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[2011] ZALCPE 9
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Makade v Public Health & Social Development Sectoral Bargaining Council and Others (P36/2010) [2011] ZALCPE 9; (2012) 33 ILJ 408 (LC) (1 August 2011)
BONISILE
MAKADE v PUBLIC HEALTH & SOCIAL DEVELOPMENT SECTORAL BARGANING
COUNCIL JOHN
CHEERE
ROBERTSON DEPARTMENT OF HELATH,
EASTERN
CAPE Case No: P36/10. Review Application. Suspension for
insubordination.
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN PORT ELIZABETH
Case No: P36/2010
In the matter between:
BONISILE MAKADE
…..................................................................................
Applicant
AND
PUBLIC HEALTH & SOCIAL DEVELOPMENT
SECTORAL BARGANING COUNCIL
…............................................
1
st
Respondent
JOHN CHEERE ROBERTSON
….........................................................
2
nd
Respondent
DEPARTMENT OF HEALTH,
EASTERN CAPE
….................................................................................
3
rd
Respondent
JUDGMENT
CAWE AJ
Introduction
The instant application is to review and set aside the Ruling by the
Second Respondent, (the Commissioner) under case Number
PHSHS
489-07/08 dated 16
TH
November 2009.
Background Facts
The Applicant was previously a nurse. With effect from June 2000 he
was seconded to the office of the Member of the Executive
Council
for Health, (MEC) Eastern Cape Province. From 1 June 2001 he was
appointed and translated to the position of Deputy Director
which is
a post level 12 post. At the time of his secondment to the MEC in
2001 the Applicant had qualified and practised as
an attorney in
Umtata, Eastern Cape.
On the 14 April 2003 the MEC suspended the Applicant by letter. The
said letter was not specific as to why the Applicant was
being
suspended. It merely stated:
“
You are hereby advised that with effect
from 14
th
April 2003, you should take a leave of
absence pending the discussion on your future deployment in the
office of the MEC. You are
to report to this office on 22
nd
of April 2003 at 8h30.
According to the Applicant’s Heads of Argument (paragraph 4)
he was required to return his office keys and the Department’s
cellular phone.
The leave of absence was extended by the then Acting Superintendent
General until the matter was finalised or until further notice.
This
was done per letter dated 30 April 2003.
On the 21 August 2003 the Applicant received a charge sheet, setting
out that he was being charged with insubordination relating
to the
alleged incident of the 14 April 2003. The hearing was scheduled to
sit on the 28 August 2003.
On the 24
th
March 2004 the applicant received a letter to
the effect that the applicant’s suspension was uplifted and
the applicant
was deployed in a post of Middle Manager (Deputy
Director: Hospital Administration Victoria Hospital in Victoria
East. He did
not take up the offer at Victoria Hospital. The
Department seems to have relented on its offer to deploy the
Applicant to Victoria
East and offered him a post at SS Gida
Hospital as Middle Manager: Health.
In a letter dated 5
th
November 2004 the Applicant
challenged the Third Respondent’s offer of employment as an
attempt to impose on him what he
called:
“
unilaterally varied terms of employment
without even clearly defining my exact duties in the offered post.”
He went on (in the same latter) to
state that “
I therefore hereby
write to register my contemptuous rejection of your “final
offer” and write to you to further unilaterally
take a decision
you deem appropriate in furtherance of your noble mission.”
On 6 December 2004 the Applicant wrote a letter to the
Superintendent General, requesting to be placed in the post that he
occupied before his suspension. On that same day he reported for
duty.
The department refused to let the Applicant tender his services at
Bisho and instructed him to report to SS Gida Hospital Failing
which
he would be deemed to have absconded from work with effect from 8
December 2004.
The Applicant the referred the matter to the First Respondent
(PHWSBC), as an Unfair Labour Practice dispute, in 2005.
The matter was duly arbitrated and an award was issued by
Commissioner Pierre Naude. He recommended that the Applicant should
exhaust all the Department‘s internal remedies before re
–referring the matter to the PHWSBC. He also stated that
until
all the internal avenues had been exhausted by the Applicant the
PHWSBC had no jurisdiction to hear the matter.
The Applicant decided to refer the dispute to the PWHSBC again in
2007. This was after he had lodged a grievance internally.
The
matter was scheduled to be heard on the 7 June 2007 but the
employer’s representative did not attend and the Applicant’s
evidence was heard in default. The Applicant did not get a Ruling
from the Chairperson until he decided to refer the dispute
that
culminated in the Ruling presently under review.
After hearing evidence from both parties the Commissioner requested
that they address him on the effect of Section 17 (5) (a)
(i) of the
Public Service Act (PSA) of 1994 (Proclamation 103) (PSA),
alternatively Section 17(3) (A) (I) of the PSA as amended.
He then
made a Ruling that:
“
1.
The
employee (Mr Makade) was dismissed from the Public Service by
operation of law.
2. The PHSDSBC does not have jurisdiction to hear the employee’s
dispute as refereed.
3. The employee’s dispute referred under case reference PSHS
489-07/08 is dismissed.
4. There is no order as to costs.
5. Note: The parties agree that the period within which to bring
review proceedings will only run from the date of receipt of this
written Ruling.
His reasons for finding as he did were that by not reporting for
duty the Applicant had absconded. He then found the requirements
of
Section 17(5) (a) (i) are applicable. In paragraph 1-5 (pages 5) of
his award the Commissioner states the following:
“
I find the employee fell foul of S17 (5)
(a) (i) in this regard and notwithstanding:
His written challenges
Whether or not the employer acted correctly
The employer’s subsequent “final offer” to the
employee contained in a letter of 28 October 2004 and requiring
the
employee to report to SS Gida with effect from 8 November 2004
(this by way of a letter handed to the employee when he
attended on
the Director of Human Resource Management, Bhisho on 1 November
2004)
His employment with the Department of Health terminated by
operation of law.
The employee has argued with regard to the second incident that by
referring the mater to the Bargaining Council and in the light
of the
tender of his services in his prior post, the deeming provisions did
not come into effect.
This would be so but the employee would be required to report for
duty as instructed (wrongly or rightly by the employer) and then
to
pursue the matter either through the Bargaining Council or Labour
Court. The fact that the employee remained at his home and
wrote the
letter dated 6 November 2004 cannot amount to a proper tender of
services in that:
The employee ignores the instruction to report to SS Gida
He tenders his services in respect of his prior post(the gravamen
of his dispute and which should have been referred timeously while
rendering services as placed by the employer)
The employee did not physically report for duty as instructed.
In the circumstances I find that here to the deeming provisions of
S 17(5) (a) (i) would also be applicable.”
The Commissioner makes the comment (page 4 of the award) that:
“
I am not convinced that the employee’s
period of employment was linked to that to the MEC as:
No contract has been handed up
The Ministerial Handbook is a guideline
The provisions of the Ministerial Handbook at 14.1. (a)(ii).
I am satisfied however, that irrespective of whether the employer
acted correctly or not the employee’s official duties would
be
those to which he was instructed to attend to by the employer from
time to time.”
The question is “Is the Ruling reviewable?”. According
to the Applicant the issues to be determined
“
1. Whether the applicant’s leave
of absence or suspension was uplifted.
2. Was the applicant lawfully deployed or transferred to Victoria
Hospital or SS Gida Hospital as the Middle Manager Administration
or
Middle Manager Health.
3. (i) audi alteram partem
rule.
4. Whether the provisions of S175 (5) (a) applied;
4.1 (i) in what instances does it apply.
Regarding whether the Applicant’s leave of absence was
uplifted or not there can be no doubt that Applicant’s Counsel
misdirected himself when he argues that:
“
With respect it is submitted that the
third respondent if it had properly lifted the suspension should have
returned the applicant
to his previous place of employment without
conditions. “ Lift” in the South African Concise Oxford
Dictionary means:-
“…
formally remove or end.”
The fact that the third respondent decided to file the suspension
and deploy the applicant to a suitable post was not lifting the
suspension but was an act to offer a new post to the applicant.”
1
In my view there can be no doubt that the suspension was lifted. The
Applicant actually states in paragraph 35 of this Heads
of Argument
that he actually reported for duty at the office of the Director:
Human Resources. Had the Applicant not regarded
his suspension as
having been lifted he would not have reported for duty.
The Applicant rejected the offer of a transfer to SS Gida Hospital.
Does the transfer amount to the suspension not being lifted?
I am
not convinced that that is so. As far as I am concerned the
Applicant’s suspension was lifted but he decided to reject/
refuse his redeployment. This was a unilateral move by him. He
actually wrote a letter wherein he wished to
“
register my contemptuous rejection of
your “final offer” and write you to further unilaterally
take a decision you deem
appropriate in the furtherance of your noble
mission.”
2
The Third Respondent may have erroneously suspended the Applicant
but, there was clear “
bona fides”
on its part to
lift the suspension and have Applicant report for duty albeit in
another position. The Applicant could have challenged
his
redeployment while back at work. H elected to stay away.
Counsel for the Applicant argued that if there are no legislative
prescripts regulating deployment or transfer of employees then
employees have a right to refuse such deployment/transfer and
declare a dispute if the employer insists. Counsel, however, does
not cite his authority for such argument. I, therefore, find his
argument not persuasive to be a ground for review in the instant
matter.
It can not be said that the placing of the Applicant at SS Gida
Hospital was unlawful simply because his duties were not explained
to him as argued by his Counsel. No authority was given for this
argument by counsel.
Finally, the contention by Applicant’s Counsel is that the
Applicant did not abscond and that the issue was raised
mero motu
by the Arbitrator as opposed to the Third Respondent. This,
according to Counsel, means that section 17(5)(a) (i) of the Public
Service Act of 1994 (Proclamation 103) does not apply to the instant
case.
I beg to differ with the Applicant. Paragraph 38 of the Applicant’s
Heads of Argument reveals the opposite of what the
Applicant states
was raised by the Commissioner
mero motu.
The relevant
paragraph reads as follows:
“
It was only on the 6
th
December 2004 when the applicant
presented himself in Bhisho for purposes of offering his services to
the Department, that the applicant
was presented with a letter dated
12 November 2004, indicating that if he failed to report for duty in
the post of Midde (sic)
Manager: Health, a post offered to him,
without acceptable explanation, then he would be regarded as having
absconded with effect
from the 8
th
November 2004.
The preceding paragraph clearly indicates that the Third Respondent
had raised the issue of abscondment with the Applicant. By
the time
the Commissioner asked to be addressed on same the Applicant had
already been sensitized to it. That was back in 2009.
Five years had
elapsed with the Applicant not reporting for duty. There is no
evidence that he reacted to the warning, by the
Third Respondent,
that he would be deemed to have absconded if he did not return to
work. Within those five years he does not
seem to have been bothered
by the fact that the Third Respondent would invoke section 17 (5)
(a)(i) of the Public Service Act
of 1994.
I have taken note of the fact that the Applicant seeks to rely on
several cases in support of his case. These are:
“
Hospersa & Another v MEC for
Health (2003) 24 ILJ 2320(LC)
Phenithi v Minister of Education and Others
(2008) (1) SA 420
(SCA)
Director General, Office of the Premier of the Western Cape &
Another v South African Medical Association obo Broens &
others
(2001) JOL 26974
(LC).”
I will not even attempt to distinguish these from the instant cases
as they relate to totally different issues. The Applicant
has merely
enumerated them and stated what was held therein without applying
them to his case.
Conclusion
The decision of the Arbitrator was well reasoned. I find that it is
not so unreasonable that no other arbitrator could have come
to the
same decision. I, therefore, find no reason to interfere with the
award.
In the premises I make the following Order:
The Application is dismissed.
I make no order as to costs
________________________
CAWE AJ
Appearances
For the Applicant: Adv. Nyangiwe
Instructed by: B Makadie Incororated
For the Respondent: Adv. Simoyi
Instructed by: the State Attorney
Date of Hearing: 17 May 2011
Date of Judgement: August 2011
1
Page
10 of Applicant’s Heads of Argument.
2
Page
48 of indexed bundle