About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2008
>>
[2008] ZALAC 18
|
|
National Union of Metal Workers of South Africa obo Cloete v Trentyre (Pty) Ltd and Others (JA49/05) [2008] ZALAC 18 (27 March 2008)
1
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held at Johannesburg
CASE NUMBER JA49/05
In the matter between:
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA OBO CHRISTOPHER
LEON CLOETE
Appellant
and
TRENTYRE (PTY) LTD 1
st
Respondent
THE MOTOR INDUSTRY BARGAINING
COUNCIL
(DISPUTE RESOLUTION CENTRE) 2
nd
Respondent
M.E. MARAIS N.O. 3
rd
Respondent
JUDGMENT
_____________________________________________________________________
ZONDO
JP
[1] I have had the benefit of reading the judgment
written by Patel JA in this matter. I agree with the order he
proposes as well
as the reasons he advances in his judgment in
support of that order. However, I wish to add to those reasons and
emphasise certain
matters which, in my judgement, are also important.
As Patel JA in his judgment has set out the evidence, I do not
propose to repeat
that exercise. I shall, accordingly, go straight to
the matters with which I wish to deal. It will be convenient to read
Patel
JA’s judgment first before reading this one.
[2] The main issue with which I wish to deal in this
judgment is the extent to which Mr Cloete was under the influence of
alcohol
on the day in question. In this regard it needs to be pointed
out that it is not our law that the mere fact that an employee is
found to be under the influence of liquor in the workplace on a
particular day means that the only appropriate sanction in every
case
is dismissal. Each case must be decided on is own merits but,
generally speaking, progressive discipline must be applied.
This does
not mean that it will never be fair for an employer to dismiss an
employee for a single instance of being under the influence
of
alcohol. Whether or not dismissal is a fair sanction in a particular
case is an issue that must be decided with due regard to
the nature
of the employee’s job, his length of service, his disciplinary
record, the extent to which he was under the influence
of alcohol and
other relevant factors. Whether or not the sanction of dismissal is
fair in a particular case is a value judgment
that the CCMA
commissioner or some other arbitrator must make on the basis of his
or her own sense of fairness which, subject to
other grounds of
review set out in sec 145 of the Labour Relations Act, 1995 (Act 66
of 1995) (“
the Act
”), the Labour Court and this
Court cannot overturn if it is a decision that could be reached by a
reasonable decision maker.
[3] Trentyre is involved in the business of tyre repair
and supply. Cloete was employed as a wheel balance/general worker. It
was
common cause between the parties that Cloete had been under the
influence of liquor. What was not common cause was the extent to
which he was under the influence. In his evidence Cloete said among
other things that he was at some stage asked to do wheel balancing
and experienced some difficulty in removing the wheel weights.
[4] Mr Herman Klaaste was Cloete’s friend and
colleague. He testified that he was with Cloete the whole day and
that at about
15h30 he and Cloete had gone to buy lunch. He testified
that, when they returned, Cloete was asked to work with a customer’s
wheels and had done so and there was no problem with his work.
Klaaste said that, before he and Cloete had gone to buy lunch, Cloete
had indicated that he was feeling drowsy. Klaaste testified that
Cloete had been normal in terms of work but his eyes had been
red
from the morning. Klaaste also testified that, when he arrived in the
morning, Cloete had smelt of alcohol. Klaaste also testified
that on
the day in question it was a very busy day and yet Cloete’s
work was without any problems. Klaaste said that at some
stage Cloete
was removing wheel weights in the present of a customer and there was
no problem. Klaaste specifically said that Cloete
did not walk
unsteadily. Klaaste’s evidence is very important. As he was
Cloete’s friend, one would have thought that
he would display
bias in favour of, his friend, Cloete, in giving his evidence but he
categorically said that Cloete had red eyes
the whole day and he
smelt of alcohol. That seems to me to be the evidence of an honest
witness. The commissioner held that Klaaste
was a credible witness
and a “
stable
” person. This finding by the
commissioner was not attacked in the review application papers.
[5] Mr Jan Mathys, one of Cloete’s witnesses,
testified also that he worked with Cloete the whole day and that
Cloete worked
normally. Mr Mathys testified that he had spoken to
Cloete after lunch and had not observed anything wrong with Cloete.
Matthys’
evidence seems to corroborate that part of Klaaste’s
evidence that was to the effect that there was nothing wrong with
Cloete’s
work on that day.
[6] Trentyre’s witnesses who gave evidence that is
relevant to the extent to which Cloete was under the influence of
alcohol
were Messrs Strydom, Aggenbach, Lockwood and Louw. I set out
what they each said in their evidence in this regard. Mr Strydom said
that he saw Cloete arrive in the morning. Mr Strydom said that, as
far as he was concerned, Cloete was absolutely normal when he
arrived
in the morning and during the morning. However, he testified that
after 14h30 he went to the fit room after getting some
report about
Cloete. He said that at the time Cloete was removing wheel weights
and he observed that Cloete’s hand/eye co-ordination
was not
right and that he was unsteady on his feet. He went to call Mr
Lockwood for a second opinion and came back. He testified
that he
observed on this occasion that Cloete’s hand/eye co-ordination
was not 100%. He testified that he said this because
sometime Cloete
would hit the rim or the weights. On the advice of Mr Aggenbach,
Strydom called Cloete to his office and Cloete
smelt of alcohol, his
eyes hung and were bloodshot and he was aggressive.
[7] Mr Aggenbach testified that Cloete’s eyes were
bloodshot and that he staggered. Mr Lockwood testified that he was
not
near enough to Cloete to have been able to smell alcohol. Mr Louw
testified that in the company arrangements are made for an employee
who has a drinking problem to be assisted.
[8] With regard to Trentyre’s witnesses the
commissioner was not completely happy with some of the aspects of
Trentyre’s
witnesses’ evidence. He specifically stated at
page 7 of his award that certain aspects of their evidence were not
reliable.
In this regard he stated that Mr Lockwood’s evidence
in the disciplinary inquiry was that he had observed that the
appellant
was under the influence of alcohol but during his evidence
in the arbitration his evidence was, according to the commissioner at
page 8 of his award, “
to the contrary
.” The
commissioner also recorded that at the arbitration Mr Lockwood had
been asked whether the appellant had smelt of liquor
on the day in
question and he answered that he had not come near enough to the
appellant to have been able to tell whether the
appellant had smelt
of liquor and yet, said the commissioner, Mr Aggenbach had testified
that he had called Mr Lockwood into the
office to sign the necessary
charge sheet while the appellant was in the room.
[9] The commissioner concluded in his award that on the
probabilities the appellant “
indeed was,
to some
extent
, under the influence of alcohol during working
hours
(my underlining). He went on to say: “
I am,
however, not convinced that the [appellant] was intoxicated to the
extent that [Trentyre’s] first two witnesses wanted
me to
believe. I cannot use the example used by Mr Louw, for example, make
a positive finding that the [appellant] was not in a
condition to
properly fix wheel bolts
.”
[10] From the above it is quite clear that the
commissioner was saying that, although the appellant was under the
influence of liquor,
he was not under the influence of liquor to the
extent testified to by Trentyre’s witnesses. In the light of
this it becomes
necessary to refer to the evidence of Trentyre’s
witnesses on the extent to which they said the appellant was under
the influence
of liquor. This is to be found in the fourth paragraph
at page 7 of the commissioner’s award. There the commissioner
recorded
that Trentyre’s two witnesses testified that the
appellant was drunk at about 16h00 on the day in question and that,
if their
description of his condition was true, there would be little
doubt that the appellant was “
drunk to the extent that he
would not at all be able to perform his duties
.” The
commissioner said that Trentyre’s two witnesses testified that
earlier in the day the appellant had acted normally.
Later the
commissioner said: “
I did not conclude that the [appellant]
was intoxicated to more than some extent
.”
[11] At the top of paragraph 1 of his arbitration award
the commissioner stated that he would accept that Cloete was so much
under
the influence of liquor that he could not perform his duties
with the expected skills. I have three difficulties with this
statement
by the commissioner. The one is that in his award the
commissioner proffered no reasons or information on which he based
this statement.
Another difficulty with this statement is that
earlier on in his award the commissioner had said, and I have quoted
this part of
his award earlier in this judgment – that he could
not make a positive finding that “
the appellant was not in a
condition to properly fix wheel bolts.
” Fixing wheel bolts
would have been part of Cloete’s duties and, if the
commissioner was not in a position to positively
find that Cloete was
not in a condition to properly fix wheel bolts, what other duties was
he saying Cloete could not perform with
the expected skills? In this
regard it needs to be pointed out that the commissioner fails in his
award to spell out what those
other duties were which he thought
Cloete could not properly perform because of the extent to which he
was under the influence
of liquor. Furthermore, the commissioner had
himself said in his award that he was not prepared to accept the
evidence of Trentyre’s
witnesses as to the extent to which
Cloete was under the influence of liquor. If he was not prepared to
accept that Cloete was
as much under the influence of liquor as
Trentyre’s witnesses sought to make out, then it must be
accepted that, in so far
as Trentyre’s witnesses may have
testified that Cloete was so much under the influence of liquor that
he would not have been
able to perform his duties with the required
skills, the commissioner was at some stage of his award not prepared
to accept this
but later made a statement to the same effect. In my
view this means that on this point the award is self –
contradictory.
[12] At any rate the question arises as to which
witnesses testified that Cloete was so much under the influence of
liquor that
he could not perform his duties with the required skills.
We know that Klaaste, who worked with Cloete the whole day on the day
in question, testified that, although Cloete’s eyes were red
and he smelt of liquor, he had no difficult doing his work.
What
Trentyre’s two witnesses said in this regard is to be found in
the commissioner’s own award at page 7. There the
commissioner
recorded that the description which Trentyre’s two witnesses
gave of Cloete was such that, if it was true, there
would be little
doubt that Cloete would not at all have been able to perform his
duties. Since his own understanding of the evidence
of the two
Trentyre witnesses was that Cloete was so much under the influence of
liquor that he would not have been able to perform
his duties, it
must be so that, when elsewhere in his award he said that he could
not accept the evidence of Trentyre’s witnesses
about the
extent of Cloete’s being under the influence of liquor, the
commissioner meant that he could not accept that Cloete
was so much
under the influence of liquor that he could not perform his duties.
Accordingly, his finding that Cloete was so much
under the influence
of liquor that he could not perform his duties with the requisite
skill was not based on the evidence given
by Trentyre’s
witnesses nor was it based on any witness’ evidence. Indeed, it
had no evidential basis. On the evidence
before him and in the light
of his rejection of the evidence of Trentyre’s witnesses of the
extent to which Cloete was under
the influence of alcohol, the only
conclusion open to the commissioner to reach was simply that Cloete
was under the influence
of liquor but not to the extent that he could
not perform his duties.
[13] With that conclusion, there can be no doubt that
the decision that dismissal was, in the circumstances of this case,
too harsh
a sanction and that, accordingly, dismissal was
substantively unfair, is not a decision that a reasonable
decision-maker could
not reach. However, even on the finding that the
extent to which Cloete was under the influence of liquor was such
that he would
not perform his duties with the requisite skill, I
would not interfere on review with the decision that dismissal was in
this case
too harsh and was substantively unfair, particularly on the
test of reasonableness decided upon by the Constitutional Court in
the Sidumo case as the decision whether a dismissal is fair or unfair
must in a CCMA arbitration be decided by the CCMA commissioner
on the
basis of his sense of fairness, although such decision must be
reasonable.
[14] The commissioner referred to case law on dismissal
for drunkenness in the workplace. The case law included
Mondi
Paper Co v Dlamini
[1996] 9 BLLR 1109
(LAC) at 1111, Tanker Services
(Pty)Ltd v Magudulela
[1997] 12 BLLR 1552
(LAC)
at 1553 and
concluded that this was a case where dismissal as a sanction was too
harsh. In this regard he applied progressive discipline.
He took into
account that the appellant had worked for three years and, except for
a warning for late coming, had no adverse disciplinary
record. He
took into account the fact that the appellant was a good and
dedicated worker but, nevertheless, thought that his conduct
was
sufficiently unacceptable to warrant that he be given a final written
warning valid for 12 months and that he should not get
any
compensation for the period from the date of dismissal to the date of
reinstatement. The date of reinstatement is, of course,
the date of
reinstatement in terms the order of the commissioner. That is 16
August 2004.
[15] In the light of the above can it be said that the
commissioner’s decision that the sanction of dismissal was too
harsh
and his order that the appellant be reinstated are unreasonable
in the sense that they are decisions that a reasonable decision-maker
could not reach? In my view that can certainly not be said on these
facts and circumstances. If I had sat at a commissioner I would
definitely have also found that dismissal as a sanction was too harsh
in the circumstances of this case.
[16] In any event the grounds as contained in its
founding affidavit upon which Trentyre had sought to have the
arbitration award
reviewed and set aside were that the commissioner
committed a gross irregularity or exceeded his powers for one or more
of the
following reasons:
(a) he interfered with the sanction imposed by the
employer when it was unwarranted to do so in all of the
circumstances.
(b) the commissioner’s conduct in interfering with
the employer’s sanction when it was unwarranted to do so gave
rise
to the inference that he did not apply his mind at all to the
issues or that he did not apply his mind properly.
(c) he failed to have due regard to the relevant
principles and misdirected himself and completely ignored or failed
to appreciate
that dismissal was in all the circumstances,
justifiable and fair given the nature of the appellant’s
functions and duties.
(d) he exceeded his powers “
by substituting the
sanction of dismissal with a sanction that [the appellant] must be
reinstated and issued with a final written
warning
.”
(e) that the commissioner’s finding and
conclusions that the dismissal was unfair was unjustifiable and
irrational.
[17] The above were for all intents and purposes the
only grounds upon which Trentyre sought in its founding affidavit to
have the
commissioner’s award reviewed and set aside. There was
no other complaint of any substance against the award. Some of the
grounds are vague and constitute conclusions but no information is
provided to substantiate the conclusions. Some of the grounds
of are
based on justifiability as a ground of review of arbitration awards
based on the law as it was in this regard prior to the
handing down
of the Sidumo judgment of the Constitutional Court and, since that
decision, they are no longer of application in
review cases of CCMA
awards. I have no hesitation in saying that not a single one of these
complaints or grounds has merit. In
my view not much needs to be said
further about them.
[18] In the light of the above the Court a quo ought not
to have interfered with the arbitration award and should have
dismissed
the review application.
ZONDO JP
I agree.
PATEL JA
I agree.
WAGLAY JA.
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE
NUMBER JA49/05
In the matter between:
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA OBO CHRISTOPHER
LEON CLOETE
APPELLANT
and
TRENTYRE (PTY) LTD
FIRST RESPONDENT
THE MOTOR INDUSTRY BARGAINING
COUNCIL
(DISPUTE RESOLUTION CENTRE)
SECOND RESPONDENT
M.E. MARAIS N.O.
THIRD RESPONDENT
JUDGMENT
________________________________________________________________________
PATEL JA
INTRODUCTION
[1] The appellant, National
Union of Metal Workers of South Africa (“NUMSA”), with
leave of the Labour Court, brings
this appeal on behalf of Mr
Christopher Leon Cloete (“Cloete”). The first respondent
is Trentyre (Pty) Ltd (“Trentyre”),
a tyre repair and
supply company and the erstwhile employer of Cloete. The second
respondent is the Motor Industry Bargaining Council
(Dispute
Resolution Centre). It is cited herein because Cloete referred an
unfair dismissal dispute to second respondent and the
third
respondent was the arbitrator who found the dismissal to be unfair
and ordered his reinstatement. A sanction of a final written
warning
valid for twelve months was imposed. The matter went on review to the
Labour Court and Kruger AJ set aside the decision
of the arbitrator
and held the dismissal to be substantively fair.
BACKGROUND
[2] Cloete had been employed by
Trentyre as a wheel balancer/general worker. On the 8
th
January 2004 Cloete was dismissed for being drunk and drinking
alcohol while on duty. It is not in dispute that at the time of
his
dismissal Cloete had been employed for a period of three years and
was technically a first offender although he had received
a warning
for late coming. Numsa thereafter referred an unfair dismissal
dispute on behalf of Cloete to the second respondent.
As pointed out
earlier the matter proceeded to arbitration before the third
respondent. The only issue which the third respondent
was required to
determine was whether or not Cloete’s dismissal was
substantively unfair. It is common cause that the procedural
fairness
of the dismissal was not in issue.
Arbitration proceedings
[3] The first person to testify
on behalf of Trentyre was Mr. Chris Strydom, a floor supervisor and
salesperson. It was his duty
to ensure that the operations ran
efficiently and that safety standards were observed. Cloete’s
task as a wheel balancer
required him to be sober because of
potential risks if wheels were not balanced properly. Strydom
testified that on the morning
of the 17
th
December 2003 he
observed Cloete and he appeared to be normal. However in the mid
afternoon he noticed that Cloete’s coordination
appeared to be
affected and that he was unstable on his feet and smelt of alcohol.
His eyes were droopy and his speech was slurred.
He further testified
that he was aware that Trentyre’s disciplinary code provided
for immediate dismissal for the offence
with which Cloete was
subsequently charged. Strydom went in search of Mr. Lockwood to get a
second opinion. I deal with Lockwood’s
evidence herein below.
Strydom returned to the floor and observed that Cloete was balancing
a wheel but his coordination was not
100% in that he sometimes hit
the rim or the weights. He reported the matter to Mr. Jacob Agenbach,
the acting manager in order
to get advice as to how he should handle
the matter. Agenbach asked him to summon Cloete to his office. Cloete
only reported to
the office after being called four times. In the
office he appeared to be aggressive and refused to undergo a
breathalyzer test
and also to go to the hospital for a blood test. He
wanted to leave the office. Strydom could not with certainty say that
Cloete
had been drinking on the premises. Cloete explained that he
had been taking medication which would have contributed to his
disposition.
[4] Thereafter Mr Jacob Andries
Agenbach, the administrative manager who acted as a manager when the
manager was absent, testified.
He was alerted by Strydom who was of
the view that Cloete was drinking on duty. He summoned Cloete who
would not come until he
personally had to go to the ‘fit room’
and inform him that he needed to speak to him and that he was going
to be charged
with misconduct. He smelt alcohol on him and his eyes
appeared to be blood shot. Cloete further refused to take a
breathalyzer
test and was disagreeable to having his blood drawn. He
decided to telephone the police because he wanted independent
evidence
to prove that Cloete was under the influence of alcohol.
Cloete was also becoming aggressive. Cloete’s contention was
that
he had taken medication. When the police officer, Louw, arrived
Cloete took him to the tearoom but no pills were found. It was Louw
who decided to incarcerate him on a charge of drunkenness. He said
that even after Cloete had left his office, the room smelt of
alcohol. The company code clearly provided for dismissal for the
charge Cloete faced. He could not say whether the code was explained
to the workers on a continuous basis.
[5] The next person to testify
was Mr Charles Levack Lockwood. He was a salesperson in control of
consignment stock. At about 15h00
he was invited by Strydom to
observe Cloete. He saw that something was amiss with Cloete as Cloete
worked on the balancing machine.
He also overheard Cloete say that he
was tired. He, however, was not close enough to smell alcohol on him.
[6] The next person to testify
was Mr. Stephen Louw, the branch manager. He was elsewhere on the
17
th
December 2003. At about 15h00 upon receiving a
telephonic message, he telephoned Agenbach who informed him that
Cloete was under
the influence of alcohol. He further testified that
Cloete was a shop steward and had two months prior to the incident
represented
a co-worker, Arendse who was also charged with a similar
offence. At that disciplinary enquiry Cloete specifically raised the
issue
as to why management had not taken Arendse for a blood test or
a breathalyzer test. He independently made enquiries from a
pharmacist
as to whether the pills Cloete allegedly took would have
the effect constrained for. However without a clear indication by
Cloete
in his evidence of the kind of pill he was taking it would
have been impossible for Trentyre to call evidence in rebuttal. All
employees, when they started employment, were given a copy of the
Disciplinary Code and were required to sign each page. The company
had a general procedure in place which allowed it to breathalize
employees suspected of drinking. There had been no other similar
incident at their depot. Arendse whom Cloete represented worked on
the mine. The company had a policy of assisting anyone who had
a
drinking problem. As far as Cloete was concerned, other than
instances of late coming for which he had received a written warning,
he had a clean record. Louw was of the opinion that as a shop steward
Cloete should have led by example. Cloete’s negligence
in
discharging his function especially if he had not fitted bolts to a
wheel properly could have had very grave repercussions.
[7] After Louw’s evidence,
Trentyre closed its case and Mr. Herman Klaaste, a fitter in the
employ of Trentyre, took the stand
to testify on behalf of Cloete. On
the day in question he worked with Cloete. The gist of his evidence
was that in the morning
he had seen that Cloetes eyes were bloodshot
and that he reeked of alcohol. His condition remained the same
throughout the day.
There had been no problem with Cloete’s
work. He testified further that at around midday Cloete had
complained of feeling
drowsy. They had thereafter gone to buy food
and returned and continued with their work. He was working when the
police came and
arrested him. He conceded under cross-examination
that Cloete was his friend and he knew him well.
[8] Thereafter Cloete took the
stand. His evidence was that on the night of the 15
th
he
had attended a year-end party. He had not drunk much that night
because he was on standby duty. The next day, the 16
th
December, was a public holiday. He had consumed alcohol until late in
the evening. He had slept for about four or five hours and
felt fit
enough to go to work on the 17
th
. He conceded that he
still smelt of alcohol. He and Strydom continued working through
lunch and, because he did not feel well,
he took his medication on an
empty stomach and only had lunch at around 15h00. He was requested by
Strydom, the floor supervisor,
to do wheel balancing. He jacked up
the car but experienced some difficulty in removing the wheel
weights. Klaaste helped him with
the washing of the tyres. He was
called thrice by Strydom and Lockwood but, because he was busy, he
did not respond immediately
but told them that he would come as soon
as he was finished.
[9] When Agenbach confronted
Cloete about smelling of liquor, he did not demur but informed him
that he had drunk the night before.
He was then told by Agenbach that
he was going to be charged. Mr. Strydom then wrote out the charge
sheet and asked him to sign.
He refused to do so. Nor would he take
the breathalyzer test because he feared that the pills he had taken
would give a refracted
reading. He said that Agenbach prevented his
exit from the office and insisted that he take the test. He testified
that nobody
insisted that he should go and see the doctor or have his
blood drawn. After he had pleaded with them for 5 minutes, they let
him
leave. He was not aggressive. After he left the office and while
he was attending to his job, the police arrived. The police officer
forcefully took him back to Agenbach's office and asked him to blow
into the breathalyzer. He explained that he had taken medication
and
therefore refused to blow. He refused to go with the police officer
to the doctor to have his blood drawn for that very reason
and
further because he had been drinking the night before. When the
police officer asked to have a look at the medication which
he had
taken, he referred him to his locker. Upon arriving at the locker and
finding no medicine, he remembered that he had brought
sufficient
medication for that day only. He was detained at the police station
and later released. No charges were preferred against
him. It is not
clear on what basis the police got themselves involved in what
appears to have been an issue only between an employee
and his
employer. As I have pointed out earlier Agenbach’s explanation
for calling in the police was that he wanted independent
verification
of Cloete’s disposition coupled with his aggressive behavior.
Cloete initially denied knowledge of the contents
of the code but was
constrained to admit that he did know about it since he represented
Arendse at a disciplinary hearing. He felt
that he was being
victimized because he was a spokesperson for the workers. He denied
being unfit to do his work or that he had
any difficulty with
co-ordination save that, before lunch he felt feint and blank and,
therefore, he had taken his pills. His only
reason for refusing to
comply with the employer’s demands was because of the
medication he had taken.
[10] The next person to testify
on behalf of Cloete was Jan Mattys. On the 17
th
of
December he had worked with Cloete all day. He noticed that Cloete’s
eyes were slightly red. When it was put to him that
Cloete smelt of
alcohol he said that was possible but he had executed his work
properly. He denied that Cloete was unsteady of
feet. He could not
say whether Cloete felt unwell despite the fact that he worked
approximately four feet away from him. He was
aware that people were
not allowed to work under the influence of alcohol.
[11] The arbitrator found that
Cloete’s explanation for refusing to undergo the test to be
reasonable. But without drawing
any adverse inference she stated
that:
“
It is
however not irrelevant that the applicant (Cloete) did not request
that he be taken to his doctor, Dr Grobler”
On the conspectus of evidence
the arbitrator found that it was probable that “the applicant
indeed was to some extent under
the influence of alcohol during
working hours”. She, however, rejected the level of
intoxication contended for by Trentyre.
She accepted that Trentyre
was a national company and the disciplinary code was of general
application. She also accepted that
the disciplinary code provided
for dismissal for being under the influence or drinking at work. She
found the following mitigating
circumstances outweighing the
aggravating features as constrained for by the manager, Louw, in his
evidence: Cloete was a good
worker who had been in the employ of
Trentyre for a period of three years and, save for a warning for late
coming, he had a clean
record. The fact that the previous day was a
public holiday and Cloete may have indulged to excess was also
brought into the ambit
of reckoning.
[12] The arbitrator noted that
Cloete’s version was that he was not intoxicated. This version
to an extent was supported by
his witnesses. The arbitrator was of
the view that the purpose of discipline was to correct behavior and
not to punish wrongdoing.
She said that the penalty of dismissal
should not be applied inflexibly. She said that Trentyre had failed
to discharge the onus
resting on it that it was reasonable to dismiss
Cloete in the circumstances. She found, therefore, that the sanction
of dismissal
was unfair and reinstated Cloete without any back pay.
She further issued a final written warning against Cloete for
drunkenness
while on duty valid for a period of twelve months from
the date of reinstatement.
PROCEEDINGS BEFORE THE
LABOUR COURT
[13] The company was aggrieved
by the arbitration award. The matter thereafter served on review
before Kruger AJ. The relief sought
in the review application was in
essence for the setting aside of the award of the arbitrator and for
a finding to be made that
Cloete’s dismissal was substantively
fair. The founding affidavit does not crisply set out the basis for
the attack but stripped
of its prolixity, Trentyre challenged the
arbitrator’s finding that despite Cloete being intoxicated the
sanction imposed
by Trentyre was “unduly harsh and too extreme
in the circumstances”. The founding affidavit does not set out
clearly
the grounds for the attack of the arbitrator’s award
especially in what way the arbitrator had misdirected herself in
coming
to the conclusion that the sanction imposed by Trentyre was
“unduly harsh and too extreme in the circumstances”. Be
that as it may Kruger AJ reviewed and set aside the arbitration award
and remitted the matter to the second respondent for a fresh
arbitration hearing before a commissioner other than the third
respondent. He also ordered Numsa to pay the costs of the
application.
[14] The learned Judge, in the
absence of specification by Trentyre of the grounds of review,
concluded that the arbitrator did
not have sufficient regard to the
following factors:
“
1
Cloete was fully aware of the company’s policy for misconduct
concerned. It included that the company may require the undertaking
of a breathalyzer test.
Cloete refused to sign the
charge sheet (whereby he would simply have acknowledged receipt
thereof) when requested to do so.
Cloete refused to undergo the
breathalyzer test when requested to do so by his employer.
There was some aggression on
the part of Cloete when he was requested to follow the procedure
adopted by the applicant which formed
part of its policy and of
which Cloete was aware.
The applicant saw fit to
involve the police who attended the premises who also requested
Cloete to undergo a breathalyzer test,
which he refused.
Cloete refused to go to a
doctor thereafter.
The reason for refusing to
undergo the breathalyzer test was the alleged use of medicine but
knew that the alcohol test would
be positive and therefore he had
another reason not to disclose that and that was also a breach of
trust on his part.
He did not request to be sent
to his own doctor, and
The police independently saw
fit to detain Cloete for about four hours in the police cells.
(Cloete testified the police wanted
to charge him with drunkenness).
On the alleged use of medicine
he did not call his own doctor and did not provide any corroborative
evidence as to the nature
thereof.”
[15] Although the learned Judge
a quo
did not categorically say so, he seems to have been of
the view that the arbitrator had committed a gross irregularity by
not taking
into consideration the above factors in coming to the
conclusion that the sanction imposed was unduly harsh. As pointed out
earlier
Trentyre in its review application did not specifically plead
that the arbitrator had failed to take these grounds into account.
Be
that as it may he granted the appellant leave to appeal.
The Appeal
[16] Before us, counsel for
Cloete and Trentyre were in agreement that the finding made by the
arbitrator that Cloete was intoxicated
on the day in question was not
in issue although the degree to which he was intoxicated and whether
he had taken alcohol at his
workplace or not was in issue. Trentyre
did not lead any evidence before the arbitrator to show that Cloete
had drunk alcohol at
work nor that he was found in possession of any
bottles of alcohol. The gravamen of the appeal was therefore whether
the learned
Judge was correct in taking into consideration the
factors outlined above ([Para. 14]) in coming to the conclusion that
the arbitrator
had misdirected herself in coming to the conclusion
that the arbitrator had misdirected herself when she concluded that
the sanction
imposed on Cloete by Trentyre was unduly harsh.
[17] However before considering
this issue it is imperative to reflect on the test to be applied by
the court
a quo
in setting aside an award made
by an arbitrator the commissioner. In the recent decision of the
Constitutional Court in the, as
yet unreported case of
Z.
Sidumo and Another v Rustenburg Platinum Mines and Others
(Case
No CCT 85/06) wherein the majority of the Court per Navsa AJ, held
that the standard to be applied when a decision by a commissioner
on
a dismissal dispute is sought to be reviewed is the following:
“
Is the decision reached by the commissioner
one that a reasonable decision-maker could not reach?”
In
Para 75 in the
Sidumo
case
the Constitutional Court said, inter alia: “Ultimately, the
commissioner’s sense of fairness is what must prevail
and not
the employer’s view.”
[20] This court in evaluating
the Sidumo judgment has recently stated in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and others
Case
No: DA 10/05 in the yet unreported judgment of Zondo JP at para [96]
as follows:
“
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision or finding of
a CCMA
commissioner, the Court feels that it would have arrived at a
different decision or finding to that reached by the commissioner
when that happens, the court will need to remind itself that the task
to determine the fairness or otherwise of such a dismissal
is in
terms of the Act primarily given to the commissioner and that the
system would never work if the Court would interfere with
every
decision or finding or arbitration award of a CCMA commissioner
simply because it would have dealt with the matter differently.
Obviously, this does not in any way mean that decisions or findings
of the CCMA are not shielded from the legitimate scrutiny of
the
Labour Court on review. Sidumo attempts to strike a balance between
two extremes, namely, between interfering too much with
decisions or
arbitration awards of the CCMA and refraining too much from
interfering with CCMA’s awards or decisions. That
is not a
balance that is easy to strike. Indeed, articulating it may be
difficult in itself but applying it in a particular case
may tend to
be even more difficult”
These dicta are very apt in this
case. When one takes the totality of the circumstances into account
can it be said that the decision
the decision to which the arbitrator
arrived at was not that which a reasonable arbitrator/commissioner
would arrive at. I propose
considering the factors listed by Kruger
AJ in order to determine whether he was correct in coming to the
conclusion to which he
did.
[21]
As regards factors
1,2,3,4,6,7,8 and 10
A copy of the disciplinary Code
was not introduced in evidence nor was there any suggestion that such
a code was arrived at by agreement
between the parties. Accordingly
it is difficult to understand how the court
a quo
came to the
conclusion that Trentyre’s disciplinary code required “the
undertaking of a breathalyzer test”. Counsel
for Trentyre
conceded in argument that no such provision existed. Absent such a
provision there was no contractual obligation on
Cloete to submit to
a test or have his blood drawn. Similar considerations apply to his
failure to attend a doctor nominated by
Trentyre or to see his own
doctor. Nor was there any obligation on him to call his doctor to
testify. No adverse inference could
be drawn from Cloete’s
failure to sign the charge sheet. All employees are entitled to
reflect on the charge sheet before
blithely signing the same. There
was no evidence that Cloete was given this opportunity. Nor was there
cogent evidence that Cloete
was aggressive. On the other hand the
evidence of his witnesses was to the contrary.
[22]
As regards factors 5 and
9
These factors relate to the
intervention of the police. Other than stating in evidence that
Trentyre needed independent evidence
to corroborate their version, I
can see no reason why these factors were relevant to the conclusion
to which the learned judge
arrived. If indeed the intervention of the
police was necessary and relevant then and in that event the evidence
of the police
officer was not canvassed at the hearing. Without such
viva voce
evidence, I can see no reason why the hearsay
evidence of Trentyre’s witnesses should be relevant to the
conclusion to which
the learned Judge came or for that matter, such
factors should have been brought within the ambit of reckoning by the
adjudicator
in arriving at an appropriate sanction.
[23] In my view the arbitrator
properly took into account the following factors in arriving at an
appropriate sanction:
This was an isolated incident
and occurred a day after a public holiday. Cloete could have been
counseled and given a warning
to obviate any future lapses. There
was no evidence that Cloete was dependant on alcohol and therefore
the prospects of cure
or correction through counseling would be of
no benefit to him.
Although his job entailed
responsibility, no cogent evidence was presented to show that any
damage was occasioned to the rim or
the tyre which Cloete was
balancing when he was confronted or for that matter that he had
executed his other tasks in a shoddy
or negligent manner on the day
in question.
Although Cloete did not
immediately attend the office of the manager upon being summoned,
his explanation that he was completing
the task allocated to him
cannot be regarded as being so unreasonable so as to be incredible.
In any event had Trentyre regarded
his conduct to be an act of
insubordination, he should have been charged accordingly.
The arbitrator did in her award
punish Cloete by depriving him compensation in respect of loss of
earnings for a period of about
six months. She also issued a final
warning for drunkenness while on duty valid for a period of twelve
months from the date of
reinstatement. This punishment for an
isolated incident is in my view not only adequate but reasonable.
[24] When the above
considerations are taken into account can it be said that the
decision arrived at by the arbitrator is one that
a reasonable
decision-maker could not reach? In my view based on this test the
arbitrator’s award must prevail. With regard
to costs I am of
the opinion that the requirements of the law and fairness dictate
that there should be no order as to costs both
in this court and in
the court below.
[25] In the premises the
following order is the order of this court:
(i) The appeal is upheld;
(ii) There is to be no order as
to costs.
(iii) The order made by the
Labour Court in this matter on 21 June 2005 is set aside and the
following substituted therefor:
“
(a)
The application is dismissed;
(b) There is to be no order as
to costs.”
Date of Hearing: 22 November
2007
Date of Judgment: 27 March
2008
Appearances
:
For the Appellant: G A Leslie
Instructed by: Cheadle
Thompson & Haysom
For the Respondent: M Wagner
Instructed by: Bowman
Gilfillan Inc