IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Reportable CASE NO: 01412/19
In the matter between:

OKHAHLAMBA LOCAL MUNICIPALITY

and

BONGANI SOLOMON MABUYA R R D MANDIMUTSIRA N.O.
SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL

Applicant

First Respondent Second Respondent

Third Respondent

Heard:	03 March 2021

Delivered:    This judgment was  handed  down  electronically  by  circulation  to the parties  and / or  their  legal representatives by  email.  The date and time for handing-down is deemed 1OhOO on 27 July 2021.

Summary:	Opposed Review

JUDGMENT

Thobela-Mkhulisi, AJ

1.	Okhahlamba Local Municipality seeks to review and set aside the arbitration award granted under the auspices of the South African Local Government Bargaining Council (KwaZulu Natal), in which the dismissal of the employee in this matter, Mr Mabuya ("the employee"), was found to be unfair on procedural and substantive grounds. The award ordered reinstatement retrospectively from 22 February 2019 being the date on which the employee was dismissed, compensation in the amount of R190 379 payable within 30 days of the date of the award and costs against the Municipality on the attorney and client scale.

2.	The employee opposes the application for review and raises three points in limine in its answering affidavit, two of which were abandoned during argument: First, the application for review is defective and is not properly before this Court because the Municipality failed to furnish security, this being in contravention of section 145(7) and (8) of the Labour Relations Act, No. 66 of 1995 ("the LRA").  Second, the Municipality has failed to comply with Rule 7A of the Labour Court Rules in that the record of the arbitration proceedings was not filed timeously. Third, Mr Nkosingiphile Malinga, the deponent to the

founding affidavit delivered by the Municipality, failed to furnish documentation that supports his allegation that he has the requisite authority to depose to the affidavit and to bring the application for review on behalf of the Municipality.

3.	When the matter was argued counsel for the employee, Mr Hlatshwayo, informed the Court that the employee abandons the second and third points in limine raised and persists only with the first.

The parties

4.	The Municipality is one established in terms of the Local Government Municipal Structures Act, No. 117 of 1998 and it has its administration offices in Bergville, KwaZulu Natal.

5.	The employee was previously employed by the Municipality in its Testing and Licensing department and was later moved to its Technical Services department. The reasons why this change in departments came about emerges from the factual matrix that is set out below.

6.	Prior to turning to the factual matrix it is necessary to first consider the remaining point in limine raised.

Point in limine: The application for review is defective

7.	The point raised by the employee is that the Municipality's application  for

review is defective because of the failure by the Municipality to furnish security.

8.	The relevant provisions of section 145 of the LRA that deal with the furnishing of security read as follows:
"s 145

(3) The Labour Court may stay the enforcement of the award pending its decision.

(7)	The institution of review proceedings does not suspend the operation of an arbitration award, unless the applicant furnishes security to the satisfaction of the Court in accordance with subsection (8).

(8)	Unless the Labour Court directs otherwise, the security furnished as contemplated in subsection (7) must-

(a)	in the case of an order of reinstatement or re-employment, be equivalent to 24 months' remuneration; or

(b)	in the case of an order of compensation, be equivalent to the amount of compensation awarded"

9.	In City of Johannesburg v SAMWU obo Monareng and Another the Labour Appeal Court reasoned as follows on the question of security:

''[7]      The Labour Court has a discretionary power under section 145(3) of the LRA to stay the enforcement of an arbitration award pending its decision in the review application. It may stay the enforcement of an arbitration award

pending finalisation of a review application against the award  with or without conditions. It may in terms of section 145(8) of the LRA dispense with the requirement of furnishing security. Properly construed, section 145(3) read with section 145(7) and (8) should be interpreted to mean that where an applicant in a review application furnishes security to the Labour Court in accordance with section 145(8) of the LRA, the operation of the arbitration award is automatically suspended pending its decision in the review application. In other words, the employer need not make an application in terms of section 145(3) of the LRA to stay the enforcement of the arbitration award pending the finalisation of the review application.

[8]	However, should the employer wish to be absolved from providing security or to provide security in an amount less than the threshold in subsections
(8) (a) and (b), then it is required to make an application to the Labour Court, in terms of section 145(3), for the stay of the enforcement of the arbitration award pending its decision in the review application. The employer must make out a proper case for the stay as well as for the provision of security in accordance with section 145(8) to be dispensed with or reduced.

[9]	The words "unless the Labour Court directs otherwise" in section 145(8) of the LRA must be construed broadly to mean that the Labour Court is afforded a discretion to either: (a) exempt the employer from  paying security on the stay of the enforcement of an arbitration award pending its decision on review or (b) reduce the quantum of security to be furnished by the employer to an amount below the threshold in sections 145(8)(a) and
(b) of the LRA.

[1O] Although section 145(8) of the LRA makes specific reference to  "the applicant", it effectively applies to only employers. It makes no provision for an employee who brings a review application to furnish security. The purpose of sections 145(7) and (8) is essentially  to dissuade employers from bringing frivolous review applications  with no prospects of success and ensure that they are timeously and expeditiously prosecuted" (my emphasis)

10.	The conclusion that the employee has reached in the point in limine that he raises, that the Municipality's application for review is defective because of the failure by the Municipality to furnish security, is inconsistent with the wording of the applicable provisions in the LRA as explained by the Labour Appeal Court in City of Johannesburg v SAMWU quoted above.

11.	The furnishing of security by the party against whom an award operates results in the enforcement of the arbitration award being automatically suspended pending the decision of the Labour Court in the application for review. Where security has not been furnished and the applicant in the application for review does not wish to furnish security, that applicant may bring an application in terms of section 145(3) of the LRA to stay enforcement of the arbitration award. The furnishing of security relates to whether the arbitration award is suspended, it does not relate to whether an application for review is defective.

12.	The point is misplaced and falls to be dismissed.

The factual matrix

13.	The employee commenced employment with the Municipality during February 2015. From the commencement of his employment to his dismissal on 22 February 2019 the employee took no less than 167 days of sick leave obtained through 22 sick notes that he submitted to the Municipality.  In the

last eight months of his employment the employee was off sick continuously for almost the entire eight month period.

14.	The increase in frequency in the amount of sick leave taken started during July 2017 when the employee was booked off sick by Dr Phungwayo for three days from 25 to 27 July 2017. Two months later Dr Hlongwane booked the employee off for two days from 19 to 20 September 2017. The reasons for the sick notes in July and September of 2017 are illegible in these sick notes. A month later Dr Phungwayo booked the employee off for three days from 30 October to 1 November 2017 for a toothache. In the same month of November 2017 Dr Kubeka booked the employee off for three days from 14 to 16 November 2017 where the diagnosis recorded that the employee was 'medica lly indisposed'. On 21 November 2017 the Municipality suspended the employee pending a disciplinary enquiry against him for an incident that was not related to the amount of sick leave taken. From the time of his suspension in November 2017 to February 2018 and as a result of the suspension no sick notes were submitted. On 8 March 2018 the trade union of which the employee was a member, the South African Municipal Workers Union ("SAMW U"), addressed a letter to the Municipality advising it that it challenged what it termed the 'unfair suspension' of the employee.

15.	The employee returned to work shortly after SAMWU's letter of 8 March 2018 and with effect from 12 March 2018 he was moved from the Testing and Licensing department to the Technical Services department. The sick notes resumed the following day: Dr Mthembu booked the employee off for two days from 13 to 14 March 2018 for a 'stress related illness'. In the same month the same doctor booked the employee off for one day on 26 March 2018, again for a 'stress related illness'. The following month Dr Mthembu booked the employee off for three days from 24 to 26 April 2018 for a 'stress related illness'. During May 2018 two different doctors booked the employee off from work: Dr Phungwayo booked the employee off for two days from 10 to 11 May 2018 for a toothache, and Dr Kubeka booked the employee off for three days from 14 to 16 May 2018 for a 'medical condition'. The following month the employee was booked off sick four different times by three different doctors. Dr Kubeka booked the employee off for three days from 4 to 6 June 2018 and again for two days from 7 - 8 June 2018, on both occasions recording the diagnosis to be a 'medical condition'. In between these two sick notes and specifically on 6 June 2018, the employee received the sanction of a final written warning valid for twelve months for the unrelated disciplinary process referred to above that had seen him moved from the Testing to the Technical Services department, and his job title was changed.   The employee viewed this change in job title as a demotion. The sick notes continued. Dr Mthembu booked the employee off for two days from 18 to 19 June 2018 for a 'stress related' illness, and Dr Jogiat booked the employee off for one day on 20 June

2018 for a 'medical condition'. From July 2018 the amount of time that the employee was booked off for increased exponentially. Dr Magubane, a specialist psychiatrist, booked the employee off for twenty five days from 2 July to 3 August 2018 and then for five months from 6 August 2018 to 7
January 2019.

16.	During August 2018 the Municipality required the employee to present himself to Dr Lugongo, a doctor appointed by it for examination. The Municipality also requested a detailed report from Dr Magubane so as to understand the reason why the employee was booked off work for more than six months in total.   In its request to Dr Magubane the Municipality informed the doctor that it may wish to intervene to assist the employee through its Employee Assistance Program. Neither Dr Magubane nor the employee furnished the Municipality with the report it sought, and the first time that the Municipality saw Dr Magubane's report was during the arbitration hearing a year later. Instead, the employee reverted to the Municipality in response to the request for him to present himself to Dr Lugongo, with a list of conditions under which he would participate in the Employee Assistance Program, including that the Municipality must reverse the final written warning and the consequent 'demotion' that accompanied the warning.   Eventually, the employee did see Dr Lugongolo during November 2018.  Dr Lugongolo submitted his report to the Municipality, in which he concluded that the employee met the criteria for major depressive disorder and that his psychiatric treatment must continue but

he may return to work when his sick leave expires.	This was to occur on 7 January 2019 as per the sick note from Dr Magubane.

17.	In the month before the employee was to return to work the Municipality called the employee to a meeting to be held on 13 December 2018. The purpose of the meeting was to discuss the employee's absence from work in the light of his sick leave entitlement which had been depleted by that stage. The employee met with the Municipality on 13 December 2018.  At that meeting the Municipality informed the employee that he had no sick leave available to take, his sick leave entitlement had been depleted and in those circumstances he was to report for duty the following day on 14 December 2018. The Municipality also informed the employee that as a courtesy and for the month of December 2018 only, if the employee is still of the view that he cannot return to work on 14 December 2018 he must complete a request for vacation leave form as he had no sick leave available to take. Thus, the Municipality gave the employee the option of reporting for duty on 14 December 2018 because he had no sick leave available to take any longer, or completing a 'request for vacation leave' form for the month of December and returning to work in January 2019.  The employee’s response was that he would consult his attorney and his doctor and revert to the Municipality.

18.	The employee did not revert to the Municipality as he had undertaken to, instead his attorneys sent a letter dated 14 December 2018 that was read into

the record at the arbitration proceedings in which they expressed disgrace at Dr Lugongolo's report, and they advised that the employee remained on sick leave regardless of having been informed that he had no sick leave available to take. The employee did not report for duty on 14 December 2018, he did not complete a 'request for vacation leave' form and he did not report for duty in January 2019. Instead, on 3 January 2019 the employee submitted a further sick note from Dr Magubane that purported to book him off work from 7 January 2019 to return on 11 February 2019. On 11 February 2019 the employee did not return to work and there were no further sick note provided for his absence nor any explanation given to the Municipality for his failure to return to work.

19.	On 22 February 2019 the Municipality sent the employee a notice of termination, the relevant portions of which read as follows:

"kindly be notified that your employment with Okhahlamba local municipality (sic) is hereby terminated emanating from you failing to report on duty as required. You have abandoned your job without advising the employer of your absence following the meeting you had with human resources personnel on the 13 of December 2018 and incomplete sick notes received from you. Therefore your employment is terminated effective from today 22 February 2019".

The arbitration proceedings and the resultant award

20.	At the arbitration proceedings the employee challenged both substantive and procedural fairness. His legal representative led the evidence of the employee and that of his psychiatrist, Dr Magubane. The employee testified that he did not know why the Municipality had dismissed him because it was  in possession of his notes for sick leave, it knew his whereabouts, he had not changed any of his contact details in the time that he was off sick  and therefore cannot be said to have absconded, and his attorney did revert on 14 December 2018 to say that his client will abide his doctor's advice and not return to work whilst still booked off sick.

21.	Dr Magubane's evidence spoke to her report dated 9 August 2018 that had previously been requested by the Municipality but was not provided. That report is dated 9 August 2018 and records that the employee has work related stressors that have resulted in major depression and post-traumatic stress disorder, the symptoms which present in the employee  are listed to be a severe headache, bleeding tendencies amongst others. The report then concludes that the employee is "at a high risk of becoming hypertensive/develop a stroke or other complications of chronic ischaemic changes as shown in the MRI brain" and that "it would be in his best interest if he is removed from this highlight stressful environment as soon as possible". During her evidence at the arbitration Dr Magubane was firm in her view that the employee could not return to the same place where he worked.

22.	The employer led the evidence of one witness, Ms Makhaza, the Municipality's human resources manager. Her evidence largely relayed the facts as set out above. Additionally, Ms Makhaza testified that an employee gets an additional 20 days of leave if that employee has been temporarily  medically boarded, and that despite the employee not having been medically boarded he had been given these 20 days. Ms Makhaza made clear that the purpose of the meeting of 13 December 2018 was to ask Ms Mabuya to return to work, however since the parties did meet the Municipality treats that meeting as a disciplinary enquiry.

23.	In dealing with whether the employee's dismissal was substantively unfair the arbitrator's analysis was premised on the notion that desertion necessarily entails the employee's intention no longer to return to work. The arbitrator reasoned that the Municipality would have to establish the  employee's intention in a fair process and that mere unexplained absence is  not conclusive proof of an unequivocal intention not to return to work. The arbitrator's view was that the employee was not charged for abuse of sick leave, a failure to report for duty or incapacity and that the decision to dismiss was arbitrary, unreasonable and unlawful because the reason for dismissal was abscondment. He relied on Clause 12 of the disciplinary collective agreement that requires an employee to be absent for more than ten days before the employer may embark on a process to discipline the employee, and

concluded that because a period of ten days had not lapsed calculated from

11 February 2019, the collective agreement process was not followed in respect of the employee. Moreover, the arbitrator reasoned that the Municipality was aware of the employee's whereabouts, the employee could not have absconded during the currency of the sick note for the five months ending on 7 January 2018, the period after 11 February 2018 is eight working days, therefore the ten day period in the collective agreement was not met and the employee consequently had intention to return to work. The arbitrator then concluded that since the employee sent his sick notes to the Municipality, the Municipality was in email communication with the employee whilst he was on sick leave and the Municipality sent no letter to the employee to determine his whereabouts, the Municipality failed to prove that the employee had no intention to return to work, a requirement that had to be met to prove abscondment.   As to why reinstatement was appropriate the arbitrator relied on section 193(1)(a) of the LRA and concluded that it is the primary remedy for a dismissal that is substantively unfair; the employee  sought reinstatement and that is what was to be ordered. The arbitrator dismissed Dr Magubane's evidence stating that experts are not judges of fact, such evidence cannot take the place of the arbitrator's factual findings and Dr Magubane was protective towards the employee.

24.	In relation to procedural fairness, the award concludes that the employee's dismissal was unfair because the employee was not charged for an offence,

whether incapacity or misconduct, the employee was denied a hearing at which he was entitled to representation by a fellow employee or a union representative, the Municipality's disciplinary code in the collective agreement requires a hearing to be held for forms of misconduct for which dismissal is sought as a sanction, the employee was given no opportunity to be heard before he was dismissed.

Analysis

25.		The legal principles applicable in applications to review arbitration awards are settled. The test was laid down in Sidumo and has recently been restated by the Labour Appeal Court in Securitas Specialised Services where that Court stated that the question is:
"Is the decision reached by the arbitrator one that a reasonable decision-maker could not reach?" To maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator's award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator's reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. The result will be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator. This Court has eschewed a piecemeal approach to a review application by
the Labour Court. The proper approach is for the Labour Court to

consider the totality of the evidence in deciding "whether the decision made by the arbitrator is one that a reasonable decision-maker could make"".

26.	The arbitrator's analysis started off by him conflating abscondment, what the employee was dismissed for, with desertion.   This error set the tone for the rest of the award. The labour law jurisprudence draws a distinction between abscondment and desertion: In those instances where the employee communicates  an  unequivocal   intention   not  to  return   to  work,  the  fact of desertion is established. Abscondment is deemed to have occurred when the employee is absent from work for a time that warrants the inference that the employee does not intend to return to work. Grogan aptly observes that "employees have a fundamental duty to render services and their employers have a commensurate right to expect  them to do so".  However, while ordinary principles of contract permit a contracting party to terminate the contract if the other party becomes unable to perform, that is not the end of the matter in the case of employment. The question that still remains in such cases is whether it was fair in the circumstances for the employer to exercise that election. That is the question that confronted the arbitrator.

27.	The evidence before the arbitrator was clear and undisputed: from January to March 2018 the employee was not at work as he had been suspended. Between March 2018 and July 2018 alone the employee had taken a total of fifty one days of leave, 19 of which was sick leave and the balance was annual leave. From July 2018 to December 2018 Dr Magubane had booked the employee off work for a period of six months. At the meeting of 13 December 2018 the Municipality made clear to the employee that he had no sick left available to take, that he should return to work immediately but if he took annual leave he could return to leave in January 2019. The employee was informed that having not been at work since June 2018 he had to return to work, at the latest in January 2018. Additionally, Dr Lugongolo report stated that the employee could return to work on 8 January 2018. The employee ought to have returned to work on 8 January 2019; this is the date from which the abscondment must be considered.

28.	The arbitration award does not at all explain why, in the light of the discussions at the meeting of 13 December 2018 and the report from Dr Lugongo, the sick note of 3 January 2019 enabled the employee to be away from work when the Municipality had made it clear that there was no further sick leave to be taken.

29.	In determining whether abscondment had taken place it was necessary to consider whether by 22 February 2019 the employee had been absent from work for a period of time that warranted an inference that he had absconded from work. That period of time must be calculated from 8 January 2019, the date on which Dr Lugongolo had said he must be back at work on. A period of six weeks had lapsed from that date without the employee reporting for duty. The collective agreement sets a far less period of ten days as being indicative of an abscondment. The further sick note of 3 January 2019 cannot be considered as the employee had been informed that he had no sick leave available to him and that in December if wanted to be away further he had to ask for vacation leave. The employee failed to do so and he offered no explanation for why he continued to submit a sick leave note after 13 December 2018. That further sick note was in any event not acted in accordance with as the employee did not return to work on 11 February 2019 and there was silence from him from that date. Given the previous year of successive sick notes the Municipality cannot be faulted for have drawn the inference of abscondment and was justified in dismissing for that offence.
Given the evidence that was before the arbitrator the reasons for his finding of substantive unfairness and the finding itself are unreasonable and cannot be sustained.

30.	In relation to procedural fairness, at the arbitration hearing the Municipality contended that the meeting held on 13 December 2018 was a disciplinary hearing. At the hearing the Court enquired from Mr Pillemer whether the Municipality persisted with this contention, and Mr Pil/emer conceded that no disciplinary hearing was held. Paragraph 4(1) in Schedule 8 to the LRA sets outs what is required to be done by an employer in order to meet the requirements of procedural fairness:

"Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal.   This does not need to be a formal enquiry ... the employee should be allowed the opportunity to state a case in response to the allegations... the employee should be entitled to a reasonable time to prepare the response and to the assistance of (representation) ".

31.	It is trite that disciplinary enquiries are not required to imitate trials in the procedures that must be followed in order to arrive at a decision. Thus, an opportunity given to an employee to give his side of the story in writing and not in a formal enquiry where viva voce evidence is given on behalf of the employee and the employer, could be sufficient. The enquiry is whether the employee has been given an opportunity to state his case.

32.	From the date that the employee absconded, which this Court holds is from 8 January 2019, the employee was given no opportunity to state his case. He was not given an opportunity to be represented by a fellow employee or union representative and he had no opportunity to respond to the allegations of abscondment.

33.	I am satisfied that the employee's dismissal was procedurally unfair. After 8 January 2019 the next communication to the employee was the letter informing him that he had been dismissed. Whilst the Municipality was justified in arriving at the decision that it did in the light of the undisputed evidence, no opportunity was given to the employee to state his case.

34.	Where a dismissal is procedurally unfair section 194(1) of the LRA requires that an award for compensation be made and that "(t)he compensation ...must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal."

35.	In the circumstances of this case I am satisfied that compensation equivalent to four month's remuneration calculated at the employee's rate of remuneration on the date of dismissal is just and equitable.

36.	The arbitrator awarded costs against the Municipality on the attorney and client scale. The  Constitutional  Court  accepts that  "(a) costs order  on an attorney and client scale is an extra-ordinary one which should not  be easily resorted to, and only when by reason of special considerations, arising either from the circumstances which gave rise to the action or from  the conduct of a party, should a court in a particular case deem it just, to ensure that the other party is not out of pocket in respect of the expense caused to it by the litigation" .

37.	In Dorkin Zonda JP, as he was then, opined as follows:

"The rule of practice that costs follow the result does not govern the making of orders of costs in this court. The relevant statutory provision is to the effect that orders of costs in this court are to be made in accordance with the requirements of the law and fairness. And the norm ought to be that cost orders are not made
unless those requirements are met. In making decisions on cost orders this court should seek to strike a fair balance between, on the one hand,   not   unduly   discouraging   workers, employers, unions and employers' organizations from approaching the Labour Court and this court to have their disputes dealt with, and, on the other, allowing those parties to bring to the Labour Court and this court frivolous cases that should not be brought to court. That is a balance that is not always easy to strike but, if the court is to err, it should err on the side of not discouraging parties to approach these courts with their disputes. In that way these courts will contribute to those parties not resorting to industrial action on disputes that should properly be referred to either arbitral bodies for arbitration or to the courts for adjudication."

38.	Whilst the arbitration hearing was held under the auspices of the South African Local Government Bargaining Council (KwaZulu Natal), I have considered Rule 39 of the CCMA rules that deals with the award of costs in the CCMA. Consistent with the reasoning in Dorkin Rule 39 of the CCMA Rules requires an award of costs to be made in accordance with the requirements of law and fairness. There is no reason why the same reasoning does not apply in this instance. In particular, sub-rule (4) of Rule 39 requires the following: 

"An award for costs in terms of sub-rule (3) must be in the amount of-
(a)	in respect of the first day of an arbitration (including any arbitration concluded in a single hearing) - R7 000-00 (VAT inclusive);
(b)	in respect of each additional day of an arbitration - R4 700- 00 (VAT inclusive)."

39.	There is no equivalent rule in the Bargaining Council. Importantly, neither the CCMA Rules nor the Bargaining Council permits an arbitrator to award costs on the attorney and client scale.

40.	In the arbitration award the arbitrator offers no explanation for why punitive costs were appropriate to be ordered against the Municipality, nor does he set out the special circumstances that, in his view, presented in this matter to justify a punitive costs order on the attorney and client scale. There is no mention of provisions that govern arbitrations in the South African Local Government Bargaining Council (KwaZulu Natal) that empower the arbitrator to award punitive costs.  There is no case made out for why the requirements of the law and fairness demanded that the Municipality pay the employee's costs on the punitive scale of attorney and client. The decision to award costs is also one that a reasonable arbitrator could not reach.
Order

41.	The point in limine that the application for review is defective because the Municipality did not furnish security in terms of section 145(8) of the LRA is dismissed.

42.	The arbitration award issued under the auspices of the South African Local Government Bargaining Council (KwaZulu-Natal), Case No. KPD031901 is reviewed and set aside and there is substituted in its stead the following order:

1	The dismissal of the employee was substantively fair.

2	The dismissal of the employee was procedurally unfair.

3	For procedural unfairness the employee is awarded compensation equivalent to four months' remuneration calculated at the employee's rate of remuneration on the date of dismissal.
43.	There is no order as to costs.

Acting Judge of the Labour Court of South Africa