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[2016] ZALCCT 15
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Jethro v MEC for Department of Education Western Cape Government (C292/2015) [2016] ZALCCT 15 (22 April 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
Number: C292/2015
In the
matter between:
ROLAND
BETRAN JETHRO
Applicant
and
MEC
FOR DEPARTMENT OF EDUCATION
WESTERN
CAPE GOVERNMENT
Respondent
Date
heard: 26 November 2015
Delivered:
22 April 2016
JUDGMENT
RABKIN-NAICKER
J
[1] The
applicant seeks the following relief:
“
(a)
Reviewing, correcting and setting aside in terms of
section 158(1)(h)
of the
Labour Relations Act 66 of 1995
read with
section 6
of the
Promotion of Administrative Justice Act 3 of 2000
the decision of the
respondent taken on 29 November 2013 to dismiss the Applicant in
terms of section 14(1)(a) of the Employment
of Educators Act No. 76
of 1998.
(b)
Substituting the
decision of dismissal with an order of retrospective reinstatement
with full back pay and benefits.
(c)
To the extent that may be necessary, granting condonation for the
late
service and filing of the review application….”
[2] The
applicant was employed as a teacher since 27 March 1995. At the time
of the termination of his employment contract on 1
March 2013, he
occupied the post of Head of Department at Gugulethu Comprehensive
(Intshukumo Secondary) High School, in the Western
Cape. He had been
employed in this post for 17 years.
[3]
Applicant suffered from stress and hypertension which caused lengthy
period s of illness from August 2012 to early 2013. He
was booked off
sick as reflected in medical certificates annexed to the papers from
the 13 to 17 August 2012; 23 to 27 August 2012;
28 August 2012; 9 to
19 October 2012, 23 October 2012 to 16 November 2012; and 19 November
2012 to 10 December 2012.
[4] On 16
December 2012 he was attacked with a blunt instrument at his home in
Hanover Park. He suffered injuries to his neck and
hand. He was
referred by the Hanover Park Community Health Centre Service to
Groote Schuur Hospital. The applicant was then booked
for sick during
January, February and March 2013. On 18 February 2013, Dr Mitchell
Gates, a psychiatrist from Vincent Pallotti
Hospital, certified that
the applicant was suffering from depression and was not ready to
return to work. He booked the applicant
off for a further two weeks
from 18 February 2013 in terms of a medical certificate. Medical
certificates confirming his depression
are contained in the record
provided by the respondent in this application.
[5] The
respondent froze the applicant’s salary for the month of
February 2013, i.e. at the end of January 2013. On 4 April
2013 the
Principal of applicant’s school, Mr Booi (Booi), wrote to the
respondent as follows:
“
Mr
Jethro’s Medical Aid Certificate dated 18/02/2012 was faxed on
the 21 February 2013 at 12h05 and Mr Jethro called me (Mr
Booi) at
12h30 to find out about his salary. I told him that the temporary
incapacity leave for period 25 October 2012 to 16 November
2012 were
still pending and annexure A is requested for the period 25 October
2012 to 11 December 2012 and his salary has been
frozen, could he
please contact Bernie Tataw.
That
was the last time I spoke to Mr Jethro and after the end of his leave
on 01 March 2013, he did not report to work or had in
a Medical
Certificate hence I wrote an attached letter dated 05 March 2013 so
that we could continue having a substitute in his
place until 31
March 2013.”
[6] The
letter referred to by him dated 5
th
March 2013, stated as
follows:
“
This
is to confirm that MR R.B. JETHRO’S (persal no: 51496780) sick
leave ended on the 01 March 2913. He has not contacted
the school or
fax a medical certificate up until Tuesday the 5
th
March 2013, time 14h30. Mr Jethro has been on leave since 25 October
2012 and he has not been proactive in submitting his medical
certificate. Ms Bernie Tataw recommended that I write this letter so
that the IMG can recommend for a substitute while she and
Mr Booi
(principal) are busy with Mr Jethor’s issue of being absent at
school. Ms Bernie Tataw has told Mr Booi that she
has frozen Mr
Jethro’s salary and is ready to take the issue to labour….”
[7] In a
letter dated 9 April 2013 addressed to the Director of Labour
Relations, the Head of Education in the Western Cape Education
Department wrote the following:
“
CONTINUED
ABSENCE FROM DUTY: MR RB JETHRO: INTSHUKUMO HIGH SCHOOL
Mr
Jethro has been absent from duty since 18 January 2013.
He
submitted medical certificates covering the periods 17 January 2013
to 15 February 2013 and from 18 February for another two
weeks (to 1
March 2013). Although submitting medical certificates, he has not
applied for leave of absence in the prescribed manner.
Since then he
has also made no further contact with his supervisor.
The
matter is herewith referred to you for further attention.”
[8] The
record filed by the respondent in this matter contains an email dated
Friday April 19 2013 from a Ms Lee-Ann Bathgate to
Mr Paul Augustinus
Adams and copied to Bernadette Tataw which states, inter alia the
following:
“
We
received the request to abscond and I in turn requested the principal
to determine the whereabouts of Mr Jethro since this was
not done.
Mr
Jethro contend that he stayed absent from work since his salary was
frozen for February 2013 without notification. He was under
the
impression that he no longer had to report for duty.
Upon
perusing his file I noticed that he did submit medical certificates
to warrant his absence. Can you please advise as to why
his salary
was frozen when he substantiated his absence with a medical
certificate.”
[9] The
record of the decision contains the recommendation given to the
Department prepared by Ms Bathgate on the 25 April 2013
to ‘abscond’
the applicant and regard the matter as finalised. The said memorandum
reads as follows:
“
ABSCONDMENT:
MR RB JETHRO: EDUCATOR: GUGELETHU COMPREHENSIVE SECONDARY SCHOOL
(INTSHUKOMO SECONDARY SCHOOL)
[1]
PURPOSE
The
purpose of this submission is to obtain approval to:
(a)
abscond the above-mentioned educator from
duty in terms of section 14(1) (a) of the Employment of Educators
Act, 76 of 1988
and,
(b)
to regard the matter as finalised.
[2]
BACKGROUND
[2.1] On
04 April 2013 the Department received correspondence from Mr Booi,
the principal of the above-mentioned school with regard
to Mr
Jethro’s unauthorised absence. [Folio 01-14]
[2.2]
According to the said correspondence Mr Jethro has been absent since
04 March 2013.
[2.3] An
attempt was made by the principal of Gugulethu Comprehensive
Secondary School, Mr Booi to contact Mr Jethro on 15 April
2013. To
this effect he noted that since his salary was frozen for February
2013, he did not report for duty or submit medical
proof to
substantiate his absence as he was not sure whether he still has a
job. [Folio 15]
[2.4] The
writer consulted with Ms B Tataw, Deputy Director at DLA (M) during
April 2013 on Mr Jethro’s February 2013 salary
that was frozen,
in particular the fact that his medical certificates submitted
covered him for part of this period. He thus had
to get part of his
salary for the period in question. She undertook to reimburse Mr
Jethro for part of his February 2013 salary.
[Folio
16-19]
[2.5] Mr
Booi further noted although Mr Jethro contended that he was not sure
whether he still has a job, no effort was made prior
to 09 April 2013
(the day he visited the school to inquire why his salary has been
frozen) on the status herein.
[2.6] To
date Mr Jethro failed to contact the said school about his
whereabouts and neither did he submit proof to them in order
to
substantiate his absence.
[2.7] Mr
Jethro’s conduct tarnished the image of the school and has a
detrimental effect on the learners.
[2.8] As
a HOD of the school, Mr Jethro dismally failed the learners and his
fellow colleagues.
[3]
COMMENTS
[3.1]
Section 14 (1) (a) of
Employment of Educators Act 1998
, stipulates
that:
“
An
educator appointed in a permanent capacity who is absent from work
for a period exceeding 14 consecutive days without permission
from
the employer, shall unless the employer directs otherwise, be deemed
to have been discharged from service on account of misconduct….”.
[3.2] Mr
Jethro failed to report for duty or inform the employer on his
whereabouts since his last medical proof submitted to substantiate
his absence makes reference to 01 March 2013 and no period hereafter.
[3.3] The
school has been extremely diligent and patient in this regard and Mr
Jethro in turn totally disregarded the workplace
rules herein.
[3.4] Mr
Jethro failed to carry the interest of the learners at heart by being
continuously absent and not informing the school
of his whereabouts.
[3.5]
Only on 09 April did Mr Jethro visit the school to inquire why his
salary was frozen. He did not report for duty.
[3.6] The
writer is of the opinion that this situation must not and can no
longer be tolerated any further as she undermines the
efficiency at
the school.
[3.7] It
is the request of the writer that since Mr Jethro absented for longer
than 14 consecutive days, that approval be granted
that he be
absconded.
[3.8] His
last working day being 01 March 2013.
[4]
RECOMMENDATION
In light
of the above it is recommended that:
(a)
the educator be absconded in terms of
Section 14
(1) (a) of
Employment of Educators Act 1998
and,
(b)
to regard the matter as finalised.
[5]
Attached please find a letter addressed to the educator and a
memorandum to DHA for
your signature should you concur with the
content thereof.
ASD/ LR4:
Ms L Bathgate
DATE:
2013-04-25”
[10] In a
letter sent by the Head of Education on the next day, 26 April 2013,
the following was stated:
“
Dear
Mr Jethro
ABSCONDMENT:
YOURSELF
The
above mentioned matter refers
Please
be advised that according to departmental records, you have been
absent without permission since 02 March 2013.
As
you have failed to report for duty, you are hereby informed that in
terms of section 14(1) (a) of the Employment of Educators
Act, 76 of
1998 (hereinafter referred to as the Act) you are deemed to be
discharged from service on account of misconduct.
Please
be informed that 01 March is considered to be your last working day.
Arrangements are being made for the withdrawal of your
pension
benefits and the recovery of any departmental debt, if applicable.
Furthermore,
your attention is drawn to section 14(2) of the Act, in terms of
which you have the right to make representations against
this
decision. These representations must be forwarded to the Director:
Labour Relations.”
[11] What
is evident from the record of the decision of significance to this
application, is at least the following:
11.1
The applicant’s salary was frozen as of 25 January 2013 before
the period of 14 days
starting 1
st
March 2013, on the basis of which the Department invoked the deeming
provision contained in the Act to terminate his employment.
11.2
The principal of the school only sought to find out the applicant’s
whereabouts on
15 April 2013;
11.3
Although the medical certificates contained in the record reflect
that a psychiatrist at
Vincent Palloti Hospital, Dr Michael Gates,
show that the applicant was suffering from depression and not fit for
work up until
the end of February, this is not highlighted in the
recommendation on ‘absconding’ in any form whatsoever.
[12]
The applicant’s representations are contained in a letter from
the regional secretary of SADTU dated 18 June
2013 and read as
follows:
“
SADTU
Western Cape is registering an appeal against the dismissal of Mr
Jethro on account of abscondment. Mr Jethro feel aggrieved
by sudden
dismissal after he had communicated all his leaves application to
WCED via his Principal. There was no communication
between him and
the employer even as advice that his application for incapacity leave
was decline or his leave was not approved.
He only became aware of
the problem when his salary was blocked and even the Principal never
informed him as he claimed that he
was also surprised by the action
of WCED.
Mr
Jethro is aggrieved because he had informed the Principal of the
School about his absence and submitted all the relevant medical
evidences. According to s14(1)(a) Mr Jethro’s discharge on
account of abscondment had no basis because he communicated
his
absence to the Principal.
Mr
Jethro still have a passion for teaching to mould the future of the
generation of this country. He still need to be given an
opportunity
to fulfil his dream. We therefore humbly requesting that the WCED
relook at it decision and bring back Mr Jethro to
the classroom.”
[13] On
the 27 November 2013, the Head of Department approved a
recommendation from the Acting Director of Labour Relations that
his
application for reinstatement not be approved. The recommendation is
contained in the record and refers to comments by the
Department of
Labour Relations in reference to the application for reinstatement.
The folios referred to in the recommendation
are not contained in the
record of the decision because the respondent avers they comprised a
legal opinion which is privileged.
On the 29 November 2013, the
following letter written by the Head of Education was sent to the
applicant:
“
Dear
Mr Jethro
APPLICATION
FOR RE-INSTATEMENT: YOURSELF
We
refer to your request for reinstatement submitted on 15 November
2013.
Please
be advised that after careful consideration of the representations
and other relevant factors, we hereby confirm your dismissal
in terms
of
section 14(1)(a)
of the
Employment of Educators Act 1998
.
The
afore-mentioned decision is based on the fact that we are not
convinced that you have shown cause for your unauthorised absence
and
cannot therefore consent to your reinstatement.
Arrangements
are being made for the withdrawal of your pension benefits and the
recovery of departmental debt, if any.”
Grounds
of Review
[14] The
grounds of review set out in the founding papers are as follows:
“
G.1
Contravention of sub-sections 6(2)(b),(c) and (d) of the Promotion of
Administrative Justice
Act 3 of 2000 (“PAJA”)- a
mandatory and material procedure or condition prescribed by section
14 (1)(a) of the Act
was not complied with; the dismissal was
procedurally unfair; and was materially influenced by an error of law
50.
In terms of Annexure “RBJ13”, I was booked off for a
further two weeks from 18 February 2013. Contrary to Mr Booi’s
communication to the WCED to the effect that my sick leave had ended
on 1 March 2013, which formed the basis for my deemed dismissal
on 1
March 2013 (Annexure “RBJ20” above), the period of “14
consecutive days absence from work” prescribed
in terms of
section 14(1)(A) of the Act, had not expired. I am advised and
believe that, in these circumstances, the dismissal
is reviewable and
should be set aside.
51.
I had applied for temporary incapacity leave and such application was
still pending, given that no feedback had been given to
me. I verily
point out that the Respondent should have complied with section 7.2
of PILIR, which he failed to do. I annex hereto
marked ANNEXURE
“RBJ39”, a copy of section 7.2 of PILIR. I am advised and
believe that in the light of a pending PILIR
application section 14
of the Act was not of application.
G.2
Contravention of section 6(2)(f) of PAJA- The dismissal was not
rationally connected
to the purpose for which it was taken; the
information before the Respondent and the reasons given for my
dismissal by the Respondent.
52.
I am advised and believe that the purpose of the section 14 (1)(a) of
the Act
is to dismiss an Educator who has absconded and whose
whereabouts were unknown to the Respondent. I verily state that I did
not
abscond and I was not absent without authorisation because I was
genuinely ill and had submitted a just reason for my absence from
work.
53.
Not only did I inform Mr Booi of my illness, but I had also handed in
the relevant medical certificates to him. The Respondent
was
therefore fully aware of the reasons for my absence. Furthermore, the
WCED could easily have contacted me, which it failed
to do. It is
also evident from the exchange of correspondences between Mr Booi and
the WCED, that Mr Booi had in his possession
the relevant medical
certificates, including the last one on which my deemed dismissal was
based (Annexure “RBJ13”).
G.3
Contravention of section 6(2)(e)(V) and (vi) of PAJA in that the
decision to dismiss
me was taken in bad faith and was arbitrary and
capricious.
54.I
am advised and believe that the Respondent had taken the decision of
dismissal in bad faith and such decision was arbitrary
and capricious
because it was contrary to the spirit and letter of paragraphs 5 and
6 of Annexure “RBJ32” (the agreement
of common
understanding) in that:
a.
The WCED did not give me any support, even though my illness related
to depression. The Respondent did not refer my case to the
Employee
Health and Wellness Programme.
b.
Given that I had made an application for incapacity leave and my
illness fell within PILIR, the WCED should not have applied
section
14 of the ACT and was obliged to contact SADTU, which it failed to
do.
c.
I was not untraceable.
d.
The WCED failed to consult with SADTU prior to the deemed dismissal…
G.4
Non-compliance with section 6 off PAJA
and Rule 7A(b) of the Rules of this Honourable Court – Failure
to provide reasons for
decision
…..”
Evaluation
[15]
Section 14 of the EEA provides that:
Section
14(1) of the EEA reads as follows:
'An
educator appointed in a permanent capacity who –
(a)
is absent from work for a period exceeding 14 consecutive days
without
permission of the employer;
(b)
while the educator is absent from work without permission of the
employer,
assumes employment in another position;
(c)
while suspended from duty, resigns or without permission of the
employer
assumes employment in another position; or
(d)
while disciplinary steps taken against the educator have not yet been
disposed of, resigns or without permission of the employer assumes
employment in another position, shall,
unless
the employer directs otherwise,
be
deemed to have been discharged from service on account of misconduct,
in the circumstances where -
(i)
paragraph (a) or (b) is applicable, with effect from the day
following
immediately after the last day on which the educator was
present at work; or
(ii)
paragraph (c) or (d) is applicable, with effect from the day on which
the educator resigns or assumes employment in another position, as
the case may be.'
[16]
Section 14(2) provides as follows:
“
(2)
If an educator who is deemed to have been discharged under paragraph
(a) or (b) of subsection (1) at any time reports for duty,
the
employer may, on good cause shown and notwithstanding anything to the
contrary contained in this act, approve the reinstatement
of the
educator in the educator’s former post or in any other post on
such conditions relating to the period of the educator’s
absence from duty or otherwise as the employer may determine.”
[17] The
respondent has based its defence in these proceedings on the
submission that PAJA is not applicable to the application
before me
because the decision sought to be reviewed was the discharge
contemplated in section 14(1) of the EEA and thus the grounds
for
review provided for in section 6 of PAJA do not arise.
[18] The
manner in which the relief was framed in this application was
problematic. The decision sought to be reviewed was framed
as: “the
decision of the respondent taken on 29 November 2013 to dismiss the
Applicant in terms of
section 14(1)(a)
of the
Employment of Educators
Act No. 76 of 1998
.” The respondent’s decision taken on
the 29
th
November 2013 involved a refusal to reinstate the
applicant in terms of
section 14(2)
of the EEA. It confirmed the
‘deemed dismissal for misconduct’ in terms of
section
14(1)(a)
of the EEA. Although the framing of the relief sought
could have been clearer, given that the date of the decision referred
to is the date of the decision confirming the deemed dismissal (i.e.
that of the decision in terms of
section 14(2)
of the EEA), I find
the prayer sufficiently cogent. The grounds of review on which the
applicant relies cover both
section 14(1)(a)
and
14
(2) of the EEA as
I deal with below.
[19] Does
the decision to refuse the applicant reinstatement in terms of
section 14(2)
of the EEA constitute administrative action? The
respondent has argued that the discharge of an educator is by
operation of law.
There is no doubting this submission. However the
discretion exercised by the MEC in terms of
section 14(2)
demonstrably does amount to administrative action. Dealing with the
similar provision in the Public Service Act i.e. the decision
of a
public service employer in refusing to reinstate an employee in terms
of s 17(5)(b) of PSA, this court in
Grootboom v National
Prosecuting Authority & others (2010) 31 ILJ 1875 (LC)
opined that it constituted the exercise of statutory power vested
in an employer after an employee's employment contract already
terminated, and was therefore administrative action. That matter
subsequently appealed in the LAC, and then in the Constitutional
Court was concerned with section 17(5) (a)(i) of the PSA i.e. the
deemed discharge. The interpretation of section 17 (5) (b) by
Molahleli J in the
Grootboom
matter is respectfully, in my
view correct. I find that it is applicable to the similar provision
in the EEA.
[20]
In
Hendricks
v Overstrand Municipality & another
[1]
,
the LAC found that 'permissible grounds in law' for the purposes of s
158(1)(h) comprise '(i) the grounds listed in PAJA,
provided the
decision constitutes administrative action; (ii) in terms of the
common law ...; or (iii) in accordance with the requirements
of the
constitutional principle of legality ... .' I am therefore of the
view that the bringing of the application in terms of
section
158(1)(h) read with section 6 of PAJA cannot be faulted.
[21] The
respondent has submitted in its answering affidavit, deposed to by
the Head of the Education Department, that the applicant’s
discharge came about when the jurisdictional requirements of section
14(1)(a) of the EEA were satisfied. The applicant has relied
on the
period before March 2013 to submit that the jurisdictional
requirements of section 14(1)(a) were not satisfied. However,
it is
the period which started from 1 March 2013 (being his last day for
which he had a medical certificate) up until the letter
sent in terms
of section 14(1)(a) on the 25 April 2013, that is material. Review
grounds G.1 and G.2 (above) of the application,
which relate to the
requirements of section 14(1) of the EEA, falter on this incorrect
reliance on events before the
dies
relied on by the
respondent.
[22]
In as far as review ground G.3 is concerned, there is no indication
that the respondent applied its mind to the terms of an
agreement it
had entered into with the applicant’s union before the deemed
dismissal was activated by its letter dated April
25 2013. The said
agreement entered into in Education Labour Relations Council
entitled: “Agreed upon Procedure pertaining
to the Policy and
Procedure on Incapacity Leave and Ill-health Retirement (PILIR).”
This was brought to its attention in
the representations on behalf of
applicant. The agreement states in salient part that:
“
5.
SUPPORT TO EMPLOYEES
The
WCED will endeavour to refer all employees absent from duty as a
result of incapacity leave, especially as a result of
depression-related
illnesses, to the Employee Health and Wellness
Programme.
APPLICATION
OF
SECTION 14
OF THE
EMPLOYMENT OF EDUCATORS ACT (EEA),1998
.
6.
The parties agree that the stipulations of
Section 14
of the EEA,
1998, i.e. that an employee will be regarded as absconded, will not
be applied with regard to PILR-cases under normal
circumstances.
However,
should an employee be untraceable and he/she also did not apply for
approval to submit a late application for incapacity
leave, the WCED
may apply the stipulations of
Section 14
after consultation with the
union of which the employee is a member. The union will be granted 5
days to respond to the WCED’s
intentions and if no imputs are
received from the union, the WCED can deal with the case as it deems
necessary.”
(my emphasis)
[23] The
respondent admits in the papers before me that Jethro did apply for
temporary incapacity leave but states that these applications
do not
relate to the period after March 2013. One of these applications,
annexed to the answering affidavit as annexure “PV5”
was
supported by annexure ‘RBJ12’ to the applicant’s
papers, a certificate by a Psychiatrist at Vincent Palloti
Hospital.
The respondent does not deny that such application was still pending
at the time of his ‘abscondment’. The
applicant signed it
on 12 November 2012, and it was in respect of the period 20 November
to 10 December 2012. It is evident from
annexure “PV5”
that it was not processed by the respondent. It is undisputed that
the applicant was traceable after
1 March 2013 as the Principal on
the advice of the respondent did contact him on April 15. It is also
undisputed that that no steps
were taken to refer him to the Employee
Health and Wellness Programme.
[24] The
final ground cited by the applicant is the failure of the Respondent
to give reasons for its decision i.e. not to reinstate
the applicant
in terms of
section 14(2)
of the EEA. In its supplementary affidavit
the applicant avers that it requested the missing folios comprising
the recommendation
regarding applicant’s reinstatement and was
told this was not available as it comprised a legal opinion. The
applicant avers
as a result that: “the respondent has failed to
provide reasons that it is by law required to provide, for its
decision not
to reinstate me.”
[25] In
Baxter’s seminal work ’Administrative Law’ written
before the new constitutional order, the right to reasons
is
discussed at 228:
'In
the first place, a duty to give reasons entails a duty to rationalise
the decision. Reasons therefore help to structure the
exercise of
discretion, and the necessity of explaining why a decision is reached
requires one to address one's mind to the decisional
referents which
ought to be taken into account. Secondly, furnishing reasons
satisfies an important desire on the part of the affected
individual
to know why a decision was reached. This is not only fair: it is also
conducive to public confidence in the administrative
decision-making
process. Thirdly — and probably a major reason for the
reluctance to give reasons — rational criticism
of a decision
may only be made when the reasons for it are known. This subjects the
administration to public scrutiny and it also
provides an important
basis for appeal or review. Finally, reasons may serve a genuine
educative purpose, for example where an
applicant has been refused on
grounds which he is able to correct for the purpose of future
applications.'
[26]
In the absence of reasons one is entitled to draw inferences as to
the conduct of the decision-maker. As was stated in
Dendy
v University of the Witwatersrand and Others
[2005] ZAGPHC 39
;
2005 (5) SA 357
(W)
([2005]
2 All SA 490)
in para 53:
'It
is well established that the failure to give written reasons has an
important bearing on the question whether the decision-maker
or
makers acted in good faith or had been influenced by ulterior or
improper motives.'
[27]
Section 6
(5) (3) of PAJA provides that:
“
(3)
If an administrator fails to furnish adequate reasons for an
administrative action, it must, subject to subsection (4)
[2]
and in the absence of proof to the contrary, be presumed in any
proceedings for judicial review that the administrative action
was
taken without good reason.”
[28]
Given that the respondent has based its case on the non-applicability
of PAJA and did not plead in the alternative that if
PAJA applied,
the decision of 29 November 2013 was not susceptible to review, the
presumption contained in
section 6(5)(3)
applies to its decision of
November 29
th
2013. Further, in respect of the
deemed dismissal provided for in
section 14(1(a)
of the EEA, while in
a strict sense the jurisdictional requirements were met for same, the
Respondent has very laudably reflected
its sensitivity to the
problems of mental illness amongst educators in the agreement
referred to above. I note that the content
of this agreement is in
line with
section 14
of the EEA which provides that an educator who
is absent without permission in terms of
section 14(1)(a):
“
shall,
unless the employer directs otherwise,
be deemed to have been discharged from service on account of
misconduct…..” (my emphasis) .
[29] The
respondent has sought to oppose the applicant’s prayer for
condonation for the late filing of this review and
its
tardiness in filing the supplementary affidavit. I take into account
that discussions between applicant’s union and the
respondent
were still ongoing in March 2014. In addition, in deciding to grant
condonation, I base my decision on the merits of
the matter and on
the interests of justice in general.
[30] In
all the circumstances, I find that the decision taken on November
29
th
2013, to refuse the reinstatement of the applicant in
terms of
section 14(2)
of the EEA, falls to be reviewed and set
aside. I see no reason why costs should not follow the result. I make
the following order:
Order
1.
The decision taken by the respondent on the
29 November 2013 in terms of
section 14
of the EEA is hereby reviewed
and set aside.
2.
The respondent is to reconsider whether it
should approve the reinstatement of Mr Roland Betram Jethro
in his
former post or in any other post on such conditions relating to the
period of his absence from duty or otherwise as the
Respondent may
determine should be reinstated.
3.
The respondent is to pay the costs of the application.
_______________
H. Rabkin-Naicker
Judge of the Labour
Court of South Africa
Appearances:
Applicant:
R. Nyman instructed by Moosa, Waglay & Petersen
Third
Respondent: E. A. De Villiers-Jansen with P. Long instructed by
State Attorney
[1]
(2015) 36
ILJ 163 (LAC);
[2014] 12 BLLR 1170
(LAC) at para 29
[2]
Sub-section
4 provides as follows