Labour Court Appeal upholds dismissal of warden who refused to transport sick inmate to hospital

A former employee at the Department of Correctional Services (DCS) has been dismissed for insubordination following his refusal to escort an inmate who had a serious medical condition to hospital.

The dismissal comes after the DCS successfully appealed a previous ruling made by the Labour Court in Johannesburg. The Labour Court had set aside a sanction of dismissal and substituted it with an order of reinstatement with a final written warning.

TD Kutu worked as a prison warden at the Atteridgeville Correctional Centre. He was dismissed in August 2019 following a disciplinary hearing on three charges of misconduct pertaining to failure to carry out instructions.

Among other things, Kutu’s duties included escorting inmates to court or hospital, escorting them to clean offices and accommodation of officials and guarding them in field duties. 

Kutu referred an unfair dismissal dispute to the General Public Service Sector Bargaining Council (GPSSBC) following a failed conciliation.

At the bargaining council, Malungwana, the unit manager, testified that in July 2018, he received a call from the prison clinic requesting an escort to take an inmate to Kalafong hospital.

He went to the clinic to enquire about the situation and the nurse informed him that the inmate had a kidney and bladder problem, and he could not urinate. As he came out of the clinic, he came across Kutu and asked him to assist with escorting the sick inmate to hospital.

Kutu refused to assist, stating that, as it was his birthday, he was going to knock off at 12pm.

Malungwana said he was not convinced that it was Kutu’s birthday as he had been working with him for a long time. He went to the human resource office to verify Kutu’s birthday, and he learned that his birthday was on September 22.

He went back to Kutu and confronted him about his dishonesty. Kutu then changed his story and said he confused his birthday with that of his wife. Malungwana asked him again to escort the inmate, he refused again and said he was going for lunch.

As part of his duties, Kutu had to escort inmates to court or hospital, escorting them to clean offices and accommodation of officials and guarding them in field duties. 

In his defence, Kutu denied that he was given a reasonable instruction to escort the inmate to hospital. His evidence was that Malungwana informed him that he was requesting assistance but did not specifically order him to escort the inmate.

Furthermore, he claimed that that he was a victim of a conspiracy that was orchestrated by the head of the Correctional Centre to dismiss him because he had changed trade unions.

The arbitrator found it immaterial that Malungwana used the word assistance instead of ordered when he issued the instruction since it was Mr Kutu’s duty to escort inmates.

Therefore, Kutu was found guilty as charged. Regarding the sanction, the arbitrator found the dismissal appropriate, having taken into consideration the seriousness of the inmate’s medical condition.

Kutu lodged a review application in the Labour Court and contended that the arbitrator failed to consider the relevant evidence, particularly, the evidence that showed that there was no instruction.

Kutu argued that since the instruction was given in a casually, it gave him the impression that he had a discretion to refuse to assist.

The court found that Kutu had been with the department for 17 years and it cannot be said that he was a problem employee or that his record is marred with disciplinary incidents.

The judge said he was not satisfied that Kutu's misconduct was justified as an immediate dismissal, especially in a system which has restorative justice as one of its tenets.

The judge set aside a sanction of dismissal and substituted it with an order of reinstatement with a final written warning.

Aggrieved, the DCS went to the Labour Appeal Court to overturn the decision and Judge Portia Nkutha-Nkontwana presided over the case.

The judge said the Labour Court erred in finding that Mr Kutu was not a problem employee because there was evidence showing that Kutu had three existing disciplinary warnings. The three disciplinary warnings were verbal, written and final written pertained to insubordination.

Judge Nkutha-Nkontwana  said this evidence was not seriously challenged.

"In all the circumstances, the appeal by DCS must succeed, and the order of the Labour Court pertaining to the sanction falls to be set aside," said the judge.

sinenhlanhla.masilela@iol.co.za

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