Icala aliboli - DUIs and why you can still be fired over a 2-year-old lie

Image source: maksym yemelyanov – 123RF.com

Section 65 of the National Road Traffic Fines Act 1998 deals with driving while under the influence and specifically prohibits the operation of a vehicle when the driver’s blood alcohol content (BAC) is 0.05g/100ml, and 0.02g/100ml for professional drivers.

The recent Labour Court judgment in the matter between South African Breweries (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others serves as a caution to employees of the employment ramifications of drinking and driving.

Facts

In the matter before the Labour Court, South Africa Breweries (SAB) sought to review and set aside and/ or correct the arbitration award of the Commission for Conciliaiton, Mediation and Arbitration (CCMA), wherein the Commissioner had found Aphelele Maho’s dismissal to be substantively unfair.

Maho was issued with a company vehicle to use in the course of his duties. On or about 16 June 2017, and while still operating the company vehicle, Maho decided to visit the Yolo Lounge in Queenstown where he drank some alcohol and, on his way home, was involved in a collision that resulted in the company-issued vehicle being written off. Fortunately, no one was injured.

SAB investigated the cause of the collision and invited Maho to state his version. Maho submitted a written statement to the effect that he only had one alcoholic drink while at the Yolo Lounge. Relying on Maho’s bona fides in his statement, SAB found that there was no prima facie evidence of misconduct committed by Maho, and duly closed the investigation against him, reserving the right to open the investigation and/ or take disciplinary action should tangible evidence come to its attention concerning the incident.

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In March 2019, SAB received a report from the South African Police Services (SAPS) indicating that Maho’s BAC at the time of the collision was 0.23g/100ml, which was approximately four times the legal limit for a normal driver.

This resulted in Maho being charged with allegations of misconduct in that he drove the company vehicle whilst under the influence of alcohol as well as for the willful damage to SAB’s property. Maho was ultimately found guilty on both charges and dismissed pursuant to a disciplinary hearing. His efforts to internally appeal his dismissal were unsuccessful and his dismissal was confirmed on 9 October 2019.

CCMA arbitration proceedings

Maho, assisted by the Food and Allied Workers Union (Fawu), referred an unfair dismissal dispute to the CCMA. The Commissioner, having heard the evidence and the parties’ submissions, issued an arbitration award confirming Maho’s guilt.

The Commissioner, however, found the sanction of dismissal to be unfair on the basis that SAB knew of the misconduct and still issued Maho with another vehicle and allowed him to work for a further 22 months after the collision.

This, the Commissioner found to be an indication that the continued employment relationship was not intolerable as the misconduct could be resolved by progressive discipline. In this regard, the Commissioner found that a sanction of a final written warning was more appropriate and ordered Maho’s reinstatement without backpay.

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Labour Court review proceedings

Aggrieved, SAB instituted a review application in the Labour Court against the Commissioner’s arbitration award. SAB contented that the Commissioner had failed to consider and/ or properly consider the relevant evidence, and/ or failed to attach due weight to the evidence presented before the Commissioner.

In particular, SAB argued that Maho was dishonest in his statement and had indicated that the collision occurred due to him being fatigued, while it later transpired that the collision was caused by his blackout owing to his excessive BAC, which was confirmed by an expert witness. The Commissioner also ignored the evidence that Maho’s conduct attracted a sanction of dismissal in terms of SAB’s policies.

Further, SAB contended that the Commissioner had ignored and/ or failed to assess the evidence before him on a balance of probabilities. The Commissioner fixated on the withdrawal of the investigation and the employment of Maho for a further 22 months, during which he was issued with a new company vehicle.

The Commissioner misconstrued this to mean that SAB had forgiven and reconciled with Maho. This was vehemently contested by SAB, who also argued that Maho’s dishonesty was ignored by the Commissioner, despite it contributing to the irretrievable breakdown of the trust relationship and intolerability of continued employment relationship.

SAB, further, highlighted the Commissioner’s failure to consider that, by driving under the influence, Maho had posed a risk to himself and other road users.

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The Labour Court agreed with SAB’s contention and found that, had Maho been honest, he would not have enjoyed continued employment with SAB, as SAB would have pursued the disciplinary process at that stage and would have likely dismissed him shortly after the incident. The time lapse would not have been a factor in a subsequent arbitration.

In this regard, the Labour Court found the Commissioner to have inadvertently rewarded Maho for his dishonest and deviant conduct, which the Labour Court found to be unreasonable. Such conduct reflected his lack of remorse and untrustworthiness, and that progressive discipline would likely be unsuccessful.

The Labour Court found that it was extremely irresponsible, willful and unacceptable of Maho to operate a vehicle while his blood alcohol level was four times the legal limit. The Labour Court found that the Commissioner had clearly failed to consider the seriousness of Maho’s misconduct of operating a vehicle with a BAC over the limit, which disregarded the life and safety of both Maho and other road users.

The Labour Court found that Maho’s dismissal was fair and that the sanction of dismissal was appropriate in the circumstances.

Conclusion

This case confirms that the employer is entitled to take disciplinary action where new evidence comes to light, despite having withdrawn any investigation and/ or disciplinary proceedings. As the South African maxim 'icala aliboli' goes, 'a case does not rot'.

Furthermore, the Labour Court’s decision highlights the need for CCMA commissioners to properly consider all evidence and the circumstances of cases before them.