Panelist: Mothusi Maje
Date of Award: 04 August 2024

In the ARBITRATION between:

Mokhuwa Nyakallo
(Union / Applicant)

And

Department of Higher Education and Training

(Respondent)

Applicant’s representative: Rehan Coetzee (Legal Representative)
Applicant’s address: Bloemspruit
Bloemfontein
9300
Telephone: 083 596-6459
Email mmokhuwa@gmail.com

Respondent’s representative: Sisia Tauoa (Labour Relation Officer)
Respondent’s address: Department of Education: Training Free state

9300
Telephone: 082 889-2184 / 071 208-9575 / 068 595-3859
Email: fadielfarao@ncdoe.School.za

DETAILS OF HEARING AND REPRESENTATION

1. This is an award of the arbitration that commenced on the 23 May 2024 conducted on the Microsoft teams’ online. It became part-heard and continued face to face on 15, 16 and 17 July 2024 at the Motheo TVET College Central office in Bloemfontein.

2. The applicant was present, and she was represented by Rihaan Coetzee, an attorney from Bloemfontein. The Department of Higher Education and Training (Motheo TVET College) was present and represented by Sesia Tauwa the Labour Relations Officer.

ISSUE TO BE DECIDED

3. The issue to be decided was whether the dismissal of the applicant was substantively fair, and whether the appropriate sanction was meted out by the respondent.

BACKGROUND TO THE DISPUTE

4. The applicant was employed by the Respondent from the 01 January 2022 as a Lecturer and earned R298 029.00 per annum. The Applicant was dismissed on the 22 February 2024.

5. The first charge: the applicant was charged with acts of misconduct being that she continuously reported for work late for a period of thirty (30) days as from the 19 April 2022 until the 01 June 2022 despite being reprimanded on numerous occasions by campus management.

6. The second charge was that of dereliction of duty in that she deliberately or willfully neglected her duty in that on the 27 May 2022, she arrived at work at 08:10 and shut herself in the boardroom until 11:00am, despite the fact that she was supposed to invigilate and never did.

7. She was contacted telephonically by the Senior Lecturers and the Head of Department (HOD) multiple times, but she chose to ignore them. The Assistant Campus Manager: Corporate had to come and compel her to open the boardroom door.

8. The applicant pleaded not guilty at the disciplinary hearing.

9. The Applicant approached the Education Labor Relations Council (ELRC) alleging that her dismissal was substantively unfair. The Applicant prayed for retrospective reinstatement.

10. The dispute was not resolved at conciliation, and it was referred to arbitration hence this award.

11. Bundles of documents were submitted by the employer party. The employer’s bundle of documents was marked “Bundle A” whilst the applicant did not submit any bundle of documents at the arbitration hearing.

12. The proceedings were electronically recorded, and long hand notes were also kept. The summary of the evidence will appear in the analysis that follows hereinunder.

SURVEY OF EVIDENCE AND ARGUMENT

THE RESPONDENT CALLED FOUR (4) WITNESSES.

Gcobani Gege testified as follows:

13. It was his evidence that he was a former Head of Department (HOD) for Hospitality and Tourism Faculty at Motheo TVET College in Bloemfontein. He was appointed as the HOD in 2018 until February 2024. His duties and responsibilities were to monitor and supervise students and subordinates under his Department.

14. He knows the applicant as one of the Lecturers reporting to him. The applicant was charged for late coming and dereliction of her duties. Annexure C3 was the charge read on record. Annexure F was the letter issued on the 08 June 2022. He became aware of the letter when he was invited by the campus management regarding the issue of the applicant’s persistent and continuous behavior of late coming to work.

15. After he was made aware of the applicant’s behavior of late coming to work, he called the applicant on numerous occasions and invited the Senior Lecturers to discuss the issue of late coming to work. The applicant acknowledged her late arrival to work and promised to work on it.

16. The applicant’s reasons for coming late at work were that she had traditional beliefs. He suggested to the applicant to address the issue with the College management. The applicant did not raise the issue about her employment contract, and he always advised all employees to seek assistance in terms of the employment contracts with the office of the Human Resources Management.

17. Annexure N1 to N4 are the documents related to the Motheo FET contracts of employment. According to the operational requirements, the starting time at work is 07:30am, classes’ starts at 07:45am and classes ends at 15:00pm.

18. Annexures, K5 until K7 are the attendance registers for staff members, the applicant did not sign the attendance register on the 20 April 2022. On the 25 April 2022, the applicant did not sign the attendance register.

19. Also on the 25, 26 and 27 April 2022, the applicant did not sign the attendance registers. All the conduct of the applicant implied that she arrived late at work, and it was against the standard operations and procedures of the campus to do so. All lecturers were supposed to report at work by 07:30am for a morning briefing and classes’ started at 07:45am as the standard operating procedures at the College.

20. The Annexure K8 is the attendance register signed by the applicant at 08:00 on the 03 May 2022. On the 04 May 2022, the applicant signed the attendance register at 08:15am. Annexure K10, is another attendance register signed by the applicant on the 05 May 2022.

21. Annexures, K11 until K14 are the attendances registers singed by the applicant still arriving late at work. The applicant did not report her late arrival at work to management or Senior Lectures and consequently they did not have an idea of her whereabouts.

22. The applicant’s behavior indicated insubordination and disrespect towards management and not recognizing his position as the HOD. There was a professional relationship between himself and the applicant, but the only problem was that of her late coming to work.

23. He requested a spreadsheet to be populated for late comers at work and those employees who absent themselves from workplace. Time is very important as it has an impact on performances.

24. Annexure I was the minutes of the meeting held on the 09 May 2022 at 07:30am in Bloemfontein. The purpose of the meeting was an awareness to employees. The Deputy Principal and Labour Relations were invited to sensitize employees on punctuality and late coming to work. Labour Relations made a presentation to management and staff to make them aware of late coming to work.

25. The applicant was part of the meeting and she participated in the meeting. Annexure J is the attendance register of the meeting held on the 09 May 2022. The applicant did not change her behavior after the meeting was held. Late coming has a very serious and negative impact on the students.

26. Annexure M until M3, is the personal timetable and the subjects for the applicant. Annexure C is the charge of dereliction of duty. On the 07 May 2022, the applicant arrived at work, it was during the examination time for May / June 2022. One of the lecturers of the faculty reported sick for work and the practice at the institution was that if a member is sick, there must be a replacement.

27. He personally looked for people to invigilate and contacted the applicant telephonically who responded positively that she was on her way to work. There were many telephone calls made to the applicant. A group of WhatsApp messages were sent to all staff members.

28. Annexure W is the document indicating a WhatsApp group message for the faculty sent on the 27 May 2022. The institution was running out of Invigilators. The applicant failed to invigilate, and her conduct affected the number of students. Her behavior compromised the entire examination process.

UNDER CROSS EXAMINATION

29. It was his further evidence that annexure N, is the employment contract indicating the operational requirements of the college and the campus at clause, 7.1. There was a problem at N4 entry level because the applicant always arrive late for work after 07:30am based on the documents and his personal observation.

30. Any arrangements to move classes must be arranged with the Senior Lecturer and himself. He spoke to the applicant telephonically and there was an agreement that she was on her way coming to the college to invigilate when one of the lecturers was booked off-sick and did not come to work.

31. There was also a WhatsApp message sent to the applicant as a reminder. Lecturers on standby are always reminded to be available during the examination time for any eventuality. The accuracy of the attendance register is correct because the information provided in the attendance register is written by the employees themselves on the reporting times.

32. There was no practice that employees must sign the attendance register later after they commenced with their work at the college. On the 09 May 2022, there was a meeting which the applicant attended. The meeting commenced at 07:30 and he saw the applicant at the meeting. The applicant was continuously reprimanded verbally for not reporting for work on time. The applicant raised transport issues but promised to change her behavior.

Slilo Mfazwe testified as follows:

33. His evidence under affirmation was that he is the Assistant Campus Manager: Corporate Services for four (4) years. His duties and responsibilities are the administration of the campus, human resources of the campus and discipline at the workplace. He knows the applicant as a former Lecturer and wrote a letter to the applicant.

34. A complaint came from students that Lecturers were not attending classes and they were coming late to work. Employees’ reports at 07:30am and classes starts at 07:45am. The applicant was not willing to report in time. Annexure G is the response from the applicant to the letter issued.

35. Employees were late on the 19 April 2022. The applicant did not sign the attendances registers appearing on annexures K1, K3, K4, K5 and K7. The applicant did not improve her late arrival at the college after the meeting held on the 09 May 2022 and the students were still complaining.

36. On the 27 May 2022, it was examination day which was regulated. The applicant was very rude stating that she was busy supporting and counselling her colleague at work. The applicant did not invigilate on that day, 27 May 2022.

37. At this stage of arbitration, an inspection-in-loco was conducted at the college premises.

38. He testified that the applicant opened the door around 11:00am after he climbed on a chair and looked through the window outside the board room. There is a wellness program at the College to handle the emotions ofr colleagues. It was unreasonable for them to lock the door.

UNDER CROSS EXAMINATION

39. It was his evidence that there was a complaint from the students that Lecturers attended the classes late. He requested the Head of Department, Mr. Gege to investigate and the intervention was done by management to assist in the situation.

40. Progressive discipline was conducted and there were seven (7) other lectures who changed their behavior except for the applicant. On the 07 June 2022, the audi letters were issued and the other peoples’ behavior changed except for the applicant.

41. Annexure P is the appointment letter of the applicant. Annexure O is the fixed term contract of employment of the applicant. The applicant was charged with dereliction of duty in that during the examination period, all classes stopped, and she did not invigilate.

42. The applicant agreed to come and invigilate, but she locked herself in the board room with another colleague. After the meeting on the 09 May 2022, the applicant was still coming to work late. The applicant was fully aware that she must report for duty at 07:30am.

Susana Elizabeth Oddendaal testified as follows:

43. She is the campus manager in Bloemfontein since 2013. Her duties and responsibilities entail academic, teaching and learning and academic oversight of staff members, student support services and corporate.

44. She knows the applicant as a Lecturer for tourism and hospitality. Lecturers are compelled to do invigilation and regulations are in place. Lecturers are expected to do investigation. Mr. Gege contacted the applicant, and she agreed to assist with invigilation. It was found later that the applicant was inside the board room and did not perform the duty given to invigilate.

45. All lecturers are trained and informed that there must be sufficient invigilation. She was informed by both Mr. Gege and Mr. Mfazwe that the applicant was contacted telephonically who confirmed that she will be present at work..

46. Annexure T is the appointment letter for the applicant to invigilate. The applicant was allocated work to invigilate because when the need arise, the applicant was expected and required to invigilate. Annexure U is the attendance register for invigilation training attended by the applicant.

47. The applicant arrived at work late on many occasions. One day the applicant’s husband came to drop her late at the college whilst speeding on a pedestrian walk. She stopped the car and questioned the driver, and it was around 09:00 in the morning. The reporting time for work is 07:30am and there is no flexi hour’s arrangement.

UNDER CROSS EXAMINATION

48. The witness further testified that annexure T, is the applicant’s appointment letter in 2023. The applicant requested an employment contract which was not provided. Annexure F is the audi letter issued to the applicant. Annexure G is the response to the audi letter from the applicant.

49. The message she received from the HOD was that the applicant was telephonically contacted, and she agreed to come and invigilate. Annexure T is the appointment letter of the applicant to be an invigilator. It was her evidence that there was no employment contract for the applicant that she must report for work at 07:30am.

50. Over the years, she observed the applicant coming to work late as well as monitoring her coming late for work.

Lekgowa Johannes Thakhube testified as follows:

51. He is the Human Resources Manager for 28 years after joining the Public Service in 1996. He knows the applicant as a lecturer at the College. Annexure N is the applicant’s fixed term contract of employment starting from 02 February 2004 until 30 June 2004.

52. The employer can determine hours of work by a way of flexi hours due to operational requirements of the employer. The same employment contract was not valid as it was a fixed term contract of employment. The Personnel Administrative Measures (PAM) deals with the measures and conditions of employment of educators.

53. The Department of Higher Education undertook to divide Higher Education and Basic Education.

UNDER CROSS EXAMINATION

54. He has a B-Tech Degree and did part of Labour Law. Annexure P is the appointment letter of the applicant. Section 4 of Employment of Educators Act, no (as amended) (EEA) deals with appointments. The applicant applied for a position with the Department of Education.

55. The lecturer is accountable for 1 800 hours per annum. The employer is the one responsible to determine hours of work based on the operational requirements and the prerogative is with the employer.

Linda Mofokeng testified as follows:

56. She is the Senior Lecturer in Hospitality for five (5) years and knows the applicant as she was her direct supervisor. The applicant is known to her as a habitual late comer at work. Control measures were put in place and the attendance registers shown that the applicant was late at work.

57. There was an informal meeting with the applicant by management at the faculty. All classes starts at 07:30am and she does not know any arrangement that classes starts later than the period scheduled. Annexure L1, is the invigilator attendance register for 01 June 2022.

58. A personal file must contain all relevant documents of the invigilator when the invigilation starts together with the applicant’s appointment letter. On 01 June 2022, the applicant invigilated.

UNDER CROSS EXAMINATION

59. There were practicals done in 2022 and the files and appointments letters were issued before the training. Everyone must have an appointment letter to invigilate. She was not aware of the arrangements with other Lecturers to move classes.

60. She did not receive any complaints that the applicant did not attend classes. Lecturers must observe 35 hours per week and the knock off time is at 15:00. On Fridays, the knock off time is 13:00.

61. Mrs. Odendaal normally will do the trainings for the lecturers who did not attend a formal invigilator’s training but will do it on one on one basis. 07:30 is the starting time for all employees at the college and the attendance register must be signed.

APPLICANTS’ EVIDENCE.

Mokhuwa Nyakallo testified as follows:

62. She started working for Motheo TVET College in 2004. Annexure N. is the fixed term contract of employment that she worked until the last day of her dismissal. She was dismissed in March 2024 after working for more than 20 years.

63. It was her evidence that when she was employed, a fixed term contract of employment for six (06) months was signed until she was absorbed by the Department. The appointment letter was issued together with the contract of employment. She requested her employment contract on several times together with her colleagues from the employer.

64. She went to the Head of Department, Mr. Gege to request the contract of employment after she was absorbed. The reasons provided by the employer for refusing to give the contract of employment was that the same terms and conditions were the same. She only received her contract of employment on the day of the disciplinary hearing.

65. Her salary was not correct on level 7, and she raised the salary issue with the employer. There were reasons for her not to report to work at 07:30am because there were issues with her salary adjustments. She stays far from the college and has to contend with traffic plus drop her son off and continues to travel to the college.

66. She tried to explain to management about her salary, but she was told that the college was saving money for her, meaning that she will be back paid. Sometimes she struggles to find the attendance register because some of the officials keep the attendance register with them.

67. She sometimes worked even more than the 7 hours. The entire process of the disciplinary hearing was unfair. Sometimes she finishes work after working hours. There were no complaints against her for not attending classes.

68. Mr. Gege did not get hold of her telephonically. During the disciplinary hearing, she explained that everybody could not get hold of her telephonically. It never happened that Mr. Gege contacted her telephonically.

69. She did not attend the invigilation training, but she was given the appointment letter. When lecturers go for training, she would be excluded. Lecturers need to be trained first before being issued with an appointment letter.

UNDER CROSS EXAMINATION

70. The applicant testified that the reason for lateness was as a result of incorrect salary not paid by the employer. She only raised a salary issue at arbitration. She had raised the salary issue with the Human Resources Manager previously.

71. She did lock herself in the board room deliberately because she did not know the arrangement to invigilate.

72. Mr. Gege entered the board room and told her that she makes his working conditions unfavorable and Sesotho stating that “o mo sebedisa ha bohloko”. She had financial constraints which led her reporting late for work due to the incorrect salary underpaid to her.

ANALYSIS OF EVIDENCE AND ARGUMENT

73. Where the employee challenges the fairness or otherwise of her dismissal, once the existence of dismissal has been established the employer bears the onus to prove its fairness on the balance of probabilities. (In this regard see Section 192 of the Labour Relations Act 66 of 1995 as amended, ‘the LRA’).

74. In casu, it was common cause that the respondent dismissed the applicant. Therefore, the respondent bears the onus to prove its fairness on the balance of probabilities. The respondent has to prove that the applicant was dismissed for a fair reason and that fair procedures were followed.

75. In this matter, the respondent dismissed the applicant on the basis that it viewed her as having been guilty of the charge.

76. It sought to discharge the onus of proving that the dismissal was substantively fair, through documentary evidence and four witnesses.

77. Section 188 (1) of the LRA requires a dismissal to be for a fair reason and effected with a fair procedure.

78. Section 185 (a) says every employee has the right not to be unfairly dismissed.

79. In terms of item 7 of schedule 8 of LRA, any person who is determining whether a dismissal for misconduct is fair should consider-

80. Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

81. If the rule or standard was contravened, whether or not-

82. The rule was a valid rule or reasonable rule or standard;

83. The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

84. The rule or standard has been consistently applied by the employer; and

85. Dismissal with an appropriate sanction for the contravention of the rule or standard.

86. The applicant defense solely rested on three issues, blatant denial of breaching the workplace rule, her salary was not correctly paid by the respondent and the appropriateness of the sanction of dismissal.

87. According to the applicant she did not breach any workplace rule. The applicant’s time keeping has always consistently been unacceptable despite numerous attempts from the senior lecturer and management at the College.

88. Despite it being unequivocal that there was a rule in the workplace, the applicant insisted to the bitter end, that according to her there was not clear time frames to report for work as she was under the impression that she worked flexi times.

89. It is trite law that all rules need not be written down- some rules are common knowledge, or custom and practice; or communicated at meetings and on notice boards. Some exist because of the nature of employment relationship- which automatically requires an employee to serve the employer faithfully and honestly, and to protect the employer’s interest.

90. The applicant provided various reasons for why she had arrived late at work, inter alia, that the employer was under paying her salary, and she did not have a car to drive in the morning to be in time at the workplace (college).

91. Her defense that the reason for lateness was that she first needed to drop her child who has to be transported School. The applicant also stated that she raised the issue of the employment contract with the employer which must indicate the time to start working in the morning and the knock off time. The employer refused.

92. The real reason for the applicant not to arrive at 07:30am until 15:00 pm was as a result that those periods in times were not contained in her contract of employment which she alleged to have signed but the copy of that signed employment contract was not given to her.

93. The applicant was extremely vague about what happened at the meeting with management on 09 May 2022. During the cross-examination, when she was confronted about what happened during the meeting with management on 09 May 2022, she responded that her money was not paid.

94. The basis of any employment contract (whether written or not) is that the employee has to come to work and be on time. In order to perform the duties which, he / she has been hired to do. He / she must remain at the workplace for the contracted number of hours per day in order to perform the requisite duties.

95. This obligation to come to work and stay on the job whilst at work does not only come out of the employment contract. It arises from three (3) other sources of which is common law, statutes and the company rule and regulations.

96. The common law is not law that has been legislated by parliament, but rather arises mainly from court judgements and general practice.

97. It is law that has developed over the years and is what people have come to accept as recognized norms and standards, and which are developed by our courts.

98. An employee has a number of obligations under common law which he / she must meet. These obligations exist even if they are not stipulated in the contract of employment which is:
(a) to provide the employer with his or her labour.
(b) to obey reasonable and lawful instructions.
(c) to act in good faith (to protect the employer’s interests)
(d) not to misconduct himself / herself (to behave properly according to the acceptable norms and standards of society).
(e) to perform his / her duties and to work in a satisfactory manner.

99. If the employee is late every day for a week or a month and the reason for being late is not justifiable, the excuse cannot be accepted. The employee must justify his or her lateness at work. The rule is that the employees has certain working hours based on operational reasons.

100. There is a further legal concept that bears mention, this principle of unjust enrichment at the expense of another. The employer / employee relationship in simple speaking terms means that: the employee shall offer his / her services and the employer shall pay him / her for such services.

101. It is equally unfair fair for the employee to benefit by means of being paid something he / she did perform in terms of the employment relationship.

102. With regard to the charge of the dereliction of duty, the applicant attempted to deflect the blame by saying that she was not put on the roaster to invigilate, yet, it is evident that she was telephonically contacted by the Head of Department to make arrangements with her and she reported for work after one of the assigned investigator fell-ill in that morning.

103. The applicant had a condescending attitude and throughout the arbitration process. It was evident that she ignored the HOD’s prior arrangement, when she arrived at the college hat morning she did not show-up at the invigilation room and locked herself with her colleague in a conference room who she alleged was mourning for the loss of her child the past years.

104. Despite attempts from management to look for her whereabouts, she remained in the board room for the entire period without answering her phone.

105. There were attempts by management to knock at the board room where the applicant and her mourning colleague were and there was no response from both of them.

106. The only time when the applicant responded to unlock the board room door was when the college campus manager climbed a chair and peeped through the window between the door and the ceiling on top.

107. The applicant’s lack of remorse and her defiant refusal to accept responsibility for her actions is difficult to comprehend and even more difficult to accept. Such dereliction of duties could cause difficulties for the college service plays a second fiddle to comforting a colleague mourning the loss of a child years back.

108. Teaching and learning should be the applicant’s first priority as it was the reason for her to be employed in the first place. The integrity of the college and the learners at the school was compromised and could have led to a very disastrous situation between the Department and the public at large.

109. It is trite law that all rules of the workplace need not to be spelled out in meticulous details to employees.

110. The Applicant was not a good witnesses against the Respondent’s witnesses who were constant and corroborated each other.

111. The respondent’s witness testified that the misconduct committed by the applicant was of a serious nature and such misconduct had an impact the employment trust relationship.

112. The gravity or seriousness of the applicant’s misconduct tilts the scale to an extent that even the strongest mitigating factors like long service and clean service record of discipline are likely to have a minimal impact on the sanction imposed. In order words whatever the amount of mitigation, the trust relationship is broken and will not be restored.

113. The applicant committed egregious misconduct and there can be no doubt that dismissal was fair and appropriate sanction.

114. The Respondent succeeded to prove, on the balance of probabilities, that the dismissal of the Applicant was for a fair reason and that the procedure followed in effecting the dismissal was also fair.

AWARD

115. I therefore make the following award:

116. The Applicant’s dispute referral is dismissed.

ELRC Panellist: Mothusi Maje
ELRC Pretoria (Centurion)
04 August 2024.