Durban - A Durban Labour Court acting judge has found an order, which directed that a fired eThekwini Municipality housing official be reinstated after he shot at a municipal car, was an “irrational decision” based on speculation.
Acting Judge Raven Harkoo set aside the reinstatement of housing department clerk Sthembiso Nhlapo and an award of R108 000 in arrears salary in a recent judgment.
He ordered that the unfair dismissal dispute be sent to another arbitrator to decide.
Nhlapo was fired on December 6, 2010 for personal use of his municipal vehicle and was ordered to return the car to a city depot and hand in the keys.
But Nhlapo drove the vehicle to Embo, near the Valley of a Thousand Hills, and shot at it seven times with his gun.
After an appeal against his dismissal, Nhlapo was reinstated in February 2011 but was charged with misconduct for damaging the council car and fired in July that year.
Nhlapo filed an unfair dismissal dispute and in 2012 an arbitrator ruled in his favour, ordering his reinstatement and that he be paid his arrear salary.
In his testimony before the arbitration hearing, Nhlapo said he had been “shocked” by his dismissal and “could not believe what was happening” to him.
He contemplated suicide and drove around looking for a quiet place and drank alcohol.
He said he regretted his actions and had gone for counselling after the incident.
Another municipal employee, Xolani Mbali, testified that he tracked the damaged vehicle to Embo forest and found Nhlapo, who was carrying a gun and drinking alcohol.
He said he took the gun away from Nhlapo and drove the damaged car back to a municipal depot in Jacobs. The arbitrator found that Nhlapo's dismissal had been “unfair”.
She said Nhlapo had not been in the “correct frame of mind” when he had shot at the car as he had suffered “shock and anxiety” after being dismissed.
She said it had been inappropriate to dismiss him as he had 19 years of service, with an unblemished record except for the incident with the car.
But Judge Harkoo disagreed with these findings and said the arbitrator’s decision had not been supported by evidence.
He said Nhlapo’s actions had been “careless, reckless and dangerous”.
There was no evidence to prove he had been so drunk at the time of the shooting that he was not aware of what he was doing, and the arbitrator's finding was “pure speculation”.
He also disagreed with the arbitrator’s finding that Nhlapo’s dismissal in July 2011 had been “hasty”. He said there needed to be a “full and proper inquiry” into Nhlapo’s conduct.