General Motors South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (PR206/2016) [2018] ZALCPE 10; (2018) 39 ILJ 1316 (LC) (30 January 2018)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2018
>>
[2018] ZALCPE 10
|

|

General Motors South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (PR206/2016) [2018] ZALCPE 10; (2018) 39 ILJ 1316 (LC) (30 January 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: 14 September 2017
Judgment
delivered:  30 January 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and
set aside an arbitration award issued by the seventh respondent (the
arbitrator) on 14 October
2016. In his award, the arbitrator found
that the second to fifth respondents (the individual respondents) had
been unfairly dismissed
by the applicant and ordered their
reinstatement, with retrospective effect.
[2]
The material facts are not in dispute, and I do not intend to burden
this judgment with a detailed record of the events that
led to the
dismissal of the individual respondents. These are well summarised by
the arbitrator in his award. The dispute has its
origins in what was
referred to as a sick absence control procedure (SACP), agreed
between the applicant and the first respondent
(the union) in 2003.
The agreement was intended, amongst other things, to ‘
address
sick absence in a manner which is both procedurally and substantively
fair, within a control procedure that is consistent
with the
provisions of the code of good practice – schedule 8 of the
Labour Relations Act with specific reference to clauses
10 and 11
.’
The agreement provides further for the counselling of employees when
they reach the limit of 10, 20 and 30 days’
sick leave, and
again after having exceeded the 30-day limit. An employee who having
been counselled for exceeding the 30-day limit
and who is again
absent on account of illness within the same three-year cycle, will
be called upon to attend an enquiry consistent
with the provisions of
the Code of Good Practice.
[3]
The contracts of employment of each of the individual respondents
provides that a good attendance record and punctuality is
an
essential requirement and that any failure to comply with those
requirements, will reflect on the employee’s capacity,

entitling the applicant to terminate the employee’s services.
[4]
Each of the individual respondents had exceeded the 30-day limit, and
all of them took further sick leave with the result that
incapacity
enquiries were convened in respect of each of them. The notices
issued to the individual respondents state specifically
that they
would be consulted on their capacity to fulfil their job functions
and render services in the manner agreed upon in their
contracts of
employment. The individual respondents were further invited to submit
any additional evidence related to the medical
conditions which they
considered relevant to the enquiry.
[5]
In each case, the respective chairpersons found that the individual
respondents did not have the capacity to meet their contractual

obligations on account of excessive sick absence and in each case,
the respective chairperson decided that the sick absence trend
was
not likely to improve, and that the applicant could not fairly be
expected to continue with the employment relationship. The
employment
of each of the individual respondents was terminated. The individual
respondents disputed the fairness of the dismissals
and referred
disputes to the CCMA. These disputes were consolidated for the
purposes of the arbitration proceedings under review.
[6]
In his award, the arbitrator found that the testimony by the parties
and the documentary evidence presented during the proceedings

illustrated that the enquiries were not conducted as ill-health or
injury incapacity enquiries as contemplated by the statutory
Code of
Good Practice, but rather as enquiries into the failure by the
individual respondents to comply with the contractual obligations.
On
this basis, he went on to find that if the applicant had intended to
charge an individual respondents for a breach of the rule
in that
they were not complying with their contractual obligations to attend
work, it should have done so. He expressed the view
that the form of
incapacity at issue fell directly within the realms of what the Code
of Good Practice refers to as ill-health
incapacity and should have
been treated as such. The arbitrator’s reasoning is apparent
from the following passage:
23.
These were thus not the ill health incapacity inquiries, as required
to have been held in
terms of schedule 8 of the Act. The applicants
were not charged for breach of a rule relating to sick leave or sick
absence from
work. In terms of section 22 of the Basic Conditions of
Employment Act (the BCEA), and clause 13 of the applicants’
contract
of employment, they were entitled to be paid sick leave.
Said provisions does not specify that applicants, on having used all
their
paid sick leave would not be entitled to unpaid sick leave, or
where were granted, to an extension of the period of paid sick leave.

The learned author Dr John Grogan argues in his publication Workplace
Law 11
th
edition 2015, held the view that “
Although
it has been held that circumstances unconnected with an employee’s
physical or mental health that prevent an employee
from working may
qualify as ‘incapacity’, the LRA suggests that such cases
should be treated like other forms of dismissal’.
If
the respondents had thus intended to charge the applicants for breach
of a rule that they were not complying with their contractual

obligation to work, it should have charged the applicants
accordingly. But this was not done, as the applicants situation does

not fall into such other forms of incapacity as referred to by the
author. Their situations thus falls directly in the category
of ill
health incapacity and should have been treated as such… (Sic).
[7]
The arbitrator held further that the persons who had conducted the
enquiries had speculated, based on their own personal opinions
and
without any medical or specialist diagnosis, about whether the
medical conditions of each of the individual respondents would

improve.
[8]
In response to a submission by the applicant in these proceedings
that the individual respondents’ absence from work was

indicative of their incapacity to work, the arbitrator held that
there was no evidence that the individual respondents ‘could

not do their work, when they were at work’. It was thus
incumbent on the applicant to have dealt with the issues listed in

item 10 of schedule 8. Finally, there was an issue of alleged
inconsistency that had been raised by the individual respondents.
The
arbitrator did not consider it necessary to deal with this component
of the claim given his findings on the nature of the process
followed
by the applicant. Issues of alleged inconsistency are thus not
relevant to these proceedings.
[9]
In summary, the arbitrator’s reasoning is the following: the
individual respondents each underwent counselling after exceeding
30
days sick absence. The inquiries that the individual respondents all
subsequently faced were not incapacity inquiries as envisaged
by the
Code; they were inquiries into a failure to comply with contractual
obligations. Inquiries of this nature were inappropriate;
the
applicant ought to have conducted ill-health incapacity inquiries.
Further, absence from work is not in itself indicative of
any
incapacity to work; the individual respondents could do their work
when they were at work. The applicant had therefore failed
to
establish incapacity on the part of any of the individual respondents
and its failure to follow the prescribed procedure for
conducting
incapacity hearings rendered their dismissals substantively and
procedurally unfair.
[10]
The applicable legal principles are well-established. This court is
entitled to interfere with an award made by a commissioner
if and
only if the commissioner misconceived the nature of the enquiry (and
thus denied the parties a fair hearing) or committed
a reviewable
irregularity which had the consequence of an unreasonable result. The
failure by an arbitrator to attach particular
weight to evidence or
attachment of weight to the relevant evidence and the like is not in
itself a basis for review; the resultant
decision must fall outside
of a band of decisions to which reasonable decision-makers could come
on the same material (see
Herholdt v Nedbank Ltd
[2013] 11
BLLR 1074
(SCA)). In other words, the test is two-staged. First, the
applicant must establish a misconception of the nature of the enquiry

or some misconduct or misdirection on the part of the arbitrator. If
that is established, whether a decision is unreasonable in
its result
ultimately requires this court to c
onsider
whether apart from the flawed reasons of or any irregularity by the
arbitrator, the result could still be reasonably reached
in the light
of the issues and the evidence.
[11] In
Gold Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)), The Labour Appeal Court noted that a review court is not
required to take into account every factor individually, consider
how
the arbitrator treated and dealt with each factor and then determine
whether a failure by the arbitrator to deal with one or
more factors
amounted to a process-related irregularity sufficient to set aside
the award. The court cautioned against adopting
a piecemeal approach
since a review court must necessarily consider the totality of the
available evidence (at paragraph 18 of
the judgment). Specifically,
the questions for a review court to ask or whether the arbitrator
gave the parties a full opportunity
to have their say in respect of
the dispute, whether the arbitrator identified the issue in dispute
that he was she was required
to arbitrate, whether the arbitrator
understood the nature of the dispute, whether he or she dealt with a
substantial merits of
the dispute and whether the decision is one
that another decision-maker could reasonably have arrived at based on
the evidence
(see paragraph 20). So, when arbitrator fails to have
regard to the material facts it is likely that he or she will arrive
at a
decision that is unreasonable. Similarly, where an arbitrator
fails to follow proper process he or she will arrive at an
unreasonable
outcome. But, as the court emphasised, this is to be
considered on a totality of the evidence and not on a fragmented,
piecemeal
analysis (at paragraph 21).
[12]
Given the applicants grounds for r
eview, it is also necessary
to summarise, brief terms, the legal principles applicable to sick
absence. In
AECI Explosives Ltd (Zomerveld) v Mambalu
[1995] 9
BLLR 1
(LAC), the Labour Appeal Court said the following:
It
seems to us that the company, having accepted the authenticity of the
medical certificates, was entitled to rely only on incapacity.
It was
entitled to dismiss the applicant… For his incapacity to
perform his job with such incapacity [was] due to persistent
absence
from work because of genuine ill-health… per Tebbutt J in
Hendricks v mercantile and general reinsurance company
of SA Ltd
(1992) 15ILJ 34 (LAC) at 312 I-J. The test for substantive fairness
was stated by Tebbutt J at 313A-D to be the following:
‘
The
substantive fairness of the dismissal depends on the question whether
the employer can fairly be expected to continue the employment

relationship bearing in mind the interests of the employee and the
employer and the equities of the case. Relevant factors would
include
inter alia the nature of the incapacity; the cause of incapacity; the
likelihood of recovery, improvement or recurrence;
the period of
absence and its effect on the employer’s operations; the effect
of the employee’s disability on other
employees; and the
employees work record and length of service.’
[13]
Turning to the first ground for review, the applicant contends that
the arbitrator misdirected himself to the extent that he
declined to
recognise the category of incapacity arising from persistent
intermittent absences on account of ill health. Instead,
he
simplistically reasoned that incapacity could not be present as there
was no evidence before him that the individual respondents
could not
do the work, when they were at work. Put another way, the applicant
contends that the arbitrator failed to realise that
intermittent
absence due to ill-health is a recognised basis for a dismissal on
account of incapacity. Once this is accepted, so
the applicant
contends, the arbitrator committed a misdirection that amounts to an
error of law which had a distorting effect on
the outcome of the
proceedings under review.  The second ground for review is that
the arbitrator misdirected himself by finding
that the proceedings as
initiated and conducted by the applicant were not incapacity
enquiries. The arbitrator’s reasoning
in this regard would
appear to be that because reference was made (especially in the
findings made by the respective chairpersons)
to the individual
respondents’ inability to comply with their contractual
obligations, the enquiries unavoidably had to be
something other than
genuine incapacity enquiries, and that the applicant ought properly
to have conducted disciplinary hearings.
The third ground for review
is that the arbitrator failed to draw reasonable conclusions in
relation to the individual respondents’
lack of capacity. In
particular, the applicant attacks the finding that the chairpersons
of the enquiries simply speculated about
the individual respondents’
medical conditions and prognosis. Fourthly, the applicant contends
that the arbitrator misconceived
the nature of the enquiry by finding
that the applicant ought to have presented evidence to prove that the
individual respondents
could not do their work, when at work. The
applicant submits that this indicates that the arbitrator require the
applicant to prove
that the individual respondents were suffering
from some form of disability or incapacity when at work. Fifthly, and
following
from the fourth ground of review, the applicant contends
that the arbitrator failed to take into account that during the
cross-examination
of the individual respondents, they effectively
conceded that they had not been able to bring their medical problems
under control.
Sixthly, the applicants referred to the arbitrator’s
finding that nothing prevented an employee from taking unpaid sick
leave
either in terms of their contracts or the BCEA and contend that
in coming to this finding, the arbitrator disregarded material
evidence in the form of the SACP, an agreement concluded specifically
for the purpose of addressing sick absence. The seventh ground
for
review is that the arbitrator, by finding that the applicant had
failed to give effect to items 10 and 11 of the Code of Good

Practice, failed to give consideration to the material evidence
placed before him. Finally, the applicant contends that the
arbitrator’s
finding that the enquiries had been conducted as
disciplinary enquiries rather than incapacity enquiries was not an
issue raised
by any of the individual respondents; the arbitrator had
thus introduced a challenge to procedural fairness for the benefit of
the individual respondents which they had not even raised themselves.
[14]
In my view, by declining to recognise a category of incapacity
arising from persistent intermittent absence from work, the

arbitrator committed a material misdirection that amounts to an error
of law. The passage from
AECI
Explosives (Zommerveld) v Mambalu
referred to above makes clear that the LAC has accepted that
persistent absence form work because of genuine ill-health is a
legitimate
ground on which to terminate employment, and one that
relates to the capacity and not the conduct of the employee. The
passage
from
Hendricks v
Mercantile General Reinsurance Company
(quoted with approval in
Mambalu
)
is also authority for the proposition that substantive fairness in
these circumstances requires an assessment of whether the employer

can fairly be excepted to continue the employment relationship given
the nature of the incapacity, its cause, the prospect of recovery,

improvement or recurrence, the period of absence and its effect on
the employer’s operations and on other employees, and
the
employee’s work record and length of service.  These
authorities were binding on the arbitrator (as they are on
this
court) and it was not open to him to ignore them.
[15]
The arbitrator’s reference to John Grogan’s ‘Workplace
Law’ in paragraph [23] of his award is entirely
misplaced.
Reading the passage on which the arbitrator relied in context, it
suggests no more than that the employee’s incapacity
must arise
from illness or injury and not some form of ‘operational
incapacity’, in the case referred to, occasioned
by the
employee’s detention in custody on suspicion of a crime.
Indeed, the author goes on specifically to recognise and
confirm that
repeated absence for short periods constitutes an exception to the
general rule that dismissal is generally considered
inappropriate if
the employee’s absence is likely to be of a short duration. In
the former instance, the author confirms,
with reference to the
AECI
judgment, that dismissal is in principle permissible in a case of
habitual absenteeism, even if for medical reasons.
[16]
In short, the arbitrator’s refusal or failure to recognise a
category of dismissal that   permits an employer
to dismiss
an employee for persistent or habitual intermittent absence on
account of ill-health constitutes an error of law and
renders his
award reviewable. It warrants mention that the arbitrator’s
finding effectively ignores the terms of the collective
agreement
between the parties on the manner in which repeated absence from work
was to be regulated. This is particularly apparent
from these finding
that the periods of paid sick leave established by the BCEA did not
preclude the granting of an extension of
that leave, even on an
unpaid basis. The express purpose of the collective agreement was to
regulate the manner in which absence
on account of ill-health would
be managed. It was incumbent on the arbitrator to give effect to that
agreement.
[17]
There is also no basis on the evidence to sustain the arbitrator’s
finding that the hearings conducted by the applicant
were, in effect,
enquiries into allegations of a failure by the individual respondents
to comply with their contractual obligations.
The arbitrator’s
finding appears to have its roots in the wording of the findings in
respect of each of the individual respondents.
That wording, in one
way or another, refers to an incapacity to ‘fulfil contractual
agreements’ or ‘fulfil contractual
obligations’.
These findings must be appreciated in the context of the nature of
each enquiry and the findings as a whole.
It cannot be deduced
from a single sentence making reference to contractual obligations
that the real as opposed to the apparent
purpose of the inquiry was
to determine the existence of any breach of contract by the
individual respondents. The fact remains,
as recognised by the SACP,
that the obligation to attend work regularly is a contractual
obligation.  To suggest that an assertion
that the individual
respondents were unable to meet this obligation on account of their
incapacity to attend work regularly amounts
to an allegation of a
breach of contract and thus a workplace rule, manifestly ignores the
context in which the incapacity hearings
were conducted and in which
the respective findings against the individual respondents were made.
The case against the individual
respondents was not that they had
breached their employment contracts or that they had breached any
workplace rule. The fact that
they were unable on grounds of
incapacity to attend at work with a frequency that their contracts of
employment recognised and
demanded did not have the effect of
migrating the issue from capacity to conduct – the applicant
was fully entitled to treat
the matter as it did, as a case of
incapacity that resulted in a failure to meet acknowledged
contractual obligations relating
to attendance at work.
[18]
On the basis then that it was permissible in law for the applicant to
dismiss the individual respondents on account of excessive

intermittent absence on account of ill-health, and given that the
nature of the inquiry is one that relates to incapacity and not

misconduct, the issue is whether the dismissals of any of the
individual respondents were unfair on any one or more of the grounds

advanced by them. On the evidence, the need to maintain satisfactory
levels of attendance was clearly a capacity that an employee
was
required to demonstrate to remain employed. The fact remains that in
each instance, the source of the alleged incapacity or
inability to
comply with attendance requirements was ill- health.
[19]
The arbitrator did not consider it necessary to consider the
circumstances of each individual applicant – the sweeping

rejection of the approach adopted by the applicant and the dismissal
of the grounds for termination of employment in each case
as
speculative, rendered it and necessary for him to do so. Given that
this court is required to determine whether the result of
the
proceedings under review can stand having regard to the evidence
notwithstanding any error or misdirection by the arbitrator,
I intend
to consider briefly whether the arbitrator’s finding of
substantive unfairness is capable of being upheld. It warrants

mention that contrary to the arbitrator’s finding, the findings
on the evidence it served before each person can hardly be
dismissed
as speculative. On a conspicuous of all the evidence, the findings
made were reasonable, given the totality of the information
available
to the chairperson’s concern, including information on the
individual respondents past attendance record, the distribution
of
periods of absence, the reasons for absence, and whether or not any
change had occurred suggesting any prospect of improved
future work
attendance.
[20]
The second respondent had exceeded the 30 day limit recognised by the
SACP by a considerable degree. By the date of his dismissal,
he had
accumulated 60% more than the permissible number of days absent on
account of illness. Further, there were some five months
left in his
sick leave cycle. The evidence shows that he presented with eight
different diagnoses in the course of the sick leave
cycle in
question. In the circumstances, it can hardly be said that there was
any indication that the situation was likely to improve.
The best
evidence available to the applicant was that, more likely than not,
the second respondent would continue to be absent
from work and that
he accordingly lacked the capacity to ensure that he attended at work
with sufficient regularity to meet his
obligations both in terms of
his employment contract and the SACP.
[21]
The third respondent was absent for 36 days during the relevant sick
leave cycle, exceeding the agreed limit by some 20%. Evidence

suggested that he presented with seven different diagnoses in the
course of the sick leave cycle and that a marked improvement
in his
ability to attend work on a regular basis was unlikely. On the best
evidence available, it was more likely than not that
the third
respondent would continue to be absent from work on an excessive
basis, and that he lacked the capacity to ensure regular
attendance
at work.
[22]
The evidence suggests that the fourth respondent, who had accumulated
some 40% more than the permissible number of sick absence
days in the
relevant leave cycle, had accumulated these days at a rapid rate,
given that there were some 17 months remaining in
the sick leave
cycle. The evidence also suggested that the fourth respondent
presented with nine different diagnoses in the course
of the sick
leave cycle in question, that these illnesses were persistent and
that there was little prospect of any marked improvement
in his
ability to attend work on a regular basis.
[23]
In the case of the fourth respondent, the same reasoning applies. The
fourth respondent had exceeded the agreed 30 day limit
by a
considerable margin – he had been absent for hundred and 30
days during the applicable sick leave cycle. These days
were
accumulated at a rapid rate. Despite the further counselling session
undertaken in May 2015, the situation did not improve.
The relevant
records disclosed that the fourth respondent presented with seven
different diagnoses during the course of the relevant
sick leave
cycle. Insofar as alternative employment is concerned, in the fourth
respondent’s case, there was clear evidence,
largely
undisputed, that it was not viable simply to appoint the fourth
respondent into a clerical position since no such vacancy
existed at
the time and skills were required that the fourth respondent did not
possess or could not acquire within a reasonable
time. The evidence
suggests that the fourth respondent would more than likely continue
to be absent from work excessively, and
that he lacked the capacity
to ensure regular attendance at work.
[24]
In short, there is nothing in the record of the proceedings under
review to suggest that despite the arbitrator’s misdirection
in
relation to the nature of the enquiries conducted by the applicant,
the arbitrator’s finding of unfair dismissal can be
sustained.
The arbitrator’s award thus stands to be reviewed and set
aside.
[25]
Given the above findings, it is not necessary for me to consider the
applicant’s remaining grounds for review.
[26]
In successful review applications, this court ordinarily exercises a
discretion to either remit the matter to the CCMA for
rehearing, or
substitute the commissioner’s finding for one that is
appropriate. The source of this discretion is s 145 (4)
of the LRA,
which provides that this court may either ‘determine the
dispute in the manner it considers appropriate’
or ‘make
any order it considers appropriate about the procedures to be
followed to determine the dispute. The court ordinarily
takes into
account whether the result is a foregone conclusion, whether any
prejudice would be caused to the applicant by any further
delay,
whether the decision-maker has exhibited bias, and whether the court
is in as good a position to make the decision itself.
In
Palluci
Home Depot (Pty) Ltd Heskowitz and others
[2015] 5 BLLR 484
(LAC) the LAC said the following, at paragraph 58:
Where
all the facts required to make a determination on the disputed issues
before a reviewing court in an unfair dismissal or unfair
labour
practice dispute such that the court is in as good a position as the
administrative tribunal to make the determination,
see no reason why
a reviewing court should not decide the matter itself. Such an
approach is consistent with the paths of the Labour
Court under s 158
of the LRA, which primarily directed at remedying a wrong, and
providing effective and speedy resolution of disputes.
The need for
bringing a speedy finality to labour dispute is thus an important
consideration in the determination, by a court of
review, of whether
to remit the matter to the CCMA for reconsideration, or substitute
its own decision for that of the commissioner.
[27]
The court has before it all of the relevant material and little point
would be served by remitting the dispute to the CCMA
for rehearing.
Further, the interests of expeditious dispute resolution would be
best served by an order of substitution.
[28]
Finally, in relation to costs, this court has a broad discretion in
terms of s 162 of the LRA to make orders for costs according
to the
requirements of the law and fairness. In my view, both interests are
best served by there being no order as to costs. This
court has
conventionally been reluctant to make orders for costs where
genuinely aggrieved employees pursue legitimately felt grievances.

There is no good reason to make an exception in this instance.
I
make the following order:
1.
The arbitration award issued by
the seventh respondent on 14 October 2016 is reviewed and set aside.
2.
The award is substituted by the
following:
‘
The
applicants’ dismissals were substantively and procedurally
fair.’
3.
There is no order as to costs.
André
van Niekerk
Judge
REPRESENTATION
For the
applicant: Adv. FE le Roux, instructed by Chris Baker and Associates
For the
first to fifth respondents: Adv. L Voultsos, instructed by Gray
Moodliar Attorneys