About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2015
>>
[2015] ZALCCT 4
|
|
NUPSAW obo Nojekwa v Minister of Health: Western Cape and Another (C650/2012) [2015] ZALCCT 4 (23 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C650/2012
DATE:
23 JANUARY 2015
Not
Reportable
In
the matter between:
NUPSAW
(obo WARREN SIYABULELA NOJEKWA)
..........................
Applicant
And
MINISTER
OF HEALTH: WESTERN CAPE
.............................
First
Respondent
WESTERN
CAPE DEPARTMENT OF HEALTH
...................
Second
Respondent
Date
heard: 6 August 2014
Delivered:
23 January 23 2014
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review a decision by the First
Respondent in terms of section 158(1)(h) of the LRA. The applicant
seeks that :
“
1.
The applicants termination of service, alternatively discharge from
the public service by the second respondent on 14 February
2012 be
set aside.
2.
It is declared that the respondents cannot and could not have invoked
section 17 (3) (a)(i) of the Public Service Act 103 of
1994 on or
about 14 February 2012, with reference to the applicant,
alternatively, that the respondents cannot and could not have
deemed
the applicant had been discharged from the public service on account
of unauthorised absenteeism for a period exceeding
one calendar month
in terms of section 17 (3)(a) (i) of the Public Service Act 103 of
1994.
3.
The decision of first respondent to not approve the
reinstatement of the applicant into the public service pursuant to
deemed discharge, taken at or around 18 April 2012 is reviewed and
set aside.
4.
The respondents are directed to reinstate the applicant into the
employer. The second respondent with effect from 14 February
2012 on
terms and conditions no less favourable than those which applied at
the time, with no loss of remuneration and other benefits.”
[2]
The applicant was employed by second respondent as a transport
officer at Valkenburg hospital from 6 January 1995 until the
date of
his dismissal on 14 February 2012. His service was terminated in
terms of section 17(3)(a)(i) of the PSA. He had started
serving as a
full-time shop steward in accordance with a collective agreement
Resolution 1 of 2003. As from 1 January 2010, he
served his first
term in accordance with the agreement, followed by a second term from
1 January 2011 to 31 December 2011. He service
as a full-time shop
steward was renewable for a final term.
[3]
According to the applicant, his union confirmed its intention to
renew his term as full-time shop steward for the period 1 January
2012 to 31 December 2012 in writing, only on 6 February 2012. This
confirmation was faxed to Valkenburg hospital by an official
of the
Department of Labour Relations of the second respondent. In response
to this notification, the applicant received the notice
of
termination of his employment from Valkenburg.
[4]
NUPSAW then wrote a letter to the Labour Relations Director of the
third respondent dated 15 February as follows:
“
We
are in receipt of the termination of service due to unauthorised
absenteeism of our Full-time Shop Steward receipt of a letter
dated
14 February 2012 from Valkenburg hospital and subsequent
communication from your office, dated the 15 February 2012. (sic)
The
Union has communicated to your office on the 6 February 2012 for the
release of Mr Nojekwa as a FTSS and we understand that
we had
erroneously acted in terms of the FTSS agreement before it was
amended by sending the request to your office and not to
the
institution (Valkenburg hospital). This has only been brought to our
attention by correspondence today 15 February 2012. In
view of the
aforementioned we humbly apologise for any inconvenience caused.
Therefore
we do appeal that the termination be reversed.”
[4]
In reply to the above letter, a letter dated 18 April 2012 was
received by the applicant from the first respondent, which read
as
follows:
“
Dear
Mr Nojekwa
Appeal
against the termination of your services in terms of
section 17
(3)(c) (i) of the
Public Service Amendment Act of 2007
I
have considered the evidence presented to me with regards to your
deemed dismissal and find that your grounds for appeal does
not
justify reinstatement.
I
therefore confirm your deemed dismissal in terms of
section
17(30(a)(i)
of the
Public Service Amendment Act, 2007
.
Kind
regards
Theunis
Botha
Minister
of Health, Western Cape”
[5] On 9 July
2012, the union replied to the first respondent explaining that the
letter it had written to the Director of the Labour
relations and
considered by first respondent was not:
“
as an
appeal, but as a request for that official to intervene on our
member’s behalf as he was aware of our members whereabouts
as
per the record of attendance of the provincial PHSDSBC dated 8
February 2012”.
[6] The union
proceeded to then make formal submissions to the first respondent in
the same document, comprising some seven pages,
plus annexures. The
response to this document was a letter from the Head of Department of
the third respondent stating that:
“
As
directed by the Minister of Health in the Western Cape, the appeal,
as requested by your union on 15 February 2012, was handled
by the
MEC, as the appeal authority. The outcome was communicated to Mr
Nojekwa on 18 April 2012. The MEC cannot deal with another
appeal
which was received almost 5 months after discharging Mr Nojekwa. This
is unfortunately not part of the dispute resolution
process. Your
understanding is appreciated.”
[7]
Section 17(3)
(a) and (b) of the PSA provide that:
“
(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.
(ii)
If such an employee 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 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.”
[8] The wording
of
section 17(3)
(b) makes it clear that the relevant executive
authority (in this case the first respondent) is empowered to make
the decision
to reinstate the employee ‘on good cause shown’.
The report and recommendation to confirm the termination of
employment
provided to the first respondent by the Director of Labour
Relations in order for him to take his decision, stated
inter alia
as follows:
“
The
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.
We have
received a written request for Mr Nojekwa’s reinstatement but
without any motivation or reason why his reinstatement
must be
approved.
”
[9] In other
words, it is clear from the report provided to and signed by the
first respondent, that no motivation or reasons for
the applicant
employee’s reinstatement were before him. It is further
apparent that the Director of Labour Relations did
not ask the
applicant union to provide such reasons or motivation, which his
report confirms were not contained in the letter sent
by the union.
In my view, in such circumstances, the first respondent made his
decision without affording the affected employee
a reasonable
opportunity to make representations to him.
[10] This
application was brought in terms of 158(1)(h) of the LRA which
provides that the Labour Court may-
'review
any decision taken or any act performed by the State in its capacity
as employer, on such grounds as are permissible in
law'.
[11] In
Khumalo
& another v Member of the Executive Council for Education:
KwaZulu-Natal
[1]
the Constitutional Court was dealing with an appeal in a matter
involving a
section 158(1)(h)
review of a decision relating to a
promotion of a government employee. The court per Skweyiya J had this
to say:
“
[28]
To me, the true nature of the application is one for judicial review
under the principle of legality, sought in terms of
s 158(1)(h).
The
principle of legality is applicable to all exercises of public power
not only to 'administrative action' as defined in PAJA.
It
requires that all exercises of public power are, at a minimum, lawful
and rational. Mr Khumalo's promotion is argued to
be unlawful
because of an alleged failure to comply with
s 11
of the PSA…
[29]
The rule of law is a founding value of our constitutional
democracy.It is the duty of the courts to insist that the state,
in
all its dealings, operates within the confines of the law and, in so
doing, remains accountable to those on whose behalf it
exercises
power. The supremacy of the Constitution and the guarantees in the
Bill of Rights add depth and content to the rule of
law. When
upholding the rule of law, we are thus required not only to have
regard to the strict terms of regulatory provisions
but so too to the
values underlying the Bill of Rights.
[30]
Historically, public sector employment and private employment were
regulated by distinct legal regimes in South Africa. Since
the
adoption of the LRA, public sector employment has largely been
synchronized with the legal regulation of employment in the
private
sector. Section 23(1) of the Constitution further provides that
'[e]veryone has the right to fair labour practices'. There
is thus no
longer a general distinction in principle between the protections
afforded to private and public sector employees.
[31] In Chirwa,
this court held:
'The
LRA does not differentiate between the state and its organs as an
employer, and any other employer. Thus, it must be concluded
that the
state and other employers should be treated in similar fashion.'
Nevertheless,
as acknowledged by Ngcobo J in Chirwa (citing the rationale of the
drafters of the LRA):
'The
political dimension of the state as employer, more particularly the
fact that its revenue is sourced from taxation and that
it is
accountable to the legislature, gives rise to unique and distinctive
characteristics of state employment. For example, the
state can
invoke legislation to achieve its purposes as employer and its levels
of staffing, remuneration and other matters are
often the product of
political and not commercial considerations. This uniqueness does
not, however, justify a separate legal framework.'
[32]
In this matter, the constitutional and legislative framework must
inform an approach which does not undermine the hard-won
protections
afforded to public sector employees whilst understanding the
uniqueness of public sector employment.
Of importance is the
demand that decisions are made and executed lawfully, fairly and
expeditiously
….” (my emphasis)
[12] The failure
by the first respondent to provide a reasonable opportunity to the
applicant employee to make submissions before
him, to be heard, in
casu, offends the principle of legality and renders his decision to
refuse reinstatement susceptible to review.
Such an opportunity is
especially important in a section 17 termination, in which an
employee’s only procedural protection
is that provided by
section 17(3)(1)(b). I therefore make the following order:
Order
1. The decision
of the first respondent dated 18 April 2012 confirming the deemed
dismissal of Warren Siyabulela Nojekwa is hereby
reviewed and set
aside;
2. The first
respondent is to reconsider his decision in respect of the deemed
dismissal, taking into account the motivation provided
to him in “the
notice of appeal” dated 9 July 2012.
3. The
respondents are to pay the costs of this application jointly and
severally, the one paying the other to be absolved.
H.
Rabkin-Naicker
Judge
of the Labour Court
Applicant:
P. van Wyk NUPSAW
Third
respondent: Adv Mugenkar instructed by the State Attorney
[1]
(2014) 35 ILJ 613 (CC)