Astore Africa (Pty) Ltd v Commission for conciliation, Mediation and Arbitration and Others (JR 1895/05) [2007] ZALC 54; [2008] 1 BLLR 14 (LC) (31 August 2007)

1IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO. JR 1895/05

In the matter between:

Astore Africa (Pty) Ltd Applicant

and

The Commission for conciliation,

Mediation and Arbitration First Respondent

Commissioner Thulani Akim Second Respondent

Klaas Machaba Third Respondent

___________________________________________________________________

Judgment

Molahlehi AJ

Introduction

The applicant seeks and order to review and set aside the arbitration award issued by the second respondent (“the commissioner”) under case number GA39235 – 04, dated 25 May, 2005.

The third respondent, who I will in this judgment refer to as “the employee” was employed by the applicant as a driver. The employee was dismissed for being found guilty of driving under the influence of alcohol.

The commissioner in his award found the dismissal to be substantively unfair and ordered compensation in the amount of R25 600-00 being an equivalent to 8 (eight) months salary of the employee.

The record

The applicant did not file a record of the arbitration proceedings and contended that the matter could be reviewed on the basis of the arbitration award.

In this regard the applicant relied on the decision of Shoprite Checkers Ltd v CCMA and Others (200) 7 BLLR 677 (LC) at 679 where the court held that there may be no need in some of the review applications, for a record of the proceedings. These are review applications where the irregularity may be so patent from the award that the record may not be necessary. The applicant further relied on the decision of the Labour Court in the case of Mondi Kraft (Pty) v PPWAWU and Others (1999) 10 BLLR 1057 at 1059 where the court held that:

“But where a defect as defined in section 145 is obvious from the award and the admitted facts before it, and if, from the award and the admitted facts, the court is satisfied that it has before it all material evidence relative to a particular point and is able make a finding that there is no rational objective basis justifying the connection made by arbitrator between the material and the conclusion he or she eventually arrive at on that point, the court is placed in a position to set aside to the award despite the absence of the entire record.”

I accept and align myself to the above authorities save to add that the court may also determine on the basis of the award and the admitted facts whether the award is irrational and justifiable. I would therefore proceed to consider the review on the basis of the arbitration award and the papers filed by both parties.

Background facts

It is common cause that the employee was employed as the driver earning R3200, 00, per month, prior to his dismissal by the applicant. The employee was charged for being under the influence of alcohol while driving the applicant’s vehicle and also of delivering to a customer whilst under the influence of alcohol.

It is also common cause that on the day in question the employee drove the applicant’s vehicle and undertook delivery of goods to one of the applicant’s customers known as Sappi. The issue of driving and delivering goods to a customer whilst under the

influence of alcohol arose when the employee arrived at Sappi for delivery. It is apparent that the security guards at Sappi where suspicious that the employee was under the influence of alcohol and in this regard required him to undertake an alcohol test which he agreed to. The result of the test was positive.

Thereafter the employee went back to his workplace where on arrival he was summoned to the HR office. It is not apparent from the papers before the court as to why he was called to the HR office; presumably it was because of the report received from Sappi concerning the applicant’s alcohol consumption. Mr Willmse, on behalf of the applicant testified that after arriving at the HR office the employee refused to leave the premises. He further testified that he arrived at the conclusion that the applicant was under the influence of alcohol because it was unusual for the employee not to understand a simple instruction that he should leave the premises. He also concluded that the applicant was under the influence of alcohol because he behaved very differently from his usual behaviour. He also took into account the report from Sappi which indicated that the applicant tested positive to alcohol.

Ms Benvie also testified on behalf of the applicant and stated that on the day of the incident she observed that the applicant smelled alcohol on his breath, his speech was slightly slurred and his eyes were very red.

Grounds for review

The grounds of review as set out in the applicants founding affidavit are as follows :

“The Second Respondent clearly and patently misdirected himself in Paragraph 7.5 and 7.6 of his Award by making the following contradictory statements [emphasis added] with regards to the standard /rule that had to be applied in assessing the state and the capacity of the Third Respond and on that date in question:...”

The applicant contended that the correct standard that the second respondent was required to apply given the nature of the function of the employee as the driver was whether or not, on balance of probabilities, based on the evidence presented the employee’s driving would have been affected by the consumption of alcohol and not whether the employee was rendered “unable to perform the duties instructed to him.” In this regard the applicant argued that the commissioner misdirected himself by applying the wrong and inappropriate standard of conduct for the employee.

It is important to note that the applicant did not take issue in the founding affidavit and the heads of argument with the facts as summarized by the commissioner in the arbitration award.

In the arbitration award the commissioner summarizes the evidence of each of the witnesses including a summary of their response during cross examination. It is apparent from the arbitration award that the applicant called three witnesses to testify on its behalf. The key witnesses testified that they observed and in their view the applicant was drunk because he smelled alcohol, his speech was slurred his eyes were red and there was a report from Sappi confirming that he was drunk. The Sappi security guards did not testify and even though the results of the alcohol test on the employee was positive it did not indicate the extent of the alcohol content.

In addition, the applicant in its founding affidavit and the heads of argument did not take issue with the summary of the commissioner concerning evidence presented by its witnesses during cross examination.

In the case of Mr Wlllimse, the commissioners summarized his responses to cross examination as follows :

“In his opinion the applicant appeared to be drunk. The behavior of the applicant on the day of the incident was of the person who was drunk, how ever there was no proof that the applicant was drunk.”

The commissioner in his arbitration award found that:

“7.4 The respondent’s witnesses testified that the applicant was drunk on the date of the incident, because his speech was slightly slurred, he smelled alcohol on his breath and his eyes with very red. The evidence is probable cause the evidence was consistence (sic) and the applicant admitted that he smelled alcohol. It further indicates that the applicant consumed alcohol. The difficulty with this evidence is that it does not prove that charge brought against the applicant, because intoxication is a matter of degree.”

Having come to the above conclusion the commissioner found the dismissal of the employee to be substantively unfair because according to him the evidence was not sufficient to prove that the employee was so drunk that his faculties were impaired as a result of alcohol consumption.

Applicable legal principles

In terms of s145 of the Labour Relations Act 66 of 1995 (“the LRA”) arbitration awards may be reviewed and set aside if any party to a dispute alleges a defect in any arbitration proceedings under the auspices of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) or any of the bargaining councils. An arbitration award can be reviewed if there is a defect in it. A defect may in terms of s145 of the LRA, be as a result of a commissioner having -

“(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

Exceeded the commissioner's powers; or that an award has been improperly obtained.”

The test that has been consistently applied by the courts in considering whether or not an arbitration award should be reviewed was enunciated in Carephone (Pty) Ltd v Marcus NO & others (1998) 19 ILJ 1425 (LAC), where Froneman DJP, at paragraph 37 stated that:

“is there a rational objective basis justifying the connection made by the decision-maker between the material properly available to him and the conclusion that he or she eventually arrived at?”

O’Regan J, in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Tourism & others 2004 (4) (CC) at paragraph 45 held:

“The court should take care not to usurp the functions of the administrative agencies. Its task is to ensure that the decision taken by the administrative agencies fall within the bounds of reasonableness as required by the constitution.”

It has now become clear from a number of judgments that one of the constitutional imperatives is that the decisions of the CCMA commissioners must be justifiable in relation to the material presented to the arbitrator.

In this case, contrary to the applicant’s contention, the commissioner reasoned his award on what appears to be evidence presented before him by both parties. He applied the correct principles of evidence in arriving at his conclusion that the probabilities favoured the employee and not the applicant.

The decision and the reasons given by the commissioner do not support an inference of misconduct, irregularity or impropriety on the part of the commissioner. The decision is rationally justifiable in terms of the reasons given for finding the dismissal to be substantively unfair.

The New Shorter Oxford dictionary defines being drunk as:

“Affected by alcohol in the body to such an extent that one is without full or proper control of one’s faculties.”

In Mondi Paper Co v Dlamini (1996) 4 ALL SA 94, the Labour Appeal Court in dealing with facts which were very similar to the facts in the current case quoted with approval from Albertyn and McCairn Alchol, Employment and Fair Labour Practice at page 97 where it is said:

“Intoxication involves an impairment of the employee’s faculties, discernible effect upon his behavior beyond the limits of sobriety, not merely the smell of alcohol on his breath.”

The court (at page 97 G-H) said:

“In my opinion, the evidence goes no further than to establish that the Respondent had consumed alcohol and was smelling of alcohol at that time when the tests were taken. The fact that his speech was slurred is, in itself, not indicative of intoxication. It may be an indication of intoxication and it is one of the recognized methods of determining intoxication, but unless one excludes any other possibilities such as tiredness or the fact that the person has the nature of a tendency to slur his speech , it is not in itself proof of intoxication.” Later on in the same judgment at page 98 H-I the court held that: “In my view the evidence did not justify a finding that the Respondent was guilty of drunkenness, giving to that word the meaning which one would normally give to it in relation to the person who had consumed alcohol to excess as opposed to one who has merely consumed some alcohol. The offense is not, as I have said, consumption of alcohol or having consumed alcohol before coming on duty, it is one of the drunkenness, and in my view that offense was not proved.” It is stated in a head note in Scheneier and London, Ltd v Bennett 1927 (1) TPD 346 that: “An employee’s drunkenness is not a good ground for dismissal only if it is so gross or its results are such as to cause inefficiency in or neglect of the master’s work” It is common cause that the employee was on duty and drove the applicant’s vehicle on the day in question. The employee also conceded that he had made delivery to one of the customers of the applicant where the issue of his the driving under the influence of alcohol was raised by the security guards who required him to undertake an alcohol test. The results of the test were positive. The evidence of Mr Wilemse reveals that on the day in question the employee was called to the HR department and thereafter he refused to leave the premises when required to do so. He testified that the behavior of the employee together with the report which he received from Sappi convinced him that the employee was drunk.

“In my opinion, the evidence goes no further than to establish that the Respondent had consumed alcohol and was smelling of alcohol at that time when the tests were taken. The fact that his speech was slurred is, in itself, not indicative of intoxication. It may be an indication of intoxication and it is one of the recognized methods of determining intoxication, but unless one excludes any other possibilities such as tiredness or the fact that the person has the nature of a tendency to slur his speech , it is not in itself proof of intoxication.”

Later on in the same judgment at page 98 H-I the court held that:

“In my view the evidence did not justify a finding that the Respondent was guilty of drunkenness, giving to that word the meaning which one would normally give to it in relation to the person who had consumed alcohol to excess as opposed to one who has merely consumed some alcohol. The offense is not, as I have said, consumption of alcohol or having consumed alcohol before coming on duty, it is one of the drunkenness, and in my view that offense was not proved.”

It is stated in a head note in Scheneier and London, Ltd v Bennett 1927 (1) TPD 346 that:

“An employee’s drunkenness is not a good ground for dismissal only if it is so gross or its results are such as to cause inefficiency in or neglect of the master’s work”

It is common cause that the employee was on duty and drove the applicant’s vehicle on the day in question. The employee also conceded that he had made delivery to one of the customers of the applicant where the issue of his the driving under the influence of alcohol was raised by the security guards who required him to undertake an alcohol test. The results of the test were positive.

The evidence of Mr Wilemse reveals that on the day in question the employee was called to the HR department and thereafter he refused to leave the premises when required to do so. He testified that the behavior of the employee together with the report which he received from Sappi convinced him that the employee was drunk.

In analyzing the evidence before him the commissioner correctly pose the question to be “whether the applicant was under the influence of alcohol while driving the company’s vehicle and whether the applicant was under the influence of alcohol when he made to deliveries to the respondent’s customers.” The answer he arrived at was in the affirmative. The commissioner then proceeded to ask himself the question which was key to the enquiry. The question was whether the employee would not have been able to perform his duties because of the consumption of alcohol. In answering this question the commissioner concludes that the applicant had to prove on the balance of probabilities that the employee’s ability to drive was affected because of the consumption of alcohol. He found that there was no evidence from the applicant that his ability to carry out his duties were impaired by the consumption of alcohol. The award by the commissioner is rational and justifiable. He arrived at his conclusion after considering and weighing the evidence before him. His reasoning and conclusion is above reproach. In the premises amid the review application is dismissed with costs. _______________ Molahlehi J Date of Hearing : 31 May 2007 Date of Judgment : 31 August 2007 Appearances: For the Applicant: M Booparim of Bagraims Attorneys For the Respondent: S Laka of Cottzer De Beer Inc

In analyzing the evidence before him the commissioner correctly pose the question to be “whether the applicant was under the influence of alcohol while driving the company’s vehicle and whether the applicant was under the influence of alcohol when he made to deliveries to the respondent’s customers.” The answer he arrived at was in the affirmative.

The commissioner then proceeded to ask himself the question which was key to the enquiry. The question was whether the employee would not have been able to perform his duties because of the consumption of alcohol. In answering this question the commissioner concludes that the applicant had to prove on the balance of probabilities that the employee’s ability to drive was affected because of the consumption of alcohol. He found that there was no evidence from the applicant that his ability to carry out his duties were impaired by the consumption of alcohol. The award by the commissioner is rational and justifiable. He arrived at his conclusion after considering and weighing the evidence before him. His reasoning and conclusion is above reproach.

In the premises amid the review application is dismissed with costs.

_______________

Molahlehi J

Date of Hearing : 31 May 2007

Date of Judgment : 31 August 2007

Appearances:

For the Applicant: M Booparim of Bagraims Attorneys

For the Respondent: S Laka of Cottzer De Beer Inc