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[2012] ZALCCT 35
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Weder v MEC for Health, Western Cape (C 993/11) [2012] ZALCCT 35; [2013] 1 BLLR 94 (LC); (2013) 34 ILJ 1315 (LC) (5 September 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Of
interest to other judges
case
no: C 993/11
In the matter between:
M T WEDER
Applicant
and
MEC FOR THE DEPARTMENT OF HEALTH, WESTERN CAPE
Respondent
Heard
:
29 August 2012
Delivered
:
5 September 2012
Summary:
Legality review i.t.o. LRA s 158(1)(h). Refusal to
reinstate employee in terms of s 17(3) of Public Service Act, 1994.
JUDGMENT
STEENKAMP J
Introduction
The applicant was deemed to be discharged from his employment in
terms of s 17(3)(a)(i) of the Public Service Act, 1994 (“the
Act”).
1
The applicant’s trade union then made representations for his
reinstatement in terms of s 17(3)(b) of the Act. The respondent,
the
Member of the Executive Council (being the relevant executive
authority) refused the application for reinstatement. The applicant
seeks to have that decision reviewed and set aside in terms of s
158(1)(h) of the Labour Relations Act (“the LRA”).
2
Condonation
Before I turn to the merits of the application, the Court has to
consider three applications for condonation. The review application
itself is arguably out of time; so are the answering and replying
affidavits.
The review application and founding affidavit
The application for review was brought in terms of section 158(1)(h)
of the LRA. That section does not prescribe a time limit
for the
filing of the application, in contradistinction to s 145(1)(a) that
prescribes a time limit of six weeks from the date
that the award
was served on the applicant.
The applicant initially based his calculation on the applicable time
limits on the Promotion of Administrative Justice Act (PAJA)
3
.
In terms of PAJA
4
,
an applicant must bring a review application within 180 days. But,
as I shall discuss more fully below, since the judgment of
the
Constitutional Court in
Chirwa
5
and
Gcaba
6
,
it seems clear that PAJA does not apply to review applications
under the LRA. This principle was foreshadowed in
Sidumo
7
,
where Navsa AJ held that PAJA does not apply to arbitration
awards in terms of s 145 of the LRA. It seems clear to me that the
time period provided for in PAJA, therefore, does not apply to
review applications in terms of s 158.
The application therefore had to be brought within a ‘reasonable
time’. In
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit
van Kaapstad
8
the court pointed out that:
“
In die
afwesigheid van enige spesifieke tydsbepaling het ons Howe gedurende
die afgelope 70 jaar herhaaldelik daarop gewys dat die
verrigtinge
binne redelike tyd ingestel moet word.”
And:
9
“
Dit is
wenslik en van belang dat finaliteit in verband met geregtelike en
administratiewe handelinge binne redelike tyd bereik word.
Dit kan
teen die regspleging en die openbare belang strek om toe te laat dat
sodanige beslissings of handelinge na tydsverloop
van onredelike lang
duur tersyde gestel word –
interest
reipublicae ut sit finis litium ....
Oorwegings
van hierdie aard vorm ongetwyfeld ‘n deel van die onderliggende
redes vir die bestaan van die reël.”
This principle has been reiterated in a post-Constitutional
dispensation – for example by Nugent JA in
Gqwetha v
Transkei Development Corporation Ltd and Others:
10
“
It is
important for the efficient functioning of public bodies ... that a
challenge to the validity of their decisions by proceedings
for
judicial review should be initiated without undue delay. The
rationale for that longstanding rule ... is twofold: First, the
failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, and in my view more
importantly,
there is a public interest element in the finality of
administrative decisions and the exercise of administrative
functions.”
What, then, is a ‘reasonable time’ in the context of s
158 of the LRA? It is tempting simply to assume that it should
be
six weeks, by analogy to the time period provided for in s 145. At
the most, it cannot be more than the 180 days provided
for in PAJA;
in fact, given that PAJA does not apply and that the process is
closely aligned to that set out in s 145 and rule
7A, I would
suggest that anything more than six weeks should at least trigger an
application for condonation.
In the case before the Court, the decision by the MEC not to
reinstate the applicant was made on 31 May 2011.
11
The applicant delivered the application for review on 9 December
2011, about six months and 9 days later – in other words,
about 9 days outside of the PAJA time limit and more than four
months outside the six-week time period that would have applied
in a
s 145 review.
The delay appears, on the face of it, to be lengthy. The extent of
the delay must be considered together with the other factors
outlined in
Melane v Santam Insurance Co Ltd
12
and subsequent authorities.
The reason for the delay is quite simple: The applicant, advised at
that stage by his trade union and not his current attorneys,
referred a dispute to the Bargaining Council and not to the Labour
Court. He did so within the prescribed time period. The Bargaining
Council apparently decided on 29 September 2011 that it had no
jurisdiction. The applicant received that ruling on 28 October
2011.
He then referred a dispute to this Court within six weeks.
The explanation for the delay is compelling. The applicant took
reasonable steps to refer the dispute timeously, albeit initially
to
the wrong forum. I do not consider the extent of the delay, coupled
with the reasons therefor, to be so unreasonable that
the applicant
should be deprived of a hearing. The application for condonation is
granted.
The answering and replying affidavits
The answering affidavit was filed some 15 days out of time and the
replying affidavit 10 days late. Neither party opposed the
other’s
application for condonation in this regard. Neither party was
prejudiced. I deemed it to be in the interests of
justice to grant
condonation in both these applications.
Background facts
The applicant was employed as a nursing assistant at Valkenburg
Hospital, dealing with patients with psychiatric problems. He
was
diagnosed with schizophrenia more than ten years ago. However, the
circumstances leading to his deemed discharge in this
case stemmed
from a different illness. In December 2009 he was diagnosed with
pulmonary tuberculosis. He was placed on sick leave
from 29 December
2009 until 1 March 2010.
It appears that the applicant informed his employer on two occasions
that he was on sick leave. He says under oath that he spoke
to a
sister Busi and a Mr Simang per telephone on 26 January and 5
February 2010. The deponent to the MEC’s answering affidavit,
Faizel Rodriques
13
,
denies this; however, he has no personal knowledge of the alleged
telephone conversations and neither Busi nor Msimang filed
answering
or confirmatory affidavits. In these circumstances the evidence of
the applicant must be accepted and the respondent’s
version –
which is based on uncorroborated hearsay -- disregarded, despite the
normal rule in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd.
14
In any event, it is common cause that the applicant informed the
employer’s area manager, Ms Isaacs, of the reason for
his
absence on 4 January 2010.
On 11 February 2010 the Senior Medical Superintendent of the
Department of Health informed the applicant that his service had
been terminated as from 20 January 2010. The letter stated that he
had been absent without permission for more than a calendar
month;
and that, therefore, he was deemed to be discharged in terms of s
17(3)(a)(i) read with s 17(2)(d) of the Act.
Almost a year later, on 8 February 2011, the applicant’s trade
union made representations on his behalf, calling for his
reinstatement in terms of section 17(3)(b) of the Act. The union
included the medical certificates showing that the applicant
had
been booked off for pulmonary tuberculosis during the relevant time
of absence, even though it mistakenly referred to his
schizophrenia
in the covering letter. The fact remains that it is common cause
that the applicant had been booked off as a result
of illness.
The MEC did not take issue with the long delay. On 31 May 2011 he
wrote to the applicant in the following terms:
“
I,
having considered the evidence presented to me with regards [
sic
]
to your deemed dismissal, find that the grounds for your appeal does
[
sic
]
not justify your reinstatement.
I therefore confirm that your
deemed dismissal in terms of section 17(3)(a)(i) of the Public
Service Amendment Act.” [
sic
]
The MEC did not give reasons for his decision – neither at the
time, nor when the applicant called upon him to do so in
the notice
of motion.
Analysis
The provisions of the Public Service Act
The relevant subsection of the Act reads as follows:
“
(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.”
The purpose of the application is to review and set aside the MEC’s
decision not to reinstate the applicant in terms of
section 17(3)(b)
of the Act, and not the initial discharge in terms of section
17(3)(a).
Legality review in terms of s 158 of the LRA
The applicant is brought in terms of s 15(1)(h) of the LRA. That
section empowers this Court to review any decision taken by
the
State in its capacity as employer, on such grounds as are
permissible in law.
In the applicant’s heads of argument his counsel sought to
argue, firstly, that the decision to refuse reinstatement in
terms
of s 17(3(b) constitutes administrative action and is reviewable in
terms of PAJA.
Given recent judicial precedent, that argument cannot be upheld. As
I pointed out above, the Constitutional Court decided in
Chirwa
15
and
Gcaba
16
that the dismissal of a public servant is not an ‘administrative
act’ as defined in PAJA and therefore not reviewable
in terms
of PAJA. That view was recently reiterated by the Labour Appeal
Court in
PSA obo De Bruyn v Minister of Safety & Security.
17
But that is not the only possible statutory basis for the review.
The application is brought in terms of s 158(1)(h) of the LRA.
In
De
Bruyn
18
the Court sounded a cautionary note. It stated that this Court will
not entertain an application to review ‘any act performed
by
the State in its capacity as employer’ in terms of s 158(1)(h)
of the LRA as a matter of course.
Nevertheless, having had regard to the judgments of this Court in
De
Villiers
19
and
Harri
20
,
the Labour Appeal Court did not overturn the effect of those
judgments. It merely pointed out that not all review applications in
terms of s 158(1)(h) will be entertained and that, in certain cases,
the LRA may oust the jurisdiction of the Labour Court; for
example,
where the LRA requires that a dispute be resolved through
arbitration in terms of s 157(5) or a binding collective agreement.
In the case before me, the applicant did attempt to refer the
dispute to arbitration. The Bargaining Council held that it did
not
have jurisdiction, hence the referral to this Court. I am satisfied
that this is a case where the Court does have jurisdiction
to
entertain the matter in terms of s 158(1)(h).
In
Harri
21
,
this Court expressed the following view:
“
The
Constitutional Court has thus put it beyond dispute in
Chirwa
and
Gcaba
that the dismissal of a public service employee does not constitute
administrative action. Why, then, should the state as employer
be
able to review a decision by its own functionary in this case?
The distinction appears to me to
lie in the fact that, in this case, the state is acting
qua
employer; and the functionary is fulfilling his or her duties in
terms of legislation.”
That review appears to me to remain unchanged by the decision in
De
Bruyn.
In
De Villiers,
Van Niekerk J came to the conclusion that s
158(1)(h) applied in the case of a refusal to reinstate an employee
in a case very
similar to the current one, except that, in
De
Villiers
, he dealt with the similarly worded provisions in s 14
of the Employment of Educators Act
22
and not s 17 of the Public Service Act. And, as he pointed out:
23
“
Even
if the decision not to reinstate the applicant did not constitute
administrative action, this court retains review jurisdiction
on the
grounds of legality (at least), which incorporates most, if not all,
of the grounds of review relied upon by applicant in
his founding
affidavit. These would certainly require that functionaries exercise
public power in a manner that is not irrational
or arbitrary, and
that they be accountable for the manner in which that power is
exercised.”
Referring to the requirement of ‘good cause’ is s 14 of
the Employment of Educators Act – similarly worded
to the same
requirement in s 17(3)(b) of the Public Service Act – Van
Niekerk J concluded:
24
“
This
would ordinarily mean that unless the employer, having regard to the
full conspectus of relevant facts and circumstances, is
satisfied
that a continued employment relationship has been rendered
intolerable by the employee’s conduct, the employer
should as a
general rule approve the reinstatement of the employee.”
It is against this legal background that the review application must
be considered.
Grounds of review
The applicant has raised the following grounds of review:
The MEC has altogether failed to appreciate the nature of the
enquiry before him. Although he provided no reasons for his
decision, it is plain that he did not have regard to the legal test
set out in
De Villiers
(ie whether the employee’s
conduct had rendered a continued employment relationship
intolerable).
The applicant’s dismissal was not justified in circumstances
where he had a good explanation for his absence from work,
ie that
he was on sick leave because of pulmonary tuberculosis.
Evaluation
Having regard to the test set out in
De Villiers,
the
decision of the MEC cannot be said to have been rational. It was, on
the contrary, irrational and arbitrary.
Firstly, it is difficult to assess whether a decision could have
been reasonable and rational when the decision-maker offers
no
reasons for the decision. But, on the evidence before him, the MEC’s
decision could not have been rational.
The MEC could not have considered whether the employee’s
continued employment would have been intolerable. The employee
did
not commit misconduct; he was on sick leave. He could perhaps have
done more to make the Department aware of the reasons
for his
absence; but he did, in fact, inform his employer, and the reason
for his absence is common cause.
In any event, the absence was not wilful or deliberate. The
applicant was suffering from a serious illness and his physician
booked him off sick for that reason. There is no indication that the
MEC took this into account.
Conclusion
The decision of the MEC not to reinstate the applicant was arbitrary
and irrational. The decision must be reviewed and set aside.
The appropriate relief
The applicant has submitted that the Court should substitute its own
decision for that of the MEC, ie that the Court should order
that
the applicant be reinstated.
I agree that it would merely cause a further delay to refer this
matter back to the MEC for a decision. All the facts are before
the
court and I agree that the applicant should be reinstated. The only
question that concerns me is the extent of the retrospectivity
and
the terms and conditions on which, and position into which, the
applicant should be reinstated.
In
Director-General: Office of the Western Cape and another v
SAMA obo Broens and others
25
the Labour Appeal Court upheld the finding of this Court
26
that the dismissal of the employee was unfair; however, it held that
the Court could not order the Department of Health to reinstate
the
employee into a different post.
In the current scenario, the applicant wished to be reinstated into
the same post that he held before his deemed discharge. The
respondents led no evidence to indicate that this would not be
reasonably practicable. In those circumstances, I see no reason
why
he should not be reinstated as envisaged by s 193 of the LRA.
However, the reinstatement should not have full retrospective
effect. The Public Service Act makes provision for a scenario such
as this one. In terms of s 17(3)(b) the period during which he was
absent should be deemed to be leave without pay. That period
should
run from 29 December 2009 until the date of the impugned decision,
that is 31 May 2011.
Both parties asked that costs should follow the result. I see no
reason to disagree.
Order
I therefore order as follows:
The applications for condonation for the late filing of the review
application, the answering and replying affidavits are granted.
The decision of the respondent of 31 May 2011 is reviewed and set
aside.
The respondent is ordered to reinstate the applicant to his former
post retrospectively to 31 May 2011, on the same terms and
conditions of employment as previously pertained, without the loss
of any remuneration or benefits; save that the employee
is not
entitled to any remuneration for the period 29 December 2009 to 31
May 2011.
The respondent is ordered to pay the applicant’s costs.
_______________________
Anton Steenkamp
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Suzanna Harvey
Instructed by Chennells
Albertyn.
(Heads of argument
drafted by Graham Leslie).
RESPONDENT:
Ewald de Villiers -
Jansen
Instructed by the State
Attorney.
(Heads of argument
drafted by Cecil Tsegarie).
1
Proclamation
103 published in
Government Gazette
15791 of 3 June 1994.
2
Act
66 of
1995.
3
Act
3
of 2000.
4
Section
7(1).
5
Chirwa
v Transnet Ltd and Others
(2008) 29
ILJ
73 (CC).
6
Gcaba
v Minister of Safety & Security and Others
(2010) 31
ILJ
296 (CC) paras [67] and [68].
7
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2)
SA 24
(CC) paras [97] – [104].
8
1978
(1) SA 13
(A) 39A.
9
At
41 E-F.
10
2006
(2) SA 603
(SCA) at 612 E-F para [22], citing
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005
(2) SA 302
(SCA) at 321.
11
It
is not clear if the MEC conveyed the decision to the applicant on
the same day.
12
1962
(4) SA 531
(A).
13
The
MEC, Theuns Botha, did not depose to an affidavit. The deponent to
the answering affidavit is a manager employed at the office
of “the
Director, Labour Relations”. It is not clear whether he is
employed by the Western Cape Department of Health.
He says that he
is authorised to depose to the affidavit by the MEC and the
applicant did not take issue with this in reply.
14
1984
(3) SA 623 (A).
15
Supra.
16
Supra.
17
Public
Servants Association of South Africa on behalf of PWJ de Bruyn v
Minister of Safety and Security and Another
(Case no JA 91/09),
15 May 2012 (unreported).
18
Supra
paras [24] – [31].
19
De
Villiers v Head of Department: Education, Western Cape Province
(2010) 31
ILJ
1377 (LC).
20
National
Commissioner of the South African Police Service v Harri N.O.
(2011)
32
ILJ
1175 (LC).
21
Supra
paras [20] – [21].
22
Act
76 of 1998.
23
De
Villiers (supra)
para [27] at 1392 E (footnotes omitted). See
also
Mogola & another v Head of Department: Department of
Education
(2012) 33
ILJ
1203 (LC).
24
Para
[30].
25
Labour
Appeal Court (CA 5/2011), 26 April 2012, unreported (
coram
Davis JA, Molemela AJA and Murphy AJA).
26
(2011)
32
ILJ
1077 (LC).