Hearing and Representation

HEARING AND REPRESENTATION

1I satisfied myself that the …………..had jurisdiction to hear this matter.

2The hearings were conducted at the …………Pinetown, on 4 May 2016, 26 October 2016, 13 February 2017 and 15 May 2017. The applicant was represented by Mr ……….. (………..official). The respondent was represented by Ms ……… (senior HR officer) on 4 May 2016 and by Mr ………….(IR manager) thereafter. Having regard to the experience of the representatives, the proceedings were conducted largely in an inquisitorial manner; in English; recorded; and interpreted in isiZulu.

3The parties handed in their respective bundles of documents on 4 May 2016. Most of the applicant’s documents were already incorporated in the respondent’s bundle. They were added to the respondent’s bundle which was then used as the common bundle by consent. The applicant questioned pages 23 to 35 of the respondent’s bundle. The remainder of the documents were accepted by both parties as being authentic and correct.

4The parties handed in further documents on 13 February 2017 as follows:

a.Respondent: An “induction presentation” which was said to have been used during an induction session. The applicant indicated that he did not recall having seen this presentation;

b.Respondent: A “contractor’s removal from site” document. The applicant accepted this document as being authentic;

c.Applicant: a document from the Toyota disciplinary code which showed that the sanction imposed for being in “possession or being under the influence of intoxicating alcohol / drugs whilst on Company premises” was a final written warning for the first offence; and dismissal for the second offence. This document was accepted by the respondent as being authentic.

5With the consent of the parties a pre-arb was conducted. A minute thereof was distributed to both parties on 26 October 2016. After being approved by the parties on 13 February 2017, it was read into the record with minor amendments. The parties were advised that they must keep the minute handy and ensure that their witnesses deal with the disputed issues.

6An article written by Prof J Grogan and published in the December 2015 edition of Employment Law“Zero tolerance – No “no go zone” for commissioners” was distributed to both parties on 26 October 2016 (ie before any witness was called).

7LRA s 138 requires arbitrations to be concluded fairly and quickly. This arbitration was not concluded quickly due to the numerous postponements that were applied for by both parties. The prejudice to the applicant is regrettable having regard to the relief that has been afforded to him.

8At the commencement of each new hearing day the parties were advised as follows:“Witnesses will be subjected to cross-examination. The purpose of cross-examination is, to test the credibility and reliability of evidence, and to show that your version is more probable than that of the other side. It is important to bear 3 things in mind when cross-examining – You must put your version to the opposing witness; If an opposing witness has left out an important fact then that should be put to the witness; If you consider that any evidence of the witness to be false or incorrect then that should also be put to the witness. The purpose of all this is to give the opposing witness an opportunity of commenting on your version. It is very important to contest evidence that you disagree with because evidence that is left uncontested is likely to be accepted as being true. An adverse inference may be drawn if you do not put your version or put a new version ie a version that was not part and parcel of your case previously.”

ISSUE

9Whether the applicant was unfairly dismissed. He sought reinstatement with back-pay. The applicant also claimed pay for a week, and 4 weeks of leave pay but he did not lead any evidence on this issue. No further reference will accordingly be made these claims.

BACKGROUND

10The applicant is …………………….(male age 56 years), driver (code 08). He commenced full-time employment with the respondent on 1 March 2012 in terms of a written contract of employment. He was dismissed on 2 September 2015. He earned R1080 per week for working a 5 day / 45 hour week. He remains unemployed despite making attempts at finding alternative employment. The applicant has not earned anything from any type of casual employment. As breadwinner the applicant had 5 dependants (1 adult and 4 children). His highest standard of education is Gr 11.

11The respondent is …………………(PTY) LTD (formerly …………..(Pty) Ltd), a logistics service provider. It employs approximately 320 persons in KZN and 800 nationally at various sites. The relevant site for purposes of this case is the ………site at Prospecton, Durban: the respondent provided yard-management services to ………..(a large motor-manufacturer) at the latter’s premises.

12The applicant was placed on paid suspension on 24 August 2015. He was given a notice to attend a disciplinary hearing on 26 August 2015. It contained the following charge: “Misconduct: Under the influence of alcohol / reporting to duty with alcohol in your system, in that on the 24th of August 2015 after being subjected to the company’s breathalyser procedures you were found to be in direct contravention of the Company’s Zero Tolerance Policy as you tested positive for alcohol.”

13A disciplinary hearing was held on 28 August 2015. The applicant was represented by a shop-steward. He pleaded notguilty and gave evidence in support of his case. He was found guilty and dismissed. The respondent does not maintain an appeal procedure. The applicant referred an alleged unfair dismissal dispute on 25 September 2015 to the DRC. The matter was set down for conciliation on 14 October 2015 but remained unresolved. Hence the referral to arbitration.

14The applicant indicated that he would not be raising any procedural issues.

15The applicant’s closing statement was oral, while the respondent’s was written.

SURVEY & ANALYSIS OF EVIDENCE

16The respondent called the following witnesses in support of its case: ………… (senior supervisor of over 7 years of experience); …………….(senior HR officer with over 10 years of experience in the HR field and employed by the respondent for 6 years); …………..(regional operations manager in KZN for 6 years). Only the applicant gave evidence in support of his case.

17The following was either agreed to, common cause, undisputed or conceded in the pre-arb or the arbitration proper:

Contractual arrangement between ………..and the respondent

a.The relationship between the parties is regulated by a contract and a service level agreement (SLA) which is reviewed on a regular basis;

b.Vehicles are constantly being moved into, around and out of the site;

c.The respondent employs drivers to perform duties at the site. Access to the site is controlled by ……….personnel;

d.The SLA is monitored constantly by ………..and violations brought to the attention of the respondent. Violations that are not addressed can jeopardise the contract or its renewal. An example of a violation is where one of the respondent’s drivers reports at the site while under the influence of alcohol;

e.Any employeefound by ………….personnel to have alcohol in his body is banned from the site. Such employee’s employment is then terminated by the respondent for operational reasons.

The difficulties encountered by the respondent in the period up to 2012-13

f.During this period the respondent experienced serious difficulties with a number of its drivers arriving at the site while under the influence of alcohol or drugs. It was issued with a red-card by …………during a review. In other words it had 3 months to rectify the problem failing which its contract would be cancelled.

Protection of ……….vehicles

g.The new vehicles that are entrusted to the respondent at the site are valued at between R500000 and R2.2m each. The respondent takes all steps possible to ensure that these vehicles are given the necessary care and attention by its employees. It is self-evident that an employee whose faculties are impaired by alcohol will cause harm and damage to persons and property and thereby jeopardise the contract between ……….and the respondent.

The solution devised by the respondent as a result of the red-card

h.The respondent devised the zero-tolerance policy (ZTP) and established the alcohol testing station;

i.The rule that was breached in this case is contained in the contract of employment in clause 17: “Intoxicants. The employee hereby acknowledges that it is specifically forbidden for employees to report for duty under the influence of alcohol or chemical substances, to partake of or be in possession during working hours. The employee agrees to submit to an alcohol test at any time during working hours or on the employer’s premises, should the employer call upon him/her to do so”;

j.The ZTP, also contractually binding on the applicant provides as follows: “Alcohol and illegal substances testing, searching and rehabilitation policy & procedure. Purpose. The Company adopts a Zero Tolerance approach to alcohol and illegal substance abuse, usage, possession, selling or supplying of any such substance on the Company or its client’s sites. This is to ensure that highest levels of safety, caution and awareness and to reduce the risk of harm and to maintain a safe and productive as well as a drug and alcohol free environment”;

k.The disciplinary code (DC), also contractually binding on the applicant, provides for the offence of being “under the influence of alcohol or intoxicating drugs at work, or reporting for duty in such a state”. It prescribes dismissal for the first offence.

The establishment of the alcohol and drug testing station in 2012-13

l.The respondent established an alcohol testing station 10m away from the entrance to the site in 2012-13. It required ALL its drivers to compulsorily subject themselves to alcohol testing before entering the site. ………..also maintains a testing station at the entrance to the site, but those tests are done only on a random basis;

m.All employees who enter the site between 6-7am (for day-shift) and 7-8pm (for night-shift) are routinely tested for alcohol. The equipment used is the “Alcotester” and trained personnel administer the tests. The system is designed such that potential offenders are apprehended before they enter the site.

Health and safety considerations at the site

n.Having regard to the nature of the business, the risk of accidents is high. The respondent therefore takes its responsibilities towards the health and safety of its employees seriously. Itconducts regular sessions where its employees are trained on the ZTP, the DC and other health and safety related issues. Attendance at these sessions is compulsory and the applicant attended all sessions during his employment.

Toyota disciplinary code

o.………….also employs its own drivers – who drive the new vehicles from the factory to the site. For the same offence, ………….’s own disciplinary code provides for a final written warning for the first offence and dismissal for the second transgression.

Effectiveness of the testing station

p.Since 2012-13 no employee of the respondent has been found by ………to be under the influence or alcohol or drugs;

q.Since 2012-13, anyone found to be reporting for work under the influence, as shown by a test, is sent home, subjected to discipline, and dismissed. There have been 14 such cases;

r.Since 2012-13 there have been incidents where vehicles were damaged. But none of those incidents could be attributed to the intoxication of a driver.

The applicant’s misconduct on 24 August 2015 and his disciplinary record

s.The applicant was aware that dismissal is the prescribed sanction for the misconduct;

t.The applicant had consulted with a doctor on Saturday 22 August 2015 for influenza. The doctor had given him tablets and a cough mixture;

u.The applicant had consumed 2 quarts of Castle Lager beer on the evening of 23 August 2015;

v.The applicant tested positive for alcohol on 24 August 2015 when he reported for work: the “Alcotester” reading at 06h19 was 0.17, while the reading at 06h50 was 0.14;

w.The applicant had taken the prescribed medication on the morning of 24 August 2015. However he was not aware that it contained alcohol until his wife asked him to check a few days after he was suspended;

x.On 27 August 2015 the applicant consulted with the doctorto ascertain whether the cough mixture contained alcohol, and the doctor confirmed that it did. He issued a note in this regard;

y.The applicant had not performed any driving duties for the respondent on 24 August 2015;

z.The applicant had not caused any harm, damage or loss to the respondent;

aa.The applicant had a clean disciplinary record for the duration of his employment;

bb.The applicant had long service.

18The following observations, based on the above facts, have a bearing on the findings that I intend making on the disputed issues:

a.What is the rule that has been violated? It is the rule against arriving at work while under the influence or having alcohol in your body.

b.What is the mischief or pressing operational need for the rule? These are:

1. To safeguard the health and safety of all persons on the site;
2. To prevent vehicles from being damaged by persons whose faculties may be impaired by alcohol;
3. To avoid being red-carded by …………and thereby jeopardising the contract.

c.Has the solution – the alcohol testing station – beenan effective measure? The testing station has been a very effective solution: since its inception no employeewho is under the influence has entered the site. This means that the possibility of jeopardy or prejudice as a result of any alcohol related offence has been reduced to zero.

d.Has any harm or damage been occasioned by anyone who is under the influence of alcohol? Since the establishment of the testing station no harm or damage has been caused that can be attributed to an employee being under the influence of alcohol.

19The following disputed issues were identified during the pre-arb. I find thereon, on the probabilities, as follows:

a.Whether the applicant displayed any sign of drunkenness when he reported for work on 24 August 2015: The “checklist for assessing intoxication” (p2 of the respondent’s bundle) indicates that the applicant had alcohol on his body and that his speech was slurred. When cross-examined the Naidoo (the author of the document) stated that the applicant did not look intoxicated. The applicant for his part disputed that he manifested any sign of intoxication. I accordingly answer this question in the negative.

b.Whether the applicant was guilty of the offence: The applicant accepted as authentic and correct the report that showed the levels of alcohol in his body. He also signed it. I accordingly answer this question in the affirmative.

c.Whether the alleged misconduct is serious: This offence is always serious. But the gravity of the offence must be seen in the context of the solution that the respondent has devised: it has succeeded in neutralising the normal consequences that ensue from such misconduct, ie harm and damage to persons and property. It has done that by devising the fail-safe compulsory testing of all employees who enter the site. As such there can be no opportunity for an employee who is under the influence from causing harm or damage to either the respondent or Toyota property.

d.Whether dismissal is a fair and appropriate sanction and whether progressive or corrective discipline would have been fair: I find dismissal to be an unfair and inappropriate sanction for the following reasons:

1. Para 3(4) of the Code of Good Practice: Dismissal states as follows: “Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of such serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to property of the employer, wilful endangering of the safety of other, physical assault on the employer, a fellow employee, client or customer and gross insubordination;”
2. I cannot find that the misconduct in this case, having regard to the measures implemented by the respondent, made the employment between the parties intolerable;
3. It is not clear to me how dismissing an employee adds to the effectiveness of the measures it has devised to deal with the mischief;
4. Guidance can be obtained from the DC of Toyota which imposes a final written warning for the first offence. This is in keeping with para 3(2) of the Code which provides that “The courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them. Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings;”
5. Once corrective discipline has been attempted and found not to work in any particular case, the respondent always retains the right to impose the ultimate sanction of dismissal. But to brandish the axe in the first instance is harsh and inappropriate;
6. Toyota had no knowledge that the applicant had tested positive;
7. It can be safelyassumed that anyone who is tested positive and sent home will not be paid for that day. That in itself is a sanction. When an employee goes without pay a few times he or she will realise that reporting for work under the influence disadvantages his or her pay-packet and hopefully thereby correct his or her conduct;
8. When everything is said and done, the purpose of sanction is to redress the harm that any misconduct has occasioned an employer, and deter like-minded persons. I cannot find that dismissing the applicant in the circumstances of this case serves those purposes
9. The sanction for any offence must be proportionate to the harm, damage, loss or prejudice that an employer has suffered or may suffer. The sanction of dismissal is disproportionate to the zero harm, damage, loss or prejudice that has occurred in this case.

e.Whether the following aggravating factors existed in this case: the respondent has a zero-tolerance policy in place; that it is required to have a ZTP by the OHS Act; that it had been “red-carded” by …………in the past and that its contract could have been terminated: The respondent has not attempted this, but it will find that having a ZTP is not incompatible with progressive or corrective discipline. The respondent has commendably created a system that has effectively rooted out the problem. It is not clear how dismissing an employee for the offence helps the respondent or anyone else. Having regard to the findings already made, it can be accepted that the respondent will never again be red-carded by ………..for any alcohol related offence. In the circumstances I cannot find any aggravating factor.