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[2015] ZALCCT 28
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Delport v SA Red Cross AMS (Air Mercy Services) and Others (C324/2014) [2015] ZALCCT 28 (12 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C324/2014
DATE:
12 MARCH 2015
Not
Reportable
In
the matter between:
GERALD
DELPORT
................................................................................................................
Applicant
And
SA RED CROSS
AMS (AIR MERCY
SERVICES)
..................................................
First
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
......................................................................
Second
Respondent
COMMISSIONER P
VAN STADEN
N.O
.................................................................
Third
Respondent
Date
heard: 11 November 2014
Delivered:
12 March 2015
JUDGMENT
RABKIN-NAICKER
J
[1] This is an
unopposed application to review an award by third respondent (the
Commissioner) under case number WECT 10511-13,
dated 17 March 2014.
The Commissioner found that the applicant’s dismissal was both
substantively and procedurally fair.
[2] The applicant
started his employment with the respondent on 1 October 2011 and at
the time of his dismissal, he served as a
National Operations Centre
coordinator. He was charged at a disciplinary enquiry with the
following offences recorded in the Award
as follows:
“
Sexual
Harrassment
5. It was alleged
that in December 2012 he made inappropriate phone calls to Ms Park –
Ross both while she was on duty. He
also dispatched her on a
fabricated mission and later indicated that it was a “joke”.
6. It was also
alleged that in January 2013 he made comments of a sexual nature,
towards Ms Rose Mizon in the terms of “the
younger the better”,
“no one will hear you scream, “sweetie”, and
“sweetheart”. It was contended
that these utterances were
sexist and disrespectful.
Gross
Misconduct and Insubordination
7. It was alleged
that the applicant had, on 2 January 2013, arranged a charter mission
for a patient being transferred between
intensive care units and such
was in contravention of the AMS policies, SOPS and guidelines in
terms of quotations and authorization
procedures and it also amounted
to the unauthorized use of the W/Cape Department of Health’s
ambulances and air ambulances.”
[3] The applicant
was on duty on 2 January 2013 in the national operations centre of
the first respondent. The centre receives calls
and requests for
medical air services. During his time on duty there was a patient who
was transferred to Johannesburg and was
from the ICU of a hospital on
the West Coast. The patient had to be conveyed to an ICU unit in
Suikerbosrand in Gauteng. The patient
had initially made arrangements
to fly to the destination on a commercial carrier and the latter
agreed with the proviso that she
be accompanied by a nurse. The
patient suffered from acute renal failure and had a history of cancer
since 2007. The commercial
carrier then refused to convey the patient
as the latter could not sit upright and the patient’s family
approached the respondent.
It was first respondent’s evidence
that its investigation revealed that the patient’s condition
justified a full air
ambulance configuration. The patient morphine
allergy was not properly assessed and medical equipment was removed
from the aircraft
by the applicant. The applicant accompanied the
patient to Gauteng although he did not qualify to do so unless
accompanied by a
doctor or an advanced life support paramedic.
[4] The applicant
testified at the arbitration that he had issued the quote for the
transfer, which was signed off by his base manager
and the finance
department. He stated that he was not aware of the instruction of 27
December 2013, which recorded that the permission
of the CEO had to
be obtained even though the email was sent to his official and
private email addresses. He confirmed in his testimony
that he did
not take the medical equipment that was in the aircraft on the
journey. He stated that pilots had to perform the weighting
and
balancing of the aircraft. He had no knowledge where the patient came
from and he assisted merely in an endeavor to accommodate
the
patient. He wanted to know why you should have any remorse in such an
event
[5] The
Commissioner found that the charge of gross misconduct and
insubordination alone was sufficient to uphold the sanction of
dismissal. In his analysis of the evidence he stated as follows:
“
The only
question that needs to be answered is whether the applicant was
authorized to arrange for the chartered flight as he did.
On the
overwhelming evidence against him, it is quite apparent that he was
not permitted to do so. He had to source permission
from the CEO
which he agreed he did not do. His explanation was that he was not
aware of the instruction. I have difficulty in
accepting this as such
instruction was sent to his work and private emails on 27 December
2013.
The conduct of
the applicant had put the respondent at serious risk. The patient was
in such a condition that the commercial carrier
was not prepared to
convey her, even with a nurse. This suggested that this was not
simply a charter passenger but someone who
needed qualified medical
attention on the flight. Why the applicant then, after he had
authorized the flight for which he did not
have the authority to do,
would remove the equipment which might well become necessary on the
flight escapes me.
The applicant
relied strongly on the fact that he had permission of his base
manager, Mr Olifant. He did not call Mr Olifant to
testify on any of
these issues and I am of the view that I ought to make an adverse
inference from his omission. It is not that
the applicant acted in
ignorance. He had a lawyer who assisted him and who was present at
all times during the arbitration proceedings.
In my view, the
probabilities are simply that Mr Olifant’s evidence would not
support the applicant’s version and I
must accordingly side
with what the respondent has put forward in its case. I am therefore
satisfied that the allegation that the
applicant, the chartered
flight without permission has been proved.”
[6] The
applicant’s grounds for review are set out the founding and
supplementary affidavit and amount to the failure of the
Commissioner
to consider certain facts and give sufficient weight to them. The
heads of argument drafted on behalf of the applicant
also reveal that
no reliance is placed on relevant jurisprudence regarding the review
of arbitration awards. Furthermore, no case
is made out to allege or
establish that the outcome of the award is one that a reasonable
decision-maker could not make.
[7] In my
judgment, on a reading of the arbitrator’s award and the record
of the proceedings, the arbitrator’s decision
is simply not
susceptible to review. In this respect, I refer to the matter of
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[1]
in
which the LAC held:
“
The
questions to ask in a review are: (1) In terms of his or her duty to
deal with the matter with the minimum of legal formalities,
did the
process employed by the commissioner give the parties a full
opportunity to have their say? (2) Did the commissioner identify
the
dispute he or she was required to arbitrate? (3) Did the commissioner
understand the nature of the dispute he or she was required
to
arbitrate? (4) Did the commissioner deal with the substantial merits
of the dispute? (5) Is the commissioner's decision one
that another
decision maker could reasonably have arrived at based on the
evidence? “
[8] In respect of
all the above questions, the answers are in the affirmative. It is
not necessary to consider the Commissioner’s
finding on the
sexual harassment charges as his decision that the gross misconduct
charge alone was sufficient to uphold a sanction
of dismissal cannot
be challenged. As the Commissioner stated: “one merely needs a
little common sense to realize what would
have happened had the
patient died on the flight. The craft did not have the recommended
equipment on board nor was the patient
in the company of someone who
was adequately qualified to accompany the patient. The conduct of the
applicant potentially exposed
the respondent to criminal and civil
liability……”
[9] In all the
circumstances, I therefore make the following order:
1. The review
application is dismissed.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
Mr Coereius of Parker Attorneys
[1]
(2014) 35 ILJ 943 (LAC)