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[2015] ZALCJHB 413
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NUMSA obo Harris v Bargaining Council and Others (JR637/2012) [2015] ZALCJHB 413 (29 July 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Of interest to other judges
Case no: JR637/2012
In the matter between
NUMSA
OBO WILLIAM JULIAN HARRIS
Applicant
and
BARGAINING
COUNCIL
First respondent
COMMISSIONER CLAIRE
HOCK
Second Respondent
HITACHI CONSTRUCTION MACHINERY SA COMPANY LTD
Third Respondent
Heard: 29 July
2015
Delivered: 29 July
2015
EX
TEMPORE
JUDGMENT
COETZEE
AJ
[1]
This is the ex-tempore judgment in case
JR637/2012 between the National Union of Metalworkers of South Africa
on behalf of William
Julian Harris against Hitachi Construction
Machinery SA Company Ltd, the Third Respondent. The First and Second
Respondents are
the Bargaining Council and the Commissioner
respectively.
[2]
The Applicant asks the court to set aside
an arbitration award dated 21 February 2012 with reference MEGA32669
in which the Commissioner
determined that the dismissal of the
Applicant, William Julian Harris was fair.
[3]
The dismissal of the Applicant came about
as a result of being tested positive for the use of cannabis.
[4]
The employer conducts random tests on its
employees and in this particular case a random test was conducted and
some three or four
individuals tested positive.
[5]
What then happens in terms of the procedure
is that they receive a warning and get paid leave for a determined
period where after
they are re-tested and then depending upon the
outcome of the re-test, certain consequences follow.
[6]
The Applicant was granted 30 days paid
leave where after he had to submit to a retest. The Applicant after
34 days was re-tested
and again tested positive.
[7]
In this regard the issue arose as to
whether 34 days, or 30 days as testified by the employer, was a
sufficient period of time in
which to become clean. The
evidence by the employer was that generally 30 days were sufficient
and then people normally were
clean.
[8]
But there are further evidence from the
employer indicating that it may take from six to nine weeks for a
person to get rid of the
cannabis in the body. The issue as to how
long it takes the body to clean itself from the substance was never
pertinently dealt
with by the Commissioner, who in fact referred to
the various periods of time mentioned but he did not make a finding.
[9]
The employer charged the employee with a
breach of the following rule:
'You
have tested positive for cannabis. Now we draw your attention to two
Regulations in terms of the Occupational Health and Safety
Act. Those
two regulations state explicitly that it is a breach of the Act and
the Regulations to be under the influence and that
would include the
influence of cannabis'
[10]
What the employer needed to prove to
justify the dismissal of the employee was that the employee was under
the influence of a substance
in breach of the two Regulations.
[11]
A breach of the Regulations demand being
under the influence, not merely testing positive for a prohibited
substance.
[12]
During the arbitration, the employer was
limited to the reasons advanced for dismissing the employee. The
Employer attempted to
justify a case to establish that the reason why
it dismissed the employee was because the employee tested positive in
breach of
the two Regulations.
[13]
It was common cause that he employee did
not show any sign of being under the influence of any drug. He was
conducting his work
properly. It was a random test and it so happened
that he tested positive for the use of cannabis.
[14]
There can be no doubt that in order to
breach the Regulations that the employee had to be under influence of
a drug such as cannabis.
[15]
All that the employer established was that
he tested positive for use of cannabis and on the employer’s
evidence he could
have tested positive for another six weeks without
having been under the influence of cannabis.
[16]
Dismissing the employee after a
disciplinary inquiry on a lack of evidence that he was under the
influence is unfair. That was a
substantive problem for the employer.
[17]
The same case is put before the
commissioner and the commissioner adopted the same reasoning as that
of the employer. The Commissioner
effectively equated testing
positive with being under the influence which is certainly not what
the law requires in this regard.
[18]
Being under the influence has a specific
meaning and testing positive has a different meaning - the one does
not equate to the other.
[19]
This Court has the greatest sympathy for an
employer who wishes to protect its employees and its equipment and to
comply with OHSA
and have a save work environment, but then the
employer must go about it in the correct way.
[20]
The employer introduced the concept of a
zero tolerance policy during the arbitration. This really is a
red herring because
that is not what the employee was charged with.
[21]
The employee was not charged with the
breach of a zero tolerance policy. A zero tolerance policy that
the Commissioner was
not told what it is or exactly what it means.
[22]
The only rational interpretation of this
'policy' is as suggested on behalf of the Applicant that it relates
to enforcing the employer's
policy with regard to the Use and Abuse
of Alcohol and Drugs as contained in its disciplinary code without
exception.
[23]
It means the employer has a zero tolerance
policy in respect of the provisions of its disciplinary code.
[24]
There is no evidence that there was a
different policy with a different content and if so, that the
employee was charged with a
breach of that other policy.
[25]
No reasonable commissioner could have come
to the conclusion that the employee was under the influence, merely
for having tested
positive for cannabis. That is so
unreasonable that it stands to be reviewed and set aside.
[26]
My finding is that the Commissioner
rendered an award that was unreasonable to the extent that no
reasonable Commissioner would
have rendered.
[27]
As far as costs are concerned, I am not
persuaded that a cost order is appropriate having regard to the
principles that apply. It
is fair and equitable to not make any order
for costs.
[28]
I make the following order:
[28.1]
The arbitration award of 21 February 2012,
reference MEGA32669 is hereby reviewed and set aside and the matter
is referred to the
First Respondent for arbitration before a
different commissioner.
[28.2]
There is no order as to costs.
____________________________
Coetzee AJ
Acting judge of the Labour Court
Appearances:
For the Applicant[s]:
David Cartwright Attorneys
For the Respondent[s]:
Fluxmans Inc