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[2010] ZALCCT 38
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Director-General: Office of the Premier of the Western Cape and Another v South African Medical Association obo Broens and Others (C420/2007) [2010] ZALCCT 38 (26 November 2010)
Not reportable
Of interest to other
judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case no: C 420 / 2007
In
the matter between:
DIRECTOR-GENERAL:
OFFICE OF THE
PREMIER
OF THE WESTERN CAPE
First applicant
THE
HEAD: HEALTH
DEPARTMENT
OF HEALTH, WESTERN CAPE
Second applicant
and
SOUTH
AFRICAN MEDICAL ASSOCIATION
OBO
B.H.
BROENS
First respondent
THE
PUBLIC HEALTH AND WELFARE
SECTORAL
BARGAINING
COUNCIL
Second respondent
LAWRENCE
RAMABULANA
N.O.
Third respondent
JUDGMENT
STEENKAMP
J:
Introduction
[1]
Dr Hermanus Broens was employed as a principal medical officer at
the Bellville community health centre. He was diagnosed with anxiety
and depression with a social phobia. His psychiatrist recommended
that he be redeployed in a non-clinical capacity. On 14 June
2004, he
received a letter headed "
TERMINATION OF CONTRACT OF
EMPLOYMENT”
from his employer, the Department of Health
(the second applicant in these proceedings). On 7 July 2004, he
received a second letter
headed "
RE:
TERMINATION OF
SERVICE".
[2]
Dr Broens ("the employee") referred an unfair dismissal
dispute to the Public Health and Welfare Sectoral Bargaining
Council
(the second respondent in these proceedings). The arbitrator (the
third respondent in these proceedings) found that the
dismissal was
unfair on both procedural and substantive grounds. He ordered that
the employee be reinstated retrospective to the
date of his
dismissal, and he ordered the Department of Health to appoint him in
a non-clinical equivalent post.
[3]
The
applicants seek to review and set aside that arbitration award. Their
primary argument is that the employee was not dismissed,
but that the
termination of his employment arose by operation of law in accordance
with the provisions of section 17 (5) (a) (i)
of the Public Service
Act.
[1]
If that is so, they say,
the Bargaining Council had no jurisdiction.
[4]
In the event that the termination did constitute a dismissal and that
the Bargaining Council did have jurisdiction, the applicants
argue
that the finding of an unfair dismissal and the reinstatement into a
non-clinical position are reviewable.
Condonation
[5]
The supplementary and replying affidavits were filed late. The main
reason for the delay was that the parties had been in settlement
negotiations. The employee and his representative trade union, the
South African Medical Association, did not oppose the application
for
condonation. I agree that it is in the interests of justice that
condonation be granted and the evidence and argument in the
matter be
fully ventilated.
Background facts
[6]
The employee was diagnosed in June 2002 with anxiety and depression
with a social phobia. His psychiatrist recommended that
he be
deployed in a non-clinical capacity. On 21 January 2003 he met with
the acting medical superintendent to discuss his possible
redeployment to another position. It appears from the evidence at
arbitration that, after that discussion, he was waiting for the
Department to deploy him into a nonclinical position.
[7]
In April 2003, the chief medical officer told the employee that there
were no alternative posts available and that the Department
intended
to commence proceedings to declare him medically unfit to continue
employment, i.e. to have him medically "boarded"
in the
common parlance of the workplace.
[8]
On 15 September 2003, the Department notified the employee that it
intended to commence with medical boarding procedures due
to ill
health. On 12 November 2003 the employee consulted a psychiatrist at
the insistence of the Department in order to determine
his ability to
continue working. The psychiatrist recommended that he be placed in
an alternative post as opposed to being medically
boarded.
[9]
It is not evident from the record of the arbitration proceedings that
the Department at any stage informed the employee that
it had
accepted the psychiatrist's recommendation. What appears to be common
cause is that the employee did not return to work
after 12 November
2003. On his version, he was sent into what was described by his
counsel as "a state of bureaucratic limbo".
He was not
offered any alternative placement, nor was he boarded.
[10]
The next proactive step by the Department was to send the employee. A
letter on 14 June 2004. It is common cause that there
was no
discussion or consultation between the parties prior to that letter
having been sent. The letter is headed, "
TERMINATION OF
CONTRACT OF EMPLOYMENT".
It comprises one line, stating:
"You are hereby notified that your contract of employment with
the Department of Health, Provincial
Government of the Western Cape
is terminated with immediate effect."
[11]
Some three weeks later, on 7 July 2004, the Department sent the
employee another letter. This letter was headed, "
RE:
TERMINATION OF SERVICE
"
.
It read as follows: "Due
to the fact that you have been absent from official duty with prior
permission for more than one calendar
month since 13 October 2003,
your services are deemed to be terminated due to misconduct in terms
of section 17(5)(a)(i) of the
Public Service Act, 1994, with effect
from 13 October 2003. "
[12]
The
employee then referred an unfair dismissal dispute to the Bargaining
Council. Conciliation failed and he referred the dispute
to
arbitration.
[2]
The employee
testified on his own behalf. The Department called only one witness,
the chief medical officer, Dr Robert Martell.
Martell testified that
he recalled having a meeting with the employee concerning his
redeployment to a non-clinical function. As
there was no such
position available, Martell was instructed to terminate the
employee’s services and he drafted the letter
of 14 June 2003.
[13]
The arbitrator noted that the employer bears the onus of proving that
the dismissal was fair. He noted that, though the employer
had called
the witness, "they failed to provide evidence of any wrongdoing
on the part of the employee that would have necessitated
the
institution of disciplinary or dismissal procedures. The witness, Dr
Martell has no knowledge of [the employee’s] absence
and why
and how it would have been necessary to dismiss the [employee].
According to him he acted on instructions."
[14]
The arbitrator found that there was "no case against"
against the employee and that his dismissal was unfair. He
ordered
the Department to reinstate the employee and to appoint him in a
non-clinical equivalent post.
Was the employee
dismissed?
[15]
The applicants argued that the employee’s contract of
employment was terminated by operation of law, by virtue of the
provisions of section 17(5)(a)(i) of the Public Service Act. They
argue that he had been absent from his official duties for
approximately
nine months. They also argue that he was absent without
the Department’s permission.
[16]
The relevant provision reads 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
or herself from his or her
official duties without permission of his or her head of department,
office or institution for a period
exceeding one calendar month,
shall be deemed to have been discharged from the public service on
account of misconduct with effect
from the date immediately
succeeding his or her last day of attendance at his or her place of
duty."
[17]
The applicants argue that the employee did not apply for sick leave
and that he was therefore absent without permission. Therefore,
they
say, the termination of his service falls within the deeming
provision and he was not dismissed with in the definition of
the
Labour Relations Act. If that is so, the arbitrator did not have
jurisdiction to deal with an unfair dismissal dispute.
[18]
There are two problems with this submission. Firstly, when the
Department terminated the employee’s contract of employment
on
14 June 2004, it made no mention of the provisions of the Public
Service Act. Dr Martell could not shed any further light on
the
letter at arbitration, save to say that he had been instructed to
write the letter. He could not explain why the later letter
of 7 July
2004 had been sent to the employee. He did not try to explain that
the earlier letter had been sent in error or that
subsequent facts
came to light. In other words, when the Department purported to
notify the employee on 7 July 2003 that his contract
of employment
had been terminated by operation of law, it had already dismissed him
three weeks earlier, on 14 June 2004. And he
could not have been
discharged “with effect from the date immediately succeeding
his or her last day of attendance at his
place of duty”,
referring to 13 October, because he had been absent “for a
period exceeding one calendar month”
from that date. He only
went to see the psychiatrist, at the Department’s request, a
month later, on 12 November 2003.
[19]
Secondly, it appears from the record filed by the Bargaining Council
that the arbitrator had considered the issue of jurisdiction
in terms
at conciliation stage on 2 March 2007. In terms of that ruling, both
parties recorded their consent to have the matter
arbitrated by the
Bargaining Council. Specific reference was made to s 17 of the Public
Service Act; yet the arbitrator recorded
the parties’ consent
with regard to jurisdiction as follows: "The dismissal of the
applicant is in terms of section
186 of the [Labour Relations] Act
and arbitrable by the Bargaining Council." That ruling was not
taken on review. Neither
did the Department raise the jurisdictional
point again at arbitration. It appears, therefore, that the parties
had specifically
agreed that the employee had been dismissed as
contemplated in section 186 of the Labour Relations Act and that the
Bargaining
Council did have jurisdiction.
[20]
In any event, there is no evidence that the employee was indeed
absent without permission. The employer instituted a process
in
September 2003 to board the employee for ill-health. On 13 October
2003, it was noted at a Department meeting that "proceedings
have… begun for his services to be terminated due to ill
health (depression)". He was instructed to go to Stikland
hospital for assessment on 29 October 2003. He saw a psychiatrist on
12 November 2003. Contrary to what was stated in the letter
of 7 July
2004, therefore, he was not "absent from official duty without
prior permission for more than one calendar month
since 13 October
2003". It appears that, during this time, the Department was
still considering his position and he was under
the impression that
the Department was still trying to find a suitable post for him.
Alternatively, the Department would have had
to proceed with the
medical boarding procedure. They did not do that either.
[21]
The
facts of this case are distinguishable from those in the recent case
of
Grootboom
v NPA & another.
[3]
In
Grootboom,
the
employee went overseas without after his application for leave had
been turned down. He clearly had no authorisation for his
absence.
[22]
In
Phenithi
v Minister of Education & others
[4]
the
Supreme Court of Appeal explained the purpose of a similar deeming
provision in the Employment of Educators Act
[5]
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'. Only the very clearest cases are covered. Where this is
in fact not the case, the Act provides ample
means to rectify or
reverse the outcome."
[23]
The case before me is not one of those "clearest cases". It
is by no means clear that the employee had deserted.
Even if the
deeming provision in s 17(5) of the Public Service Act had been
applicable, it would not have applied to the facts
of this case.
[24]
As
Pillay J noted in
HOSPERSA
& another v MEC for Health
[6]
:
"All in all, section
17 (5) is a Draconian procedure. It must be used sparingly and only
when the code cannot be invoked when
the employer has no other
alternative. That would be so, for example, when the respondent is
unaware of the whereabouts of employees
and cannot contact them. Or,
if the employees make it quite clear that they have no intention of
returning to work. The code is
a less restrictive means of achieving
the same objective of enquiring into and remedying an employee’s
absence from work.
It enables employees to invoke the rights to fair
labour practice and administrative justice. All the jurisdictional
prerequisites
for proceeding in terms of section 17(5)(a)(i) must be
present before it is invoked."
[25]
On the facts of this case, not all the jurisdictional prerequisites
for invoking the provisions of s17(5)(a) were present.
It is by no
means clear that he was absent without permission and the Department
was still exploring alternatives at the time.
Is the award nevertheless
reviewable?
[26]
The
applicants argued in the alternative that the award is nevertheless
reviewable for unreasonableness, as contemplated in
Sidumo
v Rustenburg Platinum Mines Ltd
.
[7]
Their main argument in this regard is that the arbitrator exceeded
his powers as contemplated in section 145(2)(a)(iii) of the
Labour
Relations Act.
[27]
The applicants’ argument is that section 193 of the LRA
provides for only three remedies for unfair dismissal, i.e.
reinstatement; re-employment; or compensation. An order of
reinstatement restores the
status quo ante.
The arbitrator
cannot order reinstatement, the applicants argue, and then order the
employer to appoint the employee in a different
post.
[28]
It does appear anomalous that section 193(2)(b) specifically gives
the court or the arbitrator the power to order the employer
to
re-employ the employee, "either in the work in which the
employee was employed before the dismissal
or in other reasonably
suitable work
on any terms and from any date not earlier than the
date of dismissal;" yet it is silent on the terms of an order to
reinstate.
That must be so because, in the normal course, an order
for reinstatement is indeed retrospective and is designed to place
the
employee back into the position that he or she occupied before
dismissal. But does that mean that an arbitrator does not have the
power to reinstate an employee, and yet to order the employer to
place that employee in a different position?
[29]
In
my view, a purposive interpretation of the Act does not preclude such
an order. Reinstatement is the primary remedy in terms
of section 193
(2). One of the exceptions is where "it is not reasonably
practicable for the employer to reinstate or re-employee
the
employee.” It is clear that, on the facts of this case, it is
not reasonably practicable for the employer to reinstate
the employee
in
the same position
.
That would be defeating the object. The very outcome of his referral
to a psychiatrist was the recommendation that he should be
placed in
a non-clinical position. It cannot be that an arbitrator faced with
these facts cannot use his discretion to order the
employer to give
effect to such a recommendation. The Commissioner may make
any
appropriate
arbitration
award in terms of the Act, including, but not limited to, an award
that gives effect to the provisions and primary objects
of the
Act.
[8]
One of those objects is
the effective resolution of labour disputes.
[9]
Had the arbitrator in this case simply reinstated the employee, it
would not have resolved the underlying dispute.
Conclusion
[30]
The decision reached by the arbitrator is not so unreasonable that no
arbitrator could have come to the same decision. Neither
am I
satisfied that he has exceeded his powers by ordering the employer to
appoint the employee in a non-clinical equivalent post.
[31]
With regard to costs, I take into account that the effect of the
arbitration award and of this judgement will be that the parties
have
to forge a new relationship. In those circumstances, I do not deem it
prudent in law or fairness to make a costs order.
[32]
The application for review is dismissed. There is no order as to
costs.
_______________________
ANTON
STEENKAMP
JUDGE
OF THE LABOUR COURT
CAPE
TOWN
Date
of hearing:
11 November 2010
Date
of judgment:
26
November 2010
For
the applicants:
Adv EA de Villiers
- Jansen
Instructed
by:
The state attorney
For
the respondent:
Adv CS Kahanovitz SC
Instructed
by:
Bagraims Inc
[1]
Proclamation 103 published in
Government
Gazette
15791
of 3 June 1994.
[2]
It took more than 2 years from the referral to conciliation for the
conciliation and subsequent arbitration to take place. The
reasons
for the delay are not clear from the record.
[3]
[2010] 9 BLLR 949 (LC)
[4]
2008 (1) SA 420
(SCA) para [19]
[5]
Act 76 of 1998
[6]
(2003) 24
ILJ
2320
(LC) para [37]
[7]
2008 (2) SA 24
(CC)
[8]
s 138 (9)
[9]
s 1(d)(iii)