Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J1664/00
2002.05.31
In the matter between
TRANSNET LTD t/a METRORAIL Applicant
and
T HEFER Respondent
__________________________________________________________
J U D G M E N T
__________________________________________________________
NGCAMU, A.J: This is a review application in which the
applicant seeks the review and setting aside of an arbitration
award of the first respondent. The second respondent was
dismissed by the applicant after having been found guilty of
gross neglect of duty during the disciplinary hearing. The
respondent referred the dispute for arbitration. After the
conclusion of the arbitration hearing the arbitrator ordered the
reinstatement of the second respondent. It is this award that
the applicant seeks to review.
The second respondent (whom I shall refer to as "the
employee") was employed by the applicant as a train driver.
On 15 October 1999 an accident occurred involving a train
driven by the employee. Four people died in the said accident
and nineteen were injured. The respondent was charged with
the following offence:
"Gross neglect of duty in that on 15 October 1999, at
approximately 15h56, you drove train number 9442 recklessly
and negligently, without due regard to the property of
Metrorail and the safety of its passengers, in that: you passed
signal NDC806T at danger on the up-slow line between Crown
and New Canada stations. You exceeded section 1 in speed
and could not control the said train to stop within a safe
distance. As a result of this serious neglect of duty you caused
a collision which led to damage to property, loss of life and
injuries."
A disciplinary hearing was held. The respondent was
found guilty and he was dismissed. The respondent referred
this matter to the Transnet Bargaining Council. The arbitrator
came to the following conclusion:
"I do not believe that the company proved gross neglect of
duty on the part of the grievant. His dismissal on 11 January
2000 for this reason was accordingly unfair."
It was common cause that shortly before the accident
the train was travelling at an excessive speed, and that the
employee passed the signal "danger". The award has been
attacked on various grounds. Second and third respondents
oppose this application.
Mr Kennedy submitted, on behalf of the applicant, that
the applicant is relying on misconduct and particularity on the
part of the arbitrator. The applicant relies on the technical data
obtained from the "black boxes" regarding the speed and
application of brakes made by the employee. It does not
appear from the arbitrator's notes that this scientific evidence
was common cause. The applicant did not lead evidence of a
scientific nature. The data analysis was handed to the
commissioner. There was no agreement as to the status of this
document. There is no evidence that the employee has
admitted the contents of this report. In the absence of the
admission of the report by the employee the applicant had to
lead evidence on the data analysis. The applicant failed to do
this. The report was accordingly not proved before the
commissioner.
In the circumstances I am of the view that the applicant
cannot rely on the data analysis which has not been proved.
The court is not in possession of the complete record in order
to assess the evidence given by the witnesses. It is not open to
the applicant to attack the commissioner on his findings on
facts, in the absence of a complete transcript record. The
applicant is required to file the record of the proceedings in
terms of rule 7A(6) of the rules of this court. The court is
entitled to dismiss the review in the absence of the record.
In JDG Trading (Pty) Ltd t/a Russells v Whitcher NO and
Others (2001) 22 ILJ 648 (LAC), at 651F-H, para.13, the court
stated:
"In the absence of the transcribed record of the proceedings
before the first respondent the court a quo was in no position
to adjudicate properly on the application before it, and ought
accordingly to have dismissed it."
The applicant only transcribed the written notes of the
arbitrator, which in some instances is abbreviated. This does
not give a complete picture of the evidence that was given.
I am of the view that the court is entitled to dismiss the
application on this point alone.
The parties made submissions on the evidence as
recorded in the arbitrator's handwritten notes. There was no
application for amendment of the grounds of review, to allege
that the arbitrator committed a misconduct or irregularity in
not keeping the record of the proceedings. If there was such
an application I would have approached this matter in a
different manner. In the event that I am not entitled to dismiss
this case at this point, I then venture to proceed and consider
other grounds raised by the applicant.
The employee testified that he dozed off. The arbitrator
accepted the employee's version. The applicant's contention is
that this is not possible because the train has a "dead man's
handle", which has to be depressed all the time to keep the
train in motion. The applicant contends that if the train driver
falls asleep the "dead man's handle" will pop up and stop the
train.
The applicant also relies on the fact that the employee
told a colleague, Mr Neethling, and a physician, that he did not
see the red light because he had been blinded by the sun. The
employee explained that he was confused and shocked, and
could have said that he was blinded by the sun. He however
could not recall what he had said. The employee further
testified that he did not want to incriminate himself. The
arbitrator considered this and found that this cannot be held
against the employee.
The employee further testified that the spring of the
"dead man's handle", for the train in question, was loose, and
that you could engage the "dead man's handle" while asleep.
There was no evidence to rebut this from the applicant.
Mr van Dyk admitted that the "dead man's handle" loses
tension with age. His submission goes to the heart of the
applicant's contention, that the "dead man's handle" requires
pressure all the time. It confirms the evidence of Dr Bentley,
when she testified that it was possible to perform any
automatic actions while asleep.
The arbitrator applied his mind to the operation of the
"dead man's handle" and concluded that it was possible to
press down the handle in a state of sleep. The arbitrator may
have made a mistake on the findings of fact on this, but this
does not make the award reviewable. This may be
unsatisfactory to the applicant. Not all the awards will be
satisfactory. This was confirmed in Shoprite Checkers (Pty) Ltd
v Ramdaw NO and Others (2001) 9 BLLR 1011 (LAC) at 1041,
para.101:
"In my view it is within the contemplation of the dispute
resolution system prescribed by the Act that there will be
arbitration awards which are unsatisfactory in many respects,
but nevertheless must be allowed to stand because they are
not so unsatisfactory as to fall foul of the grounds of review.
Without such contemplation the Act's objective of the
expeditious resolution of disputes would have no hope of being
achieved. In my view the first respondent's award cannot be
said to be unjustified when regard is had to all the
circumstances of this case and the material that was before
him."
This is a case where the factual findings of the arbitrator
cannot be disturbed. In my view in the absence of evidence
rebutting that of the employee, regarding the handle, the
arbitrator's findings cannot be attacked. It was upon the
applicant to bring evidence in rebuttal. The applicant attacks
the arbitrator for finding that the applicant had failed to prove
gross negligence or any neglect of duty on the part of the
employee after finding that the witnesses for the applicant
were excellent.
It is significant to point out that the applicant does not
submit that it proved its case against the employee. The
applicant submitted that Dr Bentley conceded that she was
unable to say whether the operation of the "dead man's
handle" could be performed by a driver in his sleep. Dr
Bentley's evidence was that it was very likely that the
employee would fall asleep, when driving, in the light of the
number of hours the employee was working. It was not
disputed that the employee worked a number of hours without
sleep. It is therefore logical that such a driver would fall
asleep, and one does not need an expert to prove this.
The applicant submitted that Dr Bentley's evidence
should not have been accepted because she did not give
evidence to the effect that the employee fell asleep. To my
mind this submission misses the point. The onus was on the
applicant to prove that the employee committed gross neglect
of duty in that he drove recklessly and negligently. The
employee raised a defence that he dozed off, and the spring of
the handle was loose. The applicant has failed to rebut this
evidence. The applicant had to prove that the employee's
version was false.
The arbitrator's findings can be justified on the basis that
the applicant failed to prove its case on the basis that the
employee was exhausted as a result of the number of hours
worked, which was not disputed.
I am not satisfied, on the arbitrator's notes, that
applicant made any attempt to prove gross neglect of duty,
which was the gist of the charge. It was not even put to the
employee under cross-examination that he neglected his
duties. None of the applicant's witnesses also suggested this
under oath.
The applicant submitted that the arbitrator committed an
irregularity in not holding an inspection in loco. It is difficult to
accept the applicant's version on this point. The arbitrator has
filed an affidavit explaining that a suggestion of an inspection
in loco was made before the opening statement. There is no
evidence before me to indicate that the request was made
later during the proceedings.
The applicant's problem on this point is caused by the
fact that there is no record. I have no reason to reject the
arbitrator's explanation, that he did not refuse to permit an
inspection in loco. I therefore cannot find any irregularity.
There was no proof of a refusal to permit the inspection.
The arbitrator further explained that an inspection in
loco would have had no bearing on his findings. I cannot
criticise the arbitrator for this. He exercised his discretion
based on evidence before him. The applicant cannot criticise
the arbitrator for not allowing an inspection in loco when it
cannot be proved that a request was made and refused. It is
not sufficient to make a suggestion at the beginning of the
arbitration and hope that the arbitrator will exercise his
discretion. If the applicant felt that an inspection in loco was
vital, a request should have been made.
The applicant has failed to show that it has not been
afforded a fair trial as a result of the refusal by the arbitrator
to permit an inspection in loco. (See Gold Fields Investments
Ltd v City Council of Johannesburg and Another 1938 TPD
551).
Once it is accepted that the spring of the "dead man's
handle" wears down with age, and that different locomotives
have different tensions, it would not have assisted the
arbitrator to go for an inspection in loco of any handle other
than that of the train driven by the employee. There is no
evidence that the handle to be inspected was that of the train
that was involved in the collision.
In the light of this I cannot find any reason for interfering
with the arbitrator's award.
I have indicated that I do not have the transcript record
of the arbitration proceedings. I am unable to assess fully the
evidence that was presented to the arbitrator to be able to
make an informed decision. This is compounded by the fact
that there is a dispute of fact raised by the parties in their
affidavits.
In the circumstances, where there is a dispute of fact, I
have to accept the respondent's version. (See Plascon-Evans
Paints v Van Riebeeck Paints 1984 (3) SA 623 (A); County Fair
v CCMA and Others (1998) BLLR 577 (LC), at para.7D; and
Mondicraft (Pty) Ltd v PPWAWU and Others (1999) 10 BLLR
1057 (LC), at 1059B-D).
On the evidence as recorded in the handwritten notes,
and the arbitrator's award, I am not persuaded that the
arbitrator committed any gross misconduct or irregularity in
the proceedings. It therefore follows that the award in this
matter cannot be disturbed.
O R D E R
In the circumstances the following order is made:
(a) The application for review is dismissed.
(b) The dismissal of the second respondent was unfair.
(c) The applicant is ordered to pay the respondent's costs.
ON BEHALF OF THE APPLICANT: ADV KENNEDY
ON BEHALF OF THE RESPONDENT: ADV VAN DYK