27 May 2025 – ELRC565-21/22FS

Panelist: Selolong Mosoma
Case No.: ELRC565-21/22FS
Date of Award: 23 May 2025

In the ARBITRATION between:

PEU obo Makhato Nwabisa
(Union / Applicant)

and

Department of Higher Education and Training: Maluti TVET College
(Respondent)

Applicant’s representative: Mohlatlole K
Applicant’s address: PEU

Respondent’s representative: Mpe Ngcosane
Respondent’s address: Maluti TVET College

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

This is an arbitration award of a matter between PEU obo Nwabisa Makhato (hereinafter referred to as the Applicant) and the Department of Higher Education and Training- Maluti TVET College hereinafter referred to as the Respondent).
The arbitration hearing was held at Maluti TVET College in Bethlehem in the Free State Province on 01 and 02 July 2024 and remained part heard. It continued again on 18 September 2024, 19 September 2024, 22,23 and 24 January 2025 and it remained part heard. It continued again on 28 and 30 April 2025.
The Respondent was represented by Mr. Ngcosane Mpe former employee of the Respondent . The Applicant on the hand was represented by her trade union official Mr. Mohlatlole Klaas.
Both parties agreed to utilize common bundle which was accepted to what it purported to be.
The proceedings were conducted in English and Sesotho interpretation was provided for the witnesses.
Parties agreed to submit their written heads of arguments by no later than 09 May 2025.
The proceedings were mechanically recorded.

ISSUE TO BE DECIDED

It must be decided whether the dismissal of the Applicant was both procedurally and substantively fair. With regards to procedure the Applicant raised the following issues;

a. Chairperson was not properly appointed in terms of Resolution 1 of 2003.

b. Whether the Applicant was charged correctly in terms of ELRC FETCBU Resolution 1 of 2013.

In terms of substantive fairness, whether the Applicant’s conduct should have been treaded as poor work performance than misconduct and appropriateness of the sanction of dismissal in these circumstances were in dispute.
The Applicant sought retrospective reinstatement.
The Respondent sought that the Applicant’s case be dismissed.

BACKGROUND TO THE DISPUTE

The Respondent is a TVET College having various campuses including Itemoheleng campus in Phuthaditjhaba where the Applicant worked prior to her dismissal. The Applicant was employed by the Respondent on 18 February 2013, as PL1 Lecture NCV studies. At the time of her dismissal, her monthly remuneration was R 19 105,75.
The Applicant was charged with three (03) counts of allegations and found guilty on all three allegations and dismissed namely;
a. Gross dereliction of duties in that- on investigation by Department of Higher Education and Training in January 2017, after receiving a moderation report from Umalusi in October 2026, it was found that you willfully and intentionally failed to make sure that;
i. Students’ files were compliant with ICASS Guidelines
ii. Leaner portfolios were submitted to UMalusi for moderation
iii. Students’ schedule (POEs)were properly kept and maintained
These acts led to the students not being resulted and certificated by Department of Higher Education and
Training and Umalusi.

b. Prejudice the administration, discipline or efficiency of a department, office or institution of the college in that-
i. It is alleged that during 2016, you dismally failed to improve your Assessment File for English level 4 students to an extent that your students had not resulted and certificated by DHET and Umalusi when you refused to consult with Ms. Mosea from Sefikeng Campus whose files were excellently maintained.
ii. During October 20217, you stated in your petition and also in the meeting between management and lectures that Mr. Lehlakola has renovated his office to the cost of more than R 100 000.00 (one hundred thousand only) and failed to provide evidence thereof.

c. Incitement of other personnel to participate in an unprocedural and unlawful conduct in order to cause disharmony and chaos at the campus in that-
i. on 12 May 2017, you prompted all lectures to walk out of the meeting that was addressed by Mr. Mokhobo the HR Manager. Through your incitement and/or order, all Nated lectures left the meeting.
ii. during October 2017, you also prompted other lectures to stand against the renewal of Mr. Lehlakola’s contract the campus manager , when you falsely stated that he has been absent for seven (07) months and only worked five (05) months in the 12 months period.
iii. You claimed in your petition that Mr. Lehlakola’s contract will end on 30 October 2017 without proving it.

The Applicant approached the Council alleging that her dismissal was both procedurally and substantively unfair and seeking reinstatement.
The dispute was not resolved at conciliation, and it was referred to an arbitration hence this award.
Because the proceedings were electronically recorded, the summary of the evidence will appear in the analysis that will follow herein under.

SURVEY OF EVIDENCE AND ARGUMENT
RESPONDENT’S SUBMISSION

First witness of the Respondent Mr. Lehlakola Daniel testified as follows;
He testified that he was appointed as a Campus Manger on the 01 November 2026. He mentioned that he received a very hostile reception at Maluti TVET college to an extend that some of the employees were not greeting him. He intimated that he was campus manager at Gert Sibande FET College prior to his appointment as campus manager at Maluti TVET College.
He stated that there is no way that the Applicant could have been charged based on Resolution 1 of 2003 and the applicable and relevant Resolution was Resolution 1 of 2013. Therefore, the ELRC has necessary jurisdiction to deal with all lectures disputes.
He testified that the college principal has authority to charge lectures from PL1 to PL3 and has further authority to sign appointment letter of the presiding officer.
He testified that student files refers to portfolio of evidence (POEs) which contains name of the student subject assessment plan or schedule, assessment tasks, scripts, class registers. The student mark sheets would normally be found in the portfolio of assessment (POA).
He mentioned that it was impossible that someone with more than five years of services to claim they were never trained or inducted. So, there is no way that the Applicant could allege that she was not trained or inducted by virtue of her length of experience.
He referred to page 30 of the bundle of the ICASS Guidelines which deals with the portfolios and said that it was applicable to all lecturing staff. He further referred to page 15 of the bundle which was Umalusi checklist portfolio and was used to control the files. The checklist shows that no POE and POA for English L4 were received from Itemoheleng campus. Umalusi wrote a letter to the Applicant after POE for English level 4 were not submitted advising her that task 1 and 2 were incorrect and she must work with her policy guidelines.
He testified that the Applicant was afforded an opportunity to correct, fill all the information and submit the requested information. He stated that he followed up with the Head of Department to assist the Applicant. He even requested the HOD to speak to Ms. Mosea at Sefikeng campus who was willing to assist the Applicant, and he received a report that the Applicant did not go to meet Ms. Mosea. He then approached the Applicant, and she told him that she was spiting management. Therefore, the Applicant’s conduct cannot be a capacity issue but a pure misconduct.
He stated that the Applicant failed to submit lecture information, and no tasks were done as per ICASS monitoring summary on page 11 of the bundle.
He testified that the Applicant’s actions had far reaching implication on both the college and the students. He stated that that it was going to be unfair to assess the student on six tasks instead of seen tasks. Therefore, the students had not resulted as a result of the Applicant’s actions
He testified that the college had to appoint two part time lectures and tutors for catch-up program for 83 students which had not resulted and certificated as a results of the Applicant’s actions. the college had to incur unplanned financial cost to the tune of R 90 475.00 for both lectures and student meals. He stated that the college was not going to incur such financial costs had the Applicant accepted the opportunity for assistance by Ms. Mosea.
It was his evidence that had the Applicant consulted Ms. Mosea that would have assisted her to bring her files in order and students would have been resulted. The Applicant’s action resulted into the college incurring wasteful and fruitless expenditure.
With regards to the alleged R 100 000.00 that was spent to renovate the office he stated that the Applicant misled the staff members, and she could not present any proof to substantiate those allegations.
The Applicant’s actions had far reaching implication on both the college and students in that students did not get their results and also college enrollment for 2017 dropped.
He stated that Itemoheleng campus was the campus that has no discipline and zero regard for management. It was further a campus with highest number staff dismissal.
Regarding the petition he stated that he became aware of the petition after he was made aware that there was on lecture who compiled and submitted it to the college council.
He refuted the allegations that R 100 000.00 was spent to renovate his office. the same office that was renovated was burned down during students protests.
He testified that no grievance was lodged against him, nor was he was aware of any grievance lodged.
Regarding the allegations of shortage of equipment’s and PPE for groundsman he stated that the allegations were unfounded because there were enough equipment’s and PPE when he arrived at the campus. He further stated that the same groundsman were either selling or stealing the same equipment bought for them and the PPE would just disappear.
Under cross-examination he stood his ground and denied all the fats put through by the representative of the Applicant.
Second witness of the Respondent, Mr. Wentzel David testified as follows;
He testified that he was appointed by the Respondent as the Acting Farm Manger since 2020, but he was appointed on 25 January 1987.
He stared to work with the Applicant around 2015/26 at Itemoheleng Campus. In or around 2016/17 he was the Head of Department and also acting as a campus manager. He stated that Umalusi would be visiting the campus to verify the ICASS and one of his functions was to request the POEs from the lectures. The POE must contain amongst others all the evidence of the student including question papers and answer sheets.
He testified that the Applicant failed to submit her students POEs alleging that she was not trained properly on how to compile the file. He further stated that it takes between 2 to 3 hours to compile a file because the example file was always available. Lecture were also provided training on how to compile the file, therefore, it cannot be correct that the Applicant did not know how to compile the file.
He stated that arrangement was made between the Applicant and Ms. Mosea to assist her on how to compile her files and the Applicant.
He testified that an official of Umalusi came to the campus with the names of the lectures who were randomly selected to check their POEs. Files were selected based on subjects. English level 4 file was requested and submitted to Umalusi for verification, and they submitted their report to the college curriculum manager Ms. Breytenbach. The report is contained on page 16 of the bundle and was addressing issues picked up during verification. The students results were withheld as a result of the Umalsui findings.
It was his evidence that both the college and students were not going face this situation had the Applicant complied with his instruction. The student were prejudiced as result of the Applicant’s actions.
With regards to allegation three (03) he testified that there was a meeting convened by Mr. Lehlakola for Mr. Mokhobo to address the lecturing staff about the hit list rumors. It was during the course of the meeting were the Applicant stood up and said they were not in agreement with what Mr. Mokhobo was saying and walked out the meeting were the rest of the staff members followed. Therefore, the meeting was adjourned.
Under cross-examination he denied all the facts put through by the Applicant representative.
Third witness of the Respondent, Mr. David Mokhobo testified as follows;
He testified that he was appointed by the Respondent as Human Resources Manager from 2015 until 2018.
He stated that he inherited lots of problems and unlawfulness when he was appointed. He dismissed 05 lectures and suspended 63 lectures during his tenure as Human Resources Manager. Staff discipline took most of his time as the Huan Resources Manager.
The lectures at Itemohelng campus had a room where they would sleep during the working hours and others would be basking in the sun. The campus manager was fairly new, and they turned him into a laughing stock
He stated that the curriculum manager wrote a letter to him about the situation at Itemoheleng Campus that leaners were not taught by the Applicant, and they were not going to receive their results. She further advised him that the Applicant was told to go to Ms. Mosea for assistance with the compiling of files.
He stated that the college was advised to appoint another lecture(s) to tutor students after hours or over the weekend to catch up with their studies. A submission was drafted and approved to secure the services of lecture(s) to assist the students to catch up with their studies.
It was not fair for the college to incur financial costs as a result of the Applicant’s actions. the college had to spent R 90 475.00 to pay lecture(s) and meals for the students to attend classes after hours r over weekends.
He testified that the Applicant’s conduct was pure misconduct but not a performance issue. He further testified that the Applicant did not go to see Ms. Mosea as she was advised to do. The Applicant’s conduct portrayed the image of the college in a very bad light. The college incurred costs as a result of actions and there were possible litigations against the college
On the 12 May 2017, he went to Itemoheleng campus to address to staff regarding the hit list rumors and assured the staff that there was no such thing as a hit list. During his address the Applicant said to him that as the lecturing staff they had better things to do than to be addressed by him. The Applicant stood up and said guys lets go and everyone followed her. He was left with the campus manger alone because everyone left.
With regards to the petition he stated that the college learned about the petition through the college principal who received it from one of the council members. He was of the view that the employees should have lodged grievances if they were not happy about certain things at the campus. It was his evidence that the allegations mentioned in the petition were not true nor substantiated by any evidence or whatsoever. The petition rendered the campus manager useless and created animosity amongst the campus staff.
Under cross-examination he disputed everything put to him by the representative of the Applicant except to say that things were going to be a bit different had the Applicant met with Ms. Mosea and not defied the instruction.
Fourth witness of the Respondent, Mr. Maphakisa Joseph testified as follows;
He testified that he was employed by the Respondent as a groundsman since July 2008.
He mentioned that he would report to his supervisor whenever he has issues regarding his tool of trade.
He stated that he signed the petition because majority of the staff members who had problems signed it. He initially refused to sign the petition but went to sign it later in the afternoon in the Applicant’s office. He did not know the meaning of petition until the college principal came and explained it to them. He apologized before the college principal and his team about signing the petition. And it appeared that most the issues raised in the petitioned were discussed in a meeting where he was not in attendance.
It was his evidence that he was not interviewed about the shortage of tools of trade for groundsman unless if other groundsman were interviewed without his knowledge.
With regards to shortage of tools of trade and PPE he stated that they had shortage for almost three years and the PPE was completely worn out. The said shortage was reported to the previous campus manager.
It was his understanding that the petition was like a fight against Mr. Lehlakola which might lead him losing job.
Under cross-examination he stated he concede that paragraph 10 of petition was addressing their shortage of equipment’s and PPE. He further concede that he was not forced to sign the petition.
APPLICANT’S CASE
Ms. Makhato testified under oath as follows;
She testified that she was appointed as English level four (04) lecture and two (02) and subject head at Itemoheleng campus.
She stated that she reported for duty on 18 February 2013, and attended the morning session and was given books and showed her class by the Head of Department that’s how she started teaching. She was never inducted nor trained on how to compile the files except being told to look for an old files that was used by the previous lecture.
She stated that there was no prior intervention from the Respondent nor from her supervisor. She refuted the allegations that she refused or failed to upgrade her students’ files.
It was her evidence that she could not meet with Ms. Mosea because she had an emergency to attend to on that day. She then asked Ms. Mosea if they could meet in Qwa Qwa but she was not available.
She testified that the campus had capable lectures who could have assisted her to compile the files, however, the instruction did not come from Mr. Wentzel but from Ms. Breytenbach. She stated that Ms. Breytenbach came to assist her with the files during January 2017. No action against both her superiors Mr. Mosalla and Mr. Wentzel were taken.
It was her evidence that she never informed nor consulted about the temporary lectures who were employed to assist the students to catch up with the studies. She continued with her classes from Monday to Friday and students would attend extra classes on Saturdays. None of those of lectures consulted with her regarding the work done. no one has informed her about the costs by the college to employ temporary lectures.
She mentioned that she never received any support from the campus, nor did she meet with Ms. Mosea as advised. She denied that her actions was to spite management.
Regarding the petition she stated that her role was that of a scriber and Mr. Mofokeng chaired the meeting. she went to type what was discussed during the meeting and minutes were circulated to everyone to read and attach his or her signature.
With regards to alleged R 100 000.00 spent to renovate the office of the campus she stated that she once saw an invoice hence she stated that amount was spent to renovate the office. She was requested to submit evidence with regards to the said R 100 000.00 the following day and invoice were nowhere to be found.
She testified that herself and Mr. Liphuting were nominated as the spokespersons of the staff members, and they also took ownership of the petition after the college principal said he will not address them until someone takes ownership of the petition.
She stated that some of the lectures backed out of the petition while other chose to remain quite during the meeting. Mr. Mofokeng on the other hand excused himself from the meeting.
With regards to inciting fellow lectures to walk out of the meeting as convened by Mr. Mokhobo it was evidence that she told him that he failed to address genuine grievances raised by the staff and chose to address rumors of the hit list. She then walked out of the meeting, but she was not the first person to walk out the meeting. Mr. Ngobeni was the first person to walk out of the meeting and no action was taken against him.
She believed that she was targeted by management because she was vocal, and the Respondent capitalized on the 2016 incident. All other lectures who were on the hit list were all dismissed. The incident happened in 2016 and was only charged in 2018, both HOD and Senior Lecture were not charged, or no action was taken against them.
Under cross-examination she confirmed that she was aware that files were monitored. She testified that she was not aware that lectures ere externally assessed until 2016.
She further confirmed that she informed that her files were not on par, and she must go and meet Ms. Mosea to assist her to get her files on par.
She conceded that it was her responsibility to ensure that students’ files were in order.
2nd witness of the Applicant Mr. Thabo Khobane testified as follows;
He testified that he was former lecture of the Respondent, and he joined the college in February 2013. He was responsible for engineering subjects.
He stated that he was never inducted nor trained on how to compile a files.
He further stated that he does not recall having a senior lecture as head of department.
He further submitted that he submitted his files to Mr. Mosalla for assessment during 2015/16 and he does not remember his files being moderated between 2013 and 2016.
Lastly, he stated that he never received any training about the grievance procedure.
Under cross-examination he conceded that ICASS guidelines were published by the Department of Higher Education and Training to assist the lectures on how to do their work.
Lastly, he disputed all other facts put through by the Respondent’s representative.
Third witness of the Applicant Mr. Pakane Liphuting testified as follows;
He testified that he was appointed by the Respondent as a PL1 lecture.
He stated that they decided to draft the petition after not getting any joy from management about their problems.
It was his evidence that he had problems as a Nated lecture and NCV had their own issues, so there were general workers including staff support. The agreement was that every person would write down his/her challenges and a meeting will be arranged where all challenges will be consolidated, and all signed the petition.
He further stated that they chose petition because they belonged to different trade unions as the college staff members. he mentioned that the meeting was convened with college management and the college principal wanted individual employees to own each point raised in the petition before they could address all the issues raised.
He intimated that there was no individual employee who were elected to be the spokesperson or representative of the attendees. It was only him and the Applicant who were vocal during the meeting. he refuted the Applicant’s version that they were chosen as the spokesperson, and they took ownership of the petition.
Lastly, he stated that it was him and the Applicant who took the petition to the council chairperson Mr. Makae because the Applicant knew him, and they used his vehicle to take it to him to Kestell
Under cross-examination he conceded that they had problems prior the appointment of Mr. Lahlakola as the campus manager. Lastly, he denied all other facts put to him by the Respondent’s representative.

SUBMISSION OF ARGUMENTS:

Both parties requested to submit written closing arguments and submission of both parties were carefully considered. I will not repeat what was said by the parties, as the contents basically mirror what was put to the parties during the leading of evidence and cross-examination.

ANALYSIS OF EVIDENCE AND ARGUMENT:

Section 192 of LRA, Act 66 of 1995 (as amended) stipulates the following.
a) Any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.
b) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.
In casu, it was common cause that the Respondent dismissed the Applicant. Therefore, the Respondent bears the onus to prove its fairness on the balance of probabilities. The Respondent has to prove that the Applicant was dismissed for a fair reason and that fair procedures were followed.
Having said the above, it should be established whether the Applicant was dismissed for a fair reason.
The Respondent dismissed the Applicant on the basis that it viewed her as being guilty of the alleged misconduct levelled against her. It sought to discharge the onus of proving that the dismissal was procedurally and substantively fair, through the evidence of four witnesses.
The witnesses of the Respondent were extremely compelling. They testified in great detail, and especially Mr. Lehlakola, Mr. Mokhobo and Mr. Wentzel , they spoke from the heart in completely uninhibited manner. Their demeanor reflected earnestness, sincerity and great disappointment with what the Applicant had done.
They justified each statement they made fully and in fine detail and with reference to documents including ICASS guidelines, Umalusi letters, DHET investigation and Curriculum manager’s document which comprised the very bundle of documents presented by the Respondent.
I have no reason at all to doubt the evidence of any of the Respondent’s witnesses. Their versions were credible and factual with no signs of tailoring and corroborated in every respect by each other.
While on the other hand, the Applicant was not a good witness. Her defence rested solely on blatant denial of any wrong doing at all. She attempted to distance herself from any responsibility for anything. She was blatantly unremorseful and sought to place the blame for everything on the college.
Despite it blatantly clear that her students files were not on par, the Applicant insisted to the bitter end, that in her view, that she was never trained on how to compile both POEs and POAs, despite clear and unequivocal ICASSS guidelines from DHET. The foolhardiness of the employee in this regard simply made no sense.
There is no doubt that the Applicant clearly does not understand or underestimate the implications of her actions on both the college and the students at large. The students did not receive their results as a result of her actions and the college on the other hand had to incur huge unplanned financial loss.
Her defence that she was not trained on how to compile both POEs and POAs was a final admission that she clearly was not as upright and flawless as she sought to project. At the same time the Applicant confirmed that it was her responsibility to ensure that the files are compiled and on par with the required standard.
Most surprisingly of all, the Applicant sought to argue that (unconvincingly and almost in unintelligible manner) she had no training on how to compile both POEs and POAs despite being issued with ICASS guidelines- by implication saying there was really no obligation on her to read or familiarize herself with the ICASS guidelines- the absolute core function of a lecture in the employ of the Respondent. This argument, needless to say, failed.
Right to the bitter end, the Applicant sought to distance herself from what her ownership of the petition before the college principal meant. In desperation she stated that she took ownership of the petition with an understanding that she was going to serve as the representative or spokesperson of the staff members together with Mr. Liphuting. However, Mr. Liphuting disputed this version of the Applicant that no one was assigned as a spokesperson or representative of the staff members. Again, most surprisingly the said chairperson of the petition meeting distanced himself from the petition and was not part of the meeting between the college management and the staff members. This argument, needless to say, failed.
Lastly, but not least, she sought to argue that she saw an invoice of the alleged R 100 000.00 in Ms. Masheli’s office which was spent to renovate the office of the campus manager, without any proof and not even put this to the Respondent’s witness Mr. Wentzel. It was the Applicant’s evidence that Mr. Wentzel told them an amount of R 100 000. 00 was spent to renovate the office but failed to put this to him during cross-examination. Nothing stopped the Applicant in calling Ms. Masheli as witness to come and corroborate her version that indeed such amount was spent to renovate the office of the campus manager.
There is no doubt that the Applicant knew the consequences of her actions, but continued, possibly thinking she was not the only one, she had somehow become immune to any form of action against her, or she will never be dismissed outright.
There can be no doubt that the Applicant was entrusted with the responsibility of teaching the students and trusted by the Respondent. The witnesses of the Respondent testified that the offences committed by the Applicant are serious and such conduct have an impact, not just on employment relationship, but the Respondent’s business as a college and relationship with its students and community at large.
In the premises, I therefore find the dismissal of the Applicant to have been substantively fair.
With regards to the Applicant’s complaint related to procedural fairness, was whether the Applicant was correctly charged in respect of ELRC FETCBU Resolution 1 of 2013. There was no evidence placed before me to suggest that the Applicant was incorrectly charged nor was the chairperson of the hearing not properly appointed. The Applicant was afforded all rights related to procedural fairness- most importantly the right to state her case and to cross-examine the Respondent’s witnesses. She was clearly not prejudiced in any manner.