NUMSA obo Harris v Bargaining Council and Others (JR637/2012) [2015] ZALCJHB 413 (29 July 2015)

NUMSA obo Harris v Bargaining Council and Others (JR637/2012) [2015] ZALCJHB 413 (29 July 2015)

The court found that the employer failed to prove that the applicant was under the influence of cannabis as required by the Occupational Health and Safety Act regulations. The evidence showed that a person could test positive for cannabis for several weeks after use without being under the influence. The commissioner unreasonably equated testing positive with being under the influence, which is not what the law requires. As a result, the arbitration award was unreasonable and stands to be reviewed and set aside. The matter is referred back to the Bargaining Council for arbitration before a different commissioner.

Citation
[2015] ZALCJHB 413
Parties
Applicant: NUMSA obo William Julian Harris; Respondent: Bargaining Council; Respondent: Commissioner Claire Hock; Respondent: Hitachi Construction Machinery SA Company Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
29 July 2015
Case Number
JR637/2012
Procedural Posture
Review Application / Judgment
Outcome
Arbitration award reviewed and set aside; matter referred for fresh arbitration before a different commissioner; no order as to costs.
Judges
Coetzee
Legal Topics
Unfair Dismissal, Occupational Health and Safety Act, Arbitration Review, Substantive Fairness
Labour Law Civil Procedure Unfair Dismissal Occupational Health and Safety Act Arbitration Review Substantive Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

NUMSA obo William Julian Harris

Applicant

Bargaining Council

Respondent

Commissioner Claire Hock

Respondent

Hitachi Construction Machinery SA Company Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the dismissal of the applicant for testing positive for cannabis was substantively fair.
  2. 2 Whether the employer proved that the applicant was under the influence of cannabis as required by the Occupational Health and Safety Act regulations.
  3. 3 Whether the arbitration award was reasonable given the evidence presented.

Ratio Decidendi

The court found that the employer failed to prove that the applicant was under the influence of cannabis as required by the Occupational Health and Safety Act regulations. The evidence showed that a person could test positive for cannabis for several weeks after use without being under the influence. The commissioner unreasonably equated testing positive with being under the influence, which is not what the law requires. As a result, the arbitration award was unreasonable and stands to be reviewed and set aside. The matter is referred back to the Bargaining Council for arbitration before a different commissioner.

Court Disposition

Arbitration award reviewed and set aside; matter referred for fresh arbitration before a different commissioner; no order as to costs.

Orders

  • The arbitration award of 21 February 2012, reference MEGA32669, is reviewed and set aside.
  • The matter is referred to the Bargaining Council for arbitration before a different commissioner.