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[2009] ZALCJHB 10
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Public Servants Association of SA obo Van Der Walt v Minister of Public Enterprise and Another (JR1453/06) [2009] ZALCJHB 10 (28 July 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
JOHANNESBURG
CASE
NO: JR1453/06
In
the matter between:
PUBLIC
SERVANTS ASSOCIATION OF SA
obo
MS L VAN DER
WALT Applicant
and
THE
MINISTER OF PUBLIC
ENTERPRISE 1st
Respondent
DEPARTMENT
OF PUBLIC ENTERPRISE
2nd Respondent
JUDGMENT
FRANCIS J
Introduction
1.
The Public Servants Association of SA (PSA) on behalf of the
applicant, brought
an application for the following relief:
“
1.1
The applicant’s termination of service, alternatively discharge
from the Public Service by the
second respondent on or about 17 July
2007 is reviewed and set aside.
1.2
It is declared that the respondents cannot and could not have invoked
section 17(5)(a)(i)
of the Public Service Act 103 of 1994 (PSA) on or
about 17 July 2007 with reference to the applicant, alternatively
that the respondents
cannot and could not have deemed the applicant
to have been discharged from the Public Service on account of
misconduct in terms
of section 17(5)(a)(i) of the PSA.
ALTERNATIVELY
1.3
The decision or action of the respondents to not approved the
reinstatement of the applicant
into the Public Service pursuant to a
deemed discharge, taken at or around 29 October 2007, is reviewed and
set aside.
1.4
The respondents are directed to reinstate the applicant into the
employ of the second respondent
with effect from 17 July 2007 on
terms and conditions no less favourable than those which applied at
the time, with no loss of
remuneration and other benefits.”
2.
The application was opposed by the respondents, i.e. the Minister of
Public Enterprise
(the first respondent and the Department of Public
Enterprise (the second respondent hereafter called the department).
Background facts
3.
The applicant is a former employee of the department. She
commenced employment
with the department on 7 March 2001. On or
about 15 June 2007 she received a letter from the director general of
the department
which indicated that she had committed an offence and
acts of misconduct. Further that it was the department’s
intention
to thoroughly investigate the matter and that it had been
decided to suspend her from duty with full emoluments as a
precautionary
measure with immediate effect until 16 July 2007.
She vacated the office on the same day and went home.
4.
On 16 July 2007, the applicant’s attorney of record received an
undated
letter from the state attorney which indicated that
disciplinary proceedings were to be instituted against her; that she
had been
suspended in contemplation of disciplinary action until 16
July 2007 and that in accordance with the letter of suspension she
had
to resume duties by 17 July 2007; it set out a number of alleged
disciplinary infractions by her; indicated that investigations
were
still being conducted and would be completed within the next 60 days;
indicated that the department intended further suspending
her pending
the finalisation of the investigation and/or disciplinary hearing and
invited her attorney to contact the state attorney
and, should there
be any representations from her side concerning the further
suspension, it should be forwarded to the state attorney.
5.
The applicant did not return to work on 17 July 2007 and contended
that she was
under the impression that her suspension had been
extended in order for further investigations to take place and that
the next
correspondence from the state attorney would be the
notification of a disciplinary hearing date.
6.
The applicant received a letter dated 16 October 2007 from the
department informing
her that her suspension had expired on 16 July
2007 and that she had been expected to resume duties by 17 July 2007
and that her
suspension had not been extended and that because she
did not resume duties on 17 July 2007, she had been on unauthorised
absence
and that she was deemed to have been discharged from the
Public Service on account of misconduct with effect from 17 July
2007,
in terms of section 17(5)(a)(i) of the PSA. She was
directed to comply with the provisions of section 17(5)(b) within 5
days
by,
inter alia
reporting
for duties and making representations regarding her reinstatement.
7.
The applicant failed to report for duty and to show good cause why
she should
be reinstated. In a letter received from her
attorneys dated 19 October 2007 she expressed her shock concerning
the deemed
discharge; that it was a clear indication in the letter
received on 17 July 2007 that there was an intention to further
suspend
her for up to 60 days; the discussion between Ms Hamman and
Mr Chowe, and the last mentioned indicated that the suspension was
being extended; her discussion with Mr Mlatsi; that there had been no
further communication to undo the indication that her suspension
would be extended; that she had been lawfully and reasonably been
under the impression that she was still under suspension and
that she
wished to resume duties.
8.
The state attorney responded in a letter dated 29 October 2007, in
which Chowe
denied stating that her suspension had been extended
beyond 17 July 2007 and indicated that she had neither reported for
duties
nor made any representations concerning possible further
suspension, that the department did not further suspend her, and that
in the circumstances they could not assist her.
9.
Further letters were exchanged between the applicant’s
attorneys and the
state attorney on 29 October 2007, 1 November 2007
and 7 November 2007. On 15 November 2007 the applicant referred
an unfair
dismissal dispute to the relevant bargaining council.
The matter was set down for arbitration. An arbitration award
was received by the applicant on 12 May 2008 wherein the arbitrator
found that the bargaining council did not have jurisdiction
to
arbitrate the matter as she had not been dismissed as contemplated in
section 186 of the Labour Relations Act 66 of 1995 (the
LRA), but
that her services had been terminated rather through operation of law
in terms of section 17 of the PSA.
The review and
declarator application
10.
The applicant brought this application and contended that the
respondents could not have
relied upon or invoked section 17(5)(a)(i)
of the PSA, alternatively that this provision did not apply for the
following reasons:
10.1
She did not intentionally absent herself from her official duties;
10.2
Her absence beyond 16 July 2007 was not without permission,
alternatively she was reasonably under
the impression that the
previous period of suspension had been extended.
11.
In the alternative, it was contended that even if the respondents
could lawfully and reasonably
have relied upon section 17(5)(a)(i) of
the PSA (which was not admitted), the respondents failure to
reinstate her in terms of
or under conditions contemplated in section
17(5)(b) of the PSA was unreasonable because of the following:
11.1
She showed good cause for reinstatement through her attorney’s
letter to the state attorney dated
19 October 2007.
11.2
The good cause lay therein that her attorney and she had gained the
impression from the state attorney’s
undated letter received on
16 July 2007, and from her attorney’s telephonic discussion
with the human resources director
and from her visit to the
department on 20 July 2007, that her suspension was being extended
and that she needed to resume duties
by 17 July 2007.
11.3
She had no reason to think otherwise.
11.4
There was no willfulness or
mala fides
on her side and she was reasonably
under the impression that she was under extended suspension because
of further investigations.
12.
The applicant contended that it was unreasonable in the circumstances
sketched, for the
respondents to have deemed her to be discharged on
account of misconduct, alternatively to not have reinstated her, and
that either
decision was one that a reasonable decision-maker could
not have made in the circumstances. She had been severely
prejudiced
because she was now unemployed simply because of what
appears to have been, at the very least, a misunderstanding or an
unfortunate
sequence of events. She was further prejudiced by
the fact that her attempt to pursue her dismissal through the alleged
unfair
dismissal principles and processes contained in the LRA, have
failed, not on the merits, but because of a legal technicality.
Analysis of the facts
and arguments raised
13. It is common cause
that the applicant was employed by the second respondent. She
was placed on suspension from 15 June
2007 to 16 July 2007. On
16 July 2007 her attorneys received a letter from the state attorney
calling on her to report for
duty on 17 July 2007. She did not
report for duty on 17 July 2007 or thereafter. It is further
common cause that she
was not suspended thereafter and her suspension
was not extended. It is further common cause that she was
advised of her
discharge ninety days after she had been absent from
work in terms of section 17(5)(a)(i) of the PSA. She was
invited to
make representations in terms of section 17(5)(b) of the
PSA which she did not do. The applicant declared a dispute and
referred
it to the relevant bargaining council. The arbitrator
who heard the matter found that the bargaining council lacked
jurisdiction
since the termination of her services was through
operation of section 17 of the PSA.
14.
Section 17 of the PSA before it was amended read as follows:
“
(5)(a)(i)
An officer, other than a member of the services or an educator or a
member
of the Agency or the Service, 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 exceeding 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 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 executing authority may, on good cause
shown and notwithstanding
anything to the contrary contained in any
law, approve the reinstatement of that officer 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.
15.
There are several judgments of this Court dealing with the provisions
of section 17(5) of
the PSA. I have also dealt with the said
provision in
Free State Prov Govt
(Dept of Agriculture) v Maake (in his capacity as commissioner of the
CCMA) and others
[2006] 11 BLLR 1090
(LC). In
Phenithi v Minister of
Education & Others
[2006] 9 BLLR
821
SCA, the Supreme Court of Appeal dealt with the provisions of
section 14(1)(a)
of the
Employment of Educators Act 76 of 1998
which
are similar to
section 17(5)
of the PSA. The court found that
the appellant’s discharge did not constitute administrative
action capable of review
and setting aside. The coming into
operation of the deeming provision requires no decision.
16.
There are certain requirements that must be satisfied before
section
17(5)(a)
of the PSA applies. An employee would be deemed
to be discharged if he or she has absented herself or himself from
his or her official duties without permission from his or her head of
department for a period exceeding one month. Once it
is shown
that she was absent for more than a month without permission, she
will be deemed to be discharged.
17.
It is trite that the deeming provisions as envisaged in terms of
section 17(5)(a)(i)
or corresponding 17(3)(a)(i) of the PSA do not
constitute a decision which is reviewable in a court of law and is
accordingly not
reviewable. The requirements of
section 17(5)(a)(i)
of the PSA have been shown to exist and the applicant cannot
challenge her discharge on review since this is by operation of law.
The applicant has not made out a case for the review of the decision
of 16 October 2007 or for a declarator.
18.
The applicant is not left without a remedy. She must report for
duty and make representations
in terms of
section 17(5)(b)
of the PSA
and show good cause. It is at this stage where she can raise
the issue around why she did not report for work
like she has done in
terms of her letters. Should the department refuse to consider
her representations or find that she
has not shown good cause, she
could than declare a dispute and refer it to the relevant bargaining
council and after that if need
be on review.
19.
The application stands to be dismissed.
20.
I do not believe that this is a matter where costs should follow the
result.
20.
In the circumstances I make the following order:
20.1
The application is dismissed.
20.2
There is no order as to costs.
_____________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT: F J VAN DER MERWE INSTRUCTED BY BOUWERS (ROODEPOORT)
INC
FOR
RESPONDENTS : B R TOKOTA SC WITH D T SKOSANA INSTRUCTED BY STATE
ATTORNEY
DATE
OF HEARING : 19 JUNE 2009
DATE
OF JUDGMENT: 28 JULY 2009