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REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: LCA2/2013

In the matter between:

OHORONGO CEMENT (PTY) LTDAPPELLANT

and

ANTHONY K KARWAPAFIRST RESPONDENT

DONDUMISA MBIDI N.O.SECOND RESPONDENT

Neutral citation: Ohorongo Cement (Pty) Ltd v Karwapa(LCA2/2013) [2014] NALCMD 27 (25June 2014)

Coram:GEIER J

Heard:26 November 2013

Delivered:25 June2014

Flynote: Labour Appeal – on behalf of first respondent it was contended that inspite of an agreement betweenthe parties’ representatives during the arbitration before second respondent to limit the issues in dispute to substantive fairness only it was still incumbent on the arbitrator and the court to determine the procedural fairness of the dismissal – court rejecting such approach – holding that an arbitrator or the court would no longer be at liberty to consider both the procedural and substantive fairness of a dismissal once the parties had agreed to limit the issues in dispute and thus had confined the determination thereof by agreement. There was no reason why the parties should not be allowed to do so and thereby narrow the ambit of their dispute regardless of the issues originally formulated in a complaint. Clearly any such limitation would thereafter consequentially determine the nature of the evidence and the manner in which the parties would present their cases. To then again go outside the ambit of such issues would not be permissible as this would, for obvious reasons, materially prejudice the parties, who by choice had limited their cases to the agreed issues. Any subsequent determination - outside the agreed to ambit - would for such reasons, obviously render any such subsequent proceedings, irregular.

Labour Law – appeal – court holding that in the context of considering whether or not the first respondent’s dismissal had been substantively fair that such determination wouldalso have to be made against the background circumstances of the matter.In casu it was considered relevant that the appellant was operating a cement manufacturing plant and that it does so in a regulated environment and within the regulatory framework imposed on the parties by theMines, Works and Mineral Ordinance of 1968, and its regulations. As a result the appellant had adopted a zero tolerance policy towards alcohol and drugs in order to maintain a safe and healthy environment for all employees, the employer and visitors. By reason of this not only the interests of the individual fell to be considered, but also those of the collective workforce and those of the employer and even visitors to ensure an overall safe working environment for all.

This important aspect hadalso been included in the first respondent’s contract of employment in terms of which first respondent had undertaken to respect and obey all safety and health rules and policies laid down by the appellant and to require other employees under his / her supervision (if applicable) to do the same and to display a general regard for the safety and health of other employees.

Once thereasonableness of theappellant’s actions -and whether or not these facts and circumstances constituted a valid and fair reason for the first respondent’s dismissal -in view of the first respondent breach of these conditions - were considered against this background, it emerged that the dismissal of the first respondent was essentially to be regarded as being substantively fair - especially if it was taken into account that ultimately the ‘greater good would so prevail’ ie. even if this meant that the collective interest of the safety of the overall workforce, the employer and visitors would so prevail over the individual interest of the first respondent.

In such circumstances it could also not be said that the sanction imposed was one that no reasonable employer would have imposed – appeal accordingly upheld.

Summary: The facts appear from the judgment.

ORDER

The appeal is upheld and the second respondent’s award, in favour of the first respondent, as made on 14 December 2012,is set asideand the first respondent’s dismissal is thus confirmed.

JUDGMENT

GEIERJ:

[1]The appellant, a cement manufacturer,has adoptedagainst the applicable regulatory background, as a matter of policy, a zero tolerance approach, regarding alcohol and other drugs, and its effects, in its working environment.

[2]The objectives and scope of appellant’s policy were formulated as follows:

‘OBJECTIVES

The objectives of this policy are as follows:

  • To protect the health and welfare of employees by implementing prevention and detection.
  • To maintain a safe and healthy environment for all employees and visitors (inclusive of consultants and contractors) free of the influence of alcohol and drugs.
  • To ensure that all employees who are deemed under the influence of alcohol or other drugs are dealt with in an effective, fair and constructive manner.
  • To promote compliance with relevant legislation.

SCOPE

This policy applies to all employees, contractors and visitors at all Ohorongo Cement facilities, including Sargberg Plant and Windhoek office.’

[3]The statutory background for this policy is provided by theThe Mines, Works and Mineral Ordinance of 1968, Regulations 141 (1) and (2), which state:

‘No person in a state of intoxication or any other condition which may render or be likely to render him/herself incapable of taking care of himself/herself or of persons under his/her charge, shall be allowed to enter a mine or be in the proximity of any working place on the surface or near to any machinery in motion, and any person who may have entered a mine or works or to be found at any working place above or below ground in a state of intoxication may be immediately arrested by the manager or some person duly appointed by him and immediately handed over to the police, and such person shall be deemed to be guilty of an offence against this regulation.

No intoxicating substance shall be taken by any person into the workings of any time or works or to any place of work, unless with special permission of the General Manager, and no workman shall have intoxicating liquor in his/her possession whilst at work or at a place of work.’

[4]In terms of the aforesaid policy an employee will also be regarded as ‘unfit for work’ when such employee’s blood alcohol or if a cannabis test, for instance, returns a positive result.

[5]In order to enforce its policy the appellant subjects its entire workforce to random alcohol and drug testing, after the particular employees have been selected for testing by a specific computer program,using a company number. Those employees, who are on annual- or sick leave, when their company numbers are selected by the computer program, will not be replaced by other company numbers.

[6]On 26 June 2012 first respondent was subjected to a random drug test as provided for in appellant’s alcohol and drug policy. The test yielded a positive result for marijuana.

[7]As a result, disciplinary proceedings were instituted against him. He was charged as follows.

‘ ... that he was positively tested for drugs (marijuana) when the yearly medicals were conducted and that this action was in breach of his conditions of employment and constituted a breach in the trust relationship.

Alternatively, that he was grossly negligent in that he was tested positive for an intoxicating substance, drug (marijuana), when he was well informed about his yearly medical and thereby being ignorant of the company policies and that this action was in breach of his contract of employment.’

[8]First respondent’s disciplinary hearing took place on 10 July 2012. First respondent was represented at the disciplinary hearing. He pleaded guilty to the main charge after the allegations concerned were read out to him and he indicated that he understands the allegations against him. The consequences of a guilty plea were also explained to him. He was found guilty on the main charge and dismissed thereafter.

[9]First respondent noted an appeal against the ruling of the chairperson of the disciplinary hearing, but was unsuccessful.

[10]On 15 August 2012 first respondent lodged a complaint of ‘unfair dismissal’ and ‘unfair labour practice’ against appellant with the Labour Commissioner, the cause of which allegedly arose on 27 June 2012.

[11]The arbitration hearing took place on 5 November 2012 after the matter was unsuccessfully conciliated on 3 September 2012.

[12]The second respondent, the arbitrator in the matter, made an award in favour of the first respondent on 14 December 2012 in the following terms:

a)That the dismissal of the respondent was substantively unfair.

b)The appellant was ordered to reinstate the respondent.

c)The appellant was ordered to effect payment to the respondent of the salary he would have earned between 27 June 2013 and the date of his assumption of duties, at rate which he was earning at the time of his dismissal and the he was to resume duty within one month of the award.

d)The appellant was further ordered to reinstate all benefits as if the respondent had not been dismissed.

e)The respondent was to report for duty within one month of receipt of this award.

[13]The appellant noted an appeal against the award, which appeal is now before this court.

The grounds of appeal

[14]The appellant’s grounds of appeal are in summary:

(a)that the respondent’s dismissal by the appellant was procedurally and substantively fair;

(b)the arbitrator misdirected herself on the facts in finding that the employee was not on duty whereas he was on duty on 26 June 2012 when the alcohol / drug test was conducted;

(c)the arbitrator misdirected herself in finding that the dismissal was substantively unfair; and

(d)she had no jurisdiction to make the award that she made.

The grounds of opposition thereto

[15]The respondent’s grounds of opposing the appeal are in summary:

(a)Although the respondent pleaded guilty to the main charge, when he advanced the reasons for his guilty plea the chairperson should have entered a plea of not guilty and allowed the matter to proceed normally;

(b)The appellant did not follow its own policy in respect alcohol and drug tests;

(c)The arbitrator made the correct decision in finding that the sanction was harsh and amounts to an unfair reason for dismissal.

THE WRITTEN ARGUMENTS ON BEHALF OF APPELLANT

[16]Mrs de Jager, who appeared on behalf of the appellant, made the following written submissions on behalf of her client:

AD THE FIRST GROUND

‘The second respondent misdirected herself as to whether the respondent was onduty or not, and in particular:

(a)She erred in ruling that first respondent was off duty when he was noton leave and, when he was merely requested not to tender his services for the day in question in order to attend to “off-site” medical testing and, while the said day was a normal working day and first respondent was remunerated accordingly;

(b)She erred in that she misconstrued herself as to when an employee ison and/or off duty, in particular, by requiring that the employee had to “clock – in” in order to be considered to be on duty;

(c)She erred in finding that first respondent was not on duty in that shecould not reasonably, on the evidence before her, have come to this conclusion;

(d)She erred in so far as she required that the medical testing be done “on site”, and/or that first respondent be “on duty”.

Whereas second respondent misdirected herself in law in coming to theconclusion that first respondent was not on duty on 26 June 2012, it follows that the whole process of adjudication was tainted. As from the moment second respondent came to the aforesaid conclusion, the issues in dispute were determined on the basis of an error in law. As a result, the above honourable court is at large to reconsider the claim whether or not first respondent was unfairly dismissed.

The aforesaid question of law and its corresponding ground of appeal should be read

and considered in conjunction with the next question of law and its corresponding grounds of appeal.

Second respondent concluded that she is convinced that there was substantive

unfairness as first respondent was off duty on the day of the medical check-up concerned (emphasis added). This finding appears to be the basis for the award.

Second respondent recorded in the award that it was common cause that firstrespondent was on leave when he went for a random medical check-up. This was not common cause. There is simply no evidence on record that the aforesaid alleged fact was common cause. Appellant did not concede to this during the arbitration hearing and it was not canvassed during cross examination of appellant’s witness.

.According to second respondent, appellant’s witness in the arbitration hearingexplained that, the supervisor / foreman to first respondent booked him off for the day concerned but when first respondent was booked off in this context it did not mean that he was off duty. Second respondent recorded in the award that, according to appellant’s said witness, first respondent was paid for that day, appellant arranged the transport concerned and employees usually did not go to work after a medical test, so they have the entire day off but appellant still pays their full salary for the day concerned.

It is submitted that, for purposes of determining whether or not first respondent’sdismissal was substantively fair, it is irrelevant whether or not first respondent was on or off duty on 26 June 2012 when the medical test was conducted and argument to the contrary is irrational.

From the outset, it must be borne in mind that first respondent pleaded guilty to thecharges that led to the arbitration hearing. Second respondent stated in the award that first respondent signed the document to plead guilty because he was forced to do so. This is simply incorrect. First respondent specifically testified that they did not force him.

Furthermore, appellant’s alcohol and drug policy inter alia provides that those employees who are on annual or sick leave when their company numbers are selected will not be replaced with other company numbers (Arbitration record: Page 269). As a result, it is argued that the scheduled tests concerned will continue, whether or not an employee is on leave, especially in circumstances where an employee undergoes the test concerned despite being on leave.

It is important to note that, first respondent indeed underwent the test despite allegedly being on leave (if it is accepted that he was on leave). As a result, it is argued that he must face the consequences of the test result. Otherwise, the purpose of the test would be meaningless and a mere waste of appellant’s money. It must also be noted that first respondent was on duty (physically at work) the very next day, 27 June 2012.

First respondent’s dismissal cannot, in law, be held to have been substantively unfair in the circumstances of this matter merely because first respondent was off duty on 26 June 2012 (if it is accepted that he was on leave). Appellant has a zero tolerance for drugs. This is quite understandable having regard to the nature of appellant’s business as described in the ruling of the chairperson in the disciplinary hearing. Drugs remain in a person’s system for a period of time and as stated above, first respondent was on duty the very next day.

It was, in any event, never first respondent’s case that he was unfairly dismissed because he was off duty on 26 June 2012 when the test was conducted. This point was taken by second respondent from her own motion.

It was an error in law for second respondent to have based her award on the unproved fact that fist respondent was not on duty on 26 June 2012.

It must also be kept in mind that second respondent specifically recorded in the award that appellant’s said witness testified that, first respondent was not the only employee who was dismissed on the same charge and according to appellant’s policy, when found guilty for using drugs, the sanction is dismissal.

2:WHETHER OR NOT SECOND RESPONDENT CORRECTLY APPLIED HER MIND TO THE FACTS PLACED BEFORE HER AND WHETHER OR NOT SHE DETERMINED THE MATTER ON A BALANCE OF PROBABILITIES

The grounds of appeal pertaining to the aforesaid question of law are as follows.

The technique generally employed in resolving factual disputes may be summarized as follows. To come to a conclusion on the disputed issues, findings must be made on:

(a)the credibility of the various factual witnesses;

(b)their reliability; and

(c)the probabilities.

As to (a) above, a finding on the credibility of a particular witness will depend on the court or tribunal’s impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as:

(i)the witness’s candour and demeanour;

(ii)his bias, latent and blatant;

(iii)internal contradictions in his evidence;

(iv)external contradictions with what was pleaded or put on his behalf, or with established facts or with his own extra-curial statements or actions;

(v)the probability or improbability of particular aspects of his version;