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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR2594/2013

In the matter between:

MICHAEL MABASA                                                                                                   Applicant

and

COMMISION FOR CONCILIATION,

MEDIATION AND ARBITRATION                                                                 First Respondent

JLE PIENAAR N.O                                                                                   Second Respondent

PASSENGER RAIL OF SOUT AFRICA                                                       Third Respondent

Heard: 4 May 2016

Delivered: 4 May 2016

Edited: 27 May 2016

JUDGMENT

CELE, J

[1] The application before me is one brought in terms of section 145(2) of the Labour Relations Act, 66 of 1995, hereafter referred to as the Act.

[2] The applicant seeks to be granted an order in the following terms:

‘1.        The application dated 31 October 2013, issued by the Commission for Conciliation Mediation and Arbitration under case number GAJB20389/13 be reviewed and set aside.

2.         That the matter be referred back to the 1st Respondent for a new hearing before another Commissioner, other than the 2nd Respondent.

3.         The costs of this application be paid by the respondent.

4.         Further and alternative relief as the court may deem proper or fit.’

[3] The application has been opposed by the Third Respondent in whose favour the award was issued. The Third Respondent is erstwhile employer of the applicant.

[4] The applicant was in the employ of the Third Respondent as already alluded to. At the times material to this matter, he was a train driver. He was employed as far back as 1 August 2007. An incident took place on 6 November 2012. What happened here is that he was operating the train, what he had to do was to take the two heads of the train and couple them or join them to the coaches, there were ten coaches that he had to join and then he had to take these empty coaches and transport them to a particular place.

[5] The heads were two diesel engines. He left Dunswart yard next to Wictra Holdings. He was en route to Braamfontein. While he was at East Rand station, that is about 6 kilometres from the Wictra yard, his train derailed by dividing into two. The rear portion of the train collided with the front portion. At the time of the derailment, the applicant was travelling together with the train assistant and the yard official because they were both with him on the head.

[6] He was then suspended from duty. The matter was investigated by a team that immediately came to the scene, soon after this incident, the team comprised of  Mr Smith, Mr Ramphaka and Mr Kotze. Mr Smith was a carriage and wagon supervisor who attended that incident. There was also Mr T Rampaka, a section manager at Springs and a supervisor of drivers and guards of trains. There was also as I have indicated, a Mr Kotze.

[7] The applicant was then charged with five acts of misconduct. They turn to be interlinked. They are the subject matter of page 31 of the pleadings bundle. I will just read the second and third counts as the others follow from that. They read thus:

‘1         In that you, in your capacity as the train driver, stationed at Braamfontein on 6 November 2012, while working train 2268 at approximately 16:10 failed to do a continuous vacuum brake at  Dunswart. Failing to do so, resulted in a derailment at East Rand where your train divided after which the rear portion of the load collided with the front portion when you were stopped by security guard at East Rand.

2          Gross Misconduct, that is damage to property in that in your capacity as the train driver stationed at Braamfontein on 6 November 2012, also working on train 2268, at approximately 16:13 caused extensive damage to Metro and Transnet freight rail property, when your train derailed at East Rand, when it parted load after which the rear portion of the load collided with the front portion, when you were stopped by the security guards at East Rand.’

[8] The first count was one of gross misconduct/negligence to test for continuous vacuum brake. They all relate to one incident that happened.

[9] The Commissioner who assessed this application, being the second respondent, found that there was evidence favouring the version of the Third Respondent and he rejected the evidence of the Applicant and in so doing, he found that the dismissal was substantially and procedurally fair.

[10] The chief findings of the Commissioner are:

‘39       The derailment occurred because the coaches had become uncoupled. The main issue to be decided is why the couches became uncoupled and who is responsible.  The applicant claimed that it is not his responsibility, but that it is the responsibility of the assistant driver and the yard official. The yard official has to do the coupling and check the vacuum pressure, but it is also the duty of the train driver, as a captain of the train as it was said to make sure that this is done by checking the vacuum gauge.

40        There was much debate about whether the applicant had done the continuous vacuum brake efficiency test and whether he was obliged to do so, to the extent even that it was part of the applicant’s version that the brake efficiency test had to be done not when leaving the yard, but only after having travelled for 15 minutes. And the applicant denied in evidence, that it was his responsibility to do the continuous vacuum brake efficiency test, claiming that it was the responsibility of the yard official and in his absence the responsibility of the train assistant.

42        It is difficult to understand why so much emphasis was put by the applicant on denying that it was his responsibility to do the continuous vacuum brake test, and on the denial that he had to do the brake efficiency test, while leaving the yard, when he claimed the evidence that he did continuous vacuum brake efficiency test and did apply his brakes when he left the yard, and his evidence that he complied with his obligations in terms of this test is rejected. The respondent’s evidence that the applicant was required to do the two tests and that he did not do them, is accepted.”

43        On the assumption that the applicant did the two tests as required, the further issue that arises, is why the coaches became uncoupled.   The applicant’s evidence is that the bypass and the gravity locks were not of a required standard and Mr Mohone the maintenance fitter, stated that the coaches would become uncoupled when on a bumpy road the gravity lock could lift up, if it was not inserted properly. Mr Mohone did not inspect the train at any stage and there is no evidence that the mainline to be seen or the derailment is bumpy and the suggestions by the applicant and Mohone is mere speculation.   Seen in the light of the positive evidence presented by the respondent in respect of the force of the derailment, the applicant claimed that it could not have detected a drop in the vacuum after he had entered the main line.  But Mr Kotze evidence it was not contested and that is accepted, makes it clear that it is the driver’s duty to constantly observe the gauge.  If the applicant had looked at the vacuum gauge as he was obliged to do so after he entered the main line, he would have realised that there was no vacuum and that the train had divided in two, allowing him to take preventative action.

44        The applicant’s failure to do the continuous vacuum brake and brake efficiency test and/or to observe the vacuum gauge after he entered the main line caused the derailment as claimed in allegations 1 and 2. The derailment resulted in the damage and endangered lives as claimed in allegation 3 and 5.  No evidence was given or documentation produced in respect of the train delays and cancellation referred to in allegation 4.’

[11] I have indicated that the Commissioner found that the dismissal was substantively fair.

[12] The applicant approached this court and attacked the award on the basis that the Commissioner misdirected himself by failing to properly apply his mind to the evidential material that was before him.

[13] Essentially, what the applicant is saying is that it was not his duty to create this vacuum and because there were two persons that were seized with this duty and he was clearly referring to the shunter and the assistant driver.

[14] The policy of the employer makes it clear from the documents filed before this court that there is a separation of duties. There is a duty that is to be performed by the shunter in his absence or her absence, an assistant driver’s duties and there are separate for the driver. I look at page 21, marked MM2.  Paragraph 10.6.

‘Test for continuous vacuum brake. Prior to the departure of the metro train from a place where the composition of the train is altered the yard official must perform the task for continuous vacuum brake as prescribed. 

(i)         Pull the vacuum pipe at the rear of the last vehicle of the metro train off the dummy and then ensure by looking at the brake block that the brakes of the vehicle apply. 

(ii)        Replace the vacuum pipe on the dummy and ensure by looking at the brake block that the brake released again.’

Then I go to paragraph 10.1.9.5.1 and 5.2.

‘5.1      As soon as practicable after the departure of the train from the place where the train was prepared or from a place where the control of the train was taken over by another train driver, the train driver must test the vacuum brake of the train by making a brake application and then he or she must ensure that it functions correctly and that there is sufficient brake power for the road ahead.  

1.9.5.2 The train driver must continuously observe the train pipe vacuum dial, any reduction in the train pipe vacuum without a brake application being made, or any problem with keeping a brake application constant or any problem to create vacuum after a brake application, must receive immediately attention, unless it can be established without any doubt that the train has not derailed or parted and that no attempt is being made to  bring the train to a standstill with a brake application from the rear, the train must immediately be brought to a standstill to investigate this possibility.   Should he or she be certain that the train is complete and running safely and there is no possibility of any brake application from the rear, a stop must be made as soon as the first suitable place and the cause of the vacuum problem investigated.

1.9.5.3 The train driver of the train should not rely upon the efficiency of any vacuum brake application for longer than 15 minutes at a time, without the vacuum brake fully created. Train handling must be so planned and executed as to permit of the precautions being taken and in the case of stationary trains on gradient, train hand brakes must be applied where and when necessary.’

[15] The employer led evidence of various witnesses including Mr Smith, Mr Fourie and other witnesses. Essentially, what the Commissioner had then to decide was whether the creation of this vacuum from one couch to another to pull the other couch was the responsibility of the applicant. It is clear from the evidence that before this train can set off, the shunter or an assistant driver to do certain things at the back to ensure that all parts are properly joined and once that is done, to ensure that the vacuum is created so that there would be pressure from one couch to another pulling the other properly. This should have been done.

[16] According to the evidence of Smith and his colleague, Kotze, when they went on the scene and inspected what had happened, there was no evidence of a vacuum which showed that it had not been properly created from the very beginning.

[17] If there was enough vacuum and the train uncoupled, they say it would go to an automatic stop. Now they are the experts. They knew better about this. This version as the Commissioner indicated stood unchallenged throughout the evidence of Mr Smith and Mr Kotze because they tendered to say more or less the same thing.

[18] They even went on to say that he spoke about the first things being done, that is Mr Kotze that showed again that the proper testing has not been done from the very beginning.

[19] Nowhere in the evidence of the applicant, does the applicant seek to suggest that he had witnessed the shunter assisting him and doing what was necessary to be done. In his evidence, nowhere does he say that he had received the signal that all was well and that the reading in front of him supported the report that he received from the shunter, who would have been at the back of the train and doing what was necessary.

[20] All what we have is that the shunter and another person were together with him. It is not clear at what stage they had joined him. The applicant did submit a written statement explaining what had happened and also a colleague of his, assistant driver also gave a statement but he did not testify in the internal disciplinary hearing.

[21] From this statement, he does suggest that there was a problem because there was no vacuum, he went to assist, he does not automatically say or directly say that the vacuum was created. He merely says once he had assisted, then they decided to go. That leaves one to wonder what he really was alluding to. Clearly, from the very beginning, there was a problem of the vacuum. That is why he testified in that fashion.

[22] It is not clear from the evidence of the Applicant in answering to the case made by the Third Respondent that before he took off, the vacuum had been properly created, that the train could properly apply its brakes.

[23] He does mention that he did what he was supposed to do in the constant checking of the brakes but the evidence that was submitted by the witnesses of the respondent suggests to the contrary.

[24] In as much as I can hear Mr Shongwe suggesting that there was repair done on the couches but one never knows that there might be mechanical failure ascribable to what was happening and a number of things are possible in life but we talk of the probabilities.

[25] In my view, the Commissioner properly assessed the evidentiary material that was put before him and he succeeded in discharging the obligations of a Commissioner as he was supposed to do. I have looked at the evidence and I do find that he had enough material on the basis of which he could reject the evidence of the applicant.

[26] I do not find that the applicant had been able to prove any defect as defined in section 145(2) of the Act, as supplemented by the jurisprudence.

[27] In other words, I am unable to find that the Commissioner failed to conduct a proper inquiry into this matter. Clearly, the applicant had an obligation to make sure that the shunter and those that would assist him did their obligation even before he took off. It was his duty to certify that that had been done. It does not appear that he had done so.

[28] In my view, the Commissioner issued an award that is in the circumstances reasonable.

[29] The application is dismissed and no costs order is made.

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Cele, J

Judge of the Labour Court of South Africa

           

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