A former Department of Correctional Services (DCS) employee has been dismissed for insubordination after refusing to escort an ill inmate to hospital, the order coming after the DCS successfully appealed a previous ruling made by the Labour Court in Johannesburg.
The court heard that when he had initially refused to carry out the instruction, he had said he was leaving work early because it was his birthday; then when he was confronted with dishonesty, said it was his wife’s birthday, and then the third time, flatly refused, saying he was going to lunch.
Sanction
IOL reports that the Labour Court had set aside a sanction of dismissal and substituted it with an order of reinstatement with a final written warning for the warden, who was based at Atteridgeville Correctional Centre, and whose tasks included escorting inmates to court or hospital.
But TD Kutu, dismissed in August 2019 after a disciplinary hearing on three charges of misconduct related to his failure to carry out instructions, referred the unfair dismissal dispute to the General Public Service Sector Bargaining Council (GPSSBC) after a failed conciliation.
At the bargaining council, the unit manager had testified that in July 2018, the prison clinic had called asking for an escort to take an ill inmate to Kalafong Hospital.
At the clinic, where the nurse told him the inmate had a kidney and bladder problem, he asked Kutu to assist with escorting the prisoner to hospital, which is when the warden gave three excuses in a row to justify his refusal.
Asked not ordered
In his defence, Kutu denied being given a reasonable instruction to escort the inmate, saying his manager was “requesting assistance” but did not specifically “order him” to escort the inmate.
He also claimed he was a victim of a conspiracy orchestrated by the head of the prison to dismiss him because he had changed trade unions.
The arbitrator found it immaterial that the manager had used the word assistance instead of ordered when he issued the instruction, as it was Kutu’s job to escort prisoners.
He said Kutu was found guilty as charged, and the dismissal was appropriate, considering the seriousness of the inmate’s medical condition.
Kutu lodged a review application in the Labour Court, and argued that since the instruction was given “casually”, he thought he had a discretion to refuse to assist. He had been with the department for 17 years and was not a problem employee or had a record marred with disciplinary incidents.
The judge said he was not satisfied Kutu’s misconduct justified an immediate dismissal, and substituted the dismissal with an order of reinstatement with a final written warning.
However, the DCS went to the Labour Appeal Court, where Judge Portia Nkutha-Nkontwana found the Labour Court had erred in finding Kutu was not a problem employee because there was evidence of three existing disciplinary warnings. They were verbal, written and final and pertained to insubordination.
The judge said this evidence was not seriously challenged, and that the appeal by DCS “must succeed, and the order of the Labour Court pertaining to the sanction falls be set aside”.