Azwiitei Awelani Mphaphuli v Matthews Ramotshela N.O. and Others

The applicant was employed by Exxaro Coal Limited as Head of Production: Coal Beneficiation, a senior management position. On 21 November 2016, the applicant was randomly selected for an alcohol breathalyser test at the entrance of the mine. He tested positive for alcohol but proceeded to drive into the mine premises without waiting for the test results, ignoring the security officer's attempts to stop him. He then could not be located, as he switched off his cell phones and spent time in a colleague's office. The applicant had two previous similar incidents: in December 2009 he received a final written warning for being under the influence of drugs/alcohol while on duty, and in October 2015 he received another final written warning for testing positive for alcohol on 19 September 2015, where he similarly drove away without waiting for results and refused the employer's offer of assistance. He was charged with contravening Exxaro's Zero Tolerance Management Instruction and the Disciplinary Code, and with dishonesty regarding the whereabouts of his cell phones. The applicant pleaded guilty to charge 1 (alcohol transgression) and not guilty to charge 2 (dishonesty). He was found guilty on both charges and dismissed. The second charge was dropped during arbitration proceedings.

• Whether the dismissal of the applicant for testing positive for alcohol and entering mine premises without waiting for results was substantively fair
• Whether the sanction of dismissal was appropriate in the circumstances
• Whether the commissioner's award was reasonable
• Whether the employer's Zero Tolerance Safety Policy justified dismissal
• Whether testing positive for alcohol constituted a transgression under the employer's policies and applicable legislation
• Whether the applicant's failure to lead evidence at arbitration warranted an adverse inference

The review application was dismissed. No order as to costs.

The binding legal principles established are: (1) Breach of a zero tolerance safety policy in the mining industry, particularly involving alcohol, constitutes serious misconduct that can justify dismissal. (2) Testing positive for alcohol and entering mine premises without completing follow-up testing procedures breaches both employer safety policies and the Mine Health and Safety Amendment Act Regulation 4.1.7. (3) An employer is not required to prove actual intoxication where an employee tests positive for alcohol and deliberately evades procedures designed to establish their state of sobriety, thereby creating a safety hazard. (4) In arbitration proceedings, where a party fails to testify or lead evidence in rebuttal when the opposing party's evidence calls for a reply, an adverse inference will be drawn against that party. (5) Previous similar transgressions and refusal of rehabilitation assistance are relevant aggravating factors in determining the appropriateness of dismissal for safety policy violations. (6) Senior management employees are held to higher standards of compliance with safety policies. (7) Courts must accord due weight to zero tolerance safety policies in hazardous industries as they underscore the importance of workplace safety and are aimed at obviating grave consequences including loss of life. (8) A commissioner's arbitration award will not be set aside on review unless it fails to meet the reasonableness benchmark, considering whether the decision reached by the commissioner is one that a reasonable decision-maker could reach on all the material available.

The court made several non-binding observations: (1) The court noted its disinclination to award costs against individual litigants who do not appear to have acted in bad faith in launching review applications. (2) The court observed that the Alcohol Policy makes clear that requests for rehabilitation assistance must be proactive and not defensive. (3) The court commented that the applicant "obviously did not live up to the standard of compliance and oversight expected of him as a senior manager." (4) The court noted that the currency (validity period) of the previous final written warning was of no consequence - what mattered was the pattern of transgression within just over a year. (5) The court observed that the applicant appeared to blame his conduct on family problems that started in 2014, but had refused help and bailed out from a Social Services program prematurely. (6) The court remarked on the applicant's "somersault" in pleading guilty at the disciplinary enquiry but then challenging guilt at arbitration, calling this approach questionable given the clear policy provisions.

This case is significant in South African labour law because it: (1) Affirms that breach of zero tolerance safety policies in hazardous industries like mining can justify dismissal, particularly for repeat offenders; (2) Emphasizes the weight courts must accord to safety regulations in the mining industry aimed at preventing loss of life; (3) Confirms that testing positive for alcohol, combined with entering mine premises without completing follow-up testing procedures, constitutes serious misconduct even absent proof of actual intoxication; (4) Demonstrates that senior management employees are held to higher standards of compliance with safety policies; (5) Illustrates the application of the adverse inference rule where a party fails to testify when the opposing party's evidence calls for a reply; (6) Confirms that disciplinary code sanctions are guidelines, not inflexible rules to be followed slavishly; (7) Reinforces that refusal of rehabilitation assistance can be used as an aggravating factor in subsequent disciplinary proceedings; (8) Applies the reasonableness test for reviewing arbitration awards established in Sidumo and developed in subsequent cases like Herholdt and Mofokeng. The judgment underscores the importance of workplace safety in high-risk industries and the legitimate interest employers have in maintaining strict safety protocols.