Jackson Transport (Pty) Limited v Khumalo and Others (JR283/18) [2021] ZALCJHB 148 (22 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR283/18

In the matter between:

JACKSON TRANSPORT (PTY) LIMITED

Applicant

and

MTHUTHUZELI ERNEST KHUMALO

First Respondent

THANDIWE TSHAYANA

Second Respondent

NATIONAL BARGAINING COUNCIL FOR

THE ROAD FREIGHT AND LOGISTICS INDUSTRY Third Respondent

Heard: 11 March 2021

Delivered: 22 June 2021

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 on 22 June 2021.

JUDGMENT

VAN AS, AJ

Introduction

[1] This is an application to review and set aside the Arbitration Award delivered by the second respondent on 22 January 2018 (“the Arbitration Award”).

[2] None of the respondents oppose the review application.

The material facts

[3] The applicant conducts business as a transport company.

[4] The applicant employed the second respondent as a driver on 21 September 2015.

[5] The On 6 July 2016, the applicant administered a drug test on a urine sample provided by the first respondent which tested positive for dagga.

[6] The first respondent disputed this drug test result and advised Mr Jacques Durant, the applicant’s Operations Manager that he wanted to have a second urine test done by Dis-Chem because he did not trust the applicant’s urine testing procedure.

[7] The applicant therefore suspended the first respondent until 21 July 2016 (i.e. for a period of some two weeks) so as to allow him to obtain this second urine sample test.

[8] The first respondent did not return to work on 21 July 2016. He instead returned to work on 23 August 2016. The first respondent provided a urine sample test result from Global Clinical and Viral Laboratory which indicated that he had tested negative for cannabis (i.e. dagga) in respect of a urine sample which he had provided on 17 August 2016.

[9] The applicant thereafter instituted disciplinary proceedings against the first respondent in which he was charged with testing positive for an illegal substance during July 2016 (“the First Charge”) and unauthorised absence from work between 27 July and 24 August 2016 (“the Second Charge”).

[10] The first respondent was found guilty on both these charges and dismissed from the employ of the applicant.

[11] The first respondent referred a dispute to the third respondent in which he challenged the substantive and procedural fairness of his dismissal. This dispute was arbitrated before the second respondent who thereafter delivered the Arbitration Award in which he found the dismissal of the first respondent to be substantively and procedurally unfair. The second respondent awarded compensation to the first respondent in the sum of R66 864,00, being the equivalent of 7 months’ remuneration.

The grounds of review

[12] The applicant essentially seeks to review and set aside the Arbitration Award on the following grounds:

12.1. The Commissioner acted unreasonably and thereby committed a gross irregularity in the conduct of the arbitration proceedings by finding that the applicant could not rely on the first urine test (and should have conducted a second urine test) before dismissing the first respondent on the First Charge (“the First Ground of Review”);

12.2. The second respondent acted unreasonably and thereby committed a gross irregularity in the conduct of the arbitration proceedings by finding that the first respondent had provided an acceptable explanation for his absence from work during the period 21 July to 24 August 2016 (“the Second Ground of Review”);

12.3. The Commissioner acted unreasonably and thereby committed a gross irregularity in the conduct of the arbitration proceedings by finding that the first respondent had not been afforded a reasonable opportunity to prepare for his disciplinary enquiry and that his dismissal was therefore procedurally unfair (“the Third Ground of Review”).

Evaluation of the merits

The First Ground of Review

[13] It is common cause that the first respondent advised Durant that he wanted a second urine test. It is further common cause that this second urine test was only done on 22 August 2016 in respect of a urine sample which the first respondent had provided on 17 August 2016.

[14] The second respondent concluded that the applicant was still required to obtain a second urine test despite the first respondent stating that he wanted his urine tested by an independent third party.

[15] I disagree with this conclusion. In my view, once the first respondent indicated that he wanted an independent party to test his urine sample, he essentially waived his right to have his urine sample subjected to a second laboratory test.

[16] The second respondent’s conclusion that the first respondent’s dismissal was substantively unfair because the applicant did not ensure that there was a laboratory test of the urine sample is therefore a conclusion which no reasonable decision-maker could have reached on the evidence before the second respondent. The second respondent therefore committed a gross irregularity in the conduct of the arbitration proceedings by arriving at such a conclusion.[1]

[17] The First Ground of Review should therefore succeed.

The Second Ground of Review

[18] The second respondent essentially found that the first respondent should not have been found guilty on the Second Charge because the applicant (and particularly Mr Durant) knew where he was during the period from 27 July 2016 until 23 August 2016.

[19] The fact that Mr Durant may have known about the first respondent’s whereabouts during this period does not mean that the first respondent had permission to be absent from work during this period.

[20] The second respondent essentially found that the first respondent’s absence from work during the period 25 July to 23 August 2016 was justified because the first respondent could not afford the cost of a second urine test.

[21] This conclusion, in my view, fails to take into account the fact that the first respondent could simply have asked the applicant to do a second urine test (i.e. the laboratory test) if he could not afford to have his urine tested by a third party.

[22] It is common cause that the first respondent visited the applicant’s premises on 25 July 2016 and spoke to Mr Durant. Whilst there is a dispute as to what transpired during this conversation, there was no evidence placed before the second respondent which showed or even suggested that the first respondent asked Durant for a second test of his urine sample (i.e. the laboratory test).

[23] In my view, the second respondent acted unreasonably and thereby committed a gross irregularity in the conduct of the arbitration

proceedings by finding that the first respondent had a valid reason to be absent from work during the period from 24 July to 23 August 2016.[2]

[24] The second respondent should instead have concluded that the first respondent was required to report for work on 24 July 2016 and could insist on a second test of his positive urine sample. On the second respondent’s reasoning, an employee who has returned a positive urine sample could simply stay away from work until he returned a negative urine sample and thereafter produce the negative urine sample and return to work.

[25] To condone such behaviour, in my view, would undermine the whole purpose of conducting urine samples on the drivers of long haul delivery vehicles.

[26] I therefore find that there is also merit in the Second Ground of Review.

The Third Ground of Review

[27] Ms Chantel Popham, the Chairperson of the first respondent’s disciplinary enquiry, confirmed that the first respondent had told her at the disciplinary enquiry that “I am not prepared but we can go ahead”.[3]

[28] The first respondent was charged with serious and dismissible misconduct. There appears to be no reason why Ms Popham could not have postponed the disciplinary proceedings for a couple of days so as to allow the first respondent to properly prepare for his disciplinary enquiry.

[29] This is essentially the conclusion which the second respondent reached in the Arbitration Award. It is, in my view, a conclusion which a reasonable decision-maker could have reached on the evidence before the second respondent.[4]

[30] There is therefore no merit in the Third Ground of Review.

Costs

[31] Ms Geldemacher who appeared for the applicant did not press for costs in this matter.

Substitution of the Arbitration Award

[32] This Court is in as good a position and another CCMA Commissioner to determine the appropriate compensation for procedural unfairness. This is especially so since the Arbitration Award was delivered more than three years ago and there would therefore be little or no purpose in remitting the dispute to the third respondent to determine fair and equitable compensation for procedural unfairness.

[33] In my view, compensation in an amount equivalent to one month’s salary would be just and equitable in the circumstances.

Order

[34] Accordingly, I make the following order:

1. The Arbitration Award is reviewed and set aside;

2. The Arbitration Award is substituted with an order that the dismissal of the first respondent is substantively fair but procedurally unfair;

3. The applicant is ordered to pay compensation to the first respondent in the sum of R9 552,00, being one (1) month’s salary, within ten (10) days of the date of delivery of this judgment;

4. There is no order as to costs.

__________________

M J VAN AS

Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant: Ms H Geldemacher of Cliffe Dekker Hofmeyr

On behalf of the First Respondent: No appearance

[1] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) at para 110

[2] Sidumo’s case supra

[3] Transcript, Cross-Examination of Popham, page 49, lines 10-12

[4] Sidumo’s case supra