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[2014] ZALAC 43
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Makade v Public Health And Social Development Sectoral Bargianing Council and Others (PA2/2012) [2014] ZALAC 43 (19 August 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE APPEAL COURT OF
SOUTH AFRICA, PORT ELIZABETH
Not reportable
Case no: PA 2/2012
In the matter between:-
BONISILE
MAKADE
Appellant
and
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
SECTORAL BARGAINING
COUNCIL First
Respondent
JOHN
CHEERE ROBERTSON N.O.
Second
respondent
DEPARTMENT
OF HEALTH EASTERN CAPE
Third
Respondent
(First,
Second and Third Respondents in the Court
a
quo
)
Heard:
25 March 2014
Delivered:
19 August 2014
Summary:
Termination of employment by operation of law in terms of s17 of the
PSA. Employer lifting employee’s suspension
and deploying
employee to another position. Employee not reporting for duty
–Employer warning employee of consequences
of absconding.
Commissioner and court
a quo
finding that employee not
dismissed but employment terminated by operation of law. Court
a
quo’
s judgment upheld. Appeal dismissed with costs.
CORAM:
NDLOVU JA, MOLEMELA AJA
et
SUTHERLAND AJA
JUDGMENT
MOLEMELA
AJA
Introduction
[1]
This is an appeal against the judgment of the Labour Court (Cawe AJ)
dismissing an application to review the second respondent’s
decision in which he found that the appellant was dismissed from the
Public Service by operation of law. The appeal is brought
with leave
of the court
a quo
.
Background
facts
[2]
The appellant was previously employed by the third respondent as a
nurse. He subsequently qualified as and practiced as an attorney.
He
was seconded to the office of the Member of the Executive Council
(MEC) for Health in the Eastern Cape Province with effect
from June
2000. On 9 May 2001, the appellant was informed that with effect from
1 June 2001 he was appointed as Administrative
Secretary in the
office of the MEC in line with Public Service Act and Chapter 14 of
the Ministerial Handbook. The appellant was
granted consent to carry
on with his practice for as long as there was no conflict of interest
with his duties.
[3]
On 14 April 2003, the MEC suspended the appellant. The letter did not
specify the reason for the suspension and merely stated
as follows:
‘
You are hereby
advised that with effect from 14 April 2003 you should take a leave
of absence pending the discussion on your future
deployment in the
office of the MEC. You are to report to this office on 22 April 2003
at 08h30’.
[4]
A letter dated 30 April 2003 authorised by the then Acting
Superintendent General advised the appellant that his leave of
absence
was extended until further notice. On 21 August 2003, the
appellant received a charge sheet setting out that he was being
charged
with insubordination pertaining to an incident that occurred
on 14 April 2003. The disciplinary hearing was scheduled for 28
August
2003 but did not proceed due to the fact that the appellant
had not been given sufficient notice.
[5]
There was a lull in the matter until 26 March 2004, when the
appellant received a letter from the third respondent, dated 11
February 2004, informing him that his suspension was lifted, that the
charges that had been levelled against him were withdrawn
and that he
was deployed to the post of Middle Manager (Deputy Director: Hospital
Administration) at Victoria Hospital, Victoria
East. The relevant
part of the letter was couched as follows:
‘
You are hereby
informed that your suspension is hereby lifted, the charges levelled
against you are withdrawn and you are to be
deployed to the above
post [Middle Manager at Victoria Hospital, Victoria East] with effect
from 1 March 2004.’
[6]
The appellant replied in a letter dated 28 March 2004, raising
concerns about the proposed deployment and rejecting the third
respondent’s offer. He stated as follows:
‘
I am willing to
return to my post as I made my services available to Department of
Health from date of my appointment until to date
…This matter
may still be resolved amicably by allowing me [to] resume duties with
immediate effect in my present post.’
[7]
It was only on 28 October 2004 that the third respondent responded to
the appellant’s letter, stating that as a “final
offer”
the appellant was to report for duty on Monday 1 November 2004 “to
The Director: Human Resources Management,
situated at no 1
Independence Avenue, Dukumbana Building, Bisho”. On 1 November
2004, the appellant indeed reported to the
afore-mentioned office,
only to be presented with a letter informing him that ‘a
suitable post’ had been identified
for him at SS Gida Hospital,
where he was to be placed in the post of Middle Manager: Health with
effect from 8 November 2004.
[8]
The appellant did not report for duty as instructed and instead wrote
a letter to the third respondent rejecting the offer on
the grounds
that the proposed deployment amounted to a unilateral change to the
terms and conditions of his employment. He also
bemoaned the fact
that the job functions that the offered post would entail were not
clearly defined to him.
[9]
On 6 December 2004, the third appellant wrote to the appellant
stating that his complaints could be raised in terms of the grievance
procedure. The appellant was further warned that failure to report
for duty by 8 December 2004 would be regarded as abscondment.
On 6
December 2004, the appellant handed in a letter at Bhisho advising
the third respondent that he was tendering his services
on the same
terms and conditions applicable to the post he held prior to his
suspension. He concluded his letter as follows: “I
therefore
request the Department to provide me with resources and necessities
to resume my job.”
[10]
On the same date, i.e. 6 December 2004 the third respondent wrote a
letter stating:
‘
The Department’s
offer to you remains namely, that you are to report to the SS Gida
Hospital against the post of Middle Manager:
Health …. Failure
to report without any acceptable explanation would be regarded as
abscondment effective from 8 December
2004.”
[11]
On the same date, i.e. 6 December 2004 the appellant referred a
dispute characterised as “unilateral change to terms
and
conditions of employment.” In the dispute, he
inter alia
complained that he was given a “letter of placement elsewhere
without being given an opportunity to be heard or reasons for
that.”
[12]
The appellant subsequently referred an Unfair Labour Practice dispute
to the first respondent. The matter was duly arbitrated
and an award
was issued in terms of which the arbitrator ruled that the first
respondent did not have jurisdiction to entertain
the dispute on the
grounds that the appellant had failed to exhaust internal remedies
prior to his referral of the dispute to the
first respondent.
[13]
Pursuant to the arbitrator’s ruling, the appellant then lodged
a grievance internally. The dispute could, however, not
be resolved.
The appellant subsequently referred a new Unfair Labour Practice
dispute to the first respondent. On the scheduled
date of the
hearing, the third respondent was in default and the matter was heard
in its absence. The Commissioner who heard the
dispute, however,
failed to deliver an award. The appellant then referred the dispute
afresh, culminating in the arbitration hearing
that the second
respondent presided over. At the commencement of the hearing, the
second respondent requested the parties’
legal representatives
to address him on the effect of section 17(5)(a)(i) of the Public
Service Act (PSA) of 1994 (Proclamation
103) alternatively section
17(3)(A)(I) of the PSA as amended. The matter was argued and the
second respondent concluded that the
appellant’s failure to
report for duty as instructed was tantamount to abscondment as
contemplated in section 17(5)(a) of
the PSA. He then found that the
requirements of section 17(5)(a)(i) are applicable. He stated as
follows:
‘
I find that the
employee fell foul of section 17(5)(a)(i) in this regard and
notwithstanding: his written challenges; whether or
not the employer
acted correctly; the employer’s subsequent ‘final offer’
to the employee contained in a letter
of 28 October 2004 and
requiring the employee to report to SS Gida with effect from 8
November 2004. His employment with the Department
of Health
terminated by operation of law.”
[14]
The second respondent then went on to issue the following ruling:
‘
1.
The employee (Mr Makade) was dismissed from the Public Service by
operation of law.
2.
The PHSDSBC does not have jurisdiction to hear the employee’s
dispute as
referred.
3.
The employee’s dispute referred under case reference PSHA
489-07/08 is
dismissed.
4.
There is no order as to costs.
5.
Note: The parties agree that the period within
which to bring
review proceedings will only run from the date of
receipt of this written Ruling.’
The labour court
proceedings
[15]
The court
a quo
considered the chronology of events and
concluded that by the time the appellant was offered a post at
Victoria East Hospital,
his suspension had already been lifted. The
court
a quo
reasoned that its conclusion in this regard was
bolstered by the fact that the appellant had, according to his own
assertion
reported for duty
at the office of the Director:
Human Resources. The court
a quo
further concluded that the
third respondent may have erroneously suspended the appellant but
there were “clear
bona fides
” on its part to lift
the suspension and have the applicant report for duty, albeit in
another position. The court
a quo
was not persuaded by the
appellant’s contention that the issue pertaining to the
applicability of section 17(5)(a)(i) of
the PSA was raised by the
second respondent
mero motu
and instead found that the third
respondent had relied on it when it warned the appellant that he
would be regarded as having absconded
if he did not report for duty
in the post of middle Manager Health. The court
a quo
found
that there was no evidence of the appellant having reacted to the
third respondent’s warning. The court
a quo
found that
the second respondent’s decision was well reasoned and thus
dismissed the application for review.
Evaluation
[16]
It must be borne in mind that the test to apply in a review is not
whether the decision reached by the commissioner was correct
but
whether it falls within the range of reasonable decisions that could
have been made. In
Herholdt v Nedbank
(Cosatu as
amicus
curiae
) reviewing courts were reminded of the distinction between
a review and an appeal in the following terms:
‘
While
the evidence must necessarily be scrutinized to determine whether the
outcome was reasonable, the reviewing court must always
be alert to
remind itself that it must avoid “judicial overzealousness”
in setting aside administrative decisions that
do not coincide with
the judge’s own opinions. ...A result will only be unreasonable
if it is one that a reasonable arbitrator
could not reach on all the
material that was before the arbitrator. Material errors
of fact as well as the weight and
relevance to be attached to
particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only
of any consequence if their
effect is to render the outcome unreasonable.’
[1]
[17]
Having perused the record, I agree with the court
a quo’s
and the second respondent’s finding that the appellant’s
suspension was lifted. This is evident from the contents of
the
letter dated 11 February 2004, which expressly stated that the
appellant’s suspension was lifted. It is the latter part
of the
letter in question that is worrisome. It would seem to me that the
appellant’s suspension was immediately replaced
by a transfer
to another post with effect from 1 March 2004, still at the Deputy
Director level but in another town in the Eastern
Cape. Evidently,
the purported transfer or deployment was not preceded by any
consultation. The appellant’s referral of a
dispute under those
circumstances is hardly surprising. However, this does not detract
from the fact that the suspension was lifted.
[18]
My conclusion that the suspension was lifted is based on the third
respondent’s letter dated 11 February 2004, which
expressly
stated so. This was followed by numerous letters which instructed the
appellant to report for duty, albeit at different
hospitals and not
in the same position he previously held. In the end, the third
respondent had remained adamant that the appellant
report for duty at
SS Gida hospital, failing which he would be regarded as having
absconded. I am of the view that the appellant
knew very well that
his suspension was lifted, hence his own assertion that on 1 November
2004 he
reported for duty
at the office of the Director: Human
Resources. I am also fortified in this view by his initial
characterisation of the dispute
as “unilateral change of
employment conditions”, followed by “unfair labour
practice relating to deployment without
consultation”, as
opposed to “unfair labour practice relating to suspension”.
[19]
Counsel for the appellant referred us to the case of
Grootboom
v National Prosecuting Authority and Others
[2]
in
which the Constitutional Court held that since the suspended
employee’s absence from the workplace was as a result of his
suspension, that meant that he was absent from the workplace with the
permission of his employer resulting in one of the essential
requirements of section 17(5)(a)(i) not being met. I am of the view
that this case (i.e.
Grootboom
case) is, on the facts, distinguishable from the case under
consideration and is therefore not applicable. The main
distinguishing
factor is that whereas in the
Grootboom
case it was common cause that the employee was still on suspension at
all times material to that dispute, in this case, the appellant’s
suspension had already been lifted. The commissioner’s
conclusion that the suspension was lifted is not unreasonable. As
correctly pointed out by the court
a
quo
,
it is evident from the letter dated 11 February 2004 that the
appellants’ suspension was lifted and this conclusion is
bolstered by his subsequent reporting for duty on 1 of November 2004.
The third respondent was adamant that the appellant should
report for
duty at S S Gida Hospital, as borne out by the letter of 6 December
2004. It is common cause that the appellant never
reported on duty to
render service to the third respondent after this date. The third
respondent stopped paying the appellant’s
salary in July 2005.
In light of all these circumstances, it can hardly be argued
that the third respondent had granted the
appellant permission for
his lengthy absence.
[20]
I now turn to the second respondent’s decision on the
applicability of section 17(5)(a)(i) of the PSA. It is common cause
that the second respondent invited the parties to make submissions on
the applicability of the afore-mentioned section of the PSA.
The letters submitted in the proceedings, including the third
respondent’s letter of 6 December 2004, where reference to
a
conclusion of abscondment was made, all constituted evidence in the
arbitration proceedings. It was common cause that the appellant
never
reported for duty after 6 December 2004. All the facts pointed in the
direction of a dismissal by operation of law as envisaged
in section
17(5)(a) of the PSA.
[21]
It is trite that the requirements for the operation of the deeming
provision in terms of section 17 of the PSA are as follows:
(i)
The person concerned must be an employee;
(ii)
The employee must have absented himself or herself from his/her
official duties;
(iii)
The absence of the employee must have been without permission from
the Head of Department;
(iv)
The period of absence must have exceeded one calendar month.
[22]
In
Phenithi
v Minister of Education and Others,
[3]
it was held that an employee who is deemed to be discharged by
operation of law is not “dismissed” and the employer
does
not act or take a decision because the discharge is by operation of
law. In
Grootboom
v National Prosecuting Authority and Others
(LAC decision),
[4]
the court
re-iterated this principle and stated that the deeming provision
applies once the circumstances set out in section 17(5)(a)(i)
exist.
It is significant that the Constitutional Court in the case of
Grootboom
[5]
,
did not disapprove of this principle despite overturning the decision
of the Labour Appeal Court.
[23]
It was quite evident from the correspondence exchanged between the
parties and handed to the second respondent, that the four
jurisdictional requirements set out in paragraph 21 were all present.
If we accept that when these four requirements are present,
then the
deeming provisions of section 17 apply and that where the deeming
provisions apply the employer does not make a decision,
then it is
clear that the second respondent, being the commissioner that
presided over the matter, had a basis for asking the parties
to make
submissions on the applicability of section 17(5)(a)(i) of the PSA in
order to ascertain whether the first respondent had
jurisdiction to
adjudicate the dispute.
[24]
I am of the view that even though the applicability of section
17(5)(a)(i) of PSA was not identified as an issue in dispute
in the
pre-arbitration minutes and was also not raised by the third
respondent as a point
in
limine,
this did not in any way preclude the second respondent from
considering it, given the accepted facts as borne out by
correspondence.
He, as a commissioner determining the dispute, was
obliged to establish whether the first respondent had jurisdiction to
adjudicate
the dispute irrespective of whether the issue was raised
by the litigants or not. There is a plethora of Labour Court
authorities
on this aspect and this trite principle need not be
restated here. Also see
Government
of South Africa v von Abo.
[6]
Having considered all the circumstances, I am of the view that there
is nothing unreasonable about the second respondent’s
conclusion that the appellant’s dismissal was by operation of
law and that the first respondent consequently had no jurisdiction
to
adjudicate the dispute.
[25]
Insofar as the appellant seemed to rely on his referral of his
grievance to the first respondent as a reason why the deeming
provision did not apply, I am not persuaded by such a proposition.
There is nothing in section 17(5) that suggests that the
deeming provision would not come into operation if a dispute was
still pending at the CCMA or any Bargaining Council. Surely, the
mere
referral of a dispute to a bargaining council by an employee who is
not reporting for duty without having been instructed
not to do so,
or without the employer’s permission, cannot serve as bar to
the coming into operation of the deeming provision,
for even after
the referral of a dispute (other than an unfair dismissal dispute)
the employee remains subject to the authority
of the employer and has
to report for duty where he has been deployed by the employer pending
the determination of the dispute.
If there is no evidence that an
employee had permission to be absent from his duties, even if the
employer knew what the reason
for the absence was, that does not mean
that the deeming provision does not come into operation. See
Free
State Provincial Government (Department of Agriculture) v Makae and
Others.
[7]
[26]
The very facts of this case demonstrate the fallacy of such
reasoning. The appellant was repeatedly instructed to report for
duty
at SS Gida Hospital and he repeatedly refused despite being warned
that his failure to report for duty would be regarded as
abscondment.
By the time the matter was heard by the second respondent, the
appellant had already been absent from the workplace
for about four
years. If the appellant’s proposition was meritorious, the
upshot would have been that the third respondent
would have had to
retain the appellant on its payroll for that period, without having
had the benefit of the appellant’s
service at all and while the
appellant was probably continuing with his practice as an attorney.
[27]
Considering that the proper interpretation of a deeming provision is
that once the necessary facts are present, an employee
is deemed to
be discharged, I am of the view that the court
a quo
had no
reason to interfere with the ruling of the second respondent.
[28]
There is no basis for tampering with the judgment of the court
a
quo
. I would accordingly make the following order:-
(1)
The appeal is dismissed with costs.
__________________
M.B.
Molemela AJA
I
concur.
____________
Ndlovu
JA
I
concur.
_______________
Sutherland
AJA
APPEARANCES:
FOR THE APPELLANT:
Adv X S Nyangiwe
Instructed
by B Makade INC
FOR THE THIRD RESPONDENT:
Adv
M Simoyi
Instructed
by State Attorneys
[1]
2013
(6) SA 224
(SCA) at para 13.
[2]
2014 (1) BCLR 65 (CC).
[3]
(2006)
27 ILJ 477 (SCA) at paras 7 and 20.
[4]
[2013]
5 BLLR 452
(LAC)at para 38.
[5]
Supra.
[6]
2011
(5) SA 262
(SCA) at 270 D – H.
[7]
[
2006]
11 BLLR 1090
(LC) at para 33.