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[2017] ZALCJHB 90
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NEHAWU obo Ndweni v Member of the Executive Council, Department of Social Development and Another (JR1488/15) [2017] ZALCJHB 90 (14 March 2017)
IN THE LABOUR
COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 1488/15
In
the matter between:
NEHAWU
obo ANDREW NDWENI
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF SOCIAL DEVELOPMENT
First Respondent
DEPARTMENT
OF SOCIAL DEVELOPMENT
Second
Respondent
Heard:
09 February 2017
Delivered:
14 March 2017
JUDGMENT
TLHOTLHALEMAJE
J
Introduction
and background
[1]
NEHAWU
on behalf of its member Mr. Andrew Ndweni approached the Court in
terms of the provisions of section 158(1)(h) of the Labour
Relations
Act,
[1]
to seek an order reviewing, setting aside and/ or substituting the
decision of the first respondent, (MEC) in terms of which the
latter
refused to reinstate Ndweni to his previous position pursuant to his
discharge from service in terms of the provisions of
section
17(3)(a)(i) of the Public Service Act (The PSA).
[2]
[2]
Ndweni was employed by the second
respondent (the Department) as a Messenger/Driver. There is a dispute
as to whether he had reported
for duty on 13 February 2014
or not. The respondents’ contention is that there is no record
of his presence at
work on that day, and an attendance register was
referred to in support of this contention. Ndweni’s version
however was
that whilst on duty, he was overcome by a medical
condition, which resulted in his body being covered in sores and
blisters. He
further alleged that he had informed his immediate
supervisor, the late Ms Risky De Beer (De Beer), of his ailment, and
was granted
permission to leave the workplace to seek medical
attention. Ndweni further averred the following:
a)
He had consulted with a Dr Manoto on 13
February 2014 and was declared unfit for duty until and including 12
March 2014, having
been diagnosed with a ‘
Dermatological
Condition’
;
b)
On 14 February 2014, he telephonically
contacted De Beer, informing her that he was declared unfit for duty
until 12 March 2014;
c)
On 18 February 2014, he sent a text message
to his Manager, Ms Sylvia Zwane, and informed her that he was unfit
to report for duty.
There is a dispute in respect of the content of
the text message, with the respondents contending that Ndweni
informed Zwane that
he will be reporting for duty on 19 February
2014, whilst Ndweni’s contention was that he had stated he was
unable to report
for duty, and had said nothing about returning to
work the next day;
d)
On an unspecified date during February
2014, Ndweni had called the Transport Officer, Mpho Lengopeng to come
to his residence to
collect a state vehicle. The said Lengopeng came
to his house accompanied by another employee, Doleka Mathuntsi, to
collect the
state vehicle which he had kept since 13 February 2014;
e)
On 25 March 2014, Ndweni had requested a Mr
Oupa Seboa, another driver employed by the Department to deliver a
copy of his medical
certificate to De Beer. According to Ndweni,
Seboa could not locate De Beer and had attempted to deliver the copy
to Zwane. At
first, Zwane refused to accept the medical certificate,
as the Labour Relations Office had authority to do so. Zwane had
ultimately
agreed to accept the copy. The respondents on the other
hand deny these allegations, and contended that the Department was
only
furnished with a copy of the medical certificate on 26 March
2014, and directly from Ndweni upon his return for duty;
f)
On 26 March 2014, and upon reporting duty,
Zwane informed Ndweni not to resume with his functions and that he
must approach the
Labour Relations Office for further instructions;
g)
A meeting took place between Ndweni and Mr
Mbentse of the Labour Relations Office, and Ndweni was informed that
he was deemed to
have absconded and that the Department was awaiting
a letter from its Head in regards to the issue of his absenteeism.
Ndweni was
advised to return home and await further communication
from the Department;
h)
On 09 April 2014, Ndweni was requested to
avail himself at the offices of the Head of Department and upon his
arrival, was handed
a letter which read as follows:
“
DISCHARGE
FROM THE PUBLIC SERVICE IN TERMS OF SECTION 17 (3) (A) OF THE PUBLIC
SERVICE ACT 1994
You
are hereby informed that you have been discharged from the Public
Service in terms of section 17 (3) (a) (i) of the Public Service
Act
1994 which reads as follows;
………………………
.
Your
discharge from service will be effective as from 13 February 2014, as
it is the day succeeding the last day on which you reported
for duty.
Please note that you have a right to appeal to the Executive
Authority as stated in section 17 (3) (b) of the Public
Service Act
1994 (As amended) that
…………………
Kind
regards
Ms
WR Tshabalala
Head
of Department”
[3]
On 23
April 2014, Ndweni with the assistance of NEHAWU, made
representations to the MEC in terms of section 17(3)(b) of the
PSA.
[3]
A period of about one month passed without an outcome being received
and Ndweni and NEHAWU then approached the Public Health and
Social
Development Sectoral Bargaining Council (The PHSDSBC) with a referral
alleging unfair dismissal. On 29 May 2014, Commissioner
JN Matshekga
of the Bargaining Council issued a jurisdictional ruling in terms of
which it was held that the Council lacked jurisdiction
to determine
the matter.
[4]
The MEC had responded to the
representations in terms of which she had refused to reverse the
discharge. The responses and further
correspondence between her and
NEHAWU in regards to the reasons for not reversing the decision will
be dealt with in due course.
Grounds
for review
[5]
Four interrelated grounds were advanced in
contending that the decision of the MEC not to reinstate Ndweni was
reviewable:
a)
The first was that the MEC failed to
furnish full reasons for her decision;
b)
The second was that the MEC failed to apply
her mind to the representation made to her, and failed to properly
consider the explanation
advanced for the absenteeism and the
documentary evidence (medical certificate) attached to the
representations;
c)
The third ground was that the MEC failed to
consider on factual grounds whether Ndweni had in fact absconded from
his employ;
d)
The fourth was that the MEC failed to apply
her mind to whether Ndweni had in fact been absent for a period
exceeding 30 consecutive
calendar days.
Evaluation
[6]
It is trite that to the extent that an
employment contract of a person is
regulated by the provisions of the PSA, such a contract may be
terminated by operation of the
law if that person absents himself or
herself from duty for a period exceeding 30 days in accordance with
the provisions of section 17(3)(a)(i)
of the PSA. For these
provisions to be operative, the employee must have absented
him/herself; that employee must have been absent
from his/her
official duties without permission of his head of department, office
or institution; and the absence must have been
for a period exceeding
one calendar month. In terms of section 17(3)(b) of the PSA, the
executing authority may however on
good cause shown by the employee
who has been deemed to have been dismissed, order that he or she be
reinstated.
[7]
The first issue to be determined therefore
in this case is whether the requirements set out in section
17(3)(a)(i) of the PSA to
justify the discharge were present. This
requires an examination of the facts as presented before the Court.
[8]
It can be accepted on the facts that
Ndweni, as a member of the services had absented himself from his
official duties between 13 February 2014
until his return
on 26 March 2014. This amounts to a period of 34 full calendar days.
[9]
The
second leg of the enquiry pertains to whether he had the requisite
permission from his head of Department, office or institution.
Ndweni’s contention was that he sought and obtained the
permission of De Beer when he left on 13 February 2014.
The
respondents’ contention on the other hand was to deny that
Ndweni was even at work on the day in question, and had attached
an
attendance register
[4]
to the answering affidavit in support of these contentions. In reply,
thereto, Ndweni contended that at the time that he fell ill,
he had
not yet signed the attendance register and had left without signing
it.
[10]
The
difficulties with Ndweni’s contentions is that he does not give
a satisfactory account that can attest to his presence
at work on the
day in question. In the absence of De Beer’s evidence in
this regard, all that was placed before the
Court is the attendance
register, which Ndweni did not dispute. According to the register,
his colleagues reported for duty at
varying times between 06h45 and
08h00. As I understood his version, having obtained permission from
De Beer, he then left
the workplace in a state vehicle, and the
concern is that if he could drive himself to a doctor, I fail to
appreciate how he could
have been so sick as to be not able to sign
the attendance register before he left the workplace. His explanation
in this regard
is inadequate, and I will accept that indeed he had
not reported for duty on the day in question. Consequently, he could
not have
obtained permission from De Beer to be absent from duty.
Crucially in respect of this issue, nowhere in his representations
[5]
did he even mention that he had obtained permission from De Beer to
leave on 13 February 2014. All that he had mentioned
was
that he had “communicated his sick leave with his supervisor”.
[11]
The provisions of section 14 of the Department’s policy
on ‘Determination of Leave of Absence in the Public Service’
further places an obligation on the employee to immediately and
personally notify his or her supervisor of illness preventing him
or
her from reporting for duty. Section 14.5 of the provisions further
places an obligation on the employee to submit an application
for
sick leave personally or through a relative or fellow employee within
five working days after the first absence. It took Ndweni
until 18
February 2014 to contact Zwane via a text message to inform him of
his inability to report for duty. Even then, the above
provisions
were not complied with, and on his version, a copy of the medical
certificate was only handed in on 25 March 2014.
[12]
Having established that Ndweni had not on
13 February 2014 obtained any permission from De Beer to be absent as
he had not reported
for duty, even if it is accepted that he had sent
a text message to Zwane his manager on 18 February 2014,
that in itself
was not sufficient for the purposes of seeking
permission to be absent. On Zwane’s version, Ndweni had
indicated his intentions
to report back for duty on 19 February 2014.
He however failed to do so until 26 March 2014.
[13]
It was further undisputed by Ndweni that De
Beer had contacted him on 19 March 2014, and he had
promised to send through
a copy of his medical certificate the
following day. He however failed to do so, and on his version, had
handed in a copy on 25
March 2014, a day just before his return.
[14]
In the light of the above factors, I am satisfied that on the
facts, Ndweni was absent from duty for a period exceeding 30 calendar
days. He had not obtained permission from his manager or relevant
authority to absent himself from duty. The respondents therefore
had
cause to invoke the provisions of section 17(3)(a)(i) of the
PSA.
[15]
The last leg of the
enquiry is whether in accordance with the provisions of
section 17(3)(b), Ndweni had shown good cause to
justify the
setting aside of his discharge by the MEC.
The
functionaries in the public service in exercising their powers under
that subsection are required to do so in a manner that
is not
irrational or arbitrary, and must act fairly, reasonably and
justifiably.
[6]
Thus, a failure or omission by the executive authority to provide
reasons for a refusal to reinstate would sustain a ground of
review.
[7]
This is so in that negative inferences are bound to be drawn as to
whether the decision maker acted in good faith, or whether the
decision was
influenced
by ulterior or improper motives.
[8]
The reasons
furnished by the executive authority need not however be to the
satisfaction of the affected employee.
[16]
The requirement that the decision maker
must give reasons entails not merely regurgitating the statutory
provisions upon which the
decision is based. It requires of a
decision maker to demonstrate that he or she had applied her mind to
the representations made
by the employee as to the reasons why the
sanction should be reversed.
[17]
Because
the discharge in terms of these provisions is not regarded as a
dismissal in the ordinary sense, and further because the
appeal stage
is effectively the last internal avenue for the affected employee to
state his case and salvage continued employment,
it is my view that
first, for good cause to be shown, there is an obligation on the
affected employee to place substantial representations
before the
decision maker as to why the decision should be reversed. This
implies that to the extent that the employee was absent
for a period
of more than thirty days, he or she must justify the absence,
inclusive of details surrounding the nature of his ailment,
his
whereabouts during the period of absence, and anything that could
have prevented him or her from resuming duties.
[9]
Further to the extent that the factors that triggered the discharge
were present, it is up to the employee to convince the executive
authority that its confirmation was not warranted given the
circumstances of his or her case.
[18]
To reiterate, it would not be sufficient
for an employee to simply allege that he or she had called the
manager to inform him or
her of her absence or to merely present a
copy of a medical certificate upon his or return. There is a need to
justify the absence
with sufficient details, and to state why the
discharge should be reversed.
[19]
A
second consideration in my view is that since a discharge does not
follow a disciplinary hearing or any form of formal enquiry,
there is
an onerous burden on the decision maker to demonstrate that the
representations made were carefully considered and responded
to with
sufficient particularity, to justify why the sanction cannot be
reversed. Confronted with similar provisions as applicable
under the
Employment of Educators Act,
[10]
Van Niekerk J in
De Villiers
v Head of the Department of Education, Western Cape Province
,
[11]
held that in considering a submission for reinstatement by an
employee, the employer must take into account the totality of the
facts and the circumstances of the employee including whether the
conduct of the employee had rendered the employment relationship
intolerable.
[12]
[20]
Thus,
if the employee’s representations are lacking in particularity,
the decision maker’s response cannot be reviewable
if it is
equally lacking in particularity. Axiomatically, where the
representations were substantial and detailed, it would be
difficult
to assess whether a decision could have been reasonable and rational
when the decision maker offers no reasons for the
decision.
[13]
The courts in such instances should give the affected employee the
benefit of the doubt.
[21]
Ndweni sought to justify his absence from
work based on his contention that he was booked off sick during that
period. The starting
point is that there are inherent difficulties
with a copy of a medical certificate that he had submitted to justify
his absence.
In his founding affidavit, Ndweni had alleged that he
had consulted with Dr Manoto on 13 February 2014, and was booked off
until
12 March 2014. The medical certificate however, is
dated 12 March 2014, almost a month since he had allegedly
seen the doctor.
[22]
In his affidavit, nowhere does Ndweni
indicate that at any time during his absence, particularly on 12
March 2014, did he ever consult
Dr Manoto again. If indeed he was
incapacitated as he had alleged, and had consulted with Dr Manoto
on 13 February 2014 as
he had claimed, and was booked off until
12 March 2014, this implies that he had nothing to present
to the employer to
substantiate his allegations that he was sick from
the period of his absence until 26 March 2014 when he
returned to
work and presented that medical certificate.
[23]
Worse still, Ndweni had waited until 25
March 2016, a day just before his return to ask Seboa to deliver his
copy of the medical
certificate. There is no explanation if there is
any truth in it, as to the reason he had waited between 12 March 2014
and 25 March 2014 before he could provide the employer with a copy of
his medical certificate. In any event, as at 25 March 2014,
he was
supposed to have reported for duty at least 13 days earlier, and
there does not appear to have been any attempt to proffer
an
explanation for his absence after 12 March 2014.
[24]
This Court has over time had to deal with
instances of absenteeism, where employees for some strange reason
seem to hold the view
that a mere submission of a copy of a medical
certificate was sufficient to justify prolonged periods of
absenteeism, especially
in circumstances where permission was not
obtained. Most copies of medical certificates seen and relied upon by
employees, are
normally issued in cryptic, incomprehensible and
unreadable terms, and one cannot for instance, determine from such
copies whether
a ‘
Dermatological
Condition’
as in this case,
justified absence of over one month from the workplace. Ndweni’s
contention that the he was informed by
his doctor that the diagnosed
condition was contagious amounts to nothing but hearsay.
[25]
It
has long been held by the Labour Appeal Court in
Mgobhozi
[14]
that
medical
certificates are no different to other documentary evidence, and
therefore constitutes hearsay in the absence of an affidavit
from the
doctor concerned. It is therefore not sufficient for employees to
simply obtain a copy of a medical certificate as in
this case, long
after the first day of absence from work, and to merely present it
with an expectation that the employer must simply
accept it with no
questions asked. Sick leave abuse amongst employees, whether in the
public or private sector is a reality, and
employers are entitled to
be suspicious and skeptical of copies of medical certificates that do
not make sense or say little about
the employees’ alleged
ailment, especially those copies that are presented after prolonged
periods of absence from work,
and which appear to have been
post-dated.
[26]
The insistence on further information from the concerned
doctor in the form of an affidavit is purely meant to curb sick leave
abuse.
It is not far-fetched to conclude that it appears to be a
simple matter for employees to obtain copies of medical certificates.
Furthermore, this requirement is even more apposite in this case,
where the copy of the medical certificate is post-dated, and
with no
attempt by Ndweni to explain the reason he had only secured a copy
one month after he had allegedly seen the doctor. At
most, it would
have been expected of him or the concerned doctor, to explain the
reason a copy was not given to him on the date
of the alleged
consultation, particularly where the duty was upon Ndweni to
immediately furnish the employer with a copy from the
first date or
short period of absence, in view of the requirements of section 14 of
the policy on ‘Determination of Leave
of Absence in the Public
Service’.
The
representations and responses
[27]
The representations to the MEC for the
purposes of section 17(3)(b) of the PSA made by Ndweni as
assisted by his NEHAWU representative
were as follows:
“
.........................
…………………
My
reasons for appeal are as follows;
1.
No proper
procedures were following regarding the case.
2.
No
investigations were conducted and the affected being called for a
hearing.
3.
I was booked off
sick by Dr M. Manoto from 13
th
February 2014 to 12
th
March 2014. See attached medical certificate.
4.
I have
communicated my sick leave with my supervisor (I have proof)
5.
The discharge
letter does not reflect the specific period of my absenteeism from
work.
6.
Refer to labour
relations act of 2002 (Sic)
……………
.
The
official termination of service should be immediately retracted and a
proper investigation procedures to be followed according
to the
Labour Relations Act.
I
wish to provide evidence or proof that I did not commit any
misconduct
……………
.”
[15]
[28]
On 19 June 2015, some 14 months since the
submission of the representations in terms of subsection (3)(b),
the MEC furnished
her decision to Ndweni, advising him that the
decision to discharge him remained unchanged. The letter from the MEC
reads as follows:
“
RE:
APPEAL AGAINST SANCTION
Your
letter of appeal bears reference.
I
acknowledge with thanks receipt of your appeal and noted all its
contents.
The
Department has noted the allegations of misconduct against you on the
basis of abscondment as you absented yourself from work
without
permission for a period exceeding one calendar month.
Having
noted all matters that were raised, I have had an opportunity to
apply my mind on your request and the following is the outcome
of the
appeal:
1
.
I uphold the decision taken by the Department.
If
you object, you may direct your dispute to the PHSDSBC within 30 days
of receipt.
Yours
faithfully
Ms
Nonhlanhla Faith Mazibuko
Member
of the Executive Council
Department
of Social Development”
[29]
On 15 July 2015, NEHAWU sent correspondence
to the MEC, requesting further reasons for the decision in the light
of the previous
correspondence not indicating the dates and/or period
Ndweni is alleged to have absconded. It was further pointed out that
during
his absence from work due to ill-health, De Beer and Zwane
knew of his whereabouts, inclusive of the sick note that was
delivered
to Zwane. The correspondence further indicated that the
previous correspondence from the MEC did not give reasons and/or
basis
upon which the request for reinstatement was refused, and the
basis for rejecting his representations.
[30]
The MEC’s response on 28 July 2015
was as follows:
“
RE:
NEHAWU’S ENQUIRY ON MR NDWENI’S APPEAL
Please
note that, after careful consideration of Mr Ndweni’s
application as provided by section 17(3)(b) of the Public Service
Act, I could not sanction his reinstatement, due to the following;
·
Mr Ndweni’s
employment contract was terminated by ‘Operation of the law’-
section 17 930 (a) (i) of the Public
Service Act.
·
Mr Ndweni’s
representation to the Executive Authority could not justify the
unreasonableness of the duration of his absence
and disruption of
work.
It
further needs to be noted that Mr Ndweni’s rights were fully
observed by the department hence he was duly advised to lodge
a
dispute with Public Health and Social Development Sectoral Bargaining
Council (PHSDSBC) in the event of any dissatisfaction with
the appeal
outcome.
Hope
the information will provide clarity regarding your enquiry
Yours
faithfully
Ms
Nonhlanhla Faith Mazibuko
………………………”
[31]
It is
trite that in review applications, the court assesses the facts which
were considered by the decision-maker at the time that
the decision
was made.
[16]
It is thus not helpful for the parties to place evidence before the
court that was not placed before the decision maker prior to
the
decision being made.
[32]
In this case, the main attack against the
MEC was that she failed to apply her mind to the representations made
and to give reasons
for her decision. Amongst other complaints raised
was that there was no attempt to contact Ndweni during his period of
absence
to establish his where-abouts. This contention comes about
bearing in mind that Ndweni had denied that the employer attempted to
telephonically contact him twice without success. The only concession
he had made was that De Beer had indeed contacted him on
19 March
2014, and that he had promised to send through a copy of his medical
certificate the following day, which he never
did. In my view
however, it does not make sense for Ndweni to concede having received
one telephone call and deny having received
others which he did not
respond to.
[33]
I accept that the first response of the MEC
on 19 June 2015 as to why the decision could not be reversed was
lacking in particularity.
It was not sufficient for the MEC to simply
make a statement that she had ‘noted’ all matters that
were raised and
‘applied her mind’ to the request, and
thereafter upheld the decision. She needed to have indicated what
matters were
raised and noted, and how she had applied her mind to
the request.
[34]
In respect of the MEC’s second
response of 28 July 2015, the starting point is that because the
discharge was by operation
of the law, there was no requirement that
respondents had to follow ‘proper procedures’, or have
formal investigations,
or convene a hearing as Ndweni had contended.
Once the factors that triggered the provisions of section 17(3)(a)(i)
were present,
the discharge took effect. There was therefore no basis
for the MEC to respond with any particularity to these grounds, as
Ndweni’s
representations in terms of section 17(3)(b)
served as an avenue for him to plead his case.
[35]
In respect of other grounds relied upon by
Ndweni, viz, that he had communicated his sick leave with his
supervisor; or that the
discharge letter did not reflect specific
period of absenteeism or that he had produced a medical certificate,
the MEC’s
response was that those representation, could not
justify the unreasonableness of the duration of his absence and
disruption of
work. In my view, the response is again lacking in
detail. It was required of the MEC to indicate on what basis she had
rejected
those submissions, and not to simply state that they were
unreasonable.
[36]
Significant
with the respondents’ case is that in the record before the
Court, there is correspondence to the Head of the
Department from the
Department’s Director, HRM on 31 March 2014,
[17]
which appears to have formed the basis of the initial decision to
effect the discharge. This correspondence elaborated in detail
why
the discharge should take place. Following the appointment of the
current MEC, further correspondence was sent to her on 15
May
2016
[18]
to give her background in respect of Ndweni’s dispute.
[37]
As
already stated elsewhere in this judgment, because of the
implications of a discharge by operation of the law, the employee is
entitled to be furnished with detailed reasons why his
representations do not show good cause. If the above-mentioned
correspondence
addressed to the Head of the Department was the basis
of the MEC’s decision, and in addition to the internal
memorandum addressed
to the Labour Relations Office by Zwane on 25
March 2014,
[19]
prima
facie
,
she had justifiable reasons to conclude that Ndweni had not shown
good cause.
[38]
The concern, however, is that the MEC
nevertheless elected to dispose of the matter in scant terms which
did not indicate on what
basis a conclusion was reached that
“
Ndweni’s representation
could not justify the unreasonableness of the duration of his absence
and disruption of work”
. Ndweni
and NEHAWU were entitled to full reasons for that decision. It is
acknowledged that Members of Executive Councils have
busy schedules,
and it would be unreasonable to expect of them to attend to appeals
personally with specific particularity. This
however was not
necessary in this case, in that all the information as contained in
the correspondence and memorandum referred
to above was available to
her. Thus, all she needed to do in giving her reasons, or at least,
her delegates, was to refer to those
documents to justify the
decision, and if not, to at least to attach that correspondence to
her decision.
[39]
Even more worrying in this case is that the
deponent to the answering affidavit (Nomfundo Gratitude Sidzamba) the
Department’s
Deputy Director of Legal Services made numerous
references to the MEC as this application centred around her
decision. Sadly however,
no attempt was even made by the respondents
to secure a confirmatory affidavit from the MEC to confirm any
averments in respect
of the justification for her decision. It was
not sufficient for the Department to simply make allegations that the
MEC had taken
regard of this or other factor, when there is no
confirmation from her in that regard. It therefore follows that there
is no basis
for a conclusion to be reached that the MEC had indeed
applied her mind to the representations.
[40]
To
the extent that it was argued that there was no evidence to suggest
that the MEC had considered whether the conduct of Ndweni
had
rendered the employment relationship intolerable or not, it has since
been clarified in
Impala
Platinum Limited v Zirk Bernardus Jansen & Others
[20]
that an employer can justify its decision to impose the sanction of
dismissal in circumstances where no evidence on the breakdown
of the
trust relationship has been led. Thus, the nature of the employee’s
misconduct can on its own lead to a conclusion
that the employment
relationship was unsustainable.
[41]
In circumstances where a discharge took
place by operation of the law, whether a continued employment
relationship is sustainable
or not can only be ascertained from a
variety of factors including
inter alia
,
whether an employee has shown good cause for the absence; the length
of the absence outside of the 30 calendar day period; whether
there
was any attempt to comply with the employer’s policies relating
to leave of absence; and the impact of the absence
on the employer’s
operations in the light of the employee’s position and
functions.
[42]
To the extent that this Court is not
satisfied with the adequacy of the reasons given by the MEC for her
decision, the next issue
to be determined is whether based on that
fact alone, can that decision be reviewed and set aside? In coming to
a conclusion in
this regard, the following is taken into account:
a)
The jurisdictional factors to invoke the
provisions of section 17(3)(a)(i) of the PSA were present in this
case in that Ndweni did
not obtain permission to be absent from work,
and that absence exceeded a period of thirty calendar days;
b)
Ndweni, had sought to rely on a copy of the
medical certificate issued on 12 March 2014. The court has expressed
its doubts about
any weight to be attached to that certificate. Be
that as it may, it was for the MEC to indicate on what basis she had
rejected
that copy, and she had not done so in her reasons for the
decision;
c)
The MEC, despite all the material available
to her from the department, had not at the time that she made her
decision, furnished
Ndweni with adequate reasons for her decision. If
she had considered any material that was furnished to her regarding
the discharge,
there is nothing to suggest or confirm that she took
that into account in coming to her conclusions and decision not to
reinstate;
d)
There is nothing in the pleadings, that
suggests that Ndweni’s absence from work (as a
Driver/Messenger) had any particular
impact on the Department’s
operations. The suggestion by the MEC that the absence disrupted work
is unsubstantiated, and
one needs to understand in what manner the
absence had caused disruption in the Department for a conclusion to
be reached that
the employment relationship is unsustainable.
[43]
Having taken the above into account, I am
of the view that the decision of the MEC ought to be reviewed and set
aside. In terms
of the provisions of section 17(3)(b) of the
PSA, the MEC, even if not satisfied with the representations, had
options available
to her. Thus, she could have approved the
reinstatement of Ndweni in his former or any other post or position,
and/or deemed the
period of his absence from official duty as absence
on vacation leave without pay or leave, or reinstated on such other
conditions
as she could have determined.
[44]
As it was correctly pointed out on behalf
of Ndweni, the Court is placed in a position to either review, set
aside or substitute
the decision of the MEC in the light of the
material before it, and I intend to do so.
[45]
In considering the appropriate relief,
other than the factors already alluded to, it is also taken into
account that Ndweni did
not approach the Court with clean hands.
There was no justification for his absence and the only fatal blow to
the respondents’
case was that the MEC had not provided
sufficient or adequate reasons for rejecting his representations in
terms of the provisions
of section 17(3)(b) of the PSA. In
consideration of these factors, Ndweni is entitled to reinstatement
but not without conditions,
as he was clearly the author of the
circumstances he found himself in.
[46]
I have further had regard to the issue of
costs, and in my view, particularly to the extent that the applicants
were represented
by a Union official, there is no basis in law or
fairness to justify a cost order.
Order
[47]
Accordingly, the following order is made:
1)
The decision of the first respondent not to
reinstate Andrew Ndweni following his discharge from service in
accordance with the
provisions of section 17(3)(a)(i) of the
Public Service Act 103 of 1994 is reviewed , set aside, and
substituted with an order
that:
“
Andrew
Ndweni is to be reinstated in the second respondent’s employ,
and on the same terms and conditions as applicable to
his position as
at the date of his discharge.”
2)
The reinstatement order as above is without
retrospective effect, and Andrew Ndweni is not entitled to any
remuneration and/or benefits
from the date of the discharge until 03
April 2017 when he shall be expected to report for duty.
3)
There is no order as to costs.
__________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
M Maraka (Union official) of NEHAWU
For
the Respondents:
Adv. T Motloenya
Heads
of argument drafted by:
Adv. L
Stroom
Instructed
by:
The State Attorney,
Johannesburg
[1]
Act 66 of
1995 as amended. Section 158(1)(h) provides—
“
(1)
The Labour Court may—
. . .
(h)
review any decision taken or any act performed by the State in its
capacity as employer,
on such grounds as are permissible in law.”
[2]
Act 103 of
1994. This section provides that:
“
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.”
[3]
Section
17(3)(b)
which provides
that:
“
(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.”
[4]
Annexure ‘NS11’ to the Replying Affidavit.
[5]
Annexure ‘AD5’ to the Founding Affidavit.
[6]
MEC for
Education and Culture v Mabika & Others
(2005)
26 ILJ 2368 (LC) at 2373C.
[7]
MEC for
the Department of Health, Western Cape v Weder, In Re: MEC for the
Department of Health, Western Cape v Democratic Nursing
Organization
of South Africa obo Mangena
[2014] 7
BLLR 687 (LAC).
[8]
See
Dendy
v University of the Witwatersrand and Others
[2005] ZAGPHC 39
;
2005 (5) SA 357
(W) ([2005]
2 All SA 490)
in para
53.
[9]
Grootboom v National
Prosecuting Authority & another
2010 31 ILJ 1875.
[10]
No 76 of
1998.
[11]
(2010) 31
ILJ 1377 (LC).
[12]
Id at para
30.
[13]
See
PSA
obo Smit v Mphaphuli NO and Others
(LC)
(unreported case no C742/11) where the Court had referred to
Weder
v Member of the Executive Council for the Department of Health,
Western Cape
[2013] 1 BLLR 94
(LC) at 35.
[14]
Mgobhozi
v Naidoo NO & others
(2006) 27 ILJ 786 (LAC).
[15]
Annexure ‘ADS5’ to the Founding Affidavit.
[16]
M E
Sello v The Divisional Commissioner, Human Resource Development,
SAPS
Case
No: JR 1870/2013.
[17]
Page 40 of Respondent’s Index to Record.
[18]
Page 109.
Index to Record.
[19]
Page 1 of Respondents’ Record.
[20]
Case No:
(JA100/14).