IN THE ELRC ARBITRATION
BETWEEN:
SM MAHLANGU “the Applicant”
and
DEPARTMENT OF HIGHER EDUCATION AND TRAINING “the Respondent”
ARBITRATION AWARD
Last date of arbitration: 27 January 2023
Final closing arguments submitted in writing on: 28 February 2023
Date of award: 18 April 2023 (Extension granted)
COEN HAVENGA
ELRC Arbitrator
Details of hearing and representation
1. This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was held over several days at the premises of the Department of Higher Education and Training in Pretoria. The last day of the hearing was on 27 January 2023. The parties submitted written closing arguments on 28 February 2023. The Council granted extension for submission of the award due to the volume of evidence presented during the arbitration hearing.
2. The Applicant is Mr Mahlangu, SM. Initially he was represented by Mr Zondo, T, a union official of VIWU. During the arbitration Mr Zondo was replaced as representative by Mr Mtsweni, D, an advocate briefed by Phuti Phaka Attorneys. Mr Mtsweni was later replaced by Mr Maelane, S, another advocate instructed by the same firm. The Respondent is the Department of Higher Education and Training (Tshwane South TVET College) (“DHET”), represented by Mr Khoza, B, an attorney. The issue of legal representation for both parties was dealt with and allowed in terms of Rule 25(1)(c)(i) of the CCMA Rules Rules 17.4.2 and 17.4.2.1 of the ELRC Constitution, Part C, Dispute Resolution Procedures.
Issue to be decided
3. The dismissal of the Applicant is not in dispute. I must determine whether his dismissal was substantively fair. The Applicant did not dispute the procedural fairness of his dismissal.
Background to the dispute
4. The Respondent submitted Bundle R, while the Applicant submitted Bundle A.
5. The Applicant was employed by the Respondent at Tshwane South TVET College (“the College”) as an HOD since I June 2007. He earned R36 000,00 per month at the time of his dismissal on 17 July 2020.
6. The Applicant was charged in terms of the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC) and following a formal disciplinary hearing found guilty of the charges below.
7. Charge 1: Dereliction of Duty, in that he on or about 19 March 2018 committed an act of gross
dereliction in that he as Head of Department: Business Studies failed to ensure
that staff under his supervision and control administer Task 2: Formal Test
1 as per the Common Assessment Timetable, First Semester.
8. Charge 2: Gross Dishonesty in that on or about 19 March 2018 he committed an
act of gross dishonesty when he in writing informed the
Principal that he became aware that there were no cartridges
when schools reopened from Easter Holidays, whilst he was allegedly aware at an earlier stage when it was verbally brought to his
attention.
9. The parties held a pre-arbitration meeting and submitted the signed minutes as part of the record.
10. The following issues were recorded as being the only issues in dispute:
10.1 Whether the Applicant was guilty of dereliction of duty.
10.2 Whether the Applicant was guilty of dishonesty.
10.3 Whether the Respondent acted inconsistently in the manner in which it dealt with the issue of 14
March 2018.
11. The Applicant denied all the allegations.
12. The Applicant did not dispute the procedural fairness of his dismissal.
13. The relief the Applicant seeks from this arbitration hearing is retrospective reinstatement without loss of benefits.
Summary of evidence
The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital recordings of the proceedings will reflect the complete testimony of the witnesses.
Respondent’s case
14. Rachel Ntsimane (“Ntsimane”) testified under oath that she is the former Deputy Principal, Academic. She retired in 2021. She was stationed at Head Office. She was responsible to provide guidance and leadership with regards to the assessment
of students. She was also responsible for the implementation, and monitoring of the assessment policy across the College.
15. An assessment is a test that is written by students, as per the assessment
guidelines provided for by the Department of Higher Education and Training.
16. The Program 191 Assessment Policy is an assessment policy that is
formulated by every campus. This policy is implemented across the College.
17. Lecturers would inform their HOD’s when they are running out of printer cartridges. Then the HOD, through the necessary processes, will go to the campus manager to say they are I’m
running out of the cartridges. The campus manager will then write a
submission, to be sent to head office where the
cartridges are being procured. Thereafter, the cartridges will
be delivered at the campus, and then Mr Malatjie (“Malatjie”) will control them
18. The lecturers are not in charge of the stores. But the
lecturers are in charge of the resources they are using. Malatjie’s report shows that there were 35 cartridges available in the stores. It was the Applicant’s responsibility to ensure that there were cartridges to conduct the assessment. His allegation that there were no cartridges to conduct the assessment, is not true.
19. The Applicant has a master’s degree, and it is improbable that he would have made a typing error when he wrote that he only became that were no cartridges when the schools re-opened after Easter holidays.
20. Sibusiso Yende (“Yende”) testified under oath that he is the deputy campus manager for the College. The Applicant was an HOD and was his subordinate. The Applicant was responsible to ensure quality teaching and learning. He had the responsibility to ensure that all teaching material is available to lecturers.
21. There was no shortage of cartridges. The Applicant never reported a shortage of cartridges to Yende or someone else. None of his subordinates reported any shortage of cartridges. One of the lecturers, Ms Mashangwane, did report that cartridges in the printer were not working, so he gave her the cartridge from his printer to use. His understanding was that there was a cartridge which just did not work. She never returned so he accepted the problem was sorted out.
22. There were computer tests scheduled at the time. No one else reported any issue with cartridges. Yende’s office is close to the staff room. He could hear the Applicant shouting that the College was not providing learning material. Afterwards Yende became aware that the tests were not administered. The Applicant said it was because there were no cartridges. It was not reported to Yende as the campus manager before it was reported to the Head oof School. It was not the correct protocol to bypass him.
23. When the Head of School told him what happened, he checked the storeroom, and there were cartridges. The records of the storeroom also showed there were cartridges. There was no reason not to have administered the tests. Ms Mashangwane was also charged and dismissed. There is proof of orders for cartridges signed by Yende, and proof of delivery. The Applicant said there were no cartridges because he wanted to disrupt the College.
24. It is not correct that he should have been charged as well. He was never informed of a shortage of cartridges. There were cartridges.
25. Nomsa Mathye (“Mathye”) testified under oath that she is employed as the acting deputy principal, Academic Services. In 2018 she was the Head of School. She received an email from the Applicant informing her that they did not administer the tests due to a shortage of cartridges.
26. She was part of the team that conducted an investigation, to look
into the reasons that led to the Applicant’s subordinates’ failure to administer the
assessment in accordance with the Assessment Policy and Schedule during the
period between 14 March 2018 to 19 March 2018.
27. The team of investigators consisted of herself, Ntsimane and Mr Madumo (“Madumo”), also known as the Academic Unit.
28. She is the author of the report dated 18 April 2018, which was the result of the investigation that was conducted at the Campus. The memorandum from the Applicant’s subordinates that was attached to the email of the Applicant was dated 19 March 2018.
29. The memorandum stated that the computer related subjects test 2 assessment
was delayed due to lack of cartridges. Some of the subjects were rescheduled
to the first week of reopening based on the availability of
cartridges.
30. In conducting the investigation, the Academic Unit called a meeting and invited
the Applicant’s subordinates to attend the meeting, which they did. At the meeting they were asked for an explanation why they failed to administer the Formal Assessment Task
2. They advised the Academic Unit that they were unable to administer the
assessment due to the fact that there were no cartridges as Malatjie said there
weren’t any cartridges at the Campus.
31. At the same meeting, they called Malatjie and asked him if
there was indeed a shortage of cartridges at the campus at any stage, and Malatjie
denied the allegation. He advised the investigators that there were cartridges at
all material times. Malatjie proceeded to confirm his statement in writing.
32. She testified that that she did not know if Ramahlalelwa and Matlala Seye were
charged for not administering the assessment. It was Applicant’s responsibility as HOD to ensure that there were cartridges available to do the assessments.
33. Neo Madumo (“Madumo”) testified under oath that he is the Head of School for Engineering Studies. He was part of the investigation in 2018. He was instructed by Ntsimane to go check in the storeroom for cartridges. He found 27 new cartridges.
34. Gina Khoza (“Khoza”) testified under oath that she was a lecturer in 2018 and reported to the Applicant. She was able to administer her tests for NV(V) because there were resources. There were cartridges.
35. Maggie Mayhew (“Mayhew”) testified under oath that she is the Campus Manager at Pretoria West Campus. She is a former HOD.
36. She knows the roles and duties of an HOD, as she served in that capacity
previously. She also currently manages HOD’s. HOD’s are responsible for planning, monitoring internal and external assessment processes at the college, planning for internal assessments and ensuring that All Resources are available.
37. Resources include exam question papers, which are required to be printed, printer cartridges should be in stock, computers should be in good working condition, and there should be enough stationary. The job descriptions for HODs are the same in all campuses.
38. Goodman Mnisi (“Mnisi”) testified under oath that he is employed as the Deputy Principal: Registrar. At the time of the incident he was employed as the Head of
Procurement. All procurement is done by the Head Office.
39. At the time of the incident, the procedure at the Respondent’s
Procurement Department was that the various campuses would submit submissions
wherein they request and motivate for the purchasing of certain material which
they need. Thereafter, the Procurement Department would obtain 3 quotations
from the suppliers on the database. The items, such as the printer cartridges,
would be procured.
40. There was a request for 80A cartridges which came from the campus, through a
submission dated 17 November 2017. The request was for
the procurement of cartridges for the purposes of conducting examinations for that
period. He was responsible for the procurement of goods and services within the
Respondent.
41. The Respondent procured twenty-five cartridges which were delivered on
2 November 2017.
42. The Respondent procured another twenty-five cartridges in January
2018. The said cartridges were delivered on 23 January 2018. The next procurement of cartridges was in June 2018. The delivery of the said cartridges was made on 14 June 2018. Fifty cartridges were delivered on the said day.
43. In total, between November 2017 and June 2018, there were eighty cartridges
that were delivered at the Atteridgeville Campus. A period of six months lapsed
before there was another delivery. Meaning that at all material times there were
cartridges at the Campus.
44. He observed that the cartridge register recorded that between the period 30
January to 31 March 2018, sixteen cartridges were dispatched from the storeroom. Between 1 March to 24 April 2018, 17 cartridges were dispatched from the storeroom.
45. As at 24 April 2018, 17 cartridges remained in stock. Further, between April and
June 2018, there was stock of cartridges. The Respondent would not leave the
campus without any cartridges. The assertion that there were no cartridges was
thus unfounded
46. In the event that there were no cartridges, the relevant campus would have made
contact with the head office of the Respondent. An arrangement would have been
made to obtain the cartridges from one of the of sister campuses of the
Respondent so as to enable them and their colleagues to administer the
assessments.
47. Joseph Chiloane (“Chiloane”) testified under oath that he is the principal of the College. He is the Chief Accounting Officer of the Respondent. He is aware of the charges
that the Applicant is facing, as he is the one who levelled the charges against the
Applicant. He reports to the Minister of Higher Education and Training as
well as the Deputy Director General and the Regional Manager.
48. The Applicant was employed as HOD at Attridgeville Campus. He was also a
member of Council which is the highest governing structure. At Council he
represented lecturers.
49. The Applicant never raised any issues concerning the shortages of resources at
council level. The Applicant addressed a complaint to the Minister on 20 February 2017. The
complaint was in relation to alleged bad treatment that the Applicant received from
Chiloane.
50. On 31 August 2017, the Applicant addressed another letter / memorandum to the
Minister and the DDG. Other senior government officials were carbon copied in
the memorandum.
51. Chiloane levelled the charges against the Applicant and he commissioned two
investigations. The first investigation was conducted by the Academic Unit. The
second investigation was conducted in order to ascertain if there was any
misconduct on the part of the Applicant.
52. The submissions for procurement of cartridges were delivered in his office for his
attention. He approved the submissions.
53. Subsequent to these complaint’s logged with the Minister, the Applicant
addressed electronic mails to the City Press which is a news publication. Another
mail was transmitted to Sunday Times which is also a news publication. Both
these media outlets enjoy nationwide readership and following. In the mails the
Applicant advises the news publication the following that the College encouraged students to go to bashes instead of classes.
54. The Spring Bash was presented and discussed at the very same
council meeting where the Applicant was a member and same was approved and
subsequently budgeted for.
55. There has never been a time where there were not any teaching resources at the
Respondent. The Applicant received a response from the Department. He is not aware of any
class disruptions.
56. The Respondent procured twenty-five cartridges which were delivered on
2 November 2017. The Respondent procured another twenty-five cartridges in January
2018. The cartridges were delivered on 23 January 2018. The next procurement of cartridges was in June 2018. The delivery of the said cartridges was made on 14 June 2018. Fifty cartridges were delivered on the said day.
57. According to the cartridge register, the first cartridge in the year 2018 was
collected on 31 January 2018.
58. Mashagwana collected a cartridge on 14 March 2018 which is the same day
wherein she ought to have administered an assessment. A cartridge was also uplifted on 19 March 2018 which was the last day for the administering of the assessments. This demonstrates that there were cartridges.
59. Mashagwana could not complain about a lack of a printer cartridge. The fact that
Mashagwana was able to collect a printer cartridge demonstrates the fact
that there were cartridges in the stores room.
60. As the Accounting Officer Chiloane was never shown any evidence that the
assessments were administered. He deems the actions of the Applicant as sabotage. His actions were prejudicial to the administration of the Respondent.
61. The relationship of trust has irretrievably broken down. There is an expectation of
honesty placed on every employee of the Respondent and the Applicant was
dishonest. The Applicant is still not remorseful.
62. Chiloane ensures that all the teaching and learning material was
always available at the College, as teaching and learning was the core business
of the Respondent. The College prioritises tests and exams.
63. In the event that campus A did not have a
cartridge, Campus B would provide it with the cartridge in order for it to administer
the assessments. That event did not take place as there was an adequate supply
of cartridges.
64. According to the evidence before him, the Applicant connived with his
subordinates in order to give strength to his allegations that teaching and learning
was not prioritised within the Respondent.
65. In terms of the Applicant’s job description there exists a duty to ensure that there
are resources within his unit.
66. Chiloane disputed that the Applicant’s subordinates administered the assessment on 19 March 2018 and Ramahlalelwa administered on 20 March 2018.
67. E.O Buda was initially not charged. It was only when he informed the
Respondent that he did not administer his assessment because there were no
cartridges that he was charged. He was charged immediately after the allegations
were found to be factual incorrect and untrue.
68. He further stated that there was nothing in the report from the Academic Unit in
relation to Ramahlalelwa and E.O Buda.
69. The Respondent has never faced a situation where there were no cartridges.
Cartridges are budget for, the budget is approved by the Council of the College. The Applicant’s subordinates only addressed the memorandum only on 19 March
2018, whereas the assessments ought to have been conducted as from 14 March
2018. This was after the fact.
70. Chiloane, as the chief accounting officer of the Respondent, does not trust the Applicant.
Trusting him would be tantamount to entrusting a blood bank to a Dracula. The
relationship of trust between the Applicant’s and the Respondent has irretrievably
broken down.
Applicant’s case
71. Sizwe Mahlangu, the Applicant, testified under oath that he was employed as an HOD.
72. Lecturers reported to him that there were no cartridges and as a result
they could not administer the assessments.
73. He went to Yende and Yende agreed with him and told him that he would
deal with the matter. He went to the lecturers and told them that Yende would deal with the matter and told them to go and look for cartridges at other campuses. They did so but could not find any.
74. Mashangwana went to Yende on 14 March 2018 and Yende gave her a cartridge. Therefore Yende must have been aware. It is lies that he writes a memorandum and request stationary. Standard Procedure is that when one requires a cartridge, they will speak
to Malatjie.
75. There were eight lecturers who ought to have conducted the
Assessment during the week of 14 to 20 March 2018 and none of the
lecturers conducted the Assessment. Only five lecturers were charged and the other 3 were not charged.
76. He instructed lecturers to write it down in order to raise it with head office. He noted and filed the failure by his subordinates to administer the assessment as an irregularity and recorded it in the irregularity file. The file sits with him as an HOD.
77. He did shout about the cartridges. He was excluded from the investigation. It is all lies in order to dismiss him. He knows nothing about the report.
78. Academic managers are not HOD’s, and he had no such responsibility in terms of the assessment policy. He carried out his HOD duties. He is hated by the principal.
79. It is not his signature on the job description. The job description is dated 03 August 2015. He
was appointed as HOD as of 1 June 2012. He refused to sign a job description in 2015.
80. He is not guilty of all the charges levelled against him.
81. He has been committing typographical errors and as result the letter addressed to Chiloane was an error. He wanted to say he became aware of the lack of cartridges before the recess and reported it when the schools opened. He did not lie deliberately.
82. He did consult with his legal team after each witness testified in chief. He did not give giving his advocate and legal team any instructions. They did discuss testimonies.
83. The Applicant could not explain why the version that he went to Yende to tell him that there were no cartridges, was not put to Yende in cross-examination.
84. The email to Mathye was on 11 April 2018 this is despite the Assessments were due to be administered from 14 to 19 March 2018.
85. The Applicant disputed that his signature on several different documents in the bundles look the same as the one on the job description. He has a PHD degree.
86. The Applicant conceded that the way he intended to the letter in A70.4 resulted in the addition of a whole new paragraph, not only a word that was changed. He testified that it could be caused by the language.
87. He can’t remember when he received the assessment schedule. Maybe it was in March. He can’t say when he started preparations, maybe a month before. It was not for him to check resources. Even he himself had no resources.
88. The Applicant could not explain as to what assistance was he hoping to receive
from the national media publications.
Analysis of evidence and argument
89. The record will reflect that there was a lot of animosity between the parties. I had to address the conduct of representatives as well as witnesses to a different extent on several occasions during the protracted arbitration hearing. The Applicant also left the hearing room after he was excused from the witness stand without any explanation to his legal team or the commissioner while the hearing was not yet concluded.
90. Section 138(7)(a) of the LRA requires me to issue an award with brief reasons.
91. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the legislation, arguments, legal principles, case law and Codes of Good Practice referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the record of the arbitration hearing.
92. In considering the fairness of the dismissal of the Applicant for misconduct, I will consider the principles contained in the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC), as well as the principles contained in the Code of Good Practice: Dismissals, as contained in Schedule 8 to the Labour Relations Act 66 of 1995 (the Code). The dismissal of the Applicant is not in dispute. The Applicant disputes only the substantive fairness of his dismissal, and the Respondent is therefore required to prove on a balance of probabilities that it was substantively fair.
93. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC)).
94. The Applicant was charged in terms of the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC), with Dereliction of Duty, in that he on or about 19 March 2018 committed an act of gross dereliction in that he as Head of Department: Business Studies failed to ensure
that staff under his supervision and control administer Task 2: Formal Test
1 as per the Common Assessment Timetable, First Semester.
95. He was also charged with Gross Dishonesty in that on or about 19 March 2018 he committed an
act of gross dishonesty when he in writing informed the Principal that he became aware that there were no cartridges when schools reopened from Easter Holidays, whilst he was allegedly aware at an earlier stage when it was verbally brought to his attention.
Substantive fairness
96. I find that the following issues are common cause, as it remained largely undisputed:
96.1 A Formal Assessment Task 1 ought to have been administered between the period of 14 to 19 March 2018.
96.2 The Applicant’s subordinates did not administer the assessment as per the assessment schedule.
96.3 Assessments are to be administered in terms of the Assessment Policy.
96.4 The students of the Respondent, at all campuses write a common assessment on the same day and at the same time.
96.5 The Applicant’s subordinates received the Assessment Schedule at the beginning of each semester.
96.6 The Applicant and his subordinates had timeously received the Assessment Schedule.
96.7 The Applicant’s subordinates, at the time, all reported to him in his capacity as their line manager and the HOD.
96.8 The Applicant sent e-mails to the Sunday Times and the City Press wherein he reported that the Respondent did not have resources to conduct its business.
96.9 The Applicant sent e-mails to the relevant Ministry wherein he reported
that the Respondent did not have resources to conduct its business.
97. The Respondent has a Policy related to academic assessments. In its preamble the policy states that National qualifications are based on a common national examination. These examinations and qualifications are systems that have been adopted to ensure the required standards and quality are achieved.
98. The assessment of students’ performance and the making of judgement
on what a student knows, understands and can do, are critical processes
within the National Certificate N1-N6. Assessment is regarded as the process of reflecting on the Information gathered about the students’ regular performance in order to make judgement. The assessment must be conducted in a structured environment where students’ performance is regularly reported on and recorded, through on-going practices.
99. The purpose of the Policy is to ensure the proper administration, management, conduct,
recording, assessment, moderation and reporting of student performance
by all Report 191 lecturers, prevails.
100. The Policy further states that any non-conformance with regard to this policy shall be addressed.
101. All the academic staff and students have to comply with its requirements. The failure to comply amounts to an irregularity, which amounts to misconduct on the part of the staff member.
102. The Applicant’s contention that he is not bound by the Assessment Policy cannot be accepted. As HOD and in terms of his employment contract he clearly had the responsibility to comply with the spirit and principles of the Policy. Nevertheless, it is also so that employees are expected to know that certain behaviour is simply unacceptable and cannot in such instance rely on the argument that he was not bound by the Policy. Dereliction of duty, and failing to ensure that scheduled assessments are administered, as in this case, is an example of such behaviour.
103. Prior to failing to ensure that the assessment was administered by his subordinates as per the schedule, the Applicant approached the Minister and DDG with unsubstantiated allegations of a lack of resources. After not finding joy in that regard, he continued on the same path with correspondence to the newspapers.
104. The Applicant was a poor and evasive witness who shouted often during his testimony. His own legal representative had to reprimand him during re-examination for not responding to a direct question. He also left the proceedings abruptly after he was excused from the witness stand without any explanation to the commissioner or his legal team. The hearing was concluded without him being present.
105. The Applicant failed to put material parts of his version to witnesses in cross-examination. He never put it to Yende that he went to Yende to report the lack of cartridges to him, and that Yende said he would deal with the matter. During cross-examination he testified that he himself was without resources, but that version was never put to any of the Respondent’s witnesses in cross-examination. He also did not put it to any of the witnesses of the Respondent that he knew nothing about the investigation report, as he testified in his evidence. It supports the probability that the Applicant was fabricating evidence as he went along.
106. In Rautini v PRASA (853/2020) [2021] ZASCA 158 (handed down on 8 November 2021) the Court also reiterated that cross examination is not only a right but also imposes certain obligations. As a general rule it is essential when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination, showing the imputation is intended to be made and to afford the witness an opportunity, whilst still in the witness box, of giving an explanation. If a point in dispute is left unchallenged in cross examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct (see also President of the Republic of SARFU 2000 (1) SA 1; 1999 (10) BCLR 1059). The reason for this rule is to ensure that arbitrations and trials are conducted fairly, and that a witness is afforded the opportunity to answer challenges to his or her evidence and is not ambushed.
107. The Applicant also testified that he noted the lack of printers as an irregularity in the office file but failed to present such file as evidence. He also did not request disclosure of same from the Respondent if it was not accessible to him. Surely one could have expected of the Applicant to produce such important piece of evidence if it indeed existed.
108. I accept on a balance of probabilities the evidence of the Respondent that there were indeed ample cartridges available in the stores. The actions of the Applicant favour the probability that he wanted to substantiate his allegation that the Respondent did not prioritise teaching and learning by creating the impression that the Respondent failed to provide printer cartridges for purposes of the assessment. He either set up the 5 lecturers to make the unfounded allegations, or he did not do his duty to verify their allegations if he did not set them up. It is also notable that the Applicant did not call any of these lecturers as witnesses.
109. The Applicant’s contention that he made a typing or language error when he in writing informed the Principal that he became aware that there were no cartridges
when schools reopened from Easter Holidays, whilst he was clearly aware at an earlier stage, is unacceptable. His explanation as to what he intended to say, contained a whole new paragraph. He is a highly educated person with a PHD. I find on a balance of probabilities that the Applicant was grossly dishonest when he wrote that letter.
110. I am satisfied that in respect of charge 1 and 2 the Respondent proved on a balance of probabilities that the Applicant did commit the misconduct he was found guilty of, i.e. dereliction of duty and gross dishonesty, and that the Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
111. The Applicant did not dispute knowledge of the rules. The issues in dispute were explicitly dealt with at the start of the arbitration hearing and confirmed by the Applicant through his experienced union representative.
112. The Applicant did dispute the consistent application of disciplinary action by the Respondent during the pre-arbitration meeting. It was recorded as one of the issues in dispute in signed and confirmed pre-arbitration minutes.
113. Item 3 (6) of Schedule 8 of the LRA stipulates, inter alia, that the employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past. This is deemed by the courts as historical inconsistency, which occurs when an employer has in the past, as a matter of practice, not dismissed employees or imposed a specific sanction for contravention of a specific disciplinary rule. In Southern Sun Hotel Interests (Pty) Ltd v CCMA & others [2009] 11 BLLR 1128 (LC), the court held that an inconsistency claim will fail where the employer is able to differentiate between employees who committed similar transgressions on the basis of, inter alia, differences in personal circumstances, the severity of the misconduct or on the basis of other material factors. In SACCAWU and Others v Irvin & Johnson (1999) 20 ILJ 1957 (LAC), the court found that “the best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of discretion in each individual case”. The Labour Appeal Court continued: “Fairness, of course, is a value judgment, to be determined in the circumstances of the particular case, and for that reason there is necessarily room for flexibility”.
114. The Applicant alleged that the Respondent acted inconsistently by not charging and dismissing all eight lecturers who did not conduct the assessment at the scheduled time.
115. The Respondent presented evidence that shows on a balance of probabilities that similar misconduct by other employees resulted in similar disciplinary action. The five employees who were also charged and dismissed, were those that actively participated with Applicant’s unfounded allegations, and justified the differential action taken against the other lecturers. I therefore find no evidence of inconsistent and arbitrary action on the part of the Respondent that would render the dismissal of the Applicant unfair on those grounds. The Applicant did not lay a credible basis for his claim in this regard. (See Parmalat SA (Pty) Ltd and CCMA & Others [2009] 6 BLLR 558 (LC); African Bank v Magashima and Others (JR2419/12) [2014] ZALCJHB 298.
116. In Nyathikazi v Public Health and Social Development Sectoral Bargaining Council and Others [2021] 8 BLLR 778 (LAC) the Labour Appeal Court in any event found that an employee guilty of serious misconduct, as is the case here, cannot rely on inconsistency alone to escape the consequence of his misconduct.
117. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The Code states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others [2000] 21 ILJ 1051 (LAC) at 1058F-G). The Applicant’s misconduct must be seen against the background that he was a lecturer and HOD in a position of trust.
118. The misconduct of the Applicant must be seen in a serious light. The disruption of learning through the failure to conduct scheduled assessments negatively impacts on the capacity of the Department of Higher Education and Training to exercise its mandate efficiently, which would not be in the interest of the students at the College.
119. The improper conduct of the Applicant relates to a callous disregard for established best practice policies and procedures. This is unacceptable behaviour by someone in the position of lecturer and HOD, who should set an example for students.
120. At common law, dishonest conduct by employees is regarded as the gravest form of breach of the duty of fidelity, justifying instant dismissal. It is well established that the relationship between employer and employee is in essence one of trust and confidence and that conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement. The courts have approved the clearly established principle that dishonesty undermines the trust upon which the employment relationship is built and justifies dismissal – see Kalik v Truworths (Gateway) & Others (2007) 28 ILJ 2769 (LC); Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & Others (2008) 29 ILJ 1180 (LC).
121. The conduct of the Applicant was also dishonest. The Labour Appeal Court had this to say about the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC): “This trust which the employer places in the employee are basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee.”. Dismissal is generally justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer, as was done in this case – John Grogan, Workplace Law, 10th Edition. Dismissal is an appropriate sanction when the offence involves dishonesty, even in the case of a first-time offender. See Pillay v C G Smith Sugar Ltd (1985) 6 ILJ 530 (IC) at 538 G.
122. An employer generally would have two reasons for wanting to get rid of a dishonest employee – one is that the employee can no longer be trusted, and the other is the need to send a signal to other employees that dishonesty will not be tolerated. The latter relates to the deterrence theory of punishment. A successful business like a College operates on the basis of trust. Dishonesty, including attempted theft, to such an extent impacts on the trust relationship that dismissal normally is, or should be, a sensible operational response to risk management in the particular enterprise. The Labour Court has indicated that to be the legal position, and that it is impractical to draw subtle distinctions between degrees of theft – see Miyambo v CCMA & others (2010) 31 ILJ 2031 (LAC). Mitigating factors such as a clean record and long service are unlikely to restore the trust relationship.
123. The Respondent must be able to trust its employee to refrain from dishonest behaviour. It is clear from the evidence of the Respondent that the trust in the Applicant to perform to these required principles has gone.
124. I had due regard to the principles set out in the case of Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) which underlines the principle that the employer has the burden of proof to show that the trust relationship has broken down irretrievably. The labour courts have held that the destruction of the relationship of trust is the ultimate justification for a dismissal. (See Council for Scientific & Industrial Research v Fijen [1996] 6 BLLR 685 (AD); Lahee Park Club v Garrat [1997] 9 BLLR 1137 (LAC)).
125. I also refer to Theewaterskloof Municipality v SALGBC (WC) and others LC C966/2008, 14 May 2010, wherein the Labour Court (LC) stated that the question of trustworthiness was seen to go beyond offences which are centrally dependent upon proof of outright dishonesty. The LC stated the general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship will entitle the employer to bring it to an end is a long established one. The LC stated that comparison can be drawn between length of service and a clean record on the one hand, and the circumstances of the offence and lack of remorse amounting to defiance on the other. The LC found it would be incorrect to hold the dismissal was unfair and to require the Municipality to restore the employee to a position in which he has wittingly compromised a core value and has set himself uncompromisingly against any course of reparation. There has either been no recognition by him of wrongdoing on his part or a stubborn refusal to say as much to his employer. Either way, he cannot now as a matter of fairness insist that he is to be placed back in his post, the LC found. There can be little room for the notion of corrective discipline in this situation. The LC also found that where an employee refuses to demonstrate any acceptance of wrongdoing, indicates no degree of whatsoever of remorse, makes no move to correct what he has done, and stands firm with an attitude of opposition towards his employer, then such employee through his own conduct undercuts the applicability of corrective or progressive discipline.
126. The above is aptly applicable in this matter. The Applicant showed no remorse but continued to deny any wrongdoing. The actions of the Applicant leave no option for the application of progressive discipline. I could find no other circumstances from the evidence that would dictate differently.
127. The South African Constitutional Court also ruled that the seriousness of the misconduct dictates whether the trust relationship has broken down – see South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38.
128. The Applicant’s years of service cannot outweigh the gravity and seriousness of his offences. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
129. I therefore find that the sanction of dismissal is fair and appropriate in the circumstances.
130. I accordingly find the Applicant’s dismissal substantively fair.
Procedural fairness
131. The Applicant did not dispute the procedural fairness of his dismissal and I accordingly find the Applicant’s dismissal procedurally fair.
Relief
132. The Applicant is not entitled to relief.
Award
133. The application is dismissed.
Costs
134. I have considered the issue of costs for the proceedings on 23 September 2022, and the arguments proffered by the Applicant in support of it. There was communication by the Council to the Applicant in an attempt to minimise any wasted costs for the Applicant. I am not convinced that a cost order against the Respondent is justified in the circumstances. Therefore no order is made in respect of costs.
SIGNED AT KEMPTON PARK ON THIS 18th DAY OF APRIL 2023.
Coen Havenga: Senior ELRC Arbitrator