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THE LABOUR COURT OF SOUTH AFRICA

(HELD AT DURBAN)

                                                                                                                              Not reportable

CASE NO: D 2158/2018

In the matter between:

CT WILCOCKS                                                                                                       Applicant

and

M KHAWULA N.O.                                                                                                First Respondent

SA LOCAL GOVERNMENT

BARGAINING COUNCIL                                                                               Second Respondent

UGU DISTRICT MUNICIPALITY                                                                       Third Respondent

Date of hearing: 17 February 2022

Date of judgment: 01 March 2022

JUDGMENT

VAN NIEKERK J

Introduction

[1]      The applicant seeks to review and set aside an arbitration award issued by the first respondent (the arbitrator) on 4 October 2018. In her award, the arbitrator held that the applicant’s dismissal was substantively and procedurally fair.

[2]       The material facts are reflected in the award under review. The applicant was employed by the third respondent on 1 August 1996 and at the time of his dismissal was engaged as the manager: grants and expenditure. On 9 February 2016, the applicant was suspended for the purposes of an investigation to be conducted by the third respondent. In the course of his suspension, he consulted a psychologist, a Ms Louise Kruger. On 14 September 2016 the applicant was notified that his suspension had been uplifted and he was instructed to return to work on 19 September 2016. On 19 September 2016, the applicant applied for sick leave, an application that was supported by sick notes issued by Ms Kruger. On 24 October 2016, the third respondent’s chief financial officer addressed an internal memorandum to the applicant in which the applicant was notified that the third respondent regarded his absence from work due to illness is excessive and that it intended to obtain information from the applicant’s Dr relating to his illness. The applicant was further notified that he would be invited to an incapacity hearing in accordance with the applicable procedure. The third respondent duly obtained Ms Kruger’s report reflecting her opinion on the applicant’s condition as at 25 October 2016. The incapacity hearing was convened on 4 November 2016. On 3 November 2016, the applicant requested a postponement of the hearing on the basis that he was unable to obtain reports from the various doctors within the timeframe allowed and at the same time, the applicant requested copies of the documentation on which the third respondent intended to rely. The request for a postponement was refused and the hearing proceeded on 4 November 2016. The hearing was chaired by a Ms Mbambo who ruled that the applicant is dismissed on the grounds of incapacity due to ill-health. On 8 November 2016, the applicant was advised of his dismissal, to take effect from the next day.

[3]       The applicant disputed the fairness of his dismissal and the matter was referred ultimately to arbitration. At the arbitration hearing, the third respondent led the evidence only of Ms Mbambo. The applicant testified on his own behalf. In the award, the arbitrator notes that it is common cause that after the applicant had been booked off sick for a period of 90 days the sick notes submitted by the applicant on 15 August 2016 indicated that the applicant’s illness was permanent in a chronic nature. Dr Kruger stated that the applicant was not fit to return to the workplace and recommended that he be medically ported on an urgent basis.

[4]       The arbitrator comes to the following conclusion:

76.      In view thereof I agree with Mbamb that the employer has discretionary powers to either dismiss or follow medically boarding procedure where applicable. In this case, the chairperson found that dismissal was the appropriate decision (sic). One of the reasons being that the applicants incapacity was not work-related.

77.     In my view, if Dr Kruger’s report is anything to go by, it was practically impossible for the applicant to recover from depression if he had to return to the respondent’s workplace, since Kruger’s prognosis and/or opinion was that the workplace was the traumatic location, therefore the best place for applicant to find alternative employment was in the open market.

78.     Therefore I agree with Mbambo that dismissal was an appropriate decision.

79.     Six months after the dismissal of the applicant, Kruger issued another letter declaring applicant had to go back to work. Applicant also testified that he was not permanently incapacitated and Kruger’s report was incorrect.

80.     I do not agree with the applicant in this regard. I am of the view that an inescapable inference to draw in the circumstances, is that applicant wish to escape from work permanently by way of medical boarding, and had changed his tune only when that option was close to him by the incapacity hearing chairperson, who instead found dismissal an appropriate sanction to impose…

85.     During the incapacity hearing, applicant did not make any further request the chairperson to submit further medical documents as was the reason to request postponement. The hearing continued without any hindrances, otherwise evidence would have been lead (sic) in this regard. In view thereof the refusal of the postponement did not have any negative impact on the case of the applicant.

86.     It is my finding that the applicant was indeed incapacitated, therefore applicant was dismissed for a fair reason.

[5]       The applicant contends that the award is reviewable because the arbitrator misconceived the enquiry before him, failed to conduct a hearing de novo in conflict with his duty to do so, and thus arrived at a conclusion to which a reasonable decision-maker could not come on the available material.

[6]       The test to be applied in review applications is clear. This court may intervene if and only if the applicant establishes that the decision to which the arbitrator came was so unreasonable that no reasonable decision-maker could come to it. In a matter such as the present, where the applicant relies on what are contended to be reviewable irregularities in the assessment of the evidence, the court must be cautious to ensure that the line between an appeal and a review is not crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC)), the Labour Appeal Court noted that a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process related irregularity sufficient to set aside the award. The court cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgment). Specifically, the questions for a review court to ask are whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that he or she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with substantial merits of the dispute and whether the decision is one that another decision maker could reasonably have arrived at based on the evidence (see paragraph 20). In short, when an arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21).

[7]      The function of the arbitrator was to determine, in a hearing de novo, whether the applicant’s dismissal had been substantively and procedurally fair. The statutory Code of Good Practice requires an employer to conduct an investigation into all possible alternatives short of dismissal (see item 10 (1)). Further, particular consideration must be given to employees who are incapacitated by work-related illness, in which case there is a more onerous obligation on the employer to accommodate the employee’s incapacity (Item (4)).

[8]      The third respondent has developed its own procedure to deal with incapacity due to ill-health, the introduction to which is simply plagiarised from the Code of Good Practice. For present purposes, the procedure that the third respondent was obliged to follow in terms of its own procedure is to conduct an investigation, and where the extent of the incapacity is significant, to convene a meeting prior to which the employer may seek permission to request a report from a doctor on the extent of illness, the possibility of recovery, whether the illness is temporary or permanent as well as the doctor’s recommendation. On receipt of the doctor’s report, the procedure obliges the third respondent to seek a second opinion from its doctor (the wording reads ‘…The Municipality shall seek a second opinion from their doctor’… The procedure further provides that the incapacity meeting shall be held ‘…for the purpose of establishing the means for accommodating the employee where possible or to dismiss the employee for incapacity and follow medical boarding procedure - where applicable.’

 [9]      In the case of disputes concerning dismissal for incapacity, the line between substantive and procedural fairness tends to become blurred, if only because most of the substantive obligations imposed by the Code are discharged in the context of the necessary inquiry into the existence of any incapacity and its impact on continued employment. It is not in dispute that the third respondent convened an enquiry, the purpose of which was to ascertain the viability of the applicant’s continued employment. Mbambo gave evidence at the arbitration hearing that there was a report by Dr Kruger that served before the enquiry reflecting that the applicant was unfit for work and permanently incapacitated, that the applicant did not dispute the report, that he did not dispute that there was no alternative position available for him and that he had accepted that he should be medically boarded.  The award reflects that Mbambo considered this sufficient to establish the basis on which the applicant should be dismissed, and that the further medical reports contemplated by the third respondent’s incapacity procedure were not necessary.

[10]     The applicant testified that he had sought to be medically boarded and that his request for a postponement of the investigation was to enable him to obtain further medical reports. The applicant clearly anticipated an outcome in terms of which he was to be boarded. Mbambo’s evidence discloses her opinion that the third respondent’s policy contained typographical error in that the policy ought to read: ‘…for the purpose of establishing the means for accommodating the employee where possible or to dismiss the employee for incapacity or [delete ‘and’] follow medical boarding procedure - where applicable.’ At paragraph 75 of the award, the arbitrator accepted this interpretation and concluded that the third respondent had ‘discretionary powers to either dismiss or follow medically boarding procedure with applicable’.

[11]     This conclusion flies in the face of the principle that in a case of ill-health incapacity, dismissal is a measure of last resort even more so where, despite the arbitrator’s conclusion to the contrary, as in this case, the incapacity is work-related. Where there is the prospect of medical boarding (put differently, a retirement in terms of the rules of a benefit fund establish precisely to cater for medical incapacity), this is an obvious alternative to dismissal that ought to be fully explored. While each case must be dealt with on its own merits, in the present instance, the consequence of Mbambo’s failure to explore that option and the arbitrator’s endorsement of the approach that she adopted has been to deny the applicant the prospects of determining his eligibility for a benefit for which the third respondent is specifically insured. The decision to dismiss the applicant had the consequence that he was no longer an employee of the third respondent and therefore denied consideration for his eligibility for any benefit that may have accrued to him in terms of the rules of the scheme.

[12]     The medical boarding procedure represents an obvious potential alternative to a dismissal, one that is required to be fully investigated before any decision to dismiss is taken. The pre-arbitration minute records that the rules of the Natal Joint Municipal Pensions Fund make provision for retirement on the grounds of ill-health, an obvious alternative to a dismissal. Why that option was not explored is inexplicable. To the extent that Mbambo and the arbitrator considered that the third respondent’s procedure conferred a discretion either to dismiss or to invoke the ill-heath retirement option, that is not what the procedure provides, nor is that interpretation consistent with what is required by the Code of Good Practice which, I wish to emphasise, considers dismissal a measure of last resort.  What the third respondent did was to dismiss the applicant, in breach of its own procedure, and thereby deny him the potential benefit, available only to employees, that might otherwise have agreed in terms of the rules of the pension fund. Put another way, the applicant was at the receiving end of a double whammy.

[13]     It follows that by finding that the third respondent’s policy conferred a discretion on the third respondent to deny the applicant any consideration for his eligibility for benefits consequent on his incapacity, the arbitrator misdirected himself in relation to the evidence before him. The consequence of this misdirection is that his award falls outside of a band of decisions to which a reasonable decision-maker could come on the available material. That being so, the award stands to be reviewed and set aside.

[14]     Given the basis on which I have considered the arbitrator’s award to be reviewable, it is not necessary for me to consider the further submissions made on the applicant’s behalf, and in particular the submission that the arbitrator failed to appreciate the nature of the enquiry by conducting what amounted to a review of the third respondent’s decision rather than a determination de novo of the fairness of the applicant’s dismissal.

[15]     The court has a broad discretion to remit the matter for rehearing, or to substitute the arbitrator’s award. Where, as in the present case, the full record is available to the court and the court is in as good a position as any arbitrator to determine the dispute, the latter option is ordinarily preferred. The court has before it all of the evidence and is in a position to substitute the award with a ruling to the effect that the applicant’s dismissal was unfair. The applicant seeks to be reinstated, and that is the primary remedy to which he is entitled. There is no medical bar to the applicant’s reinstatement - he testified at the arbitration hearing that he was able to return to work; he submitted a letter from Dr Kruger recording that following a period of intensive treatment, the applicant appears to have really established sound equilibrium and that he is fit to resume his normal occupational duties.

[16]     Finally, the court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness. The applicant has succeeded in overturning the arbitrator’s award, and while in this court costs do not ordinarily follow the result, there is no reason to deny him his costs. The applicant is an individual who has no doubt incurred considerable expenses in order to prosecute his claim and to the extent that an order for costs on a party and party basis will serve to compensate him, the requirements of the law and fairness are best served by such an order.

  I make the following order:

1.   The arbitration award issued by the first respondent under case number KPD091717 on 4 October 2018 is reviewed and set aside.

2.    The award is substituted by the following:

                                      i.    The applicant’s dismissal is substantively and procedurally unfair.

                                     ii.    The applicant is reinstated into the third respondent’s employ with effect from the date of his dismissal.

3.    The third respondent is to pay the costs of these proceedings.

André van Niekerk

Judge of the Labour Court

REPRESENTATION

For the applicant: Adv K Allen, instructed by Henwood Britter & Caney

For the third respondent: Mr M Maeso, Shepstone Wylie Inc

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