J5140/99-JduP
Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J5140/99
2001-10-09
In the matter between
RECKITT & COLMAN SA (PTY) LIMITED Applicant
and
CCMA AND OTHERS Respondents
__________________________________________________________
J U D G M E N T
___________________________________________________________
LANDMAN, J: Mr Marcus James was employed by Reckitt & Colman South Africa.
He was dismissed by his employer on the grounds of incapacity. He was
constantly ill and was obliged to take sick leave. It appears that the applicant had
a history of absenteeism. He had been issued with disciplinary warnings in the
past, on that and other accounts.
He took sick leave in 1994. He was away for a period of 106 days, between
1994 and 1996. In 1997 he was away for 33 days. Between 25 October 1998 and
16 February 1999 he was away for 18 days.
His employer discovered that his absenteeism problem was due to alcohol
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abuse. Mr James received treatment for this on an in-patient basis during the
course of 1997. Mr James also received counselling on various occasions. He was
notified in writing during the course of 1998 that the excessive sick leave he was
taking had brought about an intolerable situation. If this continued his
employment would be terminated. There was a temporary improvement, but then
Mr James relapsed into his old ways.
The employer attempted to accommodate Mr James over an extended
period of time. His employer did all that they could to assist him to improve the
situation. Nothing availed. The employer terminated the services of Mr James on
16 February 1999.
The dispute was referred to the CCMA for arbitration. It came before a
commissioner who heard the evidence and rendered an award in favour of Mr
James. In terms of the award the employer was ordered to pay him R21 600. The
principal reason for coming to this conclusion, according to the award, is that it
was clear that Mr James was dismissed on the basis of incapacity arising from ill-
health. The commissioner concluded that the employer did not follow the
guidelines set out in items 8(10) and 8(11) of Schedule 8 to the Labour Relations
Act, 66 of 1995. The commissioner appears to have come to the conclusion that
the company did not investigate the possible alternatives short of dismissal, and
whether or not Mr James was capable of performing the work.
In the light of all the evidence that was before the commissioner the
commissioner had come to the conclusion that the employer had tried to do all
that was possible in the circumstances. Although this case was viewed by the
commissioner as one relating to incapacity, it could just as well have been a case
of misconduct. Insofar as it was a case of misconduct the commissioner should
have, on the material before him, concluded that the necessary steps were taken
J5140/99-JduP
and the final written warning was issued in respect of his alcohol abuse.
If, as the commissioner did, one confines oneself to incapacity as a ground
for dismissal, then it is clear that the dismissal was the last resort. The employer
had done all that it could. The commissioner's award is not rational in regard to
the material that served before him. The award falls to be reviewed and set aside.
I make the following order:
1. The award made by the second respondent on 29 November 1999 is reviewed and
set aside.
2. The award is replaced with an order that the dismissal of Mr James was fair.
3. The first respondent is ordered to pay the costs of the application.
___________________
A A Landman
Judge of the Labour Court of South Africa
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