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[2008] ZALCCT 9
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Federal Gaming (Cape) (Pty) Ltd v Brown and Another (C309/2007) [2008] ZALCCT 9 (15 July 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD IN CAPE TOWN)
CASE
NO
: C309/2007
DATE
:
15 JULY 2008
In
the matter between:
FEDERAL
GAMING (CAPE) (PTY)
LTD
Applicant
and
ADVOCATE
JOHN M BROWN N.O.
1
St
Respondent
CCMA
2
nd
Respondent
DUSWO
obo LIRA LENKOE
3
RD
Respondent
JUDGMENT
PILLEMER,
AJ
The
applicant is the operator with a casino in Cape Town. It
dismissed a member of the 3
rd
Respondent, a trade union, which on behalf of its member challenged
the fairness of that dismissal before the CCMA.
The
Arbitrator who issued the award in favour of the member in the
arbitration that followed is the First Respondent in this review
in
which the applicant seeks to review and set aside the arbitration
award.
The employee in question
is Lira Lenkoe, a man who is not in good health. He took a
considerable amount of sick leave.
He had a problem with his
leg in respect of which he sought accommodation at work but this was
unfortunately not possible and eventually,
it seems, following an
audit of some kind of his sick leave he was charged with misconduct.
Precisely what the charge was
that he faced was not clear but it was
expressed in the charge sheet that was served upon him in the
following terms:
“
Misconduct
relating to incapacity/ill-health which is a result of 40 days sick
from work in a period of 32 months between 1 April
2004 and 30
November 2006.”
The way in which this was
explained at the arbitration was also confusing and Ms Bester, who
presented the case for the applicant
and also testified, explained
the misconduct. Initially she said that what had happened is
that the employee had been dismissed
in terms of misconduct and
referred to the finding of the disciplinary hearing which said:
“
In
terms of misconduct you are found guilty for the following misconduct
relating to incapacity.”
In
relation to this she was questioned quite extensively by the
Arbitrator pointing out to her that misconduct and incapacity are
distinct concepts in labour law and you can’t really have
misconduct relating to incapacity. You’re not guilty of
misconduct if you are sick and sickness might lead to incapacity but
it certainly in itself, if it’s genuine, is not misconduct.
He had considerable difficulty in extracting from Ms Bester precisely
what it was that the applicant complained of and, at the
end of the
day, it was only when a Mr Roos, who was chairperson of the
disciplinary enquiry, testified that there was some degree
of
clarification.
Mr Roos, who was a senior
manager was also the person who presided over the disciplinary
hearing. He was the person who imposed
the sanction of dismissal. He
dealt with the difficulty in the record, particularly at page 110
where he was probed by the Arbitrator
to assist him in understanding
the nature of the charge that the employee had faced and on which the
finding of guilt had been
made. In relation to this issue Roos says
the following:
“
You
see, Sir, the matter started initially as ill-health, but then after
some investigation it became clear that Mr Lenkoe booked
off not only
for the leg but for various other sicknesses as well. For
instance, sinusitis, ear infection, hypertension and
his medical
history, according to the doctor, shows nothing about hypertension or
diabetes. I came to the conclusion that
he intentionally booked
off sick and that it is not really related to the leg.”
He was then probed
further on that, elaborated upon it and then eventually at page 127
of the record it really boiled down to Mr
Roos being under the
impression that the employee had to some extent been shamming and had
not really been suffering from the illnesses
reflected in the medical
notes. That really was the
gravamen
of the charge and in
relation to the one element where this was highlighted, namely the
question of hypertension where one doctor
had certified the employee
to be suffering from this condition and a little less than two weeks
later another doctor had indicated
that he was not suffering from the
condition of hypertension, Mr Roos said the following and I quote
again:
“
Like
I said, it’s not something that goes away overnight. It’s
my reasoning, if Mr Lenkoe really suffered from
hypertension then 10
days later a different doctor wouldn’t say, “No sign of
hypertension.”
At page 129 Mr Roos
clarifies it by elaborating in this way and again I quote:
“
It’s
not just one thing, Sir, that led to the dismissal, it’s one of
the instances that made me suspicious that changed
my view that this
is not ill-health but it is misconduct, misuse of his sick leave.”
It
was clear that the applicant was not relying upon incapacity as the
basis for the dismissal and the employee was not being dismissed
because by reason of genuine sickness he was unable to do the work.
He was dismissed because it was considered that he was not
being
frank in relation to some of the sick leave he took and on that basis
what had occurred was an abuse and constituted misconduct.
In passing, I mention
that this approach is to some extent contradicted by the evidence of
Ms Bester who testified at page 66 of
the record and I quote:
“
We
never disputed the fact he was sick. I never said he booked off
and he was not sick. I wanted the doctor to confirm
if there is
a condition that’s permanent because then he could assist with
disability claims which we do for currently two
people. We do
it all the time. He didn’t give that information.”
So,
unfortunately, there was this measure of confusion in the way in
which the applicant understood its case, or misunderstood its
case,
is probably a better way of describing it and the confused manner in
which it ultimately was presented.
The
Arbitrator participated actively in the proceedings. A
complaint is made in the present application that this resulted
in
unfairness and constituted a gross irregularity and had as its result
that the applicant did not have a fair hearing.
The arbitrator
was, I consider, understandably frustrated with the failure to
clearly identify the nature of the complaint which,
it seems, was
based upon the applicant’s own confusion as to precisely what
it was. But, nonetheless, this involved
the Arbitrator in
asking considerable questions of the persons who testified.
Generally he did this, as I read the record,
in order to get clarity
rather than to achieve an answer in a particular direction or
another. He frequently expressed his
frustration. He
referred to aspects quite strongly as nonsense or impossible and he
played a very dominant role in the way
in which the proceedings were
run.
Part
of the complaint against him also related to the fact that he was
fairly loose in the way he allowed cross-examination, certainly
of Ms
Bester. She was cross-examined firstly by the union
representative and then on request by the union representative
that
the employee also be allowed to cross-examine this was allowed. So
she had a double session and, of course, she was also faced
by fairly
continuous questioning from the Arbitrator himself.
It
was submitted to me today as well as in the heads of argument that
were filed that the impact of all of this was that the applicant
was
not given a fair opportunity of presenting its case and this rendered
the arbitration, for that reason, unfair.
Looking
at the record broadly and on a reading of it, I am not satisfied that
this was unfair and resulted in an unfair result.
At the end of
the day the Arbitrator was inquisitorial in his approach, but
nonetheless did achieve the answer that the applicant
wanted to
present, namely that the complaint was that the employee was shamming
and abusing sick leave by taking leave when he
was not genuinely ill.
It is that case which must be the basis upon which he was dismissed
because, if it was anything less than
that, then plainly it’s
unfair to dismiss somebody because he’s genuinely ill and to do
that on the basis that this
constituted misconduct, which, if he’s
genuinely ill, it obviously cannot do.
So
I am not satisfied that the Arbitrator’s involvement rendered
the process unfair or that it constituted an irregularity
of the kind
which in itself would justify a review without regard to the actual
merits of the proceedings.
There
was a further complaint in relation to the conduct of the
Commissioner and that was that he should have advised the applicant
that it needed to call expert testimony to deal with the medical
questions and could not simply rely upon the information that
it had
relied upon in effecting the dismissal. It does not seem to me
that there was any obligation on the Arbitrator to
do that or,
indeed, it’s not clear that it would have been appropriate to
have sought to introduce a new basis for the dismissal
at the
arbitration stage. But, in any event, I need not go into that
in any detail because no medical evidence was in fact
called.
The Arbitrator dealt with
the matter in his award under a heading, “Analysis of the
Evidence and Argument” as follows
and I quote:
“
The
Respondent bears the onus of proving on a balance of probabilities
that the Applicant’s dismissal was substantively fair.
The following issues were common cause:
1.
The applicant suffered from a lower leg
lymphodaema which was exacerbated by long periods of standing and
that his left lower leg
cellulite had been successfully treated.
The symptomatic treatment was relieved by left lower limb elevation
and no surgical
treatment was necessary.
2.
The applicant had exceeded his permissible
sick leave cycle of 30 days for a period commencing April 2004 to
date of dismissal by
12 days.
3.
The applicant was booked off sick for a
total of 90 days for the 67 month period of his employment.”
The
Arbitrator then records that the respondent’s operation manager
failed to monitor the applicant’s sick leave.
This aspect
was challenged in the heads of argument that were delivered, but it
seems to me it does accord in general terms with
the evidence that
was before the Arbitrator. He was allowed to exceed his sick
leave and it was only when the audit was done
that it was seen that
he had taken much more than he ought to have taken over the cycle in
question.
The
award then continues and I quote:
“
Mr
Roos, the chairperson of the applicant’s disciplinary hearing,
testified that he found that the applicant was shamming
illness as he
was booked off sick for hypertension by one doctor whereas Mr Mbavani
states that the applicant was not suffering
from hypertension and he
had no option to dismiss the applicant for abuse of sick leave.
He confirmed the applicant was not
dismissed for incapacity.”
It
seems to me that the Arbitrator fairly reflected Mr Roos’
evidence in this respect although Mr Roos did say it went beyond
the
single instance. It was that instance that became central and
certainly if that instance had been established, namely
that there
was some sort of conspiracy between the applicant and the one doctor
to put up medical certificates that were false
then obviously
dismissal for misconduct would have been appropriate, but the case
never went anywhere near that far although that
was the basis upon
which Mr Roos appears to have founded his thinking in the matter.
The award continues and I quote:
“
I
found the applicant to be a reliable and credible witness and I had
no grounds to doubt the veracity of his sworn testimony.
The
applicant confirmed that his hypertension was under control as he
received medication from local clinic as he could not afford
private
doctors.”
I
pause to mention that this accords with the applicant’s
testimony. He said he saw different medical practitioners
and
that he saw a particular medical practitioner, the one in question in
relation to symptoms that were diagnosed as being caused
by
hypertension and in respect of that he received medication.
The
Arbitrator then concludes as follows:
“
In
the circumstances I have no doubt that Mr Roos, the chairperson of
applicant’s disciplinary hearing, had no grounds to
find the
applicant abused his sick leave. He was not pretending to have
suffered from hypertension.”
The
Arbitrator also pointed out that a medical examination had not been
conducted, as could have been done by a well-resourced employer,
and
made the point that Mr Roos was not a medical doctor and his opinion
on the question of whether hypertension would continue
to manifest 10
days after it has been diagnosed by a doctor could not be relied
upon.
He
effectively found that the onus had not being discharged and, in
those circumstances, that the dismissal was substantively unfair.
He then found that the employment relationship would be able to be
continued on a tolerable basis and it was reasonably practicable
for
the applicant to be reinstated and he granted an order reinstating
him together with back pay.
The applicant had to
satisfy the test set out in the Constitutional Court case of
Sidumo
and another v Rustenberg Platinum Mines Limited and others
[2007]
12 BLLR 1097(CC).
The test, as set out in paragraph [110] of
the majority judgment, and is encapsulated by the question:
“
Is
the decision reached by the Commissioner one that a reasonable
decision-maker could not reach?”
That’s
the question I have to ask myself and I am not satisfied that the
applicant has shown that the decision reached by
the Arbitrator was
one that a reasonable decision-maker could not reach. Indeed,
on the information before the Arbitrator,
I take the view he came to
the correct decision.
In
those circumstances, the review must fail. The order I made,
accordingly, is the
APPLICATION IS
DISMISSED
.
_________________________
PILLEMER,
AJ