The Johannesburg Labour Court has largely upheld an arbitration award reinstating a Gibela Rail Transport Consortium (“Gibela”) warehouse supervisor who was dismissed following a hijacking incident involving a company vehicle, though the court amended the award to include a final written warning.
William Dube (“Dube”), employed by Gibela since 2017, was dismissed in 2021 after being charged with two counts of misconduct stemming from a single incident on 25 May 2021. The charges were unauthorised use of a company vehicle and providing false or misleading information about the timing of a hijacking incident.
Dube had been given permission to use the company vehicle to attend training near Nigel but had not sought authorisation to take it home to Soshanguve. Upon arriving at his residence, he was confronted by two armed men at his front gate who forced him from the vehicle at gunpoint, stealing both the car and his cell phone. The vehicle, which had a tracking device, was recovered the following day.
The crux of the dispute centred on conflicting accounts of when the hijacking occurred. Various documents recorded different times: a security incident report stated 18:00, Dube’s police statement recorded 20:43, while his subsequent company reports indicated times between 19:15 and 19:40.
Judge Lagrange noted the implausibility of some recorded times, particularly the 18:00 claim in the security report, which would have required Dube to travel the considerable distance from Nigel to Soshanguve in just one hour during peak traffic. The court also highlighted inconsistencies in the police statement, noting that if the hijacking occurred at 20:43 as recorded, Dube could not have walked to the police station, waited to be served, and completed his statement by 21:00 as stamped by the officer.
The original arbitrator found Dube’s dismissal substantively unfair, ruling that he was not guilty of providing false information and that the unauthorised vehicle use warranted only a final written warning under the company’s disciplinary code. However, the arbitrator declined to impose the warning, citing concerns about retrospective punishment following an unfair dismissal.
Gibela challenged the arbitration award, arguing that the arbitrator misinterpreted their disciplinary procedures. The company contended that unauthorised vehicle use fell under “dishonest misconduct” warranting dismissal, not merely a final written warning. They also argued that as a supervisor, Dube’s actions had irreparably damaged the trust relationship essential to his role.
However, the court noted significant weaknesses in Gibela’s case. The company presented minimal evidence regarding the appropriateness of dismissal, and crucially, Dube’s own line manager testified that he regarded Dube as “one of the good workers” with no performance issues. Judge Lagrange acknowledged that the arbitrator had indeed erred in interpreting the disciplinary code, which did recommend dismissal for unauthorised vehicle use. However, applying established legal precedent, the court examined whether this error was material enough to justify overturning the award.
The judge found insufficient evidence that Dube’s misconduct had irreparably damaged the employment relationship. Key factors included Dube’s clean disciplinary record, his immediate admission of guilt regarding the unauthorised vehicle use, and his explanation that fatigue after a long day led to his decision to drive directly home rather than return the vehicle to the depot first.
Regarding the false information charge, the court found the arbitrator’s conclusion reasonable despite some analytical shortcomings. The judge noted that the various time discrepancies could be explained by Dube’s traumatised state following the hijacking, his lack of a watch or phone to check the time, and the inherent difficulties in providing precise timing under such circumstances.
The court criticised Gibela for attempting to introduce new grounds of review only in their legal arguments, rather than in their founding papers. Judge Lagrange emphasised the well-established principle that review grounds must be properly pleaded from the outset and cannot be added during argument. While upholding Dube’s reinstatement, the court amended the arbitration award to include a mandatory final written warning for unauthorised vehicle use, valid for twelve months. Judge Lagrange ruled that the arbitrator’s reasoning for not imposing this warning was flawed and could not be justified.
Both parties were ordered to pay their own legal costs, with no punitive cost orders made against either side. My favourite type of costs order.
You can read the full Gibela v NUMSA obo Dube judgement here.
Written by Theo Tembo
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