JNG EXPRESS (PTY) LTD v BOTSWANA INSURANCE CO LTD 2006 (1) BLR 421 (HC)

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Citation: 2006 (1) BLR 421 (HC)
Court: High Court, Lobatse
Case No: Civil Case No 1615 of 2002
Judge: Sarkodie-Mensah AJ
Judgment Date: 0000-00-00
Counsel:
Flynote

Employment - Dismissal - Incapacity resulting from ill health or injury - If incapacity serious or permanent, employer should consider alternative employment  or adapting employee's work to accommodate disability - If employee temporarily unable to work, employer should investigate extent of incapacity - If employee's absence prolonged, employer should investigate alternatives short of dismissal.

Headnote

The applicant claimed compensation or reinstatement for the alleged unfair termination of her employment following what appeared to be an  epileptic fit which she suffered while on duty. The applicant had suffered the seizure following a prank by a colleague, who leapt from behind a bush, frightening the applicant and causing her to faint. The respondent alleged that the applicant could no longer be deployed at the game camp where she had been working because of the serious risk factor, due to the fact that the camp was based in a wildlife management area unprotected by  fences or electrical strands with wild animals often roaming around the camp.

 

Held: (1) Incapacity resulting from ill health or injury can be a legitimate reason for terminating a contract of employment if it was fairly done. Whilst the usual disciplinary enquiry was not necessary, the employer was obliged to establish the nature and extent of the disability through meaningful  consultation with the employee, either with or without the intervention of a medical doctor.

 

(2) If the incapacity was serious or permanent, the employer should consider alternative employment or adapting the employee's work to  accommodate such disability. If the employee was temporarily unable to work, the employer should investigate the extent of the incapacity. If the employee's absence is prolonged, the employer should investigate alternatives short of dismissal taking into account, inter alia, the nature of the job, the period of absence, the seriousness of the illness or injury, the possibility of obtaining a temporary replacement.

 

(3) No firm diagnosis of the applicant's condition was made to warrant the conclusion of permanent incapacity on the part of the applicant. In the circumstances, the respondent's unilateral premature and non-professional assumption that the applicant had epilepsy did not constitute a valid reason for the termination of the applicant's employment. The applicant's dismissal was also procedurally unfair because there had been no  consultation and there was no evidence that the respondent had considered any alternatives short of dismissal.

Case Information

Cases referred to:

 

Goratwamang v Score Botsalano (IC 2/2002), unreportedKgamane v Trident Engineering (Pty) Ltd (IC 172/2000), unreported  

Mbaakanyi v Botswana Meat Commission [1999] 1 B.L.R. 286, IC

Mogale v Water Utilities Corporation (Practice Note) [1995] B.L.R. 798, IC

Monkutlwatsi v Scorpion Clothing (Pty) Ltd (IC 172/2000), unreported

Mokute v Senn Foods (Pty) Ltd (IC 38/98), unreported

Moseki v Johnson Crane Hire (Botswana) (Pty) Ltd (IC 143/99), unreported  

Phiri and Others v Crispin Industries (Pty) Ltd (IC 47/02), unreported

Phirinyane v Spie Batignolles [1995] B.L.R. 1, IC

Sanders v Dawson and Fraser (Pty) Ltd (IC 92/01), unreported  

Santsoma v Bokamoso Community Development Project (IC 90/97), unreported

Claim for compensation for unfair dismissal. The facts are sufficiently stated in the judgment.

Applicant in person.

R Slowgrove for the respondent.  

Judgment

EBRAHIM-CARSTENS J:

 

The applicant was employed on 16 January 2004 as a tent lady and cleaner at Abu Camp, a game camp operated in the Okavango Delta by the respondent. She is claiming three months' compensation or reinstatement for the alleged unfair termination of her employment in July 2004  following what appeared to be an epileptic fit she suffered whilst on duty at camp. It is common cause that she suffered some form of seizure or attack following a prank by the chief mahout who leapt from behind a bush with a mighty roar, causing the applicant to faint.

 

The respondent does not deny the mahout's horseplay caused the applicant to have an attack, the effects of which the respondent says were that  she could no longer be deployed at the camp because of the serious risk factor; Abu Camp being based in a wildlife management area unprotected by fences or electrical strands with wild animals often roaming round the camp. In any event, the respondent alleges that on examination of her medical report and following discussions, the applicant was paid all her terminal dues which she accepted without protest, at the same time collecting forms to pursue a claim for workman's compensation. It was only about a month later that she raised a claim for unfair termination.

 

Rosemary Slowgrove, the respondent's then operations manager, testified that on receipt of a report from Abu Camp on Saturday 3 July 2004, the managing director Randall Moore immediately arranged for a plane flown by a special freelance pilot, to airlift the applicant from the camp to the   Maun Hospital as she appeared to be very ill. Slowgrove said that when she met the applicant at the airport, she was limping, unable to talk properly and her right arm was lame. In fact she appeared lame on one side of the body and looked seriously ill. She said the initial diagnosis was that the applicant had had an epileptic fit.

 

On Monday 5 July 2004, following two days sick leave, the applicant reported for duty at the respondent's Maun offices seeking a lift to go back to camp. She alleges she was dismissed immediately by Slowgrove who handed her a termination letter. Under cross-examination she agreed that the letter was in fact addressed to the labour officer as follows:

 

     'On Saturday morning we received an urgent radio message that our staff member Kagiso Mohuhutso, had an epileptic fit at Abu Camp and needed to be flown  out for medical attention. The company luckily flew its private plane there to collect her and rush her to hospital whereupon she was diagnosed with epilepsy.

     At present our company is skeptical in sending her back to camp in case this incident occurs again. We unfortunately have also no further use of the private  plane as before and would not like to employ Kagisano, as this a serious condition that can occur at anytime and would not like to be responsible for any serious consequences.

     I would like to find out also if Workman's Compensation is able to provide for her whilst she is not employed in the bush until such time that she will be able to  support herself in Maun or another town.

     Please advise if I have taken the correct steps in this current situation.'

Slowgrove said she wrote the aforesaid letter because 'I wanted guidance from labour.' Apart from a telephone call when she was scolded by a labour officer for making a copy of the applicant's hospital card, she received no further response from the labour department. On 7 July 2004  therefore, she paid the applicant P1,246.00 as her terminal dues. On 9 July, the applicant registered a complaint for overtime. Slowgrove testified that although the applicant worked from 7.00 am to 7 pm; she had sufficient breaks to interrupt the 12 hour day. Nevertheless, the company decided to pay her a further P300 on 26 July as a one third bonus normally payable at year end following her complaint for overtime.  

 

When Slowgrove received a further notice on 8 August 2004 to attend a hearing for unfair termination about a month later, she 'disputed and said I am not paying any further'.

It was not until the specialist physician refuted her claim for disability for worker's compensation on the grounds that 'medical history and physical examination do not reveal anything. Diagnosis of epilepsy cannot be made in this case' that the applicant lodged her protest for unfair termination on  4 August 2004.

 

Slowgrove submitted therefore that the applicant having accepted her dues and crying foul only much later in the day when she had difficulty with her claim for worker's compensation; the matter had been settled or resolved.  

 

It is clear that the first issue to be decided is whether this matter had been settled and whether there is any dispute remaining for this court to decide.

 

Settlement

 

It is settled law that the Industrial Court only has jurisdiction to determine unresolved trade disputes; if a matter has been settled, there is no longer a dispute for determination. See the case of Mogale v Water Utilities Corporation (Practice Note) [1995] B.L.R. 798, IC. See also the  following cases: Santsoma v Bokamoso Community Development Project (IC 90/97), unreported per Ebrahim-Carstens AJ; Mokute v Senn Foods (Pty) Ltd (IC 38/98), unreported, per Ebrahim-Carstens J; Mbaakanyi v Botswana Meat Commission [1999] 1 B.L.R. 286, IC, per De Villiers J; Kgamane v Trident Engineering (Pty) Ltd (IC 172/2000), unreported, per De Villiers J; Monkutlwatsi v Scorpion Clothing (Pty) Ltd (IC 172/2000),  unreported, per Legwaila JP and Goratwamang v Score Botsalano (IC 2/2000), unreported, per Ebrahim-Carstens J.

In the matter of Mokute v Senn Foods (Pty) Ltd (supra), I said at p 7 onwards of the typed record:  

 

     'However, in The South African Law of Unfair Dismissal (1994 Edition) at page 92 by P.A.K. le Roux and Andre van Niekerk, it is stated that an uncritical acceptance of the argument that a Court should not hear a matter because it has been settled, could give rise to obvious problems, particularly where an employee is unrepresented and the settlement agreement is made shortly after his or her dismissal.  

     Nevertheless, in most decisions where the issue has arisen, the Court has been prepared to consider the merits of this type of argument. This it is submitted, is the correct approach. To suggest otherwise would mean that no dismissal disputes could be settled prior to Court action. Not to accept the possibility of settlement would also be contrary to the purpose of the Labour Relations Act, which encourages the settlement of disputes through negotiation and agreement.  However, the Court should be and in fact has been, prepared to investigate whether there was a settlement and whether the agreement which led to the settlement was a voluntary and informed agreement (at pages 92 and 94).

     That the Trade Disputes Act (Cap. 48:02) of Botswana, (as amended from time to time), encourages settlement, can be found in various provisions. By virtue of  Section 6A(4) of the Act (as amended) a Labour Officer on receipt of a protest "shall forthwith proceed to enquire into the circumstances giving rise to the protest to try to secure a resolution of the conflict acceptable to both" parties. Should there be failure to reach a settlement, the Labour Officer then refers the matter to the Commissioner's office with a report of his efforts to secure settlement. Thereafter "where there is a failure, after what, in the opinion of the Commissioner...., is  a reasonable time, to reach a settlement of a trade dispute not being settled by other means, the Commissioner or the Labour Officer delegated by him shall issue a certificate.... To the effect that either party may refer the matter to the Industrial Court" - (Section 7 of the Trade Disputes Act as amended).

     The Industrial Court itself is established "with all the powers and rights set out in this Act or any other written law, for the purpose of settling disputes, and the furtherance, securing and maintenance of good Industrial relations in Botswana" (Section 17(1) of the Trade Disputes Act.)'

The applicant told the court that she accepted her dues on the advice of the labour officer. In the meantime her claim under the Worker's Compensation Act (Cap 47:03), which she believed was to sustain her whilst  unemployed, was under process.

 

In the case of Santsoma v Bokamoso Community Development Project (supra) at p 9 of the typed judgment I said:

 

     'Following the South African case of Nouwens Carpets (Pty) Ltd v NUTW (1989) 10 ILJ C44 (N); 1989 (2) SA 363 (N) where the Court held that a settlement  agreement concluded at conciliation board level had the effect of a contract, this Court accordingly concludes that it has no jurisdiction to entertain this matter unless the settlement was involuntarily entered into or forced upon the Applicant unwillingly or that it was obtained in an improper manner. As to Applicant's  allegation in passing that she was forced by Miss Thebe to accept the aforesaid sum as part payment, the Court finds that the evidence does not support such contention.'

There is no averment in this case of impropriety, irregularity or force. The applicant said she accepted her terminal benefits on the advice of  Molebatsi, a labour officer and because Slowgrove also offered to pay her certain monies 'but later she said she cannot because the doctor said I have no illness'.

 

In the case of Monkutlwatsi v Scorpion Clothing (Pty) Ltd (supra) at p 14 Legwaila JP, states:

 

     '... the Applicant accepted the recommendation of the Regional Labour Office. Why was he in Court? Applicants going to Labour must choose whether they  accept the recommendation of Labour. If they accept, that must be the end of the case. If they do not, they should not be allowed to take the recommended compensation. They shouldn't be allowed to use one forum and accept its recommendation/decision and move on to the next forum on the same case asking for additional compensation. Compensation is not like withheld wages where an employee may accept whatever is available at a point in time without prejudice to continuing to demand the remaining amount. Compensation offered is supposed to be final. It is offered to settle the dispute. Acceptance of compensation implies acceptance of the terms of settlement. If the amount is not accepted it should be rejected.'  

The applicant in this case was in any event lawfully entitled to her wages, overtime and leave pay. Her acceptance of the bonus and one month's notice pay was clearly not in full and final settlement. She was led to believe, and indeed expected to be compensated, in terms of the Worker's  Compensation Act. Worker's compensation is entirely separate and distinct from compensation payable under the Trade Disputes Act (Cap 48:02).

 

Section 55(1) of the Worker's Compensation Act provides that 'Except where otherwise expressly provided, the provisions of this Act shall be in addition to and not in substitution for the provisions of any other law.'. In terms of s 11(1), the Workers' Compensation Act applies to a worker who has suffered personal injury or an occupational disease arising out of and in the course of the worker's employment. The payment of compensation in terms of the Trade Disputes Act is for wrongful dismissal or wrongful  disciplinary action - (see s 24).

I doubt very much that epilepsy can be classified as a 'personal injury or an occupational disease arising out of and in the course of the worker's employment'. However, had the applicant suffered any injury, the employer would have been vicariously liable in damages in terms of s 41 of the  Act which reads:

 

     '41.     Where the injury was caused by the personal negligence or wilful act or default of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer by civil suit independently of this Act.  

 

              Provided that -

                     (i)       any damages awarded in such civil suit shall take into account any compensation previously paid under this Act in respect of the same injury; and

                     (ii)       any compensation paid under this Act shall take into account any damages previously paid in respect of the same injury.'  

 

This court has no jurisdiction over issues of workers' compensation - see my judgment in the case of Phiri and Others v Crispin Industries (Pty) Ltd (IC 47/2002), unreported. I will therefore say no more about this aspect of the case.

 

The applicant's acceptance of the monies paid to her was therefore conditional and uninformed. The court finds that the matter was not settled, and  that there is a dispute for determination.

 

Substantive and procedural fairness

 

Procedural fairness relates to the procedure which an employer should follow prior to dismissing an employee. The list of equitable guidelines for a  fair procedure are set out in the case of Phirinyana v Spie Batignolles [1995] B.L.R. 1, IC. They need not be listed here and are addressed further below.

Substantive fairness relates to the reason for an employee's dismissal. The requirement that there must be a valid reason for a dismissal, whether the dismissal is with or without notice, stems from art 4 of the ILO Termination of Employment Convention 158 of 1982 which states that:

 

     'The employment of a worker shall not be terminated unless there is a valid reason connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.'

In the decision of Moseki v Johnson Crane Hire (Botswana) (Pty) Ltd (IC 143/99), unreported De Villiers J, found that the aforesaid art 4 is also  applicable to the termination of a contract on the grounds of incapacity due to ill health, 'since the use of the word "capacity" in the said article, used in the said context also includes incapacity' - see p 15 of the typed judgment.

 

Termination on account of ill health or injury  

 

Regarding the requirements for dismissals on account of ill health, in the aforesaid case of Moseki, at p 15 of the typed record De Villiers J states that:

 

     'There is no provision in the Botswana legislation for termination of a contract of employment due to ill-health ... The Court must therefore look elsewhere for  guidance in this respect. As dismissals because of ill-health are so closely related to dismissals for incapacity to perform, the Court will now set out the International principles regarding dismissals for incapacity to perform...'

At pp 16 to 18, the learned judge sets out the equitable substantive and procedural principles discussed by various authors relating to such  dismissals, and applicable in England and South Africa. These principles in a nutshell are summarised at p 19 as follows:

 

     'To sum up these principles, there must first and foremost be a valid medical reason for an employee's incapacity to perform, i.e. the illness must be such that the employee can no longer, as a result of the said illness, perform the duty for which he was employed. Temporary absence from work because of illness is not a  valid reason for termination of a contract of employment. The employer must first assess what the illness is, then the seriousness of such illness and then he needs to make a prognosis. This must be done in consultation with the employee and if possible also with a medical practitioner. If the employer is thereafter satisfied that the employee is not capable of performing the work for which he was employed and there is no available alternative work, the employer will be  justified in terminating the employee's contract for incapacity to perform his duties. That would be a valid reason for such termination.

     An employee who is incapable of performing his duties due to ill health, is not guilty of any misconduct, let alone serious misconduct. Such an employee's  contract of employment may therefore not be terminated without notice. This is in accordance with the aforesaid Article 11 of ILO Convention No. 158.'

In cases of incapacity due to ill health, the courts have tended not to impose adherence to the requirements of the procedural fairness test la Phirinyane; since even according to ILO Convention 158, procedural requirements extend only to reasons related to a worker's conduct or  performance. Le Roux and Van Niekerk in The South African Law of Unfair Dismissal at p 229), find that:

 

     '... The answer probably lies in the close relationship between substantive and procedural fairness which exists in cases of incapacity. Substantive requirements necessitate an assessment and a prognosis. To satisfy either of these requirements entails the participation of the employee in some form.'

Incapacity arising from ill health or injury can therefore be a legitimate reason for terminating a contract of employment if it is fairly done. Whilst the usual disciplinary enquiry is not necessary, the employer is obliged to establish the nature and extent of the disability through meaningful  consultation with the employee, either with or without the intervention of a medical doctor.

 

If the incapacity is serious or permanent, the employer should consider alternative employment or adapting the employee's work to accommodate such disability. If the employee is temporarily unable to work, the employer should investigate the extent of the incapacity. If the employee's absence is prolonged, the employer should investigate alternatives short of dismissal taking into account the nature of the job, the period of absence, the seriousness of the illness or injury, the possibility of obtaining a temporary replacement and so on. - See also my judgment in the matter of Sanders v Dawson and Fraser (Pty) Ltd (IC 92/01), unreported.

 

The applicant's case

 

The court will now examine the facts of the applicant's case and apply the legal principles pertaining to terminations on account of incapacity due to injury or ill-health. The respondent dismissed the applicant for incapacity due to epilepsy. The applicant says this was not a valid reason since the  specialist physician on 27 July 2004 said no such diagnosis for epilepsy was possible. Even the initial diagnosis on 3 July 2004 on her out-patient card states 'no known epilepsy'. Slowgrove maintained that a diagnosis could not be made from a mere physical examination and that 'on speaking further to another private doctor, it was explained to me that it was impossible to tell if a person suffered from epileptic fits without thorough examination, that requires an EEG, which I presume, would cost a lot of money and cannot be done locally in Maun Hospital'.

 

It is clear from respondent's own admission that no firm diagnosis was made such as to warrant a conclusion of permanent incapacity on the applicant's part. There was only a premature conclusion by Slowgrove that the applicant suffered from epilepsy. There was no meaningful  consultation and no proper assessment or prognosis.

In the circumstances of this case, the court finds that the respondent's unilateral premature and non-professional assumption that the applicant had epilepsy did not constitute a valid reason for the termination of the applicant's employment. Her dismissal was substantively unfair. The applicant's dismissal was also procedurally unfair because there was no consultation and there is no evidence that the respondent considered any alternatives short of dismissal.

 

Compensation

 

The court having found that the termination of the applicant's contract of employment was both substantively and procedurally unfair, the applicant  may be entitled to compensation. In terms of s 24 of the Trade Disputes Act the court may consider the following factors:

 

     (a)     The actual and future loss likely to be suffered by the employee as a result of the wrongful dismissal;

     (b)     the age of the employee;

     (c)     the prospects of the employee in finding other equivalent employment;  

     (d)     the circumstances of the dismissal;

     (e)     the acceptance or rejection by either the employer or employee of any recommendation made by the Court for the reinstatement of the employee;

     (f)      whether or not there has been any contravention of the terms of any collective agreement or any law relating to employment by the  employer or the employee;

     (g)     the employer's ability to pay.

Factors (a) to (d) are relevant. At 30, the applicant is relatively young and should be able to rehabilitate herself economically. However, she testified that potential employers always refused to give her a job after they had telephoned the respondent. Apparently Slowgrove was telling them she had  epilepsy. Slowgrove admitted that she may have told one or two enquiring would be employer's that the applicant was not suited to working in the bush although she denied the former allegation.

 

The circumstances of the dismissal are an important factor. The dismissal was a 'no fault' dismissal. Indeed, one of the respondent's employees is  largely responsible for the applicant's predicament as there was no evidence whatsoever of illness prior to the mahout's horse play. The dismissal was both substantively and procedurally unfair. The respondent prejudiced applicant's chances of employment on at least one or two occasions.

 

Other factors  

 

The court may take other factors into account. I find that the applicant's short service of six months is a consideration. However, this must be balanced with the fact that she had no adverse record and that this was a no fault dismissal.

 

The court finds that the respondent at least made an effort to obtain guidance from the labour office before applicant's dismissal. Unfortunately, this advice was not forthcoming. Had the labour office made the correct interventions, this case may have been long resolved.

 

The applicant received one month's wages in lieu of notice. She also received part of a bonus normally payable at year end. In all the circumstances of this case, the court finds that compensation of two months' wages in the sum of P1,200 is appropriate.  

 

Determination

 

In all the circumstances of this case, the court makes the following determination:

 

     1.       The termination of the applicant's contract of employment by the respondent on 7 July 2004 was both substantively and procedurally unfair.  

     2.       In terms of s 25 of the Trade Disputes Act as read with s 24(4) the respondent is hereby directed to pay to the applicant the sum of P1,200 being two months' wages as compensation.

     3.       The respondent is further directed to make payment of the aforesaid sum of P1,200 to the applicant through the office of the registrar of the Industrial Court on or before Friday 31 March 2006.  

     4.       No order is made as to costs.

We agree on the facts:

N P MOROKA

Nominated Member (BOCCIM)  

K S JANKIE

Nominated Member (Union)

 Application granted.

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