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[2018] ZALCJHB 183
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General Motors South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (PR206/2016) [2018] ZALCJHB 183 (6 April 2018)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
CASE
NO: PR 206/2016
Not
reportable
In
the matter between
GENERAL
MOTORS SOUTH AFRICA
(PTY)
LTD
Applicant
and
NATIONAL
UNION OF METALWORKERS OF SA
First
Respondent
JEROME
SAMSON
Second
Respondent
JAMES
MACKRIEL
Third
respondent
LUBABALO
MDYOGOLO
Fourth Respondent
BRIAN
COETZEE
Fifth
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Sixth Respondent
FREDERICK
SAULS
N.O
Seventh
Respondent
Application
heard: 20 March 2018
Judgment
delivered: 6 April 2018
JUDGMENT
VAN
NIEKERK J
[1]
The respondents apply for leave to
appeal against the whole of the judgment delivered by this court on
30 January 2018. For convenience,
I refer to the parties as they were
cited in the review application. In its judgment, the court reviewed
and set aside an arbitration
award issued by the seventh respondent
(the arbitrator), in which he had found that the dismissals of the
second to fifth respondents
(the employees) were unfair, and
reinstated them with retrospective effect.
[2]
The reasons for reviewing and setting aside the award are set out in
the judgment, and I do not intend to repeat them here.
For present
purposes, it is sufficient to record that the review application
raised three primary questions. The first is whether
it was
permissible, at the level of principle, for the applicant to dismiss
employees who had exceeded the limit of 30 days on
account of
excessive and persistent albeit absenteeism due to ill health. The
second question is whether it was reasonable for
the arbitrator to
conclude that the hearings conducted by the applicant were not truly
incapacity hearings but hearings into allegations
of misconduct. The
third question is whether it was reasonable for the arbitrator to
come to the conclusion that the dismissal
of each of the individual
respondents was unfair because the decisions about the extent of
their incapacity were speculative. The
court found in favour of
the applicant in relation to each of these questions.
[3]
The respondents raise three broad grounds on which leave to appeal is
sought, each of which broadly and respectively relates
to the above
issues. The first relates to the category of dismissal and whether
the prevailing authority of
AECI
Explosives Ltd (Zomerveld) v Mambalu
[1995] 9 BLLR 1
(LAC) ought to have been distinguished; the second
relates to the nature of the enquiries conducted by the applicant;
the third
to the court’s findings in respect of the fairness of
the dismissals of each of the individual respondents.
[4]
In relation to the first ground, the respondents accept a category of
dismissal for persistent but intermittent absence on the
grounds of
ill-health, but seek to distinguish
AECI
(where that authority was established) on the basis that the facts in
that matter were not concerned with a collective agreement.
In my
view, the central issue is not whether a collective agreement formed
part of the factual matrix in
AECI
,
but whether the agreement in the present instance precluded a
category of dismissal such as that recognised by the LAC in
AECI
.
The collective agreement specifically envisages that employees would
be at risk of dismissal on account of persistent but intermittent
absence due to ill-health where absence exceeded the 30-day limit
established by the BCEA. In other words, dismissals in those
circumstances would be permissible, on the terms and in accordance
with the procedure established by the agreement. There is nothing
in
the collective agreement that precludes the applicant from dismissing
the employees for intermittent absence, in other words,
from applying
the principle established in AECI. In short, the collective agreement
acknowledges the principle and provides for
the terms of its
implementation. There is thus no merit in the first ground of appeal.
[5]
In relation to the second ground, the court concluded that in so far
as the arbitrator had held that the individual respondents
had been
dismissed for a failure to comply with their contractual obligations
(a form of misconduct), on the evidence, this was
simply not the
case. The evidence demonstrated that while the individual respondents
were unable to attend work with the regularity
that their contracts
required of them, it did not necessarily follow that the issue was
one of conduct and that any hearing ought
only to have been concerned
with allegations of misconduct. The court’s decision on this
point – i.e. that the applicant
was entitled to treat the
matter as one of incapacity due to ill-health – is hardly
controversial, and there is no merit
in the ground for appeal.
[6]
In relation to the third ground of appeal, that which concerns the
court’s decision in relation to the arbitrator’s
finding
that the applicant had speculated on the employees’ medical
conditions, it should be recalled that the applicant
did not take
issue with the assertion that the employees were capable of
performing their duties when they were at work. What was
at issue was
their inability to report at work with the required degree of
regularity. The number of days absence was an obviously
relevant
matter, as were the numerous counselling sessions held with each
individual, and the offers of support and assistance
offered each of
them by the applicant. The individual circumstances of each employee
are recorded in the judgment and need not
be repeated here, but none
of them establishes any degree of speculation on the part of the
applicant.
[7]
In short, none of the grounds for appeal have merit. The respondents
have failed to establish that another court would reasonably
come to
a different conclusion. The application stands to be dismissed.
Finally, here is no reason why costs should not follow
the result.
I make the following order:
1.
The application for leave to
appeal is dismissed, with costs.
André
van Niekerk
Judge