The LC reviewed and upheld the retrospective reinstatement award dated 31/3/2014.  The purported reason for dismissal was misrepresentation in the form of a failure to declare a previous neck injury when completing the medical form.  But no oral evidence was adduced by the employer who relied solely on documents.  Having failed to prove any valid reason to dismiss it followed that there could not be a fair reason and retrospective reinstatement was appropriate.  The employer assumed that the neck injury was a ‘continuing medical condition’ which the employee failed to specify on the medical form, beyond merely disclosing his prior admission to hospital. The LC noted that the operation sorted out any neck injury and so there was no pre-existing medical condition to disclose.  Although arbiters need to provide a ‘helping hand’ in some instance it was not necessary in this matter and the employer could not shift the blame to the arbiter.

Assmang Ltd (Blackrock Mine) v De Beer (JR948/14) [2017] ZALCJHB 78 (28 February 2017) per Ferreira AJ.

Excerpts without footnotes

[1]   This is an application to review and set aside the arbitration award of Third Respondent dated 31 March 2014, wherein he found that it had been substantively unfair to dismiss First Respondent. Applicant (‘the Blackrock Mine’) dismissed First Respondent, a fitter and turner, after having charged him with misrepresentation, more specifically in that First Respondent failed to declare a previous neck injury when he completed a “pre-placement medical” form during July 2012.  First Respondent was subsequently hired by Applicant and commenced his employment at the mine approximately four months later, during November 2012.  The alleged misrepresentation only came to the attention of Applicant during August 2013, which led to the employee’s eventual dismissal during about September 2013.

. . . . .

[3]   Third Respondent’s finding that First Respondent did not fail to disclose a pre-existing medical condition, and his resultant reinstatement award, were arrived at in circumstances where Applicant’s representative at the arbitration, a Mr Leonard Markus, failed to present any evidence under oath and failed to call any witnesses for Applicant at the arbitration, despite Applicant bearing the onus to prove that the dismissal was fair.

During the hearing of this matter, Mr Van As, for the Applicant, correctly conceded that Applicant’s case, as it was presented at the arbitration, left “a lot to be desired”.  It is, therefore, understandable that Applicant sought to raise a further argument for this Court to consider: namely that Third Respondent was deficient in not having ensured that Mr Markus traversed the evidence which he was required to lead.

This line of argument, intended to supplement the above two grounds of review, is based on the so-called “helping hand” cases.  As argued by Mr Van As, the Arbitrator was under an obligation to warn Mr Markus of the need to lead evidence and to assist him in that regard.

It was argued that the Arbitrator should have ensured that Mr Markus led evidence so as to prove that it would be reasonably impracticable and/or a breach of applicable mining occupational health and safety legislation to employ First Respondent, as this was ostensibly most pertinent to the dispute being considered.

Was it unreasonable for the Arbitrator to find that the employee did not fail to disclose a pre-existing medical condition?

[4]   Before answering this question, it should be pointed out that First Respondent was expressly dismissed for alleged misrepresentation, specifically having been accused of failing to declare his “previous neck injury”. This was the charge contained in the notice to attend the disciplinary hearing.[1] This is distinguishable from a failure “to disclose a pre-existing medical condition”, as formulated for the purpose of Applicant’s first ground of review.  The distinction might seem irrelevant, overly technical or academic at first glance, until one realises that the employee’s case is that, although he certainly did have a neck operation during 2005 (approximately seven years before completing the medical form) and he was admitted to hospital (which fact he did disclose to Applicant in the medical form), for a period of three days during 2005, the employee’s evidence was that he did not, in fact, have any injury to his neck by the time he completed the medical form during 2012.

In other words, the employee’s case is that the operation (and the passage of time) sorted out whatever injury may have required the operation to his neck and so there was no pre-existing medical condition that required disclosure by the time the medical form was completed.  By contrast, Applicant’s first ground of review is premised (and its dismissal of First Respondent was premised) on the factual assumption that the neck injury persisted in the form of a continuing “medical condition” which the employee was obliged to specify in writing on the medical form, beyond merely disclosing his prior admission to hospital.

[5]   However one characterises the alleged misrepresentation (which was clearly alleged to be one of omission), the bottom line is that the Arbitrator did not find the employee guilty of any misconduct and found that it had been unfair for the employer to dismiss him in the circumstances. In order to determine whether or not these were unreasonable findings to make, one must weigh up the evidence that was placed before the Arbitrator.

[6]   The evidence that was led under oath before the Arbitrator was that the employee did not specify the reason for his hospital admission on the form (although he did disclose the admission itself) as there was no space on the form to elaborate in that regard. He did, however, verbally disclose his previous neck operation to one of the Applicant’s medical staff who was present when he completed the form and she advised him that it was not necessary to disclose that level of detail, as that information concerning his neck operation was already on file with the Applicant.

This stemmed from the fact that the employee had previously rendered his services to Applicant (‘Assmang’) in 2006 (the year following the neck operation) and so the neck operation had already been disclosed on that previous occasion.[2] The evidence was therefore that Applicant already had those details on file when the employee completed the medical form during 2012.

. . . . .

[7]   . . . . .

This ties in with the point already made above, that there was, in any event, no recurring or continuing neck injury or “existing medical condition” that required detailing to the extent subsequently argued by Applicant.  None of this evidence was, or could be, controverted by Applicant at the arbitration, since no evidence was led and no witnesses were called in support of Applicant’s case.

[8]   Mr Markus appears to have pinned all of his hopes of proving that the dismissal had been fair on an interpretation of the pre-placement medical form itself, but without leading any evidence to support his interpretation of that form. It is trite that documents which a party seeks to rely on for the purpose of legal proceedings, no matter how crucial or self-evident a document may seem to be, can only have evidentiary value relevant to the extent to which they are contextualised by a witness who talks to the document in question.

. . . . .

[9]   If one compares the weight of evidence on the one hand with the lack of contrary evidence on the other hand, then it cannot be said that Third Respondent arrived at a conclusion which no reasonable decision-maker could have reached in finding that the employee did not fail to disclose a pre-existing medical condition to Applicant. Indeed, if the Arbitrator had found that there had been a wrongful misrepresentation on the part of the employee, despite no evidence of that having been presented, then that surely would have been a finding which no reasonable decision-maker could have reached on the evidence.

[10]   Based on all of the aforegoing, there is no basis to support Applicant’s first ground of review.

Was it unreasonable to reinstate First Respondent in the circumstances?

[11]   In relation to the second ground of review, Applicant submitted that Third Respondent “completely disregarded the employee’s failure to lead evidence that his pre-existing medical condition… was not sufficiently serious so as to prevent him from performing his duties and responsibilities as a fitter and turner.”[1]

[12]   Applicant goes on further to say that “the employee should have, at the very least, satisfied the Commissioner that his pre-existing medical condition [a previous neck operation] would not prevent him from henceforth performing his duties and responsibilities as a fitter and turner.”[2]

[13]   This line of argument is unconvincing for a number of reasons.

[14]   In the first instance, this argument ignores the fact that where an employer chooses to dismiss its employee for misconduct reasons, the employer is the one who then bears the onus to prove that the dismissal was fair. As already pointed out above, the fundamental problem of Applicant’s case is that it failed to prove anything to justify its dismissal of First Respondent and therefore failed to discharge its burden of proof.  In circumstances where an employer fails completely to show that it had a fair reason to terminate the employment of an employee, it cannot then, by way of intellectual sleight of hand, shift the burden onto the employee and require that employee to prove that he should be retained in employment.

[15]   If one considers the actual evidence that was led, this was to the effect that there was no continuing neck injury.[3] More pertinently, in response to Mr Markus’ cross-examination, Dr Bohnen testified that, even if there was a neck injury, in his professional opinion, it would not detrimentally affect the duties of a fitter and turner, in particular that person’s capacity to pick up heavy objects.[4]

[16]   The reality is, therefore, that evidence was led to the effect that, even if the employee had been suffering from a continuing neck injury, this would not affect his capacity to perform his duties as a fitter and turner. This evidence, presented under oath by an experienced medical professional who was the occupational medical practitioner for the Blackrock Mine for the period 2006 to 2012, was not disputed by Applicant and Applicant did not present any evidence showing that the employee suffered from a condition that should preclude Applicant from employing him.  In fact, Applicant, at the arbitration, conceded that First Respondent was medically fit.  At page 42 of the CCMA Record Mr Markus says the following:

 “What is not in dispute is Mr De Beer was medically fit and that is why he was appointed.  …Mr De Beer was declared fit.  …Yes.  So that is not in dispute…”.[5]

There can therefore be no medical reason, in the face of this evidence, why First Respondent should not retain his employment.

[17]   Although passing references were made in the arbitration and in these proceedings to the ostensible legislative limitation placed on Applicant by the mining health and safety legislation, no attempt whatsoever was made to point out to this Court which specific statutory provision or provisions would apply to First Respondent in the present circumstances and where it is common cause that he is, in any event, medically fit, as indicated above.

[18]   If the failure to refer this Court to applicable legislation was merely an oversight on the part of Applicant, and such legislation would truly preclude First Respondent from being able to render his services to Applicant, then the correct course of action would be to deal with such a situation by complying with our law on employee incapacity, particularly in circumstances (such as the present) where no misconduct was committed by the employee.

[19]   The only question which remains unanswered is the following: it was not disputed that First Respondent rendered his services to Applicant (Assmang) during 2006 and this was after the neck operation took place in 2005. Why then was the First Respondent’s medical condition and its attendant legal ramifications not an issue then, yet this is presented to be an insurmountable bar to his reinstatement at this point in time?

[20]   The only remaining basis upon which it could be argued that it would be inappropriate to reinstate the employee would be a breakdown of the trust relationship between the parties. No evidence was led to show that the employee was dishonest, that he had been deceptive or that he acted in bad faith in any form or manner.  The only evidence that was led pointed to the contrary.  The employee did disclose the fact that he had an operation.  If the employee’s intention had been to deceive the employer, then why provide a partial disclosure, since it would have been more likely than not for the employer to query the reason for the hospital admission during the four months between the completion of the form and the commencement of employment, especially if the document and its contents were indeed so material to, and determinative of, the existence of the employment relationship, as subsequently argued by the employer.

. . . . .

The helping hand cases

[23]   Applicant’s ultimate reliance on the so-called “helping hand cases” would appear to betray a realisation that the evidence led by Applicant at the arbitration was wholly inadequate and incapable of discharging the employer’s burden of proof[1].

[24]   Although there may be situations where an arbitrator’s failure to assist one of the parties may end up justifying the reviewing and setting aside of those arbitration proceedings, this needs to be considered in the context of the following statements made by Musi J in Bafokeng Rasimone Platinum Mine:[2]

“In conclusion, it needs to be stated that whereas there is a duty on arbitrators to provide guidance and assistance to lay litigants, the question of whether such duty arose and whether failure to carry it out is an irregularity rendering an award reviewable is a matter to be decided with reference to the particular circumstances of each case.  Care should be taken not to straddle the fine line between legitimate intervention by an arbitrator and assistance amounting to advancing one party’s case at the expense of the other.  Otherwise we would be opening the flood gates allowing every lay representative who has bungled his/her case to seek its re-opening by shifting the blame to the arbitrator.  At the end of the day, the cardinal question is whether the merits of the dispute have been adequately dealt with and fairly so in compliance with the provisions of section 138 of the Labour Relations Act.  That question can best be answered by considering the conduct of the arbitration proceedings as a whole…”

. . . . .

[27]   Based on all of the above considerations, I am not convinced that there was a duty on Third Respondent to do more than what he did or that the arbitration proceedings should be reviewed and set aside on that basis.