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[2014] ZALCCT 17
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Namakwa Sands, a division of Tronox Mineral Sands (Pty) Ltd v CCMA and Others (C181/13) [2014] ZALCCT 17 (16 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: C 181/13
In
the matter between:
NAMAKWA SANDS, A
DIVISION OF
TRONOX MINERAL
SANDS (PTY) LTD
Applicant
and
CCMA
First Respondent
MADELEINE LOYSON
N.O.
Second Respondent
S A CLEOPHAS
Third Respondent
Heard
:
25 March 2014
Delivered
:
16 April 2014
Summary:
Review – dismissal for incapacity – order for
reinstatement into different position – no such
position
available – award unreasonable.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The third respondent, Mr S E Cleophas (“the
employee”), was dismissed for incapacity after a non- work
related injury.
The second respondent, commissioner Madeleine Loyson
(“the commissioner”), found that the dismissal was unfair
“only
in so far as the [company’s] failure to accommodate
him in an alternative position is concerned”. She ordered the
applicant
(the company, Namakwa Sands), to re-employ the employee.
She further ordered that:
“
The
[employee] must be placed into any available clerical/administrative
or other position of a sedentary nature which is in line
with the
recommendations contained in the report of Themaat Occupational
Therapy, submitted to the [company] on 31 May 2012.”
[2]
The company wishes to have that award
reviewed and set aside. It argues that the dismissal was fair.
Background facts
[3]
The employee worked as a laboratory
operator. In July 2011 he injured his knee while playing touch rugby
with his son at home. He
stayed at home for a period of ten months as
a result of the injury. The company instructed an independent
company, Themaat Occupational
Therapy, to assess his injury and his
suitability to return to work. It reached the following conclusions
in its report of 31 May
2012:
3.1
The employee did not meet the physical
requirements of his job as a result of the injury;
3.2
The use of assistive devices did not appear
to be a feasible option to accommodate his position in the
laboratory;
3.3
He did not have formal training or
alternative skills in any other field of work;
3.4
He should be deployed into a position where
he can take more frequent resting breaks, e.g. administrative work;
but that would require
further training and skills development.
[4]
The company had several follow-up meetings
with the employee, his trade union representative and the company
nurse. Neither the
employee nor his union made any proposals with
regard to his possible redeployment elsewhere in the company.
[5]
The employee has a grade 10 education. He
previously worked as a general worker. He has no administrative
skills or qualifications.
The company had a number of administrative
vacancies available but they all required matric or tertiary
qualifications.
[6]
After exhausting the consultation process
the company concluded that it was unable to adapt the employee’s
position in order
to accommodate his injury and it could not offer
him other suitable employment. It dismissed him for incapacity on 31
July 2012.
He referred an unfair dismissal dispute to the CCMA. He
requested reinstatement into his previous position. Conciliation was
unsuccessful.
The
arbitration award
[7]
The commissioner made the following
findings:
7.1
The company had “technically”
done all that could be expected of it to accommodate the employee and
to investigate the
availability of suitable alternatives. The injury
was not work related and therefore the obligation to accommodate him
was not
as onerous as it would be if it had been work related.
7.2
“
Nevertheless, administrative
positions were available and were indeed considered in the
consultation process.” A limiting
factor was the agreed fact
that he did not have matric or any administrative experience as
required for those positions.
7.3
“
I find that the [company], a large
business in the mining industry, has a duty to accommodate him,
especially given his long service
and age (45) and to enable him to
continue to work. Despite the fact that several administrative
positions were available at the
time required a matriculation
certificate, it is reasonable to expect that the [company] would at
least have tried to accommodate
the [employee] in one of those
positions. He does have a grade 10 and knows the business... It is
not reasonable to assume that
merely because he only has grade 10,
which was presumably achieved many decades earlier, he would be
incapable of performing the
tasks associated with those positions.”
7.4
The commissioner concluded that the
dismissal was unfair “only in so far as the [company’s]
failure to accommodate him
in an alternative position is concerned”;
and ordered the company to re-employ him in an administrative
position.
Review
grounds
[8]
The company argues that the commissioner’s
award is not one that another arbitrator could reasonably have made
because:
8.1
Despite advising the company’s
representative at the arbitration not to lead evidence on the
vacancies it considered in order
to avoid the employee’s
dismissal, the commissioner made conclusions with regard to the
vacancies that was not supported
by the evidence;
8.2
She made assumptions that were not
supported by the evidence, and had those assumptions not been made,
the conclusion would have
been different;
8.3
She made contradictory findings that did
not support her order; and
8.4
She made an order that was not practicable
and capable of implementation.
Evaluation
/ Analysis
[9]
I shall consider the review grounds
together.
[10]
The company submitted documentary evidence
on 14 possible vacancies. It wished to lead evidence about the
employee’s suitability
or otherwise of these positions. The
commissioner told the company representative that it was not
necessary. She said:
“
Ja,
u hoef nie deur elke pos te gaan nie, ek sien u het hulle almal nou
ter tafel gelê, tensy u spesifiek aanmerking wil maak
oor
enige van hulle, spesifieke aanmerkings, maar ek dink nie ons moet
deur elkeen lees en sê
wat die
vereistes is nie, anders gaan dit te veel tyd neem.”
[11]
The company argues that the commissioner
prevented it from leading relevant evidence and thus deprived it of a
fair trial. Ordinarily,
I would not agree. An arbitration must be
conducted with the minimum of legal formalities. It was common cause
that all of these
advertised positions required a matric and that the
employee had only passed grade 10. But what makes the commissioner’s
award unreasonable in the light of her ruling that the company need
not lead evidence on each of the available positions, is this
conclusion:
“
Despite
the fact that the several administrative positions available at the
time required a matriculation certificate, it is reasonable
to expect
that the [company] would at least have tried to accommodate the
[employee] in one of those positions. He does have a
grade 10 and
knows the business... It is not reasonable to assume that merely
because he only has grade 10, which was presumably
achieved many
decades earlier, he would be incapable of performing the tasks
associated with those positions.”
[12]
The company was not given the opportunity
to lead evidence as to whether it would have been possible to train
the employee and to
consider him for any of these positions despite
him not meeting the minimum requirements. Despite this, the
commissioner found
that it could and should have offered him training
and a clerical position. That conclusion was unreasonable, given the
fact that
the company did not have the opportunity to lead any
evidence as to whether that would have been a feasible option, and
given the
common cause evidence that the employee was not qualified
for the vacant positions.
[13]
Despite the common cause evidence that the
injury was not work-related; that the company did try to accommodate
the employee; that
he could not be accommodated in his previous post;
and that he was not qualified for any of the vacant positions, the
commissioner
ordered the company to create a position and to employ
the employee into such a position.
[14]
In
Director-General:
Office of the Premier of the Western Cape and another v SAMA obo
Broens and others
[1]
the Labour Appeal Court upheld the finding of this Court
[2]
that the dismissal of the employee was unfair; however, it held that
the Court could not order the Department of Health to reinstate
the
employee into a different post.
[15]
The same holds true for the commissioner’s
award. On the evidence before her, there was no position available
for the employee.
By in effect ordering the company to create such a
position for him, she exceeded her powers and reached a conclusion
that a reasonable
arbitrator could not
reach.
Conclusion
[16]
The commissioner could not reach the
conclusion and order the relief that she did on the evidence before
her. In doing so, she made
an award that a reasonable arbitrator
could not. The award must be reviewed and set aside.
[17]
This is not a case where the Court can
substitute its decision for that of the arbitrator. The company must
be placed in a position
to consider the evidence on the availability
of alternative positions and the suitability of the employee for
those positions.
It must be remitted.
[18]
That means that the dispute is not
resolved. In law and fairness, I do not believe a costs order at this
stage to be appropriate.
Order
The
arbitration award of the second respondent dated 2 February 2013 is
reviewed and set aside. The dispute is remitted to the CCMA
(the
first respondent) for a fresh arbitration before a commissioner other
than the second respondent.
_______________________
Anton Steenkamp
Judge of the Labour
Court of South Africa
APPEARANCES
APPLICANT:
Siobhan
Leyden (née Viljoen) of Shepstone & Wylie.
THIRD
RESPONDENT:
Kurt
Allen
Instructed
by Manson Tobin attorneys.
[1]
Labour Appeal Court (CA 5/2011), 26 April 2012, unreported (
coram
Davis JA, Molemela AJA and Murphy AJA).
[2]
(2011)
32
ILJ
1077
(LC).