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[2018] ZALCJHB 274
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NEHAWU obo M v Minister of Justice and Constitutional Development and Another (J1552/2014) [2018] ZALCJHB 274 (24 August 2018)
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IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J1552/2014
In
the matter between:
NEHAWU
obo D
M
Applicant
And
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
First
Respondent
DEPARTMENT
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Second
Respondent
Heard:
17 July 2018
Delivered:
24 August 2018
Summary:
The applicant seeks to compel the respondent to consider
representations made in terms of section 17(3)(b) of the Public
Service Act after the applicant was deemed dismissed by the operation
of law.
JUDGMENT
SEDILE,
AJ
Brief
background
[1]
The applicant was employed as an administrative clerk since 1975 and
later a prosecutor for the maintenance section in 2003
in the
Johannesburg Magisterial district. The applicant was demoted from a
Maintenance Officer without any explanation thereto
to the lower
position of an Administrative Clerk.
[2]
During the early months of 2006, the applicant suffered from
depression as a result of the stress related to his demotion by
the
respondent and never reported for duties during the period he was
hospitalised.
[3]
The applicant was admitted at Vereeniging Medi-Clinic for three weeks
and was further admitted to Vista Clinic on 17 September
2008 and for
the period of 25
September 2008 until 3 October 2008 and
again on 26 November 2008. During the period that the applicant was
hospitalised, he has
been in contact with his immediate superior Mrs
Sepuru.
[4]
On 9 December 2008, the
respondent issued a letter of dismissal in terms of section
17(5)(a)(1) of the Public Service Act
[1]
(PSA), due to the fact that the applicant absented himself from duty
without prior permission for more than one calendar month.
The
applicant’s discharge date was with effective from 2 December
2008.
[5]
During December 2008, a notice of appeal / representation was lodged
with the respondent and the respondent replied to the request
on 29
July 2013 and promised to revert back to the applicant’s
representation letter and on 18 August 2013, the respondent
indicated
that the application for the applicant was in progress and that the
applicant will be informed once the outcome has been
received from
the Chief Operating Officer of the respondent.
[6]
To date the respondent failed to respond to the applicant’s
representation made in terms of the deemed dismissal notice.
Submission
by the applicant
[7]
The applicant hereby seeks to
compel the respondent to consider the representations made in terms
of section 17(3)(b)
[2]
of the Public Service Act.
Analysis
of the matter
[8]
In order for an employee to be deemed dismissed in terms of s
17(3)(a) of the PSA, he / she must have absented himself / herself
from official duties without permission of the employer or the HOD
for a period exceeding one calendar month.
[9]
Since the deemed dismissal takes effect by operation of law and not
by any act on the part of the employer, the jurisdictional
requirements prescribed by the legislature in s 17(3)(a) of the PSA
must be met before an employee can be said to be deemed dismissed.
[10]
The applicant is therefore entitled to make representations to the
Minister as prescribed in terms of s 17(3)(b) of which the
Minister
is already in possession of such representations made by the
applicant.
[11]
In light of the above the following order is made:
Order
1. The respondent is ordered in terms
of s 158(1)(a)(iii) of the LRA, to consider the representations made
by the applicant and
to respond thereto to the applicant within 30
days from the date of this judgment;
2. There is no order as to costs.
P.
Sedile
Acting Judge of the Labour Court of
South Africa
Appearances:
For
the Applicant: F. Erasmus of Frans F. Erasmus Attorneys
For
the Respondents: K. Pheto
Instructed
by: State Attorney Johannesburg
[1]
103 of 1994, as amended.
[2]
17. Termination of
employment
(3)
(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 of the 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.