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[2013] ZALCPE 27
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Department of Health v PHSDSBC and Others (P294/2011) [2013] ZALCPE 27; (2014) 35 ILJ 2166 (LC) (13 December 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
Case number:
P294/2011
In the matter
between:
DEPARTMENT OF
HEALTH
.....................................................................................................
Applicant
and
PHSDSBC
...........................................................................................................................
First
Respondent
PIERRE
NAUDE
N.O
….............................................................................................
Second
Respondent
NEHAWU
.......................................................................................................................
Third
Respondent
THABO
MADYIBI
.....................................................................................................
Fourth
Respondent
Heard : 24
October 2013
Delivered: 13
December 2013
Summary: Review
application. Section 17 of the Public Service Act discharge.
Bargaining Council has jurisdiction to adjudicate the
dismissal
dispute if the requirements of section 17 had not been met.
JUDGMENT
PRINSLOO,
AJ
Introduction
[1] The Applicant is
seeking the review and setting aside of an arbitration award wherein
it was found that the Fourth Respondent
(Madyibi) was indeed
dismissed and that his dismissal was found to be unfair. The
application is opposed.
[2] The Second
Respondent (arbitrator) issued an arbitration award on 9 December
2010, after the unfair dismissal dispute proceeded
on 19 July 2010
and was postponed to 15 November 2010 to allow the parties to consult
with witnesses to rebut or corroborate Madyibi’s
case that he
remained at the transport office at King Sandile Dalindyebo LSA until
20 February 2008.
[3] In the
arbitration award of 9 December 2010 the arbitrator found that
Madyibi was dismissed and the Applicant was to indicate
within 14
days whether or not it wished to deal with the issue of procedural
and substantive fairness. In the event that the Applicant
did not
wish to proceed or upon expiry of the 14 day period, the matter would
have been determined on the evidence led.
[4] The arbitrator
issued a further arbitration award, to be read with his findings on
the operation of section 17 of the Public
Service Act 1994 (PSA), as
per the arbitration award of December 2010.
[5] The arbitrator
stated that the Applicant was afforded an opportunity to prove that
Madyibi’s dismissal was procedurally
and substantively fair and
the Applicant did not use the opportunity wherefore the dispute was
finalised on the evidence before
the arbitrator.
[6] The arbitrator
retrospectively re-instated Madyibi and it appears that the
arbitration award was faxed from the First Respondent
on 31 May 2011.
[7] The review
application was to be filed within six weeks from 31 May 2011, which
means that it was to be filed by 12 July 2011.
The review application
appears to be filed on 30 June 2011 and is therefore filed within the
prescribed six week period.
[8] The Applicant
however sought condonation for the late filing of the review
application, based on the fact that it was shown
a letter from NEHAWU
on 15 April 2011, demanding Madyibi’s re-instatement and by
that time the six week period had lapsed.
The application for
condonation is opposed.
[9] I am of the view
that there is no need to apply for and to grant condonation as the
application for review was filed within
six weeks from the date the
final arbitration award was faxed and wherein Madyibi was
re-instated.
[10] Even if I am
wrong and condonation is indeed required, the granting or not of
condonation is within the discretion of this
Court. I am of the view
that the degree of lateness is not so excessive and the explanation
therefore not so weak that the Applicant
should be prejudiced to an
extent that its application for review is not considered at all. In
so far as it may be necessary, condonation
is granted for the late
filing of the review application.
Background facts
[11]
The brief history of this matter is as follows: the Applicant
employed Madyibi as an administration clerk at the Mbekweni Health
Centre and during September 2005 Madyibi was delegated to work at the
King Sandile Dalindyebo LSA (KSD) to assist
inter
alia
with
driving responsibilities.
[12] Around May 2007
the Applicant decided that Madyibi should return to the Mbekweni
Health Centre. Madyibi refused to return to
Mbekweni Health Centre
and he was informed that his absence would be treated as leave
without pay. The Applicant subsequently instituted
disciplinary
proceedings in respect of gross insubordination for failing to comply
with the instruction to report at Mbekweni Health
Centre. In August
2007 Madyibi was found guilty and he was issued with a final written
warning, coupled with a further instruction
to report at Mbekweni
Health Centre, which he appealed in September 2007. Madyibi never
received any outcome on this appeal he
filed.
[13] Due to the
continued and extended absence of Madyibi at the Mbekweni Health
Centre, the Applicant invoked the provisions of
section 17 of the PSA
in February 2008 and terminated the employment of Madyibi.
[14] Madyibi was
informed that his services had been terminated by operation of law
and he was granted an opportunity to make submissions
to the Member
of the Executive Council (MEC) if he sought re-instatement. Madyibi
made submissions to the MEC, which was rejected
by the MEC on 29
September 2009.
[15]
An unfair dismissal dispute was subsequently referred to the First
Respondent. From the transcript it is evident that the Applicant
never raised a point
in
limine
on
jurisdiction and that the existence of dismissal was in dispute. The
arbitrator indicated that the existence of the dismissal
had to be
determined first and all parties were in agreement that the matter
should proceed on that basis.
[16] The Second
Respondent (the arbitrator) determined that Madyibi was indeed
dismissed and he ordered his retrospective re-instatement.
It is this
finding that the Applicant now seeks to review.
The arbitration
award:
[17] The arbitrator
had to decide was whether or not there was a dismissal as envisaged
by the provisions of the Labour Relations
Act 66 of 1995 (the Act).
[18] The Applicant’s
case is that Madyibi absented himself for a period exceeding on
calendar month and his contract of employment
was terminated in terms
of the provisions of section 17(5)(a)(i) of the PSA. It was thus
terminated by operation of law and there
existed no dismissal.
[19] Madyibi on the
other hand denied that he was absent and contended that he tendered
his services at KSD. He also led evidence
and called witnesses to
corroborate that he reported for duty at KSD during 2007 until
February 2008.
[20] The issue
therefore was whether the jurisdictional pre-conditions for the
operation of section 17(5)(a)(i) of the PSA existed
and consequently
whether the Applicant could rely on it.
[21] Madyibi’s
testimony was that he reported for duty at KSD for the period May
2007 until February 2008, when his services
were terminated, and that
the Applicant paid his full salary for the said period. The Applicant
disputed this but called no witnesses
to rebut this version.
[22] The arbitrator
found that Madyibi proved that he was dismissed and he afforded the
Applicant an opportunity to deal with issues
related to procedural
and substantive fairness, but it failed to do so.
[23] In determining
the dispute, the arbitrator found that before the provisions of
section 17(5)(a)(i) of the PSA could be relied
upon, an employee must
be absent for a period exceeding one calendar month and this was a
question of fact that could be determined
easily. The employer
further has to show that the employee was absent without permission
and once it is shown, section 17(5)(a)(i)
of the PSA operates without
any act on the part of the employer.
[24] The
jurisdictional pre-requisite for the operation of section 17(5)(a)(i)
of the PSA is met when an employee was absent without
permission for
a period exceeding one calendar month, whereupon the employee is
notified that his / her services were terminated
by law.
[25] The arbitrator
considered the evidence and found that in August 2007 Madyibi was
found guilty of insubordination and issued
with a final written
warning, coupled with a further instruction to report at Mbekweni
Health Centre. Madyibi appealed in September
2007 and his appeal
stayed the consequences flowing from the chairperson’s
findings, which means that until such a time that
the appeal was
finanlised, the chairperson’s instruction had no force and
effect and was not to be complied with. It follows
that it cannot be
said that Madyibi was absent without permission for a period
exceeding one calendar month when he failed to report
at Mbekweni
Health Centre, but reported at KSD.
[26] The arbitrator
found that the Applicant was never in a position to rely on the
provisions of section 17 of the PSA and the
termination of Madyibi’s
services amounted to a dismissal as envisaged by section 186(1)(a) of
the Act.
The provisions of
section 17 of the PSA
[27] The relevant
portions of the now repealed section 17(5) of the PSA provided as
follows:
'(5)(a,)(i) An
officer, other than a member of the services or an educator or a
member of 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
(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, reportsfor 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.'
[28] The intention
of the section was that 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.
[29]
This Court has in several of its judgments set out what the
requirements are in deciding whether the provisions of s 17(5
)(a)
(i)
of the PSA have been met. These are:
29.1 the employee
must be an officer;
29.2 the employee
must have absented himself or herself from official duties;
29.3 the absence
must be without permission from the head of department or delegated
official;
29.4 the period of
absence must exceed one calendar month
[30]
It is trite law that the question as to whether the requirements of s
17(5
)(a)
(i)
of the PSA have been met or not, is a factual enquiry and is
justiciable by a court of law and/or the bargaining council. If
the
requirements have been met, the bargaining council will lack
jurisdiction to hear the dispute on the basis of section 17(5
)(a)
(i)
of the PSA. If the requirements have not been met, the discharge will
not be ex
lege
and
the fairness of the dismissal should be considered.
Grounds of review
[31] The Applicant
raised a number of grounds of review in its founding and
supplementary affidavits.
[32] The first and
in my view the main ground for review is that the arbitrator
misconducted himself by committing errors of law.
In its heads of
argument the Applicant submitted that the main question this Court
has to determine is whether the arbitrator had
jurisdiction to
arbitrate the dispute before him in light of the fact that Madyibi’s
termination of service was by operation
of law in terms of section
17(5)(a)(i) of the PSA.
[33] The Applicant’s
case is that there is a distinction between a dismissal and a section
17 of the PSA (‘section 17’)
termination. The arbitrator
correctly identified the dispute as a section 17 termination and the
enquiry should have been whether
Madyibi absconded and not whether he
was dismissed. The arbitrator required that the Applicant proved the
fairness of the dismissal
in circumstances where there was no
dismissal.
[34] The Applicant
submitted that a discharge in terms of the provisions of section
17(5)(a)(i) of the PSA constitutes a termination
of employment by
operation of law and therefore no dismissal exists that could be
challenged on the basis of unfairness. The only
challenge is to take
the MEC’s decision not to re-instate on review.
[35] The arbitrator
disregarded the distinction between a dismissal and a section 17
termination when he regarded the termination
as a dismissal. He
committed an error of law when he found that Madyibi was dismissed.
[36] Madyibi’s
case on the other hand is that the provisions of section 17 of the
PSA did not apply in the circumstances for
a number of reasons.
Firstly section 17 only applied to officers and he was not an
‘officer’ but an employee and secondly
at all material
times the Applicant was aware of his whereabouts and remained in
contact with him and it cannot be said that he
was absent from work.
[37] Madyibi was
strictly speaking not absent form work, but was reporting and
tendered his services at KSD, contra the instructions
from his
employer.
[38] In determining
the dispute, the arbitrator found that before the provisions of
section 17(5)(a)(i) of the PSA could be relied
upon, an employee must
be absent for a period exceeding one calendar month and this was a
question of fact that could be determined
easily. The employer
further has to show that the employee was absent without permission
and once it is shown, section 17(5)(a)(i)
of the PSA operates without
any act on the part of the employer.
[39] The arbitrator
held that whether or not there was a dismissal, was step one in the
issues he had to determine. If there were
a dismissal, step two would
be to determine the fairness of the dismissal.
[40]
The Applicant’s case is that once section 17 of the PSA was
raised as reason for termination, that should have been accepted
and
that should have been the end of the enquiry as the bargaining
council had no jurisdiction to determine an ex
lege
termination
where no dismissal occurred. The only recourse was a review
application to court.
[41]
In
Member
of the Executive Council for Health v Khoetha and others
1
the
employee,
a senior security officer, had refused over a period of time to
report for duty at a hospital but reported for duty instead
at a
district office where he had originally been appointed. Eventually,
he was dismissed by operation of law in terms of s 17(5
)(a)
(i)
of the PSA for failing to report for work at the hospital. The
bargaining council arbitrator had confirmed that four requirements
had to be satisfied before the provisions of the section could apply:
the person had to be an officer or employee; the employee
had to
absent himself from official duties; the absence had to be without
the permission of the head of department, and the absence
had to
exceed a calendar month. Once all four requirements were present, it
would then be deemed that the employee was discharged
from the public
service because of misconduct. The Employer sought to review and set
aside an arbitrator's award on the basis that
the bargaining council
did not have jurisdiction as the dismissal of its employee had
occurred ex
lege
in
terms of section 17(5
)(a)
(i)
of the PSA.
[42] In determining
the review application in the Khoeta matter this Court held that:
“
It
is trite law that any factual enquiry about whether the requirements
of s 17(5)^ (i) of the PSA have been met, is justiciable
by a court
of law and/or the bargaining council. Once it is found that the
requirements have been met, the bargaining council will
lack
jurisdiction to hear the dispute on the basis of s 17(5)^ (i) of the
PSA. If the requirements have not been met, the said
provisions will
not have come into operation and the discharge will be invalid and
the dismissal will be substantively and procedurally
unfair.
It is trite law that
the test to be applied when reviewing a jurisdictional ruling is
whether objectively speaking the facts that
would give the bargaining
council or CCMA jurisdiction to entertain the dispute existed. If
such facts did not exist, the bargaining
council would not have
jurisdiction despite its finding to the contrary.”
[43]
In
HOSPERSA
and another v MEC for Health
2
the
Court held that there are two mechanisms available where employees
absent themselves from work without permission. The first
is to
charge them for misconduct and the second mechanism is in terms of
section 17(5
)(a)
of
the PSA. Employees who absent themselves without permission for more
than one calendar month shall be deemed to have been discharged
and
the provisions are automatically invoked by operation of law and it
automatically deprives employees of their employment. The
Court held
that:
“
All
in all, s 17(5) is a Draconian procedure. It must be used sparingly
and only when the code cannot be invoked when the employer
has no
other alternative. That would be so, for example, when the
respondents are unaware of F the whereabouts of the employees
and
cannot contact them. Or, if the employees make it quite clear that
they have no intention of returning to work. The code is
a less
restrictive means of achieving the same objective of enquiring into
and remedying an employee's absence from work. It enables
employees
to invoke the rights to fair labour G practice and administrative
justice. All the jurisdictional prerequisites for proceeding
in terms
of s 17(5) (a,) (i) must be present before it is invoked.”
[44]
In the matter of
Grootboom
v National Prosecuting Authority and another
3
the
Labour Appeal Court has held that:
“
The
finding of the court a quo that the appellant's services were
terminated by operation of law and that there is no decision to
review is, in my view, correct. To the extent that the appellant
contends, relying on
HOSPERSA
& another v MEC for Health
that
the first respondent knew where he was and that where there are other
less drastic measures that the first respondent could
have invoked,
and hence the respondent was not supposed to use s 17(5)^ to
terminate his services, [this contention] is without
merit. There is
nothing in s 17(5) that prescribes that the deeming provision will
not come into operation if the head of the department
is aware of his
whereabouts.
There is also
nothing in s 17(5) that makes it a requirement that the deeming
provision does not apply where there are other less
drastic
provisions or measures which an employer may use. Such requirements,
if any, would not have made sense in that there is
no action or
decision required by the employer for the deeming provision to become
operative.
The
provision applies, by operation of law, once the circumstances set
out in s 1
7(5)(a
)(\)
exist, namely, an officer who absents himself/ herself from official
duties without permission of his/her head of the institution
for a
period exceeding one calendar month. There is no requirement in the
section that an employee should be heard before the deeming
provision
applies. Neither is any action required to be taken by the relevant
head of the institution for the deeming provision
to apply. All that
the head of the institution is required to do is to inform the
employee what has taken effect by operation of
law.”
[45]
In
Grootboom
v National Prosecuting Authority and another
4
the
Constitutional Court recently held that the jurisdictional
requirements of section 17(5) of the PSA have not been met where
an
employee was not absent without permission of his employer and where
the employer knew at all relevant times where he was and
was
communicating with the employee. The employer made a conscious
decision not to recall the employee but rather to discharge
him and
it was found that the Labour Court and the Labour Appeal Court was
wrong and the employee’s appeal succeeded.
[46]
In casu
it
is clear from the objective facts placed before the arbitrator that
Madyibi was not absent from his official duties. He was performing
duties but not where he was instructed to do so and as such present
at work but at a different workstation. The requirements of
section
17 of the PSA had not been met. The position would have been
different if Madyibi was not reporting for duty at all.
[47]
The arbitrator found that the requirements of section
M(5)(a)
(i)
of the PSA were not met in that Madyibi was not absent without
permission for a period exceeding one calendar month. Madyibi
was
performing duties where he was not instructed to do so and for that
the Applicant instituted disciplinary proceedings and issued
a
warning. Once it is found that the requirements have been met, the
bargaining council will lack jurisdiction to hear the dispute
on the
basis of s 17(5
)(a)
(i)
of the PSA. If the requirements have not been met, the said
provisions will not have come into operation and the discharge will
be invalid and the dismissal will be substantively and procedurally
unfair.
[48] The arbitrator
had to engage in a factual enquiry to determine whether the
requirements of section 17 of the PSA had been met,
and if so, the
bargaining council would have no jurisdiction to arbitrate the
dispute. The arbitrator found that the requirements
of section 17 of
the PSA have not been met and therefore he had jurisdiction to
arbitrate the dispute. I am satisfied that the
arbitrator correctly
found that the bargaining council had jurisdiction to adjudicate the
dispute and he has not committed any
reviewable irregularity. This
ground for review is without merit.
[49] The second main
ground for review is that the arbitrator committed a gross
irregularity in that he made a finding based on
unreliable evidence
and on the basis of one version.
[50] In the
arbitration award of 9 December 2010 the arbitrator found that
Madyibi was dismissed and the Applicant was to indicate
within 14
days whether or not it wished to deal with the issue of procedural
and substantive fairness. In the event that the Applicant
did not
wish to proceed or upon expiry of the 14 day period, the matter would
have been determined on the evidence led.
[51] The arbitrator
subsequently issued a further arbitration award, to be read with his
findings on the operation of section 17
of the PSA, as per the
arbitration award of December 2010. The arbitrator stated that the
Applicant was afforded an opportunity
to prove that Madyibi’s
dismissal was procedurally and substantively fair and the Applicant
did not comply, wherefore the
dispute was finalised with the evidence
before him.
[52] This ground for
review is without merit. The Applicant is the creator of its own
misfortune when it failed to adduce evidence,
despite being afforded
an opportunity to do so.
[53] The arbitrator
cannot be said to have committed a gross irregularity when he made
findings based on the evidence placed before
him.
The test on
review
[54] The test to be
applied when reviewing a jurisdictional ruling is whether objectively
speaking the facts that would give the
bargaining council
jurisdiction to entertain the dispute existed. If such facts did not
exist, the bargaining council would not
have jurisdiction despite its
finding to the contrary.
[55] The arbitrator
did not strictly speaking issue a jurisdictional ruling. He issued an
arbitration award wherein he found that
Madyibi was dismissed and
because there was a dismissal, he had jurisdiction to adjudicate the
dispute and to determine the fairness
of the dismissal.
[56] Even if the
arbitration award has an element of a jurisdictional ruling, the
facts placed before the arbitrator showed that
Madyibi was not absent
without permission for a calendar month and it ousted the operation
of section 17 of the PSA and vested
jurisdiction.
[57]
The test that this Court must apply in deciding whether the
arbitrator's decision is reviewable has been rehashed innumerable
times since
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
5
whether
the conclusion reached by the arbitrator was so unreasonable that no
other arbitrator could have come to the same conclusion.
The
Constitutional Court very clearly held that the arbitrator's
conclusion must fall within a range of decisions that a reasonable
decision maker could make.
[58]
In
Herholdt
v Nedbank Ltd
6
the
Supreme Court of Appeal recently confirmed that:
“
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the enquiry or
arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
to particular facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable.”
[59] In reviewing
the arbitration award, the grounds for review as raised by the
Applicant must be assessed and this Court can only
decide whether the
arbitrator’s
decision was so unreasonable that no other arbitrator could have
reached the same decision. The test to be applied
is a strict one.
[60] Having
considered the evidence adduced at the arbitration proceedings and
the probabilities as they presented themselves to
the arbitrator, the
findings made by the arbitrator and the grounds for review raised by
the Applicants, I cannot accept that the
arbitrator's decision fell
outside of the band of decisions to which a reasonable decision maker
could come and it is not open
to review.
[61] The
representatives for both parties argued that costs should follow the
result. I can see no reason to disagree.
Order
[62] In the premises
I make the following order:
62.1 The application
for review is dismissed with costs.
Prinsloo AJ
Acting Judge of
the Labour Court
APPEARANCES:
For the Applicant
Advocate M Simoyi
Instructed by Java
Mama Attorneys
For the Third
Respondent: Adv Seleka
1
2011
32 ILJ 647 (LC).
2
2003
24ILJ 2320 (LC).
3
2013
34 ILJ 280 (LAC).
4
Constitutional
Case number CCT08/13
[2013] ZACC 37
, handed down on 21 October 2013
5
2007
28 ILJ 2405 (CC).
6
2013
34 ILJ 2795 (SCA).