Case Number: ELRC147-21/22EC
Commissioner: Henk Jacobs
Date of Ruling: 12 January 2022
In the matter between
Mpofu, Prosper Morgan Mehluli
(Applicant)
And
Ingwe TVET College
(Respondent)
Union/Applicant’s representative:
Mr Mvelasi, an attorney from Mlungisi Mvelase Attorneys
Telephone: 0739143282
Telefax:
E-mail:
Respondent’s representative: Mr T Mabovula
Respondent’s address:
Telephone: 0627583273
Telefax:
E-mail:
Details of hearing and representation
1. The arbitration hearing into an alleged unfair dismissal dispute, referred in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 (the LRA), was held at a virtual platform via “Zoom”, on 13 July 2021, 27 September 2021, 18 October 2021, 22 and 24 November 2021.
2. The applicant, Mr P. M. M. Mpofu, was represented by Mr Mvelasi, an attorney from Mlungisi Mvelasi Attorneys, the respondent, Ingwe TVET College, was represented by Mr T. Mabovula, a Labour Relations Officer employed by the Respondent.
3. The hearing was held in English and was digitally recorded.
4. Parties agreed to file arguments by no later than 06 December 2021, both parties did so.
Issues to be decided
5. The issue to be decided is whether the dismissal of the Applicant was procedurally and substantively fair, and if not, to determine the appropriate remedy in terms of sections 193 and 194 of the Labour Relations Act 66 of 1995.
Background to the matter
6. The Applicant was employed by the Respondent during February 2013 as a Post Level 1 Lecturer, on the date of his dismissal on 30 April 2021, the Applicant earned a gross salary of R21 177.12 per month.
7. The Applicant referred a dispute to the ELRC, the dispute was conciliated, conciliation was unsuccessful, and a certificate of non-resolution was issued whereafter the Applicant filed a request to have the matter arbitrated.
8. The Applicant sought retrospective reinstatement.
9. The Parties submitted into record bundles of documents on which they would rely during the proceedings. The documents were accepted into record to the extent that they are what they purport to be.
10. The following issues were placed in dispute: As far as the procedural fairness of the Applicants dismissal, the Applicant states that his dismissal was procedurally unfair due to the bias of the chairperson when he sent the Applicant out and a new charge was formulated, the proceedings were done without a charge sheet, proceedings were held in IsiXhosa, and the Respondent never stated the reason for his dismissal.
11. As far as substantive fairness is concerned, the Applicant contested that he was guilty to the allegation, but that the Campus Manager victimised him, due to a settlement agreement that confirm his employment by the Department of Education on an indefinite basis. The Applicant also denied that he is the author of an acknowledgement letter as per page 2.
Survey of evidence
12. Ms B Manyala and Ms Damoyi testified under oath for the Respondent, Mr Njiva and the Applicant testified on the Applicants behalf.
13. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.
Respondent’s evidence
14. Ms Manyala testified that she is employed by the Respondent as the Campus Manager. During 2017 and 2018, the examination office notified her that there were two applications with different stamps than what is usually used, and the applications has her name on, but a different signature.
15. She noticed that the handwriting looks like that of the Applicant, she called the Applicant who confessed that he used her signature fraudulently and applied for qualifications on behalf of the two students. Ms Manyala further testified that she requested the Applicant to reduce his confession to writing, which he did, and constitutes page 2 of the Respondents bundle.
16. Ms Manyala also testified that the signature on page 2 is that of the Applicant. In the applications, it was mentioned that one of the students was appointed as a bursary clerk and the other a personal assistant for Ms Manyala, yet their duties as per the applications were the same. Ms Manyala also stated that she never had a personal assistant and that she never signed those applications.
17. Lastly, Ms Manyana testified that she will not be able to work with the Applicant and will not be able to trust the Applicant again.
18. Under cross-examination, Ms Manyala stated that the Applicant pleaded guilty to the charges and that the allegation that she wanted to get rid of the Applicant based on the settlement agreement which makes him a permanent employee is false and she never said that.
19. In terms of paragraph 3 of the letter on page 1, Ms Manyala confirmed that she has never signed any documents for the Applicant who is a foreigner and that on all probabilities, did so on his own behalf.
20. Ms Manyala could not answer why she took three months to report the matter to the relevant departments for investigation after the Applicant submitted his confession.
21. Ms Damoyi testified that she is employed as the Chief Personnel Officer by the Respondent. Pay day for employees is on the 15th and the 25th of each month and they are being paid until the end of the month in advance.
22. Ms Damoyi further testified that the Applicant was paid for the full month of April as per his payslip on page 24 of the Respondent’s bundle.
23. Under cross-examination, Ms Damoyi confirmed that she was at the Campus for a PPN meeting, the Applicant was not supposed to be there, hence she was present when the Applicant was issued with a dismissal notice with his last day of work being 30 April 2021.
24. The Applicant further failed to provide documents to the Education Department regarding his permanent residence, hence he was placed on a fixed term contract and received benefits to the extent of 37% in lieu of benefits.
Applicant’s evidence
25. The Applicant testified that he was employed since 2013. In 2016, he and three other employees were made employees of the Education Department through a settlement agreement and subsequently, he was again made an employee of the College.
26. Ms Manyala approached them after the settlement agreement and told them that they are award employees and that she will get rid of them by starting with the foreigner. He had a good working relationship with Ms Manyala until the time of the settlement agreement when she started to exploit him and abuse his computer skill by conducting managerial tasks till late at night.
27. The Applicant further testified that he never made an application on behalf of any student for a qualification. During 2017, he was working at a satellite campus and could not have made such an application. He never confessed to any wrongdoing and never wrote and signed the letter of acknowledgement.
28. An application for a diploma is a formal process where students sign an application and have it confirmed through a commissioner of oath. The firth person who would see the application is the Head of the Department, who will then give direction to the exams department.
29. The Applicant also testified that he cannot call the meeting they had, a formal disciplinary hearing. During the meeting he was excused and Mr Mabovula, his NEHAWU representative, and the chairperson had a meeting, when he returned, he was never given an opportunity to state his case, and there were no further discussions.
30. All that he was told, was that the three charges was combined to one charge, which was given to him two weeks after the meeting.
31. Under cross-examination, the Applicant stated that he was never called about the incidents by Ms Manyala and that he never signed the document on page 2 of the bundle.
32. The date on both applications reflects 30 November and that he knows the two students, he was their lecturer. The Applicant confirmed that he received the notice of the disciplinary hearing which he sent to NEHAWU who appointed a representative.
33. The Applicant denied that he pleaded guilty to the charges and said that he never spoke to the NEHAWU representative after the hearing. After he received the notice of dismissal, he sent it to NEHAWU who said they can appeal, NEHAWU drafter the appeal application which he read before he signed it.
The appeal document on pages 6 and 7 of the Respondents bundles reads as follows:
“I, P. Mpofu am hereby appealing against a disciplinary action imposed on the 28 February 2020 at Department of Higher Education & Training Ingwe TVET Siteto Campus.
I attached a copy of the notice of the disciplinary enquiry and a sanction of dismissal.
My reasons for appeal are:
1. The presiding officer did not consider the resolution 1 of 2003 is a corrective measure not punitive therefore the sanction is too harsh.
2. The presiding officer did not consider that there was no warning of any kind before the department institute the formal disciplinary process.
3. The presiding officer did not consider that this was my first offence of this nature there are no previous allegations.
4. The presiding officer did not consider the financial obligation of the employee that a month without salary to me will haunt many people in the family who did not have anything to do with this.
5. The presiding officer did not consider whether the employee knew or ought to have known or not about the procedures and policies on issuing of the college certificate to students. I was never been trained or inducted in this regard.
6. The presiding officer did not consider that I have been awarded the best college lecturer for the College and O obtained a certificate on this regard.
7. The presiding officer did not consider that it is the priority of government to create jobs not to suspend government employees: therefore this sanction will hamper the service delivery since there is a drastic shortage of staff in the department.
8. The presiding officer did not consider the good deeds I have done for the College, for example I have been representing the college at different levels as an academic board member.
9. I am also assisting in preparing Campus documents. I work tirelessly and sacrifice my time skills and knowledge to improve the standards of the Campus, I.E. College.
10. The presiding officer did not consider the fact that I was once chosen to lead the satellite campus and I was leading satisfactory, producing good College results.
11. The outcome of dismissal is too harsh as it comes as a second punishment because the matter was discussed at campus level and I was cautioned on this charge.
12. The presiding officer didn’t consider that, after being cautioned by the Campus Manager, we manage to fix our employee relations and she is assigning me to conduct significant duties at the Campus.
13. The employer didn’t consider reason that resulted me in this misconduct, I was trying to help hance there were no personal gain I received on this regard.
14. The employer didn’t consider the quality of students that I have produced as a lecturer and the fact that I’m still conducting my duties successfully even to present day.”
34. Under cross-examination, the Applicant confirmed that he did not take any steps against Ms Manyala and that his NEHAWU representative, Mr Kortjabs, was misrepresenting things, hence he did not call him to the arbitration.
35. Mr Njiva testified that he was a former student of the College and that the Applicant lectured him. He received his qualification during 2019 for which he applied himself.
Analysis
36. In accordance with section 192 (2) of the LRA, the employee bore the onus of proving that he had been dismissed. The onus then shifted to the employer to prove that such dismissal was nevertheless fair. It is not disputed that the Applicant was dismissed. The facts surrounding this dispute are largely common cause, save where it is disputed, I shall make reference to it.
37. Section 188(1)(a) and (b) of the Labour Relations Act 66 of 1995 states that a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason or that the dismissal was effected in accordance with a fair procedure.
38. The Applicant contested the procedural fairness of his dismissal to the extent that the chairperson was biased when she sent the Applicant out and a new charge was formulated, the proceedings were done without a charge sheet, proceedings were held in IsiXhosa, and the Respondent never stated the reason for dismissal.
39. Turning to procedure, Item 4 of Schedule 8 states that normally the employer should conduct an investigation to determine whether there are grounds for dismissal, then the employer should notify the employee of the allegations. The employee should be allowed an opportunity to state a case in response to the allegations and should be allowed a reasonable time to prepare a response with the assistance of a shop steward or fellow employee. After the hearing, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
40. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 27 ILJ 1644 (LC) it was held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period, and thereafter, to take a decision and give the employee notice thereof.
41. It would be important in this instance to first deal with the reliability and credibility of the evidence presented as well as the probabilities for the very reason that we have two destructive versions with very little to substantiate either version.
42. The Court in Combined Transport Services (Pty) Ltd v Buhle Zamokwakhe Miya and others (DA 15/2014) [2016] ZALAC 57 (handed down on 25 November 2016) reaffirmed the applicability of the “balance of probabilities” test in employment law disputes, when it held that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and/or more credible. Further that the test herein is “balance of probability”, dictating that a more probable version should be accepted, as opposed to a “beyond reasonable doubt” test, which is the test applicable to criminal cases.
43. In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others [2003] (1) SA 11 (SCA) (handed down on 6 September 2002) the Supreme Court of Appeal held that where a Commissioner is faced with two conflicting versions before him 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.
44. The question that should be answered is whether the probabilities favour the party that bears the onus of proof. The Court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case, the Commissioner should therefore resort to credibility where the probabilities fail to point which version embraces the truth more. The Supreme Court of Appeal explained the technique generally used by Courts in resolving factual disputes as one involving the making of findings on:-
(a) The credibility of the various factual witnesses. This will depend on the Court’s impression about the veracity of the witness, which in turn will depend on a variety of subsidiary factors, such as:-
(i) the witness’ candour and demeanour in the witness-box;
(ii) his bias, latent and blatant;
(iii) internal contradiction in his evidence;
(iv) external contradictions with what was pleaded or put on his behalf;
(v) the probability or improbability of particular aspects of his version;
(vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.
(b) the reliability of the witness, which turns on the factors listed in (a)(ii), (iv) and (v) above, as well as the following:-
(i) the opportunities he had to experience or observe the event in question;
(ii) the quality, integrity and independence of his recollection of the event in question.
(c) the probabilities of each conflicting version. This requires an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In a final step, the Court/Commissioner will then determine whether the party burdened with the onus of proof has succeeded in discharging it.
45. In this instance we have two conflicting versions. Ms Manyala who testified that the Applicant confessed his wrongdoing of fraud when he applied for qualifications using her signature. The Applicant denied all and everything, he never applied for qualifications, he never used Ms Manyala’s signature and name, and he never confessed to his wrongdoing.
46. It is so that an arbitration is a hearing de novo process, it is also trite that an arbitrator may not ignore what transpired during the disciplinary enquiry prior the employee’s dismissal if such evidence was placed before him or her during the arbitration. The Courts confirmed that a party may rely on evidence presented at the hearing in so far as to determine any contradictions and the credibility of such evidence. Same goes for a plea, if a party pleaded guilty in an internal proceeding, there must be a substantive reason why such a plea should be ignored at arbitration stage.
47. In this instance, the Applicant is faced with two issues, firstly, he was well represented during the internal hearing through a NEHAWU representative. It is highly improbable that the Applicants representative would allow a bogus process to unfold and not deal with it in appeal.
48. Secondly, the Applicant applied to appeal his sanction of dismissal by making use of NEHAWU. The appeal application as submitted into record was not disputed and the Applicant confirmed that he read it and signed it. The appeal application does in no way allude to the fact that the Applicant was not guilty to the charge of fraud, but that the sanction was too harsh.
49. On that basis, and on a balance of probabilities, the Respondent’s version is a more probable version and the Applicant’s defence, during arbitration, of denial must be dismissed with the contempt it deserves.
50. The Applicant’s evidence lacks credibility as his denial of what transpired is a 360-degree turn around from a plea of guilty, an acknowledgment of wrongdoing, and a confirmation in terms of the appeal application to cap it all. This amounts to external contradictions and an indication of his own bias.
51. The Respondent failed to call witnesses in so far as the procedural challenges. What is important is that the documents were submitted and accepted into record and are thus before me, save for the Applicant’s denial that he wrote the acknowledgment letter on page 2. The Respondent’s second bundle of documents reflects the charge sheet signed and accepted by the Applicant as well as the amended charge sheet. It therefore cannot be correct that the hearing proceeded without charges being put to the Applicant.
52. The Applicant also received a letter stating the reason for his dismissal. This leaves the challenge in terms of procedure to that of the bias of the chairperson and that the hearing was conducted in IsiXhosa.
53. It is trite what where an employee failed to raise the issue of bias at the disciplinary enquiry, it would be difficult to rely on bias as a defence later on. If the employee became aware of reasons at a later stage that could prove a perception of bias, the employee my rely on same at a later stage.
54. None of the above factors were present in the challenge of bias raised by the Applicant in the matter before me, on that basis, the Applicant’s claim that the chairperson was bias is baseless and without merit.
55. The Applicant was well represented during the disciplinary hearing, if the Applicant was unable to express himself or to understand, I have no doubt that the Applicant’s representative would have raised the issue. This was also not raised in the appeal form, the Applicant’s claim must be dismissed.
56. Turning to substantive fairness, section 188(2) of the LRA states that any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.
57. Item 7 of Schedule 8 of the Code of Good Practice states that any person who is determining whether a dismissal for misconduct is unfair should consider whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and if a rule or standard was contravened, whether or not the rule was a valid or reasonable rule or standard; the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; the rule or standard has been consistently applied by the employer; and dismissal was an appropriate sanction for the contravention of the rule or standard.
58. The Applicant placed in dispute that he did not breach any rule and is therefore not guilty. The Applicant was charged with; “You committed Fraud in that on the 30 November 2017 and 30 November 2018, you fraudulently applied for two student Diplomas using the name of the Campus Manager and you forged her signature, you stamped the fraudulent documents with an old stamp which was no longer used by Sitete Campus,”
59. The learned author, Mr John Grogan defined fraud as follows: “the unlawful making, with intent to defraud, of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.”
60. I already determined that on a balance of probabilities, Ms Manyala’s version is more probable and was confirmed through the documentary evidence submitted in terms of the appeal application. The appeal application in its entirety never makes reference to or alludes to the fact that the Applicant was not guilty of the allegation, but rather seeks a sanction less than dismissal.
61. The Applicant’s version of denial was rejected, on that basis, it must be accepted that the Applicant indeed acknowledged his wrongdoing to Ms Manyala and that he was guilty of the charge put against him. Ms Manyala’s version is the more probable version.
62. The Applicant’s conduct amounts to fraud as his actions prejudiced the credibility of the College Qualifications and he unlawfully used Ms Manyala’s signature with the intent to defraud the College.
63. The Applicant, in argument, states that the Respondent failed to call the witness who notified Ms Manyala and that Ms Manyala’s evidence amounts to hearsay. I can agree with the Applicant that what was said by another person to Ms Manyala, amounts to hearsay. What is important in this instance, is that Ms Manyala’s evidence is limited to the meeting she had with the Applicant, and his confession or admission letter which does not amounts to hearsay evidence. Once Ms Manyala’s evidence was accepted in this regard, there is nothing more to establish, the Applicant’s guilt was confirmed in his acknowledgement letter and the appeal application.
64. Now turning to the issue of sanction. The Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC) held that in assessing if dismissal for misconduct was fair, one must look at the nature of the misconduct, any harm caused by the misconduct and its impact on the business. Factors relevant to the individual worker include the impact of dismissal on the employee, his service record and whether additional training or instruction would result in the employee not repeating the misconduct.
65. After considering the factors laid out by the Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC), I found that the dismissal of the Applicant was substantively fair. The Respondent’s business is to provide students with credible qualifications and the labour market with competent qualified students.
66. In argument the Applicant suggested that Ms Manyala had a personal vendetta against the Applicant related to whether she will be able to work with the Applicant again, this is merely speculation. The Applicant never laid any complaint against Ms Manyala, if that was so. In fact, the Applicant used his hard work and long hours of work as mitigation to attract a lesser sanction than dismissal which is an about turn in how he now views his hard work.
67. The Labour Appeal Court in Autozone v Dispute Resolution Centre of the Motor Industry and others (JA 52/2015) [2019] ZALAC 46; [2019] 6 BLLR 551 (LAC); (2019) 40 ILJ 1501 (LAC) (handed down on 13 February 2019) held that where the offence in question reveals a stratagem of dishonesty or deceit, it can be accepted that the Employer probably will lose trust in the Employee, who by reason of the misconduct alone will have demonstrated a degree of untrustworthiness rendering him unreliable and the continuation of the relationship intolerable or unfeasible. The Court further said that dishonest conduct, deceitfully and consciously engaged in against the interests of the Employer, inevitably poses an operational difficulty. The Employer thereafter will be hard pressed to place trust in such an Employee.
68. On that basis, I found that the Applicant’s dismissal was procedurally and substantively fair.
69. I therefore find it appropriate to make the following award.
70. Award
71. The dismissal of the applicant, Mr Mpofu, Prosper Morgan Mehluli, by the respondent, Ingwe TVET College, was procedurally and substantively fair.
72. The Applicant is not entitled to any relief.
Signature:
Commissioner: H Jacobs