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[2018] ZALCJHB 115
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Eicker v PSCBC and Others (JR2255/11) [2018] ZALCJHB 115 (13 March 2018)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 2255/11
In
the matter between:
A
EICKER
Applicant
and
PSCBC
First Respondent
N
G J MBILENI
Second Respondent
MINISTER
OF SAFETY & SECURITY
Third Respondent
SOUTH AFRICAN POLICE SERVICE
Fourth Respondent
Heard
:
15 February 2018
Delivered
:
13 March 2018
Summary:
Review – LRA s 145 – application of collective agreement
– temporary incapacity
leave.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an application to have an arbitration award by a Bargaining
Council panellist, Ms N G J Mbileni, reviewed and set aside.
It
concerns the application of a collective agreement known as
Resolution 7 of 2000.
Background
facts
[2]
The applicant, Mr Anton Eicker, was employed by the South African
Police Services (SAPS, the fourth respondent). He was diagnosed
with
post-traumatic stress disorder (PTSD). He applied for temporary
incapacity leave (TIL) and for ill health retirement. The
latter
claim has largely become moot as he has subsequently been dismissed
and that dispute is pending before another forum. But
his application
for temporary incapacity leave in terms of the relevant collective
agreement was rejected. His own doctors formed
the opinion that he
was unfit to work; but the Health Risk Manager said that he could
fulfil light duties in an alternative post.
The National Commissioner
of SAPS accepted the recommendation of the HRM. Eicker filed a
grievance. That was dismissed. He then
referred a dispute to the
Public Service Coordinating Bargaining Council (PSCBC, the first
respondent).
[3]
The arbitrator found that SAPS’s interpretation and application
of Resolution 7 of 2000 and the National Instruction 2
of 2004 was
correct. She found that the HRM was empowered to make recommendations
on whether or not an application for TIL should
be granted; and that
that presupposes that SAPS has a discretion to either accept or
reject the recommendation.
Review
grounds
[4]
The applicant’s review grounds, as set out in his founding
affidavit, are wide ranging and vague. But in oral argument
Mr
Kirstein
focused on two grounds of review:
4.1 The
arbitrator considered only Eicker’s application for temporary
incapacity leave and not
for ill health retirement; and
4.2 The
arbitrator did not properly consider the relevant clauses in the
collective agreement (Resolution
7 of 2000) and in the relevant
National Instruction issued by SAPS.
Evaluation
/ Analysis
[5]
The first review ground has largely become moot, given that Eicker
has since been dismissed. He has challenged that dismissal
and its
fairness is yet to be considered by the Bargaining Council. But if
that forum is to find his dismissal unfair, the arbitrator’s
decision on ill health retirement in this dispute may remain
relevant. And the nub of the review application is whether the
arbitrator’s
interpretation of the collective agreement is
reasonable.
[6]
The arbitrator characterised the dispute before her thus:
“
Whether [SAPS’s]
application and interpretation of the collective agreement namely
Resolution 7 of 2000 is correct”.
[7]
In her consideration of the evidence and argument before her, though,
the arbitrator considered the Resolution as well as National
Instruction 2 of 2004. Those two instruments, argued Mr Eicker,
compelled SAPS to grant him TIL; but SAPS argued that it retained
a
discretion.
[8]
The arbitrator considered the provisions of both instruments. Clause
4(a) of the National Instruction, as quoted by the arbitrator,
provides:
“
If an employee has exhausted
his or her sick leave entitlement for the sick leave cycle and,
according to a medical practitioner
requires to be absent from work
due to incapacity which is not permanent,
may
at the discretion of the
National Commissioner
[1]
be granted temporary incapacity leave with full pay for each such
period…”
[9]
Given that clear wording, the arbitrator reasonably concluded that
the National Commissioner of SAPS retains a discretion to
grant or
deny TIL. And clause 6(b) states that:
“
An employee who is absent from
work due to an alleged occupational injury or an occupational
disease, must complete and submit the
documents required for
temporary incapacity leave and the documents must be referred to the
health risk manager for verification
and validation of the period of
absence.”
[10]
That is what Eicker did. The HRM considered the documents and
recommended to the National Commissioner that TIL not be granted.
Exercising her discretion, the Commissioner accepted the HRM’s
recommendation. That is in line with the definition contained
in the
National Instruction:
‘“
health risk manager”
means a medical assessor appointed to examine and make
recommendations to the National Commissioner on
all applications for
incapacity leave, ill health retirement and injuries on duty of
employees.”
[11]
The arbitrator reasonably concluded that the HRM has to recommend a
cause of action to the National Commissioner; that the
HRM in this
case did so, having had regard to the views of various medical
practitioners; and the National Commissioner had the
discretion to
accept the HRM’s recommendation. That is a reasonable
conclusion, given the wording of the National Instruction.
[12]
Clause 4(6)(a) of the National Instruction also envisages that an
employee is only entitled to paid leave until he or she can
resume
duties:
“
An employee who sustains an
occupational injury or who contracts an occupational disease is
entitled to occupational injury and
disease leave with full pay from
the time he or she becomes unable to work,
(i)
until he/she can resume their duties; or
(ii)
until he/she is discharged from the Service after an inquiry as
contemplated in section 34 of the Act.”
[13]
The arbitrator may be criticised for not setting out her
interpretation of Resolution 7 of 2000 more fully and clearly. But
this Court has to consider whether her conclusion is reasonable,
given all the evidence before her. That included the Resolution,
which provides in clause 7.6:
“
Employees
who as a result of their work suffer occupational injuries or
contract occupational diseases shall be granted occupational
injury
and disease leave for the duration of the period they cannot work.”
[14]
In this case, the HRM concluded that Eicker could return to work,
albeit in a different capacity in a protected environment.
The
arbitrator concluded that, given this assessment, the National
Commissioner was entitled to accept the HRM’s recommendation.
That is a reasonable conclusion, based on the wording of the
collective agreement.
[15]
The arbitrator’s award,
albeit brief, included a reasonable interpretation of the collective
agreement. It is in line with
the principles of interpretation
summarised by Wallis JA in
Natal
Joint Municipal Pension Fund:
[2]
“
The present state of the law
can be expressed as follows. Interpretation is the process of
attributing meaning to the words used
in a document, be it
legislation, some other statutory instrument, or contract, having
regard to the context provided by reading
the particular provision or
provisions in the light of the document as a whole and the
circumstances attendant upon its coming
into existence. Whatever the
nature of the document, consideration must be given to the language
used in the light of the ordinary
rules of grammar and syntax; the
context in which the provision appears; the apparent purpose to which
it is directed and the material
known to those responsible for its
production. Where more than one meaning is possible each possibility
must be weighed in the
light of all these factors. The process is
objective not subjective. A sensible meaning is to be preferred to
one that leads to
insensible or unbusinesslike results or undermines
the apparent purpose of the document. Judges must be alert to, and
guard against,
the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used. To
do so in
regard to a statute or statutory instrument is to cross the
divide between interpretation and legislation. In a contractual
context
it is to make a contract for the parties other than the one
they in fact made. The ‘inevitable point of departure is the
language of the provision itself’, read in context and having
regard to the purpose of the provision and the background to
the
preparation and production of the document.”
[16]
In short, it would not be sensible to read into the relevant
instruments a construction that SAPS would be bound by the opinion
of
an employee’s doctors. A third party – the HRM –
had to consider the opinions of various medical practitioners.
Based
on those opinions and records, the HRM formed a view and made a
recommendation. The National Commissioner, exercising her
discretion,
accepted that recommendation. That is in line with the wording of the
two instruments. And the arbitrator’s finding
in that regard is
not unreasonable.
Conclusion
[17]
The award is not open to review.
[18]
With regard to costs, the
Constitutional Court in
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[3]
very recently reiterated:
“
The rule of practice that costs
follow the result does not apply in Labour Court matters. In
Dorkin
, Zondo JP explained the reason for the departure as
follows:
‘
The rule of practice that costs
follow the result does not govern the making of orders of costs in
this Court. The relevant
statutory provision is to the effect
that orders of costs in this Court are to be made in accordance with
the requirements of the
law and fairness. And the norm ought to
be that costs orders are not made unless the requirements are met.
In making
decisions on costs orders this Court should seek to strike
a fair balance between on the one hand, not unduly discouraging
workers,
employers, unions and employers’ organisations from
approaching the Labour Court and this Court to have their disputes
dealt
with, and, on the other, allowing those parties to bring to the
Labour Court and this Court frivolous cases that should not be
brought to Court.’
In this matter, there is nothing on
the record indicating why the Labour Court and Labour Appeal Court
awarded costs against the
applicant. Neither court gave reasons
for doing so. It seems that both courts simply followed the
rule that costs follow
the result. This is not correct.”
[19]
In this case, I take into account that this matter has a long
history; that Mr Eicker has suffered ill health; and that the
ensuing
litigation may have clarified, to an extent, some issues concerning
the collective agreement. Taking into account the considerations
of
both law and fairness, I do not consider a costs award to be
appropriate.
Order
[20]
I therefore make the following order:
20.1 The application for
review is dismissed.
20.2 There is no order as
to costs.
_______________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
P
Kirstein
Instructed
by Johan Gouws.
THIRD
AND FOURTH
RESPONDENTS:
P C
Pio
Instructed by the State
attorney.
[1]
My
underlining.
[2]
Natal Joint Municipal
Pension Fund v Endumeni Municipality
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) par [18].
[3]
[2018] ZACC 1
par 24-26.