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[2010] ZALAC 7
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Samancor Tubatse Ferrochrome v Metal and Engineering Industries Bargaining Council (MEIBC) and Others (JA 57/08) [2010] ZALAC 7; (2010) 31 ILJ 1838 (LAC) ; [2010] 8 BLLR 824 (LAC) (12 March 2010)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case No.: JA 57/08
SAMANCOR
TUBATSE FERROCHROME Appellant
and
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL (“MEIBC”) First Respondent
JAN
STEMMET N.O Second Respondent
NATIONAL
UNION OF MINEWORKERS Third Respondent
M
J MALOMA Fourth Respondent
JUDGMENT:
DAVIS JA:
Introduction
[1] This is an appeal against a
judgment of Francis J in which he dismissed an application to review
and set aside an arbitration
award issued by second respondent on 28
February 2007. Second respondent found that third respondent’s
dismissal was substantively
and procedurally unfair and ordered his
reinstatement on conditions no less favourable than those that
applied prior to his dismissal
with effect from 2 November 2006.
[2] After hearing argument, the court
delivered a judgment
ex
tempore
. Inexplicably,
the operator of the recording machine in the court failed to inform
the Court that the machine was not functioning.
The judgment could
not be transcribed and accordingly this judgment is a reconstruction
thereof.
[3] Briefly the facts were as follows:
Appellant conducts business in the mining sector and is a division of
a larger mining company.
Fourth respondent was employed by
appellant as a furnace operator, having commenced employment with
appellant in August 1996.
On 20 May 2006, fourth respondent was
arrested on suspicion of having committed an armed robbery. He
remained in custody and
was absent from work for approximately 150
days. On 30 May 2006, fourth respondent was dismissed on the
grounds of incapacity,
in that he was physically unable to tender his
services. A letter advising him of his dismissal was delivered to
the police
station at which he was being held on 6 June 2006.
[3] On 2 November 2006 a
post-dismissal hearing was held by the appellant, following fourth
respondent’s release in custody.
The hearing was chaired by
Mr Niewoudt, appellant’s human resources manager, and was held
in terms of appellant’s
disciplinary code.
[4] This hearing determined that
fourth respondent had been arrested on 20 May 2006, and was absent
from work until 17 October 2006;
that is for a period of
approximately 150 days. It confirmed that fourth respondent had
advised the appellant by way of a telephone
call of his arrest on the
day on which he was arrested. The following day fourth respondent’s
sister informed the appellant
of his arrest.
[5] The hearing found that the
appellant could not have been expected to put in place a temporary
arrangement for such a period
of time which would have allowed fourth
respondent’s position to be kept open for him. The position
he held was an important
one within the framework of appellant’s
organisation. The criminal case against fourth respondent was still
pending at
the time of the post-dismissal hearing. This was a
second instance within a six month period that fourth respondent had
been
arrested and had thus been absent from work. Accordingly, the
dismissal of fourth respondent was upheld.
[6] Fourth respondent then referred
the matter to arbitration and the dispute was heard by second
respondent. Second respondent
found that the dismissal was
substantively unfair because respondent had not taken proper account
of the fact that fourth respondent
had no control over the
circumstances and duration of his absence. Furthermore, on 30 May
2006, when appellant made his decision
to dismiss fourth respondent,
no opportunity was given to the latter to present his case.
Accordingly, the dismissal was also
procedurally unfair. For these
reasons, appellant was ordered to reinstate fourth respondent on
conditions no less favorable
than those that applied prior to his
dismissal with effect from 2 November 2006.
[7] On review, Francis J agreed with
second respondent’s finding:
“
It is not clear what
misconduct he was guilty of since he was not the cause of his
incarceration. It was a factor beyond his control
and could
therefore not be said that he had been absent without permission.
He was not the author of his own misfortune since
he had a valid
reason for his absence he had to be reinstated with loss of income
.”
Evaluation
[8] The letter purporting to dismiss
fourth respondent dated 30 May 2006 provides the basis of the case
against fourth respondent:
“
Operational
Incapacity Dismissal
You have failed to report for duty
since the 20
th
May 2006 and you are therefore in breach of contract of employment as
you are physically unable to tender your services required.
Your
service of employment is terminated with effect from 30 May 2006.
A post dismissal hearing will be
held on your return to work to establish if you have a valid reason
for your absence
:”
Both second respondent and the court
a
quo
placed considerable
emphasis on the scope of the term ‘incapacity’, that is
it should be caused by ill health, injury
or poor performance; thus
the finding that the charge exceeded their defined scope of the
definition of incapacity. This finding
was critical to the
decisions of both second respondent and the court
a
quo
.
[9] The approach is not entirely
compatible with existing jurisprudence. Thus, in
Jabariv
v Telkom SA (Pty) Ltd
(2006)27 ILJ 1854 (LAC) the court relying on
Du
Toit Labour Relations Law
(4
th
ed) 402, found that incompatibility was a species of incapacity as it
relates essentially to the subjective relationship of an
employer and
other coworkers within an employment environment regarding an
employees’ inability or failure to maintain harmonious
relationships with his peers. The implication of this judgment is
that incapacity extends beyond the narrow confines of the term
adopted both by the second respondent and the court
a
quo
. Brassey
Commentary
on the Labour Relations Act
at para A8 – 76 submits, correctly in my view, that:
“
Incapacity may be permanent
or temporary and may have either a partial or a complete impact on
the employee’s ability to perform
the job. The Code of Good
Conduct: Dismissal conceives of incapacity as ill-health or injury
but it can take other forms. Imprisonment
and military call-up, for
instance, incapacitate the employee in pursuance of a closed shop is
for incapacity; so is one that results
from a legal prohibition on
employment
.”
There is thus no justification for the
limitations placed by the court
a
quo
or second respondent
upon the meaning of incapacity as adopted.
[10] Manifestly, the question as to
whether a dismissal in the circumstances of the present dispute, is
substantively fair depends
upon the facts of the case. An employer
needs to consider the reasons for the incapacity, the extent of the
incapacity, whether
it is permanent or temporary, and whether any
alternatives to dismissal do exist.
[11] In this case, the appellant had
no idea as to how long the incarceration would endure. Further, the
skilled nature of fourth
respondent’s position made it
commercially necessary for the appellant to make an expeditious
decision about fourth respondent’s
future and the imperative to
ensure that a similarly skilled person could assume the
responsibilities.
[12] A large organisation may be able
to take a somewhat more generous approach to the particular problem
of this case, namely to
keep an incarcerated employee’s
position open until his return, in that such an organisation may have
‘deep financial
pockets’. But, in principle, it cannot
be the case that the law has developed an inflexible rule; that is
that incapacity
which is outside of the control of the employee
cannot be a cause for dismissal.
[13] In my view, given the facts of
the present dispute, it was not reasonable to expect appellant to
have kept the position open
and available to fourth respondent for an
indefinite period of time, particularly in circumstances where he
held an important position
within the organisation. The potential
indefinite length of the absence from work of a person holding a
position which could
not easily be filled by temporary employee
renders this case one of incapacity as I have applied that term.
For a similar approach,
see the Industrial Relations Court of
Australia in
Young v
Metropolitan Ambulance Service
(1997) IRCA 81.
[14] In the circumstances of this case
and for the reasons so set out, second respondent should have
considered that the decision
to terminate fourth respondent’s
employment was fair and manifestly justifiable.
Procedural
fairness
[15] It may have been impossible for
appellant to hold a pre-dismissal hearing while the fourth respondent
was incarcerated. But,
merely providing fourth respondent with a
letter informing him in writing of the decision to dismiss him and
the reasons for the
dismissal while he was in prison did not
constitute a fair opportunity for fourth respondent to present his
case.
[16] When the matter came before the
post-dismissal hearing, the same person who presided over the initial
hearing again presided.
But the decision to dismiss had already
been made. Thus the post dismissal hearing appeared to be nothing
more than an
expo facto
rationalisation of the earlier decision. In the circumstances,
fourth respondent was not accorded the standard of fairness which
is
required in a dismissal hearing. In the circumstances therefore,
procedural fairness was not complied with by appellant.
[16] Accordingly, section 194 of the
Labour Relations Act 66 of 1995 (LRA) applies. The maximum
compensation which can be awarded
to fourth respondent in such a case
is the equivalent of twelve months remuneration calculated at the
employee’s rate of
remuneration and the date of dismissal. In
the circumstances of this case, particularly given the difficulties
of dealing with
a person who was incarcerated for some six months,
the discretion afforded to a court to determine what is ‘just
and equitable’
in terms of sections 194(3) of the LRA must be
exercised. Compensation based upon fourth respondent’s
remuneration for
a period of six months calculated at the employee’s
rate of remuneration at the date of dismissal is a just and equitable
award for the breach of the right of procedural fairness which was
owed to fourth respondent.
[17] In the result the following order
is made:
1. The appeal is upheld.
2. The order of the court
a
quo
is set aside and
replaced with
the following order
The dismissal of fourth respondent
is declared to be substantively fair.
The dismissal of fourth respondent
is found to be procedurally unfair.
An amount of compensation in the
equivalent of six months remuneration calculated the rate of
remuneration on the date of dismissal
is awarded to fourth
respondent.
There is no order as to costs.
_____________
DAVIS JA
JAPPIE JA and REVELAS AJA agreed
APPEARANCES:
For the Appellant: Adv. A. Mosaum
Instructed by: Bowman Gilfillan Inc
For the Respondent: Mr. MES Makinta
Instructed by : ES Makinta Attorneys
Date of Judgment: 12 March 2010