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[2017] ZALCCT 10
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PSA obo Rousseau-Geduld v Head of Department: Department of Education, Northern Cape and Another (C986/14) [2017] ZALCCT 10 (22 March 2017)
Reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 986/14
In
the matter between:
PSA obo R
ROUSSEAU-GEDULD
Applicant
and
HEAD OF DEPARTMENT:
DEPARTMENT OF
EDUCATION,
NORTHERN CAPE
First Respondent
MEMBER OF THE
EXECUTIVE COUNCIL:
EDUCATION,
NORTHERN CAPE
Second Respondent
Heard
:
15 March 2017
Delivered
:
22 March 2017
Summary:
Review – LRA s 158(1)(h) and Employment of
Educators Act s 14. Employee informed that she is deemed to be
dismissed in terms
of s 14 of Educators Act. Union made
representations to MEC in terms of s 14(2) to be reinstated. MEC has
not taken a decision
on four years. MEC ordered to take a decision
and to pay applicant’s costs.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This
is an application in terms of s 158(1)(h) of the LRA
[1]
to review and set aside a decision and the refusal or neglect to take
a decision, respectively, of the State as employer, in the
guise of,
respectively, the head of department of education in the Northern
Cape; and the Member of the Executive Council for education
in that
province.
[2]
The
applicant is the Public Servants Association of South Africa (PSA),
representing its member, Ms Raquel Rousseau-Geduld. She
is a teacher,
or in official parlance, an educator. The Head of Department (the HOD
– the first respondent) informed her
that she was deemed to
have been discharged from service in terms of s 14(1) of the
Employment of Educators Act
[2]
,
as she had been absent from work for more than 14 days without
permission. She made representations to the MEC (the second
respondent)
to be reinstated. Four years later, the MEC has not
responded.
[3]
The applicant (i.e. the PSA, representing
Ms Geduld) has applied in terms of s 158(1)(h) of the LRA to have the
decision of the
HOD reviewed and set aside; alternatively, to review
and set aside the MEC’s failure to consider and determine the
employee’s
representations in accordance with s 14(2) of the
Educators Act.
Background facts
[4]
Ms Geduld was employed as a teacher in the
Northern Cape since 2007. On 16 August 2012 Dr Laurence Oliver booked
her off for acute
stress disorder and major depression for a period
of four months, until 15 December 2012 (i.e. more or less until the
end of the
school year). She says that her trade union, the PSA, sent
that medical certificate to the Head of Department (HOD), Mr G T
Pharasi;
the Department denies it.
[5]
The certificate attached to the founding
affidavit includes a fax transmission sheet dated 26 September 2012
for fax number 086
771 3093. The applicant provides no proof, either
in its finding or replying affidavit; whose fax number it is; the
respondents
deny any knowledge of it.
[6]
On 24 October 2012 the District Director –
apparently on behalf of the HOD -- informed the employee that she was
deemed to
be discharged from service as from 18 September 2012 in
terms of s 14(1) of the Employment of Educators Act as she had been
absent
from work for a period of more than 14 consecutive days
without permission of the employer.
[7]
The PSA made representations to the MEC, on
behalf of the employee, in February 2013 in terms of s 14(2) of the
Educators Act. It
asked the MEC to approve the reinstatement of the
employee on the grounds that she was not wilfully absent from work,
but because
she had been booked off sick. Four years later, the MEC
has not taken a decision and has not so much as responded to the
union.
Even when this matter was heard, after pleadings had closed
and after the MEC had had occasion to consider the pleadings, she had
still not taken a decision. Instead, she chose to incur further legal
costs and to instruct her counsel to argue that the representations
made four years ago “are under consideration by her”. It
is in that context that this matter was heard, with attorneys
and
counsel briefed by both sides. The legal costs for the respondents
are, of course, borne by the Northern Cape Province and
ultimately by
the taxpayer.
Legal
framework
[8]
Section 14 of the Employment of Educators
Act contains the following provisions:
“
14.
Certain educators deemed to be discharged
(1)
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.
(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.”
[9]
The employee was informed that she was
deemed to be discharged in terms of s 14(1)(a). Through her union,
she made representations
to be reinstated to the MEC in terms of s
14(2). The MEC has not responded.
[10]
The applicant brings this review
application in terms of s 158(1)(h) of the LRA, which provides that
this Court may “review
any decision taken or any act performed
by the State in its capacity as employer, on such grounds as are
permissible in law.”
[11]
Before considering the merits, the Court
must decide whether to grant the applicant condonation for the late
filing of the review
application.
Condonation
[12]
The
application for condonation must be considered against the trite
principles in
Melane
v Santam Insurance Co Ltd
[3]
,
together with the overriding consideration of the interests of
justice.
Extent of delay
[13]
Section
158(1)(h) of the LRA does not prescribe a time period for delivering
a review application. It must be done within a reasonable
time. As Ms
Ngumbela
argued, this Court has held in
Weder
v MEC for the Department of Health, Western Cape
[4]
that anything more than six weeks should at least trigger an
application for condonation.
[14]
In this case, the application for review
was brought about two years after the HOD informed the employee about
her discharge. It
appears to be an excessive delay. But the delay
must be weighed up against the reasons for it.
Reasons for delay
[15]
The HOD informed the employee about her
deemed discharge at the end of 2012. (Although the letter is dated 25
October, she only
received it on 3 December 2012). On 5 February 2012
the PSA made representations to the MEC in terms of s 14(2) of the
Educators
Act to have her reinstated. The MEC did not respond. Months
and years passed. A new MEC was elected. Still there was no response.
[16]
Eventually,
even the eponymous Ms Geduld lost patience. After two years, the MEC
had still not responded to her representations.
That is when she
delivered this application. And despite that, four years after Ms
Geduld had made her representations and two
years after this
application was filed, the MEC
[5]
has
still
not
responded. Not even after this matter had been set down for hearing
and after significant legal costs had been incurred, was
the MEC
spurred into action.
[17]
In my view, the applicant cannot be blamed
for waiting – at least for the initial period of two years –
for the MEC
to consider its representations. On the contrary, the
blame for tardiness lies with the MEC. Had the applicant been hasty
in bringing
this application, it may well have been blamed for being
premature, as the MEC needed time to consider its representations.
[18]
Given the primary reason for the delay –
being a non-responsive MEC – the extent of the delay is
understandable.
Prejudice
[19]
Ms Rousseau-Geduld is suffering clear
prejudice because of the delay occasioned by the MEC. It is that
delay that, in turn, led
to the PSA delaying in bringing this
application. Any prejudice to the respondents is caused primarily by
the tardiness and inaction
of the second respondent, the MEC. And
that could easily have been cured by her taking a simple decision one
way or the other.
The prejudice to the applicant outweighs that
experienced by the respondents.
Prospects of success
[20]
As will be seen hereunder, I have concluded
that the applicant has good prospects of success on at least one of
the review grounds
it raises. In order to consider the prospects of
success, the Court had to consider the merits of the review
application in full.
Conclusion :
condonation
[21]
Condonation is granted for the late filing
of the review application.
Merits on review
[22]
I shall consider the attack on the MEC’s
failure to take a decision in terms of s 14(2) of the Public Service
Act first.
[23]
The delay is simply unconscionable. The
applicant made representations to the MEC on 4 February 2013,
properly motivated, more than
four years ago. All the MEC had to do
was to apply her mind to the fact of the employee’s absence and
the reasons for it,
i.e. the fact that she had been booked off for
medical reasons. If the MEC had any misgivings about the nature of
the illness,
she could have inquired about it or asked for further
details. Instead, the current MEC and her predecessors did nothing.
The only
vague and unsatisfactory explanation the current MEC offers
is that she was not the incumbent at the time. But whoever occupied
the position at any given time would and should have been aware of
the fact that she or he had to act in terms of s 14(2) of the
Employment of Educators Act; and at the very least, should have been
prompted to act when this application was delivered.
[24]
In
Grootboom
[6]
the Constitutional Court, applying a similar provision in the Public
Service Act, set aside the “deemed dismissal”
of the
employee because he had been suspended and was therefore not absent
without permission. But the question whether similar
considerations
apply in this case, where the employee had been booked off sick, does
not even arise. The Court need not consider
the first aspect of the
review application – i.e. the attack on the HOD’s
decision – because the HOD must, in
the first place, take a
decision on the applicant’s submissions.
[25]
In
MEC
for Health, Western Cape v Weder
[7]
the LAC confirmed the judgment of the court
a
quo
that employees are entitled to proper reasons for a refusal to
reinstate them. In the absence of proper reasons, the MEC’s
decision not to reinstate was reviewed and set aside. In this case,
the MEC has not only refused to give reasons; she has not even
taken
a decision one way or the other.
[26]
In the absence of any decision by the MEC,
there is quite obviously no decision to be reviewed; but it is in the
interests of justice
that the employee be notified of a decision one
way or the other. Once that has happened, she will either return to
work or she
may decide to take that decision on review, should it be
an adverse one and should she not be satisfied with the reasons.
Conclusion
[27]
Although the relief that I intend to grant
was not couched in these terms in the notice of motion, the applicant
also asked in the
alternative for “such further and/or
alternative relief as this honourable Court may deem just”. And
in terms of s
158(1)(a)(iii) of the LRA this Court has the power to
make any appropriate order, including “an order directing the
performance
of any particular act which order, when implemented, will
remedy a wrong and give effect to the primary objects of this Act”.
[28]
One
of the primary objects of the LRA is to promote the effective
resolution of labour disputes.
[8]
That object is supplemented by s 14(2) of the Employment of Educators
Act, which leaves it to the MEC to decide whether an employee
had
shown good cause to be reinstated. In this case, the MEC has simply
refused or neglected to do so, contrary to the aim of effective
dispute resolution. I deem it to be in the interests of justice that
she be ordered to do so expeditiously.
Costs
[29]
The
conclusion that the Court has reached was precipitated only by the
inaction of the MEC. There is no reason in law or fairness
why she
should not pay the applicant’s costs.
[9]
As the Constitutional Court remarked only last week, “Accountability
is a central value of our Constitution.”
[10]
The
MEC must be held accountable for her failure to act.
Order
[30]
I therefore make the following order:
30.1
The second respondent (the MEC for
Education, Northern Cape) is ordered to consider the applicant’s
representations of February
2013 in terms of s 14(2) of the
Employment of Educators Act and to inform the applicant of her
decision by no later than
21 April 2017
.
30.2
The MEC is ordered to pay the applicant’s
costs.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
P
M Venter
Instructed
by Adrie Hechter.
RESPONDENTS:
Mandlakazi
Ngumbela
Instructed
by the State Attorney, Kimberley.
[1]
Labour Relations Act 66 of 1995
.
[2]
Act 76 of 1998.
[3]
1962 (4) SA 531 (A).
[4]
(2013) 34
ILJ
1315 (LC).
[5]
Currently Ms G Cjiekella-Lecholo.
[6]
Grootboom
v NPA
[2014]
1 BLLR 1 (CC).
[7]
[2014] 7 BLLR 687
(LAC); (2014) 35
ILJ
2131
(LAC).
[8]
LRA s 1(d)(iv).
[9]
LRA s 162.
[10]
Black
Sash Trust v Minister of Social Development and Others
(CCT48/17, 17 March 2017).