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[2017] ZALCCT 16
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POPCRU obo Meniers v South African Police Services and Others (C626/15) [2017] ZALCCT 16 (21 April 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
REPORTABLE
Case
no: c626/15
In the
matter between:
POPCRU
obo MUHAMMAD ALLIE
MENIERS
Applicant
and
THE
SOUTH AFRICAN POLICE
SERVICES
First Respondent
THE
BARGAINING COUNCIL (SSSBC)
Second
Respondent
LILLIAN
GOREDEMA
N.O.
Third Respondent
Heard
:
22 February 2017
Delivered
:
21 April 2017
JUDGMENT
RABKIN-NAICKER
J
[1] This
is an opposed application to review an arbitration award under case
number PSSST 210-13/14. The third respondent (the arbitrator)
found
that the dismissal of the applicant (Meniers) for being unfit to
perform his duties effectively and efficiently was substantively
and
procedurally fair. There was also an application for condonation
before Court for the late prosecution and filing of the review.
The
review application was filed some 21 days late. Given the delay was
not excessive, I will grant condonation and deal with the
merits of
the review.
[2] The
arbitrator recorded in her Award that the issue to be determined was
“…whether the Applicant’s dismissal
was
substantively fair and whether the Board of Enquiry was the correct
forum in deciding the dispute.”
[3]
Meuniers was employed as a Warrant Officer stationed at Diep River
Police Station. He was dismissed in the wake of a recommendation
Board of Enquiry held in terms of Regulation 64 of the SAPS that he
was not fit to remain in the SAPS. He alleged at arbitration
that the
dismissal was unfair as he was absent from duty due to illness
arising from the course of his duties. The SAPS disputed
that the
absenteeism was as a result of illness arising from the performance
of his duties and maintained that his dismissal was
substantively
fair as he was found to be unfit to continue his duties.
[4]
Section 34(1) of the SAPS Act states that the National Commissioner
may designate a member, a category of members or any other
person or
category of persons who may, in general or in a specific case,
inquire into, inter alia, the fitness of a member to remain
in the
Service of the SAPS on account of indisposition, ill-health, disease
or injury. Regulation 64(1)(b) provides as follows:
“
If
by reason of the performance of any act or failure to perform an act,
or any other conduct or condition, the question arises
whether a
member is fit for his duties, or is capable to carry them out
efficiently, or, taking into consideration the requirements
regarding
the good order, efficient administration, control or discipline of
the force, in in general fit to remain in the force
or to retain his
rank, the Commissioner, or any officer specially or generally
designated thereto by the Commissioner, may convene
a board of
enquiry with himself as chairman and a member of equal or higher rank
than the defendant as investigating official.”
[5] The
terms of reference for the Board of Enquiry were to decide if Meniers
was fit to remain in the Service as a result of “Continuous
absence which results in him being unable to render his contractual
employment obligations and make a recommendation as to whether
he was
fit to remain in the SAPS. The Convening Order stated that “The
Board is required to take the provisions of Schedule
8 – Code
of Good Practice – Dismissal as issued in terms of the Labour
Relations Act Act 66 of 1995 into consideration
when exercising its
powers.”
[6] The
evidence given at the arbitration for the SAPS was in summary that
Meniers had taken sick leave exceeding the days allowed
in the Basic
Conditions of Employment Act from 2010 to 2012. He had initially
submitted Doctor’s certificates ranging from
depression to
tonsillitis, bronchitis and diabetes and tension headaches. The
Station had tried to accommodate Meniers who initially
indicated that
he could not do shift work and he was transferred to do deal with
crime reports from the members of the public.
However, he began to
book off sick.
[7]
Meniers was transferred back to shift work and the absenteeism
persisted to the extent that he exhausted his sick leave and
was
asked to apply for temporary incapacity leave this was refused as
there was a sense that Meniers was abusing the process. The
Station
Commander of Mowbray Police Station (Dyers) testified that she
was appointed the Chairman of the Regulation 64 Board
to consider the
Applicant’s fitness to remain in the SAPS as most of
Applicant’s sickness seemed to be of a psychological
nature.
She submitted a bundle of documents to be considered as evidence. The
evidence presented to the Board was that the Meniers
was off sick
regularly and mostly during night shift. He had exhausted his sick
leave and had been off sick regularly since 2004.
He had been given
opportunities to improve his attendance through Employee Health
Wellness interviews three times in January 2011,
May 2011 and
February 2012. After each interview he had made undertakings to
improve and manage his sick leave but failed to do
so. He had been
sick with diabetes, high blood pressure and kidney problems.
[8] Dyers
testified that he had been given an opportunity to act as a relief
Commander in charge of a few Officers but he
failed to give any
guidance to them as he was regularly absent from duty. Dyers referred
to 1999 clinical report which is recorded
as follow in the Award”
“
As
early as 1999 a clinical report was compiled in which the Applicant
was assessed ad being physically healthy with a history of
illnesses
which are vague and minor and that he has poor fortitude and will
never deliver his best and will always seek refuge
from everyday
stresses and responsibilities of life in the form of one or other
ailments.”
[9] It
seems that it is this reference to a 1999 report that the Arbitrator
relies on in the following part of her analysis:
“
48.
I have also considered the submission made on behalf of the Applicant
that he could have been dealt with in terms of Item 11
Schedule 8 of
the LRA dismissal due to ill health and incapacity. I find that there
was no allegations that the Applicant was indeed
ill he utilised sick
leave to stay at home when all indications were that he was unhappy
being in the force. This finding is fortified
by the evidence that
the Respondent had bent over backwards to accommodate the Applicant.
From the medical certificates submitted
and not challenged the
Applicant was found to be physically fit but with minor illnesses and
lacked the fortitude to deliver his
best. I do not think resorting to
the LRA in the circumstances would have been appropriate as there
were no allegations of incompetence”.
[10] The
arbitrator made no mention of the various medical reports contained
in the bundle of documents before her and which she
accepted as
evidence.. These included certificates from Dr Chris George and Dr
A.R. Mohammed in 2012 stating that that Meniers
was diagnosed with
and treated for major depression, anxiety and panic attacks. Further
SAPS documents in their bundle presented
at arbitration reflect that
Meniers was booked off with major depression as far back as
2004.There is also evidence in the documents
that he in addition has
uncontrolled diabetes and high blood pressure. The document
reflect that he is on medication for
all these ailments including his
mental health.
[11]
Applicant submits that the arbitrator’s reliance on the 1999
report cited by Dyers and her finding on the health of Meniers
without the guidance of medical experts amounted to her exceeding her
powers and arriving at an unreasonable and/or irrational
result.
However Meniers and his union did not call any witnesses in regard to
his medical conditions.
[12]
Meniers testified at arbitration that he had suffered from post-
traumatic stress after he had dislocated his arm while trying
to
apprehend a robber and had been held hostage. He also testified about
how he had felt victimised at the workplace when his Commander
who he
had confided in about his stress did not keep it confidential. Much
of his testimony in regard to his stress at work was
not put to the
SAPS witnesses by his representative. The documentary evidence
at arbitration includes a letter written in
2005 his psychiatrist, Dr
George, stating that Meniers suffered from chronic
posttraumatic stress disorder and major depressive
disorder. He had
been treated for episodic depression since 1997.
[13] The
arbitrator, having found the evidence of the SAPS witnesses probable
and credible stated in paragraph 51 of her Award as
follows:
“
51.
The Applicant did not dispute being excessively absent from duty and
did not attribute all of his absences to work related stress.
I fail
to understand how diabetes and bronchitis as illnesses would have
anything to do with work induced stress and find his evidence
that
his illnesses were induced by work related stress improbable and
incredible. This is strengthened by the Applicant’s
promise not
to stay away from work if he is given his job back.”
[14] I am
in agreement with submissions on behalf of the applicant that the
arbitrator was in no position to draw conclusions regarding
Meniers
health, and that given the documentary evidence before her the
conclusions she did draw were most probably incorrect. However,
what
this court is to determine is whether the commissioner reached on
reasonable decision or miscontinued the nature of the enquiry
before
her.
[i]
[15] The
applicant submits that other grounds for review are: that the
arbitrator failed to consider whether the applicant’s
conduct
could be corrected with counselling and if needed progressive
discipline; that she failed to see the distinction between
a Board of
Enquiry and a disciplinary hearing; that she failed to comprehend
that the Board was obliged to consider Schedule 8
of the LRA as
directed in the Convening Order.
[16] It
is evident from the material before the Board and its finding, that
consideration was given to the many steps taken to adapt
Menier’s
work duties and corrective measures taken to address the applicant’s
continued absences. He was represented
in his interactions with the
Board and was given the opportunity to appeal its findings. The
finding by the Arbitrator that the
Board was not used to sidestep a
disciplinary hearing and was procedurally fair is a reasonable one.
[17] The
provisions of the SAPS Act dealing with Boards of Enquiry and the
Regulations promulgated in relation to these were not
the subject of
challenge by the applicant. Nor was the decision of the Board sought
to be reviewed. The course taken by the union
and its member was
rather to take the dispute to the bargaining council and maintain
that the applicant should have been heard
by SAPS in a disciplinary
forum. It is correct as submitted by the union at the arbitration
that the Board did not have the power
to dismiss the applicant.
However, it had the power to recommend that an employee was not fit
to remain a member of the SAPS. The
SAPS qua employer accepted that
recommendation.
[18]
Meniers testified that he suffered from post-traumatic stress in the
wake of a hostage incident and work induced anxiety and
stress, but
he did not seek the path of medical boarding. Rather, at the enquiry
at arbitration he professed he was fit to return
to work and would
manage his sick leave better. In these circumstances the outcome of
the arbitration cannot be considered to be
susceptible to review. I
will not make a cost order in this matter given the ongoing
relationship between the parties. I make the
following order:
Order
1. The
application for condonation is granted.
2. The
review application is dismissed.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant
:
Marais Muller Hendricks Attorneys
First
Respondent
: M. Ngumbela instructed by the State Attorney
[i]
Herholdt V Nedbank LTD ( Cosatu as Amicus Cunae 2013 (34) ILJ 2795
(SCA) at paragraph 25.