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[2014] ZALCJHB 14
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XStrata Coal South Africa v Commission for Conciliation Mediation And Arbitration and Others (JR 90/2012) [2014] ZALCJHB 14 (7 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 90/2012
DATE:
07 FEBRUARY 2014
REPORTABLE
In
the matter between -
XSTRATA
COAL SOUTH AFRICA
…..........................................................
Applicant
And
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
.................................................
First
Respondent
COMMISSIONER
JACOBUS DELPORT
...............................
Second
Respondent
NATIONAL
UNION OF MINE WORKERS
...................................
Third
Respondent
ABEL
NKOSI
..................................................................................
Fourth
Respondent
Date
of hearing: 16 August 2013
Date
of judgment: 07 February 2014
Summary:
Review application. Arbitration award reviewed- Commissioner failed
to appreciate the issue before him. Commissioner assumed the
case
concerned proof that employee was unable to perform his duties due to
alcohol intoxication. Charges against the employee concerned
breach
of policy of zero tolerance to reporting for work with any amount of
alcohol in the employee’s blood system.
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review and set aside the arbitration award
made under case number MP 239-11 dated 1 December 2011,
in terms of
which the second respondent, (the Commissioner ) found the dismissal
of the fourth respondent (hereinafter referred
for ease of reference
as “the employee”) to have been unfair and ordered that
he be reinstated.
Background
facts
[2]
The employee was prior to his dismissal employed as an engineer
attendant. He was charged and dismissed for the offence of misconduct
relating to having “tested positive for alcohol intoxication in
the mine premises.”
[3]
The standard of conduct which the employee was accused of having
breached is set out in the Alcohol and Intoxicating Substances
Testing Policy. The objective of the policy is to ensure safety and
welfare of employees and visitors at the mine and was done
in
accordance with Cardinal Rule No 1, which reads as follows:
“
We
will always come to work free from influence of alcohol; or drugs.”
[4]
Clause 2 of the policy provides:
“
2.1
In terms of section 5 of the Mine Health and Safety Act No 29 of 1996
(“the MHSA”), the Company is required to maintain
an
environment, as far as is reasonably practicable, that is safe and
without risk to its employees as well as those persons who
may be
affected by the activities which occurs at its Mines. The negligent
failure to comply with the statutory obligation thereby
endangering
the life of any person at a Mine can constitute an offence in terms
of Section 86 of the MHSA.
2.2
XCSA recognises that an employee reports to work (with the intention
of commencing duty), commences duty or enters the companies
premises
under the influence of intoxicating substances is a potential hazard
to himself/herself as well as to his/her the employees,
and to any
other person. In addition, such person poses a risk to the company's
assets.
2.3
XCSA recognises and accept that a zero tolerance policy is necessary
and should be consistently applied to all its premises.
This means a
reading of ZERO (irrespective of the measurement scale) – i.e
this means a person tested should not receive
a positive result.”
[5]
The essence of the above policy is that it prohibits an employee from
presenting himself for work when he or she has any amount
of alcohol
in his or her blood system. The policy also provide for self- testing
by employees before entering the workplace if
they had at any stage
taken alcohol or drugs.
[6]
In the present instance the employee did not do his self-test when he
entered the workplace on 25 November 2010. He was tested
for alcohol
after entering the workplace and was found to have alcohol in his
blood system.
Grounds
for review
[7]
The applicant contends that the arbitration award is reviewable in
terms of
section 145
of the
Labour Relations Act of 1995
, in that the
Commissioner failed to apply his mind to the evidence which was
properly placed before him. The other point raised
by the applicant
in challenging the arbitration award is that the Commissioner ignored
materially relevant evidence which was placed
before him and took
into consideration irrelevant material concerning whether the
employee could do his work despite the alcohol
content in his blood
system.
The
arbitration award
[8]
In arriving at the conclusion that the dismissal of the employee was
unfair the Commissioner reasoned as follows:
“
[59]
However, the test results in itself are not sufficient to prove that
the Applicant was under the influence of alcohol when
he reported for
duty. The only observation made in respect of the Applicant's state
of sobriety was a slight smell of alcohol in
the Applicant's breath,
but apart from that there was no other indication that the
Applicant’s actions way influenced by
the use of alcohol."
[9]
The Commissioner further relied in his reasoning on the decision of
the Labour Appeal Court in Tanker Services (Pty) Ltd v Magudulela
1
where the Court is quoted as having said:
“
An
employee is under the influence of alcohol if he is unable to perform
the task entrusted to him with the skill entrusted to him
or with the
skill of a sober person. The evidence required to prove that a person
has infringed the rule relating to the consumption
of alcohol or
drugs depends on the offence with which he is charged. If employees
are charged with being under the influence, the
evidence must be to
prove that their faculties were impaired to the extent that they were
incapable of working properly.”
Evaluation
[10]
In considering this review application the test to be applied is that
of a reasonable decision maker as set out in Sidumo v
Platinum Mines
Limited and Others.
2
The inquiry to conduct is whether the decision reached by the
Commissioner is one that a reasonable decision maker could not have
reached. The totality of the facts and the circumstances of the case
as was presented before the Commissioner plays a role significant
in
deciding whether there is a basis for interfering with the
arbitration award.
[11]
In the present instance it is apparent from the reading of the
arbitration award that the Commissioner misconceived the issue
he was
tasked to determine. He confused the issue of being charged for being
under the influence of alcohol and being unable to
perform duties as
a result thereof with the charge envisaged in the cardinal rules
which is zero absence of alcohol in the blood
system of an employee.
[12]
The two key issues which amongst others the Commissioner had to
determine is set out in the pre-arbitration minutes in the
following
terms:
3.1 .
. .
3.2
Whether the Respondent (Applicant in the present matter) has a zero
tolerance for any level alcohol in the employees’
(blood)
system or it has zero tolerance against reporting for duty being
under the influence of alcohol.
3.3
Whether or not the Applicant (the employee) had alcohol in his
(blood) system and if there was whether such alcohol exceeded
the
required limit.”
[13]
The existence and the reasonableness of the rule governing the
conduct as set out in the cardinal rules was not disputed by
the
employee. Put in another way, the employee was aware of the cardinal
rules and did not raise any issue regarding its reasonableness.
In
fact the record shows that the employee signed a Health and Safety
Risk Conversation Training form confirming that he was made
aware of
the risk and precautionary measures concerning the cardinal rules.
[14]
The issue that the employee had alcohol in his blood system was also
not disputed. During the disciplinary hearing the employee
raised as
a defence that the alcohol content in his blood system was due to the
medication, known as Lerumo la Madi, which he had
taken before
reporting for work. This defence was not pursued during the
arbitration proceedings. The tests which were conducted
indicated
that the content of alcohol in the employee’s blood system was
at the levels 0.017 and 0.015.The employee did concede
during cross
examination that the objective of the cardinal rules was safety.
[15]
As concerning the substance of the issue which the Commissioner had
to determine the following was put to the employee by the
representative of the applicant:
“
So
you will agree with me then Mr Nkosi that, it was wrong for any
employee to arrive at work with alcohol in his system?
The
employee responded as follows:
“
Yes
it is totally wrong . . .”
[16]
In addition to the breathalyser tests which were conducted it was not
disputed that the employee had an alcohol smell which
in a sense
confirmed the results of the breathalyser test. It therefore follows
that the employee had failed the zero tolerance
alcohol tests.
[17]
It is apparent from the above that had the Commissioner applied his
mind to the issue of the policy regarding alcohol and drugs
at the
workplace he would have found that the employee was guilty of
contravening the policy regarding the zero content in his
blood
system when entering the mine premises. On his own version the
employee knew about the rule governing the blood contents
in his
blood system when attending at work. He also knew about the self
-testing procedure if one had taken any amount of alcohol
at any time
before reporting for work. He was also aware that he could have
avoided contravention of the rule by conducting self-testing.
He also
knew that the underlying objective of the policy had to do with
safety.
[18]
In addition to the above, the Commissioner would, had he appreciated
the task that confronted him, have found that the dismissal
imposed
by the applicant was an appropriate sanction taking into account the
following factors:
a.
The employee knew about the rule and more importantly that its
objective was to ensure safety at the workplace.
b.
That the employee had an opportunity of avoiding the breach had he
been honest to himself by conducting self-testing before entering
the
mine premises.
[19]
In light of the above, I am of the view that, the applicant has made
out a case justifying the finding that the Commissioner’s
decision was unreasonable and that he committed gross irregularity in
failing to appreciate the material issue he was expected
to deal
with.
Order
[20]
In the premises, the following order is made:
1.
The arbitration award under case number MP 239-11 dated 1 December
2011 is reviewed and set aside.
2.
The arbitration award is substituted with the order to the effect
that the dismissal of the fourth respondent was for a fair
reason and
accordingly the claim of unfair dismissal is dismissed.
E
Molahlehi
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Mr B Masuku of Tabacks Attorneys
For
the Respondent: Adv T Setshosa
Instructed by M. S Molebaloa
Attorneys.
1
1997
(2) BLLR 1552
(LAC).
2
[2007]
12 BLLR 1097
(CC).