Humbulani Richard Sandani v The Commission for Conciliation, Mediation and Arbitration and Others

The Applicant was employed by the Third Respondent (Western Chrome Mines) as a Mineral Resource Specialist: Geology on 22 February 2017. On 11 October 2017, he was injured in a fall of ground incident while working underground, sustaining severe back injuries (compression of vertebral bones from T4 to T6). After the injury, he consulted various medical specialists including neurosurgeons, orthopaedic surgeons, occupational therapists, a psychiatrist, and physiotherapists. The Applicant returned to work with restrictions on 6 March 2018, limited to surface work only, but could only work for approximately one week before complaining that he could not sit for prolonged periods (more than 30 minutes) or drive on uneven roads. On 29 January 2019, the occupational medical doctor, Dr Mmakhuto, categorised the Applicant as permanently unfit (category E - not fit to work in the mining environment). The Applicant's employment was terminated on 6 July 2020 after he had been on full salary and benefits for two years and nine months without being able to render services. He received a medical separation package of R174,652.85 and a lump sum from Rand Mutual Assurance (RMA) of R63,972.67. The Applicant was earning R56,182.28 per month at the time of dismissal. The Applicant referred a dispute to the CCMA challenging the substantive and procedural fairness of his dismissal.

• Whether the dismissal of the Applicant for incapacity due to ill health/injury was procedurally fair
• Whether the dismissal of the Applicant for incapacity due to ill health/injury was substantively fair
• Whether the Commissioner properly applied the test for reasonableness in evaluating the fairness of the dismissal
• Whether the employer complied with the Disability Management Agreement and applicable policies
• Whether the employer reasonably accommodated the employee's disability
• Whether the employer complied with the Mine Health and Safety Act provisions regarding medical categorisation and appeals
• Whether the review application met the test in Sidumo for setting aside an arbitration award

The review application was dismissed. There was no order as to costs.

An arbitration award will only be set aside on review if the decision is one that no reasonable decision-maker could reach (Sidumo test). The review court must assess the totality of the evidence holistically, not in a piecemeal fashion, to determine if the result is rationally connected to the evidence. An award is reasonable when there is a material connection between the evidence and the result. In incapacity dismissals for workplace injuries in the mining industry, the statutory appeal process under section 20 of the Mine Health and Safety Act (appeal to Medical Inspector within 30 days) takes precedence over internal company policies. When determining procedural and substantive fairness of incapacity dismissals, courts must consider the factors in Schedule 8, Items 10 and 11 of the Code of Good Practice: (1) whether the employee is capable of performing the work; (2) the extent to which the employee can perform; (3) the extent to which work circumstances or duties can be adapted; and (4) availability of alternative work. An employer satisfies its obligation to accommodate an employee's disability when it provides reasonable alternative work (such as surface-only duties with restrictions) which the employee cannot perform due to the incapacity. Where an employer pays an employee full salary and benefits for nearly three years while the employee undergoes medical treatment and rehabilitation, provides reasonable accommodation which the employee cannot sustain, and terminates employment only after medical categorisation as permanently unfit and after a retrenchment process eliminates alternative positions, such dismissal is both procedurally and substantively fair.

The Court emphasised that great care must be taken to maintain the distinction between review and appeal, however difficult that may be. The Court noted that whether the reviewing court disagrees with the arbitrator's reasons is not material - the question is whether the award meets the requirement of reasonableness. The Court observed that unreasonableness is the threshold for interference with an arbitrator's award on review. The Court noted approvingly that the Commissioner's award was extremely detailed (33 pages in single spacing) and represented a careful and lucid analysis of all issues, properly citing authorities and statutes. The Court commented that the Applicant appeared to have deliberately frustrated the medical boarding process to continue receiving full salary while not working, including refusing to sign Sanlam insurance forms and raising frivolous points about bonus and incident reports. The judgment contains instructive observations on the practical difficulties employees face after workplace injuries, noting that even during the arbitration the Applicant could not sit for prolonged periods and had to request standing breaks, demonstrating the continuing nature of his incapacity. The Court noted that employers have a more onerous duty to accommodate incapacity when the injury is work-related, but found this duty was satisfied in the circumstances.

This case reinforces the limited scope of review of arbitration awards under section 145 of the LRA, emphasising that review is not an appeal and courts must not substitute their own views for those of the arbitrator. It confirms the application of the Sidumo reasonableness test and the principles from Goldfields Mining regarding holistic assessment of evidence rather than piecemeal analysis. The judgment provides guidance on dismissals for incapacity due to workplace injuries, particularly in the mining industry context where the Mine Health and Safety Act applies. It clarifies that: (1) employers must follow statutory appeal procedures under the MHSA rather than only internal policies; (2) reasonable accommodation obligations are met when an employer provides alternative work which the employee cannot perform; (3) extended periods of paid absence (nearly 3 years) while attempting rehabilitation and accommodation demonstrate procedural fairness; (4) categorisation by an occupational medical practitioner after consideration of multiple specialist reports is reasonable even if further specialists are consulted afterward for mental health support; (5) the absence of alternative employment during retrenchment periods supports substantive fairness of incapacity dismissals. The case also illustrates proper application of Schedule 8 of the Code of Good Practice on incapacity dismissals.