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[2017] ZALCJHB 348
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Exarro Coal (Pty) Ltd t/a Grootgeluk Coal Mine v Maduma and Others (JR1524/2015) [2017] ZALCJHB 348; (2017) 38 ILJ 2531 (LC) (29 September 2017)
REPORTABLE
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Case
no: JR 1524/2015
In
the matter between:
EXARRO
COAL (PTY) LTD T/A
GROOTGELUK
COAL MINE
Applicant
and
ESSAU
MADUMA
First
Respondent
COMMISSIONER
MELLO
N.O.
Second
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION & ARBITRATION
Third
Respondent
Heard
:
07 September 2017
Delivered
:
29 September 2017
Summary:
(Review – incapacity – ill health – cause and
nature of lung disease undetermined at
time of dismissal –
failure to determine same affected substantive and procedural
fairness of dismissal despite employee’s
inability to perform
his current occupation at the time - relief of reinstatement not
justifiable on evidence – substituted
with compensation)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is a review application of an arbitration award. The arbitrator
had decided that the dismissal of Mr E Maduma (‘Maduma’),
a process controller, on 4 July 2014 on account of medical incapacity
was procedurally and substantively unfair. He ordered the
retrospective reinstatement of Maduma into another post of team
leader. Subsequently, he varied his award by substituting the post
of
team assistant for team leader.
Background
[2]
At the time of his dismissal, Maduma suffered from a lung disease
which the employer maintained prevented him from performing
his
duties because he worked in a dusty area and no suitable alternative
post was available.
[3]
After a prolonged absence from work starting in March 2014, a medical
incapacity process commenced in June 2014.
[4]
According to the evidence of a report from Maduma’s own
specialist, Dr Abdullah (a pulmonologist) he was suffering from
a
non-specific interstitial lung disease with emphysema. According to
the same specialist, further tests were necessary to determine
the
cause of the disease, such as a lung biopsy but these were never
performed. The other specialist who examined Maduma was a
physician,
Dr Khan, who concurred with Dr Abdullah’s diagnosis and mention
that “as a result of his diagnosis he [Maduma]
remains
symptomatic with persistent dyspenea [shortness of breath] even at
rest. His diagnosis would limit his ability to be gainfully
employed
as results in excessive absenteeism. He may be considered for light
duties.”
[5]
In early June 2014, Maduma was assisted in applying for disability
insurance benefits from the Provident fund and the fund’s
medical assessors ultimately determined that his disability ranged
from 40 to 59%, but that his status might change if new information
became available. Dr Emslie, the Occupational Medical Practitioner of
the applicant testified that he wanted to report Maduma’s
case
to the Mine Bureau for Occupational Diseases (MBOD) but that he
needed the final report from the pulmonologist to determine
the cause
of the lung disease, which in turn would dictate whether it was
reportable or not. He was also aware that the applicant’s
medical aid would not pay for the biopsy. He further testified that
they had tried to get Maduma to participate in the occupational
health investigation which they were bound to conduct whenever any
occupational disease was suspected, but he refused to cooperate.
Dr
Emslie claimed that he explained to Maduma that it was possible that
if Maduma cooperated with the investigation that, the MBOD
might
offer to pay for the biopsy as had happened in the past with other
cases. Dr Emslie had also arranged for Maduma to be admitted
to
hospital for evaluation of his shortness of breath by a cardiologist,
but nothing wrong could be found with the condition of
his heart.
[6]
Dr Emslie had concluded on the basis of his own assessment that
Maduma could not continue to perform his own work and the decision
that he was medically incapacitated was based on the report obtained
from the Provident fund, which rated his disability ranged
between 40
and 59%. He had encouraged Maduma to obtain a biopsy report and to
appeal against the disability rating to try and increase
it. The
biopsy report would have helped to determine if the cause of the
illness was treatable. At the time the applicant was dismissed,
Dr
Emslie said Maduma could barely walk a short distance without having
to sit but he appeared to be much better at the time of
the
arbitration, which he attributed to him having received treatment for
an unrelated illness which might have affected his lungs.
Dr Emslie
pointed out that a number of other causes might have resulted in
Maduma’s lung condition but without further analysis,
it was
not possible to determine the cause or prognosis for recovery.
[7]
On 4 July 2014 a medical panel board concluded that Maduma was
permanently medically unfit for work and he was dismissed for
incapacity with effect from 7 July.
[8]
Prior to Maduma’s dismissal, two incapacity meetings have been
held with him and his trade union on 3 June and 25 June
2014.
Evidence was provided that none of the vacant posts which existed at
the time were suitable for Maduma either because he
did not have the
minimum qualification for the post or the vacancies were also in
dusty areas. In particular, a post of a team
assistant was unsuitable
because he would still have to work in a warehouse where there was
dust and further did not have the minimum
qualifications for that
post, namely a Grade 12 certificate and two to three years’
experience in the supply chain field,
contract administration or
finance. Two possible alternative clerical positions existed, one of
which was at a different location
in another business unit, Ferro
Alloys. Ferro Alloys was part of the same group of companies as the
applicant but was an independent
operational entity. Ms S Otto
(‘Otto’), an HR practitioner, agreed that Maduma had
previously been transferred to the
applicant following the normal
transfer procedures from another mine, but that when it came to
medical redeployment, the applicant
could not impose that “across
businesses”. The individual would have to apply vacancies in
other business units himself.
The Ferro-Alloys post of a receiving
clerk, could have been offered to the applicant if the post had been
a vacant post on the
applicant’s establishment, though it was a
post at a lower rate of pay.
[9]
The other potential position was that of a supply chain clerk at the
applicant’s own premises. However, that was also
deemed
unsuitable post because it was on a higher grade and also because it
would have involved work in the warehouse which was
a dusty area.
Otto testified that, according to the Department of Mineral Resources
(DMR), the whole mine was classified as a dusty
area and therefore
the disability report of 22 June compiled for the applicant’s
insurer (Santam), which indicated that Maduma
“cannot work in a
dusty area but should still be possible to do office bound work like
access control, refreshment officer,
filing storeman”, did not
support Maduma’s claim at the arbitration. There would have
been no problem in employing
him to work in the supply chain clerk
position. Dr Emslie testified that he had not been specifically asked
to investigate the
suitability of particular positions, but in the
incapacity hearing meetings they have discussed areas in which Maduma
might be
utilised. His own view at that stage was that Maduma could
perform office work, but as a team assistant or procurement clerk he
would be required to move around, climb steps and work in the
warehouse itself. At that stage, Maduma’s shortness of breath
was such that he would not have been able to walk from the gates to
an office in the warehouse. If there was a post where he could
sit in
an office in a dust free area without having to move around that
might have been a feasible job. In his own testimony, Maduma
volunteered that a team assistant would sometimes be required to
drive the forklift or help receive or issue items in the stores.
[10]
The employer conceded that dust levels in the office workshop, stores
and other areas of the mine were not the same, but contended
that
work in any dusty area was untenable for Maduma.
The arbitrator’s
reasoning
[11]
The arbitrator found that the employer had conceded in the
arbitration that even though a post of a buyer was at a higher level
(Maduma was employed at level P4 and the position of a buyer was
level A3 which was one level higher), Maduma had previously acted
in
such a position (when he was working for another associated business
unit) Maduma contended that he had never been made aware
of vacancies
available at the employer during the incapacity meetings. However, he
believed he could perform the duties of a team
assistant (a clerical
post situated in the warehouse on the same post level occupied by
Maduma at the time) or those of a receiving
clerk. He saw no reason
why an arrangement could not have been made to transfer him to an
associated business unit of the Exarro
Company in the same way that
he had previously been transferred from another associated company to
the applicant.
[12]
Maduma contended that his dismissal was substantively and
procedurally unfair because the employer had failed to conduct a
proper medical investigation to determine the extent of his
incapacity and had failed to offer him a suitable alternative post
which was available at the time of his dismissal.
[13]
The arbitrator found the duty to investigate the first respondent’s
medical condition lay with the employer and the employer
did not
conduct any medical investigation of its own prior to the dismissal,
but based its decision on reports obtained from Maduma’s
own
doctors. Maduma’s own specialist had rendered an incomplete
diagnosis because further tests were required to determine
the cause
of the illness and the extent to which it was treatable. The
arbitrator also found that Maduma had been unable to obtain
a final
report from his specialist because he had exhausted his medical aid
and his salary had been stopped, owing to his sick
leave being
exhausted. Consequently, the arbitrator concluded that at the time of
Maduma’s dismissal, it had not been determined
whether or not
his capacity was temporary or permanent and therefore no conclusion
could be reached on the nature and degree of
his ill health. His
dismissal had been based on inconclusive reports.
[14]
The arbitrator also accepted Maduma’s evidence that the offices
where team assistants worked, were dust free areas and
were already
functioning before he was dismissed. In addition, the arbitrator
found that his evidence that he was qualified for
the post of a team
assistant having performed the job for 11 years prior to 1996 when he
was still working for another company,
and that he had acted in the
position of plant foreman whilst working for the applicant was
unchallenged. Moreover, the arbitrator
held that the applicant’s
own witnesses had conceded that Maduma had acted in the position of a
buyer which was more senior
to that of a team assistant.
[15]
The arbitrator concluded that Maduma ought to have been given the
position of a team assistant, which was on the same level
as his own
position and the fact that he did not have a grade 12 certificate was
not material because his own position also required
that, yet he had
been employed in that post. Of particular importance was the fact
that Maduma had performed work in more senior
positions than that of
a team assistant and consequently, there was no convincing reason why
he could not have been appointed to
that position.
[16]
In dealing with the procedural fairness of the dismissal the
arbitrator found, in the absence of obtaining a final medical
report,that the incapacity meetings convened by the employer were
meaningless and it was merely going through the motions of conducting
a proper procedure. As such, the employer had not complied with the
code on incapacity hearings which provides that the employee’s
prognosis and the extent to which the employee is capable of
performing work should be discussed before dismissal is considered.
Consequently, the arbitrator found the dismissal was also
procedurally unfair.
[17]
The arbitrator decided to reinstate Maduma not in his former position
as a process controller but in the position of a team
assistant
taking into account Maduma’s contentions that the post was at
same level he previously occupied, entailed clerical
work, did not
involve any heavy duty work and was situated in a dust free area. The
arbitrator awarded Maduma 13 months’
remuneration as
compensation, which he offset against incapacity benefits already
received by Maduma.
Grounds of review
[18]
The main thrust of the review is to attack the reasonableness of the
arbitrator’s findings based on the lack of evidence
to support
them or that he misconstrued the evidence before him. In summary, the
employer claims:
18.1 First Ground: The
arbitrator failed to appreciate that at the time of Maduma’s
dismissal, the team assistant post was
still performed in a dusty
area and the situation had only changed by the time the arbitration
took place. The applicant contends
that the arbitrator simply ignored
lengthy testimony from Ms Otto and Dr Emslie and that Maduma himself
had conceded that the team
assistant post had only been relocated to
the dust free area towards the end of 2014.
18.2 Second Ground: The
arbitrator misconstrued the fact that Maduma’s evidence that he
had previously held the position of
a team assistant was not
contested, because this version was never put to the applicants’
witnesses to rebut, even though
Maduma was represented by an attorney
in the arbitration proceedings.
18.3 Third Ground: In
deciding that the employer had failed to conduct a medical
investigation into Maduma’s illness, the
arbitrator ignored the
evidence that Maduma had failed to cooperate with the employer when
it had attempted to do so. It was for
that reason that the employer
had no alternative but to rely on the medical reports of Maduma’s
own doctors, which he had
filed. Moreover, those reports had
confirmed that Maduma was permanently unfit to perform his existing
duties as a process controller.
18.4 Fourth Ground: In
determining that the company had merely been going through the
motions of the procedure in order to dismiss
Maduma, the arbitrator
had simply ignored that it was Maduma’s union which had
requested the company to initiate the incapacity
proceedings.
18.5 Fifth Ground:
Lastly, there was no basis for the arbitrator reinstating Maduma in
the position of a team assistant because
there was no evidence before
the arbitrator that such a vacancy existed and the employer could not
even comply with that part of
the order. Moreover, it claimed that
the arbitrator ignored the fact that Maduma had not disputed that he
lacked the qualification
of a grade 12 certificate to perform that
work. There had also been evidence that the position required
previous experience in
the supply chain field, contract
administration or finance.
[19]
Maduma denies that Miss Otto lacked the expertise to testify on the
dust conditions applicable to the team assistant’s
post. The
applicant retorts that, Dr Emslie also testified about the
conditions. Maduma also maintained that he “did participate
and
cooperate with medical requirements lodged by the applicant”,
but never cross-examined Dr Ensley on this issue.
[20]
In his own evidence in chief, Maduma cited a number of reasons why he
believed Dr Emslie said he was un-co-operative, because
Dr Emslie
would not agree to give him a letter undertaking that he would be
taken back at work if he agreed to return to Dr Abdullah
and undergo
a biopsy nor would they give him the Provident fund medical report.
However, he also agreed that he would not assist
in completing the
DMR report because Dr Emslie said he was doubtful that he could have
got the disease from mine dust when he had
only worked for the
applicant for five years. In his answering affidavit, Maduma did not
mention any of these claims, or state
in what respect he had complied
with the applicant’s attempts to investigate his illness save
to say that he never refused
to do so.
[21]
The medical reports the applicant had been provided with indicated
only that he should be placed on light duty, which did not
imply that
he was medically unfit, but rather implied that reasonable
accommodations should have been made. The decision to dismiss
him was
based on inconclusive medical reports and the applicant had failed to
establish whether his incapacity was temporary or
permanent in
nature, or the nature of his illness and its gravity. Another strand
in Maduma’s response was to tackle the
applicant for failing to
make reasonable accommodations so that he could continue working
rather than being dismissed.
Evaluation
[22]
The grounds of review are evaluated below, but not in the same order
they were raised. Before embarking on the analysis, it
is worth
reiterating the guidelines for dismissals for incapacity on account
of ill-health. Items 10 and 11 of LRA Schedule 8:
Code of Good
Practice : Dismissal dealing with dismissals for incapacity on
account of ill health or injury state:
“
10. Incapacity:
Ill health or injury
(1)
Incapacity on the grounds
of ill health or injury may be temporary or permanent. If an employee
is temporarily unable to work in
these circumstances, the employer
should investigate the extent of the incapacity or the injury. If the
employee is likely to be
absent for a time that is unreasonably long
in the circumstances,
the employer should investigate all the
possible alternatives short of dismissal
. When alternatives are
considered, relevant factors might include the nature of the job, the
period of absence,
the seriousness of the illness or injury
and the possibility of securing a temporary replacement for the ill
or injured employee. In cases of permanent incapacity, the
employer
should ascertain the possibility of securing alternative employment,
or adapting the duties or work circumstances of the
employee to
accommodate the employee’s disability.
(2)
In the process of the
investigation referred to in subsection (1) the employee should be
allowed the opportunity to state a case
in response and to be
assisted by a trade union representative or fellow employee.
(3)
The degree of
incapacity is relevant to the fairness of any dismissal. The cause of
the incapacity may also be relevant
. In the case of certain kinds
of incapacity, for example alcoholism or drug abuse, counselling and
rehabilitation may be appropriate
steps for an employer to consider.
(4)
Particular consideration
should be given to employees who are injured at work or who are
incapacitated by work-related illness.
The courts have indicated that
the duty on the employer to accommodate the incapacity of the
employee is more onerous in these
circumstances.
11. Guidelines in cases
of dismissal arising from ill health or injury
Any person determining
whether a dismissal arising from ill health or injury is unfair
should consider-
(a) whether or not the
employee is capable of performing the work; and
(b) if the employee is
not capable-
(i) the extent to which
the employee is able to perform the work;
(ii) the extent to which
the employee's work circumstances might be adapted to accommodate
disability, or, where this is not possible,
the extent to which the
employee's duties might be adapted; and
(iii) the availability
of any suitable alternative work.”
[23]
In
General
Motors (Pty) Ltd v National Union of Metalworkers of SA on behalf of
Ruiters
[1]
,
the late Ndlovu AJ reaffirmed a view previously expressed by the LAC
thus:
“
[34]... In
IMATU
obo Strydom v Witzenberg Municipality & others
, this court
(per Molemela AJA, as she then was) stated:
'[7] I must mention that
I have no doubt in my mind that permanent incapacity arising from
ill-health or injury is recognized as
a legitimate reason for
terminating an employment relationship and thus an employer is not
obliged to retain an employee
who is permanently incapacitated if
such employee's working circumstances or duties cannot be adapted. A
dismissal would under
such circumstances be fair, provided that it
was predicated on a proper investigation into the extent of the
incapacity, as well
as a consideration of possible alternatives to
dismissal.
[8] The aforementioned
obligations of the employer as set out in items 10 and 11 of schedule
8 to the LRA are interrelated with
similar obligations in the
Employment Equity Act 55 of 1998
. In their work Employment Equity Law
(2001) 7-3 to 7-4, J L Pretorius et al submit that the duty of
reasonable accommodation of
employees by employers is not confined to
the
Employment Equity Act but
"is a duty that is implied in the
concept of unfair discrimination in a general sense" and "is
one of the judicial
and legislative tools for realising substantive
equality". I agree with this submission. Surely non-compliance
with such an
important constitutional imperative would not only
impact on procedural fairness but on the substantive fairness of the
dismissal
as well?
[9]
I
am of the view that the provisions of items 10 and 11 are
inextricably tied and thus non-compliance therewith would render a
dismissal both procedurally and substantively unfair
.'
“
[2]
(emphasis added)
First and Second grounds
[24]
The record shows that the team assistant post, which was a clerical
post performed in the warehouse had previously been located
in the
old warehouse which was in a dusty location. It was only at the end
of 2014 that the warehouse relocated to a less dusty
area. The
arbitrator appears to have ignored the evidence that at the time of
Maduma’s dismissal, the position would have
entailed him
working in the old warehouse environment. In any event, the new
warehouse was still situated in a dusty area. Otto
also testified
that the determination of the medical requirements of a post in terms
of the Mine Health and Safety Act 29 of 1996
(MHSA) was linked to the
post though the location of the post might affect that determination.
However, she conceded she was not
qualified to comment on that.
[25]
I agree that the arbitrator’s finding that the applicant ought
to have placed Maduma in a team assistant post could not
be
reconciled with the evidence that at the time of his dismissal, the
new warehouse was not operational. Insofar as he simply
chose to
believe Maduma, he ought to have set out the basis for finding him a
more credible witness than Dr Emslie and Otto. The
transcript of
Maduma’s evidence, his changing versions on why the company
construed that he refused to co-operate, and his
failure to put
versions to the applicant’s witnesses ought to have raised
severe doubts in the arbitrator’s mind about
the reliability of
his testimony. It is important in this regard that he never directly
challenged the applicant’s witnesses
on their evidence that the
old warehouse and new warehouse were both dusty work environments
even if the degree of dust differed.
He also did not dispute Emslie’s
testimony that he could barely move a short distance without having
to sit down and that
his duties as a team assistant were not all desk
bound. The arbitrator also without justification ignored that Maduma
had not raised
his alleged previous experience as a team assistant
with the applicant’s witnesses, and instead accorded it the
status of
uncontested evidence.
[26]
The arbitrator’s effective conclusion that placing Maduma in a
team assistant position was a suitable alternative to
dismissal could
not reasonably be sustained on the evidence before him.
Fifth ground
[27]
In ordering that Maduma be reinstated in a post of a team assistant,
the arbitrator ought at least to have been satisfied that
Maduma met
the requirements of the post. The arbitrator’s reasoning in
ignoring the minimum educational qualifications was
that Maduma did
not meet the minimum educational qualifications for the post of
process controller which he had occupied and which
was on the same
level. I do not understand how it follows that because he might be
able to perform the job of a process controller
without the minimum
educational qualification, he necessarily also would have been able
to perform the job of a team assistant,
without further evidence why
the grade 12 certificate was really unnecessary. In any event, there
was no evidence even from Maduma
that he had the “essential/minimum”
two to three year experience in the supply chain field or in contract
administration
or finance. Lastly, with a question mark still hanging
over whether Maduma ought to work in a dust free area and whether he
could
perform the other warehouse tasks of a team assistant which
were not deskbound, the arbitrator’s appointment of Maduma to
the position of team assistant was based more on speculation about
his suitability than the evidence before him could support.
[28]
Consequently, even if the arbitrator had been correct that the
employer had failed to establish that Maduma’s incapacity
warranted his dismissal, the remedy chosen by the arbitrator could
not be reasonably justified on the evidence.
Third Ground
[29]
The investigation which Maduma failed to cooperate with was the
Occupational Disease Investigation into whether he was suffering
from
a suspected occupational disease. It is true that the applicant did
request Maduma to obtain a final report from the pulmonologist,
which
would necessarily have entailed him undergoing a lung biopsy. Dr
Emslie also advised Maduma that if he co-operated with the
investigation, that the MBOD
might
fund a lung biopsy. This
evidence was not disputed. However, there was no evidence that the
applicant offered to pay for that examination
in order to ascertain
the cause and nature of the lung disease. Clause 14.1 of the
applicant’s disability policy states that
it is entitled to
request a disabled employee to be tested to determine his ability or
disability in order to accommodate him.
In so far as the applicant
gave effect to this, it did so by placing the onus on Maduma to do so
without offering to pay for it,
whereas it knew that he could not
afford such a test at that stage. It appears to be common cause that
without the biopsy, the
permanent nature of his disability could not
be determined. The applicant then relied on Maduma’s failure to
co-operate with
the occupational disease investigation as ending its
obligations to make any further attempt to determine the cause of his
illness
and consequently the nature and extent of his incapacity, in
particular whether it was of a permanent or temporary nature.
[30]
Thus as things stood, in the absence of the medical diagnosis being
finalised, Maduma was unable to perform his existing occupation
and
it would have been irresponsible for the employer to have placed him
in another occupation where he would still have been exposed
to dust.
The only vacancies available at its operations entailed a risk of
dust exposure. Moreover, none of the jobs were entirely
desk bound.
Maduma did not dispute Dr Emslie’s evidence that he could not
walk any distance without sitting down, owing to
his shortness of
breath.
[31]
As it turned out, by the time Maduma appeared at the arbitration Dr
Emslie readily volunteered that Maduma’s condition
appeared
much improved. This tends to suggest, with the benefit of hindsight,
that Maduma’s condition was treatable and possibly
not
permanent. Had Maduma undergone a biopsy, it is possible that this
prognosis might have been made at the time and, instead
of dismissing
him, an appropriate accommodation such as leave of absence with an
undertaking to review his position after treatment
might have been
reached.
[32]
Was the arbitrator unreasonable in holding the applicant responsible
for not concluding the medical investigation? The arbitrator
accepted
that Maduma was incapacitated, but rightly held that the temporary or
permanent nature of his incapacity was unknown and
that the dismissal
was based on the inconclusive medical reports of Dr’s Khan and
Abdullah. The applicant criticises the
arbitrator because he failed
to ask whether the failure to complete the medical investigation was
due to the employer or the employee.
It might be that he considered
this an irrelevant issue and that the sole question was whether the
medical investigation had been
concluded.
[33]
However, the implication of such an approach would mean that if an
employee thwarted an employer’s reasonable attempt
to
investigate the cause of his incapacity, the employee could make a
fair dismissal impossible. It stands to reason that where
the
employer is thwarted in its efforts to conduct an investigation into
the cause of an employee’s incapacity on account
of illness,
the employer cannot be held responsible for not ascertaining it.
[34]
It is self-evident Maduma did not have the means to fund a complete
diagnosis. It is also evident he did not co-operate with
the
Occupational Disease investigation, which might have, but not
necessarily would have, entailed the MBOD paying for a lung biopsy.
The applicant claims that it could not conclude the medical
examination once Maduma he declined to co-operate with the OD
investigation.
But that investigation was never raised as an avenue
to explore in the medical evaluation meetings, where it ought to have
been
discussed. On the available record, it appears this possibility
only arose when the process was all but finalised. The form to
initiate the OD investigation was only completed on 4 July 2014, the
same day that Maduma was informed of his dismissal. In the
medical
evaluation meetings, the applicant had always sought to place the
onus on Maduma to obtain the necessary final reports
and there was
never any suggestion from the applicant’s side that it was
willing to assist in finalising the diagnosis.
[35]
In view of the inconclusive result of the available medical reports
and given that it was common cause the lung biopsy was
needed to
finalise the diagnosis, this was a matter which the applicant ought
to have sought to have sought to finalise at an early
stage if it was
serious about obtaining that information. To have merely offered the
prospect of the OD investigation as an alternative
route to possibly
obtaining a final diagnosis at the point of dismissal does not
suggest the applicant seriously considered the
need to finalise the
preliminary diagnosis of Drs Khan and Abdullah.
[36]
Accordingly, on the evidence, the arbitrator’s decision that
the applicant had failed to conduct a medical investigation
before
taking the decision to dismiss Maduma was not an implausible
inference to draw given that the prospect of the OD investigation
arose only at the time of dismissal. There was also no evidence that
the applicant would not proceed with the dismissal if Maduma
had
agreed to co-operate with the OD investigation and until that
investigation was finalised. Consequently, there is no reason
to
believe that any potential medical investigation arising from the OD
investigation, was regarded by the applicant as a relevant
issue in
deciding whether or not to dismiss Maduma.
[37]
That is not to say that the arbitrator was reasonable in concluding
that at the time of his dismissal Maduma was fit to work
in an
alternative position at the applicant, as the medical reports coupled
with the dust conditions made that untenable at the
time. But he was
not unreasonable in finding that more should have been done to
ascertain the permanent or temporary nature of
the illness before
continuing with the incapacity meetings. The enquiry into incapacity
is not solely concerned with an employee’s
inability to perform
their present duties but also with evaluating the prospect of their
being feasible alternatives to dismissal
which in turn may depend on
the medical prognosis.
Fourth ground
[38]
The basis of the arbitrator concluding that the applicant had merely
gone through the motions of the incapacity proceedings
was because it
had proceeded with the procedure without obtaining a clear prognosis
of Maduma’s condition. This may appear
to have been a somewhat
sweeping conclusion. However taking into account that the final
medical prognosis was made Maduma’s
responsibility, that
alternative work was hardly discussed except in the most general
terms and that, there was no evidence of
engagement between the
parties in those meetings over any specific alternative positions
that might be considered, it is not unreasonable
to conclude that the
process was not as thorough as it should have been. Merely because
the union had suggested that the applicant
embark on the process did
not mean a thorough procedure was embarked upon. Consequently, I am
satisfied there was enough evidence
to at least sustain a finding
that Maduma’s dismissal was procedurally unfair.
[39]
In conclusion, even though the reasoning of the arbitrator was
unreasonable and tendentious in relation to his findings that
Maduma
ought to have been placed in a team assistant position and his
implicit finding that Maduma had not been incapacitated at
the time
of his dismissal, his findings that the dismissal was substantively
and procedurally unfair are not ones that no reasonable
arbitrator
could have arrived at on the evidence before him. Nonetheless, even
though his findings in that respect should stand,
it is necessary to
substitute the relief he awarded to Maduma with an award of
compensation in view of the materially flawed parts
of his reaoning.
Alternative relief
[40]
in determining an appropriate award of compensation, I have
considered the following factors:
40.1 At the time of his
dismissal there was no dispute that Maduma was incapacitated for the
time being in relation to his existing
occupation, and that
incapacity proceedings were warranted;
40.2 Other alternative
occupations within the business unit of the applicant were not
feasible alternatives given the dust environment
and that none of
them were exclusively deskbound jobs and in all likelihood there
would not have been a position he could have
safely occupied until he
recovered;
40.3 The incapacity
proceedings were less than thorough and appeared to be premised on
the assumption that once it was established
that Maduma could not
perform his own duties, no further enquiry to his incapacity was
essential.
40.4 There was no
evidence of direct engagement with the union and Maduma during the
incapacity proceedings about alternative positions
he might have
filled.
40.5 The applicant’s
length of service of approximately six years.
40.6 The applicant made
no apparent effort to explore possible vacancies within the Exarro
group. The fact that it might not have
been the group policy to look
at alternatives outside a particular business unit, does not absolve
the applicant from at least
exploring the possibility of him being
placed in vacancies in other units which were office-based and would
not have involved him
working in a dusty environment.
40.7 The applicant
proceeded to dismiss him without taking steps to determine the nature
of his lung disease and whether he would
be permanently disabled, in
circumstances where it was fully aware that the diagnosis was
incomplete and that Maduma was not in
a position to finalise it
himself.
40.8 The applicant did
make some suggestions to mitigate the effects of Maduma’s
dismissal, such as appealing the disability
rating determined by the
Provident fund’s medical assessors.
Order
[1]
The arbitration award of the second respondent issued under case
number LP 5578-14 dated 2 August 2015 as varied by his variation
ruling of 15 August 2015 is reviewed and set aside only to the extent
set out in paragraph [2] below.
[2]
Paragraphs [62] to [65] of the award as amended by the variation
ruling of 15 August 2015 are amended as follows:
2.1 Paragraph [62] shall
read:
“
The respondent
must pay the applicant nine months’ remuneration calculated at
the rate of his remuneration at the time of
dismissal (R 14,169-00
per month) amounting to R 127,521-00.”
2.2 Paragraph [64] is
deleted.
2.3 Paragraph [65] is
renumbered as paragraph [64].
[3]
The applicant must comply with the substituted relief in paragraph
[2] above within 15 days of the date of this judgment.
[4]
The applicant must pay the first respondent’s costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M G Maeso of
Shepstone & Wylie
FIRST
RESPONDENT:
G Grové of
Smit & Grové Attorneys
[1]
(2015) 36 ILJ 1493 (LAC)
[2]
At
1503-4