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[2017] ZALCJHB 78
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Assmang Limited (Blackrock Mine) v De Beer and Others (JR948/14) [2017] ZALCJHB 78 (28 February 2017)
THE LABOUR COURT OF
SOUTH AFRICA,
JOHANNESBURG
Not reportable
Case no: JR 948/14
In
the matter between:
ASSMANG LIMITED
(BLACKROCK MINE)
Applicant
and
LEON DE BEER
First Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
GERALD JACOBS
N.O
Third Respondent
Heard:
8 August 2016
Delivered:
28 February 2017
Summary:
Review Application. Employee dismissed for failing to declare
previous neck injury when completing medical
form.
Employer’s
representative failing to present any evidence under oath and failing
to call any witnesses, despite bearing onus
to prove that dismissal
was fair – no matter how crucial or self-evident a document may
seem to be, can only have evidentiary
value relevant to extent to
which document is contextualised by witness who talks to document in
question.
Reinstatement
of dismissed employee. Where employer fails to prove that it had fair
reason to dismiss employee, it cannot then shift
burden onto employee
and require employee to prove that he should be retained in
employment. Although breakdown of trust relationship
may be implied
from nature of disciplinary offence, without need for employer to
lead evidence, this can only happen where employer
has of necessity
first proven that employee was guilty of gross misconduct –
gross misconduct not proven – complete
absence of evidence to
that effect – nothing to therefore imply a resultant breakdown
in trust relationship that would make
it inappropriate or intolerable
for employee to be reinstated.
Helping
hand cases. Test set out in
Bafokeng Rasimone Platinum Mine
followed – nothing to suggest that employer’s
representative was out of his depth, that he did not understand
process
and what was required of him at arbitration – employer
wilfully and consciously elected not to call any witnesses despite
arbitrator having specifically asked this question.
HELD
that no grounds exist to review and set aside arbitration award –
review application dismissed with costs.
JUDGMENT
FERREIRA
AJ
[1]
This is an application
to review and set aside the arbitration award of Third Respondent
dated 31 March 2014, wherein he found that
it had been substantively
unfair to dismiss First Respondent. Applicant (‘the Blackrock
Mine’) dismissed First Respondent,
a fitter and turner, after
having charged him with misrepresentation, more specifically in that
First Respondent failed to declare
a previous neck injury when he
completed a “pre-placement medical” form during July
2012. First Respondent was subsequently
hired by Applicant and
commenced his employment at the mine approximately four months later,
during November 2012. The alleged
misrepresentation only came to the
attention of Applicant during August 2013, which led to the
employee’s eventual dismissal
during about September 2013.
[2]
Applicant
has raised two grounds of review, both of them predicated on the
accusation that Third Respondent arrived at a conclusion
which no
reasonable decision-maker could have reached: firstly, in finding
that the employee did not fail to disclose a pre-existing
medical
condition to Applicant before commencing employment (the first ground
of review); and secondly, in finding that reinstatement
was the
appropriate remedy in the circumstances (the second ground of
review).
[1]
[3]
Third Respondent’s
finding that First Respondent did not fail to disclose a pre-existing
medical condition, and his resultant
reinstatement award, were
arrived at in circumstances where Applicant’s representative at
the arbitration, a Mr Leonard Markus,
failed to present any evidence
under oath and failed to call any witnesses for Applicant at the
arbitration, despite Applicant
bearing the onus to prove that the
dismissal was fair. During the hearing of this matter, Mr Van As, for
the Applicant, correctly
conceded that Applicant’s case, as it
was presented at the arbitration, left “a lot to be desired”.
It is, therefore,
understandable that Applicant sought to raise a
further argument for this Court to consider: namely that Third
Respondent was deficient
in not having ensured that Mr Markus
traversed the evidence which he was required to lead. This line of
argument, intended to supplement
the above two grounds of review, is
based on the so-called “helping hand” cases. As argued by
Mr Van As, the Arbitrator
was under an obligation to warn Mr Markus
of the need to lead evidence and to assist him in that regard. It was
argued that the
Arbitrator should have ensured that Mr Markus led
evidence so as to prove that it would be reasonably impracticable
and/or a breach
of applicable mining occupational health and safety
legislation to employ First Respondent, as this was ostensibly most
pertinent
to the dispute being considered.
Was
it unreasonable for the Arbitrator to find that the employee did not
fail to disclose a pre-existing medical condition?
[4]
Before
answering this question, it should be pointed out that First
Respondent was expressly dismissed for alleged misrepresentation,
specifically having been accused of failing to declare his “previous
neck injury”. This was the charge contained in
the notice to
attend the disciplinary hearing.
[2]
This is distinguishable from a failure “to disclose a
pre-existing medical condition”, as formulated for the purpose
of Applicant’s first ground of review. The distinction might
seem irrelevant, overly technical or academic at first glance,
until
one realises that the employee’s case is that, although he
certainly did have a neck operation during 2005 (approximately
seven
years before completing the medical form) and he was admitted to
hospital (which fact he did disclose to Applicant in the
medical
form), for a period of three days during 2005, the employee’s
evidence was that he did not, in fact, have any injury
to his neck by
the time he completed the medical form during 2012. In other words,
the employee’s case is that the operation
(and the passage of
time) sorted out whatever injury may have required the operation to
his neck and so there was no
pre-existing
medical condition
that
required disclosure by the time the medical form was completed. By
contrast, Applicant’s first ground of review is premised
(and
its dismissal of First Respondent was premised) on the factual
assumption that the neck injury persisted in the form of a
continuing
“medical condition” which the employee was obliged to
specify in writing on the medical form, beyond merely
disclosing his
prior admission to hospital.
[5]
However one
characterises the alleged misrepresentation (which was clearly
alleged to be one of omission), the bottom line is that
the
Arbitrator did not find the employee guilty of any misconduct and
found that it had been unfair for the employer to dismiss
him in the
circumstances. In order to determine whether or not these were
unreasonable findings to make, one must weigh up the
evidence that
was placed before the Arbitrator.
[6]
The
evidence that was led under oath before the Arbitrator was that the
employee did not specify
the
reason
for
his hospital admission on the form (although he did disclose the
admission itself) as there was no space on the form to elaborate
in
that regard. He did, however, verbally disclose his previous neck
operation to one of the Applicant’s medical staff who
was
present when he completed the form and she advised him that it was
not necessary to disclose that level of detail, as that
information
concerning his neck operation was already on file with the Applicant.
This stemmed from the fact that the employee
had previously rendered
his services to Applicant (‘Assmang’) in 2006 (the year
following the neck operation) and so
the neck operation had already
been disclosed on that previous occasion.
[3]
The evidence was therefore that Applicant already had those details
on file when the employee completed the medical form during
2012.
[7]
This
evidence was confirmed under oath by Dr HTE Bohnen,
[4]
who was the occupational medical practitioner at the Blackrock Mine
during the period 2006 to 2012. Dr Bohnen crucially testified
that he
had been aware of the employee’s neck operation, that
Applicant’s medical staff were aware of the employee’s
medical history,
[5]
that
Applicant had been aware of the neck operation,
[6]
and that the neck operation had been disclosed in a “periodic
medical examination” form dating from 2006 (when the
employee
previously rendered his services to Assmang).
[7]
Dr Bohnen testified that the company was required to keep such
medical information on file for at least 40 years, thereby suggesting
that this written disclosure of 2006 continued to be accessible to
Applicant even in 2012. The weight of the evidence, as testified
inter
alia
by Applicant’s own occupational medical practitioner at the
relevant time, was that Applicant’s medical staff were
already
aware of the neck operation, that they therefore advised First
Respondent not to specify it on the one page form, and that
there was
therefore no wrongdoing on the part of First Respondent. This ties in
with the point already made above, that there was,
in any event, no
recurring or continuing
neck
injury
or “existing medical condition” that required detailing
to the extent subsequently argued by Applicant. None of this
evidence
was, or could be, controverted by Applicant at the arbitration, since
no evidence was led and no witnesses were called
in support of
Applicant’s case.
[8]
Mr Markus appears to
have pinned all of his hopes of proving that the dismissal had been
fair on an interpretation of the pre-placement
medical form itself,
but without leading any evidence to support his interpretation of
that form. It is trite that documents which
a party seeks to rely on
for the purpose of legal proceedings, no matter how crucial or
self-evident a document may seem to be,
can only have evidentiary
value relevant to the extent to which they are contextualised by a
witness who talks to the document
in question. Although an
examination of the pre-placement medical form may, in the absence of
anything else, reveal that the employee
failed to provide “complete
details” concerning
why
he was admitted to hospital, contrary to the instruction contained in
the form, it does not explain why the employee did not do
so (which
First Respondent did explain under oath) and it does not reveal
whether there was any wrongful intention to deceive (which
First
Respondent testified there was not) and it does not reveal whether,
if there was a misrepresentation, it was something material.
To the
extent to which Applicant dismissed First Respondent for misconduct,
all of these various considerations should have been
addressed by
Applicant, in order for Applicant to be able to prove that the
dismissal was fair. It is not sufficient to, by way
of inference,
merely point out that the employee failed to properly complete a form
and then expect the CCMA (or this Court) to
assume that such error of
technicality must automatically amount to a material
misrepresentation therefore justifying the employee’s
dismissal, but without leading any actual evidence to that effect.
[9]
If one compares the
weight of evidence on the one hand with the lack of contrary evidence
on the other hand, then it cannot be said
that Third Respondent
arrived at a conclusion which no reasonable decision-maker could have
reached in finding that the employee
did not fail to disclose a
pre-existing medical condition to Applicant. Indeed, if the
Arbitrator had found that there had been
a wrongful misrepresentation
on the part of the employee, despite no evidence of that having been
presented, then that surely would
have been a finding which no
reasonable decision-maker could have reached on the evidence.
[10]
Based on all of the
aforegoing, there is no basis to support Applicant’s first
ground of review.
Was
it unreasonable to reinstate First Respondent in the circumstances?
[11]
In
relation to the second ground of review, Applicant submitted that
Third Respondent
“
completely
disregarded the employee’s failure to lead evidence that his
pre-existing medical condition… was not sufficiently
serious
so as to prevent him from performing his duties and responsibilities
as a fitter and turner.”
[8]
[12]
Applicant
goes on further to say that
“
the
employee should have, at the very least, satisfied the Commissioner
that his pre-existing medical condition [a previous neck
operation]
would not prevent him from henceforth performing his duties and
responsibilities as a fitter and turner.”
[9]
[13]
This line of argument
is unconvincing for a number of reasons.
[14]
In the first instance,
this argument ignores the fact that where an employer chooses to
dismiss its employee for misconduct reasons,
the employer is the one
who then bears the onus to prove that the dismissal was fair. As
already pointed out above, the fundamental
problem of Applicant’s
case is that it failed to prove anything to justify its dismissal of
First Respondent and therefore
failed to discharge its burden of
proof. In circumstances where an employer fails completely to show
that it had a fair reason
to terminate the employment of an employee,
it cannot then, by way of intellectual sleight of hand, shift the
burden onto the employee
and require that employee to prove that he
should be retained in employment.
[15]
If
one considers the actual evidence that was led, this was to the
effect that there was no continuing neck injury.
[10]
More pertinently, in response to Mr Markus’ cross-examination,
Dr Bohnen testified that, even if there was a neck injury,
in his
professional opinion, it would not detrimentally affect the duties of
a fitter and turner, in particular that person’s
capacity to
pick up heavy objects.
[11]
[16]
The reality is,
therefore, that evidence was led to the effect that, even if the
employee had been suffering from a continuing neck
injury, this would
not affect his capacity to perform his duties as a fitter and turner.
This evidence, presented under oath by
an experienced medical
professional who was the occupational medical practitioner for the
Blackrock Mine for the period 2006 to
2012, was not disputed by
Applicant and Applicant did not present any evidence showing that the
employee suffered from a condition
that should preclude Applicant
from employing him. In fact, Applicant, at the arbitration, conceded
that First Respondent was medically
fit. At page 42 of the CCMA
Record Mr Markus says the following:
“
What
is not in dispute is Mr De Beer was medically fit and that is why he
was appointed. …Mr De Beer was declared fit. …Yes.
So
that is not in dispute…”.
[12]
There
can therefore be no medical reason, in the face of this evidence, why
First Respondent should not retain his employment.
[17]
Although passing
references were made in the arbitration and in these proceedings to
the ostensible legislative limitation placed
on Applicant by the
mining health and safety legislation, no attempt whatsoever was made
to point out to this Court which specific
statutory provision or
provisions would apply to First Respondent in the present
circumstances and where it is common cause that
he is, in any event,
medically fit, as indicated above.
[18]
If the failure to refer
this Court to applicable legislation was merely an oversight on the
part of Applicant, and such legislation
would truly preclude First
Respondent from being able to render his services to Applicant, then
the correct course of action would
be to deal with such a situation
by complying with our law on employee incapacity, particularly in
circumstances (such as the present)
where no misconduct was committed
by the employee.
[19]
The only question which
remains unanswered is the following: it was not disputed that First
Respondent rendered his services to
Applicant (Assmang) during 2006
and this was after the neck operation took place in 2005. Why then
was the First Respondent’s
medical condition and its attendant
legal ramifications not an issue then, yet this is presented to be an
insurmountable bar to
his reinstatement at this point in time?
[20]
The only remaining
basis upon which it could be argued that it would be inappropriate to
reinstate the employee would be a breakdown
of the trust relationship
between the parties. No evidence was led to show that the employee
was dishonest, that he had been deceptive
or that he acted in bad
faith in any form or manner. The only evidence that was led pointed
to the contrary. The employee did disclose
the fact that he had an
operation. If the employee’s intention had been to deceive the
employer, then why provide a partial
disclosure, since it would have
been more likely than not for the employer to query the reason for
the hospital admission during
the four months between the completion
of the form and the commencement of employment, especially if the
document and its contents
were indeed so material to, and
determinative of, the existence of the employment relationship, as
subsequently argued by the employer.
[21]
Although
in this case the employer did not lead any evidence to prove that the
trust relationship had broken down, this Court is
mindful of the
Labour Appeal Court’s recent Judgment in
Impala
Platinum Limited v Zirk Jansen & others
.
[13]
Although that Judgment accepts that the breakdown of the trust
relationship may be implied from the nature of a disciplinary offense
and it may, therefore, not be necessary for an employer to always
lead evidence to show that there was a breakdown in the employment
relationship, this can only happen where the employer has, of
necessity, first proven that the employee was guilty of gross
misconduct.
In the present case, however, gross misconduct has not
been proven, given the complete absence of evidence to that effect,
and
so there can be nothing to imply a resultant breakdown in the
trust relationship which would make it inappropriate or intolerable
for the employee to resume his employment at Applicant.
[22]
There is thus also no
basis to support Applicant’s second ground of review.
The
helping hand cases
[23]
Applicant’s
ultimate reliance on the so-called “helping hand cases”
would appear to betray a realisation that
the evidence led by
Applicant at the arbitration was wholly inadequate and incapable of
discharging the employer’s burden
of proof
[14]
.
[24]
Although
there may be situations where an arbitrator’s failure to assist
one of the parties may end up justifying the reviewing
and setting
aside of those arbitration proceedings, this needs to be considered
in the context of the following statements made
by Musi J in
Bafokeng
Rasimone Platinum Mine:
[15]
“
In
conclusion, it needs to be stated that whereas there is a duty on
arbitrators to provide guidance and assistance to lay litigants,
the
question of whether such duty arose and whether failure to carry it
out is an irregularity rendering an award reviewable is
a matter to
be decided with reference to the particular circumstances of each
case. Care should be taken not to straddle the fine
line between
legitimate intervention by an arbitrator and assistance amounting to
advancing one party’s case at the expense
of the other.
Otherwise we would be opening the flood gates allowing every lay
representative who has bungled his/her case to seek
its re-opening by
shifting the blame to the arbitrator. At the end of the day, the
cardinal question is whether the merits of the
dispute have been
adequately dealt with and fairly so in compliance with the provisions
of section 138 of the Labour Relations
Act. That question can best be
answered by considering the conduct of the arbitration proceedings as
a whole…”
[25]
In
the present matter, if one reads the transcript of the arbitration
proceedings from start to finish, there is nothing to suggest
that Mr
Markus was out of his depth, that he did not understand the process
and what was required of him at the arbitration. Mr
Markus quoted
extensively from the Labour Relations Act, presented lengthy argument
on Applicant’s behalf which show that
he was well aware of the
pertinent issues, and he cross examined both Dr Bohnen and First
Respondent in a relatively formal, legalistic
manner, which suggests
that he was apt and somewhat experienced in this regard. Mr Markus
does not come across in the transcript
as an inexperienced or
ignorant layperson who would need to be guided. Third Respondent did,
however, indicate to Mr Markus what
the employer was required to
prove albeit without telling him exactly how to go about doing so.
Third Respondent also specifically
asked Mr Markus whether he was
going to call any witnesses and he responded that he would only be
(cross) questioning the other
side.
[16]
Applicant therefore wilfully and consciously elected not to call any
witnesses, despite the Arbitrator having specifically asked
Mr Markus
this question.
[26]
Mr
Markus appeared in his capacity as the Industrial Relations
Superintendent of Applicant, a large mining company. In the
Bafokeng
Rasimone
case, Musi J makes the point that a large corporation
“
is
expected to be able to equip its representatives with enough
resources to enable them to conduct its arbitrations properly or
to
ensure that it is represented by people who are sufficiently
competent to do so.”
[17]
[27]
Based on all of the
above considerations, I am not convinced that there was a duty on
Third Respondent to do more than what he did
or that the arbitration
proceedings should be reviewed and set aside on that basis.
[28]
Third Respondent’s
arbitration award is not one which a reasonable decision-maker could
not make. There is no reason in law
why that award should be reviewed
or set aside. No compelling reason has been shown as to why Applicant
should not be required
to comply with the CCMA Award dated 31 March
2014 and why it should not retrospectively reinstate First Respondent
to its employ
with effect from 25 April 2014.
Order
In
the premises the following order is made:
1.
The review application
is dismissed with costs.
_________________
Ferreira,
AJ
Acting
Judge of the Labour Court
Appearances:
FOR
THE APPLICANT:
Advocate
MJ Van As
INSTRUCTED
BY:
Cliffe Dekker Hofmeyr
FOR
THE FIRST RESPONDENT: Gerhard Visser of Solidarity
[1]
Para 3 of Applicant’s Heads of Argument.
[2]
See page 1 of Bundle A.
[3]
See page 56 of the CCMA Record.
[4]
A medical professional in his field with more than 24 years’
experience.
[5]
See page 48 of the CCMA Record.
[6]
See page 51 of the CCMA Record, lines 4-13.
[7]
Page 7 of Bundle A.
[8]
As argued at paragraph 22 of Applicant’s Heads.
[9]
Paragraph 23 of Applicant’s Heads.
[10]
See page 66 of the CCMA Record, lines 27-28.
[11]
Page 53 of the CCMA Record, lines 13 – 26.
[12]
Lines 1 – 11.
[13]
Case number JA 100/14.
[14]
Which, if that is the case, would mean that there can be no merit to
both grounds of review suggesting that the Arbitrator arrived
at
unreasonable decisions.
[15]
Bafokeng
Rasimone Platinum Mine v CCMA & others
[2006] 7 BLLR 647
(LC), para 17.
[16]
Page 38 of the CCMA Record, at lines 25 – 28.
[17]
Supra at para 10.