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[2017] ZALCCT 21
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TVET SA (Pty) Ltd v Swanepoel and Others (C882/2015) [2017] ZALCCT 21 (23 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
no: C882/2015
In
the matter between:
TVET
SA (PTY) LTD
Applicant
and
LISA
DOROTHY SWANEPOEL
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
BELLA GOLDMAN N.O
Third
Respondent
Heard:
12 May 2016
Delivered:
23 May 2017
JUDGMENT
TLHOTLHALEMAJE,
J.
Introduction:
[1]
The applicant seeks an order reviewing and correcting the arbitration
award issued by the third respondent (Commissioner) under
case number
WECT7539-15 dated 28 August 2015. In the award, the Commissioner
found that the dismissal of the first respondent (Swanepoel)
was both
substantively and procedurally unfair, and had ordered the applicant
to pay her compensation equivalent to eight months’
salary
which came to R160.000.00. Swanepoel opposed the application.
Background:
[2]
The applicant is in the business of providing education and training
services to the clothing industry. It has its principal
business/head
office in Cape Town. Swanepoel was employed with effect from 2009
until 20 April 2015 when she was dismissed for
alleged incapacity due
to ill-health. At the time of her dismissal she was the applicant’s
Regional Administrator.
[3]
It is common cause that on 14 February 2015, Swanepoel was in
Kimberley on a work-related trip when she was attacked in an
attempted vehicle hijacking incident. In the course of the attack,
her mobile phone was stolen and somehow the perpetrators were
unsuccessful in taking the vehicle from her as she managed to drive
off. Subsequent to this incident, Swanepoel was diagnosed with
PTSD,
and was given compassionate leave for two days between 16 and 18
February 2015. Between 19 and 27 February 2015 she had reported
for
duty.
[4]
Between 2 and 8 March, Swanepoel was booked off sick by her Clinical
Psychologist, Rani Prinsloo, on the basis that she suffered
from
Acute Stress Disorder. On 3 March 2015, and whilst on sick leave,
Swanepoel was called to a meeting, where he was informed
of a
restructuring taking place within the applicant. She was further
informed that as a consequence of the restructuring, she
had an
option of either accepting an alternative position as Regional
Manager at a reduced salary, or be retrenched. She had opted
for the
alternative position. She was again booked off sick between 9 and 16
March 2015 by Dr Schronen on account of suffering
from PTSD. She had
however reported for duty between 16 and 24 March 2015.
[5]
On 10 March 2015, the applicant’s attorneys of record caused a
letter to be written to Dr. Schronen, to request further
and relevant
medical evidence regarding Swanepoel’s condition, and further
requested that it be indicated whether she was
fit to perform her
duties.
[6]
Between 25 March and 8 April 2015, Swanepoel was again placed on sick
leave. Dr. Schronen on 20 April 2015 placed her on extended
sick
leave until 4 May 2015 due to her condition. Whilst on extended sick
leave on 9 April 2015, she was then sent an e-mail by
Pretorius, the
Human Resources Director, advising her to report for duty on that day
at 11 ‘due to Incapacity/Ill-health’
as medical reports
about her condition had not been received. On the same date she was
then issued with a notice to attend incapacity
enquiry scheduled for
13 April 2015. She was subsequently dismissed, with her last day at
work being 30 April 2015.
The
arbitration proceedings:
[7]
An alleged unfair dismissal dispute was referred by Swanepoel to the
second respondent (CCMA), and after unsuccessful conciliation,
the
matter was set down for arbitration before the Commissioner.
Swanepoel’s main claim was that her dismissal was
procedurally
and substantively unfair, particularly since the applicant had not
followed the provisions of Items 8, 10 and 11 of
Schedule 8, Code of
Good Practice as contained in the Labour Relations Act. Her
contention was that no investigations were conducted
to establish the
nature and extent of her incapacity prior to dismissing her, and
further that the applicant had not investigated
all possible
alternatives to accommodate her, or alternatively, adapted her duties
to her condition.
[8]
The applicant’s contention on the other hand at the arbitration
proceedings was
inter alia
that Swanepoel had not, despite
several requests, provided a medical report detailing the nature of
her ailment, and indicating
how long it was expected that she would
be off duty.
[9]
Evidence on behalf of the applicant was led by Willem Moolman, who
had acted as the chairperson of the enquiry leading to Swanepoel’s
dismissal. His testimony was that Swanepoel from the medical reports,
suffered from PTSD following the hijacking incident, and
had also
confirmed receipt of a medical report from a Doctor Schronen on 16
April 2015 regarding her condition. The issue however
before the
enquiry was that the report had long been requested by the applicant
and Swanepoel had not assisted in securing it until
16 April 2015.
The report from Dr Schronen simply recorded that Swanepoel’s
condition was treatable over time, but that she
was currently (then)
unable to report for duty. The Doctor also stated that further
consultations were to be held with her weekly,
and to monitor her
response to medication.
[10]
Moolman’s
evidence in the light of this report was that Swanepoel was unable to
perform her duties, and as per the outcome
[1]
,
she was to be ‘temporarily boarded’. Moolman further
testified that the outcome reached was to enable Swanepoel to
claim
from the UIF. Swanepoel according to Moolman had not asked to be
placed in another position. He had nevertheless conceded
that the
applicant had not considered whether she could be placed in another
position.
[11]
Another witness, Corne Pretorius, who had also represented the
applicant in the arbitration proceedings, had testified to the
effect
that from 25 February 2015, Swanepoel was asked to produce a medical
report detailing the nature of her ailment, and which
would indicate
how long she was likely to be off duty. Pretorius confirmed having
had a meeting with Swanepoel to discuss the restructuring
options,
and had also at that meeting, asked her for her medical report, even
though at that stage there had been one report submitted
by a Doctor
Rani Prinsloo. As a consequence of the failure to submit a detailed
medical report despite requests on 2, 18 and 27
March, 9 and 13 April
2015, a decision was then taken to institute an enquiry. Even when
those proceedings commenced, Swanepoel
was again asked to produce a
report and was afforded time to do so. Ultimately however, the
decision to dismiss her according to
Pretorius, was based on the fact
that the applicant was under pressure from an operational point of
view.
[12]
Swanepoel had during the arbitration proceedings described in detail,
the hijacking incident that left her traumatised. She
then took off
about 27 days’ sick leave. Whilst on sick leave, the applicant
had called her to a meeting to discuss restructuring.
She met with
Pretorius who had informed her of the two alternatives. She denied
however that Pretorius had asked her to submit
her detailed medical
reports, and contended that she had in any event submitted her
medical certificates to justify her sick leave.
[13]
At about the same period, Swanepoel was then advised by a Jennifer
Choice of the applicant to attend a PTSD programme at her
own cost,
and to attend counselling sessions about twice a month during working
hours. Swanepoel further complained about the fact
that the applicant
had failed to assist her with her claim with the Workmen’s
Compensation claim.
[14]
According to Swanepoel, she had during her absence from 14 February
2015, kept the applicant informed of her whereabouts and
medical
progress. The applicant’s attorneys had nonetheless sent a
letter of demand to Doctor Schronen, to ask for her medical
report,
which she had in any event asked the doctor to issue.
[15]
In regard to her dismissal, Swanepoel’s contention was that the
applicant’s conduct towards her had exacerbated
her medical
condition, and that it had not offered to reduce her work load or
considered placing her in a less stressful work environment
in order
to assist her with her recovery process.
The
award:
[16]
The Commissioner in analysing the evidence had regard to the
provisions of items 10 and 11 of schedule 8 and concluded that
the
applicant had not given consideration to factors contained in item 10
(4). This included not being assisted with her therapy
sessions which
she was informed she would have to take unpaid leave which she had to
apply for two weeks’ in advance, and
which in any event would
be granted if operational requirements permitted. The Commissioner
lamented the fact that the applicant
took no consideration that
Swanepoel’s condition resulted from an incident she suffered in
the course of her duties, and
the fact that she would have to pay for
her own treatment.
[17]
The Commissioner also held that the applicant unduly put Swanepoel
under pressure by calling her to a meeting to discuss restructuring,
especially after her traumatic incident, and also questioned the
reason the applicant’s attorneys had written a letter of
demand
to Swanepoel’s doctor to request her detailed medical report.
The Commissioner held the view that all of these factors
were merely
meant to harass and put pressure on Swanepoel.
[18]
Other factors which the Commissioner considered as unfair related to
threats made to Swanepoel to charge her with misconduct,
which
threats was never carried out, the failure to assist her with her
Workmen’s compensation claim. The Commissioner having
accepted
the evidence of Pretorius that Swanepoel was dismissed as she was not
fit for work, and for not furnishing the applicant
with a detailed
medical report, further concluded that there was no attempt on the
part of the chairperson of the enquiry to follow
the laws pertaining
to incapacity in Schedule 8.
The
grounds of review and submissions:
[19]
The applicant attacked the award on a variety of grounds, principal
amongst which were that;
a) The
Commissioner failed to determine whether Swanepoel was dismissed for
a fair reason, i.e., in that she was
not fit to perform her work. To
this end, it was contended that the unequivocal evidence on record
indicated that she was unfit
to perform her work, and that she would
only recover from that state in the long term.
b) Other
than failing to consider whether Swanepoel was fit to perform her
duties for the foreseeable future,
the Commissioner failed to
consider whether the applicant could reasonably have been expected to
continue to employ her, and thus
in this regard, misconceived the
nature of the enquiry.
c) The
Commissioner misconceived her duties under the LRA by failing to
appreciate that she was obliged to give
effect to, or deal with the
evidence that Swanepoel was unfit to perform her duties in the long
term.
d) The
Commissioner failed to appreciate that to the extent that the
applicant should have investigated alternative
positions in which to
accommodate Swanepoel, its failure to do so was at best a procedural
failing and could not determine the
question whether the employee was
on the evidence available, fit to perform her duties.
e) The
Commissioner misconceived her duties by failing to appreciate that as
a matter of law of evidence, once
the evidence before her made out a
strong
prima facie
case justifying the dismissal, there was an
onus of rebuttal on Swanepoel to provide evidence of alternatives in
which she could
have been accommodated, and not on the employer to
rule out all such alternatives.
[20]
Swanepoel opposed the application on the grounds that there was no
basis for a conclusion to be reached that the Commissioner
misconceived her duties in finding that her dismissal was
procedurally and substantively unfair, and that her decision was one
that a reasonable decision maker could reach. Further submissions in
this regard will be considered within the context of the evaluation
as below.
The
review test and evaluation:
[21]
The test on
review is
whether
the decision reached by the arbitrator is one that a reasonable
decision maker could not reach in relation to the evidence
before him
or her
[2]
.
The Supreme Court of Appeal, in
Herholdt
v Nedbank (Cosatu as amicus curiae
)
[3]
summarised the review test as follows:
“……
the
position regarding the review of CCMA awards is this: A review of a
CCMA award is permissible if the defect in the proceedings
falls
within one of the grounds in s 145(2)
(a)
of
the LRA. For a defect in the conduct of the proceedings to amount to
a gross irregularity as contemplated by s 145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the inquiry 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,
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.
[4]
”
[22]
Central to the applicant’s grounds of review is that the
Commissioner misconceived the nature of the enquiry in determining
whether the dismissal of Swanepoel was procedurally and substantively
fair. In this regard, it was contended that the Commissioner
misconceived her duties by relying on the applicant’s
procedural failure to exhaust all alternatives during consultation
prior to dismissal for incapacity, irrespective of the subsequent
evidence during the arbitration proceedings that established
that
there were no reasonable alternatives.
[23]
Where
this court can conclude that a Commissioner misconstrued the nature
of the enquiry at arbitration proceedings, or undertook
an enquiry in
a misconceived manner, it follows that the Commissioner cannot be
said to have arrived at a reasonable result, as
there would not have
been a fair trial of the issues. This principle was expressed in
Head
of the Department of Education v Mofokeng and Others
[5]
as follows;
“
The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant factors informing
the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable equilibrium
has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the arbitrator,
a wrong answer
will not necessarily be unreasonable. By the same token, an
irregularity or error material to the determination
of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the issues, with the
result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted from the correct
path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.”
[24]
In a further
explication of the review test, and to the extent that it was argued
in this case that the Commissioner had misconstrued
the nature of the
enquiry, t
he
Labour Appeal Court in
Goldfields
Mining South Africa (Pty) Limited (Kloof Gold Mine v CCMA &
Others
[6]
held that in assessing whether the result of an award is
unreasonable, the reviewing court should not adopt a piecemeal
approach,
and must further enquire whether;
“……
..
(i) In terms of his or her duty to deal with the matter with the
minimum of legal formalities, did the process that the arbitrator
employed give the parties a full opportunity to have their say in
respect of the dispute? (ii) Did the arbitrator identify the
dispute
he or she was required to arbitrate? (This may in certain cases only
become clear after both parties have led their evidence)
(iii) Did
the arbitrator understand the nature of the dispute he or she was
required to arbitrate? (iv) Did he or she deal with
the substantial
merits of the dispute? (v) Is the arbitrator’s decision one
that another decision-maker could reasonably
have arrived at based on
the evidence?
[7]
[25]
In this case, as Swanepoel was dismissed for incapacity related to
ill-health, it can be accepted that the starting point for
the
Commissioner was to have regard to, and consider the provisions of
Items 10-11 of the Code of Good Practice: Dismissal, which
are
binding on all Commissioners as dictated by the provisions of section
188 (2) of the LRA. As per paragraphs 38 to 39 of the
award, the
Commissioner was clearly alive to these provisions. The applicant
nevertheless contended that the Commissioner failed
to appreciate and
comply with her duties under section 188 of the LRA in applying these
provisions correctly.
[26]
The provisions of Item 10 and 11 as contained in Schedule 8 read as
follows;
“
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 to state a case in response and
to be assistance by a
trade union representative or fellow employee.
(3)
The degree of
incapacity is relevant to the fairness of any dismissal. The cause of
incapacity may also be relevant…..
(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 those
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;
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.”
[27]
The above provisions
were interpreted by Molemela AJA (as she then was) in
IMATU
obo Strydom v Witzenburg Municipality & others
[8]
as follows;
“
My
reading of item 10 and 11 gives me the impression that an incapacity
enquiry is mainly aimed at assessing whether the employee
is capable
of performing his or her duties, be it in the position he or she
occupied before the enquiry or in any suitable alternative
position.
I am of the view that the conclusion as to the employee’s
capability or otherwise can only be reached once a proper
assessment
of the employee’s condition has been made. Importantly, if the
assessment reveals that the employee is permanently
incapacitated,
the enquiry does not end there, the employer must then establish
whether it cannot adapt the employee’s work
circumstances so as
to accommodate the incapacity, or adapt the employee’s duties,
or provide him with alternative work if
same is available.
I
must mention that I have no doubt in my mind that permanent
incapacity arising from ill-health or injury is recognised 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.
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?
I
am of the view that the provisions of item 10 and 11 are inextricably
tied and thus non-compliance therewith would render a dismissal
both
procedurally and substantively unfair……”
[28]
The issue therefore is whether the Commissioner correctly applied the
general principles embodied in Items 10 and 11 to the
evidence that
was presented before her, and further took into account the nature of
the onus under
section 192
of the LRA. As a point of departure, there
can be no dispute as per the evidence presented before the
Commissioner that Swanepoel
was indeed incapacitated as a consequence
of the hijacking incident. This fact can be gleaned from the medical
reports as shall
be referred to later in this judgment.
[29]
In accordance with
the provisions of
section 188
(1) (a) of the LRA, the
reason
for the dismissal must be fair. The reason for a dismissal in this
case has its genesis in the ‘allegations’ or the
nature
of the enquiry leading to the dismissal. The notice of
incapacity enquiry
[9]
issued to Swanepoel read as follows;
“
1.
You are required to attend an incapacity enquiry at …….,
to assess your medical incapacity to continue your employment due to
your ill-health.
2.
A doctor’s certificate (s) must be provided for your period of
absence.
The certificate must reflect the nature of your illness, if
you are fit for duty and if not the length of your absenteeism
[30]
At the time that the disciplinary or incapacity enquiry was convened,
inclusive of 16 April 2015, it can be accepted that Swanepoel
had
made available, various medical reports in respect of her condition.
To the extent that the central issue in regards to the
notice was the
provision of medical certificates indicating the nature of the
illness, the periods of absence, and whether Swanepoel
was fit for
duty or not, these reports in my view answered the applicant’s
enquiries to a large extent. To this end, any
contention that
Swanepoel’s dismissal was fair as contended by Pretorius at the
arbitration proceedings, on the basis that
she had not provided the
medical certificates as requested cannot be sustainable, as she had
done so. Those reports were made available
and it does not appear
anywhere in the record that they were not accepted because they were
late.
[31]
At some point during his evidence, Pretorius was asked by the
Commissioner whether he disputed the medical reports. His answer
was
that the contents of reports, and not the reports themselves were
disputed. If this was the case, unfortunately for Pretorius,
he could
not have been in a position to dispute the contents of the report
unless through the evidence of a medical practitioner
or a
psychologist. It was therefore simply not sufficient for the
applicant to dispute the contents of the medical reports without
evidence in rebuttal.
[32]
As can further be
gleaned from the record of proceedings
[10]
,
it would appear that the sole purpose that Pretorius would have
wanted Swanepoel’s doctors, especially Dr Schronen to testify,
was for him to give reasons why the reports were not furnished on
time. As to what value an answer to that question would have
added to
the determination of the main issues is unclear, as the report which
was sought was ultimately made available and accepted.
As the
Commissioner had correctly pointed out, it was for the applicant to
subpoena Dr Schronen if it wanted to, and not for the
Commissioner to
subpoena a witness.
[33]
It is accepted that
on the principles long established in
Mgobhozi
v Naidoo NO and Others
[11]
that
generally, medical certificates not in the form of an affidavit
constitute hearsay evidence. However, where the medical certificate
itself is not contested, and a party merely seeks to know the reason
from the medical practitioner why that certificate was not
made
available at a particular time when requested, rather than be
questioned on the contents of it, this in my view cannot
add
any value to the determination of whether an employee was permanently
or temporarily incapacitated.
In any event, at some point during the arbitration proceedings,
Pretorius had reserved the applicant’s right to subpoena
Dr
Schronen. The applicant nevertheless opted not to do so.
[34]
I accept that the medical report of Dr Schronen took longer than
necessary to be available. Be that as it may, the fact that
Moolman
gave Swanepoel an opportunity to secure that report, which she had
ultimately done and presented prior to the final outcome
being made
can only support her contention that the decision to dismiss her on
the basis that she had failed to make available
those reports is
spurious and unfair in the extreme. The Commissioner was therefore
correct in rejecting Pretorius’ assertion
that Swanepoel
was dismissed for not producing the required information about her
condition.
[35]
I did not understand it to be the applicant’s case that these
medical reports did not answer its concerns. The report
that was
issued by the Clinical Psychologist, Rani Prinsloo on 25 February
2015 reads as follows;
“
To
whom it may concern,
As you are
aware, Lisa Swanepoel was involved in an attempted hijacking and
robbery while working away from the office.
This
traumatic incident has resulted in her currently being under severe
psychological strain. Her symptoms include: hyperarousal,
exaggerated
startle response, flashbacks, nightmares, social avoidance, anxiety
and panic. There are various triggers associated
with the trauma that
induce a feeling of anxiety and panic, such as driving alone, and
being alone. These symptoms should decrease
over time as we work
therapeutically, but is not an instant process.
It is
recommended that Lisa continue therapy until these symptoms reside.
Various accommodations also need to be made at work for
the time
being. If she has to go into an area she will feel unsafe, it would
be advisable if a driver can accompany her, as the
anxiety or panic
attacks it will trigger at present to drive in areas alone where she
feels unsafe will render her incapable of
performing what is
expected.
Please
understand that at present she is psychologically vulnerable.
Kind
regards….”
[36]
Following the convening of the incapacity enquiry, Dr. Schronen had
then issued a detailed medical report on 15 April 2015,
and had
confirmed
inter alia
that;
a)
Swanepoel was seen on a regular basis and
was diagnosed with severe PTSD as a result of the hijacking incident
b)
She was currently on medication and was
receiving psychotherapy;
c)
The condition was treatable in the long
term and the prognosis in her case should be good
d)
Currently she was not able to function at
work and she was given sick leave.
e)
She would be monitored every week to
monitor her response to medication
[37]
From the medical certificates/reports that that were before Moolman,
I did not understand the applicant’s case to be
that it
disputed the fact that Swanepoel was incapacitated. Whether the
incapacity was permanent or temporary was an issue to be
assessed and
determined from the various medical reports. Prior to examining how
Moolman dealt with these reports in arriving at
his conclusion, an
observation made by the Commissioner in regards to the provisions of
items 10 and 11 is worth repeating.
[38]
The Commissioner took into account that in accordance with item 10
(4), and to the extent that Swanepoel was injured on duty,
the
applicant failed to give particular attention to her. On the contrary
according to the Commissioner, the applicant took actions
that in
fact compounded Swanepoel’s condition, viz, how it dealt with
Swanepoel’s requests to attend therapy sessions,
which the
applicant had told her that she would only do so at her cost, or by
taking unpaid leave which she had to apply for in
advance, and which
in any event it could be granted if the operational requirements
permitted.
[39]
The Commissioner further in regards to the requirements of item 10
(4) pointed out that amidst Swanepoel’s medical problems,
the
applicant saw it fit to call her to attend a restructuring meeting
whilst she was on sick leave, and further threatened to
subject her
to some misconduct investigation.
[40]
In my view, the conclusions reached by the Commissioner as above
cannot be faulted, as the provisions of item 10 (4) places
a
particular obligation, onerous as it may seem, on the employer in
circumstances where an employee suffered an injury on duty.
There is
therefore no basis for any conclusion to be reached that the factors
identified by the Commissioner as being contrary
to the purport of
item 10 (4) had no relevance to, or relation to the decision reached.
These incidents or factors should also
be viewed within the context
of Swanepoel being compelled to make hard choices pertaining to her
future employment as a result
of the applicant’s restructuring
hardly a few days after her traumatic incident. These events were
clearly not conducive
to Swanepoel’s healing or recovery
process, and had further impacted on the question whether the
applicant had accommodated
Swanepoel and her incapacity.
[41]
The applicant for whatever reasons, paid scant regard to the
Commissioner’s observations in this regard when contending
that
the award was reviewable. These factors were properly considered
within an application of the provisions of item 10 (4) of
the Code,
and I accept that the Commissioner’s analysis and observations
in this regard as pertinent to the issues and final
determination as
to whether the dismissal was fair.
[42]
In regards to
whether an assessment was made whether Swanepoel’s incapacity
was temporary or permanent, it is further instructive
to note that
during the arbitration proceedings, the Commissioner had pointed out
and questioned Moolman in regard to his conclusions
having had regard
to Dr. Schronen’s latest report. Since on Moolman’s
version it was clear that Swanepoel was not fit
duty, he was
questioned about his outcome which was that she should be
‘temporarily boarded’
[12]
.
In response to this pertinent question, Pretorius, who was then
representing the applicant (and was to testify after Moolman),
intervened and stated the statement referred to a dismissal, and that
this was no longer an issue as it was common cause that Swanepoel
was
dismissed
[13]
.
Moolman’s direct response however was that reference to
‘temporarily boarded’ meant that Swanepoel could not
be
employed and claim benefits. It was only when Moolman was
cross-examined by Swanepoel that Pretorius again intervened
and
‘clarified’ that the outcome of ‘temporarily board’
was rectified at some point via e-mail, wherein
Swanepoel was advised
that she was in fact dismissed
[14]
.
Moolman flowing from Pretorius’ intervention then contended
that in fact, Swanepoel was not furnished with a copy of his
original
outcome, and he confirmed that he had corrected his initial outcome,
and replaced it with dismissal.
[43]
In my view, it is at
that point of Moolman’s evidence that the applicant’s
case faltered. As per the requirements of
section 188
(1)
(a) of the LRA, the
reason
for the dismissal must be fair.
An
outcome to ‘temporarily board’ an employee
following an incapacity enquiry means exactly that, and cannot be
equated with a dismissal. As I understood Moolman’s evidence,
his decision to deem Swanepoel as ‘temporarily boarded’
in his understanding meant that this was to enable her to claim
benefits from the Department of Labour for the period that
she
was not able to perform her functions
[15]
.
[44]
From Moolman’s conclusions as above despite Pretorius’
interventions, it can be accepted that as the chairperson
of the
enquiry, he had made his own assessment of the medical reports,
acknowledged and accepted that Swanepoel’s condition
was
temporary, hence the initial decision not to dismiss her but to
‘temporarily board’ her. That conclusion was also
in line
with Dr Schronen’s report which indicated that Swanepoel’s
condition was treatable in the long term and that
her progress
‘should be good’.
[45]
The applicant as
correctly pointed out on behalf of Swanepoel also conceded in its
replying affidavit
[16]
that from Dr Schronen’s report, it was possible for Swanepoel
to return to work. The fact that as at the time of the arbitration
proceedings Swanepoel was still not capable of resuming her duties is
neither here nor there contrary to the submissions made on
behalf of
the applicant, as it is the facts as presented to Moolman at the time
of the incapacity enquiry that were determinative
of whether her
incapacity was temporary or permanent. The applicant in my view
further appears to misinterpret the principle enunciated
in
Unitrans
Zululand (Pty) Ltd v Cebekhulu
[17]
.
That matter concerned a dismissal for operational reasons. The
principle enunciated therein that
with
regard to procedural fairness, the question is not whether a fair
procedure was followed in Court, but whether, prior to the
dismissal,
the employer followed a fair procedure
[18]
remains of universal application irrespective of the reason or nature
of the dismissal.
[46]
I did not however understand the principles enunciated in
Unitrans
in regard to substantive fairness to be of general application
irrespective of the reason for a dismissal. A dismissal for
misconduct
or incapacity cannot by all accounts be the same as one
for operational requirements, as different principles and guidelines
apply
as provided in Schedule 8 and
section 189
of the LRA. An
employer cannot therefore, for the purposes of a dismissal related to
medical incapacity, rely on a different reason
for the dismissal at
arbitration proceedings. It is bound to justify the reason for the
dismissal as it took place at the internal
enquiry, as this is what
the provisions of
section 188
(2) of the LRA require of the
Commissioner to determine. The fact that proceedings at arbitration
are
de novo
does not imply that an employer is permitted to
invent any reason unrelated to the original one for a dismissal based
on misconduct
or incapacity at arbitration proceedings.
[47]
To come back to Moolman’s initial outcome, if and as when it
was altered at a later stage, it is not clear at what point
this
change took place and the reasons in that regard. An employer, or
chairperson of an enquiry is not permitted in my view, after
an
enquiry of any nature and outcome in that regard, to unilaterally
change that outcome without some form of procedure being followed.
The affected employee is entitled to know the reasons, if any, why an
initial and less harsh outcome was substituted with that
of a
dismissal. To simply attribute this procedural
irregularity/unfairness as a ‘mistake’ that was later
rectified
by an e-mail appears to be an attempt at sugar-coating
unfairness. The fact of the matter as the Commissioner pointed out
during
Moolman’s evidence is that Swanepoel was not dismissed,
and the later decision to suddenly dismiss her appears to be an
afterthought.
Furthermore, Pretorius’ own version that the
other reason for dismissing Swanepoel was due to the applicant’s
operational
requirements casts doubts on the real reason Swanepoel
was dismissed. Even if Pretorius’ alternative reason was to be
accepted,
this could not have been fair as any dismissal based on
operational requirements had to be in compliance with the provisions
of
section 189
of the LRA.
[48]
enquiry, and if indeed it was the reason that Swanepoel was
dismissed, it could not have been fair. These observations however
appear to be an issue which was neither explored with the
Commissioner nor pursued with any seriousness by either party during
these review proceedings. They are however indicative of the fact
that the applicant does not appear to be certain as to the reason
Swanepoel was dismissed.
[49]
Significant however
with Moolman’s evidence was whether as the Commissioner had
asked him, any attempts were made to accommodate
Swanepoel to another
job. This required an examination of the nature and extent of
Swanepoel’s incapacity. His response was
that it had not
occurred to him that she could be accommodated in a different
position, and further that he was not aware that
she had offered to
come back to work subject to therapy
[19]
.
From that evidence, the Commissioner’s conclusions therefore
that the applicant had not made any attempt to find out how
long
Swanepoel was likely to be unfit for duty, and/or made attempts to
accommodate her, cannot be faulted.
[50]
It is trite that the employer has a duty within the context of an
incapacity enquiry to accommodate an incapacitated employee.
This is
even moreso in circumstances where that employee was injured in the
course of her official duties. This means that possible
alternatives
must be explored and exhausted in consultation with the employee, and
it is only thereafter that the ultimate decision
to terminate the
employment relationship can be considered. In this case, the
recommendation of Dr Prinsloo was that Swanepoel
should be
accommodated, and the Commissioner’s conclusion that the
applicant was found wanting in this regard is unassailable.
[51]
To the extent that Moolman had concluded that based on Dr Schronen’s
report Swanepoel was not fit for duty, there does
not appear to be
anything in his outcome report that indicated that other alternatives
were looked at to accommodate Swanepoel’s
incapacity. On
Moolman’s own version, he was not aware that Swanepoel could be
appointed in another position, and from the
record of the enquiry, it
does not appear that he had bothered to enquire from the applicant
whether that could be done. As already
indicted however, his initial
inclination was to deem her as temporarily boarded.
[52]
The applicant’s further submission was that the Commissioner
misconceived her duty in that she mistakenly came to the
conclusion
that the failure by the applicant to follow a fair procedure
automatically meant that the applicant was unable to prove
that the
dismissal was substantively justified. As pointed out in
IMATU
obo Strydom
, the provisions of item 10
and 11 are inextricably tied, and non-compliance therewith would
render a dismissal both procedurally
and substantively unfair. Thus,
once it was accepted that Swanepoel’s incapacity was temporary,
on Moolman’s own version,
it was apparent that the applicant
had not made any attempts to accommodate her, let alone establish
whether her incapacity could
be accommodated. The invariable
conclusion to be reached in the circumstances was that the dismissal
could not have been procedurally
and substantively fair. One can only
conclude that an incapacity dismissal is the only option once all
other avenues have been
explored, including accommodating the
incapacity through whatever means necessary.
[53]
It was submitted on behalf of the applicant that it had attempted to
accommodate Swanepoel by providing her with a driver when
she
travelled in areas which were regarded as unsafe, but that she had
stayed away from work for the vast majority of the period
since the
hijacking incident. This however is not the point, as first, she was
off from duty as she was booked off sick, which
fact does not appear
to have been challenged. The second issue is that
there
was a need on the part of the applicant to demonstrate that there
were attempts to adapt her work circumstances so as to accommodate
the incapacity, or adapt her duties, or provide her with alternative
work if same is available. None of these were done as per
the
findings of the Commissioner, and it is not sufficient as the
applicant had sought to do, to shift the onus on Swanepoel to
demonstrate that her position (incapacity) could change and be able
to fulfil her duties at some point.
[54]
The applicant’s further contention was that
there was no medical evidence to suggest that had Swanepoel been
permitted greater
flexibility and less stressful circumstances in her
job, she would have been able to return to work sooner. It was
further contended
that to the extent that the Commissioner advised
Pretorius not to cross-examine Swanepoel on that issue, the review
application
ought to succeed. These contentions are unsustainable in
that not every alleged irregularity on the part of a
Commissioner
leads to a reviewable defect. The ultimate test is
whether as pointed out in
Goldfields
,
the Commissioner in terms of her duty to deal with the matter with
the minimum of legal formalities, gave the parties a full opportunity
to have their say in respect of the dispute, i.e. whether there was a
fair trial of the issues. In my view, the Commissioner cannot
be said
to be found wanting in this regard.
[55]
On the whole therefore, upon an examination of the award and the
pleadings as they are before the court, combined with the
submissions
made on behalf of the parties, I am
satisfied that
the Commissioner properly identified the dispute she was required to
arbitrate, understood the nature of the dispute
she was required to
arbitrate, and dealt with the substantial merits of the dispute.
There is no basis for a conclusion to be reached
that in considering
the provisions of Items 10 and 11 of the Code, the Commissioner did
so incorrectly, or applied those principles
in an incorrect manner.
There is further no basis for a suggestion that the Commissioner
diverted from the correct path in the
conduct of the arbitration or
failed to address the question raised for determination. In the end,
the Commissioner’s decision
is one that another decision-maker
could reasonably have arrived at based on the evidence that was
placed before her.
[56]
I have further had regard to the considerations of law and fairness
in respect of the issue of costs, and I am satisfied that
there is no
reason why Swanepoel should not be entitled to the costs of this
application. In the premises, the following order
is made;
Order:
i.
The application to review and set aside the arbitration award issued
by the Third Respondent
under case number WECT7539/15 dated 28 August
2015 is dismissed with costs.
_________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. F Rautenbach
Instructed
by:
Carelse Khan Attorneys
For
the First Respondent:
Adv. G Viljoen
Instructed
by:
Andrews & Co Attorneys
[1]
Page
156 of record of proceedings
[2]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) at para 110.
[3]
2013
(6) SA 224 (SCA)
[4]
At
para 25
[5]
[2015]
1 BLLR 50
(LAC) at paragraphs [30] to [34]
[6]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 14
[7]
At
para 20
[8]
[2012]
7 BLLR 660
(LAC) at paras 6 - 9
[9]
Page
152 of the record of proceedings
[10]
Line
5 – 25 at page 495
[11]
(2006)
27 ILJ 786 (LAC)
[12]
Pages
Transcribed
Record at pages 354 to 355, and also page 156 of the record
[13]
Line
12 of the transcribed record at page 354
[14]
Line
15 of the transcribed record at page 360
[15]
Line
15 of the record of proceedings at page 351
[16]
At
paragraph 7.3
[17]
[2003]
7 BLLR (LAC)
[18]
At
paragraph 25 where it was held that;
“
It
was contended on behalf of the respondent that the Court a quo erred
in finding that the respondent’s dismissal was substantively
fair. The basis advanced in support of this contention was that the
substantive and procedural fairness of the dismissal were
so
intricately linked that, once the Court a quo had found that the
dismissal was procedurally unfair, it could not find that
it was
substantively fair because it was impossible to decide whether
dismissal was the only option available when alternatives
thereto
including bumping had not been properly considered in the
consultation process. This contention cannot be upheld. In
relation
to a dismissal, procedural fairness relates to the procedure
followed in dismissing an employee. Substantive fairness
relates to
the existence of a fair reason to dismiss. In relation to
substantive fairness the question is whether or not, on
the evidence
before the Court, and not on the evidence produced during the
consultation process, a fair reason to dismiss existed.
With regard
to procedural fairness, the question is not whether a fair procedure
was followed in Court. The question is whether,
prior to the
dismissal, the employer followed a fair procedure. The result hereof
is, therefore, that, if the evidence placed
before the court
establishes a fair reason to dismiss which was present at the time
of the dismissal, the dismissal is substantively
fair. It does not
matter, for purposes of determining the substantive fairness of the
dismissal, that such reason was not the
subject of discussion during
the consultation process. The fact that the reason for dismissal was
never a subject of consultation
matters only at the level of
procedure because in terms of
sec 189
of the Act, it should be a
subject of consultation.”
[19]
Lines
10 – 24 of Transcribed Record at page 355