28 October 2025 -ELRC400-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

CASE NO.: ELRC 400-25/26GP

In the matter between:-

M.J MAKAU APPLICANT
and

DEPARTMENT OF HIGHER EDUCATION AND TRAINING RESPONDENT

ARBITRATOR: Mmamahlola Gloria Rabyanyana
HEARD: 09 September and 01 October 2025
CLOSING ARGUMENTS: 08 October 2025
DATE OF AWARD: 27 October 2025

SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice by employer relating to salary suspension.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

A virtual arbitration was held on 09 September and 01 October 2025, respectively. Mr. N. P Sekonya, a NEHAWU union official, represented the applicant. Mr O. Jacob represented the respondent.
I recorded the proceedings digitally. The parties submitted their closing arguments by 08 October 2025.
BACKGROUND TO THE ISSUE
The applicant was found guilty of failing to capture the ISAT Marketing 2B marks of the students, thereby prejudicing the College administration. The sanction was a two-month suspension of his salary. Dissatisfied with the sanction, he referred the dispute of unfair labour practice to the Council for conciliation. The dispute could not be resolved, and a certificate of the outcome of the conciliation to that effect was issued. The applicant requested that the dispute be arbitrated.

ISSUE TO BE DECIDED

I am required to decide whether it was the applicant’s responsibility to capture the marks. The respondent contends that it was his responsibility to capture the marks and verify that they were captured accurately for submission to the respondent. The applicant contends that it was the responsibility of the intern to capture the marks. His responsibility was to verify that the marks were captured accurately.
Furthermore, I will determine if the sanction was consistent since the senior lecturer and the HOD, were given a final written warning. The two officials allegedly failed to verify that the marks were captured on the system and that they were a true reflection.
Should I find in favour of the applicant, I will further determine the appropriate relief. The applicant seeks. SURVEY OF EVIDENCE AND ARGUMENTS
AGREED FACTORS
The parties agreed to the following factors as being common cause:-
7.1 The applicant is a Level1 Lecturer;
7.2 He was employed on 01 February 2008;
7.3 His basic salary is R29 541,91 with a gross of R44 040.00;
7.4 The sanction for the offence was a two-month suspension of his salary;
7.5 He neither captured nor verified that the marks were captured;
7.6 The marks were not captured and submitted to the Department of Higher Education and Training resulting in prejudice to the students since their results were issued late;
7.7 The Senior Lecturer and the HOD were issued a final written warning
for failure to conduct the verification that the marks captured on the system were a true reflection.
Mphethe Johannes Makau testified that his role is to mark the papers and hand over the marks to the intern for capturing. He was assigned this intern to capture the marks. The marks are placed on the Thusanang System for record purposes. It was an oversight on his part that the marks were not captured. It was the first time in his 17 years that he failed to capture the marks.
He apologized for the mistake in his statement on C-R, which read thus: “This was a glaring oversight on my part, as I should have diligently browsed all the 11 pages of the marksheet bundle before students could sign it off. It was also evident that students easily ignored the ISAT marks, as their focus was on the ICASS examination qualification.”
His Senior was responsible for verifying the marks, which she failed to do. During cross-examination, he conceded that he was responsible for supervising the intern. However, as she was always accurate, he did not monitor her. He gave the students the record sheet to confirm and sign if their marks were correct. It was his responsibility to check the accuracy of the marks. However, he failed to check the accuracy when the students gave him back the record sheet.
The respondent was not consistent in issuing the sanction because the fact that he was the first offender was not considered. He conceded that his other colleague had previously been given the same sanction.
When a version was put to him that the senior lecturer and Head of Department were not given the same sanction because they did not cause the delay, he stated that had they verified, this could have been avoided. It was human error on his part.
Thandiswa Constance Lufundo testified for the applicant that she was the intern from 1 September 2022 to 28 February 2024. She assisted the lecturers, including the applicant, in capturing the marks. The applicant gave her the ISAT marks to capture.
During cross-examination; she captured the marks and gave the applicant a printout of the marks. She does not know what happened to the marks, and if someone could delete the marks from the system.
Elizabeth Magdelina Pretorious testified for the respondent that she is the Head of Department. The lecturers are responsible for capturing the marks accurately. If they are assisted by interns, it remains their responsibility to ensure the marks are captured accurately.
The lecturers must verify the captured marks with the handwritten marksheet. Once verified by the lecturers, students also verify and sign that they agree with the captured marks. It is the lecturer’s responsibility to ensure students verify and sign for the marks. The discrepancies are brought to his office for corrections. The applicant failed to inform her that the marks were not captured. She became aware in January 2024. The Senior lecturers bear the same responsibility to verify and report to her the discrepancies.
If a mark was captured and deleted, the system will reflect ‘0’. If a mark was not captured, it reflects ‘-1’. In this case, the marks were not captured. Resultantly, the results were released late in April instead of January.
The students were adversely affected. Level 2 ICAT integrates 3 tasks (three subjects), which the Department blocked. The minimum requirement to proceed to the next level is 5 subjects. With the three subjects missing, they could not proceed to the next level.
During cross-examination, she confirmed that the verification of the marks lies with the lecturers. Thereafter, they must submit the scripts and marksheet to the senior lecturer for further verification. She does not know if the applicant submitted the scripts to the Senior Manager.
Ramaepe Noge testified that he is the Campus Manager that the HOD and the senior manager were issued the final written warning. The applicant was more responsible. During cross-examination, he confirmed that the HOD failed to oversee the process, hence the sanction. It was the applicant’s responsibility to verify the accuracy of the marks captured by the intern.

CLOSING ARGUMENTS

The applicant’s representative argued that the students whose marks are incorrectly captured or not captured were expected to inform him so that he could bring it, together with evidence of marks (scripts) to the attention of the HOD for correction. No student brought to his attention any concern about marks not being captured. For him, students’ signature on the marksheet implied completeness of marks.
It is difficult to comprehend the respondent’s reasoning that the applicant and the HOD’s conduct warranted different sanction, while the HOD claimed that she could not have known about the error if the applicant had not brought it to her attention. That, this as a result, prevented her from taking corrective steps to ensure completion. If this is acceptable to the respondent, then it should be acceptable that the same error was not brought to the attention of the lecturer by the students who even signed the record sheet confirming that their marks were complete.
His immediate superiors, the Senior Lecturer and HOD, are guilty of the same offense. The two managers failed to verify marks as required by the departmental assessment policy guideline.
The approach of the court has been that the employer has acted unfairly where it fails to provide a fair and objective justification for the differential treatment of dismissed employees. A classic example of this approach is in Edgars Consolidated Ltd (Edcon) v CCMA ([2009] 1BLLR56 (LC). The court held that both employees were guilty of the same misconduct, and the employer was found to have acted unfairly because of his failure to discipline the other employee without providing satisfactory justification for this failure to act.
The senior lecturer, the HOD and the system alerts all missed the error. The responsibility for the incomplete submission therefore rests at management level. The problem was solved, and no student was disadvantaged.
The respondent argued that it is common cause that the applicant failed to check if his intern captured the marks accurately. Further, he did not bring to HOD’s attention any discrepancies in marks for correction. It is his responsibility to ensure that the marks are in the system, not those of an intern. An intern is under the supervision of a lecturer. He took responsibility for not capturing the marks in his statement.
He admitted that he was negligent in the execution of his duties he was not diligent. Further, he was in the presence of students when they signed. Therefore, it was his responsibility to ensure that marks were captured. The respondent has demonstrated that the sanctions are not different.
The applicant cannot be negligent in the execution of his duties and expect his seniors to be disciplined the same way as he caused the problem. If that was allowed, employees would deliberately hide behind their seniors and escape discipline. Therefore, inconsistency is not substantiated, and there is no unfair labour practice.

ANALYSIS OF EVIDENCE AND ARGUMENT

The applicant bears the onus to prove that the respondent committed an act of unfair labour practice when it suspended his two months’ salary for failure to capture the ISAT marks.
It is common cause from the pre-arbitration minutes that the applicant failed to ensure that marks were captured and to verify that they were accurately captured. Furthermore, it is common cause that the marks were not captured and submitted to the Department of Higher Education and Training, resulting in prejudice to the students since their results were issued late.
The pre-arb minutes corroborate the applicant’s admissions in examination in chief and cross-examination. He admitted that it was his oversight that the marks were not captured, and he failed to check with the intern that the marks were captured.
During cross-examination, he conceded that he was responsible for supervising the intern. However, as she was always accurate, he did not monitor her. This was not the only oversight; he allegedly gave the students the record sheet to confirm and sign if their marks were correct. He admitted that it is his responsibility to check the accuracy of the marks. However, he failed to check the accuracy when the students gave him back the record sheet.
He further apologized for the mistake in the following: “This was a glaring oversight on my part, as I should have diligently browsed all the 11 pages of the marksheet bundle before students could sign it off. It was also evident that students easily ignored the ISAT marks, as their focus was on the ICASS examination qualification”.
His admissions are overwhelming, discounting his intern’s contradictory evidence that she had captured the marks. Lufundo has proved herself to be unreliable and not a credible witness. Her version that she captured the marks and gave the applicant a printout of the marks, and that she does not know what happened to the marks, and if someone could have deleted the marks from the system, is a fallacy.
She contradicted the applicant, knowing very well that the marks were not captured. Despite that it is common cause that the marks were not captured, the HOD confirmed that when the marks are not captured, the system would reflect ‘-1’, which was the case. If the marks were captured and deleted, it would reflect ‘0’, which was not the case.
The respondent’s testimony corroborated the applicant’s version that he committed the offence. His responsibility in this scheme is overwhelming. He is the cause of the delay in the release of the results. The senior lecturer and Head of Department relied on him to execute the functions. Therefore, it is inconceivable that his offence is not serious compared to theirs.
He failed to appreciate that his negligence was serious, as it adversely impacted the students. I am not persuaded that the respondent did not consider that he was the first offender when issuing the sanction. The senior lecturer and Head of Department were issued a final written warning short of dismissal. Their sanction is more severe than the two-month salary suspension. I am not persuaded that the sanction was unfair.
In the premises, the applicant failed to prove on the balance of probabilities that the respondent committed an act of unfair labour practice for not appointing her to the promotional post in dispute.

AWARD
I order that:

The respondent, the Department of Higher Education and Training, did not commit an act of unfair labour practice against the applicant, MJ Makau.
The dispute is dismissed with no costs.

Signed and dated at Pretoria on 27 October 2025.