CASE NO.: LCA 50/2011
IN THE HIGH COURT OF
In the matter between:
WILDERNESS AIR NAMIBIA
JANSE VAN RENSBURG
Heard on: 17 February
2012, 02 March 2012
Delivered on: 04 April
 The appellant an air charter operator employed the respondent as
 On 09 May 2010 the
respondent was the pilot of one of the appellant’s aircraft
with registration number V5-ELE. There were twelve passengers on
board of the aircraft. At approximately 14h40 on that day the
respondent was to depart from the Epacha airstrip. His was not the
only aircraft departing at that time.
 One Michael Brasler
who piloted an aircraft with registration number V5-MKR and with four
passengers on board was also about to depart.
 Apparently it was
agreed between the pilots before take off that they will use runway
29. Brasler however, due to a change in wind direction changed his
mind and proceeded to take off using runway 11. His was the first
aircraft to take off.
 During the course of
the take off and while the Brasler aircraft was travelling on the
runway at high speed, the respondent taxied his aircraft into the
runway in front of Brasler’s aircraft. A collision between the
two aircraft was narrowly avoided, because Brasler performed an
evasive manoeuvre, forcing his aircraft into the air.
 It was common cause,
firstly that the onus of visually checking that the runway is clear
prior to entering it rests with the pilot who wants to taxi his
aircraft onto the runway. Secondly it was common cause that the
respondent did not look to his right before he entered the runway,
and had he done so he would in all probability have seen Brasler’s
aircraft busy taking off.
 Following this
incident the appellant instituted disciplinary proceedings against
 Four charges were
referred against him. They were:
Failure to comply with
Any other serious
deviation from company policy and standards.
 The respondent
pleaded not guilty to all the charges. Following a hearing, the
chairman of the disciplinary hearing acquitted the respondent on the
first charge. He found that the respondent was negligent but not
 On the second charge
the respondent was found guilty based on his failure to visually
check that the runway was clear before he entered it.
 The respondent was
also found guilty on count 3 and 4. The following sanctions were
hereby recommend that the accused is issued with a comprehensive
final written warning for Failure to comply with Safety
regulations and offending a client. Secondly I
recommend that the accused is issued with a written warning for
any other serious deviation from company policy and standards.
final written warning needs to be accompanied by a counselling
session with the accuser’s supervisor, being Mr. M. Berry.
further recommend that Mr. Janse van Rensburg are grounded for a
period of 3 weeks until he wrote an examination on the Namibian
Aviation Law on the 16th of August and a examination on
the Safety regulations and Standard Operating procedures of Sefofane
Air charters the following week on the 23rd of August
2010. He then will fly after completing the exams for a period of 6
months PICUS (Pilot in command under supervision) with bi-monthly
reports on his progress. After the 6 months expired he will be
submitted to a route check and proficiency check after which he will
be allowed to go back on line again.
mitigating factors that were taken into consideration was the fact
that Mr. Janse van Rensburg had no previous disciplinary actions
against him, his amount of flight hours, his length of service and
the fact that he still bound by a contract to Sefofane.
concludes the hearing, the accused ware again reminded of his rights
of appeal within 4 days against the outcome of this hearing. The
hearing was adjourned at 17h00.”
 The respondent not
satisfied with the outcome of the hearing, lodged an appeal against
the findings and the sanction imposed. That appeal was dismissed.
 Following the
dismissal of the appeal the respondent initially decided to write the
examinations imposed as part of his sanction. The respondent did not
achieve the required pass mark of 75%, achieving marks of 66% and 53%
respectively in respect of each examination he wrote. As a
consequence thereof the appellant did not permit the respondent to
fly any of its aircraft.
 This prompted the
respondent to file a complaint with the Labour Commissioner alleging
that the appellant’s sanction constituted an unfair labour
practice. He claimed in addition payment of overtime in an
 A protracted
arbitration hearing ensued. At the conclusion thereof the arbitrator
made the following ruling with regard to the merits of the
careful analysis of the evidence I rule that applicant was wrongly
convicted of the second, third and fourth charge. This charges were
wrongly phrased and seems not to be existent in the respondent
company’s disciplinary code of conduct. However I must indicate
that Applicant cannot completely escape blame because he partially
contributed to the incident. I must also indicate it is clear that
applicant needs to be updated with Air Law Safety and Regulations.
Furthermore, applicant cannot escape blame for not having attended
the meeting because that is a clear cut sign of insubordination on
 Having found that:
The respondent cannot
escape blame for contributing to the incident which occurred.
The respondent needs to
be “updated” with Air Law Safety and Regulations and;
The respondent was
guilty of insubordination by failing to attend a meeting convened
between the appellant and the client involved in the incident, the
arbitrator thereupon made the following award:
on the above I decided to issue the following award:
The verdict and the recommendation of the chairperson dated 23rd
July 2010 is hereby set aside and is substituted with the following
The applicant shall report for duty on the first working day
following this award.
Within three (3) days applicant has reported for work the applicant’s
supervisor, Mr. Mark Berry, shall conduct and complete a counselling
session with the applicant in relation to awareness and compliance
with the Respondent company safety and operation manual and the
Namibian Aviation Regulations.
Not later than two (2) weeks after the date of this award, applicant
shall resume his ordinary flying duties, subject to the following
The applicant shall fly PICUS (Pilot in command under supervision)
and after three (3) months expire he will be submitted to a route
check and proficiency check after which he will be allowed to go back
on line again.
Applicant is entitled to overtime; therefore it ordered that
applicant and the respondent’s accountant shall meet within ten
(10) days of the date hereof in order to determine how many hours
worked overtime and due to the applicant.”
Arbitration Award is final and binding on both parties and will be
filed with the Labour Court in terms of section 87 of the Labour Act
(Act 11 of 2007) to be made a Court Order.
 It is against this
ruling and award that the appellant lodged an appeal to this court. I
mention at this juncture that in the interim the respondent’s
contract expired and he is no longer employed by the appellant. I
would have thought that this renders the proceedings academical. I
was informed however that there is some other litigation still
pending and that the outcome of these proceedings may be relevant to
 The arbitrator, as
will be noted, gives no reason in his award why he deemed it
expedient to alter the sanctions imposed upon the respondent by the
appellant. It is also not easy to discern upon what basis the
arbitrator, having found that the respondent was wrongly convicted on
the three counts he was convicted on, considered it appropriate and
proper to impose any sanction upon the respondent. Given the fact
that it was common cause that the respondent failed to properly check
visually that the runway was clear and in doing so contravened
prescribed safety procedures, the arbitrator’s finding that the
respondent was wrongly convicted on count 2 is an error in law,
inasmuch as the arbitrator did not have proper regard to the evidence
before him. He clearly misdirected himself on that score.
 It is apparent in my
view that the respondent was correctly convicted on count 2. At the
hearing before me Mr. Mouton who appeared for the appellant, conceded
that the conviction on count 3 was wrong. I need not deal with count
4 because I do not consider it necessary for the purposes of this
judgment. The main issue around which the case revolved was the
negligence of the respondent and count 4 was premised on that fact.
 What was before the
arbitrator was whether or not the sanction imposed constituted an
unfair labour practice. Nowhere can I find any indication how the
arbitrator dealt with the issue. Absent also is a finding that the
sanction was an unfair labour practice and on what basis he found
that to be the case.
 What is clear is
that the arbitrator accepted, despite his finding that the respondent
was wrongly convicted, that the conduct of the respondent warranted
some form of corrective measures to be taken by the appellant.
the process of determining the “fairness” or “unfairness”
of a “labour practice”, the relativeness of the
particular allegedly unfair conduct must be considered in relation to
its merits and all the relevant circumstances surrounding that
Principles of Unfair Labour Practice: Page
 What needs to be
considered in my view is firstly whether the measures taken were fair
in the circumstances. This requires an objective approach. In
addition the measures must be reasonable. Measures which are not
reasonable will not be fair. In considering this aspect regard must
be had to whether there were adequate factual grounds upon which the
decision was based. Secondly whether a reasonable procedure was
followed and lastly whether the measures implemented were in
themselves reasonable. United African Motor & Allied
Workers Union v Fudens (SA) (Pty) Ltd 1983 (4) ILJ 212 (IC).
 Adopting this
approach I find that the given nature of the incident and its
possible consequences not only for the appellant but more importantly
the passengers who travel on the appellant’s aircraft, it was
reasonable that some corrective measures had to be taken against the
 The decision not to
permit the respondent to fly until such time as he fully complied
with the measures put into place by the appellant does not strike me
as unfair or unreasonable. To the contrary the measures taken are
what a reasonable employer would do given the nature of the
 The issue of
overtime can be disposed of readily. If the respondent claimed that
overtime was due and payable, he should have tendered evidence as to
what was due to him. This he failed to do or the arbitrator should
have dismissed the claim.
 For these reasons I
set aside the decision and award made by the arbitrator.
 The order I make in
the result is that the appeal succeeds.
 There shall be no
order as to costs.
BEHALF OF THE APPELLANT: Mr. Mouton
by: Koep & Partners
BEHALF OF RESPONDENT: Mr. Bard Ford
by: Hohne & Company