Supreme Court dismisses appeal

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Windhoek

The Supreme Court on Monday dismissed an appeal in which a commercial air pilot sought to overturn disciplinary sanctions imposed on him by his former employer.

Leon Janse van Rensburg, the appellant, is a commercial air pilot who approached the Supreme Court to overturn disciplinary sanctions imposed on him by his former employer, the respondent, Wilderness Air (Pty) Ltd.

The disciplinary sanctions followed a near accident at Epacha airstrip in north-western Namibia near Etosha National Park. Van Rensburg appealed to the Supreme Court to have the decision of the Labour Court set aside.

Van Rensburg was employed as a pilot by Sefofane Air Charters, the predecessor of Wilderness Air (Pty) Ltd, the respondent, in March 2008.  His initial contract was for a year, but it was extended at the end of that period. The incident which gave rise to this appeal occurred on May 9, 2010 at the Epacha airstrip.

On that day, he flew from Ongava to the airstrip at Epacha to collect some passengers. He arrived just after 13h00. His group of passengers were a little late for their flight.  There were apparently three aircraft due to depart from the airfield at the same time, and as there are no air traffic controllers at the airfield, the pilots discussed among themselves the manner of their departure.

They agreed they would take off in one direction from the runway and that aeroplane V5-MRK, piloted by Michael Brasler, and operated by Desert Air, would depart first followed by the appellant in aircraft V5-ELE.

However, as he was making his way to the runway, Brasler changed his mind because the wind direction had changed and he decided to take off in the other direction.

He announced this over the two-way radio but Van Rensburg did not hear the announcement, probably because he was starting his aeroplane’s engines at the time.

Van Rensburg, not knowing of Brasler’s change of plan, and without visually checking to make sure his way was clear, turned into the runway in front of V5-MRK, just as it was accelerating to take off. The result was that Brasler had to take evasive action to avoid a collision.

After the near collision, both Brasler and  Van Rensburg completed their planned charter flights. After he had taken off, Van Rensburg apologised to  Brasler over the radio for his action in causing the near collision.

The chairperson of the disciplinary enquiry found Van Rensburg to have been negligent, but not grossly negligent, and so acquitted him on the first charge.

He was also issued with a written warning for a serious deviation from company policy because he had failed to report the serious incident ‘within the most expeditious time’.

The chairperson of the disciplinary enquiry also recommended that Van Rensburg be grounded for three weeks until he had written examinations on Namibian aviation law, and on the safety regulations and standard operating procedures of the respondent.

Finally, it was recommended that Van Rensburg should for a period of six months after completing the examinations fly on a PICUS (pilot in command under supervision) basis, with bi-monthly reports on his progress as well as a route check and proficiency check at the end of the six months after which he would return to his ordinary duties.

Van Rensburg lodged an internal appeal against the decision of the disciplinary committee but his appeal was dismissed. He then opted to comply with the sanctions recommended by the disciplinary committee. Upon his inquiry before he wrote the examinations, he was informed that the required pass mark in the exams was the industry pass mark, which is 75 percent. However, Van Rensburg did not achieve 75 percent in either examination, but only 66 percent and 53 percent.

After he did not obtain the prescribed pass mark, Van Rensburg lodged an unfair labour practice complaint at the office of the labour commissioner in terms of Labour Act 11 of 2007. The complaint had two parts: the first related to the disciplinary sanctions, and the second to an overtime dispute he had with his employer.

The arbitrator upheld the appellant’s unfair labour practice complaint, concluding that he had been wrongly convicted on the second, third and fourth charges.

In his reasons, the arbitrator had stated that the charges were ‘wrongly phrased’ and were not consistent with the respondent’s code of conduct. Nevertheless, the arbitrator concluded that the appellant could not ’completely escape blame because he partially contributed to the incident’.

 

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