CAAB fired employee procedurally � court

Staff Writer | Friday January 13, 2017 15:45

 

The applicant, Levy Holonga, was employed by CAAB as an airport operations officer at the Francistown International Airport.

The first respondent in the matter is the CAAB while the second respondent is Masole, who is the director of operations at CAAB.

Masole’s decision to terminate Holonga’s employment is contained in a letter dated September 14, 2014.

Passing judgement, Justice Zibani Makhwade said Order 16 (1) deals with process or procedure in which review applications are brought before court...

“No issue arises however, on the correct process or procedure in bringing the current application to this court…Although the applicant has raised certain technical points relating to certain documents filed by the respondents, these were no longer live issues by the time this application was heard on August 22, 2016 and the case proceeded to the merits of the review application itself,” said Makhwade.

Prior to the termination of his employment on September 15, 2014, Holonga had on July 28, 2014, received a letter of notification of a formal disciplinary hearing dated July 23, 2014 charging him with the offence of “unauthorised absence from work during working hours or extended working period” in accordance with section 57.1.1 of the CAAB conditions of work, said Makhwade.

On August 7, 2014, Makhwade pointed out, the applicant was dismissed from work following a disciplinary hearing after he was found guilty of the charges.

“Upon this conviction being entered and the chairman of the disciplinary hearing announcing that the offence was minor in terms of CAAB conditions of employment, the applicant was given an opportunity to mitigate which he did. According to paragraph 22 of the applicant’s founding affidavit, he was surprised when instead of the chairman of the disciplinary enquiry imposing an appropriate penalty as empowered to do so, the chairman shockingly said he was only an investigator and therefore his role was only restricted to whether an offence was committed as alleged,” Makhwade stated. Following that process, Makhwade said, the chairman referred the matter to his superior, Masole, who authored the letter (which is a subject of this review application) dated September 15, 2014 dismissing the applicant.

Said Makhwade: “…As a matter of law, reviews under Order 61 are not concerned with whether the decision complained of was right or wrong but with the decision making process itself. The main concern in this application is whether the manner in which the decision reached was proper or not. The onus rests with the applicant to show whether the decision complained of was so unfair, unreasonable and irrational that no reasonable person would come to it…”

Makhwade said the applicant’s complaint in this regard is that CAAB failed to take disciplinary action promptly as contemplated by Section 58 of CAAB conditions of employment as well as Section 26 (1) of the Employment Act in that the charges and particulars of offence which led to the dismissal emanated from September 12, 2013, which according to the applicant, was the date upon which CAAB became aware of the purported misconduct.

“It is contended by the applicant that CAAB failed to act within three months which was the most reasonable time under the circumstances. The failure to act within the stipulated time, the applicant says, barred CAAB from conducting the disciplinary hearing in respect of the offences allegedly committed,” said Makhwade.

In the letter dated September 12, 2013, referred to by the applicant and headed “Request for recommendations from medical practitioners”, it was brought to the attention of the applicant that he ought to submit by September 18, 2013, the recommendations of his alleged eye problems and the need to go for regular injections in the afternoon of each working day, said Makhwade.

“There is however, no evidence from the applicant’s papers as to whether he complied with the deadline of September 18, 2013 imposed by the principal airport operations officer…Even apart from this failure to meet the deadline by the applicant, the fact that he continued to do the same alleged offence as apparent from among others paragraph 22 of Masole’s opposing affidavit, would have rendered it cumbersome for CAAB to conduct a series of disciplinary hearings for the applicant’s continuing infractions…” said Makhwade. As to whether the disciplinary charges with which the applicant was convicted of were dismissible offences, Makhwade stated, that it is common cause that prior to his dismissal, the applicant was already the subject of at least two final warnings as per the letter May 2, 2012, which warning was effective for a year…

“…The result is that there is no merit in the applicant’s notice of motion that Masole’s decision contained in a letter dated September 15, 2014 terminating the applicant’s employment be declared a legal nullity. His application is hereby reviewed and set aside. The applicant shall pay the cost of the application,” Makhwade concluded.

Attorney Otto Itumeleng represented the applicant while counsel David Olatotse represented CAAB.