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[2019] ZALCJHB 199
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Legalwise Insurance South Africa v Kleinot NO and Others (JR502/15) [2019] ZALCJHB 199; (2020) 41 ILJ 2862 (LC) (15 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA HELD AT JOHANNESBURG
case no: JR502/15
In
the matter between:
LEGALWISE
INSURANCE SOUTH AFRICA
First
Applicant
and
KLEINOT
K.L
N.O
First
Respondent
THE
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
Second
Respondent
BIFAWU
OBO N.P SHEZI
Third
Respondent
Heard:
18 February 2019
Delivered:
15 August 2019
JUDGMENT
NORTON AJ
Introduction
[1]
This case concerns a review of an arbitration award in which the CCMA
Commissioner found that the employer had unfairly dismissed the
employee incapacitated by a fall at work, and ordered backpay of
R117
166,95 and reinstatement from 1 March 2016.
[2]
The Applicant is Legal Expenses Insurance South Africa, trading as
“Legal
Wise” – a legal insurance company.
[3]
The First Respondent is K Kleinot the CCMA Commissioner whose
arbitration
award forms the subject of the review application argued
before me.
[4]
The Second Respondent is the CCMA.
[5]
The Third Respondent is Ms. Shezi, the injured employee, represented
by
the trade union BIFAWU.
Factual
background
[6]
Ms Shezi was employed by the Applicant as a filing clerk. She
struggled
carrying files and boxes (some weighing up to 13 kgs) up
and down three flights of stairs between her office and the store
room.
She experienced back pain.
[7]
On 17 January 2014 Ms Shezi fell off a chair at work and was injured
(the
chair collapsed). She was taken to Flora Clinic, where X rays
were taken and she was diagnosed with “lumbar spine strain and
muscle spasm”. The fall aggravate a pre-existing injury called
“lumbar facet joint syndrome’.
[8]
She returned to work in March 2014, and was given more sedentary
tasks
such as faxing documents. The Applicant assisted Ms Shezi to
apply for a temporary disability benefit from Momentum, the
Applicant’s
insurer.
[9]
In May 2014 an occupational therapist, Ms Whitlock, assessed Ms
Shezi’s
functioning at work and concluded, “…
Her
functional ability lies in sedentary to light work physical demand
range. Hence on account of the step climbing, lifting and
carrying
demands, Mrs Shezi does not have the functional ability to perform
her own job as a filing clerk at the Legalwise hub.
The correct
decision was made when she was given alternative duties from March
2014.”
Ms Whitlock noted that Ms Shezi continued to
struggle with pain management. The occupational therapist
recommended a reduction
in working hours to 6 hours per day on three
days per week, exercise, visiting a chiropractor and biokineticist
and significant
weight loss.
[10]
In July, Momentum approved the disability claim. Ms Shezi was
informed of the need to file
further medical reports to sustain the
disability benefit.
[11]
The payment of the claim (75% of salary) was discontinued in
November, regrettably because
Ms Shezi did not submit a medical
report updating the insurer on her condition.
[12]
On 9 February 2015 Ms Shezi returned to work. She did not have a
doctor’s certificate
that she was fit to resume her duties. Ms
Shezi had been away from work of just over 1 year.
[13]
The employer sent her for a second occupational therapist assessment.
The second report
showed insignificant change in the condition and
medical status of the employee.
[14]
On 25 March 2015, Mr Grobler from Labour Net facilitated an
incapacity enquiry as per paragraphs
10 and 11 of the LRA’s
Code of Good Practice: Dismissal. Mr Grobler considered whether or
not Ms Shezi was capable of performing
her work, and if not, the
extent to which the work could be accommodated. He also considered
whether alternative work was available.
[15]
His enquiry revealed that Ms Shezi could no longer perform her filing
duties, and there
had been little improvement in Ms Shezi’s
condition. The Applicant needed a filing clerk for 8 hrs a day but Ms
Shezi could
only work 2 – 3 hours a day. The Applicant offered
her an alternative position, as a receptionist in Witbank but the
distance
was too far.
[16]
On 10 April 2015 the Applicant terminated Ms Shezi’s
employment. Ms Shezi then referred
an unfair dismissal dispute to the
CCMA.
[17]
At the arbitration, Ms Shezi, and her representative Mr Nhlapo gave
evidence that the Applicant
had reported the injury to the
Compensation Commissioner late. The pre-existing injury related to
her hip and not her back. They
argued that she was discriminated
against because she had a grade 11 certificate and not a matric. The
Applicant’s had failed
to reasonably accommodate Ms Shezi, and
this was discriminatory.
[18]
The employer testified that Ms Shezi could not cope with the demands
of her position after
the fall. She was required to carry boxes, walk
up flights of stairs, and bend over and pick up files. The Applicant
employed an
additional person to carry out these tasks. The Applicant
placed Ms Shezi on light duty which included faxing documents, and
reduced
her hours of work, but ultimately the employer was in a
position where it was paying two wages for one position and that was
economically
untenable.
[19]
The employer could not reasonably accommodate her, and the
alternative position in Witbank
was simply too far to be considered.
The
Arbitration Award
[20]
The
arbitrator expressed the view that the Code Of Good Practice obliges
the employer to adapt and assist an employee who has sustained
an
injury on duty and adapt the work if possible.
[1]
The arbitrator submitted that the Applicant should have assisted the
Third Respondent by assisting her see a dietician, a bio-kineticist
and support her losing weight. The employer should have bought her a
new chair.
[21]
The arbitrator found that there was no categorical report from a
doctor to conclude that
Ms Shezi was disabled and permanently so. The
employee, the arbitrator held, was not afforded an opportunity to
demonstrate what
she could and could not do.
[22]
The
arbitrator found that the incapacity hearing procedure was fair, and
that she was not discriminated against in terms of the
Employment
Equity Act.
[2]
[23]
The arbitrator found that the dismissal was substantively unfair, in
the way the employer
had handled the injury on duty, and because the
employer did no support Ms Shezi in her recovery. There was no
medical evidence,
so the arbitrator found, that Ms Shezi was
incapable of performing her job.
[24]
The arbitrator awarded backpay of R117 186,85 (9 months pay) and
reinstatement to
1 March 2016.
[25]
The award was handed down on or about 10 February 2016.
The
review application
[26]
In general, the employer submits that the arbitrator: failed to apply
her mind to the evidence
before her; exceeded her powers; and failed
to justifiably and reasonably determine and assess the dispute
fairly.
[27]
The Applicant advanced the following grounds of review:
27.1.
The
arbitrator’s view that the employer should have taken steps to
implement recommendations for the well-being of the employee
(including weight loss, managing pain medication and consulting a
bio-kineticist) was irregular and unreasonable.
[3]
27.2.
The
arbitrator erred by finding that the employer should have bought the
employee a chair with lumbar support,
[4]
27.3.
The
arbitrator found that there was no “categorical report from a
doctor showing that the employee was disabled” and
the
arbitrator erred in light of the facts which pointed to the employees
continued disability.
[5]
27.4.
The arbitrator found that the employer failed to discharge the onus
of proving that the employee was incapable
of performing her duties.
This according to the applicants is at odds with the law of onus, as
well as the surrounding factual
circumstances.
27.5.
The
arbitrator committed a material misdirection by on the one hand
chastising the employer for not assisting the employee implement
various medical remedial steps; an on the other hand the arbitrator
finds there was a lack of compelling evidence that the employee
was
incapacitated and incapable of performing her duties.
[6]
27.6.
The
arbitrator found that it was possible to further adapt the workplace.
This was according to the employer unreasonable and at
odds with the
evidence presented.
[7]
27.7.
The
arbitrator acted unreasonably and exceeded her powers by ordering the
relief of reinstatement and backpay of 9 months.
[8]
The nature of review
proceedings
[28]
The Labour Court may set aside an
arbitration award if the arbitrator has committed a defect in the
arbitration proceedings. Section
145 (2) of the LRA sets out the
types of defects warranting intervention: the arbitrator committed
misconduct in relation to his
or her duties; the commissioner
committed a gross irregularity in the conduct of the proceedings; the
commissioner exceeded his
or her powers, or the award was improperly
obtained.
[29]
Our courts have considered these
provisions, and the above statutory tests have been interpreted to
mean that the court may intervene:
29.1.
if
the award falls outside of the spectrum of reasonableness as per the
Constitutional Court’s decision in
Sidumo
[9]
;
29.2.
If
a litigant can stablish an irregularity which is material to the
outcome of the matter (as discussed in
Gordon
v JP Morgan Equities SA (Pty) Ltd & others
)
[10]
.
[30]
The Labour Court must establish two issues:
30.1.
The first is whether the applicant has
established an irregularity. This irregularity could be a material
error of fact or law,
the failure to apply one’s mind to
relevant evidence, misconceiving the nature of the enquiry, or
assessing factual disputes
in an arbitrary fashion.
30.2.
The
second is whether the applicant has established that the irregularity
is material to the outcome of the award - by demonstrating
that the
outcome would have been different had the arbitrator properly and
reasonably assessed the facts in relation to the relevant
law.
[11]
[31]
These grounds for review may overlap and
intersect and are not necessarily discreet.
The
Code of Good Practice:
Incapacity: Ill health or injury
(“The Code”) and case law
[32]
It is trite that the Code establishes the relevant guidelines and
principles when determining
whether a dismissal for incapacity is
fair.
[33]
The relevant provisions, applicable to the case under review in items
10 and 11 of the
Code are the following:
10 (1)
Incapacity on
the grounds of ill health or injury may be temporary or permanent. In
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) …
(3)
The degree of
incapacity is relevant to the fairness of any dismissal
.
(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 these
circumstances.
11 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; and
(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.
[34]
Molomela
AJA in the Labour Appeal Court in
IMATU
obo Strydom v Witzenberg Municipality
[12]
comments
My
reading of items 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
.”
[13]
[35]
In
Standard
Bank of South Africa v Commission for Conciliation, Mediation and
Arbitration
[14]
quoted in
Parmalat
SA (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration
[15]
the Labour Court, having considered items 10 and 11 summed up the
steps as follows:
35.1.
Is the employee able to do his or her work?
35.2.
To what extent is the employee able to perform his or her duties?
35.3.
Is it feasible to adapt the employee’s work circumstances so he
or she can continue to perform his
or her duties?
35.4.
If no adaption is suitable, has the employer enquired about whether
or not there is any other suitable work?
[36]
In
Paraxel
International (Pty) Ltd v Chakane
[16]
the Labour Court held that the onus of proving the incapacity in
order to justify the dismissal rests with the employer.
Discussion
and Analysis
[37]
Mr Grobler asked the right questions in light of the Code and the
Imatu
and
Standard Bank
cases, when he conducted the
incapacity enquiry and weighed up the evidence.
37.1.
Is the employee able to do her work?
37.1.1.
He ascertained that Ms Shezi was not able to fully perform her duties
as a filing clerk in
the work environment.
37.1.2.
The employer had given her lighter duties and taken on another
employee, but in the end could
not justify keeping her in employment
37.2.
To what extent is the employee able to perform his or her duties?
37.2.1.
Ms Shezi could perform at around 30% of the capacity required.
37.3.
Is it feasible to adapt the employee’s work context?
37.3.1.
The employer initially gave Ms Shezi lighter duties such as faxing,
and employed an additional
person for the filing, but that was
uneconomical (2 employees for 1 job).
37.3.2.
Adapting the work environment was not feasible.
37.4.
If no adaption is suitable, has the employer enquired about whether
or not there is any other suitable work?
37.4.1.
An alternative position was available in Witbank as a receptionist
but was too far away for
Ms Shezi
37.4.2.
An alternative was considered but found to be unsuitable.
[38]
Noting that Ms Shezi could not continue in her previous position, and
bearing in mind that
there were no other suitable alternatives, the
arbitrator should have found that the dismissal was fair.
[39]
With respect to the grounds raised in review, we agree with the
Applicant that the arbitrator
did not properly apply her mind to the
evidence which gave rise to an unreasonable result.
39.1.
Ms Shezi had been off work for 10 months. Her physical functioning as
indicated by the Occupational Therapists
reports did not indicate
that her condition had improved or that she had made the necessary
life style changes.
39.2.
The arbitrator materially erred when she found that the employer
should have taken positive steps to ensure
that the employee loses
weight, sees a biokineticist and adapts her pain medication. There is
no onus on an employer to do so,
and would cast an unreasonable
burden on an employer in such circumstances.
39.3.
The
arbitrator erred by finding that the employer should have bought the
employee a chair with lumbar support. Such a chair would
not have
assisted the employee with her job which entailed walking up and down
stairs, bending over and carrying files.
[17]
39.4.
The arbitrator found that there was no “categorical report from
a doctor showing that the employee
was disabled”. Again the
arbitrator misconstrues the evidence – two Occupational
therapists pointed to the need for
reduced physical activities –
in essence indicating that Ms Shezi did not have the physical
strength and health to continue
in her position as a filing clerk.
39.5.
Whilst the employer bears the onus to show on a balance of
probability that the employee is incapable of
performing her duties
as contemplated in the
Paraxel
case, the onus does not
extend to a criminal test of proving beyond reasonable doubt that the
employee is incapacitated.
That appears to be the degree of
proof required by the arbitrator. In this respect she was
misconceived.
[40]
I agree
with the Applicant that the arbitrator committed a material
misdirection by on the one hand chastising the employer for
not
assisting the employee implement various medical remedial steps; and
on the other hand finding that there was a lack of compelling
evidence that the employee was incapacitated and incapable of
performing her duties. That contradiction surely is an indication
that the arbitrator was not properly applying her mind to the
evidence before her.
[18]
[41]
I am satisfied that the Applicant has established that the arbitrator
committed a reviewable
defect which warrants interference from this
court.
[42]
The arbitrator acted unreasonably by ordering reinstatement, when the
evidence showed that
the employee was incapable of performing her
duties, and the employer was not prepared to accommodate her to work
a shorter day.
In
Exarro Coal t a Grootgeluk Coal Mine v Maduma &
others
(2017) 38 ILJ 2531 (LC) the court held that reinstatement
was not an appropriate remedy for an incapacitated employee to return
to a workplace which exacerbated an employee’s health
vulnerabilities.
[43]
In the circumstances I find that the review application succeeds, as
the arbitrator misdirected
herself by ignoring or giving little
weight to relevant evidence, and failing to apply her mind properly
to the issues before her.
Order
[44]
I make the following order:
44.1.
The review application is upheld
44.2.
The dismissal was fair
44.3.
There is no order as to cost
NORTON
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
Applicant: Mr R Orton, of Snyman Attorneys
For
Third Respondent: Mr Nhlapo, of BIFAWU
[1]
Arbitration award, para 84
[2]
Arbitration award, paragraphs 62 and 63.
[3]
Founding Affidavit, para 7.3.2
[4]
Founding Affidavit, clause 7.3.4
[5]
Founding Affidavit, clause 7.3.5
[6]
Founding Affidavit, clause 7.5
[7]
Founding Affidavit, clause 7.8
[8]
Founding Affidavit, clause 7.9
[9]
Sidumo
& another v Rustenburg Platinum Mines Ltd & another
2008 (2) SA 24 (CC)
[10]
(2018)
39 ILJ 393 (LC)
[11]
The
test has been described in
Shoprite
Checkers v CCMA
(2015) 36 ILJ 2908 (LC) as follows, “
where
a commissioner misdirects himself or herself by ignoring material
facts, the reward will be reviewable if the distorting
effect of the
misdirection was to render the result of the award unreasonable.
”
Para 10
[12]
(2012) 33 ILJ 1081 (LAC)
[13]
At para 6
[14]
(2008) 19 ILJ 1239 (LC)
[15]
(2017) 38 ILJ 2586 (LC)
[16]
(2018) 39 ILJ 644 (LC)
[17]
Founding Affidavit, clause 7.3.4
[18]
Founding Affidavit, clause 7.5