Long Service is not an Absolute Shield against Gross Negligence

By David Short | Director and Amanda Kubheka | Candidate Attorney

Labour Court ruling in Algoa Bus Company (Pty) Ltd v South African Road Passenger Bargaining Council and Others.

The Labour Court in Gqeberha recently delivered an important judgment in the case of Algoa Bus Company (Pty) Ltd v South African Road Passenger Bargaining Council and Others. The case serves as a reminder regarding the standard of evidence required at arbitration and the dangers of speculation.

Background to the Dispute

The matter arose following the dismissal of Mr Gerhard Goosen, a service mechanic with nearly 30 years of experience at Algoa Bus Company (ABC). Mr Goosen was dismissed for gross negligence after a bus gearbox he had just serviced sustained major internal damage, leading to a repair bill of approximately R490 000. While ABC contended that the damage was caused by Goosen taking the bus for a test drive without first refilling it with oil, Goosen maintained that he had indeed added 20 litres of oil before the drive. The central factual dispute was whether Goosen had refilled the gearbox with oil before taking the bus for a test drive.

The Arbitration Award

The arbitrator found the dismissal procedurally fair but substantively unfair. Despite an uncontested expert report from ZF Services stating that the primary cause of failure was due to a lack of lubrication, the arbitrator ruled in favour of the employee. The arbitrator reasoned that since Goosen and an apprentice claimed to have filled the oil, and 23 litres of oil was drained from the gearbox after the damage had been done, Goosen’s version was more probable. The arbitrator went as far as to suggest alternative causes for the damage, such as inadvertent stall testing by unknown drivers, even though these were never advanced by Goosen or put to the company’s witnesses.

The Labour Court’s Decision

On review, Lagrange J set aside the arbitrator’s award. The Court stated that the fact an employee has long service does not necessarily count as a strong mitigating factor. Instead of serving as a shield, the court found that because the employee had extensive service of 30 years, a routine task like an oil and filter replacement ought to have been performed without complication. The Court noted that ABC should have been able to rely on such a basic task being done properly by a mechanic of his seniority. This finding aligns with established jurisprudence. In Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340 (LAC), Zondo AJP (as he then was) famously noted that while long service is usually a mitigating factor, some acts of misconduct are so serious that ‘no length of service can save an employee’ from dismissal.

The Court held that the arbitrator committed a gross irregularity by avoiding the most plausible and natural inference from the evidence. The court found that an arbitrator is required to assess probabilities based on evidence presented, not to speculate about explanations that were never put before him or the witnesses during the arbitration. The court reasoned that since the bus had no issues prior to the service and stalled immediately after Goosen’s intervention, the only logical conclusion was that it lacked lubrication during the test drive. Importantly, the arbitrator failed to consider video footage showing Goosen making throat-cutting gestures and checking the oil level immediately after the bus stalled, which suggested a realisation of a mistake. The Court ultimately substituted the award with a finding that the dismissal was substantively fair.

Key Takeaways for Employers

1. An employee’s long tenure does not necessarily serve as a strong mitigating factor in cases of serious misconduct.

• Arbitrators are legally required to assess probabilities based on the evidence actually presented during the hearing.

• If an expert report is not disputed or its authenticity contested, it carries significant weight.

How Fairbridges can assist

The complexities of the Labour Court demand a meticulous approach to evidence and a deep understanding of the law. The Employment Law teams at Fairbridges is well assists with:

1. Challenging unreasonable arbitration awards where arbitrators have overstepped or ignored material evidence; and
2. Drafting charges and presiding over hearings involving complex labour matters.