IN THE BARGAINING COUNCIL FOR THE CIVIL ENGINEERING INDUSTRY ( BCCEI ) HELD AT PORT ELIZABETH. In the arbitration between

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1 IN THE BARGAINING COUNCIL FOR THE CIVIL ENGINEERING INDUSTRY ( BCCEI ) HELD AT PORT ELIZABETH In the arbitration between KHOLISI MZIMKHULU APPLICANT AND BASIL READ LTD RESPONDENT A R B I T R A T I O N A W A R D CASE NUMBER: CCEI DATE AWARD SUBMITTED: 26 SEPTEMBER 2016 NAME OF COMMISSIONER: DANIE OOSTHUIZEN DETAILS OF PARTIES: Applicant K MZIMKHULU Telephone/ Mobile Telefax Respondent/ or representative: RINA GROBBELAAR Telephone/ Mobile Telefax Centre for Dispute Resolution 1 Kramer Road, Bedfordview, Johannesburg, 2007 P O Box 2699, Bedfordview, Johannesburg, 2008 Tel No. (011) /3 Fax No disputes@bccei.co.za [CCEI ] Page 1

2 Details of hearing and representation 1. This matter was referred for arbitration to the Bargaining Council for the Civil Engineering ( Bargaining Council ) in terms of section 191 (1) and 191(5) (a) of the Labour Relations Act 66 of 1995 (the LRA) as amended and was heard at the MEIBC offices in Port Elizabeth on 13 September The Applicant, Mr M Kholisi, appeared in person and represented himself. The Respondent, Basil Read Ltd, was represented by Ms R Grobbelaar (Human Resources Manager). 3. The proceedings were recorded digitally. The Respondent handed in a bundle of documents, marked Exhibit A, paginated from pages 1 to 52, to which there was no objection. Closing arguments were presented at this hearing. 4. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in terms of section 138 (7)(a) of the LRA, relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter. Issue to be decided 5. I am required to determine whether the dismissal of the Applicant was procedurally and substantively fair. Background 6. This dispute was referred to the Bargaining Council on 3 June 2016 and a certificate of outcome confirming that the dispute remains unresolved was issued on 28 July The Applicant (in LRA Form 7.11) claimed that he was unfairly dismissed for being tested positive for alcohol on 2 May The Applicant was employed as a Pump Minder and earned R per month at the time of his dismissal. 8. It was not in dispute that the Applicant was not supposed to work on the day he tested positive for alcohol, that he tested positively and that he had a clean disciplinary [CCEI ] Page 2

3 record. It was also not disputed that the Applicant knew the Respondent s rules on zero tolerance of alcohol and that he was subjected to various inductions on the policies. 9. The Applicant did not place procedural fairness in dispute. The only issue placed in dispute was the sanction of dismissal. The Applicant s argument was that the sanction was too harsh considering the circumstances. Survey of evidence Respondent s case The Respondent called one witness who testified under oath: 10. Mr Colin Woest (Supervisor) testified that on 2 May 2016 he called the Applicant just after 07:00 in the morning and asked him to come to work as the other Pump Minder did not report for duty. The Applicant did not inform him that he had been drinking the previous night. He only realised that the Applicant was under the influence of alcohol when he was phoned by the security guard at the entrance gate. If the Applicant told him that he was drinking the previous night he would not have allowed him to work as the Respondent has a zero tolerance policy on being under the influence of alcohol. 11. The driver who picked up the Applicant also did not inform him that the Applicant told him that he was drinking the previous night. If the Applicant did inform the driver he would have informed him as he had done previously when some employees did not look right. Applicant s case The Applicant testified under oath in support of his case. 12. Mr Colin Woest phoned him on the morning of 2 May 2016 and asked him to go to work. He told Mr Woest that he could not go to work as he had something to drink the previous night. Mr Woest said that he could hear that he was not drunk. He also told [CCEI ] Page 3

4 the driver who took him to work that he had something to drink the previous night but that he felt OK. 13. He also informed the staff at the entrance gate that he had something to drink and they said he looked fine. He blew the breathalyser and the result showed positive. He was then informed to go home and report for duty the next day. Analysis of evidence and argument 14. The Respondent bears the onus of proving on a balance of probabilities that the dismissal of the Applicant was both procedurally and substantively fair. 15. In respect of procedural fairness, the Code of Good Practice, Dismissal in the LRA provides that an enquiry does not need to be a formal enquiry and, in exceptional circumstances, the employer may dispense with pre-dismissal procedures. 16. Since the Applicant did not mount any credible challenge to the procedural aspects of his dismissal I can, in the absence of any glaring defect in the procedure utilized to effectuate his dismissal, safely conclude that the dismissal of the Applicant was procedurally fair. 17. What still needs to be established though, is whether the dismissal was substantively fair or not. 18. The first issue that has to be considered is whether or not the rule existed at the Respondent and whether or not such rule was reasonable. In this case, there was no dispute on the rules relating to the charge levelled against the Applicant. It was also not disputed that such rules were reasonable. 19. The second consideration is whether or not the Applicant had breached the rule. It is common cause, or not disputed, that the Applicant tested positive for being under the influence of alcohol on 2 May 2016 when he reported for duty. 20. The third consideration is whether or not the Respondent had acted consistently in the application of its disciplinary code. The Applicant did not challenge inconsistency. [CCEI ] Page 4

5 21. The next question that needs consideration is whether or not the sanction imposed was fair. The Applicant submitted that the sanction was too harsh in the circumstances as he was not supposed to work on the day in question and he was under the impression that the alcohol that he had consumed the previous day was out of his system as he felt fit to work. 22. The issue to be determined in my view is simple, was dismissal the appropriate sanction? In my decision to determine whether the dismissal was an appropriate sanction, I have to consider whether the Respondent has proven on a balance of probabilities that it was fair to dismiss the Applicant. 23. The Supreme Court of Appeal found that dismissal was unfair in the absence of evidence that the trust relationship was damaged see Edcon Ltd v Pillemer NO (191/08) 2009 ZASCA 135, delivered on 5 October Pillay came to the same conclusion in the matter of South African Revenue Services v CCMA and Others (unreported), Case No: JR984/08) (delivered on 23 October 2009) where, "the SCA held that in the absence of evidence showing damage in the trust relationship, the decision to dismiss was unfair". 24. I am not convinced that the trust relationship has been damaged to such an extent to justify a dismissal. No evidence was placed before me that the trust relationship had been damaged to such an extent that would make a continued employment relationship intolerable. The Applicant was open and honest and never denied that he had been drinking the previous night. In mitigation, the Applicant did not know that his services would be required the next day. When he was called by his supervisor he immediately agreed to report for duty when his fellow employee failed to do so. The Applicant also had a clean disciplinary record. 25. Mr Woest testified that his driver had previously informed him if other employees were not looking right. If the Applicant was drunk or not in a position to work surely the driver would have informed Mr Woest accordingly. I therefore accept the Applicant s explanation that he agreed to work as he did not realize that the alcohol was still in his system. This in confirmed by the Chairman of the disciplinary hearing on page 22 item 9.2 of the bundle of documents. In my view an alternative sanction would have been more appropriate to change the behavior of the Applicant in view of the circumstances in this case. [CCEI ] Page 5

6 26. In light hereof my conclusion must be that the sanction of dismissal was not appropriate and too harsh in the circumstances. It was not a reasonable sanction although the Applicant should not have agreed to work knowing that he had consumed alcohol the previous night although in my view the employment relationship can be restored. 27. I respectfully and expressly reflect the sentiments of the Constitutional Court in Sedumo v Rustenburg Platinum Mines Ltd 2008 (2) BCLR 158 (CC) at (75) albeit in a misconduct matter, where Navsa AJ had this to say: The CCMA correctly submitted their decision to dismiss belongs to the Employer but the determination of its fairness does not. Ultimately, the Commissioner s sense of fairness must prevail and not the employer s view In terms of Schedule 8, Code of Good Practice: Dismissal of the Labour Relations Act, the purpose of discipline should be to correct Employees behavior through a system of graduated disciplinary measures such as counselling and warnings. 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. 29. Against the aforementioned background, I find that the dismissal of the Applicant was substantively unfair in that the sanction of dismissal was too harsh in the circumstances. 30. The Applicant sought an order of re-instatement. No evidence was placed before me to suggest that this would be an inappropriate remedy in the event of a finding that dismissal was substantively unfair. Hence, I am required in terms of section 193 of the Act to order the re-instatement of the Applicant. The Applicant, however, was not before me with clean hands as captured above under paragraph 26. Therefore, the Respondent is not required to pay him back-pay for the period that he was without employment. [CCEI ] Page 6

7 Award 31. In the circumstances I make the following award: 32. The dismissal of the Applicant, Mr Mzimkhulu Kholisi, was substantively unfair and the Respondent, Basil Read Ltd, is ordered to re-instate the Applicant, on the same terms and conditions applicable on the date of his dismissal i.e. 11 May The Applicant is required to present himself for duty on 3 October For the purposes of re-instatement the Respondent is not required to pay the Applicant any back-pay. SIGNED AT PORT ELIZABETH ON THIS 26TH DAY OF SEPTEMBER Danie Oosthuizen BCCEI Commissioner [CCEI ] Page 7