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[2011] ZALCJHB 100
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Mogola and Another v Head of the Department: Department of Education NO (JR2987/2010) [2011] ZALCJHB 100; [2012] 6 BLLR 584 (LC); (2012) 33 ILJ 1203 (LC) (17 November 2011)
15
REPUBLIC OF SOUTH AFRICA
the labour court of
South Africa, JOHANNESBURG
REPORTABLE
CASE
NO: JR2987/2010
In the matter between:
MOGOLA MJ
…..........................................................................................
First
Applicant
MOGOLA SD
….....................................................................................
Second
Applicant
and
HEAD OF THE
DEPARTMENT:
THE DEPARTMENT OF
EDUCATION N.O
…................................................
Respondent
Heard
:
16 August 2011
Delivered
:
17 November 2011
Summary:
Review
– decision
section 14(2)
of the
Employment of Educators Act of
1998
. Employment of two educators deemed to have been terminated in
terms of
section 14(1)
of the
Employment of Educators Act.
JUDGMENT
MOLAHLEHI J
Introduction
This is an application in terms of
which the applicants seek to review and have set aside the decision
of the respondent in terms
of which their employment was terminated.
In terminating the employment of the applicants, the respondent
invoked the provisions
of
section 14(1)
of the
Employment of
Educators Act (the
EEA).
1
Section 14(1)
of the EEA deems an educator who is absent from
service for a period exceeding 14 (fourteen) days without
authorisation to be
discharged from duty.
2
The application of this subsection is not in issue in this matter.
The issue concerns the application of subsection (2) of
section 14
of the EEA, which reads as follows:
‘
(2)
If an educator who is deemed to have been discharged under
paragraph
(a) or (b) of subsection (l) at any time reports for duty, the
employer
may, on good cause shown and notwithstanding anything to the
contrary
contained in this Act approve the reinstatement of the educator
in
the educator's former post or in any other post on such conditions
relating
to the period of the educator's absence from duty or otherwise as the
employer may determine.’
The applicants further seek
condonation for the late filing of their review application.
Background facts
The applicants who are husband and
wife were prior to their dismissal employed by the Department of
Education: Limpopo as educators.
The first applicant was prior to
his dismissal employed as the deputy manager of Matswidikanye
primary school which fell under
the Ramokgopa district. The second
applicant was prior to her dismissal employed as an educator at the
same school.
At the time of his dismissal the
first applicant was acting as the manager of the school, the
manager, having taken early retirement.
The relationship between the
first applicant and some of the teachers at the school, deteriorated
soon after taking office as
the acting manager. It would appear that
some teachers were not happy with the appointment of the first
applicant as acting manager
and sought to challenge it by writing a
letter to the circuit manager.
The circuit manager from Ramokgopa
district intervened in the conflict and attempt resolving it.
However, not so long thereafter,
the school was transferred to
another district, Rakgwadi district. The circuit manage for Rakgwadi
district was Mr Phakula.
On 26 January 2005 Mr Phakula
informed the first applicant that he had been approached by a group
of people who called themselves
community task team which consisted
of the school governing body members and members of the community.
He informed the first
applicant that this group was intent on
evicting him as the acting manager of the school. The group
apparently informed the circuit
manager that they had their own
preferred person serve as acting manager.
On 17 February 2005 the community
task team arrived at the school, demanded that the children be
released to go home and thereafter
convened a meeting at another
primary school nearby. Initially the first applicant sought to
resist the call but the task team
members went around the classrooms
telling the learners to go home. The first applicant reported the
incident to the circuit
manager. The applicant reported for work the
following day on 19 February 2005 to find that the school gates were
still locked.
Thereafter the circuit manager
convened a meeting with the school governing body, attended also by
the first applicant. At that
meeting, the first applicant was
accused of signing cheques without authorisation, misusing school
funds by buying himself a
car and appointing his wife as his deputy.
On 23 February 2005, on his way to
report at the district office, the first applicant received a call
from the second applicant,
informing him that she was also evicted
from the school. This incident occurred a few days after the first
applicant had addressed
a letter to the district office, informing
it that he had received a call from someone in the district office
informing them
that they ought to have returned to their school as
early as January 2006.
During March 2006, the first
applicant became aware that the position of the school manager was
advertised and the arrangements
for the interviews were already
underway. He then instructed attorneys to address a letter to the
district office raising his
concern about the process. The first
raised the objection because he believed that there was an
understanding with his union
that the position of manager would not
be advertised pending the finalisation of the conflict.
On 19 January 2007 the first
applicant received a letter from the respondent informing them to
report at school on 22 January
2007. The first applicant responded
and indicated that he would not be returning to school until his
eviction problem was resolved.
Another letter was addressed to the
first applicant, informing her to report to a different school on 22
January 2007. The said
school is apparently a walking distance from
the one where the applicants had been evicted.
Towards the middle of the year 2007,
the circuit manager convened a meeting which was attended by the
applicants and the union
representatives, and at the said meeting,
the circuit manager pleaded with the school governing body to allow
the first applicant
to return to the school. It was then agreed that
the first applicant would not return to school and that the second
applicant
will not be transferred to another school. It was also
agreed that the two would continue reporting at the circuit office.
The first applicant says that his
union (PEU), had agreed with the circuit manager that:
Both the applicants would not be
transferred to any school;
The team should be formed to educate
the community about the conditions of employment of educators;
The consultation process, would be
put in place to speed up the process of resolving the problem and
to have applicants back
at work.
In the meantime, Mr Phakula, the
circuit inspector with whom the above understanding was reached
resigned and was replaced by
Ms Sechaba. Soon after the appointment
of the new circuit manager, the second applicant was informed that
she had been transferred
to Munich Primary School which is in the
same village as the one from which the second applicant had been
evicted from.
The first applicant says every 23
rd
of the month he would sneak in at the school to collect his salary
advice and would in this regard speak to the school manager.
There
were however certain months when the applicants would not receive
their salaries. On enquiry from the circuit office they
were told it
was an administrative error. The problem did not arise for the
months May, June and July 2009.
The second applicant did not receive
her salary in August 2009 and when she enquired from the circuit
office she was referred
to the human resources manager who informed
her that the reason for the non payment of both her salary and that
of the first
respondent was because they have been absent without
valid reasons. In this respect the applicants received a letter
dated 5
October 2009 which reads as follows:
‘
SUBJECT:
DISCHARGE FROM SERVICE ON ACCOUNT OF ABSCONMENT: YOURSELF
The
above matter bears reference.
You
have been absent without valid reasons or permission from the
employer for a period exceeding fourteen (14) consecutive days.
You
are deemed to have to have discharge yourself from the Public
Service in terms of Section 14 (1) (a) of the Employment of
Educators Act 76 of 1998 (as amended)
The
termination is with effect from 21
st
February 2005.
If
there is any liability arising same will be recovered from your
pension benefits.
You
have the right to show good cause in terms of section 14 (2) of the
Employment of Educators Act 76 of 1998 (as amended).’
At the time of receiving the letter
the applicants were already aware of their dismissal and had in that
regard approached their
legal insurance for assistance. It would
appear that they initially wanted to launch an urgent application
but were advised that
they had no prospects of succeeding with such
cause of action. They then lodged an unfair dismissal dispute with
the Education
Labour Relation Council (the ELRC).
The applicants also made
representations to MEC’s office, seeking to show good cause
for their absence from their workplace.
Their representations were
unsuccessful and accordingly received letters advising them that
their discharges were confirmed.
In other words their termination
could not be reversed.
The applicants referred a dispute to
the Education Labour Relations Council (the ELRC). The respondent
raised a point in
limine
concerning jurisdiction when the
matter came before the ELRC. The ELRC upheld the point and ruled
that it did not have jurisdiction
as the termination was in terms of
the operation of the law. The ruling is dated 6 July 2010.
In the present matter the respondent
has in defence raised the following grounds:
‘
5.1
The Applicant has not alleged enough facts to make out a case.
In
launching the application the Applicants have unreasonably delayed
and for this reason alone application should be dismissed.
The
Applicants have been discharged from the public service in terms of
section 14(1)(a)
of the
Employment of Educators Act as
amended,
were given an opportunity to make a representation and on the basis
of their representation the Department decided
that the Applicants
did not show good cause and therefore decided against reinstating.’
Principles governing application
for condonation.
It is trite in our law that in
considering an application for condonation the Court has discretion
to exercise. In exercising
that discretion the court has to do so
upon consideration of a number of well established factors. The
factors which the court
has to take into account in considering
whether or not to grant condonation are: the degree of lateness, the
explanation for
the delay, the prospects of success, and prejudice.
Other basic principle to apply in
considering whether to grant or refuse condonation are:
the factors mentioned above are
not exhaustive and are not to be weighed in isolation of each
other.
condonation must be refused
where the applicant fails to show prospects of success in the
main application.
Condonation must be refused
where the applicant fails to provide a reasonable and
satisfactory explanation for the delay.
The applicant must bring an
application for condonation as soon as he or she becomes aware
of the need to apply for
condonation.
It is clear from the facts of this
case that from the beginning the applicants sought to actively
challenge the decision which
they believed was an unfair dismissal
which needed to be resolved through the Labour Relations Act of
1995. They never abandoned
their claim. They were ill-advised by
both their union and their attorney. They referred their dispute to
the ELRC and as soon
as the ruling was made that the ELRC did not
have jurisdiction they referred the matter to the court. There may
have been some
delay between the issuing of the jurisdictional
ruling and the referral to the court but such delay is in my view
insignificant
when weighed against all other factors relating to the
consideration of condonation. In any case such delays have been
compensated
by the strong prospects of success which the applicants
have on the merit.
Accordingly the condonation for the
late filing of the review application is granted.
The application of section 14 (1)
and (2) of the EEA
It is common cause that in
terminating the employment relationship with the applicants the
respondent invoked the provisions of
Section 14 (1) of the EEA. The
employment relationship was thus terminated by the operation of the
law.
The respondent afforded the
applicants the opportunity to make representations in terms of
section 14 (2) of the EEA. The respondent
rejected the submission
made by the applicants and thus upheld the termination of the
employment of the applicants which as indicated
earlier came into
effect by operation of the law. In other words the applicants were
deemed to have been discharged for being
absent from work without
permission of the respondent.
It is now trite that termination of
employment in terms of section 14(1) of the EEA does not amount to a
dismissal as envisaged
under section 186 read with section 191 of
the Labour Relations Act (the LRA).
3
The issue raised by the respondent in the present case concerns the
jurisdiction of this Court to entertain the claim of the
applicants
under section 14(2) of the EEA.
The issue of jurisdiction in relation
to the provisions of section 14(2) of the EEA received attention in
the Cape Provincial
Division in the matter of
De Villiers v
Minister of Education and another.
4
In that matter the applicant whose employment was terminated in
terms of section 14(1) of the EEA applied to be reinstated in
terms
of section 14(2) of the EEA. The application was declined by the
employer and accordingly the applicant launched a application
in
terms of section 6 of the Promotion of Administrative Justice Act of
2000 (PAJA), for review of that decision. In refusing
to entertain
the matter Davis J with Allie J concurring, held that that the
Labour Court had exclusive jurisdiction to determine
the matter. The
matter was then subsequently brought before the Labour Court under
the same citation of
De Villiers V Minister of Education and
another.
5
In that case, the Labour Court concluded, per Van Nieker J, that in
the first instance the Court had jurisdiction to review the
decision
of the employer in refusing to reinstate an employee in terms of
section 14(2) of the EEA as the decision of the employer
under that
subsection constituted an administrative action. The Court found
that the decision not to reinstate the applicant
was an
administrative action because the discretion not to reinstate the
employee arose directly from the exercise of the discretion
given to
the employer by the statute, namely the EEA.
In
Grootboom v NPA and Another,
6
this Court aligned itself and quoted with approval what was said in
De Villiers
, when 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 acknowledged
what the Constitutional Court said in both
Chirwa
,
supra
,
and
Gcaba
,
supra
,
regarding the application of the principles of administrative action
in cases involving the State employees.’
The Court in the
Grootboom
matter
further said:
‘
[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
,
supra
,
and
Gcaba
,
supra
.’
In this respect it could never have
been the intention of the legislature that those employees whose
services were terminated
under section 14(1) of the EEA should not
have a remedy in case they were to report for work after the expiry
of the 14 (fourteen)
days of absence. In granting the discretion
under section 14(2) the legislature recognised that there would be
cases where there
is legitimate and reasonable explanation for
absence from duty and those where there would be none. It is for
this reason that
the Court is duty bound to intervene where the
discretion has not been properly exercised. As Van Niekerk J puts it
in
De Villiers
:
‘
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.’
In the event the above approach is
incorrect, the alternative basis upon which the jurisdiction of the
Court in matters involving
the provisions of section 14(2) of the
EEA can be found is in the provisions of section 158 (1) (h) of the
LRA read with the
provisions of section 1 of the Constitution.
7
In this respect the jurisdiction can be founded under the principles
of legality.
8
In supporting the proposition that the jurisdiction of the Court in
matter of this nature can be found in the principle of legality,
the
Court in De Villiers (at paragraph [23] held that:
‘
[23]
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.’
The issue that then arises from the
conclusion that this Court does have jurisdiction to entertain this
matter is whether the
respondent in rejecting the applicants
submission and upholding the dismissal acted in a manner that is
fair, reasonable and
justifiable regard being had to the
circumstances and the facts of this case. In my view the answer is
simply that the respondent
failed to apply his mind to the
submission made by the applicants and therefore the decision
rejecting the submission made by
the applicants stands to be
reviewed and set aside for being unfair and unreasonable. The
decision is unreasonable because it
is not one which a reasonable
functionary in the position of the respondent could have reached.
In the first instance the respondent
ought to have been aware of the circumstances and the context that
led to the eviction of
the applicants from the school. Those facts
and the circumstances are fully set out in the applicants’
submission which
was made after their dismissals.
The important facts which when
considered cumulatively encapsulate the need for justice to be done
to the applicants and which
the respondents ignored in exercising
his statutory discretion in terms of section 14(2) of the EEA are:
(a) The applicants were evicted from
the school by the parents of the learners. The parents also took the
school keys from the first
applicant.
(b) After the eviction attempts were
made to resolve the conflict.
(c) Arrangements were by the
respondents that the applicants were to report for work at the
circuit office.
(d) The circuit office failed to put
in place proper reporting mechanism for the applicant. The applicants
had to write to the new
circuit manager pleading with her that there
was a need for a proper register for attendance.
(e) The agreed process of educating
the community about the rights of the applicants as educators seems
to have failed because there
is no evidence that the parents did
agree that the applicants could come back to school. It seems to me
that there could be no
other understanding that educating the
community about the training the community about the rights of the
applicants meant informing
the community about the right to a fair
procedure before termination of their employment including the
existence of a fair and
valid reason. In the circumstances of this
case the right to a fair reason arose as soon as the respondents
called upon the applicants
to make submission as to why the
termination of their employment by operation of the law should be
reversed.
(f) It was not disputed that the
transfer of the second applicant to the other school in the same
village was discussed with the
union and the understanding reached it
would seem was that she would not be transferred pending the
resolution of the conflict
with the community. The possibility of an
attack on her by the community that seemed very angry at her could
not be ruled out.
(h) The first applicant regularly
sneaked into the school to collect their salary advices. He states in
the submissions that he
sneaked in because he was scared of being
chased or threatened with violence.
The need for justice to be done to
the applicants must be understood in the context where the
respondent in the answering affidavit
says:
‘
Due
to the intransigence of the Mailula Community, on 10 August 2005 the
District Senior Manager wrote a letter to Phakula as well
as SGB
informing them of the then Head of Department’s decision to
dissolve the SGB of the Primary.’
It would seem that the dissolution of
the School Governing Body did not resolved the conflict as in the
words of the deponent
to the answering affidavit, Mr Boshielo, the
applicants continued to report at the circuit office. It is apparent
that the conflict
was not limited to the tension between the
applicants and the School Governing Body but also the broader
community. The broader
community was unhappy with the first
respondent because amongst others the parents of the primary school
were expected to buy
books whereas the same did not apply to the
neighbouring high schools. It was for this reason and those listed
at paragraph 6
of the answering affidavit that the parents were in
the words of Mr Boshielo, ‘
threatening to take matters into
their own hands.’
It is also important to note that the
first applicant was never charged with misconduct regarding the
allegations which the parents
levelled against him and therefore
they remained unsubstantiated and could therefore not have formed a
basis for consideration
under section 14(2) the EEA.
It is important to note that the
notices of termination dated 5 October 2009, say that the dismissal
of the applicants are backdated
to the 21 February 2005. This is two
days after the applicant were locked out of the school gates. It is
also few days after
the school keys were taken from the first
applicant.
On the day the keys were taken from
him the applicant had to call the police to intervene. The situation
at the school on 22 February
2005 is described by Mr Baloyi, the
police officer who intervened as follows:
“
On
my arrival at the school with other police members, I found a lot of
community members in the school yard and were shouting that
Mr
Mokgola must get out from the school yard. The situation was very bad
that it took us 3 to 4 hours to move Mokgola out of the
school yard
as the gates were locked after I parked the police vehicle in the
schoolyard.
After
a long time I managed to drive away Mr Mokgola in the police vehicle
and his wife was driven from the school premises with
her husband’s
car by the police officer. The two were escorted to their homes and
no one was harmed or injured.”
In addition to the above facts it
should be noted that this is not a case in which it can be said that
the respondent did not
know the whereabouts of the applicants. This
fact on its own called for the respondent to use section 14 of the
EEA sparingly
because its consequences can be devastating to even
employees who are absent from work for good and valid reasons. The
absence
of the applicants in this instance was understandably due to
the unlawful means used by the community to evict them. The
respondent
failed to protect the applicants’ right to work by
acceding to the unlawful conduct of the community.
There is no evidence that the
respondent ever took steps to call members of the community to order
or for that matter seek the
intervention of the state machinery to
enforce the rule of law. I therefore do not agree with Mr Moosam,
for the respondent that
the applicants’ claim should amongst
others fail because they have failed to show in their papers that
they feared for
their lives. The facts speak for themselves. The
respondent has over a considerable period failed to call the
community to order
and to ensure the safety of the applicants from
the time they were evicted to the time the school keys were
illegally taken from
the first applicant. There is no evidence that
the respondent has placed the community on terms with regard to
their unlawful
interference with the right to work of the
applicants. This suggests that the respondent who had at his
disposal the state machinery
to enforce the law seems to have also
been scared of the community.
I accept that the applicants may be
criticized for refusing to report back to the schools they were
respectively advised to report
to. However in my view a reasonable
and fair minded decision maker in the position of the respondent
would in considering the
submission made by the applicants in terms
of section 14 (2) have taken into account the facts and
circumstances of this matter
and could in applying his or her mind
appreciated that fairness dictated that termination of the
employment of the applicants
ought to be reversed. Other steps and
measures could have been taken thereafter if the applicants
persisted with their position.
In fact had the respondent applied
his mind properly to the facts he ought to have realised that the
conditions precedent to evoking
the provisions of section 14(1) of
the EEA were not present and therefore the provisions of that
subsection were improperly evoked.
From the about the 22 February
2005, the applicants did not report for duty at the school with the
arrangement (permission) of
the respondent. The applicants could not
be said to be absent from work without permission when arrangement
were made after their
eviction for them to report at the circuit
office. At bests it seems to me that the applicants may have failed
to obey an instruction,
whether that would have been reasonable and
or lawful is not a matter for determination by this Court at this
stage.
Conclusion
In conclusion I find that the Labour
Court does have jurisdiction to intervene where in the application
of the provisions section
14(2) of the EEA the functionary fails to
properly and fairly apply his or her discretion in determining
whether or not the deemed
discharge of an educator under sub-section
(1) of section 14 should be reversed. As concerning the merits of
the matter I find
that the applicants have made out a case
warranting the intervention by the Court.
And finally as concerning costs, I
see no reason in law and fairness why costs should not follow the
results.
Order
In the premises the following order
is made:
The decision of the respondent made
in terms of
section 14(2)
of the
Employment of Educators Act of
1998
is reviewed and set aside.
The applicants are reinstated with
immediate effect in their employment on the same terms and
conditions as those which governed
their employment immediately
prior to their deemed discharge in terms of
section 14(1)
of the
Employment of Educators Act of 1998
, save for the exclusion of the
acting school manager position which the first applicant occupied
prior to the discharge.
The respondent is to pay the costs
of the proceedings.
_______________
Molahlehi J
Judge of the Labour Court of South
Africa
Appearances
:
For the applicant: Adv. N.
Rali-Ralikhuvhana instructed by LLR Attorneys
For the respondent: Adv. Moosam
instructed by State Attorney
1
Act
76 of 1998
2
Section
14 (1) of the EEA reads as follows:
“
An
educator appointed in a permanent capacity who-
is
absent from work for a period exceeding 14 consecutive days
without permission of
the employer;
while
the educator is absent from work without permission of the
employer, assumes
employment in another position;
(c) while suspended from
duty, resigns or without permission of the
employer assumes
employment in another position; or
(d) while disciplinary
steps taken against the educator have not yet
been disposed of,
resigns or without permission of the employer
assumes employment in
another position,
shall, unless the
employer directs otherwise, be deemed to have been
discharged from service
on account of misconduct, in the circumstances
where-
paragraph
(a) or (b) is applicable, with effect from the
day following
immediately after the last day on which the
educator was present at
work; or
paragraph
(c) or (d) is applicable, with effect from the
day on which the
educator resigns or assumes employment in
another position, as the
case may be.
3
66
of 1995.
4
[2009]
1 All SA 362
(C)
.
5
[2010]
JOL
24964.
6
[2010]
9
BLLR
949
(LC)
7
In
terms of section 1(c) of the Constitution South Africa is founded on
the principle of ‘ Supremacy of the constitution
and the rule
of law.’
8
See
DE Villiers para [37] and the authorities referred thereto
.