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[2011] ZALCPE 21
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Holdin v Member of the Executive Council, Department of Education and Another (P603/09) [2011] ZALCPE 21 (9 November 2011)
9
Reportable
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case No: P 603/09
In the matter between:
ANGRID ELIZABETH HOLDIN
.......................................................................
Applicant
and
THE MEMBER OF THE EXCECUTIVE
COUNCIL,
DEPARTMENT OF EDUCATION
......................................................
First
Respondent
THE DEPARTMENT OF EDUCATION:
EASTERN CAPE
..........................................................................
Second
Respondent
Heard: 23 August 2011
Delivered: 9 November 2011
Summary: Application to compel the
employer to conduct investigation – incapacity –ill-health
in terms of section 3
of Schedule 1 of Employment of Educators Act.
Payment of deduction effected after failure of the application for
temporary incapacity
leave.
JUDGMENT
MOLAHLEHI J
Introduction
The applicant in this matter seeks an
order in the following terms:
‘
1.1
Directing that the administrative action of the Department of
Education, Eastern Cape Province in failing to discharge its duties
in terms of Section 3 of Schedule 1 of the
Employment of Educators
Act 76 of 1998
.
1.2
In unilaterally or arbitrarily deducting
monies from the
Applicant’s emoluments, be judicially reviewed.’
The applicant further requires that
the respondents be directed as follows:
‘’
2.1
Take such steps as may be necessary in terms of
Section 3
of Schedule
1 of the
Employment of Educators Act 76 of 1998
, to investigate the
Applicant’s incapacity in terms of
Section 3
(1) thereof and to
comply with the provisions of sub-Section (3), (4), (5) and (6)
thereof.
2.2
Reinstate the Applicant’s emoluments deducted as aforesaid
3.
Directing that the Applicant may be exempted from the obligation of
exhausting internal remedies.
4.
Directing that the 180 day period referred to in Section 7 of the
Promotion of Administration of Justice Act be extended upon
such
terms as the above Honourable Court may
(deem fit), upon the basis
that the interests of justice so dictate.. .’
In essence, the applicant is seeking
to enforce what she refers to as, her constitutional rights, which
have been infringed by
the respondents because of the failure to,
‘discharge certain statutory duties set out in item Section 3
of Schedule 1
of the
Employment of Educators Act 76 of 1998
.’
The claim arises from the contention of the applicant that the
respondents ought to have taken steps to investigate her
incapacity
because of her health condition.
The applicant did not pursue her
contention that the respondents have failed to report her condition
to the Commissioner for Compensation
for Occupational Injuries,
Diseases in terms of
section 59
of the Compensation for Occupational
Injuries and Deceases Act (COIDA).
Background facts
The applicant, who has been in the
employ of the second respondent for 18 (eighteen) years testifies in
the founding affidavit
that the school at which she is employed by
the respondents has become dysfunctional due to the interference by
the school governing
body. At one stage, the members of the school
governing body locked the gates of the school for about two weeks,
preventing educators
from performing their duties. Thereafter, the
applicant together with other educators had to perform their duties
by reporting
at the district offices of the second respondent.
According to the applicant, the
school governing body closed the school because they complaint that
the educators were not doing
their jobs properly.
The tension at the school persisted
even after the school was reopened. In this respect, the applicant
refers to an incident where
two male teachers were involved in a
physical confrontation. Applicant says she broke down and had to be
referred to a hospital
for medical attention. She received medical
treatment. She further states that as a result of the chaotic
conditions at the school
she suffered from sleep “apnoea”
and was also diagnosed with bipolar mood disorder.
The other point made by the applicant
in the founding affidavit is that she is considering returning to
school to perform her
duties, but does not believe that she will
cope with teaching 40 children in a class room, particularly having
regard to the
low level of discipline at the school. The applicant,
attributes the alleged ill-discipline amongst learners at the school
to
the fact that they come from ‘low socio-economic homes’
and further that their parents, ‘for the most part, they
display a lack of interest or motivation for their children.’
In as far as her ill-health was
concerned, the applicant was apparently granted temporary incapacity
leave and on the expiry date
the applicant was required by the
respondents to obtain a second medical opinion regarding her
condition. In this respect, the
second respondent has required the
applicant who stays in Port Elizabeth to attend medical assessment
by Dr Erlacher who is based
in Grahamstown. The applicant has
refused to undergo the second medical assessment for two reasons.
The first reason is that
she does not understand why she should be
required to travel to snGrahams town when there are other medical
practitioners who
could perform the same function in Port Elizabeth.
The second reason is that she does not believe that Dr Erlacher will
provide
an objective assessment of her condition because she is not
independent, as he is employed by the state. In other words, she
does not believe that Dr Erlacher would produce a report favourable
to her because of his employment by the state. In this respect
of
the applicant says:
“
I
strongly believe that Dr Erlacher will have subjective and biased
view regarding my health and my medical condition due to the
effect
that he is being hired by the Department of Education
.”
It was for the above reason that the
applicant addressed a letter to the respondent listing a number of
other medical practitioners
in the Port Elizabeth area who she
believed, were competent and would be able to provide an independent
report on her medical
condition.
The principles governing incapacity of
educators
The procedure to be followed by the
employer when faced with incapacity of an educator due to ill-health
or injury is set out
in Schedule 1 of the
Employment of Educators
Act (the
EEA).
1
Item 3 of the Schedule 1 of the EEA
imposes a duty on the employer to conduct an investigation
concerning the extent of the ill-health
or injury that may have been
suffered by the educator. The conditions that triggers the
investigation are the following:
Poor performance arising from
ill-health or injury.
The employer forming the view that
the educator is unable to perform his or her duties due to
ill-health or injury or,
An application by the educator
indicating that he or she requires to be discharged from service due
to continuous ill-health or
injury.
An educator acquires the right to be
heard on all aspects related to the investigation upon the employer
taking the decision to
conduct an investigation related to
incapacity due to ill-health.
As part of the investigation, the
employer has in terms of
section 7
of the EEA, at the Sate’s
expense to examine the affected educator’s state of health.
The affected educator has the
right to nominate any other medical
practitioner to be involved in his or her ill-health examination.
The medical practitioner appointed by
the employer is obliged to submit a report to the employer on
completion of his or her ill-health
investigation indicating the
following:
the nature and extent of the
educator’s ill-health or injury and;
whether the ill-health is temporarily
or permanent.
The medical practitioner appointed by
the educator may submit a report to the employer, if the educator is
not satisfied with the
report of the medical practitioner appointed
by the employer.
The next stage in the process,
depending on what the medical report(s) submitted to the employer
says, is for the employer to:
determine whether the nature of the
ill-health or the injury is of a temporary or a permanent nature
and;
the period the employee is likely to
be away from work.
Having made the above determination,
the employer is to furnish the educator with a written report
indicating the results or the
findings of the investigation.
If the ill-health or injury of an
educator is of a permanent nature, the employer has to investigate
the following possibilities:
‘
(a)
Securing alternative employment for the educator;
(b)
Adapting the duties or work circumstances of the educator to
accommodate the educator’s ill-health or injury; or
(c)
Consider the termination of the educators service with effect from a
date determined by the employer.’
It would appear from the reading of
Schedule 1 of the EEA that failure or refusal by the educator to
submit to medical examination
at the state’s expense
constitute a misconduct for which the educator may be disciplined
for. If the employer decides to
discipline an employee for refusing
to undertake medical examination the general principles governing
the substantive and procedural
fairness of dealing with a
disciplinary hearing would apply.
The nature of the relief sought by
the applicant
Mr Kroon for the respondents
contended that the applicant is seeking an order against herself
because the consequence of the order
if granted is that she would
have to be dismissed. In other words this presupposes that the
investigation will lead to an automatic
dismissal. He submitted that
an individual cannot obtain an order against himself or herself. He
in this respect relied on the
case of
Thusi
v Minister of Home Affairs and Another and 71 Other Cases
2
where it was amongst others held that
:
‘
To
sue oneself is an oddity. To ask for and obtain relief against
oneself is unprecedented …’
It is apparent from the reading of
item 3(1) of Schedule 1 of the EEA that two possible scenarios may
flow from an employee’s
poor performance/or incapacity due to
ill-health or injury. The first scenario envisaged by sub-item (1)
arises where the employer
is of the view that the employee is unable
to perform his or her duties due to ill-health or injury. Having
formed that view
that the employee is unable to perform his or her
duties due to ill-health or injury the employer is obliged to
investigate the
extent of the injury. The second scenario arises in
an instance where the educator applies to be discharged from service
because
he or she believes that he or she is unable to perform the
job assigned due to ill-health or injury.
In both instances, the employer is in
terms of item 3(1) of Schedule 1 of the EEA obliged to investigate
the extent of the ill-health
or injury. The purpose of the
investigation is to determine whether the ill-health or injury is of
a temporary or permanent nature.
I see no reason why failure by the
employer to conduct an investigation as to the extent of the
ill-health or injury cannot found
a cause of action. In my view
Schedule 1 to the EEA provides a procedural right to educators faced
with incapacity to perform
their duties due to ill-health or injury.
In the first instance, the right to that procedure may arise where
the employer forms
a view that poor work performance of a particular
educator is due to ill-health or injury. And secondly it may arise
where the
employee has applied for discharge on the basis of
incapacity due to ill-health or injury. The fact that the ultimate
outcome
of the investigation (in particular if it is at the instance
of the educator) may be a dismissal does not detract from the duty
of the employer to conduct an investigation or take away the right
to require the employer to conduct the investigation envisaged
in
terms of item 3 of Schedule 1 of the EEA. It has to be noted that
the fact that the investigation may confirm the incapacity
due to
ill-health does not mean that dismissal is an automatic outcome.
Even in a case where the investigation confirms the ill-health
or
injury as being permanent, dismissal is not automatic. In that
instance, the employer has the duty in terms of item 3(6) to
investigate securing alternative employment which may include
amongst others a transfer which seems to be one of the desires
of
the applicant in the present case.
In the present instance, the
applicant seeks an order compelling the respondents to conduct an
investigation in terms of item
3(1) of the EEA. In other words, the
applicant is seeking a mandatory interdict or
mandamus
.
It is trite that in order to succeed in an application of this
nature, the applicant has to establish a clear right, an injury
actually committed or reasonably apprehended and the absence of
similar protection by any other ordinary remedy. See
Alliance
Cash and Carry (Pty) Ltd v Commissioner, South African Revenue
Service.
3
In my view theviewthe view, the
applicant in the present instance has failed to satisfy the
requirements for a mandatory interdict.
The respondents do refuse to
conduct the investigation envisaged under item 3(1) of Schedule 1 of
the EEA. The respondents have
in fact put the process in motion by
appointing a doctor in to conduct the investigation. It is the
applicant who refuses to
corporate by demanding that the state
doctor should be based in Port Elizabeth. The law is clear the
prerogative of choosing
a state doctor rests with the respondents
and does not have to do that in consultation with the applicant.
Thus the remedy of
the applicant lies in her cooperating with the
investigation by attending at Dr Erlacher’s surgery in
Grahams. The applicant
has no right to preempt the findings of Dr
Erlacher.
The remaining issue for determination
concerns the complaint concerning the deduction of R2000,00 from the
applicant’s salary.
This was not pursued in the submission on
behalf of the applicant. There was however no indication that it was
abandoned. This
issue turns on the agreement which was concluded
between the parties regarding the application for temporary
incapacity leave.
The temporary incapacity leave was conditional on
the outcome of the investigation into the ill-heath incapacity of
the applicant.
It was agreed between the parties that should the
application for the temporary incapacity leave fail then the
respondents had
two options, of either converting the thirty days
leave taken by the applicant in either annual leave or unpaid leave.
The application
for the temporary incapacity leave having been
unsuccessful, the respondents convert that leave as unpaid leave. In
addition,
the deduction was in my view also in line with the
provisions of section 38 of the Public Service Act
4
which entitles an employer in the
public service to deduct any amount paid to an employee for which
that employee was not entitled
to.
Accordingly, in light of the above,
the applicant’s application stands to fail in both instances
namely the claims of
mandamus
and compensation for the
deduction effected by the respondent. I do not however belief that
it would be fair to allow the costs
to follow the results.
Order
The applicant’s application is
dismissed with no order as to costs.
___________________
Molahlehi J
APPEARANCES:
FOR
THE APPLICANT: Adv W Grobler instructed by Kirchmanns Inc.
FOR
THE RESPONDENT: Adv P N Kroon instructed by Michael Randel Attorneys.
1
76
of 1998.
2
2011
(2) SA 561
(KZP).
3
2002
(1) SA 789
(T).
4
103
of 1994. Deductions from salaries are specifically dealt with under
section 38(2) which reads as follows:
“
(2) If an officer
or employee contemplated in subsection (1) has in respect of his or
her salary, including any portion of any
allowance or other
remuneration or any other benefit calculated on his or her basic
salary or scale of salary or awarded to him
or her by reason of his
or her basic salary—
(
a
) . . .
(
b
) been overpaid
or received any such other benefit not due to him or her—
(i) an amount equal to
the amount of the overpayment shall be recovered from him or her by
way of the deduction from his or her
salary of such installments as
the head
of department, with the
approval of the Treasury, may determine if he or she is in the
service of the State, or, if he or she
is not so in service, by way
of deduction from any moneys owing to him or her by the State, or by
way of legal proceedings, or
partly in the former manner and partly
in the latter manner.”