Health and Safety

Can the employer dismisses an employee who violates a safety rules, or who refuses to wear protective clothing that is required for the job? This question arose during a training course that I presented last week, and the question invoked a lot of discussion, with different viewpoints being put forward and argued.  In MEWUSA obo Sibisi / Pressure Die Casting (Pty) Ltd [2003] 8 BALR 842 (MEIBC), the applicant disputed the substantive fairness of his dismissal for failing to wear protective eye wear or goggles. The respondent explained that he operated a foundry with a 10 furnaces that melted aluminium and brass.


Because the area was very noisy and the molten metal sometimes splashed, employees working in that section were issued with protective clothing such as overalls, safety boots, gloves, respirators, goggles, spats and earplugs. Due to the risks involved, the respondent enforced its safety rules very strictly. The applicant had a history which showed that he did not like taking advice and he continuously ignored lawful instructions. Despite counselling sessions, this attitude problem did not improve.


There were disciplinary hearings for other incidents of failing to follow standard operating procedures, and a disciplinary hearing was held on the 3rd October 2002 when the applicant was charged with failing to observe safety regulations. The chairperson at that hearing, took note of the fact that the applicant had already had three counselling sessions and two warnings, and he imposed a sanction of dismissal. The counselling sessions were for poor work performance and not following instructions.


The respondent also explained that there was an induction programme in place which covered all of these safety rules and which the applicant had attended, and signed for on 28th November 2001. Section 7 of the induction procedure made provision that dismissal could result for a first offence of failing to follow instructions. The applicant disputed that he was ever cancelled but said he did recall being shouted at and told he was not good enough. He said that a proper counselling would have enabled him to see his faults and it would have encouraged him to do better and to change his habits – but he denied that any such counseling sessions had been held.


He also disputed any previous warnings. The evidence put forward by the employer was unquestionable and the dismissal was ruled to be fair. In Ndlovu v Promex [1995] 12 BLLR 59 (IC) it was a similar type of case, where an employee was charged with failing to wear protective equipment, but the employer unfortunately was trapped by his own disciplinary procedure and code. In this case the applicant was dismissed after 15 years service for failing to wear hearing protection as required by the respondent's rules.


In addition, the respondent was required by law to ensure that employees wear protective clothing. The applicant had been summarily dismissed a year before, for the same offence, but was subsequently reinstated. The court held that the respondent was fully justified in taking the rule seriously and that the applicant had failed to carry out a lawful instruction. However, the respondent's disciplinary code made provision that a final warning should be given for such an offence.


The court did consider whether the applicants misconduct had done sufficient damage to the employment relationship to justify dismissal, but it found that this was not the case and that by dismissing the applicant it enforced the rule with excessive stringency. At the disciplinary hearing was also found to have been procedurally unfair because the official who had issued the instruction to the respondent also chaired the hearing and acted as prosecutor.


These procedural defects were serious enough to render the procedure unfair and the respondent was reinstated. These two cases reflect that in the first instance, the employer had all his ducks in a row and had made proper preparation for the disciplinary hearing and for the arbitration. In the second instance, it does tend to reflect that the employer did not take note of his own procedures, and committed the unacceptable defect of being the judge in his own case.


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