IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN CAPE TOWN
Case no. C 168/98
In the matter between:
Thembile Mark Masitho & 7 Others Applicant
AND
Cape Town City Council Respondent
JUDGMENT
MLAMBO J.
1. On 22 January 1997 and at 19h00 all the individual applicants
employed as ambulance men by the Respondent timeously
commenced their night duty at the Khayelitsha Sector Station.
According to standing practice the order in which the individual
applicants and their vehicles were to follow as well as the order in
which they would take calls was to come from the control room.
Jakobus Van Zyl (“Van Zyl”) was in charge of the control room on that
day.
2. It is common cause that there was confusion at the Khayelitsha Sector Station
at the start of the shift on 22 January 1997. The confusion related to the order
in which vehicles would leave in response to calls. Van Zyl testified that he
confirmed the order after 20 minutes of realizing that there was confusion in
Khayelitsha. Van Zyl also confirmed that two calls were relayed to the
Khayelitsha sector station for attention. One call related to an incomplete
abortion where the patient had to be taken to a tertiary hospital, the other call
related to an abdominal complaint. Both calls were apparently outside
Khayelitsha.
3. It is common cause that the first car to respond to a call is usually the
overtime car. On that day car 57 was the overtime car but was not
immediately available. For that reason Van Zyl wanted car 79 to take
the first call. As a result of this standing practice the applicants
attached to car 79 i.e Jamela and Nongqokwana objected to being
required to respond to the first call as they were not the overtime shift
that evening. According to Van Zyl the overtime shift who were to use
car 57 were to be given a lift to fetch their car (57) from Pinelands.
4. Mncedisi Mkhubukeli (“Mkhubukeli”) who was the assistant station officer
(ASO) on duty at the Khayelitsha sector station on the evening of 22 January
1997, confirmed that the overtime crew did not have a car hence the second
crew who had a car (79), had to respond to the first call. He also
confirmed that there was another crew that also did not have a car.
This situation gave rise to unhappiness, i.e second crew objected to
responding to first call, that there was a shortage of cars. It is not
disputed however that the underlying cause of the unhappiness was
the fact that the crews were required to respond to calls outside of
Khayelitsha.
5. As a result of this unhappiness the first crew did not respond to the calls
relayed to them. All the crews then met that evening and after about an hour
after reporting for work they all signed sick leave forms and went home.
Mkhubukeli confirmed that he, as ASO on duty, authorised the applications
for such leave.
6. The individual applicants were charged and appeared before a disciplinary
tribunal. They were all charged with the offence of: “left the workplace
without permission alternatively refused to do duty.” Those individual
applicants who had received a direct call were charged with: “Left the
workplace without permission/alternatively refused to do duty after receiving
an instruction...”
They were all found guilty and dismissed on 26 June 1997 save for Nongqokwana
who was also with the other applicants on 22 January 1997. He was found guilty
of abscondment from work after deciding that an instruction given by the control
room officer was not to his liking. He was however given a recorded verbal
warning.
7. In these proceedings the applicants dispute the fairness of their dismissal on
several bases: it was submitted:
7.1 that no evidence was led during the internal disciplinary enquiry to justify
a finding that the applicants had refused to do duty.
7.2 that no evidence was tendered during the enquiry and in this court to prove
that the applicants had refused to obey a specific instruction.
7.3 the charge of refusing to do duty amounts to splitting of charges and
therefore unfair;
7.4 that the ASO on duty, Mkhubukeli, had permitted the applicants to leave
and that at no stage did he instruct the applicants to perform work which they
refused.
7.5 that in any way Macembe and Nyama (the overtime crew) were voluntary
overtime workers and could not be fairly dismissed for refusing to do duty by
virtue of being voluntary overtime workers.
7.6 the Respondent in dismissing the applicants had acted inconsistently as in
another unrelated case other employees (in Mitchells Plain) who were found guilty
on a similar charge were not dismissed but were given a final written warning.
8. Having considered the evidence led it is this court’s view that the claims that
might have merit and are worthy of consideration by this court are those relating
to the alleged permission by Mkhubukeli, the inconsistent application of discipline
and splitting of charges.
9. There is no merit to the submission that voluntary overtime employees are
immune to normal disciplinary measures for infractions committed during the
overtime shift. Once an employee commences overtime duty he remains
susceptible to the normal rules and regulations applicable in the enterprise. If he
commits any disciplinary offence during the overtime shift he must be disciplined
in the normal course.
10. In my view the charge of leaving the workplace without permission and that of
refusing to do duty related to the same incident. The charge of refusing to do duty
should not have been added as an independent charge. It would have been fair to
make it an alternative charge. It was therefore unfair to add it as a second charge.
It was not unfair to add the alternative charge of refusing to do duty after receiving
an instruction as regards Nongqokwana, Jamela, Mazwi and Swartbooi. As far as
these applicants are concerned they received instructions to attend to calls but
objected thereto. In their case therefore they refused to attend to calls and also left
the workstation.
11. I do not agree that the charge of refusing to do duty after receiving a
instruction related in any way to Pietersen. If this were so all the applicants would
have been charged for this incident. In my view this charge related to the
instruction given by Van Zyl relating to the two calls about an abdominal
complaint and an incomplete abortion. In any case no one of the applicants could
be found guilty relating to anything involving Pietersen because he did not testify
at the internal disciplinary enquiry.
1.
Left the workplace without permission
12. Mkhubukeli confirmed in his testimony, in this court as he did during the
internal disciplinary enquiry, that he permitted the applicants to leave the
workplace. It can however be established from his testimony that the idea of
applying for sick leave originated from him. He explained that he thought of the
sick leave route because he realized there was no way he could get the applicants
to perform their work that night.
13. That the applicants were unhappy at the order given by Van Zyl is undisputed.
None of the applicants testified to deny this fact. They were therefore given
permission to go home because of an illegitimate reason i.e. not wanting to
perform work. The reason advanced in the applicant’s statement of claim i.e. for
their sick leave is that they all ate a cows’ head and thereafter felt nauseous and
started vomiting.
14. There is no merit to the nauseous and vomiting story. None of the applicants
testified in this court about this condition. Furthermore Mkhubukeli and
Nongqokwana did not testify as to this condition being the reason for the sick
leave application forms completed by the applicants. If anything it is clear that
the sick leave was permitted by Mkhubukeli not because the applicants were sick
but because they were unhappy at the order given by Van Zyl and as a result they
did not want to perform their work.
1.
15. In my view the applicants cannot hide behind the fact that Mkhubukeli
permitted their sick leave applications. They were not genuinely sick nor were
their leave application genuine. Mkhubukeli’s conduct is completely unacceptable
especially because he was in charge at the time. As the ASO on duty at the time
his responsibility was to ensure that work is performed normally and not to use his
authority to assist the applicants to desert their posts. This, to me, raises serious
questions about his fitness to manage.
16. The applicants had no basis for being unhappy with the instruction to attend to
calls outside Khayelitsha. Undisputed evidence was led in this court that they had
attended calls outside Khayelitsha in the past. In fact this court accepts the
Respondent’s evidence that employees are expected to work in all areas. If the
applicants were aggrieved by anything nothing prevented them from taking it up
through a proper grievance procedure.
Inconsistent application of discipline
17. It is correct that other employees of the Respondent in Mitchells Plain, who
also, unhappy with an instruction, filled in sick leave forms, were disciplined but
not dismissed. They were given a final written warning. The difference in the
two cases relate to the fact that in the prior case the employees did not leave at the
same time and that some of them produced doctor’s notes.
18. The issue of Nongqokwana is also relevant. For all intents and
purposes he was guilty of the same offence as the other applicants. It was
found in his favour that, as opposed to the others, he was prepared to
work but did not because the situation was tense. It is common cause that
he was not intimidated or coerced by the others into joining them in their
action. I can find no justification for giving him a less harsher sentence
than the others. It cannot count in his favour that he was prepared to work
but didn’t because the situation was tense. The fact that his state of mind
was more positive than the others is not sufficient. If he was loyal he could
have demonstrated this by performing his work. The fact that he didn’t
perform his work makes him as guilty as everyone else.
19. What the applicants did was unacceptable and must be condemned. Their
conduct demonstrates a complete lack of appreciation of the importance of their
service to the community in general. Death could easily have occurred as a result
of their action. It is a tragedy that in a country confronted by unacceptable high
levels of unemployment one still encounters employees who carelessly put their
employment in jeopardy. It is high time that employees started to appreciate how
fortunate they are to be in employment and earning income to maintain
themselves and their families.
20. I cannot however ignore the fact that employers are entitled to set their own
standards as regards discipline and punishment. It is not for this court to second
guess the standards set by employers for their employees. In this case the
Respondent’s standard for a similar transgression is a final written warning. Were
it not for this situation this court would have no hesitation in confirming the
dismissals of the applicants. The punishment meted out to Nongqokwana is also
relevant. There is no basis for the differentiation in punishment because he was as
guilty as the others who were dismissed. Under the circumstances the dismissal of
the applicants was not fair.
21. In view of the fact that Nongqokwana, who was as guilty as the applicants, is
still in employment as well as the fact that the Mitchells Plain employees were
also not dismissed means that in all fairness the applicants must be reinstated with
a final written warning which was imposed on the Mitchells Plain employees.
22. In so far as compensation is concerned the court takes into account the
seriousness of the offence committed by the applicants as well as the fact that they
attempted to mislead this court as to the reason for booking off sick. This court
also notes that the allegations in their statement of claim were disingenuous to say
the least . They dreamt up a story that they became sick after eating a cow’s head
which caused them to feel nauseous and to vomit. There is not a shred of truth to
these allegations. The court must demonstrate its displeasure at this conduct.
Having considered all the aforegoing I am of the view that it would be fair and
equitable if no compensation is paid to the applicants.
23. The order of the court is therefore:
7. The applicants are reinstated on terms that would apply to them had they not
been dismissed.
8. The applicants must tender their services within 5 days of this order.
9. The applicants are to be given a final written warning effective from the date
of this order.
10. There is no order as to costs.
MLAMBO J.
For the applicants: Mr Steenkamp instructed by Hofmeyer Herbstein Gihwala
Cluver & Walker Inc.
For the Respondent: Mr Rautenbach instructed by Mallinicks Inc.
Date of judgment: 22 June 1999.