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[2015] ZALCJHB 203
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Batswana v Saba and Others (JR618/13) [2015] ZALCJHB 203 (10 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 618/13
DATE:
10 JULY 2015
Not
Reportable
THABA
YA BATSWANA
….....................................................................................................
Applicant
And
STANLEY
DUMISA
SABA
.........................................................................................
First
Respondent
COMMISSIONER
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
COMMISSIONER
NONCEBA CAROLINE
HLABA
...........................................
Third
Respondent
Heard:
8 July 2015
Delivered:
10 July 2015
JUDGMENT
HULLEY,
AJ
Introduction
[1]
The applicant applies to review and set
aside an arbitration award dated 26 February 2013 issued by the third
respondent in favour
of the first respondent.
The evidence
[2]
The first respondent was a bar tender
working at a hotel owned by the applicant.
[3]
He was charged with gross misconduct for
being “under the influence of alcohol” while on duty on
15 December 2012 and
a failure to follow the company policies and
procedures relating to such allegation. (A charge of
absenteeism was apparently
not proved at the disciplinary inquiry).
[4]
The first respondent was found guilty
(there is some dispute as to whether he pleaded guilty at the
disciplinary inquiry) and was
ultimately dismissed. The first
respondent then referred a dispute to the second respondent for
conciliation and when conciliation
failed the matter proceeded before
the third respondent as arbitrator.
[5]
At the conclusion of the proceedings the
third respondent found that the first respondent’s dismissal
was substantively unfair
though procedurally fair. She awarded
compensation equivalent to 3 months’ salary.
[6]
Since the applicant’s grounds of
review ultimately come down to a challenge on the arbitrator’s
appreciation of the
evidence and how she dealt with it, I set out
some of the evidence.
[7]
The applicant called two witnesses, Mr Peet
Beneke and Ms Michelle Olver. The first respondent testified on
his own behalf.
[8]
Beneke testified that he was employed as
the Senior Front House Manager for the hotel, overseeing the waiters
and barmen, following
up with customers, placing and receiving
orders, doing stock takes and so forth. The first respondent
was employed by the
hotel as a barman.
[9]
At approximately 23h00 on 15 December 2012
the first respondent requested Beneke permission to leave early.
Beneke detected
alcohol on the first respondent’s breath and
asked him to subject himself to a breathalyser. The first
respondent agreed
and a breathalyser test was conducted. It
indicated, so he said, that the first respondent had consumed alcohol
and was above
the legal limit permitted for the driving of a motor
vehicle. Beneke testified that the first respondent queried the
first
test and accordingly a second test was performed on him.
The results were the same.
[10]
In cross-examination of Beneke the first
respondent challenged the results of the breathalyser test. He
appeared to contend
that Beneke had substituted the results of the
second test with those of the first. He pointed out to Beneke
that he (the
first respondent) had wished to sign for the second
test, but Beneke had indicated that it was not necessary for him to
do so.
Beneke appears to have accepted that he had indeed
informed the first respondent that it was not necessary for him to
sign the
results of the second breathalyser test. On Beneke’s
version, he considered it was unnecessary because the exchange
between him and the first respondent was captured on the surveillance
cameras.
[11]
Olver testified that she was the Manager of
a restaurant belonging to the company which appears to have been
linked to the hotel.
[12]
On a previous occasion she had caught the
first respondent drinking on duty and subjected him and another
employee who was also
caught to a disciplinary hearing which led to a
final written warning being issued.
[13]
Olver was referred to the judgment of the
chairman of the disciplinary enquiry which led to the first
respondent’s dismissal.
It appears from that document
that Olver acted as the complainant in initiating the charges against
the first respondent.
She testified that the facts set out in
the judgment were an accurate reflection of what transpired.
[14]
The document reflects that the First
Respondent was asked whether he understood the charges and to
plead thereto. He
pleaded guilty to the charge of being under
the influence of alcohol whilst on duty on 15 December 2012 and a
failure to follow
the company’s policies and procedures.
He pleaded not guilty to a charge of absenteeism, and was found not
guilty of
that charge.
[15]
Olver further testified that the first
respondent had agreed at the hearing that he arrived at work under
the influence of alcohol
and stated that he had been at a party the
previous evening and believed that the alcohol would have worked its
way out of his
system by the following day.
[16]
Both Olver and Beneke testified that the
company had a zero tolerance policy towards intoxication on duty.
[17]
Olver, like Beneke, was challenged on
whether the results of the breathalyser test were indeed those of the
first respondent.
She was ultimately forced to concede that she
was not aware of whether the results were those of the first
respondent.
[18]
In his testimony the first respondent
confirmed much of the evidence which had been produced by Beneke.
He confirmed that
he had approached Beneke shortly before 23h00 on 15
January 2011 with the request to leave early. During the course
of his
conversation with Beneke the latter indicated that he smelt
alcohol on his breath and requested him to submit himself to a
breathalyser
test. The first respondent denied that he smelt of
alcohol or that he was intoxicated. Nevertheless, he agreed to
the
breathalyser being conducted on him.
[19]
The first respondent indicated that he was
dissatisfied with the first breathalyser test that was conducted and
requested a second
to be performed. It was and he requested an
opportunity to sign for the results of the second breathalyser test
but was informed
that it was not necessary for him to do so. He
insisted on a second test being administered and it was. He
stated that
the results of the second test demonstrated that he was
not intoxicated. (This latter aspect was never put to either of
the
applicant’s witnesses).
[20]
The first respondent denied the accuracy of
the facts set out in the judgment of the chairperson of the
disciplinary inquiry.
He indicated that he had pleaded not
guilty to any of the charges. (Once again, these facts were
never challenged in cross-examination
of Olver).
[21]
The first respondent stated that Olver had
trumped up these charges against him because she had a prior warning
against him and
wished to “get rid of” him.
[22]
Under cross-examination he denied having
stated that he had consumed alcohol at a party the previous evening.
In fact, the
first respondent not only failed to challenge the
evidence of Olver in this respect, but in his evidence in chief
stated
“we had a party at home, I had lots of alcohol”
.
The arbitration
award
[23]
The arbitrator in coming to her conclusion
noted that it was common cause that the first respondent was on a
final written warning
for being under the influence of alcohol and
that no evidence was presented at the disciplinary hearing or at the
arbitration.
She noted that the first respondent was aware of
the rule given that he had previously been issued with a final
written warning.
[24]
The arbitrator then stated:
“
7.6
The Applicant [the first respondent
in
casu
] disputed the first breathalyser
test and a second one was administered. The Applicant did not
co-sign for the results and
therefore disputed that he was under the
influence. There is no reason for me to disbelieve the
Applicant as he attended
a disciplinary hearing where he was issued
with a final warning. It will also be improbable that the
Applicant would refuse
to sign for the test results and why was there
no witness to verify that the Applicant had refused.
7.7.
The first witness, Peet, testified that the breathalyser was missing
when he came
from his shift. The second witness did not produce
any evidence in the disciplinary hearing to prove that the Applicant
failed
the test. Therefore, it was not the responsibility of
the Applicant to ask for evidence. He who alleges must prove.
….
7.12
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. Without proof, the sanction of
dismissal, is therefore too harsh.”
Consideration of
the grounds of review
[25]
The applicant has raised several criticisms
of the third respondent’s award. I do not intend dealing
with them in light
of the conclusion to which I have come.
[26]
Suffice
to state, however, that ‘when reviewing arbitration awards
under the LRA, little purpose is served by referring to
copious
passages from the transcript to highlight why the version advanced on
behalf of one party was improbable and should have
been
rejected’.
[1]
[27]
In
Herholdt
v Nedbank Limited (Congress of SA Trade Unions as amicus curiae)
[2]
,
the Supreme Court of Appeal noted that –
‘
for
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by Section 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the inquiry or arrived at an
unreasonable result. A result will only be unreasonable if it
is one
that a reasonable arbitrator could not reach on all the material that
was before the arbitrator. Material errors of fact,
as well as the
weight and relevance to be attached to particular facts, are not in
and of themselves sufficient for an award to
be set aside, but are
only of any consequence if their effect is to render the outcome
unreasonable.’
[3]
[28]
There are various indications in the award
which suggest that the arbitrator either completely misconceived the
nature of the inquiry
she was called upon to conduct or
alternatively, failed to understand how the evidence impacted upon
that inquiry.
[29]
In the first instance, the arbitrator’s
finding that there was “no reason for me to disbelieve the
[first respondent]
as he [had] attended a disciplinary hearing
[previously] where he was issued with a final warning” begs the
question.
She was called upon to determine whether the first
respondent was indeed intoxicated. The fact that he had
attended a previous
disciplinary inquiry and had been found guilty
and issued with a final written warning provided no support for the
view that he
was
not
intoxicated on the occasion under consideration. If anything,
the fact that he had been guilty of intoxication previously
may
provide some support for the conclusion that he
was
intoxicated on the latter occasion. (Whether such evidence will
be admissible having regard to the rule against similar fact
evidence
need not be determined here).
[30]
Secondly, the arbitrator’s view that
it was “improbable” that the first respondent would
“refuse to sign
for the test results” is inconsistent
with the evidence. None of the witnesses testified that the
first respondent
had in fact refused to sign for the test results.
Both Beneke and the first respondent testified that the first
respondent
requested to sign for the test results, but Beneke stated
that it was not necessary.
[31]
Thirdly, the arbitrator’s finding
that the company had failed to produce any evidence at the
disciplinary hearing to prove
that the first respondent had failed
the breathalyser test ignores the testimony of Olver that it was not
necessary to produce
the test results because the first respondent
had in fact pleaded guilty to the charges. While this finding
was consistent
with the first respondent’s testimony, it must
be borne in mind that he had never challenged Olver’s testimony
in cross-examination
and had never challenged the authenticity of the
judgment of the disciplinary chairman which supported Olver.
[32]
That
having been said, I agree with the third respondent’s view that
where an employee is charged with being under the influence
of
alcohol, evidence must be led to demonstrate that the employee’s
faculties were impaired to the extent that he or she
was incapable of
performing his or her duties. That view is supported by the
court in
Mondi
Paper Company v Dlamini
[4]
,
a case referred in the heads of argument filed on behalf of the first
respondent.
[33]
In
the
Mondi
case McCall J, with respect, correctly, came to the conclusion that
where a person is charged with “
drunkenness
”,
what was required was to demonstrate ‘an impairment of the
faculties to the extent that the ability of the person
to perform his
job was impaired or there was a danger to safety’.
[5]
Although the learned Judge was paraphrasing what was contained in the
heads of argument of counsel in that matter, it is
clear that the
learned judge agreed with those views. The learned Judge went
further to state that in such circumstances
(i.e. where the charge is
one of drunkenness) evidence of a breathalyser test is of little
value
per
se
.
[34]
In
R.
v Procter
[6]
the appellant had been charged with the contravention of a statute
which prohibited a person from driving or controlling a train
whilst
intoxicated. The court in considering what was meant by the
phrase “
intoxicated”
in the statute stated:
‘
The
word ‘intoxicated’ is a word of degree depending upon the
circumstances – in the same way as the phrase ‘being
under the influence of liquor’ is a question of degree
depending upon the circumstances.’
[7]
[35]
In that case the court found that the
purpose of the statute was the protection of human life as well as
the protection of property.
The court noted in that case that –
‘
The
question then arises: ‘In what way is the consumption of
alcohol - intoxication - covered by the protective provisions
of the
section?’ It is well known that, after a person has
consumed a sufficient quantity of alcohol – sufficient
depending upon the capacity of the individual concerned – the
faculties become impaired: the vision becomes blurred, the
hearing
less acute, the mind bemused, and the reflexes between the brain,
eye, hand and foot become sluggish. When a person
has been
proved to have consumed alcohol and it has been shown that, as a
result of taking that alcohol, his reflexes have become
affected and
he behaves in a manner which is irrational, then, other things being
equal, it could be said that his actions were
induced by an
over-indulgence in alcoholic liquor.”
[8]
[36]
In this case there was little evidence to
demonstrate that the first respondent had reached such a level of
intoxication.
[37]
No evidence was led as to the purpose of
the rule or of the nature of the first respondent’s
employment. The general
duties of a barman are, however, to
serve customers by preparing drinks and sometimes by mixing different
drinks. Unfortunately,
no evidence was led on that score.
[38]
Having regard to the authorities which I
have cited above, it is clear that evidence of the breathalyser test
is not in and of itself
sufficient to establish the charge.
[39]
Returning to the award, it is clear that
the arbitrator did apply her mind to issue of whether the first
respondent was under the
influence of alcohol. She came to the
conclusion that he was not. In arriving at this conclusion, she
made a number
of findings which are not supported by the evidence or
are clearly wrong. She also failed to have regard to the fact
that
the first respondent had pleaded guilty to the charge, that many
crucial aspects of his evidence had not been put to the company’s
witnesses (despite the fact that he clearly understood his obligation
to challenge their testimony) and had made various contradictory
statements. On the face of it, the evidence of the first
respondent appeared highly suspicious and ought to have been
rejected.
At the very least, the arbitrator ought to have
explained why she was prepared to accept the evidence of the first
respondent notwithstanding
the contradictions and his failure to put
aspects of his version to the applicant’s witnesses.
[40]
Nevertheless, the conclusion which the
arbitrator arrived at is not only one which a reasonable commissioner
could have arrived
at, it appears to be the correct one.
[41]
Evidence of the first respondent’s
intoxication was, at best, scant. There was no suggestion at
all that his faculties
had been impaired. The only direct
evidence that was relevant to the question of the first respondent’s
intoxication
was the evidence of Beneke that he smelt of alcohol and
the results of the breathalyser test. That evidence only
established
that the first respondent had consumed alcohol. But that
was not the charge against him.
[42]
The one complicating feature is the fact
that the first respondent in fact pleaded guilty to the charge (I
think it can be accepted
on the evidence that this was proved).
Who best to determine whether his faculties had in fact been
impaired, but the first
respondent himself? On the other hand,
the fact that the first respondent pleaded guilty to the charge may
have been influenced
by the commonly held view that a failure of the
breathalyser test was sufficient proof of his guilt. The view
was, however,
wrong.
[43]
In all the circumstances, the application
must fail.
[44]
As regards the question of costs, I am
satisfied that the first respondent’s testimony was not
entirely honest. I do not intend
allowing him any costs in this
matter.
Relief
I.
In the circumstances, the application is
dismissed and there is no order as to costs.
Hulley, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Mr R Atcheson of Lee and McAdam Attorneys
On
behalf of the Respondent: Mr H. Kgotleng of Kgotleng Attorneys
[1]
Distell
Limited v Commission for Conciliation, Mediation and Arbitration and
others
(2014) 35 ILJ 2176 (LC), at 2192 I – 2193 A
[2]
2013
(6) SA 224 (SCA)
[3]
Herholdt,
supra
,
at 234 A - C
[4]
[1996]
4 All SA 92 (N)
[5]
at
98
[6]
1951
(4) SA 298
T
[7]
at
299 D
[8]
at
299 F - H