Arriving for duty under the influence of alcohol or failure to adhere to Company policies? Which one is it?
In Pioneer Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (LC) [2023] the Union representative on behalf of the employee argued that while it was not disputed that the employee pleaded guilty during the different inquiry, for being under the influence of alcohol when reporting for duty, to which he was charged for and dismissed, he should have been charged for the failure to adhere to company policies, and accordingly dismissal was inappropriate in the circumstances.
In short, the employee was employed by the employer as an Operator since on or around April 2018. The Employer introduced a policy dealing which dealt with, among other things, the use of alcohol at the workplace. Any transgression of this policy would result in disciplinary action. During the breathalyzer testing trial period, on or around March 2019, the employee tested positive for alcohol, and again in April 2019, for which he was issued with a final written warning. In August 2019, the employee was issued with a second final written warning after he tested positive yet again, to which he agreed to a period of counselling. In October 2019 the employee tested positive, and was called to an internal enquiry, where he pleaded guilty to the charge and was subsequently dismissed from his employ.
The employee, aggrieved by the decision, referred an unfair dismissal dispute to the CCMA. The evidence led during the arbitration proceedings demonstrated that the brethalyzer test implemented by the employer consisted of a two-stages test. An employee would complete the initial (screening) test and the device would only indicate a positive or negative reading. The employee would then wait for 30 minutes whereafter a second test would follow and a percentage of alcohol in his body would show. When the employee tested positive in October 2019, he failed the first (screening) test, whereafter he was to undergo the second test. The employee subsequently indicated that there was a break-in at his wife’s residence and left the premises without undergoing the second test.
The Union representative on behalf of the employee submitted that it was not disputed that the employee pleaded guilty during the disciplinary inquiry, but argued that the employee was incorrectly charged, and that had been correctly charged he would have been issued with a final written warning, and that dismissal in the circumstances was inappropriate. The CCMA Commissioner, persuaded by the case put forward by the Union, accepted that the sanction of dismissal was inappropriate for the said misconduct as the employee was incorrectly charged, and ordered re-employment.
On review, the Union argued that its member should have been charged for not following procedures when he left the premises of the employer. The Labour Court held that it was clear that the employee was intoxicated on the day in question, but unclear why the employer had to present evidence that the employee was unable to fulfil his duties, as this was never the allegation nor charge against him - he was charged for arriving at work whilst under the influence of alcohol. The Labour Court further held that the Commissioner failed to consider the history of offences and previous progressive steps taken by the employer. It was clear that the employee was intoxicated and fled the workplace as he knew he was likely to fail the second test. The Labour Court, therefore, set aside the CCMA arbitration award, and held that the dismissal of the employee was substantively fair.
Importantly, this case highlights the failure of the arbitrator to properly and reasonably determine the evidence placed before it and to consider probabilities, resulting in unreasonable findings made, that were set aside.
We trust that you found this article informative, please email info@hjwattorneys.co.za for assistance with dismissal disputes.
By Alexi Rosenzweig, candidate attorney, and Rowan Bauer, attorney, working in the employment law practice area at HJW Attorneys, a boutique law firm based in Fourways, Johannesburg.
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjwattorneys.co.za directly for advice applicable to your specific matter.