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[2008] ZALCD 19
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Samuels v Commission for Conciliation Mediation And Arbitration and Others (D781/06) [2008] ZALCD 19 (10 July 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO: D 781/06
In
the matter between
DAVID
JONATHAN
SAMUELS
APPLICANT
And
COMMSSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
FIRST RESPONDENT
BESS
PILLEMER
SECOND
RESPONDENT
RUSSELLS
FURNISHERS
(A
DIVISION OF JDG TRADING (PTY)
LTD)
THIRD RESPONDENT
JUDGMENT
10
JULY 2008
CELE
AJ
The case before me
is an application for the review, setting aside and substitution of
an application dated 18 October 2006 which
the second respondent
issued as a Commissioner of the first respondent.
The
reliance has to be placed on
section 145
of the
Labour Relations Act
66 of 1995
, hereafter referred to as the Act for the application.
The
third respondent opposed the application in its capacity as the
erstwhile employer of the applicant.
The
applicant commenced his employment with the third respondent, who I
will refer to as the employer or Russells or the company
on 15
October 1996. He was then deployed at the Chatsworth store of
the company in the position of a business manager.
On
1 July 2005 he attended a work related course in Johannesburg, but
whilst he was on the course, he was served through a telefax
with a
letter or with the suspension papers. The suspension emanated
from a grievance filed against him by about eleven or
twelve staff
members of his branch in Chatsworth. Before he was suspended,
he had not been invited to comment on such a grievance.
What
then followed was that he consulted with a doctor who referred him to
another and he was then put on sick leave because of
the stress
related condition that he was going through which, according to him,
emanated from the events that unfolded.
Even
at that early stage he began to challenge his suspension because he
felt that the company or the employer had not followed
its own policy
or procedure in suspending him.
On
2 October there was an incapacity hearing. He was given a
notice of incapacity consultation and thereafter the second hearing
is the one that was held on 13 December, that is, the second
incapacity consultation took place on 13 December 2005. It was
as a result of that hearing that he was then dismissed. He was
aggrieved by the dismissal and he referred an unfair dismissal
dispute for conciliation and thereafter for arbitration.
The
second respondent was appointed as the Arbitrator in this matter, she
having looked at the evidence that was led by the parties,
issued an
award which I will refer to, but the award was in favour of the third
respondent.
She
referred to case law which guided her and she said the following,
which I want to quickly refer to.
"Applying
these tests to the current facts what is clear is that the
Applicant's incapacity was of a recurrent nature.
The
recurrence was frequent to the extent that it continued over a period
of some six months. The effect was serious on the
operations of
the Chatsworth branch of the Respondent. The Applicant occupied
a senior position. The Applicant was
off for some 159 days
in the context where, whatever the rights and wrongs of the grievance
may have been, there was clearly
a serious problem between him and a
significant body of the staff at the store that had to be dealt with
and resolved.
In my view, frequent and
erratic periods of absence from work can be in themselves sufficient
for an employer like the Respondent
to terminate the employment of
the employee suffering ill health. It clearly does not do this
easily. The time and
effort spent in trying to set up a hearing
demonstrates that it was attempting to deal with the matter properly
and fully.
Its attempts were frustrated both because of the
Applicant's ill health and also by his decision not to participate
until his own
grievance had been resolved first. Working
together with the combination of his ill health and attitude to his
employer can
in my assessment justifiably lead to a finding that the
employment relationship is just not working and that this is due to
the
Applicant's lack of capacity to do what is required of him by his
employer. It is in this context I have to assess whether
the
decision to dismiss was reasonable. It does not have to be the
decision I would have made in this situation or even the
only
reasonable decision. It merely has to be a reasonable response to the
situation. If I cannot say that the Respondent's
decision is
unreasonable then, in accordance with the law set out in the recent
Supreme Court of Appeal judgment in
Rustenburg Platinum Mines
Limited v CCMA
2006 (SCA) 115 RSA I cannot interfere with the
employer's decision. For the reasons set out above I am not
satisfied that
the decision by the employer to terminate the
employment contract was not reasonable and the result cannot
therefore be interfered
with and I uphold that decision".
I
am aware that the Commissioner added further things in the award.
What is clear is that from this judgment, whilst Mr
Bleazard
has suggested that she really did not defer to the decision of the
employer, in my view indeed she did. She used this decision
which was, of course, at that time the law which was applicable.
It has subsequently been set aside. In my view this
is no
longer a test that should be used.
I
am aware that there has been a different test that has been set which
used to suffuse the provisions of
section 145
emanating from the
decision in
Carephone (Pty) Ltd v Marcus
NO and Another (1998) 19 ILJ 1425 (LAC).
With
the change from
Carephone
to the
Sidumo
decision, which is now being followed, there might be cases that come
and parties prepare their papers under the
Carephone
decision, but in a review application, the applicable decision or
applicable test if now the
Sidumo
decision, notwithstanding the fact at the time of the preparation of
the papers or at the time of the award, the
Carephone
decision or test would have been followed.
Today
I have to ask myself whether the decision reached by the Commissioner
is the one that a reasonable decision-maker could not
have reached.
If I say yes, it is the one that a reasonable decision-maker could
not have reached, I should review the award.
If I say it falls
within the range of reasonableness, it is one of those decisions that
could have been reached by a reasonable
decision-maker, I should then
sustain it.
What
worries me in this matter which favours me granting the application
for review is firstly the Notice of Incapacity Consultation
found on
C.16 in the bundle of papers, it relates to the issues that would be
dealt with at such incapacity as extended absence
on leave and
incapacity to perform according to a required standard or standards
due to ill health or injury. That is the
notice that was given
to the applicant. If he had attended that hearing, he should
have been prepared for only that, but
the outcome of that hearing, as
I see it on C.19 reads –
“
This
consultation consisted of 2 categories of concern:-
1.
Your inability to relate to your employer
and to your fellow colleagues thereby rendering you incompatible for
a position as an
employee of Russells.
2.
Your absence from your place of work over
an extended period of time, rendering you unable to fulfil your
contractual obligations
for which you were appointed".
The
first one would have related to an inquiry which the company intended
to hold against the applicant, it should not have, in
my view,
featured in this hearing. It is difficult to test how far the mind of
the Commissioner was contaminated by this matter
which, in my view,
should not have featured.
If
you look at the award itself, she continues to add and she looks at a
combination of the two issues. As Mr
Bleazard
has suggested, perhaps if one were to look at severing the evidence
to say that she could have been able to find dismissal to be
appropriate without adding this aspect. In my view, I cannot so
agree.
It
must be remembered that a gross irregularity can easily be committed
by a latent state of the mind. I cannot with a clear
mind say
that the decision she reached was not contaminated by this material
which, in my view, ought not to have really featured.
That is
the first aspect.
The
second aspect, of course, relates to the test that she used.
Here she was called upon to apply her own mind. She
was
entitled to use her own reasoning to decide on the fairness or
otherwise of the dismissal. In my view she deferred to
the
decision of the employer.
Thirdly,
I bear in mind that on the second incapacity hearing it was only the
chairperson and the secretary present. It begins
to make me
wonder what material was collected on that day. There is no
evidence that appears clearly to have been tendered
pertaining to the
issues as would have been the case with the hearing in October.
There is a lack of such evidence and I
entertain doubt that there was
enough material for him to have come to the conclusion that the
dismissal was appropriate on 13
December.
Of
course I want to point out that unlike the approach adopted by the
applicant, an employer may dismiss an employee after an incapacity
hearing, notwithstanding the fact that the policies do not provide
for that. The considerations are not limited to the policy.
The policy is part of all other considerations that come to play,
such as the law of the country. It would be the
Labour
Relations Act, it
would be the Schedule, it would be all other
considerations, the cases that are handed down by Judges. So whilst
there may be no
provision as to how a company should deal with an
employee after an incapacity hearing, the limit should not be seen to
be based
only on the policy, as has been the case here.
You
will see the number of cases that have been referred to, even by the
applicant, support the holding of an incapacity hearing
followed by a
dismissal, depending on the circumstances.
When
one looks at the circumstances, it is where then this short term
incapacity, the medium term, the long term, come into play,
they are
part and parcel of the considerations that come to mind.
In
my view, therefore, at the end of the day, the application for the
review of the arbitration award dated 18 October 2006 in this
matter,
succeeds.
However,
as was intimated by the applicant in the second notice, I cannot
agree with that. I think, in my view, there has
not been a fair
trial of some of the issues that are critical in this matter. I
cannot be a proper person to finalise that.
In my view this
matter deserves to be reheard, therefore the order I will make will
address that issue.
I
have said firstly the award is reviewed and is set aside. Then
secondly, the matter is now remitted to the first respondent
for a
de novo
arbitration hearing before a Commissioner other than the second
respondent.
The
contribution made by Mr
Bleazard
or by the third respondent is not negligible, it has been very
helpful in this matter. I cannot say that they need to be
punished for coming here to defend that action, so there will be no
costs order.
_____________
Cele
AJ
Date:
27 August 2008
APPEARANCES
For
the Applicant:
In person
For
the Respondent:
Mr B Bleazard-Brian Bleazard Attorneys
IN
THE LABOUR COURT OF SOUTH AFRICA
DURBAN
AND COAST LOCAL DIVISION
DURBAN
CASE
NO
D781/06
DATE
10/7/08
In
the matter between
D
J
SAMUELS
APPLICANT
and
CCMA
AND
OTHERS
RESPONDENTS
BEFORE
THE HONOURABLE MR JUSTICE CELE
ON
BEHALF OF APPLICANT
:
MR D J SAMUELS
ON
BEHALF OF THIRD RESPONDENT
MR B BLAEZARD[?]
EXTRACT
Judgment Only