Introduction

In Optimum Coal Mine (Pty) v Patrick Makoea and two Others (LC) JR727/2012 of 10-10-2013, a recent unreported judgment of the Labour Court, Fourie AJ held that "in the context of mining operations, a zero-tolerance policy approach to intoxication in the workplace, and the use of blood alcohol measuring to monitor and enforce this rule, is fair and reasonable. At a procedural level, provided the policy is publicised, and uniformly enforced (which could include random checks), it will pass muster for fairness."

Background

An employee was employed by Optimum Coal Mine (Pty) Ltd in October 2008 and occupied the position of induction facilitator from 5 July 2011.

During September 2011, and as part of a random testing exercise, the employee (one of 70 people tested) was tested and found to be in excess of the alcohol intake limit. The employee was consequently charged with the offence of working under the influence of alcohol, found guilty and was dismissed.

Optimum's disciplinary policy contained the provision that reporting for work with an alcohol content· above 0.00 mg/100 ml; and where being under the influence of alcohol may pose a threat to personal safety, the safety of others or company property; the sanction for a first offence would be dismissal. After exhausting the internal appeal procedures, the matter was then referred to arbitration under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA).

The Arbitration Proceedings

At the arbitration proceedings the Arbitrator found that there was nothing wrong with the machine used to test the employee; that the employee had discharged the onus of proving such; and further, that the employee had indeed tested positively for alcohol intoxication on the day in question. He consequently found the employee guilty of the charge of working under the influence of alcohol.

The Arbitrator, however, found that on the evidence available, the company did not prove that the employee's ability to perform his job was impaired on the day in question; and further, that besides having red eyes, the employee's speech, behaviour and movements were normal.

The Arbitrator consequently found the sanction of dismissal to be inappropriate and substantively unfair. The Commissioner reinstated the employee, but without back payment, as he was "an architect of his own misfortune".

Review Proceedings at the Labour Court

Review proceedings were brought before the Labour Court in Johannesburg, with the key focus being the determination on whether the application of a “zero – tolerance” policy towards intoxication, which prescribes a sanction of dismissal for a first offence in respect of blood alcohol levels being in excess of 0.0mg/100ml blood alcohol, was reasonable and whether the sanction imposed by the employer was fair.

The acting judge found the commissioner's finding to be a material misdirection for the following reasons:

  • Optimum's case was not that the employee was too intoxicated to work, but that it had a zero tolerance policy for employees reporting for duty with alcohol in their bloodstreams;
  • such policy was reasonable considering the context in which the employee operated;
  • such policy was reasonable considering the onerous statutory obligations on Optimum to ensure safe operations.

The acting judge further found the policy to be well known and consistently applied. The sanction imposed in terms of this policy was thus found to be fair.

The acting judge found that within the inherently dangerous nature of mining operations, a very strict approach to intoxication, even at a minimal level, is appropriate. He remarked that such approach did not require an employer to prove that an employee was too drunk to perform his or her work safely as this would be practically impossible to implement in the workplace. The judge further remarked that it was likely that accidents could occur prior to an employer being able to establish whether an employee was too intoxicated to work safely.

The judge stated that the Labour Appeal Court had not taken issue with a similar policy in the case of Phalaborwa Mining Co Ltd v Cheetham and Others [2008] 6 BLLR 553 (LAC).

Optimum's policy was found to be fair as it:

  • had been agreed to with the majority trade union;
  • had been operative for quite some time;
  • was known to the employee; and
  • was imposed without discrimination.

The acting judge reviewed and set aside the arbitration award issued at the CCMA and replaced it with an award that the employee's dismissal was both substantially and procedurally fair.

Conclusion

The mining industry is inherently dangerous. There is an onerous burden on mines to comply with strenuous legislation such as the Mine, Health and Safety Act, No. 29 of 1996. As such, a zero-tolerance policy and related dismissals due to substance and alcohol abuse is reasonable, provided it is made known to employees and consistently applied.

The decision cements Optimum's zero-tolerance policy towards substance abuse and sends a direct message to both employees and employers that substance abuse will not be tolerated within an inherently dangerous working environment.

Optimum's stringent policy provides an example to other mining companies wanting to prevent unwanted costs for various labour forums and ensure a safer working environment for their employees through effective and justified policies.