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[2007] ZALAC 23
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Head of the Department of Education (Free State Province) v South African Democratic Teachersâ Union and Another (JA 68/05) [2007] ZALAC 23 (27 September 2007)
15
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Case
no: JA 68/05
IN
THE MATTER BETWEEN:
The
Head of the Department of Education
(Free
State Province) Appellant
And
South
African Democratic
Teachers’
Union First respondent
Sithole,
S M
Second
respondent
Judgment
TLALETSI
AJA
Introduction
[1.1] This
appeal is against the whole of the judgment of the Labour Court given
by
Kruger AJ
in a review application concerning a dispute
between Head of the Department of Education: Free State Province, the
appellant herein,
and the respondents about the fairness of an
alleged dismissal of the second respondent (“the educator”)
who was at
all relevant times a member of the South African
Democratic Teachers Union (“the first respondent”).
[1.2] There
is an issue that must be disposed of before the merits of the appeal
are considered. I discovered that the party that
was cited as the
appellant in this case was the Member of the Executive Council for
Education: Free State Province (“the
MEC”). It is common
cause that the MEC had not been a party in these proceedings. The
dispute has always been between the
respondents and the Head of the
Department. There had also not been any application for intervention
brought by the MEC. This issue
was taken up with Counsel for the
appellant. He was not aware of this problem and could as a result not
provide us with any explanation.
The appellant was granted leave to
bring an application to regularise the situation.
[1.3] We
have since received a substantive application to substitute the MEC
with the Head of the Department. In the affidavit supporting
the
application the appellant attributes the confusion to the office of
the State Attorney in that they typed MEC in the position
of the Head
of the Department. The application for substitution is not opposed.
In my view a proper case for substitution has been
made and is
accordingly granted.
FACTUAL
BACKROUND
[2] The
dispute was arbitrated by an arbitrator of the Education Labour
Relations Bargaining Council (“the ERLC”) which
was cited
as the first respondent in the Labour Court. In the award, which was
the subject of the review application, the arbitrator
found that the
educator had been dismissed and that his dismissal was substantively
fair. He made no order as to costs.
[3] In
the review application the Labour Court held that the award was
reviewable and set it aside and ordered that the matter be
remitted
to the ELRC for arbitration by a different arbitrator. It is against
this judgment that the present appeal was noted.
[4]
The educator was employed by the appellant in a permanent capacity
from 01 January 1998 and was based at Phiritona High School,
Hebron,
where a certain Mr Mazibuko was headmaster. On 28 January 2002 the
educator was attacked, assaulted and sustained injuries.
On 30
January 2002 he consulted Dr H R Gani, who diagnosed that he had
sustained a fracture on the tenth right rib. He booked him
off duty
until 05 February 2002. He was to resume duties on 06 February 2002.
[5] On
05 February 2002 the educator consulted Dr J S Mostert for the same
injury and the latter booked him off duty until 08 February
2002. He
was, therefore, to return to work on 09 February 2002. On 11 February
2002 the educator consulted Dr Van der Merwe with
respect to an
injury to his right hand. Dr Van der Merwe booked him off sick until
Thursday 14 February 2002. However, a copy of
the medical report
issued by Dr Van der Merwe reflected that he was booked off sick for
one week being from 11
th
to the 18
th
February
for the injuries to his right hand. The date of the report, which was
handed in as exhibit ‘C’ in the subsequent
arbitration,
reflects the date of issue as “11/02/03”. Dr Van der
Merwe was not called to testify although it was the
respondent’s
initial intention to call him. He was subpoenaed and failed to
attend. The appellant tendered no evidence to
challenge this piece of
evidence. Nothing turns on this aspect in view of the issue to be
decided below in this judgment. The above
meant that the educator was
absent from work for the period 28 January to 18 February 2002. This
meant that he was absent from
work for more than 14 consecutive days.
It is common cause that he had not obtained permission for his
absence from work.
[6] It
is not clear from the educator’s own version when he returned
to work. It was mentioned by his legal representative
during his
evidence in chief that he reported for duty on 18 February 2002. The
educator, however, did not directly confirm this
version. During
cross examination when he was asked exactly when he had reported for
duty again, he only mentioned that sometime
during the ‘process’
of his sick leave he had gone to the school to notify the headmaster
that he was on sick leave
and was told by the headmaster that he was
not going to recognise that leave. He testified that on this
occasion, he was also informed
that he was no longer required because
he had deserted and that the headmaster also refused to accept the
medical certificates
relating to his absence. He did not, however,
mention, despite being asked on more than three occasions by the
appellant’s
representative and as well as the arbitrator, when
he reported for duty. On this aspect, the headmaster testified that
the educator
only reported for duty on the morning of 09 April 2002
when he complained about the injury on the right hand. He said that
he requested
the educator to supply him with medical reports and the
latter undertook to do so. He said that the educator failed to submit
the
medical report on the 10
th
, the 11
th
and
the 12
th
despite his undertaking to do so nor did he do so
later.
[7]
On 12
February 2002 the headmaster addressed a letter to
the Deputy Director: Department of Education. The body of the letter
reads:
“
ABSCONDMENT OF MR. SITHOLE S.M (11228148)
Kindly note that the above-mentioned educator Mr Sithole has not been
reporting for duty since this date 28
th
January
2002 to 11
th
February 2002, without
permission. Note that his absence has tremendously affected teaching
and learning, that is more than 200
learners had n’t received
tuition for the period he’d been absent. Also note that the
said educator was charged with
unauthorized absence previously.
Therefore as the head of the institution, I strongly move that he
should be charged with abscondment,
with immediate effect. Hoping
you find this in order.”
It
is common cause that this letter was written and forwarded during the
educator’s absence from school. The headmaster testified
that
the reason why he wrote this letter to the head of the department was
that there was no medical report submitted and as such
the educator
was not on official leave. He testified further, under
cross-examination, that he would have been prepared to ignore
his
letter had the educator submitted the medical reports. Under
cross-examination the headmaster was asked why in the letter he
wrote
that the educator was absent only on the days reflected. He replied
that the dates covered the fourteen days period which
was sufficient
for a discharge according to the training he received.
[8] On
20 February 2002 the appellant addressed a letter to the educator.
The letter read thus:
“Termination
of Service
In
terms of section 14(1) (a) of the Employment of Educator’s Act
1998 (No 76 of 1998) you are deemed to have been discharged
from
service on account of misconduct with effect from the 28
th
of January 2002 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 19(1) (a) of the Labour Relations Act 1995(No.66 of
1995), within 30 days from the receipt of this letter.
The address is
as follows:
ELRC
Private
Bag X 12
CENTURION
0046
Yours
sincerely”
It
is common cause that the educator did not receive this letter
immediately. According to the educator, which was not disputed,
this
letter was only delivered at his home on 12 April 2002. The appellant
did not dispute this.
Arbitration
Proceedings
[9] In
the arbitration proceedings the main contention on behalf of the
educator was that he should be reinstated because during
the period
of absence he had been on sick leave. It was contended on behalf of
the appellant that the effective period of non-attendance
was fourty
one working days, and that the fact that the educator had consulted
three different medical doctors was indicative of
an ulterior motive
on his part and that he should have returned to work immediately
after the initial six days period because he
was not doing manual
work at school. It was finally contended that the ‘dismissal’
of the educator was fair.
[10] In
the award the arbitrator reasoned that an educator who was absent
from work without the consent of his/her employer was
deemed to have
been discharged from service in terms of section 14(1) (a) of the
Employment of Educators Act 76 of 1998 (“EEA”)
at
the expiry of 14 consecutive days. He held that for the deeming
provision not to come into effect there must be consent from
the
employer. The arbitrator held further that the subsection imposes an
obligation on educators to obtain the consent of the employer
before
they absent themselves. He finally held that the educator’s
‘dismissal’ was under the circumstances of
this case
substantively fair.
Proceedings
in the Labour Court
[11] In
response to the educator’s application to have the Labour Court
review and set aside the arbitrator’s award,
the appellant
raised a point
in limine
to the effect that the court lacked
jurisdiction to determine the dispute because there had been no
dismissal in this case as the
services of the educator had been
terminated by operation of law in terms of section 14(1) (a) of the
EEA. The Labour Court found
that on the facts before it there was in
fact a decision to dismiss and that the arbitrator did not address
the fairness of the
dismissal on the facts. In support of its
conclusion that there had been a dismissal, the court
a quo
said
that there had been a delay in terminating the services of the
educator, that the headmaster wanted to speak to the educator first
before handing the letter from the head of the department to him and,
that the letter itself advised the educator to approach the
ELRC if
not satisfied. The Labour Court, thereafter, issued an order
reviewing and setting aside the award and remitting the matter
to the
ELRC for arbitration by a different arbitrator.
The
Appeal
[12] The
appellant sought leave to appeal to this court against the judgement
of the Labour Court but leave was refused. This Court
granted leave
to appeal after the appellant had petitioned the Judge President of
this Court. The appeal is opposed. In my view,
it is important to
determine whether a dismissal occurred in this case. This is a point
which was raised by the appellant in the
founding affidavit to the
review application. The appellant’s contention which was not
accepted by the Labour Court was to
the effect that the court lacked
jurisdiction as there was no dismissal. If it is found that there was
indeed no dismissal, the
disputes relating to the date of dismissal
as well as issues related thereto should fall away.
[13] Section
14 provides thus
:
“
certain
educators deemed to be discharged
(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.”
(My
emphasis)
[14] The
arbitrator reasoned, inter alia, that for the deeming provision not
come into effect there must be consent by the employer
and that it is
not enough for an educator to allege, after the expiry of fourteen
days that he or she had some valid reason for
being absent. The
arbitrator concluded that since the educator was physically capable
of informing his immediate superior of the
reasons for his absence
from work, and failed to do so, his ‘dismissal’ was
therefore substantively fair.
[15]
In my view, the argument that the Labour Court lacked jurisdiction to
determine the dispute is not correct. I say this because
what the
Labour Court had to consider is a review of the award of the
arbitrator. It had jurisdiction to do so. It is only the
arbitrator
that would not have had jurisdiction to determine the dispute if
there was indeed no dismissal.
[16] It
is clear from the wording of the above provisions that once an
educator who is appointed in a permanent capacity is absent
from work
without the permission of the employer for a period exceeding
fourteen consecutive days, s/he “shall, unless the
employer
directs otherwise, be deemed to have been discharged from service”.
The discharge takes place by operation of law.
The coming into
operation of the deeming provision is not dependent upon any
decision. This issue has been considered in decisions
such as:
Ntabeni v MEC for Education, Eastern Cape
(2002) (3) SA 103
(TKH); Nkopo v Public Health and Welfare Bargaining Council and
Another (2002) 23 ILJ 520 (LC); MEC for Public Works Northern
Province v CCMA and others
[2003] 10 BLLR 1027
LC; Maidi v MEC
Department of Education and Others (2003) 24 ILJ 1552 (LC)
(These cases have been referred to by the Labour Court in its
judgment). The Supreme Court of Appeal was also called upon to
consider
the provisions of section 14 (1) (a) in
Phenithi v
Minister of Education & Others (2006) 27 ILJ 477 (SCA)
.
The Court, in reaffirming the position as stated in
Minister
van Onderwys & Kultuur v Louw
[1994] ZASCA 160
;
1995 (4) SA 383
(A)
held
inter alia, that the discharge of the educator is not a consequence
of a discretionary decision and did not constitute an
administrative
action. The court further held that the provisions of section 14 (1)
(a) were not in conflict with
Section 188
of the
Labour
Relations Act 66 of 1995
and that they are not
unconstitutional. (at 486G-I and 487H)
[17] In
this case all the jurisdictional requirements for the provisions of
section 14
(1) (a) of the EEA to apply were in existence. These were
that the educator was absent from duty for a consecutive period
exceeding
fourteen days without the permission of the employer, and
that the employer had not directed otherwise. It was thereafter open
to the educator to approach the employer and request reinstatement in
terms of
section 14(2)
of the EEA provided its requirements are
satisfied. This section provides that:
“(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 determine”
[18] I
now proceed to consider the reasons advanced by the Labour Court to
support its conclusion that there was a dismissal. The
first reason
is that there had been a delay in issuing a letter dated 20 February
2002 to the employee. In my view, this reason
is misplaced because
for the provisions of section 14 (1) (a) to operate or for the
educator to be deemed to have been discharged,
it was not necessary
for him to be given any letter. That letter was not legally required
in order for the provisions of section
14 (1) (a) to become
operational. The second reason advanced was that the headmaster
testified that he waited so that he could
first talk to the educator
before he could give him the letter dated 20 February 2002. I am of
the opinion that this reason is
also misplaced because it is not
necessary for the employer to speak to the educator before section 14
(1) (a) could become operational.
[19]
The third reason advanced by the Labour Court is that the letter
advised the educator to approach the ELRC if aggrieved. I
am of the
opinion that this reason is not valid. I say this because by the time
that letter was written and later delivered to
the educator, the
provisions section 14 (1) (a) had long been triggered into operation.
Even if the letter had said to the educator
he was being dismissed,
such dismissal would have been ineffectual in law because by
operation of law he would already have been
deemed to be discharged
from service and an employer cannot dismiss somebody who in terms of
section 14 (1) (a) is deemed to have
been dismissed already. I note,
for what it is worth, that the letter concerned made it clear to the
educator that he was deemed
to have been
discharged
:
“….you
are deemed to have been discharged from service...”
The finding of the
court
a quo
that there was
a decision taken to terminate the services of the educator is
therefore incorrect. The letter from the appellant
did not, in my
view, contain any decision to dismiss but was merely the notification
of a result which occurred
ex
lege.
[20]
It was open to the appellant to have, in the
court a quo,
consented to the order reviewing the award of the arbitrator
while at the same time opposing an order that the matter be referred
to the bargaining council for arbitration
de novo,
on the
basis that the bargaining council lacked the necessary jurisdiction
to entertain the dispute. This view was canvassed with
the
appellant’s counsel during the hearing of the appeal and he
conceded that this would have been the correct approach.
It shall
therefore be appropriate to make an order along these lines in this
appeal.
[21] What
remains is the issue of costs. In my judgement it would accord with
the requirements of the law and fairness not to make
any order as to
costs in this matter.
[22]
In the result I make the following order:
1.
The appeal is upheld.
2.
No order is made with regard to costs on appeal.
3.
The order of the
court a quo
is set aside and replaced with
the following one:
(a)
The application is granted.
(b)
No order is made as to costs.
(c)The
award issued by the commissioner in this matter is hereby reviewed
and set aside and replaced with the following one:
“
The applicant’s claim for unfair dismissal is
dismissed for lack of jurisdiction.”
__________
Tlaletsi
AJA
I
agree.
_______
Zondo
JP
I
agree.
________
Waglay
JA
Appearances:
For
the appellant: Adv Soni SC
Instructed
by: State Attorneys
For
the respondent: Adv Van der Riet SC
Instructed
by: Cheadle Thompson & Haysom Inc
Date
of judgment: 27 September 2007