ELRC634-21/22/23GP

IN THE ELRC ARBITRATION
BETWEEN:

JOHN HLONGWANE EMPLOYEE
and
DEPARTMENT OF HIGHER EDUCATION &
TRAINING/TSHWANE NORTH
TVET COLLEGE EMPLOYER


ARBITRATION AWARD

Case Number: ELRC634-21/22/23GP

Last date of arbitration: 13 September 2022
Receipt of closing arguments: 20 September 2022
Date of award: 30 September 2022

MATHEWS RAMOTSHELA
ELRC Arbitrator

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration hearing was held via Zoom online application on several days and finalized on 13 September 2022. The employee, who was presented at all material times, was represented by Johnson Mathidza, a union official of PSA. Pheeha Matjika, the employer’s assistant director, represented the employer. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

[2] I am enjoined to determine whether the employer has dismissed the employee and whether the dismissal, if established, was substantively unfair.

BACKGROUND TO THE ISSUE

[3] Common cause issues/facts

The employee was dismissed and at the time of his dismissal he was employed as a lecturer at Tshwane North TVET college. He was dismissed for misconduct relating to the dereliction of duties arising out of the marking of scripts and gross dishonesty of granting a member of the public access to the campus facility without approval. The existence of dismissal is agreed upon. Procedural fairness is not in dispute.

Issues in dispute

[4] Whether the employee committed the alleged acts of misconduct.


SURVEY OF EVIDENCE AND ARGUMENT

EMPLOYEE’S EVIDENCE

Mmapone Lizzy Nukeri (Nukeri) testified under oath as follows:

[5] She is employed by the college as the Head of Department (HOD) for business studies and was the employee’s HOD. The problem with the employee started when students had just written their internal examination and were to be in a meeting for feedback on their performance. It was on this day that students attended at her office to announce that when they attended at the employee’s office to check with him on their results, they stumbled upon their scripts and observed that on the cover page there were total marks /total score yet no indication of any marking on the remainder of the script.

[6] Upon the scripts being brought to her as per her requests, she also observed that there were two different modules, one for full times and the other for distance learners. She then called senior of full time for financial account, Mrs Maja and together with her they went through the scripts for full time students, which confirmed that indeed they were not marked. Maja confirmed that the scripts had marks on top but no marks on the inside.

[7] The witness then called Ms van der Walt, the senior lecturer for computerized financial systems, who checked the scripts for the subject and confirmed that they had marks on top but no marks on the inside to show that the lecturer had marked.

[8] Pursuant to the confirmations, as per her instructions, the scripts were taken by the two seniors to the employee with instructions for him to mark the scripts as it was the end of the assessment period and he was already behindhand. They were left with three days to submit to the department.

[9] She called the employee’s senior for distance learning, Ms Dumzela and showed her the scripts that had marks on top but no marking inside. She asked to check with the employee what the problem was as clearly there was no compliance. Dumzela took the scripts to the employee to deal with the matter. The witness then reported the issue to Mr Mbhulumenti, the campus manager and Ms Masemola.

[10] At that time the witness was the deputy invigilator and it was her responsibility to ensure that the campus had submitted the marks to the department. The campus also asked for a period of grace to submit on the following Monday as the date of submission was on that week’s Friday.

[11] She views the employee’s conduct as gross misconduct as he flouted the process of marking.

[12] On page 11 to 14 of Bundle A is the script in respect of Tintswalo Hanjane where the rating shows 60% marks for task 1. On page 12 the ticks he made are a total 21, but he added to make a total of 24, which does not make sense.

[13] On page 13 of the script are 18 ticks/marks but the employee did not apportion the marks, which shows inconsistency.

[14] On page 14 the marks as awarded by the employee are 50. However, when one counts the ticks he made, they amount to 48, which reflects incorrect counting by the employee.

[15] When one adds all the marks on all pages, the total is 92 and yet there is no indication of the total marks on the script that will indicate the percentage that the student has obtained.

[16] The impact of incorrect counting is that the student would be disadvantaged. Where there is inconsistency, the student would not be able to use the answers they got on the scripts, should the same question be asked again in the future.

[17] On page 80 of Bundle A is the ICASS Record sheet, which is a record mark sheet in respect of a lecturer that teaches a particular subject. Looking at the script for Hanjane, the employee did not comply with the ICASS guideline with the result that the verifier would not be able to use the mark sheet for verification purposes.

[18] The employee’s conduct amounts to no marking of the scripts because by just checking the scripts and counting done by the employee, during moderation whereby marking is confirmed, the moderator would ask that the whole bunch be remarked because of the inconsistency. She would inform the employee that the scripts need to be remarked.

[19] On page 15 to 18 is the script in respect of student Dimakatso Tjale and the employee allocated 60%. On page 16 according to the employee’s marking the student got 15 plus 2, which equals 17. But the total ticks add up to 13, which amounts to incorrect counting.

[20] On page 17 according to the employee, the student got 27 plus 2, which equals 29. But upon counting the total ticks are 26 and there is no basis for additional 3 marks.

[21] On page 18 the marks are 47 plus 2, which equals 49. However, the ticks counted total 46. The final mark on counting is 60%, but the total marks is 111.

[22] Given the actual marks as compared to marks allocated by the employee, this indicates a huge inconsistency on the part of the employee. It amounts to dereliction of duty as the employee did not do what is right and as expected of him.

[23] On page 19 to 22 is the script in respect of Tlhari Chauke. The percentage entered by the employee is 65. i.e. the student achieved 12 plus 2, totaling 14. Upon counting, the marks as allocated is only 11, which gives us additional 3 marks. On page 21 the employee allocated 31 plus 4, totaling 35. Upon counting, the total is 28. On pages 82 to 94 is the TVET ICASS guidelines and it contains all the instructions that all assessors must follow when assessing fully. All lecturers are aware of this legal document.

[24] The employee’s conduct amounts to neglect of his duties as he did not take reasonable care.

Bulela Dumzela (Dumzela) testified as follows:

[25] She is employed at the college as a senior lecturer and the employee was her subordinate, reporting to her. During the second semester of the year 2018 Nukeri called her to tell that the students came to her complaining about the employee’s conduct and she asked them to bring scripts that were allegedly not marked to her office. It was relating to Computerised Financial Systems. When they checked the scripts, they realized that there were only percentages on the cover page but on the inside there was no marking.

[26] It was then that she took all the scripts back to the employee with instructions for him to mark and submit back to him by not later than 16h00 on the same day. However, on that day the employee did not revert to her by 16h00 and even on the next day. The employee disappeared for four days, only to resurface on the fifth day at the time management was asking her for a report on what happened.

[27] It was then that together with the employee they went to management team comprised of Eunice Masemola and Mr Mbulumbethi whereby the duo asked for the scripts as evidence. When they checked the scripts and trying to compare with ICASS report sheet, it was observed that upon comparing the information on the cover sheet and inside the scripts they did not tally.

[28] The marking of scripts is done using the Internal Continuous Assessment (ICASS) guidelines. If the raw mark is not out of 100, you need to calculate to get to the percentage.

[29] On page 27 is the marking results in respect of student Thapelo Maakamedi. The cover page is not the cover page for the script. Upon calculation of the percentage the answer is 67% but on page 80 the student is given 88%. Looking at page 11 task 1 read with page 27, when the witness calculates the percentage, it gives 67%. However, when one goes to the mark sheet on page 80, the percentage written therein is 88%. There is a huge discrepancy between 67% and 88%. According to ICASS, due diligence was not done. This is what has been dubbed ‘ghost marks’, which indicates that marking was not done at all.

[30] Looking at the marks for student K Lekotoko, it also reflects another anomaly. The total marks on the script is 46, divided by 150, which translates into 37%. By contrast, as per page 80, the employee allocated the student 88%. This shows that the script was not marked as the percentage constitutes ghost marks in that they do not tally.

[31] The document on page 80 is the ICASS record sheet and it is the responsibility of the concerned lecturer to enter the information on the document, in this case being the employee. The information on page 80, which is submitted to the Department of Higher Education, is for a student to be assessed for progression to the next level.

[32] There are implications for submitting incorrect information to the department. Firstly, there would be a high percentage of students that will progress when they did not pass, while there would also be those that despite having passed, will not be progressed. Secondly, if the discrepancies are detected by Umalusi or the department, students would not be certificated. Furthermore, because students pay for tuition, there are financial implications. The reputation of the college could also be dented.

[33] On page 12 the employee allocated two ticks (marks) for ‘interest on loans’, however on page 44 he allocated one tick for the same item. He allocated one tick for advertising on page 12 but on page 44 he allocated two marks for the same item.

[34] On page 16 there is no mark allocation in respect of the following items: interest on loan, advertising and gross income. However, in respect of scripts for other students he allocated two marks for the same items, as for instance on page 28 where there is one tick for interest on loan as well as on advertising. Regarding the item ‘packaging material’, some students were allocated marks while others were not allocated any mark/s.

[35] The conclusion is that the was no marking as reflected by the inconsistency.

Motlakaro Eunice Masemola (Masemola) testified as follows:

[36] She is employed at the college as a campus manager. It was reported to her that the employee did not mark the scripts for computerized financial systems, which amounts to dereliction of duties as marking is the core business and fate of the students. She requested Nukeri and Dumzela to talk to the employee about marking the scripts but they brought back the scripts from the employee without being marked.

[37] Together with Mr Mbulumethi the witness talked to the employee and highlighted the serious implications of not marking.

[38] Unmarked scripts have dire consequences to the students as the impression would be that a student got a fair mark internally and upon sitting for the external examination it could be detrimental.

[39] As a TVET they administer national examinations and this slacking could compromise the integrity of the examinations or bring the department and the college into disrepute. As the centre, should the falsified marking be detected, there is a risk of the institution being cancelled. As a campus manager, she would have to account.

[40] On page 81 to 93 is the TVET ICASS guideline which is there to guide all academic staff when conducting examinations at the centre. All lecturers are trained and given files with the guidelines. Looking at page 93, the employee did not follow the guidelines as there is no consistency.

Evidence for the employee

[41] Only the employee testified for his case.

John Hlongwane testified as follows:

[42] The HOD sent students to collect scripts from his desk. On page 80 of Bundle A is ICASS record sheet and the marks are captured by Dumzela. He has never submitted marks as the scripts were taken from his classroom. The scripts that are the subject matter of the case were indeed marked.

[43] His charge deals only with computerized financial systems, and not with Financial Accounting N5.

[44] He was not yet done with marking the scripts when the students came and took them away from his table. The marking was still underway. None of the students came to ask for the scripts.

[45] He knows the name Tintswalo Hanyane even though not the person. The employer did not add other marks i.e. footer. He arrived at a total of 24 marks by counting all the ticks, from footer to header and all the ticks total 22. Then he added 2 marks for borders and arrived at a total of 24.

[46] It is true that on page 13 Question 2 there is no total for marks but this is because he was still busy with the marking when scripts were taken away from him.

[47] On page 14 the employer counted to 48 while the total is 50. This is because they did not count the footer at the bottom. The other mark was for wrap tags.

[48] On page 11 is the script in respect of Hanjane. The total mark is 96.

[49] On page 16 is the script for Dimakatso Tjale. He did not mark ‘interest on loan’ and ‘advertising’. The reason is that student did not use the correct formula when calculating.

[50] On page 17 the employer got total of 26 instead of 27 because they did not add a footer at the bottom. He added two marks for the borders, which gives a total of 29.

[51] On page 18 the employer arrived at a total of 47 but he arrived at 49 because he added a mark for wrap tag and a mark for the heading.

[52] On page 43 and 44 is the script for Kholofelo Lekotoko where he has awarded the student 2 marks for ‘advertising’ and 1 mark for ‘interest on loan’. Here he made an error in marking.

CLOSING ARGUMENTS

[53] As agreed, both parties submitted detailed written closing arguments, which I have considered and taken into account in arriving at my findings and conclusions. However, for the sake of brevity, details of the arguments shall not be repeated herein.

ANALYSIS OF EVIDENCE AND ARGUMENT

[54] Section 192(1) of the Labour Relations Act 66 of 1995 (the Act) directs that in any dispute of unfair dismissal the employee has to establish the existence of dismissal.

[55] Has the employer succeeded to show that indeed the employee’s dismissal was substantively fair? In my considered view, the employer has succeeded to establish sufficient facts from which one can deduce that the employee, as alleged, has committed acts of misconduct that are sufficiently serious to entitle the employer to fairly terminate the contract of employment between the parties. My reasons follow.

[56] From the evidence tendered by witnesses on behalf of the employer, as highlighted above, it is apparent that the employee was grossly remiss with his duties as a lecturer.

[57] From the onset, I must be quick off the mark to point out that given the nature of the employee’s work as well as his position, there is no room for lapses or undue delays in performing his tasks, particularly a task that determines the progression and/or certification of students.

[58] The employee has been accused and charged for dereliction of duties relating to the assessment of students. In a case such as this, time is of essence and as the evidence of Nukeri has indicated, at the time students stumbled upon the scripts that were either not marked or fully marked and upon her request brought to her office for observation, the employee was already behindhand in finalizing the marking of scripts. The witness has given unchallenged evidence that at that time, the campus was late in submitting the marks to the Department and had to ask for a period of grace to submit on the following Monday as the date of submission was on that week’s Friday. It was the end of the assessment period.

[59] The mere fact that the campus management was under constraints to request for an extension of time for submitting the marks is indicative of the employee’s gross neglect of duties. The employee’s failure to mark the scripts timeously amounts to serious misconduct.

[60] The employer’s witnesses gave unchallenged evidence that the scripts that were taken by students from the employee’s desk and brought to Nukeri’s office had marking anomalies: some of the scripts were not marked at all, while on others, the total and final mark and/or percentage were written on the top or outside, whereas upon inspection of the inside of the script, no marking could be sighted. This is in a case where the marking would ordinarily entail a more mathematical approach that is characterised by individual ticks attached to each and every item that has to be allocated a mark, as shown by both parties when navigating some of the sample scripts during the evidence presentation. The employer’s evidence in this regard was not challenged at all and the employee’s only excuse is that he was still marking the scripts when same were taken away from him.

[61] By way of taking samples of few scripts, as shown above, the employer has furthermore succeeded to establish that there was inconsistency in marking and incorrect counting of marks. The employee’s conduct in this regard amounts to failure to adhere to ICASS guidelines, as expected from all assessors.

[62] It was Dumzela’s unchallenged evidence that upon collecting the scripts from Nukeri, she instructed the employee to mark and submit the marked scripts by no later than 16h00 on that day, but instead the employee never reverted to her and disappeared for four days. This conduct shows how the employee, despite being given a lifeline, was still not willing to redeem himself and assist the campus to meet its deadlines to submit the scripts to the department, as required.

[63] As I have already stated above, given the nature of the employee’s duties and responsibilities, as well as the nature of the task at hand, time is of essence and the employee’s excuse that marking was still under way would not assist his cause because as per the evidence on behalf of the employer, the proper assessment of students involves more than just the lecturer’s marking, but entails moderation, entering marks on the relevant mark sheets, timeous submission of the marks to the department, as well sharing feedback with students. The employee could thus not set his own pace for marking in a manner that would inevitably be out of variance with the smooth and timeous running of the overall task of assessing students.

[64] The employer was at pains to present details that were aimed at highlighting that the employee even when given instructions to mark the scripts at the time he had already being late, did not mark properly and more particularly, the total marks did not tally with the individual marks allocated per item. Moreover, as already shown above, in some instances, the total marks and/or percentage on a particular script was out of variance with the total mark as per the ICASS mark sheet.

[65] For instance, in the case of K Lekotoko, the employee allocated the student 88% as per the ICASS record sheet, yet upon recalculating, it turns out that the correct percentage is 37%. Here we see conduct that has all the hallmarks of dishonesty and clearly the employee did not mark the script. That is why Dumzela, the witness for the employer, testified that this kind of improper allocation of marks has been dubbed ghost marking. The employee’s conduct herein is illustrative of someone that was trying his best to cover up for his failure to mark the scripts timeously and/or justify the total marks that he had already allocated without marking the script.

[66] The employer gave details of discrepancies in respect of other students. However, given that I have already indicated that the employee’s conduct aforesaid is sufficiently indicative of gross dereliction of duties, I would hazard that it was superfluous for the arbitration hearing to be unnecessarily burdened with these gory details. Suffice to state that the employee’s conduct herein is indicative of his desperation to mark the scripts at the time that it was no longer practicable to do proper marking, given the timeframe and the employee looked for a shortcut and in the process committed an act of dishonesty in that in some instances he allocated marks that were not earned by the student.

[67] The employer’s witnesses gave unchallenged evidence, which I accept as the truth, regarding the implications of the employee’s neglect of duties relating to the marking of scripts. The campus’s reputation and entitlement to assess students are at stake when lectures conduct themselves in the manner the employee did. Needless to state, it can never be acceptable that through the employee’s untoward conduct, students would not be correctly and fairly assessed, with the inevitable result that those that qualify for progression may be wrongly denied the opportunity, while students that are not competent would be allowed to be progressed and/or awarded certificates.

[68] In conclusion, I find that the employer has succeeded to prove that the employee has committed gross misconduct relating to the marking of scripts.

[69] During the arbitration hearing, it became apparent that the second act of misconduct relating to allowing an outsider to use the employer’s premises was misplaced. The employer conceded that the accusation is no longer relevant, especially given the evidence that was unfolding.

AWARD

[70] The dismissal of the employee was substantively fair.

[71] The employee’s claim of unfair dismissal is hereby dismissed.

Council Panelist: MATHEWS M RAMOTSHELA

Signed