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[2003] ZALCJHB 3
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Khanya and Others v Cohen and Others (JR1379/01) [2003] ZALCJHB 3 (18 March 2003)
[COMMENT1]
Sneller
Verbatim/JduP
IN THE LABOUR COURT
OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR1379/01
DATE: 2003.03.18
In the matter between
XOLANI
KHANYA
1
st
Applicant
JABULANI
DMADI 2
nd
Applicant
MESHACK
RAMSEY 3
rd
Applicant
LUCKY
SIWUNDLA 4
th
Applicant
and
PHILLIP
COHEN 1
st
Respondent
SECTORIAL
BARGAINING 2
nd
Respondent
MINISTER
OF HOMES
AFFAIRS 3
rd
Respondent
J U
D G M E N T
PILLAY,
J
:
The
applicants were employed as immigration officers by the third
respondent. On 11 April 1996 they were transporting a group of
about
forty aliens to Beit Bridge in order to repatriate them to Zimbabwe.
An accident occurred and some of the aliens and the
applicants were
injured. The more seriously injured aliens were taken to hospital.
The applicants proceeded to the offices of the
Department of Home
Affairs in Louis Trichardt for instructions.
Mr
Breytenbach who was in charge of the Louis Trichardt office contacted
Mr Raubenheimer of the Department of Home Affairs' offices
in
Pretoria. On the applicants
’
version
this was to obtain instructions from Mr Raubenheimer. On Mr
Raubenheimer's version at the arbitration, it was simply to
keep him
informed. No instructions were forthcoming from either Mr Breytenbach
or Mr Raubenheimer.
At 16:00 Mr Raubenheimer
locked the offices and left. The applicants attempted to take the
aliens to a hospital in Louis Trichardt
and in Elim. But they were
refused admission on the basis
inter alia
that payment could
not be guaranteed.
They drove to
Johannesburg and left the aliens at Johannesburg's Hillbrow Hospital.
There is a dispute as to whether they left the
aliens in the custody
of the security guards or simply dropped them off at the hospital
entrance.
The applicants were
charged and dismissed in terms of section 20(d) of the Public Service
Act of 1994 for being -
"...negligent or not
diligent in the carrying out of their duties in that on or about 11
April 1996, and at or near Hillbrow
Hospital, Johannesburg, they left
a group of injured illegal aliens without the necessary supervision."
(sic)
.
The arbitrator confirmed
the dismissal, having found that the applicants were guilty of the
charge.
It is common cause in
this review that the finding of misconduct by the arbitrator is not
reviewable. The sanction of dismissal
is the focus of this review.
The grounds of review,
relevant for the purposes of this judgment, are that :
·
The arbitrator failed to apply his mind and
committed gross irregularities in his award, which was unjustifiable
in relation to
the reasons given therefor,
·
He failed to consider whether the dismissal
by the third respondent was an appropriate and fair sanction,
·
He failed to apply his mind to the
appropriateness of any other sanction.
The award does not
manifest that the arbitrator had applied his mind to the question of
sanction. That is not necessarily decisive.
However, the common cause
facts before the arbitrator were so compellingly against a finding of
dismissal that they ought to have
struck the arbitrator between the
eyes so to speak, even if they were not pertinently argued before
him. These facts were:
1.
The incident occurred on 11 April 1996.
2.
They were charged on 16 January 1998.
3.
They were dismissed on 5 August 1999.
4.
They remained on duty until their dismissal.
5.
The evidence for the third respondent was that the applicants
continued to render services
after the incident and were trustworthy.
6.
They received no instructions or guidance from the leadership of the
department in the form
of Messrs Raubenheimer and Breytenbach.
7.
The applicants had been on the road for about 24 hours, the accident
having occurred at about
10:30 on 11 April 1996, and the delivery of
the aliens to Johannesburg being in the early hours of the morning of
12 April 1996.
The arbitrator had
correctly criticised the conduct of Mr Raubenheimer, but did not
consider the implications of the latter's omission
insofar as it
might have been a mitigating factor for the applicants, or might have
explained their conduct.
The arbitrator also did
not consider the undisputed fact that the applicants were exhausted
and stressed, having been involved in
an accident in which their
vehicle had overturned.
Furthermore, no account
was taken of the human rights violations upon the applicants
themselves. They were injured on duty as employees,
and were given no
instructions by their employer. Nor were they given any guidance or
assistance on the steps to be taken to either
address the
circumstances in which they found themselves or their own personal
predicament.
Another factor that the
arbitrator failed to take into account is that this was an
extraordinary event. It was not a regular
occurrence in the
normal course of duties. This is one of the factors relevant to
determining the risk posed by the applicants'
continued employment
with the third respondent.
The arbitrator's
confirmation of the dismissal is, to say the least, startling in the
circumstances. However, as the arbitrator
had not applied his mind to
the appropriate penalty, the matter should be referred back to him to
consider this issue.
There are many factors,
other than those that I have enumerated above, that go to determining
the appropriateness of the penalty.
They include the quality of the
evidence of the respective witnesses, as well as the content thereof.
It is appropriate therefore
that the commissioner, having heard the
matter on the substantive charges, should also be the one to
determine the appropriate
penalty.
In the circumstances the
notice of motion is amended at paragraph 1 by the deletion of the
words "procedurally and".
I grant an order in terms
of paragraphs 1 and 2.
Paragraph 3 of the order:
The matter is referred back to the third respondent for determination
of an appropriate penalty.
Paragraph
4 of the order: The third respondent is to pay the applicants' costs.
______________
PILLAY,
J
FOR
THE APPLICANT
:
ADVOCATE BUIRSKI
INSTRUCTED
BY
: MASHILE-NTLHORO
INC.
FOR
THE RESPONDENT :
ADVOCATE HULLEY
INSTRUCTED
BY
: STATE ATTORNEY
[COMMENT1]
BEGIN
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