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[2013] ZALCPE 28
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Ketshengana v Menber of the Executive Council Department of Health Eastern Cape and Another (P 487/12) [2013] ZALCPE 28 (14 November 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case No: P 487/12
DATE: 14 NOVEMBER 2013
Not Reportable
In the matter between:
PHINDIWE PRINCESS
KETSHENGANA
........................................
Applicant
And
THE MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT OF HEALTH
EASTERN
CAPE
...................................................................
First
Respondent
THE HEAD OF DEPARTMENT
DEPARTMENT OF HEALTH
EASTERN CAPE
PROVINCE
..........................................
Second
Respondent
Heard: 14 November 2013
Delivered: 14 November 2013
Summary: Section 17(3) (b) of the
Public Service Act 103 of 1994 requires an employee whose services
have been terminated in terms
of section 17 (3)(a)(i) of the same Act
to make representations to the executing authority when the employee
seeks to be reinstated.
In the event that the representations are
made to a person other than the executing authority, the applicant’s
application
for an order compelling the executing authority to
consider her representations cannot succeed.
REASONS FOR JUDGMENT
LALLIE J
[1] The applicant brought this
application for an order directing the respondents to consider her
reinstatement as Manager: Nursing,
Elizabeth Donkin Hospital, Port
Elizabeth in terms of section 17 (5) (b) of Public Service Act 103 of
1994 the (PSA). It is opposed
by the respondents.
On 14 November 2013, I granted an order
dismissing the application with costs. The applicant subsequently
sought reasons for my
judgement which are provided below.
[2] The salient facts of this matter
are that the applicant was employed by the Department of Health of
the Province of the Eastern
Cape (‘the Department’) as a
Chief Matron of the Elizabeth Donkin Hospital in Port Elizabeth. She
was appointed as
the acting manager of the same hospital from 25 May
2007. Shortly after her appointment, the applicant had to deal with
problems
which included unprotected strike action directed at her
management style. She submitted that some employees who are members
of
NEHAWU, trade union, held sit-ins in her office and displayed both
physical and verbal aggressive behaviour towards her. She reported
the situation to her head office in Bisho. Things came to a head on
the 29 June 2009, when the applicant was physically pushed
from her
chair by aggressive employees who hurled abuse at her and threatened
her with more violence and death. The Department
took a decision to
launch an urgent application for an order that members of NEHAWU
should desist from their unlawful conduct and
unprotected strike
action and resume their duties. When a further decision to postpone
the filing of the application until further
notice was taken the
applicant fell ill. She was put on sick leave by her Doctor until 13
July 2009 at the end of which she did
not return to work. A number of
letters were addressed to the Department by the applicant’s
attorneys in an effort to deal
with her absence from work. The
Department stopped paying the applicant’s emoluments. On 8
August 2012, the Department addressed
a letter to the applicant
informing her of the termination of her services as a result of
having absconded from work in terms of
17 (3) (a) (i) of the PSA. She
was further apprised of her right to make representations to the
executing authority in terms of
section 17 (3) (b) of the same Act.
On 5 September 2012, the applicant made written representations to
the chairperson of the portfolio
committee for health to which she
received no response.
[3] It was submitted on behalf of the
respondents that this application stands to be dismissed with costs
on the grounds that the
applicant made her representations to a
person other than the executing authority as envisaged in section 17
(3) (b) of the PSA.
[4] The applicant sought to rely on De
Villiers v Head of Department of Education, Western Cape Province
(2010) 31 ILJ 1377 (LC),
in which the Court dealt with the import of
section 17 (3) (d) of the PSA. However, the decision does not detract
from the requirement
that the applicant had to comply with section 17
(3) (b) and make representations to the executing authority.
[5] It is common cause that the
applicant absented herself from work without permission in excess in
a calendar month leading the
Head of the Department for Health in the
Eastern Cape Province to invoke provisions of section 17 (3) (a) (i)
of the PSA. She was
apprised of her right to make representations to
the executing authority in terms of section 17 (3) (b) of the PSA in
the event
of seeking reinstatement. She did not. She instead directed
her representations to the chairman of the portfolio committee for
health thus failing to fulfil the requirement in section 17 (3) (b)
of the PSA. She had no right to have the request for her
reinstatement
considered without having complied with provisions of
section 17 (3) (b) of the PSA. Her application was therefore
dismissed for
her failure to comply with section 17 (3) (b) of the
PSA. The applicant was apprised of her right to make representations
to the
executing authority, she proferred no valid reason for not
complying with the section 17 (3)(b) of the PSA. Her non-compliance
was unreasonable and it led the Department to expend public funds to
oppose the application. A costs order against the applicant
was, in
the circumstances justified.
Lallie J
Judge of the Labour Court of South
Africa
APPEARANCE
For the Applicant: Advocate Grobler
Instructed by: Micheal Randel
Attorney
For the Respondent: Advocate Dala
Instructed by: State Attorney