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[2012] ZALCJHB 184
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African Explosives Ltd v Maake and Others (JR1727/09) [2012] ZALCJHB 184 (23 October 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR1727/09
In the matter between
AFRICAN EXPLOSIVES LTD
..........................................................................
Applicant
and
MAAKE, FRANCIS NO
.......................................................................
First
Respondent
NATIONAL BARGAINING COUNCIL
FOR THE CHEMICAL INDUSTRY
.................................................
Second
Respondent
SACWU obo MOKOENA, GIFT THABO
...........................................
Third
Respondent
MOKOENA, GIFT THABO
...............................................................
Fourth
Respondent
Heard: 23 October 2012
Delivered: 23 October 2012
Summary: Review application - sanction challenged - application
dismissed
_____________________________________________________________
JUDGMENT
_____________________________________________________________
COETZEE, AJ
This matter is between African Explosives Ltd, the former employer
("the Employer"), and Mr Gift Mokoena, the former
employee
who is the fourth respondent, and others.
This is an application for the review and setting aside of an
arbitration award in terms of which the Commissioner held the
dismissal of Mr Mokoena to be substantively and procedurally unfair
and ordered the Employer to reinstate him with full retrospective
effect. There is also a second application, and that is for
condonation for the delay in filing the answering affidavit on
behalf of Mr Mokoena.
It is not necessary to deal with the condonation application in
detail as the employer did not actively oppose the application.
There are a few aspects that need to be dealt with though.
Mr Mokoena is an individual who was represented by his union, who in
turn instructed attorneys to act on behalf of both the union
and Mr
Mokoena. The union is the third respondent in the application.
From the papers, it appears that there was a dispute between the
union and its then attorneys about fees relating to previous
or
ongoing matters. That dispute had continued for a while. During the
period of the dispute, this matter was launched and served
on the
union, who then handed the matter to the same attorneys that it
normally instructed and with whom they had the fee dispute.
It is alarming that the union then appeared to have left the matter
in the hands of the attorneys well knowing that the attorneys
were
refusing to do any further work until the fee dispute had been
resolved. One would have expected the union not to do so,
or to
instruct somebody else, or to make sure that some steps were taken
in order to protect the rights of its member as well
as its own
rights.
This is not a case where the union can blame its attorneys for
negligence because it well knew there was a dispute, and that
the
attorneys would do nothing at the time when they were instructed in
this matter.
There is also a big question-mark in what exactly the union did in
order to pursue the matter to resolve the issue with its attorneys.
There is nothing by way of any letters to support their contention
about the dispute and had it not been for the fact that it
was an
individual represented through the union who instructed the
attorneys, I would have declined this application for condonation.
The union and its member are saved by the fact that it was an
individual who did not know any better, and who left the matter
in
the hands of its union. Having said that, the application for
condonation is granted.
The employer dismissed the employee after the employee on two
occasions during November and December tested positive when
undergoing
a test for alcohol. The results exceeded 0%.
The employer's policy refers misconduct when being "under the
influence". The employer regards any alcohol in the blood
when
tested as being under the influence. The Union challenged the
employer on whether the employee was under the influence or
the
results merely exceeded 0%. At the disciplinary enquiry, the
employee admitted contravening the policy. There was no evidence
that the employee was actually under the influence.
The employee testified that after the first incident, he informed
his supervisors that he had a drinking problem, but nothing
came of
it. The employer through one witness denied the report but did not
call the second person to whom the report could have
been made. The
report remains in dispute.
The Employee also stated that he had been drinking the previous day
until 17h00 and did not believe that upon reporting for duty
the
next day, he would still register alcohol content in his blood.
The arbitration award of the Commissioner is somewhat peculiar in
the sense that there is a finding that the rule was breached
but
then a finding that substantively the dismissal was still unfair.
Normally, when a dismissal is held to be substantively
unfair, it
follows, logically, from a finding that the rule was not breached,
or there was no rule, or there is something wrong
with the substance
of what the employee was charged with.
The only logical way to interpret this award is that there was a
finding of a breach of a rule and such finding by the employer
was
fair, but that the sanction was found to be unfair. The Commissioner
agreed that the employer in this regard acted fairly
and the
Commissioner arrived at the same finding.
The ultimate finding of the Commissioner that the dismissal was both
procedurally and substantively unfair can only relate to
the
fairness of the sanction that the employer imposed.
It appears from the heads of argument that it was to some extent
common cause between the parties that what really was in issue
in
this case was only the sanction. The employer challenged the finding
of the Commissioner that the dismissal was unfair in
respect of the
sanction.
The employer criticised the Commissioner for either not giving
sufficient consideration to or to completely ignore two material
aspects when deciding on an appropriate sanction. The first is the
policy on page 37 of the papers. Paragraph 8.2 of the policy
states
that a first breach of the policy may lead to dismissal. This at
least is a recommendation of dismissal; and secondly,
that the
employer consistently applied dismissal for any breach of this
policy.
The employee's representative argued that the sanction imposed by
the Commissioner was one that a reasonable decision maker could
have
made. He referred to the arbitration award. On page 158 of the
record, the Commissioner deals with the various considerations
in
applying an appropriate sanction in this matter. The Commissioner
made the following observations:
‘
Taking
into consideration the circumstances and environment under which the
applicant was working, the rule which the applicant
has breached, it
is an important rule as failure to obey it might result in him being
a danger to himself and others. But that
did not prevent the
respondent from giving him a second chance by taking him for
rehabilitation and see whether on his return the
applicant will
repeat the same misconduct. The respondent has failed to do so,
despite being requested. Even if the rules state
that you must
declare your condition before coming to work, in the case of the
applicant it was going to be difficult as he was
under the impression
that if he had stopped drinking at 17:00 there would be no side
effect. I am mindful of the fact that ignorance
of the law is no
defence in our law, but each case should be treated on its own
merits.’
This reasoning indicates that the Commissioner in fact had regard to
the working conditions in the workplace; the danger to the
individual himself and the danger to others. The Commissioner then
also took into account the three years that the employee had
been
with the employer, which is a reasonably long period of employment
and the consideration that the employee should be treated
with
leniency. Considering the totality of the circumstances, the
Commissioner arrived at the conclusion that dismissal was too
harsh
a sanction under these circumstances.
The approach to determine whether this finding is one that a
reasonable Commissioner could not have made must take into account
the broad range of what could have been reasonable. I am not
persuaded that the finding that this Commissioner has reached is
one
that a reasonable Commissioner could not have made.
I believe that costs should follow the result.
I find that the finding is, in fact, one that a reasonable
Commissioner could have made. I make the following order:
The condonation application is granted.
The application is dismissed with costs.
_____________
Coetzee, AJ
Acting Judge of the Labour Court
Appearances:
For the Applicant: Mr. D Cithi
Of Perrott Van Niekerk Woodhouse Matyolo Inc
For the Respondent: Adv D Brown
Instructed by Chris Billings Attorneys