Black Mountain v CCMA & others [2005] 1 BLLR 0001 (LC)

Principle:

Where the employer's disciplinary code and policy provide for a particular approach it will generally be considered unfair to follow a different approach without legitimate justification. Justice requires that employers should be held to the standards they have adopted.

Facts:

While operating a 50-ton vehicle at the employer's mine, the employee caused an accident by allowing his vehicle to hook onto certain electrical cables, dragging them down and exposing other employees to risk. He was immediately tested for the intake of alcohol and it was established that he was significantly beyond the legal limit. He also displayed apparent symptoms of being under the influence of alcohol.

Following a disciplinary enquiry the employee was dismissed for both damage to company property and being under the influence of alcohol whilst operating heavy machinery.

The employee referred an unfair dismissal dispute to the CCMA where the Commissioner found it to be common cause that by being under the influence of alcohol, the employee was in breach of the employer's disciplinary code and that this could amount to misconduct warranting dismissal. However, she upheld the argument that the employer's written Standard Procedure for Alcohol and Drug-related Behaviour prevailed over the applicant's disciplinary code. The CCMA commissioner came to the conclusion that the referral of the employee to assessment by a therapist was mandatory on his being charged with alcohol-related misconduct and hence that disciplinary procedures should have been suspended until such time as the process was complete. In her view the failure to follow the process laid down in the standard circumstances during the disciplinary process resulted in an unfair dismissal.

The Labour Court, while recognising that the company's policy was a progressive one, saw that it imposed a significant limitation upon the company's prerogative to discipline for drunkenness. The standard procedure offered an approach different to that contained in the company's disciplinary procedure, which categorised being drunk or under the influence of alcohol as a "summary discharge offence".

The court said it could not come to any other conclusion but that the procedure should have been applied. The fact that the employee was subjected to disciplinary action without first being dealt with in terms of the applicable procedure undoubtedly rendered the disciplinary hearing procedurally unfair. The dismissal of the third respondent is declared to be procedurally and substantively unfair.

Extract from the judgment:

[At para 9]   The applicant challenged the award mainly on the basis that the alcohol policy was designed only for cases not warranting summary dismissal and that the interests of safety fully justified the sanction of dismissal in this instance. Mr Wagenaar, on behalf of the applicant, also submitted that the second respondent's interpretation would have the effect that an employee who had two or three drinks before driving heavy machinery, but who did not have an alcohol problem, would be dismissed. Yet the same sanction could not be applied for the same conduct in the case of an employee with a drinking problem; a situation he described as "clearly unfair and untenable".

[10]   While I have one or two minor quibbles with the reasoning of the second respondent, I am unable to conclude that her award is irrational or unjustifiable with reference to the material upon which it is based. Moreover, the applicant's submissions on review are plainly without merit. Firstly, there is no basis upon which the standard procedure can or should be limited to instances of conduct not warranting summary dismissal. The preamble to clause 7 applies the procedure to "disciplinary action in alcohol and/or drug-related cases" without limitation. Once it is established that alcohol is involved, the standard procedure applies; in which event, clause 7.4, 7.6 and 7.7 still allow for discipline, including dismissal, once treatment has been offered and failed, or a priori where dependency is not established. Dismissal is never entirely excluded as an option. The standard procedure set its sights on humane alternatives aimed at the treatment of what is after all a social problem, before the imposition of a drastic final sanction. As for the occasional drinker, he or she would be disciplined for misconduct, because there would be no underlying illness in the form of dependency, which would justify a different approach. In short, the occasional drinker is guilty of wilful misconduct, whereas the person dependent on alcohol is ill and possibly operationally incapacitated. It is precisely the purpose of the assessment contemplated in clause 7.2 to determine whether the conduct should be viewed as misconduct or incapacity. Such an approach reflects, and is entirely in keeping with, item 10 of the Code of Good Conduct in Schedule 8 of the Labour Relations Act 66 of 1995 which endorses the view that disciplinary action is not always the appropriate way of treating alcohol abuse and that counselling and rehabilitation may be the preferred option. Admittedly the Code is not prescriptive in this regard. But, as in this case, when the employer chooses to determine, formulate and communicate a policy opting for a progressive rehabilitative approach, at the very least it can be expected to observe and act in accordance with it. Failing which, it will be open to the charge of substantive unfairness for failing to apply its own policy governing alternatives to dismissal. Where the employer's disciplinary code and policy provide for a particular approach it will generally be considered unfair to follow a different approach without legitimate justification. Justice requires that employers should be held to the standards they have adopted (see Changula v Bell Equipment (1992) 13 ILJ 101 (LAC) and SA Clothing & Textile Workers Union & another v Martin Johnson (Pty) Ltd (1993) 14 ILJ 1033 (LAC)).

[14]   Accordingly, I am unable to find that the second respondent has misdirected herself in any material way, or that her award is not justifiable in relation to the reasons given for it within the meaning of section 145 of the Labour Relations Act 66 of 1995. It follows that there is no basis for reviewing and setting aside her award.