Commissioner: NTATE MABILO
Case No.: ELRC8-21/22MP
Date of Award: 27 SEPTEMBER 2021

In the ARBITRATION between:

SOLIDARITY obo Brown, PGZ
(Union / Applicant)
and

DHED- Nkangala TVET College (Mpumalanga)
(Respondent)

Union/Applicant’s representative: Mr. Hannes de Kock of Solidarity
Union/Applicant’s address:
Telephone:
Mobile:
Telefax:

Respondent’s representative: Mr. T Mokubyane
Respondent’s address:

Telephone:
Facsimile:
Email:

DETAILS OF HEARING AND REPRESENTATION:

1. The arbitration of the Unfair Labour Practice dispute between Solidarity obo Brown,PGZ (Applicant) and the DHET- Nkangala TVET College (Mpumalanga) (Respondent) was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings. The arbitration hearing was held on 30 August and13 September 2021 in terms of section 186(2)(b) of the Labour Relations Act 66 of 1996 (“LRA’’).
2. The applicant was represented by Mr. Hannes de Kock of Solidarity while the respondent was represented by Mr. T Mokubyane of DHED.
3. The proceedings were conducted in English and were manually and digitally recorded.
PRELIMINARY ISSUES
4. The respondent party raised a point In Limine stating that the council lacked jurisdiction because the dispute arose on 29 October 2020 and referral was made on 6 April 2021, more than 60 days later. After both parties addressed me on the matter, I ruled that the dispute was referred in time to the CCMA on the 26 January 2021 before the CCMA made a ruling on I April to refer the matter to the council. I informed the parties that my ruling will be part of the arbitration award. The matter was referred in time and the council had jurisdiction to arbitrate.
ISSUES TO BE DECIDED
5. The dispute was referred to the ELRC by the applicant as an Unfair Labour Practice carried out by the respondent, in respect of section 186(2)(b) of the LRA.
6. I was required to determine whether the respondent acted unfairly in terms of the decision to charge the applicant, and the sanction imposed on the applicant at the applicant’s disciplinary hearing, where she was issued a final written warning and a one-month suspension without pay.
7. Required remedy is compensation of one month’s salary or reversal of the suspension without pay.
BACKGROUND TO THE DISPUTE
8. The applicant is a Work Integrated Learning Manager/ Campus Manager and she started working for the respondent from 1 May 2009.
9. Her monthly salary was R 43 936.00.
10. The dispute arose on the 29 October 2020; it was referred to CCMA on 26 January 2021 and CCMA referred it to the council with a ruling dated 1 April 2021.
11. The applicant was found guilty of Gross Dishonesty and incitement of students, which occurred on or about February 2019, and the disciplinary hearing was held in March 2020. The charges were four (4) and she was found guilty of two(2).
12. As the matter referred to the ELRC by the applicant relates to section 186(2)(b) of the LRA, concerning unfair suspension or any other unfair disciplinary action, short of dismissal, the onus of proof rests upon the applicant for this claim to succeed.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Ms. Phumelele Brown testified under oath that:
13. She worked for the respondent since 1 May 2009. All went well but things changed when she discovered corruption and reported it. From there she had been victimised and removed from her position first in 2012 and again in 2015 to date. When asked about her job description she replied that she did not have one but her duties involved dealing with partnerships, placement of students (internships).
14. The witness was referred to the charge sheet in the bundle of documents and she pointed out that she was found guilty on charges one(1) and four(4), for gross dishonesty and incitement of students. She stated that she did not do any of those two alleged misconducts. After she was found guilty and sanctioned, she lodged an appeal, which was unsuccessful. The letter of appeal and the response thereto were referred to in the bundle of documents.
15. Regarding the charge on dishonesty she indicated that she did not write the controversial email in which she is said to have been dishonest. The witness stated that the email address was accessible to and used by other employees. She further stated that on that particular day she was not at work in the office. The email address was being used by interns and receptionists.
16. The witness further said that the email was placed in Phindi Dlamini’s office and Phindi was an intern. The email was not specifically allocated to her, she said.
17. When asked about her part in internship she replied that she was the link between Insurance Sita and the College and the companies which place learners. She said she had a database of all learners in need of internships and when the INSITA advertise for internships the list was used.
18. The charge stated that she sent the email to the CEO of the College, Mr Cain Maimela and the witness denied that it was sent by her to him.
19. Regarding charge four(4) for incitement of students, the witness stated that she was not there when the students’ agreements were sent to the office of the CEO and again, he was not there on the day the students went to the office following up their agreements. She never spoke to the students about those agreements, she said. In short, the witness denied the incitement of students charge.
20. In cross examination, the witness was asked what corruption did she discover and she said it was related to a number of things such as procurement of goods. Groceries for R4000.00 were paid and she was at the college and never seen the groceries bought with that money and she was ordered to pay. She further stated a building not in good condition but R9 million was spent on it.
21. It was put to the witness that whilst she testified that she was on leave on the day of the email relating to charge one for dishonesty, her supervisor will come and testify that the witness was not on leave. She replied that she was not at work on that day.
22. She was asked whether she was the manager of ELU and she confirmed. She added that there were other ELU’s as well.
23. When asked whether she had before the incident ever emailed the CEO, she confirmed that she did for something else.
24. Asked whether she did use the email she replied that she did and if it were her, she would have signed the email that it was from PG Brown.
25. A version was stated that Mr Modishane and the CEO were going to testify that they used to communicate with the witness using the same email. The witness replied that as regards the specific controversial email, she was not there at work to could have used it.
26. It was again put to the witness that a witness was going to testify that she was the one who told them (students) to march to the CEO and she said she never did that. It was further said that the CEO will also testify that the students said they were told by Ms Brown to much to his office. The witness replied that she never instigated any students.
27. In re-examination, the witness re-iterated that she was not in office on the day of the email.
28. When asked how long ago did this happen, she replied that it was in February 2019.
29. The witness was asked to explain the process of placing students in internships and she explained as follows: INSITA advertise, the college respond by completing the forms and sending to different companies. When companies respond, the forms are sent to the INSITA and the INSITA make their choices depending on funding available. The one which caused the controversy was an additional and the INSITA only wanted 10 learners. INSITA said that from each company, they were only going to take one learner.
Applicant’s second witness, Busisiwe Bundulwayo testified under oath and stated the following:
30. That she worked with the applicant on the INSITA project. The INSITA was dealing with internship and not learnership. She clarified that the recruitment was done by the college and the INSITA only approved. There was no dishonesty in what was said in the controversial email. She confirmed that the email of 25 February 2019 that appeared on page 19 of the bundle was addressed to her. The witness said the only incorrect thing in the email was the word recruiting.
31. The witness described the process as follows: INSITA will advertise to TVET’s to apply for funding. TVET’s will source host employers. Host employers will give expression for INSITA to evaluate. INSITA will give feedback to the college and the college will manage the relationship of learner, host and college. INSITA do the funding. The role of the college was to get the host, recruit learners, pay the stipend to the learners and do monitoring, she said.
32. In cross examination the witness was asked to point out what was wrong with the email to the CEO and she replied that it was only the word recruit because recruitment was done by the college. That was the only mistake in the email.
33. She said that she was a specialist for Work Integrated Learning for the INSITA from 2011 to August 2019 and the incident happened during her time.
34. There were no questions in re-examination.
The third applicant’s witness was Silindile Pumla Magogo who testified under oath and said the following:
35. That she was an intern at the college in 2019. The email in the ELU office was used by everyone.
36. That some students came to the office enquiring about their applications and Ms Brown was not in office that day. They were told that the applications were at the Head Office. From there herself and those who were in the office did not know what happened with the students.
37. In cross examination she was asked how many people worked in the office where the email station was and she answered that they were 5 or 6.
38. When asked whether interns were also responding to emails, she answered that they were on Ms Brown’s instructions.
39. The witness was asked to explain what happened when the students came for their applications and she said: Herself, Martha Letuke and Nelisiwe Msiza who was an intern, were the ones who took the contracts to head office. Ms Brown was aware as she was informed.
40. Asked where was Ms Brown when the students came, the witness replied that Ms Brown was not in the office but at a meeting somewhere or out somewhere.
41. The witness was told that Mr Maimela will tell that the students said they were told by Ms Brown to go to the CEO’s office. She replied that she did not know that, maybe they phoned Ms Brown.
42. There was no re-examination.
The applicant party closed its case.
THE RESPONDENT`S CASE:
The respondent’s first witness, Mr. Cain Mabudutswane Maimela, testified under oath that:
43. That he was the CEO, Principal and Accounting Officer of the College.
44. He testified that the ELU office emails were used by 3 employees attached to the office.
45. As regards the email of the 25 February 2019, he said whenever he sent email to the ELU he used that email address.
46. When asked how did he communicate with Ms Brown the witness replied that he used the ELU email whenever communicating to Ms Brown.
47. He insisted that even if Ms Brown would deny, she called him before the email in question. The process outlined in the email was not correct, he said.
48. When asked what was the harm done the witness said that the INSITA might not fund the students from the college in the future.
49. Regarding charge four (4) (Gross dishonesty), the witness told the hearing that he was not in the office on that day. Thato Ramphakela told the witness that students came to the office and they were angry with the witness.
50. Asked what harm could the incident cause, he said that it might have let to someone being injured.
51. Under cross examination the witness was asked for proof that it was the applicant who sent him the email on 25 February 2019. He replied that Mrs Brown called him first and thereafter the email followed.
52. When asked whether he was aware that the email is used by more than one person, the witness replied that he was communicating with Ms Brown on that email. When asked what harm was caused by the email, he said the college will be seen as being not transparent.
53. Regarding charge four (4) (Gross dishonesty), the witness confirmed that he was not in the office and was told by someone else. He also did not know how many students came to the office and admitted that it was not the first time that such incident occurred.
54. In re-examination, he was asked whether there was any reason for him to lie and he replied that there was no such reason.
The respondent’s second witness, Mr. Jantjie James Modishane testified under oath that:
55. He was the Deputy Principal Academic Services and former supervisor of the applicant.
56. The witness was referred to the email of the 25 February 2019 and asked about the whereabouts of Mrs Brown of that day. He replied that Ms Brown was not at work on that day.
57. Again the witness was asked where was Ms Brown if not at work and he replied that he did not know as during that time they used different buildings. Yet according to his attendance register, she was not at work.
58. He admitted that Ms Brown was using the email address and that she could use it even while not at the office, if she had a laptop with her.
59. In cross examination the witness was asked whether the ELU email was the only email in that office and he confirmed that it was so.
60. The respondent closed its case.

ANALYSIS OF EVIDENCE AND ARGUMENTS:
61. The dispute was referred as unfair suspension or disciplinary action in terms of section 186(2) (b) of the Labour Relations Act 66 of 1995 as amended. According to the LRA there are specific actions that constitute unfair labour practice and they are stated as follows:

(a) unfair conduct by employer relating to the promotion, demotion, probation, training or provision of benefits.
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee.
(c) failure or refusal by an employer to re-instate or re-employ a former employee in terms of any agreement.
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act of 2000.

62. The applicant’s matter is directly linked to subsection (b) above.

63. I am required to determine the alleged unfairness of the disciplinary action short of dismissal by the respondent to the applicant. Therefore, the onus rest with the applicant to show that the respondent’s action amounted to unfair labour practice.

64. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
65. In the case at hand, the applicant was found guilty of two charges, one for gross dishonesty and the other for incitement of students. I will therefore address the two reasons, which led to the disciplinary action separately as follows:
Gross dishonesty:
66. The applicant had been found guilty of gross dishonesty in that she wrote an email to the CEO informing him that the process followed when recruiting students for the INSITA learnership was that the College sends forms to the INSITA whereby the INSITA responds by recruiting one learner for each company and it was ten companies in this case. The said email was written on the 25 February 2019. This is the version of the respondent which led to disciplinary action against the applicant.
67. The applicant’s version is that the email in question was not sent by her as she was not at work on that day. Evidence was provided and corroborated by her former supervisor that she was not at work on the day in question. According to the applicant the email was accessible and used by all those who worked in the ELU office including interns. This was also corroborated by one former intern, Silindile Pumla Magongo, who testified under oath.
68. One of the witnesses, Busisiwe Bundulwayo, to whom the email was addressed and copied to the CEO, was made to read the email and commend. She found only one error in the use of the word recruit instead of approve. In her own words after reading the email she said that there was no dishonesty in what was said in the email. Busisiwe was the specialist for Work Integrated Learning at INSITA at the time of the incident. This means that even if the email was written by the applicant, we must still find the dishonesty in the email.
69. In Nedcor Bank Ltd v Frank and others [2002] 7 BLLR 600 (LAC) the court held that dishonesty entails a lack of integrity or straightforwardness and in particular, a willingness to steal, cheat, lie or act fraudulently and it is normally used to describe an act where there has been some intent to deceive or cheat. A charge of dishonesty therefore requires some proof that the person acted with intention to deceive. This is only dishonesty and not gross dishonesty that the applicant had been charged for.
70. Having read the charge and the email, listened to the adduced evidence and considered what dishonesty entails according to the law, I am not convinced that there was any dishonesty in the email even if for argument’s sake it was written by the applicant. Gross dishonesty would require more than what the law require for an act to be classified as dishonesty. I am therefore not persuaded to believe that there was any gross dishonesty from the email of the 25 February 2019.
71. I also noted that the incident occurred on 25 February 2019 and the employee was charged on 27 February 2020, more than a year later which is excessive delay and not acceptable. The employer became aware of the email on the day it was written and received but decided to spend a year without charging the employee. This implies that the employer had found no fault with the email and had accepted it as normal. After a full year the employer want to make an issue out of what was accepted as normal.
72. It is again my observation that the email in question was addressed first to Busisiwe Budulwayo then Mr Cain Maimela. If it meant to mislead anybody it should be the first addressee because the second is copied and is not primary recipient of the mail.

Incitement of students:
73. The charge stated that on or around February 2019, the applicant informed students that the CEO did not sign their agreements thereby influencing the students to march to the CEO’s office.
74. The respondent alleged the incitement and had a witness to testify on the incitement. The witness was not there when the alleged incident happened. What Mr Cain Maimela testified on was what he was told by Thato Ramaphakela who was present when the students came. All he was told was that the students came to his office and they were angry with him. The hearing was denied information as to who said he was told what by whom when and where. Answers to these questions would have cast light on how the incitement occurred.
75. The applicant testified that she never incited any students and she was not there on the day of the incident. It was corroborated by Silindile Pamela Magogo who testified that she was present when the students came to ELU office regarding their applications and Ms Brown was not there.
76. In the case of Economic Freedom Fighters v Minister of Justice and Constitutional Development (87638/2016) [2019] ZAGPPC 253, the High Court defined incitement as the intention, by words or conduct, to influence the mind of another in the furtherance of a crime. The decisive question being whether the accused intended to influence the mind of another towards the commission of a crime. In the case at hand, I lack information from evidence adduced to conclude that there was any incitement by the applicant.
77. It is again noted with concern that the incident happened in February 2019 and the applicant was only charged after a year in February 2020. My comments regarding the previous charge on delayed action are equally applicable here.
78. On the basis of the above reasons, taking into account the case law cited and based on the balance of probabilities, I am not convinced of any wrongdoing on the part of the applicant and I am persuaded to believe that the applicant had discharged the onus for unfair disciplinary action against her.
AWARD:
1. The applicant successfully discharged its onus in this matter to prove the respondent’s unfair conduct in respect of its charges, findings, and sanction, relating to the applicant.
2. As a result of the aforesaid, the final written warning issued to the applicant and the one-month suspension without pay are nullified.

3. The respondent is further ordered to pay the applicant, Ms Brown PGZ one month’s remuneration equal to R 43 936.00 which she forfeited during the suspension.

4. The amount to be paid by no later than 30 October 2021, failing which it shall earn interest from that day.

Ntate Mabilo
ELRC Dispute Resolution Panellist