THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: JR2232/23
In the matter between:
LIZELLE LEHMANN Applicant
and
SYLVANIA METALS (PTY) LTD First Respondent
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION Second Respondent
COMMISSIONER KENNETH DLAMINI N.O Third Respondent
Heard: 12 November 2025
Delivered: 8 June 2026
Summary: An application to review a ruling issued during the arbitration
proceedings, and an award which found the dismissal of an employee for being
under the influence of alcohol and testing positive for alcohol was substantively fair.
The review succeeds because the commissioner denied the applicant the
opportunity to call an expert witness.
(1) Reportable: No
(2) Of interest to other Judges: No
8 June 2026
Signature Date
JUDGMENT
GANDIDZE, J
Introduction
[1] Ms Lizelle Lehmann, the applicant, was employed by Sylvania Metals (Pty)
Ltd (Sylvania or the employer) as a Planning Administrator. On 7 October
2022, she arrived at the Lesedi Plant (Plant), a client site, and was subjected
to a mandatory breathalyser test. The first test at 05H30 returned a reading of
0.11%. She took a second test at 05H45 using the same equipment, which
recorded 0.06%. A third test was conducted an hour and a half later, using a
different machine, yielding a result of 0.00%. Sylvania does not recognise this
third test. Nevertheless, the applicant proceeded onto the site, and Sylvania
disputes that she was authorised to do so. Weeks later, the applicant was
suspended and subsequently subjected to a disciplinary hearing to answer a
charge of:
‘Reporting to work under the influence of alcohol in that, on the 7 October
2022, you reported that Lesedi plant and tested positive from a mandatory
alcohol testing at the entrance gate. The following readings were recorded
from 0.11% BAC (first test) and 0.06% (second test).’ (sic)
[2] She was found guilty and dismissed. An internal appeal failed, and the dispute
was referred to the Commission for Conciliation, Mediation and Arbitration
(CCMA).
[3] It is common cause that Sylvania employees, as contractors for Samancor
Chrome Mines working on Samancor Plants, including the Lesedi Plant, are
subject to Samancor's Drug and Alcohol Procedure (Policy). The stated
purpose of the Policy is, inter alia, to ensure workplace safety by enforcing a
zero-tolerance policy.
[4] During the arbitration proceedings, the commissioner issued a ruling on 11
July 2023, ordering Sylvania to furnish the applicant with certain
documentation she had requested, as discussed later. The documents were
not provided. At a subsequent sitting on 7 August 2023, the applicant sought
an order holding Sylvania in contempt for failing to provide the documents. At
the same sitting, Sylvania objected to the expert notice and the
supplementary expert notice served by the applicant on 24 May and 28 July
2023, respectively.
[5] On 17 August 2023, the commissioner issued a ruling dismissing the
application to hold Sylvania in contempt and upholding Sylvania’s objection to
the expert notices. Thereafter, t he arbitration proceedings continued to
finalisation, and in an award dated 22 October 2023, the commissioner
dismissed the applicant’s unfair dismissal claim.
[6] This application, brought in terms of sections 145 and 158(1)(g) of the Labour
Relations Act
1 (LRA), seeks to review and set aside th e ruling dated 17
August 2023 and the award dated 22 October 2023. The applicant seeks the
substitution of the award with an order that her dismissal was substantively
unfair, a lternatively, an order remitting the matter to the CCMA for a fresh
hearing before a different commissioner.
[7] Sylvania opposed the review application. In oral argument, Mr Makka, for
Sylvania, submitted that several pages were missing from the pleadings
bundle and that the supplementary affidavit need not be considered because
it was not included in that bundle.
[8] The preliminary points need not detain the court. It is true that a page or two
are missing from the award annexed to the founding affidavit, but a complete
copy of the award forms part of the review record.
[9] As regards the supplementary affidavit, it formed part of the pleadings, even
though it is titled ‘Founding Affidavit’. This second ‘founding affidavit’ contains
the following paragraph:
‘1.4 I have read my answering affidavit and the subsequent record filed,
and now elect to supplement my founding affidavit and Notice of Motion in
the paragraphs below.’
[10] Accordingly, the supplementary affidavit is properly before the court.
1 Act 66 of 1995, as amended.
[11] In any event, the only additional issues raised in the supplementary affidavit
are that the applicant sought retrospective reinstatement and that the same
machine could not be used to validate the result of a second test. Sylvania
addressed both contentions.
The arbitration proceedings
[12] The pre- arbitration minute was read into the record at the start of the
arbitration proceedings, and both substantive and procedural fairness were
disputed.
[13] The arbitration proceedings commenced on 13 April 2023. The next hearing
dates were set for June 2023, but Sylvania’s legal representative fell ill. When
the proceedings resumed on 7 August 2023, two issues arose, and the
commissioner postponed the matter to rule on them. The ruling was issued on
17 August 2023, and the matter was scheduled for a hearing on 3 and 4
October 2023 and was finalised.
[14] In relation to the evidence, Sylvania called Mr Kevin Pabst (Pabst) as its
witness, and the applicant gave evidence in her own case.
Pabst’s evidence and rulings issued
[15] Pabst testified that he was employed by Sylvania as the Group Safety, Health,
Environmental, and Security Manager (the SHES Manager). Following
rumours of alcohol -related cases at the Lesedi Plant that had not been
escalated, he was tasked by the Executive Committee to investigate. He
learnt of the incident on 7 October 2022 involving the applicant, which was
recorded in the security occurrence book but had not been escalated.
[16] Mandatory testing was conducted by security personnel at the main access
security entrance. The security personnel received training. The Policy refers
to an additional device because Samancor does not have an iBlow10
machine, which Sylvania has. It is a two -in-one device that scans for alcohol
and, if it detects alcohol, displays a red light (scanner). It then measures the
alcohol content (meter) and returns a reading above 0.00%.
[17] The third test administered to the applicant was not in accordance with the
[17] The third test administered to the applicant was not in accordance with the
Policy, was not authorised by the Chief Safety Officer, Mr Eugene (Eugene),
and was not recorded in the security occurrence book. The applicant drank
water between the first and second tests, allowing time for the alcohol to leave
her system.
[18] On 7 October 2022, the iBlow10 machine was operational, and of all the
employees tested, only the applicant tested positive for alcohol. The applicant
was aware that being under the influence of alcohol is a dismissible offence.
This was in line with the zero- tolerance policy on alcohol. Eugene was the
only person authorised to allow the applicant to enter the site on 7 October
2022, and he had not done so. He also did not authorise a third test for the
applicant.
[19] The iBlow machine had last been calibrated on 19 May 2022, and the
Calibration Certificate was valid for 12 months.
[20] During Pabst's cross-examination, the applicant filed an application for certain
documents, which was granted ‘in the interests of fairness and justice.’
However, when the arbitration proceedings resumed on 7 August 2023,
Sylvania had not provided the applicant with the requested documents,
prompting the applicant to seek to have Sylvania held in contempt. Sylvania
disputed that it was in wilful disregard of the 11 July 2023 ruling, as it was not
in possession of the documents it had been ordered to discover.
[21] On 28 July 2023, the week before the set -down date of 7 August 2023, the
applicant served a supplementary expert notice. The initial notice had been
filed on 24 May 2023. At the hearing on 7 August 2023, Sylvania objected to
the expert notice, contending that the pre- arbitration minute does not indicate
that the applicant will call an expert witness; that the expert notice ought to
have been served before 13 April 2023, when the arbitration proceedings
commenced; that at the start of the proceedings the applicant did not indicate
that she would call an expert witness; and that, if the expert notices were
admitted, Sylvania would be prejudiced, as its witness was already under
admitted, Sylvania would be prejudiced, as its witness was already under
cross-examination and could not be consulted on their content. The
commissioner postponed the matter to consider and rule on the contempt
application and the objection to the applicant’s expert notice.
[22] In a ruling dated 17 August 2023, the commissioner disallowed the expert
notices. He reasoned that the issue was ‘never mentioned’ in the pre- trial
minute and that ‘the above authority is very clear on the issue of bringing an
expert witness’.
2
[23] The commissioner also held that Sylvania was not in wilful disregard of the
ruling of 11 July 2023, as it was not in possession of the documents sought,
and that Samancor ought to have been joined to the proceedings.
[24] The arbitration proceedings continued on 3 and 4 October 2023, with the
conclusion of Pabst's cross -examination and re- examination, and the
applicant taking the stand.
Applicant’s evidence
[25] As a Planning Administrator, her duties included overseeing the rollout of
Sylvania’s computerised maintenance management system at the Millsell,
Mooinooi and Lesedi Plants.
[26] On 7 October 2022, she was subjected to a mandatory breath alyser test and
tested positive twice, first 0.11% and then 0.06% . Mr Louw, the Plant
Manager, and the Site Safety Officer were called to the scene. Louw gave her
a bottle of water. Louw telephoned Eugene, who instructed that a third test be
conducted using an A500 machine. When tested on the A500 machine, the
result was 0.00%. Her demeanour was not recorded. She remained on site,
then left to collect blood results from her doctor, and went to the Mooinooi
Plant to hand them in. She had consumed two glasses the previous night, as
she regularly did. In cross- examination, she stated that she had been
employed by Segment Earth as a Planner since 18 June 2023, at a salary of
R40 000.
3
Parties closing arguments
[27] Sylvania submitted that the applicant took the second test after Mr Louw gave
her water to allow the alcohol to leave her system. Therefore, the applicant
was an equal participant in concealing the incident. The applicant was
2 The statement was made after referring to Rule 37A of the CCMA Rules.
3 At Sylvania she earned R43 957.99.
required to report the incident to her Engineer at Millsell, where she was
predominantly based, but failed to do so. Sylvania could not take her back, as
the trust relationship had broken down. She conceded that she regularly
consumed glasses of wine in the evenings, showed no remorse, and failed to
disclose that, at the time of the arbitration proceedings, she had secured other
employment.
[28] On behalf of the applicant, it was submitted that she did not fail the
breathalyser test. The additional equipment, which is mandatory under the
Policy, returned a negative result. The iBlow10 machine measures alcohol
content in mg/l, whereas the Policy requires the alcohol percentage. The
Policy distinguishes between testing positive for alcohol and being under the
influence of alcohol, and Sylvania did not clarify what the applicant was
charged with. No evidence was led to show that the applicant was unable to
perform her duties on the day in question. Wright, who signed the Calibration
Certificate, was not called as a witness, nor were his qualifications presented.
The Calibration Certificate states that measurements are only valid at the time
of calibration and therefore cannot guarantee results for 12 months. It also
states that accuracy depends on factors such as care exercised in handling
the instrument and frequency of use, and no evidence was led on these
issues. No evidence was presented that the securit y officers who conducted
the first two tests on the applicant were trained as required. A breathalyser is
not a calculator, and therefore its results are not conclusive. Although she had
commenced employment elsewhere effective 18 June 2023, the applicant
sought retrospective reinstatement with Sylvania. She also sought costs.
The award
[29] After referring to several case authorities dealing with specific legal issues,
the commissioner recorded that what happened on 7 October 2022 was
common cause, followed by a charge that the applicant reported for work
common cause, followed by a charge that the applicant reported for work
under the influence of alcohol and tested positive for alcohol during a
mandatory alcohol test.
[30] The commissioner recorded that it was common cause that the Calibration
Certificate issued on 19 May 2022 was valid until 19 May 2023; that it was
undisputed that the Policy did not provide for a third test; that the Policy
adopted a zero-tolerance approach; and that the applicant had been trained
on the Policy.
[31] Applying the test set out in Item 7 of Schedule 8 of the Code of Good Practice
Dismissal, the commissioner held that there was no reason not to accept
Pabst’s version and that the applicant was not a credible witness. He found
that the rule was not disputed, was valid and reasonable, that the applicant
was aware of it, and that the Policy did not provide for a third test. He also
found that it was within Sylvania’s purview to set standards or rules of conduct
and to decide on sanctions for non- compliance. Therefore, the applicant was
guilty, and the dismissal was substantively fair.
[32] As regards procedural fairness, the commissioner recorded that it was
disputed. However, later in the award, he stated that the procedure was
undisputed and that the parties were bound by the pre- arbitration minutes, a
claim not supported by those minutes.
4 Be that as it may, t he issue is
academic, as the review application raises no issues regarding procedural
unfairness.
Grounds for review
[33] The founding affidavit raised three grounds of review. The applicant’s heads
of argument raised two grounds of review. The third ground, relating to
alleged misconduct by the commissioner in discussing and obtaining
matrimonial maintenance advice from Sylvania’s legal representative, was not
pursued in the applicant’s heads of argument. However, in oral argument, Mr
Geldenhuys pursued it, and Mr Makka responded to the submissions.
Accordingly, the matter is approached based on three grounds for review.
First ground
[34] The applicant submits that the commissioner committed gross irregularities.
4 The pre-arbitration minute reflects that both substance and procedure were placed in dispute.
[35] The first is that during the arbitration proceedings, the applicant moved an
application in terms of Rule 29 of the Rules for the Conduct of Proceedings
before the CCMA5 (CCMA Rules) to be provided with:
35.1 The sobriety evaluations performed on her,6 as provided in clause 5.4
of the Policy;
35.2 The quality assurance procedures and protocols used by Alcohol
Breathalysers in accordance with ISO quality control standards;7
35.3 The qualifications of Mr Ashley Wright (Wright), the Technical
Signatory8 of the Certificate of Calibration for the breathalyser tests
conducted on the applicant, and
35.4 The service logbook for the iBlow10 Breathalyser machine, as it is
required to be calibrated every 12 months or every 65 000 tests, and
the history of the machine's use and care.
[36] In response, Sylvania submitted that Alcohol Breathalyser’s (Pty) Ltd
(regarding the ISO quality standards), Mr Ashley Wright (Wright) (regarding
his qualifications), and the Samancor Occupational Medical Practitioner (the
only person authorised to conduct the sobriety evaluations) ought to have
been joined as interested parties but were not.
[37] On 11 July 2023, the commissioner issued a ruling requiring Sylvania to
disclose the requested documents by 28 July 2023. Sylvania failed to provide
the applicant with the documents as ordered. The arbitration proceedings
were scheduled to resume on 7 August 2023. On 4 August 2023, Sylvania’s
attorneys sent a letter to the applicant’s attorneys raising two issues. The first
was that Sylvania did not possess the documents sought and proposed that
the parties jointly approach the third parties in possession of them. The
second was that the expert notices were belated.
5 GNR.3318 of 21 April 2023.
6 Which includes observational assessments.
7 To determine whether the iBlow10 machine was calibrated in accordance with the standards.
8 Who must be qualified and authorized to sign the Certificate of Calibration.
[38] At the resumption of the hearing on 7 August 2023, Sylvania persisted with
the issues it had raised in its letter to the applicant’s attorney. It submitted that
it had failed to provide the applicant with the requested documents for the
same reasons it had given before the ruling was issued, viz that it was not in
possession of the documents. The applicant applied to have Sylvania held in
contempt for failing to comply with the ruling of 11 July 2023.
[39] Secondly, Sylvania also took issue with the applicant’s expert notice and
supplementary expert notice, served on 24 May 2023 and 28 July 2023,
respectively. Its objections to the expert notices were threefold. First, it
submitted that the pre-arbitration minute did not provide for the filing of expert
notices. Secondly, any expert notices ought to have been served before 13
April 2023, when the arbitration proceedings commenced, and could not be
filed halfway through the proceedings. Lastly, it submitted that it would be
prejudiced if the applicant called expert witnesses while its first witness was
already under cross-examination, and that it could not consult this first witness
about the expert notices.
[40] The arbitration proceedings were adjourned to allow the commissioner to
consider the issues.
[41] The applicant submits that , in a ruling dated 17 August 2023, the
commissioner held that Sylvania need not provide the requested documents
on the ground of non-joinder of interested parties.
9 The applicant contends
that the commissioner could not revisit the ruling of 11 July 2023 because the
disclosure of the documents was res judicata and the commissioner was
functus officio. The applicant further submits that Sylvania was required to file
an application to rescind or review the ruling, and it did neither. Therefore, the
commissioner committed a gross irregularity by revisiting his ruling of 11 July
2023.
[42] Regarding the expert notices, the commissioner ruled that the applicant could
2023.
[42] Regarding the expert notices, the commissioner ruled that the applicant could
not call an expert witness because the pre- arbitration minutes did not permit
it. The applicant submits that the ruling constitutes a gross irregularity, as the
9 As will be discussed later on, this is a misinterpretation of the ruling by the applicant.
pre-arbitration minutes do not preclude calling expert witnesses, as they
record that:
‘the Applicant does not intend to call any expert witness at this stage. Should
this position change, the Applicant will comply with the Rules relating to
Expert Witnesses.’
[43] The applicant also submits that her representative advised, on the first day of
the arbitration proceedings and during the cross- examination of Sylvania’s
first witness, that an expert witness would be called. Sylvania’s representative
did not object to the applicant calling an expert witness.
[44] The applicant also submits that Rule 37A 10 of the CCMA Rules, which
requires seven days' notice before calling an expert witness, was adopted to
prevent postponements by giving the other side an opportunity to consider its
position considering the expert notice. It was submitted that in this case the
expert notices were served in May and July 2023, respectively, well before the
arbitration set-down date of 7 August 2023, thereby giving Sylvania sufficient
time to consider its position. Reference was made to Thorne v Commission
for Conciliation Mediation and Arbitration and Others 11, in which the court
refused to review a ruling that postponed a matter to allow the other party to
consider an expert notice filed on short notice.
[45] It was further submitted that a notice to call an expert can be served at any
time, even when the arbitration proceedings are part -heard, provided it is
served at least 7 days before the next sitting.
[46] It was also submitted that the fact that Sylvania’s first witness was being
cross-examined did not prejudice Sylvania, as that witness was not an expert
and could not rebut the evidence of Dr Laurens, the expert the applicant
10 The rule provides as follows:
‘A party intending to call an expert witness shall give seven (7) days, prior to the hearing, notice thereof to
the Commission and the other party to the dispute together with a summary of the proposed evidence of
such witness, any document on which the witness will rely during evidence and the basis on which the
witness is regarded to be an expert to enable the other party to consider the summary and obviate the
need for any postponement.’
11 (C832/08) [2014] ZALCCT 59 (3 November 2014).
intended to call. The applicant submits that Dr Laurens would have given
evidence about the breathalyser test results.
[47] Issues were raised about the reliability of the applicant’s breathalyser test
results. It was submitted that, without the breathalyser machine’s logbook, it
was impossible to determine whether it had conducted 65 000 tests. The
Certificate of Calibration records that ‘accuracy will depend on factors such as
care exercised in handling the instrument and frequency’, yet Sylvania led no
evidence on how the machine had been handled or how frequently it was
used. The Certificate of Calibration also records that ‘It is a correct record of
the measurements made at the time of calibration’, yet the signatory, Wright,
was not called as a witness. It was also submitted that the South African
National Accreditation System requires the Technical Signatories of the
Certificate of Calibration to be metrologists or expert metrologists, and that, in
the absence of Wright’s qualifications, it was not possible to determine
whether he was qualified to sign the Certificate of Calibration, and that he was
not called to confirm his qualifications. Therefore, as the submission went, it
was irregular for the commissioner to accept the Certificate of Calibration as
conclusive proof that the applicant was under the influence of alcohol.
[48] The applicant relied on Samancor Chrome Ltd (Western Chrome Mines) v
Willemse and Others
12 (Samancor Chrome) , which held that breathalyser
tests are prone to false positive results, and takes issue with Sylvania’s failure
to adduce evidence that the person who conducted the test was trained, as
required by the Policy. It is also said that the person or persons who
conducted the tests were ‘unspecified’.
[49] The submission was further that since Pabst conceded that he was not a
technical expert, his evidence that the iBlow10 was a two- in-one machine
should not have been accepted.
Second ground or review
12 (2023) 44 ILJ 2013 (LC) at para 17.
[50] The applicant contends that Sylvania did not comply with the Policy, which
was part of her contract and states that:
‘everyone entering the site will be subjected to a breathalyser test (Alco -
scanner) at the access control points. The outcome of a positive
breathalyser test must be confirmed by means of another test by security
staff by using additional equipment (Alco-meter).
[51] The non-compliance was that Sylvania used the same machine for both tests,
whereas Policy requires a different machine for the second test. The
submission further is that it is absurd for the same machine used to conduct
the first test to validate its own results in a second test.
[52] Yet a further issue raised is that the machine measured the alcohol content in
mg/l, whereas Policy provides for alcohol percentages.
[53] The applicant also submits that the Policy distinguishes between ‘reporting for
work under the influence of alcohol ’ and ‘testing positive for alcohol’.
Sylvania’s witness clarified that the applicant was charged with being under
the influence of alcohol, and that the applicable stringent test was whether an
employee was capable of performing her work -related tasks, as held in
Transnet Freight Rail v Transnet Bargaining Council and Others
13, and Tosca
Labs v CCMA 14 (Tosca). It was submitted that , in this case, the applicant
entered the workplace and performed all her work without any reported
incidents, therefore, her competency to work was never impaired.
[54] The further submission was that the Policy requires the demeanour of the
person being tested to be recorded on the Alco test result, and that, in this
case, it was not recorded.
[55] The applicant also takes issue with the fact that, after the breathalyser test,
she was allowed to enter the site and was not immediately suspended with
pay, pending the outcome of the disciplinary hearing, as required by the
Policy.
13 [2011] 6 BLLR 594 (LC); (2011) 32 ILJ 1766 (LC) para 24
14 (2012) 33 ILJ 1738 (LC) at para 11.
[56] Taking all of the above into account, it is submitted that the commissioner
committed gross misconduct by accepting Sylvania’s version and finding the
applicant’s dismissal substantively fair.
Third ground of review
[57] The third ground of review is that the commissioner committed misconduct by
obtaining legal advice on matrimonial maintenance from Sylvania’s legal
representative, a conversation said to have taken place in the absence of the
applicant and her representative.
Sylvania’s contentions
[58] Sylvania contends that the commissioner was correct not to hold Samancor in
contempt for failing to disclose documents not in its possession. A related
submission is that, despite lacking the documents, the applicant, who was
legally represented, chose to continue the arbitration proceedings without
them rather than accept Sylvania’s offer to jointly approach the custodians of
those documents.
[59] As regards the applicant’s expert witness, Sylvania submits that the
commissioner acted reasonably in disallowing the expert notices, as the
applicant sought to recalibrate her case after hearing Sylvania’s first witness,
thereby materially prejudicing Sylvania’s case. Sylvania further submits that
the expert notices addressed Pabst’s evidence and could not be consulted, as
he was under cross-examination.
[60] It was also submitted that the applicant had not given seven days' notice
before the commencement of the arbitration proceedings, as required by
CCMA Rule 37A. To support its contention, Sylvania submitted that the rule is
not, and cannot be, premised on the assumption that there will be a
postponement. The second point is that, as one of the LRA's objectives is the
speedy resolution of disputes, the rule must be interpreted to require that the
notice be given before the commencement of the arbitration proc eedings, as
allowing the notice to be served halfway through the arbitration proceedings
would defeat this objective. The third point is that allowing a party to serve the
notice at any time could mean the notice is served after a party has closed its
case, and postponing the matter to allow a party to reopen its case would
defeat the objective of the speedy resolution of labour disputes. The fourth
point is that if the expert notice is accepted halfway through the proceedings,
Sylvania could not simply decide to call its own expert, ignoring the fact that
its witness had already been under cross -examination after having testified,
as this would lead to the postponement of the matter, which runs counter to
the objective of Rule 37A.
[61] Sylvania submits that the decision in Thorne, relied upon by the applicant, is
distinguishable because there was no objection to non- compliance with the
seven-day notice period, and the affected party simply requested a
postponement of the matter.
[62] Regarding the finding that the applicant’s dismissal was substantively fair,
Sylvania submitted that the applicant was charged with reporting to work
under the influence and with testing positive on a mandatory alcohol test at
the entrance gate, with readings of 0.11% BAC (first test) and 0.06% (second
test). Therefore, the applicant was charged under the zero- tolerance policy,
which requires that an employee not have a reading above 0.00%, and that
the applicant was aware of the Policy.
[63] Sylvania relies on several case authorities addressing an employer’s zero -
tolerance approach.
[64] First is the decision in Xstrata Coal South Africa v CCMA
15 (Xstrata), where
the court held that the commissioner misconceived the issue he was tasked to
determine by confusing the charge of being under the influence of alcohol with
the charge of being unable to perform duties , when the issue was that the
employer had a zero tolerance policy regarding alcohol.
[65] Reliance was also placed on Sasol Mining (Pty) Ltd v CCMA and others 16
(Sasol Mining), which held that employee safety in the workplace is
15 (JR 90/2012) [2014] ZALCJHB 14 (7 February 2014).
15 (JR 90/2012) [2014] ZALCJHB 14 (7 February 2014).
16 [2015] 36 ILJ 2359 (LC) at para 6.
paramount and that an employer need not wait for a disaster before taking
action against an employee who exposes fellow employees to danger.
[66] The third dec ision relied upon is Shoprite Checkers v Tokiso Dispute
Settlement17 (Shoprite Checkers), which held that a commissioner will accept
zero tolerance where the circumstances of the case warrant the employer
adopting such an approach. In this case, the applicant did not challenge the
reasonableness of the zero-tolerance policy, and safety in the mining industry
is important, as recognised in the Mine Health and Safety Act.18
[67] Yet another decision relied upon is KWS Carries v National Council for the
Road Freight and Logistics Industry and Others 19 (KWS Carries), in which the
court held that the zero-tolerance alcohol policy was reasonable for safety
reasons and that the dismissal of an employee was for a fair reason.
[68] The last decision referred to is Air Products South Africa (Pty) Ltd v Matee
and others
20 (Air Products), which held that a commissioner committed an
error and misconstrued the enquiry by inquiring whether an employee was
capable of performing his duties, when the issue was whether the employer’s
circumstances necessitated the adoption of the zero-tolerance policy.
[69] Sylvania submits that the applicant incorrectly relied on the decisions in Tosca
and Tanker Services (Pty) Ltd v Magudulela
21, because the applicant was not
charged with being unable to perform her duties due to alcohol.
[70] Further submissions were that the iBlow10 machine used to test the applicant
was used to test other employees before and after the applicant’s tests, and
that all tested negative except the applicant. Therefore, Sylvania submits that
the machine was functioning properly on the morning of 7 October 2022, and
17 [2015] 9 BLLR 887 (LAC) at para 17.
18 Act 29 of 1996, as amended.
19 (JR1261/16) [2019] ZALCJHB 295 (17 October 2019) at para 14.
20 [2021] JOL 53666 (LC) at para 31 and 39-41.
20 [2021] JOL 53666 (LC) at para 31 and 39-41.
21 [1997] 12 BLLR 1552 (LAC).
that Samancor Chrome does not assist the applicant’s case. It was also
submitted that Samancor Chrome is distinguishable.
[71] The iBlow10 is a modern, dual two-in-one machine. It checks for alcohol (Alco
scanner), and if none is detected, a green light switches on. However, if
alcohol is detected, a red light comes on, and a further test is conducted to
obtain a reading (Alco meter). Therefore, according to Sylvania, an additional
test on separate equipment is unnecessary.
[72] The applicant consumed alcohol the night before, and between the time the
Alco scanner test was conducted and the time the Alco meter test reading
was obtained, the applicant had been drinking water, which explains the
reduction in the reading from 0.11% to 0.06%.
[73] The security officer who conducted the test was, according to Pabst’s
evidence, trained, and there was no dispute about the security officer's
training. The issue of the security officer’s training was raised for the first time
in the heads of argument, not in the founding or supplementary affidavits.
[74] As regards the third ground of review, namely that the commissioner sought
legal advice, it was submitted that this ground was highly mischievous, as Mr
Geldenhuys was not even present, and that there is no allegation that the
applicant’s representative at the time was also present. The submission is that
there was a casual discussion about maintenance in the applicant's presence,
and that if she felt the commissioner was biased, she could have applied for
the commissioner to recuse himself.
[75] Ultimately, it was submitted that the award is reasonable and should stand.
Legal principles
[76] Slyvania’s heads of argument addressed the test in review applications such
as the present and cited the relevant case authorities. The court agrees that
those are the relevant authorities.
[77] Sidumo and another v Rustenburg Platinum Mines Ltd and others 22 (Sidumo),
held that the question or test is whether the decision reached by the
commissioner is one that no reasonable decision maker could reach. If the
question is answered in the affirmative, the award cannot stand and must be
set aside.
[78] In determining whether an award meets the reasonableness test, the court is
not confined to the reasons given by the commissioner for the decision. The
court can also consider other reasons that render the award reasonable or
unreasonable, even if the commissioner did not refer to them.
23
[79] In Herholdt v Nedbank Ltd and another 24, the court held that an award is
reviewable if a defect in the proceedings fall s within one of the grounds in
section 145(2)(a)25 of the LRA. One of those grounds is gross irregularity, and
in Herholdt26, the court clarified that gross irregularity occurs where a
commissioner misco nceives the nature of the inquiry or reaches an
unreasonable result.
[80] In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others27, the court further clarified that gross irregularity is not a stand -alone
ground and that the correct approach is to consider the alleged gross
irregularity committed by the commissioner and then determine whether the
outcome is reasonable.
22 [2007] 28 ILJ 2405 (CC).
23 See Fidelity Cash Management Service v CCMA and others (2008) 29 ILJ 964 (LAC) at para 97
and Head of the Department of Education v Mofokeng & others [2015] 1 BLLR 50 (LAC) at para 31.
24 2013 (6) SA 224 (SCA).
25 Which provides as follows:
(2) A defect referred to in subsection (1), means-
(a) that the commissioner-
(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded the commissioner's powers; or
26 Ibid para 25. See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others [2014] 1 BLLR 20 (LAC) at para 14.
27 [2014] 1 BLLR 20 (LAC) at para 15 and 16.
[81] In Head of the Department of Education v Mofokeng & others 28, the court
stated the following regarding, inter alia, irregularities:
‘[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 enquiry. 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 on the arbitrator’s conception of the
enquiry, the determination 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. The 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, and irregularity or error material to
the determination of the dispute may constitute a misconception of the
nature of the inquiry 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.’
[82] In CUSA v Tao Ying Metal Industries and others 29, the court held that
[82] In CUSA v Tao Ying Metal Industries and others 29, the court held that
commissioners are obliged to apply their minds to the issues in a case, failing
which they will be acting unlawfully and/or unreasonably, and their decisions
will constitute a breach of the right to administrative justice.
Evaluation
28 [2015] 1 BLLR 50 (LAC).
29 (2008) 29 ILJ 2461 (CC) at para 34.
Did the commissioner revisit the 11 July 2023 ruling?
[83] The applicant contends that, in his 17 August 2023 ruling, the commissioner
revisited his 11 July 2023 ruling, which ordered Sylvania to produce the
documents the applicant had requested.
[84] On 7 August 2023, the issue before the commissioner was whether to hold
Sylvania in contempt for failing to produce the requested documents. A failure
to comply with a ruling, on its own, does not suffice to obtain an order that a
party is in contempt. The application could succeed only if Sylvania, as the
contemnor, failed to prove the absence of wilfulness and mala fides. In this
case, Sylvania persisted in contending that it did not possess the documents it
was ordered to discover. Therefore, it demonstrated that non- compliance with
the ruling was not wilful, and thus it could not be held in contempt of the
proceedings. Accordingly, the ruling finding that Sylvania was not in contempt
of the proceedings was correct in law, and the only issue the commissioner
was required to determine was not whether Sylvania was required to discover
the documents.
[85] The applicant contends that she was prejudiced by being required to proceed
with the arbitration without the documents she needed. The submission is
unpersuasive, as the applicant had options. The first and obvious option was
to agree to Sylvania’s proposal that the parties jointly approach the third
parties in possession of the documents and request them . It is unclear why
the applicant did not accept Sylvania's proposal. The applicant could also
subpoena the documents she required, but opted not to do so.
[86] Therefore, there is no merit to the ground of review.
The refusal to allow the applicant to call an expert witness
[87] The commissioner ruled that the expert notices would be ‘disallowed’ because
the pre-trial minute does not mention them. This is incorrect.
[88] The pre- arbitration minutes record that, at the time of signing, the applicant
[88] The pre- arbitration minutes record that, at the time of signing, the applicant
did not intend to call any expert witnesses. They also state that, should this
position change, the applicant will comply with the rules governing expert
witnesses. The contents of the pre- arbitration minutes were read into the
record at the commencement of the proceedings, and it is unclear what the
commissioner had regard to in finding that they did not permit the applicant to
serve expert notices. The only condition was that, should the applicant resolve
to serve expert notices, she was required to comply with the rules relating to
expert witnesses. CCMA Rule provides as follows:
‘A party intending to call an expert witness shall give seven (7) days, prior to
the hearing, notice thereof to the Commission and the other party to the
dispute together with a summary of the proposed evidence of such witness,
any document on which the witness will rely during evidence and the basis
on which the witness is regarded to be an expert to enable the other party to
consider the summary and obviate the need for any postponement.’
[89] The arbitration proceedings commenced on 13 April 2023 and adjourned
during Pabst’s cross-examination. On 24 May 2023, the applicant served the
expert notice. The matter, scheduled to continue on 6 June 2023, was
postponed because Sylvania’s legal representative fell ill. The next hearing
was set for 7 August 2023. In the meantime, on 28 July 2023, the applicant
served the supplementary notice. Accordingly, both the expert notice and the
supplementary expert notices were served seven days before the 7 August
2023 hearing.
[90] Sylvania’s contention that CCMA Rule 37A requires the expert notice to be
served before the commencement of the arbitration is an attempt to rewrite
the rule and is rejected. An expert notice is required only if the need arises,
and it is not unusual for this to occur during the arbitration proceedings. In
fact, insufficient notice of the expert notice is not a ground for disallowing it.
Instead, the proper course of action is to postpone the matter.
Instead, the proper course of action is to postpone the matter.
[91] The contention that the expert notices were served after hearing Pabst’s
evidence and that this prejudiced Sylvania has no merit. As Sylvania bore the
onus of proving that the applicant’s dismissal was fair, there was nothing
unfair about the applicant hearing Sylvania’s case against her first and then
deciding to call an expert witness to challenge that evidence.
[92] Similarly, the fact that Pabst was under cross-examination did not prejudice
Sylvania, contrary to Sylvania’s submission. On Pabst’s own version, he was
not an expert i n breathalyser tests , and would not have been able to counter
the evidence of Dr Laurens . The applicant’s expert notices were served
before Sylvania closed its case, and Sylvania would have been at liberty to
call its own expert witness to counter the contents of Dr Laurens' expert report
if it felt Dr Laurens’ contentions needed to be contested.
[93] Additionally, at the commencement of the proceedings, Sylvania’s legal
representative informed the hearing that the number of witnesses would
depend on how the cross -examination went. Therefore, Sylvania was aware
that it could elect to call additional witnesses depending on how Pabst fared
during his cross-examination.
[94] The issue of expert witnesses also arose during Pabst's cross -examination.
The applicant’s representative indicated that, if the need arose to call an
expert witness, the rules would be complied with. Sylvania’s legal
representative indicated that they would have to wait until the expert witness
was called. Its stance on 7 August 2023, which marked a complete change of
approach, was disingenuous, and the commissioner ought to have rejected it.
[95] It is also worth noting that after Pabst finished his evidence, Sylvania’s legal
representative sought clarification on the issues the applicant had with the
Calibration Certificate, so that, if necessary, Sylvania could bring a Rule 37A
application. Hence, Sylvania knew that a Rule 37A application could be
brought midway through arbitration proceedings.
[96] It follows that the commissioner misconceived the nature of the inquiry by
disallowing the applicant’s expert notices on the basis he gave. The
commissioner’s decision also denied the applicant the opportunity to
challenge the breathalyser test results, which were her primary defence to the
challenge the breathalyser test results, which were her primary defence to the
claim of misconduct. Thus, she was denied a fair trial. Accordingly, the ruling
of 17 August 2023 will be reviewed and set aside to the extent that it
disallowed the applicant’s expert notices.
[97] The award of 23 October 2023 also falls to be set aside because the applicant
was denied a fair trial.
[98] Pabst was unable to explain the Certificate of Calibration, which recorded that
‘the iBlow10 breathalyser has been calibrated to 0.05 milligram per litre at
0.24 accuracy’, or to explain why the Calibration Certificate started with a
reading of 0.18 and ended with a reading of 0.26. Only an expert witness,
whether called by the applicant or by Sylvania, could provide clarity on the
issue.
[99] The commissioner’s decision to prevent the applicant from calling an expert
witness in her defence was a gross irregularity that distorted the outcome,
rendering the ruling and the award reviewable.
[100] Accordingly, the matter will be remitted to the CCMA for a fresh hearing
before a different commissioner to properly ventilate the dispute between the
parties.
Alleged misconduct in relation to the discussion about matrimonial maintenance
[101] This ground of review was raised in the founding affidavit, and Sylvania
addressed it in its answering affidavit, conceding that the discussion about
matrimonial maintenance took place but strenuously disputing that the
commissioner was seeking legal advice. It is also pleaded that the applicant
and her representative were informed of the subject of the discussion and that
the discussion continued in their presence. In oral argument, it was also
submitted that the applicant could have applied for the commis sioner’s
recusal. According to Sylvania, the ground of review was highly opportunistic,
misplaced, mischievous, an afterthought, disingenuous, unfair to Sylvania,
amounted to clutching at straws, and constituted an abuse of the review
process.
[102] That a conversation about matrimonial maintenance took place is not
disputed. It is also undisputed that the conversation commenced in the
absence of the applicant and her representative, but it is alleged that it
continued even after they re- entered the room. The commissioner was best
placed to address the allegation, yet for inexplicable reasons , he chose not to
put a version before the court. If the conversation indeed amounted to legal
advice to the commissioner by Sylvania’s legal representative, it is
understandable that the applicant bore a reasonable apprehension of bias,
namely that the commissioner would not be impartial.
[103] The fact that she did not apply for the commissioner to recuse himself does
not prevent the applicant from raising the ground of review that the
commissioner committed misconduct, as she has done. Section 145 of the
LRA expressly provides that misconduct by a commissioner is a ground for
review.
[104] Additionally, refusing, on review, to consider a bias claim against a
commissioner would encourage litigants before the CCMA to lodge recusal
applications, even if without merit, and would delay the resolution of disputes
through the arbitration process. This would contradict one of the LRA's
objectives, namely the swift resolution of disputes.
[105] In Satani v Department of Education, Western Cape & Others
30, (Satani), the
court stated the following regarding failure to apply for the commisioner’s
recusal:
‘[35] The Labour Court held that appellant’s attorney neither objected to the
style with which the arbitrator conducted the arbitration nor did he ask
for her recusal. Failure to object by a party or its legal representative
cannot render an unfair process or conduct fair or acceptable. The test
for reasonable apprehension of bias is not premised on whether the
representative objected to the process or not. It is an objective test
which is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the commissioner has
not brought an impartial mind to bear in the adjudication of the
dispute…’
[106] Also, in Bernert v ABSA Bank Limited 31, the court stated that whether a
litigant should be allowed to raise the issue of recusal at a later stage, despite
litigant should be allowed to raise the issue of recusal at a later stage, despite
30 (2016) 37 ILJ 2298 (LAC).
an earlier opportunity to do so, implicates the interests of justice, and not
waiver.32 Therefore, the applicant did not waive the right to raise the issue of
perceived bias by the commissioner and was well within her rights to do so in
these proceedings.
[107] The court intends to remit the matter to the CCMA for a fresh hearing before a
different commissioner, and therefore it is unnecessary to make a firm finding
on this ground for review, save to state that it was not ‘ highly opportunistic,
misplaced, mischievous, an afterthought, disingenuous, unfair to Sylvania,
amounted to clutching at straws, and constituted an abuse of the review
process’ as submitted by Sylvania.
Costs
[108] The parties sought costs against each other, contending that the review
application or the opposition was frivolous. The applicant was successful, and
Sylvania’s opposition to the review application was not frivolous. A costs order
in accordance with the requirements of law and fairness is that each party pay
its own costs.
[109] In the premise, I make the following order:
Order
1. The ruling dated 17 August 2023, issued under the auspices of the
Commission for Conciliation, Mediation and Arbitration in case number
NWRB4011-22, is hereby reviewed and set aside, but only to the extent
that the applicant’s expert notices were disallowed.
2. The arbitration award dated 23 October 2023, issued under the
auspices of the Commission for Conciliation, Mediation and Arbitration
in the same case number, is hereby reviewed and set aside.
3. The matter is remitted to the Commission for Conciliation, Mediation
and Arbitration for a fresh hearing before a different commissioner.
31 2011 (3) SA 92 (CC) para 71 and 75.
32 Bernert at paras 74 and 75.
4. There is no order as to costs.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Mr CJ Geldenhuys
Instructed by: CJ Geldenhuys Attorneys
For the Respondent: A Makka
Instructed by: Cliffe Dekker Hofmeyr Inc