THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not r eportable
Case Number: C238/2022
In the matter between:
LE FRANSCHHOEK HOTEL (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION First Respondent
AND ARBITRATION (CCMA)
BECKET A.L Second Respondent
GLENFORD FERUS Third Respondent
Heard: 13 August 2024
Delivered: 3 March 2025
(This judgment was handed down electronically by circulation to the parties’
legal representatives, by email, publication on the Labour Court’s website and
released to SAFLII. The date on which the judgment is delivered is deemed to be 3 March 2025.)
JUDGMENT
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FORD, AJ
Introduction
[1] This is an application to review and set aside the arbitration award of the
second respondent (“the commissioner”), dated 28 A pril 2023. The commissioner
found the third respondent ’s (“Ferus”) dismissal substantively unfair and awarded
him compens ation equivalent to 6- months’ salary.
[2] Unhappy with that decision, the applicant (“Le Franschhoek”) institut ed review
proceedings in this court , to set aside the commissioner’s award.
[3] The application is unopposed.
The facts
[4] Le Franschhoek forms part of the Dream Hotels and Resorts Group. The
group owns some 21 hotels, and 100 resorts located mainly in South Africa. It employed Ferus as an executive chef from 18 January 2018, with him earning a
gross monthly salary of R32,000.00 at the time of his dismissal.
[5] Ferus oversaw 3 restaurants as well as the training, room service and kitchen
staff. His duties included managing the ki tchens, training and directing staff, Human
Resources duties, controlling all food and beverages , stock- taking, purchase orders,
budget management , food production, health and safety, hygiene compliance,
planning and testing new menus, consulting with clients and guests and planning menus for events. Ferus occupied a very senior position.
[6] On 9 January 2019, while Ferus was off duty, he received a call from the
kitchen staff informing him that the kitchen was on fire. A chip fryer caught fire.
[7] Ferus rushed to the scene. On his arrival he found the fire to be out of control.
Drawing on his previous training on fire- fighting, Ferus , as the safety officer for Le
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Franschhoek , took control of the situation. He told everyone what to do in order to
contain the fire and limit its spread.
[8] He and others formed a queue, each with fire- extinguishers, him in front of the
queue – dous ing the fire. When fire emergency services arrived, they congratulated
Ferus and the staff for the efforts they took to contain the fire, indicating that – but for
their efforts , the whole building could have burnt down.
[9] The damage caused by the fire was palpable. The main kitchen burnt down
as well as some of Ferus’ personal equipment . Notwithstanding the incident, Ferus
still had to ensure that hotel guests were catered for , so he set up a temporary
kitchen from whence he prepared meals for the hotel patrons. This continued until or
about 11h00am , until the hotel manager ordered him and the affected staff to go for
check -ups at Mediclinic.
[10] Ferus only returned to work at 18h00pm that day. According to him, he
inhaled smoke, which damaged his lungs.
[11] Things continued like normal for the rest of January and February 2019. This
is also Le Franschhoek’s peak season.
[12] In March 2019, so Ferus explained, t he work pressure became less and he
started to feel effects of what transpired in January that year . He was struggling to
sleep, experienced panic attacks and anxiety. He was absent from work for a few
days , thereafter intermittently over the following months.
[13] Ferus discussed the situation with Mr. Chris Snyman, the general manager,
who referred him to ICAS (Independent Counselling and Advisory Services) for a
consultation. ICAS then adv ised Ferus to seek treatment.
[14] In April 2019, he went to see a psychologist, Dr. Bill Skinner at the Pines
Clinic in Worcester. He also consulted his general practitioner who started him on medication. Dr. Skinner suggested that Ferus sees Dr. Viljoen at the Worcester
hospital as an outpatient.
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[15] Dr. Viljoen recommended light duty for Ferus, and if not possible, sick leave
and inpatient treatment for Ferus from 28 August 2019 - December 2019. The letter
in its relevant parts reads as follows:
The above -mentioned patient was seen at our Outpatient Department on
28/08/2019. Mr. Ferus meets the criteria for a Major depressive episode, with
features of marked anxiety. Therefor his functional ability is impaired and he is unlikely to be able to return to duty as before.
If possible, light duty is advised, but if unable in his current occupational duties, sick leave is advised for the period 28/08/2019 until 31/12/2019.
[16] In July 2019, Mr. Snyman sent Ferus for an assessment to Dr. Bennie Marais.
He wrote to Mr. Snyman on 25 July 2019, stating , inter alia :
1. DIAGNOSIS
General Anxiety Attack with panic attacks
Major Depressive Episode
Traces of Post Traumatic Stress
Flashback after the fire in the main kitchen.
2. PRECIPITATING FACTORS
The fire in the main kitchen which completely destroyed the kitchen.
3. …
4. FUTURE TREATMENT
Mr. Ferus should consult a Psychiatrist for an adjustment to his
medication and a 21 day inpatient treatment program in a Psychiatric Clinic.
Unfortunately, no Psychiatrist or Psychiatric Clinic deals with the Workman’s
Compensation Fund (WCA) . Mr. Ferus is not on medical aid. I have spoken to
a medical officer at the Psychiatric Department of Worcester Hospital. He
could be admitted as an emergency case, but treatment in the psychiatric
ward would not be appropriate due to the severity of the illness of the other patients.
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5. RECOMMENDATION
The best possible and optimal treatment would be a 21 day inpatient
treatment at Pines Clinic in Worcester . If the company could arrange for
payment and then claim it back from WCA they would most probably be
willing to treat him. It is advisable to contact them for quotes first . If it is not
possible, treatment at Worcester Hospital is the alternative. It is unfortunately not as optimal as inpatient treatment.
6. …
7. PROGNOSIS
Should Mr. Ferus be treated optimally by a Psychologist in conjunction
with an inpatient programme he would be able to function again on the same
level as before. Obviously his condition would be re- evaluated after his
treatment.
[17] Le Franschhoek gave Ferus two months off to attend to his treatment. He was
accordingly not expected to have been at work for the period, August and September
2019, but had to report for duty on 1 October 201 9.
[18] Le Franschhoek managed, in the interim, to secure a temporary replacement
for Ferus , but that it was not (according to Mr. Snyman) possible to adapt the
position to accommodate Ferus.
[19] Ferus stated that he informed Mr. Snyman, via WhatsApp that he was unable
to return to work as he was still on treatment. Mr. Snyman denied ever receiving the WhatsApp message from Ferus.
[20] From or about 28 October 2019, Ferus started inpatient treatment at
Lentegeur Pscychiatric Hospital. The treatment continued until 22 November 2019. It
was Ferus’ wish to return to work after his treatment was completed. Ms. Chantelle
Stanley, the chief occupational therapist at Lentegeur gave four recommendations in
respect of Ferus:
11. RECOMMENDATIONS
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(a) It is recommended that Mr. Ferus returns to work with support from his
employer to facilitate the return to work process .
(b) It is recommended that reasonable accommodation be made for Mr.
Ferus by his employer with regard to his reintegration back into the work
environment. These could consist of reducing the amount of kitchen that the client is responsible for. With reducing the kitchen responsibility this will automatically reduce the amount of stress the client experiences. This will also allow for better work hours which would assist the client in his recovery process. This would be until the client is ready for his norm al work
schedule/duties.
(c) If no accommodation can be made at Le Franschhoek Hotel and Spa
with regard to the above, then it is recommended that alternative work
placement be sourced for the client that has a less demanding work day.
(d) It is recommended that the client and the employer maintains and open
dialogue with regards to the client’s recovery process.
[21] On 4 December 2019 Ferus was requested to attend an incapacity hearing.
Pursuant thereto, Le Franschhoek terminated Ferus’ employment on grounds of
incapacity. Unhappy with that decision, he referred an unfair dismissal dispute to the
CCMA.
[22] The evidence before the commissioner is a narration of the factual account
set out herein, save to add that Ferus confirmed that he was offered an alternative
position, which he declined. The position was in a different province and would have
meant that he would have been away from his children. There was however another
position at Piekenierskloof Mountain Resort , in Citrusdal, but that position was not
offered to him. Le Franschhoek stated that the position only became available after
Ferus was dismissed.
[23] Ferus stated in addition that, his absence from work was on account of his
illness and treatment, and that all the medical certificates , in respect thereof, were
submitted to Le Franschhoek.
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[24] At the arbitration Le Franschhoek alleged that his childhood asthma illness
caused the damage to his lungs, which Ferus denied, s tating in turn that the lack of
oxygen reminded him of the asthma attacks he suffered as a child.
[25] Ferus was challenged about the absence of direct references to PTSD in the
various doctors’ letters and he responded stating that acute stress disorder is mentioned.
The commissioner’s findings
[26] The commissioner considered Ferus’ incapacity from the perspective
advanced by the Code of Good Practice on dismissal
1. She had particular regard to
item 10(4) of the Code which states:
Particular consideration should be given to employees who are injured at work or who are incapacitated by [a] work related illness. The court have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
[27] The commissioner found that the mental and emotional injury and ill health
the applicant incurred, which led to his capacity to perform his work , happened
during the course of his employment.
[28] The commissioner noted that Le Franschhoek investigated the extent of
Ferus’ incapacity which was not considered permanent . Further that Ferus would be
able to resum e his normal duties after receiving the recommended in -patient
treatment. In this regard the commissioner stated:
Had the respondent assisted the applicant [Ferus] and paid for private in -
patient treatment (as suggested by the respondent’s psychologist in July 2019), the length of the applicant’s incapacity and days of absence could
have been considerably reduced.
[29] The commissioner found that owing to the injury being workplace related that
a greater responsibility rested on Le Franschhoek , stating that:
1 Schedule 8 of the Labour Relations Act, Act 66 of 1995 as amended, item 10.4
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Considering that the applicant’s ill -health was “directly linked to the incident at
work” (as stated by the respondent’s psychologists ), the duty on the employer
is more onerous to accommodate the applicant’s incapacity and more should
have been done to assist him. Although workman’s compensation was mentioned by the respondent, the applicant stated that he had received
nothing to date, three years after the incident . According to the Compensation
for Occupational Injuries and D iseases Act (COIDA), the empl oyer should
have reported the incident, and paid the employee (who is temporarily
disabled) compensation for the first three months of absence from work, which would then be reimbursed by the Fund. No evidence was provided to prove that this had been done . There was no mention of the respondent
assisting the applicant with extended sick leave benefits from the Unemployment Insurance Fund either.
[30] The commissioner found that the occupational therapist recommended that
Ferus return to work with support from Le Franschhoek , which was what he wanted,
but that Le Franschhoek was unwilling to do so.
[31] The commissioner noted Le Franschhoek’s concern that it was detrimental to
its operations to continue without the essential services of the head chef, and that it was not easy to find a replacement for the position, due to the nature of the work. The commissioner found though that the appointment of a temporary replacement
during the time of Ferus’ absence, was not done as an alternative to termination.
[32] She found that if Ferus was given the appropriate assistance, he could have
returned to his previous level of performance . She stated:
Had there been no fire, or had the applicant not risked his own life and health
on behalf of the respondent, none of this would have happened.
[33] The commissioner found Ferus’ dismissal procedurally fair but substantively
unfair, and awarded him 6 months ’ salary as compensation for his unfair dismissal.
Analysis
[34] Section 188(2) of the LRA. It provides that:
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‘any person considering whether or not the reason for dismissal is a fair
reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in
terms of this Ac t’.
[35] Schedule 8 to the LRA embodies the code in relation to dismissal. Items 10
and 11 thereof provide as follows:
10: Incapacity: Ill -health or injury
(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 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 5 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) 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 the 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 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 incapacity of the
employee is more onerous in these circumstances. 11: Guidelines in cases of dismissal arising from ill -health or injury.
Page 10 of 13
Any person determining whether a dismissal arising from ill -health 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.
[36] Molemela AJA stated in Independent Municipal and Allied Trade Union obo
Strydom v Witzenburg Municipality and Others
2, the following when considering
items 10 and 11 of the Code:
My reading of item 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.
[37] A very important consideration in this matter is what Ferus ’ status was as at 4
December 2019, both in respect of his prognosis and recovery. I will return to this aspect a little later herein.
[38] In this application, Le Franschhoek seeks to have the commissioner’s award
reviewed and set aside on grounds that the decision is one a reasonable decision-
maker, could not reach.
2 [2012] 7 BLLR 660 (LAC); (2012) 33 ILJ 1081 (LAC) (13 February 2012)
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[39] A commissioner’s arbitration award is final and binding. It can only be set
aside by this court, if it is found that the decision is unreasonable in light of the
evidential material placed before the commissioner.
[40] In County Fair Foods (Pty) Ltd v CCMA & Others
3, the following is said :
“However, the decision of the arbitrator as to the fairness or unfairness of the
employer’s decisions is not reached with reference to the evidential material
that was before the employer at the time of its decision but on the basis of all
the evidential material before the arbitrator. To that extent the proceedings are
a hearing de novo.”
[41] The test for review is trite. Its principle s have been set in stone in Sidumo and
Another v Rustenburg Platinum Mines Ltd and Other s4. In Sidumo, the court held
that ‘ the reasonableness standard should now suffuse s 145 of the LRA ’, and that
the threshold test for the reasonableness of an award was: ‘… Is the decision
reached by the commissioner one that a reasonable decision -maker could not
reach?...’5
[42] In many review applications instituted in this court, like this one, a plain
reading of the papers makes it apparent that the review is cast in terms that very closely resembles an appeal. Especially where it is implied that the commissioner was wrong or misdirected himself. The threshold for a party to succeed in review proceedings, is extremely high. In order to be successful in review proceedings in
this court, a litigant must set out the basis on which the commissioner’s decision was
unreasonable. A commissioner’s decision can be wrong, but not unreasonable.
[43] In Mooki v CCMA and Others
6 Van Niekerk J , explained that reasonableness
does not equate to correctness and that a decision made by an arbitrator that is wrong will pass muster. He said:
The test established by the Constitutional Court in Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC) and
3 [1999] 11 BLLR 1117 (LAC); (1999) 20 ILJ 1701 (LAC) at para 11
4 (2007) 28 ILJ 2405 (CC).
5 Id at para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at
para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 96.
6 (JR772/15) [2017] ZALCJHB 173 (3 February 2017) para 5
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affirmed by the Supreme Court Of Appeal in Herholdt v Nedbank Ltd
(Congress of South African Trade Unions as amicus curiae [2013] 11 BLLR 1074 (SCA) empowers this court to interfere with an award made by an arbitrator if and only if the arbitrator 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. What this amounts to is an outcomes -based enquiry, a stringent test aimed to ensure
that this court is not likely to interfere with arbitration awards. The Labour
Appeal Court has made clear that reasonableness does not equate to
correctness and that a decision made by an arbitrator that is wrong will pass
muster provided it is not so wrong as to be unreasonable (see Bestel v Astral
Operations Ltd & others [2011] 2 BLLR 129 (LAC) per Davis JA, who at
paragraph 18 of the judgment emphasised the need to distinguish between
reviews and appeals).
[44] In the matter before me, it is beyond dispute that Ferus suffered a work -
related injury, which caused hi s incapacity.
[45] The medical experts in their reports are consistent in Ferus’ diagnosis and his
prognosis for recovery . None of these experts and their conclusions were at any
point challenged or disputed.
[46] This places Ferus’ circumstances squarely within the ambit of item 10(1) of
the Code. The commissioner’s reasoning about the Le Franschhoek’s duty vis a vis
Ferus was absolutely correct . There is nothing unreasonable about that finding.
[47] At the time when the incapacity hearing was conducted, it was evident that
Ferus was at that point ready to assume his position. All steps advanced by Le
Franschhoek to accommodate Ferus had yielded, at least up until 4 December 2019,
the desired result s.
[48] The delay between the result of the treatment that Ferus was exposed to and
the initial diagnosis, is directly attributable, as the commissioner correctly concluded, to Le Franschhoek’s lack of assistance which in the particular circumstances visited
a more onerous duty on it, in light of the genesis of the injury sustained by Ferus.
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[49] By 4 December 2019, Le Franschhoek had not appointed anyone into Ferus’
position, which meant the post was still available. Ferus reported himself ready to assume the role, and the experts who treated him confirmed his readiness to do so. There was accordingly no longer a basis for accommodation as required in terms of the Code. Nor was there a basis to refuse Ferus’ resumption of his duties . Le
Franschhoek’s failure to, or refusal to permit Ferus to assume his position
constituted a dismissal. This is in a nutshell the conclusion that the commissioner
arrived at.
[50] I am unable to find that the commissioner’s reasoning and decision in respect
of this matter can be assailed on the basis of unreasonableness.
[51] I accordingly find no reason to interfere with the decision of the commissioner
and make the following order as a result:
Order
1. The application is dismissed.
2. I make no order as to costs .
Bart Ford
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. De Kock
Instructed by: CK Inc Attorneys
For the third respondent: No appearance