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[2017] ZALCCT 47
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South African Police Service v Adendorf and Others (C659/2015) [2017] ZALCCT 47 (11 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
REPORTABLE
Case no: C659/2015
In
the matter between:
SOUTH
AFRICAN POLICE
SERVICE
Applicant
and
DENJIVILLE
ADENDORF
First
Respondent
S.
SAMUEL
N.O.
Second
Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
Third
Respondent
Heard
:
10 May 2017
Delivered
:
11 October 2017
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed review of an arbitration award under case number
PSSS121-14/15. The applicant dismissed the first respondent
(Adendorf) on the 15 August 2013 for misconduct in respect of charges
relating to absenteeism and pursuant to a disciplinary enquiry.
The
second respondent (the arbitrator) made an award of retrospective
reinstatement.
[2]
Adendorf was absent from work from 29 November 2012 to 5 February
2013. He was absent from his quarters during visits on 15
and 23
January 2013. He was charged for:
a. Absenteeism from work without
reason and permission;
b. Failure to produce medical
certificates for his periods of absences, 29 November 2012 until 14
January 2013 and from 18 January
2013 until 5 February 2013; and
c. Absence from barracks on 23 January
2013, 28 January 2013 and 31 January 2013.
[3]
The arbitrator stated in paragraph 6 of the Award that the essence of
Adendorf’s case: “was that the current charges
against
him were related to his medical diagnosis of ADHD which the
respondent was aware of and failed to act on and which failure
rendered the applicant unable to perform in the post that the
respondent posted him to. Furthermore that the respondent was
required
to investigate the reason for his absenteeism and consider
the medical report that recommended his transfer but elected instead
to deal with his absenteeism as misconduct.”
[4]
The Arbitrator found that the employer did not do enough to assist
Adendorf after his ADHD diagnosis. In paragraph 73 of the
Award, she
states the following:
“
I noted the respondent’s
evidence that it had expended great effort in assisting the applicant
but that he had rejected or
not cooperated with its efforts. I noted
however that the records relied on by the respondent related to
2010-11 during the applicant’s
substance abuse episode and did
not relate to the current charges arising from his absenteeism in
2012 and 2013 which was preceded
by a report of his medical
diagnosis. The respondent’s evidence relating to the Regulation
64 process did not explain with
any conviction why it was not
constituted during the period spanning the applicant’s
substance abuse from 2010 until his
medical diagnosis of ADHD between
September and October 2012 despite the persistent absenteeism during
the entire period or why
there were no records of it responding to
the medical diagnosis.”
[5]
The Arbitrator found that it was more probable than not that the
respondent processed Adendorff’s absenteeism as a form
of
misconduct. She found in paragraph 81 of her Award that: “the
applicant’s dismissal was not substantively fair since
the
respondent did not demonstrate that it followed a fair process when
confronted with the undisputed evidence of the applicant’s
alleged incapacity arising from his medical diagnosis in 2012.”
[6]
In its supplementary founding affidavit, the applicant stated that
the only documentary evidence before the Arbitrator that
pertained to
the diagnosis of ADHD, was the medical report issued by Dr Chanakya
Jonnalagadda MBChB, FC Psych (SA) dated 11 November
2012 which reads
as follows:
“
Denjiville Adendorf has been
admitted to Claro Clinic from 25
th
September 2012 till 8
th
October 2012. He was admitted due to work related stress, with
deteriorating performance at work related to the stress.
He stated that he had been transferred
to a new section within the Parliamentary Police Service in early
2012. This posting required
that he stand at a particular post for
the whole day, and that he really struggled to stand at this post for
prolonged periods
of time due to boredom. He stated that he would
initially attempt to stay at his post, but that over time, he found
it too boring
and would wander from his post. After a certain time,
he had started to become absent, and he would stay away from work, as
he
could not cope with the boredom. He stated that he had tried to
explain his problem to his superiors but that he did not feel that
they understood his problem.
He had been admitted to Claro Clinic
in 2011 for a substance abuse problem. He denied current drug use.
He has been assessed during his
admission, and was newly diagnosed with Attention Deficit
Hyperactivity Disorder. He has been started
on medication for ADHD,
and he is tolerating the medication well, and he states that it helps
him to concentrate much better. A
lot of work has also been done on
his communication skills, as the assessment has shown that he had not
been communicating his
needs clearly to his Superior Officers.
Though he is much more attentive, and
much less easily bored on medication, my professional opinion is that
he is not well suited
for a Post which he needs to remain at a
checkpoint for the whole day. I have met with his superior Officers
and have discussed
my opinion with them. I recommend that he be
transferred to a different post, which will be more challenging and
varied in the
work that he needs to do.”
[8]
At the arbitration Lieutenant Colonel Molotsi (Molotsi) who was
Adendorfs superior while he was stationed at Parliament testified
that since 2010 Adendorf had 20 disciplinary sanctions on his record.
Over and above his absences from work without permission,
he had been
declared unfit to carry a firearm, found guilty by a court of law and
in a departmental enquiry for forgery of a medical
certificate and
for damaging police vehicles without reporting it. Adendorf was also
arrested for assaulting his girlfriend and
for being in possession of
tik. Adendorf was given a sanction of dismissal suspended for six
months four times.
[9]
Molotsi had referred him to rehab once Adendorf’s parents had
told Molotsi that he was using drugs, something Adendorf
himself had
continuously denied. He testified that he had spent years trying to
assist Adendorf to “get him back on board”
as he put it.
[10]
The minutes of the pre-arbitration meeting recorded that the
arbitrator had to decide the following issue: “If
the
Applicant was treated unfairly and if dismissal was the correct
sanction for the misconduct at the time of the incident."
The
minute refers to dismissal for absenteeism. There is no indication in
that minute that incapacity was relevant to the dispute.
It was
common cause that Addendorf had not produced a medical certificate
for the absence from work except for one relating to
two days when
his doctor described his ailment as gastritis.
[11]
The grounds of review include that the decision of the Arbitrator was
one that a reasonable decision maker could not make.
One example
proffered for this ground merits mention and that is the Arbitrator’s
conclusion that “an employee charged
with absenteeism related
offences cannot be at fault if there are valid reasons for his
absence.” The evidence before her
did not establish that there
were valid reasons for his absence from work during the period for
which he was charged. Adendorf
was according to his own evidence
helped by the medicine he was prescribed for his ADHD. He had been
temporarily placed back at
E-Relief at Parliament because the section
he was transferred to after the ADHD diagnosis was headed by someone
who was chairing
another disciplinary hearing in which he was facing
more charges. Adendorff testified:
“
I was complaining to the –
the superiors or to my supervisors at E-Relief and nothing was done
and I just started booking
off sick again, not coming to work. If
they phoned to ask where, what, why don’t I come to work, I
tell them I can’t
cope at this post where I am posted.”
[12]
When asked if he would be able to work at Parliament if he was
reinstated, he said he would be at work at all times because:
“
my
mind-set, my self-discipline and the way I feel. That never-mind
attitude, now it is no longer there.
”
[13]
It appears obvious to the Court that a reasonable decision maker
could not have found that it was unfair for the SAPS to dismiss
Adendorf in the wake of his disciplinary history and its many efforts
over years to assist him, and in face of his continued misconduct.
There is no need in my view to refer to a multitude of cases and
developing jurisprudence to establish that the Award is reviewable.
Condonation was sought for the late filing of the founding papers and
issue taken by the applicant for the late filing of the answering
papers. Condonation is granted in respect of the non-compliance with
the Rules of Court. I therefore make the following order:
Order
1. The Award under case number
PSSS121-14/15 is reviewed and set aside and substituted as follows:
1.1 ‘The dismissal of the first
respondent was substantively fair.’
2. There is no order as to
costs.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant
:
Adv R. Nyman instructed by the State Attorney
First
Respondent
: Adv C. Bosch instructed by Marais Muller Hendricks
INC