Arbitration Award Case Number: GAJB18947-15 Commissioner: Timothy Boyce Date of Award: 23-Jan-2017. in the ARBITRATION between Khensani Sihlangu (Union Applicant) and Construction Education and Training Authority(Ceta) ‘(Respondent) Union/Empioyee's representative: MrJones Union/Applicant’s address; _c/o Khumale Masondo Afomeysing. ‘Bruma Office Park 25 Ernest Oppenheimer Drive Telephone: _077 836-9750,076 713-3343, Telefax: “011 834-4856,011 615-7635,011 263-9000 E-mail: “khensi.sinlango@amail.com /jared@kmine.co.za Employer's representative: MrFord Respondent's address: “eloNdumisoVoyiinc. SS Ss—~sS~S~S Voyi Ine POBox 2592 “HalfwayHouse SSCS House 1685. Telephone: _011 265-5936,011 265-5900 Telefax: 086 763-8407, 086 519-3855, 086 254-1770,086 246-2216 E-mail: _reandram@ceta.co.za / sithabile@voyi.co.za ‘Orly signed awards thal contain the OCHA approved waiermark are authorised. GAsBiaNaT-i5 Page tof 12THE PARTIES 4. The employee, Khensani Sihlangu, was represented at the arbitration by an attorney, Mr Jones. 2. The employer Construction, Education and Training Authority (CETA), was represented by Mr Ford, an advocate. BACKGROUND TO THE DISPUTE 3. On 21 April 2015, the employee referred an unfair labour practice dispute related to suspension to the CCMA. The case number of this dispute is GAJB 8472-15, 4. The request for arbitration in respect of case number GAJB 8472-15 was delivered on 16 July 2015 5. On 10 September 2016, the employee referred an unfair dismissal dispute to the CCMA under case number GAJB 18947-15. 6. Commissioner Moodley issued a consolidation ruling on 10 September 2015 in terms of which case numbers GAJB 18947-15 and GAJB 8472-15 were consolidated under case number GAJB 18947-15. 7. The request for arbitration in respect of the consolidated dispute was filed at the CCMA on 26 October 2016. 8 The consolidated dispute was then set down for arbitration before me, The proceedings were mechanically recorded. THE ISSUES 9. It was. common cause that the-employee was suspended by the employer on.17 March 2015, and she waé subsequently dismissed on 8 September 2015. The issues to be determined are, therefore: + Whether the employee's suspension constituted an unfair labour practice as contemplated by Section 185 (2) (b) of the Labour Relations Act 66 of 1995, as amended {the LRA). + Whether there was a fair reason for the employee's dismissal, + Whether the employee's dismissal was preceded by a fair procedure. THE EVIDENCE 10. The employer's first witness, Patrick Ramuedi (Ramuedi), testified that he is presently employed by Sibanye Gold Academy (Sibanye) as a facilitator, moderator and assessor. As @ moderator and assessor one is required to be registered as such with the employer. Ramuedi has been permanently ‘employed by Sibanye since November 2006, Registration lasts for 3 years and, upon expiry of one’s registration, one is required to re-register. Ramuedi's registration expired and, during January 2014, he contacted the nly signed awards that contain the COMA agproved watermark are authorised, GAIB IST -5 Page 20f 12employer in order to renew his registration. His application for registration was submitted to the employee on 20 January 2014 and the employer told him to follow up after 6 weeks to ensure that his accreditation had been registered. During March 2014, Ramuedi contacted the employer regarding his accreditation and the employee told him that it was still not ready. He repeatedly communicated with the employee, via email and telephone, regarding his registration (vide A22 and 23). Ramuedi changed his surname in 2010 from Nyathela to Ramuedi. 41. According to a screenshot (vide A18), the employee had updated Ramuedi's details on 28 July 2014 and added him as an assessor with a training provider called Ditshaba Kopano Training Gentre (Ditshaba). Ramuedi was not an assessor with Ditshaba and he should have been Teflected only as an assessor with Sibanye, He duly lodged a complaint with the employer. The application to register Ramuedi as an assessor dated 10 November 2010 (vide A134#) was fraudulent and was not completed or signed by him. On 16 January 2014, the employee sent Ramuedi an email informing him that his moderator registration with the employer had expired on 15 July 2012, while his assessor registration had expired on 25 October 2013 (vide A23). It is not necessary to summarize all of the evidence showing that Ramuedi had never applied to be registered as an assessor of Ditshaba since this was common cause. Ramuedi did not conclude an employment contract with Ditshaba (vide A157‘f), and the signature thereon purporting to be his signature was a forgery (vide A161 and 162). Ramuedi stated that he frequently phoned the employee regarding his registration with the employer, and the employee was always rude to him. She would ask who was calling and then put the phone on her desk without responding to his queries. 42. During cross examination, Ramuedi stated. that, during January 2014, he had applied to the employer for accreditation as an assessor. The application for registration as an assessor, which another entity, Gaborona Training Academy (Gaborona) had submitted to the employer (vide A208ff), was also a forgery and it did not bear Ramuedi’s signature, On 16 January 2014, the employee informed Ramuedi that his registration as a moderator had expired on 15 July 2012, while his registration as an assessor had expired on 25 October 2013 (vide A23).. Ramuedi spoke to the employee more than 10 times and she was always rude to him and would put the phone down. He complained to the employer's manager, Robert Thibela (Thibela), regarding the employee's rudeness on 22 April 2014 (vide A27). Another staff member, Annikie Phuti (Phuti) was also rude to Remuedi Ramuedi also complained verbally during 2015 about the employee's tudeness. When | asked Ramuedi how the employee was rude to him, he replied: “When | would phone (the employee) would find out who | was and then either put the phone down or put the phone on the desk". Ramuedi knew he was speaking to the employee since he would ask for her at reception and he was then put through to her. He spoke to the employee ‘on many occasions. According to Ramuedi, the employee played a role in the fraudulent accreditation of Ditshaba because a screenshot (vide A718) showed that the employee had worked on his file on 28 July 2014. ‘Only signed awards thal eontain the CCMA approved watermark are authorised. GAIBIBMIAS Page 30f 1213. The employer's specialist for Learning, Pathways and Quality Development (LPQD), the abovementioned Phuti, testified that the employee was employed by the employer as a LPQD officer. ‘The employee's main responsibility was the accreditation of training providers, but she wes also responsible for the accreditation of practitioners, such as moderators and assessors, The Ditshaba application for accreditation (vide A125ff) was accompanied by an application form for the registration of Ramuedi (previously known as Nyathela) as an assessor (vide A134ff). Phuti stated that, if Ramuedi had not completed the assessor registration form, this would disqualify Ditshaba from accreditation as it would not have had a registered practitioner. There is a duty on the officer to verify all documentation before accrediting the provider and/or registering the assessor, Phuti referred to numerous anomaliesfiregularities in the Ditshaba application, but it is not necessary to summarize this evidence as the unchallenged evidence of Ramuedi was that he never applied to be registered as an assessor with Ditshaba. According to Phuti, when the employee sent the email to Ramuedi on 16 January 2014 (informing him that his registration as a moderator and assessor had expired (vide A23), she would have been aware that his registrations had expired. The employer's computer system does not show who issued the Ditshaba registration certificate. The system shows that the employee updated Ramuedi's profile on 28 July 2014, 14. When it was put to Phuti during ctoss examination that the employee played tno role in the accreditation of Ditshaba, she replied: “I have no knowledge”. After the manager (Thibela) signs off accreditation letters, same are signed by the CEO. The officers are responsible for ensuring that applications for accreditation are legitimate. Phuti replied in the negative when | asked her if she knew which officer was responsible for the accreditation of Ditshaba. According to Phuti, the employee did’ nothing wrong regarding the accreditation of Ditshaba. ° According to Phuti, the employee was negligent in respect of charge 3 since she failed to identify fraudulent submissions made by Ditshaba when it applied for accreditation as a provider. The LPQD. specialist quality assures applications. for accreditation and also checks that the accreditation letter corresponds with the application. In the absence of a LPQD specialist, the core business manager signs off accreditation letters before they are sent to the CEO for signature. Phuti stated that she was unaware whether the employee played a role in the accreditation of Ditshaba. 1. The employer's senior projects manager, Robert Semenya (Semenya), testified that his previous sumame was Thibela. He was previously the ‘employer's core business manager. The employee was a LPQD officer and her duties included evaluating applications for accreditation. According to ‘Semenya, the employee was the LPQD officer who dealt with Ditshaba’s application for accreditation when it was first submitted on 5 September 201 (vide annexure F). Semenya stated that there were various irregularities with Ditshaba's application for accreditation (such as the holder of a document not being present when the document is certified as a true copy of the original) and this should have aroused the employee's suspicions. Semenya believed that the employee knew that Ditshaba had fraudulently reflected Ramuedi as its assessor. When | asked Semenya ‘nly signed awards tal contain the CCMA approved watermark are authorised, GAIB TOOTS Page 4 of 12how he knew that the employee was aware that Ramuedi had never applied to be registered as an assessor with Ditshaba, he replied: "The CETA has evidence that (the employee) knew that Ramuedi had not been registered as an assessor with Ditshaba and, if she knew that, then she must have known that the Ditshaba application was fraudulent’. It was common cause that the employee conducted a site visit at Ditshaba during January 2012 (vide A114ff). The Ditshaba accreditation letter dated 4 December 2013 was approved on 15 January 2014 and signed by the CEO, Sonja Pilusa (vide A109 - 112). This accreditation letter reflects Nyathela (i.e. Ramuedi) as an assessor of Ditshaba, which was untrue. On 16 January 2014, the employee sent an email to Ramuedi informing him that his registration with the employer as a moderator and assessor had expired on, respectively, 15 July 2012 and 25 October 2013. According to Semenya, the employee would have realized from the Ditshaba accreditation letter (vide A109 ~ 112) that the Ditshaba application was fraudulent since it falsely reflected Ramuedi as an assessor of Ditshaba. 16. As far as charge 2 was concerned, Semenya stated that Ramuedi phoned him and complained to him about the employee's rudeness. Semenya then met with Ramuedi and he was told that the Ditshaba application was fraudulent (since Ramuedi was not an assessor with Ditshaba) and that the employee had been'rude to Ramuedi. The employee's rudeness (and that of Phuti) was confirmed in Ramuedi's email to Semenya dated 22 April 2014 (vide A27). Semenya also referred to an email to Senzi Moroe, dated 23 February 2015, in which Ramuedi; inter alia, complained about the employee's rudeness during March 2014 (vide A18). The allegations of misconduct levelled against the employee are serious and, according to Semenya, he can no longer trust the employee. 17. During cross examination, Semenya stated that the employee should have detected anomalies/irregularities in’ the" Ditshaba application for accreditation when she first evaluated the application on 5 September 2011. When | asked Semenya when the employee would have been aware that Ramuedi was not accredited.as an assessor with Ditshaba, he replied: “at least at the time of the issuing of the accréditation letter’ (i.e. 15 January 2014, vide A109). Ramuedi complained to Senzi Moroe (vide A18) and to Semenya regarding the employee's rudeness. Semenya stated that there is “evidence” that the employee updated the Ditshaba application for accreditation on the employer's system. The employee updated Ramuedi's application for registration on 28 July 2014 (vide A18) but, prior to that, the LPQD officer who was responsible for this application was Caroline Ndhlovu (Ndhlovu). Ndhlovu was dismissed for fraud. According to Semenya, evidence from the employer's system (vide A26) and the Ditshaba accreditation letter (vide A109#f) show that the employee was involved in Ditshaba’s application for accreditation. Semenya agreed that the employee's site visit to Ditshaba during 2012 did not result in the accreditation letter being issued since the original application was lost and a copy of the application was re-submitted during 2013. There was another site visit to Ditshaba during 2013 but the employee was not involved with that. When it was put lo Semenya that the employee was not responsible for the Ditshaba accreditation letter (vide A109ff), he stated that information Grip signed awards Thal Contain the COMA approved walormark are authorised. GAIBTESITAS Page S of 12from Deloitte shows that the accreditation letter was generated on the system by the employee, 18. The employer's corporate services manager, Mr Jiyane, testified that the employee was already on suspension when he joined the employer on 1 April 2015. The employee had been suspended on full pay pending an investigation and disciplinary hearing. _Jiyane stated that the employee's alleged rudeness to Ramnuedi was unacceptable and a contravention of the Batho Pele Principles (vide A35ff} to which the employer subscribes, 19, During cross examination, Jiyane conceded that he was unable to give any evidence regarding the employee's alleged misconduct. Phuti was issued with @ warning since she was rude to Ramuedi on one occasion. The employee, however, was rude to Ramuedi on several occasions. The employee's alleged misconduct was detected on 23 February 2015 and she was suspended on 17 March 2015. There was no unreasonable delay as the alleged misconduct had to be investigated. When it was put to Jiyane, in respect of charge 1, that the employee did not process the Ditshaba application in 2011 or 2013, he replied: “I would have to refer to documentation to comment’, | The Deloitte screenshot (vide A26) shows that the employee updated assessor details on 28 July 2014. 20. The employee testified that het employment with the employer commenced on 9 June 2008 as a skilis development administrator. She was appointed to the position of skills development. officer during October 2008. The employee admitted that she attended the Ditshaba site visit during January 2012 (vide A123), but she was adamant. that she did not evaluate the Ditshaba application for accreditation. She saw the Ditshaba accreditation letter (vide A109#) for the first time at her disciplinary hearing. The ‘employee was told that the Ditshaba application’ was re-submitted during 2013, but she never worked on the application. Prior to her disciplinary hearing, the employee was unaware that Ramuedi was reflected as an assessor in the Ditshaba application. - She had nothing to do with the Ditshaba site visit during-2013.. Phuti worked on the Ditshaba file when the application was, re-submitted during 2013. In rasponse to a question by me, the employee stated that, when she informed Ramuedi, on 16 January 2014, that his registration as an assessor had expired (vide A23), she was referring to his registration as an independent assessor. The final accreditation of Ditshaba was done by Phuti, Subsequent to the Ditshaba site visit during 2012, the employee had nothing to do with Ditshaba’s application for accreditation. The screenshots in question (vide A18 and A26) show that the employee added an assessor on 28 July 2014, but she pointed out that the screenshots do not show who the assessor was or whether it related to a particular training provider. The employee insisted that she had nothing to do with the accreditation of Ditshaba and she was, therefore, unaware that the Ditshaba application was fraudulent The memo (vide annexure G) which accompanied the Ditshaba accreditation letter (vide A109ff) was not correct since it states that she generated the accreditation letter whereas Phuli generated the accreditation letter. The employee also pointed out that the said memo was suspicious since it was only signed by Phuti. If the employee, Bethuel Modibedi and Phuti had ‘Only signed anards tat contain the CCMA approved walermark are authorised. GARBIBMTAS Pago Bof 12generated the accreditation letters referred to in the memo, then all three of them should have signed the memo (vide annexure G). 21. Regarding charge 2, the employee admitted that Ramuedi had phoned her during January 2014 regarding the status of his registration as a moderator and assessor. She denied, however, that she was ever rude to Ramuedi The employee suggested that Ramuedi had spoken to Phuti and mistakenly believed that he was speaking to her. In response to a question by me, the employee conceded that it was apparent from Ramuedi's letter of complaint (vide A18) that he could distinguish between her voice and that of Phuti ‘The employee claimed that she is unaware why she was charged with misconduct and, as far as she is concerned, the trust relationship is not damaged. 22. During cross examination, the employee admitted that there was an agreement that certain of the charges (i.e. charges 1 and 6, and charges 3 and 4) would be consolidated at her disciplinary hearing. She conceded that she was afforded an opportunity of stating her case at her disciplinary hearing. The employee was suspended on full pay on 17 March 2016 pending an investigation into. her alleged misconduct. The employee's salary at the time of her dismissal (September 2015) was R31 537.13 per month. Although she secured alternative employment as an administrator from February 2016, the employee stated that she seeks reinstatement. 23. The employee admitted that, if she had played a role in the accreditation of Ditshaba (ie. charge 1), dismissal would be an appropriate sanction. She was, however, adamant that, apart from a 2012 site visit, she played no role in the accreditation of Ditshaba, Phuti generated the Ditshaba acoreditation letter and she, therefore, would have had sight of the Ditshaba application (vide annexure F). The employee disputed Semenya's evidence that she had prepared the Ditshaba accreditation letter. The screenshots relied upon by the employer (i.e. A18 and A26) do not refer to Ramuedi or the service provider, The memo recording that the employee generated the Ditshaba accreditation letter (vide annexure G). was not correct. The employee was unaware why Phuti signed the aforementioned memo (vide annexure G). The employee denied that, when she informed Ramuedi on 46 January 2014 that his moderator and assessor registrations had expired, she had played a role in the accreditation of Ditshaba. According to the employee, Phuti was negligent since she signed the memo (i.e. annexure G) and she did not check the information in the Ditshaba application. The employee was unable to explain why it was not put to Ramuedi (in respect of charge 2) that he mistakenly thought that he was speaking to her when he was actually speaking to Phuti. 24. The employee's witness, Miss Malatji, testified that she was employed by the employer as a LPQD administrator until she was dismissed for intimidation during July 2015. Malatii stated that an accreditation letter must be generated by the person who updated the provider's information on the system. The memo which accompanies the accreditation letter must be signed by the officer who worked on the file, the LPQD specialist and the core business manager. The screenshots relied upon by the employer (vide A18 and A26) do not show that the employee generated the Ditshaba ‘hy Signed awards thal conten he COMA approved weiermark are euhorsed GAB 1GE47-18 Page 7 of 1226. accreditation letter (vide A109ff). According to Malatji, the memo (annexure G) does not comply with the employer's policy. During cross examination, Malatji admitted that, if the employee was not involved in the desktop evaluation of Ditshaba, she could have generated the accreditation letter. ANALYSIS OF EVIDENCE AND ARGUMENT 26. Section 188 (1), read with Section 192 (2), of the LRA, enjoins the employer to prove that there was a fair reason for the employee's dismissal and that same was effected in accordance with a fair procedure. Regarding the alleged unfair labour practice, the onus is on the employee to prave that the employer unfairly suspended her in terms of Section 186 (2) (b) of the LRA. THE UNFAIR LABOUR PRACTICE 27. It was contended on behalf of the employee that her suspension on 17 ‘March 2015 was unfair because the employer did not have a valid reason to suspend her. This contention was entirely devoid of substance since the very fact that the employee was subsequently subjected to a disciplinary hearing shows that there was, indeed, a valid reason to suspend her. The employee's suspension on full pay pending a disciplinary hearing did not, in any event, fall within the parameters’ of Section 186 (2) (b) of the LRA since it was not “unfair disciplinary action short of dismissal”. The employee, consequently, failed to prove that her suspension constituted an unfair tabour practice as contemplated by Section 186 (2) (b) of the LRA. PROCEDURAL FAIRNESS OF THE EMPLOYEE’S DISMISSAL 28. 29. 30. The employee's attorney (Mr Jones) “submitted ‘that the employee's dismissal was procedurally unfair since: * Charges 1 and 6, and charges 3 and 4, were incorrectly consolidated by the employer at the employee's disciplinary hearing; * Charges 1, 2, 3, 4 and 6 were vague since the employer failed to stipulate dates when the alleged misconduct occurred. There is no merit in either of the abovementioned grounds. The charges were correctly consolidated and, in any event, the employee admitted during the arbitration that she had agreed to the consolidation of charges 1 and 6 and charges 3 and 4. While it is true that charges 1, 2, 3, 4 and 6 do not specify dates when the alleged misconduct occurred, this did not prejudice the employee in any way since she denied that she: + Played a role in the accreditation of Ditshaba (i.e. charges 1 and 6); * Was ever rude to Ramuedi (i.e. charge 2); + Was negligent regarding the accreditation of Ditshaba. It was common cause that the employee attended her disciptinary hearing and she was afforded a full and proper opportunity to state her case. There was, therefore, “dialogue and an opportunity for reflection” before the ‘Only signed awards that contain the COMA approved watermark are authorised “GAIETBOET 15employer took the decision to dismiss the employee (vide Avril Elizabeth Home for the Mentally Handicapped v CCMA and Other: ) 4644 (LC). In the circumstances, it is abundantly clear that the employee’s dismissal was, indeed, preceded by a fair procedure, SUBSTANTVIE FAIRNESS OF THE EMPLOYEE'S DISMISSAL 4 The essential allegations of misconduct which resulted in the employee's dismissal fell into 3 categories, viz. charge1 (which was consolidated with charge 6), charge 2, and charge 3 (which was consolidated with charge 4). The said charges, which are considered seriatim below, read as follows (vide A4 and 5): * Charges 1 and 6: "Participating in or playing a role in the fraudulent accreditation of Training Providers utilizing details and particulars of Facilitators; Assessors and Moderator as well as other Information of Training Providers on the CETA's data base. In this regard, we specifically mention an Assessor being Mr Patrick Ramuedi and the Training Providers being Gaborona Training Academy C.C. and Dechaba(sic) Kopano Community Training" and "gross and material dereliction of duty and/or contravention of CETA’s internal regulations, policies and procedures in conducting your duties and functions’. * Charge 2: “Rudeness, insolence, impoliteness and/or impudence in dealing with Mr Patrick Rathuedi and Ms Tsatsi of Gaborona Training Academy’. * Charges 3 and 4: "Gross negligence and/or failure to adhere to work standards, rules and regulations of CETA" and "neglect of duty and/or carelessness in the discharge of your duties and functions” CHARGES 1 AND 6 32. 33, It was common cause that the application for accreditation by Ditshaba was fraudulent since. Ramuedi was not Ditshaba's assessor. In attempting to prove thal the employee in. casu participated in or played a role in the acefeditation of the fraudulent application of Ditshaba, the employer relied on: The evidence of Phuti; Certain screenshots (vide A18 and A26); The evidence of Semenya; The memo which accompanied the Ditshaba accreditation letter (vide annexure G). ‘The abovementioned evidence relied upon by the employer did not, in my view, gainsay the employee's unequivocal evidence that, apart from a 2012 site Visit, she played no role in the accreditation of Ditshaba, The aforementioned evidence is considered below: ¢ Phuti admitted during cross examination that she had "no knowledge” whether the employee played a role in the accreditation of Ditshaba. Phuii also conceded that there is nothing on the employer's computer iily signed awards that contain the CCMA approved weiermerk are authorised GAIBIGO47-15 Page Gof 12,34. CHARGE 2 35. system showing who, in fact, issued/generated the Ditshaba accreditation letter (vide A109). In addition, Phuti admitted that the employee did nothing wrong in respect of the Ditshaba accreditation, * In the absence of evidence from Deloitte, the screenshots relied upon by the employer (Le. A18 and A26) do not show that the employee participated in or played a role in the accreditation of Ditshaba. The screenshots in question may, at best for the employer, show that the employee updated Ramuedi’s assessor details on 28 July 2014, but they do not in any way link the employee to the accreditation of Ditshaba + Apart from stating that the employer had “evidence” that the employee knew that the Ditshaba application for accreditation was fraudulent, ‘Semenya's evidence did not link the employee to the accreditation of Ditshaba, and he was unable to gainsay the employee's version that she saw the Ditshaba accreditation letter for the first time at her disciplinary hearing. It is also significant that the employer failed to adduce computer records from Deloitte which, according to Semenya, showed that the employee was responsible for the Ditshaba acoreditation letter (vide A109ff. * The memo (ie. annexure G) which accompanied the Ditshaba accreditation letter recorded simply "letter generated by Ms Khensani Sihlangu’. This does not prove that the employee, in fact, generated the Ditshaba accreditation letter. The employee, moreover, pointed out certain anomalies in the aforementioned memo (such as it not being signed by the officers mentioned therein, viz. the employee and Bethuel Modibedi), and she was adamant that she was not the person who was responsible for generating. the Ditshaba accreditation letter. The employer did not adduce any evidence from Deloitte to show that the employee generated the Ditshaba” accreditation letter, and it follows that | must accept the employee's evidence that the Ditshaba accreditation letter was generated by Phuti and not by her. Having regard to the aforegoing, it is abundantly clear that the allegation that the employee participated in or. played a role in the Ditshaba accreditation was not proved by the employer. | pause to mention at this juncture that, even if it can be argued that the employee played some role in the accreditation of Ditshaba, there was certainly no evidence adduced by the employer showing that, when the employee played the aforementioned role, she was aware that the Ditshaba application for accreditation was fraudulent. It is, consequently, axiomatic that the employer failed to prove, on a balance of probabilities, that the employee was guilty of the misconduct embodied in charges 1 and 6. The evidence against the employee in respect of charge 2 was overwhelming and | have no reason to reject the plausible and compelling evidence of Ramuedi that the employee, on more than 10 occasions, was tude and impolite to him, Ramuedi's evidence was, furthermore, corroborated by his written complaint concerning the employee's repeated tudeness to him (vide A18). The employee's defense to charge 2 was nothing more than a bare denial, and | was singularly unimpressed with her ‘hi signed awards that contain the CCMA Bpproved watermark are autiorsed GAIBIESETAS Page 10 of 12suggestion that Phuti had been rude to Ramuedi and he mistakenly thought that he was speaking to her when he was actually speaking to Phuti CHARGES 3 AND 4 36. 37. 38. 39. AWARD 40. Having failed to prove that the employee participated in or played a role in the accreditation of Ditshaba, and having failed to gainsay the employee's compelling evidence that she saw the Ditshaba accreditation letter for the first time at her disciplinary hearing, it follows that the employee's alleged negligence was not proved by the employer, The employer's contention that the employee was negligent apropos charges 3 and 4 because she failed to detect anomalies in the Ditshaba application was, consequently, without substance since there was nothing to prove that the employee even had sight of the Ditshaba application (vide annexure F). Having regard to the aforegoing, it is plain that the employee's misconduct was limited to her rude and impolite treatment of Ramuedi. Although the employee's behavior in that regard occurred on more than 10 occasions, | am not satisfied that charge 2 warranted the ultimate sanction. The employer did not apply progressive discipline and the sanction of dismissal was not appropriate. in the circumstances, the employer failed to discharge the onus on it to prove that there was @ fair reason for the employee's dismissal. The employee's dismissal was, consequently, substantively unfair. Although the employee seeks reinstatement, | am of the view that reinstatement is not "reasonably practicable" (vide Section 193 (2) (c) of the LRA). The employee, after all, was suspended on 17 March 2015 (vide B1 and 2), and she has not worked for the employer for approximately 2 years The amount of time that has passed from the employee's suspension until the finalization of the arbitration impels me fo conclude that it is not “reasonably practicable" to reinstate or re-employ the employee (vide Republican Press (Ply) Ltd v CEPPWAWU and Others (2007) 28 ILJ 2503 {SCA)). The employes, furthermore, has secured alternative employment The only suitable remedy for the employee's unfair dismissal is an award of compensation. Section 194 (1) of the LRA states that any compensation awarded “must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee's rate of remuneration on the date of dismissal’. In determining an appropriate amount of compensation, | have had regard to the circumstances of the employee's dismissal, her fengih of service and the fact that she secured alternative employment during February 2016. | have also borne in mind that the employee was guilty of some misconduct. In the circumstances, | am of the view that compensation equal to 3 months’ remuneration constitutes “just and equitable” compensation. |, accordingly, find that the employee’s dismissal was unfair because the employer failed to prove that there was a fair reason for her dismissal. | therefore make the following award: ‘Only signed awards thal conan the COMA approved walermark are authorised. ‘GALBTBOT-15 Page 11 of 12* The employer, Construction, Education and Training Authority (CETA) is ordered to pay to the employee, Khensani Sihlangu, compensation in the amount of R94 611.39. + The compensation referred to above is to be paid on or before 3 February 2017. TIMOTHY BOYCE Senior Commissioner Chambers, Sandton. (aly signed awards thal contain the CCMA approved watermerk are aubiorsed. GAIBIOSM7AS Page 12 of 12