- A prison warder was dismissed after allegedly refusing a prison search and being found with dagga and unauthorised cellphones.
- The arbitration became dominated by disputes over peripheral details instead of the core misconduct charges.
- The Labour Court ordered the dismissal dispute to be heard again before a different commissioner
A prison warder’s dismissal over alleged dagga and cellphone smuggling became mired in debates about who authorised a prison search, where it happened and how the drugs were wrapped, rather than focusing on the key misconduct allegations.
The dispute started during a routine security operation at a correctional centre on 17 June 2020. The Department of Correctional Services claimed that the warder refused to submit to a lawful search, leading officials to forcibly search him and recover four packets of compressed dagga and two unauthorised cellphones. A further nine cellphones were later found in his vehicle.
The warder denied having dagga and insisted the cellphones linked to the misconduct charges were recovered from his vehicle and not from his person. He explained his reluctance to be searched by saying he was concerned about COVID-19 and that the search took place in an office instead of designated cubicles.
The misconduct case lost its way
The warder faced three disciplinary charges for breaching prison security by bringing prohibited items into the correctional centre, refusing to obey a lawful instruction to be searched and violating the department’s code of conduct.
At arbitration, six departmental witnesses testified about the search. But the hearing began to centre on conflicting accounts of who authorised it, whether it took place in a cubicle or an office, the colour of the cellphones and whether the dagga was wrapped in brown Sellotape or a brown envelope.
The commissioner found the dismissal substantively and procedurally unfair, criticised the department for not producing photographs of the confiscated items or a recording of the incident, and ordered the warder’s reinstatement without retrospective backpay.
The real issues were never decided
When reviewing the award, Judge M Makhura found that the commissioner had not properly focused on the key issues, allowing side disputes to overshadow the main enquiry.
The judge noted that the central and largely uncontested facts were whether the warder refused to be searched and whether prohibited items were found in his possession. Instead, the commissioner shifted attention to the nine cellphones found in the employee’s vehicle, rather than making clear findings about the dagga and two cellphones allegedly found on his person.
Judge Makhura also rejected the commissioner’s criticism over missing photographs and video recordings, stating that those omissions carried little evidential weight in this case.
Fresh hearing ordered
The Labour Court found the arbitration award ambiguous and inconsistent because it never clearly determined whether the warder was guilty of possessing dagga, which cellphones formed part of the charges or why reinstatement without backpay was justified.
The award was reviewed and set aside, and the dismissal dispute was sent back to the bargaining council for a new arbitration before a different commissioner. There was no order as to costs.
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