Harmony Gold Mining Company Limited v Commission for Conciliation Mediation and Arbitration and Others (JR2081/18) [2022] ZALCJHB 321 (17 November 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

CASE No: JR2081/18

In the matter between:

HARMONY GOLD MINING COMPANY LIMITED

Applicant

And

COMMISSION FOR CONCILIATION MEDIATION

First Respondent

AND ARBITRATION

COMMISSIONER JOHNNY MATHEBULA N.O.

Second Respondent

MABOSHA SASA

Third Respondent

Heard: 26 October 2022

Delivered: 17 November 2022.

Summary: Review application – employee dismissed for absenteeism – employer questioning the validity of a sick note submitted by the employee by alleging that it had been tempered with – employee had history of being sick – employer failing to approach the doctor who issued the sick note for a report on the employee’s medical status during the period of absence from work – dismissal found to be unfair by the Commissioner – reasonableness of award

JUDGMENT

MKWIBISO AJ

INTRODUCTION:

[1]. In this matter, the applicant (“the employer”) seeks to have an arbitration award by the second respondent (“the Commissioner”) set aside on review.

[2]. The Commissioner found that the dismissal of the third respondent (“the employee”) was substantively unfair and awarded the employee 10 months’ remuneration as compensation, which amounted to R80 451.00.

[3]. The employee opposed the review application.

[4]. The issue is whether the Commissioner’s award was unreasonable.

RELEVANT FACTS:

[5]. The employee was employed by the employer on 13 March 2007. He occupied the position of Mine Assistant and his function was to work underground in the employer’s mine. He was dismissed on 17 April 2018, after having served the employer for approximately 11 years. His gross salary at the date of his dismissal was R8 045.00.

[6]. On 24 January 2017, the employee was absent from work without permission. He was issued a written warning regarding this offence on 01 February 2017.

[7]. On 15 May 2017, the employee was again absent from work without permission. He was issued a final written warning regarding this offence on 16 May 2017.

[8]. From August 2017 until January 2018, the employee was ill, became hospitalised and was absent from work. He had problems with his legs, and he struggled to walk.

[9]. On 09 February 2018, the employee had a meeting with a Case Manager employed by the employer, and he was represented by his union at that meeting. The Case Manager completed a detailed consultation form wherein she made handwritten notes under the headings “consultation notes”, “active problems”, “plan of action”. The handwritten notes of the Case Manager are largely illegible and he or she was not called to testify at the arbitration. Under the heading “consultation notes”, the Case Manager, inter alia, recorded “client has been off from work since August 2017”. The employee signed this form by stating the following:

“I, M.G. Sasa, hereby declare that I was counselled on the above findings … relating to my absenteeism history. I also hereby undertake to limit my absenteeism as far is realistically possible as I understand the impact this might have on my employment”.

[10]. It is not clear what the said absenteeism findings are, as the Case Manager’s notes are illegible and no evidence was presented regarding those findings.

[11]. No medical report was submitted by the employer regarding the employee’s long absence from work between August 2017 and January 2018. The employee was not charged for being absent during this period. It seems it was common cause between the parties that the employee was ill and had been hospitalised during this period.

[12]. The employee was absent from work without authorisation, from 21 February 2018 to 07 March 2018. Upon his return to work, he was informed that he had been dismissed and he was advised of his right to lodge an appeal against his dismissal. His return to work was not prompted by any notification of a dismissal or any request for him to return to work.

[13]. He duly lodged the appeal, and the appeal was initially scheduled for 14 March 2018.

[14]. On 14 March 2018, the employee attended the appeal hearing, but the hearing was postponed as he had to be taken to hospital by ambulance. He was released from hospital on 04 April 2018 and the appeal hearing proceeded on 16 April 2018. At the hearing of the appeal, the employee relied on medical certificates to prove that he was sick on the days when he was absent from work in February and March 2018.

[15]. It became common cause that on 21 and 22 February 2018, the employee was at the employer’s mine clinic and those days were accounted for. The employee produced medical certificates confirming that he was sick during the period of his absence from work. The employer took issue with a medical certificate that said the employee was sick from 23 February 2018 to 29 February 2018, because February 2018 did not have 29 days and the medical certificate in question appeared to have been tempered with. As a result, the Chairperson of the appeal hearing rejected the medical certificate and made the following note:

“The outcome of your Appeal Hearing was unsuccessful for the following reasons:

1/3/2018 – no proof … of sick leave.

23/2/2018 – 24/2/2018 – see the changes to the attached sick note. No valid reason was provided for the changes to the above sick note”.

[16]. Unsatisfied with his dismissal, the employee referred an unfair dismissal dispute to the first respondent (“the CCMA”) and the dispute was allocated to the Commissioner to resolve by way of arbitration.

[17]. During the arbitration, the employer was represented by Mr Thabang Molahlehi who advised the Commissioner that his designation was Hostel Manager. Mr Molahlehi also deposed to the employer’s affidavits in the review application before this Court. The employee represented himself, meaning he was unrepresented. Due to this state of affairs, the Commissioner indicated that he would assist the employee during the process and there was no objection from the employer’s representative.

[18]. The Commissioner allowed opening statements to be made before witnesses testified under oath.

[19]. In his opening address, Mr Molahlehi indicated that the employee had been absent from 21 February to 07 March 2018. The employer had tried to phone the employee but his phone rang unanswered. The employee was dismissed on 07 March 2018. The employee reappeared on 12 March 2018 and was given an opportunity to appeal against his dismissal. At the appeal, the employee relied upon a medical certificate that was tempered with and a medical certificate that did not cover the date of 01 March 2018.

[20]. In his opening address, the employee stated that he became ill from 2017. He was then hospitalised and he returned to work with a medical certificate covering the dates of 23 to 29 February 2018. He was advised by the employer to go back to the hospital to secure an amended medical certificate to reflect the dates of 23 February to 01 March 2018. The doctor duly amended the medical certificate and he submitted the amended medical certificate to the employer. He was then informed that the figures “23” and “29” in respect of the respective dates of 23 February and 29 February 2018 had been tempered and the medical certificate was not accepted. In a nutshell, the employee confirmed that his case was that he was dismissed while he was sick.

[21]. Mr Molahlehi, the employer’s representative, testified that before the employee was dismissed an ER practitioner who was handling the issue telephoned the employee on his cell phones to determine his whereabouts, but the employee did not answer the phone calls. On 12 March 2018, the employee then arrived at work without having been prompted by the employer. He was then issued with a notice of an appeal hearing, scheduled for 14 March 2018. The case did not sit on 14 March 2018. It ultimately proceeded on 16 April 2018 when the Chairperson of the appeal hearing indicated that there was no medical certificate covering the date of 01 March 2018. Further, the medical certificate of 23 March 2018 said the employee must report for duty on 29 February 2018 and was tempered with. The employee brought another medical certificate after the appeal hearing, which was issued on 23 April 2018. This new medical certificate did not cover 01 March 2018 because it said the employee would be fit to resume his

duties on 01 March 2018. The employee had previously been issued with a written warning and a final written warning for absenteeism. At the time when he was absent for the day that was not covered, being 01 March 2018, he was on a final written warning. In terms of the employer’s disciplinary code, absenteeism was addressed by counselling for a first offence, a warning for a second offence, a final written warning for a third offence, and dismissal for a fourth offence. The employee’s absenteeism was referred to a Case Manager, which led to the employee undertaking in writing to limit his absenteeism as far as realistically possible.

[22]. When the Commissioner afforded the employee the opportunity to cross-examine Mr Molahlehi, and in an attempt to assist the employee, the Commissioner asked the employee whether there was anything that he was disputing. The employee responded by saying there was something that he was disputing. As a result, the employee’s cross-examination became directed towards the part of Mr Molahlehi’s evidence that he was disputing.

[23]. The employee, when cross-examining Mr Molahlehi, began by putting the version that the internal appeal hearing did not proceed on 14 March 2018 because he fell ill and he had to be referred to the mine hospital belonging to the employer. He was then transported from the mine hospital to Sybrand hospital by ambulance. Mr Molahlehi did not dispute this version, but simply averred that ultimately the employee’s story was heard.

[24]. The employee further denied that he had been phoned on his cell phone during his period of absence. He, thus, denied the hearsay evidence of Mr Molahlehi that an ER Practitioner had phoned him. In response, Mr Molahlehi again responded by saying even if that were the case, ultimately the employee’s case was heard.

[25]. The employee furthermore denied that he had ever signed any warning letter. He put to Mr Molahlehi that his dismissal related to a tempered medical certificate and not a final written warning.

[26]. When the employee had concluded his cross-examination, the Commissioner asked him to tell his story.

[27]. The employee testified about his ill-health and hospitalisation. He said in late 2017 he became extremely ill and was taken to the mine hospital. The doctor then referred him to physio in Randfontein, to determine whether he could walk as he was struggling to walk. The doctor in Randfontein informed him that he would no longer be able to work due to the bad state of his legs and he was no longer fit to be a Mine Assistant. He was then referred back to the mine hospital. He was out of action until January 2018.

[28]. The employee further testified that on 09 February 2018 he met with his union and the employer’s Case Manager and he showed them his swollen legs. They said he was faking his illness and he was sent back to work. However, his legs were so swollen that he could hardly work and he went to hospital where he was issued with a medical certificate booking him off from 23 February 2018 until 29 February 2018. Upon his return to work, he was informed that he had been removed from the system and he was asked whether he was going to appeal.

[29]. He confirmed that on 14 March 2018 the employer had witnessed him being fetched by an ambulance because of his ill-health, which led to the postponement of his internal appeal hearing. He confirmed that he was ill and had been hospitalised on the days when he was absent from work during February and March 2018.

[30]. The employee’s evidence, set out above, was largely undisputed when Mr Molahlehi cross-examined him. When Mr Molahlehi put to him that none of the medical certificates covered the date of 01 March 2018, he responded by staying he was under the doctor’s care on that date.

[31]. The employer did not produce any records from its mine hospital, despite the undisputed evidence of the employee that he had attended the mine hospital. The employer also did not call the Case Manager who had attended the employee on 09 February 2018, nor was the employee’s line manager called to testify.

[32]. Having heard the evidence, the Commissioner made the following findings:

“14. The one thing that the respondent did not dispute, was that the applicant was a sickly person. At no stage did he argue absence related to any other form of irresponsibility. …

…

17. The factual matrix of this case is that the applicant is a sickly individual and was, at some point, on 2018-04-04, when he had gone to attend a hearing, fell ill and was actually taken to hospital by an ambulance. The respondent can attest to this … The respondent’s case is that he was dismissed because he could not account for his absence on 2018-03.01.

20. … It is my view that the respondent ought to have dealt with the applicant in terms of Mine medical procedures, rather than through dismissal for misconduct. The applicant clearly has a history of being ill. It is so unjust, that he be dismissed for allegedly failing to account for one day. The respondent ought to have considered his doctor’s note that he submitted after the appeal, taking into account that the applicant was given the opportunity to get a sick note that covered the 1st of March” (my emphasis).

[33]. Based on this reasoning, the Commissioner found the dismissal to have been substantively unfair and awarded 10 months’ remuneration as compensation to the employee. The Commissioner gave reasons to motivate the amount of 10 months’ salary as compensation.

[34]. Unsatisfied with the arbitration outcome, the employer filed an application before this Court, for an order reviewing and setting aside the award, and replacing it with an order that the dismissal was substantively fair. In its founding affidavit, it raised two grounds of review. First, the Commissioner should have found that the employee had been issued with a final written warning and that the employee’s signature on the final written warning was the same signature that appeared on other documents that the employee had signed. Once it was established that the employee was on a final written warning, it followed that dismissal was appropriate. Secondly, the employer contended that the Commissioner committed a gross irregularity by making findings on the employee’s medical incapacity despite this being a misconduct case, and then proceeding to award 10 months’ remuneration as compensation based on the findings of medical incapacity.

[35]. In its supplementary founding affidavit, the employer raised three grounds of review. First, the Commissioner should have found that the employee was on a final written warning and that dismissal was the appropriate sanction. Second, the Commissioner should not have made findings regarding the employee’s health and medical capacity in the context of an arbitration concerning misconduct, and there was no proper evidentiary basis to inform the Commissioner’s finding that the employee was incapacitated. Third, the Commissioner failed to consider that none of the medical certificates submitted by the employee covered the date of 01 March 2018, which meant he was absent without permission on that date and dismissal was an appropriate sanction in light of the employee being on a final written warning.

[36]. The employee filed his answering affidavit on 13 January 2020, despite the rule 7A(8) notice and supplementary founding affidavit being filed in May 2019. The employer objected to the late filing of the answering affidavit.

ANALYSIS:

[37]. Importantly, this is a review and not an appeal. The issue is whether the Commissioner’s outcome is one that may be arrived at by a reasonable Commissioner, based on the evidence that was presented by the parties at the arbitration hearing. If no reasonable decision-maker would reach the Commissioner’s outcome, then that outcome must be reviewed and set aside as unreasonable.[1]

[38]. If I were to disregard the employee’s answering affidavit, I would still have to consider the relevant parts of the record that served before the Commissioner when determining the reasonableness of the Commissioner’s decision.

[39]. The employee’s explanation for the delay in filing his answering affidavit is contained in his answering affidavit. He states that upon receiving the review application, which was served on him by registered post, he approached the Labour Court and was advised by the officials of the Court to go home and wait for a hearing date. When the hearing date did not arrive, he approached Legal Aid South Africa who failed to assist him and also approached his attorney who came to Court and discovered that the matter was set down on the unopposed roll. His attorney then assisted him to file a notice of opposition and the answering affidavit. From this explanation, it does not seem the employee received the supplementary founding affidavit and the rule 7A(8) notice informing him to file his answering affidavit within ten days. The explanation is not specific on dates when certain events took place and is not adequate. However, even without the answering affidavit the employee has good prospects of success and it would be futile to reject the answering affidavit. I, thus, exercise my discretion to grant condonation for the late filing of the answering affidavit, to ensure a full hearing on the merits in the interests of justice.

[40]. It is trite that an applicant in a review application is limited to the grounds of review set out in the review application. In Tao Ying Metal Industries,[2] the Constitutional Court expressed this principle in the following terms:

“[67] Subject to what is stated in the following paragraph, the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. It may not on its own raise issues which were not raised by the party who seeks to review an arbitral award. There is much to be said for the submission by the workers that it is not for the reviewing court to tell a litigant what it should complain about. In particular, the LRA specifies the grounds upon which arbitral awards may be reviewed. A party who seeks to review an arbitral award is bound by the grounds contained in the review application” (my emphasis).

[41]. The employer’s grounds of review do not challenge the quantum of compensation granted to the employee by the Commissioner. In other words, the employer does not contend that the amount of compensation granted by the Commissioner was excessive or unreasonable. This means that I cannot interfere with the quantum of compensation, having found the Commissioner’s decision regarding substantive fairness to be reasonable.

[42]. The employer’s grounds of review, properly construed, do not take issue with the admissibility of the medical certificates that were submitted by the employee. Had the employer argued that the Commissioner should have disregarded the medical certificates as inadmissible hearsay evidence, then it would have become necessary to apply the principles set out by the Courts regarding the admissibility of medical certificates.[3] The fact that the employee was a layperson who, on the record, does not seem to have been advised of the hearsay nature of the medical certificates would have had to be considered in determining whether or not to remit the matter to the CCMA for a fresh hearing. All these issues are irrelevant in light of the pleaded grounds of review.

[43]. The employer’s grounds of review also do not take issue with the Commissioner having accepted evidence by the employee that was not put to its witness, concerning the employee being ill and hospitalised from end of 2017 to January 2018, being ill and hospitalised again on the day of the internal appeal hearing of 14 March 2018, and suffering from swollen legs. As the Commissioner correctly found, the fact that the employee was sickly was not in dispute.

[44]. In Cape Nature,[4] a medical certificate was submitted at the disciplinary hearing of Ms Dyer and the Chairperson of the hearing rejected the certificate,

inter alia, because it was backdated and issued only after Ms Dyer had been charged. The Chairperson had requested the Initiator of the hearing

to request a report of assessments done on Ms Dyer, from the doctor who had issued the certificate. Moreover, Ms Dyer’s employer

had appointed a psychiatrist to independently evaluate her, which resulted in a report that confirmed her mental illness. The Commissioner had found that “the evidence of Dyer’s peculiar behaviour in March to May 2017, was sufficient for the board to have been aware that there could have been a medical explanation for her conduct and it should have requested a formal diagnosis from Dr Saayman or appointed their own expert to examine her”. The Court dismissed the review application by Ms Dyer’s employer to the extent that it challenged the finding of substantive

unfairness of the dismissal, thus confirming the reasonableness of the award in favour of Ms Dyer regarding the issue of substantive

unfairness.

[45]. By parity of reasoning, in the current matter the employer was in possession of evidence of the employee’s illness. The employee had visited the employer’s own mine hospital and there would be medical records of those visits. Had those records been inconsistent with the employee’s case of being unable to work due to swollen legs, the employer would have produced them. The employee further had to be hospitalized on the day of his internal appeal hearing due to his illness, which was witnessed by the employer. This evidence of the employee’s illness should have prompted the employer to investigate the employee’s illness before rejecting the medical certificates he submitted and dismissing him for absenteeism despite his claim of being ill during the period of his absence. An inquiry into the employee’s ill-health or capacity to work was inevitable due to the nature of his explanation for his absence from work and the Commissioner’s sentiments in this regard were, in my view, reasonable.

[46]. The Commissioner’s conclusion that the employee was not guilty of misconduct is in line with the undisputed evidence of the employee’s illness and the balance of probabilities. Whether the employee had been issued a final written warning is irrelevant, in light of the employee’s innocence as per the Commissioner’s reasonable findings.

[47]. The threshold of a review is high and should not be easily attained due to the intention to make arbitration awards final and binding. In Booi[5] the Constitutional Court recently emphasised this point in the following terms:

“[50] Before I proceed to the appropriate remedy, I wish to devote a moment to a salient point that ought to be taken away from this judgment. Labour litigation, as envisaged by the LRA, is distinct from any other civil litigation. This is made abundantly clear in the Preamble to the LRA, and through the specialised system and institutions created by that Act. It has also been affirmed by this Court recently. It follows that labour disputes must not be perceived as ordinary civil disputes by the courts that adjudicate them. Our law is clear: labour dispute resolution must be expedient, simple, accessible and cost-effective. It is with this in mind that the LRA carves out unique litigious pathways for disputes that arise pertaining to employment relationships. What the Legislature had in mind when carving out these pathways is evident from the explanatory memorandum to the Draft Labour Relations Bill, to which I once again refer:

“In order for this alternative process to be credible and legitimate and to achieve the purposes of the legislation, it must be cheap, accessible, quick and informal. These are the characteristics of arbitration, whose benefits over court adjudication have been shown in a number of international studies. The absence of an appeal from the arbitrator’s award speeds up the process and frees it from the legalism that accompanies appeal proceedings. It is tempting to provide for appeals because dismissal is a very serious matter, particularly given the lack of prospects of alternative employment in the present economic climate. However, this temptation must be resisted as appeals lead to records, lengthy proceedings, lawyers, legalism, inordinate delays and high costs. Appeals have a negative impact on reinstatement as a remedy, they undermine the basic purpose of the legislation and they make the system too expensive for individuals and small business.”

[51] It is pertinent that the Legislature deliberately provided for the mechanism of a review, as opposed to an appeal, for arbitration awards made in respect of labour disputes. As demonstrated above, the intention behind this choice was to prevent labour dispute resolution procedures from becoming costly and time-consuming and, thereby, inadvertently favouring the party that wields greater resources and power. It was a pragmatic decision that serves the ends of justice and protects the rights enshrined in section 23 of the Constitution. Courts undermine these imperatives by readily treating reviews as appeals. Arbitration awards are intended to be final and binding. They are not to be treated as a mere box-ticking exercise, or the first step in a drawn out process that can be exploited by the party who is able to “out-litigate” the other. It is no secret that the Labour Courts are backlogged and that this impedes their ability to adjudicate labour disputes in the swift manner contemplated by the LRA. This problem is, without a doubt, exacerbated when a court fails to distinguish between a genuine review and an appeal disguised as a review” (my emphasis).

[48]. Overall, the employer has failed to meet the threshold of review and the Commissioner’s decision in this matter should be left undisturbed.

COSTS:

[49]. The general practice of this Court is to not award costs. However, in this matter there are exceptional circumstances that warrant a costs order against the employer. The employee, despite being treated in a grossly unfair manner after serving the employer for more than 11 years, did not seek reinstatement but sought compensation. The Commissioner awarded him 10 months’ remuneration as compensation. He has had to incur legal costs that would significantly eat into his compensation award if a costs order is not made in his favour, in circumstances whereby the employer was aware of the high threshold of a review and this matter should never have seen the light of day.

[50]. In the result, I make the following order.

Order

1. The review application is dismissed.

2. The applicant is to pay the third respondent’s costs.

VG Mkwibiso AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant

: Mr J. Olivier of Webber Wentzel

For the Third Respondent : Adv M. Sadike

Instructed by Lekhesa Attorneys

[1] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC), paragraph [110].

[2] CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC), paragraph [67].

[3] See: Mgobhozi v Naidoo NO and Others [2006] 3 BLLR 242 (LAC), paragraphs [25], [26] and [30]; Minya v South African Post Office Ltd and Others (2021) 42 ILJ 141 (LC), paragraph [24].

[4] Western Cape Nature Conservative Board t/a Cape Nature v CCMA and Others (2022) 43 ILJ 1394 (LC).

[5] Booi v Amathole District Municipality (2022) 43 ILJ 91 (CC); [2022] 1 BLLR 1 (CC), paragraphs [50] – [51]. See also: Glencore Operations South Africa (Pty) Ltd (Western Chrome Mines) v NUMSA obo Motsepe and Others (JR 1828/2019) [2022] ZALCJHB 42 (11 March 2022), paragraphs [13] and [18].