01 September 2025 -ELRC579-24/25KZN

IN THE ELRC ARBITRATION
BETWEEN:

NEHAWU obo Mthimkhulu P “the Applicant”
And
THE ETHEKWINI TVET COLLEGE “the Respondent”

ARBITRATION AWARD

Case Number: ELRC579-24/25KZN

Date of arbitration: 19 February 2025, 17 April 2025, 24 June 2025, 25 June 2025, 24 July 2025 & 05 August 2025

Date of award: 26 August 2025

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

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearings were held face to face on the dates reflected on the cover page of this award until finalization on 05 August 2025.
The arbitration hearing was held initially at the Cato Manor Campus on 19 February 2025 and thereafter at the Asherville Campus of the Ethekwini TVET College at number 262 D’antree Street, Asherville, Durban from 17 April 2025 until finalization on 05 August 2025.
The Applicant, Mr. Phelelani Mthimkhulu was present and represented by Mr. Thembelani Madwe, an official of the National Education Health and Allied Workers Union. The Respondent, Ethekwini TVET College was represented by Mr. Bheki Hlela, an attorney from Hlela Attorneys. Ms. Nompilo Kweyama, the Respondent’s Labour Relations Practitioner was also present.
The proceedings were digitally recorded.
The services of an interpreter were not requested. Thus, the hearing was conducted in English.

ISSUE TO BE DECIDED

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

BACKGROUND

The Applicant was employed by the Respondent on a permanent basis on 02 February 2015 as a Post Level 1 Lecturer for technical subjects at the Springfield Campus. After around 27 August 2020, the Applicant was invited to apply for a Campus Manager position with the Respondent which he did. Prior to applying, the Applicant had updated his CV.
The Applicant’s updated CV indicated that he had been promoted to an HOD post at Chesterville Secondary School from 2010 to 2015. Seeing this change in the Applicant’s CV, the Respondent conducted an investigation which found that the Applicant had not been appointed to an HOD position at Chesterville Secondary School in the period in question. The Applicant was then suspended, charged, found guilty and a sanction of dismissal imposed effective 17 September 2024.
Aggrieved about his dismissal, the Applicant referred an unfair dismissal dispute relating to misconduct to the ELRC on 27 September 2025. The ELRC set the matter for conciliation and it remained unresolved. After a request for arbitration by the Applicant, he ELRC set the matter for arbitration before me as shown in paragraphs [1] and [2] above.

SUMMARY OF EVIDENCE AND ARGUMENTS

I only summarized the evidence which I regarded to be relevant to the dispute and which helped me to reach my decision.

The Respondent’s case

The Respondent’s Legal Representative, Mr. Bheki Hlela, called his first witness, Mr. Sandile Patrick Nyaba, an investigator and the director of the company named Corruption Hotline (Pty) Ltd who testified under oath as follows: He has a Diploma in Policing and Investigation and was trained as a Police Officer. He was tasked with investigating the matter of the Applicant’s application and CV documents with Chesterville Secondary School on 23 August 2022.
He confirmed the content of his report as contained in Bundle E submitted to these arbitration proceedings. He visited the Chesterville Secondary School where the Applicant used to work as a PL1 Educator and consulted with Mr. Mncube, the school Principal and Mr. Ntimbane, the Deputy Principal of the School.
He established that the Applicant had never been promoted to an HOD position at the school but spearheaded the introduction of the Technical Department in the absence of the HOD in the department.
From June 2010, the Applicant reported to Mr. Ntimbane, an acting HOD of the Science Department at the time.
Mr. Hlela then called his 2nd witness, Mrs. Nokuthula Pam Majali, the Respondent’s Deputy Principal Corporate Services who testified under oath as follows: The Applicant was employed by the Respondent on 05 February 2015. Referring to the Z83 Form signed by the Applicant, she testified that the Applicant signed a declaration that the information he provided including any attachments was complete and correct to the best of his knowledge and that he understood that any false information supplied could lead to his application being disqualified or him being discharged if appointed.
When the Applicant was appointed by the Respondent to the position of Part Time Coordinator, he did not have the required two years’ managerial experience as shown in his CV because when he applied he was a PL1 Educator. He paid a salary in line with the said position.
The requirements for a Campus Manager position were seven years teaching experience and two years managerial experience. The Applicant wrote on his CV that the reason for vacating his PL1 position was a promotion to an HOD position from 2010 to 2015. He did not mention that he was not officially appointed as an HOD but in his CV, he submitted that he was promoted.
He had never mentioned that there was an error in his CV. He only mentioned it in the hearing as a defense. When the Applicant applied for the position of Part Time Coordinator, he misrepresented himself and benefited. He misrepresented himself again when he applied for the position of Campus Manager. He was grossly dishonest as it was not the first time that he used a falsified CV to apply for a position using a falsified CV.
The Applicant’s behavior destroyed trust needed in the employment relationship.
The Respondent’s Legal Representative, Mr. Hlela called his 3rd witness, Mr. Mahlasela who did not testify as the Applicant party submitted that all his interaction with the Applicant was not disputed with regards to the submission of the application documents to the Respondent.
The Respondent’s Legal Representative filed his closing arguments which were considered.

The Applicant’s Case

The Applicant’s Union Representative, Mr. Thembela Madwe called the Applicant, Mr. Phelelani Mthimkhulu who testified under oath as follows: In June of 2010, a Trade and Manufacturing Department was introduced at Chesterville Secondary School and the Principal of the school, Mr. B N Tshabalala required him to head it. He managed the new department whilst awaiting the Department of Education to recruit and appoint an HOD. He performed all the HOD position duties until he left the Department of Basic Education.
In 2015, he was appointed as a PL1 Business Studies Lecturer at the Respondent. He was then transferred to the Engineering Division to lecture Engineering related studies after another Lecturer retired.
In 2016, he was appointed as an Acting Campus Manager but some staff challenged that. An ELRC award terminated his Acting Campus Manager role but he was not joined in that dispute.
In 2017, he was appointed as a Part Time Coordinator for Engineering after hour’s classes.
In 2018, he acted as an Examination Distribution Centre Manager. From 2019 to 2021, he was suspended for 60 days. In 2022, he was suspended for 8 months. In 2023, he performed his PL1 duties.
In March 2024, he received a letter of dismissal. He appealed his dismissal and carried on working. On 10 July 2024, he received another dismissal letter but HR informed him that he was still active and had to carry on working.
On 17 September 2024, he received another dismissal letter.
When he performed HOD duties in 2010, he was paid as a PL1 educator and did not receive any acting allowance.
He applied for 4 Campus Manager Positions at the Respondent in 2018 but he was not shortlisted for any of those posts. Interviewing Committee minutes did not show where they worked on his application as per Collective agreement.
In his CV that he used in 2018 to apply for 4 Campus Manager Posts, he took the work he did from June 2010 as a promotion as he sat in SMT meetings and most performed HOD duties. He was actually an acting HOD and he had informed his daughter to write acting HOD in his CV.
Under cross examination by the Respondent’s Legal Representative, Mr. Bheki Hlela, the following came out amongst others: All TVET Colleges have 3 categories of employees: Those under the Educator Act, Public Service Act and Council Employees. The Applicant was a Council employee.
On 16 September 2024, the Applicant was issued with the outcome of his appeal confirming the sanction of dismissal meted on 01 March 2024. In his ELRC referral, he did not challenge procedure.
The Respondent interpreted the typographical error in his CV as misleading when it was not. The Respondent sent him to a workshop for work to be done in 2026 as he had a good relationship with it. The sanction of dismissal was too harsh. He should not have been dismissed.
He disputed that he reported to Mr. Ntimbane whilst at Chesterville Secondary School. He was meticulous but he was human as well. The CV was his and not his daughter’s. The declaration in the Z83 form was signed by him and he unequivocally accepted responsibility but he was human. He thought the CV said he was an Acting HOD and not an HOD.
He was promoted at Chesterville Secondary school. That part of the CV is correct. The incorrect part was that he was an HOD whilst he was an Acting HOD. His acting as an HOD was an internal arrangement by the School Principal and the School Governing Body. In the covering letter, he stated that he was an acting HOD. However, nothing talks to the covering letter in the applications for positions.
It could not be his daughter’s responsibility when his CV and Z83 form were incorrect. His intention was to inform his employer that he had managerial experience.
In his first application to the Respondent for a PL1 post, he did not include any managerial experience in his Z83 form and CV. There was no acting HOD role mentioned. He did not make remarks about his managerial experience. He did not leave out the information deliberately.
In 2009, the Umbilo Training Centre issued the Applicant an N3 Bridging Course and not an N3 Course. However, in his CV, he indicated that he had an N3 Certificate in Motor Trade Theory from the same institution.
He denied that he applied his mind before updating his CV to include managerial experience when applying for Campus Manager Positions compared to the one he used when he applied for a PL1 Lecturer position with the Respondent.
He was not sure that the signature in the covering letter bearing his name dated 17 July 2018 for post number AS01/07/2018 was his as it was not an original letter but a copy. When it came to the copy of his daughter’s affidavit deposed on 07 April 2025, he accepted that the copy was the same as his original. He agreed at the pre-arbitration meeting that copies could be used instead of originals at the hearing but he disagreed then. The Respondent did something to the documents but he was not sure what it was exactly.
The Respondent removed his signature from his covering letter for a part time coordinator position so that he would not be short listed. He only realized in July 2025. Someone removed the word acting before Campus Manager. When his union representative referred to copies of documents with his signature, he did not doubt them but at cross examination he doubted the documents.
Both Majali and Mncube referred to him as a relative but both testified negatively about him. Majali did because of what she was told. Mr. Mchunu signed his dismissal letter. Mrs. Majali testified that the trust relationship had broken down between him and the Respondent. His relationship with Mr. Mchunu was bad due to people that he reported to bad mouthing him.
He told his daughter to write acting HOD in his covering letter. Whatever his daughter wrote, he owned.
In re-examination by Mr. Madwe, the following came out: the sanction of dismissal was harsh. He was no sure of the content of his CVs as a lot had been done to them.
When he applied in 2017, his CV showed his Coltech Certificate but in 2018, it did not show his Coltech Certificate. He was surprised as the certificate would prove he was formally trained for the computer.
He was an acting Campus Manager and not a Campus Manager. There was a typographical error in his CV. He did not intend to mislead the Respondent.
Mr. Madwe, the Applicant’s Union Representative, called his 2nd witness, Mr. B. N Shabalala, who testified under oath as follows: He was a principal of Chesterville Secondary School from 2005 to until his retirement in June 2018. He recruited the Applicant in 2010 to spearhead a Technical Subjects Department in his school which he did. They started with grade 10. The Applicant was an Acting HOD even though they did not have a substantive post. The Applicant reported to Mrs. Masondo, the Deputy Principal. He and the Governing Body were authorized to act as they did. He and the Governing Body made an arrangement to advance the school for skills to be given to students in the absence of a substantive post.
When the Applicant acted as an HOD, the department was aware a she had to go to workshops and fetched examination question papers. The Ward, Region and Circuit Managers were aware. Each technical subject had a subject advisor. The acting was an internal arrangement for the school. There was no letter from the department. There was no financial incentive for the Applicant for acting as an HOD. There was no problem from quoting his acting HOD experience.
Under cross examination by Mr. B Hlela, the following came out: In the Applicant’s application for a post in PL1 on 21 August 2014, he did not say he was an HOD. An internal arrangement cannot be put officially in application documents as there was no substantive post. No one could act in a vacant post.
A promotion entails the advertisement of a position, application for a post and an appointment. Since there was no substantive post, the Applicant was not promoted. There was nothing about an internal arrangement in the Applicant’s application for a position. The Applicant was not promoted to an HOD position at Chesterville Secondary School. Since his application indicated a promotion, it was an error that the Applicant was responsible for.
When a School Principal tests the opening of a new Department, he worked with subject advisors and did not need to inform the HOD of the Department. The Applicant did perform duties of an HOD from June 2010 whilst at Chesterville Secondary School.
He and the SGB made an internal arrangement for the Applicant to act as an HOD. He would have brought the SGB minutes had he known he was required. He, the secretary and the chairperson signed the minutes. The SGB can add Educators without positions if they raise money to pay them. The Applicant was a PL1 Educator who was made to act as an HOD; the school did not interfere with the funds of the Department.
The Applicant’s Union Representative, Mr. Madwe filed closing arguments which were considered in analyzing the evidence and arguments in this matter.

ANALYSIS OF EVIDENCE AND ARGUMENT

According to item 7 of Schedule 8, The Code of Good Practice-Dismissal, any person who is determining whether a dismissal for misconduct is unfair should consider:
(i) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the work-place and
(ii) If a rule or standard was contravened, whether or not:
(iii) The rule was valid or reasonable rule or standard
(iv) The employee was aware or could have reasonably be expected to have been aware of the rule or standard;
(v) The rule or standard has been consistently applied by the employer and
(vi) Dismissal was an appropriate sanction for the contravention of the rule or standard.
The issue to be determined is whether the dismissal of the Applicant was substantively fair or not. The Applicant was charged with gross dishonesty in that on or about 18 July 2018, he applied for a Campus Manager position misrepresenting the College that he was employed as an HOD at Chesterville Secondary School from 2010 to 2015 when he knew or ought to have known that he was never employed as an HOD at Chesterville Secondary School.
The Applicant conceded that the information in his CV that he was Head of Department from June 2010 to February 2015 at the Chesterville Secondary School was not correct. His defence was that he had asked his daughter to type his CV and she made typographical errors. He had no intention to misrepresent or to falsify the document.
The First Respondent provided evidence that the Applicant applied for a PL1 Lecture position with the first Respondent in August 2014. In his application, he did not mention that he acted in an HOD position in the school in question. He did not mention any HOD functions in remarks and under leadership experience. The impression the Applicant gave was that he had no managerial experience when he applied to join the First Respondent initially.
However, in December 2017, when the Applicant applied for Part Time Coordinator position which needed managerial experience, he updated his CV to indicate that he was promoted to an HOD position from June 2015 at the Chesterville Secondary School. He went on to add HOD functions he performed. As a result, the Respondent appointed him as a Part Time Coordinator and paid him a salary in line with someone who had managerial experience and he benefited. Officially, he had always been a PL1 Educator and then a Lecturer.
In July 2018, the Applicant applied for 4 Campus Manager Positions with the Respondent and indicated that he had been promoted to an HOD at the Chesterville Secondary School in June 2010. This information was reflected in his Z83 form, covering letter and CV. The Applicant’s employment history then reflected that he had managerial experience so that he could qualify and meet the minimum requirements for the Campus Manager position.
The First Respondent’s witnesses testified that the Applicant signed a declaration that the information he provided including any attachments was complete and correct to the best of his knowledge and that he understood that any false information supplied could lead to his application to being disqualified and or discharged if appointed.
The Applicant and his witness, Mr. B N Shabalala testified that the Applicant spearheaded the start of a new Technical Subjects Department and performed HOD duties. There was no substantive position. There was no financial benefit to the Applicant for acting as an HOD as he never received any acting allowance from the School Governing Body. It came out that his acting as an HOD was an internal arrangement at the school.
The Applicant considered his acting an HOD to be a promotion. He conceded that stating that he was an HOD was a mistake due to the typographical error by his daughter. He admitted that since he signed, he was responsible for the error.
The principle of caveat subscriptor (let the signer be aware) states that by signing a document, one consents to its terms and one cannot escape liability because one did not read it or did not agree with its’ contents unless there was an excusable mistake, fraud or misrepresentation.
It is common cause that the application documents filed by the Applicant in December 2017 and July 2018 are not a true reflection of the Applicant’s official employment history. The question is whether this was due to misrepresentation by the Applicant or due to an excusable mistake.
The mistake as submitted by the Applicant suited him as he applied for positions that required managerial experience. When such experience was not required, the “mistake” was not made. I am persuaded by the First Respondent’s case that the Applicant provided information to mislead the First Respondent in order to appear to meet the minimum requirements for the Case Manager positions when he applied in July 2018. On a balance of probabilities, the First Respondent proved that the employee breached a rule as held in Exxaro Coal (Pty) Ltd Grootegeluk Mine v NUM obo Azwianewi and Others (JR2028/18) [2021] ZALCJHB 120 (11 June 2021).
This act of the Applicant amounted to gross dishonesty. It is expected that employee remain honest to their employers. The applicant broke this common law reasonable rule.
In LTE Consulting (Pty) Ltd v CCMA and others (JR1289/14) 2017 ZALCJHB 291, a Commissioner’s finding of unfair dismissal of an employee was set aside after it was established that the employee lied that he was a Chartered Accountant and that he possessed certain academic qualifications. In paragraph 21, the court further found that the misrepresentation in question amounted to grass dishonesty.
In the Department of Home Affairs and Another v Ndlovu and Other (DA 11/2012) [2014] ZALC11; the Court held that a misrepresentation by an employee (as to this qualifications and skills, etc.) before the commencement of employment has been held as sufficient to warrant a dismissal even if it is discovered some time later the employee has rendered satisfactory performance.
Based on the evidence before me, I am satisfied that the sanction of dismissal as proffered by the First Respondent was fair.

AWARD

I hereby find that the dismissal of the Applicant, Mthimkhulu P by the First Respondent, Ethekwini TVET College was substantively fair.
Accordingly, the Applicant’s case is dismissed.

L Mkhize