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[2008] ZALCJHB 66
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Spies v National Commissioner of South African Police Service and Others (J173/08) [2008] ZALCJHB 66 (6 February 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NUMBER: J173/08
IN
THE MATTER BETWEEN:
SPIES,
JOHANNES
MARTHINUS APPLICANT
AND
NATIONAL
COMMISSIONER OF
SOUTH
AFRICAN POLICE
SERVICE FIRST
RESPONDENT
THE
MINISTER OF SAFETY
AND
SECURITY SECOND
RESPONDENT
THE
PROVINCIAL COMMISSIONER:
GAUTENG
SOUTH AFRICAN
POLICE
SERVICE
THIRD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
[1]
This is an application in terms of which
the applicant seeks an urgent mandatory order compelling and
directing the respondents
to immediately reinstate his salary and
benefits.
[2]
It is common cause that the applicant has
been absent from work since October 2006. According to the applicant,
he was unable to
tender his services because of ill-health. He states
in his founding affidavit that he has been diagnosed by Dr Verster as
suffering
Post Traumatic Stress Disorder (PTSD) which was caused by a
number of traumatic incidents which occurred during the cause of his
employment by the South African Police Services (SAPS).
[3]
It is also common cause that the SAPS
addressed a letter to the applicant dated 28 August 2008, requiring
him to report for duty
failing which payment of his salary would be
suspended. The applicant was further in the same letter offered an
opportunity to
make representation about why his salary should not be
suspended.
[4]
The applicant responded to the above letter
on the 12
th
September 2007, by stating that he had been booked off due to
ill-health and that he was awaiting the outcome of his application
for ill health retirement.
[5]
He also indicated that his health condition
emanated from conditions and circumstances that existed at the
workplace and was regarded
as injury at the workplace. The same
letter went further to state that:
“
I
hope the above meet your approval and it will be appreciated if you
can inform me as soon as possible of the outcome and before
any
suspension of salary might take place.”
[6]
The SAPS responded to the applicant’s
letter dated 20 September 2007, wherein it is stated:
“
1.
We acknowledge receipt of your representation letter dated 1
September 2007 and have noted the contents thereof.
2.
The decision of this office is that
you must report for duty within [7] working days of receipt of this
letter.
3.
Your failure to comply with this
instruction will result in the immediate termination of your salary
benefits.”
[7]
On 16 October 2007, the applicant was
invited to attend a meeting with the SAPS, the purpose of which was
to discuss alternative
placement for him.
[8]
The meeting to discuss the alternative
position was convened on the 6
th
November 2006. The applicant indicated at this meeting, according to
the SAPS, that he was not prepared to return to work under
any
circumstances.
[9]
Subsequent to the above meeting the SAPS
took a decision to suspend the salary of the applicant. The decision
to suspend the salary
was implemented in November 2007.
[10]
In their answering affidavit, the
respondents raised two
points in limine.
The two points concerned lack of
urgency and jurisdiction of the Court to entertain the application.
[11]
During his argument counsel for the
respondent indicated that respondents did not wish to pursue the
urgency point because even
if they were to be successful, such result
would not dispose off the matter.
[12]
As concerning the issue of jurisdiction,
counsel for the respondent argued that the applicant was not entitled
to sick leave as
he had exhausted his sick leave days in terms of
resolution 7 of 2000 as amended by resolution 5 of 2001 of the Public
Service
Cordinating Bargaining Council (the PSCBC). Thus the
applicant was on unauthorised leave since October 2006.
[13]
Counsel for the applicant based his
argument in support of the case of the applicant on the National
Instruction 2/ 2004 (the National
Instruction) issued by the National
Commissioner of Police in terms of section 25 of the Police Act 86 of
1995. He further argued
that the National Instruction formed part of
the terms and conditions of employment.
[14]
However, when invited by the Court to
indicate whether, the National Instruction overrides resolution 5 of
the PSCBC as amended,
counsel for the applicant indicated that the
resolution provides for a broad framework in as far as sick leave was
concerned.
[15]
Clause 7.5 of resolution 5 of the PSCBC
deals with disability management and incorporates both temporary and
permanent disability.
In terms of temporary disability clause 7.5.1
provides for the extension of sick leave in the situation where the
normal sick leave
credit in a cycle has been exhausted.
[16]
An employee whose disability has been
certified as permanent is entitled to be granted a maximum of 30
working days period leave
while the employer is ascertaining the
feasibility of either alternative employment or adapting the duties
to accommodate the circumstances
of the employee. The employee who is
incapacitated to the extent that he or she will never be able to
perform any type of duties
of his/her level or rank would (if the
employer also is so convinced about this) be entitled to apply for
ill health benefits in
terms of the Government Service Pension Act 57
of 1973.
[17]
Occupational injury and diseases leave may
be granted in terms of clause 7.6 where employees, as a result of
their work, suffer
from occupational injuries or contract
occupational diseases.
[18]
Contrary to the argument presented by
counsel for the applicant the purpose of the National Instruction is
to regulate the management
and administration of sick leave within
the SAPS. Even though, the National Instruction is silent about
resolutions 7 or
5, it would seem its real purpose was that of
providing mechanism for the implementation of the resolution. In all
respects the
wording of the National Instruction, in as far as leave
is concerned is identical to that of resolution 5 of 2001.
[19]
Counsel for the applicant sought to
persuade the Court that the right to full pay of the applicant arises
from the provisions of
clause 6 of the National Instruction. The
relevant provisions of clause 6 reads as follows:
“
(a)
An employee who sustain an occupational injury, or who contracts an
occupational disease, is entitled to occupational injury
and disease
leave with full pay, from the time that he or she becomes unable to
work-
(i) until he or
she can resume his or her work; or
(ii)
until he or she is discharged from Service after an inquiry as
contemplated in section 34 of the Act.”
[20]
The right to full pay envisaged in clause
6(a) above is subject to the conditions set out in clause 6(b) which
reads as follows:
“
(b)
An employee who is absent from work due to an alleged occupational
injury, or an occupational disease, must complete
and submit the
documents required for temporary incapacity leave and documents must
be referred to the health risk manager for
verification and
validation of the period of absence.”
The
applicant in his papers applied for permanent disability and not
temporary incapacity.
[21]
In my view the applicant has failed to make
out a case for urgency in that he became aware on the 12
th
September 2002, that the respondent intended not to pay his salary if
he did not report for duty. This decision was implemented
in November
2007, but the applicant brought this application on the 29
th
January 2008.
[22]
The question of whether the applicant was
entitled to be paid for unauthorised sick leave is an issue that
arises within the interpretation
and application of resolution 7 of
2000 as amended by resolution 5 of 2001. It is therefore an issue
which would appropriately
be dealt with in terms of
section 24
of the
Labour Relations Act 66 of 1995
, and be processed through the
procedures of the Safety and Security Sector Bargaining Council
(SSBC). The applicant has in my view
failed in his founding papers to
show that he has a
prima facie
right to be paid his salary while on an unauthorised leave. I do not
agree with the applicant’s counsel that such right is
found in
the provisions of the National Instruction issued by the National
Commissioner.
[23]
The applicant has also failed to show in
his papers that he had no alternative remedy. The alternative remedy
lies in the referral
of the dispute to the SSSBC for determination of
interpretation and application of resolution 7 as amended.
[24]
As concerning the issue of costs I am of
the view that it would not be fair and proper to make an order as to
costs.
[25]
Therefore the following order is made:
1.
The application is dismissed.
2.
There is no order as to costs.
___________________
MOLAHLEHI
J
DATE
OF HEARING :
29
January 2008
DATE
OF JUDGMENT :
06 February
2008
APPEARANCES
For
the Applicant : Adv. E.
Raubenhelmer
Instructed
by
: Johan Grows Prokureurs
For
the respondent : Adv. T.J. Bruinders SC
Instructed
by
: Bowman Gilfillan Attorneys