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[2006] ZALCJHB 23
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Morris Material Handling (Pty) Ltd v Phetla and Others (JR3135/05) [2006] ZALCJHB 23 (12 December 2006)
In
the Labour Court of South Africa
Held
At Johannesburg
CASE
NO: JR 3135/05
In
the matter between
:
Morris
Material Handling (Pty)
Ltd Applicant
Commissioner
Adv. Mpho Phetla
1
st
Respondent
Metal
and Engineering Industries
Bargaining
Council
(MEIBC) 2
nd
Respondent
Van
Wyk, Ferdinand
Petrus 3
rd
Respondent
JUDGMENT
1.
This is an application to review and set aside the arbitration award
issued by the first respondent on 25 October 2005 in which
the
commissioner found that the dismissal of the third respondent was
substantively unfair and awarded compensation in the amount
of R144
000-00. The application is opposed by the third respondent.
2.
The applicant in this matter is a labour broker. The third respondent
was employed by the applicant as a project engineer and
placed at
Billiton Group where applicant had a contract. Billiton has a zero
alcohol tolerance on site. If a person is tested positive,
he is not
allowed on site.
3.
On 15 May 2005, the third respondent consumed four beers in the
evening. On 16 May 2005 he proceeded to work. He did not undergo
a
voluntary breathalyzer test. A compulsory test was done. Two tests
were performed at different times by the security. He tested
positive
on both. He was then not allowed to enter the site. Two hours later,
the third respondent went to a private doctor where
he was tested.
The test showed that there was no alcohol in his body.
4.
The third respondent was charged with two counts of misconduct being:
(a) Reporting for
duty under the influence of alcohol at a customer’s premises.
(b) Breach of
employee’s duty of good faith.
5.
A properly constituted disciplinary hearing took place. He was found
guilty on both counts of misconduct and was dismissed. The
third
respondent referred a dispute alleging that the dismissal was unfair.
The conciliation did not resolve the dispute. The dispute
was
arbitrated by the first respondent who issued the award under review.
6.
The applicant has raised one ground of review namely that the
commissioner committed a gross irregularity in failing to
take into
account relevant evidence and consideration in concluding that the
third respondent’s dismissal was substantively
unfair.
7.
Mr. Van As for the applicant submitted that the third respondent was
aware that Billiton had a zero tolerance policy for testing
positive
for alcohol and that the third respondent did not give an explanation
why he did not undergo a voluntary test. He further
submitted that
the third respondent had himself to blame for the exclusion.
8.
Mr. Kromhout who appeared for the third respondent submitted that the
reporting on duty under the influence of alcohol and breach
of good
faith was the charge and not the breach of zero tolerance. I agree
with this submission. The charges against the respondent
appear at
p122 of the court record and have been repeated by me in paragraph 4
supra. With regard to the first charge, Mr. Langlois
who testified
for the applicant stated the following at p17 line 22 of the
Transcript:
“
We did not find
him under the influence.”
This
evidence nullifies the charge against the third respondent.
9.
Mr. Langlois testified that under Billiton’s policy being under
influence means testing positive. This is not borne out
by the
policy. The policy as it appears at pages 141 and 142 of the court
papers states:
“
Being
under the influence of, testing positive for, or refusing to test for
alcohol or drugs, is a serious offence at Bayside which
can result in
dismissal. Testing positive means having a blood alcohol level of
higher than 0,00% or being tested positive for
dagga.”
10.
What the policy means is that there are three offences relating to
alcohol and drug use. These being
(a) being under the
influence of alcohol or drugs
(b) testing
positive for alcohol or drugs or
(c) refusing to
test for alcohol or drugs. The applicant decided to charge the third
respondent for being under the influence
of alcohol and not for
testing positive for alcohol. These are two different acts of
misconduct under the policy. Testing positive
is defined in the
policy as having a blood alcohol level of higher that 0,00%
11.
The allegation of being under the influence was clearly withdrawn by
Mr Langlois and cannot be argued any more in these proceedings.
12.
The third respondent went for a blood test with a private doctor two
hours after the last test was done by the security. Mr.
Van As
submitted that the test is irrelevant as it was done two hours later.
Dr Wagner filed a report based on the blood test and
the report was
admitted as evidence during the arbitration hearing. The blood test
showed that there was no alcohol in the third
respondent’s
blood. The blood test was done by Dr Bouwer and Partners. In respect
of criminal cases, the blood sample has
to be taken within 2 hours of
the arrest. It was not submitted that this applies in civil matters.
13.
The commissioner considered the evidence of the blood test and found
that:
“
An inference that
could be drawn from the said expert opinion is that the employee
could not be said to have alcohol in his blood
and was therefore not
intoxicated to the extent that the employer does not challenge the
form and content of the expert opinion,
such stands to be admitted as
true to the effect that it presented evidence which stands
un-rebutted by, the employer on the subject.
Accordingly, it is my
finding that the employee was not at fault for the misconduct of
reporting for duty under the influence of
alcohol at the customers
place.”
14.
Mr. Van As submitted that the employee chose not to take the blood
test in the company. The policy allows a person to ask for
a blood
test if he or she disputes the reading of the testing equipment. The
policy does not provide for the total exclusion of
the blood test
taken outside the company. The fact that the third respondent chose
to do blood test outside the company does not
advance the applicant’s
case.
15.
The applicant’s argument centered on the fact that when the
third respondent was tested, there was alcohol found. Be that
as it
may, the results did not show that the third respondent was under the
influence of alcohol. The evidence showed that he tested
positive of
alcohol. The problem with this is that the charge against the third
respondent was not that he had tested positive.
The charge that the
third respondent was facing was not proved and the applicant’s
witness withdrew the allegation of being
under the influence. The
third respondent could not be found guilty of testing positive when
he had not been charged with that
misconduct. I reject the submission
that the commissioner failed to consider relevant evidence. I am not
able to find that the
commissioner committed any gross irregularity
with regard to the first charge.
16.
It was submitted on behalf of the applicant that the third respondent
put the employer’s job in jeopardy and accordingly
the
breaching of trust had been committed. Mr. Kromhout for the third
respondent submitted that there is nothing dealing with the
good
faith in the evidence.
17.
The commissioner dealt with this in his award and found that :
“
The duty of good
faith presupposes conduct which is consistent with honesty or not
being deceptive. Looked at against this broad
categorisation, the
employee’s conduct was such that he submitted to the testing by
the security officer and had been co-operative
in that regard.”
18.
The commissioner further found that:
“
It is my finding
that by seeking a blood test; the employee had demonstrated
substantial compliance with the policy of the client
and made the
results of the said test available to the employer. It is my further
considered view from the aforegoing that the
employee’s
conduct, objectively assessed, does not display any aspect of
deception on his part and as such is not fault for
a breach of good
faith.”
19.
This finding cannot be faulted. The commissioner’s award can be
reviewed if the award is not justifiable for the reasons
given. The
review is process related. It is my view that the commissioner did
not rely on any facts outside the material before
him. I am also of
the view that no material evidence was ignored by the commissioner.
20.
I have already indicated that the third respondent was charged with
one type of misconduct which was withdrawn. The applicant
sought to
argue a case of the misconduct with which the third respondent had
not been charged. I am of the view that the award
is rational and
there is no gross misconduct on the part of the commissioner.
Accordingly, the review should fail.
21.
I see no reason why the costs should not follow the results. I am of
the view that the applicant should have realised that the
charge
against the third respondent was not that he had tested positive but
that he was under the influence of liquor. There was
therefore no
basis for the argument that the commissioner should have taken into
account that the third respondent was tested twice
and the results
were positive. That argument has no relevancy on the charge against
the third respondent. In the result, the following
order is made:
(a). The review
application is dismissed.
(b). The applicant is
ordered to pay the costs.
Justice
Ngcamu AJ
________________
Ncgamu
AJ
Date
of hearing:
12 December 2006
Date
of Judgment:
For
the Applicant:
Adv. M.J.Van As instructed by Anthony Hinds Attorneys.
For
the Respondent:
Adv. E. Krombont instructed by A.J. Stone Attorneys.