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[2012] ZALCD 6
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Naidoo v National Bargaining Council for the Chemical Industry and Others (D 866/10) [2012] ZALCD 6; [2012] 9 BLLR 915 (LC) (30 May 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
case no: D 866/10
In the matter between:
NANDHAGOPAL NAIDOO
…....................................................................................
Applicant
and
NATIONAL BARGAINING COUNCIL FOR
THE CHEMICAL INDUSTRY
…....................................................................
First
Respondent
Mr. A C ZWANE
…...................................................................................
Second
Respondent
SHELL AND BP REFINERS
…....................................................................
Third
Respondent
Heard
:
29 May 2011
Delivered
:
30 May 2011
Summary: Review of arbitration award: Applicant
failing to aver
factual and legal grounds
upon
which application based. No reference to or analysis of award in
founding affidavit and no rule 7A(8) affidavit filed. Application
refused
JUDGMENT
GUSH J
The applicant in this matter, who was dismissed by the third
respondent on 30 November 2008 for reasons of incapacity, referred
a
dispute regarding his dismissal to the first respondent who in turn
appointed the second respondent to arbitrate the dispute.
In this
application, the applicant applies to have the second respondent’s
arbitration award, issued on 8 December 2010
under case number
KZNCHEM179 – 08/09, reviewed and set aside.
At the conclusion of the arbitration which commenced on 16 July 2009
and was finalised on 4 August 2010, the second respondent
in his
award concluded that:
the applicant was incapacitated;
the respondent took adequate steps to ameliorate the position of
the applicant;
the applicant was properly consulted regarding the alternative to
dismissal;
And accordingly that
the applicant’s dismissal was both substantively and
procedurally fair;
And dismissed the applicant’s application.
The brief background to the matter is as follows:
the applicant was employed by the third respondent in December 1981
in its electrical maintenance department until November
1996 and
thereafter in the third respondent’s stores as a receiving
clerk (until November 2000), storeman (until February
2002) and as
warehouse administrator until his temporary medical boarding in
January 2007 and dismissal on 30 November 2008
.
During the mid-1980s, the applicant developed chest problems
variously described during the evidence as sinusitis/allergic
bronchitis, a persistent cough, tightness of the chest and throat
irritation a post nasal drip, which deteriorated and was
eventually
diagnosed as asthma.
c During his employment, the applicant had received medical treatment
and had been assessed and treated by a number of medical
practitioners appointed by the third respondent including doctors
Hariparsad, (specialist physician), Van Selm (occupational health
consultant) Lalloo (head of the respiratory unit of the University of
Kwazulu-Natal medical school), Abdool-Gaffar (specialist
physician/pulmonologist) Henderson (cardio-thoracic surgeon). The
applicant’s deteriorating condition eventually led to the
applicant being medically boarded. The application by the applicant
was for permanent medical boarding and included a declaration
in
support of his application in which he stated that he was last able
to perform his duties in June 2005 and that he was unable
to work on
the site, declared that there were no other occupations on-site that
he considered himself capable of performing by
reason of his lack of
training education and competence.
d The medical boarding commenced in January 2007 and was reviewed by
the insurers in November 2007 at which time they advised the
applicant that they no longer considered him totally disabled and
that he was to return to work.
e Whilst it appears as if the applicant’s condition had
improved during his boarding, the medical examinations of the
applicant
requested by the third
respondent once notice was given by the insurers that they considered
the applicant fit to return to work,
was to the effect that third
respondent site and its location presented a risk to the applicant
should he return to work even if
he was placed in the third
respondent's office block.
f FAs a result, the third respondent convened an internal incapacity
enquiry. The outcome of the disability enquiry was recorded
in a
letter addressed to the applicant dated 24 November 2008. The letter
reads:
‘“
from
the documentation presented, you are clearly not in a position to
perform work on any of [third respondent’s sites] due
to the
risk posed to your health by exposure to the irritants present here.
The doctors involved in your case indicate that while
you are capable
of carrying out work the same time previously performed ...,,even an
office job at the refinery will pose a risk
your health. ...your
services are to be terminated on the basis of incapacity”
g The applicant appealed unsuccessfully against his dismissal and
referred a dispute to the first respondent.
The arbitration commenced on 16
th
July 2009 and proceeded
on 17
th
July 2009, 18
th
and 19
th
August 2000, 9
th
and 10
th
May 2010, and 2
nd
and 4
th
August 2010. At the commencement of the
arbitration, the parties handed in a pre-arbitration minute which
recorded the issues
in dispute as follows:
Whether the applicant was incapacitated?;
Whether adequate steps were taken by the respondent to ameliorate
the position and or improve the working environment?;
Whether the applicant had been properly consulted by the respondent
about alternatives that would or could be taken to ameliorate
the
position will improve the working environment?
In addition to the oral evidence, the second respondent was handed a
number of documents including correspondence between the
medical
practitioners, medical reports and the applicant’s application
for a disability benefit all of which the second
respondent clearly
took into account in his award.
The second respondent in a comprehensive and very detailed award
surveys the evidence
and the arguments
before thoroughly analysing the evidence and arguments and
concluding that the dismissal of the applicant was
fair.
I do not intend to summarise the extensive evidence placed before
the second respondent. The second respondent has clearly and
lucidly
done this.
In his award, the second respondent, respondent, bearing in mind his
carefully considered analysis of the evidence and the arguments,
variously comments and concludes that:
'‘The
applicant's case
is not a normal case of an employee who was incapacitated and could
carry on working. His incapacity occurred
over a long progressive
period of time. He was medically boarded and was out of sight for a
period of about two years. The
Sanlam medical doctors were of the
opinion that the applicant was not unfit for administrative work in
other more favourable
circumstances Dr Abdul-Gaffar indicated that
the applicant would be able to work as long as there is no exposure
to respiratory
irritants or sensitizers. The evidence of Ms Francis
is to the effect that in the [third respondent’s site] there
are
respiratory irritants or sensitizers’;
‘
It
is incorrect argue that the applicant was certified fit to return
to work. The applicant was not unfit for administrative
work in
other more favourable circumstances. This meant that he could work
in an environment where there was no exposure to
respiratory
irritants or sensitizers. The respondent environment is not
favourable to the applicant’.
‘
The
submission that the respondent failed to conduct a full and proper
investigation into the applicant’s suitability
for the office
based position and that the respondent simply relied on certain
environmental reports and the conclusion of
Dr Jagot cannot be
sustained on the basis of the evidence on this matter. The
conclusions of Dr Jagot are supported by Dr Abdul-Gaffar.”’
before making his award.
In his founding affidavit the applicant sets out his grounds for
review as follows:
‘
The
second respondent arbitration award is subject to being reviewed
and set aside in that he committed misconduct and/or a
gross
irregularity and/or exceeded his powers in terms of section 145 of
the Labour relations act. The second respondent further
failed to
apply his mind properly to the evidence before him, which renders
his award unreasonable and reviewable’
‘
the
second respondent failed that proper regard to the evidence before
him in that:
the internal medical
practitioner of the third respondent had not conducted in the
clinical test to compile the clinical report
in relation to my
illness;
a proper test on my lungs was
never concluded;
the second respondent
unjustifiably found that my health condition was distinguishable
from other colleagues with as matter
without any medical evidence
put before him: and
There was no evidence that the
third respondent took steps to ameliorate his position in that no
other alternatives were offered
to him nor any position adapted to
accommodate him.’
The applicant makes no reference to the contents of the award and
does not attempt in any way whatsoever
to
analyse the award.
Despite reserving his right to supplement, amend or vary his
founding affidavit, on receipt of the record of the proceedings
and
the filing thereof the applicant elected to file a rule 7A(8)(a)
1
notice in which he indicates that he stands by his notice of motion
and founding affidavit.
The applicant’s approach to his application as evidenced by
his founding affidavit and Rule 7A(8)(a) notice unfortunately
prevails in his replying affidavit. In the replying affidavit the
applicant takes the matter no further. Neither the transcript
of the
evidence nor the extensive bundle of documents are considered or
referred to. Again as in the founding affidavit, conspicuous
by its
absence is any reference whatsoever to the contents of the second
respondent’s detailed and well reasoned award
in support of
his averment that the second respondent’s award is reviewable.
It is trite that an application brought in terms of section 145 of
the Labour Relations Act
2
(LRA) is not an appeal. It is incumbent upon the applicant in his
founding or supplementary affidavit to establish with reference
to
the arbitrator's award and the record (and the material placed
before the arbitrator), the grounds upon which the applicant
relies
in seeking to have the award reviewed and set aside.
The applicant’s first ground of review (para 9a above) is not
a ground of review but simply paraphrases the provisions
of section
145.
The second set of grounds of review (para 9b above) is not supported
by any reference to the award or the record
or
bundle of documents and in any event does not accord with the
evidence contained in the record and as summarised by the second
respondent.
The
onus
to establish that the award of the second respondent
is reviewable rests on the shoulders of the applicant. Rule 7A of
the rules
of this Court require an applicant ‘desiring to
review a decision [of an arbitrator in terms of s145 of the LRA]
must deliver
a notice of motion supported by an affidavit setting
out the factual and legal grounds upon which the applicant relies to
have
the decision or proceedings corrected or set aside’.
3
In so doing, it is incumbent upon the applicant to place such
factual and legal grounds that will enable the court to determine
the matter. In the matter of
Minnaar v Jugdeow
4
the court held:
‘
in
proceedings such as these, [an application] the affidavits take place
not only of the pleadings in the trial but also of the
evidence...
on
affidavit, before the Court as will enable it [to determine the
dispute]’.
5
In the matter of
Morgan Fashions SA (Pty) Ltd v CCMA and Others
,
6
to which the third respondent's counsel referred Marcus AJ said the
following:
‘
The
“grounds” of review advanced by the company are stated in
stark and unsubstantiated terms. Although the company's
standpoint
was that it required the record of proceedings in order to motivate
the review, the company was, at least in possession
of the
arbitration award. The award runs to some 11 pages typed in single
spacing. It is extremely detailed and, on the face of
it, appears to
represent a careful and lucid analysis of all the issues in dispute.
In the review proceedings, however, there is
no attempt whatsoever to
analyse the award or to point to any defect in reasoning, error of
fact or error of law. The award reflects
a consideration by the
Commissioner of the documentary evidence that was placed before her’
7
Not only is the second applicant’s award "lucid", it
contains a detailed exposition of the extensive evidence
and
documentation presented to him during the arbitration followed by an
equally detailed analysis of the evidence and argument.
It is
startling that the applicant, in his founding affidavit, fails to
refer to the award or make any ‘attempt whatsoever
to analyse
the award or to point to any defect in reasoning, error of fact or
error of law’.
The rules
of this court because an applicant when filing a review is unlikely
to be in possession of the transcribed record,
specifically
afforded the applicant an opportunity to file a further affidavit
once it is in possession of the record. The rule
provides an
applicant the opportunity to file “an accompanying affidavit
amend[ing] add[ing] to or vary[ing] the terms
of the notice of
motion and supplement[ing] the supporting affidavit.”
8
The applicant having transcribed the record comprising some 600
pages plus approximately 400 pages of documentary evidence elected
to file a notice in which he states simply that he “stands by
his notice of motion and founding affidavit”.
In the heads of argument filed by the applicant counsel, the
applicant attempts to make out a case justifying the review and
setting aside of the award and makes reference to the record and
award. Heads of argument however do not constitute pleadings
and the
court is left with only the applicants founding and replying
affidavits to determine the review ability or otherwise
of the
second respondent award. In support thereof, Ms Naidoo, who appeared
for the third respondent referred the court to an
unreported
decision of High Court of
Zimbabwe Cargill Zimbabwe Versus
Culvenham Trading (Pvt)
Limited
9
where the court held:
‘
In my
view, a dispute between the parties can only arise ex facie the
pleadings filed with the court ... It is my further view that
the
dispute cannot be brought to the attention of the court in the heads
of argument for counsel cannot plead on behalf of the
parties. It is
trite that heads of argument are counsel’s conclusions and
opinion of the facts and law applicable to the
facts of the matter.
They are not part of the pleadings.’
10
In the circumstances, the court is left with only the applicant’s
founding and replying affidavits to determine the reviewability
or
otherwise of the second respondent’s award. It is abundantly
clear from the applicants founding and replying affidavits
that the
applicant has not established any basis upon which the court could
find that the award of the second respondent was
reviewable. The
applicant has not discharged the onus of establishing that
the second respondent either committed “misconduct a gross
irregularity
or exceeded [his] powers”
11
or came to a decision to which a reasonable decision maker could not
make the only evidence and material placed before him.
12
Mr Anderton who appeared for the applicant specifically argued that
the award was reviewable for “process related reasons”
13
in that the second respondent had failed to take into account the
evidence and material placed before him in reaching his decision.
In
circumstances where an applicant wishes to rely on an averment that
the arbitrator failed to take into account evidence properly
placed
before him in reaching his award it should be even more obvious that
the applicant should at very least refer to that
evidence and those
parts of the award which demonstrate the proposition.
It is not sufficient for an applicant applying to review and set
aside an award of an arbitrator to simply pay lip service to
the
provisions of section 145 of the LRA. Rule 7A quite obviously
requires an applicant to deal fully with
such
factual and legal grounds upon which the applicant relies
with
reference to
the award and evidence.
It is abundantly clear from the second respondent award that he
specifically took into account the long history of the matter
and
numerous medical reports and medical evidence relating to the
applicants illness and the medical practitioners tests and
conclusions regarding his condition as well as such evidence as was
led regarding the steps taken to ‘ameliorate the position
of
the applicant’, and the evidence regarding the relative
condition of his colleagues in reaching his decision.
Likewise there is no doubt from the second respondent’s award
that he, in concluding that the applicant was fairly dismissed,
was
of the opinion, based on the evidence, satisfied that the third
respondent had properly consulted with the applicant prior
to
dismissing him.
As far as costs are concerned, the applicant merely argued that this
application should succeed and that costs should follow
that result.
The third respondent argued that the application should be dismissed
with costs given the circumstances and facts
surrounding the
application. I have no doubt that the bulk of the costs incurred
involved perusing the record in preparation.
It would not be fair to
the third respondent, given the fact that the applicant having filed
over 1000 pages of evidence and
documentation elected not to refer
to such documentation or record in his application to order that
each party pay its own costs.
I am satisfied in the circumstances of
this matter that is equitable that the applicant be ordered to pay
the third respondent’s
costs.
In the circumstances, I make the following order:
The applicant’s application is dismissed with costs
_______________________
D H Gush
Judge
APPEARANCES
FOR THE APPLICANT: Adv S Anderton
Instructed by Henwood Britter and Caney.
FOR THE THIRD RESPONDENT: Adv L Naidoo
Instructed by Edward Nathan Sonnenbergs.
1
Rules
– Labour Court
2
Act
66 of 1995.
3
Rule
7A(1) and (2)(c)
4
1964
(1) SA 770
[D and CLD]
5
Minnaar
v Jugdeow
at 774 A
6
[1999]
10 BLLR 1063
(LC).
7
At
page 1066 para 13.
8
Rule
7A(8)
9
HH
42-2006 HC 5964/05.
10
Page
3.
11
Section
145(2) LRA
12
The
test in
Sidumo and Another v Rustenburg Platinum Mines Ltd and
Others
2008 (2) SA 24
(CC)
13
See
S A Airways v Blackburn and Others 3 BLLR (2010)