ELRC128-22/23GP

Case Number: ELRC128-22/23GP
Commissioner: Leanne Alexander
Date of Award: 24 April 2024

In the ARBITRATION between:
Nawa, HKM
(Applicant)
And
Department of Higher Education & Training (Westcol TVET College)
(First Respondent)

Details of hearing and representation
1. The arbitration took place at the Respondent’s premises at 42 Johnstone Road, Randfontein, over several days as follows: 27 March 2023, 26 April 2023, 29 June 2023, 30 June 2023, 15 January 2024, 16 January 2024, 1 March 2024 & 28 March 2024.
2. Mr Sipho Mphakathi, an Attorney, represented the Applicant. The Applicant, Ms Hilda Nawa, was also present in the proceedings.
3. Mr Nkateko Zitha, represented the Respondent, the Department of Higher Education and Training.
4. The proceedings were conducted in English.
5. The Applicant referred a dismissal dispute in terms of Section 191(5)(a) of the Labour Relations Act, Act 66 of 1995 (“LRA”) on 20 May 2022. The matter was scheduled for conciliation proceedings on 10 June 2022, the matter subsequently remained unresolved and a certificate on non-resolution was issued.

6. The matter, thereafter, was set down for arbitration proceedings on the above said dates.
7. A ruling was issued on 1 March 2023, wherein it indicated the “the granting of legal representation” and an “inspection in loco was granted”.
8. A directive was issued on 15 July 2023.
9. The matter was postponed on the 6 October 2023.
10. In terms of Section 138(7) of the “LRA” “within 14 days of the conclusion of the arbitration proceedings (a) the commissioner must issue an arbitration award with brief reasons”.

11. The matter followed an inquisitorial approach.
12. The hearing was digitally recorded, and manual notes were also taken.
13. I must place on record that both parties agreed to submit their closing arguments in writing by close of business on 9 April 2024. As at the date of this award, only the Respondent issued their closing arguments. The submissions were duly received and considered.

The issue’s to be decided
14. I have to determine whether the Applicant’s dismissal was substantively and procedurally fair. I am to determine the appropriate relief.

The background to the dispute
15. It was common cause that the Applicant was employed as an PL Lecturer since 1 March 2009.
16. The Applicant worked a 5-day week, at an average of 8 hours per day.
17. The Applicant was dismissed on 19 May 2022.
18. The Applicant earned a monthly salary of R25, 905-75.
19. The Applicant worked 5 day per week, at an average of 8 hours per day.
20. The Applicant sought retrospective reinstatement.

21. The substantive issues in dispute were that the Applicant disputed that she was not guilty of the transgressions levelled against her, the rule/standard that was in place, the awareness of the rule/standard, the consistency and the harshness of the sanction levelled against her. The procedure was also in dispute, insofar as the alleged biasness of the Chairperson.
22. The Applicant was charged as follows:
“Gross dishonesty:
It is alleged that on or about 27 November 2020 at or near Western TVET College (Krugersdorp Central Campus), you intentionally misled your supervisor, Mr TP Phala, by sending him a WhatsApp message indicating that you were not fit for work due to medical condition while you were at the airport. Therefore, you were absent from work on 27 to 30 November 2020 without good reason since you were intentionally dishonest towards your supervisor”.
The Applicant pleaded not guilty to the above charge.
The Applicant was found guilty of the above charge.
Since dismissal was not in dispute, the Respondent bore the onus of proving the substantiveness fairness.

Summary of evidence and argument
The testimony led by the witnesses’ is fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.

Respondent’s case
Ms Michelle Fourie
23. The witness testified under oath that she was employed by the Respondent as a Senior Lecturer (Krugersdorp Campus).
24. The essence of the witness testimony inter was that she had been employed since 2006 in her current position, however she has been employed since 2000.
25. She submitted documentary evidence of several “screen shots” of WhatsApp Messenger (“WhatsApp”) where it was submitted that she saw the “photos” on 27 November 2020, on the Applicant’s WhatsApp status and she forwarded them that morning to her senior.
26. She said that she forwarded the photos at 17:38 but it had been posted at 15:40 that afternoon.
Inspection in loco
27. The inspection in loco then unfolded wherein the “pictures” on page 6 & 7 (Respondent’s bundle) were the same time that the witness, Ms Michelle Fourie, forwarded the WhatsApp at 17:38 to her senior, Mr Kgoete.
28. She submitted documentary evidence of the “pictures” where it was submitted that the persons in the photos were the Applicant and Ms Matseleletse.
29. She said that she shared the “pictures” with her senior, Mr Kgoete, as everyone could see that the Applicant was not at work on that day and her status could be seen. The Applicant was not at work, yet she posted such pictures whilst she was seen at the airport.
30. She said that the “pictures” looked like a mockery as the Applicant indicated that “we tired and sick” with several emojis, therefore it had to be reported in order to be investigated.

31. She submitted documentary evidence of the “status” of the pictures where it was submitted “after 4 hours flight/ we tired n sick”, “as we leave this country (feeling sick)” and “emojis (depicting a thermometer in the mouth)”.
32. She said that the Applicant was booked off sick on Friday, 27 November 2020, and Monday, 30 November 2020.
33. She said that the Applicant returned to work on 1 December 2020. The other employee, Ms Matseletsele, was booked off for the same period and also returned to work on 1 December 2020.
34. She submitted documentary evidence of a WhatsApp that she forwarded to Mr Kgoete, informing him that “…did you see the messages on the management group about these 2 ladies not feeling well and didn’t come to work today”.
35. She said that the Applicant misled the Respondent, as during that time they were writing exams, the Applicant had to invigilate, and it had a financial impact on the Respondent.

Under cross-examination (only concessions or significant versions put are recorded)
36. The witness explained that she screen shot the pictures approximately an hour before sending them to Mr Kgoete, she sent them at 17:37 and Mr Kgoete, opened the pictures at 17:38.
37. The witness explained that the Applicant did not invigilate on 27 November 2020, she was scheduled to invigilate on 30 November 2020. However, the schedule could have subsequently been updated.
38. It was put to the witness that the Applicant was not scheduled to invigilate on 30 November 2020.
39. The witness explained and submitted that the schedule could have changed, as it changed regularly.
40. The witness explained that the fact that both employees were together and absent at the same time made her wonder.

41. The witness explained that she sent all of the pictures at 17:38 and she could have taken the screen shots afterwards. She had taken the screenshots from the Applicant.
42. It was put to the witness that the Applicant updated her profile pic at 15:32 and not her WhatsApp status.
43. The witness disputed this statement and submitted that if the status was updated it showed the time when it was updated.
44. The witness explained that she saw both ladies with the same suitcases on campus earlier that week.
45. It was put to the witness that the Applicant would testify that the pictures were not taken on the same day.

46. The witness disputed this statement and submitted that the Applicant must demonstrate the date that they were taken.
47. It was put to the witness that the Applicant was suffering from a contagious infection and Ms Matseletsele, also had similar symptoms.
48. The witness submitted that she could not comment on such.
49. The witness explained that when lecturers indicated “I’m not coming in today”, it meant that they were sick, and her WhatsApp status indicated that “she’s sick”.
50. It was put to the witness that the Applicant was not charged for a fictitious sick note and her medical certificate was accepted as being authentic.

51. The witness conceded to this statement.
52. The witness explained that it would not have been a problem if the Applicant was at the airport at 15:42 on the 27 November 2020, however she submitted a sick note, therefore it would not make sense that she would be at the airport.
53. It was put to the witness that the Applicant will testify that she was not at the airport on 27 November 2020, and no proof supported such.
54. The witness disputed this statement and submitted that they only had the photos.
55. It was put to the witness that the photos on the Applicant’s WhatsApp status were taken some time before.
56. The witness disputed this statement and submitted that it was interesting, because during the first hearing it was submitted that they travelled to Nigeria for a prophet, so it was a possibility.
57. The witness explained that 2 (two) lecturers signed for each other, Ms Wallis and Mrs Fourie, the matter was referred to Human Resources, however she was not aware of the outcome and the 2 (two) employees were still employed by the Respondent.
Re-examination
58. The witness explained that on the “invigilating schedule” on 30 November 2020, she saw the Applicant’s name indicated on the schedule.
59. The witness explained that the Applicant’s medical certificate wherein she was booked off from 27 November 2020 until 30 November 2020, was not signed off by the Campus Manager.

Mr Sydney Kgoete
60. The witness testified under oath that he was a Campus Manager (Krugersdorp).
61. The essence of the witness testimony inter alia was that he knew the Applicant as she was a lecturer at Krugersdorp campus. His roles included amongst others the management of staff, campus management and leave issues.
62. He said that the Applicant was dismissed as she was not at work whilst she displayed pictures on her profile on WhatsApp thereby it misled the Respondent as it was suggested that she was sick. When she returned, she submitted a sick note.
63. He said that the Applicant was booked off sick from 27 November 2020 until 30 November 2020.
64. He said that the Respondent became aware that the Applicant was not going to be at work as she forwarded a WhatsApp to her Supervisor, Mr Phala, and Mr Phala, then forwarded the message on the group.
65. He said that his role in this matter was that the Applicant submitted a leave form after she returned to work. On 27 November 2020, during the afternoon Mrs Fourie, approached him and advised him that something was going on as she saw the pictures on social media, yet the Applicant was on sick leave.

66. He said that from his side it became difficult, as he could not question sick leave, therefore he decided to decline the sick leave application and he forwarded it to the Principal.
67. He submitted documentary evidence of the “sick note” and “sick leave application form”.
68. He submitted documentary evidence of the “photos” where it was submitted that he received the “pictures” from Mrs Fourie, on 27 November 2020. The persons in the pictures were the Applicant and another employee, Ms Matseletsele.
69. He said that he did not sign the leave form, as there was a lot of noise about the pictures and the staff were talking about them. He realized it was sensitive for him to deal with and it made him think otherwise, furthermore he had his doubts.

 Under cross-examination (only concessions or significant versions put are recorded
70. The witness explained that the “pictures” were bought to his attention by Mrs Fourie, on 27 November 2020, in the afternoon at around 16:00 – 17:00, it was a long time ago and he could not vividly recall everything, therefore he could not recall the exact time.
71. It was put to the Applicant that the Applicant will testify that the pictures were uploaded at 17:38.
72. The witness explained that he received the communication, and he could not judge what happened prior to that.
73. The witness then demonstrated on his laptop that the pictures were taken at 15:46 and it did not show when it was forwarded. He no longer had his phone that he was using at that time.
74. The witness explained that Ms Fourie, first explained the situation to him and then forwarded the “pictures” at 17:38.
75. The witness explained that the Applicant did not explain on her WhatsApp why she was not coming in to work on 27 November 2020, however she indicated on her leave application form that she was sick.

76. It was put to the witness that in Applicant’s charge there was no mention why she was not there it only indicated “while at the airport”, however there was no proof that she was at the airport.
77. The witness disputed this statement and submitted that he was informed that afternoon by Ms Fourie, and he received the “pictures” at 17:38.
78. The witness explained that the Applicant sent 2 (two) communications 27 November 2020 and 30 November 2020, that she would not be coming to work.
79. It was put to the witness that the Applicant will testify that her leave form came directly to him and not to Mr Phala.
80. The witness explained and submitted that it could have happened as it was a practice in order to have control and if the Supervisor was not there, the leave applications would come directly to him.

81. The witness explained that the Applicant’s charges were formulated after the leave form had been submitted.
82. The witness explained that he sent the information to his senior after the Applicant’s sick note had been submitted, he could not recall the exact date.
83. It was put to the witness that a person could upload an old picture on their WhatsApp status, therefore it would show that particular date and not show the date when the picture was taken.
84. The witness explained that he was not arguing with him, however on the 27 November 2020, the pictures were displayed, and the Applicant did not report to work, only experts could provide the information that he was referring too.
85. The witness explained that another employee, Ms Gabi, had a case at Carltonville, but he was not aware of the details regarding that particular case.
86. The witness explained that he recalled the case of Ms Wallis and Ms Fourie, and they were given warnings.

Re-examination
87. The witness explained that the Applicant did not provide reason(s) as to why she was not coming to work in her WhatsApp messages.
Mr Thapelo Phala
88. The witness testified under oath that he was a Lecturer.
89. The essence of the witness testimony inter alia was that he knew the Applicant as a Senior Lecturer, the Applicant reported to him from 2017. During 2020, he performed an acting role (Senior Lecturer – Administration) Program Division.
90. He said that he became aware when it was forwarded by the Campus Manager, as he called to enquire if he recognized the WhatsApp message.
91. He said that he forwarded the message to the Senior Manager on the group.
92. He submitted documentary evidence of a WhatsApp message, where it was submitted that it was his screen on his phone and the Applicant sent him a WhatsApp where it was submitted “Good morning Mr Phala, I’m still not in today” that was sent on 30 November 2020, and he responded, “morning and thanks for the heads up”.

93. He said that he received the WhatsApp on 27 November 2020, and another message on 30 November 2020, where the Applicant indicated that she was not coming into work. Furthermore, he was surprised to see messages at the airport whilst the Applicant sent 2 (two) messages that she was not coming to work. He felt that the Applicant was dishonest as she shared photos, yet she was absent from work.
94. He said that the pictures that the Applicant posted gave the impression that she was not coming to work, yet she was at the airport therefore she knew she was somewhere else.
95. He said that the Applicant did not provide him with her medical certificate.
96. He said that the Applicant misled him, as she told him that she was not coming to work without any reason(s) provided to him. Subsequently, the medical certificate was submitted, and he did not obtain the reason(s).

97. He said that the Applicant and her colleague, Ms Matseletsele, were absent on the same day and it was the same colleagues in the photos.
98. He said that the Applicant and Ms Matseletsele, were good friends, like twins, they wore similar clothes, they had lunch together and arrived at work together.
Under cross-examination (only concessions or significant versions put are recorded)
99. The witness explained that if an employee was absent for (1) one day no reason were required, however for 2 (two) or more days they must provide reason(s).
100. The witness explained that he only saw the Applicant’s sick note during the disciplinary hearing.

101. The witness explained that he felt misled by the Applicant after coming across the pictures on 30 November 2020, and after the second WhatsApp was sent.
102. The witness explained that the pictures were forwarded on 27 November 2020.
103. It was put to the witness that the Applicant did not dispute that the pictures were posted on the Applicant’s WhatsApp status, yet it did not mean that the pictures were taken on the same day, as per the example that he demonstrated.
104. The witness conceded to this statement.
105. The witness explained that he did not see her at the airport and was not aware that any other persons had seen the Applicant at the airport.
106. The witness explained that it was strange that the Applicant and her friend, Ms Mateseletsele, sent the WhatsApp message on the same date, and at the same time, it was too much of a coincidence.

107. It was put to the witness that they had potential Covid at the same time.
108. The witness explained that he was not a medical doctor.
109. It was put to the witness that his conclusion was wrong, and the pictures did not provide any evidence, even Ms Fourie, indicated that she was not certain where the pictures had been taken.
110. The witness did not respond to this version.
111. The witness explained that the Applicant’s sick note was not contested, and the pictures were taken by the Applicant on 27 November 2020, and they were forwarded on that day.

Mr Mathibela Jack Tema
112. The witness testified under oath that he was the Chairperson.
113. The essence of the witness testimony inter alia was that he worked for a college in the Free State, and there was a request from the Respondent to chair the matter, which was approved by the Principal, and he also received an appointment.
114. He said that during the disciplinary hearing he went through all of the procedures including representation, recordings, and interpreters. There were no preliminary issues that were raised, the Respondent called 3 (three) witnesses and the Applicant led evidence and was cross-examined and closing arguments were submitted in writing.
115. He said that he applied his mind, and he issued a finding of guilt and then he requested parties to submit aggravating and mitigating factors.
116. He said that he found the Applicant guilty, and he took note of the evidence and there was a lot of co-incidences, both employees worked at the same college, reported to the same Supervisor and were not at work during the same period.
117. He said that the Respondent’s witness, Ms Fourie, saw the Applicant and Ms Matseletsele, carrying bags and that was never challenged.
118. He said that the picture painted by the Applicant was that they were going to Nigeria for prayers, however the passport was never presented to during the disciplinary hearing.

119. He said that there were too many co-incidences both employees reported to Mr Phala on the same day within 2 (two) minutes of each other, both employees were booked off for the same period. No evidence was presented wherein the pictures that were taken were old pictures.
120. He said that he did not doubt that the Applicant was sick or not, however she appeared at the airport while teaching and learning was taking place. The Applicant did not report that she was sick, the sick leave application was completed afterwards.
121. He submitted documentary evidence of the “charge” and submitted that the Applicant pleaded not guilty to the charge, she was not fit for work, but she was fit to travel. The issue was that she provided a sick note, yet she continued life as normal.
122. He said that the Applicant’s offence was gross, as he researched cases in terms of the Public Service a dismissal was warranted. In terms of consistency, nothing was bought to his attention. On a balance of probabilities, he could not find otherwise.
123. He said that the Applicant in her mitigation admitted that she had wronged the Respondent and she wanted to restore trust. He said that based on the issue of trust, no option other than to dismiss her based on the “sanctioning guidelines for the public service”.

 Under cross-examination (only concessions or significant versions put are recorded)
124. The witness explained that he chaired the disciplinary hearing for both employees including the Applicant, they were both cross-examined, the same charges were for both employees, as the Respondent presented a combined case.
125. The witness explained that the version before him was that the WhatsApp message was sent 2 (two) minutes apart.
126. The witness explained that his disciplinary hearing minutes were not typed verbatim.
127. The witness explained that with the evidence before him, it supported the charge, and it was not disputed that the Applicant was at the airport.
128. It was put to the witness that the Applicant was at home when she uploaded the pictures.
129. The witness disputed this statement and submitted that the witnesses supported the charge. The charge was not amended it was left as it was.
130. The witness explained that the Applicant misled Mr Phala, on 27 November 2020, and she was dishonest on the said date.

131. The witness explained that the Applicant was not at work on 27 November 2020, and he cumulatively made a decision with the evidence led that she misled the Respondent.
132. The witness explained that there was no evidence led that the Applicant was at the airport, however there were many co-incidences, the same period they were booked off, the same events occurred, as such he could not ignore that.
133. The witness explained that he could not dictate what the Applicant would have presented, however no proof of travelling documents/passports were shown to him.
134. It was put to the witness that he was biased at the Applicant’s disciplinary hearing
135. The witness disputed this statement and submitted that he was not biased, the onus rested on the Respondent and on a balance of probabilities it shifted towards them.
136. The witness explained that he looked at many factors, if the Respondent placed a version that was not challenged, he considered such.
137. The witness explained that he did not have a mandate, if it was not presented at the Applicant’s disciplinary hearing it was not his fault.
138. The witness explained that it was possible to upload old pictures on a person’s WhatsApp status, however it was not mentioned on that day, and it was not for him to decide. The only evidence before him, was the tampering of the date when the pictures had been taken.

 Point in limine
139. The Applicant’s representative, raised a point in limine regarding the disciplinary hearing records and the request that they ought to be transcribed.
140. The Respondent opposed the application.
141. The parties then agreed to submit their submissions in writing insofar as the point in limine that was raised.
142. Subsequently, the Applicant elected to not to pursue this application and a directive was issued on 15 July 2023.
Under cross-examination (only concessions or significant versions put are recorded)
143. The witness explained that the Applicant misled Mr Phala, not only based on the WhatsApp message, the witnesses’ testimonies, the sick note/application that was submitted and it was the same sick leave dates as her colleague.
144. It was put to the witness that during the disciplinary hearing, the sick notes that were submitted were never in dispute.
145. The witness conceded to this statement and submitted that there was no question about the authenticity of the Applicant’s sick notes.
146. The witness explained that he relied on evidence in terms of the pictures that were presented to him and the sick note for that day.

147. The witness explained that it was possible to upload old pictures on a WhatsApp status, however he relied on the testimony of the witnesses and no inspection in loco was conducted at the airport. His decision was based on a lot of other issues for example both employees were sick at the same time and the sick notes were provided for the same period.
148. It was put to the witness that the pictures were taken in October 2020, and the bags were bought to campus during November 2020, therefore it did not provide any proof that the Applicant had taken a trip, and it was not captured in the minutes.
149. The witness disputed this statement and submitted that during the disciplinary hearing that was not challenged, and the document was a report not the minutes of what had transpired. Furthermore, he analyzed the information and made a determination.
150. It was put to the witness that as a seasoned chairperson, after the Applicant had not changed her plea, yet she indicated that was she “sorry”. A chairperson would not impute that would be an admission of guilt.
151. The witness disputed this statement and submitted that was his opinion, and he chaired the disciplinary. He as the Applicant’s representative did not chair the hearing.

152. It was put to the witness that him weighing up the versions was incorrectly applied, and he put weight on secondary evidence, and he admitted evidence without motivating it, therefore his findings were wrong and misplaced.
153. The witness disputed this statement.
154. It was put to the witness that for the representative to demonstrate the passport, it was done in order to clear the confusion. It was common cause that a 4 (four) hour flight was out of the country and the passport was proof that they never travelled, and he selectively chose evidence in favour of the Respondent.
155. The witness disputed this statement and submitted that there was an inference that the Applicant travelled to Nigeria for prayers, however he was never taken to the Applicant’s passport and the Applicant did not testify regarding her passport. He considered both versions.

Applicant’s case
Ms Hilda Nawa
156. The Applicant testified under oath that she was employed as a PL1 Lecturer.
157. The essence of the Applicant’s testimony inter alia was that she was employed since March 2009, with over 12/13 years of experience and had a clean disciplinary record.
158. She said that she was at work on 26 November 2020. Her colleague, Ms Matseletsela, and herself were good friends and she was her mentor during 2015.
159. She said that they were very close, they ate lunch together, worked in the same department, taught the same students, had free periods together, hiked together during the weekends, went to gym together and went on weekends away.
160. She submitted documentary evidence of a WhatsApp message which she had sent before 08:00 on 27 November 2020, where it was submitted “Good morning Mr Phala, I’m not in today. Nawa HKM”.

161. She said she never indicated in her WhatsApp message that she was not fit for work due to a medical condition.
162. She said that she was not at the airport when the message was sent, she was at home, she went to the doctor as per her medical certificate and she could not be at the same place at the same time.
163. She submitted documentary evidence of a “medical certificate” where it was submitted that she was booked off from 27 November 2020 until 30 November 2020, and would resume duties on 1 December 2020. She completed the “leave application form” on 1 December 2020.
164. She said that the charge was incorrect as she never mentioned her medical condition when she sent the WhatsApp.
165. She said that she submitted her leave form to Mr Kgoete. Furthermore, the Respondent had not disputed her medical certificate.
166. She said that in Mr Phala’s testimony he indicated that he “was confused” after seeing the pictures.
167. She said that she uploaded the pictures on page 3, 5, 6, 7, 8 & 9 (bundle R) at 17:38 and her colleague, Ms Maseletsele, uploaded them after 21:00.
168. She said that she was not at the airport on 27 November 2020, she went to the doctor at 09:00 and then went back home. She bathed at around 09:00 – 10:00 then went to the doctor.
169. She said that the pictures that she had uploaded were taken during October 2020, and when they were uploaded it was not during working time.
170. She said that she was not scheduled to invigilate on 27 November 2020.

171. She said that the campus employees could not have spoken about the pictures as they were only uploaded once everyone had left the campus, therefore it did not make any sense.
172. She said that the saved numbers on her phone, were those persons who could see her status and she saved management numbers on her phone.
173. She said that the reason why Ms Fourie, had seen her with bags on campus on the Monday at approximately 11:00 – 12:00 as they returned from a trip, and they arranged a driver to bring the bags at 11:00 as they had to attend a morning briefing.
174. She said that the chairperson had not captured everything that she had said in his report.
175. She said that the period from 27 November 2020 until 30 November 2020, she thought that Ms Matseletsele, was at home, as she was not with her.
176. She said that during the disciplinary hearing the Respondent only relied on the old pictures, no CCTV footage was submitted, and she submitted her passport as proof she that never left the country.

177. She said that there was a similar case wherein 2 (two) ladies signed for each other Ms Wallace and Ms Fourie, and they received a final written warning. Furthermore, another employee, stole from Carletonville campus she was suspended and then placed at Krugersdorp campus.
178. She said that she had not admitted to the alleged misconduct, and she was not told that she could not post pictures after working hours.
Under cross-examination (only concessions or significant versions put are recorded
179. The Applicant explained that she was aware there was a rule in terms of dishonesty, and it was reasonable for the Respondent to have such a rule.
180. The Applicant explained that in terms of consistency the Respondent did not address concerns when the Respondent addressed employees “not to sleep with students”.
181. It was put to the Applicant that this version was never tested.
182. The Applicant explained that she wanted to demonstrate that the Respondent was inconsistent.
183. It was put to the Applicant that she communicated on the morning of 27 November 2020, that she not available and on 23 November 2020, Mr Fourie, saw her with the bags, and then pictures were seen which looked like they were taken at an airport. The charges were provided after the sick leave form had been submitted.

184. The Applicant conceded to this statement.
185. The Applicant explained that when she sent a WhatsApp to Mr Phala, she had symptoms but had to go to the doctor to confirm.
186. It was put to the Applicant that she misled Mr Phala, as she did not say that she was feeling unwell, she did not say anything in her message.
187. The Applicant disputed this statement and submitted that Mr Phala, had not enquired with her.
188. It was put to the Applicant that the Respondent believed that she misled Mr Phala, as she knew the reason that she was unwell.
189. The Applicant conceded to this statement and submitted that she was aware.
190. It was put to the Applicant that when the Respondent addressed the charges levelled against her, the Respondent knew the reason(s).

191. The Applicant disputed this statement and submitted that the Respondent should have seen her doctor or obtained CCTV footage.
192. The Applicant explained that she only informed her representative that she was guilty for posting the pictures.
193. It was put to the Applicant that she was not found guilty for posting the pictures.
194. The Applicant disputed this statement.
195. The Applicant explained that she had only apologized for posting the pictures, and the Respondent owned her time after work and that was the reason why she apologized. Furthermore, she never wrote the statement in mitigation.

Re-examination
196. During re-examination, the Applicant explained that she was not expected to disclose her illness to Mr Phala, and no policy indicated that she ought do so.
197. During re-examination, the Applicant explained that she had no intention to mislead Mr Phala, as when an employee was absent, they always announced it in that manner.
198. During re-examination, the Applicant explained that she did not admit to any guilt she only indicated that she was sorry for posting the pictures.
199. During re-examination, the Applicant explained that Ms Wallace and Ms Fourie, were not subjected to the same process and stress that she had been subjected to.
200. During re-examination, the Applicant explained that the Respondent was lenient towards the employee who had stolen, when in fact she ought to have been jailed.

Ms Tankiso Matseletsele
201. The witness testified under oath that she was employed as a PL1 Lecturer.
202. The essence of the witness testimony inter alia was that she knew the Applicant as a colleague and friend. They were close friends they would gym, eat and do anything together.
203. She said that she was dismissed on 21 October 2021, as it was alleged that she was seen at the airport with the Applicant on 27 November 2020.
204. She submitted documentary evidence of a WhatsApp, where it was submitted that she sent a message at around 06:45 on 27 November 2020, that “I’m not coming into work, I’m unwell”.
205. She submitted documentary evidence of “pictures” where it was submitted that she posted page 6 & 7 (bundle R) pictures on 27 November 2020, whilst she was at home at 21:00.
206. She said that she did not have the pictures on her phone and had requested them from the Applicant as she had seen her WhatsApp status.
207. She said that on 27 November 2020, she was at home, and she was not at the airport. She had indicated “tired In sick” on her WhatsApp status as it was playful.
208. She said that the pictures were taken in October 2020. The Respondent did not have a policy wherein you could not post any pictures, she only posted in a playful manner.
209. She said that she consulted with her doctor on 26 November 2020, she went to the doctor at 16:00 and she was booked off from 27 November 2020 until 30 November 2020.
210. She said that she was only aware at 13:00 on 27 November 2020, that the Applicant was not at work on that day as she dozed off due to her medication. She requested the pictures from the Applicant on 27 November 2020, at 19:00 when she had seen them on her WhatsApp status.

211. She said that she only saw the Applicant when she returned to work. She completed her leave from on her return and it was approved.
212. She said that during her disciplinary hearing she was a witness for the Applicant, but she did not recall the evidence that she had presented.
213. She said that Ms Mesou, was found in possession of goods and after a disciplinary hearing she was moved to another campus. In another case with Ms Fourie and Ms Wallace, they signed for each other, and she could not recall if they were subjected to a disciplinary hearing, however they were not dismissed.
214. She submitted documentary evidence of her “mitigating factors” where she said that her representative, Mr Hlangwani, had submitted them on her behalf, she only apologized for posting the pictures.
215. She said that she posted the pictures at 21:00, and it was not true that the campus was talking about the pictures as they were posted after working hours.
216. She said that she was seen carrying bags on campus during the week of 27 November 2020, as they used the bags for a Durban getaway. It looked unprofessional to take the bags to the morning briefing, so the driver bought them during lunch time.
217. She said that although she was sick at the same time as the Applicant it was not planned, she consulted with her doctor on 26 November 2020, and she was booked off.
218. She said that she used another doctor and not the same doctor that the Applicant had used, and she had not informed the Applicant that she was sick on 26 November 2020.
219. She said that she did not plan to be sick at the same time as the Applicant and she did not travel on that particular day.
Under cross-examination (only concessions or significant versions put are recorded)
220. It was put to the witness that her actions were planned. She planned to consult, and she was booked off from work.

221. The witness disputed this statement and submitted that she decided to consult.
222. It was put to the witness that she had no evidence to prove that she had uploaded the pictures at 21:00.
223. The witness explained that it happened a long time ago and she was using a different phone.
224. It was put to the witness that the Respondent had not approved the Applicant’s leave as they felt misled.
225. The witness explained that she could not comment about this statement.
226. It was put to the witness that Ms Meseou, was subjected to a disciplinary hearing and was subsequently punished.
227. The witness explained that she was not aware of that.
228. The witness explained that she explained to the Chairperson that she apologized for posting the pictures, however she could not recall if the Applicant had apologized for posting the pictures.
229. The witness explained that the Chairperson had not indicated everything that had transpired in his report.
230. The witness explained that there was nothing wrong with being booked off for the same period, she saw the pictures from the Applicant on 27 November 2020, and then posted them on the same day.

231. The witness explained that the Chairperson omitted evidence from the Respondent’s side, where they did not believe their own evidence, especially with regards to Mr Phala’s evidence.
232. It was put to the witness that the failure of the Chairperson to put in all of the evidence did not make the Chairperson biased.
233. The witness disputed this statement and submitted that she was not an expert.
234. It was put to the witness that she could not say with certainty that the Applicant did not mislead the Respondent, as she was not party to it and she only spoke to the Applicant at 13:00, as indicated in her evidence in chief.
235. The witness disputed this statement and submitted that her message did not indicate the time, and she could only testify as per her message.
Re-examination
236. The witness explained that she could not say whether or not the Applicant’s leave was approved, as it was not a completed document.
237. The witness explained that the WhatsApp message was not sent at the same time.
238. The witness explained that she never met the Applicant on 27 November 2020, and she was not aware that she was ill.
239. The witness explained that she was not at the airport on 27 November 2020, as she was unwell.
240. The witness explained that she posted on her WhatsApp status that “she was feeling sick” and she did not think that anyone would have gotten confused.

241. The witness explained that she did not leave the country on 27 November 2020, and she shared her passport during her disciplinary hearing.
242. The witness explained that there was no proof that she left the country and furthermore no proof was submitted that she was at the airport on that day.
243. The witness explained that she could not say whether or not the Applicant was at the airport on 27 November 2020, furthermore she was not at the airport on that day.
244. The witness explained that she did not admit to the charges levelled against her.
245. The witness explained that she had not chosen to report to the same line manager as the Applicant, and it was a co-incidence that they worked at the same institution.
246. The witness explained that it was not suspicious that the Applicant and herself were both booked off for 2 (two) days.
Mr Hasani Julius Hlungwani
247. The witness testified under oath that he was employed as a Lecturer and was a Union representative for the South African Democratic Teachers Union (“SADTU”).
248. The essence of the witness testimony inter alia was that he was a Lecturer since 2007. Furthermore, he represented the Applicant at her disciplinary hearing as a Shop Steward and had performed the function for approximately 1 (one) year.
249. He said that many things on behalf of the Respondent were not presented, and the Chairpersons findings were unfair. The Chairperson argued on behalf of the Respondent.
250. He said that the Chairperson captured more of the Respondent’s version.
251. He said that the Chairperson concocted evidence on page 31 (paragraph 19 – bundle R) and the message on 27 November 2020, was not presented.

252. He said that both of the employees were sick in advance, and this was not presented at the disciplinary hearing.
253. He said that there was no direct evidence linking the Applicant that she was at the airport on 27 November 2020, the Respondent only presented pictures and the witnesses believed it to be so, there was nothing to support it.
254. He said that the Applicant’s sick note was never contested, and it was never addressed in the report.
255. He said that no person testified that the Applicant’s illness prevented her from going to the airport and he also questioned the charge that a sick person could be at the airport for consultation. If a person went to Nigeria for prayers, you would go via the airport.
256. He said that he was not saying that the Applicant travelled to Nigeria for prayers, however a person could still go to the airport.
257. He said that no person doubted the validity of the medical certificates, however in paragraph 85 (page 39 – bundle R) the Chairperson was doubting whether or not the Applicant’s sick note was genuine.
258. He said that the Chairperson was unfair in writing a report that was wrong.
259. He said that Mr Kgoete, testified that everyone was talking about the pictures on campus on 27 November 2020, yet pictures were only circulated at 17:38, meaning that the pictures were taken earlier, or on the previous day. The evidence was not supported by what they were saying.
260. He said that the Respondent failed to prove their case on a balance of probabilities.
261. He said that the Respondent failed to prove that the Applicant had sent the message from the airport.

262. He said that the Chairperson drew his own conclusions as to which employee had reported sick first.
263. He said that there was no evident that was led that the Applicant’s conduct was “planned, calculated, intentional and deliberate”.
264. He said that in his “mitigating factors” he indicated that the Applicant “wronged the employer” and only mentioned that as an apology for the postings and it was not an apology for the charge levelled against the Applicant.
265. He said that the posting of the pictures confused the Respondent as they produced their passports, they did not leave the country and social media portrayed something that was not there.
Under cross-examination (only concessions or significant versions put are recorded)
266. The witness explained that the Chairperson was unfair as he expected him to probe regarding the airport allegations and he omitted the evidence of the medical certificate. Therefore, the Chairperson was unfair.
267. It was put to the witness that the Chairperson did not speak about the medical certificate.
268. The witness disputed this statement and submitted that the Respondent’s version was induced and his version regarding the medical certificate was not included.
269. It was put to the witness that he understood the charge according to his own understanding.
270. The witness conceded to this statement.

271. The witness explained that the challenge with the Chairperson’s report was that the Applicant did not report that she was sick, in addition to the way in which Mr Kgoete’s evidence was captured, therefore the version was not true.
272. It was put to the witness that the Chairperson captured in his report that he had not “doubted the sick notes”.
273. The witness conceded to this statement and submitted that this should have closed the case, as the Applicant had a medical certificate.
274. The witness explained that he consulted with the Applicant and her colleague before submitting the mitigating factors. They were sorry about going to the doctor, the action of reporting to the same senior, the action of posting at home and communicating. Therefore, they were sorry for posting.
275. The witness explained that the Applicant was found guilty for posting the pictures.
276. The witness explained that the Applicant was found guilty as per the charge according to his understanding. He was not experienced at that time, and he should not have apologized for posting the pictures, as it was interpreted differently.
277. The witness explained that he acknowledged the Chairperson’s “findings” in terms of the postings.
278. It was put to the witness that he wrote the mitigation admitting to the allegation and thus he understood the allegation. That was the reason he did not indicate that they “apologized for posting”.
279. The witness disputed this statement and submitted that the Chairperson found his findings out of incorrect information, and he was referring to “posting”.
280. It was put to the witness that he was an unreliable witness, and he was not trustworthy, what he submitted therefore he misled the Chairperson.

281. The witness disputed this statement and submitted that the Respondent’s witnesses were unreliable, and he was not inconsistent.
Re-examination
282. During re-examination, the witness explained that when the charge sheet was drafted the Respondent already had the sick note.
283. During re-examination, the witness explained that there was no evidence led that the Applicant was at the airport.
284. During re-examination, the witness explained that he was not experienced when he submitted the mitigating factors as he had not attended a course in that regard.
285. During re-examination, the witness explained that the Applicant only wronged the employer for posting the pictures and his intention was not to mislead the Commissioner.

Analysis of evidence and argument
286. In section 185 of the Act, every employee has the right not to be unfairly dismissed. Since dismissal was not in dispute, the onus shifted to the Respondent to prove that it was fair.
287. In the case of Fidelity Cash Management Services v CCMA and others (DA10/05) [2007] ZALAC 12; [2008] 3 BLLR 197 (LAC); 29 ILJ 964 (LAC) the Court held that “fairness is determined mostly on the basis of the reason for the dismissal which the Employer had given at the time of the dismissal”.
288. I must furthermore indicate that I am bound to deal with the reason(s) for the Applicant’s dismissal at the time of her dismissal.
289. Much evidence was led in terms of the wording/context of the charge levelled against the Applicant.
290. In the case of Cape Gate (Pty) Ltd v Mokgara and Others (JA 11/21) [2022] ZALAC 92; (2022) 43 ILJ 1277 (LAC); [2022] 8 BLLR 683 (LAC) (handed down on 22 April 2022) the Court held that “it is accepted that the charges were not elegantly drawn. It must be borne in mind that Cape Gate is not a Court of law. A disciplinary tribunal is not a Court of law, and the drawing of charges needs not form a model of criminal charges. It is sufficient if the Employee is informed of the allegations against him to prepare for the hearing”.
291. In a similar but different context, in the case of Young Ming Shan CC v Chagan NO and Others 2015 (3) SA 227 (GJ) at paragraphs 44-45 the Court held that “…there are no stringent rules relating to the crafting of the charges and leading of evidence”.

292. In line with the above-mentioned authorities, it is clear that the charges need to be “elegantly drawn” and there are “no stringent rules relating to the crafting of the charges”.
293. At the time of this award, only the Respondent submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered the arguments, principles of law, Codes of Good Practice together with the other evidence, oral and documentary, presented by the parties during the arbitration, as reflected in the record of the hearing.
294. The Applicant claimed that her dismissal was substantively unfair, and she never transgressed as per the charge(s) levelled against her. She was disputing whether or not there was a rule in place, the awareness thereof, the consistency and the harshness thereof. The procedural aspect that was in dispute was the alleged biased Chairperson.
295. The following facts were common cause:
 The Applicant informed the Respondent, Mr Phala, on 27 November 2020, at 07:38 the following: “Good morning Mr Phala, I’m not in today”.
 The Applicant uploaded pictures on her WhatsApp status on 27 November 2020.
 The Applicant submitted a medical certificate for the period from 27 November 2020 until 30 November 2020.
 The Applicant’s colleague, Ms Matseletsele, was also booked off from 27 November 2020 until 30 November 2020 (she consulted her doctor on 26 November 2020).
The Applicant’s colleague, Ms Matseletsele, was also dismissed for the same offence.
The Applicant and her colleague, Ms Matseletsele, were good friends.
The persons as seen in the pictures that were uploaded were that of the Applicant and her colleague, Ms Matseletsele.
296. The Applicant unequivocally denied the charges levelled against her.
297. With the evidence before me, the Respondent’s witness, Ms Michelle Fourie, submitted in her evidence in chief that she “saw the “photos” on 27 November 2020, on the Applicant’s WhatsApp status and she forwarded them that morning to her senior”. This was corroborated by the Respondent’s other witness Mr Thapelo Phala and Mr Sydney Kgoete.

298. With the evidence before me the Respondent’s witness, Ms Michelle Fourie, submitted in her evidence in chief that she saw the Applicant with suitcases on campus during the week of the alleged offence. The Applicant did not dispute this version, although her version was that the bags were from another trip that she had taken.
299. The Applicant disputed that that there was no rule/standard in place and that she was unaware of the rule/standard.
300. The Applicant conceded during cross-examination that “she was aware there was a rule in terms of dishonesty, and it was reasonable for the Respondent to have such a rule”.
301. The Respondent’s witnesses, Ms Michelle Fourie, Mr Thapelo Phala and Mr Sydney Kgoete, were found to be credible and reliable witnesses.
302. In the case of Stellenbosch Farmers’ Winery Group Limited and Another v Martell Et Cie and Others 2003 (1) SA 11 (SCA) at page 13 paragraph 5, the Court held that the test is formulated as one in which “The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the dispute issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects on his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.”

303. In the case of Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC) it was stated that “the credibility of the witnesses and the probability and improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version”.

304. In the case of Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (LC), the Court held that “the commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on this basis” and that “the arbitrator failed to have any regard to the credibility and reliability of any of the witnesses, nor did he have regard to the inherent probabilities of the competing versions before him. That failure, and the fact that the award clearly may have been different had the commissioner properly acquitted himself, renders the award reviewable on account of a gross irregularity committed by the commissioner in the conduct of the arbitration proceedings”.

305. Whilst the Applicant unequivocally denied the charge levelled against her, her version was corroborated by her colleague/friend, Ms Matseletsele. In line with the above-mentioned authorities, very little weight can be drawn to her evidence as it would be inevitable due to her friendship with the Applicant that her testimony/evidence would contain an element of bias.

306. Furthermore, the Applicant and her witness Ms Matseletsele, were found to be unreliable witnesses and at time appeared to be evasive.

307. With the evidence before me it is vitally important to consider the circumstances with regards to the events (WhatsApp picture uploads) that unfolded on 27 November 2020.

308. With the evidence before me, the Applicant indicated on her uploaded pictures “ready to leave the country (not feeling well)”, “after 4 hours flight (we tired n sick)”, “as we leave this country feeling sick” also included were several emojis which depicted an illness (thermometer and wearing a mask). Therefore, with the added written descriptions on the uploaded pictures an inference can be drawn that such a description was uploaded in order to justify the Applicant’s “sick leave”, in the event that she would be questioned regarding her whereabouts.
In terms of consistency:

309. The Applicant’s contention was that the Respondent was inconsistent in the application of its rule.

310. I felt it prudent, for the sake of this award to furthermore define the ‘parity principle’ as cited by Professor Grogan:
“The parity principle should be applied with caution. It may well be that employees who thoroughly deserved to be dismissed profit from the fact that other employees happened not to have been dismissed for a similar offence in the past or because another employee involved in the same misconduct was not dismissed through some oversight by a disciplinary officer, or because different disciplinary officers had different views on the appropriate penalty”.

311. In the case of Edcon Limited v Cantamessa and Others (2020) 41 ILJ 195 (LC); [2020] 2 BLLR 186 (LC) (handed down on 11 October 2019) the Court held that “applicability of the parity principle is not to the exclusion of prevailing different circumstances of the offending Employees. It was found that the Employer had the right to discipline, and that the dismissal was fair”.

312. In the case of Assamang (Pty) Ltd t/a Khumani Mine v CCMA and others (JR 2416/15) [2018] ZALCJHB 193 the Court held that “indeed, in accordance with the parity principle, the element of consistency on the part of the employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal. However, as I say, it is only a factor to take into account in that process. It is by no means a decisive of the outcome on the determination of the reasonableness and fairness of the decision to dismiss…”.

313. In the case of Southern Sun Hotels Interests (Pty) Ltd v CCMA and others [2009] 11 BLLR 1128 (LC) the Court held that “similarity of circumstance is the inevitably most controversial component of this test. An inconsistency challenge will fail where the Respondent is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material facts”.

314. In line with the above-mentioned authorities, the core of the parity principle is that discipline must not be arbitrary and unfair. The Applicant submitted that other employees were treated differently in that Ms Wallace and Ms Fourie, signed for each other and received a warning. Another employee allegedly stole but was moved to another campus. The Respondent’s contention was that discipline was applied consistently.

315. In line with the above-mentioned authorities no documentary evidence was provided from either party wherein discipline was applied inconsistently, and in the circumstances the alleged examples provided the offences were not the same/similar in nature. The circumstances and merits of each case must be considered. Furthermore, it was not disputed that the Applicant’s colleague, Ms Matseletsele, was also dismissed for the same offence.

316. When dealing with the harshness of the sanction, with reference to the Code of Good Practice: Dismissal Item 3 clause 4 provides that “dismissal would be appropriate where the misconduct was serious”.

317. Considering the factors holistically and bearing in mind the duty that I have as a Commissioner I am mindful of the fact as stated in Sidumo, the “Applicant’s defense should not be the only consideration when determining the question of the appropriate sanction”.

318. In a recent case of Western Cape Education Department v Baatjies and others (CA9/202) [2022] ZALAC 89; [2022] 6 BLLR 537 (LAC); (2022) 43 ILJ 1353 (LAC) handed down on 12 January 2022 the Court held that “the cardinal issue here, is whether the misconduct is serious enough to warrant dismissal as an appropriate sanction.”

319. In these circumstances, the Respondent led evidence in terms of the Applicant’s misconduct and in line with their policy and procedures, dismissal was the appropriate sanction. Furthermore, they indicated the importance of the trust relationship. The Applicant’s contention was that the sanction was too harsh, she had a clean disciplinary record and had a number of years of service.

320. In these circumstances, considering the factors holistically dismissal was the appropriate sanction.

321. In terms of procedural fairness, the Applicant’s contention was that the Chairperson was biased.

322. In the case of Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (JR 782/05) [2006] ZALC 44L (2006) 27 ILJ 1644 (LC) the Court held that “the Employer was merely required to conduct an investigation, give the Employee or his representative an opportunity to respond to the allegations after a reasonable period and thereafter to take a decision and give the Employee notice thereof”.

323. Much evidence was led that the Chairperson, Mr Mathibela Jack Tema, was allegedly “biased”. The witness, Mr Mathibela Jack Tema, was found to be a credible and reliable witness.

324. The witness, Mr Mathibela Jack Tema, submitted in his evidence in chief that “his report was a summary and not verbatim”.

325. The witness, Mr Mathibela Jack Tema, evidence was found to be persuasive and consistent, and I am therefore persuaded that there were no procedural defects.
326. I therefore find on a balance of probabilities that procedural compliance was adhered to.
327. In the case of Cecil Nurse (Pty) Ltd v Busakwe NO and Others (PR174/2013) [2015] ZALCPE 28 (handed down on 29 April 2015) the Court held that “when assessing the conduct of an Employee that is of a dishonest nature, the long established rule applied in the Labour and Labour Appeal Court, i.e. that the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, such as long service and a clean record, the sanction of dismissal in cases of dishonesty, must prevail”. [Par 10]

328. In the case of Autozone v Dispute Resolution Centre of Motor Industry and Others (JA 52/2015) [2019] ZALAC 46; [2019] 6 BLLR 551 (LAC); (2019) 40 ILJ 1501 (LAC) (handed down on 13 February 2019) the Court held that “dishonest conduct, deceitfully and consciously engaged in against the interests of the Employer, inevitably poses an operational difficulty. The Employer thereafter will be hard pressed to place trust in such an Employee…”.

329. In the case of Woolworths (Pty) Ltd v CCMA & Others (PA12/2020) [2021] ZALAC 49 (10 December 2021) the Court held that the “Applicant acted dishonestly in absenting himself from work on the basis that he was too ill to perform his duties but then travelled for at least an hour to support his local rugby team, knowing full well that he would be paid for the day”. Furthermore, “the lenient approach to dishonesty cannot be countenanced…it was the dishonest conduct that negatively damaged the trust relationship. It was manifestly justifiable for the company to adopt the approach that the employee was required to act with integrity and abide by the company’s policies, procedures, and codes".

330. In the case of South African Revenue Services (SARS) v CCMA & Others (JR2243/21) [2023] ZALCJHB 222 (21 July 2023) (LAC) the Court held that “employee’s behavior was dishonest because he lied about being sick, which he knew would allow him to be paid for the day, although he had not worked. The dismissal was appropriate. The trust relationship was damaged because the employee was unreliable and dishonest”. Furthermore, “that the probabilities were overwhelming that he was not sick. If he was able to clap his hands and sing, it must follow that he would be able to perform his contractual duties. His first reaction when confronted was not one of an honest employee…and his attempts to further explain himself feeble”.

331. The Applicant failed to provide any evidence on the contrary that she was not at the airport on 27 November 2020. The Applicant failed to provide passports or provide proof when the pictures had allegedly been taken during October 2020. Furthermore, the Applicant failed to call her medical doctor to testify at the proceedings.

332. With the evidence before me, although the Respondent’s version was not direct evidence, it is my finding that the Applicant’s reasoning was not persuasive and the Applicant’s emoji’s depicting “sickness” corroborated with the Applicant’s sick note.

333. Furthermore, the Applicant’s version must be rejected as it was too convenient for her to submit that the same pictures that she uploaded on her WhatsApp status were allegedly taken during October 2020. The identical photos were then uploaded during the Applicant’s alleged sick leave period. It was rather peculiar to note, that the same photos that were allegedly taken during October 2020, also had the Applicant’s colleague, Ms Matseletsele, depicted in the photos, who was conveniently also booked off sick for the same period. The conveniences and coincidences are simply too great.

334. With the evidence before me, on a balance of probabilities, a reasonable inference can be drawn that the Applicant misled the Respondent and acted dishonestly on 27 November 2020. If the Applicant was well enough to travel, she was well enough to render service. In weighing up the versions, I am therefore inclined to accept the Respondent’s version that the Applicant was at the airport on 27 November 2020. The Applicant could not resist the temptation to upload the pictures on her WhatsApp status.

335. Considering the factors holistically, whilst the Applicant did not have clean hands in the matter, and in line with the above-mentioned authorities, I find that the Applicant’s dismissal was fair.

336. It is a common law principle that an employee is obliged to act honestly, to act in good faith and to further the Respondent’s best interests. In these circumstances, the Applicant failed to act honestly. Honesty is at the very heart of the employment relationship.
337. I accordingly make the following Award:

Award

338. The Applicant’s dismissal was substantively and procedurally fair.
339. The matter is dismissed.

Thus, signed and dated on the 24 April 2024.


Leanne Alexander
ELRC Panelist