THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not reportable
Case No : JR1 532/21
In the matter between:
HUMBULANI RICHARD SANDANI Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION (“CCMA”) First Respondent
COMMISSIONER SUZANNE RAESET JA MOTHAPO Second Respondent
WESTERN CHROME MINES Third Respondent
Heard: 27 August 2024
Delivered: 3 February 2025
JUDGMENT
ADAMS, AJ
introduction
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[1] This is a review application in terms of section 145 and/or section 158(1)(g) of
the Labour Relations Act1 (the LRA) wherein the Applicant seeks to review
and set aside the Arbitration Award issued on 21 June 2021 under case
number NWRB2067/20.
[2] In terms of the said award, the Second Respondent (the Commissioner )
found the dismissal of the Applicant to be both procedurally and substantively
fair and accordingly dismissed the Applicant’s claim.
[3] In terms of the Arbitration, the simple nub of the dispute that had to be
determined by the Commissioner was whether the dismissal of the Applicant
for incapacity: ill health or injury, was procedurally and substantively fair.
Synopsis of the case in terms of the transcript of proceedings
[4] The Applicant was employed by the Third Respondent as a Mineral Resource
Specialist: Geology on 22 February 2017. The Applicant’s employment was
terminated on 6 July 2020 for reasons related to incapacity – ill health.
[5] The Applicant was paid a medical separation package of R174 652.85 and a
lump sum from RMA to the amount of R63 972.67. At the time of the
Applicant’s dismissal, the Applicant was earning R56 182.28 per month.
[6] The common cause facts, as can be seen from the transcript of proceedings,
were as follows:
6.1. the Applicant sustained an injury whilst on duty on 11 October 2017;
6.2. the Applicant returned to work with restrictions on 6 March 2018;
6.3. the Applicant returned to work, however, he could only work for one
week in the position given to him by the Third Respondent;
6.4. the Applicant was then categorized permanently unfit on
29 January 2019;
1 Act 66 of 1995, as amended.
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6.5. since the date of his injury being 11 October 2017 to 6 July 2020, the
Applicant received his full salary and benefits even though he could not
work;
6.6. on 10 January 2020 , Rand Mutual Insurance compensated the
Applicant in the amount of R63 972.67;
6.7. on 25 July 2020 , the Third Respondent paid the Applicant an amount of
R174 652.84 after tax as a medical separation package ;
6.8. two letters were sent by the General Manager to the Applicant in terms
of finalisation of the incapacity case.
The applicant’s case at the arbitration proceedings
[7] The Applicant contended during the arbitration proceedings that he was not
afforded a fair procedure in terms of the medical procedure prescribed by the
Third Respondent’s Disability Management Agreement and that his
termination was irregular in terms of the Agreement.
[8] Much of the Applicant’s evidence during the arbitration proceedings was
based on the fact that the Third Respondent had allegedly failed to comply
with the Disability Management Agreement. To this end, the Applicant testified
that he had only had sight of the policy at the arbitration.
[9] The Applicant further contended in the proceedings that the Third
Respondent, through the medical practitioner, did not offer him or consider the
medical opinion of the treating specialist.
[10] The Applicant had been seen to by a number of specialists since his injury,
including, inter alia :
10.1. Miss Colleen Kgatshe – EWP therapist (Careways);
10.2. Dr P Bezhuidenhout – Neurosurgeon;
10.3. Dr L Ledimo – Orthopaedic Surgeon;
10.4. Miss L Pieterse – Occupational Therapist;
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10.5. Dr L Mashayanombe – Psychiatrist;
10.6. Dr M Maku – Spine Orthopaedic Surgeon;
10.7. Miss J Seabela – Occupational Therapist;
10.8. A Taylor – Physiotherapist;
10.9. M De Bruin – Physiotherapist.
[11] When the Respondent was certified medically unfit for work, he submitted that
the medical certificate was issued without the involvement of his line
supervisor or the manager of the Department.
[12] He further testified during the arbitration proceedings that the Third
Respondent had failed to offer him reasonable accommodation and sort
guidelines in terms of his surface work and responsibilities as per his job
profile.
[13] On 18 March 2018, the Applicant wrote to the Geology Supervisor, Van
Staden, that he was experiencing complication and discomfort due to field
work exposure.
[14] On 27 March 2018 , a meeting was held between himself, the Geology
Supervisor and the occupational medical doctor. The occupational medical
doctor issued a notification to the Applicant’s Supervisor for further medical
referral and rehabilitation intervention. Subsequently, the Applicant remained
home with continuous medical treatment. The Applicant did not return to work
thereafter.
[15] Between the period early 2017 to June 2020, several medical processes were
recommended by the various experts and continuously submitted to the
Respondent.
[16] On 13 November 2018 , the Occupational Therapist wrote a report indicating
that the Applicant’s rehabilitation programme had been terminated and that
the Orthopaedic Surgeon w ould be conducting an infiltration proce ss during
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the month of December 2018. Recommendations were made for
Occupational Therapy sessions if needed.
[17] On 29 January 2019 , the Applicant was served with his disability notification .
Importantly, this notification was accepted by him and signed for by him.
[18] Fifteen days after the Applicant was served with the disability notification, he
attended a follow -up routine consultation with the Orthopaedic Surgeon,
Dr Maku, for feedback.
[19] The Applicant contends that he attempted to appeal the decision and referred
to the Disability Management Agreement policy and procedure set out therein.
He testified that he had complied with clause 4.2 but that the Respondent had
failed to refer his issue to the medical tribunal or to address his concerns.
[20] After having received the disability notification, the Respondent refused to
sign and submit the necessary forms to the Respondent for submission to his
insurer.
[21] The Applicant, during his testimony, testified that the disability notification was
null and void because as per the DN R procedure, the Respondent had made
provision for injured employees to appeal the process.
[22] The Applicant testified that he had suffered severe prejudice and damages as
a result of the conduct of the Respondent. If the Respondent had in good faith
referred him to all of the medical specialist and considered their inputs, and
conducted the categorisation process according to internal company
procedures and policy, his medical incapacity would be procedural and
finalisation of his medical incapacity would have been substantively fair.
Third respondent’s case
[23] The Applicant was employed by the Third Respondent as the Mineral
Resources Geology Specialist on 21 February 2017.On 11 October 2017, the
Applicant was injured whilst working underground in a fall of ground incident
(the incident ) where he sustained back injuries.
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[24] Following the incident, the Applicant consulted with the Third Respondent’s
occupational medical doctor, Dr Mmakhuto , who referred the Applicant to
Ferncrest Hospital for medical examination.
[25] The Applicant returned to Dr Mmakhuto on 12 October 2017 for review and
advised that he had been diagnosed with a soft tissue injury.
[26] Dr Mmakhuto was not happy with the diagnosis and proceeded to refer the
Applicant to a Specialist Neurosurgeon, Dr Bezuidenhout, who diagnosed the
Applicant with a compression of vertebral bones from T4 to T6 (severe injuries
to the spine).
[27] Dr Bezuidenhout indicated that the Applicant’s condition was stable, and he
could return to work on 17 December 2017.
[28] The Applicant advised that he was still in pain and required further
investigation into his condition. Accordingly, Dr Bezuidenhout referred the
Applicant to an Orthopaedic Surgeon, Dr Ledimo.
[29] Dr Ledimo recommended conservative management, which included
Rhizotomy, infiltration of the spine and stated that the Applicant’s condition
would have to be managed conservatively through Centimetric treatment.
[30] Dr Mmakhuto convened a meeting with the Applicant and his line manager to
discuss how the Applicant could be reasonably accommodated.
[31] On 3 March 2018, Dr Mmakhuto issued the Applicant with a fitness certificate
indicating that he was fit to perform his duties on the condition that he did not
do underground work for six months.
[32] The Applicant was further excluded from duties that expect him to crouch,
reach and/or do anything that could inflict pressure on his spine.
[33] Two days after returning to work, and limited strictly to the surface, the
Applicant advised Dr Mmakhuto that he was not managing as he could not sit
for prolonged periods of longer than thirty minutes.
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[34] Subsequently, Dr Mmakhuto convened a further meeting with the Applicant
and line manager to communicate that the Applicant could not sit for
prolonged periods and had requested withdrawal of reasonable
accommodation.
[35] Dr Mmakhuto withdrew the Applicant from surface, and the Applicant was
booked off sick and scheduled to continue with rehabilitation with the
Occupational Therapist.
[36] On 29 January 2019, Dr Mmakhuto did a categorization of the Applicant to be
medically boarded as he was found to be permanentl y disabled. The meeting
was attended by Dr Mmakhuto , the Applicant and his trade union
representative, the Applicants line manager and the Human Resources
representative.
[37] The Applicant signed the disability notification where he was declared unfit to
work underground or on surface and was accordingly categorised as E (which
category means that he is not fit to work in the mining environment or other
environments out of the mine).
[38] On or about 18 February 2019, Dr Ledimo referred the Applicant to a Spine
Orthopaedic Surgeon, Dr Maku, for an opinion. Dr Maku also recommended
conservative management which is analgesia and physio.
[39] Dr Mmakhuto subsequently referred the Applicant for counselling to be treated
for possible post -traumatic stress to deal with the impact of his diagnosis on
his mental health.
[40] The Applicant’s injuries were reported to Rand Mutual Assurance ( RMA ), an
insurance company accredited by the Department of Labour to function in
terms of the Compensation for Occupational Injuries and Diseases Act2
(COIDA ) which covers all medical costs for occupational injuries that take
place in the mine.
2 No. 30 of 1993.
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[41] On assessment of the Applicant’s injuries, RMA allocated a permanent
disability number of 6% to his case. A permanent disability number of less
than 30% means that the Applicant would be paid a once off lump sum, not
monthly payments. A permanent disability number of over 30% would mean
that the Applicant would be paid a monthly income of approximately 75% of
his salary at the time of the injury up until the time that he reaches the age of
63.
[42] To assist the Applicant, Dr Mmakhuto drafted a letter for the Applicant to
appeal the 6% permanent disability number because the assessment had
been only considering the fractures, and not the Applicant’s mental wellbeing
because RMA had been advised prior to the Applicant being referred to a
psychiatrist.
[43] The RMA appeal was successful, the Applicant received a total estimated
permanent disability of 50% which would be granted when the psychiatrist
finalised the Applicant’s diagnosis. This meant that the Applicant would
become legible to receive a monthly stipend of approximately 75% of his
salary up until the age of 63.
[44] In October 2019, the Third Respondent submitted medical boarding
documents to its insurer, Sanlam, for the Applicant to be medically boarded as
he was not fit to continue working and his condition had not improved in over
two years and six months. However, the Applicant refused to sign and submit
his employee declaration documents as required by Sanlam.
[45] The Applicant’s employment was terminated on 6 July 2020 for reasons
related to incapacity – ill health.
[46] The Applicant was paid a medical separation package of R174 652.85 and a
lump sum from RMA to the amount of R63 972.67.
The arbitrator’s findings
[47] In the arbitration award, the Arbitrator recorded that the issue to be decided
was whether or not the dismissal of the Applicant based on incapacity was
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procedurally and substantively fair and if his dismissal was found to be unfair,
whether he should be reinstated.
[48] The Commissioner found that:
“100. I would like to revert back to the guidelines. Was the employee
capable of performing the work. After the injury, the employee had
never been capable of performing his work. Hence, he was referred to
different specialists for treatment, rehabilitation, counselling and
psychiatrist evaluation, which included his wife. The extent to which
the employer is able to perform the work. The Applicant would totally
not have been able to perform the work. He received full salary for a
period of two years, nine months without making any efforts to return
to work. His medical expenses were covered by RMA, and in addition,
the Respondent was giving him petty cash to cover some shortfalls on
his medical bills.The extent to which the employee’s work
circumstances might be adapted to accommodate disability, or, where
this is not possib le, the extent to which the employee’s duties might be
adapte d. The Applicant was certified fit to work, with restriction in
March 2018. This resulted in the OMP affording him six months of on
surface duties. In less than a week, the Applicant could not perform
the work that he was accommodated in. He complained of inability to
sit for prolonged periods, to be specific, for more than thirty minutes,
ad driving on uneven roads. This statement was corroborated by the
Occupational Therapy report. As the Applic ant, was employed as a
Mineral Resources Geologist Specialist, to work underground and on
surface, which was a professional work with needed adequate skills,
accompanied by the necessary qualifications to perform. Placing him
on surface work only was the adaption and reasonable
accommodation. The availability of any suitable alternative work . It
was common cause that the Respondent had to undergo a
Section 189A where approximately 1 800 employees had to be given
severance packages.
102. The Applicant could not perform the adapted function, for reasons like
driving a vehicle for more than thirty minutes or on uneven road
standing and walking. Further, in the arbitration process the Applicant
10
could not sit for more than two hours without requesting for a leg
stretch break. At some point he would request to continue with the
process standing. With the calibre of his duties, if he could not sit or
drive for a prolonged period, I could safely believe that the possibility
of alternative work was zero.
Procedural fairness
103 Under the procedure t he Applicant contested that he was not afforded
a fair procedure in terms of the medical procedure prescribed by the
Respondent’s Disability Management Agreement. He contested that
his termination was irregular in terms of the same agreement. The
Applicant was adamant to us e quotes from an outdated agreement of
11 November 1997 despite the Respondent arguing that the outdated
agreement was replaced in 2013, which caters for medical claims to
be paid by RMA. There was no dispute that RMA paid him a lump sum
and catered for his medical bills in conjunction with the Respondent. I
believe that the Applicant deliberately ignored the amended
agreement as the outdated one favoured his plans to hold
Respondent accountable for his refusal to accept, reasonable
accommodation. I struggle to understand why the Applicant would
accept separation package, thirty -three months salary and contest that
proper procedure was not followed. The Applicant could not produce
any evidence of his appeal to Human Resources Practitioner, instead
he referred to an email.
a The Mine Health and Safety Act 29 of 1996 and regulation
stipulates in Section 20(2) that:
“An appeal under sub -section (1) must
(a) be lodged with the medical inspector within 30 days of the relevant
decision or finding, or such further period as may be prescribed; and
(b) state the grounds of the appeal. The Applicant failed to follow the law,
which was above any internal processes of the Respondent, as they
are guidelines only. Notwithstanding that he preferred to follow an
outdated process, the Act is very clear, that no one had an option to
do anything else, but must appeal to DMR.
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104. I believe he was aware that he had nothing to appeal as the
Respondents had tried all available avenues to accommodate and
paid him for prolonged period, but the Applicant failed to co -operate. I
believe he deliberately frustrated the Respondent’s processes as
alleged, for his financial gain. Lerato testified that the Applicant did not
need the incident/accident report to complete Sanlam forms, and he
was informed about this and remained defiant. The Applicant
strategized to frustrate any attempt to he lp him because he was
comfortable to receive a huge salary without working. As a result, I
find that the Respondent followed a fair procedure, accompanied by a
fair remuneration to dismiss the Applicant due to disability.
Substantive fairness
105. The Applicant, for a considerable period, focused on the
incident/accident investigation and report submitted to DMR. I believe
that this was irrelevant to the current matter as it was not in dispute
that the Applicant was seriously injured and was categorised by OMP.
His categorisation was justified by his inability to perform in an
accommodated position. There were contradictions in the Applicant’s
testimony, in that he initially submitted that the OMP had given him
reasonable accommodation without c onsulting his line manager, later
he said he was only informed by the OMP, after he (OMP) discussed it
with Greta Van Staden, who was his line manager. The Applicant
nevertheless, could not dispute the clarification by OMP that it could
not have decided on the alternative job for the Applicant without
consulting and getting approval from his line manager.
106. This contention made sense a s the protocol had to be followed. In
Kievits Kroon Country Estate (Pty) Limited v Mmoledi and Others
(2014) 35 ILJ 406 (SCA) - it has been recognised by our Courts “that
employer is not expected to tolerate an employee’s prolonged
absence from work for incapacity due to ill health. And it may, if it be
fair in the circumstances, exercise an election to end the employment
relationship”. The Applicant confirmed that his services were only
terminated a year and six months afte r he was initially categorised as
permanently disabled. I find this time considerably long for any
procedure and plausible reason to have him floored. It was further
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common cause that he was paid for two years nine months after his
injury.
107. In Parexel International (Pty) Limited v Chakane and Others [2019] 11
BLLR 1245 (LAC), the Court held that: “It is self -evident that whether
an employee is willing and able to work and when he or she may be in
a position to do so are material considerations to which regard must
be had when considering an employee’s incapacity, whether she has
been absent from work for an unreasonably long period of time and
whether alternatives to dismiss exist.” The Applicant was never able to
work. He could not cope with alternative work provided. It was almost
four years since the Applicant was injured. Even after that prolonged
period, the Applicant could still not sit for more than two hours, he
requested on several occasions, time for leg stretch. He further
requested to participate in the process standing. The Applicant had
never attempted to return back to work in two years nine months that
he was paid. These are all evident that the Applicant would not be
able to work.
108. I believe that the Applicant deliberately attempted to stall the
finalisation of his medical boarding process as he continued to raise
frivolous points of contention, such as bonus, incident investigation
reports, which if he wanted to get, were available at DMRE. I also
believe that the Applicant refused to sign the Sanlam form in order to
frustrate the process, as he was still benefitting by receiving a full
salary, accompanied by benefits. Therefore, I find the dismissal of the
Applicant substantive ly fair. The Respondent followed all of the
requirements and guidelines of the Code of Good Practice. ”
[49] In the Applicant’s Application, the Applicant has effectively raised six grounds
for review:
49.1. the Applicant has contended that the Commissioner gave the Third
Respondent’s version preference and that she had failed to take into
account the Applicant’s version when rendering the award;
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49.2. the Commissioner failed to take into account the fact that the Applicant
could not rely on the new policy if he was not even aware that same
existed;
49.3. in terms of the Disability Management Agreement, the Applicant had
the right to have his case referred to a medical tribunal. The Third
Respondent failed to refer his matter to a medical tribunal and this fact
was not considered by the Commissioner when rendering her award;
49.4. the Commissioner failed to consider the fact that the Applicant’s
categorisation was done prior to him being referred to a psychiatrist
and therefore Dr Mmakhuto did not consider all medical and
rehabilitation opinions of all treating medical specialists prior to issuing
the disability notification (categorisation) as a psychiatrist’s opinion was
not available at that time . Further, Dr Mmakhuto confirmed that he only
referred the Applicant to a Urologist after his categorisation. The
Applicant’s line manage r was not present during the meeting to discuss
his work accommodation and this was evident from the minutes of the
meeting held on 27 March 2018. According to the Applicant this
rendered the process flawed, however, this was ignored by the
Commissioner ;
49.5. the Commissioner erred in deciding that the dismissal was procedurally
and substantively fair as the Third Respondent failed to discharge its
onus in this regard.
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[50] I am required to deal with the grounds for review within the context of the test
this Court must apply in deciding whether the arbitrator’s decision is
reviewable. The test has been set out in Sidumo and Another v Rustenburg
Platinum Mines Limited and Others3 as whether the decision reached by the
Commissioner is one that a reasonable decision maker could not reach. The
Constitutional Court held that the arbitrator’s conclusion must fall within a
range of decisions that a reasonable decision maker could make.
[51] The Labour Appeal Court ( LAC) in Goldfields Mining SA (Pty) Ltd (Kloof Gold
Mine) v Commission for Conciliation, Mediation and Arbitration and Others4
affirmed the test to be applied in review proceedings and held that:
“In short : A review ing court must ascertain whether the arbitrator considered
the principle issue before him /her; evaluated the facts presented at the
hearing and came to a conclusion that is reasonable.”
[52] The Review Court is not required to consider every factor individually and how
the arbitrator treated and dealt with each of those factors and then determine
whether a failure by the arbitrator to deal with it is sufficient to set the award
aside. This piecemeal approach of dealing with the award is improper as the
Reviewing Court must consider the totality of the evidence and then decide
whether the decision made by the arbitrator is one that a reasonable decision
maker could make.5
[53] In Quest Flexible Staffing Solutions (Pty) Ltd (a Division of Adcorp Fulfilment
Services (Pty) Ltd) vs Lebogate (Quest Flexible Staffing)6 , the LAC confirmed
the test to be applied on review:
“[12] The test the Labour Court is required to apply in a review of an
arbitrator’s award is this: “is the decision reached by the commissioner
(1) that a reasonable decision maker could not reach?”
[54] Our courts have repeatedly stated that in order to maintain the distinction
between Review and Appeal, an award of an arbitrator will only be set aside if
3 (2007) 28 ILJ 2405 (CC) at para 110 ( Sidumo ).
4 (2014) 35 ILJ 943 (LAC) at para 16.
5 Goldfields (Id fn 4) at para 18 to 19.
6 (2015) 36 ILJ 968 (LAC) at paras 12 to 13.
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both the reasons and the result are unreasonable. In determining whether the
result of an arbitrator’s award is unreasonable, the Labour Court must broadly
evaluate the merits of the dispute and consider whether, if the arbitrators
reasoning is found to be unreasonable, the result is nevertheless capable of
justification for reasons other than those given by the arbitrator.
[55] An award will no doubt be considered to be reasonable when there is a
material connection between the evidence and the result or, put differently,
when the result is reasonably supported by some evidence.
Unreasonableness, is, thus, the threshold for interference with an arbitrator’s
award on Review.
[56] In Bestel v Astral Operations Limited and Others7 , the LAC considered the
limited scope possessed by this Court to review an arbitration award and
accepted that an arbitrator’s finding will be unreasonable if the finding is
unsupported by any evidence, if it is based on speculation by the arbitrator, if
it is disconnected from the evidence, if it is supported by evidence that is
insufficiently reasonable to justify the decision or if it was made in ignorance
of evidence that was not contradicted. The LAC held that:
“... the ultimate principle upon which a review is based is justification for the
decision as opposed to it being considered to be corrected by the Reviewing
Court; that is whatever this Court might consider to be a better decision is
irrelevant to review proceedings as opposed to an appeal. Thus, great care
must be taken to ensure that this distinction, however difficult it is to always
maintain, is respected.”
[57] It has been emphasised by the Courts that a Review is not an Appeal. This
was confirmed in Duncanmec (Pty) Limited v Gaylard N.O. and Others8
(Duncanmec ) where the Constitutional Court held that:
“[40] As is apparent from Sidumo, the genesis of the reasonable standard
of review is Section 33(1) of the Constitution which confers on
everyone the right to administrative action that is lawful, reasonable
7 [2011] 2 BLLR 129 (LAC) at para 18.
8 [2018] 12 BLLR 1137 (CC) at paras 40 to 43.
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and procedurally fair. Since an award like the one we are concerned
with here constitutes administrative action, the Constitution requires it
to be procedurally fair, lawful and reasonable. This means that an
award that fails to meet these requirements is liable to be set aside on
review. These requirements are in addition to the grounds of review
listed in Section 145 of the LOA. However, to some extent the latter
grounds may overlap with the Constitutional requirements. But the
reasonableness standard is sourced from Section 33 of the
Constitution alone. It does not form part of the overlap.”
[58] Sidumo cautions against the blurring of the distinction between Appeal and
Review and yet acknowledges that the enquiry into the reasonableness of a
decision invariably involves consideration of the merits. So as to maintain the
distinction between Review and Appeal, this Court formulated the test along
the lines that unreasonableness would warrant interference if the impugned
decision is of the kind that could not be made by a reasonable decision
maker.
[59] This test means that the Reviewing Court should not evaluate the reasons
provided by the arbitrator with a view to determine whether it agrees with
them. That is not the role played by a Court in review proceedings. Whether
the Court disagrees with the reasons is not material.
[60] The correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement if there are reasons
supporting it. The reasonableness requirement protects parties from arbitrary
decisions which are not justified by rational reasons.
[61] The review test to be applied in casu is a stringent and conservative test of
reasonableness. The Applicant is required to show that the arbitrator arrived
at an unreasonable result.
Grounds for review
First Ground – Commissioner gave preference to the Third Respondent’s version
and failed to take into account the Applicant’s version when rendering the award
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[62] When one considers the Award , this is not correct. The Commissioner set out
in detail the evidence presented by all of the witnesses, including the
Applicant.
[63] At paragraphs 24 to 45 of the Award , the Commissioner deals with the
evidence of the Respondent’s first witness, Dr Mmakhuto . At paragraphs 46 to
57 of the Award , the Commissioner deals with the evidence of the
Respondent’s second witness, Lerato Masiu.
[64] At paragraphs 58 to 94 of the Award, the Commissioner deals with the
Applicant’s evidence and arguments which spans over ten pages of the
Commissioner’s award. At paragraphs 95 to 102 of the Award , the
Commissioner then does a full analysis of the evidence and the arguments,
with the application of the law.
[65] It is clear that the Commissioner considered all of the evidence presented. In
Goldfields9 the LAC held the following on the manner of assessing evidence
before a Commissioner to determine the reasonableness of the result reached
in the award:
“In a review conducted under s 145(2)(a)(ii) of the L RA, the reviewing court
does not require to take into account every factor individually, consider how
the arbitrator treated and dealt with each of those factors and then
determined whether a failure by the arbitrator to deal with one or some of the
factors amounts to process related irregularity sufficient to set aside the
award. This piecemeal approach of dealing with the arbitrator’s award is
improper as the Reviewing Court must necessarily consider the totality of the
evidence and then decide whether the decision made by the arbitrator is one
that a reasonable decision maker could make.”
[66] The LAC emphasised the importance of a holistic assessment by finding that:
“[20] This is considered on the totality of the evidence not on a fragmented,
piecemeal analysis. As soon as it is done in a piecemeal fashion, the
evaluation of the decision arrived at by the arbitrator assumed the
form of an appeal. A fragmented analysis rather than a broad -based
9 Goldfields (Id fn 4) at para 18 .
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evaluation of the totality of the evidence defeats review as a process.
It follows that the argument that the failure to have regard to material
facts may potentially result in a wrong decision has no place in review
applications. Failure to have regard to material facts must actually
defeat the constitutional imperative that the award must be rational
and reasonable – there is no room for conjecture and guess work.”
[67] Accordingly, this ground of review must fail.
Second Ground – Commissioner failed to consider that the Applicant was not aware
of the Disability Management Policy
[68] The Applicants contention that the Commissioner failed to consider that the
Applicant was not aware of the Disability Management , is not correct.
[69] When one considers the Award, the Commissioner did consider that the
Applicant had testified that he was not aware of the Disability Management
Policy. This is borne out at paragraphs 69 - 88 of the Award.
[70] The Commissioner then made the findings that she did at paragraphs 103 to
104 (already dealt with above) which findings are reasonable, on the evidence
that was presented to the Commissioner.
[71] There was nothing before the Commissioner to demonstrate that the Disability
Management Policy had not been implemented by the Third Respondent,
when one considers that such policy was in line with the provisions of the
Mine, Health and Safety Act10 (MHSA ) and the Regulations stipulated in
section 20(2) thereof.
[72] The Commissioner also made it clear in her finding, which is reasonable , that
the Applicant had failed to follow the law in terms of section 20 of the MHSA ,
which was above any internal processes of the Respondent.
[73] The contentions by the Applicant that the disability notification specifically
stated that, “I hereby acknowledge the disability process for WCM has been
explained to myself subject to the conditions of the Disability Management
10 No. 29 of 1996.
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Agreement and Policy” specifically makes reference to the Policy which
incorporates the legislation, and which the Applicant was required to follow.
[74] The Applicant’s further contentions in his Heads of Argument that the disability
notification states that the appeal process must be commenced within thirty
days of being categorised and that this demonstrates that the appeal process
that was explained to the Applicant on 30 January 2019 was the appeal
process contained in the Disability Management Agreement , also cannot be
accepted.
[75] In terms of the MHSA , an appeal must be lodged with the Medical Inspector
within thirty days of the relevant decision or finding, or such further period as
may be prescribed. Therefore, it could have only been with reference to the
MHSA , in the Third Respondent and its employees being bound by the
legislation.
[76] Accordingly, this ground of review must also fail.
Third Ground – The Commissioner failed to consider that the Third Respondent did
not comply with the procedure as it failed to refer the matter to a medical tribunal as
required in terms of the Disability Management Agreement
[77] The Commissioner correctly and reasonably found that the Disability
Management Agreement was replaced by the Disability Management Policy
which does not require that the matter be referred to the medical tribunal for
appeal.
[78] During the testimony of the Third Respondent, evidence was led that the
Disability Management Agreement was established at a time when mining
employers were permitted to conduct appeals internally, however, when the
MHSA was amended to include section 20, all mining employers were legally
mandated to utilise the appeal process as provided for in the legislation.
[79] It was the testimony of the Third Respondent that the Applicant was advised
by Dr Mmakhuto to follow the appeal process provided for in section 20 of the
20
MHSA , available to employees through the Department of Mineral Resources
and Energy ( DMRE ).
[80] The Commissioner reasonably found at paragraph 103 of her award that the
Applicant had failed to follow the law, which was above any internal processes
of the Respondent. The Commissioner , further, reasonably found that MHSA
is very clear and that no -one had an option to do anything else, but to appeal
to DMR.
[81] It was further reasonably found by the Commissioner in terms of the evidence
led that the Applicant could not produce any evidence of his appeal to Human
Resources Practitioner and that he had instead referred to an email.
[82] Accordingly, this ground of review stands to fail.
Fourth Ground of Review – the Commissioner did not consider that the Applicant’s
categorisation was premature and not properly conducted as it was done prior to the
Applicant being referred to a Psychiatrist
[83] When one considers the evidence led in the proceedings it is clear that at the
time of the Applicant’s categorisation the Applicant had already met with
various specialists and had been given over a year to improve his physical
conditions. However, on the Applicant’s own version, the Applicant could not
even perform his duties even when they were limited to the surface only. In
this regard, it was not disputed that the Applicant was only able to do surface
work for a period of approximately a week, and that was the last time that he
rendered any services to the Third Respondent.
[84] The evidence further demonstrated that the referral of the Applicant to a
psychiatrist was intended to assist the Applicant mentally with the diagnosis
that he had received . There was no evidence, thereafter, to demonstrate that
the Applicant was medically fit to return to work, and the Applicant has not
done so since March 2018.
[85] At the time that the Applicant was categorised as “E”, such decision was taken
after Dr Mmakhuto had considered all the medical interventions that the
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Applicant had undergone and medical reports from the specialists the
Applicant had attended to. At that stage, and in accordance with the evidence,
the Applicant had been on the Third Respondent’s payroll for two years and
nine months following the incident, without being able to render any services
to the Respondent as a result of his incapacity.
[86] It was also made clear during the arbitration proceedings both in the
transcript, as well as the Commissioner’s award, that the Applicant’s physical
unfitness had persisted as even during the arbitration proceedings the
Applicant could not sit still for prolonged periods and requested to stand on
several occasions during the proceedings.
[87] Accordingly, I find no merits in this ground of review which ground of review
should also fail.
Fifth Ground of Review - The Applicant’s accommodation meeting was convened in
the absence of the Applicant’s line manager, between the Applicant and Dr
Mmakhuto which rendered the process flawed and which was not considered by the
Commissioner
[88] In terms of the evidence led in the arbitration proceedings, it was the
testimony of the Third Respondent that Dr Mmakhuto convened a meeting
with the Applicant’s line manager, Greta Van Staden before advising the
Applicant of its decision to accommodate him on the service.
[89] Whilst the Applicant’s version was that the meeting was convened in the
absence of the Applicant’s line manager, it is clear from the evidence led in
the arbitration proceedings that:
89.1. the Applicant was accommodated for surface work and his duties were
reduced, however, he still complained of back pain and could not tend
to any duties in the accommodated work ;
89.2. the Applicant was thereafter on 29 January 2019 declared permanently
incapable of working in his own or any other occupation;
22
89.3. the Third Respondent had undertaken a mass retrenchment of
approximately 1 800 employees, two months before the Applicant’s
employment was terminated and the Third Respondent was unable to
accommodate the Applicant elsewhere;
89.4. whilst the process followed by the Third Respondent during the Medical
Incapacity Process usually takes four months, as testified to by the
Third Respondent’s witness during the arbitration proceedings, the
Applicant was accommodated for a period of two years and nine
months on his full salary and benefits, after having been employed by
the Third Respondent only seven months prior to incurring his injury;
89.5. further to this, the evidence demonstrated that the Applicant was
terminated a year and a half after he was categorised, during which
time he did not only receive medical support, but assistance with
insurance claims related to his injury, reasonable accommodation in
the work place, and his full salary and benefits from the Third
Respondent;
89.6. the evidence also demonstrated that the Third Respondent engaged
with the Applicant on numerous occasions between March 2020 and
July 2020 on termination of his employment due to incapacity and
attempted to assist the Applicant by requesting the Applicant to
complete the Sanlam insurance documents, which the Applicant
refused to attend to .
[90] Over and above the Third Respondent having taken the steps set out above,
the Applicant was also paid a medical separation amount on the termination of
his employment. This amount was never paid back by the Applicant to the
Third Respondent.
[91] All of the aforementioned aspects have been addressed in the
Commissioner’s award and have led to the findings that have ultimately been
made by the Commissioner, which findings I find to have been reasonable in
the circumstances.
23
[92] Accordingly, there are no merits in this ground for review which ground should
fail.
Sixth Ground of Review – the Commissioner erred in deciding that the dismissal was
procedurally and substantively fair as the Third Respondent failed to discharge its
onus in this regard
[93] When one considers the award rendered by the Commissioner, it cannot be
said that the Commissioner erred in deciding that the dismissal was
procedurally and substantively fair and that the Third Respondent had failed
to discharge its onus in this regard.
[94] The Award made by the Commissioner runs to some thirty -three pages typed
in single spacing. It is extremely detailed and, on the face of it, appears to
represent a careful and lucid analysis of all the issues in dispute. The Award
reflects a consideration by the Commissioner of the documentary evidence,
as well as the oral testimony of the various witnesses, that was placed before
her.
[95] Further to this, when one considers the Commissioner’s Award in totality, the
necessary authorities and statutes are cited therein, and it is clear that the
Commissioner has considered the necessary material evidence of the
employee and employer’s evidence, including the Applicant’s defences and
the Commissioner has further justified how she arrived at the finding that she
arrives at the end of her Award.
[96] The Commissioner’s finding that the dismissal was procedurally and
substantively fair was, therefore, reasonable.
[97] Accordingly, this ground of review has no merit and should fail.
Analysis of the Award
[98] In terms of Schedule 8 of Good Practice: Dismissal – Item 10 – Incapacity: Ill
health or injury stipulates that:
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“1. Incapacity on the grounds of ill health or injury may be temporary or
permanent. If 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 alternative short of dismissal. When
alternatives are considered, relevant factors might include the nature
of the job, the period of absen ce, 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 of work circumstances of the employee to
accommodate the employee’s disability.
2. In the process of the investigation referred to in subsection (1) the
employee should be allowed the opportunity to state a case in
response and to be assisted by a trade union representative or fellow
employee.
3. The degree of incapacity is relevant to the fairness of any dismissal.
The cause of the incapacity may also be relevant. In the case of
certain kinds of incapacity, for example alcoholism or drug abuse,
counselling and rehabilitation may be appropriate steps for an
employer to consider.
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.”
[99] Item 11 of the same Code provides that: -
“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;
(b) If the employee is not capable –
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(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) Availability of any suitable alternative work.
[100] Section 188(2) of the LRA, as amended , further provides that: “any person
considering whether or not the reason for the dismissal is a fair reason or
whether the dismissal was effected in accordance with a fair procedure must
take into account any relevant Code of Good Practice issued in terms of the
LRA, as amended.”
[101] There is a rational connection between the evidence that was before the
Commissioner and her finding that the dismissal of the Applicant was
procedurally and substantially fair, as such reasonable finding is anchored in
the guidelines set out in the Code of Good Practice and the LRA
aforementioned.
[102] That the above is the case is, inter alia borne out by paragraphs 96 to 102 of
the Commissioner’s Award.
[103] Based on the above, the Commissioner did not misconceive the nature of the
enquiry that was before her, as she dealt with the determination of the
substantive and procedural fairness of the Applicant, within the corners of the
guidelines provided for above.
[104] In line with these guidelines, the Commissioner made the findings that she did
at paragraph 100 to 102 of her Award.
[105] The Commissioner then found that the dismissal of the Applicant was
procedurally and substantively fair.
[106] Based on all the reasons above, the Court is persuaded that the
Commissioner arrived at a reasonable finding that the dismissal of the
Applicant was substantively and procedurally fair under the circumstances.
Conclusion
26
[107] When one considers the test that this Court is required to apply in a review of
an arbitrator’s award, as contained in Sidumo11, it cannot be said that the
arbitration award in this instance is reviewable. The decision reached by the
Commissioner was one that a reasonable decision maker could reach when
one considers the facts of this matter.
[108] As a general proposition, I find that the Commissioner, in declaring the
Applicant’s dismissal procedurally and substantively fair, properly determined
the evidence before her, and the findings which is fully supported by the
evidence. There is simply no reason to interfere with her arbitration award.
Reference is made to the following extract from Crown Chickens (Pty) Limited
t/a Rocklands Poultry v Kapp and Others12:
“[19] Arbitration awards issued by the CCMA may be reviewed on any of
the grounds set out in Section 145 of the Act more especially where
the Commissioner has committed a gross irregularity in the conduct of
the arbitration proceedings. The decision of the arbitrator can also be
set aside if it is not rationally related to the purpose for which the
power was given from an objective view ... By rational I understand
that the award of an arbitrator must not be arbitrary and must have
been arrived at by a reasoning process as opposed to conjecture,
fantasy, guesswork or hallucination. Put differently the arbitrator must
have applied his mind seriously to the issues at hand and reasoned
his way to the conclusion. Such conclusion must be justifiable as to
the reasons given in the sense that it is defensible, not necessarily in
every respect, but as regards the important logical steps on the road
to Order.”
[109] In the premise the following order is made :
Order :
1 The review application is dismissed;
2 There is no order as to costs.
11 Supra.
12 (2002) 23 ILJ 863 (LAC) at para 19.
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____________________
R. Adams
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : Sabelo Khanya
Instructed by : Ismail and Dahya Attorneys
For the Respondent : Advocate Mike Van As
Instructed by : Lawtons Africa Inc.