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[2007] ZALAC 32
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Trident Steel (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others (DA 14/05) [2007] ZALAC 32 (1 January 2007)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. DA 14/05
In
the matter between
TRIDENT
STEEL (PTY) LIMITED
..............................................................
APPELLANT
AND
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
.............................................................
FIRST
RESPONDENT
R
LYSTER N.O.
.....................................................................
SECOND
RESPONDENT
C
TITHER
...................................................................................
THIRD
RESPONDENT
JUDGMENT
JAPPIE
AJA
[1] The appellant, Trident Steel (Pty)
Ltd, appeals against the judgment of Ngcamu AJ sitting in the Labour
Court, in which judgment
that court dismissed an application for the
review of an arbitration award issued by the second respondent, R.
Lyster, in which
he found that the dismissal of the third respondent,
Caron Tither, by the appellant was unfair and ordered her
reinstatement into
her former position in the appellant’s
employment.
[2] The witnesses who testified before
the second respondent were Mr Johan Nel, the director of the Durban
branch of the appellant
and the third respondent. The facts are
largely common cause.
[3] In March 2000 the third respondent
was employed by the appellant as a telesales assistant. The position
was a full-day position,
and involved the use of a computer and the
handling of sales via the telephone. Approximately some six months
after commencing
with her employment, the third respondent developed
severe neck pain. It was in nearly that the appellant was made aware
of the
third respondent’s condition.
[4] According to Nel, when the third
respondent’s condition appeared to worsen, he recommended that
she should consult a physiotherapist.
Other medical practitioners
were also consulted amongst whom was a surgeon, Dr Golek. The
consensus of the doctors was that the
third respondent’s work
station caused the problem which was further aggravated by her
working on a computer for a full day.
The appellant attempted to
address the problem by (i) providing the third respondent with a new
chair, (ii) by making adjustment
were made to the computer, (iii) by
making headset for the third respondent so that the third she would
not have to cradle the
telephone in her neck while typing.
[5] When none of these measures
referred above appeared to be effective, the appellant allowed the
third respondent to work half
a day for approximately six months to
assist her in her recuperation. This was a temporary measure and it
assisted in alleviating
the third respondent’s discomfort to a
large extent. According to Nel it became clear that the third
respondent could not
do a full day’s work. The third respondent
had taken all her sick leave and. In addition to this, the appellant
had allowed
her sixty seven (67) instances of half-day leave from
January to June 2003.
[6] In May 2003 Nel discussed the
situation with the third respondent who made it clear that she could
not do a full days work.
Nel informed her that the appellant did not
have a half day job for her. As her job involved telesales customers
did not only phone
in the morning to order steel, but did so in the
course of the afternoon as well. All the other positions with the
appellant were
for full day jobs. The third respondent made it clear
that she could only work for half a day and that she could not cope
“working
a full day at a computer”.
[7] The third respondent then made an
application to the company’s insurers (Sage Life) to ascertain
whether she could be
medically boarded. This proved unsuccessful as
the insurers took the view that on the medical information the third
respondent
did not have a valid disability which would have entitled
her to be medically boarded.
[8] The third respondent in her
evidence said that she had many discussions with Nel and that he had
always been kind and supportive
to her. She confirmed that she had
taken far more than sixty seven (67) half days off. She had worked
continuously on a half a
day basis from January until June. She
testified that the half a day arrangement did not really help her and
that she was never
100%. Towards the end of May she was advised that
the appellant could not have her working half a day any more. On the
21
st
May 2003 Nel wrote to the head office of the
appellant explaining the third respondent’s position. Attached
to this was a
letter from the third respondent in which she made it
clear that she considered the alternative of a half a day position as
the
only solution.
[9] On the 27
th
June, the
appellant wrote to the third respondent informing her that it had
done everything in its power to assist her. The letter
listed all the
instances in which the appellant had assisted the third respondent
with regard to time off for specialist assessment
and therapy. The
letter concluded by saying that there was no half-day position
available and that, as she was employed on a full
day basis and
because of her inability to perform her contractual duties, her
services were terminated.
[10] The third respondent further
testified that, as the position of a receptionist did not require her
to use a computer, she could
have done this job. Under
cross-examination she was asked whether she would have taken the
receptionist job with a lower salary.
She responded by saying that
she would have negotiated with the appellant concerning this and that
she been prepared to do sales
in the morning and the work of a
reception in the afternoon. She conceded that she did not suggest
this to the appellant. When
it was pointed out to her that the
receptionist’s job was not vacant, she did not dispute this but
went on to say that Nel
had always been understanding and that the
appellant had been fair in doing as much as possible in regard to her
health.
[11] It was common cause that after
the third respondent had been dismissed, the receptionist applied for
and was appointed to the
position previously occupied by the third
respondent. A temporary receptionist was then employed. At no stage
had it been considered
that the third respondent could perform a dual
role as a salesperson in the morning and as a receptionist in the
afternoon.
[12] In his assessment of the issues
before him, the second respondent made reference to clause 10 of the
Code of Good Practice
(schedule 8 of the LRA) and based on this he
concluded that although the appellant had been supportive and
sympathetic to the third
respondent it had not made sufficient
attempts to investigate the extent to which the third respondent’s
duties might be
adopted or the availability of suitable alternative
work.
[13] As the third respondent’s
suggestion that she be moved to the vacant post of a receptionist had
not been considered and
had it been suggested, the possibility was
there that the third respondent would have accepted that offer. In
consequence of the
a foregoing, the second respondent determined:-
“
In these
particular circumstances, I feel that, in spite of its generally
reasonable approach, the respondents (appellants) failure
to even
consider or put forward the possibility of the shared receptionist
position, was unreasonable and unfair, and I make an
order
re-instating the applicant (the third respondent) into her former
position, as a full sales assistant, such reinstatement
to be with
effect from 16
th
February 2004, from 16 December 2004 ie a maximum of two month
remuneration shall be payable to the applicant (third respondent).”
[14] The appellant thereafter, sought
to have the second respondent’s award reviewed and set aside by
the Labour Court. The
application was heard by Ngcamu A J in the
Labour Court who dismissed the application. In his judgment, Ngcamu A
J concluded:
“
[9] The failure by
the applicant to consider moving the respondent to the receptionist
is an indication that an alternative was
not considered.”
[12] It was further
submitted that the commissioner reinstated the respondent to her
position, knowing that she could not do the
job. It is not correct
that the respondent could not do her job or her function. The point
is that she could not fulfill the functions
if performing the same
functions the whole day but she could fulfill her functions if
working on the computer half a day. The second
part of the day could
be adapted. The award gives the applicant an opportunity to consider
what it had failed to do.”
[15] The appellant sought and was
refused leave to appeal by the court a quo. The appellant petitioned
this court, and was then
granted leave to appeal.
[16] Before this court, the thrust of
the argument by counsel who appeared for the appellant was that both
the second respondent
and the court a quo had erred in concluding
that the appellant’s failure to consider moving the third
respondent to the position
of the receptionist was unfair. It was
argued that both the second respondent and the court a quo failed to
note that the position
of the receptionist only became available
after the third respondent had been dismissed. It was further argued
that the receptionist
position was simply not considered since it was
a different job with entirely different specifications. Furthermore,
the salary
paid to the receptionist was less than half of that paid
to a sales assistant.
[17] The attorney, who appeared for
the third respondent argued that on all the evidence the appellant
had failed to investigate
alternative positions for the third
respondent notwithstanding the fact that she had specifically advised
of her willingness to
perform any other job function. I need to point
out immediately that this suggestion that the appellant had advised
the third respondent
that she was willing to do any job is not born
out by the evidence on the record.
[18] He further argued that at the
very least, the failure to have considered an adaptation of her
duties or work circumstances
to accommodate her disability as
required in terms of the Code of Good Practice relating to dismissal
is a procedural irregularity
justifying the conclusion that dismissal
was procedurally unfair. He further argued that on the evidence no
good reason was advanced
for the appellant’s failure to
consider the possibility of a shared position between the third
respondent and the receptionist.
By this it is understood that what
was being suggested is that the third respondent would perform the
duties of a telesales person
in the morning, and in the afternoon she
would swap with the receptionist and perform the duties of the
receptionist while the
receptionist would perform her duties as a
telesales person.
[19] In essence, the appeal involves a
consideration of the question whether it can be said that the
appellant had complied with
s 10 (1) of the Code of Good Practice:
Dismissal and in particular with that part of the code which
provides:-
“
In cases of
permanent incapacity, the employer should ascertain the possibility
of securing alternative employment, or adapting
the duties or work
circumstances of the employee to accommodate the employee’s
disability.”
[20] The following facts are common
cause:-
the third respondent had been
employed on a full time basis as a sales assistant;
that she developed an incapacity
which caused her to be unable to perform her duties for a full day;
and was in a position only
to work on a half day basis
the appellant, for a period of at
least six months attempted to find a solution for her condition with
the intention of retaining
her in its employment. There were no half
day positions available with the appellant.
There were no half day position
available with the appellant; and
the position of receptionist at the
time when the third respondent was in the employ of the appellant
was already filled.
[21] It had been clear from the above
that the only basis upon which it could be suggested that the
appellant acted unfairly in
dismissing the third respondent is that
the appellant should have considered effecting the following
arrangement namely; the third
respondent would do her work in the
morning and , in the afternoon, she would work as a receptionist
while the receptionist would
do the job in the afternoon.
[22] I do not think that the second
respondent’s findings based on a job swap can be allowed to
stand. In a case such as this
an employer’s obligation to try
and accommodate the employee does not require the employer to do more
than what can reasonably
be expected from it in the circumstances. If
the employer is shown to have acted reasonably to try and accommodate
the employee,
it can be said that it has discharged its obligations.
[23] In this case the third respondent
conceded that the appellant had tried very hard to help her. There
were discussions between
the appellant and the third respondent as to
how her difficulty could be addressed. The appellant did all it could
to alleviate
the third respondent’s condition. The third
respondent was free to make any suggestion to the appellant that she
considered
would be of assistance to her in the circumstances. Had
she suggested to the appellant that she could do the job of a sales
assistant
in the morning and that of a receptionist being consulted
as well. Without the consent of the receptionist this suggestion
could
not be implemented.
[24] As the third respondent did not
make this suggestion I do not see why it should be said that the
appellant acted unreasonably
in not suggesting it itself. There is
nothing in evidence which gives the indication that the receptionist
would have agreed to
this suggestion.
[25] In my view appellant acted
reasonably throughout the entire period. I cannot find any acceptable
basis for the second respondent
to have found that there was
unfairness in the appellant’s conduct in this regard.
[26] Having come to this conclusion it
follows, that had the second respondent properly applied his mind to
all the information
before him he could not have come to this
conclusion that the appellant had acted unfairly in terminating the
third respondent’s
employment. The Court a quo had erred in
adopting the same approach as the commissioner and its refusal to
review and set aside
the arbitration award is to be interfered with.
[27] With regard to the costs, I am of
the view that it would accord with the requirement of the law and
fairness not award any
costs on appeal.
The order is as follows-:
The appeal is upheld.
The decision of the Labour Court is
set aside and in its place is substituted the following-;
the review succeeds
the decision of the second
respondent is set aside
in its place is substituted a
determination that the dismissal of the employee was fair.
_________________________
Jappie AJA
I agree
________________________
Zondo JP
I agree
___________________________
Khampepe
AJA
On behalf of the appellants: Adv A. I
Redding Sc
Instructed by
Attorney Perrot Van Niekerk
Woodhouse
Sanndton
On behalf of the respondent: Mr .R. R
Donachie
Attorney Henswood Britter and Caney
Durban