Workplace Rules and Instructions are Not Negotiable

The facts in Mgaga v Minister of Justice and Correctional Services and Others (DA 17/21) [2024] ZALAC 8 (11 April 2024) were that:

• Mgaga commenced employment with the Department of Justice and Constitutional Services in 1985 – he had about 29 years of service.
• At the date of his dismissal, he held the post of Head of the Waterval Prison.
• On 17 August 2012, two inmates at Waterval Prison were involved in a fight, one later in hospital succumbed to his injuries.
• As the head of the prison, Mgaga, as Head of the Prison was required, as stipulated in the Procedural Guidelines: Reporting of Security Related Incidents (Procedural Guidelines), to report the incident to the Area Commissioner (immediate head) within an hour of the incident taking place, at the very least telephonically.
• Mgaga made such a report 4 days later on 21 August 2012.
• The report lacked clarity and Mgaga was advised to redo the report and an acceptable report was then filed on 22 August 2012.
• Mgaga was placed on suspension and a departmental investigation was instituted for his failure to report the incident to the Area Commissioner as required.
• While on suspension, Mgaga was informed by telephone call by the secretary of the Regional Commissioner at 07h00 that he needs to attend a meeting with the Regional Commissioner at 13h00 on the same day.
• The meeting was to take place at Pietermaritzburg some 300 km away from the Waterval prison.
• Mgaga informed that he would not attend the meeting, and, in any event, he was suspended, so could not do so. It appears that he also added that the notice to attend the meeting was too short.
• Part of Mgaga’s suspension conditions was that he must sign the register at Waterval Prison daily. On that day he did it at about 10h00.
• When at the prison the Area Commissioner once again informed Mgaga of the meeting with the Regional Commissioner and handed Mgaga a letter to say that his suspension was lifted for the day – this letter was prompted because of Mgaga’s statement that he was on suspension so could not attend the meeting.
• On receiving the letter, Mgaga’s reaction was that the letter was simply inadequate as he would only attend the meeting if his suspension was lifted altogether and not just for the day to attend a meeting.
• Mgaga did not attend the meeting.

Mgaga was subjected to two separate disciplinary enquiries. One related to the non-reporting of the assault and the other was a charge of insubordination for his refusal to attend the meeting with the Regional Commissioner. He was found guilty of each of the misconduct offences, and the sanction of dismissal was imposed. His internal appeal failed.

At arbitration, at the BC, the commissioner found that Mgaga had committed the following misconduct offences:

• i) insubordination as the instruction issued to Mgaga, whilst on suspension, was a lawful instruction and that the appellant committed misconduct in that regard;
• ii) failure to report the incident to the Area Commissioner in accordance with the prescribed rules and procedures as there was a standard or rule that was known to the Appellant and he failed to comply with it. The Appellant confirmed that he was aware of the rule and conceded that he had not complied with the procedures in relation to reporting the incident to the Area Commissioner; and
• iii) failure to report the incident to the Inspector Judge in accordance with the prescribed rules and procedures.

Having found the Appellant guilty of three of the charges, the arbitrator was of the view that the only appropriate sanction was that of dismissal.

The Labour Court held that the evidence, on the basis of which the arbitrator found that the Appellant had committed misconduct in failing to report the incident to the Judge Inspector, was insufficient for a commissioner in the stead of the arbitrator to reasonably have found the Appellant guilty.  For the rest the Labour Court concurred with the commissioner as:

• since Mgaga conceded that he failed to comply with the Procedural Guidelines, it follows that he was guilty of the charge against him and no explanation for such non-adherence was forthcoming from him. The written representations about the incident were not a mitigating factor because the report was only delivered by 20 or 21 August 2012.
• The court found that Mgaga made a conscious decision to defy the instruction issued to him to attend the meeting with the Regional Commissioner.

The Labour Court held that on the material before the arbitrator, it was evident that the Appellant committed two serious acts of misconduct adding that it could not be said that, on the test for review as laid out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others, that it was a decision that no reasonable decision-maker could have arrived at, and that dismissal of the Appellant, even on the two counts of misconduct, was a fair sanction.

At the LAC, Mgaga made the argument that although the instruction was lawful, it was not reasonable.  The LAC found that had Mgaga been serious about attending the meeting, he had sufficient time to make the necessary arrangements to be on time for the meeting.  Mgaga had no intention to attend the meeting as he had indicated to Ms Loots who informed him of the meeting that he would not attend the meeting.  Further the fact that he was not given an agenda is not only irrelevant but borders on arrogance.  Further Mgaga’s demand that his suspension be lifted altogether for him to attend the meeting indicates that he had no intention of attending the meeting and tried to find reasons for not doing so. In any event, for him to put conditions to carry out a lawful and reasonable instruction from his employer is quite outrageous.

At the LAC, Mgaga again conceded his failure to comply with the Guidelines Procedures, however, he argues that the arbitrator should have taken into account that it was a first-time offence and that he had no intention to hide the incident from the Area Commissioner as he had reported it to the Inspecting Judge and had made a note of it in the HCC diary, albeit through a subordinate.  The LAC found these arguments rather puzzling as Mgaga “states in no uncertain terms that he knew the rule that he was required to telephonically report the incidence within the hour of its occurrence to the Area Commissioner. In the circumstances, it defies common sense that he would do everything else but what he should do in terms of the rules. In any event, what he did do, assuming that he did what he said, is irrelevant and does not take the matter any further.”

As to sanction Mgaga argued at the LAC that the dismissal was too harsh a sanction as he was a first-time offender with long service (about 29 years) with the employer with no previous disciplinary infringement.  The LAC concurred with the commissioner and the LC that Mgaga committed two serious misconducts.  The LAC reiterated that Mgaga was the head of a prison, a position of enormous responsibility and that in such an environment there can be no half-measures.  As Mgaga “knew the rule he was required to comply with but deliberately failed to do so. This cannot be acceptable. This misconduct is then compounded by a refusal to carry out a lawful and reasonable instruction to attend a meeting with the most senior manager in his Region. His actions displayed a disregard for authority which cannot be tolerable in the prison service.  Cumulatively the Appellant’s conduct belies an employee that is blasé with the rules. In my view, he portrays the actions of a recalcitrant employee. The fact that he has 29 years of service without blemish cannot save him from the sanction of dismissal.”  The appeal to the LAC failed.