Scaw South Africa (Pty) Ltd v NUMSA obo Sibiya and Others (JR 897/21) [2022] ZALCJHB 370 (1 September 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JR 897/21

In the matter between:

SCAW SOUTH AFRICA (PTY) LTD Applicant and NUMSA obo DUMISANI SIBIYA First Respondent METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL Second Respondent MICHAEL HOWITZ N.O. (AS ARBITRATOR) Third Respondent

Heard: 28 July 2022

Delivered: 1 September 2022

Summary: Bargaining Council arbitration proceedings – review of proceedings, decisions and awards of arbitrators – test for review – s 145 of LRA 1995 – determination of gross irregularities and unreasonable outcome

Dismissal – employee testing positive for alcohol in blood stream at workplace – principles considered – conduct of employee constituting serious misconduct considering workplace – zero tolerance approach applicable – arbitrator failing to have proper regard to serious nature of misconduct – award reviewable

Misconduct – dismissal as an appropriate sanction – principles considered – proper consideration of Sidumo factors justifying dismissal – arbitrator becoming embroiled in irrelevant considerations – arbitrator’s finding that dismissal not appropriate unreasonable and reviewable

Procedural fairness – arbitrator finding dismissal procedurally unfair – no case of procedural fairness made out in arbitration – procedural fairness not being in issue in any event – finding of procedural unfairness irregular – award reviewed and set aside

Review of award – conclusion of arbitrator irregular and unreasonable – arbitration award reviewed and set aside – substituted with award that dismissal fair

JUDGMENT: REASONS

SNYMAN. AJ

Introduction

[1] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[1] Ngcobo J said:

‘… the commissioner… does not start with a blank page and determine afresh what the appropriate sanction is. The commissioner's

starting-point is the employer's decision to dismiss. The commissioner's task is not to ask what the appropriate sanction is but whether the employer's decision to dismiss is fair…’

The significance of this dictum will become apparent below.

[2] The above being said, and in casu, the applicant has made application to review and set aside an arbitration award of the third respondent in his capacity as an

arbitrator of the Metal and Engineering Industries Bargaining Council (MEIBC), being the second respondent, as the bargaining council

having jurisdiction in this instance. The application has been brought in terms of section 145 of the Labour Relations Act[2] (LRA), as read with section 158(1)(g).

[3] This matter arose from the dismissal of the individual first respondent by the applicant for misconduct relating to him having tested positive for having alcohol in his blood stream at the workplace, following disciplinary proceedings. I will refer in this judgment, for the sake of convenience, to the individual first respondent as ‘Sibiya’, and to the first respondent union as ‘NUMSA’. NUMSA pursued an unfair dismissal dispute to the MEIBC on behalf of Sibiya, which dispute ultimately came before the third respondent for arbitration on 15 February and 15 March 2021.

[4] In an arbitration award dated 6 April 2021, the third respondent decided that the dismissal of Sibiya by the applicant was substantively and procedurally unfair. He consequently afforded Sibiya relief in the form of an award of reinstatement with retrospective effect to date of his dismissal, with back pay of 56 weeks, amounting to R100 800.00. It is this award of the third respondent that forms the subject matter of the review application brought by the applicant.

[5] The arbitration award of the third respondent was served on the applicant on 9 April 2021. The applicant’s review application was served and filed on 19 May 2021. Accordingly, the review application was brought within the time limit as contemplated by section 145 (1) of the LRA,[3] and is properly before Court.

[6] The applicant’s review application came before me for argument on 28 July 2022. After hearing argument by the applicant, and having read the pleadings and the record of the arbitration proceedings, I granted the following order:

1. The late filing of the record of the arbitration proceedings by the applicant is condoned.

2. The applicant’s review application is granted.

3. The arbitration award of the third respondent, being arbitrator M Howitz, dated 6 April 2021 and issued under case number MEGA 56004, is reviewed and set aside.

4. The arbitration award of the third respondent is substituted with an award that the dismissal of the individual first respondent, Dumisani Sibiya, was substantively and procedurally fair.

5. There is no order as to costs.

6. Written reasons for these orders will be handed down in due course.

[7] This judgment now constitutes the written reasons referred to in paragraph 6 of the order, above.

Condonation: Record

[8] The applicant served and filed the record of the proceedings outside the time limit prescribed by clause 11.2.2 of the Labour Court Practice Manual.[4] On 21 January 2022, the applicant filed an application for condonation seeking to condone this failure. The requirements for condonation are trite and are set out in the well-known judgment of Melane v Santam Insurance Co Ltd[5]. These requirements entail a consideration of the length of the delay, the explanation for the delay, the importance of the case (prejudice) and the prospects of success of the applicant. The requirements are interrelated, and must be holistically considered, with the proviso that if there is no explanation for the delay, then the prospects of success may well become irrelevant.[6]

[9] I first consider the length of the delay. I do not believe it to be unduly or excessively lengthy. The record was due by 19 November 2021 but was filed on 10 January 2021, making it some 54 days late. It is not the kind of delay that would mitigate against the granting of condonation, in the absence of a truly excellent explanation.

[10] Turning next to the explanation for the delay, it was explained that the audio recordings were only made available by the MEIBC on 25 August 2021, and the transcription was completed on 29 September 2021. Considering this time taken to complete the transcript, I am satisfied that the applicant acted promptly in having the transcription completed and the time taken to do is in line with how long it would normally take to complete this task. However, the MEIBC had failed to discover, along with the recording, the bundles used by the parties in the arbitration, despite a pending application to compel in terms of Rule 7A(4) earlier brought by the applicant. The applicant made several approaches to the MEIBC to obtain this documentary record, but all of these approaches failed. The applicant in the end was forced to discover its own copies of the bundles to supplement the record, and sought the consent of NUMSA to do so. The December holiday season intervened and no response was forthcoming from NUMSA. In the end, and in the new year (2022), the applicant then proceeded to add its own bundles to the record, and the entire record was then served and

filed on 10 January 2022.

[11] I am satisfied that overall considered; the explanation provided by the applicant is acceptable. It is clear to me that at all relevant

times, the applicant actively pursued the obtaining of the record. When it obtained the recording, it had the transcript completed in a reasonable time. It did not want to file the record without the documentary record, which had unfortunately not been discovered by the MEIBC, and this was a reasonable and understandable position to adopt. When the applicant, despite its efforts to obtain this from the MEIBC, was unable to secure this documentary record, it acted proactively to effectively reconstruct this missing part of the record out of its own documents. It also cannot be ignored that a significant portion of the delay occurred over the December holiday season.[7] The applicant has thus, in my view, provided a proper explanation for the delay in this instance.

[12] On the issue of prejudice, it is undoubtedly so that this consideration favours the applicant. If condonation is not granted, the review application would be deemed to be withdrawn,[8] and that would effectively non-suit the applicant. Fairness dictates that the applicant must be given an opportunity to present its case on review before this Court.

[13] Finally, the issue of prospects of success is interwoven with the merits of the review application, and should not be considered separately in this instance. Condonation is thus essential to enable the merits of the review application to be properly and fairly ventilated.

[14] For all the reasons set out above, I am inclined to grant the applicant’s application for condonation, thereby condoning the applicant’s late filing of the record of the proceedings in terms of Rule 7A(6).

The relevant background

[15] The background facts in this case were largely uncontested, and straight forward.

[16] The applicant conducts business as a metal refinery and foundry. It is a potentially dangerous workplace, containing moving machines, conveyer belts, and extremely hot metals being handled and worked with. It is subject to strict safety standards and protocols.

[17] Sibiya had been employed by the applicant first as an arc operator, having commenced employment on 11 June 2007. He was later appointed as a label operator in 2015 and occupied this position at the time of his dismissal in 2020. In the course of his duties, Sibiya would be required to work amongst moving machinery and a conveyor belt, and he would deal with extremely hot metals in the process of being cut, which could be very dangerous and pose a significant risk his safety and the safety of other employees if Sibiya was in any manner impaired by an intoxicating substance whilst fulfilling his duties.

[18] On 3 December 2019, Sibiya reported for work at gate 2 of the applicant’s factory premises. When seeking to report for work, Sibiya was subjected to a random breathalyser test by one of the trained security personnel manning the gate, being Nicholas Lebengu (Lebengu). In administering the test to Sibiya, the breathalyser exhibited a red light, indicating that Sibiya had alcohol in his system in excess of the allowed limit. The breathalyser also gave an actual reading of the blood alcohol level, and in this case, it exhibited a level of 0.059% for Sibiya.

[19] In terms of the applicant’s policy regulating the issue of employees being under the influence of alcohol, it was prescribed that an employee’s blood alcohol level was not permitted to be in excess of 0.050% (this policy will be dealt with later in this judgment). The blood alcohol level of Sibiya of 0.059% thus exceeded this limit.

[20] It turned out that Sibiya had been drinking the previous day and went to sleep at about 21h00. He reported for work at about 06h00. In this context, the test result made sense.

[21] The applicant at all times had in place what was called the ‘Safety Golden Rules’. In terms of ‘Golden Rule 1’, it is provided that any intoxication, whether it being alcohol or drugs, would not be tolerated.

[22] The applicant also had a formal disciplinary code and procedure in place (the code). In clause 4.9 of the code, it is provided that employees must at all times strictly comply with the Golden Safety Rules. Clause 4.14 provides that it is an offence to report for work whilst under the influence of any intoxicating substance, and that the applicant has the right to refuse entry to the workplace to an employee under such circumstances. In terms of clause 5.3.1, it is provided that in cases where specific examples are given in the code of actions of employees that will result in disciplinary measures, these examples only serve as guidelines. Then, under the groups of offences set out in tables in the code, which constitute these examples, refence is made to ‘Alcohol’, and it is reflected that for a first offence, a final written warning or suspension is appropriate, whilst the case of a second offence, dismissal or suspension is appropriate. It is however specifically reflected in the same table as follows: ‘Consider the nature of the job, location, degree of intoxication (ref appendix 2)’.

[23] As an appendix to the disciplinary code is then found the ‘Alcohol Use and Abuse Policy’ (the alcohol policy). The objective of the alcohol policy, as defined in such policy itself, is to inter alia to eliminate all risks that the use of alcohol can cause in the workplace, to eliminate alcohol related incidents, to eliminate the use of machinery whilst under the influence, and to ensure that all employees are aware of the dangers this may cause. It is then recorded that ‘This policy can only be achieved by a zero tolerance approach and applies to employees …’. In terms of the alcohol policy, provision is made for random breathalyser testing, with the aim of deterring employees from reporting for work if they were drinking the previous day. The legal limit for a positive test result is defined as 0.05% blood alcohol concentration. The alcohol policy then specifically deals with the applicable sanctions for this misconduct. It is provided that as a guideline, an employee will receive final written warning or suspension without pay for a first offence, and dismissal for a second offence. But that is not where it stops. It is then provided as follows: ‘In the situation where … employees whose work may threaten the lives of others by such behaviour such as vehicle drivers, crane drivers, loco drivers, machine operators, forklift truck drivers, etc, are found under the influence, they may be dismissed at the first offence’[9] (sic).

[24] Because of the above regulatory measures, a practice developed that employees, who may be unsure as to whether they have alcohol in their blood stream in excess of the limit, would come forward and ask for voluntary testing when arriving at work. In this respect, the alcohol policy then specifically provided that employees who so volunteer and then test positive, will not be disciplined, and would only be sent home for the day without pay for that shift.

[25] As a result of his breathalyser test result, and the regulatory provisions in place in the applicant, Sibiya was not allowed to work for his shift on 3 December 2019. This meant that the applicant had to obtain a substitute employee to replace him for the shift, which resulted in a cost to the applicant.

[26] On 3 February 2020, Sibiya was notified to attend a disciplinary hearing to be held on 5 February 2020. In this hearing, he would face the charge of: ‘You were found in breach of company’s disciplinary code with regards to permissible alcohol legal limit of 0.050% this relates to an incident that took place on the 3rd December 2019 at gate 2’ (sic).

[27] The disciplinary hearing took place on 5 February 2020. Sibiya pleaded guilty to the charge against him, at the outset of the hearing. As a result, no evidence was led in the disciplinary hearing on the issue of the misconduct itself. The disciplinary hearing focussed solely on the issue of an appropriate sanction. Sibiya referred to his length of service, his personal circumstances, and that he had asked for a second test, which was not given to him. He submitted that he had shown remorse because he pleaded guilty since he knew he was over the limit.

[28] The chairperson, after considering the submissions by both parties on the issue of an appropriate sanction, made a written finding on 5 February 2020 to the effect that Sibiya be dismissed. The reasons of this findings were, in summary, that: (1) Sibiya was well aware of the rule with regard to reporting for work and testing positive for alcohol; (2) the nature of the business of the applicant as well as the duties of Sibiya in the workplace made the misconduct dangerous; (3) the zero tolerance policy where it

came to this offence; and (4) the importance of the safety considerations. The chairperson did consider the personal circumstances, clean disciplinary record and length of service of Sibiya, but found this to be insufficient to mitigate against his dismissal.

[29] Sibiya filed an internal appeal against his dismissal on 13 February 2020. He was then afforded this internal appeal, and an appeal hearing was held on 20 February 2020. In a written finding dated 2 March 2020, this internal appeal was refused. Sibiya was then finally dismissed on 2 March 2020.

[30] Dissatisfied with being dismissed, Sibiya, through his union NUMSA, then pursued an unfair dismissal dispute to the MEIBC on 10 March 2020. As dealt with above, pursuant to such referral, the dispute came before the third respondent as arbitrator.

[31] In deciding the dispute, the third respondent extensively dealt with considerations applicable to the existence of the misconduct itself. In fact, the bulk of his reasoning in his award is devoted to this. In a nutshell, and summarizing several paragraphs of reasoning of the third respondent in this regard, the third respondent fixated on an error committed by Lebengu when recording the breathalyser findings in his event report, where he wrote 0,59% on the report instead of 0.059%. The third respondent referred to the evidence presented by the applicant to explain this, but was unwilling to accept any of it, and maintained a view that the existence of this error rendered the results questionable. Even in the face of the result actually not being contradicted in any of the evidence, and no contrary testimony being presented of any possible wrong or other test result, the third respondent found that this error by Lebengu leaves one with ‘… concern to the validity of his report and his testimony …’.

[32] The third respondent then had a full go in his finding at the chairperson of the disciplinary hearing, effectively accusing her of altering records to suit the charges. He finds that he cannot overlook these ‘glaring errors’. He reasons that ‘… If the test results were recorded incorrectly they should become null and void as they cannot be corrected in the disciplinary inquiry …’. This was despite the fact that as a result of the guilty plea, there was no need for evidence about the existence of the misconduct in the disciplinary hearing.

[33] According to the third respondent, the disciplinary code of the applicant provided that in the case of an alcohol offence such as had occurred in this case, a final written warning or an unpaid suspension was competent as a sanction, and that it is only for a second offence that dismissal was justified. On this basis, the third respondent held that the applicant’s evidence that employees were always dismissed for this misconduct and a zero tolerance approach was adopted in this regard, even for a first offence, was to be rejected. The third respondent further reasoned that if the applicant followed such an approach, then the disciplinary code had to also be in error, as it provided otherwise.

[34] The third respondent then concludes that: ‘Facts are facts, I am not here to overlook errors …’. The third respondent however did accept that the breathalyser turned red, meaning that Sibiya did test positive for having alcohol in his system. The third respondent however determined that for this misconduct, Sibiya should have received a final written warning or unpaid suspension. It is clear that the so-called errors the third respondent believed existed was the main cause for this determination.

[35] Despite the fact that third respondent’s reasoning in his award was mostly dedicated to disavowing the test results, he nonetheless concludes that Sibiya was ‘guilty as charged’. However, Sibiya was charged with having alcohol in excess of the allowed 0.050% in his system, and this finding of the third respondent thus seems to be at odds with the third respondent’s own earlier reasoning. The third respondent then concluded his reasoning by expressly finding that the sanction of dismissal was too harsh, but provides no detailed reasoning for this finding. Also, and without any reasoning to indicate why, the third respondent also finds the dismissal of Sibiya to be procedurally unfair. The third respondent then awarded Sibiya fully retrospective reinstatement with back pay, as referred to above. All these findings then led to the current review application.

The test for review

[36] The test for review is trite. In Sidumo supra[10] the Court held that ‘the reasonableness standard should now suffuse s 145 of the LRA’, and that the threshold test for the reasonableness of an award was: ‘… Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...’[11]. This means that the award in question is tested against the facts before the arbitrator to ascertain if it meets the requirement of reasonableness.[12] In conducting this test it is always necessary and important for the Court to enquire into and consider the merits of the matter and the entire evidence on record in deciding what is reasonable.[13] In Herholdt v Nedbank Ltd and Another[14] the Court said:

‘… A result will only be unreasonable if it is one that a 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 the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.’

[37] In sum, applying the correct review test has a logical chronology. First, it must be determined if there a failure or error on the part of the arbitrator. Second, and where there is such a failure or error, it must be shown that the outcome arrived at by the arbitrator was unreasonable, based on all the evidence and issues before the arbitrator, even if it may be for different reasons or on different grounds as those referred to by the arbitrator.[15] It would only be if the consideration of the evidence and issues before the arbitrator shows that the outcome arrived at by the

arbitrator cannot be sustained on any grounds, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[16]

[38] Against the above principles and test, I will now proceed to consider the applicant’s application to review and set aside the arbitration award of the third respondent.

Analysis

[39] In its review application, the applicant’s first cause of complaint is that the third respondent simply went far beyond what he was required to determine in this case, and in essence embarked upon his own mission in considering and then deciding the fairness of the dismissal of Sibiya. I must unfortunately agree that there is substance in this complaint by the applicant, for the reasons to follow.

[40] In arbitration proceedings before the CCMA or bargaining councils, there are no pleadings in the true sense of the word. There are only referral documents which hardly qualify as pleadings. It is in this context that the limitation of issues by an arbitrator in conjunction with the parties at the commencement of the arbitration proceedings, are of paramount importance. It determines what the arbitrator must decide, and it informs the parties what case(s) they have to present. Also, and in making this determination, the opening addresses by the parties are of importance. In Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others[17] the Court dealt with the limitation of issues for determination in an arbitration, by way of the opening addresses made by the parties. The Court referred to what each party in the arbitration had said in their opening addresses,[18] and then concluded:[19]

‘… in an arbitration such as the one that happened in this matter, the parties do not exchange, and, in this case, did not exchange,

pleadings that would enable each party to know what the other party's case is. In cases in which opening statements are made, they serve

to inform both the arbitrator and the other side what one's case is. Accordingly, the failure by the appellant's representative to announce that the third respondent's attorney's understanding of the appellant's case was wrong has, in all fairness, to be taken to mean that he was happy that the third respondent's attorney's understanding was correct.

It would be completely unfair to allow the appellant now to say that that understanding of its case by the third respondent's attorney was wrong and it should be allowed to deal with the matter on the basis that the charge of gross negligence existed separately on its own and did not relate to the conduct covered by the second charge. …’

[41] The above dicta in Fidelity Cash Management supra were applied in ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman No and Others[20], where the Court held:

‘… it is clear that both parties were entirely at idem as to what the disputes between them were and in fact defined such disputes in their respective opening addresses. The applicant then sought specifically to present its case based on such defined disputes. In my view, the first respondent was bound by this, and could only determine the dispute on this basis. This is not a case where the dispute was undetermined or undefined, and the evidence in the arbitration proceedings then established what the dispute really was. In this case, there were two parties, both represented, who sought specifically to place before the first respondent what their respective cases were, what the issues were, and what the first respondent was required to determine.

The effect of the events at the commencement of the arbitration, as specifically set out above, is similar to a pretrial agreement and has the same consequences. …’

[42] Applying the above principles in casu, it must be established what happened at the commencement of the arbitration before the third respondent. First, the applicant was called upon by the third respondent to make an opening address. The IR Manager of the applicant, Vincent Kunene (Kunene) gave the address, and referred to the background facts summarized earlier in this judgment. He then referred to the applicant’s policies on zero tolerance for the misconduct, and the fact that Sibiya had pleaded guilty to the charge in the disciplinary hearing. He also stated that the working environment was dangerous and that the applicant ‘… has been consistent in terms of the application of the rule …’. He concluded by stating this was dismissible misconduct.

[43] In response to the opening address by Kunene, the NUMSA representative, Vuyo Bikitsha (Bikitsha) stated that: ‘… basically for the applicant we are submitting that firstly the applicant, the penalty is inappropriate, it is not in accordance with Disciplinary Procedure, Disciplinary Code and Procedure …’ (sic). Bikitsha further stated that there was another employee who was found guilty of being over the legal limit for alcohol, but was not dismissed and given a final written warning, which is allowed by the disciplinary code. And finally, Bikitsha stated that there should have been two tests given to Sibiya and not just one test.

[44] Then, and in summarizing the case before him that he had to decide following these opening addresses, the third respondent firstly confirmed that the breathalyser results were not challenged, and then said:

‘… The main contention of the applicant is that one, the issue was too harsh. Two, it was inconsistently applied. He could have and he will accept a final written warning, because it was his first offence. And also, yes, to a certain amount of fact is that they believe the procedure was not followed with regard to the testing …’ (sic)

[45] The above then establishing the case to be dealt with at arbitration, it is clear that the third respondent only had to decide three issues. The first issue was that the sanction of dismissal was too harsh. The second issue is whether there was inconsistent application of discipline in this case. And finally, there was the ‘procedural’ issue of there being only one test in this case instead of two. The third respondent was clearly not called upon to decide whether Sibiya had committed the misconduct he had been charged with, or the veracity of the breathalyser test result, or the issue of procedural fairness.

[46] It must follow that several of the findings of the third respondent were simply not competent and resorted outside the ambit of what he was required to decide. Firstly, his finding of procedural unfairness is not competent and would be irregular, because this was not in dispute between the parties and not raised as an issue. In line with this reality, there was no case presented by NUMSA on procedural unfairness, nor was any of the applicant’s witnesses challenged on this. The third respondent’s finding that the dismissal of Sibiya was procedurally unfair is thus in any event without any proper factual foundation. What makes it worse is that the third respondent’s findings of procedural unfairness are bereft of any cogent reasoning why this was indeed the case. Therefore, the third respondent’s conclusion to the effect that the dismissal of Sibiya was procedurally unfair constitutes a gross and reviewable irregularity, and falls to be reviewed and set aside.

[47] This brings me to the reasoning of the third respondent on the issue of the so-called ‘glaring errors’ where it came to the recording of the breathalyser test result in the security report. It is clear from his award that this reasoning played a material part in the third respondent ultimately deciding that dismissal of Sibiya was not appropriate. The problem I have all this reasoning is that for all intents and purposes, it is entirely irrelevant, because it can only relate to the issue of the existence of the misconduct itself, which was never in issue. It follows that the third respondent’s finding on sanction is mainly motivated by irrelevant considerations. That renders it reviewable.

[48] Crystalised down to its core, what the third respondent is saying is because the applicant made these glaring errors, the misconduct is at least in doubt, and as such, Sibiya should not be dismissed. I am convinced that the third respondent became so fixated on what he considered to be errors that he lost sight of the actual case, for the following reasons. First, what he needed to rather consider was that the breathalyser test result was not an issue in dispute in the arbitration and as such established the existence of the misconduct. Secondly, Lebengu, who actually conducted the test and completed the report, testified that the test result was 0,059% and that he simply made a mistake in what he wrote on the report. It may be added that this testimony by Lebengu was never challenged under cross examination, resulting in the fact that it must be accepted.[21] Thirdly, the basis of the mistake was, as a matter of common sense, understandable. It is clear that Lebengu simply forgot to write one zero in writing the result down, thereby writing 0.59% instead of 0.059%. Someone with a blood alcohol content of 0.59% would likely be dead or at least entirely incapacitated. The third respondent made a complete mountain out of a molehill. And finally, the evidence was that Sibiya had been drinking, on his own admission, until 21h00 the previous evening, which makes the kind of result as reflected in this case for someone who reports for work at 06h00 the next day, quite likely.

[49] It also cannot be ignored, as the third respondent does, that Sibiya pleaded guilty to the charge in the disciplinary hearing. The charge, as set out above, specifically records that it concerns a breach of the disciplinary code with regard to the permissible alcohol legal limit of 0.05% on 3 December 2019. A proper guilty plea in a disciplinary hearing can serve as proof of the existence of misconduct in itself, provided certain safeguards are applied by the chairperson. This was recognized in Monare v SA Tourism and Others[22] where the Court applied the criminal law protections applicable to guilty pleas by accused in criminal proceedings, to guilty pleas in disciplinary hearings. In particular, the Court held:[23]

‘In the area of criminal law and procedure, where courts are constantly confronted with guilty pleas to serious criminal charges, special safeguards are provided that ensure that an accused person's utterances of a plea of guilty is in fact a proper plea of guilty and an unequivocal admission of guilt. For example, in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977, the presiding officer may have to question the accused person with reference to the alleged facts of the case in order to ascertain

whether he or she admits the allegations in the charge to which he or she has pleaded guilty. Furthermore, courts are required not only to be convinced that an accused admits an allegation in the charge, but that the accused

appreciates what that admission entails.

Even though the disciplinary enquiry is not a criminal trial, it has certain features akin to such a trial. In a disciplinary hearing, for example, there is a charge of misconduct to which an employee may either plead guilty or not guilty, which is similar to a plea to a criminal charge. Fairness and logic dictate that the same safeguards that apply in a criminal trial with regard to a plea of guilty should also apply in disciplinary hearings where the employee faces dismissal …’

[50] In casu, it was never in issue that the chairperson did not apply proper safeguards when accepting the guilty plea by Sibiya. After all,

procedural fairness was in reality not even in dispute. It was also never the case by Sibiya that he did not properly plead guilty, and he never disavowed his guilty plea. On his own admission, he was thus guilty of testing positive with a result of 0.059%. He must be held to this admission. As succinctly said in Mphaphuli v Ramotshela NO and Others[24]:

In my view, when the applicant tendered a plea of guilty at the commencement of the disciplinary enquiry it meant that there was no fact placed in issue and as such there was no further evidence necessary. …

The third respondent had no regard to any of this, but instead, for reasons only known to him, proceeded to negate misconduct that was never really in issue. All the third respondent had to look at was whether dismissal was justified and fair for this misconduct, and not seek to negate the misconduct itself.

[51] Ironically, and despite the three issues the third respondent was actually called upon to decide, the third respondent made no findings where it came to the issue of inconsistency in the conduct of discipline for the offence at stake in this case.[25] He also made no finding on the contention that two tests were required instead of one. Considering that these were two of core

issues identified at the commencement of the arbitration, it must follow, in the absence of any findings by the third respondent in this regard, that he found no substance in the same, and that these issues played no role in the conclusion he ultimately arrived at.[26]

[52] It must follow that the only issue that really needs to be considered is whether the sanction of dismissal was fair. The third respondent gave scant attention to this question, in line with the ordinary principles he was required to consider in this regard (this is discussed later in this judgment). His findings are to a large extent focussed on the so-called ‘glaring errors’ in recording the breathalyser test result, which was so important to him, even though he accepted that Sibiya was guilty as charged. It is not clear why these purported ‘glaring errors’ should mitigate against dismissal as a fair sanction, as it has

nothing to do with this enquiry. I can only assume that he third respondent had it in mind that if the applicant committed such

‘glaring errors’, then Sibiya should not be dismissed. In my view, such an approach is a complete misdirection on the part of the third respondent.

[53] The third respondent needed to decide the fairness of the sanction not on the basis what he would have considered fair if he was the employer of Sibiya, but rather on the basis of deciding whether what the applicant as employer did in dismissing Sibiya, was fair. In short, whilst the third respondent must not defer to the applicant as employer, he must not act as if he was the employer. Unfortunately, it would seem that this is exactly what the third respondent did, and he had no consideration of the question of whether the conduct of the applicant in deciding to dismiss Sibiya was fair. His determination appears to be squarely founded on a personal preference, which is an entirely unreasonable approach.

[54] In deciding whether an employer acted fairly in deciding to dismiss an employee, a variety of factors must be considered, as a whole.[27] These are, in sum, the following: (1) the importance of the rule that had been breached (seriousness of the misconduct); (2) the reason the employer imposed the sanction of dismissal; (3) The explanation presented by the employee for the misconduct; (4) the harm caused by the employee's conduct; (5) whether additional training and instruction may result in the employee not repeating the misconduct; (6) the service record of the employee; (7) the breakdown of the trust / employment relationship between the employer and employee; (8) the existence or not of dishonesty; (9) the possibility of progressive discipline; (10) the existence or not of remorse; (11) the job function of the employee; and (12) the employer’s disciplinary code and procedure.[28] Not all the factors are always relevant to a particular case, so only those that are relevant must be identified, and considered.[29] In general terms, what requires consideration by an arbitrator was articulated in Vodacom (Pty) Ltd v Byrne NO and Others[30] as follows:

‘… the determination of the fairness of a dismissal required a commissioner to form a value judgment, one constrained by the fact that fairness requires the commissioner to have regard to the interests of both the employer and the worker and to achieve a balanced and equitable assessment of the fairness of the sanction …’

[55] Turning first to considering the nature of the misconduct, there can be no doubt that it is very serious. Allowing any employee to report for work at a potentially dangerous working environment such as the business of the applicant is a recipe for disaster. It does not take much insight to appreciate the material adverse consequences to the applicant is there is some kind of industrial accident and it is discovered that an employee involved had alcohol in his or her system. This creates a danger not only to the individual employee, but also to fellow employees. It is the kind of risk an employer such as the applicant should not be expected to run. As to the position of Sibiya himself, it cannot even be suggested that he is some kind of office worker, working in an

administration block far removed from the factory. The undisputed evidence is that he works in the midst or production, and works in close proximity to moving machinery, a conveyer belt, and extremely hot metal. He also operates a machine. It is common sense that any impairment under such circumstance, especially caused by alcohol, is intolerable.

[56] The applicant led uncontested testimony in the arbitration that its zero tolerance approach to employees repotting for work whilst having alcohol in their system was for a substantial reason relating directly to very real safety concerns, considering the nature of the workplace and the duties of employees. It is thus not a case of zero tolerance in a vacuum for the sake of it. It is zero tolerance based on proper operational needs, and in particular, the safety of all employees. It was equally undisputed that Sibiya was fully aware of the policy / rule of the applicant in this regard. It has been consistently held in this Court that these kinds of violations justify dismissal of an employee, even for a first office.[31]

[57] It must follow, in my view, that the dismissal of Sibiya was fair and justified based on the above considerations alone, which established very serious and in effect inexcusable misconduct. No number of mitigating factors could and should save him. He knew the rules, and knew the consequences of violation. He had the option,

considering that he had been drinking to fairly late the previous evening, to rather make sure by way of a voluntary test before

reporting for work. In my view, however, he took his chances. For that action, he must the ultimate price. The third respondent was completely blind to all of this, being completely fixated on the irrelevant issue of ‘gross errors’

relating to the recording of the breathalyser test result. His award is therefore unsustainable on review.

[58] One relevant factor the third respondent did consider was that, according to him, the code of the applicant did not provide for dismissal for a first offence where it came to the charge against Sibiya. According to the third respondent, the code provided for a final written warning or unpaid suspension for a first office, and that dismissal was only justified for a second offence. The applicant’s IR manager, Lisa Engelbrecht (Engelbrecht) however specifically testified that the applicant, in the case of an employee that worked in an occupation such as Sibiya, would apply a zero tolerance approach and dismissal was prescribed even for a first office, as a result of the critical safety considerations. The third respondent considered this testimony, and

effectively rejected it, on the basis that if this was indeed the case, the code would have said so, and therefore it would seem the applicant was suggesting an error in its disciplinary code, which according to the third respondent did not fly.

[59] But having regard to the actual provisions of the Golden Rules, the code, and the accompanying alcohol policy, the third respondent simply got it completely wrong on the facts. He clearly had no regard at all the whole code and the provisions of the alcohol policy. In these regulatory documents, is it specifically recorded in so many words that where it comes to instances that may negatively impact on safety requirements, there is a zero tolerance approach. The penalty provisions as contained in the main body of the code dealing with what is called an ‘alcohol’ offence is made specifically subject to the alcohol policy. In the alcohol

policy, it is provided that dismissal is warranted for a first office where the particular position / occupation of an employee compromises safety if the employee works under the influence of alcohol. All of this considered, the testimony by Engelbrecht makes perfect sense, and is fully aligned with all the regulatory provisions, including the code. As IR manager in the applicant, Engelbrecht would obviously know the real position, and there was no evidence to contradict her view. The third respondent materially misconstrued the facts, sought to rely on a purported error in the code which did not exist, and irregularly and unreasonably negated the uncontroverted evidence of Engelbrecht. This is certainly reviewable conduct.

[60] It has to follow that the misconduct Sibiya had undoubtedly committed, considering the particular working environment, the position he occupied, and the clear regulatory provisions in the applicant that justifiably prescribed a zero tolerance approach for the misconduct of which Sibiya was well aware, was of the magnitude that it in itself rendered his dismissal to be justified and fair.

[61] But even if the other sanction principles are considered, it would still not change the ultimate outcome that the dismissal of Sibiya constituted a fair sanction. The importance of the rule in question is beyond contestation and is operationally justified. The highly prejudicial possible consequences in the case of non-compliance with the rule is patently clear, and there can be little doubt that any compromise would detrimentally compromise safety requirements in what is potentially a dangerous workplace. Other that an unproven suggestion by NUMSA and Sibiya that another employee in similar circumstances was not dismissed, the clear evidence was that the applicant had been consistently dismissing employees for this misconduct, even in the case of a first offence, where the nature of the employees’ occupation in the workplace would compromise safety. And finally, Sibiya could offer no explanation to somehow mitigate his misconduct. He knew he was drinking until relatively late the previous evening, and should have known better.

[62] It is true that Sibiya came to the disciplinary hearing and pleaded guilty to the charge, and suggested that this meant he showed remorse. Whilst this of course is a factor to consider, it is my view that in casu, it however rings rather hollow. Sibiya, in my view, knew that he had been drinking and played the odds where it came to reporting for work the next day with alcohol in his system. He was however confronted by security, but denied he had been drinking. He was then caught out on the random breathalyser. It meant that he only acknowledged wrongdoing when caught. This situation is exacerbated by the fact that he had a viable alternative option open to him. He could have asked to be tested, and if found positive, he would simply be sent home and lose his pay for the shift, but would not be disciplined.

[63] In sum, and where it comes to the third respondent’s determination that dismissal was an unfair sanction in this case, there exists a number of fundamental failures. The third respondent failed to have proper regard to the seriousness of the misconduct, and the justified zero tolerance approach adopted by the applicant for this misconduct in the case of employees employed in a position such the one occupied by Sibiya. He failed to have proper regard to the critical importance of unconditional compliance with the safety standards of the applicant, and how this was severely compromised by the misconduct of Sibiya. He misconstrued the evidence where it came to the provisions of the code. He became embroiled in irrelevant considerations that he was not even required to decide, so as to somehow negate the dismissal of Sibiya. He failed to consider the material risk of prejudice the applicant was exposed to. He did not consider that the applicant acted consistently in dismissing all the employees in such positions that similarly transgressed in the past. Overall considered, and if the third respondent had proper, reasonable and rational regard to all of these factors, the only reasonable conclusion he could have arrived at is that the dismissal of Sibiya was justified, and fair. It can hardly be better described than the following dictum in Solari v Nedbank Ltd and Others[32] where the Court said the following, specifically referring to conduct of a commissioner where it came to deciding if dismissal was an appropriate sanction:

‘… it is clear on the totality of the evidence before the commissioner that he did not properly consider all the evidence and therefore arrived at a conclusion that a reasonable decision maker could not reach then the award ought to be set aside. The same will apply when the commissioner makes certain inferences from the proven facts that are totally out of sync with those facts. The inference reached without a proper consideration of the proven facts would be an unreasonable decision or a decision which a reasonable decision maker could not reach …’

[64] For all the reasons as set out above, it is my view that the determination by the third respondent in his award to the effect that

that the dismissal of Sibiya was not an appropriate and fair sanction, is grossly irregular, and resorts well outside the bands of what may be considered to be a reasonable outcome.[33] As such, the award of the third respondent falls to be reviewed and set aside.

Conclusion

[65] Therefore, I conclude that the third respondent’s finding that the dismissal of Sibiya was substantively and procedurally unfair cannot be sustained, and falls to be reviewed and set aside. It is clear that the only reasonable outcome the third respondent could have arrived at, considering the evidence as a whole and the applicable principles of law, has to be that Sibiya earned his dismissal, which was a justified and fair sanction in the circumstances.

[66] Having reviewed and set aside the award of the third respondent, I see no reason to remit this matter back to the second respondent again for determination de novo before another arbitrator. As stated above, the factual matrix in this matter was straight forward, mostly undisputed and common cause, and all the evidence was properly before me in a record that was in all respects complete. There is therefore simply no need to go through the whole exercise of arbitration again. Exercising the powers I have under section 145(4) of the LRA,[34] I therefore consider it appropriate to finally determine this matter. I shall accordingly substitute the arbitration award of the third respondent with an award that the dismissal of Sibiya by the applicant was substantively and procedurally fair.

[67] As to costs, the matter was unopposed, and as such, the issue of costs does not arise.

[68] It is for all the reasons as set out above that I made the order as reflected in paragraph 6 of this judgment, supra.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate V Mndebele

Instructed by:

Wilken Inc Attorneys

For the First Respondent:

No appearance

[1] (2007) 28 ILJ 2405 (CC) at para 178. See also the judgment if Navsa J at para 79 where the learned Judge said: ‘… In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair.

[2] Act 66 of 1995 (as amended).

[3] The prescribed time limit is 6(six) weeks.

[4] This time limit is 60 days calculated from the date of the notice in terms of Rule 7A(5).

[5] 1962 (4) SA 531 (A) at 532C-E.

[6] See Moila v Shai No and Others (2007) 28 ILJ 1028 (LAC) at para 34; Colett v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1948 (LAC) at para 38.

[7] In Transport and General Workers Union and Others v Hiemstra NO and Another (1998) 19 ILJ 1598 (LC) at para 7 it was held: ‘… I would be unduly shortsighted to fail to acknowledge that it is a norm of South African society that during the period mid-December to early January the nation slouches to a near halt. This customary annual shutdown may not have excused the appropriate degree of expedition in a matter which was truly urgent but it can hardly be said that the nature of this matter was one in which it was inexcusable not to disturb our collective slumber …’. See also Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1528 (LC) at para 3.

[8] See clause 11.2.3 of the Practice Manual.

[9] The emphasis is found in the alcohol policy itself.

[10] Id at fn 1.

[11] Id at para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 96.

[12] See Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at paras 43.

[13] Id at para 41.

[14] (2013) 34 ILJ 2795 (SCA) at para 25. See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at para 14; Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC) at paras 15 – 17; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16.

[15] Fidelity Cash Management Service (supra) at para 102.

[16] See Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.

[17] (2008) 29 ILJ 964 (LAC).

[18] See paras 20 – 22 of the judgment.

[19] Id at para 23 – 24

[20] (2013) 34 ILJ 2347 (LC) at para 61 – 62. See also Tiger Brands Field Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others [2013] ZALCJHB 216 (13 August 2013) at para 71; Minister of Safety and Security v Mashego and Others (2003) 24 ILJ 1690 (LC) at para 21.

[21] See ABSA Brokers (Pty) Ltd v Moshoana NO and Others (2005) 26 ILJ 1652 (LAC) at para 39; Trio Glass t/a The Glass Group v Molapo NO and Others (2013) 34 ILJ 2662 (LC) at para 41; Glencore (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2018) 39 ILJ 2536 (LC) at para 19.

[22] (2016) 37 ILJ 394 (LAC).

[23] Id at paras 72 – 73.

[24] (2020) 41 ILJ 242 (LC) at para 36.

[25] The fact that the third respondent would make no findings against the applicant in this regard make sense, as inconsistency was never raised in the disciplinary hearing, and NUMSA and Sibiya never presented any evidence on the issue of inconsistency to enable any like for like comparison to be conducted or so that it could be assessed whether the applicant acted bona fide or not in dismissing one employee and not another – see SA Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd (1999) 20 ILJ 2302 (LAC) at para 29; Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2017) 38 ILJ 860 (LAC) at para 31; Grindrod Logistics (Pty) Ltd v SA Transport and Allied Workers Union on behalf of Kgwele and Others (2018) 39 ILJ 144 (LAC) at para 47; Botsane v Anglo Platinum Mine (Rustenburg Section) (2014) 35 ILJ 2406 (LAC) at para 39. Sibiya had the evidentiary burden to establish inconsistency (see Comed Health CC v National Bargaining Council for the Chemical Industry and Others (2012) 33 ILJ 623 (LC) at para 10; Banda v General Public Service Sectoral Bargaining Council and Others [2014] JOL 31486 (LC) at para 49) and simply did not discharge this burden. The high-water mark of the inconsistency case was a bald reference to one Bennet Khahla not being dismissed, despite the fact that Sibiya had no actual knowledge of and called no witness to substantiate how Khahla

transgressed, what transpired in his disciplinary hearing, and why he was not dismissed. There simply was no inconsistency case made out, on the facts.

[26] See Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008) 29 ILJ 2189 (LAC) at para 8.

[27] See Sidumo (supra) at para 78; Horn v Beesnaar NO and Others (2022) 43 ILJ 115 (LAC) at para 24.

[28] National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC) at para 82; Bridgestone SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2016) 37 ILJ 2277 (LAC) at paras 17 – 18; Woolworths (Pty) Ltd v SA Commercial Catering and Allied Workers Union and Others (2016) 37 ILJ 2831 (LAC) at para 14; Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC) at para 30; Eskom Holdings Ltd v Fipaza and Others (2013) 34 ILJ 549 (LAC) at para 54; Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council and Others (2011) 32 ILJ 1057 (LAC) at para 34; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others (2010) 31 ILJ 901 (LAC) at paras 37 – 38; Fidelity Cash Management (supra) at para 94.

[29] See for example Duncanmec (supra) at para 46.

[30] (2012) 33 ILJ 2705 (LC) at para 9. See also Wasteman Group v SA Municipal Workers Union and Others (2012) 33 ILJ 2054 (LAC) at 2057G-I.

[31] Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council and Others (2011) 32 ILJ 1057 (LAC) at para 35; Mphaphuli (supra) at para 42; Sasol Mining (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2359 (LC) at para 6; Harmony Gold Mining Co Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 912 (LC) at paras 24 – 26.

[32] (2014) 35 ILJ 3349 (LAC) at para 29.

[33] See Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC) at para 30.

[34] Section 145(4)(a) reads: ‘If the award is set aside, the Labour Court may – (a) determine the dispute in the manner it considers appropriate …’