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[2017] ZALAC 38
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Gangaram v MEC for the Department of Health, Kwazulu-Natal and Another (DA9/16) [2017] ZALAC 38; (2017) 38 ILJ 2261 (LAC); [2017] 11 BLLR 1082 (LAC) (13 June 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA 9/16
In
the matter between:
D
GANGARAM
Appellant
and
MEC
FOR THE DEPARTMENT OF HEALTH,
KWAZULU-NATAL
First
Respondent
HEAD
OF DEPARTMENT OF HEALTH,
KWAZULU
NATAL
Second
Respondent
Heard:
23 February 2017
Delivered:
13 June 2017
Summary: Employee
deemed dismissed in terms of section 17 of the PSA –employee
making representations for her reinstatement
– employer failed
to respond – employee implying that the failure to take a
decision amount to a decision refusing
her reinstatement susceptible
to be set aside – Held that the point of departure is whether
the employee was properly deemed
to have been dismissed – that
employer knew employee’s whereabouts as employee submitted
leave forms as justification
for each absence – that in the
absence of a refusal of the leave forms, employee rightly assuming
that leave forms approved
– that the jurisdictional
requirements for the employee to be deemed dismissed because of being
absent for a period exceeding
one calendar month without permission
have not been satisfied, and as such there was no need for her to
make representations in
terms of s17(3)(b) for her reinstatement.
Appeal upheld and Labour Court’s judgment set aside –
employee reinstated
retrospectively.
Coram:
Tlaletsi DJP, Landman JA and Phatshoane AJA
JUDGMENT
TLALETSI
DJP
[1]
This
is an appeal against the order of the Labour Court (per Whitcher J)
which dismissed an application brought in terms of s 158(1)(h)
of the
Labour Relations Act
[1]
(the
LRA) wherein the appellant sought to review an alleged “decision”
by the first respondent, her employer, not to
reinstate her after she
was purported to have been deemed dismissed by operation of law in
terms of s17 (3) of the Public Service
Act 1994
[2]
(the PSA).The appeal is with leave of the Labour Court.
[2]
For
a better understanding of the issue on appeal, a brief background
that led to the dispute is apposite. These facts are extrapolated
from the appellant’s founding and supplementary affidavits. The
respondents’ answering affidavit was filed out of time,
and the
Labour Court refused to consider it for the purposes of the
application. The matter was as a result decided on the version
of the
appellant. This decision is not challenged in this appeal.
[3]
The
appellant commenced her employment with the respondents in 1997 at
the Emergency Medical Services housed at the “Control
Centre”.
After improving her qualifications relevant to her work, she was
promoted to the position of Emergency Care Practitioner,
level 10 in
January 2009. During the period 2002 to 2003, she sustained injuries
to her “lumbosacral” spine which made
it difficult for
her to perform some of her duties. She was in constant pain. In 2003,
her employer advised her to subject herself
to one Dr Dasi, a
neurosurgeon at Albert Luthuli Hospital for examination and help.
[4]
After
examining the appellant on 29 July 2003, Dr Dasi issued a letter in
which he confirmed that she was indeed injured; that he
had advised
her about preventative back care, including avoiding lifting heavy
objects and recommended that she be confined to
office duties. The
appellant was allowed to remain at the control centre as recommended.
[5]
Over
a period of time, the appellant continued to submit her medical
reports to the respondents every time she had consulted a doctor.
Her
reason for consulting the doctors was because her medical condition
did not improve. On 30 September 2007, she sustained an
injury on
duty. She consulted Dr Dasi who placed her on treatment of pain
tablets. According to her, her condition deteriorated.
The
respondents paid for her treatment since she was injured on duty.
[6]
On
5 August 2010, at a “relocation meeting” by one Ms Zungu,
the appellant was informed that she was required to perform
field
work. This sudden change was triggered by a grievance lodged by one
of the respondents’ employees who was refusing
to perform
operational/field duties due to an alleged illness and relied on the
appellant’s situation to support her grievance.
The appellant
informed Ms Zungu that she was still unable to perform field work
because of her medical condition and the medical
doctor’s
recommendation. Ms Zungu undertook to investigate her medical
condition and revert to her.
[7]
On
24 August 2010, the appellant was served with a letter by Ms Zungu
directing her to report to the Central Base at Oldhan House
to
commence operational duties as an “ALS Operational”. Four
days later on 28 August 2010, the appellant served a grievance
on her
shift supervisor contesting the instruction to relocate her from the
Control Centre to the Central Base to perform operational
duties
contrary to her medical condition. The solution she desired was to
remain at her current work environment.
[8]
Despite
the pending grievance, the appellant was served with another letter
from Mr D Padayachi, the Communications Centre Manager.
The letter
referred to the letter from Ms Zungu of 24 August 2010 and advised
her to report at the Central Base to perform operational
duties. On
11 September 2010, the appellant reported for duty at the Central
Base as directed. She was, however, unable to work
and explained her
predicament to the shift supervisor, Mr P Govendor, in a letter dated
11 September 2010.
[9]
According
to the appellant, she regularly attended on her physician and
psychiatrist, and had been booked off sick due to major
depression
which activated her chronic back pain. She, at the end of each month,
completed a leave of absence form and attached
medical certificates.
This situation endured for the period October 2010 to August 2011,
and on each occasion, the officials at
her workplace acknowledged
receipt of the leave forms with the attached medical certificates.
[10]
On
22 November 2010, Dr Dasi issued a letter after consulting the
appellant indicating that she is under treatment and that carrying
heavy weights should be strictly avoided. On 7 February 2011, some of
the respondents’ officials held a meeting concerning
the
appellant’s condition at work. They informed her that she would
only be allowed to work in the Control centre if her
salary level was
dropped from level 10 to level 4 alternatively that she must apply to
be boarded due to her medical conditions.
She was, however, unable to
agree to the conditions imposed on her.
[11]
According
to the appellant, her attempt to obtain an interdict against the
respondents was dismissed on 23 June 2011 on the grounds
that she had
to exhaust other alternatives remedies available to her. She was
later advised by the respondents’ legal advisor
through her
attorney to report for work at the Control centre and that she was
neither demoted nor displaced. She reported for
duty on 26 and 27
June 2011. On these days she was instructed to perform operational
duties at the Central base.
[12]
On
27 June 2011, the appellant referred an Unfair Labour Practice
dispute for demotion to the Public Health and Social Development
Sectoral Bargaining Council (PHSDSBC).
[13]
On
19 August 2011, Mr NW Sithole, the respondents’ General
Manager: Emergency Medical and Rescue Services KwaZulu-Natal, served
a notice on the appellant informing her of her discharge from the
Public Service in terms of section 17 of the Public Service Act,
1994. The notice dated 18 August 2011 reads thus:
‘
NOTICE OF
DISCHARGE IN TERMS OF SECTION 17 OF THE PUBLIC SERVICE ACT, 1994”
It has come to my
attention that you have been absent from work for more than 30 days
as from 11/09/2010 to date without a permission
from your Line
Manager. In the premises, you are advised that you are deemed to have
been discharged from your employment in terms
of section
17(5)(a)(i)
[3]
of the Public Service Act with effect from 11/09/2010
Your emoluments have been terminated
and all remuneration paid during period 11 September 2010 to date
will be deducted from your
pension once relevant process have been
initiated.’
[14]
In
response to the aforesaid notice, the appellant wrote to the
respondents through her attorneys advising that she does not accept
the termination and reasons therefor; that she had lodged a grievance
with PHSBC for which she was still awaiting an allocation
of a case
number; that her dismissal was unfair and that she intended
challenging it. There was no response to the letter by any
of the
respondent’s officials.
[15]
On
1 September 2011, the appellant referred a dispute of unfair
dismissal to the Bargaining Council. At the hearing of the dispute,
the respondents raised a point
in
limine
contesting the jurisdiction of the Bargaining Council on the basis
that the appellant had not been dismissed as she was deemed
dismissed
in terms of s 17(3)(a)(i) of the PSA . The arbitrator upheld the
point
in
limine
and dismissed the referral and made no award as to costs.
[16]
Aggrieved
by the award of the arbitrator, the appellant submitted written
representation on 16 January 2012 stating inter
alia
that:
‘
Kindly
advise us whether your office is willing to reconsider your stance on
the discharge as our client is of the view that she
was certainly not
absent without leave or without just cause and that your department
was aware of her absence. Our client also
has been a valuable member
of the EMRS for a considerable period of time and will surely be of
use to the department given her
expertise on and off the field. Our
client is not in position to report for operational duties due to her
health condition but
she would however be willing to consider
returning to the control room or a similar environment.
We await your urgent response herein.’
[17]
The
respondents did not respond to the representation made by the
appellant. The appellant wrote letters directly to the State Attorney
on
7
February 2012,
and
to the Emergency Medical Rescue services on 17 February 2012, 14
March 2012 and 29 March 2012 respectively requesting a response
to
her representations, and alternatively to have a meeting with the
Management for an amicable resolution of the dispute. Unfortunately,
none of these efforts solicited any response from either the
respondents or the State Attorney.
[18]
The
appellant lodged a review application with the Labour Court on 4 July
2012 seeking to review the arbitration award that dismissed
her
referral for lack of jurisdiction of the Bargaining Council. The
review application was ultimately set down for hearing on
21 November
2013. On this day, the review application was withdrawn and her
erstwhile attorneys were ordered to pay costs of the
application
de
bonis propris
.
[19]
On
26 November 2013, the appellant made an application in terms of s
17(3)(a)(i) of the PSA to the first respondent in which she
requested
her reinstatement to her position. As part of the motivation for the
application she attached copies of all the medical
certificates and
leave forms that she had submitted to the department. She once again
did not receive any response from the first
respondent. Her letter
dated 26 March 2014 requesting a response suffered the same fate.
[20]
Upon
receipt of further legal advice, the appellant launched the
application in terms of s 158(1)(h) of the LRA which is the subject
of this appeal after she was unsuccessful in the Labour Court.
[21]
In
the court
a
quo
,
the appellant contended that the failure by the respondents to
respond to her application for reinstatement after being deemed
dismissed is, by implication, a decision refusing to reinstate her.
It is this alleged decision that the appellant sought to set
aside
and that the respondents be ordered to reinstate her retrospectively
to the date of her alleged deemed dismissal. In short,
the appellant
accepted that she had been deemed dismissed by operation of law in
terms of s 17(3)(a)(i) of the PSA and that she
was entitled to be
reinstated in view of the representations she made in terms of
s 17(3)(b) of the PSA.
[22]
The
respondents in turn opposed the application on two bases. The first,
was that the appellant had failed to show on the papers
that there
was any decision taken on 18 October 2011 as stated in the Notice of
Motion. In my view, this is an overly technical
defence because the
respondents’ officials must have known that reference to
October was a typographical error because their
own letter notifying
the appellant of her discharge was in fact written and dated in
August. This ground lacked merit and should
have been out rightly
dismissed. The second basis of opposition was that as a matter of
fact, when the review application was launched
by the appellant no
decision had been taken by the relevant authority (the Head of the
Department (HOD)) regarding the appellant’s
application for
reinstatement; accordingly there was no “decision taken”
to review in terms of s 158(1)(h) of the LRA.
[23]
In
dismissing the appellant’s application for review, the court
a
quo
accepted the respondents’ contention that the appellant had
failed to establish the existence of a “decision taken”
by the respondents and thus a review was incompetent. The court
a
quo
reasoned,
inter
alia
,
that all that the appellant had shown was a failure to respond within
five months to the application for reinstatement and that
since the
appellant could not refer the court to any relevant legislation or
policy prescribing the time period within which the
HOD had to
respond, an assumption that a decision to refuse had been taken is
not correct because more was required for such an
assumption to be
made. The court
a
quo
held that an appropriate relief that the appellant ought to have
sought would have been an order that the HOD be compelled to make
and
deliver a decision on her application for reinstatement. The court
however suggested to the HOD to immediately take a decision
on the
appellant’s application for reinstatement.
[24]
In
this Court, Ms Naidoo on behalf of the appellant contested the
findings of court
a
quo
that the appellant failed to justify a conclusion that a decision had
been taken; that she could only show that there has been
a failure to
respond within five months and failed or should have placed the
respondents on terms to take a decision on her application
for
reinstatement. It was further contended that the court
a
quo
erred in failing to consider the evidence presented by the appellant
on the papers and as such committed a misdirection which led
to the
court arriving at a wrong conclusion.
[25]
Predictably,
Mr Choudree SC, who appeared on behalf of the respondents, contended
that the judgment of the court
a
quo
was unassailable; that the court
a
quo
made correct factual and legal findings and that the appeal should be
dismissed.
[26]
In
light of the approach I take of this matter, it shall not be
necessary to deal with the contentions of the parties in any detail.
I say this in view of the fact that the first inquiry should have
been whether, given the facts and chronology of the events in
the
matter, it can be said that the appellant was properly deemed to have
been dismissed in terms of s 17(5) of the PSA. Absent
a correct
deemed dismissal, there would be no need for the procedure set out in
s 17(3)(b) of the PSA.
[27]
Section
17(3) of the PSA provides:
‘
(a) (i) An
officer, other than a member of the services or an educator or a
member of the National Intelligence Services, who absents
himself or
herself from his or her official duties without permission of his or
her head of department, office or institution for
a period exceeding
one calendar month, shall be deemed to have been discharged from the
public service on account of misconduct
with effect from the date
immediately succeeding his or her last day of attendance at his or
her place of duty.
(ii) If such an officer assumes other
employment, he or she shall be deemed to have been discharged as
aforesaid irrespective of
whether the said period has expired or not.
(b) If an officer
who is deemed to have been so discharged, reports for duty at any
time after the expiry of the period referred
to in paragraph (a), the
Commission may, notwithstanding anything to the contrary contained in
any law, recommend that, subject
to the approval of the relevant
executing authority, he or she be reinstated in the public service in
his or her former or any
other post or position on such conditions as
the Commission may recommend, and in such a case the period of his or
her absence
from official duty shall be deemed to be absence on
vacation leave without pay or leave on such other conditions as the
Commission
may recommend.’
[28] In order for an
employee to be deemed dismissed in terms of s 17(3)(a) of the PSA
he/she must have absented himself/herself
from official duties
without permission of the employer or the HOD for a period exceeding
one calendar month. Since the deemed
dismissal takes effect by
operation of law and not by any act on the part of the employer, the
jurisdictional requirements prescribed
by the legislature in s
17(3)(a) of the PSA must be met before an employee can be said to be
deemed dismissed.
[29] In this matter, one
may accept that the appellant did not report for duties. However, the
uncontroverted evidence is that the
appellant was sick and continued
to, for a continuous period of her absence, complete sick leave forms
with medical certificates
attached and submitted them to her
employer. Furthermore, in the absence of any indication that her sick
leave was not approved,
she was entitled to accept that her absence
was with leave of the employer. Every time she submitted these
documents the respondents’
officials accepted and acknowledged
receipt. These officials knew of her condition and whereabouts. The
respondents, on the other
hand, continued to pay her salary until
August 2011. They would not have continued to pay her salary if she
was absent without
their permission.
[30] Given the
circumstances of her absence, it would be wrong to conclude that the
appellant was absent without the permission
of her employer. It would
appear that the deeming provision was applied as an afterthought when
nothing had been done by the respondents
to address the appellant’s
situation. My conclusion in this regard is based on the fact that the
notice communicating the
alleged deemed dismissal was only issued on
18 August 2011 and applied retrospectively to 11 September 2010,
ignoring what had
been happening since then. My conclusion on the set
of facts presented is, therefore, that the jurisdictional
requirements for
the appellant to be deemed dismissed because of
being absent for a period exceeding one calendar month without the
permission and
or knowledge of the HOD, office or the institution
have not been satisfied, and as such there was no need for her to
make representations
in terms of s 17(3)(b) for her reinstatement.
[31] There is one matter
which is of great concern to me. This relates to the conduct of the
respondents’ officials in their
dealings with the appellant.
Most of the time the appellant’s letters could not solicit a
courtesy of a response from the
respondent. This is an unacceptable
conduct from a public office such as that of the respondents run on
tax payer’s funds.
The same applies to the failure by the
respondents’ officials to respond to the appellant’s
formal application for
reinstatement. What is more perplexing is that
their failure to respond is subsequently used as a defence to the
review application
that there had not been a decision taken that can
be a subject of review. They are prepared to use their failure to do
what is
expected of them to their benefit.
[32] In the result, the
appeal succeeds and the order of the court
a quo
is set aside
and replaced with the following order:
a) The appellant is not
deemed dismissed.
b) The respondents are to
reinstate the appellant with immediate effect retrospectively to 11
August 2011 with benefits on the same
terms and conditions that
previously pertained to her as if she had not been dismissed.
c) The respondents to pay
the costs in the Labour Court and of the appeal.
______________
Tlaletsi DJP
Landman JA and Phatshoane
AJA concur
APPEARANCES:
FOR THE APPELLANT: Adv A
Naidoo
Instructed by R Ramdayal
Attorneys
FOR THE RESPONDENT: Adv
RBG Choudree SC and F Abraham
Instructed
by The State Attorney, Durban.
[1]
Act 66 of 1995.
[2]
Act 103 of 1994 as amended by Act 30
of 2007.
[3]
Section 17(5) has
since been substituted by
s 25
of the
Public Service Amendment Act
30 of 2007
and is now ss 17(3)(a) of the Public Service Act. There
are no material differences between the two sections.