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[2019] ZALAC 50
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Parexel International (Pty) Ltd v Chakane N.O and Others (JA39/2018) [2019] ZALAC 50; (2019) 40 ILJ 2344 (LAC); [2019] 11 BLLR 1245 (LAC) (27 June 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA39/2018
In
the matter between:
PAREXEL
INTERNATIONAL (PTY) LTD
Appellant
and
CHAKANE,
T N.O.
First
Respondent
The
commission for conciliation
mediation
and arbitration
Second
Respondent
MOSIME-MASETI,
KEFILWE DOROTHY
Third
Respondent
Heard:
28 May 2019
Delivered:
27 June 2019
Summary:
Review
of arbitration award - dismissal on account of ill-health principle
that
an
employer not expected to tolerate an employee’s prolonged
absence from work for incapacity due to ill health and that it
may,
if it be fair in the circumstances, exercise an election to end the
employment relationship restated – held that:
The
different medical certificates provided to the employer did not
explain why the employee’s extended absence from work
had been
necessary or why her continued absence was justified. On her own
version the employee was unable to return to work and
was unable to
indicate when she may be able to do so. There was no dispute that the
employee’s position had
already
been kept open for her for more than nine months
.
Given these facts, the employer’s failure to consider
alternatives short of dismissal
was
not unfair – Labour Court’s judgment set aside and award
substituted with an order that the dismissal of the employee
was
fair.
Coram:
Waglay JP, Coppin JA and Savage AJA
JUDGMENT
SAVAGE
AJA
Introduction
[1]
This is an
appeal, with the leave of this Court, against the judgment and order
of the Labour Court in which an application to review
an arbitration
award of the first respondent (the commissioner) was dismissed with
costs.
[2]
The third
respondent (the employee), a clinical research nurse, commenced
employment with the appellant, on 1 March 2010. On 29
June 2010, the
employee was injured at work and two hours later she fainted. The
findings of the appellant’s investigation
into the incident
recorded that “
while
working at her desk,
[the employee]
opened
the door of the cupboard which hit her on the head because of loose
screws at the bottom.
[The employee]
continued
working for approximately another two hours when she fainted and hit
her head against a desk. She lost consciousness and
medical help (ER)
was contacted. The screws were fixed at the bottom of the cupboard
door. The person also mentioned that she was
not feeling well at the
night of the accident and it is recommended that [you]? she stays at
home when feeling sick.
”
[3]
A medical
report completed on 30 June 2010 by neurosurgeon, Dr H Relling,
recorded that the employee “
fainted
and fell on floor, bumped head
”.
In the same report both “
chronic
headaches? migraine
”
and “
cervical
muscle spasm
”
were recorded. A further medical report dated 7 July 2010 completed
by neurosurgeon, Dr D Hugo, recorded that the employee
had injured
her back and neck, that her head had been knocked and that she had
suffered concussion as a result of an object falling
on her at work.
[4]
In a medical
note also dated 7 July 2010, Dr N Mofolo stated that after staying
overnight in hospital, the employee was discharged
with analgesics
and that since then she had been off work vomiting with severe
headache and lower back pain. The doctor noted that
the employee
reported a lack of sensation in her left lower limb and wrote: “
P.S.
she is a known migraine patient who has been attack-free for two
years but the recent headache and vomiting could also be due
to
recurrence of the migraine as the headache is unilateral (left
side)
”.
[5]
From 1 July
2010 until 30 September 2010, the employee was on special leave and
permitted to take her full sick leave cycle quota
of 45 days and her
annual leave. Dr Hugo treated the employee on 5 November 2010 for
pain and reported that she would recover with
time. By December 2010,
the employee remained off work and the appellant assisted her with an
application for permanent disability
through Discovery Life. On 3
December 2010, Dr Hugo completed the medical report used in support
of the application in which it
was recorded that the employee had
injured her neck and back in the accident and that she would recover
with time. Discovery refused
the claim on 10 December 2010 on the
basis that the employee’s “
functional
impairments will improve with time
”
and that the impairments did not meet the necessary criteria for
disability under the musculoskeletal benefit. By 20 December
2010,
the employee had been off work for almost six months. The appellant
stopped paying her salary but continued making contributions
to
medical aid, provident fund and life cover.
[6]
On 12 January
2011, a scheduled incapacity enquiry was postponed for the employee
to provide the appellant with a medical report
regarding her
condition. Neurologist, Dr S de Kock, assessed the employee on 26
January 2011 and concluded that her condition concerned
a “
co-morbid
mood disorder (not PTSD)
”.
In a letter dated 9 February 2011, Dr De Kock recorded that “
from
the history taken it transpires that the patient had pre-morbid mood
disorder which is currently her main medical problem.
This is not
related to the injury on duty but is severe enough to cause severe
functional limitations. I have referred her to Dr
Herman Jordaan
(psychiatrist) who will be admitting her at the Optima facility for
further assessment
”.
[7]
On 10 March
2011, a further incapacity enquiry was postponed to 14 March 2011 for
the report of psychiatrist Dr Jordaan to be obtained.
Dr Jordaan
reported that the employee’s condition was manageable and
should not lead to permanent disability. He stated that
she should be
granted sick leave for one month after her discharge from hospital,
subject to re-evaluation by himself or a Dr Bester.
[8]
The employee
indicated on 14 March 2011 that she could not work given the
condition of her leg. The enquiry was postponed to 24
March 2011,
being the end of the month recovery period recommended by Dr Jordaan.
The employee was informed that she was expected
to return to work on
that date or provide a sick note if unable to resume her duties. She
did not return to work and the enquiry
was postponed to 28 March 2011
for the employee to provide the appellant with a letter from Dr
Jordaan or any other medical doctor
regarding her situation and to
indicate whether she could work or not, and if not, for how long she
would be unable to work. The
employee did not attend the enquiry on
28 March 2011 and it was again postponed to 31 March 2011. The
employee indicated that she
could not comment on her prospects of
recovery as this was subject to the advice of a medical practitioner
and that she did not
know when she would be able to work again.
[9]
The appellant
informed the employee that if she could not prove that she is
incapacitated or sick she must return to work on 1 April
2011. The
employee agreed to resume work on 1 April 2011 and reported for duty
until 3 April 2011. This is now nine months later.
Three days later,
on 6 April 2011, the employee’s husband informed the appellant
that she could not work due to back pain
that had caused a headache
and that her eyes were blood red. A further medical certificate from
Dr Jordaan was provided to the
appellant booking the employee off
until 25 April 2011. The appellant informed the employee that her
medical situation had placed
it in a difficult position and that she
was to submit a medical report which was to contain the nature of the
illness, the prospect
of recovery, and if and when she recovered
whether she would be able to resume normal duties. No report was
received and the employee
was informed that the incapacity enquiry
would proceed on 14 April 2011. On that date, the employee’s
husband informed the
appellant that the employee would not attend the
enquiry and accepted
that
the enquiry could continue in her absence.
[10]
On 15 April
2011, the appellant terminated the services of the employee with
immediate effect due to her ill-health. The reason
provided for
termination was that the employee was incapable of performing the
work for which she had been employed.
Arbitration
and review
[11]
At the ensuing
arbitration hearing when asked why the doctor had referred her to a
psychiatric institution, the employee responded
“
I
can’t state on that because at that time I was still like very,
very sick that, the person who, who will know everything
in detail is
my husband
”.
The commissioner found that the appellant had failed to discharge the
onus
to prove that the employee was incapable of performing her duties.
Issue was taken with the appellant’s failure to call Dr
De Kock
to explain how the finding was arrived at that the employee suffered
from a pre-morbid disorder and not one related to
the injury; and the
fact that the employee would recover in time. The commissioner found
that the fact that the employee had reported
for work on 1 April 2011
but had been unable to continue working supported an inference “
that
the Applicant was capable to perform certain task if her employment
circumstances could have been adapted
”
given her medical condition. Since the employee had not often been
off sick prior to the injury, the commissioner found
that it was the
injury that affected the employee’s health “
irrespective
of the nature of the ill-health of the Applicant
”.
The dismissal of the employee was therefore found to have been
substantively unfair. As to procedural fairness of the dismissal,
the
commissioner concluded that the employee was not provided with an
opportunity to participate fully in the process and that
the
dismissal was therefore procedurally unfair. The employee was
retrospectively reinstated into her employment with the appellant,
with the appellant ordered to pay her 10 months’ back pay.
[12]
The appellant
took the matter on review to the Labour Court which found that
no
medical report had declared the employee permanently incapacitated;
and that apart from divorcing the employee’s mental
condition
from her work-related injury, Dr De Kock, and Dr Jordaan never
conclusively pronounced on the extent of the employee’s
incapacity. The fact that Dr Jordaan indicated on 10 March 2011 that
further investigations would be undertaken had the result
that the
employee’s medical condition was still being investigated.
The
commissioner was found to have understood the true nature of the
enquiry and had rendered a decision that was substantively
reasonable. Although the employee was off sick for
10
months, the Court found that the commissioner could not be faulted
for finding that the appellant had failed to enquire into
the extent
to which she was able to perform her work. While she had only been
employed for four months
when
she was injured at work, there was found to be no evidence that the
appellant had explored all other possible alternatives
short of
dismissal. Furthermore, since the employee had been on unpaid sick
leave from 10 December 2010 there was found to have
been no financial
hardship on the appellant and the
prolonged
absence from work was not shown to have been unreasonably arduous
when consideration should have been given to adapting
the employee’s
work to allow her to perform her duties. The review application was
accordingly dismissed with costs.
Submissions
on appeal
[13]
On appeal, it
was argued that the Labour Court had erred in finding that the
arbitration award was not reviewable when the employee’s
absence from work was clearly unreasonably long and when a medical
report detailing the reason for her absence, her prognosis and
when
she would return to work was not provided. Since the employee was not
willing and able to work and her absence had been unreasonably
long,
alternatives to dismissal did not exist. The Labour Court, however,
erroneously found that the employee had not been shown
to have been
incapacitated and required the appellant to establish when she was
able to return to work. This, it was submitted,
placed an undue
burden on the appellant.
[14]
It
was submitted for the employee that the appellant did not conduct a
proper investigation prior to her dismissal, nor did it give
the
employee an opportunity to state her case, when it was not disputed
that her injury was work-related. Furthermore, her medical
aid was
exhausted and she had only sought assistance from the appellant as to
recommendations for “suitable facilities”
which was not
forthcoming. Although she provided a medical reports booking her off
work, she was instructed to return to work and
the enquiry finally
proceeded in her absence. In such circumstances, the employee’s
dismissal was procedurally and substantively
unfair and the
commissioner cannot be faulted for finding as much. The decision of
the Labour Court was correct and the appeal
falls to be dismissed
with costs.
Evaluation
[15]
It
has been recognised by our courts that “
an
employer is not expected to tolerate an employee’s prolonged
absence from work for incapacity due to ill health. And it
may, if it
be fair in the circumstances, exercise an election to end the
employment relationship
”.
[1]
Item 10(1) of Schedule 8 to the Labour Relations Act 66 of 1995 (the
LRA) provides that if an employee is absent for an unreasonably
long
period, the employer should investigate all possible alternatives
short of dismissal.
[16]
The employee
was absent from work for a period of nine months during which time
she provided different medical certificates indicating
distinct
reasons for her absence. On 30 June 2010, she was diagnosed with
chronic headaches or migraine and cervical muscle spasm
by Dr
Relling. On 7 July 2010, Dr Hugo reported that she had experienced
concussion. On 7 July 2010, Dr Mofolo reported vomiting
with severe
headache and lower back pain, noting that the employee reported a
lack of sensation in her left lower limb and that
she was a known
migraine patient. Having previously treated her for pain, on 3
December 2010, Dr Hugo recorded that the employee
had injured her
neck and back and that she would recover with time. On 26 January
2011, Dr De Kock recorded that the employee suffered
from a co-morbid
mood disorder, being her main medical problem, which was not related
to her injury on duty but was severe enough
to cause severe
functional limitations. Dr Jordaan followed up on this report,
without stating what condition he was reporting
on, to indicate that
the employee’s condition was manageable and should not lead to
permanent disability.
[17]
The appellant
proceeded by way of an incapacity enquiry to determine whether the
employee’s absence from work had been unreasonably
long or not.
Implicit in such a determination was a consideration of the reasons
advanced by the employee for her absence and the
extent of such
absence. Since very distinct reasons had been provided by different
doctors for the employee’s absence, the
appellant requested the
employee to provide it with a medical report indicating the reason
for her extended absence, the prognosis
for her recovery and if she
was to recover, the period within such recovery could be anticipated.
Yet, in spite of offers of assistance
made by the appellant to the
employee, no such medical report was provided by her.
[18]
Although Mr
Khang suggested in argument that the employee’s condition was
all related to the injury on duty, there was no
evidence placed
before the commissioner to support such a contention. The fact
remained that in failing to provide a report as
to the reasons for
her absence and an assessment as to when her recovery could be
expected, the employee frustrated a proper consideration
as to the
basis for her extended absence.
[19]
The
appellant
was
not
required
to hold the employee’s position open for her indefinitely when
she had failed to provide any clear basis as to the
reasons for and
anticipated extent of her continued absence. The employee herself
asserted that she could not return to work and
could after nine
months give no indication when she would be able to do so. The
ensuing incapacity enquiry, which proceeded by
agreement, found that
she
been
absent for an unreasonably long period and that she
could not perform the
work for which she had been employed.
[20]
It
is self-evident that whether an employee is willing and able to work
and when she may be in a position to do so are material
considerations to which regard must be had when considering an
employee’s incapacity, whether she has been absent from work
for an unreasonably long period of time and whether alternatives to
dismissal exist.
The
employee’s extended absence from work was not explained by way
of a properly detailed medical report. The different medical
certificates provided to the appellant did not explain why her
extended absence from work had been necessary or why her continued
absence was justified. On her own version, the employee was unable to
return to work and was unable to indicate when she may be
able to do
so. There was no dispute that the employee’s position had
already
been kept open for her for more than nine months
.
Given these facts, the appellant’s failure to consider
alternatives short of dismissal
was
not unfair. A proper assessment was made by the appellant having
regard to the facts of this matter as to whether the situation
warranted dismissal and dismissal was shown by the appellant to have
been fair.
[2]
[21]
In
finding that the appellant had failed to explore alternatives to
accommodate the employee, the commissioner failed to have regard
to
the conspectus of the material before him with due regard to items 10
and 11 of Schedule 8. The clear evidence was that the
employee was
incapable of returning to work and the employee accepted as much. By
finding that the appellant had failed to consider
alternatives to
dismissal, the commissioner disregarded the evidence regarding the
reasons for and the extent of the employee’s
absence from work,
as well as the lack of any medical evidence to indicate why such an
extended absence had been justified and
when she could return. By so
doing the commissioner adopted an erroneous approach to the matter,
while ignoring the undisputed
evidence before him. This constituted a
reviewable irregularity insofar as the decision arrived at was one
which a reasonable decision-maker
could not reach on the material
before him.
[3]
The Labour Court
erred in finding that the arbitration award was not reviewable and
for these reasons, the appeal must succeed.
[22]
Having regard
to considerations of law and fairness there is no reason as to why
the employee should be burdened with the costs
of the matter, more so
when in relation to the costs of the appeal she had been successful
at arbitration and before the Labour
Court.
Order
[23]
In the result,
the following order is made:
1.
The
appeal succeeds.
2.
The
order of the Labour Court is set aside and replaced as follows:
’
1.
The
review application is upheld
.
2.
The
award of the first respondent is reviewed, set aside and substituted
as follows:
‘
The
dismissal of the third respondent, Ms K D Mosime-Maseti, is found to
have been procedurally and substantively fair.’
’
Savage
AJA
Waglay
JP and Coppin JA agree.
APPEARANCES
FOR
APPELLANT:
Mr S Snyman of Snyman Attorneys
FOR
RESPONDENTS: Mr Khang of
Mphafi Khang Inc.
[1]
Kievits
Kroon Country Estate (Pty) Ltd v Mmoledi and Others
(2014) 35 ILJ 406 (SCA) at para 31.
[2]
NUM
v Libanon Gold Mining Co Ltd
(1994) 15
ILJ
585
(LAC).
[3]
Section
145(2) of the Labour Relations Act 66 of 1995 (the LRA);
Herholdt
v Nedbank
2013
(6) SA 224
(SCA);
[2013] 11 BLLR 1074
(SCA); (2013) 34 ILJ 2795
(SCA) at para 25;
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2015]
1 BLLR 50
(LAC)
at para 33;
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[
2007]
ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28
ILJ 2405 (CC)
at
paras 78 and 79.