NEHAWU obo Matras v Commission for Conciliation, Mediation and Arbitration and Others (JR1970/17) [2021] ZALCJHB 285 (8 September 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JR1970/17

In the matter between:

NEHAWU obo DANIEL MATRAS Applicant

and

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION First

Respondent

COMMISSIONER MADELINE LOYSON N.O. Second Respondent

MEDICLINIC SA (PTY) LTD t/a MEDICLINIC

POTSCHEFSTROOM Third

Respondent

Heard: 15 January 2021

Delivered: 08 September 2021

JUDGMENT

LANCASTER AJ

Introduction

[1] This is an application brought by the Applicant in terms of section 145 of the Labour Relations Act (LRA)[1] to review and set aside the arbitration award issued by the Second Respondent (the Commissioner) acting under the auspices of the First Respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA) under case number NWKD2096-12 dated 221July 2017. The Third Respondent (Mediclinic) opposed the application.

Background to the litigation:

[2] The Applicant commenced his employment with Mediclinic on 01 December 2006 until his dismissal on 26 June 2012, for reasons of misconduct.

[3] The charge against the Applicant emanated from him being absent from work, purportedly due to illness, from 01 June 2012 until 03 June 2012, after being booked off by a general practitioner.

[4] It appears to be common cause that the Applicant was off on 4 June 2012 and was not required to work.

[5] Upon his return to work, the Applicant was charged by Mediclinic with the following charge:

"Very serious misconduct due to your dishonest behaviour in that you submitted a sick certificate to cover your absence for the period 01 June 2012 to 03 June 2012 at Mediclinic Potchefstroom. However, during this period you attended to private matters in the region of George."

[6] On the first day of his absence (being 31 May 2012), Applicant informed Mediclinic that he would not be able to attend to his shift due to illness. Shortly after he had done so, Applicant received an SMS message from his supervisor Sonja Rossouw (Rossouw) wherein she seemingly expressed her belief that the Applicant may have booked off sick to attend a wedding of a family member in George. Her suspicion seemed to have stemmed from a conversation the Applicant had previously had with Rossouw wherein the Applicant had discussed the possibility of taking leave to attend a wedding in George over the same period.

[7] As has already been recorded above, the Applicant was dismissed on 26 June 2012 following a disciplinary hearing. The hearing was chaired internally and is the focus of several allegations of unfairness by the Applicant.

[8] On 29 October 2012, the CCMA issued a ruling that the Applicant's dismissal was substantively and procedurally fair. The award was taken on review by the Applicant to this Court and the Honourable Justice Cele ordered on 26 October 2016 that the matter be remitted back to the CCMA for a de novo hearing before a different arbitrator.

[9] The matter subsequently came before Second Respondent ("the arbitrator'') who heard the dispute over a period of five days during May and July 2017. The Commissioner ultimately found that the Applicant's dismissal was both substantively and procedurally fair.

[10] It is this award that the Applicant seeks to review and set aside.

[11] In this Court the Applicant also prays that this Court consider substituting the award of the arbitrator with an order that the dismissal of the Applicant was substantively and procedurally unfair.

[12] I digress to mention that although the Applicant sought a substitution of the Commissioner's finding on procedural fairness, no grounds of review were preferred in relation to this prayer.

Grounds for review:

[13] The basis on which the Applicant challenged the Commissioner's award was primarily that:

1. The Commissioner committed a gross irregularity in her assessment of the evidence before her; and

2. The Commissioner failed to apply her mind to the evidence before her and because of her failure to do so, the decision reached was not one a reasonable decision-maker could have reached.

[14] In amplification of these grounds, the Applicant raised several complaints against the Commissioner's analyses of the evidence and her eventual findings.

[15] As I see it, the Applicant's complaint against the arbitrator's award is premised predominantly thereon that the Commissioner: (1) ignored that a medical certificate had been produced by the Applicant for his absence, which was not disputed, and in the absence of the Third Respondent calling the doctor who issued the sick note, could not be disputed, (2) that the Commissioner relied on circumstantial evidence, suppositions and her own assumptions in coming to her findings that the Applicant did in fact go to George and is therefore guilty of the charge against him and (3) had misrepresented that he was sick when he in fact wished to go to George for a wedding, which the Applicant was never charged with.

[16] I shall deal with these complaints in my analyses herein below.

The test for review:

[17] The test laid down in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[2] is a test for the substantive reasonable of the outcome or result of an arbitration award, which is an outcome-based enquiry[3], entailing a stringent test aimed at ensuring that arbitration awards are not lightly interfered with[4].

[18] In Bestel v Astral Operations Ltd and Others[5] the court stated as follows:

"It is important to emphasise, as is exemplified from Carephone, and Schwartz, supra, that the ultimate principle upon which a review is based is justification for the decision as opposed to it being correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is always

respected."

[19] For the Applicant to succeed with the review application, it must be established that the Commissioner's decision fell outside the band of reasonable decisions that she could have come to on all the material that was properly before her, including reasons not considered by the commissioner[6].

[20] It is the result of her award that must fall foul of this test and not necessarily the findings of fact and evidence that make up that finding unless those findings also render the result unreasonable.

Analysis:

[21] As recorded herein above, the Applicant broadly alleged that the Commissioner had acted irregularly and unreasonably in her analyses of the evidence before her.

[22] I understand the Applicant to allege that the Third Respondent could not dispute the sick note he submitted in support of his allegation that he was too sick to work.

[23] I therefore must consider whether the Commissioner's analyses of the evidence resulted in an award which was so unreasonable that no reasonable decision-maker could come to the same findings on the evidence presented to her.

The medical certificate as evidence

[24] Applicant alleged that the Third Respondent did not dispute that he was sick in its evidence and that the Commissioner had failed to properly weigh up this concession against the circumstantial and indirect evidence presented by the Third Respondent, that the Applicant had travelled to George for a wedding instead of convalescing at home.

[25] It follows, that should I find that the enquiry of the Commissioner had to stop with whether the Applicant's illness and the sick note were not disputed and should therefore have been accepted without any further enquiry, then the Applicant could not have been found to have been dishonest in submitting the sick note to cover his absence from work from 1 June 2012 to 3 June 2012.

[26] Accordingly, I understand this complaint against the arbitrator's finding to be central to the Applicant's application for review.

[27] Conversely, should I find that the Commissioner properly considered and found that the Third Respondent correctly did not accept the sick note submitted by the Applicant, her analyses of the evidence regarding the Applicant's dishonesty may very well not fall foul of being so unreasonable, that no reasonable Commissioner could come to the same finding.

[28] The Applicant seems to contend in this regard that the Third Respondent had no basis and/or reason to dispute that he was ill during the weekend of 1 June 2012 to 3 June 2012, given that he had submitted a medical certificate to cover this period of absence.

[29] In this regard he alleged that the Third Respondent had failed to call the medical practitioner who issued the sick note to him to dispute the recordal by the medical practitioner that he was too sick to work during this period.

[30] On a proper reading of the record, more specifically the evidence of Sonja Rossouw, relied on by the Applicant for these submissions, it is clear that the Third Respondent did in fact believe that the Applicant had dishonestly obtained and submitted a medical certificate to cover his absence, in circumstances where he was not ill. [7]

[31] Whilst Rossouw did not wish to go as far as to disparage the medical practitioner who issued the sick note, it is clear from her evidence that she believed the Applicant had dishonestly informed the medical practitioner that he was ill.

[32] She testified that her analyses of the email evidence and surrounding events, supported her belief that the Applicant had been dishonest in this regard. Her version was accepted by the Commissioner, who found that the Applicant's conduct in presenting the medical certificate as he did, practically amounted to misrepresentation.

[33] Whilst the Applicant seemed to have taken issue with the finding of misrepresentation, which the Applicant was not charged for (as the argument goes), the Commissioner's comment regarding misrepresentation was nothing more than her concluding that the Applicant had been dishonest, in my view, and does not amount to the Commissioner adding a charge of misrepresentation or her finding the Applicant guilty of something he was not charged for.

[34] Applicant further allegation that Respondent's failure to subpoena the doctor to prove that he was not ill and that he was therefore dishonest in submitting the medical certificate to the Third Respondent, was fatal to the case of the Third Respondent, and the failure to do so should have been dealt with definitively by the Commissioner. As such, he alleges, Third Respondent did not discharge the onus to prove that his dismissal was substantively fair and/or that he was dishonest.

[35] Whether or not a medical certificate must be accepted as matter of course, has in my view been settled by the Courts in matters such as Mgobhozi,[8] where the Labour Appeal Court found that medical certificates in fact constitutes hearsay evidence of a person's incapacity, which must be dealt with as such.

[36] The onus to substantiate the medical certificate and call the medical practitioner in question as a witness therefore rested on the Applicant and not the Third Respondent, albeit that the ultimate onus in the arbitration proceedings rested on the Respondent. The fact that the Applicant did not call the doctor therefore meant that the probative value of the medical certificate was reduced.

[37] The Third Respondent was within its rights to question the medical certificate considering the surrounding circumstances and the Commissioner therefore acted reasonably in weighing up the medical certificate against the remaining evidence presented by the parties before her.

[38] The Applicant's assertion that the Commissioner could not go further than accepting the medical certificate on face value, amounts to unnecessarily and incorrectly limiting the powers (and duties) by the Commissioner to analyse evidence that is presented to her.

[39] The Commissioner in fact had to weigh up the hearsay evidence of the medical certificate, the evidence of the Applicant and his witnesses regarding his illness, the evidence of the Third Respondent's witnesses on the events that unfolded and the body of documentary evidence that supported this evidence to discharge her duties as the arbitrator of the dispute.

[40] She seems to have done so in a logical and methodical fashion and in any event not in a manner which tainted her findings on this aspect to such an extent that it can be said that her conduct and or her ultimately findings are reviewable before this Court.

Arbitrator's reliance on circumstantial evidence and alleged assumptions

[41] The Applicant further and alongside the above allegation contends that the Commissioner relied on circumstantial evidence which means that she could not reasonably have come to her decision that the Applicant was dishonest or in fact went to George.

[42] It is clear from the evidence that the arbitrator was faced with two conflicting versions of evidence before her. In particular, it appears from the transcript of the arbitration proceedings, that the versions tendered by the witnesses of the Third Respondent and the witnesses of the Applicant, including the Applicant himself, differed in material respects. In fact, very few common cause issues arose from the evidence.

[43] The arbitrator therefore had to analyse the evidence to determine which version of the evidence was more probable to come to a finding on the merits. As I have already found herein above, this included evaluating the hearsay evidence of the Applicant (being the medical certificate).

[44] In her detailed arbitration award the arbitrator summarised each witnesses' tendered evidence before pointing out the aspects of the evidence which she believed was relevant, the evidence that appeared to be conflicting and the dealt with the demeanour of the witnesses in coming to her findings on the probabilities.

[45] As recorded in Clauses 55 and 56 of the CCMA Guidelines on Misconduct Arbitration[9], published by the CCMA in terms of Section 115(2)(g) of the Act and which enjoins an arbitrator to conduct arbitrations within the bounds of the guidelines, determines that in analysing the evidence presented to her, the Commissioner had to "weigh the evidence as a whole taking account of the following factors":

45.1 "The probabilities" This requires a formulation of the contending versions and a weighing up of those versions to determine which is more probable. The factors for that determination have to be identified and justified."

45.2 The reliability of the witnesses. This involves an assessment of the following:

45.2.1 The extent of the witness's first-hand knowledge of the events;

45.2.2 Any interest or bias the witness may have

45.2.3 Any contradictions and inconsistencies;

45.2.4 Corroboration by other witnesses;

45.2.5 The credibility of the witness, including demeanour."

[46] Although these requirements are taken up in a guideline, the Commissioner was enjoined to apply the guideline which is in any event consistent with how the Courts have consistently dealt with circumstantial evidence. In S v Reddy, amongst other judgments, the Appellate Division found that:[10]

"In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at 202-203, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such 'that they exclude every reasonable inference from them save the one sought to be drawn."

[47] In Gcaza the court once again considered the issue of circumstantial evidence:[11]

"I am satisfied that the trial court's approach to the evaluation of the evidence was correct. It considered the totality of the evidence and, in that process, weighed the evidence of the State's witnesses against that of the appellant. As appears above, the appellant's evidence was also riddled with contradictions..."

[48] From the Commissioner's in-detail analyses of the evidence it is clear that she considered all the evidence as a whole and was intimately aware of her duties as an arbitrator of the dispute and how she needed to approach the conflicting versions presented to her and the hearsay and circumstantial evidence that she was required to analyse to come to her ultimate findings.

[49] Even if her conclusions that it was obvious to her that the Applicant was dishonest and the only reasonable inference that could be drawn from the totality of the evidence is that the Applicant did in fact go to George (and consequently had been dishonest), were incorrect, it does not follow that her award is so unreasonable as to be reviewable before this Court.

[50] There does not appear to be any basis, in my view, to allege that the arbitrator did not properly apply her mind in coming to a decision, and/or that she did not properly weigh up or consider the nature of the evidence presented to her and the probative value of that evidence.

[51] In fact, quite the contrary is evident from her ultimate award.

[52] As the Applicant put forward no grounds for review in respect of the procedural unfairness of his dismissal, I have not considered that aspect of the arbitrator's award.

Conclusion

[53] Therefore, and based on what has been set out above, in particular the grounds of review raised by the Applicant and the totality of the proceedings before the arbitrator, I cannot conclude that any irregularity exists which would justify this Court reviewing and setting aside the Commissioner’s award.

[54] She clearly went to great lengths to thoroughly and efficiently consider all evidence presented to her, whether orally or documentary, and in a methodical and rational fashion applied the relevant legal principles in coming to her findings.

[55] Her reasons recorded in her award, for preferring the Respondent's version over that of the Applicant, whether correct or incorrect, are reasonable, and in any event not so unreasonable as to trigger this Court's interference.

[56] The review application of the Applicant must therefore fail.

[57] Insofar as costs of the application is concerned, the Applicant and the Respondent both prayed for costs.

[58] I have a discretion in terms of sections 162(1) and (2) of the Act insofar as costs are concerned and have considered that the dispute between the parties has a long and protracted history, with both parties clearly having continuing interest in their respective views in relation to the dismissal of the Applicant.

[59] In the premise I have decided to exercise my discretion against the granting of costs in favour of the Respondent.

[60] Accordingly, I make the following order:

1. The application for review is dismissed.

2. There is no order as to costs.

Lancaster AJ

Acting Judge of the Labour Court

[1] Act 66 of 1995 as amended.

[2] [2007] 12 BLLR 1097 (CC).

[3] Ellerines Holdings Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 28899 (LAC) at 2906H-I.

[4] Fidelity Cash Management Service v CCMA and Others [2008] 3 BLLR 197 (LAC) at para 100.

[5] [2011] 2 BLLR 129 (LAC).

[6] Fidelity Cash Management Service v CCMA and Others [2008] 3 BLLR 197 (LAC) at para 103.

[7] Pages 314 and 323 of the paginated record

[8] Mgobhozi v Naidoo NO & Others (2006) 27 ILJ 786 (LAC) at par 22. The sentiments of the Appeal Court in that matter were echoed by the Supreme Court of Appeal in Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 8 BLLR 699 (SCA).

[9] GN R224 in GG 38573 of 17 March 2015.

[10] S v Reddy & Others 1996 (2) SACR 1 (A) at 8C-D.

[11] Gcaza v S [2017] ZASCA at par 24.