06 October 2026 – ELRC185-26/27GP

Case No: ELRC185-26/27GP

IN THE ELRC ARBITRATION BETWEEN:

NEHAWU obo MORGAN PHASOANE LESIBA Applicant
and

DEPARTMENT OF HIGHER EDUCATION AND TRAINING Respondent
(CENTRAL JOHANNESBURG TVET COLLEGE)

ARBITRATION AWARD

Details of hearing and representation

This arbitration hearing took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was heard over several days at the offices of the Respondent in Johannesburg on 28 July 2026 and 04 September 2026.
The Applicant is Mr Lesiba. M.P, represented by Mr Lephoto D, an official from NEHAWU. The Respondent is the Gauteng Department of Higher Education and Training, represented by Mr Nkambule, TJ, Assistant Director: Labour Relations.

Issue to be decided

I must decide whether the dismissal of the Applicant was substantively and procedurally fair. If I find that the dismissal was substantively and procedurally unfair, I must determine appropriate relief. The Applicant sought reinstatement as a primary relief.

Background to the dispute

The parties have submitted a signed pre-arbitration minute which was read and forms part of the record. The Applicant was employed by the Respondent as a PL1 Lecturer from 17 September 2012. At the time of his dismissal, he earned a gross salary of R28 439.50 per month. The Applicant is challenging substantive fairness of his dismissal in that the sanction was too harsh and the misconduct is not of such gravity that it makes continued employment intolerable because the Applicant showed genuine remorse.
The Applicant is also challenging procedural fairness of his dismissal on the grounds that the Respondent used an incorrect disciplinary code that resulted in notice of inquiry not properly served, the Respondent did not inform the Applicant of his right to legal representation, disciplinary hearing was conducted 24 days later instead of 10 days and outcome was issued 38 days later instead of 5 days.
Parties submitted bundles of documents as follows, bundle “R” for the Respondent and bundle “A” for the Applicant. The parties were given an opportunity to submit closing arguments on 11 September 2026.
The Applicant was charged as follows: “It is alleged that on 27 November 2023 at Alexander Campus, you committed an examination irregularity in that you arranged and made a student to write the examination paper twice by giving her another examination question paper and script to write alone in class immediately after finishing writing officially with other students, this led to the student ending up with two scripts submitted to the examination office”.
A comprehensive outline of the process was given to the parties, including but not limited to how evidence is to be presented and how versions are weighed; the standard of proving a case on a balance of probability, the onus in terms of section 192, as well as the importance of challenging an incompatible version through cross-examination, the consequences of not doing so and binding effects of the pre-arbitration minutes.

Summary of evidence

The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The recordings of the proceedings will reflect the complete testimony of the witnesses.

Respondent’s case

Mr Joseph Chiloane (“Chiloane”) testified under oath that he was a chairperson of the disciplinary hearing. Charges were read to the Applicant and he understood. The Applicant pleaded guilty. Examinations form the core function of the Respondent and an employee who tempers with examination cannot be trusted. Examination irregularity brings a reputational damage around the community and they would doubt the school. The charge leveled against the Applicant is serious in nature, He has been running exams for 30 years. The Applicant was not remorseful when he pleaded guilty.
He testified that there was no application for legal representation and if there was any he was going to entertain it. Disciplinary Code used, PSCBS Resolution 1 of 2003 is the same as ELRC Collective Agreement 1 of 2013.
Under cross-examination he testified that he is familiar with disciplinary policies. NEHAWU is a signatory to PSCBC Resolution 1 of 2003. Both collective agreements take precedence and they are used interchangeably. Legal representation is not automatic particularly when the matter is still dealt with internally. The Applicant was represented by a union, and he did not have an issue with that. The union should have known if the Applicant wanted legally representation. He agreed and accepted that time limits were not complied with. Non-compliance with the time limits is a subject of debate because guidelines are peremptory. The Applicant pleaded guilty, but he had to ask questions to establish if the Applicant was coerced or not.
Under re-examination, he testified that legal representation was not argued in the disciplinary hearing nor received any directive from the Respondent. Parties were requested to submit closing arguments, but they still did not submit on time.

Applicant’s case

Mr Morgan Phasoane Lesiba (“Lesiba”) testified under oath that sanction imposed was harsh and procedure was unfair. He is a first-time transgressor. He has shown remorse and he is rehabilitated. He had been with the Respondent for 11 years when the transgression happened in 2023. He worked in 2024 and 2025, so the trust relationship has not broken down irretrievably. During that period, he worked as an invigilator as contained in bundle “A 55 to 94” until 08 December 2025.
He testified that he does not have a relationship with the student. The student was emotional and indicated that her parents were going to beat her if she failed the subject. He admited assisting the student. The Respondent used a wrong resolution, so he was not allowed to be legally represented, and the Respondent delayed the process. Notice issued to him in February 2024 was not compliant with clause 5.1, 5.2(e), 7.1, and 7.21 of the ELRC Collective agreement
Under cross examination he testified that he admitted that the misconduct he committed is of serious nature. It is not allowed for him to invigilate alone. On 27 November 2023 he was not invigilating. It is not easy to commit any transgressions in front of other colleagues. He has not attended any course on rehabilitation, but he has not committed the same transgression again.
He was served with notice to attend a disciplinary hearing on 05 February 2024 which was in line with the rules. He agreed that the disciplinary hearing had to be postponed because of illness. He has been previously charged.
He agreed that clauses contained in ELRC Collective Agreement 1 of 2013 are the same as clauses contained in PSCBS Resolution 1 of 2003. He did not apply for legal representation, and he understood that it is the Respondent who must give directive. Parties had to submit closing arguments, but he does not remember the date. He counted days he had to be issued with an outcome from the day of the last sitting.
Under re-examination, he testified that the charge and outcome against him were not concluded even now. He knew he had to apply for legal representation, but the notice did not include that right.
Mr David Lepoto (“Lephoto”) testified that he is a lecturer. In 2025 he was charged with misconduct as contained in bundle “A31”. The Respondent in his case used ELRC Collective Agreement to charge him which was supposed to have been used in the Applicants case. PSCBS Resolution is not applicable in PL1 Lecturers.
During cross-examination he testified that ELRC Collective agreement was concluded in 2013 and the college was under College Council and DHET. Colleges are now under DHET. Lecturers contribute to ELRC and PSCBC.

Analysis of evidence and arguments

Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. In considering the fairness of the dismissal of the Applicant for misconduct, I will consider the principles contained in the Code of Good Practice: Dismissals, as contained in Schedule 8 to the Labour Relations Act 66 of 1995 (the Code). The dismissal of the Applicant is not in dispute the Respondent is therefore required to prove on a balance of probabilities that the dismissal was substantively fair and procedurally fair.
Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)).
The Applicant ‘s contention is as follows: sanction was too harsh, misconduct is not of such gravity that it makes continued employment intolerable because the Applicant showed genuine remorse and Respondent used an incorrect disciplinary code that resulted in notice of inquiry not properly served, the Respondent did not inform the Applicant of his right to legal representation, disciplinary hearing was conducted 24 days later instead of 10 days, and outcome was issued 38 days later instead of 5 days.

Substantive fairness

Mutual trust is the foundation of every employment relationship. The Respondent’s witness Chiloane, testified that the charge leveled against the Applicant is serious in nature. The Applicant was not remorseful when he pleaded guilty. The Applicant on the other hand submitted that he is a first-time transgressor, he has shown remorse and he is rehabilitated. There is chasm between regret and remorse. It is my view, the Applicant regretted his conduct but this does not necessarily translate to genuine remorse.
The Applicant testified that he worked in 2024 and 2025, so the trust relationship has not broken down irretrievably. During that period, he worked as an invigilator as continued in bundle “A 55 to 94” until 08 December 2025. I am of the opinion that certain misconduct, on face value, may, on the nature of the misconduct itself, infer that the employment relation is irretrievably broken. The Applicant on the day of the incident was not invigilating. I agree with the Respondent that the Applicant could not violate examination regulations because he was with other invigilators.
In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The Code states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others [2000] 21 ILJ 1051 (LAC) at 1058F-G).
The Applicant further testified that he has been with the Respondent for 13 years and when the transgression happened he had 11 experience with the same Respondent. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC). Mr Lesiba`s years of service cannot outweigh the gravity and seriousness of his offence.
His conduct should be seen in light of how serious his conduct was in that, as a lecturer, he admitted assisting the student and/or arranging for her to write twice, despite him understanding how serious the offence is. I therefore find that the sanction of dismissal is fair and appropriate in the circumstances.
I accordingly find that the Applicant’s dismissal substantively fair.

Procedural fairness
30. It is worth mentioning that procedural unfairness challenged by Applicant emanates from a claim that the Respondent used a wrong Collective Agreement. It is settled law that acollective agreement binds the specific parties who signs it, and in certain conditions it also binds non-union employees in the workplace.
31. The Respondents witness Chiloane, testified that both Collective Agreements take precedence and they are used interchangeably. Lephoto testified that when he was charged, the Respondent used ELRC Collective Agreement. The Respondent then used PSCBC to charge the Applicant. ELRC Collective Agreement must be used instead of PSCBC Resolution. I disagree. NEHAWU is a signatory to the PSCBC and the Applicant still contributes to both Councils.
32. I am now going to deal with specific sections which are in dispute. The Applicant in his testimony conceded that clauses contained in ELRC Collective Agreement are the same as clauses contained in PSCBC Resolution. Under cross-examination he stated that he was served with notice to attend a disciplinary hearing on 05 February 2024 which was in line with the rules. He further agreed that disciplinary hearing had to be postponed due to illness.
33. He did not apply for legal representation, and he understood that it is the Respondent who must give directive. Chiloane on the other hand testified that there was no application for legal representation and if there was, he was going to entertain it. In any event, legal representation is not automatic in disciplinary inquiries unless specifically agreed to. I find that the Applicant was given an opportunity to make representation and the Respondent complied in issuing him with the notice to attend a disciplinary hearing.
34. Lastly, the Applicant also stated that he was notified of his outcome 38 days after the disciplinary hearing. However, he testified that parties were directed by the chairperson to submit closing arguments, but he does not remember the date. This was also confirmed by Chiloane. The Applicant stated that 5 days in which he had to receive a final outcome is calculated from the last sitting of the disciplinary hearing. This cannot be correct. The Applicant could not remember the date in which closing arguments had to be made or remember when exactly did he receive the final outcome of the disciplinary hearing.
35. It is also important to consider whether the interests of the Applicant were violated or not and whether he has suffered any prejudice as a result of non-compliance with the time frames. I am of the opinion that the applicant has not demonstrated the non-compliance and any prejudice suffered. I therefore find that the Applicant`s dismissal was procedurally fair.

Relief