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[2012] ZALCCT 18
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Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (C24/2011) [2012] ZALCCT 18; [2012] 12 BLLR 1301 (LC); (2012) 33 ILJ 2985 (LC) (6 June 2012)
Reportable
Of
interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
case
no: C24/2011
In the matter between:
TAXI-TRUCKS PARCEL EXPRESS (PTY) LTD
Applicant
and
NATIONAL BARGAINING COUNCIL FOR THE ROAD FREIGHT INDUSTRY
First Respondent
PETER HEATHER N.O.
Second Respondent
SATAWU obo T CALUZA
Third Respondent
Heard
:
29 May 2012
Delivered
:
6 June 2012
Summary:
Review – LRA s 145 – employee under the
influence of alcohol after having been intoxicated the night before.
Arbitrator
found sanction of dismissal too harsh – replaced
with prospective reinstatement and limited backpay –
effectively four
months’ unpaid suspension. Finding within a
range of reasonable outcomes. Not reviewable.
JUDGMENT
STEENKAMP J
Introduction
The employee, Mr Thaditola Caluza, went to work whilst still under
the influence of alcohol on Monday 3 August 2009. He had had
a lot
to drink the night before at a traditional function. It is common
cause that he did not drink any alcohol on duty or at
the workplace;
but the effects of the previous day’s festivities were such
that, when he underwent a breathalyser test,
his blood alcohol level
was found to be three times over the legal driving limit.
The employee was not a driver. The applicant is an express parcel
delivery company. The employee was employed as a general worker.
On
the Monday in question, he was loading tyres onto trucks.
He was dismissed for being under the influence of alcohol at work.
At arbitration, the arbitrator found that dismissal was too
harsh a
sanction. He ordered the applicant to reinstate the employee, but
limited the amount of backpay. This had the effect
that the employee
had effectively been suspended without pay for four months.
The applicant wishes to have that award reviewed and set aside.
Background facts
The employee was a general worker. He loaded and off-loaded
vehicles, sorted freight, and sometimes accompanied vehicles on
their delivery route (albeit not on the day of the misconduct
leading to his dismissal). At the time of his dismissal, he had
worked for the applicant for between six and seven years and he had
a clean disciplinary record.
On Sunday 2 August 2009 he attended a traditional function. He drank
a lot and asked his brother to take him home at some stage,
although
the festivities were still going strong. The next morning, he
reported for duty. He thought that he had slept off the
excesses of
the night before and he did not think he was still drunk.
During the course of the morning the employee and a colleague sought
to address an unrelated grievance with management and one
of the
company’s employees formed the impression that Caluza was
under the influence of alcohol. He smelt of alcohol and
his eyes
were bloodshot. He was not slurring, had a sensible conversation
with his manager, and he was not stumbling, although
the manager
thought he was “a bit wavy”.
When confronted, the employee explained that he had drunk a lot the
night before. He consented to a blood test. The test showed
that his
blood alcohol level was 0,15 g/100ml.
The applicant’s witnesses testified at arbitration that the
company had a “zero tolerance policy” with regard
to
being under the influence of alcohol at the workplace. Although the
operations manager, Pienaar, testified that this meant
that the
offence would automatically lead to dismissal, the evidence of the
human resources manager, Burger, was somewhat more
nuanced. He said
that the company would have to follow its disciplinary code and that
the circumstances would have to be considered
by the chairperson of
a disciplinary hearing.
The disciplinary code classifies being under the influence of
alcohol as a “grade 3 offence”. The code provides that
a
grade 3 offence “may result in a final warning or dismissal”.
Those offences “
could
result in summary dismissal ...
after a formal disciplinary hearing.” Plainly, contrary to
Pienaar’s understanding,
the misconduct complained of need not
necessarily be visited by a sanction of dismissal; it could lead to
a lesser sanction,
such as the one deemed fair by the arbitrator in
the circumstances of this case.
The arbitrator appreciated this distinction. With regard to the
“zero tolerance approach” he found:
“
I find
this approach to be unfair. A clerk for example would not be a danger
to himself or to others and would not tarnish the image
of the
company as he would seldom, if ever, deal directly with clients or
customers. However this would be totally different for
an individual
who held the position of a driver, a pilot or a managing director.”
The award
Having had regard to the background facts and the principles
outlined in
Sidumo
1
,
the arbitrator found that the employee had committed misconduct,
but concluded:
“
I am
of the opinion that the trust relationship had not been irretrievably
broken down and had the [company] applied progressive
discipline and
[had the employee] been given a lighter sanction this would have been
sufficient to change his behaviour. I have
also considered that the
[employee] did not act with any intent to the detriment of his
employer and showed remorse. The question
to be answered is if the
[employee] was given another chance, would the incident repeat
itself. I am of the opinion this would
not be the case. It is thus my
view that the sanction of dismissal was too harsh and an alternative
sanction short of dismissal
would have sufficed.”
The arbitrator also took into account that there was no evidence
before him that the trust relationship had been irreparably
broken;
and that the employee had apologised and shown remorse.
Review grounds
The applicant raised the following grounds of review in elaboration
of its general submission that the arbitrator’s conclusion
on
sanction i the light of the evidence before him was unreasonable:
The applicant’s disciplinary code. But, as the applicant
concedes, that code merely specifies that being under the influence
of alcohol during working hours
may
lead to dismissal
or
a final warning.
The rule itself is not unfair, contrary to the arbitrator’s
finding; it can be applied in different ways.
The arbitrator did not sufficiently take into account the
importance of the rule with regard to safety.
The arbitrator did not consider the “potential” for the
employee bringing the company into disrepute, should he
have
interacted with customers (although he did not).
The arbitrator did not consider the precedent it would set if the
employee were not dismissed.
The arbitrator did not consider the potential for arm sufficiently.
Having been briefed at a late stage, Mr
Ackermann
elaborated
somewhat on these grounds in his oral argument. He submitted that:
The arbitrator’s findings were not supported by the evidence;
His findings are illogical; and
His findings are misconceived.
Mr
Ackermann
’s main problem with the arbitrator’s
interpretation of the applicant’s zero tolerance policy was
that it did
not accord with the reality. It is so that the branch
manager, Pienaar, testified that this offence would inevitably lead
to
dismissal. But in reality, he argued – and despite
Pienaar’s apparently flawed understanding of the policy –
the applicant would not dismiss an employee who is under the
influence of alcohol as a matter of course.
It is so that the HR manager, Burger, clarified this position
somewhat. However, I do not agree that this in itself renders the
arbitrator’s award reviewable. The applicant still applied the
policy in a way that led to an unfair dismissal in the view
of the
arbitrator. In forming that view, the arbitrator’s own sense
of fairness prevailed, after he had properly considered
the factors
outlined in
Sidumo.
It is not open to this court to
interfere.
Also, with regard to the employee’s job function, I must
incline more to the view of the arbitrator than to that of Mr
Ackermann.
The arbitrator drew a distinction between
different types of job function. That is in accordance with the
legal principles outlined
in our case law. And despite the
applicant’s legitimate concerns about safety, the functions of
a general worker loading
goods simply cannot be equated to that of
the applicant’s drivers in applying its “zero tolerance”
policy with
regard to being under the influence of alcohol at the
workplace.
Legal principles
The application for review – as opposed to appeal – must
be considered against the background of the applicable legal
principles. In this regard, I propose to deal mainly with the
“fairness test” as outlined in
Sidumo
and
subsequent authorities; and with the specific authorities relating
to alcohol-related misconduct.
The fairness test
The arbitrator in
South African Breweries v CCMA & others
2
also found that a sanction of dismissal in an alcohol-related
misconduct matter where the employer had a “zero tolerance”
policy was unfair. He ordered the employer to reinstate the employee
prospectively, coupled with a final written warning. The
effect of
the award was that the employee was suspended without pay for some
four and a half months.
In holding that the arbitrator’s award was not unreasonable,
this court attempted to make sense of the fairness inquiry.
That
discussion is apposite to this case.
In this regard, the following
dictum
of Navsa AJ in
Sidumo
3
is often cited:
“
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.”
But this paragraph must be read in the context of Navsa J’s
earlier discussion:
4
“
It is
a practical reality that, in the first place, it is the employer who
hires and fires. The act of dismissal forms the jurisdictional
basis
for a commissioner, in the event of an unresolved dismissal dispute,
to conduct an arbitration in terms of the LRA. The commissioner
determines whether the dismissal is fair. There are, therefore, no
competing ‘discretions’. Employer and commissioner
each
play a different part. 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 what 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.”
The Labour Appeal Court very recently discussed the
Sidumo
test
in
Wasteman Group v SAMWU & Others.
5
Davis JA confirmed that:
“
The
commissioner is required to come to an independent decision as to
whether the employer’s decision was fair in the circumstances,
these circumstances being established by the factual matrix
confronting the commissioner.”
In my view, as discussed in
South African Breweries
6
,
the commissioner’s view can best be summarised thus: The
employer decides to dismiss. The commissioner conducts an
arbitration
de novo.
In the light of the totality of
circumstances, established by the evidence at arbitration, the
commissioner must then decide
whether the decision to dismiss was
fair. In doing so, it is the commissioner’s own sense of
fairness that must prevail.
There can be no deference to the
employer.
In the course of his argument, Mr
Ackermann
referred me to
the judgment of the Labour Appeal Court in
Samancor Chrome Ltd
(Tubatse Ferrochrome) v MEIBC & others.
7
But that judgment was overturned on appeal by the Supreme Court of
Appeal.
8
And this court needs to bear in mind the following word of caution
sounded by Nugent JA on appeal:
9
“
It is
apparent from the reasons given by the Labour Appeal Court
that it did not appreciate the
limited nature of the question that had been
before the Labour Court –
and hence the limited question that was before
it on appeal. Nowhere in its
reasons is there any express finding that the
award was one that no reasonable
decision-maker could make nor does it
appear by implication. The most
that can be said is that it found that the
arbitrator erroneously
categorised the dismissal – a matter to which I will
return – but error is not
by itself a proper basis for reconsidering an
award. Having found that there
was an error the Labour Appeal Court
said that ‘manifestly, the
question as to whether a dismissal in the
circumstances of the present
dispute, is substantively fair depends upon
the facts of the case’ and
proceeded to consider the facts, reaching the
following conclusion:
‘
In the
circumstances of this case and for the reasons so set out, [Mr
Stemmett] should have considered that the decision to terminate
[Mr
Maloma’s] employment was fair and manifestly fair’.
That approach to the matter
would have been appropriate if the
arbitrator’s award had
been under appeal but not where it was being
subjected to review.”
Dealing with alcohol-related offences
In support of his argument that being intoxicated on duty should be
met with a sanction of dismissal rather than a less drastic
one, Mr
Ackermann
referred to the recent judgment in
Transnet
Freight Rail v Transnet Bargaining Council & others.
10
But that matter concerned the question whether alcohol abuse should
be treated as misconduct rather than incapacity in circumstances
where the employee is not an alcoholic. The main
ratio
for
holding that the arbitrator’s award was reviewable in that
case, was that the arbitrator failed to have regard for
the
principles distinguishing misconduct from incapacity and, more
specifically, that the evidence and common cause facts were
that the
employee in that case was not an alcoholic and did not suffer from
alcoholism. The arbitrator 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.
In the
case before me, the misconduct was treated as such and the only
significant question on review is whether the arbitrator’s
ruling on sanction is sustainable.
There are other reasons why the
Transnet
case is
distinguishable. Firstly, the employee in that case was employed in
a safety critical position which necessitated the
strict application
of the rule against being intoxicated at work. Secondly, a serious
written warning had been issued to the
employee for a similar
offence and that was still valid. Neither of those factors applies
to the employee in this case, although
safety considerations did
play a role – a significant one, Mr
Ackermann
argued.
However, I do not think the safety aspect in the case of a general
worker loading goods can be equated to that of a train
driver, as
was the case in
Transnet.
Some principles relating to alcohol-related misconduct were
nevertheless discussed in
Transnet
and I shall consider those
principles in the context of this case.
Grogan
11
,
in discussing the case of
Tanker Services (Pty) Ltd v Magudulela
12
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.”
In the case before me, the employee was not performing 'skilled,
technically complex and highly responsible tasks’. He
was
loading tyres onto trucks. Evidence was led that forklifts were
being driven around in the same area and that he could inadvertently
have stepped in front of one. Even if this were to be accepted, I do
not think the situation can be equated to the example cited
by
Grogan or to that in
Transnet.
The same holds true for the
factual matrix in
Exactics-Pet (Pty) Ltd v Petalia NO
13
where the employee was a crane driver.
The arbitrator in this case appreciated this distinction and pointed
out that a “zero tolerance approach” could not
be
applied without more to a clerk in the same way as a driver or a
pilot.
Evaluation / Analysis
It is against this background that the court has to decide whether
the conclusion reached by the arbitrator was so unreasonable
that no
other arbitrator could have come to the same conclusion. The court
must bear in mind that, as Waglay DJP recently pointed
out in
The
National Commissioner of the South African Police Service v Myers &
Others
:
14
“
Whatever
one’s personal view may be, the test as set out in
Sidumo
... is whether or not the arbitrator’s decision that dismissal
is an appropriate sanction is a decision that a reasonable
decision-maker could reach.”
And in Myers, having considered the evidence at arbitration, the
learned DJP held:
“
I
cannot accept that the arbitrator’s decision fell outside of
the band of decisions to which reasonable people could come.”
Mr
Ackermann
’s cogent submissions may well have
persuaded another arbitrator sitting as a forum of first instance.
It may be that this
court, sitting in an arbitration or even on
appeal, may have come to a different conclusion to that of the
arbitrator. But his
conclusion, based on his own sense of fairness,
falls within a band of reasonable outcomes. He carefully considered
the factors
outlined in
Sidumo
. He took into account that
progressive discipline in this case may well have had the desired
outcome of correcting the employee’s
unprecedented misconduct.
His conclusion that dismissal was too harsh a sanction under the
circumstances is not one that no reasonable
arbitrator could have
come to.
The arbitrator did find that the “zero tolerance” rule
was unfair; but he did so having regard to the specific
circumstances of this case. Although Burger paid lip service to the
discretion allowed by the applicant’s disciplinary code,
the
way in which it was applied was closer to Pienaar’s
understanding. There is no indication that, in deciding on dismissal
as a sanction, the applicant took the specific circumstances of this
case and the employee’s own circumstances into account.
On the
other hand, that is precisely what the arbitrator did in coming to
the conclusion that he did come to. That was not unreasonable.
With regard to costs, I take into account that the applicant and
SATAWU have an ongoing relationship. The effect of the arbitration
award is also that the employee and the applicant will have to
continue their relationship. In law and fairness, each party should
pay its own costs.
Order
The application for review is dismissed. There is no order as to
costs.
_______________________
Anton Steenkamp
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Adv LW Ackermann
Instructed by Smith
Tabata Buchanan Boyes, Cape Town.
THIRD RESPONDENT:
Adv M Euijen
Instructed by Gray
Moodliar, Port Elizabeth.
1
Sidumo
& another v Rustenburg Platinum Mines & others
(2007) 28
ILJ
2405 (CC);
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC).
2
[2012]
ZALCCT 17.
3
Sidumo
& another v Rustenburg Platinum Mines & others
(2007) 28
ILJ
2405 (CC);
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC)
para [79].
4
Ibid
para [75].
5
(2011)
32
ILJ
1057 (LAC).
6
Supra
para [26].
7
Unreported
(JA 38/2009), 26 November 2010.
8
NUM
& others v Samancor Chrome Ltd (Tubatse Ferrochrome)
[2011]
11 BLLR 1041
(SCA); (2011) 32
ILJ
1618 (SCA).
9
Ibid
para [7].
10
[2011]
ZALCJHB 15.
11
Workplace
Law
p 224.
12
[1997]
12 BLLR 1552
(LAC).
13
(2006)
27
ILJ
1126
(LC).
14
CA
4/09 (unreported), Labour Appeal Court, Cape Town (2 March 2012)
paras [103] – [104].