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[2018] ZALCPE 17
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Jordaan v Education Labour Relations Council and Others (PR159/17) [2018] ZALCPE 17 (22 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Case
No: PR159/17
In
the matter between:
SINDISWA
SYLVIA
JORDAAN
Applicant
and
EDUCATION
LABOUR RELATIONS COUNCIL
First
Respondent
JONATHAN
GRUSS
Second
Respondent
DEPARTMENT
OF EDUCATION, EASTERN CAPE
Third
Respondent
Heard:
20 March 2018
Delivered:
20 March 2018
Edited:
22 June 2018
EX TEMPORE - JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside a ruling made by the
Second Respondent under case number PSES145-17/18EC.
[2]
In his ruling, the Second Respondent, to whom I shall refer as the
Arbitrator, correctly recorded that the issue that he was
required to
decide whether the Applicant should be granted condonation for the
late referral of an unfair dismissal dispute to
the bargaining
council.
[3]
The background to the issue is recorded in the ruling under review
and I do not intend to repeat all of the relevant facts,
save to say
that the employment of the Applicant was terminated in accordance
with the provisions of
Section 14
(2) of the
Employment of Educators
Act, 76 of 1998
. That section provides that if an educator who is
deemed to be dismissed in terms of subsection (1) at any time reports
for duty,
the employer may on good cause shown approve the
reinstatement of that educator into the former post or any other
post, on such
conditions that the employer may determine.
[4]
In the present instance, on 14 March 2017, the Superintendent-General
for Education: Eastern Cape advised the Applicant that
her dismissal
had been confirmed in terms of
Section 14
(1) on the basis that he
was not convinced that the Applicant had shown cause for her
unauthorised absence.
[5]
The subsequent referral of an unfair dismissal claim was late. The
Applicant had until the 27th of April 2017 to refer her dispute.
The
dispute was referred only on the 25
th
of May. The referral
was therefore 28 days late; a degree of lateness that the Arbitrator
considered serious.
[6]
The Arbitrator noted that the Applicant had not explained the delay
between her receipt of the letter on 28 March 2017 refusing
the
request for reinstatement, and the referral of her dispute on the
25
th
of May 2017. Be that as it may, the primary basis on
which the Arbitrator decided to refuse condonation is in relation to
the Applicant’s
prospects of success, or more accurately the
lack of them.
[7]
What the Arbitrator held was that a termination of employment in the
circumstances envisaged by
Section 14
(2) could never amount to a
dismissal for the purposes of the Labour Relations Act and therefore
that a claim for unfair dismissal
was simply not competent.
[8]
The Arbitrator referred to the matter of
De Villiers v Head of
Department: Education Western Cape
(2010) 31
ILJ
1377 (LC)
and also (2009)30
ILJ
1722 (C). In that instance, the court
confirmed that where a discharge is deemed by statute to have
occurred (such as provided for
in Section 14 (1) of the Employment of
Educator’s Act), this did not constitute a “dismissal”
as defined in Section
186 (1) of the LRA.
[9]
In other words, where the employment of an educator is terminated, as
I have indicated, in the circumstances contemplated by
Section 14,
this is a termination of employment by operation of law and not a
dismissal for the purposes of the LRA. The employee
therefore has no
claim for unfair dismissal. The employee’s proper right of
recourse is a review in terms of Section 158
(1) (h) of the Labour
Relations Act.
[10]
On the basis that, ultimately, the bargaining council had no
jurisdiction to entertain any unfair dismissal claim, the Arbitrator
concluded that the Applicant had no prospects of success and
accordingly refused to condone the late referral of the dispute.
[11]
To the extent that the Applicant in this present instance submits
that the Arbitrator committed a gross irregularity in failing
to
consider that the Third Respondent did not conduct a disciplinary
hearing before dismissing the Applicant, that he failed to
apply his
mind to the facts before him, that his ruling bore no rational
connection to the facts on which the ruling is based,
there is no
merit in any of these submissions. All of them overlook the principle
that the termination of employment in the present
case was not a
termination at the initiative of the employer rather than a
termination by operation of law.
[12]
In those circumstances I cannot fault the Arbitrator’s
conclusion that the application for condonation should be refused
on
the basis primarily of the lack of any prospects of success. The
application to review and set aside the Arbitrator’s
refusal to
grant condonation thus stands to be dismissed.
[13]
The order I make is thus the following:
Order
1. The application is dismissed.
2. There is no order as to costs.
_____________________________
VAN
NIEKERK J
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant: Mr Madokwe
Instructed
by: (not available)
For
the respondent: (not available)
Instructed
by: (not