The labour court finds the dismissal of a worker, who evidently sold cocaine on the company's premises and consumed the drug, to be warranted.
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A Durban cable company employee who tested positive for cocaine and was captured on CCTV handing a "white substance" to a motorist who then appeared to snort it has ultimately lost his bid to keep his job after the Labour Court overturned an arbitration ruling that had reinstated him.
The case centred on CCTV footage recorded at the premises of Durban-based Aberdale Cables, which showed the employee, identified only as Mervin in the judgment, climbing into a vehicle near the company gate and handing both a cellphone and a white substance, later accepted to be cocaine, to the driver.
According to the evidence before the court, the driver then snorted the substance while seated in the vehicle.
Mervin was subsequently subjected to a urine test a few hours later, which returned a positive result for cocaine.
Aberdale Cables dismissed him after finding him guilty of consuming and dealing cocaine on company premises. The company relied on the CCTV footage and the positive drug test, concluding that Mervin had also consumed the cocaine before handing it to the driver.
While Mervin admitted that he used cocaine socially, he denied consuming it in the vehicle. He maintained that he had used the drug several days earlier while away from work. He also argued that the CCTV footage did not show him taking cocaine and that the company could not prove the white substance was cocaine.
The company, however, has a zero-tolerance policy regarding employees testing positive for drugs while at work.
Following his dismissal, Mervin's union referred the matter to arbitration. The commissioner found that the dismissal was substantively unfair and ordered his reinstatement.
Aberdale Cables then approached the Labour Court to review and set aside the arbitration award.
Acting Judge N Govender found that the arbitrator's decision was unreasonable when viewed against the totality of the evidence.
The judge considered the CCTV footage, the presence of cocaine, the positive drug test and Mervin's own admission that he used cocaine on occasion.
Judge Govender said the only reasonable inference that could be drawn from the evidence was that Mervin had consumed cocaine while in the vehicle.
The court further criticised the arbitrator for failing to properly consider the company's zero-tolerance policy relating to alcohol and drug use in the workplace.
Judge Govender noted that Aberdale Cables was legally obliged to maintain such a policy because its employees work with machinery and the company is required by law to provide a safe working environment.
In setting aside the arbitration award, the court found that the company's decision to dismiss Mervin was neither harsh nor unreasonable.
The judge also took into account what was described as Mervin's lack of remorse for facilitating the use of cocaine on company premises during his lunch break.
Judge Govender concluded that even if Mervin had not consumed cocaine on company property, his dismissal remained justified because the drug was present in his system while he was at work.
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