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[2011] ZALCCT 83
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Transnet Freight Rail v Transnet Bargaining Council and Others (C644/2009) [2011] ZALCCT 83 (4 March 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case
no.:
C644/2009
In
the matter between:
TRANSNET
FREIGHT
RAIL
Applicant
And
TRANSNET
BARGAINING COUNCIL
First
Respondent
M
DOLLIE
N.O.
Second
Respondent
SATAWU
Third
Respondent
L
G
LOUW
Fourth
Respondent
JUDGMENT
STEENKAMP
J:
INTRODUCTION
1.
This
matter concerns the question whether alcohol abuse should be treated
as misconduct rather than incapacity in circumstances
where the
employee is not an alcoholic.
2.
The
applicant seeks an order that
the
arbitration award made by the Second Respondent (the arbitrator)
under the auspices of First Respondent (the bargaining council)
[1]
be reviewed, set aside and corrected. Although the arbitration was
heard by a Tokiso panelist, it was done under the auspices of
the
bargaining council. The applicant seeks to review it in terms of s
145 read with s 158(1)(g) of the Labour Relations Act (Act
66 of
1995).
3.
The
application is not opposed by any other party. Although the third and
fourth respondents (SATAWU and its member, Ms LG Louw)
had appointed
attorneys, those attorneys filed a “notice of non-opposition”
indicating that they abide the decision
of this court.
4.
As
the application is not opposed, the applicant did not seek costs.
GROUNDS
FOR REVIEW
4.
The
grounds of review relied upon by Applicant in its review application
are set out in its founding affidavit and may be summarized
as
follows:
4.1.
Second Respondent committed a gross
irregularity of a material nature in the conduct of the arbitration
proceedings by failing to
have proper regard, if any, for the common
cause facts and relevant legal principles, specifically, by:
4.1.1.
Failing
to have regard for the principles distinguishing misconduct from
incapacity and, more specifically, that the evidence and
common cause
facts were that Fourth Respondent (the employee) was not an alcoholic
and did not suffer from alcoholism. The Second
Respondent committed a
gross irregularity in extending the requirement to treat alcoholism
as a disease (i.e. an incapacity) to
employees who are not alcoholics
and who do not suffer from alcoholism (or any other medical illness)
simply by virtue of the fact
that their misconduct involved alcohol;
4.1.2.
Failing
to properly consider the importance of the rule that Fourth
Respondent had breached and the fact that Fourth Respondent
was in a
safety critical position which necessitated the strict application of
that rule. In assessing the rule Second Respondent
placed too much
emphasis on other less relevant or irrelevant factors;
4.1.3.
Failing
to apply the relevant legal principles with respect to the relevance
of a serious written warning that had been issued to
the employee for
a similar offence and that was still valid;
4.1.4.
Making
the finding that Fourth Respondent at most acted negligently in the
consumption of alcohol the night before she was booked
on duty, which
finding is wholly unreasonable and not logically sustainable.
4.2.
Second Respondent exceeded his powers by
making an award requiring Fourth Respondent to submit to
rehabilitation and to comply with
the company policy. Such an award
is not contemplated in the context of the powers afforded to him in
determining a dismissal dispute.
4.3.
In evaluating the evidence in the manner in
which he did and concluding as he did, for all of the reasons set out
above, Second
Respondent’s decision was one which a reasonable
decision maker could not have made.
MATERIAL
EVIDENCE AND CHRONOLOGY OF FACTS
5.
The
material facts can be summarized as follows:
5.1.
Fourth Respondent was employed by Applicant
from 27 May 2002 until her dismissal on 29 May 2009. At the date of
her dismissal, Fourth
Respondent was employed as a yard official
earning a salary of R10 287, 00 per month.
5.2.
The position of yard official, which
involves marshalling and coupling of trains, is a safety critical
position. Due to the nature
of the work performed the offence of
being under the influence of alcohol at work constitutes serious
misconduct in terms of Transnet’s
disciplinary code.
5.3. On 24 May
2009, being the date upon which she committed the misconduct
resulting in her dismissal, Fourth Respondent
had a valid serious
written warning for being under the influence of alcohol at work
which had been issued on 28 May 2008 and was
valid for twelve months.
5.4. At the
arbitration hearing held on 22 July 2009, Third Respondent (the
employee’s trade union, SATAWU) disputed
both the procedural
and substantive fairness of Fourth Respondent’s dismissal on
the following grounds:
5.4.1. That
Applicant had not afforded Fourth Respondent rehabilitation in terms
of its Employee Assistance
Program (“EAP”);
5.4.2. That
Applicant had applied the sanction of dismissal inconsistently;
5.4.3. That,
in determining the sanction, the chairperson of the enquiry did not
consider all mitigating
factors;
5.4.4. That
the chairperson of the disciplinary enquiry did not apply his mind to
the matter and that the
sanction of dismissal was predetermined.
5.5. In the
arbitration award Second Respondent found that:
5.5.1. There
was no evidence to suggest that the sanction was predetermined or
that the chairperson failed
to apply his mind to the matter;
5.5.2. Third
Respondent’s reliance on inconsistent application of the
sanction of dismissal was unsubstantiated
and therefore unfounded;
5.5.3. The
chairperson of the enquiry was well versed with Applicant’s EAP
and Fourth Respondent’s
problems and could have recommended
counselling as a form of action to address Fourth Respondent’s
misconduct;
5.5.4. The
valid serious written warning was four days short of expiry and
Fourth Respondent had essentially
not been disciplined for 11 months
and 26 days, which indicated that she had taken the warning very
seriously;
5.5.5. Personal
circumstances had led to Fourth Respondent consuming alcohol and
arriving for work under
the influence, including undisputed evidence
that Fourth Respondent had been abused the night before the incident;
5.5.6. Fourth
Respondent had shown remorse for her actions;
5.5.7. As
Fourth Respondent had not been allowed to work on the day of the
incident, neither Applicant nor
its passengers were placed in danger;
5.5.8. Other
options short of dismissal could have been exhausted;
5.5.9. Fourth
Respondent could have been suspended in terms of Applicant’s
policy;
5.5.10. There was no
evidence to suggest that Fourth Respondent could not be trusted or
that her work had been affected and thereby
caused an irretrievable
breakdown in the relationship;
5.5.11. There was no
evidence that Fourth Respondent was incapable of fulfilling her
functions in the position that she had occupied;
5.5.12. Fourth Respondent
was aware of the safety hazards of being under the influence of
alcohol at work;
5.5.13. Fourth Respondent
had approached the chairperson of the disciplinary enquiry previously
regarding personal problems regarding
her in-laws and her possible
transfer to Queenstown; and
5.5.14. Fourth Respondent
had not acted with intent as, at best, she negligently consumed
alcohol the night before she was booked
on duty and accordingly she
did not deliberately flout Applicant’s rules for some or other
personal gain.
5.6. Having
concluded as he did, Second Respondent made an award:
5.6.1. Reinstating
Fourth Respondent into her position;
5.6.2. Ordering
Applicant to pay Fourth Respondent one month’s compensation;
and
5.6.3. Ordering
Fourth Respondent to submit to rehabilitation in terms of paragraph
12 of Applicant’s
substance abuse policy and to comply with
such policy.
RELEVANT
LEGAL PRINCIPLES
The
Standard of Review
6.
In
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others (2007) 28
ILJ
2405
(CC)
the Constitutional Court held that the test to be used when
determining whether an arbitration award would be unreasonable, and
therefore reviewable, is whether the decision of the arbitrator is a
decision “
that
a reasonable decision maker could not reach.”
[2]
7.
In
that case the Constitutional Court found that, for a review to be
successful, it must be established by the Applicant that the
result
of the arbitration award falls outside of a “
range
of reasonableness.
”
[3]
Misconduct,
Gross Irregularity and Acting in Excess of Powers
8.
Matters
may be taken on review in terms of Section 145(2)(a) of the LRA on
the grounds of the arbitrator committing misconduct,
gross
irregularity and/or acting in excess of the powers conferred.
9.
This
court, in the case of
Woolworths
(Pty) Ltd v CCMA & others
[2010] 5 BLLR 577
(LC)
at
paragraphs [19] to [23], in considering the test for review, stated
the following:
“
In
the unreported case of Relyant Retail Limited t/a Bears Furnishers v
Commission for Conciliation, Mediation & Arbitration
& others
(case number JR2841/06) [reported at
[2009] JOL 24327
(LC) –
Ed], this Court held that the function of the court in considering
whether or not to interfere with the arbitration
award on review is
limited to those grounds provided for in terms of
section 145
of the
Labour Relations Act 66 of 1995
, as suffused by the constitutional
standard of reasonableness. The reasonable standard entails the
applicant having to show that
the decision reached by the arbitrator
under the statutory arbitration system is one which a reasonable
decision-maker could not
reach (see Bato Star Fishing (Pty) v
Minister of Environmental Affairs & Tourism
[2004] ZACC 15
;
2004 (7) BCLR 687
(CC); Sidumo & another v Rustenburg Platinum Mines Ltd &
others (2007) 28 ILJ 2405 (CC) [also reported at
[2007] 12 BLLR 1097
(CC) – Ed]). In order to succeed in relying on the grounds set
out in
section 145
the applicant must show that the commissioner:
(i)
committed misconduct in relation to the
duties of the commissioner as an arbitrator;
(ii) committed
a gross irregularity in the conduct of the arbitration proceedings;
or
(iii) exceeded
the commissioner’s powers.
[20]
The court further held in that case that the issue of whether or not
the commissioner committed a gross irregularity or failed
to apply
his or her mind entails a determination as to whether or not the
complaining party was accorded a full and fair hearing
by the
commissioner. A fair and full hearing entails a determination of all
the issues which were placed before the arbitrator
during the
arbitration proceedings. The inquiry in this respect focuses on the
method or conduct of the decision-maker and does
not concern itself
with the correctness of the decision reached by the arbitrator (see
Sidumo at 1179A–C and 1180A–C).
There is however
authority that it is not every irregularity that would constitute
gross irregularity.
[21]
In the Bears Furnishers case, supra, the court held that the
judicial review powers given to the Labour Court is not for
the
purpose of necessarily weighing evidence which was presented during
the arbitration hearing, upon which the commissioner acted
upon in
arriving at his or her conclusion. The enquiry which the court needs
to conduct is whether or not there is the evidentiary
basis for the
conclusion reached by the commissioner. In other words, the duty of
the court in review is to determine whether the
conclusion reached by
the commissioner has its support in substantial and credible evidence
including consideration and appreciation
of the issues arising from
the dispute and the facts...
[22]
In addition… the general rule, as I understand it, is that
the function of a reviewing court in dealing with the complaint
of
gross irregularity is limited to determining whether or not a
commissioner in exercising the powers given to him or her by the
Labour Relations Act did
so within the appropriate sphere of those
powers and whether the conclusions reached in the exercise of those
powers are grounded
on the relevant principle of law and supported by
all the evidence and the material facts which were presented during
the arbitration
proceedings. I may hasten to also say if there is
deviation from the facts or the law it must be of such a material
nature, that
it would amount to a denial of a fair hearing to the
affected party, for that to warrant interference with the award by
the court.
[23]
The question that arises from the above is whether the conclusion
reached by the commissioner falls outside the range of reasonableness
so as to attract interference with the award by the court... The
question to ask in considering the reasonableness or otherwise
of an
award is to determine whether the conclusion of the commissioner is
one which a reasonable decision-maker could not reach
(see Sidumo &
another v Rustenburg Platinum Mines Limited & others
[2007] 12
BLLR 1097
(CC)).”
10.
Ngcobo
J
[4]
, in
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
,
supra
,
considered the duty of commissioners to consider all the material
facts and stated as follows
[5]
:
“
It
is plain … that CCMA arbitration proceedings should be
conducted in a fair manner…Fairness in the conduct of the
proceedings requires a commissioner to apply his or her mind to the
issues that are material to the determination of the dispute.
One of
the duties of a commissioner in conducting an arbitration is to
determine the material facts and then to apply the provisions
of the
LRA to those facts in answering the question whether the dismissal
was for a fair reason….
It
follows therefore that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot in principle
be
said to be fair because the commissioner fails to perform his or her
mandate…This constitutes a gross irregularity in
the conduct
of the arbitration proceedings … And the ensuing award falls
to be set aside not because the result is wrong
but because the
commissioner has committed a gross irregularity in the conduct of the
arbitration proceedings.”
11.
When
considering how to determine whether a commissioner exceeded his or
her powers the Constitutional Court in that case set out
the relevant
legislation as follows:
“
The
question whether a commissioner has exceeded his or her powers within
the meaning of
s 145(2)(a)
(iii) must be determined in the light of
the powers conferred on the commissioners under the LRA. In terms of
s 188(1)(a)
a commissioner is required to determine whether the
reason for dismissal is a fair reason. In terms of
s 188(2)
, a
commissioner is required to take into account the code in considering
whether or not the reason for dismissal is a fair reason.
Schedule 8
to the LRA contains the code in relation to dismissal. Item 1(3)
declares that -
'[t]he
key principle in this Code is that employers and employees should
treat one another with mutual respect. A premium is placed
on both
employment justice and the efficient operation of business. While
employees should be protected from arbitrary action,
employers are
entitled to satisfactory conduct and work performance from their
employees'.
Item
2(1), in turn, provides that '[w]hether or not a dismissal is for a
fair reason is determined by the facts of the case, and
the
appropriateness of dismissal as a penalty'. Item 7 in turn provides
that… [The arbitrator in] determining whether a
dismissal for
misconduct is unfair should consider the factors set out in item 7(a)
and (b).
All
these provisions must be understood in the context of the right to
fair labour practices in s 23 of the Constitution and the
obligation
imposed on a commissioner 'to determine the dispute fairly and
quickly'. In NEHAWU [the Constitutional Court]…
concluded:
'[T]he
focus of s 23(1) is, broadly speaking, the relationship between the
worker and the employer and the continuation of that
relationship on
terms that are fair to both. In giving content to [the right to fair
labour practices], it is important to bear
in mind the tension
between the interests of the workers and the interests of the
employers which is inherent in labour relations.
Care must therefore
be taken to accommodate, where possible, these interests so as to
arrive at the balance required by the concept
of fair labour
practices. It is in this context that the LRA must be construed.'”
[6]
12.
The
Constitutional Court went on to conclude as follows:
[7]
“…
[T]he
award which a commissioner ultimately makes, must be fair to both the
employer and the employee. The LRA regulates unfair
dismissals in
express and detailed terms and provides a code that should be taken
into account by commissioners. And this defines
the powers of the
commissioner in relation to awards that they may make under the LRA.
It follows from this that where a commissioner
makes an award which
is manifestly unfair either to the employer or the employee, the
commissioner exceeds his or her powers under
the LRA. Such an award
falls to be reviewed and set aside under s 145(2)(a) (iii) of the
LRA.”
13.
The
crucial enquiry is whether the conduct of the decision maker
complained of prevented a fair trial of issues.
Ellis
v Morgan
1909 TS 576
Goldfield Investments
Limited and Another v City Council of Johannesburg and Another
1938
TPD 560
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
supra
Telcordia Technologies
Inc v Telkom SA Limited
[2006] ZASCA 112
;
(2007) 3 SA 266
(SCA)
14.
Further,
Navsa AJ stated the following in
Sidumo
and Another v Rustenburg Platinum Mines Limited and Others
,
supra
:
“
To
sum up. in terms of the LRA, a commissioner has to determine whether
a dismissal is fair or not. A commissioner is not given
the power to
consider afresh what he or she would do, but simply to decide whether
what the employer did was fair. In arriving
at a decision a
commissioner is not required to defer to the decision of the
employer. What is required is that he or she must
consider all
relevant circumstances.”
15.
As
set out above, our courts have recognised that a latent gross
irregularity in the conduct of the arbitration proceedings may
occur
to the extent that an arbitrator may mistake or misunderstand the
point in issue thereby failing to afford the parties a
fair trial by
virtue of the arbitrator misconceiving the whole nature of the
enquiry or of his duties in connection with that process.
From the
judgments referred to above, the duties of an arbitrator in respect
of process may be summarised as follows:
15.1.
To apply the law of evidence;
15.2.
To apply the substantive law of dismissal;
15.3.
To apply his or her mind to all materially
relevant factors;
15.4.
To disregard materially irrelevant factors;
and
15.5.
To weigh up all the materially relevant
factors and issues.
16.
In
addition, the judgments referred to above establish that to the
extent that an arbitrator deviates from complying with those
duties,
such deviation must not be of such a nature that it materially
deprives a party of a fair hearing.
Misconduct
or Incapacity
17.
Section
10 (3) of the Code of Good Practice: Dismissal specifically includes
alcoholism as a form of incapacity and suggests that
counselling and
rehabilitation may be appropriate measures to be undertaken by a
company in assisting such employees. In fact,
the requirement to
assist such employees by providing them with treatment has been
widely accepted. However, when an employee,
who is not an alcoholic
and does not claim to be one, reports for duty under the influence of
alcohol, she will be guilty of misconduct.
The distinction between
incapacity and misconduct is a direct result of the fact that it is
now accepted in scientific and medical
circles that alcoholism is a
disease and that it should be treated as such. This has been accepted
by the CCMA and bargaining councils.
See, for example:
Jansen and Pressure
Concepts (2005) 26
ILJ
2064 (BCA)
Naik v Telcom SA
(2000) 21
ILJ
1266 (CCMA)
National Union Of
Metal Workers Of SA on behalf of Williams and Roberson & Caine
(Pty) Ltd (2005) 26
ILJ
2074 (BCA)
18.
In
this regard Grogan states the following in
Workplace
Law
[8]
:
“
Employees
may be dismissed if they consume alcohol or narcotic drugs to the
point that they are rendered unfit to perform their
duties. There
may, however, be a thin dividing line between cases in which alcohol
or drug abuse may properly be treated as misconduct,
and those in
which it should be treated as a form of incapacity. The Code of Good
Practice: Dismissal specifically singles out
alcoholism or drug abuse
as a form of incapacity that may require counselling and
rehabilitation [Item 10(3)]...
It
is clear, however, that in certain contexts being intoxicated on duty
can be treated as a disciplinary offence...
Special
mention is made [in the Code of Good Conduct: Dismissal] of employees
addicted to drugs or alcohol, in which cases the employer
is enjoined
to consider counselling and rehabilitation. The dividing line between
addiction and mere drunkenness is sometimes blurred.
An employee who
reports for duty under the influence of alcohol or drugs may be
charged with misconduct. Whether such an employee
should be
considered for counselling or rehabilitation depends on the facts of
each case. These steps are generally considered
unnecessary if
employees deny that they are addicted to drugs or alcohol, or that
they were under the influence at the time. Rehabilitative
steps need
not be undertaken at the employer's expense, unless provision is made
for them in a medical aid scheme.”
19.
Where
an employee is suffering under incapacity as a result of their
alcoholism, the employer is under an obligation to counsel
and assist
the employee in accessing treatment for their disease. The purpose of
placing such a duty on an employer is based on
the current medical
understanding of alcoholism – that it is a diagnosable and
treatable disease. This disease results in
the incapacity of the
employee.
20.
In
terms of how to deal with the employee, the distinguishing feature in
such cases of alcoholism appears to be, as with all instances
of
incapacity, that the employee is not at fault for her behaviour –
the employee cannot be blamed for their disease and
its impact on
their behaviour and discipline would be inappropriate in the
circumstances.
21.
I
agree with Mr
Cassels
,
however, that the category of misconduct for reporting for duty under
the influence has not been extinguished by the incapacity
classification for employees with alcoholism. An obligation to assist
an employee who does not suffer under such incapacity does
not rest
on the shoulders of an employer. Such an employee is responsible for
their actions and can, and should, be held accountable
for any
misconduct they commit.
22.
It
is not necessary for me to consider how one is to determine whether
an employee has alcoholism as it is common cause and a fact
accepted
by the Second Respondent that the Fourth Respondent is not an
alcoholic and is not suffering from alcoholism.
Fairness
of Dismissal for Misconduct: Under the Influence
23.
Once
a commissioner finds that an employee is not an alcoholic he/she is
required to consider whether a finding of guilt is fair
and whether
the sanction applied by the employer is reasonable and justified in
the circumstances. In order to do this the commissioner
is required
to continue to apply the law relating to misconduct and not that
relating to incapacity.
The
relevance of harm caused by or the potential for harm in cases
involving alcohol related misconduct
24.
Grogan
[9]
,
in discussing the case of
Tanker
Services (Pty) Ltd v Magudulela
[1997] 12 BLLR 1552
(LAC)
in which it was found that the employee, who was found to have been
under the influence of alcohol, committed an offence justifying
dismissal, notes the following:
“
...[I]n
Tanker Services (Pty) Ltd v Magudulela the employee was dismissed for
being under the influence of alcohol while driving
a 32-ton
articulated vehicle belonging to the employer. The court held that an
employee is 'under the influence of alcohol' if
he is unable to
perform the tasks entrusted to him with the skill expected of a sober
person. The evidence required to prove that
a person has infringed a
rule relating to consumption of alcohol or drugs depends on the
offence with which the employee is charged.
If employees are charged
with being 'under the influence', evidence must be led to prove that
their faculties were impaired to
the extent that they were incapable
of working properly. This may be done by administering blood or
breathalyser tests...
Whether
employees are unable to perform their work depends to some extent on
its nature. In Tanker Services, the question was whether
Mr
Magudelela's faculties had been impaired to the extent that he could
no longer perform the 'skilled, technically complex and
highly
responsible task of driving an extraordinarily heavy vehicle carrying
a hazardous substance'. Having found that he could
not safely do so
in his condition, the court concluded that Magudelela's amounted to
an offence sufficiently serious to warrant
dismissal.”
25.
As
to whether an employee, being caught before any serious incident
occurs, should be treated more favourably than another who was
not
caught, the arbitrator in
NUMSA obo
Davids/Bosal Africa (Pty) Ltd [1999] 10 BALR 1240 (IMSSA)
was
of the opinion that the dismissal of a crane driver was justified
despite the fact that he had operated the crane without mishap
for
some time before the level of alcohol in his bloodstream was
discovered to be three times the legal limit for driving a vehicle.
26.
This
finding was confirmed by the Labour Court in
Exactics-Pet
(Pty) Ltd v Petalia NO & other (2006) 27
ILJ
1126 (LC)
where Revelas J stated the following
[10]
:
“
In
the arbitration of NUMSA obo Davids v Bosal Africa (Pty) Ltd [1999]
10 BALR 1240 (IMSSA), the union argued that, although its
member had
operated a heavy duty crane with alcohol in his bloodstream on the
material date, his physical condition did not prevent
him from
performing properly since he had managed to operate the crane for
approximately three hours before his condition was detected.
In
response to this strange submission the arbitrator, Dr Grogan, held
as follows:
'However
the plea that the moral culpability of a person who is drunk in
charge of a vehicle or machinery is diminished because
he failed to
have an accident before being apprehended, is clearly preposterous.
Were that defence to be upheld in traffic courts,
the offence of
driving under the influence of liquor would be rendered
unenforceable, except when the accused had had an accident.'
The
arbitrator's finding in the matter before me, is akin to stating that
the ability of the fourth respondent to work for two hours
without
causing an accident, meant that either he was not drunk or that he
should not be held liable for his state of intoxication.
That is a
logically unsustainable argument.”
27.
Mr
Cassels
submitted that the ruling in
Exactics-Pets
should logically extend to situations where an employee reports for
duty and fully intends to perform their job function but is
prevented
from doing so by a diligent employer. I agree. The fact that the
employee was not allowed to work in his or her intoxicated
state
should not prevent or mitigate the employee’s liability for
their state of intoxication. This is particularly relevant
where, had
the employee actually succeeded with their intention to perform their
job function, their state would have made their
job extremely
dangerous, given the nature of their job function.
Progressive
discipline and factors to consider when determining whether dismissal
is justified
28.
With
regard to sanction, Section 3 of Schedule 8 of The Code of Good
Practice: Dismissal places an expectation on employers to use
corrective and progressive discipline in dealing with the misconduct
of employees. It is also trite that in certain circumstances
dismissal for a first time offence may be appropriate where such
offence is of a serious nature.
29.
In
Sidumo
& another v Rustenburg Platinum Mines Ltd & others [2007] 12
BLLR 1097 (CC)
[11]
the Constitutional Court held that in assessing whether an employer's
decision to dismiss is fair:
“
A
commissioner will take into account the totality of circumstances. He
or she will necessarily take into account the importance
of the rule
that had been breached. The commissioner must of course consider the
reason the employer imposed the sanction of dismissal,
as he or she
must take into account the basis of the employee's challenge to the
dismissal. There are other factors that will require
consideration.
For example, the harm caused by the employee's conduct, whether
additional training and instruction may result in
the employee not
repeating the misconduct, the effect of dismissal on the employee and
his or her long-service record. This is
not an exhaustive list.”
30.
There
may be other relevant factors to consider when determining whether
dismissal is fair.
Edgars
Consolidated Ltd (Edcon) v CCMA & others
[2009] 1 BLLR 56
(LC) at
paragraphs [18] and [19]
;
Woolworths (Pty) Ltd v
CCMA & others
[2008] ZALC 38
;
[2008] 8 BLLR 812
(LC) at paras 10-15.
31.
I
agree with the suggestion made by Mr
Cassels
that in cases involving misconduct for reporting for duty under the
influence of alcohol a commissioner should, in determining
the
fairness of dismissal, consider and weigh against each other (based
on the above), among other things:
31.1.
That
the employee knew of the rule and was aware that breaching it could
result in dismissal;
31.2.
That
the employee wilfully committed the misconduct;
31.3.
The
nature and responsibilities of the employee’s job function;
31.4.
The
basis for the employee’s challenge to dismissal;
31.5.
The
importance of the rule breached;
31.6.
The
principles and necessary application of progressive discipline and
the importance of consistency;
31.7.
The
employee’s disciplinary record, including the presence or lack
of any relevant valid warnings of final written warnings
that may be
in effect;
31.8.
The
harm (or potential to bring harm) as a result of the misconduct.
Job
function and the importance of the rule breached
32.
The
job function of the employee is relevant in determining the fairness
of dismissal in cases dealing with being under the influence
of
alcohol. Where the job is highly skilled, responsible or hazardous or
the offence is committed by a senior employee who should
be beyond
reproach, the courts have found that dismissal for a first offence is
justified.
[Tanker
Services,
supra
.]
33.
It
seems to me that in instances where the job function of an offending
employee is such that misconduct of this nature would be
extremely
dangerous and could result in death, injury or damage, a strict
application of the rule forbidding it must be applied.
Strict
application of such a rule is of importance to the company, its
employees, and public policy. Commissioners, in weighing
up the
evidence before them, must have due regard for the importance of such
a rule and its role in justifying the dismissal of
an employee.
34.
Schedule
8 of The Code of Good Practice: Dismissal specifically provides for
instances where progressive discipline is simply inappropriate
and
dismissal for a first offence is justifiable. A number of cases have
found that in certain circumstances misconduct relating
to alcohol
justifies dismissal.
[Tanker
Services,
supra
.
]
35.
Clearly,
the importance of the rule and the implications of its transgression
must be an essential consideration in determining
whether dismissal
is justified.
36.
A
further consideration ought to be the implications of being lenient
in the application of an important rule and the message such
lenience
sends to other employees regarding the infringement of such a rule.
The need to deter other employees from committing
the same misconduct
is a response to risk management and is as legitimate a reason for
dismissal as a breakdown in trust. In this
regard Conradie JA in
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
& Arbitration & others (2000) 21 ILJ 1051 (LAC)
[12]
stated
the following:
“
A
dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be, a sensible operational
response to risk management in the particular enterprise. That is why
supermarket shelf packers who steal small items are routinely
dismissed. Their dismissal has little to do with society's moral
opprobrium of a minor theft; it has everything to do with the
operational requirements of the employer's enterprise.”
Application
of a Valid Serious Final Written Warning for the Same Type of
Misconduct
37.
The
Labour Appeal Court considered the relevance, application and purpose
of final written warnings in
National
Union of Mineworkers & Another v Amcoal Colliery t/a Arnot
Colliery & Another (2000) 5 LLD 226 (LAC)
.
That case involved an instance of collective misconduct. The
employees who were party to the misconduct had varying levels of
discipline on their file. Those already on final written warnings
were dismissed. The other employees received a lesser sanction
which
was subsequently reduced by one level in terms of the company’s
progressive disciplinary structure (e.g. an employee
with a clean
record was initially given a serious written warning with was later
reduced to a warning). Those who had been dismissed
did not have
their sanctions reduced and the Honourable Court found that this was
fair. In this regard the court was of the opinion
that an argument
that the sanction of dismissal should have also been reduced failed
to consider the fact that the other employees
had disciplinary
records that allowed for a lesser sanction than that initially
imposed. Their records did not constrain the employer
to impose a
particular punishment and nothing else. The employees already on a
final written warning however left the employer
with little choice
but to dismiss them. If their dismissal had been reduced it would
have been to a final written warning and there
would have been no
progression of discipline at all. The Labour Appeal Court was of the
opinion that failure to impose the sanction
of dismissal would mean
that they were not punished for that offence and that further, the
employee's offence was a fairly serious
one and did not justify the
extension of any final warning.
38.
The
implication of this finding, as discussed by Grogan
[13]
is that:
“
...[A]n
employee’s disciplinary record may be taken into account when
considering whether the employee should be dismissed
for a particular
offence. This follows from the requirement that dismissal should be
‘progressive’. An employee on
a final warning for the
same offence will normally be regarded as irredeemable, and dismissal
will be justified if the employee
commits a similar offence during
the currency of the warning.”
39.
In
terms of the relevance of valid written warnings the courts have
accepted that the period of validity of a final written warning
may
differ depending on the gravity of the offence. This is consistent
with the principles of progressive discipline.
CWIU
& another v AECI Paints (Natal) (Pty) Ltd (1989) 10
ILJ
311 (IC)
40.
Generally,
a final written warning valid for 12 months serves as a clear and
strong communication to the employee that their conduct
in this
regard is extremely serious and will not be tolerated by the
employer.
41.
Usually,
the presence of a valid final written warning at the time of the
commission of the same or similar form of misconduct should
be
properly interpreted as aggravating in nature. The principles of
progressive discipline require such a re-offending employee
to
usually be considered irredeemable.
42.
Even
in circumstances where a final written warning or a string of
warnings have expired, a sanction of dismissal may still be
justified. In this regard Nicholson AJ in
Gcwensha
v Commission for Conciliation, Mediation & Others (2006) 27
ILJ
927 (LAC)
stated the following:
[14]
“
Even
in the absence of a valid final written warning an employer is
entitled to dismiss an employee in appropriate circumstances.
It must
also be recalled that there was in existence a written warning dating
from March the previous year with a 12-month duration.
The appellant
has a deplorable employment record and there is a litany of
transgressions to which I have alluded. An employer is
always
entitled to take into account the cumulative effect of these acts of
negligence, inefficiency and/or misconduct. To hold
otherwise would
be to open an employer to the duty to continue employing a worker who
regularly commits a series of transgressions
at suitable intervals,
falling outside the periods of applicability of final written
warnings.
An
employee's duties include the careful execution of his work. An
employee who continuously and repeatedly breaches such a duty
is not
carrying out his obligations in terms of his employment contract and
can be dismissed in appropriate circumstances.
...
I accept that the
purpose of a warning is to impress upon the employee the seriousness
of his actions as well as the possible future
consequences which
might ensue if he misbehaves again, namely that a repetition of
misconduct could lead to his dismissal. That
seems to be the purpose
of the warning issued in October to the appellant. I am of the view
that an employer is always entitled
to look at the cumulative effect
of the misconduct of the employee.”
Negligence,
Under the Influence and Misconduct
43.
Negligence
can be defined as “
a
failure to comply with the standard of care that would be exercised
in the circumstances by a reasonable person.”
[15]
44.
As
is obvious from that definition, there is sometimes an overlap
between poor work performance and negligence. Negligence can be
treated as either incapacity or as misconduct, depending on the
circumstances. The basis for culpability in negligence cases is
the
lack of care and/or diligence accompanying the act or omission. The
test for negligence is an objective one, namely whether
the harm (or
potential harm) was foreseeable and whether a reasonable person would
have guarded against its occurring.
Grogan,
Workplace
Law
, pages 122 - 123
Crown Chickens (Pty)
Ltd t/a Rocklands Poultry v Rieck (2007) 28
ILJ
307 (SCA)
Kruger
v Coetzee
1966 (2) SA 428
(A) at
430E-H
45.
Negligence
does not extend to acts where an individual, knowing full well the
probability of the consequences of their actions and
the dangers in
their behaviour, deliberately and wilfully chooses to behave in such
a manner regardless of the consequences.
APPLICATION
OF THE FACTS TO THE RELEVANT LEGAL PRINCIPLES
Ground
1: Disregard of principles distinguishing misconduct from incapacity
46.
Second
Respondent in his arbitration award found that it was common cause
that Fourth Respondent:
46.1. Was
not an alcoholic;
46.2. Had
reported for work on 24 May 2009 under the influence of alcohol.
47.
It
was common cause on the facts that Fourth Respondent was not
incapable of performing her functions but that she had made herself
guilty of misconduct in presenting herself for duty whilst under the
influence of alcohol.
48.
In
the circumstances, on a proper evaluation of the evidence and on a
proper application of the legal principles distinguishing
misconduct
from incapacity, Second Respondent ought to have determined that
Applicant’s Employee Assistance Programme (EAP)
was not
relevant and Applicant was not obligated to offer Fourth Respondent
assistance though it.
49.
However,
Second Respondent made the following finding:
“
The
evidence of the Applicant was that she had raised her personal
problems with Mr Majola. They were in discussions regarding possible
solutions...Mr Majola as the chair of the enquiry also, was best
placed to understand the situation the Applicant was in and could
have recommended counselling as a form of action to address the issue
given the fact that he was aware of her problems.”
50.
I
agree with Mr
Cassels
that personal problems of employees are
not relevant for determining whether or not an employee is an
alcoholic and the matter
would more properly be treated as one of
incapacity. Alcoholism is a disease. It is leads to incapacity.
Personal issues may exist
that aggravate the disease but an employee
who is not suffering from a disease cannot, because of personal
circumstances, be treated
as though they are.
51.
Second
Respondent’s finding is basically that although Fourth
Respondent does not have a disease amounting to incapacity she
should
be treated as though she does. That approach is not founded in law
and places an unfair burden on the employer. Such reasoning
would
make the distinction between incapacity and misconduct for alcohol
related matters meaningless and the extension of such
reasoning would
result in employers being required to treat all cases involving
employees under the influence of alcohol, as suffering
from
alcoholism, regardless of whether they are actually ill or not.
52.
The
arbitrator’s requirement that Fourth Respondent be afforded
counselling in accordance with the EAP is also inconsistent
with the
underlying principles that determine the application of the EAP -
which is to assist employees suffering from dependency
related
problems.
53.
Without
being insensitive to the personal problems of the employee, it would
be inconsistent with the purpose of Section 10 (3)
for Fourth
Respondent, who is not an alcoholic, to be treated for alcoholism
just because she was having a difficult time at home.
The requirement
to assist employees suffering under such a disease is precisely to
protect genuinely ill employees from being dismissed
for offences
which they may commit through no fault of their own as a result of
such an illness. The implication is that employees
who are not
alcoholics are, in all but the most sinister of situations, in
control of their consumption of alcohol and are fit
to be held
accountable for it.
54.
Second
Respondent’s ruling indicates that he did not appreciate the
purpose of the EAP and illustrates that he failed to appreciate
the
important distinction between misconduct and incapacity in evaluating
employee conduct.
55.
Had
the arbitrator applied the relevant legal principles distinguishing
between misconduct and incapacity, he would have concluded
that
Fourth Respondent was guilty of misconduct and that the EAP was not,
on the facts, an appropriate avenue for dealing with
the matter.
Accordingly, there was no obligation or basis for the employer to
have referred Fourth Respondent to the EAP or to
address the matter
by means of counselling.
56.
In
addressing the factual dispute before him on the incorrect
application of the relevant legal principles, Second Respondent
committed
a gross irregularity of a material nature in the conduct of
the arbitration proceedings, thereby resulting in Applicant not being
afforded a fair hearing at arbitration. For the same reasons, Second
Respondent’s arbitration award amounts to a decision
that a
reasonable decision maker could not make.
57.
Second
Respondent’s award that Fourth Respondent submit to
rehabilitation in terms of the company’s substance abuse
policy
and to comply with that policy is inconsistent with the proven facts
that Fourth Respondent was guilty of misconduct. In
the circumstances
teh arbitrator committed a gross irregularity in the conduct of the
arbitration proceedings and made a decision
that a reasonable
decision maker could not make.
Ground
2: Failure to consider the importance of the rule that had been
breached
58.
As
set out above, it was common cause on the facts that Fourth
Respondent had made herself guilty of misconduct in presenting
herself
for duty whilst under the influence of alcohol.
59.
It
was further common cause that Fourth Respondent was in a safety
critical position which at all times would require the strict
application of the rule that employees may not be under the influence
of alcohol at work.
60.
Fourth
Respondent had already been disciplined in this regard and had a
valid final written warning on file. She had also been counselled
and
educated on the issue and danger of alcohol in the workplace.
61.
The
evidence was that Fourth Respondent was responsible for tasks that
were highly risky. Had Fourth Respondent performed her job
in the
state that she was in, there could have been disastrous consequences
and it had the potential to result in death, injury,
or damage to
company property.
62.
Second
Respondent failed to have a proper appreciation of the importance of
the strict application of that rule in this matter.
Condoning such
behaviour by Fourth Respondent, especially when she already had a
final written warning for the same form of misconduct,
could send a
message to Applicant’s other safety critical employees that the
company will tolerate such behaviour. Mr
Cassels
said that
this is a risk Applicant simply cannot be expected to take. I do not
think that is an unreasonable stance.
63.
I
agree that, in assessing the breach of the rule, the arbitrator
placed too little, if any, emphasis on the importance of the rule
that was breached by Fourth Respondent and too much emphasis on other
less relevant or otherwise irrelevant factors, namely that:
63.1. Fourth
Respondent was not allowed to work on the day of the incident and
thus did not place Applicant
or its passengers in danger. On the
evidence before me, it appears that it would have been extremely
dangerous for Fourth Respondent,
given her position in the company,
to have worked in her condition. The fact that Applicant discovered
Fourth Respondent’s
intoxicated state before she made it to her
work station places an unfair burden on Applicant and sets a
precedent that requires
employers, who wish to send the message that
they will not tolerate employees who are under the influence of
alcohol, to allow
employees suspected of such misconduct to report
for and perform their duties before intervening. Such a requirement
could have
disastrous effects and cannot be said to be in the best
interests of public policy. The
Exactics–Pets
case does
not support the conclusion reached by the Second Respondent in this
regard.
63.2. Fourth
Respondent could have been suspended in terms of the company policy.
In this regard it
is noted that the court in
Gcwensha v CCMA &
others,
supra
, was of the opinion that where a policy
allowed for a certain course of action to be taken for misconduct it
does not follow that
such action must be taken before dismissing an
employee in certain circumstances. Schedule 8 of The Code of Good
Practice: Dismissal
specifically acknowledges that circumstances may
arise where the misconduct of an employee is simply too serious to
justify any
action short of dismissal. It seems to me that Fourth
Respondent’s misconduct in the current case is one such case
that justifies
dismissal. Further, the dismissal of an employee on a
final written warning is consistent with progressive discipline and,
given
the seriousness of the offence, suspension would amount to a
mere slap on the wrist for an offence which on Fourth Respondent’s
own record attracted a final written warning in the first instance.
Any sanction short of dismissal would amount to Fourth Respondent
not
being disciplined at all.
63.3. Fourth
Respondent’s performance had not been affected by her actions.
But the issue before
the Second Respondent was not one of
performance. As discussed above the issue was more properly
classified as one of misconduct
and her performance is an irrelevant
factor. It is pertinent to note that on the day in question Fourth
Respondent’s performance
was indeed affected by her actions –
namely, she was unfit to render her services to Applicant and had to
be sent home.
63.4. Fourth
Respondent was aware of the dangers and safety hazards of being
present at work under
the influence of alcohol. How such a factor
could be considered to mitigate Fourth Respondent’s misconduct
is difficult to
understand. One of the reasons for which Fourth
Respondent’s misconduct ought to be considered so serious as to
warrant dismissal
is precisely that Fourth Respondent knew of the
dangers and the risk to the safety of life and property that
presenting herself
for duty while under the influence of alcohol
imported, and yet she proceeded to do so anyway. Clearly educating
her on the dangers
of such behaviour did not deter her form
committing the misconduct.
63.5. Applicant
had failed to have sufficient regard for the circumstances which led
to the offence
being committed. While Fourth Respondent’s
personal situation may be regrettable, she was more than aware when
she made the
conscious decision to consume alcohol that she was
required to report for duty the following day and that, should she
drink to
excess, she would most likely still be intoxicated at that
time. The company had extended assistance to the employee and had
counselled
her in respect of her family situation and was, at her
behest, looking for a transfer. There is no reason why Fourth
Respondent
could not have sought further assistance from the company.
Despite this, Fourth Respondent chose of her own free will and
volition
to drink to excess and to report for duty under the
influence.
64.
It
is clear that in assessing the matter as he did, Second Respondent
disregarded relevant evidence and had regard for irrelevant
considerations and thereby made an award that was inappropriate on
the facts and which was one that a reasonable decision maker
could
not make. In doing so, Second Respondent was also guilty of
committing a gross irregularity of a material nature in the conduct
at the arbitration proceedings which has resulted in Applicant not
being afforded a fair hearing.
Ground
3: Failure to apply relevant legal principles in respect of the
serious written warning
65.
I
also find that the arbitrator misdirected himself in concluding that,
as Fourth Respondent was four days short of the expiry of
a final
warning for similar misconduct and that, as Fourth Respondent had not
been disciplined for 11 months and 26 days for similar
misconduct,
she had taken the warning very seriously, which was a positive factor
in favour of her receiving a lesser sanction
than dismissal. The fact
that such a serious warning would expire in a few days cannot
mitigate the employee’s repeated misconduct
by showing that she
adhered to the rules for a period just short of the period of the
warning’s validity.
66.
Such
an application of a valid final written warning is inconsistent with
the principles of progressive discipline and the decision
in
National
Union of Mineworkers & Another v Amcoal Colliery t/a Arnot
Colliery & Another
,
supra
.
Failing to apply the sanction of
dismissal in these circumstances has the result of being no
punishment at all and renders progressive
discipline meaningless,
which is untenable - particularly in a situation involving serious
misconduct.
67.
I
am persuaded that Second Respondent’s analysis of both the
relevant legal principles and the facts in this regard constitutes
a
material gross irregularity in the conduct of the proceedings, which
has resulted in Second Respondent making a decision that
a reasonable
decision maker could not make.
68.
A
reasonable decision maker would have determined that the fact that
Fourth Respondent did not transgress the rule for almost 12
months
was proof that:
68.1. She
knew that such misconduct was considered to be extremely serious by
Applicant and that she
faced dismissal, should she commit such an act
again;
68.2. She
was not an alcoholic and was not suffering under any incapacity (as
is common cause).
69.
By
failing to evaluate the evidence relating to the valid serious
written warning in accordance with generally accepted legal
principles,
Second Respondent committed a gross irregularity in the
conduct of the arbitration proceedings which precluded Applicant from
having
a fair hearing at arbitration. Furthermore, Second
Respondent’s flawed evaluation of the evidence pertaining to
the serious
written warning resulted in Second Respondent making a
decision that a reasonable decision maker could not make in the
circumstances.
Ground
4: Fourth Respondent at most acted negligently in the consumption of
alcohol the night before she booked on duty
70.
It
is not logically sustainable for Second Respondent to have concluded
that Fourth Respondent, in consuming alcohol the night before
she
booked on duty, at most acted negligently. Fourth Respondent at all
relevant times knew that she had to report for duty the
next morning
and that if she consumed sufficient quantities of alcohol that night
she would still be under the influence of alcohol
when she was
required to report for duty. Furthermore, Fourth Respondent knew when
she reported for work on 24 May 2009 that the
probability existed
that she was still under the influence of alcohol.
71.
The
common cause facts are not consistent with Second Respondent’s
finding that Fourth Respondent at most acted negligently.
Second
Respondent’s finding is also inconsistent with general
principles of law relating to negligence and culpability.
72.
Second
Respondent’s failure to apply the relevant legal principles
properly or at all and to have proper or any regard for
the common
cause facts amounts to a gross irregularity in the conduct of the
arbitration proceedings which has resulted in Applicant
being refused
a fair hearing. Furthermore, for the same reasons Second Respondent
made a decision that a reasonable decision maker
could not make.
Ground
5: Second Respondent exceeded his powers
73.
Second
Respondent directed that Fourth Respondent report to rehabilitation
in terms of paragraph 12 of Applicant’s Substance
Abuse Policy
and that Fourth Respondent must comply with such policy. I agree that
in making that award, Second Respondent exceeded
his powers in that
Second Respondent was tasked with determining the unfair dismissal
dispute on the basis of whether Fourth Respondent’s
dismissal
by Applicant was procedurally and/or substantively unfair. Although
an arbitrator may make any appropriate arbitration
award in terms of
the LRA, the award made by Second Respondent that Fourth Respondent
submit to rehabilitation and comply with
the relevant policy is not
contemplated in the context of the powers accorded to him in
determining a dismissal dispute. In granting
the award that he did,
Second Respondent descended into the realm of the employment
relationship not covered by his terms of reference.
Second Respondent
was tasked to determine the fairness of the dismissal dispute. Second
Respondent has granted an order instructing
the parties to
participate in a process within an ongoing employment relationship in
circumstances where that process has no application
on the common
cause facts presented to Second Respondent.
74.
The
award directing that Fourth Respondent subject herself to
rehabilitation is wholly inconsistent with the proven facts that
Fourth Respondent committed misconduct.
CONCLUSION
75.
For
these reasons, the award must be corrected and set aside. It would
serve no purpose to refer it back to the bargaining council
for an
arbitration
de novo
.
76.
Given
that the respondents abide the decision of the court, the applicant
did not pursue its prayer for costs.
77.
I
order as follows:
77.1.
The
arbitration award made by Second Respondent under the auspices of
First Respondent dated 29 July 2009 is reviewed and set aside.
77.2.
The
award is replaced with the following: “The dismissal of the
employee (the fourth respondent) was fair.”
77.3.
There
is no order as to costs.
STEENKAMP
J
Date
of hearing:
2
March 2011
Date
of judgment:
4
March 2011
For
the applicant:
G
J Cassells (Maserumule Inc)
[1]
Case
number BC.SATAWU/TFR(SD)NCP/10595 (Tokiso case reference no.
Tokiso/T9/109) dated 29 July 2009
[2]
Para
[110]
[3]
Para
[119]
[4]
As
he then was
[5]
Paras
[267] – [268]
[6]
Paras
[269] – [271]
[7]
Paras
[272] – [275]
[8]
pp
226 and 266
[9]
Workplace
Law
p
224
[10]
At
1131
[11]
Para
[72]
[12]
Para
[22]
[13]
Dismissal
pp
100-101
[14]
At
pp 932-933
[15]
Grogan,
Worplace
Law
p
122