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[2015] ZALCD 45
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Mhlauli v Mangosuthu University of Technology and Others (D144/14) [2015] ZALCD 45 (31 July 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case no: D144/14
In the matter between:
DR BHELEKAZI
MHLAULI
Applicant
and
MANGOSUTHU UNIVERSITY
OF TECHNOLOGY
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION
ARBITRATION
Second Respondent
COMMISSIONER BESS
PILLEMER
Third Respondent
Heard:
24 February 2015
Delivered:
31 July 2015
Summary:
Review of award – applicant charged with various acts of
misconduct – successful on majority
– numerical
superiority of her success not the sole deciding factor to her fate –
remaining counts outweigh mitigating
factors- dismissal procedurally
unfair entitling compensation.
JUDGMENT
CELE J
Introduction
[1] This is a review
application in terms of Section 145 (2) of the Labour Relations
Act
[1]
. It seeks to review, set
aside and substitute an arbitration award dated 19 December 2013
issued by the Third Respondent as a commissioner
of the Second
Respondent. The Applicant wants to be re-instated into the employment
she had with the First Respondent. The application
was opposed by the
First Respondent on the basis that the award is reasonable and does
not deserve to be disturbed. Condonation
for the late filing of the
First Respondent’s heads of argument was sought. It is granted.
Factual Background
[2] The Applicant
commenced her employment with the First Respondent during February
2008 in the senior position of Deputy Registrar:
Academic
Administration. She reported directly to the Registrar, Mr
Selvanathan Naidoo. The First Respondent is a university of
technology with its Vice-Chancellor and Principal as Professor M R
Kgaphola. The Applicant and Mr Naidoo had a troublesome employment
relationship. Attempts to resolve their issues were not successful.
On the side of Mr Naidoo, the source of the misunderstanding
was a
failure of the Applicant to carry out instructions given to her by
him. Seen from the perspective of the Applicant the challenge
came
about as a result of Mr Naidoo failing to give her a proper job
description with the result that Mr Naidoo kept interfering
with the
work that she had to do. At various periods of time Mr Naidoo issued
written instructions to the Applicant and the Applicant,
either did
not carry them out, or she would ask for further details or
clarification from Mr Naidoo. The result was that such instructions
were never carried out.
[3] On 10 January 2013
just after 15h00, the applicant was served with a notice of intention
to suspend her in the following terms:
‘
My
office is in receipt of a report in terms of which allegations have
been made against you. These allegations include, but are
not
necessarily limited to, you(r) refusing to follow or abide by work
related instructions given by your supervisor (Naidoo, the
Registrar)
as well as you refusing to participate in and/or cooperate with
university operational processes’
In
view of the seriousness of the allegations against you, I am
considering suspending you from the university pending the holding
of
a disciplinary hearing against you. However before I make a final
decision in this respect I require you, should you so wish,
to make
submissions to me why you should not be suspended. These submissions
must reach my office by no later than 16h00 today,
Thursday 10
January 2013’.
[4] The Applicant duly
complied and replied to the notice by 16h00. Her response
notwithstanding, on the following day, 11 January
2013 the Head of
Security, Mr Nkabinde, served a notice of suspension with immediate
effect upon the Applicant. He remained in
her office until she had
collected all her private things and had surrendered some of the
office tools to him. He then escorted
her out of the premises of the
University. The notice
inter alia
stated:
a.
That the
Applicant was suspended with immediate effect pending the holding of
a disciplinary hearing.
b.
That the Applicant was required to leave the premises immediately.
c.
That the Applicant was directed not to have any form of
communication, either directly or
indirectly, with any of the
employees of the employer regarding the pending disciplinary enquiry
without the permission of the
Office of the Vice Chancellor and
Principal.
d.
That Applicant is specifically required before she leaves the
University to hand over to Naidoo
all details and plans that she had
made to date towards the coming registration of students for the
current academic year.
e.
That the Protection Services Directorate of Respondent has been
mandated to manage her smooth
departure from the campus, and that it
is expected that she will cooperate with them, and abide by any
appropriate instructions
that they may give her.
f.
That Applicant must be available at all times on her phone during
work hours.
[5] The Applicant left
the premises of the respondent on that day but she did not conduct
that formal handover of her portfolio
to Mr Naidoo as duly instructed
by Professor Kgaphola in the notice of suspension. The internal
disciplinary hearing was scheduled
for hearing on 20 February 2013.
Applicant submitted a request for the hearing to be postponed. No
response was forwarded to her
request. On 20 February, she did not
attend the hearing nor did she notify the First Respondent that she
would not be in attendance.
On the same date, she instead went to
have a meeting with her attorney in his office and a reply to the ten
allegations made against
her by the Respondent was prepared and
telefaxed to the First Respondent at about 9h45. When Applicant
telephoned the First Respondent
to enquire as to whether the telefax
had been received she was told that the disciplinary hearing had
taken place in her absence
and had been completed prior to receipt of
her telefax. Later on that day she attended to a specialist
psychiatrist Professor D
L Mkhize and she obtained a medical
certificate of indisposition for that day. She was subsequently found
to have committed all
the ten counts of misconduct with which she was
charged and was dismissed.
[6] Without pursuing an
internal appeal, the Applicant referred an unfair dismissal dispute
for conciliation and when the dispute
could not be resolved, she
referred it to arbitration. Having listened to all the evidence and
submissions the Second Respondent
found that the First Respondent had
not proved the commission of counts 6 and 7 and she acquitted the
Applicant of them while finding
the Applicant guilty of the remaining
eight counts. She found that the dismissal was procedurally and
substantively fair and confirmed
the dismissal. The eight counts that
she was found guilty of were described by the First Respondent in the
following terms:
‘
Charge
1 – Gross misconduct
It
is alleged that you were instructed in terms of your letter of
suspension dated the 11
th
January 2013 to do a handover
report to your Supervisor and that you refused to do the said
handover report and even at the date
of drafting these charges, you
had not done the said handover report;
Charge
2 – Gross Misconduct
‘
It
is alleged that you were instructed by e-mail of the 10
th
January 2013 by your supervisor to authorise the order for the
purchase of the megaphones to be delivered on the 11
th
January 2013 but you responded by e-mail that you do not expect an
instruction from your supervisor and you did not follow the
instructions given and the megaphones were not delivered on the 11
th
January 2013;
Charge
3 – Gross misconduct
‘
It
is alleged that you were instructed by e-mail of the 8
th
January 2013 by your Supervisor to amend all records to reflect the
adjusted fee increase but you responded in a defiant manner
by e-mail
of the 8
th
January 2013 and then defied the instruction by not effecting the
amendment on the Exemption/Credit Application Form from R20.00
to
R50.00 per subject as instructed;
Charge
4 – Gross misconduct
‘
It
is alleged that you were instructed by e-mail of the 7
th
January 2013 by your Supervisor to attend a Registration Planning
Meeting on the 9
th
January 2013 but you failed to attend it and did not even make an
apology;
Charge
5 – Gross misconduct
‘
It
is alleged that you were instructed by e-mail of 12
th
December 2012 by your Supervisor to give a report on Registration but
you responded by e-mail of the 13
th
December 2012 alleging that Registration is your responsibility and
then you failed to give the report;
Charge
8 – Gross misconduct
‘
It
is alleged that you were instructed by e-mail of the 3
rd
December 2012 to extend an invitation to Ms. Mbali Mkhize, a Director
at the University, to attend a Selection and Registration
Planning
meeting that you had convened, however, you defied the instruction
and you even barred Ms. Mkhize from attending the meeting;
Charge
9 – Gross Misconduct
‘
It
is alleged that you were instructed by e-mail of the 23
rd
May 2012 to convene a meeting to discuss inter-alia registration but
you responded by e-mail to the effect that you have a problem
with
the instruction and you did not convene the meeting;
Charge
10 – Gross misconduct
‘
It
is alleged that you gave instructions to the Faculty Officer to
change and increase a PreTech student examination mark and to
further
unblock the student without following a due process and no re-marking
having taken place’.
Evidence
led at arbitration
[7] The first respondent
called and led the evidence of six witnesses. They are Mr S Naidoo
the Registrar, Mr S G Mkhize the interpreter
at the internal
disciplinary hearing, Mr R S Nkabinde the Security Head, Mr S Mthembu
the Faculty Officer; Engineering, Ms N Xaba
the Secretary in the
Deputy Registrar’s Office and Mr T Ntsikwe the Secretary in the
Protection Services, working under Mr
Nkabinde. Mr Naidoo was
recalled for further cross examination. The applicant was the only
witness for her case. A brief outline
of the evidence shall be dealt
with. The sequence in which witnesses testified shall not necessarily
be followed.
[8] Mr Mkhize said that
he attended the internal disciplinary hearing and that it commenced
in his presence just after 09h00. He
expected to see the applicant
and a union official but none appeared. Mr Naidoo testified and a
number of documents were handled.
The proceedings were conducted in
English between the Chairperson, Mr Jafta and Mr Naidoo. There was no
cross examination. He did
not interpret but just sat and listened.
The hearing lasted for about 35 minutes and the Chairperson concluded
by saying that he
would make his decision later.
[9] Mr Nkabinde testified
on counts 1 and 2. In respect of count one he said that on 11 January
2013 he was given an instruction
by the Vice-Chancellor to serve a
letter of suspension upon the applicant and he had specific
instructions to carry through in
the process. He had to serve the
letter, to get a return of service and to afford the applicant an
opportunity to do a handover
with Mr Naidoo who occupied an office
next door to that of the applicant. He did as instructed. When it
came to the handover, the
applicant specifically said that she was
not going to go to Mr Naidoo’s office to do a hand over, saying
that it was just
not going to happen as she would not bow down to him
or his authority. He spent about one to two hours waiting for the
applicant
to collect her things and to bid farewell to her friends
and to some of the students. She made some telephone calls and her
friends
and students came to talk to her. He could not tell where Mr
Naidoo was when he handed the suspension letter to the applicant. He
had last seen Mr Naidoo going to his office as he, Mr Nkabinde,
approached the applicant’s office. He could not deny that
Mr
Naidoo was at the Human Resources offices when the suspension notice
was served on the applicant. He disputed any suggestion
that he
prohibited the applicant from moving around in the office due to
being on suspension. Upon her leaving the office she handed
to him
her office key, the office laptop and the staff card.
[10] In respect of count
2 he said that he attended a planning meeting held on 12 December
2012 by various stake holders. It was
to discuss what was needed for
the registration process of 2013 process which was to start around 14
January 2013. The meeting
was held in Mr Naidoo’s office but
the applicant was not in attendance. In that meeting he was asked to
get a quotation for
megaphones. They would be used to address a large
group of students for instance to address them on fraud awareness on
campus.
After the meeting his secretary obtained the quotations from
a company listed in the database of the university. In January 2013
it emerged that the company which gave the quotation was not going to
deliver the megaphones in time. He discussed the issue with
Mr Naidoo
who wanted to use his money to purchase the megaphones. The
Department of Protection Services was however able to source
the
megaphones from another company called Teamloco Audio and Electronics
on 12 January 2013, a Saturday. The university was to
open on the
following Monday. He denied having discussed the issue of megaphones
with the applicant in December 2012. He recalled
that on 15 February
2013 he went to the applicant’s house to deliver a 35 paged
bundle of documents.
[11] In relation to the
internal disciplinary hearing of the applicant, Mr Nkabinde said that
he attended it and was the first witness
to testify. He gave his
evidence in English, which took him about six minutes and he left. He
was later called back to the hearing
to give further evidence. By
then it was about 11h00. In his view therefore the hearing could not
have lasted for about 35 minutes.
[12] Mr Nkululeko Xaba
testified that he was employed by the first respondent as a Secretary
in the Deputy Registrar’s office
and therefore a secretary to
the applicant at times material to this matter. On 8 December 2013 he
received a quotation from the
Registrar’s office with an
instruction to process it further for the purchase of megaphones. He
stamped it to indicate the
date of receipt and handed it to the
applicant with a request that she authorized him to proceed with the
making of the order.
It was the only quotation for consideration.
Normally there were to be three quotations to choose from. The
applicant authorized
him to proceed with the first leg of the order.
He processed the order in the computer system and a serial number
with letter XY
was generated by the system. He processed the
requisition so as to await final approval, which if electronically
granted creates
another serial number with letters RY in the
documents that are then produced. He then went back to the applicant
for the second
leg, which is the final authorization process. The
applicant told him she knew about the order and would authorize it.
[13] When on the next
day, 9 December 2013, the Applicant had not given him authorization,
he sent her an email as a reminder. He
also went to her to remind her
and she told him she was aware of what was to be done. He met the
Registrar who wanted to know if
there was progress in the order and
he told the Registrar that he was still awaiting the Deputy
Registrar’s approval. Then
on 10 December 2013, Mr Xaba
received an email copied to him by the Registrar. It was directed to
the applicant about the order.
He again went to the applicant for
approval but none was given. Such approval would have come to him
electronically by an email
that would be automatically generated when
the Applicant issued the approval. He would then send it to
procurement that was to
process the final stage of the order. Seeing
that there was a delay in the matter, he telephoned the megaphone
suppliers who had
given the quotation. That was when he discovered
that the suppliers did not have the stock they required. He went to
the Applicant
and reported the problem. The response from the
Applicant was that it was obvious that the order had to be cancelled.
He denied
that each time he went to the Applicant he found her always
busy with something.
[14] Mr Naidoo testified
and he initially described the organogram with its reporting lines.
He was the registrar and two Deputy
Registrars reported to him. They
had teams reporting to them. He described an advertisement issued in
2007 for the post of Deputy
Registrar Academic with duties of the
incumbent and key performance areas reflected in it. He said that the
Applicant was appointed
against that position in 2008. According to
him the Applicant was familiar with the processes followed by the
Human Resources,
(HR) Department. If there was a need for the
Applicant to get a job description she had to approach the HR
Department. In relation
to the attendance of disciplinary hearings he
said that the Applicant had to be familiar with how to report her
absence if she
could not be in attendance. He said that she was a
Secretary of the Academic Disciplinary Committee dealing with
disciplinary hearings
of students.
[15] Mr Naidoo’s
evidence then dealt with each count of misconduct faced by the
Applicant. Evidence in relation to just a
few of the charges shall be
dealt with here. In respect of count 1, he confirmed that he received
no indication from the Applicant
that she would do the handover she
was directed to do on her last working day. In respect of count 2, he
said that he was alerted
by Mr Xaba that the order for megaphones was
delayed by the absence of final approval by the Applicant. He then
issued an email
to her and copied it to Mr Xaba, saying:
‘
Dear Dr Mhlauli, please
authorize the order for the purchase of the megaphones. We need this
to be delivered tomorrow. Thank you.
S Naidoo. Registrar’.
[16] He said that the
applicant responded on the same day at about 11h00 to his email and
she said that:
‘
Mr
Naidoo, (the Dear is missing) please note that I planned the 2013
registration in October 2012. The megaphone order was one of
the
orders we discussed with protection services towards the end of last
year since we once used them. Therefore I do not expect
an
instruction and deadlines about it from you especially that I am also
aware that they are needed next Monday’.
[17] He described the
megaphone as a voice amplifier with a siren to be used in addressing
crowds of students to avoid any stampede
by them as it happened at
the University of Johannesburg where a stampede led to the death of a
parent. He said that had the Applicant
ordered the megaphones towards
the end of 2012, they would have been delivered before the end of
that year, which did not happen.
The megaphones were finally sourced
through the protection services and were delivered on Saturday, 12
January 2013.
[18] In respect of count
3, Mr Naidoo said that he issued an email dated 8 January 2013to the
applicant, directing her to amend
records to reflect adjusted student
fees in the following terms:
‘
Dear
Dr Mhlauli, in addition to the general increase of 9% on tuition and
residence the following were also approved by council
on 5 December
2012:
1.
Fee
for replacement certificates increase by 9%, fees for remarking
increase by 9% and application for exemption/credit increase
to R50
per subject.
Kindly amend all records
to reflect the adjusted fees. Regards, registrar.”
[19] The applicant
responded to the email on the same day saying:
‘
Dear
Mr Naidoo, is it possible to have background to this fee increase. I
look forward to hearing from you. Dr B Mhlaul’
[20] He said that such
increases happened annually and once council had decided on the
matter, the Departments had to implement
those decisions, failing
which they would be committing serious misconduct. According to him a
head of one of the Departments communicated
to the applicant that the
fee charged by the University for exemption, or credit increase was
too low comparatively. The Applicant
showed him that communication.
So the applicant had that background but failed to effect the changes
until he made the changes
himself.
[21] In relation to count
4, Mr Naidoo said that an invitation to attend the meeting of 9
January 2013 specifically indicated that
the applicant had to present
a report on the selection of new candidates. She did not attend the
meeting neither did she give him
a report to present. He testified
that the registration of students at higher learning institutions had
become the focal point
at the beginning of the year so much so that
of officials of the National Higher Education Department required to
be briefed regularly
on it. He said that the applicant was compelled
to attend the meeting and present her written or verbal report as he
and the Principal
would also address the meeting.
[22] On 12 December 2012,
Mr Naidoo issued an email to the Applicant, pertaining to count 5,
seeking to be furnished with information
relating to various issues
including criteria used in the selection of student assistants, the
breakdown of items that were to
be accommodated by Applicant’s
registration budget and he asked for a copy of the advertisement to
be put on a newspaper
and the name of that newspaper. The information
was to be furnished to Ms Mkhize on the next day. That information
was relevant
to the state of readiness of the University in selecting
and the registration of new students for 2013. The Applicant
responded
by email on the next day by saying:
‘
In
response to your email I wish to be enlightened if the application,
selection, admission and registration procedures that I developed
and
were approved by the last senate meeting have changed? Why and when?
What I am referring to is that according to this senate
approved
document, registration, planning is my responsibility and it has
always been my responsibility. Thank you. Dr B Mhlauli’.
[23] Mr Naidoo understood
the response to be a refusal to supply him with the information he
needed. He then issued another explanatory
email to her on the same
day, saying;
‘
Dear
Dr Mhlauli, it is unfortunate for you not to respond to the concerns.
Please allow me to remind you that you report to this
office any
referrals must be responded to. With regard to the selection and
registration, the vice-chancellor and principal, through
the office
of the executive director, had delegated t e registrar to oversee the
entire process which includes the centralization
of the budget. As
indicated to you, you were to be briefed of the developments which
were scheduled on Wednesday at 9 ‘o
clock. You were also
invited to the follow up meeting of the planning committee on the
same day. Unfortunately you were not at
work. In order to avoid any
duplication and [indistinct] shortcomings, please can now have your
responses’.
[24] Mr Naidoo said that
no response was ever forthcoming from the Applicant, his explanatory
email notwithstanding. He was concerned
about weaknesses he said
there were in the first registration semester where he said there was
quite a bit of congestion at some
of the steps during that
registration process. He conceded that at operational level the
applicant was responsible but added that
at strategic and executive
levels the Registrar featured.
[25] Mr Naidoo then
testified in respect of counts 8, 9 and 10 in a similar manner as
with the previous counts.
[26] The Applicant
testified in defense of herself. She began with a background of the
difficulties she said she experienced when
she assumed her duties,
saying she was not inducted which meant that no job description was
given to her. The result was that within
a month of her starting to
work there were clear communication channel issues. She began to
receive instruction from Mr Naidoo
through her subordinates. In some
instances she would issue instructions only to be told by
subordinates that different instructions
were given to them. To
resolve that problem she wrote an email dated 13 March 2008 to Mr
Naidoo asking for a meeting to resolve
the issues and to be informed
what her role and responsibilities would be. She was no favoured by
any response to that letter.
[27] There was no
improvement in the working conditions and therefore she wrote an
email to the Deputy Vice-Chancellor Academic,
Professor Zingu, dated
7 April 2008. Again she was calling for a meeting to clarify unclear
lines of communication between her
office and that of the Registrar,
whom she accused of interfering in her responsibilities in the
admission, registration examinations
and graduations. At her instance
a meeting of Mr Naidoo, Prof Zingu and the applicant was convened.
She was informed that Mr Naidoo
used to perform the functions
allocated to her. As she was appointed to assist him, Mr Naidoo was
asked to create space for her
so that she could work freely when
attending to the matter of roles and responsibilities. She said that
no such space was given
to her by Mr Naidoo. It was graduation
period. After that they had to prepare for the admission and
registration of students. She
convened meetings with role players and
Mr Naidoo never offered any assistance to her.
[28] When she asked for a
budget to cater for the registration process Mr Naidoo refused with
it. He also refused to have her move
to a new office allocated to
her. She had no computer and office telephone until the intervention
of a Director for HR. Mr Naidoo
refused to have her attend an
off-campus training that was relevant to the performance of her
duties. At the beginning of the second
semester of 2008 she was even
served with a summons to appear before a disciplinary hearing, which
hearing never materialized.
The University had problems in 2009
leading to the appointment of external consultants. She reported her
problems to those consultants.
Nothing came of it. A new
Vice-Chancellor was appointed and in 2010 she reported her problems
to him as well. Mr Ngcamu an organizational
Development Officer was
appointed in 2010. He worked with two ladies. The applicant wrote a
letter addressed to Mr Naidoo requesting
the intervention of Mr
Ngcamu. Mr Naidoo consented to such request and the applicant was
interviewed by Mr Ngcamu and his team.
Nothing turned on the
intervention by Mr Ngcamu.
[29] In 2011 the
applicant reported her problems to the Executive Director In the
office of the Vice-Chancellor. She learnt that
her colleague, the
Deputy Registrar Policy had made similar complaints about Mr Naidoo.
Advocate Ndaba was appointed by the University
to attend to the
complaints. He held various group sessions in a kind of team building
workshop with employees of the Registry
Department. In Applicant’s
group it transpired that the main problem was the absence of a job
description for each Deputy
Registrar and Advocate Ndaba supplied a
copy of the job description for the whole Department. Any further
interventions did not
help to resolve her miseries to her
satisfaction as her exclusion from the attendance of important
meetings continued even after
she had authored and presented a
document entitled ‘selection, admission and registration of
students’ to all the faculty
boards and the senate at the end
of 2012. At one stage she was questioned by the Vice-Chancellor on
why she articulated her complaints
to the Deputy Vice-Chancellor
Academic instead of reporting to her line manager.
[30] On 9 January 2013,
she wrote a letter of complaint about a parallel registration
committee and addressed it to the Deputy Vice-Chancellor,
requesting
an urgent intervention in the matter. On the next day she was served
with a notice of intention to suspend her, to which
she had just 30
minutes to respondent. It was served on her at 15h30 while she was at
D Laboratory. She had to rush to her office
to draft a response and
find a student assistant to send the response through. She had to
come to terms with the pain of being
served with the notice and to
deal with its urgency.
[31] On 11 January 2013,
at about 09h00, Mr Nkabinde served her with a notice of suspension,
also telling her to do the hand-over
with Mr Naidoo. The notice
suspended her with immediate effect, pending the holding of a
disciplinary hearing with immediate effect.
She was to leave the
premises of the University with immediate effect upon being served
with the notice. She was also required
to hand over to Mr Naidoo all
details and plans that she had regarding the 2013 registration. Six
items of such details were listed
in the letter. She said that the
notice confused very much as she had not slept well due to the notice
of intention to suspend
and due to the fact that she was at the end
of a long hard working week. Some of the information sought was
public knowledge and
it confused her to be asked to hand it over. To
furnish appropriate statistical information she needed help from
another person.
[32] Just after finishing
reading the letter two telephone calls came in for her. One came from
a student representative council
member, Mr Mpanza, telling her not
to leave as he was coming to her office. Another came from Mr Xaba
who informed her that Mr
Naidoo wanted to see her at the HR offices,
which were a distance away from hers. She had a problem of where and
how she had to
do the hand-over if Mr Naidoo was at the HR Offices.
Having been told that Mr Naidoo was at the HR offices she turned to
Mr Nkabinde
and said that she was not going to be able to handover
but she said it using IsiXhosa, her home language. She started
packing her
belongings and a number of people congregated in and
around her office, including Mr Mpanza. Mr Mpanza told her he came to
fetch
her to go to the HR offices where there was a meeting of Mr
Naidoo, the HR Director and Mr Mpanza. Mr Nkabinde reacted by shaking
his head and she conveyed that message to Mr Mpanza. At about 10h00
she was escorted to her car and she left the University premises,
having been suspended by the very Vice-Chancellor from whom she had,
on a number of occasions, elicited help.
[33] She spent two weeks
at home and in that period she took ill and had to consult Professor
Mkhize, a Psychiatrist. He put her
on treatment for six months. Then
either on 4 or 5 February 2013, a Monday, Mr Nkabinde with another
colleague arrived at her house
to serve her with a copy of a charge
sheet. On reading the charges her medical condition worsened. She
gathered strength and on
Friday she began to work on her responses to
the charges as she was required to do within ten days of the receipt
of the charges.
The date of hearing was 20 February 2013. A number of
emails of various dates were referred to in the charges. She needed
them
to enable her to respond to the charges. She first
telephoned Mr Nkabinde who referred her to his secretary as he was
not
in his office. The Senior Director of legal services she tried to
contact was not available.
[34] The Applicant then
wrote a letter requesting emails mentioned in the charges and sent it
on 11 February 2013 by fax to the
Vice-Chancellor. When she was not
favoured with a response, she wrote another letter on 14 February
2013, requesting for documents
and an extension of time by 5 days to
submit her response. She was not feeling well on that day and she
went to consult with her
Psychiatrist. On 15 February 2013, Mr
Nkabinde and his colleague arrived at her house to give her an
envelope which once opened
had about 35 documents. She signed for the
delivery. She made an appointment with her lawyer who helped her
formulate her responses
to the charges.
[35] On 19 February 2013,
she followed up the request of the extension of time to submit her
response but the Vice-Chancellor’s
secretary told her there was
no response to her request. She also met her lawyer on the same date
to finalize her responses and
a letter. They arranged to meet early
on the next day at the attorneys’ offices. She fell ill as a
result they finished the
letter late and faxed that at about 09h45 on
20 February 2013. The letter requested that a new date of hearing be
set and communicated
to her lawyer. It also requested further
information. It was then faxed and a telephone call was made to the
Vice-Chancellor’s
secretary who acknowledged its receipt. The
secretary confirmed also that the disciplinary enquiry was
proceeding, with Mr Jafta
as the initiator. Mr Luthuli, her lawyer
telephoned Mr Jafta who said that the hearing had finished and the
chairperson has already
left. The Applicant left offices of her
lawyer and went to consult her Psychiatrist. At her request a medical
certificate was sent
to the University and she confirmed its receipt
when she telephoned the Secretary of the Vice-Chancellor. Further
correspondence
was entered into between her lawyer and one for the
University.
[36] On 25 March 2013, a
letter terminating her employment with the University was delivered
at her house. She took the letter to
her lawyer who, in turn wrote to
the University asking for information on the internal appeal
procedures but no response was given
to that letter. The applicant
was dismissed without being given a chance to give evidence in
mitigation after she was found guilty
of all 10 counts she had been
charged with.
[37] In her evidence, the
Applicant proceeded to testify on each count of misconduct. Her
written responses are encapsulated in
the award and shall not be
repeated here. In respect of count 2, she said that ordering the
megaphones was not her job but she
had volunteered to order them due
to the lack of funds by the protection services whose duty it was to
make that order. She said
that she did grant the final authorization
of the megaphones in the computer system as she had no reason not to.
Mr Xaba declined
to supply her with a document to support her claim
as it would be obvious that, if she produced it, she would have
obtained it
from him, a violation of one of the conditions of her
suspension. In respect of count 3, she admitted asking for a
background to
the fee increase. Her evidence was that the fee
increase was part of the matters for discussion in 2010 where she was
also involved
but that the Vice-Chancellor expunged it from the
agenda then. She was surprised to be told that the fees had been
increased and
wanted to know how it came about.
[38] In respect of count
4, the Applicant was of the view that Mr Naidoo had nothing to do
with the convening of meetings for registration
as it was, and had
been for the past five years, her prerogative to do so. It surprised
her to be called to such a meeting by Mr
Naidoo. She regarded his
conduct as interfering with the performance of her duties, something
she had been complaining about for
a while. She said that the past
experience of the University was never to charge people who were
invited to meetings but did not
attend. The attendance register would
merely indicate those present, apologies made and indicated
absentees. Even those who did
not attend senate meetings were never
charged, she said. She added that Mr Naidoo knew how busy she was in
that week and should
have understood that it was not possible for her
to attend. In respect of count 5 she said that it was fair of her to
have asked
Mr Naidoo if there was a change in procedures which had
been adopted by Senate since their last meeting. She regarded the
contents
of the report sought from her as a matter falling within her
domain of work in respect of which Mr Naidoo had no say, as with
count
4. She said that Mr Naidoo was exhibited an autocratic style of
management and that he gave de-contextualized instructions, showing
communication problems they were experiencing in the Department. She
said that had he responded to her question she would have
been able
to give the report he asked for, as she gave the report on 5 December
2012.
[39] In relation to count
8, the Applicant said that the meeting forming the subject matter was
convened at the Senate Chamber for
academic heads of departments. The
count is about a failure to invite Ms Mkhize, a liaison officer
between the University and the
media, into the meeting. The Applicant
said that she did not think that Ms Mkhize was to be invited to
attend that meeting. In
any event she did not know that Ms Mkhize was
already waiting outside the Senate Chamber when Mr Naidoo asked that
Ms Mkhize be
invited to attend the meeting. For Ms Mkhize to be
waiting, it meant Mr Naidoo had invited her to the meeting without
him telling
her, again interfering with the performance of her
duties. She denied disallowing Ms Mkhize from entering the chamber.
She said
that if Ms Mkhize had come into the meeting she would not
stop her as she had not stopped a head of mathematics department who
was not supposed to be there.
[40] Count 9 relates to
an alleged failure of the applicant on 23 May 2012 to convene a
meeting to discuss, inter alia, registration
issues, when she
responded to Mr Naidoo’s instruction on the same day by saying
that she had a problem with de-contextualized
instructions from him.
She said that it was unfair for the employer to wait for about a year
to charge her when she was mostly
at work in that period. Her main
problem, she said, was that Mr Naidoo did not induct her upon her
appointment as a result of which
she worked independently but he
would still just come and give her instructions out of the blue. As
with count 3 she said that
she wanted him to give her background to
the instruction.
[41] The last is count 10
which relates to the applicant having given an instruction in January
2011 to a faculty officer, Ms Mthembu,
to change and increase a
PreTech student examination mark and to further unblock the student
without following a due process and
no re-marking having taken place.
She said that for the period 27 January 2011 to February 2013 nothing
prevented the University
from charging her with this misconduct. She
said that, in any event she had discussed the matter with Mr Naidoo
before going on
her sick leave and he agreed to the change being
effected and that she therefore had committed no wrong. She compared
the case
with of another student which she said was wrongly approved
by Mr Naidoo. She picked up the wrong approval for the graduation.
She asked Mr Naidoo about it but he offered no explanation and yet he
was never charged for it.
Chief findings of the
Third Respondent
[42] The Commissioner
issued an award by examining evidence and submissions count by count.
She therefore made individual findings
per count. It will do justice
to quote each finding made and I do so verbatim below.
Count 1
‘
The
reason Applicant gave for not complying with the instruction that it
was impossible to do so, is not true since it obviously
was possible.
Her alleged belief that it was impossible is not reasonable and is no
defence to the charge, but at best a mitigating
feature. It clearly
was not impossible to do the handover, and if she had said that she
was too upset and not in a state of mind
to deal with it, that may
have ameliorated her insubordination, but that was not her response.
She should have met with Naidoo,
and done the handover as best she
could in the circumstances so as to ensure that the registration
process was not disturbed. In
these circumstances I find that the
Applicant is guilty of misconduct. I deal with sanction later in the
award…
Count
2
If
the Applicant had authorised the purchase her failure to inform
Naidoo that she had done so and to have responded in the rude
way in
which she did constituted insubordination and misconduct on her part.
The probabilities point to Applicant not having authorised
the
purchase. Xaba said he continually reminded her and there would be no
need if she had done what was required of her. On balance
I prefer
the version of Xaba and find that Applicant failed/refused to
authorise the purchase of the megaphones and then responded
rudely to
Naidoo when he made enquiries about it. This had the effect that the
process was handled through a different account
because of the
Applicant’s obstructive attitude…
Count
3
Naidoo’s
email made it clear to Applicant that it was a Council instruction to
amend the fees. To ask for particulars in the
circumstances is
unreasonable and leaves me with the impression that she was simply
being defiant. If she had a genuine concern
that there was a mistake,
as she now seems to be saying, then surely she would have made that
clear at the time. The tone of her
e-mail does not indicate that
there was some mistake in the figures. Applicant’s conduct
constitutes insubordination. It
was her responsibility to adjust the
fees, she received a legitimate instruction to do what was required
of her and she refused
or prevaricated such that Naidoo had to make
the adjustment himself…
Count
4
In
my assessment the Applicant’s excuse for refusing to attend the
meeting is unacceptable. Naidoo, the Registrar, and her
line-manager,
called the meeting to deal with registration, a meeting that was to
be attended by the Principal and Vice Chancellor
and at which the
Applicant had a role to play. Her deliberate refusal to attend
because she did not herself call the meeting or
was too busy
constitutes in these circumstances insubordination. Applicant holds a
responsible position in the institution. Registration
is vital and
the process has to run smoothly. Even if she had some objection to
the Registrar calling the meeting, and not asking
her to call it,
simply ignoring the meeting when she had an important role to play,
without saying she would not attend, is most
irresponsible…
Count
5
If
the person to whom one reports, and in this case the Registrar, who
holds a senior position in the institution, instructs such
a person
to prepare a report he says he needs then he is entitled to have the
report prepared and not have to engage in a debate
as to the
necessity for it. What Applicant did was to fail to comply with the
instruction without refusing point blank but nonetheless
her conduct
appears to be designed to frustrate Naidoo in the performance of his
duties. It is clearly insubordinate; it was not
a genuine request for
information that would have been necessary to prepare an appropriate
report. It was instead, as Applicant
explained, a refusal to do what
she was instructed to do unless she was satisfied that there had been
changes made to the registration
procedure…
Count
8
It
is common cause that an instruction was issued from the office of the
Vice Chancellor which said that Mkhize should attend the
meeting. It
is also common cause that Naidoo sent an e-mail setting this out. It
is common cause that Naidoo was at the meeting
and he requested the
Applicant to permit Mkhize to attend the meeting, and it is also
common cause that she did not attend. Naidoo
said that it was because
Applicant refused to allow her to attend and Applicant’s
position was that the meeting was for the
academic departments and
marketing had no business being there. It is most improbable in those
circumstances that Naidoo would
not have told her the reason why the
Vice Chancellor wanted Mkhize to attend the meeting, and that she was
waiting outside for
permission to come in. Applicant’s refusal
to allow Mkhize to attend the meeting constitutes insubordination…
Count
9
It
is clear that there was an instruction that Applicant decided not to
obey. Her refusal to comply with the instruction constitutes
insubordination. The delay in raising the allegation is explained by
the Respondent that there was an intervention to mend relationships
in the department and it would have been inappropriate to pursue it
at that time. I find this to be an acceptable reason and that
when
the intervention failed it was not unfair to introduce the event as
one of the charges of misconduct…
Count
10
[a]
It is common cause that Applicant changed the student’s mark
without following the required
process. Whether it was a legitimate
change is not relevant. The fact is that she did not follow the
process. Applicant’s
excuse is that Mthembu, the underling,
should have known and followed the process, which seems improbable,
but even then she surely
should have checked that the process had
been properly adhered to. On the common cause facts Applicant is
clearly guilty of misconduct
as reflected in the charge.
[b]
Naidoo’s evidence adequately explained the reason for the delay
in raising the allegation.
General
Motivation and analysis of evidence and argument
Substantive
fairness
[6.1.1]
The applicant spent a disproportional part of her evidence in chief
complaining about
Mr. Naidoo and his management style. Her perception
she said was that he lacked leadership skills and her clear inability
to work
with him in a normal productive manner demonstrated that the
relationship between the two of them was very strained.
[6.1.2]
On applicant’s own evidence the relationship appears to have
broken down. There
is nothing to suggest that if she were to return
to work the situation would be any different.
[6.1.3]
The applicant’s complaint that there was no proper job
description is no excuse
for her not to do what she was instructed to
do. She held a senior position and there were attempts (endorsed by
Naidoo) to deal
with the problems through a number of interventions.
The fact that there was no job description is no excuse for
insubordination.
[6.1.4]
The accumulated effect of Applicant’s insubordination was to
destroy the employment
relationship. Each event that constituted
misconduct cannot be viewed in isolation as it was part and parcel of
a pattern and taken
cumulatively was serious, so serious in fact that
dismissal is in my view a fair and appropriate sanction.
[6.1.5]
I find that the dismissal was substantively fair.
Procedural
fairness
[6.2.1]
Applicant chose not to attend the disciplinary hearing. In the result
when it commenced
she was not present. She was instead busy in her
attorney’s office drafting a reply to the allegations. The
response was
sent to the Respondent approximately forty-five minutes
after the start of the hearing, and after it had been completed.
Applicant
did not inform anyone that she would not attend, nor did
she send a representative. If Applicant was well enough to be in her
attorney’s
office at that time, she was certainly well enough
to attend the disciplinary hearing, even if it was to apply for a
postponement
if she was sick or needed more time to prepare or to ask
for relevant documentation. Applicant only visited Dr Mkhize, a
specialist
psychiatrist, after she heard that the disciplinary
hearing had been held, who recommended that she take sick leave that
day. While
Applicant claims she wrote a letter asking for
documentation, she had no right to presume that the matter was
postponed without
confirmation and she failed to attend at her peril.
Applicant chose not to attend the disciplinary hearing and cannot
subsequently
claim that the dismissal was procedurally unfair because
it took place in her absence. In my opinion Applicant was given
sufficient
time to prepare a reply to the notice of intention to
suspend, which she did and submitted.
[6.2.2]
In the circumstances I find the dismissal procedurally fair.”
Grounds for review
[43] The Applicant
submitted that the Third Respondent committed a gross misconduct in
relation to the duties of the Commissioner
when she made her findings
in respect of each of the eight counts, inter alia, in that:
Count one:
It was impossible to do the hand-over with Mr Naidoo because she had
been suspended
with immediate effect. Also, because Mr Naidoo was at
the HR offices, a distance away from hers and because the suspension
notice
listed a number of things she had to do as a hand-over which
required a period of about a week.
Count two:
She approved the authorization for the purchase of megaphones and
there was
a document to prove it.
Count three:
Mr Naidoo’s instruction to amend all records to reflect the
adjusted student fee
increase was emailed to the applicant on 08
January 2013 and no time frame was mentioned therein for the
amendment of the records.
The applicant was suspended on 11 January
2013. When the applicant testified at the arbitration, she stated
that the appropriate
committee to approve the fee increase was one of
the Council committees, namely, the finance and remuneration
committee. Mr Naidoo
was unreasonable to expect someone occupying a
senior position like the one occupied by the applicant to simply
carry out any instruction
without seeking clarity if there were
issues to be clarified and that there was nothing wrong with the
enquiry made by the Applicant
in this regard.
Count four:
To a charge of failing to attend the Registration Planning Meeting
and for
failing to make an apology, the totality of the evidence
presented at the arbitration clearly indicated that it was common
cause
that it used to happen that some officials or employees of the
First Respondent would be invited to attend the meetings, including
the Senate meetings but they would not attend such meetings and they
would not apologize for failing to attend. It was common cause
also
that such officials or employees were not disciplined for failing to
attend the meetings without any apology. Further, it
was common cause
that the Senate Meetings were most important meetings at the First
Respondent’s workplace.
Count five:
To a charge of failing to give Mr Naidoo the report on registration,
in terms
of the written communication which took place between the
applicant and Mr Naidoo on 12 December 2012, there was no refusal by
the applicant to give Mr Naidoo the report he wanted. The applicant
merely sought clarity from Mr Naidoo on whether or not the
application, selection, administration and registration procedures
which she developed and which were approved by the Senate Meeting
had
changed. Thus, it formed part of the applicant’s testimony at
the arbitration that she sought clarity from Mr Naidoo
on the issue
because it came as a surprise to her that Mr Naidoo had decided to
usurp her function without any consultation with
her. It was
reasonable and or expected to have someone occupying the position of
the applicant to discuss issues with the line
Manager, especially, if
there was uncertainly on why things were to be changed or done
differently.
Count eight:
In respect of the charge for defying the instruction to invite Ms
Mkhize and for having
barred her from attending a meeting, it formed
part of the applicant’s testimony at the arbitration that she
did not see
Mr Naidoo’s email in question as same would have
reached her office after she had already left for the meeting. When
Mr Naidoo
discussed Ms Mkhize’s invitation with her in the
chamber, she explained to him as to who were the relevant officials
to attend
the meeting, that she never barred Ms Mkhize from attending
the meeting, that she would not have stopped her if she entered in
the chamber as with the head of mathematics department who was in the
meeting but was not prevented from attending the meeting although
he
was not supposed to attend it.
Count nine;
To a charged of failing to convene a meeting to discuss amongst other
things registration,
a charge emanating from the incident which
allegedly took place on 23 May 2012 and which the first respondent
always knew about,
the first respondent failed to discipline the
applicant for the said allegation within a reasonable period. The
first respondent
was always aware of the alleged misconduct but it
decided not to charge the applicant with it because Advocate Ndaba
was trying
to intervene to correct the relationship amongst the
employees. The relevant charge sheet is dated 04 February 2013 and it
was
served on the Applicant after the said date. There was no
intention by the first respondent to discipline the applicant for the
alleged misconduct and that it only decided to charge her for same
after there were new allegations of misconduct against her.
Mr Naidoo
failed to link Advocate Ndaba’s intervention with the period of
the relevant allegation. The first respondent conveniently
used
Advocate Ndaba’s intervention as a scape goat herein. The
employer’s failure to discipline the employee for misconduct
within a reasonable period amounts to the employer’s waiver of
its right to discipline such employee. In relation to the
merits of
the charge, the applicant testified at the arbitration that’s
she did not refuse to comply with Mr Naidoo’s
instruction but
she indicated her concern about the type of instruction issued to her
by him.
Count ten:
To the charge of instructing the Faculty Officer to change and
increase
a Pre-Tech Student examination mark and for unblocking the
student without following a due process and no remarking taking
place,
emanating from the incident which allegedly took place in
October 2010, no valid reason was given by the First Respondent at
the
arbitration as to why there was such a lengthy delay in charging
the applicant for this charge. The first respondent’s lateness
in this regard was worse and that it definitely waived its right to
discipline the applicant for the alleged misconduct. It was
common
cause that the issue about assisting the student was discussed and
agreed upon by the applicant and Mr Naidoo. The applicant
testified
that all she did was to ask the Faculty Office to assist the student
accordingly and that she never instructed her to
ignore or not to
follow the applicable procedures when assisting the student. Her
evidence was largely supported by that of the
Faculty Officer, Ms
Mthembu and by that of Mr Naidoo himself. The Applicant testified
that Mr Naidoo, Chetty and the then acting
HOD of the Electrical
Department wrongly assisted Mr Sampeyi to graduate in 2012 instead of
2013 and that they did this in contravention
of the applicable Rules
and Regulations of the first respondent but they were never charged
for this.
Opposition to the
review application
[44]
In
opposing the review application a number of submissions were made by
the Third Respondent. It was, inter alia, contended that
as assessed
against the test of reasonableness, the award is one which is both
reasonable and rational. In arriving at her decision,
the Third
Respondent:
1
gave both parties a full opportunity to present their respective
versions in evidence;
2
correctly identified the issue before her, being whether or not the
dismissal of the applicant
was substantively and procedurally fair;
3
understood the nature of the dispute which she was required to
arbitrate, being whether or
not the applicant was guilty of any or
all of the acts of misconduct complained of and, if she so found,
whether the sanction of
dismissal was a fair sanction;
4
dealt with the substantial merits of the dispute; and
5
arrived at a decision which another decision maker could and would
have arrived at on the
evidence before her.
7
As such, the Award does not fall to be interfered with on review.
[45] The Applicant was
said to have categorised her grounds of review as ‘gross
misconduct’ and ‘gross irregularity
in the conduct of
proceedings’ on the part of the third respondent. As may be
seen from the complaints which form the several
bases for such
alleged grounds of review, the applicant’s various challenges
to the award were said to be amounting to nothing
more than the
applicant’s disagreement with several of the third respondent’s
findings of fact. The Applicant was described
as attempting to
prosecute an appeal, rather than a review. In respect of each ground
the submission was that the Third Respondent’s
conclusions do
not evince a disregard of the evidence before her, and do not amount
to gross misconduct as envisaged in section
145 of the Act. A
response to each ground of review for each count was then deliberated
upon.
Evaluation
[46]
In respect of each of the eight counts it is to be determined whether
the decision reached by the third respondent is one that
a reasonable
decision maker could not reach.
[2]
In
Herholdt
v Nedbank Ltd and Others
[3]
the court explained the review test to be followed in applications as
the present in the following terms:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2) (a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(2) (a) (ii), the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach
on all
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be attached to
particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence if their
effect is to render the
outcome unreasonable.’”
[4]
[47] Therefore, the
success of this application lies in determining whether the
Commissioner misconceived the nature of the enquiry
or arrived at an
unreasonable result.
1.
Substantive fairness
Count1:
[48] The Applicant
confessed that she did not do the hand-over as she was directed in
the letter of suspension. The question is
whether her explanation is
reasonable in the circumstances of this case. She did not know where
Mr Naidoo was except what was told
to her. For the instruction to be
reasonable, Mr Naidoo ought to have availed himself as her supervisor
to receive the hand-over.
His whereabouts became a subject of dispute
in this case. It was not the responsibility of the Applicant to have
to go search for
him either in his office or at the HR offices. Mr
Naidoo ought to have come to the office of the Applicant as her
normal place
of work. The applicant would not only hand over the
electronic information in the computer she worked with but also all
hard copies
of any documents lying in her office as were identified
in the suspension notice. Mr Naidoo is the one who should have
directed
the Applicant on how to do the hand-over within the time
then available on that day, and indeed it could be done. He shirked
his
responsibility as her supervisor and so made the carrying out of
the instruction impossible. The Applicant, who understandably was
emotional then, was entitled to her suspension being carried out in a
dignified manner. To move her around the campus in search
of Mr
Naidoo when the news of her suspension was spreading would be unfair.
Therefore the absence of Mr Naidoo at the applicant’s
office to
accept the hand-over made the instruction given to her unreasonable.
She was entitled to an acquittal on this charge.
Count 2:
[49] During the
arbitration hearing a document marked as exhibit ‘T’ was
accepted. According to Mr Xaba such a document
was generated when a
final electronic approval is granted by the Deputy Registrar in the
process of authorising a purchase. This
document bears a serial
number with letter RY. The significance of this is that at some point
in this debacle the Applicant did
approve the purchase of the
megaphones. Before the Applicant was charged with this misconduct, an
investigation into her computer
system ought to have been conducted.
It would have revealed the time when she approved the purchase and
then the First Respondent
would take it from there. She was entitled
to an acquittal on this charge.
Counts 3 and 5:
[50] There was no
question about it. Mr Naidoo was the line Manager and supervisor of
the Applicant. The Applicant was thrown a
life line when she was
reprimanded for going pass Mr Naidoo and communicated directly with
the Deputy Vice-Chancellor on a matter
involving Mr Naidoo. The
corporate ladder exists for a reason and it has to be respected for
the mutual co-existence of all staff
working together. The grievance
procedures exist for any disgruntled employee to follow. The two
instructions given to the applicant
by Mr Naidoo were clear,
reasonable and called for action on the part of the Applicant. The
remarks she made in count 3 were highly
provocative in the
circumstances. It was not for her to enter into an intellectual
debate with Mr Naidoo. A decision had been taken,
obviously in her
absence, by a body that had the power to do so and hers was simply to
give effect to it. The instruction on count
5 was similarly clear,
simple and called for compliance. The Applicant somehow imagined that
she was by rank equal to Mr Naidoo
and could work independently
without him. The remark that Mr Naidoo was interfering with her
duties is ridiculous as flying on
the face of a clear organogram of
the Registrar’s Department. In this respect the Commissioner
committed no defect in terms
of section 145 of the Act and her award
is not only sound but is reasonable.
Count 4:
[51] From the facts of
this case it became clear that there are, at least, two types of
meetings attended by the University staff.
The one is by invitation
of the convener and the other is attendance upon instruction by
senior personnel. A meeting by invitation
would understandably
accommodate absenteeism without an apology and no disciplinary action
should necessarily follow. An instruction
by a supervisor to an
incumbent to attend a meeting is a directive for that incumbent to
perform his or her duties in a prescribed
manner. Once that
instruction is given in a clear, reasonable and is given in a fair
manner, compliance with it becomes obligatory.
The Applicant was
obliged to attend the registration planning meeting of 9 January
2013. Her failure to attend the meeting without
an apology or
plausible explanation made her guilty of this charge.
Count 8:
[52] It remained common
cause that the Applicant might not have read the email informing her
of Ms Mkhize’s attendance of
the meeting. The Applicant
expressed her opinion on whether the attendance of the meeting by Ms
Mkhize was appropriate. She was
talking to her supervisor and she was
entitled to be wrong. It was left to the supervisor to own up to his
position as supervisor
by issuing a verbal directive that Ms Mkhize
attends the meeting. He did not do so and he allowed the opinion of
the Applicant
to carry the day. The Applicant was never proved to
have barred Ms Mkhize from attending the meeting. She should have
been acquitted
of this count.
Counts 9 and 10
[53] Both of these counts
relate to a delayed decision to charge the Applicant. It was
incumbent on the First Respondent to produce
evidence of a link
between its decision to delay taking a disciplinary action and the
intervention of Advocate Ndaba. The evidence
of such a link remained
very weak. The probabilities are that the intervention of Advocate
Ndaba came after the third respondent
had waved its decision to
discipline the applicant and it then wanted to renege on its
decision. On the aspect of a waver alone
the applicant ought to have
been acquitted of the two counts. As a passing remark, on the merits
of the matter count 9 would have
been dealt with as counts 3 and 5.
Evidence did not sustain a conviction on merits in count 10.
2 .
Procedural Fairness
[54] The First Respondent
had to prove that in dismissing the Applicant it followed a fair
procedure. The Third Respondent’s
reasoning, on the evidence
led by parties, which led to the decision she made was indeed flawed
and amounted to gross irregularity
in the conduct of the arbitration
proceedings. It led to her issuing an unreasonable award. This is due
to the fact that the applicant
produced unchallenged evidence that:
·
She was
given insufficient time to respond to the notice of Intention to
suspend. 30 minutes given to her could not be reasonable
time for her
to respond to such a serious matter which took her by surprise. She
was confronted with
a
fait accompli
;
·
That she
was not given some documents which she requested for preparation
purposes. She corresponded with the secretary of the Vice-Chancellor
as a follow up of her request. She even asked for more time to make
her responses to the charges. This should have served as an
indication that she might not be ready for the hearing. It would have
been fair to telephone her on the morning of the hearing,
knowing she
had requested for more time to prepare;
·
That she
was not given an opportunity to mitigate before she was dismissed.
Notwithstanding her failure to pitch up for the hearing,
once a
guilty verdict was made, she was entitled to a further hearing
convened for mitigation and aggravation of sanction, and
·
That she
was denied an opportunity to lodge an appeal, the right of which is
stipulated in the Disciplinary Code of the first respondent.
[55] In respect of the
submission by the Applicant that she was denied an opportunity to be
heard and that she was dismissed despite
the fact that she had
submitted a medical certificate, the Applicant contributed to her
misery. She had no reason to assume that
the hearing would not
commence as scheduled. The Applicant and her attorney ought to have
been at the hearing when the time of
it came. No excuse was proffered
why they met at the attorneys’ office instead of rushing to the
venue for hearing and once
there apply for the postponement of the
matter to sort out the outstanding issues. The chairperson could even
have been asked to
order the First Respondent to produce document
that the Applicant was still seeking. These observations
notwithstanding, the Third
Respondent erred by simply finding the
dismissal to be procedurally fair because the Applicant chose not to
attend the hearing.
She consequently issued an unreasonable award in
this respect.
[56] Out of eight counts
that the Applicant was found guilty of by the Third Respondent, she
has been successful in respect of five,
which are counts 1, 2 8, 9
and 10. She is not successful in respect of three counts namely 3, 4
and 5. Numerical superiority of
her success in this regard is not the
sole deciding factor to her fate. She remains guilty of three charges
of gross misconduct.
Her assertion that she can still work with Mr
Naidoo was not supported by her own evidence as she treated him with
disdain. She
has previously been reprimanded by the Vice-Chancellor,
a fact that she might not work well with him as well. When her clean
record,
her experience, her academic achievements and the full
implications of a job loss at the current times are seen against the
seriousness
of her misconduct, it becomes clear that reinstatement
she asked for is not the appropriate route to take. A continued
employment
relationship would be intolerable. For procedural
unfairness the applicant is entitled to compensation.
[57]
I conclude by finding that the dismissal of the Applicant by the
First Respondent was substantively fair but procedurally unfair.
Order:
1.
The
arbitration award issued in this matter by the Third Respondent is
review and set aside only to the extent that the dismissal
of the
Applicant was procedurally unfair
2.
The First
Respondent is ordered to compensate the Applicant in an amount of
money equivalent to four months of the salary she earned
on the date
of her dismissal. This compensation is to be paid within twenty (20)
days from the date of the order.
3.
No costs
order is made.
_______________________
Cele
J.
Judge
of the Labour Court of South Africa.
APPEARANCES
For
the Applicant: Mr Z.Luthuli
Instructed
by: AP Shangase & Associates
For
the Respondent: Adv.G van Niekerk SC& Adv.K Allen
Instructed
by: Jafta Incorporated
[1]
No. 66 of 1995 as amended (“the
Act”).
[2]
Sidumo
and Another v Rustenburg Mines Ltd and
Others
(2007) 28
ILJ
2405 (CC).
[3]
(2013)
34
ILJ
2795 (SCA) at para 25.
[4]
See also
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
(2014) 35 ILJ 943 (LAC) at
paras[14] to [21]