Unitrans Fuel And Chemical (Pty) Ltd v Naidoo and Others (D197/04) [2009] ZALCD 11 (14 May 2009)
The Court found that the Commissioner had considered all material evidence, including the employee's conduct, the expert evidence on alcohol testing, and the circumstances under which the offence was committed. The Commissioner took into account the employee's personal circumstances, his belief that he was taking...
Source-derived case information.
- Citation
- [2009] ZALCD 11
- Parties
- Applicant: Unitrans Fuel And Chemical (Pty) Ltd; Respondent: N N Naidoo; Respondent: R Naidoo; Respondent: The National Bargaining Council for the Road Freight Industry
- Court
- Labour Court Durban
- Jurisdiction
- South Africa
- Case Number
- D197/04
- Procedural Posture
- Review Application / Judgment
- Outcome
- Application for review dismissed with costs.
- Judges
- Pillay D
- Legal Topics
- Disciplinary Sanction, Alcohol Influence, Review of Arbitration Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
Unitrans Fuel And Chemical (Pty) Ltd
Applicant
N N Naidoo
Respondent
R Naidoo
Respondent
The National Bargaining Council for the Road Freight Industry
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the employee was under the influence of alcohol at the time of testing.
- 2 Whether the Commissioner failed to consider relevant evidence regarding impairment and sanction.
- 3 Whether the sanction imposed was appropriate given the circumstances.
Ratio Decidendi
The Court found that the Commissioner had considered all material evidence, including the employee's conduct, the expert evidence on alcohol testing, and the circumstances under which the offence was committed. The Commissioner took into account the employee's personal circumstances, his belief that he was taking medication, his remorse, and the fact that the supervisor allowed him to drive after testing. The applicant's contention that the Commissioner ignored relevant evidence was unfounded. The fact that the Commissioner drew different inferences from the evidence does not render the award reviewable. Accordingly, the application for review was dismissed.
Court Disposition
Application for review dismissed with costs.
Orders
- The application for review is dismissed with costs.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO: D197/04
DATE:14 MAY 2008
NOT REPORTABLE
In the matter between
UNITRANS FUEL AND CHEMICAL (PTY) LTD APPLICANT
and
N N NAIDOO FIRST
RESPONDENT
R NAIDOO SECOND
RESPONDENT
THE NATIONAL BARGAINING COUNCIL
FOR THE ROAD FREIGHT INDUSTRY THIRD
RESPONDENT
JUDGMENT
14 May 2008
PILLAY D, J This is an application to review and set aside the award of the second respondent Commissioner. The record in the review is deficient in several respects. However, the Arbitrator has recorded the material evidence sufficiently to enable the Court to come to a final decision. Furthermore, the ground of review is limited to the sanction imposed on the first respondent employee.
The issue before the Commissioner was whether the employee was under the influence of alcohol and whether his blood alcohol count had exceeded the legal limit. The Commissioner found that the employee was not under the influence of alcohol. In coming to that conclusion the Commissioner took into account all the material evidence before him, including reports of the employee’s
conduct and demeanour at the time when he was tested[1].
Although his breath had a distinct smell of alcohol his eyes were watery, his speech normal, his stance steady and his gait sure. He appeared confused, frightened, but polite and co-operative. He submitted willingly to the test. The Commissioner also found that the employee had a blood alcohol level of 0,55, which an hour later fell to 0,45.
The applicant alleges that the Commissioner failed to take into account that a blood alcohol level of 0.55 or 0.45 impaired a driver’s
reaction time, even though it did not appear that he was under the influence of alcohol. That is the evidence the applicant
alleges the Commissioner ignored. Consequently he had failed to apply his mind to the evidence when imposing a sanction of a warning, valid for six months.
That a driver’s reaction times might be impaired was not the only consideration in all the circumstances of this case. The other circumstances which the Commissioner took into account include those set out at paragraph 8 of the award. They are the personal circumstances of the employee, his omission to appreciate that he was consuming alcohol (he believed that he was taking medication) and that he was remorseful when he tested positive for the alcohol.
The Commissioner also took into account the circumstances in which the offence was committed, and these circumstances are enumerated at paragraph 8.3 of the award. A particular fact that influenced the Commissioner was that the employee was not provided with comfortable sleeping facilities; that he consumed what he believed was medication to enable him to sleep; that the bottle containing the substance consumed did not reflect that it had alcohol, and the supervisor allowed the employee to drive the vehicle back to Durban after testing. That suggested that the relationship had not broken down.
The applicant is not correct in its submission that the Commissioner did not take into account the evidence of the so-called expert on alcohol testing. It is manifest from the award that the Commissioner did take into account all the material facts, including the evidence of Mr Hayes. That he drew a different conclusion or different inferences than those sought by the applicant does not render this award reviewable.
In the circumstances the application for review is dismissed with costs.
____________
Pillay D, J
Date: 8 October 2008
APPEARANCES
ON BEHALF OF APPLICANT : ADV R SEGGIE instructed by Tomlinson
Mnguni James
ON BEHALF OF RESPONDENTS : MR B PURDON- Brett Purdon Attorney
[1] Page 63 of the Pleadings Bundle