An employee of the Western Cape Nature Conservation Board was dismissed for misconduct, but argued that she had been experiencing psychological illness, and was reinstated after the CCMA arbitrator found her dismissal was substantively and procedurally unfair. When the Labour Court reviewed the decision, the conclusion of procedural unfairness was set aside, but the award of substantive unfairness was upheld.

Cape Nature vs CCMA, Commissioner Crafford and Marsha Dyers C 174/2019

Case summary

This case was heard at the Labour Court of South Africa in Cape Town, involving Cape Nature (the Western Cape Nature Conservation Board) as the applicant, the CCMA as the first respondent, a CCMA commissioner as the second respondent and a recently dismissed employee of the applicant, Marsha Dyers, as the third respondent.

The case involved the review of an arbitration award where the commissioner had found that Ms Dyers, a field ranger with 16 years of service, was unfairly dismissed by Cape Nature on both procedural and substantive grounds. Dyers was dismissed in July 2017 by the Western Cape Nature Conservation Board after being found guilty of a number of charges, including gross negligence, insubordination, unauthorised absenteeism, and refusal to complete routine documentation.

The particular instances of misconduct involved taking a quad bike and driving it out to the public road after she had injured her back on duty and had been instructed not to drive it at all. She then left the quad bike mired in sand and walked back to the compound, leaving the staff to go and retrieve the vehicle. When they managed to bring it back, she refused to hand over the keys. She also allegedly toppled a filing cabinet, either on purpose or because she was trying to move it after being told not to move furniture because of her injury. She took a leave of absence amounting to 33 days over three months. The medical certificate that she provided for being off work was vague and unclear about the nature of her incapacity, basically stating she was psychologically unwell without providing details. She worked a number of days during that time even though, according to the medical certificate, she was incapacitated.

While she did not seriously dispute the charges, Dyers argued that her dismissal was procedurally and substantively unfair. She claimed that her irrational behaviour was a consequence of her mental incapacity at the time, rendering her unaccountable for her actions. However, she did not attend the disciplinary inquiry scheduled for 26 June and did not request a postponement or submit an apology for not attending. The disciplinary inquiry record revealed that the initiator and the chairperson of the inquiry tried to contact Dyers, but could not reach her.

In this case, the arbitrator’s award was challenged by the applicant who contended that the arbitrator misdirected himself by treating the matter as one of incapacity and not misconduct. The applicant argued that dismissal was the appropriate sanction given the gravity of the misconduct committed by Dyers. Moreover, the Board argued that the arbitrator had relied on a medical certificate, which was based on hearsay evidence, and had then reinstated Dyer retrospectively to the date of her dismissal in 2017.

He had found that there was no evidence from staff allegedly affected by Dyer’s behaviour to confirm that she was a source of friction, and any sense of grievance by such staff could be resolved by human resource intervention between Dyer and those staff. Based on later reports from two doctors, there was no reason why Dyer could not return to a similar position.

The applicant claimed that reinstatement was inappropriate, given Dyer’s history of disobeying instructions and the risk that she might behave irresponsibly. They also argued that the arbitrator had ignored the effect of the appeal procedure in curing any procedural defect in the initial inquiry. They believed that the arbitrator should have considered whether the refusal to postpone the hearing rendered her dismissal unfair.

The Labour Court found that although Dyers was given an opportunity to provide a proper medical assessment on appeal, she did not do so, and her dismissal was, therefore, procedurally fair. However, the Court also found that the conclusion that Dyers’ incapacity rendered her non-blameworthy was one that a reasonable arbitrator could reach, and the evidence of her diagnosis and rehabilitation obtained after her dismissal was properly considered.

Due to the fact that Dyers had never been disciplined for her actions, and that she had never displayed such behaviours in her entire 16 years of service up to that point, and due to evidence submitted much later by the applicant’s own appointed psychiatrist, the Labour Court found that it was not unreasonable for the arbitrator to have come to the conclusion that Dyers had indeed been having a manic episode at the time of all these incidents, that she did not have control over her actions, and that she would be able to return to work without problems if she stayed on medication.

The award of procedural unfairness of her dismissal was set aside, but the award of substantive unfairness was upheld. No order was made as to costs.

Written by Labour Guide