The labour court finds the dismissal of a worker, who evidently took a sniff of cocaine during a lunch break on the company's premises, to be warranted.
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Closed circuit television footage showing an employee of a cable company jumping into a car with “white substance” - believed to be cocaine - and the driver of the vehicle “snorting” the substance became the subject of a judicial review before the labour court.
Durban-based company Aberdale Cables turned to the court to overturn the decision of an arbitrator that the employee should continue working for the company. The company’s decision to fire its employee, only identified as Mervin in the judgment, was overturned on arbitration, but the labour court now ruled his dismissal was fair.
While Mervin tested positive for the drug, he claimed that he had used it days prior while not at work. The cable company has a zero-tolerance policy for testing positive for drugs while at work.
Mervin was found guilty of consuming and dealing cocaine on the company premises, leading to his dismissal after testing positive for the substance. The company relied on the video surveillance, which showed him climbing into a vehicle at the gate and handing a cellphone and white substance, later accepted to be cocaine, to the driver, who snorted it.
A urine test done a few hours later concluded that Mervin had also consumed the substance. His employer concluded that before handing the cocaine to the driver, he too had used it.Mervin, while admitting that he used cocaine socially, denied he had done so in the vehicle. He also pointed to the fact that he was not captured on CCTV using cocaine and argued that the company also could not prove that the white substance was indeed cocaine.
Following his dismissal, his union took the case to arbitration, where the commissioner found his dismissal to be substantively unfair and ordered his reinstatement. The labour court found that the arbitrator’s decision was not reasonable.
Acting Judge N Govender pointed to the evidence, which included the CCTV footage, the presence of cocaine, and the positive drug test. The court also considered the fact that Mervin did admit he used cocaine on occasions.
Judge Govender said the only reasonable inference was that Mervin had consumed the cocaine in the car.In slamming the findings of the arbitrator, the judge said the arbitrator failed to consider the fact that the company has a zero-tolerance policy on testing positive for alcohol or drugs at work. This, the judge said, was because the company is forced in law to maintain this policy as its employees work with machinery. In terms of legislation, it is obliged to maintain a safe working environment.
Judge Govender said the company’s decision to fire Mervin was neither harsh nor unreasonable under the circumstances. The court measured this against Mervin’s attitude, as he was not remorseful for facilitating the use of cocaine on the company premises during his lunch break. The judge said even if Mervin did not use the drug on company premises, he still deserved to be fired as it was present in his system.