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[2015] ZALCD 44
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Nhlebela v MEC for Education and Another (D687/10) [2015] ZALCD 44 (31 July 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA,
DURBAN
REPUBLIC
OF SOUTH AFRICA
Case
No D687/10
DATE:
31 JULY 2015
Not
Reportable
In
the matter between:
NOKUTHULA
VERONICA
NHLEBELA
.............................................................................
Applicant
And
MEC
FOR
EDUCATION
............................................................................................
First
Respondent
HEAD
OF DEPARTMENT OF
EDUCATION
......................................................
Second
Respondent
Heard:
18 December 2013
Delivered:
31 July 2015
JUDGMENT
ALEXANDER
AJ
Introduction
1
This is an application, in terms of Section
158(1)(h) of the Labour Relations Act 66 of 1995 (“the LRA”),
to review
and set aside the decision of the second respondent not to
approve the applicant’s reinstatement after she was deemed to
be discharged in terms of Section 17 of the Public Service Act,
1994. There is also an application for condonation for the
late
filing of the applicant’s review application, which is opposed.
2
Both parties have incorrectly stated that
the application for reinstatement and the second respondent’s
refusal was made in
terms of Section 17(5)(a) of the Public Service
Act. The Public Service Act was amended in terms of Section 43
of the Public
Service Amendment Act, No. 30 of 2007, with effect from
1 April 2008 and the relevant section is Section 17(3)(a) and (b) and
not
Section 17(5).
3
Section 17(3) reads as follows:
“
(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
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)…
(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
…”
Background
facts in relation to the filing of the review application
4
The applicant was absent from work from 20
February 2008 and was discharged on 2 September 2008 on account of
misconduct in terms
of Section 17(3)(a)(i) of the Public Service
Act. The applicant made a written application for reinstatement
to the Reinstatement
Committee, in terms of Section 17(3)(b), in a
letter, dated 20 November 2008. Reinstatement was refused by
the Reinstatement
Committee seven months later in a letter, dated 30
June 2009, which was signed by Dr RC Lubisi, the Superintendent
General, on
3 July 2009.
5
The applicant’s union, NUPSAW,
referred an unfair dismissal dispute on behalf of the applicant to
the General Public Service
Sectoral Bargaining Council (“the
Bargaining Council”) on 11 August 2009. It was not
settled at conciliation
on 3 September 2009 and nor was the issue of
jurisdiction raised by the second respondent at this meeting.
The matter was
subsequently set down for arbitration some ten months
later on 2 July 2010. At a pre-arbitration conference held
prior to
the arbitration, the representative for the second
respondent explained that the second respondent intended raising a
point
in limine
at the arbitration that the Bargaining Council had no jurisdiction to
arbitrate the dispute because the applicant had not been
dismissed in
terms of the LRA, and instead her employment had been terminated by
operation of law in terms of Section 17 of the
Public Service Act.
At the arbitration, the applicant accepted that the termination of
her employment was by operation of
law and proceeded to withdraw the
dispute.
6
The applicant launched this review
application on or about 9 September 2010. The application was
launched 453 days after the
second respondent refused to approve the
reinstatement of the applicant.
The
law in relation to condonation applications
7
This is an application in terms of Section
158(1)(h) of the LRA, which is required to be lodged within a
reasonable time unless
good cause is shown.
8
In
Melane
v Santam Insurance Company Limited
[1]
,
the court held:
“
On
good cause shown, the Court may permit the employee to refer dispute
after the relevant time limits have expired. In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has discretion, to be exercised judicially upon
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are
the degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily
these facts
are interrelated: they are not individually decisive, for that would
be a piecemeal approach incompatible with a true
discretion, save of
course that if there are no prospects of success there would be no
point in granting condonation.”
Applicant’s
condonation application
9
Degree of lateness
9.1
As stated above, the applicant’s
review application was lodged 453 days after the second respondent
refused to approve her
reinstatement. This is an exceptionally
long delay which requires a very good explanation.
10
Explanation for the delay
10.1
The applicant’s explanation for the
delay is that it was her trade union that made the incorrect decision
to refer the dispute
to the Bargaining Council and that her review
application was filed within a period of six weeks after the matter
was withdrawn
at the Bargaining Council.
10.2
The applicant’s union referred an
unfair dismissal dispute approximately five weeks after her written
application for reinstatement
was dismissed and launched this
application approximately two months after the withdrawal of the
referral to the Bargaining Council.
The major reason for the
delay from September 2009 until July 2010 was as a result of the
failure by the Bargaining Council to
set the matter down for
arbitration. Had the Bargaining Council set the matter down for
arbitration earlier or the second
respondent raised the issue of
jurisdiction at conciliation, the unfair dismissal dispute would have
been withdrawn earlier and
this review application would have been
launched earlier than September 2010.
11
Prospects of success
11.1
In relation to the prospects of success, I
am required to determine whether the applicant has good prospects of
success in reviewing
and setting aside the decision of the second
respondent refusing to approve reinstatement. The salient facts
are set out
below.
11.2
In January 2007 the applicant got stuck in
the Cango Caves for approximately ten hours, was taken to the Karoo
Private Clinic and
was discharged the following day. She
suffered a bruised abdomen, experienced spinal pain and a nervous
breakdown.
She initially attended the Crompton Hospital in
Pinetown and was later referred to a neurologist at the Westville
Hospital which
did not ease her pain and nervousness. After
attending various hospitals and receiving treatment from various
doctors, she
was advised to attend a traditional healer. She
discussed her situation with the Assistant Director, Mr RZ Khumalo,
who understood
her circumstances. There is no affidavit from
Khumalo disputing that the applicant discussed her situation with him
at the
time.
11.3
When the applicant did not report for work
from 20 February 2008, the second respondent sent her a letter, dated
17 March 2008,
requiring her to report for duty immediately, and
certainly by no later than 26 March 2008, with proof that she had
been booked
off sick by her doctor.
11.4
After the applicant received the second
respondent’s letter, dated 17 March 2008, the applicant
addressed a letter to the
second respondent, dated 27 March 2008,
stating that she had been seriously ill, that she was being treated
by a traditional healer
and not a medical doctor and therefore did
not have any medical certificates. She further stated that she
could not say when
she would be returning to work but promised that
she would resume her duties as soon as she recovered. She
requested the
second respondent to use her capped leave of absence
for the 25 working days that she had been absent from 20 February to
27 March
2008. Attached to this letter was an application for
leave of absence for the period 20 February to 27 March 2008.
11.5
Before the second respondent received the
applicant’s response, the second respondent sent a further
letter to the applicant,
dated 28 March 2008, stating that she had
not responded to the first respondent’s letter, dated 17 March
2008, and requiring
the applicant to provide medical certificates by
no later than 4 April 2008, failing which the contract of employment
would be
terminated in terms of Section 17(1) of the Public Service
Act. Section 17(1) refers to a dismissal in terms of the LRA
and
not a dismissal in terms of the Public Service Act.
11.6
After the first respondent received the
letter from the applicant, dated 27 March 2008, the second respondent
sent a further letter
to the applicant, dated 7 April 2008, stating
that she was required to produce a medical certificate from a
recognised medical
doctor on or before 16 April 2008 and that the
second respondent could only appoint a substitute in her absence if
capped leave
was approved for her. She was told if she did not
provide a medical certificate disciplinary action would be taken
against
her. She was not told that she would be discharged by
operation of law in terms of the Public Service Act. In her
affidavit,
the applicant states that she received this letter from
the first respondent on 20 May 2008 and on the same day had an
appointment
with Dr Ashwin Valjee, a specialist psychiatrist.
11.7
Mrs Masondo, who was the applicant’s
Supervisor, recommended to the Director: Labour Relations in a
letter, dated 25 April
2008, that a charge of insubordination and
misconduct should be laid against the applicant, alternatively she
should be boarded
on the basis of ill health and inability to perform
her operational duties.
11.8
The applicant telephoned Ms PFL Gumede, the
State Accountant: Budget, and asked her to collect the medical
certificates from her.
It is not clear from the application
papers when exactly the medical certificates were collected from the
applicant.
11.9
The proof provided by the applicant for her
absence for illness or injury for the period from 20 February 2008
was as follows:
11.9.1
No medical certificate for the period 20
February until 20 March 2008 (although the applicant did state that
she was receiving treatment
from a traditional healer for therapy and
convalescence);
11.9.2
A medical certificate from Dr Ashwin
Valjee, stating that the applicant was suffering from a severe
depressive episode and post-traumatic
stress disorder and should take
sick leave for the period 20 March until 21 May 2008 and that she was
in need of long term therapy;
11.9.3
A medical certificate from Mrs J Thabethe,
a counselling psychologist, who confirmed that she was rendering
psychotherapeutic services
to the applicant from 20 May 2008;
11.9.4
No medical certificate for the period of
absence from 22 May 2008 until 30 June 2008;
11.9.5
A medical certificate from Dr Ashwin Valjee
stating that she should be on sick leave from 1 July until 31 July
2008 for therapy
and convalescence and that she was in need of long
term therapy;
11.9.6
A medical certificate from Dr Ashwin Valjee
stating that she required therapy and convalescence and should take
sick leave from
1 August 2008 until 31 August 2008 and that she was
in need of long term therapy;
11.9.7
A medical certificate from Dr Ashwin Valjee
stating that she should take sick leave from 1 to 30 September 2008
for therapy and
convalescence and that she was in need of long term
therapy.
11.10
The second respondent informed the
applicant in a letter, dated 2 September 2008, that the applicant had
been discharged from service
on the grounds of misconduct by
operation of law, in terms of Section 17(5)(a)(i) of the Public
Service Act (as stated above, at
that stage Section 17(5)(a)(i) had
been repealed and replaced with Section 17(3)(a)(i)). This was
the first correspondence
between the parties since May 2008.
The applicant was told that she was entitled to apply for
reinstatement by showing good
cause through furnishing proper and
substantive reasons for her absence.
11.11
The applicant made submissions for
reinstatement in a letter to the Reinstatement Committee, dated 20
November 2008, which stated
as follows:
11.11.1
In January 2007 she was trapped in the
Cango Caves and thereafter suffered a great deal of pain but
continued to work;
11.11.2
When the pain became so unbearable she
approached management (Masinga and Khumalo) for capped leave, which
was agreed to between
all the parties;
11.11.3
In May 2008 she received a letter from
Khumalo (dated 7 April 2008) requiring her to produce a medical
certificate from a recognised
medical doctor on or about 16 April
2008;
11.11.4
She duly provided four medical certificates
from Dr Ashwin Valjee and one from Mrs J Thabethe;
11.11.5
At all times she made her superiors aware
of her whereabouts.
11.12
The Reinstatement Advisory Committee
considered the applicant’s request for reinstatement and
highlighted that:
11.12.1
The applicant had not provided proof from a
medical practitioner of the injuries or pain that she was suffering
from;
11.12.2
In relation to her allegation that her
supervisors knew of her absence, the letters, dated 17 and 28 March
2008, from Masinga to
the applicant reflected that her supervisors
did not know the reasons for her absence, and called upon her to
provide proper medical
certificates and warned her of the
consequences;
11.12.3
She did not have permission to be absent
from work and she did not submit leave forms for the period 20
February until 20 May 2008.
11.13
On the basis that the applicant had failed
to provide medical certificates as an explanation for her absence,
the Reinstatement
Advisory Committee made a recommendation that she
had not shown good cause and accordingly the applicant ought not to
be reinstated.
The findings of the Reinstatement Advisory
Committee were confirmed in a letter from the Reinstatement Committee
to the applicant,
which was approved by the Superintendent General on
3 July 2009 (which was approximately eight months after the applicant
made
her submissions for reinstatement).
Decision
on the condonation application
12
The delay in launching the review
application is exceptionally long and requires a very good
explanation. It is true that
NUPSAW should have known that the
Bargaining Council does not have jurisdiction to arbitrate these
types of disputes and that a
review application, such as this, should
have been launched within a reasonable time of the decision of the
Reinstatement Committee
not to reinstate the applicant. Having
said this, the reasons for the delay include the second respondent’s
failure
to raise the issue of jurisdiction at the conciliation
meeting and the ten month delay by the Bargaining Council in setting
the
unfair dismissal dispute down for arbitration.
13
Notwithstanding the long delay, I am
satisfied that the applicant enjoys extremely strong prospects of
success and for this reason
the applicant is granted condonation for
the late filing of this review application.
The
law in relation to Section 17
14
In
MEC
for the Department of Health, Western Cape v Weder, In Re: MEC for
the Department of Health, Western Cape v Democratic Nursing
Organisation of South Africa obo Mangena
[2]
the
Court held that the decision of the
MEC
for the Department of Health
(in that case) not to reinstate the employee is open to review in
terms of Section 158(1)(h) of the LRA on the grounds of legality.
The principle of legality is a parallel system of review for action
which falls outside of the strict definition of administrative
action
as provided for in the Promotion of Administrative Justice Act 3 of
2000.
15
In
Pharmaceutical
Manufacturers, Association of South Africa and Another
:
[3]
the Court layed down the core elements of legality as follows:
“
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect
arbitrary and
inconsistent with this requirement. It follows that in order to
pass constitutional scrutiny the exercise of
public power by the
Executive and other functionaries must, at least, comply with this
requirement.”
16
In
Democratic
Alliance v President of the Republic of South Africa and Others
[4]
Yacoob
ADCJ held,
“
If
in the circumstances of a case, there is a failure to take into
account relevant material that failure would constitute part
of the
means to achieve the purpose for which the power was conferred.
And if the failure had an impact on the rationality
of the entire
process, then the final decision may be rendered irrational and
invalid by the irrationality of the process as a
whole.”
17
In
Judicial Service Commission and Another v Cape Bar Council and
Another
[5]
a further requireme
nt
was
added to the principle of legality,:
“
As
to rationality, I think it is rather cynical to say to an affected
individual: you have a constitutional right to a rational
decision
but you are not entitled to know the reasons for that decision.
How will the individual ever be able to rebut the
defence by the
decision-maker: ‘Trust me, I have good reasons, but I am not
prepared to provide them?’ Exemption
from giving reasons
will therefore almost invariably result in immunity from an
irrationality challenge.”
18
In
De
Villiers v Education, Western Cape Province
[6]
Van
Niekerk J (dealing with
S14(2)
of the
Employment of Educators Act 76
of 1998
) said: “
no
other employer enjoys the right to consider reinstatement of its
employee within its sole discretion”. The requirement
of
“good cause” should be interpreted to mean “that
unless the employer, having regard to the full conspectus
of relevant
facts and circumstances is satisfied that a continued employment
relationship has been rendered intolerable by the
employee’s
conduct, the employer should as a general rule approve the
reinstatement of the employee”.
19
Van Niekerk J held further that a contrary
finding would represent a breach of an employee’s right to fair
labour practices
and the right to equality (since the respondent in
this type of case is treated in a manner which grossly departs from
the manner
in which other employees in a similar position are
treated). The requirements of legality prevent the employee
from being
helpless pursuant to an employer’s arbitrary
decision. In particular, given an employee’s rights to
fair labour
practices, the decision must be tested for rationality.
Application
of the law to the facts
20
In her application for reinstatement to the
Reinstatement Committee, the applicant stated that she was under
incredible pain after
an accident at the Cango Caves near George in
January 2007 and therefore she approached her immediate supervisor at
the time, Masinga,
and the Assistant Director, Khumalo, to apply for
capped leave, which was agreed to between all the parties. She
also provided
a detailed explanation for her absence from work,
together with medical certificates, and stated that at all times her
superiors
were made aware of her whereabouts, and in particular
Londiwe Gumede, her supervisor at the time, knew her whereabouts and
was
in constant contact with her.
21
The application came before the
Reinstatement Committee on 26 February and 26 March 2009. The
minutes reflect that it was
agreed that she could take capped leave
and that her supervisors knew of her whereabouts and failed to
contact her. Furthermore,
she had presented medical
certificates for the periods 20 March to 21 May 2008, 23 May to 30
June 2008 and 1 to 31 August 2008.
The minutes further reflect
that the Committee required submissions from the Service Centre, a
response to whether her supervisors
knew of her absence and failed to
contact her and whether she had submitted leave forms or had the
permission of her employer to
be absent from work.
22
The minutes reflect that the Committee
reconvened on 26 March 2009 and considered that the applicant had
been told in a letter from
the second respondent, dated 7 April 2008,
to provide medical certificates from recognised medical practitioners
for her periods
of absence. The minutes further record that her
supervisors did contact her and warn her that her explanations for
her absences
were unacceptable and called upon her to provide proper
medical certificates and warned her of the consequences. The
minutes
also record that she did not submit leave forms or have the
permission of the second respondent to be absent. The Committee
concluded that the medical certificates were unacceptable because
they did not provide an explanation for her periods of absence
and
her continued absence from work had prejudiced the employer.
For these reasons, the Committee recommended that she should
not be
reinstated. The minutes reflect that the Committee did not
consider whether the continued employment of the applicant
had been
rendered intolerable by her absence.
23
The Superintendent General approved the
recommendation on 3 July 2009 not to approve the applicant’s
application for reinstatement
because she had not shown good cause
for reinstatement, and the medical certificates that she produced did
not provide a reasonable
explanation for her absence and she had
caused prejudice to her employer. Similarly, the Superintendent
General approved
the recommendation without considering whether the
continued employment of the applicant had been rendered intolerable
by her absence.
24
Whilst the applicant did not provide a
medical certificate for the period from 20 February until 20 March
2008 when she attended
a traditional healer, she did provide medical
certificates from Dr Ashwin Valjee, a specialist psychiatrist, for
most of the period
from 20 March until 31 August 2008. There is
no evidence that the applicant was not suffering from ill health for
this period
and that she wilfully and deliberately failed to provide
the second respondent with reasons for her absence. Since there
is no indication in the minutes of the Reinstatement Committee
meetings on 26 February and 26 March 2009, and in the approval by
the
Superintendent General on 3 July 2009 (or even in the respondents’
answering affidavit) why the continued employment
of the applicant
had been rendered intolerable by her conduct, the reasons for
refusing to reinstate the applicant are arbitrary,
irrational and
unreasonable.
25
Having found that there were inadequate
reasons for rejecting the representations made by the applicant for
reinstatement, it serves
no purpose to remit the dispute to the
second respondent and follows that the applicant ought to be
reinstated retrospective to
the date of her discharge on 20 February
2008. Both parties are responsible for the delay at different
times from September
2008 and therefore the backpay awarded to the
applicant is limited to 12 months.
26
In dealing with the issue of costs, both
parties sought costs and accordingly the respondents are ordered to
pay the applicant’s
costs.
Order
27
I accordingly make the following Order:
27.1
The application for condonation for the
late filing of the review application is granted;
27.2
The decision of the second respondent,
dated 3 July 2009, not to approve the applicant’s reinstatement
is reviewed and set
aside and replaced with a decision reinstating
the applicant retrospective to the date of her discharge on 20
February 2008 with
12 months’ backpay;
27.3
The respondents are ordered to pay the
applicant’s costs.
ALEXANDER
AJ
Appearances:
For
the applicant : M. Mahase
Instructed
by : Ntlokwana and Associates
For
the respondents : Advocate S. Jikela
Instructed
by : State Attorney KZN
[1]
(1962)
4 SA 531 (AD)
[2]
[2014]
7 BLLR 687 (LAC),
[3]
In
re Ex Parte President of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA
674
(CC), at paragraph 85,
[4]
2013
(1) SA 248
(CC) paragraph 39.
[5]
2013
(1) SA 170
(SCA) paragraph 44.
[6]
(2010)
31 ILJ 1377 (LC) at para 30