Justice André van Niekerk in Ethekwini Municipality v Samwu bo Mlambo (D328/2013) [2015] ZALCD 2 (8 January 2015)

[28] . . . The manner in which the disciplinary process was managed is entirely inimical to the statutory purpose of expeditious dispute resolution.  The parties appear to have conducted the disciplinary enquiry as if it were a criminal trial, with technical point taking, requests for postponements at every stage and a procedure more suited to the magistrates’ court.  The Act and the Code of Good Practice: Dismissal envisage a simple internal disciplinary process during which an employee must be afforded the right to respond to allegations of misconduct made by the employer.  I fail to appreciate why the parties (and the applicant in particular, ultimately the manager of the disciplinary process) allowed this matter to be conducted as it was.  The consequent waste of time, money and other resources was ultimately for the account of the ratepayers of Ethekwini.

Introduction

[1] This is an application to review and set aside an arbitration award made by the third respondent, to whom I shall refer as ‘the arbitrator’. In her award, the arbitrator found that the dismissal of Mr. Mlambo (‘the employee’), on whose behalf the applicant acts, was substantively and procedurally unfair. The arbitrator ordered that the employee be reinstated with retrospective effect.

The material facts and the arbitrator’s award

[2] The evidence of each of the witnesses who testified during the proceedings under review is recorded in the award. It was not disputed that in July 2009, the employee was authorised to possess his service firearm but only while on duty or travelling to and from work, and that the firearm otherwise had to be kept in a safe in conformity with the applicable regulations. It was also not disputed that on 8 November 2009 at about 21h00 in Amaotana, the applicant was in possession of his firearm outside of working hours in contravention of the relevant authorization, and that a number of shots were discharged from the firearm, causing serious injury to one Sibusisu Ngiba.

[3] Two charges were brought against the employee. Both related to a failure to comply with relevant conditions of employment, policies and practices. In particular, it was alleged first that the employee was in possession of a firearm contrary to the applicable conditions and secondly, that he had discharged a firearm or allowed it to be discharged in circumstances where bodily harm was caused to Ngiba.

. . . .

[27] The facts of the present case are such that the employee knew and understood the rule regarding the position of a firearm without authority, the incident occurred while he was off duty, intentionally carried his firearm with him and he went to visit his mother in the Amaotana area, he had not sought the prior permission of his employer to carry the firearm in those circumstances, he breached the rule regarding the possession of firearms, he became involved in an altercation, during the course of that altercation, his firearm discharged two bullets in circumstances where a civilian, who was not one of the assailants, was seriously injured. What must weigh heavily against the employee is the fact that he took a conscious decision to carry his firearm into an area with a high crime rate in breach of the conditions of issue. It is beyond dispute that the employee’s misconduct was serious and in my view, sufficiently serious to warrant the penalty of dismissal. Even if I were to grant the employee the benefit of the doubt in relation to the charges relating to the discharge of a firearm, the charge of unlawful possession of a firearm in the present circumstances and having regard particularly to its consequences, alone warrants dismissal. For these reasons, I intend to substitute the award made by the arbitrator with one that reflects the substantive and procedural fairness of the employee’s dismissal.

Costs

[28] The court has a broad discretion to make orders for costs, according to the requirement of the law and fairness. The court does not ordinarily make orders for costs in circumstances where there is a collective bargaining relationship between the parties, and where a costs order might serve to prejudice that relationship. In the present instance, there is no compelling reason to depart from that approach.

[28] (sic) Finally, by way of an aside, I wish to make a comment about the procedure adopted in relation to the incident that gave rise to these proceedings. The shooting took place on the evening of 8 November 2009.

On 19 November 2009, the employee was suspended on full pay. The employee was served with notice of the allegations against him only on 13 May 2010.

The disciplinary hearing was scheduled to commence on 27 May 2010.

The parties agreed to postpone the proceedings until July 2010 after the soccer World Cup tournament had ended.

The enquiry did not proceed on 19 July 2010 on account of an application for the recusal of the presiding officer.

On 28 July 2010 the union objected to the appointment of any official from within the Durban Metro Police to chair the enquiry. A presiding official was appointed only in December 2010.

A second notice of a disciplinary enquiry was served in April 2011, and an enquiry scheduled for 19 April 2011. The union took issue with the second notice of an enquiry and declared a dispute on 6 May 2011.

The matter was arbitrated on 22 July 2011, and an award handed down in October 2011.

The disciplinary enquiry resumed on 17 October 2011 and adjourned to the next month at the union’s request. The enquiry was again postponed a number of times during November on account of the unavailability of union officials and eventually got underway on 28 November.

The enquiry dragged on into February 2012, and was concluded only on 2 April 2012 when the employee was dismissed.

The appeal hearing was concluded only in September 2012, almost three years after the shooting. The manner in which the disciplinary process was managed is entirely inimical to the statutory purpose of expeditious dispute resolution.

The parties appear to have conducted the disciplinary enquiry as if it were a criminal trial, with technical point taking, requests for postponements at every stage and a procedure more suited to the magistrates’ court.

The Act and the Code of Good Practice: Dismissal envisage a simple internal disciplinary process during which an employee must be afforded the right to respond to allegations of misconduct made by the employer.

I fail to appreciate why the parties (and the applicant in particular, ultimately the manager of the disciplinary process) allowed this matter to be conducted as it was. The consequent waste of time, money and other resources was ultimately for the account of the ratepayers of Ethekwini.