About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2015
>>
[2015] ZALCPE 53
|
|
National Health Laboratory Services v Dubeni and Others (P373/12) [2015] ZALCPE 53 (9 September 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P 373/12
In
the matter between:
NATIONAL
HEALTH LABORATORY SERVICES
Applicant
and
NDILEKA
PATIENCE
DUBENI
First Respondent
COMMISSIONER
NALEDI BISIWE N.O
Second Respondent
COMMISSION
FOR CONCILIATION MEDIATION
&
ARBITRATION
Third Respondent
Heard:
11 November 2014
Delivered:
9 September 2015
Summary:
Errors made by an arbitrator when conducting an arbitration will not
render the award reviewable
if they have no effect on the
reasonableness of the award.
JUDGMENT
LALLIE
J
[1]
This is an application to review and set aside an arbitration award
of the second respondent who I will refer to as the commissioner
in
this judgement. It is opposed by the first respondent. The factual
background of this matter is briefly that the second respondent
was
employed by the applicant as a Human Resources Officer. Subsequent to
her dismissal on 30 June 2011, she referred an unfair
dismissal
dispute to the third respondent. In her arbitration award dated 25
June 2012, the commissioner found the first respondent’s
dismissal both procedurally and substantively unfair and ordered her
reinstatement with effect from the date of her dismissal.
In this
application the applicant seeks to have the arbitration award
reviewed and set aside. The review application, the answering
and
replying affidavits were filed late and applications for condonation
of the lateness were filed. I have considered the condonation
applications and granted them as I am satisfied that both parties
have shown good cause.
[2]
Giving reasons for her decision, the commissioner found that the
applicant did not deny having dismissed the second respondent.
It
based its decision to terminate the first respondent’s services
on her alleged application to be boarded which had been
approved by
Alexander Forbes, the applicants Health Management Consultants. The
applicant advised the first respondent in a letter
dated 26 July 2011
that her services would be terminated on 30 June 2011. The
commissioner concluded that the second respondent’s
services
were terminated without notice as at the time she received the notice
her services had already been terminated.
[3]
The commissioner found that amongst the reasons stated by the
applicant for the first respondent’s dismissal was incapacity
owing to ill-health. She noted that guidelines for dealing with
incapacity due to ill health in item 10 of schedule 8 to the Labour
Relations Act 66 of 1995 (”the LRA”) required the
applicant to have investigated all alternatives short of dismissal
including the possibility of securing alternative employment or
adapting the duties or work circumstances of the first respondent
to
accommodate her disability. The procedure includes giving the first
respondent an opportunity to state a case in response to
her
contemplated dismissal. She found that the applicant had failed to
follow the guidelines. She rejected the applicant’s
version
that Alexander Forbes provided the basis for the first respondent’s
dismissal. She did not accept that the first
respondent expressed,
through her interaction with Alexander Forbes an intention to be
boarded or have her contract of employment
terminated. The first
respondent merely applied for disability benefits from Alexander
Forbes as the applicant had granted her
sick leave without pay
because she had exhausted her sick leave pay. The commissioner found
the evidence that the first respondent
was fit to work from May 2012
unchallenged. She concluded that the first respondent’s
dismissal was both procedurally and
substantively unfair and ordered
her reinstatement with effect from May 2012. She further ordered the
applicant to pay the first
respondent an amount of R20 050. 00 minus
statutory deductions, which is equivalent to remuneration she would
have earned had she
been reinstated in May 2012.
[4]
The applicant sought to rely on a number of grounds in its attempts
to have the arbitration award reviewed and set aside. The
applicant
submitted that the commissioner committed misconduct in relation to
her duties as an arbitrator, a gross irregularity
in the conduct of
the arbitration proceedings and exceeded her powers. She disregarded
crucial evidence in reaching her decision.
The evidence includes the
information provided by the first respondent in her claim form to
Alexander Forbes and her conduct which
indicated that she did not see
herself being accommodated in any other position. By virtue of her
position, she should have made
enquiries about alternative positions
if she wanted one. Assistance granted by the first respondent when Ms
Quluba was boarded
and the explanation given by Mr Mbeleni on the
completion of forms to Alexander Forbes which confirm the first
respondent’s
wish to be boarded. She disregarded the
applicant’s evidence that it did not penalise the first
respondent by not extending
her sick leave with pay. The decision
that the first respondent’s dismissal was unfair was based on
material which was not
put to the applicant’s witness. The
commissioner drew an incorrect inference from the approval of the
first respondent’s
claim to Alexander Forbes. She incorrectly
and contrary to the provisions of the LRA implied that the applicant
was expected to
keep the first respondent’s position open
indefinitely or retain the first respondent in its employ when she
was unable to
perform her contractual obligations owing to
incapacity. The applicant further submitted that the commissioner
disregarded evidence
which favoured it. She failed to apply the
probability test as well as the cautionary rule to evidence of a
single witness. She
failed to afford the applicant a fair hearing and
reached an unreasonable decision.
[5]
In the supplementary affidavit, the applicant elaborated on some
grounds it sought to rely on in the founding affidavit. It
added
further grounds which include the submission that the first
respondent was an unreliable and untrustworthy witness whose
evidence
could not be trusted by the commissioner. The applicant expressed the
view that the only conclusion which could be drawn
from the first
respondent’s application to Alexander Forbes is that by her own
admission she was not capable of working.
It also submitted that the
first respondent accommodated the applicant and complied with its
duties in terms of the guidelines.
The first respondent’s
evidence supported the view that she was permanently incapacitated or
that she did not know when she
would recover. The applicant attacked
the award on the basis that in LRA form 7.11 the first respondent
sought compensation but
the commissioner granted her reinstatement
without the necessary evidence justifying her decision. It submitted
that the commissioner
committed a gross irregularity by not taking
into account that the first respondent requested termination of her
services owing
to incapacity. A further manifestation of the
commissioner’s misconduct in relation to her duties as an
arbitrator, so the
applicant submitted, was her failure to
acknowledge that the first respondent was paid while on extended sick
leave after exhausting
hers and had a specialist appointed to assist
her.
[6]
The first respondent opposed the application mainly on the basis that
the applicant failed to establish grounds to have the
arbitration
award reviewed and set aside. She denied having applied for the
termination of her services based on incapacity owing
to ill-health.
She submitted that the commissioner correctly found that the
applicant had failed to follow the guidelines for dismissal
on the
grounds of incapacity due to ill-health which are provided in
schedule 8 to the LRA. She denied having applied for the termination
of her contract of employment owing to ill-health and submitted that
she only applied for disability benefits for her to be remunerated
while she was unable to work. The applicant attacked the first
respondent’s defence in its replying affidavit.
[7]
Both parties were in agreement that the test for review is laid down
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
It is whether the decision reached by the commissioner is one that a
reasonable decision-maker could not reach. It is trite that
in
determining the reasonableness of an arbitration award the reviewing
court has to consider the totality of the evidence tendered
at the
arbitration. In
Goldfields
Mining SA (Pty) Ltd v CCMA and Others
[2]
,
it was held that asking the following questions assist in determining
the reasonableness of an arbitration award:
‘
(i) In terms
of his or her duty to deal with the matter with the minimum of legal
formalities, did the process that the arbitrator
employed give the
parties a full opportunity to have their say in respect of the
dispute? (ii) Did the arbitrator identify the
dispute he or she was
required to arbitrate? (This may in certain cases only become clear
after both parties have led their evidence)
(iii) Did the arbitrator
understand the nature of the dispute he or she was required to
arbitrate? (iv) Did he or she deal of the
dispute? (v) Is the
arbitrator’s decision one that another decision-maker could
reasonably have arrived at based on the evidence?’
[8]
A consideration of the totality of the evidence before the
commissioner reflects that she afforded both parties before her full
opportunity to present their cases. She identified the dispute before
her correctly as whether the first respondent’s dismissal
for
incapacity owing to ill-health was fair. For the reasons furnished
below, I am satisfied that the commissioner understood the
nature of
the dispute before her and dealt with its substantial merits. A
number of grounds the applicant sought to rely on are
not supported
by the evidence which was tendered at the arbitration. Dealing with
the substantial merits of the dispute the commissioner
correctly
found that the onus of proving the fairness of the first respondent’s
dismissal for incapacity owing to ill-health
was on the applicant.
The approach was correct, as she correctly pointed out in the award,
it is the applicant that advised the
first respondent in the letter
dated 28 July 2011 that her employment had been terminated on 30 June
2011 and that she was no longer
its employee. In determining the
fairness of the first respondent’s dismissal the commissioner
found that the applicant failed
to comply with the guidelines for
dismissal for incapacity owing to ill-health provided in schedule 8
to the LRA. No evidence was
tendered at the arbitration to prove that
the applicant had followed the guidelines. The commissioner
considered the applicant’s
submissions and expressed the view
that key to the guidelines is the employer’s duty to
investigate all alternatives short
of dismissal including the
possibility of securing alternative employment, adapting the duties
or work circumstances of the employee
to accommodate the employee’s
disability and afford the employee an opportunity to state a case.
She found that had the applicant
investigated the matter properly and
afforded the first respondent an opportunity to be heard, it might
have considered the possibility
of the applicant being able to
perform an alternative occupation. Even in the present application
the applicant only submitted
that it complied with provisions of the
LRA. It however failed to illustrate its compliance. The
commissioner’s decision
that the applicant failed to follow the
guidelines in schedule 8 to the LRA cannot be faulted.
[9]
A further ground the applicant sought to rely on was that the first
respondent requested the termination of her services as
she wanted to
be boarded because of her inability to perform her duties. The record
does not support the applicant’s allegation
that the first
respondent requested to have her services terminated. The applicant
was at pains to substantiate the allegation
and sought to have the
inference that the first respondent requested to have her services
terminated drawn from certain facts which
were presented at the
arbitration. The commissioner correctly found that the first
respondent completed a form which was an application
for disability
benefits. She gave details for concluding that by completing the form
the first respondent was not questing to have
her contract of
employment terminated. The applicant submitted that it tendered
evidence to the effect that when the insurer approved
an employee’s
disability application, that employee’s employment got
terminated. It applied the same principle in terminating
the first
respondent’s services. The commissioner gave reasons for
finding the applicant’s interpretation of the consequences
of
the completion of the application for disability benefits form. Her
finding that the applicant neither requested to have her
services
terminated nor express a wish to be boarded is not unreasonable. She
found that any advice or recommendation by Alexander
Forbes did not
preclude the applicant from complying with the schedule 8 to the LRA.
[10]
The applicant submitted that the commissioner incorrectly and
contrary to provisions of the LRA expected it to keep the first
respondent’s position vacant indefinitely. A proper reading of
the arbitration award does not support the allegation. The
commissioner found that the applicant should have followed a fair
procedure in dismissing the applicant by taking into account
the
recommendations by Alexander Forbes and the guidelines in schedule 8
to the LRA.
[11]
The commissioner considered the relief sought by the applicant. The
first respondent correctly pointed out that the referral
form does
not constitute pleadings. Seeking compensation as relief in the
referral form did not prevent her from seeking reinstatement
at
arbitration. The commissioner’s decision to reinstate the first
respondent is based on the evidence before her. A reading
of the
award reflects that she considered the issue and based her decision
on the relevant authority.
[12]
The applicant sought to rely on errors the commissioner made in
reaching her decision. Amongst the errors is the commissioner’s
finding that the applicant penalised the first respondent by granting
a portion of her sick leave without pay. It further submitted
that
she committed misconduct in the manner in which she dealt with
evidence. The applicant, however, failed to establish that
the errors
led the commissioner to reach an unreasonable decision. I am
satisfied that the commissioner considered the principal
issue before
her, evaluated the facts presented and reached a reasonable decision.
The application for review can therefore not
succeed.
[13]
The first respondent sought a costs order against the applicant. The
applicant acted unreasonably in proceeding with this application
when
it is abundantly clear that no valid grounds existed to have the
arbitration award reviewed and set aside. The first respondent
should
therefore not be out of pocket for opposing the application.
[14] In the
premises the following order is made:
14.1
The application for review is dismissed with costs.
_______________________________
Lallie J
Judge of the Labour Court
of South Africa
APPEARANCES
For the Applicant:
Advocate Ram
Instructed by:
Shepstone & Wylie
For the First
Respondent:
Advocate Thys
Instructed
by:
JA Gordon & Associates
[1]
[2007] 12 BLLR
1097 (CC)
[2]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)