Air Products South Africa (Pty) Ltd v Matee and Others (JR763/18) [2021] ZALCJHB 332 (30 September 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JR 763/18

In the matter between:

AIR PRODUCTS SOUTH AFRICA (PTY) LTD Applicant

and

NEO ARCHIBALD MATEE First

Respondent

THE NATIONAL BARGAINING COUNCIL

FOR THE CHEMICAL INDUSTRY Second

Respondent

COMMISSIONER THEMBA MICHAEL CEDE Third

Respondent

Heard: 03 November 2020

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 30 September 2021.

MAHOSI J

Introduction

[1] This is an application brought in terms of section 145 of the Labour Relations Act[1] (‘the Act’) to review and set aside the arbitration award dated 18 March 2018, which was issued by the third respondent (‘the arbitrator’) under the auspices of the first respondent, the National Bargaining Council for the Chemical Industry (‘the bargaining council’) under case number FSCHEM40-17/18. The application is opposed by the first respondent.

[2] Before this Court is also a condonation application for the late fling of the answering affidavit. Having regard to the pleadings and the record filed, I am of the view that this matter deserves a full determination. Therefore, the condonation application is granted.

[3] The remaining key question is whether the arbitrator’s finding that the first respondent’s dismissal was substantively unfair is one that a reasonable decision-maker could reach.

Background

[4] The first respondent commenced employment with the applicant on 01 November 2012. The applicant is in the business of manufacturing and distributing substances including, inter alia, oxygen, nitrogen, hydrogen and carbon dioxide. The gasses are manufactured and stored in highly pressurised storage unit at the applicant’s facilities. One such facility located in Vanderbjlpark, was the facility at which the first respondent was employed.

[5] Due to the possibility of workplace accidents, which would be perilous for the environment, the employees, contractors and the surrounding community, the applicant adopted strict safety protocols, policies and procedures that include zero tolerance approach to alcohol and drug abuse on its premises.

[6] On 21 August 2017, the first respondent tested positive for alcohol at the applicant’s facility access gate at 06h50 after he was subjected to an breathalyser test. The result was later confirmed after the second breathalyser test was conducted approximately 20 minutes later. On the same day, the first respondent signed a consent form allowing a health practitioner to conduct a blood test at a laboratory. Accordingly, the blood test was conducted by Path Care Laboratory and the results indicated that the level of alcohol in the first respondent blood was 0,03g/dl.

[7] The first respondent was then suspended on 22 August 2017. The following day, on 23 August 2017, the first respondent was issued with a notice to attend a disciplinary hearing. During the disciplinary hearing, the first respondent pleaded guilty to the charge after which the chairperson recommended a sanction of dismissal. Accordingly, the first respondent was dismissed on 11 September 2017.

[8] Aggrieved by the applicant’s decision to dismiss him, the first respondent referred an unfair dismissal dispute to the bargaining council for conciliation. At conciliation, the matter remained unresolved and the certificate of outcome was issued. The first respondent then referred the dispute for arbitration which was held on 17 March 2018.

The arbitration

[9] The first respondent only challenged the substantive fairness of his dismissal as it was common cause that the procedural fairness of the dismissal was not in issue.

[10] On the one hand, the applicant led its evidence through its supply chain manager, Mr Hein Van Tonder who testified on the existence and lawfulness of the zero-tolerance policy regarding on alcohol.

[11] According to Mr Van Tonder, the applicant’s policy allows an employee to take a voluntary test if he or she had a reason to believe that he could be under the influence of alcohol. Should he/she test positive, such an employee would be allowed to return home and thereafter charged with absenteeism. However, should an employee choose not to take a voluntary test, he/she would be allowed to enter the applicant’s premises where he/she might be subjected to a test by a security guard.

[12] In a case where an employee tests positive, he/she is allowed 20 minutes after which he/she is tested again. Should an employee test positive for the second time, he/she is sent to an approved medical facility where a blood sample is drawn for test. This is done subject to an employee’s consent.

[13] It was Mr Van Tonder’s further testimony that the first respondent was aware of the applicant’s policy regarding alcohol at the workplace as he subjected himself to a voluntary test for alcohol on 23 May 2016. It was on this day when he tested positive, was sent back home and returned to work the following day. On 24 May 2016, the first respondent denied that he had an alcohol problem which required assistance.

[14] Mr Van Tonder further testified that the first respondent was required to hand over dangerous vehicles to the drivers and as such he needed to make a value judgment whether the drivers standing before him were fit to drive such vehicles.

[15] On the other hand, the first respondent’s case was mainly that the sanction of dismissal was harsh, as he did not consume alcohol at the workplace but that he had consumed it the previous day at home.

[16] Having analysed the evidence, the arbitrator found that the first respondent’s dismissal was substantively unfair. It is this award that is the subject of this application.

Applicable law and analysis

[17] Review applications are regulated by section 145 of the Act, which provides that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award. Section 145(2) provides that:

‘(2) a defected referred to in (1), means-

(a) that the commissioner-

(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;

(ii) committed gross irregularities in the conduct of the arbitration proceedings; or

(iii) exceeded the commissioner's powers; or

(b) that an award has been improperly obtained.’

[18] The test for review which has been authoritatively stated in Sidumo and Another v Rusternburg Platinum Mines Ltd and Others[2] was reiterated in Herholdt v Nedbank Ltd and Congress of South African Trade Unions[3] as follows:

‘In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the

proceedings falls in one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings amount to a amount to gross irregularity is contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that is 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 fact, 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 and unreasonable.’[4]

[19] The test is, therefore, whether the decision reached by the Commissioner is one that a reasonable decision-maker could reach.

[20] In the current matter, the applicant challenged the award on four grounds. The first and second grounds are intertwined. The first ground was that the arbitrator committed a material error of law in that he placed much emphasis on the fact that zero tolerance should not lead to termination of employee’s service where it has not been established that the employee was unable to execute his duties.

[21] The second ground was that the arbitrator misconstrued the nature of the enquiry as he delved into whether the first respondent was capable of performing his duties or not instead of enquiring whether the first respondent transgressed the well-known and consistently applied zero-tolerance rule towards alcohol. The third ground was that the arbitrator failed to assess the credibility of the parties and the fourth and last ground was that the arbitrator failed to consider all the relevant information.

[22] The basis on which the arbitrator found that the first respondent’s dismissal was unfair appears, inter alia, on the following paragraphs of the award:

‘28. The respondent’s only witness, Hein Van Tonder, testified that the applicant took a breathalyser test and he was found to be under the influence of alcohol. He was aware of the policy which was zero tolerance.

29. It was crucial to note that Van Tonder stated that the respondent did not consider whether the employee was fit to work when he was under the influence of alcohol because of the industry they operate under.

30. Strangely Van Tonder despite saying that the respondent did consider whether an employee was fit, he said that as part of the applicant’s duty he was required to hand over the dangerous vehicle to the drivers. He needed to make a value judgment whether the driver standing before him was fit to drive the vehicle.

31. This clearly indicated an inconsistent understanding of the application of the respondent’s rule of under the influence and zero tolerance. This therefore borders on contradiction on the part of Van Tonder.

32. However, to prove to be under the influence of alcohol it must be shown that there was an impairment of the employee’s faculties. Where the breathalyser test shows a low margin of alcohol content in the blood such as it was the case with the applicant, the respondent is required to substantiate the intoxication with corroboratory evidence such as a manner of speech, bloodshot eyes and unsteadiness, etc.’

[23] It is apparent from the award that the arbitrator arrived at his conclusion on the basis that the applicant could not prove that the first respondent’s faculties were impaired to the extent that he was unable to perform his task and that the first respondent committed a misconduct which warranted dismissal. According to the applicant, the arbitrator adopted a facile approach to case law by ignoring the fact that this matter dealt with zero-tolerance policy which defines being “under the influence” as the blood levels of alcohol “above the limit” as a blood alcohol level above 0.00%.

[24] It was the applicant’s case that the zero-tolerance policy was adopted in the dangerous working environment. The applicant makes the point that its case was that the first respondent transgressed its zero-tolerance policy which prohibited alcohol from being present in the employee’s blood stream in its entirety and not that the first respondent was too intoxicated to perform his duties.

[25] The first respondent defended the award and submitted that the applicant failed to establish the basis on which the Court should interfere with the award.

[26] Both parties referred the Court to the judgment in Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and others[5]. Although, this case relates to the rule regarding declaration of personal goods, it is relevant to the current case as it outlines the 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 it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin. See the incisive contribution by André van Niekerk (Juta 2012) 102-119. Commissioners should be vigilant and examine the circumstances of each case to ensure that the constitutional right to fair labour practices, more particularly to a dismissal that is fair, is afforded to employees.

…

[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.

[27] It is clear from the above authority that the zero-tolerance policy will be accepted only where the circumstances necessitate its adoption by the employer. Thus, when pursuing a zero-tolerance policy, the employer has a duty to show that dismissal is appropriate and proportional to the offence.

[28] In the current matter, the first respondent was found to be under the influence of alcohol which offence was, according to the applicant’s zero-tolerance policy, dismissible. It was not in dispute that the first respondent transgressed the alcohol policy. The first respondent’s case was that the sanction of dismissal was harsh because he had not consumed alcohol in the workplace.

[29] The applicant led evidence regarding the nature of its zero-tolerance policy and the rationale underpinning it. In particular, clause 6 reads:

‘6.1 Air Products has a zero-tolerance to alcohol and drug abuse on company premises.

The alcohol limit on the company is 0.00% (zero percent) alcohol in blood and not the 0.02% or 0.05% legal driving limit.

6.2 The Company recognises the need for a safe working environment and, although it has no intention to enter into a general practice of medicine, accepts that its primary objective is to act to prevent the introduction of unsafe situation onto any of its company premises through the presence in those company premises of person/s under the influence of any alcohol/drugs.

6.3 APSA will not tolerate the following on any of its premises:

- the use/consumption, sale and possession of alcohol and/or illegal drugs

- the presence of illegal drugs in any person’s system or person under influence,

- the habit of abusing or misusing legal drugs such as those prescribed by a medical/health practitioner as well as over the counter drugs.’

[30] In addition, the applicant’s Code of Conduct states that having alcohol above the limit of 0.00% is a “criminal/major/serious offence and carries a sanction of dismissal”. Mr Van Tonder testified that the applicant’s workplace was intrinsically dangerous and that it necessitated a careful safety precaution in order to prevent the occurrence of potentially disastrous workplace accidents, which would not only be detrimental to the applicant and its employees but also catastrophic to the surrounding community and the environment.

[31] It was the applicant’s case that the zero-tolerance policy was justifiable in light of its operational requirements and further obligatory in terms of the Employment Equity Act[6] as well as the Occupational Health and Safety Act[7]. The first respondent did not lead evidence to contradict that the applicant’s workplace was dangerous and that the rule was not justifiable. Thus, it is apparent that the applicant’s adoption of zero-tolerance policy to alcohol being in the bloodstream of employees was not only reasonable but also obligatory.

[32] The applicant further submitted that notwithstanding the apparent need for a strict zero-tolerance policy towards alcohol, a clause of the policy assuages the potential harshness. In particular, clause 7.8.1 of the alcohol policy allows employees, who have consumed alcohol the previous day and suspects that they may still have the presence of alcohol in their blood stream, to submit themselves to a voluntary alcohol screening test prior to entering the premises. In a case where the employee tests positive, they are sent back home and subsequently disciplined for the lesser offence of absenteeism.

[33] Further evidence was that the first respondent was aware of the policy in that he could access it from a computer system called Lotus notes, he had been working for the applicant for five years and he conceded that he was aware of the policy.[8] On 23 May 2018, he requested a voluntary screening in terms of the policy. Accordingly, he signed a form which stated that if his blood is found to have alcohol which is more than the limit of 0,00% he would not be allowed to enter the applicant’s premises and he would be deemed to be absent without pay for that day. The breathalyser test indicated that the first respondent tested positive for alcohol, was sent back home and was marked absent.

[34] The following day, upon his return to the first respondent gave a written explanation of why he was found to be above the 0,00% limit and stated that it was due to a family matter which occurred the previous day. The first respondent informed his supervisor that he did not have any alcohol problems. It was at this point that the severity of testing positive for alcohol was discussed with the first respondent.

[35] On 02 August 2016, the applicant was subjected to a written examination to test his knowledge of the applicant’s alcohol policy. The first respondent answered correctly that the blood limit was 0,00% and that testing positive for alcohol was a dismissible offence and that employees could request voluntary screening if they suspected that they could test positive. In light of the above, it was not in dispute that the first respondent was aware of the rule.

[36] The applicant led evidence that the rule was consistently applied in that 17 of its employees were dismissed in the past year for transgressing the zero-tolerance policy towards alcohol.

[37] The applicant further led evidence to show the reasonableness of the policy in relation to the first respondent’s role and responsibilities. In this regard, the applicant’s evidence was that the first respondent was required to make a value judgment in carrying on his duties of briefing, debriefing and dispatch drivers who control trucks that could reach up to 50 tons. It was for this reason that the applicant submitted that despite the fact that the first respondent was not working with the dangerous equipment per se, he was working in a dangerous site and his role was critical.

[38] Notwithstanding the above evidence, the arbitrator failed to assess whether the circumstances of the case warranted the applicant to adopt the zero-tolerance policy. Instead, he found Mr Van Tonder’s testimony that the first respondent’s part of his duties was to hand over the dangerous vehicles to the drivers, which needed him to make a judgment whether the driver standing before him was fit to drive the vehicle to be indicating a contradictory understanding of the application of the applicant’s rule. This was so because the applicant failed to consider whether the first respondent was fit, so said the arbitrator.

[39] The arbitrator relied on the judgment in Tanker Service (Pty) Ltd v Magudulela[9], which was relied on in Tosca Labs v CCMA[10] to find that the employee will only be under the influence of alcohol if he was not able to perform the tasks entrusted to him. Further that the policy of zero tolerance should not lead to the termination of employee’s services in all circumstances specifically where it was not established that the employee was not able to execute his duties.

[40] The current matter is distinguishable from case on which the arbitrator relied. In Tanker Service (Pty) Ltd v Magudulela, the question was whether Mr Magudulela’s faculties had been impaired to an extent that he could no longer perform the skilled,

technically complex and highly responsible task of driving an extraordinary heavy vehicle carrying a harzadous substance. Having

found that he could not do so in his condition, the Court concluded that he committed an offence justifying dismissal.

[41] As aforesaid, in the current matter, the issue before the arbitrator was whether the first respondent transgressed the applicant’s zero-tolerance policy on alcohol. To do that, he was required to assess whether the applicant’s circumstances necessitated the adoption of a zero-tolerance policy and whether the dismissal was appropriate and proportional to the offence. The arbitrator did not do that. Instead, he delved into the enquiry regarding whether the first respondent was capable of performing his duties. In so doing, he committed an error in law and misconstrued the enquiry, which resulted in him arriving at the conclusion that a reasonable decision-maker could not arrive at. As such, for this reason only, his award stands to be set aside.

[42] In light of the above, I do not deem it wise to remit the dispute to the bargaining council for arbitration de novo. Instead, I will determine the dispute in terms of section 145(4)(a) of the LRA. To an extent that the applicant led undisputed evidence to show the need for zero-tolerance approach to the misconduct and the proportionality of the dismissal to the misconduct, its decision to dismiss the first respondent was justifiable.

Costs

[43] With regard to costs, it is my view that the requirements of law and fairness dictate that there should be no order as to costs.

[44] Accordingly, the following order is made:

Order

1. The arbitration award dated 18 March 2018, which was issued by the third respondent under the auspices of the first respondent, the National Bargaining Council for the Chemical Industry under case number FSCHEM40-17/18 is reviewed, set aside and substituted with the following order:

1.1 The dismissal of the first respondent was substantively fair.

2. There is no order as to costs.

D Mahosi

Judge of the Labour Court of South Africa

Representation

Counsel for the applicant: Advocate L. Moela

Instructed by: Cliffe

Dekker Hofmeyr Incorporated Attorneys

For the first respondent: Self

[1] Act 66 of 1995 as amended.

[2] 2007 (28) ILJ 2405 (CC).

[3] 2013 (6) SA 224 (SCA); 2013 (11) BLLR 1074 (SCA); 2013(34) ILJ 2795(SCA).

[4] At para 25.

[5] 2015 36 ILJ 2273 (LAC)

[6] Section 7(1) of the Employment Equity Act 55 of 1998.

[7] Act 85 of 1993, as amended.

[8] Index to transcript and record, p 20-21

[9] [1997] 12 BLLR 1552 (LAC)

[10] (2012) 33 ILJ 1738 (LC)