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[2015] ZALCJHB 6
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Assmang Limited (Beeshoek Mine) v Commission for Conciliation Mediation And Arbitration and Others (JR911/13) [2015] ZALCJHB 6 (21 January 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO.: JR911/13
DATE:
21 JANUARY 2015
Not
Reportable
In
the matter between:-
ASSMANG
LIMITED (BEESHOEK MINE)
..........................
Applicant
And
COMMISSION
FOR CONCILIATION
......................
First
Respondent
MEDIATION
AND ARBITRATION
DAVID
BOBBEJAAN
N.O
........................................
Second
Respondent
WILLIAM
BROWN
.....................................................
Third
Respondent
Heard:
28 OCTOBER 2014
Judgment
: 21 January 2015
Summary:
Review application- failure to observe the zero tolerance to alcohol
rule-employee aware of the rule- employee previously
warned and
counseled for similar misconduct-final written warning
valid-dismissal-question whether arbitrator can interfere with
sanction of dismissal imposed by employer in circumstances.
JUDGMENT
SONO,
AJ
[1]
The Applicant seeks an order to review and set aside the arbitration
award issued by the Second Respondent in terms of which
the Second
Respondent found the dismissal of the Third Respondent to be
substantively unfair.
[2]
The Second Respondent ordered that the Applicant should reinstate the
Third Respondent retrospectively and compensate him in
the amount of
R83399.50. The Second Respondent further ordered that the Third
Respondent should be issued with a sanction less
than dismissal and
be referred for counseling for alcohol abuse.
[3]
The Applicant seeks an order to review and set aside the arbitration
award on the basis that the Second Respondent committed
reviewable
irregularities and reached conclusions that a reasonable
decision-maker could not reach. The Application is unopposed.
[4] The salient
facts of the matter are as follows:-
[5]
The employee was charged and found guilty for being under the
influence of alcohol. The Applicant has a zero tolerance policy
to
alcohol on its premises. Accordingly, in terms of this policy,
employees may not enter the premises of the Applicant with any
amount
of alcohol in the bloodstream at all.
[6]
In terms of the said policy, employees who work in the production
area also known as the Red Area are tested for alcohol everyday
upon
accessing the area. In other words, the testing is compulsory in
respect of employees who work in this area.
[7]
Employees who work in the administrative section (offices) are only
tested on a random basis.
[8]
Being
a mine, however, the Applicant is bound by the provisions of the Mine
Health and Safety Act
[1]
, which
prohibits an employee from entering the mine premises whilst under
the influence of alcohol.
[9]
Safety
of employees in its workplace is of paramount importance to the
Applicant and failure to ensure the safety in the workplace
by the
Applicant, not only has consequences for the employees but for the
Applicant as an employer. See in this regard:
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
[2]
.
[10]
Accordingly, the Second Respondent ought to have taken into account,
the importance of the safety rule concerned, the reasons
for their
existence, and the seriousness and potentially life threatening
consequences of a breach of such rule.
[11]
On the day in question, the Third Respondent was tested for alcohol
as he exhibited red eyes. Upon being tested, the Third
Respondent was
found to have 0,041 mm alcohol content in his bloodstream.
[12]
It is an established fact that being under the influence of alcohol
takes more than just having alcohol content in ones bloodstream.
One
must exhibit certain characteristics which ultimately indicate an
inability on the part of the employee to perform his duties.
[13]
Be that as it may, the Third Respondent pleaded guilty to the charge.
Thus the only issue for determination by the Second Respondent
was
whether the sanction imposed by the Applicant was appropriate based
on the evidence presented before him, taking into account
that in any
event, the Applicant’s disciplinary code prescribes dismissal
as a sanction for misconduct of this kind.
[14]
In addition, the Third Respondent was not a first time offender. He
was previously counseled for failing a voluntary alcohol
test.
Arbitration
proceedings
[15]
During the arbitration proceedings, the Third Respondent raised a
point to the effect that the Applicant did not apply the
zero
tolerance rule consistently in that another employee who was employed
in the Red Area, was not dismissed for having being
found to be
under the influence of alcohol at the workplace.
[16]
The Applicant explained that the employee was not dismissed because
the evidence pertaining to his intoxication was misplaced
and for
that reason disciplinary action against that employee could not be
continued with.
[17]
The Second Respondent found that notwithstanding the explanation by
the Applicant, the Applicant did indeed act inconsistently
by
dismissing the Third Respondent when the employee who was employed in
the Red Area, found in similar circumstances or even worse
than the
Third Respondent because this employee was employed in the Red Area.
In coming to his conclusion, the Second Respondent
considered that
the Applicant by distinguishing between the Red Area and
Administrative Offices, wherein alcohol testing is compulsory
in the
former area and not so, in the latter area, the Applicant had set
different tolerance standards for its workplace depending
on whether,
it was the so-called Red Area (production) or the Administrative Area
(offices).
[18]
The Second Respondent further found that the fact that the Third
Respondent was under the influence of alcohol did not place
anyone at
risk because the Third Respondent worked in the Administrative
Offices area.
[19]
The Third Respondent further testified that in the entire period of
his employment with the Applicant, being just a little
over a year,
he had never been to the production area of the Applicant at all as
such, he could not have placed other employees
or the operations of
the Applicant in danger.
[20]
In the circumstances, the Second Respondent found that the dismissal
of the Third Respondent was too harsh and he recommended
a final
written warning coupled with professional counseling in order to
assist the Third Respondent with his alcohol problem.
[21]
The question is whether his interfering with the sanction imposed by
the Applicant, the Second Respondent committed a reviewable
irregularity.
[22]
The
Court in
Herholdt
v Nedbank Ltd
[3]
held that :
“
material errors of
fact, as well as the weight and relevance to be attached to the
particular facts, and are not in and of themselves
sufficient for an
award to be set aside, but are only of consequence if their effect is
to be render the outcome unreasonable.”
[23]
There was no dispute that the employee was aware of the Applicant’s
rule prohibiting alcohol on the premises. The Third
Respondent
further understood the importance of the rule as well as the
consequences of breach of this rule being that, such breach
would
lead to dismissal.[24] Worse for the Third Respondent, he had
previously been warned and counseled for the same kind of misconduct.
With regard to the earlier misconduct, evidence was led before the
Second Respondent that the Third Respondent had volunteered
for
testing. Clearly, the Third Respondent was not only disingenuous by
failing to submit himself to a voluntary test as he did
in the
previous instance but it is clear that he deliberately flouted the
Applicant’s rule in the hope that he will not be
discovered as
he works in the section of the Applicant’s workplace where
alcohol testing is only random.
[25]
It seems that the Second Respondent was largely swayed in his
decision by the fact that another employee who was found to
be under
the influence of alcohol at work was not dismissed as in his
arbitration award, he does not take issue with the finding
of guilty
made against the Third Respondent but that the sanction was too harsh
based on his ill-placed considerations of consistency
and that the
Applicant was duty bound to send the Third Respondent for counseling
for his drinking habits.
[26]
The Second Respondent however failed to consider the material
evidence on behalf of the Applicant relating to the employee
who was
not dismissed, to the effect that the evidence relating to this
employee was misplaced and therefore the Applicant could
not proceed
with the disciplinary action against that employee. It cannot be said
that the Third Respondent was in a same situation
as this employee.
The Third Respondent did not deny that he was under the influence of
alcohol. He pleaded guilty to the charge.
[27]
Although the Applicant’s explanation in this regard may seem
inadequate as to how the evidence was placed, neither the
Second nor
Third Respondent could second guess the Applicant in this regard. In
the absence of objective evidence, however or whatever
the reason it
was misplaced, the Applicant could not discharge the onus of proving
the misconduct against the employee.
[28]
Be that as a way however, the Third Respondent was previously issued
with a final written warning which was still valid at
the time of the
second misconduct involved herein.
[29]
The Second Respondent failed to take cognizance of the aforesaid
facts and place due weight on them, with the result that
he arrived
at conclusions which a reasonable decision – maker could not
reach.
[30]
The mere fact that the Third Respondent did not work in the
production section but instead worked in the office does not and
cannot be construed to imply that the safety rules were not equally
applicable to him. No area within the premises of the Applicant
was
exempt from the application of the zero tolerance to alcohol rule.
Indeed, although the risk in the office section may be much
lower
than it is in the production section however, the employee broke the
rule knowing fully well that such breach will result
in dismissal. As
stated afore, he was under a valid written warning for breaking the
same rule. In this regard, the Second Respondent
failed to appreciate
the distinction between the existence of a rule on the one hand and
the enforcement thereof, on the other.
[31]
The Second Respondent committed a further reviewable irregularity by
finding that the Applicant ought to have imposed a lesser
sanction
than dismissal and referred the Third Respondent to counseling.
[32]
No evidence was led by the Third Respondent to the effect that he
was suffering from alcohol dependency. The mere fact that
the Third
Respondent had tested positive for alcohol twice within two months,
on its own could not lead to a conclusion that therefore
the Third
Respondent was alcohol dependant so as to create a duty on the part
of Applicant to refer the Third Respondent to counseling.
[33]
It is indeed correct that a misapplication of the law and legal
principles does not lead to a reviewable irregularity, however
the
conclusion reached by the Second Respondent misapplying the
applicable legal principles does not fall within the realm of
conclusions that a reasonable decision – maker could reach.
The
issue of the breakdown in the employment relationship
[34]
The Second Respondent reached a further reviewable irregularity by
finding that because the misconduct committed by the Third
Respondent
was not related to the nature of work he was employment for, being
finance, therefore the employment relationship could
not be broken.
[35]
Although it is correct that the test in these sorts of matters is
whether continued employment relationship is rendered intolerable
or
whether the trust relationship has been broken down, the question is
whether the employee’s conduct in the circumstances
has had
that effect on the employment relationship.
[36]
There is no doubt as to the rational why the Applicant would have a
zero tolerance rule against alcohol in its workplace.
The Third
Respondent was aware of the rule and that its breach could result in
dismissal. More importantly, the Third
[37]
Respondent was previously counseled and issued with a final written
warning for the same conduct, which warning was still
valid. By
making himself guilty of the same misconduct in these circumstances,
the reasonable inference to be drawn is that the
Third Respondent
deliberately committed the misconduct.
[38]
It is unfathomable how in these circumstances, it can be said that
the employment relationship has not been rendered intolerable.
[39]
The Applicant did indeed apply the principle of progressive
discipline and counsel the Third Respondent accordingly. To expect
the employer to exercise further leniency towards an employee who
commits a misconduct knowing the consequences, is with respect,
unreasonable.
[40]
In the premises therefore, the Second Respondent’s finding
that dismissal was unwarranted because the Applicant failed
to lead
evidence to show that the employment relationship had broken down in
the circumstances, is unreasonable.
Conclusion
[41]
On a full conspectus of all the facts and circumstances of the
matter, the Second Respondent reached a conclusion that a reasonable
decision – maker could not reach on the basis of the material
before him. Accordingly, the arbitration award issued by the
Second
Respondent under Case Number: NC2910 – 12 falls to be reviewed
and set aside.
Order
[42]
In the premises the following order is made: -
42.1
The arbitration award issued by the Second Respondent under Case
Number – NC 2910 - 12 dated 17 March 2013 is reviewed
and set
aside;
42.2
The First Respondent is ordered to set the matter down for a hearing
de novo
before a Commissioner other than the Second
Respondent.
42.3
There is no order as to costs.
Bankey
Sono
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant : Advocate M Van As
Instructed
by : Cliffe Dekker Hofmeyer Inc.
[1]
Act
29 of
1996
[2]
(2011) 32 ILJ 1057 (LAC).
[3]
(2013)
34 ILJ 2795 (SCA),