IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J 1869/00
In the matter between:
GULL FOODS (PTY) LTD Applicant
and
MATLALA, L N N.O. 1
st Respondent
CCMA 2
nd Respondent
GALELA, B D 3
rd Respondent
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JUDGMENT
_______________________________________________________________
CORAM : A VAN NIEKERK AJ
[1] This is an application in terms of section 145 of the Labour Relations Act,
66 of 1995 (“the LRA”), to review and set aside an arbitration award
made by the First Respondent, a Commissioner of the Commission for
Conciliation, Mediation and Arbitration (“the CCMA” ). The award was
made on 15 March 2000, and in it the First Respondent ordered that the
Third Respondent be reinstated in her employ and pa id compensation
equivalent to 10 months’ remuneration.
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[2] The Applicant has been unable to provide a rec ord of the arbitration
proceedings as required in terms of the rules of this Court. The Applicant
has made the effort to compel discovery of the record, but it appears that
the CCMA has mislaid the file. The matter was there fore argued on the
basis of the affidavits and supporting documentatio n filed by the
respective parties, and the terms of the award itself. I shall return to this
aspect and its appropriate consequences after giving consideration to the
arguments raised by the parties.
[3] The Third Respondent was employed by the Appli cant as a supervisor.
The Applicant alleges that on 4 January 1999 she wa s found by her
manager, outside her workplace, sitting down togeth er with another
supervisor. The Third Respondent informed her manager that she was ill.
The manager had been told by one of the Applicant’s other employees
that the Third Respondent was smelling of alcohol. The Third
Respondent was asked by her manager whether she had consumed
alcohol, which she denied.
[4] The Third Respondent was sent to the local cli nic, where she was
examined. The nursing sister on duty called the ma nager and advised
him that the Third Respondent should not be permitt ed to work with
knives, as she appeared to be drunk. In consequenc e of this
conversation, the Third Respondent was sent for a b lood test. The
results of the blood test, made available a day lat er, indicated that the
Third Respondent had a blood alcohol level of 0.16 g per 100 ml. It is
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trite that this exceeds the permissible blood alcohol level in terms of the
National Road Traffic Act by more than three times.
[5] After further investigation, the Applicant dis covered that 5 to 6 tots of
brandy were missing from a fridge to which the Thir d Respondent had
access.
[6] A disciplinary enquiry was conducted on 7 Janu ary 1999. At the enquiry,
the chairperson of the enquiry, a Mr R Store, is re corded as having
testified at the arbitration hearing that the Third Respondent pleaded
guilty to allegations of being drunk during office hours and the theft of
company property, and confined her representations to a plea for
leniency. He stated that the Third Respondent was i nvited to give
evidence in mitigation. The mitigating factors are recorded in the note of
the enquiry as matters relating to the Third Respon dent’s personal
circumstances and in particular, marital difficulti es that she was
experiencing.
[7] The Third Respondent is recorded as having den ied at the arbitration
proceedings that she consumed alcohol on the employer’s premises. She
further denied being under the influence of alcohol, and denied stealing
brandy from the fridge. She stated that she had a stomach ache on
4 January 1999 and that she had been given a cup of vinegar to drink.
She admitted having been sent for the blood test after her manager had
been informed by another employee that she smelt of alcohol. She
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denied pleading guilty at the disciplinary enquiry to the charges against
her. In her answering affidavit, the Third Respond ent states that her
manager had insisted that she must plead guilty to the charges, which
she refused to do.
[8] In his award, the First Respondent recorded th at it was common cause
that the Third Respondent had been dismissed. In so far as the charge of
being under the influence of alcohol while on duty was concerned, the
First Respondent found that the evidence given by t he manager to the
effect that he had been telephoned and told that th e Third Respondent
had been drinking, as well as the information given by another employee
who said that the Third Respondent was smelling of alcohol, was
hearsay. The First Respondent found that the Appli cant had relied
entirely on the results of the blood test to form a n opinion on the Third
Respondent’s condition. In the First Respondent’s view, the result
constituted evidence which was not admissible unles s given by an
expert. In the absence of any expert witness calle d to give evidence at
the arbitration proceedings, the First Respondent r efused to accept the
results of the blood test as proof of the Third Res pondent’s intoxication.
The First Respondent held further that the Third Re spondent had
continued working until the end of the shift of 4 January 1999 and it could
not therefore be said that she was unable to perform the tasks entrusted
to her, nor was any other behaviour suggesting intoxication observed. In
relation to the allegation of theft, the First Resp ondent dismissed the
evidence against the Third Respondent as unreliable and amounting to
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no more than a suspicion. He concluded that the dis missal of the Third
Respondent was substantively unfair but procedurally fair, and ordered
the Applicant to reinstate the Third Respondent and to pay her
compensation equivalent to 10 month’s remuneration.
[9] The test to be applied in an application for r eview brought in terms of
section 145 is well established. An award made by a Commissioner can
be set aside if it is not justifiable as to the reasons given by the arbitrator
having regard to the evidence led in the arbitratio n proceedings under
challenged. (See Carephone (Pty) Ltd v Marcus NO & others (1998) (19)
ILJ 1425 (LAC) and Shoprite Checkers v Ramdaw NO & Others ( (2001)
22 ILJ 1603 (LAC). The arbitrator must therefore have applied his mind
seriously to the issues before him and reasoned his way to the
conclusion he reached in the sense that the conclus ion must be
justifiable as to the reasons given for it. In thi s matter, it appears to me
that the First Respondent did not properly determine the evidence before
him. He did not have regard to the following:
9.1 that the Third Respondent was behaving abnorma lly to the extent
that she was sent to the clinic;
9.2 that her blood alcohol content was teste d on the same day;
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9.3 that it was never in dispute that the blood te st result was in respect
of the test conducted, nor was the result of the te st ever
contested;
9.4 that the evidence of Store, the chairperson at the disciplinary
enquiry was never rejected by the arbitrator as bei ng untrue, nor
was the document generated at the time of the heari ng, which
recorded an admission of guilt by the First Applicant, ever properly
c onsidered or rejected; and
9.5 the Third Respondent had simply offered a bare denial both in
response to the charges against her and in relation to her conduct
during the disciplinary enquiry in circumstances wh ere the
probabilities did not favour the version proffered by her.
[10] In the circumstances of a disciplinary hearin g, and in particular in the face
of what ought to be have been accepted as an admission of guilt on the
charges against her, expert evidence was not necessary to establish that
the Third Respondent was under the influence of alcohol. The result of
the blood test was not put in dispute, nor was its accuracy contradicted,
during the arbitration proceedings. The First Resp ondent appears to
have adopted an overly technical approach by refusi ng to consider the
result of the blood test and drawing self-evident c onclusions from that
result. His apparent insistence on the evidence of an expert, who might
offer evidence only in relation to the degree of th e Third Respondent’s
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intoxication and its effect on her work performance , was misguided. In
relation to the charge of theft, the First Responde nt’s finding that the
dismissal was unfair since the evidence against her amounted to a mere
suspicion is on the face of it similarly not justif iable in relation to the
evidence before the First Respondent . First, the T hird Respondent
admitted guilt to the charge in the disciplinary en quiry, secondly, it was
never in dispute that the bag of brandy in the frid ge had been opened
and that brandy was missing from the bag, thirdly, it appears to be
common cause that the Third Respondent had access t o the brandy in
the fridge and finally, the probability is that the Third Respondent could
not obtain the liquor from anywhere else and as I s tated above, on
balance, she was under the influence of alcohol on the afternoon in
question. However, in the absence of a record and without knowledge
of precisely what evidence, circumstantial or other wise, was adduced
during the arbitration proceedings, I am unable to make a finding in this
regard.
[11] I am persuaded that on the basis of the affida vits filed by the parties and
the terms of the award itself, that for the reasons above, the award
stands to be reviewed and set aside. In any event, and irrespective of
my finding in this regard, the absence of a record in these circumstances
warrants the same conclusion. This Court has held previously that the
failure to provide a proper record of arbitration p roceedings is in itself a
ground for setting aside an arbitration award. In these circumstances, it
would be futile to further attempt to compel the re cord or seek its
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reconstruction. In my view, this is an appropriate case for setting aside
the award for the additional reason of a failure by the CCMA to furnish
the Court with a record of the arbitration proceedi ngs. It is not the
Applicant’s fault that the CCMA’s file has been los t and on balance, it
appears to me when considering the respective preju dice to the parties
that the Applicant’s right of review is an over-rid ing consideration. It is
unfortunate when in circumstances such as these, a matter has to be
reheard, but it would seem to me that an order to t hat effect would be
equitable.
[12] I make the following order:
1 the award made by the First Respondent dated 2 7 March 2000
under case number GA 56865 is reviewed and set aside;
2 the matter is referred back to the CCMA for re hearing before a
different Commissioner; and
3 there is no order as to costs.
_________________________________
ANDRE VAN NIEKERK,
Acting Judge of the Labour
Date of judgment: 20 October 2003
Attorneys for Applicant: Snyman van der Heever Hey ns
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Attorneys for Respondent: Mohlaba and Moshona Inc.