EC Lenning Limited t/a Besaans Du Plessis Foundries v Pieter Engelbrecht (JA69/98) [1999] ZALAC 11 (24 June 1999)

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[1999] ZALAC 11
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EC Lenning Limited t/a Besaans Du Plessis Foundries v Engelbrecht (JA69/98) [1999] ZALAC 11; (1999) 20 ILJ 2516 (LAC) (24 June 1999)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO.:JA69/98
In
the matter between:
EC
LENNING LIMITED t/a BESAANS DU PLESSIS
FOUNDRIES
Appellant
and
PIETER
ENGELBRECHT
Respondent
JUDGMENT
CONRADIE JA
[1] Pieter Engelbrecht, the
respondent, worked in the appellant
=
s
foundry for close on twenty years. By the time of his dismissal for
incapacity due to chronic lung damage contracted as a result
of
exposure to dust in his workplace, he had risen to the position of
superviser. It is common cause that the respondent handed to
Ms
Donald, the appellant
=
s
personnel manager, a note from his medical practitioner, Dr Wyers,
reading as follows:
“
Onlangs deur Dr GB Irsigler
evalueer met aanbeveling as volg:
(1) Peter is ongeskik om sy
vorige werksverpligting te hervat;
(2) Die bepaling geld
onbepaald.
Ons doen hiermee aansoek vir sy
ongeskiktheidspensioen en mediese voordeel wat hom mag toekom”.
[2] The appellant contends that
following the handing over of the note Donald explained to the
respondent that before becoming entitled
to his disability pension
from the Metal and Engineering Industries Permanent Disability Scheme
(‘the Scheme’) his services would
have to be terminated. It is
her evidence that the respondent agreed to this procedure, saying
A
ek
is nou klaar, ek kan nie meer werk nie.
@
The respondent
=
s
version is that, on meeting Donald, he was confronted with a decision
that he was to be dismissed from his employment.
[3] The presiding officer in
the court
a quo
found that Donald had misread the note from
Dr Weyers. She interpreted it to mean that the respondent was
incapacitated to the
extent of being unemployable. She then set in
motion the steps which she considered necessary for ensuring that
the respondent
received his disability pension. The first of these
steps, she thought, had to be his dismissal; he could not apply for
a disability
pension while he was still employed; having received Dr
Weyers’s note the day before her interview with the respondent,
she informed
him of the steps she had taken or proposed taking.
[4] If Donald had not misread
the Doctor’s note in this way, the respondent may not have
received (as he ultimately did) any disability
benefits from the
scheme. A scheme member who had been permanently disabled for an
uninterrupted period of six complete months
became entitled to
certain benefits depending on his years of service in the metal
industries. In the case of the respondent this
was 75% of his
remuneration at the date of his ceasing employment due to permanent
disability. Permanent Disability in terms of
the Scheme rules meant
‘a Member becoming permanently disabled or incapacitated and not
being able to engage in further employment
in whatsoever capacity in
the Industries.’ A threshold requirement of the Scheme rules is
permanent total disability. Ms Donald,
from her own observation,
gained the impression that the respondent was totally disabled. Dr
Weyers’s note would have informed
her that his disability was
permanent . If she had studied the note more closely she would have
seen that it indicated no more
than that the respondent was
(permanently) incapable of resuming his previous work. This is also
the respondent’s case. He testified
that he was not totally
disabled, and that, realising this, Donald should have given him the
opportunity of discussing with her
the possibility of remaining on
in the appellant’s employ, working in a less noxious environment.
[5] An exploration of this
possibility would have been fair, not only to the respondent but
also to the Scheme and its members.
It would have been fair to the
respondent because it would have helped him to maintain the
self-esteem which is provided by holding
down a job. It would have
been fair to the Scheme (and ultimately to the appellant which is a
contributor to it) because it would
not have been required to lay
out a disability income benefit in circumstances where none were
payable.
[6] The duty on the appellant
to explore these possibilities and to offer the respondent an
alternative job if it was at all able
to do so was an onerous one:
the occupational disease from which the latter which suffered had
been contracted while working for
his employer. This is the approach
which has been adopted by the industrial court. I have no doubt that
it is the correct one.
(
Davies v Clean Deale CC
(1992) 13 ILJ
1230 (IC) at 1232 E - 1233 B; followed in
Food Workers’ Council
of SA & Another v SA Breweries Ltd
(1992) 13 ILJ 204 (IC) at
208 D - I.) It has been approved by the labour appeal court in
Num
& Nongalo v Libanon Gold Mining Co Ltd
(1994) 5 (1) SALLR 26
(LAC) at 28 H – J.) The initiative should have come from the
employer and the employer should have guided
the discussions. The
respondent’s remark that he was finished and could no longer work,
was so laconic that it cried out for
further elucidation and, in any
event, was contradicted by the medical certificate.
[7] Donald also erred in
another respect. She thought that for the respondent to become
entitled to benefits from the Scheme, he
had to be dismissed. Mr.
Barrie, who appeared before us for the appellant, conceded that this
had been a mistaken view of the legal
situation. The respondent had
to have been incapacitated for six months. Assuming him to have been
permanently totally disabled,
there was no obligation on the
appellant to employ him for another six months, let alone to employ
him at his full remuneration.
The fact that the respondent was
dismissed immediately, rather than when his disability grant became
payable, therefore had no
adverse patrimonial consequences for him.
The additional member in the court
a quo
seems to have
thought that it did. He considered that ‘fairness and equity
demand that he be compensated for the period that
he was without an
income up to until March 1997 when he first received his disability
grant.’ This reasoning cannot be supported.
There is no evidence
to show that the respondent would have received an income for those
six months if he had not been dismissed.
The additional member went
even further . He awarded the respondent ‘25% of the monthly
salary calculated from March 1997 to
August 1998.’ The
determination is dated 4 September 1998. This (unascertained) amount
was awarded as ‘a
solatium
for the injust (read; unjust)
manner in which he was treated by the respondent after 18 years of
loyal service, and also taking
into account that his medical
condition was as a result of the years of service he committed to
the Respondent.’ The determination,
in total, is equal to ten and
a half months’ income.
[8] In my view the respondent
has been overcompensated by the industrial court. The case presents
a number of unusual features.
If the respondent’s claim for
permanent total disability had not been (wrongly) supported by the
appellant, he might or might
not have been given a job which might,
but probably would not, have yielded the same income as the job
which he had been obliged
to quit. If the appellant could not have
found an alternative job for the respondent he would have been
dismissed without disability
income benefit from the Scheme. He
would then have been without an income and would, patrimonially,
have been much worse off. The
appellant could not, having first
unsuccessfully tried to find the respondent an alternative job, have
assisted him in making application
to the Scheme for a permanent
total disability grant. That would have been in contravention of the
Scheme rule regarding payment
to disabled members.
[9] Mr. Barrie strenuously
argued that there had been no dismissal but rather a consensual
termination of employment in the nature
of a resignation, and that,
under these circumstances, there had been no obligation on the part
of the appellant to discuss alternatives
with the respondent. He
relied heavily on the words in the note of Dr Weyers ‘Ons doen
hiermee aansoek vir sy ongesiktheidspensioen
en mediese voordeel wat
hom mag toekom.’ I am not satisfied that one can construe a
consensual termination from this request.
Properly understood, the
note says no more than that the respondent would like his permanent
disability benefits to be paid if
he should be dismissed for
incapacity. In correspondence which subsequently ensued between
Donald and a labour consultant representing
the respondent, it was
not suggested by Donald that she understood there to have been a
consensual termination. She consistently
in her letters referred to
it as a dismissal. I think that the dismissal was procedurally
unfair.
[10] We now have the very
curious circumstance that the appellant’s commission of an unfair
labour practice has yielded the respondent
an undeserved benefit. He
said in his evidence in the industrial court that he was well enough
to work and would, in fact, like
the appellant to re-employ him.
Rule 3(4) of the Scheme rules provides that a member in receipt of a
permanent disability income
benefit may at any time be examined by a
medical practitioner appointed or approved by the Scheme’s board.
If the board decides
that the medical examination shows that the
member is ‘capable of engaging in further employment in any
capacity in the Industries,’
the board may direct that his
permanent disability benefit shall cease. Having regard to what may
occur if the appellant’s evidence
comes to the notice of the
Scheme’s board, it would be presumptuous to suppose that the
income benefit will continue.
[11] Assuming that an employee
who is unfairly dismissed and immediately finds a better paid job
with better prospects is nonetheless
entitled to compensation for
the unfair labour practice, the only function of an award in his
favour in the absence of an
injuria
, would be to remind the
employer not to do it again. If the employer had not seriously
misbehaved, such an award would be small.
In casu
the
appellant did not act disgracefully. There was no
injuria
.
There was a silly misunderstanding. Well directed discussions with
the respondent would have cleared it up. Such discussions were
not
held. I think that they should have been, but this was the
employer’s only lapse. It was not a big one. It was not
contumelious
. It should not be censured by substantial
solatium
. In my view it would have been quite enough if the
respondent had been awarded the equivalent of two months’ wages.
[12] The respondent’s heads
of argument were delivered late. The explanation for the delay in
the delivery of the heads is so
unsatisfactory that one is tempted
to think that it is not altogether honest. The court’s dismay with
the delay and the derisory
explanation for it should find expression
in the costs order.
[15] The appellant has
achieved a substantial measure of success on appeal. It has not,
however, succeeded in overturning the judgment
in the court
a
quo
. It would, bearing in mind, also, what I said about the
condonation application, be in accordance with the law and fairness
if
each party were to pay its own costs on appeal. Indeed, Mr.
Barrie indicated that the appellant would not ask for costs on
appeal.
Since it is necessary to make certain other adjustments to
the determination, it would be expedient to set it aside and
substitute
our own order for it.
A.
The appeal succeeds in
part. The determination of the industrial court is replaced by the
following order:
1.
The termination of the
applicant
=
s
services by the respondent was an unfair labour practice.
3.
The respondent is to
pay to the applicant an amount of
R6615.18.
3.
There is no order as
to costs.
@
B. Each party pays its own
costs of the appeal.
_________________
CONRADIE JA
I agree
____________
NGCOBO AJP
I agree
­­­­­­­­­­­­­­­­­­­______________
FRONEMAN DJP
DATE
OF HEARING:
22 June
1999
DATE
OF JUDGMENT:
24 June
1999
APPLICANT’S
REPRESENTATIVE:
Adv
Barrie
RESPONDENT’S
REPRESENTATIVE:
Adv
Beaton
Appellant’s attorney:
Mr. G Higgins from
Sampson Okes Higgins Inc.
Respondent’s attorney:
Ms. R Jordaan form Rita
Jordaan Attorneys