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[2015] ZALCCT 12
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Bidvest Data (Pty) Ltd v Statutory Council, Printing Newspaper And Packaging Industry and Others (C932/2013) [2015] ZALCCT 12 (5 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C932/2013
DATE:
05 FEBRUARY 2015
Not
Reportable
In the matter
between:
BIDVEST DATA
(PTY)
LTD
.....................................................................
Applicant
And
STATUTORY
COUNCIL, PRINTING,
NEWSPAPER &
PACKAGING INDUSTRY
...............................
First
Respondent
G. McEWAN
N.O
.........................................................................
Second
Respondent
MBUYISELO
MASITO
.................................................................
Third
Respondent
Date heard: 17
September 2014
Delivered: 5
February 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an award under case number
PNPI 1715, which was handed down on the 18 November 2013
by the
second respondent (the arbitrator). The applicant company seeks that
the award be reviewed and set aside and substituted
by a finding that
the dismissal of the third respondent (Masito) was procedurally and
substantively fair. In terms of the award,
Masito was reinstated
after a finding that his dismissal was both procedurally and
substantively unfair.
[2]
The dispute has a long history. It has been twice heard under the
auspices of the first respondent (the Council). This court
reviewed
the first award under case number C887/2011 and remitted it to the
Council.
[3]
Masito was dismissed for incapacity arising from ill health due to
his diabetes. He was employed as a laser operator in the
laser
printing department of T – Systems, a company that provided
printing services to Woolworths (Pty) Ltd. In July 2010
his contract
of employment was transferred to the applicant when it took over the
Woolworth’s printing account.
[4]
Masito was 50 years old at the time of his dismissal and suffers from
type1 diabetes. In terms of his employment contract with
applicant,
he was required to work a “continental shift system”.
This was a three-week shift system comprising shifts
of 11.5 hours
with the following rotation:
4.1 week one:
Friday, Saturday and Sunday ( 07:00 – 18:30).
4.2 week two:
Monday – Thursday day shift (07:00 – 18:30).
4.3 week three:
Monday – Thursday night shift (19:00 – 06:30).
4.4 week four:
Friday – Thursday: seven days off duty.
[5] Masito
started encountering problems with the nightshift due to his diabetes
and took an excessive amount of sick leave. In
his first 10 months of
employment with the applicant, he took 220 hours of sick leave out of
his total sick leave entitlement of
240 hours for a 36 month period.
[6] Applicant’s
industrial relations manager, Belinda Meuldijk, held eight meetings
relating to incapacity (ill-health) with
Masito in the period from
March to June 2010 and after looking at alternatives to Masito
working nightshift, the applicant came
to the conclusion that they
could not accommodate him and dismissed him.
[7] The
arbitrator, on the basis that Masito’s dismissal was related to
his Type I diabetes, called an expert witness, Prof
Francois Bonnici
(Bonnici). The applicant submits that the award stands to be reviewed
as the evidence of this expert witness relied
on by the arbitrator
was partially off the record and partially on the record. Further,
that the evidence was of a general nature
and that little if any
weight should properly have been attached to such evidence by the
arbitrator. Of particular concern to it,
is the arbitrator’s
summary of Bonnici’s evidence on page 27 of the award. The 24
lines of the award, summarising his
evidence are in fact a verbatim
copy of findings in this court in a judgment by Murphy, AJ (as he
then was) in his judgment in
Independent Municipal Trade &
Allied Workers Union & another v City of Cape Town (2005) 26 ILJ
1404 (LC)
a case that was never referred to during the hearing.
Bonnici had been an expert witness in that case.
[8] It is
submitted by the applicant that the facts in the
City of Cape Town
case are not at all similar to those of the matter before the
arbitrator, and neither was the nature of the evidence which Bonnici
provided in the two matters. It notes that in the
City of Cape
Town
case, Bonnici was testifying in relation to his actual
experience treating an otherwise very fit diabetic firefighter, who
was
only 31 years of age at the time, and he had treated for some 20
years. In this case Masito was never treated by Bonnici and the
applicant submits as such that none of his evidence was specifically
relevant to Masito’s case.
[9] It is further
submitted by the applicant that the arbitrator’s decision to
include a fourth issue in dispute in the proceedings,
namely whether
the company did enough to investigate the incapacity of Masito at the
time, constitutes a reviewable irregularity.
This was after three
issues in dispute had already been agreed to by all the parties at
the start of the hearing of the matter.
[10] The
applicant also submits that the award stands to be reviewed because
the arbitrator failed to apply her mind to the evidence.
The award
states that: “The entire incapacity process was based on a
false premise that the cause for the excessive sick
leave taken by
Masito was due to his diabetes.” The award then goes on to
record that because the reasons provided for his
ill-health in
relation to his absences during 2010 where apparently all due to
issues other than diabetes or hypertension, the
ill-health incapacity
process was inherently flawed from the start.
[11] The
applicant argues that the award therefore overlooks the fact that the
ill-health which Masito suffered and which was the
reason for his
absences was caused by or related to his type I diabetes. All the
medical practitioners involved in the case, who
gave evidence
confirmed that his apparent inability to work night shifts stemmed
from precisely his diabetes.
[12] The
applicant also takes issue with the arbitrator’s statement that
it would be possible for Masito to return to work
immediately if
reinstated and that the evidence showed this would not be a problem.
[13] The grounds
of review also include what are referred to as “mistakes of
law”. These are:
13.1
First, that the award suggests it was an obligation of the company to
provide actual medical treatment to its employee rather
than have him
assessed and then rely on the expert opinion of its assessing
physician Dr West.
13.2
Second, that it is suggested by the arbitrator that the company
should be held liable for wrong/incomplete expert advice, which
it
received and on which it relied.
13.3
Thirdly, that that the award states that “it is always
ill-advised for a single person to do the investigation, seek
alternatives, make reasonable accommodation and to dismiss, all of
which Meuldijk in this instance attempted to do…”
It is
submitted on behalf of the company that the arbitrator’s
statement likened the inquisitorial approach of the ill-health
incapacity investigation, to a disciplinary scenario, which was not
appropriate.
13.4
Finally, it is submitted that the arbitrator’s suggestion that
the applicant should look at whether there was a suitable
alternative
position at its holding company was wrong in law in that this is not
what is meant by the reasonable accommodation
of an employee in the
circumstances.
Evaluation
[14] I should
state the outset of evaluating the review application in this matter,
that the heads of argument for the applicant
are 77 pages long, and
for the third respondent some 49 pages. In addition to this, I was
provided with two full lever arch files
of authorities comprising
some 831 pages by the applicant. An avalanche of such paper is really
of no assistance to the court.
What I shall attempt to do in the
midst of the reams of information at my disposal, is to focus on the
essential questions to be
considered in a review application such as
this.
[15] First I must
comment on the way in which the arbitrator has relied on the expert
evidence of Prof Bonninci. I have had regard
to the
City
of Cape Town
case
referred to by the applicant in which the professor gave expert
evidence and agree that certain passages from the judgment
of Murphy,
AJ (as he then was) are taken verbatim from that judgment, with no
indication being given as to such reliance. Of particular
concern, is
the fact that the arbitrator evaluates the evidence of the other
medical witnesses in her arbitration using precisely
the same words
as those used in that judgment, but merely changing the names of the
doctors
[1]
. I also agree with
the submissions of the applicant that the fact that the professor had
not treated Masito or examined him, but
was merely privy to the
various medical reports contained in the bundle of documents, appears
not to have weighed with the arbitrator.
[16] In fact, the
evidence given by Prof Bonnici at this arbitration was short in
duration. The gravamen of such evidence is really
encapsulated by his
view that primary health care facilities could not give Masito the
necessary education and tools to control
his blood sugar levels.
Further, that he deserved to be referred to a tertiary care clinic
and at these clinics: “they have
access to different insulin
analogues, long acting, flat, short acting and that they could
educate Mr Masito on a new regime that
might be able to avoid high
swings.”
[17] I also noted
that the Professor’s view on the fact that night shifts can
cause havoc to the management of type 1 diabetes
if the patient is
not appropriately counselled and treated. In as far as the reasons
for Masito’s absences for the past two
years and whether they
were related to diabetes are concerned, the record reflects the
following:
‘
COMMISSIONER:
I think the question that is being asked, is that how many of the
absences that you recorded were unrelated to the
type 1 diabetes?
MR ELLIS: We
can’t express a view on that.
PROF BONNICI; No,
no, no.
MR
ELLIS: A doctor can only – a doctor will tell us a person is
sick or not sick. So …(intervention)
PROF
BONNICI: Ja. I mean there’s something and I read – I mean
it says acute diarrhoea, the other one says, (indistinct)
respiratory
tract infections. The other one says gastro. The other one says back
injury. The other one says nothing. The other
one says abscess. The
other one says, I can’t read – influenza. The other one –
so you know, I mean that’s
all I’ve got as as a reason
for …(intervention)……….
PROF
BONNICI: ………..I’m a bit unhappy with the
reasons of the leave, because very few of these leave record
mention
inability to work shifts or erratic blood sugars and they all have a
medical reason for the leave…..”
[18] From the
above, the arbitrator found that:
“
Bonnici
having examined the medical certificates confirmed that none of the
sick leave which gave rise to the incapacity meetings
is diabetic
specific related.”
She also found
that:
“
Masito
was taking sick leave but not related to him being a type one
diabetic – which is the reason for his ultimate dismissal
which
is inherently unfair.”
[19] Masito
himself gave evidence regarding his health at the proceedings and in
particular the sick leave he took, while being
examined in chief. He
stated:
“
The sick
leaves most of the time were caused by the way I eat, the way not
doing enough, the shift does not allow me to do some
exercising,
because I don’t get time to do other things that I need to do
as a diabetic.”
[20] Under
cross-examination, the issue of poor self-management was also raised:
“
MR
ELLIS: Mr Masito, would you agree with me that your medical condition
is your responsibility?
MR MASITO: Yes
MR
ELLIS: And is that something that the employer ever said to you in
the process? When I say employer, I’m talking about
Shaun
Abrams, Ms Meuldijk and the like.
MR
MASITO: Ms Meuldijk did say that and they said that we will work with
you to help you.
MR ELLIS: So if
it is your responsibility, what do you think that means?
MR MASITO: It
means that I must take charge.
MR
ELLIS: Yes. Now at the time some of the issues that were raised were
lifestyle issues, that you were not eating right. I think
you said
sugary stuff is not the problem, it is the fatty stuff that is the
problems that correct? In those discussions with Ms
Meuldijk and Mr
Abrams.
MR MASITO: Yes.
MR
ELLIS: It is recorded in one of the minutes, you stated that the
sugary stuff is nor the problem, page 171, it is really the
fatty
foods “that are too tempting for me”.
MR MASITO: Yes”
[21] Over and
above her understanding and treatment of the evidence of Bonnici, the
arbitrator appears to have painted a picture
of Masito that was not
realistic and could be described as stereotyped. She comments that:
“
Masito
is a black male and as Bonnici testified was trapped in the primary
health care offered by the state.”
[21] A
consideration of the evidence given by Masito himself who was
employed in a skilled position, paints a different picture.
When
describing Dr Rhoda his family doctor who had been treating him for
many years (who was not called upon to testify, he stated):
“
MR
MASITO: He was treating me for the …it was like attending the
diabetic clinic. I was attending it direct to him, because
I had
medical aid, better off than going to the clinic.
MR ELLIS: Yes
MR
MASITO: and the monitoring of how much you need to take and all that,
what tablets to take and all that.
MR ELLIS: Yes but
at this stage your doctor says there, if I can read:
“
Problem:
recent poor diabetic control largely due to lack of exercise and
suboptimal diet.”
[22] It would
appear from the record that the attendance at the primary health
clinic by Masito was in fact after he was dismissed
and not during
the course of his employment when he had medical aid. It is
essentially on the basis of her understanding of the
testimony of
Bonnici that the arbitrator came to her decision on the reinstatement
of Masito. It is illuminating to refer to the
final paragraph in her
award in this regard, which reads, inter alia:
“
Masito
seeks retrospective reinstatement with full back pay. Whilst it was
recommended that he only work day shift, the evidence
of Bonnici was
that it is highly probable that Masito on the correct insulin and
education would be able to manage all shifts,
as he has done over
many years. The incapacity process and the reasons for the sick leave
taken are not related to diabetes. The
employment relationship is
intact and I find no reason not to retrospectively reinstate Masito
with effect from 1 December 2013.”
[23] Given the
evidence before her and her treatment of it, I find that the
arbitrator’s remedy in view of a finding of a
substantively
unfair dismissal was not reasonable. Her understanding of the
evidence given by Bonnici was deeply flawed as was
her reliance on
his evidence to decide that Masito could now work the night shift,
given that Bonnici had never examined Masito.
This must mean that the
reinstatement order stands to be set aside. The issue that I must now
deal with is whether the arbitrator’s
finding that the
dismissal was substantively unfair is susceptible to review.
[24] Key to
assessing her finding on procedural and substantive fairness is a
consideration of the issue of ‘reasonable accommodation’.
In
Standard
Bank of SA v Commission for Conciliation, Mediation & Arbitration
& others
[2]
the
court per Pillay J considered what is required from an employer in an
incapacity case as follows:
“
[70]
As an employer bears the onus of proving an employee's incapacity to
justify dismissing her, the LRA guidelines for incapacity
dismissal
contemplates a four-stage enquiry before an employer effects a fair
dismissal…..
[71]
An enquiry to justify an incapacity dismissal may take a few days or
years, depending mainly on the prognosis for the employee's
recovery,
whether any adjustments work and whether accommodating the employee
becomes an unjustified hardship for the employer.
To justify
incapacity, the employer has to 'investigate the extent of the
incapacity or the injury ... (d) ... all the possible
alternatives
short of dismissal'.
[72]
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 end of the enquiry; the employer must restore
her to her former position or one substantially
similar to it. Where
possible, the job should correspond to the employee's own choice and
take account of her individual suitability
for it. If the employee is
unable to perform her work and her injuries are long term or
permanent, then the next three stages follow.
[73]
Stage two: The employer must enquire into 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.
[74]
Stage three: The employer must enquire into the extent to which it
can adapt the employee's work circumstances to accommodate
the
disability. 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.
[75]
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 and of the illness or injury and the possibility
of
securing a temporary replacement' for the employee.
[76]
Stage four: If no adaptation is possible, the employer must enquire
if any suitable work is available.”
[25] The
arbitrator considered reasonable accommodation in her award recording
that a number of alternatives were considered by
the company. It was
thought that Masito should be placed only on day shifts as
recommended by the company’s occupational
health physician, Dr
West. A notice went out calling for volunteers to swap the nightshift
with him, with an increase of 5% in
the shift allowance to compensate
for the extra week worked on the nightshift. There were only three
volunteers – Ford, Fortuin
and Zaheer. Despite this being a
temporary arrangement, Ford was discounted due to being a trainee;
Fortuin had his own health
problems and Zaheer having come from
Woolworths was ‘perfect’. He did not arrive for his first
night on the shift for
Masito and was thereafter also disregarded. It
was never specifically mentioned that such a volunteer may get the
full shift allowance
nor was this avenue pursued. The arbitrator
agreed with Masito when he said the employer did not do enough in
this regard. She
states in the award:
“
Masito
could also have been given the opportunity to ask his colleagues
himself, which may have produced a different outcome. The
cross-training of operators is pertinent at this point, as had more
operators been trained on different machines, then the pool
of
possible operators would in logic have been bigger. It was abandoned
too quickly after Zaheer was absent on the first swap shift.
This was
after all a temporary measure to see what could be done and never
fully tried.
Another
alternative considered was to place Masito in a position which did
not require him to work nights. This, too, in my view,
was not
appropriately handled. No one seeks a reduction in their salary. But
when faced with accept a Rand amount or dismissal,
I am confident
that most would accept the Rand amount in these tough economic and
jobless times. No specific position was ever
mentioned to Masito nor
was what he would be earning in that position specified in order for
Masito to come to a reasonable decision.
It is unacceptable for
Meuldjik to have brushed this aside and said apply for any of the
vacancies advertised by email. It was
incumbent on her, especially
given the long service of Masito to have assisted in the process and
gone through all the jobs. In
her testimony Meuldjiik conceded that
had she gone through the company, job by job, she would probably have
been able to come up
with a position for Masito. The holding company
Bid West group was never approached to see if they had pursued even
if this was
not the usual practice……”
[26] A look at
the record does not reveal the concession by Meuldjik that she would
have probably have come up with a position.
What the record reflects
is that while Meuldjik agreed that there may have been administrative
positions that Masito was qualified
for if every position in the
company was considered, there were no vacancies. What does emerge
from the cross-examination of Meuldijk
however, are two pertinent
issues as follows:
26.1
The issue of Masito working shorter hours on the night shift, by not
working overtime, was on the table during consultations
in particular
at the second and third meeting. Masito preferred the option of only
working day shift but did not reject the option
of shorter hours.
Abrahams, supervisor of Masito said he was prepared to try this on a
trial basis as a last resort. Meuldijk concedes
that this was never
put into practice on a trial basis and that it was never taken off
the table by Masito or Abrahams. Her explanation
that this was
because she did not believe he could work nights shift was belied by
the fact that Masito was put back on night shifts
proper as a last
chance, before his dismissal.
26.2
Despite the long service of Masito (he was first employed by previous
owners of the company in 1998), by the second meeting
on 25 March
2011 he was informed of the possibility of his dismissal. The
incapacity process was just short of three months. Meuldijk
testified
that it is probably the culture of the company not to dilly dally and
that:
“
Probably
I wanted to get things as much done as possible before the next night
shift loomed. So ja, that’s all I can say on
that. And it is
driven by concern, concern for Mr Masito as well as
…….(intervention).”
[27] Taking the
approach set out in the case of
Fidelity
Cash Management Service v Commission for Conciliation, Mediation &
Arbitration & others
[3]
the above issues are the reasons (albeit not the same as those
highlighted by the arbitrator) that I find sustain her decision
that
the dismissal of Masito was unfair. The company did not
adequately explore the alternatives and/or suitable adaptation
to the
full night shift, and the inference can be drawn that this was due to
the “no dilly dallying” attitude taken
by the company.
Such renders the decision on procedural and substantive nature of the
dismissal reasonable.
[28] I note that
applicant’s heads of argument were written before the SCA
Herholdt
[4]
judgment. This review is considered in light of that judgment and the
LAC
Goldfields
[5]
matter. I have found the decision in respect of the procedural and
substantive unfairness of the dismissal to be within the bounds
of
reasonableness, while the remedy of reinstatement stands to be
substituted for the reasons stated above. I do not consider the
issues raised by the applicant as ‘mistakes of law’ by
the arbitrator to be of the nature of latent gross irregularities
as
understood in our law
[6]
. The
review ground relating to the commissioner’s decision to allow
for a further issue in dispute is also without merit
given the
provisions of section 138 of the LRA.
[29] It is in the
interests of justice, given the full record before me, and the
history of this matter, that I should substitute
the award of the
arbitrator and not remit the matter back for a third time. I have
already stated that the basis for the reinstatement
order by the
Commissioner is not sustainable and it stands to be set aside. In
such circumstances, and given there is no evidence
before me that it
would be reasonably practical for Masito to be reinstated into the
position he was in, I consider that compensation
will be the
appropriate remedy for his unfair dismissal.
[30] Given that
the finding on procedural and substantive unfairness of the
dismissal is upheld (albeit for reasons other
than those highlighted
by the arbitrator) and that it is only the remedy that must be
substituted, I see no reason why costs should
not follow the result.
I therefore make the following order:
Order:
1. Paragraph 43
of the arbitration award under case number PNPI1715 is set
aside and substituted as follows:
“
a.
The dismissal of Mbuyiselo Masito was procedurally and substantively
unfair.
b.
Bidvest Data Pty Ltd is ordered to pay Mbuyiselo Masito an amount
equal to 12 months’ salary as compensation being an amount
of
R18 843.00 X 12 = R 226 116.00. ”
2. The payment of
compensation must be made within 20 days of this order.
3. The applicant
is to pay the costs of this application.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
Edwin Ellis of ENS
Third
Respondent: Adv. A Aggenbach instructed by D. Butlion Attorneys
[1]
Independent Municipal & Allied Workers Union & another v
City of Cape Town (2005) 26 ILJ 1404 (LC) at paragraph 31
[2]
(2008) 29 ILJ 1239 (LC)
[3]
(2008) 29 ILJ 964 (LAC) at paragraph 102
[4]
Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus
Curiae)
2013 (6) SA 224
(SCA); (2013) 34 ILJ 2795 (SCA)
[5]
Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others (2014)
35 ILJ
943 (LAC)
[6]
See Herholdt supra at paragraph 21