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[2017] ZALAC 68
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Ramonetha v Department of Roads and Transport Limpopo and Another (JA104/2016) [2017] ZALAC 68; [2018] 1 BLLR 16 (LAC); (2018) 39 ILJ 384 (LAC) (1 November 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA104/2016
In the matter between:
M
J
RAMONETHA
Appellant
and
DEPARTMENT OF ROADS AND TRANSPORT
LIMPOPO
First
Respondent
pitso moloto, MEC: department of
ROADS
AND
TRANSPORT
N.O.
Second Respondent
Heard:
7 September 2017
Delivered:
01 November 2017
Summary:
The appellant was absent from work without permission for a period in
excess of 30 days. On his return, he was permitted
to continue
employment for more than seven months, during which period he was
paid for his services. Eight months later a misconduct
hearing was
convened at which it was found that s17(3)(a)(i) of the Public
Service Act 103 of 1994 applied and that the appellant
had no right
to a hearing. Eleven months later the appellant was notified by the
Department that he had been deemed to have been
dismissed in terms of
s17(3)(a)(i) as a consequence of his unauthorised absence from work.
The MEC rejected the appellant’s
representations that good
cause existed to justify his reinstatement in terms of s17(3)(b) and
the appellant sought the review
of that decision in terms of
s158(1)(h) of the LRA. The Labour Court dismissed the review
application on the basis that the respondents
had not acted
ultra
vires
the provisions of the PSA and there was no good cause shown as to why
the appellant should be reinstated. On appeal: reviewed in
terms of
s158(1)(h) on the grounds of legality. Decision of MEC found to be
unlawful, arbitrary and irrational since appellant
had been
reinstated for seven months after his deemed dismissal. Judgment of
the Labour Court set aside and substituted with order
that the
appellant is reinstated retrospectively into his employment with
Department. Appeal succeeds with costs.
Coram:
Coppin JA, Sutherland JA and Savage AJA
JUDGMENT
SAVAGE AJA:
Introduction
[1]
This
is an appeal, with the leave of the Labour Court (Baloyi AJ), against
the dismissal of an application in terms of s158(1)(h)
of the Labour
Relations Act 66 of 1995 (the LRA). The appellant, Mr M J Ramonetha,
a former employee of the first respondent, the
Department of Roads
and Transport, Limpopo (the Department), sought the review and
setting aside of the refusal of the second respondent,
the Member of
the Executive Council for Roads and Transport in Limpopo (the MEC) to
reinstate him into his employment with the
Department. This followed
notice having been given to the appellant on 21 May 2012 of his
deemed dismissal due to his having been
absent from work without
authorisation for a period in excess of one calendar month.
[2]
The
appellant was employed by the Department on 7 April 1993 as a traffic
officer. On 10 February 2011, he left work to consult
a doctor and
remained absent without authorisation until his return, more than
four months later, on 17 June 2011. During the period
of his absence,
his station commander made repeated attempts to establish the
appellant’s whereabouts until, on 7 April 2011,
he was informed
by a family member that the appellant was ill. Although he requested
a medical certificate from the appellant,
no certificate was
produced. The appellant returned to work on 17 June 2011 and three
days later, on 20 June 2011, he furnished
the Department with a
letter from a traditional healer but with no medical certificate. The
appellant’s station commander
requested that an investigation
be conducted by the Department into the matter. For more than seven
months from the date of his
return to work the appellant continued
working for the Department and was paid for his services. This
remained so until seven months
later, on 16 February 2012, the
appellant was notified to attend a “
misconduct
hearing
”
on the basis that he had committed a “
contravention
of Resolution 1 of 2003 in that he absconded from work for 84 days
…”.
[3]
On 29
March 2012, the chairperson of the misconduct hearing found that,
since the appellant had been absent for more than one calendar
month,
he had in terms of s17(3)(a)(I) of the Public Service Act 103 of 1994
(the PSA) been deemed to have been dismissed from
his employment with
the Department by operation of law. Section 17(3)(a)(i)
provides
that:
‘
(i)
An employee, other than a member of the services or an educator or a
member of the
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 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’.
[4]
The
chairperson found that the appellant had no right to a hearing, with
there being no jurisdiction to determine the matter at
such a
hearing. The appellant was informed that he was entitled to make
representations to the executing authority, being the MEC,
“
as
to why your services should not remain terminated
”.
Section 17(3)(b) reads as follows:
‘
(b)
If
an employee who is deemed to have been so dismissed, reports for duty
at any time after the expiry of the period referred to
in
paragraph
(a)
,
the 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, and in such
a case
the period of his or her absence from official duty shall be deemed
to be absence on vacation leave without pay or leave
on such other
conditions as the said authority may determine.’
[5]
Thereafter,
on 21 May 2012, more than 11 months after his return to work on 17
June 2011, the appellant received a letter from the
Head of the
Department in which it was stated that due to the extent of his
unauthorised absence from work:
‘
You
have therefore terminated your contract with the
[Department]…
This
means that the termination of your contract is by operation of law as
this termination is triggered by your conduct and not
based on the
employer’s decision
’.
[6]
The
appellant thereafter made representations to the MEC, as the
executing authority, in terms of s17(3)(b). On 3 September 2012,
he
was informed that the MEC had rejected his representations, that his
services had been “
terminated
by operation of law and that there is no dismissal as contemplated by
section 186 of the LRA”
.
[7]
Aggrieved
with the termination of his employment, the appellant referred an
unfair dismissal dispute to the General Public Service
Sectoral
Bargaining Council (GPSSBC) for determination. On 29 October 2012,
the GPSSBC ruled that it lacked jurisdiction to determine
the matter
given that the appellant had not been dismissed from his employment
as contemplated in s186 of the LRA.
[8]
The
appellant thereafter sought the review by the Labour Court, in terms
of s158(1)(h) of the LRA, of the MEC’s refusal to
reinstate
him. He did so on the basis that he did not abscond from work and
that it had been “
incorrectly
determined
”
by the respondents that he had; that the respondents had irrationally
inferred that he had no intention to return to work;
that
s17(3)(a)(i) was implemented without factual basis and
ultra
vires,
with
the MEC failing to distinguish between s17(3)(a)(i) and s17(3)(b);
that the MEC had committed a gross irregularity in not applying
his
mind to appellant’s representations and reaching an
unreasonable decision; and that the Department had
waived
its right to rely on s17(3)(a)(i) by allowing the appellant to
commence work after his absenteeism, remunerating him for
the
services rendered.
[9]
In
opposing the review application, the respondents contended that when
the appellant returned to work, although he was not informed
of this,
his services had been terminated by operation of law; and that
neither the investigation undertaken by the Department,
nor the
misconduct enquiry, restored the employment relationship “
even
though
[the
appellant]
continued
to receive his salary
”.
Consequently, it was stated that the MEC had after a “
proper
consideration
”
rejected the appellant’s representations and refused to
reinstate him.
[10]
The
Labour Court, accepting that
it
had jurisdiction under s158(1)(h) to determine the review
application, found that
the
appellant’s employment had been terminated by operation of law.
The respondents had therefore not acted
ultra
vires
the provisions of the PSA and, with no good cause shown to warrant
reversing the termination of employment, t
he
review application was dismissed with costs.
[11]
On
appeal, the appellant contended that while the Labour Court was
permitted to review the decision on any ground permissible in
law,
the decision of the MEC was neither rational nor reasonable and that
the review should therefore have succeeded. The respondents
opposed
the appeal on the basis that the decision of the MEC was neither
arbitrary nor irrational. Continued employment was rendered
intolerable by the appellant’s extended unauthorised absence
from the workplace. Consequently, it was submitted for the
respondents that the appeal falls to be dismissed with costs.
Evaluation
[12]
The
Labour Court, in terms of s158(1)(h) of the LRA, may “
review
any decision taken or any act performed by the state in the capacity
as employer on such grounds that are permissible in
law
”.
This
is
a
generic
provision
establishing
the jurisdiction of the Court,
[1]
with
what constitutes the “
grounds
permissible in law
”
having over time been a matter of some debate.
[13]
In
Gcaba
v Minister for Safety and Security and Others,
[2]
(
Gcaba)
the Constitutional
Court found that the failure to promote an employee is “
a
quintessential labour-related issue
”
and not administrative action. This was so in that the unfair labour
practice jurisdiction of the LRA gives effect to the
constitutionally
recognised right to fair labour practices, almost as clearly as it
does to unfair dismissal, which was the subject
of the dispute in
Chirwa
v Transnet Ltd and Others,
[3]
(
Chirwa
)
in which matter the Court made it clear that where
“
an
employee alleges non-compliance with provisions of the LRA, the
employee must seek the remedy in the LRA
”.
[4]
The reasoning in
Gcaba
was
that:
‘
Generally,
employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. This is
recognised
by the Constitution. Section 23 regulates the employment relationship
between employer and employee and guarantees the
right to fair labour
practices. The ordinary thrust of s 33 is to deal with the
relationship between the state as bureaucracy and
citizens and
guarantees the right to lawful, reasonable and procedurally fair
administrative action. Section 33 does not regulate
the relationship
between the state as employer and its workers. When a grievance
is raised by an employee relating to the
conduct of the state as
employer and it has few or no direct implications or consequences for
other citizens, it does not constitute
administrative action
.’
[5]
[Footnotes
omitted]
[14]
In
De
Villiers v Education, Western Cape Province,
[6]
the Labour Court
found that the discretion not to reinstate an employee’s
contract of employment
after a deemed dismissal in terms of
s14
of
the
Employment of
Educators
Act 76 of 1998
,
a
provision similar to
s17
of the PSA, involved the exercise of a
statutory power, which, since it did not have its source in the
employment contract, constituted
administrative action. This was
found to be so recognising that -
‘
…
as
a general rule, conduct by the state in its capacity as an employer
will generally have no implications or consequences for other
citizens, and it will therefore not constitute administrative action.
Employment related grievances by state employees must be
dealt with
in terms of the legislation that gives effect to the
right
to fair labour practices, or any applicable collective agreements
concluded in terms of that legislation. Departures from
the general
rule are justified in appropriate cases. An assessment must be
conducted on a case-by-case basis to determine whether
such a
departure is warranted. The relevant factors in this determination
(following SARFU
[7]
)
are the source and nature of the power being exercised (this would
ordinarily require a consideration of whether
the
conduct was rooted in contract or statute …, whether it
involves the exercise of a public duty, how closely the power
is
related to the implementation of
legislation
(as opposed to a policy matter) and the subject-matter of the power).
I venture to suggest that the existence of any
alternative remedies
may also be a relevant
consideration
- this was a matter that clearly weighed with the court in
both Chirwa and Gcaba, who it will be recalled,
were
found to have had remedies available to them under the applicable
labour legislation.’
[8]
[15]
The
Court concluded that if ove
rsight
in the form of a review in terms of
s158(1)(h)
were not to be
exercised over the statutory power exercised, that power would be
left unchecked.
[9]
[16]
In
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal,
[10]
the MEC sought
the
setting aside of the promotion of two employees on the basis that the
promotions were not lawful, reasonable or fair and that
they were
invalid. T
he
Constitutional Court
found
that the true nature of the application was a review of the legality
of the promotions under the Public Service Act (Proclamation
109 of
1993) and not a review of administrative action under PAJA. The Court
stated that an
y
reliance
on
s33
of
the Constitution of the Republic of South Africa, 1996 (Constitution)
or PAJA to establish the grounds of review “
would
be misplaced in the light of this Court’s jurisprudence and the
particular facts of this matter
”
[11]
when “
the
true nature of the application is one for judicial review under the
principle of legality, sought in terms of section 158(1)(h)
”.
[12]
[17]
While
in
MEC
for Department of Health v Weder,
[13]
a review under s158(1)(h) of a decision taken in terms of s17(3)(b),
this Court proceeded on the basis of a concession made by
counsel for
the appellant that the review was one based on the residual principle
of legality,
[14]
in
Hendricks
v Overstrand Municipality,
[15]
Hendricks
)
it was found that a review in terms of s158(1)(h)
of
a
decision
not
to dismiss a senior municipal police official on corruption charges,
concerned the review of administrative action within the
meaning of
PAJA. In
Hendricks
,
the
Court approached the matter on the basis that a decision taken by the
state in its capacity as employer could be reviewed on
any grounds
permissible in law, if no other remedy is available. The grounds
permissible in law were identified as
(i)
those listed in PAJA, provided the decision constitutes
administrative action; (ii) in terms of the common law in relation to
domestic or contractual disciplinary proceedings; or (iii) on the
basis of the constitutional principle of legality.
[16]
Thereafter, in
Merafong
City Local Municipality v South African Municipality Workers Union
and Another,
[17]
this Court took the
view that the grounds permissible in law for a review in terms of
s158(1)(h) included legality and rationality;
and,
if the acts constitute administrative action, on those grounds
stipulated in PAJA.
[18]
More
recently in
Minister
of Labour and Another v Public Services Association of South Africa
and Others,
[18]
a review of the
Minister’s
reversal
of the designation of an official appointed as Registrar of Labour
Relations in terms of s108(1) of the LRA, this Court,
recognising
a
fine line between administrative action under section 33 of the
Constitution and public and employment relationship issues in
the
public sector,
[19]
found that the decision of the Minister constituted administrative
action within the meaning of s33 of the Constitution.
[20]
It found this to be so having regard to the source and nature of the
action, whether the action involves, or is closely related
to, the
formulation of policy, or to the initiation and/or implementation of
legislation.
[21]
[19]
The
current matter is concerned with the exercise of a power in terms of
s17(3)(b), which neither has its source in the contract
of
employment, nor falls within the ambit of either the LRA’s
unfair dismissal or unfair labour practice jurisdiction. As
such, the
decision whether to approve the reinstatement of an employee on good
cause shown, while a decision taken by the state
as employer,
involves the exercise of a legislated public power by a public
functionary.
[20]
The
appellant
sought
that the MEC’s decision be set aside on a number of grounds
which included unlawfulness, irrationality and with a faint
reference
made to unreasonableness. Whilst he would have benefitted from a
clearer pleading of the grounds on which he sought the
review, in
essence the application was approached on the basis that the MEC’s
decision was reviewable on grounds of legality.
[21]
It
is now trite that i
nherent
in our constitutional order is the principle of legality in terms of
which by virtue of the rule of law public functionaries,
in their
exercise of public power, are required to act within the powers
granted to them by law
[22]
and arrive at decisions which are lawful, not arbitrary and are
rationally related to the purpose for which the power was given.
[23]
There can be little
doubt that that the MEC’s decision is capable of review under
s158(1)(h) on the grounds of legality.
Since
it was not contended that the MEC’s decision constituted
administrative action, whether a review on such basis would
be
apposite does not require determination in this matter.
[22]
Turning
to the facts of this case, since s17(3)(a)(i) provides that an
employee
‘…
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’,
after
having been absent from work for a period exceeding one calendar
month, the appellant was deemed, given his unauthorised absence
in
excess of this period, to have been dismissed from his employment by
operation of law
‘
with
effect from the date immediately succeeding his … last day of
attendance at his … place of duty’.
Yet, on his
return
to work on 17 June 2011, the appellant was not informed by the
Department of his deemed dismissal. Instead, he
was
permitted to return to his work and continued to render services for
the Department as his employer for a period in excess of
seven
months, during which time it was undisputed that he was “
issued
with duties and instructions
”
and was remunerated by the Department for his services.
[23]
By
its nature, an employment contract
is
an agreement in which an employee works for an employer in exchange
for remuneration.
[24]
In
accepting the appellant’s tender of performance and
remunerating him for his services, the only conclusion to be drawn
on
the facts is that, on his return to work, the Department implicitly
reinstated the appellant into his employment with it. This
is so
given that
his
deemed dismissal took effect by operation of law in terms of
s17(3)(a)(i) on “
the
date immediately succeeding the employee’s last day of
attendance at his or her place of duty
”
and not on any later date determined by the employer.
The
appellant could no
longer be deemed to have been dismissed after he had been reinstated.
[24]
If
reinstatement did not follow his deemed dismissal, it is difficult to
understand on what basis the Department then accepted the
appellant’s
tender of his services and compensated him for those services
rendered. Furthermore, the fact that an investigation
may have been
contemplated to determine the reason for the appellant’s
absence from work, or that such investigation in due
course was
undertaken, does not alter the fact that the law prescribed the date
on which the appellant’s deemed dismissal
took effect. Nor does
it alter the fact that the appellant had been reinstated into his
employment subsequent to such deemed dismissal
having been effected.
[25]
The
Department was, following the appellant’s reinstatement, not
entitled thereafter to rely on his deemed dismissal, when
no further
period of unauthorised absence from work had arisen after the
appellant’s return to work. Given such reinstatement,
it was
not open to the Department under s17(3)(a)(i), to indicate, as it did
in its letter of 21 May 2012, 11 months after the
appellant’s
return to work, that his
contract
of employment had been terminated by operation of law.
[26]
It
follows that in relying on the appellant’s deemed dismissal
after he had been reinstated, the MEC acted unlawfully, irrationally
and outside of the powers granted to him by law. This is so in that
it was not legally permissible for the Department on 21 May
2012 to
rely on a deemed dismissal, which by operation of law had taken
effect
on
“
the
date immediately succeeding the employee’s last day of
attendance at his or her place of duty
”
and
when
the employment relationship between the parties had thereafter been
restored. The failure of the MEC on 3 September 2012 to
find this to
be so in considering the appellant’s representations in terms
of s17(3)(b), was therefore unlawful, arbitrary
and irrational and
the Labour Court erred in failing on review to find so.
[27]
Although
counsel for the respondents sought to place reliance on
Du
Toit v Minister of Safety and Security and Another,
[25]
in which it was held that a police officer’s deemed discharge
following a prison sentence cannot be undone by extinction
of the
conviction through the granting of amnesty, the facts of that matter
are distinguishable in that in that matter no decision
to reinstate
had been taken following the deemed dismissal.
[28]
It
follows for these reasons that the decision of the MEC fell to be set
aside on review on the application of the principle of
legality.
Having found this to be so, it is not necessary to determine the
merits of a review of the MEC’s decision as administrative
action.
[29]
Since
reinstatement is the primary remedy provided in terms of s193 of the
LRA, there is no reason as to why the appellant, who
had a long and
previously unblemished record of service and who seeks reinstatement,
should not be retrospectively reinstated into
the same or similar
position of employment with the Department.
[30]
Having
regard to considerations of law and fairness there is no reason as to
why costs should not follow the result.
Order
[31] For these reasons, the following
order is made:
1.
The
appeal succeeds with costs.
2.
The
order of the Labour Court is set aside and replaced as follows:
‘
1.
The
application in terms of
s158(1)(h)
of the
Labour Relations Act 66 of
1995
to review the decision on 3 September 2012 of the second
respondent, the Member of the Executive Council for Roads and
Transport,
Limpopo Province, succeeds with costs.
2.
The decision of the second respondent on 3 September 2012 not to
reinstate the
appellant, Mr M J Ramonetha, is set aside.
3.
The first respondent, the Department of Roads and Transport, Limpopo
Province,
is to reinstate the appellant, with retrospective effect
and by no later than 30 November 2017, into the same or similar
position,
with the period of the appellant’s unauthorised
absence from work from 10 February 2011 to 17 June 2011 to be treated
as
unpaid leave.
4.
Back pay is to be paid to the appellant by the first respondent by no
later than
30 November 2017, with interest accruing on such amount
thereafter at the prescribed rate of 10,5%.’
______________
Savage
AJA
Coppin
JA and Sutherland JA agree.
APPEARANCES:
FOR
THE APPELLANT:
Mr C Goosen
Instructed by
Thapelo Kharametsane Attorneys
FOR
THE RESPONDENTS: Mr M
B Matlejoane
Instructed by the
State Attorney
[1]
Khumalo
and another v Member of the Executive Council for Education:
KwaZulu-Natal
2014
(3) BCLR 333
(CC) at para 28;
Merafong
City
Local Municipality v South African Municipality Workers Union and
Another
[2016] 8 BLLR 758
(LAC) at paras 35-39.
[2]
2010
(1) SA 238
(CC) at para 66.
[3]
[2008]
2 BLLR 97
(CC)
.
[4]
Ngcobo
J at para
124.
[5]
At
para 64.
[6]
(2010)
31 ILJ 1377 (LC) at para 21.
[7]
President of the Republic of South
Africa and Others v South African Football Union and Others
2000
(1) SA 1 (CC).
[8]
At
para 19.
[9]
At
paras 20 and 24.
[10]
2014
(3) BCLR 333 (CC).
[11]
At
para 27.
[12]
At
para 28.
[13]
[2014]
7 BLLR 687
(LAC) at paras 33-35.
[14]
At
para 33.
[15]
[2014]
12 BLLR 1170
(LAC) at paras 21 and 32.
[16]
At
para 29.
[17]
[2016]
8 BLLR 758 (LAC).
[18]
[2017]
(2017) 38 ILJ 1075 (LAC).
[19]
At
para 49.
[20]
At
para 57.
[21]
At
para 52.
[22]
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998]
ZACC 17
;
1999 (1) SA 374
(CC) at para 58.
[23]
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.
[24]
Board
of Executors Ltd v McCafferty
(
1997)
ILJ 949 (LAC); [
1997]
7 BLLR 835
(LAC)
.
[25]
[2008] ZASCA 125
;
2009
(1) SA 176
(SCA).