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[2013] ZALAC 2
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Solidarity and Another v Public Health and Welfare Sectoral Bargaining Council and Others (JA 71/10) [2013] ZALAC 2; [2013] 4 BLLR 362 (LAC); (2013) 34 ILJ 1503 (LAC) (22 January 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JA 71/10
In the matter between:
SOLIDARITY
............................................................................................
First
Appellant
JACOBUS ADRIAAN
HENDRIK KOTZE
..........................................
Second
Appellant
and
THE REPUBLIC HEALTH
AND WELLFARE
SECTORAL BARGAINING
COUNCIL
...............................................
First
Respondent
COMMISSIONER C L
DICKENS N.O
............................................
Second
Respondent
DEPARTMENT OF HEALTH:
FREE STATE
.....................................
Third Respondent
Heard: 16 May 2012
Delivered: 22 January
2013
Summary: Jurisdiction
of the Bargaining Council in terms of s 17 (5) (a) (i) of the PSA –
employee taking remunerative employment
while on suspension- assuming
other employment amounts to being absent from duty and employee is
deemed to have resigned –
employee deemed to be discharged. The
Bargaining Council therefore, lacked jurisdiction to entertain the
dispute as employee’s
service terminated by operation of law.
Appeal dismissed.
Coram: Wagly AJP,
Tlaletsi JA and Murphy AJA (MurphyAJA dissenting)
JUDGMENT
TLALETSI JA
Introduction
[1]
This appeal turns on the interpretation and application of s
17(5)(a)(i) of the Public Service Act
1
(“the
PSA”). The second appellant (“the employee”) was
employed by the third respondent, the Department
of Health: Free
State Province in the position of Senior Administrative Officer. He
complained that he was unfairly dismissed by
his employer and
together with his trade union, the first appellant, referred a
dispute of unfair dismissal to the first respondent,
the Public
Health and Welfare Sectoral Bargaining Council (“the Bargaining
Council”). The dispute was unsuccessfully
conciliated and was
referred to the second respondent, a commissioner appointed under the
auspices of the Bargaining Council, for
arbitration.
[2]
At the arbitration, the third respondent raised a point
in
limine
that
the Bargaining council lacked jurisdiction to entertain the dispute
since, in their view, the employee had not been dismissed
but was
discharged by operation of law. The point
in
limine
was
upheld by the commissioner. Aggrieved by this decision, the
appellants instituted review proceedings in terms of s 158(1)(g)
of
the Labour Relations Act
2
seeking
orders,
inter
alia
,
setting aside the award of the second respondent and that the matter
be referred back to the first respondent for hearing
de
novo
before
a commissioner other than the second respondent. The Labour Court,
per
Molahlehi
J, heard the matter on 5 February 2010 and handed down its judgment
on 28 July 2010 in terms whereof the application for
review was
dismissed with no order as to costs. On 2 November 2010, the
appellants were granted leave to appeal to this Court by
the Labour
Court.
Factual Background
[3] The employee was
based at Phekolong/Ketoana District Hospital Complex in Reitz, Free
State Province. It is common cause that
he was placed on
precautionary suspension with effect from 4 July 2007 pending the
finalization of an investigation of several
allegations of misconduct
(fraud). Whilst on suspension, the employee secured and assumed
employment in Pretoria with Compu Afrika
with effect from 23 July
2007 and continued to work until December 2007. The employee had not
obtained permission from the third
respondent to take up remunerative
work outside the Public Service. He, however, testified that he had
submitted his application
to be allowed to perform remunerative work
outside the Public Service on a previous occasion and was convinced
that having submitted
the application forms he had the approval of
the third respondent. It is for this reason that he freely told his
cousin who is
the owner of Compu Afrika to write a letter to the
third respondent confirming that he was indeed employed by him when
enquiries
were made to establish whether he was employed by Compu
Afrika. The employee however, conceded that he had not obtained
permission
but only assumed that he had approval to assume
remunerative work outside the Public Service. The reason he advanced
for not applying
for permission was simply that he had no access to
the workplace.
[4] On 19 October 2007,
the employee received a letter from the third respondent informing
him that:
‘
Discharge
from service: Yourself: Persal number: 12545015
Kindly
take that you are deemed to be discharged from the Public Service
with effect from 3 July 2007 when you accepted alternative
employment whilst you were still in service of the Department of
Health. (sic)
Above-mentioned
discharge is eminent in terms of Section 17(5)(a)(ii) read in
conjunction with Section 30(b) of the Public Service
Act, 1994,
which stipulates the following: “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.”
All
benefits will be paid to you and all debt you owes the Government
will be recovered from your pension.(sic)
Kind
Regards’
[5] As pointed out
already the commissioner made an award to the effect that the
Bargaining Council does not have the jurisdiction
to entertain the
dispute as deemed discharge does not constitute a dismissal for
purpose of the Labour Relations Act.
Proceedings in the
Labour Court
[6]
The appellants challenged the award of the commissioner on the basis
that he committed misconduct, gross irregularity and exceeded
his
powers. They contended further that the decision reached by the
commissioner was not one that a reasonable decision-maker could
have
reached. They relied on the decision of the
Constitutional
Court in Sidumo and Another v Rustenburg Platinum Mines Ltd and
Others.
3
[7] The nub of the
reasoning of the Labour Court in dismissing the review application is
found in the following passage from its
judgment:
‘
In
the present instance the applicant was suspended on the 4
th
July 2007, he then assumed employment with another employer on 23
July 2007 without authorization from the respondent. Obtaining
work
with another employer amounted to absenting himself without
authority. Although the applicant was on suspension, he was still
accountable to the respondent even during the period of suspension.
He therefore required authorization to absent himself to attend
employment with the third party. He also required authorization to
undertake employment with another employer even during his
suspension. In taking employment with Compu Africa the applicant
absented himself from his work without authorization of his employer.
Objectively speaking the applicant could not make himself available
if the suspension was to be uplifted and was to be immediately
instructed to report for work. Unlike in the case of absconding in
the private sector cases the respondent did not dismiss the
applicant
but the dismissal occurred by the operation of law. The requirement
of a fair reason before termination does not apply.
In other words
the employer does not have to show what steps it took to locate the
whereabouts of applicant before evoking the
deeming provisions of the
PSA.’
The Appeal
[8] In the Notice of
Appeal the appellants raised the following as their grounds of
appeal: The court:
8.1. applied wrong legal
principles, alternatively misconstrued legal principles applicable to
s 17 (5)(a) deemed dismissal in terms
of the Public Service Act;
8.2. erred by not
considering the fact that the employee could not be dismissed in
terms of s 17(5)(a)(ii) read in conjunction with
s 30(b) of the
Public Service Act.
8.3. erred by not
considering the fact that the employee did not absent himself but was
placed on suspension and thus the provisions
of s 17(5)(a)(i) could
not apply which accordingly meant that the provisions of s
17(5)(a)(ii) could not be invoked;
8.4.
erred by not considering the argument that if the third respondent
wished to dismiss the employee in terms of s 30(b) of the
PSA they
should have instituted formal disciplinary action against the
employee in terms of their Disciplinary Code, which they
did not do.
The court therefore erred by not considering the
Audi-alteram
partem
principle;
8.5. erred by concluding
that the employee’s alleged unauthorised acceptance of
alternative work amounted to absenting himself.
The employee was
never charged nor dismissed for his absence but for performing
unauthorised work. The Disciplinary Code made provision
for the
employee to be charged for his misconduct even though he was on
suspension.
8.6. ought to have found
that the employee was at all times available to render service to the
third respondent in the event that
the third respondent uplifted his
suspension, as well as that it was never the intention of the
employee to terminate his employment
with the respondent.
8.7.
erred by not following the decision in
HOSPERSA
and Another v MEC for Health
4
where
it was held that s 17 (5) is a draconic procedure which should be
used sparingly and only when the Code cannot be invoked
or when the
employer has no other alternative.
[9]
The issue that was raised before the commissioner as a point
in
limine
was
whether the Bargaining Council had jurisdiction to entertain the
matter. The question that had to be asked in determining whether
the
Bargaining Council had jurisdiction is whether the employee had been
dismissed. If there was no dismissal, the Bargaining Council
would
not have jurisdiction. The issue of jurisdiction does not depend on a
finding of the commissioner but on whether, objectively
speaking, the
facts that would in law clothe the Bargaining Council with
jurisdiction indeed existed. If such facts were not present
it would
then mean that the Bargaining Council did not have jurisdiction,
notwithstanding any finding by the commissioner to the
contrary:
(SA
Rugby Players’ Association (SARPA) and Others v SA Rugby (Pty)
Ltd and Others; SA Rugby (Pty) Ltd v SARPA and Another.
5
[10] Section 17 (5)(a)
and (b) which is the subject matter of this appeal provides that:
‘
(5)(a)(i)
An officer, other than a member of the services or an educator or a
member of the Agency or Service, who absents 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.’
[Emphasis added].
[11] What s 17(5)(a)(i)
entails is that if an employee of the department (who is not a member
of the services or an educator or
a member of the Agency or the
Service) absents himself or herself from official duties for a period
exceeding one month without
having obtained permission from his or
her head of the department, he or she shall be deemed to have been
discharged from the Public
Service on account of misconduct with
effect from the first day on which he or she began the absence. This
means that the deeming
provision applies on the first day after the
expiry of the one calendar month and the dismissal is deemed to have
taken place retrospectively
on the first day of his or her absence
from duty.
[12] Subsection (ii) must
be read in conjunction with subsection (i). It provides that if the
employee who is absent without permission
assumes other employment,
the period of one calendar month becomes irrelevant and the employee
is deemed to have been discharged
forth with. Put differently, for
the employee to be deemed to have been discharged in terms of s 17
(5)(a)(ii), he/she must be
absent without permission and assume other
employment even if the period of one calendar month has not expired.
[13] For a deemed
discharge provided for in s 17(5)(a)(ii) to take effect, no act or
decision on the part of the employer is required.
The discharge takes
effect by operation of law as soon as the jurisdictional requirements
are met. The jurisdictional requirements
for the deemed discharge to
take place is: it must be an employee who is not excluded; who is
absent without permission; assumes
other employment without the
permission of the employer. All what the head of the institution then
does is to convey to the employee
what has taken effect by operation
of law. The head of the institution does not have the power to stop
or suspend what takes effect
by operation of law. It is therefore not
within the head of the institution to decide or make an election on
what cause to follow
and ignore what has taken effect by operation of
law and follow a procedure that he is in his opinion less draconian.
[14]
I have already expressed my views on the
HORSPESA
decision
in a recent judgment of this Court in
Derrick
Grootboom v National Director Prosecution and Another
.
6
‘
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
7
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 prescribe 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 to 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 to 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
.’
The views expressed in
the above passage remain relevant and valid in this case as well.
[15] An employee who has
been so discharged by s 17 (5) (a) is not without a remedy. He or she
may approach the relevant executing
authority with a request that he
be reinstated. If the executing authority is satisfied that the
discharged employee has shown
good cause, it is obliged to approve
the reinstatement of that employee to his/her former or any other
post or position notwithstanding
anything to the contrary contained
in any law. The reinstatement would have the effect that his or her
period of absence shall
be deemed to be absence on vacation leave
without pay or leave on such other conditions as the relevant
authority may determine.
[16] In this case there is no doubt
that the employee did not have the permission of the head of the
department when he assumed
other employment. The question that must
be considered is whether the fact that he was on precautionary
suspension pending an investigation
and a disciplinary enquiry for
misconduct could be deemed to have been discharged when he assumed
new employment. Furthermore,
whether when on suspension he could be
said to have been absent without permission.
[17] A situation anomalous to the one
at hand arose in
Masinga v
Minister of Justice Kwazulu Government.
8
In that case an employee who was on
suspension pending an investigation of misconduct allegations assumed
other employment. He was
informed that he was deemed discharged in
terms of the applicable legislation. The then AD held,
inter
alia
, that assuming other
employment must be comparable to resignation or incompatible with
continued employment with the department
and:
‘
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.’
In my view the above test is
applicable in the facts and circumstances of this case in determining
whether the second appellant
absents himself from his official duties
without the permission of his head of the institution and assumed
other employment.
[18] In my view, the employee’s
conduct fell within the circumstances envisaged in s 17(5)(a)(i) and
(ii) of the PSA. He is
an officer who assumed other employment
without the permission of the executing authority. The employee even
though on suspension,
remained an employee of the department and was
subject to its authority in terms of the contract of employment. The
department
was also contractually obliged to pay his remuneration
during the suspension period. Accepting or assuming other employment
amounts
to being absent from duty because the employee is now
rendering his services to another employer which conduct is
irreconcilable
with his employment with the department while under
suspension. He left the Free State where he was stationed and moved
to Pretoria
to put his labour at the disposal of the new employer. In
the circumstances, I am of the view that he was deemed to be
discharged
and there was no decision to dismiss him. The Bargaining
Council therefore, lacked jurisdiction to entertain his dispute since
he was not dismissed.
[19] In my view, when an employee, who
is prohibited by his/her contract of employment from taking any
remunerative employment,
takes up other remunerative employment
he/she must be deemed to have resigned. The fact that such an
employee may be serving a
period of suspension on full pay at the
time he/she takes up such other remunerative employment and even if
the employment may
only be for the period of his suspension does not
change the fact that he/she will be deemed to have resigned. Section
17(5) read
with s 30(b) means exactly that. Instead of resignation it
uses the word discharged.
[20] When an employee is placed on
suspension on full pay he/she does not have the freedom to seek other
employment while on suspension
because he/she remains an employee who
is bound to the terms and conditions of his/her employment contract,
save that he/she is
excused from rendering certain services.
Therefore, an employee who is on suspension must be deemed to be
rendering his/her services
and can not be regarded as being absent
with permission for purposes of s 17(5) of the PSA.
[21] Finally, I must state, in
fairness to the Union official who appeared on behalf of the
appellants, that he found himself in
a difficult position of being
unable to submit that the commissioner’s finding, which was
subsequently upheld by the Labour
Court was incorrect. His view was
that the appellants ought not to have approached the Bargaining
Council for relief since there
was no dismissal but to approach the
court for necessary relief. This concession was in my view properly
made.
[22] In light of the above, the appeal
should fail. It is in accordance with the requirements of the law and
fairness that there
be no order as to costs.
[23] In the result, the following
order is made:
‘
1)
The appeal is dismissed.
2)
Each party is to pay its costs’.
_________________
Tlaletsi JA
I Agree
___________________
Waglay AJP
Dissenting Judgment
MURPHY AJA
[24] I have had the opportunity to
read and consider the judgment of my colleague Tlaletsi JA in this
appeal and find that I am
unable to agree with his conclusion that
the bargaining council lacked jurisdiction in terms of s 191 of the
LRA to conciliate
and arbitrate the unfair dismissal dispute referred
to it by the appellants on the ground that there had been no
dismissal. In
my opinion, the third respondent did indeed dismiss the
second appellant and in view of that the bargaining council was
obliged
to conciliate the dispute and if necessary to determine by
arbitration whether the dismissal was fair or not.
[25] I agree with my learned
colleague’s summation of the facts, and thus need not repeat
them, though I do in some respects
place a different inflection on
particular factual issues relevant to the conclusion I have reached.
[26] I emphasise at the outset that
the fairness and legality of the second appellant’s dismissal
are not in contention in
this appeal. The sole question is whether
the bargaining council had jurisdiction to conciliate and arbitrate
the dispute. The
answer to that question depends on whether there was
a dismissal as defined in the LRA. The fairness or legality of the
dismissal
is not relevant to the preliminary point in issue.
[27] The point of departure in
deciding whether the bargaining council had jurisdiction to determine
the referral is s 191(1) of
the LRA, the relevant portion of which
reads:
‘
If
there is a dispute about the fairness of a dismissal, the dismissed
employee may refer the dispute in writing within 30 days
of the date
of dismissal to – (a) a council, if the parties to the dispute
fall within the registered scope of that council...’
[28] Section 191(1) must be read in
conjunction with s 186(1)(a) of the LRA, which defines a “dismissal”
inter alia
to mean:
‘
an
employer has terminated a contract of employment with or without
notice’ (my emphasis)
[29] The question, therefore, is: did
the third respondent terminate the contract of the second appellant?
Although Tlaletsi JA
makes no specific reference to section 191(1)
and section 186(1)(a) of the LRA, he unequivocally concludes that the
third respondent
did not dismiss the second appellant. In his view,
the contract was not terminated by the employer because it ended
automatically
by operation of law in terms of section 17(5)(a) of the
PSA, which provides for the automatic discharge of officers of the
public
service in certain circumstances. I disagree with my
colleague’s interpretation and application of this provision,
and in
particular with his finding that the conditions precedent for
its operation were in fact fulfilled on the facts in this case. The
provision provides:
‘
(i)
An officer, other than a member of the services or an educator or a
member of the Agency or Service, who absents 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.’
[30] The conditions precedent for the
application of section 17(5)(a)(i) of the PSA require
inter
alia
that the officer
absent himself from his official duties without the permission of the
relevant functionary for a period exceeding
a calendar month. It is
common cause that, at least initially, the second appellant, an
officer, was absent from his official duties
because he was on
precautionary suspension with full pay. He accordingly did not absent
himself at that stage; he was suspended
by his employer. Furthermore,
he was not absent without permission of his head of department,
office or institution. He was instructed
to be absent.
[31] Tlaletsi JA does not make any
explicit finding that the second appellant absented himself when he
was suspended, nor does he
find that the suspension of the second
appellant meant he was absent without permission; rather his finding
is to the effect that
the second appellant absented himself by virtue
of his having assumed other employment while on suspension. His
finding accords
with the stance adopted by the third respondent in
its letter of discharge dated 19 October 2007 in which it declared
that the
second appellant was deemed to be discharged “when you
accepted alternative employment whilst you were still in service of
the Department of Health”. In my opinion, such a finding
wrongly conflates the different conditions precedent enacted in
s
17(5)(a) of the PSA and fails to appreciate their distinct nature.
That conflation, in turn, is predicated upon an incorrect
interpretation of s 17(5)(a) of the PSA and a misapplication of the
ratio decidendi
of
Masinga
v Minister of Justice, Kwazulu Government
,
9
upon which my learned colleague places
important reliance.
[32] Section 17(5) of the PSA is a
draconian provision and its terms should be restrictively construed.
In
Dadoo Ltd and others v
Krugersdorp Municipal Council,
10
Innes CJ stated:
‘
It
is a wholesome rule of our law which requires a strict construction
to be placed upon statutory provisions which interfere with
elementary rights. And it should be applied not only in interpreting
a doubtful phrase, but in ascertaining the intent of the law
as a
whole
.’
The intention of s 17(5) of the PSA is
primarily to present the employer with a means of dealing with
desertion by an employee.
It allows for the employment relationship
to come to an end without compliance with the substantive and
procedural requirements
of a fair dismissal when the employee has
removed himself from service by absenting himself for more than a
month. Without the
possibility of a deemed discharge the employer
might be unfairly saddled with obligations arising from the
continuation of the
relationship despite the employee having deserted
or absconded. Therefore, the provision allows for those obligations
to cease
when the employee evinces through his absence a
prima
facie
intention to repudiate his obligations. A restrictive
interpretation of s 17(5)(a)(i) of the PSA requires the following
conditions
precedent to be strictly fulfilled: the employee must fall
into the category of officer as defined; the employee must absent
himself
from his official duties; the absence must be without the
requisite permission; and the absence must be for a period exceeding
one calendar month.
[33] As I have already explained, I
maintain that the second appellant did not absent himself from his
official duties. In the beginning
he was instructed to stay away on
suspension and consequently was absent (at the instance of the
employer) from his official duties
with permission. The word
“absent”, as used in s 17(5)(a)(i) of the PSA, being in
the form of a verb, means to withhold
or withdraw from. The second
appellant did not withhold his services or withdraw from performing
or discharging his duties. He
was instructed to desist from
performance. Tlaletsi JA accepts that such was the situation when the
second appellant was first
suspended. He, however, as stated before,
takes the view that the second appellant absented himself from his
official duties during
the course of his suspension when he began
rendering services to another employer and that his contractual
obligations to that
employer rendered it impossible to fulfil his
obligations to the third respondent. That finding is unsustainable,
in my respectful
view, for two reasons. Firstly, once the second
appellant’s obligation to render his official duties had been
suspended contractually
by the employer, he no longer had any
official duties to perform. Official duties are those tasks,
functions, services and obligations
which an officer is required to
perform or discharge by virtue of his office. The purpose of the
suspension was to put the performance
of those duties on hold
temporarily. For the duration of his suspension, the second appellant
had no official duties. Logically,
therefore, he could not absent
himself from them. Secondly, it is trite that at common law the
employee’s principal obligation
is to make his or her services
available to the employer. The employee’s entitlement to
remuneration and the employer’s
obligation to pay arises from
the availability of the employee’s services and not the actual
rendering of services.
11
There is no evidence indicating that
the services of the second appellant were unavailable to the third
respondent as a consequence
of his accepting other remunerative work
in a family company for about six months during his period of
suspension, or that such
made it impossible to perform his
obligations. He was never instructed to tender his services, nor did
he refuse or fail otherwise
to do so. It was simply presumed by the
third respondent that because the second appellant had assumed
remunerative work with another
employer his services would not be
available. There is no evidentiary basis justifying that supposition.
[34] The finding of Tlalesti JA seems
to be predicated upon a reading of s 17(5)(a)(ii) of the PSA to the
effect that the assumption
of outside employment by a suspended
employee in itself automatically leads to a deemed discharge. Section
17(5)(a)(ii) does not
say that. It provides that 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”.
Interpreted strictly, this provision merely provides for an earlier
discharge of an absent employee prior
to the expiry of one calendar
month in specified circumstances. The second appellant has submitted
correctly that s 17(5)(a)(ii)
does not apply to him because an
earlier deemed discharge arises in terms of this provision only where
an employee absents himself
from work without permission (being “
such
an officer
’
), and
also (in addition to being such an officer) has assumed other
employment. In other words, the effect of s 17(5)(a)(ii) is
to allow
for an earlier deemed discharge before the expiry of the one calendar
month in those instances where an officer, who has
absented himself
without permission, takes another job. In which case, the deemed
discharge by operation of law occurs before the
expiry of the “
said
period
”
, such period
being the one calendar month referred to in s 17(5)(a)(i). As the
second appellant was not “such an officer”
who had
absented himself without permission, the earlier discharge provision
does not apply to him. Section 17(5)(a)(ii) is not
intended to
provide for a deemed discharge by operation of law whenever an
employee assumes other employment, it is restrictively
associated
with the terms of s 17(5)(a)(i) and the fulfilment of the conditions
precedent in that provision.
[35] It might be argued, at a stretch,
that the term “such an officer” in s17(5)(a)(ii) was
intended to refer to the
opening words of s 17(5)(a)(i), namely “an
officer, other than a member of the services as an educator or a
member of the
Agency or the Service” and not to an officer who
has absented himself without permission. If that interpretation were
to
be accepted as correct, then if any such officer assumed other
employment, the assumption of employment alone would be enough for
there to be an automatic discharge by operation of law. However, that
interpretation is confounded by the stipulation in s 17(5)(a)(ii)
for
the discharge to occur immediately “irrespective of whether the
said period has expired or not”. The said period
is obviously
“the period exceeding one calendar month” referred to in
s 17(5)(a)(i); which can only mean that the term
“such an
officer” in s 17(5)(a)(ii) alludes to an officer who has
absented himself from his official duties without
permission.
[36] I am also unable to agree with
Tlaletsi JA that
Masinga v
Minister of Justice Kwazulu Government
12
is authority for the proposition that
the mere assumption of other employment by an employee on suspension
results in a deemed discharge.
The deeming provision applicable in
Masinga
,
s 19(29) of the Public Service Act (Kwazulu),
13
differed in a significant respect from
s 17(5)(a) of the PSA. Unlike s 17(5)(a) of the PSA, it specifically
and expressly stipulated
that the assumption of other employment
while on suspension would result in a deemed discharge. Section
17(5)(a) of the PSA does
not do as much. Section 19(29) of the Public
Service Act (Kwazulu) reads:
‘
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 ... shall
be
deemed to have been discharged on account of misconduct...’
[37] Tlaletsi JA holds also that an
employee who is prohibited by his contract of employment from taking
other remunerative work
must be deemed to have resigned should he do
so. Again, I respectfully disagree. A breach of contract of that
order may result
in a fair dismissal, but in my judgment it goes too
far to regard such conduct axiomatically as a constructive
resignation. The
assumption of other employment in certain
circumstances surely will constitute a breach of contract, or perhaps
even a resignation,
at common law. However, there is no absolute
prohibition in our law on an employee holding two jobs. Failing a
contrary provision
in the contract, an employee may hold two jobs
provided they are not incompatible or irreconcilable.
14
Furthermore, any finding that the
contract had been terminated on the assumption of a second job would
require evidence that the
breach was a material repudiation accepted
by the employer, or that resignation was the intention. As I have
intimated, the evidence
does not establish that the two jobs in this
case were incompatible (in the sense that his second employment was
irreconcilable
with his first); that the second appellant would have
been unable to resume his duties if the suspension had been uplifted;
or
that the conduct of the employee evinced an intention not to
continue with the employment relationship.
[38] In this instance there is indeed
a contrary provision in the contract of employment prohibiting the
employee from assuming
other remunerative work without permission of
the employer. Section 30(b) of the PSA, to which the third respondent
referred in
its letter of 19 October 2007 informing the second
appellant of its view that he had been discharged by operation of
law, provides:
‘
No
officer or employee shall perform or engage himself or herself to
perform remunerative work outside his or her employment in
the Public
Service, without permission...’
It is common cause that although the
second appellant may have sought it, he did not have permission to
take up remunerative work
outside his employment, and hence that he
was in breach of this term. It does not follow that he was as a
consequence deemed to
be discharged. It is moreover not self-evident
that such a breach would be material or go to the root of the
contract, permitting
the employer without more to cancel. And, as
explained, in terms of s 17(5)(a) a deemed discharge does not occur
simply because
of the assumption of other employment while on
suspension; other applicable conditions precedent of the deeming
provision were
not fulfilled in this case.
[39] Yet, as I have just said, the
second appellant did breach s 30(b) of the PSA and thereby possibly
repudiated his contract.
Depending on the circumstances, and in
particular the seriousness and significance of the breach, his
conduct may have constituted
a material repudiation and thereby
provided substantive grounds for a fair dismissal. But with regard to
the preliminary point
at issue in this appeal, (the question of
whether or not there was a dismissal so as to confer jurisdiction on
the bargaining council),
the mere fact of the breach does little to
help the third respondent. Our law of repudiation is clear. A
wrongful repudiation of
a contract does not automatically terminate a
contract. It is for the injured party to decide whether he will treat
the contract
as at an end (cancellation) and seek redress by way of
damages; or whether he will regard the contract as still subsisting
and
call for performance in accordance with the contractual terms. In
other words, the injured party (in this case the employer) must
accept the repudiation, before termination occurs in law.
[40] An argument no doubt could be
made that employment law should be looked at differently and that a
repudiatory breach by an
employee should be sufficient to terminate
an employment contract without there being any need for the employer
to accept the repudiation.
In other words, it may be contended, along
the lines of the reasoning of Tlaletsi JA, that repudiation in the
form of accepting
other employment without permission should
ipso
facto
be regarded as a “constructive resignation”.
Even then though, as I see it, there would have to be additional
evidence
of an intention not to continue the relationship, or
alternatively constructive intent inferred from incompatibility or
the irreconcilable
nature of the two jobs. As I have already found,
there is no evidence of either incompatibility or an intention by the
second appellant
not to continue with the relationship in this case.
Be that as it may, prevailing authority requires acceptance of the
repudiation
in order to terminate the contract. In principle,
therefore, at least in terms of our common law, it is the acceptance
of the repudiation
that terminates the contract. That being the case,
if an employer accepts a perceived repudiation of the contract by the
employee,
it is not the employee, nor the operation of law, but the
employer that has terminated the contract; and hence its conduct will
be a dismissal as defined in s 186(1)(a) of the LRA.
[41] To re-cap briefly: if we accept
then the two key legal propositions from the preceding lines of
argument, first that s 17(5)(a)
of the PSA finds no application here,
and second that an employer must accept a repudiation before a
contract of employment can
terminate, it follows that the second
appellant’s contract of employment did not automatically
terminate by operation of
law, but terminated when the third
respondent accepted what it perceived to be a repudiation by the
second appellant. Although
the third respondent was ill-advised about
the scope of s 17(5)(a), there can be no doubt that it viewed the
second appellant’s
assumption of other remunerative work as a
repudiatory breach. The letter of 19 October 2007 informing the
second appellant of
his discharge proclaimed his acceptance of
outside remunerative work (and not his absence without permission for
more than a month)
to be the basis for his deemed discharge, and
stated expressly that the conduct was in breach of s 30(b) of the
PSA. The third
respondent’s stance was a clear signal that it
regarded the conduct of the second appellant as a repudiation which
it had
accepted. But for the second appellant’s assumption of
other remunerative work, and the third respondent’s perception
and interpretation of his conduct, the second appellant would have
remained on suspension and in employment. Effectively, by terminating
the payment of remuneration to the second appellant, albeit on the
incorrect categorisation of his conduct as a deemed discharge,
the
third respondent refused the implicit tender of his available
services and terminated the contract. Had the third respondent
not
accepted the apparent repudiation, it would no doubt have allowed the
second appellant an opportunity to make out good cause
for
reinstatement in terms of s 17(5)(b) of the PSA. If it had wanted the
relationship to continue it would have followed that
procedure
instead of seizing the chance to terminate it on the mistaken basis
of a deemed discharge. Its miscalculation was to
assume that the
contract had terminated by operation of law, when in fact and in law
it had not, and further that such entitled
it to dispense with the
requirements for a fair dismissal ordained by the LRA.
[42] In the result, I find that the
third respondent did dismiss the second appellant and that both the
bargaining council and the
Labour Court were wrong in their findings
that the bargaining council lacked jurisdiction. For those reasons, I
would say the appeal
should succeed and I would propose the following
orders:
i) The appeal is upheld.
ii) The ruling of the first respondent
is set aside and is substituted with the following:
‘
The
respondent’s preliminary point is dismissed and it is declared
that the bargaining council has jurisdiction to determine
the unfair
dismissal dispute referred to it by the applicant.’
iii) The third respondent is ordered
to pay the costs of the appeal.
____________
Murphy AJA
APPEARANCES:
FOR THE APPELLANTS: Mr D J Groenewald
of Solidarity
FOR THE THIRD RESPONDENT: SS Jonase
Attorneys
1
Act
103 of
[1811] EngR 449
;
1994.
2
Act
66
of 1995.
3
[2007]
12 BLLR 1097
(CC).
4
[
2003]
12 BLLR 1243
(LC).
5
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC); (2008) 29 ILJ 2218 (LAC).
6
Case
no: CA 7/11 unreported, handed down on 21 September 2012 at para 38.
7
[2003]
12 BLLR 1242 (LC).
8
(1995)
16 ILJ 823 (A) at 828D-H.
9
(1995)
16
ILJ
823 (A).
10
1920
AD 552.
11
Johannesburg
Municipality v O’ Sullivan
1923 AD 201.
12
Masinga
v Minister of Justice, Kwazulu Government.
13
Act
18 of 1985 (Kwazulu).
14
Masinga
v Minister of Justice, Kwazulu Government
.