Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR1379/01
2003.03.18
In the matter between
XOLANI KHANYA 1st Applicant
JABULANI DMADI 2nd Applicant
MESHACK RAMSEY 3rd Applicant
LUCKY SIWUNDLA 4th Applicant
and
PHILLIP COHEN 1st Respondent
SECTORIAL BARGAINING 2nd Respondent
MINISTER OF HOMES AFFAIRS 3rd Respondent
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J U D G M E N T
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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.
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PILLAY, J
FOR THE APPLICANT : ADVOCATE BUIRSKI
INSTRUCTED BY : MASHILE-NTLHORO INC.
FOR THE RESPONDENT : ADVOCATE HULLEY
INSTRUCTED BY : STATE ATTORNEY
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