Not reportable 
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case no: C 959/11 
In the matter between:

SUPERSTONE MINING (PTY) LTD		 		Applicant
and 
CCMA 							First Respondent 
COMMISSIONER A OSLER N.O. 				Second Respondent 
NATIONAL UNION OF MINEWORKERS 			Third Respondent
ITUMELENG KUEBU						Fourth Respondent

Heard: 6 August 2013 
Delivered: 10 September 2013
Summary: Review - LRA s 145 - alcohol abuse - arbitrator misconstruing incapacity and misconduct - reinstatement unreasonable.

JUDGMENT

STEENKAMP J

Introduction
[1] This judgment addresses the issues of misconduct and incapacity that so often arise in the context of alcohol abuse.

Background facts
[2] The applicant company is a diamond processing business located in Kimberley. It dismissed the employee (the fourth respondent) for misconduct. He was charged with failing to adhere to company policies and procedures by being under the influence of alcohol during working hours.

[3] The National Union of Mineworkers (the third respondent) referred an unfair dismissal dispute on behalf of its member to the CCMA (the first respondent). Conciliation failed. The arbitration was heard by the second respondent, Commissioner Antony Osier (“the Commissioner”).

[4] At the arbitration, the employer led the evidence of the chairperson of the disciplinary enquiry, Mr AJ van den Berg; and that of its senior human resources officer, Ms C Kruger. The employee and his live-in partner also testified.

[5] At the disciplinary hearing, the employee pleaded guilty but alleged that he had an alcohol dependency problem. The chairperson required evidence to be led. The employee said that he had been watching a soccer match and drinking the night before he failed a breathalyser test at work - he had had “more than five beers”. The employee said that he did not realise that he had an alcohol dependency problem until this incident and that he had not reported any such problem to anyone before, despite the fact that the employer had a policy contained in an Alcohol and Drug Dependence Code. The chairperson rejected the employee’s defence of dependency as he had only raised the alleged problem when he had already been caught, there was no evidence to support his claim, and he had not previously raised the problem with the employer as required by the Code. The chairperson also took into account that the employee was a senior staff member and he was well aware of the “zero tolerance” rule relating to being under the influence of alcohol at work.
[6] The senior human resources officer testified that the alcohol and drug dependence Code offered assistance to any employee who took up the offer of help. The employee knew about the code but never approached the employer for assistance. The employee stated at his disciplinary enquiry that he had only realised that he had a problem during the enquiry, yet she met with him before the enquiry and he did not raise it at all. She also testified that the employee was acquainted with the disciplinary code that prescribed the misconduct in question as a serious one that could result in summary dismissal for the first offence. Some 13 workers had been dismissed for the same offence since 2005 and the employer was consistent in applying its zero tolerance policy. The employer could no longer trust the employee in his position after he had placed the safety of his colleagues in jeopardy,

[7] The employee admitted that the alcohol in his bloodstream was above the permitted level when he was at work. He was suspected of being under the influence of alcohol and underwent a breathalyser test that confirmed it. He confirmed that he had admitted guilt at the disciplinary enquiry, but claimed that it was unfair of the chairperson not to give him a chance to show that he had a problem. Even though he knew the zero tolerance rule four alcohol on duty, he sometimes brought alcohol to work which he would support during the day. Yet it did not mention his problem before his dismissal because he was “in denial". Only after his dismissal did he go to SANCA where he attended a six-week rehabilitation course for alcohol dependence. His live-in partner testified that the employee was very violent when drunk, that he fought regularly and that he came home “every day” under the influence of alcohol. She saw “a bit of progress” after his treatment with SANCA.

The award
[8] The Commissioner stated that “the crisp question here is whether the presiding officer was correct to continue with disciplinary proceedings in the face of the employee’s claim that he had an alcohol abuse problem and needed help”. With regard to procedural fairness, the question was whether the chairperson had applied his mind to the true nature of the proceedings, ie misconduct or incapacity.

[9] It is common cause that the employee was charged with misconduct and that the employer has a clear rule that proscribes being under the influence of alcohol at work as misconduct. There is no standing procedure requiring the employer to suspend disciplinary proceedings while the employee undergoes voluntary rehabilitation, thus distinguishing it from Black Mountain v CCMA. Instead, it falls on an employee who has an alcohol dependency problem to make use of the employers assistance scheme in Alcohol and Drug Dependency Code. The employee did not do so. Despite that, the commissioner found that the chairperson of the disciplinary hearing should have adjourned the hearing so that the possibility of rehabilitation could be investigated. For this reason alone, the commissioner found the hearing to have been procedurally unfair.

[10] From this finding, the commissioner jumped to a finding that the dismissal was also substantively unfair:"Because of the procedural unfairness discussed above, the finding of guilty on the charges of alcohol-related misconduct and the ensuing sanction are also unfair.”

[11] The remedy imposed by the commissioner, in turn, flowed directly from these findings. He found without more: “The employee requested reinstatement and i see no reason why this should not be implemented in this instance... I also find no reason why the employee’s arrear wages should notbe paid in full.”

Evaluation /Analysis
[12] The commissioner’s finding on sanction stems directly from his finding that it was unfair not to adjourn the disciplinary hearing in order to afford the employee an opportunity to undergo rehabilitation. But that reasoning is, in my view, fatally flawed. The employee never alleged that he was dependant on alcohol until after he had committed the misconduct that he had admitted. He was well aware of the employer’s clear rule and zero tolerance policy in this regard. He was also aware of the Alcohol Dependence Code, Yet he never made use of it. incapacity was never raised by the employee and was not an issue. This was a clear incident of misconduct; it was only when confronted with that reality that the employee belated alleged that he had a dependency problem.

[13] The commissioner’s attempt to distinguish this case from Transnei Freight Rail v Transnei Bargaining Council is unconvincing. In Transnei, this Court pointed out that an employer does not have a duty to treat an instance of alcohol-related misconduct as incapacity where there is no evidence of such incapacity. The same holds true for this case. The employee offered no medical evidence of incapacity and had not made use of the employer’s Code to assist in cases of alcohol dependency at the time of the disciplinary hearing. It is only three weeks after he had been dismissed that he went to SANCA, as he testified, “to establish whether maybe I was having this problem with alcohol”. And even after that, the letter from SANCA’s therapeutic counselling programme handed in at arbitration states that the employee “claims that he is not yet committed to abstain from the use of alcohol”. In those circumstances, and given the employer’s zero tolerance policy with regard to alcohol-related misconduct of which the employee was aware, dismissal was clearly a fair sanction.
[14] In ordering retrospective reinstatement, the commissioner disregarded his own finding that “the importance of safety at the workplace is neither denied or underestimated and this is, indeed, specifically emphasised in the aforementioned Code for Alcohol and Drug Dependence of the employer”. The employee was charged with and pleaded guilty to misconduct. At the time of the hearing, there was no proof of incapacity in the form of alcoholism. The conclusion reached by the commissioner is so unreasonable that no other arbitrator could have come to the same conclusion on the largely common cause evidence before him.

Conclusion
[15] The conclusion reached by the commissioner is so unreasonable that no reasonable arbitrator could have come to the same conclusion. It must be reviewed and set aside.

[16] It will serve no purpose to remit the dispute 10 the CCMA. All the evidence is before this Court and the Court is in a position to substitute the award.

[17] With regard to costs, I take into account that the employee was furnished with an arbitration award in his favour. The union was duty bound to defend the award in these proceedings. The trade union and the employer have an ongoing relationship. A costs order is not appropriate.
Order
[18] The arbitration award under case number NC 1141-41 is reviewed and set aside. It is replaced with an award that the dismissal of the employee, Mr Itumeleng Kuebu, was fair.
Anton Steenkamp
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:	Grant Marinus of Werksmans Inc, Cape Town.
THIRD AND FOURTH RESPONDENTS: 	Dr Neville Cloete (attorney), Kimberley.