Goodyear SA (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (PA3/02) [2003] ZALAC 11; [2004] 1 BLLR 7 (LAC) (11 September 2003)

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[2003] ZALAC 11
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Goodyear SA (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (PA3/02) [2003] ZALAC 11; [2004] 1 BLLR 7 (LAC) (11 September 2003)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
CASE
NO: PA 3/02
REPORTABLE
In
the matter between:
GOODYEAR
SA (Pty) LTD
Appellant
and
COMMISSION
FOR CONCILIATION MEDIATION AND ARBITRATION
First Respondent
NGCOLE
HEMPE NO
Second
Respondent
NATIONAL
UNION OF METALWORKERS
Third
Respondent
MAKUBALO
Fourth
Respondent
JUDGMENT
WILLIS
JA
:
[1]
The appellant (to whom I shall refer as “the employer”) brought
an application before the court
a
quo
(
per
D. Pillay J) in terms of
section 145
of the
Labour Relations Act, No.
66 of 1995
, as amended (“the LRA”), to review an award of a CCMA
Commissioner reinstating the fourth respondent in the employment of
the
employer. I shall refer to the fourth respondent as “the
employee”. The court
a
quo
dismissed the
application with costs. It also dismissed the application for leave
to appeal. Consequent upon a successful petition
to this court, the
employer now appeals against the judgment of the court
a
quo
.
[2] The material
facts are common cause. The employee had been employed as a “
passenger tyre sorter” by the employer. He had
twenty years’
service. A mini-bus commonly known as a “kombi” and described by
the witnesses as such arrived, unannounced,
at the home of the
employee, while he was sleeping, about five hours before he was due
to begin his normal shift at 23h00 on 6 December,
1999. In the kombi
were personnel of the employer. They asked him if he was prepared to
work overtime by commencing his shift early
as management was having
a problem with absenteeism. The employee had been sent for by the
employer’s area manager. The employee
agreed to commence working
his shift early. He said he did so because he did not want to incur
the anger of the employer’s area
manager. The area manager’s own
evidence suggests that if an employee does not agree to work overtime
there can be negative repercussions
for the employee in the form,
for example, of not being given the opportunity, for a while, of
earning extra money by working overtime.
The employee was then
transported to the workplace where it appeared to other senior staff
that the employee was under the influence
of alcohol. Two
breathalyser tests were done on the employee. They showed readings
of the ratio of alcohol in his blood to be
0,229 mg/100 ml and
0,239 mg /100ml respectively. These tests plus other observations
made of the employee indicate clearly that
the employee was
considerably under the influence of alcohol but not completely
intoxicated. There is a clear company rule against
reporting for work
under the influence of alcohol. The employee was aware of this rule.
He had signed an acknowledgement of this
rule. The employee had a
currently valid final written warning, issued the immediately
preceding August, for this very same form
of misconduct. He had
narrowly avoided dismissal on that occasion and had been required to
attend the employer’s assistance programme.
The employee was, as a
result of his reporting for work under the influence of alcohol,
dismissed after a properly convened disciplinary
enquiry. He referred
a dispute about his alleged unfair dismissal to the CCMA in terms of
section 191
of the LRA. After an unsuccessful conciliation, the
matter was then referred to arbitration, in terms of the LRA. The
second respondent
was the duly appointed arbitrator. It is the award
of the second respondent which the employer unsuccessfully sought to
review in
the court
a
quo.
[3] In a terse
arbitration award, the second respondent came to the following
conclusion:
“
To have dismissed the
employee in these circumstances is not only too harsh but unfair as
he was doing the company a favour.
This dismissal is
substantively unfair.”
The
second respondent made the following award:
“
1.
The applicant will be reinstated.
2. The employer shall pay
the employee six (6) months salary, calculated as follows: R21.19 an
hour x 37.5 a week x 4.33x 6 months=R20
644.36.
3. The applicant will
report for duty on the 12 February 2001 to a position on terms and
conditions not less favourable than before
dismissal.
”
Although the court
a quo
made
certain criticisms of the award, it declined to set it aside. These
criticisms are not relevant for the purposes of this judgment.
[4] Relying on
cases such as
Carephone
(Pty) Ltd v Marcus N.O & Others
1999
(3) SA 304
(LAC), (1998) 19 ILJ 1425 (LAC),
[1998] 11 BLLR 1093
(LAC);
County Fair
Foods (Pty) Ltd
v
CCMA & Others
(1999) 20 ILJ 1701;
Adcock
Ingram Critical Care v CCMA & Others
(1999), 20 ILJ 1799 (LAC),
[2001] 9 BLLR 979
(LAC);
Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others
(2001)
22 ILJ 1603 (LAC);
Stocks
Civil Engineering (Pty) Ltd v Rip N.O. and Another
(2002) 23 ILJ 358 (LAC);
Crown
Chickens Limited t/a Rocklands Poultry v Kapp & Others
(2002), 23 ILJ 863 (LAC),
[2002] 6 BLLR 493
(LAC); and
Miladys
(A Division of Mr Price Group Limited) v Naidoo & Others
(2002) 23 ILJ 1234 (LAC), the employer’s counsel,
Mr
Wade,
submitted that
the finding that the dismissal of the employee was substantively
unfair was not rationally connected with the facts
and was
unjustifiable.
[5] The bald
facts that the employee reported for work under the influence of
alcohol at a time when he had a current final written
warning for the
same form of misconduct strongly suggest that
Mr
Wade’s
submissions
should prevail. The combined weight of the following set of facts
casts a different light on the matter:
The unannounced
arrival of persons sent by the area manager at the home of the
employee while he was enjoying his free time;
The pressure,
whether subtle or not, on him to comply with the request that he
work overtime.
The influence of
alcohol would, in all probability, have impaired the employee’s
judgment as to whether or not he should have
declined to accept the
invitation to work overtime.
The importance of
the classic
dictum
that “each case must be decided on its own merits”, repeated in
innumerable cases, is well illustrated here.
[6]
Mr
Wade
also criticised
the second respondent for not making a concrete finding that the
employee had been guilty of misconduct. It would
seem from the award
of the second respondent that he did not exercise his powers in terms
of
section 193
(1) of the LRA to make the reinstatement of the
employee operate fully retrospectively. He may therefore have
decided, by necessary
implication, that the employee had been guilty
of misconduct.
Mr
Wade
submitted that
the failure to make the award fully
retrospective arose
from the employee’s
delays in bringing
the matter to an expeditious resolution. The position is not clear.
Whether or not the second respondent did find
(or should have found)
that the employee was guilty of misconduct is, in my opinion,
irrelevant to the outcome of this case. Either
the second respondent
found:
That the employee
had been guilty of misconduct but there had been substantial
mitigation: or
The employee had
not been guilty of misconduct.
He could not have
come to the conclusion which he did on any other basis. Neither
finding would have been so obviously wrong that
it could be
interfered with on the basis that it was irrational or unjustifiable.
Whichever route he followed, the second respondent
nevertheless
concluded that the dismissal was unfair. Again, against the overall
factual background, this conclusion was not so obviously
wrong that
it could be interfered with on the basis that it was irrational or
unjustifiable. No possible basis was suggested upon
which a court
could interfere with the discretion of the second respondent not to
make the reinstatement fully retrospective and
award, in effect, only
six months’ “back-pay.”
[7] Viewing the
canvas of facts of this case as a whole, we cannot find that the
court
a quo
erred
in failing to set aside the award. The award was not irrational; it
was not unjustifiable.
[8]
There is no reason why costs should not follow the result.
[9]
The appeal is dismissed with costs.
DATED
AT JOHANNESBURG THIS 4
TH
DAY of SEPTEMBER, 2003
N.P.
WILLIS
JUDGE
OF THE LABOUR APPEAL COURT
I
agree.
C.
R. NICHOLSON
JUDGE
OF THE LABOUR APPEAL COURT
I
agree.
C.N.
JAFTA
ACTING
JUDGE OF THE LABOUR APPEAL COURT
Counsel
for Appellant:
R.B.
Wade
Attorneys
for Appellant: Chris Baker and Associates
Counsel
for the Respondent:
C.
Roodt
Attorneys
for the Respondent: Naidoo Attorneys
Date
of hearing: 2
nd
September, 2003
Date
of Judgment: 11
th
September, 2003