IN THE EDUCATION LABOUR LABOUR RELATIONS COUNCILS
Case No: ELRC636-24/25GP

In the arbitration proceedings between:
MPHO SYDWELL TSHAMANO (Applicant)

And

DEPARTMENT OF HIGHER EDUCATION & TRAINING (WESTCOL TVET COLLEGE) (Respondent)

PANELIST:
Ntjatja Klaas Aphane
HEARD:
09 DECEMBER 2024, 21 &22 January 2025, 24 February 2025
DELIVERED:

 24 March 2025 



 ARBITRATION AWARD   

Applicant’s representative : Bongane Qankase (PSA Official) Mpho Sydwell Tshamano
Respondent’s representative: Nkateko Shadrack Zitha (Labour Relations Manager)

DETAILS OF THE HEARING AND REPRESENTATION

1. This is the arbitration award in the arbitration proceedings concerning an alleged unfair dismissal related to misconduct dispute between, Mpho Sydwell Tshamana, the Applicant and the Department of Higher Education and Training (Westcol TVET College).
2. The dispute was referred to the ELRC in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 (the LRA).
3. The dismissal arbitration dispute was scheduled and on 09 December 2024, 21 & 22 January 2025 and 24 February 2025. The arbitration proceedings were held under the auspices of the ELRC in terms of section 191 (5)(a) of the LRA. The arbitration proceeding was held in persons at Westcol TVET College, Randfontein.
4. The Applicant appeared in person, and was represented by his trade union, PSA official, Bongane Qankase, whilst the Respondent was present and represented by its employee, Nkateko Shadrack Zitha, Labour Relations Manager.
5. The arbitration award is issued in terms of section 138 (7) of the LRA.
6. The arbitration proceedings were digitally recorded and handwritten notes were taken.
7. The relief sought by the Applicant was retrospective reinstatement

THE ISSUES TO BE DECIDED:

8. I am required to determine whether the dismissal of the Applicant was substantively and procedurally fair or not. If not fair, I must determine the appropriate relief.
9. I am also required to determine if the dismissal referral dispute was premature or not, given the outstanding internal appeal against the sanction of dismissal. THE BACKGROUND TO THE DISPUTE:
10. The Applicant started his employment relationship with the Respondent on 23 February 2011. He was employed as a lecture and he was earning a basic monthly salary of R30 273,00.
11. The Applicant’s employment relationship with the Respondent terminated on 03 October 2024, consequent to an internal disciplinary hearing. The Applicant submitted an appeal outside the prescribed period and submitted an application for condonation of late referral of an internal appeal against the outcome of the disciplinary processes. The outcome of the condonation application of the appeal process was still outstanding on the date of the arbitration process.
12. The Applicant referred the alleged unfair dismissal related to misconduct dispute to the ELRC. The dispute was unresolved through conciliation process and the dispute was then scheduled for arbitration process on 09 December 2024.
13. The arbitration was scheduled on 09 December 2024, 21 & 22 January 2025 and 24 February 2025. The arbitration proceedings were held under the auspices of the ELRC in terms of section 191 (5)(a) of the LRA.
14. The Applicant’s dismissal was not in dispute, as both the Applicant’s representative and the Respondent’s representative conceded that the Applicant was dismissed, and it was dismissal for misconduct.
15. The Respondent’s representative called four (4) witness (Mthokosize Amon Maseko, Tebogo Moloto, Phathutshedzo Tshegofatso Ndou, Sydwell Mpho Kgoete) whilst the Applicant’s representative called the Applicant to testify in support of his case (Mpho Sydwell Tshamano).
16. The Respondent’s representative submitted a bundle of documents, bundle, “R”, consisting of pages R1, R2, R3, R4 and R5. R1 was consisting of pages 1 to 23, R2 was consisting of pages 1 to 79, R3 was consisting of pages 1 to 15, R4 was consisting of pages 1 to 4 and R5 was consisting of pages 1 to 52 whilst the Applicant’s trade union representative submitted bundle of documents, bundle, “A”, consisting of pages 1 to 66.
17. The procedure and substantive fairness was in dispute.
18. The Applicant’s representative and the Respondent’s representative pleaded to submit written closing arguments on 07 March 2025, and cited several reasons to justify the deviation from the norm of seven (7) days. It was agreed that both parties should submit written closing arguments on 07 March 2025.
19. The Applicant was represented by an official of his trade union, PSA, so I adopted an adversarial approach to the arbitration process in order to determine the merits of the dispute fairly.
20. The relief sought by the Applicant was retrospective reinstatement.

PRELIMINARY ISSUES:

21. The Respondents representative submitted that the dispute was referred prematurely as the Applicant submitted an internal appeal outside the prescribed period and the appeal authority was still considering the appeal.

SURVEY OF EVIDENCE:

22. I wish to state from the onset, that not all the evidence presented will be set out hereunder. Only a summary of the relevant evidence is contained herein.

THE RESPONDENT’S CASE:

23. The first witness for the Respondent was Mthokozile Amon Maseko, who testified under oath that, he is an employee of the Respondent and was employed as senior Labour Relations Officer, with sole responsibilities of effective disciplinary processes, training, grievances process and dispute resolution.
24. He knows the Applicant as PL1 Lecture at Westcol TVET College. He was involved in the disciplinary process of the Applicant from inception until termination of services, he was involved in the investigation process, ensuring policies and procedures were followed in charging the Applicant, and subjecting the Applicant to a disciplinary process, communicating the outcome of the disciplinary process to the Applicant and assisting the Applicant with the necessary documentation for appeal processes. He investigated the incidences of the Westcol College that occurred during August 2023.
25. It was reported that the students were protesting at the college alleging that some students whose parents were part of the management at the College were getting preferential treatments at the College. That infuriated the students who encircled one student, shouting at her and directing verbal abuse at her. That student was Phathutshedzo Tshegofatso Ndou, and her father was a lecture and part of management at the College (HOD). Even though it was alleged that there was another student as well related to another lecture, Maria Mary Meetse Thuputlela, one of the HOD, receiving preferential treatment, to be precise the niece of Thuputlela.
26. The main course of the discomfort of students at the College was that the student, Phathutshedzo Tshegofatso Ndou, was irregularly registered for ODP level 2 and 3 at the same time without passing ODP level 2 and without qualifying for supplementary examination for ODP Level 2. It was also alleged that she did not pay course fee of ODP Level 2 as required.
27. During the uncertainties, hurling accusations and abuse by mob of students towards the student, PT Ndou, the Applicant approached them with a piece of paper and demanded that PT Ndou wrote her details on that paper, that was during the discomfort but did not separate the students or request them to calm down but requested PT Ndou, to write her personal details on a piece of paper, and she complied and wrote her details (A9) and she complied. The Applicant got the academic record printed but did not return to PT Ndou and to the group of students encircling PT Ndou, shouting at her and verbally abusing her.
28. It is unknown who shared or distributed the academic records of the student, PT Ndou, to other students of the Westcol College. The investigation report has established that the Applicant got printout of the academic records but it is unknown what happened to the copy of such academic records.
29. All parties involved, lectures, administrative staff and students that were involved on the incidence of 21 August 2023, gave statements except the Applicant, who was unwilling to co-operate without any reasons advanced. He did not report the incidence of the 21 August 2023 to the management team of the College. The Respondent send letter to the Applicant and he ignore or failed to respond and provide his version.
30. The Applicant did not have any business in requesting details from PT Ndou and demanding her academic record on 21 August 2023. The entire management team of the College were attending strategic but there was a senior lecture, Enock Mukwindidza, who was in charge in the absence of the management team. The Applicant was supposed to report to Enock Mukwindidza as the senior lecture in charge.
31. It was discovered that indeed the student, PT Ndou, was registered for both ODP level 2 and 3 on instruction of MMM Thupatlela, another HOD and not her father. MMM Thupatlela was the relevant HOD. Equally wrongful accusations that the niece of MMM Thupatlela was registered irregularly was found to be unfounded and without merits, and she was exonerated on allegation in relations to her niece. The course fee of ODP level 2 for PT Ndou was paid for by her parents
32. MMM Thupatlela was subjected to a disciplinary process and the official that processed the enrolment of ODP Level 2 of PT Ndou, Mr Ngcaku was subjected to corrective disciplinary action. Mr Ndou, the HOD, Lecture was subjected to an ongoing disciplinary process but not yet finalised. MMM Thupatlela pleaded guilty for authorising the enrolment of both level 2 and 3 ODP for the student, PT Ndou.
33. Other lectures and administrative staff were not aware of the students’ protest and their classes were not interrupted until EFF intervention and students and EFF members barricaded entrance to the Westcol College. The class that was interrupted was the Applicant class.
34. All employees, lectures and other staff members were trained or attended training on POPIA. The Applicant was shop steward of the trade union, PSA, and is reasonable expected to know and ought to have attended the POPIA training. Organiser Kirileng Motsotsi told the Applicant of the requirements of POPIA before printing the academic records of the student, PT Ndou. (Page 17 of R2). The Applicant’s explanation was that he needed to assist the student but could not elaborate how and with what.
35. The motive of the Applicant was questionable as the incident of encircling, howling and verbal abuse of the student; PT Ndou, occurred on 21 August 2023 but the Applicant only advise the father of the student of her daughters’ challenges on 22 August 2023, in the morning. The Applicant suggested that the student should not report or attend classes on 22 August 2023.
36. The Applicant was placed on precautionary suspension and his trade union, PSA was engaged accordingly because the Applicant was a shop steward.
37. The Applicant was served with the notice to attend the disciplinary hearing, charges and his rights on 07 November 2023, though he refused to sign acknowledgement of receipts. He was served and Zelda Jood witness the serving of the Applicant. The disciplinary hearing was scheduled for the 15 November 2023.
38. The Applicant was charged with misconduct as follows: –
    a. It is alleged that on or about 21 August 2023, you retrieved the personal information (Academic History of Ms PT Ndou without neither her consent nor that of her parents. Such retrieval was not for the operations of the college (Responsible party) and therefore, your action contravened the provisions of the Protection of Personal Information (POPIA).
39. All applicable collective agreements and the labour legislative framework were followed and applied in the disciplinary process of the Applicant to ensure fairness. In particular clause 7.3 of the PSCBC, Collective Agreement Resolution 1 of 2003 read with clause 8 (B-D) of the ELRC Collective Agreement 1 of 2013, which is more relevant and applicable to the Applicant, as a lecture.
40. To be precise, ELRC Collective Agreement 1 of 2013, clause 7 and 8, conducting the disciplinary hearing, 7.2 thereof provided that the presiding officer of the disciplinary process must be appointed by the employer. The presiding officer, Tebogo Moloto was appointed by the employer of the Applicant to preside over the Applicant disciplinary hearing. There was nothing untoward when Tebogo Moloto, a CCMA Commissioner was appointed to preside over the Applicant’s disciplinary hearing.
41. The Department of Higher Education and Training, Code of Conduct, Employee’s Code of Conduct, more specifically clause 3.2.1 enjoins the lectures and the Applicant to respects the dignity, beliefs and the Constitutional rights to privacy and confidentiality of students inclusive of student, PT Ndou and the Applicant by getting the ID Number of the student in front of an angry students to access her entire academic records violated the privacy of PT Ndou.
42. During cross examination, it was put to the witness that the Delegations of Authority of the Department of Higher Education and Training delegated the presiding officer’s role to the Principal of the College but the witness was firm that all Collective Agreement of the ELRC and PSCBC must prevail as there is nothing procedurally unfair if the disciplinary process was chaired by an outsider of the Department of Higher Education and Training.
43. The second witness for the Respondent Tebogo Moloto, whose testimony was that he is Commissioner of the CCMA and some Bargaining Council and was appointed to preside over the disciplinary hearing of the Applicant. He was served with a letter appointing him to preside over the disciplinary case.
44. His brief, was to preside over the disciplinary hearing, ensure fairness of the process, considers all facts presented and ensure strict adherent to schedule 8 of the LRA, and consider all prescripts and Collective Agreements of the ELRC and any relevant labour legislative framework.
45. He assessed the evidence presented, and pronounced the verdict and later sanction after aggravation and mitigation. He communicated the sanction to all parties, through the offices of Labour Relations. The Applicant was advised to appeal within the prescribed period on prescribed form, as well as to refer the dispute to the relevant dispute resolution forum.
46. Some of the key considerations for his sanction, was that the Applicant failed to acknowledge and appreciates the gravity of his misconduct, its impact on the students and the College and possible harm and damages to property during the students’ protest. There was no remorse on the Applicant. The student, PT Ndou, was under attack and her life threatened.
47. The Applicant was not a teacher of the student, and therefore no business or operational need to access her full academic record.
48. The third witness for the Respondent was Phathutshedzo Tshegofatso Ndou, the student, who testifies under oath, that she was a student at Westcol College.
49. She was at campus on 21 August 2023, after break there was commotion at the campus caused by students complaining that she was doing ODP Level 3 without passing ODP Level 2. Some group of students came and joined to be a large group, shouting and howling at her next to Student Support Services, they were all talking unorderly at the same time without giving each other chances.
50. The Applicant came with a blue pen and paper and instructed her to write her ID Number and her full names. She did not give the Applicant authorisation to access her academic records. The Applicant did not explain why her personal details was required. She complied and provided information without knowing the purposes because the angry and howling students encircled her.
51. Rumours started doing rounds that she was registered irregularly and lot of students came out of their classes and encircled her. After the students were pacified by some senior lectures, one NATED lecture, Ms Dube called her and advised to go home for safety home.
52. The following day, 22 August 2023, she attended classes and other students comforted her and she was told that she was not the only students that was registered irregularly.
53. Indeed, she failed ODP Level 2 in 2022 and she registered for ODP Level 2 IN 2023. She wrote supplementary examination for ODP Level 2 in 2023
54. The fourth witness for the Respondent was Mpho Sydney Kgoete, who testified under oath that he was an employee of the Respondent, employed as a campus manager for Westcol College, Krugersdorp central. He knows the Applicant who was a lecture at the campus. He was a PL1 with no subordinates but reporting to senior lectures, PL2.
55. The Applicant had no business interfering or addressing students concerns whilst senior lectures with mandates were at the campus to attend to matters of this nature. Equally, the Applicant was not a lecture of the student, PT Ndou, and therefore there was no operational necessities of sourcing the printing of the student academic record.
56. He requested the Applicant to provide his version but the Applicant failed to do so within the cut-off date. On 28 August 2023, he sent his reports to his superiors without the Applicant’s version because he was not responding only to revert back to him on 01 September 2023, (A10)
57. There were areas of concerns on the version of the Applicant; firstly, it was not within his mandate to defuse the situation at the campus because that was the responsibilities of Enock Mukwindidza and other senior lectures. He was not entitled to request print out of the student academic record but rather to check if the student wrote supplementary examination and there was no operational need to access the student academic record. It was also strange as to how was the Applicant trying to help the student because he left the same student in the group of angry students howling her and failed to report the incidence to his senior lectures. The Applicant flouted the constitutional right of the learner and POPIA by accessing the academic record of the student with her consent and without legitimate business or operational interests.
58. On 21 August 2023, he was not at the campus but was attending strategic planning with some senior manager and some of his management team. Whilst attending strategic meeting session, he was alerted of strike or protest action by the students at the campus by student support services, Xoli. To be precise the SRC was instigating strike at the campus and they needed help urgently.
59. He instructed and pleaded with Enock Mukwindidza, the senior lecture and was in charge of the campus in the absence of management team, to meet with the SRC and do prognosis of the student’s grievances and the cause of the student strike.
60. It was reported to him that the students were going after one student, PT Ndou, the daughter of one the lecture and member of the management team. The gripe was that she failed ODP Level 2 in 2022 but was registered for both ODP level 2 and 3 during the academic year 2023.
61. The meeting was arranged with SRC but the management team were shocked when few SRC members attended and lot of EFF members hijacked the meeting, with EFF member, Tebogo Moloi, not student and not SRC member. They requested EFF to recuse themselves and the meeting was adjourned.
62. On 25 August 2023, the EFF member barricaded the entrance to campus and the lectures and students and teaching was disrupted. The public order police officer was called to disperse members of the EFF that burned tyres and barricaded entrance to the campus.
63. There were wrong doing by some lectures and staff members, e.g. MMM Thupatlela was not supposed to authorised the student PT Ndou to enrol for ODP Level 2 & 3 simultaneously during the academic year, 2023, she flouted Examination Instruction 1 of 2015. The staff member that printed the academic record of the student, PT Ndou, was discipline as well. Mr Ndou, the HOD was also subjected to ongoing disciplinary corrective actions for other infringements.
64. The Applicant cannot be trusted to work with confidential students’ information. He cannot produce the academic record of the student that was printed for him, and that information landed in wrong hands. The trust relationship is broken beyond repairs and the Applicant is not remorseful and therefore cannot be rehabilitated. THE APPLICANT’S CASE:
65. The Applicant was the only witness to testify in support of his case. He testified under oath that he was an employee of the Respondent, employed as a lecture for NCV, national curriculum vocational, i.e. a program of learners that did not pass matric, at Westcol College at Krugersdorp.
66. He referred the dispute to the ELRC after the Department of Higher Education and Training dismissed him unfairly. The dismissal was orchestrated by the report on A12 to A13.
67. He appealed against the verdict and the sanction and, Jessica, acknowledge receipt of his condonation application for appeal submitted after the cut-off date. To date, no outcome of appeal or condonation application for late appeal was communicated to him.
68. The Delegated of Authority of the Department of Higher Education and Training delegated the disciplinary process, presiding and communicating the outcome of the disciplinary process on the principal and therefore the presiding officer was not a delegated official and therefore the disciplinary hearing flouted the rules, policies and regulations of the Department.
69. He was a shop steward at the workplace and the practices has been that they will await the termination letter from the principal before submitting an appeal and in this regard, he did not receive the termination letter from the principal. Therefore, this renders his dismissal procedurally flawed and unfair.
70. The SRC and other students demanded that his dismissed his class students as students’ needs to address some concerns affecting students. Some students left the class immediately after the address by the SRC in his class. He then saw group of students with PT Ndou outside the class, the group of students were shouting and howling at PT Ndou. He stood there to check and observe what was happening with that group of students. He discovered that gripe of the students, the student, PT Ndou, was registered for ODP Level 3 despite the fact that she did not pass ODP Level 2
71. The learner, TP Ndou, indicated that she wrote ODP Level 2 supplementary examination and she passed. He then volunteered to go and check with the examination office if indeed PT Ndou passed the ODP Level 2 supplementary examination and left her with that group of angry howling students.
72. He went to request the details of PT Ndou, ID number and full names and provided the details to Organiser Kerileng Motsosi, who printed the academic record of the student, PT Ndou. He was told by Organiser Kerileng Motsosi that the learner, PT Ndou, did not qualify for supplementary examination as her marks were either 45% or below and therefore did not write supplementary examination.
73. He then destroyed the academic records of the student, PT Ndou, upon realizing that she did not write supplementary examination. He did not go back to give the angry and howling students’ feedback but left the situation as it is. The reason he took the student personal details was to verify if she wrote supplementary examination, and he told her so and the student did not resist or hesitates to give him her personal details, full names and ID Number.
74. He was so convinced that if the student, PT Ndou, was honest, that she wrote supplementary examination and pass ODP Level 2, that would diffuse the situation of angry and howling group of students. He was never suspended and was made aware of the allegations against him when he was requested to give his version of events of 21 August 2023.
75. He communicated with the father through WhatsApp, sensitizing of the danger of allowing PT Ndou to report to school on 22 August 2023. Such WhatsApp communication is on A9.1. That demonstrated his bona fide in carrying about PT Ndou, the student.
76. It was time for ISAT, Integrated Subject Analysis Time, allows lectures to access students information, so he did not need permission to source such information.
77. The relationship is not broken as he worked until he was dismissed from his employment, therefore, he can still be trusted if reinstated. The student, PT Ndou lied to him that she wrote supplementary examination for ODP Level 2 and passed whereas she did not qualify for supplementary examination.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

78. In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedure, and the Code of Good Practice: Dismissal (the Code) of the LRA and relevant case law.
79. Everyone has the right to a fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. This right is well entrenched by section 185 of the LRA, which provide the right not to be unfairly dismissed or subjected to unfair labour practices.
80. In the case of Sidumo and another v Rustenburg Platinum Mines (Pty) Ltd and others (2007) 28 ILJ 2405 (CC) 2007) 12 BLLR 1907 (CC), the court held that, “one of the primary objects of the LRA is to give effect to and to regulate the fundamental rights conferred by section 23 of the Constitution, including the right to fair labour practices enshrined in section 23(1).
81. Section 188 of the LRA provides that an employee’s dismissal will be unfair if the employer fails to prove that the dismissal was for a fair reason and that it was effected in accordance with a fair procedure.
82. In terms of section 192 of the LRA, the employee must prove that he was dismissed and the employer then bears the onus to prove that the dismissal was fair.
83. The dismissal of the Applicant was not in dispute; both the Respondent’s representative and the Applicant’s representative confirmed that the Applicant was dismissed.
84. Procedural fairness and substantive fairness was in dispute.
85. An arbitration process is a new (de novo) hearing, which means that the evidence concerning the reason of the Respondent’s decisions (which is challenged or in dispute) is heard afresh. That means I must determine the fairness of the Respondent’s decision on the evidence admitted and submissions made at the arbitration.
86. The Applicant was charged with one counts of misconduct in that, on or about 21 August 2023, you retrieved the personal information (academic history) of PT Ndou without neither her consent nor that of her parents. Such retrieval was not for the operations of the college (responsible party) and therefore, your action contravened the provisions of Protection of Personal Information Act.
87. The evidence of the Respondent’s witnesses painted a picture of the campus under siege through students’ dissatisfactions, which attracted some political party, in particular EFF, resulting in the academic period disrupted, entrance to the campus barricaded with burning tyres.
88. The sources of discontent by the students were believes that two students related to two lectures were receiving preferential treatment, were registered irregularly and the registration fees was not paid for ODP level 2. Though the other student was absolved and registration fee was not true, the issue of ODP Level was true, that was PT Ndou.
89. The Applicant obtained the student personal details, names and ID number, in front of angry and howling group students, no explanation given to the student, except instructed to write her details. Her academic records sourced without any legitimate business interests by the Applicants. In this regards the Respondents witnesses were highly credible, consistent and their version highly corroborated by both documents and the witnesses and the Applicant himself.
90. The Applicant on the other hand provided evidence riddled with so much inconsistencies, deceptions and mere denial of wrongdoing. The Applicant found the student surrounded by angry and howling group of students but failed to separate the howling group and the student under siege. How does one defuse the situation by leaving under siege student with group of angry and howling students? The Applicant testified that he was told by Organiser Kerileng Motsisi that the student did not qualify for supplementary examination because she obtained 45%, why continued to demand printing of her full academic record? The Applicant despite witnessing such volatile protest and howling of the student, failed to report the incidence to management team, saves to say he provided his statement on 01 September 2023.
91. To warn the father of the student, of the volatile situations of 21 August 2023, on 22 August 2023, at 07:23, without checking the howled student on 21 August 2023, was quite disingenuous and clever by half after thoughts tactic to hide his mala fide. It is unbelievable and impractical to demand personal information with so much haste from the student, after print out of the academic record, to destroy such academic record.
92. All actions of the Applicant violated the Constitutionally entrenched rights of the student, PT Ndou, without legitimate business interests. Why was it necessary for the Applicant to suggest it was ISAT time, where lectures can access subject’s information whilst fully aware, as he testified so himself, that he needed to verify if the student was telling the truth about supplementary examination of ODP Level 2. There was no need for the Applicant to continue this deception.
93. It is also strange that not all other lectures at the campus experienced these strange disruptions. The SRC started in his class, he is the only actively involved, whilst the likes of Enock Mukwindidza, despite being senior lectures and care taker manager, were alerted when disruptions were in full swings.
94. The conduct of the Applicant was indeed, without any fear of contradictions, improper, disgraceful, unacceptable, unprofessional and highly irregular of a lecture, who should know better, more so as a shop steward, who used to represent his colleagues in disciplinary process. He is a leader as a shop steward but failed to demonstrate humane leadership, left overly exposed student with angry and howling group of students.
95. The Applicant submitted that the disciplinary process was concocted to get rid of him, but there is no shred of evidence to suggest that any person needed him out of the system, inclusive of all witnesses of the Respondent. The Applicant also failed to co-operate with the campus manager and the unit of Labour Relations when his version was requested. How does he intend to rebuild such relationship, the relationship he was deliberately and passionately destroying with my way or the highway attitude?
96. The Labour Appeal Court in De Beer Consolidated Mines v CCMA (2000) 9 BLLR 995 (LAC), the Court held that, “acknowledgement of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he / she has broken”.
97. In National Union of Mineworkers of South Africa obo Nganezi & others v Dunlop Mixing and technical services (Pty) limited & others (2019) 40 ILJ 1957 (CC) para 624, the Court held that the employment relationship is grounded on the fundamental values of trust, confidence, reliability, loyalty, mutual respect, and good faith. Consequently, these fundamental values form the heart of the employment relationship which ought to be exercised by both the employee and the employer at all material times during the subsistence of their relationship.
98. It is clear all of the above values were diminished by the attitude of the Applicant.
99. In terms of item 4 (1) of the Code of Good Practice on Dismissal (the Code), the employer should notify the employee of the allegations using a form and a language that the employee can reasonable understand, and the employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken and preferably furnish the employee with written notification of that decision.
100. The Applicant was charged and served with charge sheet, served with notice to attended a disciplinary meeting, he participated in the disciplinary hearing, he was represented by an official of PSA, he was given a verdict, allowed mitigation and appeal, he was notified of the sanction and outcome of the appeal and advised to refer the dispute to the ELRC.
101. Both the PSCBC, Collective Agreement 1 of 2003, read with ELRC Collective Agreement 1 of 2023, read purposefully with the Delegation of Authority of the Department of Higher Education and Training makes provision for appointment of a presiding officer, who does not necessarily be a Principal, therefore there was no procedurally irregularities.
102. Therefore, the dismissal of the Applicant did comply with item 4(1) of the Code of Good Practice on Dismissal. The dismissal was procedurally unfair.
103. Equally, in terms of item 7 of the Code of Good Practice on Dismissal (the Code), the following must be consider in determining the fairness of the dismissal, whether the employee contravened the rule, if the rule was valid or reasonable, if the employee was aware of the rule or is reasonable expected to be aware of the rule, the rule is consistently applied by the employer and if dismissal is the appropriate sanction for breached of such a rule.
104. In Woolworths (Pty) Ltd v SACCAWU and others (JA 56/2016) (2017) ZALAC 54, the court laid down steps for an inquiry into a breach of a rule and held that in cases of a breach, the Commissioner must consider, whether there was a rule breached, the nature and importance of the rule breached, whether the employee had knowledge of the rule or was expected to have such knowledge, whether the rule had been consistently applied and whether dismissal was an appropriate sanction.
105. Based on the totality of evidence, and submissions at the arbitration processes, the Respondent cannot be faulted for terminating the employment of the Applicant.
106. Trust relationship, cornerstone of the employment relationship is broken beyond doubt as management and the Applicant lost confidence of each other. The Applicant does not trust the Respondent as he accused the Respondent of colluding to get rid of him. The Respondent does not trust the Applicant and the Respondent must protect students and the image of the campus from violating protected privacy and confidentiality.
107. In Tseane v Get Ahead Foundation (1995) 16 ILJ 202 (IC), the Court held that an employee owes an employer a duty to always promote its business interests and act in its interest. A breach of this duty by an employee entitles an employer to dismiss him.
108. In the Publication, Principles pf Practice Labour Law, issue 7, (2005) paragraph 245, it is held that, “When rendering services, the employee must ensure that his services are executed in good faith and that they in no destruct from the relationship of trust”.
109. In Department of Labour v GPSSBC (2010) 231 ILJ 1313 (LAC), the Labour Appeal Court confirmed the principle that a sanction aimed at correction and rehabilitation is of no purpose when an employee refuses to acknowledge the wrongfulness of his / her conduct.
110. It goes without saying that the Applicant does not appreciate the wrongfulness of his conduct, and its impact on traumatized student and colleagues.
111. This misconduct was of a serious nature and warrants the Respondent losing trust and confidence in the Applicant, more so that the Applicant was employed in a position of trust to build capacity in the educational sector.
112. The Respondent has discharged the onus to prove the existence of good reasons for the dismissal of the Applicant and therefore cannot be faulted on substantive fairness. The conduct of the Applicant was costly in terms of national capacity building framework, undermined the educational sector and dehumanize and humiliated the targeted student.
113. Therefore, the Respondent cannot be faulted for dismissal on substantive fairness and procedural fairness.
114. The relief sought by the Applicant was retrospective reinstatement. The Applicant is not entitled to any reinstatement as relief sought for the alleged unfair dismissal. The relationship between the Respondent and the Applicant is beyond repair, based on the totality of evidence presented.
115. In the premises I make the following award:

Award

116. The Applicant, Mpho Sydwell Tshamano’s, dismissal by the Respondent, Department of Higher Education and Training (Westcol TVET College), was procedurally and substantively fair.
117. The Application is dismissed.
118. There is no order as to costs.

Thus, done and signed at Pretoria, dated 24 March 2025.