About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2014
>>
[2014] ZALCPE 21
|
|
Sutherland Transport v National Bargaining Council for the Road Freight and Logistics Industry and Others (P102/12) [2014] ZALCPE 21 (5 August 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
NOT REPORTABLE
CASE NO: P 102/12
In
the matter between:
SUTHERLAND
TRANSPORT
Applicant
and
THE
NATIONAL BARGAINING COUNCIL FOR
THE
ROAD FREIGHT AND LOGISTICS
INDUSTRY First
Respondent
SIYABONGA
COKILE
N.O
Second
Respondent
DENZIL
VAN DER
BYL Third
Respondent
Heard
: 22 October 2013
Delivered
: 05 August 2014
Summary:
Application to review and set aside arbitration award. Award is
reasonable and not to be interfered with on review. Compensation
to
be calculated on the
employee’s rate of
remuneration on the date of dismissal. Compensation cannot be
calculated on the basis of a salary the employee
would have earned
had he accepted an offer he never accepted.
JUDGMENT
PRINSLOO, AJ
Introduction
[1]
The
Applicant is seeking to review and set aside an arbitration award
issued on 27 January 2012 and to substitute it with an order
that the
Third Respondent’s (‘the Respondent or van der Byl’)
dismissal was fair, alternatively to remit the
matter back to the
First Respondent for a hearing
de
novo.
The
application is brought in terms of the provisions of section 145 of
the Labour Relations Act
[1]
(‘the Act’).
[2]
The issue in dispute is whether the
Respondent’s dismissal was substantively and procedurally fair.
[3]
The Second Respondent (‘the
arbitrator’) found the Respondent’s dismissal
procedurally fair and substantively
unfair and ordered that the
Applicant pays van der Byl compensation in the sum of R 42, 000.00.
Condonation
[4]
At the outset, the Applicant sought
condonation for the late filing of the application for review that
was filed 5 days late.
[5]
In the application for condonation the
Applicant explained the reasons why this application was filed late.
I considered the reasons
for the delay and I am of the view that the
delay is not excessive, the explanation tendered is plausible and I
have also considered
the fact that van der Byl is not opposing the
application for condonation. For these reasons condonation is
granted.
Brief exposition of
the facts
[6]
Mr van der Byl was employed by the
Applicant as a code 14 long distance driver in April 2008. His
duties included driving
heavy duty trucks on long distances. He
earned a salary of about R14 000 per month.
[7]
It was common cause that van der Byl was
involved in a collision whilst on duty in 2008. According
to him, following
this collision he started experiencing ill health
and he suffered from gastro and appendicitis, which resulted in his
appendix
being removed.
[8]
During the period 25 January 2009 and 9
December 2010, van der Byl was absent from work for a total of 43
days on sick leave and
35 days on unpaid leave. He was also booked
off as unfit for work from 9 December 2010 until 12 January 2011.
[9]
On 20 January 2011 van der Byl was called
to a meeting with the Applicant’s erstwhile human resources
manager, Ms Yolandi
Cundy. Ms Cundy referred to this meeting as
an ‘informal discussion’.
[10]
Ms Cundy’s evidence before the
arbitrator was that during this ‘informal discussion’,
she and van der Byl went
through his sick leave and doctors’
sick notes, one in particular from Dr Titus and from Dr Brown. The
sick notes stated
that van der Byl was unfit for work. The medical
doctor recommended that van der Byl be taken off driving heavy duty
trucks.
[11]
It is common causes that van der Byl was
due to undergo a further medical assessment on 6 April 2011.
[12]
Ms Cundy testified that van der Byl wanted
to be medically boarded but that was not an option as his incapacity
was not of a permanent
nature and it was not a situation where he
would never be able to drive again. It was temporary.
[13]
A second meeting was held on 27 January 2011 and during this
meeting van der Byl was offered two alternative positions, one as a
local driver collecting post and performing general administrative
functions, not driving a heavy truck but a normal vehicle and
the
other was assisting in the maintenance division. It is common cause
that van der Byl rejected these alternative positions because
the
remuneration he would have received was around R 2 200.00 per month
and it was too little for him to accept as he was at the
time earning
R 14 000 per month and was the sole breadwinner.
[14]
On the other hand van der Byl proposed that he be offered the
position of ‘instructor’. The Applicant rejected this
proposal as the Applicant was of the view that it was impossible to
offer this position to van der Byl as the duties of an instructor
were more onerous than those of a driver. According to the Applicant,
the instructor has to be physically present with the trainee
driver
on long distances and would have to take over the duties of driving
in the event the trainee driver encounters difficulties
on the road.
Mr van der Byl also suggested that he be boarded or retrenched. The
Applicant also rejected these suggestions
for alternatives.
[15]
According to Ms Cundy the alternative positions offered to van
der Byl would be on a temporary basis pending the results of the
follow up assessment with Dr Brown on 6 April 2011. Mr van der
Byl disputed the fact that he had knowledge of the temporary
nature
of these alternative positions. It is not evident that he was aware
that the Applicant was willing to wait for the results
of his
re-assessment, nor did Ms Cundy testify to that effect.
[16]
Ms Cundy testified that the Applicant followed the prescribed
steps, provided alternative positions to van der Byl and that there
was nothing else left that the Applicant could do but to dismiss
him.
[17]
Mr van der Byl was dismissed on 31 January 2011 for reasons of
incapacity and ill-health.
[18]
Mr van der Byl testified that he consulted Dr Brown on 6 April
2011 and he was found to be fit for work.
The arbitration
award
[19]
It was common cause during the arbitration
that the Applicant terminated van der Byl’s services on 31
January 2011, after
an incapacity enquiry was held, and the reason
for termination was incapacity and ill-health. It was also common
cause that van
der Byl was absent for extended periods during the
period January 2009 and January 2011, so was the fact that he was
injured on
duty in 2008 when he was involved in an accident whilst
driving the Applicant’s truck.
[20]
The central issue to be determined by the
arbitrator was whether the Respondent followed the four-stage enquiry
provided for in
Schedule 8 of the Act.
[21]
In deciding the case before him, the
arbitrator considered the provisions of
Schedule
8 of the Act, the
Code of Good Practice:
Dismissal (‘the Code’). Items
10
and 11 thereof provide for incapacity due to ill health or injury.
Item 10 reads as follows:
‘
10:
Incapacity: Ill-health or injury
(1)
Incapacity on the grounds of ill-health or injury may be temporary or
permanent. If an
employee is temporarily unable to work in these
circumstances, the employer should investigate the extent of the
incapacity or
the injury. If the employee is likely to be absent for
a time that is unreasonably long in the circumstances, the employer
should
investigate all the possible alternatives short of dismissal.
When alternatives are considered, relevant factors might include the
nature of the job, the period of absence, the seriousness of the
illness or injury and the possibility of securing a temporary
replacement for the ill or injured employee. In cases of permanent
incapacity, the employer should ascertain the possibility of
securing
alternative employment, or adapting the duties or work circumstances
of the employee to accommodate the employee’s
disability.
(2)
In the process of the investigation referred to in subsection (1) the
employee should be
allowed the opportunity to state a case in
response and to be assisted by a trade union representative or fellow
employee.
(3)
The degree of incapacity is relevant to the fairness of the
dismissal. The cause of the
incapacity may also be relevant. In the
case of certain kinds of incapacity, for example alcoholism or drug
abuse, counselling
and rehabilitation may be appropriate steps to
consider.
(4)
Particular consideration should be given to employees who are injured
at work or who are
incapacitated by work-related illness. The courts
have indicated that the duty on the employer to accommodate
incapacity of the
employee is more onerous in these circumstances.’
[22]
Item 11 provides guidelines in cases of
dismissal arising from ill-health or injury and embodies the
so-called
four-stage enquiry. Item 11
provides that:
‘
Any
person determining whether a dismissal arising from ill-health is
unfair should consider-
(a) whether or not the
employee is capable of performing the work; and
(b) if the employee is
not capable-
(i) the extent to which
the employee is able to perform the work;
(ii) the extent to which
the employee’s work circumstances might be adapted to
accommodate disability, or where this is not
possible, the extent to
which the employee’s duties might be adapted; and
(iii) the availability of
any suitable alternative work.’
[23]
The
arbitrator also sought guidance in the well-known case of
Standard
Bank of SA v CCMA and Others
[2]
where
the court formulated the four-stage enquiry which employers ought to
embark on when dealing with dismissal based on incapacity
due to
illness
[3]
.
[24]
The
Labour Court in the matter of
IMATU
obo Anton Strydom v Witzenburg Municipality and others
[4]
held as follows;
‘
The onus of
proving the fairness of a dismissal remains always with the employer.
An element of that onus is the employer's duty
to avoid the
dismissal. Accommodating an employee with a disability is the primary
way of avoiding a dismissal for incapacity.
To determine how to
accommodate the employee, the employer needs to know what the
employee is capable of doing. For that, the employer
depends on the
employee and medical advisers. ………….. It
could have obtained medical reports from doctors
of its own choice if
it wanted to challenge the employee's doctors.’
[25]
The
Labour Appeal Court in the matter of
IMATU
obo Anton Strydom v Witzenburg Municipality and others
[5]
held as follows;
‘
I
am of the view that the provisions of item 10 and 11 are inextricably
tied and thus non-compliance therewith would render a dismissal
both
procedurally and substantively unfair..’
In the case of Samancor
Tubatse Ferrochrome v Metal and Engineering Industries Bargaining
Council and Others (footnote omitted),
the court, dealing with a
dismissal based on incapacity albeit not one related to illness,
stated as follows:
‘
Manifestly,
the question as to whether a dismissal in the circumstances of the
present dispute is substantively fair depends upon
the facts of the
case. An employer needs to consider the reasons for the
incapacity, the extent of the incapacity, whether
it is permanent or
temporary, and whether any alternatives to dismissal do exist’.
[26]
In my view the arbitrator’s
application of the principles, as set out, as a yardstick in cases
such as these, was correct.
[27]
The arbitrator considered whether the
Applicant followed the four-stage enquiry. He found that since van
der Byl was due to be re-assessed
by his doctor on 6 April 2011, his
incapacity was temporary and that called for the Applicant to
consider the last three stages
of the enquiry. Stage two was a
factual enquiry and the onus was on the Applicant to enquire into
what extent van der Byl was unable
to perform his duties. The
Applicant dismissed van der Byl before he was re-assessed and in
doing so, the Applicant failed to enquire
into the extent van der Byl
would have been able to perform his duties. The Applicant’s
witnesses testified that they regarded
the incapacity as temporary.
[28]
The arbitrator found that the Applicant did
not investigate what caused van der Byl’s incapacity and had
they waited for the
re-assessment on 6 April 2011, they would have
known the extent of his capacity to perform his duties. The Applicant
should have
investigated the cause of van der Byl’s ill health
and the extent to which he was able to perform his duties after the
follow-up
assessment on 6 April 2011.
[29]
The arbitrator found that the Applicant
followed stages three and four when it considered van der Byl’s
work circumstances
and created alternative positions to accommodate
him.
[30]
The Applicant’s failure to
investigate the extent to which van der Byl was capable of performing
his duties caused the arbitrator
to find his dismissal substantively
fair. The arbitrator awarded three month’s compensation, as van
der Byl’s dismissal
was unfair only in respect of the
Applicant’s failure to investigate the extent to which he was
able to perform his duties.
[31]
The arbitrator found van der Byl’s
dismissal procedurally fair.
Grounds for review
[32]
The Applicant seeks to review the arbitration
award on a number of grounds as set out in the founding and
supplementary affidavits
filed in support of the application for
review.
[33]
In the heads of argument filed on behalf of the
Applicant, Mr Euijen identified three grounds for review. Those are
the arbitrator’s
findings in respect of the extent of van der
Byl’s incapacity, the arbitrator’s failure to assess the
probabilities
and quality of van der Byl’s evidence and the
amount of compensation awarded. The application for review is
opposed.
[34]
This application for review will be considered on
the basis of the three main grounds identified by the Applicant.
The test on review
[35]
The
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable has been rehashed innumerable times
since
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others;
[6]
‘whether the conclusion reached by the arbitrator was so
unreasonable that no other arbitrator could have come to the same
conclusion.’ The Constitutional Court very clearly held that
the arbitrator's conclusion must fall within a range of decisions
that a reasonable decision maker could make.
[36]
In
the
decision
of
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[7]
the
Supreme Court of Appeal held that:
’
In summary, the
position regarding the review of CCMA awards is this: A review of a
CCMA award is permissible if the defect in the
proceedings falls
within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount
to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have
misconceived the nature of the enquiry or
arrived at an unreasonable
result. A result will only be unreasonable if it is one that a
reasonable arbitrator could not reach
on all the material that was
before the arbitrator. Material errors of fact, as well as the weight
and relevance to be attached
to particular facts, are not in and of
themselves sufficient for an award to be set aside, but are only of
any consequence if their
effect is to render the outcome
unreasonable.’
[37]
In the
subsequent judgment of
Goldfields
Mining South Africa v Moreki
[8]
the
Labour Appeal Court held that:
“
In
short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is
reasonable.”
[38]
It is against this background that the Applicant's
grounds of review must be assessed.
Analysis and
conclusion
[39]
The first ground for review relates to the
arbitrator’s findings in respect of the extent of van der Byl’s
incapacity.
The Applicant’s argument is that the arbitrator
failed to consider the distinction between the
Standard
Bank
matter and the
IMATU
obo Strydom
matter and the attitude of
van der Byl escaped the arbitrator. The findings of the arbitrator
that van der Byl’s employment
was prematurely terminated left
out of account that van der Byl exhausted his leave, refused offers
of alternative employment and
pressed for a permanent termination
package. The Applicant submitted that it was evident from the
testimony of the Applicant’s
witnesses that the Applicant was
prepared to accommodate van der Byl in the period until his next
assessment.
[40]
The Applicant’s case was supplemented in a
supplementary affidavit wherein it was averred that the arbitrator
ought to have
found that van der Byl was not prepared to agree to any
interim arrangement pending his re-assessment on 6 April 2011 but
instead
insisted on a severance package or high paid light duties job
when none was available and the Applicant cannot be criticized for
terminating van der Byl’s services prior to 6 April 2011. The
arbitrator had no regard for the extent to which van der Byl
contributed to the situation where the Applicant found itself in that
as at 30 January 2011 it had exhausted all viable and reasonable
options and had no alternative to dismiss van der Byl on the ground
of incapacity.
[41]
Mr Unwin on behalf of van der Byl submitted that
the onus was on the Applicant to ensure that the dismissal was for a
fair reason
and it ought to have investigated the cause of van der
Byl’s ill health and to what extent he was able to perform his
duties
after the follow-up assessment on 6 April 2011. The Applicant
failed to comply with stage two of the four-stage approach to
dismissals
for ill-health.
[42]
In my view the starting point to assess and
evaluate this ground for review would be the arbitrator’s
findings.
[43]
The question as to whether a dismissal in
the circumstances of the present dispute is substantively fair
depends upon the facts
of the case. An employer needs to
consider the reasons for the incapacity, the extent of the
incapacity, whether it is permanent
or temporary, and whether any
alternatives to dismissal do exist.
[44]
The arbitrator considered whether the
Applicant followed the four-stage enquiry and since van der Byl’s
incapacity was temporary,
the Applicant had to consider the last
three stages of the enquiry. The arbitrator found that the Applicant
followed stages three
and four when it considered van der Byl’s
work circumstances and created alternative positions to accommodate
him.
[45]
There is no merit in the submission that
the findings of the arbitrator left out of account that van der Byl
exhausted his leave,
refused offers of alternative employment and
pressed for a permanent termination package. These issues were indeed
considered by
the arbitrator.
[46]
The arbitrator’s finding on
substantial unfairness is limited to the Applicant’s
non-compliance with stage two of the
enquiry.
[47]
Stage two is a factual enquiry and the onus
was on the Applicant to enquire into what extent van der Byl was
unable to perform his
duties. The arbitrator found that the Applicant
did not investigate the cause of van der Byl’s incapacity
and had they
waited for the assessment on 6 April 2011, they would
have known the extent of his capacity to perform his duties. The
Applicant
should have investigated the cause of van der Byl’s
ill health and the extent to which he was able to perform his duties
after the follow-up assessment on 6 April 2011.
[48]
The Applicant’s failure to
investigate the extent to which van der Byl was capable to perform
caused the arbitrator to find
his dismissal substantively fair.
[49]
There was no evidence before the arbitrator
to show that the Applicant ever embarked on any enquiry into the
extent or otherwise
of van der Byl’s illness or incapacity or
the cause of his incapacity. In fact, the evidence of Mr Knox
and Ms Cundy
show that the only medical enquiry made by the Applicant
was the contents of the doctor’s note which stated that van der
Byl ‘was unfit to drive’. No further enquiry was
made in respect of the extent of his inability to drive. What
makes
matters worse for the Applicant is the fact that no further medical
assessment was made prior to dismissal neither by van
der Byl’s
own doctor nor of any other doctor appointed by the Applicant. Mr van
der Byl’s incapacity was decided only
on the doctors’
notes he submitted. The Applicant never investigated the reason for
van der Byl’s ill health and incapacity.
This is unfortunate,
as the Code and this Court clearly require that the degree of
incapacity should be investigated, at least
in a better way than the
investigation conducted by the Applicant.
[50]
Based
on the evidence before the arbitrator and the arguments before this
Court, it is clear that the Applicant did not
investigate
or consider the reasons for the incapacity and the extent of the
incapacity and in failing to do so, the Applicant failed
its
obligations as envisaged in item 10 and 11 of the Code
[9]
.
[51]
The Applicant placed much emphasis on the
alternative positions it had created for van der Byl. The arbitrator
accepted this when
he found that the Applicant had complied with
stages three and four of the enquiry.
[52]
There is no merit in this ground for
review. It is evident that the Applicant did not
properly
consider the reasons for van der Byl’s incapacity and the
extent of his incapacity and the enquiry conducted by Ms
Cundy fell
short of what the Code and this Court requires of an employer. The
arbitrator’s finding that the Applicant did
not follow stage
two of the enquiry is not so unreasonable that it calls for
interference.
[53]
The second ground for review is that there were
material disputes of fact between the parties. The disputed facts are
identified
as whether it was made clear to van der Byl that the
positions offered were temporary, whether he made any counter offer
to the
alternative positions and whether he was pressed to resign. It
is further the Applicant’s case that material portions of van
der Byl’s evidence was never put to the Applicant’s
witnesses and van der Byl presented different versions on when
Ms
Cundy allegedly asked him to resign. The Applicant submitted that the
arbitrator had to assess the probabilities and the quality
of van der
Byl’s evidence and he did neither. A reasonable arbitrator
should have found that van der Byl’s evidence
was of a poor
quality and self-serving.
[54]
The Respondent submitted that the arbitrator’s
findings on the factual disputes amount to factual findings and that
the Court
should not interfere with factual findings unless those
findings are completely disconnected from the evidence before the
arbitrator,
completely unsupported by evidence or amount to
speculation. The material disputes of fact played no role in the
determination
of the matter.
[55]
The Applicant identified the disputed facts as
whether it was made clear that the positions offered were temporary,
whether van
der Byl made any counter offer to the alternative
positions and whether he was pressed to resign. The arbitrator
accepted that
the Applicant followed stages three and four of the
enquiry and he found that the Applicant created alternative positions
to accommodate
van der Byl, he accepted that the alternatives were
short of dismissal and that those alternatives were rejected by van
der Byl.
The arbitrator found that it was common cause that the
Applicant dismissed van der Byl after an incapacity hearing was held.
[56]
In my view the arbitrator determined these issues
in favour of the Applicant and he accepted the Applicant’s
version. Once
the arbitrator accepted that the Applicant dismissed
van der Byl after an incapacity hearing was held and that it complied
with
stages three and four, he effectively preferred the Applicant’s
version. I can see no review of these findings because the
arbitrator
failed to specifically resolve whether it was made clear that the
positions offered were temporary, whether van der
Byl made any
counter offer to the alternative positions and whether he was pressed
to resign.
[57]
The Applicant’s case is further that
material portions of van der Byl’s evidence was never put to
the Applicant’s
witnesses and van der Byl presented different
versions on when Ms Cundy allegedly asked him to resign. The
arbitrator accepted
that van der Byl was dismissed and he made no
findings on whether he was asked to resign or not. In my view
dismissal was never
in dispute and van der Byl’s resignation or
not was irrelevant to the dispute the arbitrator had to determine.
[58]
Portions of van der Byl’s evidence that were
not put to the Applicant’s witnesses played no role in the
arbitrator’s
determination of the dispute.
[59]
Ms Cundy’s testimony showed that she did not
conduct a proper enquiry to determine the
reasons
for the incapacity, the extent of the incapacity and whether it was
permanent or temporary. Her evidence supports the finding
that the
Applicant failed to follow stage two of the enquiry and none of the
versions not put to the Applicant’s witnesses,
or the dispute
whether van der Byl proposed alternatives or was forced to resign,
informed or influenced the arbitrator’s
finding that stage two
was not followed.
[60]
The finding made by the arbitrator that stage two
was not followed
is not disconnected from
the evidence before him and is indeed supported by evidence. The
material disputes of fact played no role
in the determination of the
matter.
[61]
The last ground for review relates to the compensation awarded to van
der Byl. The Applicant’s case is that the arbitrator
should
have concluded that van der Byl is not entitled to any compensation
in view of the fact that he refused offers of alternative
employment.
The award of three months’ compensation is without rational
foundation, arbitrary and unreasonable. The Applicant’s
last
attack on the compensation is that the amount awarded should have
been calculated at the rate of R 2 200 per month, which
is the amount
van der Byl would have earned had he accepted the offer of
alternative employment.
[62]
This ground for review is without merit for a number of reasons.
[63]
The arbitrator found that van der Byl’s dismissal was
substantively unfair and
awarded three months’
compensation, as van der Byl’s dismissal was unfair only in
respect of the Applicant’s failure
to investigate the extent to
which he was able to perform his duties. The arbitrator has set out
in detail the factors he considered
when he decided on the
appropriate compensation. He substantiated the awarding of three
months’ compensation and there is
no merit in the allegation
that the
award of three months’ compensation is without
rational foundation, arbitrary and unreasonable.
[64]
The Applicant submitted that the amount awarded should have been
calculated at the rate of R 2 200 per month, which is the
amount van
der Byl would have earned had he accepted the offer of alternative
employment. This submission is outrageous. During
the arbitration
proceedings the parties agreed that van der Byl’s remuneration
was R 14 000 per month. This was not disputed,
nor was the arbitrator
at any point requested to consider a different amount to calculate
van der Byl’s remuneration.
[65]
It is trite that when compensation is awarded, it is calculated at
the employee’s rate of remuneration on the date of
dismissal.
[66]
The Applicant seeks for compensation to have been calculated at the
rate of R 2 200 per month, which is the amount van
der Byl
would have earned had he accepted the offer of alternative
employment. It is common cause that van der Byl did not accept
the
alternative offer and it is astonishing that the Applicant is of the
view that compensation should be calculated on the basis
of a salary
he would have earned had he accepted an offer he never accepted.
[67]
In my view an award of three months’ compensation for
substantive unfairness is not so unreasonable that no other
reasonable
decision maker could have awarded it.
[68]
In reviewing the arbitration award, the grounds
for review as raised by the Applicant must be assessed and this Court
can only decide
whether the arbitrator’s decision was so
unreasonable that no other arbitrator could have reached the same
decision. The
test to be applied is a strict one.
[69]
Having considered the evidence adduced at the
arbitration proceedings, the findings made by the arbitrator and the
grounds for review
as raised by the Applicant, I find that the
arbitrator's decision did not fall outside of the band of decisions
to which a reasonable
decision maker could come to.
The
conclusion that the arbitrator reached in respect of the fairness and
unfairness of the Applicant’s dismissal is not one
that no
other reasonable decision maker could not have reached and it is
therefore not subject to review.
[70]
I can see no reason why costs should not follow
the result.
Order
[71]
In the premises the following order is made:
71.1 Condonation of the
late filing of the review application is granted.
71.2 The application for
review is dismissed with costs.
______________
Connie
Prinsloo
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant
:
Advocate M Euijen
Instructed
by
: Deon van der Merwe Attorneys
For
the Third Respondent : Mr C Unwin of Chris Unwin
Attorneys
[1]
Act 66 of 1995.
[2]
(2008)
29 ILJ 1239 (LC) at para 71
[3]
‘
Stage
one: the employer must enquire into whether or not the employee with
a disability is able to perform her work. If
the employee is
able to work, that is the end of the enquiry; the employer must
restore to her position or one substantially
similar to it. It
the employee is unable to perform her work and her injuries are long
term or permanent, then the next
three stages follow. Stage
two: the employer must enquire into the extent to which the employee
is able to perform her
work. This is a factual enquiry to
establish the effect that her disability has on her performing her
work. The employer
may require medical or other expert advice
to answer this question. In respect of stage three: the
employer must
enquire into the extent to which it can adapt the
employee’s work circumstances to accommodate the possibility.
If
it is not possible to adapt the employee’s work
circumstances, the employer must enquire into the extent to which it
can
adapt the employee’s duties. Adapting the employee’s
work circumstances takes preference over adapting the employee’s
duties because the employer should, as far as possible, reinstate
the employee. During this stage, the employer must consider
alternatives short of dismissal. The employer has to take into
account relevant factors including the nature of the job,
the period
of absence, the seriousness of the illness or injury and the
possibility of securing a temporary replacement for the
employee.
Stage four: if no adaptation is possible, the employer must enquire
if any suitable work is available.’
[4]
(2008) 29 ILJ 2947 (LC).at 2950 E-H
[5]
Labour Appeal Court
Case
number CA 08/08
[6]
(2007) 28 ILJ 2405 (CC) at para 110.
[7]
(2013) 34 ILJ 2795 (SCA).
[8]
(2014) 35 ILJ 943 (LAC).
[9]
supra