Employee's dismissal upheld after refusal to work additional hour

A man who was dismissed after refusing to work an extra hour has lost his appeal at the Labour Court.

Lymon Sibusio Vilakazi started with Avragystix as a sales agent in June 2022, first entering a one-month training contract before signing a permanent contract with a three-month probation period in July.

His issues with company policies began in August when he declined a request to extend his workday by one hour, even though he could leave an hour earlier the next day.

Shortly after, Vilakazi faced accusations of gross negligence after using an incorrect dispositioning of hot leads which resulted in an escalation from the client.

Following the incident, he was served with a notice of suspension and a notice to attend a disciplinary inquiry where he faced dual allegations of gross insubordination and negligence

Dissatisfied with the outcome, Vilakazi sent an email to the company's Human Resources Manager, Neo Makhene, raising concerns about premeditation, bias, and presumptuousness regarding his suspension.

He requested Makhene to respond to certain questions which he had posed to her in his email. The next day, he sent another email advising that her failure to respond was hindering his ability to prepare.

Makhene replied his email responding to the questions and advised that details of the charges would be provided in the hearing. She also indicated that he could be given access to his work ‘machine’, should he need access for purposes of preparation.

Unhappy with the reply, he referred an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) claiming that he had been unfairly suspended and wanted an upliftment on his suspension.

The CCMA notified the parties that the matter had been set down for September 2022. Meanwhile, Vilakazi's employer held disciplinary inquiry as scheduled and he failed to attend.

When contacted to enquire about his non-attendance, Vilakazi informed both the chairperson and Makhene that he would not be attending the inquiry. His reason was that the CCMA proceedings needed to be concluded before the disciplinary inquiry could move forward.

As a result, the hearing proceeded in his absence and the outcome of the inquiry was delivered a couple of days later and he was found guilty of both charges and was subsequently dismissed. He was informed about the outcome on September 1, 2022.

The CCMA then moved the dispute for arbitration to October 2022 after conciliation had failed.

After the first day of arbitration, Vilakazi applied for the recusal of the commissioner appointed to arbitrate the matter. He alleged that the commissioner was biased and listed a number of reasons in support of his contention of bias.

The commissioner considered the application and found that no sound basis had been laid to show apprehension of bias, nonetheless, he recused himself.

The arbitration started afresh before a new commissioner, Khulekani Xamesi and it was concluded in December 2022.

During closing arguments, Vilakazi lodged yet another recusal application alleging that Xamesi “arrogantly” allowed a company witness to stay in in the room while he was testifying.

Vilakazi was of the view that allowing the witness to be in the room was “messing with the whole process” and accused Xamesi of acting on behalf of the company.

He further accused Xamesi of being aggressive towards him; he treated him like a commoner ranking below him; and he had lost all respect for Xamesi and could not rely on his judgement.

Despite arguments raised by Vilakazi, Xamesi didn't recuse himself and ruled against him.

Vilakazi took Xamesi's decision on review at the Labour Court in Johannesburg where the matter was heard by acting Judge L Erasmus who noted that the first commissioner had to recuse himself because Vilakazi was unhappy with him. The second commissioner was also subjected to a recusal application from Vilakazi.

Judge Erasmus said it was clear Vilakazi was not going to accept any commissioner that made any findings against him and that all commissioners that ruled against him ran the very real risk of facing recusal applications.

As a result, the suspension's duration was not excessive and therefore cannot be the basis for a claim of unfair suspension.

''The commissioner’s award is reasonable in relation to the evidence that served before him and the reasons given," said judge Erasmus.

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