Steenkamp J’s judgment on 6 June 2012 in Taxi-Trucks Parcel Express (Pty) Ltd v NBCRFI [2012] 12 BLLR 1301 ; (2012) ILJ 2985 (LC) dealing with a dismissal related to conduct (coming to work supposedly under the influence of alcohol) refers to the SAB case.

Thanks to SAFLII for making the judgment freely available and here are some extracts from that judgment and for ease of reference including links to the cases and with footnotes incorporated into the text.

“Introduction

[1] The employee, Mr Thaditola Caluza, went to work whilst still under the influence of alcohol on Monday 3 August 2009. He had had a lot to drink the night before at a traditional function. It is common cause that he did not drink any alcohol on duty or at the workplace; but the effects of the previous day’s festivities were such that, when he underwent a breathalyser test, his blood alcohol level was found to be three times over the legal driving limit.

[2] The employee was not a driver. The applicant is an express parcel delivery company. The employee was employed as a general worker. On the Monday in question, he was loading tyres onto trucks.

[3] He was dismissed for being under the influence of alcohol at work. At arbitration, the arbitrator found that dismissal was too harsh a sanction. He ordered the applicant to reinstate the employee, but limited the amount of back pay. This had the effect that the employee had effectively been suspended without pay for four months.

[4] The applicant wishes to have that award reviewed and set aside”.

“Legal principles

[19] The application for review – as opposed to appeal – must be considered against the background of the applicable legal principles. In this regard, I propose to deal mainly with the “fairness test” as outlined in Sidumo and subsequent authorities; and with the specific authorities relating to alcohol-related misconduct.”

“The fairness test

[20] The arbitrator in South African Breweries v CCMA & others [2012] ZALCCT 17] also found that a sanction of dismissal in an alcohol-related misconduct matter where the employer had a “zero tolerance” policy was unfair. He ordered the employer to reinstate the employee prospectively, coupled with a final written warning. The effect of the award was that the employee was suspended without pay for some four and a half months.

[21] In holding that the arbitrator’s award was not unreasonable, this court attempted to make sense of the fairness inquiry. That discussion is apposite to this case.

[22] In this regard, the following dictum of Navsa AJ in Sidumo (Sidumo & another v Rustenburg Platinum Mines & others (2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC) para [79]) is often cited:

“In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”

[23] But this paragraph must be read in the context of Navsa J’s earlier discussion: (ibid para [75])

“It is a practical reality that, in the first place, it is the employer who hires and fires. The act of dismissal forms the jurisdictional basis for a commissioner, in the event of an unresolved dismissal dispute, to conduct an arbitration in terms of the LRA. The commissioner determines whether the dismissal is fair. There are, therefore, no competing ‘discretions’. Employer and commissioner each play a different part. The CCMA correctly submitted that the decision to dismiss belongs to the employer but the determination of its fairness does not. Ultimately, the commissioner’s sense of fairness is what must prevail and not the employer’s view. An impartial third party determination on whether or not a dismissal was fair is likely to promote labour peace.”

[24] The Labour Appeal Court very recently discussed the Sidumo test in Wasteman Group v SAMWU & Others [2012] 8 BLLR 778 ; (2012) 33 ILJ 2054 (LAC). Davis JA confirmed that:

“The commissioner is required to come to an independent decision as to whether the employer’s decision was fair in the circumstances, these circumstances being established by the factual matrix confronting the commissioner.”

[25] In my view, as discussed in South African Breweries supra (para [26]) the commissioner’s view can best be summarised thus:

The employer decides to dismiss. The commissioner conducts an arbitration de novo. In the light of the totality of circumstances, established by the evidence at arbitration, the commissioner must then decide whether the decision to dismiss was fair. In doing so, it is the commissioner’s own sense of fairness that must prevail. There can be no deference to the employer.

[26] In the course of his argument, Mr Ackermann referred me to the judgment of the Labour Appeal Court in Samancor Chrome Ltd (Tubatse Ferrochrome) v MEIBC & others [2010] 8 BLLR 824 (LAC). But that judgment was overturned on appeal by the Supreme Court of Appeal [NUM & others v Samancor Chrome Ltd (Tubatse Ferrochrome)[2011] 11 BLLR 1041 (SCA); (2011) 32 ILJ 1618 (SCA)]. And this court needs to bear in mind the following word of caution sounded by Nugent JA on appeal: (Ibid para [7])

“It is apparent from the reasons given by the Labour Appeal Court that it did not appreciate the limited nature of the question that had been before the Labour Court – and hence the limited question that was before it on appeal. Nowhere in its reasons is there any express finding that the award was one that no reasonable decision-maker could make nor does it appear by implication. The most that can be said is that it found that the arbitrator erroneously categorised the dismissal – a matter to which I will return – but error is not by itself a proper basis for reconsidering an award. Having found that there was an error the Labour Appeal Court said that ‘manifestly, the question as to whether a dismissal in the circumstances of the present dispute, is substantively fair depends upon the facts of the case’ and proceeded to consider the facts, reaching the following conclusion:

‘In the circumstances of this case and for the reasons so set out, [Mr Stemmett] should have considered that the decision to terminate [Mr Maloma’s] employment was fair and manifestly fair’.

That approach to the matter would have been appropriate if the arbitrator’s award had been under appeal but not where it was being subjected to review.”

Dealing with alcohol-related offences

[27] In support of his argument that being intoxicated on duty should be met with a sanction of dismissal rather than a less drastic one, Mr Ackermann referred to the recent judgment in Transnet Freight Rail v Transnet Bargaining Council & others [2011] ZALC JHB 15 [GSG’s note: reported at [2011] 6 BLLR 594 (LC)]. But that matter concerned the question whether alcohol abuse should be treated as misconduct rather than incapacity in circumstances where the employee is not an alcoholic. The main ratio for holding that the arbitrator’s award was reviewable in that case, was that the arbitrator failed to have regard for the principles distinguishing misconduct from incapacity and, more specifically, that the evidence and common cause facts were that the employee in that case was not an alcoholic and did not suffer from alcoholism.

The arbitrator committed a gross irregularity in extending the requirement to treat alcoholism as a disease (i.e. an incapacity) to employees who are not alcoholics and who do not suffer from alcoholism (or any other medical illness) simply by virtue of the fact that their misconduct involved alcohol. In the case before me, the misconduct was treated as such and the only significant question on review is whether the arbitrator’s ruling on sanction is sustainable.

[28] There are other reasons why the Transnet case is distinguishable.

  • Firstly, the employee in that case was employed in a safety critical position which necessitated the strict application of the rule against being intoxicated at work.
  • Secondly, a serious written warning had been issued to the employee for a similar offence and that was still valid.

Neither of those factors applies to the employee in this case, although safety considerations did play a role – a significant one, Mr Ackermann argued. However, I do not think the safety aspect in the case of a general worker loading goods can be equated to that of a train driver, as was the case in Transnet.

[29] Some principles relating to alcohol-related misconduct were nevertheless discussed in Transnet and I shall consider those principles in the context of this case.

[30] Grogan [Workplace Law p 224], in discussing the case of Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC) in which it was found that the employee, who was found to have been under the influence of alcohol, committed an offence justifying dismissal, notes the following:

“…[I]n Tanker Services (Pty) Ltd v Magudulela the employee was dismissed for being under the influence of alcohol while driving a 32-ton articulated vehicle belonging to the employer. The court held that an employee is ‘under the influence of alcohol’ if he is unable to perform the tasks entrusted to him with the skill expected of a sober person. The evidence required to prove that a person has infringed a rule relating to consumption of alcohol or drugs depends on the offence with which the employee is charged. If employees are charged with being ‘under the influence’, evidence must be led to prove that their faculties were impaired to the extent that they were incapable of working properly. This may be done by administering blood or breathalyser tests…

Whether employees are unable to perform their work depends to some extent on its nature. In Tanker Services, the question was whether Mr Magudelela’s faculties had been impaired to the extent that he could no longer perform the ‘skilled, technically complex and highly responsible task of driving an extraordinarily heavy vehicle carrying a hazardous substance’. Having found that he could not safely do so in his condition, the court concluded that Magudelela’s amounted to an offence sufficiently serious to warrant dismissal.”

[31] In the case before me, the employee was not performing ‘skilled, technically complex and highly responsible tasks’. He was loading tyres onto trucks. Evidence was led that forklifts were being driven around in the same area and that he could inadvertently have stepped in front of one.

Even if this were to be accepted, I do not think the situation can be equated to the example cited by Grogan or to that in Transnet. The same holds true for the factual matrix in Exactics-Pet (Pty) Ltd v Patelia NO [2006] 6 BLLR 551; (2006) 27 ILJ 1126 (LC) where the employee was a crane driver.

[32] The arbitrator in this case appreciated this distinction and pointed out that a “zero tolerance approach” could not be applied without more to a clerk in the same way as a driver or a pilot.”