In the ARBITRATION between

NEHAWU obo THAPELO ENOCH MAGALAKANGQA
(Applicant)

And

DEPARTMENT OF HIGHER EDUCATION& TRAINING : IKHALA TVET COLLEGE
(Respondent)

DETAILS OF HEARING AND DETAILS REPRESENTATION

1. The arbitration hearing took place on the 20th & 21st of June 2022 and 13th of July 2022 at the Ikhala TVET College at Ezibeleni.

2. The applicant Mr. Thapelo Enoch Magalakangqa was present at the hearing and was represented by Mr. Nkosiyam Mkhuthukana an official of the applicant’s trade union NEHAWU. The respondent, Department of Higher Education & Training: Ikhala TVET College was represented by Ms. Phindi Makhokha, an official of the respondent.

3. The arbitration hearing proceeded for the days listed above and was finalized on the 13th of July 2022 and the parties agreed to deliver their closing arguments in writing on or before the 20th of July 2022 and both parties delivered their arguments on time.

ISSUE TO BE DECIDED

4. I am required to determine whether or not the applicant’s dismissal was fair and if so, the appropriate relief in accordance with Sections 193 and 194 of the Labour Relations Act No 66 of 1995, as amended.

BACKGROUND TO THE ISSUE

5. The applicant was employed by the respondent as a Senior Lecturer at the Campus at Ezibeleni. He was dismissed by the respondent on the 31st of August 2021 after he was found guilty at the disciplinary hearing. Thereafter the applicant and the outcome thereof was communicated to him on the 15th of March 2022 that upheld the applicant’s dismissal. The following charges were preferred against the applicant.

6. Charge 1 – Intimidated or victimized fellow employee – in that you made some threatening comments to Ms. Soga by saying “unxibe iqhobs eludakeni uzotyibilika uyowa”, you also told her that you are the Entrance and Exit of Ikhala TVET College, and again in a meeting that was held on the 29 July 2020 you shouted Ms. Soga.

7. Charge 2 – Commits an act of sexual harassment – in that every time you saw Ms. Soga coming your way at work you would smile, make comments to her that have sexual meaning, you made suggestive body movements towards her and you eventually proposed love relationship with her by asking Ms. Soga if she could be your side chick.

8. Charge 3- Fails to comply with, or contravenes the Act, regulation or legal obligation- in that you disregarded and contravened Section 3.6.3 of the DHET Code of Conduct in that on the 30th of July 2020 you told Ms. Mateza that she was not a recommended candidate for the interviews held on the 23rd of July 2020 and she was not supposed to be shortlisted in that position, and by so doing you failed to follow a lawful instruction as stipulated by the employer in the declaration of confidentiality agreement that you signed on the 23rd July 2020 which says all discussions, decisions and proposals emanated from the interview will remain in the interviews and will not be discussed outside the interviews.

9. The aforementioned code of conduct read as follows: Section 3.6.3 refrain from discussing all confidential and official matters with unauthorised person.

10. Charge 4 – Prejudiced the administration, discipline or efficiency of a department, office or institution of the State – in that you called Lecturers and instructed them not to come to work on the 05 August 2020 (which was the official date of returning to work) and you instructed them to come on the 24 August 2020 and you had no authority to do that.

11. Charge 5 – While on duty, you conducted yourself in an improper, disgraceful and unacceptable manner – in that on 30 July 2020 while Ms. Mateza was in class you instructed her to tell students to leave the class and go home thereby disrupting the principle of learning and teaching.

12. The applicant was subjected to a formal disciplinary hearing on the 20th and 21st of January 2021 and on the 14th of April 2021 and pleaded guilty on charge 3 and pleaded not guilty on Charge 1, 2, 4 and 5. The chairperson found the applicant guilty on charges 3 as pleaded and 4 & 5.

13. The applicant argued that his dismissal was substantively unfair, the applicant did not dispute the procedural fairness of his dismissal.

14. The applicant then referred a dismissal dispute to the ELRC alleging that the respondent has unfairly dismissed him and the matter was later set down for arbitration hearing and finalized on the 13th of July 2022.

SURVEY OF EVIDENCE

15. The 1st witness of the respondent was Mutile Petuna who testified that he works for the respondent as a Lecturer at the Engineering Campus and has been there since 2007. He averres that he saw communication from other lecturers indicating that they were instructed by the applicant not to come to work on the 05th of August 2020 but to report for duty on the 24th of August 2020.

16. He decided to come to work because that communication was not coming from the Principal or any official who had authority to issue such communication. He called the applicant and the applicant indicated that the lecturers will have nothing to do at work. He stated that the lecturers and in fact the senior management of the institution are not permitted to deviate from the schedule issued by the Director General of the respondent in relation to the calendar indicating the 05th of August 2020 as the commencement date or reporting date for lecturers.

17. He disputed that the applicant was trying to manage Covid – 19 when he asked the lecturers not to report for duty and stated that the calendar was revised to manage Covid – 19 and according to him, the Covid – 19 issue was taken care off in the calendar. He stated that the applicant had no authority to instruct the lecturers not to report for duty and that in their institution it is only the Principal and Deputy Principal Academic who can communicate that type of a decision to the lecturers.

18. The 2nd witness of the respondent was Ms. Rosemary Noxolo Mateza who testified that she works for the respondent as a Post Level 1 lecturer since 2019. She stated that on the 30th of July 2020 during the second period of that day when she was lecturing level 2B Electric group the applicant came to her class and instructed her to tell the students to go home.

19. He indicated that the reason why they had to go home was because there no time table and this was the only issue mentioned by the applicant, no mention of Covid – 19 was made. She stated that she wrote a letter to report the matter. She stated that she did not agree to instruct the students and the applicant told the students to go home and come back the 06th of August 2020. Ms. Mateza indicated that when the applicant was about to leave the class on that day, he told her that he wants to see her in his office because he had bad news for her.

20. She testified that she went to the applicant’s office and the applicant told her that as she was shortlisted, the Accounting Officer (Mr Phike) was rejecting her name because she did not qualify for the position she applied for. She avers that the applicant told her that Mr. Phike said he did not know how she was shortlisted in the first place.

21. She further testified that the applicant told her that she was only interviewed because she was shortlisted and that he can challenge the matter. She stated that she indicated to the applicant that she will consult about the matter and the applicant indicated that she must not scare him. She stated that the applicant never indicated the COVID-19 compliance as his reason for instructing students to go home but said the timetable was not ready.

22. She testified that she was surprised that the applicant could as a senior lecturer disclose the interview outcomes to her as they were confidential. She disputes that her class was not in compliance with COVID-19 indicating that the number of students were reduced and there were spaces in between the desks with marks on floor indicating distance.

23. The 3rd witness of the respondent was Mr. Lunga Malindi who testified that he works for the respondent as Deputy Principal – Corporate Services with effect from the 1st of February 2020. He confirmed that there was a recruitment process to appoint a lecturer and Mr. Magalakangqa as a Senior Lecturer was one of the panelists and later he and Ms. Makapela received a report from Ms. Mateza, that she was told by the applicant what the outcomes of the interview was and that she was informed that she was not supposed to be shortlisted because she did not qualify.

24. He asked the applicant when he came to the admin center about the report from Ms. Mateza. The applicant confirmed that he told Ms. Mateza about the outcome of the interview and he apologized to saying that it was a slip of a tongue. He confirmed that there was a calendar issued by the Director General of the Department of Higher Education and Training indicating the opening dates of lectures at at the institution.

25. He indicated that he received a report that lecturers were not at work from the 05th of August 2020 – 07th of August 2020 due to the instruction from the applicant and he called Mr. Bhikisha who is Deputy Principal – Academic as he was quarantining in Durban at the time telling him that lecturers were not at work. He testified that Mr. Bhikisha issued an instruction that all the lecturers must return to work and they did which was confirmation that the applicant’s instruction was unlawful.

26. He testified that he was chairing the COVID-19 Committee at the Admin Centre and Ikhala TVET College including the Ezibeleni Campus in which the applicant was in and that the institution was compliant with COVID-19 regulations. He avers that he was always at work in August 2020 and the applicant never reported non-compliance of the campus to him or to the Accounting Officer.

27. He testified that the employer incurred costs amounting to R8 291.93 as a result of the applicant’s instruction and actions of the 05th of August 2020 to 07th of August 2020 and his absence. He testified that the Accounting Officer was not aware that there were lecturers that were instructed by the applicant in August 2020 not to report on duty.

28. He gave evidence to the effect that the actions of the applicant which include the disclosure of interview information, disregarding the calendar from the Director General of the Department, his continued absenteeism without authority and the costs incurred by the employer due to his actions broke the trust relationship between the applicant and the employer.

29. The 4th witness of the respondent was Adv. Joseph Chiloane who testified that he was the Presiding Officer for the disciplinary enquiry of the applicant and he issued the findings and the sanction of the disciplinary hearing. He stated that dismissal sanction that he issued was based on aggravating factors which weighed higher than the mitigating circumstances together with the seriousness of the transgression.

30. He explained to the hearing that he was not bound by the recommendation of a suspension and final written warning that was proposed by the initiator. He indicated that he is an independent Presiding Officer and he cannot be told by the parties as to how he must presides in the enquiry. He looked at the seriousness of the charges. He testified that the applicant never showed remorse in the disciplinary proceedings but instead, the applicant indicated that he had authority to instruct lecturers not to come to work and had an authority to instruct students to go home.

31. He indicated that the actions of the Applicant were of a serious nature to an extent that the applicant closed the campus and that resulted to fruitless and wasteful expenditure by the employer. He stated that the applicant pleaded guilty on charge 3 out of 5 charges against him and pleading guilty does not indemnify him from the sanction of a dismissal.

32. The respondent’s representative then closed their case and the applicant’s representative opened the applicant’s case by calling the applicant Mr. Thapelo Enoch Magalakangqa who testified that he was employed by the respondent as a Senior Lecturer Nated Program with 5 years’ experience.

33. He confirmed that he pleaded guilty to charge 3 and pleaded not guilty charge 4 and Charge 5 during the disciplinary proceedings. He further states that he is now pleading guilty to all the charges as stated in in the notice to attend a disciplinary hearing. The applicant testified that the reason why he did not plead guilty at the disciplinary proceedings was that he was pre-occupied with situation of COVID – 19.

34. At arbitration, the applicant confirmed that he had no authority to instruct lecturers not to report for duty but he did that because he was the only Senior Lecturer at the time so he did so to save their lives in response to Covid – 19 regulations. He further confirms that he was not at work at the time of instructing lectures not to come to work, he was at his home quarantined because he was in contact with someone who had COVID – 19. He further confirmed that his quarantine status was not known at the institution as he was reflected as being absent on the attendance register.

35. The applicant testified that he disclosed the interview outcomes to Ms. Mateza because he was sympathizing with her and he agreed that he completed and signed a declaration form whereby he was declaring and affirming that he will not disclose or discuss the interview decisions or discussion with any other person, however he did so.

36. He confirmed that he never told Mr. Bhikisha – Deputy Principal – Academic or the College Principal that he was once at home quarantining for couple of days and whilst at home he instructed lectures not to report on duty, he did so to save the lectures from COVID – 19. The applicant agreed that he disregarded the calendar that was issued by the Director General of the respondent and he did so because of COVID-19. The applicant agreed that the employer incurred costs because of his actions and testified that he would never trust any lecturer that can disclose confidential information.

37. The applicant’s representative then called their 2nd witness Mr. Mthunzi Kutta who testified that he works as an Assistant Director – Labour Relations at the Department of Social Development Eastern Cape and is familiar with the applicant’s case because he was the initiator in the applicant’s disciplinary hearing.

38. He avers that the employer indicated to him that in the event that the employee is found guilty of the charges, the sanction relevant to misconduct must be issued. He testified that he took it as if the employer means the discipline should be done in terms of corrective and progressive discipline. He testified that he recommended a sanction of a 2 months suspension without pay, counselling and final written warning to the chairperson.

39. He agreed that the chairperson has powers to impose the sanction he deems appropriate and that the sanction he requested from the chairperson was his position and not the position of the employer and that he forwarded his knowledge and assumptions of the institutions position on the implementation of the Disaster Management Act.

ANALYSIS OF EVIDENCE AND ARGUMENT

40. Section 185 of the Act provides:-
‘Every employee has the right not to be:
(a) Unfairly dismissed.

41. The Act recognizes three grounds for termination of the employment relationship between parties. These grounds are the conduct of the employee, the capacity of the employee and the operational requirements of the employers business. The employer has the onus to prove that the dismissal of the applicant was procedurally and substantively fair.

42. In this dispute the applicant does not dispute the procedural fairness of his dismissal and in as far as the substantive fairness is concerned the applicant also confirmed at the hearing that he does not dispute the charges. He just tried to justify what he did and this award is simple about this part.

43. In deciding the fairness of the applicant’s dismissal I must consider item 7 of the Code of Good Practice on Dismissal. In this regard the Code states that an arbitrator must consider,

– Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace; and
– If a rule or standard was contravened, whether or not –
I. the rule was a valid or reasonable rule or standard;
II. the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
III. the rule or standard has been consistently applied by the employer and
IV. dismissal was an appropriate sanction for the contravention of the rule or standard.

44. As indicated above the applicant does not dispute that he has broken a rule that was valid, reasonable and known to him. This rule is known to the employee as it can also be implied and has been applied consistently. The respondent’s representative has argued that this form of misconduct is prohibited by the respondent and is punishable by a dismissal as it falls under serious acts of misconduct.

45. In proving that the applicant was in breach of the misconduct for which he was dismissed, the respondent called 4 witnesses whose names and their evidence appear in the topic dealing summary of evidence above. To dispute the respondent’s version the applicant testified on his own defense and called one witness.

46. The essence of the evidence of these witnesses is that: At this stage I must mention that the applicant confirmed that he pleaded guilty to charge 3 and pleaded not guilty charge 4 and charge 5 during disciplinary proceedings. However at the arbitration hearing, the applicant admitted having committed the transgressions contained in charges 3, 4 and 5 for which he has been found guilty.

47. What seems to be in dispute is appropriateness of the sanction as the applicant simple justifies his wrongdoing and argue that dismissal was too harsh in the circumstances.

48. This matter will therefore be dealt with as such and the applicant stated that the reason why he did not plead guilty at the disciplinary proceedings was that he was pre-occupied with situation of COVID – 19 and this explanation is not acceptable as it does not make sense.

– It is not disputed that the Director General of the respondent issued a calendar to all the Colleges indicating the commencement dates of both staff and classes and this was done also to in the context of the management of the impact of COVID-19. It is also common cause that it was clearly stated on the said calendar that no deviation from the calendar was allowed without prior approval by the Director General of the respondent.

– The applicant without authority disregarded the calendar and without even having authority instructed lectures and students to go home and stay away from class against the contents of the calendar. He confirmed that he never told Mr. Bhikisha – Deputy Principal – Academic or the College Principal that he was at home quarantining for couple of days and while at home he instructed lectures not to report on duty and he did so to save the lectures from COVID – 19.

– There is up to now no satisfactory explanation from the applicant for doing this and I cannot understand why he did it. At the time he did this he was at home absent from duty and the only plausible explanation is that he wanted other lectures also to absent themselves and be dealt with like him.

– It is also common cause that the applicant contravened Employees Code of conduct Section 3 subsection 3.6.3 which says refrain from discussing all confidential and official matters with unauthorized persons. Applicant admitted that he signed confidentiality clause on the 23rd July 2020 whereby he declared and affirmed that he bind himself to confidentiality with regards to all discussions, decisions and proposals emanating from the shortlisting and interview meeting that he attended.

– He agreed and affirmed that should he be found to have violated the declaration and affirmation, disciplinary actions will be taken against him. The applicant without being asked divulged confidential information to a candidate by the name of Ms. Mateza in a manner that discredits senior officials of the institution and the institution itself.

– The applicant instructed lecturers not to come to work because students were opening the following week and there was no work to do and no time table and the COVID-19 defense by him was an afterthought and never the reason for this instruction. The institution had a COVID-19 Committee established by the College to deal with Covid-19 pandemic and the applicant never reported non – compliance to the said Committee.

– He further misled the arbitration hearing into believing that he was quarantining at the time he gave instruction to lecturers when he was in fact just absent and reflected like that on the attendance register. The applicant’s explanation that he disclosed the interview outcomes to Ms. Mateza because he was sympathizing with her is unacceptable and nonsensical.

– He agreed that the employer incurred costs because of his actions and testified that he would never trust any lecturer that can disclose confidential information. Even if the evidence of the employer witnesses was disputed these witnesses is clear, corroborative and coherent and the version of the employer is probably. His conduct is not good for any employment relationship and the applicant cannot be trusted.

49. I find the applicant’s conduct not to be consistent with that of a reasonable employee in the circumstances because in an employment relationship, employees who are also subordinates have to submit to the authority or respect the authority of management otherwise, if that does not happen, the whole employment relationship becomes a mockery.

50. The applicant could not provide a satisfactory and honest explanation why he committed the transgressions in charge 3, 4 and 5. The applicant in his arguments tried to justify his conduct and present personal circumstances but unfortunately these do not weigh above the seriousness of this offense. Any action short of dismissal will be inappropriate in the circumstances.

51. Even though the applicant had a clean record, the seriousness of his conduct cannot justify a sanction short of dismissal. The applicant had no valid defense at all to the allegations leveled against him and had no valid argument to mitigate the sanction of a dismissal. This misconduct was clearly a planned mission by the applicant to achieve the objectives that are only known to him.

52. In Council for Scientific & Industrial Research v/s Fijen 1996 (2) SA 1 (A) at page 26 the court held that it is a natural term of the employment contract that there is a reciprocal duty not to conduct oneself in a manner which is calculated to destroy the relationship of trust and confidence essential to the continuation of the employment relationship.

53. The other question that I have to answer in this award is whether the dismissal of the applicant was appropriate in the circumstances. In response to that I find that the applicant’s dismissal was appropriate in the circumstances.

54. The Constitutional Court in Sidumo & another v/s Rustenburg Platinum Mines Ltd and other (2007) 12 BLLR 1097 held that in deciding whether dismissal is an appropriate sanction for an act of serious misconduct, the test is whether the misconduct renders the continued employment relationship intolerable.

55. The acts of misconduct committed by the applicant in the context of his employment as a Senior Lecturer renders the employment relationship between the parties intolerable as it interferes with trust where the employment relationship is built. This type of misconduct is also expressly prohibited by the employer in their disciplinary code and the employer is expected to apply discipline in a consistent manner. Having found the applicant has committed is guilty of charges 3, 4 and 5 I must determine whether dismissal is justified.

56. The Constitutional Court in the Sidumo case above held that fairness requires a balancing of the interest of the employer and employee parties. An arbitrator must consider the totality of circumstances in determining the fairness of the sanction. In terms of the Sidumo judgment, the commissioner must:
I. Take into account the totality of circumstances;
II. Consider the importance of the rule that had been breached;
III. Consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal;
IV. Consider the harm caused by the employee’s conduct;
V. Consider whether additional training and instruction may result in the employee not repeating the misconduct;
VI. Consider the effect of dismissal on the employee;
VII. Consider the employee’s service record.

57. In Fidelity Cash Management Service v Commission for Conciliation Mediation and Arbitration & others Case DA10/05 the Labour Appeal Court held that in considering the totality of circumstances the commissioner would have to answer the question whether dismissal was in all of the circumstances a fair sanction. In answering that question he or she would have to use his or her own sense of fairness.

58. That the commissioner is required to use his or her own sense of justice or fairness to decide the fairness or otherwise of dismissal does not mean that he or she is at liberty to act arbitrarily or capriciously or to be mala fide. He or she is required to make a decision or finding that is reasonable. We have to respect the chairperson’s decision unless it could be proved that it was an unreasonable one.

59. On the appropriateness of the sanction the LAC court in its decision in Nampak Corrugated Wadesville v/s Khoza (1999) 20 ILJ 585 (LAC) Ngcobo J.A. held that the determination of the appropriate sanction is a matter which is largely within the discretion of the employer, however that discretion must be exercised fairly. The sanction of a dismissal that was imposed by the employer in the circumstances where an employee has committed a serious misconduct was a fair and a reasonable one.

60. In De Beers Consolidated Mines Ltd v/s CCMA & others (2000) 21 ILJ 1051 (LAC) the court accepted that the ultimate justification for the employers powers to impose discipline flows from the right to manage their business effectively. The court held further that “dismissal is not an expression of moral outrage; much less it is an act of vengeance. It is or should be sensible operational response to risk management in the particular enterprise”.

61. In Standard Bank of South Africa Ltd v/s CCMA and others (1998) LC 7 the court stated that it is trite principle that breach by the employee of the duty of good faith to the employer is destructive to the employment relationship. Applicants conduct is destructive to employment relationship and cannot be tolerated in the employment context.

62. I am satisfied that the rationale that I have used in coming to this conclusion is one that qualifies when we talk about reasonableness and weighing the interests of both parties as directed in the Constitutional Court in its decision in NEHAWU v/s University of Cape Town (2003) (CC) where the Constitutional Court held that the arbitrator is expected to have regard to the interest of both parties in coming to a conclusion whether the conduct of the employer to dismiss the employee was fair or not.

63. In this dispute the interests of the respondent far outweigh those of the applicant and that the applicant cannot be trusted. The applicant was not prepared to admit all the wrongdoing and this factor cannot be regarded as a mitigating factor because he pleaded guilty to charge 3 but the seriousness of the transgression.

64. It is an undisputed fact that the respondent will suffer severe consequences if this wrong doing is condoned and the respondent has to apply discipline consistently and for this reason, the applicant cannot be given differential treatment. The respondent’s version in so far as it relates to substance is accepted and that the applicant’s dismissal was appropriate in the circumstances. This means that the respondent has managed to discharge its onus entirely in terms of section 192 (2) of the Act.

65. In the circumstances I hereby make the following award.

AWARD

66. The dismissal of the applicant, Mr. Thapelo Enoch Magalakangqa by the respondent, Department of Higher Education & Training – Ikhala TVET College – was both procedurally and substantively fair.

67. The applicant is therefore not entitled to any relief.

Signature:

Commissioner: Malusi Mbuli