General Motors South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (PR206/2016)  ZALCPE 10 (30 January 2018)
The substantive fairness of an incapacity (ill health/injury) dismissal depends on whether the employer can fairly be expected to continue the employment relationship bearing in mind the interests of the employee and the employer and the equities of the case. Relevant factors would include the nature of the incapacity; the cause of incapacity; the likelihood of recovery, improvement or recurrence; the period of absence and its effect on the employer's operations; the effect of the employee's disability on other employees; and the employees work record and length of service.
Each of the employees in this case had exceeded the 30-day statutory sick leave limit, and all of them took further sick leave. As a result incapacity enquiries were convened in respect of each of them. This was done in accordance with a collective agreement on sick leave. The notices issued to the employees stated that they would be consulted on their capacity to fulfil their job functions and render services in the manner agreed upon in their contracts of employment. The employees were further invited to submit any additional evidence related to the medical conditions which they considered relevant to the enquiry.
In each case, the respective chairpersons found that the employees did not have the capacity to meet their contractual obligations on account of excessive sick absence and in each case, decided that the sick absence trend was not likely to improve, and that the employer could not fairly be expected to continue with the employment relationship. The employment of each of the employees was terminated.
The employees disputed the fairness of the dismissals and referred disputes to the CCMA. These disputes were consolidated for the purposes of the arbitration proceedings under review. The arbitrator found that the dismissals were procedurally and substantively unfair. The basis for this was that: (1) the inquiries that the individual respondents all faced were not incapacity inquiries as envisaged by the Code; they were inquiries into a failure to comply with contractual obligations. (2) Inquiries of this nature were inappropriate; the applicant ought to have conducted ill-health incapacity inquiries. (3) Absence from work is not in itself indicative of any incapacity to work; the individual respondents could do their work when they were at work. The arbitrator found that the employer had therefore failed to establish incapacity on the part of any of the individual respondents and its failure to follow the prescribed procedure for conducting incapacity hearings rendered their dismissals substantively and procedurally unfair.
On review the Labour Court did not agree with the arbitrator's views, and the dismissals were found to be procedurally and substantively fair. The employer, having accepted the authenticity of the medical certificates, was entitled to rely on the employees' incapacity. Significantly, the Court held that arbitrators are obliged to recognise a category of incapacity arising from persistent intermittent absence from work, and the arbitrator's failure to do so constituted an error of law.
The LC held that the case against the individual respondents was not that they had breached their employment contracts or that they had breached any workplace rule. The fact that they were unable on grounds of incapacity to attend at work with a frequency that their contracts of employment required, did not have the effect of migrating the issue from capacity to conduct - the employer was fully entitled to treat the matter as it did, as a case of incapacity that resulted in a failure to meet acknowledged contractual obligations relating to attendance at work.
The substantive fairness of an incapacity (ill health/injury) dismissal depends on whether the employer can fairly be expected to continue the employment relationship, bearing in mind the interests of the employee and the employer and the equities of the case. Relevant factors would include the nature of the incapacity; the cause of incapacity; the likelihood of recovery, improvement or recurrence; the period of absence and its effect on the employer's operations; the effect of the employee's disability on other employees; and the employees work record and length of service.
Extract from the judgment:
van Niekerk J:
 In my view, by declining to recognise a category of incapacity arising from persistent intermittent absence from work, the arbitrator committed a material misdirection that amounts to an error of law. The passage from AECI Explosives (Zommerveld) v Mambalu referred to above makes clear that the LAC has accepted that persistent absence from work because of genuine ill-health is a legitimate ground on which to terminate employment, and one that relates to the capacity and not the conduct of the employee. The passage from Hendricks v Mercantile General Reinsurance Company (quoted with approval in Mambalu) is also authority for the proposition that substantive fairness in these circumstances requires an assessment of whether the employer can fairly be excepted to continue the employment relationship given the nature of the incapacity, its cause, the prospect of recovery, improvement or recurrence, the period of absence and its effect on the employer's operations and on other employees, and the employee's work record and length of service. These authorities were binding on the arbitrator (as they are on this court) and it was not open to him to ignore them.
 The arbitrator's reference to John Grogan's 'Workplace Law' in paragraph  of his award is entirely misplaced. Reading the passage on which the arbitrator relied in context, it suggests no more than that the employee's incapacity must arise from illness or injury and not some form of 'operational incapacity', in the case referred to, occasioned by the employee's detention in custody on suspicion of a crime. Indeed, the author goes on specifically to recognise and confirm that repeated absence for short periods constitutes an exception to the general rule that dismissal is generally considered inappropriate if the employee's absence is likely to be of a short duration. In the former instance, the author confirms, with reference to the AECIjudgment,that dismissal is in principle permissible in a case of habitual absenteeism, even if for medical reasons.
 In short, the arbitrator's refusal or failure to recognise a category of dismissal that permits an employer to dismiss an employee for persistent or habitual intermittent absence on account of ill-health constitutes an error of law and renders his award reviewable. It warrants mention that the arbitrator's finding effectively ignores the terms of the collective agreement between the parties on the manner in which repeated absence from work was to be regulated. This is particularly apparent from these finding that the periods of paid sick leave established by the BCEA did not preclude the granting of an extension of that leave, even on an unpaid basis. The express purpose of the collective agreement was to regulate the manner in which absence on account of ill-health would be managed. It was incumbent on the arbitrator to give effect to that agreement.
 There is also no basis on the evidence to sustain the arbitrator's finding that the hearings conducted by the applicant were, in effect, enquiries into allegations of a failure by the individual respondents to comply with their contractual obligations. The arbitrator's finding appears to have its roots in the wording of the findings in respect of each of the individual respondents. That wording, in one way or another, refers to an incapacity to 'fulfil contractual agreements' or 'fulfil contractual obligations'. These findings must be appreciated in the context of the nature of each enquiry and the findings as a whole. It cannot be deduced from a single sentence making reference to contractual obligations that the real as opposed to the apparent purpose of the inquiry was to determine the existence of any breach of contract by the individual respondents. The fact remains, as recognised by the SACP, that the obligation to attend work regularly is a contractual obligation. To suggest that an assertion that the individual respondents were unable to meet this obligation on account of their incapacity to attend work regularly amounts to an allegation of a breach of contract and thus a workplace rule, manifestly ignores the context in which the incapacity hearings were conducted and in which the respective findings against the individual respondents were made. The case against the individual respondents was not that they had breached their employment contracts or that they had breached any workplace rule. The fact that they were unable on grounds of incapacity to attend at work with a frequency that their contracts of employment recognised and demanded did not have the effect of migrating the issue from capacity to conduct - the applicant was fully entitled to treat the matter as it did, as a case of incapacity that resulted in a failure to meet acknowledged contractual obligations relating to attendance at work.
 On the basis then that it was permissible in law for the applicant to dismiss the individual respondents on account of excessive intermittent absence on account of ill-health, and given that the nature of the inquiry is one that relates to incapacity and not misconduct, the issue is whether the dismissals of any of the individual respondents were unfair on any one or more of the grounds advanced by them. On the evidence, the need to maintain satisfactory levels of attendance was clearly a capacity that an employee was required to demonstrate to remain employed. The fact remains that in each instance, the source of the alleged incapacity or inability to comply with attendance requirements was ill- health.
 The arbitrator did not consider it necessary to consider the circumstances of each individual applicant - the sweeping rejection of the approach adopted by the applicant and the dismissal of the grounds for termination of employment in each case as speculative, rendered it and necessary for him to do so. Given that this court is required to determine whether the result of the proceedings under review can stand having regard to the evidence notwithstanding any error or misdirection by the arbitrator, I intend to consider briefly whether the arbitrator's finding of substantive unfairness is capable of being upheld. It warrants mention that contrary to the arbitrator's finding, the findings on the evidence it served before each person can hardly be dismissed as speculative. On a conspicuous of all the evidence, the findings made were reasonable, given the totality of the information available to the chairperson's concern, including information on the individual respondents past attendance record, the distribution of periods of absence, the reasons for absence, and whether or not any change had occurred suggesting any prospect of improved future work attendance.
 The second respondent had exceeded the 30 day limit recognised by the SACP by a considerable degree. By the date of his dismissal, he had accumulated 60% more than the permissible number of days absent on account of illness. Further, there were some five months left in his sick leave cycle. The evidence shows that he presented with eight different diagnoses in the course of the sick leave cycle in question. In the circumstances, it can hardly be said that there was any indication that the situation was likely to improve. The best evidence available to the applicant was that, more likely than not, the second respondent would continue to be absent from work and that he accordingly lacked the capacity to ensure that he attended at work with sufficient regularity to meet his obligations both in terms of his employment contract and the SACP.
 The third respondent was absent for 36 days during the relevant sick leave cycle, exceeding the agreed limit by some 20%. Evidence suggested that he presented with seven different diagnoses in the course of the sick leave cycle and that a marked improvement in his ability to attend work on a regular basis was unlikely. On the best evidence available, it was more likely than not that the third respondent would continue to be absent from work on an excessive basis, and that he lacked the capacity to ensure regular attendance at work.
 The evidence suggests that the fourth respondent, who had accumulated some 40% more than the permissible number of sick absence days in the relevant leave cycle, had accumulated these days at a rapid rate, given that there were some 17 months remaining in the sick leave cycle. The evidence also suggested that the fourth respondent presented with nine different diagnoses in the course of the sick leave cycle in question, that these illnesses were persistent and that there was little prospect of any marked improvement in his ability to attend work on a regular basis.
 In the case of the fourth respondent, the same reasoning applies. The fourth respondent had exceeded the agreed 30 day limit by a considerable margin - he had been absent for hundred and 30 days during the applicable sick leave cycle. These days were accumulated at a rapid rate. Despite the further counselling session undertaken in May 2015, the situation did not improve. The relevant records disclosed that the fourth respondent presented with seven different diagnoses during the course of the relevant sick leave cycle. Insofar as alternative employment is concerned, in the fourth respondent's case, there was clear evidence, largely undisputed, that it was not viable simply to appoint the fourth respondent into a clerical position since no such vacancy existed at the time and skills were required that the fourth respondent did not possess or could not acquire within a reasonable time. The evidence suggests that the fourth respondent would more than likely continue to be absent from work excessively, and that he lacked the capacity to ensure regular attendance at work.
 In short, there is nothing in the record of the proceedings under review to suggest that despite the arbitrator's misdirection in relation to the nature of the enquiries conducted by the applicant, the arbitrator's finding of unfair dismissal can be sustained. The arbitrator's award thus stands to be reviewed and set aside.