It is interesting to note that this is a default award. Mr Shanya Marko (the Applicant) was present but Trojan Truck Systems (the Respondent) was absent from the hearing. The Applicant required compensation as relief.
The Applicant was employed by the Respondent as a wash bay attendant and on the 20th February 2014, he and a co-worker were taken to a doctor to be tested for drugs. The results of the test were that the Applicant tested positive for cannabis (dagga).
The Applicant was served with a charge sheet on the 27th February 2014 and was charged for reporting to duty whilst under the influence of cannabis (dagga).The disciplinary hearing was conducted on the 5th of March 2013. The outcome of the hearing was that the Applicant be dismissed with effect the 12th March 2014.
During arbitration the Applicant stated that he did not smoke the dagga at work, he had smoked the dagga with friends at a friend’s house. He further testified that he was not a regular user but wanted to “check out” the dagga and did not know why the Respondent chose to refer him and his colleague for testing. According to him he did not display any signs or odd behaviour to indicate that he was under the influence of drugs.
The Applicant believed that the Respondent had been looking for a way of dismissing him, especially since it intended on retrenching other staff. The Applicant was aware that dagga was an illegal drug and that possession or smoking of dagga was against the law.
The commissioner stated that the Applicant tendered his version in an open manner and that he had no reason to disbelieve or doubt the version of events. The applicant admitted that he was aware that smoking of dagga is illegal and he was not supposed to report to duty under the influence of drugs.
Even though the Respondent was not at the arbitration to put forward its side of the story, smoking of dagga is illegal and unlawful and an individual is subject to arrest if found in the possession of dagga, or if one is found smoking dagga that person is also subject to be arrested.
According to the commissioner an unlawful act cannot be remedied or justified by a lawful act as in this case in awarding compensation for a dismissal that is fair in relation to an act that is unlawful.
It was ruled that the dismissal of the Applicant was procedurally and substantively fair.