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[2012] ZALCPE 12
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Mbiza v General Public Service Sectoral Bargaining Council and Others (P 532/10) [2012] ZALCPE 12 (10 October 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case
no: P 532/10
In the matter between:
Jongisango
Wiseman Mbiza
.............................................................
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
Bargaining
Council & Others
...............................................
First
Respondent
ANTHONY
MARE
N.O
..........................................................
Second
Respondent
MINISTER
OF CORRECTIONAL SERVICES
...............................
Third
Respondent
Heard :10 October 2012
Order : 10 October 2012
Summary : Application to review dismissed with costs.
judgment-reasons for order
AC BASSON J.
Introduction
[1] This is an application to review and set aside an arbitration
award handed down by the second respondent, the Bargaining Council
arbitrator, under the auspices of the first respondent, the General
Public Service Sectoral Bargaining Council, in terms of which
the
second respondent found that the dismissal of the applicant was
procedurally and substantively fair and that the dismissal
was the
only appropriate sanction.
[2] Very briefly the applicant was employed by Correctional Services
at Mthatha Correctional Centre until his dismissal on 30 March
2009
on a charge based on Resolution 1/2006 of the Department of
Correctional Services. The charge readsas follows:
“
Dereliction
of duty, poor work performance of his duties and negligence”.
[3]
The charge emanated
from an incident where four offenders escaped during the time the
applicant was on duty in the section under
his control. The applicant
was charged with two others. They were all on night duty from 12h00
midnight until 08h00 the next morning.
They were all assigned to
guard a specific number of inmates in separate sections of the
prison. On 18 September 2008 four unsentenced
prisoners escaped from
unit 1 that was assigned to an officer with the name of Mr Jubase.
The applicant was assigned to guard 292
sentenced inmates in ‘E’
section. This section was also known as unit 6. It is common cause
that the next morning it
appeared that nobody escaped from his
section. However, it appeared that at least one of the inmates tried
to escape from the section
under the control of the applicant.
[4] At the arbitration it was the applicant’s main contention
that he was specifically tasked to look after the convicted
inmates
in his section, (section ‘E’) which housed 292 sentenced
inmates. According to him, and that was not in dispute,
all the
inmates he had to look after were still incarcerated on the following
day. As I understand the applicant’s case,
he argued that there
was no connection between him and the section where the unsentenced
inmates were held, and that those inmates
were under the control of
another individual with the name of Jubase. According to the
applicant he therefore cannot be held accountable
for their attempted
escape. Secondly he further contended that he was inconsistently
treated in that other employees were not dismissed
for similar
infractions, specifically with reference to a certain Mr Mampana and
a certain Mr Ngane. The commissioner deals with
both these two
individuals in his award. I will return to his conclusions in this
regard hereinbelow.
[5] I will deal with the consistency argument first: The alleged
inconsistency treatment with Ngane is not raised with the
respondent’s
main witness in cross-examination. The respondent
was therefore never afforded an opportunity to deal with the
allegation of inconsistent
treatment. In fact Ngane’s name
appears or surfaced for the first time in the applicant’s
evidence when he gave evidence
in chief. As far as Mampana is
concerned the respondent’s witness in chief dealt extensively
with the disciplinary action
taken against Mampana and the reason why
that process did not result in a dismissal. He explains in detail why
Mampana was not
dismissed with reference to the duties which he
performed.The applicant’s representative did not dispute any of
this evidence
in cross-examination. The evidence therefore stands.
Insofar as the inconsistency argument was raised as a ground for
unfair dismissal
there is absolutely no merit in this ground and the
commissioner’s conclusions are more than reasonable. I can find
no reason
to interfere with his conclusions in this regard.
[6] Turning to the main issue, and that is whether or not the
applicant should have been found guilty. On the evening in question
it appears that one of the escapees tried to escape through the
Medium Correctional Centre where the applicant worked, and tried
to
escape through the roof. The applicant’s evidence was that he
did not hear the ceiling boards break or dropping to the
ground in
his section because he allegedly was in the toilet at that stage.
[7] The applicant was therefore charged and dismissed for dereliction
of duty, poor work performance of his duties and negligence
in the
execution of his duties in that he did not prevent the inmates from
escaping from prison and more in particular he did not
stop the
inmates from using his section from which to escape.
[8] The commissioner evaluated the evidence and came to the
conclusion that he did not accept the applicant’s version that
he was in the toilet during the time of the incident. The
commissioner accepted the evidence led by the inmate who tried to
escape
who testified that he checked the office as well as the toilet
and that he did not see the applicant. The commissioner also accepted
the evidence that the applicant should have heard the commotion when
the inmate tried to escape through his roof by breaking the
ceiling.
[9] The senior correctional officer who was the initiator testified
and explained in detail what evidence was taken into account
in
deciding whether to find the applicant guilty and why the sanction of
dismissal was imposed. Of particular importance is the
consideration
that was taken into account which is that the taxpayer expected that
the Department ensures that prisoners do not
escape. He also
confirmed in his evidence that no-one escaped since these guards have
been disciplined, whereas previously a number
of inmates had escaped.
The initiator also explained that there were no distinctions made
between guarding the sentenced inmates
as opposed to unsentenced
inmates.
[10] The chairperson of the disciplinary hearing, Mr Zimema (the
Deputy Director of Prisons) also testified that the applicant
never
raised the alarm to indicate that there was an escape. He also
testified that, according to him, the applicant ought to have
heard
the ceiling break and the dropping of the ceiling boards on the
ground of his section.
[11] I have considered the award and I am satisfied that the
commissioner had arrived at a reasonable conclusion and that his
conclusion is not only sustainable read against the record, but also
a reasonable conclusion.
[11] I should also point out when the applicant initially lodged an
appeal after his dismissal by the chairperson of the disciplinary
hearing, he only appealed against the sanction; he never appealed
against the guilty finding. What is also striking is the fact
that
during the arbitration hearing the applicant’s representative
never challenged the guilty finding when cross-examining
the
respondent’s witnesses and more in particular, Zimema, who was
the chairperson of the hearing. In other words Zimema
was not
challenged on the guilty finding, he was only challenged in respect
of the sanction, and he was also never challenged in
respect of the
consistency of the sanction that was meted out.
[12] In the event I am of the view that the award should stand. Not
only is the conclusion reasonable, the thought process and
the
process in arriving at this decision is reasonable.
[13] In the event the review is dismissed and I can find no reason
why costs should not follow the result.
_______________________
AC BASSON J.
Judge of the Labour Court
09 March 2013