Diesel Supply and Logistics (Pty) Ltd v Skhosana and Others (JR286/15) [2016] ZALCJHB 525 (14 October 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG

JUDGMENT

Case no: JR 286/15

In the matter between:

DIESEL SUPPLY AND LOGISTICS (PTY) LTD Applicant and R SKHOSANA First Respondent COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION Second Respondent ALFRED LESIBA MOLOMO Third Respondent

Heard: 13 October 2016

Delivered: 14 October 2016

VAN NIEKERK J

[1] This is an application to review and set aside an arbitration award issued by the first respondent (the arbitrator). In his award, the arbitrator found that the third respondent (the employee) had been unfairly dismissed and ordered the applicant to pay him compensation in the amount of R58 000, the equivalent of nine months’ remuneration.

[2] The employee was employed in August 2013, as a tanker driver responsible for the collection and transportation of fuel. The

employee was dismissed on 2 May 2014, after he had tested positive for using marijuana.

[3] The arbitrator commenced the proceedings by (commendably) attempting to identify the issues in dispute. The exchange between the parties revealed that the applicant asserted that the employee was guilty of using an illegal substance in the form of marijuana; the employee denied that assertion. The central issue that the arbitrator was required to determine was a factual one- whether the employee had used marijuana.

[4] The first witness to testify for the applicant was a Ms Corné Muller, the applicant’s operations manager. She testified that the applicant is in the business of the transportation of fuel products. Muller testified that some of the drivers had reported to her that the employee was smoking illegal substances before and while he operated the applicant’s trucks. The applicant then conducted an unscheduled drug test on all of the drivers. They were each given a clean glass and asked to provide a urine sample. The sample was sealed. Each driver was asked to open the seal in Muller’s presence and to write their names on the test. A testing strip was inserted into the sample and in the employee’s case, he tested positive for marijuana. Muller further explained that given the nature of the applicant’s business, if any driver tested positive for the use of any illegal substance the applicant stood to lose a licence issued by Sasol, in which event the applicant to lose income or even close down. Muller further testified that after she had received the information from other drivers regarding the employee’s use of marijuana, she noticed that he is mouth was dry, he was constantly licking his lips,

spitting, that he had red eyes and was tired.

[5] After the test, the employee was notified to attend a disciplinary hearing, which resulted in his dismissal.

[6] In cross-examination, Muller was asked whether the applicant’s employees knew that they could be tested at any time. She replied in the affirmative. When asked if she had observed the employee using marijuana, she replied in the affirmative – after a tipoff that the employee was smoking marijuana at that very moment, she went outside and observed the employee sitting under a tree with a cigarette in his hand. The whole area was filled with smoke and the smell of marijuana. When questioned about the authenticity of the testing mechanism, Muller replied that it had been tested by the drug board and was an extremely reliable test. She denied that it was necessary to employ someone who is a professional to administer any test or additional test and maintained that the drug test used was both reliable and used across the industry in which the applicant was engaged. When questioned about the sanction of dismissal, Muller testified that driving a fuel truck under the influence of an illegal substance with 40,000 l of explosive fuel in a truck necessarily had the consequence of dismissal.

[7] The arbitrator then intervened by enquiring as to the authenticity and reliability of the drug test. Muller replied that the test was supplied by a pharmaceutical company. Muller was then asked by the arbitrator why the employee had not been sent to a medical facility so that medical experts could test him ‘because they can see that the whole range of drugs like take like heroin and the like, negative, negative marijuana positive why did the company take that decision? (sic)’. Muller replied that the applicant relied on the drug test that was administered. In re-examination, Muller testified that the test that was administered tested not only for marijuana, but for heroin, codeine, tik and other drugs. The test administered on the employee did not show a positive result for any drug other than marijuana.

[8] The employee testified that on 3 March he went to visit the management office to see a Mr Schoeman. He was there to request an increment so that he could purchase retirement funding. He stated that Schoeman told him to return on 7 April. On that date (the day on which the drug test was administered) he went to the boardroom. On entering the boardroom he and the other drivers were informed by Schoeman that he had bought a drug test from Clicks and that they were to urinate into a glass to provide a urine specimen. He took the glass to Muller’s office. Muller wrote his name on the test. After a few minutes, the test registered positive. The test had not been sealed. Schoeman phoned the applicant the next day to tell him that the test was positive. He advised Schoeman that he did not smoke marijuana and never had. At other companies in which the employee had worked, drivers would be taken to a medical doctor for testing. Under cross-examination, the employee did not dispute that he had been tested on 7 April. He added further that on that date, he was not on duty, he was there to hand over work done the previous week and to discuss his request in relation to retirement funding. In relation to the employee’s evidence that Muller herself wrote the applicant’s name on the test, it was put to him by reference to an employee information form completed by the employee at the commencement of his employment, that the handwriting on the form that he had completed was exactly the same handwriting that appeared on the drug test. The employee could not provide an explanation, he simply denied the assertion that he was lying under oath. The employee did not dispute that he was aware that the use of marijuana was unlawful. Under re-examination, the employee testified that Schoeman had asked him whether he could take him to his doctor, to which he replied in the affirmative. However, he (the employee) was not taken to any doctor.

[9] What emerges from the evidence that served before the arbitrator is that Muller’s evidence was essentially unchallenged.

Specifically, no alternative version was ever put to her for her comment. Further, the employee’s representative did not dispute that the employee had been seen smoking marijuana by other persons, including other drivers and by Muller. It was never put to Muller that this would be denied by the employee – all she was asked is whether other drivers would be called to testify. It was also not disputed that Muller had witnessed other symptomatic indicators of substance abuse; all that was put to her was that these may have been the employee’s reaction to the fear of being subjected to the drug test. It was never specifically put to Muller that the test had been unlawfully or unfairly conducted, nor was her evidence that the test was one generally used in the industry placed in dispute. Also not disputed during her cross examination was Muller’s evidence that the employee had written his own name on the test, which was sealed. It was never put to her that the employee would claim that she had written his name on the test, nor was it ever put to her that Schoeman had offered to take the employee to a doctor for a further test.

[10] In contrast, the nature of the employee’s evidence is a bare denial.

[11] The arbitrator’s reasoning is best discerned from the following paragraphs in his award:

34. The respondent in this matter did not submit documentary information relating to the charges. The respondent did not supply me with a record of the disciplinary hearing.

35. The respondent could not supply the hearing with the disciplinary code of conduct. Mrs Corne Mulder wanted me to just accept his oral submissions that a fair procedure was followed.

36. Where I stand is that, should a recognised disciplinary offence be reflected, the employee should be able to comprehend these charges. I do, however, agree that any incorrect characterisation of an offence does not render the employer’s case fatal. An arbitrator should be able to establish the true nature of the dispute.

37. No medical expert was called to come and interpret the device.

38. In analysing the evidence tendered, my view is that the major weakness of the applicant’s case in these proceedings was the failure of the representative to tender any documentary evidence that proves that they were to present expert evidence that would have elicited the use of marijuana on the part of the applicant.

39. The respondent did not call Mr Schoeman as a witness.

40. Respondent did not call the employees who are said to have reported to Mrs Mulders’ that the applicant smoked marijuana.

41. In the premises I consider a financial compensation of 9 (nine) months’ salary to be just and equitable under the circumstances. In awarding financial compensation, I shall be guided by consideration of the extent of the unfairness of the dismissal. In arriving at this decision, I have considered future prospects of employment for the applicant. The time that has elapsed since the dismissal of the applicant is not considerable; the employment duration was more than three years. There are prospects that he will find alternative employment, though he is in his late 50s…

45. … I have come to the conclusion that the respondent contravened the provisions of section 188 (1) of the LRA. The dismissal was both procedurally and substantively unfair.

49. … The employer was vindictive and malicious in its actions…

51. I am not unmindful to the fact that this is a business concern; however the message of justice and equity as part of a normative value system in our constitutional democracy must be instilled and inculcated amongst all in this country. Respondent has acted in flagrant disregard and contempt to the laws of this country.

(Sic)

[12] This court is entitled to interfere with an award made by a commissioner if and only if the commissioner misconceived the nature

of the enquiry (and thus denied the parties a fair hearing) or committed a reviewable irregularity which had the consequence of an unreasonable result. The applicant contends for the latter, on the basis reflected above. However, the failure by an arbitrator to attach particular weight to evidence or attachment of weight to the relevant evidence and the like is not in itself a basis for review; the resultant decision must fall outside of a band of decisions to which reasonable decision-makers could come on the same material (see Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA)).

[13] The Labour Appeal Court recently affirmed that while the failure of an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be held to be an irregularity, before the irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome (see Head of Dept. of Education v Mofokeng [2015] 1 BLLR 50 (LAC), at paragraph 30). In other words, whether a decision is unreasonable in its result ultimately requires this court to consider whether apart from the flawed reasons of or any irregularity by the arbitrator, the result could still be reasonably reached in

the light of the issues and the evidence.

[14] In Coega Development Corporation (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (2016) 37 OLJ 923 (LC), Myburgh AJ undertook a comprehensive review of the application of these principles. He noted that where an arbitrator is required to resolve a factual dispute, the arbitrator is required to undertake a balanced assessment of the credibility, reliability and probabilities associated with the evidence (see Sasol Mining (Pty) Ltd v Ngqeleni NO & others (2011) 32 ILJ 723 (LC)). Arbitrators are obliged to weigh all of the relevant evidence and probabilities before drawing inferences and making findings (see paragraph [65] of the judgment, and the reference to Minister of Safety and Security & another v Madikane & others (2015) 36 ILJ 1224 (LAC)). As Myburgh AJ notes, a failure properly to determine a factual dispute, or draw inferences or make factual findings, a failure to do so does not in itself constitute a basis for review – the decision to which the arbitrator comes must be substantively unreasonable. The court summarised the position (particularly following the Mofokeng judgement as follows:

[69] The shorthand for all of this is the following: where a commissioner misdirects him or herself by ignoring material facts or considerations (brought about by, for example, not engaging in proper analysis of the evidence, as per Sasol Mining and Madikane), the award will be reviewable if the distorting effect of this misdirection was to render the award unreasonable.

[15] If the arbitrator’s deviation from the norm represented by the right to a fair hearing is egregious, it is not likely that the outcome of the proceedings would be reasonable.

[16] The Labour Appeal Court has previously held that for an arbitrator to rely on evidence in the absence of that evidence having been put to the opposing party’s witnesses under cross-examination, is in itself a reviewable defect (see SA Nylon Spinners (Pty) Ltd v Davids [1998] 2 BLLR 135 (LAC) and ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 26 ILJ 1652 (LAC). In the ABSA Brokers judgment, Nkabinde AJA emphasised that it is an essential part of the administration of justice that a cross-examiner must put as much of his or her case to witness as concerns that witness. Specifically, the court held that the witness’s attention must first be drawn to a particular point on the basis of which it is intended to suggest that he was she is not speaking the truth and thereafter be afforded with an opportunity of providing an explanation. A failure to cross-examine may, in general, imply acceptance of the witness’s testimony. The court went on to refer to an extract from a judgment of the Constitutional Court:

It is apposite to refer to what the Constitutional Court had to say in this regard in President of the Republic of South Africa v SA Rugby Football Union 2000 (1) SA 1 (CC) at para 61-63. There the court said:

‘[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule, it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character…

[63] The precise nature of the imputation should be made to the witness so that it can be met and destroyed, particularly where the imputation relies upon inferences to be drawn from other evidence in the proceedings. It should be made clear not only that the evidence is to be challenged, but also how it is to be challenged. This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which reliance is to be placed.

[17] In the present instance, the arbitrator was confronted with two mutually destructive versions. That being so, he was obliged to consider the conflicting versions and to make findings based on the probabilities. The arbitrator did not engage in a proper enquiry to determine which version was the more probable. He simply accepted the employee’s version as being more probable, without any consideration whatsoever of the probabilities inherent in either version. Further, the arbitrator clearly failed to apply his mind to the evidence before him and to consider the evidence holistically. While he referred to the ‘probative value’ of the two versions before him, he failed to consider that the material elements of employee’s version had never been put to the applicant’s witness and to factor this into his assessment of the probabilities.

[18] Without the employee’s representative putting specific versions related to each of the employees to the applicant’s witness, the arbitrator ought not to have accepted these versions over the version of the applicant’s witness. The arbitrator in effect preferred untested evidence over evidence that had been tested in cross- examination. That is a gross irregularity in the conduct of the proceedings.

[19] The arbitrator further failed to appreciate that Muller’s evidence was by and large undisputed, including evidence relating to the serious and dismissible nature of the offence, the practice in the industry, and the disciplinary hearing that was conducted. It was never contended by the employee, either in cross-examination or his own evidence in chief, that the test was not reliable or that it was not in use throughout the industry.

[20] The summary of the evidence by the arbitrator simply omits Muller’s evidence of her personal witness to the employee smoking marijuana (an assertion that was uncontested) and that evidence was simply ignored. Similarly, the arbitrator simply ignored Muller’s evidence regarding the seriousness of the misconduct committed by the employee and the potentially lethal consequences of his action.

[21] Insofar as the ‘paucity of documentation’ provided by the applicant underpins the arbitrator’s reasoning and his award, the award suggests that the applicant had been requested or required to produce documents and in particular, a copy of its disciplinary game procedure and that it had failed to do so. At no stage, whether in the opening statements, the examination and cross-examination of witnesses, was the procedural fairness of the employees dismissal ever disputed, nor had the applicant been requested to furnish the documents concerned. I fail to appreciate on what possible basis the commissioner made the finding of procedural unfairness that he did. Procedural fairness had never been squarely placed in dispute, and there was no evidence from either witness that made any reference to the pre-dismissal procedure, but for Muller’s undisputed evidence that the employee had been required to attend a disciplinary hearing and that he was dismissed after the hearing.

[22] Had the arbitrator properly applied his mind to the evidence, he would have come to the conclusion that the evidence of the

applicant’s witness stood largely uncontested and undisputed. It was not denied that Muller and other drivers had seen the

applicant smoke marijuana. In the absence of any challenge to that evidence, it was not necessary, as the arbitrator appears to have thought, for the applicant to call any of these witnesses to corroborate Muller’s evidence. There was simply no need to do so. It is also clear to me that the arbitrator failed to apply his mind to the employee’s evidence regarding Schoeman. Muller had made no reference to Schoeman when she testified, nor had the employee’s representative when she cross-examined Muller. The evidence regarding Schoeman emerged for the first time when the employee gave evidence. I fail to appreciate how in these circumstances the applicant can be criticised for failing to call Schoeman as a witness, let alone how that failure can form the basis of a probability finding against the applicant. At the time that the applicant closed its case, there had been no mention of Schoeman or what he had supposedly said to the employee.

[23] Similarly, in relation to the arbitrator’s finding that the applicant had failed to call medical expert evidence, I fail to appreciate, in circumstances where the authenticity of the test and its use in the industry was never seriously disputed by the employee’s representative, how such a finding can be made. To the extent that the arbitrator’s finding is based on his intervention when he asked Muller why the employer not been sent to a medical facility, that question had as its purpose the ability for medical experts to test for a ‘whole range of drugs.’ Given that the integrity of the test administered had not been called into question and that the test itself was capable of testing for the presence of a number of other drugs (which was never disputed) there is no basis on which the arbitrator could reasonably rely on make a finding he did.

[24] Finally, in relation to the amount of compensation awarded by the arbitrator, he specifically takes into account the fact that the employee had been employed for more than three years. In the introduction to his own award, the arbitrator records that the

applicant had been employed in August 2013 and dismissed in May 2014, a period of some eight months.

[25] In short: the arbitrator reached conclusions without properly applying his mind to the credibility of the witnesses who testified

before him. Had the arbitrator done so, he would have rejected the employee’s version. There is no basis on which to rescue the award, i.e. to find that notwithstanding the arbitrator’s shortcomings, the result of the proceedings under review can

nonetheless be sustained. On a proper assessment of the available evidence, the employee committed the misconduct with which he had been charged, and his dismissal was justified. The award accordingly stands to be reviewed and set aside.

[26] The applicant did not pursue an order for costs. It is appropriate in this context to record that had the arbitrator or the CCMA elected to oppose this application, I would have had no hesitation in making an order for costs against them, jointly and severally. Indeed, it had crossed my mind to invite the arbitrator to make submissions as to why he should not be held personally liable for the costs of these proceedings. I say this on account of the unnecessary and gratuitous remarks made by him in regard to the applicant and the manner in which it dealt with this matter. The conclusion that the applicant had been ‘vindictive and malicious in its actions’ has no basis or any substance whatsoever. Similarly, the arbitrator’s egregious attack on the applicant recorded in paragraph 51 of the award, in which he states that the applicant somehow is in breach of the normative value system that underpins the Constitution and that it has acted in flagrant disregard and contempt for the laws of this country, has no substance. Indeed, it is the arbitrator who has failed in his constitutional obligation to ensure fairness to both parties and to afford them both a fair hearing.

I make the following order:

1. The arbitration award issued by the first respondent under case number GATW 6558-14 dated 8 February 2015 is reviewed and set aside.

2. The award is substituted by the following:

‘The applicant’s dismissal was substantively and procedurally fair.’

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: Ms H Strijdom, Helena Strijdom Attorneys

For the third respondent: Adv M Coetzee, instructed by Law Clinic, University of Pretoria