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[2014] ZALAC 13
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MEC For The Deapartment Of Health, Western Cape v Weder, In Re: MEC For The Department Of Health, Western Cape v Democratic Nursing Organization Of South Africa obo Mangena (CA4/2013, CA5/2013) [2014] ZALAC 13; [2014] 7 BLLR 687 (LAC); (2014) 35 ILJ 2131 (LAC) (13 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
REPORTABLE
LAC
Case No: CA 4/2013
In
the matter between:
MEC FOR THE
DEPARTMENT OF HEALTH, WESTERN CAPE
Appellant
And
M T WEDER
Respondent
LAC
Case No: CA 5/2013
In
the matter between:
MEC
FOR THE DEPARTMENT OF HEALTH, WESTERN CAPE
Appellant
And
DEMOCRATIC
NURSING ORGANIZATION OF SOUTH AFRICA obo N E MANGENA
Respondent
Date
of hearing: 20 March 2014
Date
of judgment: 13 May 2014
JUDGMENT
DAVIS JA
Introduction
[1] This appeal concerns
two cases, which, owing to the similarity of their facts were heard
together by this Court.
Both respondents were employed by
the Western Cape Department of Health (‘the Department’).
I shall refer to
the respondents as ‘Weder’ and
‘Mangena’, respectively. In both cases their
employment with the Department
was terminated in accordance with the
provisions of s 17 (3) (a) (i) of the Public Service Act, No. 103 of
1994 (‘the Act’).
[2] Section 17(3)(a)(i)
of the Act provides: ‘An employee, other than a member of the
services or an educator or a member
of the Intelligence Services, who
absents himself 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 dismissed
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.’ Insofar as it is relevant
subsection(3)(b) provides that if an employee who is deemed to have
been dismissed as
contemplated in s 17 (3) (a) (i), reports for duty
at any time after the expiry of the period referred to in subsection
3(a) (i),
relevant executive authority may, on good cause shown and
notwithstanding anything to the contrary contained in any law,
approve
the reinstatement of that employee in the public service in
his or her former or any other post or position.
[3] Applications were
made to the appellant on behalf of both Mangena and Weder for their
reinstatement as contemplated in this
section. Appellant
decided not to reinstate both respondents. The court
a quo
then ordered the appellant to reinstate both respondents to former
positions retrospectively. In the case of Weder to 31 May 2011,
and
in the case of Mangena to 14 February 2012. It is against these
orders, with the leave of the court
a quo
,that the appellant
approaches this court on appeal.
The factual
background
[4] I shall deal first
with the facts of Weder and secondly with those of Mangena.
Weder
[5] In December 2009
Weder was diagnosed with pulmonary tuberculosis and was placed on
sick leave for the period 29 December 2009
to 1 March 2010.
In his founding affidavit, Weder avers that he provided the original
medical certificate to his employer,
a contention that is not denied
in the answering affidavit deposed to by Mr Feizal Rodriques on
behalf of the appellant.
[6] On 26 January 2010
Weder received a telegram which requested him to:
‘
Report for duty
immediately at Valkenberg Hospital to discuss unauthorised absence or
alternatively to contact Miss S J Isaacs TF
021 4403111 providing
reasons as to why (he was) unable to report for duty.’
[7] Weder claimed that he
then telephoned Sister Busi and informed her that he was ‘off
sick’, a contention which is
denied by appellant.
In his affidavit, Rodriques claimed that there was no written record
that a telephone call had
been made to Busi regarding the content of
this telegram. On 5 February 2011, Weder received another
telegram from Ms SJ
Isaacs which communicated the same information as
was contained in the previous telegram. Weder contends that he
telephoned
Mr Simang and informed the latter that he was ‘off
sick’ and ‘gained the impression that ‘’my
explanation
was acceptable and that my absence from work was
authorized”. Again, appellant denies that any telephone
conversation
took place between Weder and any “alleged persons
during the relevant periods in question”. On 11
February
2010 Weder was dismissed retrospectively with effect from 21
January 2010.
The dismissal letter, to
the extent that it is relevant, reads as follows:
‘
According to our
Departmental records, you have been absent without permission for a
period exceeding one calendar month.
As you have failed to
report for duty, you are hereby informed that in terms of Section 17
(3) (a)(i) read together with Section
17(2)(d) of the Public Service
Act, Act See attachment 3 30 of 2007 (hereafter referred to as the
Act) you are deemed to be discharged
from the service on account of
misconduct, as of 21 January 2010.
Please be informed that
20 January 2010 is considered to be your last working day.
Arrangements are presently being made for
the withdrawal of your
pension benefits and the recovery of any Departmental debts, if
applicable.
Furthermore, your
attention is drawn to Section 17 (3) (b) of the Act, whereby you are
afforded the right to make representations
against your discharge
within 5 working days. Such representation should be submitted
to the relevant executive authority
(MEC) via the Chief Director:
Metropole Regional Hospitals, APH and EMS.’
[8] Weder claims, that
upon receipt of this letter, his psychiatric condition deteriorated.
He had previously been diagnosed with
schizophrenia and he began to
suffer from major depression. Three weeks later he was admitted
to Stikland Hospital for further
treatment. He then avers in
his founding affidavit as follows:
‘”
After being
informed by a colleague at Valkenberg Hospital that I had been
dismissed unfairly I approached DENOSA for assistance.
On 8
February 2011, DENOSA addressed representations on the termination of
my service to the respondent”.
On the same date DENOSA
referred a dispute about my alleged unfair dismissal to the Public
Health and Social Development Sectoral
Bargaining Council.’
[9] The representations
of 8 February 2011, which were written by DENOSA to appellant, read
thus:
‘
It is common cause
that our member was dismissed by the employer.
The applicant hereby
appeals against the unfair dismissal. The appeal is based on the
following grounds.
(a)
Procedurally
(b)
Substantively
According to the
termination letter dated 12/02/2010, our clients services was
terminated by the employer on the 20
th
January 2010.
Our member was an employee at the Valkenberg hospital and on TIL at
the time, and the diagnosis from the treating
doctor was
Schizophrenia. The evidence will show as per the doctor’s
certificate that our client was still on sick
leave during his
dismissal. The financial loss for the past year had a negative
impact on his mental status, and our client
became so depressed after
his services were terminated, that he went into another depression.
The applicants condition
lead to him not being mentally stable to think for himself and, was
unable to pursue this case earlier.
Our client was still
on treatment at the time of his dismissal and not covered by medical
aid as all benefits were terminated,
which affected his family
financially. We therefore request that the employer do a
proper investigation into the matter
and to respond to us as a matter
of urgency. All medical reports were submitted to the
institution and will be resubmitted
with this application.
We are of the opinion
that the employer did not apply its mind to the circumstances and the
employees conditions and his personal
circumstances when action was
taken. We therefore argue that our client was unfairly
dismissed by the employer, and
that he did not abscond.
It is our submission that
the employer should reinstate our client and restore the conditions
of employment as it existed before
the termination of service.’
[10] To these
representations appellant replied on 31 May 2011 in the following
terms:
‘
I, after having
considered the evidence presented to me with regards to your deemed
dismissal, find that the grounds for your appeal
does not justify
your reinstatement.
I therefore confirm that
your deemed dismissal in terms of section 17 (3) (a) (i) of the
Public Service Amendment Act.’
[11] It was against this
decision that Weder approached the court
a quo
to have it
reviewed and set aside in terms of s 158 (1) (h) of the Labour
Relations Act 66 of 1995 (‘the LRA’).
In the
court
a quo,
Steenkamp J found that it was difficult to assess
whether the decision of appellant could have been reasonable and
rational where
no reasons for the decision were offered.
Furthermore, as Weder had not committed any misconduct, but was on
sick leave,
his absence was neither willful nor deliberate. There was
therefore no indication that the appellant had taken into account any
of these facts in arriving at a decision not to reinstate appellant.
Accordingly, the court
a quo
found the decisions stood to be
reviewed and set aside.
Mangena
[12] Ms Mangena was
initially ‘booked off sick’ by Dr Bikitsha for the month
of February 2010. She was subsequently
diagnosed with
suffering from major depression and was referred to a psychiatrist,
Dr Fortuin. Dr Fortuin issued medical
certificates which
certified that Mangena was unfit to return to work until 31 May
2010. When the Department of Health,
Western Cape failed
to pay Mangena’s salary for April 2010, she was informed that
her services had been terminated in terms
of s 17 (3) (a) of the
Public Service Act 1994. On 1 December 2010 DENOSA lodged a
statement on her behalf with appellant,
it reads thus:
‘
1.
Nurse Mangena worked as a nurse at the G F Jooste Hospital until the
end of March 2010.
2.
She was discharged from public service for allegedly going AWOL for
the period
starting on or around the 2
nd
February 2010 to
the 19
th
March 2010.
3.
Records suggest that she was booked off sick by the doctor throughout
this period
as follows:
3.1
Saw Dr Bikitsa on the 8
th
Feb 2010 and was booked off for
the rest of that month. She telephoned the hospital to notify
them of her situation.
3.2
The same doctor saw her again on the 16
th
February and
decided to refer her to a psychiatrist as she was showing signs of
severe depression.
3.3
Accordingly she consulted Dr. Fortuin in Gatesville Medical Centre,
who certified that Ms
Mangena was unfit to start working until the
31
st
May 2010.
4.
On the 19
th
of March 2010 she received a letter from the
GF Jooste hospital, delivered to her home by a driver, telling her to
return to work,
or face being discharged from public service.
5.
She telephoned the hospital on the 23
rd
March 2010
informing them that she was still booked off sick by a medical
doctor. Accordingly, relevant medical certificates
were
faxed through for the attention of Sister Baraza, her supervisor.
6.
Subsequently, her April salary was not paid, and upon enquiry by her
she was
told that her services have been terminated.
7.
She, accordingly, reported the matter to the union as early as the
9
th
of June.
8.
Subsequently, there was a series of discussions and e-mail exchanges
between
the union and the Government representative.
9.
The last meeting between the union and the employer representatives
was held
on the 22
nd
October 2010. It was during
this meeting that Advocate Rodrigues advised the union to make this
submission.
Our Argument
1.
The Public Service Act 17((3)(a) (i) says that an officer …
who absents
himself or herself from his or her official duties
without permission of his or her head of department, office or
institution for
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
2.
It is clear from the records that our member was booked off sick for
the entire
period that she was away from work.
3.
It maybe that the hospital was not aware of the above fact before she
telephoned
them on the 23
rd
March 2010.
4.
We argue that when the official came back i.e. on the 23
rd
March 2010, the hospital should have convened a hearing for her to
state her side of the story.
5.
This did not happen, and thus we submit that her dismissal is
unfair.
6.
We request the Minister to review this matter, and possibly return
the nurse
to service.’
[13]
On 18 March 2011, appellant responded to these representations and
refused the application
for reinstatement. The response
reads thus:
‘
I, after having
considered the evidence presented to me with regards to your deemed
dismissal, find that the grounds for your appeal
does not justify
your reinstatement.
I therefore confirm that
your deemed dismissal in terms of section 17 (3) (a) (i) in terms of
the Public Service Amendment Act.’
Incomplete sentence
[14] As in the case with
Weder, the respondent approached the court
a quo
in terms of s
158 (1) (h) of the LRA to review and set aside the decision of
appellant on similar grounds to the court a quo’s
finding in
Weder. The respondent was successful. With the leave of the
court
a quo,
the appellant approaches this court on appeal.
The condonation
application
[15] In the case of Weder
the decision by the appellant not to reinstate respondent was made on
31 May 2011. Weder delivered
an application for review on
9 December 2011, some six months and nine days later.
According to Weder he was advised
by his trade union, as opposed to
his attorneys, to refer the dispute to the relevant bargaining
council, as opposed to bringing
an application to review to the
Labour Court. That referral was brought within the
prescribed time period.
On 29 September 2011 the bargaining
council decided that it had no jurisdiction to hear the dispute.
This ruling was received
by Weder on 28 October 2011. He
then referred the dispute to the court
a quo
within six weeks
thereof. In dealing with this delay, Steenkamp J said:
‘
The explanation
for the delay is compelling. The applicant took reasonable
steps to refer the dispute timeously, albeit initially
to the wrong
forum. I do not consider the extent of the delay, coupled with
the reasons therefore, to be so unreasonable
that the applicant
should be deprived of a hearing. The application for
condonation is granted.’
[16] In Mangena’s
case, the decision by appellant not to reinstate Mangena was
communicated to her on 18 March 2011.
The application for
review was launched on 16 November 2011, some eight months later.
In the founding affidavit deposed
to by Mr Bongani Lose, the
provincial organizer of DENOSA, he stated that Mangena was advised to
refer an unfair dismissal dispute
to the Public Health and Social
Development Sectorial Bargaining Council. On 14 September
2011, the Council, by way
of an arbitrator decided that it did not
have jurisdiction to entertain the dispute. On 3 October 2011
DENOSA sought a legal
opinion from its attorneys on the correct
procedure to be followed. On 11 October 2011 Denosa’s
attorneys advised
that an opinion from counsel should be sought.
It was counsel’s advice that the correct procedure was to
apply
for a review of appellant’s decision in terms of s 158 (1) (h)
of the LRA. Again, for similar reasons and notwithstanding
that
he found this delay to be ‘open to severe criticism’,
Steenkamp J granted condonation.
[17] On appeal, Mr De
Villiers-Jansen on behalf of the appellant, contended that the delay
in both cases was sufficiently unacceptable,
such that the court
a
quo
had erred in granting condonation. In his view,
although there was no time limit in order to institute review
proceedings
pursuant to s 158 (1) (h) of the LRA, the court should
have applied the test as laid down in
Wolgroeiers Afslaers (Edms)
Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) and refused
to condone these lengthy delays.
[18] In
Gqwetha v
Transkei Development Corporation Ltd and others
2006 (2) SA 603
(SCA) at paras 22 – 23 Nugent JA explained the purpose and
function of the delay rule both under s 7 (1) of the Promotion
of
Administrative Justice Act 3 of 2000 (‘PAJA’), which it
was common cause was inapplicable to a review brought under
s 158 (1)
(h) of the LRA , and its common law predecessor as follows:
‘
It is important
for the efficient functioning of public bodies… that a
challenge to the validity of their decisions by proceedings
for
judicial review should be initiated without undue delay.
The rationale for that longstanding rule … is twofold:
First,
the failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, and in my
view, more
importantly, there is a public interest element in the finality of
administrative decisions and the exercise of administrative
functions. As pointed out by Miller JA in
Wolgroeiers
…
“It is desirable and important that finality should be arrived
at within a reasonable time in relation to judicial
and
administrative decisions or acts. It can be contrary to
the administration of justice and the public interest to
allow such
decisions or acts to be set aside after an unreasonably long period
of time has elapsed –
interest reipublicae ut sit finis
litium
… Considerations of this kind undoubtedly constitute
party of the underlying reason for the existence of this rule…
Underlying the latter
aspect of the rationale is the inherent potential for prejudice, both
to the efficient functioning of the
public body, and to those who
rely upon its decisions, in the validity of its decisions remains
uncertain. It is for
that reason in particular that proof
of actual prejudice to the respondent is not a precondition for
refusing to entertain review
proceedings by reason of undue delay,
although the extent to which prejudice has been shown is a relevant
consideration that might
even be decisive where the delay has been
relatively slight.’
[19] In
Opposition to
Urban Tolling Alliance and Others v The South African National Roads
Agency Limited and Others
[2013] 4 All SA 639
(SCA) Brand JA
noted that ‘the common law application of the undue delay rule
entails a two stage enquiry: First,
whether there was an
unreasonable delay and second, if so, whether the delay should in all
circumstances be condoned.’ (para
26) In dealing, as the
court was required in
OUTA
,
supra,
with s 7 of PAJA,
which prescribes that failure to bring an application within a 180
day period is unreasonable, the court found
that it was required only
to deal with the second leg of the enquiry, that is whether it should
entertain the review application
in that the interests of justice
dictated an extension in terms of s 9 and 11 of PAJA. In this
case, the court refused to
condone on the basis that ‘the delay
rule gives expression to the fact that there are circumstances in
which it is contrary
to the public interest to attempt to undo
history. The clock cannot be turned back to when the toll
roads were declared,
and I think it would be contrary to the
interests of justice to attempt to do so.’ (para 41)
[20] The present dispute
does not involve a decision which raised questions of polycentricity
as did the facts in
OUTA
,
supra.
In
the present dispute, the only major prejudice of “turning the
clock back” would relate to whether appellant
could reinstate
two employees to the same/similar positions to those which they had
previously held; that is, whether it is possible,
in terms of s 17
(3) (b) of the Act to reinstate Weder and Mangena into any other post
or position as the appellant may determine?
[21] The consequences of
a successful review application are entirely distinguishable from the
dispute in
OUTA
,
supra
. In addition, in
both the cases of Weder and Mangena an explanation for the delay has
been provided. As
Mr Leslie, who appeared on behalf of
the respondents, noted, while a trained lawyer might have realized
that it was futile to refer
an unfair dismissal dispute to the
applicable bargaining council, this did not necessarily apply to the
case of a union such as
DENOSA. Furthermore, in both cases the
referral to the bargaining council took place well within a six month
period, and
there was no undue delay about bringing the application
for review subsequent to the adverse decisions which had been made by
the
bargaining council. In my view, therefore, this is a
case in which condonation was correctly granted.
The merits
[22] The implications of
a deemed dismissal in terms of s 17 (3) (a) (i) of the Act and the
power given to the appellant to reinstate
in terms of s 17 (3) (b) of
the Act were considered within the context of similar legislation by
van Niekerk J in an well considered
judgment in
De Villiers v
Education, Western Cape Province
(2010) 31 ILJ 1377 (LC).
In that case, the court was dealing with
s 14
of the
Employment of
Educators Act 76 of 1998
. In similar fashion to s 17 (3) (a)
(i) of the Act,
s 14
of the
Employment of Educators Act provides
that
where an educator appointed in a permanent capacity is absent from
work for a period exceeding 14 consecutive days without
permission of
the employer he or she shall, unless the employer directs otherwise,
be deemed to have been discharged from service
on account of
misconduct. Section 14 (2) of the Educators Act is
couched in the same terms as s 17 (3) (a) of the Act,
namely that an
employer may, on good cause shown and, notwithstanding anything to
the contrary contained in the Act, approve the
reinstatement of the
employee in the public service in his or her former ‘or any
other post… on such conditions relating
to the period of the
absence from duty or otherwise as the employer may determine’.
[23] In analyzing whether
a review of a decision taken in terms of s 14 (2), or in this case s
17 (3) (b) of the Act, was permissible,
Van Niekerk J held that
the appellant’s contract of employment had been terminated by
operation of law and independent
of any action, in this case, of the
appellant. The discretion exercised by the appellant, in this
case pursuant to s 17 (3)
(b) of the Act, did not flow from a
contract of employment but directly from statutory powers. Thus,
‘
On the facts of
this case, the court was faced with a straightforward exercise of
statutory power vested in the respondent at the
time when the
applicant’s contract of employment was already at an end’.
(para 20)
Furthermore,
‘
if this court were
to adopt a hands off’ approach to its oversight of functions
over the exercise, of a discretion such as
established by s 14 of the
EEA, the respondent’s power would effectively be unchecked, and
the applicant would be left without
a remedy.’ (para 20)
[24] A further question
which required judicial attention related to the classification of a
decision not to be reinstated by the
appellant; that is whether this
decision could be classified as administrative action.
[25] The law in this
connection is unfortunately, somewhat unclear, notwithstanding three
decisions of the Constitutional Court.
See
Fredericks and
others v MEC for Education and Training, Eastern Cape and others
[2001] ZACC 6
;
2002 (2) SA 693(CC)
;
Chirwa v Transnet Ltd and others
[2007] ZACC 23
;
2008 (4)
SA 367
(CC);
Gcaba v Minister for Safety and Security
2010 (1)
SA 238
(CC); see also Cora Hoexter
Administrative Law in South
Africa
(2
nd
ed) at 214 ff and Halton Cheadle (2009) 30
ILJ 741.
[26] In all three of the
Constitutional Court cases, the court was concerned with litigation
which had been predicated on an alleged
infringement of the right to
just administrative action (s 33 of the Republic of South African
Constitution Act 108 of 1996) and
whether decisions taken by public
sector employees, which affected employees in the public sector, were
sufficiently ‘labour
related’ so that they stood to
be classified as labour disputes as opposed to decisions of an
administrative nature; that
is, administrative action.
[27] In these three
cases, much turned on the question as to whether the dispute could be
heard in the High Court as opposed to
the Labour Court. This
hotly contested jurisdictional problem is not in issue before this
Court, which is only concerned
with the appropriate classification of
the power exercised by appellant and hence the appropriate principle
upon which this review
application is to be predicated. In this
case, it is common cause that a review may be brought in terms of s
158 (1) (h)
of the LRA. The court
a quo
and this Court were
both clothed with the necessary jurisdiction to decide the matter.
[28] Significantly, in
the court
a quo,
when dealing with the question of
condonation, Steenkamp J held, on the strength of the judgments of
Chirwa
and
Gcaba
, that PAJA did not apply to the
present dispute.
[29] It appears that
Steenkamp J based his finding, primarily, on the most recent
of three Constitutional Court judgments,
that of
Gcaba
,
supra
. In that case, appellant had been appointed as a
station commissioner in the South African Police Service.
When
his position was upgraded, he applied, for the permanent post.
He was shortlisted and interviewed. However, he was not
appointed. He lodged a grievance with SAPS, but later abandoned
this grievance process and elected to refer the dispute to
the
appropriate bargaining council. Subsequently, he
approached the High Court to review the decision of SAPS not to
appoint him as the station commissioner. The court held that
this application was ‘essentially rooted in the LRA, as
it was
based on conduct of the employer towards an employee which may have
violated the right to fair labour practices. It
was not based
on administrative action’. (para 76) A key
justification for this conclusion was the finding that
the failure to
promote the appellant meant that the impact of the decision was “felt
mainly” by the appellant and ‘has
little or no direct
consequence for any other citizens’. (para 67)
[30] This finding has
been considered by commentators to represent the introduction of a
new requirement, in that a great deal of
administrative action may
only have an effect on the individual applicant concerned.
If this
dictum
is correct, then proof of an effect on a
broader constituency is required to constitute administrative action
See,
for example, Hoexter at 216.
[31] The reasoning
adopted by Van Niekerk J in
De Villiers
,
supra
was
predicated upon the notion that the decision stood to be classified
as administrative action, because the power enjoyed by
the appellant
to refuse reinstatement was sourced in a statute. Further, the option
of a referral of an unfair dismissal dispute
to the bargaining
council, was not available to an aggrieved employee.
[32] If correct, the
approach adopted in
De Villiers
,
supra
would apply
equally to these present disputes. But it may not be necessary to
determine this specific question in order to resolve
these appeals.
For this reason, it is instructive to examine the power of review
bestowed upon the court a quo and this court
in terms of the LRA.
This Court has dealt with the nature of the review process in terms
of s 158 (1) of the LRA in
Public Servants Association of South
Africa obo De Bruin v Minister of Safety and Security and another
(2012) 33 ILJ 822 (LAC). This court examined the law within the
context of the wording of s 158 (1) (h) of the LRA, which provides:
‘
The Labour Court
may - …
(h)
review any decision taken or any act performed by the state in the
capacity as employer
on such grounds that are permissible in law. ‘
The court held, on the
strength of the decisions in
Chirwa
and
Gcaba
, that a
dismissal of a public servant is not administrative action as defined
in PAJA. It is not capable of judicial
review in terms of
that Act, as a result of which ‘the public servant is confined
to the other remedies available to him
or her’. (at para 28)
[33] In light of the
concession by Mr De Villiers-Jansen that the appellant’s
conduct in terms of s 17(3) (b) of the Act is
reviewable in terms of
a residual principle of legality, there is no need to parse further
the key findings in
Gcaba
. Irrespective of the
classification of the decisions of appellant as administrative
action, appellant’s actions
are open to review in terms of s
158 (1) (a) of the LRA on the ground of legality, a principle
that has been developed significantly
by the courts over the past
decade. So much so, that a parallel system of review for
action which falls outside of
the strict definition of administrative
action in terms of the poorly drafted PAJA, has developed. See the
observations of Cora
Hoexter
(2004) 3
Macquarie Law Journal
165
; and more recently Lauren Kohn
2013 (130) SALJ 8-10.
[34] This observation can
be illustrated by an examination of the content which has been given
to the principle of legality within
the context of review.
Public functionaries are required to act within the powers granted to
them by law. See
Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at para 58, furthermore, see the seminal judgment in
Pharmaceutical Manufacturers, Association of South Africa:
In
re
Ex Parte President of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para 85, where the court laid down the
core element of legality as follows:
‘
It is a
requirement of the rule of law that the exercise of public power by
the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect
arbitrary and
inconsistent with this requirement. It follows that
in order to pass constitutional scrutiny the
exercise of public power
by the Executive and other functionaries must, at least, comply with
this requirement.’
[35] In later judgments
the court has developed this concept of rationality requiring the
executive or public functionaries to exercise
their power for the
specific purposes for which they were granted so that they cannot act
arbitrarily, for no other purpose or
an ulterior motive. See
Gauteng Gambling Board and another v MEC for Economic Development
2013 (5) SA 24
(SCA) at para 47. Furthermore, in
Democratic
Alliance v President of the Republic of South Africa and others
2013 (1) SA 248
(CC) Yacoob ADCJ held:
‘
If in the
circumstances of a case, there is a failure to take into account
relevant material that failure would constitute part
of the
means
to achieve the purpose for which the power was conferred. And
if the failure had an impact on the rationality of the entire
process, then the final decision may be rendered irrational and
invalid by the irrationality of the
process as a whole
.’
(Para 39)
A further requirement was
added to the principle of legality in
Judicial Service Commission
and another v Cape Bar Council and another
2013 (1) SA 170
(SCA)
where Brand JA said at para 44:
‘
As to rationality,
I think it is rather cynical to say to an affected individual: you
have a constitutional right to a rational
decision but you are not
entitled to know the reasons for that decision. How will
the individual ever be able to rebut
the defence by the
decision-maker: ‘Trust me, I have good reasons, but I am not
prepared to provide them’?
Exemption from giving
reasons will therefore almost invariably result in immunity from an
irrationality challenge.’
[36] In my view, these
principles are applicable to the decisions taken by the appellant.
Section 17 (3) (1) (i) of
the Act legislatively immunizes an employer
from an unfair dismissal referral where an employee fails to report
for work for a
continuous period of at least fourteen days.
Save for this legislation, as Van Niekerk J remarked in
De
Villiers
,
supra,
‘no other employer enjoys the right
to consider reinstatement of its employees within its sole
discretion’. Thus,
it followed that the requirement of
‘good cause referred to in s 14 (2) (or in the present case s
17 (3) (b)) should be interpreted
to mean ‘that unless the
employer, having regard to the full conspectus of relevant facts and
circumstances is satisfied
that a continued employment relationship
has been rendered intolerable by the employee’s conduct, the
employer should as
a general rule approve the reinstatement of the
employee’. (para 30)
[37] Correctly in my
view, Van Niekerk J held that a contrary finding would represent a
breach of an employee’s right to fair
labour practices and the
right to equality (since the respondent in this case is treated in a
manner which grossly departs from
the manner in which other employees
in a similar position are treated). The requirements of
legality as outlined prevent
the employee from being helpless
pursuant to an employer’s arbitrary decision. In
particular, given an employee’s
rights to fair labour
practices, the decision must be tested for rationality as outlined.
[38] It is common cause
that no reasons were provided by appellant in his letter to Weder of
31 May 2011 or in his letter to Mangena
of 18 March 2011. It
was suggested that reasons were provided in the answering affidavits
in the review application before
the court
a quo
. I am
prepared to assume in favour of appellant in this
connection, although it is telling that no reasons were
proffered by
appellant in the letters of 31 May 2011 and 18 March 2011. Our
law eschews the process of ex post
facto provision of reasons for a
decision taken, whilst no reasons are provided when the decision is
made. See
National Lotteries Board v South African
Education
and Environment
2012 (4) 504 (SCA) at para 27.
[39] In his answering
affidavit in Weder, Mr Rodriques states
‘
The respondent
avers that it properly applied its mind to all the issues and arrived
at the conclusion that the applicant’s
reinstatement, properly
considered, is not warranted therein.’
Mr Rodriques emphasised
that Weder failed, in circumstances where he could have provided a
reasonable explanation for his absence
without authority to be absent
from work. The appellant avers that it properly applied its
mind to all issues and arrived
at a conclusion that reinstatement
properly considered was not warranted.
[40] In Mangena, Mr
Rodriques again emphasises that the employee never obtained
permission and/or authority from the head of department
and/or for
his /her supervisor to be absent from his/her official duties.
He continued;
‘
I am advised that
it is instructive to note that in considering whether or not to
reinstate, the employer (the Respondent) is not
considering
termination of the contract of employment. This is so because
at this stage the employee’s or officer’s
termination of
employment with the employer would have happened by virtue of the
automatic operation of law.
I am also advised that
the only power an employer has, is to consider whether or not there
are good reason for the employee’s
absence without
authorization and to exercise the discretion in accordance with s 17
(3) (b) lf the PSA.
Having said this, the
respondent avers that Annexure “C” contains no proper and
good cause which would have enabled
the respondent to reinstate the
Applicant. If as is alleged by the applicant that she was
booked off sick as from the 8
th
of February 2010. Why then
did she fail to draw that fact to the attention of her supervisor?.
More importantly why did the
applicant fail to furnish a copy of the
medical certificate to her supervisor, in circumstances, when she
allegedly made telephonic
contact with the hospital.
…
Accordingly the only
purpose of Annexure “C” was to place reasons and/or
advance grounds of establish good cause.
In other words, the
legality of the respondent’s decision should be assessed in the
context of considering whether or not
the employee has shown good
cause for this or her absence without authority.’
Mr Rodriques concludes,
‘I am further advised that the requirements of good cause in
terms of s 17(3) (b) of the PSA entails;
that the employee having to
provide a reasonable explanation for his absence without authority.
The duty is thus on the employee
to provide the employer with a
satisfactory explanation as to what were the reasons for being absent
without authorization.
I am also advised that the decision to
reinstate should be influenced by fairness and justice.’
In both cases, the
appellant failed to give any reasons when he initially rejected the
representations that were made on behalf
of Weder and Mangena.
Subsequent, in an answering affidavit, much of the emphasis was
placed on the fact that the two
employees absented themselves without
authorization, and that the employment relationship has been rendered
intolerable.
No explanation is provided for this latter
conclusion that is beyond the assertion.
[41] It is common cause
that both employees were ill. They may have been incorrect not
to inform appellant of the reasons
for their absence but, that on its
own, did not appear to constitute willful, nor deliberate conduct on
their part.
No reason has been provided, even in
the answering affidavit with the benefit of hindsight, as to why
their continued employment
would have been rendered intolerable.
There is, in summary, a stark absence of a plausible reason/s for the
decisions
taken by appellant.
[42] In my view, applying
the test of legality, insufficient evidence was provided by the
appellant to why the decision to reject
the representations made was
sufficiently rationally related to the purpose for which that power
was given to appellant.
In particular, and critical to these
disputes, insufficient evidence was provided as to why a continued
employment relationship
had been rendered intolerable by the conduct
of these employees.
[43] For these reasons,
both appeals are dismissed with costs.
________________
DAVIS JA
Judge
of the Labour Appeal Court
I
agree
_____________
TLALETSI DJP
I
agree
_______________
COPPIN AJA
Appearances
For
the Appellant:
Adv E.A. De Villiers-Jansen
Instructed
by:
The State Attorney
For
the Respondent:
Adv G.A. Leslie
Instructed
by:
Chenells Albertyn