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[2009] ZALCCT 15
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Grootboom v National Prosecuting Authority and Another (C696/08) [2009] ZALCCT 15 (18 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN CAPE TOWN
REPORTABLE
CASE
NO: C696/08
In
the matter between:
DERRICK
GROOTBOOM
................................................................................................
APPLICANT
and
THE
NATIONAL PROSECUTING
AUTHORITY
.............................................................................................................
1
ST
RESPONDENT
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
................................................................
2
ND
RESPONDENT
JUDGMENT
Molahlehi
J
Introduction
[1]
The
applicant in this matter seeks to review and set aside the decision
of the first respondent dated 7
th
February 2007, alternatively that of the
second
respondent made on the 25
th
March 2008. The decision which the applicant seeks to review relates
to the respondents evocating the provisions of section 17(5)(a)
and
(b)
[1]
respectively of the
Public Service Act 103 of 1998 (the PSA) in terms of which the
employment of the applicant was terminated.
Backgrounds
facts
[2]
It is common cause that the applicant was
an officer employed as such by the respondents prior to his
dismissal. There are several
incidents that occurred prior to the
respondents’ evoking the provisions of section 17(5)(a)(i) of
the PSA. The applicant
who commenced his employment with the
respondents in April 2001, as a prosecutor was transferred on a
number of occasions to various
other work places of the respondents.
He was initially employed in 2001, in Springbok and was transferred
to Port Elizabeth in
June 2003. After spending some three years in
Port Elizabeth the applicant was transferred to the Upington but
stationed at Springbok
as of February 2006.
[3]
The applicant who commenced his employment
with the respondents in April 2001, as a prosecutor was transferred
on a number of occasions
to various other work places of the
respondents. He was initially employed in 2001, in Springbok was
transferred to Port Elizabeth
in June 2003. After spending some three
years in Port Elizabeth the applicant was transferred to the Upington
but stationed at
Springbok as of February 2006.
[4]
The duty of the applicant whilst based at
Springbok was to travel to various magisterial districts in and
around Upington and because
of this he was entitled to subsistence
and travelling allowances. Because of the dissatisfaction with the
payment of his travelling
allowances the applicant lodged a grievance
with the first respondent.
[5]
According to the applicant, instead of
responding to the grievance the first respondent suspended him on the
22
nd
June 2005, pending a disciplinary hearing which was to take place
then on the 21
st
September 2005. Further to the disciplinary hearing the applicant was
found guilty of misconduct and dismissed on the 28
th
March 2006.
[6]
The applicant being unhappy with the
outcome of the disciplinary hearing referred his alleged unfair
dismissal dispute to the Public
Service Coordinating Bargaining
Council (PSCBC) for conciliation and arbitration. The arbitration
hearing was set down for the
1
st
and 2
nd
June 2006.
[7]
The outcome of the disciplinary hearing was
set aside on the 1
st
June 2006, by the arbitrator of the PSCBC and the parties agreed that
the applicant’s disciplinary hearing would proceed
on the basis
of a pre-dismissal arbitration.
[8]
The pre-dismissal arbitration was set down
by the PSCBC for the 14
th
to the 17
th
August 2006. The matter was then according to the applicant postponed
sine die.
[9]
Subsequent to the postponement the
applicant approached one of the officials of the first respondent to
sign the requisite study
leave forms to go and study in the United
Kingdom. According to him he had already made arrangements for his
further studies in
the UK whilst he was on suspension. The applicant
left the country soon after the postponement of the pre-dismissal
arbitration
proceedings to attend his LLM studies in the UK.
[10]
It is common cause that the salary of the
applicant was frozen at the end of October 2006. Following the
freezing of the salary
there was an exchange of emails between the
applicant and the officials of the first respondent responsible for
the labour relations
between the period November and December 2006
concerning this issue.
[11]
On the 1
st
February 2007, the applicant received a letter informing him that he
had not been granted leave of absence to further his studies
outside
the Republic of South Africa and that no application for leave had
been received or approved by the first respondent. It
was for this
reason that it would appear that the provisions of section 17(5) (a)
(i) of the PSA was evoked by the first respondent.
The employment of
the applicant was accordingly deemed to have been terminated on the
15
th
September 2006.
Grounds
for review
[12]
The applicant brought his application to
review the decision of the first respondent and confirmation thereof
by the second respondent
in terms of the grounds set out in section
6(2) of the Promotion of Administration Act No 3 of 2000 (PAJA). The
grounds for review
are set out in the applicant’s heads of
arguments and the essence thereof is that the first respondent was
biased or took
the decision for ulterior motive and also took into
account irrelevant considerations. In the alternative the applicant
challenged
the decision of the second respondent to uphold the
decision of the first respondent based on the common law grounds as
codified
in section 6(2) of PAJA. The grounds are also based on bias,
ulterior motive, failure to take into account relevant
considerations,
bad faith and arbitrariness or capriciously.
Evaluation
[13]
In my view it is trite that during
suspension an employee still remains under the authority of his or
her employer. Therefore a
suspended employee has a duty to keep his
or her employer posted about his or her whereabouts and about
anything that may prevent
him or her from assuming duties should he
or she be required to do so by the employer. In other words the
applicant in the present
matter was obliged to obtain authorisation
from the first respondent before leaving for his studies overseas.
The applicant was
away from the country for a period of a year
without authorisation from his employer.
[14]
It was suggested in argument that the
applicant had received authorization for his sabbatical leave. In his
contention that he was
granted sabbatical leave the applicant relied
on an email which had been addressed to him by Ms Ngobeni of the
respondent. That
email does not support the applicant’s
contention because all what it says is that the applicant’s
request was receiving
attention. It has also not been disputed that
Mr Engelbrecht refused to sign the applicant’s leave forms
because of the insistence
by the applicant that the one year
sabbatical leave he needed ought to be granted on full pay. The
relevant parts of the email
which the applicant addressed to the
first respondent dated 18
th
January 2006 reads as follows:
“
4.
It is upon me now to ascertain from the employer provisional granting
of study leave for a one year period to me to be able to
make use of
the scholarship-a question I need to able to answer during the finals
in Johannesburg.
5.
My request therefore (to you as corporate manager responsible for the
NC) is to ascertain or obtain such provisional granting
of study
leave and to advise me of the same as soon as possible before the end
of January 2006.
6.
…
7.
This request is been sent to you taking into account my present
suspension and its pending finalisation- I hope that the opportunity
(study leave) could leave to a correction of broken relationship and
a solution to the existing problems with regard to the said
suspension. I still want to serve the People of South Africa through
an important Institution such as the NPA and would settle
any dispute
if this can be maintained. I hope you may be of help to me.”
[15]
In response to the above the respondent
stated in an email as follows:
“
Dear
Mr Grootboom
It
is a pleasure to inform you that after deliberations with management,
it concluded that a study leave for a year be granted to
you upon
official request, however with certain conditions that is a leave be
granted without pay
(my underlining) this to enable the NPA to
find a temporary replacement for you for your post.
Other
than that, normal forms should be processed (sick) following normal
procedures.
Should
you have any queries regarding this, please do not hesitate to
contact me.
Hope
you find this in order.”
[16]
It is clear from reading a short answer
from the applicant to the above email that he understood fully what
was stated in the above
email. There is no suggestion in my view that
the respondent’s email could be read to be purporting to be an
approval for
the sabbatical leave. In his response the applicant
states:
“
Good
day Ms Ngobeni
Thank
you for your consideration, help and reply. I will do so.
Best
Regards.”
[17]
This response indicates that the
understanding by the applicant was that once the scholarship was
approved he would complete the
necessary leave application forms. It
is also clear that the position of the respondent was that if leave
was to be granted it
would be granted on condition that it was
without pay.
[18]
The correspondence between the first
respondent and the applicant’s attorneys also do not support
the contention of the applicant
that he had been granted the
sabbatical leave. In this respect the letter dated 3
rd
July 2006, from the applicant’s attorney requesting
authorization for sabbatical leave states at paragraph 5.2 as
follows:
“
5.2
As you are aware, our client has been granted a scholarship by the
Nelson Mandela Institute to study towards his LLM degree
at the
University of South Hempton, which of cause is due to commence in mid
August 2006. It is our client’s request that
he be granted
sabbatical leave-in accordance with the NPA’s standard policies
in this regard-for the period mid August 2006
until October 2007. We
understand from our client that this leave is fully paid in terms of
the NPA’s current policies.”
[19]
The applicant’s attorneys addressed
another letter dated the 25
th
July 2006 and at paragraph 6 thereof stated the following:
“
6.
Our client’s position is accordingly as follows: in the absence
of the NPA making the necessary arrangements with the GPSSBC
to have
our client’s pre-dismissal arbitration finalised prior to the
18
th
August 2006, our client is left with no alternative
other
than to make application to the NPA that he be placed in sabbatical
for a period of approximately 12 months commencing 18
th
August 2006.
(my underlining) In
this regard, we kindly request that the NPA forward to us its
relevant policies and procedures in this regard
together with
necessary application forms. This would by implication involve our
client’s pre-dismissal arbitration being
postponed sine die
pending our client’s return from his sabbatical leave.”
[20]
It is common cause that on the 26
th
August 2006, the applicant attended at the office of Mr Engelbrecht
and requested for the leave forms. As stated earlier Mr Engelbrecht
refused to sign the leave forms because the applicant insisted that
the sabbatical leave be on full pay. This is confirmed in the
applicant’s heads of argument at paragraph 52 where it is
stated as follows:
“
Engelbrecht
refused to assist (referring to the applicant) with the completion of
the necessary leave forms.”
[21]
The consequences of an employee who absent
himself or herself without proper authorisation is governed by the
provisions of section
17 of the PSA. There are two parts to the
provisions of section 17 governing the consequences of an employee
who absent himself
or herself without authorisation. The first part
deems an employee who is absent from work without authorisation for a
period of
more than one calendar month to be dismissed due to
misconduct. The second part affords an employee an opportunity to
show good
cause for his unauthorised absence.
[22]
The relevant parts of section 17 of the PSA
read:
“
(5)
(a) (i) An officer, other than a member of the services or an
educator or a the Agency or Service who absent 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 dismissed from the public
service on account of misconduct with effect from a date
immediately
succeeding 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 dismissed as aforesaid irrespective of whether
the said
period has expired or not.
(b)
If an officer who is deemed to have been so discharged, reports for
duty at anytime 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 absent on vacation leave without pay
or leave on such
other conditions as the said authority may determine.”
[23]
The
above provisions of section 17(5) of the PSA have received attention
in a number of decisions of the Courts. In
Phethini
v Minister of Education and Others (2006) 27 ILJ 477 (SCA),
the Court in dealing with the provisions of section 14(1) (a) of the
Employment of Educators Act 2 (EEA), which has similar provisions
as
those of section 17(5) of the PSA
[2]
,
held that when an employee is dismissed in terms of the deeming
provision the employer does not commit an act or take a decision
because the discharge is by operation of the law. At paragraph 19 the
Court specifically said:
“
[19]
As to the ground that s 14(1)(a), read with s 14(2), violates the
appellant’s fundamental right to fair labour practices
in terms
of s 23(1) of the Constitution, it is not clear what “act”
of the employer is alleged to be allowed by the
section “without
considering the substantive and procedural aspects of the case.”
It would not be out of place to interpret
the word “act”
to mean “to decide to terminate or discharge”, to which
the answer again is that the employer
takes no decision to terminate
an educator’s services under s 14(1)(a) of the Act. The
discharge is by operation of law.
In my view, the provisions create
an essential and reasonable mechanism for the employer to infer
“desertion” when
the statutory prerequisites are
fulfilled. In such a case there can be unfairness, for the educator’s
absence is taken by
the statute to amount to a “desertion.”
Only the very clearest cases are covered. Where this is in fact not
the case,
the statute provides ample means to rectify or reverse the
outcome.”
[24]
There is generally accepted authority that
the deeming provision as envisaged in terms of section 17(5)(a)(i) of
the PSA do not
constitute a decision by the employer which could be
challenged before any of the dispute resolution bodies including the
Court
of law. Thus in cases involving termination of employment of a
public service officer due to unauthorised absenteeism, the Court
does not have jurisdiction to review a consequent outcome of the
provisions of the section 17(5)(a) of the PSA. In other words
once it
has been shown that the requirements of section 17(5)(a)(i) of the
PSA have been satisfied, an employee cannot challenge
the termination
of his or her employment contract since it would have been terminated
by the operation of the law. However a different
position applies in
as far as the provisions of section 17 (5) (b) of the PSA is
concerned, as will appear in more detail hereunder.
Point
in limine
[25]
The respondents contented that this Court
does not have jurisdiction to consider the applicant’s case
because in his notice
of motion he formulated the relief as follows:
1.
Reviewing and setting aside the decision made by the First Respondent
dated 7
th
February 2007 in terms of section 158(1)(h) of the LRA.
2.
In the alternative to paragraph 1, reviewing and setting aside the
decision made by the Second Respondent on the 25
th
March
2008 in terms of section 158(1)(h) of the LRA and that this
Honourable Court substitute the decision of the Second Respondent
with that of its own, …”
[26]
The applicant further contends at paragraph
8 of his heads of argument that:
“
It
is
the Applicant’
s
contention that the Respondents
decisions constitute an unfair labour practice in terms of LRA rather
than administrative action
in terms of section 6 of Promotion of the
Administration of Justice Act (PAJA). However, the common law grounds
of review as codified
in the PAJA are referred to by the Applicant.
Nevertheless the application itself is brought in terms of section
158(1)(h) read
with section 157(2) of the LRA.”
[27]
The applicant in his heads of argument
acknowledges that the decision in
Chirwa
v Transnet Ltd and others
[2007] ZACC 23
;
2008
(4) SA 367
(CC),
has pronounced that
public servants can no longer invoke administrative reviews to
challenge the validity of their dismissals. He
however in the same
breath argues that the decision in that case does not mean that
parties could not incorporate administrative
law requirements into
their employment agreements. He does not however indicate in what
respect the administrative law requirements
have been incorporated
into the contract of employment between the respondents and himself.
[28]
In
Gcaba v
Minister of Safety and Security
(2009)
ZACC 26
(CC),
the Constitutional Court
after explaining the confusion that seems to have arisen because of
the decisions in
Chirwa
and
Fredericks and others v MEC for
Education & Training Eastern Cape and others
[2001] ZACC 6
;
2002 (2) SA 693
(CC),
observed as follows:
“
[64]
Generally, employment and labour relations 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 the employer and the employee and guarantees
the right to
fair labour practices. The ordinarily thrust section 33 is to deal
with relationship between the state as a bureaucracy
and citizens and
guarantees the right to lawful, reasonable and procedural fair
administrative action. Section 33 does not regulate
the relationship
between the state as an employer and its workers. When a grievance is
raised by an employee relating to the conduct
of the state as an
employer and it has few or no direct implication or consequent for
other citizens, it does not constitute administrative
action.”
[29]
The Court went further to state that:
“
[75]
Jurisdiction is determined on the basis of the pleadings, as Langa CJ
held in Chirwa, and not the substantive merits of the
case.
[30]
In the present instance the employment of
the applicant having automatically been terminated by the operation
of the law, there
is no decision to review. The applicant was absent
from work without authorisation for a period exceeding one calendar
month as
provided for in section 17 (5) (a) (i) of the PSA.
The
provisions of section 17(5) (b) of the PSA
[31]
After being informed that the first
respondent had invoked the provisions of section 17(5) (a) (i) of the
PSA, the applicant addressed
representations to the second respondent
dated the 5
th
September 2007. These representations were opposed by the first
respondent who addressed certain recommendations to the second
respondent in that regard. It is common cause that the second
respondent upheld the recommendations which were made by the first
respondent. Following the decision of the second respondent the
applicant requested reasons thereof. The applicant complained that
the first respondent purported to give reasons on behalf of the
second respondent. The applicant being unhappy with this state
of
affairs then demanded that the second respondent should furnish him
with her reasons for the decision.
[32]
The second respondent never responded to
the request for reasons by the applicant. This being the case the
applicant contended that
the second respondent did not apply her mind
to his representations in terms of section 17(5) (b) of the PSA.
[33]
The issue that has arisen as the result of
the refusal to reinstate the applicant concerns in essence whether or
not there is a
remedy available to the applicant in challenging the
decision of the respondents not to reinstate him. Although there is
consensus
as to what approach to adopt when dealing with the
provision of section 17(5) (a) the same does not apply in as far as
section
17 (5) (b) is concerned. There are two approaches that have
been adopted by the Labour Court in dealing with this issue.
[34]
The one approach is that which was adopted
in the unpublished judgment of
Public
Servants Association of South Africa obo MSL Van der Walt v Minister
of Public Enterprise and another case number JR1453/06,
where in dealing with this issue the Court held that:
“
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.”
[35]
The other approach is that which was
adopted in
Andre Johann de Villiers v
Head of Department: Education Western Cape Province
in
the soon to be reported case number: C934/2008, the Court held that
refusal by the employer to reinstate the
employee in terms of section 14(2) of the EEA constituted an
administrative action,
and therefore
the Court was entitled to exercise its review jurisdiction in this
regard. In arriving at this conclusion the Court
acknowledge what the
Constitutional Court said in both
Chirwa
and
Gcaba
regarding the application of the principles administrative action in
cases involving the State employees. In interpreting what
is said in
the
Gcaba’s
judgment the Court in
de Villiers’
case held that:
[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.”
[36]
It would however seem that the Court in
de
Villiers
regarded the provisions of
section 14 (2) of the EEA as being an exception to the general
approach enunciated in
Chirwa
and
Gcaba.
In
this respect the Court per Van Niekerk J had the following to say:
“
[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. 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.”
[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.”
[37]
The alternative approach which the Court
de
Villiers
considered in the event the
above being incorrect is that the decision of the employer, refusing
to reinstate an employee deemed
to have been dismissed, could be
reviewed under the grounds of legality. The review could be brought
in terms of section 158(1)
(h) of the LRA. In this respect the Court
had the following to say:
“
[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. 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).”
[38]
In the light of the two approaches I am
required to determine which one is correct and should be applied in
dealing with the remedy
available against the decision of the Sate as
an employer when it refuses to reinstate an employee who has been
deemed to have
been dismissed by operation of the law.
[39]
I deal first with the approach which was
applied in
Public Servants Association
of South Africa.
It seem to me that the
ratio of that decision is based on the assumption that the deemed
dismissal in part (a) changes into being
a decision to dismiss when
the employer refuses to reinstate the employee under part (b) of the
subsection. This in my view is
the only basis upon which the
bargaining council or the CCMA could have jurisdiction to entertain
the dispute.
[40]
This interpretation is in my view incorrect
because it is not supported by the reading of the provisions of the
subsection. In my
view had the legislature intended the deeming
provision in part (a) of the subsection to changed under part (b)
into a decision
of the employer to terminate the employment
relationship, which could be challenged in the bargaining council or
the CCMA, it would
have said so or used words to that effect. The
words that would have supported that interpretation would have been
to the effect
that the employer should in terms of part (b) charge
the employee with misconduct related to absenteeism. The other
approach could
have been to nullify the provisions of part (a) once
the employee who had been absent without authorisation presented
himself or
herself or made submission showing good cause for such
period of absenteeism.
[41]
It is clear from the reading of the
subsection that the deemed dismissal for misconduct relating to
absence without authorisation
remains even when the provisions of
part (b) comes into operation and therefore the deeming provision
does not change into the
decision of the employer that can be
subjected to scrutiny by the CCMA or the bargaining council in terms
of section 188 (1) (a)
(i) of the LRA.
[42]
I now turn to deal with approach adopted in
De Villiers.
The
first part of the decision is that the employer in considering the
existence of “
good cause”
in terms of part (b) of the subsection exercises an administrative
function which may be reviewed in terms of the administrative
principles. As indicated earlier the Court arrived at this conclusion
on the basis of it being an exception to the approach which
was
adopted in both C
hirwa
and
Gcaba.
[43]
This approach has support in what was
observed in the minority judgment of
Langa
CJ
(as then was) in
Chirwa.
In that judgment after concluding that the power which was exercised
by the employer did not constitute an administrative action
the
Learned Chief Justice had the following to say:
It
is important to note, however, that my reasoning does not entail that
dismissals of public employees will never constitute 'administrative
action' under PAJA. Where, for example, the person in question is
dismissed in terms of a specific legislative provision, or where
the
dismissal is likely to impact seriously and directly on the public by
virtue of the manner in which it is carried out or by
virtue of the
class of public employee dismissed, the requirements of the
definition of 'administrative action' may be fulfilled.”
[44]
The above approach seems to have support
also in
Chirwa
from what was said by
Ngcobo J
(
as he then was)
at paragraph [142] when he reasoned as to why the exercise of power
to dismiss by Transnet, although a statutory
body, was not
“administrative” in nature. The Laerned Judge had the
following to say:
“
[142]
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 its contractual power.
It
does not involve the implementation of legislation which constitutes
administrative action.
(my
underlining).”
[45]
The essence of the minority decision on the
facts in
Chirwa
is
that the dismissal did not amount to administrative action because it
was not taken in terms of any statutory authority, but
rather in
terms of the contract of employment. The refusal to reinstate an
employee in terms of section 17(5) (b) of the PSA is
in my view an
exercise of power given to the employer by the statute. It is
important to emphasise that in considering whether
or not to
reinstate the employer is not considering termination of the contract
of employment as at that stage it would have already
happened by
virtue of the automatic operation of the law. The only power which
the employer has is to consider whether or not there
are good reasons
for the employee’s absence without authorisation and to
exercise discretion given by the statute.
[46]
Thus the present case is different from
those of
Chirwa and Gcaba
where the Constitutional Court was dealing with the issue of unfair
dismissals of public service employees, such decisions having
been
taken by the employer in terms of the contract of employment. In the
present instance as indicated earlier there is no decision
to
terminate the contract but the termination happens as a result of the
operation of the law and thereafter it is the law that
empowers the
employer to reinstate once the employee has shown good cause for his
or her absence without authorisation. Accordingly,
when Van Niekerk J
in
De Villiers
says that in terms of Gcaba, “
the
door to administrative review”
for
public service employees “
has
finally and irrevocably been closed,
he
is referring to those cases involving termination of the employment
relationship by the State as the employer and not where
termination
is by operation of the law. This is even clearer when one reads the
paragraph [64] of
Gcaba
when
it is indicated that as a general approach the general rule is that
the employment and labour relations issues do not amount
to
administrative action. This, in my view cannot be read to include
instances where the employment and labour relations issues
are
regulated by specific legislation and not contract as is the case in
the present instance.
[47]
I am accordingly in agreement with the
decision in
De Villiers
that
refusal by an employee whose employment has been deemed to have been
terminated by operation of law constitute administrative
action
which can be challenged before the Labour Court in terms of section
158(1) (h) of the LRA. The decision could also be challenged
on the
basis of legality.
Evaluation
of the applicant’s case
[48]
The question that arises in the present
instance is whether the applicant has made out a case that the
decision not to reinstate
him should be reviewed on the basis of the
above principle. In the notice of motion the applicant seeks to have
the decision of
the employer reviewed in terms of section 158(1) (h)
of the LRA. At paragraph 75 of his founding affidavit the applicant
states
that: “
I accordingly submit
that the decision is reviewable in terms of Section 6(2) (f) (ii)
(dd) of PAJA.”
[49]
On the authorities referred to above the
case of the applicant is unsustainable and therefore has failed
to make a case justifying
interference with the decision of the
respondents in refusing to reinstate him into his previous employment
which had been terminated
by the operation of the law.
[50]
Similarly, the applicant has also failed to
substantiate the other grounds for review relating to bias, ulterior
motive and bad
faith. In this respect the applicant contended that
the first respondent was aware that he would be leaving on a
scholarship to
study outside the country. I have earlier in this
judgment indicated that a suspended employee has a duty to inform his
or her
employer about his or her whereabouts during the period of
suspension and may have to seek permission if he or she is to be away
in circumstances that he or she would not be able to resume duty if
he or she was so directed by the employer. The fact that the
employer
had knowledge about his whereabouts is irrelevant as what is key is
whether or not the absence was authorised. The facts
in this case
indicate very clearly that the applicant never received authority to
be away for an excessive period of one year.
The criteria for evoking
the provisions of section 17(5) (a) of the PSA was in my view
satisfied and thus the first respondent
was entitled to evoke the
provisions of that subsection.
[51]
In seeking to show good cause the
applicants through a letter written by his attorneys of record and
dated 5
th
September 2007, proffered two reasons for his absence. The first
relates to the precautionary suspension which he had been placed
on
by the first respondent. He contends that he could not absent himself
from work because he was on suspension and the suspension
was not
uplifted before termination of his employment. He further states that
in terms of the conditions of his suspension he was
not allowed to
enter the premises of the respondents.
[52]
The second explanation is that the
provisions of subsection 17(a) of the PSA could not have come into
operation because he was granted
sabbatical leave. I have already
dealt with the issue of whether the applicant had received authority
to be away and attend his
studies oversees and found that such
authority did not exist.
Was
the decision of the respondent rational or reasonable?
[53]
The question that follows in the light of
the above analysis of the explanation tendered by the applicant
through his attorneys
is whether the decision by the respondents not
to reinstate him is reasonable in the circumstances of this case.
[54]
The legality of the decision of the
employer not to reinstate has to be assessed in the context of
considering whether or not the
employee has shown good cause for his
or her absence without authority and whether the employer in refusing
to reinstate applied
its mind to the submission made by the employee.
[55]
The decision of the respondent in the
present instance is not based on the notion of unfair dismissal but
rather on the refusal
to reinstate subsequent to termination of the
employment relationship by the operation of the law. Thus the
contention of the applicant
that the decision not to reinstate him
constituted an unfair labour practice has no merit. It is trite that
a litigant must make
out his or her case and the relief sought in its
pleading and accordingly the Court must approach the matter as
pleaded. The concept
of unfair labour practice is found in section
186(2) of the LRA. That section has no relevance or bearing on the
discretion exercised
by the employer in terms of section 17(b) of the
PSA. It would seem from the case pleaded by the applicant that
reliance on unfair
labour practice can be located in the provisions
of section 186(2) (c) of the LRA which reads as follows: “
(c)
a failure or refusal by an employer to reinstate or re-employ a
former employee in terms of any agreement.”
This
refers to failure to reinstate in terms of an agreement and not in
terms of the legislation which is what is provided for in
terms of
part (b) of subsection 17(5) of the PSA.
[56]
It is clear in my view that the requirement
of good cause in terms of section 17(5(b) of the PSA entails the
employee having to
provide a reasonable explanation for his or her
absence without authority. The duty is thus on the employee to
provide the employer
with a satisfactory explanation as to what were
the reasons for being absent without authorisation. The employer in
considering
whether or not to reinstate the employee has to exercise
a discretion given by section 17(5) (b) of the PSA. In this respect
the
decision by the employer has to be influenced by fairness and
justice. In other words the employer does not have unfettered
discretion
in determining whether or not to reinstate the employee.
The functionary responsible for considering whether or not to
reinstate
the employee has to apply his or her mind to the submission
made by the employee for the decision to be said to be reasonable and
lawful. The key factor amongst others, which the employer has to take
into account, is whether or not unauthorised absence was
wilful on
the part of the employer.
[57]
In the present instance the decision of the
respondents not to reinstate the applicant cannot be said to be
improper, irregular
or unlawful. The precautionary suspension and the
postponed pre-dismissal hearing did not change the status of the
applicant as
an employee of the respondents. He remained accountable
and was subject to the respondent’s authority in terms of his
movement
and availability during working hours. The issue in
determining whether the applicant was absent without authority
despite his
suspension revolves around his ability to report for work
if was called upon to do so by the respondents. In another sense it
is
apparent that the applicant could not make himself available at
the workplace of the respondents had he been called to do so and
if
his suspension was to be uplifted with immediate effect because of
his studies oversees. An approach similar to this was adopted
in
Masinga v Minister of Justice, Kwa-Zulu
Government (1995) 16 ILJ 823 (A).
In
that case the prosecutor who was suspended pending a disciplinary
inquiry found employment with Natal University. When the university
suspended him, he sought to go back to the department. In dealing
with the issue of the status of a suspended employee (the last
sentence at paragraph B-G page 826) the Court had the following to
say:
“
Here
the only issue is whether his work in the CLP (Community Law Project
of the university) could prevent him from resuming employment
with
the department forthwith if his suspension was lifted.”
[58]
I do not agree with the complaint of
applicant that the manner in which the decisions not reinstate him
was taken and how it was
communicated was irregular or improper. The
first respondent, represented by the officials of the department
including the Director
General made submissions in opposition to the
submissions made by the applicant to the second respondent. The
second respondent,
being the Minister, accepted and agreed with the
submissions made by the officials and on that basis refused to
reinstate the applicant.
The complaint that the decision was
communicated by an official of the department to the applicant has no
merit.
[59]
In the light of the above analysis, I am of
the view that the applicant has failed to make out a case justifying
interference with
the decision of the respondents. Whilst there may
be some reservations about the conduct of the applicant I do not
belief that
it would be fair to allow costs to follow the results.
[60]
In the premises the following order is
made:
1.
The applicant’s application is dismissed
2.
There is no order as to costs.
______________
Molahlehi
J
Date
of Hearing : 30
th
September 2009
Date
of Judgment : 18
th
December 2009
Appearances
For
the Applicant : Adv V Barthus
Instructed
by : Cliffe Dekker Hofmeyr Inc
For
the Respondent: Adv R Nymanaa
Instructed
by : The State Attorney
[1]
Section
17 (5) of the PSA has been substituted by section 25 of Act 30 of
2007 and is now sub-section 17 (3) (a) and (b). There
are no,
material differences between the two sections. The changes brought
in by the subsection relates to the word “officer”
which
has changed to the word “employee.”
[2]
Section
14
(1) (a) of the
Employment of Educators Act 76 of 1998
reads as
follows: an educator appointed in a permanent capacity who (a)
absent from work for a period exceeding 14 consecutive
days without
permission of the employer”, and
section 14
(2) reads as
follows: if an educator who is deemed to have been discharge 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 re-instatement 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 at otherwise as the employer may determine.”