Sneller Verbatim/hvr
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J901/98
2001-04-30
In the matter between
OZART DU TOIT Applicant
and
FREE STATE CONSOLIDATED GOLD MINE
(OPERATIONS) LTD Respondent
________________________________________________________________
J U D G M E N T
Delivered on 5 May 2001
________________________________________________________________
REVELAS J:
1.The applicant had been in the employ of the respondent since 1974 when his
services were terminated in February 1998. He was then employed as a
technical official. He was transferred to President Steyn Mine during
1997.
2.The applicant claimed that his dismissal was not for a fair reason due to
the respondent's operational requirements as alleged by the latter and
neither did the respondent comply with the provisions of section 189 of
Labour Relations Act 66 of 1995, (“the Act”).
3.Conciliation failed to resolve the dismissal dispute which the applicant
had referred to the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”). The matter was then referred to trial.
4.It is common cause that during August 1996 the applicant became ill as a
result of a brain tumour and was not permitted to work for two months.
The applicant thereafter received further medical treatment for a period
of approximately six months, while working.
5.When commencing his duties after the two month period, he was only
permitted to perform light duties and he worked a oneday shift. In
other words, he could not work the night shift or more than the one
daily shift. At the time he worked in the respondent's President Steyn
Gold Mine, in the smelting house.
6.A further important fact which is common cause between the parties, is that
the President Steyn Mine, due to the general decline in the mining
industry was in the process of closing down some of its operations and,
as witnesses in this matter put it, the mine was in "shutdown mode".
7.It is also common cause that the union of which the applicant was a member,
had negotiated a collective agreement with the respondent with regard to
the retrenchment procedures that were to be followed as a result of the
closing down of the operations at President Steyn and other mines of the
respondent.
8.The applicant testified that on 14 December 1997 he was summoned to the
offices of the mine superintendent, Mr Peter Mooney, to discuss his
leave which was about to commence on 20 December, a few days later. Mr
Mooney had informed him that on his return from leave, he would be
required to work at the respondent’s, President Brand Mine. The
applicant said he was happy with this arrangement since President Brand
mine had a long term operational "life expectancy". He even phoned his
wife to tell her that he had a job the following year. At the time
employees were apparently in doubt as to how the shut down mode would
impact on their job security.
9.Mr Van Biljon, a union official of the applicant’s union, gave evidence
that he was also present at the meeting and that he represented the
applicant and that he and Mr Mooney explained to the applicant that he
could be transferred to President Brand Mine provided he was medically
fit to work more than one day shifts. It was at this meeting that the
applicant had informed Mr Van Biljon that he had a problem, a medical
problem, and therefore could not work the day shift. Mr Van Biljon
testified that the applicant was advised to consider the matter during
his December holiday and to return with a medical certificate.
10.According to the pretrial minute and the evidence of Mr Van Biljon, a
further meeting was also held on 1 October 1997 where the applicant was
also urged to see a doctor and obtain the necessary medical certificate.
The applicant denies that this meeting on 1 October took place or that
Mr Van Biljon represented him at any stage including at the 14 October
meeting. The applicant did not dispute that Mr Van Biljon was present
at the meeting of 14 December 1997 initially in his evidence, but during
argument he denied that the latter was present. He never put to Mr Van
Biljon that he was absent at this particular meeting.
11.He also disputed Mr Van Biljon's version about the discussion that took
place on 14 October 1997. According to the applicant he went on holiday
looking forward to his new job and reported at President Steyn Mine on 2
February 1998. The applicant reported to the plant superintendent, Mr
Montero. The latter advised him to return to President Steyn Mine,
unable to provide him with an explanation as to why he could not
commence working.
12.The applicant attached a medical certificate (or doctor's note), dated 26
January 1998, to his pleadings. The applicant, according to this note,
went to see a neurosurgeon, Dr W J van Jaarsveld, on 26 January and was
evaluated by him. The neuro surgeon found that the applicant had
improved but should only perform: "bogrondse veilige werk" and if it
improved but should only perform: "bogrondse veilige werk" and if it
falls within his abilities, he may resume working shifts again.
13. The applicant testified that, on his return to the President Steyn Gold
Plant, after having been turned away by Mr Montero at the President
Brand Mine, the applicant said that Mr Errol Smith could also not
provide him with an explanation as to why he was sent back. Mr Smith
requested him to resume his duties in the smelt house (at President
Steyn Mine), which he duly did.
14.On 3 February 1998 the applicant was requested to attend a meeting at 11
o'clock in Mr Smith's office on the same day. It is common cause that
such a meeting was held. The meeting was attended by Mr Geldenhuys, Mr
Erasmus and Mr Smith of management. Mr Van Biljon, the applicant and
Mr Fouché, (an official of another union of whom the applicant is not a
member) was also present.
15.The applicant stated that he required Mr Fouch é's presence because he had
his suspicions about this meeting.
16.The applicant’s testimony is that at the meeting, he was simply informed
by Mr Smith that the respondent had no choice but to terminate his
services. He was also questioned about his medical condition but the
applicant was rather vague as to what was asked about, in this regard.
17.The applicant said that he had told the meeting that he was prepared to do
any work, including shifts. He was however unable to persuade management
to give him an alternative position. He added that the members of
management present at the meeting, did not want to see the doctor's note
even though he was prepared to give it to them.
18.He was, according to his pleadings, given 24 hours to decide on "the
particular issue". The applicant's evidence on this aspect, did not
explain what the "particular issue" was that he wanted to discuss with
his wife that evening.
19.The respondent called no witnesses from management. Only Mr Van Biljon of
the applicant's union testified on the respondent's behalf.
the applicant's union testified on the respondent's behalf.
20.According to his testimony about the meeting of 3 February, the applicant
was again offered the position at President Brand Mine at this meeting,
but the applicant persisted with the stance he had adopted at previous
meetings, namely that he was only prepared to work daily one shift.
21. During a break in that meeting, Mr Van Biljon advised the applicant that
if he could not work shifts and was not able to provide a certificate,
there will be no other alternative but to face retrenchment. This is
denied by the applicant. He also denied that there was ever an
adjournment of the meeting taken during the meeting.
22.Mr Van Biljon disputed that the applicant wanted to obtain an alternative
position or that he ever offered to work more than one daily shift. Mr
Van Biljon also disputed that the applicant wanted to hand a medical
certificate to the meeting. He said it was also explained by the
management to the applicant, that a certificate was required.
23.Mr van Biljon testified that the applicant was given an opportunity to
discuss with his wife whether he would take the position at the
President Brand Mine with shifts or accept a retrenchment package.
24.Faced with the two conflicting versions, I must make a credibility
finding.
25.None of the members of management who were present at the meeting of 3
February 1998 were called as witnesses. One witness' absence was due to
brain surgery that he underwent and Mr Montero no longer works for the
respondent. Mr Montero could either corroborate or confirm the
applicant's version about the events of 2 February 1998. He could
perhaps also cast light on the question why the applicant was sent back
to the President Brand Mine.
26.Mr Mooney, if called, could have confirmed or denied that Mr Van Biljon
was present at the meeting of 14 December 1997.
was present at the meeting of 14 December 1997.
27. I have to decide the matter on the evidence presented. Mr Van Biljon, the
union official at the time, represented employees who faced possible
retrenchment in terms of the collective agreement. The applicant was a
member of this union. Mr Van Biljon had no obvious reason to perjure
himself by placing himself at a meeting where the applicant's position
and his medical condition was discussed when this was not so. He
confirmed that the applicant was advised to use his holiday to decide
whether he wanted to accept the position at President Brand and the
applicant was advised to see a doctor and bring back a doctor's note to
the effect that he could not work shifts.
28.The applicant did in fact see a doctor on 26 January 1998, on his return
from holiday, just as he was advised to do.
29.It seems unlikely that Mr Van Biljon in the aforesaid circumstances, had
lied about his presence at the meeting. It is also hardly likely that
Mr Mooney of management, would have discussed alternative employment
with an employee, about to be retrenched, without somebody from the
employee's union being present, particularly seen against the background
of the collective agreement that was concluded.
30.An important question which remained unexplained, is why the applicant
went to see a neurosurgeon for an evaluation of his potential working
abilities if he was simply offered (and had accepted) the President
Brand position, without any questions being asked. On this version of
the applicant, a medical evaluation was not required by Mr Mooney. The
fact that he did obtain a note from the doctor tends to support Mr Van
Biljon's version that he was advised to do so and that Mr Van Biljon was
present at that meeting.
31.The note obtained on 26 January, does not specifically advise against the
applicant working shifts. This medical opinion envisages a situation
where the applicant would be able to work normal shifts in time.
where the applicant would be able to work normal shifts in time.
32.Of further significance is the fact that the applicant, having visited a
neurosurgeon on 26 January 1998 and obtaining a medical opinion, he
returned to the same neurosurgeon only a week later, on 2 February 1998.
This was incidently the same day he said he had reported at President
Brand Mine.
33.This fact was not pleaded and the second medical note was only produced by
the applicant during his evidence in chief. This is the note the
applicant said he wanted to give to management, (as I understand it) and
which they did not want to see. This medical note is for more specific
about shift work than the previous opinion the applicant had received a
week before. The note states (with reference to the applicant's
diabetes, a previous convulsion and his high blood pressure) that:
"Daar is dus meer as genoeg rede om te versoek dat die pasi ënt ( sic) nie
verdere skofte of nagwerk verrig nie."
34.The applicant gave evidence that he told management on the meeting of 3
February 1998, that despite his medical circumstances he would work all
the shifts at President Brand Mine which was required, but they would
not consider this proposal and did not consider giving him an
alternative employment position at President Brand Mine. This version
seems improbable in the light of the second medical note and its
contents. This note supports Mr van Biljon’s version that the applicant
was prepared to work only one day shifts at President Brand Mine.
35.As observed before, there was no proper explanation from the applicant
what he had to discuss with his wife on the night of 3 February. If he
was given no choice but retrenchment what was there to think about and
report back about on the next day?
36.The version of Mr Van Biljon is more likely. The applicant had to decide
whether he wanted the job at President Brand Mine with all shifts
required or whether he wanted to accept a retrenchment package. It is
required or whether he wanted to accept a retrenchment package. It is
common cause that he did in fact attend at the mine the following day to
sign for his retrenchment package.
37.It is undisputed that the President Gold Mine was in the process of
reducing its staff complement. The applicant's position at that mine
had become redundant and he was offered alternative employment which he
wanted on his terms, namely that he would work one day shifts which was
apparently not acceptable to the respondent and understandable in
circumstances where it was closing down its operations. At the time of
determination of his services, the applicant was already on light duty.
38.Mr Van Biljon did not really explain why he wanted the applicant to
produce the doctor’s note, because it appears that if the applicant was
unable to work shifts he would not be considered as suitable for the
alternative employment position.
39.I have also considered why the applicant obtained two certificates and
whether it was possible that management did in fact not want to see any
medical note because they could not accommodate a person who would only
work light duty when offered an alternative position. According to Mr
Van Biljon, no medical note was produced.
40.The respondent lead only one witness on this aspect. The respondent also
has an onus to discharge but in the circumstances, even if the employ
party has an onus, it does not mean that the applicant is entitled to
his relief, merely because the respondent did not provide enough
evidence on one particular aspect.
41.The applicant's version contained inherent improbabilities and it is
clear that he had lied about the question as to what he wanted to
consider overnight on 3 February 1998 and about the meeting of the 14 th
October 1997.
42.I found it strange that the applicant had obtained two medical opinions
which differ from each other. Even stranger, on the applicant’s
which differ from each other. Even stranger, on the applicant’s
version, the medical opinion which did not strictly forbid shift work,
he did not produced. It is also strange that the second note which
specifically forbade shift work is dated on the same day at which he
would report at President Brand Mine.
43.I therefore accept Mr Van Biljon’s version that the applicant did not
produce any medical certificate at the meeting.
44.In the circumstances, I find that the dismissal was for a fair reason and
even though members of the respondent's management did not testify as to
the procedure fairness, Mr Van Biljon's evidence should be accepted as
more probable than that of the applicant who gave a version of events
during the discussions and meetings which was not credible.
45.In the circumstances it cannot be said that the respondent did not
discharge its obligations in terms of section 189 of the Act.
46.In the circumstances the application is dismissed.
47.The applicant had put forward a version which departed from the truth on
several crucial aspects. He should therefore be liable for costs.
48.In the circumstances I make the following order.
1.The application is dismissed with costs.
_______________
E. Revelas.
The Applicant appeared in person.
On behalf of the Respondent: Adv MJ van As
Instructed by: Andrews, Podbielski & Grimsell Inc.