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[2016] ZALAC 3
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Metrorail (PRASA) V SATAWU obo Ndlovu and Others (JA124/2013) [2016] ZALAC 3 (3 February 2016)

INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case
no: JA124/2013
DATE:
03 FEBRUARY 2016
Not
reportable
In the matter between:
METRORAIL
(PRASA)
...........................................................................................................
Appellant
And
SATAWU
obo
NDLOVU
..............................................................................................
First
Respondent
M
S
RAFFEE
............................................................................................................
Second
Respondent
COMMISION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
.................................................................................................
Third
Respondent
Heard:
26 March 2015
Delivered:
03 February 2016
Summary: Review of arbitration award – employee dismissed
for misconduct for passing signal while driving a train without
authority- arbitrator drawing inference that train derailed not
because of malfunctioning but due to employee’s failure to

adhere to rules. Arbitrator’s award falling within the ban of
reasonableness – Labour Court’s judgment set aside
–
appeal upheld.
Coram:
Ndlovu JA, Landman JA, and Mngqibisa-Thusi AJ
JUDGMENT
MNGQIBISA-THUSI AJA
[1]
This is an appeal against the whole
judgment and order of the Labour Court (Masipa AJ) handed down on 15
August 2013, reviewing
and setting aside the award of Mr M S Raffee
(the arbitrator), acting under the auspices of the Commission for
Conciliation, Mediation
and Arbitration (the third respondent). Leave
to appeal was granted by this Court on petition.
[2]
Metrorail (“the appellant”) is
a State owned entity responsible for the transport of passengers by
rail in the country.
Mr George Ndlovu (the first respondent),
represented by the South African Transport and Allied Workers Union
(SATAWU) was employed
by Metrorail as a train driver from June 2000
until his dismissal on 12 August 2011.
[3]
It is common cause that on 18 July 2011,
the first respondent drove a train through a red signal at the
appellant’s Randfontein
yard and, as a result, the train
derailed. The following charges were preferred against the first
respondent:
‘
3.1
Misconduct/
passed signal point at danger without authority
In that you in your capacity as
train driver at Randfontein on the 18
th
July 2011, at
approximately 04h48 at Randfontein yard you passed signal RFR 58 at
danger, with train 0978 R9 without Authority.
3.2
Misconduct/Derailment
In that you in your capacity as
train driver at Randfontein on the 18
th
July 2011, at
approximately 04h48 at Randfontein yard you passed signal RFR 58 at
danger, with train 0978 R9 without Authority,
as a result motor coach
13418 derailed with four (4) wheels the whole front bogie.
3.3
Misconduct/Train delays/Cancellation
In that you in your capacity as
train driver at Randfontein on the 18
th
July 2011, at
approximately 04h48 at Randfontein yard you passed signal RFR 58 at
danger, with train 0978 R9 without Authority,
as a result trains
delayed and cancelled as per the A STATS.
3.4
Misconduct/damage
to property
In that you in your capacity as
train driver at Randfontein on the 18
th
July 2011, at
approximately 04h48 at Randfontein yard you passed signal RFR 58 at
danger, with train 0978 R9 without Authority,
as a result motor coach
13418 was damaged.
3.5
Misconduct/Endangering lives
In that you in your capacity as
train driver at Randfontein on the 18
th
July 2011, at
approximately 04h48 at Randfontein yard you passed signal RFR 58 at
danger, with train 0978 R9 without Authority,
as a result, you
transgressed the train working rule number 4.’
[4]
At the disciplinary hearing, the first
respondent was found guilty as charged and was dismissed. The first
respondent’s appeal
through the internal appeal process was
also dismissed.
[5]
First respondent referred an unfair
dismissal dispute to the third respondent. The first respondent
alleged that his dismissal was
procedurally and substantively unfair.
[6]
At the arbitration hearing it was common
cause that:
6.1      the train derailed as a result of
the failure by the first respondent to stop the train as directed
by
the signal;
6.2      the first respondent had applied
the brakes. Mr KJ Mosia (“Mosia”), a technical supervisor

in the appellant’s Rolling Stock division, testified that after
the derailment and when he inspected the train, he found
the brake
handle on the “on” position; and
6.3      the first respondent was still on a
final written warning for a derailment that he caused six
months
earlier.
[7]
At the start of the arbitration hearing,
the first respondent’s representative alluded to the fact that
there was a “plea
bargain” between the parties in terms
of which, in the event of the first respondent being found guilty, he
would not be
dismissed but demoted to the position of “a
driver”. However, since the first respondent did not present
any proof
of the plea bargain, the existence of which was denied by
the appellant, the arbitrator found the first respondent’s
dismissal
to be procedurally fair.
[8]
The only issue to be determined at the
arbitration hearing was whether the train derailed because of faulty
brakes or because of
the first respondent’s negligence.
[9]
It was the appellant’s contention
that the derailment was because of negligence of the first
respondent. Mr Tebogo More (“More”),
an assistant manager
(train operations) testified that after the train derailed, he had
driven the train back to the place where
the first respondent started
and again back to the signal the first respondent passed and did not
experience any problems with
the braking system. Further, it was
More’s uncontested evidence that, before departing, it is the
duty of the train drivers
to check if there are any obvious
faults/defects on the train, prepare a what is known as a “train
set” which entails
checking the vacuum pipes, the brake blocks
and the pistons. The train driver is also obliged to test the
effectiveness of the
braking system by moving the train slowly out of
the yard. If any fault/defect is discovered, the train driver must
complete a
form (T403 form) and report such fault/defect to the train
control officer (“TCO”). According to More, the first
respondent
did not complete the form, indicative of the fact that
there were no faults discovered on the train.
[10] Mosia testified
that when he together with another person from Rolling Stock manually
inspected the train they found nothing
wrong with the brakes although
they also found the brake handle on. Mosia further testified that
they could not retrieve any information
from the black boxes
[1]
installed in the train since they were crashed when the train
derailed. The first respondent’s evidence was that after
departing
from the yard and as he drove closer to the signal, he
noticed that the signal was red. He tried to stop the train but the
brakes
failed. He further testified that he was unable to test the
effectiveness of the train’s braking system, as the yard was
too short a distance. This piece of evidence was never led at the
disciplinary hearing.
[11] The arbitrator,
relying on the evidence of More and Mosia, in particular, the
evidence that there was nothing wrong with the
brakes after the
derailment, came to the conclusion that the appellant’s version
was more probable that the braking system
was not defective. The
arbitrator found that the derailment was because of the first
respondent’s negligence. In view of
the first respondent’s
existing final written warning for the same offence, the arbitrator
found the first respondent’s
dismissal to be substantively
fair.
[12] The first respondent
sought the review and setting aside of the arbitration award on the
grounds that the arbitrator misconducted
himself or committed a gross
irregularity.
a.
On 12 July 2013, the court
a
quo
concluded that the arbitrator’s
decision was one a reasonable decision-maker could not reach. In this
regard, the court
a quo
stated that:
‘
[30]
… It is clear that from the evidence presented before the
Second Respondent, he failed to have regard to the evidence
before
him and thus committed a reviewable defect.  He ignored material
evidence placed before him which was that the Applicant’s

evidence was that he had applied the brakes, the brake handle was on
as conceded to by both witnesses of the Second Respondent
and that
this meant that the Applicant had applied the brakes.
[31] More could not say whether
the brakes failed and Mosia’s evidence that brakes did fail.
It became common cause
that the Applicant had in fact applied the
brakes.  The technical evidence which the Second Respondent
relied on and which
he said was not challenged could not explain why
the brake was on if the applicant had not applied the brakes.
The Second
Respondent had narrowed the issue before him to be whether
the Applicant had applied the brakes.  This being the case, once

Norton conceded that this was the case, she inadvertently accepted
that the Second Respondent failed to apply his mind to the issues
in
the case and as a result, his award was not that of a reasonable
decision-maker.’
[13] The court
a quo
reviewed and set aside the arbitration award and ordered the
reinstatement of the first respondent without any loss of benefits,

and costs.
[14] The appellant’s main grounds of appeal is that the court
a
quo
erred in concluding that the issue to be determined was
whether the first respondent had applied the brakes and also
misdirected
itself in concluding that the appellant did not adduce
any evidence that the first respondent applied the brakes too late.
[15]
In
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others,
[2]
the Constitutional Court held that:
‘
[110]
To summarise,
Carephone
held that s 145 of the LRA was suffused by the then constitutional
standard that the outcome of an administrative decision should
be
justifiable in relation to the reasons given for it.  The better
approach is that s 145 is now suffused by the constitutional
standard
of reasonableness.  That standard is the one explained in
Bato
Star
.
Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach?  Applying it will
give effect
not only to the constitutional right to a fair labour practices, but
also to the right to administrative action which
is lawful,
reasonable and procedurally fair.’
[16] It is the appellant’s
contention that the issue for determination by the arbitrator was
whether the train derailed because
the brakes had failed. As
correctly pointed out by counsel for the appellant, it was common
cause at the arbitration hearing that
the first respondent had
applied the brakes. In light of it being accepted that the first
respondent had applied the brakes, the
question is whether the train
derailed because the brakes did not function effectively or because
of the negligence of the first
respondent.
[17] At the arbitration
hearing, the appellant’s version was that when the first
respondent departed from the yard, the train’s
braking system
was not faulty/defective because the first respondent had not
reported any fault/defect. Further, it is the appellant’s

contention that after the derailment, the train’s braking
system was tested by both More and Mosia and it was found to be

working. The arbitrator, having considered the probabilities
concluded on the evidence of More and Mosia that it could be inferred

that the train did not derail because the brakes failed.
[18] On the other hand,
the first respondent’s version was that despite applying the
brakes the train did not stop because
the brakes were faulty.
[19] The arbitrator
was faced with two diametrically different versions. In
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others,
[3]
the court stated that:
‘
[5]
…  The technique generally employed by the courts in
resolving factual disputes of this nature may conveniently
be
summarised as follows.  To come to a conclusion on the disputed
issues a court must make findings on (a) the credibility
of various
factual witnesses; (b) their reliability and (c) the probabilities.
As to (a), the court’s finding on the
credibility of a
particular witness will depend on its impression about the veracity
of the witness.  That in turn will depend
on a variety of
subsidiary factors, not necessarily in order of importance, such as
(i) the witness’s candour and demeanour
in the witness-box,
(ii) his bias, latent and blatant, (iii) internal contradictions in
his evidence, (iv) external contradictions
with what was pleaded or
put on his behalf, or with established fact with his own extra curial
statements or actions, (v) the probability
or improbability of
particular aspects of his version, (vi) the calibre and cogency of
his performance compared to that of other
witnesses testifying about
the same incident or events.  As to (b), a witness’s
reliability will depend, apart from
the factors mentioned under (a)
(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in
question and (ii) the quality,
integrity and independence of his recall thereof.  As to (c),
this necessitates an analysis
and evaluation of the probability or
the improbability of each party’s version on each of the
disputed issues.  In the
light of its assessment of (a), (b) and
(c) the court will then, as a final step, determine whether the party
burdened with the
onus of proof has succeeded in discharging it.
The hard case, which will doubtless be the rare one, occurs when a
court’s
credibility findings compel it in one direction and its
evaluation of the general probabilities in another.  The more
convincing
the former, the less convincing the latter.  But when
all factors are equipoised probabilities prevail.
[4]
’
[20] The arbitrator,
having considered the probabilities of the parties’ versions
concluded that based on the evidence of
More and Mosia, it can be
inferred that the train derailed not because the brakes were not
functioning.
[21] At the arbitration
hearing, evidence was led that after the train was re-railed, More
had driven the train back to the yard
and after the inspection and
measurements done by Mosia back to where the relevant signal was. In
light of the manual checks done
by Mosia which revealed that there
was nothing wrong with the braking system, and in view of the fact
that the first respondent
did not report any defects, the logical
inference to be drawn is that the brakes were in working order when
the first respondent
left the yard and did not engage the brakes
timeously. The first respondent’s version that the brakes
failed is highly improbable
if one takes into account that More drove
the train without any problems after it derailed and that Mosia’s
inspection found
the brakes in working order.
[22] Mosia also testified
to the fact that because of the derailment, the three black boxes
were crashed and the data therein could
not be retrieved. Failure to
produce the data from the computer boxes, which was the most reliable
real evidence as to what led
to the derailment is not fatal. In the
absence of the real evidence in the form of the data from the black
boxes, the appellant
produced the best available evidence in the form
of the evidence of More and the inspection of Mosia. In the absence
of any report
of defects in the braking system, a probable inference
to be drawn is that the train derailed, not because the brakes were
defective
as alleged by the first respondent, but as a result of the
negligence of the first respondent.
[23] I am therefore of the view that the inference drawn and the
probabilities considered by the arbitrator, the arbitrator’s

decision that the first respondent’s dismissal was not
substantively unfair is one a reasonable decision-maker would have

reached on the available information.
[24]
Normally costs follow the cause. However, in the present instance, I
am of the view that, in terms of the requirements of law
and
fairness,
[5]
there should be no order as to costs of the appeal. .
[25] Accordingly, the following order is made:
1.
The appeal is upheld with no order as to
costs.
2.
The order of the Court
a
quo
is set aside and replaced with the
following order:
“
(1)
The review application is dismissed.
(2)
No order as to costs.”
Mngqibisa-Thusi
AJA
Ndlovu
et Landman JJA concur in the judgment of Mngqibisa-Thusi AJA
APPEARANCES:
FOR THE APPELLANT: Adv  J G Rautenbach, SC
Instructed
by Mkhabela Huntley Adekeye Inc
FOR
THE FIRST RESPONDENT: Adv J S Mphahlani
Instructed
by Baloyi Attorneys
[1]
Black boxes are computers found in trains for the
capturing of data relating to the times and movement of trains.
[2]
2008 (2) SA 24 (CC); [2007] 12 BLLR 1097 (CC).
[3]
2003 (1) SA 11 (SCA).
[4]
At para 5.
See
also
Govan v
Skidmore
1952 (1)
SA 732
(N) where
the
court stated at 734 C-D that: “… in finding facts and
making inferences,  in a civil case, it seems to me
that one
may, as Wigmore conveys in his work on
Evidence
(3rd ed., para.
32), by balancing probabilities select a conclusion which seems to
be the more natural, or plausible, conclusion
from amongst several
conceivable ones, even though that conclusion be not the only
reasonable one.”.
[5]
Section 179(1)
of the
Labour Relations Act 66 of
1995
.