09 June 2026 – ELRC372-25-26GP

ARBITRATION AWARD

Case Number: ELRC372-25-26GP
Commissioner: E Maree
Date of Award: 8 June 2026

In the ARBITRATION between

PSA obo Itumeleng Machake Medichane
(Applicant)

And

Department of Higher Education & Training

Western TVET College

(Respondent)

Applicant’s representative Ms. Y. Ralawe

Respondent’s representative Mr. N. S. Zitha

Details of hearing and representation

The arbitration hearing regarding an alleged unfair labour practice, referred in terms of section 191 of the Labour Relations Act 66 of 1995 (as amended), (the ‘’LRA’’) was heard on 5 September 2025, 2 December 2025, 13 March 2026 and was concluded on 8 May 2026. The matter was heard at Westcol TVET College, 40 Johnstone Street, Randfontein.
The applicant was represented by Ms. Y. Ralawe an official from PSA, while the respondent was represented by Mr. N.S. Zitha, the Labour Relations Officer.
The arbitration was electronically recorded, and handwritten notes were taken. At the conclusion of the last arbitration hearing, the parties have agreed to submit written closing arguments on or before 18 May 2026. The applicant’s representative then requested permission to submit on/before 22 May 2026 (due to family issues).

Issues to be decided

I must determine whether or not the applicant was subjected to an unfair labour practice when issued with two months’ unpaid suspension. In the event of a finding of unfairness, I must determine the appropriate relief.

Background to the dispute

The applicant is employed as an PL1 lecturer since 2014 at the Engineering Department. He earns R26,069.05 per month.
The applicant was charged with misconduct and attended a disciplinary hearing on 16 and 17 February 2023 on two charges of displaying disrespectful conduct towards Ms M de Klerk the acting HOD for the Business and Engineering Department Divisions at Randfontein Campus on 15 November 2021 and 25 March 2022 during official meetings.
Following the finding of guilt on both allegations and the imposition of dismissal on 16 March 2024, the applicant lodged an appeal against the sanction which was then changed two-months unpaid suspension on 18 June 2025.
The applicant disputed the contravention of the workplace rule/s and seeks the uplifting/setting aside of the sanction.
The applicant submitted bundles A1 and A2 and the respondent bundle B. The respective bundles were not disputed.

Survey of evidence and arguments
The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.

Applicants’ s evidence

The applicant testified and called four (4) witnesses in order to prove, on a balance of probabilities, that he was subjected to an unfair labour practice.
The applicant Mr. Itumeleng Machake Medichane testified that he was a shop steward for SALPSWSU (Bundle A pages 23 and 24) but was not consulted before discipline was instituted. Due to this the union could not act on his behalf or attempt to settle the matter. The charges levelled against him ‘’was very unfair’ and the time period since the time of the incident until the outcome ‘’was grossly unfair’’. He was further prejudiced as the respondent applied the disciplinary code (Bundle A, Annexure B page 52) and not ELRC Collective Agreement 1/2013 (Bundle A pages 45-96).
Regarding the charges, Mr. Medichane submitted that he was not disrespectful towards Mrs de Klerk during the meetings on 15 November 2021 and 25 March 2022. He was professional and ‘’did not utter the words’’. The chairperson was unfair as he accepted ‘’wrong evidence’’ and did not consider his version. The initiator (Mr. Zitha) was also conflicted as he was conducting the investigation and acted as the initiator and witness. He was not interviewed during the investigation (Bundle B page 27 paragraph 9).
According to Mr, Medichane the constituents wanted clarity on the ‘’staff morning briefing’’ and he thus acted in the interest of the employees and in his role as shop steward when he ‘’engaged in dialogue and asked questions’’ at the meetings. It was however, seen as disrespect. There was a petition from the employees of the Engineering Department (Bundle A Pages 21 & 22) whom he represented.
In explaining the incident during the meeting on 15 November 2021, Mr Medichane stated that he was at the door with some colleagues and saw Mrs de Klerk standing in front. He then raised his hand and said ‘’sorry Ma’am please clarify if I am at the wrong meeting’’. He knew Mrs de Klerk to be a Business Lecturer (PL2). She told him to ‘’sit down’’ and he folded his hands and said ‘’thank you Ma’am’. It ‘was normal’ to stand during engineering meetings, thus he was standing with two colleagues. He did not refuse to sit down and asked questions of clarity on behalf of the constituents. He asked Mrs de Klerk if she was willing to recuse herself from the meeting or to withdraw from the meeting as he ‘’knew’’ the campus manager was ‘’wrong’’ to say Mrs de Klerk was the HOD as she (de Klerk) was at the Business department and she was at an engineering meeting. He said she ‘’must withdraw’ until the issue is clarified. Mrs. de Klerk said he was humiliating her which he denied and said, ‘you humiliate yourself’.
In conclusion Mr Medichane stated that he was found guilty of dishonesty but was not charged with such. Both charges were wrong as he was not disrespectful towards Mrs de Klerk.
The first witness of the applicant, Mr. Willem (Billy) Frederick Sass stated that he had been a PL2 Lecturer for around 15 years and retired towards the end of April 2025. He knows the applicant and they are good friends. He attended the engineering department meeting on 15 November 2021. Mrs de Klerk was ‘busy doing an introduction’ when the applicant asked her a question. He cannot recall the exact words as he was not paying attention but it was ‘’something like, why are you denying the petition that was drawn up’. They drafted the petition about 2 or 3 weeks previously when they heard that Mrs de Klerk from Business would manage their engineering department. He signed the petition (number 17 page 22 bundle A). They ‘’found it interesting’ as to why Mrs de Klerk was acting. The engineering department had around 22 lecturers, their PL2 had retired and two PL1 lecturers were managing the department. They ‘heard’ Mrs de Klerk would ‘’take charge’ of their department and had questions as to ‘’the way she would manage our department’ and how she was appointed”.
According to Mr. Sass the applicant was standing, raised his hand and said ‘’on what authority are you talking, do you know of the petition? Mrs de Klerk said ‘’I cannot talk on that now’ and she continued the meeting. Then the applicant again ‘’asked something’ and she answered. It ‘’continued like that’ with the applicant asking and Mrs de Klerk answering. He ‘does not think’’ the applicant was disrespectful and knows him as ‘spokesperson for the department’ and he was a union member. They all knew that the applicant would address their issues during meetings. Mrs de Klerk did not give the applicant and opportunity to talk and he raised his hand and said, ‘can I talk, can I say something’. In the end Mrs de Klerk left by ‘just walking out of the auditorium’.
The second witness Mr. Moche Philemon Nchoe testified that he was at Randfontein during 2015 until 30 April 2025 and is currently at Westonaria. He is a PL1 Lecturer at the Engineering Division. He attended the meeting on 15 November 2021 and they arrived as the meeting was about to start. They were ‘’surprised’’ to see Mrs de Klerk as the chairperson of the meeting as she ‘’was under dispute’ and the engineering division lodged a petition due to her irregular appointment.
Mr. Nchoe stated that ‘’immediately’’ when they entered, the applicant (a shop steward) asked questions. The applicant raised his hand and asked, ‘am I in the right meeting’. Mrs de Klerk then said to him ‘sit down’ and they ‘’went to and fro’. it was a long argument and he cannot recall what was said. The applicant asked Mrs de Klerk if she was aware of the petition.
In conclusion, Mr. Nchoe stated that he ‘’would not say’ that the applicant was disrespectful. The applicant ‘has a high voice’ that might be seen as disrespectful. He also attended the meeting on 25 March 2022 during which the applicant as shop steward ‘had a mandate’ and asked Mrs de Klerk ‘ is the campus manager coming’. This meeting was led by Mr/Ms Barrington who said that the campus manager would not attend and they said they wanted the campus manager to attend and to answer questions. Mrs de Klerk then dispersed the meeting.
The third witness, Mr. Joseph Keoagile Sekgopi testified that he had been employed since January 2013 and is part of the support staff at the financial office and deals with student accounts and registration. He was present on 22 March 2022 for the daily briefing and when he entered saw employees from engineering and business. They waited for the campus manager to chair the meeting and if not present, some one else would be appointed to chair the meeting. He did not hear the applicant utter the words as stated in the charge and he was not disrespectful. Mrs de Klerk and Ms Barrington were standing in front. After Mrs Barrington addressed them, she sat down then Mrs de Klerk went to the podium facing the business studies employees and she addressed them. He was sitting and facing the opposite direction.
According to Mr Sekgopi he waited for the campus manager to start the meeting. The union sent a letter requesting for the policy that regulates morning briefings. The campus manager did not attend the meeting and he heard Mrs de Klerk adjourning the meeting. According to him there was no meeting as the campus manager did not attend.
The fourth witness Mr. Douglas Martin testified that he is at the corporate office as administrator and in charge of the fleet and assets. He knows the applicant since 2014 and is aware of the charges against him. The applicant is ‘’very quiet and very respectful’. During meetings he ‘never raises his voice and never gets angry’. He did not attend the meetings mentioned in the two charges.
According to Mr Martin the ‘sanction was harsh’ and the applicant was a shop steward and as such raised concerns.

Respondent’s case

The respondent called three (3) witnesses to testify on its behalf.
The first witness Mr. Petros Elvis Nkosi testified that he was appointed as the chairperson at the applicant’s disciplinary hearing and made a finding based on the evidence presented. Following arguments in mitigation and aggravation, he imposed a sanction (Bundle A pages 45, 52,57 – 59). He signed the finding ( Bundle B page 34) on 31 October 2024. The applicant was not charged with dishonesty and thus not found guilty thereof.
Mr Nkosi submitted that evidence was led that the applicant was unhappy with the appointment of Mrs de Klerk to act and during a meeting, he questioned such. The applicant did not dispute this version during cross-examination and his only issue was the procedure followed to appoint her to act. The applicant did so during the two meetings mentioned in the charges and disrupted the meetings. He found the evidence of Mrs de Klerk (who stated she felt small) credible while the applicant attempted to justify why he acted in such manner.
It was further testified by Mr. Nkosi that in limines were raised and there were postponements mainly caused by the applicant.
The second witness Mrs Mandi de Klerk testified that she drafted the report (Bundle B pages 1 & 2) on 29 November 2021 following a meeting on 15 November 2021. She was requested by the campus manager, Ms Machaka to assist at the engineering department ( where there was only PL1 Lecturers) and as she was a PL2. She had also acted as PL3 until there was a permanent appointment.
Mrs de Klerk stated that she arranged a meeting with the engineering department during which the applicant constantly interrupted her, asking her ‘why are you here, this is not your place to be here’. He continued his interruptions, raised his voice to such an extent that the meeting could not continue. This conduct undermined her authority and was disrespectful. She was embarrassed and found it improper that a line manager is addressed in such manner. This conduct of the applicant was unacceptable.
Regarding the meeting on 25 March 2022, Mrs de Klerk stated that it was a business morning briefing in the staff room while the engineering meeting was in the auditorium. The applicant then attended their business meeting in the staff room. He again disrupted the meeting, asking where the campus manager was. She told him the campus manager would not attend and he continued interrupting the meeting. He raised his voice and acted in the same manner as during the meeting of 15 November 2021. She wrote a report due to his unacceptable behaviour as such needed to be corrected. She did the job that was assigned to her.
The third witness Doctor Mokgadi Elsa Machaka testified that during 2021 she was the campus manager at Randfontein and as such was amongst others, responsible for the overall smooth running of teaching and learning.
It was submitted by Dr. Machaka that she knows Mrs de Klerk a PL2 Lecturer at the Business division. She requested Mrs de Klerk to provide a written report (Bundle B Pages 1 & 2) resulting from the applicant’s manner of talking to her that was of a harassing nature during meetings and as he disrupted meetings.
According to Dr, Machaka the engineering department had no manager due to retirement of the PL2 lecturer and she requested Mrs de Klerk to manage/oversee the engineering department. The only other PL2, Mr de Bruin, was assisting at MCV. Mrs de Klerk was to assist until the HR Department finalised the process to appoint PL2 Lecturers and the finalisation of the structure. Until such time teaching had to continue. She communicated the decision during meetings and explained that Mrs de Klerk was requested to oversee engineering and business studies. No concerns were raised during the meeting/s or thereafter. A manager can request a subordinate to do certain duties in order to gain experience and knowledge. Mrs de Klerk did not receive payment for doing the extra work
Dr Machaka testified that after she received the report from Mrs de Klerk she escalated it to the Principal for investigation as they did not have the capacity to do so.

Analysis of evidence and arguments

I must determine if the respondent committed an unfair labour practice when imposing the sanction of 2-months unpaid suspension.
Section 186 (2) (b) of the LRA defines an unfair labour practice as follows:

(2) Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –

(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee’’

It is trite law that the onus in an unfair labour practice is on an applicant to prove that the conduct complained of, in this matter the imposing of the unpaid suspension, constituted an unfair labour practise. (Buffalo City Public FET College v CCMA and others (P372/12) (2016) ZALCPE (handed down on 4/11/2016).
Two charges of displaying disrespectful conduct towards Ms M de Klerk, the acting HOD for the Business and Engineering Department Divisions at Randfontein Campus on 15 November 2021 and 25 March 2022 during official meetings were levelled against the applicant.
Extensive evidence and exhaustive cross-examination were conducted over the period this matter was heard. The crux of the case however, is not intricate as a number of salient issues were common cause.
It was common cause that the meetings were held on said dates and that during such there were verbal interactions between the applicant and Mrs. de Klerk. The nature of such is the subject of the charges and of this award.
A lot of time was spent in evidence and cross-examination on issues such as the applicant’s claim that he was a shop steward, the petition, the appointment as HOD, the acting policy, the ‘wrong code’ used to charge the applicant as well as the period from the time the incidents occurred until the hearing was held.
Holistically speaking a number of these issues, has no impact in determining if the conduct of the applicant amounted to disrespect.
The applicant painted a picture of himself -in exhaustive detail- of a shop steward acting with a mandate when he questioned the appointment of Mrs de Klerk and whilst doing so, acted in a respectful manner and in no way undermined/disrespected Mrs de Klerk.
The crux of the applicant’s evidence ( Paragraphs 20-24 supra) was that he was not disrespectful but professional and ‘’did not utter the words’’ during the meetings. He stated that the constituents wanted clarity on the ‘’staff morning briefing’’ and he thus acted in the interest of the employees and in his role as shop steward when he ‘’engaged in dialogue and asked questions’’ at the meetings which was seen as disrespect. Regarding the meeting on 15 November 2021 the applicant stated that he was at the door with some colleagues and saw Mrs de Klerk standing in front and he then raised his hand and said ‘’sorry Ma’am please clarify if I am at the wrong meeting’’. This was due to knowing Mrs de Klerk to be a Business lecturer (PL2). She told him to ‘’sit down’’ and he folded his hands and said ‘’thank you Ma’am’. He stated that It ‘was normal’ to stand during engineering meetings, thus he was standing with to colleagues and did not refuse to sit down.
The applicant further stated that he asked Mrs de Klerk if she was willing to recuse herself from the meeting or to withdraw from the meeting as he ‘’knew’’ the campus manager was ‘’wrong’’ to say Mrs de Klerk was the HOD as she (de Klerk) was at the Business department and she was at an engineering meeting. He said she ‘’must withdraw’ until the issue is clarified. Mrs. de Klerk said he was humiliating her which he denied and said, ‘you humiliate yourself’.
The cross-examination of Mrs de Klerk amongst others revolved around the acting policy, questions regarding minutes and/or agendas of the meeting as well as the fact that the applicant ‘’did not shout but has a loud voice’. It was put to Mrs de Klerk that without minutes/agendas her ‘’statements are not true’’. It this argument is to be accepted, then the applicant’s version, in the absence of minutes\agendas can also not be true.
The applicant’s version that is that he raised his hand and said ’sorry Ma’am please clarify if I am at the wrong meeting’’ was not put to Mrs de Klerk nor was his version that he was told to sit down and that he folded his hands and said ‘’thank you Ma’am’.
It was also not put to Mrs de Klerk that the applicant (as he had testified during evidence in chief) had asked her if she was willing to recuse herself from the meeting or to withdraw from the meeting as he ‘’knew’’ the campus manager was ‘’wrong’’ to say Mrs de Klerk was the HOD as she (de Klerk) was at the Business department and she was at an engineering meeting. It was also not put to Mrs de Klerk that the applicant said she ‘’must withdraw’ until the issue is clarified and that Mrs. de Klerk said he was humiliating her which he denied and said, ‘you humiliate yourself’.
As stated the cross-examination of Mrs de Klerk revolved around the issues as mentioned in paragraph 54 (supra). It was at one stage put to Mrs de Klerk that although she made a report/statement (Bundle B pages 1-2) regarding the meeting of 15 November 2021, she had not done so regarding the meeting on 25 March 2022. It was put to Mrs de Klerk that ‘I put it to you; it is not in bundles A or B’’. Mrs de Klerk however pointed out her report/statement regarding this meeting on page117 of Bundle A (that of the applicant).
It was also put to Mrs de Klerk that the applicant ’did not shout but has a loud voice’. Strangely, the applicant never mentioned his ‘’loud voice’’ during evidence in chief. It must however be said that the applicant when rendering his evidence spoke loudly. I can however, not make a determination if such is his normal voice or a ‘’put on’ to convince me that such was his normal voice.
The applicant’s evidence shows interaction between himself and Mrs de Klerk. It matters not if such was in a ‘’loud’’ or ‘’normal’’ voice or done as shop steward or not. The applicant’s own version shows disrespect and undermining of authority by publicly questioning her authority to chair the meeting, asking her to recuse herself and saying she ‘’humiliates herself’’ when Mrs.de Klerk stated that he was humiliating her.
The applicant’s witness Mr. Nchoe stated that ‘’immediately’’ when they entered the meeting on 21 November 2021 meeting, the applicant asked questions. He stated that the applicant raised his hand and asked, ‘am I in the right meeting’. Mrs de Klerk then said to him ‘sit down’ and they ‘’went to and fro’. He concluded that it was a long argument and he cannot recall what was said. The applicant asked Mrs de Klerk if she was aware of the petition. This version thus only supports that of the applicant in so far as he allegedly asked if he was at the right meeting as Mr Nchoe seemingly lost interest in the rest of the argument he described as ‘long’. This ‘’long’’ argument by its very nature of questioning the right/authority to chair a meeting and to seemingly continue doing so, is disrespectful and disruptive. Again, it matters not if such was a loud or normal voice or if it was done as shop steward or not.
Mr. Nchoe also stated that he ‘’would not say’ that the applicant was disrespectful. The applicant ‘has a high voice’ that might be seen as disrespectful. He testified that he also attended the meeting on 25 March 2022 during which the applicant as shop steward ‘had a mandate’ and asked Mrs de Klerk ‘is the campus manager coming’. The version of the applicant regarding this meeting was only that he ‘’did not utter the words’’.
The second witness, Mr. Sekgopi added no real value to the evidence as he only testified that he did not hear the applicant utter the words as stated in the charge and that he was not disrespectful. It is not clear how the witness can claim the applicant was not disrespectful as he heard no utterances either those mentioned in the charge or any others.
The last witness Mr. Martin also added no real value to the case of the applicant as he testified that he was not present at the two meetings. He did however claim that the applicant is ‘very quiet and very respectful’ and during meetings, and ‘never raise his voice and never gets angry’. This is in contrast to the claims that the applicant ‘’had a loud voice’’.
The other two witnesses of the respondent was the chairperson, Mr. Nkosi, who submitted evidence as to how he made the decision on guilt as well as his decision to dismiss the applicant. He testified that the applicant did not dispute the incidents and that his only issue was the procedure that was not followed in appointing Mrs. de Klerk to act.
Mr. Nkosi was questioned regarding the claim that he found the applicant guilty of dishonesty despite not being charged with such and for stating he is guilty of ‘’all’’ charges despite charge 3 being withdrawn. Having studied the outcome it is clear that charge 3 was withdrawn ( Page 25 paragraph 4 Bundle B) and that the finding of guilt (page 34) could logically only refer to the remainder of the charges namely charges 1 and 2.
Bundle A2 shows the decision on sanction (dated 16 March 2024) and indeed shows the contention made by Mr Nkosi that ‘’the employee was charged with dishonesty’’. The remainder of the verdict outcome deals with the facts of the case ( the disruptions during the meetings) and a reference that the mitigation and aggravating factors were considered. There is also reference to a body of case law. The analysis of Mr Nkosi does not refer to dishonesty although such is referenced in the case law he quoted. During cross-examination he explained that case law quoted was to show the effect of a breakdown of the trust relationship and not showing remorse.
Mr. Nkosi was also questioned regarding the contention that the incorrect resolution was used to charge the applicant. The charges were brought in terms of Resolution 1 of 2003 of the PSCBC and it was contended on behalf of the applicant that it should have been brought in terms of Collective Agreement 1 of 2013. Mr. Nkosi stated that the applicant was charged by the respondent and that no in limine was raised regarding this issue.
This issue was raised during appeal (Bundle A page 97). It was stated that the applicant was charged in terms of PSBC Resolution 1 of 2003 whereas he should have been charged ‘’as an educator the charges were supposed to be in terms of the Educators Act’’. During the arbitration the contention was that the charges should have been in terms of Collective Agreement 1 of 2013.
The charges were brought in terms of clauses 6 and 7 of Resolution 1 of 2003 of the PSCBC ( ‘’The Resolution’’). These clauses deal with procedural issues amongst others the notice of the enquiry, conducting the enquiry, sanctions and appeal.
The resolution does not contain a list of offences that are regarded as misconduct nor any recommendation regarding the sanctions to be imposed for each. It is stated that the notice inter alia must contain a description of the misconduct.
The notice served on the applicant contain a detailed description of the dates of the meetings and the alleged acts of misconduct (Bundle A page 25).
In Malapalane v Glencore Operation South Africa (Pty) Ltd (2018) 38 ILJ (LAC) it was held that disciplinary charges need not be strictly framed in accordance with the wording of the relevant acts of misconduct listed in the employer’s disciplinary code. It was held that it was sufficient that the misconduct alleged in the charge sheet was set out with sufficient clarity as to be understood by the employee.
This was done as the applicant was informed in detail of the allegations against him.
During vigorous and lengthy cross-examination regarding the aspect of the ‘’wrong code’’ being used and with paragraphs in both the resolution and the CA, pointed out and read, the applicant admitted/conceded that he was an employee of the State (DHET) and not of FETCEO and that the resolution thus applies.
It is interesting to note that the neither the applicant (a shop steward) or his union representative took any issue with this during the disciplinary hearing. The evidence of Mr. Nkosi regarding this aspect was also not disputed.
There is no requirement in an unfair labour practise to show substantive and procedural fairness.
In Mandla Skosana v CCMA and others (JR) 2160/15) (handed down on 6 March 2019) the Court held that in determining fairness, the proper context must be considered. There exists no separate requirement of procedural fairness in an alleged unfair labour practice. The proper enquiry thus entails whether the suspension of the benefit as had happened in the Skosana matter, was objectively justified and not irrational, arbitrary or mala fide. Contrary to an unfair dismissal dispute where a clear distinction is often drawn between substantive and procedural fairness. This is not the case when determining fairness in an unfair labour practice dispute and a more holistic approach based on all the evidence should be adopted.
Mr Nkosi was also questioned about the period over which the hearing, its outcome and appeal and its outcome were conducted. This aspect will be addressed later in the award.
The second witness Doctor Machaka testified that during 2021 she was the campus manager at Randfontein and as such was amongst others, responsible for the overall smooth running of teaching and learning. She submitted that the engineering department had no manager due to retirement of the PL2 lecturer and she requested Mrs de Klerk to manage/oversee the engineering department.
Dr Machaka stated that the only other PL2, Mr de Bruin, was assisting at MCV. Mrs de Klerk was to assist until the HR Department finalised the process to appoint PL2 Lecturers and the finalisation of the structure. Until such time teaching had to continue. She also stated that she communicated the decision during meetings and explained that Mrs de Klerk was requested to oversee engineering and business studied. No concerns were raised during the meeting/s or thereafter. A manager can request a subordinate to do certain duties in order to gain experience and knowledge. Mrs de Klerk did not receive payment for doing the extra work
It seems that the word ‘’acting’’ had been used loosely in this matter, that then led to the inordinate period time spent on this issue. Mrs de Klerk had not been appointed as per the acting policy and had not been paid for such. This much is clear from the evidence of Dr. Machaka . Mrs de Klerk also confirmed that she had not been paid an acting allowance.
Dr. Machaka testified that she requested Mrs de Klerk to manage/oversee the engineering department as the department had no manager due to retirement of the PL2 lecturer. She submitted that ‘teaching had to continue’ until the HR Department finalised the process to appoint PL2 Lecturers and structure was finalised.
It was also testified by Dr. Machaka that she had communicated the decision during meetings and explained that Mrs de Klerk was requested to oversee engineering and business studied and that no concerns were raised during the meeting/s or thereafter. During cross-examination Dr. Machaka re-iterated that Mrs de Klerk was not appointed to act but delegated to perform the duties of a HOD as she was also the only senior lecturer (P2). She also reiterated (following more questions around this issue) that as Campus Manager it was her duty to ensure the smooth running of the campus and thuds asked a senior lecturer to oversee the engineering department.
It was put to Dr. Machaka if she had relayed the decision that Mrs de Klerk was ‘’to act’’. In response Dr Machaka repeated her evidence that she did do so during meetings and had explained her reasons for doing so. She reiterated that no objections/questions were raised and that she had not ‘’received any negative response’’. This issue was not taken any further.
Dr Machaka however, was then shown the petition ( Bundle A pages 21 and 22) and stated that she had never seen it and/or never received it.
It must be stated that there is no proof in the bundle nor did any witness testify thereto, as to when this petition was served and/or sent and/or handed over, nor to whom this handed over. The petition itself is not dated (page 21). Page 22 thereof contains signatures and shows the date of 6 October 2021. This page contains 22 names but only the signatures of 13 employees. It seems from the outcome of the hearing that such proof was also not provided during the hearing (page 30 Bundle B paragraph 47).
It seems probable that this petition might have been created later in order to support a version namely that the applicant as shop steward (which he was) pursued this ‘concern’’ during meetings. It seems probable from the line of questioning of Dr Machaka that the applicant’s dissatisfaction with Mrs de Klerk fulfilling the duties of HOD probably might not only stem not from his constituents as he wanted to portray but also from his own perspective that he should have been given the opportunity to ‘’act’’. It was put to Dr Machaka that ‘’PL1 lecturers can jump’’ and that ‘’other senior lecturers were prejudiced’’. It was again explained that a PL2 (de Klerk) can assist as HOD and that PL1 (applicant) cannot do so.
If the applicant indeed pursued the issue on behalf of constituents and/or on his own behalf it is clear that two meetings were held (15 November 2021 and 25 March 2022) during which the applicant was present. Mrs de Klerk made reports thereafter respectively on 29 November 2021 (Bundle A pages 115 & 116) and 25 March 2022 (Bundle A page 117) wherein she in detail (while her memory was still fresh) relayed the conduct of the applicant during the meetings. She repeated this during evidence in chief and stuck to her proverbial guns during cross-examination.
The evidence of Mrs de Klerk regarding these incidents were not destroyed, shown to be improbable or not being the truth.
The version of the applicant regarding the meeting on 29 November 2021 was to portray himself as respectful and only acting on behalf of his constituents. His witness (Nchoe) however, stated that he ‘has a high voice’’ that might be perceived as ‘’disrespectful’. Another witness (Martin) who did not attend the meetings in question, made a sweeping statement that the applicant is ’very quiet and very respectful’ and during meetings ‘never raise his voice and never gets angry’.
It is clear from the applicant’s own evidence that he told Mrs de Klerk, when she said to him that he was humiliating her, ‘you humiliate yourself’. Why would Mrs de Klerk say this to the applicant if not in response to his disrespectful actions and/or words? A person can also be disrespectful without raising his/her voice by words uttered and/or an attitude shown. The evidence of Mrs de Klerk that the meeting on 25 March 2022 attended the Business studies meeting and not their own Engineering meeting, was not disputed.
Issue was taken with the period from the incidents occurred until the appeal was finalised.
The meetings that were the subject of the charges were held on 15 November 2021 and 25 March 2022.
Dr Machaka testified that she had requested Mrs de Klerk to write a report regarding the incident\s and after receiving such, she escalated it to the Principal for investigation as they did not have the capacity to do so. The Principal then escalated the issue to Labour Relations. During cross-examination on this aspect, Dr Machaka stated that she had no knowledge of the outcome of the Principal’s actions/investigation. The bundle shows that the reports were done and sent respectively on 29 November 2021 and 25 March 2022.
The chairperson Mr. Nkosi was also cross-examined regarding the time period.
It is clear (Bundle B pages 25-34) that Mr. Nkosi made his finding on 31 January 2024 as per the date on page 34 but such was only served on the applicant on 18 March 2024 (Bundle A pages 29-30).
It is clear from the findings dated and signed 31 January 2024 that it only deals with the finding of guilt and that the parties were directed to file arguments in mitigation and aggravation before 9 February 2024 ( page 34). Bundle A2 shows the verdict and date thereof and such is confirmed on page 29,Bundle A and it is shown that it was handed down on 16 March 2024. This was also confirmed by Mr. Nkosi during cross-examination. This is the document served on the applicant on 18 March 2024 (Bundle A pages 29-30). This letter informs the applicant of his right to lodge an appeal which was lodged on 26 March 2024 (Bundle A pages 97-102) and the outcome was given on 4 June 2025 ( Bundle A page 103).
The meetings held on 15 November 2021 and 25 March 2022 resulted in the reports/investigation and ultimately the charges and the hearing scheduled for 16 & 17 February 2023 (page 26 Bundle A). When Mr. Nkosi was taken to task regarding the period from 16 & 17 February 2023 until the finding/verdict respectively in January and March 2024, he stated that there were ‘’many postponements’’ that caused the respondent ‘’to be angry’’ at him. When asked if the delays were due to the applicant, Mr. Nkosi said ‘’yes’’ and explained that there were different reasons such as the applicant being ill, a change in his representatives, being late and the representative leaving the hearing to attend a meeting.
Bundle A (Pages 104 -114) show the investigation report and paragraph one shows that the investigation was conducted from 22 April 2022 to 29 April 2022. The report was signed ( page 114) on 21 May 2022 and paragraph 78 recommends the institution of a formal disciplinary hearing that was then scheduled for 16 & 17 February 2023 ( page 26 Bundle A).
Mr Nkosi contended that there was no ‘’undue delay’’ and that the applicant had not been prejudiced as he continued to be paid and that the sanction of dismissal that had been imposed following the disciplinary hearing had been changed on appeal to two months unpaid suspension.
In closing on behalf of the applicant, it was amongst others argued that ‘’the disciplinary process was procedurally defective, the sanction imposed was disproportionate and substantively unfair’’.
It was further argued that the chairperson was biased and that the initiator was investigator and witness. The applicant was also found guilty of charges ‘’materially different’’ to those initially levelled against him. There was also no consultation of the union and the incorrect disciplinary framework was used. The process was also extremely delayed, the respondent failed to prove the charges as well as the appropriateness of the sanction and its witnesses were not credible and as such there was an unfair labour practice as there was substantive and procedural unfairness.
The analysis of evidence dealt with the important issues and I do not agree with the closing statements made, as the evidence portrays a different picture. The outcome of the hearing does not reflect an application for the recusal of the chairperson based on perceived bias nor was any such contention put to him during cross-examination. I have also dealt with the issue of the charges the applicant was found guilty of which corresponds with the charges in the notification and is not ‘’materially different’’ as argued.
I have also quoted the case of Mandla Skosana (paragraph 79 supra) where the Court held that in determining fairness, the proper context must be considered and stated that there exists no separate requirement of procedural fairness in an alleged unfair labour practice. The Court found that when determining fairness in an unfair labour practice dispute a more holistic approach based on all the evidence should be adopted.
The evidence shows that the applicant was disrespectful towards Mrs de Klerk during the meetings on 15 November 2021 and 25 March 2022 as detailed in the two charges. The evidence further shows that a hearing was held that led to a finding of guilty and a sanction of dismissal that was overturned on appeal and changed to two months unpaid suspension.
It was argued in closing that the period of delay was not explained and that no reasons were provided for the sanction. Having perused the decision of Mr Nkosi made regarding the sanction he imposed, he provided his motivation for such. The disagreement of the representative with his reasoning does not equate to ‘’not giving reasons’’.
Mr Nkosi explained the time period is so far as he was involved as chairperson which explanation I find reasonable and probable. There is no evidence to show that he dragged his feet or in any way delayed the process in order to frustrate and/or prejudice the applicant.
In Noosi v Exxaro Matla Coal (2017) ZALAC 3 (handed down on 10 January 2017) the Court also dealt with an issue regarding alleged delays. It was held that the employee could no provide evidence that he had been prejudiced by the delay.
In this case although there were delays, most of which were explained, the applicant could not provide any evidence regarding any prejudice he had suffered. I agree with the evidence of Mr Nkosi that there was no prejudice inter alia as the applicant continued fulfilling his duties and being remunerated.
In BIFAWU and another v Mutual and Federal Insurance Company Ltd (2006) BLLR 118 (LAC) the Court held that the failure to consult a union does not render a process unfair as long as the employee suffers no prejudice. The respondent invited the union to consult ( Bundle A pages 23 & 24) and the applicant’s issue with this was that he was not informed by the union nor was he consulted. There is nothing in this evidence to show any prejudice towards the applicant.
The applicant had to prove, on a preponderance of probabilities, that he was subjected to an unfair labour practice.
The evidence failed to convince that the applicant’s two (2) months suspension amounted to an unfair labour practice.