ELRC43-22/23GP

Panellist: Themba Manganyi
Case No.: ELRC43-22/23GP
Dates of Hearing: 24 June 2022 and 01 August 2021
Date of Arguments: 08 August 2022
Date of Award: 29 August 2022

In the Arbitration Hearing between

PEU OBO AUBREY MAHLOBOGOANE APPLICANT

And

GAUTENG DEPARTMENT OF EDUCATION RESPONDENT



Applicant’s representative:
Mr Jonas Motubatse


Respondent’s representative:
Mr George Mbonde

Details of hearing and representation

1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, for an alleged unfair dismissal dispute referred to the Education Labour Relations Council (“the Council”). The arbitration proceedings were held on 24 June 2022 and on 01 August 2022 at Tshwane West District Offices in Klipgat.

2. The Applicant, Mr Aubrey Mahlobogoane, attended the proceedings and he was represented by Mr Jonas Motubatse (“Motubatse”), a PEU Official. Mr George Mbonde (“Mbonde”), a Labour Relation Officer, represented the Respondent, Gauteng Department of Education.

3. The parties submitted bundles of documents and the Applicant’s bundle was marked as Bundle A and the Respondent’s as Bundle R. The Respondent also submitted a video footage of the CCTV and the Applicant submitted a voice recording of the CCTV video footage. The contents of the bundles and the CCTV footage were not disputed. Parties were allowed to call witnesses and to cross-examine them and at the end of the proceedings parties agreed to submit their heads of arguments in writing on or before 08 August 2022. The heads of arguments were duly received. The proceedings were digitally recorded and I also took hand written notes. The recordings thereof were retained by the Council.

Issue/s to be decided

4. The existence of dismissal was not in dispute. I am therefore required to determine the fairness of the dismissal. The Applicant challenged both the procedural and the substantive fairness of his dismissal. He also challenged the consistent application of the rule and the appropriateness of the sanction.

5. In the event that I find that the dismissal was unfair, the Applicant sought retrospective reinstatement as a relief.

Background

6. The Applicant was a PL1 Educator at Fr. Smangaliso Mkhatshwa Secondary School. He commenced his employment with the Gauteng Department of Education in January 2019. The Applicant was dismissed on 14 April 2022 and at the time of his dismissal; he earned an annual salary of R280 038, 00. The Applicant was charged and dismissed for an alleged misconduct in that he was found in wrongful or unauthorised possession of a Lenovo laptop. The Applicant did not dispute that he was in possession of the said laptop. However, he disputed that he had any intentions of dispossessing the rightful owner of the said laptop.

7. The Applicant alleged that his dismissal was both procedurally and substantively unfair. He further alleged that the Respondent did not apply the rule consistently and he submitted the name of Messrs Amukelo Maweya, Colani P. Mazibuko and Diokeng Seshweni, as the comparators in this regard.

Survey of evidence and arguments

The Respondent’s case

The Respondent called four witnesses and they all testified under oath. In summary, their evidence was the following:
8. Mr Amukelo Ivan Maweya (“Maweya”) stated that he was the Deputy Principal at Fr. Smangaliso Mkhatshwa Secondary School. He testified that on 18 June 2021, the Applicant came to his office just after school with a parent of a learner to address something with the parent. He then left for home after addressing the parent. At around 17h00, he received a call from Mr Mahlangu who reported to him that the laptop allocated to him was lost. He went to the school on Saturday (19/06/2021) as there were classes for SSIP. He stated that the Applicant was also at the school. During lunch time, the Applicant commented that ‘legodu wa leitsi and ga go na legodu kamo’. Literally translated to mean that ‘you know a thief when you see one and there was no thief in here’. He testified that he viewed the CCTV video footage with Mr Kheswa, the other Deputy Principal. On the footage, they saw the Applicant putting a laptop inside his car and after a while, the Applicant was seen placing another laptop in the boot of his car. On Monday, during the briefing session, Kheswa raised the issue of the lost laptop and requested that if anyone has seen the laptop must come forward. Instead, the Applicant commented and asked what was important between the laptop and Seshweni’s lost cellphone. On Tuesday, they realized that the laptop was not returned, a case was opened and SAPS officials came to the school. After the SAPS officials viewed the footage, they requested that the Applicant be called. The Applicant only conceded that he had the laptop after he was told that he was seen on the CCTV footage.

9. Under cross-examination, he restated that he saw the CCTV footage on Saturday. And he confirmed that he did not engage the Applicant after viewing the footage. He could not comment on whether reporting the case to SAPS was to punish or to discipline the Applicant. He stated that he had a good relationship with the Applicant. He stated that they tried to resolve the matter at the school level, but the Applicant did not come forward. He refuted any knowledge of the Applicant’s lost cellphone that was found in his possession. However, when re-examined, he conceded that he found the Applicant’s cellphone in the toilet and he gave it to the Applicant.

10. Mr Bongani Jerry Kheswa (“Kheswa”) stated that he was the Deputy Principal at Fr. Smangaliso Mkhatshwa Secondary School. He testified that Mahlangu reported to him that he lost a laptop. On Saturday (19/06/2021), he went to school and he viewed the CCTV footage with Maweya. On the footage, they saw the Applicant placing a laptop inside his car and after a while, the Applicant came with another laptop and placed it inside the boot of his car. On Monday, there was a morning brief and he reported the issue of the lost laptop. The Applicant commented on what was important between the laptop and his friend’s lost cellphone. When they saw that the Applicant was not coming forward with the information regarding the lost laptop, a case was opened at the SAPS. The SAPS officials came to the school on Tuesday and they viewed the CCTV footage. The Applicant was then called in and he was asked about the laptop, but he flatly denied any knowledge of the laptop. However, after he was told about the CCTV footage, he requested to talk to the Applicant privately. It was only then that the Applicant confessed to have knowledge of the laptop.

11. Under cross-examination, he confirmed that he viewed the CCTV footage with Maweya on Saturday in the morning. He stated that by reporting the matter to SAPS was not to punish or to discipline the Applicant, but the objective was to say to the entire staff that they must come forward if they knowledge of the lost laptop. He stated that the reason the Applicant was the only one that was reported it was because the Applicant was seen on the CCTV footage carrying the laptop and putting it in his car. He submitted that he would not feel free to work with the Applicant if he were to be reinstated because the relationship has already been dented.

12. Mr M.L. Maimane (“Maimane”) stated that he was the Principal at Fr. Smangaliso Mkhatshwa Secondary School. He testified that the Applicant once came to his office complaining that Maweya fiddled with his cellphone. He stated that the Applicant submitted a formal grievance against Mawela, but the grievance form was not properly completed and the Applicant told him that he should ignore the grievance.

13. Under cross-examination, he stated that the Applicant reported the issue of his lost cellphone to him, but the Applicant wanted him to only reprimand Maweya. He stated that he had a very excellent relationship with the Applicant. He submitted that he only knew about the lost laptop on Monday and that there was already a report that was written in that regard.

14. Mr Irvin Xolani Mahlangu (“Mahlangu”) stated that he was an Assistant Educator in June 2021 at Fr. Smangaliso Mkhatshwa Secondary School and a third year LLB student. He stated that he knew Ms Moumakwe as an Educator at Fr. Smangaliso Mkhatshwa Secondary School and that he used to assist her with typing as she was unable to use the laptop. He also knew the Applicant from the school and that they used to go to the sporting events together. He stated that he did not have a very close relationship with the Applicant. They only greeted each other. He stated that he charged the laptop in the staff room on 18 June 2021 and he went to class to invigilate. After the invigilation, he went to check the laptop, but it was not there. He asked different Educators if they had seen the laptop, but to no avail. He even asked the Applicant on Saturday, but he knew nothing about the laptop. On Monday, he was told to go an open a case at Loate Police Station.

15. Under cross-examination, he stated that after invigilating, he distributed the scripts to different Educators and when he went to check the laptop, it was not there. He stated that according to him, the laptop was stolen and not taken by mistake.

The Applicant’s case

The Applicant testified in defense of his case and he also called three witnesses. All the witnesses testified under oath and in summary, their evidence was as follows:
16. Mahlobogoane testified that on 18 June 2021 he put his laptop at the back of his car and then a parent came to the school and he took the parent to Maweya’s office. After he was done with the meeting in Maweya’s office, he went to the staff room and he found a laptop on the desk and he took it. When he was about to go to his car, Mazibuko called him back to discuss the lost cellphone. After that, he went home. The following day (Saturday), he drove to work in a Renault Clio. As he had his laptop with him, he did not participate in the discussion about the lost laptop. He stated that if it was his intention to steal the laptop, he would have concealed it. He did not know that the laptop did not belong to him. He stated that the two Deputy Principals viewed the CCTV footage on Saturday, but still they did not bring it to his attention that he had the lost laptop. He submitted that he did not have a good relationship with the Principal and the two Deputy Principals. He testified that the only opportunity he was afforded to return the laptop was when there were Police Officers at the school. He testified that the Respondent acted inconsistently in applying discipline in that the video footage shows him, Seshweni and Mazibuko, but he was the only one that was charged and dismissed. He further stated that Maweya once stole his cellphone, but he was not disciplined.

17. Under cross-examination, he stated that he requested the SAPS officials to be excused so that he can ask the two Deputies about the CCTV footage. He confirmed that it was him that was seen in the footage holding the laptop. He disputed that he was part of the briefing session on Monday morning as he reported for duty after 08h00. He stated that he did nothing when he saw that somebody signed the attendance register for him on Monday morning. He testified that he did not see the laptop that was inside his car when he got to the car. He confirmed that the lost laptop was in his possession since Friday. He stated that if he was alerted earlier about the laptop, he would have declared.

18. Mr Sbusiso Ngobeni (“Ngobeni”) stated that he was a Police Officer stationed at Loate Police Station. He was instructed by his Commander to attend to a case of theft of a laptop at Fr. Smangaliso Mkhatshwa Secondary School. He went with his colleague to the school. The Deputy Principal took them to the camera room to view the CCTV footage. On the footage, they saw the Applicant putting two laptops in his car. The first laptop was put inside his car and the second one was put in the boot of his car. They then called the Applicant and the Applicant was informed that he was seen putting two laptops in his car and that the other laptop did not belong to him. The Applicant requested them (the officers) to excuse him and the Deputy Principals. After about a minute, they were called back in. The Applicant informed them that he uses two cars and that if he was seen putting the laptop in his car, then the laptop must still be inside the boot of his car. They went to fetch the laptop in Pretoria West and they found the laptop inside the boot of his VW Polo.

19. Under cross-examination, he stated that the Applicant requested him in March 2022 to write the statement on page 3 of Bundle A. He confirmed that the laptop was found inside the boot of the Applicant’s car. He stated that it was his opinion in his statement that the Applicant was not trying to steal the laptop as there were no dodgy movements as the Applicant walked around the school with the laptop where there were cameras.

20. Mr Colani Mazibuko (“Mazibuko”) stated that he was an Educator at Fr. Smangaliso Mkhatshwa Secondary School. He testified that on 18 June 2021, Seshweni lost a cellphone belonging to an Assistant Educator and he asked Seshweni what he was planning to do to replace the lost cellphone. Seshweni informed him that he would request the Applicant to buy the phone for him using his account. He stated that he did not see the Applicant during the briefing session on Monday. He said that Seshweni stated during the briefing session that he has also lost a cellphone after the Deputy Principal informed them that there was a laptop that was lost on Friday. He stated that the manner in which the matter of the lost laptop was handled was not fair because he heard rumors that he was also implicated, but he was never approached. He stated that Maweya and Kheswa were heard in their analysis of the CCTV footage implicating him, the Applicant and Seshweni.

21. Under cross-examination, he confirmed that he saw the CCTV footage after the Applicant was dismissed and that in the footage, it was the Applicant who was in possession of the laptop. He disputed that the Applicant was in the morning brief on Monday. He stated that the management was the source of the rumor that he was implicated in the lost laptop.

22. Mr Diokeng Seshweni (“Seshweni”) testified that on 18 June 2021, he lost a cellphone. Whilst he was busy marking the scripts, the Applicant and Mazibuko came to where he was and they discussed how he was going to replace the lost cellphone. He stated that the Applicant had a laptop with him. After their discussion, he left with the Applicant to Pretoria West in the Applicant’s car. On their arrival in Pretoria West, the Applicant changed cars and they went to Mabopane where the Applicant dropped him off. On Monday, Kheswa and Maweya were addressing the Educators about the lost laptop and he raised his hand to ask about the lost cellphone. He stated that the matter of the lost laptop could have been handled in a better way and further stated that it was only the Applicant that was disciplined.
23. Under cross-examination, he stated that Maweya said that they could only deal with reported matters. He stated that he did not report the lost cellphone because the owner has already reported the matter to Maweya. He confirmed that the Applicant was the one who was holding the laptop in the CCTV footage.

Analysis of evidence and argument

24. Section 138(7) of the LRA requires a commissioner to issue an award with his brief reasons. With this in mind, I will only restate the evidence and submissions that I find critical to assist me in arriving at a reasonable determination. However, I have considered all the evidence and the heads of arguments in the writing of this award.

25. I find it prudent to put it on record that I received an e-mail communication from a Willy Sekhwela (willysekhwela3@gmail.com) on 17 August 2022 regarding this dispute wherein, in brief, he stated that I must find in favour of the Respondent in my award and that I will be compensated the money that the Applicant would be paid should he be reinstated. I shared the e-mail with the management of the Council so that it could be made available to all the parties to this dispute. I must state that my award was not influenced in any manner by this e-mail.

26. According to Section 188(1) of the LRA, the dismissal of the employee by the employer will be unfair if the employer fails to prove that the employee’s dismissal was for fair reasons related to the employee’s conduct or capacity or based on the employer's operational requirements and that the dismissal was effected in accordance with a fair procedure.

27. Schedule 8, item 4 and 7 of the Code of Good Practice: Dismissal is the guideline for any person who is required to determine the procedural and substantive fairness of a dismissal. I am required to make "a moral or value judgment as to what is fair in all the circumstances" (See in this regard Metro Cash & Carry Ltd v Tshehla (1997) 1 BLLR 35 (LAC); and Numsa v Vetsak Co-Operative Ltd and Others (1996) 3 All SA 311 (A)). I have considered this Code as well as the landmark judgment of Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) and other jurisprudence when deciding this case.

28. On the procedural challenge, the issues that the Applicant raised as procedural defects do not find resort in Item 4 of Schedule 8 of the Code of Good Practice: Dismissal. Also, there was no evidence that was lead with regard to the procedural unfairness. I therefore find that the dismissal was procedurally fair.

29. I will now turn to the substantive unfairness of the dismissal. It is common cause that there was a laptop that was lost on 18 June 2021. From the CCTV footage, the Applicant is seen putting his laptop inside his car. Then, he left with a parent to meet with Maweya. After a while, about an hour or so, the Applicant is seen placing another laptop in the boot of his car. It is further common cause that the second laptop was found in the Applicant’s possession on 22 June 2021 inside the boot of his VW Polo in Pretoria West after the SAPS officials informed him that he was seen in the CCTV footage putting two laptops in his car. It is not in dispute that the Applicant denied any knowledge of the laptop since 19 June 2021. This is so because, in his version, the Applicant was not aware that he had mistakenly taken the laptop. It is further not in dispute that the Applicant was issued with the same laptop as the one that went missing.

30. Maweya and Kheswa testified that they viewed the CCTV footage on Saturday during the SIPP classes and they both testified that the Applicant was also at the school on that day. When they left the school on that day, they already knew that the Applicant had the lost laptop with him. They raised the issue during the Monday morning briefing to enable the Applicant to come forward, but this did not return a favourable results. I am mindful that the Applicant stated in his evidence in chief that he was not part of the briefing session. However, the Applicant did not put this version when Maweya and Kheswa were on the witness stand. The Applicant also did not take an issue with the insertion of an alleged forged signature in the Time Book under his name. Therefore, the reasonable conclusion that I can arrive at is that the Applicant was at the briefing session and he commented about the lost cellphone. The Applicant did not dispute the Respondent’s witnesses’ version that they had a good relationship with him. I find that it was opportunistic for the Applicant to only state in his evidence in chief that there was bad blood between him and the principals.

31. There is no dispute that the Applicant used a different car (Renault Clio) than the one (VW Polo) wherein he placed the laptops from Saturday to Tuesday. Ngobeni’s evidence that they found the laptop in the boot of the VW Polo on Tuesday was not disputed. Seshweni initially stated that he put his bag inside the Applicant’s car. However, when I asked questions of clarity, he confirmed that he put his bag inside the boot. Surely, when the Applicant and Seshweni got to Pretoria West, they opened the boot of the car for Seshweni to get his bag. At that moment, they should have realized that there was another laptop in the boot, but for reasons only known to them, they ignored the presence of the second laptop. I therefore find that the Applicant conduct in this regard was dishonest. He knew at that moment that he had two laptops in his possession.

32. On the issue of inconsistency, the Labour Appeal Court in Gcwensha v CCMA and Others [2006] 3 BLLR 234 (LAC) at paras 37-38) had this to say: “A claim of inconsistency (in either historical or contemporaneous terms) must satisfy a subjective element - an inconsistency challenge will fail where the employer did not know of the misconduct allegedly committed by the employee used as a comparator”. The Respondent did not discipline Maweya for allegedly stealing the Applicant’s cellphone. Maimane’s version that the Applicant only wanted him to reprimand Maweya was not disputed. Therefore, Maimane was not expected to report the matter to the District. The Respondent did not discipline Mazibuko and Seshweni on the issue of the laptop. I agree with Mbonde in his heads of arguments that the Applicant was the one who was seen carrying the laptop and driving away with it. I therefore cannot find any inconsistent application of the rule in this regard.

33. I will now turn to the appropriateness of the sanction. In the Constitutional Court judgment of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) it was stated that in approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record.

34. Schedule 8, Item 3(4) of the Code of Good Practice: Dismissal states that generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.

35. Schedule 8, Item 3(5) of the Code of Good Practice: Dismissal states that when deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee's circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.

36. When there is an element of dishonesty, one is therefore required to consider the issue of trust in this matter. I am guided by what our courts have stated in George Miyambo v CCMA & Others JA51/09 (Labour Appeal Court) par 13 -17:- “It is appropriate to pause and reflect on the role that trust plays in the employment relationship. Business risk is predominantly based on the trustworthiness of company employees. The accumulation of individual breaches of trust has significant economic repercussions. A successful business enterprise operates on the basis of trust.”

37. It is trite that trust is the cornerstone of an employer – employee relationship. It is not an invariable rule that offences involving dishonesty necessarily incur the supreme penalty of dismissal. I therefore find on a balance of probabilities that the Respondent succeeded in discharging its burden of proof. Consequently, I find that the dismissal was substantively fair. Thus, dismissal was the appropriate sanction under the circumstances.

Award

I therefore award as follows:

38. The Applicant’s (Mr Aubrey Mahlobogoane) dismissal was procedurally and substantively fair. The Applicant is not entitled to any relief.


Arbitrator: Themba Manganyi