Substantive fairness in dismissal

National Union of Metalworkers of South Africa obo Mvotyo / Transnet Freight Rail – Eastern Cape – (2024) 33 TBC 8.18.1 also reported at [2024] 1 BALR 12 (TBC)

Subject matter classification:
Dismissal – Substantive fairness – Misconduct – Gross insubordination – Employee dismissed for repeatedly refusing to undergo substance abuse test – Dismissal fair. 

Mini Case Summary:
The applicant employee, a yard official, was dismissed for gross insubordination and dishonesty for refusing to undergo a substance abuse test and lying to his supervisor about the reason for his absence from work a few days later. He claimed that his dismissal was unfair because the person who administered the test was not competent, that the charges had been duplicated and that he had been denied the right to call witnesses and cross-examine those of the respondent at his disciplinary hearing. 

The Arbitrator noted that the employee had not denied refusing to obey an instruction, but had contended that the instruction was unlawful and unreasonable. The respondent’s substance abuse policy provided that screening of employees or contractors would be done with various devices and that employees are considered unfit for work if they refuse to undergo tests on request. The Occupational Health and Safety Act 85 of 1993 obliges employers to prevent intoxicated employees from entering the workplace. Whether or not the tester is certified to test employees is immaterial. The fact remained that the employee had deliberately refused an instruction to be tested on several occasions for the same spurious reason. Moreover, the employee had behaved aggressively and insulted security officials. This amounted to gross insubordination, which warranted dismissal. 

The Arbitrator held further that the applicants had provided no facts to justify their claim of procedural fairness. 

The application was dismissed.