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[2018] ZALCJHB 382
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Public Servants Association of South Africa obo Mohlala v Minister of Home Affairs and Others (J1851/2016) [2018] ZALCJHB 382; [2018] 12 BLLR 1203 (LC); (2019) 40 ILJ 415 (LC) (22 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
number: J1851/2016
In
the matter between:
PUBLIC
SERVANTS ASSOCIATION OF SOUTH
AFRICA
obo SHADRACK
MOHLALA
Applicant
and
THE
MINISTER OF HOME
AFFAIRS
First
Respondent
GOVERNMENT
PRINTING WORKS
Second Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Third Respondent
TIYANI
MAKHUBELE
N.O
Fourth Respondent
Heard:
22 August 2018
Delivered:
06 September 2018
Summary: Application to declare
that the Applicant’s dismissal dispute referred to the GPSSBC
remains valid and that the dispute
be set down for arbitration.
Section 17 of the Public Service Act discharge.
JUDGMENT
Introduction:
[1]
The
Applicant acting on behalf of Mr Mohlala filed an application wherein
relief was sought to the effect that Mr Mohlala is not
deemed to be
dismissed as contemplated by the provisions of section 17(3)(a) of
the Public Service Act
[1]
(PSA), with alternative prayers for relief. In argument, Mr Pretorius
acting on behalf of the Applicant abandoned all the relief
sought but
for the prayer that Mr Mohlala’s unfair dismissal dispute that
had been referred to the Third Respondent (GPSSBC)
is valid and
extant and that it be set down for arbitration.
[2]
The
application is opposed by the Second Respondent (the employer).
Background
facts:
[3]
The
employer appointed Mr Mohlala in 2010 as a printer’s assistant.
On his own version he became addicted to drugs and prior
to February
2014, he abused drugs on a daily basis.
[4]
It is
evident from an attendance register that Mr Mohlala’s mother
visited the employer’s premises on 21 January 2014.
His version
is that his mother approached the employer’s management and
more specifically Mr Ntimba, proposing that she would
enrol Mr
Mohlala for rehabilitation at her own cost and she was told that she
could take him for rehabilitation, but that he would
not be paid his
salary during the period of his absence. On 22 January 2014 Mr
Mohlala was called to the office of Mr Monjane,
where Mr Ntimba was
present and they told him that they discussed the issue with his
mother and agreed that he should go to a rehabilitation
centre. Mr
Mohlala was advised not to report for duty as from 1 February 2014
until 1 May 2014 and that his absence would be regarded
as a three
months’ suspension without pay, pending his rehabilitation.
[5]
This
version is disputed by Mr Ntimba. He does not dispute that Mr
Mohlala’s mother visited the employer’s premises
on 21
January 2014, but denies that she had a meeting with him on the said
date. Mr Ntimba further disputes that he was present
when Mr Monjane
may have called Mr Mohlala on 22 January 2014.
[6]
It is
common cause that Mr Mohlala’s mother visited Mr Ntimba on 17
February 2014 and that she advised him that Mr Mohlala
was enrolled
for rehabilitation and that she presented Mr Ntimba with a letter
from the ‘Church of Christ Assemblies’
dated 1 February
2014. The said letter indicated that Mr Mohlala was admitted on 1
February 2014 due to problems with heroin and
that he could not be
released to go back to work before 1 May 2014. Mr Ntimba’s
version is that he told Mr Mohlala’s
mother that he has to
apply for special leave in terms of the special leave policy.
[7]
Mr
Mohlala’s version is that he was forcefully taken for
rehabilitation by members of the ‘Church of Christ Assemblies’
who took him to an undisclosed location where he was chained to the
floor and left in a locked room so that he was unable to maintain
his
addiction. Mr Mohlala submitted that he was detained against his will
and had no prospect to escape.
[8]
Mr
Mohlala was released from rehabilitation on 1 May 2014 and he was
unable to report for duty on Friday 2 May 2014 as he had no
money or
means to travel from Polokwane to Pretoria and his mother was only
able to make arrangements for him to be collected in
Polokwane on 5
May 2014.
[9]
Mr
Mohlala reported for duty on 6 May 2014 when he was informed that his
services were terminated in terms of the provisions of
section 17(3)
of the PSA and that he could make representations to Mr Rossouw, the
then Acting General Manager: Human Resources.
Mr Mohlala made oral
representations to Mr Rossouw, who subsequently issued a written
outcome. In the outcome Mr Rossouw stated
that the employer has
listened to the reasons for Mr Mohlala’s unauthorised absence
but the employer was not convinced that
the reasons are genuine and
that it was not the first time Mr Mohlala conducted himself in this
manner. The employer decided to
endorse the termination of Mr
Mohlala’s services in terms of section 17(3)(a)(i) of the PSA.
[10]
On 4
June 2014, the Applicant referred an unfair dismissal dispute to the
GPSSBC.
[11]
On 23
September 2014 the Fourth Respondent (Mr Makhubele) issued a letter
regarding the Applicant’s referral. Mr Makhubele
is the
GPSSBC’s ‘Administrator: Resident Panellist Unit’.
He is not a duly appointed conciliating or arbitrating
commissioner,
appointed to adjudicate and determine the Applicant’s referred
unfair dismissal dispute. In his capacity as
the administrator, Mr
Makhubele issued the aforesaid letter and indicated that the
Applicant’s referral form had been screened
and found not to be
properly referred, that the GPSSBC will be unable to process the
application and that the case will be closed.
This was done as there
was a deemed dismissal in terms of section 17 of the PSA, wherefore
the GPSSBC lacks jurisdiction to hear
the matter.
[12]
The
Applicant’s unfair dismissal dispute was never set down for
conciliation or arbitration. Mr Makhubele merely closed the
file.
[13]
On 11
May 2015, the Applicant’s attorneys of record submitted a
written application for reinstatement and representations,
as
provided for in section 17(3)(b) of the PSA to the First Respondent
(the Minister). The submission was followed up with a number
of
letters to the Minister requesting an outcome to the application for
reinstatement and to date the Minister has not provided
an answer or
an outcome.
The
relief
[14]
The
Applicant seeks an order to declare that Mr Mohlala’s unfair
dismissal dispute that had been referred to the GPSSBC is
valid and
extant and that it be set down for arbitration.
[15]
In my
view the relief sought is premised on two grounds. Firstly, that Mr
Makhubele had no authority to close the file and to decide
that the
GPSSBC had no jurisdiction. The result of doing so is that the
dispute was not further processed.
[16]
Secondly,
the question whether Mr Mohlala was dismissed or deemed to be
discharged is a factual dispute which is to be determined
at
arbitration.
Mr
Makhubele’s authority to close the file
[17]
In
respect of the Applicant’s case that Mr Makhubele had no
authority to close the file and effectively decided not to process
the matter further, the employer raised a point
in
limine.
This
is that the application filed by the Applicant is an irregular step
in that the Applicant should have filed a review application
because
Mr Makhubele’s decision constituted a ruling, when he executed
his duties as a panellist and the determination to
close the file, is
a ruling that should have been taken on review.
[18]
There
is no merit in the point
in
limine.
[19]
Mr
Makhubele wrote a letter in his capacity as administrator and the
letter he wrote merely communicated his decision to close the
file
after he screened the referral. This letter is no more than a
clerical decision and cannot and does not constitute a ruling,
as
contemplated in the Labour Relations Act
[2]
(LRA). Mr Makhubele was not appointed as commissioner to conciliate
and arbitrate the dispute and no decision he took, could be
a ruling
or arbitration award that could be subject to review in terms of the
provisions of section 145 or 158 of the LRA.
[20]
Furthermore,
it is not open for the administrator to decide on whether the GPSSBC
has or does not have jurisdiction when the dispute
relates to a
deemed discharge in terms of section 17 (3) of the PSA. The
administrator is not entitled to make such a decision
outside the
prescribed dispute resolution process.
[21]
Section
191 of the LRA provides that a dispute about the fairness of a
dismissal may be referred to the bargaining council and once
referred, the bargaining council must attempt to resolve it through
conciliation and if that fails, the dispute must be arbitrated.
In
the process, parties are free to raise jurisdictional issues, which
must be considered and decided by the presiding commissioner.
[22]
It is
not open to the administrator to decide the issue of jurisdiction and
to close the file for that reason, without setting it
down for
conciliation in the ordinary course.
[23]
Mr
Makhubele’s decision to ‘close the file’ has no
legal effect, wherefore it follows that the dispute referred
to the
GPSSBC is still a live and extant dispute.
Section
17(3) of the Public Service Act
[24]
The
Applicant seeks an order that the GPSSBC be directed to set down the
dispute for arbitration in the ordinary course because
the question
whether Mr Mohlala was dismissed or deemed to be discharged is a
factual dispute which is to be determined at arbitration.
[25]
The
employer’s case is that in circumstances where Mr Mohlala’s
services were terminated in terms of section 17(3) of
the PSA, there
is no basis upon which the referral to the GPSSBC can remain valid
and extant. Effectively, once section 17 of the
PSA is raised as
reason for termination, that should be the end of the matter as the
bargaining council has no jurisdiction to
determine an
ex
lege
termination
where no dismissal occurred.
[26]
For
purposes of this application, section 17(3)(a) of the
PSA
is relevant and it provides as follows:
'(3)
(a)
(i)
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 a date
immediately succeeding his or her last day of attendance at his or
her place of duty’
[27]
A
discharge in terms of the provisions of section 17(3)(a)(i) of the
PSA constitutes a termination of employment by operation of
law and
therefore no dismissal exists that could be challenged on the basis
of unfairness.
[28]
Before
the provisions of section 17(3)(a)(i) of the PSA could be relied
upon, an employee must be absent for a period exceeding
one calendar
month and the employer has to show that the employee was absent
without permission and once it is shown, section 17(3)(a)(i)
of the
PSA operates without any act on the part of the employer.
The
question as to whether the requirements of section 17(3)
(a)
(i)
of the PSA have been met or not, is a factual enquiry.
[29]
Whether
the GPSSBC has jurisdiction or not, is a factual question in the form
of a conditional syllogism, “if X, then Y”,
where X is
the condition and Y the consequent. If the condition is present, the
consequent must necessarily also be present. In
a section 17(3)
discharge, the condition is that all the requirements of section
17(3) must be met, and if this condition exists,
the consequence is
that the GPSSBC would not have jurisdiction to adjudicate the
dispute.
[30]
Whether
or not there was a dismissal as contemplated by section 186 of the
LRA or whether there was a deemed dismissal in terms
of the
provisions of section 17(3) of the PSA, is the first issue to be
determined.
[31]
In
casu
it
is clear from the facts placed before me that there is a dispute as
to whether Mr Mohlala had permission to be absent or not
and this is
an issue that has to be considered and decided to determine whether
the jurisdictional pre-conditions have been met
for the operation of
section 17(3)(i)(a) of the PSA.
[32]
If
the requirements of section 17(3)(a)(i) have been met, the bargaining
council has no jurisdiction to hear the dispute. If the
requirements
have not been met, the discharge will not be
ex
lege
and the fairness of the dismissal should be considered.
[33]
Mr
Kirstein for the employer submitted that the Applicant is not
entitled to the relief it seeks because of the delay in bringing
this
application. Although there is no prescribed period within which an
application such as the present application has to be
filed, the
application had to be filed within a reasonable time and the
Applicant did not bring this application within a reasonable
time.
[34]
There
is indeed a lengthy delay from the period Mr Makhubele issued his
letter in September 2014 and the filing of this application
in August
2016. Mr Pretorius for the Applicant submitted that the Applicant
made representations to the Minister in terms of the
provisions of
section 17(3)(b) of the PSA and till today the Minister has made no
effort to consider those submissions and to take
a decision in terms
of the said section.
[35]
The
stance adopted by the employer in this application is that it was not
required of the Minister to attend to the Applicant’s
written
representations as the issue had been dealt with by the Chief
Executive Officer, who was authorized to discharge employees
in terms
of section 17(3) of the PSA. The delegations attached to the
employer’s answering affidavit and upon which
the employer
placed reliance for the stance it adopted, show that the only
delegation to discharge an employee is in terms of section
17(1) of
the PSA and that there is no delegation in terms of section 17(3) of
the PSA
.
[36]
Be
that as it may, the representations made by the Applicant to the
Minister remained unanswered.
[37]
Although
the delay is significant, I am mindful of the fact that there is no
prescribed time period and the fact that steps were
taken to approach
the Minister. A significant delay always raises issues of prejudice
and
in
casu
I
have to strike a balance between the interests and prejudice of the
employer and Mr Mohlala. I am inclined to grant the relief
sought by
the Applicant, notwithstanding the delay, because the LRA affords an
employee the right to have his or her dispute determined
via the
dispute resolution procedures and this right should not be taken away
lightly. In my view the interests of both parties
will be best served
if the matter is to be properly ventilated and decided upon in an
arbitration process.
[38]
This
Court has a wide discretion in respect of costs. Neither of the
parties sought a cost order and this is indeed a matter where
the
interests of justice and fairness will be best served by making no
order as to costs.
[39]
In
the premises, I make the following order:
Order
1.
The
Applicant’s unfair dismissal dispute referred to the Third
Respondent on 4 June 2015 is declared to be extant;
2.
The
Third Respondent is directed to set the dispute down for arbitration;
3.
There
is no order as to costs.
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant: Mr Pretorius of
Macgregor Erasmus Attorneys
For the Second Respondent: Advocate P
Kirstein
Instructed
by: VDT Attorneys Inc
[1]
Act 103 of 1994.
[2]
Act 66 of 1996 as
amended.