In the matter between:

PSA obo Lephuthing & eight others Applicant

And

Department of Higher Education and Training Respondent

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing between PSA obo Lephuthing & eight others (“the Applicants”) and Department of Higher Education and Training (“the Respondent”) was held on 06 September 2018 and concluded on 16 September 2019 at the Respondent’s Offices in Bethlehem. The Applicants appeared in persons and Mr. J Jack, union official, represented them. Adv. M Dhlamini, Director: Legislation and Litigation, represented the Respondent.

2. These proceedings were digitally recorded.

ISSUES TO BE DECIDED

3. The procedural fairness is in dispute, whether the initiator and chairperson were appointed properly, whether the disciplinary enquiry (“the enquiry”) was postponed to the 14 September 2016, and whether the Applicants were served with notice of the enquiry to be held on 07 and 08 September 2016.

4. The substantive fairness is in dispute, in respect of being guilty on one (1) count of misconduct relating to participation in an unprocedural and unprotected unlawful industrial action.

BACKGROUND TO THE ISSUE

5. The Applicants are employed by the Respondent as lecturers at Itemohelng Campus. They were charged for participating in an unprotected strike. They attended the enquiry on 14 June 2016 and it was postponed to the 22 July 2016. On 22 July 2016, the enquiry was postponed because of the non-availability of the Presiding Officer, Mr. Marumo. The enquiry proceeded in their absence on 07 September 2016. They were found guilty and the sanction of a final written warning and five (5) days suspension from work without pay was imposed on them. They lodged an appeal and, the appeal outcome confirmed the sanction.

6. The Applicants referred this unfair labour practice dispute to the Council on 16 October 2017, where it remained unresolved at conciliation on 04 May 2018. A certificate of non-resolution was issued, and the dispute was then referred for an arbitration.

7. The parties submitted bundle of documents and they were marked bundles “A” “B” and “C”.

SURVEY OF EVIDENCE AND ARGUMENT

APPLICANTS’ EVIDENCE

First Witness: Mr. Pakane Piet Lephuthing

8. The witness testified under oath that he is employed by the Respondent as a Lecturer (PL1). The document at “B1” was the notice of the enquiry and the Respondent alleged that he participated in an unprotected strike. The enquiry was held on 14 June 2016 and he attended it. Mr. Marumo was the presiding officer of the enquiry and Mr. Tladi was the initiator. The enquiry was postponed to 22 July 2016.

9. On 22 July 2016, the enquiry could not take place due to non-availability of the presiding officer. Mr. PM Tladi, the initiator was present at the enquiry as per document at “B19”. The initiator and the Applicant’s representative agreed that the enquiry would proceed on 14 September 2016. He did not receive notice to attend the enquiry that was held on 22 July 2016. The document at “C51” was the notice of the enquiry addressed to him to be held on 07 and 08 September 2016.

10. He did not receive the said notice of the enquiry. Mr. Mokhobo did not serve him with the notice of the enquiry to be held on 07 and 08 September 2016. He denied the allegation to say that he refused to acknowledge receipt of the enquiry. He had no objection to attend the enquiry on 07 and 08 September 2016. He was on duty on those dates. The document at “B23” was the responsibilities of the labour relations directorate and departmental officials. The presiding officer and initiator are appointed by the departmental official. The appointment letters of the presiding officer and initiator were not present during the enquiry. The document at “C62” was the email sent to Mr. Mokhobo requesting the appointment letters of the presiding officer and initiator of the enquiry. He could not remember receiving the said documents.

11. On 01 February 2016, he reported for duty and there was a late registration at Itemoheleng campus (“the campus”). The time table was not completed during the week of the 01 to 05 February 2016. He only received the time table on 05 February 2016 at around 12h00 as per document “B15”. He completed the attendance register as per document “B16” as a proof that he was at work from 01 to 05 February 2016. He denied the allegation to say that he refused to render his services on the days in question. The campus manager, Mr. Malakoane, was well aware that he did not have the time table. The lecturing classes commenced on Monday, 08 February 2016.

12. The Public Servants Association (“PSA”) was not informed about his participation in an unprotected strike. Everything was normal at the campus between January and February 2016. No ultimatum was served to him for participating in an unprotected strike.
13. Under cross-examination he confirmed that he reported for duty on 01 to 05 February 2016 as per document at “B16”. There was no specific area to put the attendance register. The normal working hours was from 07h30 to 14h50. The attendance register was controlled by the campus management. After signing the attendance register, he went to the staff room and Mr. Malakoane was present between the periods 01 to 05 February 2016.

14. There was no teaching and learning between the period 01 to 05 February 2016. He confirmed that the time table was completed on 05 February 2016 and, Mr. Malakoane said the effective teaching and learning would commence on 08 February 2016. During the week of the 01 to 05 February 2016, he assisted with the late registration and Mr. Malakoane could corroborate his evidence. He denied the allegation to say that on the days in question, he signed the attendance register, went away and came back later to sign off. He denied the allegation to say that he participated in an unprotected strike.

15. He denied the allegation to say that he refused to acknowledge receipt of the initial time table because he wanted to be involved in the drafting of the time table. He denied the allegation to say that he refused to render his services because the students did not have text books. He maintained that he assisted the campus with the late registration. He did not have any shortage of text books in his class.

16. He confirmed that on 07 and 08 September 2016 he was at work and, he maintained that he was not served with the notice of the enquiry. Mr. Mokhobo only served them with the notice of the enquiry to be held on 14 June 2016. On 22 July 2016, the parties agreed that the enquiry would proceed on 14 September 2016 not 07 September 2016. He maintained that he knew nothing about the document at “C51”. His union representative informed him that they agreed with the presiding officer over the telephone that the enquiry would proceed on 14 September 2016.

17. He had no knowledge as to who appointed the presiding officer and initiator of the enquiry. The initiator was supposed to be appointed by the Respondent not the College Council. The appointment letters of the presiding officer and initiator were not provided during the enquiry on 14 June 2016 and 22 July 2016 respectively. He had no knowledge of the delegated authority. According to his knowledge the College Principal had the authority to investigate the alleged misconduct and the appointment of the presiding officer and the initiator must be done by the Respondent’s labour relations directorate.

18. Under re-examination he stated that the responsibility of the College Principal ends after the investigation of the alleged misconduct. He stated that the College Principal was not supposed to institute disciplinary action against him.

19. Under clarity question he stated that he attended the enquiry on 14 September 2016 and Mr. Mokhobo informed him that the enquiry continued on 07 September 2016. Mr. Mononye represented him on 14 September 2016. He was not aware of the unprotected strike on 01 to 05 February 2016.

Second Witness: Mr. Shadrack Mlangeni

20. The witness testified under oath that he is employed by the Respondent as a Lecturer (PL1). The document at “B1” was the notice of the enquiry and the Respondent alleged that he participated in an unprotected strike from 01 to 05 February 2016. He stated that on the days in question he reported for duty, signed the attendance register and assisted with the late registration. He signed the attendance register as per document at “B16” and he reported for duty from 07h30 to 14h50.

21. The time table was not completed during the week of the 01 to 05 February 2016. He only received the time table on 05 February 2016 as per document “B15”. The campus manager, Mr. Malakoane said the effective teaching and learning would commence on Monday, 08 February 2016. The document at “B15” was the time table signed by Mr. Malakoane on 05 February 2016. He had no knowledge of any time table issued prior to the 01 February 2016. He had no knowledge of the strike regarding the shortage of the text books. One could only be aware of the text books shortages during the commencement of the tuition.

22. The document at “C49” was the notice of the enquiry addressed to him for the enquiry to be held on 07 and 08 September 2016. He had no knowledge of the said notice. He denied the allegation to say that he refused to acknowledge receipt of the notice of the enquiry as per document at “C49”. Nobody came to him regarding the said notice. The enquiry that was held on 14 June 2016 was postponed to the 22 July 2016. He attended the enquiry on 22 July 2016, and he signed the attendance register as per document at “B19”. The enquiry of the 22 July 2016 could not take place because the presiding officer was not available. The parties agreed that the enquiry would proceed on 14 September 2016 with the consent of the presiding officer. On 14 September 2016, he went to the enquiry together with his representative Mr. Mononye. Mr. Mokhobo arrived and he said that the enquiry was held on 07 September 2016.

23. Under cross-examination he stated that since the Respondent employed him, he did not participate in an unprotected strike or refuse to render his services. He stated that there was late registration during the week of the 01 to 05 February 2016. It was not the lecturers’ responsibility to compile the tuition time table. He had no knowledge of the shortage of text books. The lecturers would only become aware of the shortage of text books when the tuition commences.

24. He denied the allegation to say that he refused to acknowledge receipt of the notice of the enquiry as per document at “C49”. He had no knowledge that Mr. Mabena came to their campus to address lecturers who withdrew their services.

25. Under re-examination he stated that he did not refuse to acknowledge receipt of the notice of the enquiry. He could not remember whether there were lecturers who had shortage of text books. He had no knowledge of the time table issued prior to the 01 February 2016. He denied the allegation to say that he demanded to take part in the drafting of the time table. He received the time table on Friday, 05 February 2016 and, the classes commenced on Monday, 08 February 2016.

Third Witness: Mr. Senekal Stephen Mokoena

26. The witness testified under oath that he is employed by the Respondent as a Lecturer (PL1). He stated that the enquiry that was supposed to be on 22 July 2016 was postponed to the 14 September 2016. The enquiry was postponed because of the non-availability of the presiding officer. The parties agreed that the enquiry would commence on 14 September 2016. On 14 September 2016, he went to the enquiry and on his arrival, he was informed by Mr. Mokhobo that the enquiry proceeded in his absence on 07 September 2016.

27. On 01 to 05 February 2016, he was at work and he was busy with the late registration of students. He even signed the attendance register as per document at “B16”. During that week, there was no effective teaching and learning at the campus. He knew nothing about the strike on the days in question. The time table was issued on 05 February 2016 as per document at “B15”. There was no other time table issued prior to the 05 February 2016. The time table must be issued before the commencement of the tuition.

28. The document at “C43-C44” was the notice of the enquiry addressed to him for the enquiry to be held on 07 and 08 September 2016. It was the first time during the proceedings he saw the said notice. He denied the allegation to say that he refused to acknowledge receipt of the notice of the enquiry.

29. Under cross-examination he confirmed that it was the first time he saw the document at “C43-44” at the proceedings. He maintained that nobody served him with this notice. It was an agreement that the enquiry would proceed on 14 September 2016. He confirmed that the enquiry was postponed from 22 July 2016 to 14 September 2016. He confirmed that he attended the enquiry on 14 September 2016 as agreed. There was no notification from his union representative stating that the date of the enquiry was changed from 14 September 2016 to 07 September 2016.

30. On 05 February 2016, he was given the time table by Mr. Wentzel. HOD. All the lecturers were called to the staff room to be given the time table. The effective teaching and learning commenced on Monday, 08 February 2016. He confirmed that he was busy with late registration from 01 to 05 February 2016. He submitted manual registration daily to Mr. Wentzel. The Respondent must prove that there was no late registration on the days in question. He denied the allegation to say that he reported for duty, signed the attendance register but he was not working.

31. Under re-examination he confirmed that there was late registration at the workplace, and he was busy with the late registration because it was part of his work. Most of the time, the time table was issued after the completion of the registration.

Fourth Witness: Mr. Siyabonga Mzolo

32. The witness testified under oath that he is employed by the Respondent as a Lecturer (PL1). He denied the allegation to say that he participated in an unprotected strike. He was at work from 01 to 05 February 2016 as per document at “B16”. During that week, he assisted with the late registration because the time table was not completed. The time table was issued on 05 February 2016 as per document at “B15”. He had no knowledge of the time table issued prior to the 01 February 2016.

33. The document at “C41” was the notice of the enquiry addressed to him for the enquiry to be held on 07 and 08 September 2016. He knew nothing about the said notice. He only knew about the enquiry that was supposed to be held on 14 September 2016. On 22 July 2016, the enquiry could not take place because the presiding officer was not available. Both the representatives Messrs. Tladi and Jack, phoned the presiding officer and he was informed that the enquiry would proceed on 14 September 2016. He denied the allegation to say that Mr. Mokhobo called them collectively to serve them with the notice of the enquiry to be held on 07 and 08 September 2016.

34. Under cross-examination he stated that the enquiry that was held on 22 July 2016 was postponed to 14 September 2016. He attended the enquiry on 14 September 2016. On his arrival Mr. Mokhobo informed him that the enquiry was held on 07 September 2016 in his absence. He confirmed that Messrs. Tladi and Jack informed him that the enquiry would proceed on 14 September 2016.

Fifth Witness: Mr. Mokgojane Abinar Nthoba

35. The witness testified under oath that he is employed by the Respondent as a Lecturer (PL1). He was at work from 01 to 05 February 2016 busy with the late registration. He was awaiting the time table to commence with the tuition. He also signed the attendance register as per document at “B17”. The time table was issued on 05 February 2016 as per document at “B15”. He had no knowledge of the time table issued prior to the 01 February 2016.

36. The document at “B19” was the attendance register of the enquiry held on 22 July 2016. The enquiry could not take place because the presiding officer was not available. Both representatives agreed that the enquiry would proceed on 14 September 2016 and he was accordingly informed. There was no one informed about the date except the 14 September 2016.

37. The document at “C45-46” was the notice of the enquiry addressed to him to be held on 07 and 08 September 2016. He knew nothing about the said notice. Most of the time the College opened after the first week of September. It would not be possible that Mr. Mokhobo could have served him with the notice of the enquiry on 17 August 2016 because the College was closed and he knew nothing about the strike. On 14 September 2016, he attended the enquiry, but he was informed that the enquiry was held on 07 September 2016 in his absence.

38. Under cross-examination he confirmed that he attended the enquiry on 14 June 2016, but it was postponed to the 22 July 2016. On 22 July 2016, again the enquiry could not take place because the presiding officer was not available. He was later informed by Mr. Jack, union representative that the enquiry would proceed on 14 September 2016.

39. He confirmed that the document at “C45-46” was not served to him. It would not be possible that Mr. Mokhobo could have served him with the notice of the enquiry on 17 August 2016 because the college was closed.

Sixth Witness: Mr. Fanie Erick Mokoena

40. The witness testified under oath that he is employed by the Respondent as a Lecturer (PL1). He was at work from 01 to 05 February 2016 as per document at “B17”. He denied the allegation to say that he participated in an unprotected strike. He was busy with the late registration on the days in question.

41. The document at “B19” was the attendance register of the enquiry held on 22 July 2016. The enquiry could not take place because the presiding officer was not available. The enquiry was postponed to the 14 September 2016. The document at “C35” was the notice of the enquiry addressed to him to be held on 07 and 08 September 2016. He knew nothing about the said notice. On 14 August 2016 the College was closed that the reason the enquiry was postponed to the 14 September 2016.

42. He attended the enquiry on 14 September 2016, but he was informed that the enquiry proceeded in his absence on 07 September 2016. He stated that Mr. Mokhobo did not serve him with the notice of the enquiry on 17 August 2016. There was no time table issued on 01 February 2016. The time table was issued on 05 February 2016 as per document at “B15”.

43. Under cross-examination he confirmed that the attendance register showed the time he arrived and time departed the workplace. The documents submitted at the registration would prove that he was busy with the late registration on the days in question. It would not be possible that Mr. Mokhobo could have served him with the notice of the enquiry on 17 August 2016 because the programme was closed.

44. Under re-examination he stated that he submitted the late registration documents to his supervisor.

Seventh Witness: Ms. Mosele Anna Moloi

45. The witness testified under oath that she is employed by the Respondent as a Lecturer (PL1). She was at work from 01 to 05 February 2016 as per document at “B16”. She denied the allegation to say that she participated in an unprotected strike. There was no strike on the days in question. It was late registration during the days in question.

46. There was no time table on the days in question. The time table was issued on 05 February 2016 as per the document at “B15”. She had no knowledge of the time table issued prior to 01 February 2016. The document at “B19” was the attendance register for the enquiry held on 22 July 2016. The document at “C57-C58” was the notice of the enquiry addressed to her to be held on 07 and 08 September 2016. She had no knowledge of the said notice.

47. Under cross-examination she stated that the document at “C57-c58” does not belong to her. She confirmed that the employee could be identified properly according to their persal number. The persal number and workplace appeared at document “C57” belongs to her. The hand-written notes on top of document “C57” referred to Mr. Moloi even though the contents talk about herself. She confirmed that she could not remember what happened on 22 July 2016.

48. She maintained that there was no strike from 01 to 05 February 2016. During the said week she was busy with late registration. The documents to show that she was busy with the late registration was in possession of the Respondent.

Eighth Witness: Mr. Matang Peter Pule

49. The witness testified under oath that he is employed by the Respondent as a Lecturer (PL1). He was at work from 01 to 05 February 2016 as per document at “B17”. During the said week, there was no teaching and learning because the time table was not complete. There was late registration at the workplace. He assisted with the late registration of the programme. Before the commencement of the tuition, there must be an induction and time table would be issued. The time table was issued on 05 February 2016 as per document “B15”.

50. He denied the allegation to say that he participated in an unprotected strike due to shortage of text books. The document at “B19” was the attendance register for the enquiry held on 22 July 2016. The enquiry could not take place due to non-attendance of the presiding officer. The enquiry was postponed to the 14 September 2016. On 14 September 2016, he attended the enquiry and he was informed that the enquiry was held on 07 September 2016 in his absence.

51. The document at “C59-C60” was the notice of the enquiry addressed to him to be held on 07 and 08 September 2016. He had no knowledge of the said notice. He denied the allegation to say that he refused to acknowledge receipt of the notice of the enquiry to be held on 07 and 08 September 2016. He did not meet Mr. Mokhobo about the said notice of enquiry.

52. Under cross-examination he confirmed that both representatives contacted the presiding officer telephonically. After the telephone conversation, Mr. Jack, union representative, informed him that the enquiry would proceed on 14 September 2016. He knew nothing about the enquiry that was held on 07 and 08 September 2016. He confirmed that he attended the enquiry on 14 September 2016 but Mr. Mononye, union representative, informed him that the enquiry was held in his absence.

53. He confirmed that he reported for duty from 01 to 05 February 2016. He stated that nobody could dispute that he did not report for duty and he was busy with the late registration. He submitted the late registration documents to the Respondent. He could not remember whether he met Mr. Mokhobo on 17 August 2016 but he did not receive the notice of the enquiry on 17 August 2016 as per document at “C59-C60”.

Ninth Witness: Basi David Mosia

54. The witness testified under oath that he is employed by the Respondent as a Senior Lecturer. He denied the allegation to say that he participated in an unprotected strike from 01 to 05 February 2016. He was in his classroom during the said period. The document at “B16” was the attendance register. It shows that he was on duty on the days in question. He was awaiting the time table that was issued on Friday, 05 February 2016 as per document at “B15”.

55. There was no industrial strike at their campus on the days in question. The time table for each trimester differs. He had no knowledge of the time table issued a week prior. He could not remember when the enquiry of the 14 June 2016 was postponed to. The document at “B19” was the attendance register of the enquiry held on 22 July 2016, and his name appeared on it. The presiding officer, did not attend the enquiry. He did not receive any letter from the Respondent regarding his case.

56. The document at “C47” was the notice to attend the enquiry on 07 and 08 September 2016. He denied the allegation to say that Mr. Mokhobo served him with the said notice of the enquiry and he refused to acknowledge receipt. No one informed him that the enquiry will be held on 07 and 08 September 2016.

57. Under cross-examination he confirmed that he could not remember the dates because this incident happened long time ago. He confirmed that he was in class from 01 to 05 February 2016 and Mr. Malakoane knew that he was in class. There was no head of department during that period and Mr. Malakoane was his immediate supervisor. He was alone in the classroom waiting for the time table. There was also late registration during that week and he was assisting with the late registration. He was at the gate together with Mr. Hoon, providing students with the registration forms.

58. He knew Mr. Mokhobo because he was the initiator at the enquiry. He denied the allegation to say that he was called to the office and he was served with the notice of the enquiry to be held on 07 and 08 September 2016. He could not remember the name of the presiding officer. Mr. Wentzel would not be telling the proceeding the truth by saying that he reminded them about the date of the enquiry.

59. Under re-examination he confirmed that it was only the dates that he could not remember. He knew nothing about been called to the office to be served with the notice of the enquiry. He had no knowledge whether Mr. Lephuthing phoned their representative, Mr. Jack. He denied the allegation to say that Mr. Lephuthing informed them that they must not acknowledge receipt of the notice of the enquiry. He maintained that they were not given the notice of the enquiry. He was not aware that Mr. Venter attended the enquiry.

RESPONDENT’S EVIDENCE

First Witness: Mr. Thomas Arnoldus Venter

60. The witness testified under oath that the Respondent employed him as a Lecturer. The Respondent charged him with misconduct for participating in an unprotected strike but he was found not guilty at the enquiry. He was served with the notice of the enquiry at the campus. He could not remember whether there were other employees present when he was served with the notice of the enquiry. There were other employees who attended the enquiry but he could not remember their names.

61. Under cross-examination he confirmed that he was charged with misconduct for participating in an unprotected strike. He stated that he did not participate in a strike and there was no strike.

62. Under re-examination he stated that he could not remember whether there was a strike at their campus.

Second Witness: Mr. Neville Hoon

63. The witness testified under oath that the Respondent employed him as a Lecturer, teaching carpentry (“NCV course”). Nated and NCV are different courses. They normally do the registration differently. They put tables at the gate to issue registration forms to the students. The NCV and nated would have different tables at the gate. He did not issue registration forms with Mr. Mosia. He could not remember what exactly happened during the first week of February 2016.

64. Under cross-examination he stated that the students would first approach them at the gate and they would indicate which course they intend to register and they would issue the registration forms to them. He could not remember who was at the table of nated at the gate. He confirmed that there was somebody at the nated table.

65. Under re-examination he stated that he could not testify of what happened at the nated table.

Third Witness: Ms. Petunia Van Heerden

66. The witness testified under oath that she was employed as a HR Practitioner on 01 May 2018. The Respondent previously employed her as HR Officer. Most of the time she would go with Mr. Mokhobo to issue documents to the Applicants. The document at “C39-C59” are notices of the enquiry addressed to the Applicants. She went with Mr. Mokhobo to the campus to serve the notices to the Applicants. The head of department, Mr. Mosala, called the employees who were going to be served with the notice of the enquiry to the hall.

67. Upon their arrival at the hall, Mr. Mosala introduced Mr.Mokhobo and herself to them and Mr. Mokhobo told them about their visits. Mr. Jovuka and Ms. Ramotsie stated that there was a problem with the dates of the enquiry because the campus would be closed. Mr. Mokhobo changed the dates of the enquiry and signed the amended notices. The initial notices of the enquiry were signed by Mr. Mabena, principal.

68. The Applicants were served with the notices of the enquiry on 17 August 2016 for the enquiry to be held on 07 and 08 September 2016. The Applicants refused to acknowledge receipt of the notice. Mr. Venter and Ms. Ramotsie acknowledge receipt. Mr. Lephuthing said to other Applicants that they must not acknowledge receipt before consulting with their union representative. Mr. Lephuthing later informed the other Applicants that he was advised not to acknowledge receipt of the notices as per document at “C39-C59”. They were notified about the dates of the enquiry.

69. Under cross-examination she confirmed that most of the time she accompanied Mr. Mokhobo to issue letters and she would issue the attendance register. She could not remember whether there was an attendance register on 17 August 2016. The document at C39-C59” were not changed three to four times. The dates of the said notices were changed once. On 17 August 2016, the Applicants were at work when the notices were issued to them.

70. She stated that each Applicant was given notice of the enquiry. She could not remember the initial dates of the enquiry. She wrote on each notice that they refused to accept and signed the notices. She stated that the Applicants collectively stated that they are not going to acknowledge receipt of the notice of the enquiry and they left the venue. They were given the notices and other threw it back.

71. She stated that there were no signatures to confirm that the notices were conveyed to them. There was no date on the notice of the enquiry confirming that the notices were served to them on a particular date. She maintained that the Applicants were called to the hall on 17 August 2016 to be served with the notice of the enquiry. It was human error to state that the notice was given to MP instead of PP Lephuthing as per document at “C51”.

72. Under re-examination she confirmed that there was no attendance register on 17 August 2016. The document at “C39-C59” could be taken as proof that the notices were given to them and they refused to acknowledge receipt on 17 August 2016. Mr. Mosala could confirm the names of the employees that were called to the hall on 17 August 2016.

Fourth Witness: Carel David Wentzel

73. The witness testified that he is employed by the Respondent as head of department but currently he is appointed as an acting campus manager at Bonamelo campus. He was the head of department for nated courses since from the year 2012. During the re-opening of the academic year in 2016, there was registration processes. They set registration programme indicating names to assist and allocated stations to work. During February 2016, the classes commences and the students complained that they are in classes but there was no effective teaching and learning.

74. He was instructed by Mr. Malakoane to investigate the students’ allegation, since the time table was issued. His investigation found that the Applicants complaint about the allocation of groups and there was no effective teaching and learning. He confirmed that this incident happened during the first week of February 2016. Mr. Mabena was called to the campus to clarify the allocation of groups to the Applicants. Mr. Mabena informed them that the time table was not going to be changed.

75. He was later summoned to appear before the enquiry as the witness and the enquiry was only attended by Mr. Venter. He stated that the Applicants knew about the date of the enquiry because they were served with the notice of the enquiry. On the morning of the enquiry at the briefing session he reminded them about the enquiry. He was also present when Ms. Phomolo was requested to phone the Applicants to come to the hall because Mr. Mokhobo and Ms. Petunia was there. He testified at the enquiry of Mr. Venter and he was found not guilty.

76. Under cross-examination he confirmed that he was currently the acting campus manager of Bonamelo College. He is the head of department for nated programme at the Campus. They started with the registration of student during January 2016 and he could not remember when the registration was completed. He stated that there was no late registration. He was aware that there were tables at the gate during the registration. The classes commenced after the registration but he could not remember the date of the commencement of the classes.

77. There was no effective teaching and learning in certain classes. The lecturers had problems with the top management structure and allocation of classes. It was an ongoing problem from the previous year. They had a problem with the Principal at the moment and the union that was involved was SALIPSWU. He had no knowledge who were the lecturers that belonged to that union. He could not say who was involved from a particularly union but they supported each other.

78. There was no official strike but the lecturers did not go to their respective classes. The lecturers assisted the student at the gate during the official registration period. The time table was available after the closing of the registration. The available time table was in dispute and he had no knowledge what happened to that time table. The time table was changed after four weeks. The time table changes if there was a clash of subjects. The document at “B15” was the time table for trimester 2016 and there were five groups. He could not remember when this table time was issued. He maintained that there were other time tables issued prior to this one at “B15”. He maintained that the time tables were completed and provided to the Applicants.

79. The lecturers were called to discuss the time table at the morning sessions. There was an individual problem regarding the time table. The initial problem was group allocation of subjects. The time table problem was resolved with the lecturers. They were told that the groups will remain from six groups and they must go back to their respective classes. He could not remember when Messrs. Mabena and Tsotetsi had a meeting with the lectures.

80. The Applicants were informed about the venue and date of the enquiry. The initial enquiry was on 14 June 2016 at the central office in Phuthaditjhaba. It was only Mr. Venter who attended the enquiry. He could only remember the enquiry he attended at the central office. He could not remember other enquiries. He was asked to call the lecturers at the office to be served with the notice of the enquiry and he asked the secretary to call them. He confirmed that Ms. Petunia and Mr. Mokhobo were present.

81. He maintained that the Applicants were not in their classes during the days in question and there was no late registration. He maintained that other time tables were issued prior to the 05 February 2016. It was possible that certain students did not have text books. No effective teaching and learning were stopped because of the shortage of text books.

82. Under re-examination he stated that he only appeared at the enquiry when he was going to give evidence. He was instructed by Mr. Malakoane to find out whether the lecturers were in class and his findings were that there were no lecturers in class. The document at “B15” was the final time table. He maintained that there was no late registration during the year 2016. The purpose of Mr. Mokhobo’s calling the Applicants were to serve them with the notice of the enquiry. The Applicants were reminded about the enquiry in the morning session but they failed to attend the enquiry.

Fifth Witness: Maruping Jacob Marumo

83. The witness testified under oath that he was the presiding officer of the enquiry against the Applicants and Mr. Mokhobo was the initiator. The enquiry was held on 07 September 2016 at the central office in Phuthaditjhaba at 10h00. He asked Mr. Mokhobo whether the Applicants were coming to the enquiry and Mr. Mokhobo replied by saying he was still waiting for them. There were no Applicants at the commencement of the enquiry even after 30 minutes grace period. He satisfied himself whether the Applicants were notified about the date of the enquiry and Mr. Mokhobo issued prove of service.

84. He noticed that the Applicants did not sign the notice of the enquiry. He requested the reasons for not signing the notice of the enquiry whereas they signed the previous notices. Mr. Mokhobo replied by saying they were served with the notice and they threw them on the table and they left them there. He continued with the enquiry in the absence of the Applicants. This enquiry was postponed twice previously on 14 June 2016 and 22 July 2016 with the request of the Applicants union.

85. Under cross-examination he confirmed that Mr. Mokhobo represented the Respondent at the enquiry on 14 June 2016. The Applicants union applied for the postponement of the enquiry and it was granted. They proceeded with the enquiry of Mr. Venter. On 07 and 08 September 2016, it was supposed to be the enquiry of the Applicants. The Applicants did not attend the enquiry. Mr. Wentzel said he reminded them about the enquiry during the morning session. There were no valid reasons provided for their absence. The document at “C39-C40” was the notice of the enquiry.

86. It was impractical for the Applicants to acknowledge receipt because they left the notice on the table and left the premises. The Applicants’ notices of the enquiry were written on top. He could not remember whether the appointment letter of the initiator was submitted during the enquiry. The initiator on 07 September 2016 was Mr. Mokhobo and Mr. Tladi was the initiator as per the document at “B19”. It was the Respondent decision to appoint the initiator. The enquiry was postponed twice prior to the 07 September 2019.

87. Under re-examination he stated that he satisfied himself that the notices of the enquiry were served to the Applicants. They were reminded about the enquiry during the morning session on 07 September 2019. There was no valid reason provided at the enquiry for their absence.

Sixth Witness: Mr. Veli Eric Mabena

88. The witness testified under oath that the Respondent employ him as a Principal at Maluti TVET College. He stated that at the commencement of the 2016 academic year he gave the instruction that each lecturer will have six period per day. Around February 2016, it came to his attention that there were no effective teaching and learning at the Campus and he went there to address them. Some of the Applicants were part of the meeting.

89. He informed them that it was the management directives that each lecturer will have six periods per day. He was informed that the time table drafted by them had five periods. He could not remember the exact date in February 2016. The time table was already drafted and available. The classes commenced while the late registration continues.

90. Under cross-examination he stated that each lecturer was having five periods per day during the year 2015. The instruction was that from the year 2015, all lecturers must have six periods. The complaint of the lecturers during the year 2016 was the same as the previous year. The issue of six periods was dealt with during the year 2015. He was not sure whether they had six periods during the year 2015. The lecturers brought their own alternative time table. They did not want to comply with the time table provided to them.

91. There was no effective teaching and learning at the Campus for the whole of February 2016. Other lecturers were teaching the students. He confirmed that during the first week of February 2016, the registration was not fully completed. He could not dispute the Applicants version to say that nated programme was busy with late registration but teaching was continuing. The lecturers were expected to assist students with the programme. He maintained that there was other time table provided to the Applicants prior to the 05 February 2016.The document at “B15” was the altered time table dated 05 February 2016 that includes admin as period six. He stated that the Applicants embarked on an unprotected strike.

92. Under re-examination he stated that the time table changes comes in during the year 2015. There was dissatisfaction from the lecturers about time table changes. There were lecturers on and off the strike and the Applicants were part of the strike. Lecturing took priority during the late registration. He maintained that the document at “B15” was tampered with and its authenticity was in dispute.

Seven Witness: Mr. Mosiuoa David Mokhobo

93. The witness testified under oath that the Respondent employ him as the Deputy Principal at Motheo TVET College. He was previously employed as an HR Manager at Maluti TVET College. He stated that the lecturers did not want to teach during the year 2016 and the Principal instituted disciplinary action against them. He was the initiator at the enquiry. He led evidence during the enquiry and it was completed and the Applicants did not attend the enquiry.

94. He was the one who served the Applicants with the notice of the enquiry. He was with the HR Officer, Ms. Petunia when he went to the Campus to serve them with the notice. The Lecturers were called to the boardroom and he served them with the notice. It was established later that the initial date of the enquiry conceded with the closure of the campus and the notice of the enquiry was signed by the Principal. He could not remember the initial date of the enquiry.

95. He had to change the date and he took back the initial notices from the lecturers. He phoned the presiding officer, to request him the alternative date for the enquiry. He also phone the Principal about the amended date of the enquiry. The Principal agreed with the changes and he was given the authority to sign the notice of the enquiry. The date was changed to the 07 and 08 September 2016. The documents at “C39-C40” was the notice of the enquiry signed by him. He expected the lecturers to acknowledge receipt of the notices but they failed to do so.

96. Messrs. Lephuthing and Mlangeni went out of the boardroom to phone someone and on their return Mr. Lephuthing said that Mr. Jack said that they must not acknowledge receipt of the notice of the enquiry. Some of the lecturers hand back the notices, others threw them on the floor and they went outside. He instructed Ms. Petunia to write on top of their notices that they refused to sign. While serving them with the notices, he verbally told them about the date, venue and time of the enquiry.

97. Under cross-examination he stated that he could not remember the date he visited the Campus to serve the notices of the enquiry. The lecturers were chaotic because they did not want those notices. He spoke louder when he informed them about contents of the notice of the enquiry while they were busy leaving the boardroom. He maintained that he went to the Campus to serve the lecturers with the notice. During the date of the enquiry, he phoned Mr. Wentzel requesting him to remind the lecturers about the enquiry.

98. The document at “B45” was the collective agreement 1 of 2003. The document at “C40” was not signed by fellow employee. He confirmed that the signing of the document at “C40” was not in compliance with the collective agreement and he was appointed as the initiator. When he instituted disciplinary action against the Applicants, he sourced another person from the Basic Education, Mr. Tladi. The document at “B19” was the attendance register of the enquiry held on 22 July 2016. He maintained that as a HR Manager, he was appointed as an employer’s representative.

99. The lecturers did not want to go and teach because they were disputing the time table. They wanted to reduce the periods from six to five. Their main issue was the time table. During November 2015, they made contingency time table and it would be changed as per the number of enrolled students. The Respondent said even if there was one student in class after registration, they must go and teach. He maintained that there were other time tables provided to the Applicants before the one at document “B15”.

100. The registration of students was already completed prior to the week of the 01 to 05 February 2016. There was a decision taken that the late registration could not disrupt effective teaching and learning. The document at “B21” was the circular from the Respondent and the document at “B23” was the responsibility of the labour relations officer. He and the presiding officer were not appointed as per the circular from the Respondent. According to the delegation of authority, the Principal had the power to institute disciplinary action to the lecturers from post levels 1 to 3. The presiding officer of the enquiry was from the South African Council of Educators (“SACE”). There was a confusion about the employment status of Maluti TVET College employees. The Director: Labour Relations, Mr. Slatter, said all employees belongs to the College.

101. The document at “B15” was from the nated programme. On 14 September 2016, he attended the skills development meeting at central office in Phuthaditjhaba. He was called outside and he met the Applicants with their representative Mr. Mononye. They informed him that they came to the enquiry as agreed in the previous sitting. He maintained that Mr. Tladi was not representing the Respondent. They phoned the presiding officer about the date but he could not remember the agreed date. The date they agreed initially, they Applicants did not attend and Mr. Jack said that it was not the agreed date.

102. Under re-examination he stated that the Applicants were post level 1 and the Principal has delegated powers to institute disciplinary action against them. It was not the first time on 07 September 2016, the Applicants not attending the enquiry. He was working with Mr. Tladi as a team and he served the Applicants with the notice of the enquiry on 17 August 2016.

Eight Witness: Ms. Matshidiso Millicent Ramotsie

103. The witness testified under oath that she was employed by the Respondent as a Lecturer at the Campus. She knew the Applicants and they were colleagues. The nated lecturers had issues regarding the time table that includes the Applicants. The time table was changed from four to six groups and there was lack of resources and text books for the students. There was no effective teaching and learning during the period 01 to 05 February 2016. They did not go to the classes because their issues were not addressed.

104. They were sitting at the staff room and other waited outside. During the registration, all lecturers would go to the registration. Their time table was based on a number of student’s intake. After the completion of the registration, lecturers were expected to go to the classes. She confirmed that late registration do happened at their campus. During the morning sessions, the campus management would indicate who must do the late registration. The classes would commence pending the number of students. Not all the lecturers would do the late registration. She could not remember who was doing the late registration. The time table was present because they used the previous term’s time table. They had a problem with the introduction of the new time table from the year 2016. The Respondent management visited the campus and they were told that the time table would consist of six groups. All the Maluti TVET campuses were going to use six group.

105. She received a phone from the receptionist to come to the boardroom. Mr. Mokhobo served the notice of the enquiry to them individually including the Applicants. The dates of the initial notice were during the closure of the nated programme. They informed Mr. Mokhobo that the date conincided with the closure of the nated programme and Mr. Mokhobo changed the dates. The initial notices were taken back and they were served with the new notice of the enquiry. She did not acknowledge the receipt of the notice because it was signed by Mr. Mokhobo not the Principal. The nated lecturers were working as a team and as a team, they refused to acknowledge receipt of the notice of the enquiry and they left the boardroom. The inception as per document at “C39-C60” was correct to say that they refused to sign the notice of the enquiry. She does not know whether Mr. Mokhobo read the contents of the notice of the enquiry to them.

106. Under cross-examination she stated that most of the time when they arrived at work, they signed the attendance register and they would stay at the staff room and/or outside doing nothing. She denied the allegation to say that when they arrived at work, they would sign the attendance register, left the campus premises and came back later to sign off. She confirmed that they were supposed to use the time table of the previous term. The new time table was introduced to them during the year 2016.

107. The first time table was having six group without admin and the time table at document “B15” was changed one that includes the admin group. At the commencement of the classes, they used the previous term time table because they were not sure about the number of students. They were given contingency time table to be used at the commencement of the academic year 2016. The time table at document “B15” was issued to them by the management. The first two weeks of January 2016 was for registration and the first week of February 2016 was the commencement of the classes. The campus management would inform lecturers who would be involved with the late registration. She could not dispute whether Messrs. Mzolo and Mlangeni assisted with the late registration.

108. The call tech system would tell how many students would be in classes and whether there would be text books shortages. There was a problem of text books from the previous year. They embarked on the go slow due to shortage of text book during the year 2016. She did not attend any enquiry at the old parliament. She does not know when the cases of SALIPSWU members was completed. She maintained that Mr. Mokhobo issued notices of the enquiry to all the lecturers to attend the enquiry. It was not true that the lecturers that belongs to PSA were not given notice of the enquiry by Mr. Mokhobo and Ms Petunia.

109. Mr. Mokhobo gave individuals notices of the enquiry, they left the notices on the table and leave the boardroom. The dates were not changed due to her non-availability. The dates of the enquiry were changed because the nated programme would be closed. The nated programme always closes during August to September 2016. She was not sure whether their programme was closed on 17 August 2016. They did not take the notice of the enquiry because it was signed by Mr. Mokhobo not the Principal.

110. Under re-examination she stated that the only meeting she attended with the Applicants was where they were given the audi letters. It was reasonable for Mr. Mokhobo to change the dates because the nated programme would be closed. She denied the allegation to say that there was no time table on 01 February 2016. The time table was supposed to have six groups. They disputed the time table of having six groups. She maintained that they were not in classes for the period 01 to 05 February 2016.

Nine Witness: Mr. Motlalepula Elias Tsotetsi

111. The witness testified under oath that the Respondent employ him as the Deputy Principal: Academic. At the commencement of the nated programme classes there were no effective teaching and learning as expected. They went to the campus to address the issues of the lecturers and their issue was the time table. The academic board took a decision that the time table would have six groups. Each campus of Maluti TVET would have standing time table from the previous term, pending the final intake of the students. There was an expectation that all lecturers should be in class, teaching. If the classes commenced, the late registration would happen after 12h00 and not all lecturers would be involved. He confirmed that teaching and learning would not be compromised because of the late registration.

112. Under cross-examination he stated that classes were supposed to commence two weeks after the college re-opens. He confirmed that the lecturers were supposed to use the time table of the previous year. On 01 February 2016, the previous year time table was available. The nated programme lecturers were supposed to use the time table of the previous year. The new table time would come in after the late registration was completed.

113. He maintained that all lecturers had the time table of the previous year. The document at “B15” was the time table of the Campus issued on 05 February 2016 and signed by Mr. Malakoane. Mr. Wentzel was the head of department for nated programme. He confirmed that teaching and learning was a priority and late registration would starts after 12h00.

114. Under re-examination he maintained that teaching and learning would not be compromised because of the late registration. There was no effective teaching and learning for nated programme for the period 01 to 05 February 2016.

APPLICANTS’ ARGUMENT

115. The Applicants’ representative stated that the Applicants attended the previous enquiries on 14 June 2016 and 22 July 2016 respectively. The appointment of Messrs. Marumo and Tladi as initiator and presiding officer were not in terms of ELRC Collective Agreement 1 of 2013 and there were no appointment letters issued. It was ostensible during the testimony of Mr. Mokhobo that both the initiator and the presiding officer were not appointed as per the circular which set out all the delegations pertaining to the appointments of the initiator and presiding officer. Mr. Mokhobo was not the initiator during the enquiry against the Applicants.

116. It was corroborated testimonies of the Applicants that the enquiry was postponed from 22 July 2016 to 14 September 2016. Mr. Mokhobo confirmed that the enquiry was postponed to the 14 September 2016 by parties’ agreement. The Campus were closed from 31 July of each year and the Applicants were not at work on 17 August 2016. The Respondent failed to provide documentary evidence that the campus was opened on 17 August 2016. Therefore, the Applicants were not served with the notice of the enquiry to be held on 07 September 2016.

117. It was proven during the proceedings that the Applicants were at work and they signed the attendance register. There was no teaching and learning during the period 01 to 05 February 2016 because there was late registration. The Applicants were involved in the late registration. The time table was only issued to them on 05 February 2016 at around 12h00 and they started teaching on 08 February 2016. The Respondent’s witnesses contradicted themselves on all material facts of the case. Their cross-examination was inconsistent with their evidence in chief.

RESPONDENT’S ARGUMENT

118. The Respondent’s representative stated that the Applicants failed to produce any documentary evidence to support their claim that they were assisting with the late registration. Instead their excuse was that such documents are in the possession of the Respondent. The Applicants could have subpoenaed the Respondent to provide them with the documents. It was the Respondent humble submission that sufficient and uncontested evidence was tendered by Mr. Wentzel.

119. The Applicants were properly served with the notice to attend the enquiry on 07 and 08 September 2016. The Applicant failed to call the campus manager, Mr. Malakoane to come and testify about the time table issued on 05 February 2016. Even if there was late registration it could not be correct that the majority of the nated course lecturers could all be assisting. This was so in that late registration usually concerns a few students. The late registration was only permitted after twelve and the Applicants had falsely testified that they were busy with it in the morning.

120. The testimony of the individual Applicants needs to be rejected as it was not of truthful and that they painstakingly tried to tailor make their evidence as they went along. It is therefore the Respondent humble plea that the Applicants claim be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT

Introduction

121. Section 186(2)(b) of the Labour Relations Act, (“the Act”), states that ‘unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving – unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.

122. The onus to establish that the conduct complained of constitutes an unfair labour practice within the meaning of Section 186(2) of the Act rests on the Applicant. The Applicants must therefore be able to lay the evidentiary foundation for their claim of an unfair labour practice. In discharging the onus, the Applicants led the evidence of nine (9) witnesses.

123. The following are brief reasons for the award:

Procedural fairness

Whether the enquiry was postponed to 14 September 2016?

124. It was the Applicants’ undisputed evidence that the enquiry was postponed from the 22 July 2016 to 14 September 2016. The Respondent did not put their version to the Applicants whether or not the enquiry was postponed to the 14 September 2016. The Respondent witness, Mr. Mokhobo, testified that on 14 September 2016, he attended the skills development meeting at the central office at Phuthadijhaba. He was called outside and he met with the Applicants and their representative, Mr. Mononye. They told him that they were there for the enquiry as agreed in the previous sitting. He informed them that the enquiry was held on 07 September 2016 in their absence. The Respondent did not rebut the Applicants’ version to say that the enquiry was postponed to the 14 September 2016.

125. It is worth noting that no questions were posed to the Presiding Officer, Mr. Marumo, as the witness, whether there was an agreement to postpone the enquiry to the 14 September 2016. I therefore, concluded that the parties agreed to postpone the enquiry to the 14 September 2016.

Whether the Applicants were served with the notice of the enquiry?

126. The Respondent did not provide any justifiable or acceptable reason at the proceedings for deviating from the agreed date of the 14 September 2016. There was also no evidence led that there was an agreement to change the date of the enquiry from 14 September 2016 to 07 and 08 September 2016.

127. It was the Applicants’ version that they knew nothing about the enquiry to be held on 07 and 08 September 2016. They further said that they were not served with the notice of the enquiry. It was the Respondent version that the Applicants including other lecturers were served with the notice of the enquiry but they refused to acknowledge receipt. The Respondent further stated that the Applicants were informed about the dates, time and venue of the enquiry.

128. It was Ms. Ramotsie’s evidence that she was the nated course lecturer together with the Applicants. The nated lecturers were working as a team and as a team, they refused to acknowledge receipt of the notice of the enquiry and they left the boardroom. The inception as per document at “C39-C60” was correct to say that they refused to sign the notice of the enquiry. It was clear that the Applicants and other lecturers were served with the notice of the enquiry on 17 August 2016.

129. Mr. Mokhobo, the Respondent’s witness, stated that some of the lecturers handed back the notices, others threw them on the floor and they went outside. He further stated that he spoke louder when he informed them about contents of the notice of the enquiry while they were busy leaving the boardroom. Sub-paragraph 5.1(h) of Annexure B of the collective agreement 1 of 2013 as per document “B45” states that if the employees refuses to sign for the receipt of the notice, it must be given to the employee in the presence of a fellow employee, who must sign in confirmation that the notice was conveyed to the employee. Based on the evidence presented during the proceedings, it was clear that the Applicants and other lecturers threw back the notices to the Respondent and they left the boardroom.

130. The Respondent acted completely contrary to a binding Annexure B of the collective agreement on how to convey the notice if the employee refused to sign. Therefore, the notice was not conveyed to them as per the disciplinary code and procedure.

Whether the Presiding Officer and Initiator were appointed properly?

131. The Respondent’s Human Resource Circular 13 of 2015, (“the HR Circular”) states that officials appointed in the Labour Relations Directorate have the following specific responsibilities to appoint initiators and presiding officers for disciplinary hearings, as per document “B23”. It was Mr. Mokhobo’s evidence that he and Mr. Marumo as both the initiator and the presiding officer were not appointed as per the HR Circular. Mr. Mokhobo further testified that there was a confusion about the employment status of Maluti TVET College employees. The Director: Labour Relations, Mr. Slater, said all employees belongs to the College.

132. I do not agree with Mr. Mokhobo’s version regarding the status of the Applicants because it was undisputed evidence that the Applicants were absorbed by the Respondent on 01 April 2015. Therefore, when the alleged misconduct was committed the Applicants were employed by the Respondent. There was no evidence before the proceedings explaining or justifying the reason the Council deviated from the HR Circular, because it clearly stated the responsibilities of each employees.

133. It is worth noting that the appointment letters of the initiator and presiding officer were not submitted as evidence in order to ascertain who appointed them. I, therefore, conclude that the initiator and presiding officer were not appointed as per the HR Circular.

Who has the authority to sign the notice of the enquiry?

134. It was the Respondent version that after serving the lecturers with the notice of the enquiry, Ms. Jovuka and Ms. Ramotsie informed Mr. Mokhobo that the dates clash with the closure of the campus or nated programme. Mr. Mokhobo took back the notices from the lecturers, amended the dates and signed the new notices after consulting the Principal.

135. The initial notices were signed by the Principal as per the delegated powers as per “B24”. The Principal has delegated powers to institute disciplinary action against employees on salary levels 1-3. It is common cause that the Applicants were on salary levels 1 to 2, therefore, the Principal has the powers to institute disciplinary action against them.

136. The notice of the enquiry to be held on 07 and 08 September 2016 was served to the Applicants on 17 August 2016. According to the disciplinary code and procedure the Applicants must be given written notice at least five working days before the date of the hearing. In this matter, the Respondent has an ample time to serve the Applicants including other lecturers with notice of the enquiry. There was no reason provided during the proceeding why the Respondent was in the hurry to serve the Applicants with the notice on 17 August 2016. Mr. Mokhobo should have went back to the office and drafted the new notice and allow the Principal to sign them.

137. The Principal was one of the Respondent’s witnesses but no question was posed to him whether he gave Mr. Mokhobo permission to sign the notice on his behalf. The Principal has no authority to delegate further the delegated powers except if someone was acting in his position. I, therefore, come to the conclusion that Mr. Mokhobo has no authority to institute disciplinary action against the Applicants.

Substantive fairness

Charge against the Applicants

138. The Applicants were charged with one count of misconduct and was as follows “They contravened the provisions of Annexure B (disciplinary code and procedures for employees hereafter referred to as lecturers), in that on 01 February 2016 to 05 February 2016, they participated in an unprocedural, unprotected/or unlawful industrial action in that on the day in question, they did not avail themselves for learning and teaching at the college and it is believed that they were unlawfully withdrew their services fully or partially and they breached the provisions of Annexure C clause 30”. The Applicants denied the allegation against them.

Whether the Applicants participated in an unprotected strike?

139. Section 213 of the Labour Relations Act defines the strike as the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.

140. In this matter, the Applicant bears the onus to prove that they did not participate in an unprotected strike and the Respondent’s conduct constituted an unfair labour practice. It is common cause that during the period 01 to 05 February 2016, there was no effective teaching and learning at the Campus.

141. It was the consistent and corroborated Applicants’ version that during the days in question, there was no effective teaching and learning because of the late registration. They reported for duty as normal and assisted with the late registration. It was further their version that the time table was provided to them on Friday, 05 February 2016 and the classes commenced on Monday, 08 February 2016.

142. It was the Respondent’s version that the students were in classes but there was no effective teaching and learning. The Applicants withdrew their services because they complained about the top management structure and allocation of six groups in the time table. They had a problem with the time table issued to them prior to the 05 February 2016. The Applicants complained about the lack of resources at the campus and shortage of text books. The time table was available during the first week of February 2016, because they used the previous year time table pending finalisation of the student intake. The academic board took a decision that the time table would consist of six groups.

143. When cross-examining the Applicants as witnesses, the Respondent representative did not put the Respondent’s versions regarding the said allegation to them, in order for them to be given an opportunity to explain.

144. Hoffman & Zeffert states the following: In the South African Law of Evidence, Fourth Edition at pages 461 and 462, with regards to failure to cross-examine: “if a party wishes to lead evidence to contradict an opposing witness, he/she should first cross-examine him/her upon the facts which he/she intends to prove in contradiction, so as to give the witness an opportunity for explanation”. Failure to cross-examine may therefore prevent a party from later disputing the truth of the witness’s evidence. However, it must be stressed that judicial officers have a duty to assist illiterate, simple, and undefended persons in putting their evidence during cross-examination.

145. Adv. Dhlamini, is a legal person, and cannot be said to be illiterate, simple, or an uneducated person. One of his main duties is to represent his employer in arbitration proceedings and he does this frequently. He therefore knows he should put his employer’s versions to the Applicants. This leaves me in a position where I have not heard the Respondent’s version regarding the said allegation.

146. It is worth noting that the Respondent does not know exactly what happened on the days in question. It was the Respondent’s version to the Applicants during their cross-examination that they would arrive at the campus, signed the attendance register, leave the campus premises and come back later to sign off. They refused to acknowledge receipt of the time table because they wanted to be involved in the drafting of the time table. When they lead evidence each Respondent witness came up with his or her own version of what happened on the days in question.

147. The standard of proof was that of a balance of probabilities. Proof that the employee actually committed the offence charged presupposes a proper investigation of the allegation against the employee, and the presentation of evidence that links the employee with the offence. Proof on a balance of probabilities means that the evidence points more probably to the conclusion that the employee committed the alleged misconduct, than to his/her innocence. However, a mere suspicion of guilt does not satisfy the test of proof on a balance of probabilities. If the Applicants were proven to have committed the alleged misconduct, it would have been very serious misconduct. The Respondent’s failed to prove that the Applicants participated in an unprotected strike. The evidence presented by the Respondent cannot sway my mind in a different direction. I accordingly find the Applicants did not commit any act of misconduct.

Conclusion

148. The disciplinary action short of dismissal against the Applicants was both procedurally and substantively unfair.

Remedy

149. The Respondent found the Applicants guilty of misconduct and imposed a sanction of a one-week suspension from work without pay and final written warning. The Respondent’s conduct, constituted an unfair labour practice. I will therefore order the Respondent to reimburse the Applicants the imposed one-week suspension without pay to the total amount of R22 743, 41, and should be divided as follows:

PP Lephuthing: R2 753, 58
S Mlangeni: R2 699, 30
AM Nthoba: R2 467, 97
S Mzolo: R2 467, 97
MP Pule: R2 083, 97
FE Mokoena: R2 083, 97
BD Mosia: R3 430, 68
MA Moloi: R2 083, 97
SS Mokoena: R2 672, 00

AWARD

150. The Applicants, PSA obo Lephuthing PP and eight others, proved that they suffered an unfair labour practice relating to a disciplinary action short of dismissal in the hands of the Respondent.

151. The Respondent, Department of Higher Education and Training, is ordered to reimburse the Applicants the total amount of R22 743, 41, this being the sanction of one-week suspension from work without pay that was imposed on them, and which must be divided as per paragraph 150 above. The reimbursement must be paid into the Applicants bank account, the details of which are known to the Respondent, by no later than 15 November 2019.

Signature:
Panelist: Khuduga Tlale