THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR271/2023
In the matter between:
BABALWA INNOCENTIA MSITSHANA Applicant
and
COMMISSION FOR CONCILIATION, First Respondent
MEDIATION AND ARBITRATION
SIFISO NGALA N.O. Second Respondent
SERITI NEW DENMARK COLLIERY Third Respondent
Heard: 12 June 2025
Delivered: 09 September 2025
Summary: Review of arbitration award filed outside the prescribed period of
six weeks – unopposed condonation application granted – totality of evidence
and principles of evidence considered – zero-tolerance approach valid and
justifiable – findings and conclusions of Commissioner reasonable – Review
application dismissed.
JUDGMENT
2
PHAKEDI, AJ
Introduction
[1] The Applicant is approaching this C ourt in terms of section 145 of the Labour
Relations Act1 (LRA), seeking an order to review and set aside the arbitration award
issued by the commissioner of the C ommission for C onciliation, Mediation and
Arbitration (CCMA) under case number M PED 3417-22 dated 23 November 2022.
The Applicant further seeks an order condoning the late filing of her review
application. The review application was filed on 23 February 2023, and the
condonation application was filed on 23 March 2023.
[2] The third respondent, despite raising a preliminary point to the late filing of the
review application, did not file opposing papers when served with the condonation
application. However, the review application is opposed.
[3] The Applicant, in her replying affidavit , took issue with the third respondent’s
late filing of its answering affidavit. It is stated that the answering affidavit ought to
have been filed on or before 21 June 2023. However, despite numerous indulgences
granted to the third respondent, it only filed its answering affidavit on 20 July 2023
without any accompanying application for condonation.
[4] However, despite the preliminary point , the Applicant did not file a notice of
objection together with her replying affidavit. Item 11.4.2 of the repealed Practice
Manual of the Labour Court
2 provides that:
‘Where the respondent or the applicant has filed its opposing or replying
affidavits outside the time period set out in the rules, there is no need to apply
for condonation for the late filling of such affidavits unless the party upon
whom the affidavits are served files and serves a Notice of Objection to the
late filing of the affidavits. The Notice of Objection must be served and filed
1 Act 66 of 1995, as amended.
2 Practice Manual of the Labour Court of South Africa, 2013 (repealed, effective 17 July 2024).
3
within 10 days of the receipt of the affidavits after which time the right to
object shall lapse.’
[5] In the absence of the notice of objection being served on the third respondent,
the application for condonation was not necessary and the answering affidavit will be
considered in determining this matter.
Condonation application
[6] As stated above, the third respondent is not opposing the condonation
application. It is common cause that the review application ought to have been filed
on or during the first week of January 2023, but it was only filed on 23 February ,
which is approximately seven weeks outside the prescribed timeframe.
[7] The Applicant was dismissed for breaching the alcohol policy in that her
results showed a positive alcohol content in her mouth during the routine screening
at her workplace on 2 March 2022. Subsequent to her dismissal, she referred an
unfair dismissal dispute to the CCMA and the arbitration award was issued on 23
November 2022, confirming that her dismissal was substantively fair. S he, however,
received the award on 25 November 2022 from her erstwhile attorneys, Jordan
Coetzee Attorneys, who are on the panel of legal practitioners servicing FNB Law On
Call clients. She held a policy with FNB and she was depending on the cover in
order to be assisted with the matter.
[8] She consulted with Jordan Coetzee Attorneys on 1 December 2022 to discuss
the outcome of the award. She was informed during that consultation that her referral
had been dismissed, and the Attorneys would liaise with FNB to seek further
instructions to review the arbitration award. On 19 December 2022, she went to the
attorneys’ offices to enquire about the status of her matter, and she was advised that
the attorney who was assisting her, a certain Miss Queeneth, was on leave and she
would contact her upon her return.
[9] On or about 20 January 2023, she was advised that her attorneys did not
[9] On or about 20 January 2023, she was advised that her attorneys did not
receive instructions from FNB in respect of the review application. She immediately
4
contacted her insurance, and she was advised that new attorneys were being
appointed. On 31 January 2023, she called again and she was informed that new
attorneys would be appointed within a period of 14 days.
[10] On 13 January 2023, her attorneys of record were appointed to assist with her
review application, and they consulted on 16 February 2023. She then submitted all
the supporting documents to her attorneys of record on 19 February 2023. On 21
February 2023, the review application was served on the respondents and filed at
Court on 23 February 2023. She stated that the late filing of the review application
was occasioned by the withdrawal of her erstwhile attorneys, transition to appoint
new attorneys and the festive season.
[11] She stated that the degree of lateness is not excessive, and the Court must
condone the late filing of her review application because she has good prospects of
success in the main application. She stated that on 2 March 2022, when she
reported for work to resume her night shift duties, she had taken flu medication,
hence she tested positive for alcohol consumption on two occasions between 20h40
and 21h00. She had indicated while she was being tested for the first time that she
had consumed flu medication. Her first test at 20h40 recorded 0.0012 alcohol
content, and the second time after the grace period of twenty minutes , the alcohol
content was recorded at 0.005 at 21h00.
[12] In respect of prejudice, she stated that the respondents would suffer little or
no prejudice i f her condonation application is granted. However, should her
condonation application be refused, she stands to suffer greatly. She further
submitted that she considers the charges levelled against her serious , and if her
dismissal is not uplifted, she will not be able to find work anywhere else in the Mining
industry as the sanction of dismissal will remain in her records forever.
[13] The Labour Court is a creature of statutes and derives its powers and
[13] The Labour Court is a creature of statutes and derives its powers and
jurisdiction from the LRA. In order to exercise its review powers, the court must have
jurisdiction to entertain the application. Furthermore, an Applicant in a condonation
application has to show good cause that she is deserving of the Court’s indulgence
for her non-compliance with its rules and the law.
5
Applicable legal principles
[14] Section 145(1A) of the LRA provides that ‘ the Labour Court may on good
cause shown condone the late filing of an application in terms of subsection (1).’
[15] It is trite that in considering an application for condonation, the Labour Court
exercises a discretion which must be exercised judicially , premised on all the
relevant factors such as good cause, length of delay, explanation for delay,
prospects of success, interests of justice and prejudice.
[16] The onus of showing the existence of good cause in a condonation
application rests with the applicant, and this essentially entails satisfying the two
well-established requirements, namely: (a) providing a satisfactory explanation for
the delay and (b) showing the prospect of success in the main case. The applicant
bears the burden of showing good cause. A mere allegation of good cause will not
be sufficient to assist the Court in exercising its discretion whether to grant
condonation or not. In other words, as stated in Standard General Insurance Co Ltd
v Eversafe (Pty) Ltd and Others
3, the applicant must ‘at least, furnish an explanation
of his default sufficiently full to enable the court to understand how it really came
about and to assess his conduct and motives… Where there has been a long delay,
the court should require the party in default to satisfy the court that the relief sought
should be granted’.
4
[17] The Constitutional Court in Booi v Amathole District Municipality and Others
5
emphasised that condonation is not merely there for the taking. The Court confirmed
that condonation should be granted if it is in the interests of justice, which has to be
determined by reference to all relevant factors , including the nature of the relief
sought, the extent and cause of the delay, the effect on the administration of justice,
prejudice and the reasonableness of the explanation for the delay.
3 [2000] JOL 6440 (W) at para 12.
3 [2000] JOL 6440 (W) at para 12.
4 See also: Aspen Holdings Pty Ltd and Another v Phelane and Another (Aspen Holdings) [2025] 4
BLLR 409 (LAC) at para 14.
5 [2022] 1 BLLR 1 (CC) at para 27.
6
[18] The Labour Appeal Court (LAC) in Govender v Others v Commission for
Conciliation, Mediation and Arbitration and Others 6 expanded the above- mentioned
principles and held that:
‘[57] … The factors relevant in the consideration of the grant or refusal of
condonation include the degree of lateness, the explanation therefor, the
prospects of success and the importance of the case. And in certain cases,
the interest of justice may play a role.
[58] Added to the factors applicable to condonation applications is the
consideration that employment disputes should be dealt with expeditiously as
a delay in the resolution of labour disputes undermines the object of the LRA
and “any determination of the issue of good cause must always be considered
against the backdrop of this fundamental principle” and further that review
applications are by their nature, urgent and must be treated with a degree of
diligence and promptness.’
[19] The LAC in Aspen Holdings Pty Ltd and Another v Phelane and Another
7 held
that ‘… the applicant must also show that prospects of success exist in the main
claim. The applicant has to satisfy the requirements of good cause by making out the
case in the founding affidavit supporting the condonation application’. In Van Wyk v
Unitas Hospital and Others8, the Constitutional Court held that:
‘An applicant for condonation must give a full explanation for the delay. In
addition, the explanation must cover the entire period of delay. And, what is
more, the explanation given must be reasonable.’
[20] The Applicant in this matter has provided a full account of the period from
when she received the arbitration award and provided supporting evidence that the
delays were occasioned by internal arrangements within the FNB Law On Call
Insurance which only gave instructions for her to be assisted on 14 February 2023.
The review application was served and filed within a period of two weeks from the
date of this approval.
6 [2024] 5 BLLR 453 (LAC).
date of this approval.
6 [2024] 5 BLLR 453 (LAC).
7 Aspen Holdings supra at para 15.
8 2008 (4) BCLR 442 (CC) at para 22.
7
[21] During the arbitration proceedings, she was represented by a firm of attorneys
who were instructed by her Insurer , and it is the same Insurer who had taken a
decision to move the matter to a new firm of attorneys. The Applicant acted
immediately upon being informed that the mandate of her erstwhile attorneys had
been terminated. When the mandate was terminated, the six -week period had
already passed, and none of the delays could be attributed to her.
[22] In South African Transport and Allied Workers’ Union obo Members v South
African Airways (Pty) Ltd and Others
9, the LAC held that
‘…The remainder of the period [ of delay ] was caused by the internal
processes within the appellant [ trade union ] in taking a decision to proceed
with the claim and instructing attorneys accordingly. Although the period is
lengthy, it has been, in my view, adequately explained and it would be unfair
to punish the individual employees for a process they did not have direct
control…’
[23] In applying the above principles to the present application, this Court is of the
view that although the period of delay is excessive, and the Applicant has provided
an explanation for the delay , and the delay cannot be imputed solely on her , but on
the internal processes of the insurance company. Although the condonation
application was only filed four weeks after the review application had been launched,
the Court is satisfied that the Applicant took all the reasonable steps to prosecute her
matter diligently. The Court is of the view that it is in the interests of justice and
fairness that the late filing of the review application be condoned for the purposes of
properly considering the applicant’s prospects of success in the review application.
Background facts
[24] The Applicant was employed by the third respondent, a mining company , in
the position of Faceboss on 11 November 2018 until she was dismissed on 26
th May
the position of Faceboss on 11 November 2018 until she was dismissed on 26
th May
2022, subsequent to being found guilty of a misconduct of breach of the third
9 [2015] 2 BLLR 137 (LAC) at para 16.
8
respondent’s alcohol policy on 2 March 2022. The Applicant then unsuccessfully
lodged an appeal seeking to overturn her dismissal, but the dismissal was upheld.
[25] She then referred an unfair dismissal dispute to the CCMA and the second
respondent was appointed to deal with the matter. Two witnesses testified on behalf
of the third respondent and the applicant testified in her own defence. She denied
that she breached any rule or standard regulating conduct in or relevant to her
workplace. Her case was that on the day in question, she had consumed Alcophyllex
cough syrup which contains alcohol, and she did report this to the Officer who was
administering the breathalyser test.
Arbitration proceedings and the award
[26] The third respondent’s first witness was Ms Princess Mdletshe who testified
that she was employed by Bidvest Protea Coin as a Security Officer. She was
qualified to operate the Lion AlcoBlow Rapid Test and Lion Alcometer 500. Her
responsibilities included alcohol screening and testing of all persons entering the
mine. She testified that the general rule in the workplace was that no person who
had tested positive and had alcohol in his/her system should be allowed to enter the
mine.
[27] Prior to administering any breathalyser, she ensured that the machine is
properly calibrated. The calibration certificate for the Lion Alcometer 500 indicated
that it was calibrated on 29 November 2021 and it was due for the next calibration
cycle on 29 May 2022. She testified that she followed the procedure prescribed in
clause 7 which regulated the Alcohol Screening and Testing Procedure. She testified
that she followed the procedure by testing the Applicant twice with a twenty -minute
interval between the two tests in line with the Procedure.
[28] She stated that she first tested the Applicant at about 20h40 using the Lion
Alcoblow Rapid Test machine which indicated through a sound that the Applicant
Alcoblow Rapid Test machine which indicated through a sound that the Applicant
had alcohol in her system. She then invited her to come inside the g uard house
where she used a different machine, the Lion Alcometer 500 and her results came
back showing 0.012 alcohol content in her system.
9
[29] She then requested the Applicant to wait for twenty minutes in order for the
second test to be conducted. During the wait ing period, the Applicant requested
drinking water as she was sweating and dehydrated. She then informed the
Applicant that she was not allowed to consume any liquids during the waiting period.
However, the Applicant drank Tropika juice and later consumed Grand- Pa powder,
and all this was recorded on video footage. She then started requesting permission
to use the bathroom, and she was allowed to do so on more than three occasions.
[30] At about 21h00, she requested her supervisor to assist her in conducting the
second test on the Applicant. She used the Alcometer 500 machine, and the reading
was 0.005. Immediately after the second test was carried out, her supervisor, Lucky
Khumalo, completed the Sensory Evidence Checklist (checklist) at around 21h01.
She confirmed the correctness of what is recorded in the checklist with respect to the
Applicant’s aggressive and unorthodox behaviour. The Applicant was requested to
exit the mine. The Applicant then informed her that she had taken Alcophyllex cough
syrup just before her shift, but she did not produce the bottle of such medication. She
further testified that the Applicant smelled of alcohol on her breath, and she had
informed her that she had consumed alcohol the previous day.
[31] The second witness was Mr Mduduzi Mbatha, who testified that he was
employed by the third respondent as Human Resources Coordinator. He stated that
the third respondent bought the m ine from Anglo American Coal in 2018, and they
continued to apply the same policies which were applicable prior to the sale of the
business. He confirmed that the two testing machines (Lion AlcoBlow Rapid Test
and Lion Alcometer 500) w ere used consistently , on a daily basis. He stated that
formal blood tests were only undertaken when there was an incident underground i n
the mine.
the mine.
[32] He further testified that the Applicant was fully aware of the workplace rule
that no persons are allowed to report for duty while under the influence of alcohol.
He made reference to an incident which took place on 5 September 2019, when the
Applicant was charged for breaching the alcohol policy and she pleaded guilty. She
10
was then given a final written warning and was referred to the Employee Assistance
Program offered by the Careway Group.
[33] The Applicant testified in her own defence and confirmed that during her
induction, she was subjected to safety training and standards. She, however,
disputed being trained on the Alcohol and Drugs Related Policy. She stated that on 1
March 2022, she consulted Doctor Eze and he prescribed some flu medication for
her. On the afternoon o f 2 March 2022, she drank her medication. She admitted to
testing positive for alcohol on 2 March 2022. She informed Ms Mdletshe that she had
taken flu medication, but she rejected her version and did not ask her to produce that
medication. She was also not given an opportunity to present her medical certificate,
and it was only considered by the chairperson of the disciplinary hearing.
[34] She further denied that she had consumed any alcohol on 1 March 2022, as
stated by Ms Mdletshe, because she was working night shift on that day. She further
disputed the correctness of the information captured in the checklist and denied that
she was smelling of alcohol or that she was aggressive on the day in question. She
further confirmed that in 2019, she was given a final written warning for reporting for
duty while under the influence of alcohol , but clarified that the warning had expired
when she was charged again in March 2022. She further confirmed that she had
visited the bathroom as captured on the CCTV footage, but there was nothing
unusual about such bathroom breaks.
[35] She further confirmed having represented the employer as a complainant
against a junior employee within her section, a certain Simelane, just before she was
also charged. She stated that she was not the one who charged him , but she was
only the complainant , and it was the Human Resources Department which had
charged the employee. She further confirmed that there was a rule within the
charged the employee. She further confirmed that there was a rule within the
workplace which prohibited employees from reporting for duty while under the
influence of liquor, but maintained that she had not consumed liquor.
[36] In support of her case, the Applicant called Mr Nkosana Maduna. He testified
that he had represented the Applicant during the internal disciplinary and appeal
hearing. He stated that the procedure followed by the third respondent was flawed in
11
that the Applicant was suspended without being afforded an opportunity to respond,
and the third respondent had failed to provide them with the Alcohol and Drug Policy
when they requested it.
[37] He stated that he had joined Seriti in April 2020, and the Alcohol and Drug
Policy was never discussed during induction sessions. He further confirmed that the
final written warning issued to the Applicant had lapsed after a period of six months
from the date of issue, and it was no longer in place when the Applicant was charged
on 2 March 2022; as such, the sanction of dismissal was too harsh. He, however,
admitted that the third respondent had a zero- tolerance approach to employees
reporting for duty under the influence of alcohol.
[38] At the close of proceedings, the Commissioner found that the dismissal of the
Applicant was substantively fair and upheld the dismissal. The Applicant is aggrieved
with the outcome of the award and seeks to have same reviewed and set aside.
Applicant’s grounds for review
[39] The Applicant is challenging the arbitration award on certain grounds,
including that the Commissioner committed gross irregularities in the conduct of the
arbitration proceedings by disregarding the material evidence which was placed
before him , and this resulted in him reaching a decision which a reasonable
decision-maker could not have reached. The other ground is that the Commissioner
had accepted the Applicant’s unchallenged version that she had taken flu medication
just before she was tested, and this explained why alcohol was found in her system.
[40] It was also submitted on behalf of the Applicant that t he Commissioner failed
to have regard to her medical certificate , which was submitted as part of the
evidence, and failed to appreciate that she had requested blood tests to be done on
the day of testing to prove that she had not consumed alcohol. The Applicant further
takes issue with the fact that the Commissioner recited the provisions of the
takes issue with the fact that the Commissioner recited the provisions of the
Disciplinary Code without stating how it applied to her matter. Paragraph 61 of the
award records that:
12
‘The disciplinary code contains a waiver that says disciplinary penalties which
are still in force should be considered when deciding disciplinary action on
any subsequent occasion, except (sic) in cases of habitual violations.’
[41] The Applicant argued further that the Commissioner committed a misconduct
during the proceedings by failing to allow her time to consult with her legal
representative.
[42] The Applicant further took issue with the fact that the Commissioner admitted
the Alcohol and Drug Policy as evidence, although it was in dispute. She submitted
that the Policy belonged to Anglo Coal e mployees and not employees of Seriti New
Denmark. By accepting this p olicy, he ignored the fact that the third respondent
failed to rely on its own p olicy as the Procedure clearly stated that Seriti has a clear
policy on Alcohol and Drug Related Behaviours. By doing this, he therefore arrived at
an unreasonable conclusion that the Applicant was a habitual violator of the policy
without any supporting evidence.
[43] The Applicant further takes issue with the fact that the policy was not strictly
followed in that she was not given a full 20- minute grace period from the first test.
She states that the Commissioner reached an unreasonable conclusion when he
accepted the evidence as recorded in the checklist that she was given a full grace
period, and this deprived her of an opportunity to fully state her case.
[44] The third respondent argued that the Commissioner correctly rejected the
evidence of the Applicant and the Court should not interfere with the arbitration
award as it falls within the band of reasonableness. The third respondent did not
dispute that the Applicant had informed Ms Mdletshe that she had taken Alcophyllex
cough mixture, but this was only after the second test . However, the evidence of
Mdletshe that the alcohol from the cough mixture would not appear in the results
after a grace period of 20 minutes was not challenged.
after a grace period of 20 minutes was not challenged.
[45] It was disputed that the Applicant was not aware of the rule and/or the policy ,
as she had attended induction sessions upon her employment. As a supervisor , she
was responsible for disciplining junior employees within her section, and she had
13
previously pleaded guilty to breaching the same Alcohol Policy and was given a final
written warning. Her testimony was that it took about 15 to 16 minutes for the alcohol
in the cough mixture to dissipate in the mouth, and this evidence was not challenged.
[46] The third respondent submitted that the Commissioner was correct to reject
the evidence that the Applicant was denied an opportunity to do blood tests. Ms
Mdletshe had indicated that she was not aware that the Applicant had requested
such, and this was never challenged any further by her representative. However, Mr
Mbatha had dealt with this aspect and submitted that blood tests in the mine are only
conducted when there is an incident underground.
[47] The third respondent further argued that the Applicant was correctly
dismissed, and the third respondent had applied corrective discipline when she was
given a final written warning in 2019. The existence and application of the Alcohol
and Drug Policy has been in place since 2008, as per the evidence of Mbatha. He
referred to two separate documents, the Alcohol and Drug Testing Procedure, which
sets out the process to be followed by officers testing employees on arrival, and the
Policy on Alcohol and Drug R elated Behaviour, which provides for the first offender
to be given a final written warning, and the second offender to be dismissed.
[48] It was further disputed that the Applicant was not afforded the full 20- minute
grace period. The record confirms that the Applicant was first tested at 20h40, she
requested to go to the bathroom at 20h41, the first test using Alcometer 500 was
conducted inside the Guardhouse at 20h44, at 20h54 the Applicant was seen
drinking Tropika and Grand-Pa, and the final test was taken at 21h00.
[49] The Applicant is seeking an order that the arbitration award be reviewed and
set aside. On the other hand, the third respondent is seeking the dismissal of the
set aside. On the other hand, the third respondent is seeking the dismissal of the
review application on the basis that there is no evidence that another reasonable
commissioner could have come to a different conclusion, taking into account the
nature of the misconduct and the evidence presented by both parties.
The test for review
14
[50] The Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines
Ltd and Others 10 (Sidumo) held that ‘ the reasonableness standard should now
suffuse s 145 of the LRA 11’, and that the threshold test for reasonableness of an
award ‘…is [whether] the decision reached by the commissioner one that a
reasonable decision maker could not reach?’12
[51] The Supreme Court of Appeal in Herholdt v Nedbank Ltd (Congress of SA
Trade Unions as Amicus Curiae)13 (Herholdt) held as follows:
‘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.’
[52] In this matter, the Applicant has listed a number of grounds for review which
have been summarised above. The third respondent submitted that the award,
viewed holistically, falls within the band of reasonableness in that the Commissioner
arrived at a decision that a reasonable decision- maker could have arrived at based
on the evidence presented by both parties.
[53] The debate on the right to review an arbitration award on process -related
grounds as opposed to result -related grounds was finally settled by the LAC in Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration and Others
14.
[54] In a review of an arbitration award, the Labour Court is required to apply the
test, ‘is the decision reached by the commissioner one that a reasonable decision-
maker could not reach?’
15 In determining whether the result of an arbitrator’s award
is unreasonable, the Labour Court must broadly evaluate the merits of the dispute
and consider whether, if the a rbitrator’s reasoning is found to be unreasonable, the
and consider whether, if the a rbitrator’s reasoning is found to be unreasonable, the
10 (2007) 28 ILJ 2405 (CC) (Sidumo).
11 Ibid at para 106.
12 Ibid at para 110.
13 2013 (34) ILJ 2795 (SCA) at para 25.
14 (2014) 35 ILJ 943 (LAC) at paras 13 - 18.
15 See: Sidumo supra at para 110.
15
result is nevertheless capable of justification for reasons other than those given by
the arbitrator. 16 The result will, however, be unreasonable if it is entirely
disconnected from the evidence, unsupported by any evidence and involves
speculation by the arbitrator.17
[55] The Supreme Court of Appeal in Herholdt
18 held as follows:
‘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.’
[56] In Head of the Department of Education v Mofokeng & Others
19, the LAC held
that the failure by the arbitrator to apply her mind to the issue which are relevant
would ordinarily constitute an irregularity, but for an award to be susceptible to being
set aside, it must, in addition to the irregularity, result in the misconception of the real
inquiry to be determined or the ultimate outcome must be unreasonable.
[57] In CUSA v Tao Ying Metal Industries and others
20, the Constitutional Court
held that it is now axiomatic that a commissioner of the CCMA (or an arbitrator of a
bargaining council) is required to apply his or her mind to the issues before him or
her and that failure to do so may result in the ensuing award being reviewed and set
aside. The irregularity must , however, result in an unreasonable outcome or
misconception of the true enquiry , resulting in no fair trial of the issues. A review
court is not at liberty to pick and choose certain aspects of the award and evaluate
them independently, as such a piecemeal approach will defeat the requirements in
section 138 of the LRA.
Evaluation
16 See: National Union of Mineworkers & a nother v Samancor Ltd (Tubatse Ferrochrome) & others
(2011) 32 ILJ 1618 (SCA).
17 Herholdt supra
(2011) 32 ILJ 1618 (SCA).
17 Herholdt supra
18 Ibid at para 25.
19 (2015) 36 ILJ 2802 (LAC) at para 30 to 33.
20 [2009] 1 BLLR 1 (CC) at paras 76 and 134.
16
[58] It is common cause between the parties that the Applicant reported for work
on 2 March 2022, and upon arrival , she followed the procedure prescribed for all
employees, and she presented herself for screening. The third respondent relies on
Security Officers who are stationed at the entrance to ensure that all persons
entering the m ine have been screened and are not suspected of having consumed
alcohol and/or drugs.
[59] In order to carry out this screening process, there are two machines used by
Officers, namely, Lion AlcoBlow Rapid Test and Lion Alcometer 500. The AlcoBlow
Rapid Test is used at the gate upon entering the mine, and the Alcometer is used
once the employee has tested positive after being screened with the AlcoBlow Rapid
Test. The Applicant was screened at 20h40, and her results indicated that she had
alcohol in her breath/system. This necessitated Ms Mdletshe to invite her to the
guard room, where she was now tested with the Alcometer 500, and the machine
confirmed that she had alcohol in her breath. In line with the procedure, she was
given a grace period of 20 minutes as outlined above. However, at 21h00, when she
was tested again, her results confirmed that she had alcohol in her breath. As a
result of this positive test, she could not be allowed to resume her duties.
[60] The Applicant does not dispute that she had tested positive for alcohol on
more than one occasion. Her version, however, is that the alcohol in her breath was
from the Alcophyllex cough mixture, which she had consumed prior to starting her
shift. The third respondent’s argument is that as a m ining business, it has a zero -
tolerance approach to alcohol and drug usage on its premises , as this places many
lives at risk.
[61] In review proceedings, the court is required to determine whether the
commissioner complied with the requirements prescribed in section 138 of the LRA .
The Court is satisfied that in this matter, the Commissioner identified the nature of
The Court is satisfied that in this matter, the Commissioner identified the nature of
the dispute he was required to arbitrate, he afforded both parties an opportunity to
lead and adduce evidence, and he gave reasons for his award. The award succinctly
demonstrates that he fully understood the nature of the enquiry before him, which
was to determine the fairness of a dismissal of the Applicant for breaching the
alcohol policy.
17
[62] The third respondent’s policy on Alcohol and Drug Related Behaviour
provides for the first offender to be given a final written warning and the second
offender to be dismissed. The Applicant had already been given the final written
warning in 2019, although it had expired at the time when she was charged on 2
March 2022. What the Applicant seems to have lost sight of is the fact that no
employee is permitted to report for duty under the influence of drugs or alcohol ,
regardless of whether that alcohol is as a result of medication or not. Alcohol is
strictly prohibited in the workplace, and the Commissioner accepted this to be a
zero-tolerance policy.
[63] In Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and others
21, the LAC outlined principles applicable to the zero- tolerance
policy as follows:
‘[17] It is also necessary to make some further remarks as regards dismissal
for a first offence i.e. a “zero tolerance” policy. A dismissal will only be fair if it
is procedurally and substantively fair. A commissioner of the CCMA or other
arbitrator is the initial and primary judge of whether a decision is fair. As the
code of good practice enjoins, commissioners will accept a zero tolerance if
the circumstances of the case warrant the employer adopting such an
approach.
[18] But the law does not allow an employer to adopt a zero- tolerance
approach for all infractions, regardless of its appropriateness or proportionality
to the offence, and then expect a commissioner to fall in line with such an
approach. The touchstone of the law of dismissal is fairness and an employer
cannot contract out of it or fashion, as if it were, a “no go area” for
commissioners. A zero -tolerance policy would be appropriate where, for
example, the stock is gold but i t would not necessarily be appropriate where
an employee of the same employer removes a crust of bread otherwise
designed for the refuse bin…
…
21 (2015) 36 ILJ 2273 (LAC).
18
[22] Even assuming that the appellant was pursuing a zero-tolerance policy,
it was not one that is appropriate for an infringement of this rule without further
evidence from appellant for the justification of such an inflexible policy. In any
event, the commissioner is required to consider whether the circumstances of
the case warrant dismissal. If it does not, then irrespective of the company’s
policy, the commissioner is at large to set the dismissal aside and replace it
with an appropriate sanction.’
[64] In this matter, the Applicant had been pardoned on the previous occasion
when she transgressed the rule in 2019, and she was given a final written warning.
Although the warning had lapsed at the time of her second transgression, the policy
made provision for habitual transgressors to be dismissed. The third respondent also
led evidence confirming that the rule and the policy were applied strictly and
consistently. It cannot , therefore, be said that the third respondent’s zero- tolerance
policy infringed on her rights not to be dismissed unfairly. The applicant was aware
of the existence of the rule, the compulsory screening at the entrance and the fact
that other employees had been dismissed for having transgressed the same policy.
[65] In Builders Trade Depot v C ommission for C onciliation, Mediation and
Arbitration and Others
22, the Labour Court held that commissioners must consider
whether there was a workplace rule, if the employee was aware of it and whether the
rule was willfully broken. Additionally, a commissioner is required to evaluate the
nature and responsibilities of the job, the significance of the rule, the employee’s
disciplinary record, the process of progressive discipline, and the potential harm
caused by the misconduct.
[66] The Applicant argued that the third respondent had not led any evidence
demonstrating that the working relationship had irretrievably broken down, and the
demonstrating that the working relationship had irretrievably broken down, and the
Court does not believe that it was necessary for the Commissioner to first get that
evidence in order to uphold the dismissal . Item 3(4) of the Code of Good Practice:
Dismissals
23 (the Code) provides that ‘generally, it is not appropriate to dismiss an
22 (2012) 33 ILJ 1154 (LC) at para 43.
23 Schedule 8 of the LRA.
19
employee for a first offence, except if the misconduct is serious and of such gravity
that it makes a continued employment relationship intolerable’.
[67] Item 7 of the Code provides that any person who is determining whether a
dismissal for misconduct is unfair should consider:
‘(a) whether or not the employee c ontravened a rule or standard regulating
conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have
been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer;
and
(iv) dismissal was an appropriate sanction for the contravention of the rule
or standard.’
[68] The Commissioner was satisfied that there was a rule in the workplace, the
rule was reasonable and valid, the Applicant was aware of the rule since she had
previously pleaded guilty to the same misconduct, the rule had been applied
consistently in the workplace, and dismissal was an appropriate sanction. In
Sidumo
24, the Constitutional Court listed a number of factors (which is not a closed
list) that a n arbitrator must consider when deciding on the fairness of a dismissal.
These factors are:
(i) the importance of the rule that was breached;
(ii) the reason the employer imposed the sanction of dismissal;
(iii) the basis of the employee’s challenge to the dismissal;
(iv) the harm caused by the employee’s conduct;
(v) whether additional training and instruction may result in the employee
not repeating the misconduct;
(vi) the effect of dismissal on the employee; and
(vii) the long-service record of the employee.
24 Ibid at para 78.
20
[69] Having regard to the evidence in totality, this Court finds that the decision of
the arbitrator was one that a reasonable decision maker could make. Although the
late filing of the review application has been condoned, the review application cannot
succeed and stands to be dismissed.
Costs
[70] The first respondent sought costs in the event that the application is
dismissed. It is trite that the awarding of costs in the Labour Court is discretionary as
envisaged in section 162 of the LRA. The Constitutional Court in Long v SA
Breweries (Pty) Ltd and Others
25 held as follows:
[27] It is well accepted that in labour matters, the general principle that
costs follow the result does not apply. This principle is based on s 162 of the
LRA, which reads:
“(1) The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
(2) When deciding whether or not to order the payment of costs, the
Labour Court may take into account —
(a) whether the matter referred to the Court ought to have been referred to
arbitration in terms of this Act and, if so, the extra costs incurred in referring
the matter to the Court; and
(b) the conduct of the parties —
(i) in proceeding with or defending the matter before the Court; and
(ii) during the proceedings before the Court.”
[28] The relationship between the general principle of costs and section 162
was considered and settled by this Court in Zungu:
“In this matter, there is nothing on the record indicating why the Labour Court
and Labour Appeal Court awarded costs against the applicant. Neither court
gave reasons for doing so. It seems that both courts simply followed the rule
that costs follow the result. This is not correct.
25 (2019) 40 ILJ 965 (CC).
21
[71] Based on the above authorities, this court comes to the conclusion that it is in
the interests of the law and fairness that each party be burdened with their own
costs.
[72] In the result, I make the following order:
Order
1. The condonation application for the late filing of the review application
is granted.
2. The review application is dismissed.
3. There is no order as to costs.
G C Phakedi
Acting Judge of the Labour Court of South Africa.
Appearances:
For the Applicant: W Ojemekele of Mudau & Netshipise Attorneys
For the Respondent: M Maeso of Shepstone & Wylie Attorneys