About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 464
|
|
Department of Home Affairs (Limpopo) v General Public Service Sector Bargaining Council and Others (JR1576/14) [2015] ZALCJHB 464 (4 June 2015)
THE
LABOUR COURT OF SOUTH AFRICA,
IN
POLOKWANE
Of
interest to other judges
Case
no: JR 1576/14
In
the matter between:
DEPARTMENT OF
HOME AFFAIRS (LIMPOPO)
First Applicant
And
GENERAL PUBLIC
SERVICE SECTOR BARGAINING COUNCIL
First
Respondent
COMMISSIONER
DANIEL SEOPELA (
N.O.
)
Second
Respondent
NEHAWU OBO L M
RAMOLEFE
Third Respondent
L M RAMOLEFE
Fourth
Respondent
Heard:
21
May 2015
Delivered:
4 June 2015
Summary:
(Review – dismissal for
unauthorised absence – employer dismissing employee for
unauthorised absence after allowing
him to resume work
notwithstanding the provisions of s
17(3)
(a) (i) of the Public Service Act – arbitrator failing to weigh
evidence and disregarding material evidence –
resultant
findings irrational and causing him to ignore the most obvious reason
for the employee’s absence from work owing
to him serving a
criminal sentence)
JUDGMENT
LAGRANGE,
J
Background
[1]
The fourth respondent in this matter, Mr L
M Ramolefe, (“Ramolefe”) was dismissed on 18 June 2013
for being absent from
work without permission for the period 1
October 2012 to 7 and January 2013. The arbitrator found that his
dismissal was substantively
unfair and ordered his reinstatement.
[2]
Ramolefe was employed as an immigration
officer stationed at Beitbridge border post. The circumstances
leading to his absence from
work during the period mentioned was that
he had been charged and found guilty of misconduct which led to him
being suspended for
a period of two months without pay in July 2012.
He was due to return to work on 1 October 2012 but could not do so
because he
was serving a prison sentence as a result of his
conviction on criminal charges arising from the same misconduct for
which he had
been suspended without pay. In terms of the sentence
handed down he had to serve two years imprisonment, of which one was
suspended
for five years.
[3]
The applicant was aware of Ramolefe’s
incarceration and took the view that it was entitled to terminate his
services in accordance
with section 17 (3) (a) (i) of the Public
Service Act who, 1994 as amended, which states:
“
(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.”
[4]
It is trite law that the effect of the section is automatic and
requires no action on the part of the employer to take effect.
However, notwithstanding an automatic termination by operation of the
provision, if an employee does report for duty subsequently
a remedy
is provided in section 17(3)(b) of the Act, which reads:
“
(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.”
[5]
Even though section 17 (3) (a)(i)
automatically terminated Ramolefe’s employment at the end of
October 2012, the applicant
decided to give him an opportunity to
make representations as to why his services should not be terminated
in terms of the provision,
as if it was the applicant that needed to
decide if the section would take effect after he had been absent from
work without permission
for more than a month. A letter to this
effect was given to Ramolefe on 4 November 2012. On 19 November 2012,
Ramolefe responded
saying that once he had a letter instructing him
to return to work and if he then failed to do so only then could the
applicant
consider discharging him. On 12 December 2012, he was
issued with a further letter from the applicant, which noted his
failure
to report for duty since 1 October 2012 and instructed him as
follows:
“
This
letter serves as a reminder that you must report at work immediately.
Failure to do so at the Department will terminate your
services in
terms of section 17 (3 (a) (i) of the Public Service Act (1994) as
amended.”
[6]
Ramolefe was only released from prison on 9
January 2013 and reported for work thereafter. He was allowed to
return to work though
he was placed in another Department and was
charged with unauthorised absence from work without permission for
the period 1 October
2012 until his return to w
ork
in January 2013.
The
arbitrator’s award
[7]
The arbitrator concluded that there had
been a breakdown of communication between Ramolefe and the applicant
because the second
letter to Ramolefe received by him 12 December
2012 did not address his request for a letter advising him when he
should report
for duty. The arbitrator then concluded:
“
It
is my considered view that the absence of the applicant [Ramolefe] is
justifiable on the basis that the applicant asked the respondent
to
give him a letter informing him that he should report for duty.”
[8]
He also concluded that Ramolefe had
complied with the instruction to report for work when he returned
after being released in January
2013. The arbitrator accepted
Ramolefe’s version that he had been orally advised that he
could expect a letter advising him
of the date when he should return
because the arbitrator took the view that the letter received on 12
December 2012 did not address
Ramolefe’s request for such a
letter. At this juncture it must be mentioned that the Ramolefe’s
version of receiving
such advice really was not put to the
applicant’s witness under cross examination. The arbitrator
also decided that the applicant
had not utilised section 17 (3 (a)
(i) because it had proceeded to charge Ramolefe with misconduct.
The
review
[9]
A number of grounds of review were raised
and it is not necessary to deal with all of them except those which
merit consideration.
Amongst those which stand out in this regard is
a complaint that the Commissioner committed gross misconduct by
failing to appreciate
that Ramolefe’s failure to report for
duty was on account of being convicted of a crime committed in the
course of his duties.
Further, it contended that the Commissioner had
exceeded his powers by reinstating Ramolefe who had been dismissed
automatically
by virtue of the operation of section17 (3 (a) (i).
Lastly, the applicant claims that the arbitrator’s conclusion
was one
that no reasonable arbitrator could have arrived at on the
evidence before him.
[10]
I have some sympathy with the arbitrator’s
finding that the applicant did not ‘follow’ section17 (3
(a) (i). It
seems that the applicant had erroneously believed that it
had an election whether or not the section took effect. Instead of
simply
waiting for the thirty day period to elapse and then dealing
with Ramolefe on his return to work in terms of section 17 (3) (b),
the applicant sought representations from Ramolefe before he had
attempted to returned to work, but after the section had actually
taken effect. The applicant added to the confusion by allowing
Ramolefe to return to work upon his release and then invoking
ordinary
disciplinary proceedings as if section17 (3) (a) (i) had not
taken effect. The applicant criticises the arbitrator for ignoring
the automatic consequences of that section, whereas it did so itself.
[11]
In any event, the real question is whether
or not the arbitrator’s finding that Ramolefe’s dismissal
was substantively
fair for his unauthorised absence from work after
allowing him to resume employment. In this regard, the applicant is
on a sound
footing. Firstly, he improperly attached decisive weight
to Ramolefe’s claim that he had been advised orally to expect a
letter advising him of the date he should report for duty without
even considering the fact that this version had not been raised
with
the applicant’s witness. Secondly, he found that Ramolefe’s
failure to return to work was justifiable on this
basis alone, as if
Ramolefe’s continued absence from work after the cessation of
his suspension at the end of September 2012
was owing to the failure
of the applicant to specify a date for returning to work.
[12]
Thirdly, the arbitrator could only arrive
at his conclusion that Ramolefe’s continued absence was
justified by a completely
disregarding the unambiguous instruction
contained in the second letter he had received on 12 December 2012.
That letter unequivocally
instructed Ramolefe to report for work
“immediately”, which meant he should do so without delay.
Even if the arbitrator
believed the applicant was obliged to specify
the date for Ramolefe to return to work, the instruction in the
letter clearly was
telling Ramolefe that his presence at the
workplace was expected without any further delay. The arbitrator
avoided the most obvious
inference of the fact that Ramolefe failed
to report until the second week of January 2013 despite receiving the
applicant’s
letter on 12 December 2012, namely that he did not
do so because he was still in prison as a result of being convicted
of a crime,
not because he was not sure when he should do so. It was
completely disingenuous of the arbitrator to treat the reason for
Ramolefe’s
continued absence as being based on a lack of
clarity from the applicant about when he should report for work.
Incidentally, the
arbitrator did not even consider that it should not
have been necessary for the applicant to even remind Ramolefe of his
obligation
to return to work once his period of suspension without
pay had ended. The arbitrator’s failure to consider the
glaringly
obvious reason for Ramolefe’s absence made it
necessary for him to adopt a completely distorted explanation for it,
which
also necessitated him ignoring the need to weigh evidence or,
worse still, disregarding the unambiguous import of the letter of
12
December 2012.
[13]
In the circumstances, the arbitrator’s
finding is not one that a rational arbitrator could have reached on
the evidence before
him and his award must be set aside.
[14]
In reconsidering the arbitrator’s
finding that Ramolefe’s dismissal was substantively unfair, it
is apparent that the
reason for his inability to report for work at
the conclusion of his own paid suspension was his conviction of a
crime relating
to the same misconduct and accordingly the reason for
his absence, though involuntary, was a direct consequence of his own
action,
and not the result of some fortuitous event beyond his
control which befell him, such as an accident. In those
circumstances, the
sanction of dismissal was not inappropriate in my
view.
Order
[15]
The arbitration award of the second
respondent dated 20 April 2014 under case number GPPC1447/2013 is
reviewed and set aside.
[16]
The second respondent’s finding that
the fourth respondent’s dismissal was substantively unfair is
substituted with
a finding that his dismissal was fair.
[17]
No order is made as to costs.
_____________________
R
LAGRANGE, J
Judge
of the Labour Court
Appearances:
For
the Applicant:
X Matyolo
Instructed
by:
H Maponya
For
the Third and Fourth Respondents: P M Ramoshaba
Instructed
by:
Ndekwe Attorneys