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[2015] ZALAC 4
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General Motors (Pty) Limited v Numsa Obo Ruiters (PA 8/12) [2015] ZALAC 4; [2015] 5 BLLR 464 (LAC); (2015) 36 ILJ 1493 (LAC) (22 January 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Appeal Court of South Africa, PORT ELIZABETH
JUDGMENT
Case
no. PA 8/12
DATE:
22 JANUARY 2015
Reportable
In
the matter between:
GENERAL MOTORS
(PTY) LIMITED
..............................
Appellant
(Third Respondent
in the Court
a
quo
)
And
NUMSA
obo
RUITERS
......................................................
Respondent
(Applicant in the
Court
a quo
)
Heard: 25 March
2014
Delivered: 22
January 2015
Summary: Review:
Dismissal on ground of incapacity –
Onus
- Duty of
employer to investigate all possible alternatives short of dismissal,
accords with
onus
, on employer, of proving fairness of
dismissal -
In casu
, issue of specific alternative placement
of employee raised both at incapacity inquiry and arbitration, but
not pursued and properly
investigated by employer. Appeal against
LC’s judgment remitting the matter for fresh arbitration,
dismissed with costs.
Coram: Ndlovu JA,
Molemela
ET
Sutherland AJJA
JUDGMENT
NDLOVU JA
Introduction
[1]
This is an appeal against part of the judgment and order of the
Labour Court (Lagrange J) handed down on 11 May 2012. The Court
a
quo
granted the appellant leave to appeal.
[2]
The appellant, General Motors (Pty) Limited, carries on business of
car manufacturing and has its principal place of business
in Port
Elizabeth. On 6 October 2003, the appellant and the respondent trade
union, the National Union of Metalworkers of South
Africa (NUMSA or
the union) concluded a collective agreement, known as the “Sick
Absence Control Procedures” (the SACP),
[1]
which came into effect on 7 October 2003. The SACP was the
culmination of deliberations between the appellant and the union
following
upon the employees’ industrial action that had
carried on for some time, having been occasioned by the dispute over
the appellant’s
‘sick absence’ policy.
[3]
NUMSA instituted this litigation on behalf of two of its members,
namely, Mr Ruiters and Ms Chantel Charmaine Piet. However,
given the
fact that the appellant succeeded in its review application in
relation to Piet’s matter, this appeal was lodged
only in
respect of Ruiters.
Factual
background
[4]
Ruiters was employed by the appellant as a team leader in the general
assembly/manufacturing department. As part of his duties,
he worked
as a “stand-in” or relief in the place of an employee,
within his team, who was absent. His department involved
the actual
building stages of vehicles and, thus, required some degree of
physical capability on the part of any worker in that
department. In
the meantime, Ruiters sustained an injury on his left wrist or hand,
an incident which occurred outside of the workplace,
reportedly
during a rugby training. The injury affected his work performance as
a team leader, in that he could no longer be able
to stand in for a
team member who was absent. He also suffered from hypertension.
[5]
On the recommendation of Dr Franzt Struwig, the appellant’s
medical officer, Ruiters was moved to another work area within
the
same department, but where there was less employee absenteeism. In
other words, it was an area where Ruiters would not be required
to
perform “stand-in” duties more often. However, soon after
being moved to the new work area, Ruiters complained that
his right
hand had also been affected and that he could no longer use it as
well. According to the appellant, all possible alternative
placements
were considered to accommodate Ruiters, but without success.
[6]
Consequently, on 3 December 2007, the inquiry, as envisaged in clause
5.5 of the SACP (the incapacity inquiry), was held against
Ruiters.
On or about 12 December 2007, he was found to be permanently
incapacitated to perform his duties. He was accordingly dismissed
on
the ground of incapacity.
[7]
Ruiters was not satisfied with his dismissal, which he alleged was
both procedurally and substantively unfair. Thus, he referred
an
unfair dismissal dispute to the CCMA (the first respondent in the
Court
a quo
) for conciliation.
The arbitration
[8]
The conciliation process failed and a certificate to that effect was
issued. The matter then went to arbitration before the
CCMA
commissioner, Mr Luvuyo Bono, who was cited in the Court
a quo
as the second respondent (the commissioner).
[9]
Relevant to the matter of Ruiters, the appellant called, at the
arbitration hearing, three witnesses, who were all its employees
at
the time, namely, Mr Benjamin Fouche; Mr Fredericks, Mr Billy Felix
and Dr Franzt Struwig. The import of the evidence for the
appellant
was that everything possible had been done to accommodate Ruiters’
physical indisposition within the workplace,
but unsuccessfully.
[10]
Felix was the only witness for the appellant whose testimony
suggested that at some point he played some direct role in attempting
to find Ruiters some alternative placement. According to his
evidence, he was a human resources (HR) representative, although it
did appear that he had some kind of supervisory capacity over
Ruiters. As a matter of fact, it was not clear from the evidence
generally as to who exactly was Ruiters’ immediate supervisor,
that is, whom he reported to. For instance, at different places
of
the record there was mention of body shop managers, Mr Suthamen
Naidoo
[2]
and Mr Des van der
Berg,
[3]
as possibly having had
some degree of supervision over Ruiters. However, for the present
purpose, nothing turns on that aspect.
[11]
According to Felix, Ruiters was referred to Dr Struwig who, after
examining him, addressed a note to the HR department, recommending
that Ruiters be allocated to another area where the use of his left
injured hand would not be required most of the time. As a result,
Ruiters was allocated to another area within the general assembly
department and with less regular absenteeism, which meant that
he
would not be required to stand in for absent employees more often.
However, in due course, Felix received a report that Ruiters’
right hand had also been affected and that he could not use it as
well. Bearing in mind that Ruiters had some quality control
experience, Felix said he then liaised with the quality control
manager, Mr Desmond Malussi, for assistance. However, there was
no
available position in that section because, at the time, it was also
undergoing some restructuring. In the meantime, Felix was
moved to
another area or section and, thus, could not deal with Ruiters’
matter anymore.
[12]
During cross-examination, it was put to Felix by the union’s
representative that a certain document was produced at Ruiters’
incapacity inquiry to the effect that Ruiters could drive and further
that one of the witnesses at the inquiry, Mr S Naidoo, the
body shop
manager, had said that if the issue of Ruiters’ driving ability
could be cleared with the appellant’s doctor
(presumably Dr
Struwig) then Ruiters could be accommodated in the position of a
driver. However, Felix hastened to deny any knowledge
of Ruiters
having been offered a driving position, or even that issue being
discussed at all in his presence. According to him,
Ruiters had never
performed any driving duties. He insisted that Ruiters was only a
team leader in the general assembly department,
which had nothing to
do with driving duties. It was put to him that, according to Ruiters
he had, from time to time assisted with
driving duties and further
that, in any event, there was no evidence from the appellant to show
that it had properly inquired about
this issue.
[13]
The medical notes compiled by Dr Struwig and submitted with the
arbitration record reflected that Dr Struwig saw Ruiters as
early as
on 20 April 2006, in connection with the left hand/arm/wrist problem.
He saw him again on 1 February 2007. He further
confirmed that on 15
May 2007 Ruiters was re-evaluated by a private specialist orthopaedic
surgeon, Dr Ngcelwane, who at that stage
suggested that alternative
duties be considered for Ruiters.
[4]
[14]
Dr Struwig testified that another meeting was held on 7 June 2007 at
which the following persons were present: Dr Struwig,
Mr Fredericks,
Mr Ingmar Heynsen, Mr Mark Human (the union representative) and Mr
Ruiters. He referred to an entry that he made
in his medical notes,
in relation to that meeting of 7 June 2007, which read as follows
[5]
:
‘
Discussion
regarding present condition and possible alternative placement.
Ingmar is at present accommodating Ruiters as best he
can regarding
job placement. Ingmar will speak to Andre for alternative placement.
Further communication will take place via e-mail.’
[15] Dr Struwig
continued with his evidence before the commissioner:
‘
In
my opinion, we pursued all the avenues open, we consulted with the
patient, with management, and also with his treating specialist
on
more than one occasion. And at the end the recommendation regarding
his fitness of whether he can continue work, came actually
from the
specialist stating that he feels that his condition is of such a
nature that he cannot perform his normal duties
[6]
.
…
I
think we must be guided by Dr Makwane [Ngcelwane?] who actually
stated that the wrist that was operated on (sic), developed
osteoarthritic
changes, meaning that there is a premature ageing of
the wrist, and then we also X-rayed the so-called normal wrist, which
is the
right wrist and that showed signs of osteopenia, which just
means decalcification of that joint. He also showed symptoms and
signs
of repetitive strain injury on the right side, because he was
compensating with the right wrist, trying to do more of the work with
the right wrist.’
[7]
.
[16]
According to Dr Struwig, he last examined Ruiters on 18 October 2007
and issued his final report on that day.
[8]
In that report, he commented on Ruiters’ condition,
inter
alia
,
as follows:
‘
Known
with chronic permanent condition of L wrist – no improvement. R
wrist also problematic now with swelling and pain. Unable
to fulfil
all the requirements expected of the team leader – able to do
supervisory duties, but not the “stand-in”
production
activities.’
[17]
Following on his report of 18 October 2007, referred to above, Dr
Struwig sent an email to Ms Wilson, on 23 October 2007, in
which he
confirmed the following:
‘
I
evaluated this gentleman [Ruiters] on the 18/10/2007 again and came
to the following conclusion:
·
Job title: Team Leader
·
Patient utilized Trim1 Station1
·
Known with previous surgery to R wrist with
secondary limitation of movement and osteo-arthritic and osteoporotic
changes
·
Employee able to fulfil supervisory work,
but not the production activities, as required from a team leader
·
His condition is unlikely to improve, but
may deteriorate, due to further osteoarthritis that may set in
·
Alternative placement should thus be
sought
·
Patient consulted with his specialist on
22/10/07
·
He will have to get input from the
specialist whether medical boarding is an option or not
Please
let us know if we can assist further with the management of this
case.’
(
Underlined
for emphasis
)
[18]
Ruiters testified that it was initially his injured left hand that
caused him trouble at work. It was swollen and he could
not properly
handle anything. When he started using his right hand, it also ended
up getting swollen. He further said he had explained
to the
appellant’s doctor that he could drive and that the doctor had
cleared him as being fit to perform driving duties.
However, the
appellant did not offer him a driving position as an alternative
placement in order to accommodate his situation.
He further pointed
out that he had approached at least five officials within the
appellant,
[9]
asking for
assistance to his problem. All these officials simply promised to do
something, yet they did nothing to assist him.
[19]
At the conclusion of the hearing, the commissioner stated as follows:
‘
It
is common cause that Ruiters had numerous consultations with Dr
Struwig, and while his illness started off with the left wrist
which
Dr Ngcelwane, the employee’s private orthopaedic surgeon found
to be permanently incapacitated, Ruiters’ right
arm had also
been affected, which meant that Ruiters would struggle to work with
any of his arms. The fact that the employee testified
that he is well
cannot carry much weight as he had no medical evidence to back up his
case. It is common cause that the employer
accommodated Ruiters.
Consequently it is my view that the [employer] acted reasonably in
the matter of Ruiters.’
[20]
On this basis, the commissioner declared that the dismissal of
Ruiters was both procedurally and substantively fair. Hence
his claim
was dismissed.
The
Labour Court
[21]
Thereupon the union, on behalf of Ruiters, took the matter up on
review with the Labour Court in terms of section 145 of the
Labour
Relations Act
[10]
(the LRA),
complaining that the commissioner “
committed
a gross irregularity in the proceedings by failing to apply his mind
properly to the procedural and substantive fairness
of the
dismissal.”
However, as indicated earlier, the main ground of review
(subsequently dubbed as ‘
the
fourth ground of review’)
was
that the commissioner committed a gross irregularity in the conduct
of arbitration proceedings in that he failed to take into
account
that the appellant had not made any effort to accommodate Ruiters in
the alternative position of a driver, despite the
fact that Ruiters’
and Piet’s “
supervisors
were of the view that [Ruiters and Piet] could be accommodated in
different work areas.”
[22]
In response, it was submitted on behalf of the appellant that the
evidence before the commissioner supported the conclusion
that
Ruiters’ incapacity rendered him unfit to perform his duties in
terms of his contractual obligations with the appellant.
It was
further submitted that there was no evidence before the commissioner
which established that there existed an alternative
position to which
Ruiters could be deployed. Further, that during the evidence no such
alternative position was specifically identified
by Ruiters or on his
behalf, nor was any suggestion to that effect put to the appellant’s
representative for his comment.
[23]
In his analysis and evaluation of evidence, the learned Judge
a
quo
stated the following:
‘
[18]
… For the purposes of evaluating the fourth ground, I am
satisfied that [this] ground of review narrowly construed,
did not
concern evidence given by the employees’ supervisors at the
arbitration. However, the evidence given by Ruiters’
supervisor
at the internal inquiry was canvassed directly with Mr Felix at the
arbitration hearing. In the circumstances that evidence
is
sufficiently close to the issue described in the stated ground of
review to warrant consideration. The consideration of whether
another
alternative job for Ruiters was explored would have had implications
for the arbitrator’s conclusion that [the appellant]
had acted
reasonably towards him. …
[21] There was
evidence that Felix was questioned quite extensively on the question
of whether an alternative position as a driver
was considered. This
was done in the context of asking him about the evidence of Ruiters’
supervisor in the original enquiry
about a position as a driver. What
is apparent is that the issue of a possible driving position was
discussed, but once Ruiters
had provided a certificate from his
doctor to the effect that he could drive, the matter was not taken
further by the company,
which is a point the arbitrator pertinently
noted when this evidence was being given.
[22] Thus, whatever
the true condition of Ruiters was in relation to his ability to
perform his original duties on the supposedly
easier trim line, there
was a basis laid in evidence that an alternative position as a driver
was canvassed but there was no follow
through to investigate this as
an alternative. The arbitrator, who was obviously aware of this
issue, does not seem to have evaluated
this when he evaluated the
reasonableness of the employer’s consideration of alternatives.
…
[26] On balance, I
believe that there is some merit in relation to the criticism that
the arbitrator appears to have failed to give
any consideration to
evidence about a possible alternative placement for Ruiters as a
driver and that this was a material issue
he ought to have taken into
account, as it had a direct bearing on his conclusion that the
employer acted reasonably in relation
to Ruiters. In the
circumstances, I think this had the effect of depriving Ruiters of a
fair hearing.’
[24]
Hence, the Court
a quo
reviewed and set aside the
commissioner’s finding that Ruiters’ dismissal was
procedurally and substantively unfair.
The Court directed that the
CCMA “
must convene a fresh arbitration hearing before a
commissioner other than [Luvuyo Bono], to determine whether or not Mr
Ruiters
was fairly dismissed for incapacity.”
It is against
this decision of the Court
a quo
that the appellant now
appeals to this Court.
The appeal
[25]
The appellant submitted a comprehensive catalogue of grounds of
appeal, which can be summarised as follows:
25.1
That the Court
a quo
erred in holding that the
fourth review
ground had to be considered in the context of the evidence given by
Felix at the arbitration hearing, on the issue of whether Ruiters
was
offered the alternative position of a driver.
25.2 That the Court
a quo
erred in failing to hold that “the minute”
of Ruiters’ internal incapacity enquiry was inadmissible, given
the
fact that it was not admitted by the appellant nor properly
authenticated in evidence by or on behalf of Ruiters.
25.3 That the Court
a quo
erred in failing to recognise that there was no reliable
medical evidence that Ruiters was indeed capable of taking up any
driving
position, given the condition of both his hands.
25.4
That the Court
a quo
erred in reviewing and setting aside the
commissioner’s finding that Ruiters’ dismissal was
substantively and procedurally
fair.
[26]
Mr
Partington
,
for the appellant, submitted that the Court
a
quo
was wrong in declaring that
[11]
“
the
evidence given by Ruiters’ supervisor [presumably Naidoo] at
the internal enquiry was canvassed directly with Mr Felix
at the
arbitration hearing. [And that] [i]n the circumstances, that evidence
is sufficiently close to the issue described in the
[fourth] ground
of review to warrant consideration.”
He
submitted that as the factual basis of the fourth review ground was
that Ruiters’ supervisor(s) were of the view that Ruiters
could
be accommodated in another area, it followed that this was the review
ground that the appellant was called upon to meet.
[27]
Counsel contended that the important issue was not about what
questions were put to Felix at the arbitration hearing concerning
whether Ruiters was offered the position of driving, but rather what
responses Felix gave to those questions. In his evidence,
Felix made
it clear that he knew nothing about what happened at the incapacity
inquiry as he was not there. It was during the inquiry
proceedings
that certain questions were raised and answered about the possibility
of offering Ruiters the alternative position
of driving. The
questions were raised with, and answered by, Sadam Naidoo,
[12]
who was one of appellant’s witnesses at the inquiry, but who
did not testify at the arbitration hearing. Instead, at the
arbitration hearing, the issue was raised with Felix who knew nothing
about it. Counsel submitted that since Ruiters sought to
rely on a
statement that was allegedly made by Naidoo, then it was incumbent on
Ruiters to have called Naidoo as his witness at
the arbitration
hearing. Therefore, the commissioner was entitled to have disregarded
any reference to statements allegedly made
by Naidoo at the
incapacity inquiry, which counsel termed as “
second-hand
hearsay”
.
[28]
Mr
Partington
further submitted that in the event of the Court
not being satisfied as to the reasonableness of the commissioner’s
award,
the appropriate remedy would be to remit the matter for a
fresh inquiry on the question of whether any alternative position was
available in which to accommodate Ruiters. This is basically what the
Court
a quo
decided.
[29]
Mr
Grogan
, appearing for the union and Ruiters, pointed out
that this appeal sought to reverse a judgment which did not find
Ruiters’
dismissal to be substantively unfair and ordered his
reinstatement, but a judgment which only remitted the matter to the
CCMA for
reconsideration. He submitted that the commissioner based
his conclusion on the incorrect premise when the commissioner stated:
“
It is common cause that the employer accommodated Ruiters.
Consequently it is my view that the Respondent acted reasonably in
the
matter of Ruiters.”
This statement was obviously
incorrect because the question of whether Ruiters was accommodated
was in dispute and, therefore, not
common cause.
[30]
Counsel further submitted that the Court
a
quo
was entitled not to confine itself
strictly to the “fourth review ground” but to consider
the matter more broadly,
in terms of the relevant provisions of the
code of good practice on dismissal for incapacity.
Evaluation
[31]
In terms of the
Sidumo
review test, in order to pass muster of judicial review for
reasonableness under section 145 of the LRA, an arbitration award
must be one falling within the range of decisions which a reasonable
decision-maker could have made in the circumstances.
[13]
The Supreme Court of Appeal, in
Herholdt
v Nedbank (Cosatu as amicus curiae),
[14]
restated the test in the following terms:
‘
While
the evidence must necessarily be scrutinized to determine whether the
outcome was reasonable, the reviewing court must always
be alert to
remind itself that it must avoid “judicial overzealousness”
in setting aside administrative decisions that
do not coincide with
the judge’s own opinions. ...A result will only be unreasonable
if it is one that a reasonable arbitrator
could not reach on all the
material that was before the arbitrator. Material errors of fact as
well as the weight and relevance
to be attached to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence
if their effect is to render the
outcome unreasonable.’
[32]
The Code of Good Practice: Dismissal for Incapacity arising from ill
health or injury provides,
inter alia
, as follows:
‘
10
Incapacity: Ill health or injury
(1)
Incapacity on the grounds of ill health or
injury may be temporary or permanent. If an employee is temporarily
unable to work in
these circumstances, the employer should
investigate the extent of the incapacity or the injury. If the
employee is likely to be
absent for a time that is unreasonably long
in the circumstances, the employer should investigate all the
possible alternatives
short of dismissal. When alternatives are
considered, relevant factors might include the nature of the job, the
period of absence,
the seriousness of the illness or injury and the
possibility of securing a temporary replacement for the ill or
injured employee.
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.
(2)
In the process of the investigation
referred to in subsection (1) the employee should be allowed to state
a case in response and
to be assistance by a trade union
representative or fellow employee.
11 Guidelines in
cases of dismissal arising from ill health or injury
Any person
determining whether a
dismissal
arising from ill health or
injury is unfair should consider –
(a)
whether or not the
employee
is capable of performing the work;
(b)
if the
employee
is not capable –
(i)
the extent to which the
employee
is able to perform the work;
(ii)
the extent to which the
employee’s
work circumstances might be adapted to
accommodate disability, or, where this is not possible, the extent to
which the
employee’s
duties
might be adapted; and
(iii)
the availability of any suitable
alternative work.’
[33]
To the extent relevant, the SACP provided as follows:
‘
1.
PREAMBLE
The contracts
applicable to all Delta employees provide that regular attendance
remains a contractual obligation, and that a failure
to observe this
obligation will reflect upon an employee’s capacity, entitling
Delta to terminate the employee’s services.
2.
OBJECTIVE
The Company shall
implement a counselling system in order:
2.1 To identify
difficulties encountered in regard to poor attendance caused by sick
absence.
2.2 To offer
meaningful support and assistance where reasonably possible.
2.3
To advise employees of the impact which continuing sick absence will
have upon their capacity to perform the functions for which
they are
employed.
2.4 To address sick
absence in a manner which is both procedurally and substantively
fair,
within a control procedure that is consistent with the
provisions of the Code of Good Practice – Schedule 8 of the
Labour
Relations Act, with specific reference to clauses 10 and 11
.
(Underlined for emphasis)
4.
SICK
ABSENCE THRESHOLD
4.1 The extent to
which Delta will accommodate an employee’s sick absence will
correspond with the limits set by the Basic
Conditions of Employment
Act.
4.2 The threshold
thus set, will be one of 30 days’ sick absence within a 3 year
cycle.
4.3 The 3 year cycle
will coincide with that provided for in the BCEA i.e. the first cycle
will be deemed to commence on the employee’s
date of engagement
with the Company, with subsequent cycles commencing upon the expiry
of the preceding one.
5.
COUNSELLING
& INQUIRY PROCEDURES
Counselling will be
conducted in accordance with Schedule 2 – “Keys to
Success in Counselling”.
5.1
10 DAYS SICK ABSENCE OR MORE
Any employee who
accumulates 10 days sick absence within any 3 year cycle will be
counselled for the purpose of identifying difficulties
encountered in
regard to his/her attendance and with a view to offering meaningful
support and assistance where possible.
The obligation to
identify to the Company at the earliest opportunity issues which may
be capable of being addressed by such support
and assistance, remains
with the employee.
In addition, the
employee will be advised of the consequences of continuing or
extended sick absence.
5.2
20
DAYS SICK ABSENCE OR MORE
Any employee who
accumulates 20 days sick absence within any 3 year cycle will be
counselled for the purposes set out above, and
will be advised of the
consequences of continuing or extended absence.
5.3
REACHING
THE LIMIT OF 30 DAYS
Any employee who
during any period of sick absence, reaches the limit of 30 days of
sick absence within any 3 year cycle, will be
counselled for the
purposes set out above, and will be advised of the consequences of
continuing or extended sick absence.
5.4 EXCEEDING THE
LIMIT OF 30 DAYS
Any employee who
during any period of sick absence, exceeds the limit of 30 days of
sick absence within any 3 year cycle, will be
counselled for the
purposes set out above. Furthermore, the employee will be advised
that, in the event of one further incident
of sick absence, he/she
will be called upon to attend a capacity inquiry. The employee will
also be advised that his/her services
may be terminated in the event
of such an inquiry.
5.5
CAPACITY
INQUIRY
Any employee who has
received a counselling in terms of 5.4 above, and who accumulates one
further incident of sick absence within
the 3 year cycle, will be
called upon to attend an inquiry for the purposes referred to above.
Such inquiry will be consistent
with the provisions of the Code of
Good Practice – Schedule 8 of the Labour Relations Act’.
[34]
It is significant to note that the underlying objective of the SACP
appears to be its compliance with the provisions of items
10 and 11
of the Code of Good Practice. In other words, the appellant
recognised the risk that non-compliance with those provisions
would
potentially render termination of an employee’s employment on
the ground of incapacity, both procedurally and substantively
unfair.
In
IMATU
obo Strydom v Witzenberg Municipality,
[15]
this Court (per Molemela AJA, as she then was) stated
[16]
:
‘
[7]
I must mention that I have no doubt in my mind that permanent
incapacity arising from ill-health or injury is recognised as
a
legitimate reason for terminating an employment relationship and thus
an employer is not obliged to retain an employee who is
permanently
incapacitated if such employee’s working circumstances or
duties cannot be adapted. A dismissal would, under
such circumstances
be fair, provided that it was predicated on a proper investigation
into the extent of the incapacity, as well
as a consideration of
possible alternatives to dismissal.
[8]
The afore-mentioned obligations of the employer as set out in items
10 and 11 of Schedule 8 to
the LRA are
inter-related with similar obligations in the
Employment Equity
Act 55 of 1998
. In their work
Employment Equity
Law
2001: 7–3 to 7–4, JL Pretorius
et
al
submit that the duty of reasonable accommodation of
employees by employers is not confined to the
Employment Equity Act
but
“is a duty that is implied in the concept of unfair
discrimination in a general sense” and “is one of the
judicial
and legislative tools for realising substantive equality”.
I agree with this submission. Surely non-compliance with such an
important constitutional imperative would not only impact on
procedural fairness but on the substantive fairness of the dismissal
as well?
[9]
I am of the view that the provisions of items 10 and 11 are
inextricably tied and thus non-compliance therewith would render
a
dismissal both procedurally and substantively unfair…’
[35]
It was common cause that as at 11 May 2007 (in a three year sick
leave cycle commencing 3 June 2005 and ending 3 June 2008)
Ruiters
had absented himself from work on sick leave for a period in excess
of 30 days’ limit, in contravention of the SACP.
Prior to that
stage, he had been issued with warning letters when he reached the 10
days’ and 20 days’ mark, respectively,
and had further
been invited to complete the Request for Assistance form, in case he
sought any assistance from the appellant toward
resolving his sick
absence problem. It was also common cause that at no stage did he
request for any assistance from the appellant
in this regard.
[36]
It is trite that the
onus
was on the appellant to prove to the commissioner that Ruiters’
dismissal was fair.
[17]
Now,
the question is whether there was any evidence adduced in the
arbitration to the effect that Ruiters could be accommodated
elsewhere within the appellant. It seems to me that this aspect only
appears in the evidence of Felix. In his evidence-in-chief,
on this
issue, he stated as follows
[18]
:
‘
In
the case of Mr Ruiters, he had an injury to his left arm and he went
to see our medical practitioner, Dr Struwig, who then subsequently
wrote a note through to myself as the HR representative, as well as
his shop manager, Mr Des van der Berg, to request that we accommodate
[Ruiters] in another capacity, within the manufacturing environment.
From my side, I basically had several interactions with [Ruiters]
as
well as his representative at the time. If I can recall, it was Mr
Mark Human, asking them to come up with suggestions in terms
of where
exactly I can accommodate Mr Ruiters. We, within the shop, that is
the general assembly, then decided with (sic) in consultation
with
the shop manager, that we were going to move him from the one area to
another area, where there is basically stable attendance
within the
team, which did not require him to be on-line physically that often.
Whilst he was there, it was again brought under
my attention that
[Ruiters] cannot do all the functions in that team, due to his injury
to his left arm. I then again set up a
session with him and the shop
steward, as well as the medical practitioner, to basically discuss
again, what other alternatives
we have in his case. Out of that
meeting I then basically went back and I confronted the quality
manager, Mr Desmond Malussi, and
asked him whether or not he could
accommodate Mr Ruiters within the quality division, knowing that Mr
Ruiters had a quality background.
Mr Malussi could not really
accommodate him and at the time, we were also basically going through
some form of restructuring within
the organisation, and the only area
that we could then accommodate him, was in the Hummer area. The
problem with the Hummer area
was that we would require Mr Ruiters
then to be able to perform the functions of the team members within
the team. Because of the
fact that he could not really perform all of
those functions, we then scheduled another meeting and it was more or
less in July
of that year, if my memory serves me correct, I moved
out of the plant into a different role and one of my colleagues then
took
over from me.’
[37]
Under cross-examination, the following exchanges appear in the
arbitration record, between the union representative and Felix:
[19]
‘
REP
FOR APPLICANTS: The version that applicant will present here [is]
that he was able to drive, which was his function.
MR FELIX: His
function was not to drive.
REP FOR APPLICANTS:
What was his function?
MR FELIX: It was not
to drive.
REP FOR APPLICANTS:
What was it?
MR FELIX: His
function was that of a team leader, on the moving assembly line. At
no stage was he required to drive a vehicle. He
was still building
the vehicle in his role as a team leader on the line. …. I am
telling you at no stage was driving part
of Gavin Ruiters’
functions. He was a team leader, on the assembly line.
REP FOR APPLICANTS:
You said as a team leader he will do the function of team members.
MR FELIX: Correct,
yes.
REP FOR APPLICANTS:
The issue of driving cars in that department was also part of the
team members.
MR FELIX: No, let me
explain to you, Ronnie. The vehicle basically comes down the line,
okay, and at every single station, a different
part is being put onto
the vehicle. Okay, it is only at the final, that the vehicle is
driven. Okay. Now Gavin was part of the
area where they were still
building the vehicle. There is no driving involved there at all. That
is why I am saying to you at no
stage was he driving or his team
members driving. If he was to stand in for the team members, it would
be in their function as
assemblers. Not as drivers. …
REP FOR APPLICANTS:
But the applicant’s version will be from time to time he as
assisting with that. … The manager
of the department [Mr
Naidoo] says if that is cleared, that [Ruiters] can drive a vehicle,
it is clear that he can be accommodated.
Now the question is,
was
that process initiated, do you have any evidence that process was
indeed initiated
? …
MR FELIX: Like I
said to you, I basically handed over to Shalane Wilson at the time
who took over from me. So I was not involved
in this process. What I
can tell you, is that as I said earlier on, at no stage was it part
and parcel of his team, neither function
as to drive (sic), nor was
it that of his team members’. (
Underlined for emphasis
)
[38]
Towards the conclusion of Felix’s evidence, the commissioner
canvassed with him the issue of whether the position of
a driver was
ever offered to Ruiters:
[20]
‘
COMMISSIONER:
Okay. Just one issue that I wanted to address. I do not know if you
are going to be able to respond to it, is whether
the issue of Mr
Ruiters being accommodated or being offered a position of a driver. I
do not know what is this, whether that was
a driver at (indistinct),
or whether it was a driver elsewhere; it just says driver. …
The issue had been explored
in coming to the decision, to dismiss.
But perhaps before I get to that. The minutes reflect that the issue
was raised during the
HR meetings. Are you aware of the issue?
MR FELIX: No, Mr
Commissioner. The driving issue?
COMMISSIONER: Yes,
the driving issue.
MR FELIX: Being
raised during that meeting?
COMMISSIONER: Yes.
MR FELIX: Not with
my involvement.
COMMISSIONER: Not
with your involvement. Okay. Do you know if it was ever dealt with at
the enquiry?
MR FELIX: No, Mr
Commissioner.’
[39]
As pointed out, the above-quoted excerpts of Felix’s evidence
comprised the only evidence adduced in the arbitration
pertaining to
whether Ruiters was considered for an alternative position of
driving. Whether Felix was Ruiters’ supervisor
or one of his
supervisors, it is not clear from the arbitration record. What is
clear is that nowhere in his evidence did Felix
ever say that he was
of the view that Ruiters could be accommodated in other different
work areas within the appellant, as alleged
by Ruiters in the fourth
review ground. However, it is also clear that during the arbitration
hearing, it was put to Felix that
at Ruiters’ incapacity
inquiry, the issue of
driving
as an alternative was discussed
but not pursued by the appellant. To that question, Felix could
neither admit nor deny, since he
was personally not involved at the
incapacity inquiry. Of course, this question was raised with
reference to some excerpts from
a document purporting to be minutes
of the incapacity inquiry which formed part of the material presented
to the commissioner.
[40]
Mr Partington submitted that since the inquiry minutes were not
admitted as evidence at the arbitration, evidence given by
Naidoo in
the inquiry constituted inadmissible hearsay. However, it is common
cause that no objection was raised by the appellant,
at the
arbitration hearing, against Ruiters’ representative referring
to and relying on the contents of the inquiry minutes.
Ironically,
the appellant also relied on the contents of several documents in the
arbitration bundle, such as letters and emails
written by the
appellant’s non-witnesses, without the same having been
formally admitted in the arbitration.
[41]
Therefore, it seems to me that the objection, at this stage, against
reference to the contents of the inquiry minutes, which
after all
formed part of the material presented to, and considered by, the
commissioner, is disingenuous and opportunistic on the
part of the
appellant. Hence, the Court
a quo
was correct, in my view, to
hold that “
the evidence given by Ruiters’ supervisor
[presumably Mr S Naidoo] at the internal [capacity] inquiry was
canvassed directly
with Mr Felix at the arbitration hearing [and
that] in the circumstances, that evidence is sufficiently close to
the issue described
in the stated [fourth] ground of review to
warrant consideration.”
[42]
I do not agree with counsel’s submission that it was
necessarily incumbent on Ruiters to call, as his witnesses, employees
of the appellant such as Naidoo and others, to testify at the
arbitration and rebut the appellant’s claim that the appellant
had exhausted all reasonable options to accommodate Ruiters. Indeed,
if the appellant did not adduce any positive evidence in support
of
its claim, as it did not, there was nothing for Ruiters to rebut.
After all, the
onus
always remained on the appellant, as the employer, to satisfy the
commissioner on a balance of probabilities that the dismissal
of
Ruiters for the reason of incapacity was fair. This was besides the
fact that, given the existing working relationship of the
appellant
vis-à-vis
those potential witnesses, it would have been more convenient and
effective of the appellant to have called them to come and testify
at
the arbitration. Furthermore, in situations such as the present, an
employer should always bear in mind that it has a duty to
investigate
all possible alternatives short of dismissal, before resorting to
dismissing an employee.
[21]
This duty accords with the
onus
,
on the employer, of proving the fairness of dismissal, already
alluded to.
[43]
In any event, it was part of Ruiters’ testimony that there was
talk about him being offered an alternative position of
driving, but
that the issue was not pursued. In other words, this was not only
something gathered from the inquiry minutes. That
being the case,
there was nothing wrong with this allegation being raised during
cross-examination of any of the appellant’s
witnesses,
regardless of whether the witness concerned knew about the issue or
not, in order to apprise the appellant of Ruiters’
case. So,
the allegation was not raised for the first time, and as a surprise,
during Ruiters’ evidence. In the circumstances,
it was
incumbent on the appellant to call a witness who would testify and
refute the allegation, which the appellant failed to
do.
[44]
It seems clear, in my view, that, by the word ‘
driving’,
in the present context, was not meant only the ordinary driving
of a vehicle in terms of any road traffic legislation, but it
essentially
referred to “
shunting”
driveable
vehicles “
under construction”
from one work
station to another within the appellant’s car assembly
workshop. According to Ruiters, he was capable and fit
to undertake
such driving duties. In his evidence he stated, in this regard:
‘
What
happened, in short, I was wearing a brace in my left-hand, working
regularly, but it started not (sic) swelling, my left hand
and then
my right hand also starts swelling and it goes up and then I reported
this that my arm is swollen up and I could not grab
properly. Then it
is thereby [that] they started coming up with this idea of I must get
someone to work in my position, to swop
with someone but I went to my
doctor and then explained this to him, and that he told me that I can
drive, whether I do have a
licence of a company licence, but
he
cleared me that I am fit to drive any vehicle
.
…
The doctors, they
sent it (sic) to my specialist, Dr Malwani [Ngcelwane ?] Then Malwani
gave me the report and I bring the report
to the company.
On my
report Malwani stated that there are still more years that I can
offer to the company
.’
(Underlined for
emphasis)
[45]
Ruiters’ evidence, to the effect that his specialist certified
that he could still offer more years to the company, was
also not
contradicted. Indeed, the medical report dated 19 July 2007, under
the letterhead of Dr Ngcelwane, a specialist orthopaedic
surgeon,
[22]
certified as follows:
‘
RE:
MR GAVIN RUITERS
The above named has
post traumatic osteoarthritis of the left distal radio-ulna joint
following a distal radius fracture.
His problem is that
of endurance, he gets pain on the left wrist when he is doing his
job, which apparently involves a lot of handling
with the hand.
He
is not really disabled
, but apparently gets a lot of discomfort
midway through his working day.
It would benefit
this workman a lot if he were to be moved.
His fear, rightly
so, is that he may be dismissed as a non-performer, if he continues
in his present job. (
I feel that he has many more years to come
)
I write on his
behalf asking if a suitable job could be found for him in the
company.
Yours faithfully
M.V. NGCELWANE
(Signed)’
(Underlined
for emphasis)
[46]
Clearly, at the time Dr Ngcelwane issued the certificate, above, it
was still only the left hand that gave Ruiters the problem.
Despite
the doctor’s suggestion that Ruiters be moved “
to an
area in the factory which does not demand a lot on his left wrist”,
nothing seems to have been done about it, until Ruiters’
right hand was also affected. Indeed, on 24 August 2007, the
appellant’s
senior production co-ordinator, Mr Ingamar Heynsen,
addressed an email to the senior HR business partner, Ms Charlaine
Wilson,
which recorded the following:
‘
We
currently have a situation where Gavin Ruiters co:no 22615 is no
longer able to perform the physical aspects of his job because
of the
condition of his right arm and hand. We tried to look at suitable
placement within our area but in each area there is some
measure of
physical activity. Could you please assist in this regard in finding
a solution to this problem.’
[47]
Mr Heynsen’s email of 24 August 2007, pleading for assistance,
was also apparently not taken up urgently by the HR department,
until
only on 9 October 2007 when Wilson circulated an email to various
recipients, namely: Naidoo Suthamen, Abrahams Saadick,
Milisi
Desmond, Liebenberg Stan, Dickens Ronnie and Moller Wynand. The copy
of the email was sent to: Clark Angus, de Beer Hamilton,
Ah Chong
Claudina, Van Der Mercht Margery, Loggie Luaneta and Heynsen Ingamar.
To my mind, all these recipients were presumably
managers or
supervisors in the general assembly department. Wilson’s letter
read as follows
[23]
:
‘
A
General Assembly employee (G. Ruiters 22615 – Team Leader) is
no longer able to perform the physical aspects of his job
because of
the condition of his right arm and hand, his left hand has also
started paining as he tries to use his right hand as
little as
possible. According to an examination done by Dr Struwig on 15 May
2007 Mr Ruiters is unable to perform his normal duties
and we need to
investigate alternative placement for him.
Your assistance in
this matter will be greatly appreciated.’
[48]
It would appear that of all the recipients referred to above, only
two of them responded (both on 10 October 2007), that is,
Abrahams
Saadick (from material handling department) who only said (at
09h54):
[24]
“
Sorry
I cannot help”
;
and Hamilton de Beer, who wrote (at 07h31):
[25]
‘
As
a Team Leader in the Body Shop it will be required to work on line
from time to time because of absenteeism. The work as you
know is
very physical and therefore it would be difficult to accommodate Mr.
Ruiters.’
[49]
Ex
facie
the record, on the same day, i.e. 10 October 2007, at 13h15, (after
receiving responses to her email from Saadick and de Beer)
Wilson
addressed an email to Dr Struwig in which she reminded Dr Struwig
that he examined Ruiters on 15 May 2007. She further stated
in the
email: “
I
have requested that his co-ordinator schedule another appointment
with you in order to ascertain if the gentleman is fit to safely
return to work in his current position or not.”
[26]
[50]
The record further shows that on 11 October 2007, Wilson addressed
another email to Dr Struwig stating:
‘
I
know you had an appointment to examine Gavin Ruiters at 09h30 this
morning, as per my previous email, (sic) if Gavin cannot be
boarded
or cannot return to his job and safely perform his duties and we
don’t have any alternative accommodation then we
would have to
proceed with an incapacity inquiry.’
[51]
There was no indication whether any of the other recipients of
Wilson’s email ever responded thereto and that, if they
did,
what their responses were. In the appellant’s heads of
argument, the following submission is made: “
No positive
responses were received by Wilson in response to this request.”
Nor were there negative responses,
ex facie
the record,
from the majority of the email recipients. Ruiters’ complaint
is that his matter was not properly investigated
by the appellant. Ms
Wilson’s email of 9 October 2007 was ostensibly and purportedly
part of that investigation. Yet, after
only receiving two responses
on the following day, she apparently decided, in a matter of hours,
to “
move on”
and write two emails to Dr Struwig.
In the latter she appeared to suggest the route of holding a capacity
inquiry against Ruiters.
It did not appear that the majority of
recipients were accorded any reasonable opportunity to consider the
matter and respond accordingly.
In my view, such attitude and
behaviour justify an inference of a lack of
bona fides
on the
part of the appellant.
[52]
On the facts of this case, I am inclined to subscribe to the
conclusion reached by the Court
a
quo
that the commissioner “
appears
to have failed to give any consideration to evidence about a possible
alternative placement for Ruiters as a driver and
that this was a
material issue [the commissioner] ought to have taken into account,
as it had a direct bearing on [the commissioner’s]
conclusion
that the employer acted reasonably in relation to Ruiters..”
The
issue of the possibility of available alternative placement for
Ruiters was indeed raised, both at the incapacity inquiry and
arbitration hearing, in a manner which, in my view, warranted and
obligated the appellant to have investigated the matter further,
which the appellant failed to do. Felix testified that at some point
he was moved to another area and that, as a result, he handed
his
responsibility over Ruiters’ affair to Wilson.
[27]
It is common cause that Wilson did not testify at the arbitration
hearing. Thus, in my view, the appellant did not adequately and
properly investigate the issue of Ruiters’ possible alternative
placement as a driver, which was in contravention not only
of items
10 and 11 of the Code of Good Practice, but also clause 2.4 of the
SACP. To the extent that the commissioner ignored or
failed to take
account of these material issues, the commissioner, in my view, acted
unreasonably and, thus, committed an irregularity
in the conduct of
the arbitration proceedings.
[53]
Besides, the available medical evidence (from both Dr Struwig and Dr
Ngcelwane) did not support the conclusion that Ruiters
could not, at
least, be considered for accommodation in an alternative working
capacity within the appellant, such as driving.
In his final
assessment report dated 18 October 2007, Dr Struwig stated,
inter
alia
, that Ruiters (who was, after all, a designated team leader)
was still “
able to do supervisory duties”;
whilst
the specialist orthopaedic surgeon, Dr Ngcelwane, certified that
Ruiters was “
not really disabled”
and he still
“
has many more years to come”
and, for that
reason, recommended that “
a suitable job…be found for
him in the company.”
Seemingly, the commissioner ignored
this medical evidence. In doing so, the commissioner committed an
irregularity in the conduct
of the arbitration proceedings.
[54]
In the circumstances, it cannot, in my view, be said that the
commissioner’s award fell within the range of decisions
which a
reasonable decision-maker could have made, given the material
presented to the commissioner. I am, therefore, unable to
fault the
judgment of the Court
a quo
remitting the matter for a fresh
arbitration before another commissioner. Hence, the appeal falls to
be dismissed.
[55]
Concerning the issue of costs: It is noted that the judgment appealed
against is not a judgment declaring Ruiters’ dismissal
to be
unfair. It is an appeal against a judgment which only found that
sufficient information was not presented at the arbitration
hearing
to enable the commissioner to make an informed decision on the issue
of “
whether or not Mr Ruiters was fairly dismissed for
incapacity”.
Had the appellant allowed that process to take
its normal course, this matter would not have reached this level and
taken so long
to finalise. I hardly fathom any substantial prejudice
that the appellant would have possibly suffered. Accordingly, in
consideration
of the requirements of law and fairness, I determine
that the appellant must be ordered to pay the costs of the appeal.
[56]
In the result, the appeal is dismissed with costs.
Ndlovu
JA
Molemela
and Sutherlannd AJJA concur in the judgment of Ndlovu JA
APPEARANCES:
FOR
THE APPELLANT: Mr J Partington
Instructed
by Chris Baker Attorneys, Port Elizabeth
FOR
THE RESPONDENT: Mr J G Grogan
Instructed
by Gray Moodliar Attorneys, Port Elizabeth
[1]
Record
, vol 5, at 457- 461.
[2]
Record,
vol 5, at 389 lines 12 – 29. Note: It was accepted that
initials SN stood for S Naidoo, the full correct name being
Suthamen
Naidoo (see email correspondence in volume 5, at 381 - and NOT
Sudama or Sadama Naidoo as appearing in volume 2, at
77 line 1 and
at 82 line 17, respectively).
[3]
Record,
vol 2, at 75 lines line 8.
[4]
Record,
Medical
notes, vol 5 at 367.
[5]
Record,
vol 5, at 367.
[6]
Record,
vol 3, at 189 lines 3-9.
[7]
Record,
vol 3, at 190 lines 1-10.
[8]
Record,
vol 5, at 385.
[9]
He
specifically named them in his evidence.
[10]
Act
66 of 1995.
[11]
Paragraph
18 of the judgment of the Court
a
quo.
[12]
This
is presumably a typographical error, meant for Suthamen Naidoo.
[13]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC) at para 110.
[14]
2013
(6) SA 224
(SCA) at para 13.
[15]
[2012]
7 BLLR 660 (LAC).
[16]
Ibid,
at paras 8 and 9.
[17]
Section
192(2) of the LRA.
[18]
Record,
vol 2 at 75-76.
[19]
Record,
vol 2 at 84-87.
[20]
Record,
vol 2, at 106-107.
[21]
Item
10(1) of the Code of Good Practice.
[22]
Record,
vol 5, at 475.
[23]
Record,
vol 5, at 381.
[24]
Record,
vol 5, at 381.
[25]
Record,
vol 5, at 383.
[26]
Record,
vol 5, at 382.
[27]
Record,
vol 2, at 86 lines 23-25.