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[2014] ZALCJHB 148
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SATAWU obo Buthelezi v National Bargaining Council For The Road Freight Industry and Others (JR320/12) [2014] ZALCJHB 148 (6 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: JR320/12
In the matter between:
SATAWU
obo MDUDUZI
BUTHELEZI
Applicant
and
NATIONAL BARGAINING
COUNCIL FOR
THE
ROAD FREIGHT
INDUSTRY
First
Respondent
MANISHA SINGH
N.O Second
Respondent
XINERGISTIX MANAGEMENT
SERVICES (PTY) Third
Respondent
Heard:
4 July 2013
Delivered:
6 May 2014
Summary:
Review of arbitration award- employee arriving at work under the
influence of alcohol- employer having zero alcohol tolerance
policy-
employee blood level above limit- commissioner finding dismissal
fair- award reasonable- review application dismissed.
JUDGMENT
MANCHU
AJ
Introduction
[1]
Mr Buthelezi (employee) represented by SATAWU (the applicant) was
employed by the third respondent as a general worker at its
PG Bison
division.
[2]
On 22 November 2010, the employee was required to undergo a
breathalyser test by the third respondent and was found to be under
the influence of alcohol.
[3]
Disciplinary steps were taken against the employee that resulted in
his dismissal.
[4]
The applicant wishes to review the findings against the employee.
Essentially, the applicant does not dispute that the breathalyser
results indicated that the employee’s alcohol level was above
that permitted at the workplace. Instead, the applicant asserts
that
the high alcohol level was the result of traditional medicine that
the employee had consumed and not the result of the consumption
of
alcohol.
Work
policy
[5]
It is common cause that the third respondent has a workplace Drug and
Alcohol Policy. The policy seems particularly relevant
for the third
respondent’s business and is intended to ensure and protect
safety at the workplace.
[6]
As its preamble, the policy records that “Xinergistix
Management Services (Pty) Ltd recognises the misuse and abuse of
drugs and alcohol as one of the major causes of road traffic
accidents and industrial incidents.
[7]
The policy provides that an employee reporting for duty should have
an alcohol level of 0.00g/100ml. In other words, the policy
does not
allow for any amount of alcohol.
[8]
Of significance is that the policy had provisions for both
prescription and non-prescription drugs. In both instances, an
employee
taking such drug must
inter alia
;
8.1
obtain confirmation that the use of such
drug will not impair his/her ability to carry out his/her duties; and
8.2
advise their supervisor (in confidence) of
the nature of the drugs, and the period for which they are being
used.
[9]
From my reading of the record, the applicant does not dispute being
aware of the existence of the policy. In fact, the employee
was
previously charged with contravening the policy, so he ought to be
aware of it.
[10]
The policy also seems important for the safety or proper functioning
of the workplace.
[11]
In my view, the issue to be considered is whether the fact that the
employee’s alcohol blood level was the result of
consuming
medicine, instead of alcohol, means the employee has not breached the
policy.
[12]
From my reading, the policy is concerned with alcohol blood levels
and not how they are reached. The policy discourages the
attendance
at the workplace with any impairment, whether caused by consuming
alcohol or prescription and non-prescription drugs.
[13]
In the case of medicines which cause impairment, the policy dictates
that an employee has an obligation to confirm that the
drug will not
impair his/her ability to carry out his/her normal duties.
Furthermore an employee is required to advise his/her
employer in
confidence, of the fact that he/she is taking medication.
[14]
The second respondent found
inter alia
, that:
14.1
It was common cause that the individual
applicant was found to have been in excess of the alcohol level
allowed by the third respondent;
14.2
The third respondent has a zero tolerance
policy in respect of alcohol intoxication;
14.3
Alcohol intoxication is a very serious
offence and all employees are subjected to a breathalyser test before
gaining entry to the
site;
14.4
The alleged traditional medicine was not
tendered into evidence at the arbitration proceedings;
14.5
Due to the absence of the alleged
traditional medicine, it was difficult to ascertain whether it
contributed to the intoxication
levels;
14.6
There was no satisfactory explanation as to
why the alcohol was found in the individual applicant’s blood;
14.7
The individual applicant had a final
written warning for the same offence;
14.8
It was probable that the individual
applicant had consumed alcohol, which accounted for the blood alcohol
level; and
14.9
The dismissal of the individual applicant
was substantively and procedurally fair.
[15]
In my view, this is reasonable decision in light of the evidence
before the second respondent and does not warrant interference
from
this Court.
[16]
I further point out that even if it was shown that the alcohol level
was the result of the traditional medicine, the employee
would still
have been in breach of the policy for arriving at work under the
influence of alcohol.
[17]
The policy does not permit attending work under the influence of
alcohol under any circumstances, even if caused by medicine.
If any
employee does take intoxicating medicine, he is required to take
certain steps that the employee failed to do.
[18]
Therefore, in my view, it is not an answer to say the cause of the
impairment was the result of medicine. The policy specifically
prohibits all forms of impairment, even if caused by medicine.
[19]
The review is accordingly dismissed with no order as to costs.
________________________
Manchu AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
FOR
THE APPLICANT: Mr Frans Mphepya
instructed by Mabaso Attorneys
FOR
THE RESPONDENTS: Ms Mohsina Chenia instructed by Glyn Marais
Attorneys/ Cliffe Dekker Hofmeyr Inc.