ELRC853-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:

NEHAWU obo Nyembe S “the Applicant”
and
THE HEAD OF THE DEPARTMENT OF HIGHER EDUCATION & TRAINING “the Respondent”

ARBITRATION AWARD

Case Number: ELRC853-22/23KZN

Date of arbitration: 20 April 2023 & 13 June 2023

Date of award: 05 July 2023

Lungisani Mkhize
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration could not commence on 20 April 2023 as there was load shedding and attempts to meet face to face failed as the Applicant and his Representative had challenges to reach the agreed venue. The matter was set down for 13 & 14 June 2023 and finalized on 13 June 2023.

2. The arbitration was held at the Elangeni TVET College Central Office in Pinetown.


3. The Applicant, Mr. Sikhumbuzo Nyembe was present and represented by Ms. Sibahle Gwala, a NEHAWU Union Representative. The Respondent, the Head of Department of Education, KwaZulu Natal was represented by Mr. Nkosinathi Mkhize, it’s Assistant Director for the Human Resource Management and Development Section. The parties provided a bundle of documents each.
4. The proceedings were digitally recorded.

5. The services of an interpreter were not requested. However, during the hearing, it became apparent that they were needed and Mr. Siphiwe Zondi, an employee of the Respondent provided interpreting services to avoid an adjournment. Mr. Zondi has been a sworn interpreter with the Department of Justice in the Pietermaritzburg High Court for a number of years.

ISSUE TO BE DECIDED

6. I am required to determine whether the dismissal of the Applicant was substantively unfair or not. Should I find in the affirmative, I must determine appropriate relief.

BACKGROUND
7. On 11 February 2013, the Applicant was employed on a permanent basis as a mechanical engineering Lecturer at the KwaDabeka Campus of the Respondent. On 04 June 2021, an incident took place at Mr. Knowledge Mambo’s office. The Applicant’s superior and the Applicant were charged and dismissed on 07 February 2022 as a result. At the time of the Applicant’s dismissal, he earned gross monthly remuneration of R19 392.25.

8. The Applicant appealed the decision to dismiss him on the 29 April 2022 and the Respondent upheld his dismissal on the 15 December 2022. She then considered herself dismissed and referred an unfair dismissal dispute to the GPSSBC but her matter was referred to the ELRC.


9. On 3 February 2023, the Applicant referred an unfair dismissal dispute to the ELRC challenging substance only.

10. The ELRC then scheduled the matter to be arbitrated before me on the 26 April 2023 and on the 13 & 14 June 2023 as shown in paragraph [1] of this award. The matter was finalized on the 13 June 2023 and the 14 June 2023 was canceled.


SUMMARY OF EVIDENCE AND ARGUMENTS

11. I only summarized the evidence which I regarded to be relevant to the dispute and which aided me in reaching my decision.

The Respondent’s case


12. In his opening statements, Mr. Nkosinathi Mkhize, the Respondent Representative, submitted the following: The dispute about fairness of the dismissal and the employer alleged that the Applicant committed an offence. Public service is highly regulated and there is a Collective Agreement for public services. Clause 20 under annexure c under acts of misconduct of the Collective Agreement no 1 of 2013 is relevant as it related to assault, or attempts or threatening to assault another employee or person whilst on duty. In common law threats of harm may constitute a completed assault in appropriate circumstances. Witnesses would come and show that an important rule had been broken.

13. A disciplinary chairperson found the Applicant guilty of misconduct and recommended dismissal. The Applicant appealed the decision to dismiss him and Dr. Nzimande, the appeal chairperson, upheld the dismissal. Mbambo will testify as to what happened as he relied on a rule to control the department. The Applicant broke the rule. Thus, dismissal was the only option.


14. The Respondent Representative, Mr. Mkhize, called his first witness, Mr. Knowledge Kwenzakwenkosi Mbambo whom the Applicant reported to in the mechanical engineering department. Mbambo testified under oath as follows: He met the Applicant in 2017 at the KwaDabeka Campus and realized there were things to correct like late coming, late submission of reports and not going to class. There were other things that were still uncorrected and ongoing. The Applicant was a hard working person who promised a lot and there were no personal issues between him and the Applicant.

15. Mbambo further testified that on 04 June 2021, whilst the Applicant was in his office, the Applicant pointed a finger at him, threatened to slap him and further hurled insults at him. Mbambo then sent an email to Ms. Langa, the KwaDabeka Campus Manager informing her of what transpired in his office.


16. What led to the incident was that the Applicant was asked to send a POA file on or by 04 June 2021 at 12:00pm but had not. Mr. Mbambo called the Applicant to remind him and they argued. The Applicant informed Mr. Mbambo he would bring the file and dropped the call. Thereafter, the Applicant charged into Mr. Mbambo’s office, pointed a finger at him promising to slap him. Mr. Mbambo ran away from the Applicant. Mbambo informed the Applicant he needed the file. The Applicant proceeded until he was on Mr. Mbambo’s side of the table. Mr. Xaba came and realized what was happening and turned back. Mr. Mbambo went to inform Mr. Majola and called Ms. Langa who told him to write an email to HR explaining the whole thing.

17. Mbambo further testified that after the incident, he felt undermined, intimidated and threatened. The issue made him feel emotional as it was the first time his junior colleague did something like that to him. Mbambo confirmed what he testified at the disciplinary hearing.


18. Mbambo testified further on an incident that took place in the Emaqadini Campus where students received marks for practicals which they did not do. He investigated and confirmed this was true. He was later threatened by two men he believed were hit men. That is how he was moved to the KwaDabeka Campus. This was when he had conflict with a Mrs. Mngadi, a colleague.
19. On 07 June 2021, Ms. Langa called the Applicant and Mr. Mbambo to a meeting in her office to establish what happened on the 4th of June 2021. The Applicant denied pointing a finger at Mr. Mbambo and explained that he was going to submit the required POAs. Mbambo could not remember what was agreed on going forward at the meeting.

20. Under cross examination, Mbambo confirmed the issue of Mrs. Mngadi that led to his move to the KwaDabeka Campus. Mbambo explained that he had to get the work he required from the lecturers and need not beg as there were deadlines to be met. There were curriculum documents for the Respondent which all lecturers have access to and knew submission dates. Mbambo did not just rush people. There was a schedule to be followed.

21. Mbambo denied that he threatened anyone and that he carried a gun at work as it was illegal to do so. Mbambo denied that Mr. Xaba was already in his office when the Applicant came. When asked what he did to cause the Applicant to behave the way he did, Mr. Mbambo responded that the Applicant was used to behaving the way he did as he tore up leave forms previously in his (Mbambo’s) presence and disrespected him.

22. Mbambo denied that the Applicant informed him he needed 30 minutes for lunch and came to explain such in his office. All he remembered was being sworn at. Mbambo ran from the Applicant to avoid being hurt as he was mature and had seen a lot. He kept informing the Applicant that he wanted the POA file but the Applicant was shouting and swearing and displaying anger. The Applicant submitted the POA file after the day of the meeting with the Campus Manager. Mbambo denied auditing the Applicant’s POA file.

23. In re-examination, Mbambo explained that he did not threaten staff but requested lecturers to do and submit their work. The Qadi and Zungu incidents were solely because of that.

24. The Respondent Representative called his second witness, Mr. Marvin Majola the HOD at the KwaDabeka Campus who testified under oath as follows: He remembered Mr. Mbambo coming into his office informing him that he was threatened by the Applicant with aggression to the point of fearing for his life. In his assessment of Mr. Mbambo at the time, he believed what he told him. He suggested that Mr. Mbambo call the Campus Manager to guide them. The following Monday, a meeting was held between the Campus Manager, Mr. Mbambo, the Applicant and himself. The Applicant confirmed Mr. Mbambo’s version as to what happened in the office and he was asked twice or thrice and he confirmed each time.

25. Majola further testified that the Applicant admitted to threatening and aggression towards Mr. Mbambo. The Applicant had to be constantly requested to calm down. He was trustworthy, credible and led by example to staff. He had nothing to gain in this matter personally regardless of how the outcome came out. Threats and swearing at work cannot be tolerated as per the Respondent’s policy. The Disciplinary Code states that threat of or actual physical violence/assault as a first offence attracted a penalty of dismissal. The ELRC Collective Agreement No 1 of 2013 lists assault, or an attempt or threat to assault another employee or person while on duty and intimidation or victimization of fellow employees or clients or students as also being dismissible misconduct.

26. Under cross examination, Majola confirmed that he was not with the Applicant in his office when the incident took place and only relied on what the Applicant had informed him. Majola reiterated that the Applicant admitted to the allegations against him. When it was put to him that Mr. Mbambo testified that the Applicant denied the allegations against him in the meeting at the CM office, Mr. Majola responded by stating that the incident took place a long time ago and when there are contradicting views, another witness can assist to clarify.

27. In re-examination, Mr. Majola confirmed that the Applicant admitted to the allegations against him.

28. The Respondent Representative then called his third witness Ms. Lindiwe Langa the Campus Manager at the KwaDabeka Campus who testified under oath as follows: On 04 June 2021, she was at the workplace, and then later she went to see her doctor at the Entabeni Hospital. On her way to the hospital, she was called by Mr. Mbambo who informed her that the Applicant threatened and swore at him and she could not attend to the issue then. She asked Mr. Mbambo to write her an email about the issue.

29. On Monday, she called Mr. Majola, Mr. Mbambo and the Applicant into her office and Mr. Mbambo said he expected POAs from lecturers on the 4 June 2021. Since he had not received POAs from the Applicant, he called him to remind him to submit. The Applicant said he was coming. Mr. Mbambo called him again and the Applicant came into his office and there was an exchange of words and then the Applicant threatened and swore at Mr. Mbambo. Mr. Mbambo then left the office and tried to contact her.


30. Ms. Langa further testified that she also asked the Applicant what happened and the Applicant admitted to swearing at the Applicant and she asked him in Zulu again (“Wamthuka Pho?) and he confirmed again. She then adjourned the meeting thereafter. When an employee threatens and victimizes another employee or person, the perpetrator must be subjected to disciplinary action.

31. Under cross examination, Langa testified that senior lecturers did the auditing of POAs and informed her when they were done. The Applicant’s file was not audited as he did not submit it. It was put to Ms. Langa that the Applicant’s POA file was submitted and audited and there was no response. Langa relied on what Mbambo informed her and asked him to put it on an email. Langa confirmed that at the meeting on Monday, she heard the Applicant admitting to the allegations against him and asked him twice even in IsiZulu.

32. There was no re-examination of the testimony of this witness.

The Applicant’s Case

33. In his opening statement, the Applicant union representative, Ms. Sibahle Gwala made the following submissions: The charge is disputed as no one would threaten another employee whilst on duty. The charge against Mr. Nyembe was not true. The South African law accepts first hand evidence. The Applicant was under the supervision of Mr. Mbambo and had never pointed a finger at him. The Applicant suffered a mental disturbance of some sort due to his dismissal matter and those in the proceedings were requested to be patient with him.

34. The Applicant’s union representative, Ms. Sibahle Gwala called the Applicant, Mr. Sikhumbuzo Nyembe who testified under oath as follows: He reported for work in the morning and invigilated a computer studies paper which sat from 09:00 to 12:00. Mr. Mbambo had requested that they submit files that day. He was going to submit the files after invigilating. He submitted the papers to the Exam Officer and went to his office at the mechanical engineering workshop. Then Mr. Mbambo called requesting the files. He then requested time for lunch. Mr. Mbambo shouted at him requesting the files.

35. The Applicant then went to Mr. Mbambo’s office and found him auditing Mr. Xaba’s file. He then informed him he needed 30 minutes for lunch but Mr. Mbambo shouted at him and he decided to leave. Mr. Mbambo then fabricated the story he told about him that he charged at him when he did not.

36. The Applicant then carried on with his duties for the day. On Monday, he was called to a meeting with Mr. Majola, Mr. Mbambo and Ms. Langa where they tried to resolve the matter and he apologized for leaving Mr. Mbambo on Friday whilst shouting. Mr. Mbambo asked him to submit the file the following day. He then found out that Mr. Majola wrote a letter to the central office on behalf of Mr. Mbambo.

37. There was schedule which specified when the file had to be submitted. The POA file was due on 04 June 2021 and he was within the due date. The Applicant denied pointing a figure and shouting at Mr. Mbambo. When he speaks, he uses hand gestures. Maybe his use of hand gestures made Mr. Mbambo feel as if he was pointing at him. No one else was in the office. He was surprised why Mr. Mbambo denied he found him with Mr. Xaba.

38. At the meeting held in Ms. Langa’s office, he denied all the allegations against him. According to Mr. Mbambo, there were two of them at the time of the incident, but according to him, there was three of them in the office. Ms. Langa’s testimony was more credible than that of Mr. Majola and Mr. Mbambo.

39. The Applicant further testified that he reported for duty at 07:45 on 04 June 2021 to fetch exam papers from the Exam Officer and went to the exam room. No one could release him from the invigilating duties. The Applicant indicated to Mr. Mbambo that he had stood a long time but they could not hear each other well. So he decided to go to him. Mr. Mbambo refused to give the Applicant a break. The Applicant denied threatening or intimidating Mr. Mbambo. Mr. Mbambo was close to the staff room where they make copies. Had he charged and shouted at him, others would have heard. He had no reason to assault his Supervisor.

40. The Applicant testified that Mr. Mbambo told him that Mr. Majola had reported the matter to the central office and he did not know why Mr. Mbambo did not report the matter himself.

41. Under cross examination, it came out that Mr. Mbambo copied HR at the central office on his email to Ms. Langa. It was not Mr. Majola who informed the central office as submitted by the Applicant.

42. The Applicant testified that he was invigilating till 12:00 midday. When it was put to him that he was finished at 10:00, he submitted that collecting papers and sending them to the exam office and counting them was part of invigilating.

43. When the Applicant was called by Mr. Mbambo, he was in his office and was awaiting the meals he had sent for. He requested to get time to eat. The Applicant did not explain why he found it important to state that when he spoke, he used his hands. The Applicant used hands to count and not to insult Mr. Mbambo.

44. The Applicant did not bring Mr. Xaba to testify and follow the subpoena route as he was still on contract and feared to lose his job and ignored his calls when he called him. The Applicant reiterated that he found Mr. Mbambo and Mr. Xaba sitting and auditing Mr. Xaba’s file. When it was put to him that at the disciplinary hearing, he testified that Mr. Xaba was outside during the commotion and had left because he could see a quarrel brewing, the Applicant said he did not understand. He could not comment when it was put to him that Xaba was outside the office when the commotion happened.


45. The Applicant had never laid a complaint against Mr. Mbambo as there was nothing to cause him to. When it was put to him that if Mr. Mbambo had been cruel to him, he would have complained, he did not comment. When presented with the grievance procedure of the Respondent, the Applicant confirmed that he did not raise any complaint against Mbambo, Majola and Langa. He agreed there was no animosity from all three witnesses against him but he stated one could never know people’s hearts.

46. At the meeting in Ms. Langa’s office, the Applicant agreed to everything and to swearing at Mr. Mbambo due to the pressure on him that day as it was three people against him alone. He cannot remember if he ended up agreeing. He and Mbambo cannot remember what was said in that meeting.

47. When asked if Majola, Langa and Mbambo all lied against him, the Applicant said he will ever know people’s hearts. Mbambo was so old to lie about him. The word fokof was not an insult. There was no answer to whether the word stupid was an insult. The Applicant did not know whether the word balls was an insult or not. The Applicant did not know why Mr. Mbambo would fabricate lies against him.

48. In re-examination, it came out that all students finished at 10:00, the invigilator still had other tasks to perform like collecting papers, deleting answers in the computers in preparation for the next group. Whilst on the phone, the Applicant asked Mr. Mbambo to wait for him as he was coming but he had sent for food.
49. The Applicant further reiterated that he did not point a finger, swear and charge at Mr. Mbambo. The Applicant denied the allegations against him at the meeting in Ms. Langa’s office. He denied using the words “balls” and “fokof”.

ANALYSIS OF EVIDENCE AND ARGUMENT

50. According to item 7 of Schedule 8, The Code of Good Practice-Dismissal to the Labour Relations Act, no 66 of 1995 (as amended) any person who is determining whether a dismissal for misconduct is unfair should consider:
(i) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the work-place and
(ii) If a rule or standard was contravened, whether or not:
(iii) The rule was valid or reasonable rule or standard;
(iv) The employee was aware or could have reasonably be expected to have been aware of the rule or standard;
(v) The rule or standard has been consistently applied by the employer and
(vi) Dismissal was an appropriate sanction for the contravention of the rule or standard.

51. The issue to be determined is whether the dismissal of the Applicants was substantively fair or not. The Applicant was charged with one count namely, assault or attempt or threatening to assault another employee or person while on duty in that: On the 4 June 2021, while the Applicant was in Mr. Knowledge Mbambo’s office (his supervisor) pointed a finger at him, threatened to slap him and further hurled insults at him.

52. The charge is formulated from the ELRC Further Education and Training College Bargaining Unit Collective Agreement No 1 of 2013, clause 20 of Annexure C relating to acts of misconduct. The document is a generic contract of employment for post level lecturers appointed in the public sector further education and training colleges. The agreement applies to all lecturers as defined in terms of the Further Education and Training Colleges Act 16 of 2006, whether such employees are members of a trade union who parties to the agreement or not. The Applicant in this matter is bound by the above mentioned Collective Agreement.


53. In the workplace, employees are expected to exercise self-control and not assault or threaten to assault one another. This is a reasonable requirement in an institution of learning and even any workplace. Clause 17.1 of the Applicant’s contract of employment states that the employee will be subject to the disciplinary procedures and rules of the College as determined from time to time. Since the Applicant was a lecturer at the Respondent and based on common law as well, I am satisfied that he was aware of the rule regulating his conduct. Ignorance of the law is no excuse.

54. To determine whether or not the employee contravened a rule or standard regulating conduct, I analyzed the testimony of the witnesses and the documents presented based on the civil standard of proof of a balance of probabilities.


55. Mr. Mbambo testified that he called the Applicant to request him to bring a POA file as it was past his due time of 12:00. The Applicant got angry, dropped the call and charged to his office pointing a finger at him, threatening to slap him and swearing at him to the point that he had to run away from his desk and the Applicant ended on his side of the desk.

56. Mbambo then went to inform the Campus Manager and could not find her. He then went to inform the HOD, Mr. Majola who asked him to call the Campus manager. The Campus Manager asked him to send her an email and copy Human Resources at the Central Office. Mbambo also testified that there had been many transgressions by the Applicant which he dealt with but some were ongoing and unresolved.

57. The Applicant denied threatening and swearing at Mr. Mbambo in his evidence in chief. However, under cross examination, he admitted to agreeing to the allegations against him at a meeting held in the Campus Manager’s office on the 7 June 2023 as he was under pressure. He apologized to Mr. Mbambo about the incident and thought it was dealt with and over.

58. The Applicant contradicted himself on many occasions in his testimony. He agreed to anything he was alleged to have done against Mbambo at a meeting in Langa’s office at the same time, he denied the charges against him. The Applicant found Ms. Langa’s version of events to be credible and yet Langa testified that he admitted to the allegations against him and she even asked him twice and in Zulu if he indeed admitted to the allegations against him and he agreed.

59. The Applicant could not explain why Mbambo would fabricate such a story against him except to say once he could not know what is in a man’s heart. The Applicant testified that the word “fokof” was not an insult and did not know if calling someone by his balls was an insult. I found this to be highly improbable.

60. The deadline for submitting the POA file was the 4 June 2021 at 12:00 midday and the Applicant missed this deadline. Yet, when he was requested to comply, he requested to first have lunch. This is an indication of the Applicant’s negative attitude and lack of urgency towards his work and his supervisor. The Applicant did not take complying with his work deadline seriously. Moreover, he got angry when he was confronted about complying with the Respondent’s deadline.

61. At the disciplinary hearing, the Applicant stated that Xaba was outside Mbambo’s office and at the arbitration hearing; he testified that he found Xaba inside Mbambo’s office. The Applicant could not remember some of the details discussed in Ms. Langa’s office but there was a resolution of the matter and he thought it had passed and was surprised when it was reported to the central office. The Applicant was inconsistent in his testimony as he contradicted himself a significant number of times as shown above. Moreover, his behavior of disturbing Mr. Mbambo’s testimony a few times in my presence to the point of him being moved away from Mr. Mbambo also indicated his lack of self-control even in critical situations where important decisions about his life are to be made.

62. Langa and Majola’s testimony corroborate each other from when they were made aware of the incident in Mbambo’s office to the meeting held on the 7 June 2021 in Langa’s office. Both testified that the Applicant admitted to the allegations against him. The Applicant himself corroborated this when he testified that he agreed as he felt under pressure. I find both Langa and Majola’s evidence to be credible. Only Mbambo deviated by stating that the Applicant denied allegations against him but also stated that he could not remember everything discussed at the meeting as it was a long time (two years) ago. Mbambo’s inaccurate recollection could take place as he was directly involved and it was indeed a while back since the incident had occurred

63. The emails sent by Mr. Mbambo to the Campus Manager and Human Resources corroborate the testimony of Langa and Majola. Based on the evidence before me, I find the version of the Respondent more probable than that of the Applicant. Thus, it is my finding that the Applicant broke a rule.

64. The Respondent’s Disciplinary Code under social offences, lists threat of or actual physical violence as dismissible offences for the first occurrence. I find that the Applicant’s conduct breached the trust relationship with the Respondent.

65. In light of the factors mentioned above, I am satisfied that the sanction of dismissal is fair.

AWARD

66. I hereby find that the dismissal of the Applicant, NEHAWU obo NYEMBE S by the Respondent, Department of Higher Education & Training, to be substantively fair.

67. Accordingly, the Applicant’s dispute referral is dismissed.


L Mkhize
Arbitrator 05 July 2023
ELRC853-22/2