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[2024] ZALCJHB 235
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Khumalo v MEC: Mpumalanga Department of Education (JR1144/20) [2024] ZALCJHB 235 (21 February 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No:
JR1144/20
In
the matter between:
MAFIKA EDWIN
KHUMALO
Applicant
and
MEC:
MPUMALANGA DEPARTMENT OF EDUCATION
Respondent
Heard
:
6 July 2023
Delivered
:
21 February 2024
JUDGMENT
MAKOPO, AJ
Introduction
[1]
Mr Mafika
Edwin Khumalo (the Applicant) was employed by the Department of
Education Mpumalanga (the Respondent) as an Educator.
He was deemed
to be dismissed in terms of Section 14(1)(a) of the Employment of
Educators Act
[1]
(EEA).
[2]
The Applicant brings a review application, to set aside his
dismissal on the grounds that his dismissal is unlawful.
[3]
The Applicant was represented by Mr Bayi
and the Respondent was represented by Advocate M Ngobeni–Moyana.
[4]
On the 4
th
of July 2023, the Respondent requested a postponement on the basis
that the Respondent’s Attorneys had withdrawn and Advocate
Ngobeni was now instructed by the State Attorney to represent the
Respondent. I declined to hear the postponement as it was clear
that
the reasons advanced were not sound, instead, I stood the matter down
to the 6
th
of July 2023, at 14h00, in order for the counsel of the Respondent to
read the papers and prepare for arguments.
4.1
On the 6
th
of July 2023, counsel for the Respondent indicated she was indeed
ready to proceed.
Background facts
[5]
The review turns on two aspects:
5.1
Whether the decision to dismiss the
Applicant is reviewable or in the alternative; and
5.2
Whether any decision was made at all.
[6]
Both parties required condonation of the
Applicant for the late filing of the review and the Respondent for
the late filing of the
answering affidavit.
[7]
I ruled that the matter could proceed on
the merits without the need to deal with the condonation applications
as the matter was
in fact ready in this respect.
[8]
On
the merits of the matter, the Applicant seeks a review in terms of
Section 158(1)(h) of the Labour Relations Act
[2]
(LRA).
[9]
It is common cause that the Applicant had
absented himself from his employment from the 4
th
of December 2018 until the 27
th
of February 2019, without notifying his employer of the reasons for
being absent from his employer.
9.1
On the 27
th
of February 2019, at about 16h00, the Applicant received a call
informing of the hearing at the Reginal Office, the following day
at
08h30.
9.2
The Applicant, attended the meeting and
made a presentation to the Chairperson as contemplated in Section
14(1)(a) of the EEA.
9.3
At that meeting the Applicant presented a
medical certificate, indicating that he was booked off work from the
11
th
of December 2019 to the 2 April 2019 (this medical certificate was
not included in the bundles before this Honourable Court).
9.4
The recommendation from the Chairperson,
according to the Applicant was only communicated to him on the 21
st
of May 2019.
9.5
This assertion goes against annexures ‘LH1’
and ‘LH2’ found on pages 51 and 52 of the paginated
papers.
[10]
I enquired from Mr Bayi if he had sight of
the medical certificate as filed or presented to the Chairperson of
the meeting, he indicated
that he also had not had sight of that
document, there were no details given where the Applicant obtained
treatment i.e, names
of the hospital or treating doctors of any
document supporting his reasons from being absent from work.
10.1
In
Member
of the Executive Council of the Department of Education Western Cape
Government v Jethro N.O and Another
[3]
,
a decision of the Labour Appeal Court dealt with the provisions of
Section 14(1) and (2) of the EEA:
‘
[41] A
letter informing an employee of his or her deemed discharge by
operation of law under section 14(1) of the EEA involves
no decision
or exercise of a public power, and thus cannot constitute
administrative action; but a decision taken under section
14(2) of
the EEA constitutes an exercise of a statutory power and the
performance of a public function by the Department. It is
a decision
of an administrative nature (as opposed to an executive, legislative
or judicial nature), which is informed by policy
considerations
regarding efficiency, and may adversely affect the rights of persons
outside the Department, such as the respondent.
The decision cannot
be challenged under Chapter VIII of the LRA because it does not
constitute a dismissal as defined in section
186(1) of the LRA - the
dismissal having been deemed and the decision in terms of section
14(2) of the EEA being concerned solely
with a request for
reinstatement on good cause. The decision likewise cannot constitute
an unfair labour practice under section
186(2) of the LRA because it
does not relate to the rights and interests protected by that remedy.
In the premises, a decision
by the Head of Department, charged with
the exercise of a statutory discretion to reinstate on good cause
shown by an employee
deemed to have been discharged, constitutes
administrative action reviewable in terms of PAJA. The Labour Court
accordingly did
not err in its finding in that regard.’
[11]
The Applicant did not put me in a position
where I could come to his aid to be able to determine that indeed he
had shown good cause
for being absent from his employment from the
period of the 4
th
of December to the 27
th
of February 2019.
[12]
The
Applicant argued that there was no decision taken by the Applicant,
and relied on the Public Service Act
[4]
(PSA), the Applicant’s submissions and reliance on the PSA are
misguided based on the papers filed and submissions made at
the
hearing of the matter.
[13]
It is clear that the relevant legislation
in this matter is the EEA as the Applicant had absented himself from
his employment for
a period of almost 2 months.
[14]
The Applicant was invited by the Respondent
to make representation, the offer was declined at the hearing of the
matter and counsel
for the Respondent argued that in the event that
the Applicant persists that there was no decision that was made, the
Applicant
cannot succeed in the review.
[15]
The simple point and on the common cause,
the facts are that the Applicant had absented himself from his
employment from the 8
th
of December 2018 until the 27
th
of February 2019, a meeting was held after he received the notice in
terms of Section 14(1)(a) of the EEA, the Chairperson found
that he
had not shown good cause, the Applicant argues that the decision to
dismiss him can only be taken by the Respondent.
[16]
Section
14 of the EEA is
headed: “
Certain
educators deemed to be discharged”
.
It provides as follows:
‘
(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) while the
educator is absent from work without permission of the employer,
assumes employment in another position;
(c) while suspended
from duty, resigns or without permission of the employer assumes
employment in another position; or
(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) paragraph (a)
or (b) is applicable, with effect from the day following immediately
after the last day on which the educator
was present at work; or
(ii) paragraph (c)
or (d) is applicable, with effect from the day on which the educator
resigns or assumes employment in another
position, as the case may
be.
(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
re-instatement 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.’
[17]
In
Hayes
v National Minister of Police N.O and Others
[5]
,
Moshoana J discusses Section 158 (1)(h) of the LRA. In paragraph 20,
it was held that:
‘
[20] An
applicant for review is obligated to provide a Court of review with
the material that served before the decision maker,
particularly
where the rationality of the decision is impugned. Otherwise, how can
a Court of review assess rationality or otherwise
in the absence of
the material that served before the decision maker?’
[18]
In
NEHAWU
obo Ngomane v Department of Employment and Labour and Others
[6]
,
Van
Niekerk J deals with the provisions of Section 158(1)(h), in terms of
which the court is empowered to review any decision taken
by the
state in its capacity as employers, on any grounds that have
permissible in law.
[19]
He argued that there was no decision
therefore, his dismissal is unfair (the Respondent’s counsel
agreed with the submission
from the Applicant).
[20]
I am unable to assist the Applicant and I
indicated I was not provided with the documents relevant to the
decision.
[21]
In the result, I find the Applicant has
failed to make out a case for review in the papers before me.
[22]
As a result, I make the following order.
Order
1.
Accordingly, the application for review is
dismissed.
2.
There is no order as to costs.
N Makopo
Acting
Judge of the Labour Court of South Africa
Appearances
For the
Applicant:
Mr Bayi
Instructed
by:
Bayi Attorneys
For the
Respondent: Adv
M Ngobeni – Moyana
Instructed
by:
State Attorney
[1]
Act
76 of 1998.
[2]
Act
66 of 1995, as amended.
[3]
[2019]
ZALAC 38
; (2019) 40 ILJ 2318 (LAC).
Act
103 of 1994.
[5]
[2023]
ZALCCT 23;
[2023] JOL 59307
(LC).
[6]
[2022]
ZALCJHB
45; [2022] JOL 52963 (LC).