Samancor Manganese (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA17/2007) [2009] ZALAC 4 (18 May 2009)

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[2009] ZALAC 4
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Samancor Manganese (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA17/2007) [2009] ZALAC 4 (18 May 2009)

IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
(HELD AT
JOHANNESBURG)
Case No.: JA 17/2007
SAMANCOR MANGANESE (PTY) LTD
Appellant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
MARAIS,
M.E. NO
Second
Respondent
NATIONAL
UNION OF MINEWORKERS
Third
Respondent
GORRAH,
E
Fourth
Respondent
J U D G M E N T
KHAMPEPE, ADJP
:
Introduction
[1]
This
is an appeal, with the leave of the court, against the judgment of
the Labour Court handed down by Mokgoatlheng J. In that
judgment the
court
a
quo
set aside the arbitration award issued by the second respondent
(Commissioner). The Commissioner had found that the dismissal of
the
fourth respondent (Gorrah) by the appellant (the company) for medical
incapacity was substantially and procedurally fair.
Parties
[2]
The
appellant is Samancor Manganese (Pty) Ltd (“
the
company
”)
,
a company incorporated in South Africa and an erstwhile employer of
Gorrah.
[3]
The
first respondent is the Commissioner for Conciliation Mediation and
Arbitration under whose auspices the third respondent arbitrated
the
dispute between the company and Gorrah. The third respondent is the
National Union of Mine Workers, a trade union of which
the fourth
respondent was a member. The fourth respondent is Mr E Gorrah. He was
an employee of the company and a member of the
Trade Union.
Facts
[4]
Gorrah
was employed by the company as an electrician from 1 July 1999. On
the 11
th
of December 2001, while on duty, he fell off a ladder and injured his
back. Pursuant to that injury, he was during the course of
2002,
intermittently absent from work.
[5]
By
January 2003, the severity of the pain was such that it rendered him
incapable of performing his duties. Dr Fourie, the company
doctor,
referred Gorrah to Dr Sheltma, a specialist. Sheltma advised Gorrah
to undergo an operation.
[6]
On
28 May 2003, Gorrah underwent an operation which was performed by
Sheltma. In a report dated 17 September 2003, and following
a
consultation held with him the previous day, Sheltma advised that:
“
Ek sal
voorstel dat die pasiënt nie meer met sy huidige posisie
aangaan nie en dat hy vir iets anders aangewend moet word.
”
[7]
On
13 October 2003, Fourie, tabled Sheltma’s report to the company. In
the result, the company’s disability management agreement
(“DMA”)
was initiated. The DMA was concluded with the union and constitutes a
collective agreement as defined in section 213
of the LRA.
[
8]
On 14 October 2003, the resident engineer, being Gorrah’s
supervisor, requested Fourie to “categorise” Gorrah’s
incapacity
as provided for in the DMA.
[9
]
On 22 October 2003, an inspection
in
loco
was conducted and thereafter a “categorisation meeting” in terms
of clause 4.1.3 of the DMA was convened. Following that meeting,

Gorrah was categorised by Fourie with a category C disability. In
terms of clause 4.1.3 of the DMA, category C constitutes a “’partial

permanent disability’” which is defined as an employee being
“unfit to continue employment in current occupation, but fit
to
continue employment in an alternative occupation in the company
provided that an alternative position is available in the company”.

It is common cause that Gorrah accepted and agreed with this
categorisation. It deserves mentioning that Section 4.1 of the DMA

provides for the undermentioned categories of disability
“
4.1.1 No
disability i.e. fit to continue employment in current occupation
(Category A);
4.1.2 Partial
temporary disability (for own position) i.e. unfit to continue
employment in current occupation after a period of
sick leave for
recuperation and/or temporary alternative duty (Category B)(Also
refer clause .4.4)
4.1.3 Partial Permanent disability
i.e. unfit to continue employment in current occupation , but fit to
continue employment in an
alternative occupation in the company
provided that an alternative position is available in the
Company(Category C); OR
Unfit to
continue employment in current or any alternative occupation in the
company but would still be fit to take up employment
outside the
company (Category D)”
4.1.4 Total permanent disability
i.e permanently incapable of working in own or any other occupation
(Category E)
[1
0]
In November 2003, a meeting of the “joint committee” comprising
three members of management and three employee representatives
was
convened. The function
1
of the joint committee is:
“
In respect of
category C employees to endeavour to find a suitable alternative
occupation inside the company in compliance with
the medical
tribunal’s finding failing which to make recommendations in respect
of training and medical assistance as provided
for in terms of clause
4.8 of this agreement.
”
[1
1]
At this meeting, the positions that were available were those of a
miner, a fitter, a laboratory supervisor, and a maintenance

supervisor. The joint committee concluded that a meeting should be
held with Gorrah to apprise him of the available positions and
to
invite him to respond in writing thereto.
[12
]
Gorrah responded to the invitation in a letter to the company in
which he indicated that none of these positions were suitable.
He in
turn proposed that consideration should be given to him for a post of
a pitram operator or maintenance planner (although
they were not
vacant).
[13
]
On 26 January 2004, the joint committee was reconvened to consider
Gorrah’s letter and to explore whether any suitable alternative

positions were available.
[14
]
The minutes of this meeting record that:
“
The joint
committee discussed the alternative and suggested positions and Mr
Rens informed the committee that the maintenance planner
and pitram
operator at Wessels (being the positions that Gorrah had proposed)
are not vacant positions …The chairperson asked
all the members of
the committee to express their views, but all the members agreed that
no suitable position is available.
”
[15
]
Gorrah accepted in his evidence that the decision of the joint
committee regarding the unavailability of suitable positions was
fair
in that the available posts at the time were not suitable for his
health condition.
2
[16
] In
the result, the termination process commenced. Clause 4.6.4 of the
DMA provides that if a suitable alternative position cannot
be found
for a category C employee, “the employee’s services shall be
terminated and he shall be paid the medical disability
benefits
provided for in clause 5.2”.
[17
]
On 3 March 2004 Gorrah was given written notice of the company’s
intention to terminate his employment on account of his medical

disability as from 31 March 2004.
[18
]
The reason advanced by the company for Gorrah’s dismissal was
enunciated as follows:
“
LETTER
OF TERMINATION OF SERVICE DUE TO MEDICAL DISABILITY
This serves to inform
you that your service with the company will be terminated in terms of
the Medical Disability Agreement.
All
possibilities were exhausted to find an alternative vacancy for you
with the company but with no success.
The terms and
conditions are as follows:
Your
serv
ice
will be terminated on 31 March 2004
You
will receive medical disability benefits as set out in the
Disability Management Agreement, which is equal to 3 weeks salary

for every year of service.
Accumulated leave
will be paid to you.
Your
Pension Fund Benefits will be paid directly to into your banking
account by Momentum as soon as your claim has been finalised.
Amounts owing to the
company will be recovered from money due to you.
Membership to the
Medical Aid Fund will cease on 31 March 2004 however, you will be
entitled to medical assistance by the company
in terms of the
Disability Management Agreement.
You are also informed
that subject to the conditions of the DMA, you qualify for one
course for a maximum of four (4) months as
per the attached
Department of Labour courses list and the company will pay the
training costs only.
You are required to
go for exit medical examination prior to the termination date at
Afroch Clinic.
Should you need any
further information please do not hesitate to contact the relevant
Human Resources Official and your trade
union representative.
Management would like
to thank you for your service to the company and wish you all the
best in future.
Yours Faithfully
HP Botes
General
Manager”
Arbitration
[19
]
Gorrah challenged his dismissal at the CCMA alleging that it was
both procedurally and substantively unfair. In essence the challenge

related to whether suitable alternative positions were available at
the time of his dismissal and whether Gorrah’s dismissal
was
procedurally fair.
[2
0]
At the arbitration, Gorrah was represented by the union’s official
and the company was represented by its Employee Relations

Superintendent. In terms of the pre-arbitration conference minute,
handed in by agreement at the commencement of the arbitration,
facts
which were common cause and those in dispute were stipulated as
follows:
20
.1 Facts
which are common cause:
2
0.1.1
Mr Gorrah was an employee of HMM.
2
0.1.2
His services were terminated on the 31
st
of Mach 2004 for incapacity (ill-health).
2
0.1.3
The DMA (Disability Management Agreement) procedure was followed.
2
0.1.4
The bundle of documents are what they purport to be.
2
0.2
The issues in dispute were stipulated as follows:
20.2.1
Availability of suitable alternative position.
2
0.2.2
Inconsistency.
[21
]
The union official raised two further issues for inclusion in the
list of issues in dispute. The issues were formulated by the

Commissioner as follows “Mr Mayoyo indicated another issue in
dispute should be added. He said that it would be the union’s
case
that,
although
Disability Management Agreement was followed,
the process followed was not in terms of the
Labour Relations Act 66
of 1995
. Mr Radebe did not object to this issue being added. It
therefore has to be decided whether the dismissal of the applicant
was
substantively fair or not,
with
specific reference to the availability of a suitable alternative
position and consistency
(own emphasis).
[2
2]
It furthermore had to be decided whether the dismissal of the
applicant was procedurally fair in terms of the
Labour Relations Act
66 of 1995
as amended. The other issue related to the company’s
failure to re-categorize the positions.
[23
]
At the arbitration, Ms Noleen Klaaste an H.R. coordinator at Wessels
underground mine gave evidence on behalf of the company with
regard
to the events which led to Gorrah’s dismissal in terms of the DMA.
[24
]
Her evidence was replete with details relating to the company’s
compliance with the categorization process followed in respect
of
Gorrah as provided for in the DMA. She also testified about the
events which preceded Gorrah’s categorisation, the terms of
the
DMA, the process which was followed to categorise Gorrah and the
composition and functions of the joint committee. Importantly
she
explained that at the first seating of the joint committee the
chairperson had requested Nic Rens, who is responsible for updating

the company’s organogram to advise the joint committee of the
positions that were available at that stage. Such positions were

then conveyed to Gorrah. The ambit of her evidence in this regard
was in any case largely common cause. She further testified
that the
company handled incapacity cases consistently. This evidence was not
challenged by the respondents.
[25
]
Gorrah gave evidence in support of his case and also called Mr
Bosiame
3
who was a member of the joint committee and also served as Gorrah’s
representative to give evidence in support of his case. Gorrah

testified with regard to the events that led to his categorisation.
The notable feature of his evidence was that he accepted the

correctness of his categorisation by Fourie with category C
disability. Furthermore, he confirmed that he did not dispute his
categorisation as envisaged in terms of the DMA. The pertinent
evidence appears from the following questions which were put to him:
“
MR RADEBE
:
Have you ever at any time with the help of your union representative
disputed the categorisation process?
MNR GORRAH
:
Ek het nie deur die unie nie want omdat daar aanduidings was die –
MNR KOLYANE, die wat onse voltydse unie man het probleme
ondervind om
vergaderings te belê waar ons die dinge kon bespreek maar ek
het na DR MARCUS FOURIE toe gegaan en aan hom duidelik
gemaak waarin
hy vir my gesê het dit is nie moontlik nie.
MADAM
COMMISSIONER
:
Net ‘n oomblik. Laat ek nou gou hoor. Het u ‘n probleem met die
kategorisasie, kyk soos ek die kategorisasie C verstaan
sê hy –
laat ek net seker maak voordat ek iets verkeerd sê. Category C
employees …
MR
RADEBE
:
Under B1/4…
MADAM
COMMISSIONER
:
B1/4. partial permanent disability, that is unfit to continue
employment in current occupation but fit to continue employment
in an
alternative occupation in the company provided that an alternative
position is available in the company. Or unfit to continue

employment in current or any alternative occupation in the company
but would still be fit – nee, dit is D.
MNR
GORRAH
:
Dit is D daardie.
MADAM
COMMISSIONER
:
C is ongeskik om voort te gaan met diens in jou huidige occupation –
posisie maar geskik om met diens – employment voort
te gaan in ‘n
alternatiewe posisie in die maatskappy op voorwaarde dat hierdie
alternatiewe posisie beskikbaar is. Sou u sê
dit is reg of
verkeerd? Ek meen op grond waarvan sê u dit nie reg nie, kom
ons vra so.
MNR GORRAH
:
Kom ek sê DR MARCUS FOURIE het aan my die spesifieke
kategoriseering verduidelik die dag en omdat hy dit duidelik gemaak

het dat daarna alternatief gekyk sou word vir ‘n ander werk by die
maatskappy het ek die kategoriseering op daardie stadium aanvaar.
”
[26
]
Bosiame, who was Gorrah’s representative and constituted the joint
committee convened in terms of the DMA, also gave evidence
in support
of the respondents. He confirmed that after Gorrah’s
categorisation, the joint committee of which he was a member,
had at
its first meeting considered alternative vacancies that the company
presented to that structure, but came to the conclusion
that these
were not suitable for Gorrah.
4
[27
]
At subsequent meetings the union component of the joint committee
had pressed that a more suitable position such as that of a

switchboard operator be made available to Gorrah. He however
conceded that the relevant position was at that stage occupied and

the company had indicated at the time, that the position was not a
vacancy.
5
[28
]
He testified that they later advised Gorrah to table a letter to
Fourie for re-categorisation.
6
It is evident that that letter was written by Gorrah sometime in May
2004 after the company had acted in terms of clause 6.4 of
the DMA.
[29
]
The evidence having been concluded and written arguments having been
presented, the arbitrator came to the following conclusion
in her
award:
“
The
applican’st services were terminated as a result of medical
incapacity. It was common cause that his specialist, Schltema,

recommended that he should not continue with his current occupation,
but might be fit for alternative work
.”
‘’…
A
collective agreement, the DMA, determined the process to be followed
with regard to medical incapacity… The applicant’s union,
the
NUM, is party to the
DMA.
It was confirmed to be common cause that the DMA was followed.
..‘’
[30
]
With regard to the issue of inconsistency, she accepted Klaaste’s
evidence that the company handled incapacity cases consistently
and
accordingly found that there was no basis for a finding of
inconsistency.
[31] She further
found that the DMA was not contradictory to the purpose of the
Labour
Relations Act. She
found that as it was common cause that the process
followed by the respondent was in terms of the DMA it followed that
the process
was also in terms of the
Labour Relations Act.
[3
2] In
so far as it relates to the issue of whether any suitable positions
were available prior to the dismissal for medical incapacity
she
found as follows:
“
It
appeared to be common cause that the available posts as indicated on
Exhibit B1/2 were not suitable. At the joint committee meeting
in
January the other two posts suggested by the applicant were
discussed. Apparently the applicant had considered the suitability
of
all position at the mine, whether available or not. The suggested
posts were not available. Vacant posts are advertised. No
other
vacant posts were brought up for discussion at the second joint
committee meeting. According to Mr. Bosiame’s evidence
the company
at this meeting indicated that no other posts were available
…
…
Apparently
only the switchboard position would be suitable. It was not a vacant
position and was the only other position that the
union proposed that
the company should attempt to make available.
Th
e
joint committee’s task, and the task of all its members, is to
“endeavour” to find a suitable position. I am satisfied that
this
was done in this matter.
The
applicant as well as Mr. Bosiame confirmed that the available
positions indicated to the applicant were not suitable. Both the

applicant and Mr. Bosiame said that the only suitable position would
be the position of the switchboard operator. That position
was not
vacant and I accept the evidence that it would not be feasible to
make it available by shifting the permanent employee…
7
Labour Court
[33
]
The third respondent and Gorrah were aggrieved by the outcome of the
award. The award was therefore taken on review to the Labour
Court in
terms of
Section 145
of the
Labour Relations Act.
[34
]
I now turn to deal with the grounds of review relied upon by the
respondents before the Labour Court. At the outset it would
be
apposite to note that a myriad of grounds were relied upon on review
which did not constitute the issues that were considered
by the
Commissioner. I only advert to those that the
court
a qou
ostensibly relied upon to overturn the award. These included that:
Grounds for
Review
:
34
.1
‘’She erroneously found that the dismissal of the second
appellant was substantively and procedurally fair. She should have

found that the second applicant was substantively and procedurally
unfair.
34
.2
The applicant states that the dismissal was unfair in that:
34
.2.1
the third Respondent improperly applied the principles of the
Disability Management Agreement and used it as a form of retrenchment

contrary to clause 1 of the Disability Management Agreement;
34
.2.2
all the medical practitioners to whom the Second Applicant was
referred to for medical examination were chosen by Fourie
of the
third Respondent. None of the doctors who examine the Second
Applicant were appointed by the first Applicant in terms if
clause
2.1 of the Disability Management Agreement;
34
.2.3
she failed to realize that the third Respondent did not comply with
the Disability Management Agreement provisions;
34
.2.4
she failed to realize that the Third Respondent failed to offer the
second Applicant a suitable alternative position and that
it instead
deliberately offered him unsuitable post…’’
Findings by the
court
a
quo
[35
]
The court
a
quo
made the following principal findings.
8
It found that:
35
.1
Dr Fourie was obliged to refer Gorrah’s request for
re-categorization to the medical tribunal
de
novo
inorder to determine Gorrah’s medical category and his failure to
do so constituted a breach of clause 4.2 of DMA rendering Gorrah’s

dismissal unfair, and the award of the commissioner reviewable.
35
.2
It was impermissible for Gorrah’s representative (Bosiame) to act
in a dual capacity (i.e. as a member of the joint committee
and as
Gorrah’s representative) and, accordingly Gorrah was effectively
not represented at the joint committee meetings, with
the result that
Gorrah’s dismissal was unfair, and the commissioner’s award
reviewable. In this regard the Court reasoned that:
Bosiame was a member of the “
joint
committee
” yet he also purported to
be the second applicant’s representative at the joint committee
meeting.
In my view the “DMA” renders it impermissible
for the second applicant’s representative to simultaneously sit as
a member
of the joint committee and also act as a representative of a
party whose case is been discussed. However, laudable Bosiame’s

efforts may have been in purporting to represent the interests of
second applicant, the joint committee is an autonomous body
comprising of its constituent members. Any person purporting to
represent the second applicant cannot contemporaneously sit as
a
member of the joint committee as Bosiame purported to do.
35
.3
The aforesaid
“flawed
procedure”
rendered
Gorrah’s dismissal procedurally and substantively unfair.
35
.4
In regard to the issue of relief, the court
a
quo
set aside the commissioner’s award on review, with costs and
ordered Gorrah’s retrospective reinstatement from 18 May 2004;
Submission
s
on appeal
[36
]
Before us Mr Myburgh, who appeared on behalf of the appellant, has
submitted that the court
a
quo
misdirected itself with regard to its findings on the merits. He
argued that the court
a
quo’s
finding that Gorrah should have been re-categorised was incorrect
because it was based on the incorrect date of Gorrah’s dismissal.

Mr Goldberg, who appeared on behalf of the third and fourth
respondents, albeit conceding that the date relied upon by the court
a
quo
is incorrect, nevertheless argued that on the consideration of the
evidence its findings could not be faulted.
[
37]
It seems to me that the court
a
quo’s
finding relating to the appellant’s failure to re-categorise
Gorrah, was based on the union’s contention that Fourie should
have
re-categorised Gorrah when he received his letter dated 14 May 2004
requesting Fourie to recategorise him as a category E
disability.
[38
] In
my view, the court
a
qou
,
lost sight of the fact that Gorrah was dismissed for medical
incapacity on 31 March 2004, with the letter in question being
addressed
to Fourie on 14 May 2004, approximately 1 ½ months
after Gorrah’s dismissal.
[39
] Although
the union pleaded in its founding affidavit that that Gorrah was
dismissed on 18 May 2004(i.e. after his letter to Dr
Fourie of 14 May
2004), the company answered that the dismissal occurred on 31 March
2004, which was not denied in reply. Furthermore
Gorrah’s letter of
termination
9
clearly reflects his date of dismissal as being 31 March 2004, with
this being the date of dismissal recorded in the pre-arbitration

minute and placed on record at the commencement of the arbitration,
and correctly recorded in the arbitration award.
[4
0] Any
failure on the part of the company to re-categorize Gorrah’s
incapacity after dismissal could not have had any bearing
on the
fairness of Gorrah’s dismissal on 31 March 2004, it being the act
of dismissal on that day that was subject of the proceedings
before
the commissioner.
[41
] The
court
a
quo’s
finding that Fourie should have still entertained the categorisation
of a dismissed employee is plainly erroneous.
[4
2]
Given the above, the appellant’s submission that any failure on
the part of the appellant to re-categorise Gorrah’s incapacity

after his dismissal has no causal connection to the fairness of
Gorrah’s dismissal on 31 March 2004 is in my view correct. It
is
trite law that an employee’s conduct that did not constitute the
subject of his dismissal has no relevance when determining
whether
his/her dismissal was substantially fair or not.
10
In the circumstances of this case there was no casual connection
between the fairness or otherwise of Gorrah’s dismissal on the
31
March 2004 and the failure to re-categorize his capacity on 14 May
2004.
[43
]
It is evident that the Commissioner had not jurisdiction to enquire
into the issue in question, and, accordingly, did not commit
a
reviewable irregularity (as found by the court
a
quo
)
in failing to do so.
[44
]
It would seem to me that the finding of the court
a
quo
appears to have been motivated by its erroneous acceptance that
Gorrah was dismissed on 18 May 2004 (i.e. after the request of

re-categorization). As stated above, this is incorrect. There can
be little doubt that the court
a
quo
would not have made this finding had it correctly recognised that
Gorrah was in fact dismissed on 31 March 2004, well before the

request for re-categorization was made.
[
45]
Mr Goldberg has however strenuously argued that “
this
error in no way influenced the Judge. It is submitted that there is
no basis to the submission that the finding in question
is based on
an erroneous belief that Gorrah was dismissed on 18 May 2004. The
Judge a quo rather based his decision on his recounting
of the
evidence, which was that ‘Second Applicant after his
re-categorisation approached Doctor Fourie to re-categorise his
physical disability as category E, that is permanently incapable of
working in his own or any other occupation. Doctor Fourie refused.

Critically Doctor Fourie failed to appreciate or to understand that
Gorrah was disputing his finding that his physical disability
was a
partially permanent disability
”.
The court
a
quo’s
reasoning and concomitant finding that when Gorrah approached Fourie
in terms of the letter dated 14 May 2004 -1
½
months after his purported dismissal - for a re-categorisation of his
physical disability from category C to E, Fourie “
critically
failed to appreciate that Gorrah was disputing that his physical
disability was not a partially permanent disability
”
is in my view erroneous.
[46
]
In my view the court
a
quo’s
finding in this regard fails to take proper account, first, of the
evidence which was largely common cause before the Commissioner
and
second, demonstrates the court
a
quo’s
failure to properly construe the provisions of the DMA. I hereunder
deal further with this aspect.
46
.1 The
thrust of Gorrah’s evidence was that he accepted that his
categorisation by Fourie as a category C disability in terms
of the
DMA was correct..
11
46
.2
Section 4.2
of the DMA provides a procedure for disputing any
categorisation made in terms of
section 4.
This sub section provides
as follows:
“
4.2 In the
event of the employee disputing the findings of a Company Medical
Officer, he shall have the right to have his case
referred to the
Medical Tribunal subject to him advising the Human Resources Manager
in writing of his intent to do so, within
30 days after being
categorised by a Company Medical Officer. If for any reason beyond
the employee’s control he could not give
such notice, due
cognisance will be taken thereof.”
[
47]
In this regard the court found that there was an obligation on
Fourie to refer Gorrah to the Medical Tribunal
de
novo
to determine Gorrah’s medical category. It therefore found that
his failure to have acted in that regard was a contravention
of
clause 4.2 of the DMA.
[4
8] The
procedure for invoking
section 4(2)
of the DMA is manifestly clear.
It behoves the employee to advice not the company medical doctor,
Fourie, but the Human Resources
Manager in writing of his intent to
do so within 30 days after being categorised by a company medical
doctor.
[
49] Accepting
that Gorrah intended to dispute his categorisation from category C to
E. No explanation has been advanced by him why
the
requisite notice was not given to the Human Resources Manager within
the stipulated time of 30 days as the DMA provides. Furthermore
no
reasons have been cited why in Gorrah’s view Fourie would have been
competent to receive the notice of the dispute and not
the Human
Resources Manager as envisaged by the DMA. In any event, the first
respondent and Gorrah’s conduct after the latter’s

categorisation, negate any inference that they were unhappy with the
categorisation.
12
[5
0]
I am satisfied that there was no shred of evidence that Gorrah or
the union intended to disputed the relevant categorisation
in terms
of
Section 4(2)
of the DMA.
[5
1]
Section
4.2
of the DMA does not impose any obligation on the joint committee
to consider re-categorisation of an employee particularly in
circumstances
where his initial categorisation was unchallenged. The
court
a
quo
therefore erred when finding that Fourie was obliged to refer Gorrah
to the Medical Tribunal for re-categorisation.
[
52] The
Court
a
quo
further found that as Bosiame was a member of the Joint committee,
the provisions of DMA rendered it impermissible for him to
simultaneously act as Gorrah’s representative. The court found
that:
“
However,
laudable Bosiame’s efforts may have been in purporting to
represent the interest of Second applicant, the
joint
committee is an autonomous body comprising of its consistent members.
Any person purporting to represent the Second Applicant
cannot
contemporaneously sit as a member of the joint committee as Bosiame
purported to do”
[5
3] The
finding by the court
a
quo
regarding the dual role played by Gorrah’s representative is in my
view erroneous for the following reasons:
5
3.1 The
issue in question is not amongst the union’s pleaded grounds of
review, and it was therefore not an issue before the commissioner,

with the result that she cannot be found to have committed a
reviewable irregularity in failing to make the finding in question.
13
(Indeed, it was common cause at the arbitration that the provisions
of the DMA had been complied with).
14
On the
authority of this court in
Rustenburg
Platinum Mines Ltd v CCMA
&
Others,
15
it was impermissible for the court
a
quo
to have come to Gorrah’s relief on this basis.
16
5
3.2 I
agree with the submission made by Mr Myburgh that, the finding that
Gorrah’s dismissal was procedurally unfair because his

representative was also a member of the joint committee is
irrational. It is indubitable that if anything, this served to
increase
Gorrah’s influence and enhanced the procedural fairness of
his dismissal. This is clearly demonstrated by the evidence of
Bosiame
himself. His uncontroveted version was that at the various
sittings of the joint committee he consistently pressed for the
consideration
of a number of suitable positions for Gorrah.
[
54]
Furthermore, the court
a
quo
plainly misconstrued the provisions of the DMA. It is a well
established principle in the construction of agreements and statutes

that where words are defined in the agreement, any provision in the
agreement relating to the defined words should be constructed
so as
to give expression to their defined meaning unless to do so would
lead to a n absurdity so glaring that the parties to the
agreement
could not have contemplated.
17
[
55]
In terms of the DMA
18
,
both the constitution of the Joint committee and its functions are
clearly defined and set out. There is nothing in the definition
of
the Joint committee or in the functions of that Committee as
envisaged in terms of the DMA that seeks to limit or expand the

palpably well defined functions of the joint committee. Ineluctably,
there is no room to suggest the provisions of the DMA preclude

Bosiame from constituting the Joint committee if he acts as Gorrah’s
representative. Moreover, there is no dislocation or inconsistency

between the functions of the Joint committee and the assistance that
was sought to be rendered by Bosiame to Gorrah. Given the
above, it
was impermissible for the court to seek to find a limitation to the
defined functions of the Joint committee and/or add
words of
exclusion or extension to its members inconsistent with what the
defined words are intended to cover by the DMA. In the
result, its
finding that the DMA precluded the contemporaneous roles played by
Bosiame has no textual support and constitutes misdirection.
[
56]
The court also found that when Gorrah disputed Dr Fourie’s
categorization he did not have the assistance of a representative
in
terms of the DMA. In this regard it was submitted by Mr Goldberg, on
behalf of the third and fourth respondents, that this finding
was
unassailable because Bosiame’s dual role deprived Gorrah of the
advice pertaining to available options subsequent to his

categorisation.
[5
7]
The provisions of the DMA which determines the procedure for the
categorization and conveyance of the relevant categorisation
are
quite clear.
A company medical
Doctor
is
enjoined to categorize the employee’s medical condition in terms of
the various categories stipulated in the DMA. In determining
the
relevant category, the Company Medical Doctor only considers all
relevant medical information including medical reports received
from
other medical practitioners.
[5
8] Once
the categorization of an employee has been determined, such findings
are conveyed to the Manager as well as the relevant
employee, by the
Company Medical Doctor, in the presence of the employee’s
representative. It is the employee’s Manager who
at that stage must
explain to the employee the full consequences of the findings and the
available options (to either accept or
reject the findings) and not
the employees’ Representative.
[
59] Having
regard to the above, the Court
a
quo’s
finding that when Gorrah disputed the finding he did not have the
assistance of the DMA is not born out by the provisions of the
DMA.
[
60]
Section 4.6
of the DMA authorizes the company to dismiss a category
C employee, if he has been offered an alternative occupation but has
not
occupied it because he is unable to carry out the duties required
by that occupation and another alternative occupation is not
available within 4 months of him declining an offer of an alternative
occupation.
[6
1]
Having regard to the aforesaid provisions, the cardinal question to
consider in the context of Gorrah’s dismissal is whether
there were
positions available within the 4 months of Gorrah’s refusal of the
alternative occupations. The evidence clearly
points that there was
no such availability.
[62] In my view
the Commissioner’s findings that the Joint committee had performed
its functions of ‘’endeavouring’’
to find a suitable position
for Gorrah and that on the evidence presented no positions were
available was correct and should not
have been set aside.
[6
3] The
only issue remaining relates to the court
a
quo’s
finding that ‘’the flawed procedure’’ rendered Gorrah’s
dismissal procedurally and substantively unfair. In
Unitrans
Zululan(PTY)LTD v Cebekhulu
19
,
this Court held that procedural unfairness (no matter how serious)
cannot, as a matter of law, translate into a finding of
substantive
fairness, the two do not and cannot overlap. The court
a
quo’s
finding in this regard was an error.
[
64]
I am mindful that the test enunciated by the Constitutional
Court
20
in order to determine whether the award should be reviewed or not is
whether a reasonable decision maker could not have reached
the same
reasoning. In the end, I am satisfied that the decision of the
Commissioner is not the sort that a reasonable decision
maker could
not have reached.
[
65]
The requirements of the law and fairness dictate that the
respondents should not be ordered to pay the costs of this appeal.
Order
In the premises I
make the following
:
The appeal is upheld.
The order of the
court
a quo
is set aside and is substituted with the following order:
‘’The
review application is dismissed with costs.’’
_________________________
KHAMPEPE ADJP
I agree:
_________________________
Leeuw
JA
I agree:
________________________
TLALETSI
AJA
For the
appellant :
Adv
A T Myburgh
Instructed
by :
Leppan
Beech Inc
For the
respondent : Adv Goldberg
Instructed
by : Nomali Tshabalala Attorneys
Date of Judgment : 18 May
2009
AUTHORITIES
1.
AA
Ball (Pty) Ltd v Kolisi & another
[1998] 6 BLLR 560
(LC).
2.
Coetzee
v Lebea NO & another
(1999) 20 ILJ 129 (LC).
3
Computicket
v Marcus NO & others
(1999) 20 ILJ 342 (LC).
4
.
De
Beers Consolidated Mines Ltd v CCMA & others
[2000] 9 BLLR 995
(LAC).
5
.
Flex-o-thene
Plastics (Pty) Ltd v CWIU
[1999] 2 BLLR 99
(LAC).
6
.
Foodcorp
(Pty) Ltd v Deputy Director-General, Department of Environmental
Affairs and Tourism: Branch Marine and Coastal Management
&
others
2006 (2) SA 191
(SCA).
7
.
Members
of the Executive Council for Tourism & Environmental &
Economic Affairs: Free State v Nondumo & others
[2005] 26 ILJ 1337 (LC).
8
.
Mndaweni
v JD Group t/a Bradlows & another
(1998) 19 ILJ 1628 (LC).
9
Mondi
Paper Co Ltd v PPWAWU & another
(1994) 15 ILJ 778 (LAC).
10
.
Mzeku
& others v Volkswagen SA (Pty) Ltd & others
[2001] 8 BLLR 857
(LAC).
11.
PG
Group (Pty) Ltd v Mbambo NO & others
(2004) 25 ILJ 2366 (LC).
12.
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v CCMA & others
[2003] 7 BLLR 676
(LAC).
13.
Rustenburg
Platinum Mines Ltd v CCMA & others
[2004] 1 BLLR 34
(LAC).
14.
Shoprite
Checkers (Pty) Ltd v Ramdaw NO & others
2001 (4) SA 1038
(LAC).
15.
Telkom
SA Ltd v CCMA & others
[2003] 1 BLLR 92
(LC).
16.
Unitrans
Zululand (Pty) Ltd v Cebekhulu
[2003] 7 BLLR 688
(LAC).
17.
Van
Wyk v Independent Newspapers Gauteng (Pty) Ltd & others
(2005) 26 ILJ 2433 (LC).
18.
Sidumo
& another v Rustenburg Platinum Mines & others
(unreported Constitutional Court judgment, case no. CCT85/06,
delivered on 5 October 2007).
1
Section 3.21
of the DMA.
2
See the record (5) p 344 lines 9-11.
3
He was the chairperson of the shop steward’s
committee.
4
Record (5) 365 lines 19-30.
5
Record (5) 366 lines 2-30.
6
Record (5) 370 lines 18-30.
7
The portions of the award are quoted
insequentially.
8
Record 8 p 537-540 paras 64-75.
9
See page 6 above para 18.
10
Flex-o-thene
Plastics (Pty) Ltd v CWIU
[1999] 2
BLLR 99
(LAC);
Mndaweni v JD Group t/a
Bradlows & another
(1998) 19 ILJ
1628 (LC) at 1631A-C;
Mondi Paper Co
Ltd v PPWAWU & another
(1994) 15
ILJ 778 (LAC).
11
See pages 10
supra
dealing with Gorrah’s
viva
voce
evidence
.
12
See page 9
supra
.
13
Van Wyk v
Independent Newspapers Gauteng (Pty) Ltd & others
(2005)
26 ILJ 2433 (LC) at para [17];
PG Group
(Pty) Ltd v Mbambo NO & others
(2004)
25 ILJ 2366 (LC) at para [33]. Indeed, if the Commissioner had made
the finding in question, in circumstances where the
issue in
question had not been identified as being an issue in dispute at the
arbitration, she would have committed a reviewable
defect. This
occurred in:
AA Ball (Pty) Ltd v
Kolisi & another
[1998] 6 BLLR 560
(LC) at 562F-G;
Telkom SA Ltd v CCMA &
others
[2003] 1 BLLR 92
(LC) at para [7];
Oracle
Corporation SA (Pty) Ltd v CCMA & others
[2005] 10 BLLR 982
(LC) at para [16].
14
Record 4 p 252 lines 9-14; Record 3 p 239 paras
1-3.
15
[2004] (1) BLLR 34
(LAC) at para 15.
16
See similarly:
De
Beers Consolidated Mines Ltd v CCMA and others
[2000] 9 BLLR 995
(LAC) at para [15];
Mzeku
& others v Volkswagen SA (Pty) Ltd & others
[2001] 8 BLLR (LAC) at para [32].
17
See
Venter v R
1907
TS 910
@ 915
Also EA Kellaway in
Principles of Legal Interpretation Statutes, Contract And Wills at
page 269, 272
18
Section 2.2
defines the composition of the Joint
Committee and
Section 3
defines the functions of the Joit Committee.
Section 4.1
sets out the various Medical Categories for disability.
19
[2003] 7 BLLR 688
(LAC) para 24.
20
Sidumo &
another v Rustenburg Platinum Mines & others
Case
No. CCT 85/06 delivered on 5 October 2007.
30