IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT VUSELELA TVET COLLEGE (POTCHEFSTROOM CAMPUS)

Case No ELRC 902-22/23NW

In the matter between

JACQUES VOSLOO APPLICANT

and

DEPT. OF HIGHER EDUCATION & TRAINING (VUSELELA TVET COLLEGE) RESPONDENT

ARBITRATOR: Monde Boyce

HEARD: 25 February 2025

CLOSING ARGUMENTS: 06 March 2025

DATE OF AWARD: 24 March 2025

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION: 

[1] The ELRC set the matter down for arbitration on 25 February 2025 at the Vuselela TVET College in Potchefstroom. Both parties attended the process and were represented. Mr Co while Mr Kgotso Sechoaro, the Senior Labour Relations Officer, represented the respondent.

[2] Both parties submitted bundles of documents. There was no request for an interpreter and proceedings were held in English. The proceedings were digitally recorded, and typed notes were taken. At the conclusion of the process, parties requested to submit written closing arguments, and I duly granted the request. Both parties submitted the written closing arguments to the Council on 06 March 2025.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the applicant’s dismissal was procedurally and substantively unfair and I am called upon to grant the appropriate remedy in terms of Section 193 or 194 of the Labour Relations Act 66 of 1995 as amended (the LRA) should I find the dismissal to be unfair.

THE BACKGROUND TO THE DISPUTE:

[4] The applicant is Dr Jacques Vosloo who was employed by the respondent as a Lecturer Post Level 1 at the Vuselela TVET College campus in Potchefstroom and had been employed in this capacity at the college since 08 January 2008 while he had been employed by the Department of Higher Education since 1991. He earned a monthly salary of R20, 528.13. The applicant was dismissed on 19 January 2022 following an incident where he was alleged to have assaulted the campus manager and refused to carry out an instruction given, among other allegations. Five charges in total were preferred, and the applicant pleaded guilty to two of these charges while he pleaded not guilty to three of the charges. The charges preferred against the applicant were the following:

Charge 1

“On the 21st October 2021 you seriously assaulted the Campus Manager at the Potchefstroom Campus in an examination center and subsequently a police case was opened with (CAS 315/10/2021) hence making yourself guilty of misconduct by contravening Employment of Educators Act 76 of 1998 section (17)(d) which reads “Seriously assaulting with the intention to cause grievous bodily harm to a learner, student or other employee”

Charge 2
“On 21st October 2021 you assaulted the Campus Manager at Potchefstroom Campus in an examination center hence making yourself guilty of misconduct by contravening Employment of Educators Act 76 of 198 section (18)(r) which reads “Assault, or attempt to or threatens assault, another employee or another person”

Charge 3
“On the 21st October 2021 you were instructed/requested by the Campus Manager to vacate the Examination center as you were not scheduled to invigilate and refused to accede to Campus Manager’s instruction hence making yourself guilty of misconduct by contravening Employment of Educators Act 76 of 1998 (18)(i) which reads “fails to carry out lawful order or routine instruction without just or reasonable cause”

Charge 4
“On the 21st of October 2021 you disrupted a National Examination by refusing to evacuate the center, arguing and assaulting the Campus Manager in front of sitting student whom erupted to the defense of the Campus Manager hence making yourself guilty of misconduct by contravening Employment of Educators Act 76 of 1998 section (18)(a) which reads “fails to comply or contravenes this Act or any other statue, regulation or legal obligation relating to the education and the employment relationship”

Charge 5
“On the 12th October 2021 you confronted the Campus Manager in her office and intimidated her, shouting her and conducting yourself improper in front of students and staff hence making yourself guilty of misconduct by contravening Employment of Educators Act 76 of 1998 section (18) (Q) which reads “while on duty conducts himself or herself in an improper, disgraceful or unacceptable manner”

[5] Aggrieved with the dismissal sanction, the applicant referred an unfair dismissal dispute to the ELRC for conciliation and, when the dispute could not be resolved at conciliation, the applicant referred the dispute for arbitration. He challenged his dismissal on procedural and substantive grounds and seeks retrospective reinstatement or maximum compensation were the arbitrator to find that reinstatement was not practically possible as remedy on consideration of any of the factors set out in Section 193(2)(a), (b), (c) and (d).

SURVEY OF EVIDENCE:

Employer’s Evidence

[6] The respondent called Mr Johannes Masekoameng as its first witness. He is employed by the department as the Chief Education Specialist and presides over cases and knows the applicant form when he chaired his (applicant) disciplinary hearing in 2021. The applicant was represented by a trade union representative during his disciplinary hearing and the necessary procedure was followed in terms of affording the applicant an opportunity to be heard. The applicant was employed as a lecturer, and there was np issue raised around him being charged in terms of the wrong Act. He arrived at his findings after having listened to evidence of witnesses. As contained in his summary of findings, the applicant elected not to present oral evidence and had pleaded guilty to charges 3 and 4. His appointment was not influenced because he was informed that there was a case and did not know about the case until he arrived at the institution and only had sight of the charges when he arrived at the hearing.

[7] The second witness called by the respondent was Miss Sisi Elizabeth Dlamini. Her testimony was that she is employed by the college as a senior lecturer for business studies and was a lecturer at the time the incident involving the applicant occurred. She gave a statement regarding an incident that occurred on 21 October 2021 where, during an examination taking place at Room 8, she was the deputy invigilator. There are rules that must be abide by when an examination takes place. While students were coming into the room to write an exam, the applicant came to the room and went straight and sat on a desk where there was a computer, pulled his chair and sat. According to the rules, onle the invigilators must be at the exam venue. She approached the applicant and enquired about why he was in the room, to which the applicant respondent that he was there to print. She then told him that he could not be there and could not print as that would disrupt the exam session. The applicant refused to leave the room, and she left to call the campus manager and when they arrived at the classroom, the applicant was still there.

[8] The applicant started putting a memory stick into his computer, and she took the memory stick and threw it away after the applicant did not heed an instruction by the campus manager to go and work at the resource room. The applicant stood up and started attempting to attack her. She ran out of the classroom to get some help. She does not know what happened after but heard that the applicant assaulted the campus manager who was assisted by one of the students. The applicant rendered the environment hostile for examination to be written, but students nonetheless wrote the examination. The applicant was not supposed to be at the room while the examination was ongoing. The applicant is fully aware of the examination rules as he had invigilated examinations before. She sent a message to the SADTU WhatsApp group members where she made members aware of what happened. She explained on the group that it was not the first time that the applicant displayed or engaged in similar conduct. The applicant at the time was a member of SADTU and part of the WhatsApp group. She sent the voice note in order to have the members bring the issue of the applicant’s conduct to management. That the voice note she sent was done to incite and unduly influence other witnesses is not true. She sent the voice note to the members of SADTU and never spoke to any individual members.

[9] Miss Nthabiseng Felicity Mofulatse was called as the respondent’s third and last witness. She testified that she is employed as the campus manager and is responsible for all campus operations and academic activities. During examinations, the principal gets appointed as the chief invigilator and is responsible for running of the examinations. On 21 October 2021, Miss Dlamini came to her office reporting that the applicant was busy typing in the exam room and was refusing to leave. She went to room 8 and asked the applicant to leave the room, but the applicant refused saying that he was printing. She told the applicant to go to the resource room because he was not allowed to use the exam room. The applicant was not properly wearing his mask, and when she asked him not to get closer to her, the applicant grabbed her hand and twisted it, and a male student who was sitting on the other side of the room jumped up to her defense. She went back to her office, and the applicant later entered her office, but she refused talking to him because she was still upset and emotional. She reported the incident to her line manager, and she also opened a criminal case for assault.

[10] The applicant is aware of the examination rules as all lecturers attend training on conducting of examinations.

Employee’s Evidence

[11] Dr Johannes Jacques Vosloo, the applicant, testified that he possesses a PhD qualification which he obtained in 2014. When transferred to the EFT College sector, they were not given letters of appointment and, according to him, he was an employee of the Department of Higher Education. On 21 October 2021 he arrived at the college earlier and reported for work before 08h00. He had three pages that he had to print and which pages were for the moderation of his file. He had no intention of disrupting examinations and brought his own paper to print. He entered the room that he normally used because there were no other printers that were in use. He printed the papers and when he was done, Miss Dlamini took his memory stick and threw it at him. Miss Mofulatsi then put up her arms which he instinctively grabbed but later realised he should not have. Miss Mofulatsi then told him she was going to charge him and thereafter left the room. No student was involved or tried to intervene when he grabbed Miss Mofulatsi. There was no way that the student could have jumped between him and Miss Mofulatsi. He collected his memory stick and wanted to also take his paper from the printer when Miss Dlamini told him he could not take the paper.

[12] He went to the campus manager’s office to apologise and to explain to her that there were no other resources where he could print and that he had reported the problem on previous occasions. The campus manager did not respond and one of the campus staff approached him and told him to leave the office. He reported for work the following day but was moved to the Corporate Office in Klerksdorp where he continued to work until his dismissal. He was never suspended.

[13] He received the charge sheet on 12 November 2021. He wrote a letter to Mr Sechoaro who is the labour relations officer on 09 December 2021 intending to have the issue resolved amicably. He pleaded guilty to charges 3 and 4 relating to his having interrupted the examination and for refusing to leave the classroom when instructed to do so by the campus manager. His reasons for refusing to leave was because he had arrived at the venue earlier and could not have interrupted the examination and also because there were no other printers he could print from, and he had reported the problem with the other printer.

[14] While a criminal case was opened against him, he was acquitted of the charges. He appealed against the sanction of dismissal, but his dismissal was confirmed. He was part of the SADTU Vuselela TVET College WhatsApp group, and the group had about twenty-nine members. The campus manager was on that WhatsApp group as well and he would argue that it was procedurally unfair for the voice note to be circulated in the group before the hearing. He did not have any valid warning when he was dismissed, and he had a clean record. He had written letters to the campus manager requesting personal growth plan and at some stage to be assisted with conflict management training. He never received any assistance with conflict management and human relations.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[15] In terms of Section 188 of the LRA, a dismissal that is not automatically unfair is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct or capacity and that the dismissal was effected in accordance with a fair procedure. Also, in terms of Section 192(2), once dismissal is established, the employer bears the onus to prove fairness of a dismissal. In the present case, it is common cause that dismissal occurred, and it was thus the respondent who bore the onus. Evidence of three of the respondent’s witnesses was led as well as that of the applicant. Because the applicant also challenged his dismissal on procedural grounds, I first deal with the procedural unfairness challenge.

Procedural Fairness

[16] The applicant’s challenge on procedure was grounded on two points, firstly, that the circulation of the voice note on the WhatsApp group relating to the incident before the disciplinary hearing influenced the chairperson and the witnesses who were to be called to testify. The second point was that he did not receive a letter of appointment as the college lecturer and understood himself to be employed by the Department of Higher Education and Training and that he should not have been charged in terms of the Employment of Educators Act 76 of 1998 (EEA) which applies to teachers employed in the Basic Education Department. The third point was that there was unfair splitting of charges an issue the applicant alleged the chairperson did not deal with.

[17] I hasten to state that all three points on procedural unfairness fall to be outrightly rejected as lacking in merit. I cannot find there to be anything untoward about the charges preferred against the applicant, let alone the procedure followed in his dismissal. The applicant’s second challenge on procedure, which I elect to first deal with, was premised on his claim that a wrong act was used in charging him to the extent that the charges referred to the conduct alleged being in breach of Employment of Educators Act. While the applicant is correct in asserting that he should not have been charged in terms of the EEA to the extent that he was not an educator employed as an educator in terms of the EEA at a public school or in district office by the Head of Department (HOD) of a provincial department of education or by any provincial department of education or by the Department of Basic Education at national office the conduct alleged, where he was found guilty, falls within misconduct that should invite serious sanction irrespective of the act that would have been used to charge him. Also, the applicant was registered with the South African Council of Educators (SACE) and the conduct the applicant was charged for is one covered in terms of the Code as envisaged by sections (3) and (5) of the South African Council for Educators Act 31 of 2000 and is conduct the breach of which would still warrant serious sanction where he was found guilty. But I should mention that while the applicant initially raised this point at the commencement of the process, his representative did not address it with in any substantive way with the respondent’s witness who chaired the disciplinary hearing. This was because, according to the applicant’s representative, the issue was only raised on appeal and not during the disciplinary hearing, and he thus elected to argue the point in closing.

[18] Also, the very charges 3 and 4 that the applicant pleaded guilty to make reference to his having acted in breach of the EEA. It then becomes a contradiction that he would challenge the reference to the EEA only to those charges he did not plead guilty to. In any event, the applicant did not canvas the issue during the disciplinary hearing as it is now common cause that he did not present a version by leading evidence during his disciplinary hearing. But even if the applicant was charged in terms of a different act, same would have changed nothing insofar as the conduct complained of and that he was charged for. As I allude to in [17] above, the applicant was an educator, and if found guilty of the conduct alleged irrespective of the act used to charge him, he still would have been guilty of misconduct that would warrant sanction by virtue of his having breached the Code of Conduct for educators. In any event, he himself did not show how his being charged in terms of the EEA would have changed anything or rather that he would have been absolved of the allegations had he been charged using a different act.

[19] On the issue of the WhatsApp voice notes having been circulated before the disciplinary enquiry, I cannot find this to have created any prejudice to the extent that none of the individuals who were part of the WhatsApp group who would have been privy to what was discussed testified during the disciplinary hearing. I do not have evidence to the effect that the WhatsApp voice notes and what was said in the group chats became an issue or was raised during the disciplinary hearing. But even if it was raised in these arbitration proceedings as it has, I reject that the chats in the group had any bearing on the applicant being charged and dismissed for the offence he committed.

[20] The chairperson of the disciplinary hearing was not part of the WhatsApp group, and his version to the effect that he did not have knowledge of the charges before the disciplinary was not so much gainsaid. But even if it was, reference to the chairperson allegedly having had prior knowledge of the charges was based on the letter of appointment as chairperson which explained the nature of the misconduct. But even if the chairperson had this knowledge, I reject that he would have been influenced to the extent that no evidence had yet been led. The applicant was charged for having assaulted the campus manager, an allegation that evidence was led on, and he was also charged for two charges which were that of his having refused to obey a lawful instruction and a charge of disrupting the examinations, and which two charges he pleaded guilty on and did not register a different plea on at arbitration.

[21] On the issue of the alleged unfair splitting of the charges, I again cannot find that the applicant had proven this claim. While I find that charges 2 and 5 could have been collapsed into one charge to the extent that the conduct referred to in both charges is similar and to the extent that even if one of the charges was left to stand, the substance of the allegations would not have changed. In conclusion, the splitting of the charges, the applicant’s being charged in terms of the EEA and the circulation of the WhatsApp voice notes being circulated before the disciplinary hearing did not result in the applicant suffering any prejudice. He was made aware of the charges against him and was given a fair opportunity to defend them in a disciplinary hearing.

[22] It is my finding that the respondent did not err as to procedure.

Substantive Fairness

[23] Substantive fairness entails the question of whether the reasons for the dismissal were valid. I hasten to mention that the nature of the charges, including the two charges the applicant pleaded guilty to, are of a very serious nature. The charges that the applicant did not plead guilty to but was found guilty of, and such being charges 1, 2 and 5, are of such gravity that no employer could be reasonably expected to tolerate them in any workplace. These three charges address a conduct the applicant displayed against the campus manager where he, according to evidence led, assaulted her to the extent that she (campus manager) had to open a criminal case, went on to confront her in her office after the assault in Room 8 (the examination venue). In respect of the charge of assault, the applicant denied that he assaulted the campus manager but explained his conduct by stating that he only reacted when the campus manager raised her hands. Evidence presented however do suggest that this version was far from the truth. The campus manager did not strike me as naïve, and I could not find that she would have had any reason to falsely state that the applicant assaulted her. The applicant did not show any history of animosity between him and the campus manager in the period that he had been a lecturer at the college. If the applicant did not assault the campus manager, evidence would at least point to that reality.

[24] That the applicant did assault the campus manager is evidenced by his stating: “Miss Mofulatsi then put up her arms which I instinctively grabbed but later realised I should not have” point to the assault having occurred. If he merely grabbed the campus manager as he stated and if he merely grabbed her arms, I do not believe, based on my having observed Miss Mofulatsi during the arbitration proceedings, that she would have gone to the extent of not only refusing to entertain the applicant when he later went to her office but going further to later open a criminal case. The applicant did not dispute having gone to the campus manager’s office after the encounter inside the exam venue and further did not dispute that he was asked by a colleague to leave the campus manager’s office because he was upsetting her. The applicant stated that he showed remorse by later apologising for his conduct by writing a letter to the Senior Labour Relations Officer, Mr Sechoaro. But that apology was rather belated and only written on 09 December 2021 when the incident occurred on 21 October 2021.

[25] Even if the applicant were to want me to believe that the assault did not occur as stated by the two witnesses, Miss Dlamini and the campus manager, all indications point to a charged environment just before the assault occurred. Miss Dlamini’s version, and which version was not so much gainsaid by the applicant, was that she ran out to call the campus manager after an encounter with the applicant where he (applicant) refused to leave the examination room. Miss Dlamini did not just leave the examination room. She ran out after the applicant charged at her and tried to attack her while trying to take back the memory stick he tried to use to print in the examination room.

[26] The applicant pleaded guilty to charges 4 and 5, and he did not recant from that plea at arbitration, and I accordingly cannot find that he should not have been found guilty of these two charges. Regarding charge 5, I cannot find that the employer erred in finding the applicant guilty of this charge. Charge 5 related to the improper nature of the conduct displayed by the applicant towards the campus manager inside the examination venue and later when he went to the campus manager’s office where a colleague intervened and asked him to leave as he was upsetting the campus manager. The conduct displayed by the applicant on both occasions was indeed improper and warranted the harsh action the respondent took against him.

[27] The person against whom the conduct was displayed is a campus manager who was fairly senior to the applicant. The applicant did not explain why, when Miss Dlamini went to call the campus manager who later came to the examination room, he did not exercise restraint. The campus manager was not only senior to him but is a female. That a student had to intervene when he assaulted the campus manager showed complete disregard for her authority, conduct that should invite harsh scorn.

[28] The trite principle restated by the courts is that while the onus never shifts, where the employer has fleshed out the allegations and presented as such evidence as would warrant rebuttal, the evidentiary burden shifts to the employee to provide a reasonably explanation in rebuttal, a principle stated in Emfuleni Local Municipality v SAGBC and Others . This principle was later restated in Compass Group Southern Africa (Pty) Ltd v CCMA and others . In Emfuleni Local Municipality case, the court stated that: “In the absence of a credible and reasonable explanation from the employee, the inference that the arbitrator should most reasonably have drawn is that the employee is guilty and that the Applicant employer has discharged its onus.” While the employer showed that assault did occur and that the applicant was guilty of the charges 1, 2 and 5, the applicant did not put up any credible and reasonable explanation for his conduct. He only belatedly came up with an excuse to the effect that he had sought help from the respondent regarding training on conflict management and human relations, suggesting that he possibly could have handled himself better had he undergone such training, he did not show himself to have made any concerted efforts to get such assistance by way of presenting evidence to that effect during the arbitration proceedings. Also, that the applicant pleaded guilty to two of the charges and further did not present any version during the disciplinary hearing to counter the version presented by the employer when afforded an opportunity to do so suggests that he perhaps reconciled himself to the possibility that he was guilty of the misconduct alleged and that he lacked cogent defense. He possibly resigned himself to his fate.

[29] As regards the question of whether dismissal was appropriate a sanction, regard must be heard to the seriousness of the misconduct the applicant was found guilty of. While the Code of Good Practice: Dismissal, and which Code I have taken into account as provided for in Section 188(2) of the LRA, provides for progressive discipline, and while the applicant argued that he was on a clean record and did not have any valid warning at the time of his dismissal, it is my finding that dismissal on first offence was warranted given the serious nature of the charges. It is common knowledge that the country is facing gender-based violence challenges and almost on a daily basis, cases of violence visited against women are reported. But even if the campus manager was not a female, employers are duty bound to provide a safe working environment for its employees, and any conduct that seeks to frustrate or defeat that objective should invite harsh punishment. I cannot find dismissal to be unwarranted or inappropriate a sanction in the present case. I find valid and justifiable reasons to exist for the applicant’s dismissal.

[30] I accordingly, in the premises, make the following award:

AWARD

[31] The dismissal of the applicant was procedurally and substantively fair.

[32] The application is accordingly dismissed, and the ELRC is directed to close the file.

Monde Boyce
Panelist: ELRC