ELRC828-22/23GP

IN THE ELRC ARBITRATION
BETWEEN:

Bongani b Mthimunye Applicant
and
Department of Higher Education and Training (DHET)
/ Central Johannesburg TVET College Respondent


ARBITRATION AWARD

Case Number: ELRC828-22/23GP
Arbitration date: 28 June 2023
Date of Award: 24 July 2023

Pitsi Maitsha
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. On 17 March, 18 April, 30 May 23 and 28 June 2023 an arbitration hearing was held at Central Johannesburg College. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.

2. The applicant is Bongani Raymond Mthimunye, he was in attendance, and he was represented by Mr. Sizwe Dlamini, the union official from the National Education, Health and Allied Workers Union (NEHAWU). The respondent is the Department of Higher Education and Training (DHET) / the Central Johannesburg TVET College- and was represented by Mr. Thokozani Johnson Nkambule, the Assistant Director: Labour Relations.

3. The parties gave the evidence under oath. The proceedings were digitally recorded.

ISSUE TO BE DECIDED
4. I am required to determine whether the dismissal of the applicant was effected for a fair reason and in accordance with a fair procedure. If so, make an appropriate award.

BACKGROUND DETAILS
5. The parties held a pre-arbitration meeting on 15 February 2023 and agreed on the following in terms of the Pre-Arbitration Minutes:

6. In terms of common cause facts: The respondent has employed the applicant in the capacity of Lecturer effectively on 1 April 2016. At the time of dismissal on 16 January 2023 he was earning R23 007, 62 per month.

7. He was dismissed on 16 January 2023 following a disciplinary hearing which was held over seven days. It was held on the following dates: 15 June 2021, 26 July 2021, 27 July 2021, 12 October 2021, 15 March 2022, 16 March 2022 and 4 May 2022. He was notified of such disciplinary hearing on 5 November 2021 with the following allegations: “1. GROSS INSUBORDINATION: You are hereby charged with a serious of misconduct by refusing to carry out a lawful order or routine instruction without just or reasonable cause in that during July-August 2020 examination circle at or near Ellis Park Campus you refused to invigilate as instructed by the Deputy-Principal: Academic Affairs, Mr. Merton, through a Circular dated 1 July 2020 and as instructed by Head of the Department. You thereby in the process failed to carry out your duties as the Lecturer. 2. DERELICTION OF DUTY: You are hereby charged with dereliction of duties in that on or around July-August 2020 at or near Ellis Park Campus you did not moderate Plumbing Theory N1 subject/and/or students assigned to you and thereby failing to execute your duties. 3. FAILURE TO COMPLY WITH COVID-19 PROTOCLS You are hereby charged with the act of serious misconduct in that on or around July-August 2020 at or near Ellis Park Campus you failed to adhere to Covid-19 protocol in that you refused to sign a register, answer basic question of Covid-19 and take temperature as required when entering the College. As a result you failed to obey lawful and reasonable instruction without just and a reasonable cause; and 6. You are hereby charged with a serious act of misconduct for refusing to carry out or routine instruction without just and reasonable cause in that on or around the 4th of September 2020 at or near Ellis Park, Campus, you refused to participate in registration process wherein you agreed that you will register N3 students as per allocation that was discussed on the departmental meeting held on the 20th August 2020”.

8. He had a clean disciplinary record.

9. The parties recorded the following as the facts that are in dispute: SUBSTANTIVE FAIRNESS: the existence of a rule, validity or reasonability of the rule, contravention of the rule and appropriateness of the sanction. PROCEDURAL FAIRNESS: the chairperson was bias.

10. Aggrieved by dismissal, on 24 January 2023 the applicant referred an alleged unfair dispute to the ELRC. He is seeking retrospective reinstatement.

THE EVIDENCE OF THE RESPONDENT
THE EVIDENCE OF BALANGANANI GLADWIN MATSILA: THE ACTING DEPUTY-PRINCIPAL: INNOVATION AND PARTNERSHIPS
11. He testified that he started on the position of Acting Deputy-Principal: Innovation and Partnerships, in May 2022. He previously occupied the position of Skills Development Assistant Director. He was the Campus Manager. His duties included oversight on the academic and corporate affairs issues or matters, dealing with the finances of the campus, leading the campus procurement committee, responsible for examinations as the Chief Invigilator in the campus, making sure that teaching and learning takes place and give support to the departments in terms of consumables they use and teaching and learning materials they use.

12. He testified that there was a formal complaint from Head of Department, Civil, where the applicant was working. He then asked the HOD, Madam Sikakane, to invite the applicant to facilitate or coordinate a meeting between the three of them. The response he got was that the applicant did not want to be part of the meeting. He felt they should invite the applicant to the meeting between the three of them to understand the issues within the department which were raised. The applicant reported to Ms Sikakane. It was then necessary to attend the issues.

13. He testified that the issues specified in the complaint were not taking instruction, not invigilating, not adhering to Covid-19 protocols. He testified that in March 2020 the regional office called all Gauteng and Free State colleges for a workshop to all Chief Invigilators and Deputy-Chief Invigilators for the purpose of dealing with the irregularities during examinations. The emphasis was on the people who do not comply with examination instruction or code of conduct administration and management of examination which stipulates that lecturers under section 4 are deemed invigilators. A failure by the applicant to attend the invigilation workshop training was non-compliance or transgression of 2020 document as charge I.

14. He testified that all lecturers were invited to the workshop through internal circular coming from the Campus Manager’s office, it was further emphasized during their staff information session, it was also plucked on the notice boards which were put where staff sign attendance register or time book. Invigilation timetable was shared during the workshop or training session, each lecturer will have the pack which contains examination timetable inside, appointment letter as invigilators and code of conduct for administration of examination, and they sign the acceptance.

15. He testified that in terms of Schedule 8, employees must be disciplined against arbitrary conduct. The employer is entitled to a satisfactory conduct. If there was compliance on the side of the applicant, they should not have been at the ELRC, the relationship was going to be mutual. He did not get such satisfactory conduct. He testified that the expectation is that after workshop, the lecturers that attended should invigilate because the timetable was shared during the workshop.

16. He further testified that on charge II, Mr. Merton, the Deputy-Principal, issued the instruction to all lecturers, senior lecturers and HOD to remind them about the work at hand for invigilation, to avail themselves to work during those exams. Such instruction will be issued via circular and will be plucked on notice boards. He testified that it was not the first time the applicant was invigilating. The duty of a lecturer is to teach, invigilate, mark the scripts and its non- negotiable.

17. He testified that regarding charge III, the meeting took place, and the applicant once again did not comply. If the applicant was in the meeting, the chances are there was attendance register and the minutes will reflect that duties were given to him. It is not possible that some lecturers were not part of the meeting because it was a formal meeting, they have to attend. The impact of not attending a meeting is that the exams will create irregularity, which can lead to student not getting their marks and not proceeding to the next level.

18. He further testified that he was not lying when he said the applicant did not moderate. He testified that in terms of charge IV, the applicant was not complying. By not allowing himself or subjecting himself to screening, the applicant was a huge risk to the campus. The college had to appoint Covid-19 committee, amongst others, but the applicant was not doing that, which is non-compliance. The applicant insisted that learners must come to him, the resolution was that the learners must remain seated.

19. He testified under cross examination that he had no alteria motive against the applicant. He testified that he was not aware that the applicant did not participate in the management of examinations due to detriment occupational hazards because it was not reported. They are required to report any irregularities. Anything that was not reported is hearsay. He testified that the applicant was issued with the appointment letter. He was not asked to produce a letter of appointment at a disciplinary hearing.

THE EVIDENCE OF LINDIWE PATRICIA SIKAKANA: HEAD OF DEPARTMENT: CIVIL ENGINEERING
20. She testified that as the HOD, her duties are to oversee the department, ensure that there are timetables, people go to classes, assessment are done, etc.

21. She testified that the applicant has failed to moderate the scripts that he was supposed to moderate as per allocation. The N1 scripts are marked internally, whilst N2 and N6 are marked externally by DHET. The exams take place internally, N1 scripts, the HOD must come with names as to who must mark the scripts. They notified the markers that the memos were issued out. The marking guidelines must not be done by one person. She called the applicant to do the marking, in response he told her that the college must pay him. Even in the previous trimesters when asking him to mark, he would say the college has promised him some money.

22. She testified that she ended up moderating those scripts. She is not a plumbing expert, she depended only on the memo. Marks were needed to moderate. She further testified that this was dereliction of duty, it was unfair to the lecturers who did their job, and nobody was paid. She testified that the applicant knew very well, she had conversation with him. She did not agree with his reasoning.

23. She testified that the applicant started changing his behavior after charging him. He started doing other things that he did not want to do. She testified that regarding charge V, on 20 August 2020 they had a meeting as the department at the beginning of the term. Mr. Ntonga raised the issue in the meeting that he has been registering N3 alone for several terms already. They opened the discussions and the applicant volunteered that he would do N3 with Mr. Ntonga. On 4 September 2020 she met the applicant at the parking. She started assisting with registration, bearing in mind that there was no senior lecturer who was on comorbidity leave. She did ask where the applicant was, she called him, but he did not answer his phone. She then asked the interns to assist, and other lecturers assisted where there was a problem. She kept on calling him, but there was no answer. The next day she saw him, but he did not assist. He was supposed to come to explain himself, apologize, but he did not do so.

24. She testified that the impact was that she had to stand there for longer, because the interns were not coping. Students were taking advantage of them. The colleagues were looking and next time they would make reference to it. She testified that the conduct was serious, disrespectful and not good. It is not good when you are put in the position of authority and being undermined.

25. He testified under cross examination that the applicant was supposed to carry out the work of registering learners at McCafé. She did remember that one of the arrangements was that during registration there would be security marshalling the students, each student was going through that person. She could not remember if such arrangement was done in case of the applicant. She testified that the applicant never told her that there was no one to manage the queue, he was the only person because if he did, there was going to be alternative arrangements. He was not there. She testified that there is no formal appointment letter given to anyone or the applicant for that matter to moderate. On the issue of moderation, the applicant’s version was that no one would be allowed to do moderation if such lecturer did not attend training and had no identity tag. In reverse of this argument, Ms Sikakana disputed this version stating that a letter of appointment ought to be issued to someone appointed to moderate. The applicant failed to dispute this version. Alternatively, he failed to place his version to Ms Sikakana. Given the above, I find no reason to fault the respondent for finding against the applicant on this allegation. The applicant was indeed in dereliction of his duty.

THE EVIDENCE OF LEOMMA JAPHTA LAKA: HEAD OF DEPARTMENT: MECHANICAL ENGINEERING (CURRENTLY ACTING CAMPUS MANAGER)
26. He testified that he became the Acting Campus Manager in August 2022. His duties include to run the department to do all the activities. Firstly, to develop the timetable, resource the lecturers and administer examinations.

27. He testified that regarding charge I, the decision was taken to rotate people during exams. He removed some of the staff members. The new added colleagues were the applicant, Mr. Mdanisi, Mr. Matoe and so on. He was given the responsibility to do the sitting plan where the students should sit during examination, which indicates the venue and the seat number inside the venue. He did that for a number of days, but he decided not to carry out the duty. He started invigilating again when the charge was brought against him.

28. He testified that there was no permission that the applicant received from him as the Deputy-Chief Invigilator to stop invigilating. This misconduct is serious, it compromises the quality and authenticity of the examination. He testified that he agreed that the applicant was aggrieved, but it is not permission to stop from invigilating. The applicant changed after the allegations were brought against him. He changed voluntarily. He testified that there is a schedule sent to all lecturers. Clause 4. 1 of the exam policy under the subject “APPOINTMENT OF INVIGILATORS” provides: “All lecturers are deemed invigilators and needed to be appointed in writing per examination circle by the Campus Manager of the examination centre to do this task. The original letter of appointment, the identity tag and invigilation guide document must be kept with the invigilator in the exam room during the course of examination. He testified under cross examination that irregularities were one of the concerns raised by the applicant.

THE EVIDENCE OF MATHIBELA JACK TEMA: THE DEPUTY-DIRECTOR: CORPORATE SERVICES BASED AT FLAVIUS MAREKA-FREE STAE
29. He testified that he was appointed by the respondent to preside over the proceedings. He analyzed everything as presented to him. He thought he did everything possible to ensure that nobody was prejudiced. He believed the process was procedurally fair and the final report was on time.

30. He testified that he did not discuss the case with the respondent’s representative. He further testified that Mdanisi was talking about 2017. He testified under cross examination that the application for additional documents was never denied. He testified that when the applicant found him and the respondent sharing the scream during a disciplinary enquiry he was working. It had nothing to do with the case that he was chairing.

THE RESPONDENT’S CLOSING ARGUMENTS
31. Mr. Thokozani Nkambule argued that the applicant’s testimony is that the college has many irregularities, but admitted that he committed the misconduct, however he hopes that it is the start of a good things that other people who are doing wrong will be brought to book. He submitted that Item 3 of the Code of Good Practice indicate that as much as the employees should be protected against arbitrary actions by employers, employers are entitled to performance and good conduct from employees. He submitted that the college did not get good conduct from the applicant. Instead of performing his duties he concentrates on irregularities more than his duties which is wrong because he was employed to perform the duties. He argued that the applicant wanted to correct a wrong with a wrong. He indicated that if the applicant is not respecting his superiors, he is committing a misconduct. He submitted that on a balance of probabilities under the circumstances the dismissal of the applicant should be found procedurally and substantively fair.

THE APPLICANT’s CASE

32. He testified that as the educator, his core-responsibilities were teaching and learning. Teaching and learning entailed assessment he needed to prepare, marking, intensive training more especially on field related knowledge the students need to know based on the course the institution is offering.

33. He testified that in terms of charge II, Mr. Mdanisi and himself went to Mr. Diago, in September 2020 telling him that they might not be invigilating and what they must do. In response, he told them that he would be instituting a team to deal with their case. On 5 December 2020 he arranged a meeting for the first time with forensic investigators. They then met the investigators and gave them all the documents. The investigators told them that they would meet again in January 2021 and some of the people were told that they would meet or report to Patrick.

34. He testified that on 23 March 2021 he received a telephone call from Patrick to tell him that he had jumped the line when he reported the matter to the Department, he would suffer the consequences. In June 2021 he was charged with the allegation of misconduct a year later. They alleged that the issues happened in July-August 2020. He testified that he did not refuse the instruction because no instruction was issued. He testified that the Chief-Invigilator needs to announce the date, the venue and time that there will be invigilation workshop and issue an invitation training to the people invited. He did not receive an invitation, nor was he invited for the training. The appointment was not provided. The first time he got to hear that he refused to take the lawful instruction was during the hearing that took place in June 2021.

35. He testified that during November 2021 he participated in invigilation, but he forced himself to participate because he could not trust the management, but he was still not appointed. He in fact started in August 2021. They deliberately threw him under the bus. He was not the only one who was not invigilating, but he was charged alone. Mr. van Heerden retired on AWL.

36. He testified that clause 4.1.2 of the policy reads as follows: “All lecturers are deemed invigilators. They need to be appointed in writing per examination by the Campus Manager of all centers to undertake the stand. The original appointment letter and identity tag and the invigilation guideline document must be kept with the invigilator in the examination room during the course of examination.” They did not decide that they did not want to be part of the invigilation team, they were taken out in the middle of invigilation. They were taken out in November 2019 exams, August 2020 and he forced himself to invigilate in August 2021.

37. He further testified that clause 4.3 provides: “No invigilators must be allowed to access an examination room without a signed letter of appointment and invigilation guideline document and duly issued identity tag. The training of invigilators must be monitored by the Deputy-Principal Academic and Exam Officer of the College and sample of the training session will be monitored by CDNEA”.

38. He testified that the chairperson deliberately avoided crucial information that was given to him. They requested to supplement their bundle; he denied stating that no party would be allowed to supplement bundles. The initiator also requested to supplement and was denied, but later he allowed the respondent to supplement the bundle. Secondly, he found the chairperson with the initiator looking at the computer having a discussion. The chairperson deliberately ignored Mtanise’s version that he was not invigilating, and he was not charged.

39. He testified that on the allegation of gross dereliction of duty, Mr. Matsila went to training alone and left him behind. He was never appointed to moderate, he was never told, nor informed that he needed to moderate. He was never given training as per the policy.

40. He testified that on charge IV of failure to comply with Covid-19 protocol, he did comply. There was a long que until China City. No one would have gone in if the person had failed in the first screeners.

41. He testified that on 20 August 2020 the College had registrations. He was given the instruction, but he did not comply with it. He did work with Mr. Mphahlele who was registering N3 student’s civil engineering. They held a meeting where they were assured that no venue will do registration without security personnel. He was the only one who was doing registration outside. He did not refuse to do registration but requested to move to the venue with security personnel.

42. He testified under cross examination that Sikakana throw him to the wolves. The instruction given was not reasonable. If the workplace is not safe, it is the responsibility of the employer to ensure that the working conditions are safe for the employees to perform their duties. He testified that the instruction was frivolous and fictious, it was Ms Sikakana’s duty to make sure that the place was reasonable. He took a reasonable precautionary measure by informing his supervisor to move him to a safe place. He testified that there was no one who testified on Circular 1 of July 2020. He agreed that his name appeared on the timetable, but the policy required the invite to be issued. He testified that both the respondent’s witnesses corroborated his version that he was not the only person who was not invigilating. Even Mr. Mdanisi testified that he was not invigilating in July 2020, but he was not charged.

THE EVIDENCE OF MKHACANI MDANISI: THE PL1 LECTURER- BUILDING AND ENGINEERING ELIS PARK CAMPUS CJC

43. He testified that the applicant, Mr. Maaga, Mr. Moyo, and himself were not part of invigilation of July 2020 exams. The reason was that they were given permission by Mr. Kekema, who was the first administration in July 2019, of not participating in invigilation. They were informed of not invigilating exams in about November and December 2019.

44. He testified that for a lecturer to invigilate, the Chief Invigilator must appoint a lecturer in writing. When the agreement is approved, the lecturer will be given dates and venues when and where he or she will be invigilating. A failure to give an appointment letter, might lead any lecturer to go to invigilate anywhere he or she likes, which will be an irregularity. They were not given invigilating letters or were not invited by the Chief Invigilators; hence they did not participate in invigilating.

45. He testified under cross examination that he went back to invigilation because the Chief Invigilator invited him in writing. He testified that the invitation letter does not state reason for invigilation. He testified that he did not receive any report from the investigation.

THE EVIDENCE OF MORUTSE ABEL MPHAHLELE: THE LECTURER OF BUILDING AND CIVIL DEPARTMENT
46. He testified that he does know the applicant, he was his colleague in the Building and Civil department.

47. He testified that the applicant was dismissed for allegation of registration. He was supposed to register N3 students, he registered N6 instead. The applicant was then allocated to register N6 at the beginning of the meeting. Their colleague, Ntonga, who was supposed to register N3 alone, complained stating that he did not want to work alone, but wanted to have partner like him to register when he works with the applicant at N6. They then agreed that Ntonga would work with the applicant.

48. He testified that they could not register at the time because they were waiting for the results from other departments as it was during Covid-19. They got a big venue called McCafé. They agreed that there should be security for them to assist with registering one-by-one.

49. He testified that after the release of the results, Ms Sikakana sent a “WhatsApp” message to remind them to come to collect the package that they use to register the students. He went to Ms Sikakane’s office to collect his N6 papers to register.

50. He further testified that on his way to the venue, he found group of them registering N3. Ntonga was absent on that day.

51. He also testified that as he was registering them, the applicant came to help him. He testified that there was no security and control.

52. He testified under cross examination that on 20 August 2020 he was in the meeting where the applicant volunteered to register N3. He testified that the applicant did not register N3. When it was put to him that Ms Sikakane put the interns to register N3 students because the applicant did not do what he was duty bound to do, he testified that it is not true.

THE APPLICANT’S CLOSING ARGUMENTS
53. The applicant submitted that in terms of charge II, the rule regulating exam invigilation in this instance is exam policy. The policy requires the respondent to appoint the invigilator in writing train and make the record available, which the respondent failed to prove. He argued that the respondent failed to prove that the rule is applied to all without fear and favour. He indicated that the applicant never saw the moderation timetable. He indicated that the marking and moderation policy requires the respondent to invite him for moderation. He argued that the version that he left the campus was incorrect, the instruction to register students without taking reasonable care against the risks associated with Covid-19 was unlawful in terms of Covid-19 and unreasonable. He submitted that the respondent failed to prove its case on a balance of probabilities that the dismissal was fair and there is no reasonable Commissioner that can convict on such charges and evidence. He requests the case of the respondent to be dismissed.

ANALYSIS
54. This matter concerns an alleged unfair dismissal.” The existence of a dismissal is not in dispute. It then follows that the only enquiry is to determine the fairness of the dismissal. Section 192 (2) of the “LRA” place the duty on the respondent to prove the fairness of the dismissal after the existence of a dismissal has been established. The respondent has called four witnesses to support its case and had submitted bundle of documents [hereinafter referred to as bundle R and the applicant called two additional witnesses and submitted bundle of documents [hereinafter referred to as bundle A].

55. In any misconduct case, the first factual enquiry is whether there is a rule. The applicant stated in these proceedings that the first issue in dispute is the existence of the rule. Having regard to the evidence before me, I am of the view that the applicant on his own version had conceded that there is a rule regulating examinations. He was charged with the offence relating to gross insubordination.

56. Schedule 8: Code of Good Practice: Dismissal determines that offences such as gross insubordination, dishonesty theft, willful damage of employer’s property, can warrant dismissal in the first instance. I am therefore of the view that there is no need for the respondent to communicate a rule relating to gross insubordination.

57. Having established the existence of the rule, the next question to determine is the contravention of the rule. It is important to answer this question by considering the sequence of the events which are as follows. In March 2020 both Gauteng and Free State colleges were invited to a meeting where they were going to discuss the challenges concerning examinations. Only Mr. Matsila attended from the respondent’s side. The applicant was supposed to have attended, but he did not. The explanation given by the applicant for his none-attendance was that Mr. Matsila left him behind deliberately. Knowing very well that the applicant did not attend the workshop or meeting, I am of the view that as the representative from Central Johannesburg College, Mr. Matsile ought to have provided the information to the applicant to ensure that he was well equipped to perform his duties.
58. I wish to record in this regard that I am not going to deal with the offences chronologically as they were dealt with in these proceedings but concentrate on the facts, I deem relevant for the purposes of this award.

59. It is common cause that before the start of examinations, all Chief Invigilators, Deputy-Chief Invigilators are required to attend a training or workshop on exams. It is also common cause that generally clause 4.1 of the exam policy deems all the lecturers as invigilators. As the applicant had failed to attend the workshop training that took place in March 2020, such failure will have an impact on the exams, creating irregularities. It is common cause that all participants at the workshop or the people who attended the training ought to receive the particulars such as appointment letter, identity tag and code of conduct administration examination or invigilation guideline document. Also, by attending this workshop or training, lecturer or invigilator has created the impression that he or she will invigilate as the timetable was shared during that particular workshop or training.

60. It is further common cause that the applicant was requested by Ms Sikakana to mark scripts. I agree with Mr. Matsila’s version that lecturer’s core duties include teaching, marking the scripts are non-negotiable. Even the applicant had stated that one of his duties was teaching and learning. Invigilation is part of teaching and learning.

61. I am of the view that the applicant is not a credible and reliable witness. He firstly relied on clause 4.1 of the exam policy which requires for a person to invigilate to be appointed in writing. I then observed the contrary version of the applicant when he stated that effectively from August 2021, he forced himself to invigilate the exams. Given the above, I am of the view that the applicant’s reliance on clause 4.1 falls away since he was able to invigilate exams without the prerequisite namely, appointment letter, identity tag and invigilation guideline document. The issues he raised that he would not access the exam room in absence of the required particulars for invigilator to perform the duty of invigilation falls away. It is worth noting that the applicant did not only invigilate in August 2021, but also during November 2021 exams.

62. The applicant cannot pick and choose when he wanted to invigilate. His argument that the respondent failed to submit the timetable to him or appointment letter that he has been appointed as invigilator falls off. The rules do not apply because one wanted them to be applicable or enforced. If, according to the applicant, appointment letter was the condition for him to invigilate, he should not have forced himself to invigilate without it.

63. Again, I turn to agree with Ms Sikakane’s version that the conduct of the applicant only change after the allegations were proffered against him. I am of the view that on a balance of probabilities the applicant saw the importance and need to invigilate exams in absence of the particulars of invigilation for the exam.

64. On the question of inconsistency, it is not disputed that Mr. Mdanisi was not charged for not refusing to invigilate or mark. Mr. Mdanisi’s version is that he received an appointment letter to allow him to carry out the duty of invigilation. Besides, there is no evidence before me that Mr. Mdanisi was ever requested to invigilate, and he refused. The two cases are different. It is trite law that each case should be decided on its own merit. In addition, there is no evidence before me to suggest that Mr. Mdanisi had ever forced himself to invigilate. Given the above, I am of the view that the argument on inconsistent application of discipline is not relevant in this instance.

65. I wish to record that having agreed with Ms Sikakana’s version that it is serious offence to disrespect and undermine the person in authority. Having regard to the above, I am of the view that the dismissal of the applicant was substantively fair.

66. Turning to the question of procedural fairness, I am of the view that the dismissal of the applicant was procedurally unfair. The applicant alleged that the chairperson of a disciplinary enquiry was bias. He refused to grant supplementary of document but granted the respondent. He found the chairperson sharing the screen of the computer together and shortly the respondent’s application to supplement its documents was granted. A rational person would have foreseen that this conduct would prejudice him and the other party. He should have recused himself in the circumstances.

67. Having regard to the above, I am of the view that the dismissal of the applicant was procedurally unfair.

68. Turning to the remedy, I firstly wish to state the applicant indicated that she is seeking retrospective reinstatement. In terms of section 193 of the “LRA”, I am allowed to order reinstatement or re-employment of the applicants because it is the primary remedy for substantive unfairness, and it achieves the primary objects of the “LRA”. Having reached the conclusion that the dismissal was procedurally unfair, I am of the view that the award of compensation is in the circumstances an appropriate one. I find that four months compensation to be just and equitable and appropriate under the circumstances, calculated as R23 007,62 monthly salary x 4 months =R92 030,48.

69. In the premises I find the following award competent.

AWARD

70. I find that the dismissal of the applicant, Bongani Mthimunye, by the respondent, Department of Higher Education and Training (DHET) / Central Johannesburg College (DHET), was substantively fair and procedurally unfair.

71. As a result of the above, I order the respondent, Department of Higher Education and Training (DHET) / the Central Johannesburg TVET College to pay the applicant, Bongani Mthimunye, an amount of R92 030,48 (ninety-two thousand and thirty Rands forty-eight cents) as compensation.

72. The aforesaid amount is subject to statutory tax deduction and is payable to the applicant by no later than 31 August 2023.



P. Maitsha
ELRC Panelist