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[2016] ZALCCT 39
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Galant v National Commissioner of the South African Police and Another (C333/2015) [2016] ZALCCT 39 (13 October 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C333/2015
Not
Reportable
In
the matter between:
URSULA
CONSTANCE
GALANT
Applicant
and
THE
NATIONAL COMMISSIONER OF
THE
SOUTH AFRICAN
POLICE
1st Respondent
THE
PROVINCIAL COMMISSIONER OF
THE
SOUTH AFRICAN POLICE: WESTERN
CAPE
2
nd
Respondent
Heard:
March 23 2016
Delivered:
October 13 2016
JUDGMENT
RABKIN-NAICKER,
J
[1]
The applicant (Galant) seeks the inter alia following relief:
“
1.
That the decision of the First and/or Second Respondents to discharge
the Applicant
in terms of section 17(3) of the Public Service Act is
reviewed and set aside;
2.
The First and Second Respondent shall reinstate the Applicant with
retrospective
effect from the date of discharge.”
[2]
Galant was informed on the 28 November 2014 that her employment had
terminated in terms of s 17(3)(a)(i) of the PSA and that
the
termination was effective from 21 November 2014. She was informed of
her right to make representations for her reinstatement
in terms of
section 17(3)(b) of the PSA.
[3]
On 26 March 2015, the following letter was received by her headed
“Consideration: Dismissal 17(3)….”:
“
1.
Your representations dated 2014-12-10, 2015-02-06 and 2015-02-18
refer.
2.
Having regard to the contents of your representations, the Provincial
Commissioner
decided that you failed to provide the employer
sufficient reasons justifying your absence, in that:
-
you were informed that should you fail to resume your duties within
one month from 2014-10-20 you will be deemed to be dismissed in terms
of Section 17(3)(a) (i) of the Public Service Act 1994.
-
you had no authority for being absent from 2014-10-20 until
2014-11-20;
3.
You failed to furnish the employer with good cause to have you
reinstated.
4.
Your re- instatement is thus not approved.”
[4]
Galant’s founding affidavit sets out the legal basis for the
review she seeks .She states in paragraph 4 of the affidavit
that:
“
This
is an application in terms of
section 158(1)(h)
of the
Labour
Relations Act 66 of 1995
against a decision of the Provincial
Commissioner of the Western Cape to discharge me in terms of section
17(3)(a)(i) of the Public
Service Act 103 of 1994.”
[1]
[5]
In her affidavit she states that:
“
I
respectfully submit that the discharge in terms of section 17(3)(a)
was unlawful. The employer was fully aware of my ill health
which
arose from an injury on duty. I further submit that the officers who
visited me on numerous occasions had a duty to inform
me about the
correct procedures to be complied with during a long sick leave
period – i.e. the applications for temporary
and permanent ill
health with paid sick leave. I was advised that the PILR provides for
a duty on fellow employees to assist in
situations where the
’patient’ is not in a position to comply with the legal
requirements of the policy.
The
employer knew from the outset what the reasons for my absence were,
they knew about the hospitalization and the mental condition,
yet,
despite the medical certificates and the proof of hospitalization,
Colonel van Lill discharged me for desertion in terms of
section
17(3).”
[6]
Colonel van Lill is the Provincial Commander: Firearms, Liquor &
Second Hand Goods Control: Western Cape, heading the unit
in which
Galant was based. He was signatory to the letter she received in
terms of section 17(3)(a).
[7]
No reference is made in the founding papers to a review of the
decision taken by the second respondent in terms of section 17
(3)
(b) of the PSA. That section provides that if an employee
who is deemed to have been dismissed as contemplated
in s
17(3)(a)(i), reports for duty at any time after the expiry of
the period referred to in subsection (3)(a)(i), 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. The relevant executive
authority in
this case was the second respondent who considered the
representations by and on behalf of Galant and declined to reinstate
her.
[8]
In other words, the legal basis of the application before me is
limited to the question as to whether the jurisdictional facts
existed for the invocation of section 17(3)(a) (i) of the PSA. In the
founding affidavit Galant records that she was admitted to
Melomed
Medical Centre by Dr Khalid Dhansay a Specialist Psychiatrist for
major depression for the period 24 July to 15 August
2015, and her
Commanders were informed of this. She avers that she was again
hospitalized at the Centre for the period 22 August
2014 to 27 August
2014. On the 22 September, a Dr Lekas booked her off for ‘major
depression’ until 3 October 2014.
[9]
Shortly after this she was handed a notice signed by Captain Van Lill
informing her to resume duty by 10 October 2014, otherwise
her salary
would be stopped. She was invited to make representations as to why
her absence should not be regarded as leave without
pay.
On
17 October 2014 Galant received a further letter from Colonel van
Lill which read as follows:
“
1.
My correspondence 0104867-8/2 dated 25 September 2014 (temporary
incapacity leave)
and 7 October 2014 (2 notices to return to work)
refers.
2.
Your representations were considered and found that it does not
justify your
absence from work.
3.
It is noted that you booked off sick for various illnesses during
your absence
and you were informed that your sick certificates were
not accepted by the employer.
4.
On 13 October 2014 Head Office was informed to stop your salary.
5.
With due regard to the contents of all the correspondence served on
you, you
are hereby instructed to resume your duties on Monday 20
October 2014.
6.
Should you fail to resume your duties within one calendar month from
20 October
2014 you will be deemed to be dismissed in terms of
section 17(3)(a)(i) of the Public Service Act.”
[10]
I note that Galant refers to being booked off until 3 October 2014 by
Dr Lekas. The employer gave her one calendar month from
the 20
October 2014 to return to work in the letter above. She was given the
letter of deemed dismissal on 28 November 2014. Given
that this
review is not concerned with the decision by the second respondent in
terms of section 17(3)(b), the events after the
30 day period expired
are not relevant to the court’s determination of whether the
jurisdictional facts existed for the deemed
dismissal to be effected.
[11]
The jurisdictional facts are to be gleaned from section17(1)(a)( i)
which bears repeating i.e.:
'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.', have been judicially considered.
The Constitutional Court in
Grootboom v National Prosecuting
Authority & another
summarised the
provision’s meaning thus:
“
This
section allows for the deemed discharge, by mere operation of law and
without prior notice or hearing, of any officer, other
than a member
of the military, police or correctional services or an educator or a
member of the National Intelligence Services,
who absents
himself or herself from his or her official duties for longer than
one calendar month without his or her
employer's permission.”
[2]
[12]
In other words the jurisdictional facts for the deemed dismissal to
be activated ex lege are twofold, first that there
has been a
30 calendar days absence, and secondly that the employer has not been
given permission for that absence. The Supreme
Court of Appeal, has
stated in
Solidarity
& another v Public Health & Welfare Sectoral Bargaining
Council & others
[3]
:
“
[10]
A 'deemed dismissal' in terms of s 17(5)(a)(i) of
the PSA follows by operation of law. Accordingly, the
notice of 19
October 2007 to the employee purportedly in terms of that section,
was purely a communication of a consequence
that, in the
employer's view, followed by operation of law (Minister van Onderwys
& Kultuur & andere v Louw
[1994] ZASCA 160
;
1995 (4) SA 383
(A) at 388).
Plainly, that section only finds application to an employee who
'absents himself or herself from his or her official
duties without
permission'.”
[13]
In both the
Grootboom
and
the
Solidarity
cases (supra), the court found that the jurisdictional fact of
absence ‘without permission’ had not been met
as
the employees in question had been suspended and were thus not absent
at the behest of their respective employers.
[4]
[14]
The facts in this matter stand to be distinguished. The employee was
not absent at the behest of her own employer and on her
own version
was not given permission to be absent for the thirty day period in
question. The issues regarding leave without pay,
the applicable
policies and prescripts regarding Incapacity leave and Ill Health
retirement, as well as those for Incapacity Assessment
for
psychiatric conditions referred to by the applicant in her founding
papers, as well as representations in relation to these,
were issues
serving before the second respondent when he took his decision not to
reinstate the applicant in terms of section 17(3)
(b). Unfortunately
for Ms Gallant, no legal basis for review of that decision was
contained in the founding affidavit. The founding
affidavit
encapsulates her cause of action as follows:
“
The
employer knew from the outset what the reasons for my absence were,
they knew about the hospitalization and the mental condition,
yet
despite the medical certificates and the proof of hospitalization,
Colonel van Lill discharged me for desertion in terms of
section
17(3).”
[15]
The application must therefore fail on the basis that it was
ill-conceived, as reflected in the founding papers.
[16]
I therefore make the following order:
16.1
The application is dismissed.
16.2
There is no order as to costs.
____________________
H.
Rabkin-Naicker
Court
Appearances:
Applicant:
JA Nortje instructed by Heidi van der Meulen Attorneys
Respondents:
T.J Golden S.C. instructed by State Attorney
[1]
Section
17(3)(a)(i) of the Act provides:
'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.'
[2]
(2014) 35 ILJ 121 (CC); the court referred to the section as it was
before the amendments to the PSA, (i.e. section 17(5)(1))
by virtue
of Act 30 of 2007 ,and emphasized that the section was in all
essentials unchanged.
[3]
35
ILJ 2105 (SCA)
2105
(SCA)
[4]
At paragraphs 40 and 10 respectively