APPEAL JUDGMENT 27
February 2006
ANN AND ALE JP:
[1] This is an
appeal against a judgment of the Industrial Court and involves the
Industrial Relations Act, No. 1 of 2000 ("the Act.").
[2] The appellant
is a security company which employed several security guards
including the respondent.
[3] The appellant
dismissed the respondent and the respondent caused the matter to be
brought before the Industrial Court. The Industrial Court found in
his favour and the appellant noted an appeal to this court.
[4] The grounds of
appeal are set out as follows in the notice of appeal:
"1, The
Court a quo erred in law in finding that the Respondent was not
given a lawful order by the Appellant's General Manager on the
1st
September
2001 which the Respondent disobeyed is as much as there are no legal
basis for contending that the said order had to be conveyed by the
General Manager himself and not by an officer in a supervisory
position to the respondent.
2. The Court a
quo erred in law in finding that the Applicant was not dismissed for
a reason permitted by Section 36 of the Employment Act in as much as
it was common cause that the offence for which the respondent was
found guilty is a dismissable offence in accordance with the
Respondent's contract of employment and the Appellant's disciplinary
code.
3. The Court a
quo erred in law in the manner in which it evaluated the evidence
before it resulting in it unjustifiably attaching much weight to the
evidence adduced by the respondent whilst failing to attach proper
weight to the evidence of the appellant including its witnesses who
had corroborated each other in all material respects.
4. The Court a
quo erred in law in finding that the dismissal of the Respondent was
procedurally unfair in as much as:
4.1 There
are no allegations in the Respondent's
application in the Court a
quo that there was any
procedural unfairness in the dismissal;
4.2 The
Court furthermore found it unnecessary for
Appellant's counsel to
address it on that aspect of the
matter during submission as it
expressed it was
satisfied that there had been procedural
fairness."
[5] The crux of the
appellant's case was that a lawful order was given to the respondent
and that the respondent disobeyed it and that the appellant was thus
lawfully dismissed.
[6] After his
dismissal the appellant took the matter up further and the
Industrial Court ruled in his favour and made a total award in his
favour in the amount of E12,214.00 and ordered the respondent to pay
the appellant's costs.
[7] The appellant
was in the employ of the respondent as a security guard and the
appellant worked as a member of a "cash crew" being a
group of security guards which accompanied cash in transit.
[8] The facts of
the matter were conveniently and correctly summarised by the court a
quo in
its judgment and I quote verbatim
the
relevant passage as it appears on pages 64-66 thereof:
"Upon a
careful analysis of the evidence by the Respondent's witnesses and
that of the Applicant the court has found the following to be
factual:
1. That the
guards ordinarily worked form 6 a.m. to 6 p.m. (12hrs) for six days.
That is from Monday to Saturday.
2. That the cash
crew was occasionally released early by the Managers if there as no
more work to be done.
3. That the cash
crew transported cash to and from the banks and the banks at the
material time closed at 11.00 a.m. on Saturdays.
4. That
security guards as well as the cash crew could
not perform their
duties without uniform.
5. That on the
Is
September 2001 the Applicant was a cash crew security leader. He had
two security guards and had arrived at the station at Matsapha
around 11.00 am.
6. That the
Applicant as at the time the General Manager called for personnel to
go to the Airport was in civilian clothing. His uniform was in a
paper bag.
7. That none of
the Respondent witnesses checked to see if the uniform was wet or
not.
8. That none of
them could positively deny that the Applicant had asked to be given
time to go and collect spare uniform at home since his was wet.
9. That the
General Manager did not directly give instructions to the Applicant
to go to the Airport nor did he listen to his story before he
suspended him on the material day.
10. One cannot
rule out the possibility that the Applicant had already washed his
clothes.
11. Mr Magagula,
the manager who was said to have released the Applicant and his crew
was not called to testify and no explanation for his absence was
given.
12. Out of the
crew of three (3) the Applicant and Hlatshwayo were dismissed for
defying lawful instructions yet there was no explanation as to why
the third member of the crew was not disciplined.
From the
totality of the above the court has come to the conclusion that upon
arrival at the station, the Applicant and his cash crew were
informed that they could go home by Prince Maseko on instructions of
Mr Magagula. This explains why the Applicant had washed his uniform
and one of his colleagues had gone home.
That no direct
instruction was received by him from the General Manager and the
explanation he gave to his colleagues for inability to join them was
reasonable in the circumstances of the case. The General Manager
missed a good opportunity to immediately get the facts from the
Applicant on the material day and was out of order to suspend him
without hearing his side of the story.
The evidence by
the Respondent's witness appear to be orchestrated especially in
denying that the Applicant had washed his uniform yet none of them
had bothered to check if indeed that was the case. The court finds
that these witnesses especially Prince and Ndlovu were not candid
with the court on this issue.
The Respondent
has in the circumstances of the case failed to prove that the
Applicant was given a lawful order by the General Manager on the 1st
September 2001 and that the Applicant had disobeyed the order.
Therefore the
Applicant was not dismissed for a reason permitted by Section 36 of
the Employment Act. The dismissal was both substantively and
procedurally unfair considering all the circumstances of the case
outlined herein.
Though obeying
orders in the security services is of essence and goes to the root
of the business, orders by supervisors must not only be lawful but
must be reasonable and capable of compliance.
An employee
cannot be said to have defied an order that clearly he was not in a
position to comply with. A security guard cannot be stationed at the
busy Matsapha Air Show if he is not in uniform. The Applicant had
washed his uniform upon being given authority to knock off by a Line
Manager. He ought to have been given opportunity to explain his
predicament before he was inhumanely suspended on the spot."
[8] Having studied
the evidence and having compared it with the quoted findings of the
court a
quo I
am satisfied that the court a
quo was
warranted to make those findings. Had it concluded otherwise, it
certainly would have erred.
[9] I have
carefully studied the record of the appeal and am satisfied that the
court a
quo correctly
made the factual and other findings which I have quoted extensively
the above. The facts of the matter are straightforward and
uncomplicated. The employer acted capriciously, unwarranted and
unfairly, as was correctly found by the trial court. It was
unwarranted to appeal against the inevitable finding of the court
below.
[10] I thereafter
considered the grounds of appeal and carefully considered argument
of both the appellant and respondent. I am satisfied that there are
no merit in any of the grounds of appeal and that the appeal should
be dismissed with costs.
