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[2018] ZALCJHB 168
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Van Wyk v Acting Superintendent General Department of Education, North West and Others (JR325/14) [2018] ZALCJHB 168 (8 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not Reportable
Case no: JR325/14
In the matter between:
DIRK JOHANNES VAN WYK
Applicant
and
THE
ACTING SUPERINTENDENT GENERAL
DEPARTMENT
OF EDUCATION, NORTH WEST
First
Respondent
THE
MEMBER OF EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF EDUCATION
AND
TRAINING, NORTH WEST
Second
Respondent
MINISTER
OF EDUCATION
Third
Respondent
Heard:
28 February 2018
Delivered:
8 May 2018
Summary:
Review
application –
section 14
of the
Employment of Educators Act 76
of 1998
– the enforcement of the deemed discharge in terms of
section 14(1)(a)
three months after the employee’s return to
work and dismissal of the appeal for reinstatement in terms of
section 14(2)
are reviewable on grounds of arbitrariness and
irrationality.
JUDGMENT
NKUTHA-NKONTWANA J
Introduction
[1]
The
applicant (Mr Van Wyk) was employed as an educator by the Department
of Education, North West Province (the Department) since
1 April
2004. His services were terminated on 11 September 2012 in accordance
with
section 14(1)(a)
of the
Employment of Educators Act (the
Act)
[1]
which states that:
‘
An educator
appointed in a permanent capacity who…is absent from work for
a period of 14 consecutive days without permission
of the employer
shall be deemed to have been discharged from services on account of
misconduct …with effect from the day
following immediately
after the last day on which the educator was present at work.’
[2]
Mr
Van Wyk appealed his deemed discharge from services in terms of
section 14(2)
of the Act which states that:
‘
If an
educator who is deemed to have been discharged under paragraph (a)
…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 re-instatement
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.’
[3]
The
first respondent (Dr Molale) refused to reinstate Mr Van Wyk, stating
that he failed to show good cause. In this application,
Mr Van Wyk
seeks an order reviewing and setting aside Dr Molale’s decision
not to reinstate him. The application is opposed
by the first and
second respondents.
Pertinent facts
[4]
Mr
Van Wyk was placed on precautionary suspension on 6 September 2012
following allegations of sexual harassment. He was asked to
report at
the Matlosana Area Office in Alabama (the Matlosana Office), 13 km
from the school where had been posted and resided.
He challenged his
suspension through a letter dated 10 September 2012 from his
attorneys of record. The Department responded to
his letter on 17
September 2012, dismissing Mr Van Wyk’s request to have his
suspension uplifted. He was, however, assured
that he would still
have access to his place of residence at the school hostel.
[5]
In
the period in-between, Mr Van Wyk did report at Matlosana Office from
7 to 10 September 2012. Even though he did not meet his
supervisor,
Mr Mogotsi, he did report to Ms Senyane. On 10 September 2017, he
requested a day off in order to seek legal advice
and Ms Senyane gave
him permission.
[6]
Thereafter,
Mr Van Wyk did not return to Matlosana Office until 22 October 2012.
He maintained that he had taken ill and was booked
off sick between
11 September and 19 October 2012. Ms Senyane was informed
accordingly, so he further claimed. However, the Department
denied
that it had been informed of Mr Van Wyk’s whereabouts. In any
event, Mr Van Wyk managed to produce the medical certificates
accounting for most of the days he had been absent.
[7]
He
continued to report at Matlosana Office until 26 October 2012. Ms
Senyane informed Mr Van Wyk not to report for duty anymore.
He
refused to accept the instruction unless it was reduced into writing.
On 29 October 2012, Mr Van Wyk reported at Matlosana Office
and met
Mr Mogotsi for the first time. Mr Mogotsi instructed him to leave the
premises. He refused to leave without a written communication.
After
some time, he was presented with a letter from the Kenneth Kaunda
District Office (the District Office) dated 29 October
2012 addressed
to the Matlosana Office stating that:
‘
Mr Van Wyk
was instructed to report at the Area Office, Matlosana, with effect
from 6 September 2012, a document submitted to this
office reflected
that he has not reported for duty from 11 September 2012 and has
since been absent without permission.
In terms of the provisions of section
14(1)(a) of the Employment of Educators Act, 1998 (Act 78 of 1998) as
amended, the educator
is deemed to have been discharged on the
account of misconduct as he absented himself from work for a period
exceeding 14(fourteen)
consecutive days without permission.
Considering that he now has reported
for duty, it is important that he be provided with the opportunity to
submit reasons for his
absence and why he did not inform the employer
of his whereabouts in order to revise or approve a possible
reinstatement as per
section 14(2) of the above mentioned Act.
It is thus requested that he be
informed not to report for duty until the investigation into events
has been finalised and to forward
a written representation on his
absence. Your office will however be informed of the outcome
accordingly.’
[8]
However,
on 6 November 2012, responding to Mr Van Wyk’s attorney’s
letter dated 30 October 2012, the District Office
stated,
inter
alia,
that:
‘…
the
legitimate rights of the employee were never prejudiced in this
matter as he was provided with opportunity to submit reasons
for his
absence. We are also suffice to say that the employer maintained to
accommodate him with full payment in which none of
his benefits were
affected. His services are not yet terminated as the submitted
medical certificates are currently scrutinised
to establish whether
his absence was justified. If justified the disciplinary enquiry will
be imposed and pursued in terms of the
prescribed procedures as
contemplated in Chapter 5 of the
Employment of Educators Act, 1998
…’
[9]
On
14 January 2013, Dr Molale terminated Mr Van Wyk’s services
purporting to act in terms of section 14(1)(a) of the Act
retrospective to 11 September 2012 and that all the payments that
have been made to Mr Van Wyk between 11 September 2012 to 14 January
2013 would be deducted from his pension contributions.
[10]
Mr
Van Wyk lodged an appeal in terms of section 14(2) of the Act through
correspondence from his attorneys’ of record dated
12 and 14
February 2013. Dr Molale responded on 3 May 2013, declining his
appeal. He gave the following reasons:
‘
-
Your client, Mr Van Wyk, failed to show good cause why he should be
reinstated
and only managed to account for a selected number of days
during his absence;
-
It is clear from all reports received from various offices, officials
and directorate that your client was wilful in his actions when he
decided to abscond for lengthy period;
-
Your client, Mr Van Wyk, mainly relied on medical certificates, some
of which he obtained
ex
post facto
and which as a result does not constitute a good cause in terms of
the Act.’
[11]
In
these proceedings, Mr Van Wyk’s impugn is pegged on the
following reasons,
inter
alia
:
11.1.
That
the respondents did not act fairly, reasonably and justifiably in
considering his representations, and/or
11.2.
That
the respondents did not afford him an opportunity to be heard in
order to explain his absence before making a decision; and/or
11.3.
The
decision not to reinstate him was arbitrary and irrational.
Section 158(h) review
[12]
This
application is brought in terms of section 158(1)(h) of the Labour
Relations Act
[2]
(the LRA) which
empowers this
Court to review any conduct by the State in its capacity as the
employer on any grounds that are permissible in law
.
In
Hendricks
v Overstrand Municipality and Another,
[3]
the
Labour Appeal Court, expounding the grounds of review ‘permissible
in law’, had the following to say:
‘
[29] In
sum therefore, the Labour Court has the power under s 158(1)(h) to
review the decision taken by
a presiding officer of a disciplinary
hearing on (i) the grounds listed in PAJA, provided the decision
constitutes administrative
action; (ii) in terms of the common law in
relation to domestic or contractual disciplinary proceedings; or
(iii) in accordance
with the requirements of the constitutional
principle of legality, such being grounds 'permissible in law'. The
findings of the
LAC and the SCA in that regard in
Ntshangase
are not inconsistent with the findings of the Constitutional Court in
Gcaba
or
Chirwa
,
which are restricted to conclusions that unfair dismissals and unfair
labour practices will normally not constitute administrative
action
on account of adequate alternative remedies existing under the LRA.
Neither
Gcaba
nor
Chirwa
made any reference to
Ntshangase
,
or, as I have said, s 158(1)(h) of the LRA.
Chirwa
was decided before Ntshangase, while
Gcaba
was handed down shortly after it. More recently, in
Khumalo
and another v Member of the Executive Council for Education:
KwaZulu-Natal, the
Constitutional
Court cited
Ntshangase
with approval, indicating implicitly that it saw no inconsistency in
the approach followed in that case with its own earlier
pronouncements.’
[13]
In
a recent judgment in a case of
Ramonetha
v Department of Roads and Transport Limpopo and Another
,
[4]
the Labour Appeal Court reaffirmed this Court’s power to
exercise oversight in the form of a review in terms of
section158(1)(h)
on the
ground of legality and the following observations are pertinent:
‘
[21]
It is now trite that inherent in our constitutional order is the
principle of legality in terms of
which by virtue of the rule of law
public functionaries, in their exercise of public power, are required
to act within the powers
granted to them by law and arrive at
decisions which are lawful, not arbitrary and are rationally related
to the purpose for which
the power was given.
There
can be little doubt that the MEC’s decision is capable of
review under s158(1)(h) on the grounds of legality.’
[14]
In
Ramonetha
,
the Labour Appeal Court dealt with section 17(3)(a)(i) of the Public
Service Act
[5]
(the PSA) which is similar to section 14(1)(a) of the Act. The
Department had allowed Mr Ramonetha to resume duties after he had
been absent for more than 30 days. The disciplinary enquiry on a
charge of misconduct was instituted and it was found that Mr
Ramonetha had been discharged from service by operation of law in
terms of section 17(3)(a)(i) of the PSA. Mr Ramonetha was informed
that he had been discharged from service 11 months after his return
to work. The MEC dismissed his appeal and his review application
in
this Court was also unsuccessful. In the appeal, the Labour Appeal
Court, per Savage JA, held that:
‘
[23]
By its nature, an employment contract
is
an agreement in which an employee works for an employer in exchange
for remuneration.
[6]
In
accepting the appellant’s tender of performance and
remunerating him for his services, the only conclusion to be drawn
on
the facts is that, on his return to work, the Department implicitly
reinstated the appellant into his employment with it
.
This is so given that
his
deemed dismissal took effect by operation of law in terms of
s17(3)(a)(i) on “the date immediately succeeding the employee’s
last day of attendance at his or her place of duty” and not on
any later date determined by the employer.
The
appellant
could no longer be deemed to have been dismissed after he had been
reinstated
.
[24]
If
reinstatement did not follow his deemed dismissal, it is difficult to
understand on what basis the Department then accepted the
appellant’s
tender of his services and compensated him for those services
rendered.
Furthermore,
the fact that an investigation may have been contemplated to
determine the reason for the appellant’s absence
from work, or
that such investigation in due course was undertaken, does not alter
the fact that the law prescribed the date on
which the appellant’s
deemed dismissal took effect. Nor does it alter the fact that the
appellant had been reinstated into
his employment subsequent to such
deemed dismissal having been effected.
[25]
The
Department was, following the appellant’s reinstatement, not
entitled thereafter to rely on his deemed dismissal, when
no further
period of unauthorised absence from work had arisen after the
appellant’s return to work. Given such reinstatement,
it was
not open to the Department under s17(3)(a)(i), to indicate, as it did
in its letter of 21 May 2012, 11 months after the
appellant’s
return to work, that his
contract of employment had been terminated by operation of law.
[26]
It
follows that in relying on the appellant’s deemed dismissal
after he had been reinstated, the MEC acted unlawfully, irrationally
and outside of the powers granted to him by law.
This
is so in that it was not legally permissible for the Department on 21
May 2012 to rely on a deemed dismissal, which by operation
of law had
taken effect
on
“the date immediately succeeding the employee’s last day
of attendance at his or her place of duty” and
when
the employment relationship between the parties had thereafter been
restored.
The failure of the MEC on 3 September 2012 to find this to be so in
considering the appellant’s representations in terms
of
s17(3)(b), was therefore unlawful, arbitrary and irrational and the
Labour Court erred in failing on review to find so
.’
(Emphasis added).
[15]
In
the present case, likewise, Mr Van Wyk was absent from duty for about
30 days consecutively. He returned on 22 October 2012 and
reported at
Matlosana Office every day until 26 October 2012. He was informed not
to report for duty because he had been discharged
from service in
terms of section 14(1)(a) of the Act. When challenged, the District
Office summersaulted and informed Mr van Wyk
that he had not been
discharged hence he continued to receive his salary even though he
had been stopped from reporting for duty.
He was informed that his
medical certificates were being scrutinised in order to establish
whether his absence was justified and
to consider charging him for
misconduct in terms of Chapter 5 of the Act.
[16]
The
deemed discharge of Mr Van Wyk was communicated on 14 January 2013,
four months after 11 September 2012, the date he was deemed
to have
been discharged in terms of section 14(1)(a) of the Act, and three
months after he had returned to work and continued receiving
his
salary. Evidently, the
ex
post facto
enforcement of the deeming provision was inconsistent with the
position that the District Office had communicated to Mr Van Wyk
in
its letter dated 6 November 2012 wherein the Department was
categorical that his services had not been terminated.
[17]
In
my view, the only inference to be drawn in the circumstances is that,
by accepting Mr Van Wyk’s tender of his services
on 22 October
2012 and continuing to pay his salary until 14 January 2013, the
Department implicitly reinstated him. Hence, it
threatened to pursue
a disciplinary route in terms of Chapter 5 of the Act.
[18]
In
the circumstances, it was improper for Dr Molale to enforce the
deemed discharge when Mr Van Wyk had already been reinstated
and
remained on the pay roll. That decision was obviously irrational and
ultra
vires
.
[19]
For
completeness sake, I proceed to deal with the impugned decision not
to reinstate Mr Van Wyk. It is clear from the record that
he was off
sick and had submitted the medical certificates which account for the
days he had been absent as part of his appeal
representation to the
Department. The Department did not convene a hearing but dealt with
the appeal on the basis of written representation.
However,
Dr
Molale took issue with the medical certificates, particularly the
fact that some were backdated and could not cover the whole
period of
Mr Van Wyk’s absence. As a result, he found that the applicant
failed to show good cause as required in terms of
section 14(2) of
the Act.
[20]
In
De
Villiers v Head of Department: Education, Western Cape Province
,
[7]
this Court, per Van Niekerk J, defined the applicable test to
arriving at a decision whether an employee failed to show good cause
in section 14(2) of Act to ‘ordinarily mean that unless the
employer, having regard to the full conspectus of relevant facts
and
circumstances, is satisfied that a continued employment relationship
has been rendered intolerable by the employee’s
conduct, the
employer should as a general rule approve the reinstatement of the
employee’.
The
findings in
De
Villiers
were endorsed by the Labour Appeal Court in
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,
[8]
dealing with a similar
provision, the following was said:
‘
[36]
In my view, these principles are applicable to the decisions taken by
the appellant.
Section 17 (3) (1) (i) of the Act
legislatively immunizes an employer from an unfair dismissal referral
where an employee fails
to report for work for a continuous period of
at least fourteen days.
Save
for this legislation, as Van Niekerk J remarked in De Villiers,
supra, ‘no other employer enjoys the right to consider
reinstatement of its employees within its sole discretion’.
Thus, it followed that the requirement of ‘good cause
referred
to in s 14 (2) (or in the present case s 17 (3) (b)) should be
interpreted to mean ‘that unless the employer, having
regard to
the full conspectus of relevant facts and circumstances is satisfied
that a continued employment relationship has been
rendered
intolerable by the employee’s conduct, the employer should as a
general rule approve the reinstatement of the employee’.
(para 30)
[37]
Correctly in my view, Van Niekerk J held that a contrary finding
would represent a breach of an employee’s
right to fair labour
practices and the right to equality (since the respondent in this
case is treated in a manner which grossly
departs from the manner in
which other employees in a similar position are treated).
The requirements of legality as outlined prevent the employee from
being helpless pursuant to an employer’s arbitrary decision.
In particular, given an employee’s rights to fair labour
practices, the decision must be tested for rationality as outlined
.’
(Emphasis added).
[21]
In
the present case,
it
is not disputed that
Mr
Van Wyk had been booked off sick. The medical certificates
constitute, at least, a
prima
facie
proof that he was not fit to report for duty. Mr Van Wyk contended
that it was practice at his school that the medical certificates
would be submitted upon return to work. In the absence of any
evidence to the contrary, Mr Van Wyk’s failure to report for
duty could not have been interpreted as wilful.
[22]
Another
consideration that eloped Dr Molale is that Mr Van Wyk had taken ill
whilst he was on precautionary suspension from his
duties as a
teacher but reporting at Matlosana Office. Nonetheless, he continued
residing at the school hostel. In essence, the
school and the
learners were not affected by his absence. It is, therefore,
inconceivable how his absence due to ill-health could
have rendered
the continued employment intolerable.
[23]
Clearly,
Dr Molale’s
decision
was irrational
as
he failed to
take
into account the relevant facts and, as such, based his decision on
irrelevant considerations
.
[9]
Conclusion
[24]
In
all the circumstances, it is definite that Dr Molale acted
irrationally
and arbitrarily. It follows that the
decision
to enforce the deemed discharge in terms of section 14(1)(a) and the
decision not to reinstate Mr Van Wyk in accordance
with section 14(2)
stand
to be reviewed set aside for
offending
the principle of legality.
[25]
In
view of the conclusion I have reached above, the only issue that is
lingering is the relief.
Mr
Van Wyk requested that he be reinstated retrospectively without loss
of benefits. There is no evidence on record as to why his
requested
should not be acceded to. Though he had been on suspension on
allegation of misconduct, he had not been charged at the
time of his
deemed discharge. In my view, the
status
quo ante
should be restored, which means that Mr Van Wyk would still be on
precautionary suspension and reporting at Matlosana Office as
a
condition of his suspension.
[26]
However,
when it comes to back payment, I have taken into consideration the
manifest delay in prosecuting this matter. It is heard
almost six
years after the deemed discharge of Mr Van Wyk. Before approaching
this Court, Mr Van Wyk had approached the Education
Labour Relations
Council (the ELRC). On 4 November 2013, the ELRC ruled that it had no
jurisdiction to deal with the matter. On
2 September 2016, Van
Niekerk J dismissed the matter due to non-appearance by Mr Van Wyk.
He subsequently launched a rescission
application which was granted
by Prinsloo J on 26 May 2017. In my view, the Department should not
be burdened with the delay that
had been occasioned at the instance
of Mr Van Wyk. It would, therefore, be fair to both parties that the
back payment be limited
to 24 months.
[27]
Lastly,
on the issue of costs, as per the recent Constitutional Court
judgment
in
Zungu v
Premier of the Province of KwaZulu-Natal and Others,
[10]
the rule of practice that costs follow the result does not
apply in matters before this Court as orders of costs in this
Court
are to be made in accordance with the requirements of the law and
fairness. In the present case, however, it is clear that
the first
and second respondents acted frivolously in opposing this
application. Mr Van Wyk, an individual litigant, was forced
to employ
the services of his attorneys of record in order withstand the full
might of the first and second respondents’
opposition when they
ought to have been better advised on the prospects of not succeeding
given the circumstances on this case.
[28]
In
the premises, I make the following order
Order
1.
The
decisions by the first respondent to, firstly, enforce the
applicant’s deemed discharge in terms of section 14(1)(a) and,
secondly, to dismiss the applicant’s appeal in terms of
section
14(2)
of the
Employment of Educators Act, 76 of 1998
, are reviewed
and set aside.
2.
The
applicant is reinstated in the employ of the Department of Education,
North West Province on the same terms and conditions as
those which
governed his employment immediately prior to his deemed discharge in
terms of section 14(1)(a) of the Act with back
payment equivalent to
24 months’ salary.
3.
The first
and second respondents to pay the applicant’s costs, excluding
the costs of the rescission application.
_____________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the applicant:
Advocate JC Marneweck
Instructed
by
Pieter Strydom Attorneys
For the
respondents:
Advocate MC Moagi
Instructed
by
J Nkomo Attorneys
[1]
76 of 1998 as
amended.
[2]
Act 66 of 1995 as amended.
[3]
(2015) 36 ILJ 163 (LAC); See
also
National Commissioner of the South African Police and Another v
Nienaber N.O. and Another
[2017] ZALCCT 17; (2017) 38 ILJ 1859 (LC);
[2017] 8 BLLR 840
(LC) at
paras 6 and 8.
[4]
(JA104/2016)
[2017] ZALAC 68
para 21.
[5]
103 of 1994 as amended.
[6]
Board of Executors
Ltd v McCafferty
(
1997)
ILJ 949 (LAC); [
1997]
7 BLLR 835
(LAC)
.
[7]
[2009] ZALC 139
; (2010) 31 ILJ 1377
(LC) at paras 29 and 30.
[8]
[2014] ZALAC 13
;
[2014] 7 BLLR 687
(LAC); (2014) 35 ILJ 2131 (LAC) at paras 36 and 37.
[9]
See Democratic Alliance v
President of the Republic of South Africa and Others
2013 (1) SA 248
(CC) at para 39 where the Constitutional Court held
that:
‘
If
in the circumstances of a case, there is a failure to take into
account relevant material that failure would constitute part
of the
means to achieve the purpose for which the power was conferred.
And if the failure had an impact on the rationality
of the entire
process, then the final decision may be rendered irrational and
invalid by the irrationality of the process as
a whole’.
[10]
[2018] ZACC 1
at para 24 to 26.