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[2009] ZALCCT 16
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De Villiers v Head of Department: Education Western Cape Province (C 934/2008) [2009] ZALCCT 16 (4 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C934/2008
In
the matter between:
ANDRE
JOHANN DE
VILLIERS
..........................................................................................
Applicant
and
HEAD
OF DEPARTMENT: EDUCATION
WESTERN
CAPE
PROVINCE
...........................................................................................
Respondent
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
[1]
This application has its origins in a decision by the
respondent, made under section 14 (2) of the Employment of Educators
Act (EEA), refusing to reinstate the applicant after his deemed
discharge in terms of s 14 (1) of that Act. The applicant
claims that
the conduct of the respondent constituted administrative action, and
seeks to have the decision reviewed and set aside.
The
facts
[2]
The respondent employed the applicant in 1979. At the time of the
termination of his employment, the applicant was the principal
of Van
Riebeeckstrand Intermediate School, Melkbosstrand, a post that he had
occupied for some 10 years. The applicant was dismissed
in November
2004 on three counts of misconduct. After an unsuccessful appeal to
the Minister of Education, Western Cape in March
2005, the applicant
referred an unfair dismissal dispute to the Education Labour
Relations Council. On 28 February 2008 the arbitrator
ruled that the
applicant’s dismissal was substantively and procedurally
unfair, and reinstated him on the same terms and
conditions on which
he was employed prior to his dismissal. Since another person had in
the interim been appointed principal of
the Van Riebeeckstrand
school, the arbitrator’s award stated
inter
alia
that if the respondent, after
consulting the principal of the school, the applicant and any other
relevant party considered it
“intolerable and inappropriate”
that the applicant should be reinstated into his previous post, the
respondent should
in consultation with the applicant redeploy him to
another suitable school with the same seniority. The arbitrator
ordered that
any consultation process be completed by the end of
March 2006 so that the applicant could resume his employment by no
later than
the start of the second quarter of that year. This did not
happen. Meetings were held in which the applicant and later an
official
of the trade union of which he was a member met with the
respondent to discuss a number of options, including the applicant’s
early retirement and the prospect of his appointment at various other
schools.
[3]
On 1 August 2006, the respondent addressed a letter to the applicant
requiring him to report for duty on 2 August 2006 at the
Elswood
Secondary School. This position had not previously been discussed
with the applicant. The applicant’s trade union
took the view
that he should not report for duty, since the respondent's
instruction failed to comply with the terms of the arbitration
award.
The applicant did not report at the Elswood School. The
respondent regarded the applicant’s failure to report
as
absence from work without permission and on 21 August 2006, the
respondent wrote a letter to the applicant advising him that
in terms
of s 14(1) of the EEA, he was deemed to have been discharged from
service on account of misconduct.
[4]
After further fruitless discussions with the respondent, in November
2006, the applicant’s union referred a dispute to
the
bargaining council in relation to the applicant’s discharge
under s 14 (1). On 18 April 2007, an arbitration award was
issued in
which the arbitrator found that the bargaining council lacked
jurisdiction to arbitrate the dispute since the applicant’s
discharge did not constitute a ‘dismissal’ for the
purposes of the Labour Relations Act (LRA). On 23 April 2007, the
applicant’s union made representations in terms of s 14 (2) of
the EEA, requesting that the applicant be reinstated. On 18
June
2007, the respondent wrote a letter to the applicant advising him
that his application for reinstatement had been refused.
On 21 August
2007 a further application under s 14(2) was made, this time with the
assistance of the applicant’s attorneys
of record. On 25
October 2007, the respondent decided that the applicant should not be
reinstated. This decision, which was communicated
to the applicant in
a letter dated 5 November 2007, is the subject of these proceedings.
[5]
The applicant thereafter instituted proceedings in the High Court,
seeking to review and set aside the respondent’s decision
not
to reinstate him. That application was dismissed, on the basis that
this Court had exclusive jurisdiction to determine the
outcome of the
application. The judgment of the High Court (under case no 18733/07),
was delivered on 28 October 2008, and is referred
to below.
The
issues
[6]
Three main questions are raised in this application. The first is
whether the respondent’s decision to refuse to reinstate
the
applicant constituted a ‘dismissal’ for the purposes of
the LRA. If it did, the applicant had a range of alternative
remedies
available to him, including the referral of an unfair dismissal
dispute to the relevant bargaining council, and a right
ultimately of
review in this Court under s 145 of the LRA. In these circumstances,
it might be argued, as the respondent has sought
to do, that any
application for review is premature, even misguided. The second
question, which may stand independently of the
first, is whether
respondent’s conduct in failing to reinstate the applicant
constituted administrative action, and whether
it stands to be
reviewed on that basis. Finally, assuming the answer to the second
question is answered in the negative, does it
nevertheless remain
open to the Court to review and set aside the respondent’s
decision and if so, on what grounds?
Did
the termination of the applicant’s employment constitute a
‘dismissal’?
[7]
Mr Joseph, who appeared for the respondent, submitted that the
respondent’s decision not to reinstate the applicant amounted
to a ‘dismissal’ as defined by s186 of the LRA, and that
the application for review was thus premature, at least in
the sense
that the applicant had available to him remedies including an
internal appeal, a referral of any dispute to arbitration
and
ultimately a right of recourse to this Court under s 145 of the LRA.
The basis for this submission lies in the wording
of s 14 (2)
of the EEA, which states that if an educator who has been discharged
in terms of s 14(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.”
In
support of his submission that when an employer decides in terms of s
14(2) that any educator deemed to have been discharged
has failed to
show good cause for his or her absence and refuses to reinstate the
educator, that decision amounts to a dismissal
for the purposes of s
186(1)(a) of the LRA, Mr Joseph referred to the judgment by Davis and
Allie JJ in
De Villiers v Minister of
Education Western Cape Province and another
(
supra
).
In paragraph [20] of the judgment, the Court expressed the view that
a deemed discharge in terms of s 14(1), being a deemed dismissal
on
account of misconduct, ought to be treated in the same way as a
dismissal on account of misconduct as in s 18(2). That section
provides that when an educator commits an act of misconduct, the
employer must institute disciplinary proceedings in accordance
with
the disciplinary code and procedures contained in Schedule 2 to the
Act. At paragraph [21], the Court concludes:
‘
In
our view, therefore the employer’s conduct in exercising his or
her discretion in a manner which failed to prevent a sanction
of
dismissal as provided by section 14(1) ought to be subjected to the
same scrutiny as conduct in terms of section 18(3)(i). Such
conduct
is therefore capable of being tested against the Code of Good
Practice contained in section 8 of the LRA.’
That
may be so, but it does not necessarily follow that a decision to
refuse to reinstate an employee whose discharge has been statutorily
deemed to have occurred constitutes a ‘dismissal’ as
defined by s 186(1) of the LRA. On the contrary, the prevailing
authority is that it is not. In
MEC
Public Works, Northern Province v Commission for Conciliation
Mediation and Arbitration & others
(2003) 24
ILJ
2155 (LC), Freund AJ held:
In
my view, a decision not to reinstate an employee whose employment has
been terminated by operation of law is not a ‘dismissal’
for the purposes of s 186 of the LRA. In particular, s186 (a), which
provides that ‘where an employer has terminated a contract
of
employment with or without notice there is a ‘dismissal’,
does not in my view apply. If the employer exercises his
discretion
in terns of s 17 (5) (b) (i) not to reinstate, the contract of
employment remains terminated by law and is not terminated
by the
employer.
[2]
It
does not seem to me that this ruling is either clearly wrong, or that
it is at odds, as Mr Joseph submitted, with the SCA's decision
in
Phentini v Minister of Education &
others
(2006) 27
ILJ
477 (SCA). The ratio of that judgment is that s14 of the EEA is
constitutionally valid and that a discharge effected in terms of
the
section is not the consequence of any discretionary decision rather
than a statutory result; hence it is not a ‘dismissal’
for the purposes of the LRA nor is it susceptible to review. The
Phentini
judgment does not address the nature of a refusal to approve the
reinstatement of an educator, nor whether that refusal constitutes
a
‘dismissal’. Section 186 (1) (a) of the LRA refers to a
“termination of a contract of employment by an employer,
with
or without notice.” An employer who receives an application in
terms of s 14(2) is faced with a contract that has terminated
by
operation of law independently of any act or decision on the part of
the employer. Therefore, the employer does not terminate
the
employment contract when electing not to resuscitate it - at that
point, the contract has ceased to exist. Nor is there,
as Mr
Joseph suggested, any repudiation of the contract by the employee who
fails to report for duty that the employer accepts
when exercising an
election not to reinstate, thereby bringing that election within the
ambit of the statutory definition. This
is not to say that the
obligations imposed on an employer contemplating the dismissal of an
employee in the normal course are entirely
irrelevant to the exercise
of the discretion established by s 14 (2) - I address these below in
the context of a consideration
of whether the respondent’s
decision is reviewable.
[8]
For these reasons, the respondent’s decision not to reinstate
the applicant did not constitute a ‘dismissal’
for the
purposes of the LRA.
Did
the conduct of the respondent in failing to reinstate the applicant
in terms of s 14 (2) of the EEA constitute administrative
action?
[9]
The LRA confers broad review powers on this Court in relation to
conduct by the state as employer. Section 158(1) (h) empowers
this
Court to “
review
any decision taken or any act performed by the State in its capacity
as employer, on such grounds as are permissible in law.
”
Whether employment-related conduct by the state as employer
constitutes administrative action and the intersect, if any,
between
administrative law and labour law is a current and controversial
topic. A good starting point in any consideration
of this
issue is the judgment by Chaskalson CJ in
President
of RSA v SARFU
2000
(1) SA 1 (CC)
[3]
where the Court
formulated the following test to determine whether an action should
be characterised as administrative action:
‘
Determining
whether an action should be characterised as the implementation of
legislation or the formulation of policy may be difficult.
It will,
as we have said, depend primarily on the nature of the power. A
series of considerations may be relevant to deciding on
which side of
the line a particular action falls. The source of the power, though
not necessarily decisive, is a relevant factor.
So, too, is 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. While the
subject-matter of a power is not relevant to determine whether
constitutional review is appropriate, it is
relevant to determine
whether the exercise of the power constitutes administrative action
for the purposes of s 33. Difficult boundaries
may have to be drawn
in deciding what should and what should not be characterised as
administrative action for the purposes of
s 33. These will need to be
drawn carefully in light of the provisions of the Constitution and
the overall constitutional purpose
of an efficient, equitable and
ethical public administration. This can best be done on a case by
case basis.’
[10]
The applicable principles were later summarised as follows in
Transnet
Ltd v Goodman Brothers (Pty) Ltd
2001
(1) SA 853 (SCA):
[4]
‘
(a)
Administrative law is an incident of the separation of powers under
which courts regulate and control the exercise of
public
power by other branches of Government.
(b)
The question relevant to s 33 of the
Constitution is not whether the action is performed by a member of
the executive arm of Government,
but whether the task itself is
administrative or not and the answer to this is to be found by an
analysis of the nature of the
power being exercised.
(c)
What falls to be considered is,
inter
alia
, the source of the power
exercised, the nature of such 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.’
[11]
In the employment context, the question has been complicated by two
factors. The first is the jurisdictional debate generated
by section
157 (2) of the Labour Relations Act and in particular, the extent to
which the jurisdiction of the High Court is limited
by that section;
the second is a related policy-driven debate on the
relationship between sections 23 and 33 of the Constitution
and in
particular, whether administrative law remedies ought to be available
to public sector employees. An analysis of the various
judgments in
Chirwa v Transnet Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(CC) demonstrates just
how difficult these questions are. I do not intend to consider the
judgments in any detail, except to mention
the judgment by Ngcobo J
(as he then was), who delivered the majority judgment on the question
of whether the employer’s
conduct in dismissing Ms Chirwa
amounted to administrative action, and determined that it did not.
Ngcobo J accepted, however,
that Transnet’s conduct amounted to
the exercise of “public power”:
“
In
my view, what makes the power in question a public power is the fact
that it has been vested in a public functionary, who is
required to
exercise the power in the public interest. When a public official
performs a function in relation to his or her duties,
the public
official exercises public power.”
Ngcobo
J concluded, however, that the power was not “administrative”
in nature, for the following reasons:
“
The
subject-matter of the power involved here is the termination of a
contract of employment for poor work performance. The source
of the
power is the employment contract between the applicant and Transnet.
The nature of the power involved here is therefore
contractual. The
fact that Transnet is a creature of statute does not detract from the
fact that in terminating the applicant’s
contract of
employment, it was exercising contractual power. It does not involve
the implementation of legislation which constitutes
administrative
action.”
This
passage is referred to, with apparent approval, in the recent
judgment of
Gcaba v Minister for Safety
and Security
(CCT 64/08
[2009] ZACC 7
October 2009), in which the Constitutional Court had an opportunity
to revisit and clarify
Chirwa.
[12]
In
Gcaba
,
the Court (per Van der Westhuizen J) unanimously stated the
applicable principle in the following terms:
‘
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 section 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 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]
[13]
This approach both formalises the separation of sections 23 and 33 of
the Constitution, and introduces a ‘public impact’
requirement as determinative of administrative action.
[6]
The impact of the
Gcaba
judgment on administrative law claims filed by public sector
employees has been immediately felt by public sector employees
- see
Tshavhunga
v NDPP
(328/09 and 593/08)
[2009] ZASCA 136
(2 November 2009) and
Mkumatela
v The Nelson Mandela Metropolitan Municipality
(454/2008)
[2009] ZASCA 137
(6 November 2009). In the former case,
Nugent JA held that
Gcaba
made it clear that the dismissal of an employee in the public sphere
does not constitute administrative action, and that a claim
by a
public sector employee for a declaration that his dismissal breached
the right to fair administrative action was consequently
bad in law.
Similarly, in
Mkumatela
,
Brand JA held that the finding by the court
a
quo
that
a municipality had performed an administrative act when it made a
decision to appoint one candidate for a vacant post
as opposed to
another could not survive the
Gcaba
judgment - in the absence of any conduct that constituted
administrative action, there was no basis on which to review the
employer’s
conduct.
[7]
[14]
It is tempting to read the
Gcaba
judgment to suggest that public sector
employees may pursue their employment-related grievances only through
the processes established
by the LRA and other labour legislation,
and that in this respect at least, the door to administrative review
has finally and irrevocably
been closed to them. Such a reading would
resonate with the majority judgments in
Chirwa
and their concerns with the
implications of the emergence of a dual system of law, the need to
prevent forum shopping in labour
disputes and the desire to treat
private and public sector workers equally.
[15]
However, I do not understand the judgment in
Gcaba
to suggest that the conduct of a state employer can never be
categorised as administrative action. To read the judgment in this
manner would be to elevate a single factor in the
SARFU
test to a determinative and overriding consideration, something that
the Court in
Gcaba
does not expressly do. The wording of the dictum quoted above
regarding the relationship between sections 23 and 33 of the
Constitution
clearly acknowledges the existence of exceptions to the
general rule, however limited those might be.
[16]
Nor do I think that the fact that the impact of a decision made by a
functionary is felt only by a confined class of employee
(or, for
that matter, as in the present case, by a single employee)
necessarily deprives a public sector employee of a right of
review.
As Prof Hoexter points out, the notion of ‘public impact’
has traditionally been employed for the purpose of
establishing
whether, in relation to an apparently private body or transaction,
the power being exercised is a public power - a
necessary condition
for administrative action. She continues:
“
It
seems strange, then, that the Constitutional Court should apply this
factor of public impact to a decision involving an avowedly
public
power (given the reasoning of Ngcobo J in
Chirwa
),
and conclude from the absence of such impact that the decision is not
administrative action.
[17]
Prof Hoexter refers to
POPCRU
v Minister of Correctional Services (No 1)
2008
(3) SA 91
(ECD) (“
POPCRU”
),
where Plasket J was faced with the question of whether the
decision to dismiss correctional services officers constituted
administrative action, in circumstances where the power to dismiss
was founded in statute.
[8]
It
was argued that this function was not administrative action, since it
did not affect the public as a whole. Plasket J rejected
this
submission in the following terms:
“
In
my view, the elusive concept of public power is not limited to
exercises of power that impact on the public at large. Indeed,
many
administrative acts do not. The exercise of the power to arrest is a
good example of administrative action that would only
have a
significant impact on the arrestee and, perhaps, the complainant.
Another example would be a decision by the erstwhile Amnesty
Committee of the Truth and Reconciliation Commission to grant a
person amnesty from the civil and criminal consequences of his
or her
politically motivated crimes. In these instances what makes the power
involved a public power is the fact that it has been
vested in a
public functionary who is required to exercise it in the public
interest, and not in his or her own private interest
or at his or her
own whim.”
In
other words, many incontrovertibly administrative actions do not have
an impact on the public, and very often it is only an individual
who
is affected by administrative action.
[9]
[18]
Plasket J emphasised
inter
alia
that
the fact that the power had a statutory basis was significant,
because it placed the existence of public power largely, if
not
completely, beyond contention
[10]
.
Ultimately, an important function of the courts was to ensure:
“…
that
when statutory powers (and other public powers sourced in common law
or in customary law) are given in trust to public functionaries
for
the purpose of furthering the public interest, those public
functionaries do not abuse the trust reposed in them, remain within
the bounds of their empowerment and exercise their powers reasonably
and in a procedurally fair manner.”
[11]
As
Prof Hoexter concludes:
“
In
a general sense, however, every act of every public official has
consequences for us all and for the type of society we live
in. That
is why we have administrative law in the first place.”
[12]
[19]
In summary: 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
)
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 (see
Cape
Metropolitan Council v Metro Inspection Services cc
2001
(3) SA 1013
(SCA)), 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.
[20]
Applying these considerations to the facts of the present matter, it
is common cause that the applicant’s contract of
employment was
terminated in terms of section 14(1) of the EEA, i.e. by operation of
law and independently of any action by the
respondent. It is also
common cause that the discretion exercised by respondent in refusing
to reinstate the applicant did not
flow from the applicant’s
contract of employment, but directly from its powers under the EEA.
In short, on the facts of this
case, the Court is faced with a
straight-forward exercise of statutory power vested in the
respondent, at a time when the applicant’s
contract of
employment was already at an end. In so far as the relative positions
of power are concerned, the respondent was clearly
in a position of
power, and the inequality in status of the parties could not have
been more pronounced. By virtue of being an
organ of state, regulated
by the EEA, the respondent was in a special position not accorded to
employer in the private sector.
The employees of no other employer
can be “discharged”
ex
lege
,
without a prior hearing.
[13]
No other employer is legislatively immunised from an unfair dismissal
referral in circumstances where an employee fails to report
for work
for a continuous period of 14 days. No other employer enjoys the
right to consider reinstatement of its employees within
its sole
discretion. What weighs particularly heavily in the applicant’s
favour is that unlike the employee parties in
Chirwa,
Gcaba, Tshavhungwa
and
Mkumatela
,
the applicant has no alternative right of recourse - in the absence
of a dismissal as defined by the LRA, the option of a referral
of an
unfair dismissal dispute to the bargaining council is not open to
him. If this Court were to adopt a ‘hands-off’
approach
to its oversight functions over the exercise of a discretion such as
that established by s 14 of the EEA, the respondent’s
power
would effectively be unchecked, and the applicant would be left
without a remedy.
[14]
[21]
For these reasons, I consider that the respondent’s conduct in
deciding in terms of s 14(2) of the EEA to refuse to reinstate
the
applicant constituted administrative action, and that this Court is
entitled to exercise its review jurisdiction on this basis.
[22]
Even if I am incorrect in coming to this conclusion I have that the
respondent’s conduct amounted to administrative action,
in my
view, the respondent’s action remain open to review under
s 158 (1) (h) of the LRA on the ground of legality.
It will be
recalled that s 158 (1) (h) empowers this Court to review any conduct
by the state in its capacity as employer,
on
any grounds that are permissible in law.
[23]
Section 1(c) of the Constitution stipulates that the Republic is
founded on values which include the supremacy of the Constitution
and
the rule of law. In all of its conduct and at all levels, the state
must observe the rule of law and ensure that its actions
are clothed
with legality.
[15]
In
Pharmaceutical
Manufacturers of SA: In Re Ex Parte President of the RSA
[2000] ZACC 1
;
2000
(2) SA 674
(CC), it was held that the conduct of the President in
deciding to bring a law into operation did not constitute
administrative
action. However, that was not the end of the enquiry.
The conduct of a public official must not be
mala
fide
or exercised from ulterior or improper motives. If the official does
not apply his mind or exercise his discretion at all, or if
he has
disregarded the express provisions of a statute, the Court would
intervene on review (at 707G, citing
Shidiack
v Union Government (Minister of the Interior)
1912
AD 642
at 651).
[24]
In addition, the Constitution places further restraints on the
exercise of power by public officials:
“
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must,
at least
,
comply with this requirement. If it does not, it falls short of the
standards demanded by our Constitution for such action.”
(emphasis added)
[25]
In
Masethla v President of the RSA
[2007] ZACC 20
;
2008
(1) SA 566
(CC), the Court confirmed that the exercise of the power
of the President to dismiss the head of the intelligence service:
“
...
is constrained by the principle of legality, which is implicit in our
Constitutional ordering. Firstly, the President must act
within the
law and in a manner consistent with the Constitution. He or she
therefore must not misconstrue the power conferred.
Secondly, the
decision must be rationally related to the purpose for which the
power was conferred. If not, the exercise of the
power would, in
effect, be arbitrary and at odds with the rule of law.
”
[16]
[26]
In
POPCRU
(
supra)
,
the Court concluded that the conduct of dismissing correctional
service employees in terms of a statutory provision amounted to
administrative action. However, the Court went on to find that, in
any event, conduct of public officials that was excluded from
the
definition of “administrative action” in PAJA was
nevertheless reviewable:
“
That
does not mean that administrative action that is excluded from the
Act’s limited definition of administrative action
is not
reviewable: like all other exercises of power by public officials and
public bodies, such actions are reviewable for compliance
with the
founding value of the rule of law, including the principle of
legality, entrenched in s1(c) of the Constitution, at the
very
least.” (footnotes omitted)
[17]
After
considering the application of PAJA to the decision, Plasket J
continued:
“
If
I am wrong in this respect, and the decisions are not administrative
decisions for purposes of PAJA, they would nonetheless be
exercises
of public power and thus be reviewable for want of compliance with
the founding constitutional value of the rule of law,
entrenched in s
1(c) of the Constitution.”
[27]
In
Rail Commuters Action Group v
Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA
359
(CC) the Constitutional Court established the principle that
entities exercising a public power or performing a public function
ought to be held accountable for the manner in which that power is
exercised or that function is fulfilled. In this regard the
Court
held that :
“
Institutions
which are organs of State, performing public functions and providing
a public service of this kind, should be held
accountable for the
provision of that service. It is for this reason that the
constitution affirms accountability as a value governing
public
administration.”
[18]
More
recently, in
Ntshanagase v MEC: Finance,
Kwa Zulu Natal
[2009] 12 BLLR 1170
(SCA) , a case dealing with a decision taken by a person appointed to
chair a disciplinary enquiry into allegations of misconduct
by a
public sector employee, the SCA held:
“
Undoubtedly
this section [s158 (1) (h)] provides in explicit terms that a
decision taken by Dorkin who acted
qua
his
employer can be reviewed on such grounds as are permissible in law.
The round relied on by the second respondent for the review
of
Dorkin’s decision is rationality, which is one of the
recognised grounds of review. I am therefore of the view that
Dorkin’s
decision can be taken on review under section 158(1)
(h) of the LRA”
[19]
Even
if the decision not to reinstate Applicant did not constitute
administrative action, this Court retains review jurisdiction
on the
ground of legality (at least), which incorporates most, if not all,
of the grounds of review relied upon by applicant in
his founding
affidavit. These would certainly require that functionaries exercise
public power
[20]
in a manner
that is not irrational or arbitrary, and that they be accountable for
the manner in which that power is exercised.
Is
the respondent’s decision not to reinstate the applicant
reviewable?
[28]
Section 14(2) of the Act states that, if an educator who has been
discharged in terms of section 14(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.”
In
MEC for Education and Culture v Mabika &
Others
(2005) 26 ILJ 2368 (LC) 2373C,
it was held that:
“
In
applying its mind to the representations made by the employee in
terms of s 14(2), the employer must naturally act fairly, reasonably
and justifiably.”
[29]
In considering a section 14(2) application, in
De
Villiers v Minister of Education Western Cape Province and another
(
supra
).
Davis and Allie JJ held in the employer should be guided by the
ordinary principles applicable to arriving at a decision
as to
whether an employee should be dismissed for misconduct.
Ultimately,
the employer should be satisfied that, on account of the employee’s
absence from work, the employment relationship
has irretrievably
broken down. As set out in item 3(4) of the Code, it is generally not
appropriate to dismiss an employee, except
if the misconduct is
serious and of such gravity that it makes a continued employment
relationship intolerable.
As
appears from the High Court’s judgment, a deemed discharge in
terms of section 14(2) should be treated in similar fashion
to a
dismissal for misconduct as in section 18(2) of the Act. Schedule 2
of the Act accordingly has application, as does the Code
of Good
Practice contained in Schedule 8 of the LRA, which is incorporated by
reference into Schedule 2 of the Act. It was concluded
that:
“…
the
employer’s conduct in exercising his or her discretion in a
manner which failed to prevent a sanction of dismissal as
provided by
section 14(1) ought to be subjected to the same scrutiny as conduct
in terms of section 18(3)(i). Such conduct is therefore
capable of
being tested against the Code of Good Practice contained in section 8
of the LRA.”
[30]
I do not understand the High Court’s judgment to require that
an employee (who would bear the onus of showing good cause
for the
purposes of s 14(2)) is in effect required to show that a refusal to
reinstate would amount to an unfair dismissal. The
listed purposes of
Schedule 2 include support for constructive labour relations in
education and the prevention of arbitrary
or discriminatory
actions by employers towards educators. The governing principles in
section 2 of the Schedule expressly state
that discipline is a
corrective and not a punitive measure, and that discipline must be
applied in a prompt, fair, consistent and
just manner. It is this
context that the requirement of “good cause” referred to
in section 14(2) must be read. This
would ordinarily mean that unless
the employer, having regard to the full conspectus of relevant facts
and circumstances, is satisfied
that a continued employment
relationship has been rendered intolerable by the employee’s
conduct, the employer should as
a general rule approve the
reinstatement of the employee.
[21]
[31]
The applicant, through his attorneys, submitted a comprehensive
section 14(2) application to the respondent on 20 August 2008.
As
appears from this application, the applicant set out a detailed
summary of the relevant background facts giving rise to his
discharge. He thereafter set out a full explanation as to why he had
not reported to Elswood following the 1 August 2006 instruction.
The
applicant’s personal circumstances and other relevant
considerations were then referred to. The applicant’s
explanation
for not reporting to Elswood was exceptionally good. In
this regard:
the
instruction to report at Elswood fell foul of the arbitration award
in terms of which he was reinstated in a number of respects.
Aside
from the fact that no consultation had taken place regarding this
post as required, the post of educator, reporting to
the head of
department and the principal, amounted to a demotion;
although
the applicant, through his trade union, had objected to the
instruction to report on the same day (1 August 2006), with
reasons,
it is common cause that Respondent had not at any time warned the
applicant that it intended to rely on section 14(1)
of the Act, or
that Applicant could lose his job if he did not report. The
respondent at no stage informed the applicant that
the Elswood
appointment was temporary in nature;
The
applicant, as a lay person with no legal qualifications, knowledge
or experience, relied on the advice of his trade union,
which he
knew to have both an advocate and an attorney on its panel of
advisers. The applicant was also exhausted mentally, emotionally
and
physically as a result of his lengthy dispute with the department.
The
applicant’s trade union advised him that, since the
instruction was unlawful, he need not report at Elswood. The union
did not advise the applicant that he could lose his job if he did
not report for duty. The applicant had no reason to doubt the
correctness of the union’s advice.
[32]
Based on the foregoing, it was apparent that the applicant’s
failure to report at Elswood was not wilful or deliberate.
The
applicant, based on the advice received from his union, was of the
bona fide
belief
that he was acting within his rights. There can be no doubt that the
instruction to report at Elswood fell foul of
the arbitration
award, and accordingly breached the applicant’s right to
reinstatement and/or redeployment. Under these circumstances,
it is
doubtful whether the applicant’s failure to report at Elswood
could be considered misconduct at all, particularly given
the absence
of any fault on his part. If it could be categorised as such, the
gravity of such misconduct was slight, as opposed
to serious.
Certainly, the misconduct was not severe enough, in itself, to render
a continued employment intolerable.
[33]
The applicant furthermore presented a number of personal
circumstances that militated against the termination of his
employment.
The applicant is a well-qualified headmaster and educator
with vast experience.
Inter alia
,
the applicant pointed out that, over his 28 years’ service with
the department, he had an unblemished disciplinary record.
[34]
In dismissing the applicant’s section 14(2) application, it is
apparent from the record that the respondent apparently
relied solely
upon the opinion of a certain Mr. Brandell Turner. In essence, Mr
Turner recommended the dismissal of the application
on the following
grounds:
The
applicant failed to provide evidence that he had relied on the
advice of his trade union, i.e. that he need not comply with
the
instruction to report to Elswood;
The
applicant was familiar with section 14(1) of the Act;
The
applicant had acted in bad faith in his dealings with the
department;
The
section 14(2) application did not place any new evidence before the
employer (as compared with the trade union’s original
purported section 14(2) application).
[35]
With regard to the first point, there was no reason to disbelieve the
applicant’s statement that he had relied on the
advice of his
trade union in not complying with the instruction to report at
Elswood School. Certainly, there was nothing to gainsay
the
applicant’s version to this effect. The union’s position
in this regard, which doubtless would have been conveyed
to the
applicant, appears from its letter dated 1 August 2006. Implicit in
Turner’s opinion is the assumption that the instruction
to
report at Elswood was lawful and in compliance with the arbitration
award. As set out above, and as the department was aware,
this was
not the case. Regarding the second ground relied on by Turner, the
question was not whether Applicant was aware of the
existence of
section 14(2). Applicant had placed a cogent and acceptable
explanation before the department, namely, that he was
not aware that
section 14(2) could apply in circumstances where an instruction to
report was given in breach of a binding arbitration
award. It is
clear that Turner altogether failed to appreciate this fact. With
regard to the fourth ground relied on by Turner,
that the application
contained nothing new that had not been set out in the trade union’s
request, it can only be inferred
that Turner had not actually read
the respective documents. A simple comparative exercise would have
revealed Turner’s error
in this regard. With regard to Turner’s
claim that Applicant acted in bad faith, heavy reliance was placed on
the arbitration
award dismissing the applicant’s claim for
unfair dismissal following his discharge. At the outset, it was
inappropriate
for the respondent to rely on (certain) findings
contained in the arbitration award in the context of a section 14(2)
application,
particularly when the relevant allegations were never
put to Applicant, and he was never afforded an opportunity to respond
thereto.
The arbitration award concerned a single issue, namely,
whether the ELRC could entertain a claim for unfair dismissal
following
a section 14(1) discharge. The arbitrator concluded that
the ELRC had no jurisdiction. The balance of his findings were
strictly
obiter
;
the gratuitous findings in regard to the applicant’s conduct
and the advice proffered by the arbitrator as to the further
conduct
of the case were entirely unnecessary and irrelevant.
[36]
In light of the foregoing, it is evident that the respondent, in
dismissing the s 14(2) application, relied on reasons that
were
fundamentally bad. The respondent’s decision not to reinstate
Applicant was accordingly irrational in relation to the
reasons
given, and was based on irrelevant considerations at the expense of
relevant ones. Having regard to the full conspectus
of relevant facts
and circumstances, the inference of arbitrariness and irrationality
is inescapable. In my view, the respondent’s
decision to refuse
to reinstate the applicant stands to be reviewed and set aside.
[37]
Mr Leslie, who appeared for the applicant, moved that I substitute
the respondent’s decision with a ruling, as reflected
in the
Notice of Motion, to the effect that the application for
reinstatement be upheld. I am mindful of the general rule that
a
court will not substitute its own decision for that of a functionary,
but will refer a matter back for a fresh decision. An exception
to
this rule has been recognised where the end result would, in any
event, be a foregone conclusion, where further delay would
cause
unjustifiable prejudice, or where the Court is in as good a position
to make the decision itself. In my view, the applicant’s
case
falls within the ambit of these exceptions. The applicant was
discharged from service on 2 August 2006, more than three years
ago.
Further delays in this matter are in neither party’s interest.
In addition, the applicant has clearly made out a case
for his
reinstatement on the papers before me. There is no further evidence
or information that could now be placed before the
respondent that
might lead to a different result. No useful purpose would therefore
be served by referring the matter back to the
respondent for a fresh
decision. The applicant also seeks an order directing the respondent
to comply with the provisions of the
arbitration award delivered on
28 February 2006. I do not intend to make any order in this regard.
This application is concerned
only with the respondent’s
decision taken in November 2007. The enforcement mechanisms
established by the LRA are open to
the applicant should it become
necessary for him to enforce the award. Finally, in regard to costs,
there is no reason why costs
should not follow the result.
I
accordingly grant the following order:
1.
The decision by the respondent to dismiss
the applicant’s application made in terms of
section 14(2)
of
the
Employment of Educators Act, 76 of 1998
, is reviewed and set
aside.
2.
The applicant is reinstated in the employ
of the respondent on the same terms and conditions as those which
governed his employment
immediately prior to his deemed discharge in
terms of
section 14(1)(a)
of the Act, save that the applicant shall
not be entitled to receive any salary or emoluments in respect of the
period 2 August
2006 to 7 November 2007, being the date when the
respondent dismissed the applicant’s substantive application
for reinstatement.
3.
The respondent is to pay the costs of these
proceedings, including the costs of 28 October 2009, when the
application was postponed
and the costs reserved.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing 30 November 2009
Date
of judgment 4 December 2009
Appearances:
For
the applicant : Adv G A Leslie
Instructed
by C & A Friedlander
For
the respondent : Adv B Joseph
Instructed
by the State Attorney
[1]
I
am indebted to both counsel for their comprehensive heads of
argument, both in respect of the merits of the application and
in
supplementary heads on the issue of jurisdiction. I have drawn
liberally on these heads in preparing this judgment.
[2]
At
2158 H-J.
[3]
At
paragraph 143, cited with approval by Ngcobo J in
Chirwa
v Transnet Ltd
[2007] ZACC 23
;
2008
(4) SA 367
(CC) 414G-415A. In
Chirwa
,
Ngcobo J held that although the power to dismiss was public power,
it did not amount to administrative action because it did
not
involve the ‘implementation of legislation’ rather than
the terms of the employment contract between the parties.
[4]
At
para 34 (see also
Pennington
v Friedgood
2002
(1) SA 251
(C) 259A-B).
[5]
At paragraph [64]
[6]
See Prof Hoexter’s criticism of the judgment “The
Intersection of Administrative Law and Labour Law from an
Administrative
Lawyer’s Point of View”, a paper
delivered to the annual conference of the South African Society for
Labour
Law, Johannesburg, November 2009.
[7]
At paragraph [15] of the judgment.
[8]
Section
3(5)(g)
of the
Correctional Services Act 111 of 1998
[9]
Hoexter (supra), in
section 2.1
of her paper.
[10]
At
116 footnote 55
[11]
At
115C-F.
[12]
Hoexter, supra.
[13]
I refer here to the state as employer in general terms - there are
other statutes applicable to public sector employees that
contain
provisions similar to those contained in
s 14
(1) of the EEA.
[14]
In
this regard, the applicant has already found himself non-suited in
both the relevant bargaining council and the High Court.
[15]
In
Minister
of Local Government, KZN v Umlambo Trading 29 CC
2008
(1) SA 396
(SCA) para 17, it was confirmed that:
“
It
is a fundamental principle of the rule of law that the exercise of
public power is only legitimate where it is lawful.”
[16]
See
also:
Kruger
v President RSA
[2008] ZACC 17
;
2009 (1) SA 417
(CC) para 98;
Fedsure
Life Assurance v Greater Johannesburg TMC
[1998] ZACC 17
;
1999 (1) SA 374
(CC).
[17]
The
Court referred to the following
dictum
of
the SCA in
Grey’s
Marine
para
20:
“
The
[Constitution] is the repository of all State power. That power is
distributed by the Constitution – directly and indirectly
–
amongst the various institutions of the State and other public
bodies and functionaries and its exercise is subject to
inherent
constitutional restraint – if only for legality – the
extent of which varies according to the nature of
the power being
exercised.”
[18]
At para [83].
[19]
At 1176H-I.
[20]
Recall the dictum by Ngcobo J in
Chirwa
quoted in paragraph [12] above.
[21]
To
hold otherwise would amount to a clear breach of an employee’s
right to fair labour practices and right to equality (since
educators who are discharged in terms of section 14(1) would be
treated in a manner which grossly departs from the manner in
which
all other educators charged with misconduct are treated).