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[2018] ZALCJHB 455
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Nyamane v MEC: Free State Department of Health (J34/2017) [2018] ZALCJHB 455; [2019] 12 BLLR 1371 (LC) (31 August 2018)
T
HE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
case
no:
J34/2017
In
the matter between:
M
E
NYAMANE
Applicant
and
THE MEC: FREE STATE
DEPARTMENT
OF
HEALTH
Respondent
Heard
:
23 August 2018
Delivered
:
31 August 2018
Summary:
An
application to review and set aside a decision not to approve
re-instatement of the applicant who was deemed discharged by the
operation of law. The requirements of
good
cause
shown
considered. The Labour Appeal Court’s decision in M
EC
for the Department of Health Western Cape v Weder
[1]
considered in line with what was said in
De
Villiers v Head of Department: Education Western Cape Province
[2]
and applied. Held: (1) The review application is granted and the
matter remitted to the first respondent. Held: (2) There is no
order
as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is a
review application, seeking to review a decision by the respondent
refusing to approve the re-instatement of the applicant.
Although it
seemed that the question whether refusal to reinstate amounts to an
administrative action or not is not settled
[3]
,
the Labour Appeal Court (LAC), later seems to have settled the issue
in
Ramonetha
v Department of Roads and Transport Limpopo and another
[4]
,
when the court said:
“
[19]
The current matter is concerned with the exercise of a power in terms
of s17 (3) (b), which neither
has its source in the contract of
employment, nor falls within the ambit of the LRA’s unfair
dismissal or unfair labour practice
jurisdiction. As such, the
decision whether to approve the reinstatement of an employee on good
cause shown, while the decision
is taken by the state as an employer,
it
involves the exercise of public power by a public functionary
.”
[2]
It is by
now settled that section 158(1)(h) of the Labour Relations Act
[5]
(LRA) is available to review the decisions of the state in its
capacity as an employer. I shall proceed to consider this matter
under the provisions of the LRA as opposed to Promotion of
Administrative Justice Act
[6]
(PAJA). It is also settled that the principle applicable in section
158 (1) (h) is that of legality.
[7]
Background
facts
[3]
Proper analysis of the facts of this case
is crucial for the determination of whether the decision of the
respondent is reviewable
or not. The applicant has been in the employ
of the Free State Department of Health since 2005. He was employed as
an Emergency
Care Worker. Since 2013, he was a registered student at
the Central University of Technology (CUT), studying a NDIP Emergency
Medical
Care course. On or about 17 January 2013, the applicant was
involved in a motor vehicle accident and sustained a fracture on his
right leg. Pursuant thereto, he was booked off duty from 17 January
2013 up to and including 25 March 2013. There is a dispute
as to
whether he submitted the relevant medical certificates or not.
However, given the basis of the challenge in this matter,
I need not
resolve this dispute.
[4]
On
2 April 2013, the applicant reported for duty. Upon arrival, he was
informed that his employment had terminated. The applicant
disputes
that he had received any letters advising him of the unauthorized
absence. Again, it is unnecessary to resolve this dispute
of fact.
Reason being that, there is no dispute that the provisions of section
17 (3)(a)(i) of the Public Services Act
[8]
(PSA) had kicked in. The applicant was advised to invoke the
provisions of section 17(3)(b). Indeed, on 31 March 2014, the
applicant
submitted representations to the respondent. It is
important at this stage to flash out the representations, the
applicant contends
as follows:
“
REPRESENTATION
6
I hereby make representation for reinstatement in the public service
to
my former post, because my absence was occasioned by the fact that
I was involved in an accident.
7
Upon being involved in an accident I was hospitalized –
see
medical certificates.
8
My supervisor (Mr Mohono) was made aware of my medical condition and
hospitalization
thereof in that original medical certificates were
served to him accordingly.
CONCLUSION
9
It is my submission that
good cause
has
been shown for my absence and your approval for my reinstatement is
justifiable.
10
Therefore, with the powers vested in you by section 17 (5) (b) of the
Public Services
Act, 1994 you are hereby requested to approve my
reinstatement accordingly.
[5]
Quoted above is the full extent of the
representations placed before the respondent in order to exercise his
statutory power. It
is apparent that on or about 2 October 2015, one
Advocate Moshodi, Senior Employment Relations Officer, compiled an
investigation
report which was supported by the Deputy Director
General: Cooperate Services, Mr Mtakati and was recommended by Dr
Motau, Head:
Health. The investigation report was then approved by
the respondent on 19 October 2015. The salient parts of the report
reads
thus:
“
4.
MOTIVATION
4.1
The Health Human Resources Circular No 49 of 2010 indicates that in
all cases where an official
is absent without permission for a period
longer than a calendar month, he or she is dismissed by operation of
law.
4.2
It is important to note that he has a contractual obligation towards
the Free State Department
of Health and it is an official’s
responsibility to report where they are.
4.3
It is therefore
one’s
submission
[9]
that the Department would not be unfair to terminate Mr. Nyamane’s
employment contract due to abscondment.
4.4
Mr. Nyamane lied when he claims to be hospitalized as a result of the
accident, when in
fact he was attending classes at the Central
University of Technology.
5
RECOMMENDATION
5.1
That the MEC: Health confirms the discharge of Mr. M. E Nyamane
consistent with the provisions
of section 17 (3) (a) (i) of the
Public Service Act.
5.2
Should
approval
be granted
[10]
,
the attached letter bearing the MEC’s signature will be
dispatched to the Applicant (
Annexure
F
).”
[6]
On 6 November 2015, the respondent made the
impugned decision. The relevant portions of the letter containing the
decision reads
thus:
“
2.
You are informed that after due consideration of the merits of your
written representation
against your discharge from the Public
Service, I have decided to dismiss your request and
confirm
the discharge from Public Service
[11]
.”
[7]
It does seem that due to the delay in
taking a decision as required by the law, the applicant launched a
mandamus
application in this court. The application is still pending under
case number J2006/2015. It is apparent that the applicant only
became
aware of the impugned decision on 2 July 2016.
[8]
As advised in the letter containing the
decision, the applicant referred a dispute to the bargaining council.
On 1 December 2016,
the bargaining council correctly issued a ruling
declining jurisdiction. On or about 16 January 2017, the applicant
launched the
present application. The application stands opposed.
Grounds
of Review
[9]
The applicant contends that the decision of the
respondent is irrational and arbitrary.
Evaluation
[10]
For the longest of time matters of this nature
were dubbed “decision refusing to reinstate”. I have a
difficulty with
this labelling. The source of my discomfort emanates
from my reading of the relevant provisions of the law in question, in
this
instance section 17 (3) of the PSA. In order to demonstrate
that, I shall quote the provisions of the relevant section. It reads
as follows:
“
17.
Discharge of officers –
(1) …
(2) …
(3) …
(4) …
(5)
(a) (i) An officer, other than a
member of the
services or an educator or a member of the Agency or
the Service,
who absents himself or
herself from his or her official duties
without permission of his or her head of the department, office or
institution for a period exceeding one calendar month, shall
be
deemed to have been discharged from the
public service
on account of misconduct
with immediate effect from the date immediately succeeding his or her
last day of attendance at his or
her place of duty.
(ii)…
(b)
If such an officer who is deemed to have been so discharged,
reports
for duty
at any time after the expiry
of the period referred to in paragraph (a), the relevant executing
authority may, on
good cause shown
and notwithstanding anything to the contrary contained in any law,
approve the reinstatement
of
that officer 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.”
[11]
As
to why this section is still in the statute books, I am unable to
understand. Particularly in the face of the LRA. There seem
to be no
objective policy considerations why public servants should be treated
different from other employees. Ordinarily what
this section seeks to
deal with is abscondment and or desertion, which could be dealt with
in terms of the LRA. The section deems
the employee to be discharged.
In other words, by not reporting for duty for the period mentioned, a
public servant discharges
himself or herself from the public service.
It is by now settled law that this discharge does not amount to a
dismissal in terms
of the Labour Relations Act
[12]
(LRA). What is curious though for me is that the legislature somewhat
leaves room for the said public servant to report for duty.
Clearly,
a dismissed employee would ordinarily not report for duty, reason
being that the employment relationship had ended. In
other words,
there is no longer an employer – employee relationship. This
statutory possibility to report for duty, to my
mind, suggests that
an employee simply reinstates himself or herself in a sense. It seems
sensible to say that a public servant
who discharges himself or
herself can also reinstate himself or herself. The position I am
propagating seem to have received approval
in
Ramonetha
supra
.
The court held thus:
“
[23]
By its nature, an employment contract is an agreement in which an
employee works for an employer in
exchange for remuneration. In
accepting the applicant’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)…The appellant
could no
longer be deemed to have been dismissed after he has been
reinstated.”
[12]
Although, the LAC refers to implicit reinstatement
by the department, what is clear from the facts of that case, is that
Ramonetha
was absent without permission for a period of four months.
Because dismissals in this situation happens by operation of law, a
decision is not required, therefore Ramonetha was deemed dismissed by
operation of law four months ago. Ramonetha simply reported
for duty
on 17 June 2011, without any direction and or decision to be
reinstated by the MEC. The MEC took a decision only on 3
September
2012. The LAC came to the conclusion that reinstatement was implicit
because of payment of remuneration. Much as I accept
that to be the
correct legal position, I venture to say that reporting for duty is
tantamount to tender of services, even if an
employee is not
remunerated
per se
,
an employer is obliged to pay remuneration, once there is evidence of
tender of services. Therefore, in my view, reinstatement
happens once
an employee reports for duty and is allowed to do so by the
provisions of the section, thus, self-reinstatement occurs.
If I am
right, an employee once self-reinstated can no longer be deemed as
being discharged.
[13]
However, what the legislature sought to do, in my
mind, is not to allow such an officer to have the final word as in
reinstating
himself or herself. The first thing that an officer is to
do is to report for duty. If the legislature required a decision to
reinstate
before reporting for duty as it is ordinarily the case, the
legislature would have stated that before reporting for duty, an
employee
must seek reinstatement from the executing authority first.
In terms of the LRA, reinstatement is a remedy to be afforded to the
dismissed employees by either an arbitrator or the Labour Court. The
dictionary meaning of the word reinstatement is
to
restore to a previous condition or position.
[14]
Reinstatement employed in the above section, in my
view, is not a remedy as contemplated in the LRA. That being the
case, it must
then be afforded its grammatical meaning. To my mind,
reporting for duty may not be different from reinstatement in the
context
of this section. Therefore, in my judgment, an officer who
reports for duty reinstates himself or herself. However, in the
context
of the above section, the executing authority is required by
law to approve the self-reinstatement as it were. In other words, the
executing authority is vested with a discretion to approve the
reporting to duty, after the historical deemed discharge. Therefore,
in my view, if the self-reinstatement, as I call it, is not approved,
it cannot be said that the executing authority refused to
reinstate.
[15]
The grammatical meaning of the word approve is to
consent, to officially or formally, confirm or sanction. On the other
hand, refuse
means to indicate unwillingness to do. Therefore, in my
view, the statutory duty of the executing authority is to approve the
reporting
for duty or the reinstatement in its grammatical meaning. I
must emphasize that the executing authority does not have powers
similar
to those of an arbitrator and the court to order
reinstatement as a remedy.
[16]
The jurisdictional requirements for the approval
to report for duty or reinstatement is the showing of
good
cause
. Just to conclude my point, these
type of applications should appropriately be labelled failure to
approve the reporting for duty
or reinstatement. Such labelling in my
view accords with the wording of the section.
[17]
The difficult part in this section arises when, as
it was the case in this particular matter, the repository of power
fails to exercise
the discretion to approve. A number of questions
arises. Should the official stop reporting for duty if the approval
is not forthcoming?
Should the official continue reporting until told
otherwise? The telling otherwise, being (stop reporting for duty), is
it a dismissal
within the meaning of section 186 of the LRA? I am not
sure if I have answers to all these questions at this stage.
[18]
It
is apparent to me that what would kick the executing authority into
action is the reporting for duty. In other words, once the
executing
authority gains knowledge that an officer deemed discharged has
reported for duty, applying my theory, self-reinstated
himself or
herself, he or she is required to exercise discretion whether to
approve such or not. However, it is apparent that what
would guide
him or she in the approval exercise is the showing of
good
cause
.
It does seem to me that on a proper reading of the section an
official is not obliged to ignite the showing of the
good
cause
.
However, for good measure, it seems correct for the official to
somewhat legalize his or her reporting for duty. It also seems
to me
that if he or she continues to report for duty without the approval,
his or her reporting for duty is unlawful
[13]
.
I do not wish to decide this issue; I am just mentioning it in
passing. It may be decided some other time if not already decided.
What
constitutes good cause?
[19]
To
my mind, in order to determine the legality or otherwise of the
decision to not approve the reinstatement, a court of review
must be
satisfied that there was no
good
cause
shown therefore, in not approving, the executing authority was acting
within the confines of the law. The legal meaning of the
phrase –
good
cause
- is adequate or substantial grounds or reasons to take a certain
action or to fail to take an action prescribed by law. Courts
have
been warned not to attempt a precise meaning of this phrase. In
Pieter
Westerman Colyn v Tiger Foods Industries Ltd t/a Meadow Feed Mills
Cape
[14]
,
Jones AJA had the following to say:
“
[11]
…The authorities emphasize that it is unwise to give a precise
meaning of the term
good
cause
.
As Smalberger J put it in
HDS
Construction (Pty) Ltd v Wait:
[15]
“
When dealing with
words such as “good cause” and “sufficient cause”
in other Rules and enactments the Appellate
Division has refrained
from attempting an exhaustive definition of their meaning in order
not to abridge or fetter in any way the
wide discretion implied by
these words (
Cairns’ Executors v Gaarn
1912 AD 181
at 186;
Silber v Ozen Wholesalers (Pty)
1954 (2) SA 345
(A) at 352-3
).
The Court’s discretion
must be exercised after a proper
consideration of all the relevant circumstances.””
[20]
In a situation where a court assesses
good
cause
it is generally expected for a
party to show good cause by (a) giving a reasonable explanation of
his default; (b) showing that
he or she is
bona
fide
in his or her quest; (c) he or she
has a
bona fide
claim or defence and some prospects of success. I am of a view that
when an executing authority assesses
good
cause
he or she must properly consider
all the relevant circumstances. Should it be shown that he or she
failed to consider all the relevant
circumstances, then he or she
would have failed to meet the statutory obligation and thus his or
her decision thereafter would
be incapacitated by the constitutional
principle of legality or rationality.
What
are the relevant circumstances?
[21]
My brother Van Niekerk J in
De
Villiers v Head of Department: Education, Western Cape
,
found persuasion in the reasoning of Davis J and Allie J in the
matter of
De Villiers v Minister of
Education Western Cape Province and another
and
concluded thus:
“
[30]
…It is in
this context
that the requirement of “good
cause” referred to in s 14 (2) must be read. This would
ordinarily mean that unless the
employer, having regard to the full
conspectus of relevant facts and circumstances, is satisfied that
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.”
[22]
My brother’s reading of the high court
judgment he relied on is that it is not required that an employee,
who bears the
onus
to show
good cause
,
to show that the refusal to reinstate would amount to an unfair
dismissal. It does seem to me that Davis J and Allie J also found
persuasion in other High Court judgments, which suggested that a
deemed discharge should be treated the same way as dismissal for
misconduct, thus Schedule 8 of the LRA must be applied.
[23]
The approach by my brother was received with
approval by the LAC in
Weder
(supra). The LAC said:
“
[42]
In my view, applying the test of legality, insufficient evidence was
provided by the appellant as to
why the decision to reject the
representations made was sufficiently rationally related to the
purpose for which the 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.”
[24]
As
a court below, I am bound by the
Weder
decision, and it is apparent to me that the
Ramonetha
decision approved it. I however need to deliver a comment on this. In
my understanding of the law so far, discharge by operation
of the law
is not a dismissal within the contemplation of the LRA. In fact the
Constitutional Court
[16]
had
the following to say:
“
[16]
Some 11 years after
Louw
,
whilst dealing with a similar situation, the Supreme Court of Appeal
in
Pheneth
i
endorsed
Louw
:
“
In
my view, the
Louw
judgment
is definitive of the first issue in the present matter, whether the
appellant’s discharge constitutes an administrative
act…There
was no suggestion that
Louw
was wrongly decided. There being no “decision” or
“administrative act” capable of review and setting aside,
the second part of the first prayer in
casu
,
viz that the decision be declared an unfair labour practice falls
away”
I
cannot fault the Labour Court and Labour Appeal Court for relying on
the principle established in the two cases cited above.”
[25]
That
being the case, I fail to understand why the provisions of Schedule 8
of the LRA must feature in a section 17 (3) (a) (i) discharge.
Davis
J and Allie J sought refuge from item 3 (4) of the Schedule 8 of the
LRA simply because schedule 2 of the Employment of Educators
Act
(Educator’s Act)
[17]
was, in their view, applicable since the discharge must be treated
the same way as in section 18 (2)
[18]
of the Educator’s Act. Similarly, my brother, Van Niekerk J
sought fortification from the selfsame schedule 2 of the Educator’s
Act.
[26]
The
schedule makes specific reference that the Code of Good Practice is
part of Schedule 2
[19]
. It
seems to me that the reason why refuge was sought in section 18(2)
was that in the similarly worded section 14(2) of the Educator’s
Act, reference is made to discharge from the service on account of
misconduct.
What
then is the meaning of the phrase discharged on account of misconduct
[27]
It seems to me that the phrase on account of means
‘because of’. Therefore, it seems safe to conclude that
an employee
who does not report for duty for the period mentioned in
the section commits a misconduct. It is logical to say so because
abscondment
is considered to be some form of misconduct in many
employment instances. Desertion is also considered as some form of
misconduct.
However, where logic is defied in my mind is where such a
misconduct does not lead to a dismissal as defined in section 186 of
the LRA.
[28]
Such a defiance of logic is observed when the
selfsame section allows an employee who has committed misconduct to
report for duty.
It is not the requirements of the section that the
discharged officer must first obtain permission to report for duty.
As discussed
above, there may be situations where discharged
employees report for duty and continue as if nothing has happened
even in instances
where the jurisdictional requirements of the
discharge are present. Think of a situation where a public servant
work at remote
areas with no other public servants. Such a servant
may be absent for a period contemplated in the section, without
permission
and return after stated period. Effectively such a public
servant had committed a misconduct but because he or she can simply
report
for duty, the relevant executing authority may not know that
at a particular stage the servant was discharged by operation of law.
With all those possibilities, I am not sure if there is any good
reason in law in equating the deemed discharge with a dismissal
for
misconduct, to a point that as part of
good
cause
intolerability of continued
employment ought to be considered.
[29]
As I pointed out above, the executing authority
would not be ordering reinstatement as a remedy within the
contemplation of the
LRA. I understand
Ramonetha
to say that the LRA’s unfair dismissal regime finds no
application in the deemed discharge. If my understanding is correct,
then anything that has to do with the LRA, Schedule 8 included,
should stay far away from the deemed discharges.
Should
the requirements applicable to a dismissal in terms of the LRA apply
to the discharged servants?
[30]
As pointed out above, Davis J and Allie J resorted
to item 3 (4) of Schedule 8 of the LRA. The item provides thus:
(4)
Generally, it is not appropriate to
dismiss
an employee for the first offence, except if the misconduct is
serious and of such gravity that it makes a continued employment
relationship intolerable…
[31]
The import of item 3(4) is somewhat repeated in
item 7(b)(iv), which provides that
any
person who is determining whether a dismissal is unfair
should consider – whether or not dismissal was an appropriate
sanction for the contravention of the rule or standard. Strictly
speaking, since the discharge is not a dismissal within the
contemplation of the LRA, it must follow that the executing authority
is not the
any person
contemplated in item 7(b)(iv).
[32]
I am in agreement with my brother Van Niekerk J
when he concluded that the non-approval to reinstate does not morph,
as it were,
the discharge into a dismissal within the contemplation
of section 186 of the LRA. Just as a side issue, in terms of section
186
(2)(c), it is an unfair labour practice to refuse to reinstate a
former employee in terms of any agreement. Is it better perhaps
to
amend the section to include the words,
in
terms of any law
– which may
cover the deemed discharge situation as I sought to interpret it to
mean self-reinstatement? Perhaps not. Nonetheless,
with that
conclusion by my brother, it must be accepted that at no stage does
the deemed discharge morph into a dismissal within
the contemplation
of the LRA to allow any person dealing with it to take into account
any law that regulates dismissal within the
contemplation of the LRA.
Therefore, I take a view, in passing though, that the requirements
applicable to a dismissal in terms
of the LRA are not applicable to
the discharge in terms of section 17 (3) (a) (i) of the PSA.
The
principle of rationality
[33]
The statutory power approbated to the executing
authority in the relevant section is to approve reinstatement of the
discharged
officer. The section further spells out how he or she may
execute that power. He or she may do so only on
good
cause
shown. The question that
immediately crops up is whether once the executing authority decides
that
no good cause
is
shown would that be enough to satisfy the principle of legality and
or rationality?
[34]
It is unfortunate that the Constitutional Court in
Grootboom
seem to have left open the question whether the decision to approve
or not approve amounts to an administrative action or not?
However,
it seems that
Ramonetha
answered that question now. A finding on this issue by the
Constitutional Court in particular would have finally settled the
question.
But as I say, for me as a court below, the LAC has finally
answered the question. That seem to leave into account only the
legality
and or rationality principle much to the chagrin of the
reasonableness principle as developed in
Bato
Star
.
[35]
In
DA
v President of the RSA
[20]
,
Yacoob ADCJ, as he then was, stated the following about rationality:
“
[27]
The Minister and Mr Simelane accept that the ‘executive’
is constrained by the principle that
[it] may exercise no power and
perform no function that conferred… by law and that the power
must not be misconstrued. It
is also accepted that the decision must
be rationally related to the purpose for which the power was
conferred. Otherwise the exercise
of the power could be arbitrary and
at odds with the Constitution. I agree. “
[36]
It
has been confirmed that rationality and reasonableness are
conceptually different. In
Albutt
v Center for the Study of Violence and Reconciliation and others
[21]
,
the following was said:
“
The
Executive has a wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts may not
interfere
with the means selected simply because they do not like them, or
because there are other more appropriate means that
could have been
selected. But,
where the decision is
challenged on the grounds of rationality, courts are obliged to
examine the means selected to determine whether
they are related to
the objective sought to be achieved. What must be stressed is that
the purpose of the enquiry is to determine
not whether there are
other means that could have been used, but whether the means selected
are rationally related to the objective
sought to be achieved. And
if, objectively speaking, they are not, they fall short of the
standard demanded by the Constitution.”
[37]
Textually,
it seems to me that the only power exercisable is that of approving
the reinstatement, however on contextual reading,
regard being had to
the phrase “
good
cause shown
”,
it suggests that the other implied power is that of not approving.
Not approving is another means available to an executive
authority to
select. Therefore, applying the
Albutt
approach, the means to be examined is that of not approving in this
instance. What a court seeks to establish in the examination
of the
means is the rational relation between the means and the objective
sought to be achieved by not approving. The constitutional
court
clarified the issue further in
Minister
of Defence and Military Veterans v Motau
[22]
and said:
“
[69]
The principle of legality requires that every exercise of public
power, including every executive act,
be rational. For the exercise
of public power to meet this standard
it
must be rationally related to the purpose for which the power was
given…”
[38]
Section
23 (1) of the Constitution provides that everyone has the right to
fair labour practices. The national legislation passed
to give effect
to this right is the Labour Relations Act. The PSA is not legislation
passed to give effect to section 23 (1).
[23]
The purpose of the PSA can be gleaned from the preamble of the Act
itself, which reads thus:
“
To
provide for the organisation and administration of the public service
of the Republic, the regulation of the conditions of employment,
terms of office,
discipline,
retirement and
discharge of members of
the public service
and matters
connected therewith.”
[39]
It would not be inimical to the exercise of the
powers in the section to seek to achieve discipline within the public
sector. Ensuring
discipline within the public sector is one of the
purposes of the PSA. Where the power is exercised in order to ensure
discipline
within the public service would that be irrational? It
seems logical to suggest that public servants who absent themselves
without
permission are ill disciplined. It must be for that reason
that the legislature somewhat suggested that being deemed dismissed
would be on account of misconduct. Could it be said that not
approving reinstatement of an ill-disciplined public servant is
irrational
simply because the decision maker did not take into
account the requirements of another legislation, which is not the
source of
its power? In my view not. The constitutional court told us
a long time ago that no one would seek a relief directly from the
constitution,
where there is national legislation dealing with that
right. As I pointed out above the legislation seeking to give
expression
to the right to fair labour practices is the LRA. As
Ramonetha
,
correctly in my view, held that the LRA finds no application in this
types of dismissals, then a right to fair labour practices
must not
feature at all. In
Motau
,
the constitutional court said:
[71]
A rational link therefore exists
between
the need to address the failures of Armscor and the termination of
services of General Motau and Ms Mokoena: with them at
the helm, the
Corporation was not operating in an efficient manner and was not
properly fulfilling its statutorily prescribed mandate.
Section 8 (c) was properly used by the Minister, in the exercise of
her
executive oversight
,
to abate the problems that had set in at Armscor. Given this, I
believe that the Minister’s decision was rational.
[40]
It
is interesting to note that section 8 (c) of the Armaments
Corporation of South Africa, Limited Act
[24]
(Armscor Act) provides that (a) member of the Board must vacate
office if his or her services are terminated by the Minister
on
good cause shown
.
As a final point, it bears mentioning that in terms of section 195
(1) of the Constitution, public administration must be governed
by a
principle of high standard of professional ethics which must be
promoted and maintained. It does seem to me that if the non-approval
seeks to achieve discipline within the public service, same would be
rational even in instances where there is no evidence of vindication
of the right to fair labour practices.
Is
the decision not to approve reviewable on the
Weder
approach?
[41]
The full extent of the respondent’s decision
is recorded in the letter dated 06 November 2015. I take a view that
the investigation
report, although approved by the respondent does
not contain the views of the respondent but those of Advocate
Moshodi. There is
no evidence before me to suggest that the
respondent delegated his powers to Advocate Moshodi. It was Advocate
Moshodi who submitted
that the Department would not be unfair to
terminate the applicant’s employment contract due to
abscondment.
[42]
The letter of the respondent is bereft of the
reasons why continued employment would be intolerable. The affidavit
in opposition
is deposed to by a Senior Employment Relations Officer.
The respondent did not file a confirmatory affidavit. It is unclear
to
the court why the person whose decision is impugned does not give
testimony in defence of the decision. Conspicuously absent in
the
evidence of the Senior Employment Relations Officer are the reasons
why continued employment would be intolerable. According
to the LAC,
this is critical for the purposes of determining rationality. On this
basis alone, the decision is reviewable on the
principle of legality.
The
issue of the relief
[43]
The applicant asked the court to substitute the
decision with one that the applicant is re-instated with
retrospective effect from
2 April 2013. The basis upon which, I
review the decision of the respondent is more like suggesting that he
failed to apply his
mind. Had he applied his mind, he would have
considered a relevant factor which is whether continued employment is
or is not tolerable.
Having failed to do so, he did not exercise his
powers as required by the law. Therefore, it is as good as not having
exercised
a statutory power. It is not the task of this court to
approve reinstatements. This not being a reinstatement as a remedy
within
the contemplation of the LRA, this court, in my view, is not
empowered to approve the reinstatement of the applicant. I believe
that this court’s powers in section 158 (1) (h) is to review
the decision of the state as an employer on such grounds as
are
permissible in law.
[44]
In
the
De
Villiers
matter, my brother, Van Niekerk J, took a view that the exception to
the general rule was applicable – the end results would,
in any
event, be a foregone conclusion in the matter before him. I doubt
whether such would be the case in the matter before me.
There is an
allegation, which, it seems was not properly investigated, that may
stand in the way of the reinstatement of the applicant.
That is that
he lied when he suggested that he was incapable to perform duties, in
truth, so the suggestion went, he was attending
lectures at CUT. In a
reinstatement, in the context of the LRA, the LAC in
Maepe
v CCMA and another
[25]
found that the fact that Maepe lied at arbitration is a factor which
would deny him reinstatement as a relief.
[45]
In the results, I make the following order:
Order
1.
The
decision of the respondent not to approve the reinstatement of the
applicant as required in section 17 (3) (b) of the PSA is
hereby
reviewed and set aside;
2.
The
matter is remitted to the respondent for the proper exercise of the
power contemplated in section 17 (3) (b) of the PSA.
3.
There is no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Advocate L A Roux.
Instructed
by:
Kruger Venter Inc, Welkom
For the
Respondent:
Advocate T L Manye
Instructed
by:
State Attorney – Bloemfontein
[1]
Case CA4/2013 delivered on 13 May 2014 (LAC).
[2]
[2010] 31 ILJ 1377 (LC).
[3]
The LAC per Davis JA left the question open: [32] if correct, the
approach adopted in De Villiers, supra would apply equally
to the
present disputes. But it may not be necessary to determine this
specific question in order to resolve these disputes.
[4]
[2018] 1 BLLR 16 (LAC).
[5]
66 of 1995, as amended.
[6]
3 of 2000.
[7]
Weder
at [33] …Irrespective of the classification of the decisions
of the appellant as administrative action, appellant’s
actions
are open to review in terms of s 158…on the ground of
legality, a principle that has been developed significantly
by the
courts over the past decade.
[8]
Act 103 of 1994.
[9]
Clearly, this is the submission of Advocate Moshodi. Differently
put, it is his opinion and certainly not that of the repository
of
power.
[10]
Indeed, approval was granted on 19 October 2015. I must point out
that what the MEC was approving was the confirmation that the
applicant’s dismissal is consistent with the provisions of
section 17 (3) (a) (i). As it shall be demonstrated later in
this
judgment that is not the purpose and the power contemplated in
section 17 (5) (b).
[11]
The empowering provisions requires the respondent to approve the
reinstatement and not to confirm a discharge. Perhaps confirming
a
dismissal is tantamount to refusing to approve the reinstatement.
[12]
66 of 1995, as amended.
[13]
However, it seems that according to the LAC in
Ramonetha
,
if an official report for duty and receives remunerated thereafter,
such is enough to gain reinstatement contemplated in this
section. I
hold a different view though. But if my interpretation of the LAC
judgment is correct, then I am bound by it.
[14]
Case number 127/2002 delivered on 31 March 2003 (SCA)
[15]
1979 (2) SA 298 (C)
[16]
Grootboom v NPA and another CCT 08/13
[2013] ZACC 37
delivered on 21
October 2013
[17]
Act 76 of 1988
[18]
Section 18 deals with misconduct.
[19]
Item 3 of Schedule 2
[20]
2013 (1) SA 248 (CC).
[21]
2010 (3) SA 293
(CC).
[22]
2014 (8) BCLR 930 (CC)
[23]
Therefore, in my view, I am uncertain whether this statement by the
LAC in
Weder
would forever remain like that: It said: [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…In
particular
,
given an employee’s right to fair labour practices, the
decision must be tested for rationality as outlined.
[24]
51 of 2003.
[25]
[2008] ZALAC 2
;
[2008] 8 BLLR 723
(LAC)