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[2018] ZALCCT 24
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National Union of Mineworkers and Others v Eskom Holdings Soc Ltd (Generation, Koeberg Operating Unit) (C636/2014) [2018] ZALCCT 24 (25 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
/ not reportable
Case
no: C636/2014
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
First
Applicant
NGOAKO
MASHAO
Second
Applicant
SIYABONGA
LINOSE
Third
Applicant
BHEKITHEMBA
NHLEKO
Fourth
Applicant
and
ESKOM HOLDINGS SOC
LTD (GENERATION, KOEBERG
OPERATING UNIT)
Respondent
Heard:
25 August 2017
Delivered:
25 July 2018
Summary:
Contractual
claim for breach of contract of employment and damages arising from
suspension from training programme (not employment)
– special
plea of issue estoppel arising from prior CCMA arbitration upheld in
part – breach of contract not established
– claim
dismissed
JUDGMENT
MYBURGH,
AJ
Introduction
[1]
This is a
contractual claim in terms of section 77(3) of the BCEA. The
applicants
[1]
were recruited by
Eskom to be trained as nuclear reactor operators (ROs) at Koeberg.
[2]
They essentially claim that Eskom breached their contracts of
employment by removing them from the training programme, and seek
damages of some R1.7-million each as a consequence. Each of the
applicants remain employed by Eskom in different capacities.
[2]
An unusual
– and taxing – feature of this litigation is that it was
preceded by an unfair labour practice claim (relating
to training) in
terms of section 186(2)(a) of the LRA in the CCMA. Following a
marathon 14-day arbitration, the commissioner found
that Eskom’s
decision to remove the applicants from the training programme was
based on fair reasons, but that it was procedurally
unfair, and thus
awarded each of them six months’ salary as compensation. Not
content with this outcome, the applicants have
re-engineered their
claim into a contractual one. Unsurprisingly, Eskom has raised a
special plea of issue estoppel.
[3]
By
agreement between the parties, the entire arbitration record –
running to 3000 odd pages – was entered as evidence
before this
court, and was supplemented by half a day of live oral evidence.
Inevitably, the magnitude of the record has contributed
to the delay
in handing down this judgment.
[4]
The
structure of this judgment is as follows: the broad factual matrix is
outlined; the issues for determination by this court are
defined; the
commissioner’s award is analysed; Eskom’s special plea of
issue estoppel is then dealt with; and this
is followed by a
consideration of each of the alleged breaches of contract relied on
by the applicants.
The broad factual
matrix
[5]
Koeberg
needs little introduction. Owned by Eskom, it is the only nuclear
power station in Africa. As a nuclear facility, it is
regulated
locally by the National Nuclear Regulator (NNR) and internationally
by both the World Association of Nuclear Operations
(WANO) and the
Institute of Nuclear Power Operations (INPO). This involves an
exceptionally high level of regulation, which is
aimed at the
assurance of nuclear safety due to the extremely high risks involved,
as evidenced by the Chernobyl and Three Mile
Island disasters.
[6]
The three
applicants aspired to be ROs manning the control room at Koeberg (the
epicentre of a nuclear power station), a job rightly
described in
evidence as one of the most dangerous in the world, where there is
simply no room for error. Given the peculiar nature
of the job, ROs
are required to have an array of cognitive skills and personality and
emotional traits, which are tested by way
of psychometric
assessments, at the time of recruitment and thereafter. Just how
dangerous and unique this job is, is demonstrated
by the fact that
the NNR prescribes the appointment of a certified station
psychologist at Koeberg, whose primary function is to
keep ROs (and
SROs
[3]
) under continuous
psychological surveillance. If a deficiency is detected, they are
often suspended, pending what is known as remediation.
[7]
There are
potentially three routes to becoming an RO: (i) the nuclear cadet
programme (aimed at school leavers
[4]
);
(ii) the non-licensed operator programme (where nuclear plant
operators (NPOs) progress through the ranks to become ROs); and
(iii)
the direct reactor operator (DRO) programme (a pilot project aimed at
attracting persons with tertiary qualifications who
are placed on
accelerated training). Although the training programme for NPOs and
DROs is the same, the DROs spend less time performing
work on the
plant, which results in accelerated training.
[8]
The DRO
programme commenced in 2005, with the first intake being referred to
as ILT
[5]
7/8. The applicants
were part of the second intake of DROs, which was known as ILT 10/12,
and commenced employment as trainee ROs
in July 2007. Both DROs and
NPOs were engaged on ILT 10/12. Initially there were 22 learners,
which reduced to 18 before the events
material to this matter.
[9]
In March
2007, before being selected for employment, the applicants were
subjected to psychometric assessments, which were conducted
by an
external firm of industrial psychologists called Psymetric.
[6]
Each of the applicants were “
recommended
with reservation
”
by Psymetric. What this meant is that certain psychometric risks or
negative indicators had been identified, but that these
were not
considered so severe as to exclude employment as a trainee RO.
[10]
In terms of
the applicants’ contracts of employment:
a)
the
training programme comprised of four phases and shift work to
facilitate training, with the four phases being: phase 1 –
entry level operator training; phase 2 – generic fundamentals
course, and systems instrumentation course (SIC); phase 3 –
initial licence training (ILT); and phase 4 – NNR examination;
b)
the
training programme was to commence on a date to be set by Mr Engel
(Koeberg’s plant manager) “
and
end upon completion of the programme but not exceeding a period of 48
months
”;
c)
if the
applicants failed to complete the training programme, they would be
liable for a
pro-rata
portion of the training costs, unless a mutually acceptable reason
existed for non-completion or Eskom elected to waive the obligation;
d)
on
successful completion of the training programme, the applicants were
required to work as ROs for a minimum period of five years,
with a
breach also being subject to a penalty clause; and
e)
all of
Eskom’s policies and procedures (including safety regulations)
are incorporated into the contract.
[11]
During the
course of evidence, a plethora of policies and procedures were
referred to, which are relevant to this matter. Prime
amongst them
were the NNR licensing guide,
[7]
the Koeberg license document,
[8]
and administrative procedure KAA-591.
[9]
[12]
ILT 10/12
was run in parallel with ILT 7/8 and the previous intake, known as
ILT 6,
[10]
with the learners
being at different phases of their training. An issue in relation to
each of these prior intakes is of particular
relevance to this
matter.
[13]
In August
2007, a decision was taken to remove an ILT 6 learner from the
training programme due to psychological factors. In the
process, it
was identified that while he had undergone a psychometric assessment
by Psymetric before being appointed in 2005 and
had been recommended
(albeit with psychometric reservations) for appointment, he had not
been tested for the “
primary
disqualifying conditions
”
set in the NNR licensing guide.
[11]
(These are: (i) alcoholism and alcohol abuse; (ii) drug abuse; (iii)
psychopaths; (iv) schizophrenics; (v) pronounced affect
distortion; (vi) criminal offences; and (vii) “
any
other condition considered by the psychologist or the council to be
potentially or actually detrimental to the promotion and
maintenance
of nuclear safety standards of licensed operators
”.)
Why this had not occurred is because these are clinical criteria,
with no clinical tests having been included in the battery
of
psychometric tests undertaken by Psymetric in 2005. This in
circumstances where Psymetric are industrial and not clinical
psychologists.
[14]
As a result
of this, a new improved battery of psychometric tests were developed
and introduced in 2008 by the then station psychologist,
Ms Nkosi.
They were subsequently approved by the NNR. I refer to them as “the
new battery of tests”.
[15]
In July
2009, a considerable problem arose in relation to ILT 7/8, which (to
repeat) comprised the first group of DROs. All but
one of the RO
learners – a number of whom had also been recommended with
psychometric reservations by Psymetric – failed
their licensing
examination. (A process of remedial training was thereupon
undertaken, and they retook the examination successfully
a few months
later.) Management’s investigation report records the root
causes of this as including the “
inappropriate
selection of a relatively large group of learners with psychometric
reservations onto an accelerated and pilot (DRO)
training programme
”.
[16]
After the
ILT 7/8 experience, management appears to have taken the decision
that it was no longer going to allow candidates with
strong
psychometric reservations onto the training programme.
[17]
On 1 July
2010, Dr Theron took up the position of station psychologist at
Koeberg, taking over from Dr Jungschläger (a private
practitioner who had been contracted to perform the role following
the resignation of Ms Nkosi in mid-2008). For about six months,
Dr
Theron was trained by Dr Jungschläger, with the NNR having
formally accredited Dr Theron in January 2011. The overall role
of
the station psychologist is to give an assurance to the NNR that the
public is safe – this from the perspective of the
psychological
well-being of Koeberg employees.
[18]
In November
2010, Dr Jungschläger assessed seven NPO candidates on ILT 10/12
using the new battery of tests, two of whom were
not recommended. The
assessment appears to have been undertaken in preparation for
learners commencing with phase 3 (ILT) of their
training. This
involves simulator training in a replica of the Koeberg control room,
and is really the business end of the training
programme.
[19]
In the
first quarter of 2011, Dr Theron raised with Mr Aploon (Koeberg’s
operations manager) her concerns about the psychometric
assessments
of the 13 DROs on ILT 10/12, who were about to start phase 3 of their
training. Her concerns were informed by the following.
Firstly, their
2007 psychometric assessments by Psymetric suffered from the same
limitation as identified in relation to ILT 6,
i.e. they had not been
tested for primary disqualifying conditions. Secondly, their
appointment suffered from the same limitation
as identified in
relation to ILT 7/8, i.e. they were appointed despite being
recommended with reservation by Psymetric. Thirdly,
their
psychometric assessments were now four years old, with it being
generally accepted in the profession that such assessments
are only
valid for 12 months. Fourthly, given that the NPO learners on ILT
10/12 had been tested using the new battery of tests,
it would have
been inconsistent for the DRO learners not to be tested on the same
basis. Later on in her evidence, Dr Theron also
made mention of the
fact that the 2007 assessments conducted by Psymetric were deficient
in that only one instrument was used to
evaluate temperament /
personality, whereas the best practice was to use multiple
tests.
[20]
On the
advice of Dr Theron, Mr Aploon decided that the RDOs should undergo
psychometric assessments using the new battery
of tests before the
start of phase 3 of their training.
[21]
In May
2011, Mr Aploon and Mr Lombard (Koeberg’s operations training
manager) met with the DROs and explained the need for
them to undergo
another psychometric assessment. Although displeased, no one refused
to do so. At this point, it was not anticipated
that the results
would be such that anyone would be suspended from the training
programme, albeit that there were no guarantees.
[22]
Around
about 13 May 2011, Mr Butler (the section head for ILT) put up a
schedule in the training room, which reflected a training
contingent
of 18 reduced to 12 learners on ILT 10/12. This arose in
circumstances where some capacity constraints had been experienced
and some planning considered.
[23]
On 3 June
2011, using the new battery of tests, Dr Theron assessed the 13 DROs
on ILT 10/12. Six of them were recommended with reservation,
with
three of the six being recommended with “
strong
reservation
”.
[12]
The applicants were the ones recommended with strong reservation.
This in circumstances where certain cognitive, and EQ and personality
limitations were identified in respect of each of them. The details
were set out in Dr Theron’s psychometric assessment summary
reports (which were sent to the applicants on 8 September 2011). By
way of example, these sorts of reservations were identified:
very
slow processing speed; extremely high perfectionism and rule
adherence (which inhibits problem solving); and selective and
divided
attention becomes problematic under increased stress / pressure.
Significantly, Dr Jungschläger agreed with Dr Theron’s
assessment of the applicants.
[24]
After
having undertaken the psychometric assessments, Dr Theron met with Mr
Aploon to discuss the results. On the advice of Dr Theron,
Mr Aploon
decided that the six learners in question needed to be suspended from
ILT 10/12 pending remediation. The decision was
based in part on the
experience with ILT 7/8, where allowing learners who had been
recommended with reservation (let alone strong
reservation) onto the
programme had contributed to a huge failure rate.
[25]
On 24 and
25 August 2011, Dr Theron gave each of the applicants feedback on a
one-on-one basis (this in circumstances where the
results were
confidential). During the course of her feedback, Dr Theron explained
to the applicants that “
it
doesn’t mean not recommended forever and that the development
areas have been identified and that my plan is to work with
them on
these development areas to put them in a better position for a
following course
”.
[26]
Directly
after Dr Theron had given her one-on-one feedback, Mr Butler held a
meeting with the applicants, and explained to them
the decision to
suspend them from ILT 10/12 pending remediation. Mr Aploon had asked
Mr Butler to stand in for him as he was on
a business trip at the
time.
[27]
The
suspended DROs were given a choice – either complete SIC (the
component of the training programme they were busy with),
which would
shorten recovery time in respect of their deferred completion of the
training, or return to shift work immediately.
Messrs Nhleko
[13]
and Linose
[14]
chose to
complete SIC, while Mr Mashao
[15]
decided not to do so, and asked to be seconded elsewhere. SIC started
in September 2011 and was completed towards the end of the
year.
[28]
On 13
September 2011, the aggrieved DROs met with Mr Aploon during the
course of which they raised their concerns about being suspended
and
about the delay in the completion of their training. Before this, and
despite it being apparent for some time that ILT 10/12
was well
behind schedule, the DROs had never raised the issue. (In fact, by
the time that the applicants were suspended from ILT
10/12 in August
2011, four years had already lapsed, and they had only completed two
of the four training phases. There were various
reasons for this
delay.)
[29]
In January
2012, after the applicants had returned from annual leave, Dr Theron
met with their shift managers (Mr Frew in respect
of Messrs Nhleko
and Linose, and Mr Weckesser in respect of Mr Mashao) to discuss the
applicants’ remediation plans, which
she had prepared in that
month. In broad summary, what was required was that the applicants
should job shadow a RO in the control
room who would mentor them, and
that they would be offered a referral (paid for by Eskom) to an
external clinical psychologist,
Mrs Kapnias, to assist them with
identified developmental areas. (The former was referred to as
“
cognitive
remediation
”
and the latter as “
EQ
remediation
”.)
Mrs Kapnias had assisted Koeberg with the remediation of employees
for many years.
[30]
The shift
managers, in turn, conveyed the remediation plans to the applicants.
While Mr Nhleko was positive about undergoing remediation,
Messrs
Linose and Mashao were disinclined to do so. Mr Linose’s
reluctance to engage with Mrs Kapnias stemmed from his insistence
that he first receive his psychometric assessment scores from Dr
Theron, which she had refused to release (otherwise than to an
appointed clinical psychologist) for ethical reasons.
[31]
On 10
February 2012, Mr Aploon, Mr Engel and Dr Theron held a meeting with
the applicants, at which the deterioration in the parties'
relationship was discussed.
[32]
On 20 March
2012, Mr Aploon sent so-called “
deployment
”
letters to the applicants, which read as follows (in part):
“
As previously communicated,
your participation in the Direct Reactor Operator Program has been
suspended. In the interim you will
be redeployed to your originating
shift. As a Direct RO, the only qualifying criteria for re-joining
the program at the next course
(March 2013 tentatively) is the
successful completion of RO psychometric testing.
Your personal grade and basic
remuneration will remain unchanged.”
[33]
Further to
this, NUM (on behalf of the applicants) referred an unfair labour
practice dispute in relation to training to the CCMA.
The arbitration
of the matter ran intermittently between 7 September 2012 and 19
April 2013, with the award being issued on 13
May 2013.
[34]
It was only
after the award was issued that Mr Nhleko – and he alone –
decided to take up the offer to consult with
Mrs Kapnias. They held
six consultations during the period 18 July 2013 to 17 October 2013.
Mrs Kapnias assisted Mr Nhleko with
the EQ component of his
remediation, while the cognitive component thereof was undertaken in
the plant.
[35]
On 30 July
2014, the applicants’ contractual claim was referred to this
court by way of the filing of a statement of case.
[36]
The 11
learners who ultimately remained on ILT 10/12 were subsequently split
into two groups, of six (DROs) and five (NPOs) respectively.
The
first group commenced with simulator training (phase 3) in August
2011 and were licensed in October 2013. The second group
commenced
with simulator training in August 2013 and were licensed two years
later. This in circumstances where only one simulator
was available,
or Eskom only had the resources to operate one.
[37]
After
having completed his remediation with Mrs Kapnias and at the plant
during his shifts, Mr Nhleko was positively re-assessed
by Dr Theron
in 2016. He re-joined phase 3 of the training in August 2016, and is
due to qualify as a RO in August 2018 (albeit
that there is no
guarantee of this).
[38]
Given the
problems experienced with ILT 10/12, the DRO programme has been
abandoned. Furthermore, the training period for RO learners
has been
extended.
[39]
Finally,
there are a few points relating to the CCMA arbitration and action in
this court that can also be conveniently dealt with
under this head.
The first is to record the witnesses who testified in the CCMA,
namely: Mr Moses (an applicant in the CCMA who
settled), Mr Linose
and Mr Mashao (for NUM); and then Dr Theron, Mr Aploon, Mr Butler and
Mr Frew (for Eskom). The second is to
record the witnesses who
testified in person before this court, namely: Mrs Kapnias and Mr
Nhleko (for NUM); and then Mr Engel
(for Eskom). The third is to
record that the applicants effectively seek damages for the lost
opportunity of qualifying as ROs,
with their claim being based on the
short fall in their earnings. Each claim is for some R1.7-million.
The issues for
determination by this court
[40]
As
mentioned above, Eskom has raised a special plea of issue estoppel,
which stands to be determined at the outset.
[41]
The next
issue for determination is whether Eskom breached the applicants’
contracts of employment, which involves the determination
of the
following issue, as per para 146 of the pre-trial minute:
“
146.1 Whether the
respondent acted unlawfully and in breach of contract by:
146.1.1 failing to ensure that
the employees completed the training programme within 48 months;
146.1.2 removing second to
fourth applicants from the training programme prior to completion of
the programme;
146.1.3 requiring second to
fourth applicants to undergo psychometric assessment in June 2011;
146.1.4 removing the employees
from the training programme based on the June 2011 psychometric test
results;
146.1.5 refusing to furnish the
employees or Dr Myburgh (who had been nominated by the
applicants) with copies of their
psychometric assessment results.
Alternatively
146.2 If it is found that
it was a term and condition of employment to require the applicants
to undergo psychometric
testing in 2011 whether:
146.2.1 clauses 16 and 18 of the
Rules of Conduct Pertaining Specifically to Psychology precluded
Dr Theron from subjecting
the employees to psychometric
assessments;
146.2.2 the identification of
psychometric reservations allowed the suspension of the employees
from the training programme;
146.2.3 the respondent could
withhold the psychometric assessment reports from the employees.”
[42]
In the
event of a breach of contract being determined, the final issue for
determination is whether the applicants are entitled
to damages, and
if so, the quantum thereof.
The commissioner’s
award
[43]
As a
prelude to the determination of Eskom’s special plea of issue
estoppel, it is necessary to deal with the findings made
by the
commissioner in his award in some detail.
[44]
The
commissioner framed the issue in dispute as being “
whether
the respondent’s conduct in removing the applicants from a
training programme for reactor operators, amounted to an
unfair
labour practice
”.
[16]
[45]
The award
reflects that the applicants raised the following three central
issues, which they contended led to the decision to remove
them from
the training programme being substantively unfair:
[17]
firstly, that “
it
was [not] an NNR licensing requirement to subject them to
psychometric assessments during the tenure of their training
”;
secondly, that they “
should
[not] have been subjected to psychometric assessments before ILT
”;
and thirdly, that Eskom “
had
a prior ulterior plan to reduce the number of candidates
”
on the training programme.
[46]
The
commissioner determined each of these issues in favour of Eskom.
Regarding the first issue (i.e. the NNR licensing requirement
issue),
the commissioner found:
“
27. The Applicants denied that
it was an NNR licensing requirement to subject them to psychometric
assessments during the tenure
of their training. The only
psychometric assessments that employees were subject to were at the
recruitment stage and when people
applied for positions at a higher
job level. Since they had started they were unaware of any previous
RO candidates having been
subjected to psychometric assessments
during the course of their training.
28. The Respondent, however, referred
to a plethora of documents to support its case. These consisted of
NNR licensing documents
as well as certain internal policies and
procedures.
29. LG1019 is a Guide to the
Requirements for Medical and Psychological Surveillance and Control
of Licensed Operators at Licensed
Facilities. It is clear from the
preface (at 1B) that the guide also applies to recruits for licensed
operator positions at licensed
facilities. The document also requires
licensees such as the Respondent to implement a program of medical
and psychological surveillance
and control in order to provide
assurance that no adverse impact on the safe operation on the plant
will result from the medical
or psychological deficiencies in such
personnel (paragraph 1, page 1C). The Station Psychologist, who
at the time was Dr Theron,
needs to give the NNR the assurance
that licensed operators and recruits are psychologically fit. A
failure to comply with the
requirements of medical and psychological
surveillance and control may become a licensing issue for the
Respondent.
30. Appendix B of LG1019 (page 1R)
records the ‘Psychological Criteria for Rejection’ as
‘
The following shall be considered primary disqualifying
conditions in respect of licensed operators
or
candidates
: (1) alcoholism and alcohol abuse; (2) drug
abuse; (3) psychopaths – severe antisocial behaviour;
(4) schizophrenics;
(5) pronounced affect distortion (e.g.
depression and manic sates); (6) criminal offices; (7) any other
condition considered by
the psychologist or the council to be
potentially or actually detrimental to the promotion and maintenance
of nuclear safety standards
of licensed operators
.’
31. Dr Theron testified that the
above conditions required clinical diagnosis which could not have
been carried out by Psymetrics
as they were industrial psychologists
who were not qualified to conduct clinical assessments. Hence, on
this basis, Dr Theron asserted
that the psychometric assessments
conducted at recruitment phase was incomplete and this was one reason
for the Applicants to have
undergone another round of psychometric
assessments which also included a clinical component. Dr Theron’s
evidence could
not be controverted and thus is accepted.
32. KSV-001 records the ‘Recruitments
for Medical and Psychological Surveillance and Control of Radiation
Workers and Licensed
Operators’. It states that ‘
All
potential license candidates must undergo psychological and
psychometric evaluation for suitability
’ (paragraph
5.3.7.1, page 48). It also stipulates certain of the primary
disqualifying conditions as stated above and
obliges the licensee to
give the assurance to the NNR that RO’s and by implication,
‘potential licence candidates’,
meets the medical and
psychological criteria.
33. The Applicants argued that the
documents do not specify that psychometric assessments,
per se
,
be carried out, but rather that the policies refer to ‘psychological
surveillance’. The evidence of Dr Theron,
who was the only
expert called to testify was clear that psychometric assessments
formed part of psychological surveillance, which
may also be
conducted in other ways such as observations and interviews.
34. I am satisfied, that as a general
requirement, the Respondent had to give the NNR the assurance that
RO’s and license
candidates were psychologically fit and that
the means whereby the Respondent chose to do so was through
psychometric assessments.
I am further persuaded that the Respondent
was dutybound to check for primary disqualifying disorders given that
such assessments
were not previously done. I cannot find that the
Respondent had acted on a whim or with a
mala fide
motive.”
(Original italics and underlining.)
[47]
Regarding
the second issue (i.e. the assessment before ILT issue), the
commissioner found:
“
35. The witnesses of both
parties confirmed that it was not the norm to subject RO candidates
to psychometric assessments before
ILT. The Applicants as well as
Mr Aploon were unaware of this requirement. The directive for
the psychometric assessment to
be conducted came from Dr Theron.
36. KAA-591 deals with ‘The
Medical and Psychological Surveillances and Control of Radiation
Workers and Licensed Operators’.
This document is applicable to
all persons occupationally disposed to radiation, licensed operators
and
license trainees
(paragraph 2.1).
37. In terms of appendix 8 ‘
All
Licensed Operators and
Initial License Trainees
have to undergo specific medical and psychological assessments to
establish their physical and psychological fitness to work under
stressful conditions and to make sound independent decisions when
required to do so. These assessments are to be conducted before
employment and at regular intervals set out in the license document
LD1077 rev. one.
Additional assessments
may be
necessary, as determined by the Site Appointed Medical Practitioner
and/or the Site Appointed Psychologist
.’
38. In terms of the Psychological
Surveillance Protocol when it comes to selection and training, it
provides for the ‘
comprehensive psychometric assessment of
all potential operators’
as well as the ‘
re-assessment
of candidates for initial licence training once they are selected for
potential licensing
’.
39. KAA-788 records ‘The Process
for the Recruitment and Selection of Operators’. This document
also applies to Initial
License Training Candidates i.e: ‘
a
person who was selected in accordance with an authorised process and
who was undergoing all the required training to obtain an
operator
license
’ (paragraph 3.1.1).
40. Applicable to this document are
LG-1019 and KAA-591. In terms of the ‘Workflow Responsibility
Matrix for SRO and RO Initial
Licence Candidate Recruitment and
Selection’ (paragraphs 12 to 16) the psychologist must perform
psychometric testing, compile
psychometric reports, decide on
potential candidates and thereafter she must inform the NNR of the
candidates and forward the psychometric
reports to the NNR.
41. Clearly, in terms of these
policies, there is sufficient evidence to suggest that the Respondent
had good reason to pursue psychometric
assessment before ILT.
42. Furthermore, Dr Theron also
testified that the results of psychometric assessments were valid for
a period of 12 months with
cognitive functioning and aspects of the
psychological profile potentially having changed. Although the
Applicants challenged this
statement, given her level of expertise,
and in the absence of any contradictory evidence, I am prepared to
accept her expert viewpoint.
43. Given that the Applicants last had
a psychometric assessment four years prior to ILT, she was not in a
position to use those
results as a measure of assurance for the NNR
and thus proposed that the Applicants subject themselves to a second
batch of psychometric
assessments. I do not find this to be an unfair
reason.
44. A further reason given by the
Respondent for the re-assessment was that the battery of psychometric
assessments had changed.
In August 2007, an ILT 6 candidate was
removed from the programme due to certain clinical issues which had
arisen and had
not been identified during the initial psychometric
assessments at recruitment phase. The battery was reviewed during
2008 by Ms Thoko
Nkosi, the previous Station Psychologist and
Dr Willem
Jungschläger
,
the contract psychologist.
45. Another reason proffered was that
after the high failure rate of the ILT 7 8 group in July
2009, a root cause analysis
was done which found that a huge
contributor to the failure rate was the ‘
inappropriate
selection of a relatively large group of learners with psychometric
reservations
’. Given that the Applicants had initially been
‘recommended with reservations’ there was nothing
untoward about
subjecting them to a re-assessment given the debacle
of ILT 7 8.
46. Also, in November 2010, Dr
Jungschläger
a
ssessed seven NPO
candidates from the ILT 10 12 group with the improved
psychometric battery. In Dr Theron’s
view it was important
that the DRO component of the ILT 10 12 group, which
included the Applicants, be subjected to the
same battery of
assessments for purposes of uniformity and consistency.
47. Purely on a substantive basis, I
am satisfied that the reasons provided by the Respondent for the
re-assessment are reasonable
and not within the realm of being
‘arbitrary or capricious’. I am persuaded that given the
import of the RO positions,
coupled with the regulatory framework and
the Respondent’s prior negative experience with other ILT
groups, that the decision
to re assess the Applicants was based
on a sensible and rational approach to hopefully fostering a
successful group of ILT
candidates who meet the criteria as
established by the NNR.” (Original italics and underlining.)
[48]
Regarding
the third issue (i.e. the ulterior motive for removal issue), the
commissioner found:
“
49. The ILT course is
experiential and scenario-driven. It is largely conducted in a
simulator which simulates incidents that may
occur during real life.
Candidates are put in small groups and spend time in the simulator
responding to these scenarios.
50. The Respondent only had one
simulator at Koeberg. In the past the Respondent also made use of a
simulator in France for ILT
training. At some point a decision was
taken not to use the simulator in France any longer, and rather for
the Respondent to acquire
and install a second simulator. During
mid 2011, Mr Butler and Mr Chris Lombard, the Operations
Training Manager travelled
to Canada to test the new simulator, but
because it was found to be unsuitable it was not procured.
51. Mr Butler testified that although
it would have been better to have two simulators on site, the
Respondent could still cope
with one simulator. He spoke about
various methods that could be implemented such as staggering the
groups or running them in series.
Although either method would have
caused the programme to be prolonged, I cannot find, even on a
balance of probabilities, that
the fact of one simulator was a
decisive factor in reducing the number of candidates. The current
status of the ILT group is that
eleven candidates are left and have
been divided into two groups comprising of six and five candidates
respectively. The candidates
have sought that the course be run in
series which has been acceded to. This implies that the Respondent
has acceded to the commensurate
delay in finalisation of the second
group. I am satisfied that the Respondent would have dealt with the
existence of a bigger group
as would have been necessary and come up
with a plan.
52. Mr Linose also testified to the
fact that during May 2011, Mr Butler had put two schedules on
the wall for the upcoming
ILT training. The one schedule was for
eighteen RO candidates and the other for twelve candidates. According
to the Applicants
this was a firm indicator that the removal of six
candidates was a foregone conclusion. Mr Butler testified that at the
time, the
plan was always to have two simulators, and thus the
removal of candidates because of a lack of resources was not part of
any plan.
The alternative schedule was designed in the event of the
non-arrival of the second simulator and there had to be a delay of a
group. There was discussion between the candidates and Mr Butler
around how the group would be reduced. Mr Linose testified
that
the response was that issues such as tardiness, sick leave records
and the pass rate of quizzes would be looked at whereas
Mr Butler
testified that he would be looking at performance. He had no power to
remove anyone from the course, and the alternative
was simply a
forward plan to deal with a group that would be delayed.
53. I do not believe that I need to
make a definitive finding on this particular issue, save to say that
although it appears to
be an irresistible conclusion that the numbers
have been pre-planned, it is clear that for such a devious plan to
work, a conspiracy
had to be driven by a group consisting of
Mr Aploon, Dr Theron, Mr Lombard and Mr Butler. The
evidence could not
provide a nexus between these people in hatching
such a plan. I thus reject this line of argument as mere conjecture
and am not
persuaded that this was the actual reason for the removal
of the Applicants from the programme.
54. The Applicants were given a letter
headed ‘Deployment’ by Mr Aploon which was dated
2011-03-19. They thus contended
that their suspension was decided at
least a year prior to them being offered redeployment.
55. The Applicants’ argument in
this regard is two-fold. Firstly, the date on the letter 2011-03-19
indicates when the letter
was drafted and secondly, the list of
Directors at the foot of the letter shows that the letter could not
have been drafted in
2012 as certain persons such as R M Godsell
and P J Maroga were no longer directors in 2012.
56. Mr Aploon’s evidence is that
he simply over-wrote an old letter containing an old letterhead. Mr
Aploon’s explanation
is that neither Mr Godsell, nor
Mr Maroga was a director in 2011. Both had left the employ of
the Respondent in about
2009. Furthermore, he had erroneously
recorded the year as 2011 rather than 2012.
57. Mr Aploon’s evidence is also
borne out of the fact that the email to which this letter was
attached as a PDF file, was
emailed to the Applicants on the
following day, 20 March 2012.
58. For this line of argument to
succeed, I should believe that Mr Aploon had drafted the letter
one year ago and therefore
it was pre-dated. He then saved the letter
in order to use it one year later. The date on the PDF file is simply
coincidental.
Surely, such an argument cannot reasonably be believed.
It is more likely that the date on the letter was an error, and thus
I
reject this submission.
59. Much was made of the fact that
Dr Theron had overshot her authority, had come in as a new
Station Psychologist intent on
stamping her expertise and wanting to
change things that were not found problematic in the past. I have
already found that Dr Theron
had acted within the scope of her
practice and in compliance with NNR regulations and internal
policies. I accept that she precipitated
changes but find that the
reasons for doing so were well-founded and within the ambit of her
expertise and the procedures that
governed her. Whether the manner in
which this was done was fair, remains to be discussed.
60. I do not deem it a critical point
to determine whether or not Dr Theron had to give the Applicants
their scores. She was
prepared to share it with a fellow clinical
psychologist as is proposed by the ethical code of her profession.
She used her discretion
in not providing the scores to the Applicants
because of possible misinterpretation of the data, and preferred to
err on the side
of caution. I find this to be acceptable, and do not
find this to be unfair. In my view, this issue is not particularly
germane
to the main issue of their removal from training.”
[49]
The
commissioner went on to conclude that “
[o]n
a broad conspectus, I cannot find that the reasons for seeking the
applicants to undergo the psychometric assessments, to have
been
arbitrary, capricious or in bad faith
”;
that “
the
reasons for the assessments [were] fair and valid
”;
and that Eskom’s “
actions
were … based on fair reasons
”.
[18]
Eskom’s special
plea of issue estoppel
(i)
Formulation of the special plea and the applicants’
opposition
[50]
In summary,
Eskom formulates its special plea as follows.
a)
Having
referred to the issues for determination by this court as set out in
para 146 of the pre-trial minute
[19]
and to the three main issues determined by the commissioner,
[20]
it isolates these five findings by the commissioner:
i.
Eskom had
to give the NNR the assurance that the applicants were
psychologically fit for duty. Eskom was accordingly dutybound to
check for primary disqualifying disorders given that such assessments
had not previously been done (award: para 34);
ii.
Eskom had
good reason to pursue psychological assessments before ILT (award:
para 41);
iii.
given the
import of the RO positions, coupled with the other ILT groups, the
decision to psychometrically re-assess the applicants
was based on a
sensible and rational approach to hopefully fostering a successful
group of ILT candidates who meet the criteria
as established by the
NNR (award: para 47);
iv.
Dr Theron
acted within the scope of her practice and in compliance with NNR
regulations and internal policies (award: para 59);
and
v.
Dr Theron’s
refusal to release the psychometric scores to the applicants was
acceptable (award: para 60).
b)
It contends
that the commissioner’s “
findings
directly address the same issues that the applicants have again
raised for determination before this court
”,
and that they should thus be estopped from doing so.
c)
It
concludes that in the event that this court finds that the applicants
are bound by the findings in the award, “
the
factual foundation for the applicants’ claim would lack merit
and the claim should accordingly be dismissed
”.
[51]
The
applicants’ opposition is based on the contentions that the
plea of issue estoppel should fail because:
a)
the same
issue does not arise, since the commissioner was required to
determine an unfair labour practice claim and this court a
breach of
contract claim;
b)
none of the
findings that Eskom wishes to make binding on this court are of any
relevance to the contractual claim;
c)
the
findings of the commissioner involving the interpretation of the NNR
regulations are wrong and involve questions of law, which
this court
is in as good a position to determine; and
d)
the
findings of the commissioner based on the alleged expert evidence of
Dr Theron are wrong because she is not an expert in the
areas she
ventured her opinion about, and, in any event, are wrong on the
merits.
(ii)
Legal principles: issue estoppel
[52]
Harms
[21]
provides this typically succinct statement about issue estoppel with
reference to current case law:
[22]
“
The ambit of the
exceptio
rei judicata
has been
extended by the relaxation in appropriate cases of the common-law
requirements that (a) the relief claimed and (b) the
cause of action
be the same.
Where the circumstances justify the
relaxation of these requirements those that remain are that (a) the
parties must be the same
and (b) the same issue must arise. The
latter involves an inquiry into whether an issue of fact or law was
an essential element
of the judgment on which reliance is placed. It
has become commonplace to speak of ‘issue estoppel’ when
the plea of
res judicata
is raised in the absence of a
commonality of cause of action and relief claimed.
The defence remains one of
res
judicata
. The recognition of the defence in such cases requires
careful scrutiny. Each case depends on its own facts. Relevant
considerations
include questions of equity and fairness to the
parties and also to others.”
[53]
The purpose
of issue estoppel is to prevent the repetition of lawsuits between
the same parties, the harassment of a respondent
by a multiplicity of
actions and the possibility of conflicting decisions by different
courts or tribunals on the same issue.
[23]
Put differently, issue estoppel is founded on public policy to avoid
a multiplicity of actions – this in order to conserve
the
resources of the courts and litigants. But there is a tension between
a multiplicity of actions and the palpable realities
of injustice,
which may be caused by the rigid application of issue estoppel. It
must thus be determined on a case-by-case basis
without rigidity,
with the overriding or paramount consideration being overall fairness
and equity.
[24]
[54]
Whether
considerations of fairness and equity militate against upholding a
plea of issue estoppel will depend on the facts and circumstances
of
a particular case.
[25]
For
instance, where it was not necessary for the first court to have
arrived at any final decision on an issue in order to dismiss
a claim
or where the first court decided a disputed factual issue in motion
proceedings without the benefits inherent in the hearing
of oral
evidence, fairness demands that reliance on issue estoppel should not
succeed.
[26]
Along similar
lines, where a decision is clearly wrong and insupportable or
obtained by deceit or misrepresentation (and thus patently
wrong), it
has been held that fairness and equity will not permit a respondent
to shelter behind the decision, and effectively
non-suit the
applicant.
[27]
In such a case,
the exigency of conserving the resources of the courts and litigants
are outweighed by the palpable reality of
injustice.
[28]
(iii)
Evaluation and findings
[55]
On an
analysis thereof, the findings of the commissioner relied on by Eskom
(see para 50(a) above) fall within the ambit of the
issues defined in
paras 146.1.3, 146.1.5, 146.2.1 and 146.2.3 of the pre-trial minute.
But they do not cover the balance of the
issues for determination by
this court. Indeed, the commissioner made no finding on the 48-month
training limit. He also did not
deal with the propriety of removing /
suspending the applicants from the training programme discretely from
the issue of whether
they could be subjected to psychometric
re-assessment, save for having considered the ulterior motive issue
and made negative findings
of procedural fairness in relation to the
applicants’ removal / suspension.
[29]
It follows that the special plea in relation to issues other than
those defined in paras 146.1.3, 146.1.5, 146.2.1 and 146.2.3
of the
pre-trial minute must fail on this basis alone.
[56]
Should the
special plea in relation to the issues defined in paras 146.1.3,
146.1.5, 146.2.1 and 146.2.3 of the pre-trial minute
be upheld?
[57]
To begin
with para 146.1.3, the applicants contend that Eskom acted unlawfully
and in breach of contract by requiring them to undergo
psychometric
assessments in June 2011, with their case being that none of Eskom’s
policies and procedures authorised this.
As appears from the award,
whether Eskom was entitled to subject the applicants to psychometric
assessments in June 2011 was the
essential issue that the
commissioner was tasked with determining. The commissioner found that
Eskom was entitled to do so –
this with reference to various
policies and procedures and to the evidence of Dr Theron given in
relation thereto, and in circumstances
where it was common cause that
all such policies and procedures were incorporated into the
applicants’ contracts of employment.
[58]
To my mind,
the applicants are estopped from re-contesting this issue before this
court, for these reasons.
a)
There is a
clear commonality of the underlying issue: did Eskom’s policies
and procedures permit the psychometric re-assessment
of the
applicants? The fact that the causes of action are different in the
two sets of proceedings is not relevant because a commonality
of
cause of action is not a requirement for issue estoppel.
[30]
b)
In any
event, it flows from the commissioner’s finding that Eskom was
authorised in terms of its policies and procedures to
re-assess the
applicants that this was contractually compliant, because the
policies and procedures were incorporated into the
applicants’
contracts of employment.
c)
This leaves
only the question of whether, in the interests of fairness and
equity, the special plea should not be upheld on account
of the
finding allegedly having been wrong. While I accept that there are
cases where the courts have adopted this position, it
seems to me
that this should be the exception and not the rule – otherwise
a plea of issue estoppel would effectively be
rendered worthless and
the public policy considerations underlying it undermined. To my
mind, it is only in cases where the decision
is clearly wrong that an
otherwise good plea of issue estoppel should be assailable on this
basis. This will be the case where,
for example, a clear cut error of
law or patent mischief
[31]
gave rise to the initial decision. But this is by no means such a
case. Indeed, it seems to me that the commissioner’s decision
was correct – he having had the benefit of hearing the
witnesses and engaging over the matter for an extensive period of
time.
[32]
d)
In the
circumstances, this is not a case where a palpable injustice stands
to outweigh the exigency of conserving the resources
of the courts
and litigants. This is particularly so given that the resources of
this court are scarce, and given that Eskom has
already been put
through a marathon CCMA arbitration on the very issue in question.
Labour law dispute resolution is unique given
the jurisdictional
divide between the CCMA and this court.
[33]
Where applicants seek a second bite at the cherry by bringing
successive claims in the CCMA and then in this court, and where the
claim in this court involves a material issue that was determined by
the CCMA, it seems to me that the doctrine of issue estoppel
should
be readily applied. Not to do so will promote forum shopping,
[34]
and undermine the effective resolution of labour law disputes.
[59]
Turning to
paras 146.1.5, 146.2.1 and 146.2.3 of the pre-trial minute, all of
these issues fall within the ambit of the commissioner’s
findings about Dr Theron made in paras 59 and 60 of his award. I
can find no basis not to uphold the special plea in this
regard. (In
any event, Mr Euijen SC, who appeared for the applicants, did not
pursue these claims against Dr Theron in argument.)
[60]
I
accordingly rule – in the exercise of my discretion –
that the special plea of issue estoppel is upheld in respect
of the
issues defined in paras 146.1.3, 146.1.5, 146.2.1 and 146.2.3 of the
pre-trial minute, but is dismissed in respect of the
balance of the
issues defined in para 146 of the pre-trial minute.
[61]
I turn now
to deal with each of the issues for determination set out in para 146
of the pre-trial minute.
Alleged breach of
contract by Eskom in failing to ensure that the applicants completed
the training programme within 48 months (PTM:
para 146.1.1)
(i)
The claim and the background thereto
[62]
The
applicants’ claim is based on this clause in their contracts of
employment concluded in August 2007:
“
This training programme will
commence on start date to be confirmed by Kevin Engel and end upon
completion of the programme but
not exceeding a period of 48
months.”
[63]
On the
applicants’ interpretation of this clause, Eskom was obliged to
ensure that the training programme was completed within
48 months.
Eskom, on the other hand, contends that the provision is a best
endeavour clause for its benefit; that it did not constitute
a
guarantee; and, in any event, that the applicants tacitly consented
to the extension of the programme and elected to carry on
with
it.
[64]
In his
evidence, Mr Engel (who was involved in interviewing the applicants
and drafting the contract) explained that he reserved
to himself the
right to determine when the training would start so as to ensure
flexibility in relation to Eskom’s operational
requirements,
which he said applied to each of the phases of the training
programme. In relation to the 48-month period, Mr Engel
testified
that this was there to “
protect
the company
”,
in the sense of compelling trainees to apply themselves and complete
the training – this in circumstances where they
were relatively
highly paid, where the training itself was very expensive, and where
Eskom needed qualified ROs as there was a
shortage of them. According
to Mr Engel, the clause by no means constituted a guarantee that the
training would be completed in
48 months, but this was his “
best
guestimate
”
based on past practice. Mr Aploon echoed this in his evidence.
[65]
Consistent
with this, Mr Nhleko conceded under cross-examination that Eskom was
not able to predict with certainty exactly how long
the training
would take – this in circumstances where the RDO programme was
a new programme. And under re-examination, Mr
Nhleko made it clear
that “
there
can’t be any guarantees
”
when it comes to dates for the completion of training.
[66]
By the time
the applicants were suspended from ILT 10/12 in August 2011, they had
already been on the training programme for four
years, and had only
completed two phases of the programme. The reasons for the delay
included the following. Firstly, numerous
outages had been
experienced at Koeberg – the repair of which took priority,
with the applicants having been involved in
this. Secondly, delays
had been experienced in completing ILT 7/8 due to the problems
discussed above, which had a knock on effect.
Thirdly, at the time
that the applicants were employed (in July 2007), it was anticipated
that a second simulator would be commissioned
in 2009, but this was
delayed for over two years.
[67]
Significantly,
the first time that the applicants ever complained about the delay
was during the September 2011 meeting with Mr
Aploon. But this was in
the context of them having been suspended from the training programme
at that point. Before this, despite
knowing full well for an extended
period of time that the training would not be completed within 48
months, the applicants raised
no objection whatsoever.
(ii)
Evaluation and findings
[68]
Even if I
were to accept that the 48-month clause is reciprocal and not simply
for the benefit of Eskom (as Mr Euijen submitted
I should do), I have
difficulty in accepting that the clause constituted a contractual
guarantee that the training programme would
be completed within 48
months. When regard is had to background and surrounding
circumstances to the enactment of the clause, this
seems
inconceivable, let alone “
insensible
or unbusinesslike
”.
[35]
As the facts demonstrate, the vagaries associated with nuclear
reactor operator training are simply too vast to allow for
this.
[69]
The conduct
of the parties bears this out. For four years before their suspension
from the training programme, the applicants never
asserted any right
to the completion of their training within 48 months. Clearly, they
did not do so because they accepted that,
when it came to the
completion of their training, exact predictions were impossible –
and there were simply no guarantees.
[70]
I am thus
in agreement with Mr Boda SC, who appeared for Eskom, that the
48-month clause was, in effect, directory and not mandatory.
Alternatively, it seems to me that there may well be force in
Eskom’s contention that the applicants tacitly agreed
to and
condoned the extension of the 48-month period. Either way, the breach
of contract claim under this head must fail.
[71]
Finally,
the applicants’ right to receive training ultimately was still
subject to them being qualified for training. It follows
from this
that if Eskom had the right to subject them to a further psychometric
assessment (as the commissioner found) and to suspend
them from the
training programme (issues that I deal with below), then an
independent claim based on a breach of the 48-month clause
cannot
succeed.
Alleged breach of
contract by Eskom by requiring the applicants to undergo psychometric
assessments in June 2011 (PTM: para 146.1.3)
[72]
Having
upheld the special plea of issue estoppel in respect of the issue
defined in para 146.1.3 of the pre-trial minute, I dismiss
this
claim. This in circumstances where the commissioner’s findings,
in effect, cut across the claim and are dispositive
of it. (See para
58(b) above.)
Alleged breach of
contract by Eskom suspending / removing the applicants from the
training programme prior to its completion based
on the June 2011
psychometric test results (PTM: paras 146.1.2, 146.1.4 and
146.2.2)
(i)
The claim and the main lines of argument
[73]
It is the
applicants’ case that even if this court finds that Eskom was
permitted to subject them to a second set of psychometric
assessments
(as I have done), in the absence of any primary disqualifiers (which
are not applicable in the matter), Eskom was not
permitted to
suspend, remove or otherwise delay the completion of their training
as a consequence.
[74]
In
argument, Mr Euijen advanced the applicants’ case as follows.
The “
strong
reservations
”
identified by Dr Theron meant only that the simulator training would
be more difficult for the applicants and that (if not
attended to)
they were more likely to fail (as the ILT 7/8 experience had shown).
But this, so it was contended, did not serve
as a lawful basis to
suspend the applicants from the training programme. Instead, the
applicants should have been remediated while
simultaneously
undergoing the simulator training, as occurred (so it was contended)
with ILT 7/8.
[75]
In the
alternative, and insofar as this court finds that it was lawful for
Eskom to make the offer contained in the deployment letters
of 19
March 2012, Mr Euijen submitted that the offer was hollow and was not
fulfilled.
[76]
Finally, Mr
Euijen submitted that, in truth, Eskom had an ulterior motive in
suspending the applicants from ILT 10/12, namely that
it had a
capacity problem and needed to find a way to reduce the group from 18
to 12. (I deal, in turn, with each of these legs
below.)
(ii)
A lawful basis for suspension from training?
[77]
Flowing
from the commissioner’s findings that Eskom was entitled to
subject the applicants to psychometric assessments prior
to them
commencing with the simulator training (which I have found binding on
the applicants), it seems to me that Eskom must have
had the right to
suspend the applicants from the training programme pending
remediation, in appropriate circumstances. While the
various policies
and procedures (the core of which were referred to by the
commissioner) may not provide for this expressly,
[36]
to interpret them as prohibiting the suspension of initial license
trainees, as the applicants seek to do, would be insensible
and
unbusinesslike. On the applicants’ construction, Eskom would be
stuck with having to provide hugely expensive simulator
training to
learners suffering from serious psychometric reservations come what
may, which would be absurd. Not only is there a
risk that such
limitations will cause the leaners to fail, but there is also the
risk that they might cause the whole group to
fail. In the result, I
find that Eskom had the discretion to suspend pending remediation,
which had to be exercised properly and
in good faith.
[78]
Dr Theron’s
expert opinion was that given the extent of the applicants’
psychometric reservations, they needed to be
suspended from the
training programme, and then remediated and reassessed before
undertaking the simulator training. As far as
she was concerned,
given that both processes were taxing, the applicants could not
successfully undertake remediation and the simulator
training
together – it would be unfair on them and negatively impact on
the whole group, leading to delays and the slowing
down of training.
It was also entirely impracticable for the applicants (and others
with reservations) to be split out into their
own (weak) group.
According to Mr Aploon, the serious psychometric reservations that
had been identified in respect of each of
the applicants posed a
threat to the success of the ILT 10/12 group as a whole – this
in circumstances where the simulator
training is undertaken in teams.
Mr Butler echoed this – these candidates would hold back the
others; more and more training
time would have to be added because of
them; and it was extremely difficult for them to undertake
remediation while continuing
on the programme. According to Mr Engel,
he had accepted Dr Theron’s expert advice, and was not at
liberty to ignore it.
He also explained that it would not have been
possible for the applicants to have been interposed in the simulator
training that
was underway after they had completed their
remediation. For his part, Mr Nhleko fairly conceded under
cross-examination that given
the cost of the simulator training and
the fact that Eskom’s experience in the past was that
candidates with psychometric
reservations failed, there was nothing
wrong with it having decided to “
fix
the problem
”
before allowing the applicants to embark on the simulator training.
His concern related to the amount of time it took in
relation to him.
[79]
Also of
relevance are the facts in relation to ILT 7/8. While it is true that
they were remediated as a group without having been
suspended from
the training programme, the circumstances were different, as Mr Engel
testified. They had completed their training,
but failed their
examination, and were then remediated, resulting in them passing the
second time round. In the present case, the
simulator training was
about to begin and Eskom wanted to protect itself against the
potential failure of certain candidates and
the potential of them
pulling down the whole ILT 10/12 group.
[80]
Having
regard to the brief survey of evidence undertaken above, it seems to
me that the applicants’ case must fail on two
grounds. The
first is that the decision to suspend the applicants from the
training programme was not simply motivated by a reasonable
apprehension that they would fail, which, in itself, may well have
been a valid ground for their suspension. Instead, there was
also a
very real concern that their continuation on the programme would
imperil the success of the entire group, which seems to
me to have
been an altogether valid and lawful basis for their suspension
pending remediation. Secondly, on the case advanced in
argument, the
applicants accepted that they had to be remediated before they could
become ROs, with the dispute thus boiling down
to when this should
occur. To my mind, the applicants did not assail Eskom’s case
that this could not be undertaken simultaneously
with the simulator
training; nor that they could not have been introduced midway into
the simulator training after having been
remediated. In short, I am
unable to fault the expert advice that Dr Theron provided to Eskom,
and consider that in exercising
its discretion to suspend the
applicants on the basis thereof, Eskom acted lawfully.
[81]
There is a
further issue advanced by Mr Boda in argument that resonates with me.
It is the flip side of the same coin: in order
for the applicants to
qualify for the simulator component of the training (referred to as
the ILT component), they were required
to successfully demonstrate
that they did not have any psychological conditions that required
attention before the simulator training.
And for as long as they were
unable to do so and thus unable to perform, Eskom was entitled to
withhold performance of its obligations.
[37]
Eskom thus did not act unlawfully. Although the
exceptio
non adimpleti contractus
was not pleaded by Eskom, the applicants suffer no prejudice because
all the relevant facts were traversed in evidence.
(iii)
Was the
offer of remediation hollow and not fulfilled?
[82]
The
applicants’ case in this regard is based on these factual
contentions:
a)
the
applicants were advised of their suspension from the training
programme on 24 / 25 August 2011;
b)
thereafter
two of the applicants elected to complete SIC, while the third was
sent back to his originating shift;
c)
Dr Theron
only devised remedial plans for the applicants during January 2012,
but did not discuss them directly with the applicants
(but rather
with their shift managers) and did not provide them with the plans;
d)
thereafter,
matters were left entirely in the hands of the applicants and the
shift managers, with neither Dr Theron nor anyone
else monitoring
progress (different to what occurred with ILT 7/8);
e)
it was only
on 19 March 2012 that the applicants were provided with deployment
letters advising that if they passed another psychometric
assessment,
they would be accepted onto the next intake of simulator training
(then scheduled to commence in March 2013);
f)
Mr Nhleko
completed his remediation with Mrs Kapnias by 17 October 2013, and
had shadowed a licensed RO (this being his cognitive
remediation),
yet he was not allowed to re-join ILT 10/12 when the second group
undertook simulator training in September / October
2013;
g)
the second
simulator arrived by the end of 2013, but still Mr Nhleko was not
placed on simulator training; and
h)
Mr Nhleko
was placed on the next simulator training programme, which commenced
in August 2016 and will be completed in August 2018.
[83]
To my mind,
these facts do not paint the complete picture, as it emerged in
evidence. Amongst others, these additional facts are
relevant:
a)
shortly
after the applicants were advised of their suspension in August 2011,
the first ILT 10/12 group commenced with their simulator
training
(running for two years), which the applicants could not join midway
through;
b)
in the
result, plans to remediate the applicants were not necessarily
urgent;
c)
Mr Mashao
appears to have elected to no longer participate in the RDO programme
in August / September 2011;
d)
Dr Theron
explained the delay in producing the remediation plans – SIC
was undertaken until the end of 2011 and the applicants
went on leave
at the end of the year;
e)
Dr Theron’s
decision to discuss the remediation plans with the shift managers in
January 2012 must be seen in the context
of the fact that it had been
decided that cognitive remediation would be undertaken on the job (in
the control room), which fell
within the domain of the shift
managers;
f)
Dr Theron
got feedback from the shift managers – Mr Nhleko was
interested, but the other two applicants were not;
g)
although
there was a delay in issuing them, the deployment letters (dated 19
March 2012) confirmed what the applicants had been
told from the
outset – they were suspended from the training programme
pending remediation;
h)
shortly
after this, NUM referred an unfair labour practice dispute to the
CCMA, which took until 13 May 2013 (when the award was
issued) to
resolve;
i)
before
this, Mr Mashao had elected not to continue with the RDO programme,
while Messrs Linose and Nhleko decided against remediation
(at least
with Mrs Kapnias) pending the outcome of the CCMA arbitration process
(where they sought an award of reinstatement onto
the training
programme without having to submit to any psychometric
assessments
[38]
);
j)
after the
award was issued on 13 May 2013, it appears that Mr Linose persisted
with his refusal to undergo remediation;
k)
after the
award was issued on 13 May 2013, Mr Nhleko, on the other hand,
decided to consult with Mrs Kapnias (which he did
from 18 July 2013
to 17 October 2013) – the delay having been caused by his
decision not to do so pending the outcome of
the CCMA arbitration;
l)
the second
ILT 10/12 group commenced with their simulator training in August
2013,
[39]
by which time Mr
Nhleko’s EQ remediation with Mrs Kapnias was not complete;
m)
furthermore,
it is by no means clear whether Mr Nhleko’s cognitive
remediation had been completed by then – it having
been his
evidence that he undertook job shadowing in the control room from
2012 until 2014;
n)
in any
event, as Mr Engel testified, the second ILT 10/12 group continued
training as a group pending them commencing simulator
training in
August 2013, and it would have been seriously disruptive to introduce
a new member;
o)
as Mr Engel
also testified, given that a large number of instructors left Eskom’s
employ around this time, Eskom did not have
the capacity to extend
the simulator training; and
p)
it was a
condition for Mr Nhleko’s re-joining the training programme
that he be positively reassessed by Dr Theron, which
she did in 2016,
further to which Mr Nhleko commenced with simulator training in
August 2016.
[84]
When
assessed in the light of the above, I find it difficult to understand
how the remediation issue can possibly be advanced in
respect of Mr
Mashao and Mr Linose.
[85]
This leaves
Mr Nhleko. He hedged his bets until the outcome of the CCMA
arbitration on 13 May 2013, and then agreed to consult with
Mrs
Kapnias, with his EQ remediation (at least) having been completed by
17 October 2013. The delay up to this point was attributable
to Mr
Nhleko’s own litigation strategy, and cannot be laid at the
door of Eskom. While this in itself meant that he missed
the boat for
the simulator training commencing in August 2013, it also appears
that his cognitive remediation continued for a significant
period
thereafter, which meant that the first time that he could undertake
the simulator training was in August 2016. In these
circumstances, I
cannot find that Eskom unlawfully delayed his remediation and
training.
[86]
In all the
circumstances, I do not consider there to be any merit in the
applicants’ contention that the offer of remediation
was hollow
and unfulfilled.
(iv)
Did Eskom have an ulterior motive in suspending the applicants?
[87]
The
applicants’ essential submission under this head is that Eskom
was looking for a reason to at least delay six DROs from
completing
their training with the remainder of ILT 10/12 (due to capacity
constraints), and when it was provided with the psychometric
assessments, it seized the opportunity this presented. Put
differently, the contention is that Eskom was
mala
fide
in
using the psychometric assessments to achieve the purpose of reducing
the number of learners on the simulator training.
[88]
As dealt
with above, “
whether
[Eskom] had a prior plan to reduce the number of candidates
”
was one of the three key issues determined by the commissioner. I
have quoted his findings in full in para 48 above.
[89]
Having
considered the evidence myself, I concur with the commissioner’s
conclusion that there is no merit in the applicants’
contention. To my mind, it is utterly improbable that,
inter
alia
,
Dr Theron and Messrs Butler, Aploon and Engel would have engaged in
the sort of conspiracy that inevitably underlies the applicants’
contention.
[90]
In all the
circumstances, the applicant’s claim based of the alleged
unlawful removal of the applicants from the training
programme
arising from the June 2011 psychometric assessments is dismissed.
Alleged breach of
contract in relation to Dr Theron subjecting the applicants to
psychometric assessments and withholding the results
/ reports (PTM:
paras 146.1.5, 146.2.1 and 146.2.3)
[91]
Having
upheld the special plea of issue estoppel in respect of the issues
defined in paras 146.1.5, 146.2.1 and 146.2.3, I dismiss
these
claims. This in circumstances where the commissioner’s
findings, in effect, cut across these contractual claims and
are
dispositive of them. The commissioner found, in effect, that Dr
Theron was entitled to act as she did. The fact that her /
Eskom’s
conduct it now attacked from a contractual perspective does not
change anything in this regard.
Conclusion and order
[92]
Having
found that the applicants have failed to establish any breach of
contract on the part of Eskom, the issue of damages does
not arise.
[93]
Given the
continuing relationship between NUM and Eskom, I do not consider it
appropriate to make any order as to costs.
[94]
In the
result, the following order is made:
a)
the
applicants’ claim is dismissed;
b)
there is no
order as to costs.
___________________________________
Myburgh,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the applicants:
M Euijen
SC instructed by Cheadle, Thompson &
Haysom (Cape Town)
For the
respondent: F
Boda SC instructed by Cliffe Dekker Hofmeyr (Cape Town)
[1]
I use this as shorthand for the
second, third and fourth applicants, and refer to the first
applicant as NUM.
[2]
Koeberg Nuclear Power Station.
[3]
Senior reactor operators.
[4]
Which has been shelved.
[5]
Initial licence training.
[6]
Psymetric Human Capital Assessment
Inc.
[7]
Its full description being “A
guide to the requirements for medical and psychological surveillance
and control of licensed
operators at licensed facilities”
(LG-1019), which was issued by the NNR.
[8]
Its full description being
“Requirements for medical and psychological surveillance and
control at Koeberg Nuclear Power
Station” (LD-1077).
[9]
Its full description being “Medical
and psychological surveillance and control of radiation workers and
licensed operators”
(KAA-591).
[10]
This being a purely NPO training
programme.
[11]
Appendix B: Psychological criteria
for rejection.
[12]
No issues appear to have arisen in
respect of the balance of the 13 DROs.
[13]
Fourth applicant.
[14]
Third applicant.
[15]
Second applicant.
[16]
Award: para 3.
[17]
For present purposes, no regard need
be had to the commissioner’s findings on procedural
unfairness, which led to the award
of six months’
compensation.
[18]
Award: paras 61, 76 and 77.
[19]
See para 41 above.
[20]
See para 45 above.
[21]
Harms
Amler’s
Precedents of Pleadings
(8
th
ed, 2015) at 323.
[22]
Including
Prinsloo
NO & others v Goldex 15 (Pty) Ltd & another
2014
(5) SA 297
(SCA) (“
Goldex
”);
cited with approval in
National
Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd
(2015) 36
ILJ
1261 (LAC) (“
Wanli
Stone
”).
[23]
Goldex
at para 23.
[24]
Bafokeng Tribe v Impala Platinum
Ltd and Others
1999
(3) SA 517
(BHC) at 566I-J.
[25]
Goldex
at para 26.
[26]
Estoppel
in
LAWSA
,
vol 18 (3
rd
ed) at para 75.
[27]
Holtzhausen and Another v Gore NO
and Others
2002 (2) SA 141
(C) at 156B-D;
Wanli Stone
at paras 30-40. This
applies only to issue estoppel. Where all the requirements of
res
judicata
are met, the
validity of the plea is not affected by the fact that the judgment
relied upon was wrong:
African
Farms and Township Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 564C-G.
[28]
Holtzhausen
at
156D; quoting words from
Bafokeng
Tribe
at at 566I-J.
[29]
Award: para 73.
[30]
As Wallis JA put it in
Aon
South Africa (Pty) Ltd v Heever NO and Others
[2017] 3 All SA 365
(SCA) at paras 40-41: “My conclusion is
that the claims advanced in these proceedings … involve the
reconsideration
of the very evidence and issues that were the
subject of the determination in the previous action. … With
respect, the
court below erred in holding otherwise by looking
mechanically at the elements of the causes of action in the two
cases, instead
of examining the issues that had been determined in
the previous case and comparing them with the issues that would need
to be
determined if the present case went to trial. … The
elements of
res judicata
in the form of issue estoppel were accordingly satisfied and the
special plea should have been upheld.”
[31]
Wanli Stone
is a good example of this.
[32]
Consistent with the commissioner’s
findings, it is noteworthy that in his evidence in this court, Mr
Nhleko conceded (unambiguously)
that he was aware from the outset
that he could be required to undergo a further psychometric
assessment at any time as part
of the station psychologist’s
duty to undertake the psychological surveillance of employees. He
went on to conceded that,
in the circumstances that transpired, Dr
Theron was perfectly entitled to require him to undergo a
psychometric test in 2011.
[33]
Section 158(2) of the LRA is a means
to bridge this divide.
[34]
As found in
Gcaba
v Minister for Safety & Security & others
(2010) 31
ILJ
296 (CC) at para 57, “forum shopping by litigants is not
desirable. Once a litigant has chosen a particular cause of action
and system of remedies (for example, the structures provided for by
the LRA) she or he should not be allowed to abandon that
cause as
soon as a negative decision or event is encountered.”
[35]
Natal Joint Municipal Pension Fund
v Endumeni Municipality
2012
(4) SA 593
(SCA) at para 18. See also,
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA) at para 12.
[36]
KAA-591, appendix 8, p 24 (applicable
to both licensed operators and initial license trainees) provides
for the suspension of
operators. KAA-591, appendix 1, p 10
(applicable to licensed operators) does likewise. The suspension of
initial license trainees
in the circumstances discussed here is not
irreconcilable with this.
[37]
This is known as the principle of
reciprocity and the
exceptio
non adimpleti contractus
.
[38]
This being apparent from para 76 of
the award.
[39]
Not September / October 2013.