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[2018] ZALCPE 3
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Member of the Executive Council for the Department of Education Eastern Cape v Bantwini and Others (PR37/16) [2018] ZALCPE 3; (2018) 39 ILJ 1327 (LC) (1 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PR 37/16
In
the matter between
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF EDUCATION
EASTERN
CAPE
Applicant
and
N
BANTWINI
First Respondent
EDUCATION
LABOUR RELATIONS COUNCIL
Second Respondent
AMOS
BESTER
Third Respondent
Heard:
9 March 2017
Delivered:
1 February 2018
Summary:
The arbitrator’s decision based on her interpretation of
section 14
(1) (a) of the
Employment of Educators Act 76 of 1998
which excludes days on which an educator was not required to be at
work is correct and reasonable. It is therefore not susceptible
to
review.
JUDGMENT
LALLIE
J
[1]
The applicant seeks an order reviewing and setting aside an
arbitration award of the first respondent who will be referred to
as
the arbitrator in this judgment. This application was filed late and
the applicant sought condonation. Initially, the third
respondent
opposed both the review and condonation applications. However, when
this matter was argued, the third respondent did
not pursue his
opposition of the condonation application. I have considered the
submissions made on behalf of the applicant on
condonation and I am
satisfied that good cause was shown. Condonation should, in the
circumstances be granted.
[2]
The factual background to this matter is that the third respondent
was employed by the Department of Education of the Eastern
Cape
Province (the Department) as an educator. He was absent from work
from 20 July to 4 August 2015 and the Department terminated
his
services by invoking provisions of section 14(1)(a) of the Employment
of Educators Act 76 of 1998 (the EEA). Aggrieved by losing
his
employment, the third respondent referred an unfair dismissal dispute
for unknown reasons, in terms of section 191 of the Labour
Relations
Act 66 of 1995 (the LRA) to the second respondent which will be
referred to as the ELRC in this judgment. The applicant
raised a
point
in limine
that the ELRC lacked jurisdiction over the
dispute on the grounds that the third respondent was not dismissed
but his contract
of employment had been terminated by operation of
section 14(1) (a) of the EEA. The point
in limine
was opposed
by the third respondent. The arbitrator issued a jurisdictional
ruling in which she recorded that the third respondent’s
service contract was terminated in terms of provisions of section 14
of the EEA as 14 consecutive working days had not lapsed when
the
third respondent reported for duty on 4 August 2015. She found that
the Department based the decision that the third respondent
had been
absent for 14 consecutive days by erroneously including weekends. It,
therefore, erred in invoking provisions of section
14(1) (a) of the
EEA. She concluded that the ELRC had jurisdiction over the dispute
because the third respondent was not required
to work weekends. He
was therefore absent from work for 12 consecutive working days when
the weekends were excluded.
[3]
The applicant seeks to have the arbitrator’s ruling reviewed
and set aside on the grounds that she committed misconduct
by
exceeding her powers in issuing the ruling. The nub of the
applicant’s case is that the arbitrator erred in excluding
weekends when calculating the number of days of the third
respondent’s absence which led to the termination of his
contract
of employment. The applicant relied on section 4 of the
Interpretation Act of 1957 (the Interpretation Act) which provides as
follows:
‘
4
Reckoning of number of days.
-When
any particular number of days is prescribed for the doing of any act,
or for any other purpose, the same shall be reckoned
exclusively of
the first and inclusively of the last day, unless the last day
happens to fall on a Sunday or on any public holiday,
in which case
the term shall be reckoned exclusively of the first day and
exclusively also of every Sunday or public holiday’.
[4]
The applicant further relied on
Nedcor
Bank Limited and the Master of the high Court (Pretoria), JF Klopper
NO, MW Lynn NO, G C Gainsgord NO, S E Lehapa NO, J M
Damons NO, P.E
Jackson and Various Creditors
[1]
where section 4 of the Interpretation Act was given the following
interpretation:
“
When reckoning days in a
statutory provision a court is enjoined to apply the provisions of
section 4 of the Interpretation Act
unless there is something in the
language or context of the particular provision repugnant to such
provision or unless a contrary
intention appears therein”.
[5]
The third respondent’s basis for opposing the application was
that the arbitrator did not commit any conduct which made
her ruling
susceptible to review. Her interpretation of section 14 of the EEA
was correct. It was argued that the applicant’s
interpretation
of section 14 of the EEA was wrong as it failed to take into account
provisions of the entire section.
[6]
The authority the applicant sought to rely on supports the
arbitrator’s decision that a proper interpretation of the 14
consecutive days of absence from work referred to in section 14(1)(a)
of the EEA excludes weekends. The days envisaged in the section
are
stated in clear and unambiguous language. They are days of absence
from work. The arbitrator correctly pointed out that the
employee can
only be absent from work on those days that the employee is required
to be at work. The words “is absent from
work” in
section14(1)(a) of the EEA express an intention contrary to the
reckoning of days as stipulated in section 4 of
the Interpretation
Act. As the arbitrator was determining, not just days, but days as
qualified in section 14(1)(a) of the EEA,
provisions of section 4 of
the Interpretation Act were not applicable. The arbitrator’s
decision based on her interpretation
of section 14(1)(a) of the EEA
is both correct and reasonable. There is, therefore, no basis to
interfere with it. The application
can therefore not succeed.
[7]
The third respondent sought a costs order against the applicant. I am
convinced that the order should be granted as the third
respondent
cannot be out of pocket for reasonably defending his rights in terms
of a ruling in his favour.
[8]
In the premises, the following order is made:
Order:
1
The late filing of the application for review is condoned.
2
The application for review is dismissed.
3
The applicant pay the third respondent’s costs.
Z
Lallie
Judge
of the Labour Court of South Africa
APPEARANCES
:
FOR
THE APPLICANT:
Advocate Dala
Instructed
by
The State Attorney
FOR
THE THIRD RESPONDENT:
Advocate Grobler
Instructed
by
Randell &Associates
[1]
Case No. 440/2000 (SCA) delivered date of the –
27 September 2001