IN THE ELRC ARBITRATION
BETWEEN:
S RADEBE “the Applicant”
and
DEPARTMENT OF HIGHER EDUCATION AND TRAINING –
EHURHULENI WEST TVET COLLEGE “the Respondent”
ARBITRATION AWARD
Case Number: ELRC804 – 23/24GP
Last date of arbitration: 8 August 2024
Final closing arguments submitted in writing on: 27 August 2024
Date of award: 30 September 2024
COEN HAVENGA
Senior ELRC Arbitrator
Education Labour Relations Council
Details of hearing and representation
1. This arbitration took place in terms of the referral of the matter by the Applicant to the Education Labour Relations Council. It was held over several days at the premises of Ekurhuleni West TVET College in Germiston. The last day of the hearing was on 8 August 2024. The parties submitted written closing arguments on 27 August 2024. The Council granted extension for submission of the award due to the volume of evidence presented during the arbitration hearing.
2. The Applicant is Mr Radebe S, represented by Mr Nkosi, J, and official of NEHAWU. The Respondent is the Department of Higher Education and Training (Ekurhuleni West TVET College) (“DHET”), represented by Mr Nkosi, V.
Issue to be decided
3. The dismissal of the Applicant is not in dispute. I must determine whether his dismissal was substantively fair. The Applicant did not dispute the procedural fairness of his dismissal.
Background to the dispute
4. The Respondent submitted Bundle A, while the Applicant submitted Bundle B.
5. The Applicant was employed by the Respondent at Ekurhuleni West TVET College (“the College”) as a Senior Lecturer: Education Specialist in Mechanical Engineering at the time of his dismissal. He had been employed by the Respondent since 01 January 1998. He was dismissed on 28 February 2024.
6. The Applicant was charged in terms of the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC) and following a formal disciplinary hearing found guilty of the charges below.
7. Count 1: Gross negligence – in that in his respective area of responsibilities as Business Unit Manager of Ekurhuleni West TVET College NSF Project, he contravened section 45(b)(c) and 57(b) and (c) of the PFMA in that he failed to:
7.1 Ensure the effective, efficient and economical use of financial resources awarded to EW TVET College.
7.2 Take effective and appropriate steps to prevent, within his area of responsibility, fruitless and wasteful expenditure.
7.3 Safeguard the assets of the EWC TVET College procured with money from National Skills Fund (“NSF”); and due to the above contraventions; inter alia –
7.4 EW TVET College paid for four chain alignment units supplied by Ferdco Consulting (“Ferdco”) and Knowledge Dynamics (“Knowledge”) and yet only two were delivered, which both claim to have delivered the said two.
7.5 Ferdco Consulting did not deliver all the bench vices which were ordered and paid for.
7.6 Snowy Global Investments (Pty) Ltd (“Snowy”) did not deliver one of the spherical bearings and puller sets that were ordered and purchased at a hugely excessively price.
7.7 Equipment was not timeously and/or correctly recorded in the asset register of the EWC TVET College.
7.8 As a result of the above gross negligence, NSF had fruitless and wasteful expenditure in the estimated amount of R 232 000.00
8. Count 2: Dishonesty – in that on 19 May 2020 he signed a delivery note to the effect that all ordered items were delivered, whereas he knew or ought to have known that other items were not delivered.
9. The parties held a pre-arbitration meeting and submitted the signed agreed upon minutes as part of the record. It is trite law that the parties are bound by issues agreed upon in the signed pre-arbitration agreement.
10. The following issues were recorded as being the issues in dispute:
10.1 Whether the dismissal was fair or not.
10.2 Whether the sanction was too harsh.
10.3 Whether the Applicant was guilty of gross negligence.
10.4 Whether the College paid for four chain alignment units and yet on two were delivered.
10.5 Whether Ferdco delivered all the bench vices.
10.6 Whether Snowy delivered the spherical bearing and puller sets.
10.7 Whether the spherical bearing and puller was purchased at a hugely excessive price.
10.8 Whether money was lost in the process.
10.9 Whether there was dishonesty in terms of the items that were delivered and acknowledged by the Applicant as reflected in count 2.
10.10 Whether the Respondent acted inconsistently in the manner in which it dealt with the issue of 14 March 2018.
11. In clause 2 of the pre-arbitration minutes the parties agreed that the price of the spherical puller was excessive. The parties also agreed that the equipment that were purchased were not registered on time in asset register.
12. The Applicant did not dispute the procedural fairness of his dismissal.
13. The relief the Applicant seeks from this arbitration hearing is retrospective reinstatement without loss of benefits.
14. An inspection in loco was conducted in the workshop, where the following observations were made and items pointed:
14.1 Chain alignment units X 2.
14.2 V-belt Alignment units X 2.
14.3 Bench vices attached to work benches.
14.4 The parties could not agree whether the vices came attached to a bench and will deal with the issue in evidence.
14.5 A Spherical bearing.
14.6 A bearing puller.
Summary of evidence
The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital recordings of the proceedings will reflect the complete testimony of the witnesses.
Respondent’s case
15. Peter Kgorutle (“Kgorutle”) testified under oath that he joined the College in 2014 as Supply Chain Manager (SCM). He was promoted to Deputy-Principal Finance in April 2020. As SCM he managed procurement for the College.
16. During the inspection they found 2 chain alignment units. A1 – A106 reflect the investigation report into the National Skills Fund Expenditure investigation by Mr Werner Steyn (:Steyn”) of Nexus Forensic Services. The investigation was initiated by findings the Auditor-General made in respect of the College in its 2019/2020 annual audit. A25 reflects that the College paid R485 645,00 to Ferdco, R328 400,00 to Knowledge and R350 7000,00 to Snowy.
17. Steyn was sent to the College on 27 January 2022 to investigate the matter. He met with Kgorutle and requested him to identify all items purchased with NSF money.
18. A107 reflects the procedure for purchasing of assets for the College, which the Applicant was aware of via the intranet of the College. In short, the process entails identification of goods at workshop level and completion of a request to purchase which is taken to the supervisor to confirm. The form is then taken to supply chain. They take it to the budgetary unit, then to the CFO and the Principal. Thereafter the quotations are sourced, which are opened and listed by a committee. The information is then sent to the requester, in this case the Applicant. The Applicant signed to confirm, then it went back to the CFO and Principal for final approval. An official order was created, and the order was placed. The Applicant would then communicate with the supplier. Delivery would be to the end user, who was the Applicant. He stamped the invoice and signed it as confirmation that he received the goods. Thereafter it went to the supervisor for endorsement and submitted to finance for payment. He also had to notify the asset clerk to record the barcodes in the asset register.
19. Kgorutle testified that he assigned the SCM clerk Ms Thembi Mkwayi (“Mkwayi”) to source quotations and that after she sourced the quotations the committee dealt with the quotes as the price was above R30 000.00. The quotes that were requested were for 2 chain alignment units, 1 gear box, and 2 valves (Optional).
20. On 19 May 2020, the Applicant signed for the receipt of the equipment from Knowledge which included the chain alignment unit at the Germiston Campus. He signed the delivery note with the stamp of the College which stated, “Items checked as correct according to order/delivery note.”.
21. Kgorutle testified that on 08 June 2020, the Applicant signed the Ferdco Tax invoice dated 01 June 2020 and certified that the items were checked as correct according to order/delivery note. The tax invoice included the chain alignment unit. This therefore meant that there had to be four chain alignment units at the College however only two were delivered. Both Ferdco and Knowledge claimed to have delivered 2 chain alignment units each.
22. An inspection in the workshop with Steyn and the Applicant identified 2 chain alignment units and 2 V-belt alignment units. The Applicant brought the request and invoice to SCM so he must know where the items were. The Applicant was negligent.
23. The asset unit was not notified, and the equipment was not recorded in the asset register timeously. The Applicant had to notify the asset unit as he was the one that received the goods, according to the procedure. His failure to do so constituted misconduct.
24. The Applicant as end user had the duty to report excessively high quotes. As end user he had the knowledge to do market price analysis. The price of the bearing puller was excessively high. Snowy supplied it at R30 000,00 each, while the price on the box revealed it was R1450,00. It should have alarmed the Applicant as end user.
25. Snowy did not deliver one of the spherical bearing and puller sets that were ordered and purchased at that hugely excessive price. Steyn discovered during his investigation that only one spherical bearing and puller was identified at the workshop and when an inspection in loco was conducted at the disciplinary hearing only one was identified as well. Snowy delivered only one spherical bearing unit which they paid R1450.00 for but charged the College R 60 000, which was hugely excessive.
26. Kgorutle testified that Ferdco did not deliver all the bench vices which were ordered and paid for. During his investigation Steyn identified two tables that were delivered by Ferdco and noticed that the tables did not have vices as reflected in the invoice dated 08 June 2020, however the bench vices were located somewhere in the workshop ground floor and not installed on benches as per the invoice and order.
27. A34 reflects a delivery note from Knowledge, showing two chain alignment units were delivered. A117 reflects a delivery note from Ferdco, showing two chain alignment units were delivered. By signing the two delivery notes the Applicant confirmed that 4 chain alignment units were delivered by two different companies while only two units were found, thus only two chain alignment units were delivered at the College whilst the Applicant signed for delivery of four chain alignment units which were also paid for by the College. Kgorutle would not comment on the question whether the Applicant was dishonest when he signed for four while only two were delivered.
28. Werner Steyn (“Steyn”) testified under oath virtually from Bloemfontein that he previously was employed by Nexus Forensic Services as a forensic investigator. He is currently employed by Pro Iustitia Forensics as a Senior Commercial Forensic Practitioner. In 2022, while still with Nexus Forensic Services, he was tasked with the forensic investigation of the NSF money of R27 million which was distributed to and at the College. He was responsible for the Nexus Forensic Services report reflected in A1 – A106. It is an investigation report on the investigation he did into the National Skills Fund Expenditure. The investigation was initiated by findings the Auditor-General made in respect of the College in its 2019/2020 annual audit.
29. He compiled a formal report, and the relevant part is contained in A1 to A106. He confirmed the contents and findings of his report. (NOTE: The report is contained in detail in the record of the arbitration hearing and will not be repeated here in full.)
30. He selected a number of purchase orders to verify whether the Respondent received what they paid for. The purchase orders reflect in A25 that the College paid R485 645,00 to Ferdco, R328 400,00 to Knowledge and R350 7000,00 to Snowy.
31. In respect of charge1 under Count 1, gross negligence, he referred to the payment of four chain alignment units supposedly supplied by Ferdco and Knowledge, but only two were delivered. He conducted an inspection in loco at the College on 27 January 2024, during which he interviewed Kgorutle about the general procurement processes that are followed at the College and about the three purchase orders. Kgorutle explained the procurement process that is followed at the College. On 03 February 2020 Kgorutle issued an EW TVET College closed invitation to service providers to quote for 2 chain alignment units, 1 gear box and 2 valves (Optional). The quote did not have a specification on each of the required items and/or equipment and the only information they had was the one that was given to them by the Applicant.
32. Knowledge was awarded the order and SCM issued an official order( EWC 2020/2069575) on 26 February 2020 in the amount of R 328 400.00. On 19 May 2020 the Applicant accepted receipt of the equipment at the Germiston Campus and signed the delivery note from Knowledge. On 22 May 2020 the Applicant signed the invoice from Knowledge which both certified that the “items are checked as correct according to order/delivery note”.
33. On 27 January 2022 Kgorutle was requested to identify the equipment reflected on the Knowledge invoice. Kgorutle with the assistance of Sphiwe Mapisa initially identified the chain alignment unit as the units supplied by Knowledge, however later that afternoon another service provider Ferdco, identified the only two units in the workshop as the one that they had supplied.
34. The Applicant was called by Kgorutle to identify the chain alignment units from Knowledge because it became clear that Knowledge invoiced for two chain alignment units and Ferdco also invoiced for two chain alignment units. The Applicant could not identify the two chain alignment units. He stated that it happened a long time ago.
35. Steyn testified that during his inspection in 2022 only two chain alignment units were found in the workshop. In 2023, during the disciplinary hearing, another inspection confirmed that only two chain alignment units were found despite the fact that two companies invoiced and were paid for delivering four chain alignment units.
36. In respect of charge 2 under Count 1, gross negligence, he found that referred Ferdco did not deliver all the bench vices which were ordered and paid for. During his investigation and inspection there were only two tables that were identified, and it was noticed that none of the tables contained four vices as specified in the invoice from Ferdco dated 08 June 2020. Further search revealed that three bench vices were lying on the floor and were not fixed to the work benches. These findings were confirmed by both Kgorutle and the teaching staff.
37. In respect of charge 3 under Count 1, gross negligence, he found that Snowy did not deliver one of the spherical bearing and puller sets that were ordered and purchased at a hugely excessive price. Kgorutle issued the invitation to quote as per A70, and on 25 Mat 2020 Snowy delivered the items and the Applicant received it with a price tag of R60 000,00. During the investigation and inspection Steyn found that only one unit could be identified and testified that it was the only unit that could be identified in the workshop. Snowy delivered only one spherical bearing unit.
38. Closer inspection of the box containing the spherical bearing and puller set that Snowy delivered revealed that the price on the box was R1450.00. The item was purchased at a hugely expensive and excessive price of R30 000,00 per item. Even with a very generous mark-up of 200% it was still hugely excessive. That excessive overpayment could have been avoided by the Applicant if he exercised the reasonable care that was to be expected of him in his position.
39. In respect of charge 4 under Count 1, gross negligence, Steyn found that equipment was not timeously and/or correctly recorded in the asset register of the College. Kgorutle wrote an email on 29 January 2022 wherein he stated after delivery of the assets, the recipient, being the Applicant, had to inform the asset unit of the procurement. It was however not done as it was found that the items were not recorded in the asset register.
40. In respect of Count 2, dishonesty, Steyn testified that he found that only two chain alignment units were delivered at the College whist the Applicant signed for delivery and receipt of four chain alignment units.
41. Steyn testified that the affidavit by Ferdinand Nong dated 29 August 2023 (B1.1.7) wherein he claimed to have made a mistake on the invoice by writing chain alignment instead of V-belt alignment was made long after his investigation was concluded on 22 March 2022. The supposed corrected invoice contains obvious errors, i.e. a date of “2013.02.08” in the date column (seven years before the date of invoice) and a different date of invoice as the original one which is reflected in A52 which was the subject of his investigation findings. The “corrected” invoice has no stamp on it and no acknowledgement of receipt. It is not signed by anyone.
Applicant’s case
42. Solomon Radebe, the Applicant, testified under oath that he assessed the workshop and identified the equipment that is needed in the workshop.
43. He was called to a meeting with Steyn in the workshop. Steyn asked him to identify the chain alignment unit, which he did. He identified two chain alignment units and two v-belt alignment units. He signed for, acknowledged and verified four chain alignment units from Ferdco and Knowledge . He could not dispute that the College paid for four chain alignment units.
44. However, he noticed the mistake when Ferdco Consulting delivered the items to the College. He did tell Thembi about it, and they called Kgorutle. Kgorutle told them to sign the tax invoice from Ferdco which indicated that Ferdco delivered the chain alignment units.
45. The Applicant confirmed that he signed two tax invoices. He could not comment on whether that means that he signed for four chain alignment units and the College paid for four of them. The Applicant agreed that there were only two chain alignment units at the College, although he signed for four.
46. The Applicant testified that Ferdco delivered all the workbenches and vices that were ordered and that the vices were still at the workshop, they were just not attached to the benches.
47. The Applicant testified that Snowy did deliver the spherical bearing and puller sets that were ordered, according to the delivery note and/or order. He cannot agree that the College paid a hugely excessive price of R30 000,00 per unit compared to the price of R1450,00 which is reflected on the packaging box.
48. The Applicant testified that he reported the equipment to Ms Carlo as per the College Supply Chain Manual and Procedure. It was not his responsibility as the end user to inform the asset unit.
49. The Applicant agreed that he did sign the delivery note on 19 May 2020 for the delivery of four chain alignment units. He could not dispute that only two were delivered. He was not dishonest or negligent.
50. The affidavit of Nong was made after the Applicant’s dismissal. He agreed the corrected invoice had incorrect dates that did not make sense. It was sent to the College in 2023. He did inform Kgorutle on 16 April 2024 while preparing for the arbitration that there was a mistake on the invoice. He agreed that this version was never put to Kgorutle in cross-examination to allow him to respond to it.
51. Ferdinand Nong, (“Nong”), testified under oath that he is a director of Ferdco. B1.1.2 dates 8 June 2020 reflects a delivery note from his book. They delivered 2 marking tables, 2 work benches and 2 V-belt alignment units. The chain alignment units on the note were a mistake. Instead of writing V-belt his guy wrote chain, but they delivered V-belt. The mistake was rectified one or two days later. He had a call from Thembi who asked him to rectify it.
52. B1.1.3, a tax invoice, the 3rd item, the secretary wrote V-belt, changed it to chain in the 4th item. It was delivered on 20 June 2020. The invoice was sent to the College for payment. B1.1.4 is a quote dated 11 November 2019, it was re-sent in January 2020, but his guys did not change the dates. They went to the mine to copy the equipment and then quoted for the items in the amount of R322 920,00.
53. B1.1.5 is a Ferdco tax invoice. It is different from B1.1.3, which had an error on it. B1.1.5 rectified B1.1.3. Everything was delivered as per the quotation.
54. After they identified equipment on the floor in the workshop, he was requested to write the affidavit in B1.1.7. He wrote it on 29 August 2023. Pretty asked him to resend the correct invoice. They did a new quote and invoice and changed it from chain to V-belt. The delivery took place in 2020 while the affidavit was written in 2023. He thought that both invoice numbers were the same. It was used for payment.
55. Charge 1 and 2 are incorrect. Steyn did not understand the error. He did not deliver a chain unit.
56. He agreed that the Ferdco tax invoice on B1.1.3 contained 2 chain alignment units and that B1.1.3 was used by the Kgorutle and the College to pay Ferdco. He could not dispute that A35, the invoice from Knowledge, contained 2 chain alignment units, and that A35 was used by Kgorutle and the College to pay Knowledge. The Ferdco invoice was a mistake.
57. B1.1.5 is a tax invoice from Ferdco created on 6 May 2020. It was sent to the College one or two days later. When it was put to Nong that the Applicant said it was sent in 2023, Nong replied that he could not remember everything because it happened a long time ago.
58. Nong did not testify at the internal disciplinary hearing of the Applicant. He agreed that he made his affidavit after the Applicant had been dismissed. He agreed that the invoice in B1.1.5 was sent after the Applicant’s dismissal. He agreed that he was wrong when he said it was sent one or two days later. Nong then testified that it was sent twice, in 2020 and later. He did not respond when it was put to him that he was now providing a third version of what happened. B1.1.5 is the one they sent to Thembi in 2020. There might have been a problem with his email, and he sent his driver to deliver it. It was in fact sent several times. The same invoice was sent over and over and over several times. He sent his affidavit in 2023, together with the invoice.
Analysis of evidence and argument
59. Section 138(7)(a) of the LRA requires me to issue an award with brief reasons.
60. Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the legislation, arguments, legal principles, case law and Codes of Good Practice referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing, as reflected in the record of the arbitration hearing.
61. In considering the fairness of the dismissal of the Applicant for misconduct, I will consider the principles contained in the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC), as well as the principles contained in the Code of Good Practice: Dismissals, as contained in Schedule 8 to the Labour Relations Act 66 of 1995 (the Code). The dismissal of the Applicant is not in dispute. The Applicant disputes only the substantive fairness of his dismissal, and the Respondent is therefore required to prove on a balance of probabilities that it was substantively fair.
62. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC), where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC).
63. The Applicant was charged in terms of the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003 of the Public Service Coordinating Bargaining Council (PSCBC), with gross negligence and dishonesty as set out in paragraphs 7 and 8 above.
Substantive fairness
64. The two witnesses for the Respondent, Kgorutle and Steyn, corroborated each other in all material aspects. They did not falter in their testimonies and came across as credible and reliable witnesses. Steyn is an independent witness, who had no motive other than to investigate the use of the NSF money allocated to the Respondent. He is a highly qualified and experienced forensic investigator who could derive no benefit from falsely implicating any employee of the College, including the Applicant. He did a thorough investigation which included onsite inspections, and he involved the Applicant all along to provide explanations where relevant. He generated a comprehensive report.
65. The Applicant on the other hand was a poor witness. He was evasive, vague and obstructive to the point that his own union representative requested opportunity to address him in respect of how he responded in cross-examination. His only witness, Nong from Ferdco, came across as an even poorer witness. He struggled to explain the anomalies in the recently created invoice in respect of dates and content. He contradicted the Applicant in several instances. I find it odd that Nong was never called as a witness by the Applicant during the internal disciplinary hearing, as he could have provided vital material evidence in favour of the Applicant, if it was true. One of the several versions given by Nong was that the supposed correction of the invoice happened a day or two after the initial delivery, which means the information was available to the Applicant at the time of the internal disciplinary hearing. The fact that he was not called, and all the discrepancies with the dates in B1.15 support a finding on a balance of probabilities that the whole correction attempt was rather a clumsy amateurish attempt to cover up irregularities. The Applicant simply refused to admit the obvious as well during cross-examination. He continued to deny that R30 000,00 compared to R1450,00 for a spherical bearing unit is highly excessive. Any reasonable, credible person would concede to that. One should also remember that the Applicant agreed in the pre-arbitration agreement that the price was excessive, and that the items were not recorded in the asset register.
66. Nong testified that the corrected invoice was sent to Kgorutle and/or the College over and over and over. Apart from the fact that he contradicted himself and the Applicant in this regard, this version was also not put to Kgorutle to respond to in cross-examination. This is a material aspect of this case. In NUM and another v CCMA and others [2018] 3 BLLR 267 (LAC) the Court found that since keys aspects of the employee’s case were not put to the employer’s witnesses in cross-examination and had not been canvassed in the evidence of those witnesses in chief, their version on such aspects was not placed before the Commissioner. The same principle will therefore apply in this matter.
67. It is not in dispute that the Applicant was aware of the procedure for purchasing of assets for the College. He had the duty to identify goods at workshop level and complete a request to purchase. Delivery would be to the end user, who was the Applicant. He stamped the invoice and signed it as confirmation that he received the goods. He also had the duty as the end user to do pricing and ensure that the College was not robbed with excessive inflation of prices on items ordered.
68. I am satisfied that the Respondent proved on a balance of probabilities that the College paid for four chain alignment units supplied by Ferdco and Knowledge but that only two were delivered, that Ferdco did not deliver all the bench vices which were ordered and paid for, that Snowy did not deliver one of the spherical bearings and puller sets that were ordered and purchased at a hugely excessively price and that equipment was not timeously and/or correctly recorded in the asset register of the College.
69. I find that the above was the result of the misconduct of the Applicant, and that as a result the NSF had fruitless and wasteful expenditure in the estimated amount of R232 000.00. The Respondent proved on a balance of probabilities that the Applicant failed to ensure the effective, efficient and economical use of financial resources awarded to the College. He failed to take effective and appropriate steps to prevent, within his area of responsibility, fruitless and wasteful expenditure, and safeguard the assets of the College procured with money from National Skills Fund. I find that the reasonable person in the position of the Applicant, with his skills and experience, would have taken the necessary steps to comply with his responsibilities. The Applicant’s failure to do so, and the extent of the neglect, warrant a finding on a balance of probabilities that he made himself guilty of gross negligence.
70. The Applicant’s attempt to cover up his negligence through the actions of Nong, also support a finding on a balance of probabilities that he acted dishonestly when he on 19 May 2020 signed a delivery note to the effect that all ordered items were delivered, whereas he probably knew that all the items were not delivered.
71. I am satisfied that in respect of Count 1, charge 1 to 4, and Count 2, the Respondent proved on a balance of probabilities that the Applicant did commit the misconduct he was found guilty of, i.e. gross negligence and dishonesty, and that the Applicant contravened a rule or standard regulating conduct in, or of relevance to, the workplace.
72. The Applicant did not dispute knowledge of the rules. Although the Applicant’s argued the inconsistent application of disciplinary action by the Respondent in his closing arguments, that issue was not placed in dispute in the pre-arbitration agreement. The Applicant also did not testify to that effect.
73. In considering an appropriate sanction, I am required to exercise my discretion reasonably, honestly and with due regard to the general principles of fairness. The Code states that one of the requirements of a fair dismissal for misconduct is that the dismissal must be an “appropriate” remedy, in the light of the facts of the case. The courts have accepted that the ultimate justification for employers’ power to impose discipline flows from their right to manage their business effectively. (See De Beers Consolidated Mines Ltd v CCMA & Others [2000] 21 ILJ 1051 (LAC) at 1058F-G). The Applicant’s misconduct must be seen against the background that he was a senior lecturer and business unit manager in a position of trust.
74. The misconduct of the Applicant must be seen in a serious light. The negligent and wasteful expenditure of public funds meant for teaching and learning negatively impacts on the capacity of the Department of Higher Education and Training to exercise its mandate efficiently, which would not be in the interest of the students at the College.
75. The improper conduct of the Applicant relates to a callous disregard for established best practice policies and procedures. This is unacceptable behaviour by someone in the position of senior lecturer and business unit manager, who should set an example for junior staff and students.
76. At common law, dishonest conduct by employees is regarded as the gravest form of breach of the duty of fidelity, justifying instant dismissal. It is well established that the relationship between employer and employee is in essence one of trust and confidence and that conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement. The courts have approved the clearly established principle that dishonesty undermines the trust upon which the employment relationship is built and justifies dismissal – see Kalik v Truworths (Gateway) & Others (2007) 28 ILJ 2769 (LC); Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & Others (2008) 29 ILJ 1180 (LC).
77. The conduct of the Applicant was also dishonest. The Labour Appeal Court had this to say about the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC): “This trust which the employer places in the employee are basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee.”. Dismissal is generally justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer, as was done in this case – John Grogan, Workplace Law, 10th Edition. Dismissal is an appropriate sanction when the offence involves dishonesty, even in the case of a first-time offender. See Pillay v C G Smith Sugar Ltd (1985) 6 ILJ 530 (IC) at 538 G.
78. An employer generally would have two reasons for wanting to get rid of a dishonest employee – one is that the employee can no longer be trusted, and the other is the need to send a signal to other employees that dishonesty will not be tolerated. The latter relates to the deterrence theory of punishment. A successful business like a college operates on the basis of trust. Dishonesty to such an extent impacts on the trust relationship that dismissal normally is, or should be, a sensible operational response to risk management in this particular enterprise. The Labour Court has indicated that to be the legal position, and that it is impractical to draw subtle distinctions between degrees of theft – see Miyambo v CCMA & others (2010) 31 ILJ 2031 (LAC). Mitigating factors such as a clean record and long service are unlikely to restore the trust relationship.
79. The Respondent must be able to trust its employee to refrain from dishonest behaviour. It is clear from the evidence of the Respondent that the trust in the Applicant to perform to these required principles has gone.
80. I had due regard to the principles set out in the case of Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) which underlines the principle that the employer has the burden of proof to show that the trust relationship has broken down irretrievably. The labour courts have held that the destruction of the relationship of trust is the ultimate justification for a dismissal. (See Council for Scientific & Industrial Research v Fijen [1996] 6 BLLR 685 (AD); Lahee Park Club v Garrat [1997] 9 BLLR 1137 (LAC).
81. I also refer to Theewaterskloof Municipality v SALGBC (WC) and others LC C966/2008, 14 May 2010, wherein the Labour Court (LC) stated that the question of trustworthiness was seen to go beyond offences which are centrally dependent upon proof of outright dishonesty. The LC stated the general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship will entitle the employer to bring it to an end is a long established one. The LC stated that comparison can be drawn between length of service and a clean record on the one hand, and the circumstances of the offence and lack of remorse amounting to defiance on the other. The LC found it would be incorrect to hold the dismissal was unfair and to require the Municipality to restore the employee to a position in which he has wittingly compromised a core value and has set himself uncompromisingly against any course of reparation. There has either been no recognition by him of wrongdoing on his part or a stubborn refusal to say as much to his employer. Either way, he cannot now as a matter of fairness insist that he is to be placed back in his post, the LC found. There can be little room for the notion of corrective discipline in this situation. The LC also found that where an employee refuses to demonstrate any acceptance of wrongdoing, indicates no degree of whatsoever of remorse, makes no move to correct what he has done, and stands firm with an attitude of opposition towards his employer, then such employee through his own conduct undercuts the applicability of corrective or progressive discipline.
82. The above is aptly applicable in this matter. The Applicant showed no remorse but continued to deny any wrongdoing. The actions of the Applicant leave no option for the application of progressive discipline. I could find no other circumstances from the evidence that would dictate differently.
83. The South African Constitutional Court also ruled that the seriousness of the misconduct dictates whether the trust relationship has broken down – see South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38.
84. The Applicant’s years of service cannot outweigh the gravity and seriousness of his offences. The Labour Appeal Court has held that long service cannot in itself provide a basis for rendering a dismissal unfair. See De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC).
85. I therefore find that the sanction of dismissal is fair and appropriate in the circumstances.
86. I accordingly find the Applicant’s dismissal substantively fair.
Procedural fairness
87. The Applicant did not dispute the procedural fairness of his dismissal, and I accordingly find the Applicant’s dismissal procedurally fair.
Relief
88. The Applicant is not entitled to arelief.
Award
89. The application is dismissed.
SIGNED AT KEMPTON PARK ON THIS 30th DAY OF SEPTEMBER 2024.
Coen Havenga
Senior ELRC Arbitrator