Parexel International (Pty) Ltd v Chakane, T N.O and Others (JA39/2018)  ZALAC 50 (27 June 2019)
An employer is not expected to tolerate an employee's prolonged absence from work for incapacity due to ill health, and may exercise an election to end the employment relationship. An employer is not required to hold an incapacitated employee's position open indefinitely when there is a failure to provide the reasons for, and anticipated extent of, continued absence. In these circumstances an employer's failure to consider alternatives short of dismissal is not unfair.
Within 4 months of starting work as a clinical research nurse, the employee fainted and hit her head as a result of a work related incident. She lost consciousness and required medical help. 3 medical reports were submitted to the employer - with varying descriptions of the cause and the consequences. From July 2010 the employee was on special leave and permitted to take her full sick leave entitlement and annual leave. By December 2010, she had been off work for almost six months. The employer stopped paying her salary but continued contributions to medical aid, provident fund and life cover.
Early in 2011, a psychiatrist reported that the employee's main medical problem was a mood disorder that was not related to the injury on duty but was severe enough to cause "severe functional limitations". This psychiatrist reported that the employee's condition was manageable and should not lead to permanent disability.
The employer made several attempts to hold an incapacity hearing, but it could not proceed either because the employee could not attend or a medical report had not been presented. At the end of March the employee indicated that she could not comment on her prospects of recovery as this was subject to the advice of a medical practitioner and that she did not know when she would be able to work again.
The employer informed the employee that if she could not prove that she was incapacitated or sick, she had to return to work on 1 April 2011. She reported for duty for 3 days but then her husband reported she had back pain and a headache and could not work. The employer informed her that she was to submit a medical report containing the nature of the illness, prospect of recovery, and whether she would be able to resume normal duties. No report was received.
An incapacity enquiry was convened, but the employee's husband informed the employer she would not attend and accepted that the enquiry could continue in her absence. The employer terminated her services with immediate effect due to her ill-health, and the reason provided was that she was incapable of performing the work for which she had been employed.
The dismissal was referred to arbitration where the commissioner found that the employer had failed to discharge the onus to prove that the employee was incapable of performing her duties. The commissioner also concluded that the employee was not provided with an opportunity to participate fully in the process and that the dismissal was procedurally unfair. She was reinstated retrospectively with 10 months' back pay.
On review, the Labour Court found that the arbitrator could not be faulted for finding that the employer had failed to enquire into the extent to which she was able to perform her work, and to explore all other possible alternatives short of dismissal. The LC dismissed the review application with costs.
On appeal, the Labour Appeal Court confirmed that our courts have recognised that an employer is not expected to tolerate an employee's prolonged absence from work for incapacity due to ill health, and may exercise an election to end the employment relationship. The LAC noted that the employee was off work for over 9 months, during which time she provided medical certificates indicating different reasons for her absence. Given this, the employer requested her to provide a medical report indicating the reason for her extended absence, the prognosis for her recovery and if she was to recover, the period within such recovery could be anticipated. Yet in spite of offers of assistance from the employer, she provided no such medical report. The LAC found that, in failing to provide this, the employee frustrated a proper consideration of the reasons for her extended absence.
The LAC held that that the arbitrator's finding that the employer did not explore alternatives to accommodate the employee, failed to take into account that the employee was incapable of returning to work and had accepted as much. The commissioner had also disregarded the evidence regarding the reasons for and the extent of the employee's absence from work. The LAC granted the appeal and found the employee's dismissal to have been procedurally and substantively fair.
It is clear from this case that an employer is not required to hold an incapacitated employee's position open indefinitely when there is a failure to provide the reasons for, and anticipated extent of, continued absence. In these circumstances an employer's failure to consider alternatives short of dismissal is not unfair. An incapacity investigation involves reciprocal duties, and an employee must assist the employer to assess the extent of the incapacity by providing the necessary medical information required.
Extract from the judgment:
 It has been recognised by our courts 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 be fair in the circumstances, exercise an election to end the employment relationship". Item 10(1) of Schedule 8 to the Labour Relations Act 66 of 1995 (the LRA) provides that if an employee is absent for an unreasonably long period, the employer should investigate all possible alternatives short of dismissal.
 The employee was absent from work for a period of nine months during which time she provided different medical certificates indicating distinct reasons for her absence. On 30 June 2010, she was diagnosed with chronic headaches or migraine and cervical muscle spasm by Dr Relling. On 7 July 2010, Dr Hugo reported that she had experienced concussion. On 7 July 2010, Dr Mofolo reported vomiting with severe headache and lower back pain, noting that the employee reported a lack of sensation in her left lower limb and that she was aknown migraine patient. Having previously treated her for pain, on 3 December 2010, Dr Hugo recorded that the employee had injured her neck and back and that she would recover with time. On 26 January 2011, Dr De Kock recorded that the employee suffered from a co-morbid mood disorder, being her main medical problem, which was not related to her injury on duty but was severe enough to cause severe functional limitations. Dr Jordaan followed up on this report, without stating what condition he was reporting on, to indicate that the employee's condition was manageable and should not lead to permanent disability.
 The appellant proceeded by way of an incapacity enquiry to determine whether the employee's absence from work had been unreasonably long or not. Implicit in such a determination was a consideration of the reasons advanced by the employee for her absence and the extent of such absence. Since very distinct reasons had been provided by different doctors for the employee's absence, the appellant requested the employee to provide it with a medical report indicating the reason for her extended absence, the prognosis for her recovery and if she was to recover, the period within such recovery could be anticipated. Yet, in spite of offers of assistance made by the appellant to the employee, no such medical report was provided by her.
 Although Mr Khang suggested in argument that the employee's condition was all related to the injury on duty, there was no evidence placed before the commissioner to support such a contention. The fact remained that in failing to provide a report as to the reasons for her absence and an assessment as to when her recovery could be expected, the employee frustrated a proper consideration as to the basis for her extended absence.
 The appellant was not required to hold the employee's position open for her indefinitely when she had failed to provide any clear basis as to the reasons for and anticipated extent of her continued absence. The employee herself asserted that she could not return to work and could after nine months give no indication when she would be able to do so. The ensuing incapacity enquiry, which proceeded by agreement, found that she been absent for an unreasonably long period and that she could not perform the work for which she had been employed.
 It is self-evident that whether an employee is willing and able to work and when she may be in a position to do so are material considerations to which regard must be had when considering an employee's incapacity, whether she has been absent from work for an unreasonably long period of time and whether alternatives to dismissal exist. The employee's extended absence from work was not explained by way of a properly detailed medical report. The different medical certificates provided to the appellant did not explain why her extended absence from work had been necessary or why her continued absence was justified. On her own version, the employee was unable to return to work and was unable to indicate when she may be able to do so. There was no dispute that the employee's position had already been kept open for her for more than nine months. Given these facts, the appellant's failure to consider alternatives short of dismissal was not unfair. A proper assessment was made by the appellant having regard to the facts of this matter as to whether the situation warranted dismissal and dismissal was shown by the appellant to have been fair.
 In finding that the appellant had failed to explore alternatives to accommodate the employee, the commissioner failed to have regard to the conspectus of the material before him with due regard to items 10 and 11 of Schedule 8. The clear evidence was that the employee was incapable of returning to work and the employee accepted as much. By finding that the appellant had failed to consider alternatives to dismissal, the commissioner disregarded the evidence regarding the reasons for and the extent of the employee's absence from work, as well as the lack of any medical evidence to indicate why such an extended absence had been justified and when she could return. By so doing the commissioner adopted an erroneous approach to the matter, while ignoring the undisputed evidence before him. This constituted a reviewable irregularity insofar as the decision arrived at was one which a reasonable decision-maker could not reach on the material before him. The Labour Court erred in finding that the arbitration award was not reviewable and for these reasons, the appeal must succeed.
 Having regard to considerations of law and fairness there is no reason as to why the employee should be burdened with the costs of the matter, more so when in relation to the costs of the appeal she had been successful at arbitration and before the Labour Court.
 In the result, the following order is made:
- The appeal succeeds.
The order of the Labour Court is set aside and replaced as follows:
- 'The review application is upheld.
The award of the first respondent is reviewed, set aside and substituted as follows:
'The dismissal of the third respondent, Ms K D Mosime-Maseti, is found to have been procedurally and substantively fair.''