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[2010] ZALCJHB 75
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Member of the Executive Council for Health v Khoetha and Others (JR60/2008) [2010] ZALCJHB 75 (7 September 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
JOHANNESBURG
CASE
NO: JR60/2008
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR
HEALTH Applicant
and
M
D
KHOETHA 1st
Respondent
M
V PHATSHOANE
N.O. 2nd
Respondent
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
SECTORAL BARGAINING
COUNCIL
3rd
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an application to review and set aside an arbitration award
dated 18 December 2007 under case number PSHS256-07/08 issued
by the
second respondent (the commissioner), after she had found that the
requirements of section 17(5)(a)(i) of the Public Service
Act 103 of
1994 (the PSA) were not met and that the first respondent’s
dismissal was both procedurally and substantively
unfair. She
ordered the applicant to reinstate the first respondent to his
position as senior security officer at Elizabeth
Ross hospital from
date of the award being 18 December 2007 without any retrospective
remuneration.
2. The
applicant applied for condonation for the late filing of the review
application. The first respondent did not oppose
the
condonation application. A proper case has been made out for
condonation and condonation is granted.
Background facts
3. The
first respondent was discharged by the applicant in terms of section
17(5)(a)(i) of the PSA after he had refused to work
at the Elizabeth
Ross hospital but instead reported for duty at the Thabo Mofutsanyana
district office. He was informed in
writing that his services
were deemed to be discharged in terms of section 17(5)(a)(i) of the
PSA but that he could make representations
in terms of section
17(5)(b) of the PSA. He duly made those representations.
He was unsuccessful and thereafter referred
an unfair dismissal
dispute to the third respondent, the Public Health and Social
Development Sectoral Bargaining Council (the
bargaining council).
The arbitration
proceedings
4. The
unfair dismissal dispute was set down for arbitration. At the
commencement of the arbitration, the applicant raised
a point
in
limine
that the first respondent was
dismissed in terms of section 17(5)(a)(i) of the PSA by operation of
law and that the bargaining
council did not have jurisdiction to
arbitrate the dispute. The commissioner directed the parties to
lead evidence on the
discharge as effected in terms of section
17(5)(a) of the PSA and said that she would deal with the point
in
limine
in her award. She informed
the parties that the award would be final in that if she found that
the dismissal was correctly
effected by operation of law, the request
for arbitration would be dismissed but if she found that section
17(5)(a)(i) of the PSA
was not applicable, then the fairness of the
dismissal would be determined.
5. The
applicant called Itumeleng Walter Patlane as its sole witness.
He testified that he is a senior employment relations
officer.
He was appointed as an investigation officer, to investigate certain
alleged acts of threats directed by the first
respondent to a certain
Motsitsi, a labour relations officer at Thabo Mofutsanyana district
of the applicant. The first respondent
was furnished with a
letter dated 15 February 2005 about his placement at Elizabeth Ross
hospital. The letter erroneously
stated that he was placed at
Thabo Mofutsanyana district. This placement error was
subsequently corrected around 3 August
2005 after the first
respondent received a letter stating that he was placed at Elizabeth
Ross hospital with retention of his current
rank and salary. He
refused to report at the Elizabeth Ross hospital as directed.
On 23 June 2006 the acting chief
executive officer directed a further
request that he report for work at Elizabeth Ross hospital. The
first respondent wrote
a letter to the acting CEO saying that he
could not report at Elizabeth Ross hospital and that he did not want
to report there
and that he should be removed from the records of the
Elizabeth Ross hospital and be put on the records of Maluti a
Phofung.
He continued reporting for work at Thabo Mofutsanyana
district office where he was not assigned any duties. He was
suspended
due to the complaints received from Motsitsi about the
threats but his suspension was uplifted in a letter dated 22 March
2007
and was requested to report at Elizabeth Ross hospital.
He refused to do so. He lodged an appeal against a final
written warning and made reference to being placed at the Elizabeth
Ross hospital. He was informed that his placement was
purely
administrative and had nothing to do with the final written warning
that he had appealed against but he still refused to
report at the
Elizabeth Ross hospital and continued reporting at Thabo Mofutsanyana
district office. He stayed mostly at
a certain lady’s
office. The applicant was aware that he was reporting there.
He was asked to report at
Elizabeth Ross hospital with effect from 26
March 2007. He did not report for the period of 22 March to 30
April 2007.
He was then discharged from service in terms of a
letter dated 30 April 2007 in terms of section 17(5)(a)(i) of the PSA
with immediate
effect. He was advised that he could make
representations to the applicant about why he could not be discharged
from service.
He made those representations for reinstatement
but was advised in a letter dated 15 June 2007 that they were not
upheld.
6. The
first respondent testified that before he was employed by the
department of health (the department), he previously worked
for the
department of public works for the period 1990 to 1997 as a senior
security officer. Around 1 November 1997 the department
wanted
his lateral transfer from public works. He was then released to
support management in caring for state property.
He was at the
time of his dismissal earning R4 103.75 per month. He was
dismissed on 30 April 2007 by the applicant.
He said that at
all relevant times during the alleged period of absence from official
duties, he was rendering his services at
Thabo Mofutsanyana district
office where he had been placed since 1999. He confirmed that
he did not report for work at the
Elizabeth Ross hospital. He
said that there was a procedure within the applicant to determine his
whereabouts and the department
should have called him to an enquiry
so that he could defend himself. On 4 January 2005
he received a letter
from his manager stating that he had to report
for work at the department of public safety. Around 15 February
2005 he received
a letter from the head of the department approving
his placement at Thabo Mofutsanyana district with effect from 1
November 2004.
He again received the same letter on 22 June
2005 stating that his placement at Thabo Mofutsanyana had been
cancelled by one Henrietta
van Zyl - a senior admin officer and was
replaced by hand with Elizabeth Ross hospital. He then took the
cancelled letter
to Motsitsi and Maruane and enquired from them about
the legality of the hand written cancellation on the letter from the
head
of department by an official, and they did not agree that such
type of cancellation was possible. Motsitsi was of the view
that the letter was forged. They then requested him to write a
letter about the incident which he did. On 3 May 2005
he sent a
letter to Dries Fourie but did not receive a response from
him. In February 2006 he sent an email to the
MEC and received
a response that his complaint had been forwarded to Mr Kgasu, the
security manager to investigate and to advise
the head of department
on his findings. A meeting was convened on 20 December 2006 to
discuss the problems around security.
On 4 January 2007 the
general manager of Thabo Mofutsanyana wrote a letter stating that he
was to be allocated as shift supervisor
until further notice at Qwa
Qwa clinics. Around 17 January 2007 he received a suspension
letter which suspension endured
until 23 March 2007. Following
the upliftment of the suspension, he still reported at Thabo
Mofutsanyana district.
Because he had received another letter
saying that he had to report for work at Elizabeth Ross hospital he
appealed through his
attorney against this decision. The latest
placement letter did not inform him to go to Elizabeth Ross hospital
but merely
advised him to report for work at the hospital. He
felt that he ought to have been consulted before his placement at
Elizabeth
Ross hospital. He went to the office of the CEO at
Elizabeth Ross hospital where a certain Radebe told him that he had
to
wait until the appeal authorities had finalised his appeal.
He was eventually discharged from the public service after he
received a letter of discharge. The discharge letter stated
that he had received a letter from the district informing him
that he
had to resume duties at Elizabeth Ross hospital. He denied that
he had received such a letter. He had appealed
and whilst he
was waiting for the outcome of his appeal, he received the discharge
letter. He stated that before the suspension,
he was reporting
at the district office and resumed duties and reported at the same
office after the upliftment of the suspension.
He had been
reporting there without fail. He denied that he had absented
himself from his duty as alleged and appealed to the applicant to
intervene
and set aside the alleged dismissal. His appeal was
dismissed in a letter dated 15 June 2007 and his salary was stopped
in
August 2007.
7. The
first respondent called Aletta Mabuya as his witness. She
testified that she is a senior admin officer human resources
at Thabo
Mofutsanyana district for the past 25 years. The applicant was
transferred from public works to the department around
October 2004
and she and other human resources officials of the department
processed his transfer. One Nongwanya, a chief security
officer
confirmed that all security officers were on the staff establishment
of Elizabeth Ross hospital, but physically working
at
Maluti-a-Phofung. At some point a certain Ms Tsibuli chased him
out of the district saying that they did not have security
officers’
posts and that he had to report for work at the department of public
works. She had tried to explain to Tsibuli
that they had
security officers physically at Thabo Mofutsanyana though they were
on the staff establishment of the Elizabeth Ross
hospital. At
that stage the then CEO of Elizabeth Ross hospital, Mr Mosemege and
Nkabinde - the assistant manager at Elizabeth
Ross hospital indicated
that they needed security officers back at Elizabeth Ross hospital.
The first respondent however
was not part of the security guards
according to her records. Around January 2007 the first
respondent was allocated work
at the district office of Thabo
Mofutsanyana to head the security shift and to be responsible for all
the Qwa Qwa clinics.
Patlane, the applicant’s witness,
came to her office and told her that he was investigating a matter
between her and the
first respondent. He did not have any
appointment letter to conduct the investigation. She and the
first respondent
were both suspended on 17 January 2007 and on 23
March 2007 their suspensions were uplifted. They were informed
that they
had to report at the district office and they also received
warnings. On reporting for work subsequent to the suspension,
no one allocated work to the first respondent however but he did
shift supervision. She denied that he sat in her office
the
whole day and not performing tasks. As a human resources
officer, employees in the same way as the first respondent,
quite
often came to her office with queries. He had at all times been
reporting at the district office and attended to some
security
officer problems at the workplace. It was unofficial of the
department to effect hand written cancellation on a
letter coming
from the office of the head of department in a manner that van Zyl
had done to the head of department’s letter
confirming the
appointment of the first respondent at Elizabeth Ross hospital.
8. The commissioner
issued her award. She recorded in her award that the first
respondent was dismissed by operation of law
in terms of section
17(5)(a)(i) of the PSA around 30 April 2007, for reasons that he had
failed to report for work at Elizabeth
Ross hospital with effect from
26 March 2007. Subsequent to his discharge he made
representations to the applicant for his
reinstatement in terms of
section 17(5)(b) of the PSA. His dismissal was confirmed by the
executing authority and he was
discharged from the public service on
6 July 2007. The first respondent contended that his dismissal
was both procedurally
and substantively unfair in that he reported
for work at Thabo Mofutsanyana district office of the applicant at
all relevant and
material times during the period of the alleged
absence from work. She recorded the issue that she was required
to decide
and the evidence led. It is not necessary to repeat
it. She said that the applicant had argued that the bargaining
council did not have jurisdiction to arbitrate the dismissal dispute
as the dismissal came into effect by operation of law.
She
pointed out that the Labour Court had expressed very different views
on the jurisdiction of the bargaining council to determine
the
fairness of dismissals, where it was affected by operation of law.
She found that four requirements needed to be satisfied
before the
provisions of section 17(5)(a)(i) of the PSA would apply. These
are, (i) the person must be an officer or an employee;
(ii) the
employee must absent himself from official duties; (iii) his absence
was without permission from his head of department
and the (iv) was
that it exceeded a calendar month. The commissioner said that
once all four requirements have been met,
it would then be deemed
that the first respondent was discharged from the public service
because of misconduct. Should any
of the requirements not be
met, the deeming provisions of the section would not come into
operation and the dismissal would not
be
ex lege.
9. The commissioner said
that it was common cause that the first respondent was an employee of
the applicant. She said that
she would address the rest of the
remainder of the requirements of section 17(5)(a)(i) of the PSA
collectively since all of them
relate to absence from official
duties. According to the first respondent, he was not absent
from work. His testimony
on this score was confirmed by the
applicant who however indicated that he was not at his assigned
workstation. The commissioner
said that it was common cause
that the first respondent was informed in writing on numerous
occasions since mid 2005 to March 2007
to report for work at
Elizabeth Ross hospital. He did not report for work as directed
and at all relevant time was reporting
for work at Thabo Mofutsanyana
district office of the applicant and in the applicant’s
ipse
dixit
they were aware that he was reporting at the Thabo
Mofutsanyana district. The commissioner said that it followed
from the
common cause facts that she had to determine whether
reporting at Thabo Mofutsanyana district office as opposed to
reporting at
Elizabeth Ross hospital constituted absence from
official duties as intended in terms of section 17(5)(a)(i) of the
PSA entitling
the applicant to invoke the applicability of this
section to effect the first respondent’s discharge. The
applicant’s
witness testified that the first respondent was
seen on countless occasions at one lady’s office at Thabo
Mofutsanyana district
office allegedly his girlfriend. He
testified that he was engaged to conduct an investigation of
misconduct on the first
respondent on an unrelated incident, and at
the time of this investigation he found the first respondent at the
Thabo Mofutsanyana
district office of the applicant. The
commissioner said that the whereabouts of the first respondent was
known to the applicant
and it was equally not in dispute that he was
present at work albeit at a different workstation where he was not
supposed to be
rendering service. In her view section 17(5)(a)
of the PSA presupposes an element of desertion, abandonment and or
absconding
from work with no intention to return to work. She
referred to the decision of
Phenithi v Minister of Education and
other
(2006) 27 ILJ 477 (SCA) at paragraph 19 where it is stated
as follows:
“
In
my view, the provision creates an essential and reasonable mechanism
for the employer to infer desertion when the statutory prerequisites
are fulfilled. In such a case there can be no unfairness, for
the educator’s absence is taken by the statute to amount
to a
‘desertion’.....”
10.
The commissioner said that the first respondent did not desert his
employer. It was common cause that he was at work albeit
not at
Elizabeth Ross hospital where he was required to render his services
by the applicant. She said that in the final
analysis she was
not persuaded that the applicant satisfied the requirements for the
applicability of section 17(5)(a)(i) of the
PSA since he was not
absent from work in the strict sense. The commissioner said
that the applicant should have disciplined
him on account of his
insubordination and or gross dereliction of duty due to his failure
to attend to his work at Elizabeth Ross
hospital. The applicant
wrongly chose an easier way out by invoking section 17(5)(a)(i) of
the PSA in circumstances where this
was not necessary. She
found that the bargaining council had jurisdiction to determine the
alleged unfair dismissal dispute
subject to the provision of the
Labour Relations Act 66 of 1995 (the LRA).
11.
The commissioner then dealt with the fairness of the first
respondent’s dismissal and found that it was both procedurally
and substantively unfair and ordered his reinstatement without any
retrospective remuneration. It is not necessary to deal
with
this since this finding is not challenged on review.
The grounds of
review
12.
The applicant was unhappy with the award and brought a review
application. It was contended that the commissioner committed
a gross
irregularity and the award falls to be set aside. The
commissioner misapplied the provisions of section 17(5)(a)(i)
of the
PSA. The section refers to an officer or employee absenting
himself or herself from his or her official duties.
By
reporting at the district office, the first respondent was not
executing his official duties and accordingly his absence from
the
Elizabeth Ross Hospital was absence as defined by section 17(5)(a)(i)
of the PSA. The commissioner’s interpretation
of the
subsection was incorrect and it is clear from the reference to ‘the
last day of attendance at his or her place of
duty’. The
commissioner erred further in holding that the applicant had a choice
about the implementation and the coming
into effect of the
subsection. This was entirely inconsistent with the deeming
effect of the subsection. It comes into
effect without the
intervention of any party.
Analysis of the
facts and arguments raised
13.
The first respondent was previously employed by the department of
public works as a senior security officer and was transferred
to the
department. He was required to report for duty at the Elizabeth
Ross hospital but did not do so and instead reported
at Thabo
Mofutsanyana district office. He was informed in writing on
numerous occasions to report for duty at the Elizabeth
Ross hospital
but failed to do so. He was then issued with a discharge letter
in terms of section 17(5)(a) of the PSA but
was informed that he
could make representations to the applicant. He duly did so and
was informed that his representations
had failed. He then referred an
unfair dismissal dispute to the bargaining council. The
applicant raised a point
in limine
at the arbitration hearing that the bargaining council did not have
jurisdiction to hear the dismissal dispute since it was a discharge
in terms of section 17(5)(a) of the PSA. The commissioner after
hearing evidence found that the requirements of section 17(5)(a)
were
not met and that the bargaining council had the requisite
jurisdiction and the first respondent’s dismissal was both
substantively and procedurally unfair.
14. The applicant brought
an application to review the arbitration award. The challenge
is limited to the jurisdictional ruling.
It takes no issue with
the commissioner’s finding on the fairness of the dismissal and
the order of reinstatement.
Section 17(5)(a)(i) of the PSA
before it was amended provides as follows:
“
An
officer, other than a member of the services or an educator or a
member of the agency or the service who absents himself/herself
from
his/her official duties without permission of his/her Head of
Department, office or institution for a period exceeding one
calendar
month shall be deemed to have been discharged from the Public Service
on account of misconduct with effect from date immediately
succeeding
his/her last day of attendance at his/her place of duty.”
15. Section 17(5)(b) of
the PSA provides as follows:
“
If
an officer who is deemed to have been so discharged, reports for duty
at any time after the expiry of the period referred to
in paragraph
(a), the relevant executing authority may, on good cause shown and
notwithstanding anything to the contrary contained
in any law,
approve the reinstatement of that officer in the public service in
his or her former or any other post or position,
and in such a case
the period of his or her absence from official duty shall be deemed
to be absence on vacation leave without
pay or leave on such
conditions as the said authority may determine.”
16.
This Court has in several of its judgments set out what the
requirements are in deciding whether the provisions of section
17(5)(a)(i) of the PSA have been met. These are:
16.1
the employee must be an officer;
16.2
the employee must have absented himself or herself from official
duties;
16.3
the absence must be without permission from the head of department or
delegated official.
16.4
the period exceeded one calendar month.
17. It is trite that any
factual enquiry about whether the requirements of section 17(5)(a)(i)
of the PSA have been met, is justiciable
by a court of law and/or the
bargaining council. Once it is found that the requirements have
been met, the bargaining council
will lack jurisdiction to hear the
dispute on the basis of section 17(5)(a)(i) of the PSA. If the
requirements have not been
met, the said provisions would not have
come into operation and the discharge would be invalid and the
dismissal will be substantively
and procedurally unfair. It is trite
that the test to be applied when reviewing a jurisdictional ruling is
whether objectively
speaking the facts that would give the bargaining
council or CCMA jurisdiction to entertain the dispute existed.
If such
facts did not exist, the bargaining council would not have
jurisdiction despite its finding to the contrary. See
Minister
van Onderwys & Kultuur v Louw
[1994] ZASCA 160
;
1995 (4) SA 383
(A) at 388G-H:
“
The
deeming provision comes into operation if a person in the position of
the respondent (i) without the consent of the ‘Head
of
Education’ (ii) is absent from his service for more than 30
consecutive days. Whether these requirements have been
satisfied is objectively determinable. Should a person allege,
for example, that he had the necessary consent and that allegation
is
disputed, the factual dispute is justiciable by a court of law.
There is then no question of a review of an administratve
decision.
Indeed, the coming into operation of the deeming provision is not
dependent upon any decision. There is thus
no room for reliance
on the audi rule, which in its classic formulation, is applicable
when an administrative - and discretionary
- decision may
detrimentally affect the rights, privileges or liberty of a person.”
See
also
Phenithi v Minister of
Education & others
(2006) 27 ILJ
477 (SEA).
18.
The applicant’s representative had contended that a failure to
reinstate an employee in terms of section 17(5)(b) of the
PSA was not
a dismissal and that the bargaining council did not have the
requisite jurisdiction to hear the matter. It was contended
that the
first respondent was to report for duty at Elizabeth Ross hospital
but had reported at the Thabo Mofutsanyana district
office. He
had been informed in writing on numerous occasions to do so but did
not and continued to report at Thabo Mofutsanyana
district office.
The commissioner in finding that the first respondent was not absent
from work in the strict sense of the
word erred. It was
contended that the commissioner misapplied the provisions of section
17(5)(a)(i) of the PSA since it refers
to an employee absenting
himself or herself from his or her official duties. By
reporting at the district office he was not
executing his official
duties and was absent from Elizabeth Ross hospital as defined in
section 17(5)(a)(i) of the PSA. The
commissioner’s
interpretation of the subsection is incorrect. The commissioner
erred further in holding that the applicant
has a choice about the
implementation and the coming into effect of the subsection.
This she did by referring to the applicant
invoking the subsection.
This so it was contended was entirely inconsistent with the deeming
effect of the subsection since
it comes into effect without
intervention of any party.
19.
The first respondent’s case is that at all relevant and
material times during the period of his alleged absence from work
he
was reporting for work at the Thabo Mofutsanyana district office and
not at the Elizabeth Ross hospital.
20. I
have previously in this judgment referred to the commissioner’s
award. It is not necessary to repeat this in full.
She
said that the parties were
ad idem
that the first respondent was an employee of the department.
She said that she would address the remainder of the requirements
collectively since all of them relate to the absence from official
duties and according to the first respondent, he was not absent
from
work. His testimony on this score was confirmed by the
applicant who however indicated that he was not at his assigned
workstation. It was common cause that the first respondent was
informed in writing on numerous occasions since mid 2005 to
March
2007 to report for work at Elizabeth Ross hospital but did not report
for work as directed. At all relevant times he
was reporting
for work at Thabo Mofutsanyana district office and the applicant was
aware that he was reporting there. She
had to determine from
the common cause facts whether by reporting at the Thabo Mofustanyana
district office as opposed to reporting
at Elizabeth Ross hospital
constituted absence from official duties as intended in terms of
section 17(5)(a)(i) of the PSA entitling
the applicant to invoke the
applicability of this section to effect the discharge of the first
respondent.
21.
The commissioner said that the applicant’s witness testified
that the first respondent was seen on countless of occasions
at one
lady’s office at the Thabo Mofutsanyana district office
allegedly his girlfriend. He testified that he was engaged
to
conduct an investigation of misconduct on the first respondent on an
unrelated incident, and at the time of this investigation
he found
the first respondent at the Thabo Mofutsanyana district office of the
applicant. The commissioner said that the
whereabouts of the
first respondent were known to the applicant and it was equally not
in dispute that he was present at work albeit
at a different
workstation where he was not supposed to be rendering service.
In her view, section 17(5)(a) of the PSA presupposes
an element of
desertion, abandonment and or absconding from work with no intention
to return to work. She relied on
Phenithi
at paragraph 19.
22.
The commissioner said that the first respondent did not desert his
employer. It was common cause that he was at work albeit
not at
Elizabeth Ross Hospital where he was required to render his services
by the applicant. She said she was not persuaded
that the
applicant satisfied the requirements for the applicability of section
17(5)(a)(i) of the PSA since he was not absent from
work in the
strict sense. The applicant should have subjected the first
respondent to discipline on account of his repeated
insubordination
and or gross dereliction of duty due to his failure to attend to his
work at Elizabeth Ross hospital. Section
17(5)(a)(i) of the PSA should not have been invoked because the first
respondent was reporting for work at a different work station
and the
applicant was aware of the situation. As opposed to
disciplining the first respondent for his wayward behaviour and
being
on a frolic of his own, the applicant wrongly in the commissioner’s
view chose an easier way out by invoking section
17(5)(a)(i) of the
PSA in circumstances where this was not necessary. The
commissioner said that section 17(5)(a)(i) of the
PSA is a draconian
procedure which must be used sparingly and only when the code could
not be invoked and when the applicant has
no alternative at its
disposal. This case showed that the applicant did not have a
full appreciation of the circumstances
in which section 17(5)(a) of
the PSA should be invoked. She found that the bargaining
council has jurisdiction to determine
the alleged unfair dismissal
dispute of the first respondent subject to the provisions of the LRA.
23. I
have considered the commissioner’s award. The
commissioner has referred to the conflicting judgments of this Court
about what the requirements of section 17(5)(a)(i) of the PSA are.
At the end of the day she found that the requirements
of
section 17(5)(a)(i) of the PSA were not met in that the first
respondent was not absent from his official duties but was performing
duties where he was not instructed to do so. It is clear from
the objective facts placed before the commissioner that the
first
respondent was not absent from his official duties. He was
performing duties but not where he was instructed to do
so. It
is not necessary to deal with what the commissioner had said about
whether the applicant should have invoked the provisions
of section
17(5)(a)(i) of the PSA. Those statements were said
obiter.
The fact is that the commissioner found
that the first respondent was present at work but at a different
workstation and that the
requirements of the section had not been
met. The position would have been different if the first
respondent was not reporting
for duty at all. Since the
commissioner has found that the provisions of section 17(5)(a)(i) of
the PSA were not met, it
becomes unnecessary to deal with whether a
dispute can be referred to the bargaining council after
representations were rejected
in terms of section 17(5)(b) of the
PSA.
24. I am satisfied that
the commissioner correctly found that the bargaining council had
jurisdiction to hear the dispute.
The commissioner has not
committed any reviewable irregularity.
25.
Since the applicant did not deem it necessary to challenge the
commissioner’s findings that the dismissal was procedurally
and
substantively unfair, it becomes unnecessary to deal with this.
26.
The application stands to be dismissed.
27.
The first respondent had applied to make the arbitration award an
order of court in terms of section 158(1)(c) of the LRA.
There
is no reason why the application should not be granted.
28.
There is no reason why costs should not follow the result.
29. In
the circumstances I make the following order:
29.1
The late filing of the review application is granted.
29.2
The review application is dismissed.
29.3
The arbitration award dated 18 December 2007 under case number PSHS
256-07/08 issued by commissioner M V
Phatshoane of the Public Health
& Social Development Sectoral Bargaining Council is made an order
of court in terms of section
158(1)(c) of the LRA.
29.4
The applicant is to pay the costs of the applications.
___________________
FRANCIS
J
JUDGE OF THE LABOUR
COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: I P GOUGH OF STATE ATTORNEY
FOR THIRD
RESPONDENT
:ATTORNEY M M BALOYI
DATE
OF HEARING
: 10 JUNE 2010
DATE OF
JUDGMENT
: 7 SEPTEMBER 2010