Klass Looch Associates

Employer OHS Champion since 1986 

BGWU obo Mababe / LAPACE Construction (Pty) Ltd [2010]   

Key Words

Labour Law – Dismissal – Substantive fairness – Negligence – Employee using dangerous equipment and breaching workplace safety rules – Dismissal fair

Mini Summary

The applicant employee was dismissed for using an unsafe welding torch. He claimed that the torch did not belong to him, and that the respondent was obliged to ensure that equipment issued to its employees was safe. The respondent contended that the employee had repeatedly breached safety rules and had persistently been negligent, and could have been dismissed long before.

The commissioner found that the employee had indeed been negligent on this and several previous occasions and that his record of similar infractions had not been seriously challenged. The employee was an experienced and trained welder, and must have been aware of the danger the equipment posed to himself and to his colleagues. His record indicated that he had little or no regard to the respondent's safety rules.

Award

Details of hearing and representation

The applicant filed a referral for conciliation on 5 August 2009. The dispute had been scheduled for a conciliation hearing on 1 September 2009, at which sitting both parties had been in attendance. There being no resolution of the dispute the appointed commissioner issued a certificate of outcome declaring that the dispute could not be resolved. The applicant party elected to proceed to arbitration by attaching a signature to the relevant certificate of outcome. The arbitration hearing was scheduled for 24 November 2009 and both parties were in attendance. A bundle of documents was handed up and admitted. There being no resolution, a narrowing of issues had been engaged in with the parties and the matter proceeded to be heard in arbitration. Handwritten notes are supported by the electronic recording.

The issue to be decided

Given that the applicant de facto conceded the incident/misconduct in question (admitted guilt) and acknowledged his competence to do the work as trained the only issue to determine was whether or not the sanction of dismissal was a reasonable response to an operational risk.

Preliminary issues

There was no objection to the jurisdiction of the council to arbitrate this dispute of unfair dismissal.

Summary of evidence

The respondent submitted and argued with reference to the documents that the applicant had a history of unacceptable behaviour related to negligence and or safety related conduct and had been disciplined on a progressive and graduated basis without a visible change in behaviour by the applicant and at the time of the commissioning of this offence had been on a valid written final warning. It was argued that the employer had been lenient towards the applicant on a previous breach, which should have attracted a summary dismissible on a first offence but that the sanction had been converted to a final written warning, in the hope that the applicant would show a significant change in behaviour. The employer argued that the aggravating circumstances outweighed any mitigation as there was a discernible pattern of breaches related to safety and corresponding disciplinary action having been instituted against the applicant.

The employer submitted that the applicant in failing to protect or institute precautionary measures whilst using the gas cutting equipment placed himself and other employees/individuals at risk of injury or fatal accident with a corresponding potential for severe property damage. The employer submitted that the incident had occurred whilst the applicant had been providing a service to a client and on the client's premises. This exacerbated the gravity of the breach of safety.

Further, the employer argued on the basis of the training records in the bundle that the applicant had been deemed competent in his position and suitably qualified to use the gas cutting equipment, a function which the applicant had undertaken for many years. The employer argued that despite the applicant’s training on 21 July 2009 the applicant totally disregarded all the training and safety best practices by simply switching the gas cutting torch off and then re-igniting it after a flame-back had occurred due to a leak.

It was submitted that the applicant had failed to take any steps to ensure that the gas cutting torch could have been used in a safe manner and or failed to either make the necessary on-the-job repairs and or bring the fault to the attention of the employer, but persisted in using the cutting torch knowing there had been a leak.

The employer requested that the sanction of dismissal under the circumstances described be upheld as a reasonable response to an operational risk. It was submitted that the applicant had acted in a manner best described as grossly negligent. The employer further argued that there was an inherent responsibility and duty placed upon the employer to ensure that all employees and the client were protected from repeated offences of misconduct with a safety related breach.

The applicant’s representative argued and submitted that the applicant had been employed in 2006 until his dismissal in 2009 and was remunerated on an hourly rate of R63,63. The applicant had been called to a disciplinary enquiry convened on 27 July 2009 into allegations of misconduct related to an incident which had occurred on 21 July 2009. The applicant’s representative submitted that the applicant had been wrongly charged.

It was argued that although the applicant had used the gas cutting torch on the day in question the equipment was not the applicant's but belonged to another employee, namely, Khoza. It was submitted that the employer had a responsibility to ensure that employees were not issued or worked with faulty equipment and when an employee worked with faulty equipment they should in effect not be charged for misconduct.

The applicant's representative argued that the applicant's previous final written warning should not be held against the applicant when the offences where not the same. The relief requested was for the applicant to be re-instated.

The applicant's representative argued further, that the incident did not warrant a sanction of dismissal.

Analysis of evidence and argument

The incident was common cause and not strongly disputed.

The applicant admitted that he had been using the cutting torch and was trained and found competent. Equally the applicant's previous disciplinary record was not strongly placed in dispute and de facto grudgingly conceded by the applicant's representative.

The employer has placed a strong argument in relation to the applicant's experience, previous disciplinary record and pattern of unacceptable behaviour that when all this is assessed against the gravity of the safety breach which had a high potential for serious injury or property damage or even a potential of a fatal accident must sway in favour of the employer. Negligence can be defined as an act or omission which causes a serious injury, property damage or a fatality or has the potential to cause a serious injury, accident, property damage and or fatality. Safety is a behavioural issue and a frame of mind not a mechanistic process like switching a light on or off.

The applicant’s previous disciplinary record is not indicative of an employee who accepted corrective action or showed a change in behaviour. The applicant by not ensuring that the equipment was safe to use failed in his duty to protect other employees, the client and the best interests of the employer. The applicant had been trained, experienced and must have known of the inherent dangers associated with working with gas cutting equipment but despite all this deliberately re-ignited the torch after experiencing a flame-back without regard for the safety of himself and/or other employees. The applicant's disciplinary record did not paint a picture of an employee who desired to work in the best interests of safety. Employers must be entitled to demand the highest degree of attention to safety whilst employees are at work and an employee who continues to work contrary to a culture of safe working practices, places himself, other employees and the company in a position of risk.

Award

The sanction of dismissal has not been shown to be indefensible.