2015, it is fair and just that the applicant be reinstated with effect from 1 November 2015. Since the applicant was in fact guilty of misconduct such reinstatement is not to operate retrospectively, but from 1 November 2015.
AWARD
[106] The dismissal of the applicant, Mr M Radingwana, by the respondent, the Tshwane South TVET College, was procedurally fair.
[107] The dismissal of the applicant by the respondent was substantively unfair.
[108] The applicant is reinstated with effect from 1 November 2015.
[109] The applicant must present himself for duty at the office of the respondent’s Chief Accounting Officer at 07:30 on Monday, 2 November 2015.


Commissioner M Naidoo