ELRC860-20/21GP
Text
ELRC860-20/21GP
Award Date:
21 July 2022
Commissioner: Livhu Nengovhela
Case No.: ELRC860-20/21GP
Date of Award: 21 July 2022
In the matter between:
VIWU obo Masemene and 4 Others
(Applicants)
And
Department of Higher Education and Training / Tshwane South TVET College
(Respondent)
Applicants’s representative: Phuti Phaka
Applicants’s address: Office 201, Second Floor
The Club Shopping Centre,
Cnr Pinaster Avenue and 18th Street
Pretoria, 0081
Telephone: 071 201 5864 / 012 765 7228
Fax 086 663 3849
Email freddy.phaka@gmail.com
Respondent’s representative: Bongani Khoza of Khoza Geffen INC
Respondent’s address: Depart of Higher Education/Tshwane South College
117 Fourth Street, Parkmore
Sandton,
Telephone: 011 784 5554/ 076 433 5370/012 843 6717
Telefax: 011 784 5547
Email: rhulani@bkinc.co.za / kwakwa.j@dhet.gov.za / thabane@tsc.edu.za/ bongani@bkinc.co.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for Arbitration between VIWU obo Masemene & 4 Others, the applicants; and the Department of Higher Education and Training / Tshwane South TVET College, the respondent. The matter was initially set down for arbitration to start from 27 May 2021, but due to various reasons the matter formally started on 14 June and took place on several days and was finally concluded on 23 May 2022.
2. The arbitration was to be held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5) (a)(ii) of the Labour Relations Act (“the LRA”). The initial part of the hearings was conducted via Zoom due to COVID-19 regulations. The latter part of the hearings took place at the facility Tshwane South TVET College HQ to overcome challenges of load shedding. The proceedings were digitally recorded.
3. The applicants attended the hearing and they were initially represented by Mr Thabani Zondo, an official from Vision Integrated Workers Union (VIWU). However, from around 25 March 2022, the applicants were represented by Mr Phuka Phaka, an attorney from Phuthi Phaka Attorneys; Advocate David Mtsweni and Advocate Simon Seforanyane Maelane.
4. The respondent was also present and was represented by Mr Bongani Khoza and Mr Thandolethu Mabuza, attorneys from Khoza Geffen INC.
5. Before the start of the arbitration process, the applicants submitted a bundle of documents that were later marked as bundle” A” and the respondent also submitted theirs that was later marked bundle “R”.
6. Since the parties were represented by experienced officials and legal representatives, I informed than I would adopt an adversarial approach during the arbitration proceedings instead of being inquisitorial. I however reminded the particularly the applicants to put their version when the respondent’s witness was under cross examination.
7. The parties agreed to file their closing arguments closing arguments by end of working day of Friday 24 June 2022. The Respondent’s closing arguments were received on 13 June 2022, and I received the one of the applicants on 09 July 2022. The submissions of both parties were carefully considered, but will not be repeated here, as the contents basically mirror what was put to parties during the leading of evidence and cross-examination in the arbitration hearing itself.
PRELIMINARY ISSUES
8. Before the start of the arbitration process on 1 July 2021, the representative of the respondent indicated that he submitted an objection for the continued reprepresentation of the applicants by Vision Integrated Workers Union (VIWU) since the union was not recognised by the Education Labour Relations Council (ERLC). It was the wish of the respondents to have VIWU to be removed from the hearing with immediate effect and proceed with the arbitration hearing without VIWU. The applicants challenged this with a verbal submission.
9. In the light of the written submissions already made by the respondents and the verbal submission made by the applicants. All the parties agreed that this matter should be decided on papers. It was agreed that each party shall have five (5) days starting with the applicants having until Tuesday 06 July 2021 to submit their written arguments.
I subsequently made a written ruling dismissing the application by the respondent objecting to trade union representation and granted the right to the applicants to have union representation.
BACKGROUND TO THE DISPUTE
10. The Applicants, Masemene KJ, Mashangwane KE, Masombuka PJ, Netshitungulu AE and Mpela F were former employees of the respondent. They were employed as lecturers at the Atteridgeville campus of the Tshwane South TVET College and were responsible for the computer based studies. The applicants were dismissed by the respondent after a disciplinary hearing that they did not participate in.
11. The applicants were charged by the respondent with Four (4) allegations of misconduct. The allegations were couched as follows:
11.1. Charge1: Causing Prejudice to the college
It is alleged that during the period 14 March 2018 to 19 March 2018, they caused prejudice to the administration and efficiency of the Tshwane South TVET College in that, they connived with other lecturers by deliberately failing to administer assessment task 2: Formal Test 1as per the General Studies Assessment Schedule 2018, First Semester.
11.2. Charge 2: Gross Dishonesty
It is alleged that on or about 19 March 2018 they committed an act of gross dishonesty when they attached their signatures to a memorandum addressed to the Head of Department Business Studies thereby bringing management under the impression that Task2:Tormal Test 1 had to be rescheduled due to lack of ink cartridges in Atteridgeville campus whilst the reason furnished was false.
11.3. Charge 3 Gross Dishonesty
It is alleged that on or about 12 April 2018 they committed an act of gross dishonesty when they, in a meeting with management deliberately misled management by informing the management team that they attempted to obtain ink cartridges from Mr A Malatji in order to administer Task 2: Formal Test 1, whilst no such attempt was made.
11.4. Charge 4: Failure to comply with College Policy
It is alleged that during the period 14 March to 12 April 201, they contravened or failed to comply with item 10 of program 191 assessment policy in that they without permission or authorisation postponed the assessment task 2 formal test 1and caused Tshwane South TVET College common assessment to be administered on different dates and times.
12. After narrowing the issues, the parties agreed that dismissal was not in dispute. The applicant challenged the fairness of the dismissal in regard with:
12.1. The disciplinary proceedings were not conducted in accordance with the respondent disciplinary code and procedures in that it was not chaired by an employee of the respondent.
12.2. The respondent failed to act consistently in that two other employees, who could not administer assessments were not charged and later dismissed.
12.3. The applicants disputed the fairness claiming that they were not in breach of respondent rules (substantive fairness).
13. They subsequently referred the matter to the ELRC on 07 April 2018 on the basis of Section 191 (1)(a)(i) of the Act. The dispute was set down for Conciliation on the 05 November 2020 and the dispute remained unresolved at the end of the Conciliation process on the same date. The Commissioner subsequently issued a certificate of non-resolution of the dispute. The matter was set-down for arbitration before me on the 27 May 2021.
14. Prior to commencement of the arbitration, the Applicants submitted a bundle of documents which was marked bundle A. The respondent also submitted two bundle of documents which were subsequently marked bundle R1 and R2. The documents were agreed to by the parties to be what they purported to be, and it was agreed that the contents would be dealt with by the witnesses during the hearing.
15. The Applicants challenged the procedural and substantive fairness of their dismissal.
JURISDICTION
16. No jurisdictional challenge was raised and because it was common cause that there had been a dismissal based on misconduct in the education sector. I find that the ELRC had jurisdiction to arbitrate in the matter.
ISSUE TO BE DECIDED
17. I am to determine whether 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.
APPROACH TAKEN DURING THE ARBITRATION PROCESS
18. Due to the huge experience and exposure to CCMA proceedings by both parties, I informed the parties that I would adopt an adversarial approach during the arbitration proceedings.
19. As it is only required that an award with brief reasons be issued, following is a summary of the relevant evidence tendered under oath:
RESPONDENT’S CASE
Mr Trevor Fredericks
20. Mr. Trevor Fredericks took oath and indicated that he was the labour relations consultant for the respondent. He started working for the respondent since 2011. He was asked by the principal of the college to investigate the matter when management received an email from Mr. Marcus Buda informing them that computer tests have been delayed due to shortage of cartridges.
21. Buda is the head of department (HOD) of business studies and the applicants report to him (A35-36). The witness was concerned that this matter was only reported on 11 April 2018 whereas the lecturers failed to administer the tests for the period 14 to 19 March 2018.
22. This failure to administer test for Computer related courses was a concern to management. Buda, the HOD of the applicants was charged and dismissed in February 2018 by the respondent for making sweeping statements regarding the lack of study material while the management was gallivanting with the SRC. At the time of this incident, Buda had lodged an appeal the Minister of Higher Education and Training and was still awaiting that outcome. On 14 March, Buda’s five (5) immediate subordinates (applicants) including his brother SM Buda, who is also a lecturer, made this claim that ink cartridges were lacking for them to administer an exam. This claim was made by the applicants two weeks after Buda’s appeal to give credence to his appeal.
23. The respondent viewed this failure by the applicants to administer examination by computer science students in a serious light. Programme 191 Assessment Policy requires conformance with this policy to be addressed with the deputy principal academic (R70 item 22). This was not done by any of the lecturer. The applicants were therefore not authorised to postpone the assessments.
24. The general studies assessment schedule for first semester (A25-27) was for the period 14 to 20 March 2018. It is a formal assessment; test 1 and test 2 gives 100% of the total mark (R66). The test is also a common assessment for all the campuses including main campus, Odi and Centurion. This means all students at all the campuses write at the same time at their respective venues.
25. After receiving the memo from Buda on 11 April 2018 informing the academic unit that the computer test series have been delayed due to shortage of cartridges, Ms Ntsimane, Ms Mathye and Mr Madumo visited the campus to interview different stakeholders and later generated a report on pages R48-54. Mr. Yende, the campus manager, who had already indicated via email that he was not aware about the delayed exams, was also in attendance.
26. This team interviewed the applicants and Mr Malatji, the store manager. During the cause of this meeting, this team requested Mr Madumo to go and count the 80A cartridges that were available at that time at the stores. Madumo came back and informed them there were 27 cartridges available at that moment.
27. Malatjie informed the team that there was no lecturer that approached him for the cartridges during that period and indicated that there were cartridges all the time.
28. After enquiring from the applicants individually why they did not conduct the assessment on the scheduled dates. The applicants responded with similarly drafted letters (R56-59) stating that the reason for their failure to administer exams was lack of ink cartridges.
29. The applicants failed to administer their Test 1 exam as follows:
29.1. Masemene: 14 & 19 March 2018
29.2. Mashangwane: 15 March 2018
29.3. Masombuka: 15 & 19 March 2018
29.4. Netshitungulu: 15 March 2018
29.5. Mpela: 16 & 18 March 2018
30. On R46 & 47 is a two pager control sheet reflecting which lecturer collected the required 80A Cartridge on which day and quantity collected. The sheets show that cartridges were collected by a number of lecturers on several days between 30 January2018 and 24 April 2018. Mashangwane collected a cartridge on 14 March 2018, Ramahllerwa on 19 March 2018 and Buda EO on 10 April 2018.
31. In regard with the complaint that Ramahlalerwa should have been disciplined also, the witness indicated that Ramahlalerwa had a clash on 16 March 2018, the clash was from the NCV time table and he requested permission in advance from the deputy principal academic that was granted.
32. The witness further indicated that he could only do investigation when there was information provided. When the applicants were charge, they later established that Buda EO and Ramahlalerwa had also made postponements on their exams. After investigating, it was established that Ramahlalerwa had permission and there was no allegation of misconduct against him. However, Buda EO had no permission and his reason was that there were no cartridges. That was why Buda was later charged with misconduct found guilty and later dismissed.
Ms Nomsa Mathye
33. Ms Nomsa Mathye took oath and stated that she was the head of schools and general studies of the Tshwane South TVET College since 2016. She has served the college for more than 21 years. She served as the college head of moderation since she was responsible for the college’ curriculum development, and maintenance of academic standards.
34. She was the one who drafted the assessment schedule for general studies (R 38-41). The assessment schedule must be complied with across the whole college in all campuses. The rescheduling of the exams affects the credibility and integrity of the college and should not be taken lightly.
35. The witness became aware about this incident when she received an email from Buda and the memo from the applicants (R43) when she was copied the letter by Buda to Ms Ntsimane (deputy principal academic) on 11 April 2018. That was when she became aware that the applicants did not administer computer studies exam at Atteridgeville campus.
36. The following day Ms Mathye, Mr Madumo, Mr Yende and the witness went Atteridgeville on fact finding mission to establish the extant and reason of not writing computer studies exams. The applicants admitted that various computer related subjects that they were lecturing that should have been written between 14 and 19 March 2018 were postponed due to the unavailability of ink cartridges.
37. The witness was a scriber at this meeting and she was the one who generated the report on R 48 – 53. The meeting received a verbal report from Malatji who indicated that cartridges were available at all time and he was never approached by the applicants regarding cartridges. Madumo was also sent during the meeting to go and count the available cartridges. Madumo came back and indicated to them that there were 27 Cartridges were still available at that time.
38. Ramahlalerwa did not administer her exams scheduled on 16 March 2018 since there was a clash with the NCV program. He was granted permission by the deputy principal academic in this regard. Further to this, Ramahlalerwa did not claim that there were no ink cartridges like what the applicants did.
39. The witness did not know that Ms S Matlala did not administer her exams as scheduled. It was for the first time she was hearing this claim against Matlala and therefore needed to be investigated and those claiming that Matlala shoud be disciplined should bring facts in this regard.
40. The failure to administer the exams on the scheduled date the way it was done by the applicants has huge negative impact to the college. The students come to the college prepared to write and they are told they could not write. New dates need to be set within a short period of time and this affect both the students and the college negatively. New examination papers need to be set and requires more resources.
41. The applicants could have saved the work in the memory sticks until the cartridges were available to print. They could have borrowed from other lectures or even from other campuses. The deputy principal academic makes decision in regard with non-conformance with the assessment policy. If they had informed the deputy principal, interventions would have been made. The campus manager and deputy campus manager were also not informed.
Ms Gina Khoza
42. Ms Gina Khoza took oath and stated that she was senior lecturer in general studies and data. The applicants reported to her and she in turn reported to Buda, who was the HOD. She was not aware that the applicants did not administer their exams until Buda informed her about it.
43. She was never approached that there were no cartridges and they did not report to her that they were not able to print.
44. She was of the view that cartridges were there since she was able to administer her exams during the period 14 to 20 March 2018. The applicants did not want to administer the exams because they were in support of Buda’s case.
Mr Thabane Tebogo
45. Mr Thabane Tebogo took oath and indicated that he was the Assistant Director at Tshwane South TVET College. He reported to the principal and he was involved in the appointment of the chairperson of the internal disciplinary hearing. He submitted five names to the principal who selected Ms Daphne Lubisi from the list. Lubisi was employed by the respondent at legal services and she resigned from the respondent in January 2019 and the hearing had started in June 2018 already.
46. Lubisi continued to chair the disciplinary hearing after her resignation since she could not have left the matter part heard.
Mr Tshilidzi Libago
47. Mr Tshilidzi Libago took oath and stated that he was an Information technology specialist and he worked in the industry for more than fourteen years. He was currently placed at the centurion campus of the respondent. He has worked with printers and cartridges and has a good understanding how they work.
48. Cartridges get depleted depending on the volume of the print done, the temperature of each printer and gaps between printing.
Mr. Goodman Dumisani Mnisi
49. Mr Goodman Mnisi took oath and stated that he was the deputy principal registry with the collage. He was the head of procurement at the time of the incident. Procurement was centralised through his office at head office. Campuses provided motivation for goods and services and his office would obtain three quotations from existing suppliers in the database.
50. The request for amongst others 50x 80A cartridges for Atteridgeville campus was made on 17 October 2017 (R102). The purpose of the cartridges was for the NCV and report 191 students’ examination and also for January 2018 registration period. The submission was approved by the principal on 16 January 2018 (R105) and delivery of 80A cartridges was made as follows:
50.1. 02 November 2017 (R112) : x 25
50.2. 23 January 2018 (R106) : x 25
50.3. 14 June 2018 (R113) : x 30
51. Therefore, for the period November 2017 until June 2018 there were 80 cartridges delivered at Atteridgeville campus.
52. In R46 16 cartridges were issued and on R47 17 Cartridges were issued totalling 32 cartridges for the period 30 January 2018 to 24 April 2018. This meant that there were 17 cartridges remaining and there were cartridges when the applicants did not administer the exams for the period 3 to 19 March 2018.
53. The third and second last dates on page R46 were not proper dates and it was clear human error, but did not affect the total calculations.
54. The cartridges were there during the period the applicants claimed that they could not administer exams due to lack of cartridges. Stock levels are checked all the time by the storeman. If the cartridges were finished, the applicants could have escalated the matter and the witness could have borrowed from other sister campuses or procured through a speedy process. Postponement of exams was not an option.
Adv. Joseph Chiloane
55. Adv. Joseph Chiloane took oath and stated that he was the principal and chief accounting officer of the collage. He was the one who levelled the allegations of misconduct against the applicants. He charged the applicants after receiving two reports. The first one was the report that was generated by the academic unit which required an explanation from the applicants why the exams where postponed.
56. The second investigation was conducted by Frederick to confirm if there was misconduct by applicants.
57. The Chiloane approved the purchase of 50 A80 cartridges that were later delivered at Atteridgeville campus as per the request by the campus manager.
58. The witness went through the exercise of calculating the number of cartridges delivered and issued and concluded that there were about 17 cartridges available throughout end January to end April 2018.
59. The cartridges were available when the applicants made a claim that they were finished. They did this in support of their HOD, Buda who was dismissed but was still awaiting his appeal.
60. Buda had sent an email to City Press newspaper and indicated that the college mismanaged funds and did not prioritise teaching and learning (R179-184). The emails by Buda to the newspaper amounted to gross misrepresentation and he was dismissed. The applicants were trying to showing support to their HOD claiming that the cartridges were finished whereas they were still there.
61. The store register clearly showed that Mashangwane collected a cartridge on 14 March, the day he was supposed to administered an exam (R47). Ramahlalerwa collected cartridges on 19 March 2018, the day the applicants were writing a memo claiming that there were no cartridges.
62. Further to this there were other people who collected cartridges during that period. If the cartridges were truly finished, they could have brought others from sister campuses or deviated from procurement process to urgently make a purchase other than postpone the exams.
63. The conduct of the applicants amounted to a sabotage. He did not trust them anymore due to their conduct.
THE APPLICANTS’S CASE
Ms Kgago Mashangwane
64. Ms Kgabo Mashangwane took oath and stated that she was employed by the college as a lecturer offering Entrepreneurship Business Management (N4 & N6) and Introduction to Information Processing (N4). On 14 March she was supposed to administer assessment for Information Processing. She went to the storeman, Mr Malatji a day before on 13 March and he informed her that she should came back the following day since he had run out of cartridges. She came back the following day and Malatji confirmed that he had no cartridges.
65. The witness and her colleagues had been going to the HOD on daily basis from 14 March until he told them to do it in writing 19 March 2018. That was when she appended her signature on the memo to the HOD dated 19 March 2018 (A17).
66. The witness actually took a cartridge on 01/03/2018 and not 14/03/2018. The 014/03/2018 entered on the second row of A24 should actually be read as 1st March 2018. She did not put the number “4” when she entered the date to collect the cartridge.
67. The cartridges she collected on 01 March was depleted before 14 March since she made first year students print daily.
68. After Malatji had informed her that there were no cartridges, he advised her that she should approach Makgobane for a partially used cartridge. She then went to Makgobane who handed her the partially used cartridge which she used to administer the assessment. During the assessment the cartridge got depleted and she asked the students to save the work and that would be printed on some other day. This was after she had informed the HOD that there were no cartridges anymore. The students were called back the following day on 15 March and printed the assessment. She informed Masombuka, about the unavailability of cartridges when the HOD told her that he could do nothing about it.
69. The witness together with the other four applicants, appeared before the academic unit which was investigating the matter on 12 Aril 2018. According to the report, Malatji indicated that the cartridges were available at all the time including the period 14-19 March2018 when the applicants indicated that there were no cartridges. She also confirmed that on R 57 was her signature responding to the respondent Audi letter.
Mr Joseph Masumbuka
70. Ms Joseph Masumbuka took oath and stated that he was employed by the college as a lecturer offering Introduction to Computer Practice (N4) and Information Processing (N4 and N5). He started working for the college since 22 February 2013. He delivered the three modules and was also responsible for their assessments.
71. He was supposed to have administered the assessment for his modules o 15, 16, and 19 March. The applicant managed to administer assessment 15 March, but could not on 16 and 19 since he had no cartridges. He went to Malatije who told him that there were no cartridges. He reported the matter to the HOD who informed him that he should administer when the cartridges become available.
72. The students came on 19 March for an assessment. He went to various labs and there were no cartridges. He approached another colleague, Ramhlalerwa who also could not administer sometimes during the week. He used the cartridge from Ramahlalerwa to administer on 19 March. He had no idea where Ramahlalerwa found the cartridge on 19 March.
73. When the school reopened, Malatji told him the cartridges were there, he went to collect and administered the exams on12 April 2018.
74. The witness did not know where the cartridges came from in April when they came back from recess. Malatije just called him and told him that the cartridges were available. He however acknowledged that the respondent was indicating that the next delivery was on 14 June 2018 (R113).
75. The applicant did not attend the disciplinary hearing since the chairperson was not an employee of the respondent.
Ms Johanna Masemene
76. Ms Johanna Masemene took oath and stated that she was employed by the college as a lecturer offering Computer Practice (N4) and Information Processing (N5 & N6). She started working for the college since January 2013. Her cartridge got finished some three or four days before the assessment period. She went to the storeman, Mr Malatji on 13 March and he informed her that he had run out of cartridges.
77. The witness went to report the matter to the HOD who told her that nothing could be done, she should wait for the cartridges. She however managed to administer on 19 March after she got the cartridge from Ramahlalelwa. Malatji did not have cartridges even on 19 March 2018.
78. She denies the charges against her and further indicated inconsistency in that Ramahlalerwa and Ms Matlala failed to administer their exams and non were never disciplined. Mahlalerwa was not disciplined she he was given permission by the deputy principal academic since there was a clash. The respondent did not know about the complaint in regard with Matlala. If applicants have more details about Matlala’s transgressions, they must be submitted to the respondent for investigation for further investigation.
Mr Avheani Netshitungulu
79. Mr Avheani Netshitungulu took oath and stated that he was employed by the college as a lecturer offering Computerised Financial Systems (N5 and N6). He was employed since August 2011.
80. He was supposed to have administered the assessment for both modules on 15 March 2018, but could not since he had no cartridges. He went to Malatije who told him that there were no cartridges. He reported the matter to the HOD who informed him that he should administer his modules when the cartridges become available.
81. He denied all the charges against him.
Mr Vusile Mpela
82. Mr Vusile Mpela took oath and stated that he was employed by the college as a lecturer offering Computerised Financial Systems (N4 and N5) and Income Tax. He was employed since 23 January 2015. He shared the lab with Netshitungulu and Masemene.
83. He was supposed to have administered the assessment for both modules on 15 and 16 March 2018, but could not since he had no cartridges. He went to a day before on 14 March to collect the cartridges from Malatji who told him that there were no cartridges. He reported the matter to the HOD who informed him that he should administer his modules when the cartridges become available.
84. He did not doubt Mr Malatji when he told him there were no cartridges on the 14 and again on 16 March 2018. He signed the memo dated 19 March on R43 since all the applicants had similar problems.
85. He denied all the charges against him.
86.
SUBMISSION OF CLOSING ARGUMENTS
87. Both parties submitted written closing argument. The submissions of both parties were carefully considered, but will not be repeated here, as the contents basically mirror what was put to parties during the leading of evidence and cross-examination in the arbitration hearing itself.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
88. In this matter, the respondent dismissed the five applicants on the basis that it viewed them as having been guilty of the following charges:
88.1. Charge 1: Causing prejudice to the college in that during the period 14 March to 19 March 2018 they connived with each other by deliberately failing to administer assessment task two formal test one.
88.2. Charge 2: Gross dishonesty in that on or about 19th March you committed an act of gross dishonesty when they appended their signatures to a memorandum addressed to the Head of Business Studies thereby bringing management under the impression that formal test 1 had to be rescheduled due to a lack of ink cartridges at Atteridgeville campus whilst the reason furnished were false.
88.3. Charge 3: Gross dishonesty in that on around 12 April 2018 they deliberately misled management by informing management team that they had attempted to obtain ink cartridges from Mr A Malatji, whilst no such attempt was made.
88.4. Charge 4: Failure to comply with college policy in that for the period 14 March to 12 April 2018 they contravened or failed to comply with item 10 of the Programme 191 Assessment Policy in that they
88.4.1. Without permission or authorisation postponed the Assessment Task 2 Formal Test 1.
88.4.2. Caused Tshwane South TVET College common assessment to be administered on different dates and times.
89. The respondent sought to discharge the onus of proving that the dismissal was substantively and procedurally fair, through the evidence of eight witnesses that appeared in the hearing.
90. At the commencement of the hearing, the issues in dispute were narrowed down. The applicants were challenging the procedural and substantive fairness of their dismissal. The third challenge was that the respondent failed to act consistently in that two other employees who failed to administer assessment in line with the assessment timetable were never charged and later dismissed.
Consistency
91. The applicants argued that the respondent failed to apply the rule(s) that they were charged with consistently in that two other employees who did not administer assessment in line with assessment time table. The other employees are Mr Ramahlalerwa and Ms Matlala failed to administer assessment in terms of the assessment timetable.
92. Both Fredericks and Chiloane testified that during the early part of the internal investigation. At that time the respondent had been accused of not charging Mahlalerwa and Buda EO. Fredricks went back and investigated the matter and established that Mahlalerwa did not transgress any of the respondent’s policies since he obtained permission from the deputy principal. The reason permission was granted was that Mhlalerwa approach the deputy principal in advance, the reason for his request was that there was a clash with another NCV module.
93. This investigation however found that Buda EO needed to be charged with all other five applicants. He was later charged found guilty and subsequently dismissed. In regard with Matlala they were hearing the matter for the first time in this arbitration. If the applicants come with evidence, they were willing to investigate the matter.
94. According to the evidence tender, I am not convinced that the parity principle issue arises in this matter.
Procedural fairness
95. The respondent’s disciplinary code is a collective agreement entered into between the parties. It is entered into under the auspices of the Public Service Coordinating Bargaining Council (PSCBC) as Resolution 1 of 2003 (A 1-12).
96. The applicants argued that Clause 7.3(b) of the collective agreement provides that:
“b. the chair of the hearing must be appointed by the employer and be an employee on higher grade than the representative of the employee”
97. Ms Lebese, the chairperson of the hearing, was an employee when he was appointed to chair the hearing. She however resigned early in 2019 before the hearing was finalised.
98. The applicants were of the view Lebese lost her locus standi to preside over this disciplinary immediately on her resigned.
99. It is my view that since the chairperson only resigned after she had started hearing the matter it was going to be another waste of time to start the second appointment process of a chairperson. At the time of appointment, Lebese was still an employee of the respondent. I also cannot see the prejudice that the applicants had suffered by the chairperson continuing to chair the hearing. It is therefore my finding that the dismissal of the applicants was procedurally fair.
Substantive fairness
100. In terms of section 185 of the Labour Relations Act, 1995 as amended (“the Act / the LRA”) every employee has the right not to be unfairly dismissed. Section 192 of the Act provides that the employee carries the onus of proving the existence of a dismissal, whilst the employer has to proof that the dismissal was fair. In the present case it was common cause that the applicants were dismissed on 11 July 2020.
101. In determining the fairness of the applicant’s dismissal, I am to be guided by the Code of Good Practice: Dismissal in Schedule 8 of the LRA and the CCMA Guidelines on Misconduct Arbitrations.
102. According to Item 7 of the Code and the CCMA guidelines on Misconduct Arbitration, the first consideration regarding the substantive fairness of a dismissal requires a factual determination as to whether the employee actually contravened a rule or standard regulating conduct in the workplace.
103. Thereafter consideration should be made as to: Was there a valid or reasonable rule, was the rule known to the applicants or could she reasonably be expected to know it and was the rule consistently applied. The allegation against the applicants have already been summarised earlier on in this award.
104. The respondent testified that there was a valid rule that the applicants was reasonably expected to have known it. The four charges of misconduct levelled against the applicants where in respect of causes 6 and 7 read together with annexure A of the respondent’s disciplinary code and procedure for the public service as contained in Resolution 1of 2003. The charges being (1) causing prejudice to the College, (2) Gross Dishonesty, and (3) failure to comply with college policy.
105. The applicants were all levelled with the same allegations of misconduct. The difference in the main would be the dates that they failed to administer the assessment in regard with charge 3. Secondly, the explanation of events by all applicants were similar but not necessarily the same. I will therefore not detail the circumstances around each of the five applicants unless that has direct link to the findings.
106. The witnesses who testified on behalf of the Respondent were Mr Trevor Fredericks, Ms Nomsa Mathye, Mr Tebogo Thabane, Mr Sydney Libago, Mr Goodman Mnisi and Adv. Joseph Chiloane. All the five applicants testified on their own behalf.
107. The witnesses of the respondent were all extremely compelling. They testified in great detail, and, especially when explaining how the assessments were postponed without approval. Both Khoza and Mthye were emphatic on this issue and their demeanour reflected great disappointment with what the applicants had done.
108. Both Mnisi and Frediricks were quite emphantic on the issues of of lack of cartridges particularly regarding that there was at no stage were cartridges were not there. The long delay in reporting the matter, the failure to report to any other person else beyond Buda was a concern to these witness. Particularly failure to notify Yende since the problem could have been resolve.
109. While Chiloane testified on all the issues there was corroboration between the witnesses and also the documents – emails, reports, letters, policies, delivery notes and store registers. I have no reason at all to doubt the evidence of any of the employer’s witnesses. Their versions were credible and factual with no signs of any “tailoring” evident at all. Most importantly, their versions were corroborated in every respect by each other.
110. I did not think that the applicants were good witnesses. Their defence rested solely on a blatant denial of any guilt at all. The applicant’s first witness, Mashangwana, while being examined by Zondo, indicated that she collected the cartridges on 1 March 2018 and not 14 March 2018. The entry made on the register was clearly 14 March entered as 014 / 03/18. She claimed that the 4 was inserted by someone else.
111. Few days later when she was being examined by Maelane, she indicated that it was not her that made that entry and she did not collect on 14 March or 01 March. 37. The reason for this lack of a consistent version was that she should have administer an assessment on 14 March and she did not. The reason she advanced was that the reason was that there were no cartridges.
112. Despite that cartridges were being collected on 01; 14 and 19 March. Collection continued on 03; 10; 11; April. The applicant continue to deny that there were cartridges.
I will now deal with each charge and my findings.
113. Charge 2: Gross dishonesty in that on or about 19th March they committed an act of gross dishonesty when they appended their signatures to a memorandum addressed to the Head of Business Studies thereby bringing management under the impression that formal test 1 had to be rescheduled due to a lack of ink cartridges at Atteridgeville campus whilst the reason furnished were false.
114. The complaint by the respondent in regard with this charge is that all the applicants signed this memorandum in R43 dated 19 March 201, informing their HOD that the subject test 2 assessment was delayed due to lack of cartridges. On receipt of this memo that was ultimately delivered senior management of the college by the HOD on 11April 2018. The academic unit immediately conducted an investigation on 12 April 2018, the following day, to go to Atteridgeville to try and confirm the complaint.
115. The outcome of this investigation is found in the report dated 18 April 2018 on R 48-54 and its salient points are:
115.1. The academic unit was concerned that whereas the exams were delay during the period 14 – 19 March 2018, they were only informed via email on 11 April 2018
115.2. Yende, the campus manager was not informed about this postponement.
115.3. The applicants were interviewed by the academic unit and they confirmed that the postponed assessment for computer subjects that were scheduled for 14 to 19 March 2018was according to academic calendar of the college.
115.4. The applicants informed the academic unit that cartridges started to be finished from the week of 7 March 2018
115.5. Malatji promised them cartridges but he never delivered.
115.6. Mpela indicated that there was time where students wrote the task and they could not print but saved the student work on the computers and printed on some other time.
115.7. They started receiving cartridges from Malatji from 11 April 2018.
115.8. Malatji informed the academic unit that there was no stage where there was a shortage of cartridges and none of the lecturers concerned came to him to request cartridges.
115.9. Madumo was asked, during the cause of the investigation to go to the storeroom and check how many cartridges were in stock and he found 27 cartridges.
116. The other investigation was done by Fredericks which led to the individual applicant responding to the Audi letters (R 54 -59). This lead to charges with allegations of misconduct against the applicants.
117. The evidence by the respondent that there were cartridges on campus is overwhelming. Madumo confirmed that that there were 27 A80 cartridges after a quick stock count on 12 April 2018. Through various calculations with Mnisi and Chiloane the respondent showed that cartridges issued in R 46-47 subtracted from the 80 delivered (R102, 106-108,112) there were around 17 cartridges available at the time the applicants were postponing the exams due to lack of cartridges. Cartridges where also being collected from the stores on 1,14 and 19 March 2022. Malatji told the academic unit that there was no shortage of cartridges.
118. It is my finding that that there were cartridges during this period and there the applicants are guilty of this misconduct.
119. Charge 1: Causing prejudice to the college in that during the period 14 March to 19 March 2018 they connived with each other by deliberately failing to administer assessment task two formal test one.
120. Chiloane testified explaining the status of Buda, the HOD that he was already dismissed by the college and they were only awaiting his appeal with the Minister of Higher Education and Training. The reason of his dismissal was that he was found guilty for spreading wrong information out the college through City Press newspaper. Buda’s appeal to the Minister and the failure of six (6) of his staff members to administer assessment happened few weeks apart.
121. Only Buda, the HOD knew about the lack of cartridges before the assessment, allowed them to postpone whereas he had no powers to do so in terms of assessment policy. In fact, according to Masemene at the meeting with the academic unit, cartridges started not be available from 7 March 2018. Neither Buda, or any of his six (6) lecturers drops an email or make a phone call to the campus manager (Yende), the then procurement manager (Mnisi), and or the deputy principal academic (Ntsimane).
122. Even Gina Khoza, senior lecturer in general studies, testified that she was not informed about lack of cartridges by Buda or any of the six lecturers that claimed that there were no cartridges. Buda only informed her around the 19 March. It appears it was only they few people who needed to know so that the assessments were postponed first. I find the version most probable and the applicants did not come with any other version except to deny.
123. It therefore my finding that applicants were conniving in this regard.
124. Charge 3: Gross dishonesty in that on around 12 April 2018 they deliberately misled management by informing management team that they had attempted to obtain ink cartridges from Mr A Malatji, whilst no such attempt was made.
125. The respondent did not bring in Malatji to testify in this regard. The applicants had indicated, as early as on 12 April 2018 indicated that it was Malatji who told them that there were no cartridges at the stores. Malatji even sent a letter indicating that there were cartridges at the college all the time and denied having told the applicants that there were no cartridges.
126. The respondent representatives at the beginning of this arbitration had indicated that they were going to call Malatji to testify but they later did not. The respondent however wants me to admit the letter from Malatij whereas he was not coming to testify. The respondent did not even inform the hearing that Malatij will no longer testify on their behalf and therefore have no idea as to why I should admit this hearsay evidence.
127. In the circumstance, it is my view that the respondent failed to discharge the burden and therefore do not find the applicants guilty of this misconduct.
128. Charge 4: Failure to comply with college policy in that for the period 14 March to 12 April 2018 they contravened or failed to comply with item 10 of the Programme 191 Assessment Policy in that they
128.1. Without permission or authorisation postponed the Assessment Task 2 Formal Test 1.
128.2. Caused Tshwane South TVET College common assessment to be administered on different dates and times.
129. It was a matter of common cause that all the five applicants postponed the common assessment Task 2 Formal Test 1 from a date(s) between 14 -19 March 2018. Each applicant confirmed under oath the date or dates that his or her modules where postponed from and to which dates.
130. Both Chiloane and Mathye had testified that the applicants had failed to comply with the college’s assessment policy. It was Frederick’s unchallenged testimony that he trained all staff on policies including the assessment policy. Only the deputy principal could postpone the common assessment dates.
131. If the applicants wanted to postpone the common assessment dates, they should have approached the deputy principal with the request prior to the dates since such power vests only with the deputy principal. The applicants had time since, as per Masemene’s testimony, the cartridges started to get finished from 7 March, seven days before the start of the assessment dates.
132. I therefore find the applicants guilty of having failed to comply with company policy.
133. In summary I have found all the five applicants guilty on Charge 1, Charge 2 and Charge 4. I did not find the applicants not guilty of charge 3
Was dismissal an appropriate Sanction?
134. Due to my finding on guilty summarised above, I need to determine if dismissal was an appropriate sanction or not. The respondent argued that the trust relationship between the respondent and applicants has broken down since the applicants were found guilty of serious transgression
135. The applicants on the other hand drew my attention to the Constitutional Court decision in Sidumo to consider the factors listed there. They further argued that there was no evidence advanced by the employer to the effect that as a result of rescheduling the students obtained question papers from other campuses. The students made efforts within their powers to ensure the assessment were administered although not on the scheduled dates. The applicants had no previous disciplinary records. Lastly that the applicants were not trained and no training was provided.
136. There is clear lack of remorse by the applicants and they are still arguing lack of guilt at this late stage of the process. The applicants are lecturers who have been doing their jobs for several years and they are not ordinary shop floor workers. Assessment of leaners is an integral part of the job of being a lecture. Despite the generic training they received for being an assessor or moderator, it was uncontested evidence by Fredericks that he trained staff including the applicants in regard with the employer policies.
137. The circumstances discussed in the above paragraph, and some other consideration to be discussed below, makes me to conclude that the continued employment relationship has become intolerable.
138. The CCMA Guidelines: Guidelines on Misconduct Arbitration requires me to consider three issues when considering if dismissal was an appropriate sanction and those are: The gravity of the contravention, consistency in the application of the rule and sanction, factors that may have justified a different sanction.
139. The applicants have been found guilty Charge 1 (Causing prejudice to the college), Charge 2 (gross dishonesty), and Charge 4 (failure to comply with company policy). In regard with the act of causing prejudice to the college by conniving with colleagues immediately show that it goes to the trust relationship between the parties and therefore corrective disciplinary process cannot be applied.
140. It is trite in our labour law that dishonesty goes to the heart of trust relationship. In Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others ((2008) 29 ILJ 2581 (LAC)) the LAC) quoted with approval of the earlier dictum of the Labour Court in Standard Bank of SA Ltd v CCMA and Others ((1998) 19 ILJ 903 (LC) at 913 para 38. to the effect that: “It is one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.”
141. Regarding charge 4, the college policy that the applicants transgressed, its about assessment. To safeguard this policy, the respondent, just like any instituition involved in learning and teaching. The college has centralised deviation from this policy to its deputy principal at head office, and no one else. The reasonfor this is to jealously guard against compromising the quality of the assessment which can affect the credibility and and even the accreditation status of the college.
142. In light of the above I find that, that dismissal was the appropriate sanction and that the dismissal was therefore substantively fair.
143. It is therefore my finding that the dismissal of the applicants by the respondent was substantively and procedurally fair.
144. I accordingly make the following award:
AWARD
145. The dismissal of the applicants by the respondent was procedurally and substantively fair.
146. The matter is dismissed.
ELRC Panellist
LIVHU NENGOVHELA
Case No.: ELRC860-20/21GP
Date of Award: 21 July 2022
In the matter between:
VIWU obo Masemene and 4 Others
(Applicants)
And
Department of Higher Education and Training / Tshwane South TVET College
(Respondent)
Applicants’s representative: Phuti Phaka
Applicants’s address: Office 201, Second Floor
The Club Shopping Centre,
Cnr Pinaster Avenue and 18th Street
Pretoria, 0081
Telephone: 071 201 5864 / 012 765 7228
Fax 086 663 3849
Email freddy.phaka@gmail.com
Respondent’s representative: Bongani Khoza of Khoza Geffen INC
Respondent’s address: Depart of Higher Education/Tshwane South College
117 Fourth Street, Parkmore
Sandton,
Telephone: 011 784 5554/ 076 433 5370/012 843 6717
Telefax: 011 784 5547
Email: rhulani@bkinc.co.za / kwakwa.j@dhet.gov.za / thabane@tsc.edu.za/ bongani@bkinc.co.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for Arbitration between VIWU obo Masemene & 4 Others, the applicants; and the Department of Higher Education and Training / Tshwane South TVET College, the respondent. The matter was initially set down for arbitration to start from 27 May 2021, but due to various reasons the matter formally started on 14 June and took place on several days and was finally concluded on 23 May 2022.
2. The arbitration was to be held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5) (a)(ii) of the Labour Relations Act (“the LRA”). The initial part of the hearings was conducted via Zoom due to COVID-19 regulations. The latter part of the hearings took place at the facility Tshwane South TVET College HQ to overcome challenges of load shedding. The proceedings were digitally recorded.
3. The applicants attended the hearing and they were initially represented by Mr Thabani Zondo, an official from Vision Integrated Workers Union (VIWU). However, from around 25 March 2022, the applicants were represented by Mr Phuka Phaka, an attorney from Phuthi Phaka Attorneys; Advocate David Mtsweni and Advocate Simon Seforanyane Maelane.
4. The respondent was also present and was represented by Mr Bongani Khoza and Mr Thandolethu Mabuza, attorneys from Khoza Geffen INC.
5. Before the start of the arbitration process, the applicants submitted a bundle of documents that were later marked as bundle” A” and the respondent also submitted theirs that was later marked bundle “R”.
6. Since the parties were represented by experienced officials and legal representatives, I informed than I would adopt an adversarial approach during the arbitration proceedings instead of being inquisitorial. I however reminded the particularly the applicants to put their version when the respondent’s witness was under cross examination.
7. The parties agreed to file their closing arguments closing arguments by end of working day of Friday 24 June 2022. The Respondent’s closing arguments were received on 13 June 2022, and I received the one of the applicants on 09 July 2022. The submissions of both parties were carefully considered, but will not be repeated here, as the contents basically mirror what was put to parties during the leading of evidence and cross-examination in the arbitration hearing itself.
PRELIMINARY ISSUES
8. Before the start of the arbitration process on 1 July 2021, the representative of the respondent indicated that he submitted an objection for the continued reprepresentation of the applicants by Vision Integrated Workers Union (VIWU) since the union was not recognised by the Education Labour Relations Council (ERLC). It was the wish of the respondents to have VIWU to be removed from the hearing with immediate effect and proceed with the arbitration hearing without VIWU. The applicants challenged this with a verbal submission.
9. In the light of the written submissions already made by the respondents and the verbal submission made by the applicants. All the parties agreed that this matter should be decided on papers. It was agreed that each party shall have five (5) days starting with the applicants having until Tuesday 06 July 2021 to submit their written arguments.
I subsequently made a written ruling dismissing the application by the respondent objecting to trade union representation and granted the right to the applicants to have union representation.
BACKGROUND TO THE DISPUTE
10. The Applicants, Masemene KJ, Mashangwane KE, Masombuka PJ, Netshitungulu AE and Mpela F were former employees of the respondent. They were employed as lecturers at the Atteridgeville campus of the Tshwane South TVET College and were responsible for the computer based studies. The applicants were dismissed by the respondent after a disciplinary hearing that they did not participate in.
11. The applicants were charged by the respondent with Four (4) allegations of misconduct. The allegations were couched as follows:
11.1. Charge1: Causing Prejudice to the college
It is alleged that during the period 14 March 2018 to 19 March 2018, they caused prejudice to the administration and efficiency of the Tshwane South TVET College in that, they connived with other lecturers by deliberately failing to administer assessment task 2: Formal Test 1as per the General Studies Assessment Schedule 2018, First Semester.
11.2. Charge 2: Gross Dishonesty
It is alleged that on or about 19 March 2018 they committed an act of gross dishonesty when they attached their signatures to a memorandum addressed to the Head of Department Business Studies thereby bringing management under the impression that Task2:Tormal Test 1 had to be rescheduled due to lack of ink cartridges in Atteridgeville campus whilst the reason furnished was false.
11.3. Charge 3 Gross Dishonesty
It is alleged that on or about 12 April 2018 they committed an act of gross dishonesty when they, in a meeting with management deliberately misled management by informing the management team that they attempted to obtain ink cartridges from Mr A Malatji in order to administer Task 2: Formal Test 1, whilst no such attempt was made.
11.4. Charge 4: Failure to comply with College Policy
It is alleged that during the period 14 March to 12 April 201, they contravened or failed to comply with item 10 of program 191 assessment policy in that they without permission or authorisation postponed the assessment task 2 formal test 1and caused Tshwane South TVET College common assessment to be administered on different dates and times.
12. After narrowing the issues, the parties agreed that dismissal was not in dispute. The applicant challenged the fairness of the dismissal in regard with:
12.1. The disciplinary proceedings were not conducted in accordance with the respondent disciplinary code and procedures in that it was not chaired by an employee of the respondent.
12.2. The respondent failed to act consistently in that two other employees, who could not administer assessments were not charged and later dismissed.
12.3. The applicants disputed the fairness claiming that they were not in breach of respondent rules (substantive fairness).
13. They subsequently referred the matter to the ELRC on 07 April 2018 on the basis of Section 191 (1)(a)(i) of the Act. The dispute was set down for Conciliation on the 05 November 2020 and the dispute remained unresolved at the end of the Conciliation process on the same date. The Commissioner subsequently issued a certificate of non-resolution of the dispute. The matter was set-down for arbitration before me on the 27 May 2021.
14. Prior to commencement of the arbitration, the Applicants submitted a bundle of documents which was marked bundle A. The respondent also submitted two bundle of documents which were subsequently marked bundle R1 and R2. The documents were agreed to by the parties to be what they purported to be, and it was agreed that the contents would be dealt with by the witnesses during the hearing.
15. The Applicants challenged the procedural and substantive fairness of their dismissal.
JURISDICTION
16. No jurisdictional challenge was raised and because it was common cause that there had been a dismissal based on misconduct in the education sector. I find that the ELRC had jurisdiction to arbitrate in the matter.
ISSUE TO BE DECIDED
17. I am to determine whether 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.
APPROACH TAKEN DURING THE ARBITRATION PROCESS
18. Due to the huge experience and exposure to CCMA proceedings by both parties, I informed the parties that I would adopt an adversarial approach during the arbitration proceedings.
19. As it is only required that an award with brief reasons be issued, following is a summary of the relevant evidence tendered under oath:
RESPONDENT’S CASE
Mr Trevor Fredericks
20. Mr. Trevor Fredericks took oath and indicated that he was the labour relations consultant for the respondent. He started working for the respondent since 2011. He was asked by the principal of the college to investigate the matter when management received an email from Mr. Marcus Buda informing them that computer tests have been delayed due to shortage of cartridges.
21. Buda is the head of department (HOD) of business studies and the applicants report to him (A35-36). The witness was concerned that this matter was only reported on 11 April 2018 whereas the lecturers failed to administer the tests for the period 14 to 19 March 2018.
22. This failure to administer test for Computer related courses was a concern to management. Buda, the HOD of the applicants was charged and dismissed in February 2018 by the respondent for making sweeping statements regarding the lack of study material while the management was gallivanting with the SRC. At the time of this incident, Buda had lodged an appeal the Minister of Higher Education and Training and was still awaiting that outcome. On 14 March, Buda’s five (5) immediate subordinates (applicants) including his brother SM Buda, who is also a lecturer, made this claim that ink cartridges were lacking for them to administer an exam. This claim was made by the applicants two weeks after Buda’s appeal to give credence to his appeal.
23. The respondent viewed this failure by the applicants to administer examination by computer science students in a serious light. Programme 191 Assessment Policy requires conformance with this policy to be addressed with the deputy principal academic (R70 item 22). This was not done by any of the lecturer. The applicants were therefore not authorised to postpone the assessments.
24. The general studies assessment schedule for first semester (A25-27) was for the period 14 to 20 March 2018. It is a formal assessment; test 1 and test 2 gives 100% of the total mark (R66). The test is also a common assessment for all the campuses including main campus, Odi and Centurion. This means all students at all the campuses write at the same time at their respective venues.
25. After receiving the memo from Buda on 11 April 2018 informing the academic unit that the computer test series have been delayed due to shortage of cartridges, Ms Ntsimane, Ms Mathye and Mr Madumo visited the campus to interview different stakeholders and later generated a report on pages R48-54. Mr. Yende, the campus manager, who had already indicated via email that he was not aware about the delayed exams, was also in attendance.
26. This team interviewed the applicants and Mr Malatji, the store manager. During the cause of this meeting, this team requested Mr Madumo to go and count the 80A cartridges that were available at that time at the stores. Madumo came back and informed them there were 27 cartridges available at that moment.
27. Malatjie informed the team that there was no lecturer that approached him for the cartridges during that period and indicated that there were cartridges all the time.
28. After enquiring from the applicants individually why they did not conduct the assessment on the scheduled dates. The applicants responded with similarly drafted letters (R56-59) stating that the reason for their failure to administer exams was lack of ink cartridges.
29. The applicants failed to administer their Test 1 exam as follows:
29.1. Masemene: 14 & 19 March 2018
29.2. Mashangwane: 15 March 2018
29.3. Masombuka: 15 & 19 March 2018
29.4. Netshitungulu: 15 March 2018
29.5. Mpela: 16 & 18 March 2018
30. On R46 & 47 is a two pager control sheet reflecting which lecturer collected the required 80A Cartridge on which day and quantity collected. The sheets show that cartridges were collected by a number of lecturers on several days between 30 January2018 and 24 April 2018. Mashangwane collected a cartridge on 14 March 2018, Ramahllerwa on 19 March 2018 and Buda EO on 10 April 2018.
31. In regard with the complaint that Ramahlalerwa should have been disciplined also, the witness indicated that Ramahlalerwa had a clash on 16 March 2018, the clash was from the NCV time table and he requested permission in advance from the deputy principal academic that was granted.
32. The witness further indicated that he could only do investigation when there was information provided. When the applicants were charge, they later established that Buda EO and Ramahlalerwa had also made postponements on their exams. After investigating, it was established that Ramahlalerwa had permission and there was no allegation of misconduct against him. However, Buda EO had no permission and his reason was that there were no cartridges. That was why Buda was later charged with misconduct found guilty and later dismissed.
Ms Nomsa Mathye
33. Ms Nomsa Mathye took oath and stated that she was the head of schools and general studies of the Tshwane South TVET College since 2016. She has served the college for more than 21 years. She served as the college head of moderation since she was responsible for the college’ curriculum development, and maintenance of academic standards.
34. She was the one who drafted the assessment schedule for general studies (R 38-41). The assessment schedule must be complied with across the whole college in all campuses. The rescheduling of the exams affects the credibility and integrity of the college and should not be taken lightly.
35. The witness became aware about this incident when she received an email from Buda and the memo from the applicants (R43) when she was copied the letter by Buda to Ms Ntsimane (deputy principal academic) on 11 April 2018. That was when she became aware that the applicants did not administer computer studies exam at Atteridgeville campus.
36. The following day Ms Mathye, Mr Madumo, Mr Yende and the witness went Atteridgeville on fact finding mission to establish the extant and reason of not writing computer studies exams. The applicants admitted that various computer related subjects that they were lecturing that should have been written between 14 and 19 March 2018 were postponed due to the unavailability of ink cartridges.
37. The witness was a scriber at this meeting and she was the one who generated the report on R 48 – 53. The meeting received a verbal report from Malatji who indicated that cartridges were available at all time and he was never approached by the applicants regarding cartridges. Madumo was also sent during the meeting to go and count the available cartridges. Madumo came back and indicated to them that there were 27 Cartridges were still available at that time.
38. Ramahlalerwa did not administer her exams scheduled on 16 March 2018 since there was a clash with the NCV program. He was granted permission by the deputy principal academic in this regard. Further to this, Ramahlalerwa did not claim that there were no ink cartridges like what the applicants did.
39. The witness did not know that Ms S Matlala did not administer her exams as scheduled. It was for the first time she was hearing this claim against Matlala and therefore needed to be investigated and those claiming that Matlala shoud be disciplined should bring facts in this regard.
40. The failure to administer the exams on the scheduled date the way it was done by the applicants has huge negative impact to the college. The students come to the college prepared to write and they are told they could not write. New dates need to be set within a short period of time and this affect both the students and the college negatively. New examination papers need to be set and requires more resources.
41. The applicants could have saved the work in the memory sticks until the cartridges were available to print. They could have borrowed from other lectures or even from other campuses. The deputy principal academic makes decision in regard with non-conformance with the assessment policy. If they had informed the deputy principal, interventions would have been made. The campus manager and deputy campus manager were also not informed.
Ms Gina Khoza
42. Ms Gina Khoza took oath and stated that she was senior lecturer in general studies and data. The applicants reported to her and she in turn reported to Buda, who was the HOD. She was not aware that the applicants did not administer their exams until Buda informed her about it.
43. She was never approached that there were no cartridges and they did not report to her that they were not able to print.
44. She was of the view that cartridges were there since she was able to administer her exams during the period 14 to 20 March 2018. The applicants did not want to administer the exams because they were in support of Buda’s case.
Mr Thabane Tebogo
45. Mr Thabane Tebogo took oath and indicated that he was the Assistant Director at Tshwane South TVET College. He reported to the principal and he was involved in the appointment of the chairperson of the internal disciplinary hearing. He submitted five names to the principal who selected Ms Daphne Lubisi from the list. Lubisi was employed by the respondent at legal services and she resigned from the respondent in January 2019 and the hearing had started in June 2018 already.
46. Lubisi continued to chair the disciplinary hearing after her resignation since she could not have left the matter part heard.
Mr Tshilidzi Libago
47. Mr Tshilidzi Libago took oath and stated that he was an Information technology specialist and he worked in the industry for more than fourteen years. He was currently placed at the centurion campus of the respondent. He has worked with printers and cartridges and has a good understanding how they work.
48. Cartridges get depleted depending on the volume of the print done, the temperature of each printer and gaps between printing.
Mr. Goodman Dumisani Mnisi
49. Mr Goodman Mnisi took oath and stated that he was the deputy principal registry with the collage. He was the head of procurement at the time of the incident. Procurement was centralised through his office at head office. Campuses provided motivation for goods and services and his office would obtain three quotations from existing suppliers in the database.
50. The request for amongst others 50x 80A cartridges for Atteridgeville campus was made on 17 October 2017 (R102). The purpose of the cartridges was for the NCV and report 191 students’ examination and also for January 2018 registration period. The submission was approved by the principal on 16 January 2018 (R105) and delivery of 80A cartridges was made as follows:
50.1. 02 November 2017 (R112) : x 25
50.2. 23 January 2018 (R106) : x 25
50.3. 14 June 2018 (R113) : x 30
51. Therefore, for the period November 2017 until June 2018 there were 80 cartridges delivered at Atteridgeville campus.
52. In R46 16 cartridges were issued and on R47 17 Cartridges were issued totalling 32 cartridges for the period 30 January 2018 to 24 April 2018. This meant that there were 17 cartridges remaining and there were cartridges when the applicants did not administer the exams for the period 3 to 19 March 2018.
53. The third and second last dates on page R46 were not proper dates and it was clear human error, but did not affect the total calculations.
54. The cartridges were there during the period the applicants claimed that they could not administer exams due to lack of cartridges. Stock levels are checked all the time by the storeman. If the cartridges were finished, the applicants could have escalated the matter and the witness could have borrowed from other sister campuses or procured through a speedy process. Postponement of exams was not an option.
Adv. Joseph Chiloane
55. Adv. Joseph Chiloane took oath and stated that he was the principal and chief accounting officer of the collage. He was the one who levelled the allegations of misconduct against the applicants. He charged the applicants after receiving two reports. The first one was the report that was generated by the academic unit which required an explanation from the applicants why the exams where postponed.
56. The second investigation was conducted by Frederick to confirm if there was misconduct by applicants.
57. The Chiloane approved the purchase of 50 A80 cartridges that were later delivered at Atteridgeville campus as per the request by the campus manager.
58. The witness went through the exercise of calculating the number of cartridges delivered and issued and concluded that there were about 17 cartridges available throughout end January to end April 2018.
59. The cartridges were available when the applicants made a claim that they were finished. They did this in support of their HOD, Buda who was dismissed but was still awaiting his appeal.
60. Buda had sent an email to City Press newspaper and indicated that the college mismanaged funds and did not prioritise teaching and learning (R179-184). The emails by Buda to the newspaper amounted to gross misrepresentation and he was dismissed. The applicants were trying to showing support to their HOD claiming that the cartridges were finished whereas they were still there.
61. The store register clearly showed that Mashangwane collected a cartridge on 14 March, the day he was supposed to administered an exam (R47). Ramahlalerwa collected cartridges on 19 March 2018, the day the applicants were writing a memo claiming that there were no cartridges.
62. Further to this there were other people who collected cartridges during that period. If the cartridges were truly finished, they could have brought others from sister campuses or deviated from procurement process to urgently make a purchase other than postpone the exams.
63. The conduct of the applicants amounted to a sabotage. He did not trust them anymore due to their conduct.
THE APPLICANTS’S CASE
Ms Kgago Mashangwane
64. Ms Kgabo Mashangwane took oath and stated that she was employed by the college as a lecturer offering Entrepreneurship Business Management (N4 & N6) and Introduction to Information Processing (N4). On 14 March she was supposed to administer assessment for Information Processing. She went to the storeman, Mr Malatji a day before on 13 March and he informed her that she should came back the following day since he had run out of cartridges. She came back the following day and Malatji confirmed that he had no cartridges.
65. The witness and her colleagues had been going to the HOD on daily basis from 14 March until he told them to do it in writing 19 March 2018. That was when she appended her signature on the memo to the HOD dated 19 March 2018 (A17).
66. The witness actually took a cartridge on 01/03/2018 and not 14/03/2018. The 014/03/2018 entered on the second row of A24 should actually be read as 1st March 2018. She did not put the number “4” when she entered the date to collect the cartridge.
67. The cartridges she collected on 01 March was depleted before 14 March since she made first year students print daily.
68. After Malatji had informed her that there were no cartridges, he advised her that she should approach Makgobane for a partially used cartridge. She then went to Makgobane who handed her the partially used cartridge which she used to administer the assessment. During the assessment the cartridge got depleted and she asked the students to save the work and that would be printed on some other day. This was after she had informed the HOD that there were no cartridges anymore. The students were called back the following day on 15 March and printed the assessment. She informed Masombuka, about the unavailability of cartridges when the HOD told her that he could do nothing about it.
69. The witness together with the other four applicants, appeared before the academic unit which was investigating the matter on 12 Aril 2018. According to the report, Malatji indicated that the cartridges were available at all the time including the period 14-19 March2018 when the applicants indicated that there were no cartridges. She also confirmed that on R 57 was her signature responding to the respondent Audi letter.
Mr Joseph Masumbuka
70. Ms Joseph Masumbuka took oath and stated that he was employed by the college as a lecturer offering Introduction to Computer Practice (N4) and Information Processing (N4 and N5). He started working for the college since 22 February 2013. He delivered the three modules and was also responsible for their assessments.
71. He was supposed to have administered the assessment for his modules o 15, 16, and 19 March. The applicant managed to administer assessment 15 March, but could not on 16 and 19 since he had no cartridges. He went to Malatije who told him that there were no cartridges. He reported the matter to the HOD who informed him that he should administer when the cartridges become available.
72. The students came on 19 March for an assessment. He went to various labs and there were no cartridges. He approached another colleague, Ramhlalerwa who also could not administer sometimes during the week. He used the cartridge from Ramahlalerwa to administer on 19 March. He had no idea where Ramahlalerwa found the cartridge on 19 March.
73. When the school reopened, Malatji told him the cartridges were there, he went to collect and administered the exams on12 April 2018.
74. The witness did not know where the cartridges came from in April when they came back from recess. Malatije just called him and told him that the cartridges were available. He however acknowledged that the respondent was indicating that the next delivery was on 14 June 2018 (R113).
75. The applicant did not attend the disciplinary hearing since the chairperson was not an employee of the respondent.
Ms Johanna Masemene
76. Ms Johanna Masemene took oath and stated that she was employed by the college as a lecturer offering Computer Practice (N4) and Information Processing (N5 & N6). She started working for the college since January 2013. Her cartridge got finished some three or four days before the assessment period. She went to the storeman, Mr Malatji on 13 March and he informed her that he had run out of cartridges.
77. The witness went to report the matter to the HOD who told her that nothing could be done, she should wait for the cartridges. She however managed to administer on 19 March after she got the cartridge from Ramahlalelwa. Malatji did not have cartridges even on 19 March 2018.
78. She denies the charges against her and further indicated inconsistency in that Ramahlalerwa and Ms Matlala failed to administer their exams and non were never disciplined. Mahlalerwa was not disciplined she he was given permission by the deputy principal academic since there was a clash. The respondent did not know about the complaint in regard with Matlala. If applicants have more details about Matlala’s transgressions, they must be submitted to the respondent for investigation for further investigation.
Mr Avheani Netshitungulu
79. Mr Avheani Netshitungulu took oath and stated that he was employed by the college as a lecturer offering Computerised Financial Systems (N5 and N6). He was employed since August 2011.
80. He was supposed to have administered the assessment for both modules on 15 March 2018, but could not since he had no cartridges. He went to Malatije who told him that there were no cartridges. He reported the matter to the HOD who informed him that he should administer his modules when the cartridges become available.
81. He denied all the charges against him.
Mr Vusile Mpela
82. Mr Vusile Mpela took oath and stated that he was employed by the college as a lecturer offering Computerised Financial Systems (N4 and N5) and Income Tax. He was employed since 23 January 2015. He shared the lab with Netshitungulu and Masemene.
83. He was supposed to have administered the assessment for both modules on 15 and 16 March 2018, but could not since he had no cartridges. He went to a day before on 14 March to collect the cartridges from Malatji who told him that there were no cartridges. He reported the matter to the HOD who informed him that he should administer his modules when the cartridges become available.
84. He did not doubt Mr Malatji when he told him there were no cartridges on the 14 and again on 16 March 2018. He signed the memo dated 19 March on R43 since all the applicants had similar problems.
85. He denied all the charges against him.
86.
SUBMISSION OF CLOSING ARGUMENTS
87. Both parties submitted written closing argument. The submissions of both parties were carefully considered, but will not be repeated here, as the contents basically mirror what was put to parties during the leading of evidence and cross-examination in the arbitration hearing itself.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
88. In this matter, the respondent dismissed the five applicants on the basis that it viewed them as having been guilty of the following charges:
88.1. Charge 1: Causing prejudice to the college in that during the period 14 March to 19 March 2018 they connived with each other by deliberately failing to administer assessment task two formal test one.
88.2. Charge 2: Gross dishonesty in that on or about 19th March you committed an act of gross dishonesty when they appended their signatures to a memorandum addressed to the Head of Business Studies thereby bringing management under the impression that formal test 1 had to be rescheduled due to a lack of ink cartridges at Atteridgeville campus whilst the reason furnished were false.
88.3. Charge 3: Gross dishonesty in that on around 12 April 2018 they deliberately misled management by informing management team that they had attempted to obtain ink cartridges from Mr A Malatji, whilst no such attempt was made.
88.4. Charge 4: Failure to comply with college policy in that for the period 14 March to 12 April 2018 they contravened or failed to comply with item 10 of the Programme 191 Assessment Policy in that they
88.4.1. Without permission or authorisation postponed the Assessment Task 2 Formal Test 1.
88.4.2. Caused Tshwane South TVET College common assessment to be administered on different dates and times.
89. The respondent sought to discharge the onus of proving that the dismissal was substantively and procedurally fair, through the evidence of eight witnesses that appeared in the hearing.
90. At the commencement of the hearing, the issues in dispute were narrowed down. The applicants were challenging the procedural and substantive fairness of their dismissal. The third challenge was that the respondent failed to act consistently in that two other employees who failed to administer assessment in line with the assessment timetable were never charged and later dismissed.
Consistency
91. The applicants argued that the respondent failed to apply the rule(s) that they were charged with consistently in that two other employees who did not administer assessment in line with assessment time table. The other employees are Mr Ramahlalerwa and Ms Matlala failed to administer assessment in terms of the assessment timetable.
92. Both Fredericks and Chiloane testified that during the early part of the internal investigation. At that time the respondent had been accused of not charging Mahlalerwa and Buda EO. Fredricks went back and investigated the matter and established that Mahlalerwa did not transgress any of the respondent’s policies since he obtained permission from the deputy principal. The reason permission was granted was that Mhlalerwa approach the deputy principal in advance, the reason for his request was that there was a clash with another NCV module.
93. This investigation however found that Buda EO needed to be charged with all other five applicants. He was later charged found guilty and subsequently dismissed. In regard with Matlala they were hearing the matter for the first time in this arbitration. If the applicants come with evidence, they were willing to investigate the matter.
94. According to the evidence tender, I am not convinced that the parity principle issue arises in this matter.
Procedural fairness
95. The respondent’s disciplinary code is a collective agreement entered into between the parties. It is entered into under the auspices of the Public Service Coordinating Bargaining Council (PSCBC) as Resolution 1 of 2003 (A 1-12).
96. The applicants argued that Clause 7.3(b) of the collective agreement provides that:
“b. the chair of the hearing must be appointed by the employer and be an employee on higher grade than the representative of the employee”
97. Ms Lebese, the chairperson of the hearing, was an employee when he was appointed to chair the hearing. She however resigned early in 2019 before the hearing was finalised.
98. The applicants were of the view Lebese lost her locus standi to preside over this disciplinary immediately on her resigned.
99. It is my view that since the chairperson only resigned after she had started hearing the matter it was going to be another waste of time to start the second appointment process of a chairperson. At the time of appointment, Lebese was still an employee of the respondent. I also cannot see the prejudice that the applicants had suffered by the chairperson continuing to chair the hearing. It is therefore my finding that the dismissal of the applicants was procedurally fair.
Substantive fairness
100. In terms of section 185 of the Labour Relations Act, 1995 as amended (“the Act / the LRA”) every employee has the right not to be unfairly dismissed. Section 192 of the Act provides that the employee carries the onus of proving the existence of a dismissal, whilst the employer has to proof that the dismissal was fair. In the present case it was common cause that the applicants were dismissed on 11 July 2020.
101. In determining the fairness of the applicant’s dismissal, I am to be guided by the Code of Good Practice: Dismissal in Schedule 8 of the LRA and the CCMA Guidelines on Misconduct Arbitrations.
102. According to Item 7 of the Code and the CCMA guidelines on Misconduct Arbitration, the first consideration regarding the substantive fairness of a dismissal requires a factual determination as to whether the employee actually contravened a rule or standard regulating conduct in the workplace.
103. Thereafter consideration should be made as to: Was there a valid or reasonable rule, was the rule known to the applicants or could she reasonably be expected to know it and was the rule consistently applied. The allegation against the applicants have already been summarised earlier on in this award.
104. The respondent testified that there was a valid rule that the applicants was reasonably expected to have known it. The four charges of misconduct levelled against the applicants where in respect of causes 6 and 7 read together with annexure A of the respondent’s disciplinary code and procedure for the public service as contained in Resolution 1of 2003. The charges being (1) causing prejudice to the College, (2) Gross Dishonesty, and (3) failure to comply with college policy.
105. The applicants were all levelled with the same allegations of misconduct. The difference in the main would be the dates that they failed to administer the assessment in regard with charge 3. Secondly, the explanation of events by all applicants were similar but not necessarily the same. I will therefore not detail the circumstances around each of the five applicants unless that has direct link to the findings.
106. The witnesses who testified on behalf of the Respondent were Mr Trevor Fredericks, Ms Nomsa Mathye, Mr Tebogo Thabane, Mr Sydney Libago, Mr Goodman Mnisi and Adv. Joseph Chiloane. All the five applicants testified on their own behalf.
107. The witnesses of the respondent were all extremely compelling. They testified in great detail, and, especially when explaining how the assessments were postponed without approval. Both Khoza and Mthye were emphatic on this issue and their demeanour reflected great disappointment with what the applicants had done.
108. Both Mnisi and Frediricks were quite emphantic on the issues of of lack of cartridges particularly regarding that there was at no stage were cartridges were not there. The long delay in reporting the matter, the failure to report to any other person else beyond Buda was a concern to these witness. Particularly failure to notify Yende since the problem could have been resolve.
109. While Chiloane testified on all the issues there was corroboration between the witnesses and also the documents – emails, reports, letters, policies, delivery notes and store registers. I have no reason at all to doubt the evidence of any of the employer’s witnesses. Their versions were credible and factual with no signs of any “tailoring” evident at all. Most importantly, their versions were corroborated in every respect by each other.
110. I did not think that the applicants were good witnesses. Their defence rested solely on a blatant denial of any guilt at all. The applicant’s first witness, Mashangwana, while being examined by Zondo, indicated that she collected the cartridges on 1 March 2018 and not 14 March 2018. The entry made on the register was clearly 14 March entered as 014 / 03/18. She claimed that the 4 was inserted by someone else.
111. Few days later when she was being examined by Maelane, she indicated that it was not her that made that entry and she did not collect on 14 March or 01 March. 37. The reason for this lack of a consistent version was that she should have administer an assessment on 14 March and she did not. The reason she advanced was that the reason was that there were no cartridges.
112. Despite that cartridges were being collected on 01; 14 and 19 March. Collection continued on 03; 10; 11; April. The applicant continue to deny that there were cartridges.
I will now deal with each charge and my findings.
113. Charge 2: Gross dishonesty in that on or about 19th March they committed an act of gross dishonesty when they appended their signatures to a memorandum addressed to the Head of Business Studies thereby bringing management under the impression that formal test 1 had to be rescheduled due to a lack of ink cartridges at Atteridgeville campus whilst the reason furnished were false.
114. The complaint by the respondent in regard with this charge is that all the applicants signed this memorandum in R43 dated 19 March 201, informing their HOD that the subject test 2 assessment was delayed due to lack of cartridges. On receipt of this memo that was ultimately delivered senior management of the college by the HOD on 11April 2018. The academic unit immediately conducted an investigation on 12 April 2018, the following day, to go to Atteridgeville to try and confirm the complaint.
115. The outcome of this investigation is found in the report dated 18 April 2018 on R 48-54 and its salient points are:
115.1. The academic unit was concerned that whereas the exams were delay during the period 14 – 19 March 2018, they were only informed via email on 11 April 2018
115.2. Yende, the campus manager was not informed about this postponement.
115.3. The applicants were interviewed by the academic unit and they confirmed that the postponed assessment for computer subjects that were scheduled for 14 to 19 March 2018was according to academic calendar of the college.
115.4. The applicants informed the academic unit that cartridges started to be finished from the week of 7 March 2018
115.5. Malatji promised them cartridges but he never delivered.
115.6. Mpela indicated that there was time where students wrote the task and they could not print but saved the student work on the computers and printed on some other time.
115.7. They started receiving cartridges from Malatji from 11 April 2018.
115.8. Malatji informed the academic unit that there was no stage where there was a shortage of cartridges and none of the lecturers concerned came to him to request cartridges.
115.9. Madumo was asked, during the cause of the investigation to go to the storeroom and check how many cartridges were in stock and he found 27 cartridges.
116. The other investigation was done by Fredericks which led to the individual applicant responding to the Audi letters (R 54 -59). This lead to charges with allegations of misconduct against the applicants.
117. The evidence by the respondent that there were cartridges on campus is overwhelming. Madumo confirmed that that there were 27 A80 cartridges after a quick stock count on 12 April 2018. Through various calculations with Mnisi and Chiloane the respondent showed that cartridges issued in R 46-47 subtracted from the 80 delivered (R102, 106-108,112) there were around 17 cartridges available at the time the applicants were postponing the exams due to lack of cartridges. Cartridges where also being collected from the stores on 1,14 and 19 March 2022. Malatji told the academic unit that there was no shortage of cartridges.
118. It is my finding that that there were cartridges during this period and there the applicants are guilty of this misconduct.
119. Charge 1: Causing prejudice to the college in that during the period 14 March to 19 March 2018 they connived with each other by deliberately failing to administer assessment task two formal test one.
120. Chiloane testified explaining the status of Buda, the HOD that he was already dismissed by the college and they were only awaiting his appeal with the Minister of Higher Education and Training. The reason of his dismissal was that he was found guilty for spreading wrong information out the college through City Press newspaper. Buda’s appeal to the Minister and the failure of six (6) of his staff members to administer assessment happened few weeks apart.
121. Only Buda, the HOD knew about the lack of cartridges before the assessment, allowed them to postpone whereas he had no powers to do so in terms of assessment policy. In fact, according to Masemene at the meeting with the academic unit, cartridges started not be available from 7 March 2018. Neither Buda, or any of his six (6) lecturers drops an email or make a phone call to the campus manager (Yende), the then procurement manager (Mnisi), and or the deputy principal academic (Ntsimane).
122. Even Gina Khoza, senior lecturer in general studies, testified that she was not informed about lack of cartridges by Buda or any of the six lecturers that claimed that there were no cartridges. Buda only informed her around the 19 March. It appears it was only they few people who needed to know so that the assessments were postponed first. I find the version most probable and the applicants did not come with any other version except to deny.
123. It therefore my finding that applicants were conniving in this regard.
124. Charge 3: Gross dishonesty in that on around 12 April 2018 they deliberately misled management by informing management team that they had attempted to obtain ink cartridges from Mr A Malatji, whilst no such attempt was made.
125. The respondent did not bring in Malatji to testify in this regard. The applicants had indicated, as early as on 12 April 2018 indicated that it was Malatji who told them that there were no cartridges at the stores. Malatji even sent a letter indicating that there were cartridges at the college all the time and denied having told the applicants that there were no cartridges.
126. The respondent representatives at the beginning of this arbitration had indicated that they were going to call Malatji to testify but they later did not. The respondent however wants me to admit the letter from Malatij whereas he was not coming to testify. The respondent did not even inform the hearing that Malatij will no longer testify on their behalf and therefore have no idea as to why I should admit this hearsay evidence.
127. In the circumstance, it is my view that the respondent failed to discharge the burden and therefore do not find the applicants guilty of this misconduct.
128. Charge 4: Failure to comply with college policy in that for the period 14 March to 12 April 2018 they contravened or failed to comply with item 10 of the Programme 191 Assessment Policy in that they
128.1. Without permission or authorisation postponed the Assessment Task 2 Formal Test 1.
128.2. Caused Tshwane South TVET College common assessment to be administered on different dates and times.
129. It was a matter of common cause that all the five applicants postponed the common assessment Task 2 Formal Test 1 from a date(s) between 14 -19 March 2018. Each applicant confirmed under oath the date or dates that his or her modules where postponed from and to which dates.
130. Both Chiloane and Mathye had testified that the applicants had failed to comply with the college’s assessment policy. It was Frederick’s unchallenged testimony that he trained all staff on policies including the assessment policy. Only the deputy principal could postpone the common assessment dates.
131. If the applicants wanted to postpone the common assessment dates, they should have approached the deputy principal with the request prior to the dates since such power vests only with the deputy principal. The applicants had time since, as per Masemene’s testimony, the cartridges started to get finished from 7 March, seven days before the start of the assessment dates.
132. I therefore find the applicants guilty of having failed to comply with company policy.
133. In summary I have found all the five applicants guilty on Charge 1, Charge 2 and Charge 4. I did not find the applicants not guilty of charge 3
Was dismissal an appropriate Sanction?
134. Due to my finding on guilty summarised above, I need to determine if dismissal was an appropriate sanction or not. The respondent argued that the trust relationship between the respondent and applicants has broken down since the applicants were found guilty of serious transgression
135. The applicants on the other hand drew my attention to the Constitutional Court decision in Sidumo to consider the factors listed there. They further argued that there was no evidence advanced by the employer to the effect that as a result of rescheduling the students obtained question papers from other campuses. The students made efforts within their powers to ensure the assessment were administered although not on the scheduled dates. The applicants had no previous disciplinary records. Lastly that the applicants were not trained and no training was provided.
136. There is clear lack of remorse by the applicants and they are still arguing lack of guilt at this late stage of the process. The applicants are lecturers who have been doing their jobs for several years and they are not ordinary shop floor workers. Assessment of leaners is an integral part of the job of being a lecture. Despite the generic training they received for being an assessor or moderator, it was uncontested evidence by Fredericks that he trained staff including the applicants in regard with the employer policies.
137. The circumstances discussed in the above paragraph, and some other consideration to be discussed below, makes me to conclude that the continued employment relationship has become intolerable.
138. The CCMA Guidelines: Guidelines on Misconduct Arbitration requires me to consider three issues when considering if dismissal was an appropriate sanction and those are: The gravity of the contravention, consistency in the application of the rule and sanction, factors that may have justified a different sanction.
139. The applicants have been found guilty Charge 1 (Causing prejudice to the college), Charge 2 (gross dishonesty), and Charge 4 (failure to comply with company policy). In regard with the act of causing prejudice to the college by conniving with colleagues immediately show that it goes to the trust relationship between the parties and therefore corrective disciplinary process cannot be applied.
140. It is trite in our labour law that dishonesty goes to the heart of trust relationship. In Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others ((2008) 29 ILJ 2581 (LAC)) the LAC) quoted with approval of the earlier dictum of the Labour Court in Standard Bank of SA Ltd v CCMA and Others ((1998) 19 ILJ 903 (LC) at 913 para 38. to the effect that: “It is one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.”
141. Regarding charge 4, the college policy that the applicants transgressed, its about assessment. To safeguard this policy, the respondent, just like any instituition involved in learning and teaching. The college has centralised deviation from this policy to its deputy principal at head office, and no one else. The reasonfor this is to jealously guard against compromising the quality of the assessment which can affect the credibility and and even the accreditation status of the college.
142. In light of the above I find that, that dismissal was the appropriate sanction and that the dismissal was therefore substantively fair.
143. It is therefore my finding that the dismissal of the applicants by the respondent was substantively and procedurally fair.
144. I accordingly make the following award:
AWARD
145. The dismissal of the applicants by the respondent was procedurally and substantively fair.
146. The matter is dismissed.
ELRC Panellist
LIVHU NENGOVHELA