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[2008] ZALCJHB 51
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Public Servants Association of SA De Bruyn v Minister of Safety And Security and Another (JR388/07) [2008] ZALCJHB 51 (10 December 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: JR 388/07
In
the matter between:
PUBLIC
SERVANTS ASSOCIATION
OF
SA OBO P W J DE BRUYN
APPLICANT
and
MINISTER
OF SAFETY AND SECURITY
1
ST
RESPONDENT
NATIONAL
COMMISSIONER,
SOUTH
AFRICAN POLICE SERVICE
2
ND
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
The applicant, the Public Servants
Association (PSA) on behalf of its member, Mr De Bruyn (the employee)
seeks an order reviewing
and setting aside the decision of the second
respondent in terms of which the application for paid special
incapacity leave for
the period 25 February 2005 to 19 March 2006 was
disapproved. The applicant also challenged the decision refusing to
treat the
180 days absence from the workplace as paid leave.
[2]
The applicant further seeks an order
declaring that:
(a)
the employee was entitled to special
incapacity leave for the period 25
February 2005 to 19 March 2006; and
(b)
the unpaid leave of 180 days be converted
to paid leave.
Background facts
[3]
The employee, who had been in the employ of
the respondents since 1980, was booked off sick due to depression
from 19 July 2004.
At that stage the employee was working as a
section head in the personnel services at the provincial office in
Polokwane.
[4]
Following the instruction by the third
respondent, the employee resumed his duties during March 2006 and was
then assigned, section
head: skills development facilitator and
administration.
[5]
The applicant booked sick leave on the
ground that he was undergoing medical treatment. He asserted that he
had been diagnosed with
“
Post
Traumatic Stress Disorder”
(PTSD).
[6]
The employee submitted an application for
ill-health retirement during February 2005, and attached thereto his
doctor’s medical
report which set out his health condition. In
the application form the employee described the demands of his job as
follows:
“
To
ensure that I am aware of all daily and future activities on
provincial area offices and station level pertaining to personnel
services which includes transfers, promotions, terminations, medical
aids, leave section, disciplinary, records, budget, recruitment,
grievances, labour management, etc. Daily management of stats and
projects and submitting of reports. Managing of job description,
evaluations, preparing for meetings.”
[7]
The details of disablement arising from the
ill-health is described as follows:
“
My
illness is a direct result of matters and situations that occurred at
my place of work during June / July 2004 as well as months
and times
prior to this date. Unfair Labour Practice, Victimisation, Defamation
and Bullying. As well as scenes of accidents and
gruesome crime
scenes attended.”
[8]
In determining the impact of work
performance on him the employee stated that:
“
Can
not function under unfair labour practices as currently been
practised in the South African Police Service.”
[9]
In detailing the specific difficulties in
performing his duties the employee indicated in the application form
that:
“
I
do not have any trust anymore in the management of the SAPS.”
[10]
In the statement attached to his
application the employee complained about how some of his superiors
spoke to him during the morning
of 13
th
July 2004. One of the issues that arose during the morning of that
day concerned a letter of a certain Maimela who apparently complained
about services rendered to him by the employee. The employee was
offended by the response from Commissioner Binta when he told
him
that he had just received the letter of Maimela and certain
Pretorious was phoning to discuss its contents thereof. The employee
quotes Commissioner Binta who seem to have enquired about this matter
as having said:
“
Why
don’t you want to help this man (referring to Maimela), is this
because he is a black man.”
The employee further
relates other unhappy encounters with Commissioner Binta.
[11]
The South African Police Services (SAPS)
responded to the above application in a letter dated 3
rd
March 2006, wherein the Divisional Commissioner indicated that the
application for ill-health retirement had been considered and
the
decision taken was that the employee should resume duties. The
employee was required to report for duty on 13
th
March 2006.
[12]
The employee indicates in his founding
affidavit that he could not attend work on 13
th
March 2006, as he was in hospital receiving psychiatric treatment.
[13]
The Divisional Commissioner addressed
another letter dated 24
th
March 2006, to the employee and indicated that the medical board of
the third respondent took a decision on 31
st
March 2005, in terms of which it was resolved that the employee’s
illness could not be regarded as an illness arising in
the
performance of his official duties. The letter further indicated that
absence for a period exceeding 36 working days required
the
submission of a request for a special leave to be made.
[14]
The employee submitted special leave forms
together with medical certificates indicating that his absence was
due to major depression
and PTSD.
[15]
The second respondent responded to the
special leave application in a letter dated 5
th
June 2006, wherein it is indicated that leave was approved for the
period 6
th
September 2004 to 24
th
February 2005. Leave for the period 25
th
February 2005 to 19
th
March 2006, was disapproved and the period beyond 25
th
February 2005 was to be regarded as annual leave. The employee then
lodged a grievance which remained unresolved.
[16]
The employee contended that he was
prejudiced by the decision of the respondent in that:
“
30.1
because of the period of approximately 1 year between the ill health
retirement application and disapproval thereof, which
is submitted
constituted an unreasonable delay;
30.2
by the decision that temporary leave
had been granted for the period 6 September 2004 to 24 February 2005
but not for the period
25 February 2005 to 19 March 2006; and
30.3
by the period of approximately 1
year between the medical board decision that illness was not work
related and the communication
of that decision to De Bruyn, which is
submitted constituted an unreasonable delay.”
[17]
The employee further contended that there
was no fair and valid reason for disapproving a portion of the
temporary incapacity leave
but approving another portion thereof. The
decision of the respondent was challenged for being procedurally
unfair, having been
taken without taking into account relevant
considerations, being taken arbitrarily or capriciously and grossly
unreasonable. It
was also contended that the decision was
unconstitutional in that it constituted unfair labour practice.
Analyses
[18]
In essence, the case of the employee is
that despite the medical board taking the decision on 31
st
March 2005, he was advised of such a decision only on the 20
th
March 2006. This decision was according to the employee contrary to
the recommendation of the consultant who had recommended temporary
incapacity leave. It is the case of the employee as indicated above
that the decision of the respondents was arbitrary and/or
unreasonable.
[19]
The applicant argued that this Court has in
terms section 158 (1) (g) of the LRA power to review any decision
taken or any act performed
by the state in its capacity as employer.
[20]
In their answering affidavit the
respondents raised two points in
limine
.
The first point in
limine
relates to jurisdiction. In this regard the respondent argued that
the entitlement or otherwise of the disability leave is governed
by
clause 7.5.1 of the Resolution 5 of 2001 of the Public Service
Coordinating Bargaining Council (the PSCBC) as amended by Resolution
5 of 2001. This Resolution regulates the process of applying for and
granting incapacity and permanent disability leave. The resolution
regulates the process whereby employees who have permanent
disabilities are accommodated in the workplace and receive ill-health
benefits.
[21]
The issue that has arisen as a result of
the employee’s claim is whether or not the refusal by the
respondents to grant special
incapacity leave and refusal to grant
paid leave of 180 days constitutes an administrative action in terms
of section 1 of the
Promotion of Administrative Justice Act (the
PAJA) or is a decision that arises from the employment relationship
which should be
governed by the provisions of the LRA.
[22]
The authorities are in agreement that a
distinction should be drawn between actions or decisions of the state
that are administrative
in nature and those that arise from the
employment relationship. Those decisions that are administrative in
nature are governed
by section 1 of PAJA read with section 33 of the
Constitution. And those that arise from the employment relationship
are governed
by the provisions of the LRA read with section 23 of the
Constitution. In this regard see the unpublished decision of this
Court
in
NUTESA v Central University of
Technology Free State case number J2043/08
,
including the authorities cited therein.
[23]
In
Chirwa v
Transnet Limited
2008 (3) BLLR 251
(CC),
the Constitutional Court, held that the decisions or actions arising
from employment relationship are to be governed by the provisions
of
the LRA and disputes arising therefrom should be dealt with through
the various processes provided under the provisions of that
Act. In
this respect the essence of Chirwa judgment is that the provisions of
PAJA should not detract from the dispute mechanisms
provided for
under the LRA. See
NJ Kotze v The
National Commissioner, South African Police Service & Another,
unreported case number JR16736/2006.
[24]
In the
Kotze’s
case the Court was faced with facts which are very much similar to
those in the present case. The applicant in that case sought
to
review and set aside the ruling of the director of Medical
Administration of the SAPS that he should resume work following the
decision declining his application for ill-health retirement. The
Court in finding that the relief sought by the applicant fell
within
the provisions of resolution 5 read with the provisions of section 24
of the LRA, held that the applicant would, had he
used the provisions
of section 24 of the LRA, have had a full and complete remedy to meet
any complaints that he might have had.
In this respect the Court
further held that:
“
As
a result of all the above I am of the view that applicant’s
remedies lie within the provisions of the collective agreements
applicable to the relationship between the parties and the provisions
of the LRA.”
[25]
In the light of the above discussion, in my
view, leave, including incapacity and temporary incapacity leave at
the respondents’
workplace is governed by the provisions of
resolution 5 of 2001 of the PSCBC, which is a binding collective
bargaining agreement.
[26]
The appropriate forum to challenge the
decision of the second respondent refusing the employee special paid
leave or temporary incapacity
leave is not an administrative action
or the exercise of a public power as contemplated in PAJA. In
refusing to grant the employee
special leave or temporary incapacity
leave the third respondent was exercising a discretion provided for
and governed by the resolution
5 of 2001 of the PSCBC. It is
therefore my view that the cause of action for the applicant rests in
the application and/or interpretation
of the provisions of the PSCBC
resolution. The appropriate forum for that is the PSCBC, through its
dispute resolution mechanism.
Thus the employee’s application
stands to be dismissed for this reason.
[27]
In the circumstances of this case I do not
believe that it would be fair to grant costs.
[28]
In the premises I make the following order:
(i)
The application is dismissed.
(ii)
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
25
th
June 2008
Date
of Judgment :
10
th
December 2008
Appearances
For
the Applicant :
Adv F J Van der Merwe
Instructed
by :
Bouwers (Roodepoort)
Incorporated
For
the Respondent: Adv T J
Bruinders SC
Instructed
by :
The State Attorney