Judge Tlhotlhalemaje said Nhlapo had only himself to blame for the situation he was in.
A QUALITY controller at Eskom’s Kusile Power Station has been fired after he breached Eskom’s cardinal rule by handling or using his cellphone while driving a vehicle on site.
The Johannesburg Labour Court made the ruling, after the company, SBX, who had employed him, took an earlier arbitration finding on review. During the arbitration proceedings before the Metal and Engineering Industries Bargaining Council, the bargaining council found that Simiso Nhlapo should have been given a second chance.
The arbitrator in those proceedings ordered his reinstatement and a month’s backpay.
Nhlapo was initially fired by his company following an internal hearing, but he won his case on arbitration.
Unhappy with this, the company has now successfully turned to the labour court.
His services were terminated following a disciplinary inquiry into charges of misconduct. The charges included that he breached Eskom’s cardinal rule by handling or using his cellphone while driving a vehicle on site.
Judge Edwin Tlhotlhalemaje said it could not be disputed that one of Eskom’s cardinal rules at Kusile and related to safety on site was that all employees were prohibited from calling or texting on their cellphones while operating a vehicle on site.
An environmental health and safety officer testified about the induction of employees on safety issues. Aspects covered in the induction including the rules on using a cellphone.
He testified that the cardinal rules were implemented by Eskom on all its sites. The rules were also displayed on board signs visible to anyone entering the Kusile site.
Nhlapo did not dispute that he had gone through an induction where the rules had been emphasised.
The evidence against him was that an Eskom employee has seen him handling his phone while operating a vehicle. After Nhlapo had stopped the vehicle, the worker had approached him and retrieved his access card for breach of the rule.
Nhlapo testified that as he had been driving a vehicle on site, his phone had been between his legs. It had fallen and landed under the foot pedals. That had caused him to stop on the side of the road as the phone would have interfered with his driving.
As he had picked up the phone, he had realised that there was a text message from someone called Pretty, which he had responded to. As the other vehicles in front of him moved, he had also moved closer towards a parking space, with the phone in his hand.
After alighting from the vehicle and as he had been walking towards the office, the other worker had seen him with his phone in his hand, called him and asked why he had a phone in his hand while operating a vehicle.
Nhlapo said he had tried to explain and he had apologised but his phone was taken and he was barred from further being on the site.
Despite having earlier contended that he had no knowledge of the rules or that he had breached them, he confirmed that if an employee broke the rule, a dismissal would follow.
But he said, being fired for the offence was a harsh punishment, as the no-phone rule has been applied inconsistently. He said he knew of other employees who had been disciplined for the transgression but they had not been dismissed.
When he took his dismissal on arbitration, the arbitrator reasoned that Nhlapo had owned up for his misdemeanour and apologised. He thus ordered his reinstatement.
But the labour court said it failed to appreciate how the arbitrator could have accepted Nhlapo’s explanation about why he had handled the phone while operating the vehicle.
“One does not appreciate how any driver with the knowledge of the strict cardinal rules would want to operate a vehicle with a mobile phone wedged between his legs, instead of storing it in a safe place where it would not create a hindrance whilst operating a vehicle.”
“A further aggravating factor is that upon stopping the vehicle, he had continued to respond to a text whilst on his version there were other vehicles in front of him. This demonstrated a complete disregard for the rule with full knowledge of the consequences thereof,” the judge said.
Judge Tlhotlhalemaje said Nhlapo had only himself to blame for the situation he was in.
Pretoria News
