About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 241
|
|
Oosthuizen v Commission for Conciliation, Mediation and Arbitration and Others (JR1722/13) [2017] ZALCJHB 241 (18 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no:
JR
1722/13
In
the matter between:
ANEL
OOSTHUIZEN
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
BONGANI
KHUMALO N.O. (cited in his
Capacity
as Commissioner for the CCMA)
Second Respondent
ABSA
BANK LIMITED
Third Respondent
Heard
:
03 May 2017
Delivered
:
18
May
2016
JUDGMENT
SALOOJEE,
AJ
Introduction
1.
This is an application to review and set
aside the second respondent’s (“
Commissioner’s”
)
arbitration award, which found that the applicant’s dismissal
was fair. The applicant also seeks to substitute the award
with a
finding that the applicant’s dismissal was unfair.
2.
At the commencement of the hearing, the
applicant’s representative confined the grounds of review to
the substantive unfairness
of the dismissal.
Background
3.
During November 2007, the third respondent
employed the applicant as a senior internal auditor.
4.
During February 2011, the applicant
informed the third respondent that she was not coping at work. The
applicant suffers from depression
coupled with attention deficit
disorder, the applicant took extended sick leave from 20 May 2011 to
4 September 2011. However,
the applicant did not return to work on 5
September 2011 and extended the sick leave by two weeks.
5.
Upon her return, the applicant requested
support from the third respondent by invoking the terms of the
Wellness Policy. The applicant
indicated that she was not coping at
work and intended to discuss the impact of being away from work for
more than three months.
6.
The applicant’s supervisor, its
in-house doctor and other employees held six meeting with the
applicant over the next few
months. After one of the initial meetings
and on the applicant’s request, the third respondent decreased
the applicant’s
workload.
7.
On 6 October 2011, the third respondent’s
in-house doctor requested the applicant’s psychiatrist to
supply a medical
report on the applicant’s condition,
medication, prognosis and further management.
8.
The applicant’s psychiatrist supplied
a brief report on 24 October 2011 stating that the applicant was
diagnosed and receiving
treatment. Further, that the applicant’s
condition had improved and the prognosis was good.
9.
During one of the later meetings between
the applicant and the third respondent’s representatives, the
applicant made a request
to work from home and reintegrated into the
workplace at a later stage. In response, the third respondent
recommended that the
applicant be placed on temporary disability
leave for a period of six months.
10.
On 19 December 2011, the applicant rejected
the third respondent’s offer to be placed on temporary
disability leave.
11.
Despite returning to work, the applicant
continued to suffer from the ill effects of her conditions. This
resulted in the applicant
leaving early from work or not attending
work. The applicant did not submit leave forms nor did she capture
the leave taken on
the third respondent’s software system until
early January 2012.
12.
During this period the applicant’s
supervisor, Rudy Lingenfelder (“
Lingenfelder”
)
observed that the applicant excessively used the Internet facilities
for purposes other than the third respondent’s business.
13.
Lingenfelder conducted an investigation
into the applicant’s Internet usage and absence from work and
on 30 January 2012 the
applicant was suspended from work.
14.
On 15 February 2012, the applicant was
formally charged with four acts of misconduct relating to:
14.1
Acting irregularly and/or dishonestly in
respect of attending work and abuse of position of trust.
14.2
Failing to adhere to Barclays policies and
procedures.
14.3
Abuse of Barclays IT resources and/or a
breach of the email security policy and information security policy;
and
14.4
Absenteeism without permission for failing
to submit leave forms and/or capture leave taken on the Barclays
software system for
twenty-seven days between September 2011 to
January 2012.
15.
The applicant was found guilty on all of
the charges and dismissed on 15 March 2012. The applicant then
referred an unfair dismissal
dispute to the CCMA.
16.
The Commissioner found that the applicant’s
dismissal was procedurally and substantively fair. The Commissioner
also made
a credibility finding against the applicant whom he found
to be an unimpressive witness. The applicant was found to have made
material
concessions during cross-examination and changed her version
in order suit the occasion. The applicant then filed this
application.
Analysis
17.
At the hearing, the applicant’s
representative confined the grounds of review to substantive
fairness, in that, the Commissioner
did not properly consider all of
the facts of the case, did not attach appropriate weight to all of
the factors of the case, acted
unreasonably, failed to conduct a
proper hearing in terms of the LRA, exceeded his powers in terms of
the LRA and acted
ultra vires
,
did not apply his mind to all of the facts and failed to assess all
of the evidence before him.
18.
The standard on review is set out in
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[2007]
12 BLLR 1097
(CC)
at par. 110
:
“
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?”
19.
In
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at par. 15-16
,
the Labour Appeal Court stated the requirements for a successful
review:
“
What
is required is first to consider the gross irregularity that the
arbitrator is said to have committed and then to apply the
reasonableness test established by
Sidumo.
The
gross irregularity is not a self-standing ground insulated from or
standing independent of the
Sidumo
test.
That being the case, it serves no purpose for the reviewing court to
consider and analyse every issue raised at the arbitration
and regard
a failure by the arbitrator to consider all or some of the
issues
albeit
material
as rendering the award liable to be set aside on the grounds of
process-related review.
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.”
20.
In
Head
of the Department of Education v Mofokeng and others
[2015]
1 BLLR 50
(LAC) at par. 30-31
, the
Labour Appeal Court held that:
“
[30]
The failure by an arbitrator to apply his or her mind to issues which
are material to the determination of a case will usually
be an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in Herholdt v Nedbank Ltd and this court in Goldfields
Mining South
Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that
before such an irregularity will result in the
setting aside of the
award, it must in addition reveal a misconception of the true enquiry
or result in an unreasonable outcome.
[31] The determination of whether a
decision is unreasonable in its result is an exercise inherently
dependant on variable considerations
and circumstantial factors. A
finding of unreasonableness usually implies that some other ground is
present, either latently or
comprising manifest unlawfulness.
Accordingly, the process of judicial review on grounds of
unreasonableness often entails examination
of inter-related questions
of rationality, lawfulness and proportionality, pertaining to the
purpose, basis, reasoning or effect
of the decision, corresponding to
the scrutiny envisioned in the distinctive review grounds developed
casuistically at common law,
now codified and mostly specified in
section 6 of the Promotion of Administrative Justice Act (“PAJA”);
such as failing
to apply the mind, taking into account irrelevant
considerations, ignoring relevant considerations, acting for an
ulterior purpose,
in bad faith, arbitrarily or capriciously etc. The
court must nonetheless still consider whether, apart from the flawed
reasons
of or any irregularity by the arbitrator, the result could be
reasonably reached in light of the issues and the evidence. Moreover,
judges of the Labour Court should keep in mind that it is not only
the reasonableness of the outcome which is subject to scrutiny.
As
the SCA held in Herholdt, the arbitrator must not misconceive the
inquiry or undertake the inquiry in a misconceived manner.
There must
be a fair trial of the issues.”
21.
The judgment in
Independent Municipal
and Allied Trade Union obo Strydom v Witzenburg Municipality and
Others (CA 08/08)
[2012] ZALAC 1
;
[2012] 7 BLLR 660
(LAC); (2012) 33
ILJ 1081 (LAC) (13 February 2012) at par. 27-29
dealt with an
incapacity case rising from illness. The court set aside the award on
this basis:
“
[27]
In my view, the question posed and the aforementioned remarks made by
the court a quo were misplaced
as they did not take the following
facts into account: firstly, none of the medical reports that were
submitted claimed that the
employee was permanently disabled or
incapacitated. Secondly, there was a substantial lapse of time (a
period of six months) between
the application for medical boarding
and the incapacity enquiry, such that by the time the arbitration
hearing was held, the employee
had, according to Dr. Kalinski
recovered from his mental condition and could resume duties. Under
such circumstances, there was
no basis for finding that the employee
was permanently incapacitated or that he could not reasonably be
accommodated by the employer.
[28] In
addition to the above, it is patently clear from the award that the
commissioner did not pay due
regard to items 10 and 11 of Schedule 8
and thus failed to comply with section 188(2) of the LRA, which
non-compliance has already
been alluded to in the preceding
paragraphs. This is another reason why the award fell to be set
aside, which the court a quo did
not do.
[29] I am
satisfied that the decision of the commissioner was not one that a
reasonable decision-maker
could have reached under the circumstances
and ought to have been set aside by the court a quo and substituted
with an order that
the dismissal of the employee was both
substantively and procedurally unfair. The court a quo therefore
erred in coming to the
opposite conclusion. In view of this finding,
which is dispositive of the matter, I do not deem it necessary to
address myself
to the aspect pertaining to the errors made by the
court a quo in its summation of the evidence adduced at the
arbitration hearing,
which allegedly led it to make fundamental
errors of fact.”
22.
The principal issue before the Commissioner
was whether the applicant was unfairly dismissed. The Commissioner
correctly identified
and considered the principle issue, whether the
applicant was unfairly dismissed. The Commissioner did not confuse
the applicant’s
principal defence, that the third respondent
should have reasonably accommodated her medical conditions, as an
incapacity hearing.
23.
On the second requirement, whether the
Commissioner evaluated the facts presented at the hearing, the
applicant’s complaints
require attention.
24.
The applicant’s complaints are that
the Commissioner incorrectly understanding or capturing the
applicant’s evidence.
On a reading of the transcript, the
applicant’s complaints, set out in paragraph 92 of the
supplementary founding affidavit,
are nugatory.
25.
In
Smith
v Commission for Conciliation
,
Mediation
& Arbitration & others (2004) 25 ILJ 1072 (LC) at par.
7-8
in
relation to a gross irregularity, Ntsebeza AJ stated:
“
[7]
An arbitrator commits a gross irregularity if in inter alia,
his/her conduct is such
that an inference can be drawn therefrom that
the aggrieved applicant did not get a proper hearing. If for example
a commissioner
commits a very serious mistake in a manner that also
reflects that he/she cannot be said to have applied his or her mind,
his/her
award is reviewable. (See County Fair Foods (Pty) Ltd
CCMA (1999) 20 ILJ 2609 (LAC).)
A commissioner, furthermore, exceeds
his/her powers if he/she makes findings that are not justified by
evidence. If that is such
that it leads him/her to draw inappropriate
inferences, it would render an award reviewable.
[8]
However, a mistake, however gross, is not misconduct. It must be so
gross or manifest
that it could have been made without misconduct
before a court could justify drawing an inference that an arbitrator
misconducted
himself or herself. (See Hyperchemicals
International (Pty) Ltd & another v Maybaker
Agrichem (Pty) Ltd
&
another 1992 (1) SA 89 (W); Zaayman v
Provincial Director: CCMA, Gauteng & others (1999)
20 ILJ 412 (LC),
[1999] 1 BLLR 92(LC).)
”
26.
The applicant’s complaints should be
the basis of which the grounds of review are founded. However, the
applicant’s
complaints do not support the grounds of review and
do not suggest that the applicant did not receive a proper hearing.
Also, there
is no ground of review to demonstrate a latent or
manifest unlawfulness in the arbitration award.
27.
Thus, there is no gross reviewable
irregularity in the arbitration award and the Commissioner’s
conclusion is reasonable in
terms of the evidence presented at
arbitration. There is also no reason to interfere with the
Commissioner’s credibility
findings, which appear to be
justified.
28.
Lastly, the applicant relied on the Labour
Appeal Court judgment in
Transnet
Rail Engineering v Mienies & others
[2015] 11 BLLR 1144
(LAC)
as a defence and as a mitigation of sanction. This ties in with the
applicant’s request to work from home and later reintegrate
into the workplace as a result of her medical conditions.
29.
The third respondent granted the applicant
extended sick leave from 20 May 2011 to 4 September 2011, the
applicant then extended
this leave by an additional two weeks. Upon
her return to work, the applicant invoked the Wellness Policy and the
third respondent’s
representatives held six meetings with the
applicant to reduce the applicant’s workload and to discuss
other alternatives.
30.
The third respondent’s in-house
doctor also communicated with the applicant’s psychiatrist. The
applicant’s psychiatrist
provided a report, which stated that
the applicant’s prognosis was good.
31.
The third respondent further offered the
applicant six months temporary disability leave to attend to her
medical conditions, which
the applicant rejected.
32.
This facts of this application are
distinguishable from the Transnet case, above, as the third
respondent was reasonable in accommodating
the applicant with
extended sick leave, reducing her workload and offering the applicant
an additional six months temporary disability
leave.
33.
Pertinently, at arbitration, the applicant
did not address whether she would be able to cope with the reduced
workload if she worked
at home. Thus, the applicant’s defence
that due to her medical conditions the third respondent should have
reasonably accommodated
her request to work from home is
unsustainable.
Conclusion
34.
The applicant has not demonstrated reasons
to review and set aside the arbitration award and the application
should fail.
35.
The usual order in this court is for each
party to pay its own costs. There is no reason to depart from this
practice.
Order
36.
In the premises the following order is
made:
a.
The application is dismissed.
b.
Each party to pay its own costs.
______________________
Saloojee,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Linda Erasmus
Instructed
by
:
De Beer
Minnaar Inc
For
the Respondent:
Pranisha Pillay
Instructed
by:
Cliff Dekker Hofmeyer Inc