IN
THE INDUSTRIAL COURT OF SWAZILAND
HELD AT
MBABANE
CASE NO.
214/2002
In the matter
between:
SIBONGISENI
SIMELANE.....APPLICANT
And
SWAZILAND
RAILWAY.........RESPONDENT
CORAM:
NDERI NDUMA
PRESIDENT
JOSIAH
YENDE:MEMBER
NICHOLAS
MANANA: MEMBER
FOR APPLICANT:
M. SIMELANE
FOR RESPONDENT:
Z. JELE
JUDGEMENT-
15/02/05
The Applicant
was driving a train from Lavumisa to Matsapha. He was due to go via
Nsoko Railway Station en-route to Maloma siding to unload empty
carriages. Upon arrival at Nsoko he requested permission to shunt.
The discussion
between the Applicant (Sibongiseni) and the Train Controller
(Meshack) is well documented in the transcript and went on as
follows:
"Sibongiseni:
May I ask for permission to shunt on section Nsoko Bigbend.
Meshack:
Right you may
shunt, you may shunt and the key is there at Nsoko.
Time recorded at
this moment is 08.46.
At 09.21
Meshack: Calling
Sibongiseni, Sibongiseni - Sibongiseni come in for Mpaka.
Sibongiseni
speaking.
Meshack:Are you
not finished running around the load?
Sibongiseni:I am
shunting - still in the section (cut radio).
Meshack:Come on
again I cant hear you "over".
Sibongiseni: I
asked for permission to shunt in the section 'over' you don't want me
to go - (radio cutting again)........... I want to go to the siding
also.
Sibongiseni:
Meshack, Meshack, come in for Sibongiseni.
Meshack: Yes
Sibongiseni.
Sibongiseni: I
said I wanted the Section to go to the siding to park the trucks
only....... break.
At 9:27
Andreas: Driver
of Train 2800 at BigBend: (to the TCO) - Meshack
you said I will
cross train 2709 here at BigBend.
Meshack: (To
Andreas) just be on standby, just be standby ........... I
don't know
really what is going on there with Sibongiseni. He asked for
permission to shunt his load, I really wonder what takes him so long.
Just to change the locomotives to the rear. I don't know what is
going on here".
This is part of
the verbatim conversation between the Applicant and the
TrainController Meshack Magagula capturing the specific
circumstances that led to the dismissal of the Applicant.
The brief facts
captured in the dramatized form are that the Applicant whilst driving
Train No. 2709 entered the Nsoko - BigBend Section and traveled as
far as Maloma siding and returned to Nsoko without a written train
proceeding authority. This action occurred on the 7th
October 1999. Subsequently on the 11th October 1999, the
Applicant and his train assistant Samuel Bhembe were both suspended
from duty by Mr. V. T. Mamba the Assistant Director and an inquiry
was commissioned by the Chief Train Controller Mr. C. J. Dlamini into
the circumstances of the case.
Following the
Inquiry, a disciplinary hearing against the Applicant was directed by
Mr. S. Z. Ngubane Director Traffic on the 7th December
1999.
The Applicant
was charged with the offence of contravening "RTOS Regulations
2.3, 29.1 and 29.2 and the TWR 2 and 16."
The Applicant
was requested to respond to the charge in writing which he did in a
letter dated 13th December 1999.
Subsequently, a
notice to hold a full disciplinary hearing against the Applicant on
the charges aforesaid was issued on the 7th February 2002
by the Chief Executive Officer (C.E.O.) Railways.
The charge
remained the same but was framed as follows:
"Notice is
hereby given that a disciplinary hearing will be held to establish
the guilt or innocence of Mr. Sibongiseni Simelane PF 2044 who was
the driver of train 2709 operated to/from Maloma siding on the 7th
October 1999 in contravention of TWR 2 and 16 and RTOS Regulation
2.3, 29.2 and 29.2".
From the record
of the proceedings it was stated that the purpose of the disciplinary
hearing was to establish:
1. What the TWR
General Appendix and RTOS Regulations stipulate regarding the working
of Maloma siding and what the procedure is to occupy a section under
RTOS Instruction.
2. What
authority the driver of Train No. 2709 had to occupy the section and
for what purpose.
3. Whether the
train assistant knew what authority the driver had and for what
purpose.
4. Whether the
unauthorized movement posed an imminent danger to other trains that
were to occupy or had occupied the section.
5. What trains
working rules and regulations were violated by the train driver.
6. Whether radio
communication was clear at the time of message exchange.
7. What was
recorded when the exchange of messages took place.
The disciplinary
hearing was chaired by one Mr. H. P Loubser with Messrs Victor
IMgwenya and Musa Mkhonta as members. Ms. Joyce Zwane was the
Secretary and there was an observer from the union.
Witnesses called
to the hearing including Mr. Meshack Magagula, the Train Control
Officer (TCO) responsible at the time of the occurrence, Mr. Samuel
Bhembe, the train assistant to the Applicant, Mr. Mkhawuleni D.
Nhleko, the Loco Inspector/Rules Instructor, Mr. Lucky S. Dlamini the
Chief Train Controller and Mr. Kenneth Nkarnbule, a Loco Inspector.
The hearing
commenced on the 16th February 2000.
Recorded
statements of all the witnesses were availed to the court as part of
the disciplinary proceedings.
The disciplinary
tribunal after the deliberations found the following: •
1. The Board came to the
conclusion that the train driver Mr. Sibongiseni Simelane PF 2044 was
guilty of contravening the following:
1.1 RTOS 5.8- completion of
train orders
1.2 RTOS 29.1/29.2 Shunting
at Maloma siding
1.3 RTOS 2.3- driver's
authority to enter section.
1.4 RTOS 2 - safety
1.5 TWR 16 -
Obedience to regulations and instructions.
The court heard
the evidence of the Applicant first in this matter as is the practice
of the Industrial Court. This is inspite that the burden proper of
proving that the Applicant was dismissed lawfully, fairly and for a
reason permitted by Section 36 of the Employment Act No. 5 of 1980,
rests on the Respondent in terms of Section 42 (2) (a) and (b) of the
Act.
All that the
Applicant was required to show is that he was an employee protected
by Section 35 (2) of the Act. The Section provides that no employer
shall dismiss an employee unlawfully. Section 35 (1) on the other
hand lists categories of employees who are not protected under Part V
of the Act.
The Applicant
told the court that he was employed by the Respondent on the 7th
February 1991 as an assistant train driver and was in
continuous employ of the Respondent until the 7th April
2000. He had worked for the Respondent for more than nine (9) years.
He was thus not excluded from protection in terms of Section 35 (1)
of the Act.
Being a
protected employee, therefore, in terms of Section 35(2) the
Respondent could only dismiss him for a reason provided under Section
36 and upon concluding that it was fair to dismiss him taking all the
circumstances of the case into account.
Lengthy
testimony was adduced and a plethora of documentation was produced by
the parties in this matter.
Though the facts
appear complex to a person not directly involved in the Railway
transport industry, the pith of the matter boiled down to the
following simple facts:
1. It was common
cause that the Applicant on the 7 October 1999 drove train 2709 from
Nsoko train station to Maloma siding and back to Nsoko.
2. It is also
common cause that the Applicant did not obtain written authority from
the Train Controlling Officer (TCO) on duty before embarking on the
trip to Maloma and back.
3. It was common
cause that operation of trains was governed by Swaziland Railway,
control of transport by means of the Radio Train Order System
contained in Circular No. 1 issued on the 1st September
1991 by the Chief Executive Officer.
4. In particular
Regulations 29.1 and 29.2 governed operations of a train to and from
Maloma siding. The two state as follows:
"29.1 An
order must be issued to the driver to proceed to Maloma siding. Upon
arrival in the siding train order must be cancelled "trip
completed". Driver must assure TCO that siding switch points are
set and locked for the main line.
29.2 Driver must
not re-enter the main line between Nsoko and BigBend without a
completed train order and authority of the TCO".
It is
indisputable that the Applicant completely ignored regulations 29.1
and 29.2.
Instead he
informed the TCO that he wanted to shunt at Nsoko and thereafter
proceeded to Maloma siding. He received verbal authority over the
radio to shunt at Nsoko which he proceeded to do. He told the court
that he interpreted this authority to shunt at Nsoko to have included
authority to move to the Maloma siding because the TCO informed him
that he could take the key to the siding at Nsoko. The Applicant
presented himself as a well educated driver. Infact he told the court
that he believed that his superiors victimized him because he was
better educated than they were.
It was clear to
the court that he was well versed with train operations and the
regulations governing the same. He was undoubtedly familiar with the
regulations governing shunting at Maloma siding.
The Applicant
told the court however that the practice of operating the trains was
different from the theory contained in the regulations. That he had
on several occasions been authorized by the TCO to enter Maloma
siding without a written authority and to re-enter the main line
without canceling the train order "trip completed". This
was the reason why he thought the TCO had verbally allowed him to
shunt at Nsoko and proceeded to Maloma.
He told the
court that since the TCO was aware how he had' operated in the past,
there was no danger that he would have allowed another train tc enter
the section.
He added that if
the TCO had not authorized him to proceed to Maloma verbally, then
the manner in which he had spoken substantially misled him to believe
he had authority to proceed.
The Applicant
downplayed the entire episode stating that there was no accident
averted as the respondent would want the court to believe. That
indeed his suspension was an after thought because one Kenneth
Nkambule, a Loco Inspector had considered the matter and lifted the
suspension that had been imposed on him immediately after the
incident.
He was aggrieved
by the dismissal stating that it was harsh and inconsiderate of his
past record. He decried the procedure applied to discipline hirn
stating that he was dismissed by the C.E.O. yet he was supposed to
appeal to him.
That upon
dismissal he delayed to file an appeal because he had received the
disciplinary report without excerpts of the individual witnesses. He
was told to appeal to the chairman of the Board and when he did he
was informed that the appeal was time barred. He believed that he had
lodged the appeal timeously and in any event within the prescribed 14
days.
The Applicant
reported the dispute to the Commissioner of Labour who transmitted
the same to the Conciliation Mediation and Arbitration Commission
(C.M.A.C). They were unable to resolve the dispute, hence the
application to court.
The Applicant
told the court that he was currently running a family business and
would not like to return to the Respondent's employ.
At the time of
dismissal, he earned Four Thousand and Fifty Six Emalangeni
(E4,056.00.) per month. He was thirty four years old and had three
children to take care of.
He sought
compensation for the unfair dismissal because he has suffered
financial loss, as a result thereof. He believes that he was set up
by the TCO Meshack Magagula due to jealousy.
The Respondent
in a bid to discharge its statutory onus placed on it by section 42
(2) (a) and (b) called several witnesses, the first of whom was
Vincent Fana Mamba who worked as Assistant Director Train Operations.
His work was mainly to manage locomotive wagons, human resource and
general operations. He told the court that movement of trains was
regulated by the Train Control officer stationed at Mpaka control
office through radio communication.
That the drivers
like the Applicant underwent training by the respondent on train
working regulations manual. This was the sole working document by the
Respondent.
He described
shunting as the movement of a locomotive or motor powered vehicle
with or without wagons attached within prescribed limits.
In contrast,
train movement in a section was preceded by a request of authority by
a driver to a train control officer. The authority if granted was
reduced in writing and read over by both parties to each other and
confirmed as correct.
The rationale
for the procedure is to ensure complete control of train movement by
the train control officers. He had to know the position of all trains
at any given time to avoid accident. The train working regulations
(TWRs) according to the witness were strictly applied at all times.
He disputed the allegation by the Applicant that the regulations were
hardly applied in practice.
Shunting within
the limits of a Railway Station did not require any written
authority. But movement of a train into a section beyond the station
limit always needed a written authority. He denied that there were
stations without boards marking outermost points to which shunting
within station may be done without a train order. In any event, at
the station there were shunters to help in train movement and
turning.
He emphasized
that in the case of Maloma, the siding was four (4) kilometers from
Nsoko station and this was way beyond the shunting limit and written
authority was required therefore.
He said that if
the train drivers and TCOs ignored the train working regulations that
would lead to severe consequences unless previous transgressions
alluded to by the Applicant never reached the attention of
management.
He further
explained that the situation as in this case is regarded as an
averted collision because the Railway operated on the principle of
absolute working
He explained
that a key was required to enter and move out of Maloma siding and
that the same was found either at Nsoko or at Maloma. The drivers
would be told where to find the key.
The witness said
the Applicant committed a very serious offence similar to entering a
red signal area, and the consequences for such transgression was a
dismissal.
He further
explained that the Applicant's case could not be helped by TCO's
evidence that he could not have issued another order into the section
without knowing the whereabouts of the Applicant. The fact remained
that the Applicant had no authority to enter the section and he did.
For sometime, the TCO was not aware of his whereabouts as is evident
from the radio communication.
Further, he
explained that round trip orders are issued in areas prone to
communication problems. The Applicant's case was not such a case. He
simply failed to obtain a train order before leaving Nsoko for
Maloma.
The witness
however told the court that considering the circumstances of the case
if he were the one chairing the disciplinary hearing, he would have
found the Applicant guilty as charged but would have given him a
lesser sentence than dismissal. He suggested that the Applicant
should have been demoted or deployed to other duties.
He added however
that each case was judged on its own merits and that may explain why
drivers who had been charged for similar transgressions in the past
received warnings.
The Applicant
had two previous warnings relating to his conduct as a driver.
Witness number
two (RW2) for the Respondent was one Stephen Ngubane, the Director of
Operations and Marketing. Up to the year 2000, he was the director of
traffic and was in that capacity the overall manager of marketing and
human resources. He is the officer that wrote the letter that
terminated the services of the Applicant.
Speaking on the
Applicant's previous record at work, he said that on the 31st
October 1997 a train derailed whilst driven by the Applicant.
He had fallen asleep whilst driving, he received a warning after the
accident.
On the 24th
May 1999 the Applicant had a side collision whilst driving a train.
He was suspended and the said suspension was lifted without an
inquiry.
Each case
clearly depended on the circumstances.
In the present
case following the transgression, the Applicant was suspended on the
8th October 1999. He challenged the suspension stating
that the issue was minor. According to the witness, management viewed
the incident in very serious light. Going to a section without a
written authority was a recipe for a major collision. One can't
operate trains without rules, and if a train driver was given to
disregard them, then he had no place to serve as driver. He stated
that the Applicant was dismissed fairly in the circumstances of the
case after a full inquiry followed by a disciplinary hearing.
The most basic
rule of train operations was that if a train was in a given section
no other train could enter the same. This is referred to as 'absolute
working' and drivers were well versed with the basic rule.
The level of
responsibility expected of the train drivers and TCOS in train
operations is very high. If it then was anything less than that, it
was unfortunate and the culprits must face the consequences as and
when detected.
The witness
would not rule out that similar cases were treated differently by
management in the past. He emphasized that every case had its own set
of facts, and was treated on its own merits. This was no excuse for
any officer to disregard laid down regulations deliberately.
He said that the
Applicant did not demonstrate an iota of remorsefulness but rather
was insistent that the offence was minor. This meant that he could
not be reformed, hence the ultimate sentence.
This is also the
attitude demonstrated by the Applicant in court. The Applicant
clearly insinuated that officers such as the witness who were not
directly involved in train driving had no business to tell them what
to do. That the reality of train driving was very different from the
theory contained in the manual and that deviation from the manual was
common place. The court accepts the view of RW2 that this is a very
dangerous disposition by the Applicant especially in the industry he
worked.
RW3 was the
Train Control Officer (TCO) Meshack Magagula who was on duty on the
material day. He was categorical in his testimony that he had never
allowed the Applicant in the past, or on the day in question to move
to Maloma siding without a train order. He emphasized that he had
expected Applicant to radio him upon completing shunting at Nsoko,
which he did not.
He said that the
radio communication recorded verbatim was self explanatory that he
did not authorize movement to Maloma and that his mention of the key
was merely to alert the Applicant where to collect the same upon
completing the shunting at Nsoko.
He added that he
was surprised when the Applicant appeared to take such a long time at
Nsoko hence his attempt to find his whereabouts.
It was clear
from his testimony he could not have allowed train No. 2800 to enter
the section before he knew the exact location of the Applicant. This
however did not mean that there was no violation of the
regulatiohs^by the Applicant.
The court was
referred by the Respondent to the case of National Union of Mine
Workers and Mpukani v Doorfontein Gold Mining (1994) 5 (7) SA LLR 18;
Where it was
held that disregard by an employee of safety rules and precautions
that puts the safety of the operation and that of workers in
jeopardy, is such a serious offence that even a single disregard
thereof might warrant dismissal.
The court has
considered the evidence of the Applicant in its entirety vis avis
that of Meshack Magagula and in particular the explanation that he
was misled by the TCO'S Radio communication on the material day; that
it was common practice for him to shunt at Maloma without a train
order; that there was zero possibility of an accident occurring
because the TCO was aware of his whereabouts and that this may have
been a set-up by the TCO due to jealousy.
This we have
weighed against the nature and seriousness of the offence committed
in the light of possible consequences to life and property if such
laxity in following regulations continued to be condoned.
The court is of
the considered view that the Respondent has discharged its onus in
terms of Section 42 (2) (a) that the Applicant was dismissed for an
offence permitted by Section 36 (d) of the Act in that either by
imprudence or carelessness, he had endangered the safely of the
undertaking and that of other persons employed or resident at the
undertaking.
The horror, loss
of property and lives experienced whenever there is a train accident
cannot be over emphasized.
The application
fails.
No order as to
costs.
The members agree.
NDERI NDUMA
JUDGE
PRESIDENT-INDUSTRIAL COURT
