Drunkeness and dismissal

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1 Volume 23 No. 5 December 2013 Drunkeness and dismissal When zero tolerance is sometimes not enough Managing Editor : P.A.K. le Roux Hon. Consulting Editor: A.A. Landman Published by Box Tokai 7966 Tel: ISSN X cll@workplace.co.za by PAK le Roux O ne of the more regular, and difficult, disciplinary problems facing employers is having to deal with the use (or abuse) of alcohol by employees. From a disciplinary perspective, employers may introduce a range of rules regulating employees conduct in this regard. The two main rules most often used by employers are, a prohibition on being drunk on duty or being under the influence of alcohol whilst on duty or being intoxicated whilst on duty ; a prohibition on reporting for duty, or being on duty, whilst the level of alcohol in the employee s blood (usually as measured by a breathalyser) exceeds a certain limit. Both of these disciplinary rules pose their own challenges. As regards the first rule the problem is usually of an evidential nature. How does one establish that the employee is indeed under the influence and, if this is the case, how does one determine the degree thereof? The courts have accepted that it is not necessary to provide the formal evidence of an expert such as a medical practitioner who can utilise certain tests to assist in establishing an employee s condition. The evidence of lay persons is sufficient, provided that the person giving evidence to the effect that an employee is under the influence of alcohol is able to justify his or her opinion in this regard with reference to observable symptoms such as slurred speech, the smell of alcohol, unsteadiness etc. But this does raise its own problems. How reliable is the witness, was the witness in a position to make an accurate and informed assessment of the employee s conditions etc.? This was pointed out in the important case of Tanker Services (Pty) Limited v Magudulela [1997] 12 BLLR 1552 (LAC) in the following terms - There was inevitably a strong interpretative element in Naidoo s recital of the respondent s conduct. I do not mean this as a criticism of his evidence. We know from experience in the Page 43

2 courts how dramatically witnesses perceptions of the sobriety of another can vary. They vary because, apart from the accuracy of observation of the witness and the usual problems of inaccurate recall and recounting, the witness s perceptions are often coloured by what he or she considers to be socially and morally acceptable. But even if the witness evidence is clear and reliable the issue of the extent of the intoxication, and whether this affects the employee s ability to work, can arise. This is also evident from the following excerpt from the Tanker Services decision The difficulty with proving the charge brought against the respondent is that intoxication is a matter of degree. The respondent would only be under the influence of alcohol if he was no longer able to perform the tasks entrusted to him, and particularly the driving of a heavy vehicle, with the skill expected of a sober person. Whether an employee is, by reason of the consumption of intoxicating liquor, unable to perform a task entrusted to him by an employer must depend on the nature of the task. A farm labourer may still be able to work in the fields although he is too drunk to operate a tractor. Consumption of alcohol would make an airline pilot unfit for his job long before it made him unfit to ride a bicycle. The question which I should ask myself is, therefore, whether the respondent s faculties were shown in all probability to have been impaired to the extent that he could no longer properly perform the skilled, technically complex and highly responsible task of driving an extraordinarily heavy vehicle carrying a hazardous substance. This excerpt seems to accept that a person should only be regarded as being under the influence, and therefore capable of being subjected to disciplinary proceedings, if the degree of intoxication affects his ability to do his job and that much will depend on the nature of the job performed. This approach has been accepted in various decisions where it has been held that the dismissal of an employee was unfair because the employer had not established that the employee was under the influence of alcohol to such an extent that his ability to do his job was impaired. Because of the difficulties experienced in establishing that an employee is under the influence of alcohol as defined above, employers have resorted to the use of tests such as breathalyser tests in an attempt to show objectively that an employee is under the influence of alcohol. The difficulty, as some employers have discovered to their cost, is that a positive reading on a breathalyser is not a proof of intoxication. It simply measures the amount of alcohol in the employee s blood. Whilst a high reading may be evidence of intoxication this is not conclusive proof and other evidence of the physical condition of the employee will be necessary to establish intoxication. The difficulties of establishing that an employee is under the influence of alcohol has persuaded many employers to introduce another disciplinary rule, namely that an employee must not have a level of alcohol in the bloodstream (as measured by a breathalyser) that exceeds a certain limit when he reports for work or is at work. This disciplinary offence does not require that the employee is actually under the influence of alcohol - it merely requires that the employee must have more than the prescribed amount of alcohol in his blood. This type of rule is similar to that found in s 65 of the National Road Traffic Act, 93 of 1996 which prohibits the driving of a motor vehicle by a person who has a concentration of alcohol in any specimen of blood taken from any part of his or her body [which] is not less than 0,05 gram per 100 millilitres, or in the case of a professional driver referred to in section 32, not less than 0,02 gram per 100 millilitres. But at what level should the limit be set? Page 44

3 Should it reflect the limit set for drivers of motor vehicles or should it be lower? Many employers have adopted a strict approach, often reflected in policy which adopts a zero tolerance towards alcohol, in terms of which disciplinary steps are taken against employees who have low levels of alcohol concentration in their bloodstream. Can this approach be justified? This issue was considered in the recently reported arbitration award in General Industries Workers Union of SA on behalf of Thokoane v Lafarge Industries SA (Pty) Ltd (2013) 34 ILJ 2732 (BCA). The employee in this matter was employed as a fork lift driver. He was subjected to a breathalyser test when he reported for duty and this indicated that he had.05 gram of alcohol per 100 millilitres in his blood stream. The only indication that the employee was intoxicated was that his breath smelled of liquor but the outcome of the breathalyser test appears to have been confirmed by means of a blood test. The employee was charged with the disciplinary offence of being under the influence of alcohol while on company premises. This was based on a definition that defined being under the influence of alcohol as - The condition in which a person's sensory, cognitive or motor functions or capabilities are altered, impaired, diminished or affected due to alcohol or a controlled substance. An employee with any detectable presence of alcohol or drugs within the body, regardless of when or where it was consumed, will be considered under the influence. Alcohol limit 0.0 and drug limit 0. Although the first part of the definition echoes the requirement referred to above that a person s ability to function should be impaired, the latter part of the definition makes it clear that an employee could be disciplined if a breathalyser test establishes that he has any detectable amount of alcohol in his blood, no matter how small this is. This reflects the classic zero tolerance to alcohol approach adopted by many employers. The employee pleaded guilty to this offence and was dismissed. The chairperson of the disciplinary hearing motivated this decision on the ground that the employer had adopted a zero tolerance to alcohol rule this despite the fact that the employee had nine years service and a clean disciplinary record. The employee challenged the fairness of the dismissal and referred a dispute to the relevant bargaining council. He argued that the dismissal was unfair because of inconsistent treatment and because the sanction of dismissal had been too harsh. In the event, the arbitrator only considered the issue of sanction. The arbitrator found that the imposition of the sanction of dismissal was unfair in that it was too harsh. His reasoning can be summarised as follows It was absurd that an employee must face the ultimate sanction of dismissal simply because the employee had a blood alcohol content of.05 grams. The zero tolerance policy was quite excessive if one took into account that the employee would have been able to drive to work legally. There was no evidence to show that the employee s ability to perform his duties as a fork lift driver had been impaired. The rule that any amount of alcohol in the blood justifies dismissal was not rationally justifiable and fair. The arbitrator then argued as follows - [46] I certainly in terms of item 7(b)(i) of schedule 8 to the LRA regard the latter part of this definition of this zero-tolerance rule as invalid and unreasonable, should the employer interpret and implement such a rule as meaning that anyone who registers the slight- Page 45

4 est degree of alcohol in his/her blood must ipso facto be dismissed. [47] Surely, Lafarge also has zero tolerance to other forms of misconduct in the workplace and, although absenteeism, fighting, insolence, insubordination and so forth must be frowned upon, it does not necessarily mean that an employee should summarily be dismissed for such transgressions. Just inasmuch as the Labour Appeal Court recently distinguished between insubordination and gross insubordination, I am of the view that my function as a commissioner most certainly is not just to come and rubberstamp all alcohol cases for Lafarge as deserving of dismissal purely on the basis of its zerotolerance policy of 0.00mg alcohol in an employee's blood. Again, is this a reasonable rule when assessed against item 7(b)(i) of schedule 8 to the LRA? [48] Surely, had that been the case, it would defeat the very purpose of this arbitration? No evidence had been led to show that the trust relationship had been destroyed. The employer s own policy required a progressive approach towards discipline. The arbitrator ordered the reinstatement of the employee but limited the back pay payable to the employee to an amount equal to two months salary. A final written warning was also imposed. Comment Although there are passages in the award that may indicate that the arbitrator thought otherwise, the award seems to accept the validity of a rule that reporting for duty, or being on duty, with a minimal amount of alcohol in one s blood can constitute a disciplinary offence. This was a valid rule as required by item 7(b) (i) of the Code of Good Practice: Dismissal. This is, it is submitted, correct. Given the health and safety risks associated with the consumption of alcohol and the difficulties that may arise as to extent to which the consumption of alcohol may impact on the ability to perform work, or to perform work safely, a rule that takes into account the amount of alcohol in the bloodstream rather than whether or not the employee was under the influence of alcohol can be justified. What is perhaps debatable is that the arbitrator did not seem to regard the level of alcohol found to be present in the employee s blood as significant. This was not a case where the level of alcohol in the employee s blood was minimal. The argument that the employee may have been entitled to drive his car to work legally is, with respect, simply unacceptable. What would be an acceptable level of alcohol in the blood would have to be determined with reference to the circumstances of the workplace and not on the basis of this comparison. In any event it ignores the fact that the legally permitted limit for professional drivers is the much lower level 02 grams per 100 millilitres a much more relevant comparison for a fork lift driver. What concerned the arbitrator was not the validity of the rule but rather the sanction that was imposed. In other words, the sanction of dismissal was not an appropriate sanction in the circumstances as required by item 7(b)(iv) of the Code of Good Practice: Dismissal. If this approach is to be followed by other arbitrators employers will have to take greater care in justifying not only why it may discipline employees for having low levels of alcohol in their blood when tested (i.e the validity of the rule) but why dismissal would be the virtually automatic sanction. Here the nature of the workplace and the health and safety risks involved should be considered. But it is interesting to note that in at least one decision, namely African Explosives v Com- Page 46

5 mission for Conciliation, Mediation & Arbitration & Others (Unreported 2207/03 11/4/05) the Labour Appeal Court accepted that the sanction of dismissal could be utilised for first such an offence. The employee in this matter had undergone two breathalyser tests which showed that he had high levels of alcohol in his blood. He was charged with intoxication and dismissed. This was based on the provisions of the employer s disciplinary policy that, after indicating that the real test as to what constituted intoxication was whether the employee was capable of performing his or her tasks competently, went on to state that any reading above zero (0.00) is regarded as being positive. The commissioner found that the dismissal was unfair. He found that no evidence had been provided to persuade him that the employee was under the influence of alcohol. He also stated that Zero tolerance, in my humble opinion, does not mean total abdication from alcohol, which on its own is not illicit, rather it means that one shall not consume beyond the limitation especially at work or when driving. The respondent and the Union need to agree on what is not permissible to cease undue arguments on consistency forever and the relevant statutes must guide any agreement to be reached on this. This decision was taken on review by the employer and the matter was eventually considered by the Labour Appeal Court (LAC). The LAC overturned the award on the basis that the commissioner had failed to consider the employer s policy to the effect that an employee would be regarded as being under the influence of alcohol if the breathalyser test established any reading above 0.00 grams per 100 millilitres. The debate whether an employer is entitled to insist that employees should have no alcohol in their blood whatsoever when they report for work, and whether an employer is entitled to discipline an employee who is found to have such a relatively small of amount of alcohol in his blood will probably continue. What can be stated on the strength of the above two cases is that the legitimacy of such a rule is accepted (at least where health and safety concerns are present). This is, it is submitted, the correct approach. Given the fact that whether or not a person is intoxicated involves an opinion or judgment expressed by witnesses and given the fact that it may often be difficult to determine whether the level of intoxication means that the employee can do his job, a more objective test may be more suitable. This is, of course, subject to the proviso that the test is properly administered with properly calibrated equipment by properly trained personnel. Where the debate seems to lie is in the area of sanction. What will the appropriate sanction be for contravening such a rule? Even here, it is submitted, a relatively strict approach in sectors such as mining where health and safety considerations are paramount, can be justified. Finally, the question can be asked whether the debate about alcohol levels in the blood does not, at least in part, arise from the unduly restrictive definition of intoxication adopted in the Tanker Services decision? It is submitted that the mere fact that the degree of intoxication does not prevent the employee from doing his job does not necessarily prevent disciplinary action from being taken. For example, an employee who works in full view of the public may still be able to do her job despite a degree of intoxication, but may still cause significant embarrassment and even prejudice to the employer if her condition can be witnessed by a client or customers. Of course, it may be an inherent part of an employee s job to appear in a presentable condition to a client or customer but what if the em- Page 47

6 ployee does not ordinarily have contact with customers, but may still be seen by them in certain circumstances? An employee s condition may also be disruptive in the workplace even if he can still do his job. The issue of consistency also arises. Many employers, including multi-national employers in the mining industry, also apply strict rules relating to alcohol across the board to all employees. A senior or middle manager at head office, who may still adequately perform his duties even if he has consumed a significant amount of alcohol, is required to conform to the same rules as an employee in the mine or factory of the company on the basis that they should set an example and should be seen to support and comply with health and safety rules. There seems to be nothing wrong with such an approach. Once again, however, the issue of the appropriate sanction to be applied may arise. P.A.K. Le Roux The consequences of unprotected strikes and ignored interdicts Are they becoming more onerous? by P.A.K. Le Roux I n his Tim Mills Memorial Lecture earlier this year, Anton Myburgh SC addressed the issue of the increasing tendency of employees to embark on unprotected (and often violent) strikes and their failure to obey court orders. (See CLL Vol 23 No 1) He made various suggestions in this regard. Two of them are relevant to this contribution. The first was that it was possible that the Courts would take a less lenient approach to employees who embark on unprotected strike action and be more willing to uphold the fairness of their dismissals. The second was that the Courts may be prepared to grant higher compensation awards in terms of s 68(1) of the Labour Relations Act, 66 of 1995 (LRA) against unions and their members that embark on an unprotected strike. (For a discussion in this regard see CLL Vol 23 no 2.) Two recent decisions, one of the Labour Court and one of the Labour Appeal Court (LAC) present what appear to be contrasting approaches to these possibilities. In2Food (Pty) Ltd v Food & Allied Workers Union & Others (2013) 34 ILJ 2589 (LC) T he employees in this matter participated in an unprotected strike that endured for two weeks. On the same day that the strike commenced the Labour Court granted an interim order restraining and interdicting the employees and their union, the Food & Allied Workers Union (FAWU), from continuing with their strike action and from harassing, threatening, assaulting or intimidating any non-striking employees. They were also interdicted from blocking access to the premises and from carrying weapons. This interdict was ignored the strike continued and was accompanied by numerous acts of violence and damage to property. Nine days later the employer again approached the Labour Court for an interim order declaring that FAWU and the employees were in contempt of court for failing to comply with the earlier order. An order was issued in terms of which FAWU and the employees were called upon to Page 48

7 show cause why a final order should not be granted holding them in contempt of court, committing the employees to a jail term of 180 days and ordering the union to pay a fine of R On the return date the employer s legal representative indicated that the interim order had not been served on some of the employees and that those who had been identified as committing acts of misconduct had already been dismissed. He conceded that it would serve little purpose to proceed against these employees but did persist with the claim that FAWU be fined. The Court accepted this argument and imposed a fine of R The Court stated that this amount was not unreasonable in the light of the fact that the employer had suffered a loss of R16 million as a result of the actions of employees during the course of a the strike. Of importance is the following excerpt from the decision - The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members. This in a context where the Labour Relations Act 66 of 1995, which has now come into existence for some 17 years and of which trade unions, their office-bearers and their members are well aware, makes it extremely easy to go on a protected strike, as it should be in a context where the right to strike is a constitutionally protected right. However, that right is not without limitations. Firstly, the proper procedures set out in s64 of the LRA should be followed. And secondly, it must be in line with the constitutional right to assemble and to picket peacefully and unarmed, as entrenched in s17 of the Bill of Rights. Very simply, there is no justification for the type of violent action that the respondents have engaged in in this instance. And alarmingly, on the evidence before me, the union and its officials have not taken sufficient steps to dissuade and prevent their members from continuing with their violent and unlawful actions. (At 2591H- 2592A) Whilst it is important to note that this decision deals with the imposition of a fine for not complying with a court order, it nevertheless is perhaps an indication that the Labour Court will be willing to grant higher awards of compensation in terms of s 68 of the LRA, especially if one takes into account the fact that, when exercising its powers in terms of this section, one of the factors that the Court must consider is whether there has been compliance with any applicable court order. Also of importance is the emphasis placed on the duty of a union to at least attempt to prevent violent and unlawful actions committed by its members. There is no reason why this should also not apply to a union if its officials do not take reasonable steps to prevent an unprotected strike. National Union of Metalworkers of South Africa & Others v CBI Electric Cables (unreported JS695/07 11/10/2013) D uring May 2007, and after protracted negotiations with a recognised union, the National Union of Metalworkers of South Africa (NUMSA), the employer in this matter introduced a new shift system in its plant. This led to an unprotected strike in breach of a Labour Court order and the employees were dismissed. An agreement was then reached between NUMSA and the employer which led to the reinstatement of the dismissed employees on the basis that they were given final written warnings and that they undertook to work the new shift system. On 25 June 2007, the first pay day after the introduction of the new system, the employees received their payslips. The payslips contained errors and at least some employees received less pay than they were entitled to. The employer took steps to correct the situation but this did not prevent the day shift from participating in work stoppages during the course of their shift. Page 49

8 It appears that management received information that similar actions would occur during the course of the next two shifts. This information indicated that the employees would embark on these actions because they were unhappy with the new shift system rather than because of the incorrect payslips or payments. At about 18h00 on the 25 June 2007 management prepared an ultimatum which was handed to the night shift employees who reported for work at 18h00. This indicated -. that unless employees follow the new shift system and report for duty on their next scheduled shift, they will receive a letter of dismissal. Please note that this is the final ultimatum for the current shift as well as for the other two shifts Prior to this notice being issued the employer attempted to contact the union official it usually dealt with. He could not be contacted; the ultimatum was then faxed to the union s office. Despite the ultimatum, the night shift employees stopped working at 22h00 and left the premises. At a meeting held between management and union representatives convened the next day, 26 June 2007, the employer took the view that the cause of the strike was the new shift system and that, given the history of the matter, the employees should be dismissed. The union insisted that the strike had been caused by the fact that the payslips had not been issued in time and reflected deductions for which there was no explanation. The employer rejected the union s contentions and dismissed the employees. The employees lodged an internal appeal during which it was argued that they had not been given an opportunity to be heard prior to the dismissal. The appeal was rejected and litigation ensued in the Labour Court. The Labour Court accepted that, although there was some connection between the shift system dispute and the issue of payslips, the catalyst for the strike was the errors on the payslips and the short payments made. It found that the dismissals were substantively fair. As far as procedural fairness was concerned, it rejected the argument that there had been procedural unfairness because the employees had not been given an opportunity to be heard prior to the sanction of dismissal being imposed. This was on the basis that this issue had been sufficiently addressed at the meeting on 26 June 2007 the day after the strike. The dismissals were, however, found to be procedurally unfair because the employer had not discussed the possibility of dismissals with the union concerned prior to the ultimatum being issued. The Court ordered the payment of a limited amount of compensation for the procedural unfairness. NUMSA took this decision on appeal to the Labour Appeal Court (LAC). It raised three points. The first was that, despite the fact that the strike was unprotected, the dismissals were substantively unfair because the strike had been a justified reaction to the employer s incompetent and grossly irresponsible conduct. The second was one of inconsistent treatment in that the morning shift had not been dismissed they had only received final written warnings. The third argument dealt with procedural unfairness it was argued that the meeting on 26 June 2007 had been called by NUMSA rather than the employer. It was not called in order to provide the employees and their union with an opportunity to be heard prior to a decision on sanction being taken. The LAC accepted the Labour Court s views as to the cause of the strike and the substantive fairness thereof. It rejected NUMSA s arguments that the strike was justified in the following terms [38] The Court a quo s reasoning for its finding cannot be faulted. The night shift employees decision to leave their workstations at 22h00 and before the end of their shift constituted a misconduct for which they were li- Page 50

9 able to be disciplined. While I accept that the respondent s failure to pay the employees correctly for the hours they had worked triggered the employees response, I do not, however, agree that the means they employed justified the end they sought to achieve. Abandoning their work stations and leaving the respondent s premises was not a conduct, which in all the circumstances of the case, could be said to have been a reasonable means by which to respond to the respondent s failure to comply with its contractual obligations. Other less disruptive and nonbelligerent ways to resolve the issue were available to the employees. There is no evidence that their abandonment of their workstations was coupled with any demand or grievance. [39] Their conduct was deliberate and calculated. It undermined the process of collective bargaining as a tool to resolve industrial disputes. When they reported for their shift they were appraised of the nature of the problem regarding short payment of their wages and were told that it was being attended to by the respondent s management. They were told to report for their shift and warned that if they failed to do so they faced the risk of dismissal. They were given an ultimatum which they ignored. They decided to walk off at 22h00 to show solidarity with the day shift. Their collective decision to walk off at 22h00 was taken before they filed any grievance. There was no attempt at all on their part to comply with the provisions of the Act regarding the handling of grievances. The employees contention that they were justified in leaving their shift early because of the respondent s failure to pay them correctly, is according rejected. The LAC also rejected the argument that the employer had acted inconsistently by dismissing the night shift and not dismissing the day shift. There was a valid reason for differentiating between the two shifts. The night shift had received an ultimatum and had ignored it. Their conduct was more reprehensible than that of the day shift in that it was deliberate and calculated. The LAC nevertheless found that the dismissals were procedurally unfair. This was for two reasons. The first was because the employer had not engaged with the union prior to issuing an ultimatum. Such an engagement was, in the view of the Court, required in order to afford the union an opportunity to persuade the strikers not to strike and to provide a safeguard against rash employer action. The second was that the meeting on 26 June 2007 did not provide an opportunity to be heard prior to the dismissals. The employer s representative had already received a mandate to dismiss the strikers and the die had been cast in this regard. Because the dismissal was only found to be procedurally unfair, reinstatement as a remedy was not competent. The LAC ordered the payment of compensation equal to a year s salary for every dismissed employee. Comment The In2Food decision constitutes a clear indication from the Labour Court that unions that countenance violent and unlawful actions during the course of a strike and who do not take steps to ensure that court orders are complied with can expect little sympathy from the Labour Court. It is submitted that this could also apply where an employer is claiming compensation or damages for losses caused during the course of a strike whether arising from the unprotected strike itself or from the actions of employees during the course of the strike. The CBI Electric Cables decision is more ambivalent in this regard. On the one hand it finds that the dismissals were substantively fair, this in circumstances where it might arguably have been found that the employer caused the strike through its failure to pay the employees properly. The importance of utilising grievance procedures and attempting to utilise less disruptive methods of resolving problems is emphasised. On the other hand, the employer was ordered to pay a startling full year s compensation to each dismissed employee on the grounds of proce- Page 51

10 dural unfairness - this in the situation where it found that the employees had ignored an ultimatum, that their conduct was deliberate and calculated, that the strike undermined collective bargaining and that the strike was an unreasonable reaction to the pay problems. The payment of this amount was justified on the basis that the strike was of a relatively short duration, the fact that the strike was in response to the employer s failure to pay the employees their correct remuneration and that the employer had taken no steps to bring the ultimatum to the intention of NUMSA when it became clear that the union official dealing with the matter could not be contacted. The Court expressed the view that it was probable that the strike would have been avoided had the employer engaged with a union official before issuing an ultimatum. The Court appears to accept that the employer had attempted to contact the union official that it usually dealt with but was not successful in doing so, but does not indicate what other steps the employer could have taken in the situation where the strike took place after working hours. It also does not indicate on what evidence it based its view that the strike may have been avoided if there had been engagement with a union official. The first two reasons given seem, with respect, to be more relevant in deciding on the substantive fairness of the dismissals rather than procedural fairness. The third reason deals with the requirement that employees are entitled to state a case prior to being dismissed. The Court s approach to this requirement is unclear. It is settled law that unprotected strikers are entitled to state a case prior to their dismissal. The leading case in this regard is Modise & Others v Steve s Spar Blackheath (2000) 21 ILJ 519 LAC). When this opportunity has to be provided was left open by the Court in the Steve s Spar decision but it did express a preference for the view that it should take place prior to the ultimatum being given. In National Union of Mineworkers & Others v Billard Contractors CC & Another (2006) 27 ILJ 1686 (LC) the Labour Court appears to have accepted that the hearing must be provided prior to the issuing of the ultimatum. The CBI Electrical Cables decision also now seems to accept that the hearing should take place prior to the ultimatum being issued. In the words of the LAC it was incumbent on the respondent to engage with the union before issuing the ultimatum on 25 June (Emphasis added) However, there is a later passage in the LAC decision which seems to imply a different approach. The LAC rejects the argument that the meeting that took place on 26 June 2007 provided the employees with an opportunity to be heard. This was not on the basis that the opportunity to be heard should have been provided prior to the ultimatum being issued, but on the basis that by the time that the hearing had taken place the employer had already taken a firm decision to dismiss the workers - the implication being that if it had been established that the employer had approached the issue of dismissal with an open mind at the meeting this would have satisfied the requirement for a fair hearing. There is another more disturbing interpretation of this case, namely that an employer now not only has a duty to provide a hearing prior to issuing an ultimatum but also to provide a further hearing after the ultimatum has expired in order to determine whether dismissal should take place. Whether this was the intention is not clear. It is true that the Billard decision did envisage another hearing but the purpose of this hearing, as envisaged by the Judge in the Billard decision, was to consider representations made by individual employees to the effect that they did in fact comply with the ultimatum or had good reasons for not doing so e.g they were on leave or were ill. This is perhaps what the LAC had in mind here. But even if this is the case, Billard accepts that such a hearing could be held after dismissal. P.A.K. Le Roux Page 52