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[2014] ZASCA 70
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Solidarity and Another v Public Health & Welfare Sectoral Bargaining Council and Others (442/13) [2014] ZASCA 70; [2014] 8 BLLR 727 (SCA); 2014 (5) SA 59 (SCA); [2014] 3 All SA 550 (SCA); (2014) 35 ILJ 2105 (SCA) (28 May 2014)
Links to summary
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 442/13
Reportable
In the matter
between:
SOLIDARITY
….................................................................................................
FIRST APPELLANT
JACOBUS
ADRIAAN HENDRIK
KOTZE
..................................................
SECOND
APPELLANT
and
THE PUBLIC
HEALTH & WELFARE SECTORAL
BARGAINING
COUNCIL
…........................................................................
FIRST RESPONDENT
COMMISSIONER
C L DICKENS
N.O
...................................................
SECOND
RESPONDENT
DEPARTMENT
OF HEALTH: FREE STATE
…......................................
THIRD RESPONDENT
Neutral
citation:
Solidarity v The Public
Health & Welfare Sectoral Bargaining
Council
(442/13)
[2014] ZASCA 70
(28 May 2014)
Bench:
Ponnan, Bosielo and Theron JJA and
Hancke and Swain AJJA
Heard:
6 MAY 2014
Delivered:
28 MAY 2014
Summary
:
Employment – deemed discharge from public service by operation
of law – s 17(5)(
a
)
of the Public Service Act 103 of 1994 – whether employee on
suspension absent from duties without permission.
ORDER
On
appeal from
: Labour Appeal Court,
Johannesburg (Tlaletsi JA (Waglay AJP concurring), Murphy AJA
dissenting sitting as court of appeal):
(1)
The appeal is upheld.
(2)
The order of the Labour Appeal Court is set aside and in its stead is
substituted the following order:
‘
(a)
The appeal succeeds with costs.
(b)
The order of the Labour Court is set aside and substituted with:
“
(i)
The arbitration award issued by the second respondent, Commissioner
CL Dickens NO, under case number PSHS453-07/08 on 27 September
2008
is reviewed and set aside;
(ii)
The matter is remitted to the first respondent, the Public Health
and Welfare Sectoral Bargaining Council, to arbitrate
the
dispute referred to it by the first applicant, Solidarity, on behalf
Jacobus Adriaan Hendrik Kotze.”’
JUDGMENT
PONNAN
JA (BOSIELO and THERON JJA and HANCKE and SWAIN AJJA concurring):
[1] On 4
July 2007 the second appellant, Jacobus Adriaan Hendrik Kotze (the
employee), who had been in the employ of the third respondent,
the
Department of Health: Free State (the employer), for 17 years was
placed on what was described by the employer as a ‘precautionary
suspension’ pending the finalisation of an investigation into
allegations of misconduct levelled against him. With effect
from 23
July 2007 and whilst under suspension, the employee, without having
first obtained the permission of the employer, secured
employment in
Pretoria with a firm called Compu Africa, which was owned by one of
his relatives.
[2] On 19
October 2007 the employee received a letter from the employer which
ran thus:
‘
DISCHARGE
FROM SERVICE: YOURSELF: PERSAL NUMBER: 12545015
1.
Kindly take [notice] that you are deemed to be discharged from the
Public Service with effect from 3 July 2007 when you accepted
alternative employment whilst you were still in service of the
Department of Health.
2.
Above-mentioned discharge is [imminent] in terms of Section
17(5)(a)(ii) read in conjunction with Section 30(b) of the Public
Service Act, 1994, which stipulates the following: “If such an
officer assumes other employment, he or she shall be deemed
to have
been discharged as aforesaid irrespective of whether the said period
has expired or not”.
3.
All benefits will be paid to you and all debt you [owe] the
Government will be recovered from your pension.’
[3] When
the employee’s attempt to have that decision reviewed
internally proved unsuccessful, he referred a dispute to the
third
respondent, the Public Health and Welfare Sectoral Bargaining Council
(the council). Conciliation under the auspices of the
council having
failed, a certificate of non-resolution issued and the matter
proceeded to arbitration before the second respondent,
CL Dickens NO
(the commissioner).
[4] The
commissioner held:
‘
The
effect of Section 17(5)(a)(i) & (ii) is that provided the
requirements are satisfied the employment contract terminates
by
operation of law. As this termination is triggered by the occurrence
of an event and is not based on an Employer’s decision,
there
is no dismissal as contemplated by Section 186 of the Labour
Relations Act.’
She
accordingly concluded:
‘
The
Bargaining Council does not have the jurisdiction to hear this matter
as a deemed dismissal does not constitute a dismissal
for purposes of
the Labour Relations Act.’
Aggrieved
by that conclusion, the employee, as the second applicant, and duly
represented by the first appellant, his trade union
(Solidarity), as
the first, approached the Labour Court (LC) for an order in the
following terms:
‘
a)
Reviewing and setting aside the Arbitration award issued by the
Second Respondent under case number PSHS453-07/08 on the 27
th
of September 2008, and received by the Applicants on the 14
th
of October 2008;
b)
Refer[ing] the matter back for rehearing before a Commissioner other
than the Second Respondent in terms of
Section 145
of the
Labour
Relations Act 66 of 1995
.
c)
Alternatively, remitting the matter back to the First Respondent for
[the hearing of the] matter
de novo
before a different Commissioner.’
[5] The LC
(Molahlehi J) dismissed the application. In so doing, the learned
Judge held:
‘
[15]
In the present instance the applicant was suspended on the 4
th
July 2007, he then assumed employment with another employer on 23
July 2007 without authorisation from the respondent. Obtaining
work
with another employer amounted to absenting himself without
authority. Although the applicant was on suspension, he was still
accountable to the respondent even during the period of suspension.
He therefore required authorisation to absent himself to attend
employment with the third party. He also required authorisation to
undertake employment with another employer even during his
suspension. In [taking] employment with Compu Africa the applicant
absented himself from his work without authorisation of his employer.
Objectively speaking the applicant could not make himself available
if the suspension was to be [uplifted] and was to be immediately
instructed to report for work. Unlike in the case of absconding in
the private sector cases the respondent did not dismiss the
applicant
but the dismissal occurred by the operation of the law. The
requirement of a fair reason before termination does not
apply. In
other words the employer does not have to show what steps it took to
locate the whereabouts of applicant before [invoking]
the deeming
provisions of the PSA.
[16]
It needs to be emphasised the applicant took employment with Compu
Africa without authorization by the respondent. In accepting
employment with Compu Africa the employee absented himself from work
without the authorization of the respondent and thereby subjected
his
contract to termination by the operation of the law.
[17]
It is for the above reasons that I am of the view that the
commissioner cannot be faulted for arriving at the conclusion that
the first respondent did not have jurisdiction to entertain the
dispute of the applicant as there was no dismissal. It is also
for
these reasons that I found that the case of the applicant [stands] to
fail. I however do not [believe] that it would be fair
to allow costs
to follow the results.’
[6] With the
leave of the LC, the employee and Solidarity appealed to the Labour
Appeal Court (the LAC). The LAC (per Tlaletsi JA
(Waglay AJP
concurring) with Murphy AJA dissenting) dismissed the appeal with
costs. According to Tlaletsi JA:
‘
The
issue that was raised before the Commissioner as a point
in
limine
was whether the Bargaining
Council had jurisdiction to entertain the matter. The question that
had to be asked in determining whether
the Bargaining Council had
jurisdiction is whether the employee had been dismissed. If there was
no dismissal, the Bargaining Council
would not have jurisdiction. The
issue of jurisdiction does not depend on a finding of the
Commissioner but on whether, objectively
speaking, the facts that
would in law clothe the Bargaining Council with jurisdiction indeed
existed. If such facts were not present
it would then mean that the
Bargaining Council did not have jurisdiction, notwithstanding any
finding by the Commissioner to the
contrary . . . .’
That issue,
Tlaletsi JA approached thus:
‘
[13]
For a deemed discharge provided for in
s 17(5)(a)(ii)
to take effect,
no act or decision on the part of the employer is required. The
discharge takes effect by operation of law as soon
as the
jurisdictional requirements are met. The jurisdictional requirements
for the deemed discharge to take place is: it must
be an employee who
is not excluded; who is absent without permission; assumes other
employment without the permission of the employer.
All what the head
of the institution then does is to convey to the employee what has
taken effect by operation of law. The head
of the institution does
not have the power to stop or suspend what takes effect by operation
of law. It is therefore not within
the head of the institution to
decide or make an election on what cause to follow and ignore what
has taken effect by operation
of law and follow a procedure that he
is in his opinion less draconian.
[14]
I have already expressed my views on the HOSPERSA decision in a
recent judgment of this Court in [
Grootboom v National Prosecution
Authority
(2013) 34
ILJ
282 (LAC) para 38] . . .
[16]
In this case there is no doubt that the employee did not have the
permission of the head of the department when he assumed
other
employment. The question that must be considered is whether the fact
that he was on precautionary suspension pending an investigation
and
a disciplinary enquiry for misconduct could be deemed to have been
discharged when he assumed new employment. Furthermore,
whether when
on suspension he could be said to have been absent without
permission.
[17]
A situation anomalous to the one at hand arose in
Masina v
Minister of Justice, Kwazulu Government
. In that case an employee
who was on suspension pending an investigation of misconduct
allegations assumed other employment. He
was informed that he was
deemed discharged in terms of the applicable legislation. The then AD
held,
inter alia
, that assuming other employment must be
comparable to resignation or incompatible with continued employment
with the department
and:
“
There
is authority that in a case of wrongful dismissal the onus is on the
employee to prove the agreement and his subsequent dismissal;
and
that the onus thereafter is on the employer to justify it . . .”
In
my view, the above test is applicable in the facts and circumstances
of this case in determining whether the second appellant
absents
himself from his official duties without the permission of his head
of the institution and assumed other employment.
[18]
In my view, the employee’s conduct fell within the
circumstances envisaged in
s 17(5)(a)(i)
and (ii) of the PSA. He is
an officer who assumed other employment without the permission of the
executing authority. The employee
even though on suspension, remained
an employee of the department and was subject to its authority in
terms of the contract of
employment . . . Accepting or assuming other
employment amounts to being absent from duty because the employee is
now rendering
his services to another employer which conduct is
irreconcilable with his employment with the department while under
suspension.
He left the Free State where he was stationed and moved
to Pretoria to put his labour at the disposal of the new employer. In
the
circumstances, I am of the view that he was deemed to be
discharged and there was no decision to dismiss him. The Bargaining
Council
therefore, lacked jurisdiction to entertain his dispute since
he was not dismissed.’
[7] The
further appeal by the appellants against the judgment of the LAC is
with the special leave of this court. Of the three respondents,
only
the employer participated in the proceedings in the LC and the LAC.
In this court the employer filed a notice with the registrar
withdrawing its opposition to the appeal and intimating that it would
abide the decision of the court.
At the request of this court,
Mr Grobler of the Bloemfontein Bar appeared as
amicus curiae
,
and the court is indebted to him for his assistance in the matter.
[8] The
Labour Relations Act 66 of 1995 (the LRA) provides: if there is a
dispute about the fairness of a dismissal, the dismissed
employee may
refer the dispute for conciliation and arbitration to a bargaining
council, if the parties to the dispute fall within
the registered
scope of that council (s 191); and, in any proceedings concerning any
dismissal, the employee bears the onus of
establishing the existence
of the dismissal (s 192). In this case the commissioner’s
conclusion flowed from his having found
that the employee had not
discharged the onus resting upon him of proving that he had been
dismissed. Instead, so he held, the
‘employment contract
terminates by operation of law’. Both the LC and the majority
of the LAC agreed with that finding.
[9] The
principal thrust of the employee’s argument is that s 17(5)(
a
)
of the Public Service Act 103 of 1994 (the PSA) did not find
application inasmuch as the employer had failed to prove that he
had
absented himself from his official duties as contemplated by that
section. To the extent here relevant, s 17(5) provides:
‘
(
a
)(i)
An officer . . . who absents himself or herself from his or her
official duties without permission of his or her head of department,
office or institution for a period exceeding one calendar month,
shall be deemed to have been discharged from the public service
on
account of misconduct with effect from the date immediately
succeeding his or her last day of attendance at his or her place
of
duty.
(ii)
If such an officer assumes other employment, he or she shall be
deemed to have been discharged as aforesaid irrespective of
whether
the said period has expired or not.
(
b
)
If an officer who is deemed to have been so discharged reports for
duty at any time after the expiry of the period referred to
in
paragraph (
a
),
the relevant executing authority may, on good cause shown and
notwithstanding anything to the contrary contained in any law,
approve the reinstatement of that officer in the public service in
his or her former or any other post or position, and in such
a case
the period of his or her absence from official duty shall be deemed
to be absence on vacation leave without pay or leave
on such other
conditions as the said authority may determine.’
[10] A ‘deemed
dismissal’ in terms of s 17(5)(
a
)(i) of the PSA follows
by operation of law. Accordingly, the notice of 19 October 2007 to
the employee purportedly in terms of
that section, was purely a
communication of a consequence that, in the employer’s view,
followed by operation of law (
Minister van Onderwys en Kultuur v
Louw
[1994] ZASCA 160
;
1995 (4) SA 383
(A) at 388). Plainly, that section only
finds application to an employee who ‘absents himself or
herself from his or her
official duties without permission’.
Foundational to the judgment of the majority of the LAC was the
premise that the employee
was absent from duty without permission
when he accepted outside work. This is obviously incorrect. The
employee was indeed absent
from duty. But, having been suspended, he
was absent at his employer’s behest. And, not having been
assigned alternative
duties, for the duration of his suspension he
had no duties. Logically therefore, he could thus not conceivably
‘absent himself
from his official duties’. In
Grootboom
v National Prosecuting Authority
2014 (1) BCLR 65
(CC) para 42
the Constitutional Court held:
‘
It
is so that the applicant was absent from his employment. He was
absent because he was suspended. This means that he was absent
with
the permission of his employer. Therefore, one of the essential
requirements of s 17(5)(a)(i) has not been met.’
In
arriving at that conclusion, the Constitutional Court overruled the
LAC, which in its judgment - the subject of that appeal,
namely,
Grootboom v National Prosecution
Authority & another
(2013) 34
ILJ
282 (LAC)
-
had
held (para 37):
‘
The
fact that the appellant was on precautionary suspension and was not
required to report for duty is, in my view, not a bar to
the
application of section 17(5)(a) of the PSA.’
[11] The
finding by the majority that the employee had effectively resigned by
assuming alternative employment is equally untenable.
There was no
evidence that the employee’s temporary employment with Compu
Africa was indeed incompatible with his obligations
to the employer.
The employee was under suspension when he commenced work with Compu
Africa. Self-evidently, his suspension relieved
him of his obligation
to render his services to the employer. The employee’s only
obligation in return for his salary was
to make himself available
should his suspension be lifted. His suspension had not been
lifted when he received the notice
in terms of s 17(5) of the PSA. It
bears noting that an employee’s entitlement to payment and an
employer’s obligation
to pay arises not from the actual
rendering by an employee of his services but from his making those
services available to his
employer (
Johannesburg Municipality v
O’Sullivan
1923 AD 201).
That principle was endorsed by the
Constitutional Court in
Equity Aviation Services (Pty) Ltd v CCMA
[2008] ZACC 16
;
2009 (1) SA 390
(CC) para 54 in these terms:
‘
As
long as an employee makes himself or herself available to perform his
or her contractual obligation in terms of the contract
of employment,
he or she is entitled to payment despite the fact that the employer
did not use his or her services.’
[12] Moreover,
Masinga v Minister of Justice, Kwazulu Government
[1995] 2 All
SA 350
(A), which the majority of the LAC called in aid, is not
authority for the proposition that assuming alternative employment
equates
to a resignation. As Murphy AJA correctly observed in his
dissenting judgment, the deeming provision in that case differed
quite
significantly from that here under consideration. The relevant
provision (s 19(29) of the KwaZulu Public Service Act 18 of 1985),
which occupied the attention of the court in
Masinga
read:
‘
An
officer who has been suspended from duty in terms of sub-section (4)
or against whom a charge has been preferred under this section
and
who resigns from the Public Service or assumes other employment
before such charge has been dealt with to finality . . . shall
be
deemed to have been discharged on account of misconduct . . .
.’
Of that
provision, Nienaber JA stated (
Masinga
at 351):
‘
Before
dealing with the evidence, such as it was, it is helpful to consider
the purpose of s 19(29). According to Didcott J:
“
It
is to prevent someone who is facing charges of misconduct from
ducking these charges by resigning and attracting the advantages
of a
resignation in good standing. It is to ensure that, if anybody
resigns while he is facing charges, he will be in as bad a
position
as he would have been if the charges had been found proved and he had
been dismissed on account of them. So what
is prevented is, as
I say, a resignation in an attempt to avoid the charges and to
prevent the misconduct from being investigated
and its presence or
otherwise determined.”
The
court
a quo
agreed with this analysis and so do I.’
Nienaber JA
added:
‘
An
officer who resigns while under suspension shall be deemed to be
discharged on account of misconduct. In effect it means that
his
resignation is deemed to be an admission of misconduct justifying a
discharge from a date specified by the minister. So too,
if the
officer, without formally resigning, assumes other employment. The
phrase “assumes other employment” is thus
used as an
elaboration or extension of the concept of “resignation”.
“Assuming other employment” must therefore
be comparable
in effect to a resignation; the “other employment”, in a
word, must be incompatible with continued employment
with the
department. It would be incompatible, on a par with resignation, if
his new conditions of service should prevent him from
resuming
employment with the department at will if his suspension is lifted
e.g. if he is obliged to give notice to his new employer
to do so. It
would likewise be incompatible with his occupation as a prosecutor if
the nature of his new employment would tend
to create a conflict of
interests, e.g. if his new employer had an interest in exploiting
confidential information at his disposal
or is engaged in criminal
pursuits. These are mere examples. They are not applicable in this
case. Here the only real issue is
whether his work in the CLP could
prevent him from resuming employment with the department forthwith if
his suspension were lifted.’
After alluding
to the evidence adduced in that case, the learned Judge of Appeal
concluded (at 354):
‘
The
evidence of Chaplin was that the appellant was initially employed on
a casual basis for which he was paid by the hour. There
is nothing to
suggest that the basis of his employment changed thereafter. On the
face of it Chaplin’s further statement:
“
He
was not appointed on University conditions of service and there was
no contract between him and the University.”
can only mean,
judged on the probabilities, that his employment was an
ad hoc
one, a loose arrangement, which the appellant could terminate at
will. And if that is so the appellant’s employment with
the
university was not incompatible with his employment with the
department while he remained under suspension, no more so than
if he
hawked fruit or sold insurance on commission or did casual paint work
for a building contractor.’
It must
therefore follow that reliance on
Masinga
was misplaced.
[13] In
advising the employee of his discharge from service, the employer
asserted that it was invoking ‘Section 17(5)(a)(ii)
read in
conjunction with Section 30(b) of the [PSA].’ Somewhat
surprisingly, s 17(5)(
a
)(i)
of the PSA was not alluded to in that notice. That notwithstanding,
the commissioner and both courts below approached the matter
as if
the employer had indeed placed reliance on s 17(5)(
a
)(i).
The finding of Tlaletsi JA in favour of the employer appears to be
predicated on a reading of s 17(5)(
a
)(ii)
to the effect that the assumption of outside employment by a
suspended employee in and of itself automatically leads to a
deemed
discharge. But that is not what that subsection states. It
provides that if ‘such an officer’ assumes
other
employment, he or she shall be deemed to have been discharged ‘as
aforesaid
irrespective
of whether the
said period
has expired or not’ (my emphasis). Section 17(5)(
a
)(ii)
is not intended to provide for a deemed discharge by operation of law
whenever an employee assumes other employment. That
subsection, which
merely provides for the one calendar month envisaged in subsection
(i) to be abridged if certain requirements
are met, is not a
self-standing provision. Linguistically, the phrase ‘such an
officer’ in subsection (ii) is plainly
a reference to ‘the
officer’ contemplated in subsection (i). And, ‘the
officer’ contemplated in subsection
(i) is ‘an officer’
‘who absents himself . . . from his . . . official duties
without permission . . .
for a period exceeding one calendar
month’. It thus follows that unless the requirements of
subsection (i) are met, subsection
(ii) does not find application.
Here, as the employee was not an employee who had absented himself
without permission as envisaged
in subsection (i), s 17(5)(
a
)(ii)
did not find application.
[14]
That leaves s 30(
b
)
of the PSA, which provides:
‘
[N]o
officer or employee shall perform or engage himself or herself to
perform remunerative work outside his or her employment in
the public
service, without permission. . . .’
The
employee may well have breached this provision, but in the light of
the conclusion of the commissioner that the council lacked
jurisdiction, it did not occupy the attention of either of the courts
below. Nor could it, for whether he had breached that provision
fell
to be decided by a duly convened disciplinary enquiry. That did
not occur. In any event had such a tribunal terminated
the
employee’s employment that would have constituted a dismissal
for misconduct. That is in the nature of a dispute in respect
of
which the council would not have suffered a want of jurisdiction.
Thus whether s 30(b) does indeed find application to a suspended
employee is a question which neither of the courts below had to
consider. Nor does this court.
[15] It
must follow that the commissioner’s conclusion and also the
conclusions by the LC and LAC that the council lacked
jurisdiction
cannot be sustained. Accordingly, the appeal must succeed. Counsel
for the appellant urged upon us that in that event,
given the time
that has elapsed, we should order the employee’s
re-instatement. I do not believe that we can accede to counsel’s
request. The effect of the council’s order was to dismiss the
employee’s claim (that he had been unfairly dismissed)
for want
of jurisdiction. Having taken the view that it lacked jurisdiction –
erroneously as it now turns out – the
council did not enter
into the merits. Nor could it. (See
Makhanya
v University of Zululand
2010 (1) SA 62
(SCA).) That it must now do. The matter must thus be remitted to it.
[16] As
to costs: The LC, in dismissing the employee’s application,
made no order as to costs. Counsel for the appellant intimated
from
the Bar in this court that he would abide that order. In dismissing
the appeal, the majority of the LAC ordered each party
‘to pay
[its] own costs’. Murphy AJA, who would have upheld the appeal,
inclined to the view that the employer should
pay the costs of that
appeal. There, undoubtedly, is much to recommend that approach.
[17] In the
result:
(1) The appeal
is upheld.
(2) The order
of the Labour Appeal Court is set aside and in its stead is
substituted the following order:
‘
(a)
The appeal succeeds with costs.
(b) The
order of the Labour Court is set aside and substituted with:
“
(i)
The arbitration award issued by the second respondent, Commissioner
CL Dickens NO, under case number PSHS453-07/08 on 27 September
2008
is reviewed and set aside;
(ii)
The matter is remitted to the first respondent, the Public Health and
Welfare Sectoral Bargaining Council, to arbitrate
the
dispute referred to it by the first applicant, Solidarity, on behalf
Jacobus Adriaan Hendrik Kotze.”’
_________________
V
M PONNAN
JUDGE
OF APPEAL
APPEARANCES:
For
Appellants: J Grogan
Instructed
by:
Serfontein
Viljoen & Swart, Pretoria
Vermaak
& Dennis Inc, Bloemfontein
Amicus
Curiae: S Groble
Instructed
by:
Claude
Reid Attorneys
Bloemfontein