A quality controller at Eskom's Kusile Power Station has been fired after breaching 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, took an earlier arbitration finding on review. The arbitration proceedings before the Metal and Engineering Industries Bargaining Council found that Simiso Nhlapo should have been given a second chance. The arbitrator ordered his reinstatement and a month's backpay.
Nhlapo was initially fired by his company following an internal hearing but 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, including the rules on using a cellphone.
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 had seen him handling his phone while operating a vehicle. After stopping the vehicle, the worker approached him and retrieved his access card for breach of the rule.
Nhlapo testified that as he was driving a vehicle on site, his phone had fallen and landed under the foot pedals, causing him to stop on the side of the road as the phone would have interfered with his driving. As he picked up the phone, he realized there was a text message from someone called Pretty, which he responded to.
The labour court failed to appreciate how the arbitrator could have accepted Nhlapo's explanation about why he had handled the phone while operating the vehicle.
