ELRC606-20/21WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA ZOOM

In the matter between

ANWAR ALLIE Applicant

and

DHET (Northlink College) Respondent


ARBITRATOR: D P Van Tonder

CASE NUMBER: ELRC606-20/21WC

HEARD: 27 May 2021; 28 September 2021
24 November 2021; 11 February 2022

FINALISED: 23 February 2022

DELIVERED: 7 March 2022


SUMMARY: Labour Relations Act 66 of 1995 –Section 186(1)(a) – Alleged Unfair Dismissal – Misconduct



ARBITRATION AWARD


I THE PARTIES

Applicant
[1] The applicant is Mr Anwar Allie. Applicant was represented by a practising attorney, Mr K Cato from Cato Attorneys.

Respondent
[2] Respondent is the Department of Higher Education and Training. Respondent was represented by an employee Mr M Boezak.

II PROCEDURAL HISTORY
[3] This arbitration in this matter was held via Zoom. Evidence was heard on 27 May 2021, 28 September 2021, 24 November 2021 and 11 February 2022. The proceedings were digitally recorded. The matter was finalised on 23 February 2022 when I received the written closing arguments. The matter was also scheduled for arbitration for 29 June 2021 but had to be postponed at the request of respondent.


[4] This matter concerns an alleged unfair dismissal dispute about misconduct. In accordance with clause 17.4.2 of the ELRC Dispute Resolution Rules, a party is not entitled to legal representation in such disputes unless the arbitrator concludes that it is unreasonable to expect the party to deal with the dispute without legal representation:

If the dispute being arbitrated…. is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to an employee's conduct or capacity, the parties are not entitled to be represented by a legal practitioner in these arbitration proceedings unless:
(a) the commissioner and all the other parties consent; or
(b) the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering:
(i) the nature of the questions of law raised by the dispute;
(ii) the complexity of the dispute;
(iii) the public interest; and
(iv) the comparative ability of the opposing parties or their representatives to deal with the arbitration of the dispute


[5] Respondent applied for the right to legal representation. Mr Boezak indicated that he does not oppose the application and said that he has 15 years’ experience in labour law, has a diploma in labour law and is busy with his Masters degree in labour law. After hearing arguments, I was of the view that it would be unreasonable to expect applicant to deal with the dispute without legal representation. In arriving at this finding I considered the nature of questions of law raised by the dispute, the complexity of the dispute, the public interest and the comparative ability of the parties or their representatives to deal with the arbitration of the dispute. Accordingly I ruled that legal representation should be allowed.

III THE ISSUES TO BE DETERMINED

[6] I am required to determine whether applicant’s dismissal was for a fair reason and in accordance with a fair procedure, and if not, the appropriate relief.

IV BACKGROUND
[7] The applicant commenced his employment as a lecturer with Northlink College in February 2010. On 1 March 2015, when the Department of Higher Education and Training became the employer of lecturers employed by TVET Colleges, respondent became applicant’s employer. Following a disciplinary hearing, applicant was dismissed on 30 November 2020. At the time of dismissal applicant was employed as lecturer level 1 in the Boiler Making Department at the Belville South Campus at a monthly salary of R18 636,50, teaching NATED N2 Drawings and Platers Theory.

[8] There were five charges against applicant. He was acquitted on charge 2 but convicted on the remaining four charges. The charges as contained in the charge sheet, read as follows:

Charge 1
Commits a common law or statutory offence in that you breached the common law duty of good faith against the Department of Higher Education and Training (Northlink College) by failing to further the business interests of the employer by rendering and offering to render services in direct competition with the employer.
Charge 2 [Acquitted]
Without the written approval of the employer, performs work for compensation for another person or organisation either during or outside working hours.

Charge 3
Misuses your position in the Department of Higher Education and Training (North Link College) to promote your personal interests or that of a registered entity, Lemon Serengeti, where you serve as a director.

Charge 4
Insubordination in that you failed to carry out a lawful and reasonable order or instruction in that you failed to report for duty on 4 November 2020 after instruction was communicated to you to report for duty.

Charge 5
Unauthorised absence in that you absent or repeatedly absented yourself without reason or permission on 4 November and 5 November 2020.

V THE EVIDENCE

Documentary evidence
[9] The parties handed in six pdf bundles of documents. Respondent’s bundles are contained in Bundles A1 and A2. Applicant’s bundles are contained in bundles B1, B2, B3 and B4.

[10] I do not intend to summarise the contents of all the bundles, but will briefly proceed to refer to the most essential documents around which some of the charges revolve.


[11] Page 100 of Bundle A1, contains the following Facebook message and WhatsApp status message, that applicant admits he had placed, both of which contains applicant’s phone number:

WhatsApp
Boilermaking & Welding
No need to study at a TVET College to become a boilermaker or welder.

We offer skilled courses in both and Trade test preparation at 50% less than any Tvet College price with better quality

Contact for more information on
084 450 8370


Facebook
Boilermaker trade test prep
drawings assistance or N2 PSSD

FREE…only for company
candidates
Let your company contact me
084 450 8370

On-site assistance with drawings


[12] Pages 5 to 11 of Bundle B1 contains a WhatsApp exchange between applicant and a certain Leandre Masikani regarding the WhatsApp status message that applicant had placed.
Hey…my name is Leandre Masikani… I contact this number for more information to become a Boilermaker

Hi…What do u need? Are you working as a boilermaker? Or no experience?

No experience…Its my first year at college.

College?
What College?
What are you doing?

Northlink College Belville

Are you in Nated?
OK to become a red seal boilermaker..These days you do not need nated subjects. There are many streams you can become a boilermaker.

Okay I understand. So you will help me to get that forms or just show me the ways

3 years work experience is important
Where are you now

I am in Northern Cape but next week I am going back to Cape Town
But what if you don’t have any experience…than I have to look for a job to get my 3 years experience?

Will you be in N2 this trimester?

Yes I will be in N2

OK…We will speak on 7 September

Come to me..Im teaching N2
U from northern Cape… U can work on mines as well as welder
No need for red seal

Okay so we will speak at college and then explain me everything
Okay but I have to pass all my subjects to before I can continue with that

No. I will explain in class
[13] Pages 84 and further of Bundle A1 contain proof that applicant is or was a director/member of three companies, one being Lemon Serengeti.

[14] Pages 101 to 104 of Bundle A1 contain the following WhatsApp messages that were all sent on 4 November 2020:
Message from applicant to Mrs Mbolekwa
Good morning
My case has been postponed till Friday.. But I won't be in today and tomorrow as I have to prepare my case physically and be mentally prepared ...
This case of management against me are serious and it affects my work with the
learners.
See you on Friday after hearing. Thanks

Sent 09:13


Message from Mrs Mbolekwa to applicant

Alright Mr Allie, may all go well with vou. Your students will right in the hall. Thanks for letter me know

Sent 09:15

Message from Mrs Mbolekwa to applicant

I have informed Mr Pepese he says the leave is not approved you must come back to work

Sent 9:50
Delivered 9:50
Read 9:50

Message from Mr Pepese to applicant
Dear Mr. Allie I unfortunately did not know that your hearing is scheduled for today. Even though I understand the pressure of a hearing I am unfortunately not able to allow/grant you leave this is due to operational reasons. I therefore urge you to immediately come back to work and the failure to do so will be considered a misconduct. Thank you, Mbulelo Pepese.



Evidence on behalf of respondent
[15] Johan Robertson testified that he is employed by respondent at Northlink College in the training and education unit as a manager at the central office. He was the chairperson of applicant’s disciplinary hearing. Except of charge 2, he convicted applicant on all of the charges and held that applicant should be dismissed. He became involved as the chairperson of applicant’s disciplinary hearing as from 16 November 2020. His expertise lies in engineering but he also holds a LLB and certificate in Labour Law.

[16] He denies applicant’s allegation that there was splitting of charges in relation to charges 1 and 3 and charges 4 and 5. This was in any event not raised at the disciplinary hearing.

[17] He also denies applicant’s allegation that he was biased and that he should have recused himself. This is also something that applicant did not raise during the disciplinary hearing. He has not ever in the past presided over any disciplinary hearings or grievance hearings in respect of applicant. He can recall that during one meeting involving applicant he was simply asked to bring in some documents. Asked about a grievance that applicant has lodged some years ago, he responded that this was not addressed to him, and that he was simply copied in the email but that the area of concern was not his responsibility.
[18] When it was put to him that applicant in fact complained that he (Mr Robinson) was not doing his job in that he was not doing class visits, he testified that lecturers cannot request class visits and that in any event it was the duty of the program manager or campus manager to conduct visits. His expertise is electrical engineering and has no knowledge of applicant’s field of expertise. He can also recall another grievance which applicant had lodged about textbooks. Once again this is something that falls outside his duties. That falls within the duties of the campus management. It was put to him that there was an incident involving marking of examination concerning applicant in which he investigated applicant He denied that he was involved in the investigation of this. It is the campus manager that would investigate this. His role is simply to make evidence available. Asked if he is aware that applicant was threatened with a warning in relation to that incident, he said that he was not aware.

[19] Mbulelo Pepese testified that he is employed by respondent as academic head of the Bellville Campus at Northlink College. Charge 1 arose from the fact that respondent became aware of the two advertisements that applicant had placed (Bundle A page 100). He was not responsible for formulating the charge.

[20] His comment on the advertisement that applicant placed is that the advertisement goes contrary to what respondent expects of applicant because lecturers must encourage people to study at TVET colleges and not inform then to the contrary. Lecturers cannot run a business which will compete with what the college is doing. Through his work as an assessor at the college, applicant will have a good knowledge of what is required from students. He is not permitted to use that information in competition with the college.

[21] Asked about his knowledge that Mr Kevin Ackers and Mr Ismael Kleinsmith also operated a business, he testified as follows. Mr Kleinsmith was a lecturer at the college but is no longer. Mr Ackers is still a lecturer at the college. He heard rumours that they were involved in a business but no complaints were ever lodged and neither did he ever come into any evidence of such business. He could not ask for them to be investigated when there were only rumours but no evidence. Mr Ackers once asked him what the procedure is if he would want to obtain permission to run a business and he explained the process to him. Whether he then applied for permission, he does not know because he does not deal with the applications for permission to run a business. Other employee had also asked him to explain the procedure to get permission to run a private business.
[22] Regarding charges 4 and 5, and applicant’s absence from work from 4 to 5 November 2020 he testified that during that week applicant knew that he had to teach students of a colleague Mr Kobeni who was sick. He had discussed this with applicant and applicant was fully aware of this. When applicant was away from work on 5 November this created chaos because the students were up in arms when they had no lecturer. Students verbally attacked him and parents phoned him. He had to hear that students pay fees and now they are not getting a service in return.

[23] He first became aware of applicant’s absence on the morning of 4 November. Ms Mbolekwa was applicant’s manager and he is Ms Mbolekwa’s manager. When he was advised that applicant was absent that morning, he asked Ms Mbolekwa where applicant was. She then informed him that applicant had said he would not be coming in as he was preparing for his hearing. He told Ms Mbolekwa to instruct applicant to come back to work. While it is so that Ms Mbolekwa initially said in the WhatsApp that applicant can stay at home, he overruled her. Later that morning he phoned applicant but could not get through. He also sent a WhatsApp but the message did not go through.


[24] If applicant wanted leave he had to apply for it in the correct manner and it would then have been decided whether he can get the leave that he applies for. Applicant knew very well how important it was for him to be present at work on 4 and 5 November because he had discussed this with applicant previously.

[25] During cross-examination it was put to him that applicant is simply being victimised because of grievances that he had lodged. Once grievance related to the fact that applicant was not getting promotion. He denies that applicant was ever victimised or that he was dismissed because of the grievances that he had lodged.

[26] Kurt Larry Randall testified that he is employed by respondent as campus manager at Bellville South campus of Northlink College. He came to know about the advertisements that applicant had placed when the manager of the boiler making workshop Mr Johnson informed him of this. He then informed the HR manager Mr Bothma. What applicant had done is not acceptable. Because of applicant’s work at Northlink College applicant was in the privileged position in that he knew exactly what was required in order to pass the trade tests and he misused that information for his own benefit. Employees were all made aware of the procedures they need to go through to apply for permission to do private work.
[27] He heard rumours that Mr Ackers, a lecturer had his own private business. He did not have any evidence in this regard. He informed the HR Mr Bothma to investigate the rumours. He was later told that it was not Mr Ackers’ business but that he merely helps out with his brother’s business at times. He has no knowledge about any allegations that Mr Kleinsmith had been running a private business.

[28] If an employee is sick he must inform his supervisor and he can apply for the sick leave once he returns to work. Other leave must be applied for in the prescribed manner and approved before the employee goes on leave. An employee cannot simply assume that because he asks for leave, it will be approved. Asked to comment on applicant’s message to Mr Mbolekwa on 4 November, he testified that when he looks at the message of Ms Mbolekwa it seems that she was merely acknowledging what applicant had said and that neither applicant nor Mr Mbolekwa used the word “leave” during the messages that they exchanged.

[29] It was put to him during cross-examination that his son has a pub and that during 2016 or 2017 he asked applicant and his students to do private work at his son’s pub. He explained that the pub needed a balustrade and that he spoke to the manager and the manager sent applicant and his students to make the balustrade.
[30] It is in the interest of the learners to gain practical experience. Often students would even spray cars for private companies, in order to gain experience. The materials are always supplied by the company. His son provided all the materials for the balustrade.

[31] Deon Bothma testified that he is employed by respondent as HR Manager at Northlink College at the main campus. No employee is permitted to do remunerative work outside the public service without permission. There is no record on file that applicant ever applied for permission to do remunerative work. He has no evidence that applicant has done remunerative work.

[32] He became aware of the advertisements that applicant had placed when the campus manager Mr Randall brought this to his attention. He then handed the matter over to labour relations. He did not draft the charges. He was not the initiator at applicant’s disciplinary hearing. He also did not testify at applicant’s disciplinary hearing. The principal of the college Mr Maggot would have appointed the chairperson. They have a pool of people who can act as chairpersons and the principal would appoint a chairperson from that pool.

[33] He is not aware that Mr Ackers and Mr Kleinsmith were doing private work. There are many officials in HR. If the campus manager asked HR to investigate rumours against involving Mr Ackers and Mr Kleinsmith, then another official in HR must have dealt with it. It was not him

[34] It was put to him that applicant was once charged with attempted murder when Jik was allegedly placed in the water of a lecturer and that he then asked applicant to take a polygraph test. He responded that everybody on campus close to the lecturer were interviewed by himself and others and that even cleaners, all lecturers and the program manager were all interviewed. He is not aware that applicant was ever charged for this.

[35] Asked about the postponement of 4 November and his interaction with applicant that day, he said that he was in his office when he was called by an official who said applicant was there and he wanted to speak to the deputy principal academic. He went to applicant who then said to him that he wanted leave to prepare for his disciplinary hearing. He said to applicant that he does not have authority to approve his leave and that only applicant’s campus manager can approve the leave.

[36] Applicant said that in that case he wanted to appeal to the deputy principal. He said to applicant that he cannot see her without making an appointment and that in any event leave can only be approved by his campus manager. When it was put to him that applicant asked for sick leave in the WhatsApp exchange with his manager on 4 November, he responded that applicant at no stage said to him that he is sick or that he is not mentally well, or that he wants to apply for sick leave. It was put to him that applicant never said that he wanted to apply for special leave. He denied this and was adamant that applicant did say he wanted special leave to prepare for his hearing.

[37] Neil Edgar Magott testified that he is employed by respondent as acting principal at Northlink College. What applicant had done through the advertisements he had placed, was a conflict of interests. What applicant had advertised for was in direct competition with the College. Applicant misused his position. Due to his position as lecturer at Northlink applicant gained experience and had access to resources such as learning material that he could use to compete with the college. He believes that dismissal was appropriate and that the employment relationship has broken down.


[38] He has no evidence that applicant ever received remuneration for any work he might have done in his private capacity. But the advertisements that applicant has placed makes it clear that applicant attempted to carry out a business or service in direct competition with the college.

[39] He is not aware of any business that Mr Ackers and Mr Kleinsmith was involved with. This was not communicated to him.

Evidence on behalf of applicant
[40] Anwar Allie, the applicant testified that he commenced his employment at Northlink College in February 2010. He is a qualified boilermaker (red seal artisan). He was teaching NATED theory at the Bellville South Campus until his dismissal. His line manager was Ms Mbolekwa.

[41] He admits that he was a director/member of three companies but none of these companies were created to make money. Lemon Serengeti was a non-profit company created to help a pool club. He did approach Mr Randall and asked him whether he must make any declarations about the company and Mr Randall said to him that if the company does not have an income, there is no need to declare anything. Since the company never had an income, there was therefore no need to make any declarations.
[42] In his department he is the lecturer who has been at the college the longest and he is the best in drawings in the province, but yet he never gets promoted and lecturers who arrived after him and who is weaker than him get promoted. Other lecturers also gets paid more than him. He is the lowliest paid lecturer. His workload is also unfair.

[43] He has lodged several grievances about his excessive workload, being remunerated less than other lecturers and constantly being overlooked for promotions. More recently on or about 14 September 2020 he submitted a grievance concerning amongst others his unsuccessful application for appointment to the position of Boilermaker Facilitator. He never received a response but shortly thereafter he was charged.

[44] He believes it is as a result of these grievances that he is being victimised by the college. This is why he was dismissed. Shortly after his last grievance he was charged. There had been past incidents as well where the college investigated him. One related to an incident where Jik was put into the water of another lecturer. If it was not for this alleged misconduct that they had charged and dismissed him, they would have kept on victimising him and charged him for something else.

[45] He did place the WhatsApp and Facebook messages as per Bundle A100. He placed these messages simply to assist his students at Northlink College. He was promoting the interests of Northlink by placing these messages. There was never any intention to receive remuneration for anything he would have done arising from the messages. His students know that they can contact him 24 hours a day for assistance and that he would then assist them.

[46] He first placed the Facebook message on 3 June 2020. He placed the WhatsApp message in August 2020. He had students in his class who were employed with his previous company Henred Fruehauf. His students were panicking in lockdown since they needed assistance with drawings to prepare for the exams and feared they may fail the exams. One of these students said they need help. He thinks his surname is Flux. He had all the cell phone numbers of his students and previous students on his phone. He has more than 500 phone numbers of students and former students on his phone. He then said to the student he would place a Facebook message, which he must show to his company, and that the company can then contact him to assist them on site with their drawings. He then decided to place this message so that their companies could contact him to give assistance on site.
[47] He said in the message that this was only for company students because otherwise all his students would have phoned him for assistance. He never asked the company for compensation and the company also never offered him compensation. He never received any compensation. However, the proposed assistance with trade test preparation never materialised because of the stringent COVID-19 protocols and social distancing requirements in effect at the time.

[48] He placed the second message on WhatsApp because despite his Facebook message his classes at the college were still empty after lockdown and because of Covid. Very few students attended class at the time and as the NATED exams were coming up. He wanted to get the students back in class. He knows his students. They want things cheap. The 50% discount that he referred to was added in the message because Northlink is cheaper then all other colleges. If he said it is free, then nobody would have contacted him. The “we” he refers to in the message, refers to Northlink and not to him as an individual. Students on his WhatsApp know him and they know that he is a lecturer with the Northlink. This WhatsApp post was intended to promote Northlink’s services.

[49] He also said in the message that there is no need to study at a TVET college. That is the truth. Many people do not know this and think they need to study at a college in order to qualify as welder or boilermaker. That is not correct. There are many different routes. They can for example also gain three years’ experience at a company and then obtain their red seal based on that experience. This WhatsApp status was only active for 5 hours. Only one person namely Leandre contacted him pursuant to this WhatsApp message. Their WhatsApp exchange is contained in Bundle B1 pages 5 and further. He testified that because of his WhatsApp post he influenced Leandre to register for his N2 class which shows that he promoted Northlink. He testified that he never received any gain or benefit from his WhatsApp post.

[50] He has personal knowledge of the fact that Mr Ackers and Mr Kleinsmith, both lecturers at Northlink College, have been operating a business for 10 years. He became aware of their business in 2016. He has visited their business. The business is called the South African Engineering Training Centre (SAETC) and he took a photo of the premises during about January 2021. He has Klein Smith include a copy of their company details in the Bundle. The whole college was aware of their business.

[51] Mr Randall once approached him to come and do private work with his students at the pub of Mr Randal’s son. Mr Randall wanted to pay him but he said that he must rather give the money to his students.

[52] Therefore it was inconsistent to charge and dismiss him when other staff members have been carrying on private businesses. He did mention in his disciplinary hearing that other lecturers and staff at the college are doing private work. But he did not mention their names and nobody asked him for their names either.

[53] He received a notice to attend a disciplinary hearing on 4 November 2020. The hearing was scheduled on the central campus. He went straight to the central campus from home on 4 November. He did not first report to the Belville South campus where he was based. This was not his first time in a hearing and in the past, he was told he need not report to his own campus first and that he should go straight to the hearing. He arrived at the hearing past 8:00 on 4 November. Shortly before 9: 00 when the hearing was scheduled to start he was told by a certain Leo that the hearing cannot proceed as they cannot find a chairperson and that the matter would proceed on 6 November.

[54] He had been preparing the whole night for his hearing and was not happy about the postponement. He became anxious and stressed on being advised that the case would be postponed. He advised Leo that the case was affecting him physically and mentally and that he needed time off to prepare himself. He asked to speak with Ms. Cunningham, the respondent’s Deputy Principal, to raise his concerns about the disciplinary process being delayed. Instead, Leo called Mr. Bothma who advised him that he could not see Ms. Cunningham at that particular time. He never discussed leave with Mr Botha. Only Leo was present when leave was discussed.

[55] He left the building and went to his car. While in his car and still on the campus of central office, he immediately sent the WhatsApp message to Ms Mbolekwa at 9:13 that he will not be at work on 4 and 5 November. He was physically and mentally unwell at the time and that is what he was communicating to Ms Mbolekwa. Physically he was unwell because of spasms in his neck since he could not sleep. Mentally he was unwell because of a lack of sleep over the case and the way in which he gets treated by his employer. He wanted to convey the message that he had to go and prepare for his case. Later in his evidence, he testified that through the WhatsApp message he actually applied for sick leave.
[56] Ms Mbolekwa then responded per WhatsApp that it is in order and that he can take off. After he read her response he went home. By the time he arrived home he had received many WhatsApp messages, also from his students. Although he opened the second WhatsApp message from Ms Mbolekwa that morning in which she said that Mr Pepese said he must come back to work, he did not read it at that stage. He only read it that evening after 20:00 and by then it was too late to return to work that day. During the course of the day on 4 November he was very busy as he has to take care of his elderly father. On 5 November nobody sent him a message to say he must return to work. Therefore, he never returned to work that day. He never received the WhatsApp message that Mr Pepese sent to him because he had previously blocked Mr Pepese due to the fact that Mr Pepese said it is not appropriate to contact him via WhatsApp.

[57] On 4 November his students were writing exams. Ms Mbolekwa took them to the hall to write exams. He cannot be held responsible for the fact that students were without a lecturer on 5 November. He had finished the whole syllabus with his own students three weeks previously. The only students remaining were the students of the other lecturer Mr Kobeni, who had been off sick for two weeks. Mr Randall asked him if those students can sit in his class.
[58] He returned to work on 6 November for his disciplinary hearing that had been postponed on 4 November. The initiator told him that his hearing would not be sitting that day because two new charges would be added to his charge sheet due to his absence from work on 4 and 5 November. He then left the workplace and went to see his GP and was referred to a psychiatrist who booked him off for 10 days as a result of anxiety and stress. He was given a sick certificate. This sick certificate was in respect of the period from 6 November and onwards. He handed this sick certificate to his employer. He did not have a sick certificate for 4 and 5 November but this was not required since he was only off sick for two days.

[59] He is not married and has no children. He lives with his elderly father. He must take care of his father. His father has a SASSA pension. He asks for reinstatement.

VI ARGUMENTS
[60] Both representatives filed written closing arguments. Since the arguments are recorded in writing there is no purpose in summarising it here in detail and making this award longer than it already is.


[61] On behalf of respondent it was submitted that applicant is guilty of the misconduct for which he was dismissed, that the dismissal fair, and that applicant’s claim should be dismissed. On behalf of applicant it was submitted that the applicant is not guilty of any misconduct, that the dismissal as a sanction was in any event too harsh, that the dismissal was procedurally and substantively unfair and that applicant should be reinstated.

VII DISCUSSION
[62] It is common cause that applicant was dismissed. In order for a dismissal to be fair, the LRA requires such dismissal to be effected for a fair reason and in accordance with a fair procedure. The onus is on the employer to prove the substantive and procedural fairness of the dismissal.

SUBSTANTIVE FAIRNESS
[63] In determining whether there was a fair reason for the dismissal, I am guided by item 7 of the Code of Good Conduct on Dismissals contained in Schedule 8 to the LRA (hereinafter referred to as "the Code") which requires me to consider:

(a) whether or not the employee contravened a rule regulating conduct in or of relevance to the workplace;
(b) if a rule was indeed contravened, whether or not:
(i) the rule was a valid or reasonable rule
(ii) the applicant was aware or could reasonably be expected to be aware of the rule
(iii) the rule had been consistently applied by the respondent
(iv) dismissal was an appropriate sanction for the contravention of the rule.

[64] The rules that were allegedly contravened, applicant’s awareness of the rules, and the reasonableness of the rules are not in dispute. What is in dispute is whether rules have been contravened, consistency and the appropriateness of the sanction of dismissal.

[65] There is no need for an employer to prove the guilt of an employee with absolute certainty or beyond reasonable doubt. Proof on a balance of probabilities is sufficient. In determining probabilities, evidence is assessed against human experience, logic and common sense.


GENERAL OBSERVATIONS ABOUT CREDIBILITY
[66] To the extent that there are factual disputes between applicant’s version and respondent’s version, I adopt the approach in Stellenbosch Farmers’ Winery Group Ltd v Martell in order to resolve these factual disputes. In Stellenbosch Farmers’ Winery Group Ltd v Martell it was held that a tribunal must make findings with reference to (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. The credibility of the witnesses and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the versions. Demeanour should be allowed only to reinforce a conclusion already reached by an objective assessment of the probabilities.


[67] Where reliance is placed on circumstantial evidence, the inference sought to be drawn must be consistent with all the proved facts and the inference must be the most readily apparent and acceptable inference from a number of possible inferences.

[68] I had the unique opportunity of observing all the witnesses. I was generally impressed with the evidence of respondent’s witnesses. They gave their evidence in a clear, satisfactory and consistent manner. Despite extensive cross-examination by applicant’s representative, they did not deviate from their version in material aspects. Where there were inconsistencies, they were of a minor nature and did not impact negatively on their credibility, but could be ascribed to honest and bona fide errors due to lapse of time. They never gave the impression that they embellished their evidence. The evidence of respondent’s witnesses was consistent with the probabilities and with documentary evidence.


[69] By contrast I was not that impressed with applicant’s evidence - Not with the contents of his evidence and not with the manner in which it was given. He did not impress me as a reliable and credible witnesses. Many questions were not answered directly. He often gave answers that had very little to do with the question that was being asked. At times I gained the distinct impression that he intentionally strayed away from the question that was asked and talked at length about other things in a deliberate attempt to evade answering the question that was asked, attempting to make us forget what the actual question was. His version was improbable in many aspects. The applicant’s evidence where it conflicts with that of respondent’s witnesses. I also reject applicant’s version where it is inconsistent with the probabilities and will elaborate on this regard later in this award.

Charge 1
[70] The first charge against applicant is that he committed a common law or statutory offence in that he allegedly breached the common law duty of good faith against the Department of Higher Education and Training (Northlink College) by failing to further the business interests of the employer by rendering and offering to render services in direct competition with the employer.

[71] It is now trite law that arbitrators are not permitted to take an over technical view of charges as formulated in a charge sheet. It is also trite law that employers need not prove each and every allegation made in a written charge sheet and that as long as the factual allegations made in the charge sheet or part of it, are proved, and as long as those factual allegations that have been proved, constitute some form of misconduct in the workplace, the employee should be convicted of misconduct and if sufficiently serious, dismissed. The Labour Appeal Court has even accepted that so-called “competent verdicts” need not be mentioned in a charge sheet and that an employee may be convicted of such competent verdict if the evidence has established it and if this formed a basis for the dismissal.

[72] A contract of employment is regarded as a contract of the utmost good faith. Flowing from this, an employee acts in bad faith if he acts in such a manner that a conflict of interest vis-à-vis his employer arises, for example by competing with the business of his employer.
[73] Grogan points out that such competition, or conflict of interest, even when no real competition actually results, constitute misconduct justifying dismissal. A conflict of interests occurs when an employee places himself in a position where personal interests are at odds with the interests of the employer. An employee must devote his time, energy and skills to furthering the interests of the employer’s business, and not work against the interests of his employer.

[74] In Premier Medical and Industrial Equipment (Pty) Ltd v Winkler , the Court, quoting with approval Hawkins J in Robb v Green [1895] 2 QB 1 at 10 – 11 held as follows:

'There can be no doubt that during the currency of his contract of employment the servant owes a fiduciary duty to his master which involves an obligation not to work against his master's interests. It seems to be a self-evident proposition which applies even though there is not an express term in the contract of employment to that effect. It is stated thus in the leading case of Robb v Green (1895) 2 QB 1, per Hawkins J at pp 10 - 11:

''I have a very decided opinion that, in the absence of any stipulation to the contrary, there is involved in every contract of service an implied obligation, call it by what name you will, on the servant that he shall perform his duty, especially in these essential respects, namely that he shall honestly and faithfully serve his master; that he shall not abuse his confidence in matters appertaining to his service, and that he shall, by all reasonable means in his power, protect his master's interests in respect to matters confided to him in the course of his service.'''


[75] The duty of good faith that an employee owes his employer was summarized as follows by the Supreme Court of Appeal in Ganes and another v Telecom Namibia:

“As an employee of the respondent and in the absence of an agreement to the contrary the first appellant owed the respondent a duty of good faith. This duty entailed that he was obliged not to work against the respondent's interests; not to place himself in a position where his interests conflicted with that of the respondent…”


[76] In Phillips v Fieldstone Africa (Pty) LTD the Supreme Court of Appeal made the following remarks regarding the contents and implications of the fiduciary duty of an employee or agent. It is to be noted that where the word “trust” is used, it refers to the entity or person to whom the fiduciary duty is owed, which in this case would be respondent:

“The rule is a strict one which allows little room for exceptions…It extends not only to actual conflicts of interest but also to those which are a real sensible possibility… The defences open to a fiduciary who breaches his trust are very limited: only the free consent of the principal after full disclosure will suffice…once proof of a breach of a fiduciary duty is adduced it is of no relevance that (1) the trust has suffered no loss or damage…. (2) the trust could not itself have made use of the information, opportunity… (6) the fiduciary acted honestly and reasonably


[78] The evidence against applicant is based on the two messages that applicant placed. It is not in dispute that applicant had placed these messages, and the content of the messages are also not in dispute. What is in dispute is the meaning of the words as contained in the messages and applicant’s intentions when placing the messages. Applicant testified that his choice of words was poor, but that he never intended to compete with the employer. Mr. Cato submits that although applicant’s choice and/or use of words leaves a lot to be desired, applicant should not be “punished” merely because he had chosen the incorrect words or perhaps had improperly formulated his sentences. He submits that “the only crime” applicant is guilty of in respect of in these messages, is his poor choice of words and the use thereof. I disagree.

[79] It is so that there is no evidence to suggest that applicant ever earned any remuneration or other benefits in kind arising from these messages. My finding is then also that it has not been proved on balance of probabilities that applicant has received any remuneration or other benefits. But in order to be guilty of this form of misconduct it is not a requirement that the employee must have succeeded in making money or receiving other benefits in kind. An employee can be guilty of this form of misconduct even if ultimately he did not succeed in receiving any income from his conduct.
[80] Respondent’s case against applicant in respect of the charge 1 is entirely based on circumstantial evidence arising from the words used by applicant in the two advertisements. Circumstantial evidence furnishes indirect proof and can be defined as evidence from which inferences are drawn about facts in dispute. Our courts have held that there is no principle that direct evidence is inherently more reliable than circumstantial evidence and that it is a mistaken belief that circumstantial evidence must be treated with suspicion. In order to draw an inference through inferential reasoning based on circumstantial evidence the inference sought to be drawn must be:

• consistent with all the proved facts; and
• the most readily apparent and acceptable inference from a number of possible inferences.


[81] Where more than one inference is possible on the objective proved facts the presiding officer may by balancing probabilities, select a conclusion which seems to be the more natural, or plausible, conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one and in this context 'plausible' has the connotation of 'acceptable, credible, suitable' Circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities. A parallel may be seen with circumstantial evidence and a rope comprised of several cords:

"One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion: but the whole taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of."


[82] Therefore it has been said that a number of independent pieces of circumstantial evidence, even if each taken by itself would weigh as light as a feather, could if joined together, weigh against an accused with the weight of a millstone. Our courts have also held that circumstantial evidence can depending on the circumstances even weigh stronger than direct evidence.

[83] Applicant wants me to believe that there was never a conflict of interest, that he placed these messages in order to further interests of Northlink College, which he actually acted on behalf of Northlink College and merely wanted to assist his learners and get them to come back to class. Applicant’s explanations regarding what he intended and the meaning of the words he had used in these messages, are so inherently improbable that it is actually absurd. The most plausible inference to be drawn from the words used by applicant, is that he intended to compete with his employer and knew very well that he was creating a conflict of interests which was not permitted.

[84] If applicant wanted to act in the interests of and on behalf of the College and his employer to assist students and get them to attend class again, he would have mentioned the name of Northlink College in the messages and appealed to students to come back to class again.

[85] On the one hand applicant wants me to believe that in the one advertisement he had to say that he is offering the service for free because his students want everything for free, but at the same time he wants me to believe that in the other advertisement he did not want to say that the service is for free and rather said that it is 50% cheaper otherwise his students will know something is wrong.

[86] Applicant had all the contact numbers of his students. If he wanted to assist them either by providing after hours free assistance with drawings or preparations for the exams, or wanted to get them back to class, he could simply have sent them direct WhatsApp messages in this regard.


[87] The most plausible inference to draw from the WhatsApp message, is that applicant wanted to convey the message that students need not study at TVET Colleges to qualify as welders and boiler makers, that there are other much less expensive ways to qualify (namely the service that he can provide) and that TVET colleges provide an inferior quality of training compared to the service that he can provide. The reference to 50% less than TVET clearly means that applicant wanted to make money from this.

[88] The Facebook message is clearly aimed at only attracting students who already has part time work at companies. Applicant’s explanation that he had to limit the invitation to company students, otherwise all his learners would have contacted him is not plausible. Not only would it be discriminatory to exclude other students who do not work at companies, if the service was truly for free, but it also contradicts applicant’s own evidence that he was always available 24 hours a day for his students to assist them for free.

[89] The most plausible inference to draw from the words used is that applicant wanted to attracts only students who work at companies because he could negotiate a fee with the companies to provide the service, whereas other students who have no job and study for free at the expense of the taxpayers, would have no money to pay for services.
[90] That he eventually did not succeed in making money from this advertisement, does not change his intentions and the misconduct that he had committed.

[91] I have considered the WhatsApp messages exchanged between applicant and Leandre. These messages do not affect the inferences that I have drawn, and the findings that I have made. Based on the WhatsApp exchange it became clear that this student does not work for a company, which means that she probably has no money to pay out of her own pocket to a private tutor. It would therefore have been pointless for applicant to have attempted to lure her into private classes because he would not have been able to make money from tutoring her privately. Under the circumstances, the exchange between them and the advice applicant gave to her, when it became clear that she does not work, is entirely reconcilable with the other inferences that I have drawn and the findings I have made with reference to the probabilities.

[92] When an employee places the type of advertisements that applicant has placed, he is no longer only contemplating to compete with his employer. Such advertisements already constitutes a conflict of interest because by saying these things the employee is already busy to attempt to lure students away from TVET Colleges, to the service that he can provide.
[93] Applicant’s employer was the DHET who is responsible for all TVET Colleges in the entire country. Lecturers at TVET colleges are all public servants and as such they have a duty to promote the interests of the DHET and not do anything to discourage students and prospective students from rather exploring other avenues to qualify instead of studying at TVET Colleges.

[94] Applicant clearly breached the common law duty of good faith towards DHET and Northlink College. He failed to further the business interests of DHET and Northlink by offering to render services in direct competition with his employer. As already stated, the fact that he did not actually succeed in making any money from his conduct, is not relevant in determining whether he is guilty. In the circumstances, I find that the employer correctly convicted applicant on charge 1 and his conviction on charge 1 is confirmed.

Charge 3
[95] In terms of charge 3 applicant is accused of having misused his position in DHET at Northlink to promote his personal interests or that of a registered entity, Lemon Serengeti, where he serves as a director.


[96] Applicant testified that Lemon Serengeti was registered as a nonprofit company, never had any income and was only aimed at assisting the local pool club. Respondent could not produce any evidence to the contrary. As such there was no requirement for applicant to declare this company to his employer or to ask for permission to be a director of the company. This is so because in terms of section 30 of the Public Service Act, it is only when an employee performs remunerative work outside the public service, that permission must be obtained.

[97] The essence of charge 3 is clear and that is that applicant is accused of having promoted either his own personal interests or that of his company. That applicant has at the very least promoted his own interests is clear from my findings on charge 1 because by finding that applicant made himself guilty of a conflict of interests by working against the interests of his employer and offering to render services in direct competition with his employer, this necessarily means that applicant had promoted his own interests. I am also satisfied that applicant had misused his position as a lecturer at the college, because students of Northlink were on his WhatsApp group by reason of the fact that he was a lecturer at Northlink and exchanged cell phone numbers with his students. That placed him in a position to reach his students by a message on WhatsApp.

[98] On behalf of applicant is was submitted that to convict applicant on both charges 1 and 3 would amount to a splitting of charges. Although frequently referred to as “splitting of charges”, the correct term is actually “duplication of convictions” and not “splitting of the charges.” This concept was developed in criminal law where various tests have been formulated in order to determine whether more than one charge would result in a duplication of convictions. Under the jurisprudence developed by the old Industrial Court, which was known for its adherence to the criminal procedure justice model in employment proceedings, this concept was imported into our employment law.

[99] The rationale behind the rule is easy to understand, namely that when an accused person has committed acts which ‘in substance’ amount to one offence, he could be prejudiced if he is convicted more than one for essentially the same act of misconduct. The courts and academics however acknowledge that it is not quite that easy to determine whether two or more acts “in substance” amount to the same offence and it is for this reason that tests have been formulated.


[100] There are essentially two main tests that have been formulated as “guidelines” to determine whether the rule against duplication of convictions will or have been infringed. In terms of those tests it would constitute a duplication of convictions if:

• The two acts charged separately were done with one single intent and constituted one continuous transaction; (the single intention test)
• The evidence necessary to prove the one charge necessarily involves proof of the other; (the evidence test)

[101] However, the courts have recognised that there are often cases where neither of these two tests can be applied, and that one must then apply common sense and consider all the circumstances of the accused’s conduct, including the nature of the accused’s actions and whether there was one actus reus covering the whole operation, or several acta rea.



[102] I am satisfied that the allegations in charge 3 are simply part and parcel of the misconduct alleged in charge 1. Applicant’s dominant intention was to promote his own interests and this created a conflict of interest in the form of competition with his employer. It is therefore not proper to convict applicant of separate misconduct in the form of charge 3. That applicant promoted his own interests and in the process misused his position as a lecturer at Northlink is simply part of the surrounding circumstances when one must determine an appropriate sanction on charge 1. It is in this regard that many employers often become confused. They find it difficult to distinguish between different charges, and surrounding circumstances of a charge, and then instead of simply charging the employee with one charge of misconduct and presenting surrounding circumstances as evidence in addition to the allegations in the charge sheet, they frame a completely different and second charge that in actual fact is part of the surrounding circumstances of the other charge.

[103] In the circumstances the conviction on charge 3 is therefore not confirmed.


Charge 5
[104] The allegations in charge 5 are that applicant was absent from work without reason or permission on 4 and 5 November. At common law it constitutes misconduct for an employee to be wilfully absent from work without permission from the employer.

[105] It is common cause that applicant was not at work on 5 November and that on 4 November he was at the main campus for a short while until shorty after 9 am when he left and went home and did not return to work on 4 November. I will also accept that a disciplinary hearing was scheduled for 4 November but that this was postponed. It is further common cause that the following WhatsApp messages were sent on 4 November:

Message from applicant to Mrs Mbolekwa
Good morning
My case has been postponed till Friday .. But I won't be in today and tomorrow as I have to prepare my case physically and be mentally prepared ...
This case of management against me are serious and it affects my work with the
learners.
See you on Friday after hearing. Thanks

Sent 09:13


Message from Mrs Mbolekwa to applicant

Alright Mr Allie, may all go well with vou. Your students will right in the hall. Thanks for letter me know

Sent 09:15

Message from Mrs Mbolekwa to applicant

I have informed Mr Pepese he says the leave is not approved you must come back to work

Sent 9:50
Delivered 9:50
Read 9:50

Message from Mr Pepese to applicant
Dear Mr. Allie I unfortunately did not know that your hearing is scheduled for today. Even though I understand the pressure of a hearing I am unfortunately not able to allow/grant you leave this is due to operational reasons. I therefore urge you to immediately come back to work and the failure to do so will be considered a misconduct. Thank you, Mbulelo Pepese.


[106] I accept that the message that Mr Pepese sent directly to applicant was never received by applicant. The employer could not submit any proof that this message was delivered. In fact Mr Pepese himself testified that this message was not delivered. Applicant testified that the reason for this is because he had blocked Mr Pepese on WhatsApp.

[107] Applicant testified that he only read the second message of Ms Mbolekwa that he must return to work and cannot get the day off, that evening. I reject this version as false. WhatsApp shows that applicant had read that message at 9:50 that morning. When WhatsApp shows that a message has been read at a certain time, it means that it was opened and displayed on the screen of the phone at that particular time. Applicant does not dispute this.
[108] Applicant agrees that he opened the message at 9:50 that morning but claims that he did not read it. I accept that it is possible to open a WhatsApp message and then not read it. We all know how WhatsApp works. But applicant’s version that he did not read the message when he opened it at 9:50 that morning is rejected as improbable. It is simply not plausible that he will take the trouble of opening the WhatsApp message from his line manager at 9:50 that morning and then not read it at the same time. It is a very short message. He knew that hardly 30 minutes earlier there had been an exchange between him and his line manager about him not attending work. Given the fact that he was at home on a work day and given the nature of the exchange between the two of them it is highly improbable that he would not have read this short message which he opened and which he saw was from his line manager. My finding is that applicant did read the message at 9:50 and deliberately chose to ignore it. Besides, if applicant only read the message at 20:00 on 4 November as he claims he did, then there is no explanation why he then did not return to work on 5 November. His explanation that he did not return on 5 November as he did not receive another message on 5 November makes no sense because the last message which he on his own version received from his employer on 4 November (and which he falsely claims to have read only at 20:00 on 4 November) was that he must come back to work.
[109] There was a dispute as to whether or not applicant had applied for any form of leave in the WhatsApp message he had sent to Ms Mbolekwa. Applicant testified that he in essence applied for sick leave. Looking at the words he had used in the message, this version is improbable and false. If he wanted to ask for sick leave for two days he could and would simply have said “I am sick, I am not coming in”. Instead he chose to use words which clearly means that he is taking off to prepare for his case. Applicant’s version is also not supported by the evidence of Mr Bothma. He testified that when he was called to go and speak to applicant, applicant made it clear that he wanted to take off because he wanted to prepare for his case. He was adamant that applicant made no mention of sick leave. I accept the version of Mr Bothma and reject the version of applicant as to what was said during the conversation between them. The evidence of Mr Bothma in this regard further supports the inference that applicant was not sick, did not intend to apply for sick leave but wanted to take off in order to prepare for his case. If applicant was truly sick and needed sick leave, he would not have said to Mr Bothma that he wants time off to prepare and he would then have said in the WhatsApp message that is sick. I am satisfied that the probabilities favour the finding that applicant was not sick and stayed at home only because he wanted to prepare for his case. That is then my finding on this point.
[110] I accept the evidence of Mr Randell that leave other than sick leave must be applied for in the prescribed manner and approved before the employee goes on leave, and that an employee cannot simply assume that because he asks for leave (other than sick leave) it will be approved. I also accept his evidence that only the campus manager can grant such leave. My experience is that this is in any event the standard rule in all workplaces. Because of the nature of sick leave, an employee generally only formally applies for it on his return to work. But for all other forms of leave, an employee must apply for the leave first by ensuring that the correct forms are completed, and then he must wait for it to be approved by the official who has authority to grant such leave, before the employee is permitted to take the leave and absent himself from work.

[111] Applicant never applied for special leave to prepare for his case in the prescribed manner before he left work on 4 November. More importantly applicant was never advised that his special leave was approved before he left work on 4 November. What applicant had done was simply to tell his line manager (who he is aware is not the person who can grant special leave) that he will not be coming in on 4 and 5 November. Ms Mbolekwa, who has no authority to grant this type of leave then merely acknowledged applicant’s message.

[112] I find that applicant knew very well that he cannot obtain special leave to prepare for his case in this manner and that if he wanted such leave only the campus manager can grant him such leave. However, even if I am wrong in this regard and even if there was any doubt in applicant’s mind in this regard, and even if he truly believed after the first message of Ms Mbolekwa that he had been granted such leave, that doubt was removed when applicant received and opened the second message from Ms Mbolekwa at 9:50 that Mr Pepese had said that leave is not approved and that he must come back to work.

[113] My finding is that applicant was willfully absent from work on 4 and 5 November, that he had no permission to be absent from work, that he knew that he did not have such permission, that he was not too sick to work on those two days, and never intended to apply for sick leave but merely wanted time off to prepare for his case. Applicant is therefore guilty of unauthorised absence without leave and was correctly convicted on charge 5. The conviction on charge 5 is confirmed.

Charge 4
[114] It is so that applicant was advised by Ms Mbolekwa at 9:50 on 4 November that his leave was not approved and that Mr Pepese has instructed him to come back to work. Applicant was convicted on this basis for failing to carry out a lawful instruction. In this regard too it was submitted on behalf of applicant that to convict applicant on both charges 4 and 5 would constitute splitting of charges.

[115] It is generally not necessary for employers to instruct employees to be at work before they can be convicted for absenteeism. Employees should familiarise themselves with their working hours and rosters and ensure that they are at work during working hours.

[116] The only purpose of the instruction that was communicated to applicant at 9:50 on 4 November was to make it clear to applicant that despite his message that he is taking 4 and 5 November off, his employer has not approved leave for him and that he must be at work. That message sent by Ms Mbolekwa is integral to the evidence under charge 5. The evidence about that instruction merely serves to make it clear that any doubt that there could possibly have been in applicant’s mind, had been removed by that instruction contained in the second message from Ms Mbolekwa.
[117] Furthermore the instruction could be used by the employer to argue in aggravation on sanction on charge 5 as surrounding circumstances.

[118] But to convict applicant on both charges 4 and 5 would amount to a duplication of convictions. Hence, while applicant certainly did refuse to carry out an instruction, that conduct can only be taken into account in establishing his guilt on charge 5 and in aggravation of sanction on charge 5. Accordingly I cannot confirm a separate conviction on charge 4.

PROCEDURAL FAIRNESS AND CONSISTENCY
[119] At the commencement of the proceedings, it was alleged by applicant that the dismissal was procedurally unfair for two reasons:

• There was a “splitting of charges” (duplication of convictions);
• The chairperson was biased;

[120] In the closing arguments Mr Kato only made submissions in respect of duplication of convictions. I will nevertheless also discuss the alleged bias that was raised during opening statements and during the cross-examination of Mr Robinson, the chairperson.

General comments about procedural fairness
[121] Disciplinary hearings are not criminal proceedings. In Avril Elizabeth Home for the Mentally Handicapped v CCMA the Labour Court, with reference to the intention of the LRA and the ILO standards, held that the procedural requirements for a fair dismissal as contained in Schedule 8 to the LRA represent a fundamental departure from the 'criminal justice' model of procedural fairness previously adopted by the Industrial Court and requires only that there be dialogue and an opportunity for reflection before a decision is taken to dismiss.

[122] The informal flexible approach to procedure as laid down in the Avril Elizabeth case, has been accepted and followed by the Labour Court in many decisions. Our Courts have held that provided that (1) an employee charged with misconduct knows the nature of the charges against him, (2) has the opportunity to state his case and (3) the disciplinary tribunal acts in good faith, the hearing will generally be considered to be procedurally fair.


Duplication of convictions/Splitting of charges
[123] I have already held that there was indeed duplication of convictions in respect of charges 1 and 3 and charge 4 and 5. This however does not mean that there was procedural unfairness for which the applicant should be compensated. The purpose of the rule against duplication of convictions is simply to avoid prejudice to an accused person. Over the years the criminal courts have held that the four kinds of prejudice that could be suffered by an accused as a result of a duplication of convictions are the following:

• It could result in an artificial increase in the punitive jurisdiction of a court or tribunal enabling the tribunal or court to impose sanctions far in excess of its jurisdictional limitations;
• Where compulsory minimum sentences for offences exist, duplication of convictions in respect of such offences could result in a sanction that is unfairly heavy and was never intended by the legislature;
• A heavier sanction than what would otherwise have been imposed, could be imposed simply because the presiding officer is under the impression that there are many different offences that were committed, when in actual fact the convictions are duplications of the same misconduct;

• Where the sentence of an accused person in a later case is dependant on the number of previous convictions that he has, a duplication of convictions in previous cases can prejudice him in the later case.

[124] Most of these potential forms of prejudice do not exists in employment law proceedings. The only real potential prejudice in employment law proceedings is that the tribunal may, when determining an appropriate sanction, impose a heavier sanction than what it would otherwise have imposed, simply because it is under the mistaken impression that there are so many different offences that had been committed, when in actual fact the convictions are duplications of the same misconduct. However in this regard the Courts have held that such potential prejudice could be neutralised by a tribunal by taking the duplicated convictions which form part of one transaction of misconduct, together for sentence purposes.


[125] Applicant is not being prejudiced through the duplications of convictions. This arbitration is a hearing de novo and I must determine for myself whether dismissal was an appropriate sanction. In exercising my discretion in this regard, and arriving at my finding on sanction, I am mindful that I have confirmed applicant’s guilt only in respect of charge 1 and 5 and that based on that finding I must determine an appropriate sanction. For reasons that will be discussed later in this award, I have arrived at the conclusion that despite a finding of guilt on charges 1 and 5 only, dismissal is nevertheless the appropriate sanction. Hence, even after I have removed the convictions on charges 3 and 4, I still arrive at exactly the same sanction that the employer has arrived at namely dismissal. The duplication of the convictions during the disciplinary hearing did therefore not prejudice applicant in any way and to refer to the duplications under these circumstances as procedural unfairness would be highly artificial.

Alleged bias of the chairperson
[126] Applicant claims that because of the chairperson’s involvement in past enquiries and grievances, the chairperson was biased and should have recused himself.


[127] Applicant’s first obstacle in this regard is that he was in possession of all the information that he placed before me in this arbitration which allegedly forms the basis for submitting that the chairperson was biased. Yet it is common cause that applicant never raised this issue at the disciplinary hearing and never asked the chairperson to recuse himself. It is trite law that where an objection could have been raised that a presiding officer should recuse himself because of bias, but no request for recusal is made, this precludes the person from later submitting that the presiding officer was biased. As Mr. Acting Justice Gauntlett said in Abrahams and Another v R.K. Komputer:
An attack based on bias – with its devastating legal consequences of nullity is not to be banked and drawn upon later by tactical choice. As the Court of Appeal in England has put it,

“It is not open to [the litigant] to wait and see how her claims…..turned out before pursuing her complaint of bias…[she] wanted to have the best of both worlds. The law will not allow her to do so”


[128] Hence due to the fact that applicant never raised the issue of bias at the disciplinary hearing, for this reason alone already his claim based on bias should fail.


[129] Furthermore, one must understand that not even magistrates are required to recuse themselves from cases merely because they had previously ruled against one of the parties in a previous matter. As the High Court said many years ago:
It would be perfectly impossible to conduct the administration of justice in the proper way if judges and magistrates were to be recused because at some prior time they had expressed unfavourable opinions as regards persons who subsequently come before them; that cannot be a ground for recusation.

[130] Disciplinary proceedings are even less formalistic than trials before courts of law and it is a well-established principle in our employment law that in internal disciplinary hearings, employees must be satisfied with a degree of institutional bias. The notion of institutional bias allows a person to chair a hearing even where his connection to the institution concerned might arouse a suspicion of inevitable bias, provided there is no proof that he is actually biased.

[131] Furthermore I am in any event of the view that on the facts of this case, there could not in the mind of any reasonable person have existed a reasonable apprehension of bias on the part of the chairperson.
[132] Except for the case in which applicant allegedly lodged a grievance against the chairperson, his role was of such a limited nature in grievances and investigations, that there could not possibly be any basis to argue the existence of any reasonable apprehension of bias. And in respect of the grievance which was allegedly directed against the chairperson namely that he did not do his work, his evidence is that the duties that applicant expected him to carry out, were in any event not part of his duties. I accept the evidence of the chairperson in this regard. No reasonable person could possibly think that when an employee incorrectly accuses a manager of not doing his work and it later transpires that what the employee wants to be done, do not even form part of the duties of the manager, that there would then be a reasonable apprehension of bias on the part of the manager. Hence on the facts of the case, applicant has not proved that any reasonable person would have had any reasonable apprehension of bias against the chairperson Mr Robinson.

Conclusion on procedural fairness
[133] My finding is that the dismissal was procedurally fair. Even if I were wrong in this regard, my finding is that the type of procedural fairness that was alleged namely the duplication of convictions, and the circumstances surrounding it, would in any event not be deserving of any compensation.

ALLEGED INCONSISTENCY
[134] Applicant claims that he was unfairly treated because of inconsistency in that:
• two lecturers at Northlink, Mr Ackers and Mr Kleinsmith had been carrying on a business for many years but yet they had never been disciplined;
• Mr Randell had once arranged for him and his students to do private work at his son’s pub.

[135] Consistency in employment law is simply an element of disciplinary fairness. Our Courts distinguish between historical consistency and contemporaneous consistency. Historical consistency occurs when an employer has in the past as a matter of practice not dismissed employees or imposed a specific sanction for contravention of a specific workplace rule. Contemporaneous consistency in employment law requires that like cases should in fairness be treated alike. It means that where two or more employees are guilty of the same misconduct at roughly the same time, but only one or some of them is disciplined, or where different penalties are imposed, this could be seen as unfair. However, inconsistency is not per se unfair.

[136] The circumstances in which it is perpetrated must also point to the fact that the inconsistency was induced by capaciousness or bad faith on the part of the employer. The Courts have held that if employees have committed serious misconduct, and one of them is, for improper motives, not dismissed, this would still not mean that the other miscreants should escape. An employer cannot be expected to continue repeating a wrong decision in obeisance to a principle of consistency. It has been held that the parity principle (of consistency) must be applied with caution, that each case must be treated on its own facts and circumstances, and that the principle is not intended to profit employees who commit serious acts of misconduct.

[137] My view is that the misconduct of which applicant has made himself guilty is so serious, that this is one of those cases that even if applicant were to be correct that there was inconsistency, applicant would not be able to benefit from such inconsistency and escape dismissal.

[138] However, I am in any event of the view that applicant’s reliance on inconsistency has no merit. There is no evidence to support the inference that the senior management of DHET or Northlink College ever had any form of concrete evidence that Mr Kleinsmith and Mr Ackers were competing with the business interests of Northlink and/or DHET and/or that a conflict of interests existed.

[139] The only information that they had were rumours (gossip) that these two lecturers were involved in their own private business. If applicant was in possession of all the information about their business all along, he could have given it to his employer. He chose not to do so and chose to provide such information only at arbitration. No employer can be expected to act against employees based on rumours. Neither can it be expected of employers to commence investigations based on gossip. If employers must investigate based on gossip they would not have time to focus on investigations where they have actual evidence. In respect of applicant’s misconduct there were not merely rumours and gossip of his misconduct. There was actual concrete hard evidence in the form of the messages that applicant had placed on Facebook and WhatsApp.


[140] Insofar as Mr Randall is concerned, Mr Randall explained that the work that was done at the pub of his son was done to expose the students to experience and that students would for example often even spray cars of third parties for free in order to gain experience. He testified that a third party who wants the work to be done must always provide his own materials and that in this case his son had also provided his own materials. I accept Mr Randall’s evidence in this regard. TVET colleges are not universities where students are trained in theory and philosophy and then has no practical experience when they enter the job market. A TVET college must ensure that when students obtain their qualifications, they have had a wide range of practical experience and will be able to hit the ground running when they enter the job market. In order to do that it is important for students to do practical work in the real world outside of the college. Provided that the college does not provide the materials when such work is done, there is absolutely nothing wrong with this. There is therefore no basis in the complaint in respect of Mr Randall either. He never prejudiced the college of DHET in any way. The challenge based on alleged inconsistency is therefore dismissed.


VIII SUBSTANTIVE FAIRNNESS: THE APPROPRIATE SANCTION
[141] I now turn to the appropriateness of dismissal as a sanction. In determining the appropriateness of dismissal, I adopt the approach of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC). I also take into account the CCMA Guidelines on Misconduct Arbitrations. While discipline falls within the discretion of the employer, the employer must impose an appropriate and fair sanction.
[142] Arbitrators must not merely rubber stamp sanctions imposed by employers. It is the duty of arbitrators to decide for themselves whether penalties imposed by employers are fair, without deference to the employer. Determining whether dismissal was an appropriate sanction involves an enquiry into the gravity of the contravention, the circumstances of the contravention, the nature of the job, and the mitigating factors and personal circumstances of the employee that may justify a different sanction than dismissal. In Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC) it was held that an arbitrator must determine the fairness of a dismissal as an impartial adjudicator.

[143] In judging the fairness of a dismissal, an arbitrator must ultimately apply a moral or value judgment to the established facts and circumstances of the case. This requires the arbitrator to give consideration to the position and interests of both the employer and employee in order to make a balanced and fair assessment. Arbitrators must use their sense of fairness to determine whether the employer’s decision to impose the sanction of dismissal was fair, taking into account all the relevant factors.

[144] Dismissal should be reserved for serious misconduct or repeated offences. If the misconduct is serious and makes a continued employment relationship intolerable, then dismissal is appropriate. In deciding on the appropriateness of dismissal, a consideration of the operational context of the misconduct as well as the operational implications or consequences thereof is required.

Mitigating factors and personal circumstances
[145] As mitigating factors I take into account that applicant had a long service record with applicant since 2010. He had a clean disciplinary record and was a first offender. He is a breadwinner. He is unmarried, has no children and lives with his elderly father. He takes care of his father who is a pensioner. I also take into account that there is no evidence that applicant has financially benefitted from his misconduct. Furthermore, applicant is currently 47 years old. I accept that at that age it would be difficult for him to find employment. If I could avoid a 47 year old man finding himself unemployed, I would do so. However, these mitigating factors are outweighed by the gravity of the misconduct and the lack of remorse. My decision cannot be purely based on emotions and pity or other philanthropic motives.


Gravity and nature of the misconduct
[146] Applicant’s absence from work on 4 and 5 November (charge 5) was certainly not trivial misconduct, particularly given the fact that he knew that he had to stand in to lecture the students of a colleague on 5 November. His absence harmed the reputation of the college in the eyes of students and their parents. But for absence without leave dismissal is not generally imposed as a sanction for a first offender.

[147] When it comes to charge 1 however, the situation is entirely different. This is gross and serious misconduct. Applicant was a public servant who was expected to act in the best interests of his employer the state, which in this case is the DHET and Northlink College. Instead of promoting the interests of his employer, he attempted to lure students away from TVET colleges. Even though I accept that there is no evidence that applicant has ever succeeded in luring students away and that there is no evidence that he actually derived any financial benefit from his misconduct, his intention was nevertheless to lure students away from TVET colleges and to make money out of his misconduct. I am satisfied that applicant’s misconduct in respect of charge 1 was sufficiently serious to warrant dismissal, even for a first offender particularly given applicant’s refusal to admit guilt and his persistent lies during the disciplinary hearing and this arbitration regarding his motives when placing the messages.
[148] This brings me to the issue of remorse. Applicant refuses to accept that he is guilty of any misconduct. The refusal by an employee to admit guilt and thereby show remorse for her misconduct is generally considered to be a serious aggravating factor. In this regard the Labour Appeal Court has stated in De Beers Consolidated Mines Ltd v CCMA:


"Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where…an employee… falsely denies having [committed misconduct] an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great."


[149] While applicant admits that he had placed the two messages, he stubbornly refuses to admit that he had done so with the intention to compete with the business interests of his employer and had created a conflict of interests. Instead he persisted with farfetched, absurd and false explanations about his intentions. During the disciplinary hearing he persisted with his false version that he merely chose the wrong words in placing the advertisements and that he intended to promote the interests of Northlink. He was unwilling to take the employer into his confidence and he was unwilling to take me into his confidence.
[150] Persistent false denial of wrongdoing during subsequent proceedings is generally regarded as a relevant factor that may be taken into account by arbitrators when determining an appropriate sanction. This is generally seen as an aggravating factor as it further undermines the trust relationship and increases operational risks in the workplace.

[151] While it is so that the principle of progressive and corrective discipline is part of our law, I am of the view that this was not an appropriate case to apply it. From applicant’s side there is nothing more than an aggressive denial of any wrongdoing. Instead of accepting guilt and apologising, applicant attempted to vilify his employer by falsely claiming that he was disciplined because of grievances he had lodged. I reject that version. In this regard Mr Justice Dennis Davis remarked as follows in the Labour Appeal Court case of Timothy v Nampak Corrugated Containers:

“Progressive sanctions were designed to bring the employee back into the fold, so as to ensure, by virtue of the particular sanction, that faced with the same situation again, an employee would resist the commission of the wrongdoing upon which act the sanction was imposed. The idea of a progressive sanction is to ensure that an employee can be reintegrated into the embrace of the employer's organization, in circumstances where the employment relationship can be restored to that which pertained prior to the misconduct.. where there is nothing more than an aggressive denial…it is extremely difficult to justify a progressive sanction”

[152] And in Theewaterskloof Municipality v SALGBC the Labour Court had this to say about the lack of remorse:
“For the reasons outlined above, it is my view that instead of seizing such opportunity he [the dismissed employee] has elected to hold himself on a confrontational course. There can be very little room for the notion of corrective discipline in this situation. Where an employee refuses to demonstrate any acceptance of wrongdoing, indicates no degree whatsoever of remorse, makes no move to correct what he has done, and stands firm with an attitude of opposition towards his employer, then such employee through his own conduct undercuts the applicability of corrective or progressive discipline.

The destruction of the trust relationship
[153] Respondent presented evidence that as a result of applicant’s conduct the trust relationship has been broken. It is so that there is jurisprudence in which it has been held, that as a general principle, the employer should present evidence that the trust relationship has been broken, in order to justify the sanction of dismissal. But this rule is not applicable in all cases.

[154] Where the misconduct is of such a serious nature that from itself the inference could be drawn that the trust relationship and therefore the employment relationship has been destroyed, an arbitrator may on this basis alone find that the trust relationship has been destroyed, and that dismissal is justified.
[155] I agree with respondent that the trust relationship has been broken. I am satisfied that the nature of applicant’s misconduct and the circumstances surrounding it, are so serious that this is one of those cases where it was not even necessary for the employer to present evidence that the employment relationship was destroyed and that dismissal was the most appropriate sanction. The facts speak for itself.

[156] In Miyambo v CCMA the Labour Appeal Court explained the importance of trust in the employment relationship and how any breach of trust affects the operational requirements of the employer:

It is appropriate to pause and reflect on the role that trust plays in the employment relationship. Business risk is predominantly based on the trustworthiness of company employees. The accumulation of individual breaches of trust has significant economic repercussions. A successful business enterprise operates on the basis of trust. In De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC); [2000] 9 BLLR 995 (LAC) para 22, the court, per Conradie JA, held the following regarding risk management:


'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.'


[157] I am satisfied that given the nature of the misconduct, the circumstances surrounding it, the nature of applicant’s duties, the position that applicant occupied, applicant’s false denial of guilt, his lack of true remorse, the trust relationship (and therefore the employment relationship) has been destroyed. Dismissal was a sensible operational response to risk management in the enterprise and was an appropriate sanction for applicant's misconduct. My finding is that dismissal was a fair sanction for the misconduct that applicant has committed and that the dismissal was therefore substantively fair.

AWARD
In the premises I make and publish the following order and award:

1. Applicant’s dismissal was procedurally and substantively fair.

2. Applicant’s claim is dismissed.

3. There is no order as to costs.

 D P Van Tonder
ELRC Senior Panellist