IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
                                                         CASE NO:	C262/2005

In the matter between:

NATIONAL UNION OF MINEWORKERS	                 First Applicant
ERNEST MOLEFE	                                        Second Applicant

and

COMMISSION FOR CONCILIATION,	
MEDIATION AND ARBITRATION                      First Respondent
COMMISSIONER HENDRIK OLIPHANT	 N.O.    Second Respondent
ASSMANG LIMITED 	                                    Third Respondent

J U D G M E N T

         NEL AJ:

[1]	This is a review application to have the arbitration award of the second respondent ("the Commissioner") handed down in the first respondent under case number NC221/05 on 4 May 2005 reviewed and set aside or corrected.

[2]	The third respondent (“the mine” or “the employer”) employed the second applicant (“Molefe”) as a balk attendant/loading attendant. The nature of the work, and the particular area in which Molefe performed his work, were of a hazardous and high risk nature.

[3]	On 26 December 2004, Molefe reported for work at the mine at 06h00.  A team supervisor, Van Zyl, said that when he gave Molefe an instruction to open a particular chute in the workplace, he noticed that certain physical symptoms were exhibited by Molefe which led him to believe that he was under the influence of alcohol.  Van Zyl said that he noted from the manner Molefe spoke that his speech was affected, that his eyes were red and that he was unsteady on his feet.  He also said that when he approached Molefe, he could smell alcohol on Molefe. As a result of these observations, Van Zyl instructed Molefe to go to his office whereafter they went to the mine's security in order to test Molefe for being under the influence of alcohol.  Molefe had said that he was drinking with two other employees and that they should also be tested. These employees were called and Van Zyl took Molefe home.  Van Zyl explained how the testing apparatus worked and that this was also explained to Molefe and that he had no objection to undergoing the breathalyser test.  Molefe voluntarily took the breathalyser test. The same breathalyser had been used for all employees. Van Zyl also stated that Molefe had never approached him and advised him that he had an alcohol-related problem.  He was also not aware that Molefe had approached any other supervisor on his, Molefe's, shift in relation to an alleged alcohol-related problem. The breathalyser test revealed a reading of 0,272. Van Zyl also stated that employees of the mine had been informed on a number of occasions of the mine's zero tolerance alcohol policy and the problems that alcohol caused.

[4]	The IR manager of the mine, Mr Ekkerd, testified that Molefe had not reported an alcohol problem to him before his dismissal. Had he done so, the mine would have helped him as they had helped other employees.

[5]	Molefe testified that after he had reported for duty on 26 December 2004 his supervisor, Van Zyl, called him and said to him that he was not in good standing.  He confirmed that he was not good because he had been from Christmas.  He was sent to security where he was made to blow, whereafter he was sent home.  Molefe denied that he was under the influence of alcohol on 26 December 2004.  He did confirm that he attended a party on Christmas day.  He contended that he was not under the influence of alcohol because he did not drink on 26 December 2004 whilst he was on duty.  He said that he had an alcohol problem and that he had asked the employer for help.  He had approached the nursing sister at the mine's clinic who sent him to the IR department.  From there he was in turn sent to the social worker but he was not helped.  He mentioned all the people he had been to and that he had explained his alcohol problem to them so that he could be referred for rehabilitation.  He however never received any help. Molefe contended that the mine had acted inconsistently because one employee was reinstated after having been dismissed for the same offence of being under the influence of alcohol. Another employee had been sent for drug rehabilitation and two other employees were charged for the same offence but both were still working for the mine.  Molefe denied that he could not stand on one leg without staggering when the security tested him.  He also said that his eyes always appeared reddish and he did not trust the tester because he saw it for the first time.  On the day in question he could perform his duties because he was not under the influence of alcohol.  He confirmed that it was not the first time that he was in trouble for being under the influence of alcohol and he was aware of the rule that you may not report for duty if you are under the influence of alcohol.  He had been given a final written warning when he previously was found guilty of being at work whilst under the influence of alcohol.  Molefe could not provide any reason why he did not bring any of the people he had mentioned to whom he had reported his alcohol-related problem to testify on his behalf.  He also had never advised his union that he had reported his alcohol-related problem to his employer and that the mine refused to help him.  

[6]   Molefe called a full-time shop steward who testified on Molefe’s behalf that the mine did not act consistently in respect of other incidents of employees having been at work under the influence of alcohol.  He also said that he was aware of the fact that the mine implemented a zero tolerance policy relating to being under the influence of alcohol or drugs at the workplace.

[7]	It is against this factual background of the evidence adduced before the Commissioner that I proceed to assess the question whether the Commissioner committed any irregularity or misconduct or exceeded his powers in the conduct of the arbitration. The applicants launched a general attack against the award on the basis that it was not justifiable in relation to the evidence and the reasons provided therefor.  

[8]    It is apparent that the Commissioner approached the matter on the basis of first stating that the employer implemented a zero tolerance policy on alcohol which was in line with the Mine Health and Safety Act No. 29 of 1996 which provided that "no person in a state of intoxication or any other condition which may render or be likely to render him incapable of taking care of himself or of persons under his charge, shall be allowed to enter the workplace of a mine of be in proximity of any working place or near machinery or on the surface of a mine or at works, and any person who may have entered the workings of a mine or who is found in the proximity of any workings or near any machinery on the surface of a mine or at any works in a state of intoxication may be arrested immediately by the manager or some person duly appointed by him and immediately handed over to the police, and shall be deemed to be guilty of an offence under these regulations". 

[9]  The Commissioner then embarked on an enquiry whether the employee did transgress the employer's clear rule regarding being at the workplace whilst under the influence of liquor or other habit-forming drugs or any other substance. It is apparent from the Commissioner's award that in this regard he assessed the evidence by Van Zyl together with that of Molefe.  It is also apparent that the Commissioner regarded Van Zyl as a very reliable witness.  The Commissioner's reasons show that he had regard to the hearsay evidence relating to the breathalyser test  to the extent that he regarded it as corroboration of the evidence of Van Zyl.

[10]	Mr Cloete, who appeared before me on behalf of the applicants, contended that for the Commissioner to have relied on the hearsay evidence by Van Zyl and Ekkerd in respect of the breathalyser instrument and the testing, amounted to a gross irregularity.  As I have said, it is quite apparent that the Commissioner relied on the evidence of Van Zyl that Molefe was visibly under the influence of alcohol and smelt thereof.  Under these circumstances, the breathalyser result was, in my view, not necessary to be considered by the Commissioner at all for him to justifiably come to the conclusion that, on a balance of probabilities, Molefe was at the workplace whilst under the influence of alcohol.  It is apparent that the Commissioner was alive to the fact that he was having regard to hearsay evidence of the breathalyser test, but that he simply regarded that as corroboration for the reliable evidence adduced by Van Zyl in this regard.  Even if I were persuaded that the Commissioner committed a reviewable irregularity by having had regard to the hearsay evidence in respect of the breathalyser testing, and I were to review and set aside this part of his award, having assessed the evidence of Van Zyl and that of Molefe, I would on the probabilities have been driven to the very same conclusion.  

[11]	I am however satisfied that the Commissioner justifiably relied on the evidence of Van Zyl, which he found to be reliable, for his conclusion that the employer had satisfied the onus of proving that Molefe had transgressed the rule and that he was, on a balance of probabilities, at the workplace under the influence of alcohol.

[12]	It is clear that the Commissioner did not have regard to anything other than the breathalyser reading of 0.272.  This is apparent from the fact that in his award the Commissioner specifically recorded that:

		"The rest of the evidence related to the breathalyser test and neither the security guard nor a specialist testified at the arbitration.  However, the hearsay evidence of the test  corroborates the evidence of Van Zyl and the employees.  In my view the test confirmed that the employee had alcohol in his system which made him guilty of transgressing the company rules..."

In this regard it is not irrelevant that both the witnesses who testified on behalf of the mine said that the testing equipment had been used by the mine for an extensive period of time.  Ekkerd also testified that the equipment was regularly calibrated. I do believe that the reading given by such equipment will most always have some probative value, particularly in the absence of any evidence which may lead one to question the reliability of the equipment. This will be so, even if it may not constitute absolute proof of the blood alcohol content of the person tested.

[13]	Next it was contended on behalf of the applicants that the Commissioner had committed a gross irregularity in not applying the provisions of Item 10 of the Code of Good Practice: Dismissal as well as the accepted norms applied to the handling of alcohol abuse cases. Obviously, before an employee's alleged alcohol-related problem may require consideration he needs to have come forward about the problem, or the employer itself must have discovered the existence of such a problem.  In the present matter it is clear that the mine was alive to its responsibilities as an employer to employees who may be addicted to alcohol.  Evidence was adduced that the mine had a well-known and broadly published policy in this regard.  Telephone numbers were displayed and employees, including Molefe, were well aware that they could approach the industrial relations department of the mine in order to obtain assistance if they had an alcohol-related problem.

[14]	It is apparent that the Commissioner was not convinced by Molefe's evidence that he had a drug problem and that he had reported it to his employer.  It is equally apparent that the Commissioner drew a negative inference from the fact that, having mentioned a lot of persons he allegedly had reported his problem to, none of these people were called to testify on Molefe's behalf.  The mine had adduced the evidence of Ekkerd, its HR manager, and he denied that Molefe had reported a problem to him.  The Commissioner also, quite correctly, had regard to the evidence of Van Zyl who had testified that Molefe never had an alcohol problem whilst he worked with him.  The Commissioner also considered the fact that Molefe had only had one previous alcohol-related offence about 18 months prior to the incident under consideration.  That, the Commissioner reasoned, was not in line with someone who had an alcohol problem.  The Commissioner also considered the fact that Molefe had confirmed during cross-examination that he had never been absent from work because of alcohol.

[15]	I am of the view that the Commissioner had provided comprehensive reasons in support of his conclusion that Molefe did not satisfy him that he, as a matter of fact, had an alcohol-related problem. I am satisfied that the Commissioner's conclusion is perfectly justifiable having regard to these reasons and the evidence and material which were considered by the Commissioner.

[16]	The applicants further took issue with the Commissioner's finding that the employer had acted consistently when dismissing Molefe. Here again it is clear from the Commissioner's award that he extensively dealt with the argument on consistency the first applicant had presented during the arbitration hearing.

[17]	It is apparent from the evidence adduced before the Commissioner that if there were extenuating circumstances, such as the length of service of an employee, one warning would be given to an employee for alcohol-related misconduct. The approach by the employer appears to be that the next occasion that an employee was found to be under the influence of alcohol, or to have otherwise transgressed the mine's rules relating to alcohol abuse, that employee would be dismissed, notwithstanding that a previous warning might not still be current.  It is further apparent that the Commissioner applied his mind to each and every one of the cases put forward by Molefe in support of his contention that the mine was not applying discipline consistently. The Commissioner provided detailed reasons for arriving at his conclusion that he could not, based on the evidence, find that the employer had acted inconsistently.  I believe that again the Commissioner's conclusion is justifiable having regard to the reasons given therefor and the evidentiary material on which he arrived at his conclusion.  In any event, I believe it is apt to refer to what Conradie JA had to say about the so-called principle of disciplinary consistency in SACCAWU & Others v Irvin & Johnson (Pty) Ltd (1999) 20 ILJ 2302 (LAC) at 2313C-J:

		"In my view, too great an emphasis is quite frequently sought to be placed on the 'principle' of disciplinary consistency, also called the 'parity principle'.  ... There is really no separate 'principle' involved.  Consistency is simply an element of disciplinary fairness.  ... Every employee must be measured by the same standards. ... Discipline must not be capricious. It is really the perception of bias inherent in selective discipline which makes it unfair.  Where, however, one is faced with a large number of offending employees, the best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards the other employees.  It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong.  It cannot be fair that other employees profit from that kind of wrong decision.  In a case of a plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy.  ... Even then I dare say that it might not be so unfair as to undo the outcome of other disciplinary enquiries.  If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not, in my view, necessarily mean that the other miscreants should escape.  Fairness is a value judgment.  It might or might not in the circumstances be fair to reinstate the other offenders.  The point is that consistency is not a rule unto itself".

[18]	Bearing these sentiments in mind, I am also in this respect satisfied that the Commissioner perpetrated no reviewable irregularity and that his conclusion that the mine had acted consistently in the application of discipline was justifiable having regard to the reasons given therefor.

[19]	The applicants also took issue with the fact that the Commissioner condoned the fact that Molefe's lapsed warning had been taken into account by the chairperson of the disciplinary hearing and that he held that Molefe's previous misconduct relating to alcohol was proof that he had no alcohol problem.  It is apparent from the evidence adduced before the Commissioner that the employer's approach in relation to alcohol related misconduct was that it was dismissing all employees with previous alcohol related transgressions.  It is apparent that the Commissioner had considered the fact that the final written warning issued against Molefe for the same conduct had expired but that he had accepted that this showed that corrective measures did not help.  It is further apparent from the Commissioner's reasoning that when he was considering whether Molefe's dismissal was the appropriate sanction, he took a vast number of factors into consideration in respect of which evidence had been adduced before him.  The evidence adduced before the Commissioner supports all of these factors.  I am of the view that the Commissioner’s conclusion, that dismissal was a fair sanction, is justifiable having regard to the reasons given by him and the evidence he had before him.

[20]	I do not believe that there is any irregularity in the manner in which the Commissioner dealt with the previous final warning, which Molefe had against him.  In the first instance, addressing Molefe's allegation that he had an alcohol-related problem, the fact that he had a previous final written warning for alcohol-related misconduct 18 months earlier, together with the fact that the employer's uncontested evidence was that Molefe had not had other alcohol-related problems as well as the fact that the HR manager had testified that he had not reported such a problem, perfectly supported the Commissioner's justifiable conclusion that Molefe's contention that he had an alcohol-problem stood to be rejected.

[21]	Then the applicants took issue with the fact that the Commissioner mentioned in his award that, before Molefe had changed his answer to a particular question posed in cross-examination, the Commissioner had heard Molefe's union representative whispering to him to say that he did not understand the question and that the Commissioner accordingly had decided to treat Molefe's answer with caution. The complaints against the Commissioner were twofold. In the first instance it was complained that the finding of the Commissioner that whispering had taken place was not borne out by the record. Molefe and the union representative also denied that such whispering had taken place.  The Commissioner was further taken to task, if the whispering had taken place, for not having raised his complaint in this regard there and then and on the record. Had he done so, so the argument went, the alleged transgressors could have dealt with the Commissioner’s complaint. 

[22]	It is so that the record does not reflect the whispering by Molefe's representative nor does it show that the Commissioner had dealt with this issue when it occurred.  It is so that the Commissioner should immediately, and on the record, have dealt with the matter. It is to be noted that it is only denied by Molefe and his representative that the representative had whispered something to Molefe.  Issue is not taken, so it would appear, with the Commissioner's conclusion that Molefe had changed his answer. I am however unpersuaded that this one possible error on the part of the Commissioner in the conduct of the proceedings is of a sufficiently serious nature to warrant any interference with his award as a whole. I do not believe that it has led to the employee party not having had a fair hearing.

[23]	I have accordingly not been persuaded in respect of any of the grounds of review raised by the applicants that any grounds exist to review and set aside the Commissioner's award. The application is therefor dismissed and the applicants are ordered to pay the third respondent's costs of suit herein.

                                                
         Deon Nel
         Acting Judge of the Labour Court. 

         DATE OF HEARING: 27 September 2006
         DATE OF JUDGMENT:                                                

         APPEARANCES:

       For the applicants: Mr N Cloete of Neville Cloete Attorneys                                         Inc.
For the third respondent: Advocate A Snyder instructed by                                                   Leppan Beech Inc.