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[2017] ZALCCT 58
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PSA obo Matshobba v HOD: Department of Health, Northern Cape and Another (C844/15) [2017] ZALCCT 58 (15 November 2017)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 844/15
In
the matter between:
PSA
obo N T
MATSHOBA
Applicant
and
HOD:
DEPARTMENT OF HEALTH, NORTHERN CAPE
First
respondent
MEC:
DEPARTMENT OF HEALTH, NORTHERN CAPE
Second respondent
Heard
:
1 November 2017
Delivered:
15 November 2017
SUMMARY:
Public Service Act s 17(3) –
deemed dismissal. LRA s 158(1)(h) – review of MEC’s
refusal to reinstate employee.
Irrational decision reviewed and set
aside. Employee reinstated.
JUDGMENT
STEENKAMP
J
Introduction
[1]
Ms Nomonde Thelma Matshoba was
deemed to be dismissed from her employment at the Northern Cape
Department of Health in terms of
s 17 of the Public Service Act
[1]
.
She made representations to be reinstated. The Member of the
Executive Council responsible for that Department
[2]
refused. Her trade union, the Public Servants’ Association
[3]
,
seeks to have that decision reviewed and set aside in terms of s
158(1)(h) of the Labour Relations Act
[4]
for lack of legality.
Background
facts
[2]
The employee was absent from
work due to ill health for an extended period of time. She applied
for temporary incapacity leave in
terms of the applicable collective
agreement.
[5]
[3]
It appears from the documentation submitted by the employee that she
applied for sick leave for the period April to November
2014. But it
appears that this only came to the Department’s attention after
the fact, on 13 November 2014, when she also
applied for temporary
incapacity leave. However, the employer was well aware of her
whereabouts and the reason for her absence:
On 14 October 2014 the
Acting Chief Director: Health Programmes sent a memorandum to Ms L
Bezuidt, the Director: Labour Relations,
reflecting that the
employee’s records “show incomplete submission of
temporary incapacity leave application”.
Yet Ms Bezuidt did not
mention this in her submission to the Head of Department that the
employee be deemed discharged in terms
of s 17(3) of the
Public
Service Act.
[4]
On 18 December 2014 the
employee received a letter in these terms from the Head of
Department
[6]
,
Ms G Matlaoapane:
“
Dear Mrs Matshoba
RE: DISCHARGE IN TERMS OF SECTION
17(3)(a)(i) OF THE PUBLIC SERVICE ACT, 103 OF 1994 AS AMENDED
You absented yourself from duty
without leave and/or permission for a period exceeding one calendar
month (viz, 01 July 2014 to
date).
Therefore, you are deemed to be
discharged from Public Service in terms of section 17(3)(a)(i) of the
Public Service Act 103 as
amended, with effect from 12 August 2014.
Kindly note that since the
abovementioned section is a deeming clause and you cannot appeal,
thus your services are terminated by
operation of law.
Furthermore, you are entitled to make
a formal representation to the Executing Authority in terms of
section 17(3)(a)(i) of the Public Service Act, 103 of 1994
as
amended.
Trust you find the above in order.”
[5]
The employee made
representations to the executing authority, being the MEC, on 19
December 2014. She explained that she had been
ill and attached
copies of medical certificates and her requests for incapacity leave.
It appears that she had been booked off
sick by medical practitioners
from 1 July to 30 September and 2 October to 7 November 2014. She
also explained that, when she had
asked a labour relations officer,
Mr Pape, why the Department had not contacted her, it transpired that
the employer had sent a
letter to an address that she had left six
years earlier. She also pointed out that she had reported to work on
10 November 2014
but that her name had been removed from the
attendance register. On the same day, she had a lengthy conversation
about her illness
with the Deputy Director in the Health Promotion
Unit, Rev Makoko. She asked to see the HOD but she was told that the
HOD was attending
an ANC
lekgotla
.
The MEC, Mr M N Jack, only responded on 11 February 2015. His curt
response is worth quoting in full
[7]
:
“
Dear Ms Matshoba
OUTCOME OF YOUR REPRESENTATION:
YOURSELF
[
sic
]
Your representation refers.
After considering the merits of the
case and subsequent representation lodged. I therefore decided that
your representation be dismissed
and therefore your dismissal remains
effective.
The reasons for my decision are
informed by the gravity of the seriousness of the misconduct.
Provision is made in terms of s 187 of
the LRA and the code of Conduct for the Public Service. It is my
considered opinion that
u [
sic
] repudiated your contract with
your continued absence from your workplace and therefore by operation
of law u deemed [
sic
] to have discharged yourself.
I have also taken the following
legislature prescripts into account:
·
Chapter 10 of the Public Finance Management Act (PFMA) of 1999 as
updated December 2011
·
Treasury Regulations 2001
·
The Public Service Code of Conduct
·
The Disciplinary Code and Procedure, Resolution 1 of 2003.
”
Grounds
of review
[6]
The applicant has submitted that the MEC’s decision must be set
aside on the grounds of legality; in other words, his
decision was
not rationally related to the purpose for which the power was given.
Evaluation
[7]
I shall briefly reiterate the relevant legal principles before
evaluating the MEC’s decision against those principles.
The
legal context
[8]
In
MEC
for the Department of Health, Western Cape v Weder
,
[8]
the LAC considered the application of that section by another
provincial MEC for Health. Davis JA usefully summarised the
relevant
section of the Act:
“
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 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.’ Insofar as it is relevant subsection(3)(b)
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),
a
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.”
[9]
Davis JA considered the various
decisions dealing with questions of legality and administrative
action in considering these provisions
and concluded:
[9]
“
Irrespective of the
classification of the decisions of appellant as administrative
action, appellant’s actions are open to
review in terms of s
158 (1) (h) of the LRA on the ground of legality, a principle that
has been developed significantly by the
courts over the past decade.
So much so, that a parallel system of review for action
which falls outside of the strict
definition of administrative action
in terms of the poorly drafted PAJA, has developed. See the
observations of Cora Hoexter
(2004) 3 Macquarie Law Journal 165
; and
more recently Lauren Kohn
2013 (130) SALJ 8-10.
”
[10]
It is in that legislative context that the MEC’s decision in
this case should be considered.
The
MEC’s decision
[11]
Apart from the unprofessional tone of the decision (using terms such
as “u” for “you”), it is difficult
to discern
any reasoning behind the decision not to reinstate the employee.
[12]
The word “therefore” in the third sentence of the MEC’s
decision is entirely superfluous. It does not follow
on any earlier
reasoning and does not point to a conclusion. It is simply
irrational.
[13]
The MEC then purports to give reasons for his decision. But the only
reason he cites is that his decision “is informed
by the
gravity of the seriousness of the misconduct”.
[14]
However, the employee was not dismissed for misconduct. As the HOD
was careful to point out in her letter of December 2014,
her services
were “terminated by operation of law”.
[15]
The reference to s 187 of the LRA is completely nonsensical. That
section deals with automatically unfair dismissals. It has
no bearing
whatsoever on the employee’s representations to the MEC.
[16]
As far the “legislature prescripts” are concerned, the
MEC simply cites – seemingly at random – an
Act, the
treasury regulations, a code of conduct and a collective agreement,
without any indication why those are relevant to the
case at hand,
and if so, how it informed or influenced his decision.
[17]
There is no indication that the MEC considered the employee’s
representations, setting out the reasons for her absence,
her
illness, the failure of the Department to contact her, or her
attempts to report for work and to speak to the relevant officials
at
all. His “reasons” for refusing reinstatement bears no
relation to the employee’s representations.
[18]
On the facts of the cases in
Weder
and
Mangena
, the LAC
found:
“
[41]
It is common cause that both employees were ill. They may have
been incorrect not to inform appellant of the reasons for their
absence but, that on its own, did not appear to constitute wilful,
nor deliberate conduct on their part. No reason has
been provided, even in the answering affidavit with the benefit
of
hindsight, as to why their continued employment would have been
rendered intolerable. There is, in summary, a stark
absence of a plausible reason/s for the decisions taken by appellant.
[42]
In my view, applying the test of legality, insufficient evidence
was
provided by the appellant to why the decision to reject the
representations made was sufficiently rationally related to the
purpose for which that power was given to appellant. In
particular, and critical to these disputes, insufficient evidence
was
provided as to why a continued employment relationship had been
rendered intolerable by the conduct of these employees.”
[19]
The same considerations apply
in this case. The employee only belatedly informed the Department of
the reason of her absence, being
her illness; but the Department knew
where to find her, and more importantly, the MEC’s decision not
to reinstate her does
not take that factor into account at all. Nor
does he explain why a continued employment relationship would be
intolerable. And
the LAC in
Weder
accepted the
dictum
of Van Niekerk J in
De
Villiers
[10]
that the requirement of ‘good cause’ means that unless
the employer, having regard to the full conspectus of the facts
and
circumstances, is satisfied that the employee’s conduct has
made a continued employment relationship intolerable, it
should as a
general rule approve the employee’s reinstatement.
Conclusion
[20]
The MEC’s decision was irrational. It cannot be said that it
was rationally connected to the purpose of the Public Service
Act.
[21]
Both parties asked for costs to follow the result. I see no reason in
law or fairness to differ.
Order
[22]
I therefore make the following order:
22.1 The decision of the
second respondent, the MEC for the Department of Health, Northern
Cape, of 11 February 2015
refusing to reinstate the employee, Ms
Nomonde Thelma Matshoba, is reviewed and set aside.
22.2 The Department of
Health, Northern Cape is ordered to reinstate Ms Matshoba
retrospectively to 18 December 2014.
22.3 The second respondent
is ordered to pay the applicant’s costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
P Venter
Instructed
by
Adrie
Hechter.
RESPONDENTS:
M Majozi
Instructed
by
Nonyane attorneys.
[1]
Act 103 of
1994.
[2]
The second respondent (the MEC).
[3]
The PSA
(the applicant).
[4]
Act 66 of
1995 (the LRA).
[5]
Resolution
7 of 2000.
[6]
The first
respondent.
[7]
Spelling
and grammar as in the original.
[8]
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); (2014) 35 ILJ 2131 (LAC).
[9]
At par 33.
[10]
De
Villiers v Head of Department: Education, Western Cape
(2010) 31
ILJ
1377 (LC).