About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2010
>>
[2010] ZALCJHB 1
|
|
National Union Of Mine Workers and Another v Commissioner For Conciliation, Mediation & Arbitration and Others (C23/08) [2010] ZALCJHB 1 (23 April 2010)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: C23/08
IN THE MATTER
BETWEEN:
NATIONAL
UNION OF MINE
WORKERS 1
ST
APPLICANT
JAN
JAPPIES 2
ND
APPLICANT
AND
COMMISSIONER
FOR
CONCILIATION, 1
ST
RESPONDENT
MEDIATION &
ARBITRATION
COMMISSIONER
SEELE MOKOENA
N.O 2
ND
RESPONDENT
HOTAZEL
MANGANESE
MINE 3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI J
INTRODUCTION
[1] This is an
application to review and set aside the arbitration award of the
second respondent, the commissioner, which was issued
under case
number NC1798/07 dated 11 December 2007, and in terms of which the
commissioner found the dismissal of the second applicant
to have been
both substantively and procedurally fair.
[2] The parties have also
applied for the condonation of the late filling of the review
application and the answering affidavit
respectively. At the
beginning of the hearing of this review the parties indicated that
they had agreed not to oppose each others
condonation application. I
see no reason why the late filling of the respective parties’
papers should not be condoned.
BACKGROUND
[3] The material facts in
this matter are not in dispute. The first applicant (the applicant)
who was prior to his dismissal employed
by the third respondent was
dismissed after he was found to have been under the influence of
alcohol during working hours. On the
day in question the applicant
was confronted by one of the supervisors and required to undergo an
alcohol level testing because
he suspected him of being under the
influence of alcohol. The applicant refused to undergo the test and
proceeded to his work,
underground.
[4] The applicant was
taken out of his workplace by one of the security officers who
subjected him to alcohol level test. The results
of the test were
positive and the applicant was accordingly charged with being under
the influence of intoxicating liquor.
[5] The applicant was
thereafter dismissed for that misconduct. Being unhappy with the
outcome of the disciplinary hearing the applicant
referred an alleged
unfair dismissal dispute to the Commission for Conciliation,
Mediation and Arbitration (the CCMA). As indicated
in the
introduction the commissioner found the dismissal to have been fair
and dismissed the applicant’s claim.
[6] The applicant did not
deny having been confronted by one of the supervisors and been
accused of smelling alcohol. He testified
that the smell of alcohol
was because he had taken alcohol the previous night.
THE ARBITRATION
AWARD AND THE GROUNDS FOR REVIEW
[7] In arriving at the
decision that the dismissal of the applicant was fair the
commissioner reasoned that the applicant had breached
a rule
prohibiting him from attending at work whilst under the influence
alcohol. The commissioner arrived at that conclusion after
having
regard to both the oral and documentary evidence before him. As
concerning the issue of whether the breathalyzer worked
properly on
that day the commissioner found that on the balance of probabilities
it worked well supported in particular by the
fact that it was not
disputed that the applicant smelled alcohol on that day.
[8] As concerning the
inconsistent application of the discipline regarding the
transgression for which the applicant was charged
with, the
commissioner seems to have accepted that other employees who were
previously charged with the same transgression were
not dismissed. He
however did not this to constitute unfairness because those cases
occurred prior to the amendment to the policy
regarding the subject
matter. The commissioner found that the policy amended to address the
inconsistency that existed between
the policy and the disciplinary
code which the first applicant had complained about.
[9] The applicants in
their founding affidavit raised several grounds of review. They
contended that the commissioner committed
a gross irregularity. They
contended that the commissioner committed a gross irregularity; his
arbitration award was unreasonable
and unjustified. They further
contended that the arbitration award was reviewable in terms of s 145
of the LRA for the following
reasons:
1.
The commissioner committed gross
irregularity in accepting that the
“old” disciplinary code or alcohol policy amendments were
communicated to the applicant.
2.
The commissioner failed to consider
whether or not it was fair of the
fair of the respondent to have two contradictory policies regarding
the issue of alcohol.
3.
It was unreasonable of the commissioner
to apply the disciplinary
policy over and above the alcohol policy.
4.
It was unreasonable for the commissioner
to find that the
relationship between the applicant and the respondent had broken
down.
5.
The commissioner irregularly deferred
to the disciplinary code and
the sanctioned imposed by the respondent.
6.
The commissioner failed to consider
mitigating factors in confirming
the dismissal of the applicant.
7.
The commissioner failed to apply
his mind to the inconsistent
application of the disciplinary sanction imposed on the applicant.
[10] In the summary
affidavit the applicants raised further criticism against the
approach adopted by the commissioner in arriving
at the conclusion
the dismissal was fair. This includes the criticism that once a plea
of guilty was made by the applicant there
was no need to call witness
to testify for the applicant. The other concerns the alleged rigidity
in the application of the policy
on sanction, the unreasonable
finding on the issue of intoxication, misconstruing of the plea of
guilty and the alleged no consideration
of the provisions of Schedule
8 of the LRA.
EVALUATION
[11] The complainant of
the applicant that the commissioner deferred to the sanction imposed
the respondent is an issue which was
addressed in clear term by the
Constitutional Court in the
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC).
The notion
that the commissioner of the CCMA in determining the fairness of a
dismissal should defer to the decision of the employer
was propounded
by the Supreme Court Appeal in the
Rustenburg Platinum Mines Ltd
(Rustenburg Section) v Commission for Conciliation, Mediation &
Arbitration & Others
2007 (1) SA 576
(SCA); (2006) 27 ILJ 2076
(SCA),
a case which was subsequently overruled by the
Constitutional Court in
Sidumo.
The ratio of that
decision is that the reasonable employer test does not apply in our
law. Therefore a commissioner’s
award that defers to the
decision of employer is reviewable.
[12] The test to apply in
considering applications review of CCMA arbitration award is that of
a reasonable decision maker. The
enquiry to be conducted in applying
the reasonable decision maker test is that of determining whether or
not the conclusion reached
by the commissioner is one which a
reasonable decision maker could not reach.
[13] The approach adopted
in
Sidumo
was followed with approval in
Palaborwa Mining Co
Ltd v Cheetam and Others (2008) 29 ILJ 306 (LAC),
the case whose
facts are similar to those of the present case in many respect.
Similar to the present case the employer in
Phalaborwa
had a
policy governing the employees who around to be under the influence
of alcohol at work. In terms of that policy an employee
who was found
to be under the influence of alcohol of more than 0.05 gram of
alcohol per 100 mi of blood while on duty may be dismissed
for a
first offence. It was found in that case that the employee was aware
of the policy. The employee, who was the company secretary,
was
subjected to a random alcohol test at the main entrance to the
employer which was a mining company. His blowing into an alcohol
meter indicated that he was probably under the influence of alcohol.
The was thereafter taken to a security control room for an
alcohol
test which showed that he had 0.115 gram per 100 ml in his blood. A
further test was taken 20 minutes later, showed a reading
of 0.095
gram per 100ml. in the same was as is the case in the present instant
the employee admitted having consumed alcohol the
previous night. The
commissioner, having found the dismissal of the employee to have been
substantively and procedurally fair,
confirmed the dismissal. The
decision of the commissioner was confirmed on appeal by Labour Appeal
Court.
[14] In concurring with
the conclusion reached by Willis JA, in
Phalaborwa
, Patel JA
had the following to say about the implications of
Sidumo
:
[13] Sidumo enjoins a
court to remind itself that the task to determine fairness or
otherwise of a dismissal falls primarily within
the domain of the
commissioner. This was the legislative intent and as much as
decisions of different commissioner may lead to
different results, it
is unfortunately a situation which has to be endured with fortitude
despite the uncertainty it may create.
I have to remind myself that
the test ultimately is whether the decision reached by the third
respondent is one that a reasonable
decision maker could reach at all
in the circumstances. On this test I cannot gainsay the decision of
the third respondent.”
Earlier in the same
judgment the Learned Judge had the following regarding the issue of
the sanction imposed by the commissioner:
[12] I must add that
the question of an appropriate sanction to be visited on an employee
who is found to be intoxicated is not
without its own difficulties.
Post the Sidumo judgment, a court has constantly to remind itself
that in assessing the reasonableness
or otherwise of a decision of a
CCMA commissioner. A court sitting on review may arrive at a
different decision or finding to that
reached by the commissioner.”
The above resonate with
what was said in
Sidumo
by Navsa AJ, in the middle of
paragraph [75] when said:
“
The CCMA
correctly submitted that the decision to dismiss belongs to the
employer but the determination of its fairness does not.
Ultimately,
the commissioner’s sense of fairness is wht must prevail and
not the employer’s view. An impartial third
party determination
on whether or not a dismissal was fair is likely to promote labour
peace.”
[15] The only conclusion
to reach, based on the above legal; analysis, is that I have no
option but to disagree with the contention
of the applicants that the
decision of the commissioner is unreasonable. In addition the reading
of the arbitration award doe not
support the applicants contention
that the commissioner deferred to the decision of the respondent. In
determining the fairness
of the of the dismissal the commissioner, as
he was entitled to and being the only person in law to do so,
considered and applied
his mind to the evidence and the facts before
arriving at the conclusion that the dismissal was for a fair reason.
In arriving
at his conclusion as he did the commissioner reasoned, at
paragraph [28], of the arbitration award as follows:
“
[28] Although
the applicant disputed knowledge of such amendments, particularly
through Sekgeri, who testified that if the changes
were communicated
to the union, he would have informed its consistency. By his own
admission, the applicant testified that he was
aware that he was
aware that he was not suppose to come to work while under the
influence of alcohol. Sekgeri testified that he
was involved in many
cases where employees were charged for being under the influence of
alcohol, referring to incidents that took
place before the applicant
was dismissed. The applicant pleaded guilty at the enquiry as he
admitted to Pedro that he smelled of
alcohol and that he drank brandy
the previous evening. If the smell of alcohol, it most probably that
he had some degree of alcohol
in his system and this may as well
authenticate the working conditions of the breathalyzer which
detected this through his breath.
It is against this background that
I find that the applicant breached the workplace rule regulating the
conduct of which he was
dismissed.”
[16] It is also in my
view that the commissioner cannot be faulted for unreasonableness in
as far as the applicant’s compliant
regarding the inconsistency
in cases of dismissal does not apply as a matter of rule but rather
as part of the assessment of the
fairness of the dismissal. It
therefore means, in terms of the principle enunciated earlier in this
judgment, it is only the commissioner
and no one else who has to
determine the impact of the inconsistent application of the
discipline of the fairness of the dismissal.
[17] In the present
instance it is clear from the reading of the award that the
commissioner applied his mind to the issue as was
raised by the
applicant and found that whilst a different approach was previously
adopted by the respondent in dealing with similar
cases, that
approach changed with the amendment to the policy. In this respect
the commissioner found that the policy was amended
after the first
applicant has raised its concerns regarding the inconsistency in the
application of the policy. The amended policy
introduced a zero
tolerance to those who are fond to be under the influence of alcohol
at work. The commissioner found that on
the balance of probabilities
the employee was aware of the rule for which he was accused of having
breached.
[18] Turning to the issue
of gross irregularity, it is essential for the applicant, in order to
succeed with the complaint of gross
irregularity, to show that he or
she has been denied a fair hearing due to the manner in which the
commissioner conducted the arbitration
proceedings. It is apparent
from the reading of the award that the commissioner applied his mind
to all the relevant facts and
0.arried at the conclusion that the
dismissal was for a fair reason after taking into account the
totality of the evidence and
the circumstances of the case. The
commissioner was in this case dealing with an employee who initially
was told to undergo alcohol
test because he smelled alcohol, an issue
he never denied. He was defiant and persisted ingoing underground
even when he was told
not to do that after it was discovered that he
smelt alcohol.
[19] In my view, in the
light of the above the applicants’ application stands to fail.
The first applicant has however an
on going relationship with the
respondent and therefore I am of the view that it would not be proper
to allow the costs to follow
the results.
[20] In the premises the
following order is made:
1.
The application is dismissed.
2.
There is no order as to costs.
Molahlehi J
Date of the hearing:
28 January 2010
Date of Judgment
23 April
2010
Representation:
For the
applicant:
Adv N Cloete
Instructed by:
Neville Cloete Attorneys
For the
respondent: Professor
H Pienaar
Instructed
by:
Nkaiseng Chenia
Baba Pienaar Swart Inc