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[2017] ZALCJHB 435
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Paraxel International (Pty) Ltd v Chakane NO and Others (JR534/12) [2017] ZALCJHB 435; (2018) 39 ILJ 644 (LC) (21 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR534/12
In
the matter between
:
PAREXEL
INTERNATIONAL (PTY) LTD
Applicant
and
CHAKANE,
T
N.O.
First Respondent
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
Second
Respondent
MOSIME-MASETI, KEFILWE
DOROTHY Third
Respondent
Heard:
26
October 2017
Delivered:
21 November 2017
Summary:
Rule 11 application –
prejudice
not substantial to warrant a dismissal of the main application.
Review
application – incapacity for ill health – employer
enjoined to establish the extent of incapacity based on objective
facts and explore means to reasonably accommodate employee –
engrossed
by the length of absence, the employer failed to explore other
alternatives short of dismissal
–
inquiry
on substantive and procedural fairness inextricably linked.
JUDGMENT
NKUTHA-
NKONTWANA J
Introduction
[1]
This is an
application for the review of an arbitration award issued on 13
February 2012 by the second respondent (the commissioner)
in terms of
which he found that the dismissal of the third respondent was
procedurally and substantively unfair. The third respondent
is
opposing the application.
[2]
The
applicant’s main ground of review, précised, is that the
commissioner committed a reviewable irregularity by failing
to
properly and justifiably apply his mind to the facts and law in the
circumstances of the matter.
Interlocutory
application
[3]
The third
respondent lodged a Rule 11
[1]
application seeking an order dismissing the main application for lack
of diligent prosecution by the applicant. This application
was heard
simultaneously with the main application. The primary complaint was
that the applicant dragged its feet after the filing
of the reply
affidavit. It had to be nudged by the third respondent to attend to
the pagination and indexing of the Court file.
Also it failed to
comply with the Court’s directive on the filing of heads of
argument.
[4]
The
applicant’s counsel conceded that there was slackness in the
manner in which the applicant prosecuted the main application,
but he
submitted that the delay pertained to processes after the close of
pleadings and it did comply soon after it was put on
terms by the
third respondent. The applicant always demonstrated an intention to
persist with the litigation, so it was further
submitted.
[5]
I agree
with the third respondent’s counsel that the delay in the
finalisation of this matter is regrettable. The third respondent
was
dismissed on 14 April 2011 and 6 years down the line, she is yet to
enjoy the fruits of her victory.
The
prejudice suffered by the third respondent is, however, not
substantial so as to warrant a dismissal of the main application.
[6]
In
the
circumstances of the case, I am disinclined to dismiss the main
application. Even so, the delay was duly considered in the awarding
of costs.
Background
facts
[7]
The facts
of this matter are, to a large extent, common cause. The third
respondent was employed as a clinical research nurse and
commenced
her employment on 1 March 2010. On 29 June 2010, she was hit on her
head by a cabinet door at work. Consequently, she
fell on crates and
injured her back. She lost consciousness and was rushed to hospital.
She was booked off sick from 1 July 2010
and was granted a special
leave up until 30 September 2010. Henceforth, she was on sick leave
up until 26 November 2010 and annual
leave up until 20 December 2010.
[8]
The
applicant assisted the third respondent to lodge an application with
Discovery Health for disability benefits. The application
was
declined on 10 December 2010 because the third respondent’s
medical condition had been diagnosed as treatable. As of
20 December
2010, the third respondent was on unpaid leave.
[9]
The
applicant also reported the accident and injury in terms of
Compensation for Occupational Injuries and Diseases Act
[2]
(the COIDA). Dr De Kock who was treating the third respondent at that
time filed a medical report dated 26 January 2011 in support
of the
COIDA process. It is apparent from the medical report that the third
respondent was not fit to resume duties but had prospects
of
recovering ‘in time’.
[10]
The first
incapacity enquiry was scheduled for 12 January 2011 but postponed at
the instance of the third respondent so as to allow
her time to
consult with Dr De Kock. The medical report issued by Dr De Kock on 9
February 2011states that the third respondent’s
main medical
problem at that time was not related to the injury caused by the
accident at work on 29 June 2010. She was diagnosed
with ‘pre-mobid
mood disorder’. This condition was said to be resinous enough
to cause functional limitation. The third
respondent was referred to
a psychiatrist, Dr Jordaan, who treated her up until the date of her
dismissal. During the whole period
of treatment, Dr Jordaan had
issued medical certificates booking the third respondent off sick
(i.e. from 7 February 2011 to 24
February 2011 and 25 March 2011 to
25 April 2011). In essence, the third respondent remained off sick up
until the date of her
dismissal.
[11]
On 14 March
2011, the applicant reconvened the incapacity enquiry that had been
postponed on 10 March 2011 in order to allow Dr
Jordaan to submit his
medical report. Dr Jordaan’s report, dated 10 March 2011,
clearly states that the third respondent’s
medical condition
was treatable but she needed to undergo further investigation by Dr
Bester hence she was booked off sick for
another month (i.e. 25
February 2011 to 25 March 2011). In the enquiry, the third respondent
echoed her eagerness to resume work,
subject to her doctor’s
recommendation.
[12]
The next
incapacity enquiry was scheduled for 28 March 2011 but only sat on 31
March 2011 at the instance of the third respondent.
She failed to
present medical certificate on her progress or sick note for days she
had been absent on after 25 March 2011. She
was then instructed to
report for duty on 1 April 2011 or face disciplinary action. The
applicant did comply with the instruction
but only for three days. On
6 April 2011, the third respondent’s husband sent an SMS to the
applicant reporting her wife
off sick. The same day the applicant
received a medical certificate from Dr Jordaan booking the third
respondent off sick for another
month (i.e. 25 March 2011 to 25 April
2011).
[13]
On 7 April
2011, the applicant served the third respondent with a notice to
attend a further incapacity enquiry that was scheduled
for 14 April
2011. The third respondent replied in writing and addressed some of
the issues that were going to be discussed in
the enquiry.
Pertinently, she was categorical about the fact that she was not in a
position to affirm whether she would be fit
to resume work on 26
April 2011 or comment on the prospects of her recovery. Nonetheless,
she granted the applicant permission
to contact her doctors, an offer
that was never taken on by the applicant.
[14]
On 14 April
2011, the third respondent failed to attend the incapacity enquiry.
Her husband testified that she did not attend because
she was frail.
He conceded to permitting the applicant to continue with the
investigation in the third respondent’s absence
if that was
what it sought to do. Indeed, the incapacity enquiry proceeded in the
absence of the third respondent and recommended
her dismissal. The
chairperson of the final incapacity enquiry, Ms Vos, testified that
in arriving an her recommendation, she had
considered the following:
14.1.
The medical
reports that had been submitted by the third respondent;
14.2.
The fact
that the third respondent had been absent from work for 10 months and
still did not provide the applicant with the report
stating the
nature of her illness, prospects of recovery and when would she be
able to resume her normal duties; and
14.3.
The
applicant’s financial constraints at that time and the fact
that it could not adapt the third respondent’s position
or
offer her an alternative position.
Review
Test
[15]
Tritely,
the test for review is whether the decision reached by the
commissioner is one that a reasonable decision-maker could not
reach.
[3]
In
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
,
[4]
the Court simplified the approach to be adopted when dealing with
irregularities resulting from errors made by commissioners in
the
conduct of arbitrations as follows:
‘
A review of a CCMA award is
permissible if the defect in the proceedings falls within one of the
grounds in section 145 (2)(a) of
the LRA. For a defect in the conduct
of the proceedings to amount to a gross irregularity as contemplated
by section 145 (2)(a)(ii),
the arbitrator must have misconceived the
nature of the enquiry or arrived at an unreasonable result. A result
will only be unreasonable
if it is one that a reasonable arbitrator
could not reach on all the material that was before the arbitrator.
Material errors of
fact as well as the weight and relevance to be
attached to particular facts, as well as the weight and relevance to
be attached
to particular facts, are not in and of themselves
sufficient for an award to be set aside, but are only of any
consequence if their
effect is to render the outcome unreasonable.’
[16]
In
Head
of the Department of Education v Mofokeng
,
[5]
the LAC, endorsed the findings in
Herholdt
and by way of emphasis stated that:
‘
Irregularities or errors in
relation to the facts or issues, therefore, may or may not produce an
unreasonable outcome or provide
a compelling indication that the
arbitrator misconceived the inquiry. In the final analysis, it
will depend on the materiality
of the error or irregularity and its
relation to the result. Whether the irregularity or error is
material must be assessed
and determined with reference to the
distorting effect it may or may not have had upon the arbitrator’s
conception of the
inquiry, the delimitation of the issues to be
determined and the ultimate outcome. If but for an error or
irregularity a
different outcome would have resulted, it will
ex
hypothesi
be material to
the determination of the dispute.’
[17]
It is clear
from the authorities referred to above that a mere failure by the
commissioner to properly determine a factual dispute
or draw
inferences or make factual findings does not in itself
constitute a basis for review. Ultimately, the determining
factor is
the substantive unreasonableness of the commissioner’s
decision.
Analysis
[18]
It is
common cause that the third respondent’s employment contract
was terminated due to her ill health. The reason given
was that she
was incapable of performing the work for which she was employed due
to her continuous ill health.
[19]
Item 10
Schedule 8 to the Labour Relations Act
[6]
(the LRA) - the Code of Good Practice: Dismissal (the Code)
gives the following guideline on incapacity: ill health and 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
.’
[Emphasis added]
[20]
On the
other hand, Item 11 of the Code is addressed to a person determining
the fairness of the dismissal for incapacity due to
ill health or
injury. It provides that:
‘
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.’
[21]
In
Standard
Bank of South Africa v Commission for Conciliation, Mediation and
Arbitration and Others,
[7]
relied on by the third respondent, the Court opined that an
enquiry
contemplated in Item 10(1) ‘ an enquiry to justify an
incapacity dismissal may take a few days or years, depending
mainly
on the prognosis for the employee’s recovery, whether any
adjustments work and whether accommodating the employee
becomes an
unjustified hardship for the employer’.
[22]
In this
case, it is common cause that Dr De Kock diagnosed the third
respondent’s medical condition as a ‘pre-mobid
mood
disorder’ and accordingly referred her to Dr Jordaan, a
psychiatrist. Both asserted in their respective medical reports
that
‘pre-mobid mood disorder does affect functionality but is
treatable. The last medical report was Dr Jordaan’s,
dated 10
March 2011.
[23]
The
applicant argued that the third respondent’s absence from work
had nothing to do with her injury at work on 29 June 2010
as per Dr
De Kock’s diagnosis. As such, her mental condition was
permanent but treatable. The third respondent was not on
treatment
but instead persisted with being absent unendingly. This argument has
no merit as no medical report had declared the
third respondent
permanently incapacitated. Other than divorcing the third
respondent’s mental condition from the injury
she had suffered
at work on 29 June 2010, Dr De Kock, and subsequently Dr Jordaan,
never conclusively pronounced on the extent
of the third respondent’s
incapacity. In fact, Dr Jordaan indicated that Dr Bester would be
brought on board to perform further
investigations. As of 10 March
2011, the third respondent’s medical condition was still under
investigation. In the absence
of Dr Bester’s report or
additional report by Dr Jordaan, the applicant had no medical basis
for its conclusion that the
applicant was permanently incapacitated.
[24]
The
applicant referred to
Independent
Municipal and Allied Trade Union on behalf of Strydom v Witzenberg
Municipality and Others
[8]
where the court emphatically found that the commissioner misdirected
himself by failing to consider the latest medical report which
clearly stated that Mr Strydom has recovered from his mental
condition and could resume duties. In my view,
Witzenberg
does
not support the applicant. Conversely, it seems to support the third
respondent’s case in many respects as the Court
pertinently
stated that:
[9]
‘
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.’ [Emphasis added]
[25]
Even this
case, it is common cause that the third respondent had attempted to
access the Discovery’s Capital Disability Benefit.
Her claim
was declined on 10 December 2010 because her functional impairment
was expected to improve with time. Whilst, in order
to qualify for
the Discovery benefit, the medical condition had to be permanent
regardless of treatment. It is without doubt that
by December 2010
the applicant was aware that the third respondent’s incapacity
was temporal. The subsequent medical reports
by the third
respondent’s doctors confirmed that. There had been no medical
report to the contrary when the last incapacity
inquiry was conducted
on 14 April 2011. During the arbitration, the applicant testified
that her condition had improved and was
in a position to resume her
duties.
[26]
The
applicant, ultimately, had an
onus
of proving the third respondent’s incapacity in order to
justify the dismissal.
[10]
Even though the third respondent was indisposed for a period on 10
months, the applicant failed to enquire into extent to which
the
third respondent was able to perform her work, a factual enquiry to
establish the effect that her incapacity has on her performing
her
work. This, in essence, was the finding by the commissioner.
[27]
The
applicant argued that the third respondent’s absence was
unreasonably
long given the fact the she had been 4 months in its employ when she
sustained the injury at work. There is no evidence
on the record,
other than the duration of her absence, that the applicant did
explore all other possible alternatives short of
dismissal. It is
common cause that the third respondent had been on unpaid sick leave
as from 10 December 2010 and as such there
was no financial hardship
on the applicant henceforth. If indeed the third respondent’s
position was so crucial to the applicant’s
operations and her
absence affected it adversely, a possibility of securing a temporary
replacement for her could have been a viable
option. Nonetheless,
that option was never explored.
[28]
The
applicant was, however, engrossed by the third respondent’s
length of absence and failed to explore other alternatives
short of
dismissal. That approach was rejected in
MTN
Service Provider (Pty)
Ltd v Matji NO and Others,
[11]
where the court
pertinently stated that:
‘
It
appears from all the evidence that the applicant’s decision to
dismiss her was based not so much on her incapacity as her
long and
persistent periods of absence from work due to ill-health. That is
why the applicant insisted that the enquiry before
the first
respondent should have been formulated broader than it was to make
reference to the “habitual” and “persistent
absenteeism” of the third respondent. That is not the test. The
test is whether the third respondent was at the time of dismissal
capable of rendering her services to the applicant. She was never
given a chance to prove that she was. I am thus satisfied that
the
first respondent asked and answered the correct question.’
As regards the
second issue, there was no evidence before the first respondent that
the third respondent had any say in the applicant’s
“consideration” of alternative positions of a less
stressful hue. Whether or not such positions indeed existed is a
separate enquiry.’
[29]
These
principles are trite. By
now
it is
reasonable to expect that employers
clearly
understand the obligations in terms of Items 10 and 11 of the Code.
Even
though an employer may not be obliged to retain an employee who is
not productive, fairness requires that a proper assessment
be made of
whether that situation has been reached before the employer resorts
to dismissal.
[12]
Such an
assessment cannot be undertaken in an arbitrary manner and without
properly consulting the employee on possible alternatives.
[13]
[30]
It
is also clear from the award that the commissioner was alive to the
fact that the arbitration is a hearing
de
novo
and his duty to
make
a determination as to the fairness or otherwise of the third
respondent’s dismissal on the basis of evidence that was
adduced before him, including evidence that was not before the
chairperson of the incapacity enquiry.
[14]
[31]
In this
regard, the third respondent testified that she had been in a
position to perform her duties, subject to reasonable accommodation,
especially since most of her tasks could be performed seated. Though,
she readily conceded under cross-examination that she could
not sit
down for a long period due to back pains, a condition that persisted
till October 2011, post her dismissal. Subsequently,
her medical
condition had improved to the extent that she was confident that she
would be in a position to perform her duties.
[32]
The
applicant, on the other hand, failed to prove that the third
respondent’s prolonged absence from work was unreasonably
arduous. Also, it failed to consider adapting the third respondent’s
work so as to allow her to perform her duties seated,
when it was
enjoined to do so given the fact that the genesis of the third
respondent’s medical condition was due to the
accident that
happed at work. The applicant’s evidence in this regard was
limited to a mere mention of financial difficulties
without providing
exact facts on how tweaking of the third respondent’s duties
could have saddled it unduly.
[15]
[33]
On
procedure, the third respondent’s husband, Mr Maseti, testified
that she was indisposed on the day of the final hearing,
a fact he
communicated to the applicant, a fact that was denied by Ms Vos. In
any event, nothing turns on that because the applicant
had already
been served with the doctor’s sick note that booked the third
respondent off duty from 25 March 2011 to 25 April
2011.
[34]
The
commissioner correctly found that Ms Vos ought to have applied her
mind to the fact that the applicant had participated in most
of the
incapacity investigations previously. She also gave no consideration
to the third respondent’s medical history and
the fact that the
genesis thereof was the injury sustained at work. Accordingly, the
applicant was expected to go an extra mile
in its attempt to
reasonably accommodate the third respondent. There was no
justification for the haste with which the process
dismissing the
third respondent was conducted.
[35]
The
applicant’s counsel submitted that since the third respondent
did not avail herself to the opportunity to be heard, she
could not
complain about the unfairness of the procedure. The sick leave could
not be used as an excuse not to attend an incapacity
hearing, so it
was further submitted. I disagree. The applicant was not accused of
abusing sick leave and the sick note was never
disputed.
This case is
distinguishable from
AECI
Explosives Ltd (Zomerveld) v Mambalu
,
[16]
relied on by the applicant. In
AECI,
addressing the issue of procedural fairness, the court held that
there should be a distinction between dismissal for persistent
but
intermittent absence for ill health and dismissal for prolonged
absence owing to long-term illness. In that matter, the employee
was
dismissed for persistent but intermittent absence for ill health. The
court stated that a persistent but intermittent absence
for ill
health should be treated as analogous to a disciplinary matter
capable of being regarded as a dismissal for misconduct
as opposed to
incapacity. The procedure followed by the employer was found to be
fair as it had given the employee warnings to
improve his attendance
at work; it had given him the opportunity to make representations; it
had investigated his claim that his
working conditions were the cause
of his illness and found that that claim had no substance; and,
finally when there was no adequate
improvement in the employee’s
attendance record
,
it
had been justified in treating the persistent absences as a
sufficient reason for dismissing him.
[36]
In
this case, it is common cause that the applicant followed the
incapacity for ill health process. In fact, it is clear from the
outcome report by Ms Vos that misconduct was never considered, not
even in the alternative. In
Witzenburg
,
[17]
the LAC made it clear that employers are constrained to adhere to the
provisions of I
tems
10 and 11 of the Code. It was stated that:
‘
The afore-mentioned obligations
of the employer as set out in items 10 and 11 of Schedule 8 to the
LRA are inter-related 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 noncompliance
with such an important
constitutional imperative would not only impact on procedural
fairness but on the substantive fairness of
the dismissal as well?’
[37]
On the
issue of the remedy, the third respondent had sought reinstatement on
the basis that she was well enough to resume with her
normal duties.
In the absent of any evidence to prove that it was not reasonably
practicable for the applicant to re-instate the
third respondent, the
primary remedy of reinstatement was correctly awarded.
Conclusion
[38]
In
all the circumstances,
the
commissioner
certainly understood the
true
nature of the enquiry and rendered a decision that is substantively
reasonable.
In
my view, the applicant’s qualms are predicated on the
negligible material errors of fact as well as the weight and
relevance
to be attached to particular facts which, on the review
test expounded in the authorities above mentioned, are not in and of
themselves
sufficient for an award to be set aside.
Costs
[39]
Even though
the
Rule 11
application is dismissed, there is no justification for
awarding costs against the third respondent. The application was not
frivolous
given the sluggish manner in which the applicant prosecuted
the review application.
[40]
On the
contrary, there is no reason why costs in the main application should
not follow the result.
[41]
In the
premises, I make the following order:
Order
1.
Rule 11
application is dismissed with no order as to costs.
2.
The review
application is dismissed with costs.
__________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the
applicant:
Mr S Snyman
Attorney
from:
Snyman Attorneys
For the third
respondent:
Mr M Khang
Attorney
from:
Mphafi Khang attorneys
[1]
Rule 11 of the Labour Court Rules
dealing with interlocutory applications.
[2]
No. 130 of 1993.
[3]
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
[2007]
ZACC 22
;
[2007]
12 BLLR 1097
(CC) at
para 110;
Herholdt v Nedbank
Ltd (Congress of South African Trade Unions as amicus curia)
[2013]
11 BLLR 1074
(SCA; and Gold Fields Mining South Africa (Pty) Ltd
(Kloof Gold Mine) v Commission for Conciliation, Mediation and
Arbitration
and others [2014] 1 BLLR 20 (LAC).
[4]
Herholdt
at para 23.
[5]
Head of the Department of
Education v Mofokeng
[2015] 1 BLLR 50
(LAC) at para 33.
[6]
Act 66 of 1996 as
amended.
[7]
[2007] ZALC 98
;
[2008] 4 BLLR 356
(LC); (2008) 29 ILJ 1239 at paras 70 -76.
[8]
(2012) 33 ILJ 1081 (LAC) at para 20.
[9]
Id at para 27.
[10]
Section 192(2) of the LRA.
[11]
[2007] ZALC 40
at paras 14 –
15.
[12]
National Union
of Mineworkers and Another v Libanon Gold Mining Co Ltd
(1994) 15 ILJ 585
(LAC).
[13]
Standard Bank
above n 6 at para 111.
[14]
Witzenburg, above n 7 at paras 15 &
25.
[15]
Standard Bank
above n 6 para 137 – 138.
[16]
(1995) 16 ILJ 1505 (LAC)
[17]
Above n 7 at para 8.