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[2020] ZALCJHB 105
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Adcock Ingram Healthcare Proprietary Limited v Zinyana and Others (JR2733/17) [2020] ZALCJHB 105; (2020) 41 ILJ 2165 (LC) (26 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR2733/17
In the matter
between
:
ADCOCK
INGRAM HEALTHCARE
PROPRIETARY LIMITED
Applicant
and
SOLOMON
ZINYANA
First
Respondent
NATIONAL
BARGAINING COUNCIL FOR THE CHEMICAL INDUSTRY
Second
Respondent
COMMISSIONER
NOMUSA MBHELE N.O.
Third
Respondent
Heard:
27 May 2020
Delivered:
In view of the measures implemented as a result of the Covid-19
outbreak, this judgment was
handed down electronically by circulation
to the parties' representatives by email. The date for hand-down is
deemed to be 26 June
2020.
Summary:
Review application – employee must cooperate with the employer
in order to facilitate incapacity
process – opinion by
employee’s doctor that he is able to perform his duties is
fatal to a claim of incapacity –
employer is not expected to
keep the employee who is patently poor performing for exceedingly
long period.
JUDGMENT
NKUTHA – NKONTWANA,
J
Introduction
[1]
The applicant, Adcock Ingram Healthcare
Proprietary Limited (Adcock), seeks to review and set aside the
arbitration award rendered
by third respondent, Ms Nomusa Mbhele
(Commissioner), under the auspices of the National Bargaining Council
for the Chemical Industry
(NBCCI), under case number GPCHEM264-16/17,
dated 17 November 2017. The arbitration proceedings pertained the
dismissal of the
first respondent, Mr Solomon Zinyana (Mr Zinyana),
and the Commissioner held as follows:
‘
1.
The applicant’s dismissal was substantively unfair and
procedurally fair.
2.
The respondent, Adcock Ingram (Tiger Brands) is directed to reinstate
the applicant, Solomon Zinyana,
on the same terms and conditions of
his employment that were applicable prior to the dismissal. The
reinstatement date is
from 11 December 2017.
3.
The respondent is directed to pay the applicant arrear wages of
R410 000,00 (four hundred
and ten thousand rand) by no later
than 15 December 2017.
4.
The respondent is directed to start a disability process from
11 December 2017.
5.
There is no order as to costs.’
[1]
[2]
The nub of Adcock’s impugn is that
the Commissioner committed gross irregularities and exceeded her
powers. This application
is opposed only by Mr Zinyana.
Pertinent facts
[3]
Facts
in this matter are mostly common cause. Adcock manufactures, markets
and distributes a range of healthcare products within
both the
private and public sectors. It is subject to the Medicines and
Related Substances Act
[2]
(MRSA). The MRSA establishes the Medicines Control Council (MCC),
whose function is to control the registration of medicines, determine
whether medicine is suitable for use for its intended purpose and to
assess the medicines’ relative risk against its benefits.
[4]
Any failure on the part of Adcock to comply
with the requirements of the MRSA, its regulations and the directives
of the MCC could
result in Adcock being prohibited from
manufacturing, marketing and/or distributing medicines. The employees
in the Adcock’s
Regulatory Affairs Department have to
diligently perform their duties.
[5]
Any failure in the execution of duties by
employees in the Adcock’s Regulatory Affairs Department could
directly impact on
Adcock’s abilities to operate in the
pharmaceutical industry; the loss of a manufacturing licence; the
recall of products
(which would result in significant financial
losses); criminal charges or possibly even medical risks to patients.
[6]
Mr Zinyana commenced his employment with
Adcock on 4 July 2005, as a Regulatory Affairs Pharmacist (RA
Pharmacist) in Adcock’s
Regulatory Affairs Department. His
responsibilities in that post, in accordance with the MRSA and its
Regulations, were to:
6.1.
Register new products with the MCC;
6.2.
Maintain and keep product dossiers up to
date. Product dossiers contain,
inter
alia
, the manufacturing method used to
produce a product, the quality of the product and the source of the
ingredients;
6.3.
Resurrect existing/dormant dossiers,
perform a due diligence of the dossier, and ensure a dossier is
compliant with the current
requirements and ready for launch within
the specified timeframes; and
6.4.
Record any regulatory changes in the
product dossier, which must be sent to the MCC for approval.
[7]
In March 2008, Mr Zinyana suffered a stroke
and was hospitalized. He was placed on disability leave for
approximately one year.
In July 2009, Mr Zinyana returned to work and
was provided temporary assistance to execute his normal duties.
[8]
On
29 February 2012, Mr Zinyana’s specialist neurologist, Dr Jody
C Pearl (Dr Pearl), addressed a letter to Adcock stating
that, Mr
Zinyana had made remarkable progress since his stroke in March 2008
and, despite having difficulty finding his words,
he was ‘capable
of full employment in a job with responsibility as long as he does
not need to speak to large number of people
or have to write lengthy
documents’.
[3]
[9]
In
2014, Adcock underwent a restructuring exercise which resulted in Mr
Zinyana’s erstwhile manager’s move from his
department.
In 2015, it became apparent to Adcock that Mr Zinyana could not
perform his functions as a RA Pharmacist. His performance
rating
during the period June 2015 and March 2016 varied between 1 and 2
which was extremely poor.
[4]
[10]
On 3 May 2016, a performance review
meeting was convened with Mr Zinyana, his new manager, Mr Driaan
Botha (Mr Botha) and Human
Resources officials. Mr Zinyana did not
dispute his poor performance and was presented with three options:
firstly, medical boarding;
secondly, mutual termination of
employment; and thirdly, a poor work performance process. Mr Zinyana
elected the medical boarding
option.
[11]
In order to assist him, Adcock arranged a
consultation for him with its doctor, Dr Victor. Dr Victor advised Mr
Zinyana to meet
with his Specialist Neurologist, Dr Pearl. It is not
disputed that Dr Victor made it clear to Mr Zinyana that he would
have to:
11.1.
Provide his job profile to Dr Pearl to
enable her to assess whether he was capable of performing his
Regulatory Affairs Pharmacist
functions; and
11.2.
Seek a medical diagnosis from Dr Pearl.
[12]
Instead of meeting with Dr Pearl as advised
by Dr Victor, Mr Zinyana sent her an email. On 1 June 2016,
Dr Pearl responded
though a letter addressed to Dr Victor stating
that:
‘
Mr
Solomon Zinyana has been under my care since 2008 following a
spontaneous left carotid artery dissection resulting in a left
middle
cerebral artery territory stroke with global aphasia. Mr Zinyana
underwent an intensive rehabilitation and speech therapy
and while he
still remains with finding difficulty and mild expressive dysphasia,
he has no receptive speech difficulties and no
cognitive impairment.
In my opinion he is able to fulfil his duties as a RA pharmacist, he
may however express some difficulties
in expressing himself
fluently.’
[5]
[13]
Mr Zinyana then forwarded Dr Pearl’s
letter to Dr Victor. On 7 June 2016, a meeting was convened with
Mr Zinyana, Mr
Botha and Human Resources officials, following Adcock’
receipt of Dr Pearl’s letter, to discuss the way forward. Mr
Zinyana accepted Dr Pearl’s opinion and confirmed that he could
perform his Regulatory Affairs Pharmacist functions.
[14]
Owing to the poor work performance record,
Mr Zinyana was put on a Performance Improvement Programme (PIP), a
process he agreed
to. Throughout 2015 and 2016 Mr Zinyana was
provided with significant external and internal assistance to improve
his performance.
Over a period of six months, between June 2016 and
December 2016, eight performance improvement sessions were held with
Mr Zinyana,
however he failed to show any improvement during this
period and consequently he was issued initially with a written
warning on
19 July 2016 and ultimately with a final written warning,
neither of which were challenged by him.
[15]
On 25 January 2017, Mr Zinyana was
issued with a notice to attend the poor work performance enquiry
which was scheduled for
31 January 2017. At this enquiry, the
parties were afforded the opportunity to present the evidence. The
chairperson found
Mr Zinyana guilty of poor work performance and
recommended his dismissal. On 8 February 2017, Adcock confirmed
the chairperson’s
recommendation and dismissed Zinyana.
[16]
On 8 March 2017, Mr Zinyana successfully
challenged his dismissal at the NBCCI. The Commissioner found that Mr
Zinyana’s dismissal
was procedurally fair. This point is not
controverted. What is in dispute is whether Mr Zinyana’s
dismissal was, as the Commissioner
found it to be, substantively
unfair. At the core of the inquiry is whether the Commissioner
committed gross irregularities or
exceeded her powers in making the
order that she did in the arbitration award.
Review test
[17]
The
review test is trite. The award must be one that a reasonable
decision-maker could have arrived at in order for it to escape
being
assailed.
[6]
However, that is
not the end of the enquiry. In
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others,
[7]
the Labour Appeal Court (LAC) stated that:
‘
[15]
…the Labour Court’s approach to the review of the
Commissioner's award transcends the
mere identification of process
related errors to reveal the Commissioner’s basic failure to
apply his mind to considerations
that were material to the outcome of
the dispute, resulting in a misconceived hearing or a decision which
no reasonable decision-maker
could reach on all the evidence that was
before him or her.
[16]
Significantly, as was held by the SCA in
Herholdt
and endorsed
recently by this Court
in Head of the Department of Education v
Jonas Mohale Mofokeng and Others
, ‘for a defect in the
conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)(a)(ii) of
the LRA, the arbitrator must have
misconceived the nature of the enquiry or arrived at an unreasonable
result’.
Thus, as recognised in Mofokeng, it is not only the
unreasonableness of the outcome of an arbitrator's award which is
subject to
scrutiny, the arbitrator ‘must not misconceive the
inquiry or undertake the inquiry in a misconceived manner’, as
this
would not lead to a fair trial of the issues
. In further
approval of
Herholdt
, this Court in
Mofokeng
stated
that:
‘
Mere
errors of fact or law may not be enough to vitiate the award.
Something more is required. To repeat: flaws in the reasoning
of the
arbitrator, evidence in the failure to apply the mind, reliance on
irrelevant considerations or the ignoring of material
factors etc.
must be assessed with the purpose of establishing whether the
arbitrator has undertaken the wrong inquiry, undertaken
the inquiry
in the wrong manner or arrived at an unreasonable result.
Lapses
in lawfulness, latent or patent irregularities and instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the
material
that was before him or her
.’
(Emphasis added)
Analysis
[18]
The crux of Mr Zinyana’s case at the
arbitration was that dismissal was not an appropriate sanction due to
his medical condition.
This claim was mooted for the first time at
the arbitration during the opening address by Mr Jack Madzhivhandila
(Mr Madzhivhandila),
Mr Zinyana’s legal representative. It is
clear from the transcript that Mr Madzhivhandila argued that Mr
Zinyana conceded
that his performance was poor and that since this
fact was known to Adcock, he should have been subjected to ill-health
process
as opposed to poor work performance enquiry. This argument
was persisted with during these proceedings. Counsel for Mr Zinyana
submitted that the commissioner was confronted with a long history of
poor work performance. On
3 May 2016,
Mr Zinyana was presented with three options and, by electing the
medical boarding option, he made a clear indication
that he has
medical challenges.
[19]
There are difficulties with Mr Zinyana
assertion that by electing to be medically boarded he was
unequivocally declaring his incapacity
due ill-health.
19.1.
Firstly, he was directed to request a
report to support of his medical boarding application from Dr Pearl,
his own doctor who had
been treating him for eight years. It is not
disputed that he just sent an email to Dr Pearl and the contents of
that email remain
unknown because Mr Zinyana did not testify during
arbitration nor discover that email. I deal with Mr Zinyana’s
failure to
testify later in the judgment; save to mention that Dr
Pearl responded to that email by the letter dated 1 June 2017 wherein
she
expresses her unequivocal opinion that Mr Zinyana is able to
fulfil his duties as a RA pharmacist, he may however ‘express
some difficulties in expressing himself fluently’.
19.2.
Secondly, when Mr Zinyana was confronted
with Dr Pearl’s opinion that he was capable of performing his
duties, he was not
startled or record his disagreement or, better
still, request a second opinion.
19.3.
Thirdly, Mr Zinyana did not reopen the
discussion on the other two options he had been presented. He simply
accepted Dr Pearl’s
opinion and agreed to be subjected to PIP.
Therefore, his argument that Adcock ought to reopen the discussion is
clearly flawed.
19.4.
Lastly, throughout the performance review
discussions, he did not raise the issue of his medical condition as a
reason for his poor
work performance. In fact, even during the final
performance enquiry, he did not raise ill-health as a defence.
[20]
The
evidence before the Commissioner included Dr Pearl’s medical
reports which she had been submitting over the years and
pertinently
the letter dated 1 June 2017. Dr Pearl was called as witness for Mr
Zinyana. Her attempts to talk down the contents
of her letter dated 1
June 2017 were unsuccessful as the following emerged when she was
quizzed:
[8]
‘
MR
VERMAAK: All I am saying is that hypothetically if Solomon
comes to me as his manager, and I offer him cretin alternatives,
and
he says to me: Here is my letter from DR PEARL, which says I am fine,
I am just going to have some speech difficulties, but
I can do my
work then the company should accept that based on your letter. Is
that correct?
DR
PEARL: I
think there are two points to make. SOLLY expressly wanted
to
continue working. From the day he had the stroke, all he wanted to do
was to go to work. I supported that decision. At no point
during this
process was I ever contacted in any lengthy way to find out – I
think accommodation were made, and then suddenly
weren’t made
for him, to be honest. My letter was based on the fact that to my
knowledge he had successfully been doing the
same job that he had
been doing for the past eight years, without a problem. In fact, I
went so far as to reinvestigate him, to
make sure there was no
additional thing that I had missed, in order to say: There was no new
stroke; everything is as was in 2008.
This was all done in a very
innocent sense of saying: Well, Solly, you’re doing your job,
you’ve been doing it for
eight years, you are happy doing your
job, I don’t find any difference in you; in fact your tests
don’t show ant difference
– can do the job. It’s
simple as that.’
[21]
Dr
Pearl was evidently constrained to concede that her letter confirmed
that Mr Zinyana could perform his duties as he had no cognitive
impairment despite the speech difficulties. In fact, it was not the
first time that Dr Pearl expressed this opinion. In a letter
dated 29
February 2012, Dr Pearl expressed the same opinion in validation of
Mr Zinyana’s full time employment.
[9]
[22]
Nothing much turns on whether Dr Pearl was
aware of the changes in terms of the scope of Mr Zinyana’s
duties. It was Mr Zinyana
who requested to be medically boarded and,
as such, he had a responsibility to ensure that his Doctor is fully
apprised on all
relevant facts in relation to the conditions of his
employment and the reason why he opted to be boarded.
[23]
I do not wish to toy with the idea that Dr
Pearl could have lied about Mr Zinyana’s medical condition. My
view, is that either
Mr Zinyana was able to perform his duties or he
was incapacitated and this fact was concealed from Adcock. If indeed
he could not
perform his duties due to ill-health, he was supposed to
be upfront with Adcock. There is no reason why Adcock should have
doubted
Dr Pearl’s opinion that Mr Zinyana was able to perform
his duties.
[24]
In
Parexel
International (Pty) Ltd v Chakane N.O and Others,
[10]
referred to by counsel for Adcock, the LAC overturned the finding of
this Court in a case of a dismissal due to incapacity. The
respondent
employee had been absent from work for more than nine months. The
respondent employee failed to provide the appellant
employer with
medical reports on her prognosis for her recovery. The LAC found that
since there ‘
was
no dispute that the employee’s position had already been
kept open for her for more than nine months. Given these
facts, the
appellant’s failure to consider alternatives short of
dismissal was not unfair’.
[25]
In
the present case, Dr Pearl conceded that Mr Zinyana had been
accommodated for eight years since his stroke. The process of medical
boarding was halted by Dr Pearl’s letter that declared him
capable of performing his duties. It is telling that Mr Zinyana
did
not cry foul when he was subjected to PIP, issued with a final
written warning for poor work performance and lastly summoned
to a
poor work performance inquiry. As stated in
Parexel,
[11]
it would be unduly onerous to expect the employer to put up with an
employee who is either not performing in accordance with agreed
key
performance standards or incapacitated, for whatever reason, for an
exceedingly long period without a lasting solution.
[12]
[26]
There
is no merit in the submission by Mr Zinyana’s counsel that the
dictum
in
Parexel
[13]
is distinguishable because Mr Zinyana was not given a clear
instruction as to what was expected of him after he elected to being
medically bordered. Adcock’s evidence that Dr Victor
advised
Mr Zinyana to provide Dr Pearl with his job profile to enable her to
assess whether he was capable of performing the functions
of a RA
Pharmacist was no disputed.
[27]
Mr
Zinyana chose not to testify during the arbitration proceedings and
the reason recorded in the award is that
‘
Mr
Madzivhandila submitted that the applicant would not be testifying
because in terms of the evidence, the parties did not seem
to be in
disagreement. [Mr Zinyana] would not contradict everything that had
been said should he testify’.
[14]
[28]
Dr
Pearl’s concession that Mr Zinyana had no cognitive impairment
and was in a position to perform his duties, as per the
letter dated
1 June 2017, was fatal to Mr Zinyana’s claim of incapacity due
of ill-health. Therefore, the Commissioner’s
finding that,
since ‘it was not the case of Adcock that
prior
to 2008 Mr Zinyana’s work performance was poor, it is more
probable that his poor work performance was linked to other
factors,
such as medical reasons, that he had no control over’ is
untenable as it is
purely
conjectural
.
[15]
[29]
On this ground alone, the arbitration award
stands to be reviewed as set aside. I deem it unnecessary to deal
with other issues
that arose in this matter as this ground is
determinative of the dispute before me.
Conclusion
[30]
The Commissioner clearly misconceived the
nature of the enquiry and, consequently, arrived at a decision
which no reasonable decision-maker could reach on
all the material that was before her.
As
such, the award is vitiated by this irregularity.
[31]
In the interest of justice, I deem it
expedient not to remit this matter back to the Commission for
Conciliation, Mediation and
Arbitration (CCMA). The issues were
properly ventilated during the arbitration proceedings and the
adequacy of the record of those
proceedings is not placed in issue. I
am, accordingly, in a position to determine the matter to its
finality.
[32]
In the light of the findings that I have
arrived at above, it is clear that the dismissal of Mr Zinyana is
substantively fair.
Costs
[33]
It is trite that costs do not follow the
result in this Court. I am not persuaded that Mr Zinyana should be
saddled with costs as
it would offend the principle of fairness and
equity to do so.
[34]
In the premises, I make the following
order:
Order
1.
The arbitration dated 17 November 2017
issued under case number GPCHEM264-16/17 is reviewed and set aside
and substituted with the
following order:
1.1
The dismissal of Mr Solomon Zinyana is
substantively fair.
2.
There is order as to costs.
__________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicants:
Advocate Fourie SC
Instructed
by:
Werksmans Attorneys
For the
Respondent:
Advocate A Saloojee
Instructed
by:
RS Madzivhandila Attorneys
[1]
See:
Arbitration Award at
pages 41-42.
[2]
Act
101 of 1965.
[3]
See:
Founding Affidavit, annexure “NM2” at page 43.
[4]
Based
on a rating system of between 1 – 5, 1 being poor and 5 being
good.
[5]
See:
Transcribed
Record
at page 34.
[6]
See:
Sidumo
v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para 110; see also
[2007]
12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC); See also
Head
of the Department of Education v Mofokeng
[2015]
1 BLLR 50
(LAC);
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074 (SCA).
[7]
[2015]
5 BLLR 484
(LAC); (2015) 36 ILJ 1511 (LAC) at paras 15 to 16.
[8]
See:
Transcribed Record at pages
398
- 399, lines 24-13.
[9]
See:
Transcribed Record at page 141.
[10]
(2019)
40 ILJ 2344 (LAC); [2019] 11 BLLR 1245 (LAC).
[11]
Id
n 10.
[12]
See:
Kievits
Kroon Country Estate (Pty) Ltd v Mmoledi and Others
(2014)
35 ILJ 406 (SCA) at para 31.
[13]
Ibid.
[14]
See:
Arbitration Award annexure “NM1”, Founding Affidavit at
page 34, para 9.
[15]
Ibid
page 41,
para 45; see also:
Independent
Municipal and Allied Trade Union obo Strydom
[2012]
ZALCCT 56 at para 27,