Tiger Brands has lost its application against an earlier finding it had unfairly dismissed a worker who twice tested positive for alcohol when he reported for duty.
The court found the company only held a disciplinary hearing months later following the incidents.
The food manufacturer turned to the Labour Court, sitting in Johannesburg, following a CCMA ruling the worker was unfairly dismissed. The commissioner at the time found the dismissal was too harsh and a final warning would have sufficed
Tiger Brands then asked for that ruling to be reviewed and overturned.
The worker, Ben Mabizela, started working for the company in 2006 and was dismissed in 2019. He worked as a heavy machine operator at the company’s plant in Germiston.
Tiger Brands said as it was obliged to provide a safe working environment for all, it has a strict code of conduct regarding a zero-tolerance for the consumption of alcohol when on duty.
It said employees knew they’d be dismissed if anyone tested positive for alcohol or other substances. It would issue a final written warning only in exceptional circumstances.
On January 7, 2019, Mabizela tested positive for alcohol when he reported for work and was sent home.
Three months later, the same happened.
In June he was called in for a disciplinary hearing regarding the January incident. This hearing was delayed, but in August was given final warning regarding the January incident. In September, he was called to a disciplinary hearing regarding the April incident. He was found guilty and fired.
While the CCMA commissioner accepted the zero tolerance policy, he expressed concerns regarding the delays in both disciplinary proceedings. The commissioner said dismissal was meted out in October for the April incident.
He was fired because he was already on a final warning for the January incident. But, the commissioner said, this ignored the fact Mabizela was punished for the January 2019 offence after the April 2019 offence had occurred.
The CCMA, in its initial judgment, said it was astonishing the employer took seven months to conclude the hearing regarding the January incident and six months to conclude the April transgression. This was gross mismanagement of the disciplinary processes.
It was also taken into account Mabizela was allowed to continue working for six months after the April transgression, before he was fired.
Acting Judge T Gondidze, in the Labour Court, turned down the review and said the commissioner’s observation that the disciplinary process was grossly managed was a reasonable conclusion. The fact the employee was subjected to daily tests following the first incident did not have the effect that he knew he would be dismissed if another test came back positive.
While it was correct the employee now had two written warnings for the same misconduct, Tiger Brands had only itself to blame for that state of affairs. Had it acted promptly on the first incident, the final written warning would have served as a warning that a repeat would result in dismissal.
Pretoria News