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[2012] ZALAC 28
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Grootboom v National Prosecuting Authority and Another (CA 7/11) [2012] ZALAC 28; (2013) 34 ILJ 282 (LAC); [2013] 5 BLLR 452 (LAC) (21 September 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, CAPE TOWN
Reportable
Case number: CA 7/11
In the matter between:
Derrick Grootboom
........................................................................................
Appellant
and
The National
Prosecuting Authority
................................................
First
Respondent
The Minister of
Justice and Constitutional
Development
................................................................................
Second
Respondent
Date of hearing: 08May
2012
Date of judgment: 21
September 2012
JUDGMENT
Tlaletsi JA
Introduction
[1]
This is an appeal against the judgment and order of the Labour Court
in an application brought by the appellant in that court
in terms of
section 158 (1)(h) of the Labour Relations Act
1
(“the Act”).
In this application,
the
appellant sought orders in the following terms:
1.1 Reviewing and setting
aside the decision made by the first respondent dated 7 February
2007;
1.2 In the alternative,
reviewing and setting aside the decision made by the second
respondent on 25 March 2008 and that the Labour
Court substitute the
decision of the second respondent with that of its own;
1.3 Directing first and
or second respondents to take all necessary measures to reinstate the
appellant as from the date of his
unlawful dismissal namely, 7
February 2007 and for such reinstatement to be effected within two
weeks of the order.
[2] The application was
opposed by the respondents. The Labour Court dismissed the
appellant’s application and made no order
as to costs.
Aggrieved by this decision, the appellant unsuccessfully applied for
leave to appeal in the Labour Court and only
obtained leave to appeal
from this Court pursuant to a petition to the Judge President of this
Court.
Factual Background
[3] The record consists
of five volumes and contains,
inter alia
, various
correspondence between the parties, some of which relates to matters
not strictly necessary for the purpose of this appeal.
I would
therefore confine this judgment only to those matters that provide
the relevant factual matrix necessary for the determination
of this
appeal. Most of these facts are, unless where otherwise indicated,
common cause.
[4] The appellant was
employed by the first respondent as a Public Prosecutor during 2001.
He was initially stationed at Springbok,
later Port Elizabeth and was
finally at his own request transferred to Upington from 2 February
2004. His functions entailed travelling
to various magisterial
districts around Upington as a “Relief Prosecutor”.
[5] In the course of time
the appellant had allegations of insubordination leveled against him
by the first respondent. He was,
with effect from 22 June 2005,
placed on precautionary suspension with full remuneration, pending a
disciplinary enquiry to be
held against him. It was a condition of
his suspension that in order to avoid possible interference with the
investigations and
or potential witnesses, he should not enter the
premises of the employer or have contact with any staff member of the
first respondent
unless authorized to do so.
[6] It is common cause
that a disciplinary enquiry was ultimately held and the appellant was
found guilty of misconduct and was
dismissed from his employment on
21 November 2005. His internal appeal against his conviction was
unsuccessful.
[7] The appellant
referred a dispute of unfair dismissal to the General Public Service
Sectoral Bargaining Council (“GPSSBC”).
An arbitration of
this dispute was set down for 1 and 2 June 2006. On 1 June 2006 the
parties entered into a settlement agreement
in terms whereof (a) the
disciplinary hearing process against the appellant and the outcome
thereof was set aside; (b) the first
respondent could apply for the
disciplinary enquiry to be presided by GPSSBC
de novo
as a
pre-dismissal arbitration; (c) the appellant withdrew his grievance
against the first respondent that he had referred to the
GPSSBC. The
appellant continued to be placed on suspension.
[8] On 18 January 2006
the appellant forwarded an email to Ms Gyt S Ngobeni (“Ms
Ngobeni”) who was the Corporate Manager
of the first
respondent. In the email he referred to a recent telephonic
communication he had with her and mentioned,
inter alia
, that
he had been short-listed for the finals in Johannesburg for the award
of the scholarship by the Nelson Mandela Scholarship
Fund. The
scholarship was for the M.Sc. in Criminal Justice studies in the
United Kingdom.
The letter stated further
that:
‘
It
is “upon me now to ascertain from the [employer] provisional”
granting
of study leave for a one year period to me to be able to make use of
the scholarship- A question I need to be able to answer
during the
finals in Johannesburg
.
My request therefore (to you as Corporate Manager responsible for the
Northern Cape)
is
to ascertain or obtain such provisional granting of study leave and
to advise me of same as soon as possible before the end of
January
2006
;’
[Emphasis added]
The email concluded thus:
‘
This
request is being sent to you taking into account my present
suspension and its pending finalization- I hope that this opportunity
(study leave) could lead to a correction of broken relationships and
a solution to existing problems with regard to the said suspension.
I
still want to serve the People of South Africa through an important
institution such as the NPA and would settle any dispute
if this can
be maintained.’
[9] First respondent
replied to the appellant’s aforesaid email and stated that:
‘
It’s
a pleasure to inform you that after deliberations with management, it
concluded that study leave for a year be granted
to you
upon
official request, however, which certain conditions that is leave be
granted without pay, this is to enable the NPA to find
a temporary
replacement for your post
.(sic)
Other
than that,
normal forms should be processed following normal
procedures
.
Should
you have any queries regarding this matter please do not hesitate to
contact me.’
[Emphasis added]
[10] On 19 January 2006
the appellant responded with a terse email message stating that:
‘Thank you for your consideration,
help and reply. I will do’.
[11] On 3 July 2006, the
appellant’s attorney sent a letter to the first respondent in
which settlement proposals by the appellant
were communicated on a
without prejudice basis. The letter which has been placed on record
by the appellant stated:
‘
As
you are aware, our client has been granted scholarship by the Nelson
Mandela Institute to study towards LLM degree at the University
of
Southampton, which course is due to commence in mid-August 2006.
It
is our client’s request that he be granted sabbatical leave-in
accordance with the NPA’s standard policies in this
regard for
the period mid-August 2006 until October 2007. We understand from our
client that this leave is fully paid in terms
of the NPA’s
current policies
.’
[Emphasis
added]
[12] On 23 July 2006,
first respondent replied that the settlement proposals made on behalf
of the appellant were not acceptable,
that there were no counter
proposals from their side and that they were awaiting a date for the
pre-dismissal arbitration from
the GPSSBC. The pre-dismissal
arbitration referred to here was to be constituted in accordance with
the previous settlement agreement
concluded by the parties.
[13] On 3 July 2006 the
appellant’s attorneys acknowledged receipt of the letter dated
25 July 2006 and
inter alia,
recorded their dissatisfaction in
the manner in which the first respondent was treating them. The
letter stated that:
13.1 On 30 June 2006 the
appellant signed a request for a pre-dismissal arbitration hearing at
the request of the first respondent.
13.2
In the same letter,
appellant
was requested to submit his settlement proposals and he did so on 4
July 2006. First respondent only responded to the
appellant’s
settlement proposals after a period of four weeks and rejected the
appellant’s settlement proposals without
providing any counter
proposal.
13.3
The appellant had been granted scholarship and he was to travel on 18
August 2006. He wanted to present his defense at the
pre-dismissal
arbitration.
13.4
They made enquiries at the GPSSBC and have been informed that the
latter had not yet received any request for a date of set-down
of the
matter from first respondent. It was first respondent’s
responsibility to obtain a date form the GPSSBC.
2
The letter concluded
thus:
‘
Our
client’s position is accordingly as follows: in the absence of
the NPA making the necessary arrangements with the GPSSBC
to have our
client’s pre-dismissal arbitration finalized prior to 18 August
2006,
our
client is left with no alternative other than to make an application
to the NPA that he be placed on sabbatical for a period
of
approximately 12 months commencing on 18 August 2002. In this regard,
we kindly request that the NPA forward to us its relevant
policies
and procedures in this regard together with the necessary application
forms
.
This would by implication involve our client’s pre-dismissal
arbitration being postponed sine die pending our client’s
return from his sabbatical.’
[Emphasis
added]
[14] The first respondent
responded by stating, among others, that it had to follow internal
procedures, in terms whereof, they
had to obtain an approval of the
Chief Executive Officer (CEO) to apply for the date and funding to
cover the costs for the appointment
of the arbitrator. They were
however in the process of obtaining a date for the pre-dismissal
arbitration from the GPSSBC.
[15] It is common cause that on 7
August 2006 the pre-dismissal arbitration was set down for 14 and 17
August 2006 at Upington.
On 10 August 2006 the appellant’s
attorneys sent an urgent letter to the first respondent in which they
recorded that they
were,
inter
alia
, dissatisfied that
they had been given only 7 days instead of 14 days’ notice as
prescribed by Resolution 1 of 2003 of the
PSCBC
3
for the hearing. They stated further
that they were prejudiced by the short notice and suggested that the
hearing be postponed
sine
die
until the appellant
returned from his sabbatical leave in August 2007. The hearing was
thereafter rescheduled for 16 and 17 August
2006. At the hearing, an
application for a postponement
sine
die
was successfully moved
on behalf of the appellant.
[16] On 26 August 2006 the appellant
attended at the office of the Senior Prosecutor (“Mr
Engelbrecht”) in Upington
in order to complete the requisite
leave forms. Engelbrecht refused to sign the appellant’s leave
application forms as he
held the view that leave could only be
granted to the appellant without pay, while the appellant insisted
that it had to be on
full pay. The matter could not be resolved
amicably and the appellant left Mr Engelbrecht’s office without
his application
forms for leave having been formally submitted.
[17] It is common cause that the
appellant ultimately left for the United Kingdom, whilst on
suspension. He started his studies
from 18 August 2006 and returned
to South Africa on 30 July 2007. Two months later, on 31 October
2006, payment of his salary was
discontinued. On 30 November 2006 the
appellant sent an email to Ms Ngobeni requesting that his salary be
reinstated.
[18] On 19 December 2006 Mr Steven
Booysen, the Labour Relations Manager at the first respondent sent an
email to the appellant
confirming a telephone conversation that he
had with him regarding his challenge to the discontinuation of his
salary and his studies.
The appellant replied to this email on 19
December 2006 and requested a copy of the notice that authorised the
non-payment of his
salary.
[19] On 1 February 2007 the first
respondent’s acting CEO sent a letter to the appellant
informing him that he had not been
granted leave of absence to
further his studies outside the Republic of South Africa and that no
application for leave had been
received or approved. Therefore, in
terms of section 17(5) (a) (i) of the Public Service Act 103 of 1994
(“
the
PSA”), by operation of law, the appellant was deemed to have
been discharged from the public service with effect from
15 September
2006.
[20] On 5 September 2007 the
appellant’s attorneys submitted detailed written
representations in terms of section 17(5)(b)
of the PSA to the second
respondent via the first respondent. On 14 December 2007 the second
respondent confirmed the “abscondment”
of the appellant
as recommended by first respondent in a memorandum forwarded to her
office in response to appellant’s representations.
[21] On 22 February 2008 the appellant
was informed of the unsuccessful outcome of his representations in
terms of section 17(5)(b).
The letter, written by the acting Chief
Executive Officer of the first respondent advised the appellant that
he may ‘seek
a remedy to the decision from the High Court of
the Republic of South Africa’.
[22] On 17 March 2008 the appellant’s
attorneys wrote a letter to the second respondent requesting reasons
for the decision
to uphold appellant’s deemed dismissal as a
matter of urgency so that they could institute review proceedings
without delay.
[23] On 18 March 2008 Mr Pather
(Senior Manager: Employee Relations of the first respondent)
(“Pather”) replied to the
letter dated 17 March 2008. The
letter read as follows:
‘
The
reasons for the Minister’s decision to uphold the deemed
dismissal of Mr Grootboom, which are well-known to your client,
may
be summarised as follows. Mr Grootboom was absent from the workplace,
without leave or authorisation, for a period of one year.
In terms of
s17(5)(a)(i) of the Public Service Act, 1994, an employee who absents
himself from his official duties for a period
exceeding one calendar
month, shall be deemed to have been discharged from the Public
Service on account of miscount with effect
from the date immediately
exceeding his last day of attendance of duty.
Mr
Grootboom’s representations, on your letterhead, dated 5
September 2007, were submitted to the Minister for her consideration.
The afore-mentioned representations were found to be without
substance and it was held that sabbatical leave had not been granted
to Mr Grootboom, verbally or per e-mail, by G Ngobeni nor by anyone
else, at any stage, and further that there is no evidence that
sabbatical leave was granted to Mr Grootboom.
For
these reasons, the Minister upheld the dismissal of Mr Grootboom.’
[24] On 20 March 2008 appellant’s
attorneys wrote to the second respondent and among others, took issue
with the fact that
it was Pather and not the second respondent who
provided them with reasons for upholding the appellant’s deemed
dismissal.
The letter concluded that:
‘
we
reiterate our client’s intention to take the matter on review,
however we kindly request clarity on whether we should proceed
with
the reasons afforded by Mr Pather in his capacity as Senior Manager
Employee Relations of the NPA alternatively whether we
should wait
for reasons by the Minister as the review will be based on the
Minister’s refusal to uphold our client’s
representations.’
[25] On 23 March 2008 Pather replied
to this letter and advised that the first respondent in its capacity
as the appellant’s
employer was entitled to provide feedback on
the second respondent’s reasons and response to the application
for re-instatement.
He stated further that appellant’s
application for reinstatement was submitted to the second respondent
via the first respondent
and the response was sent to their office
for onward transmission to the appellant. Pather confirmed that the
second respondent’s
reasons to uphold the deemed dismissal of
the appellant are the same reasons as those advanced by the first
respondent as set out
in their previous letter of 18 March 2008.
Judgment of the Court
a
quo
[26] In its judgment, the Labour Court
recorded that the appellant’s grounds for reviewing the
“decision” of the
first respondent were that ‘first
respondent was biased or took the decision for ulterior motive and
also took into account
irrelevant considerations. In the alternative,
the appellant challenged the decision of the second respondent ‘to
uphold
the decision of the first respondent based on the common law
grounds as codified in section 6(2) of the Promotion of
Administrative
Justice
4
(“PAJA”) bias, ulterior
motive, failure to take into account relevant considerations, bad
faith and arbitrariness or
capriciously.’
[27] In essence and relevant to this
appeal, the Labour Court found that:
27.1 The appellant was away from the
country for a period of a year without authorisation from his
employer;
27.2 The deeming provisions as
envisaged in terms of section 17(5)(a)(i) of the PSA do not
constitute a decision by the employer
which could be challenged
before any of the dispute resolution bodies including a court of law;
27.3 The decision of the second
respondent not to reinstate the appellant and how it was communicated
to him was not irregular and
improper.
27.4 The appellant had failed to make
out a case justifying interference with the decision of the
respondents.
The appeal
[28] The appellant’s arguments
in this Court may be summarised as follows:
5
28.1 The provisions of sec 17(5)(a)(i)
and 17 (5)(b) of the PSA were not applicable to his situation
because, firstly, he had permission
from his employer to be away and
secondly he was on precautionary suspension and as such not required
to report for duty. First
respondent was aware of this fact as it was
advised by its Senior Consultant: Labour Relations in an internal
memorandum addressed
to the Executive Manager: HRMD.
28.2 The issue of the disputed leave
granted to him was a peripheral issue, the determination of which
required a separate enquiry
if need be in terms of the respondents
Disciplinary Code.
[29] The relevant provisions of
Section 17(5) (a) and (b) of the Public Service Act
6
that were applicable at the time
provided as follows:
‘
(5)(a)(i)
An officer, other than a member of the services or an educator or a
member of the Agency or Service, who absent 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.’
[30] In
Minister
van Onderwys en Kultuur en Andere v Louw
7
the Appellate Division (“AD”)
had to consider s 72 of the then Education Affairs Act
8
which provided that a person employed
in a permanent capacity at a departmental institution, and who is
absent from his service
for a period of more than 30 consecutive days
without the consent of the Head of Education shall, unless the
Minister directs otherwise,
be deemed to have been discharged on
account of misconduct. The AD held
inter
alia
, that the deeming
provision comes into operation if a person in the position of the
respondent, without the consent of the Head
of Education, is absent
from his service for the period stipulated. Whether the requirements
of the legislation to be operational
have been satisfied is
objectively determinable. Should the employee allege that he/she had
the necessary consent and that allegation
is disputed by the
employer, it will create a factual dispute which is justiciable in a
court of law. The AD held further that
the coming into operation of
the deeming provision is not dependent upon any discretionary
decision that may be a subject of administrative
review.
[31] Louw’s decision was
confirmed in
Phenithi v
Minister of Education and Others
9
when considering s 14(1)(a) of the
Employment of Educators Act
10
which is worded on the same terms. The
SCA held that:
‘…
No
“decision” is taken by the employer, which would require
him/her to give reasons for it. He/she merely conveys to
the
educator, in the discharge letter, the result which, according to
his/her interpretation of the law (Section 14(1)(a) of the
Act),
flows from the operation of the provisions of the section. It is not
a decision taken after, for example, the exercise of
a discretion.’
11
It is important to note that Phenithi
also challenged the constitutionality of the deeming provision and
the SCA was not persuaded
that the provisions of s 14(1)(a), read
with section 14(2) of the said Act, are in conflict with s 188 of the
LRA and held further
that they do not offend against the
Constitution.
12
[32] The decision of the AD in
Masinga
v Minister of Justice, KwaZulu Government
13
is particularly relevant to the facts
in this case. Briefly, Masinga was a public prosecutor who was
charged with misconduct and
was suspended pending an enquiry. The
enquiry dragged on and Masinga sought and obtained employment with
the Community Law Centre
of the University of Natal as a Rural
Paralegal Coordinator in its Community Law Project. When the employer
became aware of this
situation, it reacted by notifying him that he
was deemed discharged from service with immediate effect in terms of
s 19(29) of
the Public Service Act.
14
It provided that if an officer who had
been suspended from duty pending misconduct charges resigns from
service or assumes other
employment before such misconduct charge had
been dealt with to finality he/she shall be deemed to have been
discharged on account
of misconduct with effect from a date to be
specified by the Minister.
[33] The AD held,
inter
alia
, that assuming other
employment must be comparable to resignation or incompatible with
continued employment with the department:
‘
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 …. I
am prepared to assume, in favour of the respondent, that
the onus was
on the appellant who moved for the order to prove the conditions
entitling him to it (cf
Kwete
v Lion Stores (Pty) Ltd
1974
(3) SA 477
(SR) at 482 B-D). Those conditions were that he was
employed by the department and that the department wrongly discharged
him.
The agreement as such is common cause and so is the purported
discharge. What is in issue is the wrongfulness thereof. And that
depends, in the first instance, on whether his engagement with the
University was irreconcilable with his employment with the department
while under suspension and, in the final instance, on whether he was
able to resume his duties with the department forthwith if
his
suspension were to be uplifted.’
15
In my view the above test is
applicable to the facts and circumstances of this case in determining
whether the appellant was absent
from his official duties without the
permission of his head of the institution.
[34] The first factual enquiry is
whether the appellant had the permission of his employer to leave the
country for the United Kingdom.
The objective facts do not support
the contention that the appellant had such permission when he left.
It is common cause that
the appellant was scheduled to attend
interviews for selection as a shortlisted finalist for the awarding
of the scholarship. For
him to be considered or to qualify, he
required “a provisional” or an “in principle”
decision by his employer
that he would be granted permission to
attend the course. It would not have served any purpose for him to be
awarded the scholarship
without any indication that he would be in a
position to take advantage thereof. The letter that the appellant
received in response
to his request for the “provisional
granting of scholarship” stated categorically that he was to be
granted study leave
without pay in order to enable the first
respondent to find a temporary replacement for him.
[35] What the appellant understood or
ought to have understood, was that once his application for
scholarship was successful, he
had to formally complete the necessary
application forms as a process of applying for study leave for a
period of one year without
pay. It is for this reason that the
appellant approached Engelbrecht at his work station to comply with
what was required of him.
Quite evidently and contrary to the
“provisional” permission granted to him, the appellant
elected to change the conditions
and demand that he be granted study
leave with pay. In my view, Engelbrecht was not wrong to refuse to
approve appellant’s
application which was not in accordance
with the provisional permission. Appellant’s submission that
Engelbrecht prevented
him from complying with the requirement of
submitting the leave forms is therefore without merit. He wanted to
compel Engelbrecht
to sanction leave with pay which was not granted
to him.
[36] There are other reasons why the
appellant’s contention that he had permission to go on study
leave is not only wrong
but disingenuous as well. In a letter dated 3
July 2006 from his attorneys to the first respondent referred to
above, it was stated
in no uncertain terms that the appellant was
requesting that he be granted sabbatical leave in accordance with the
first respondent’s
standard policies and that his understanding
was that this kind of leave is granted with full pay. Furthermore, in
the letter dated
10 August 2006, appellant’s attorneys again
requested first respondent to provide them with the relevant policies
and procedures
regarding sabbatical leave as well as the necessary
application forms so that the appellant can present his application.
It would
make no sense for the appellant to request sabbatical leave
if indeed he had been granted permission to go on study leave
unconditionally.
It would further make no sense for him to request
the relevant policies and procedures if he had already been granted
leave with
pay to go overseas.
[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 s 17(5) (a) of the
PSA. He remained an employee of the respondents in terms of the
contract of his employment.
He remained subject to the authority of
the respondents who were paying his salary. He was therefore obliged
to obtain authorisation
from the first respondent before leaving and
he himself was aware of this aspect. I have no doubt that his
engagement with a university
in the United Kingdom without permission
was irreconcilable with his employment contract with first respondent
in that in order
to so study he was required to leave the country for
a full period of a year for that purpose. Furthermore, he was not in
a position
to resume his duties if the suspension were to be uplifted
or required to attend a pre-dismissal arbitration. He was not going
to abandon his studies and return to this country immediately. This
is also borne out by the fact that, as soon as he was informed
that
the deeming provision applied in, and that his services were
terminated on 1 February 2007, he did not return to this country
immediately. It also took the appellant seven months to initiate the
contestation of the termination of his services by making
representations through his attorneys to the second respondent in
terms of s 17(5)(b) of the PSA.
[38] The finding of the court
a
quo
that the appellant’s
services were terminated by operation of law and that there is no
decision to review is, in my view,
correct. To the extent that the
appellant contends, relying on
HORSPERSA
and Another v MEC for Health
16
that the first respondent knew where
he was and that where there are other less drastic measures that the
first respondent could
have invoked, and hence the respondent was not
supposed to use s 17(5) (a) to terminate his services is without
merit. There is
nothing in s 17 (5) that prescribes that the deeming
provision would not come into operation if the Head of the Department
is aware
of his whereabouts. There is also nothing in s 17(5) that
makes it a requirement that the deeming provision does not apply
where
there are other less drastic provisions or measures which an
employer may use. Such requirements, if any, would not have made
sense
in that there is no action or decision required by the employer
for the deeming provision become operative. The provision applies,
by
operation of law, once the circumstances set out in s 17(5)(a)(i)
exist, namely, an officer who absents himself/herself from
official
duties without permission of his/her head of the institution for a
period exceeding one calendar month. There is no requirement
in the
section that an employee should be heard before the deeming provision
applies. Neither is any action required to be taken
by the relevant
head of the institution for the deeming provision apply. All that the
head of the institution is required to do
is to inform the employee
what has taken effect by operation of law.
[39] The appellant’s contention
that the issue of the disputed leave is an irrelevant and peripheral
issue which requires
a separate enquiry in terms of the disciplinary
code of the respondents is, therefore, in my view, without merit. His
absence is
one of the jurisdictional requirements for the deeming
provision to apply and if, he indeed had permission to be away such a
requirement
would be lacking and the deeming provision would be
inapplicable. It is not within the head of the institution’s
powers to
suspend that which takes place by way of operation of law
and conduct a disciplinary enquiry. Furthermore, the respondents’
were entitled not to follow the advice of its Senior Consultant
Labour Relations if they were of the view that it was incorrect.
[40] The reasons that are advanced by
the appellant to support his claim that second respondent’s
decision not to reinstate
him was not “legal, rational and or
reasonably connected to the purpose” are the same reasons that
he raised to contend
that s 17(5)(a)(i) did not apply to his case. I
have already dealt with these reasons in my finding that s
17(5)(a)(i) was applicable
to his situation. Suffice it to state that
the fact that the appellant was on precautionary suspension, that the
first respondent
knew that he would be leaving the country on a
scholarship to study overseas, and that the employer had knowledge
about his whereabouts
are not a bar to the operation of the deeming
provision and are not sufficient to support the contention that the
second respondents’
refusal to reinstate him was illegal,
irrational or unreasonable. It is clear that the appellant knew that
he had no permission
to leave the country and defied the authority of
his employer by leaving the country. It would, in my view, be absurd
and unreasonable
to expect an employer in the position of the second
respondent to ignore such conduct and reinstate an employee who has
behaved
in this manner. The appellant has, in my view, failed to show
good cause that he should have been reinstated by the second
respondent.
[41] The appellant took issue with the
fact that the decision of the second respondent was communicated to
him through an officer
in the office of the first respondent. He
contended that it is an indication that the second respondent did not
apply her mind
at all to his representations. This contention must be
rejected. It is clear from the record that the appellant’s
representations
were forwarded to the second respondent and, as the
court
a quo
correctly held, first respondent was entitled to
make submissions in opposition to the appellant’s
representations. The office
of the second respondent acknowledged
receipt of the appellant’s representations from his attorneys
and advised them that
the second respondent was attending to the
matter and that further communication would be addressed to them
soon.
[42] In addition, the appellant wrote
to Mr J N Labuschagne, the Chief Legal Research officer in the office
of the second respondent
presenting his case and requesting
assistance. The latter investigated the matter and reported to him
about the process being followed
by the second respondent in dealing
with his representations and that he would receive a response soon.
The fact that the second
respondent accepted the first respondent’s
representations and refused to reinstate the appellant does not mean
that the
second respondent did not apply her mind. The appellant’s
contention stands to be rejected.
[42] In conclusion, I am satisfied
that s 17(5)(a)(i) applied to the appellant’s circumstances and
that the appellant has
not made out a case warranting interference
with the decision of the second respondent’s refusal to
reinstate him. The appeal
should therefore fail. It is, in my view,
in accordance with the requirements of law and fairness that costs
should follow the
result.
[43] In the result the following order
is made:
The appeal is dismissed with costs
.
__________________________
Tlaletsi JA
Judge of the Labour Appeal Court
Davis JA and Hlophe AJA concur in the
judgment of Tlaletsi JA.
Appearances
For the Appellant: In person
For the Respondents: Adv. R Nyman
Instructed by: The State Attorney,
Cape Town
1
Act
66 of
1995.
2
Sec
188A
of the Act.
3
Public
Service Co-ordinating Bargaining Council established in terms of sec
36 of the Act.
4
Act
3 of 2000.
5
See
Appellant’s Heads of Argument.
6
Act
103 of
1994. Sec 17
has amended by sec.14 of Act no.47 of 1997 and
substituted by sec. 25 of Act no.30 of 2007. The provisions are in
essence the
same and the numbering has change to sec.17 (3).
7
1995
(4) SA 385
(A).
8
Act
70
of 1988 of the House of Assembly.
9
[2006]
9 BLLR 821
(SCA); (2006) 27 ILJ 477 (SCA)
10
Act
76 of
1998. Sec 14(1)(a)
provides that: ‘
(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)…
Shall,
unless the employer directs otherwise, be deemed to have been
discharged from service on account of misconduct, in the
circumstances where-
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
…’
11
Above
n 9
at para 17.
12
Id
a
t paras 20 and 23.
13
(1995)
16 ILJ 823 (A)
14
Public
Service Act 18 of 1985 (Kwazulu). The relevant s 19(29) provided
that: ‘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
in accordance with the provisions of this section,
shall be deemed
to have been discharged on account of misconduct with effect from a
date to be specified by the Minister unless,
prior to the receipt of
his notification of resignation or the date of his assumption of
other employment he had been notified
that no charge would be
preferred against him or that the charge preferred against him had
been withdrawn.’
15
Above
n 13 at 828D-I.
16
(2003)
12 BLLR 1242
(LC).