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[2013] ZALCCT 1
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DENOSA obo Mangena v MEC for Department of Health, Western Cape (C 914/11) [2013] ZALCCT 1; [2013] 5 BLLR 479 (LC) (14 February 2013)
Reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Case
no: C 914/11
In the matter between:
DENOSA obo N E MANGENA
Applicant
and
MEC FOR DEPARTMENT OF HEALTH, WESTERN CAPE
Respondent
Heard
:
31 January 2013
Delivered
:
14 February 2013
Summary:
Deemed discharge and application for reinstatement in
terms of s 17(3) of Public Service Act, 1994. Legality review in
terms of
s 158(1)(h) of LRA. Principles outlined in
Weder v MEC,
Dep of Health, Western Cape
[2012] ZALCCT 35 restated.
judgment
STEENKAMP J
Introduction
This case turns, once again, on the application of s 17(3) of the
Public Service Act
1
dealing with an application for reinstatement after a “deemed
discharge” in terms of that Act.
The facts of this case, and the applicable legal principles, are
essentially on all fours with those in an earlier judgment of
this
Court in
Weder v MEC for the Department of Health, Western Cape.
2
The same MEC and the same legal representatives were involved in
that case. It is, therefore, somewhat surprising that the same
respondent is back in the same Court opposing this application,
perhaps expecting a different outcome.
3
But that is the dispute before me.
Background facts
The applicant employee is Ms NE Mangena, a nurse who is represented
in these proceedings by her trade union, the Democratic Nursing
Organisation of South Africa (DENOSA). She was employed at GF Jooste
hospital in Manenberg, Cape Town. She was absent from work
for
reasons of ill health from 8 February to 31 May 2010.
The respondent is the Member of the Executive Council for the
Department of Health of the Western Cape.
4
He implemented the “deemed discharge” provision of the
PSA and the employee received no remuneration after April
2010.
The employee and her union applied for reinstatement in terms of
section 17(3)(b) of the PSA on 1 December 2010, together with
comprehensive written submissions. They included medical
certificates from her doctor and psychiatrist confirming that she
was unable to work at the time of her absence.
The MEC issued his decision in terms of s 17(3)(b) on 18 March 2011.
He provided no reasons. He simply stated:
“
I,
after having considered the evidence presented to me with regards 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) in terms of the
Public Service Amendment Act”
[
sic
].
The applicant seeks to have that decision reviewed and set aside in
terms of section 158(1)(h) of the LRA
5
.
It delivered its notice of motion on 16 November 2011, calling upon
the MEC to deliver the record “together with such
reasons as
are required by law or desirable to provide”. Still he
provided no reasons.
Mangena did not apply for sick leave. She telephoned her employer on
8 February 2010 and asked a staff member to inform her supervisor
that she was off sick.
The Head of Department sent her a letter on 19 March 2010,
instructing her to report for work on 22 March. She did not.
Instead,
she phoned her supervisor; explained that she had not sent
the hospital her medical certificates earlier; and then did so. The
employer did not query the certificates; yet it implemented the
“deemed discharge” provisions of section 17(3)(a)
and
stopped paying her.
Condonation
The MEC declined to reinstate the employee in terms of s 17(3)(b) of
the PSA and informed her of this decision on 18 March 2011.
Her
trade union launched this review application on her behalf on 16
November 2011, eight months later. They apply for condonation
for
its late filing.
The application is brought in terms of s 158(1)(h) of the LRA.
Unlike s 145, that section does not prescribe a time period of
six
weeks in which to bring the review application.
In
Weder,
6
I pointed out that the applicable time limits in the Promotion of
Administrative Justice Act (PAJA)
7
do not apply either. In terms of PAJA
8
,
an applicant must bring a review application within 180 days. But
since the judgment of the Constitutional Court in
Chirwa
9
and
Gcaba
10
,
it seems clear that PAJA does not apply to review applications
under the LRA. This principle was foreshadowed in
Sidumo
11
,
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, as
discussed
in
Weder
, 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’, as discussed in
Wolgroeiers Afslaers (Edms) Bpk v
Munisipaliteit van Kaapstad
12
. That principle has been reiterated in a post-Constitutional
dispensation – for example by Nugent JA in
Gqwetha v
Transkei Development Corporation Ltd and Others:
13
“
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.”
In considering what constitutes a ‘reasonable time’ in
the context of s 158 of the LRA, I suggested in
Weder
that
anything more than six weeks should at least trigger an application
for condonation.
In the case before me, the delay is lengthy. The extent of the delay
must be considered together with the other factors outlined
in
Melane v Santam Insurance Co Ltd
14
and subsequent authorities.
The reason for the delay is that Ms Mangena, advised at that stage
by her trade union only and not their current attorneys, referred
an
unfair dismissal dispute to the Public Health and Social Development
Bargaining Council. They did so within the prescribed
time period.
The respondent raised a point
in limine
that the Bargaining
Council did not have jurisdiction, as the “deemed discharge”
in terms of the PSA meant that the
employee’s employment
terminated by operation of law and thus there was no dismissal. The
Bargaining Council decided on
or about 14 September 2011 that it had
no jurisdiction. The trade union’s provincial organiser,
Bongani Lose, was unsure
of the appropriate route to follow, given
the legal complexity of the vexed issue of the proper interpretation
of s 17 of the
PSA. The union consulted its attorneys on 3 October
2011, ie about two weeks after having received the jurisdictional
ruling.
They obtained advice from counsel, leading to the decision
to bring this application in terms of s 158(1)(h) of the LRA. Mr
Lose
does not explain why the attorneys could not have provided this
advice, nor how long it took to obtain counsel’s opinion.
Nevertheless, they did bring the application within another six
weeks. Lose also explains that another union official, Jubeida
Behardien, who had been assisting the employee, was on leave from
4-21 November 2011. He does not explain why it was impossible
to get
hold of her in order to obtain instructions or information during
that time.
The explanation for the delay is open to severe criticism. The
union, acknowledging the legal complexity of the matter (at least
after having obtained the jurisdictional ruling), should have
consulted its attorneys earlier in order to service its member
properly. The attorneys should have acted more quickly. It is not
good enough for attorneys in condonation applications to hide
behind
a need “to obtain counsel’s opinion”; if they see
fit to practice law, and they are appropriately qualified,
they
should be able to advise their clients.
On the other hand, I take into account that the union did take
reasonable steps initially to refer what they considered to be
an
unfair dismissal dispute timeously. When the Bargaining Council
decided that it did not have jurisdiction, the applicant acted
within a reasonable time. The extent of the delay and the reasons
therefor must be considered together with the prospects of
success.
Given the earlier decision of this Court in
Weder
, it should
be obvious that the prospects of success are excellent.
The application for condonation is granted.
The applicable legal principles
The applicable legal provisions were set out fully in
Weder
,
I shall repeat them in summary form only.
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 158(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.
Mr
Leslie
, for the applicant, argued, firstly, that the MEC’s
decision to refuse reinstatement in terms of s 17(3(b) constitutes
administrative action and is reviewable in terms of PAJA;
alternatively, on grounds of legality.
As discussed in
Weder
, and given recent judicial precedent, I
cannot agree that PAJA applies. 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, as discussed in
Weder
and reiterated by Mr
Leslie
in argument, 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.
I asked counsel to provide me with an additional note on argument in
the light of the LAC’s decisions in
De Bruyn
and in
Grootboom
21
.
The latter was handed down after
Weder.
De Bruyn, a SAPS employee, lodged an application in the Labour Court
in terms of s 158(1)(h) of the LRA seeking to review his
employer’s
decision not to grant him temporary incapacity leave. The LAC
confirmed that De Bruyn’s remedy was to
refer to his dispute
to the appropriate bargaining council for arbitration. He could not
elect to approach the court directly
under s 158(1)(h). Relying on
the decisions of the Constitutional Court in
Chirwa
and
Gcaba
, the LAC held that a public servant is confined to the
labour law remedies available to him or her. A court will not hear
an
administrative review of a state employer’s decision where
it relates to, for example, to a dismissal or a transfer dispute.
State employees do not have an extra string to their bow and they
must follow the ordinary remedies available under the LRA.
I agree with Mr Leslie that, as was the case in
Weder
, the
finding of the LAC in
De Bruyn
has no bearing on the present
matter. Mangena seeks to review and set aside the decision of her
employer not to reinstate her
following a “deemed discharge”
under the PSA. This is not a dismissal or an unfair labour practice
dispute. At the
time of the decision under review, there was not
even a contractual nexus between the parties (this had terminated
ex
lege
by virtue of the operation of s 17(3)(a)(i) of the PSA).
Chirwa
and
Gcaba
have not altered the court’s
jurisdiction to review decisions under s 17(3)(b) of the PSA. These
authorities arguably prevent
employees from seeking to review
employer conduct
when they have other labour law remedies
available to them
. In the present matter, Mangena has no other
remedy available under the LRA. It is precisely this type of
situation to which
s 158(1)(h) is properly intended to apply.
In the case before me, like in
Weder
, 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
22
,
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 view 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
23
and not s 17 of the Public Service Act. And, as he pointed out:
24
“
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:
25
“
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.”
I agree with those sentiments, unaltered by the LAC’s decision
in
De Bruyn.
Mr
De Villiers-Jansen,
for the
respondent, relied on the decision of the Labour Court in
Grootboom
26
to argue that the only power the employer has is to consider whether
or not there are good reasons for the employee’s absence
“without authorisation” and to exercise the discretion
given by the PSA. As I understood his argument, he meant to
say that
the employer need not be satisfied that the continued employment
relationship would be intolerable in order not to reinstate
in terms
of s 17(3)(b) of the PSA.
Counsel was not aware of the subsequent LAC judgment in
Grootboom
,
hence my invitation to submit a further note on argument by 8
February 2013.
The decision of the LAC in
Grootboom
takes the matter no
further. The court upheld the dismissal of the review application on
purely factual grounds. Nothing in the
judgment disturbs the clear
authority on this point emanating from
De Villiers
(in both
the High Court (full bench) and the Labour Court). On the facts,
Grootboom had failed to show good cause justifying
his
reinstatement. Those facts, however, bear no relation to the present
matter. It is common cause that Mangena was absent on
grounds of
ill-health and that she had taken steps to inform her employer of
the reason for her absence.
In oral argument, Mr
de Villers-Jansen
also attempted to
distinguish the provisions of the Employment of Educators Act from
those of the PSA. He contended that, whereas
a schedule to the EEA
makes specific reference to the Code of the Good Practice on
Dismissal, the PSA does not.
This argument flows from the reasoning of the High Court decision in
De Villers
.
27
In essence, the High Court reasoned that:
a discharge under the EEA is deemed to be a dismissal on account of
misconduct;
a deemed dismissal on account of misconduct should be treated in a
similar fashion to a dismissal on account of misconduct
under the
EEA (which expressly referred to the LRA’s Code on
dismissal);
accordingly, a decision as to whether or not to reinstate an
employee under s 14 of the EEA should be subjected to the same
scrutiny as a dismissal under the LRA.
This test was then expanded on by the decision of Van Niekerk J in
the Labour Court in
De Villiers
28
(para 30).
To all intents and purposes, there is no difference between the
provisions of the EEA and the PSA:
Section 17(3)(a)(i) stipulates that the termination is a deemed
dismissal
on account of misconduct
.
Section 17(1)(a) expressly refers to the dismissal provisions of
the LRA. (These would in any event apply to the dismissal
of a
public servant).
Accordingly, for the purposes of determining what test should apply
when considering reinstatement, the PSA is substantially
identical
to the EEA.
I stand by my agreement with the test applied by Van Niekerk J in
De
Villiers.
Evaluation / Analysis
The employee should have applied for sick leave and she should have
provided her employer with the relevant medical certificates
at the
time. She did not; she only telephoned at the time and provided the
certificates later. It is not contested that she was
properly deemed
to have been discharged in terms of s 17(3)(a) of the PSA. But that
is not the principle that is under attack
in this review; what the
Court needs to consider is the decision by the MEC not to reinstate
her in terms of s 17(3)(b) of the
PSA.
Grounds of review
The applicant has raised the following grounds of review:
The MEC committed a gross irregularity by failing to appreciate the
nature of the inquiry before him.
The MEC’s decision was irrational and unreasonable.
Reasons for decision
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 in any event, it is apparent that the
MEC did not have regard to the applicable test as set
out in
De
Villiers
and confirmed in
Weder
, i.e. whether the
employee’s conduct had rendered a continued employment
relationship intolerable. Even in his answering
papers before this
Court, he persisted with an erroneous version of the test, arguing
that the only question is whether the employee
was absent from work
without permission.
Rationality
On the evidence before him, the MEC’s decision could in any
event not have been rational. Mangena had an explanation for
her
absence from work, i.e. that she had been booked off sick; the MEC
plainly disregarded this common cause fact. In those circumstances
his decision to refuse reinstatement without more was arbitrary and
irrational.
Conclusion
The decision of the MEC to refuse reinstatement in terms of s
17(3)(b) of the PSA was arbitrary, irrational and unreasonable.
It
must be reviewed and set aside. The only remaining question is what
to do next.
The appropriate remedy
It would serve little purpose to remit the dispute to the MEC. That
will cause only further delay. All the facts are before this
Court.
The employee wishes to be reinstated into the same post that she
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 she was
absent can be deemed to be leave without pay. But I would
go
further. The employee was absent from 8 February to 31 May 2010. She
was paid until the end of March 2010. The MEC decided
not to
reinstate her on 18 March 2011. Her union took eight months to refer
the dispute to the correct forum (albeit for reasons
addressed under
the heading of condonation). It would be inequitable to order the
employer to pay her backpay for the full period
when part of it is
due to the applicant’s delay, and not the respondent’s.
In my view, ot would be fair and equitable to order the employee’s
reinstatement retrospectively for 12 months.
Costs
The respondent persisted with its opposition to this application in
circumstances where he had no prospects of success, given
the
earlier judgment against him in
Weder
. He should pay the
applicant’s costs.
Order
I therefore make the following order:
The application for condonation for the late filing of the review
application is granted.
The decision of the respondent of 18 March 2011 is reviewed and set
aside.
The respondent is ordered to reinstate the employee, Ms Mangena, to
her former post retrospectively to 14 February 2012, on
the same
terms and conditions of employment as previously pertained, without
the loss of any remuneration or benefits.
The respondent is ordered to pay the applicant’s costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
GA Leslie
Instructed by Chennels
Albertyn.
RESPONDENT:
EA de Villiers-Jansen
Instructed by the State
Attorney.
1
Proclamation
108 of 1994 (the PSA).
2
[2012]
ZALCCT 35 (5 September 2012).
3
I
should note that I granted leave to appeal in
Weder
. That
appeal has not been heard. Nevertheless, one would have hoped that
the parties and their legal representatives may have
been able to
come to an interim agreement in this case, pending the appeal in
Weder
, rather than expecting the Court to replicate much the
same facts and the same legal principles in this case as in
Weder
.
4
The
incumbent MEC at the relevant time was Mr Theuns Botha.
5
Labour
Relations Act 66 of 1995
.
6
Supra
paras [5] – [8].
7
Act
3 of 2000.
8
Section
7(1).
9
Chirwa
v Transnet Ltd and Others
(2008) 29
ILJ
73 (CC).
10
Gcaba
v Minister of Safety & Security and Others
(2010) 31
ILJ
296 (CC) paras [67] and [68].
11
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2)
SA 24
(CC) paras [97] – [104].
12
1978
(1) SA 13
(A) 39A.
13
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.
14
1962
(4) SA 531 (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
Grootboom
v NPA
(Unreported decision of the LAC case no CA7/11, 21
September 2012).
22
Supra
paras [20] – [21].
23
Act
76 of 1998.
24
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).
25
Para
[30].
26
Grootboom
v National Prosecuting Authority & Another
(2010) 31
ILJ
1875 (LAC).
27
De
Villiers v Minister of Education
2009 (2) SA 619
(C) para [20].
28
Supra
para [30].