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[2015] ZALCJHB 261
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Du Plessis v Public Service Co-ordinating Bargaining Council and Others (JR2218/11) [2015] ZALCJHB 261 (14 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 2218/11
H
C B DU PLESSIS
Applicant
and
PUBLIC
SERVICE CO-ORDINATING BARGAINING COUNCIL
MS
N G J MBILENI
MINISTER
OF SAFETY AND SECURITY
SOUTH
AFRICAN POLICE SERVICE
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Delivered:
14 August 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This
application was brought before the Court in terms of section 145(1)
and (2), read together with section 158(1)(f) and (g) of
the Labour
Relations Act
[1]
(the LRA). The
Applicant seeks to have an arbitration award, issued by the Second
Respondent (Arbitrator) under the auspices of
the First Respondent
(PSCBC), reviewed, set aside and be substituted by a finding of this
Court.
[2]
The
Applicant also sought condonation for the late filing of the replying
affidavit. The parties had agreed that condonation should
be granted.
The Court is satisfied that good cause has been shown in respect of
the applicant’s late filing of the replying
affidavit.
Background:
[3]
The
Applicant is employed by the Fourth Respondent (the SAPS) in the
capacity of a Lieutenant-Colonel. There is a history
of the
Applicant making applications for temporary incapacity leave as well
as ill-health retirement dating back to 2003.
[4]
He
had referred a dispute to the First Respondent (the PSCBC) in terms
of section 24 (2) and 24 (5) of the LRA. He sought approval
of his
application for temporary incapacity leave and ill-health retirement
as contemplated in Resolution 7 of 2000
[2]
on the basis that he suffered from Post Traumatic Stress Disorder as
a result of his exposure to traumatic events in the course
of his
duties.
[5]
The
Applicant’s contention was that his health problems started in
1998 when the offices of SAPS where he was stationed were
petrol
bombed whilst he was inside the building. He contends that his
requests for trauma counselling were ignored by SAPS. He
had however
been treated for PTSD and depression by various medical practitioners
and had furnished the SAPS with all of his medical
reports.
[6]
It
is common cause that when seeking temporary incapacity or ill-health
retirement, an application has to be made with all the supporting
medical reports attached. The application is then forwarded to a
Health Risk Manager (HRM), an independent body appointed by SAPS
to
advise on the granting of incapacity leave and ill health retirement
of employees. The HRM is a medical assessor appointed to
examine
employees and to make recommendations to the National Commissioner on
all applications related to incapacity leave, ill-health
retirement
and injuries sustained by employees. Ultimately the decision to grant
or refuse such leave applications lies with the
National
Commissioner.
[7]
The
Applicant’s last made such an application on 18 August 2009
which was declined. Aggrieved, he filed a grievance which
on his
version was not attended to. This led him to approach this Court
directly on 11 November 2009 under Case number JR2720/09.
That
application was however withdrawn after the parties had agreed that
the SAPS would re-evaluate the Applicant. The re-evaluation
was done,
and the SAPS still refused to grant him the temporary incapacity
leave or ill-health retirement. He then referred a dispute
to the
PSCBC resulting in the matter coming before the Arbitrator, and the
resultant award which is the subject of this review
application.
The
award:
[8]
The arbitration proceedings took place on 10 March 2011. No oral
evidence was led as the parties had agreed to have the matter
determined on the basis of written submissions and bundle of
documents. The Arbitrator established that it was not in dispute that
the Applicant had indeed been diagnosed with PTSD since 1999. She
made reference to clause 7.6 (a) of the Resolution which provides
that;
“
Employees who, as a result
of their work, suffer occupational injuries or contract occupational
diseases shall be granted occupational
injury and disease leave for
the duration of the period they cannot work.”
[9]
The Arbitrator in arriving at her conclusions also had regard to
Clause 6 (a) of the National Instruction 2/2004
[3]
which, she held should be read in conjunction with the Resolution,
and which provides that;
‘
An employee who sustains an
occupational injury, or who contracts an occupational disease, is
entitled to occupational injury and
disease leave with full pay, from
the time that he or she becomes unable to work-
(i)
until he or she can
resume his or her work or
(ii)
until he or she is
discharged from service after an inquiry as contemplated in Section
34 of the Act.”
[10]
The Arbitrator further found that the National Instruction set out
the procedures to be followed in claiming entitlements under
the
Resolution, and that the HRM only made recommendations, which the
SAPS (National Commissioner) had a discretion to either accept
or
reject.
[11]
The Arbitrator further lamented over the manner with which the case
was presented to her, and the lack of
viva voce
evidence. She
commented that this approach had not made her task easier to
interrogate other issues.
[12]
She had further concluded that the report of the HRM had not been
contradicted by any competent and experienced practitioner,
and there
was no basis to reject it as the SAPS had relied on it in taking a
decision.
The grounds of review:
[13]
The essence of the submissions made on behalf of the Applicant was
that in the event that an employee of the SAPS contracts
an
occupational injury or disease, such as Post Traumatic Stress
Disorder, then the SAPS does not have a discretion to refuse an
application for leave from the date that the employee becomes ill, to
the date that he or she is fit to resume duties, or is discharged
from the SAPS.
[14]
It was further submitted on behalf of the Applicant that the
arbitration award was reviewable on the following grounds:
a)
The
award is not justifiable in relation to the reasons given for it,
alternatively it is not rationally connected to the evidence
before
the Arbitrator;
b)
The
Arbitrator failed to apply her mind to the evidence and facts before
her in finding that the SAPS had correctly interpreted
and applied
Resolution 7 of 2000 in not approving the Applicant’s
application;
c)
The
Arbitrator committed a gross irregularity in failing to apply her
mind to the evidence, misunderstood the evidence and attributed
motives to the applicant which could not reasonably be drawn from the
evidence;
d)
The
Arbitrator committed misconduct in that she disregarded relevant
evidence, failed to apply her mind to facts presented, issued
an
unreasonable award;
e)
The
applicant had proved his entitlement to relief at the arbitration
proceedings.
[15]
The SAPS disputes that the award is reviewable on the above grounds.
It submitted that;
a)
The
award is one that a reasonable commissioner could make, and it
clearly evidences consideration having been given to the above
grounds of review.
b)
In
disputes pertaining to the interpretation and/or application of
collective agreements, the applicant bears the onus to prove
that the
interpretation and/or the manner of application contended for is the
one that ought to be accepted, and that this must
be proved on a
balance of probabilities;
c)
Where
the applicant contends that he ought to have been granted leave on
grounds of ill-health retirement in terms of Resolution
7 of 2000,
the factual precondition that must be shown by the applicant to exist
is the inability to work owing to an occupational
injury or disease;
d)
To
the extent that the Applicant elected not to lead evidence on the
fact that he was indeed unable to work owing to an occupational
injury or disease, he could not have discharged the onus to prove
that the interpretation and manner of application contended for
is
the one that ought to be accepted;
e)
The
arbitration award cannot be said to have been unreasonable in the
circumstances where no evidence was placed before the Arbitrator.
The
relevant provisions:
[16]
As per item (v) of the parties’ pre-arbitration minutes
[4]
,
the Arbitrator was called upon to decide;
‘
Whether the Applicant is
entitled to temporary incapacity leave and ill-health retirement with
reference to Resolution 7 of 2000’.
[17]
This
Resolution is a collective agreement as defined in section 213 of the
LRA, in terms of which
an
employee has the right to apply for
inter
alia
,
temporary incapacity leave in circumstances where the prescribed sick
leave cycle has been exhausted. The relevant provisions
are;
Clause
7.5.1 Temporary
disability leave:
“
(a)
An employee whose normal sick leave credits in a cycle have been
exhausted and who, according
to the relevant practitioner, requires
to be absent from work due to disability which is not permanent, may
be granted sick leave
provided that:
(i)
her or his supervisor is
informed that the employee is ill; and
(ii)
a relevant
registered medical and/or dental practitioner has duly certified such
a condition in advance as temporary disability
except where
conditions do not allow.
(b)
The employer shall, during 30 working days, investigate the extent of
inability to
perform normal official duties, the degree of inability
and the cause thereof. Investigations shall be in accordance with
Item
10(1) of Schedule 8 of the Labour Relations Act of 1995
(c)
the employer shall specify the level of approval in respect of
applications for disability
leave.’
[18]
Clause 7.5.2.
Permanent disability
leave, provides that;-
a)
Employees whose degree
of disability has been certified as permanent shall, with the
approval of the employer, be granted a maximum
of 30 working days
paid sick leave, or such additional number of days required by the
employer to finalise the process set out
in (b) and (c) below.
b)
The employer shall,
within 30 working days, ascertain the feasibility of:
(i)
alternative employment;
or
(ii)
adapting duties or work
circumstances to accommodate the disability.
c)
If both the employer and
the 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 application for ill health benefits in terms of
the Pension Law of 1996.
[19]
In regards to the precise relief claimed by the applicant, it was
recorded in the pre-arbitration minute that he seeks approval
of
temporary incapacity leave and ill-health retirement in terms of
Resolution 7 of 20000 read with National Instruction 2 of 2004.
The
operation of sick leave as per the collective agreement is given
effect to by National Instruction. The relevant provisions
of the
National Instruction are;
Clause
4(6) (a) which provide that:-
‘
An employee who sustains an
occupational disease or injury is entitled to occupational injury and
disease leave with full pay from
the time he/she becomes unable to
work-
(i)
until he or she can
resume his or her work or
(ii)
until he or she is
discharged from the Service after an enquiry as contemplated in
Section 34 of the Act.’
Clause
4(6) (b), which provides that;
“
An employee who is
absent from work due to an alleged occupational injury, or an
occupational disease, must complete and submit
the documents required
for temporary incapacity leave and the documents must be referred to
the health risk manager for verification
and validation of the period
of absence”
[20]
The National Instruction further makes reference to refers to section
34 (1) (a) of the Police Service Act
[5]
,
which provides that:-
‘
The National Commissioner
may designate a member, a category of members or any other person or
category of persons who may, in general
or in a specific case inquire
into the fitness of a member to remain in the Service on account of
indisposition, disease or injury”.
Section
34(1) (f) of the same Act provides for an inquiry into:-
‘…
.a disease or
indisposition alleged to have been contracted in the course of
his/her duty….’
Furthermore,
the administrative inquiry into the indisposition of injured
employees is held in accordance with Regulation 68 (1)
to the Police
Service Act, which states that:-
‘
the commissioner may, for
administrative purposes, convene a board to inquire into:-
(a)
an injury alleged to
have been sustained by a member or any other person in the service of
this Department, in an accident
arising out of or in the course
of the execution of his functions, or a disease or indisposition
alleged to have been contracted
in the course and as a result of the
execution of his functions….”
The
legal framework and evaluation:
[21]
In
Goldfields
Mining South Africa (Pty) Ltd v CCMA
[6]
the Labour Appeal Court in explaining the
Sidumo
[7]
test held that provided that the arbitrator gave the parties a full
opportunity to state their respective cases at the hearing,
identified the issue that he or she was required to arbitrate,
understood the nature of the dispute and dealt with its substantive
merits, the function of the reviewing court is limited to a
determination whether the arbitrator’s decision is one that
could not be reached by a reasonable decision-maker on the available
material
[8]
.
[22]
In essence, the enquiry is whether the decision arrived at by the
Arbitrator in the light of the
material
placed before him or her
falls within a range of reasonableness. In
C
Arends & Others v SALGBC & Others
[9]
the Labour Appeal Court (per Murphy AJA) advised against the folly of
parties agreeing to have a matter determined without the
leading of
any oral evidence or agreed statement of case. Insofar as the merits
of that case were concerned, it was held that;
“
The appellants are to some
extent the authors of their own misfortune. They placed the matter
before the arbitrator as if there
was a simple, single issue capable
of resolution with the barest minimum of factual matter. Their
approach was neither prudent
nor correct. When parties desire to
proceed without oral evidence in the form of a special case, it is
imperative that there should
be a written statement of the facts
agreed by the parties, akin to a pleading. Otherwise, the presiding
officer may not be in a
position to answer the legal question put to
him. Alternatively, without such a statement, the question put is in
danger of being
abstract or academic. Courts of law and arbitration
tribunals dealing with disputes of right exist for the settlement of
concrete
controversies and not to pronounce upon abstract questions
or to give advice upon differing contentions about the meaning of an
agreement. Where a question of legal interpretation is submitted to
an arbitrator, the parties must set out in the stated case
a factual
substratum which shows what has arisen and how it has arisen. The
stated case must set out agreed facts, not assumptions.
The purpose
of the rule is to enable a case to be determined without the
necessity of hearing the evidence. An oral stated case
predicated
upon poorly ventilated and potentially unshared assumptions as to the
facts defeats the purpose of the requirements
of a stated case and,
as this case shows, will lead to problematic results
[10]
.”
(Citations omitted)
[23]
The case before this Court typifies a pattern within Bargaining
Councils in the public sector when disputes in terms of section
24 of
the LRA are referred. It appears that parties are content with
referring such disputes and then concluding perfunctory
pre-arbitration
minutes that are meaningless and unhelpful to the
Arbitrator. It is appreciated that the rules of bargaining councils
within the
public service in particular require parties to hold such
pre-arbitration conferences prior to matters being set-down. This
however
does not imply that little attention and detail must be given
to this obligatory process. There is a reason behind such rules as
they are meant to curtail the issues and enable Arbitrators to
expeditiously deal with matters. Some seriousness and effort is
therefore required of the parties in this regard.
[24]
Other than going through the motions in concluding meaningless
pre-arbitration minutes, the parties in such application are
also
content with agreeing to dispense with oral evidence. They would then
agree to file written heads of argument and then bombard
unsuspecting
Arbitrators with voluminous bundles and equally incoherent written
heads of arguments. Once the parties have gone
through this charade,
they then pat themselves on their backs for a job well done, and
expect the overwhelmed Arbitrators to make
sense of their respective
cases, or worst still, to make a finding in their favour.
[25]
Even more disconcerting however is the temerity of the losing parties
in the above circumstances to then approach this Court
with contrived
review applications, and complain that the Arbitrator had failed to
take this or that evidence into account, as
it had happened in this
case.
[26]
The parties in this case agreed that each shall prepare and submit
its own bundle of documents and to argue the matter by means
of
written heads of argument, and consequently, no oral evidence was
presented
[11]
. Only one fact
was recorded as being in dispute in the pre-arbitration minute, i.e.
being whether the applicant was entitled to
temporary incapacity
leave and ill-health retirement in terms of Resolution 7 of 2000
[12]
.
This issue is not by any stretch of imagination a simple one capable
of resolution with the barest minimum of factual matter.
[27]
The Arbitrator was then presented with voluminous documents including
two sets of bundles submitted by the applicant. Bundle
A contained
105 pages, whilst bundle B contained 175 pages. The SAPS’
bundle contained 105 pages, and two pages of written
heads of
argument. The applicant submitted nine pages of written heads. In
total, the combined bundle of documents the Arbitrator
had to sift
through in order to determine the main issue contained 396 pages.
[28]
As stated in
C
Arends & Others v SALGBC & Others
[13]
,
when the parties desire to proceed without oral evidence in the form
of a special case, it is imperative that there should be
at least a
written statement of the facts agreed by the parties, akin to
pleadings. In this case however, the parties were content
to burden
the Arbitrator with a voluminous bundle, and written heads of
arguments which obviously amongst other thing raised material
disputes of facts. No attempt was made in the pre-trial minute to
indicate what issues were in dispute or those that were common
cause,
to make the task of the Arbitrator easier. It was expected of the
Arbitrator to sift through volumes of material, consider
the written
heads of argument, and come up with a reasonable conclusion.
[29]
To the extent that the parties chose this path in presenting their
respective cases, they should be expected to stand and fall
by it.
They cannot therefore complain that the Arbitrator failed to take
this or that evidence into account, when it is trite that
documents
do not speak for themselves, and also when it was not made easy for
the Arbitrator to interrogate the issues as she had
lamented in
paragraph 5.7 of her award. It was even more crucial for oral
evidence to be led or at least a formal statement of
case under oath
to be filed, as the parties knew that there were factual disputes
surrounding voluminous medical certificates and
reports, and the
report of the HRM.
[30]
In the light of the principles set out in
Mgobhozi
v Naidoo NO & others
[14]
one would have expected that applicants seeking relief where temporal
or permanent incapacity is claimed, especially in the light
of the
requirements set out in the Resolution and National Instruction,
would know that medical certificates or reports not accompanied
by
affidavits from medical practitioners are meaningless, and do not
necessarily constitute admissible evidence. In the same vein,
a
document is mere hearsay evidence and a court or arbitrator may
refuse to admit such evidence. Worst still, a case cannot be
made out
in written arguments, and such arguments in any event do not
constitute evidence.
[31]
To this end, where a case is presented in the manner that it was
presented as in the arbitration proceedings under review,
I fail to
appreciate what ‘evidence’ the Arbitrator could possibly
have failed to take into account. This is even moreso,
where there
was no agreement recorded in the pre-trial minute as to what the
common cause or disputed facts were in detailed terms,
or where no
proper statements of case under oath were filed, or even where a
cursory reference was made to the effect that “
the
documents purport to be’
in the pre-arbitration minute.
[32]
Given the invidious position the Arbitrator was placed in, and in
order to make sense of the voluminous material placed before
her, she
had had regard to Assessment Report
[15]
prepared by the HRM in terms of which the Applicant’s
application for ill health retirement was declined. In the report,
it
was stated that firstly, the Applicant’s symptoms had improved;
secondly, that he was physically fit to perform his duties,
thirdly,
that his concentration was noted to be good during assessments, and
that he had the cognitive ability to complete tasks
given to him at a
high level. SAPS or the National Commissioner had followed these
recommendations and had instructed the Applicant
to resume his duties
in an alternative position to accommodate his incapacity.
[33]
In argument, it was contended that the Arbitrator had made reference
to the National Instruction when it had no bearing on
the matter.
This contention lacks merit on the basis that the purpose of the
National Instruction is to regulate the management
and administration
of sick leave within the SAPS as provided for in the Resolution. The
two documents cannot be read, interpreted
or applied in isolation
from each other. Even though, the National Instruction does not
make reference to Resolution 7, its
purpose, in the absence of any
such mechanisms in the Resolution, is to provide mechanism for the
implementation of the provisions
of that Resolution.
[34]
Clause 4 (3) of the National Instruction deals sick leave, whilst
clause 4 (4) deals with temporary incapacity leave. To the
extent
that it was common cause that PTSD is classified as an occupational
disease, leave in this regard is regulated by the provisions
of
clause 4 (6) of the Instruction. Clause 5 and 6 of the Instruction
make provision for procedures to be followed in the event
that an
employee seeks to apply for any form of leave, whilst clause 7 deals
with the approval of leave. Clause 7 (3) of the Instruction
deals
with the role of the National Commissioner in matters pertaining to
temporary incapacity leave. Leave pertaining to occupational
diseases
is dealt with in terms of clause 5 (6) and requires applications to
be forwarded to the HRM for verification and validation
of the period
of absence, and in terms of clause 7 (2) (b), for such applications
to go through the HRM for recommendations.
[35]
I therefore fail to understand the contention that the two documents
should be treated independently. Furthermore, to the extent
that the
Arbitrator had placed emphasis on the HRM report in arriving at her
conclusions, I fail to appreciate how it can be said
that the report
was contradicted by the applicant, especially in view of the question
of onus as submitted on behalf of the SAPS,
and also in view of the
evidentiary value to be attached to the Applicant’s medical
reports relied upon by him.
[36]
As it was correctly pointed out on behalf of the third and fourth
respondents, where the dispute relates to the interpretation
or
application of a collective agreement, the applicant bears the onus
to prove that the interpretation and/or the manner of application
contended for is the one that ought to be accepted. Clause 4 (4) (a)
makes it clear that the granting of temporary incapacity leave
is at
the discretion of the National Commissioner (or delegate), and I
cannot find support on a reading of the provisions of the
National
Instruction that suggest that the National Commissioner is obliged to
grant the applications for leave as long as certain
conditions have
been met. For the purposes of granting occupational injury and
disease leave, the matter goes through the HRM as
it had happened in
this case, and the National Commissioner exercised his discretion.
[37]
Where the HRM had made the findings as already illustrated above, and
the National Commissioner had acted upon those recommendations,
the
onus was on the applicant to show in what material respects that
decision should not have been taken in the light of his factual
precondition which was not corroborated by oral evidence.
Furthermore, the applicant has to show in what respects the National
Commissioner had not exercised his or her discretion fairly. The
Arbitrator in these circumstances could not have on her own simply
interrogated the documents before her, and be expected to come up
with an outcome that was suitable to the Applicant.
[38]
In the light of the manner with which the matter was presented before
the Arbitrator, I fail to appreciate how it can be said
that the
outcome reached by the Arbitrator was not reasonable. The
failure by an arbitrator to attach particular weight to
evidence or
attachment of weight to the relevant evidence and the like are not in
themselves a basis for review. The issue is whether
the resultant
decision fell outside of a band of decisions to which reasonable
decision-maker could come on the same material
[16]
.
[39]
I further fail to appreciate how it can be said that the Arbitrator
had narrowed the scope of the enquiry as against what was
to be
determined under the pre-arbitration minutes, when the parties had
themselves narrowed the issues for determination to whether
the
Applicant was entitled to temporary incapacity leave and ill-health
retirement with reference to Resolution 7 of 2000. The
arbitrator
gave the parties a full opportunity to state their respective cases
at the hearing and they chose a particular manner
of presenting their
respective cases. She had also identified the issue that she was
required to arbitrate, understood the nature
of the dispute, dealt
with its substantive merits and had arrived at a reasonable outcome.
[40]
In
C
Arends & Others v SALGBC & Others
,
it was also held that an arbitrator faced with a request to determine
a special case where the facts are inadequately stated should
decline
to accede to the request
[17]
.
In this case however, the parties as already stated merely presented
the Arbitrator with documents and written heads of arguments.
This is
how they wished to have their matter determined and the Arbitrator
had indulged them. I did not therefore understand the
applicant’s
case for the purposes of this review application to be that the
Arbitrator should have declined to determine
the matter in the light
of the manner with which the material placed before her.
[41]
In the light of the above, I am satisfied that based on the material
before the Arbitrator, there is no basis for a conclusion
to be
reached that the outcome she had reached did not fall within a range
of reasonableness. I have further had regard to the
issue of costs,
and it is my view that upon a consideration of law and fairness, a
cost order is not warranted in this case.
Order:
i.
The
application to review and set aside the arbitration award issued by
the second respondent under case number PSCB207-10/11 is
dismissed.
ii.
There
is no order as to costs.
________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Mr Gouws of Johan Gouws
Attorneys
On
behalf of the Respondent:
Adv Mosam
Instructed
by:
The State Attorney
[1]
No 66 of 1995 as
amended
[2]
At page 49 of bundle of documents
[3]
I
ssued
by the National Commissioner of Police in terms of section 25 of the
Police Act 86 of 1995.
[4]
Page 72 of Index
[5]
South African
Police Services Act 68 of 1995.
[6]
(2014) 35 ILJ 943
(LAC) at para [20]
[7]
[2007] 12 BLLR
1097 (CC)
[8]
See also
South
African Medical Association obo Mabuza and Others v Commissioner
Moletsane and Others
(JR834/12) [2014] ZALCJHB 66 (14 March 2014) at para [8]
[9]
[2015] 1 BLLR 23
(LAC)
[10]
At para [15]
[11]
Para 7.1 p12 of
the founding affidavit
[12]
Clause IV of pre
arbitration minute at p72 of index bundle
[13]
Ibid
[14]
(2006) 27 ILJ 786
(LAC
[15]
Dated 28 December 2009 (p86 of the
indexed bundle)
[16]
Herholdt v Nedbank
(2013) 34 ILJ 2779 (SCA) at para [25]
[17]
At para [17]