Unblemished service may not save you from dismissal

In Mgaga v Minister of Justice and Correctional Services and Others [2024] 7 BLLR 699 (LAC), the employee had been employed by the Department of Correctional Services since 1985. While employed in the position of Head of Waterval Prison, an inmate was stabbed and later succumbed to his injuries. The employee was required to report assaults between inmates to the Area Commissioner within one hour of it taking place (at least telephonically). The employee failed to report the stabbing timeously, and only made a report four days later.

As a result, the employee was placed on suspension and an investigation was instituted. While on suspension, the employee was informed at 7am that he was required to attend a meeting with the Regional Commissioner at 1pm the same day, which meeting was 300km away from Waterval Prison. The employee stated that he would not attend the meeting, and, in any event, he could not do so as he was suspended. A few hours later, the Area Commissioner again informed the employee of the meeting and provided him with a letter that his suspension was lifted for the day. However, the employee stated that he would only attend the meeting if his suspension was lifted all together.

Thereafter, the employee was subjected to two separate disciplinary hearings, one in respect of his failure to timeously report the stabbing incident and the other for his refusal to attend the meeting with the Regional Commissioner. The employee was found guilty of the allegations of misconduct and a sanction of dismissal was imposed.

Aggrieved by the decision, the employee referred an unfair dismissal to the relevant Bargaining Council and sought reinstatement. In relation to the allegation of a failure to report the stabbing incident timeously, the arbitrator found that there was a rule that was known to the employee, and he failed to comply with it. Further, in relation to the allegation of insubordination, the arbitrator found that the employee’s conduct was a wilful disregard of a lawful instruction. Having found the employee guilty of these allegations, the arbitrator was of the view that the only appropriate sanction was that of dismissal.

The employee then applied to the Labour Court (LC) to review and set aside the award. The LC found that it was evident that the employee had committed two serious acts of misconduct. With reference to the test on review, it could not be said that it was a decision that no reasonable decision-maker could have arrived at, and that the dismissal of the employee, even on the two counts of misconduct, was a fair sanction.

The employee took the LC’s judgment on appeal and argued, among other things, that:

· the arbitrator and LC failed to have regard to the unreasonableness of the instruction for the employee to attend a meeting on the same day;

· that he had in fact reported the stabbing to the inspecting judge; and

· that his dismissal for a first time-offender was too harsh, especially having regard to his unblemished record of 29 years of service.

Regarding the employee’s insubordination, the LAC noted that the employee’s argument was not that the instruction was unlawful, but that it was not reasonable given the distance he was required to travel. In this regard, the employee was informed of the meeting at 7am and he had sufficient time to make the necessary arrangements to attend the meeting. He, however, had no intention of attending the meeting. Further, the employee demanded that his suspension be lifted altogether for him to attend the meeting. This again indicated that he had no intention of attending. The LAC found that the employee’s conduct in imposing conditions to carry out a lawful and reasonable instruction was ‘quite outrageous’.

As regard to the employee’s failure to report the assault, the LAC found that the employee’s attempt to justify his failure by claiming that he had reported the incident to the inspecting judge was puzzling. The employee knew the rule that he was required to report the incident to the Area Commissioner within the hour. It accordingly defied common sense that he would do everything else but what he should do in terms of the rule. It is common cause that he failed to report the incident to the Area Commissioner.

Lastly, in respect of the issue of sanction, the LAC noted that the employee was the head of a prison, a position of enormous responsibility. A prison is a volatile environment and those responsible for running it must know that rules must be followed to maintain discipline. The employee knew the rule but deliberately failed to comply with it. This misconduct was then compounded by a refusal to carry out a lawful and reasonable instruction. The employee’s actions displayed a disregard for authority which could not be tolerated in the prison environment. The fact that the employee had 29 years of unblemished service could accordingly not save him from the sanction of dismissal.

The appeal was dismissed with no order as to costs.

Nadine Mather