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[2019] ZALAC 38
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Member of the Executive Council for the Department of Education Western Cape Government v Jethro N.O and Another (CA10/2018) [2019] ZALAC 38; [2019] 10 BLLR 1110 (LAC); (2019) 40 ILJ 2318 (LAC) (13 June 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA 10/2018
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR
THE
DEPARTMENT OF EDUCATION
WESTERN
CAPE GOVERNMENT
Appellant
and
MUNIMAH
JETHRO N.O
First
Respondent
EDWIN
JOHN PIETERSEN
N.O Second
Respondent
Heard:
03 May 2019
Delivered:
13 June 2019
Summary:
Discharge from public service on account of abscondment in terms of
the Employment of Educators Act- employer with ill-health
related
conditions was discharged from employment- his application in terms
of 14(2) of the EEA for reinstatement was dismissed
because employee
had not demonstrated good cause warranting his reinstatement–
employee challenging the refusal to reinstatement
on the basis of
irrationality – employer contending that its conduct does not
amount to administrative action and that its
decision was rational
because employee did not submit sick note evincing his illness
Held
that
:
A letter informing an employee of his or her deemed discharge by
operation of law under section 14(1) of the EEA involves no decision
or exercise of a public power, and thus cannot constitute
administrative action; but a decision taken under section 14(2) of
the
EEA constitutes a decision of an administrative nature … a
decision by the Head of Department, charged with the exercise
of a
statutory discretion to reinstate on good cause shown an employee
deemed to have been discharged, constitutes administrative
action
reviewable in terms of PAJA.
Further
that various factors are relevant in determining whether good cause
exists for reinstatement under section 14(2) of the
EEA … Much
will depend on the facts and circumstances of the case - In the
process, mitigating factors were ignored
or not weighed
appropriately, including: the employee’s lengthy service, clean
disciplinary record and proven ill health
before 1 March 2013, as
well as the fact that his salary had been stopped in January 2013.
The failure to assess properly the tolerability
or practicability of
a continued employment relationship caused the impugned decision to
be rationally disconnected to the relevant
information and the
purpose of section 14(2) of the EEA. Labour Court’s judgment
upheld and appeal dismissed with costs.
Coram:
Coppin JA, Murphy and Savage AJJA
JUDGMENT
MURPHY
AJA
[1]
This is an appeal against a decision of the Labour Court (van Niekerk
J) setting aside
the decision of the appellant taken in terms of
section 14(2) of the Employment of Educators Act
[1]
(“the EEA”) and reinstating the late respondent, Mr.
Roland Jethro, who passed away shortly before the appeal was heard.
Mr. Jethro has been substituted in the appeal by the first and second
respondents, the executors of his deceased estate. However,
for
convenience, I will refer to Mr. Jethro as “the respondent”.
The
facts
[2]
The respondent commenced his employment with the Department of
Education, Western
Cape (“the Department”) on 27 March
1995. At the time of his discharge on in early 2013, he was employed
as an educator
and as a department head at Gugulethu Comprehensive
School. He had occupied this post for 17 years.
[3]
From August 2012, the respondent suffered from depression,
hypertension and acute
stress. He applied for normal sick leave from
13 to 17 August 2012, and then from 23 August to 27 August 2012, 28
August 2012,
9 to 19 October 2012, 23 October to 16 November 2012 and
from 19 November to 10 December 2012.
[4]
On 25 October 2012, he applied for temporary incapacity leave in
respect of the period
25 October 2012 until 16 November 2012 –
a period of 17 days (“the first application”). In terms
of the Policy
and Procedure on Incapacity Leave and Ill-Health
Retirement (“PILIR”) determined by the Minister of Public
Service
and Administration in terms of s 3(2) of the Public Service
Act, an employee who has exhausted his/her normal sick leave and who
according to a medical practitioner is required to be absent from
work due to a temporary incapacity, may apply for temporary
incapacity leave with full pay on the applicable application forms,
in respect of each occasion.
[5]
On 12 November 2012, the respondent submitted another application for
temporary incapacity
leave from 25 October 2012 to 11 December 2012,
overlapping with the first application (“the second
application”).
[6]
On 16 December 2012, the respondent suffered serious injuries to his
upper-arm muscles,
a cut in his head and his left hand caused by an
attack with a blunt instrument by a gang member at his home in
Hanover Park. He
received treatment at Groote Schuur Hospital where
his left hand was placed in a half cast.
[7]
The first application for temporary incapacity leave was declined in
late January
or early February 2013. The reasons for the refusal were
given as: i) the lack of sufficient objective medical information
detailing
the extent of his symptomatology, treatment received and
his response to the treatment to confirm that he would be
significantly
vocationally incapacitated from productive employment
during his period of absence; ii) the respondent’s injudicious
utilisation
of sick leave over the previous and current sick leave
cycles, coupled with excessive leave requests, significantly adjacent
to
weekends, with many incidents of short duration; iii) generally,
an overall impression of, irresponsible sick leave usage; and iv)
the
absence of conditions which significantly and severely incapacitated
him from working.
[8]
The second application was approved by default because the Department
neither approved
nor refused it within the prescribed time limit of
30 working days after receipt of the application. The PILIR provides
that if
the employer does not respond within the prescribed
time-frames, the leave will be approved by default unless there is
mutual agreement.
[9]
On 28 January 2013, the respondent obtained a further medical
certificate stating
that he was unfit for work from 17 January 2013 –
11 days prior to him obtaining this medical certificate - until 15
February
2013. However, he failed to apply for leave of absence for
this period. This appears to have resulted in the appellant stopping
his salary with effect from 25 January 2013.
[10]
On 18 February 2013, the respondent obtained another medical
certificate recommending sick leave
for a further period of two
weeks.
[11]
Notwithstanding his failure to formally apply for sick leave, the
recommended period of two weeks’
sick leave in the last medical
certificate issued on 18 February 2013, expired on 1 March 2013. The
respondent failed to return
to work upon the expiry of that
recommended sick leave. There is some dispute about the date upon
which the sick leave expired
– the respondent contends that he
should have returned to work on 5 March 2013, but did not, whilst the
Department contends
that he should have returned to work on 4 March
2013. Nothing turns on this difference in relation to the application
of the provisions
governing deemed discharge given the number of
consecutive days the respondent was absent from work.
[12]
Subsequently,
Mr
Booi, the principal of the school where the respondent worked,
addressed a letter to the Department dated 5 March 2013, the relevant
part of which read:
‘
This
is to confirm that Mr. R B Jethro’s …sick leave ended on
01 March 2013. He has not contacted the school or fax
a medical
certificate up until Tuesday the 5
th
March 2013….
Mr Jethro has been on leave since 25 October 2012 and he has not been
proactive in submitting his medical certificate.’
[13]
The letter confirmed that the Human Resources Department had frozen
the respondent’s salary.
[14]
The respondent denied that he had not contacted the school or sent
medical certificates. He claimed
to have remained in contact with
Booi and had submitted two applications for temporary incapacity
leave.
[15]
In a second letter dated 4 April 2013, Booi confirmed that on 21
February 2013, he had in fact
received the medical certificate dated
18 February 2013. He recorded that the respondent had phoned him on
21 February 2013 upon
which Booi told him that his two applications
were still pending and that his salary was frozen. Booi concluded the
letter by stating
that he wrote the letter of 5 March 2013, in order
for the school to have a substitute teacher in place until 31 March
2013.
[16]
On 9 April 2013, the Head of Education in the Department sent a
letter to the Director of
Labour
Relations which read:
‘
Mr
Jethro has been absent from duty since 18 January 2013.
He
submitted medical certificates covering the periods 17 January 2013
to 15 February 2103 and from 18 February 2013 for another
two weeks
(to 1 March 2013). Although submitting medical certificates, he has
not applied for leave of absence in the prescribed
manner.
Since
then he has made no further contact with his supervisor’.
[17]
The respondent takes issue with this interpretation of events. He
believed his applications for
temporary leave of absence were
adequate and assumed that because his salary had been stopped he did
not have to report to work.
[18]
On 10 April 2013, a departmental official named “Marna”
sent an internal memorandum
to Ms Lee Ann Bathgate requesting her to
investigate whether any attempts had been made by Booi to contact the
respondent. It is
common cause that no one contacted the respondent
during April 2013.
[19]
In an e-mail addressed to officials in the Human Resources Department
dated 19 April 2013, Ms
Bathgate confirmed that no attempts had been
made by the school to contact the respondent. The relevant part of
the e-mail reads:
‘
We
received the request to abscond and I in turn requested the principal
to determine the whereabouts of Mr Jethro since this was
not done.
Mr
Jethro contends that he stayed absent from work since his salary was
frozen for February 2013 without notification. He was under
the
impression that he no longer had to report for duty.
Upon
perusing his file, I noticed that he did submit medical certificates
to warrant his absence. Can you please advise as to why
his salary
was frozen when he substantiated his absence with a medical
certificate’”
[20]
On 23 April 2013, Mr Paul Adams replied to this e-mail as follows:
‘
Mr
Jethro submitted his medical certificates but not his applications
for leave of absence. It must be noted that this may have
been true
about his absence from 18 February 2013 but surely not for the period
from 17 January 2013 to 15 February 2013. His salary
was frozen on 25
January 2013, after his pay date for January 2013.’
[21]
A few days later, on 26 April 2013, the Head of Education dispatched
by registered post, which
was received by the respondent on 15 May
2013, a letter in the following terms:
‘
ABSCONDMENT:
YOURSELF
The
above-mentioned matter refers.
Please
be advised that according to departmental records, you have been
absent without permission since 02 March 2013.
As
you have failed to report for duty, you are hereby informed that in
terms of section 14(1)(a) of the Employment of Educators
Act, 76 of
1998 (hereinafter referred to as the Act) you are deemed to be
discharged from service on account of misconduct.
Please
be informed that 01 March 2013 is considered to be your last working
day. Arrangements are being made for the withdrawal
of your pension
benefits and the recovery of any departmental debt, if applicable.
Furthermore,
your attention is drawn to section 14(2) of the Act, in terms of
which you have the right to make representations against
this
decision. These representations must be forwarded to the Director:
Labour Relations.’
[22]
Section 14 of the EEA is headed: “Certain educators deemed to
be discharged.” It
provides as follows:
‘
(1)
An educator appointed in a permanent capacity who-
(a)
is absent from work for a period exceeding 14 consecutive days
without permission of the employer;
(b)
while the educator is absent from work without permission of the
employer, assumes employment in another position;
(c)
while suspended from duty, resigns or without permission of the
employer assumes employment in another position; or
(d)
while disciplinary steps taken against the educator have not yet been
disposed of, resigns or without permission of the employer
assumes
employment in another position,
shall,
unless the employer directs otherwise, be deemed to have been
discharged from service on account of misconduct, in the
circumstances
where-
(i)
paragraph (a) or (b) is applicable, with effect from the day
following immediately after the last day on which the educator
was
present at work; or
(ii)
paragraph (c) or (d) is applicable, with effect from the day on which
the educator resigns or assumes employment in another
position, as
the case may be.
(2)
If an educator who is deemed to have been discharged under paragraph
(a) or (b) of subsection (1) at any time reports for duty,
the
employer may, on good cause shown and notwithstanding anything to the
contrary contained in this Act, approve the reinstatement
of the
educator in the educator's former post or in any other post on such
conditions relating to the period of the educator's
absence from duty
or otherwise as the employer may determine.”
[23]
Section 14(2) of the EEA thus confers upon the employer
[2]
a discretion to reinstate an educator deemed to have been discharged
from service as contemplated in s 14(1)(a) of the Act, on
good cause
shown, on such conditions relating to the period of absence from
duty, or otherwise, as the employer may determine.
[24]
On 18 June 2013, the respondent’s union, SADTU, wrote to the
Head of Department a memorandum
relating to the subject: “Appeal
for reinstatement of Mr Jethro on account of abscondment”, as
follows:
‘
SADTU
Western Cape is registering an appeal against the dismissal of Mr
Jethro on account of abscondment. Mr Jethro feels aggrieved
by sudden
dismissal after he had communicated all his leave applications to
WCED via his Principal. There was no communication
between him and
the employer even an advice that his application for incapacity leave
was decline (sic) or his leave was not approved….
Mr
Jethro is aggrieved because he had informed the Principal of the
School about his absence and submitted all the relevant medical
evidence. According to s 14(1)(a) Mr Jethro’s discharge on
account of abscondment had no basis because he had communicated
his
absence to the Principal. We therefore humbly requesting (sic) that
the WCED relook at its decision and bring back Mr. Jethro
to the
classroom.’
[25]
Further correspondence during 2013 did not resolve the matter.
However, there is on record a
letter dated 29 November 2013 from the
Head of Department to the respondent which has not been properly
explained by either party.
It referred to a request for reinstatement
submitted on 15 November 2013 and advised that after careful
consideration of the representations,
the Department confirmed the
dismissal in terms of section 14(1) of the EEA based on the fact that
it was not convinced that good
cause had been shown for the
respondent’s unauthorised absence. It did not directly address
other issues relevant to the
existence of good cause for
reinstatement, being the apt enquiry under section 14(2) of the EEA.
[26]
The respondent evidently did not accept this outcome, because on 11
February 2014, Mr Jonavon
Rustin, the Provincial Secretary of SADTU,
sent a letter to Mr Salie Fakier, the Director of Labour Relations in
the Department,
confirming that SADTU
had
been in contact with the Human Resources Department regarding the
matter, that discussions had been on-going for some months
and the
matter remained unresolved. He stated that the deemed dismissal was
due to an absence related to illness and pointed out
that in terms of
the relevant collective agreement, SADTU and the appellant had agreed
that no educator would be dismissed based
on the operation of law if
the case was related to illness. He added that in terms of the
collective agreement, the union agreed
to assist locate the SADTU
member in such cases. Rustin emphasised that the whereabouts of the
respondent was known and that he
had submitted medical certificates.
[27]
At
a meeting with the Department on 14 April 2014, in an attempt to
resolve the matter, the respondent and Rustin agreed to furnish
the
Department with medical certificates which would prove that he
continued to suffer from depression after 1 March 2013. The
respondent, however, has since then not adduced any medical
certificates in relation to this period. As will become apparent, the
appellant places much in store by this lapse. It submitted that the
inference to be drawn is that the respondent was not genuinely
or
demonstrably ill as he contended, and had simply failed or refused to
report for duty.
[28]
Eventually, Rustin addressed a letter dated 7 October 2014 to the
Department making representations
and requesting the respondent’s
reinstatement. Unfortunately, there is not a complete copy of this
letter on record. However,
the Head of Department replied to it on 20
November 2014 as follows:
‘
Your
letter dated 7 October 2014 refers.
The
WCED has considered your latest representations regarding your
request for the reinstatement of Mr Jethro. However, there is
nothing
compelling or substantively different to warrant the WCED to
reconsider his discharge or his reinstatement.
As
such the WCED cannot accede to your request. His abscondment in terms
of section 14(1)(a) of the Employment Educators Act, 1998,
therefore
stands.’
[29]
On
24 April 2015, the respondent brought a review application in terms
of section 158(1)(h) of the Labour Relations Act
[3]
(“the LRA”) read with section 6 of the Promotion of
Administrative Justice Act
[4]
(“PAJA”).
On 22 April 2016, Rabkin-Naicker J set aside the appellant’s
decision taken in terms of section 14(2)
of the EEA on the grounds of
it being arbitrary and capricious. She ordered the appellant to
reconsider approving reinstatement.
[30]
After some earlier confusion about the implications of the order of
Rabkin-Naiker J, the appellant
decided on 17 June 2016 not to
reinstate the respondent. A letter of that date addressed to the
respondent’s attorneys sets
out the reasons for the decision as
being: i) the respondent had not reported for duty since 1 March 2013
(and thus had not satisfied
the pre-requisites of section 14(2) of
the EEA); ii) he had not submitted medical certificates for the
period 1 March 2013 to 26
April 2013; iii) the second PILIR
application was granted by default; iv) the agreement with SADTU was
not applicable to the respondent
because no PILIR application was
made for the period 1 March 2013 to 26 April 2013; and v) the
respondent had not complied with
an undertaking given in meetings
that he would supply medical certificates for the period 1 March 2013
to 26 April 2013.
[31]
The essential conclusion of the Head of Department that no good cause
for reinstatement existed
is set out in the final paragraphs of the
letter under the heading: “Continued Employment Relationship”
as follows:
‘
26.
You were no doubt aware that you could not remain absent from work
without your employer’s permission. This is evident
from the
fact that you submitted medical certificates to account for your
absence.
27.
Despite this knowledge, you have plainly disregarded the Department’s
procedures to obtain permission for your absence
since 1 March 2013,
resulting in the aforementioned consequences.
28.
Furthermore, and as you are aware, you had meetings with Departmental
officials after the MEC’s decision on 29 November
2013 not to
reinstate you. During those meetings, it was agreed that you would
provide the medical certificates to account for
your absence since 1
March 2013. You have not done so, leaving no justification for your
absence during the relevant period.
29.
It is in my view therefore not unreasonable to have inferred
desertion when the requirements of section 14(1)(a) were fulfilled
and is accordingly fair.
30.
In the circumstances, I am of the view that the employment
relationship, particularly the trust relationship, has broken down…
31.
In light of the above, I do not approve your request for
reinstatement to the post previously occupied by you, or in any other
post.’
The
Labour Court decision
[32]
The respondent sought a review in terms of section 158(1)(h) of the
LRA read with section 6 of
PAJA. Section 158(1)(h) provides that the
Labour Court may review any decision taken or act performed by the
State in its capacity
as employer, on such grounds that are
permissible in law. Section 6 of PAJA permits any person to institute
proceedings in a court
or tribunal for the judicial review of an
administrative action on various grounds if,
inter alia
, the
action was taken irrationally, in bad faith, arbitrarily or
capriciously. The respondent relied on various grounds specified
in
PAJA, but most relevantly: i) section 6(2)(f)(ii) of PAJA on grounds
that the action was not rationally connected to the purpose
of the
empowering provision, the information before the administrator and
the reasons given; and ii) sections 6(2)(e)(v) and (vi)
of PAJA on
grounds that the action was taken in bad faith, arbitrarily and
capriciously.
[33]
The Labour Court held that a decision contemplated in section 14(2)
of the EEA constitutes administrative
action in terms of PAJA, that
the respondent was accordingly not precluded from relying on the
review grounds specified in PAJA,
[5]
and upheld the respondent’s contention that the action was
taken in bad faith, arbitrarily and capriciously. It noted that
there
is an overlap between the grounds in sections 6(2)(e)(v) and (vi) of
PAJA and a legality review under section 1 of the Constitution
of the
Republic of South Africa, 1996 (Constitution) in that it is a
requirement of the rule of law that the exercise of public
power
should not be arbitrary and thus that decisions must be rationally
related to the purpose for which the power was given,
otherwise they
are in effect arbitrary.
[6]
[34]
After considering the appellant’s reasons set out in the letter
of 17 June 2016 and the
fact that the respondent’s absence had
caused disruption and cost to the school, the learned judge correctly
stated the purpose
of section 14(2) of the EEA to be the efficient
removal of employees who have absconded, and is intended to be used
sparingly only
in cases where the employer is unaware of the
whereabouts of an absent employee or if the employee has evinced a
clear intention
not to return to work.
[7]
[35]
In concluding that the impugned decision of 17 June 2016 was
irrational and arbitrary, the Labour
Court reasoned as follows:
‘
[I]t
cannot be said that the applicant had absconded. The respondent was
throughout aware of the applicant’s whereabouts.
The applicant
had communicated with the principal of the school during the course
of February 2013 and it is not in dispute that
he was at home and
contactable after 1 March 2013. Indeed, the internal memorandum
written on 10 April 2013 and in particular the
request that the
attempts made by the principal to contact the applicant be
investigated, acknowledge the respondent’s understanding
of the
importance of the requirement that an employee’s whereabouts be
ascertained, to the extent possible before s14 is
invoked. There is
no evidence that the principal made enquiries as to the applicant’s
whereabouts. Had he made the most rudimentary
enquiry, he would have
ascertained that the applicant was at home. Had he conducted an
investigation and reported this information
to the respondent, it is
unlikely that the respondent would have considered the applicant to
have absconded.’
[36]
The Labour Court held further that the appellant had failed to take
into account all the relevant
facts and circumstances when it refused
to reinstate the respondent. It found that the decision not to
reinstate the respondent
was irrational principally because the
appellant failed to follow less restrictive procedures such as
resorting to its disciplinary
code and procedure, or its incapacity
procedure, to determine whether the respondent committed any act of
misconduct warranting
dismissal, or whether he was incapacitated to
the extent that his continued employment ought to be reviewed.
The
appeal
[37]
The appellant’s first challenge to the Labour Court decision is
that a decision not to
reinstate taken under section 14(2) of the EEA
is not administrative action and that the respondent is precluded
from challenging
the rationality (legality) of the decision under
section 1 of the Constitution guaranteeing the rule of law because he
did not
plead that cause of action.
[38]
Section 1 of PAJA defines administrative action as,
inter
alia
,
a decision of an administrative nature taken by an organ of state
when exercising a public power or performing a public function
in
terms of any legislation, which adversely affects the rights of any
person and which has a direct, external legal effect. In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
,
[8]
the Constitutional Court held that the determination of whether a
decision constitutes administrative action has to be done on
a case
by case basis. What matters is not so much the functionary as the
function. Various considerations may be relevant, such
as: the source
of the power, the nature of the power, its subject-matter, whether it
involves the exercise of a public duty and
how closely it is related
on the one hand to policy matters, which are not administrative, and
on the other to the implementation
of legislation, which is.
[9]
[39]
In
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
,
[10]
the Supreme Court of Appeal held that at the core of the definition
of administrative action is the idea of action (a decision)
of an
administrative nature taken by a public body or functionary. The
qualification that administrative action must, as a fact,
adversely
affect the rights of any person, and must have a direct external
legal effect, was intended to convey that administrative
action is
action that has the capacity to affect legal rights, i.e. it impacts
directly and immediately on individuals.
[11]
[40]
While labour rights and administrative justice rights should be
compartmentalised and are derived
from different constitutional and
legislative sources, rigid categorisation should be avoided.
Decisions and actions taken by the
state
[12]
as an employer may in certain circumstances constitute reviewable
administrative action, especially where no remedy of review or
appeal
against such decision exists under the unfair dismissal or unfair
labour jurisdiction in the LRA. As the Constitutional
Court stated in
Gcaba
v Minister for Safety and Security and Others
,
[13]
human
rights are intrinsically interdependent, indivisible and inseparable
and the constitutional and legal order is one coherent
system for the
protection of rights and the resolution of disputes. Accordingly,
legislation must not be interpreted to exclude
or unduly limit
remedies for the enforcement of constitutional rights, including the
right in section 23(1) of the Constitution
to fair labour
practices.
[14]
[41]
A letter informing an employee of his or her deemed discharge by
operation of law under section
14(1) of the EEA involves no decision
or exercise of a public power, and thus cannot constitute
administrative action;
[15]
but
a decision taken under section 14(2) of the EEA constitutes an
exercise of a statutory power and the performance of a public
function by the Department. It is a decision of an administrative
nature (as opposed to an executive, legislative or judicial nature),
which is informed by policy considerations regarding efficiency, and
may adversely affect the rights of persons outside the Department,
such as the respondent. The decision cannot be challenged under
Chapter VIII of the LRA because it does not constitute a dismissal
as
defined in section 186(1) of the LRA - the dismissal having been
deemed and the decision in terms of section 14(2) of the EEA
being
concerned solely with a request for reinstatement on good cause. The
decision likewise cannot constitute an unfair labour
practice under
section 186(2) of the LRA because it does not relate to the rights
and interests protected by that remedy.
[16]
In the premises, a decision by the Head of Department, charged with
the exercise of a statutory discretion to reinstate on good
cause
shown by an employee deemed to have been discharged, constitutes
administrative action reviewable in terms of PAJA. The Labour
Court
accordingly did not err in its finding in that regard.
[42]
The discretion to grant reinstatement under section 14(2) of the EEA
can be exercised only if
the discharged educator “at any time”
reports for duty and on good cause shown. In the letter of 17 June
2016, the
appellant maintained that the respondent had not reported
for duty. The correspondence shortly after his discharge indicated
clearly
that the respondent wanted to return to duty. The fact that
he did not arrive at the school after his salary was stopped is not
a
basis for refusing to exercise the discretion or to exercise it
adversely. The Head of Department, in any event, was directed
to
exercise the discretion by the order of the Labour Court, which he
duly did.
[43]
The remaining question is whether the appellant’s decision that
there was no good cause
for reinstatement is reviewable. Various
factors are relevant in determining whether good cause exists for
reinstatement under
section 14(2) of the EEA. In the interests of
flexibility, it is inadvisable for courts to define the requirements
of good cause
too categorically. There is no
numerus clausus
of factors. Much will depend on the facts and circumstances of the
case. Relevant considerations include: i) the reasons for the
absence; ii) the duration of the absence; iii) the conduct of the
educator prior and subsequent to his or her deemed discharge;
iv) the
impact of the absence on the employer; v) the whereabouts of the
educator during the period of absence; vi) the practicality
and
tolerability of a continued employment relationship; and vii) the
availability of alternative processes and solutions to the
problem
that led to the educator’s absence.
[44]
In previous decisions concerning deeming provisions this Court has
held that when determining
if there is good cause for reinstatement,
the employer is obliged to assess whether a continued employment
relationship has become
intolerable.
In
MEC
for the Department of Health, Western Cape v Weder,
[17]
the
court held that it did not suffice for the employer to simply say
without more, that the absence of the employee for the requisite
period without a subsequent satisfactory explanation rendered the
employment relationship intolerable.
[18]
Noting that the employees, in that case, had indeed been ill - but
may have been wrong to not have informed the employer of the
reasons
for their absence – the court concluded:
‘
..
..On its own [this] did not appear to constitute wilful, 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 the appellant….. [A]pplying the
test of
legality, insufficient evidence was provided by the appellant as to
why the decision to reject the representations made
was sufficiently
rationally related to the purpose for which that power was given to
the 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.’
[19]
[45]
The appellant submitted that this reasoning does not account for the
fact that the conduct which
triggers the operation of the deeming
provision is by nature intolerable and inimical to a sound employment
relationship between
educators and their employers, which is why
Parliament has passed laws to compel automatic termination. The
reasoning in
Weder
, the appellant submitted, places an
onus
on the employer to prove the misconduct and produce evidence of
intolerable behaviour. That is not entirely correct. The applicable
principle is rather that the employer when exercising the discretion
under section 14(2) of the EEA (in the light of the fact that
the
deemed dismissal often would not have been preceded by any hearing or
inquiry in which the educator participated) must evaluate
all the
circumstances, to determine if the continuation of the employment
relationship has indeed become intolerable as a consequence
of the
educator’s absence. Fairness and proportionality require
deliberation of the appropriateness of permanently severing
the
employment relationship. The discretion must be exercised with the
benefit of informed hindsight. This obliges the employer
to
investigate and reflect fully on the reasons for the absence and the
alternatives to dismissal, which may not have been considered
previously by reason of the operation of the deeming provision.
[46]
The Labour Court found the decision not to reinstate the respondent
was arbitrary for various
related reasons. Most essentially, it held
that the appellant acted disproportionately by not resorting to its
disciplinary code
and procedure, or its incapacity procedure, to
determine whether the respondent had committed any serious act of
misconduct warranting
dismissal, or whether at the time of the deemed
dismissal he was incapacitated by ill health. There is merit in that
finding.
[47]
The probabilities favour the conclusion that at the time of his
discharge, the respondent was
not well and the appellant did not
attempt to reasonably accommodate him temporarily, as it easily could
have done. In so far as
there was medical evidence showing (at least
prima facie
) that the respondent was suffering from stress,
anxiety and depression, it was incumbent on the appellant in terms of
Item 10 of
Schedule 8 of the LRA to reflect on the extent of the
incapacity at the time of the dismissal and to properly investigate
all possible
alternatives short of dismissal to deal with the problem
temporarily. Besides stopping the respondent’s salary, none of
that
was done. Instead, the appellant, despite knowing full well
where the respondent was, expediently relied on section 14(1) of the
EEA and avoided conducting misconduct or incapacity hearings. This
was not an appropriate case for reliance on section 14(1) of
the EEA.
The respondent had not absconded and his whereabouts were known
because he had communicated with the school principal,
was at home,
and contactable. As the Labour Court correctly held, a simple inquiry
by the school principal would have revealed
that he had not
absconded.
[48]
When, in June 2016, the appellant eventually exercised its discretion
on the question of reinstatement,
in terms of section 14(2) of the
EEA, it did not definitively determine the reasons for the
respondent’s absence. Nor did
it appear to review any
mitigating factors and decide whether the problem might have been
better resolved by corrective or progressive
discipline. It again
failed to investigate fully the reason for the respondent’s
incapacity and/or misconduct at the time
of the deemed dismissal or
the possibility for reasonable accommodation of any temporary
incapacity. The appellant focussed rather
on the extent of the
respondent’s absence and his failure to provide medical
evidence of his illness for the period after
1 March 2013 until his
deemed discharge. In the process, mitigating factors were ignored or
not weighed appropriately, including:
the respondent’s lengthy
service, clean disciplinary record and proven ill health before 1
March 2013, as well as the fact
that his salary had been stopped in
January 2013. The failure to assess properly the tolerability or
practicability of a continued
employment relationship caused the
impugned decision to not be rationally connected to the relevant
information and the purpose
of section 14(2) of the EEA.
[49]
This failure to take account of the fact that reasonable
accommodation was possible at the time
of his deemed discharge or
that any misconduct related to his absence was mitigated by various
factors, including his poor mental
health, therefore, renders the
impugned decision arbitrary, capricious and irrational. It was
capricious in the circumstances for
the appellant in effect to invoke
section 14(1) of the EEA and thereby avoid its duty to fairly and
proportionately investigate
the extent of the respondent’s
incapacity, its impact on any misconduct related to his absence, and
alternatives short of
dismissal. The Labour Court accordingly did not
err in setting aside the impugned decision on the grounds
contemplated in sections
6(2)(e)(v) and (vi) of PAJA.
[50]
As the decision was challenged as arbitrary and capricious, the
relief could equally have been
granted in a legality review in terms
of section 1 of the Constitution. Considering that the issue was
canvassed and no additional
evidence is required to determine it, an
amendment of the pleadings on appeal, had an application been made,
would have been competent.
[20]
In any event, the failure to plead a legality review does not
preclude upholding a review on that basis. Where all the relevant
evidence is before the appeal court, as in this case, the court ought
to decide the case on the real issues canvassed during the
course of
the proceedings
a
quo
without placing undue emphasis on the pleadings.
[21]
The decision is arbitrary and thus in contravention of the principle
of legality.
[51]
There is no basis for interfering with the Labour Court’s
decision to reinstate the respondent
with effect from the date of his
deemed discharge.
[52]
In the premises, the appeal is dismissed with costs.
__________________
JR
Murphy
Acting
Judge of Appeal
I
agree
________________
P
Coppin
Judge
of Appeal
I
agree
______________
K
Savage
Acting
Judge of Appeal
APPEARANCES:
FOR
THE APPELLANT:
Adv C Kahanovitz SC and Adv E A De Villiers-Jansen
Instructed
by The state attorney
FOR
THE RESPONDENTS:
Adv R Nyman
Instructed
by Moosa Waglay & Petersen Inc
[1]
Act 76 of 1998.
[2]
Defined
in the Act as the Head of Department.
[3]
Act
66 on 1995.
[4]
Act 3 of 2000.
[5]
See
Hendricks
v Overstrand Municipality and Another
(2015) 36 ILJ 163 (LAC); and
Grootboom
v National Prosecuting Authority and Another
2014
(2) SA 68
CC.
[6]
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC). There is therefore an overlap with the ground in
section 6(2)(f)(ii) of PAJA.
[7]
HOSPERSA
and Another v MEC for Health
[2003] 12 BLLR 1242
(LC) at para 37.
[8]
2000
(1) SA 1 (CC).
[9]
At
paras 141-143
[10]
2005
(6) SA 313 (SCA)
[11]
At
paras 22-2
[12]
The
Department is an organ of state as defined in section 239 of the
Constitution.
[13]
2010
(1) SA 238
CC
[14]
Gcaba v
Minister for Safety and Security and Others
2010
(1) SA 238
CC; and
Hendricks
v Overstrand Municipality and Another
(2015) 36 ILJ 163 (LAC).
[15]
Grootboom
v National Prosecuting Authority and Others
(2014) 35 ILJ 121 (CC) at para 16;
Minister
van Onderwys en Kultuur v Louw
[1994] ZASCA 160
;
1995 (4) SA 383
(A);
Phenithi
v Minister of Education and Others
2008
(1) SA 420
(SCA)
;
and
MEC for
the Department of Health, Western Cape v Weder
(2014) 35 ILJ 2131 (LAC).
[16]
The
unfair labour practice remedy only offers protection against unfair
employer conduct related to promotion, demotion, probation,
training, the provision of benefits, suspension, a failure or
refusal to reinstate in terms of an agreement or an occupational
detriment.
[17]
(2014) 35 ILJ 2131 (LAC) (Weder).
[18]
At
para 40.
[19]
At
paras 41 to 42.
[20]
De
Villiers v De Villiers
1947
(1) SA 264 (C)
[21]
Sentrachem
Bpk v Wenhold
1995
(4) SA 312
(A) at 320A-B