Phenithi v Minister of Education and Others (3831/2003) [2004] ZAFSHC 123; (2005) 26 ILJ 1231 (O); [2005] 6 BLLR 614 (O) (5 August 2004)

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[2004] ZAFSHC 123
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Phenithi v Minister of Education and Others (3831/2003) [2004] ZAFSHC 123; (2005) 26 ILJ 1231 (O); [2005] 6 BLLR 614 (O) (5 August 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 3831/2003
In the
matter between:
M.G.
PHENITHI
Applicant
and
THE
MINISTER OF EDUCATION
First Respondent
MEMBER
OF THE EXECUTIVE
Second Respondent
COUNCIL
FOR EDUCATION IN THE
PROVINCIAL
GOVERNMENT OF THE
FREE
STATE
THE
HEAD OF DEPARTMENT OF
Third Respondent
EDUCATION
IN THE PROVINCIAL
GOVERNMENT
OF THE FREE STATE
_____________________________________________________________________
CORAM:
EBRAHIM,
J
_____________________________________________________________________
HEARD
ON:
6 MAY 2004
_____________________________________________________________________
DELIVERED
ON:
5 AUGUST 2004
_____________________________________________________________________
[1] This judgment deals with the constitutional review
of a deeming provision in the Employment of Educators’ Act (Act no
76 of
1998). The applicant seeks to review a decision taken by the
respondents to dismiss her from its employ. The principal contention
underpinning the applicant’s case is that the legislative
provisions in the Act in terms of which the dismissal was effected is
constitutionally invalid in that it offends her right to fair labour
practice and lawful and fair administrative action. In the
Notice of
Motion the applicant claims the following relief:
1.1 That
the decision of the respondents to dismiss the applicant be set
aside and declared an unfair labour practice and
unconstitutional;
1.2 That
the provisions of Section 14(1)(a) read with 14(1)(d) and 14(2) of
the Employment of Educator’s Act, Act no 76 of
1998 be declared
unconstitutional and invalid;
1.3 That
the respondents be ordered to pay the costs of this application
only on opposition jointly and severally, the one
paying the other
to be absolved;
1.4 Further
and/or alternative relief.
[2] The background to this application is the following:
2.1 The applicant was employed by first respondent as
an educator and as of the date of her dismissal on 31 July 2000 she
had been
in the first respondent’s employ for a period of 15
years;
2.2 She
alleges that she was admitted to hospital on 16 February 2000 on
account of illness the nature of which is not apparent
from the
papers. She was discharged in April 2000. She submitted medical
certificates and leave forms to the school principal
for the entire
period of her absence. Between 19 May 2000 and 5 June 2000 the
applicant again absented herself from duty due
to illness. Once
again allegations are made in the founding papers that medical
certificates were provided to the authorities.
On 6 June 2000 the
applicant alleges her son died, she obtained permission from the
school principal for leave to attend the
funeral, which was granted.
Shortly after the burial the applicant alleges she fell ill again
and was again booked off duty by
her doctor until 21 June 2000. The
school holidays followed and she returned to school only once school
re-opened. At that point
she was informed by the principal that her
services had been terminated due to her absence from work for a
period of more than
14 consecutive days in terms of Section 14(1)(a)
of the Employment of Educator’s Act;
2.3 On
20 June 2000 a letter was addressed to the applicant by the school
principal Mr Ramakau. This letter forms Annexure “AP1”
to the
papers, the contents of which read as follows:
“
RE:
ALLEGED MISCONDUCT
You,
Mpho Phenethi: Employed by the Department of Education therefore an
educator as defined in section 1(v) of the employment
of educator
act, 1998, act no. 76 of 1998, hereafter referred to as the act, are
hereby in terms of section 19(1) of the act, charged
with the
following misconduct: In that you are guilty of misconduct in terms
of section 17(1) of the act in that on 16 February
to 25 April 2000
and on 01 June 2000 till now at Nkgodise Primary School, you were
negligent or indolent in carrying out of duties
when you did not
attend to your class Grade 3B.
You are
hereby requested in terms of section 192) of the act; to send or
deliver a written admission or denial of the above- mentioned
charges, with which you are charged; within seven (7) days after
receiving this charge sheet. Such admission or denial and or
representation is to be made to: The Principal address as above.
Your
attention is drawn to the provisions of section 19(5) and 21(1) of
the act.”
2.4 Thereafter
on 21 July 2000 Ramakau addressed a further letter to the applicant.
The applicant acknowledged receipt of this
letter on the same day
i.e. 21 July 2000. This letter appears at Annexure “AP2” of the
papers:
“ALLEGED
ABSCONDMENT
It has
come to the attention of the Department that you have not reported
for duty at Nkgodise Primary School since 19 May 2000
up to date.
If you
do not report to school on or before Wednesday 26/07/2000, your
services will be terminated on the basis of abscondment
(absenting
yourself from duty without the permission from the employer.)
Yours
sincerely.”
The applicant refused to acknowledge receipt of
Annexure “AP2” and this resulted in a letter dated 27 July
2000 (Annexure
“AP3”) being written by the school principal to
the school management developer to that effect.
A third letter was finally sent to the applicant,
Annexure “AP6” dated 31 July 2000 which was a letter
terminating her
services in terms of section 14(1)(a) of the
Employment of Educators’ Act. That letter reads as follows:
“TERMINATION OF SERVICE
In terms
of
section 14(1)(a)
of the
Employment of Educators Act, 1998
(No. 76
of 1998) you are deemed to have been discharged from service on
account of misconduct from 19 May 2000, for being absent
from work
for a period exceeding fourteen (14) consecutive days without the
consent of the employer.
Please
be advised that if you are not satisfied, you have the right to
refer the matter to the Education Labour Relations Council
in terms
of
section 191(1)(a)
of the
Labour Relations Act, 1995
(No 66 of
1995), within 30 days from the receipt of this letter. The address
of the Labour Relations Council is as follows:
ELRC
Private
Bag X126
CENTURION
0046
Yours
sincerely”
The first two letters were addressed to the applicant
at her address at 17118 Bloemanda, Bloemfontein whereas Annexure
“AP6”
the letter of termination was handed to her when she
arrived at the school.
2.4 The respondents dispute that the applicant
furnished any medical certificates for the periods of her
absence nor did she
furnish any leave forms according to them.
According to the applicant she was summarily dismissed on 31
July 2000 despite
the fact that she had furnished medical
certificates to the principal which reflected that she had been
ill for the period
of the absence. On receipt of the letter
dated 31 July 2000 she did refer the matter to the Education
Labour Relations
Council for Conciliation which failed. She
then referred the matter for arbitration to the CCMA. The
arbitrator ruled that
the dismissal had occurred
ex
lege,
that is by operation of law and
accordingly he had no jurisdiction to have the dismissal set
aside.
2.5 The applicant then applied to the Constitutional
Court for direct access which was refused. As a result she
approaches
this Court for final relief.
2.6 There are disputes of fact on the papers in regard
to two matters. Firstly, in regard to the reasons for her absence
from
school and secondly, in regard to whether or not she was given
an opportunity to make representations. She alleges that she was
not given an opportunity to make representations prior to being
dismissed. The respondent alleges that the applicant was given
an
opportunity to make representations and that this happened at a
stage when the matter was already in the Constitutional Court
but
before judgment was given by that Court. The applicant refused to
avail herself of the opportunity, even after she was notified
that
the Constitutional Court had refused to entertain her application.
Despite being invited to make representations at that stage,
she
directly launched the present application.
[3] I deal first with the constitutional issues raised
by the applicant.
section 14(1)(a)
read with
section 14(1)(d)
and
section 14(2) of the Employment of Educators’ Act reads as
follows:
“14(1) An educator appointed in a permanent capacity who –
(a) is absent from work for a period exceeding 14 consecutive days
without permission of the employer;
(b) ……..
(c) ……..
(d) while disciplinary steps taken against the educator have not yet
been disposed of, resigns or without permission of the employer
assumes employment in another position,
shall, unless the employer directs otherwise, be deemed to have been
discharged from service on account of misconduct, in the
circumstances
where –
(i) ……..
(ii) ……..
(2) If an educator who is deemed to have been discharged under
paragraph (a) or (b) of subsection (1) at any time reports for duty,
the employer may, on good cause shown and notwithstanding anything to
the contrary contained in this Act, approve the reinstatement
of the
educator in the educator’s former post or in any other post on such
conditions relating to the period of the educator’s
absence from
duty or otherwise as the employer may determine.”
[4] The applicant contends that the fact that she was
given no hearing prior to her dismissal offends the
audi
alteram
principle. The provisions of section
14(1) and 14(2) give the employer a discretion in each case whether
or not to hold a hearing.
Under section 14(1) the words “unless
the employer directs otherwise” and under section 14(2) the words
“on good cause shown”
underpins this discretion. The fact that
the employer chooses not to avail himself of the discretion in favour
of the employee cannot
be used to impute the statute with
constitutional invalidity. The statute itself makes provision for
the rights of the employee
to be respected by way of the exercise of
a discretion. The question then becomes whether or not the employer
exercised that discretion
in a manner that is unconstitutional.
Whether the exercise of the discretion is obligatory or not, in my
view does not alter the
position that the statute does not blatantly
ignore the right of the employee to be heard. Where the exercise of
a discretion has
implications to the rights of the employee, it is in
any event difficult to regard the exercise of that discretion as
optional. For
present purposes whatever the nature of the discretion
to be exercised is not necessary to decide. Suffice to say that the
discretion
does not flagrantly disregard the rights of the employee
to fair labour practice and to justifiable administrative action.
4.2 On
behalf of the applicant Mr Khang has argued that the very fact that
the employer is vested with a discretion in terms of the
statute
promotes discrimination and arbitrariness as it is entirely dependent
on the whim of the employer as to which employee is
given a hearing
and which is not, and that therein lies the demon In order for the
statute to promote the rights to fair labour
practice and just
administrative action, he argues that it needs to be couched in
peremptory terms such as to allow an employee faced
with the
possibility of dismissal, to be given a hearing in each and every
case. He argues that there ought to be no question of
a choice being
exercised by the employer.
4.3 While
the statute may promote selectivity, in my view it cannot for that
reason alone be struck down as being unconstitutional
as ignoring the
rights to fair labour practice and administrative justice. It may be
that in the circumstances of the particular
case the exercise of the
discretion on the part of the employer not to grant a hearing amounts
to an unfair labour practice or unjust
administrative action, but
that would only be an incorrect exercise of the discretion afforded
the employer in terms of the statute.
It does not in my view taint
the constitutional validity of the statute itself. In this regard
also it must be remembered that
in the present case competing
considerations, namely that of the learner and that of the educator,
must of necessity play an important
role in the employer’s mind
when exercising the discretion.
[5] I turn now to consider whether the choice exercised
by the employer in the present case infringed the applicant’s
rights to
fair administrative action and fair labour practice.
5.1 It
was argued by the respondents’ counsel that it is for the employee
to make such representations as he/she wishes to make
and not for the
employer to invite representations. He argued that the applicant had
been advised that she could make representations
to the Education
Labour Relations Council in terms of the
Labour Relations Act 66 of
1995
, but that she had declined to do so. It is not clear why the
applicant was not invited to make representations immediately before
she was dismissed, that is before the letter dated 31 July 2000 was
handed to her, especially in light of the fact that her address
was
known to the respondents. The respondents have argued that by very
reason of her lack of response to earlier correspondence
and her
refusal to acknowledge receipt of the letter of misconduct dated 21
July 2000 (that is Annexure “AP2” to the papers)
there was no
point in assuming that any further invitation by the respondents
would not be met with the same blatant disregard. Under
these
circumstances, it was argued, the respondents could not be criticised
for assuming that the applicant was not interested in
resuming duties
and that she had deserted her post. The respondents also deny
receiving any medical certificates and according to
them were
completely in the dark as to the applicant’s condition.
5.2 Whether
the respondent exercised the discretion vested in him in terms of
section 14(1)(a) of the Act incorrectly must be decided
on the basis
of the facts of this particular case as found to be proved. This
requires an analysis of the ……. To establish
the probability of
the case. In doing so, even if I assume in favour of the applicant
that she submitted all medical certificates
and leave forms which she
was required to submit, it does not alter the fact that she was
informed that her absence was being viewed
as misconduct (Annexure
“AP1”). It was common cause that she had received Annexure “AP1”
the letter dated 20 June 2000,
but had ignored it. She made no
attempt to contact the authorities nor did she make any attempts to
write any representations informing
them of the circumstances of her
particular case and why she was not able to attend her post. It was
also not disputed that a month
later the respondents had addressed
another letter warning the applicant that she had not reported for
duties since 19 May 2000,
that she was at risk of having her services
terminated and placing her on terms to report within 5 days of that
letter (Annexure
“AP2”). The applicant refused to acknowledge
receipt of this letter but accepted a copy thereof as appears clearly
from the
letter annexed as Annexure “AP3” to the papers written
by the school principal.
5.3 I
reject as entirely improbable the applicant’s evidence that she
furnished medical certificates to the authorities concerned
for the
entire period of her absence. There is no mention whatsoever in the
founding papers as to why certificates are attached
for the period 22
May 2000 to 5 June 2000 and for 19 June 2000 to 21 June 2000 only and
why no mention whatsoever is made as to why
certificates for the
remainder of the period of her absence are not attached. In fact,
the impression is created that the applicant
is deliberately vague
and evasive on this score. Had she in fact been medically treated
for the remaining periods of her absence,
it would have been a simple
matter of annexing those certificates as well. The applicant was
well aware that her absence was being
viewed by the respondents in a
very serious light as implicit in the contents of Annexure “AP2”
was the suggestion that if she
could not report for duty on 26 July
2000 she ought to inform the respondents of her reasons to avoid
dismissal. She chose to ignore
this warning and not to make any
overtures to the respondents in regard to her reasons for her
absence. Had she genuinely not been
in a position to attend her
duties due to illness, then the opportunity was there for her to have
contacted the respondents either
by way of a letter, by telephone or
through the medium of a relative or a friend. To my mind the
applicant’s conduct smacks of
a blatant disregard of her
responsibilities. Such responsibilities involving as they did, the
education of young children must
be taken extremely seriously and her
absence caused a major disruption in the life of the young learners
in her charge. I find that
it was in the circumstances quite natural
for the respondents to form the belief and the opinion that she had
deserted her post and
that in the circumstances no further invitation
was necessary to the applicant to make representations prior to being
dismissed.
Moreover, in these circumstances I can find no reason why
the 1
st
respondent
should repeat the invitation to make representations, make any
further attempt to establish the whereabouts of the applicant
or
exercise his discretion in terms of section 14(1)(a) in favour of the
applicant.
[6] Substantively, there can be no doubt that desertion
is a ground for dismissal. One has to be careful however not to
confuse
mere absence with desertion, the one does not equal the
other. Mere absence is not conclusive evidence of desertion which is
absence
plus an intention not to return to duty. In the present
circumstances I find established on the probabilities, that the
applicant
deliberately absented herself from duty with the intention
not to return and for reasons best known to herself changed her mind
thereafter.
I am of the view that the applicant deserted her post
and I find therefore that her dismissal was substantively fair.
[7] In considering the issue of procedural fairness I
deal with the
audi
- principle
as a facet of dismissal in the context of desertion. Procedurally
the question is whether in these circumstances the
respondent was
required to convene a hearing before deciding to allow the deeming
provision to operate. The obligation on an
employer to hold a
hearing before dismissing an employee for abscondment or desertion
has been extensively traversed under the
Labour Relations Act 66 of
1995. (Schedule 8 and paragraph 4 of the Code of Good Practice.)
See
also
South African Broadcasting Corporation
v CCMA &
Others
2001(4) BLLR 449 (LC) at p 454 J.
The
correct approach seems to be that where adequate warning is given of
the consequences of extended absence without an explanation,
the
employer is relieved of the obligation to hold a hearing. The real
issue is whether adequate warning has been given in that
all
reasonable efforts have been made to contact the employee. The
conclusion I come to in the present case on the present set
of
circumstances is that proper and adequate warning was in fact given
by the first respondent to the applicant and that being
so the
applicant’s dismissal was procedurally fair.
[8] In the result I find that the first respondent
exercised the discretion vested in him in terms of
section 14(1)
of
the
Employment of Educators’ Act No. 76 of 1998
correctly,
properly and fairly and I accordingly make the following order:
1. The
application is dismissed.
2. The
applicant is ordered to pay the costs of the application.
______________
S.
EBRAHIM, J
On behalf of Applicant:
Mr
M. Khang
instructed
by
Mapitse
& Khang Attorneys
BLOEMFONTEIN
On behalf of Respondents:
Mr
IP Gough
State Attorney
BLOEMFONTEIN
/ec