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[2015] ZALCJHB 188
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Adams v Public Service Co-Ordinating Bargaining Council (PSCBC) and Others (JR30/13) [2015] ZALCJHB 188 (26 June 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
CASE
NO: JR 30/13
In
the matter between
JS
ADAMS
Applicant
and
PUBLIC
SERVICE CO-ORDINATING
BARGAINING
COUNCIL (PSCBC)
First Respondent
F
VAN DER MERWE N.O
Second Respondent
MINISTER
OF SAFETY AND SECURITY
Third Respondent
SAPS
Fourth Respondent
Heard:
14 August 2014
Delivered:
26 June 2015
Summary:
The Labour Court does not interfere with arbitration
awards which fall within bounds of reasonableness.
JUDGMENT
LALLIE
J
[1]
This is an application to review and set aside an arbitration award
of the second respondent (“the arbitrator”)
in which he
found that the applicant was entitled to sick leave with full pay for
the whole period of his absence from work up
to 3 May 2011 but are
not entitled to ill-health retirement. The application for review and
the answering affidavit were filed
late and applications for
condonation of their lateness were filed. When this matter was argued
the applicant and the third and
fourth respondents submitted that
opposition of the applications was no longer pursued. I have
considered them and am satisfied
that there are grounds to condone
the delay. Both applications are therefore granted.
[2]
The applicant was employed at the fourth respondent in 1999. He is a
Warrant Officer. He was exposed to traumatic incidents
in the course
of his duties, which, in 2004, led him to be diagnosed with Post
Traumatic Stress Disorder (“PTSD”) which
is an
occupational disease. He was on sick leave for an extended period. As
he had been diagnosed as suffering from an occupational
disease he
applied for ill-health retirement. His application was unsuccessful
and he was instructed to resume his duties in an
administrative post
by 6 May 2011. He obliged. He however, displayed violent behaviour
for which he was reported to the third respondent.
His doctor put him
on sick leave in July 2012 during which he was served with a notice
of intention to terminate his services owing
to absence from duty. A
dispute pertaining to the applicant’s entitlement to full pay
for the duration of his absence from
work as a result of an
occupational diseases as well as entitlement to ill-health retirement
ensured. It was referred to the first
respondent who issued the
arbitration award part of which the applicant seeks this court to
review and set aside.
[3]
The applicant and the third and fourth respondent (“the
respondents”) decided not to lead evidence at the arbitration
but to present documents and arguments which the arbitrator used to
determine the dispute before him. Deciding the applicant’s
entitlement to temporary incapacity leave and ill-health retirement,
the arbitrator relied on Resolution 7 of 2000 of the Public
Service
Co-ordinating Bargaining Council (“Resolution 7 of 2000”)
and the National Instruction 2/2004 (“Instruction
2/2004”).
He considered that Resolution 7 of 2000 entitled employees who, as a
result of their work suffer occupational injuries
and contract
occupational diseases shall be granted occupational injury and
diseases leave for the duration of the period they
cannot work. He
took into account that Instruction 2/2004 entitles employees who
contract an occupational disease to leave with
full pay from the time
they become unable to work until they resumed their work or
discharged from the service. He found that no
document was tendered
to prove that the applicant was unable to work or could not resume
his duties after May 2011. He accepted
that the applicant was
suffering from an occupational disease and was therefore entitled to
sick leave with full pay for the duration
of his absence from work
until 3 May 2011.
[4]
I have considered the respondents’ submission as well as the
authority the sought to rely on to the effect that the first
respondent lacked jurisdiction to arbitrate the dispute before the
arbitrator. It is incorrect. The issue before the arbitrator
concerned the application and interpretation of collective agreement
and therefore fell within the jurisdiction of the first respondent.
On the issue of the applicant’s entitlement to ill-health
retirement the arbitrator considered the provision of Resolution
7 of
2000 which provides that if both the employer and employee are
convinced that the employee will never be able to perform any
type of
duties at her or his level or rank, the employee shall proceed with
an application for ill-health benefits in terms of
the pension law.
He took into account clause 10.2 of Instruction 2/2004 which provides
as follows:
‘
If the
service is satisfied that an employee will never be able to perform
official duties at his or her level, steps must immediately
be taken
to initiate the process of considering his or her medical retirement
and the process must, if at all possible, be finalised
within 6
months’
.
He found that from the facts presented at the arbitration, he was
unable to conclude that the respondents held or should reasonably
hold the view that the applicant would never be able to perform any
type of duties at his level or rank. He concluded that the
applicant
was not entitled to ill-health retirement.
[5]
The applicant submitted that the arbitration award is not justifiable
in relation to the reasons given for it based on the evidence
tendered at the arbitration. There is no rational connection between
the material placed before the arbitrator and his ultimate
decision.
He failed to apply his mind to evidence and facts when deciding that
the respondents interpreted and applied resolution
7 of 2000
correctly by not approving the applicant’s application for
ill-health retirement and temporary incapacity leave
for the period
after 3 May 2011. Other grounds for review the applicant sought to
rely on are that the arbitrator committed a gross
irregularity by
failing to apply his mind to evidence, misunderstanding evidence and
attributing motives to the applicant which
could not reasonably be
drawn from the evidence before him. He further committed misconduct
in relation to his duties as an arbitrator
by disregarding relevant
evidence, failure to apply his mind to facts and reaching an
unreasonable decision.
[6]
The Labour Court may interfere with a decision of an arbitrator if it
is a decision a reasonable decision-maker could not reach
on the
facts before the arbitrator.
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
Pursuing his case that the arbitration award stands to be reviewed
and set aside, the applicant submitted that he was entitled
to
occupational diseases leave with full pay beyond 3 May 2011. His
entitlement continued to the date when he could resume his
work
alternatively until discharged from service. The reason proffered by
the arbitrator for finding that the applicant was entitled
to sick
leave with full pay up to 3 May 2011 was that no document dated post
May 2011 from a medical practitioner or other expert
was presented to
prove that the applicant was still unable to work or could not resume
his work. The only document the applicant
sought to rely on in
proving his entitlement to paid sick leave beyond 3 May 2011, was a
report by a commander dated 13 February
2012 in which he stated that
the applicant was not coping in the SAPS working environment. The
applicant submitted that she was
again booked off sick due to the
fact that he was unable to cope within SAPS and was currently still
on sick leave. He attached
no medical certificate by any health
practitioner supporting his allegation that he was on sick leave. The
arbitrator’s conclusion
can therefore not be faulted because
the commander had no authority to put the applicant on sick leave.
Absent an official document
from the appropriate practitioner, the
arbitrator had no facts on which to base the conclusion that the
applicant was on occupational
disease leave after 3 May 2011. His
decision to limit the applicant’s sick leave with full pay to 3
May 2011 is reasonable
and based on the evidence before him.
[7]
The applicant submitted that he was entitled to ill-health retirement
because he was subjected to an independent evaluation
process by the
fourth respondent. Both the independent psychiatrist and occupational
therapist concluded that he must separate
from the fourth respondent.
The respondents submitted that contrary to the applicant’s
version, the independent psychiatrist
found that he was fit to resume
his duties. They further submitted that the occupational therapist
did not conclude that the applicant
should be separated from the
fourth respondent but rather that the applicant should consider
separation from the fourth respondent.
The occupational therapist
reached the following conclusion after assessing the applicant:
‘
It is
unlikely that attending to work at the SAPS would have a successful
outcome. He is however capable of work within the open
labour market.
An appropriate separation from the SAPS should be considered,
although I would not consider Mr Adams to be disabled
for work by his
medical condition’.
[8]
The psychiatrist who assessed the applicant reached the following
conclusion:
‘
He should
have recovered by now, but it appears he might be having a secondary
gain. He will therefore not be keen to get better
or to go back to
work. Persons who have been away from work for more than six months
on full pay never returned to work in the
majority of cases’.
[9]
The reports compiled by the psychiatrist and occupational therapist
do not support the applicant’s case that he will never
be able
to perform official duties at his level. They are consistent with the
respondents’ case that he still can. The arbitrator’s
decision not to attach value to the commander’s report cannot
be faulted because his expertise to draw conclusions from the
applicant’s conduct was not disclosed. A consideration of the
totality of the facts presented at the arbitration reflects
that the
arbitration award falls within bounds of reasonableness and there are
therefore no grounds for this court to interfere
with it.
[10]
In the premises, the following order is made:
10.1
The application for review is dismissed.
____________________________
Lallie J
Judge of the Labour Court
of South Africa
APPEARANCES
For
the Applicant: JM Gouws of Johan Gouws Attorneys.
For
the Respondents: L. Pillay for the State attorney Pretoria.
[1]
[
2007]
12 BLLR1097 (CC)