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[2018] ZALCJHB 161
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Mohlala v MEIBC and Others (JR243/16) [2018] ZALCJHB 161 (24 April 2018)
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
C
ase no: JR 243/16
In the
matter between:
MATHOME FOSTER MOHLALA
Applicant
and
MEIBC
First
Respondent
L C SHANDU (
N.O.
)
Second
Respondent
RAYTOKO ELECTRICAL &
MECHANICAL
CC
Third
Respondent
Heard
:
24 April 2018
Delivered
:
3 May 2018
Summary:
(Review – grounds mainly based on evidence not before
arbitrator – award is reviewed on the
basis of the evidence
that was before the arbitrator at the arbitration hearing – on
that basis award findings not unreasonable)
JUDGMENT
LAGRANGE
J
Introduction
[1] The
applicant has applied to review an arbitration award handed down on 8
February 2016, in terms of which is dismissal was
found to be
substantively fair. The application is opposed.
[2] The
review application was launched timeously on 18 March 2016, but the
record was only filed nearly a year later. In terms
of the Labour
Court Practice Manual, the record should have been filed within 60
days of launching the application unless leave
to file it later had
been granted and the application should have been finalised within
twelve months. The applicant applied for
condonation for his
non-compliance with the requirements. Notwithstanding the merits, I
am prepared to accept that the applicant
did not have the means to
file the transcript of the proceedings and was only able to do so on
obtaining assistance from the SASLAW
pro bono clinic. In the
circumstances, I am willing to condone the applicant’s
non-compliance with the practice manual.
Background
[3] He
was dismissed on 7 September 2015 for refusing instructions to leave
the premises when told to do so on account of being
under the
influence of alcohol.
[4] The
evidence is reasonably summarised in the arbitrator’s award. In
essence, the arbitrator found that the applicant had
refused to clock
out despite being instructed to do so after he had failed a
breathalyser test. He only left the premises at the
instance of the
employer to have a blood sample taken. He had claimed that he was on
his way to leave the premises but had gone
to fetch his lunchbox from
the workshop when he was told to stop and go to the hospital because
he was refusing to leave the premises.
The arbitrator accepted the
version of the employer’s witnesses that the applicant had
become argumentative when told to
leave and, after refusing to leave,
had been found working at a height of nearly 5 metres on new building
premises at the workplace.
[5] In
part, the arbitrator accepted the employer’s version as more
probable because there would have been no reason to require
the
applicant to have a blood test if he had been willing to leave after
the breathalyser test.
Grounds
of review
[6] In
summary, the applicant’s main grounds of review relates to:
6.1
The reliability of the blood test results in determining whether that
indicated he was under the
influence of alcohol. In this regard, he
presented detailed written submissions in his review papers
attempting to cast doubt on
the reliability of blood sample which had
revealed a level of .05% alcohol in his blood, equivalent to the
maximum legal limit
for driving.
6.2
The arbitrator failed to take account of the toxins which he was
exposed to in the workplace which
indicated that the employer had a
double standard when it came to workplace safety.
6.3
The arbitrator also failed to consider that other employees who drink
beer who were never sent
for blood tests.
[7] At
the arbitration hearing, the employer’s representative made it
clear that the applicant would not have been dismissed
simply on
account of being under the influence of alcohol. It was his refusal
to leave work despite being instructed to do so twice
in
circumstances where it was reasonable in accordance with the
employer’s obligations under the Occupational Health &
Safety Act (No. 85 of 1993).
[8] The
parties also agreed that it was common cause that the applicant was
tested for alcohol and alcohol was found in his blood,
though that
did not mean he was drunk. During the arbitration, most of the
evidence concerned whether he was going to fetch his
lunchbox on his
way to leaving the premises or whether he had refused the
instructions to stop working which caused the employer
to demand that
he go for a blood test. There was no evidence presented about
inconsistent safety practices or disciplinary action
against
employees under the influence at the workplace.
[9]
Unfortunately for the
applicant, a review of an arbitration award is not an opportunity to
lead fresh evidence and the court is
limited to consider only the
evidence place before the arbitrator. Even then, the court can only
consider if the arbitrator’s
decision is one that no reasonable
arbitrator could have reached on that evidence.
In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation & Arbitration & others
[1]
the LAC summarised the test for review applications under s 145 of
the LRA thus:
(1) In
terms of his or her duty to deal with the dispute with the minimum of
legal formalities, did
the process used by the commissioner give the
parties a full opportunity to have their say?
(2) Did
the commissioner identify the dispute he or she was required to
arbitrate?
(3) Did
the commissioner understand the nature of the dispute he or she was
required to arbitrate?
(4) Did
the commissioner deal with the substantial merits of the dispute?
(5) Is the
commissioner’s decision one that
another decision maker could reasonably
have arrived
at based on the totality of the evidence?
Even if
the court might have taken a different view of the evidence that is
not enough to overturn the arbitration award.
[10]
Although the applicant is unfamiliar with the wording used in review
applications, essentially he challenges the rationality
of the
arbitration award, but he based his criticism mainly on evidence that
was not placed before the arbitrator, which a review
court cannot
consider. On the question of whether it was reasonable of the
arbitrator to conclude that he probably had refused
to leave when he
was first instructed to do so, I do not think it was farfetched of
the arbitrator to conclude that the employer
would not have sent him
for a blood test if he had been willing to leave the premises after
the breathalyser test.
[11] The
inferences drawn by the arbitrator from the evidence, which led him
to conclude that the applicant was guilty as charged
and that his
dismissal was fair were perfectly plausible inferences for him to
draw and cannot be said that his assessment of the
probabilities of
the respective versions was inherently irrational. In the
circumstances, the review application must be dismissed.
Although
there is an element of vexatious in this way the applicant has
conducted his case, in view of his apparent indigent circumstances,
I
declined to make an adverse cost award against him.
Order
[1]
The applicant’s late filing of the transcript of the
arbitration proceedings and non-compliance
with the Labour Court
practice manual is condoned.
[2]
The review application is dismissed.
[3]
No order is made as to costs
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person
RESPONDENT:
Mr
Z Might of SEIFSA
[1]
(2014) 35
ILJ
943 (LAC) at para 20