NUMSA obo Ezekiel Naidoo v Commission for Conciliation Mediation and Arbitration and Others (1086/17) [2022] ZALC 7 (4 April 2022)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Labour Court South Africa: Labour Court You are here: SAFLII >> Databases >> South Africa: Labour Court >> 2022 >> [2022] ZALC 7 | Noteup | LawCite sino index ## NUMSA obo Ezekiel Naidoo v Commission for Conciliation Mediation and Arbitration and Others (1086/17) [2022] ZALC 7 (4 April 2022) NUMSA obo Ezekiel Naidoo v Commission for Conciliation Mediation and Arbitration and Others (1086/17) [2022] ZALC 7 (4 April 2022) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALC/Data/2022_7.html sino date 4 April 2022 IN THE LABOUR COURT OF SOUTH AFRICA CASE NO: 1086/17 In the matter between: NUMSA obo EZEKIEL NAIDOO Applicant and COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent CHARLES OAKES N.O.                                                                Second Respondent ALUMINIUM SA t/a HILLSIDE ALUMINIUM Third Respondent Heard:   24 November 2021 Delivered : Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time of the hand-down is deemed to be 10h00 on 4 April 2022. JUDGMENT HIRALALL AJ Introduction [1] This is an application in terms of section 145 of the Labour Relations Act [1] (“the Act”) for the review and/or setting aside of the award of the second respondent (“the arbitrator”) under case number MEKN6212, dated 25 May 2017 in the arbitration proceedings between the applicant and the third respondent. The application is opposed by the third respondent. Factual Background [2] The applicant employee was employed by the third respondent as a crane operator in a department known as the carbon department. He was tested for alcohol when he arrived at work on 22 April 2012 and found to be over the company's alcohol limit of 0.00%. He was charged with the offence of testing positive for alcohol during mandatory testing. He attended a disciplinary inquiry and was dismissed. Following his dismissal, his case was arbitrated by the 2nd respondent (the arbitrator) under the auspices of the CCMA. His dismissal was found to be substantively fair. It is this award which the applicant seeks to review and set aside. [3] According to the third respondent, testing positive for alcohol in the workplace was a dismissible offence. This meant that any employee found to have a blood alcohol content greater than 0.00% would face dismissal. The third respondent viewed the use of alcohol or any mind-altering drugs in a very serious light because of the nature of its operations. [4] The workplace was described as having areas with carcinogenic coal dust and fumes requiring the use of respirators to prevent inhalation, high voltage electricity, industrial baking furnaces with temperatures of up to 1500 degrees Celsius, heavy moving machinery and molten liquid steel. Cranes were used to maneuver one-ton anodes and place them in the baking furnace, and good hand to eye co-ordination was required to be able to judge the depth from high up. Thereafter, the anodes were joined with rods using molten steel at 1500 degrees Celsius. There were also moving conveyors in the form of metal chains in this area which made it very dangerous. One had to be in a sober state to work in these areas as they all had inherent risks. There were significant dangers to other personnel working below the crane and for this reason employees were not allowed to present themselves at work under the influence of alcohol or mind-altering drugs. [5] According to the third respondent’s witnesses, 1. The company has in place an Alcohol and Drugs Testing Process document which all employees are inducted on at commencement of employment. This policy provided for random or unannounced testing, voluntary testing and mandatory testing based on risk. 2. Alcohol testing in the company was done randomly. In other words, every employee was not tested upon his arrival at the entrance gate. On account of the testing being performed randomly, the risks were high that an employee could land up working inside the plant whilst under the influence of alcohol. The onus was therefor on the employee to submit to voluntary testing or to disclose if he had consumed alcohol as by the time random testing was done inside the premises the employee would have already entered the plant. If the employee then tested positive for alcohol in a random test he would be dismissed because it would mean that the employee was being dishonest knowing that his results would be positive but nonetheless entering the site. 3. If the employee declared that he was taking medication, and he tested positive for alcohol, he would be sent home and not allowed to operate any equipment. In terms of clause 5.2, the authorized drug and alcohol testing officer would determine whether or not the person being tested was taking any medication and if so he would record the name of the medication, the dosage, frequency, and the time the medication was last taken on the form MGE0072. The policy provided a list of medications that would give a positive result for OPI. 4. The policy provided for the person being tested to have a fellow employee, or a union representative present for the confirmatory test. It was the employee’s responsibility to make this arrangement and an internal telephone would be made available for this purpose. Where an employee had been prescribed medication by a medical doctor, they were required to seek advice from the medical practitioner regarding the possible influence of the medical condition and medication on their performance at the workplace. This must include among other things, the effect on alertness, the ability to concentrate, the ability to operate machinery, whether the medication leads to drowsiness. 5. According to the policy, the confirmatory test would be conducted in the presence of the employee’s supervisor. 6. A third test was not required but it was done to ensure that it was safe for the employee to go back home. 7. The third respondent’s previous policy of random testing was based on an expectation of voluntary testing, that is if the employee was honest that he had been consuming alcohol he would go and have himself tested to see whether he was positive or negative before entering the plant. The policy placed the onus on the employee to be trustworthy and therefore the sanction was very harsh if a person was shown to have entered the plant where they positive test for alcohol. The sanction for a first offence was dismissal. If they submitted to voluntary testing and tested positive there would be no disciplinary consequences. The new policy required that everyone who entered, whether they were employees, visitors or contractors, was tested for alcohol. It stated that: a. ‘ Non-negative is taken as alcohol, the following detection levels are deemed positive. Employees, contractors and visitors are not allowed to enter the premises if they are non-negative for alcohol and/ or other drugs, a blood alcohol level which exceeds 0.002.’. That was why the sanction changed from dismissal on the first offense to a final written warning. This was because the risk to the company was reduced because nobody could enter the plant with any alcohol in their blood. 8. Although the limit was indicated as 0.002, the practice was that you would have to be 0.00% before entering the plant . The change in the policy came about after lengthy discussions with the unions and management, and particularly with the unions where they requested the company to review and evaluate the policy to ensure that the employees had a chance and at the same time to mitigate the risks to the company. The applicant trade union, NUMSA, supported the introduction of the new policy. There were other awards in alcohol related matters where the change in the policy was not seen as inconsistency in the application of the rule. [6] The third respondent’s Alcohol and Drug Policy, the purpose of which is to define the principles applicable to persons who use, process, trade, test positive for, or are under the influence of alcohol and/ or drugs when entering or exiting the company premises or when conducting company related activities off site. Clause 5.8 thereof provides as follows: ‘ Medication If an employee/ contractor is taking medication, it is their responsibility to declare this before taking a test. The list of medications as well as the volume/ number of tablets and approximate time taken must be documented on FMGE 0072. Where an employee/contractor has been prescribed medication by a medical practitioner they must seek advice from the medical practitioner regarding the possible influence of their medical condition and medication on the performance in the workplace. · This must include inter alia the effect on alertness, ability to concentrate, ability to operate machinery, whether medication may lead to drowsiness, or other at risk side effects. · It is the employee/ contractor’s responsibility to convey this information to their line manager before commencing work. A decision regarding the employee/ contractor’s ability to work safely will be taken by the line manager in consultation with the Occupational Health or Medical Practitioner.’ [7] The third respondent’s Alcohol and Drug Testing Process document, the purpose of which was to provide a procedure for conducting alcohol and/ or drug tests provided a list of medication at clause 9.1 which gave a positive result on the OPI test: ‘ 9.1 Medication giving positive result for OPI Medication giving a positive result on the OPI test is generally analgesic (painkiller). Ordinary painkillers such as Aspirin, Paracetemol or Brufen (e.g. Compral, Anadin, Grandpa’s, Disprin, Nurofen) do not give a positive result. However, Nurofen plus, Disprin plus, etc contain Codeine and will cause drowsiness and give a positive result. … 9.3 Traditional medicine There have been reported incidents of traditional medicine containing dagga, and other drugs. Since there is no legislation regulating the supply or reporting of ingredients in traditional medicine, users must exercise extreme caution to avoid exposing themselves to the effect of prohibited substances. Note that cannabis can remain in the body and cause an adverse effect on performance for up to five weeks.’ [8] Mr Majola, a specialist security officer, who performed the tests on the employee confirmed the testing procedures and testified that he performed the test on the employee in accordance with the prescribed procedures. He said that there was no reason why he would not have recorded that the employee said that he was taking medication if he had said so. He stated as follows in relation to random testing: ‘ … Now, not all employees were tested in the time that the applicant was there, because the testing process relied on a random sampling process. So, you can imagine that there were instances - there could have been or there is a probability that an employee who was not tested on a random sampling test could be inside the plant under the influence. So that is why then the onus was on the employee to be honest with the procedures. Now, if the employee could be found by this process of random testing that he was in a state - or tested positive, then he would be dismissed, because remember the testing happens as you try to enter the plant, so which means it was taken as being dishonest, that knowing that your results would be positive but you are entering the site, then if you are tested you will be dismissed. Remember, if you are not tested, which means you go through to the plant and then work under these high risks.’ [9] Dr Chandika, employed by the third respondent as the occupational Medical Practitioner, testified in relation to the Schweden Bitter which the employee said he had consumed. The bottle indicated that it contained 43% alcohol. According to Dr Chandika, the volume of alcohol in the Schweden Bitter preparation approximated to that contained in a standard bottle of whiskey, brandy or even white spirits that is commercially available. It was highly improbable that the volume which the employee said he consumed would have resulted in the concentrations found in the alcohol test. The concentration of alcohol in a single of spirits that is consumed within an hour of testing would more likely approximate to the results which he found. As alcohol is metabolised in the body in a certain way, it was more likely that this reflected alcohol that had been consumed hours before. Approximately 25 mls of spirits needs to be consumed, that is 25 mls of a 43% alcohol must be consumed by the average person who weighs around 80 kg to approximate to the result that was found. Approximately 25 mls of a 43% spirits has to be consumed to give you a result of 0.02 which was close to 0.018. In other words, if a person drank 5 mls they would only show up with a result of 0.004 which was 1/5 of the calculation. The Schweden Bitter bottle directed a dosage of 5 mls up to four times a day and the employee stated that he had consumed approximately 5 mls. The employee would have had to consume five times that amount to obtain the reading that was actually obtained which was why his version was improbable. The employee had at no stage previously disclosed to him that he was taking this medication. He said that if this bottle had been declared to him he would not have recommended that it be taken prior to arriving at work as it would have been a breach of the company policy. [10] According to the employee, Ezekiel Naidoo, the third respondent had in place at the time of his employment a system of testing which provided for daily mandatory testing for every employee who entered the third respondent's premises, a random testing where the employee could be selected for random testing when he swiped his card at the turnstile, and a voluntary testing where an employee could have himself tested if he suspected that there was alcohol in his blood. He did not undertake the voluntary testing since he did not believe that he had alcohol in his blood. He tested positive for alcohol in the mandatory first test, and was required to go to the clinic for the second test. The results of the first and second tests where 0.018 and 0.010 respectively. He requested a third test which was because he was going to drive home himself. This was10 minutes after the second test. The result for this test was 0.00. The employee stated that he had consumed alcohol the previous night until 12pm but none on the day in question which was why he did not submit to voluntary testing. He had gone home at about 1 or 2 am. He consumed the herbal medicine before going into work so that it would assist him with a back pain and his kidneys since he was working long hours on the crane. He believed that it was perhaps his previous night's alcohol that could have raised the alcohol in his blood after his consumption of the herbal medication. He took this medication or supplement while he was still at home just before he drove to work. He been using the medication since 18 April. He believed that he should have been allowed to work after he tested 0.00 for alcohol. He believed that the sanction of dismissal was harsh because he was not under the influence of alcohol at the time and was ready to take on his shift. He believed that the policy of zero alcohol in the blood was unreasonable because it did not give employees a chance at all, and there was no policy which said that one could not consume alcohol after hours at all. [11] The applicant’s grounds of review are detailed inter alia as follows: 1. The second respondent dismissed the applicant’s case without properly applying his mind to material evidence which justified a different outcome. 2. The second respondent failed to apply his mind properly to material facts and documents before him when he found the third respondent had a rule completely banning employees reporting to work with alcohol in their body system. The second respondent failed to appreciate that the third respondent had mechanisms in place preventing employees with alcohol in their bloodstream from entering the working area. The employees were not banned from reporting to work with alcohol but were not allowed in the working area which is beyond the security checking area. This was so because employees who voluntarily tested positive to alcohol were afforded a grace period to wait until alcohol levels in their bloodstreams was 0.00%. This could not be so if employees were completely banned from reporting for work with alcohol in their bloodstreams. The second respondent therefore committed gross irregularity and or exceeded his powers when making this finding. 3. The second respondent further committed gross irregularity in finding that the applicant acted irresponsibly in not voluntarily testing prior to entering the workplace. The second respondent fails to appreciate that the testing area is at the security checking area which is where voluntary testing could have taken place which was also the place where the applicant was tested. The applicant did not enter the workplace. The second respondent further failed to appreciate the evidence of the applicant that he did not suspect that he had any alcohol in the bloodstream which could have triggered voluntary testing. 4. The second respondent committed gross irregularity and or failed to apply his mind to material evidence when he found that the rule was appropriate and in line with testing procedures available especially in the absence of mandatory testing procedures at the time. The second respondent fails to appreciate the evidence that mandatory testing was in place and in fact the applicant tested positive to alcohol during mandatory testing. The policy of the employer included in the bundle of documents clearly showed that mandatory testing was in place. At the time of the testing of the applicant there were mandatory testing, random testing as well as voluntary testing. Mandatory testing was in place to mitigate the risk of employees entering the workplace with alcohol in their bloodstream. The second respondent in making this finding disregarded the charge that was laid against the applicant which clearly stated that the applicant was charged with testing positive for alcohol during mandatory testing and not random testing. 5. The second respondent failed to take into account common cause facts that employees who now test positive to alcohol do not get dismissed but get a final written warning. This fact demonstrated that the old rule was not connected to the safety measures but were extreme and unreasonable. 6. The second respondent failed to apply his mind and misconstrued the rule because it did not speak of employees voluntarily testing if they consumed alcohol the night before. It simply said that employees must voluntarily test if they had a suspicion of alcohol in their blood stream. 7. The second respondent failed to have regard to material evidence properly before him when he found that mandatory testing was introduced in the new policy whereas it was always existing in the old policy. The only thing introduced by the new policy was the relaxation of the rule with regard to positive testing. It was relaxed from 0.00% to 0.002% according to the expert witness. 8. The second respondent committed gross irregularity in relation to his duties and or did not apply his mind to the facts when he found that the rule that employees should have a reading of 0.00% during testing is not unreasonable and scientifically impossible to maintain. These rules simply prevented employees from using alcohol outside working hours, all in fear of testing positive. The rule did not only encroach into workers personal rights to consume alcohol but also did not aim at ensuring safety in the workplace. The rule would have been reasonable if it regulated the use of alcohol to be in line with what has been scientifically proven not to impair the decision making ability of the employee. But in a company that employs more than 1500 adult employees ‘it is bound to have drinking employees’. This is supported by the fact that the third respondent relaxed the rule after the dismissal of the applicant and allowed some level of alcohol in the workplace and also changed the sanction for testing above the new limit from dismissal to final written warning. This evidence can only suggest that the third respondent acknowledged the difficulty of ensuring that all employees test 0.00% to alcohol thus rendering the old rule unreasonable. The second respondent despite this evidence still believed that the old rule was reasonable to justify the dismissal of the applicant. The rule that seeks to enforce discipline on an employee for merely testing positive for alcohol is not a reasonable rule. 9. The second respondent committed gross irregularity in finding that the applicant's challenge was that positive alcohol testing was not caused by alcohol but was caused by medication. The applicant clearly testified that he was not aware what caused the positive alcohol testing between alcohol consumption or taking of medication. The employee stated that the use of medication could have triggered the alcohol consumed the previous day since the medication also had this alcohol. This was also confirmed by the expert witness who said this was possible. The second respondent therefore misdirected himself and or misconstrued the nature of the inquiry. 10. The second respondent committed gross irregularity and/ or did not apply his mind and or exceeded his powers with regard to the inquiry and evidence before him when he found that in the 25 minutes in which the applicant's alcohol reached zero he could have entered the workplace and caused serious injuries to fellow workers. Besides this being an unjustified exaggeration by the second respondent he fails to appreciate the fact that the applicant was not charged and dismissed for being under the influence of alcohol but he was dismissed for merely testing positive. He further failed to take into account the evidence of the medical expert who clearly said that the alcohol level in the bloodstream of the applicant was low and could not have impaired the decision-making ability of the applicant. The second respondent in his finding is simply assuming the worst without supporting evidence, in fact with evidence suggesting the contrary. 11. The second respondent committed gross irregularity and or failed to apply his mind in finding that the applicant’s dismissal was appropriate without considering the evidence. It was always the case of the applicant that dismissal was not an appropriate sanction. The only response to this question from the third respondent was that dismissal was appropriate because the rules said so at that time. There was no evidence or other factors that could justify dismissal as a sanction. 12. The second respondent correctly quotes six considerations that must be taken into account in deciding whether dismissal was an appropriate sanction. In his finding the commissioner considers only two of the six considerations. He considered the importance of the rule as well as the reasons the employer imposed the sanction of dismissal. In his finding the second responded incorrectly and wrongly found that the employer's reason for the sanction was justified taking into account that the new rules with regard to alcohol testing are distinguishable by the absence of mandatory testing from the old rules. This finding is therefore based on incorrect facts. I have stated above that mandatory testing was always in place. He found that in terms of the old testing rules only random testing and voluntary testing were in place. He fails to consider the evidence of the applicant with regard to the procedure for random testing that it was carried out through parading of an access card and that the applicant's access card was not paraded: in fact he made no finding on this. 13. The second respondent further committed gross irregularity in that he failed to consider whether there was any harm caused by the applicants conduct. Had he made such a consideration he would have come to a conclusion that no harm was caused by the conduct of the applicant more especially where it was common cause that the applicants alcohol testing results were 0.00% in a space of 25 minutes. As well as the evidence of the doctor which stated that the applicant was not under the influence of alcohol. 14. The second respondent failed to consider whether additional training and instruction may have resulted in the applicant not repeating the misconduct. If the second respondent considered this he would have concluded that repeating of the offence would not have occurred more especially now that the employee voluntarily requested the third alcohol testing after 20 minutes of the first test in order to demonstrate that he was not a danger in the workplace. 15. The second respondent failed to take into account the effect of dismissal on the applicant. It is commonly known that the steel industry in the country is experiencing massive retrenchments as a result it would be difficult to find alternative employment having been dismissed for testing positive for alcohol just because the rule says he must be dismissed. 16. The second respondent failed to consider the service record of the applicant. He had 13 years’ service, and dismissal for testing positive for alcohol and negative within 25 minutes was grossly unfair. 17. The second respondent failed to apply his mind and misconstrued the rule because it did not speak of employees voluntarily testing if they consumed alcohol the night before. It simply said that employees must voluntarily test if they had a suspicion of alcohol in their blood stream. 18. The second respondent failed to have regard to material evidence properly before him when he found that mandatory testing was introduced in the new policy whereas it was always existing in the old policy. The only thing introduced by the new policy was the relaxation of the rule with regard to positive testing. It was relaxed from 0.00% to 0.002% according to the expert witness. 19. The second respondent’s award was not one that a reasonable decision maker could make. Legal principles [12] Section 145 of the Act provides that any party to a dispute alleging a defect in any arbitration proceedings may apply to the Labour Court for an order setting aside the arbitration award, and ‘defect’ is given the following meaning: (a) that the arbitrator (i) committed misconduct in relation to the duties of the arbitrator as an arbitrator; (ii) committed a gross irregularity in the conduct of the arbitration proceedings; or (iii) exceeded the arbitrator’s powers; or (b) that an award has been improperly obtained. [13] It is now trite that the requirements for the review of an award under the Act are stringent and that the applicable test in reviews is that of reasonableness: an award of an arbitrator of the CCMA or a Bargaining Council is reviewable if the decision reached by the arbitrator was one that a reasonable decision-maker could not reach. [2] [14] In Herholdt v Nedbank Limited [3] , the Supreme Court of Appeal stated as follows: ‘ [25] … Material errors of fact, as well as weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’ [15] In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others [4] , it was stated that ‘in short, a reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’ The Labour Appeal Court went on to state per Waglay JP as follows: ‘ [20] The questions to ask are these: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he was required to arbitrate (this may in certain cases only become clear after both parties have led their evidence)? (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?’ [16] More recently, in Delmas Coal (Pty) Ltd v CCMA and others [5] , the Labour Court, having regard to Gold Fields Mining SA [6] and Department of Education v Mofokeng & others [7] , summed up the position as follows: ‘ [10] What this analysis requires is that the review court determine first whether the arbitrator perpetrated any ‘defect’ or irregularity contemplated by s 145 (2). Secondly, the court must have regard to the distorting effect that the error may have had on the outcome of the arbitrator’s award. Thirdly, if it is reasonably clear that but for the identified error relied upon the award would have been different or cannot stand on its own reasoning, then the award is prima facie an unreasonable award. Finally, the court must have regard to the issues and the evidence as a whole to determine whether or not the outcome is nevertheless capable of being sustained on the Sidumo test. Put more plainly, the review court must ask whether but for the defect, a reasonable decision-maker could have come to the conclusion reached in the award on the same material. [11] When conducting this analysis, the review court must avoid falling into the trap of what the Labour Appeal Court in Gold Fields referred to as a ‘piecemeal analysis’ of each of the arbitrator’s findings. The question to be answered ultimately is whether on the totality of the evidence, a relationship of reasonableness exists between that evidence and the result reached by the arbitrator have committed.’ [17] Ultimately, the applicant in this case is required to establish that the award was one that could not have been made by a reasonable decision-maker on the evidence presented. Evaluation [18] At the commencement of his analysis of the evidence, the arbitrator reminded himself that he was required to consider whether a. there was a rule in place at the workplace; b. whether the rule was known to the employee; c. whether the rule was reasonable; d. whether the rule was breached; and e. whether the sanction applied was appropriate. [19] He then set out to deal with each in turn. [20] The applicant submitted that the arbitrator dismissed the applicant’s case without properly applying his mind to material evidence which justified a different outcome. The applicant set out 17 grounds of review which are recorded above. [21] With regard to the question whether there was a rule in the workplace and whether it was a reasonable rule, the arbitrator recorded the following in his award: ‘ 112. I now consider whether there is a rule in place at the workplace. It is not disputed and was not contested that at the time the applicant was employed, there was in place at the workplace a 0.00% alcohol limit. It is also common cause that the respondent had in place a system of disclosure where employees were prescribed medication. They had to disclose this to the company's medical practitioner and to the testing officer. 113. The next question then is, is the rule reasonable. Mr Sibeko lead evidence that where the applicant works are bake furnaces, vehicles, machinery and forklifts moving around. More appropriate to the present dispute he testified that where the applicant works are cranes overhead which maneuver large one ton anodes below and which are placed in bake furnaces to harden in the process of making aluminium. 114. In line with this I would be amiss if I did not emphasize the importance of having a rule completely banning employees reporting to work with alcohol in their body system. It is also reasonable to hold employees accountable for not volunteering where they know they had something to drink the night before especially in the case of the applicant who consumed alcohol at 12:00 am, the early hours of the day of the incident. It is also reasonable to have in place a rule obliging employees to disclose any medication they may be taking as this could inhibit the ability of employees and cause risk and danger to other employees and equipment of the respondent. The inherent dangers associated with the applicant's job emphasized the need to have such a rule in place at the workplace. 115. It is not disputed that the applicant was aware of the rule against reporting for duty with more than 0.00% alcohol in his system. The rule is accordingly reasonable as the rationale behind the rule is sound as it is designed to provide a safe environment for employees.’ [22] The evidence presented at the arbitration hearing has been deliberately detailed with a view to understanding the issues raised by the applicant. [23] It is clear from the evidence that the third respondent’s workplace was not a safe environment unless there were strict rules in place in terms of safety, and its employees were aware of the rules. The third respondent's policies and procedures as presented by Mr Sibeko were not disputed. It was also not in dispute that the applicant was aware of the third respondent’s policies and procedures relating to the consumption of alcohol and alcohol testing. The policy provided for · random or unannounced testing, · voluntary testing, and · mandatory testing based on risk. [24] It was also clear from Mr Majola’s evidence that the third respondent relied only on random testing at the time. The risks were great and emphasis was placed on the employees making their own assessments as to whether they were free of alcohol or drugs when they commenced duties. The rule was clearly based on trust. To this end, the employees had an opportunity to undertake a voluntary test before they entered the company premises if they suspected they might not pass a random test. Once they had passed the turnstiles, and if they were selected for random testing, they had to obtain a 0.00% result to enter the plant. [25] It was therefor surprising that the employee presented a version that there was a daily mandatory testing system which is simply not supported by the evidence as a whole, including the documentary evidence. If there was already a mandatory testing system in place, there would have been no need to introduce the new procedures in February 2014. I will revert to the issue of the new procedures later. It is clear the word ‘mandatory’ in the charge refers to mandatory testing once the employee is selected for random testing. It is then that the testing becomes mandatory. [26] The applicant’s submission that the commissioner failed to apply his mind to the material facts when the commissioner made a finding on the importance of having a rule ‘completely banning’ employees from reporting to work with alcohol in their system is not justified. Firstly, there was in fact no ban on the consumption of alcohol in the employees’ private lives as the applicant suggests. The alcohol policy did not seek to control the lives of employees outside the workplace as the applicant suggests. It sought to ensure that employees were free of alcohol and drugs when they entered the workplace for the safety of the workplace and its employees which is a reasonable requirement, particularly in the case of the third respondent’s operations. The context in which the word was used by the arbitrator clearly refers to the third respondent’s 0.00% alcohol policy which the arbitrator found reasonable in the circumstances of this case. [27] With regard to the question whether the rule was breached, the arbitrator stated as follows: ‘ 116. I now consider whether the rule was breached. It is common cause that the applicant when tested recorded a reading of 0.018% which is in breach of the rule requiring employees to report for duty with 0.00% alcohol in their body system. 117. What is disputed is that the cause of the positive reading was from consuming alcohol. The applicant testified that the cause of the positive alcohol reading was the medication he had taken. He testified that he was unaware that the medication he had taken had an alcohol content of 40% as it is labeled as herbal medication. He also did not disclose the medication to the testing officer Mr Majola, as he did not know that it had alcohol in it.’ [28] According to the applicant, the arbitrator committed gross irregularity in finding that the applicant's challenge was that positive alcohol testing was not caused by alcohol but was caused by medication. According to the applicant he clearly testified that he was not aware what caused the positive alcohol testing between alcohol consumption and taking of the medication and that he stated that the use of medication could have triggered the alcohol consumed the previous day since the medication also had alcohol. In this way, so it was contended, the arbitrator misdirected himself and misconstrued the nature of the inquiry. [29] This was the applicant’s evidence-in-chief at the arbitration hearing: ‘ Oh, okay. So you consumed alcohol, but around that one o'clock you went to sleep_ --- Yes, 1:00/2:00 I was at home. … Before you went to work did you consume any other thing that might have raised your alcohol level, or that might have caused your blood to have an alcohol limit, a level in your blood? --- No, beside, I remember I was - I slept and I still slept through during the day as well. And, ja, when I got up, I got ready for work, the only thing I took was some of the Scweden Bitter to assist me. … Okay, you are referring to what? --- The medication. … Okay, why you did not declare this one? --- Because according to me it was a herbal supplement, I didn't consider it medication at the time. But then how does the supplement that you are referring to applies into your case, why is it an issue? --- You mean like taking it? I'm saying why are we discussing this medication? --- Because at the time, I didn't realize there was alcohol in this medication and I was using it at the time while I was - because of our situation at work, where I was working things had changed a bit, we weren't working according to your – okay, the way we worked was a rotational system, two days in a certain position and then we change. So, I needed something to assist me, because I was having some problems with my back, my lower back, and I was subjected to working on the crane for, I think at the time it was four months straight. And I needed something else to assist me to just help me through that, to assist me with the back pain and stuff. So I was using the stuff, it was mainly for my kidneys. … But this supplement has anything to do with what you've tested as a result of your alcohol test? --- You know what, it's what I've taken and then I went in. I don't know maybe if maybe my previous night's alcohol could have - if this could have affected it in any way, or if it could have what-you-call-it, what's the word? if it could have – ja, like, you know, …[intervention] Could have raised the alcohol of your blood? --- Yes, and that's what - and when I went through the turnstile I tested positive. And if I had known that there was alcohol, I would have definitely have went through a voluntary testing. So basically you submitted this to indicate as being the only thing that you took before work? --- Yes And what time did you take the supplement? --- Just before I went to work, I took some at home and I drove to work.’ [30] The following is noted from the employee’s evidence: (a) It is not clear how the Schweden Bitter would have the ‘raised the alcohol’ in the employee’s blood unless it itself contained alcohol. (b) If this is so, then surely the employee’s defence is that he unknowingly took medication that contained alcohol? (c) During cross-examination the employee stated that the pharmacist had recommended the medication to him, and that he had not seen the ingredients of the medication because the label was covered with a sticker until it was removed by the chairperson at the disciplinary enquiry. This response provides no explanation as to why or how he decided to declare it in his defence of the allegation against him. (d) When he was later asked when he first became aware that the medication contained alcohol, he responded that it was in the evening after he was suspended from work that he realized that this medication had alcohol in it. This response provides no explanation as to how he came to know that the medication, the Schweden Bitter, contained alcohol when the sticker covered the ingredients. (e) The point is that it was the applicant who presented the Schweden Bitter as a factor which, according to him, ‘raised the alcohol of his blood’. (f) If it was not his contention that it was the medication that caused the reading of 0.018, then he has not stated as much in his version. (g) His version suggests one of two things: either that his reading would have been 0.00% if not for the Schweden Bitter, or it might have been something lower that 0.018 if not for the Schweden Bitter. [31] The applicant’s assertion that the arbitrator incorrectly found that his challenge was that the positive reading was caused by the Schweden Bitter is not justified. [32] Dr Chandika said that it was improbable that the medication could have been the cause of the positive reading. [33] The employee clearly attempted to obfuscate the issues with (a) a version that the third respondent had a system of mandatory testing in place whilst he was still in employment (whereas it was also common cause that the mandatory system was only introduced two years later), (b) a contention that he had consumed Schweden Bitter but it was not his defence that that caused the positive reading; (c) his contradictory evidence about when he realized there was alcohol in the Schweden Bitter; and (d) his general evasiveness which was evident throughout the transcript of the arbitration hearing. [34] With regard to the issue of the sanction of dismissal, the applicant contended essentially that the arbitrator did not consider all of the factors which he was required to in terms of the Sidumo judgment. [35] In Sidumo v Rustenburg Platinum Mines Ltd [8] , the Constitutional Court listed a number of factors (which is not a closed list) that a arbitrator must consider when deciding on the fairness of a dismissal. These factors are (i) the importance of the rule that was breached; (ii) the reason the employer imposed the sanction of dismissal; (iii) the basis of the employee’s challenge to the dismissal; (iv) the harm caused by the employee’s conduct; (v) whether additional training and instruction may result in the employee not repeating the misconduct; (vi) the effect of dismissal on the employee; and (vii) the long-service record of the employee. [36] The arbitrator reiterated the importance of the rule in the workplace. He did not address the fact that no harm was actually caused by the employee’s conduct, whether additional training and instruction might have resulted in the employee not repeating the misconduct, the effect of dismissal on the employee, and the employee’s service record. [37] It is trite that an arbitrator does not have to list every factor that he took into account in reaching a conclusion. [38] In the present case, an additional factor was raised which was that the third respondent had since the dismissal of the employee introduced a new alcohol policy. The third respondent re-called Mr Sibeko to deal with this issue which was raised by the applicant. He adequately explained the rationale behind the new policy and the fact that it was implemented with the blessing of the trade union. The reason why an employee would not be dismissed on the first offence is that the third respondent is now able to test everyone who enters the premises, and the risk of an employee entering the workplace whilst under the influence of alcohol is now eliminated as everyone is tested. Mr Sibeko stated that although the alcohol limit is now 0.002%, anyone detected with any alcohol in their system is not allowed to enter premises unless the reading is 0.00%. [39] It is correct that had the incident occurred after February 2014 under mandatory testing, the employee might have been issued with a final written warning. However, the incident in question occurred in 2012, two years prior to the implementation of the new policy. It is pertinent in the circumstances of the employee’s case that his commission of the offence involved an element of dishonesty. I am in agreement with the arbitrator’s finding that there was no inconsistency in the application of the rule. [40] The question ultimately is whether the decision of the arbitrator is one that a reasonable decision-maker would not make. [41] Having regard to the evidence in its totality, I find that the decision of the arbitrator was one that a reasonable decision maker could make. Conclusion [42] I find that the review application must fail. [43] Since costs do not follow the results in labour matters, I do not find that it is necessary to make a costs award against the applicant. Narini Hiralall Acting Judge of the Labour Court of South Africa APPEARANCES: For the Applicant:                                         Ms P. Ramlall Instructed by:                                                HBR Attorneys Inc. For the Respondent:                                    Mr Alexander Instructed by:                                               Norton Rose Fulbright SA Inc. [1] Act 66 of 1995 [2] Sidumo & Another v Rustenburg Platinum Mines Ltd & others, (2007) 28 ILJ 2405 (CC) [3] (2013) 34 ILJ 2795 (SCA) [4] (2014) 35 ILJ 943 (LAC) [5] Judgment of the Labour Court per Van Niekerk J, dated 12 June 2018, Case no. J440/17 at paragraph [6] supra [7] [2015] 1 BLLR 50 (LAC) [8] [2007] ZACC 22 ; 2008 (2) SA 24 (CC); 2008 (2) BCLR 158 (CC) sino noindex make_database footer start