ELRC376-21/22FS

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT THE FAVIUS MAREKE TVET COLLEGE (SASOLBURG)

Case No ELRC376-21/22FS

In the matter between

SADTU obo MAKHEKA MOSHE Applicant

and

DEPARTMENT OF HIGHER EDUCATION: FM TVET COLLEGE Respondent

ARBITRATOR: Monde Boyce

HEARD: 29 August 2022, 25; 26 & 27 October 2022

CLOSING ARGUMENTS: 02 November 2022

DATE OF AWARD: 09 November 2022

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC initially matter set the matter down for arbitration on 29 August 2022. The matter could not be finalized on the above date and adjourned to 25; 26 and 27 October 2022. On all the above dates, both parties attended the process with Miss Kedebone Frank, the Free State Deputy Provincial Secretary for the trade union SADTU, appearing for the applicant while Mr Mpe Ngcosane, the respondent’s Deputy Director: Labour Relations, appearing for the respondent.

[2] Both parties submitted bundles of documents and no issues were raised on the bundles. The proceedings were digitally recorded, and typed notes were taken.

[3] During narrowing of issues, it was agreed that on procedural fairness, the issue that would be raised on which determination would be made is that of whether, given that the applicant was a shopsteward, the employer consulted his trade union before instituting disciplinary action. On substantive fairness, parties agreed that evidence would be led on all the four charges the applicant was found guilty on and dismissed for. Parties requested to make written closing arguments, and I granted this request and directed that parties file their written closing arguments on 02 November 2022. Both parties duly filed their written closing arguments on the agreed date.

THE ISSUE TO BE DECIDED:

[4] I am required to decide whether the dismissal of the applicant was procedurally and substantively unfair and am required to grant the appropriate remedy in terms of Section 193 of the Labour Relations Act 66, 1995 as amended (“the LRA”) should I find in the applicant’s favour.

THE BACKGROUND TO THE DISPUTE:

[5] The applicant was employed as a Post Level 1 lecturer at the Flavius Mareke TVET College Sasolburg Campus and had been employed in this position since 06 February 2012. He was dismissed on 20 July 2021 following a disciplinary hearing where he was found guilty of four (04) charges. The four charges related to his allegedly having organized a meeting with staff without getting the necessary permission, addressing attending an interview with a national radio station, Lesedi FM without getting the necessary permission to do so and for bringing the institution’s name into disrepute and for neglecting his duties by leaving the campus for marking in Bloemfontein while leaving students without being invigilated and, lastly for being grossly dishonest by being absent without permission on three (03) consecutive dates while he indicated on the attendance register that he was at work on those dates. Unhappy with the sanction of dismissal, the applicant referred and unfair dismissal dispute to the Council for conciliation and, when conciliation failed, referred the dispute for arbitration. He seeks retrospective reinstatement as remedy.

SURVEY OF EVIDENCE AND ARGUMENT:

The Respondent’s Evidence

[6] The first witness called by the respondent was Mr Mathebela Jack Tema. He testified that he is employed by the college as the Deputy Principal for Corporate Services. He has been in this position since 2014 at the Loveday College in the Eastern Cape before being transferred to Flavius Mareke TVET College. He oversees all Human Resources related functions in the college including Labour Relations, Marketing, Information Technology and Facilities Infrastructure. He has known the applicant since he (Tema) started working for the Flavius Mareke TVET College. He learnt that the applicant was a shopsteward when he started working for the college and he engaged frequently with the applicant.

[7] Because he is dealing with Labour Relations matters, he became aware of allegations of staff not attending work and the applicant not invigilating. He also learned while in East London attending a conference in 2018 that there was a radio interview, and he was asked to listen to the radio interview on Lesedi FM where allegations were made against the college. He was tasked to conduct an investigation regarding these claims. There also were incidents where lectures in the engineering department lodged grievances led by the applicant. He had followed up on these grievances and gave feedback. The five charges preferred against the applicant emanated from the investigation he conducted.

[8] He had made recommendations to management and had sent correspondence to the trade SADTU’s Regional Secretary related to withdrawal of labour by staff at the college. On 13 September 2018 he had written another letter to Mr Sello Shasha who he was advised was the regional secretary. He had written the letter contained on page 19 of the respondent’s bundle believing that Mr Beeker was the regional secretary while it later transpired that Mr Shasha was actually the regional secretary. In the letter he wrote to Mr Shasha on 13 September 2018, he stated the subject matter as being the ‘Alleged Misconduct and Intention to Suspend-Union Official’. In that letter, he set out the alleged misconduct against the applicant, Mr Makheka. In the letter, the regional secretary of the trade union was called upon to, within 48 hours, provide the college with written representations on why the college should not institute disciplinary measures against the applicant. He did not receive a response after the letter he sent. He however persisted and finally managed to get hold of Mr Beeker. Proof of emails sent to the trade union is contained on pages 22 and 23 of the respondent’s bundle, and these emails were sent to the trade union by Miss Gloria Sefate who is the Human Resources Officer. He sought an audience with the union because he was aware that the applicant was a shopsteward and wanted to engage the union before any action could be instituted.

[9] Because the college received no response from SADTU and because time was running out, he took it upon himself to follow up on the correspondence that was sent to the union. He started asking around on who he can contact regarding the correspondence, and he was advised to contact Mr Beeker. Mr Itumeleng Beeker then responded via an email he (Beeker) sent on 21 September 2018 as contained on page 25 of the respondent’s bundle. In that email, Mr Beeker confirmed receipt of the letters with the subject matter ‘Alleged Misconduct and Withdrawal of Labour by Some SADTU members’, and he undertook to respond appropriately. Mr Beeker then sought a meeting with him. Mr Beeker had suggested in an email contained on page 25 of the respondent’s bundle that they meet on 02 October 2018, but he had then responded to say that he would not be available on that date. Mr Beeker had then suggested the date of 03 October 2018, and he (Tema) confirmed that date.

[10] The meeting took place on 03 October 2018. Present in that meeting was himself and Mr Beeker who came with Mr Sedi who was also from SADTU. In that meeting, they managed to sort out as such issues as logistics and who correspondence should be directed to going forward and how future dealings between the trade union and the college should take place. They also discussed the issue of the applicant’s involvement in the withdrawal of labour. He however never received representations from the trade union on the intended disciplinary action against the applicant. Time went by, and he became concerned that time was running out. He then decided to engage the applicant directly to bring the allegations to his attention. He had engaged the applicant on the correspondence he had sent to the trade union. He is aware of the letter sent by the college principal to the applicant as contained on pages 28 and 29 November 2018 where the principal set out the allegations against the applicant and called upon him to make representations. The applicant replied to the letter and made representations via email as contained on page 30 of the respondent’s bundle.

[11] Regarding Charge No. 2, the applicant held a meeting with lecturers during working hours. Trade union representatives are allowed to hold meeting with staff members and meetings are usually held after working hours so that there are minimum interruptions of the college’s operations. The procedure to be followed where trade union representatives want to hold meetings is that permission must first be sought from the principal. Permission was not sought for the meeting the applicant held with staff during working hours on 12 September 2018.

[12] The respondent’s second witness, Mr Thabo Letho, testified that in September 2018, he was the principal of the college and the accounting officer. He had been a principal since the inception of the college when it was declared a TVET college in 2003. He knows the applicant and the applicant was one of the lecturers at the college. He is no longer a principal and is now on pension. The applicant was involved in trade union activities. He (applicant) was elected to become one of the Council members.

[13] Regarding Charge No. 1, he became aware of the interview the applicant had with DJ Ba2cada on Lesedi FM. He was called by someone to listen to the radio interview. It was his first time of being invited to listen to a radio interview. He had not been made aware that the applicant was to speak to Lesedi FM on the 12 September 2018. Anyone who wanted to engage in an interview would have had to seek permission from him and he had to know first about such an interview. He was aware of the grievances that the applicant referred to during the radio interview as having been submitted to management on 01 August 2018. The college had responded to these grievances as it usually did.

[14] In the interview, the applicant made reference to important documents of the College Council which had been shared with him as the Council member during a Council meeting, and these documents dealt with Infrastructure Development and Infrastructure Maintenance Plan. The statement the applicant made during the interview as to an amount of R9, 1 million that had gone down to R1, 2 million was not true, and it was not true that the money was intended to address staff grievances as stated by the applicant during the interview. This money was meant to develop the college and not meant to deal with lecturers’ grievances. He took issue with some of the claims the applicant made on the radio. He was already concerned that a lecturer would not be in class but attending radio interviews. He further took issue with the issues of his management team that the applicant discussed and making defamatory statements in the interview. He had not given the applicant permission to give the interview and he would have sought permission from the Council if he needed to attend such an interview. The documents he made reference to were not documents the applicant had obtained permission from the Council chairperson to discuss during the radio interview.

[15] He also took issue with the statement made by the applicant in response to the radio DJ where he (applicant) stated that there was money spent with no work having been done. What the applicant said during the interview was not a reflection of what was happening at the college. The applicant put the name of the college into disrepute because none of the things the applicant claimed to have happened did happen. He felt angry about the averments because they were not true and painted the whole college in a bad manner. He had heard that the applicant had sent out an invitation to all media houses and which briefing was to take place at the college to discuss his (Letho) removal from the college and maladministration at the college. He was not aware of any maladministration at the college.

[16] None of the Council members were given permission to discuss Council documents with the public. There is a Declaration of Secrecy: Members of Council that all Council members are required to sign, and the applicant would have signed this declaration. The applicant failed to comply with the provisions of this declaration. The chairperson of the Council told him that he never gave any permission to any of the members of the Council to discuss Council documents with the media. The Code of Conduct for Educators at the college provides that educators at the college refrain from making derogatory remarks about his/her colleagues and from spreading malicious gossip. The Department of Higher Education and Training Recommended Ethics Charter for Public TVET Colleges provides that all employees and Council members of the college must ensure that their conduct protects and promotes the reputation and image of the college.

[17] Regarding Charge No.2 he was not aware of the meeting that the applicant called. He learnt from the campus manager that there was a meeting held at the campus. He had instructed that campus management take appropriate action to deal with the conduct.

[18] Dr Calvin Mabaso was called as the respondent’s third witness. He testified that he is employed by the University of Johannesburg as a Senior Lecturer in the Department of Industrial Psychology. He was appointed by the Minister of Higher Education and Training to be the Council Member of the college since 2014 and was a Deputy Chairperson and is still serving as a member of the Council. The applicant was a member of the Council, and they were also in the same committee of Employment Conditions of Service. The applicant was a Council member till 2019 when that committee’s term ended. Among the documents they would be required to sign would be a confidentiality or secrecy document. Page 117 of the respondent’s bundle contains a declaration of secrecy by Council members. This declaration serves to ensure that whatever is discussed in the meetings is confidential. This applied ever since he joined the Council. The secrecy declaration was a common standard document that all Council members were required to sign. Council members were prohibited from disclosing Council documents to the members of the public.

[19] They were made aware that there was an interview that the applicant had with a radio station in the Free Sate. He is aware of the College Infrastructure Maintenance Plan which was presented to the Council by the Finance Committee. The purpose of the document was to deal with the money allocated to the colleges and ring-fenced for maintenance. The documents were not dealing with the grievances as stated by the applicant in the radio interview but related to maintenance of the college. The applicant discussed the documents with the media in his personal capacity and was not mandated by the Council to speak on its behalf. Contrary to the claim by the applicant to the effect that out of the R9, 1 million received by the college, the college was left with R1, 2 million, the money had not yet been spent because the college still needed to get approval from the Council. No service providers had been appointed and the committees still had to discuss their plans and present them to the Council. That money had been allocated while no work had been done as claimed by the applicant was not true. The statement would lead to members of the public thinking that the college had misspent the money. The applicant had never raised any issue about the monies allegedly misspent and there were no objections when approval was made by the Council of the allocated money. The image of the Council and that of the college was brought into disrepute.

[20] Miss Johanna Hendrina Pienaar, was the fourth witness called by the respondent. She testified that she is the HOD of the Business Section in the college and had joined the college in 1995. She knows the applicant as a lecturer in the Engineering Studies. On 12 September 2018, she was in her office when the applicant and two colleagues came to her office. The applicant informed her that he would be having a meeting with engineering staff at F1. She had immediately asked if he (applicant) had permission, the applicant told her that she did not have to worry about it. She had then called the principal, Mr Letho who immediately told her to go to F1 and tell the applicant that he did not have permission to hold the meeting and that he (applicant) must immediately adjourn the meeting. She went to the applicant and called him outside and told him that Mr Letho had said he did not have permission and that he must stop the meeting. The applicant again told her not to worry about it and went back inside and continued with the meeting. She went back to inform Mr Letho of what the applicant said and went back to her office and continued with her work.

[21] Miss Gift Nikiwe Ngobeni, called as the fifth witness, testified that she is employed as the Assistant Acting Director: Curriculum Development and Implementation. In November 2019, she was the Head of Department (HOD) for the Engineering Department. The applicant was a lecturer in the Engineering Department. The applicant was directly reporting to the Senior Lecturer in the Engineering Department. Regarding Charge No.5, starting on the 25th of November 2019, she met every morning with all the lecturers in order for her to establish what they would be invigilating for the day since there were examinations being written. The applicant was however not in attendance on that morning. There were external monitors who were appointed to monitor files during examinations. The monitors would inspect the files between 07h30 and 12h00. The applicant was aware of this since she had communicated the presence of external monitoring with the lecturers. An email was sent on 01 November 2019 to all lecturers advising them that there will be external monitors. She also held morning briefings where she sensitized all the lecturers about same. The Senior Lecturer, Miss Antoinette Coetzee had come to her telling her that she was looking for the applicant but could not find him.

[22] On 26 November 2019 she had arrived early at college around 06h45 and when she entered the gate, the applicant was just leaving. She did her morning briefing for the day, but the applicant was not there. She had hoped that the applicant would return and be available for inspection of his files. They had looked for the applicant but could not find him. But the applicant had indicated on the attendance register that he was in attendance on the day. The applicant, on the attendance register contained on page 72 of the respondent’s bundle, had indicated that he reported for work at 06h30 on 25 November 2019 and signed out at 13h00. Exams usually end at 12h00 and the lecturers usually never leave later than 13h00 but are paid for the whole day. On 26 November 2019, the applicant wrote in the attendance register that he reported for work at 07h00. But this was not a true reflection because she had come earlier that day and saw him (applicant) leaving early in the morning. When she arrived at 07h30 on 27 November 2019, the applicant’s signature was already in the attendance register and the applicant had written that he had arrived for work at 07h00. The applicant had not attended the morning briefing of 27 November 2019.

[23] She had then decided to highlight on the register the applicant’s attendance from 25 to 27 November 2019. This was because on all the three days, they had looked for the applicant but could not find him at the campus. The applicant had been appointed as an invigilator during that time and had received the appointment letter. If the DHET monitors came to inspect the files and did not find them, they would not result the students, and this would impact students negatively. On 28 November 2019, the applicant was not invigilating, and he came to her office to sign as he was not in the morning briefing. The time was around 11h00 when the applicant came to her office without knocking and with the attendance register in his hand and pointing to where she had highlighted on the attendance register and asked her ‘What is this’? She told the applicant that she highlighted his name because he was not at work on the three dates. The applicant had then asked what she was expecting him to come and do on those dates because he was not invigilating. She had explained to the applicant that he was required to be at work irrespective of whether he was invigilating or not. But the applicant started shouting at him to a point where two other lecturers came to her office to understand what the commotion was all about. The commotion ended when she asked the applicant to leave her office.

[24] Immediately when the applicant entered her office, she could smell alcohol and she observed that the applicant acted out of turn. The applicant, under normal circumstances would usually put his point across without shouting as he did on that day. When exams are written, lecturers do not come to the college only when they are invigilating but are required to be at the college every day.

[25] On 22 November 2019, the Senior Lecturer, Miss Coetzee sent her a WhatsApp message sent by the applicant where he indicated that he was not going to be invigilating because he was going to Bloemfontein to do external invigilating. Miss Coetzee had then asked for her (Ngobeni) permission to secure an external invigilator to be appointed in the applicant’s place. External marking that the applicant was to do in Bloemfontein was supposed to be on the 23rd of November 2019 and not on the 22nd of November 2019. In his appointment as contained on page 89 of the respondent’s bundle, the applicant, as per paragraph 8 of the letter of appointment, was not supposed to leave students unattended with the sole purpose of going for external marking. The applicant was required to do the marking in Bloemfontein on 23 November 2019 and not on 22 November 2019. She had to pay the external invigilator appointed in the applicant’s place for 22 November 2019.

[26] The respondent called its sixth witness, Miss Anna Maria Coetzer, who testified that she had been employed by the college for more than 08 years and has been employed for six years in her capacity as a senior lecturer. The applicant was reporting to her in the Chemical Engineering and Science Department. Page 86 of the respondent’s bundle contains an email the college received from the DHET on appointment of external monitors. The applicant was appointed as an internal invigilator and the appointment was for every day. Lecturers were expected to have their files ready, and monitors could call for these files anytime and without giving prior notice. If the scripts are not in the files, the monitors could refuse to release the results. She only got the applicant’s file after the examinations.

[27] She does not remember the dates but there was a time when she had looked for the applicant but could not find him. It was on a Friday that she discovered that there was no invigilator for students and the applicant was not at the college to do the invigilation. She and Miss Ngobeni were looking for the applicant but could not find him on campus. She is aware of the altercation that took place at Miss Ngobeni’s office. She was in the hall and heard the applicant talking very loudly. She almost stumbled in Miss Ngobeni’s office but did not enter the office. But after the applicant left Miss Ngobeni’s office, she (Coetzer) and her colleagues entered Miss Ngobeni’s office to enquire if she was ok.

[28] Mr Thandokuhle Mhlongo was called as the respondent’s last witness. He testified that he is currently employed by the respondent as the Assistant Director: Maintenance and Facilities and joined the college in 2019. He is responsible for infrastructure maintenance of the college. He was initially appointed to manage the infrastructure grant. The DEHT had sent out communication to the colleges advising them that it would be disbursing grants for infrastructure purposes. At the time he started in February 2019, only three projects were approved. He is not sure of the exact figure that had been deposited in September 2018. The three projects that had already been approved were for an amount of R714, 552.00, and these projects were for 2018. He is aware of the interview the applicant did with Lesedi FM. The money was strictly for infrastructure purposes and not for staff grievances.

[29] The statement by the applicant during the radio interview to the effect that only R1, 2 million out of the R9, 1 million allocated was left was incorrect. The money allocated to the college would not have been spent in less than a month.

The Applicant’s Evidence

[30] The applicant, Mr Moshe Moses Makheka, testified that he was a SADTU shopsteward at the Sasolburg campus. Regarding Charge 2 of gross misconduct, on 12 September 2018 the engineering studies lecturers were invited by the business studies lecturers to come to the business studies side. The invitation was not extended to him only but to all the other lecturers. He was not aware of the venue of the meeting and he went to the HOD’ s office (Miss Pienaar) to ask about the venue of the meeting. Miss Pienaar advised them where the meeting was going to be held and had asked about whether they had permission to hold the meeting. He and the other lecturers had proceeded to the venue where the meeting was to be held. On arrival at the venue, they found people already seated, and they joined them. As a shopsteward, he felt that he had to guide his fellow members on avoiding being tempted to do things that would land them into trouble.

[31] There was a time when Miss Pienaar called him, and he had gone out to listen to what Miss Pienaar had to say. Miss Pienaar told him that the principal said they did not have permission to hold the meeting and that they must disband. They thereafter received letters from the principal’s personal assistant instructing them to disband. They disbanded and left the meeting after receiving the letter.

32] Before that day, there had been a radio interview held by the SRC president with the same radio station he had an interview with. A decision had also been taken for an interview to be held and he and another colleague, Mr Serake, were nominated to attend the radio interview and he attended the radio interview in his capacity as a shopsteward. The interview took about fifteen minutes. He disputed the statement that he said the principal of the college, Mr Letho, was corrupt. He was not speaking on behalf of the college or the Council. He did not see the need to ask for permission since he was not representing the two bodies. The figures he mentioned in the interview are as they appear in the infrastructure maintenance plan documents, and he did not misrepresent the facts. He did not even state that the money was used, he had said the money was allocated. He had, before the radio interview, received an email that was sent to all the staff members and the SRC where the very documents he mentioned in the interview had been shared. He did not source the documents to share with everyone. The documents had been shared with everyone else.

[33] The list of the demands and the grievances that lecturers had lodged emanated from the input they were required to give. He disputed that he organized the radio interview and further disputed organizing the meeting.

[34] Charge 4 related to his alleged gross negligence. On 21 November 2019, Miss Anna Coetzer sent him a WhatsApp message saying to him she was aware that he was marking in Bloemfontein and wanted to find out about the memo for the markers. On 22 November 2019 he had sent a WhatsApp message early in the morning informing her (Coetzer) that he was going to Bloemfontein to mark. He disputes that Miss Coetzer did not receive the message on time. He believed that Miss Coetzer read the message later for reasons known to her. He did not receive a call notifying him that there was no one to replace him to invigilate. The version of his having left students without invigilating them is not true.

[35] Regarding Charge 5 where he is alleged to have been dishonest, the place he stays at is closer to the college and at times he would arrive early. He was not invigilating on 25, 26 and 27 November 2019. He would come in early for work and when he did not invigilate, he would be at work as per his contract of employment. His invigilating services were not needed, but he nonetheless reported for work. He disputes that Miss Coetzer and Miss Ngobeni looked for him. Where Miss Coetzer was looking for him, she would tell him that she was looking for her. It is not true that the subjects he was teaching were written on the above-mentioned dates. That they were looking for a file was just a cover-up. It is not true that they were looking for his file. The version of Miss Coetzer and Miss Ngobeni was a mere fabrication. He had previously lodged a grievance against Miss Ngobeni. When he lodged a grievance against Miss Ngobeni, such grievance formed part of the Charges 4 and 5 that he has been dismissed for. The respondent used the grievance he lodged to prefer charges against him.

[36] The applicant’s witness, Miss Lomile Joyce Mbambo, testified that she is currently employed as a lecturer in Business Studies. She knows the applicant. She knows the applicant to be bold and courageous and it was these attributes that made other lecturers elect him as a shopsteward. It is not true that the applicant organized a meeting on 12 September 2018. As lecturers, they agree during the morning briefing to meet during lunch time. The applicant and other lecturers were called into the meeting in order to discuss the grievances that they had. The applicant did not come alone to the meeting but came with other lecturers including Mr Thobejane and others. During the lunch meeting, they had chosen two lecturers to go and engage the principal, Mr Letho. They further agreed to get the media involved because they wanted to expose the college for whatever they were accusing the college of. The felt that the applicant was in a better position to represent them.

[37] There was no money deducted from them from engaging in that meeting. She is a chief marker and was part of the team that went to mark. Their marking started on 22 November 2019. When going to mark, they receive the release letters once, and they would take the release letters to the campus manager who would sign them. They were required to report at the marking centre at 14h00 on Friday 22 November 2019. She found the applicant already there.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[38] I hasten to mention that parties did not make reference to case law in their written closing arguments. But be that as the case may, I deemed it important to refer to case law for purposes of bringing to the awareness of the representatives key principles that are applicable to assertions they made, and I did so to the extent they appeared to be unaware of or ignorant of these principles. Trite to mention from the onset is that, once existence of the dismissal is established in terms of Section 192(1) of the LRA, the employer must prove that dismissal is fair as provided for in Section 192(2). Accordingly, because dismissal was not in dispute, it is the respondent that bore the onus. Courts have now extensively dealt with the question of onus and one case in particular where the principle on onus was set out is that of National Employer’s General Insurance v Jagers ; where the Court held as follows:

“It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests…..In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. if however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.” (my underlining)

[39] Also, in Stellenbosch Farmers Winery Group Limited and Another v Martell et Cie the Court held that:
“…To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities…. In the light of assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.” (My underlining).

[40] While provisions of Section 192(2) are peremptory, Courts have held, particularly in the case of Compass Group Southern Africa Ltd v CCMA and Others that the employer need only show that on all the evidence presented by both parties, its version is more probable than the employee’s version. In other words, there is no requirement that the employer must prove its case beyond reasonable doubt as would be the case in criminal proceedings.

[41] In deciding the question of whether the applicant breached a rule, I considered the evidence led by the witnesses called by the respondent. In respect of charge No.1, it is my finding that the applicant did breach a rule. In the first place, it is common cause that the applicant did attend the Lesedi FM radio interview and that the college or the college Council did not mandate him to do so. While, as part of his defense, firstly the applicant testified and argued that he attended the radio interview as a SADTU leader, secondly, that he, was mandated to do so by staff members (a collective as he referred to them as such) and thirdly, that he did not need permission to hold the interview, I find this assertion not to hold water.

[42] Before being a shopsteward, the applicant was a lecturer and an employee of the respondent and, as such, subject to its rules and standards. He was not a free agent. He accordingly had the primary responsibility of acting in the best interests of the respondent and conduct himself in a manner that would not put the respondent’s name into disrepute. Also, as a member of the Council, he had a greater responsibility of protecting the good name of the college. Holding the interview in the first place, and the utterances he made during the interview did not serve this objective. The then principal of the college, Mr Letho and the deputy chairperson of the college Council, Dr Mabaso, both testified that neither the principal nor the college Council sanctioned the radio interview the applicant had. The assertion by the applicant that he attended the radio interview on a mandate by the collective falls to be rejected because the content of the interview did not deal with staff grievances but focused on painting the college in a bad light including statements that were completely unfounded and not supported by facts.

[43] As an example, the applicant gave the impression that the amount of R9. 1 million allocated by the college was meant to deal with staff grievances. But this amount was never, as far as evidence by Mr Letho, Dr Mabaso and Mr Mhlongo went, meant for such purposes. It was meant for infrastructure maintenance. The applicant went on to state in part that: “…out of R9.1 million that was deposited in the account between 08th August 2018, only R1.2 million was left by 12th September 2018, only R1.2 million was left.” This statement was of course completely misleading if one has regard to the evidence of the three witnesses that I refer to above.

[44] For starters, the amount of R9, 1 million allocated to the college was ring-fenced. It was not meant for any other purposes than that of the college infrastructure maintenance. In other words, even if the college wanted to, it could not use these funds for any other purposes than that intended for when the DHET made the allocation to TVET colleges. The applicant possibly was aware of this fact. He sat as the member of the college Council and did not dispute evidence by Dr Mabaso that he (applicant) sat in meetings where the R9, 1 million and the infrastructure maintenance plan document was discussed. Secondly, the statement the applicant made was not true because the funds had not yet been used at the time he (applicant) attended the radio interview. Evidence by Mr Mhlongo, and which evidence was not gainsaid by the applicant, was that only three projects to the amount of R714, 552.00 had been utilized. In that regard, the utterances by the applicant during the radio interview to the effect that the money had been spent but no work was done were devoid of truth.

[45] Also, the utterances by the applicant suggested that lecturers had grievances that the college was refusing or failing to attend to. But such is again devoid of truth if one has regard to the fact, attested to by the applicant’s own admission, that the then principal, Mr Letho, mandated Miss Chechile to attend to the grievances. The applicant did not dispute that the grievances were being attended to and actually confirmed same during cross-examination when he was pointed to the string of emails between Miss Chechile and lecturers’ representatives at the time. In the radio interview, he referred to instances where they had interactions with Miss Chechile and the responses she gave, including where she (Chechile) stated that she was awaiting responses from various departments. His utterances during the radio interview suggests that the college was actually dealing with the grievances raised and at no point did the applicant testify that he went to the radio station because a deadlock had been reached and that the college was outrightly refusing to attend to the grievances. The pace at which the grievances were being attended to might not have been to the staff’s liking but this was not reason good enough for the applicant to paint the college’s name in the manner that he did during the radio interview.

[46] It is my finding that the charge was not misplaced because, in my considered view, even if the applicant was mandated by a collective as he asserted, he, having not only been a shopsteward at the time but also a member of the Council, was in a better position to point the collective to the true facts. His failure to do so appears to have made other staff members labour under the mistaken belief that nothing was done about the grievances and that there was possibly maladministration and misuse of the allocated funds. This view is not misplaced if one has regard to the testimony of the applicant’s witness, Miss Mbambo, who appears to have genuinely believed that the college had a case to answer.

[47] On the charge of having organized and held a meeting on 12 September 2018, it is my finding that the applicant did breach a rule. It is common cause that the meeting of 12 September 2018 was not sanctioned by management. The only difference in versions presented before me is that the respondent points to the applicant having organized the meeting while the applicant’s version, on the other hand, is that he did not organize the meeting but was invited to the meeting.

[48] Having heard evidence, I reject that the applicant did not organize and address the meeting. The evidence of Miss Pienaar suggested that the applicant was the one who organized the meeting. Miss Pienaar stated, during her testimony, that the applicant came to her office and told her about the meeting he was going to hold with the engineering staff at F1. While the applicant did not dispute that he went to Miss Pienaar’s office, his version was that he went to Miss Pienaar’s office to enquire about the venue of the meeting. He however, during cross-questioning of Miss Pienaar, failed to point out to her that she was wrong when she stated that he (applicant) had gone to her office to inform her about the meeting that was to be held at F1. While the applicant testified that it was Miss Pienaar who showed him where the meeting venue was, he failed to put this version to Miss Pienaar.

[49] Furthermore, the applicant did not dispute that Miss Pienaar went to the venue of the meeting and called him out to inform him that the then principal, Mr Letho, wanted the meeting disbanded because he (applicant) had no permission to hold the meeting. The applicant did not provide an explanation on why he had to be the one called out by Miss Pienaar to relay the principal’s message and further did not explain why he failed to point out to Miss Pienaar that he was not the one addressing the meeting and direct her to the person who was addressing the meeting. The applicant did not put a version to Miss Pienaar to the effect that he was not the one addressing the meeting and that as such, he did not need to respond to the message relayed by the principal.

[50] Miss Pienaar’s version was that when she called the applicant out and relayed the message from the principal, the applicant told her not worry about it. His witness, Miss Mbambo, could not assist in this regard because she was not present at Miss Pienaar’s office when the applicant went to inform her of the meeting. It was also not her version that she heard the message that Miss Pienaar relayed to the applicant when she called him out of the meeting, and the response he gave to Miss Pienaar. It is my finding that the applicant was the one who organized the meeting and that he was not merely invited to the meeting as he claimed.

[51] Regarding the charge of gross negligence for having left students unattended when he was supposed to invigilate, the applicant did not dispute that he did not invigilate students on 22 November 2019. His defense was that he was scheduled to be in Bloemfontein at 14h00 on 22 November 2019 for external marking that was to take place on 23 November 2019, and that he had sent a message to his HOD, Miss Coetzer advising her of same. While Miss Coetzer did not dispute having received the WhatsApp message, it was not her version that she had, except for the release letter, given permission for the applicant to leave a day before the external marking in Bloemfontein. If she was aware that he was to leave a day earlier to do external marking, she would have arranged for his replacement and would not have made the request for a replacement from Miss Ngobeni only on the day examination the applicant was supposed to invigilate was being written. Evidence before me points to both Miss Ngobeni and the applicant’s line manager, Miss Coetzer, not being aware that he was not going to invigilate on 22 November 2019.

[52] Paragraph 2.6 of the release letter issued on 15 November 2019 clearly states that the applicant would not leave classes unattended to do external marking. I do not have any plausible explanation by the applicant on why he failed to abide by this express condition of his release for the external marking. Accordingly, I find the applicant to have been grossly negligent of his duties and cannot find that the respondent erred in finding him guilty of this charge.

[53] Insofar as the fourth charge of gross dishonesty, I am satisfied that the respondent has proven this charge and that the applicant did breach a rule. Evidence by two of the respondent’s witnesses, Miss Ngobeni and Miss Coetzer, was that on all the three dates of 25, 26 and 27 November 2019, they had looked for the applicant but could not find him. While the applicant disputed that he was not at the campus as stated by Miss Ngobeni and Miss Coetzer, he failed to provide a plausible explanation on his exact location on the three dates. While the applicant cast doubt to their version, arguing that they could have called him, it is my finding that the two witnesses were not obliged to do so and that the applicant, having failed to attend the morning sessions on all the three dates and having not been available at the campus, was the one who should have explained himself.

[54] I had no reason to doubt Miss Ngobeni and Miss Coetzer. I found them to be credible witnesses and they corroborated each other as to the events that unfolded on the three dates and how they had gone about looking for the applicant without success. The applicant did not point to any history of animosity that would cause the two witnesses to lie. If anything, the relationship between him and the witnesses appeared to have been good, until the date the applicant confronted Miss Ngobeni in her office about her having highlighted the three dates on the attendance register. But Miss Ngobeni does not appear to have taken the incident personally and appears to have been dismissive of the confrontation because he believed that the applicant could possibly have been intoxicated. This was evidenced by her stating that the applicant acted out of turn and that he was not his usual self. She painted the applicant as a reasonable person who would engage in a proper argument as opposed to being confrontational when disagreeing or not happy with something. Miss Coetzer also, except for the incident of the applicant having gone for external marking and leaving the class unattended, appeared to have no issues with the applicant. I could thus not find their versions to be a mere fabrication.

[55] The applicant, on all the points he raised in defense, has failed to convincingly prove that the respondent’s version should not be believed. I deem it trite, in support of this view, to refer to the important principle set in the Compass Group case where the Court held that:

“…..once the employer provides prima facie proof of the misconduct as alleged, the evidentiary burden shifts to the employee to prove his own defense. If the employee fails to put up a defense or fails to prove his defense, the employer’s prima facie proof of misconduct becomes conclusive proof, and the employer has then discharged the overall onus that always rested with it.”

[56] It is my finding that dismissal, in the circumstances as stated in the preceding paragraphs was warranted. The applicant’s conduct of engaging in a national radio interview and discussing confidential college documents in public and painting the college in the bad manner he did in the interview was of such a serious nature that the sanction of dismissal was not misplaced. He was a shopsteward at the college and was a member of the Council and was accordingly expected to have known better. Also, I find the respondent to have proven all the other three charges preferred that the applicant was dismissed for, and this find dismissal to be warranted a sanction. I must mention, as I earlier stated, that the applicant was not a free agent. He was an employee and had a contract of employment with the respondent. Rules are set down by employers to keep employees in check and to ensure that they do not conduct themselves in a manner that is unbecoming, and are seen to conduct themselves in a manner acceptable to employers.

[57] The applicant may have been a shopsteward and thus entitled to advance fellow employees’ interests, but same did not entitle him to behave in the manner that he did. He still needed to exercise his right to act on behalf of fellow employees within the bounds or confines of what was acceptable to the respondent in terms of its rules of conduct, an example being that he should have desisted or advised employees against holding a meeting during working hours and without the express permission of the employer and should have resisted acceding to the request to organize and attend a radio interview in which he painted the respondent’s name in a bad light. To qualify this point, I should perhaps refer to what the Labour Appeal Court (LAC) stated in BIFAWU and another v Mutual and Federal Insurance Company Ltd when it stated as follows in paragraph [20]:

“I do not agree with the view of the court a quo that the fact that he was acting in his capacity as a shop steward serves to ‘mitigate’ conduct which objectively is unacceptable. Notwithstanding the position to which he has been elected, a shop steward remains an employee, from whom his employer is entitled to expect conduct appropriate to that relationship.” (My underlining)

[58] With regards to the alleged procedural unfairness, the applicant’s version and argument was that the respondent failed to consult his trade union as provided for in Schedule 8 of the Code of Good Practice: Misconduct. Evidence before me however points otherwise. The respondent’s first witness, Mr Tema, detailed the efforts he made to get the trade union officials he wrote to, to make representations on why disciplinary action should not be taken against the applicant. Mr Beeker and Mr Sedi, who are both trade union officials, finally met with him where the issue of unprotected industrial action at the college was discussed. But the trade union officials did not engage him on the issue of the applicant’s intended suspension or disciplinary action. As a last resort, Mr Tema had directly wrote to the applicant, affording him an opportunity to make representations on why he should not be disciplined. The applicant did not dispute this version. I can accordingly not find that consultation did not take place as envisaged by the Code.

[59] But even if I were to find that the respondent did not comply with Item 4(2) of the Code, I would still find that same would not necessarily render the dismissal procedurally unfair. In NCBAWU v Masinga and Others the Court held that an employer’s failure to comply with the Code is not regarded as fatal on the ground that Schedule 8 is not part of the law but merely a guideline of good practice. In this regard, the Court held that:

“The fact that the Employer did not comply with Item 4(2) did not render the process defective. The Employee was however still entitled to have a fair hearing.”

[60] Restating this principle, the LAC in the BIFAWU case cited above held that failure to consult with the union in terms of Item (4)(2) of the Code before taking disciplinary action against a shopsteward would not automatically render a dismissal procedurally unfair as long as there is no prejudice suffered by the employee. In any event, no evidence was placed before me as to prejudice that the applicant suffered because of the alleged failure by the respondent to consult his trade union. In any event, I can therefore not find that the dismissal of the applicant was procedurally unfair.

[61] I therefore, in the premises, deem it reasonable to make the following award:

AWARD

[62] The applicant’s dismissal is procedurally and substantively fair, and he is thus not entitled to the relief he sought.

[63] The application is accordingly dismissed, and the Council is directed to close the file.

Monde Boyce
Panelist: ELRC