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31 July 2026 – ELRC546-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT BUTTERWORTH

IN THE ARBITRATION BETWEEN

NEHAWU OBO SIMPHIWE SIJADU & 6 OTHERS APPLICANT

AND
KING HINTSA TVET COLLEGE RESPONDENT

CASE NO ELRC546-25/26EC
DATE/S OF HEARING 01/12/2025 – 29/06/2026
DATE AWARD SUBMITTED 30 JULY 2026
NAME OF PANELIST SIZIWE GCAYI

SUMMARY : Labour Relations Act No 66 of 1995 – section 186(1): Alleged unfair dismissal by the Employer.

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

  1. This matter was set down for arbitration, under the auspices of the ELRC in terms of section 191(5) of the Labour Relations Act, 66 of 1995 (“the LRA”) as amended on 01/12/2025, 29-30/01/2026, 26-27/03/2026, 04-05/06/2026 and 29 June 2026, at King Hintsa TVET College in Butterworth. Mr Vuyani Zweni an official from NEHAWU represented the Applicants [ Simphiwe Sijadu, Ayanda Binase, Zuko Poswa, Luvuyo Siba, Siyabonga Khumalo, Shirley Mkhithika and Daluxolo Myathaz.] Mr Zizwe Maliwa an official represented the Respondent [ King Hintsa TVET College]
  2. The proceedings were electronically and manually recorded.
  3. The Parties handed in bundle of documents in support of their case. The Applicants bundle of documents is named bundle B, C, D & E. The Respondents bundle of documents is named bundle A1, A2 & January – September.
  4. The parties were given until 10 July 2026 to file their closing arguments with the ELRC. Closing arguments were received by the Council from both parties. The submissions made by the parties were taken into consideration in arriving at a fair decision.

ISSUE TO BE DECIDED.

  1. I have to decide whether the dismissal of the Applicants was fair. If not, I must decide on the appropriate relief in terms of Section 193 and 194 of the LRA.

BACKGROUND

  1. The 7 Applicants were employed by the Respondent as lecturers at Idutywa Campus. Simphiwe Sijadu joined the Respondent on 01/10/2015, Siyabonga Khumalo joined the Respondent on 02/08/2020, Shirley Mkhithika joined the Respondent on 02/05/2012, Zuko Poswa joined the Respondent on 03/02/2014, Luvuyo Siba joined the Respondent on 11/03/2015, Ayanda Binase joined the Respondent on 01/05/2012 and Daluxolo Myathaza joined the Respondent on 19/10/2016. Their services were terminated on 08/05/2024 following a disciplinary hearing held on 14/08/2025, 04-08/09/2023 and 02-03/10/2023. The relief sought by the Applicants is reinstatement. The Applicants were dismissed for acts of misconduct on the following charges:
    1st charge: It is alleged that you committed an act of misconduct in that you contravened PSCBC RESOLUTION 1 OF 2003, ANNEXURE A which reads as follows: fails to carry out a lawful order or routine instruction without just or reasonable cause in that”: [1]. You were reasonably instructed to collect appointment letters or on about 28 October 2022 – 31 October 2022. [2] You failed to collect appointment letters that instructed you to invigilate the October / December 2022.

2nd charge: “ It is alleged that you committed an act of misconduct when you contravened PSCBC RESOLUTION 1 OF 2003, ANNEXURE A which reads: “Fails to comply with or contravenes an Act, Regulation or Legal Obligation” in that you failed to invigilate the October / December 2022 examinations which inherent in a lecturer job description as reflective on the Continuing Education and Training Act , 2006 [ Act 16 of 2006] which provides for the National Policy Pertaining to the Conduct Administration and management of the examinations of Colleges established, declared or registered by it.”

4th charge: It is alleged that you committed an act of misconduct when you contravened PSCBC Resolution 1 of 2003,Annexure A, which reads: Performs poorly or inadequately for reasons other than incapacity “in that you failed to teach and cover syllabus for the classes and or students that are allocated to you, this compromised the teaching and learning for those affected students.

SURVEY OF THE EVIDENCE
Respondent’s case

  1. The Respondent led evidence of four witnesses. Their evidence is summarised below:
  2. Mr Joseph Tokelo Chiloane [“Chiloane”] testified as follows: He was the chairperson of the disciplinary hearing of the Applicants. The hearing was conducted between 14/08/2023-03/10/2023. The hearing took long because he afforded the Applicants sufficient time to prepare for their case. At the commencement of the hearing he noted that the Applicants were not ready. It was his evidence that there were preliminary issues that were raised with him and he issued a ruling to that effect. In his testimony he referred to the Respondents bundle – January page 6, charge 1 he read it on record. The Applicants were found guilty of the offence, he relied on the evidence presented before him. Page 30 & 31 were read on record. The Applicants conceded that the instruction was given to them. On charge 2, he mentioned that he relied on the evidence presented before him, it was common cause that the Applicants did not collect the appointment letters and did not invigilate. The Applicants were found guilty of the offence. On charge 4, it was his evidence that the evidence of the Respondent‘s witnesses was not disputed by the Applicants that they did not complete the syllabus. The Applicants just stopped teaching. Page 30-40 was read on record. On sanction he mentioned that he considered the evidence presented before him in the form of oral evidence and documentary evidence. The Applicants failed to provide satisfactory evidence why they could not conclude the syllabus. The college incurred irregular expenditure because other lecturers had to be recruited from sister campuses e.g. Willowvale campus.
  3. Mr Anele Potelwa ( “ Potelwa ”) testified that he was in the employment of the Respondent, holding the position of accounting officer at Idutywa campus. The total number of the lecturers was 23. He joined the Respondent in 2012. It was his evidence that there were two trade unions at the college. There was SADTU and NEHAWU. In relation to the Applicants bundle A page 1 he mentioned he received it. On the INTERGRATED QUALITY MANAGEMENT SYSTEMS [ IQMS] he mentioned that the lecturers did not receive him well on the issue of IQMS. On external marking, he mentioned that Sijadu did not meet the requirements. The Centre manager and department of Higher education were informed, page 52 was read on record. On the issue of exam irregularities, it was his evidence that it took place in his absence, Ms Mabohlo was appointed as acting chief invigilator. An investigation was conducted and witnesses were called. In relation to the internal assessment, he mentioned that the Applicants did not complete the syllabus. The student’s marks were not completed. He requested the department of higher education to be lenient. He requested the students to write at the same time, the exams and internal assessments. They college incurred irregular expenditure. They received assistance from sister campus Willowvale. The Applicants were the only ones who withdrew their labour. The Applicants completed only one task. The Applicants told the students that they will not write the exams. In relation to the catch-up plan, he submitted that they struggled with the online registration, they were behind. The lecturers did not want to use the manual generated attendance register. Lecturers wanted ITS generated register and that resulted in delays in classes. The lecturers including the Applicants proposed a catch-up plan and it was refused due to budget constraints. In April 2023 a recovery plan was introduced and the Applicants together with other lecturers rejected it, however other lecturers accepted it.
  4. In relation to charge 1, Respondents bundle – January page 6 was read on record. He mentioned that the Applicants failed to collect the appointment letters. In relation to charge 2, he mentioned that the Applicants did not invigilate. They would come to the school and sit under the tree. Invigilation was part of the job description of the Applicants. External invigilators were employed to assist with the invigilation. In January 2023 they received communication from NEHAWU that they would not participate in registration. The classes commenced at the end of January 2023 and it was his evidence that the Applicants failed to offer teaching to the students. They also refused to invigilate supplementary exams. He mentioned that for the acts of 2022 no one was charged however the conduct of the Applicants continued in 2023. The Applicants were suspended because they did not execute their duties. On charge 4, the Applicants only had one task. There was no proof of teaching and learning offered to students, by the Applicants. The SAPS was involved. He maintained that other lecturers were able to provide proof of evidence that teaching and learning was offered to the students.
  5. On work relations, he mentioned that the Applicants did not regard him as the campus manager. The Applicants did not co-operate with him during meetings, they would just leave in the middle of the meeting. There was no sound good working relationship, the actions of the Applicants were intentional. They wanted the college to be ungovernable. They told the students that they will not study. During the internal disciplinary hearing the Chairperson instructed those who concluded their testimony to return to the college and offer learning and teaching, but the Applicants refused. It was his evidence that sanction of dismissal was appropriate considering what took place at Idutywa Campus.
  6. Ms Yandiswa Mayekiso (“Mayekiso”) testified as follows. She was in the employment of the Respondent at Idutywa campus, holding the position of a Senior lecturer for Report 191. All the Applicants were known to her. In relation to charge 1 it was her evidence that the Applicants were summoned by the Chief invigilator to collect invigilation letters. They refused to collect the letters. The reason for refusal was that they were not supposed to invigilate. She mentioned that previously the Applicants participated in the invigilation including external invigilation. Their conduct was reported to the senior management Ms Zengele and others. On charge 2, the Applicants did not invigilate despite being informed that it was part of their job description. The Applicants indicated that they won’t invigilate without remuneration. She mentioned that the Applicants were at the campus, signed the attendance register and sat under the trees. On charge 4, it was her evidence that the Applicants failed to finish the syllabus. They refused to take the catch-up plan. Other lecturers who were with them initially accepted the catch-up plan. The College incurred extra costs by recruiting other lecturers from Willowvale to do their job. The relationship between the Applicants and the campus manger initially was good, but later deteriorated after the appointment of Mr Potelwa.
  7. Ms Nobom Magwaca [“Magwaca”] testified as follows: She was in the employment of the Respondent, holding the position of a Senior lecturer for NCV. All the Applicants were known to her. Mr Siba was reporting to her. In relation to the charges, she mentioned that the Applicants refused to collect the invigilation letters. They did not invigilate. They did not perform their duties as expected. They only performed one task. The Applicants did not participate in the January 2023 registration process. The Applicants were on go slow and the students were affected. On sanction she mentioned dismissal was fair because the students were affected by the conduct of the Applicants. They had to study under pressure. On the relationship between the Applicants and the campus manager, she mentioned that initially it was good, but things changed, they received complaint correspondence from Ms Zothani from NEHAWU.

Applicant’s case

  1. The Applicants testified and called 6 witnesses in support of their case. Their evidence is summarised below: Mr Simphiwe Sijadu [ “Sijadu”] testified as follows: He was in the employment of the Respondent as a post level 1 lecturer for NATED. In relation to the charge 1, he mentioned that he did not collect the appointment letter because the matter was still sub iudice. On charge 2, he mentioned that he did not invigilate because the matter was still sub iudice. He differentiated between internal invigilation and external invigilation. On charge 3, he mentioned that it was not their own doing. Registration period consumed a lot of time. It was for the 1st time at Idutywa campus they had online registration. Classes started very late because of the registration problems. Classes started on 20 February 2023. Teaching and learning material arrived very late. There was a NEHAWU strike which lasted for 10 days. There was also a community strike which also contributed to the loss of time. He mentioned that it was impossible to complete tasks within a limited time. In February 2023 they requested a catch up plan, but it was rejected by the management. In April 2023 the management introduced a catch up plan and they rejected it because time was against them and they were expected to perform miracles. Bundle B page 9-10 read on record. It was his evidence that for November 2022 examinations, 15 lecturers did not participate to invigilate. The name of 7 lecturers on page 7 was read on record, only 8 lecturers were disciplined. The other 7 lecturers were at school working. The reason for their dismissal was failure to invigilate in 2022. He mentioned that they taught students until 19 May 2023. The relief sought is reinstatement.
  2. Mr Daluxolo Myataza [ “ Myataza”] testified as follows: He was in the employment of the Respondent at Idutywa campus since 19 October 2015. On charge 1, he mentioned that he did not collect the appointment letter because the matter was sub iudice. Charge 2, he did not invigilate because the matter was sub iudice. On the catch up plan, he mentioned that they proposed it upon realising that they lost time. They wanted to use it during easter holidays. Relief sought is reinstatement.
  3. Ms Shirley Mkhithika [ “ Mkhithika”] testified as follows: She was not at work when the appointment letters were issued. During the disciplinary hearing it was discussed that she was never issued with an appointment letter together with Mr Binase.
  4. Mr Siyabonga Khumalo [ “ Khumalo”] testified as follows: He was in the employment of the Respondent, post level 1 lecturer. Bundle B page 1-2, state of the campus, catch up plan. It was his evidence that they proposed a catch up plan upon realising that the time was consumed by the registration process. The delay took a period of a month. They requested a catch up plan, but it was refused by the management. He also differentiated between the catch up plan and recovery plan. In relation to charge 1, he mentioned that he did not take the appointment because the matter was still sub iudice. On charge 4, he mentioned he had no tools of trade. For the period of June and December 2022 he did not invigilate. The January 2023 supplementary exams he did not invigilate. Bundle B page 7 was read on record. He mentioned only 8 employees were disciplined other lecturers- 7 lecturers were not disciplined, they were still working at the college, He mentioned that it was incorrect that they were not working they worked. The relief sought is reinstatement.
  5. Ms Zimkhitha Mabentsela [ “Mabentsela” ] testified that she was post level 1 lecturer since 2013 for NCV programme. Page 6-7 was read on record. She mentioned that she knew all the Applicants, they were all members of NEHAWU. They all took decisions not to invigilate. With the letters of suspension, she mentioned that they were called in Malusi’s office and when they were at the office, they were told they were not needed.
  6. Ms Nonkululeko Mpehla [ “ Mpehla”] testified as follows: She was in the employment of the Respondent since 2009. Bundle A pg. 6-7 read on record. She mentioned that she did not invigilate and she was not disciplined. The Applicants were known to her, they were colleagues.

ANALYSIS OF EVIDENCE AND ARGUMENT

20. In this case, the existence of the dismissal is common cause, therefore the Respondent must prove that the dismissal of the Applicants was fair. It is trite that the employer bears an onus to justify the fairness of the dismissal once the existence thereof has been proven by the employee. In terms of Section 188 of the LRA the employer must prove that the dismissal was for a fair reason based on the employee’s conduct, capacity or employer’s operational requirements and that it was executed through a fair procedure.

21. Procedural Fairness: At the commencement of the proceedings, the Applicants’ representative placed on record that procedural fairness was challenged.

22. In determining the fairness of dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal Schedule 8, item 4 deals with Fair Procedure. And also to take into consideration the principle laid down in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644 (LC);(2006) 9 BLLR 833 (LC). It was held that the employer was merely required to conduct the investigation, give an 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.

23. On procedural fairness the Respondent led the evidence of Chiloane. He was the chairperson of the disciplinary hearing. I must say there was no point of biasness that was made with this witness as the Applicants alleged that he was biased towards the Respondent. On cross-examination by Mr Zweni, he denied that he chased Mr Zweni, the Applicants were represented by Mr Mrwetyana. He mentioned that he informed Mr Zweni that the matter was partly heard and was not going to start afresh but will give him time to familiarize himself with the case. His version was not disputed by Mr Zweni. He maintained that the Applicants were afforded a fair hearing. Before the Council there is no evidence from the Applicants that they were denied a fair hearing by the Respondent. The Applicants failed to substantiate their claim of biasness. I am in no position to conclude that the dismissal of the Applicants was procedurally unfair without evidence pointing to that direction. Based on what I have highlighted above, I find that the dismissal of the Applicants was procedurally fair.

24. Substantive Fairness: In determining the fairness of the dismissal, the law requires me to consider the Code of Good Conduct and the CCMA Guidelines on Misconduct Dismissals. Further, in terms of the Constitutional Court judgment in Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC), it was held that the Commissioner must consider all relevant circumstances when considering whether dismissal was an appropriate sanction in a particular case of proven misconduct. This includes the importance of the rule that has been breached, the reason the employer imposed a sanction of dismissal, basis of the employee’s challenge of the dismissal. The other factors such as harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record.

25. It is worth mentioning that “an arbitration is a new hearing, which means that the evidence concerning the reasons for the dismissal is heard afresh before the arbitrator. The arbitrator must determine whether the dismissal is fair in the light of the evidence admitted at the arbitration.” [CCMA GUIDELINES ON MISCONDUCT AND ARBITRATION-17 NATURE OF ARBITRATION].

26. The Respondent, in trying to prove its case led evidence of four witnesses. Their evidence has been summarized above, and it will not be repeated. I will highlight a few things about their evidence. As mentioned above the Applicants were dismissed for acts of misconduct.

27. The Applicants plead inconsistency and harshness of sanction. It is worth mentioning that the Applicants do not deny the allegations against them, however they have furnished reasons. I will deal with the reasons furnished by the Applicants and the version of the Respondent.

28. It is worth mentioning that all the witnesses called by the Respondent corroborated one another. Their evidence was clear it was very easy to follow. Potelwa, Mayekiso and Magwaca placed all the Applicants on scene in relation to charge 1, 2 and 4. They maintained that the Applicants wanted the school ungovernable. They were sitting under the tree. They were not offering teaching and learning to the students.

29. On the issue of inconsistent application of the rule. It is worth noting that the Applicants believe that the Respondent treated them unfairly, they were subjected to discipline whilst the other 7 lecturers were not disciplined. It was the evidence of Potelwa that for the misconduct of 2022 no employee was disciplined. He mentioned that the Applicants continued with their attitude in 2023. The other 7 lecturers who did not collect the appointment letters and invigilate in 2022, were not part of the Applicants in 2023, they offered teaching and learning to the students. They completed the syllabus. Unfortunately for the Applicants they did not offer teaching and learning to the students. The legal principles applicable to the consistency in the exercise of discipline are set in item 7 (b) (iii) Code of Good Practice: Dismissal & item 77.2.3 of CCMA Guidelines on Misconduct Arbitration. It is often referred to as the parity principle. Like cases to be treated alike.[ Case Law for Commissioners page 518 para 20.1] The Applicants have misplaced their argument to ague inconsistency. The seven lecturers were not disciplined. In 2023 they were not part of them, fortunately Mabentsela and Mpehla testified in the proceedings called by the Applicants. It was their evidence that in 2023 they offered teaching and learning to the students. They even participated in the supplementary exams for NCV. Before me there is no evidence of the 7 lecturers failing to complete the syllabus in 2023. The other lecturers that the Applicants compared themselves with were not charged. The Applicants failed to make the case with inconsistent application of the rule.

30. Harshness of sanction, the Respondent led evidence of Chiloane and his evidence is on record, I will not repeat it except to mention that he maintained that in arriving at his decision he was guided by the evidence presented before him and the seriousness of the charges. The evidence of the Respondent against the Applicants was overwhelming. Both Potelwa and Mayekiso mentioned that the Applicants were sitting under the trees. They did not offer teaching and learning to students. This version was not disputed by the Applicants. Magwaca and Mkhithika mentioned that the Applicants were on go slow. It is clear when one is sitting under the tree, that person is not performing his or her duties. It is also clear that one is on go slow, that person is not performing his or her duties to the best of his / her abilities. All these acts justify why the Applicants could not complete the syllabus. I reject the explanation by Sijadu, Khumalo and Myataza that they did not conclude the syllabus due to the NEHAWU strike, community unrest and delays on the registration because other lecturers were able to conclude the syllabus, they were able to offer learning and teaching to students. All 23 lecturers of Idutywa campus were affected by the same issues but the Applicants chose differently and other lecturers chose differently because they wanted to see the students succeeding and progressing. The other lecturers allowed themselves to be inconvenienced by the whole situation that was taking place at Idutywa campus. They prioritized the interests of the learners.

31. I do accept that there were challenges within the institution that needed to be addressed and resolved between the Applicants and the school management. However that did not have to be done at the expense of the students and children. The conduct of the Applicants towards the students was a violation of their Constitutional rights section 28 and 29 Act 108 of 1996. The college offers NCV= National Certificate Vocational. Students who are doing NCV programs are below 18 years of age. Section 28 (2) of the Constitution provides that “ A child’s best interests are of paramount importance in every matter concerning the child”.

32. When faced with two conflicting versions, I am called upon to determine whether the party burdened with the onus of proof has succeeded in discharging it. In dismissal matters, it is trite law that the employer bears the overall onus of proving that the dismissal was procedural and substantively fair. This principle was adopted in NUMSA and another v Tokiso Dispute Settlement and others (JR 2049/09) [2014] ZALCJHB 237.

33. The task of imposing sanctions vests in the Employer. The function of the Commissioner is to assess whether the Employer has exercised its discretion fairly. The sanction of dismissal was appropriate under the circumstances as the misconduct was of a very serious nature and had rendered the employment relationship intolerable.

34. In considering the totality of circumstances, the Respondent managed to discharge the onus placed on it in terms of section 192[2] of the LRA for the reasons I have highlighted above, to show that the dismissal of the Applicants was substantively fair and the following award is made:

AWARD

35. The dismissal of the Applicants, Simphiwe Sijadu, Siyabonga Khumalo, Shirley Mkhithika, Zuko Poswa, Luvuyo Siba, Ayanda Binase and Daluxolo Myathaza, by the Respondent, the King Hintsa TVET College, was procedurally and substantively fair.

36. The Applicants are not entitled to any relief.


Signature :


Commissioner : Siziwe Gcayi