MALABA
DCJ:
This
is an appeal against that part of the judgment of the Labour Court by
which it set aside the decision of the initial hearing by the
appellant to dismiss the respondent from employment following a
finding of misconduct in that she participated in an unlawful
collective job action on 4 May 2004. The court a quo substituted for
a dismissal a penalty of a final written warning and ordered
reinstatement alternatively payment of damages.
The
Labour Court did so after consideration of three factors which it
took to be mitigatory. These were that; the participation was for two
hours, the duration of the collective job action was short; and there
was no evidence of previous convictions. The contention by the
appellant is that the court a quo misdirected itself in the exercise
of its discretion. The court agrees that there was a serious
misdirection on the part of the court a quo.
The
fact of the respondent's participation for a period of two hours is
not a mitigating factor because that was the duration of the unlawful
collective job action. The offence she was charged with was of
participating in an unlawful job action regardless of its duration.
Even assuming that the respondent was a first offender the court a
quo had to take into account the fact that the employer considered
the misconduct as one that was so serious as to go to the root of the
contract of employment.
The court clearly did not apply its
mind to the fact that it was dealing with a case of an exercise of
discretion by an employer and that it could not interfere with the
decision to dismiss without a finding of misdirection on the party of
the employer. The reliance on the fact of the respondent being a
first offender to set aside the dismissal in the absence of a finding
of misdirection on the part of the employer was improper.
The
unanimous view of the court is that the appeal succeeds.
Accordingly
it is ordered as follows:
1.
The appeal is allowed with costs.
2.
The judgment of the court a quo setting aside the dismissal of the
respondent and ordering her reinstatement is hereby set aside and
substituted with the following order:
"That
the dismissal of the respondent be and is hereby confirmed with
costs".
ZIYAMBI JA:
I agree
GOWORA AJA:
I agree
Gill,
Godlonton & Gerrans, appellant's legal practitioners
Honey
& Blanckenberg, respondent's legal practitioners
