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[2014] ZALCJHB 90
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Minister of Social Development v Mabuza and Others (JR297/11) [2014] ZALCJHB 90; [2014] 11 BLLR 1142 (LC) (26 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 297/11
In the matter between:
MINISTER OF SOCIAL
DEVELOPMENT Applicant
and
MN
MABUZA First
Respondent
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT Second
Respondent
SECTORAL BARGAINING
COUNCIL
LUFUNO RAMABULANO
NO Third
Respondent
Heard:
19 December 2013
Delivered:
26 March 2014
Summary:
Termination of employment by operation of law does not constitute
dismissal. The employer
does not make a decision whose fairness could
be challenged.
JUDGMENT
MTHOMBENI, AJ
Introduction
[1]
This is an application in terms of which the applicant seeks to
review and set aside a ruling of the third respondent, dated
16
November 2011, issued under the auspices of the second respondent.
Background
[2]
The first respondent was employed by applicant. His employment
contract was terminated in terms of Section 17(5) (a) (i) of
the
Public Service Act 103 0f 1994 (“the PSA”) after he had
absented himself from duty without permission for a period
exceeding
one calendar month.
[3]
Aggrieved with the termination of his employment, the first
respondent referred a dispute to the second respondent alleging
unfair dismissal. The latter scheduled a conciliation meeting and
appointed the third respondent to preside over.
[3]
The issue that the third respondent was required to determine was
whether the second respondent had jurisdiction to deal with
the
matter. Following submissions by the parties, the third respondent
made a ruling that the second respondent had jurisdiction
to
arbitrate on the dismissal of the first respondent.
[4]
The third respondent’s ruling is the subject of this
application. The first applicant opposed this application.
Third
Respondent’s ruling
[5]
In his analysis of evidence and findings, the third respondent states
the following:
‘
10
The matter relates to the termination of applicant’s employment
on account of absenteeism and in terms of s 17 of the Public
Service
Act. Section 17 of the said act (sic) authorised(sic) the discharge
of an employee who is absent from work for a period
of one calendar
months (sic),it is alleged he absented himself the period November
2008 to February 2009.
11 From the documentation
presented it appears applicant after the said absence and after
having been terminated he made a representation
and explained his
circumstances the last representation being the (a) letter to the
Minister, it is common cause the Minister rejected
his
representation.
12 I am of the opinion
the confirmation of his termination after his representation
constitute (sic) a dismissal in terms of
Labour Relations Act 66 of
1995
and in making the representation which was considered and the
outcome communicated to him applicant has well placed himself within
the ambit of the
Labour Relations Act.’
Grounds
for review
[5]
Mr Mokhari, on behalf of the applicant, made the following
submissions:
5.1 The decision by the
third respondent in finding that the second respondent has
jurisdiction to adjudicate on termination of
employment which by
operation of law is a decision which no reasonable decision maker
would have made.
5.2 The third respondent
committed a gross irregularity in making a ruling which is contrary
to the law.
5.3 The third respondent
exceeded his powers in that he is not empowered to arbitrate over a
dispute concerning termination of employment
by operation of law.
Applicable legal
principles
[6]
Section 17
(5) of the PSA provides that:
‘
(a)
(i) An officer, other than a member of the services or an
educator or a member of the Agency or the 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 discharged
from the public service on account of misconduct
with effect from the
date immediately succeeding his or her last day of attendance at his
place of duty.
.…
(b)
If an officer who is deemed to have been so discharged, reports for
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 reinstatement of that officer in the public service in
his or her post or
position, and in such a case the period of his or
her absence from official duty shall be deemed to be absent on
vacation or without
pay on such other conditions as the said
authority may determine.’
[7]
This court has consistently held that employees whose contracts of
employment have been terminated in terms of
Section 17
(5) of the PSA
or similar provision in the public service, have not been dismissed
but their contracts of employment have been
terminated by operation
of law. (See
Nkopo v Public Health and Welfare Bargaining Council
and Others
(2002) 23
ILJ
520 (LC);
Maidi v MEC for
Department of Education and Others
(2003) 24
ILJ
1552
(LC);
Member of the Executive Council, Public Works, Northern
Province v Commission for Conciliation Mediation and Arbitration and
Others
(2003) 24
ILJ
2155 (LC);
Seema v General Public
Service Services Bargaining Council and Others
(2005) 26
ILJ
2037 (LC) and
MEC for Education and Culture v Mabike and Others
(2005) 26
ILJ
2368 (LC).)
[8]
These decisions were confirmed by the Supreme Court of Appeal in
Phenithi
v Minister of Education and Others
,
[1]
where the court had the occasion to deal with the provisions of
Section 14 of the Educators Act 76 of 1998 which are almost identical
to those of Section 17 of the PSA, said the following:
‘
The
discharge is by operation of the law. In my view, the provision
creates an essential and reasonable mechanism for the employer
to
infer “desertion “when the statutory prerequisites are
fulfilled. In such a case there can be no unfairness, for
the
educator’s absence is taken by the statute to amount to a
“desertion”.’
[9]
In paragraph 12 of his ruling, the third respondent states:
‘
I
am of the opinion the confirmation of his termination after his
representation constitute (sic)
a
dismissal in terms of the
Labour Relations Act 66 of 1995
and in
making the representation which was considered and the outcome
communicated to him applicant has well placed himself within
the
ambit of the
Labour Relations Act.’ (My
emphasis).
[10]
In this regard, I am convinced that the third respondent erred in law
in that the first respondent’ contract of employment
had
already been terminated by operation of law, prior to
Section 17
(5)
(b) kicking in. The fact that the applicant did not exercise its
discretion in favour of the first respondent is not, in my
view,
tantamount to a “dismissal. For the purpose of this
application, I have not been called upon to determine whether the
applicant exercised its discretion in an unconstitutional manner.
Suffice to say that the exercise of discretion in the circumstances
by the applicant does not constitute a “dismissal”.
[2]
[11]
In my opinion, I concur with Mr Mokhari that the third respondent
committed an irregularity when he made an error of law and
also
exceeded his powers when he made a ruling that the second respondent
had jurisdiction to arbitrate on the dispute. Thus, the
third
respondents’ ruling falls to be reviewed and set aside.
[12]
In my view, this is not a matter where the costs should follow the
result.
[13]
In the result, I find that the third respondent arrived at a decision
which a reasonable decision-maker would have made and
order the
following:
1.
The second respondent does not have jurisdiction to arbitrate on the
dispute
that has been referred by the first respondent.
2.
There is no order as to costs.
______________
Mthombeni, AJ
Acting
Judge of the Labour Court
APPEARANCES:
For
Applicant:
Advoacte W Mokhari SC
Instructed
by:
The State Attorney
For
the First Respondent: In person
[1]
(2006)
27
ILJ
477 (SCA) at para 19.
[2]
See
Phenithi
v Minister of Education and Others
(2005) 26
ILJ
1231 (O) at para 4.