Case Number: ELRC 892-24/25EC
Commissioner: BONGANI MTATI
Date of Award: 12 SEPTEMBER 2025

In the ARBITRATION between

ANDILE FALTEIN
( Applicant)

and

DEPARTMENT OF HIGHER EDUCATION AND TRAINING- KSD TVET COLLEGE
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION
[1] This is the award in the arbitration between Andile Faltein the Applicant, and Department of Higher Education and Training- KSD TVET College, the Respondent. The arbitration was held under the auspices of the ELRC in terms of section 191(5)(a) of the Labour Relations Act, 1995 as amended (“the Act”) and this award is issued in terms of section 138 (7) of the Act.
[2] The arbitration hearing took place at Holiday Inn hotel, Savoy Hotel, Zimbane Lodge and Mthatha Mayfair hotel on the 11 February 2025, 24 and 25 April, 28 and 29 May, 16 and 17 July, and 14 August 2025, the Applicant was present and initially represented himself and later represented by Mr S. Kahla, the applicant’s colleague.
[3] The Respondent was represented by Mr Nkosi a labour relations deputy director official of the respondent.
[4] The proceedings were manually and digitally recorded.
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[5] PRELIMINARIES
Application to introduce new documents by the applicant.
[6] The applicant applied for introducing new document during the fourth witness’s cross examination testimony as a document for his absolution in the hearing held on the 23 and 24 June 2022, appointment letters for Mr Mathe and Mr Oliphant who were chairpersons of the hearing, but could not get them as he applied in February 2025.
[7] The respondent opposed introduction of new document at cross examination of the fourth witness as other witnesses were not given a chance to testify on the documents applied for by the applicant and will be prejudiced by introduction of such documents as would not have consulted his for witnesses for the new documents. He further submitted that the applicant signed the pre-arbitration minutes where he indicated that he had no bundle and finally asked during the start of the arbitration and stated that he had no bundle of documents to introduce in the arbitration.
RULING
[8] Considering the submissions of both parties for the introduction of new document during cross examination of the fourth witness, l find that the respondent would be highly prejudiced as four witnesses already testified, applicant stated that he had no bundle of documents to submit in the pre-arbitration minute including during the start of the arbitration, so l refused the application.
Application for the recusal of the panellist by the applicant.
[9] The applicant applied for the recusal of myself based on refusing applicant to introduce bundle of documents and viewed that l was not to be objective in the case as have submitted their application before respondent closes its case, so apply to recuse myself. He further submitted that l was not sure of the documents he was not having at the start of the case, so applied to recuse myself in this case.
[10] The respondent opposed recusing myself in this case as l ruled in favour of the applicant for condonation of this case, as applicant stated that he had no bundle of documents in the pre-arbitration minutes, and was in possession of the documents he wanted to introduce since 2022, so objected on the introduction of new document on the cross examination of the fourth witness as he viewed as being ambushed and l
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have been fair to the proceedings as was applying the rules equally to both parties and would be detrimental even to ELRC to recuse myself as the case was almost to the end of their case. So based on those reasons was opposing my recusal in the case
RULING
[11] My ruling was that l dismiss application to recuse myself based on viewing myself fair to both parties as l have given both parties fair hearing based on rules and avoiding further delays and costs to this case. I did not find reasons and justification for my recusal in the case except for the applicant to deal with the case in his own partial stand. So l proceeded with arbitrating this case up to finality.
Application for the postponement of the case on 24 July 2025
[12] The applicant submitted application for postponement of this case as was held on virtual, which they stated that they were not consulted for virtual hearing in order to give their consent and are against the online hearing as the matter proceeded on face to face. They further submitted that they were not sure who was with Mr Nkosi to assist him to cross examine the applicant on virtual haring. They further stated that the arbitration was supposed to have been held at the college and not at Zimbane Lodge as was not safe to hold arbitration and was closed by the principal to host their activities at Zimbane lodge.
[13] The respondent submitted that virtual hearing was an option to continue with the case, which he was informed that all parties consented to virtual hearing as he found that all flight were fully booked to come to Mthatha and opted to virtual hearing. He further stated that he informed the college of the date of the case to make booking for him early, but failed to book on time, so was beyond his control not to attend the case on face to face.
RULING
[14] l granted application to postpone the case considering that applicant was not consulted for virtual hearing to give his consent as was done on the previous day, which l viewed very late, safety reason stated by the applicant and their worry on respondent’s representative being assisted in cross examining the applicant.

ISSUE TO BE DECIDED
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[15] I am to determine whether the Applicant’s dismissal was procedurally and substantively fair. If l find that the Applicant’s dismissal was unfair, l am further required to determine the appropriate relief.
BACKGROUND TO THE DISPUTE
[16] It was common cause that the Applicant worked for the Respondent as a lecturer of the respondent since 2 May 2012 and was senior chief at human resource prior his dismissal.
[17] The Applicant was dismissed on 14 May 2024 and was earning R24709-88 a month at the time of his dismissal.
[18] The Respondent is Department of Higher Education and Training KSD Tvet College, an educational institution dealing with teaching, learning and providing skills to the students.
[19] The Applicant challenged procedural and substantive fairness of his dismissal.
[20] The Applicant is seeking retrospective reinstatement as a relief.

SURVEY OF THE EVIDENCE AND ARGUMENT
[21] Only respondent had bundle of documents
RESPONDENT’S CASE
Witness 1 Dr Siyakudumisa Pato
[22] He testified under oath that he was the medical officer at Gateway clinic in 2021 and was currently working at Mandela hospital, Mthatha.
[23] He referred to the J88 document which he described as the medico legal document filled in by doctors for the patients, which he confirmed knowing the document as he filled in the form on the 20 August 2021 for the patient Zizipho Gantile assaulted by a stranger who injured her in the chin and fingers as noted them as bite marks.
[24] He further referred to the affidavit as signed by him to prove that he examined Zizipho Gantile with findings that Ms Gantile was seriously injured during her incident.
[25] He agreed during cross examination that J88 is a legal document which is supposed to be accurate when filling in the form as proof of injuries to the patient.
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[26] He stated during cross examination that he did not know who commissioned J88 brought to him by patient and did not notice whether commissioned or not, as he just filled in the form as his part in J88 for the patient.
[27] He confirmed during cross examination that J88 forms are filled in by nurses and put a stamp to make their job easy as doctors since they are always busy.
[28] He submitted during cross examination that J88 is filled in by many persons including himself, police and nurses, but had signed form J88 and handed it to the patient.
[29] He disputed during cross examination that J88 is fraudulent as scratched 2022 to write 2021 and not signed to acknowledge a mistake, as J88 is stamped and signed to confirm to be correct, but did not comment on Gateway clinic was not opening on Saturdays, so could not comment on what was written on J88 form, but when was filling his part J88 form was not scratched. So, concluded that J88 was valid as per his findings on the injuries sustained by the patient, Ms Gantile.
[30] He emphasised during re-examination that the patient was injured as he examined the patient Gantile.

Witness 2 Zizipho Gantile
[31] She testified under oath that she was the student registered for Human Resource course at KSD Tvet college,
[32] She referred to her affidavit and pictures identifying them as proof that she was assaulted by the applicant and sustained those injuries shown in the pictures and J88.
[33] She submitted that they were at Highness at Mthatha for a birthday party when they were to go home not getting transport to their different destinations.
[34] She stated that as they were looking for transport to their homes, they noticed Mr Jim’s car and requested him to take them to their homes and granted them hike to their destinations.
[35] She explained that Mr Jim was together with the applicant in his motor vehicle and were three ladies that entered at the back sit of the motor vehicle.
[36] She submitted that the applicant informed them that he did not know whom to choose from them and responded to say was not interested in him, but the applicant replied to say was not better off with his position and continued their arguments until she reached
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her destination at Zimbane.
[37] She stated that on her way to her home heard an open hand hitting in her face as was assaulted by the applicant, turned and defended herself, where she managed to grab the applicant down and during that fighting, the applicant bite her in the fingers and chin.
[38] She submitted that her friends called Mr Jim to intervene and indeed Mr Jim separated them taking the applicant to his motor vehicle and they left.
[39] She submitted that on the following day Mr Jim visited her to check her condition and phoned applicant to come and apologise and to take her to the doctor, but applicant failed to come and apologise nor taking her to the doctor.
[40] She submitted that she informed the applicant that she would be reporting the incident to the school and the police and the applicant responded to tell her that he would not be dismissed as he was intelligent and further even if would report to police, applicant was a law student
[41] She stated that when she went to police station to open a case was given J88 to fill it in for injuries she sustained, which she took J88 to Gateway clinic at Mthatha where she was attended with findings that she was injured in her fingers and chin as identified in the J88 form.
[42] She submitted during cross examination that she met the applicant for the first time on the day of the incident as applicant was called by Mr Jim and she further asked about the applicant from her friend who told her the name of the applicant as Mr Faltein and further confirmed knowing applicant as Mr Fals as she was referring to her affidavit and confirming affidavit and J88 form as correct.
[43] She further stated during cross examination that she brought her injuries to the doctor as two fingers, chin and forehead as she sustained injuries and did not bring her heap as was not injured by the applicant.
[44] She disputed during cross examination that she was fighting with the applicant as she was defending herself from the attack by the applicant through retaliation.
[45] She submitted that she reported to Ms Madikizela during the night and applicant was a stranger to her as she did not know him, but knew applicant on the day of the incident
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[47] She further disputed that she was adding other injuries she never sustained as she was injured on the day in question.
[48] She disputed that she did not know the applicant as she knew applicant as person who attacked and injured her on the day in question.
[49] She confirmed injury on the chin in the picture as injury she sustained on the left during the incident, but on direction in the picture could be right as is in the picture, so disputed that she was not injured by the applicant.
[50] She disputed that J88 form was defective as was not to rely to it to prove her injuries in this case.
[51] She submitted during re-examination that she was not accountable for the mistakes in the J88 form as she did not type the form, but emphasised that the J88 form content was correct to ascertain her injuries as filled in by the doctor.

Witness 3: Sandile Chamane
[52] He testified that he was appointed by the respondent to be responsible for grievances, disputes and misconduct in the department of Higher Education and Training.
[53] He referred to charge 2 as he was threatened by the applicant informing him that he must stop harassing him as he was not sleeping with his wife after his investigation to the applicant’s matter. He stated that he was phoned by the applicant at Mr Nkomozibomvu landline phone threatening him about not sleeping with witness’s wife. He stated that he felt threatened by the applicant’s call after conducting investigation on applicant’s misconduct and after various assaults and killings of investigators to the misconducts at various provinces in the department.
[54] He referred to the investigation report he made about the applicant after the incident of assaulting Ms Gantile, a student of the KSD College who was assaulted by the applicant as reported to the respondent by Ms Madikizela.
[55] He referred to the presiding officer’s report of the disciplinary hearing where the applicant was absent and his representative Mr Mhlontlo phoned the applicant unsuccessful to attend the hearing and agreed with Mr Mhlontlo to postpone the hearing to 20 February 2023, and both applicant and his representative did not attend the hearing and further never submitted any explanation for their absence. He further
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submitted that the initiator phoned the applicant on various times and the applicant not answering his phone, it rang and later went to voice mail.
[56] He stated that based on the absence of the applicant and his representative without
any submitted reason for their absence and knowing the date of the case, the initiator applied for the hearing to proceed as per the resolution 3 of 2003 of the Collective Agreement in their absence. This request was granted by the chairperson of the hearing, so the inquiry proceeded in applicant’s absence and concluded by a sanction of dismissing the applicant.
[57] He referred to the charge sheet as signed by the principal of the college that principal had powers to sign the charge sheet as acting principal did with powers vested on him and presiding officer issued the sanction of dismissal of the applicant.
[58] He explained that the applicant appealed his dismissal sanction to the Minister who also confirmed dismissal of the applicant based on his misconduct of assaulting a student.
[59] He further confirmed as correct to appointment of Mr Nkosi as the initiator during the hearing as he was assistant director of the respondent and applicant was also under the same respondent.
[60] He further stated that the sanction of dismissal was appropriate against the applicant based on seriousness of the offence where the victim was assaulted and sustained injuries. He further submitted that he was not aware of other lecturers that assaulted student not dismissed
[61] He further stated that according to his investigation, Ms Madikizela reported the incident that the applicant assaulted Ms Gantile whilst arriving in her destination for saying that she was not interested in the applicant and Ms Gantile was assaulted by the applicant and sustained injuries.
[62] He stated that he consulted Ms Gantile, Madikizela for his investigation and Mr Jim refused to co-operate with his investigation as he was present and driving the motor vehicle with the applicant and Ms Gantile and Mr Jim further intervened during the incident.
[63] He further submitted that he drafted the affidavit as was submitted to the police and doctors for injuries sustained by the applicant, so was responsible for errors made in
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the affidavit, so Gantile and the doctor were not responsible for errors in the affidavit.
[64] He stated during cross examination that the charge sheet met all the requirements of a charge sheet as was showing act of misconduct and signed by the acting principal, so disputed that the applicant did not receive the notice of set down as his representative Mr Mhlontlo attended the hearing and applicant was absent, which led to the postponement of the hearing and set another date they agreed to with Mr
Mhlontlo as applicant’s representative, so disputed that the applicant did not receive invitation to the hearing and disputed that the applicant never appointed Mr Mhlontlo as his representative as applicant was a member of NAPTOSA union for the applicant. He further submitted that the applicant was aware of his case as he appealed to the minister for his dismissal outcome of the case
[65] He disputed during cross examination that this matter was finalised on 17 August 2022 by a person that came with him from Pretoria as continued in 2023.
[66] He stated that the unsigned charge sheet by the applicant did not mean that is not valid as might have been sent by email to the applicant, so the charge sheet was valid.
[67] He explained during cross examination that he had collegial relationship with the applicant as he knew applicant as working for the respondent, union shop steward for NAPTOSA, NUPSAWU and NEHAWU where they were contacting one another for labour matters and consulted NAPTOSA as his case was attended by Mr Mhlontlo from NAPTOSA on the applicant’s behalf and being a shop steward.
[68] He explained during cross examination that he did not inquire from the alleged employee and did not make investigation not valid as the charged employee was to be charged and be informed of the charges to respond to them, so his investigation was procedural and valid
[69] He stated during cross examination that the respondent had jurisdiction to deal with applicant’s case as charges were signed by the acting principal to proceed with the case of post level one lecturer, being the applicant and officials doing the case appointed by the principal on delegated function of the respondent appointing disciplinary committee to investigate the case, as a case can be investigated by anybody appointed to do so.
[70] He submitted during cross examination that he knew Mr Nkosi as his officer reporting
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to him, but did not interfere with his work of compiling bundles, so did not know Mr Nkosi’s bundle of document for this case and had investigated his case based on the report submitted by Ms Madikizela to the Minister and DDG.
[71] He disputed during cross examination that it was wrong for Ms Madikizela to jump all college protocols and report the incident to the DDG.
[72] He confirmed during cross examination that the principal was the accounting officer and had powers to investigate and conduct disciplinary hearing as principal had
delegated powers from the head office for that function.
[73] He stated during cross examination that all disciplinary matters are under the powers of the Director General and delegates his powers to other officials of the respondent including principals of colleges as Ms Gantile’s matter was reported to the liaising officer of the college and escalated to the head office by Ms Madikizela.
[74] He disputed that the applicant was absolved by Mr Mathe from the charges as was charged, found guilty and sanctioned with dismissal on charges signed by the acting principal.
[75] He further disputed that the applicant was not charged by college as was charged by the respondent with delegated powers to the college.
[76] He admitted that Ms Gantile was absent during hearing, but his evidence was led by the initiator including documents submitted to the presiding officer that led to find the applicant guilty of the offence and dismissed.
[77] He confirmed on the issue of other lecturers charged for similar charges that were charged and not sure about their end results.
Witness 4: Ms Zolisa Madikizela
[78] She testified that she was the student liaising officer during the time she was contacted by Zizipho Gantile, a student at KSD College who informed her that the applicant assaulted her as was referring to the pictures with injuries on her body as applicant was forcing her to be his girlfriend, which she refused.
[79] She submitted that Gantile informed her that she was assaulted by the applicant and sustained injuries on her chin, fingers and next to her underwear and she inquired about her as she was responsible for student welfare in the college.
[80] She stated that she decided to report the incident to the minister’s office as matters of
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gender based violence (GBV) were not seriously dealt with at the college due to corrupt activities and had no limitation in reporting incident related to GBV and disputed that she was wrong to report the incident to the minister.
[81] She stated that Gantile was assaulted by the applicant as she consulted many people saying that Gantile was assaulted by the applicant and was to report the incident even if was done by any person.
[82] She stated during cross examination that she was a student liaising officer of KSD Mthatha campus and not of Zimbane, but was allowed to deal with all matters of KSD College in all campuses including Zimbane campus as had its own student liaising officer who was always inquiring from her about her duties and responsibilities with possible solutions.
[83] She referred during cross examination to some resolutions of meetings with the head of student services and Ms Xokwe, the Zimbane student liaising officer where they agreed to work together for all student matters in both campuses and report to each other about student incidents.
[84] She confirmed during cross examination that the KSD management was not taking serious matters of GBV as they failed to discipline employees on misconduct. She referred to the incident of a student dated by a lecturer who was a wife of a husband who reported her incident at Libode, but was dealt with by the management late and husband decided to move his wife in the campus. She further stated that when Mr Manana was dealing with the incident of the lecturer, the husband took his wife from the campus and could not proceed based on being student taken away from school.
[85] She further submitted during cross examination that she reported the incident to the minister and minister scaled it down to the Director General who contacted Mr Chamane to attend to the matter and viewed as not contradiction for Mr Chamane to get report from the DDG.
[86] She further disputed during cross examination that she targeted the applicant as she did not report the similar incidents of her friends, which she stated she was not aware and inquired about the matter of Mr Nwafori which the student was taken away by the husband, so was not protecting anyone and not against the applicant personally.
[87] She emphasised during re-examination that she was not aware of the cases of
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Siwundla and others, so would have dealt with them had she been aware.

APPLICANT’S CASE

[88] Witness: Mr Lunga Mswane
[89] He testified under oath that he was the acting principal during incident and deputy
principal responsible for corporate services, resources, ICT, marketing and infrastructure at the college and knew the applicant as former lecturer and during dismissal was working at Human resources under Mr Galada.
[90] He confirmed the college branding as having college logo and Department of Higher Education and Training logo and if there is no college logo, the matter belonged to Higher Education and Training (DHT)
[91] He testified that he charged the applicant for misconduct of assault as he was an accounting officer and further signed the charge sheet for the applicant.
[92] He stated that the applicant was charged under the Department of Higher Education and Training as all college employees are employed by the Department of Higher Education and Training which charges and pays all employees in the colleges.
[93] He submitted that as there were allegations of assault by the applicant on a student, he appointed Mr Chamane to investigate the incident where he authorised investigation and signed the investigation report, but was surprised to notice that the copy in the bundle was not signed as he was sure that he had approved and signed the investigation report.
[94] He further stated that he did not know why applicant did not sign the charge sheet as would be known by the officials that dealt with the case.
[95] He confirmed during cross examination that he had delegated powers from the Director General to sign charge sheet of the applicant as he was the acting principal of the college.
[96] He disputed during cross examination that charge sheets are invalid if there was no college logo, and further stated that charges are valid even if appear on DHET letter head only.
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[97] He further confirmed during cross examination that the sanction of dismissal was appropriate against the applicant as the matter was very serious related to gender based violence.
[98] He further stated that he was not aware of other cases that were not dealt with for assault in the college as was referring to the cases of Mr Mgetyana and Mr Zitha, where even stated was not in authority during their occurrence.
[99] He further submitted that Ms Gantile was correct to open a case against the applicant, reported her case to Ms Madikizela and Ms Madikizela escalated the incident to the minister.
Witness 2: Milfred Mlamli Mcetywa
[100] He testified that he was the campus manager of Mngazi campus of the respondent since 2009.
[101] He referred to the charge sheet as done by the respondent, signed by Mr Mswane, acting principal and not signed by the applicant and not witnessed to have received the charges from the respondent, so meant that this case should not proceeded to arbitration as applicant did not received charges against him.
[102] He stated that charges should have had two logos being of the college and DHET, but only DHT logo appears in the charges, so viewed it formal as it had the departmental logo.
[103] He submitted that as applicant was not supposed to have been charged by the department, as DHET could only advise on charges, as applicant was supposed to have been charged by the college as applicant was at post level one, which is done by the college and not by DHET, so acting principal lacked jurisdiction to signed charges that were on the DHET letter head, as matter belonged to DHT
[104] He further stated that the investigation report and charge sheet were supposed to have been approved by the national official and not by the principal as investigation was done at national level, so even charge sheet was supposed to have been signed by the national official.
[105] He submitted that some cases at the college were not dealt with due to corruption which led to the current principal removing all prior cases from the roll to start with a new slate and did not know why applicant’s case not removed from the roll as per the
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instruction of the current principal.
[106] He referred to some lecturers who were not charged like Mr Nwafori, Mthethwa, Khamasa, Ms Benila, Mr Nompandana, Mr Hanise and Mr Mgetyane and before the arrival of the new principal at the college never heard of any person charged for their misconducts.
[107] He testified during cross examination that he was not an expert in labour law, but has
labour relations course under humane resources and had been represented by the applicant in his case at the college. He was charged by the director general at national office.
[108] He confirmed during cross examination that he referred to cases of employees that were not attended to, but disputed that Mr Nompandana’s case was not finalised, as was only Ms Benila’s case that was never done by the college and was not aware that Mr Nwafira’s case was dealt with and further confirmed that Mr Hanise’s case was dealt with by the college.
[109] He further confirmed that the applicant’s charges were signed by the principal of the college, but incorrect to be on the letter head of the DHET logo alone, as he viewed should have been on letter head with both college and DHET logos, so viewe charge sheet invalid to be signed by the principal of the college as charge sheet should have been signed by the DHET official and not signed by the principal.
[110] He further confirmed during cross examination that the minister has powers to charge employees as delegated director general and principals of colleges and confirm chairperson of the inquiry decisions.
[111] He further admitted during cross examination that if the applicant was forcing himself on Gantile, his conduct was rape.
[112] He further stated that he was not sure of the investigations to be done by whom at different levels of the respondent, but was sure of everything starts locally and not nationally, so Ms Madikizela was wrong to escalate this matter to the minister and not reporting it to the college.
[113] He further confirmed that the applicant was employed by the DHET together with Mr Mswane as acting principal and had powers to charge employees.
[114] He admitted that Mr Chamane conducted the investigation of the allegations against
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the applicant as prescribed by schedule 8 of the Labour Relations Act.
Witness 3: Andile Faltein
[115] He testified that he was the lecturer of the respondent for thirteen years and prior to his dismissal he was senior Chief Officer at Human Resource’s section.
[116] He stated that he was the office bearer of NAPSAWU union up to provincial level and submitted that in terms of schedule 8 of the LRA when charging a union leader the employer has to consult and engage a union prior instituting charges, which the
respondent failed to do it to him as was leader of NAPSAWU union and his union was surprised with the dismissal without being consulted and engaged by the employer.
[117] He referred to the charge sheet where he stated that it had only one logo being national one as there was no KSD logo and not signed by him to acknowledge receipt of the charge sheet with electronic signature by the principal and inquiries by Mr Nkomozibomvu, so concluded that the charge sheet was fraud as principal was not authorised to sign a national department document and Mr Nkomozibomvu being inquires, as there was no KSD logo in the charge sheet.
[118] He also referred to the investigation report as fraud as Mr Chamane reduced himself as Labour Relations Officer and not Labour Relations Director and further report prepared at national office and not at KSD, where he questioned compilation of the investigation report as never happened for post level one lecturer.
[119] He submitted that there was no relationship between the charges laid against him and the investigation report as had been charged with three charges and investigation report recommended one charge of assault against him and not signed to approve, disapprove or amend, which he viewed as procedural defect with fabrication by Mr Chamane and not delegated by the Minister, Director General and the principal.
[120] He submitted that Mr Mswane being the acting principal can never recommend charges and disciplinary proceedings as he had nothing to do with them.
[121] He stated that he was absolved from the charges of assaulting Ms Gantile on 24 and 25 June 2022 and never heard about other charges against himself as witnessed by absence of his signature in the current charges of the same Ms Gantile assault.
[122] He stated that Mr Oliphant being the presiding officer in the second hearing was
[123] incompetent and unable to identify defects in the charge sheet of not being signed and
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served with proof to himself as charged employee and failure to notice different dates of the incident.
[124] He submitted that on the 6 August 2021 he was at his home with his family and on 8 August 2021 on Sunday was at church, so viewed dates of the incident as fabricated to charge him as was not in favour of the departmental officials who intended to silence him and Ms Gantile alleged to have been assaulted on the 6 and 8 of August 2021, so
viewed as fabrication as Ms Gantile not sure of her assault.
[125] He referred to the pictures that were shown as alleged injuries of Ms Gantile where he stated that he saw another lady in the pictures who was not Ms Gantile that testified in this case with tomato sauce in her hands as there was no wound in her hands and a scar in her chin to indicate marks of injuries.
[126] He referred to J 88 form used to identify injuries sustained by a patient where he stated that J88 was invalid as had scratched case number, police station, investigating officer, date and not signed to acknowledge scratching of some information, the stamp tempered with as date scratched 2022 for 2021. The fingers and hand injured identified by the doctor as not the same hand and fingers shown by Ms Gantile when testifying in this arbitration.
[127] He stated that in the affidavit of the J88 Ms Gantile stated that she was assaulted by a stranger and to Mr Nkomozibomvu Gantile was assaulted by Mr Fals and the doctor saw Ms Gantile on the 20 August 2021 and stamped 17 March 2022, so viewed as fabrication against himself.
[128] He submitted that the chairperson of the hearing being Mr Oliphant relied on documentary evidence and Mr Nkomozibombo as Ms Gantile was absent in the hearing.
[129] He disputed that he threatened Mr Chamane by phoning him to say he must stop following him as had never slept with his wife and further submitted that he viewed as not a threat to say that even if he did not phone Mr Chamane as had his own cell phone to make calls and not making calls to Mr Nkomozimomvu landline. So totally denied that he had phoned Mr Chamane and threatened him.
[130] He submitted that chairperson was hand picket and paid to dismiss him as was
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appointed by Mr Chamane and was of the same post level with Mr Nkosi who was an initiator in the hearing, so contravened resolution 3 of 2003 as chairperson of the hearing has to be above the level of the initiator.
[131] He submitted that he contributed to the development of the college as he contributed to the level of communication section and was a union leader that participated in drafting Employment Equity Act in the college.
[132] He confirmed during cross examination that he was an office bearer of NAPSAWU and prior was shop steward of NEHAWU and representing employees in cases, so was aware of the rules of evidence, but heard in this arbitration that he had to put his version to witnesses during cross examination, so had to follow the instruction of the commissioner. He further stated that he was not aware that a version not put to the witnesses cannot be considered when testifying during his testimony and during arguments.
[133] He stated during cross examination that he was a member of NAPTOSA and not shop steward, so the respondent should have not consulted NAPTOSA for engagement as he was an office bearer of NAPSAWU even if NAPTOSA once represented him and had left NEHAWU, although NEHAWU was deducting subscription from him up to his dismissal, so was member of NAPTOSA and NAPSAWU during his dismissal.
[134] He confirmed during cross examination that they called Mr Mswane to testify in this case as he signed the charges against him, but did not put to Mr Mswane that his signature was electronic signature and had no authority to sign charges in a national department letter head and viewed charges defective and fraud.
[135] He confirmed during cross examination that he was employed by the Department of Higher Education and Training at KSD Tvet College Mthatha and the delegation of authority prohibits national department to charge post level one lecturer, as had only happened to him and further disputed Mr Chamane and Mr Mswane that the principal is permitted to sign a charge sheet of the national department as was supposed to have been charged by his supervisor. He further disputed that the charge sheet was an official document with no signatures of all persons to sign it and not for the college of KSD, but of national department letter head. He further disputed Mr Chamane, Mr Mswane and Mr Mcetywa that the charge sheet was an official document.
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[136] He further submitted that the charges were not clear to him as the alleged assault was not known according to J88 and he never threatened anyone
[137] He emphasised during cross examination that according to J88 Gantile did not know who assaulted her and he also never assaulted her and was responding to the pictures that was shown to him that it was tomato sauce that was in the hands of the picture and not blood.
[138] He further admitted a version to his allegations that Mr Chamane, Doctor, Gantile and Madikizela were not paid to testify in the hearing and arbitration.
[139] He stated that he saw the date of the incident as 6 August 2021 in the charge sheet, but also stated incident occurred on the 8 August 2021 according to Mr Chamane which was Sunday, so confused when the alleged incident did occur.
[140] He disputed the presiding officer’s report and J88 report during cross examination viewing them as Mr Chamane and Mr Nkosi’s reports as made based on their influence, so concluded that they were also authors of both reports.
[141] He further disputed that Gantile testified that she was assaulted by him as she stated was assaulted by an unknown person in the J88 form.
[142] He confirmed during cross examination that the incident took place on the 6 August 2025 as was referred to the charge sheet, investigation report and Gantile’s affidavit stating the date of the incident was the 6 August 2021, but referred to employer’s closing arguments and Mr Chamane’s investigation report as the incident occurred on the 8 August 2021, on the sanction stated incident occurred on 8 August on a Sunday which he concluded as fabricated dates.
[143] He testified during cross examination that Mr Nkosi and Mr Chamane wanted him to be dismissed as they bought people to testify about him, prepared charge sheet and J88 against him.
[144] He further stated during cross examination that Ms Madikizela’s affidavit was invalid as was not initialled.
[145] He further referred to Dr Pato as bogus doctor as he believed a qualified doctor could not testify in hearing, bring fraudulent information in J88 and lie at the cases.

ANALYSIS OF EVIDENCE AND ARGUMENT
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[146] In terms of section 185 of the Labour Relations Act, 1995 as amended (“the Act / the LRA”) every employee has the right not to be unfairly dismissed. Section 192 of the LRA provides that the employee carries the onus of proving the existence of a dismissal, whilst the employer has to prove that dismissal was fair.
[147] In the present case, it was common cause that the Applicant was dismissed. He challenged the procedural and substantive fairness of his dismissal and therefore the
onus rests on the Respondent to prove the fairness of the dismissal of the Applicant on a balance of probabilities and start leading evidence in this arbitration.
[148] In this case the Applicant was charged and dismissed for assaulting Ms Gantile and threatening Mr Chamane, so was charged, found guilty and dismissed for misconduct by the respondent.
[149] Considering procedural fairness, the applicant claims that he was not served with notice to attend disciplinary inquiry, not supposed to have been charged on the Department of Higher Education and Training’s letter head, investigation report not signed, union not consulted and engaged as union office bearer and not attended the hearing. In the case of Avril Elizabeth Home for Mentally Handicapped v CCMA and Others [2006] 27 IJL (LC) the court held that the employer was merely required to conduct an investigation, give an employee an opportunity to prepare to respond to the allegations after a reasonable period and thereafter to take decision and give an employee notice thereof. In this case l find that the employee was invited into the hearing and his NAPTOSA representative attended the hearing, but applicant failed to attend and the inquiry was postponed for another date they agreed with and further applicant failed to attend together with the union representative Mr Mhlontlo. Many calls were made to advise them to attend the hearing, but this was in vein, so the inquiry took place in the applicant’s absence. I view invitation was sent to the applicant and deliberately not attended the case on two occasions as testified by Mr Chamane and corroborated by the minutes of the hearing and applicant disputed that NAPTOSA was sent by him to attend the hearing, but not disputing that Mr Mhlontlo attended the hearing So I conclude that the applicant was invited to the hearing in time, postponed for another date as applicant was absent and decided not to attend it for the second time where he disregarded calls made to him.
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[150] I reject evidence of the applicant that he was not invited and not aware of the hearing based on NAPTOSA attended hearing on his behalf as testified by Mr Chamane and corroborated by the minutes of the hearing. The applicant further confirmed that he was the member of NAPTOSA union.
[151] Considering the validity of the charge sheet, I find it proper, clear and in the correct document as testified by Mr Chamane that the charge sheet were on the correct letter head of the employer that delegated powers to colleges and corroborated by Mr Mswane as had further signed the charge sheet and declared as an official document, Mr Mcetywa who declared charge sheet as an official document. Considering charge sheet not signed by the applicant, l find that the applicant opted not to acknowledge receipt of the charge sheet and was not signed, but informed NAPTOSA to attend his hearing, as Mr Mhlontlo attended the inquiry on applicant’s behalf and made arrangements to postpone the first hearing on behalf of the applicant, so reject evidence that Mr Mhlontlo was not mandated by the applicant and his union NAPTOSA as disputed by the applicant..
[152] Considering informing the union before charging the applicant as was office bearer of NAPSAWU and member of NEHAWU, l find that NAPSAWU was not informed about charges against the applicant as there was no evidence led that indeed these unions were consulted and engaged before applicant being charged as testified by the applicant. I further find that the respondent was aware of the applicant being office bearer of NAPSAWU as testified by the applicant that he was fully involved in union activities for NAPSAWU with the respondent and corroborated by Mr Chamane that he was working with the applicant on labour matters in the department and was not disputed by the respondent. According to Schedule 8 item 4 (2) of the LRA discipline against a trade union representative or an employee who is an office bearer or official of a trade union should not be instituted without first informing and consulting the trade union. So in this case there was absolutely no evidence led that applicant’s unions were consulted before instituting misconduct charges against the applicant.
[153] I reject evidence that NAPTOSA was consulted by the respondent before charging the applicant, as Mr Chamane testified during examination in chief that they might have sent notice to attend hearing by email without stating that they further consulted
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and engaged the union about the alleged misconduct against the applicant and during cross examination indicated to have consulted NAPTOSA, which the applicant was not a shop steward to and disregarded unions he was working with the applicant as office bearer being NAPSAWU. So, as there was no evidence led pertaining consultation and engagement by the respondent to NAPSAWU, l conclude that NAPSAWU was never consulted by the respondent prior to charging the applicant.
[154] Considering substantive fairness on testimonies of the parties, l find that the Applicant did breach the rule by assaulting Ms Gantile who sustained injuries as testified by Ms Gantile that was injured in fingers and chin that was corroborated by Mr Chamane who investigated the incident and made finding that Ms Gantile was assaulted by the applicant, Dr Pato who examined Ms Gantile and confirmed injuries in his testimony, Ms Madikizela who received the incident report and escalated it to the minister and director general for their attention and pictures that showed injuries sustained during the incident.
[155] I reject evidence of the applicant that he disputed that he assaulted Ms Gantile as his evidence is not corroborated and further that what appeared in the pictures was tomato sauce as his evidence was not corroborated and further failed to put to Gantile witness that it was tomato sauce that was shown in the pictures.
[156] Considering threatening of Mr Chamane by the applicant, l find that the applicant did not breach the rule as he disputed threatening Mr Chamane and Mr Chamane had no corroborated evidence that indeed was the applicant who phoned him to say must stop following him as he never slept with his wife. I reject evidence that it was the applicant who phoned Mr Chamane using Mr Nkomozibomvu’s landline as applicant disputed that he had ever used Mr Nkomozibomvu landline as has never ever used it before as he had his own cell phone to make calls. Furthermore Mr Nkomozibomvu never came to the arbitration to confirm or deny that on the day in question had granted applicant permission to phone in his office or not.
[157] Considering inconsistency, l find that the respondent was not aware of Mr Zitha and Mr Mgetyana’s cases of assault as testified by Mr Mswane and corroborated by Mr Chamane and Ms Madikizela. I further find that other employees mentioned by the applicant were of assault, but for intimate relationships with students and assisting
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students in copying of examinations, which some were attended and not completed and other one the student was removed from the college by the husband. So, l conclude that the respondent was consistent in charging and sanctioning employees on misconduct.as attended to cases that had knowledge of as testified by Mr Mswane and Ms Madikizela. In the case of Early Bird Farms (Pty) Ltd v Mlambo [1997] 5BLLR 541 (LAC) the court held that like cases should be treated alike.
[158] Considering all the above, l find that the sanction of dismissal by the Respondent to the Applicant appropriate and fair, as confirmed by the court in the case of Vodacom (Pty) Ltd v Byrne NO and Others (2012) 33 IJL (LC), the Court held that the determination of fairness of dismissal required a Commissioner to form value judgment by having regard to the interest of both parties to achieve a balance and equitable assessment of the fairness of the sanction.
[159] I therefore, find from the above evidence that the respondent’s evidence outweighs evidence of the applicant and further Respondent has successfully discharged onus on a balance of probabilities to prove that the dismissal was partially procedurally fair and substantively fair.
[160] Considering the remedy as in terms of section 193 of the LRA on failure of the respondent to consult and engage the union NAPSAWU and NEHAWU prior to instituting charges against the applicant, l find that the applicant must be compensated by the respondent for two months of his gross salary prior to dismissal being R49 419-76.
[161] The amount in paragraph 158 above in made up of the salary the applicant was earning prior dismissal being R24709-88 per month multiplied by 2 months totalling to R49 419-76.
AWARD
[162] The Applicant Andile Faltein’s dismissal by the Department of Higher Education and Training was partly procedurally unfair and substantively fair.
[163] The applicant’s application for unfair dismissal is partially granted for procedural unfairness and refused for substantive fairness, so applicant remains dismissed.
[164] The respondent is ordered to pay applicant Andile Faltein an amount of R49 419-76 (Forty Nine Thousand Four Hundred and Nineteen Rand Seventy Six Cents) on or
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before 30 October 2025 for failure to consult union prior to instituting charge against the applicant.

ELRC COMMISSIONER
Bongani Mtati