In the arbitration between

NDUBELA XOLANI EMPLOYEE

AND

DEPARTMENT OF HIGHER EDUCATION EMPLOYER

ARBITRATION AWARD

THE DETAILS OF THE HEARING AND REPRESENTATION

1. This is an award in the arbitration between Ndubela Xolani, the employee and the Department of Higher Education, the employer.

2. The arbitration hearing was held under the auspices of the Education Labour Relations Council in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (LRA) and the award is issued in terms of Section 138(7) of the LRA.

3. The arbitration process commenced on 30 October 2019 and was concluded on 31 October 2019 at 18A Beyers Naude Street, Standerton, Mpumalanga.

4. The employee was present and not represented in the proceedings while the employer was represented by Mr Tamsanqa Mila, an attorney.

ISSUES TO BE DECIDED

5. I have to determine whether the employee’s dismissal was effected in terms of a fair procedure and for a fair reason.

6. Should I find that there was a dismissal, I must decide whether the dismissal was procedurally and substantively fair or not.

7. Should I find that the dismissal was unfair, I am enjoined to order an appropriate relief.

BACKGROUND TO THE ISSUE IN DISPUTE

8. The employee, a lecturer, referred an unfair dismissal dispute to the ELRC. The matter was then set down for a conciliation process. After the conciliation process, the dispute remained unresolved on 26 July 2019 and the parties concluded pre- arbitration minutes.

9. The employee requested that the matter be resolved through arbitration. The matter was initially set down for the arbitration process on 19 September 2019. On this day the arbitration proceedings were postponed. A ruling was issued granting both parties a right to be legally represented.

10. The proceedings were held on 30 and 31 October 2019 and were electronically recorded.

11. Both parties submitted their bundles of documents. The employer’s bundle was marked “A” while the employee’s bundle was marked “B and C”.

SURVEY OF EVIDENCE AND ARGUMENTS
Employer’s case
12. The employer’s first witness, Bongani Pretty Sibiya, testified under the oath that he is employed as a Human Resources Clerk and Labour Relations Administrator. He was appointed by the Principal of Gert Sibande TVET College to investigate allegations relating to a sexual relationship between the employee and the student, Ms Mbali Buthelezi. The allegations included sexual assault on Ms Buthelezi. This was after the Campus Manager, Ms Dibakoane, informed the Principal about these allegations against the employee.

13. He obtained sworn statements from Ms J.L Dibakoane, Ms M.M Habile, Ms S.V Nkosi, Ms M.S Buthelezi, Ms P.P Nkosi, Mr L.M Masuku, Mr F.E Nkosi, Mr T.J Matlatho and Mr M.E Motlalane. The employee did not cooperate as he refused to hand over his written sworn statement.

14. He arranged a meeting with Ms Buthelezi, Ms Dibakoane, and Ms Nkosi, a roommate of Ms Buthelezi and Mr Lindokuhle Masuku, Ms Buthelezi’s boyfriend. In this meeting, Ms Buthelezi informed him that the employee has been proposing love to her for some time. She eventually accepted the employee’s proposal. This was during her brief break-up with her boyfriend, Mr Masuku. She later resolved her differences with her boyfriend and decided to end the relationship with the employee. The employee refused to accept this termination of the relationship.

15. He then analysed the sworn statements and compiled a report for the Principal. He found that the employee had a sexual relationship with Ms Buthelezi, a student and that the employee forcefully dragged Ms Buthelezi from her room on the 10th of October 2018. He further found that the employee smashed Ms Buthelezi’s cellphone against the wall at his place of residence. He found further that there was a sexual relationship with and sexual assault on Ms Buthelezi by the employee. He therefore recommended that formal disciplinary measures be taken against the employee.

16. Under cross examination, he maintained that he gave the employee sworn statements forms twice and the employee simply refused to return them. He further stated that the employee sent Ms Habile, his Head of Department, a message where he requested her to keep the damaged cell phone for him and that he would deliver the new one. He requested Ms Habile to let the kids know. He also confirmed that the employee did not attend the disciplinary hearing because he stated that the forum did not have the jurisdiction to charge him and that he did not want to incriminate himself in the hearing.

17. The second witness, Ms Mbali Success Buthelezi, testified that she was a student at Sebanesetfu Campus in 2018. The employee used to teach her Advertising and Promotion. The employee proposed a love relationship with her. He initially proposed on valentine’s’ day in February 2018. She rejected his proposal and eventually relented around August 2018.

18. On 10 October 2018, around 18H30, the employee came to her room which she shared with Ms Nkosi. The employee wanted to talk to her but she refused. He took her cellphone and put it in his pocket. He said they should go and speak somewhere where there were no people. She refused but he pulled her. They started arguing as to why they did not want to go to his room. She insisted she wanted to go back. They eventually arrived at the employee’s room around 1h30. Upon arrival, he offered her food which she rejected. Because it was late and she could not go back alone, she requested to sleep. He offered her a bed. She took off her shoes but did not take off her pair of trousers and jersey. After a while, the employee came to the bed. He started undressing her and told her that they needed to have sex. She refused but he forced himself on her and later slept on her side. She then went to look for the keys of the door but could not find them as she wanted to leave. She then went back to sleep.

19. On the morning of the 11th of October 2018, the employee wanted to have sex with her again. While he was trying to hold her, the cellphone rang. When she wanted to take the cellphone and answer it, he jumped and prevented her from answering the phone. He then requested her for the password and she refused. He then smashed the cellphone twice against the wall until it broke down and switched off. He threw her clothes through the window outside and said she must leave. She took the broken cellphone and went outside and dressed. She went to her room crying. Because she was crying, her roommate asked her the reasons for her crying. She related to her what had happened. Her roommate then called her boyfriend Mr Masuku. On her boyfriend’s arrival, she explained what had happened to her and the cellphone. Mr Masuku told her that he would take the cellphone to the Campus Manager.

20. Under cross-examination, the employee put it to her that he was not at the Campus between the 10th to 12th of October 2018 as he was at the hospital. She maintained that the employee was there on campus. On the 11th of October 2018, he also saw him at the Student Support Centre. She also maintained that they had a relationship. When it was put to her that she fabricated this story for financial incentive, she denied it and said she was not broke at the time. She also said that the employee acknowledged in an sms to Ms Habile that he would replace the cellphone.

21. Lindokuhle Magnificent Masuku testified that he is a Marketing Student doing level 4. Ms Buthelezi is his girlfriend. On 10 October 2018 he received a call from Phumla Nkosi, Mbali’s roommate. The employee took Mbali by force. He did not take the matter seriously as he regarded the employee as his lecturer. On 11 October 2018, Ms Buthelezi called her to come to the room. He went and found her crying. She explained that Mr Ndubela broke her cellphone. He went to their lecturer, Mr Motlalane. Mr Motlalane, Mr Nkosi and Mr Matlatho, all lecturers, approached the employee about the incident but he refused to co-operate. He then received a telephone call from the employee asking him what he wanted. He told him that he wanted her cellphone. The employee said he would talk to his parents. After a few hours, he received a telephone call from his grandmother and mother who asked him why he troubled the lecturer. He told them that he only wanted his cellphone.

22. On 12 October 2018, he went to collect the broken cellphone from Mr Motlalane. He confronted the employee. The employee told him that he would never talk to him but his parents. The employee told him that he could go to management as he did not come. He then went to the Campus Manager, Ms Dibakoane.

23. Under cross-examination, it was put to him that the employee got his numbers from one Rose who heard him complaining about his cellphone. The employee confirmed calling the grandmother and the witness’s mother.

24. Joan Lerato Dibakoane testified under oath and stated that she is the Campus Manager at Sibanesetfu where the employee was working. On 12 October 2018, Mr Masuku came to her office with a broken cellphone. He told her that the phone was broken by the employee while it was with Ms Buthelezi. She called Ms Buthelezi to come and explain what happened. After explaining what happened, she called the employee to ask whether she knew Mbali. The employee said she had a lot of “Mbali” in her class. She asked about Mbali Buthelezi and whether any incident happened. The employee said he could not remember any incident. The employee came to her office and had a bag. He told her that he was rushing for a taxi to Johannesburg.

25. Makganta Maria Habile, Head of Department Engineering testified that on 12 October 2018, she received a call from the Campus Manager. On arrival, she found the Campus Manager with Mr Masuku who had a broken phone. Mr Masuku explained that the phone was damaged by the employee. The Campus Manager called the employee and asked him about Ms Buthelezi. He said he did not know Ms Buthelezi. The employee was at work during the week commencing on 8 October 2018 until 12 October 2018. An attendance register where the employee signed was submitted. The employee was not at work on 17 October 2018. She sent him an sms message to check where he was. He responded and said he was in Baragwanath Hospital. He requested that she must keep the damaged cellphone and that he would deliver the new one and that she must let the kids know.

26. Tlou Johannes Matlatho, a Marketing Communication Lecturer, testified that on 11 October 2019, his colleague Mr Mothalane came to him with a damaged cellphone. He told him the cellphone was smashed by the employee. He suggested that they call the employee. He further suggested that they call another lecturer, Mr Nkosi to become a witness. The employee came to his class. The employee agreed to buy a new cellphone. A few hours later, when they followed up with employee he said he was no longer going to buy that cellphone. That was all he knew.

Employee’s case
27. Xolani Reuben Ndubela stated under oath that he had a strange relationship with the employer. He was accused of administering corporal punishment as well as disgracing the institution. He was denied an opportunity to study and was not supported while he studied. His employment contract kept on being renewed. He was accused of non-performance. He was at some stage ordered to pay money used for breakfast of the learner.

28. During August 2018, his son was diagnosed with partial paralysis desease. He started taking paternity leave from 5 September 2018 until 7 September 2018. His son’s condition worsened in October 2018 and was admitted at Baragwanath Hospital. He would provide support to the son by visiting daily for a week and the son would be discharged. The hospital would give out letters to parents confirming their daily visits when the child is discharged.

29. Between 10, 11 and 12 October 2018, he was not on Campus. He never had any sexual relationship with Ms Masuku, a student and neither did he commit any sexual assault. Annexure “TH15”, a letter from the Department of Health and Social Development dated 18 October 2018, confirms that he was in the hospital daily since the admission of his son.

30. The evidence of his colleagues does not reflect the truth as he was not on campus or at Ms Buthelezi’s room with her.

ANALYSIS OF EVIDENCE AND ARGUMENTS
31. This matter relates to a dismissal dispute as contemplated by Section 191 (5) of the LRA. The parties concluded and signed pre-arbitration minutes on 2 July 2019. Form the minutes, the procedural and substantive fairness of the dismissal was in dispute. No further details were submitted. The employee was charged and dismissed for two allegations of misconducts in terms of section 17 (1) (b) and (c) of the Employment of Educators Act 76 of 1998. It was alleged that the employee committed an act of sexual assault on a student, Ms Buthelezi on 11 October 2018 and that he had a sexual relationship with a student, Ms Buthelezi, at the college where he was employed.

32. The employer called six witnesses to prove the fairness of the employer’s dismissal.

33. On the procedural fairness of the employee’s dismissal, the employee did not raise any point that he deemed his dismissal unfair. Be that is may, the employer’s witness, Mr Bongani Sibiya, stated that the employee was given a notice to attend a disciplinary hearing which was postponed in the first sitting as a result of the applicant’s request. On the second sitting, the employee attended and stated that he could not subject himself to the process because the forum did not have the authority to charge him. Secondly, he stated that the matter was of a criminal nature and he did not want to incriminate himself. He then excused himself even when the Chairperson explained to him that those were two separate processes. The employee did not deny this version. I therefore cannot find any substance to the allegation of the procedural unfairness of the dismissal.

34. In relation to substantive fairness of his dismissal, the employee submitted, even throughout cross- examination of the employer’s witnesses, that the charges were a conspiracy and fabrication against him because he was neither on campus nor at Ms Buthelezi’s room during the period of 10 October 2018 to12 October 2018. In this regard, he relied on an email he had sent to the Campus Manager on 18 October 2019 as well as a letter from Baragwanath Hospital dated 18 October 2018. The gist of the letter is that the employee’s son, Thato Pitso has been with the hospital since 04 October 2018 and in the ICU from 9-12 October 2018. The last sentence of the letter reads as follows:

“He (the employee) has been with his son in the hospital daily since his admission. It is impossible to predict the course Thato’s treatment will take and how often he will need to be admitted”
The employee strongly submitted that he was not at work as confirmed by this letter.
35. The employee’s challenge to the substantive fairness of his dismissal should fail for the reasons I set out hereunder. Firstly, the student complaint, Ms Mbali Buthelezi, stated without shaking that the employee came to her room on 10 October 2018 and pulled her cellphone and put it in his pocket. At his room, the employee forced himself on her. In the morning he attempted to force himself on her again but was disturbed by the cellphone which rang. He smashed the cellphone against the wall until it broke. The cellphone was presented as evidence. Ms Habile, the employer’s Head of Department for Engineering, testified about the sms communication between herself and the employee. In this communication, the employee, when asked about his whereabouts, on 17 October 2018, stated that he was still in Baragwanath Hospital. He however would deliver a new cellphone when he comes back. He asked his HOD to keep the damaged cellphone. This communication was not denied by the employee. There could have been no basis for him to offer to deliver a new cellphone if nothing had happened and was not on Campus at the alleged times.

36. Secondly, Ms Habile, provided an attendance register where all the staff sign. The employee signed that he was at work from 8 October 2018 until 12 October 2018. This evidence was not challenged. The employee did not provide any explanation as to why the attendance register was signed.

37. Thirdly, on 11 October 2018, Mr Mathatho testified that the employee came to his class in the presence of his colleagues, Mr Matlalane and Mr Nkosi where he undertook to buy a new cellphone. This witness was also not shaken as he was clear that he saw the employee in his class.

38. Fourthly, on 12 October 2018, the Campus Manager stated that she called the employee to her office whilst she was with Ms Habile. The employee came with a bag and stated that he was rushing to a taxi to Johannesburg. This was also confirmed by Ms Habile. Mr Masuku also confirmed that he approached the employee on 12 October 2018 and asked for his cellphone. The employee told him that he would talk to his parents. All these people saw the employee on the 12 October 2018 and the attendance register confirms that he was at work. No explanation is given by the employee except just bare denial.

39. After analysis of the evidence, I find that the dismissal of the employee was substantively fair.

AWARD
40. The employee’s dismissal was procedurally and substantively fair.

41. The employee’s referral is hereby dismissed.

Panellist
M.N MASETLA