About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 202
|
|
Life Healthcare Group t/a Eugene Marais Hospital v Hlatshwako NO and Others (JR2991/12; J209/13) [2015] ZALCJHB 202; [2015] 10 BLLR 1027 (LC); (2015) 36 ILJ 2886 (LC) (10 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
No: JR 2991/12
J 209/13
DATE: 10 JULY
2015
Reportable
LIFE
HEALTHCARE GROUP t/a
EUGENE
MARAIS
HOSPITAL
.............................................................................................
Applicant
And
COMMISSIONER
HELLEN HLATSHWAKO,
NO
................................................
First
Respondent
COMMISSIONER
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
EMMA
MATHONSI
...................................................................................................
Third
Respondent
Heard:
8 July 2015
Delivered:
10 July 2015
JUDGMENT
HULLEY,
AJ
Introduction
[1]
There are two applications before me. The
first is brought by the Life Health Care Group in which it seeks to
review and set aside
an arbitration award issued by the first
respondent (to whom I shall here refer to as the arbitrator) and
substituted with an award
declaring that the second respondent lacked
jurisdiction to determine the dispute which had been referred to it
by a former employee,
Ms Emma Mathonsi, alternatively, referring the
matter back for arbitration afresh before an arbitrator other than
the first respondent.
[2]
Ms Mathonsi is the applicant in the second
application. She seeks an order making the award of the arbitrator an
order of court.
The outcome of this application is dependent upon the
outcome of the first.
[3]
For the sake of convenience I shall refer
to the parties as “the Hospital” and “Ms Mathonsi”,
respectively.
Factual
background
[4]
Ms Mathonsi was employed by the Hospital as
a nursing sister in its General ICU. It seems that she suffered
from some type
of degenerative spinal condition which impacted upon
her ability to perform some of the tasks which related directly to
her work.
It is unclear from the evidence whether her
performance was actually affected when she was at work, but what is
clear is that Mathonsi
was compelled to take excessive amounts of
sick leave.
[5]
Ms Mathonsi underwent three back operations
in an effort to correct her condition. Arising from the third
(which was performed
in October 2011) her treating physician booked
her off for three months in order to convalesce and recommended that
she be accommodated
elsewhere.
[6]
Ms Mathonsi was due to return to work on 3
February 2012. According to her at some stage between 22 and 24
January 2012 she
met with Ms Nadia Matthysen (the Hospital’s HR
Manager) who informed her that she ought to apply for a post in
Neonatal ICU.
[7]
On 25 January 2012 Mathonsi submitted a
written application for a post in Cardio ICU and a few days later, on
1 February 2012, met
with Ms Matthysen and the managers of the
Neonatal ICU and the Cardio ICU unit. It was indicated during
the course of this
meeting that there were at that stage no positions
in the Neonatal ICU but one was available in the Cardio ICU. Ms
Mathonsi
expressed concerns that she may be unable to perform her
tasks at the Cardio ICU and it was decided that she would have to be
assessed
by a medical doctor to ensure that she was capable of
performing her tasks.
[8]
Ms Mathonsi returned to her regular duties
at General ICU on 3 February 2012, but on 7 February 2012 her
treating physician, Dr
Hefer, booked her off for a further three
months.
[9]
On 30 March 2012 a meeting was held between
Ms Mathonsi, on the one hand, and between the Hospital’s
Regional Manager, Ms
Schutte and Ms Matthysen, on the other, to
discuss the temporary disability of Ms Mathonsi and how the Hospital
could accommodate
her in an alternative position. It was
pointed out that the Hospital currently had no positions available in
the Neonatal
ICU and that Ms Mathonsi was to consult a doctor to
provide a report regarding her ability to work in an alternative
capacity without
jeopardising her health. The Hospital afforded
Ms Mathonsi an opportunity to consult her own physician or one of
three physicians
suggested by the Hospital. Because the
Hospital was prepared to pay for a consultation with one of its
physicians (which
would not apply if she elected to make use of her
own physician), Ms Mathonsi decided to consult Dr Basson who was
employed within
the Hospital.
[10]
The consultation with Dr Basson appears to
have taken place on 16 April 2012 and on 25 April 2012 Ms Mathonsi
again met with Ms
Schutte and Ms Matthysen. During the course
of this meeting the report of Dr Basson was made available to Ms
Mathonsi and
it was explained to her that Dr Basson was of the view
that she was permanently disabled. The Hospital indicated that
an
application would be put in to Old Mutual for permanent disability
benefits.
[11]
Such application was in due course
submitted and on 25 May 2012, Old Mutual approved the application for
disability benefits.
[12]
On 4 June 2012 Ms Mathonsi signed the
relevant forms to receive the permanent disability benefits from Old
Mutual.
[13]
On 3 October 2012 the Hospital completed a
so-called UI19 form to enable Ms Mathonsi to apply for UIF benefits.
A copy
of this document was included in the bundle of documents
submitted to the arbitrator. The document indicates that Ms
Mathonsi’s
services were terminated on the basis that she was
permanently disabled. The form requires the employer to
indicate the basis
of the termination by selecting a relevant code
from amongst various codes contained within the form. The
employer marked
the code which corresponded with “illness/medically
boarded”.
[14]
Ms Mathonsi submitted a claim for UIF
benefits but was apparently informed that she did not qualify for
such benefits since she
had been dismissed. It is unclear why
the officials of the Unemployment Insurance Fund had adopted this
stance in light of
the content of the UI19 form as explained above.
However, whatever the reason might have been, this spurred Ms
Mathonsi into
action. Until then, she testified, she had been
unhappy about the fact that she had been medically boarded, but felt
that
the Hospital had foisted this outcome upon her and informed her
that she had no choice in the matter. Armed with this new
information (i.e. that she had been dismissed), however, she
immediately referred an unfair dismissal dispute to the Commission
for Conciliation, Mediation and Arbitration. In her referral
form Ms Mathonsi alleged that the date of the dispute arose
on 27
September 2012. (It is unclear what this date was based upon,
but it became apparent during the course of the arbitration
proceedings the date of dismissal was in fact 30 May 2012.)
Arbitration
proceedings
[15]
The matter was conciliated and when
conciliation failed it proceeded to arbitration before the first
respondent.
[16]
On 30 October 2012 the arbitrator delivered
an award in which she found that Ms Mathonsi had “discharged
the onus to prove
that a dismissal exist[s]” and the Hospital
failed to prove that the dismissal was fair. She ordered the
Hospital to
reinstate Ms Mathonsi and to pay her an amount of
R86 544.00 as compensation.
[17]
It is apparent from the award that the
arbitrator found that the Hospital had dismissed Ms Mathonsi on 30
May 2012.
[18]
With regard to the question of whether a
dismissal had been established the arbitrator noted that the Hospital
had not disputed
the fact that the contract of employment had been
terminated. Based on this she reasoned that –
“
therefore
a termination of a contract of employment does exist. The
Labour Relations Act 66 of 1995 (LRA) states that “dismissal
means that an employer has terminated a contract of employment with
or without a notice”. I can, therefore, conclude
that the
applicant [Mathonsi] was dismissed”.
Grounds of review
[19]
In seeking to review the decision of the
arbitrator the Hospital contended that the arbitrator had lacked
jurisdiction to determine
the dispute. It relied upon two
distinct grounds for this contention. In the first place, it
pointed out, given the
arbitrator’s finding that Ms Mathonsi
had been dismissed in May 2012 it was apparent that the referral to
the CCMA was out
of time and that in the absence of an application
for condonation the arbitrator had no jurisdiction to entertain the
dispute.
Secondly, it contended that Ms Mathonsi had not been
dismissed and had in fact failed to establish that she had been.
[20]
With regard to the second ground it was
contended in argument that Ms Mathonsi had consented to applying for
medical boarding and
this precluded her from instituting a claim for
unfair dismissal. Such consent, it was submitted, stemmed, at
worst, for
the Hospital, from Ms Mathonsi’s acquiescence in the
outcome of the application for permanent disability.
Consideration of
the arguments
[21]
In terms of
section 191(1)(a)
of the
Labour
Relations Act, 1995
a dismissed employee may refer a dispute
concerning the fairness of his or her dismissal to the CCMA or a
Bargaining Council and,
in terms of paragraph (b) of that
sub-section, must do so within “30 days of the date of a
dismissal or, if it is a later
date, within 30 days of the employer
making a final decision to dismiss or uphold the dismissal”.
[22]
In terms of sub-section (2) the bargaining
council or CCMA may permit an employee to refer a dispute “after
the relevant time
limit in sub-section (1) has expired”
provided that the employee “shows good cause at any time”.
[23]
In
Van
Rooy v Nedcor Bank Limited
[1]
Mlambo J (as he then was) considered that the provision of
section
191(1)
was a jurisdictional fact necessary for the CCMA to consider
an application. The learned judge held that compliance with the
30 day time period in
section 191
was peremptory and that condonation
was ‘necessary’ for a dispute to be referred beyond the
time period contemplated
in that section. The learned judge
noted that ‘the fatality of a late referral is cured by
condonation if granted and
only [then] will the Commission have
jurisdiction to conciliate the dispute’
[2]
.
The learned judge continued in the following paragraph to note that
the CCMA was ‘entitled to check and ensure compliance
with the
Act’ and where it found that there had been no compliance
because the referral was late then it ‘must consider
if good
cause has been shown’ and if so ‘it will condone the
lateness and it will then have jurisdiction to conciliate
the
dispute’. If good cause had not been shown and
condonation had not been granted, the
CCMA
‘does
not have jurisdiction to conciliate the dispute’
[3]
.
[24]
This
view was subsequently rejected by Pillemer AJ
[4]
whose view was upheld on appeal
[5]
and has been applied since
[6]
.
[25]
The contention was raised in the present
case that the question of condonation or the absence thereof had not
been raised during
the course of the arbitration proceedings and that
the applicant is accordingly precluded from doing so now. In
the
Fidelity Guards’
case,
supra
,
the failure to raise the condonation point timeously was considered
fatal.
[26]
In my view, there are several indications
in the language of section 191 which suggest that the failure to
refer the dispute timeously
is a jurisdictional fact, necessary for
the proper adjudication of the dispute. While the concerns
raised by Pillemer AJ
in
Fidelity Guards
regarding the potential for abuse, are not irrelevant, it seems that
those concerns are more catered for by an application of the
principles of waiver or estoppel, not by an exercise in statutory
construction. The consequence of the interpretation given
to
the wording of section 191 in the
Fidelity
Guards
case is that entire sub-section
(i.e. subsection (2)) is rendered nugatory.
[27]
Moreover, no explanation is provided by
Pillemer AJ as to why a lay employer who, ignorant of the time
periods in section 191(1),
fails to raise the point of delay, should
be precluded from raising the point at a later stage. In such a
case, the type
of abuse contemplated by the learned Judge does not
arise. Yet the delay may be substantial and the employer
seriously prejudiced
by it. It is unhelpful to say that the
employer who finds itself in such a position was obviously not
prejudiced if it was
prepared to proceed with the hearing. The
point is that the question of prejudice would only arise if it was
relevant to
an issue in dispute and, in the absence of any
condonation application (of which the employer was on the facts
posited by myself,
unaware), it would be irrelevant.
[28]
The facts of the present case demonstrate
this point. While the representative of the applicant was a HR
manager, there is
no suggestion that she had any legal training.
Moreover, Ms Mathonsi’s indication in her referral form that
the dispute
arose on 27 September 2012 probably misled the arbitrator
and probably misled the employer. (I do not contend that there
was an intention to mislead.) No issue of condonation arose on
a consideration of her referral form.
[29]
Nevertheless, I am bound by the decision of
the LAC and the first point must accordingly be dismissed.
[30]
I turn now to consider the second point.
[31]
There
is little doubt that proof of a dismissal is a jurisdictional
prerequisite for the CCMA to exercise jurisdiction and it is
ultimately for this Court to determine whether there was indeed a
dismissal.
[7]
There was
some dispute as to whether the issue had been raised before the
arbitrator. The fact that the arbitrator
found that Ms Mathonsi
had discharged the onus of proving a dismissal, suggests that it had
been. However, it is unclear
from the record that it had been
dealt with at all. At any rate, since it is a jurisdictional
point, I am satisfied that
it can be raised for the first time before
this Court.
[8]
[32]
In
the present case, the issue of whether the Hospital had dismissed Ms
Mathonsi was a live issue. The essence of the Hospital’s
contention is that Ms Mathonsi was not dismissed, but that her
services were terminated by agreement. For there to be an
agreement to terminate the contract of employment there must be a
‘meeting of the minds’. Both the offer and
its
acceptance must be unequivocal.
[9]
Since the onus to prove a dismissal rests with the employee it is for
the employee to prove that no such agreement existed.
Naturally, the employer would have an evidentiary burden.
[33]
Counsel for the applicant has tried to
persuade me that I am in a position to decide the matter on the
papers, I do not agree.
As previously indicated, there is doubt
as to whether the issue was raised before the arbitrator and the
parties may not have had
a sufficient opportunity to deal with the
matter. There are several indications on the record that Ms
Mathonsi may have agreed
to the termination of her employment in
order to pursue her claim for disability benefits, but her own
testimony was that while
dissatisfied she believed she was bound to
go along with that
process.
These
conflicting contentions do not appear to have been advanced in
relation to the question of whether an agreement to terminate
had
been concluded.
[34]
Whether
there is a dismissal is a matter for this Court to determine. I
have previously highlighted the practical difficulties
with the
application of that principle.
[10]
Although the decision is this Court’s to make, I am unable to
do so and it would be improper for me to attempt to do
so on the
record as it stands and without having afforded both parties the
opportunity to deal with the matter fully. In
light of my
earlier observations
[11]
it
seems appropriate to direct the employee, if so advised, to institute
proceedings in this Court to determine whether she had
been
dismissed.
[35]
I do not intend determining the remaining
challenges to her award at this stage. That is an issue which
may, depending upon
the outcome of the first issue, arise at some
stage in the future.
[36]
Ms Mathonsi’s application to make the
award an order of court must be suspended pending the determination
of the dispute relating
to her dismissal.
[37]
I do not think it is in the interests of
justice and fairness to grant an order for costs in this matter.
[38]
In the circumstances I grant an order in
the following terms:
38.1
Ms Mathonsi is directed, within 10 days of
this judgment, to deliver either a statement of claim in terms of
Rule 6 or an application
in terms of Rule 7, whichever she is advised
to, seeking an order declaring that she was dismissed as contemplated
in
section 186(1)(a)
of the
Labour Relations Act, by
the Life Health
Group t/a Eugene Marais Hospital. Thereafter, the parties shall
exchange pleadings in accordance with the applicable
rule.
38.2
The determination of the remaining grounds
of review raised by the applicant in case number JR 2991/2012 is
postponed
sine die
,
pending the outcome of the dispute in paragraph 38.1.
38.3
The application to make the award an order
of court in case number J209/2013 is suspended pending the outcome of
the dispute referred
to in paragraph 38.1.
38.4
There is no order as to costs.
Hulley, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Advocate Reghana Tulk
Instructed
by: Norton Rose Fulbright South Africa Inc
On
behalf of the Third Respondent: Mr A Goldberg
Instructed
by: Goldberg Attorneys
[1]
[1998]
5 BLLR 540 (LC)
[2]
at
paragraph 14
[3]
at
paragraph 15
[4]
Fidelity
Guards Holdings (Pty) Ltd v Epstein & others
(2000) 21 ILJ 2009 (LC)
[5]
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO & others
(2000) 21 ILJ 2382 (LAC)
[6]
Magalies
Water Board v La Grange NO & others
(2002) 23 ILJ 1055 (LC)
[7]
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd; SA
Rugby Players (Pty) Ltd v SA Rugby Players Union & another
(2008) 29 ILJ 2281 (LAC) at 2229G – 2230F
[8]
Legal
Aid Board v John NO & another
(1998) 19 ILJ 851 (LC), at 857D – E;
CTR
Protection Services v. Wainwright & others
2013 JDR 0103 (LC)
[9]
RH
Christie & GB Bradfield,
The
Law of Contract in South Africa
(6
th
ed.), p. 34
[10]
Distinctive
Choice 721 CC t/a Husan Panel Beaters v Dispute Resolution Centre
(Motor Industry Bargaining Council) & others
(2013) 34 ILJ 3184 (LC), at 3200D – E
[11]
Distinctive
Choice
,
supra
,
at par. 171