The firing of a Western Cape Department of Health employee for – among other things, disrespectful behaviour – was fair and reasonable, ruled the Labour Court last week in dismissing an application to overturn an arbitration award that upheld his dismissal, reports IOL.
Judge Robert Lagrange found that Nqaba Albertus Mphalwa, who worked as a central processing operator at Red Cross Hospital, failed to show any irregularity in the arbitration proceedings that would justify setting aside the award, and that his dismissal was both procedurally and substantively fair.
Mphalwa had worked for the department since 2015 before being fired in April 2023 after an internal disciplinary process and unsuccessful appeal, but he then approached the Labour Court to review the arbitration ruling.
Initially, he was facing six charges, however, by the time the matter reached arbitration, one of the charges had been withdrawn because it had previously been addressed in an earlier disciplinary process.
The arbitrator therefore considered five remaining allegations, including prolonged absence from work without permission, repeated failure to follow instructions relating to medical certificates, sending disrespectful emails to management, and leaving the workplace despite direct instructions not to do so.
Central to the dispute were emails Mphalwa sent to his supervisor, T Itumeleng, which the department said were disrespectful and offensive.
In one message, Mphalwa wrote: “Don’t get frustrated I have responded but not with a (fist emoji). Let’s pray they don’t hit you again.”
The comment referred to a previous incident where other staff had assaulted the supervisor. Evidence before the arbitrator was that the email deeply upset Itumeleng and contributed to a deteriorating working relationship.
The supervisor testified that the relationship had become so strained he had ultimately applied to transfer to another hospital.
A major issue in the review application was Mphalwa’s claim that it was unfair for the disciplinary hearing to proceed in his absence due to illness. The court noted that the hearing had already been postponed multiple times at his request, and that he had been clearly warned that further postponements would require objective medical confirmation or testimony from his doctor.
When he neither attended nor provided the requested medical evidence, the hearing proceeded without him and resulted in his dismissal.
Lagrange agreed with the arbitrator that the employer had “bent over backwards” to accommodate him and that proceeding with the hearing was reasonable and necessary to bring the matter to finality.
One of the most serious findings against Mphalwa was that he had attempted to mislead the arbitrator by relying on documents that were found to be unauthentic.
Among these was a purported agreement stating that a supervisor had authorised him to leave work for annual leave to attend a psychiatric appointment. The supervisor denied drafting or signing the document.
Mphalwa argued that the arbitrator should not have questioned the authenticity of the documents without expert evidence. The court rejected this argument, emphasising that the burden rests on the person relying on a document to prove its authenticity.
The court dismissed the review application, condoned the late filing of the employer’s answering affidavit, and made no order as to costs, the judgment bringing to an end Mphalwa’s attempt to overturn the arbitration ruling.
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