In Epibiz (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2023] 11 BLLR 1188 (LC), the employee was employed by Epibiz (Pty) Ltd (the Company) in the position of credit manager. In May 2016, the employee was suspended and following a disciplinary hearing in respect of six charges of misconduct, the employee was found not guilty. Following the employee’s acquittal, the employee was requested by the Company to return to work. She failed to do so.
Instead, the employee furnished the Company with a medical certificate which provided that the employee was unfit to return to work until the end of August due to ‘illness/operation/injury’. At the end of August, the employee returned to the same doctor for another medical certificate, this time booking her off until the end of September. The nature of her illness was specified as ‘Consultation’. The employee subsequently obtained two more medical certificates from the same doctor, each successively booking her off until the end of November, with the nature of her illness being recorded as ‘Consultation’.
During this period, the employee also obtained assessment reports from a clinical social worker, who opined that the employee had been traumatised by her suspension and the subsequent disciplinary proceedings and, as a result, had symptoms of anxiety and depression. In her recommendations, the social worker recommended that the employee not be required to return to work in order for her to be able to effectively begin her ‘healing process’.
The Company sought to engage with the employee’s representative on numerous occasions relating to the employee’s medical condition to no avail. Further, during the employee’s absence from work, the employee proposed that the Company make a claim for compensation to the Compensation Fund as she was ‘injured’ on duty. The Company refused to do so on the basis that it would be party to a fraudulent claim. The employee also asked to be retrenched, which the Company similarly refused as it sought clarity on the employee’s medical condition called ‘Consultation’.
After three months, the Company wrote to the employee’s consultant confirming that it had been without the employee’s services for several months and could not reasonably be expected to keep her position available indefinitely. In the circumstances, the employee was provided with an opportunity to make written representations as to why her services should not be terminated on the grounds of incapacity due to illness, or because she had reached the normal retirement age, or both.
In response, the employee’s attorneys of record advised the Company that before dismissing the employee for incapacity due to ill health, it was obliged to investigate alternatives short of dismissal and, in this regard, proposed that the employee be entitled to work from home, alternatively that her employment be terminated by mutual agreement. The Company rejected the proposal and proceeded to terminate the employee’s employment.
Aggrieved by her dismissal, the employee referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA arbitrator found that the Company had not followed the procedure set out in sch 8(10) of the Code of Good Practice: Dismissal (the Code). Further, based on the medical certificates and reports issued by the clinical social worker, the Company was aware of the employee’s condition and ought to have been prudent and considerate in approaching her situation. In this regard, the arbitrator found that the Company ‘was hasty when it decided to terminate the employment relationship’ and accordingly that the employee’s dismissal was procedurally and substantively unfair.
The Company took the arbitration award on review and contended that the arbitrator committed irregularities in the conduct of the arbitration proceedings, misconstrued relevant questions of law and fact, and failed to consider material evidence, which resulted in the award being unreasonable.
On review, the Labour Court noted that it was required to determine whether the arbitrator considered the principal issue, evaluated the facts presented, and came to a reasonable conclusion. In this regard, the court found that the arbitrator had ‘spectacularly’ misconstrued the guidelines set out in the Code dealing with incapacity due to ill health or injury. Schedule 8(10) of the Code does not contemplate nor reference the nature of illness referred to as ‘Consultation’. The arbitrator accordingly had misconstrued the law as the Company was entitled to suspend, charge, and discipline the employee if there was prima facie evidence of misconduct.
The evidence before the arbitrator demonstrated that the Company had made various attempts to ascertain the true reasons for the employee’s prolonged absence from work. However, all the Company’s efforts had been frustrated by the employee and her representatives. During cross-examination, the employee was asked to explain the illness called ‘Consultation’ to no avail. The employee herself could not explain her illness recorded in the medical certificates she obtained. The treating doctor did not depose to an affidavit to substantiate the nature of illness recorded, nor was the doctor called by the employee to give oral evidence during the arbitration proceedings. In the circumstances, the court found that the medical certificates and reports furnished by the doctor and social worker, respectively, constituted hearsay evidence.
The court also found that the arbitrator had failed to consider material evidence, specifically that the employee had conceded that it was not possible to perform her duties from home. As credit manager, she was constantly in contact with her colleagues and clients and required access to confidential working documents. While she remained at home on full pay, not once did the employee request that she be allocated work to demonstrate that she could seamlessly work from home. Given this fact, the Company had no alternative but to terminate the employee’s employment. Instead of capitalising on her victory in the disciplinary hearing, the employee had chosen not to exercise her right to resume work and had shown no signs of stress when she testified at the arbitration proceedings.
The court held that an employer is not expected to tolerate an employee’s prolonged absence from work for incapacity due to ill health and it may, if it is fair in the circumstances, exercise an election to end the employment relationship. If an employer’s efforts to get an employee to return to work are frustrated by the employee and if incapacity due to ill health justifies dismissal, as in the present case, an employer is entitled to dismiss the employee for prolonged illness.
The court added that the issuing of medical certificates required some legislative intervention as they are regularly used to perpetuate exaggerated or feigned illness. The integrity of medical certificates cannot be guaranteed as in certain instances, a perusal of the certificate demonstrates no nature of the illness but symptoms that do not render the employee incapacitated to perform work. Medical practitioners should always be conscious of their civic duty to society and be wary of becoming accomplices to fraudulent attempts to deceive employers.
In the circumstances, the court found that the decision of the arbitrator was not one a reasonable decision maker would have reached having properly considered the evidence presented to him. The award was thus set aside and substituted with an order that the employee’s dismissal was procedurally and substantively fair.
In Sanlam Life Insurance Ltd v Mogomatsi and Others [2023] 11 BLLR 1166 (LAC), the employee was employed by Sanlam Life Insurance Ltd (the Company) as a senior penetration tester, responsible for the protection of the Company’s information technology systems from security breaches. The employee’s mother fell ill and during this time the employee had consulted with a psychologist because of the pressure and stress that her illness caused him. The employee then returned to work. A few months later, the employee resigned claiming that his employment had become intolerable due to, among other things, that, allegedly –
Following his resignation, the employee referred a constructive dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Having had regard to all the incidents the employee had referenced to support his view that the Company had made his continued employment intolerable, the CCMA arbitrator found that the employee had failed to prove that his resignation amounted to a dismissal.
Aggrieved by this finding, the employee took the arbitration award on review and alleged that the arbitrator had failed to consider all relevant evidence, including that he was mentally ill at the time of his resignation.
On review, the Labour Court (LC) found that the arbitrator had attached no weight to the employee’s evidence that he was mentally ill at the time of his resignation. Further, there was no evidence that the Company had considered an incapacity process rather than a disciplinary process prior to the employee’s resignation. In the court’s view, an assessment of the applicant’s claim should have incorporated the mental illness suffered by the employee during the material period, which would have allowed the incidents which the employee relied on to be viewed in a different light. The LC accordingly found that the employee had proved that the employment relationship had become intolerable and ordered the Company to pay him compensation equivalent to four months’ salary.
Dissatisfied with this outcome, the Company took the judgment on appeal and contended that the issue of the employee’s mental illness and the Company’s alleged lack of sensitivity in handling the matter were not issues before the arbitrator. The employee had only handed up a medical certificate stating that he had resigned because of ‘stress’ after his resignation. The LC thus erred in deciding the matter on this basis.
The Labour Appeal Court (LAC) noted that a constructive dismissal arises where an employee terminates employment because the employer made continued employment intolerable. The mere fact that an employee resigns because work has become intolerable does not, by itself, make for a constructive dismissal. To establish a constructive dismissal, the employer must be shown to have been responsible for the causes of the employee’s unhappiness and must be blameworthy.
The test for a constructive dismissal is two-fold. First, the employee must prove that the employer effectively dismissed them by making their continued employment intolerable. In this regard, the conduct of the employer towards the employee and the impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with it. Second, after the dismissal has been established, the court must evaluate whether the dismissal was unfair.
While the LAC agreed that mental illness may be a justifiable reason to terminate an employment relationship, this was irrelevant for present purposes. The dispute before the arbitrator was not an unfair dismissal in the conventional sense, relating to conduct or capacity, but was an alleged constructive dismissal. The onus rested on the employee to prove that the Company was aware, or ought to have been aware, of his mental illness.
It was common cause that the employee suffered from stress or depression when his mother fell ill. He saw a psychologist and his condition was treated. He did not complain to, nor discuss, his mental illness with the Company thereafter. In fact, the employee’s case was that the problems which led to his resignation started three months later. During the arbitration proceedings, the employee did not mention his illness as the reason for his resignation nor did he mention the Company’s actions exacerbating his condition. It was only in the review application that the employee mentioned that his mental illness led to his resignation and furnished a medical certificate.
In the circumstances, the LC’s finding that the employee’s mental illness was common cause was not substantiated by the facts that were before the arbitrator. The LC’s remark that the Company should have considered an incapacity process rather than a disciplinary process was also misplaced, as it had conflated the requirements of an incapacity dismissal with those of a constructive dismissal. There was no evidence whatsoever that the employee was incapacitated due to mental illness. Even when the employee took his last sick leave, he said that he had the flu and not that he was suffering from stress or anxiety. It was only after his resignation that his medical practitioner certified that he had resigned due to stress.
The LC accordingly misdirected itself when it adjudicated the review based on evidence that was not before the arbitrator. In any event, there was insufficient evidence to conclude that the Company made the employee’s continued employment intolerable. The LC therefore erred in finding that there was a constructive dismissal. The arbitrator had considered all the incidents cumulatively and concluded that the employee was not constructively dismissed but resigned. The LAC held that it could not find fault with this conclusion. The appeal succeeded and the LC’s order was set aside and replaced with an order that the review application be dismissed.
Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.
This article was first published in De Rebus in 2024 (Jan/Feb) DR 40.
