THE LABOUR COURT OF SOUTH AFRICA , GQEBERHA

Not Reportable
Case No: PR 114/23

In the matter between:
NELSON MANDELA UNIVERSITY Applicant
and

COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent

FRANCOIS DU T OIT N.O. Second Respondent

NATIONAL TERTIARY EDUCATION UNION Third Respondent

NICOLAAS LOUW Fourth Respondent
Heard: 29 January 2025
Delivered: 3 March 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date of hand down is deemed to be 3 March 2025 .

2

JUDGMENT


MAKHURA , J
Introduction
[1] This is an application in terms of section 145 of the Labour Relations Act
1 (LRA)
to review and set aside the arbitration award dated 2 May 2023 issued by the second
respondent (commissioner) under the auspices of the first respondent (CCMA) . The
applicant , Nelson Mandela University (University) also seeks substitution of the award
with an order that the dismissal of the fourth respondent (employee) was substantively
fair, alternatively remitting the dispute to the CCMA for a rbitration de novo before a
different commissioner . The application is opposed by the employee.
Background facts
[2] The employee was appointed by the University with effect from 1 April 2013 to
establish the new Bachelor of Emergency Medical Care programme within the
University’s Emergency Medical Department.
[3] He was charged with and dismissed for two allegations of fraud, contravention of
sections 5, 8.1.9 and 8.1.9.4 of the Code of Ethical Behaviour and contravention of the Anti-Fraud Corruption Policy. It was alleged that he submitted two fraudulent claims of
R21 120.00 and R18 000.00 in 2018 and 2019 respectively . In these alleged fraudulent
claims, t he employee claimed 96 hours and 76 hours which were:
‘purported to have been worked by yourself, which hours were never
worked on the platform / on the road as per the requirements of the

1 Act 66 of 1995, as amended.
3
secondary contract , resulting in you making financial gain and University
being financially prejudiced. ’ [Emphasis added]

[4] Section 5 of the Code of E thical Behaviour (Code) sets out the values of the
University to include integrity and taking responsibility. Section 8. 1.9, including 8.1.9.4 ,
specifically provides that employees have a duty to act in good faith towards the
University and that they sh ould receive no other benefits as a result of their association
with the U niversity than they are entitled to in terms of t heir contracts of employment.
The University’s primary focus was the charge of fraud.
[5] The University has a policy titled “ Policy on the Management of Secondary
Appointments ”, which regulates the secondary agreements or appointments (secondary
contract s). A secondary contract is defined as :
‘an additional contract entered into between the University and the employee for
work carried out for the university, by a permanent or contract staff member of the University, over and above the work / duties which the employee is required to discharge in terms of his / her primary contract, but taking into account flexibility allowed to academic employees. ’

[6] The objectives of the Secondary Appointments Policy include setting general
rules “in order to regulate the undertaking of work that is over and above an employee’s
normal workload, and to ensure that the Secondary Appointments are concluded within the parameters of the Terms of Reference” .
[7] Section 4 of the Secondary Appointments Policy sets out examples of work that
may be carried out in terms of the secondary contract . These are evening classes in
cases where academic employees are already fully occupied in terms of their primary workload and where a faculty requires a specialised lecturer to present a particular
module and a programme or policy development that falls outside an employee’s normal workload and which is undertaken to develop course material.

4
[8] The employee concluded the secondary contracts with the University,
represented by Nanette Smith (Smith) , in 2018 and 2019 respectively. These secondary
contracts are each contained in a one page document only and are in all material
respects the same. I reproduce the 2018 secondary contract below:
‘Query Approved Web Appointments with Financial Detail
…
Personnel Number : …
Personnel Name: Mr NE Louw
Routing Number: 2833558
State Date: 01-Jul-2018
End Date: 31-Dec-2018
Department: 2623
Department Name: Emergency Medical Care
Post: 9707
Post Description: Clinical Assistance
Campus: 11
Campus Name: Ocean Sciences Campus
Personnel Type: P1
Personnel Description: Permanent Academic Staff with a Secondary
Appointment
Appointment Type: 64
Appointment Description: T AC C PT +24 - M
Remuneration Type: A
Remuneration Description: Ad Hoc Claims
Monthly Claim: 0
Total Amount: 21120
No of Months: ’
[9] On 2 November 2018, the employee completed three separate intermittent
contract work claim form s for August, September and October 2018. These forms were
for the course or subject presented “EMC Assistance – VWIL300 + VWIL400” . For
5
August 2018, the employee claimed 8 hours for work performed on the first Saturday of
the month. For September 2018, he claimed that he worked on the first Saturday and
Sunday of the month for 14 hours and the third Saturday for 8 hours. In October 2018,
he claimed 20 hours for work performed on the second Friday and Saturday, 27 hours
for the third Friday and Saturday, and 19 hours f or the fourth Friday and Saturday. The
total hours c laimed was 96, amounting to R21 120.00.
[10] On 18 November 2019, the employee completed one form for September,
October and November 2019. The course or subject presented was “Lecturing
Assistance – VWIL300, VWIL400” . He claimed 24 hours for each month, totalling 72
hours.
[11] It is common cause that these claims were approved and the employee was paid
a total of R39 120.00. The University commissioned an investigation into various
alleged irregularities, which included the above transactions . The final investigation
report was issued on 12 May 2022. The investigation report made the following findings
in respect of the two transactions :
‘An amount of R39,120… was paid to Mr Louw for hours purported to have been
worked, which in fact were never worked. Mr Louw has admitted during the
interview and in a written submission that he never worked these hours on the
platform / on the road …’ [Emphasis added]
[12] In a summary of the interview notes signed by the employee on 18 March 2022
and the investigator , Nimmesh Karamdeo (Karamdeo), on 22 March 2022, the
employee admitted that the work he performed for the R21 120.00 claim “ might relate to
other activities / job requirements and not working on the road / platform ”. For th e 2019
claim and payment of R18 000.00, the employee admitted that he did not work the 72
hours “on the road with students (Clinical Platform), as is reflected on the contract claim
form” although he was “ involved in student activities that go beyond the normal office
hours and is directly related to the delivery of services to students ” and that he was
involved in activities that were not part of his normal duties .
6

[13] The claim forms do not require the employee to list the activities undertaken or
the nature of work he performed nor did it require him to stipulate the exact time when
he performed the work , that is, when he commenced and concluded the task .
[14] The employee’s unchallenged case was that he worked “ an exorbitant number of
hours during the year with students which is related to the student learning activities ,
that is beyond the normal office hours ” including the o rientation camp, Vasbyt event ,
Masiphakameni , the wilderness search, rescue hikes , Ironman and excursions which he
was never compensated for . The employee admitted that:
14.1 His after -hours or extra work on activities that were undertaken other than
on the road or on the platform were more than the hours reflected in the claim
forms;
14.2 The secondary contract claim that he had approved which reflects 72
hours with students on the road / platform is not correct or a true reflection in
relation to the extra work that he was actually claiming payment for ;
14.3 He did no t discuss with Smith that the contracts she had approved were
not for work on the road or platform; and
14.4 He was willing to pay back the amounts claimed because he had not
rendered the clinical training and should have been more transparent with the
nature of the claim.
[15] In his email dated 22 March 2022 to Karamdeo, the employee stated that:
‘As I said in the interview, I claimed the hours with a clear conscience because I
had worked many more hours than claimed in the secondary contract , but
acknowledge, once more that on a technicality, I did not do the work contained in the secondary contract. In retrospect I regret what I did, but I am prepared to work the time in now for no compensation.’ [Emphasis added]
[16] The above sentiments we re also echoed in an additional general comment s
attached to the email. The employee stated that the Clinical Training Grant allows for
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payment of employees for work performed other than working with students on the road
and that the after -hour activities listed in the minutes (i.e. the orientation camp, Vasbyt
event, Masiphakameni, the wilderness search, rescue hikes, Ironman and excursions) form part of the provisions of the Clinical Training Grant. He further argued that this led
him to submit the claim as he did – with a clear conscience – because he did not claim
outside the Clinical Training Grant. He once again offered to make things right by
working the hours because there was not sufficient transparency regarding t he deviation
from the contract.

[17] The investigation report concluded that the employee:
‘misrepresented himself to his line management when concluding two secondary
contracts in 2018 and 2019, respectively. Mr Louw was contracted to conduct clinical training with the students working on the platform on a need identified by
himself. However, at the time of contracting he knew that these contracts [were] meant to reimburse him for extra hour s that he alleges were worked without any
compensation; and Defrauded the University for his benefit by claiming the contracted hours while knowing that these were never worked for training the students on the platform …’
[Emphasis added]
[18] The report then recommended that corrective action be taken against the
employee for “ willingly d efrauding the University of R39 120 by misrepresenting the
claims against two secondary contracts in 2018 and 2019 for hours not worked to the prejudice of the University . In considering corrective action, Management should take
into consideration Mr Louw’s acknowledgement of wrongdoing and his willingness to pay back the funds or work in the hours ”. Consequently, the employee was charged
with defrauding the Uni versity.
[19] The disciplinary hearing against the employee was held on 13 July 2022. The
employee was represented by Professor Norman Kem p from the National Tertiary
Education Union (NTEU). The employee pleaded guilty to the charges as set out above
8
and the parties submitted mitigating and aggravating factors. The University submitted
in aggravation that the employee’s justification of his conduct was solely for his personal
gain and his belief or impression that he was entitled to submit the claim s by virtue of all
his after -hours activities . The Univer sity argued that the employee used his authority to
advance his own financial interest , that his conduct went against its values and that the
trust relationship had irretrievably broken down.
[20] The chairperson found that it was wrong for the employee to use the time spent
on other work to claim for what was not due to him and that the misconduct was
serious. He recommended that:
‘If retaining the employee’s service would not create any inconsistent application
of discipline amongst the University staff, I would recommend that the employee be issued with a final written warning valid for 12 months and that he repays the monies that were paid to him in the sum o f R39 120.00.
However, if the above proposed sanction would lead to inconsistent application of discipline at the University, I accordingly recommend that the contract of
employment of Nicolaas Louw must be summarily terminated.’

[21] The University dismissed the employee with effect from 30 August 2022.

The arbitration proceedings
[22] The employee referred an unfair dismissal dispute to the CCMA. He summarised
the facts as follows in his dispute referral form:
‘The employee was dismissed for allegedl y committing fraud by claiming for work
that he did which was outside the secondary contract he was appointed on. The
employee had no intention to commit fraud and thought he had the right to claim for work done, but not as contained in the secondary contract. The employee
pleaded guilty to the charge and offered to pay back the money, but the employer
did not accept his offer to pay back, and because he pleaded guilty found him
guilty and the sanction was dismissal. The employee pleaded guilty because he
9
felt remorseful about his erroneous claim and although he had no intention of
defrauding the employer, the employer has refused to accept it.
Because in a fraud case intent must be proved, and the employer has fai led to do
so we believe this is unfair dismissal.’
[23] The parties concluded a pre- arbitration minute. The employee argued that he
pleaded guilty as part of a plea bargaining agreement or settlement agreement that his
plea of guilty would attract a sanction short of dismissal, being a final written warning and was done without prejudice. The University disputed the plea bargain or settlement
agreement and any concess ion to a final written warning.
[24] The employee recorded that he had no intention of submitting fraudulent claims
despite his guilty plea at the disciplinary hearing. He contended that his claims “ fell
within the work for which he was appointed for Clinical Assistance, and that is why he
has stated throughout that he made the claims with clear conscience”. This was disputed and rejected by the University , which also argued that the employee was
intentional in his conduct.

[25] The employee disputed the University’s contention that the effect of his conduct
is that the trust relationship had irretrievably br oken down. He stated that this contention
by the University was based on a guilty plea and that he would change his plea to that
of not guilty duri ng the arbitration proceedings.
[26] Other than the change of plea, the evidence led at arbitration proceedings was
largely common cause on the material aspects of the dispute, as reflected under
backgroun d facts above. In his evidence, the employee testified that 14 hours may be
deducted from the hours claimed since this did not fall within the claimed period.
The award

10
[27] The commissioner started his analysis of the evidence and matter by considering
the nature of the charges and what the University was required to establish. Having
referred to the charges against the employee, the commissioner found that the
University had to establish that (1) the employee claimed the hours he had never
worked for, (2) that the terms of the secondary contracts required that the hours claimed
must be for work on the road or platform and (3) financial benefit to the employee and
financial lo ss to the University .
[28] The commissioner then found that the secondary contracts do not require that
the work must be performed on the road or platform. He observed that the University’s
conclusion that the work must be performed on the road or platform was based on what
Mugsien Rowland (Rowland), the complainant, said to the investigator, Karamdeo.
Rowland was not a witness at the arbitration proceedings and the University did not
lead any evidence to support Rowland’s interpretation that the work must be performed
on the road or platform. It appears that t he University and Karamdeo, and the
employee, accepted Rowland’s interpretation as a fact that the secondary contract
required that the work be performed on the road or platform. The commissioner
continued:
‘Firstly, the charges were drafted on that basis. Secondly, the applicant admitted
that he had obviously not worked on the platform or the road. .. He submitted that
the Clinical Training Grant allowed for work other than work done on the road or platform and he therefore submitted the claim with a [conscience]. Thirdly, the applicant pleaded guilty. Obviously, because he had not worked on the platform
or on the road. ’
[29] The commissioner rejected the employee’s case that he pleaded guilty as part of
a plea bargain. He found that the employee pleaded guilty because he had obviously not worked on the platform or on the road. The commissioner observed that:
‘He how ever maintained that there had not been enough transparency on the
contract requiremen ts and from t his technical point of view he was willing to work
[to] make it right .’
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[30] He found that the employee did not work on the platform or on the road. The
commissioner continued to make an important finding - that this did not confirm that the
secondary contract required the employee to work on the road or platform . He
continued:
‘Even if I am wrong, the element or requirement of intent has to be considered. The question is whether the applicant had the intent to claim hours as if he was working on the platform or road. I am not persuaded that the applicant had the intent ion to deceive the respondent.’

[31] The commissioner concluded that:
‘It appears to me that when he had put pen to paper in his claim he was not
aware that the claim could only be for work on the road or platform and that he
was actually busy committing misconduct. I am not convinced that he was aware that his conduct was unlawful or wrong, in my view the applicant was claiming for work he believed to have been done and cou ld legitimately be claimed for.
For the reasons above, I cannot find that the respondent proved that the
secondary contract’s requirements was for work to be done on the platform or
road and that the applicant had intent (mens rea). The applicant is therefore not guilty of the charges for which he was dismissed. His dismissal was substantively unfair.’
[32] The commissioner proceeded to deal with the remedy . He referred to section 193
of the LRA and found that there was no evidence before him that could prevent an award of reinstatement. He awarded reinstatement but ordered that the reinstatement should not operate retrospectively allegedly because the applicant failed to exercise the amount of care he was required to and that his hands were not clean. The
commissioner also considered that the employee had been working after his dismissal.
The review application

12
[33] The University seeks to upset the award on the basis that the commissioner’s
decision fails the reasonableness test. The criticisms against the award are broadly that
the commissioner committed misconduct and gross irregularities, misconceived the
nature of the issues, incorrectly determined issues that were not before him and committed material errors of fact and law. The University contends that the
commissioner disregarded relevant material, abrogated his responsibility to assess the totality of the evid ence and thereby den ied it the right to a fair hearing. It contends that
the commissioner failed to have due regard to the following facts - the claims were
lodged pursuant to the two secondary contracts and could only claim for work done
during the time periods stipulated by the respective contracts.

[34] The University contends that the employee conceded that he claimed against the
funds derived from the secondary contracts and not for work performed in terms of the secondary contract, which implies that he was aware that the claims did not fall within the ambit of the secondary contracts, which showed a fraudulent intent on his part. The commissioner is acc used of ignoring this evidence.

[35] It was further contended that the employee conceded that “ he had not done work
contained in the secondary contracts ” and that he claimed additional hours worked
outside the parameters of the secondary contracts. The University referred to the employee’s mitigating factors which reiterated and confirmed that his claims were not in terms of the secondary contracts. The employee also admitted that the hours worke d do
not correspond with the hours actually claimed.
[36] In its supplementary affidavit, the University contends that the commissioner
disregarded that the employee had initially offered to repay the amounts paid to him which was a demonstration that he claimed the payments with full knowledge that they were not due to him and that his change of tune during arbitration proceedings that he was entitled to those payments was an afterthought which ran directly contrary to his earlier acceptance. Furthermore, the employee acknowledged that some of the hours he claimed against the secondary contracts actually related to work done before the
13
secondary contracts or that they were outside the scope of the secondary contracts, but
the commissioner ignored the employee’s evidence that he entered into the secondary contracts believing that he should be compensated for the extra hours he worked.
Analysis
[37] The test applicable to the current application has been authoritatively set out in
Sidumo and Another v Rustenburg Platinum Mines Ltd and O thers
2. It is whether “the
decision reached by the Commissioner is one that a reasonable decision- maker could
not reach?” . This is a stringent test, one that ensures that awards are not interfered with
lightly3 and one that does not require this Court ’s agreement with the award, but simply
requires an enquiry into the reasonableness of the award.4
[38] The commissioner started hi s enquiry into the fairness of the employee’s
dismissal by considering the reason for which he was dismissed . The employee was
dismissed for fraud. The University alleged that the employee fraudulently claimed
payment for hours that he never worked on the road or pl atform.

[39] The commissioner properly construed the issues before him by correctly
identifying the reason for the dismissal. To demonstrate that he understood the nature
of the enquiry, he identified that the University had the onus to establish that the
employee claimed payment for the hours he had never worked for, with full knowledge
that he could only clai m for work performed on the road or platform and that he
benefited from the transaction and the University suffered loss. The University did not
dispute that the employee had carried out the work as he explained. Further, it is not in dispute that the work carried out was of clinical assistance, as set out in the secondary
contract. The employee’s evidence that he worked many hours than claimed was not

2 [2007] ZACC 22; ( 2007) 28 ILJ 2405 (CC) at para 110.
3 Fidelity Cash Management Service s v Commission for C onciliation, Mediation and A rbitration and
Others [2007] ZALAC 12; (2008) 29 ILJ 964 (LAC) at para 100.
4 Duncanmec (Pty) Ltd v Gaylard NO and others (2018) 39 ILJ 2633 (CC); [2018] 12 BLLR 1137 (CC) at
paras 42 - 43.
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disputed. In fact, it was the University’s duty to establish that he did not work these
hours or worked less hours than he claimed.
[40] The University failed to address or sufficiently address the most fundamental and
significant finding made by the commissioner – that the secondary contracts do not
require the work to be performed on the road or platform. I have already reproduced the
secondary contract above and it makes no requirement for the work to be performed on
the road or platform. The commissioner’s observation and finding that the contract makes no such provision is correct . The definition of secondary contract also makes no
such limitation and the scope of secondary contract is broadly defined to cover any work
of clinical assistance .
[41] The commissioner made an astute observation that the charges against the
employee were drafted on the basis of this accepted albeit mistaken belief that the
employee could only claim for work performed on the road or platform. The employee’s apology, concession that he did not work the hours claimed and his offer to correct the
wrong by working or paying back the money were influenced by the University’s and his
misconstruction of the secondary contract that it required work to be performed on the
road or plat form. There is no dispute that the employee worked even more hours than
he claimed for.
[42] During the hearing, I asked Mr Le Roux, appearing for the University , what was
the misrepresentation on the part of the employee. Well, the answer, so the Court was
informed, was in the employee’s answer during the interview with Karamdeo. In other words, an employee who for his naivety or misapprehension of the employer’s policy or
the contract , pleads guilty to the charge is bound by his plea and t he arbitrator or this
Court must accept the guilty plea as is , and not enquire whether indeed the employee’s
plea is an admission of all elements of the charge. If this was the legal position, it would
be untenable. It cannot be the legal position.

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[43] In my view, the employee’s plea of guilty at the disciplinary hearing does not
axiomatically make him guilty of the offence. The court or in this case the CCMA, must
enquire and satisfy itself that the employee had freely, voluntarily and unequivocally
admitted all the elements of the charge. This duty necessarily extends to the
chairperson of the disciplinary hearing.
[44] The employee had maintained that he worked for the hours claimed and that in
fact, he worked more than the hours claimed. The employee was clearly influenced by a
common mistake when he entered a plea of guilty that he could only claim in terms of
the secondary contract for work performed on the road or platform. The claim form s
contain no misleading statement and this was never the University’s case. Mr Le Roux
could not point to any information in the claim forms that were misleading. For these
reasons, I am not persuaded that the employee’s plea of guilty at the disciplinary
hearing evinced a free and unequivocal admission of all the elements of the charge of fraud, including unlawful misrepresentation. That he admitted to having claimed for
other work outside the claim period does not negate his undisputed evidence that he worked more hours than he claimed for. This work was within the scope of the
secondary contract. Accordingly, the commissioner’s finding that the University did not
establish intention and therefore failed to prove that the employee was guilty of fraud is
supported by the record and is unassailable.

[45] The commissioner, having concluded that the employee was not guilty of the
charge, dealt with the appropriate relief. He found that the University did not lead evidence to suggest that a continued employment relationship would be intolerable or
that it would be reasonably im practicable to reinstate the employee.
5 The commissioner
made an award of reinstatement . He refused to order retrospective reinstatement
allegedly because the employee’s hands were not clean and that the employee had
been working after his dismissal. In the absence of a cross review, this aspect of the award stands.


5 See: section 193(1)(a) and (2)(b) and (c) of the LRA.
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[46] In conclusion, t he University has failed to establish that the award falls to be
reviewed and set aside. The award meets the reasonableness threshold and the review
application stands to be dismissed. Finally, this is a not a matt er that warrants a costs
order.
[47] In the premises, the following order is made:
Order
1. The review application is dismissed with no order as to costs.

M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr F Le Roux
Instructed by: Joubert Gaplin Searle Attorneys
For the 3rd Respondent: Mr B Dyke SC
Instructed by: Brown Braude & Vlok Incorporated