Arbitrator: Minette van der Merwe
Case Reference No.: ELRC 378-24/25 FS
Date of award: 10 November 2025

In the Arbitration between:

National Education, Health and Allied Workers’ Union (“NEHAWU”)
obo Mamono Adelina Mofokeng Applicant

and

Department of Higher Education and Training (DHET) – Free State Respondent

DETAILS OF HEARING AND REPRESENTATION

1. This is the arbitration award in the matter between NEHAWU on behalf of Mamono Adelina Mofokeng (the Applicant) and the Department of Higher Education and Training (DHET) – Free State (the Respondent), which was held on 18 August 2025 at the Welkom TVET College in Welkom, and 27, 28 and 29 October 2025 at Welkom TVET College and virtually.
2. The Applicant was represented by Mr George Ncape, union official. The Respondent was represented by Mr Bongani Sibiya, Assistant Director: Human Resources Management.
3. The proceedings were digitally recorded on all dates, and handwritten notes were kept. Mr Themba Tshabalala was available for interpretation services.
4. On 27, 28 and 29 October 2025 the arbitration proceeded in the absence of the Applicant.

PROCEEDING IN THE ABSENCE OF THE APPLICANT ON 27, 28 AND 29 OCTOBER 2025

5. On 26 October 2025, at 9h47, I sent an e-mail to the ELRC case management, the Applicant, Mr Ncape and Mr Tshabalala in terms of which I informed parties that I would not be able to travel to Welkom due to a family emergency, which necessitated me to remain in Bloemfontein. I requested Mr Ncape to forward the e-mail to Mr Sibiya, as I did not have his e-mail address at that time. I indicated that I would join proceedings virtually at 10h00, but that parties would still attend proceedings physically at the TVET College, as scheduled. In the e-mail, my personal cellular number was included.
6. I created a link on MS Teams and included the link in the aforementioned e-mail.
7. On 27 October 2025 (the morning of the arbitration), at 8h49 Mr Ncape responded and indicated that the Applicant objected to me not being physically present, and that reasons would be formally provided to the Council. The matter started at 10h00, as scheduled, and I waited until 10h48 for the Applicant and/or her representative, Nr Ncape, to either join proceedings virtually or arrive at the venue to address me on the objection that they indicated they would raise. By 10h50, I had received no further e-mails from Mr Ncape, the Applicant or the ELRC that such written submissions were made in support of the objection, and no calls were received, either through the ELRC or on my personal number, explaining the absence of the Applicant.
8. Accordingly, arbitration proceeded in the absence of the Applicant at 10h50. Section 138(5)(b) of the LRA empowers me with the discretion to continue with the arbitration in the absence of the Applicant, where the Applicant was properly notified of proceedings. In this instance, the Applicant was properly notified of proceedings and had in fact not only agreed to the dates but had sent an e-mail to confirm receipt of my e-mail sent on the previous date. Due to evidence having already been led on 18 August 2025, the dismissal of the matter would not have been appropriate, and the arbitration continued.
9. An e-mail was sent to me around 11h24 on 27 October 2025, in terms of which I was informed by Mr Ncape that he has been struggling to log in to the virtual proceedings. By that time, he had still not arrived at the venue, or contacted me telephonically, and the Respondent had continued to lead evidence through its witnesses. I once again state that my e-mail was clear that parties were to attend the arbitration at the Welkom TVET College, as scheduled, hence there was no need for Mr Ncape to have struggled to log in, because he needed to be at the venue. On 28 October 2025 the arbitration proceeded at 09h55 in the absence of the Applicant. At approximately 11h00 Mr Ncape arrived at the venue and indicated that it had addressed its objections to the ELRC on the previous day, but no such application was brought to my attention by the ELRC. Mr Ncape sought clarity on whether the arbitration would be finalized without the Applicant, which I confirmed. Mr Ncape was requested to leave the venue so that the arbitration could proceed.
10. It was clear that Mr Ncape was, indeed, in Welkom on 27 October 2025, and could have gone to the venue at 10h00 to address me on his objections, but he failed to do so. He was able to arrive at the venue on 28 October 2025 and address me on record with his concerns. The Applicant herself never joined proceedings, either virtually or physically at the venue, and did not communicate the reasons for her absence.
11. Neither Mr Ncape nor the Applicant made any attempt to address me on record on 27 October 2025 as to why the matter should not proceed. Accordingly, I proceeded with the arbitration in terms of section138(5)(b of the LRA, as the Applicant had proper notice of proceedings, and failed to attend.

ISSUE TO BE DECIDED

12. The dispute was referred in terms of section 191(5)(iii) of the Labour Relations Act, 66 of 1995, as amended (the LRA), as a claim of unfair dismissal related to misconduct.
13. Both the procedural and substantive fairness of the dismissal was challenged.
14. In the event that I found in her favour, the Applicant sought to be retrospectively reinstated.

BACKGROUND TO THE ISSUE

15. As a result of the narrowing of the issues on 18 August 2025, on record, the following facts were common cause:
    i. The Applicant commenced employment with the Respondent on 16 May 2005
    ii. At the time of her dismissal, she held the position of Campus Manager: Welkom TVET College, since 2016
    iii. She had been a Campus Manager since 2010 in Gauteng Province
    iv. The Applicant was dismissed on 21 June 2023
    v. The Applicant did not attend the disciplinary hearing on 13 April 2023
    vi. She earned a basic salary of R 52 984.50 (fifty-two thousand nine hundred and eighty-four rand, fifty cents) per month at the time of her dismissal
    vii. The Applicant was found guilty and dismissed on all four charges levelled against her
    viii. The Applicant was employed in terms of the Employment of Educators Act, 76 of 1998, as amended
    ix. The Applicant had a clean disciplinary record
    x. The Applicant appealed the outcome, and the dismissal was upheld by the appeals authority.
16. The Applicant challenged the fairness of her dismissal as follows:

a) Procedural fairness:
i. Whether the Respondent correctly charged the Applicant in terms of PSCBC Resolution 1 of 2003, instead of ELRC Collective Agreement Resolution 1 of 2013.
ii. Whether the Applicant was notified of the disciplinary hearing scheduled for 13 April 2023
iii. Whether a disciplinary hearing actually took place on 13 April 2023
iv. Whether the Applicant was served with a letter of dismissal / outcome of the disciplinary hearing
b) Substantive fairness:
i. Whether the Applicant breached any workplace rule, as per the charge sheet
ii. Whether the rules the Applicant alleged to have breached, was known to her
iii. Whether dismissal was the appropriate sanction.

17. The Applicant was charged, found guilty and dismissed for the following charges , quoted verbatim:

“Allegation 1: Insubordination:
You are hereby charged with allegations of committing an act of misconduct in terms of Annexure A of the PSCBC Resolution 1 of 2003, in that you willfully disregarded reasonable and lawful instruction from the Principal. The instruction was that you must report for duty at Central Office as from 25 March 2022. You defied the instruction of the Principal as you continued to report for duty at Welkom Campus contrary to the instruction that was served to you on 24 March 2022.
Allegation 2: Insubordination:
You are hereby charged with allegations of committing an act of misconduct in terms of Annexure A of the PSCBC Resolution 1 of 2003, in that you deliberately disregarded reasonable and lawful instruction from the Principal when you persisted in interfering with the Welkom Campus operations. The instruction that was served on you on 24 March 2022, requested that you must not interfere with Welkom Campus operations as an Acting Campus Manager was appointed to oversee the management of the campus.
Allegation 3: Unjustifiably prejudices the administration, discipline or efficiency of Welkom Campus:
You are hereby charged with allegations of committing an act of misconduct in terms of Annexure A of the PSCBC Resolution 1 of 2003, in that your failure to refrain from interfering with Welkom Campus operations, unjustifiable prejudices the administration of the Campus.
Allegation 4: Performs poorly or inadequately:
You performed your duties poorly or inadequately, in that on 14 February 2022, you neglected your duties as Campus Manager at Welkom Campus and reported for duty at Central Office without authorization from the Management. As Campus Manager, you were expected to address student concerns before they blew out of proportion and manage student protest that was in motion and thereby committed an act of misconduct in terms of Annexure A of PSCBC Resolution 1 of 2003.”

18. The Applicant submitted documentary bundles “A” and “B” and the Respondent submitted documentary bundle “R” into evidence. The veracity of the documents was not disputed, and it was accepted as it purported to be.
19. The Respondent called 7 (seven) witnesses to testify. The Applicant did not testify and did not call any witnesses.

SURVEY OF EVIDENCE AND ARGUMENT

20. The testimonies, under oath, are fully captured on the digital recording, and a copy of the digital recording is available on request from the ELRC. Below is only a summary of the evidence. If evidence is not captured herein, it does not mean that it was not considered. Evidence of the Respondent:
21. The 1st witness, Bongani Pretty Sibiya (“Sibiya”), who was also the Initiator during the disciplinary hearing of the Applicant, confirmed that the Applicant was properly notified of the hearing scheduled for 13 April 2023, and that she herself, and her representative, Mr Ncape, had agreed to the date. In an e-mail dated 4 April 2023 the Applicant and her representative was reminded that the disciplinary hearing would continue on 13 April 2023, despite another agreed upon date, being 5 April 2023, having been cancelled. The Applicant was thus fully aware of the date of the hearing. Neither the Applicant nor her representative attended the hearing on 13 April 2023, and the disciplinary hearing continued in absentia. The hearing was held in Welkom and virtually. Multiple witnesses led oral evidence, none of which were cross-examined due to the non-attendance of the Applicant and her representative.
22. The Applicant was correctly charged in terms of PSCBC Resolution 1 of 2003, as she was not a Lecturer, but considered as administrative and other support staff as a Campus Manager. The Applicant contributes levies to ELRC as well as PSCBC monthly. ELRC Resolution 1 of 2013 was applicable to Lecturers, and thus not applicable to the Applicant.
23. The Applicant, and her representative, was served with the hearing outcome and the dismissal letter on 28 July 2023 by himself. The Chairperson, Olifant, personally e-mailed the sanction to the Applicant and her representative on 21 June 2023 . In the hearing outcome the Applicant was advised that she may appeal the outcome.
24. The Applicant was found guilty on all four charges of misconduct, as per the charge sheet , and dismissed on all four charges. The Applicant was insubordinate in that she failed to adhere to instructions from the Principal, her superior, that she had to report to the central office with effect from 25 March 2022 and that she had to refrain from interfering with the operations of the campus, as an Acting Campus Manager, Mr Die (“Die”) had been appointed. This instruction was given because she had abandoned her post on 14 February 2022 due to fear for her safety as a result of student unrest. The Applicant was subsequently also charged for abandoning her post on 14 February 2022 and for not managing student grievances in order to avoid escalation of student unrest.
25. This witness was cross-examined.
26. The 2nd witness, Dr Rachere Radile, (“Radile”), was the Deputy Principal: Academic Services and the Applicant reported directly to him. A disciplinary hearing was held for the Applicant, and he gave oral evidence during said hearing. The Applicant did not attend the hearing.
27. WhatsApp messages were exchanged between himself and the Applicant on 14 February 2022 in terms of which the Applicant indicated that she felt unsafe due to the student situation on campus. She also forwarded him messages from students that she found on social media. She did not report to campus on 14 February 2022, which led to the 4th charged levelled against her. As part of her core duties, she was expected to manage student grievances and student unrest and prevent same from escalating to a riot. She failed to perform these duties, and the student unrest escalated to a violent riot. Due to her reporting feelings of unsafeness, an interim arrangement was made that the Applicant should report to central office, and that an Acting Campus Manager (“ACM”), Mr Die, be appointed. The Applicant was informed of this interim arrangement, and instructed by the Principal Mr Mahlangu, that as from 25 March 2022 she needed to report to the central office, and refrain from hindering the ACM in the executing of his duties. She failed to heed to the instructions, which led to the 1st, 2nd and 3rd charges being levelled against her. The Applicant reported to work on 25 March 2022 and interfered with the operations on the campus by giving instructions via e-mail and requesting information in the same manner from support staff. NEHAWU objected to the instruction given on 24 March 2022 , to which the Respondent repeated the instruction in correspondence dated 11 April 2022 . The consequences of her not abiding by the instruction was communicated in this correspondence. The Applicant continued to report to the campus and interfere with operations, in contradiction to the instructions.
28. The Applicant’s interference in the operations led to confusion amongst staff as to who they ought to have reported to, and this created division amongst personnel. It was difficult to regulate workflow. Her interference further impacted on the students as they were not positive about the Applicant’s presence on campus, accordingly the student’s concerns could not be resolved as effectively as possible. Her presence caused heightened emotions. Her failure to address and resolve student grievances made her part of the problem on campus. Ultimately, the student unrest escalated to a violent riot, which impacted on the safety of other personnel, their property, the property of the College and the infrastructure of the College. The South African Police Service had to be involved due to the violence and destruction. Campus operations were severely prejudiced by the Applicant’s failure to heed to the Principal’s instructions. Mr Die sought his intervention and clarity on the Applicant’s actions.
29. This witness was not cross-examined.
30. The 3rd witness, Manus Mogano (“Mogano”), Head of Department at Welkom TVET College, testified that the Applicant was his direct supervisor. During 2022 the students had grievances during registrations, and the Applicant did not address or resolve these grievances, but she rather stopped reporting at the campus. Mr Die was appointed as the Acting Campus Manager, but the Applicant continued to interfere with the operations by sending e-mails with instructions or with requests for information . This undermined the authority of the ACM and created confusion amongst personnel. The Applicant’s impact on campus was negative, and she would contradict the instructions of the ACM, which led to instability and undermining of the operations on campus. The students and personnel became very negative and uncooperative due to the Applicant’s continued presence and interference. The Applicant reported for work on 25 March 2022 , despite being instructed not to do so.
31. This witness was not cross-examined.
32. The 4th witness, Moeletsi Patric Pinkoane (“Pinkoane”), Deputy Principal: Corporate Services, confirmed the correspondence from the Principal in which the Applicant was instructed twice to report to the central office, due to her raising concerns about her safety, and to refrain from interfering in the operation of the campus while Mr Die, ACM, was appointed. He confirmed the evidence that the Applicant continued to report at the campus, despite the instructions given, and that she continued to interfere in the operations of the campus. NEHAWU’s objection to the instruction was inappropriate, and management had no obligation to consider such correspondence, as the Applicant was the employee of the Respondent, not NEHAWU. The Applicant defied lawful and reasonable instructions, which instructions were repeated. She was urged by management to reconsider her actions, and made aware of the consequences of her defiance, but she continued to defy the instructions. The Applicant had no valid reasons not to adhere to the instructions given to her by the Principal.
33. He had attended the disciplinary hearing of the Applicant, and he testified on 13 April 2023. The hearing was held virtually and chaired by Mr Olifant. The Applicant did not attend her hearing, and she was not represented.
34. The Applicant’s actions destabilized the campus environment and directly led to a violent riot by students. Her continued reporting to the campus brought about confusion amongst personnel and students alike and caused uncertainty on campus. She persisted to interfere in campus operations and caused a toxic environment. Teaching and learning were disrupted, personnel safety was jeopardized, and campus infrastructure was jeopardized, which led to a financial impact to repair damages.
35. The Applicant failed to address student grievances, which was her responsibility as Campus Manager, and it spiralled out of control, leading to student unrest, which she then failed to manage. She further did not inform management thereof to assist, but rather stopped reporting to the campus, and instead reported to central office on 14 February 2022.
36. This witness was not cross-examined.
37. The 5th witness, Francis Mahlangu (“Mahlangu”), Principal of the Welkom TVET College, confirmed that he had given two written instructions to the Applicant to report to the central office, effective 25 March 2022 and to refrain from hindering campus operations whilst Mr Die was the ACM. The Applicant disobeyed the instructions given to him, as her direct superior. The instructions were given because the Applicant had stopped to report at the campus and reported at central office on 14 February 2022, and action had to be taken to ensure the campus operations continued. Her reasons for stopping to report at the campus was related to her safety during student unrests.
38. She failed to manage student grievances and let the situation escalate to a violent riot. This endangered students’ lives, personnel, property and infrastructure.
39. The Applicant failed to comply with his lawful and reasonable instructions, which instructions were repeated. She continued to report to the campus, specifically on 25 March 2022, the date on which his instruction took effect, and she continued to interfere in the operations of the campus by undermining the ACM. The Respondent had no obligation to consider an objection from NEHAWU regarding his instructions, as the Respondent’s relationship was with the Applicant, not the union.
40. The Applicant was charged with misconduct, and dismissed after a disciplinary hearing held, where he testified and which the Applicant did not attend.
41. The Applicant’s defiance of his instructions caused confusion on campus as to who personnel had to report to, take instruction from and submit work to. The Applicant gave personnel instructions in contradiction to those given by the ACM. This compromised teaching and learning of students.
42. The 6th witness, Jacob Olifant (“Olifant”), Deputy Principal: Corporate Services at Sedibeng TVET College, was the chairperson in the disciplinary hearing of the Applicant. The hearing was initially scheduled for 2 March 2023 but was postponed. The hearing then continued on 28 March 2023 but was postponed again. During the second date, parties agreed to continue on 5 and 13 April 2023, and that he would join proceedings virtually as he had, by then, travelled from Gauteng on two occasions without the matter proceeding. On 4 April 2023 Mr Sibiya sent an e-mail in terms of which 5 April 2023 was cancelled, due to the campus being closed, and in terms of the aforementioned e-mail, it was reconfirmed that the hearing would continue on 13 April 2023, as the date agreed upon by parties. It could not be held that the Applicant did not know about the date of the hearing.
43. The hearing proceeded on 13 April 2023, as scheduled, and Mr Sibiya had created and distributed a link for virtual proceedings. At 09h09 on the morning off the hearing Mr Ncape sent an e-mail indicating that he was unavailable on the “new” date of 13 April 2023, but it was not a new date; it was an agreed upon date. Mr Ncape did not bother to join proceedings to address him on an application for postponement or any other reason which may have been considered as valid for him not to proceed. Since no valid reasons existed for the Applicant to be absent from her disciplinary hearing, it continued in her absence. Mr Sibiya presented the Respondent’s case, and witnesses testified, but was not cross-examined.
44. The Applicant was found guilty on all four charges and dismissed on all four charges. Mitigating and aggravating factors, in writing, were requested from parties. Mr Ncape indicated that he refused to submit same in writing, and wanted an opportunity to submit mitigating factors orally, and by calling two witnesses, which request was denied. The outcome of the disciplinary hearing was sent to all parties via e-mail on 21 June 2023 by him personally. The Applicant was afforded an opportunity to appeal.
45. This witness was not cross-examined.
46. The 6th witness, Thabiso Die (“Die”), Head of Department: Business Studies at the Welkom TVET College and used to report to the Applicant as an HOD.
47. On 14 February 2022 the Applicant abandoned the campus whilst the students were experiencing problems with registrations and were directed to her office for the resolution thereof. He was appointed as the Acting Campus Manager shortly thereafter. During his acting stint, the Applicant continued to report to the campus, specifically from 25 March 2022 , and she continued to execute duties as a Campus Manager. She attended morning briefings during which she actively participated, gave instructions through e-mails and requested information from staff through e-mails. Not only did this create confusion amongst personnel, but also for himself, so he sought clarity from the Dr Radile and a subsequent Memo was sent to all personnel on 25 April 2022 in terms of which it was confirmed that he was the ACM and that they had to report to him only. The Applicant’s interference destabilized operations of the campus and negatively impacted teaching and learning.
48. This witness was not cross-examined.

Evidence of the Applicant:

49. None.

ANALYSIS OF EVIDENCE AND ARGUMENT

50. The Respondent made oral closing arguments on record, which will not be repeated herein.
51. In this matter, the Respondent bears the onus to prove the fairness of the dismissal in terms of section 192 of the Labour Relations Act, 1995 as dismissal is not in dispute, and the standard of proof is that of a balance of probabilities. Once the Respondent establishes a prima facie case against the Applicant, the evidentiary burden shifts to the Applicant to rebut that case. (Woolworths v CCMA [2011] 10 BLLR 963 (LAC)).

Procedural fairness:

52. In terms of the PSCBC Constitution, its powers include, as per clause 4(i) thereof, that the PSCBC may “designate sectors, vary their scope, amalgamate or disestablish sectoral councils in the public sector”. Clause 21 of the PSCBC Constitution deals specifically with the procedure for designating sectors and establishing bargaining councils for such sectors, and states as follows:
    “21.1 Any party to the Council may request the Council to consider the designation of a further sector in the public service in terms of section 37(1) of the Act.
    21.2 In considering a request for the designation of a sector, the Council must take into account –
    a) Whether the State as employer in that sector has the requisite authority to deal with matters concerning the specific sector;
    b) Representations by trade unions which are sufficiently representative of employees in the specific sector; and
    c) The need to negotiate sector specific matters in a separate bargaining council as well as the effect that such an arrangement will have on existing bargaining councils.
    21.3 The Council must consider the request and take a decision thereon in terms of clauses 17.3 and if applicable, conclude a Resolution of Council in terms of clause 17.9.
    21.4 If the Council decides to designate a sector, the General Secretary must publish a notice in the Government Gazette inviting the relevant employer and trade unions with members employed in the sector to attend a meeting to establish a bargaining council for the sector on a date determined by the Council.
    21.5 The Council must appoint a chairperson for the meeting referred to in clause 21.4 to facilitate the conclusion of an agreement on –
    a) The trade unions to be the initial parties to the to the bargaining council for that sector; and
    b) A constitution for the bargaining council that must meet the requirement of section 30 of the Act, read with the necessary changes and musts be consistent with this constitution.
    21.6 If agreement is concluded, the Registrar must be approached to register the bargaining council in terms of the Act.
    21.7 If no agreement is concluded on a constitution of any part thereof, the Registrar must be approached to determine the constitution that meets the requirements of section 30 of the Act and register the bargaining council in terms of the Act.”
53. It is clear that from the constitution of the PSCBC that sectoral bargaining councils in the public sector is established by the PSCBC, including the ELRC.
54. The constitution of the PSCBC further governs the relationship between the PSCBC and its Sectoral Councils in clause 24 as follows:

“24.1 The objective of interaction between the Council and the Sectoral Councils will be to cooperate and coordinate with, and contribute to, one another.
24.2 Decisions of the Council in as far as they affect the Sectoral Councils, bind such Councils.
24.3 Each Sectoral Council is a juristic person with autonomy on aspects that it can implement itself. However, it cannot make decisions that bind the Council.
24.4 A Sectoral Council may make recommendations to the Council. If the Council receives a recommendation for its consideration from a Sectoral Council, it must discuss and consider it. However, the Council is free to make any decision falling within the scope of this Constitution regarding such recommendation.”

55. “Employer” is defined in the PSCBC Constitution as: “the State as employer falling within the registered scope of the Council”. In the Constitution of the ELRC the definition of “Employer” is as follows: “the employer as defined in the Employment of Educators Act, 1998”. The Employment of Educators Act, 76 of 1998, defines and Employer as: “……in relation to any provision of Chapter 4, 5 or 7 which applies to, or is connected with –
    (a) an educator in the service of the Department of Education, means the Director – General;
    (b) an educator in the service of a provincial department of education, means the Head of
    Department”
56. PSCBC Resolution 1 of 2003 prescribes the disciplinary code and procedures in the public sector. Clause 3 thereof states that: “3. SCOPE OF APPLICATION
    This Code and Procedure apply to the employer and all employees falling within the registered scope of the Public Service Co-ordinating Bargaining Council. It does not, however, apply to the employer and employees covered by a disciplinary code and procedure,
    3.1 concluded in a sectoral council and approved by the PSCBC to ensure uniformity of procedures across the public service, or
    3.2 contained in legislation or regulations.”
57. It is common cause that the ELRC, as a sectoral council established through the PSCBC, has concluded its own disciplinary code and procedure, being ELRC Resolution 1 of 2013.
58. Within the ELRC through Collective Agreement 5 of 2008, the Further Education and Training Colleges Sector Bargaining Unit was established, which governs, amongst others, employers and employees as defined in the Further Education and Training Colleges (FETC) Act, 16 of 2006.
59. At the time of the Applicant’s dismissal, she was an Employee of the Department of Higher Education and Training. She was not a Lecturer, but was support staff, being a Campus Manager.
60. On 14 January 2016 the General Secretary of the ELRC issued correspondence to the Respondent, the CTU-ATU, SADTU and all ELRC Panelists, to clarify the confusion as to TVET matters. It was stated by Ms Foca in the correspondence that the PSCBC has clarified the status quo would remain in that, employees employed in terms of the FETC Act would fall under the jurisdiction of the ELRC and that support staff would fall under the jurisdiction of the GPSSBC.
61. The aforementioned has been the unchanged position since 2016 and is still followed.
62. The Respondent correctly charged the Applicant in terms of PSCBC Resolution 1 of 2003, as she was not a Lecturer, but support staff.
63. The Applicant further claimed not to have been notified of the disciplinary hearing on 13 April 2023. Oral evidence by Sibiya and Olifant established that on 28 March 2023 parties had agreed to continue on 5 and 13 April 2023 respectively. This evidence was corroborated by documentary evidence of the e-mail by Sibiya, dated 4 April 2023, in which he stated that “the disciplinary hearing will proceed as per below previous schedule” on 13 April 2023. The e-mail was further dated 4 April 2023, whereas the hearing would continue on 13 April 2023, and Mr Ncape and/or the Applicant could have raised their objections on any date prior to 13 April 2023 or join proceedings on 13 Apri 2023 to raise valid reasons why the matter should not proceed. The evidence of Sibiya was challenged but the evidence of Olifant was unchallenged.
64. It then follows that the Applicant was notified and aware of the disciplinary hearing on 13 April 2023.
65. The Applicant claimed that no actual hearing took place on 13 April 2023. All the Respondent’s witnesses confirmed that a disciplinary hearing did take place on 13 April 2023 and was able to give details of the hearing in support of their evidence. The evidence Sibiya was challenged, but the evidence of the other witnesses remained unchallenged.
66. It then follows that a disciplinary hearing for the Applicant was held on 13 April 2023.
67. The Applicant claimed not to have been issued with a hearing outcome or a letter of dismissal. Sibiya testified, corroborated by documentary evidence, that the hearing outcome was served on the Applicant and Mr Ncape via e-mail by him on 28 July 2023, which evidence was largely unchallenged. Olifant testified, corroborated by documentary evidence, that he had issued the Applicant and Mr Ncape on 21 June 2023. The evidence of Olifant remained unchallenged.
68. Mr Ncape’s cross-examination of Sibiya ventured outside the scope of the issues narrowed on record. It is now established that parties are bound by the signed pre-arbitration minutes and/or the issues narrowed on record. Mr Ncape was cautioned multiple times by me to stick to the issues narrowed on record. See, for example, Mbeje and Others v Department of Health: KwaZulu-Natal and Others (DA33/2022) [2024] ZALAC, where the Court held that deviation from pre-arbitration minutes was impermissible.
69. The dismissal of the Applicant was procedurally fair.

Substantive fairness:

Charge 1:

70. The instruction from the Principal, Mahlangu, was issued in writing to the Applicant. Mahlangu and Radile testified that the instruction was issued after the Applicant abandoned the campus on 14 February 2022, citing fear for her safety as the reason. Mahlangu and Radile testified that the instruction was reasonable and lawful, and that the reason for the instruction, as per the correspondence, was (i) the Applicant’s health and safety, which is a priority for the college, (ii) campus student grievances and riots which she did not deal with and (iii) teaching and learning as a core function of the college. The instruction, issued 24 March 2022, took effect on 25 March 2022, in terms of which the Applicant had to stop reporting at the campus and instead report to the central office. An interim arrangement was made including the appointment of Acting Campus Manager, Die. This instruction was repeated on 11 April 2023 when it came under the attention of management that the Applicant continued to report to the campus, in contradiction to the instruction. Witnesses testified that the correspondence from NEHAWU on 24 March 2022 carried no weight, as the instruction was issued to its employee, the Applicant.
71. It is clear from the undisputed evidence that an instruction was issued to the Applicant, and that the instruction was reasonable and lawful in the circumstances. From the evidence it is clear that the Applicant defied the instruction by reporting at the campus on 25 March 2022 and thereafter, as proven by attendance registers signed by the Applicant. It is further evident that, even after the instruction was repeated on 11 April 2022, the Applicant continued to report at the campus, proven by attendance registers signed by the Applicant.
72. In the Palluci Home Depot v Herskowitz and others (2015) 5 BLLR 484 (LAC) the Court held the following on what constitutes insubordination:
    “The offence of insubordination in the workplace has, in this regard, been described by our courts as a willful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (willful) and serious challenge to the employer’s authority.
73. The evidence proves, on a balance of probabilities, that the Applicant is guilty of the 1st charge of Insubordination.

Charge 2:

74. The instruction issued to the Applicant on 24 March 2022, and repeated on 11 April 2022, was that she “must allow the current acting Campus manager to execute campus operations without any hindrance” until the situation at the campus is resolved. Mogano, Pinkoane, Radile, Mahlangu and Die led undisputed evidence that the Applicant continued to interfere with the operation of the campus, and undermined Die’s position during the period that he was the Acting Campus Manager. Documentary evidence proved that for the period 28 March 2022 until 18 November 2022 the Applicant actively executed her role as Campus Manager, in defiance to the instruction issued by Mahlangu, by issuing instructions and requesting information via e-mail. It was further Die’s uncontested evidence that she attended morning briefings and actively participated in meetings in her role as Campus Manager.
75. It was Radile and Mahlangu’s uncontested evidence that an Acting Campus Manager was appointed because the Applicant’s presence on campus caused negativity amongst students. They added that the appointment of Die was to stabilize the environment and to get teaching and learning back on track.
76. It is clear from the undisputed evidence that an instruction was issued to the Applicant, and that the instruction was reasonable and lawful in the circumstances. From the evidence it is clear that the Applicant defied the instruction by continuing to interfere in the operations of the campus and undermining the role of the Acting Campus Manager. It is further evident that, even after the instruction was repeated on 11 April 2022, the Applicant continued to hinder the operations of the campus.
77. In the Palluci Home Depot v Herskowitz and others (2015) 5 BLLR 484 (LAC) the Court held the following on what constitutes insubordination:
    “The offence of insubordination in the workplace has, in this regard, been described by our courts as a willful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (willful) and serious challenge to the employer’s authority.
78. The evidence proves, on a balance of probabilities, that the Applicant is guilty of the 2nd charge of Insubordination.

Charge 3:

79. This charge relies on much the same evidence as the 2nd charge.
80. The evidence proves that the Applicant had indeed interfered with the operations of the campus, thereby having unjustifiably prejudiced the administration, discipline and efficiency of the campus. The undisputed evidence of Mogano, Pinkoane, Radile, Mahlangu and Die, corroborated by the documentary evidence, proved that the Applicant continued to interfere in the operations of the campus.
81. Mogano, Pinkoane, Radile, Mahlangu and Die led undisputed evidence on the impact of the Applicant’s continued interference, which included the threat to the safety of personnel due to the student unrest having escalated to a violent riot due to the Applicant’s continued presence at campus. The threat to buildings and infrastructure of the campus, vehicles of staff and students, property of staff and students, etc. They further testified that the Applicant’s continued interference had an emotional impact on students, making them negative, and causing confusion, destabilization and demotivation amongst personnel.
82. The evidence proves, on a balance of probabilities, that the Applicant is guilty of the 3rd charge of unjustifiably prejudicing the administration, discipline or efficiency of the Welkom Campus.

Charge 4:

83. Radile testified to a WhatsApp exchange between him and the Applicant on 14 February 2022 where the Applicant reported that she would not go to the campus, because she was feeling ill and that she felt unsafe with the student unrest on campus. Radile, Mahlangu and Die gave undisputed evidence that the Applicant had, in fact, abandoned the campus on that day, instead of dealing with student grievances, which caused student unrest, and ultimately escalated to a student riot.
84. Part of the WhatsApp exchange included social media posts by students the Applicant had forwarded to Radile which stated:

“Everyone Who Know Mamofogeng The Manager Of Welkom College Behavior Behalf Can You Please Send How Did She Treated You And Give Me The year And Your Province Or Township. Please Don’t Be Scared This Person I Have Heared Some Bad Mouth If Her So We Don’t Need This Kind of behavior When We Need Help or A Change This Women Do Things According TO Her Roles Not The Law Of Welkom College Campus Protocols..”

“Tomorrow if You go to campus You Just Waist Your Money For Transport Because You People don’t Want To Corporate With Us..So Till Friday No School Will Be In At All. If You Go There You Just Attend for free even Your Assignment Iwill be problem of your Student Card problem We Don’t Care Because Now I Have Seen Today Ha Le Batle ho utlwella Ba Bong Bohloko basa Tholang Skolo…..
So Hosane We Still going to interrupt the attendees Thank You.Dont speak with me whatever you want.”

85. Oral evidence was not led, nor was documentary evidence submitted, whether the Applicant only failed to report at the campus on 14 February 2022, or subsequent days thereafter.
86. Undisputed evidence from Mahlangu and Die was that the Applicant had failed to deal with student grievances during the entire registration process and failed to prevent the grievance from escalating to student unrest and riots.
87. The evidence proves, on a balance of probabilities, that the Applicant is guilty of the 4th charge of performing poorly or inadequately.
88. The Applicant challenged knowledge of the rules which she was alleged to have contravened. The disciplinary code of the Respondent or the contract of employment of the Applicant was not submitted into evidence. However, it was common cause that the Applicant has been a campus manager since 2010, but only in this role at the Welkom TVET College since 2016. As a senior manager employed by the Respondent it cannot be held that the Applicant was unaware of the rules in the workplace, as she, in her capacity as Campus Manager, would have had to enforce the rules governing the workplace, having subordinates that reported to her.
89. The Applicant was aware, or was reasonably expected to be aware, of the rules in the workplace that governed her employment, and in terms of which she was charged with misconduct.
90. Considering the appropriateness of the sanction, I am guided by the code of Good Practice, Dismissal, effective 4 September 2025, which states that a dismissal is fair if it is for a fair reason (item 5). It further states that a dismissal would be fair if an employee commits serious misconduct that renders the continuation of the employment relationship intolerable (item 7). Subject to the rule that each case must be judged on its merits, serious misconduct may be a single instance of misconduct or repeated misconduct where graduated disciplinary measures have been implemented (item 7).
91. Item 9 provides factors to consider in determining whether a continued employment relationship is intolerable, or not:

1) The nature and requirements of the job;
2) The nature and seriousness of the misconduct and its effect on the business;
3) Whether progressive discipline might prevent a recurrence of the misconduct;
4) Any acknowledgement of wrongdoing by the employee and a willingness to comply with the employer’s rules and standards;
5) The employee’s circumstances (length of service; disciplinary record and the effect of the dismissal on the employee)

92. The Applicant held a senior management position and was expected to lead by example. Her acts of insubordination are thus more strictly judged. It was held in Anglo Operations (Pty) Ltd v NUM and others (JR 903/16) (2018) ZALCJHB 327 that persistent refusal to provide a copy of an appointment letter was persistent and deliberate. The instruction was furthermore given by a senior manager and the dismissal was accordingly found to be substantively fair.
93. The Applicant persisted in her refusal to adhere to the instruction of her immediate supervisor, Mahlangu, to not report at the campus but to, instead, report to the central office. A key element that prompted this instruction was the Applicant’s own report of fear for her safety. Her continued reporting at campus had a destabilizing effect on campus as the students’ dissatisfaction with her caused negativity and escalated the student unrest to a violent riot.
94. The Applicant further persisted in her refusal to adhere to the instruction of Principal Mahlangu, to refrain from interfering in the duties of Die, the Acting Campus Manager, and the operations of the campus. Her continued interference had a detrimental effect on the operations of the campus by causing confusion amongst personnel, destabilization of operations and impacting on teaching and learning.
95. The Applicant did not take responsibility for her wrongdoing or show remorse at any point.
96. The sanction of dismissal was appropriate for charges 1, 2, and 3 for allegations of insubordination, and unjustifiably prejudicing the administration, discipline and efficiency of the Welkom Campus.
97. The 4th charge mentioned only one date, 14 February 2022, that she abandoned the campus, and did not deal with student grievances before it blew out of proportion, causing the escalation of student unrest. As already analyzed, there was insufficient oral or documentary evidence that the Applicant had abandoned the campus for subsequent dates. The charge was very specific to one date only, being 14 February 2022.
98. On the 4th charge, for poor or inadequate performance, a sanction short of dismissal would have been more appropriate, considering the fact that she was charged with abandoning the campus and failing to manage the students’ grievances for one day only.
99. It was common cause that the Applicant had a clean disciplinary record and had been in the employment of the Respondent since May 2005, in different positions.
100. From the analysis above, and the finding that dismissal was the appropriate sanction for charges 1,2 and 3, I find that the dismissal was substantively fair.
101. The Applicant’s claim of unfair dismissal stands to be dismissed.

AWARD

102. The dismissal of the Applicant, Mamono Adelina Mofokeng, by the Respondent, the Department of Higher Education and Training – Free State, was procedurally and substantively fair.
103. The Applicant is not entitled to any relief.

Minette van der Merwe
ELRC Panelist