ELRC 1038-21/22NW

IN THE ELRC

In the arbitration between
NEHAWU Gopolang Pilane

APPLICANT

AND

Department of higher education and training RESPONDENT


ARBITRATION AWARD

CASE NUMBER: ELRC 1038-21/22NW
DATE DOCUMENTS RECEIVED:
DATE AWARD /RULING: 18 April 2023
NAME OF PANELLIST: Mmeli Danisa

DETAILS OF HEARING AND REPRESENTATION
1 The Arbitration into the alleged unfair dismissal dispute, referred in terms of section 191(1) (a) of the Labour Relations Act 66 of 1995 (the Act).
2 The hearing was conducted on-line on 28 September 2022 and was postponed to 06 December 2022 and concluded on 06 March 2023.
3 The Applicant, Mr Gopolang Ernest Pilane, was present and represented by Mr Jacob Segosapelo, a NEHAWU union official. The Respondent, Department of higher education and training, was represented by Mr. Tebogo Lesimola, Labour Relations Practioner.
4 The Applicants position was a Post Level 1 (PL1) Lecturer, earning R20 485.75 he was employed in January 2013 and his date of dismissal was 08 November 2021.
5 The Applicant submitted Bundle A with 41 pages and the Respondent submitted Bundle R with 120 pages. The proceedings were digitally recorded, and electronic notes were taken.
POINT IN LIMINE/ PRE-LIMINARY ISSUES
6 There were no pre-liminary issues.
ISSUE TO BE DECIDED
7 As confirmed on record, the issues to be decided were whether or not the Applicant’s dismissal was procedurally and substantively fair or not.
PROCEDURAL
8 The Applicant challenges the following aspects in procedure, namely;
10.1. The Respondent finalised the appeal beyond the 30-day period as prescribed by resolution 1 of 2003.
10.2. The chairperson of the disciplinary hearing was conflicted as he was the campus manager and formed part of the Applicant’s reporting lines.
SUBSTANTIVE
9 The Applicant challenges the validity of the charge as he contends that he is innocent and there was no substance to the charges against him.
BACKGROUND TO THE DISPUTE
10 The Applicant was employed by the Respondent in January 2013 and his date of dismissal was 08 November 2021.
11 The Applicant was given three charges, namely;
• Charge 1: Gross insubordination; contravention of section 17c of the employment of educators act by disobeying, disregarding and wilfully defaulting in carrying out a lawful instruction given to you as the educator by the person in authority to give it.
- Verbal warning, written warning, and final written warning with regards to POE’s. He was asked to provide the POE’s which he did not do.
• Charge 2: Negligence; contravention of section 17d of the employment of educators act by being negligent or indolent in carrying out the duties of the educators’ post.
• Charge 3: Unauthorised Absence; contravention of section 17m of the employment of educators act by being absent from the office or duty without leave or valid reason.
12 The issue remains whether the Applicant’s dismissal was substantively and procedurally fair or not.
SURVEY OF EVIDENCE AND ARGUMENTS
13 I am not going to give an exhaustive survey of all the evidence and arguments led during the arbitration hearing. What follows is a concise summary of evidence relevant to my findings only.

THE RESPONDENT’S CASE
14 The Respondent called in two witnesses that testified under oath.
15 Mrs Cathrine Mogwera (“Cathrine”) was the Respondent’s first witness, in her sworn evidence she testified as follows:
18.1 She started working for the Respondent on 02 February 2006, she was a PL 1 lecturer for 9 years, she got promoted to PL2 and then to acting HOD which is her current position.
18.2 She willingly wrote the preliminary report and read the entire report into record.
18.3 The Applicant and Ms Sebone (“Sebone”) initiated a cross transfer and the requirement for such a process was that the employees initiating a cross transfer needed to be teaching the same subjects at their respective campuses. This was not the case in this specific instance as the Applicant could not teach computer practice and travel services N6 which Sebone was teaching in the campus the Applicant moved to.
18.4 She read the Applicant’s verbal warning and her Memorandum into record, which was addressed to the Applicant.
18.5 She read the Applicant’s written warning into record, and his Charges , which stated that the Applicant did not submit the portfolio of evidence/ assessment (“POE’s/ POA’s”) and he did not give any justifiable reasons.
18.6 She read the Applicant’s final written warning into record and an email sent to the Applicant and the manager.
18.7 She read the following documents into record, the register for daily attendance from1- 5 March 2021, which shows an unlawful absence for the 4th and 5th, the register for daily attendance from 15-19 March 2021 requested that he sign for his time of arrival daily, the register for daily attendance from 29 March -01 April 2021, which shows that at 09:05 he was not on duty. The Applicant is supposed to report to work at 07:30.
18.8 She printed a memorandum and tried to give it to the Applicant and kept noting the times she tried to give it to him, and he was not present at work for her to give it to him.
18.9 The Applicant was present at a meeting, held on 29 March 2022, which meant to be an induction and a follow up intervention meeting to help him as he was not adhering to the instructions and not doing the subject justice and his job description.
18.10 Paragraph 8.8 disciplinary code was read into record. This shows that there was no prejudice to Applicant as the paragraph speaks of precautionary suspension being for 30 days and the Applicant remained working during the appeal, so this was not applicable.
19 Cathrine in her cross examination testified as follows:
19.1 She does not know what the Applicant was teaching at Capricorn Tvet College Polokwane campus, because the process is initiated by the parties that want to transfer. Sebone came to her and told her that there was an appropriate lecturer that she could transfer with.
19.2 She sought to confirm that he was a qualified tourism lecturer and Sebone confirmed that he was. The process then requires HR and the principle to finalise the process and she does not get involved at that level. During the process she requested the Applicant’s CV, and based on the CV she was comfortable that the Applicant could fill in Sebone’s position.
19.3 His CV did not specify his allocated subjects but rather what achievements or awards he received.
19.4 It was put to her that she did not make sure that the Applicant was correctly placed and that the students are taught in the manner that they should be, and she did not admit this. She expected that the parties doing the cross transfer to ensured that they matched in regard to the subjects they taught.
19.5 Contingency plans were made for the Applicant to swap with Ms Sinwelo (“Sinwelo”) regarding travel services N6, as the Applicant was unable to teach it, and he would take science of tourism (theory), which was pre-arranged with the Applicant. The appointment was supposed to be made in the acting campus managers offices.
19.6 On the 4th of March 2021, everyone but the Applicant was there to meet regarding the swap arrangement, even though the Applicant had agreed to the swap and the meeting on the 3rd of March 2021. She could not get a hold of him and involve another HOD to make the swap arrangement.
19.7 Sinwelo took the subject on a part time basis because the Applicant was not available or could not teach this subject. The Applicant refused to teach the theory part of travel services. He did not want to teach the subject at all. He took office practice which he has never specialized in but refused to teach travel services theory which he specialized in.
19.8 It was possible for him to teach theory and they had deliberated on this, and they had ascertained that it was possible. Galileo is a booking system within the module but there are theory aspects to teach without dealing with Galileo.
19.9 Regarding computer practice she had immediately swapped the Applicant, because it was in her department, and she swapped him for a theory subject called office practice with Mr Mathebula (“Mathebula”). The Applicant honoured this arrangement.
19.10 The Applicant was taking the later bus on purpose, and he did not get in the earlier bus and that was why he would get to work late. She did not promise to assist the Applicant with accommodation or to facilitate accommodation as she is not involved with that particular process.
19.11 He committed to changing his late coming ways but went back on this although he had promised. This period was around 12 April 2021 up until July 2021 and he was not consistent, but she does not have the timetable for this period.
19.12 The Applicant was requested to submit documentation for his three days he was absent. She also gave him three suggestions, namely; 1) That he get a police affidavit, 2) get a sicknote from the clinic and 3) or write a motivation as to why he needed a clinical psychologist. On 04 March 2021 he was absent from the meeting, on 05 March 2021 he sent an email resigning which she responded to, on 08 March he did not report to work. He only reported to work on 09 March 2021, stating stories regarding assault and she gave him the above-mentioned 3 points as suggestions that he had to choose from.
19.13 The relevant policy is the directive on the leave for absence in the public service.
19.14 Put it to her that there is a health and wellness policy which dictates that she should have escalated the process. She stated that she sought input from HR and HR advised her to request motivation as mentioned above.
19.15 She does not remember if he had a first lecture or not and therefore cannot confirm that his classes suffered. She cannot confirm whether there were classes that were clashing. She does not recall there being any clashes with regard to the Applicant.
19.16 The Applicant was sleeping while invigilating and she addressed him on this, he said he was tired, and the internal assessment needed to be redone and the lecturer needed to set another question paper.
19.17 She consulted other lecturers to try and get them to assist but they declined due to capacity.
19.18 She does not sign or approve transfers. She only met the Applicant when he officially reported to campus. She did not interview the Applicant and she was not part of the cross-transfer process as she is a senior.
19.19 She is aware of the cross-transfer process . This speaks to what the supervisor should ensure. She states that she was not the supervisor in terms of the transfer based on what is illustrated on R-50. Due to the culture of the colleges in regard to the transfers, the seniors are the ones that sign.
19.20 She disagrees that the Applicant was not qualified as his CV shows that he was qualified. He was able to teach some of the subjects that his transferring colleague was teaching.
19.21 The transferring process does not allow for appointment and approval to be done by her which is rather unfortunate. She requested the Applicant to submit the POE and POA’s, on several occasions and even when they went on recess, and he submitted these up until he left in November 2021.
19.22 She sent an email reminding the Applicant about his issues. She requested that he sort the POE’s out and then correct his attendance issue by 23 March 2021, and he failed and then she gave him grace for up until 30 or 31 March 2021.
19.23 The Applicant cannot excuse his delay due to a lack of tools. The POE’s require him to compile files, preparation etc which needs printing and needed to be prepared daily and updated. The POE’s also Contain lesson plans, notes, exam questions. He should have been filling in the file daily. He should have been keeping record of marks.
19.24 The above process is required as it is how lecturer’s assess students and keep record thereof. He was supposed to have done POE’s and POA’s for each of the subjects (four subjects) he teaches, which makes it 4 POE’s and POA’s respectively.
19.25 The Applicant was sharing a laptop and he is not the only lecturer that was sharing. Every class has computers, and he could have used his off periods to access other class rooms and/ or use the computer lab. All the lecturers were printing and using the computer lab. He was sharing the class with a colleague, but it was not utilized throughout the day.
19.26 She even offered the Applicant her office to also use if he needed it, and she refuses to accept that the Applicant has valid reason to not provided POE’s and POE’s from January to November, for the first semester. He should have used Sebone’s file to copy the information.
19.27 The Applicant’s verbal warning did not involve the POE/ POA issues.
19.28 The written warning was for the incident which occurred on 23 March 2021. She met the Applicant on 30 March 2021 and issued him with the written warning and he refused to sign it on the following day.
19.29 He then committed further transgressions which she gave him a final written warning for on 30 March 2021 which he also refused to sign for on 31 March 2021. R-102 shows the 7-day grace was from the 17 March 2021. She does not agree that she gave contradicting instructions on R-91.
19.30 She heard that the Applicant was sleeping, and she confronted him, and he admitted that he was sleeping, and she asked him why and he said he was sick. The tests he was supposed to be invigilating had to be re-done as the students could have cheated while he was sleeping.
19.31 She did not get any POE’s and POA’s for work done from the last week of January to March 2021.
19.32 She made a request for a replacement in April 2021.
19.33 There are guidelines on the process to be followed regarding the POE’s/POA’s. The Applicant was given all the files for POE and POA and he needed to create his own files.
19.34 She doesn’t know whether the Applicant’s sleeping was deliberate or not.
19.35 Annual leave is for support staff and not academic staff because they have leave during the holidays. The Applicant was absent, requested to resign and then came with the assault story on his return.
19.36 R-54- 58 shows various clashes in the lectures on the timetable, but the timetable was flexible. The rotation work was to be done physical on Monday, Wednesday, and Friday. The remote sessions were on Tuesday and Thursday.
19.37 Read the last paragraph of R-99 of the Respondent’s old bundle into record, which deals with how the students complained about the Applicant not attending there lectures to teach them as he had never taught them.


20 Cathrine in her re-examination testified as follows:
20.1 The Applicant was negligent in relation to how he was not seeing the students for one of the subjects he was allocated to teach and he did not do the POE’s and POA’s and attendance registers. He was not following the deadline requirements placed on him.
21 Ms Welheminah Molapi (“Molapi”) was the Respondent’s second witness, in her sworn evidence testified as follows:
21.1 She is the acting campus manager, and the accounting office of the campus. She came to know of the Applicant when he came to work at her campus after he did a cross transfer with Sebone, who was a lecturer at the campus.
21.2 Sebone came to her office to ask if she could do a cross transfer with a teacher in Tvet college in Polokwane as she wanted to be closer to home and the Applicant was originally from Rustenburg and wanted to do the same.
21.3 She was responsible to approve the cross transfer at campus level and had to look at whether the due diligence was done before the final approval was made or done by the principal of the College.
21.4 There are requirements which are necessary as the Applicant needed to take over all the subjects conducted by Sebone and Sebone would need to do the same in Polokwane. The reason for the above-mentioned requirement is to ensure that there is no need to hire a new lecture so there would be no financial burden as a result of the cross transfer.
21.5 She tried to determine from Sebone whether the Applicant would be able to handle all the subjects and Sebone said yes. She also had to determine whether he had the necessary qualifications and there were documents to show that the Applicant had a degree in Tourism and a diploma too. She saw nothing wrong with the cross transfer at the time and she signed.
21.6 She called Sebone after Cathrine had reported that the Applicant could not handle travel services. She was surprised as to why he could not handle the subject as she had been told he could teach all her subjects. She called Sebone in the presence of Cathrine. She called to ask why she made her sign a cross transfer which did not match and was not justified.
21.7 Sebone said she did not understand why he could not teach the subjects as he had agreed to teach all her subjects. Sebone further stated that she did not meet the Applicant as he had left the Polokwane campus before he had even marked his scripts or giving her a hand over.
21.8 She believes that Sebone may not have known that the Applicant would have the issues he had with teaching one of his allocated subjects. She did not understand why the Applicant could not teach the one subject.
21.9 Knowing what she knows now and had the two transferring employees been honest with her she would not have approved the cross transfer because this issue resulted in her needing to hire another lecture and she did not have the capacity to do do.
22 Molapi in his cross examination testified:
22.1 The requirements for a cross transfer are 1) can the lecturer in question teach all the subjects taught by the other lecturer, 2) do they have the same qualifications as the other lecturer.
22.2 She had an intervention with Catharine and the Applicant. This was for various issues she had, had with the Applicant.
22.3 She was involved at the initial stage which starts off the cross-transfer process. She did not consult with the Applicant at any stage. She does not get involved with the operational issues but would only get involved if there were issues.
22.4 She is aware that Catharine took the Applicant through an induction process on his arrival. She asked why the Applicant was sleeping on duty and he said he was tired.
22.5 She is aware that the Applicant spoke of an EAP and/ or requested it and Catherine attempted to engage the process but there were not enough details. Furthermore, the Applicant was arrogant during the intervention meeting and started saying he felt he as though he was in a disciplinary hearing. She did not see any psychological intervention needed as he was arrogant the whole time and she did not see the Applicant’s written submission for EAP.
22.6 She requested evidence regarding some of the claims made by the Applicant, in which he had alleged that the police were involved.
22.7 Evidence of teaching and assessments are a contractual obligation of all teachers or lecturers at the campus. There are duties and obligations that the Applicant should conform too. The Applicant was shown the files (POE’s and POA’s) and the methods to be followed and the Applicant was not interested.
22.8 The Applicant was missing all the unit meetings where the ICARS guidelines were discussed and taught to lecturers, due to his late coming.
22.9 The Applicant should have had or made his own files for each of the subjects he taught. There are some things that the HOD’s should provide, and even if the HOD’s had not provided what was require it still does not excuse how the Applicant did not have any file at all.
22.10 There was no formal handover, but the Applicant was given the appropriate resources and support by Catherine. Semester 1 came and went without any submission of a POE and POA for his subjects. He improved regarding the following semester, after the first warning.

THE APPLICANT’S CASE
23 The Applicant had two witnesses testify on her behalf. Mr Gopolang Ernest Pilane (“Applicant”) first witness, in his sworn evidence testified as follows:
23.1 He initiated the cross transfer with Sebone. He became aware of the approval of the cross transfer on or about 20 December 2020. Schools opened on 18 January 2021, and he reported to work on 20 October 2021.
Late Coming and Sleeping on duty
23.2 He requested that Catherine bear with him regarding late coming as he needed to identify transport to work. He made this request and/ or submission verbally to Catherine. He had identified that his late coming did not affect his classes and he further requested accommodation that Ms Sebone was using.
23.3 He was traveling using a bus at 07:30 and he would arrive to work late at 08:30. He did not know about any other earlier buses until he met his colleague which he ended up travelling with in their car, and then started and continued arriving on time when he travelled with his colleague.
23.4 When he was invigilating students in a test, he fell asleep involuntarily as a result of his situation at home. He was seated at the desk as he could not walk around because of covid regulations. He was surprised that she charged him for this, on 30 March 2021, as she had not addressed the matter with him.
23.5 He expressed his issues to Catherine and requested that he be referred to counselling and to date he was not given such an opportunity. He did not make the EAP request in writing as advised by Catherine as his problems started getting solved.
23.6 He was not aware of his last period as he was not familiar with the timetable, and he was confused and unaware of the subject at 12:00. The student’s missed only 3 days of lecturing in total.
23.7 He asked the student that reported him what they did when they realised, he was not coming into class to teach them as he was in the next lecture room. The issue was resolved, and all parties understood why he did not initially attend.
23.8 He informed Catharine that he would be getting to work possibly at 08:30 – 08:50 daily and he had problems and there was no housing available for him. The Admin Manager said the issue of accommodation was under investigated and he could not occupy the vacant place.
23.9 Mr Mtsolo contacted him after he heard that he was charged and came to him to make travel arrangements.
Negligence
23.10 The campus was working on a rotational schedule, whereby the lecturers saw the students in accordance with a rotational schedule. The manner in which this rotation occurred was that he saw his classes as follows; N4 on a particular week, then N5 the following week and N6 on the next week. There was also a lecture schedule which was in place. He would ultimately attend 3 physical days a week and 2 physical days the following week.
23.11 He had a confrontation with Catherine in the week of 01 March to 03 March 2021 before he was absent on the 4th, 5th, and 8th March 2021. This was regarding the N4 students. He was not aware that the N4 students lecture was in the lecture room across from his. He had group A and B. He had seen group A in the morning, and he was not aware that group B was also coming at 12.
23.12 He does not have a reason as to why he confused the two groups (A+B), but he can also illustrate that the timetable is not like his last campus as it did not illustrate days.
LEAVE
23.13 On 03 March 2021 he had a conflict with his siblings, and they attacked him and kicked him out the house. They broke his cell phone, and he could not communicate his absence with his manager. He only got a hold of a cell phone on 05 March 2021 where he sent an email , whereby he requested to resign.
23.14 He did not lay any criminal charges against his siblings, nor did he go to the hospital after they assaulted him.
23.15 He reported to work on 09 March 2021 where he, Catharine and the campus manager discussed the various contentious issues at play at the time. He was told that his days would be considered as unpaid leave. His June salary reflected a deduction of the 3 days as had been noted.
23.16 He was not told which days the verbal warning was for.

POE and POA
23.17 The POE and POA is the evidence of what gets done with the students. These can be completed at any given moment depending on the resources provided. He complained about a lack of a computer as he was sharing a laptop and a classroom with another lecturer. He could not use the laptop when the other lecturer was using it or when the other lecturer was using the classroom.
23.18 Catharine would always say that he must make arrangements and use the computer lab if he needs it. The computer lab was for students and was occupied during lectures and he had difficulty accessing it as a result.
23.19 He never received any training or was any hand over done regarding his work as was done for another employee as illustrated on A-5. He searched for files and found 2 from Sebone’s cabinet. He only received the physical file and dividers.
23.20 He knew he had to comply with the POE and POA requirements, but Catherine did not address the issue of making the resources available for him to execute as per her requirements and duties.
23.21 The File was not an overnight process, and he would have been able to complete it had he had the necessary resources. He received the templates via email but had issues printing and use of the various aspects like a calendar.
23.22 He submitted one of the files (POE/POA) for of the subjects he taught in the first semester. One of the subjects did not require a file and it was not compulsory to submit. This is because the subject is not moderated. He does not remember how many files he received.
23.23 He did not receive the physical syllabus and he did not have access to the system in April. He could not get documents through the system (QMS) as he was not connected. He was using his own email.
23.24 The warnings relating to the POE and POA are on R-86 only. All the documents were presented to him at once on 31 March 2021. The written warnings were given to him on the same day as the final written warning.
23.25 He received a document on 31 March 2021 as a reminder to comply with the POE/POA.
23.26 He was never supported, and he never had any intervention, and he was only told that this is not Polokwane campus. The intervention the Respondent’s witnesses spoke off was a disciplinary process and not an induction or intervention.
23.27 He refused to sign as he was not comfortable with the charges that had been given to him.
23.28 He filed an appeal within the 5 days as per policy and he did not receive his results within the 30-day period as per the policy. He received it after four months of lodging his appeal. He did not receive it on 29 October 2021 but on 08 November 2021.
23.29 The Disciplinary outcome of his hearing was issued on 05 July 2021, and he received it at a later stage.
24 Applicant in his cross examination testified as follows:
24.1 He continued working after lodging his appeal he was not on precautionary suspension. He understands that the clause allows for an extension and that an employee should be called back to work.
24.2 He does not know the exact date he received the outcome of the Disciplinary hearing but knows it was before 15 July 2021.
24.3 He thought the transfer was going to be convenient as it was his home province, and he was aware of where the campus was versus where he lived. He was promised a house or accommodation by Sebone who said he would possibly take her accommodation.
24.4 He understands that it was his responsibility to arrive at work on time and that was why he spoke to Catherine to inform her about his transport issues.
24.5 He never had a problem with the submission of POE/ POA files in Polokwane. He only submitted one POE/ POA file at the new campus and was still working on the other files.
24.6 He asked the students, what they did when they saw he was not reporting to class, when they reported his absence to Catherine. This was the only question he could ask as most students go looking for the teacher.
24.7 He was not aware that he could have objected to the written warning as he did not read the clause on the warning. He did not record a grievance in writing regarding a lack of tools of trade. He only gave verbal grievances daily. He saw it as dyer to report a grievance as it was too early. The grievance did not come to mind as he had personal issues.
24.8 He did not request EAP (psychological intervention) as his problems at home were address or resolved. In Polokwane they had a psychologist in the campus and in the current campus he was told to write a letter to external psychologists.
24.9 He did not know that it was compulsory that it is a strict procedure that he should write the letter as he was not aware of the campus procedures.
24.10 When he agreed to or did the cross transfer he did not understand that he would be required to do everything that the Sebone was doing. He is aware that the college should not have incurred further costs as a result of the cross transfer. He did not mislead the campus as there was no short interview.
24.11 The briefing sessions were not meetings or induction programs. They were 5 or 10-minute sessions. He was never familiarized with anything on how the college procedures were.
24.12 He expected a formal induction and not the morning briefing sessions which were between 07:30 – 08:00 and he received feedback or updates on these from a colleague.
24.13 With regard to the memorandum on induction and other relevant aspects, he attended the meeting which was intended to be an induction and ended up being a disciplinary hearing. He did not receive any charges then, but the cross questioning convinced him it was a disciplinary hearing.
25 Applicant in his re-examination testified as follows:
25.1 The induction process was an interrogation and not all the agenda items on R-110 were talked about. There was no HR representative in the meeting.
26 Tinstwalo Victoria Mlambo in her examination in chief testified as follows:
26.1 She started with the Respondent in 2008. She worked in the same campus as the Applicant. In 2013 she helped Welheminah get accommodation when Welheminah started at the campus. What occurs is the employee is given housing for the initial month and the employee then has up to 3 months to find their own accommodation. The campus manager is the one that is supposed to help regarding the accommodation.
26.2 A proper hand over is important and A-5 is an example of how it is supposed to be done. The example is the hand over where she got a hand over after she returned from being dismissed.
26.3 The HOD is required to give the lectures all the documents needed for the POE/POA and there is an induction in detail for new employees. An explanation is needed even before the employee starts. The HR Manager must illustrate the policies and other relevant material and all relevant info. The HR then also generates a work email address for the new employee.
26.4 There is then an induction where lecturers are introduced to the students and then a departmental induction for students. All these aspects must be recorded, signed, and documented.
26.5 The last step is the supervisor must check the lecturers file before they go and teach.
26.6 The minimum files needed are three files and not four, the fact that the Applicant was required to have done POE’s and POA’s for four subject is abnormal.
26.7 The campus is a disaster campus and there are not sufficient tools like text books.

ANALYSIS OF EVIDENCE AND ARGUMENT
27 Section 138 (7) of the Labour Relations Act 66 of 1995 requires an arbitrator to issue an award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration hearing.
SUBSTANTIVE FAIRNESS
28 The Applicant was given three charges, namely;
• Charge 1: Gross insubordination; contravention of section 17c of the employment of educators act by disobeying, disregarding and wilfully defaulting in carrying out a lawful instruction given to you as the educator by the person in authority to give it.
- Verbal warning, written warning, and final written warning with regards to POE’s. He was asked to provide the POE’s which he did not do.
• Charge 2: Negligence; contravention of section 17d of the employment of educators act by being negligent or indolent in carrying out the duties of the educators’ post.
• Charge 3: Unauthorised Absence; contravention of section 17m of the employment of educators act by being absent from the office or duty without leave or valid reason.
29 Based on the evidence brought before me the following appears correct;
Charge 1
29.1 The Applicant was required to provide POE’s and POA’s for the subjects he was teaching. The Applicant in his own testimony alludes to this requirement for atleast two if not three of the subjects he taught.
29.2 It is common cause that the said POE’s and POA’s for all his subjects for the first semester were never submitted to date, whereas the POE and POA submission for his subjects for the remainder of the year were not an issue and therefore submitted as required.
29.3 The fact that there were no issues throughout the rest of the year then shows that the requirement was valid and was attainable. I would then have to ascertain whether the requirement was reasonable and or the Applicant’s defences are valid.
29.4 Some of the Applicants defences were the fact that he did not have the complete know how as was not inducted, that he did not have all his predecessors previous files in order to use as precedent, that he received all the documents to create the POE’s/ POA’s via email but he did not have the necessary tools (from a laptop/ computer to a printer and paper) to print and compile the required files, and that the POE/ POA function was different at the current campus as opposed to his previous campus he worked for.
29.5 There was no evidence presented to me on how the circumstances were different in the subsequent semesters, to allow the Applicant to perform as required in the subsequent semesters before his dismissal.
29.6 There are process guidelines on R-10, which note the requirements to be followed regarding the POE/ POA functions, and the parties disagree with regards to the responsible person on certain functions.
29.7 What is before me is the fact the in the subsequent semesters the Applicant was able to deliver independently and without being hindered by any of his defences noted above. The Respondent stated this point as proof that the Applicant knew what was required and was able as he did in the subsequent semesters.
29.8 The Applicant did not show me what was different, how he overcame his hindrances, which he used as defences for his failures in the first semester, in the subsequent semester. This then diluted the validity of his defences.
29.9 This then emboldens the Respondents submission that the policy as per R-10 were guideline requirements expected from the Applicant and that the Applicant was able to perform these irrespective of the defences he has stated.
29.10 The only issue which would remain would be whether the Applicant was aware of the above-mentioned requirements as per R-10 or reasonably expected to be aware.
29.11 My belief based on the submission brought before me is that if the Applicant did not know, it was because he did not want to as he was called in to the office for various sessions to help assist him. He did not pitch to some and saw others to be hostile and or to be disciplinary hearings and could not explain or link which acts mad it hostile or disciplinary hearing like. He merely states that he was asked various questions and without his representative.
29.12 This then begs the question as to how else he would have been helped, guided or trained if he did not attend the allocated sessions and if he was not asked questions to ascertain the root causes of his issues.
29.13 He states that these sessions were not induction training as they were 10-15 minutes long and he never finished the one as he walked out before the agenda had been completed. This then shows that he was unwilling to know, be informed or atleast be assisted to overcome any of his hindrances which he uses as defences.
29.14 The Applicant further admits to being late continuously and missed out on other morning staff briefings where other help could have been provided to him.
29.15 There are no other lecturers which raised the similar hindrances, that failed to comply with the POE/ POA submissions, that were charged for such a failure and nor did the Applicant raise any grievance to the effect that the POE/ POA requirement was unreasonable based on the policy or based on the hindrances he now brigs as defences.
29.16 Furthermore, the Applicant was given an extension or 7-days grace period to submit the require POE’s and POA’s, and he did not comply. In these proceedings he elected to challenge the extension or by stating that his supervisor gave conflicting instructions.
29.17 Wasteman group v SAMWU states that – Gross subordination includes a reasonable and lawful instruction – by way of warning to the employee and followed by a serious refusal to carry out.
29.18 SAMWU obo of Felicia v CCMA and other - Gross insubordination – evidence is required to demonstrate a persistent and wilful refusal to comply with an instruction which constitutes gross insubordination.

Charge 2
30 The Applicant appears to admit a few charges which relate to his negligence, namely;
30.1 His tardiness, which he defends with various accounts such as not being given his replacement’s (Sebone) accommodation, there not being a bus, which could bring him to work early enough and that he excused his tardiness with his supervisor who was aware that he was going to be late.
30.2 His missing of a specific class and was reported by the students, which he defends by stating he was confused by the timetable which was different to that of his previous campus. He further put the blame to the students, which he also made directly to them on the date in question, asking what efforts they did to get his whereabouts as he was in the class adjacent or next door and other students go looking for their lecturers if they have not attended.
30.3 Him sleeping whilst he was invigilating a test, which he defends by stating that he fell asleep involuntarily as a result of his situation at home. He was seated at the desk as he could not walk around because of covid regulations. He was surprised that his supervisor charged him for this, on 30 March 2021, as she had not addressed the matter with him.
30.4 It is common cause that the Applicant committed these transgressions. The question is whether his reasons are plausible and or whether they are justifiable as defences.
30.5 My general opinion is that the Applicant’s defences appear as excuses which reflects that he shows little accountability and responsibility for his own actions.
30.6 With regards to tardiness, which is his lateness, he blames not getting accommodation as his reason for being late. He illustrates that he was promised said accommodation by Sebone, which is problematic in that he is aware that she did not have the necessary authority or power and he did not call her to witness his statement.
30.7 The manner he responds regarding missing the student’s class by putting blame on them shows how low the Applicant’s level of accountability is. I can say the same with regards to how he attempts to shirk the blame for him sleeping on it being involuntary and cause by how he could not move around due to covid restrictions.
Charge 3
31 It is common cause that the Applicant was absent without the necessary permission and his defence is that he had personal issues which led to him needing police help but he never reported a case as the issues were dealt with. The Applicant makes further aspersions that he was denied access to undergo the therapy route available to him where as he failed to follow the requests made by his supervisor that he pen a request down.
32 It is based on the above points that I find that the Applicant committed the said misconducts, and he knew it was wrong and or it is reasonable to believe he should have known that he was wrong.
33 Progressive discipline was complied with in that the applicant was warned numerous times and given warnings before being dismissed.
34 According to Section 188(1) of the LRA, the dismissal of the employee will be unfair if the employer fails to prove that the dismissal was effected for a fair reason related to the Applicant’s conduct or capacity or based on the employer’s operational requirements, and that the dismissal was effected in accordance with a fair procedure.
35 Item 7 of Schedule 8 of the LRA provides that;
“Any person who is determining whether a dismissal for misconduct is unfair should consider-
(a)Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if the rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard.”
36 The Applicant was given reasonable and lawful instructions, he also received warnings which were followed by a serious refusal or failure to carry out said instructions.
37 Furthermore, the Respondent provided evidence to demonstrate a persistent and willful refusal or failure by the Applicant to comply with an instruction which constitutes gross insubordination.
38 In the premises I find that the Respondent was successful in proving that the Applicant contravened a rule, on a balance of probabilities in regard to the charge and the Applicant was unable to prove that the charge was not valid.
39 I find that the Applicant’s dismissal was Substantively fair in this regard.
PROCEDURAL FAIRNESS
40 The Applicant challenges the following aspects in procedure, namely that;
40.1 The Respondent finalised the appeal beyond the 30-day period as prescribed by resolution 1 of 2003.
40.2 The chairperson of the disciplinary hearing was conflicted as he was the campus manager and formed part of the Applicant’s reporting lines.
41 Based on the evidence brought before me the following appears most probable;
41.1 Paragraph 8.8 disciplinary code speaks of precautionary suspension being for 30 days. The Employee is then required to return to work if on suspension pending the outcome of the appeal.
41.2 It is common cause that the Applicant was not on precautionary suspension. This particular paragraph of the policy is therefore inconsequential to the Applicant.
41.3 In his own testimony the Applicant concedes to the fact that he continued working after lodging his appeal, that he was not on precautionary suspension. He further states that he understands that the clause allows for an extension and that an employee should be called back to work if he is on precautionary suspension.
41.4 The correct question to ask is whether the Applicant was prejudiced in any way by the delay of his appeal outcome. This would be ascertained by the end result which was a four-month delay of a dismissal outcome. The Applicant received four more salaries as a result of the delay.
41.5 Not much was presented to me and argued before me, regarding the aspect about the campus manager being conflicted as a result of being part of the Applicant’s reporting lines.
41.6 On the face of it I cannot see how the above allegation is unfair on the Applicant as the campus manager is not the Applicant’s direct supervisor and the campus manager is the highest report in the organisation, in that there is no other employee above the campus manager. No other employee or disciplinary chairperson was mentioned and or suggested by the Applicant as the most appropriate as there was none.
42 Item 4 of schedule 8 of Code of Good Practice: Dismissal states the requirements for procedural fairness as follow:
“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the inquiry, should communicate the decision taken, and preferably furnish the employee with written notification of that decision”.
43 Based on the above I therefore find that the paragraph stated is not applicable to the Applicant in this instance, the Applicant was not prejudiced by the delay and the delay cannot be seen as being procedurally unfair on the Applicant.
44 I further find that there was no procedural unfairness as a result of the campus manager being the chair of the Applicant’s disciplinary hearing.
45 I therefore find that the Applicant’s dismissal was procedurally fair.
AWARD

I make the following award:
46 The Applicant’s dismissal was substantively and procedurally fair.
47 The Applicant’s dismissal is upheld and his application is hereby dismissed.

Signature:

Commissioner: Mmeli Danisa
Sector: Education