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[2003] ZALCJHB 21
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Gull Foods (Pty) Ltd v Matlala NO and Others (J1869/00) [2003] ZALCJHB 21 (20 October 2003)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. J 1869/00
In
the matter between:
GULL
FOODS (PTY)
LTD
Applicant
and
MATLALA,
L N N.O.
1
st
Respondent
CCMA
2
nd
Respondent
GALELA,
B D
3
rd
Respondent
JUDGMENT
CORAM
: A VAN NIEKERK AJ
[1]
This is an application in terms of section 145 of the Labour
Relations Act, 66 of 1995 (“the LRA”), to review and
set
aside an arbitration award made by the First Respondent, a
Commissioner of the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”). The award was made on 15
March 2000, and in it the First Respondent ordered that the
Third
Respondent be reinstated in her employ and paid compensation
equivalent to 10 months’ remuneration.
[2]
The Applicant has been unable to provide a record of the arbitration
proceedings as required in terms of the rules of this Court.
The
Applicant has made the effort to compel discovery of the record, but
it appears that the CCMA has mislaid the file. The matter
was
therefore argued on the basis of the affidavits and supporting
documentation filed by the respective parties, and the terms
of the
award itself. I shall return to this aspect and its
appropriate consequences after giving consideration to the
arguments
raised by the parties.
[3]
The Third Respondent was employed by the Applicant as a supervisor.
The Applicant alleges that on 4 January 1999 she was
found by her
manager, outside her workplace, sitting down together with another
supervisor. The Third Respondent informed her manager
that she was
ill. The manager had been told by one of the Applicant’s
other employees that the Third Respondent was
smelling of alcohol.
The Third Respondent was asked by her manager whether she had
consumed alcohol, which she denied.
[4]
The Third Respondent was sent to the local clinic, where she was
examined. The nursing sister on duty called the manager
and
advised him that the Third Respondent should not be permitted to work
with knives, as she appeared to be drunk. In consequence
of
this conversation, the Third Respondent was sent for a blood test.
The results of the blood test, made available a day
later, indicated
that the Third Respondent had a blood alcohol level of 0.16 g per 100
ml. It is trite that this exceeds
the permissible blood
alcohol level in terms of the National Road Traffic Act by more than
three times.
[5]
After further investigation, the Applicant discovered that 5 to 6
tots of brandy were missing from a fridge to which the Third
Respondent had access.
[6]
A disciplinary enquiry was conducted on 7 January 1999. At the
enquiry, the chairperson of the enquiry, a Mr R Store,
is recorded as
having testified at the arbitration hearing that the Third Respondent
pleaded guilty to allegations of being drunk
during office hours and
the theft of company property, and confined her representations to a
plea for leniency. He stated that
the Third Respondent was invited to
give evidence in mitigation. The mitigating factors are
recorded in the note of the enquiry
as matters relating to the Third
Respondent’s personal circumstances and in particular, marital
difficulties that she was
experiencing.
[7]
The Third Respondent is recorded as having denied at the arbitration
proceedings that she consumed alcohol on the employer’s
premises. She further denied being under the influence of alcohol,
and denied stealing brandy from the fridge. She stated
that she
had a stomach ache on 4 January 1999 and that she had been
given a cup of vinegar to drink. She admitted
having been sent
for the blood test after her manager had been informed by another
employee that she smelt of alcohol. She denied
pleading guilty at the
disciplinary enquiry to the charges against her. In her
answering affidavit, the Third Respondent
states that her manager had
insisted that she must plead guilty to the charges, which she refused
to do.
[8]
In his award, the First Respondent recorded that it was common cause
that the Third Respondent had been dismissed. In so far
as the charge
of being under the influence of alcohol while on duty was concerned,
the First Respondent found that the evidence
given by the manager to
the effect that he had been telephoned and told that the Third
Respondent had been drinking, as well as
the information given
by another employee who said that the Third Respondent was smelling
of alcohol, was hearsay.
The First Respondent found that the
Applicant had relied entirely on the results of the blood test to
form an opinion on the Third
Respondent’s condition. In
the First Respondent’s view, the result constituted evidence
which was not admissible
unless given by an expert. In the
absence of any expert witness called to give evidence at the
arbitration proceedings, the
First Respondent refused to accept the
results of the blood test as proof of the Third Respondent’s
intoxication. The
First Respondent held further that the Third
Respondent had continued working until the end of the shift of
4 January 1999
and it could not therefore be said that she was
unable to perform the tasks entrusted to her, nor was any other
behaviour suggesting
intoxication observed. In relation to the
allegation of theft, the First Respondent dismissed the evidence
against the Third
Respondent as unreliable and amounting to no more
than a suspicion. He concluded that the dismissal of the Third
Respondent was
substantively unfair but procedurally fair, and
ordered the Applicant to reinstate the Third Respondent and to pay
her compensation
equivalent to 10 month’s remuneration.
[9]
The test to be applied in an application for review brought in terms
of section 145 is well established. An award made by a
Commissioner
can be set aside if it is not justifiable as to the reasons given by
the arbitrator having regard to the evidence
led in the arbitration
proceedings under challenged. (See
Carephone
(Pty) Ltd v Marcus NO & others
(1998) (19)
ILJ
1425
(LAC) and
Shoprite Checkers v Ramdaw NO
& Others (
(2001) 22
ILJ
1603 (LAC). The arbitrator must
therefore have applied his mind seriously to the issues before him
and reasoned his way to
the conclusion he reached in the sense that
the conclusion must be justifiable as to the reasons given for it.
In this matter,
it appears to me that the First Respondent did not
properly determine the evidence before him. He did not have
regard to
the following:
9.1
that the Third Respondent was behaving abnormally to the extent that
she was sent to the clinic;
9.2
that her blood alcohol content was tested
on the same day;
9.3
that it was never in dispute that the blood test result was
in
respect of the test conducted, nor was the result of the test ever
contested;
9.4
that the evidence of Store, the chairperson at the disciplinary
enquiry was never rejected by the arbitrator as being untrue, nor was
the document generated at the time of the hearing, which
recorded an
admission of guilt by the First Applicant, ever properly c onsidered
or rejected; and
9.5
the Third Respondent had simply offered a bare denial both in
response
to the charges against her and in relation to her conduct
during the disciplinary enquiry in circumstances where the
probabilities
did not favour the version proffered by her.
[10]
In the circumstances of a disciplinary hearing, and in particular in
the face of what ought to be have been accepted as an
admission of
guilt on the charges against her, expert evidence was not necessary
to establish that the Third Respondent was under
the influence of
alcohol. The result of the blood test was not put in dispute,
nor was its accuracy contradicted, during
the arbitration
proceedings. The First Respondent appears to have adopted an
overly technical approach by refusing to consider
the result of the
blood test and drawing self-evident conclusions from that result.
His apparent insistence on the evidence
of an expert, who might offer
evidence only in relation to the degree of the Third Respondent’s
intoxication and its effect
on her work performance, was misguided.
In relation to the charge of theft, the First Respondent’s
finding that the
dismissal was unfair since the evidence against her
amounted to a mere suspicion is on the face of it similarly not
justifiable
in relation to the evidence before the First Respondent .
First, the Third Respondent admitted guilt to the charge in the
disciplinary
enquiry, secondly, it was never in dispute that the bag
of brandy in the fridge had been opened and that brandy was missing
from
the bag, thirdly, it appears to be common cause that the Third
Respondent had access to the brandy in the fridge and finally, the
probability is that the Third Respondent could not obtain the liquor
from anywhere else and as I stated above, on balance, she
was under
the influence of alcohol on the afternoon in question. However,
in the absence of a record and without knowledge
of precisely
what evidence, circumstantial or otherwise, was adduced during the
arbitration proceedings, I am unable to make a
finding in this
regard.
[11]
I am persuaded that on the basis of the affidavits filed by the
parties and the terms of the award itself, that for the reasons
above, the award stands to be reviewed and set aside. In any
event, and irrespective of my finding in this regard, the absence
of
a record in these circumstances warrants the same conclusion.
This Court has held previously that the failure to provide
a proper
record of arbitration proceedings is in itself a ground for setting
aside an arbitration award. In these circumstances,
it would be
futile to further attempt to compel the record or seek its
reconstruction. In my view, this is an appropriate
case for
setting aside the award for the additional reason of a failure by the
CCMA to furnish the Court with a record of the arbitration
proceedings. It is not the Applicant’s
fault that the CCMA’s file has been lost and on balance,
it
appears to me when considering the respective prejudice to the
parties that the Applicant’s right of review is an over-riding
consideration. It is unfortunate when in circumstances such as these,
a matter has to be reheard, but it would seem to me that
an order to
that effect would be equitable.
[12]
I make the following order:
1
the award made by the First Respondent dated 27 March 2000
under case
number GA 56865 is reviewed and set aside;
2
the matter is referred back to the CCMA for rehearing before
a
different Commissioner; and
3
there is no order as to costs.
_________________________________
ANDRE
VAN NIEKERK,
Acting
Judge of the Labour
Date
of judgment:
20 October 2003
Attorneys
for Applicant:
Snyman van der Heever Heyns
Attorneys
for Respondent: Mohlaba and
Moshona Inc.