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[2012] ZALAC 14
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Public Servants Association of South Africa obo De Bruyn v Minister of Safety and Security and Another (JA91/09) [2012] ZALAC 14; [2012] 9 BLLR 888 (LAC); (2012) 33 ILJ 1822 (LAC) (15 May 2012)
13
REPUBLIC OF SOUTH
AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No: JA91/09
In the matter between:
PUBLIC SERVANTS
ASSOCIATION OF
SOUTH AFRICA obo P W J
DE BRUYN
….....................................................
Appellant
and
MINISTER OF SAFETY AND
SECURITY
….......................................
First
Respondent
NATIONAL COMMISSIONER
SOUTH
AFRICAN POLICE SERVICE
….....................................................
Second
Respondent
Heard: 11 November
2010
Decided: 15 May 2012
Summary: The labour
court will not entertain an application, in terms of s 158(1)(h) of
the LRA, to review “any act performed
by the State in its
capacity as employer” as a matter of course. Other elements of
the system of dispute resolution which
the LRA has put in place may
restrict or limit recourse to review and also other applicable
statutes. Section 157(5) of the LRA
is applicable to a dispute about
incapacity leave and such a dispute must be resolved through
arbitration.
___________________________________________________________________
JUDGMENT
MLAMBO JP
Introduction
[1]
This
is an appeal against the judgment and order of the Labour Court
(Molahlehi, J) which dismissed the review application brought
by the
appellant for lack of jurisdiction on the part of the Labour Court.
The parties
[2]
The
appellant, (“PSA”), acts on behalf of its member PWJ de
Bruyn (“De Bruyn”).
[3]
The
respondents are the Minister of Safety and Security of the Republic
of South Africa and the National Commissioner of the South
African
Police Service (“SAPS”) respectively.
Factual Background
[5]
De
Bruyn has been employed by SAPS since 18 April 1980. At all material
times he was employed as a senior superintendent in the
Polokwane
area, Limpopo Province. He was at the relevant time the section head
in personnel services.
[6]
He
was booked off sick from 19 July 2004 on the grounds of major
depression. Pursuant to an instruction contained in a letter dated
3
March 2006 from the SAPS Divisional Commissioner Personnel: Service
terminations and behaviour management, he resumed duties
on 20 March
2006 as Section Head: In-service Training: Skills Development
Facilitator and Administration.
[7]
On
28 February 2005,
De
Bruyn submitted an application for retirement on the grounds of ill
health together with supporting documents. He had also submitted
applications for temporary incapacity leave for various periods from
September to December 2004 and from January to May and August
to
November 2005. According to the appellant, De Bruyn submitted further
applications for incapacity leave after August 2005.
[8]
With
regard to the ill-health retirement application, De Bruyn was advised
by SAPS in a letter dated 3 March 2006,
inter
alia
,
that:
‘
[t]he
findings and recommendations of the Health Risk Manager as well as
reports from the treating doctor have been considered.
It was decided
that the employee must resume duties in an alternative post on or
before 2006-03-13 which is supportive and best
suit his health
status.’
and that
‘
[t]he period
of absence, if any, as well as the determination thereof will be
dealt with by Head Office: Leave Management.’
[9]
Further, in a letter
dated 24 March 2006,
the
Divisional Commissioner Personnel Service: Service Terminations and
Behaviour Management advised that after consideration of
the minutes
of a board of inquiry, dated 31 March 2005, as well as available
information and medical evidence, it was decided that
the illness
(Post Traumatic Stress Disorder, Major Depression, Acute Stress and
Depression) was not regarded as ‘an illness:
in the performance
of his official duties, due to the fact that incidents such as work
pressure, personal conflicts between colleagues
or between the
commander and the subordinate is not regarded as an incident arising
from the performance of official duties. The
employee must be exposed
to an extreme traumatic event or stressor.’
The
question of the period of leave of absence was to be dealt with by
Head office: Leave Management.
[10]
In
respect of his application for temporary incapacity leave, De Bruyn
was advised by the head of personnel services in the Limpopo
province
in a letter, dated 5 June 2006 that the period 9 September 2004 to 24
February 2005, was approved and the period 25 February
2005 to 19
March 2006 disapproved. According to the respondents,
the decision to
approve/disapprove the application for temporary incapacity leave was
taken on 15 May 2006. It is this decision
that forms the subject
matter of the dispute between the parties.
[11]
On
13 June 2006,
De
Bruyn addressed a letter to the second respondent in terms of which
he sought clarity regarding the approval/disapproval of the
application for temporary incapacity leave. He expressed
dissatisfaction with the decision.
[12]
As
the matter remained unresolved, the Head of Personnel Services:
Limpopo Province referred the grievance to SAPS head office in
Pretoria. The office of Divisional Commissioner Personnel Services
handled the matter. A letter, dated 1 August 2006 signed by
the Head
of the Sub-section: Absenteeism Management, indicated that the second
respondent stands by his decision. Further that
the period was not
approved due to the fact that it was a labour related matter.
[13]
De
Bruyn was not satisfied with the outcome. He requested that the
grievance be referred to internal mediation. It appears that
mediation was attempted on 15 September 2006 under Superintendent
Mamosebo, the mediator. The outcome was that the second respondent
stood by his decision to disapprove the application for temporary
incapacity leave for the period 25 February 2005 to 19 March
2006.
[14]
De
Bruyn was dissatisfied with the outcome. On 12 October,
De Bruyn referred the
dispute regarding the disapproval of his application for temporary
incapacity leave, for the disputed period,
to the Safety and Security
Sectoral Bargaining Council (“SSSBC”). He characterised
the dispute as an unfair labour
practice. However, the dispute was
not pursued and consequently remained unresolved.
The Review Application
[15]
The
appellant approached the Labour Court for the review and setting
aside of the Commissioner’s decision to disapprove the
application by De Bruyn for temporary incapacity leave and the
decision to grant him unpaid leave. The appellant also sought an
order for costs.
[16]
The
appellant contends, in its founding affidavit, that De Bruyn is being
prejudiced:
‘
because of
the period of approximately 1 year between the ill health retirement
application and disapproval thereof, which is submitted
constituted
an unreasonable delay;
by the decision that temporary
incapacity leave had been granted for the period 6 September 2004 to
24 February 2005 but not for
the period 25 February 2005 to 19 March
2006; and
by the period of approximately 1 year
between the medical board decision that his illness was not work
related and the communication
of that decision to De Bruyn, which is
submitted constituted unreasonable delay.’
The appellant also
complains that “there is no fair and valid reason for
disapproving a portion of the temporary incapacity
leave but
approving another portion thereof.”
The
appellant characterises the delay as grossly unreasonable,
alternatively arbitrary and alternatively unjustifiable.
[17]
It
submits that the decision to disapprove temporary leave for the
period 25 February 2005 to 19 March 2006 and to grant 180 days
unpaid
leave retrospectively should be reviewed and set aside on the grounds
that:
‘
the action
was procedurally unfair;
in taking the decision irrelevant
considerations were taken into account or relevant considerations
were ignored;
the action/decision was taken
arbitrarily or capriciously;
the decision was grossly unreasonable;
and/or
the decision is unconstitutional in
that it constitutes an unfair labour practice.’
[18]
The
respondents, in opposing the application, raised two points
in
limine,
i.e.
that the Labour Court
a
quo
did
not have jurisdiction to hear the matter in terms of section 24 of
the Labour Relation Act 66 of 1995 (the LRA); and that the
application was premature as the statutory and agreed remedies had
not been exhausted. In its replying affidavit the appellant
denied
that the Labour Court did not have the necessary jurisdiction to hear
the matter. It contended that the matter did not concern
the
interpretation or application of a collective agreement; that the
matter was not based on an alleged entitlement to a period
of
temporary incapacity leave but that the dispute related to
administrative action that is unreasonable or otherwise unlawful.
The
appellant accepts that the respondents have a measure of discretion,
because the collective agreement states that paid temporary
disability leave ‘may be granted’. But, it contended that
‘in taking the decision to the detriment of De Bruyn
the
respondents took unreasonably long and acted procedurally unfairly’.
Further, that the
application was based on administrative review as contemplated in
section 158(1)(h) of the LRA.
The Labour Court
decision
[20] After analysing the
evidence placed before it and considering the relevant authorities,
the Labour Court upheld the jurisdictional
point and dismissed the
application. The court concluded:
‘
In the light
of the above discussion, in my view, leave, including incapacity and
temporary incapacity leave at the respondents’
workplace is
governed by the provisions of resolution 5 of 2001 of the PSCBC,
which is a binding collective bargaining agreement.
The
appropriate forum to challenge the decision of the second respondent
refusing the employee special paid leave or temporary incapacity
leave is not administrative action or the exercise of a public power
as contemplated PAJA. In refusing to grant the employee special
leave
or temporary incapacity leave the [second] respondent was exercising
a discretion provided for and governed by resolution
5 of the PSCBC.
It is therefore my view that the cause of action for the applicant
rests in the application and/or interpretation
of the provisions of
the PSCBC resolution. The appropriate forum for that is the PSCBC,
through its dispute resolution mechanisms.
Thus the employee’s
application stands to be dismissed for that reason.’
The Appeal
[21] It was argued on
behalf of the appellant that the Labour Court has jurisdiction to
hear the matter by virtue of the provisions
of section 158(1)(h).
Counsel for the appellant took issue with the Labour Court’s
reasoning and the conclusion that the
appellant’s cause of
action rests in the provisions of the PSCBC resolution. He submitted
that the collective agreement does
not provide a remedy and that even
if it is accepted that it does, it does not affect or exclude the
jurisdiction of the Labour
Court in that the appellant is not
pursuing the claim in terms of the collective agreement but via a
review based on section 158(1)(h)
of the LRA.
[22] It was argued
further that an employee is entitled to fair labour practices as set
out in section 23 of the Constitution of
the Republic of South Africa
Act of 1996 (“the Constitution”), that the right to fair
labour practices is enforceable
under the provisions of section
158(1)(h), and that the claim is not based on the Promotion of
Administrative Justice Act 3 of
2000 (PAJA). Nor, so it is contended,
is the relief claimed premised on the provisions of PAJA and is in
that sense distinguishable
and further that the rule that an
applicant in a review should first exhaust his internal remedies does
not apply as the appellant
has a choice between remedies as in the
present matter, on the assumption that the collective agreement
provides a remedy. Reliance
was placed,
inter
alia,
on
the decision in
Makhanya
v The University of Zululand.
1
[23] Counsel for the
respondents submitted that the conclusion by the Labour Court,
regarding its lack of jurisdiction, was correct,
having regard to the
cause of action and that the grounds of review set out in the
founding affidavit are premised on the provisions
of section 6 of
PAJA. It was further argued that in view of the fact that the
decision under consideration is not administrative
action as
envisaged in PAJA the Labour Court was not clothed with the necessary
jurisdiction to hear the review application. Counsel
relied,
inter
alia
,
on the decisions in
Chirwa
v Transnet Ltd
2
and
Gcaba
v Minister for Safety and Security and Others
.
3
Evaluation
[24] The crux of the
appeal before us is whether section 158(1)(h) of the LRA confers
jurisdiction on the Labour Court to hear an
application for the
review of the decision of the second respondent not to grant De Bruyn
temporary incapacity leave for the disputed
period.
[25] Section 158(1)(h)
provides:
‘
The Labour
Court may –
...
(h) review any decision taken or any
act performed by the State in its capacity as employer on such
grounds as are permissible in
law.
...’
[26] The review powers
entrusted to the Labour Court in terms of section 158(1)(h) must be
understood in the context when this section
(indeed the entire LRA)
was enacted. At that time, the employment of public servants was
regulated by the common law contract of
employment, the unfair labour
practice jurisdiction of the industrial court in terms of the Labour
Relations Act 28 of 1956, other
statutes and by means of common law
judicial review.
[27] Public servants were
in a privileged position with regard to other employees as their
choice of remedies extended to judicial
review. Section 158(1)(h) was
intended to preserve the common law judicial review remedy of public
servants. The permissible grounds
of common law review are well
known.
[28]
The supposition, that public servants had an extra string to their
bow in the form of judicial review of administrative action
i.e. acts
and omissions by the state
vis-à-vis
public servants, evaporated when the
Constitutional Court in
Chirwa
v Transnet Ltd and Others,
4
held that the dismissal of a public
servant was not ‘an administrative act’ as defined in
PAJA and therefore not capable
of judicial review in terms of that
Act.
5
Any uncertainty regarding the
interpretation of the
Chirwa
judgment was removed in the
subsequent decision in
Gcaba
v Minister for Safety and Security and Others
.
6
The result is that a public servant is
confined to the other remedies available to him or her.
[29]
One of the effects of
Chirwa
is that a dismissal is not to be
regarded as an ‘administrative act’ by the State but
merely as the act of the State
in its capacity as an employer. This
decision brought us to the situation where the pre-
Chirwa
substratum of section 158(1)(h) fell
away, although there may conceivably still be employer acts which are
almost indistinguishable
from administrative acts. The post-
Chirwa
meaning of section
158(1)(h) has received the attention of the Labour Court in
De
Villiers v Head of Department: Education, Western Cape Province
,
7
SA Revenue Service v Commission for
Conciliation, Mediation and Arbitration and Others,
8
(and
National
Commissioner of Police and Another v Harri NO and Others
.
9
[30] But it does not
follow that because the remedy of judicial review may still exist for
public servants that the labour court
will entertain an application
to review ‘any act performed by the State in its capacity as
employer’ as a matter of
course. Recourse to review
proceedings, in terms of section 158(1)(h), takes place in the
context of the law relating to judicial
review as well as the other
elements of the system of dispute resolution which the LRA has put in
place and also other applicable
statutes.
[31] One limitation or
restriction is relevant to the case at hand. The LRA may oust the
section 158(1)(h) review jurisdiction of
the Labour Court. Section
157(5) of the LRA, as the court
a quo
appreciated, provides
that if the LRA requires an unresolved dispute to be resolved through
arbitration, the Labour Court does
not have jurisdiction to
adjudicate the dispute. Notwithstanding this, the Labour Court could
acquire jurisdiction in terms of
section 158(2) of the LRA but such a
situation does not arise in this case.
[32] On a careful
analysis of the facts in the present case the appellant’s
claim, to the effect that an employee’s
right to a fair labour
practice was allegedly infringed by the second respondent’s
conduct in refusing to grant De Bruyn
temporary incapacity leave for
the contended period is derived from the LRA. It asserts that in
terms of section 158(1)(h) of the
LRA the Labour Court may review
such decision, or any act performed by the State in its capacity as
employer, on such grounds as
are permissible in law. This is the case
that the court
a
quo
had
to deal with it.
[33] The appellant’s
complaint clearly concerns the denial of incapacity leave. The
alleged right the appellant seeks to assert
derives from the
provisions of the PSCBC resolution as the Labour Court, correctly in
our view, found. The resolution deals with
leave of absence and what
steps an employee should take in case of a dispute arising regarding
attendant matters.
There
is no doubt that the aspect of leave of absence is an issue falling
squarely under the PSCBC resolution. In deciding whether
the relief
sought ought to be granted the court
a
quo
had
to have regard to the provisions of the resolution.
[34]
Therefore, the court
a quo
(although of the opinion that the
application before it was in terms of section 158(1)(g) of the LRA)
correctly proceeded to consider
whether the LRA required the kind of
dispute which existed between the appellant and the respondent to be
resolved through arbitration.
The court concluded that leave,
including incapacity leave and temporary incapacity leave at the
respondent’s organisation,
is governed by the provisions of
Resolution 5 of 2001 of the PSCBC, which is a binding collective
bargaining agreement. This means
that the dispute between the parties
was required to be submitted to arbitration as it concerned the
application and/or interpretation
of the provisions of the PSCBC
resolution.
[35] The LRA regulates
and provides the regime as well as the mechanism to deal with
disputes of this nature. Section 24(1) and
(2) of the Act provides
that:
‘
(1) Every
collective agreement excluding an agency shop agreement concluded in
terms of section 25 or a closed shop agreement concluded
in terms of
section 26 or a settlement agreement contemplated in either section
142A or 158(1)(c) must provide for a procedure
to resolve any dispute
about the interpretation or application of the collective agreement.
The procedure must first require the
parties to attempt to resolve
the dispute through conciliation and, if the dispute remains
unresolved, to resolve it through arbitration.
(2) If there is a dispute about the
interpretation and application of a collective agreement any party to
the dispute may refer
the dispute in writing to the Commission if—
the collective agreement does not
provide for a procedure as required by subsection (1);
the procedure provided for in the
collective agreement is not operative; or
any party to the collective
agreement has frustrated the resolution of the dispute in terms of
the collective agreement.’
[36]
It follows therefore that where an employee, such as De Bruyn, is
dissatisfied with a decision by the employer with regard
to the issue
of leave of absence, as is the case
in
casu
, his remedy lies in
the provisions of the resolution.
10
It follows that the appellant is
confined to its remedy in terms of section 24 of the LRA and it may
not, instead, seek to review
the respondent’s decision in the
Labour Court in terms of section 158(1)(h).
11
I
t
may also be stated that once the dispute resolution mechanisms in
terms of the resolution were initiated, as was the case in this
matter, the dispute was effectively committed for resolution in terms
of section 24 of the LRA. The result is that the abandonment
of that
process in favour of the review based on section 158(1)(h) was ill
conceived and, as we hold in this matter, was also ill
fated.
Conclusion
[37] In the
circumstances,
the
appeal cannot be upheld.
[38] There is no reason,
in our opinion, why the costs should not follow the event.
Order
[39] Accordingly, the
appeal is dismissed with costs.
_________________
Mlambo JP
Mailula AJA and Landman
AJA concur in the judgment of Mlambo JP
APPEARANCES:
FOR THE APPELLANT: Adv H
van der Merwe
Instructed by Martins
Weir-smith Inc
FOR THE RESPONDENT: Adv N
H Maenetja
Instructed by Bowman
Gilfillian Inc
1
2010
(1) SA 62
SCA.
2
[2007] ZACC 23
;
2008
(4) SA 367
CC.
3
2010
(1) SA 238
CC.
4
(2008)
29 ILJ 73 (CC).
5
Chirwa
at para 73.
6
(2010)
31 ILJ 296 (CC
) at paras 67 and 68.
7
(2010)
31 ILJ 1377 (LC).
8
2010)
31 ILJ 1238 (LC)
9
[2010]
ZALC 176
(LC) (19 November 2010).
10
See
Oelofsen and Another v SA
Police Service
(2006) 27
ILJ 639 BCA (PSCB Arb).
11
See:
Chirwa’s
case,
supra
;
and
Gcaba’s
case,
supra
.