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[2019] ZALCJHB 295
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KWS Carries v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR1261/16) [2019] ZALCJHB 295 (17 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1261/16
In
the matter between:
KWS
CARRIES
Applicant
and
NATIONAL
BARGAINING COUNCIL FOR THE
ROAD
FREIGHT AND LOGISTICS INDUSTRY
First Respondent
B.S
MTHETHWA
N.O
Second
Respondent
WORKERS
AGAINST REGRESSION OBO DOMMY MOKWENA Third Respondent
Heard:
17 October
2019
Delivered:
30 October 2019
Summary:
Review application – breach of a Zero Tolerance Policy on
alcohol is a serious misconduct
– heavy load truck driver
testing positive for alcohol following a breathalyser test -
dismissal is justifiable.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
This is an
application brought in terms of section 145 of the Labour Relations
Act
[1]
(LRA) by the applicant,
KWS Carries (Pty) Ltd (KWS), to review and set aside the arbitration
award issued on 18 April 2016 by the
second respondent, Mr BS
Mthethwa (arbitrator), under the auspices of National Bargaining
Council for the Road Freight and Logistics
Industry (NBCRFLI), under
case number GPRFBC34659. The arbitrator found that the dismissal of
Dommy Mokwena (Mr Mokwena), the member
of the third respondent,
Workers Against Regression (WAR), was procedurally fair but
substantively unfair. He reinstated Mr Mokwena
with back pay of the
sum of R109 786.82 and without loss of benefits.
[2]
WAR is the only respondent opposing the application.
Background
facts:
[3]
KWS is a logistics company that primarily deals with
the
transportation of bulk loads within the Republic of South Africa. Mr
Mokwena was employed by KWS as a truck driver from 22
July 2008. He
was dismissed on 26 March 2015 after he was found guilty of being
under the influence of alcohol whilst on duty.
At the time of the
dismissal, Mr Mokwena was earning a weekly remuneration of R1950.38.
[4]
The whole incident that led to Mr Mokwena’s dismissal
happened
on 13 March 2015. He was transporting the load from Idwala Lime
Distributors (Idwala), the client of KWS, in the Northern
Cape to
Idwala in Vereeniging. As he was about to enter the premises of
Idwala in Vereeniging, he was selected for a random alcohol
test. A
breathalyser test performed at the gate displayed a positive result
for alcohol. A second breathalyser test was conducted
at the premises
of KWS using a different instrument, and the result was once more
positive. The first test was conducted at 08h15
and the alcohol
concertation in Mr Mokwena was recorded as 0.07mg per 1000ml. Whilst
the second test was conducted at 10h00 and
the alcohol concertation
was recorded as 0.08mg per 1000ml.
[5]
Mr William Holtzhauzen (Mr Holtzhauzen), Health and Safety
Manager at
KWS, testified that he was alerted by Idwala that one of their
drivers tested positive for alcohol. He instructed Messrs
William
Chikala (Mr Chikala) and Louw Riekert (Mr Riekert) to go to Idwala to
investigate the matter and bring Mr Mokwena back
to the premises of
KWS. When he first saw Mr Mokwena, he observed that his eyes were
red, speech was slow and hesitant when asked
whether he was under the
influence of alcohol.
[6]
Mr Mokwena denied the allegation that he was under the
influence of
alcohol. He testified that he had stopped drinking a month before the
incident after he was diagnosed with high blood
pressure condition.
Review
test and application
[7]
It is trite
that mere errors of fact or law may not be enough to vitiate an
award.
Notwithstanding,
if errors material to the determination of the dispute constitute a
misconception of the nature of the enquiry
which consequently affect
the fair trial of the issues, an award may be set aside on that
ground alone.
The authoritative pronouncement in this regard remains the Labour
Appeal Court’s (LAC) decision in
Head
of the Department of Education v Mofokeng,
[2]
where it was stated that:
‘
[30]
The failure by an arbitrator to apply his or her
mind to issues which are material to the determination
of a case will
usually be an irregularity. However, the Supreme Court of Appeal
(“the SCA”) in
Herholdt v
Nedbank Ltd
and this court in
Goldfields Mining South Africa (Pty) Ltd
(Kloof Gold Mine) v CCMA and others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome…
[32]
…Mere errors of fact or law may not be enough to vitiate
the award. Something more is required. To repeat: flaws in the
reasoning
of the arbitrator, evidenced in the failure to apply the
mind, reliance on irrelevant considerations or the ignoring of
material
factors etc. must be assessed with the purpose of
establishing whether the arbitrator has undertaken the wrong enquiry,
undertaken
the enquiry in the wrong manner or arrived at an
unreasonable result.
Lapses in lawfulness, latent or patent
irregularities and instances of dialectical unreasonableness should
be of such an order (singularly
or cumulatively) as to result in a
misconceived inquiry or a decision which no reasonable decision-maker
could reach on all the
material that was before him or her.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce
an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the inquiry.
In the final analysis, it will depend on the materiality of the
error or irregularity and its relation to the result. Whether the
irregularity or error is material must be assessed and determined
with reference to the distorting effect it may or may not have
had
upon the arbitrator’s conception of the inquiry, the
delimitation of the issues to be determined and the ultimate outcome.
If but for an error or irregularity a different outcome would have
resulted, it will
ex hypothesi
be material to
the determination of the dispute. A material error of this order
would point to at least a
prima facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, if an irregularity or error material to the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the
issues,
with the result that the award may be set aside on that ground alone.
The arbitrator however must be shown to have diverted
from the
correct path in the conduct of the arbitration and as a result failed
to address the question raised for determination
.’
(Emphasis added)
[8]
Turning to the matter at hand, at the commencement of
the
arbitration, the arbitrator took time to assist the parties to
summarise the issues in dispute. In this regard, the following
extract from the transcript is pertinent:
‘
ARBITRATOR
:
…Now this is my understating of the cases of both parties. The
applicant is challenging both the procedure and substance.
In the
substance,
it
will be the applicant’s case that on the day in question the
applicant was not under the influence of alcohol
.
Two,
the
applicant also challenging the validity of the instrument and the
results of the breathalyser test that was conducted
.
Three
,
on the day in question the applicant is going to lead evidence that
he was under medication
.
…On the other hand, …
the
employer is going to demonstrate that indeed that applicant was under
the influence of alcohol and the instrument that was used
was in good
working condition
.
There was absolutely nothing wrong with the that instrument, this is
why they are confident that the results of the instrument
were
correct and then this application must be dismissed.’
[3]
(Emphasis added)
[9]
It was the evidence of KWS that the breathalysing instruments
utilised to test Mr Mokwena’s alcohol concentration were
calibrated on 22 December 2014 and were in good working condition
and
free of any defects. Mr Klingbiel, the Safety Officer at KWS, was
adamant during cross examination that as a matter of practice,
breathalysers are calibrated every six months in line with the
manufacturer’s instruction.
[10]
The main impugn in relation to the functionality of the breathalyser
was that the second test result reflected an increased alcohol
concentration in Mr Mokwena’s blood, despite being taken two
hours after the first test. Mr Klingbiel’s explanation was that
it is possible to have an increasing reading especially if
the
alcohol was consumed just before the first test was conducted and the
body is still processing the alcohol. This evidence was
corroborated
by Mr Holtzhauzen.
[11]
It was also the uncontested evidence of KWS that it has a Zero
Tolerance
Policy on alcohol, especially since most of their clients
are mines and they also have Zero Tolerance Policies.
[12]
The cross examination of all KWS witnesses in this regard was all
about
the accreditation of the manufacturer of the breathalysing
instruments, Alco Safe (Pty) Ltd (Alco Safe). In fact, the transcript
clearly shows that the arbitrator raised this issue
mero muto
.
He then descended into the arena and cross-examined the witnesses of
KWS on this issue. In the end, he rejected the reliability
of the
breathalysing instruments solely because Alco Safe was not accredited
as a test laboratory in terms of the Accreditation
for Conformity
Assessment, Calibration and Good Laboratory Practice Act of 2006.
Notwithstanding, there was no evidence led in
this regard and, as
clearly shown above, this issue was not in dispute.
[13]
Mr Mokwena conceded during his cross examination that the
breathalyser
tests were part of the standard procedures of KWS and it
was not the first time that he underwent the said test. Strangely,
the
arbitrator found that there were many factors that could have
affected the accuracy of the instruments when they were operated to
test Mr Mokwena. Since Mr Riekert, KWS’s Safety Officer that
performed the second breathalyser test, was not an expert, he
could
not have appreciated the external factors when he conducted the test
on Mr Mokwena. This was a sheer speculation on the part
of the
arbitrator as no evidence was led in this regard.
[14]
The increased reading on the concentration of alcohol was explained,
though not to the satisfaction of the arbitrator. He preferred to
accept the submission by Mr Mokwena’s representative that
the
breathalyser was malfunctioning because of the different readings
which showed an increase in the alcohol concentration without
any
scientific proof as he was convinced that at any given time alcohol
concentration in the body must decrease. I agree that there
is some
truth in the arbitrator’s findings. However, in the matter at
hand, the question was not about the extent of the
alcohol in Mr
Mokwena’s body. Mr Mokwena conceded that he was aware of the
Zero Tolerance Policy and had understood it to
mean that he had to be
100% sober as truck driver. Clearly, in the light of the Zero
Tolerance Policy, once to alcohol is
detected and verified, then that
is the end of the matter.
[15]
Nevertheless, the arbitrator disregarded the Zero Tolerance Policy.
He
was unrelenting in his view that not much weight could be put on a
breathalyser test result if it is not supported by the evidence
that
Mr Mokwena showed signs of being inebriated. Still, he chose to
ignore the evidence of Mr Holtzhauzen about his observation
of Mr
Mokwena’s condition on the day of the incident. I do not agree
with the submission by Ms Tshobonga, Mr Mokwena’s
attorney,
that the arbitrator did consider Mr Holtzhauzen’s evidence in
this regard and rejected it. In paragraph 45 of the
award, he stated
that:
‘
It
is also very important and worth mentioning that there was no
evidence that on 13 March 2015 and/or he was unsteady in his feet.
According to the applicant he was not drunk on 13 March 2015. His
appearance was normal and his speech was not slurred. As much
as the
respondent insisted that the applicant was under the influence of
alcohol but there was no evidence to support this version.
I
therefore deduce from the applicant’s evidence that he was not
under the influence of alcohol.’
[16]
Clearly, Mr Holtzhauzen’s evidence that he observed that Mr
Mokwena’s
eyes were red and that his speech was impaired,
eloped the attention of the arbitrator. As correctly submitted by Ms
Chenia, KWS’s
attorney, the truth of the matter is that KWS did
comply with the requirements to prove that Mr Mokwena was under the
influence
of alcohol, over and above the breathalyser test result, in
accordance with the dicta cited by the arbitrator.
[17]
The arbitrator’s adverse finding on the credibility of Mr
Holtzhauzen
and the consequent rejection of his evidence in its
entirety is untenable. Even if Mr Holtzhauzen was confused or
dishonest about
the presence of Mr Klingbiel when the breathalyser
test was conducted, that could not justify rejecting his evidence in
its entirety.
That is so because his evidence was not seriously
challenged. Conversely, Mr Mokwena proffered no plausible explanation
for testing
positive for alcohol. His defence during the disciplinary
enquiry was that he was on high blood medication hence he tested
positive
for alcohol. When it was proven that his high blood tablets
did not contain alcohol, he abandoned that defence. Despite the
obvious
contradictions in Mr Mokwena’s evidence, the
arbitrator, found him to be honest.
[18]
The
arbitrator also misdirected himself when he found that the sanction
of dismissal was inappropriate. In the light of the nature
of Mr
Mokwena’s duties, a driver of heavy load truck, and the
operations of KWS and its clients; the Zero Tolerance Policy
to
alcohol was a reasonable measure to ensure compliance with safely
rules.
[4]
Mr Mokwena did not
dispute the existence of the Zero Tolerance Policy to alcohol. In
fact, it was Mr Holtzhauzen’s uncontested
evidence that Mr
Mokwena had been inducted on the importance of the safety rules and
that there were constant follow up sessions
to remind the drivers of
those rules.
[19]
Given the
carnage on our roads caused by reckless driving, mainly attributed to
driving under the influence of alcohol, a deviation
from the Zero
Tolerance Policy is serious enough to warrant dismissal. In this
instance, Mr Mokwena was on duty, having driven
from Northern Cape to
Vereeniging with the client’s cargo. He ought to have been
better informed of the consequences of a
positive alcohol test result
given the Zero Tolerance Policy.
[5]
Also, Messrs Klingbiel and Holtzhauzen testified that since Mr
Mokwena’s positive test result for alcohol was picked up by
Idwala, the client, it placed KWS’s service contract in
jeopardy and undoubtedly the employment of his fellow colleagues.
Conclusion
[20]
In all the circumstances, I am persuaded that the
arbitrator
misconceived the nature of the enquiry and consequently there was no
fair trial of the issues. Put otherwise, he diverted
from the correct
path in the conduct of the arbitration and as a result failed to
address the question raised for determination.
Based on this ground
alone, the award stands to be reviewed and set aside.
[21]
I deem it expedient
not
to remit this matter back to NBCRFLI in the interest of justice. The
issues were properly ventilated during the arbitration
proceedings
and the adequacy of the record of those proceedings is not placed in
issue. I am, accordingly, in a position to determine
the matter to
its finality.
[22]
In the light of
the findings I have arrived
at above, it is clear that the dismissal of Mr Mokwena was
substantively fair.
Costs
[23]
It is accepted that costs do not follow the result in this Court; but
the requirements of the law and fairness are a main consideration. In
the matter at hand, I am not persuaded to award costs as
the third
respondent was not
mala fide
and frivolous in defending the
impugned award.
[24]
In the circumstances, I make the following
order.
Order
1.The
arbitration award
dated
18 April 2016
under
case number
GPRFBC34659 is reviewed and set aside and
substituted with the following order:
1.1
The dismissal of Mr Mokwena is substantively fair.
2.There
is no order as to costs.
___________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants: Ms M Chenia from Cliff Dekker
Hofmeyr Inc.
For
the Respondent: Ms A Tshobonga from Ndumiso Voyi Incorporated
[1]
Act 66 of 1995, as Amended.
[2]
[2015] 1 BLLR 50
(LAC) at paras 30-33; see also
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013] 11 BLLR 1074 (SCA).
[3]
Transcript page 30 lines 4 – 21.
[4]
See:
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
(2011) 32 ILJ 1057 (LAC) at para 32.
[5]
See:
XStrata
Coal South Africa v Commission for Conciliation Mediation and
Arbitration and Others
[2014] ZALCJHB 14 at paras 16 to 18.