Arbitrator: Minette van der Merwe
Date of award: 27 November 2023
In the Arbitration between:
PSA obo Siyabonga Mzolo 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 the Public Servants Association of South Africa (PSA) on behalf of Siyabonga Mzolo (the Applicant) and the Department of Higher Education and Training (DHET) – Free State (the Respondent), was held on 29 September 2023, 28, 29 & 30 March 2023, 11 & 12 May 2023, 10 August 2023 (postponed), 29 September 2023 (postponed), and 13, 14 & 15 November 2023 at Maluti TVET College in Bethlehem.
2. The Applicant was represented by Mr Nico Cloete, Full Time Shop Steward. The Respondent was represented by Mr Mpe Ngcosane, Senior Labour Relations Officer of the Respondent. On 13, 14 & 15 November 2023 Mr Ngcosane joined proceedings virtually (MS Teams).
3. The proceedings were digitally recorded, and handwritten notes were kept. Interpretation was done by Mr Themba Tshabalala initially, and by Ms Philani Nyezi on 13, 14 & 15 November 2023.
ISSUE TO BE DECIDED
4. The dispute was referred in terms of section 191(5)(a)(i) of the Labour Relations Act, 66 of 1995, as amended (the LRA), as a claim of unfair dismissal for misconduct.
5. Parties had concluded and submitted Pre-Arbitration minutes . In terms thereof, I am called upon to determine the procedural and substantive fairness of the dismissal as follows:
a) Procedural fairness:
i. Whether the Respondent correctly charged the Applicant in terms of ELRC Collective Agreement Resolution 1 of 2013.
ii. Whether the Applicant ought to have been charged in respect of HR Circular 13 of 2015 read with the Further Education and Training Colleges Amendment Act, 3 of 2012.
iii. Whether the Chairperson was duly appointed in terms of hat the Respondent claims to be the correct disciplinary code and procedure.
b) Substantive fairness:
i. Whether the rule existed in the workplace and whether he knew the rule that the actual arrival time at work must be recorded on the attendance register, when late-coming has been reported to a superior.
ii. Whether the Applicant has breached the rule.
iii. Whether dismissal was the appropriate sanction.
6. In the event that I find in his favour, the Applicant sought to be retrospectively reinstated.
BACKGROUND TO THE ISSUE
7. In terms of the Pre-Arbitration minutes submitted by parties, the following facts were agreed to be common cause:
i. The Applicant commenced employment with Maluti TVET College on 1 February 2012.
ii. The Applicant migrated to the Respondent from April 2015 and became an employee of the DHET during April 2015.
iii. The Applicant held the position of a PL (post level) 1 Lecturer in Engineering Studies at the time of his dismissal.
iv. He earned a basic salary of R 24 404.50 (twenty-four thousand four hundred and four rand, fifty cents) per month at the time of his dismissal .
v. The Applicant was found guilty and dismissed on the first and fourth charges only.
vi. The Applicant was found not guilty on the second and third charges.
vii. The Applicant was dismissed on 24 May 2022.
viii. The Applicant appealed the outcome, and the dismissal was upheld by the appeals authority.
8. The Applicant was charged, found guilty and dismissed for the following charges only , quoted verbatim:
“Charge 1:
Alleged gross dishonesty in that:
o On 03rd April 2018, you committed an act fraud when you booked yourself on duty as if you have arrived at work at 07h30 am when in actual fact, you arrived very late in the afternoon which is considered that you were not at work.
Charge 4:
Alleged gross insolence in that:
On 15th March 2019, you were grossly insolent towards your Campus Manager when you refused to submit a file and blatantly told him in front of other colleagues that you will not submit such a file and that, you are not scared and/or afraid of him.”
SURVEY OF EVIDENCE AND ARGUMENT
9. 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 a summary of the evidence. If evidence is not captured herein, it does not mean that it was not considered.
Documentary:
10. Bundles “A1”, “A2” and “A3” was submitted into evidence by the Applicant, and bundles “R1”, “R2” and “R3” was submitted into evidence by the Respondent. Its veracity was not disputed and it was accepted as it purported to be.
Evidence of the Respondent:
11. The 1st witness, Veli Eric Mabena (“Mabena”), the Principal at Maluti TVET College since 2013, testified that there were two types of employees: employees appointed under the Employment of Educators Act, 76 of 1998, and employees appointed under the Public Service Act, 103 of 1994. Lecturers were appointed in terms of the Continuous Education and Training Act, 16 of 2006 (previously the Further Education and Training Colleges Act, 16 of 2006), and they fell within the jurisdiction of the ELRC. This status quo would remain until a new bargaining unit for Lecturers was establish. It is for this reasons that the Applicant was charged, and correctly so, in terms if ELRC Resolution 1 of 2013. PSCBC Resolution 1 of 2003 would be applied to administrative and other support staff. In accordance with ELRC Collective Agreement 5 of 2008 the ELRC has the power to establish a FETC bargaining unit within itself, therefore all disputes of Lecturers must be referred to the ELRC which is then dealt with by the colleges unit within it. PSA was a signatory to ELRC Collective Agreement 5 of 2007, which dealt with the transfer of employees from the Department of Education to individual FET Colleges, as a part of the CTU-ATU . PSA is also a signatory to ELRC Resolution 1 of 2013. PSA would have knowledge of the correspondence issued by the ELRC General Secretary, Ms NO Foca, on 14 January 2016 in which it was unambiguously stated, with concern to employees employed in terms of the FECT Act, that disputes of Lecturers must be referred to the ELRC, whereas disputes of support staff must be referred to the GPSSBC. He denied the version that a PSCBC Resolution could still be entertained under the auspices of the ELRC, and he denied the version that PSCBC Resolution 1 of 2003 applied to Lecturers. He disagreed that the Respondent was not a party to ELRC Resolution 1 of 2013, and that the aforementioned resolution did not constitute a collective agreement. Although Maluti TVET College had to develop its own disciplinary procedure, it did not preclude the Respondent from utilizing the disciplinary code and procedure as per ELRC Resolution 1 of 2013 until such time that same is developed and implemented, and in this instance, Maluti TVET College has adopted ELRC Resolution 1 of 2013 as its disciplinary code and procedure. FEDCEO, on behalf of all fifty Colleges, including Maluti TVET College, had adopted same .
12. The Applicant was, at the time of his dismissal, a departmental employee, appointed in terms of the Continuous Education and Training Act, 16 of 2006. From his payslip deductions were made towards the ELRC, as the bargaining unit, as well as towards PSCBC, as the main Bargaining Council under which the ELRC operated. A PSCBC Resolution could not apply to the Applicant if deductions were made towards ELRC. ELRC Resolution 1 of 2013 applied to the Applicant, and he was correctly charged in terms thereof. In terms of the employment contract of the Applicant which was done in terms of the Further Education and Training Colleges Bargaining Unit established through ELRC Collective Agreement 1 of 2013, it was clear the disciplinary code and procedure in terms of the ELRC was applicable on the Applicant, as the scope of the Further Education and Training Colleges Bargaining Unit established through ELRC Collective Agreement 1 of 2013 included Lecturers. PSCBC Resolution 1 of 2003 would have been the incorrect Resolution in terms of which to have charged the Applicant. It was stressed that no Circular can supersede a Collective Agreement but may be read with such a Collective Agreement.
13. The Principal, being himself, has the delegated authority, as signed off by the Minister of Higher Education and Training , to take disciplinary action against, amongst others, PL 1 – 3 employees in terms of the Continuous Education and Training Act, 16 of 2006, which included the Applicant. He further had the delegated authority to sign the letter of dismissal of the Applicant, which he had done. The Applicant was charged and dismissed in terms of ELRC Resolution 1 of 2013, and he confirmed that the, neither the Further Education and Training Colleges Act, 16 of 2006 nor the Continuous Education and Training Act, 16 of 2006 contained a disciplinary code within it. The DHET Circular 13 of 2015 did not prescribe the process for the appointment of a presiding officer. Clause 7.2 of ELRC Resolution 1 of 2013 it states: “The presiding officer must be appointed by the employer.” Having had the delegated authority to take disciplinary action in the case of the Applicant, he had appointed an external chairperson, who was properly appointed. He confirmed that Daniel Matlho, from Matlho Attorneys, was specifically appointed as the presiding officer of the Applicant’s disciplinary hearing and conceded that the disciplinary hearing outcome was signed by Nigel Masalla, as the chairperson. He speculated that it could have been the actual law firm that was appointed, and then another individual was sent from the same firm to be the chairperson.
14. The 2nd witness, Abram Sidwell Mosala, (“Mosala”), was the HOD at Itemoloheng Campus during March 2019, where the Applicant worked, but he was currently the Acting Campus Manager. In respect of the first charge, he testified that the Applicant had called him around 09h00, and he was informed that the Applicant would be late for work. When he called the Applicant stated that he was still at his home in KwaZulu-Natal. He denied the version that the Applicant said he was in Ladysmith when he called. He then informed the Campus Manager about the Applicant’s message. It was put to him that he had testified in the disciplinary hearing that the Applicant had called him before 07h30, to which he maintained that the Applicant called him at 09h00. Workdays usually start at 07h30. He did not know the exact time the Applicant arrived at campus, but he was seen by one of the senior lecturers, Ms Ramotsie, who reported it to him. The Applicant did not contact him to report his arrival at the campus. The Applicant had subsequently completed the attendance register to indicate that he had reported at 07h30, which was impossible, and dishonest. Ms Ramotsie had cancelled the incorrectly recorded time and wrote 13h50 as the time the Applicant had reported for work, as it was the time that she saw the Applicant had arrived at campus. It was prohibited conduct to record a different reporting time on the attendance register than what an employee actually reported for duty, as this would have a financial impact. Bart B of a leave form has to be completed for every instance of two hours’ late reporting for work of Lecturers. For every eight hours not at work, a full day of unpaid leave will be processed. He denied the version that the Applicant did not know he had to report the actual reporting time in the attendance register, and testified that the Applicant was well aware of the rule, as the rule was regularly discussed in morning staff meetings. Lecturers, just like Educators, do not have annual leave. The Applicant having only arrived at work on 13h50 on 3 April 2022 he was considered not to have been at work at all, as Lecturers’ workday end at 14h00. The Applicant’s actions constituted fraud, as he had completed the attendance register dishonestly and he was paid for that day. He confirmed that he had given the Applicant permission to report late for work, but he had not given the Applicant permission to lie on the attendance register as to his actual arrival time. He stated that, even if it is accepted that the Applicant arrived for work between 09h30 and 10h30, he still recorded his arrival as 07h30, which was dishonest and fraudulent, from which he had benefitted financially.
15. In respect of the fourth charge, he testified that Lecturers were supposed to submit their files for ICASS monitoring. The files contained the portfolio of assessment, subject file and evidence file of each Lecturer and learner. The submission of such files for ICASS was part of the inherent job requirements of a Lecturer. By the time of the submission of the files during March 2019, the Applicant had been a Lecturer for three years, and were well acquainted with the process. On 15 March 2019 the Applicant had refused to submit the files when requested to do so during a morning staff meeting. The Applicant’s words of refusal to the Campus Manager, in his own language was: “I am a man. I am not afraid of you. You do not intimidate me. You are not going to get those files.” These words were uttered by the Applicant in the staff room in front of colleagues, whereafter the Campus Manager called the Applicant to the boardroom for a separate discussion, which discussion he (witness) was part of. In the boardroom the Applicant repeated the words quoted above. The Campus Manager tried to advise the Applicant that his conduct and attitude was wrong. It was not the first time that the Campus Manager had requested the files for that term from the Applicant, and other colleagues had complied. Failure to submit the file for ICASS will lead to an internal audit query, and the results of the students would be withheld. The Applicant never submitted the requested files for that term.
16. Nearly every time the campus opened for a new term the Applicant would only report a week after re-opening. This was an ongoing problem with the Applicant. Prior to this incident the Applicant would sometimes submit the files, but it would be incomplete. He denied the version that the Applicant was never shown how to compile the files for ICASS and added that the Applicant was well acquainted with the requirements. The Applicant has further never reported that he did not know what was expected of him. The way he had addressed the Campus Manager was inappropriate. The Applicant was, generally, a difficult individual to engage with in order to correct behaviour.
17. The 3rd witness, Kgopitso Daniel Lehlakola (“Lehlakola”), Campus Manager from 1 November 2016, found the campus a hostile, problematic and dysfunctional institution when he took over. There was no discipline and no consideration from subordinates, who would arrive late for morning briefing sessions or not arrive at all. He had to push Lecturers to do their work, and assessment portfolios would either be submitted incomplete or not at all. Attendance of Lecturers were very poor, and late reporting and early knock-off was rife, and he could rarely locate a Lecturer on campus. He implemented measures to turn the campus into a more functional and disciplined institution by, amongst others, spending time with Lecturers to explain the importance of their duties to them. Only once disciplinary action was taken did improvement come about in small increments. Attendance and discussions on leave forms were done by him with Lecturers on an almost daily basis. There was big resistance to the changes he implemented. The Applicant himself had been problematic in that he disregarded policies in order to undermine management. The award that the campus won in 2013 was the result of the students’ hard work not that of the Lecturers, and it was irrelevant to his evidence about 2016 onwards when he joined the campus. The campus won another award in 2020 when he was still the Campus Manager, when his interventions had born fruit and had led to improved discipline and order on the campus.
18. In regards to the first charge, he was informed by Ramotsie that the Applicant had reported for work at 13h50 on 3 April 2018, whilst Mosala was present. Ramotsie explained that the Applicant had recorded his arrival time as 07h30 on the attendance register and that she had recorded the correct time on the attendance register. He confirmed that he did not personally see when the Applicant had arrived at the campus on that day. Mosala stated that the Applicant had called him earlier that morning at around 09h00 to inform him that he would be late for work, and the Applicant’s version that he had arrived between 09h30 and 10h00 was improbable. The workday for Lecturers end at 14h50 so the Applicant was effectively at work for one hour. The Applicant was supposed to complete a leave form (part B) for unpaid leave for the hours he was not at work, which he never did, and he was ultimately paid for 3 April 2018, as such the Applicant unduly benefitted financially. Lecturers did not have annual leave, as they were on holiday during school holidays. The Applicant never showed remorse or tried to remedy his actions on that day, but had conceded that he recorded his arrival time at 07h30, although he did not arrive at 07h30. The Applicant’s conduct did not warrant corrective discipline in this instance, as Ramotsie’s information to him was that it was the Applicant’s ongoing behaviour. He had no reason not to believe Ramotsie’s information. He denied the version that the Applicant did not know he had to record the actual arrival time on the attendance register, and added that he has had regular meetings with the Lecturers on this aspect, where the Applicant was part of the meetings. He added that, even if the Applicant had reported that he would arrive late, and that he had reported earlier than what he, Mosala and Ramotsie had testified to, he was still dishonest in recording his arrival time as 07h30, where it was clearly not his actual arrival time on 3 April 2018. The Applicant had the responsibility to report his arrival to his superior and complete a leave form.
19. On 15 March 2019 he had reminded the Lecturers about the ICASS audit and that their files (three files) had to be submitted, during a morning briefing session. As he had previously requested the files, some Lecturers had complied by that time, while others had not. The Applicant’s file was still outstanding. If the files were not submitted or were submitted incomplete it could result in a student not being resulted, which meant they could not progress or apply for work as there would be no evidence of their achievements. The practical implication was that students may then go on strike which would impede teaching and learning, and if such a strike was violent, it could lead to damage to the resources of the Respondent. Makgatho has been dismissed because she had failed or refused to compile her files as instructed, and when her files were submitted and scrutinized, discrepancies were found. Due to this, her students had to complete an additional three months of classes in order to be resulted. The Applicant knew he had to submit his files and he was well aware of Makgatho’s dismissal and the reasons therefor. The Applicant would be lying if his version was that he did not know how to compile the files as he had been trained on it multiple times.
20. Charge four was levelled against the Applicant for events on 15 March 2019. As he had reminded Lecturers of their outstanding files, the Applicant had stated that he (Lehlakola) would not get his files, which utterances he made in front of other employees. He called the Applicant to the boardroom, where Mosala and Ramotsie joined the conversation. He told the Applicant that he was not happy with his conduct and that he would not tolerate being addressed in such a manner, and that he wanted the Applicant’s files. The Applicant proceeded to say “I am not afraid of you, you are not going to intimidate me, I am a man”. He denied the Applicant’s version that he used the words “respect” or “respectfully” in his utterances, or that he said “I respect you” to him. He told the Applicant that he was not fighting with him, but that the Applicant must submit the files. He did feel aggrieved with the Applicants display of disrespect. The Applicant has never apologized to him for his behaviour, and his disrespectful, insolent and undermining behaviour did not improve. The Applicant never complied, and the files in question had never been submitted. The Applicant’s defence that he could not submit the files as he was busy marking was unreasonable, as both aspects were part of the duties of a Lecturer, and it required planning and time management. He added that the Applicant never sought clarity, as alleged, as to whether marking or the files had to be prioritized, during that conversation. The file ought to have been ready by the time he had requested it.
21. The 4th witness, Mosiuoa David Mokhoba (“Mokhoba”) testified that he was the Human Resources Manager at the Maluti TVET College between August 2015 and July 2018 and currently held the position of Deputy Principle Corporate but was still responsible for the human resources function of the greater Motheo district. He had thirty-four years’ service in the public service. Lecturers are basically Educators, and both Lecturers and Educators do not qualify for annual leave. Lecturers are regulated by PAM (Personnel Administrative Measures), which is a product of relevant regulations. When schools (and colleges) are closed, Lecturers and Educators are on vacation the same time as the learners and students. Lecturers cannot apply for or elect when they want to be on leave. On 3 April 2018 he was still at Maluti TVEET College and pertaining to the Applicant’s case, he had to complete a leave form (part B) for the hours he was not at work, which hours would have been processed as unpaid leave. He had personally conducted training sessions on this aspect, and the Applicant was well aware of the rule. He referred to the case of Madonzela, where Madonzela had also falsified such records, and he was dismissed, hence the Applicant knew the rule and consequences. The attendance register also had to be completed to correspond with the leave form details. Attendance registers are like clocking cards, and the exact arrival and departure time of employees must be recorded on it. If a time, other that the correct and exact arrival time is recorded, such action is considered fraud, as you would then be paid for hours not worked. If a Lecturer arrives at work at 13h50 he/she would be considered to not have been on duty at all that day, and had to complete a leave form (part B) for unpaid leave, regardless of whether such a Lecturer had reported that he/she would be late for work. When he had learned of the Applicant’s conduct on 3 April 2018, he started to take disciplinary action against those Lecturers who did the same, including the Applicant, and a lot of employees had since been dismissed (Mafereka, Leputin, Mzolo, Madonzela, Nohlohonolo). The most cases of this nature originated from Itemoloheng campus, where it was a very ill-disciplined environment.
22. He confirmed the evidence of Lehlakola that he (Lehlakola) had inherited a problematic campus from his predecessor. Malakwane, the previous Campus Manager and Lehlakola’s predecessor, also had problems with the Applicant’s disruptive and disrespectful behaviour. The Applicant went as far as to refuse to invigilate examination of students. He had been involved in many disciplinary actions taken against the Applicant prior to his dismissal, including the Applicant’s participation in an unprotected strike. The Applicant habitually reported for work long after classes had started after a break. A circular, such as contained in bundle “A1” could never supersede a collective agreement, with specific reference to ELRC Resolution 1 of 2013. He had personally met with the Deputy Director General to seek clarity on the ambiguity in the aforementioned circular (cause 5) which was contradictory, and it was clarified that Lecturers are governed by the ELRC, including its Collective Agreements and Resolutions, and that ELRC Resolution 1 of 2013 is more appropriate and specifically prescribed the disciplinary code and procedures for Lecturers, but that PSCBC Resolution 1 of 2003 may still find application to Lecturers.
Evidence of the Applicant:
23. The Applicant, Siyabonga Mzolo (“the Applicant”), testified that he only learned about ELRC Resolution 1 of 2013 when he was charged with misconduct. It was his opinion that he should have been charged in terms of PSCBC Resolution 1 of 2003. He was initially appointed by Maluti TVET College and was absorbed by the Respondent on 1 April 2015. As such, he was deemed an employee of the Respondent from April 2015, and ELRC Resolution 1 of 2013 was not applicable to him as a Lecturer. He was prejudiced by the Respondent having charged him in terms of the incorrect Resolution as it has led to his unemployment. Under cross-examination on this aspect, the Applicant’s responses were mainly that he could neither agree nor disagree to the statements put to him. He conceded that PSA, his representative union, was part of the working together agreement that formed CTU-ATU, and that PSA was, accordingly as party to ELRC Resolution 1 of 2013. He conceded that ELRC Resolution 1 of 2013 was binding on him as a Lecturer, but later disputed that it was binding on him.
24. The Chairperson of his disciplinary hearing was appointed by the Respondent, who was Daniel Matlho. He believed the Principal was the wrong person to have signed the appointment letter, but he could not state who had the necessary authority, according to him, to sign such an appointment letter. The person who ultimately chaired his disciplinary hearing was Nigel Masalla, and he was not duly appointed as the Chairperson. He conceded that both Matlho and Masalla was from the same law firm. This irregularity had prejudiced him, as he believed that Daniel Matlho, the only duly appointed Chairperson, may have reached a different finding in his disciplinary hearing than Nigel Masalla. He further considered the finding and sanction to have been void, because Masalla did not have the authority to issue a finding and impose a sanction, because he was not appointed as the Chairperson.
25. On 3 April 2018 he was at his home in KwaZulu-Natal. He left early that morning and when he arrived at Ladysmith he found people on a strike. He called Mosala and explained that he would be late for work, and the reason. Mosala said that it was fine and that he would inform management. He took an alternative route and arrived in Qwa Qwa and at the campus between 09h30 and 10h00. He immediately proceeded to invigilate the students’ examinations. He had completed the attendance register and had recorded his arrival time as 07h30 which was the practice at the campus. It was common practice that, if you have informed your superior that you would be late, that you would record your arrival time as 07h30, regardless of your actual arrival time. He could not provide names of persons who had made him aware of the practice, neither could he give names of other Lecturers who joined the practice with him. Neither Lehlakola nor Mokhoba ever trained him on a method other than the practice he was used to. He did not amend the attendance register to show his arrival time as 13h50. He did not respond when it was asked why he should be paid for a seven-hour workday, as he was appointed, if he had only worked for three hours a day. He did not respond when it was put to him that he had gained financially from his dishonest entry on the attendance register.
26. On 15 March 2019 he was part of the morning briefing session when Lehlakola addressed the Lecturers and requested their files. He sought clarity about which should be prioritized – the files or the marking of test two. Lehlakola responded aggressively by saying that it was the reason why students were failing, and that he would make appointments the next terms based on pass rates achieved by Lecturers. He said to Lehlakola that he should not threaten him (Applicant) with appointments, because it did not scare him, but that he, nonetheless, respected Lehlakola. His exact words were “I’m not intimidated by you, you don’t scare me, however I respect you”. He felt that his job was being threatened, but he conceded that Lehlakola did not have the authority to dismiss him. He did not recall whether Lehlakola called him to the boardroom after the interaction, along with Mosala. He had eventually submitted his files to his line manager, Mofokeng, and added that, if he had not submitted the files, his students would not have received their results. He stated that it did not occur to him to call Mofokeng as a witness in his disciplinary hearing. He was not angry when he had responded to Lehlakola but his voice was firm. He was not insolent and rude towards Lehlakola. He conceded that, when the files were requested by Lehlakola, the files were already in place, and just had to be updated, completed and finalized. He was charged with insolence, and not for a failure and/or refusal to submit the files.
27. He denied the Respondent’s version that he had belonged to a clique on campus that had made the campus dysfunctional and unruly. He denied the version that the misconduct he was charged with, was of a serious nature. It was put to him that, after his dismissal, Khoanae Lephuthing, Makgatho, Sethua and three others were also dismissed for the same misconduct, and that they were part of his clique. He testified that he always obeyed instructions, he did his work, and he went the extra mile. He did not experience the campus as dysfunctional and unruly, and he did not see a change since Lehlakola’s arrival. It was put to him that his tone in the WhatsApp proved that it was his normal attitude towards superiors to be disrespectful, to which he stated that Sesotho was not his first language. He still sought to be retrospectively reinstated.
28. The 2nd witness, Abinar Mogkhejene Nthoba (“Nthoba”), testified that he used to be a colleague of the Applicant and that he testified in the disciplinary hearing of the Applicant. He testified that one had to record the exact time of arrival at work on the attendance register, but that there used to be a practice that one would record the arrival time of 07h30 and departure time of 14h50, regardless of the actual arrival and departure time. He conceded that the rule was known that that leave forms had to be completed for periods of absence, and that same was also contained in their employment contracts, but reiterated that the practice was different. He conceded that, had the Principal knows about this practice, he would have put a stop to it immediately. He conceded that this issue was now taken very seriously by the Respondent.
29. He was present during the morning briefing session on 15 March 2019. Lehlakola requested outstanding files of Lecturers to which the Applicant had raised his hand and asked what should take priority – the files of the marking of the tests. He did not know that it was not the first time that Lehlakola had requested the files from the Applicant. The Applicant did not refuse to submit the files during the morning briefing specifically. Lehlakola said to the Applicant that the reason why his students were failing was because of his (Applicant’s) bad attitude and that their performance would improve if he was moved to another subject. Lehlakola further insinuated that Lecturers would find themselves jobless if the performance did not improve. The Applicant respondent by saying: “you do not intimidate me, nor do you scare me, but I respect you”. He conceded that it was not unusual for Lecturers to be moved from one subject to another. He did not recall a meeting in the boardroom, after the morning briefing, between the Applicant, Mosala and Lehlakola. The Applicant had ultimately submitted his files to Mr Mofokeng. He conceded that, if the Applicant had submitted his files to Mofokeng, then Mosala and Lehlakola would have been aware thereof. He conceded that Lecturers had sufficient time to prepare the files throughout the term and attend to marking of the tests.
30. He confirmed that Lehlakola, since his arrival as Campus Manager, had imposed strict discipline whereas the previous Campus Manager did not. No disciplinary action or disciplinary hearings were implemented under the previous Campus Manager’s tenure. He further stated that Lehlakola had improved the availability of resources for Lecturers overall. The previous Campus Manager allowed the Lecturers to complete attendance registers as they please, whether inaccurate or accurate, whereas Lehlakola was very strict on record time accurately. He did not respond when it was put to him that the good working relationship some Lecturers had with the previous Campus Manager was because he allowed the Respondent to be defrauded.
31. A third witness, Ms Lulama Mbobo, was properly subpoenaed by the Applicant in terms of the ELRC Rules, but the subpoena was denied by the ELRC General Secretary. It was Mr Cloete’s submission that Ms Mbobo would have testified on the circular , as she was the author thereof.
ANALYSIS OF EVIDENCE AND ARGUMENT
32. Parties had submitted their respective closing arguments in writing on 21 November 2023. The closing arguments were considered but will not be repeated herein.
33. 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)).
34. In Stellenbosch Farmers’ Winery Group Ltd & another v Martell et Cie & others [2003] (1) SA 11 (SCA) the Court held that where a Commissioner is faced with two conflicting versions before him/her the Commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The important point emphasized in this case is that the credibility of a witness cannot be considered in isolation; it is inextricably bound to the probabilities of the conflicting versions.
35. Mabena was found to be a credible and reliable witness, with no contradictions found in his evidence. He was concise, factual and unwavering under cross-examination. Mosala was found to be a credible and reliable witness, with no material contradictions found in his evidence. He did appear confused about some of the questions asked to him, but this did not affect his credibility. Lehlakola was found to be a credible and reliable witness, with no contradiction found in his evidence. He was factual, remained calm and showed compassion throughout, and remained unwavering under cross-examination. Mokhoba was found to be a credible and reliable witness, with no contradictions found in his evidence. He gave factual and concise evidence in a calm and unwavering manner. Mzolo’s (the Applicant) reliability and credibility as a witness was diminished by his evasiveness under cross – examination, and his failure to make concessions on basic aspects which he was reasonably expected to make. Ntoba was found to be a credible and reliable witness. He remained calm and unwavering under cross – examination, he did not contradict himself and he made concessions on basic aspects that he was reasonably expected to make
Procedural fairness:
36. 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.”
37. 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.
38. 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.”
39. “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”
40. 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.”
41. 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.
42. Collective Agreement 5 of 2007 dealt with the transfer of employees from the Department of Education to Individual FET Colleges, an in terms thereof, the Collective Agreement binds the old and new Employer, all Employees of the old and new Employer, whether members of a registered trade union or not, and the registered trade unions who fall within the registered scope of the ELRC.
43. 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.
44. It was common cause that the Applicant was initially appointed by Maluti TVET College and was absorbed by the Respondent on 1 April 2015. At the time of the Applicant’s dismissal, he was an Employee of the Department of Higher Education and Training.
45. ELRC Collective Agreement 5 of 2013 dealt with the agreement on the transfer of the Public Further Education and Training Colleges Lecturers from Colleges to the Department of Higher Education and Training in terms of the FETC Amendment Act, 3 of 2012, and it was done in terms of section 197 of the LRA. As a signatory to this agreement was the Respondent, as well as registered trade unions, including PSA as part of CTU-ATU (established during august 2011).
46. The circular on which the Applicant placed much reliance had contained a contradiction to all the other documentary evidence insofar as whether PSCBC Resolution 1 of 2003 or ELRC Resolution 1 of 2013 was applicable, and this discrepancy ought to have been clarified. The author of this document was subpoenaed by the Applicant, which application for subpoena was denied by the ELRC. It must further be added that this circular, issued by Ms LC Mbobo, Deputy Director-General: Corporate Services, can only be considered in conjunction with PSCBC and ELRC Resolutions and Collective Agreements, and it cannot supersede any of those. Where there is a discrepancy and/or contradiction on such a circular, the relevant PSCBC or ELRC Resolution or Collective Agreement will apply. In addition, the correspondence by the General Secretary of the ELRC superseded the circular, as the ELRC is the custodian of the disciplinary code and procedure in the specific sector.
47. 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.
48. The aforementioned has been the unchanged position since 2016 and is still followed.
49. Either PSCBC Resolution 1 of 2003 or ELRC Resolution 1 of 2013 could have been used to charge the Applicant with misconduct, and neither would have been incorrect. However, the more appropriate is ELRC Resolution 1 of 2013, as was demonstrated in the analysis above, to be the sectoral council with the necessary jurisdiction over Lecturers in TVET Colleges.
50. It then follows that the Respondent had correctly charged the Applicant in terms of ELRC Resolution 1 of 2013.
51. The Applicant further challenged the appointment of the Chairperson in his disciplinary hearing, and the validity of the outcome of his disciplinary hearing and the sanction imposed.
52. It was common cause that the Principal, Mr Mabena, had appointed the Chairperson for the disciplinary hearing of the Applicant . The appointment letter has specifically appointed Mr Daniel Matlho. The appointment of a chairperson is a specific appointment of an individual, not a law firm. It is thus clear that Mr Daniel Matlho was appointed as the Chairperson, not his law firm. The Applicant challenged the authority of the Principal to have appointed the chairperson. Clause 16B of Chapter V of the Delegations in Terms of the Public Service Act, 1994, as amended, the Principal has the delegated authority to give effect to the sanction as a result of a disciplinary hearing for Lectures at Colleges on post levels 1, 2 and 3. It further states that the delegated authority vests in the Principal to take disciplinary steps against Lecturers on post levels 1,2 and 3. This would include the appointment of a chairperson. It was common cause that the Applicant was on post level 1. The DHET Circular on which the Applicant placed much reliance confirmed that it was the delegated authority of the Principal of the College to take disciplinary action against Lecturers on post level 1, 2 and 3 in instances of serious misconduct.
53. It then follows that the Principal had the delegated authority to appoint the chairperson for the disciplinary hearing of the Applicant.
54. It was common cause that Mr Nigel Masalla ultimately chaired the disciplinary hearing, issued an outcome and a sanction, which sanction was implemented by the Principal. It was further common cause that an appointment letter was not issued for Mr Masalla to be the chairperson of the disciplinary hearing of the Applicant. The Applicant seeks a finding that Mr Masalla acted unauthorized and that the disciplinary hearing was invalid, of no force and effect. The judgement cited by the Applicant in support of the relief sought differs from the case before me in that case the Respondent was alleged to have not adhered to the timeframes in the specific Collective Agreement when disciplinary action was taken.
55. The Respondent did not comply with clause 7.2 of ELRC Resolution 1 of 2013 in that Mr Masalla was not duly appointed as the chairperson of the Applicant’s disciplinary hearing. It then follows that he did not have the authority to proceed with the disciplinary hearing and issue a finding and sanction. The Respondent’s argument that Mr Masalla was from the same law firm as Mr Matlho rejected as irrelevant, as only an individual can be appointed as a chairperson, not a firm.
56. The Respondent’s contravention of clause 7.2 of ELRC Resolution 1 of 2013 is, in my view, not sufficient to nullify the disciplinary hearing, the finding and sanction imposed. The Applicant could not demonstrate how he had suffered prejudice to the degree that a finding to declare the disciplinary hearing, the finding and the sanction imposed nullified, would be appropriate. It must further be borne in mind that an arbitration is a hearing de novo.
57. In SAMWU and Others v eThekwini Municipality and others case no: DA5/13 delivered on 02 September 2016, the LAC upheld the Commissioner’s finding on the procedural fairness aspect, where the Commissioner found that the Municipality had appointed a presiding officer who was not properly qualified, in terms of the disciplinary procedure, to preside over a disciplinary enquiry. The dismissal was therefore in this matter regarded as procedurally unfair. Consequently, the Municipality was ordered to pay compensation to the Employees.
58. The Respondent’s contravention of clause 7.2 of ELRC Resolution 1 of 2013 had rendered the dismissal procedurally unfair.
Substantive fairness:
Charge 1:
59. The only documentary evidence submitted on this charge was an attendance register for 3 April 2018 in which the time of 07h30 was recorded by the Applicant, which was scratched out, and a time of 13h50 was recorded. It was the evidence of the Respondent that Ramotsie had recorded the latter time as the time she had seen the Applicant first report for duty on that day. Ramotsie was not called to testify. Lehlakola testified that Ramotsie had personally informed him of the actual arrival time of the Applicant, having been 13h50. Mosala testified that the Applicant had called him around 09h00 to report he was still at home, and would be late, and he denied the version of the Applicant that he had called Mosala at 07h30 and said that he was at Ladysmith.
60. The direct evidence led by the Respondent that the Applicant had arrived for work on 13h50 was by Lehlakola when he testified that Ramotsie had reported the Applicant’s actual arrival time to him, and Mosala was present during that conversation. Ramotsie was not called to testify on when she saw the Applicant arrive. On the Applicant’s own version, he had arrived at work between 09h30 and 10h00, but had recorded his arrival time as 07h30. On the Applicant’s own version, he was dishonest in the completion of the attendance register.
61. It was the Respondent’s undisputed evidence that the Applicant was a Lecturer appointed to work a specific number of hours per week. The Applicant’s evidence that it was a practice at the campus to complete the attendance register with the contractual hours, regardless of arrival time and departure time, was confirmed by Nthoba. It is evident that such a practice was taking place amongst some Lecturers during the tenure of the previous Campus Manager. Nthoba further confirmed the evidence of the Respondent’s witnesses that Lehlakola inherited a dysfunctional and ill-disciplined campus when he took over. It is further clear from Lehlakola and Mosala’s evidence that, as soon as this practice was discovered, disciplinary action was taken, which evidence was confirmed by Nthoba, and that multiple Lecturers had since been dismissed for the same offence.
62. Although this may have been a practice, the practice still amounts to fraud. Lecturers are paid for hours at work, and to record hours worked when not actually having been at work, is fraud, and it was the uncontested evidence of the Respondent that the Applicant was paid for a full day of work on 3 April 2018, when he did not work a full day. The fact that this practice continued under the management of the previous Campus Manager did not make it an acceptable practice – many wrongs don’t make a right. Nthoba confirmed that, had the Principal known of this practice, he would have stopped it immediately. It is thus clear that the Lecturers who participated in this practice knew that it was incorrect behaviour, including and specifically the Applicant.
63. The Respondent was able to prove, through documentary evidence and the evidence of two reliable witnesses, that it was more probable that the Applicant had arrived for work at 13h50 than between 09h30 and 10h00, which was the version of the Applicant.
64. In NEHAWU obo Buqa v Department of Health (Western Cape) and others (C335/2020) [2022] ZALCCT 42 handed down on 27 July 2022 the LC held that “it cannot be that Employees can engage in blatant criminal conduct and then argue that they should not be dismissed because others who have committed similar crimes in the workplace were not dismissed”. It was also reiterated that “historical inconsistency cannot be invoked by an Employee when the underlying misconduct involves serious criminal conduct. On this approach it does not matter whether or not the Employer informed its Employees that the conduct will no longer be tolerated and may lead to dismissal”.
65. The Respondent was able to prove, on a balance of probabilities, that the Applicant was guilty of gross dishonesty in that the Applicant had committed an act of fraud on 3 April 2018 by completing the attendance register to show that he had reported for work at 07h30 where he had not reported for work until much later that day. The Respondent further led uncontested evidence that the Applicant had benefitted financially from this dishonesty.
66. The evidence on the requirement to complete a leave form in addition to any periods of absence by a Lecturer led by the Respondent was challenged by the Applicant, but the Respondent was able to prove, on a balance of probabilities, that the completion of a leave form for any period of absence is a requirement for any time of absence by a Lecturer, so that the specific employee could not be paid for hours not worked. It is common law that Lecturers, just like Educators, are not entitled to annual leave. Mokhoba further led largely undisputed evidence that the Lecturers were trained on this aspect multiple times by himself, and that he had trained the Applicant’s representative on this aspect as well.
Charge 4:
67. The Applicant was charged with gross insolence for an incident on 15 March 2019, involving the Campus Manager, Lehlakola. The Respondent’s evidence, from Mosala and Lehlakola, was that the Applicant had refused, in front of other staff members, to submit his files, and had challenged the authority of Lehlakola in front of other staff members. It was further the evidence of Mosala and Lehlakola that the insolent behaviour of the Applicant continued in a separate discussion in the boardroom where Mosala, Lehlakola and the Applicant was present. The Applicant denied the Respondent’s version, and Nthoba testified in corroboration of the Applicant’s case that he did not refuse to submit the files in the morning meeting in front of other staff members, and had not uttered the insolent words as testified to by the Respondent. Nthoba was not present during the second incident (the boardroom) and could not attest to events during that engagement.
68. The version of Lehlakola and Mosala was found to be more probable that the version of the Applicant. This finding is informed by the finding made on the credibility of the respective witnesses, as well as the testimony of the witnesses under oath of the actual words uttered. The Applicant and Nthoba’s recollection of the words used “you do not intimidate me, nor do you scare me, but I respect you” were just too well rehearsed, and testified to verbatim, to be probable, considering the incident took place more than four years ago. Lehlakola and Mosala’s recollection was not verbatim, but the message thereof was the same. On the Applicant’s own version, he did utter the words “you do not scare me” to Lehlakola, which are the phrase quoted in the charge of insolence.
69. The Respondent was able to prove, on a balance of probabilities, that the Applicant was guilty of gross insolence on 15 March 2019 in that he had challenged the authority of the Campus Manager and acted disrespectfully towards the Campus Manager in the morning meeting in front of other staff members.
70. The breakdown in the employment relationship can be inferred from the seriousness of the misconducts that the Applicant has committed. It then follows that dismissal was an appropriate sanction in these circumstances.
71. The Respondent was able to prove, on a balance of probabilities, that the dismissal of the Applicant was substantively fair.
72. For the procedural unfairness of the dismissal, I make an order of compensation of one month’s salary to the Applicant. It was held in McGregor v Public Health and Social Development Bargaining Council and Others [2021] ZACC 14 (17 June 2021) that “the procedural irregularities in that case were of no major consequence and that the nature and gravity of the misconduct and the attitude of the perpetrator weighed heavily on the determination of compensation. Although compensation for unfair dismissal serves an important purpose, the appropriateness of compensation must be understood within the context of the dismissal”.
AWARD
73. The dismissal of the Applicant, Siyabonga Mzolo, by the Respondent, the Department of Higher Education and Training, was procedurally unfair but substantively fair.
74. The Respondent is ordered to pay the Applicant an amount of R 24 404.50 (twenty-four thousand four hundred and four rand, fifty cents), equal to one month’s salary for the procedural unfairness of the dismissal.
75. The amount in paragraph 75 must be paid into the bank account of the Applicant by no later than 31 December 2023.
Minette van der Merwe
ELRC Panelist