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[2011] ZALCD 51
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NEHAWU and Another v McGladdery NO and Others (D137/2010) [2011] ZALCD 51 (1 November 2011)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Of
interest to other judges
CASE
no. D 137/2010
In
the matter between:
NEHAWU First
Applicant
PT
MAPHANGA Second
Applicant
and
S
McGLADDERY
N.O First
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL Second
Respondent
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT Third
Respondent
Date of Hearing:
1
September 2011
Date
of Judgment:
November 2011
JUDGMENT
REDDY
AJ
Introduction
[1] This
is an application to review and set aside a ruling issued by the
First Respondent under the auspices of
the Second Respondent. It is
also an application to review and set aside the deemed discharge of
the Applicant from the public
service on 1 October 2008. The Order
prayed for reads as follows:
‘
1. (a). The
conduct of the Third Respondent in deeming to discharge the
Applicant
in terms of section 17(5) of the Public Service Act is reviewed and
set aside,
(b) The
Third Respondent is ordered to reinstate the Applicant with back pay
effective from 1 October 2008;
and or alternatively;
2. That
the jurisdictional ruling under case number GPBC 615/09, made by the
First Respondent
is reviewed and set aside and replaced by the
following orders:
(a)
that
the Second Respondent has jurisdiction to hear the application
brought by the Applicant under case number GPBC 615/09;
(b) that
the deemed discharge of the Applicant by the Third Respondent
constituted a dismissal for misconduct
in terms of the
Labour
Relations Act 66 of 1995
as opposed to termination by operation of
law;
(c)
Alternatively,
that the matter is referred back for a hearing afresh before another
commissioner under the auspices of the Second
Respondent.
3. The
costs of this application are to be paid by those Respondents who
oppose it.’
[2] The
application is opposed by the Third Respondent (“the
employer”).
Factual
Background
[3] The
factual background is long and detailed. It is not necessary for me
to decide any of the factual issues
as this matter turns on points of
law. However, for the sake of completeness the facts are summarised
hereunder. The Second Applicant
(“the employee”) was
employed as a senior interpreter at the Umlazi Magistrate’s
Court as at the date of discharge
from service. The employee
commenced employment with the employer on 20 February 1980.
[4] The
employee had been absent from work for a period of five months from
21 July 2008 to 19 December 2008. It
is alleged by the employee that
she had sent medical certificates to the employer for the period of
her absence. This is disputed
by the employer.
[5] The
employer submitted that the submission of medical certificates was
not the proper procedure for obtaining
authorisation for leave of
absence; the employee had not filled in the requisite leave forms and
that the absence was not authorised
and that she was absent without
permission.
[6] The
medical certificates attached to the founding affidavit are dated:
1. 10
September 2008 (for a fractured ankle and where she is recorded as
being unfit for duty
from 8 September 2008 to 30 September 2008);
2. 1
October 2008 (for a fractured ankle and where she is recorded as not
being fit for duty
from 1 to 13 October 2008)
3. 20
October 2008 (for a fractured ankle);
4. 22
October 2008 (for a fractured ankle and she is recorded as not being
fit for duty from
20 to 24 October 2008 but could assume light duties
on 27 October 2008);
5. 7
November 2008 (for a fractured ankle and chronic vital myalgia where
she is recorded as
not being fit for duty from 21 July 2008).
6. 15
December 2008 (for a fractured ankle and chronic vital myalgia where
sick leave was recommended
from 21 July 2008 to 19 December 2008).
[7] The
employer, through its area court manager, Mrs Pienaar (Pienaar)
addressed a detailed letter dated 3 November
2008 to the employee. In
this letter (the historical letter) the employer informed her that:
1. She
had been absent from duty for various dates since 26 November 2007 to
3 November 2008
and such absences were without permission.
2. Her
last leave form was dated 4 July 2008 and since then she had not
applied for or was granted
leave from duty.
3. She
had not submitted leave forms for the various dates of absence from 7
July 2008 to 3 November
2008.
4. Her
supervisor, Mr Zondi, (Zondi) advised that she had been absent from
duty from December
2007 to May 2008. That the employee worked for 11
days in July 2008 and that she did not work in August, September and
October
2008.
5. Zondi
tried calling the employee on her cell phone on 15 and 16 September
2008. Her phone
was not answered. He tried again on 29 September 2008
and was informed by a person called Sibongile that the employee was
at a
funeral. The employee returned Zondi’s call and agreed to
report for duty the next day. The employee did not report for duty
as
agreed.
6. Zondi
then arranged a meeting with the employee on 2 October 2008 which she
did not attend.
The employee did not provide any explanation for her
non-attendance.
7. On
3 October 2008, Zondi sent a letter to the employee inviting her to
the office on 6 October
2008. She did not attend the office. No
explanation was provided by the employee.
8. As
the employee’s vacation and sick leave were exhausted, she had
to apply for incapacity
leave. The forms were sent to her home on 8
October 2008 but nobody was at the employee’s home to receive
the forms.
9. The
forms were again sent on 9 October 2008. The messenger who was to
deliver the forms was
informed by the employee’s boyfriend that
she had gone to Medical Towers. The boyfriend called the employee and
she advised
that she would attend her office before returning home
that day, which she did.
10. At
a meeting attended by the employee, Zondi and Pienaar, it was agreed
that the employee would complete
the forms and submit them by 16
October 2008.
11. Despite
taking the forms, the employee did not submit them and on 20 October
2008 informed the employer
that she was to undergo an operation on 21
October 2008. As her doctor was at a conference she could not submit
the forms. Since
20 October 2008 the employer had not heard from the
employee.
12. The
employee was instructed to report for duty on 7 November 2008,
failing which disciplinary action
would be taken against the
employee.
[8] A
significant portion of the historical letter is disputed by the
employee. Item 10 of the above summary is,
however, common cause.
[9] The
employee submits that she had the required incapacity leave form
ready for submission on 22 December 2008.
However before she could
submit it, she received on 17 December 2008 a letter dated 15
December 2008 from the employer. This letter
(the termination letter)
advised her that;
1. The
employee was absent from work for more than one month.
2. She
was deemed to be discharged from service. The discharge was in terms
of section 17(5)(a)(i)
of the Public Service Act 1994 (the Act) and
the discharge was effective from 1 October 2008.
3. Should
she wish to be reinstated in terms of section 17(5)(b) of the Act,
she would have to
make written representations to Pienaar by 5
January 2009.
4. The
request for reinstatement would be forwarded to the Minister of
Justice and Constitutional
Development for consideration.
[10] On
seeing her doctor on 15 December 2008, she was recorded as being fit
to resume duty on 20 December 2008,
however 20th December 2008
was a Saturday and she did not work on Saturdays. The employee
reported for duty on Monday 22 December
2008 where she was informed
that her services were no longer required.
[11] The
employee submitted written representations for reinstatement on 31
December 2008. In her representations,
the employee submitted that
she had informed Zondi that she had been diagnosed in July 2008 with
a fractured ankle and chronic
vital myalgia. She was pronounced not
‘fit for duty’ from 21 July 2008 to an unspecified date.
Although it is recorded
that the medical certificate and the leave
form are attached to the representations, they were not placed before
this Court. The
only form attached to the pleadings is that for
temporary incapacity leave which was signed by the employee on 7
November 2008.
[12] The
employee also submitted in her representations that she was given the
incorrect leave forms and when the
correct forms were given to her
she handed them to her doctor to complete. It is not clear to this
Court what those incorrect leave
forms were and which periods they
covered as they are not annexed to the papers.
[13] She
also recorded that the final medical certificate from her doctor
covered the period from 21 July 2008
to 19 December 2008.
[14] She
did not receive a response to the representations for reinstatement.
The First Applicant (“the union”)
then wrote a letter
dated 2 June 2009 requesting a meeting to present the employee’s
case.
[15] A
follow up letter dated 19 June 2009 was sent to the employer by the
union, informing it that should it not
respond within seven days, it
would declare an unfair dismissal dispute to be lodged with the
second respondent (“the bargaining
council”).
[16] On
9 July 2009, the employee referred an unfair dismissal dispute to the
bargaining council.
[17] The
Minister of Justice and Constitutional Development issued a letter
dated 31 July 2009 noting receipt of
the letter dated 2 June 2009 and
informing the union that that letter was being dealt with by the
human resources branch of the
national office.
[18] The
dispute was conciliated telephonically on 11 September 2009 and a
certificate was issued. The matter was
referred to arbitration on 22
September 2009.
[19] The
arbitration hearing was held on 9 December 2009 where the employer
raised a
point in limine
that the bargaining council did not
have jurisdiction to hear the dismissal as the termination was by
operation of law.
[20] The
employee submitted to the commissioner that she was challenging the
termination by operation of law. The
employee further submitted that
section 17(5) had been repealed as at the date of her dismissal and
she could only be dismissed
in terms of section 17(3) which required
the dismissal to be in terms of the LRA. She submitted that she was
entitled to be heard
before being dismissed and the failure of the
employer to hold a hearing rendered the dismissal unfair.
[21] A
ruling dated 29 December 2009 was issued by the First Respondent
(“the commissioner”) to the
effect that the bargaining
council did not have jurisdiction to hear the matter as the
termination came about by operation of law
as opposed to the employer
exercising its discretion and electing to dismiss the employee. The
commissioner held that the termination
was a deemed dismissal in
terms of section 17(3) of the PSA.
[22] The
employee lodged this review application in February 2010.
[23] In
a letter dated 23 June 2011, the employer informed the employee that
her application for reinstatement
was not approved.
The
review application
The
ruling by the commissioner
[24] The
review application in respect of the ruling by the commissioner is
premised on the ground that the commissioner
erred in concluding that
the termination was by operation of law. The employee submits that
she was unfairly dismissed, the LRA
applies and the bargaining
council therefore has jurisdiction to hear the dispute.
[25] The
Phenithi
case
(
Phenithi
v Minister of Education and O
ther
[1]
s
[2006] 9 BLLR 821
(SCA) held that terminations by employers by
operation of law are not decisions by employers and are not
reviewable actions. In
other words, employers do not exercise any
discretion whatsoever when terminating employment through statutory
provisions like
the old section 17 (5) or the current section 17 (3).
Other cases have held that, when deciding whether to reinstate the
employee
on good cause the employer exercises a discretion. This
decision constitutes administrative action. The exercise of the
discretion
when deciding whether good cause has been shown is a
discretionary matter and such decision may be reviewable in terms of
section
158 (1)(h) of the LRA. [See
Grootboom
v National Prosecuting Authority and Another,
[2]
Mahlangu
v Minister of Sport and Recreation
(2010) 31 ILJ 1907 LC and
De
Villiers v Head of Department: Education, Western Cape Province
(2010)
31 ILJ 1377 (LC)].
[26] I
will not deal here with the differences between the repealed section
17(5) and the current section 17(3)
save to state that I accept that
they are of the same import. For this reason the cases referred to
above are significant and are
applicable to the facts before me.
[27] From
the above cases, it is clear that there is a two stage process
present in terminations by operation of
law in the public sector. The
first stage is where the employer effects a termination where the
employee has been absent without
authorisation for more than one
calendar month. There is no dismissal of the employee and the rights
to a hearing prior to the
dismissal do not apply.
[28] The
second stage is where the employee makes an application to be
reinstated on good cause shown. At this
stage the employer exercises
a discretion in deciding whether good cause has been shown and
whether the employee should be reinstated.
Good cause may include
grounds such as the employee was not absent for more than one
calendar month or that the employee did in
fact obtain authorisation
for the absence or that the employee was not in a position to make
the necessary application for leave
prior to being absent without
leave and where the absence is for a good reason, for example if the
employee was in critical care
in hospital and not physically or
mentally able to make the application. Clearly the grounds are not
limited to these examples
cited here.
[29] If
these grounds exist, the employee would have to record them in her
application to be reinstated. If the
employer does not properly
consider these grounds or ignores them and refuses the application
for reinstatement, then that decision
not to reinstate her may be
reviewable.
[30] At
the time that the
point in limine
was argued before the
commissioner, the decision in respect of reinstatement was not issued
by the employer. The only issue before
the commissioner was whether
the termination was by operation of law or a dismissal in terms of
the LRA. Molahlehi J in the
Grootboom
case (at paragraphs 38
to 41) held that the termination by operation of law does not covert
into a dismissal, it remains a termination
by operation of law. The
employee has a remedy in her being able to challenge the
non-reinstatement by way of a review application
in this Court.
[31] The
employee also submits that the commissioner ought to have determined
whether the employee was absent for
more than one calendar month when
the termination was effected. From a reading of the transcribed hand
written notes and the ruling
of the commissioner it is clear that
this issue was not raised during the hearing. There was no need for
the commissioner to consider
this issue as it was not raised as an
issue in dispute.
[32] Further,
this issue is so important that it goes to the nub of the issue
whether the dismissal was by operation
of law or an unfair dismissal.
Had it been raised, evidence would have had to have been placed
before the commissioner not only
on whether one calendar month had
passed as at the date of termination, but also whether the employee
had the required approved
leave for the other months (given her
submission that she was absent from duty from July to December 2008)
and whether the necessary
medical certificates had been received by
the employer. However as the employee had not raised this issue as an
issue in dispute,
the commissioner correctly decided the
point in
limine
on the basis that the absence for more than one month was
common cause or not in dispute. There was therefore no avenue
available
to the commissioner to make a finding that it was not a
termination by operation of law and that the bargaining council in
those
circumstances had jurisdiction to hear the matter. The
employee, not having raised this issue before the commissioner,
accordingly
cannot rely on this ground in its review application.
[33] In
the premises I find that the decision by the commissioner is a
decision that a reasonable commissioner
would have made. I see no
reason to interfere with that decision.
The
deemed discharge by the employer
[34] The
review in respect of the employer’s termination by operation of
law is premised on the ground that
the discharge occurred in terms of
a non-existent section of the Act.
Section
17 (3) of the Act provides:
‘
17 Termination
of employment
(3) (a) (i) An employee,
other than a member of the services or an educator or a member of the
Intelligence Services, 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 dismissed 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.
(ii) If
such an employee assumes other employment, he or she shall be deemed
to have been dismissed
as aforesaid irrespective of whether the said
period has expired or not.
(b) If
an employee who is deemed to have been so dismissed, reports for duty
at any time after the
expiry of the period referred to in paragraph
(a), the relevant executive authority may, on good cause shown and
notwithstanding
anything to the contrary contained in any law,
approve the reinstatement of that employee 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 other
conditions as the said authority may determine.’
[35] The
employee submits that the old section 17 (5) in terms of which she
was dismissed did not apply as at the
date of her dismissal as it was
repealed and replaced by section 17(3) above.
[36] The
relevant portions of the repealed section 17 (5) provided as follows:
‘
(5)(a)(i) An
officer, other than a member of the services or an educator or the
Agency or 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 dismissed from the public service on account
of misconduct with
effect from a date immediately succeeding his or
her last day of attendance at his or her place of duty.
(ii) If
such an officer assumes other employment he or she shall be deemed to
have been dismissed as aforesaid
irrespective of whether the said
period has expired or not.
(b) 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 other
conditions as the said authority may determine.'
[37] As
can be seen from the above quoted sections 17(3) and 17(5) the only
differences are that the words “officer”
and “discharged”
are replaced with the words “employee” and “dismissed”
respectively. Apart
from clarifying that the deemed discharge is a
dismissal, the new section 17 (3) carries the same meaning and
intention of the
old section 17 (5).
[38] The
intention of the two sections remain the same – that is if an
employee is absent from duty without
permission from the employer for
more than one calendar month the employee shall be deemed to be
dismissed from duty. The employee
may be reinstated on good cause
shown. It has been accepted by this Court that the two sections have
the same application [See
Public Servants Association of SA obo
Van der Walt v Minister of Public Enterprises and Another
(2010)
31 ILJ 420 (LC)].
[39] The
employee submitted that any dismissal contemplated in terms of
section 17(3) had to comply with the LRA
as section 17(1) provides
that the power to dismiss shall be exercised in accordance with the
LRA.
[40] I
disagree with this submission. The reference to a hearing in terms of
the LRA is limited to those instances
in terms of section 17 (1) and
(2) where an employee may be dismissed for incapacity due to ill
health or injury or poor work performance;
operational requirements
or misconduct. To my mind, these forms of dismissal are distinct from
terminations by operation of law
as recorded in section 17 (3).
[41] The
employee submits further that the employer had informed the employee
that she would be subjected to a
disciplinary hearing prior to
dismissing her but it had changed its mind. There is no evidence of
any steps take by the employer
to hold a disciplinary hearing. I find
that the employer could elect between the two avenues and opted to
carry out a statutory
termination.
[42] I
therefore do not find that there was an onus on the employer to hold
a hearing prior to terminating the
relationship by operation of law.
[43] Further,
this Court’s power is limited to reviewing the decision of the
employer not to reinstate the
employee. The findings of Molahlehi J
in the
Grootboom
matter are apposite insofar as the employer’s
discretion is concerned. At paragraph 56 thereof that Court held:
‘
It is clear in my
view that the requirement of good cause in terms of s 17(5)(b) of the
PSA entails the employee having to provide
a reasonable explanation
for his or her absence without authority. The duty is thus on the
employee to provide the employer with
a satisfactory explanation as
to what were the reasons for being absent without authorization. The
employer in considering whether
or not to reinstate the employee has
to exercise a discretion given by s 17(5)(b) of the PSA. In this
respect the decision by the
employer has to be influenced by fairness
and justice. In other words, the employer does not have an unfettered
discretion in determining
whether or not to reinstate the employee.
The functionary responsible for considering whether or not to
reinstate the employee
has to apply his or her mind to the submission
made by the employee for the decision to be said to be reasonable and
lawful. The
key factor amongst others, which the employer has to take
into account, is whether or not the unauthorized absence was wilful
on
the part of the employee. ’
[44] There
are no submissions before me in support of a review of the decision
not to reinstate the employee. Had
these submissions been made I
would have had to apply the test in the Grootboom matter (recorded in
paragraph 43 above) to determine
if the discretion exercised in not
reinstating the employee was properly exercised. The employee’s
relief is limited to reviewing
the conduct of the employer in
terminating her services. As referred to earlier, the termination by
operation of law is the first
stage of the process. This Court does
not have the power to review the termination as the employer does not
exercise any discretion
in so doing.
[45] As
the employee has not made out a case to support the review of the
decision not to reinstate her, the employee
is not entitled to the
relief prayed for.
[46] I
accordingly make the following order:
1. The
application is dismissed with costs.
Reddy
AJ
APPEARANCES:
1. FOR
THE APPLICANTS: Mr
Myeza of NEHAWU
2. FOR
THE THIRD RESPONDENT: Ms Pungula instructed by
the State Attorney.
[1]
[2006]
9 BLLR 821 (SCA).
[2]
(2010) 31 ILJ 1875 (LC).