Labour Court puts breaks on metro bus driver’s legal bid to get his job back

A JOHANNESBURG bus driver, who was dismissed five years ago from service when a commuter fell out of the bus and was crushed to death by the bus, will not get his job back.

Lucky Choene turned to the Labour Court to set aside an arbitration award which earlier upheld his dismissal.

The Johannesburg Metro Bus Services fired Choene in 2016 after a disciplinary hearing where it was found that he was responsible for the commuter’s death. This was primarily on the basis that he drove off when the doors of the bus had not closed.

The arbitrator made a finding on Choene’s version, and relied in particular on his evidence that he did not notice the passenger running down the stairs of the double decker bus to get off. The arbitrator found that the applicant ought to have been more alert, particularly in circumstances where he had been experiencing problems with the door of the bus.

There is nothing in the record of the proceedings under review to suggest that the arbitrator committed any reviewable irregularity in his assessment of the evidence, or that the conclusion to which he came was unreasonable, the Labour Court found.

Judge Andre van Niekerk said Choene lodged these proceedings months after the time had lapsed in which he was legally allowed to do so. He said the application was thus from the start stillborn.

“The arbitration award under review was issued almost five years ago. The applicant has litigated at leisure,” the judge said. The explanation for the delay in bringing this application is that the applicant struggled to find lawyers who would assist him.

One of the reasons given is that the lawyers with whom he met were of the view that he had no prospects of success.

“The explanation for the delay is scant. The applicant provides no detail on the legal representatives that he approached, and provides no dates as to when these representatives were consulted.”

The judge added that the grounds for review are, in any event, limited to the arbitrator’s assessment of the evidence, and in particular, his rejection of Choene’s evidence.

“It is not for this court to decide whether the arbitrator’s decision was correct – the test is whether the arbitrator committed any reviewable irregularity in his assessment of the evidence and whether that rendered the outcome unreasonable. The arbitrator found the applicant ought to have been more alert, particularly where he had been experiencing problems with the door of the bus,” the judge said in dismissing the application.