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[2014] ZALCCT 19
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PSA obo Smit v Mphaphuli NO and Others (C742/11) [2014] ZALCCT 19; (2014) 35 ILJ 2254 (LC) (16 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: C 742/11
In
the matter between:
PSA OBO SMIT
Applicant
AND
JOSEPH MPHAPHULI
N.O.
First Respondent
PHSDSBC
Second Respondent
DEPARTMENT OF
HEALTH, WESTERN CAPE
Third Respondent
MEC FOR HEALTH,
WESTERN CAPE
Fourth Respondent
Heard
:
6 March 2014
Delivered
:
16 April 2014
Summary:
Public Service Act s 17(3) – whether employee dismissed or
services terminated by operation of law. Review
of arbitration award;
alternatively, review of decision by MEC not allowing employee’s
reinstatement. LRA s 158(1)(h). Judgments
in Grootboom, Weder and
Mangena considered.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This
application comprises two applications for review. Both applications
arise from the termination of the employment of Ms M E
Smit. She is
represented as the applicant by her trade union, the Public Servants
Association (PSA). She was employed by the Department
of Health (the
third respondent). The Department says that her employment was
terminated by operation of law in terms of s 17 of
the Public Service
Act
[1]
. She claims she was
dismissed. The first respondent (the arbitrator) found in the
Department’s favour. The applicant seeks
to have that award
reviewed and set aside in terms of s 145 of the Labour Relations
Act.
[2]
Alternatively, she seeks
to review and set aside the decision of the fourth respondent, the
Member of the Executive Council for
Health in the Western Cape. He
refused to reinstate her into her position in terms of s 17(3)(b) of
the Public Service Act. That
review application is brought in terms
of s 158(1)(h) of the LRA.
[2]
The applicant also applied for condonation.
Section 158 does not prescribe a time period. The review application
was brought within
a reasonable time and the applicant had good
prospects of success. I considered it in the interests of justice to
grant condonation.
Background
facts
[3]
The employee worked for the Department as a
professional nurse at the Hermanus provincial hospital from 1 August
2003 to 30 November
2009. Her services were terminated on 30 November
2009, purportedly in terms of s 17 of the Public Service Act, as she
had been
absent from work without leave for more than 30 days, that
is from 26 October 2009 to the date of termination.
[4]
The employee’s absence arose from an
injury on duty in 2008. She consulted an orthopaedic surgeon, Dr
Richard du Toit, in
December 2008. He suspected cartilage injury. He
put her on crutches and prescribed treatment. Her condition did not
improve. Despite
further treatment throughout 2009, the knee problem
persisted. Dr du Toit advised the employee on 26 October 2009 to stay
off work
until such time as an arthroscopy could be done. That was
eventually done on 26 November 2009. Dr du Toit then recommended a
knee
replacement. That was eventually done on 15 February 2010.
[5]
At the arbitration, the employee testified
that she presented the Department with medical certificates after
every event of treatment,
consultation or surgery throughout 2009
until 26 October. She received a telephone call from the Department
on 30 October 2009
to tell her that she would be dismissed if she did
not return to work. However, she had been booked off by Dr du Toit
for the arthroscopy
on 26 November 2009. She sent the final medical
certificate to the Department on 3 December 2009, but her services
had already
been terminated on 30 November 2009.
[6]
The employee reported to Mrs Bouwer, a
nursing manager at Hermanus provincial hospital. Mrs Bouwer testified
at arbitration that
the employee had not contacted her from 26
October 2009 to the termination of her employment on 30 November
2009. However, she
did hear that the employee had telephoned to
report sick on 26 October 2009. She sent the employee the letter of
30 November 2009
informing her that services were being terminated
forthwith. She only received a medical certificate issued by Dr du
Toit on 3
December 2009.
[7]
On 3 December 2009 the PSA addressed a
letter on behalf of the employee to the Director: Overberg District
for the Department of
Health, Dr N Maharaj, requesting her
reinstatement in terms of section 17(5)(b) of the Public Service Act.
The letter set out the
following factors to be taken into account to
show “good cause” as required by that subsection:
7.1
The Act had been incorrectly applied as the
employee had notified Mrs Bouwer that she was due for an operation on
her knee and that
her orthopaedic surgeon, Dr du Toit, had booked off
sick until the surgery;
7.2
the medical certificate was sent to Mrs
Bouwer immediately and she was informed by Ms Smit of the operation;
7.3
the injury happened on duty;
7.4
the Department was aware of this and
decided not to accept the medical certificate; and
7.5
the Department was fully aware of where to
find the employee.
[8]
Dr Maharaj wrote to the PSA on 9 December
2009 advising them to direct their “appeal” to the MEC
for Health. The PSA
did so. The MEC, Theuns Botha, respondent on 30
March 2010. He declined to reinstate the employee and confirmed the
termination
of her services. He did not provide any reasons.
The
arbitration award
[9]
The arbitrator considered section
17(5)(a)(i) of the Public Service Act, which reads as follows:
“
An
officer, other than a member of the services or an educator or a
member of the Agency or the Service, who absent 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 or
her place of duty.”
10.
The arbitrator took into account Mrs
Bouwer’s evidence that the employee was absent for more than a
calendar month, i.e. from
25 October 2009 to 30 November 2009. The
employee did not offer any evidence to counter Bouwer’s
evidence that the employee
did not account for her absence and did
not have permission to be absent. On the evidence before him, the
employee did not have
permission to be absent. Therefore, her
employment was terminated by operation of law in terms of s 17 of the
Public Service Act.
The
MEC’s decision
[11]
The letter of the MEC to the employee dated
30 March 2010 reads, in full, as follows:
“
After
thorough consideration of all relevant facts pertaining to the
termination of your services, I have decided to confirm the
termination of your services in terms of the Public Service Act of
1994 as amended by Act 30 of 2007, section 17(3)(a)(1) (hereafter
referred to as the Act) with effect from 26 October 2009.
Any overpayment of salary
will be recovered from your pension payouts.
Kindly acknowledge
receipt of this letter.”
[12]
The MEC did not provide any reasons for his
decision.
Evaluation
/ Analysis
[13]
Section
17(5)(a)(i) of the Public Service Act – and similar
provisions in the Employment of Educators Act – has
been the
subject of much litigation. Eventually, it was considered by the
Constitutional Court in
Grootboom
[3]
.
Unfortunately, the highest court decided that case on the facts and
did not give much guidance on the proper interpretation of
the
section.
[14]
In
Grootboom
,
Bosielo AJ found on the facts that the employee in that case had not
absented himself from his employment as he had been placed
on
suspension. It was therefore impossible for him to absent himself
from his place of employment within the meaning of section
17(5)(a)(i) from when his employer expressly required his absence
from the workplace. That meant that he was absent with the permission
of his employer. Therefore, one of the essential requirements of
section 17(5)(a)(i) had not been met. Unfortunately, given that
finding, the constitutional court did not consider the judgements of
the Supreme Court of Appeal in
Phenithi
[4]
or any of the judgements of this court dealing with the same
subsection.
The
first review application: s 145 of the LRA
[15]
The
applicant submitted that the decision of the arbitrator was
unreasonable in accordance with the test set out in
Sidumo
[5]
because the arbitrator did not consider whether all the
jurisdictional prerequisites for invoking the deeming provision in
section
17(5)(a)(i) were present; and that he failed to consider an
earlier jurisdictional ruling made by Commissioner C S Mbileni in
which
that commissioner found that the deeming provision had been
incorrectly applied in the circumstances of this case.
[16]
Mr
May
argued that the arbitrator failed to consider the argument that s
17(5)(a)(i) should be read with section 17(1)(a) and that the
Department was obliged to follow the procedures provided for in the
LRA in dismissals based on misconduct. He relied for this argument
on
the case of
Seema.
[6]
In that case, Leeuw AJ expressed the view
[7]
that, since section 17(5)(a)(i) provides that a person who has been
discharged by operation of law is deemed to have been discharged
on
account of misconduct, the employer must apply the procedures
provided for in the LRA in dismissals based on misconduct.
[17]
But an error of law is not in itself sufficient for an award to be
set aside. It is only of any consequence if its effect is
to render
the outcome unreasonable.
[8]
In
this case, the arbitrator properly considered the evidence before
him. The evidence was that the employee was absent from work
from 26
October 2009 until the date of her termination, 30 November 2009. She
did not inform Mrs Bouwer of her absence or request
her permission.
The arbitrator’s conclusion that the deeming provision came
into play, was reasonable.
[18]
The arbitrator also considered the
jurisdictional prerequisites. Those were that:
18.1
the employee was absent from her duties for
more than a calendar month; and
18.2
she did not have the permission of her head
of department.
[19]
The award is not reviewable on those
grounds. The arbitrator’s conclusion is not so unreasonable
that no other arbitrator
could have come to the same conclusion.
[20]
The further ground raised by the applicant
is the earlier jurisdictional ruling of Commissioner Mbileni. That
commissioner ruled
that the Bargaining Council (the second
respondent) did have jurisdiction to arbitrate the dismissal dispute
referred to it by
the applicant. In the course of his evaluation, he
expressed the opinion that the relevant subsection was incorrectly
applied and
that the Department should have followed “the
incapacity route”.
[21]
The
arbitrator (the first respondent) was obviously not bound by the
views expressed by the previous commissioner when he made his
jurisdictional ruling. The arbitrator considered all the evidence
that was led before him. He approached the arbitration and reached
his conclusion in accordance with the guidelines recently set out by
the Labour Appeal Court in
Goldfields
:
[9]
“
(i)
In terms of his or her duty to deal with the matter with the minimum
of legal formalities, did the process that the arbitrator
employed
give the parties a full opportunity to have their say in respect of
the dispute? (ii) Did the arbitrator identify the
dispute he or she
was required to arbitrate? (iii) Did the arbitrator understand the
nature of the dispute he or she was required
to arbitrate? (iv) Did
he or she deal with the substantial merits of the dispute? (v) Is the
arbitrator’s decision one that
another decision-maker could
reasonably have arrived at based on the evidence?”.
[22]
In this case, the arbitrator conducted the
arbitration in exactly these terms. The decision that he arrived at
based on the evidence
before him, was a reasonable one. The
arbitration award is not open to review.
The
second review application: s 158(1)(h) of the LRA
[23]
The Public Service Act makes provision for
the reinstatement of an employee by the MEC. Section 17(5)(b)
provides that:
“
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) [i.e. after a calendar month’s absence] the relevant
executing authority
[10]
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.”
[24]
The
MEC, Mr Theuns Botha, gave no reasons for his decision. The decision,
embodied in his letter to the employee of 30 March 2010,
is as devoid
of reasons as were his decisions that were overturned on review by
this Court in
Weder
[11]
and
Mangena
[12]
.
In
those cases, as in this one, the applicant sought to review the MEC’s
decision in terms of section 158(1)(h) of the LRA.
This Court had
regard to its earlier judgements in
De
Villiers
[13]
and
Harri
[14]
and came to the conclusion that the decision of the Labour Appeal
Court in
De
Bruyn
[15]
did not overturn the effect of those judgements.
[25]
In
Weder
[16]
this Court pointed out that it is difficult to assess whether a
decision could have been reasonable and rational when the
decision-maker
offers no reasons for the decision. And in
CUSA
v Tao Ying Metal Industries
[17]
the Constitutional Court said:
“
The
first obligation on an arbitrator in determining a matter is to set
out the reasons, even if only briefly, for any decision.
However, beyond the dicta referred to above, there is no further
discussion in the Commissioner’s award of the text of the
exemption and its meaning. ... If the Commissioner had in
fact applied her mind to the question of the meaning of the
exemption, one would have expected at least some discussion of its
text. This is nowhere evident in the award. In my view,
it
cannot be concluded that the Commissioner did apply her mind to the
meaning of the exemption.”
[26]
The same must hold true of the MEC’s
decision. Without him having given any reasons for his decision, it
cannot be said to
be reasonable. How can it be ascertained if it was
reasonable, if he gave no reasons? It simply begs the question.
[27]
The
High Court recently reiterated that principle in
Cape
Bar Council v Judicial Service Commission
[18]
when it quoted with approval the following dictum
:
‘
(T)he
duty to give reasons when rights or interests are affected has been
stated to constitute an indispensable part of the sound
system of
judicial review. Unless the person affected can discover the reason
behind the decision, he or she may be unable to tell
whether it is
reviewable or not and so may be deprived of the protection of the
law. Yet it goes further than that.
The giving of reasons
satisfies the individual that his or her matter has been considered
and also promotes good administrative
functioning because the
decision makers know that they can be called upon to explain their
decisions and thus be forced to evaluate
all the relevant
considerations correctly and carefully. Moreover, as in the present
case, the reasons given can help to crystallize
the issues should
litigation arise'
[19]
.
[28]
And,
as Cora Hoexter notes, “the giving of reasons is commonly
regarded as one of the more fundamental requirements of
administrative
justice and an important component of procedural
fairness.”
[20]
And s
5(3) of the Promotion of Administrative Justice Act
[21]
enjoins a reviewing court to presume, if no reasons are given, that
the administrative action was taken without good reason.
[29]
The Department’s Deputy Director for
Labour Relations, Faizel Rodriques, attempts to provide reasons for
the MEC’s decision
in his answering affidavit. But he is not
the executing authority in terms of the Public Service Act and the
powers of the MEC
to decide on reinstatement have not been delegated
to him. Rodriques represented the Department at the arbitration. The
MEC did
not depose to so much as a confirmatory affidavit. Rodriques
states that the MEC “considered” various documents and
“took into account that the applicant’s representations
did not challenge the validity of the second medical opinion
that
there was nothing wrong with Ms Smit’s knee and that she could
carry out her functions. Finally, the MEC, in light of
Ms Smit’s
failure to respond to the letters sent to her to return to work,
considered the continued employment relationship
intolerable.”
[30]
All of this constitutes inadmissible
hearsay. There is no indication how this information is within
Rodriques’s personal knowledge
and there is no affidavit by the
MEC. Quite simply, there is no evidence before the Court that the MEC
applied his mind to the
applicant’s representations and how he
came to the decision not to reinstate the employee.
[31]
In these circumstances, the MEC’s
decision is irrational and unreasonable. It must be reviewed and set
aside.
Conclusion
[32]
The application for review of the
arbitration award in terms of s 145 of the LRA is dismissed. The
application for review of the
MEC’s decision in terms of s
158(1)(h) of the LRA is upheld.
[33]
It is for the MEC, and not for this Court,
to apply his mind to the applicant’s representations properly.
The matter should
be remitted to him to consider the representations
made in terms of s 17(5)(b) of the Public Service Act.
[34]
With regard to costs, I take into account
that neither party was entirely successful. The employee is being
represented by her trade
union and she will not be personally out of
pocket. In law and fairness, a costs order is not appropriate.
Order
[35]
I therefore make the following order:
35.1
The application for the review of the first
respondent’s award in terms of s 145 of the LRA is dismissed.
35.2
The decision of the fourth respondent (the
MEC for Health, Western Cape) is reviewed and set aside in terms of s
158(1)(h) of the
LRA.
35.3
The matter is remitted to the fourth
respondent for a fresh decision in terms of s 17(3)(b) of the Public
Service Act.
35.4
The fourth respondent must make his
decision within 30 days of this judgment and he must present the
applicant with full reasons
for his decision.
35.5
There is no order as to costs.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
C
J May of Adams & May attorneys.
THIRD
AND FOURTH RESPONDENTS:
E
A de Villiers-Jansen
Instructed
by the State Attorney, Cape Town.
[1]
Public Service Act, 1994 (Proclamation 103 of 1994). Section 17(5)
of the Act has been substituted by
section 25
of the
Public Service
Amendment Act 30 of 2007
, and is now subsection 17(3)(a) and (b) of
the Public Service Act.
[2]
Act 66 of 1995 (the LRA).
[3]
Grootboom
v National Prosecuting Authority & another
[2014] 1 BLLR 1 (CC).
[4]
Phenithi
v Minister of Education & others
2008 (1) SA 420 (SCA), [2006] 9 BLLR 821 (SCA).
[5]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
(2007) 28
ILJ
2405 (CC).
[6]
Seema v
GPSSBC & others
[2005] 11 BLLR 1142 (LC).
[7]
At para [20].
[8]
Herholdt
v Nedbank Ltd
[2013] 11 BLLR 1074 (SCA).
[9]
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).para [20].
[10]
In this case, the MEC for Health (the fourth respondent).
[11]
Weder v
MEC for the Department of Health, Western Cape
[2013]
1 BLLR 94 (LC).
[12]
DENOSA
obo Mangena v MEC for the Department of Health, Western Cape
[2013]
5 BLLR 479 (LC).
[13]
De
Villiers v Head of Department: Education, Western Cape
(2010) 31
ILJ
1377 (LC).
[14]
National
Commissioner of the South African Police Service v Harri N.O.
(2011) 32
ILJ
1175 (LC).
[15]
PSA obo
De Bruyn v Minister of Safety & Security
[2012]
9 BLLR 888 (LAC).
[16]
Supra
at para [35].
[17]
[2009] 1 BLLR 1
(CC) para [140]-[141].
[18]
[2012] 2 All SA 143
(WCC) para [30].
[19]
’
[Footnotes
omitted] (per Mokgoro and Sachs JJ in their minority judgment in
Bel
Porto
School Governing Body and Others v Premier, Western Cape and Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC) para 159).
[20]
Hoexter,
Administrative
Law in South Africa
(Juta
2007) at 413.
[21]
Act 3 of 2000 (PAJA).