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[2016] ZALCPE 12
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South African Post Office Ltd v Kriek and Others (P190/12) [2016] ZALCPE 12 (22 April 2016)
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT PORT ELIZABETH
Of interest to
other judges
Case
no: P190/12
In the
matter between:
SOUTH AFRICAN POST OFFICE
LTD.
First Applicant
and
SYLVIA NORTJIE KRIEK
First Respondent
BOTHA DU PLESSIS (
N.O.
)
Second Respondent
THE COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
Third Respondent
Heard
:
17 April 2014
Delivered
:
22 April 2016
Summary:
(Review – unfair labour practice –
refusal of extended leave benefit claim – policy underwritten
by insurer –
Jurisdiction – decision to refuse benefits –
Jurisdiction - benefit - Merits of award – reasonableness
threshold met – Costs – insufficient justification for
punitive award – cost award set aside – remittal
of award
to quantify relief by issuing variation order)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The first respondent in this matter, Mrs
Kriek (‘Kriek’), was employed as an account manager with
the South African
Post Office (‘SAPO’) and had been
employed by it for 27 years. She was booked off work from March until
November 2010.
She applied for temporary total disability (‘TTD’)
leave benefits for the period 6 March to 5 July 2010. Her application
was refused on 8 November 2010 on the basis that there was “evidence
of sick leave abuse; there was no medical justification
to justify
the prolonged absence, and, her absence was ascribed to an injury on
duty.” SAPO demanded repayment of TTD leave
benefits it had
paid to her pending the outcome of her application amounting to
R 62,328.52 and commenced deductions from
her salary to recover the
this amount. The amount of deductions actually made was never
clarified in the arbitration. In December
2010 she referred an unfair
labour practice dispute regarding the provision of benefits to the
CCMA which she described as a “refusal
of temporary total
disability benefits”.
[2]
The matter was referred to arbitration. On
24 August 2011, the arbitrator dismissed an
in
limine
objection raised by the
applicant challenging the jurisdiction of the CCMA to determine the
matter. Subsequently in the award,
the arbitrator held that the
refusal of TTD benefits was an unfair labour practice and ordered the
applicant to grant such benefits
to Kriek and to refund her any
deductions made to recover TTD benefits already paid to her. The
arbitrator also ordered the applicant
to pay Kriek’s costs on
an attorney client scale and the cost of her expert witness, on the
basis that the conduct of the
applicant in dealing with Kriek had
been appalling.
[3]
The applicant seeks to the review award.
Apart from taking issue with the merits of the arbitrator’s
reasoning in accepting
that her entitlement to TTD benefits was
established, the applicant raises two jurisdictional challenges to
the award. Firstly,
it contends that the TTD benefits were
determined by the SANLAM policy which SAPO concluded with SANLAM, and
did not amount to
a benefit due to Kriek in terms of section 186
(2)(a) of the Labour Relations Act 66 of 1995 (‘the LRA’)
as it was
not something she was entitled to claim as matter of right
in contract or
ex lege
.
Secondly, the decision to refuse Kriek TTD benefits was not a
decision of the applicant but of the insurer Sanlam. Hence, the
decision could not be attacked as amounting to “conduct of the
employer…relating to the provision of benefits to an
employee”, as described in section 186(2)(a). The applicant
also wishes to have the punitive cost order set aside on the
basis
that there was no evidence to support the conclusion that it had
treated Kriek “appallingly”.
[4]
The review application was launched nine
weeks after the final award and was accordingly late. The applicant
has applied for condonation
for the three-week period, which is not
opposed.
Condonation
application
[5]
The review application was filed on 22 May
2012, the award having been received by the applicant’s
attorneys on 28 March 2012.
Consequently, the delay was approximately
two weeks, which is not significant. A number of reasons for the
delay are advanced by
the applicant, but in the main, they do not
evidence a party that had approached matters in a dilatory fashion.
There is also no
obvious prejudice suffered by Kriek as a result of
the delay. In the circumstances, I would only decline to grant
condonation if
the merits of the review were very poor, which is not
the case. Accordingly, the late filing of the review application is
condoned.
The
review application
Jurisdictional
grounds
[6]
Before
addressing the merits of the jurisdictional issues, it is necessary
to deal with the contention that the applicant ought
to have taken
the arbitrator’s jurisdictional ruling on review after it was
handed down and must be assumed to have waived
its right to challenge
the ruling by proceeding with the arbitration. I do not think there
is merit in this approach. This court
has frequently emphasised that
it is inimical to the objects of expedited dispute resolution in the
Labour Relations Act, 66 of
1995 (‘the LRA’), for review
proceedings to be dealt with on a piecemeal basis.
[1]
[7]
A
second objection to the applicant seeking to set aside the
in
limine
ruling is that such relief was never included in the notice of motion
or the amended notice of motion submitted in terms of rule
7A or (8).
The applicant purports to address this irregularity by submitting an
amended notice of motion with its heads of argument,
but such notice
did not accompany the heads of argument filed with the registrar.
This objection might have some bearing on costs,
but does not
dispose of the need for the issue to be addressed. It is well
established that a court may even raise a jurisdictional
point
mero
motu
if it comes to its attention. If a jurisdictional matter is raised
affecting the power of an arbitrator to make an award, the court
cannot be prevented from considering such an issue. To do otherwise
might result in the court upholding an award which the arbitrator
had
no legal authority to make and would offend the principle of
legality.
[2]
[8]
In any event, the applicant argues that the
challenge to the arbitrator’s assumption that the applicant’s
claim related
to the unfair refusal to provide a benefit
was
expressly addressed in the founding papers. Secondly, it contends
that it expressly raised as a ground of review the matter of
the
identity of the party which took the decision to refuse the benefit.
In effect, it submits that even if it did not expressly
seek to set
aside the
in limine
jurisdictional
ruling, it was entitled to independently raise these jurisdictional
issues as grounds of review. On the basis that
jurisdictional issues
can be raised at a later date, in my view there was nothing to
prevent the applicant raising the issues in
the review proceedings
even if they were not raised at the arbitration hearing.
Classification
of TTD payments as a benefit
[9]
In his
in
limine
ruling on this issue on 24
August 2011, the arbitrator reasoned as follows in deciding that he
had jurisdiction to consider Kriek’s
claim as an unfair labour
practice:
“
10.
The crisp question to ask is what the nature of this benefit is. It
constitutes additional sick leave provided by the respondent.
The
respondent decides whether an employee qualifies or not for the TTD
benefits. A decision is not referred to Sanlam. It follows
that this
benefit must be part of the employment contract. In my view the
dispute at hand is not to interpret a policy. It will
be the
applicant’s case that this benefit was unfairly withheld from
[her] and she has to discharge that onus.
11.
In the matter Protokon (Pty) Ltd v CCMA (2005) 25 ILJ 1105 (LC) it
was ruled that a dispute of this nature was to be [justiciable]
by
way of arbitration as an unfair labour practice. “The fact that
an employer is entitled by the terms of the benefit scheme
policy to
exercise a discretion… As to the terms upon which the benefit
is to be provided or as to whether the benefit is
to be provided at
all, does not take the benefit outside the ambit of the unfair labour
practice jurisdiction provided by section
186(2)(a) of the Act.
12.
Therefore, in light of the above, I was suitably persuaded that the
CCMA has jurisdiction to hear this matter and determine
whether the
respondent unfairly had with help the benefit.”
[10]
In
Apollo
Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
[3]
,
the LAC summarised the classification of benefits which can be
submitted to arbitration as unfair labour practice disputes under
s
186(1)(a) :
“
[45]
The Labour Court pointed out that there are many employer and
employee rights and obligations that exist in many employee benefit
schemes. In many instances employers enjoy a range of
discretionary powers in terms of their policies and rules. The Labour
Court further pointed out that s 186(2)(a) is the legislature's way
of regulating employer conduct by superimposing a duty of fairness
irrespective of whether that duty exists expressly or implicitly in
the contractual provisions that establish the benefit.
The
court continued and stated that the existence of an employer's
discretion does not by itself deprive the CCMA of jurisdiction
to
scrutinize employer conduct in terms of the provisions of the
section. It concluded that the provision was introduced primarily
to
permit scrutiny of employer discretion in the context of employee
benefits. I agree with this conclusion.
[46]
I also agree, with qualification, with the Labour Court's conclusion
that there are at least two instances of employer conduct
relating to
the provision of benefits that may be subjected to scrutiny by the
CCMA under its unfair labour practice jurisdiction.
The first is
where the employer fails to comply with a contractual obligation that
it has towards an employee. The second is where
the employer
exercises a discretion that it enjoys under the contractual terms of
the scheme conferring the benefit.”
[4]
[11]
The arbitrator’s reasoning is in line
with the LAC’s classification of disputes over the provision of
benefits which
may be the subject of an unfair labour practice
arbitration under section 186 (2)(a), if one assumes that under the
policy for
granting TTD benefits to an employee, it was SAPO which
decided whether the employee would be granted the benefit. This
assumption
is addressed below.
[12]
The applicant added a further refinement to
its complaint that the claim of the applicant did not concern a
benefit, namely the
employer was seeking to recover salary paid to
Kriek whilst her TTD application was pending. Therefore it argued the
complaint
was essentially about a salary deduction and concerned
remuneration which is not a dispute that can be entertained under the
unfair
labour practice jurisdiction. In my view this argument is a
somewhat desperate one. It is patently clear that the reason Kriek
had referred the dispute was that the employer was deducting monies
because
it
had refused her TTD benefits application. In other words, the
deduction was consequent upon the refused application and if that
refusal proved to be unfair, it would be appropriate to redress the
negative consequences of the original decision. I do not think
that
because the prejudice occasioned by the refusal of Kriek’s TTD
application manifested itself in the form of salary deductions,
that
the underlying dispute is defined by that consequence. It remains
essentially a dispute about the alleged unfair refusal to
approve the
TTD benefits application. Moreover, in the section of the CCMA
referral form containing ‘summary of facts of
the dispute’
it was clearly stated by Kriek that the facts concerned “Refusal
of temporary total disability benefits.”
[13]
This brings us to the question of how the
decision to refuse Kriek’s application for TTD benefits
was finally taken.
Kriek correctly contends that is a matter of fact,
and therefore the commissioner’s finding on this is to be
tested on the
basis whether it was one that no reasonable arbitrator
could have reached. In the introduction to his evaluation in his
award,
the arbitrator stated:
“
19.
The issue to decide is whether the applicant qualified to receive the
TTD benefits in terms of the Centre policy as recommended
by the PHS
panel. This TTD benefit constitutes additional paid sick leave
provided by the respondent. The respondent decides whether
an
employee qualifies will not for the TTD benefits.”
[14]
In the arbitration proceedings, one of the
jurisdictional challenges raised by the applicant was that the
benefit arose out of the
Sanlam “Income Continuation Insurance
Policy” and that the arbitrator was been asked to interpret the
provisions of
that scheme, which lay outside his remit as an
arbitrator. At that stage, it was never contended by the applicant
that the decision
to refuse Kriek TTD benefits was the decision of a
third party.
[15]
However, in its review application the
arbitrator claims that it was “simply wrong” of the
arbitrator to conclude that
it took the decision. In the
supplementary affidavit the applicant expanded on this claim:
“
4….This
finding is simply wrong. It is the insurer in this case SANLAM, which
decides whether an employee of the insured
qualifies for such
benefits and the period therefore.
5.
This is stated expressly in the policy document (Income Continuation
Insurance Policy) which was handed in at the arbitration
hearing
before the Commissioner and which he claimed he could not have
considered. I refer in particular to clauses 3.3; 3.5; 3.7;
3.8; 3.9;
3.10 and 3.11 of that policy.
6.
Hence the decision which the first respondent employee complained
amounted to an unfair labour practice could never be such as
it was a
decision taken by SANLAM, not the applicant employer. In failing to
appreciate this, the Commissioner not only ignored
all the evidence
and arguments presented to him by the applicant on this issue, dealt
with in my founding affidavit, but he could
not even have read the
clauses of the policy document referred to above.
7.
In addition, the Commissioner fails to deal with the applicant’s
contention, either in his
in limine
ruling or his final award,
that the granting of TTD in terms of the Sanlam policy does not
amount to a “benefit” as
defined in section 186 (2)(a)
since it is not claimable by the first respondent is a matter of
right
ex contractu or ex lege.
As stated in my founding
affidavit and as the evidence before the Commissioner reveals, the
contract in question is between applicant
and SANLAM; not the
applicant and the first respondent.
8.
I am advised that these fundamentally erroneous findings amount to a
gross irregularity in the proceedings and renders the award
liable to
be set aside on these grounds alone. They are so unreasonable that it
leads to the inference that the Commissioner either
failed utterly to
consider the evidence and arguments presented by the applicant on
this issue; or so misconstrued the nature of
the enquiry that he was
required to undertake; to such a degree that he failed either to
apply his mind to the matter or was biased
against the applicant when
doing so.”
[16]
In the heads of argument submitted by the
applicant in support of its original
in
limine
points before the arbitrator, it
cited the rules of the Post Office Retirement Fund established in
terms of section 10 of the Post
Office Act, 44 of 1958 (‘The
Post Office Act’) and the following section of the rules of the
fund appearing in GN 1107,
government Gazette 28228, 25 November
2005:
“
7.
DISABILITY
7.1
if at any time prior to his NORMAL RETIREMENT DATE a MEMBER other
than a DEFINED BENEFIT
MEMBER becomes disabled, as a result of an
accident, a disease or an illness, to the extent that he cannot
pursue his occupation
for which she is qualified by his training and
experience, the MEMBER shall; provided he is not declared PERMANENTLY
DISABLED,
become entitled to disability income in terms of a separate
group disability scheme instituted by the EMPLOYER.”
[17]
The applicant went on to say that the
policy referred to in 7.1 is known as the “Income Continuation
Insurance Policy, which
is underwritten
by
Sanlam Life Insurance Ltd”
(emphasis added). At this juncture, it must be mentioned that two
policy documents were canvassed
at the arbitration. One document was
the “Income Continuation Insurance Policy”, which is the
insurance contract between
SAPO and Sanlam Life Insurance (‘Sanlam
policy’). The other document was the SAPO policy on extended
sick leave applications
(‘SAPO policy’). The Sanlam
policy effectively governs the payment,
inter
alia
, of claims for TTD income
benefits, which are made to SAPO in respect of employees who qualify
to be insured in terms of the policy.
However, the underwriting
policy does not deal with the process of approving the payment of TTD
benefits to individual employees,
but only with the conditions under
which Sanlam will pay the employer in respect of an employee who
satisfies Sanlam’s requirements
for TTD.
[18]
It is the SAPO policy which deals with the
procedure for approving employee applications for TTD benefits and it
makes no reference
to the underwriting Sanlam policy except in
defining Total Disability as follows:
“
Sanlam
defines total disability as:
a condition
where the insured directly and exclusively as a result of bodily
injury
or an illness
is
continuously and totally prevented
from following the regular occupation
that he/she followed immediately before, provided that the condition:
·
Is not attributed to the insured’s
having negligently or wilfully exposed himself/herself to danger,
except in the interest
of the law or to protect his/her or another’s
life or property; and
·
Is not attributable to intentional
self-inflicted injury; and
·
Cannot be substantially removed by surgery
or any other medical treatment which, taking into account the risk
and the prospect of
success of that treatment, the insured can
reasonably be expected to undergo.”
(emphasis
added)
[19]
Dr C Mpata testified for SAPO on the
approval process. She was responsible for overseeing SAPO’s
employee wellness and health
and occupational health programme
nationally. She did so with reference to the SAPO policy document. In
essence her evidence was
that the initial assessment of an employee’s
entitlement to TTD benefits was outsourced to an organisation known
as Proactive
Health Solutions (‘PHS’). That assessment
would then be discussed at a monthly meeting of a medical panel
comprising
a doctor, occupational therapist and a physiotherapist and
a recommendation made which Dr Mpata said she would forward to “the
Group Executive who is having the delegation or approving our
recommendations.” There was no suggestion in Dr Mpata’s
evidence that Kriek’s application was refused by Sanlam or that
the medical panel and PHS did anything more than make
recommendations.
[20]
In the circumstances, there was more than
ample evidence to support the arbitrator’s conclusion that it
was SAPO that took
the decision to refuse her application for TTD
benefits. It should also be mentioned that it is apparent from the
transcript that
when the
in limine
points
were argued before the
arbitrator handed down his ruling on 24 August, SAPO’s legal
representative more than once contended
that the arbitrator was
effectively being asked by Kriek to review a decision of the employer
having regard to the Sanlam policy,
which he had no power to do.
Nowhere in his representations did the applicant’s
representative make the slightest suggestion
that the decision was
not made by the employer.
[21]
Consequently, the remaining issue concerns
the substantive merits of the arbitrator’s award on whether the
refusal of Kriek’s
application amounted to an unfair labour
practice.
The
substantive merits of the refusal of TTD benefits
[22]
The arbitrator concluded that Kriek had
been unreasonably refused TTD benefits by analysing the reasons given
by the applicant for
doing so and finding them wanting. The reasons
advanced for refusing the benefit were that: “evidence of sick
leave abuse;
there was no medical justification to justify the
prolonged absence, and, her absence was ascribed to an injury on
duty.”
More specifically, the panel recommendation in
commenting on the medical statement for the period of the application
was the following:
“
·
In addition to evidence of sick leave
abuse, it should be noted that the panel acknowledges that for the
period in which she applied
for TTD, Ms Kriek was diagnosed with a
genuine medical condition that required hospitalisation.
·
It was also noted that Miss Kriek was
allegedly threatened at work in August 2009 and that she consulted
with her general practitioner
who treated her. She consulted with a
psychologist and psychiatrist in Feb 2010 and March 2010
respectively. Ms Kriek used her
18 days of normal sick leave during
this period (the optimum number of days to be off sick from work for
condition is 28 days-as
recommended by MDA). She exceeded these
recommended days and there was no medical justification to justify
the prolonged absence
from work due to illness.
·
It was also noted that the absence due to
illness was ascribed to “injury on duty” this is not
covered by the temporary
total disability insurance, the employer has
to apply to the workmen’s compensation (it is advised that the
employee contact
risk for applications)”
When
making the recommendation to decline the application, the panel
further stated that “even if the employee were to qualify
for
TTD it will be declined based on history of sick leave abuse”.
[23]
The arbitrator found that:
23.1.1
Even though the applicant had applied for
compensation for injury on duty for the incident which she claimed
precipitated her Post
Traumatic Stress Disorder (‘PTSD’),
that claim was never finalised or registered and he concluded that
there had been
no injury on duty. Moreover, the applicant itself did
not accept that an IOD incident had occurred and the arbitrator was
also
of the view that even if it had occurred it was not a cause of
illness that disqualified a claim for TTD benefits under the policy.
23.1.2
The TTD policy did not require the employee
to demonstrate a life-threatening situation.
23.1.3
In the absence of Kriek being properly
cross-examined about her alleged abuse of sick leave, her own
evidence was sufficient to
refute that claim. Moreover she had been
booked off sick by her psychiatrist as a result of a genuine illness
and Dr Mpata could
not explain why the medical report of the
psychiatrist did not satisfy the requirement of a comprehensive
medical report.
23.1.4
The applicant was absent on account of
illness which qualified her in terms of the policy for TTD benefits
and none of the exclusions
in the policy applied.
[24]
The applicant claims that the arbitrator’s
reasoning is flawed to such an extent that the court should set aside
his findings
on the following grounds:
24.1
The arbitrator failed to analyse the
conflicting evidence of the expert witnesses, bearing in mind that
the onus remained on Kriek
to prove that she was suffering from the
illness for which she claimed TTD, namely PTSD. The arbitrator had
incorrectly taken the
view that the employer had to justify its
decision to refuse TTD benefits, which amounted to a reversal of the
onus.
24.2
The arbitrator failed to consider the
conflicting evidence as to whether Kriek had been subjected to a
life-threatening incident
although such a finding was necessary in
order to conclude that she was suffering PTSD. In regard to whether
Kriek was required
to prove that the cause of her illness was PTSD
and that in turn required her to prove the existence of a
life-threatening situation,
it needs to be mentioned that the
incident which allegedly prompted the PTSD syndrome was that on 13
August 2009, Kriek and another
employee were involved in an incident
in which the other employee had verbally threatened to kill Kriek.
24.3
He failed to consider that there was no
evidence presented by Kriek contradicting SAPO’s contention
that she had exceeded
her sick leave entitlement to such an extent
that it amounted to an abuse of sick leave.
[25]
On the question of a reversal of the onus,
the arbitrator’s analysis of the evidence proceeded along the
lines of taking the
employer’s reasons for refusing the benefit
and assessing whether the employee had established that those reasons
were unjustifiable.
That does not seem to me to amount to a reversal
of the onus. On the contrary, he accepted that the employee had to
disprove the
reasons relied on by the employer for refusing the
benefit.
[26]
Dr S Prinsloo, the psychiatrist who had
diagnosed the applicant as suffering from PTSD in March 2010,
following the incident in
August 2009 said that Kriek had returned to
work in November 2010 contrary to her recommendation. During the
period of incapacity
which included the period for which Kriek had
applied for TTD benefits, namely March to July 2010, Kriek was
incapacitated and
under treatment. At this juncture it should be
mentioned that the medical condition which allegedly incapacitated
Kriek was described
in by Dr Prinsloo as “Post Traumatic Stress
Disorder and Major depressive Disorder.” Thus it was not
based on
PTSD alone. In Dr Prinsloo’s view there was no abuse
of sick leave. Throughout this period Dr Prinsloo and Mr Breedt
continued
to treat Kriek.
[27]
SAPO’s witness was Dr Sliggant, a
psychologist who only consulted Kriek in November 2011. Based on his
examination, he essentially
disbelieved the analysis that Kriek was
suffering PTDS triggered by the event in August 2009, but agreed that
her mental condition
was not good when he examined her. He did
concede that if her reported symptoms were correct she would not have
been able to function
and that even if she had not suffered from
PTDS, she had suffered from a generalised anxiety syndrome which
could incapacitate
her.
[28]
It is fair to say that the arbitrator did
not feel that it was necessary for him to reach a conclusion whether
Kriek was suffering
from PTDS, as such. He concluded his assessment
of the expert evidence in robust terms:
“
Parties
took issue with the applicant’s past psychological history but
the bottom line is that the applicant was at present
mentally not in
a good state and she “required treatment”.
He
further commented that the delay in taking disciplinary action
against all concerned arising from the incident which allegedly
triggered the PTSD in Kriek. Obviously, the arbitrator seems to have
based his decision on his appraisal of Kriek’s condition
at the
time of the arbitration. If I were to decide this matter simply on
the basis of the arbitrator’s finding on the expert
evidence,
there is a logical difficulty with his approach. Essentially, he was
tasked with determining if, in the light of Kriek’s
condition
at the time when she applied for TTD benefits, she ought to have
qualified for them, not whether she would qualify for
the benefits at
the time of the arbitration hearing.
[29]
On
the face of it, this was a misdirection on his part. However, it is
now trite law that the arbitrator’s reasoning in arriving
at an
outcome is only one factor to consider and that in a review
application dealing with the reasonableness of the award, the
court
must also consider in the light of all the evidence whether the
outcome is one that no reasonable arbitrator could have arrived
at.
[5]
This applies even if the arbitrator misdirects himself.
[6]
I will return to this issue later.
[30]
Turning back to the question whether the
arbitrator’s conclusion that the failure to approve Kriek’s
TTD benefit application
was an unfair outcome that no reasonable
arbitrator could have arrived at on the evidence, I am of the view
that it was a plausible
conclusion on the evidence if not necessarily
the only plausible outcome. The crux of the matter turns on two
issues in my view.
[31]
The first is the claim that Kriek abused
her sick leave. Whilst Kriek bore the onus of establishing that she
had not abused her
sick leave, in so far as the applicant wished to
rely on evidence to rebut her evidence that should have been put to
her and not
simply presented by Dr Mpata. The respondent also did not
tackle Dr Prinsloo’s evidence to the contrary. In the light of
this, I cannot say that no reasonable arbitrator could have reached
the conclusion that she did not abuse her sick leave entitlements,
relying primarily on Kriek’s evidence in that regard.
[32]
The second issue is whether or not there
was sufficient evidence before the arbitrator to plausibly support a
conclusion that Kriek
was continuously and completely prevented from
performing her regular occupation that, at the time of the
application for TTD benefits.
At the time the panel recommended the
refusal of the application, the only medical opinion before it by
anyone who had consulted
with Kriek were the opinions of Dr Prinsloo
and Mr Breedt. Although Dr Prinsloo only saw the applicant over six
months after the
alleged trigger event, Dr Prinsloo did so at the
time the applicant was allegedly in need of TTD benefits, whereas the
applicant’s
expert witness only consulted with Kriek more than
two years later. In terms of the SAPO policy, PHS could in the
course
of making its assessment examine the patient. There was no
evidence this was done. Dr Prinsloo’s prognosis at the time was
that there was no short term prospect of improvement.
[33]
The applicant’s expert witness,
despite being of the opinion on the basis of a personality test that
Kriek may have exaggerated
her PTSD symptoms, nonetheless concluded
that by the time he saw her, she suffered from a Generalised Anxiety
Disorder that was
so severe she would “not function effectively
in the workplace”.
[34]
Having regard to the reasoning in the
recommendation of the panel, much seemed to depend on the fact that
the panel regarded Kriek’s
absence as being excessive in
relation to the standard 28 day average which was acknowledged
as a norm in such cases. However,
there was no indication of any
medical grounds set out in the reasons for the recommendation based
on Kriek’s medical condition,
as such, and it was not the
panel’s finding that Kriek was not suffering from PTSD or a
major depressive disorder. In fact
the panel acknowledged her
condition required her to be hospitalised for the period she had
applied for TTD benefits. If there
had been some medical basis for
doubting Dr Prinsloo’s or Mr Breedt’s diagnosis at the
time, the decision to decline
her application would clearly have been
more difficult for Kriek to attack. Essentially, it seems the only
evidence of Kriek’s
condition showed that she remained
incapacitated during the period in question, as evidenced by the
contemporaneous reports submitted
by Dr Prinsloo and her
psychologist, Mr C Breedt.
[35]
Considering the above, I do not think that
on the evidence, it would be unreasonable for an arbitrator to have
concluded that there
was insufficient reason for refusing the benefit
and that it was unfair to have done so.
Cost
award
[36]
Notwithstanding the fact that the review
must fail in the main, I agree that the punitive cost award was
unwarranted. It appears
to have been mainly based on the arbitrator’s
assumption that SAPO had dragged its heels in taking disciplinary
action against
the person who allegedly threatened Kriek, but a
consideration of the efforts made by SAPO to deal with the grievance,
it appears
that the evidence in this regard was not one-sided and the
applicant also did not co-operate in trying to speed matters up.
It cannot be said that SAPO acted in bad faith in defending the
decision, as it is doubtless difficult sometimes to be confident
that
claims based on mental illness such as a major depressive condition
or post-traumatic stress disorder are genuine.
[37]
I am satisfied that the punitive award was
excessive in the circumstances, though I believe that SAPO put Kriek
to unnecessary expense
by forcing her to contest the decision despite
obvious weaknesses in its justification for the decision.
Consequently, the
cost order ought to be set aside and amended.
Costs
and variation
[38]
The applicant had to go to considerable
expense to obtain redress and there is no reason in this instance why
she should have to
bear all her costs.
[39]
I note that in the relief awarded, the
arbitrator failed to quantify the amount that should be repaid to
Kriek and the determination
of that amount is not obvious on the face
of the award as it requires evidence or the agreement of the parties
on the number and
amounts of deductions made from her remuneration.
In that respect, the arbitrator did not finalise the relief and it
should be
remitted to the CCMA for variation of the award.
Order
[40]
The application to review the arbitration
award of second respondent dated 22 March 2013 succeeds to the extent
that the cost order
issued in paragraph 30 of the award is set aside
and substituted with the following order:
“
[30]
The respondent is to bear the costs of the applicant and the costs of
the applicant’s expert witness.”
[41]
The award, as amended by this order, is
remitted back to the third respondent to be set down before a
commissioner solely to determine
the total amount deducted from the
first respondent’s salary in consequence of the applicant’s
refusal to grant the
first respondent TTD benefits for the period 6
March to 5 July 2010 which ought to be refunded to her and to issue a
variation
order to that effect.
[42]
The applicant must pay the first
respondent’s costs of opposing the application.
___________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
Euijen assisted by D A Smith instructed by Goldberg & De
Villiers Inc
FIRST
RESPONDENT:
C
Unwin of C Unwin Attorneys
[1]
See, for example,
Trustees
for the time being of the National Bioinformatics Network Trust v
Jacobson & others
(2009) 30
ILJ
2513 (LC)
at 2516-7 :
“
[61]
…. [F]or this court routinely to intervene in uncompleted
arbitration proceedings would undermine the informal nature
of the
system of dispute resolution established by the Act. The second
(related) reason is that to permit applications for
review on a
piecemeal basis would frustrate the expeditious resolution of labour
disputes. In other words, in general terms,
justice would be
advanced rather than frustrated by permitting CCMA arbitration
proceedings to run their course without intervention
by this court.
This conclusion was recently underscored by the Constitutional
Court. In
Commercial
Workers Union of SA v Tao Ying Metal Industries & others
(2008)
29 ILJ 2461 (CC)
,
Ngcobo J stated at paras 62, 63 and 65:
'[62]
The role of commissioners in resolving labour disputes is set out in
s 138(1) of the LRA which provides:
"The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine
the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities."
[63]
The LRA introduces a simple, quick, cheap and informal approach to
the adjudication of labour disputes. This alternative
process is
intended to bring about the expeditious resolution of labour
disputes. These disputes, by their very nature, require
speedy
resolution....
[65]
... This requires commissioners to deal with the substance of a
dispute between the parties. They must cut through all the
claims
and counter-claims and reach for the real dispute
between the parties. In order to perform this task effectively,
commissioners must be allowed a significant measure of latitude in
the performance of their functions.' ”
[2]
The most recent restatement of the principle appears in
Qibe
v Joy Global Africa (Pty) Ltd: In re Joy Global Africa (Pty) Ltd v
Commission for Conciliation, Mediation & Arbitration
&
others
(2015)
36
ILJ
1283
(LAC)
at
1286, par [4].
[3]
(2013) 34
ILJ
1120 (LAC)
[4]
At 1135.
[5]
See
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013)
34 ILJ 2795 (SCA)
commenting
on the effect of the judgment in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC );(2007) 28
ILJ
2405 (CC )
,
at
2802, par [
“
On
this approach the reasoning of the arbitrator assumes less
importance than it does on the SCA test, where a flaw in the reasons
results in the award being set aside. The reasons are still
considered in order to see how the arbitrator reached the result.
That assists the court to determine whether that result can
reasonably be reached by that route. If not, however, the court must
still consider whether, apart from those reasons, the result is one
a reasonable decision maker could reach in the light of the
issues
and the evidence.”
[6]
Quest Flexible Staffing
Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty)
Ltd) v Legobate
(2015) 36
ILJ
968 (LAC) at 974, para [15].