DETWAU obo Mqaqambiso v BP Southern African (Pty) Ltd and Others (C68/2020) [2021] ZALCCT 71; (2022) 43 ILJ 157 (LC) (8 October 2021)

THE LABOUR COURT OF SOUTH AFRICA,

HELD AT CAPE TOWN

Case no: C68/2020

Not reportable

In the matter between:

DETAWU obo NOMFUNDISO MQAQAMBISO Applicant

and

BP SOUTHERN AFRICA PTY (LTD) First

Respondent

BRAVOPIX 525 CC Second

Respondent

NATIONAL BARGAINING COUNCIL FOR THE

CHEMICAL INDUSTRY (NBCCI) Third

Respondent

BONISWA MBOVANE N.O. Fourth

Respondent

Date of Hearing: 29 June 2021

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ representatives by email, publication on the Labour

Court website and released to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 8 October 2021.

Summary:

Review:

Test for review restated – The Arbitrator's decision must be a finding that a reasonable decision maker could not make for it to be reviewable.

Is the decision arrived at by the arbitrator is one that falls within a band of decisions to which a reasonable decision-maker could come on the available material?

Whether dismissal was appropriate:

The arbitrator should consider the totality of the circumstances, including the importance of the rule, the reason why the employer

imposed a sanction of dismissal, the basis of the employee's challenge to the dismissal, the harm caused by the employee's conduct, whether additional training may result in the employee not repeating the misconduct, the effects of the dismissal on the employee and his or her long-service record.

Petroleum Industry:

Dangerous work environment. Breach of rules could lead to fatality and damage to environment. Actual harm caused by breach of rule less important in determining appropriateness of dismissal.

JUDGMENT

JORGE AJ

Introduction

[1] The Applicant has brought an application to review and set aside the award of the Fourth Respondent ("the Arbitrator") issued on 8 January 2020 under the auspices of the Third Respondent. The application is opposed by the First Respondent.

Background

[2] The First Respondent's business involves the distribution of petroleum products.

[3] The volatile and flammable nature of these products creates an extremely dangerous working environment for, inter alia, the Bulk Vehicle Operators ("BVOs") who are responsible for the transportation of petroleum and other road users. An accident that results in leakage of the product can also cause great damage to the environment and affect the health of the surrounding communities.

[4] The vehicles used to convey the petroleum products are large vehicles, weighing up to 40 tons. A BVO transports approximately 900 000 litres of fuel per day. These are not ordinary vehicles on the road.

[5] BVOs are required to hold a code EC licence and a Professional Driver Permit to convey dangerous goods and receive special training on how to operate the vehicle.

[6] The First Respondent has a highly regulated workplace with specific operating procedures in place to minimise the risks involved in the conveyance of fuel.

[7] The First Respondent also makes use of Drivecams in its vehicles. The Drivecams are cameras placed in the cab of the vehicle. The Drivecams are triggered when an incident, such as sudden braking, places undue pressure on the vehicle. The Drivecams will provide the First Respondent with a video clip 8 seconds before the incident that triggered the Drivecam and 4 seconds thereafter.

[8] The Applicant's services were procured by the First Respondent through the Second Respondent, a Temporary Employment Service. She rendered services to the First Respondent from about August 2015 to 28 February 2016.

[9] In January 2016 the First Respondent began a process by which it would "absorb" all the Second Respondent's BVOs into its employ.

[10] The First Respondent however did not take the Applicant into its employ. It became aware of two instances of misconduct committed by the Applicant:

10.1 In November 2015, in the 8 seconds before the incident, the Applicant is observed approaching an intersection at 51km/h. The Applicant has right of way. There is a VW Golf visible in front of her. The Applicant reduces her speed to 48 km/h before increasing it 50 km/h. The VW Golf enters the Applicant's lane in front of her. The Applicant presses her hooter and is forced to brake harshly to avoid colliding with the VW Golf. This triggers the DriveCam. The vehicle's speed is reduced to 28 km/h 2 seconds after the incident and to 23 km/h 2.75 seconds after the incident; and

10.2 On 25 January 2016, in the 8 seconds before the incident, the Applicant is observed approaching a green traffic light at 53km/h. The Applicant slows the vehicle down to 45 km/h. A pedestrian is visible standing on the white lines between the lanes. At 0.75 seconds before the incident the pedestrian steps into the path of the Applicant's vehicle. The Applicant while driving at 43km/h is forced to brake harshly to avoid colliding with the pedestrian. This triggers the DriveCam. The vehicle's speed is reduced to 34 km/h 1.5 seconds after the incident and to 31 km/h 2.25 seconds after the incident.

[11] In February 2016 the First Respondent requested that the Applicant make representations as to why she should be "absorbed" into its employ in light of the two incidents referred to above.

[12] The First Respondent considered the incidents serious enough to warrant the termination of the Applicant's services.

The Arbitration Award

[13] The Arbitrator in her analysis of the evidence found that the dismissal was procedurally unfair but substantively fair.

[14] In considering substantive unfairness the Arbitrator considered the provisions of item 7 of the Code of Good Practice: Dismissal which requires that a person who is determining whether a dismissal for misconduct is unfair should consider:

14.1 whether or not the employee contravened a standard or rule regulating conduct in, or of relevance to, the workplace; and

14.2 if a rule or standard was contravened, whether or not:

· the rule was a valid or reasonable rule or standard;

· the employee was aware, or could reasonably be expected to have been aware of the rule or standard;

· whether the rule or standard was consistently applied by the employer; and

· dismissal was an appropriate sanction for the contravention of the rule or

standard.

[15] The Arbitrator considered the rule (in this case driving a bulk tanker at no more than 40km/h in a built up area). The First Respondent's rule is more stringent than the National Road Traffic Act which allows for speeds of up to 60km/h in this area. The First Respondent believes that the National Road Traffic Act limitations are set with smaller vehicles in mind and would not be appropriate to bulk vehicles transporting dangerous products like petroleum products.

[16] She found that the rule was valid and reasonable. The Applicant in both incidents had breached the rule by exceeding the speed limit by 10km/h or more in a built up area.

[17] The Arbitrator found that the Applicant was aware of the rule. She also found, after viewing the footage of the incidents, that had the Applicant been observant, alert and adhered to the principles of defensive driving as she had been taught, that the incidents would have been avoided.

[18] The Arbitrator considered the question of consistent application of the rule. She found that there was no inconsistency as the First Respondent disciplined employees for road offences but that the sanction for each breach was dependant on the gravity of the offence.

[19] The Arbitrator then considered whether dismissal was appropriate. In doing so she applied the test set out in Sidumo[1] which requires that the arbitrator in determining whether dismissal is appropriate should consider the totality of the circumstances,

including the importance of the rule, the reason why the employer imposed a sanction of dismissal, the basis of the employee's

challenge to the dismissal, the harm caused by the employee's conduct, whether additional training may result in the employee not

repeating the misconduct, the effects of the dismissal on the employee and his or her long-service record.

[20] The Arbitrator found that the rule was important. Its purpose was to safeguard the employee, the environment and other road users. The Applicant's challenge to the dismissal had been found wanting and the First Respondent could not have someone in its employ that commits such misconduct. Finally she looked at whether the Applicant's misconduct could be remedied by re-training. She was not convinced that the Applicant's conduct could be remedied. The Applicant had not shown any remorse. She had opted to ignore the First Respondent's rule and contended that she was correct in doing so.

[21] The Arbitrator declined to interfere with the sanction of dismissal.

Test for review

[22] The test for review is well established. Essentially the test is a reasonableness test. The Arbitrator's decision must be a finding that a reasonable decision maker could not make for it to be reviewable.

[23] The proper application of the test on review, was summarised by the Supreme Court of Appeal in the Herholdt judgment[2]. For an award to be reviewable the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. Most importantly, a result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.

[24] In Gold Fields Mining South Africa (Pty) Ltd [3], the Labour Appeal Court pointed out that where a gross irregularity in the arbitration proceedings is alleged, the enquiry extends to whether the result was unreasonable, in particular, whether the decision arrived at by the arbitrator is one that falls within a band of decisions to which a reasonable decision-maker could come on the available material.

Grounds of review

[25] The Applicant has raised three broad grounds of review in her written Heads of Argument. Her broad grounds are presented under the following headings: "the Commissioner did not apply her mind on the material that was presented before her and failed to consider the evidence presented before her and thus arrived at an unreasonable conclusion which no other reasonable commissioner presented with the same material would have arrived at"; "The commissioner misconstrued the evidence before her and committed a gross misdirection of the enquiry"; and "Dismissal was not an appropriate sanction".

[26] In respect of the first broad review ground the Applicant persists with her contention that she did not breach the rule to not exceed 40km/h in a built up area as the rule was only implemented in 2016. Furthermore it is contended that the Applicant should have been issued with a Journey Risk Assessment ("JRA") which records the speeds at which a driver must drive. Finally, the Applicant seems to contend that the First Respondent could not identify that she was driving in a build up area as it could not identify where exactly where she was at the time of the incidents.

[27] Evidence was led before the Arbitrator by the First Respondent's Driver Trainer, Mr Pienaar that he had trained the Applicant. His evidence was that the Applicant had received, inter alia, roll over prevention training and advanced defensive driving training. Part of this was the ABC training (ABC being an acronym for Attitude, Back down and Clear space). In terms of the training drivers are required to practice an appropriate attitude, back down when there is any hazard on the road and to give themselves lots of clear space ahead of the truck so that they can anticipate any danger ahead and avoid it. This would allow the driver to take appropriate evasive action by having time to safely slow down or safely change direction.

[28] The Applicant had also received practical training. Drivers understood that they would have to adjust their speeds in built up areas as the speed limits and speed signs had been designed for smaller vehicles. His evidence was that the drivers had been trained to drive at not more than 40km/h in high built areas. The risk of a "roll over" was real. It was important to drive slow even with an empty vehicle as the vehicles centre of gravity was unstable and would pose a risk.

[29] Pienaar led evidence on the Drive Cam footage and explained in detail how the Applicant had failed to adhere to the defensive driver training she had received. In both instances she had driven dangerously and had placed herself and other road users at risk.

[30] Much was made by the Applicant's representative in argument about the rule which required the Applicant to drive at 40km/h in a built up area. Pienaar gave evidence around the Standard Operating Procedure relating to Bulk Vehicle Driving (SOP – 07).

[31] In terms of clause 4 of the SOP, under the heading "When Driving" a driver must "Adhere to the legal speed limits and ensure that the maximum speed of 80 kph is not exceeded on open roads and freeways, and 60kph on minor roads and in urban areas or 40kph where required."

[32] This clause in the SOP is consistent with Pienaar's evidence that the training provided to drivers is to drive no faster than 40km/h in built up areas.

[33] The Applicant argued that the SOP did not apply to her as it was issued after the two incidents had occurred. This contention is simply not supported by either the SOP document itself or Pienaar's evidence. It is clear from the SOP "procedure block", which is found at the foot of each page of the SOP, that the SOP was approved and released on 1 April 2015, which is before the dates of the two incidents in question. The document was scheduled for a review date of 31 March 2017. This date however is not relevant to the dispute. Furthermore, Pienaar is also recorded as the compiler of the SOP, which certainly provides credence to his testimony in this regard.

[34] The Applicant's argument that she was not issued with a JRA, which she says would have recorded the speed limits she was required to drive at, holds no water. It was never argued that the JRA should override the defensive driving training that the Applicant received or the SOP. Pienaar's evidence's was that the Applicant would have been issued with a JRA but even if she was not, the JRA could not take precedence over the principles of defensive driving or the driver training.

[35] The Applicant then also sought to rely on a contention that she was not driving in a built up area when the two incidents happened and that the rule not to drive more than 40 km/h therefore did not apply to her.

[36] Pienaar's evidence that the incidents happened in a built up area as there was a concentration of cars and people (and that there were in fact traffic lights to control the flow of vehicles) is in fact supported by the Applicant's own expert witness.

[37] Mr Ronald Pugin, an expert registered with the DITA as a driver trainer assessor and moderator, confirmed that the JRAs were used in the fuel and gas industry in the conveyance of goods as it involved the transportation of dangerous goods. Where there were hazards in an area he testified that drivers may be required to drive at 40km/h in that area.

[38] Under cross-examination Pugin conceded that the First Respondent was entitled to set its own traffic rules for its drivers, which may be more onerous than the normal road traffic rules. He also conceded that he knew that the First Respondent required that its drivers drive at no more than 40km/h in certain circumstances and that the drivers were then obliged to drive at that speed. Materially Pugin's unequivocal evidence was that the area where the two incidents happened were high-build areas.

[39] It is clear from an analysis of the evidence that the Arbitrator properly applied her mind to the evidence before her. Her finding that there was a rule in existence at the time of the two incidents that the Applicant drive at no more than 40km/h in a high-build area, that she was aware of, or should reasonably have been aware of the rule, and that she had breached the rule, is not a finding that a reasonable decision maker could not make.

[40] In the circumstances this ground of review must fail.

[41] In respect of the second broad review ground the Applicant seems to contend that the Arbitrator failed to properly consider that the allegation against the Applicant was not that she failed to take action but rather that she failed to take sufficient action. The argument seems to be that the Arbitrator was then bound only to determine whether the Applicant's conduct was reasonable in the circumstances and not to accept the "say so" of the First Respondent.

[42] The proper test for an arbitrator in considering substantive unfairness is set out item 7 of the Code of Good Practice: Dismissal. The arbitrator must, on a balance of probabilities, establish whether or not the employee contravened a standard or rule regulating conduct in, or of relevance to, the workplace. If so, was the rule was a valid or reasonable rule or standard and was the employee aware of, or could reasonably be expected to have been aware of the rule or standard.

[43] It is clear from her analysis of the evidence presented before her that the Arbitrator did exactly that. She recorded the versions of both parties and considered the DriveCam footage. She applied her mind to the versions and she weighed up the probabilities of the versions of both parties. Ultimately she rejected the Applicant's version that she was not aware of the rule as she had received the appropriate training and was or should have been aware of the rule.

[44] The Arbitrator then considered whether the rule or standard had been consistently applied by the First Respondent. In this regard she looked at the gravity of the offence committed by the Applicant and found that the First Respondent had not acted inconsistently. Finally, she dealt with whether dismissal was an appropriate sanction for the contravention of the rule or standard. This issue will be dealt with under the next ground of review.

[45] There is no merit to the argument that the commissioner misconstrued the evidence before her and committed a gross misdirection of the enquiry.

[46] In the circumstances this ground of review must fail.

[47] In respect of the third broad review ground the Applicant contends that the Arbitrator's finding that, if there was a breach of the rule, that dismissal was an appropriate sanction is reviewable, as she did not consider that the First Respondent's policy requires that corrective action be applied where "gaps" have been identified in a driver's driving. Furthermore, the Applicant caused no harm to the First Respondent as she took evasive action to avoid other road users who were in the wrong.

[48] The evidence of Pienaar before the Arbitrator is that there were no "gaps" in the Applicant's training or abilities. She knew wat she had to do. She did it very well when she was assessed and she was a very good driver. Pienaar's evidence as a trainer was that he would not tolerate the reckless behaviour displayed by the Applicant.

[49] The First Respondent's Transport Operations Manager, Mr Mangaliso's evidence is that dismissal was an appropriate sanction. He explained the gravity of the Applicant's misconduct, which could easily have resulted in a fatality, and how her breach of the rules was reckless.

[50] Certainly, this court is of the view that in the particular circumstances of this case, it is irrelevant that the Applicant had not in fact caused any harm. The First Respondent operates in a very dangerous environment. It is a workplace where non-compliance with the rules could lead to a fatality, damage to the environment and destruction to the surrounding communities. The First Respondent has in place rules that are designed to make the workplace as safe as possible and to avoid the potential of the circumstances described above from arising. The potential harm in the First Respondent's workplace cannot be compared to harm such as financial loss. These rules must be strictly observed by the First Respondent's employees. To not do so could have devastating results.

[51] The Applicant's own attitude did not help her. She showed no remorse during the arbitration. She insisted, even in the face of overwhelming evidence to the contrary, that the rule did not apply to her. This attitude would certainly lead to an irretrievable breakdown in the relationship of trust between her and the First Respondent.

[52] The Arbitrator considered all of these factors. She correctly applied the test as set out in Sidumo.

[53] There is no merit to this ground of review.

[54] In light of this court's findings above it is not necessary to consider whether reinstatement is the appropriate relief or whether remittal of the dispute to the Third Respondent is appropriate.

[55] In view of the above the following order is made:

Order

1. The review application is dismissed.

2. No order is made as to costs.

Jorge AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: MB

Matwa (DETAWU official)

For the First Respondent: L Salt (ENS Africa)

[1] Sidumo and another v Rustenburg Platinum Mines Ltd & another (2007) 28 ILJ 2405 (CC)

[2] Herholdt v Nedbank (2013) 11 BLLR 1074 (SCA)

[3] Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (Gold Fields) (2014)1 BLLR 20 (LAC)

[3] Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (Gold Fields)

(2014)1 BLLR 20 (LAC)