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[2012] ZALCJHB 99
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Mondlane v MEC: Mpumalanga Department of Education (J2039/10) [2012] ZALCJHB 99 (19 September 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J2039/10
In
the matter between:
JOHN
ROENING MONDLANE
............................................................................
Applicant
and
THE
MEC: MPUMALANGA DEPARTMENT
OF
EDUCATION
..............................................................................................
Respondent
Heard:
19 January 2012
Delivered:
19 September 2012
Summary:
Lawfulness of suspension of remuneration- section 14 Employment of
Educators Act.
______________________________________________________________________
JUDGMENT
VATALIDIS AJ
[1] This is an
application arising in terms of section 14(1)(a) of the Employment of
Educators Act 75 of 1998 (“the Educators
Act”).
Background
[2] The applicant seeks
an order declaring that the suspension of his remuneration in terms
of section 14(1)(a) of the Educators
Act is unlawful; that he be
reinstated to a position commensurate with his experience, taking
into account certain medical recommendations
and that he be awarded
back-pay proportional from the date on which his remuneration and
benefits were suspended.
[3] The state attorney,
acting on behalf of the respondent, filed its answering affidavit in
this matter on 30 November 2011, more
than one year after the
applicant filed its notice of motion and founding affidavit. The
respondent's answering affidavit was not
accompanied by an
application for condonation.
[4] On 13 December 2011,
the applicant filed a supplementary notice of motion seeking an order
striking out certain paragraphs in
the respondent's answering
affidavit.
[5] The applicant in an
affidavit accompanying the supplementary notice of motion raised the
point
in limine
that the respondent's answering affidavit had
been filed outside of the time periods contemplated in the rules of
this court and
had not been accompanied by an application for
condonation.
[6] The parties appeared
before this court on 13 December 2011. On that date, the state
attorney sought a postponement in order
to afford the respondent an
opportunity to file an application for condonation for the late
filing of its answering affidavit.
The respondent tendered the costs
of that postponement. This court agreed to postpone the matter until
19 January 2012, to afford
the respondent an opportunity to apply for
condonation for the late filing of its answering affidavit.
[7] On 19 January 2012,
the parties again appeared before this court. The respondent had
failed to file an application for condonation
for the late filing of
its answering affidavit. Consequently, the matter proceeded on an
unopposed basis.
[8]
The applicant, a teacher for almost thirty years, is employed as a
secondary school teacher
.
[9] On 17 July 2006,
while teaching at the Khumbula High School, the applicant was accused
by learners at that school of witchcraft
and of killing two learners
at the school. According to the applicant, his life was threatened
and the school principle advised
him to leave the premises
immediately for his own safety. The incident was reported by the
applicant to the South African Police
Services as well as his
supervisors at the respondent.
[10] In an undated letter
addressed by the applicant to the respondent and which appears on
page 18 of the bundle, the applicant
expresses the concern in the
manner in which the respondent's regional head is dealing with the
matter. The applicant indicates
a willingness to serve the respondent
but advised that he feared returning to the Khumbula High School.
[11] In a further letter
addressed by the applicant to the respondent’s head of
department dated 6 August 2007, which appears
on page 19 of the
bundle, the applicant requests that he be released from the school
level and be placed at a departmental level.
It is evident from this
letter that the matter remained unresolved more than a year after the
incident at the Khumbula High School.
[12] The respondent,
through the office of the circuit manager, addressed a letter dated
11 October 2006 to the applicant, a copy
of which appears on page 24
of the bundle. In this letter the circuit manager acknowledges having
reported the applicant's state
of health to the regional office. The
letter calls upon the applicant to submit leave forms together with a
doctor’s letter.
[13] On 20 October 2006
the circuit manager addressed a further letter to the applicant,
which appears on page 25 of the bundle.
According to this letter, on
13 October 2006, two days after requesting that the applicant
complete leave forms and provide a doctor's
letter, the circuit
manager was instructed to remove the applicant from the circuit
office, failing which the circuit manager was
to notify the police in
order to have the applicant removed from the circuit office.
[14] In a letter dated 23
October 2006 addressed by MC Mabunda Attorneys to the respondent,
which appears on page 22 of the bundle,
it appears that the
respondent instructed the applicant to return to the Khumbula High
School. In this letter the applicant records
that it would be unfair
for him to return to the school. The applicant's attorneys at the
time requested that the applicant be
redeployed to any departmental
post instead of returning to the Khumbula High School.
[15] The applicant also
appears to have completed an application form for temporary
incapacity leave. This application form has
also been completed by
the medical practitioner treating the applicant. In the medical
practitioner’s portion of the report,
the medical practitioner
recommends that the applicant can do anything ’except teaching
at some schools’.
[16] The applicant has
furnished this Court with a number of medical reports and statements
from doctors in respect of the period
August 2006 to May 2010. In the
report of TA Ginindza (clinical psychologist) (“Ginindza”)
dated 9 May 2007, the recommendation
is made that the applicant is
not psychologically fit to resume work. In the absence of an
immediate solution to the problem, the
report recommends that the
applicant be placed on light duty where his physical wellbeing would
not be threatened. A further report
by Ginindza dated 10 May 2007
confirms that the applicant is not 100% fit to return to a class room
situation.
[17] In a progress report
compiled by the Department of Health and Social Services Rob Ferreira
Hospital dated 28 May 2008, a clinical
psychologist notes that not
much has been done by the respondent to progress the applicant's
matter. The clinical psychologist
recommends that the respondent
convene a formal meeting with the applicant and that one person
should be assigned by the respondent
to deal with the applicant’s
concerns.
[18] According to the
applicant, after being instructed not to report to the circuit office
the applicant embarked upon several
courses of action to remedy his
situation including referring an unfair labour practice to the
Education Labour Relations Council
under case number PSES327/05-06MP
and referring an unfair dismissal dispute to this Court in June 2008
under case number JS360/08.
Educators Act
(the
“EEA”)
[19] In his capacity as
an educator at a public school, the applicant is subject to the EEA
1
.
Section 14 of the EEA states that–
‘
(1)
An educator appointed in a permanent capacity who–
(a)
is absent from work for a period exceeding 14 consecutive days
without permission of the employer;
(b)
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,l, unless the employer directs
otherwise, be deemed to have been discharged from
service on account
of misconduct, in the circumstances where–
(i)
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
(ii)
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.
(2)
If an educator who is deemed to have been discharged under paragraph
(a) or (b) of subsection (1) 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 re instatement
of
the educator in the educator's former post or in any post on such
conditions relating to the period of the educator's absence
from duty or otherwise as the
employer may determine.’
[20] It is trite law
2
that this Court has
jurisdiction to entertain matters involving section14 of the EEA and
that termination of employment in terms
of section14(1) of the EEA
does not amount to a dismissal as envisaged under section186 read
with section191 of the Labour Relations
Act (the LRA)
3
.
[21] Having regard to the
evidence placed before this Court, it would appear that following the
incident at the Khumbula High School
on 17 July 2006, the applicant,
with the consent of the respondent, reported to the respondent's
circuit office until the period
13October2006, when the applicant was
removed from the circuit office by the respondent. Having removed the
applicant from the
circuit office, the respondent addressed a letter
to the applicant dated 20 October 2006 informing him that if he did
not leave
the circuit office, policemen would be informed to have him
removed. Although it is not clear from the applicant's papers when
the applicant's remuneration was frozen, it would appear that the
applicant's remuneration was frozen around the time he was removed
from the circuit office on 13 October 2006.
[22] According to the
evidence before me, several medical certificates and reports relating
to the applicant's medical conditions
had been placed before the
respondent. According to these certificates and reports, the
applicant is in essence not medically fit
to return to a class room
environment.
Conclusion
[23] Although the
applicant has not reported for work since 13 October 2006, after
having been ordered to leave the circuit office
by the circuit
manager, the respondent has continued to engage with the applicant as
an employee as recently as May 2010. It is
apparent to this Court
that notwithstanding the provisions of section14(1) of the EEA, the
respondent has not dismissed the applicant
in terms of section14(1)
of the EEA but has frozen the applicant's remuneration, presumably as
a result of the applicant having
failed to return to the Khumbula
High School, despite the medical evidence placed before the
respondent that the applicant is not
medically in a position to
return to the Khumbula High School.
[24] Had the respondent
properly applied its mind to the medical certificates and reports
placed before it, it ought to have realised
that it would not have
been appropriate to compel the applicant to return to the Khumbula
High School. As such, the respondent's
decision to suspend the
applicant's remuneration was not appropriate in the circumstances.
[25] It is also apparent
to this Court that the applicant has made several efforts to resolve
the situation with the respondent
and that his efforts have all been
fruitless
[26] The applicant's
situation is clearly untenable and this Court is alarmed at the
respondent's inability to resolve the applicant's
situation which
arose in 2006. The respondent's failure to appear before this Court
to explain its conduct is a further indictment
on the respondent.
Order
[
27]
Accordingly, the following order is made:
27.1 the respondent is
ordered to immediately uplift the suspension of the applicant’s
remuneration and benefits;
27.2 the respondent is
ordered to pay the applicant the remuneration and the value of the
benefits the applicant would have received
had his remuneration not
been suspended by the respondent together with interest thereon;
27.3 the respondent is
ordered to appoint the applicant to a position within the respondent
which is commensurate with his experience,
taken into account the
medical certificates and reports already placed before the respondent
by the applicant; and
27.4 the respondent is to
pay the costs of these proceedings.
______________
Vatalidis AJ
Acting Judge of the
Labour Court
APPEARANCES:
FOR THE APPLICANT: W P
Meintjes of Billy Meintjes Attorneys
FOR THE RESPONDENT: NP
Yina
INSTRUCTED
BY: The State Attorney (Pretoria)
1
76
of 1998.
2
Mogola
and Another v Head of the Department: The Department of Education NO
[2012] 6 BLLR 584
para [28] (LC).
3
66 of 1995.