ELRC547-20/21GP

Case Number: ELRC547-20/21GP
Commissioner: Leanne Alexander
Date of Award: 01 December 2021

In the ARBITRATION between:
JOHN MAFIKA MTHIMUNYE
(Applicant)
And
Department of Higher Education & Training (Tshwane North TVET College)
(Respondent)
Applicant’s representative:
Applicant’s address:


Telephone:
Telefax:
Email:
Respondent’s representative:
Respondent’s address:


Telephone:
Telefax:
Email:


Details of hearing and representation
1. The arbitration took place at the offices of the Respondent’s premises at Corner Pretorius & Kgosi Mampuro Street Pretoria Central (Tshwane) on 20 August 2021, 22 September 2021, 29 September 2021 and 12 November 2021.
2. Tshepo Masemela, a Union Official, represented the Applicant. The Applicant, Mr J M Mthimunye, was also present.
3. Ms Reginah Mogadi Habedi, an Employee Relations Manager, appeared for the Respondent.
4. The proceedings were conducted in English.
5. The Applicant referred an unfair dismissal dispute in terms of Section 191 (5)(a)(i) of the Labour Relations Act, Act 66 of 1995 (“LRA”) on 21 December 2020.
6. The matter was thereafter, set down for Arbitration on 20 August 2021, 22 September 2021, 29 September 2021 and 12 November 2021.
7. In terms of Section 138(7) of the “LRA” “within 14 days of the conclusion of the arbitration proceedings (a) the commissioner must issue an arbitration award with brief reasons”.
8. The matter followed an adversarial approach.
9. The hearing was digitally recorded, and manual notes were also taken.

The issues to be decided
27. I am to determine if the Applicant’s dismissal was procedurally and substantively fair. If I find that the Applicant’s dismissal was unfair, I am further required to determine the appropriate relief.
28. The substantive issues in dispute, were the reason(s) for the dismissal.
29. The procedural issues in dispute, were the timing in relation to the alleged offence(s) and when the actual disciplinary hearing occurred. The Applicant was not permitted to call any witness(s) during the disciplinary hearing proceedings, the outcome of the disciplinary hearing as per the timeframes were not in compliance in terms of the procedure and the consistent application of the rule.
30. The Applicant was charged with the following charges:
Charge 1 – “It is alleged that you committed an act of misconduct i.e., ‘Dereliction of duties’ in that during 2018, semester 1 at Soshanguve South Campus, you allocated marks to N5 public administration students without marking their scripts as required by the Internal Continuous Assessment (ICASS”) guidelines”.
Charge 2 – “It is alleged that you committed an act of misconduct i.e. ‘Gross negligence’ in that during 2018, semester 1 at Soshanguve South Campus, you failed to comply with the provisions of ICASS guidelines when marking and allocating marks to students”.
Charge 3 – “It is alleged that you committed an act of misconduct as contemplated in annexure A of Resolution 1 of 2003 which read as follows ’prejudices the administration, discipline or efficiency of the department, office or institution of the State’ in that during 2018, semester 1 at Soshanguve South Campus, you allocated marks to N5 public administration students without marking their scripts”.
31. The Applicant was found guilty on all of the above charge(s).

The background to the dispute
32. It was common cause that the Applicant was employed as a Lecturer since 1 January 2008 and was earning a monthly salary of R26, 425-50.
33. The Applicant worked a 5-day week, at an average of 8 hours per day.
34. The Applicant stated that he was dismissed on 1 December 2020.
35. The Respondent submitted documents that were marked “R1 & R2” and paginated accordingly.
36. The Applicant submitted documents that were marked “A” and paginated accordingly.
37. The Applicant sought retrospective reinstatement.

Summary of evidence and argument
The testimony led by the witnesses is fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.

Respondent’ case
Mr Siphiwe Nkabinde
38. The witness testified under oath that he was the Campus Manager (Soshanguve Campus South).
39. The essence of the witness testimony inter alia was that he was responsible to manage the entire campus whilst providing leadership and support. Furthermore, to ensure that all assessments were moderated and approved.
40. He submitted documentary evidence of the “charges” that were levelled against the Applicant where it was submitted that Charge 1 – “It is alleged that you committed an act of misconduct i.e., ‘Dereliction of duties’ in that during 2018, semester 1 at Soshanguve South Campus, you allocated marks to N5 public administration students without marking their scripts as required by the Internal Continuous Assessment (ICASS”) guidelines”. Charge 2 – “It is alleged that you committed an act of misconduct i.e. ‘Gross negligence’ in that during 2018, semester 1 at Soshanguve South Campus, you failed to comply with the provisions of ICASS guidelines when marking and allocating marks to students”. Charge 3 – “It is alleged that you committed an act of misconduct as contemplated in annexure A of Resolution 1 of 2003 which read as follows ’prejudices the administration, discipline or efficiency of the department, office or institution of the State’ in that during 2018, semester 1 at Soshanguve South Campus, you allocated marks to N5 public administration students without marking their scripts”.
41. He said that the Applicant reported to the Senior Lecturer, Mr Sekati, who then reported to the Head of Department, Mr Mekoe. Mr Mekoe reported to the Campus Manager, Mr Nkabinde.
42. He said that the duties of a Lecturer included mark allocations, teaching of subject(s), setting of assessments (subject specialists), moderations, preparing assessment(s) with clear mark allocations (“Blooms” standardization question paper), preparation of marking guidelines in addition to the “Rubric” criteria and allocations.
43. He said that the ICASS guidelines was used as a modus operandi. This ultimately attached semester weightings as follows, task 1 (30%), task 2 (20%), assignment and task 3 (exam – 50%) and in order to qualify for the examination, a student must obtain 40%.
44. He submitted documentary evidence of the “ICASS guidelines” where it was submitted that “…the Department of Higher Education and Training (“DHET”) deemed it necessary to develop guidelines for the conduct of internal assessment for N1 to N6 programs. The purpose of these guidelines was to set consistent standards for the setting and moderation of assessment tasks (pre-assessment quality assurance), conducting and marking of assessment tasks (post-assessment quality assurance) and moderation and verification (post-assessment quality assurance)”.
45. He submitted documentary evidence of the “ICASS guidelines” where it was submitted that “internal assessment consists of tasks (tests, assignments and internal examinations) which lead to the compilation of the semester and trimester marks. As per memo 46 of 2015 (Administration requirements for National Examinations), candidate must obtain a minimum of 40% in the ICASS to get admission to the exam…”.
46. He said that the acting Manager, Mr Mekoe, requested the subject files and the Portfolio of Evidence (“POE’s”) from the Head of Department’s (“HOD’s”) were not forthcoming. The Senior Lecturers, Mr Skati, Ms Mareni and Mr Vilikazi, had not submitted, and it was a requirement as they were preparing for the pending results.
47. He said that to his surprise, marks had been allocated yet the scripts were not marked, and some scripts had been marked and the student(s) were given a percentage allocation.
48. He said that he submitted a report as some scripts had no assessment guidelines, no rubric and no mark allocation(s) had been utilized.
49. He said that the ticks on the scripts did not correspond to the marks allocated and the Applicant had deviated from the ICASS Guidelines.
50. He said that the Applicant was required to submit Portfolio of Evidence (“POE’s”), scripts (including the raw mark sheets, tasks and guidelines) and the subject files.
51. He said that the Applicant submitted scripts (POE’s), that were partly submitted with the question papers/assignments and only the scripts had not been moderated.
52. He submitted documentary evidence of a “cover page” where it was submitted that it was not the standard cover page where it was submitted that a mark of “70%” had been allocated, yet the pages in the script had not all been marked.
53. He said that he did not understand how the Applicant arrived at a “70%” mark allocation with 6 (six) ticks allocated on the script as he had not submitted a rubric, where it would have indicated the criteria used and the assessment scale.
54. He submitted documentary evidence of a “script” where it was submitted that the student had not signed the document and it had not been moderated, yet the student obtained a mark of “63%”.
55. He said that he did not understand how the Applicant arrived at a “63%” mark allocation with 5 (five) ticks allocated on the script as he had not submitted a rubric, where it would have indicated the criteria used and the assessment scale.
56. He submitted documentary evidence of a “Public Administration N5 – Assignment 1”. He said that this document had not been attached to the answer sheet.
57. He submitted documentary evidence of a “Marking Rubric”. He said that the document had not been submitted to him and furthermore the Respondent had not made use of such a rubric tool.
58. He said that the Applicant’s “Marking Rubric” did not speak to one another, there was no clear correlation and that the document had been fabricated.
59. He submitted documentary evidence of a “Rubric for the assessment of a practical task (Business studies)” where he said that the document should be attached to every script as it was evidence based.
60. He submitted documentary evidence of a “script” with a mark allocation of “50%” with 15 (fifteen) ticks allocated on the script and the Applicant had not submitted a rubric, where it would have indicated the criteria used and the assessment scale.
61. He said that the Applicant was negligent in his duties by not allocating the marks correctly which affected the students, as the ICASS Guidelines were not adhered too.
62. He submitted documentary evidence of the “ICASS Guidelines” where it was submitted that “the lecturer’s subject file contains all teaching and learning resources for a specified subject…” where it must contain “lecturer’s information, contents page, class registers, subject syllabus, subject work schedule/work plan/pace setter, lesson plans and teaching resources, evidence of additional supporting tasks, evidence of review, previous question papers/revision exercises/additional exercises/homework activities/worksheets/tutorials and minutes of subject meetings”.
63. He submitted documentary evidence of the “ICASS Guidelines” where it was submitted that “students’ assessment evidence should be kept in arch-lever files, flat or hanging files or box files and should be available for moderation, monitoring and verification purposes, for the duration that the ICASS marks are valid and also for a reasonable period as indicated in the introduction after the examination results have been released to allow for instances where the ICASS marks are questioned and need to be verified”. Such that the “evidence refers to all marked tests, assignments and internal examination papers (including the 10% moderated sample marked in green), accompanied by the electronic system print-outs of marks submitted to the DHET”.
64. He said that he was permitted to request information from the Applicant, as he was not getting any joy from the HOD’s.
65. He said that the Applicant’s conduct affected the reputation of the entire college as the student(s) were deprived of opportunities as some students were currently not employed. Furthermore, the Applicant’s conduct falsified information regarding the students.
66. He submitted documentary evidence of the “ICASS Guidelines” where it was submitted that “academic line managers must monitor the implementation of the assessment component by perusing the following documentation”…being “student subject assessment schedules, ICASS mark record sheets, student assessment evidence, the correlation between the marks on the scripts and those captured on the electronic system and the correlation between marks on the college system and those submitted to the DHET”.
67. He said that 3 (three) assignments would enable a student to sit for the examination (40% weighting) therefore they all contributed to the year mark.
68. He submitted documentary evidence of the “ICASS Guidelines – recording ICASS marks” where it was submitted that “when recording performance in assessment tasks, the marks achieved in each task must be converted to reflect the weighting for the subject. Marks should be rounded off to avoid the use of decimals. The converted mark must be indicated on the marked test/assignment/examination answer sheet as well as on the record sheet…”.
69. He said that other employees that had also not marked scripts had been charged and were dismissed or resigned. Mr Vilikazi, also did not mark her scripts and was dismissed. Mr Mokopigosi, Mr Mdule and Mr Tjebane resigned.
70. He said that the non-marking of the scripts had a huge impact as there were strikes, “go-slows”, petitions and letters that were sent to the Department amongst others. As such he was placed at the Central Office as the environment became volatile, as he had reported the persons in question.
71. He said that it was his duty to report the individuals concerned because if he had not done so, he would have been dismissed.
72. He said that it was the Applicant’s duty to ensure that everything that he submitted was completed in full and he had no intention to sabotage or destroy person(s).
73. He submitted documentary evidence of the “class list results” where it was submitted that “task 1, 2 & 3” contributed to the “year mark”.
Under cross-examination (only concessions or significant versions put are recorded)
74. Nkabinde explained that the Applicant had not confronted him or attacked him regarding the fact that he had reported him.
75. It was put to the witness that the Applicant had not attended the morning briefing sessions and as such, he was not aware of the scripts had been requested.
76. The witness disputed this statement and said that it was the responsibility of the Line Manager’s/HOD’s to cascade the information down.
77. It was put to the witness that when he had requested the information to be delivered to his office, his secretary had informed him to put the documents on the floor as such there was no record of the documents that had been received.
78. It was put to the witness that his aversion that the “ICASS Guidelines” was a “Bible”, when in fact it was a guideline and not a standard.
79. Nkabinde explained that the ICASS report 191 covered all subjects which were the standards together with the subjects and “Blooms” was how the questions would be set.
80. Nkabinde explained that it was difficult to understand the Applicant’s rationale in how he determined the mark allocations as there was no guideline nor any rubric, as such the content itself would not have assisted.
81. Nkabinde explained that the Applicant’s ticks made no logical sense and that his submission of the rubric was fabricated. Furthermore, he had never seen the rubric previously and the student(s) had the right to provide feedback. Furthermore, the rubric had to comply with the ICASS Guidelines as a scope of achievement in order to assess the students(s).
82. It was put to the witness when he realized that he was missing information he was driven by vengeance. The witness disputed this statement.
83. Nkabinde explained that there was a template guideline for the rubric.
84. It was put to the witness that the Applicant had to report to his office in order for him to be released for marking.
85. It was put to the witness that the Applicant had left the documents on the floor when he requested the information, and it was possible that the documents were still on the floor in relation to the scripts that was submitted.
86. The witness conceded to this statement and said that it would be possible, but he could not clearly recall.
87. Re-examination
88. In re-examination the witness explained that he had not afforded the opportunity for the Applicant to provide any feedback in terms of the rubric.

Mr Selaelo Sebetlene
89. The witness testified under oath that he was the Deputy Principal (Academics).
90. The essence of the witness testimony inter alia was that his duties included the delivery of the “program qualification”; occupational and skills programs, effective curriculum strategy, ensuring that assessments and examinations were in line with the policies and to furthermore ensure that students obtain their results and subsequent qualifications.
91. He said that all of the assessments were guided by the syllabus and the “ICASS Guidelines”.
92. He submitted documentary evidence of the “TVET Curriculum Instruction” which guided all assessment practices, where it was submitted that “TVET colleges are expected to develop a policy for internal assessments to cover all aspects in the complete assessment process, compile trimester and semester assessment plans, design and moderate suitable assessment tasks and tools…”.
93. He said that the ICASS Guidelines was like a “Bible” and as a Lecturer you would give students 2 (two) tests, an assignment and an examination which cannot be deviated from as it was an instruction.
94. He said that students were required to achieve a minimum of 40% or more in order to sit for the examination and Lecturers were expected to set and mark tasks that would be moderated, conduct “pre-assessments” and to submit marked assessments for moderation purposes. Furthermore, Lecturers were expected to submit their marks to the Senior Lecturers’ who were expected to capture and to ensure that the marks corresponded and to submit subject and assessment files.
95. He said that the marks were verified by the Lecturer who then submitted to the HOD and Lecturers were expected to verify the marks, as such there were many role players in the process including the Quality Control and the Campus Manager.
96. He said that there was nothing untoward for any Academic Line Manager requesting files to be submitted for verification and monitoring. Marks were submitted to the Department and the declaration from the Principal who would declare that the marks were authentic and that the due process was followed.
97. He said that he also completed a “declaration” to ensure that he had comfort in the process, and he would randomly select files prior to submitting his “declaration” to ensure that the tasks were compiled with. Furthermore, to ensure that the Lecturer marked accordingly whilst checking pre and post moderation.
98. He said that the Applicant neglected his duties as he did not comply with the ICASS Guidelines, as such Lecturers were expected to carry out their duties for which they were appointed for. If they were not assessing correctly, it was seen as serious misconduct.
99. He said that if a Lecturer was not assessing correctly, it compromised the Respondent’s rules and regulations as the Department could withdraw the Respondent. Furthermore, it was an obligation to the country in terms of the curriculum delivery and any deviation would bring the Respondent into disrepute. Furthermore, the Respondent could have lost its status as an examination and assessment centre.
Under cross-examination (only concessions or significant versions put are recorded)
100. Sebetlene explained that he never requested the information from the Applicant per se, however based on what the Applicant submitted one can make an inference and furthermore there were 347 (three hundred and forty-seven) Lecturers’, and he could not possibly request the information personally from each person.
101. Sebetlene explained that the Applicant originally worked at Soshanguve South Campus where Mr Nkabendi was based and currently there were investigation underway regarding Mr Nkabendi.
102. Sebetlene explained that the ICASS Guidelines were like a “Bible” and a “Bible” could not be a guideline as it was an instruction.
103. It was put to the witness that the ICASS was a guideline.
104. It was put to the witness that the Applicant had never been trained on the ICASS Guidelines and the document opened room for discretion. The witness conceded to this statement.
105. It was put to the witness that the Applicant complied to the request via a third party to submit the documents and the information may not have been as accurate if it had been provided by the original party. The witness conceded to this statement.
106. Sebetlene explained that the ICASS Guidelines was a generic guideline in accordance with the syllabus and it must be adapted for every subject as long as it was within the guidelines.
107. Sebetlene explained that the marks that the Applicant had given must indicate how the marks were allocated.
108. Sebetlene explained that the Rubric provided “descriptors” which explained the name, the evaluation in order to determine whether it had corresponded or not.
109. It was put to the witness that the Applicant had a rubric marking sheet on the side that he submitted and that was how he was able to allocate marks, as the ICASS Guidelines were not cast in stone, and it could be adapted.
110. The witness disputed this statement and said that the rubric cube should have been attached and one could not simply put ticks as it must be indicated on the rubric cube.
111. The witness disputed this statement and said that the nature of the task was dependent on the nature of the questions.
112. It was put to the witness that Mr ND Ralapashwe, Ms O Mathabetle and Mr Molekele, were also found not to have marked scripts, yet they were still in employment.
113. The witness contested this statement and said that their disciplinary hearings may still be in the pipeline and Mr Ralapashwe had been cleared of the allegations that had been levelled against him.
Re-examination
114. During re-examination the witness explained that the rubric cube was used to determine how the question marks would be allocated and the rubric cube goes with the student as it was important to link what was written in the answer book in relation to the rubric cube.
Mr Pheeha Matjika
115. The witness testified under oath that he was an Assistant Director (Gauteng Provincial) & a Director (Labour Relations).
116. The essence of the witness testimony inter alia was that he was requested to investigate the alleged allegation(s) levelled against the Applicant regarding the allocation of marks to students without having marked their scripts.
117. He said that he requested any information to counter the investigation, however no evidence was forthcoming from the Applicant that indicated that he had marked the scripts.
118. He said that the disciplinary hearing occurred late during 2019 and the bundle had not been exchanged, as such the matter was postponed to early 2020 and the Applicant was represented by his Union Official, Mr Mpho Mxiza. Furthermore, the only evidence that the Applicant relied upon was the Respondent’s bundle.
119. He said that at no stage was the Applicant not allowed to bring in any witness(s) and as such the Applicant’s version was untrue. Furthermore, the Applicant’s Union, NEHAWU, was well acquainted with the processes in relation to who they can bring forward.
120. He said that he could not recall at any stage during the disciplinary hearing proceedings where the Applicant wanted to apply for the introduction of new evidence.
121. He said that the ICASS Guidelines was a mandatory document and was used to assess a student’s competency, as such the Applicant acknowledged during the proceedings that he was aware of the guidelines since 2008.
122. He said that the Applicant was not prejudiced during the disciplinary hearing proceedings as the bundles had not been exchanged previously, however the hearing did not continue until the bundles had been exchanged.
123. He said that it may be true that the Applicant only received the disciplinary hearing outcome some 131 (one hundred and thirty-one) days later as the disciplinary hearing occurred during early 2020. This was followed by the lock-down period, as such cases were suspended and some employees were working from home, however the chairperson’s report should have been submitted timeously.
124. He submitted documentary evidence of an email of the “findings” that had been sent to Mr Thami Mngadi and Mr Phillip Matjika.
125. He said that the chairperson’s report had not been signed, and it was possibly due to him working remotely and not having the resources to sign and scan the document.
126. He said that he had investigated other persons in this matter and another lady had resigned after he had met with her.
127. He said that he was an impartial person as he did not work for the Respondent as such his conduct was above board. Furthermore, he afforded the affected employees an opportunity to rebut the allegations before making his findings during the investigation.
128. He submitted documentary evidence of a “marking rubric” where he said that the document was a mere after thought and it would have been submitted previously as it would have had gravity to counter the allegations levelled against the Applicant.
129. He said that the risk(s) associated with the Applicant not marking the scripts may have disadvantaged incompetent students who appear to be competent and if it had been reported to the Department, the Respondent would have suffered consequences.
130. He submitted documentary evidence of an “assignment” script where he said that it was never justified how the Applicant got to the “35%” mark allocation as the Applicant did not do what was expected of him. Furthermore, the ICASS Guidelines provided how marks should be allocated.
131. He submitted documentary evidence of an “assignment” with a mark allocation of “50%” where he said that the ticks indicated on the script did not correlate to the percentage given to the student.
Under cross-examination (only concessions or significant versions put are recorded)
132. Matjika explained that when he met with the Applicant, he made it very clear regarding the allegations that had been levelled against him and enquired if he had anything to rebut the allegations.
133. It was put to the witness that when he met with the Applicant he did not produce a document in order to allow the Applicant to respond thereto.
134. The witness contested this statement and said that he did not recall if he had a document with him, however the Applicant had an opportunity to rebut the allegations.
135. Matjika explained that the ICASS Guidelines talked to how the marks were to be allocated and the ticks in the scripts represented was contrary to the guidelines. Furthermore, that the tick did not indicate a weight to the percentage given, as such the percentage that was given cannot be justified.
136. It was put to the witness that he had investigated 3 (three) employees, Mr Maklokhe, Ms Rapitsela and Mr Mautamabhe, and they were all still in employment.
137. The witness contested this statement and said that he may have investigated 3 (three) applicants, but he could not recall their names and he recalled 2 (two) of the persons he investigated had subsequently resigned and he did not know who Mr Maklokhe was.
138. Matjika explained that the email that the Chairperson had sent with the disciplinary outcome report did not indicate a date and it would be possible that it was submitted late.
139. It was put to the Applicant that in accordance with Resolution 1 of 2003, it allows for 5 (five) days to submit the outcome report.
140. It was put to the witness that the Applicant was not afforded the opportunity during the disciplinary hearing to state his case as he could not call the other implicated employees.
141. The witness contested this statement and said that no party could dictate as to who you could bring as a witness and since he had been employed there was no such procedure where it prohibited you from bringing any witness(s).
142. Matjika explained that the Applicant had indicated during his investigation that he was aware of the ICASS Guidelines and that a person could not use their discretion when implementing such. Furthermore, if the Applicant had not been trained from 2008 until 2018 how was he executing his work functions during this time period, therefore his version cannot be true.
143. It was put to the witness that the Applicant executed his work as per the guidelines.
144. The witness contested this statement and said that it was unfortunate that the Applicant was unable to justify how he got the percentage(s) awarded to the students. Furthermore, he was afforded the opportunity at the disciplinary hearing where he could have defended himself and he provided no justification as to how he arrived at the students’ marks.

Applicant’s case
Mr Johnny Mafika Mthimunye
145. The Applicant testified under oath that he was a Union Official.
146. The essence of the Applicant’s testimony inter alia was that he worked across a variety of tasks at the campus, and he left Soshunguve campus during 2015. Thereafter he reported to the Central Office.
147. He said that the Campus Manager, Mr Nkabinde, arrived during 2018 and since his arrival a lot had changed on campus.
148. He said that during June 2018 he was requested to submit scripts, thereafter during September 2019 he received a letter that indicated that he had not marked scripts.
149. He said that on 11 September 2019, he met with the Investigator, Mr Matjika, and he informed him that it was alleged that he did not mark the assignments and he requested documentation. However, this was not forthcoming as the Investigator, Mr Matjika, had indicated that he did not have any documentation.
150. He said that if he had the documentation before him, he could have provided an explanation.
151. He said that there were approximately 5 (five) persons that had been investigated and that Mr Mdludli and Mr Mophokisi, did not mark their scripts but were afforded an opportunity to explain and both were subsequently dismissed.
152. He said that he submitted the scripts during June 2018 and was only made aware of the allegations during September 2019 some 15 (fifteen) months later.
153. He said that the other employees Mr Matabethe and Mr Ralepase were still employed, Mr Gibane resigned, and nothing happened to Mr Makekela.
154. He said that he submitted the scripts as requested which included the rubric, assignment, research document, test (question paper and answer sheet) and internal examination.
155. He said he placed the documents in an A3 envelope and submitted it to the office of the Campus Manager, Mr Nkabinde, when he was instructed to place them on the floor and he did not sign nor did they have a check-list to confirm what he had submitted.
156. He said that he had subsequently requested the Campus Manager, Mr Nkabinde, to sign his release letter for national marking and Mr Nkabinde had enquired whether he had submitted his scripts and his secretary had confirmed that he had duly submitted.
157. He said that a release letter had meant that you were compliant, and all was in order.
158. He said that the ICASS Guidelines was a guide to use, which was standardized across the campus, and he thought that that he was doing everything correctly.
159. He submitted documentary evidence of the “ICASS Guidelines” where he said that the guidelines allow for discretion and all subjects made use of such guidelines.
160. He said that he when he joined the college in 2008, he was provided with the ICASS Guidelines and he was never approached previously that he was assessing incorrectly.
161. He said that when he submitted the documents to the Campus Manager, Mr Nkadbinde, office, Mr Skaddie had checked the documentation and he said that all was in order.
162. He submitted documentary evidence of the “ICASS Guidelines” where he said that they were used at the Lecturer’s discretion which was used across all subjects as a generic document.
163. He submitted documentary evidence of the “ICASS Guidelines” where it was submitted that “the assessment tool which best suits the type of assessment task being administered must be compiled to match the type and purpose of the assessment task. It may include, but is not limited to, marking memoranda/guidelines, rubrics and checklist…”.
164. He said that he taught Public Administration (N5) and he had to develop his own rubric.
165. He submitted documentary evidence of his own “Rubric” that he developed, and he gave it to the students as a guide and it was not limited to the 6 (six) headings, furthermore the student(s) attached the policies to their assignment(s).
166. He said that he could not mark without a rubric, script and textbook.
167. He said that he was a subject specialist, and he was assessing skills that were applied.
168. He said that he ticked the assignment in acknowledgement that he had seen the document.
169. He said that he included the rubric that he developed when he marked, but he did not have any staples at that stage, but there were placed inside the envelope that he submitted and furthermore they did not contact him after he had submitted.
170. He submitted documentary evidence of the “ICASS Guidelines” where it was submitted that “practical assignments are open-ended in nature, they should preferably be assessed by means of a rubric or checklist and not by a marking memorandum…”. Furthermore, “the assessment criteria used in a rubric should clearly distinguish between levels of competency, and marks must be allocated per level”.
171. He said that he received the notification of his disciplinary hearing on 28 November 2019, and there was no exchange of bundles of documents before the disciplinary hearing and the Chairperson subsequently postponed the matter.
172. He said that during February 2020, he was informed by the Chairperson during the disciplinary hearing that he could not call his witness(s) as they were also implicated, and the Chairperson did not make a ruling in that regard.
173. He said that the Chairperson did not allow him to submit documentation as the Chairperson said that it was too late to submit documentation, furthermore that it was not applicable.
174. He said that the disciplinary hearing concluded on 18 February 2020, and he submitted closing arguments in writing during February 2020, yet he only received the outcome 131 (one hundred and thirty-one) days later.
175. He said that he only received the sanction not the findings from the Chairperson.
176. He said that he submitted the documentation during June 2018, yet it was only investigated during February 2019.
177. He said that it was a “witch-hunt” and that the campus always had challenges including strike action.
178. He said that he requested documentation during the disciplinary hearing as mentioned in the “preliminary issues”, however this was not forthcoming from the Respondent and the minutes were not a true reflection of what had transpired.
179. He said that he had marked all of the scripts as per the “ICASS Guidelines”.
180. He said that he was highly educated with a Doctorate in Education and had a clean disciplinary record.
Under cross-examination (only concessions or significant versions put are recorded)
181. The Applicant explained that he had been an Educator for over 20 (twenty) years and used the “ICASS Guidelines”, subject policy, POE (pre-moderation; post-moderation), tasks and the rubric when assessing.
182. The Applicant explained that he had accidently placed the assessments in Mr Nkabinde’s office as he was in a hurry and the documents had actually formed part additional supporting documents.
183. It was put to the Applicant that he was charged with not marking students’ scripts and not only in relation to the non-marking of the assignments.
184. It was put to the Applicant that it was unreasonable to think that he had submitted the incorrect documentation as he knew the importance of “ICASS Guidelines” and he was trying to mislead the commission.
185. The Applicant contested this statement and said that he was not good with administration, and he was not afforded an opportunity to explain.
186. It was put to the Applicant that the marks that he had referred to as “supporting documents” were submitted to the Department. The Applicant contested this statement.
187. It was put to the Applicant that there was no correlation between the assignment and the alleged rubric that he submitted.
188. The Applicant contested this statement and said that he developed the rubric in order to determine what he wanted to assess.
189. It was put to the Applicant that he had allocated marks to a student who did not even attach the policy in their assignment.
190. The Applicant contested this statement and said that he provided the marks out of his heart, and he could make use of his own discretion.
191. It was put to the Applicant that it was difficult for an external moderator to moderate as there was no evidence to moderate as such, they would need to rely on an assessment tool.
192. It was put to the Applicant that when he had requested his release letter for marking during June 2018, he indicated he would only receive such if all was in order, however the Respondent only discovered his non-marking of the scripts during February 2019, therefore they were unaware of the fact during June 2018.
193. The Applicant contested this statement and said that the Respondent sat with the documents for 7 (seven) months.
194. It was put to the Applicant that he was given an opportunity to submit mitigating factors, yet the findings were emailed to his representative, Mr Mpho Matidze.
195. The Applicant contested this statement and said that it was emailed to his representative, however he had not received the correspondence.
196. It was put to the Applicant that it was the Respondent’s version that he had failed to comply with the ICASS Guidelines as such, the Respondent did not have any confidence in their graduates.
197. The Applicant contested this statement and said that he worked professionally and he knew that the students were competent as he used the same textbooks and applicable methods.
198. It was put to the Applicant that if the Campus Manager, Mr Nkabinde, did not address the non-marking of the scripts the Respondent could have lost their certification.
199. The Applicant contested this statement and said that Umalusi first requested the documentation then conducted the verifications if the need necessitated such.
200. Re-examination
201. In re-examination the Applicant explained that post-moderation was not completed due to the unrest at the campus. Furthermore, post-moderation was a procedure where 10% of the scripts would be moderated, however pre-moderation was more important as it provided the allowance to conduct the processes.

Mr Mpho Patrick Matidze
202. The witness testified under oath that he was a Union Official.
203. The essence of the witness’ testimony inter alia was that he was also employed as a Lecturer and fulfilled the roles of Chief Marker, Verifier and Internal Moderator.
204. He said that during the disciplinary hearing proceedings he represented the Applicant in the capacity of a NEHAWU Official.
205. He said that during the disciplinary hearing proceedings he wanted to call 2 (two) witneses, namely the Senior Lecturer and the HOD. However, the Respondent’s representative, Mr Matjika, had indicated that this would not be permitted as they were also implicated in the matter, as such the allegations that were levelled against the Applicant could not have been a fair hearing as the witness(s) were denied.
206. He said that as a professional he had to keep his cool at all times and therefore he did not insist on the witness(s) being present.
207. He said that initially there was not an exchange of bundles furthermore, the documents that were requested including the declaration thereby ensuring that the marks were authentic that would have been signed by the Senior Manager and HOD, were also not provided by the Respondent.
208. He said that the marks were recorded on the “ITS” system had gone through all of the processes as the marks needed to be pre-moderated and post-moderated.
209. He said that he required the box that the Applicant had submitted in order to ensure that nothing had been removed from it.
210. He said that the Campus Manager was new and as an academic institution any document cannot work with time constraints as it would need to be authentic.
211. He said that during the disciplinary hearing proceedings initially they were not prepared as they had not exchanged bundles, however the Chairperson permitted them to obtain the bundle and to adjourn the proceedings. However, the process was contaminated as the Respondent’s representative, Mr Matjika, provided an instruction that they would not accept any document and the Chairperson ruled in favour of the Respondent.
212. He said that he had been a Lecturer since 2001 at Park Town Campus and was involved in the development of the ICASS Guidelines.
213. He said that the ICASS Guidelines were developed to guide as an instrument used and it was not specific for English or business studies, as such a person may use their own discretion in line with the guidelines.
214. He said that during the disciplinary hearing proceedings they had a witness, the Curriculum Manager, Ms Baloyi, who was the only person that could explain, however she took indefinite leave and could not attend the disciplinary hearing proceedings.
215. He said that he had never been trained on ICASS Guidelines since 2015, and it could be reviewed from time to time.
216. He said that a Lecturer could mark using their own discretion for example if it was a short question, which would be dependent on the style of marking.
217. He said that the Applicant had also been a Chief Marker since 2012 and he was trusted by the Department therefore you would not need 10 (ten) ticks for 10 (ten) marks so to speak.
218. He said that the Respondent’s version that the Applicant was inconsistent in his way of marking in terms of the ICASS Guidelines, however if they were alleging such, it would need to be qualified as every marking style would never be the same. If a rubric was used, a person would use their own discretion.
219. He said that the reason why the Respondent did not want to disclose the documents regarding the marks of the ITS system was because they did not want to compromise their case.
220. He said that the Applicant was a Post-level 1 (PL1) Lecturer. This would be followed by PL2 (Post-level 2), then PL3 (Post-level 3) which was the HOD and the Campus Manager would be a PL5 (Post-level 5).
221. He said that the Respondent was wrong, and it was equivalent to ambush as they did not follow the correct procedure when requesting documents, therefore it was a total abuse of power.
Under cross-examination (only concessions or significant versions put are recorded)
222. It was put to the witness that he was incorrect in him saying that he was not aware of the disciplinary hearing meeting as it was very clear that the Applicant had signed in acknowledgement thereof.
223. The witness contested this statement and said that he did not have the privilege of seeing the bundle prior to the proceedings.
224. It was put to the witness that the Applicant was well aware of his rights as per the notification of disciplinary hearing that he received.
225. Matidze explained that he wanted to “school” the persons during the disciplinary hearing proceedings as he wanted to empower and provide guidance in terms of the ICASS Guidelines, as the process was contaminated
226. It was put to the witness that if he had wanted to capitalize on the witness, Ms Baloyi (Curriculum Manager) than nothing had stopped him from her being a witness during the arbitration proceedings.
227. The witness contested this statement and said that Ms Baloyi had taken indefinite leave and the reasons had not been disclosed in terms of the confidentiality thereof.
228. It was put to the witness that he was trying to mislead the Commission as the document that he requested was requested after the Respondent had closed its matter.
229. Matidze explained that when marking the marking, the guideline will guide a person and the analyses grid (pre-assessment moderation) if not in place it would be tantamount to fraud.
230. Matidze explained that he requested a list of the contents that was in the box that the Applicant had submitted as he did not know what was or was not in the box and whether or not they were with the HOD/Senior Lecturer.
231. Matidze explained that he requested all of the documents as the only way to determine how the Applicant arrived at the marks that were allocated was to have the complete assessment tools in his hands.
232. It was put to the witness that he had indicated that the Applicant had marked accurately yet now he could not explain how the Applicant arrived at the marks that were allocated.
233. The witness contested this statement and said that the Chairperson had refused the submission of the document(s).
234. It was put to the witness that the Applicant contends that his dismissal was unfair, yet in the Applicant’s bundle there was no sign of the marking guideline and the analyses grid and if his statement was truthful, he could have produced his evidence.
235. The witness contested this statement and said that he did not know if the HOD and Senior Lecturer had this information and perhaps the Applicant had been sabotaged.
236. It was put to the witness that even if the file had been lost the Applicant had the duty to keep the POE on file.
237. The witness contested this statement and said that the Senior Lecturers and HOD could also view the files and if the Respondent provided them with a list of what had been submitted it would have assisted the process.
238. It was put to the witness that the Applicant was expected to keep the POE for a period of 3 (three) years and it was not reasonable to say that the documents had disappeared.
239. The witness contested this statement and said that at times files got lost when they are moderated.
240. Matidze explained that no person signed for what the Applicant submitted as such the HOD and the Senior Lecturer were also charged and if they had received the declaration, it would have explained a lot.
241. It was put to the witness that the Campus Manager had the right to request any staff member for assistance.
242. The witness contested this statement and said that there was a Management procedure that should have been followed and the communication channels should have followed the correct workflow.
243. Matidze explained that the number of tasks that a student was required to do was not limited and within the TVET sector it would only be required to do an assignment and an examination. Furthermore, it changed from time to time and was dependent on the Lecturer.
244. It was put to the witness that he was trying to mislead the tribunal as term mark consisted of the examination, assignment and the test and it was not based on the Lecturer’s discretion.
245. Matidze explained that a student would be required to obtain a minimum of 40% in order to sit for the examination, however if a student achieved less than the required minimum the Lecturer could use their discretion and the student could still sit for the examination.
246. Matidze explained that the term mark could be swopped as long as the total value was a 100% and it was occurring within the hospitality department.
247. It was put to the witness that the examination weighting and percentage allocation could not be swopped and the assignment, test and the examination all contributed to the final mark therefore he was trying to mislead the commission.
Re-examination
248. In re-examination the witness explained that the ITS marks were accompanied by supporting documents that included mark sheets, records and the signed declaration by the Campus Manager and the HOD.
249. In re-examination the witness explained that the Applicant was working at Soshanguve Campus and when he left the campus it was not practical to take the files with him.

Analysis of evidence and argument
250. There was a bundle of documents submitted by the Respondent listed as “R1 & R2” and marked accordingly.
251. There was a bundle of documents submitted by the Applicant listed as “A” and marked accordingly.
252. In terms of Section 185 of the “LRA” every employee has the right not to be unfairly dismissed. Section 192(1) of the “LRA” as amended provides that “in any proceedings concerning dismissal, the employee (the Applicant) must establish the existence of the dismissal”. Concerning the matter before me the dismissal was not in dispute, therefore the onus shifted to the Respondent to prove that the dismissal was procedurally and substantively fair.
253. I am therefore guided by the guidelines in cases of dismissal for misconduct:
254. In considering the substantive fairness of the dismissal, I am required to consider Item 7 of the Code of Good Practice: Dismissal, (the Code), as set out in Schedule 8 of the “LRA”.
255. The Code states that any person who is determining whether a dismissal for misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.
256. In the case of Rubric Consulting (Pty) Ltd v Dixon & others (JR 1972/14) (LC) the court held when “determining the substantive fairness of a dismissal each case must be determined on its own merits”.
257. In the case of Industrial Development Corporation of South Africa Limited v Roscher, Myhill and the CCMA (JR2946/10) [2017] ZALCJHB 156, the Court held in “cases of misconduct, each case must be decided on its own merits”. Furthermore, “…the discipline of senior staff is not dependent on the discipline of their managers, each employee has a duty to discharge his/her scope of work as expected and contracted for”.
258. In the case of Department of Co-Operative Governance, Human Settlements and Traditional Affairs, Limpopo Province and Another v Seopela N.O. and Others (JR226/2012 [2015] ZALCJHB (4 February 2015); the court held that “the conduct must involve a departure from the standard of the reasonable person to such an extent that it may be considered “extreme”. To do so, the conduct should either demonstrate “conscious risk-taking”, a complete “obtuseness of mind” – or, where there is no conscious risk-taking, a “total failure to take care”.
259. In Wasteman Group v SAMWU [2012] 8 BLLR 778 (LAC) the court held that “the difference between insubordination and gross insubordination is a question of degree. There is a difference between an employee that partially defies an instruction but later completely applies with it and an employee that deliberately refused to obey an instruction…”.
260. In the case of NUMSA obo Selepe v ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] 5 BALR 481 (MIBC) Van Aarde, C [AT5.3.5] the court sufficiently defined gross negligence versus ordinary negligence as follows “the carelessness or mere failure which constitutes ordinary negligence, changes in gross negligence to an indifference to, and blatant violation of a workplace duty. Gross negligence can be described as a conscious and voluntary disregard of the need to use reasonable care, which has or is likely to cause foreseeable grave injury or harm to persons, property or both. It is the conduct that is extreme when compared to ordinary negligence. Gross negligence also focuses on the magnitude of the risks involved, such that, if more than ordinary care is not taken, a serious mishap is likely to occur [at 5.3.6]. Ordinary negligence and gross negligence accordingly differ in degree of consciousness or inattention; and both differ from ‘willful misconduct’, which is conduct that is reasonable calculated to cause damage or injury”.
261. The Applicant submitted that he was unfairly dismissed for substantive reason(s).
262. The Respondent’s representative led overwhelming evidence in that the Applicant contravened a rule. The Respondent’s witness Mr Siphiwe Nkabinde, submitted documentary evidence of the “ICASS guidelines” where it was submitted that “…the Department of Higher Education and Training (“DHET”) deemed it necessary to develop guidelines for the conduct of internal assessment for N1 to N6 programs. The purpose of these guidelines was to set consistent standards for the setting and moderation of assessment tasks (pre-assessment quality assurance), conducting and marking of assessment tasks (post-assessment quality assurance) and moderation and verification (post-assessment quality assurance)”. Furthermore, he submitted oral testimony where he submitted that “he did not understand how the Applicant arrived at a “70%” mark allocation with 6 (six) ticks allocated on the script as he had not submitted a rubric, where it would have indicated the criteria used and the assessment scale”. He submitted documentary evidence of a “Marking Rubric” and submitted that “the document had not been submitted to him and furthermore the Respondent had not made use of such a rubric tool”. Furthermore, he submitted oral testimony that “the Applicant’s “Marking Rubric” did not speak to one another, and there was no clear correlation and that the document had been fabricated”.
263. The Respondent’s other witness, Mr Selaelo Sebetlene, submitted oral testimony that “the assessments were guided by the syllabus and the “ICASS Guidelines”. He submitted documentary evidence of the “TVET Curriculum Instruction” which guided all assessment practices, where it was submitted that “TVET colleges are expected to develop a policy for internal assessments to cover all aspects in the complete assessment process, compile trimester and semester assessment plans, design and moderate suitable assessment tasks and tools…”. He furthermore submitted oral testimony where it was submitted that “the ICASS Guidelines was like a “Bible” and as a Lecturer you would give students 2 (two) tests, an assignment and an examination which cannot be deviated from as it was an instruction”.
264. The Respondent’s other witness, Mr Pheeha Matjika, submitted oral testimony that he “requested any information to counter the investigation, however no evidence was forthcoming that the Applicant had marked the scripts”. He furthermore submitted oral testimony where it was submitted that the “ICASS Guidelines was a mandatory document and was used to assess a student’s competency as such the Applicant acknowledged during the proceedings that he was aware of the guidelines since 2008”. He submitted oral testimony that “at no stage was the Applicant not allowed to bring in any witness(s) and as such the Applicant’s version must be untrue”. He furthermore submitted documentary evidence of submitted documentary evidence of a “marking rubric” where it was submitted that “the document was a mere after-thought and that would have been submitted previously as it would have had gravity to counter” the Respondent’s version.
265. The Respondent’s witness(s) who testified, Mr Siphiwe Nkabinde, Mr Selaelo Sebetlene and Mr Pheeha Matjika, were good and credible witness(s), their versions were relevant, reliable and consistent. The oral and documentary evidence that was submitted with regards to the rule or standard that was in place, it was evident that it had been broken.
266. The Applicant was not a credible witness, his versions were relevant although at times appeared to be evasive and contradictory.
267. The Respondent’s representative demonstrated and discharged her onus to prove that substantive fairness was adhered to.
268. In my view, on a balance of probabilities the Applicant clearly contravened a rule(s) in the workplace that was known to himself and the rule was consistently applied.
269. Section 193(2) of the Act provides that “The Labour Court or the arbitrator must require the employer to re-instate or re-employ the employee, unless –
a. the employee does not wish to be reinstated or re-employed;
b. the circumstances surrounding the dismissal are such that a continued relationship would be intolerable;
c. it is not reasonably practicable for the employer to re-instate or re-employ the employee; or
d. the dismissal is unfair only because the employer did not follow a fair procedure.”
270. The Applicant indicated that he sought retrospective reinstatement.
271. The Applicant on his own version, submitted that he had delivered “the scripts as requested which included the rubric, assignment, research document, test (question paper and answer sheet) and internal examination”. He submitted on his own version when he “joined the college in 2008, he was provided with the ICASS Guidelines”. He furthermore submitted documentary evidence of the “ICASS Guidelines” where he said that they were used at the Lecturer’s discretion which was used across all subjects as a generic document.
272. I felt it prudent, for the sake of this award to furthermore define ‘gross negligence and negligence according to Grogan; “Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary negligence, which is a mere failure to exercise reasonable care”.
273. In relation to charge 1 ‘dereliction of duties’ and charge 2 ‘gross negligence’ I will deal with the charges simultaneously as they are closely interrelated with reference to Grogan’s definition (see paragraph 272).
274. On a balance of probabilities, in relation to the Applicant’s misconduct i.e., ‘Dereliction of duties’ and ‘gross negligence’ in terms of the failure to mark the student(s) scripts as required by the ICASS Guidelines. The Respondent’s witness, Mr Siphiwe Nkabinde, testified that the ticks on the scripts did not correspond to the marks that had been allocated by the Applicant. Furthermore, the Applicant had deviated from the ICASS Guidelines and he had not received the rubric when he received the documents from the Applicant. Furthermore, the rubric that was subsequently submitted by the Applicant was not the standard rubric tool. This was further corroborated by the Respondent’s other witness, Mr Pheeha Matjika, where he testified that the Applicant’s rubric was a mere after- thought and the Applicant would have submitted it previously in order to rebut the allegations that had been levelled against him.
275. On a balance of probabilities, the Applicant conceded during cross-examination that he was aware of the ICASS Guidelines “since 2008”. The Applicant during cross-examination conceded that he submitted the scripts in error when he submitted to the principal’s office and he included the rubric with his submission, but he did not have a stapler to attach the documentation, as such they were placed in an envelope. Furthermore, the scripts that he submitted were not submitted to the DHET but were just “supporting documentation” for the students. On the other hand, the Respondent’s representative, submitted that the scripts that were used in the submission to the department were not merely “supporting documents” for the students in question. I find the Applicant’s version highly unlikely and improbable in the circumstances. The Applicant as a reasonable and responsible person ought to have had all of his administration files and evidence for all students readily available for assessment purposes in line with the ICASS Guidelines. The ICASS Guidelines indicated that “students’ assessment evidence should be kept in arch-lever files, flat or hanging files or box files and should be available for moderation, monitoring and verification purposes, for the duration that the ICASS marks are valid and also for a reasonable period as indicated in the introduction after the examination results have been released to allow for instances where the ICASS marks are questioned and need to be verified”.
276. In my view, on a balance of probabilities, the Respondent’s witness Mr Siphiwe Nkabinde, testified that there was no correlation as to how the Applicant arrived at his mark allocations(s), whereas he had not submitted a rubric, where it would have indicated the criteria used and the assessment scale. This was furthermore corroborated by the Respondent’s other witness, Mr Pheeha Matjika, who testified that there was no justification nor correlation as to how the Applicant arrived at the student(s) mark allocations. On the other hand, the Applicant in his evidence-in-chief submitted that Lecturers used their own discretion “which was used across all subjects…” and the ICASS Guidelines were used as a “generic document”. In my view, the rubric was a compulsory assessment tool that was utilized when marking student(s) scripts/assessment(s) and it was essential to explain the assessment criterion/scale for the students/marking benefit(s). Furthermore, Lecturers were expected to allocate marks accordingly as per the criterion/assessment scale that had been outlined.
277. In relation to charge 3 “act of misconduct as contemplated in annexure A of Resolution 1 of 2003 which read as follows ’prejudices the administration, discipline or efficiency of the department, office or institution of the State’” in relation to the non-marking of the scripts. The Respondent’s representative Mr Siphiwe Nkadinde, testified that the Applicant’s conduct exposed the Respondent to potential risk which impacted on the “reputation of the entire college as the student(s) were deprived of opportunities”. This was furthermore corroborated by the Respondent’s other witness, Mr Pheeha Matjika, who testified that the Applicant’s non-marking of the scripts “disadvantaged incompetent students who appear to be competent and if it had been reported to the Department, the Respondent would suffer consequences”. On the other hand, the Applicant conceded during cross-examination that “Umalusi first would have requested the documentation then conducted the verifications” if it had been required.
278. On a balance of probabilities, in my view, the Applicant’s scripts/assessments were submitted to the DHET which inevitably contributed to the student(s) semester marks. Therefore, if external investigations had unfolded it could have had a detrimental impact on the Respondent. Furthermore, the students who completed Public Administration N5, and who may have subsequently completed their studies were released into the working environment whether they were competent or not.
279. In my view, on a balance of probabilities, the Applicant could not produce any clear and reasonable documentary proof to substantiate his version that the scripts were marked in compliance to the ICASS Guidelines. Based on the documentary evidence led of the “scripts” there was no correlation nor relation whatsoever as to how the marks had been allocated and what assessment criteria defined the mark allocation(s).
280. In my view, the Applicant had been employed for a period of almost 12 years, which is indeed an extensive period of time. In addition, the Applicant fulfilled an important role as a Lecturer at a tertiary institution. The very essence of any employment relationship is based on trust, honesty and respect. The Applicant as a reasonable and responsible person ought to have known better. Furthermore, it was expectant and prudent of the Applicant to act ethically, with integrity and honesty to ensure that his conduct complied to the Respondent’s policies and procedures and to furthermore ensure that he remained accountable and responsible, by virtue of his position. Furthermore, he played a crucial role in imparting knowledge to students to ensure that they were competent once they graduated. See the case of NUMSA obo Selepe v ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] 5 BALR 481 and the case of Department of Co-Operative Governance, Human Settlements and Traditional Affairs, Limpopo Province and Another v Seopela N.O. and Others (JR226/2012 [2015] ZALCJHB (4 February 2015).
281. In terms of the procedural aspects that were in dispute the Applicant submitted that he was not afforded an opportunity to allow witness(s) to testify during the disciplinary hearing proceedings and he was not permitted to include additional documentary evidence during the disciplinary hearing proceedings. Furthermore, the outcome of the disciplinary hearing was only received some 131 (one hundred of thirty-one) days after the disciplinary hearing had concluded. This was furthermore corroborated by the Applicant’s other witness, Mr Mpho Patrick Matidze.
282. In the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC); the court held that “the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to the allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof”.
283. The Employment of Educators Act, 76 of 1998 (24)(1)(a) provides that “within seven days after the making of the finding, report to the employer on the result of the enquiry”.
284. On a balance of probabilities, the Applicant submitted that he received the outcome of the disciplinary 131 (one hundred and thirty-one) days after the disciplinary enquiry concluded on 18 February 2020. The Respondent did not contest the time periods in question.
285. In my view, on a balance of probabilities, the Respondent’s procedure was not complied with. The Respondent’s version was that the delays were attributed to the lockdown period. South Africa entered into lockdown level V on 27 March 2020, which was more than 1 (one) month after the conclusion of the Applicant’s disciplinary hearing, yet the finding was not forthcoming from the Respondent at that stage.
286. In my view, on a balance of probabilities, the Applicant was represented by a Trade Union during the disciplinary hearing proceedings. During the arbitration proceedings no application was submitted to subpoena any witness(s). Furthermore, the opportunity was provided to present any evidence during the arbitration proceedings.
287. The Applicant was afforded an opportunity to ventilate the dispute during the proceedings at the Council. Thus, the Applicant was not prejudiced.
288. I accordingly make the following Award:

Award
289. I find that the dismissal of the Applicant, Mr JM Mthimunye, by the Respondent, the Department of Higher Education and Training (Tshwane North TVET College) was substantively fair but procedurally unfair.
290. In these circumstances I deem compensation equal to 2 (two) months just and equitable the total amounts to R26, 425-50 * 2 = R52, 851-00 (fifty-two thousand eight hundred and fifty-one Rand).
291. The amount referred to in paragraph 290 above is subject to such deductions as the Respondent is in terms of the law entitled or obliged to make and is to be paid to the Applicant, Mr JM Mthimunye bank account on or before 17 December 2021.

Thus, signed and dated on the 01 December 2021.


Leanne Alexander
ELRC Panelist