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[2016] ZALCPE 3
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Bagshaw Footwear (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (P31/13) [2016] ZALCPE 3 (12 February 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: P 31/13
In
the matter between:
BAGSHAW
FOOTWEAR (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
JONATHAN
GRUSS
N.O
Second Respondent
NULAW
obo JONAS AND
OTHERS
Third Respondent
Heard:
30 April 2015
Delivered:
12 February 2016
Summary:
The commissioner’s decision that the applicant’s sick
leave policy was unfair, unreasonably restrictive and
inconsistent
with a collective agreement binding on the parties is not, based on
the material before him, unreasonable and therefore
not susceptible
to review.
JUDGMENT
LALLIE,
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent (“the commissioner”)
in which he
found the dismissal of the individual third respondents, who I will
refer to in this judgment as the respondents, for
incapacity
substantively unfair and ordered their reinstatement. It is opposed
by the third respondent.
Factual
background
[2]
The respondents were employed by the applicant who conducts business
in the shoe manufacturing industry. Pursuant to their dismissal
for
incapacity owing to absenteeism as envisaged in the applicant’s
absenteeism policy, they referred an unfair dismissal
dispute to the
first respondent (“this CCMA”) challenging the
substantive fairness of the dismissal. The commissioner
issued the
award which the applicant seeks this court to review and set aside.
The
award
[3]
The commissioner recorded the issue before him as the determination
whether the respondents’ dismissal was substantively
fair. In
doing so, he had to determine whether the applicant’s
absenteeism policy amounted to a fair standard and whether
the
applicant had fairly applied the policy when dismissing the
respondents. He noted that the respondents were dismissed for
incapacity in that their absence from work in terms of the
absenteeism policy (“the policy”) was excessive and
rendered
them unable to execute their obligations in terms of their
contracts of employment. Giving reasons for his decision, the
commissioner
considered the provisions of the policy. He took into
account the applicant’s membership of the National Bargaining
Council
for the Leather Industry of South Africa (“the
bargaining Council”) whose collective agreement for the
footwear sector
is binding on the applicant. The collective agreement
provides that during every 36 months sick leave cycle an employee’s
entitlement to paid sick leave will be limited to 10 days in each 12
months. The limitation shall not apply to employees whose
incapacity owing to illness or hospitalisation exceeds a period of 10
days in which event the Basic Conditions of Employment Act will
prevail.
[4]
The policy sets its sick leave target at less than 2.5 days sick
leave per quarter. The first quarter runs from January to March,
the
second, from April to June, the third, from July to September and the
fourth from October to December. If an employee exceeds
the annual
limit stipulated in the policy, management reserves the right to
apply the policy against the employee or grant the
employee unpaid
leave. A return to work interview is held each time an employee
returns from sick leave. Absenteeism is monitored
quarterly. If an
employee is absent for three or more days in a quarter, the employee
is subjected to counselling. If necessary,
mitigating circumstances
are taken into account. Each counselling is valid for six months and
has the same value as a disciplinary
warning. After the third
counselling an enquiry which may result in dismissal is held.
[5]
The commissioner took into account the applicant’s right to
manage persistent but intermittent absence by setting fair
standards
which are not in conflict with the collective agreement. He noted
that in terms of the collective agreement employees
were entitled to
10 days paid sick leave in each sick leave cycle. On dismissal, Miss
Jonas had 26 years service. Between 26 April
2010 and 18 June 2010,
she was on sick leave for 6 days on two occasions. The first
counselling was held on 14 July 2010. She was
on sick leave from 10
to 12 November 2010 and was subjected to a counselling session on 20
January 2011. Between 20 May 2011 and
24 June 2011, she was on sick
leave for five days on three occasions and was subjected to a
counselling on 18 July 2011. Owing
to a miscarriage, she was on sick
leave from 18 to 24 September 2011 and an enquiry into her
absenteeism was held on 4 November
2011. In 2012, she was on sick
leave for five days on two occasions and on 21 May 2012 an enquiry
which led to her dismissal was
held.
[6]
Ms Samuels had worked for the applicant for 14 years before she was
dismissed. Her sick leave record reflects that between 28
January and
2 March 2011, she was on sick leave for three days on two occasions.
The first counselling session was held on 12 April
2011 and the
second on 18 July 2011
.
Between 7 June and 28 October 2011,
she was on sick leave on two occasions for seven days. The third
counselling session was held
on 1 February 2012. She was on sick
leave for four days from 2 to 5 April 2012 and an enquiry which led
to her dismissal was held
on 3 August 2012. Mr Monakali had served
the applicant for six years before he was dismissed. In 2010, he was
booked off sick for
six days on two occasions and his first
counselling session was held on 4 November 2010. He was on sick leave
for four days from
22 to 25 March 2011 and his second counselling
session was held on 15 April 2011. From 17 July to 6 September 2011,
he was on sick
leave for four days on two occasions and his
counselling session was held on 19 October 2011. He was on sick leave
for three days
on one occasion from 26 to 28 March 2012 and the
enquiry which led to his dismissal was held on 21 May 2012.
[7]
The commissioner expressed the view that standards set by employers
to manage persistent but intermittent absence must be fair
and not in
conflict with provisions of any leave determination agreed to in a
collective agreement. He found that as employees
employed in the
footwear section of the bargaining council were entitled to 10 days
paid sick leave in each 12 month cycle, to
be regarded as
incapacitated or to have persistent intermittent absence an
employee’s sick absence must be in excess of 10
days per year.
He found the sick leave targets of less than 2.5 days per quarter set
by the applicant unfair, unreasonably restrictive
and failed to
consider the cause of an employee’s illness. He concluded that
the respondents’ dismissal was substantively
unfair as he was
not convinced that they were incapacitated owing to persistent and
intermittent absence. He did not find their
absence from work
excessive.
Grounds
for review
The
review application
[8]
The applicant submitted that the arbitration award stands to be
reviewed and set aside as it is not one which a reasonable
decision-maker could have made in relation to the facts. The award is
not reasonable and justifiable in relation to the law. The
commissioner committed a gross irregularity in that his reasoning is
flawed and his finding consists of a number of random and
mutually
contradictory observations. Further irregularities committed by the
commissioner which the applicant sought to rely on
are based on his
analysis of evidence, arguments and conclusions which rendered his
award unreasonable. He abrogated his responsibility
to consider the
merits with reference to all the evidence, issues of credibility and
inherent probabilities of the dispute. He
misinterpreted facts and
misapplied legal principles.
[9]
The respondents opposed the application mainly on the grounds that
the arbitration award falls within bounds of reasonableness.
They
denied that the applicant set out any basis for review. They further
denied that the commissioner committed any irregularity
including
unreasonably determining the matter beyond the issues in dispute as
agreed upon between the parties. He correctly concluded
that the
absenteeism policy was unreasonable and that there was no basis to
dismiss the respondents.
Analysis
[10]
The applicant elected not to file a supplementary affidavit. A number
of the grounds that it sought to rely on were not substantiated
based
on the record of the arbitration proceedings. However, a number of
submissions made by the respondents in the answering affidavit
are
denied in the replying affidavit. The test for review is whether the
decision reached by the commissioner is one that a reasonable
decision-maker could not reach.
[1]
.
The applicant alleged that the arbitration award is unreasonable
mainly because the commissioner made errors and committed gross
irregularities. In
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
,
[2]
the court elucidated the issue of gross irregularities resulting from
errors made by commissioners in the conduct of arbitrations
as
follows:
‘
A review of
a CCMA award is permissible if the defect in the proceedings falls
within one of the grounds in section 145 (2)(a) of
the LRA. For a
defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by section 145 (2)(a)(ii),
the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material errors of
fact as
well as the weight and relevance to be attached to particular facts,
as well as the weight and relevance to be attached
to particular
facts, are not in and of themselves sufficient for an award to be set
aside, but are only of any consequence if their
effect is to render
the outcome unreasonable.’
[11]
The applicant argued that the commissioner’s approach that the
respondents should have exceeded their sick leave entitlement
before
being dismissed for incapacity was unreasonable and inconsistent with
the decision in
AECI
Explosives Ltd (Zomerveld) v Mambalu.
[3]
In that matter, so went the argument, the employee was absent for 30
days over a period of almost four years and he was entitled
to 14
days sick leave pay year. Had the LAC decided that the employee was
entitled to 14 days sick leave per year before he could
be dismissed,
he would have been entitled to 56 days sick leave in the 4 years in
question, yet he was absent for only 30 days.
The respondents
correctly pointed out that the applicant had incorrectly calculated
the number of days that the respondent was
on sick leave in the
AECI
Explosives
matter. A proper reading of the
AECI
Explosives
judgment (
supra
)
reflects the applicant’s sick leave record as follows:
11.1
From 2 March 1989 to 21 December 1989, he was on sick leave on 10
occasions for 26 days. In July
1998, he was counselled for
unsatisfactory attendance. From 25 January 1990 to 4 November 1990,
he was off sick on six occasions
for 16 days. He was on sick leave on
11 occasions for 37 days during the 14 months preceding June 1991.
From 3 October to 29 November
1991, he was on sick leave on three
occasions for eight days. The applicant’s record therefore
proves that in the
AECI Explosives
matter, the applicant was
dismissed after exceeding his sick leave entitlement for the 4 years.
The
AECI Explosives
matter is, therefore, distinguishable in
that the sick leave record of the applicant in that matter is
materially different from
those of the respondents.
[12]
The applicant further argued that the guiding questions that the
commissioner should have focused on was the nature of the
illness of
the employee and prognosis; whether the employee is still capable of
doing the work he/she was employed to do; if the
employee was not,
the commissioner should have considered the duties the employee was
still able to do; and lastly, he should have
considered whether
alternative work was available. It was the applicant’s
submission that the respondents did not address
the above factors as
they relied only on the submission that they did not exceeded their
annual sick leave entitlement. In the
arbitration award, the
commissioner considered the sick leave records of the respondents,
the provisions of the collective agreement
relating to sick leave and
found the absenteeism sick leave targets set by the applicant of less
than 2.5 days per quarter unfair
and unreasonably restrictive. He
expressed the view that as soon as an employee was booked off sick
for three days, he would automatically
receive counselling
irrespective of the cause of his or her illness. He was not convinced
that the applicants were incapacitated
due to persistent and
intermittent absence or that their absence from work was excessive.
The commissioner was, therefore, of the
view that the respondents
were still able to do their work.
[13]
The test for review laid down in
Sidumo
(
supra
)
is interpreted as follows in
Gold
Fields
Mining
SA
(Pty) Ltd
(Kloof
Gold Mine)
v
CCMA and Others:
[4]
‘
... where a
gross irregularity in the proceedings is alleged, the enquiry is not
confined to whether the arbitrator misconceived
the nature of the
proceedings, but extends to whether the result was unreasonable, or
put another way, whether the decision that
the arbitrator arrived at
is one that falls in a band of decisions to which a reasonable
decision-maker could come on the available
material”.
In
paragraph 18 the court expressed the view that the reviewing court
has to consider the totality of the evidence and decide whether
the
decision made by the arbitrator is one that a reasonable
decision-maker could make. The applicant sought to rely on
Anglo
Platinum (Pty) Ltd v De Beer (citation omitted)
where the above
interpretation of the
Sidumo
judgment was relied upon.
[14]
The totality of the material before the commissioner reflects that
the commissioner considered the issue before him which was
the
fairness of the respondent’s dismissal for incapacity based on
the applicant’s absenteeism policy. The applicant’s
submission that the commissioner exceeded what he was required to
determine is not supported by evidence. The commissioner evaluated
the evidence presented. He noted that the counselling sessions that
the respondents were subjected to had the same value as disciplinary
warnings. His finding that the absenteeism sick leave targets set by
the applicant were unfair and unreasonably restrictive is
based on
the evidence before him.
[15]
The reasonableness of the arbitration award is aptly illustrated by
the case of one of the respondents, Ms Jonas (Jonas). On
31 October
2011, she received a notification to attend a formal medical
absenteeism enquiry relating to her repeated absenteeism
during the
third quarter of 2011. The enquiry was scheduled for 2 November 2011.
Its record reflects that amongst the facts which
were considered and
explained during the enquiry were the need for her regular attendance
and the detrimental effect of the absence
on the applicant’s
operational requirements. The nature of her illness/incapacity is
recorded as miscarriage for which she
was on sick leave for five
days, from 18 to 24 September 2011. At the enquiry, Jonas submitted
that after being treated for the
miscarriage, she felt that she had
not recovered fully although she was well enough to work. She planned
to have her tubes tied.
She had to obtain a date for the procedure
which she promised to convey to the applicant. When asked whether it
was likely that
absenteeism would continue in future, she responded
that at that moment she had no further medical appointments. When
asked what
she was doing to prevent further absenteeism and better
her health, she responded that she was in good health and promised to
do
her best to be at work at all times. She conceded that she
understood that she was in contravention of the applicant’s
absenteeism
policy. Her response, to what the applicant could do to
assist her, was that there was none at that moment but she would
approach
the applicant should the need arise. She gave no mitigating
circumstances. Factors taken into account by the presiding officer
relating to the effect of Jonas’ absenteeism are its
operational requirements and/or productivity including the fact that
absenteeism immediately leads to overtime which in turn results in
addition labour costs and delay in production.
[16]
In his finding, the chairperson did not take into account the five
days Jonas was booked off sick owing to her miscarriage.
He noted
that her previous attendance record was poor and she had been
counselled three times. He extended the outcome of the enquiry
and
monitored her attendance for the fourth quarter of 2011 (October,
November and December 2011) and the first quarter of 2012
(January,
February and March 2012. He added the condition that if the days that
Jonas was booked off sick exceeded the days allocated
in terms of the
applicant’s absenteeism policy, a further enquiry which could
lead to her dismissal would be held. But for
the applicant’s
absence policy, Jonas would not have been subjected to an enquiry for
being on sick leave owing to miscarriage.
She would not have been
threatened with possible dismissal in the event of being on further
sick leave. Jonas was on sick leave
in the first quarter of 2012 for
mostly pelvic pain resulting in infection after her miscarriage. In
his findings, the chairperson
noted that Jonas was afforded an
opportunity in November 2011, she again exceeded her sick leave terms
of the absence policy in
the first quarter of 2012 and dismissed her
for incapacity. It is the restrictive nature of the absenteeism
policy which persuaded
the chairperson to take into account that
Jonas was afforded a final opportunity in November 2011; overlooking
the reality that
the November enquiry was held because Jonas was on
sick leave owing to miscarriage. Jonas is no medical practitioner.
When she
made the promise, she was not aware that after her
miscarriage she would have pelvic pain and infection which would
require her
to be on sick leave.
[17]
The commissioner dealt with the issue before him. He neither
misconceive the nature of the enquiry before him nor reach an
unreasonable decision. The decision that the respondents’
dismissal is substantively unfair is reasonable and based on the
evidence before him. Although the applicant sought to rely on gross
irregularities committed by the commissioner, it did not establish
those gross irregularities or that they led the commissioner to reach
an unreasonable decision. The commissioner reached a decision
which a
reasonable decision-maker could reach on the facts before him. His
arbitration award is, therefore, not susceptible to
review.
[18]
I could find no reason both in law and fairness for costs not to
follow the result.
[19]
In the premises, the following order is made:
19.1
The application for review is dismissed with costs.
_____________
Lallie, J
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: Advocate Grobler
Instructed
by Kirchmanns Inc
For
the Third Respondent: Mr Conradie of Bradley Conradie & Halton
Cheadle
[1]
In this regard,
see
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para 110.
[2]
[2013] 11 BLLR
1074
(SCA) at para 25
[3]
[1995] 9 BLLR 1
(LAC).
[4]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 14.