Commissioner: VEESLA SONI
Case No.: ELRC 496-24/25KZN
Date of Award: 8 NOVEMBER 2024

In the ARBITRATION between:

KHANYISILE PRISCA MPUNGOSE APPLICANT
and

DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT

Union/Applicant’s representative:   Appeared in Person

Respondent’s representative: Ms Buhle Ndlovu
Respondent Department of Education

DETAILS OF HEARING AND REPRESENTATION

1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 186 (2) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on 24 October 2024, via zoom. The matter was part heard and was finalized on 31 October 2024.
2. The Applicant, Khanyisile Prisca Mpungose, appeared in person. The Respondent was represented by Ms Buhle Ndlovu, Labour Relations Officer.

ISSUE TO BE DECIDED

3. The main issue in dispute was whether the Respondent committed an unfair labour practice, in respect of disciplinary action taken against the Applicant. The Applicant admitted the charge and only challenged the procedure of the hearing.

BACKGROUND AND SURVEY OF EVIDENCE

4. The dispute relates to an unfair labour practice wherein the Applicant was charged for misconduct in respect:

CHARGE 1: absence and repeatedly absent from work without reason and permission.

5. It was agreed that that the Applicant was appointed as a lecturer at Pashana TVET College, Vryheid Campus. This was a PL1 level.
6. The Applicant was charged for misconduct relating to absenteeism. She was handed a letter to attend a disciplinary hearing heard on 16 August 2024. The chairperson was the author of the invitation letter. There was no evidence led but the chairperson found her guilty of the charge and sanctioned her to a written warning valid for 6 months. The Applicant challenged procedure on the basis that it was not a disciplinary hearing but a fact finding session, wherein she had to present her case.
7. The Respondent’s case was that the process was followed in terms of the disciplinary code. The misconduct was less serious and corrective discipline was invoked and the sanction was fair and justified.

FACTS AGREED UPON AND COMMON CAUSE

8. It was agreed that the Applicant was absent for the period in dispute being: 7 and 12 June 2024 and 26 July 2024.
9. There was no dispute of fact in respect of the charge.
10. The only issue for determination was whether the procedure was fair.

APPLICANT’S CASE

11. The Applicant testified and confirmed that she only challenged the procedure of the hearing that led to her disciplinary action. She referred to the Pashana H R Staff Policy, revised in July 2016, clause 12.2.4: which stated that a supervisor wishing to institute disciplinary action against an employee must do so in writing and issue a formal letter with the right to respond, not less than 7 days. If a decision was made to proceed with disciplinary action, a charge sheet must be issued with the date of the hearing.
12. She stated that Disciplinary Action Inception Form, dated 7 August 2024, had to be completed within 7 days of the offence and handed to an accused employee. This was not handed to her and she only became aware of it, at the time of the arbitration. She argued that the form should have been issued within seven days of each offence, but none was issued. On 7 August 2024 she received the invitation letter, which was written and signed by the campus manager, and not her supervisor. She believed the disciplinary action inception form was not prepared on the date of the meeting, as it was never handed to her.
13. The Applicant referred to Resolution 1 of 2003, and in particular clause 5.3 which related to the procedure in respect of written warnings. It required that the manager must issue the warning to the employee who was required to sign receipt. If the employee declined to sign, then it had to be issued in the presence of another who would confirm the warning was handed. Her understanding of clause 5.3 preordained that only one copy of the warning can be issued. She elucidated in this instance there was more than one copy of the written warning, which was in violation of the said clause. The clause also required that the written warning be filed in the employee’s personnel file. In this case the warning was displayed in the boardroom. This was also in violation of the clause as it should have been kept in her personnel file and not displayed.

RESPONDENT’S CASE

14. Thulani Bhopela: was employed by the Department of Higher Education and Training and was the campus manager. His duties were to oversee the operations on the campus, which included academic, human resource and any delegated matters. He handled discipline and grievances for the last 15 years. He said he was guided by PSCBC Resolution 1 of 2003.
15. He was informed of the matter by Mr Mathonsi, the senior lecturer. It was reported that the working hours were not fulfilled by the Applicant. The Disciplinary Action Inception Form was completed by Mathonsi and sent to him, on 7 August 2024. The form was not intended for the Applicant and did not amount to a disciplinary notice. He investigated the matter and found that the allegations of absence without reason, was evident.
16. He relied on clause 5 of PSCBC Resolution 1 of 2003 which related to less serious offences. Clause 6 was for serious misconduct. Clause 5 was initiated which required a meeting with the employee, would then plea and a sanction would be issued. As such, he wrote an invitation letter to the Applicant advising her of all the allegations and afforded her an opportunity to present her case. Two copies were issued, one for the Applicant and one for filing. The Applicant did not acknowledge the letter as she contested the fourth allegation. He explained to her that the form was merely inviting her for a meeting and not that she was found guilty. The form was dated 7 August 2024 and the meeting was on 16 August 2024.
17. The meeting was held with the Applicant on 16 August 2024 with the intention to mitigate the concerns. He chaired the meeting and the Applicant appeared in person. Mathonsi was the initiator. The Applicant pleaded guilty for the three counts of misconduct and not guilty for charge 4, which was not part of the matter.
18. Bhopela enquired from the Applicant what she considered to be a fair sanction. They both agreed on a written warning, valid for six months. The Applicant thanked him for the manner in which the hearing was conducted and further stated she was satisfied with the sanction, which she declared was fair. The hearing was not formal as it related to a less serious offence.
19. Bhopela said he was unaware of the matter until it was referred to him by Mathonsi. He was not biased as he did not work with her. The written warning was prepared in duplicate, one for the Applicant and one for filing. The warning was sent with the HR clerk to hand to the Applicant. A copy was filed in her personnel file. He was unaware of the warning being displayed and confirmed that only two copies were printed.

ANALYSIS OF EVIDENCE

20. The matter was referred as an unfair Labour Practice: In terms of section 186(2) (b) of the Labour Relations Act: S186 (2) (b) of the Labour Relations Act provides: ‘Unfair Labour Practice’ means any unfair act or omission that arises between an Employer and Employee involving, (b) the unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee’.
21. The Applicant herein therefore bore the onus to establish that the Respondent committed an unfair labour practice. In this matter disciplinary action had been taken. The Applicant was charged and pleaded guilty to three charges, as listed above. The Applicant accepted the finding of guilt but challenged the procedure of the hearing, which she maintained was unfair.
22. In making an assessment on fairness, I am obliged to consider that the overall test for fairness has been confirmed in Gcaba v Minister for Safety & Security & others (2010) 31 ILJ 296 (CC). A Commissioner is required to have regard to the conspectus of the material presented, including but not limited to the nature and seriousness of the misconduct, the importance of the rule, the extent of similarity between the employee’s misconduct and other incidents of a similar nature, the consistent application of the rule, the harm caused by the Employee’s conduct, his knowledge of and training about the rule, the reason the Employer imposed a sanction of dismissal the basis of the challenge, the Employee’s disciplinary record and relevant mitigating factors.
23. The Applicant referred to the Pashana H R Staff Policy. In terms of clause 12.2.4: a supervisor wishing to institute disciplinary action against and employee must do so in writing and issue a formal letter with the right to respond, not less than 7 days. If a decision was made to proceed with disciplinary action, a charge sheet must be issued with the date of the hearing. The Applicant claimed that she was not issued with such a letter and not afforded time to respond. She argued that the Disciplinary Action Inception Form was not prepared on the date of the meeting, as it was never handed to her.
24. Bhopela who was the campus manager appeared honest, forthright and transparent. I have noted that he had 15 years’ experience in disciplinary matters and was mindful of the proper process and procedure. He was informed of the matter by Mathonsi, a senior lecturer and the Applicant’s interim supervisor. Mathonsi reported that the Applicant did not fulfill her working hours. Bhopela explained that the Disciplinary Action Inception Form was completed by Mathonsi and sent to him, on 7 August 2024. I am thus satisfied that the form was indeed completed timeously.
25. Bhopela relied on clause 5 of PSCBC Resolution 1 of 2003 which related to less serious offences and clause 6 was for serious misconduct. In compliance with clause 5, Bhopela wrote an invitation letter to the Applicant advising her of all the allegations and afforded her opportunity to present her case. He had authority, as the campus manager, to initiate the process and intervened as an impartial person. He said he managed the process as there were issues with the Applicant and Mathonsi.
26. Bhopela explained, with conviction, that only two copies were issued, one for the Applicant and one for filing. It was not signed by Applicant hence he explained to her that the form was only an invitation for a meeting. The form was dated 7 August 2024 and the meeting was held on 16 August 2024, affording her sufficient time to prepare.
27. Resolution 1 of 2003, clause 5.3: related to the procedure in respect of written warnings. In terms of this clause the manager must issue the warning to the employee who was required to sign receipt. The Applicant claimed that the Respondent violated this procedure as more than one warning was made available. Bhopela testified that only two copies of the warnings were issued, one for the Applicant to sign and one for his records. He had no knowledge of the warning being displayed and he remained consistent under cross examination. I accept that there was no ulterior motive or malice to have the warning displayed.
28. I must pause to note that Bhopela invoked an informal approach as the charges were less serious. At the meeting on 16 August 2024, he and the Applicant agreed on a written warning, valid for six months. The Applicant, on the said date, was grateful and thankful. She did not dispute this evidence of Bhopela. At no stage she complained about the process nor did she lodge a grievance. I am satisfied that the approach adopted was fair and unbiased as Bhopela was unaware of the matter until it was referred to him by Mathonsi.
29. I turn to Masstores (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 2007/2020) [2023] ZALCJHB 254: it was held that the standard for a disciplinary charge sheet (preferably “allegations”) is not the same as for one in a criminal case. Neither the Labour Relations Act nor the Code of Good Practice impose formal procedural requirements and what is required is only for the employee to know what the allegations are and to be afforded an opportunity to prepare a response. In this case I am satisfied that the Applicant was informed of the charges, with sufficient clarity and afforded time to prepare, as the hearing was scheduled for 16 August 2024.
30. With regard to procedural fairness I want to refer to the decision in Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 27 ILJ 1644 (LC) wherein the court said that the conception of procedural fairness incorporated into the LRA is one that requires an investigation into any alleged misconduct by the employer, an opportunity by the employee against whom any allegation of misconduct is made to respond, after a reasonable period, with the assistance of a representative, a decision by the employer, and notice of that decision.
31. I accept that an investigation had been done. The Applicant was explained her rights. The Applicant was afforded a right to a hearing before an independent chairperson, her rights were read to her at the hearing, and she never raised any objection or indicated that her rights were compromised. In light of the above, I can make no finding of procedural unfairness and the application is dismissed. Award
    I make the following award:
32. The application of Khanyisile Prisca Mpungose is dismissed

ELRC Commissioner : VEESLA SONI
Date : 8 NOVEMBER 2024