SAMWU obo Warnick v City of Cape Town and Others (C735/2021) [2024] ZALCCT 3 (25 January 2024)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

JUDGMENT

Case Number:C735/2021

Not Reportable

In the matter between:

SAMWU obo W WARNICK Applicant

and

CITY OF CAPE TOWN First Respondent

SALGBC Second

Respondent

ORLANDO MOSES N.O.

Third Respondent

Date Heard: 10 August 2023

Date Delivered: 25 January 2024

RABKIN-NAICKER J

[1] This is an opposed application to review an arbitration award under case number WCP 022104. In terms of the Award the third respondent (the Arbitrator) found the dismissal of Mr. Wilton Warnick (the employee) to have been procedurally and substantively fair. The review application was filed 7 days late and there is no opposition to the condonation sought for this short delay. I grant condonation and consider the review on its merits, The background to the dispute is set out in the Award as follows:

“Background to the dispute

4.The Applicant was employed as Law enforcement officer for the Respondent, the City of Cape Town Metropolitan Municipality, at the Atlantis IRT and was paid a monthly salary of R15376.00 (fifteen thousand three hundred and seventy-six rand) at the time of termination. The Applicant was charged with nine incidents of misconduct and was found guilty of the following charges:

Charge 1

It is alleged that you committed an act of gross insubordination when you were in non-compliance with Traffic Operations: Transport Enforcement Unit’s Force order No 43/2019. In terms of the force order you were booked to work the early shift scheduled for 04h30–13h00 but on the following days, you without the necessary permission or authority to do so, worked the following shift

22 October 2019 – 13h19-22h00

23 October 2019 – 13h22-22h00

24 October 2019 – 13h27-22h01

25 October 2019 – 13h25-22h00

Charge 2

It is alleged that you committed an act of gross insubordination when you were in non-compliance with Traffic Operations: Transport Enforcement Unit’s Force order No 44/2019. In terms of the force order you were booked to work the early shift on Monday the 28th of October 2019 scheduled from 04h30-13h00 subsequently followed by a late shift scheduled from 10h00-18h30, but on the following days, you left without the necessary permission or authority to do so, worked the following shift

22 October 2019 – 05h49-14h30

23 October 2019 – 05h46-14h33

24 October 2019 – 05h55-14h32

25 October 2019 – 05h56-14h30

Charge 5

It is alleged that you committed an act of gross insubordination when you were in non-compliance with Traffic Operations: Transport Enforcement Unit’s Force order No 45/2019. In terms of the force order you were booked to work the early shift scheduled from 04h30-13h00 but on the following days, you without the necessary permission or authority to do so, worked the following shifts:

04 November 2019 – 13h18-22h06

05 November 2019 – 13h17-22h01

06 November 2019 – 13h20-22h05

07 November 2019 – 13h20-22h10

08 November 2019 – 13h19-22h00

Charge 6

It is alleged that you committed an act of gross insubordination when you were in non-compliance with Traffic Operations: Transport Enforcement Unit’s Force order No 46/2019. In terms of the force order you were booked to work the night shift scheduled for 15h30-24h00 but on the following days, you without the necessary permission or authority to do so, worked the following shift

11 November 2019 – 05h50-14h33

05 November 2019 – 05h43-14h32

06 November 2019 – 05h53-14h30

Charge 7

It is alleged that on or about 19 November 2019 you committed an act of gross dishonesty when you claimed night shift allowance for the following days

04 November 2019

05 November 2019

06 November 2019

07 November 2019

08 November 2019

When the scheduled Force Order 45/2019 was 05h30-13h00

Charge 8

It is alleged that on or about 19 November 2019 you committed an act of gross dishonesty when you claimed standby allowance for the following days

11 November 2019

12 November 2019

18 November 2019

Whilst you worked an unscheduled shift which is reflected as 08h00-14h30 without the necessary permission or authority to do so

Charge 9

19 November 2019

20 November 2019

21 November 2019

22 November 2019

Whilst your approved shift for this week as per Force Order 47/2019 were scheduled as 10h00-18h30 for Monday the 18th of November 2019 and subsequently followed by the early shift which were scheduled as 04h30-13h00 till Friday 22nd of November 2019.”

[2] The Arbitrator, in an Award comprising 86 paragraphs, painstakingly recorded the evidence of all the witnesses before him. He found that the employee’s failure to comply with the Force Order was persistent, deliberate, and willful and that it amounted to gross insubordination. He records in his analysis of the evidence before him that:

“Evidence was tendered that Inspector Jephta consulted and instructed Applicant to work according to force order 43/2019, 44/2019, 45/2019 and 46/2019 and the Applicant informed her that he would not comply with the instruction. The Applicant consistently disobeyed the instructions of his supervisor which instructions was issued via email and given to him verbally and I find that the Applicant’s conduct grossly undermined the authority of his his supervisor.”

[3] The employee testified at the arbitration as to the ‘challenges’ he and others had when the shift system changed. Previously, when they fell under the Law Enforcement department and before being transferred over to Traffic Management, they worked only the 16.30 shifts and 6hr to 13.30 shifts. He explained that his time statements under the new system reflected short hours and he was not able to take half days as leave under the new system. It was only in 2018 that they realized that there was a conflict between the shifts on the two different systems when he tried to book a half days leave. It was put to the employee under cross-examination that his supervisor had handed him the work schedule rule form for completion, which he refused to fill in. He replied as follows:

“MR WARWICK: Chair, because of the fact that the shifts were still on the DLC matter, our union intervened and our union informed the management that we as members don’t have to sign anything because the shifts were still on for discussions. So at the time the members didn’t sign. It was only in 2019 when new members started they signed for the shifts, but the shifts still didn’t appear on the SAPS Portal. The advice was given to us that we don’t have to sign anything, because the shift was still up for discussion.”

[4] It was conceded by the employee under cross-examination, that when his supervisor came to see him regarding the problem, he informed her that he will only work SAP Portal shifts until the SAP Portal and the Force Order were in line. It was also his evidence in chief, that his supervisor had warned him that he would be monitored if he continued

to refuse to work the correct shifts and that charges may follow.

[5] The finding by the Arbitrator that his refusal to obey an instruction by his supervisor amounted to gross insubordination is in the Court’s view well within the bounds of reasonableness. There was no basis in the evidence before him or in law, to establish that the said instruction was unreasonable or unlawful.

[6] As for the charges related to dishonesty for claiming stand by allowance, the Arbitrator found that the employee was guilty of dishonesty in relation to the charges of dishonesty in claiming a standby allowance on 11, 12 and 15 November 2019:

“Evidence was tendered that the Applicant was scheduled to work in terms of Force order 46/2019 from 15h.30-24h00 but again he worked an unauthorized shift from 06h00-14h30. The Applicant in this instance was scheduled to work the nights shift but did not do so. He worked the early shift and was therefore not entitled to claim the standby allowance. The union is correct that the Applicant was scheduled to be on standby from 11-15 November 2019, but evidence was tendered that to claim the night allowance the Applicant had to work as per the force order shift. The Applicant is the person who submitted the claim and cannot blame the supervisor for a claim he submitted. The Applicant claimed the night allowance with the full understanding that he did not work according to the force order and knowing that he did not work between 15h30-24h00 and I find that the Applicant’s conduct claiming the standby allowance was dishonest and I find the Applicant was guilty of this allegation.”

[7] The Arbitrator then went on to cogently consider whether the conduct of the employee, being a first offence, warranted dismissal. He did so while taking all the relevant circumstances of the dispute into account. The Arbitrator also dealt with the evidence led by the employee that he was the victim of inconsistent treatment equally carefully and drew out from the evidence before him the distinction as to the way in which one Officer Sedina was disciplined as opposed to the employee. It is well to remember in any event, that is trite that consistent discipline is not an immutable principle.

[8] I agree with the submissions of the first respondent that the application before me is more akin to an appeal than a review. There is simply no basis to review this Award taking the jurisprudence of the Labour Courts into account. The Award itself was of a high standard and reflects a meticulous evaluation of the evidence and proper application of the law. I do not make a costs order in this matter given the ongoing relationship between the parties. However, I do wish to express some displeasure that such a meritless application took up the Labour Court’s roll. I make the following order:

Order

1. The review application is dismissed.

2. There is no order at to costs.

________________

H.Rabkin-Naicker

Judge of the Labour Court

Appearances:

Applicant: Macgregor Erasmus Attorneys

First Respondent: T du Preez instructed by CK Attorneys