About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2014
>>
[2014] ZALAC 98
|
|
MEC FOR THE DEPARTMENT OF HEALTH WC V WEDER MANGENA (CA 4/2013, CA 5/2013) [2014] ZALAC 98 (13 May 2014)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA, CAPE TOWN
JUDGMENT
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 c
a
se
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 a 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