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[2016] ZALCJHB 60
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Steenwerke v Bobbejaan NO and Others (JR923/2013) [2016] ZALCJHB 60 (22 February 2016)
REPUBLIC
OF SOUTH AFRICA OF SOUTH AFRICA
JOHANNESBURG
Not reportable
Case no: JR 923 /2013
In
the matter between:
DANIELSKUIL
STEENWERKE
Applicant
and
DAVID
BOBBEJAAN N.O
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
VINCENT
MOSALAESI
Third
Respondent
Heard:
27 January 2016
Delivered:
22 February 2016
Summary: Review application.
Arbitrator failed to consider factors he was required to and ignored
relevant and material evidence.
Award is reviewed and set aside.
JUDGMENT
PRINSLOO J.
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award issued on 6 May 2013 wherein the First
Respondent (the arbitrator)
found the Applicant’s dismissal
procedurally and substantively unfair and ordered the Applicant to
re-instate the Third Respondent
(the employee) retrospectively.
[2]
The Third Respondent opposed the
application.
[3]
The
employee also filed an application in terms of the provisions of
section 158(1)(c) of the the Labour Relations Act
[1]
(the Act) for the arbitration award issued on 6 May 2013 to be
made an order of Court.
[4]
I will first deal with the application for
review. If the application for review succeeds, there will be no need
to consider the
section 158(1)(c) application.
Background facts
[5]
The background facts are herewith
summarised as follows:
[6]
In February 2008 the employee was employed
as a plant operator. In November 2012 he was dismissed for reasons
related to ill health
after an incapacity inquiry was held.
[7]
The employee subsequently referred an
unfair dismissal dispute to the Second Respondent (CCMA). The issue
that was to be decided
was whether the employee’s dismissal for
health reasons was substantively and procedurally unfair.
[8]
The employee did not dispute the fact that
he was incapacitated, but disputed that the Applicant accommodated
him as he was suffering
from tuberculosis (TB) which is a curable
disease. It was alleged that the Applicant has failed to explore the
possibility of putting
the employee on unpaid leave to allow him an
opportunity to recover as he was not permanently disabled.
The arbitration proceedings:
[9]
Ms Barrington, the Applicant’s human
resources officer testified that the employee was dismissed because
he was medically
unfit for duty. The Applicant referred the employee
for medical examination by certain doctors and he was declared unfit
for duty.
Ms Barrington testified to the employee’s sick leave
record and showed that the employee was sick from 8 – 13
January
2011, 14 – 19 January 2011, 31 January – 28
February 2011, 1 – 31 March 2011. During this period the
employee
submitted a letter to state that he was receiving treatment
for TB, that his left lung was not well, it was uncertain what the
response to the treatment would be and that he was not fit for duty.
During 2012 the employee was also booked off on sick leave
on a
number of occasions, including 26 – 30 September 2012 and 1 –
15 October 2012 when it was indicated that he was
on treatment for TB
and could not work in a dusty area until the treatment was done as
the condition of his lungs would deteriorate.
The Applicant’s
testimony was that in 2012, the employee took 24 days sick leave and
his sick leave was completely depleted.
[10]
The employee submitted a sick note stating
that he could work but not in a dusty area. Ms Barrington testified
that the Applicant’s
business is to collect rocks from the
Danielskuil Mine and to put the rocks in a crusher where after it is
sorted according to
size. She explained that the entire workplace is
full of dust due to the nature of the Applicant’s operations
and if the
employee required a dust free area, the Applicant’s
workplace was not suitable as it is very dusty. Ms Barrington
testified
that it was impossible to find an alternative position for
the employee as the entire workplace was dusty and he could not work
in dust. The Applicant considered as alternatives the possibility to
move the employee from outside to inside or to utilise him
at the bag
plant but all those alternatives were not feasible as there was dust
everywhere.
[11]
Ms Barrington explained that the Applicant
has different contracts in place and is required in terms of those
contracts to deliver
a certain amount of sand and stones per day. If
the Applicant does not deliver according to the terms of the
contracts, it could
lose the contracts and that may result in
retrenchment of employees. The employee’s absence had a
negative impact on production
because the Applicant had to hire a
replacement worker at an additional cost and production is slower as
the replacement worker
must first be trained.
[12]
After the employee was sent for medical
examination and a report was received declaring him permanently unfit
for duty, an incapacity
inquiry was scheduled for 28 November 2012.
The purpose of the inquiry was to ascertain whether the employee
could still perform
his duties. The employee did not bring any proof
or evidence that he was indeed fit for duty and the Applicant’s
case is
that he could not work as he was sick and the dust was not
good for his lungs. Ms Barrington testified that at the incapacity
inquiry
the employee made no suggestions regarding alternatives on
how he could be accommodated.
[13]
The Applicant also called Ms Coetzee to
testify. She is a qualified occupational health nursing practitioner.
She examined the employee
and found him unfit to work in a dusty
environment due to his lung functions.
[14]
Ms Coetzee described all the tests
performed on the employee and that included a lung function test, an
audiogram and a physical
ability test. The physical ability test
could not be performed due to the employee’s poor physical
condition. He could not
breathe well enough to do the lung function
test and he was given a bronchodilator but even with that, he
experienced severe restrictions.
The damage to the employee’s
lungs could not improve significantly and to an extent that he would
be able to work in a dusty
environment again.
[15]
Ms Coetzee testified about the medical
report that was compiled in respect of the employee’s ill
health and fitness to perform
normal duties for which he was
employed. She testified that the employee was permanently unfit to
perform the duties he was appointed
for in a dusty workplace. Ms
Coetzee explained that a medical doctor would consider the results of
the tests that were done and
the examination by the occupational
health practitioners and the team of medical personnel and would
examine the chest x-rays and
lung function test and based on that the
doctor will make a decision to declare the patient fit or unfit for
duty.
[16]
Ms Coetzee conceded that only a qualified
medical doctor could declare a person unfit for work and that she did
not have the capacity
to declare a person unfit for duty. Ms Coetzee
signed the medical report and her explanation was that the medical
doctor was away
on the day the report was required and that is why
she signed it. She made it clear that she did not declare the
employee unfit
for work, she merely signed the report. The doctor
declared the employee unfit for work did that and that was confirmed
in the
patient file where the doctor indeed signed and confirmed the
employee unfit for duty.
[17]
Ms Coetzee testified that the employee
could never again work in a dusty environment as he already has a
decreased capacity to breathe
and even a dust mask would not be
enough to protect him because he was going to take the mask off to
breath and that will have
a huge effect on him.
[18]
The last witness for the Applicant was Mr
Koegelenberg, who conducted the incapacity inquiry. He explained the
process that was
followed and testified that the Applicant was asked
about alternative work or positions but indicated that there was none
as the
employee could not work in a dusty environment and the entire
workplace has dust. The employee and his representative were also
asked about alternatives but they provided none. They also did not
provide any medical reports to rebut the Applicant’s version
on
the employee’s incapacity. Mr. Koegelenberg testified that he
took a decision based on the evidence and the information
that was
made available to him during the incapacity inquiry.
[19]
The employee testified and the very first
question he had to respond to was what transpired that led to his
dismissal. The employee’s
response was “
It
is because I was not always at work. I was most of the time, I’m
sick.”
The employee testified
that the Applicant informed him that he could no longer work for the
Applicant as he is sick and cannot work
in a dusty environment.
[20]
The employee testified that Mr Koegelenberg
never asked him for alternatives and if he were asked, he would have
looked for a place
that was not dusty and if there was no such
alternative available, he would have asked the Applicant for unpaid
leave until he
was fully recovered and ready to work
[21]
In respect of the medical tests and
examination, the employee confirmed that he was sent for tests at the
medical centre and that
they did all the tests and took x-rays, as
per the medical report that he had seen. He confirmed that he could
not do push-ups
and weights and that he was still receiving TB
treatment. He was in the last month of his treatment.
[22]
The employee conceded that at the time of
the incapacity inquiry he was unable to work and he conceded that he
did not tell Mr Koegelenberg
that he was on treatment and would be
ill for only six months. The employee also testified that in 2010 he
was suffering from TB
and he stayed at home and only came back to
work after his treatment was completed. He was once again suffering
from TB.
[23]
A perusal of the transcribed record shows
that although the fact that Ms Coetzee could not declare the employee
unfit for duty was
challenged, her testimony on the medical condition
of the employee was never challenged. The testimony that the employee
could
not work in a dusty environment was not challenged and it was
not disputed that the Applicant’s workplace is dusty.
Analysis of the arbitrator’s
findings and grounds for review
[24]
The arbitrator found the employee’s
dismissal substantively and procedurally unfair and ordered his
reinstatement.
[25]
The Applicant raised a number of grounds
for review.
[26]
Before dealing with the grounds for review,
it is pertinent to consider the arbitrator’s analysis and
findings based
on the evidence before him. The arbitrator correctly
identified the question to be determined as whether the employee’s
dismissal
for medical reasons was procedurally and substantively
fair.
[27]
The arbitrator further correctly referred
to Item 11 of Schedule 8 of the Act and stated that he was required,
in determining the
fairness of a dismissal arising from ill health,
to consider whether or not the employee is capable of performing the
work and
if not capable, the extent to which the employee is able to
perform the work, the extent to which the employee’s work
circumstances
or duties might be adapted and the availability of any
suitable alternative work. It was in this context that the arbitrator
had
to determine the fairness or not of the employee’s
dismissal.
[28]
On substantive fairness the arbitrator made
three main findings. Firstly, he found that the Applicant could not
have used Ms Coetzee’s
report to dismiss the employee due to
the fact that she was not qualified to compile such a report and thus
the medical report
used to dismiss the employee was irregular or
flawed.
[29]
Secondly, Item 10 of Schedule 8 places a
duty on the employer to make recommendations or find alternative
duties for the employee
and not the other way round. The arbitrator
rejected the Applicant’s argument that the employee failed to
make recommendations
as to where he could be placed alternatively
until he recuperated because he held that such duty was on the
employer and not the
employee.
[30]
Thirdly the arbitrator dealt with the
question whether the period of absence would be unreasonably long and
warranted dismissal.
The arbitrator held that the employee’s
illness was curable, he would have recovered within six months, which
period of absence
would not have been unreasonably long, more so
since his job was not highly skilled and it would not have been
difficult to temporarily
replace the employee.
[31]
On procedural fairness, the arbitrator
found the employee’s dismissal procedurally defective in the
absence of any proof that
the Applicant followed a fair procedure
provided for in a policy, when the medical report was used as the
only source to dismiss
the employee. The arbitrator further held that
the Applicant failed to exhaust all options short of dismissal before
it dismissed
the employee.
[32]
The arbitrator found the employee’s
dismissal procedurally and substantively unfair as the Applicant
failed to prove that
the medical report used to dismiss the employee
was legitimate, it failed to submit evidence showing that Ms Coetzee
was allowed
to make findings regarding permanent disability and even
if there was such a policy, Ms Coetzee was not qualified to make such
a finding.
[33]
The arbitrator finally ordered the
retrospective reinstatement of the employee as he found that no
evidence was presented that the
circumstances surrounding the
dismissal were such that a continued employment relationship was
intolerable or that the employee
would not be totally cured after 6
months of treatment.
[34]
It is these findings the Applicant seeks to
review and set aside. The grounds for review are that:
1.
The arbitrator committed a gross
irregularity by failing to take all the evidence before him into
consideration;
2.
The arbitrator misconstrued the evidence by
concluding that Ms Coetzee admitted that she was not qualified to
make the findings
in the medical report and that the report was not a
legitimate one;
3.
The arbitrator disregarded relevant
evidence when he concluded that Ms Coetzee’s report was the
only evidence used to dismiss
the employee. The arbitrator ignored
the evidence that there was no alternative work available and the
employee’s duties
could not be adapted due to his health
problems, particularly with his lungs and the fact that the entire
workplace was dusty,
an environment where the employee could not work
in.
4.
The decision to reinstate the employee,
despite the fact that his illness does not allow him to work in a
dusty environment and
the workplace is dusty, is not reasonable.
[35]
In my view there are two main grounds for
review. The first three grounds for review are all related to the
manner in which the
arbitrator dealt with the evidence that was
before him, how he assessed the evidence and the findings he made
based on that evidence.
The second main ground for review is that the
decision to reinstate was not reasonable.
The test on review
[36]
The test
that this Court must apply in deciding whether the arbitrator's
decision is reviewable has been rehashed innumerable times
since
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
as whether the decision reached by the arbitrator is one that a
reasonable decision maker could not reached. The Constitutional
Court
very clearly held that the arbitrator's conclusion must fall within a
range of decisions that a reasonable decision maker
could make.
[37]
In
Goldfields
Mining South Africa v Moreki
[3]
the Labour Appeal Court
held that:
“
In
short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is
reasonable.”
[38]
Following
the Supreme Court of Appeal judgment in
Herholdt
[4]
and the Labour Appeal Court’s judgment in
Gold
Fields
,
[5]
the Labour Appeal Court handed down another important judgment in
Head of
the Department of Education v Mofokeng.
[6]
In this
judgment the Court provided the following exposition of the
review test:
“
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will
ex
hypothesi
be material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable result.
The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant factors informing
the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable equilibrium
has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the arbitrator,
a wrong answer
will not necessarily be unreasonable. By the same token, an
irregularity or error material to the determination
of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the issues, with the
result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted from the correct
path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.”
[39]
This
dictum
in
Mofokeng
was further interpreted and in
Shoprite
Checkers v CCMA and others
[7]
this
Court considered the guidance
Mofokeng
provides
for determining when the failure by an arbitrator to consider facts
will be reviewable. The Court accepted the following
mode of
analysis:
a.
the
first enquiry is whether the facts ignored were
material
,
which will be the case if a consideration of them would (on the
probabilities) have caused the commissioner to come to a different
result;
b.
if
this is established, the (objectively wrong) result arrived at by the
commissioner is
prima
facie
unreasonable;
c.
a
second enquiry must then be embarked upon – it being whether
there exists a basis in the evidence overall to displace the
prima
facie
case of unreasonableness; and
d.
if
the answer to this enquiry is in the negative, then the award stands
to be set aside on review on the grounds of unreasonableness
(and
vice
versa
).
[40]
In
summary: Where it is alleged in review proceedings that an arbitrator
ignored certain material facts, the enquiry is whether
indeed this
was the case, and if so, whether these facts were material. If it is
found that they were indeed ignored as alleged,
and were material, it
follows that the arbitrator would have come to a different conclusion
had he taken them into account, and
therefore the result arrived at
would
prima
facie
be unreasonable
[8]
.
[41]
Essentially the Applicant’s case is
that the arbitrator failed to take all the evidence before him into
consideration; he
misconstrued the evidence and disregarded relevant
evidence.
[42]
The complaints mainly relate to the medical
report and the arbitrator’s findings on that.
[43]
In this regard, the first issue to be
decided is whether the arbitrator ignored relevant evidence.
[44]
The arbitrator found that Ms Coetzee was
not qualified to compile the medical report and as a result the
medical report was irregular
and flawed. In finding this, the
arbitrator misconstrued the evidence. Ms Coetzee testified that she
is a qualified occupational
health nursing practitioner. Ms Coetzee
could not declare a patient unfit for duty, only a doctor could do
that. Her testimony
was that she did not declare the employee unfit
for duty but a medical doctor did and she explained the circumstances
that prevailed
at the time she signed the report.
[45]
Ms Coetzee never conceded that she was not
qualified to compile the report. This misconstruing of the
evidence caused the
arbitrator to consider a host of other relevant
facts. After he found the medical report irregular, he ignored all
the evidence
adduced by Ms Coetzee, which was material for the issues
he had to decide.
[46]
Ms Coetzee, as a qualified occupational
health nursing practitioner, examined the employee and she did a lung
function test but
the employee could not breathe and even with the
help of a bronchodilator he had severe restrictions. She testified
that the damage
to the employee’s lungs was such that it could
improve only a little bit but due to the condition of his lungs, he
would
be permanently unable to work in a dusty environment. Ms
Coetzee stated that the employee’s condition would deteriorate
and
his ability to breathe would decline further if he worked in a
dusty environment, even a dust mask would not protect him. The
condition
of his lungs were determined by a number of tests,
including a lung function test and chest x-rays.
[47]
The testimony in respect of the tests Ms
Coetzee performed and the results of those tests was not disputed.
Not once in his award
did the arbitrator make mention of the
undisputed evidence that was adduced to show that the employee had a
serious lung condition
and was unfit to work in a dusty environment.
[48]
Ms Barrington explained that the entire
workplace is full of dust due to the nature of the Applicant’s
operations and if the
employee required a dust free area, the
Applicant’s workplace was not suitable as it is very dusty and
it was impossible
to find an alternative position for the employee as
the entire workplace was dusty. She explained that the Applicant
considered
as alternatives the possibility to move the employee from
outside to inside or to utilise him at the bag plant but all those
alternatives
were not feasible as there was dust everywhere. This
testimony was not disputed.
[49]
The employee’s own testimony was that
he was never at work as he was always sick, he confirmed that he was
sent for tests
at the medical centre and that they did all the tests
and took x-rays, as per the medical report that he had seen. He
confirmed
that he could not do push-ups and weights and that he was
still receiving TB treatment. The employee conceded that at the time
of the incapacity inquiry he was unable to work and he conceded that
he did not tell Mr Koegelenberg that he was on treatment and
would be
ill for only six months. The employee suffered from TB in 2010 and he
stayed at home and only came back to work after
his treatment was
completed. He was once again suffering from TB.
[50]
This evidence as well as Ms Coetzee’s
undisputed evidence on the employee’s lung condition was
ignored when the arbitrator
found that the employee would have been
cured in six months.
[51]
It is evident from the transcribed record
that material parts of the employee’s evidence were not put to
the Applicant’s
witnesses in cross-examination and they never
had an opportunity to respond to that. The arbitrator could not have
accepted a version
that was not put to the Applicant’s
witnesses as an ‘undisputed’ version.
[52]
In considering procedural fairness, the
arbitrator once again considered the fact that Ms Coetzee’s
report should not have
been used. The arbitrator completely
ignored the evidence adduced by the chairperson and the concessions
made by the employee
in respect of the procedure. He
misdirected himself when he failed to consider relevant evidence that
was adduced on the
procedure and instead found that the Applicant
should have recommended that the employee take leave without pay and
directed him
to approach the Department of Social Development for a
temporary disability grant. This lost sight of the fact that
the employee
conceded that he did not tell the chairperson that he
was on medical treatment and would be ill for 6 months. To
expect of
the employer to grant leave without pay when nothing
informed it of the period of such leave, is not reasonable.
[53]
It follows that the arbitrator ignored a
host of relevant facts.
[54]
Having found that relevant facts were
ignored by the arbitrator, the
Mofokeng
analysis should now be undertaken. To begin with the first enquiry,
the relevant facts that were ignored by the arbitrator constitute
material facts, because if they had been considered by the
arbitrator, he would (on the probabilities) have come to a different
conclusion. In the result, the award is
prima
facie
unreasonable.
[55]
Turning to the second enquiry, the question
is whether there exists a basis in the evidence overall to displace
the
prima facie
case of unreasonableness. To my mind, no such basis exists in this
case, with the result that the award is unreasonable and there
is
merit in the first three grounds for review as raised by the
Applicant.
[56]
The arbitrator, in determining the fairness
of the employee’s dismissal, had to consider whether or not the
employee was capable
of performing the work and if not capable, the
extent to which the employee is able to perform the work, the extent
to which the
employee’s work circumstances or duties might be
adapted and the availability of any suitable alternative work.
Glaringly
absent from the arbitration award is a consideration of
these factors. What is astonishing is that the arbitrator was able to
identify
the factors he had to consider, but then dismally failed to
consider it in view of the evidence that was placed before him.
[57]
In respect of procedural fairness, it is
not for the arbitrator to prescribe to the employer what should have
been done but rather
to assess the process that was followed and to
decide if it was fair. The arbitrator dismally failed to do so.
[58]
The last ground for review relates to the
relief of reinstating the employee.
[59]
In my view there is merit in this ground
for review.
[60]
The arbitrator failed to consider material
facts, because if they had been considered by the arbitrator, he
would have come to a
different conclusion. For instance, the
undisputed evidence that the employee could not work in a dusty
environment as his lung
condition would further deteriorate and even
a dust mask would not protect him, should have been considered in
deciding whether
reinstatement would be appropriate. The undisputed
evidence was that the Applicant has no alternative position that
would be ‘dust
free’ as there is dust everywhere due to
the nature of the Applicant’s operations.
[61]
In finding that the employee should be
retrospectively reinstated because no evidence was presented that the
circumstances surrounding
the dismissal were such that a continued
employment relationship was intolerable or that it was not reasonably
practicable to reinstate
the employee, the arbitrator ignored
material evidence and misdirected himself. Had he considered the
evidence properly, he could
not have ordered the reinstatement of the
employee.
[62]
I must ascertain whether the arbitrator
considered the principal issue before him, evaluated the facts
presented and came to a conclusion
that is reasonable.
[63]
Viewed cumulatively, and in line with
Mofokeng,
the
arbitrator’s failure to apply his mind to issues, which as
demonstrated above, were material to the determination of the
dispute, led him to misconceive the nature of the enquiry. The
arbitrator failed to address the issue he had to determine, as
alluded to
supra
. It cannot therefore be said that the
arbitrator’s decision was one that a reasonable arbitrator
could have reached on the
full conspectus of all the facts before
him.
[64]
Based on the above, I am persuaded that this award
cannot stand and should be interfered with on review. It follows that
the application
in terms of section 158(1)(c) of the Act to make the
arbitration award an order of Court fails.
[65]
This is a case where the interests of justice and
fairness would be best served by no cost order.
Order
[66]
In the premises I make the following order:
66.1 The
arbitration
award issued on 25 March 2013 under case number NC3007-12
is
reviewed and set aside;
66.2 The arbitration award is
substituted with an order that the Third Respondent’s dismissal
was fair;
66.3 The application in
terms
of section 158(1)(c) of the Act to make the arbitration award an
order of Court is dismissed;
66.4 There is no order as to costs.
______________
C.
Prinsloo
Judge
of the Labour Court
Appearances:
Applicant:
Advocate S Roelofs
Instructed
by:
De Villiers Du Plessis Attorneys
Third
Respondent:
Mr N. Cloete of Neville
Cloete Attorneys
[1]
Act 66 of 1995.
[2]
(2007) 28 ILJ 2405 (CC) at para 110.
[3]
(2014) 35
ILJ
943 (LAC).
[4]
[2013] 11 BLLR 1074 (SCA).
[5]
[2014] 1 BLLR 20 (LAC).
[6]
[2015] 1 BLLR 50
(LAC), paragraph 33.
[7]
(2015) 36 ILJ 2908 (LC).
[8]
[2015] 1 BLLR 50
(LAC). See also
Shoprite
Checkers v CCMA and others
(at paragraph [10] where it was held that; “
The
shorthand for all of this is the following: where a commissioner
misdirects him or herself by ignoring material facts, the
award will
be reviewable if the distorting effect of this misdirection was to
render the result of the award unreasonable”