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[2009] ZALCD 11
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Unitrans Fuel And Chemical (Pty) Ltd v Naidoo and Others (D197/04) [2009] ZALCD 11 (14 May 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO: D197/04
DATE
:14
MAY 2008
NOT
REPORTABLE
In
the matter between
UNITRANS
FUEL AND CHEMICAL (PTY)
LTD APPLICANT
and
N
N NAIDOO
FIRST
RESPONDENT
R
NAIDOO SECOND
RESPONDENT
THE
NATIONAL BARGAINING COUNCIL
FOR
THE ROAD FREIGHT
INDUSTRY THIRD
RESPONDENT
JUDGMENT
14
May 2008
PILLAY
D, J
This is an
application to review and set aside the award of the second
respondent Commissioner. The record in the review is
deficient
in several respects. However, the Arbitrator has recorded the
material evidence sufficiently to enable the Court to come
to a final
decision. Furthermore, the ground of review is limited to the
sanction imposed on the first respondent employee.
The
issue before the Commissioner was whether the employee was under the
influence of alcohol and whether his blood alcohol count
had exceeded
the legal limit. The Commissioner found that the employee was
not under the influence of alcohol. In coming
to that
conclusion the Commissioner took into account all the material
evidence before him, including reports of the employee’s
conduct and demeanour at the time when he was tested
[1]
.
Although
his breath had a distinct smell of alcohol his eyes were watery, his
speech normal, his stance steady and his gait sure.
He appeared
confused, frightened, but polite and co-operative. He submitted
willingly to the test. The Commissioner
also found that the
employee had a blood alcohol level of 0,55, which an hour later fell
to 0,45.
The
applicant alleges that the Commissioner failed to take into account
that a blood alcohol level of 0.55 or 0.45 impaired a driver’s
reaction time, even though it did not appear that he was under the
influence of alcohol. That is the evidence the applicant
alleges the Commissioner ignored. Consequently he had failed to apply
his mind to the evidence when imposing a sanction of a warning,
valid
for six months.
That
a driver’s reaction times might be impaired was not the only
consideration in all the circumstances of this case.
The other
circumstances which the Commissioner took into account include those
set out at paragraph 8 of the award. They
are the personal
circumstances of the employee, his omission to appreciate that he was
consuming alcohol (he believed that he was
taking medication) and
that he was remorseful when he tested positive for the alcohol.
The
Commissioner also took into account the circumstances in which the
offence was committed, and these circumstances are enumerated
at
paragraph 8.3 of the award. A particular fact that influenced
the Commissioner was that the employee was not provided
with
comfortable sleeping facilities; that he consumed what he believed
was medication to enable him to sleep; that the bottle
containing the
substance consumed did not reflect that it had alcohol, and the
supervisor allowed the employee to drive the vehicle
back to Durban
after testing. That suggested that the relationship had not
broken down.
The
applicant is not correct in its submission that the Commissioner did
not take into account the evidence of the so-called expert
on alcohol
testing. It is manifest from the award that the Commissioner
did take into account all the material facts, including
the evidence
of Mr Hayes. That he drew a different conclusion or
different inferences than those sought by the applicant
does not
render this award reviewable.
In
the circumstances the application for review is dismissed with costs.
____________
Pillay
D, J
Date:
8 October 2008
APPEARANCES
ON
BEHALF OF APPLICANT
: ADV R SEGGIE
instructed by Tomlinson
Mnguni
James
ON
BEHALF OF RESPONDENTS : MR
B PURDON- Brett Purdon Attorney
[1]
Page 63 of the Pleadings Bundle