ELRC 653-21/22FS

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT FLAVIUS MAREKE TVET COLLEGE (KROONSTAD CAMPUS)

Case No ELRC 653-21/22FS


In the matter between

JOEL MAKOLI APPLICANT

and

DEPT. OF HIGHER EDUCATION & TRAINING RESPONDENT

ARBITRATOR: Monde Boyce

HEARD: 30 August 2022, 31 September 2022 & 01 October 2022, 11, 12 & 13 January 2023

CLOSING ARGUMENTS: 19 January 2023

DATE OF AWARD: 27 January 2023

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
[1] The ELRC set the matter down for arbitration on the above-mentioned dates and was concluded on 13 January 2023. On the mentioned dates, arbitration sat at the Flavius Mareke TVET College’s Kroonstad Campus. Mr Mbuyiselo Frans, a trade union official from the trade union SADTU, appeared for the applicant who was also in attendance. Mr Mpe Ngcosane, a Deputy Director: Labour Relations, appeared for the respondent.

[2] Both parties submitted bundles of documents. The proceedings were digitally recorded, and typed notes were taken. There was an interpreter present who assisted witnesses who preferred testifying in their own languages. At the conclusion of the process, parties requested to make written closing arguments and both parties duly filed their written closing arguments.

THE ISSUE TO BE DECIDED:
[3] I am required to decide whether the applicant’s dismissal is procedurally and substantively unfair and am required to grant the appropriate remedy in terms of Section 193 of the Labour Relations Act 66 of 1995 as amended (the LRA) should I find the dismissal to be unfair. employee is guilty of the two charges preferred against him by the respondent, and to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:
[4] The applicant was employed as the Post Level 3 Lecturer and was the Head of Department (HOD) at the Flavius Mareke TVET College in Kroonstad and had held this position since 21 January 1998. He earned a salary of R489, 312.00 per annum. He was dismissed for misconduct after two charges were preferred against him, with the first charge being that of having allegedly sexually harassed a student and the second charge being that of gross dereliction of duties. Unhappy with the dismissal sanction the applicant referred a dispute to the Council for conciliation. The dispute could not be resolved at conciliation, and the applicant referred the dispute for arbitration.
SURVEY OF EVIDENCE:

Employer’s Evidence

[5] The first witness called by the employer was Mr Matemela Jack Tema, who testified that he is currently employed by the Flavius Mareke TVET College. He has known the applicant since he started working for the college in 2016. As the Head Of Department (HOD), the applicant had contact with students. People who do not have contact with students is the Campus Manager. Lecturing staff would be those who have contact with students and who offer learning to students. Post Level 3 falls under lecturing staff. With the support staff, their disputes are referred to the GPSSBC and lecturing staff to the ELRC. The applicant was paying a levy to the ELRC. Where the applicant was charged with misconduct, ELRC Resolution 1 of 2013 would apply. The PSCBC Resolution 1 of 2003 would not apply to the applicant.

[6] He had previously dealt with allegations of sexual misconduct against the applicant, and he heard that at some stage the former principal, Mr Letho, had to deal with similar allegations against the applicant. The first instance he had to deal with such misconduct was when a certain lady who was an intern at the college, and who had to complete 18 months term to conclude her certificate, made the allegations. The person’s name was Miss Lehlakwane. An investigation was conducted to establish the truthfulness of the allegations. The allegations were found to be true, and the applicant was given a sanction of a final written warning for that conduct. The applicant had accepted the final written warning. With the first incident, the college opted not to go through the formal disciplinary hearing route. The applicant was found guilty of the charge of sexual harassment including that of gross dereliction of duty. Even if the applicant was not found guilty of the second charge, the charge of sexual harassment was serious enough for the applicant to be dismissed because of the prevalence of gender-based violence in the country. They had a lot of enquiries from stakeholders, being students, labour and political formations about the applicant’s conduct, hence the dismissal. The college did not have influence on the outcome of the disciplinary hearing as the hearing was presided over by an independent chairperson.

[7] The disciplinary hearing was chaired by Mr Phaka who was appointed in terms of Resolution 1 of 2003. He was appointed in terms of this Resolution because of how the college did things then. It was an error on the part of the college.

[8] The second witness called by the respondent was Mr Malesela Doctor Phaka. He testified that he is currently employed by the Central Johannesburg TVET College as the Deputy Principal: Corporate Services. He chaired the disciplinary hearing of the applicant. At the time, he was employed by the Western TVET College, and the appointment letter stated that the applicant was employed as a lecturer. According to his knowledge, there are two collective agreements, the PSCBC Collective Agreement and the ELRC Agreement. Having been informed that the applicant was a lecturer, the applicable resolution was that of the ELRC Resolution 1 of 2013. Both the ELRC and PSCBC Collective Agreements have the same purpose. Page 142 of the respondent’s bundle contains his summary of findings of the applicant’s disciplinary hearing that he chaired.

[9] His decision was based on many factors. He did consider mitigating factors presented by the applicant. The applicant had referred to his personal circumstances including the bond he was paying. He did take all of the factors into account, but he considered dismissal to be appropriate given the nature of the offence. He took into account the length of experience and concluded that the applicant should have known better. He also considered the manner of the respondent’s business, being that of learning and training and found that the applicant acted in such a way that undermined the laws of the country. He also considered the work that the applicant was doing, being that of an HOD, and should have known better. He also considered how the conduct by the applicant would impact on the section he was in charge of. He also considered that the applicant had been reprimanded on two previous occasions about the same conduct and was given final written warnings which he had not disputed. He concluded that the applicant was not fit to work in the sector as that would impact negatively on the college. The sanction of dismissal was a fair sanction in the circumstances.

[10] While he made reference to PSCBC Resolution 1 of 2003 and while he made an error in this regard, the principle is the same in terms of dealing with the misconduct the applicant was charged for. Even if the applicant was charged in terms of a different resolution, the outcome would still have been the same, given the gravity of the misconduct. The applicant was correct in referring his dispute to the ELRC.

[11] The third witness, Miss Vuyelwa Mokuoane, testified that she is currently employed by the college and has been working for the college for 17 years. She is employed as a Post Level 1 lecturer. She knows the applicant and had worked with him when they were both lecturers and they were in a romantic relationship. She is aware of an incident involving a student, Miss Martha Litali. She was in her class and was busy on her laptop when she saw Nthabiseng (Martha) and Dipuo who used to be an intern at the college who were standing by the door facing her direction, and she had indicated for them to come inside the class. As they approached her chair, Dipuo said to her “Mother, that thing has happened again.” She asked Dipuo what had happened and when Dipuo started saying “Ntate Makoli” she immediately asked her to go out with her because there were students in class.

[12] She had taken the two ladies outside because she thought they would be talking about an incident involving Dipuo, who was a student at the college and had been one of the interns. Dipuo had at some stage told her that the applicant had sexually harassed her. She does not know how that case ended. She had not taught Dipuo since she last taught her while she was at her class. Martha had told her that she received a call from the applicant’s office and when she got to the applicant’s office, the applicant told her (Martha) that she needed to cancel two of her subjects that were at Level 4 and repeat the ones that were at Level 2, to which Martha responded that she could not afford to cancel the Level 4 subjects because she relied on the bursary that funded the subjects. The applicant then told her to come later and see him in his office. When she got to the applicant’s office the second time in the afternoon, the applicant started caressing her as they were talking until he got aroused. The applicant then said to her “Do you see what you have done” and took out his private part. She (Makouane) did not believe what she was hearing and asked Martha if she was sure it was the applicant who did that and whether she had seen the applicant’s private part, to which Martha responded in the positive. She then took both Martha and Dipuo to another lecturer, Miss Maseko.

[13] Miss Maseko was having her class and she called her out of the class. When Miss Maseko got out, she asked Martha or Nthabiseng to relate what she told her. When Nthabiseng told Miss Maseko what had happened, Miss Maseko said it was too much for her to handle what she was hearing. She (Miss Makouane) had not wanted to get involved because she had heard that the applicant had alleged that she (Mokouane) and Maseko were after male lecturers. She then went to Miss Louwrens office and told Miss Lourens what Nthabiseng had told her. She then gave Nthabiseng’s name to Miss Lourens who said she would call the student. Miss Louwrens is the late Campus Manager. She had no reason to testify against the applicant. They had a good romantic relationship and even when their relationship ended, they were still on good terms. She can only remember one incident where they had a disagreement with the applicant where the applicant did not take kindly to her comparing his leadership with other academic heads at other colleges. But that was the only incident she could recall.

[14] Miss Mamoleko Susan Maseko was called as the respondent’s fourth witness. She testified that she has been employed by the college since 2005. She is currently employed as the Post Level 1 lecturer. She knows the applicant and had worked with him when she was transferred to the Kroonstad college campus. She knows the student Nthabiseng (Martha) and the former student Dipuo. During 2019 or 2020 Nthabiseng Mokouane, a lecturer, and Dipuo and Nthabiseng the student came to her class asking her to hear what Nthabiseng had told her and proceeded to tell her that what happened to Dipuo had happened to Nthabiseng again. Miss Mokouane asked Nthabiseng to narrate what had happened. Nthabiseng proceeded to tell her that she had approached the applicant with a challenge she had with her subjects. The applicant had then asked her to come to his office later.

[15] She went to the applicant’s office and in the office, the applicant had locked the door and asked about her family. It was during that conversation that the applicant told her to bring her (Nthabiseng) mother’s curriculum vitae (CV). During that conversation, the applicant had exposed himself to her by taking his manhood out. When he exposed his manhood to her, she had told the applicant that she was in her periods. Nthabiseng had explained that the applicant took sanitary pads from the cupboard and gave the pads to Nthabiseng. When Nthabiseng said the applicant had exposed himself to her, she had frozen and said to herself ‘this was too much’. She had then told Nthabiseng to go to the Campus Manager. There were cases that had previously been reported to her among which was the applicant having given a lift to one of the learners and the incident with Dipuo Lehlokoane. About the incident involving Miss Lehlokoane, the applicant was given a final written warning.

[16] Also, among the cases reported to her was that of a female security officer where the applicant had asked the security officer to go through a wooden door to his (applicant) office. The security officer told her she was not sure what to do and expressed disgust at the applicant’s conduct. She had then advised the security officer not to go to the applicant’s office. She was from the toilets from the D Block when a student who was in a computer class given by the applicant had told her the applicant had asked the students ’le monate na?’. The student further told her she was alone with the applicant in the class next to his table when the applicant asked her ‘O monate na?”. The applicant had then proceeded to ask her to come to his office later on. She was worried about the outcome of the test she was going to write if she did no go to the applicant’s office. She advised the student not to go to the applicant’s office.

[17] Prior to what she was told by Dipuo, she is not aware of any allegations she had allegedly previously made against the applicant.

[18] The fifth witness the respondent called was Miss Raisha Singh. She started working for the college in 2017 on promotion. She previously held a position of Campus Manager in Mnambithi. She is currently employed as the Deputy Principal: Registrar and Student Support Services and is responsible for student registration and other functions and is responsible for these functions at the respective campuses. Page 39 contains an email that she received from the principal’s office that they rely on regarding instructions on examinations. The instruction was clear for her to ensure compliance with the running of exams on all campuses. The instruction came from the Chief Director: National Examinations and Assessments, Miss Violet Tshetlo. The process followed by the college is that the college has to conduct the examinations in compliance with the instruction. In 2019 the chief invigilators were trained by the Department of Higher Education and Training. A Chief Invigilator is someone who is a campus manager. A Chief Invigilator is appointed to take full responsibility for the entire exams.

[19] The Campus Manager, Miss Lourens had been booked off sick, and the applicant was appointed as Acting Manager to oversee the October/November 2019 examination. He was therefore the invigilator in chief for the exams. She is aware of the letter contained on page 38 of the respondent’s bundle where the applicant was appointed the chief invigilator. The chief invigilator must be appointed in writing by the principal, and he can in turn, appoint people to be chief invigilators. The functions of chief invigilators are to ensure that a credible examination is done according to the instructions by the Department of Higher Education. The applicant was trained as the chief invigilator and the applicant was trained by the Campus Manager, Miss Lowrance. The Campus Manager had also done a proper hand over. The applicant was an HOD for many years and would train the staff on examinations for many years.

[20] Campuses are required to compile a state of readiness document which they submit to the central office. The central office would look at the documents and determine if they are realistic. The October/November 2019 examinations were run together with marking. The document contained on page 66 of the respondent’s bundle is the document compiled by the campus. This document tells the central office the campus’ state of readiness. A meeting was held with the Kroonstad team on 23 October 2019 at 12h00, and the applicant was part of the meeting as shown on the attendance record on page 59 and page 63 of the respondent’s bundle. Apart from the applicant having been given training by the Campus Manager, the meeting of 23 October 2019 was like a one-on-one training. The challenge was that the paper was external, but the marking was done internally by the lecturers. Mr Matima, was appointed by the applicant as the Marking Centre Manager for the October/November 2019 examinations.

[21] The colleges had experienced challenges where lecturers would rush the internal marking that they were not being paid for to mark externally where they were paid. She would thus ensure that she followed up to ensure that release letters for lecturers are only issued and signed when college work was done. The most important responsibility for campuses is that marking is done and Page 74 contains a template that the college is given by the Department and the template provides guidance on what should be done. Marking of each script and markers’ reports and moderation reports must be submitted to the Department within 48 hours. All consolidated Engineering Studies N1 and NC (V) L2 and L3 marking moderator reports must be submitted electronically within 48 hours of the conclusion of the marking of a subject to the email addresses indicated above by the Deputy Principal: Academic/Examination Officer of the college. The content of the report must be captured electronically on the templates and emailed as an editable Word document.

[22] The issues she experienced when she dealt with the Kroonstad campus when the applicant was the Campus Manager was that she was dealing with the applicant who was very stubborn and very arrogant during the time. She had done her best to give the applicant the necessary guidance and support. On 01 November 2019, she had sent an email to the applicant to ensure that internal processes were complied with. The applicant was running the examinations and everything was going well, but it was on Thursday 21 November 2019 that she got wind of the fact that marking was not going well but going very slow at the Kroonstad campus and that the marking was not being monitored. In the email she subsequently sent, she had highlighted the challenges with marking that were experienced at campuses. She then attached a campus marking template that would have to be completed by the campuses.

[23] While the applicant was managing the examinations well, she picked up that the applicant was blatantly not monitoring or managing the marking well. He totally neglected his duties in terms of what was required in terms of marking. The applicant failed to monitor Mr Matima and at times left the marking without the necessary completed work done. The Department had set out a particular way that marking reports needed to be filed and the exact format that they needed to be filed. But this was not adhered to. Where the marking was submitted late, the department would hold back the results, and this would have a huge negative impact on students. The applicant released Mr Matima without ensuring that the work had been completed. When she called the applicant, the applicant would tell her that he was going to send the work, but he would fail to do so. At times, the applicant would close the campus and go home and switch off his phone. The applicant had closed the campus while he was aware that there was work outstanding, refused to respond to her email until she was forced to go to the principal who sent someone to get him to do what he was supposed to do. He released Mr Matima before work was finished, and by doing so, he took full responsibility for the outstanding work that needed to be submitted. And the college could not let the students suffer the consequences.

[24] Page 125 and 126 contains a document setting out most of the challenges she experienced with the Kroonstad Campus. Some reports were not submitted on time, not collated and not sent in the correct format. The applicant was aware of the challenges, and he knew exactly the challenges experienced but simply refused to cooperate. The due dates were reflected on the templates sent by the Department, but the reports were not being sent. It was only when the principal sent a staff member to the applicant’s residence that the applicant sent the reports on 13 December 2019. These reports could not be verified, and they were rushed through because the department needed them. Page 20 contains an email from the Exam Officer, Miss Lerato Ramokatsi that she sent to the applicant on 05 December 2019 where she expressed frustration at the reports not being submitted. The applicant did not once respond to any of the emails that were sent by either her and the Exam Officer. Page 122 contains another email sent by the applicant to Miss Ramokatsi where Miss Ramokatsi responded pointing the anomalies with the email and where she pointed out that she was not going to submit anything until the reports were sent in the correct format.

[25] The applicant only sent her the email on page 128 after she had sent her the email contained on page 132 and 133 of the respondent’s bundle. The reports were submitted by the applicant on the very last date that the department was closing, which was on the 13th of December 2019.

[26] The employer called a sixth witness, Miss Martha Litali, who testified that she was a student at the college’s Kroonstad campus in 2018 and was studying office administration. She knows the applicant. Page 26 of the employer’s bundle contains her proof of registration which she received later on the date of 12 February 2020 and was printed by the applicant at 17h18. The applicant printed the document at his office, and she was present at the applicant’s office when he printed the proof of registration. She was at the applicant’s office because she had been asked by the applicant to come back to his office later. It was during the morning of 12 February 2020 that she received a call from the applicant asking her to come to his office later. She immediately went to the applicant’s office after receiving the call. At the office, the applicant asked her to cancel her level 4 subjects and focus on the one that was left. She told the applicant that she could not cancel the subjects because she was studying through NFSAS.

[27] Page 33 of the respondent’s bundle contains the telephone record for the date of 12 February 2020. The record reflects the time of 09h29 and the applicant had told her to come to his office after 17h00. After 16h00, she went to the applicant’s office and when she arrived at the office, there were no office staff around but just security personnel at the gate. On entering the office block, she found the applicant at the reception area. When the applicant saw her, he closed the two side doors and went to his office. On entering the office, the applicant sat on a chair next to hers and started touching her hands. She was sitting on the chair that was on the left side next to the door and had closed the office door. She asked herself a number of questions, including why the applicant called her to his office after hours and whether he was still going to help her. While touching her hands, the applicant asked about her family background, and she told him.

[28] The applicant stood up and touched her breasts and her private parts while trying to kiss her. She stopped him and told him that she was on her periods. The moment she saw the applicant about to take out his private part, she looked the other way. She was however not on her periods and had told the applicants she was on her periods to stop him. The applicant then took lillets pads out of the cupboard and told her that she would come and visit him when she was not on her periods. The applicant then started printing the proof of registration and she took it and left the office. The applicant had cancelled her level 4 subjects, and she told him that if she canceled the level 4 subjects, her bursary would not be paid. The applicant asked her to bring her mother’s CV.

[29] The following Monday, she took her mother’s CV to the applicant’s office, and the applicant told her to bring the CV to him after 16h00. She however did not go to the office. There was nothing stopping the applicant from getting the CV during the break. The applicant called her a few times, but she did not take his calls. He did not call her and only called her again after a few days. When she took the call, the applicant asked if she was going to come and deregister the level 4 subjects, and she told him that she was going to come and deregister. The applicant then put her through another office, and she spoke to Mr Baba at the registry office.

[30] She had told one of the lady cleaners, Oumakie, at the college about the incident and she was afraid to go to the applicant’s office because she did not know how he would look at her. She had just left the class with some of the students whose names did not appear on the class register and they had been told to go to the applicant’s office. She however turned back before she could enter the office and told the cleaner that she had to go to the applicant’s office along with the other students but was afraid to. Oumakie asked her why, and she told her what the applicant had done. Oumakie told her she was not the first one that had been a victim to a similar incident and that there was another student who had been subjected to similar treatment. When leaving Oumakie, she met the very same student who had been sexually assaulted by the applicant, Miss Dipuo Lehlakoana. Miss Lehlakoana took her to Nthabiseng Mokuoane, one of the lecturers at the college. On arrival at Miss Mokouane’s class, Miss Lehlakoana told her that they were coming regarding a similar incident that occurred to her (Miss Lehlakoana). Miss Mokoana said she did not want to hear what they were going to tell her alone and took them to meet Miss Maseko.

[31] On arrival at Miss Maseko’s class and when she narrated what happened, they initially did not believe her until she showed them the calls from the applicant. Miss Maseko had then told her to bring along her parent to the school. She did not. She does not know how the matter ended up with the campus manager, Miss Lowrance. But when Miss Lawrence called her and enquired about the incident, she gave the statement contained on pages 26 and 27. She had no reason not to tell the truth or falsely implicant the applicant. She had never met the applicant before the date of the incident.

[32] The applicant had called her after the incident and there were times when she picked up the calls and when she did not pick up his calls. On the occasions the applicant called her, he would ask her when she was coming to bring the CV. She did not report the incident because there was nobody who would believe her. She only had the courage to report the incident after having met Dipuo.

Employee’s Evidence

[33] The applicant, Mr Joel Makoli, testified that he was employed by the respondent as the HOD and had held this position for 06 years. He had been working for the college since 1997 before his dismissal. Regarding the charge of sexually or indecently assaulting a student, Miss Martha Litali, he had, on 12 February 2020, called her to his office. Miss Litali was not the only student he called on the above-mentioned date. She had called Miss Litali to come and correct her registration. He did not know Miss Litali before the 12th of February 2020. There is a team in the registration department that goes through the registration of students and the Registrar, Mr Baba brought a list of students to his office and among the students he had to call was Miss Litali. He did not sexually harass Miss Litali as alleged. He does not know the reasons why Miss Litali falsely implicated him, but his suspicion is that because he held a position of power at the college, she felt that he had powers to do her a favour by changing the registration procedure.

[34] In the morning, she had called Miss Litali and on arrival at his office, he informed Miss Litali she still had Level 2 subjects that she had to complete and that she could not register for Level 4 subjects having not completed the Level 2 ones. He explained that according to the college policy, she could register for Level 2 and 3 subjects simultaneously. She had passed all Level 3 subjects but had one Level 2 subject she did not pass. He told her she could not register for Level 4 subjects. Miss Litali had then asked him what she should do. He told her that she should de-register the Level 4 subjects. Miss Litali raised concern about having to register for one subject for the whole year, but he told her that was how it was going to be. He encouraged her to, as an alternative, register for a part-time computer course. She then told him that she did not have money and that NSFSAS was not going to pay her fees. She explained that the financial situation at home was not good and that her mother does not work and that her father was not supportive. He then told Miss Litali that if her mother was in Kroonstad, he, would through a church programme, assist her (Miss Litali) mother by having her do some manual work that would help bring income. Miss Litali agreed to bring her mother’s curriculum vitae (CV) and that her mother would not mind coming to Kroonstad because her father was abusing her.

[35] Miss Litali continued sitting in his office while he was assisting other students until his personal assistant (PA), came in and said to her “you are going to take our jobs because you have been sitting here for too long”. Because Miss Litali was sitting in his office without intending to leave, he sought intervention of the campus manager, Miss Lowrance, to come and assist. Miss Lowrance came to his office and explained to Miss Litali that she had to register for the Level 2 subject and Miss Litali was dismayed and stated that she had started menstruating. Because he was keeping pads in his office for emergencies, he stood up from his desk and took out the pads, gave them to her, and returned to his desk. Miss Litali then said she was going to kill herself and left the office. He told his PA, Mavis, what Miss Litali said, but Mavis said she did not believe Miss Litali would carry out the threat.

[36] He called Miss Litali three times on 13 February 2020 trying to find out her whereabouts. Miss Litali told her that she was at home and that she had no intention of coming to the college. As a parent, she was worried about her welfare and more so after she had said she was going to kill herself. Miss Litali was not the only student he called but there were other students he called to come and correct some mistakes made on registration. It was therefore not unusual for him to have called Miss Litali on the occasions he did. He took Miss Litali as his daughter and would not have been tempted to engage in any sexual relationship with her. He had never been accused of or charged for a similar offence since he started at the college. Even if he engaged in any sexual relationship with her, he would not have been able to register her for the Level 4 subjects. He never closed the two main entrance doors as alleged by Miss Litali and did not at any point take out his private part in her presence in his office. While the proof of registration contained on page 26 of the respondent’s bundle reflects his name, he did not print the proof of registration as alleged by Miss Litali.

[37] Contrary to Miss Litali’s claim, she did not come to his office after 16h00 on 12 February 2020 but came some other day. He also did not get the CV from Miss Litali and she (Miss Litali) did not bring her mother’s CV to him on the above-mentioned date. The final written warning he was issued on 26 July 2019 and which warning is contained on page 22 of the employer’s bundle related to an incident where he had de-registered Miss Dipuo Lehlakoana and where he was accused of having de-registered her for denying him sexual favours. Dipuo Lehlakoana is the same person that Miss Litali had spoken to and who had taken her to Miss Mokuoane and ultimately Miss Maseko regarding the alleged sexual harassment incident. He, in 2018, had complained about two of the witnesses who testified in the arbitration hearing, and he had a romantic relationship with one of the witnesses, Miss Mokuoane. He and Miss Mokuoane had agreed to be friends with benefits, but Miss Mokuoane later insisted on staying with him. He had told Miss Mokuoane that he was married and that their relationship would interfere with his marriage. He had to end the relationship with Miss Mokuoane and Miss Mokuoane had vowed to deal with him.

[38] Regarding the charge of having failed to compile and submit marking and moderation reports and having failed to ensure that Mr Matima had finished or submitted work before leaving for marking in Bloemfontein, it was not his responsibility to compile and submit marking and moderate reports. He was informed in August 2019 that he was going to act in Miss Lowrance position as campus manager as she was going on leave. He was never trained by Miss Lowrance after she (Miss Lowrance) attended the examination training Miss Singh was referring to. No proof of attendance was provided by the respondent’s witness, Miss Singh, on the examination training he allegedly attended. He had requested that he attend training to run examinations and was prepared to pay for meals from his own pockets, but this request was denied by Miss Singh. He had a good relationship with Miss Singh but suspects that two incidents that happened may have caused her to lodge the allegations that led to his dismissal.

[39] The first incident was when the, directorate, the campus managers and the HODs were attending a Performance and Management Development (PMDS) session where Winnie who worked at the fitness section was given a zero rate. He had stood up against the allocation of a zero-performance score to Winnie. He had then took the issue up with the trade union, and the relationship between him and Miss Singh started souring from then. The second incident involved an inspection that Miss Singh was doing when he was to go to the doctor. He was told by Miss Lowrance that Miss Singh was in her office. He had gone to meet Miss Singh at Miss Lowrance office, and Miss Singh had asked him about when he had decided to go to the doctor. He had then given Miss Singh the appointment letter from the doctor, but Miss Singh insisted on having a meeting with him. But after having looked at the doctor’s appointment letter, Miss Singh said he could go to the doctor. While he was at the doctor’s practice, Miss Singh called him asking about when he was coming back to the office. Her tome suggested that Miss Singh was upset. He immediately went back to the office after seeing the doctor and, on arrival at the office, Miss Singh started shouting at him telling him that she had been waiting for him and shouted at him in front of other people. He ended up raising his voice at her and telling her that “you do not value our lives”. He further indicated that she (Miss Singh) was concerned more about the assets of the college that lives of the people.

[40] Miss Singh was not telling the truth when she testified that she had spoken to him in a professional manner when he came back from seeing the doctor. The two incidents occurred before the October/November 2019 examinations. It is true that he and Miss Singh had several telephone and email conversations during the October/November 2019 examinations. Contrary to Miss Singh’s version to the effect that he failed to respond to her emails, he did respond to each of the emails sent by Miss Singh but could not print them for purposes of presenting them at the arbitration because he had been suspended and had no access to college facilities. While he was allowed by the campus manager, Miss Lowrance, to come during his suspension to print the documents, he found his office ransacked and some of the documents were missing. It is not true that Miss Singh gave him the necessary support during the October/November 2019 examination period.

[41] Mr Matima was the Marking Centre Manager at the college during the October/November 2019 examinations. He had released Mr Matima after having ensured that the necessary reports were submitted. Mr Matima had showed him the files that he (Mr Matima) had sent. Mr Matima was supposed to be the last person to leave. While Miss Singh alleged that he failed to meet the due dates for submission of reports, this was not his responsibility but that of Mr Matima. Regarding the allegations that he closed the college before ensuring that everything was submitted, he was surprised by these allegations. He was at the college to make sure that everything, including payments, were done. There were a lot of transactions that had to be authorized and he could not have left the college without ensuring that everything was done. There was a time he had a commitment and left early and there were documents that had to be given to him. He had also attended a birthday of his colleague but never neglected his duties. On the day of Miss Mabefe’s birthday, he and some of his colleagues had gone to Spur and had ice-cream, and they thereafter came back. It is not true that he attended a birthday and neglected his duties at the college as suggested by Miss Singh.

[42] He had done his best to ensure that everything was done. The reports were submitted, and the students were resulted. Mr Matima did come back to the college and they finalized and submitted all the reports. During that time, he was communicating with Miss Singh and had communicated to Miss Singh the efforts he made to get Mr Matima back to the college. While Miss Singh stated that Sasolburg campus compiled and submitted its reports while the Kroonstad campus did not, the subjects reflected on page 118 of the respondent’s bundle were Sasolburg subjects and the Kroonstad campus does not teach these subjects.

[43] The applicant called his first witness, Mr Thulo Shadrack Meloe, testified that he is employed as the campus manager at the respondent’s Mphohadi campus in Kroonstad and has held this position for twelve years. He has more than twenty-five years in the employ of the college. In his campus, he does get appointed to be the chief invigilator in every examination. He gets involved in examinations from the beginning to the end. His campus does not have a standing marking centre but marking for Engineering N1 subject is done internally by teachers teaching the subject. He also appoints a examination centre manager. Before each and every examination, there has to be training from DHET which trains chief invigilators who in turn train invigilators. The DHET does have guidelines that should be followed as part of the examination. The DHET requires there to be an attendance registers of personnel trained, and all invigilators appointed should have an appointment letter that gets given by the deputy chief invigilator. Upon the invigilators receiving the appointment letters, they have to sign the appointment letters are to ensure that examinations are run in a prescribed manner.

[44] He was a chief invigilator in 2019 October/November examinations. He attended the training on examination on the above-mentioned examination periods. He attended the training in Potchefstroom over two days and attended the training with Miss Lizette Lowrance, the campus manager for the Kroonstad campus. He travelled in the car with Miss Lowrance, the senior person he appointed and the applicant. Miss Lowrance had, inside the car, told those who were not in attendance the previous day feedback on what transpired in the training the previous day. In that feedback, she had stated that they needed to sit with all the invigilators and give them feedback on the training given. He works at the Mphohadi campus and does not know if Miss Lowrance gave training to the applicant. The duty of the centre manager is that of giving out examination scripts to particular lecturers who would mark the scripts. After marking, the marker would put totals and hand the scripts over to a senior educator who hands over the scripts to the moderator. Once the scripts have been checked, he and the administrator take the scripts and package them and sign them off to confirm that everything is correct and sends them to wherever they should be sent to. Reports are compiled daily and he and the administrator compile the reports. The senior educator (centre manager, sends the marking reports to the central office.

[45] The applicant’s second witness, Mr Vuyani Jason Baba, testified that he is currently employed by the college as the Registrar. He knows the applicant and had worked with the applicant since 2014. Page 26 contains a detailed proof of registration for Miss Litali MM. It is not possible for changes on a student’s proof of registration to be finalized on the same date. It usually takes about 48 hours for the changes to be effected. During 2020 there was no practice of staff members using other staff members’ passwords. A user of a password would have to give access to another person to use the password. It is possible for someone else to access one’s profile without the user knowing, and that could be the line supervisor or the IT personnel.

[46] The third witness called by the applicant was Mr Tholo Isaac Majoro. He testified that he is currently employed by the college as the lecturer for business studies and computer skills and has been employed by the college since 2013. Lecturers assigned to work on Coltec during registration are allocated passwords. The password was shared via WhatsApp group. He is not sure if Mr Makoli’s password could have been shared with anyone, but he (Mr Makoli) as a senior to him may have access to his password. The bottom of the printed document would indicate the person whose login credentials were used to print. He is not sure how long the deregistration of a student takes because that is not his area of responsibility.

[47] There was a meeting they had as male lecturers where it was said that there would be traps set against them by a so called MMM group which comprised of Miss Mokuoane and Miss Maseko and he is not sure of the third M. He had once been a victim of the trap set by the MMM group. Miss Mokuoane had said his private part was as big as a Flavius Mareke pole, and this offended him because it happened repeatedly. Miss Mokuoane did not say this once but on more than one occasion.

ANALYSIS OF THE EVIDENCE AND ARGUMENT
[48] It is trite that in dismissals for misconduct, it is the employer that bears the onus. In the present case, the respondent bore the onus to prove fairness of the dismissal. The respondent’s case was based on two charges that were preferred against the applicant. Having heard evidence in respect of the first charge related to sexual misconduct against a former student, Miss Litali, it is my finding that the respondent has proven the charge for reasons I will be explaining in the following paragraphs.

[49] The charge relates to a claim by Miss Litali that she was sexually harassed by the applicant while at his (applicant) office on the afternoon of 12 February 2020. While the applicant denied the charge, evidence by witnesses and the events that transpired on the above-mentioned date place him at the scene and point to his possible guilt. The applicant did not dispute having called Miss Litali to his office on the morning of 12 February 2020. Both the applicant and Miss Litali confirmed her having visited the applicant’s office. Their versions do not differ insofar as Miss Litali having been called to the applicant’s office regarding Level 4 subjects that she was required to cancel or deregister. Where their versions differ is the events that allegedly occurred when Miss Litali visited the applicant’s office for the second time on the afternoon of 12 February 2020.

[50] The applicant denied that Miss Litali had ever been to his office on the afternoon of 12 February 2020. It is however my finding that Miss Litali’s version is more probable than that of the applicant. The events as related by Miss Litali could only have happened in the afternoon when the rest of the staff members were not there. I find the applicant’s contention that Miss Litali did not visit his office on the afternoon of 12 February 2020 to be highly unlikely. There is an issue of the proof of registration that Miss Litali testified was printed by the applicant in her presence on the afternoon she visited the applicant. While the applicant denied having printed the proof of registration, he provided no good explanation why the printout bore his name if he was not the one printing it. The printout also had the same date the incident is alleged to have happened and the time reflected on the printout coincides with the approximate time given by Miss Litali, which was 17h28. The applicant did not call any witness in the persons of Mavis who he said was his personal assistant who he claimed was present when Miss Litali visited his office.

[51] There also is the issue of the pads that the applicant took out of his cupboard and gave to Miss Litali. Miss Litali’s version was that the applicant had touched her hands, tried to kiss her and sought to take out his private part when she told the applicant that she was on her periods. Her version was that the applicant gave her the pads and told her to come and see him when she was not on her periods. The explanation the applicant gave for having given Miss Litali the pads was that she had complained of period pains after he had told her she had to deregister for the Level 4 subjects she had already registered for. Miss Litali on the other hand testified that she told the applicant that she was on her periods to stop the applicant from the sexual advances he was making. Uncontested version by Miss Litali was that she was not on periods and that she could not have been because she was on birth control injection that rendered her unable to go on periods. Most of what the applicant stated during his testimony relating to the incident was never put to Miss Litali. Among the claims the applicant made during his testimony was that Miss Litali had sat in his office refusing to leave to a point where his then personal assistant, Mavis, told Miss Litali that she was going to take away her (Mavis) job because she had been sitting in the applicant’s office that whole morning. This version was never put to Miss Litali.

[52] While the applicant’s version was uncorroborated, Miss Litali’s version was corroborated by witnesses who testified as to the events that unfolded after the sexual encounter at the applicant’s office. Both Miss Maseko and Miss Mokuoane’s version confirmed Miss Litali’s version insofar as what took place at the applicant’s office. Also the unfolding of events leading up to both Miss Mokuoane and Miss Maseko becoming aware of the incident could not have been manufactured. For starters, Miss Litali testified that she initially did not report the incident because she thought no one would believe her. She did not set out to report the incident and appeared to have no intention of reporting the incident to Miss Mokuoane and Miss Maseko. Miss Mokuoane became aware of the incident after Miss Litali’s encounter with one of the cleaners, Oumakie. What led to Miss Litali telling Oumakie about the incident was when she told Oumakie that she was afraid to go to the applicant’s office together with other students whose names did not appear on the class list and who had been told to go to the applicant’s office. It was only when Oumakie asked her why she was afraid to go to the applicant’s office that she told Oumakie what the applicant had done and where Oumakie told her that she was not the first one to suffer the same fate and that another lady, Dipuo had been sexually harassed by the applicant. Coincidentally, Miss Litali bumped into Dipuo after her conversation with Oumakie. It was only then that Dipuo and Miss Litali approached Miss Mokuoane, and Miss Litali did not know Dipuo before her (miss Litali) conversation with Oumakie.

[53] I cannot find any of the respondent’s witnesses to have reason to falsely implicate the applicant. Miss Litali had had no previous encounter with the applicant and did not know her. The applicant himself stated that he did not know Miss Litali before her visiting his office on 12 February 2020. While Miss Litali may have been unhappy with her having to deregister, I cannot find same to be reason good enough for her to falsely implicate the applicant. Miss Dipuo Lehlakoana had accused the applicant of sexual harassment, and the evidence by the Deputy Principal, Mr Tema was that the applicant was, for this incident, given a final written warning, and which warning was included in the bundle of documents submitted by the respondent. The applicant never challenged this final written warning and, as such, the claim by Oumakie and Dipuo stood unchallenged.

[54] I further cannot find that Miss Mokuoane had any reason to falsely implicate the applicant. The applicant did not dispute the version to the effect that he was in a romantic relationship with Miss Mokuoane. While Miss Mokuoane testified that she had a good relationship with the applicant and that they parted ways on amicably terms, the applicant appeared to suggest, during his testimony, that Miss Mokuoane had a score to settle because when he (applicant) ended the relationship because it was causing challenges with his marriage, Miss Mokuoane had vowed to deal with him. But the applicant failed to put this version to Miss Mokuoane. With regards to Miss Maseko, the applicant referred to incidents where female lecturers ganged up against male lecturers to the extent that male lecturers thought it necessary to raise the issue with college management. But it was not the version of the applicant nor that of the witness he called that a formal grievance was lodged. Both Miss Maseko and Miss Mokuoane testified that they were not aware of any issues that were there between female and male lecturers. I can thus not find that any of the witnesses had reason to falsely implicate the applicant.

[55] It is common knowledge that the country is experiencing highest levels of incidents of gender-based violence and sexual abuse. The applicant was a lecturer and he ought to have known that engaging in any sexual harassment act would land him in trouble. A warning shot had been fired when the college issued him with a final written warning for sexually harassing Miss Dipuo Lehlakoana. He thus should have known that repeat of a similar offence would lead to his dismissal. His conduct is aggravated by the fact that he is an educator and not just an ordinary employee (not that the conduct would be any less serious if committed by an ordinary employee). I can thus not find that the respondent erred in dismissing the applicant for this offence. It is my finding that for this offence alone, dismissal was warranted.

[56] Regarding the second charge, it is my finding that the respondent did not err in finding the applicant guilty and dismissing him of this charge. The applicant was an acting Campus Manager during the October/November 2019 examinations. He had also been appointed the chief invigilator for examinations. He was aware of the examination instructions and what was required of him as per page 102 of the respondent’s bundle. Miss Singh spoke glowingly about the relationship she had with the applicant. She thus would not have reason to falsely implicate him. The guidelines by the DHET stated that reports be sent in editable Word format and not PDF and for emphasis, the sentence on this requirement was marked in bold. If the applicant went through Mr Matima’s reports as he claimed to have done, he would immediately have picked up that the reports were in PDF format and not in editable WORD format as per the examination guidelines. It is my finding that the applicant possibly did not check Mr Matima’s work before releasing him to do external marking. The applicant only appears to have checked the reports only after the intervention by Miss Singh and ultimately, the college principal.

[57] It is further my finding that the delays in submission of the reports in the format they should have been submitted in as per the examination instructions would have been avoided had the applicant checked Mr Matima’ reports before releasing him for external marking. While the applicant asserted that it was not the first time that Mr Matima had sent reports in PDF format, the examination instructions were clear in stating that the reports must be submitted in editable WORD format. Most of the explanation given by the applicant during his evidence-in-chief was not put to Miss Singh, an example being that the applicant never put to Miss Singh that the reports are submitted in PDF format as a security measure between colleges. The applicant failed to explain why, if he did not neglect his duties, it took the intervention by the principal and for someone to be sent to his house that the correct reports were finally submitted.

[58] It is not in dispute that the reports were only submitted on 13 December 2019, long after they should have been submitted. While the examination guidelines did not mention a specific date by which the reports should have been submitted and while the applicant sought to use same as a defense, it does appear, given the tone of the correspondence of individuals responsible for coordination of submission of the reports including Miss Lerato Ramokoatsi who wrote to the applicant on 10 December 2019 about non-submission of NCV 12-L3 marking and moderation reports that the reports needed to be submitted on time in order to allow a process of checks and balances before the final reports were submitted to DHET. The email of 10 December 2019 was not the first email written by Miss Ramokoatsi. There was a previous email sent on 06 December 2019 where Miss Ramokoatsi listed subjects that had not been consolidated by the Kroonstad campus and in particular by Mr Matima. It is my finding that the charge of gross dereliction of duties against the applicant was not misplaced and that the respondent has proven the charge.

[59] While the applicant pleaded stated, as part of his defense, that he did not receive training on examinations, I concluded, on the basis of evidence led by Miss Singh that the applicant did know what to do and that while it was practice that chief invigilators would undergo the training each time examinations had to be written as testified by the applicant’s witness, Mr Meloe, the applicant had run examinations before. The version to the effect that the applicant had run examinations before was not disputed. I accordingly reject that lack of training or his allegedly not being trained contributed to his failure to It appears to me, that the simple thing the applicant needed to do was to check Mr Matima’s work and ensure that his reports met the standards and requirements of the DHET, which was something he only did after the intervention by the principal after attempts by Miss Singh to get him to submit the reports on time and in the proper format were unsuccessful.

[60] It is my finding that the charge of gross dereliction of duties preferred against the applicant was not misplaced and that the respondent has proven this charge and that dismissal was warranted a sanction. Miss Singh’s evidence was that the results would have been dire for the college had the reports not been submitted and that amongst the challenges the college would have had was that students would not have been resulted. The applicant argued that the reports were submitted and that students were resulted. But he appeared to miss the point. The worst would have happened had no constant follow up been done and had the principal, Mr Letho, not taken the measures he did including sending a vehicle to the applicant’s residence to ensure that the reports were ultimately submitted in the manner that they should. While the applicant, in his defense, contended that the students were resulted, the reports he was supposed to have ensured that they were submitted and on time were only submitted on 13 December 2019, and this, according to unchallenged evidence by Miss Singh, did not give the college enough time to go through the reports and properly verify them. The applicant was no ordinary lecturer but was the HOD and acting Campus Manager. It is in this light that the extent of his dereliction should be viewed. I find, as I stated in the preceding paragraphs, that the applicant’s version on both charges was largely uncorroborated. In that regard, while the employer presented a strong case, the applicant did not discharge the evidentiary burden to explain his conduct.

[61] The Courts have now set the principle on onus and in Compass Group Southern Africa (Pty) Ltd v CCMA and others the Court held as follows:

“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 then 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.”

[62] Regarding the alleged procedural unfairness and while I dealt with the points raised at the commencement of the process, it is my finding that on all points raised by the applicant, he did not state the prejudice he suffered as a consequence. In relating to his representative’s questioning of Mr Ngcosane’ s standing as a representative, it is my finding that this point falls to be dismissed. Mr Ngcosane is appointed as a Deputy Director: Labour Relations in the Higher Education Department and has acted for the department in various processes before the Council. The applicant did not point to any harm he was likely to suffer if Mr Ngcosane, who is based at another TVET college, were to act on the respondent’s behalf in the proceedings before me. There was another issue raised of the Resolution that the respondent should have charged the applicant under. It is my finding that even if the Resolution the applicant was charged under was incorrect, he would have suffered the same fate should he be found guilty of the charges. In any event, as I state above, the applicant did not suffer any prejudice. He was given amply opportunity to defend the charges and to state his case and was advised of his right to challenge the employer’s decision by way of lodging a dispute with the Council, something he has since done. On this basis, I find that that the respondent did not err as to procedure.

[63] I therefore deem it reasonably to make the following award:

AWARD

[64] The dismissal of the applicant is procedurally and substantively fair.

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

Monde Boyce
Panelist: ELRC