MHE Electronics v Toffie and Lettman and Others

Citation: [2026] ZALCD 5

Presiding Judge: Maeso AJ

Court: Labour Court of South Africa, Durban

Nature of the Application

[1] This was an application to review and set aside the award issued by the second respondent (Commissioner Ntombizonke Mbili) in terms of section 145 of the Labour Relations Act 66 of 1995.

Factual Matrix

[3]–[7] Mr Toffie and Mr Lettman were dismissed on 4 November 2022 after failing a random drug test. Mr Toffie tested positive for THC, cocaine and amphetamine; Mr Lettman tested positive for heroin/morphine and amphetamines. Mr Lettman operated a laser machine and engraving machine requiring close concentration; Mr Toffie operated heavy machinery as a forklift driver lifting loads of 200–500 kilograms. The applicant maintained a zero-tolerance policy regarding narcotics in the workplace.

[8]–[9] Prior to the internal enquiry, Mr Toffie pleaded guilty to being under the influence of an intoxicating substance. Mr Lettman pleaded not guilty and produced a doctor's test results indicating no intoxicating narcotics, though the doctor was not called to give evidence at arbitration.

The Arbitration Award

[11]–[12] The employees challenged the test procedure, arguing:

"They argued that the results were not conclusive, as there could have been a possibility of the results being mixed up or tampered with."

[17]–[21] The Commissioner concluded:

"[17] 'The applicants (Toffie and Lettman) version on how the tests were conducted remains undisputed and must be accepted. The evidence of the employer on how the tests were conducted appears to me to have missed cardinal rules of fairness. The applicant's urine samples were not marked before them, room for error was in this regard very probable. Furthermore, it remained undisputed that the test results were not shown immediately to the applicants shortly after the test were conducted. This raises serious concerns on why the employer decided to keep the tests from the applicants at this point, in fact the employer testified that they did not know what the indicators meant until this was verified after a meeting was held to deliberate on the results.' [18] For these reasons, the second respondent concluded that the probabilities favor the conclusion, as advanced by Toffie and Lettman, that the test results were not accurate."

Review Analysis

[26]–[30] The Court found the evidence supported a fair testing process:

"[26] The record indicates that applicants' version of the test procedure was corroborated by Winter and Bechan. The urine samples were tested in the presence of the employees. The dipstick used to test the urine sample was placed on the box of the drug test kit which in turn was labeled with the employee's name. Photographs of the dipstick and the box bearing the name of the employee appear in the record. [27] The record provides evidence of a fair testing process. On the other hand, Mr. Toffie and Mr. Lettman's version was that there was a 'possibly of the results being mixed up or tampered with'. [28] The evidence does not support the second respondent's conclusion that the testing process was unfair. No evidence was introduced by Mr. Toffie or Mr. Lettman that the results were mixed up or tampered with. If there was any doubt in respect of the veracity of the results, it is unlikely that Mr. Toffie would have pleaded guilty to the charge."

[32]–[33] On the doctor's affidavit:

"[32] Lettman indicated that he had undergone another test with his doctor. This evidence was introduced at the arbitration by producing a short affidavit purportedly deposed to by the doctor. The doctor was not called to give evidence or to confirm the affidavit. The affidavit did not include a medical conclusion and only recorded that the drug kit used in the test also measured heroin opioids and morphine. The affidavit does not record the actual results of the test performed by the doctor... [33] Given the affidavit and the handwritten note produced by the doctor was challenged by the applicant on the basis that it believed that a different test had been used that was not designed to detect the same drugs detected in the applicant's test, the second respondent was unable to accept the affidavit and handwritten note as undisputed evidence... Minimal evidentiary weight should have been attached to this evidence."

[36]–[38] On the zero-tolerance policy:

"[36] In this case, the applicants elected not to dismiss those employees who tested positive for THC (cannabis) only. This decision was based on the fact that the private use of cannabis, had been decriminalized after the zero-tolerance policy was implemented. Given that THC can remain in a person's system for some time, it elected that dismissal for a first offense for testing positive for marijuana in these circumstances would be too harsh. For this reason, all individuals testing for THC only, were disciplined but were not dismissed. [37] Furthermore, there was no evidence led to show that a zero-tolerance policy for use of narcotics was unreasonable. The undisputed evidence of duties performed by Mr Toffie and Mr Lettman, support such a policy. [38] The second respondent's interpretation of the zero zero-tolerance policy in these circumstances was one that no reasonable decision maker could make and ignores the proportionality and appropriateness analysis that employers should undertake before considering an appropriate sanction."

[43] On workplace safety:

"[43] The Labour Court, when dealing with a breach of safety rules has concluded:- 'Safety of employees at the workplace is paramount, it cannot be compromised. An employer cannot expect to wait until an employee is maimed or has lost his or her life before taking decisive action against an employee who has exposed fellow employees to danger. Procedures which are intended to prevent injury and fatality, particularly in the mining industry, need to be complied with properly because the lapse has disastrous consequences. In exercising his power to determine the fairness of the (employee's) dismissal, the commissioner had to decide the appropriateness of the sanction of dismissal. His decision that dismissal was inappropriate disregards the value of the lives and safety of the employees, the third respondent had the responsibility of protecting. It is not supported by evidence before him. It constitutes a decision a reasonable decision maker could not reach on the facts before him and stands to be reviewed and set aside'"

[44] Review test:

"[44] Taking all the above into account, I am satisfied that the award is not one that a reasonable decision maker would make and that the award stands to be reviewed and set aside and the award should be substituted with an order that the dismissals of Mr Toffee and Mr Lettman were procedurally and substantively fair. I am guided by the following:- 'In summary, the position regarding a review of a CCMA is this; a review of the CCMA award is permissible if the defect in the proceedings fall within one of the grounds in Section 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity is contemplated by Section 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrive at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on the material that was before the arbitrator. Material errors of fact, as well as the relevance and weight needs to be attached to particular facts, are not and in of themselves sufficient for an order to be set aside but are only of any consequence if the effect is to render the outcome unreasonable.'"

Order

"(i) Application to review and set aside the award is granted. (ii) The award is substituted with a finding that the dismissals of both Mr Toffee and Mr Lettman were substantively and procedurally fair. (iii) No order as to costs."