THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JR 2670/19
In the matter between:
SOUTH AFRICAN BROADCASTING
CORPORATION (SOC) LTD Applicant
and
THE CCMA First Respondent
COMMISSIONER ERIC MYHILL Second Respondent
THERESA VICTORIA GELDENHUYS Third Respondent
Heard: 27 January 2022
Edited: 04 February 2022
Revised: 05 February 2026
Summary: Opposed review – dismissal related to capacity – reason for the
dismissal and the justification thereof. Incapacity is not only to be confined to
conventional poor work performance and ill -health. Intermittent and persistent
absence – form of poor performance - entitles an employer to dismiss for
reasons of incapacity. Where an employer dismisses for reasons related to
capacity such constitutes a fair reason to terminate. The employer is thus
2
entitled to justify the dismissal using the r eason that led to the dismissal . A
commissioner who rejects the reason advanced by an employer to justify a
dismissal is a commissioner not performing his or her statutory duty to
determine the fairness of a dismissal in a fair manner.
Failure to exercise a discretion to allow legal representation does not per se
render a dismissal that ensues thereafter to be procedurally unfair. The rules
of natural justice allow flexibility. The GCEO was entitled to investigate the
extent of the incapacity. A finding that the dismissal of the applicant is
procedurally unfair is not one that a reasonable decision-maker will reach.
In interpreting the Labour Relations Act, No. 66 of 1995, this Court is obligated
to prefer any reasonable interpretation that is consistent with international law
over any alternative interpretation that is inconsistent with international law.
The provisions of the ILO conventions considered for the pur pose of
interpreting the term capacity.
A commissioner is bound to follow decisions of the Labour Court and the
Labour Appeal Court or other higher Courts. Failure to do so amounts to a
reviewable irregularity.
Having failed to consider alternatives short of dismissal, the dismissal was not
a measure of last resort and or appropriate. The finding that the dismissal is
substantively unfair remains justifiable and falls within the bands of
reasonableness. The compensation awarded is just and equitable and there is
therefore no basis to interfere with the exercise of discretion.
Held: (1) The award issued by the commissioner is to a limited extent reviewed
and set aside and it is replaced with an order that the dismissal was
procedurally fair. Held: (2) There is no order as to costs.
JUDGMENT
3
MOSHOANA, J
Introduction
[1] This is an application seeking to review and set aside an arbitration award
issued by Commissioner Eric Myhill (Myhill) in terms of which, he found that
the dismissal of Ms Theresa Victoria Geldenhuys (Geldenhuys) effected by
the South African Broadcasting Corporation SOC (Ltd) (SABC) was both
substantively and procedurally unfair. Myhill ordered the SABC to pay
Geldenhuys an amount equivalent to R1 790 023 as compensation. Further
he ordered the SABC to pay an amount of R16 400 in respect of costs. The
application is duly opposed by Geldenhuys. There is no challenge for the
wasted costs order.
Background facts
[2] To a large degree, this dispute turns on what form of incapacity justifies the
dismissal effected by the SABC. For that reason, it shall not be necessary to
detail all the facts in this dispute. It suffices to state that the arbitration
proceedings were conducted over a period of about six days. The record is
voluminous. It comprises of five lever-arch files. The pronounced facts of this
matter are that Geldenhuys was employed by the SABC as the Group
Executive: Governance and Assur ance. It is common cause that Geldenhuys
was intermittently absent from work for an extended period of time. It is also
common cause that the reason for the intermittent absence was her ill-health.
[3] On or about 03 September 2018, Geldenhuys returned to work and indicated
to the SABC that she is fit to continue with her work. However, on 3
December 2018 up to and including 10 December 2018, Geldenhuys was
certified unfit for work due to ill -health. Nevertheless, on 1 October 2018, the
Group Executive Officer of the SABC, Mr Madoda Mxakwe (Mxakwe), notified
4
Geldenhuys to attend an incapacity investigation. The said notice read as
follows:
“NOTICE TO ATTEND AN INCAPACITY INVESTIGATION
1 Kindly take note that the South African Broadcasting Corporation
(SOC) Ltd has concerns with your work attendance and the impact
your ill-health has had on the fulfilment of your contractual obligations.
As such the company hereby invites you to an incapacity investigation
to explore the extent of your ill -health and possible alternatives if
any…”
[4] Geldenhuys was informed in the notification that she has a right to be
represented by a fellow employee within the SABC. That notwithstanding,
Geldenhuys sought to be legally represented during the investigation. She
launched a formal application for legal representation as assisted by her
attorneys of record. The request was declined by Mxakwe. Inasmuch as the
contents of the minutes of the investigation meeting were and are still hotly
contested, it remained common cause that an investigation meeting took
place on 8 October 2018.
[5] After the investigation meeting, Geldenhuys continued with her work and
cleared backlogs that emerged during her prolonged absence. As indicated
above, Geldenhuys was again absent due to ill -health for a few days in
December 2018. On 18 December 2018, Geldenhuys received a notice of
termination. It is not necessary to quote the termination letter in full. Suffice to
mention that Mxakwe made reference to the Schedule 8 of the Labour
Relations Act
1 (LRA) as well as the investigation hearing that was held on 8
October 2018. He then recorded that the SABC has resolved to terminate the
services of Geldenhuys and set out the following:
“4 Owing to your seniority, your role and responsibilities as well as taking
into account the operational requirements of the company and also
owing to your continued absence which renders you unable to fulfil
1 No. 66 of 1995, as amended.
5
your contractual obligation, it is not reasonably practical to
accommodate you anywhere else within the company and as such
there are no possible alternatives that may be considered to suit your
medical condition, which has a continual negative impact on the
expected deliverables due to continued absence from work.”
[6] Aggrieved by her dismissal, Geldenhuys , duly assisted by her attorneys of
record, referred a dispute to the Commission for Conciliation, Mediation and
Arbitration ( CCMA) and alleged unfair dismissal. In the referral form
completed by Geldenhuys on 8 January 2019, she alleged that the unfair
dismissal she was referring to the CCMA related to capacity. In alleging that
the dismissal was substantively unfair, she stated that there was no medical
related reason to dismiss her . With regard to procedural fairness, she alleged
that the internal procedure was chaired by her supervisor, who also made the
decision to dismiss2.
[7] Commissioner T Boyce failed to resolve the unfair dismissal dispute and
certified on 25 November 2019 that the dispute outlined above remained
unresolved. On 04 February 2019, Geldenhuys’ attorney requested the
CCMA, on her behalf, to resolve the dispute through arbitration. The CCMA,
as requested, appointed Myhill to resolve the dispute through arbitration.
[8] On 8 April 2019, the arbitration proceedings commenced. Myhill confirmed
that it was common cause that there was a dismissal relating to incapacity.
Both the SABC and Geldenhuys were legally represented at the arbitration
proceedings. In outlining her case, Geldenhuys’ attorney stated the following:
“Therefore, the applicant disputes that she was medically unfit to render
services to the SABC under her contract, which was signed by the SABC and
herself, which is valid...”
2 Effectively, she was alleging that Mxakwe was a referee and a player at the same time. Supposedly,
this being in breach of the maxim nemo in propria causa iudex esse debet.
6
[9] Notably, no procedural defect s were alleged and outlined at this point . The
meeting of 8 October 2018 where the allegations and concerns were laid out
was admitted as having taken place. In justifying the fairness of the dismissal,
the SABC presented the testimony of Mxakwe and Mr Vanara. Geldenhuys
testified in her own case.
[10] On 28 October 2019, Myhill published the impugned arbitration award.
Grounds for review
[11] The SABC contended that Myhill ignored material and relevant evidence,
thereby failing to apply his mind. It further contended that Myhill ignored case
law emanating from the Labour and Labour Appeal Courts which clarified the
applicable legal principles. Myhill failed to properly analyse the evidence and
the facts presented before him . The decision of Myhill is not one that a
reasonable decision-maker may reach. The award of compensation is not one
that is just and equitable and Myhill exceeded his powers in awarding the
compensation.
Evaluation
[12] Before this Court can assess whether the impugned award meets the
constitutional standard or not , certain legal principles require clarification and
confirmation. The Constitutional Court in Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
3 cautioned Labour Court judges about judic ial
overzealousness. It is not the duty of a judge to be idiosyncratic when dealing
with arbitration awards. As held in Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others 4 and confirmed in Sidumo,
there must be a measure of deference to the expertise of adm inistrative
bodies. The CCMA through its commissioners is a body that is statutorily
empowered to resolve unfair dismissal disputes of certain categories. The
3 (2007) 28 ILJ 2405 (CC).
4 2004 (7) BCLR 687 (CC).
7
legislature commanded that no appeal lies against the decisions of
commissioners. Thus , a line between an appeal and a review must be
maintained and not to be blurred. Just to recap, the grounds set out in section
145 of the LRA are suffused into the constitutional standard of
reasonableness. The ultimate crucial question for the Court of review is
whether the decision is so unreasonable that no other reasonable decision -
maker may reach it. By its own standards this is a stringent test to be applied
by a Court of review. It requires consideration of the bands of
reasonableness. Thus, if a decision falls within the bands of reasonableness,
this Court even if it could have reached a different conclusion is not
empowered to interfere. A simple reason for that , is that, in terms of section
143(1) of the LRA , commissioners are authorised to issue arbitration awards
that are final and binding on the parties. Additionally, one of the purposes of
the LRA spelled out in section 1 (d) (iv) is to promote effective resolution of
labour disputes. Thus, finality in labour disputes is pivotal and fundamental.
[13] Having said that, a further imperative which commands itself to the rule of law
is that everyone has the right to an administrative action that is lawful,
reasonable and procedurally fair as required by section 33 (1) of the
Constitution of the Republic of South Africa, 1996. Additionally, section 138
(1) of the LRA impels a commissioner to determine the dispute fairly. A
commissioner who commits misconduct in relation to his or her duties as an
arbitrator; who commits a gross irregularity in the conduct of the arbitration
proceedings; or exceeds his or her powers, cannot be said to be acting fairly ,
and above all, lawfully and reasonably.
Applicable legal principles
[14] It is by now trite what the review standard is. As an opening gambit, the
statutory duty of a commissioner appointed to arbitrate is to only arbitrate the
statutory duty of a commissioner appointed to arbitrate is to only arbitrate the
dispute. Section 191 (1) (a) of the LRA provides that if there is a dispute about
the fairness of a dismissal the employee may refer the dispute to the
Commission. In casu , Geldenhuys did exactly that. Section 191 (5) (a) of the
8
LRA obligates the Commission to arbitrate at the request of an employee,
where an employee has alleged that the reason for dismissal is related to the
employee’s capacity. I pause to mention that the section uses the phrase ‘has
alleged’. In other words by the time the referral reaches the Commission, an
employee would have alleged the reason to which his or her dismissal relates.
The Commission seized with a referral alleging unfair dismissal related to the
reason alleged by an employee is obliged to appoint an arbitrator, who must
determine the dispute about an unfair dismissal related to the reasons alleged
by the employee fairly and quickly.
[15] The implications of the above statutory provisions is that if an employee
alleges that his or her dismissal is related to capacity, an arbitrator cannot
determine a dismissal related to misconduct. In due course, this Court shall
deal with the issue of what the word capacity, as employed in section 188 of
the LRA, means. In the referral form, Geldenhuys alleged that her dismissal is
related to capacity. She expressly stated that there was no medical related
reason to dismiss her . Stripped to its essential bareness, this allegation
means that in so far as she was concerned, there was no medical related
reason – ill health, which would justify her dismissal.
[16] Section 192 of the LRA places an onus on an employee to establish a
dismissal and an onus on the employer to prove that the established dismissal
is fair. Therefore, it becomes the duty of an employer to prove that the reason
for dismissal is a fair reason related to the employee’s capacity. In referring
the dispute, Geldenhuys has expressly discounted medical reasons to relate
to her dismissal. One thing is certain, both Geldenhuys and the SABC were
ad idem that the dismissal is related to capacity. In order to justify the
dismissal, the SABC had to prove capacity, lack thereof, in whatever form.
dismissal, the SABC had to prove capacity, lack thereof, in whatever form.
The key question in this judgment is what the word capacity means. This
question is akin to the one of what the true reason for a dismissal is? During
argument, Ms Steenkamp, appearing for Geldenhuys acceded to the
proposition from the bench that the parties to the dispute suggested different
forms of incapacit y and Myhill accepted the one of Geldenhuys and rejected
9
that of the SABC. On proper consideration of this matter, Geldenhuys did not
suggest any form of incapacity. As far as she was concerned she was
capacitated and therefore, the SABC had no fair reason to dismiss her. On
the other hand, the SABC suggested that continued and intermittent absence
due to ill-health is a performance issue which impacted on her capacity.
[17] The journey for Geldenhuys with regard to the incidence of onus terminated
once dismissal as defi ned in section 186 of the LRA was established. From
that point on, the SABC took over the driver’s seat. Therefore, consistent with
section 34 of the Constitution of the Republic of South Africa, 1996 – which
decrees that everyone has the right to have any dispute that can be resolved
by the application of law decided in a fair public hearing before an
independent and impartial tribunal or forum – the SABC needed to show by
way of evidence that the undisputed prolonged and intermittent performance
impacted on the capacity of Geldenhuys to justify her dismissal . Additionally,
the SABC needed to not only allege but also prove that dismiss al was a
measure of last resort and appropriate.
[18] Section 188 (1) of the LRA provides that a dismissal that is not automatically
unfair, is unfair if the employer fails to prove that (a) the reason for dismissal
is a fair reason related to the employee’s capacity; and that (b) the dismissal
was effected in accordance with a fair procedure. In some respects, capacity
shares similarities with operational requirements. Both are based on a no-fault
fulcrum. However, the LRA only defines what operational requirements means
and does not afford the terms capacity and misconduct any special meaning.
Mr July for the SABC, forcefully submitted that there is no need for the
legislature to define capacity, since it is the duty of the Courts and the CCMA
as well as other dispute resolution fora to give meaning to the term capacity. I
as well as other dispute resolution fora to give meaning to the term capacity. I
have a fundamental difficulty with that submission. When one considers the
definition of operational requirements, one observes forms of operational
requirements as opposed to a definition of the term “operational requirements”
and those are economic, technological, structural or similar needs of an
employer. It would have been helpful, in my view, for the legislature to provide
10
forms of lack of capacity in order to give the much needed guidance to the
Courts and labour dispute resolution forums. Withal, I now turn to an attempt
to give meaning to the term capacity.
What does capacity mean?
[19] The dictionary meaning of the word capacity is the ability or power to do or
understand something
5. Incapacity is defined to mean physical or mental
inability to do something. In line with the constitutional imperatives outlined in
section 233 (1) of the Constitution, the word must be given an interpretation
that is consistent with international law. Section 3 (1) (c) of the LRA
commands that a person applying the LRA must interpret its provisions in
compliance with the public international law obligations. South Africa is a
member of the International Labour Organisations (ILO) and has ratified its
Conventions. Section 188 owes its origin from the ILO Conventions. In terms
of article 4 of the Termination of Employment Convention, 158 of 1982
(Convention 158), the employment of a worker shall not be terminated unless
there is a valid reason for such termination connected with the capacity or
conduct of the worker or based on the operational requirements of the
undertaking, establishment or service. Based on article 4, any dismissal that
is connected to capacit y is a valid one . Article 4 employs ‘connected’ whilst
section 188 of the LRA employs ‘related’. These are synonyms or rather two
sides of the same coin, which means brought together or into contact.
[20] Based on the above, if there is a connection or relation between a dismissal
and capacity, a valid reason to dismiss does exist. Section 188 of the LRA
refers to a fair reason instead. In the notes of the Committee of Experts on the
application of the Conventions and Recommendations (November –
December 2008), the following was stated:
“(i) Reasons connected with the capacity of the worker
5 Oxford Dictionary of English.
11
A lack of capacity, or aptitude, on the part of the worker can take two
forms, (a) it can result from a lack of skills or qualities necessary to
perform certain tasks, leading to unsatisfactory performance; and (b)
poor work performance not caused by intentional misconduct, as well
as various degrees of incapacity to perform work as a result of illness
or injury.
[21] Poor work perf ormance occurs when an employee’s performance fall s below
the required standard. Persistent absenteeism is a form of poor work
performance. It follows axiomatically that persistent absenteeism affects the
aptitude or the inherent ability of an employee to deliver his or her contractual
obligations. That is nothing but lack of capacity – incapacity.
[22] In short, capacity means amongst others an inherent inability to deliver on the
contractual obligations. Once that inability is shown to exist, which inability
manifests itself through persistent absenteeism, be it for genuine reasons – ill-
health or unauthentic reasons – malingering, then a valid and/or fair reason to
dismiss exists.
Schedule 8 of the LRA and its application.
[23] Mr July submitted that Schedule 8 of the LRA is a mere guideline. In item 1 of
Schedule 8, it is stated that it is intentionally general and departure from t he
norms established by it may be justified in proper circumstances. Item 8 deals
with poor work performance as a form of lack of capacity . Recommendation
166 of Convention 158 provides that (a) t he employment of a worker should
not be terminated for unsatisfactory performance unless the employer has
given the worker appropriate instructions and written warning and the worker
continues to perform his duties unsatisfactorily after a reasonable period of
time for improvement has lapsed; and (b) that a worker should be entitled to
be assisted by another person when defending himself , i n accordance with
article 7 of the Termination of Employment Convention, 1982, against
article 7 of the Termination of Employment Convention, 1982, against
allegations regarding performance liable to result in the termination of his
employment. Article 7 of the Convention 158 provides that the employment of
12
a worker shall not be terminated for reasons related to the worker ’s
performance before he is provided an opportunity to defend himself against
the allegations made. The Committee of experts stated that the purpose of
article 7 is to ensure that any decision to terminate employment is preceded
by dialogue and reflection between the parties.
[24] Against this background, section 188 (2) of the LRA provides that any person
considering whether or not the reason for the 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
the LRA. This simply means that when considering the fairness (both legs of
substantive and procedural fairness) of a dismissal, a commissioner or a
judge is obligated to take into account Schedule 8 for instance. Does take into
account mean slavish following of the Code? Definitely not. Take into account
means considering something when one thinks about a situation or deciding
what to do. In other words, Schedule 8 becomes more like an aide memoire.
What section 188 (2) obligates is to seek aid from Schedule 8. Ultimately, the
question is one of fairness. If fairness can be achieved without the aide
memoire so be it. The Schedule places premium on both employment justice
and the efficient operation of business. It recognises that employers are
entitled to satisfactory work performance from their employees. It seeks to
foster mutual respect between the employee and employer.
[25] Regard being had to the form of incapacity the SABC chose to employ to
justify the dismissal of Geldenhuys, reference must be made to item 10 (1) of
Schedule 8. The item provides that if an employee is temporarily unable to
work, in these circumstances, the employer should investigate the extent of
the incapacity. If the employee is likely to be absent for a time that is
unreasonably long in the circumstances, the employer should investigate all
unreasonably long in the circumstances, the employer should investigate all
the possible alternatives short of dismissal. In considering alternatives short of
dismissal, an employer might consider; (a) the nature of the job; (b) the period
of absence; (c) the seriousness of the illness; (d) the possibility of securing a
temporary replacement of the ill employee.
13
What does consider alternatives short of dismissal mean?
[26] Properly considered, one of the default position to elect when an employer is
faced with unreasonably long absence is dismissal. This is consistent with the
common law contractual position – faced with a breach, the aggrieved party
may elect to cancel the agreement . Where an employer is directed to a
situation of considering alternatives short of dismissal, it means that an
employer must demonstrate through evidence that dismissal is a measure of
last resort or appropriate. In a misconduct situation, item 7 (b) (iv) of Schedule
8 requires a determination of whether dismissal was an appropriate sanction
for the contravention of the rule or standard. To my mind, consideration of
alternatives is akin to showing the appropriateness of a dismissal for the
incapacity.
[27] Item 10 (1) employs the phrase, ‘ the employer should investigate all’ . This
suggest that it is peremptory for an employer to investigate. Thus, an
employer must provide evidence that dismis sal is a measure of last resort or
appropriate. The same situation arise in a dismissal based on operational
requirements.
6 There must be evidence and not unsupported allegations that
all alternatives were investigated and not only some. Accordingly , in my view,
the phrase means that an employer like the SABC need to demonstrate that
dismissal for the incapacity – absence for an unreasonably long time – is a
measure of last resort or appropriate. Failure to demonstrate that suggests
that a dismissal is without a fair reason and substantively unfair.
Case law on persistent and intermittent absence from duty – a form of incapacity.
6 Oosthuizen v Telkom SA Ltd (2007) 28 ILJ 2531 (LAC), where the LAC stated: “[8] In my view an
employer has an obligation not to dismiss an employee for operational requirements if that employer
has work which such an employee can perform either without additional training or minimal training.
This is because that is a measure that can be employed to avoid the dismissal and the employer has
an obligation to take appropriate measures to avoid an employee’s dismissal for operational
requirements…In such a case the dismissal is a dismissal that could have been avoided. A dismissal
that could have been avoided but was not avoided is a dismissal without a fair reason. ” (Own
emphasis)
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[28] Mr July persisted with an argument that the authorities have it that an
employer is entitled to dismiss an employee who is persistently and
intermittently absent from wok. A brief survey of the case law is imperative for
the purposes of this judgment.
[29] In NUM and another v Samancor Ltd (Tubatse Ferrochrome) and others
7, the
Supreme Court of Appeal (SCA), per Nugent JA, stated the law as follows:
“[12] …While ordinary principles of contract permit a contracting party to
terminate the contract if the other party is unable to perform that is not
the end of the matter in case of employment. The question that still
remains in such cases is whether it was fair in the circumstances for
the employer to exercise that election.
[30] To my mind the fairness alluded to by the SCA relates also to the question
whether dismissal is a measure of last resort or not. Nugent JA accepted the
following reasoning of the commissioner.
“[12] …Another consideration that he took account of – and it was clearly
decisive of his decision – was that there was ‘no evidence that [Mr
Maloma] was occupying such a key position in the company that
necessitated his dismissal after ten days of absence’. He added that
he had not been persuaded that the employment relationship had
become intolerable. In those circumstances I cannot see that the error
that he made was material to the outcome. His reasoning shows that
he would have reached the same conclusion however the dismissal
was categorized. Least of all does it follow from his error that the
award was so unreasonable that it fell to be set aside,”
[31] In AECI Explosives Ltd v Mambalo8, the Labour Appeal Court (LAC) accepted
that an employer is entitled to dismiss for incapacity to perform a job where
the incapacity was due to persistent absence from work due to genuine ill -
health. With regard to the test for substantive fairness, the LAC approved the
7 (2011) 32 ILJ 1618 (SCA).
8 [1995] 9 BLLR 1 (LAC).
15
test that was suggested by Tibbutt J9. Such a test is (a) can an employer fairly
be expected to continue the employment relation bearing in mind the (i)
interest of the employer; (ii) the interest of the employee; and (iii) the equities
of the case. With regard to the equities of the case, the relevant factors are
inter alia; (a) the nature of the incapacity; (b) the cause of the incapacity; (c)
the likelihood of recovery; (d) improvement or recovery likelihood; (e) the
period of absence and its effect on the employer’s operations; (f) the effect of
the employee’s disability on other employees; (g) employee’s work record;
and (h) employee’s length of service.
[32] In General Motors SA (Pty) Ltd v NUM
10, it was affirmed that dismissal is in
principle permissible in a case of habitual absenteeism, even if it is for
medical reasons. The Court found that the arbitrator’s failure or refusal to
recognise a category of dismissal that permits an employer to dismiss an
employee for persistent or habitual intermittent absence on account of ill -
health constituted a reviewable error of law. The Court in no uncertain terms
confirmed the principle that it was permissible in law for an employer to
dismiss an employee on account of excessive intermittent absence on
account of ill -health. The Court further confirmed that such relates to
incapacity as opposed to misconduct
11.
[33] In Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and others 12, the SCA
stated that an employer is not expected to tolerate an employee’s prolonged
absence from work for incapacity due to ill -health. It further stated that, the
prolonged absence may, if it is fair in the circumstances, allow an employer to
exercise an election to end the employment relationship.
9 In Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 15 ILJ 304 (LAC).
10 (2018) 39 ILJ 1316 (LC).
11 La grange J in Atlantis Foundries (Pty) Ltd v NUMSA and others C867/2017 (4 June 2018) stated
that: “This case affirms the principle that frequent absenteeism for illness is a justifiable reason for
absenteeism and that the cause for the incapacity and likelihood of improvement are factors to be
considered in determining substantive fairness of the dismissal”.
12 (2014) 35 ILJ 406 (SCA).
16
[34] In Parexel International (Pty) Ltd v Chakane and others 13, the LAC accepted
the principle enunciated in Mambalo and accepted in Mmoledi . Additionally,
the Court stated that an employer was not required to hold the employee’s
position open for an employee.
[35] In summary, a survey of the above authorities suggest s that on application of
the principles of the common law of contract blended with the fairness and
equity principles, persistent and intermittent absence constitutes a category of
incapacity. That being so, an arbitrator ought to accept as a matter of law that
an employer is entitled to dismiss an employee if such an employee has been
intermittently absent for a prolonged period.
[36] Once it is established that the incapacity takes or took a form of persistent
absence, the provisions of item 10 (1) of Schedule 8 must be engaged in
determining the fairness of a dismissal justified by that form of incapacity. In
order to deal with substantive fairness, the test suggested by Tibbutt J must
be applied. Some of the equity factors suggested by Tibbutt J has been
incorporated in item 10 (1) of Schedule 8. Those factors are to be taken into
account when alternatives are considered. Item 10 (1) is couched in futuristic
and speculative terms. It states that ‘if the employee is likely to be absent for a
time that is unreasonably long in the circumstances ’. The item does not
suggest what ought to happen when the absence is historical. In other words,
would an employer be entitled to employ historical absence due to ill -health in
order to justify the dismissal? The LAC in Parexel per Savage AJA had the
following to say:
“[20] It is self-evident that whether an employee is willing and able to work
and when she may be in a position to do so are material consideration
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 dismissal
exists…”
unreasonably long period of time and whether alternatives to dismissal
exists…”
13 [2019] 11 BLLR 1245 (LAC).
17
[37] In casu, there can be no dispute that a period of absence involved herein was
in the circumstances of this case unreasonably long. That being the case, it
was incumbent on the SABC to investigate all the possible alternatives short
of dismissal. To my mind, as indicated above, this simply entails that
dismissal should be a measure of last resort. There is clear and uncontested
evidence that Geldenhuys was willing and able to work when she returned on
3 September 2018. From 3 September 2018 up to and including December
2018, there was no evidence of unwillingness or inability to work. In fact,
according to Geldenhuys, she was dismissed because she stood up against
the GCEO. Of course this was inadmissible evidence given the allegation she
made in the referral forms – her dismissal related to capacity and not some
form of discrimination and or harassment. Withal, i n Parexel, the Court stated
the following:
“[20] The employee’s extended absence from work was not explained by
way of properly detailed medical report the different medical
certificates provided to the appellant did not explain why the extended
absence from work had been necessary or why her continued
absence was justified. On her own version, the employee was unable
to return to work and was unable to indicate when she will be able to
do so.”
[38] In casu, Geldenhuys testified in clear terms that her prolonged absence was
due to ill -health. The SABC did not take issue with that and continued not to
take issue with that when the current application was argued. To be exact, Mr
July submitted that the SABC accepted the justification for her absence as
being ill-health. It was never doubted that for the period of her absence she
was indisposed. She testified in no uncertain terms that when she returned,
she was in a position to work and she was not in any form , manner or shape
incapacitated. Indeed this assertion was never disputed by the SABC. The
incapacitated. Indeed this assertion was never disputed by the SABC. The
issue of her dismissal on 18 December 2018, descended like manna from
heaven. Perhaps the SABC should have made an election to terminate in the
midst of the undisputed prolonged absence.
18
[39] Savage AJA continued to say:
“[21] … The clear evidence was that the employee was incapable of
returning to work and the employee accepted as much.”
[40] Unlike the employee in Parexel , Geldenhuys was capable to return and she
did return on 3 September 2018. The employee in Parexel was absent for
nine months. Geldenhuys was absent for a period of about three months or
so. During her absence a temporary replacement was secured. Above all, the
equities suggested by Tibbutt J confirms that dismissal was not an
appropriate sanction. SABC ought to have considered other alternatives short
of dismissal.
[41] The strange feature of this case is that after being absent for three months or
so, Geldenhuys continued with her work after the investigation meeting of 8
October 2018 up to and including 18 December 2018 when she was
dismissed for the past incapacity. Based on the minutes signed by Mxakwe on
17 October 2018, the following was the parting shot of the investigation
meeting held on 8 October 2018:
“MM14 then closed off the discussion by saying that he has made his points
and TG15 has made hers. He will be looking into all the facts and comments
that formed part of the hearing and provide his findings.
TG finally stated that she was not incapacitated and not mentally disturbed
and that she had a lot to contribute to the organisation.
[42] It is observed that nowhere does he mention that alternatives short of
dismissal will be investigated. Such investigation was key and ought to have
been communicated to Geldenhuys in clear terms, particularly after her
representative stated the following during the hearing:
14 Denotes Mr Madoda Mxakwe.
15 Denotes Ms Theresa Geldenhuys.
19
“SP16 … He said there was no recorded evidence that she has missed work
since her return from 17 September 2018. She has been back at work and
has performed. Her health has also been restored and she can continue to
work productively...”
[43] It was only at arbitration that Mxakwe exposed the fact that for a period of
about two months, the SABC was looking for alternatives. At arbitration he
testified that:
“MR MXAKWE: We were looking at alternative options within the
organisation, considering the seniority of the role, and the
impact it was having on the execution of the duties. The
idea was to look at a role that would be more suitable to her
continued absence from the office. The Group Executive HR
was looking at other alternatives within the organisation…
MR MXAKWE: The HR head was helping us with this process, to see what
alternatives, which would not have the same impact as the
Group Executive for Governance would have. Unfortunately,
there were not, and that is the reason why there was a
delay.”
[44] This process is undertaken in the circumstances where Geldenhuys stated in
no uncertain terms that she was not incapacitated. It is perplexing to note that
Geldenhuys was not involved in this “ wild goose chase” – looking for
alternatives for a capacitated employee. Regard being had to the parting note
of the meeting of 8 October 2018, it does not beggar belief to conclude that
the above testimony was an afterthought to attempt compliance with the
provisions of item 10 of Schedule 8.
The arbitration award of Myhill
[45] Inasmuch as arbi trators are entitled to render detailed arbitration awards,
regurgitation of submissions by parties does not serve a useful purpose other
16 Denotes Mr S Paradza.
20
than to elongate the arbitration award. The arbitration award comprises of 49
pages. This is an unnecessarily long arbitration award. In terms of section 138
(7) (a) of the LRA, a commissioner is obligated to issue an arbitration award
with brief reasons. Thus, it is axiomatic that long and detailed arbitration
awards are not anticipated. It remains important for an arbitrator to briefly
reason the award in order not to leave a Court of review guessing what the
justifications of the findings reached are. Regur gitation of witnesses’
testimonies is actually not required, particularly where a proper transcript is
kept. In about 32 pages, Myhill somewhat provided a transcript of the
testimony of the witnesses. In the Court’s view this was unnecessary. I take
this opportunity to sternly warn arbitrators that a reviewing judge is not
necessarily interested in the arbitrator's verbose writing style, but only the
reasons for the decision he or she reaches. Long arbitration awards tend to
obscure the issues for the reviewing judges, particularly when s earching for
the arbitrator’s reasons to justify the conclusions reached. It probably may be
so that commissioners are remunerated based on the longitude of the
arbitration awards, however, unnecessarily prolonged arbitration awards does
not assist the reviewing judge.
[46] In assessing the evidence, again the submissions made by the parties were
repeated. The only place where this Court is able to discern the reasons why
he found that the dismissal was substantively unfair was in paragraph 146 of
the arbitration award, where he stated that:
“146 The applicant (Geldenhuys) testified that when she returned to duty on
03 September 2018, she was fit and able to perform all her duties.
She had a lot of work to catch up. This was due to the AGE:GA not
performing the duties during the time the applicant was on sick leave.
The respondent did not dispute this testimony of the applicant. On this
The respondent did not dispute this testimony of the applicant. On this
point alone the respondent’s case should fail because proving that the
applicant (Geldenhuys) was indeed incapacitated is an inherent
substantive requirement of any incapacity dismissal.17
17 This finding commands itself to the leg of dismissal not being a measure of last resort or its
appropriateness for the incapacity.
21
[47] Regard being had to the principles enunciated above, it is perspicuous that
Myhill missed the point by a proverbial mile with regard to a valid reason to
dismiss (the other leg of substantive fairness) . The applicant lamented that
Myhill ignored the relevant evidence. Regard been had to the above finding,
the lament is justified. Mr Mxakwe testified at length about the impact the
prolonged absence of Geldenhuys had on the operations of the SABC as well
as the contractual obligations of Geldenhuys. Myhill completely ignored the
intermittent prolonged absence of Geldenhuys. Because Geldenhuys was fit
and able to perform from 03 September 2018 that does not discount the
admitted prolonged intermittent absence, which equates incapacity . As
correctly found in General Motors, a failure to recognise this as a category of
incapacity is a reviewable error of law.
[48] With regard to procedural fairness , again, with respect , Myhill was found
wanting. The procedural challenge mounted by Geldenhuys was that Mxakwe
was a referee and a player at the same time. When it comes to procedural
fairness, an employee is bound by the challenge raised in the referral
documents. It is this challenge that an employer must contend with to prove
procedural fairness. Often times, it is not uncommon for employees not to
challenge procedural fairness in general terms where some form of a hearing
has happened. In an instance where some form of a hearing has happened,
as it was the case in this matter on 8 October 2018, employees tend to mount
a specific challenge, as Geldenhuys did in this matter. Under those
circumstances, it is irregular for an arbitrator to straddle into issues of
procedural irregularities not brought for decision. Doing so will be to deny the
employer a fair hearing. An employer must meet a case alleged in the referral
forms regarding procedure. Procedural fairness covers a broad spectrum of
issues. It is for that reason that an employee must be specific in a challenge.
issues. It is for that reason that an employee must be specific in a challenge.
Once specified a commissioner is not at large to throw a dice, as it were, in
order to find a procedural flaw. This becomes the case even in instances
where an employee during his or her testimony alludes to some procedural
defect. In outlining the case of Geldenhuys at the commencement of
22
arbitration, there was no suggestion that any other procedural defects other
than the one exposed in the referral form would taint the procedural fairness
of her dismissal.
[49] At paragraph 164 of the arbitration award, Myhill, after dealing with various
submissions made on behalf of Geldenhuys reached a conclusion that the
SABC failed to prove that the dismissal was effected in accordance with a fair
procedure. By reading the award, it is difficult to discern the basis upon which
the finding of procedural unfairness is predicated. It was however common
cause that on 8 October 2018, Geldenhuys was engaged on the issue of
intermittent prolonged absence. Myhill was alive to the testimony of Mxakwe
as recorded in the minutes of the incapacity hearing of 8 October 2018.
Mxakwe’s concerns were about Geldenhuys’ poor work attendance and lack
of productivity. Regard being had to the common cause evidence of an
engagement with Geldenhuys over her prolonged intermittent absence, a
finding that the dismissal is procedurally unfair is not one that a reasonable
decision maker may reach.
[50] During argument, Ms Steenkamp persisted with the issue of Geldenhuys
being denied legal representation during the investigation meeting of 8
October 2018. This was not the basis upon which Geldenhuys impugned the
procedural fairness . That notwithstanding, Myhill concluded that Mxakwe’s
refusal to consider the request for legal representation resulted in the entire
incapacity investigation process being procedurally unfair. This finding falters
on two bases. In the first instance, it is factually incorrect to suggest that
Mxakwe did not consider the request. On 1 October 2018, Geldenhuys was
notified of the hearing. On 5 October 2018, her attorneys of record intimated
that they are in the process of drafting an application for legal representation
which was to be served on the SABC before 14:00 on 8 October 2018. On 7
October 2018, Mxakwe decided that legal representation will not be allowed.
October 2018, Mxakwe decided that legal representation will not be allowed.
Geldenhuys’ attorneys of record challenged Mxakwe that he decided on the
legal representation issue without having had sight of the formal application.
On 9 October 2018, Mxakwe made it clear that the decision not to allow legal
23
representation was not only premised on the reasons arti culated in the email
response, but it was also premised on the reasons provided after
consideration of Geldenhuys’ affidavit in support of the formal application.
[51] In the second instance, Geldenhuys did not have a right to legal
representation
18. On the day in question one Mr S Paradza, a fellow
employee assisted Geldenhuys. The notice of 1 October 2018, explicitly
stated that Geldenhuys has a right to be represented by a fellow employee
within the SABC. Regard being had to the ILO Conventions and
recommendations, article 7 of the Convention envisages an opportunity to
defend oneself, which as explained envisages a dialogue and reflection.
Placing heavy reliance on MEC: Department of Finance, Economic Affairs
and Tourism, Northern Province v Mahumani
19, Ms Steenkamp strenuously
argued that not considering the legal representation request renders the
dismissal procedurally unfair, thereby supporting the findings of Myhill.
[52] In my view, the reach of Mahumani is misunderstood. In the first instance, the
case involved a review of the failure to exercise discretion. The case is not
authority for the proposition that failure to exercise discretion to allow legal
representation per se amounts to procedural unfairness. Patel AJA, writing for
the majority stated the following:
“[13] It follows that, if, on a conspectus of all the circumstances it would be
unfair not to allow legal representation the provisions of clause 7.3 (e)
may in terms of clause 28 be departed from . The presiding officer
erred in holding that he had no discretion to allow such departure. The
court a quo, therefore, correctly reviewed his decision and set it
aside.”
[53] The veritable issue in Mahumani was lack of exercise of discretion to allow
departure from the provisions of a collective agreement, which on its reading
18 Netherburn Engineering CC t/a Netherburn Ceramics v Mudau and Others (2009) 30 ILJ 269
18 Netherburn Engineering CC t/a Netherburn Ceramics v Mudau and Others (2009) 30 ILJ 269
(LAC). Item 10 (2) of schedule 8 specifically states that an employee should be assisted by a trade
union representative or fellow employee.
19 (2004) 25 ILJ 2311 (SCA).
24
did not allow legal representation. In casu , Mxakwe exercised discretion and
did not find reason to depart from the SABC processes of only allowing
representation by a fellow employee. There is no evidence that the provisions
of the SABC Codes were referenced at the arbitration proceedings. It has not
been suggested that Mxakwe was faced with the similar provisions of clause
7.3 (e) of the collective agreement involved in Mahumani . Most importantly
the SCA interpreted clause 2.8 of the collective agreement as allowing
departure from the provisions of clause 7.3 (e) of the collective agreement,
contrary to the view held by Wallis AJ, as he then was , in Mosena and others
v The Premier Northern Province and others.
20
[54] There was no suggestion in this matter that Mxakwe took a view that a
specific clause in the SABC Codes did not allow him to depart from the
Codes. By all account, the Mahumani judgment is distinguishable. I again
reiterate that failure to exercise discretion per se does not morph into
procedural unfairness. On this, I am fortified by the decision taken by the SCA
at the end. It held that:
“[15] It will be for the presiding officer to apply his mind to the need for legal
representation after considering the circumstances of the case. The
matter will therefore of necessity have to be referred to the presiding
officer for him to exercise his discretion.”
[55] Returning to the facts of this case, if a finding was ever made that Mxakwe
failed to exercise discretion, which finding would have been at odds with the
objective evidence, such would not translate into any procedural unfairness.
Besides, arbitration proceedings are proceedings de novo aimed at
determining the fairness of a dismissal. It is not the duty of an arbitrator to
review the decision of the employer. It cannot be said that a commissioner is
empowered to enquire into the exercise of discretions by an employer.
Assuming that the reach of Mahumani extends to reviewing the exercise of
Assuming that the reach of Mahumani extends to reviewing the exercise of
discretion in search of procedural unfairness, a commissioner would use the
20 Case No 1401/2000 an unreported judgment of the Labour Court.
25
similar approach where a review of an exercise of discretion is involved,
namely; presence of capriciousness, mala fides and application of wrong
principles21. There is no evidence of capriciousness, mala fides and or
application of wrong principles. Therefore, the discretion exercised by
Mxakwe was not interferable.
The grounds of review considered.
[56] Regard being had to the above stated legal principles, it must be so that
Myhill failed to appreciate that SABC is by law entitled to justify dismissal
through the undisputed prolonged absence. All he was required to do and did
not do was to determine the fairness of the dismissal on the reasons of
incapacity as advanced by the SABC. Indeed, he ignored legal principles
enunciated by binding authorities . However, substantive fairness comprise of
two legs. The first, in relation to this matter is whether Geldenhuys was
incapacitated or not? In answering this question, Myhill only focussed on the
future; namely after 3 September 2018 and ignored the past undisputed
absence. He seems to have placed reliance on MTN Service Provider (Pty)
Ltd v Matji NO
22 where the learned Acting Justice Ngalwana concluded that
an employee’s lengthy and persistent absence from work due to ill -health is,
in itself, insufficient to justify dismissal for incapacity. MTN was overturned on
appeal. Besides, General Motors was the latest available authority, which is
clearly at odds with MTN . On application of the stare decisis principle,
General Motors bound Myhill. When the past intermittent prolonged absence
of Geldenhuys is taken into account, as the authorities suggest it, a valid
reason to dismiss emerges. During that time, incapacity existed.
[57] The second leg is whether alternatives short of dismissal were considered. In
other words , was dismissal a measure of last resort, and or an appropriate
sanction to be meted out for the past intermittent absence of Geldenhuys .
sanction to be meted out for the past intermittent absence of Geldenhuys .
Regard being had to the binding authority of Parexel as discussed above and
21 Kemp t/a Centralmed v Rawlins (2009) 11 BLLR 1027 (LAC) para 3-23.
22 (2007) 28 ILJ 2279 (LC).
26
the equities suggested by Tibbutt J, dismissing Geldenhuys due to the
historical persistent absence was not appropriate. Other alternatives short of
dismissal should have been investigated. Failure to do so rendered the
dismissal of Geldenhuys to be substantively unfair.
[58] With regard to the issue of compensation, I do not agree that there was any
excess of power as alleged by the SABC. Awarding a just and equitable
compensation involves an exercise of discretion. As held in Kemp t/a
Centralmed v Rawlins
23 a review Court must be loath to interfere with the
exercise of discretion. Excess of power is an incident of the rule of law. Myhill
is empowered by the LRA to order compensation equivalent to 12 months’
salary. The compensation award of 8 months falls within the permitted period.
Having used the remainder of the period of the fixed term of the contract of
employment does not suggest that he awarded damages as submitted by Mr
July. Owing to the fact that Geldenhuys ought not to have been dismissed,
awarding her 8 months compensation was just and equitable. The judgment
of the LAC in ARB Electrical Wholesalers (Pty) Ltd v Hibbert
24 remains
instructive when it comes to determination of compensation25.
What then?
[59] Although Myhill committed errors of law in respect of the first leg of
substantive fairness, his finding that the dismissal of Geldenhuys is
substantively unfair remains one that falls within the band of reasonableness,
regard being had to the second leg of substantive fairness
26. In other words,
the outcome that the dismissal of Geldenhuys is substantively unfair is
capable of justification. It is a decision that a reasonable decision maker
would reach. The errors of law pointed out in this judgment does not vitiate
23 [2009] 11 BLLR 1027 (LAC).
24 [2015] 11 BLLR 1081 (LAC)
25 Followed by the Labour Court in SAPO Ltd v Soman and others (JR1368/12) dated 25 November
2015.
2015.
26 Van Niekerk J in General Motors stated that ’Given that this Court is required to determine whether
the result of the proceedings under review can stand having regard to the evidence notwithstanding
the error or misdirection by the arbitrator, I intend to consider briefly whether the arbitrator’s findings
on substantive fairness is capable of being upheld.’
27
the outcome reached. The outcome remains one that a reasonable decision
maker may reach 27. There was no evidence, like in General Motors case to
suggest that the absence will continue and there will be no marked
improvement in the health of Geldenhuys. The SABC led no medical
evidence, which would have suggested that Geldenhuys would continue to be
excessively absent from work.
[60] However same cannot be said with regard to the finding that the dismissal is
procedurally unfair. That finding is not capable of justification for reasons set
out in this judgment. The investigation meeting of 8 October 2018 constitute a
dialogue which enabled the SABC and Geldenhuys to reflect. The issue of
persistent absence was common cause. The fact that Mxakwe chaired the
investigations does not suggest that he was a player and a referee at the
same time. The rules of natural justice may , when appropriate and necessary
be depar ted from . Mxakwe was the s uperior of Geldenhuys, the fact that
Geldenhuys w as absent for a prolonged period did not require any
determination, it was common cause. As the superior of Geldenhuys, Mxakwe
was qualified to enquire into the extent of the prolonged absence which
undoubtedly had impacted on the performance of an organisation he heads.
In any event clause 10 (1) commands that the purpose of investigation is to
investigate the extent of the incapacity as opposed to passing judgment as to
whether there was or there was no incapacity. What Mxakwe was required to
do in the investigations was to firstly establish the extent of the incapacity and
afford Geldenhuys an opportunity to state her case in response as assisted by
a fellow employee. Accordingly, the dismissal was effected in accordance with
a fair procedure.
Conclusion
27 In General Motors it was said: ‘The evidence also suggested that the fourth respondent presented
with nine different diagnoses in the course of the sick leave cycle in question, that these illness were
persistent and that there was little prospect of any marked improvement in his ability to attend work on
a regular basis… The evidence suggests that the fifth respondent would more than likely continue to
be absent from work excessively, and that he lacked capacity to ensure regular attendance at work.’
28
[61] In summary, even if Myhill committed an error of law his findings on
substantive fairness falls within the bands of reasonableness. He did not
exceed his powers with regard to an award of compensation. His findings that
the dismissal is procedurally unfair is not capable of justification.
[62] In the result the following order is made:
Order
1. The arbitration award issued by Commissioner Eric Myhill dated 29
October 2019 under case number GAJB455 -19 is to a limited extent –
(procedural unfairness finding) reviewed and set aside. The findings
on substantive unfairness and compensation are upheld.
2. To that limited extent , the arbitration award is replaced with an order
that the dismissal of Geldenhuys is procedurally fair.
3. There is no order as to costs.
_______________________
G. N. Moshoana
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr S July of Werksmans Attorneys, Sandton
For the Third Respondent: Ms L Steenkamp
Instructed by: Welman and Bloem Inc, Pretoria.