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[2015] ZALCPE 43
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Umicore Catalyst SA (Pty) Ltd v Nogantshi and Others (PR89/14) [2015] ZALCPE 43 (11 August 2015)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
C
ase
no: pr 89/14
In
the matter between:
UMICORE CATALYST SA
(PTY) LTD
Applicant
and
M D NOGANTSHI
First Respondent
CEPPWAWU
Second Respondent
Commissioner
SIYABONGI COKILE
Third Respondent
motor industry
bargaining council
Fourth Respondent
Heard
:
4 August 2015
Delivered
:
11 August 2015
Summary:
Review – misconduct – alleged
misrepresentation of doctor’s visit.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The first respondent, Mr Mzuvukile
Noganthsi, went to the doctor on either Friday 31 May or Monday 3
June 2013. He was meant to
work nightshift from 22:00 on Friday 31
May. He did not. He explained that he had to take his son, Lineo, to
the doctor on Friday
afternoon; that he then had to look after his
son, who stayed with him that night (his mother living elsewhere);
and he asked for
and was granted “childcare leave”
accordingly.
[2]
Subsequently, the employer (the applicant)
found out that the medical certificate issued by the doctor, Dr
Pakiwe, reflected the
employee, and not his son, as the patient. The
company dismissed the employee for fraudulent misrepresentation.
[3]
The
employee referred an unfair dismissal dispute to the Motor Industry
Bargaining Council (the fourth respondent). Conciliation
failed. The
arbitrator (the third respondent) found that the dismissal was unfair
and ordered the company to reinstate the employee.
The company seeks
to have that award reviewed and set aside in terms of s 145 of the
LRA.
[1]
The
award
[4]
The arbitrator took into account the
evidence of Mr Rosco Frost, the production superintendent; Ms Tanya
Stevens, the payroll administrator;
the chairperson of the
disciplinary hearing, Mr Greg Clack; and Dr Sydney Patiwe, all of
whom were called as witnesses for the
company. The employee testified
and did not call any witnesses.
[5]
The
arbitrator correctly pointed out that, where he is faced with two
irreconcilable versions, he had to make findings on the credibility
of those witnesses; their reliability; and the probabilities.
[2]
[6]
The arbitrator found Mr Frost and Ms
Stevens to be credible and reliable witnesses. Having regard to their
evidence, as well as
that of the employee, it is common cause that,
when confronted with the medical certificate naming him as the
patient, the employee
suggested that Ms Stevens phone Dr Patiwe. She
did so on 22 July 2013. According to her, Dr Patiwe told her that he
saw the employee
on 31 May and diagnosed him with gastro-enteritis
and an upper respiratory tract infection (URTI).Dr Patiwe, on the
other hand,
did not mention URTI in his affidavit of 31 October 2013;
neither does that diagnosis appear on the medical certificate that he
issued.
[7]
The arbitrator was also impressed by the
employee as a credible witness. The same could not be said for Dr
Patiwe. And, as the arbitrator
correctly pointed out, the crux of the
dispute “depends on the evidence of Dr Patiwe and the employee,
who are the only two
people who know exactly what happened between 31
May and 3 June 2013”. The arbitrator noted that Dr Patiwe
initially deposed
to an affidavit on oath on 31 October 2013 in which
he stated that he had consulted with the employee on 31 May 2013 and
diagnosed
gastro-enteritis. But in his evidence under oath at the
arbitration hearing he said that he saw the patient late afternoon on
3
May 2013 and that the latter “begged him” to backdate
the medical certificate to 31 May, which he did. The arbitrator
found
that highly unlikely, as the employee worked from 14:00 to 22:00 on
Monday 3 June. Dr Patiwe also could not explain why his
administrator
would have submitted a medical aid claim for the son, Lineo, other
than claiming it was “an administrative
error”. And Dr
Patiwe testified that he last saw Lineo on 17 August 2012; yet, when
confronted under cross-examination with
a medical certificate for 26
March 2013, he conceded that he did see Lineo on that date. Yet he
could not produce any clinical
notes for the day. Having regard to
all these discrepancies, the arbitrator noted that the administration
in Dr Patiwe’s
surgery “leaves much to be desired”
and that it was highly likely that he had made an error by issuing a
medical certificate
that he had examined the employee and not his
son.
[8]
The arbitrator preferred the evidence of
the employee whose testimony was consistent throughout and whom he
found to be a credible
witness. The evidence of Dr Patiwe was
insufficient to show on a balance of probabilities that the employer
had proved the misconduct
complained of. It is so that the employee
had nearly exhausted his sick leave, but he had not done so yet,
contrary to the employer’s
claim. The employee’s
unchallenged evidence was that his son had a history of a “runny
tummy”, probably diagnosed
as gastro-enteritis by Dr Patiwe in
respect of the son, Lineo, and not the employee. Taken together with
the fact that the administrator
at Dr Patiwe’s practice
submitted a claim to medical aid for Lineo, the probabilities are
that Lineo was the patient.
[9]
Against this background, the arbitrator
found the dismissal to be unfair and ordered the company to reinstate
Mr Noganthsi.
Evaluation
/ Analysis
[10]
The central issue is whether the employee
did take his child to the doctor; or whether the doctor only saw him,
Mzuvukile, as a
patient, be it on 31 May or 3 June.
[11]
The only witnesses who gave evidence at
arbitration and who could shed light on the events as being present
at the doctor’s
rooms were the employee and the doctor.
[12]
Dr Pakiwe was not a star witness. Even
though he had seen the son, Lineo, on numerous occasions, he was
adamant that the last time
was in August 2012; yet he had to concede
under cross-examination that he also saw him in March 2013. He
referred to the son as
“the baby”, seemingly unaware that
Lineo was 11 years old. He could not explain why his own
administrator would have
submitted a claim to medical aid for Lineo
on 4 June 2013, ascribing it simply to “an administrative
error” and maintaining
that he had seen only the father the
previous day, Monday 3 June 2013. Yet he testified that he was
involved in the process for
submitting medical aid claims: “Ja,
what’s happening is that the patient signs on the form né,
and then we write
the same date that is there. That I do myself and
then it is sent to the medical aid by e-mail.” And that
evidence under
oath at arbitration contradicted his earlier evidence
under oath on affidavit that he had seen Mzuvukile on Friday 31 May
2013.
[13]
The employee’s evidence, on the other
hand, although at times somewhat argumentative, was consistent
throughout. Lineo fell
ill at school on Friday 31 May. He took him to
Dr Pakiwe that same afternoon. Lineo insisted on spending the night
with him as
he was not feeling well. That is why he couldn’t go
to work on the night shift at 22:00. He did go to work on Monday 3
June,
when he was working 14:00 – 22:00.
[14]
It is common cause that the employee did
indeed work 14:00 – 22:00 on Monday 3 June. That puts pay to Dr
Pakiwe’s testimony,
who was adamant (in the arbitration,
contrary to his earlier affidavit) that he saw the employee on the
afternoon of Monday 3 June
and that the employee asked him to
backdate the medical certificate to Friday 31 May.
Conclusion
[15]
The arbitrator applied his mind to the
evidence before him. He carefully analysed the witnesses’
credibility, their reliability,
the probabilities, and the onus. He
came to the conclusion that the employee’s evidence was more
reliable than that of Dr
Pakiwe. That was a reasonable conclusion. It
is not open to review.
Costs
[16]
With regard to costs, I take into account
that the employee has been reinstated and that the parties will have
to forge a new relationship.
I also take into account that there is
an ongoing relationship between the company and the second
respondent, CEPPWAWU. And lastly,
the employee has been assisted by
his trade union and did not have to incur legal costs personally. In
these circumstances, I do
not consider a costs order to be
appropriate in law or fairness.
Order
The
application for review is dismissed.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
John
Grogan
Instructed
by Joubert Galpin Searle.
FIRST
and SECOND RESPONDENTS:
Grant
Doble of Cheadle Thompson & Haysom.
[1]
Labour Relations Act 66 of 1995
.
[2]
Stellenbosch
Farmers Winery v Martell et cie
2003
(1) SA 11
(SCA).