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[2018] ZALCPE 24
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Gcani v Minister of Justice and Correctional Services and Others (PR170/16) [2018] ZALCPE 24; (2019) 40 ILJ 358 (LC) (14 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
case
no: PR 170 / 16
In
the matter between:
MISUMZI SIDWELL
GCANI
Applicant
and
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
First
Respondent
NATIONAL COMMISSIONER: DEPARTMENT
OF CORRECTIONAL
SERVICES
Second
Respondent
EASTERN CAPE DEPUTY REGIONAL
COMMISSIONER: DEPARTMENT OF
CORRECTIONAL
SERVICES
Third
Respondent
EASTERN CAPE REGIONAL COMMISSIONER:
DEPARTMENT OF CORRECTIONAL
SERVICES
Fourth
Respondent
AREA COMMISSIONER: DEPARTMENT OF
CORRECTIONAL
SERVICES
Fifth
Respondent
Heard
:
12 September 2018
Delivered
:
14 September 2018
Summary:
Review of decision by employer regarding reinstatement following
termination of employment by operation of law for desertion
–
Section 158(1)(h) of LRA considered –
principles applicable to such reviews considered
Delay in review application –
principles considered – Court has discretion to overlook delay
– delay excessive
and not properly explained –
condonation refused
Appeal for reinstatement –
consideration of appeal for reinstatement to employer – appeal
itself substantially out of
time with no explanation – as such
appeal incompetent
Review application – review
of appeal for reinstatement – applicant bound by findings of
fact of arbitrator in earlier
proceedings in absence of challenge of
the award – such findings in effect negate any prospects of
success on appeal –
no substance exists to review appeal
outcome
Review application – no
prospects of success – review application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
In
this matter, the applicant has brought an application in terms of
section 158(1)(h) of the Labour Relations Act
[1]
(‘the LRA’) to review and set aside an appeal outcome
handed down by the fifth respondent, in terms of which the
applicant’s
appeal representations for reinstatement following
a deemed termination of employment for desertion, was refused. The
applicant
seeks consequential relief to the effect that he be
reinstated with retrospective effect to date of his deemed discharge.
[2]
The appeal outcome sought to be challenged
by the applicant was actually handed down on 9 July 2014. The
applicant’s review
application was only brought on 7 September
2016, which is approximately 26 (twenty six) months after the outcome
was handed down.
This is clearly an extremely lengthy delay, which
could in itself have a negative impact on the competency of the
applicant’s
review application, which will be addressed later
in this judgment. At least the applicant did seek condonation for
this delay,
when filing his review application.
[3]
Where it comes to the factual matrix to be
considered in deciding this application, most of it is fortunately
either undisputed,
or common cause. I will now commence deciding this
matter by first setting out this applicable factual matrix.
The
relevant background
[4]
The first to fifth respondents are all the
relevant functionaries of the Department of Correctional Services,
and will be jointly
referred to in this judgment as ‘the
Department’. The applicant was employed by the Department as a
correctional services
officer, having commenced employment in March
2007, and was stationed at the St Albans Correctional Facility.
[5]
The Department falls under the scope and
jurisdiction of the General Public Services Sector Bargaining Council
(GPSSBC), a duly
constituted bargaining council in the public
services sector. In the GPSSBC there is a specific chamber dedicated
to the Department,
and provision is made in such chamber for the
disciplinary code and procedure applicable to employees of the
Department. This disciplinary
code and procedure as applicable to
this case is found in Resolution 1 of 2006 (the Resolution). The
Resolution is also a collective
agreement concluded between the
parties to this chamber of the GPSSBC.
[6]
The Resolution contains specific provisions
dealing with what is called ‘desertion / abscondment’.
In terms of
clause 9.1 of the Resolution, there exists a deemed
termination of employment of employees of the Department that absent
themselves
from work.
[7]
Clause
9.1 of the Resolution reads:
[2]
‘
An
employee who absents him/herself for 30 consecutive (calendar) days
without permission or without notifying the employer shall
be
summarily dismissed. However, before dismissing the employee, the
employer must endeavour to establish the whereabouts of the
employee.
Upon the employee’s reappearance after desertion, he/she may
not be reinstated. The employee must make written
representations to
the delegated authority within 5 days from his/her reappearance
should he/she wishes reinstatement/re-employment
to be considere
d’.
[8]
It is undisputed that the applicant was
absent from work as from 15 February 2013 going forward. According to
the Department, this
absence was without authorization or any
notification to, or contact with, the Department.
[9]
In a letter dated 3 June 2013, the
Department advised the applicant that because he had been absent for
longer than 30 consecutive
days as from 15 February 2013, without
prior permission or leave, he had been summarily dismissed with
effect from 3 June 2013,
in terms of clause 9.1 of the Resolution.
[10]
This letter dated 3 June 2013 further
recorded that the applicant had failed to submit any medical
certificates or leave application
forms, and various telephone calls
had been attempted to contact him, all of which were unsuccessful.
The applicant was further
informed that he could submit written
representations against this decision in terms of clause 9.1 of the
Resolution. Added to
this, it was common cause that the applicant’s
salary was already stopped in May 2013.
[11]
According to the applicant, he never
received this letter. But notwithstanding, and at the very least on
the undisputed facts, the
applicant was visited by an HR official
from the Department at his home on 30 June 2013, and he was presented
with a copy of this
letter at that time. The applicant then simply
presented himself at work on 1 July 2013 without seeking to make any
representations
as contemplated by clause 9.1. As such, and in terms
of these provisions, he could not be reinstated, and had to first
submit representations
to substantiate why he should be reinstated.
[12]
The applicant did not submit the
representations as required by clause 9.1, in the prescribed period
of 5 (five) days. Instead,
he filed what he called an ‘appeal
letter’, but this was only on 3 July 2014. Accepting for the
purposes of argument
that this appeal letter constituted the required
representations, it was filed just on a year after the applicant
presented himself
for work and was required to file the
representations in the first place. The applicant sought no
condonation for such a material
delay, even assuming it was competent
to do so. The applicant made no attempt to tender services in the
interim.
[13]
In terms of the representations as
contained in his appeal letter, the applicant explained that he was
absent from work because
of depression, and had been booked off work
for the period from 15 February to 11 August 2013 by his doctor, Dr E
A G Mayet, as
a result. The applicant also contended that the
Department was aware that he was booked off work due to illness, as
he had been
telefaxing his medical certificates ‘
since
01/01/13 to fax no 041 775 1171’
,
quoting directly from the explanation. He also raised an issue that
he had never been visited or called by the Department during
his
absence. For these reasons, it was the applicant’s view and
submissions that he had never absconded / deserted, and thus
he
should be reinstated.
[14]
The outcome of the applicant’s appeal
was delivered to him on 9 July 2014 by the Department. The appeal was
declined because,
according to the Department, it was excessively
outside the time period of 5 (five) days allowed to do so. Further,
and according
to the Department, even if it did know of the
applicant’s whereabouts, that still did not stand in the way of
the termination
of employment in terms of clause 9.1 of the
Resolution.
[15]
The applicant then referred an unfair
dismissal dispute to the GPSSBC under case number GPBC 1802/2014.
This dispute ultimately
came before arbitrator Kevin Kayster for
arbitration on 4 June and 16 July 2015. In these proceedings, the
Department raised an
objection
in limine
to the effect that the applicant was not dismissed, but his
employment terminated by way of operation of law in terms of the
Resolution.
Based upon this objection raised, the arbitrator then
recorded that what he needed to decide was the following:
‘
I
am called upon to determine whether or not the Applicant’s
service terminated by operation of law, or whether he was dismissed
in terms of
section 186(1)
of the
Labour Relations Act 66 of 1995
as
amended (LRA). If found that he was indeed dismissed, I am also
called upon to determine whether or not the dismissal
was
substantively and procedurally fair.
’
[16]
In so
recording, the arbitrator got it right. He accepted that he had
jurisdiction to entertain the matter. He then directed that
oral
evidence needed to be heard in order to decide whether the applicant
was dismissed, and thus whether the deeming provisions
for
termination of employment by operation of law applied or not. The
arbitrator decided this matter by way of reference to section
17(3)
of the Public Service Act
[3]
(PSA), which is comparable to clause 9.1 of the Resolution. The
arbitrator, in his award, specifically recognized this comparison
as
well.
[17]
The arbitrator then heard evidence by both
parties. It is important to consider that the applicant’s case
before arbitrator
Keyster as to why he was dismissed, and the deeming
provisions as contemplated by the Resolution did not apply, is
virtually identical
to the case as contained in the applicant’s
appeal for reinstatement referred to above.
[18]
The arbitrator handed down an arbitration
award on 17 August 2015. Some of the pertinent findings of the
arbitrator must be highlighted.
He accepted it was common cause that
the applicant did not report for duty for the period from 15 February
to 3 June 2013 when
the termination letter was issued. He also
considered the applicant’s evidence that throughout his
absence, he telefaxed
medical certificates to the Department and
telephoned the duty clerks about his absence. The arbitrator then
rejected this evidence,
finding that there was no proof that the
applicant had sent the medical certificates to the Department in this
period and that
the applicant could not even recall who the alleged
duty clerks were that he spoke to. The arbitrator also considered
that the
applicant’s own witness, one Ms Jela, who served as a
duty clerk, could not recall ever speaking to the applicant in this
period or seeing a medical certificate emanating from the applicant.
The arbitrator accepted the testimony of Mr Jinikwe, who testified
for the Department, and whose duty it was to receive and process
medical certificates, to the effect that no medical certificates
were
ever received from the applicant in this period.
[19]
The arbitrator further held that the
applicant was unable to substantiate the medical certificates,
especially considering that
these certificates were only transmitted
to the Department long after the dismissal letter was provided to
him. The arbitrator
further held that the Department was indeed
unaware of the applicant’s whereabouts, despite it in fact
attempting to ascertain
the same.
[20]
The arbitrator then concluded that the
deeming provision in clause 9.1 of the Resolution as read with
section 17(3) of the PSA had
indeed come into operation, based on all
these factual conclusions he had made, and that the applicant was
therefore not dismissed
as contemplated by section 186(1) of the LRA.
For this reason, the arbitrator concluded that the GPSSBC did not
have jurisdiction
to entertain the matter.
[21]
Significantly, this arbitration award was
never challenged by the applicant, and as such, the factual findings
made therein must
stand. In the award, arbitrator Kayster also
recorded that the applicant was still free to challenge the decision
by the Department
to refuse his appeal for reinstatement on review to
this Court.
[22]
The review application now before me then
followed more than a year later only on 7 September 2016. As said,
this review application
only related to the ‘appeal’
decision by the Department refusing to reinstate the applicant, and
not the arbitration
award of arbitrator Kayster.
Review
principles
[23]
The
first issue to consider, when deciding the applicant’s review
application, is whether such review application is indeed
competent.
In deciding this, it is appropriate to first start at section 195(1)
of the Constitution of the Republic of South Africa
[4]
(the Constitution), which
inter
alia
provides as follows:
‘
Public
administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following
principles:
(a)
A high standard of
professional ethics must be promoted and maintained. …
(d)
Services must be provided
impartially, fairly, equitably and without bias. …
(g)
Public administration
must be accountable. …’
In
terms of section 195(2), the above principles apply to all organs of
state and in the administration of every sphere of government.
This
would include the Department, and its dealings with its employees.
[24]
The
Constitutional Court in
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
[5]
considered the application of section 195 of the Constitution where
it came to the employment relationship between the State as
an
employer and its employees, and in particular where it came to the
conduct of public service functionaries towards such employees.
The
Court held as follows:
[6]
‘
Section
195 provides for a number of important values to guide decision
makers in the context of public sector employment. When,
as in this
case, a responsible functionary is enlightened of a potential
irregularity, s 195 lays a compelling basis for the founding
of a
duty on the functionary to investigate and, if need be, to correct
any unlawfulness through the appropriate avenues. This
duty is
founded, inter alia, in the emphasis on accountability and
transparency in s 195(1)(f) and (g) and the requirement of a
high
standard of professional ethics in s 195(1)(a). Read in the light of
the founding value of the rule of law in s 1 (c) of the
Constitution,
these provisions found not only standing in a public functionary who
seeks to review through a court process a decision
of its own
department, but indeed they found an obligation to act to correct the
unlawfulness, within the boundaries of the law
and the interests of
justice.
’
[25]
In terms of section 158(1)(h) of the LRA,
the Labour Court may:
‘…
review
any decision taken or any act performed by the State in its capacity
as employer, on such grounds as are permissible in law.
'
This
provision, as read with section 195 of the Constitution, would then
appear to constitute a proper avenue open to an employee
in the
public service to challenge decisions made by responsible
functionaries, that may have a detrimental effect on such an
employee.
[26]
However it has been
pertinently held that section 158(1)(h) of the LRA cannot be used to
in effect bypass the specifically crafted
dispute resolution
machinery established in terms of the LRA, where it comes to
employment law disputes, even for those employees
in the public
sector. In
Chirwa
v Transnet Ltd and Others
[7]
the Court
said:
‘
It
is my view that the existence of a purpose-built employment framework
in the form of the LRA and associated legislation infers
that labour
processes and forums should take precedence over non-purpose-built
processes and forums in situations involving employment
related
matters. At the least, litigation in terms of the LRA should be seen
as the more appropriate route to pursue. Where an
alternative cause
of action can be sustained in matters arising out of an employment
relationship, in which the employee alleges
unfair dismissal or an
unfair labour practice by the employer, it is in the first instance
through the mechanisms established by
the LRA that the employee
should pursue her or his claims.
’
The
Court in
Chirwa
specifically held that the LRA does not differentiate between the
state and its organs, as the employer, and any other employer.
[8]
[27]
Following the judgment
in
Chirwa
,
as confirmed in
Gcaba
v Minister for Safety and Security and Others
[9]
,
the Labour Appeal Court specifically dealt with the applicability of
section 158(1)(h) as a basis for employees in the public
service
seeking to challenge dismissals and other forms of unfair labour
practices, directly by way of review to the Labour Court,
in the
judgment of
Public
Servants Association of SA on behalf of de Bruyn v Minister of Safety
and Security and Another
[10]
.
The Court held:
‘
The
supposition that public servants had an extra string to their bow in
the form of judicial review of administrative action, ie
acts and
omissions by the state vis-à-vis public servants, evaporated
when the Constitutional Court in Chirwa v Transnet
Ltd & others,
held that the dismissal of a public servant was not 'an
administrative act' as defined in PAJA and therefore
not capable of
judicial review in terms of that Act. Any uncertainty regarding the
interpretation of the Chirwa judgment was removed
in the subsequent
decision in Gcaba v Minister for Safety & Security & others.
The result is that a public servant is confined
to the other remedies
available to him or her.
One
of the effects of Chirwa is that a dismissal is not to be regarded as
an 'administrative act' by the state but merely as the
act of the
state in its capacity as an employer. This decision brought us to the
situation where the pre-Chirwa substratum of s
158(1)(h) fell away …
’
[28]
Therefore, and as a
general proposition, where a public service employee has been
dismissed, or complains about other conduct of
his or her employer
that would be an unfair labour practice, a review application in
terms of section 158(1)(h) by such employee
challenging such conduct
by the employer, is simply not competent. These disputes must be
pursued and then decided in terms of
the arbitration or adjudication
dispute resolution mechanisms under Chapter VIII of the LRA. As
emphasized in
Hendricks
v Overstrand Municipality and Another
[11]
:
‘
The
underlying guiding rationale of the ratio decidendi in
Gcaba
and
Chirwa
is that once a set of carefully crafted rules and structures has been
created for the effective and speedy resolution of disputes
and
protection of rights in a particular area of law, it is preferable to
use that particular system. In other words, and in practical
terms,
remedies for unfair dismissal and unfair labour practices contained
in the LRA should be used by aggrieved employees rather
than seeking
review under PAJA. … ‘
[29]
Therefore,
on face value it would seem that the applicant’s current
application to review and set aside the decision by the
Department to
decline his appeal for reinstatement would not be competent. However,
this is not the case in this instance, as what
I am now dealing with
can be simply described as an exception to this general principle.
Where it comes to the application of the
deemed dismissal provisions
relating to absconment / desertion in various statutory instruments
in the public service,
[12]
there exists a specific exception to the general competence principle
summarized above. The reason for this is that the decision
to
reinstate an employee in terms of these provisions is legislated
public power that arises directly out of a statute, therefore
this
kind of decision cannot resort under the dispute resolution
mechanisms established by the LRA for the purposes of challenge.
This
was specifically recognized in
Ramonetha
v Department of Roads and Transport, Limpopo and Another
[13]
where the Court said:
‘
The
current matter is concerned with the exercise of a power in terms of
s 17(3)
(b)
,
which neither has its source in the contract of employment, nor falls
within the ambit of either 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 a
decision taken by the state as employer, involves the exercise of a
legislated public power by a public functionary.
’
[30]
Once
it is considered competent to be used, the utilization of section
158(1)(h) of the LRA indeed contemplates a review application.
This
being the case, it must then be established on what review grounds
such a review application must be brought. In
Hendricks
[14]
,
the Court held:
‘
In
sum therefore, the Labour Court has the power under s 158(1)(h) to
review the decision taken by a presiding officer of a disciplinary
hearing on (i) the grounds listed in PAJA, provided the decision
constitutes administrative action; (ii) in terms of the common
law in
relation to domestic or contractual disciplinary proceedings; or
(iii) in accordance with the requirements of the constitutional
principle of legality, such being grounds 'permissible in law'
.
[31]
More
recently, the Court in
Merafong
City Local Municipality v SA Municipal Workers Union and Another
[15]
similarly pronounced as follows:
‘
The
Labour Court is not precluded by the LRA from reviewing the decisions
and acts contemplated in s 158(1)(h)
.
It has the power (and jurisdiction) to review them on any grounds
'permissible in law'. Permissible grounds in law would
include
the constitutional grounds of legality and rationality and, if they
constitute 'administrative action', on the grounds
that are
stipulated in PAJA …
’
[32]
In
his founding affidavit, the applicant does not rely upon Promotion of
Administrative Justice Act
[16]
(PAJA). The applicant squarely places his reliance on the principle
of legality. Dealing with ‘legality’ the
Court in
Hendricks
[17]
found:
‘…
.
Legality includes a requirement of rationality. It is a requirement
of the rule of law that the exercise of public power by the
executive
and other functionaries should not be arbitrary. Decisions must be
rationally related to the purpose for which the power
was given,
otherwise they are in effect arbitrary and inconsistent with the rule
of law.
’
[33]
The
Court in
Khumalo
[18]
also specifically dealt with the meaning of ‘legality’,
in the context of a review application under section 158(1)(h),
and
held:
‘…
The
principle of legality is applicable to all exercises of public power
and not only to 'administrative action' as defined in PAJA.
It
requires that all exercises of public power are, at a minimum, lawful
and rational. …
’
[34]
In
MEC
for the Department of Health, Western Cape v Weder;
MEC for the
Department of Health, Western Cape v Democratic Nursing Association
of SA on behalf of Mangena
[19]
the Court held that the principle of legality has developed over the
past decade, to the extent that a parallel system of review
for
action which falls outside of the strict definition of administrative
action, has developed. Having so held, the Court then
proceeded to
set out this development as follows:
[20]
‘…
Public
functionaries are required to act within the powers granted to them
by law. See
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council & others
[1998] ZACC 17
;
1999
(1) SA 374
(CC)
at para 58, furthermore, see the seminal judgment in
Pharmaceutical
Manufacturers Association of SA & another
:
In
re Ex parte President of the Republic of SA & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC)
at para 85, where the court laid down the core element of legality as
follows:
'It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this
requirement.
'
The
Court in
Weder
[21]
then proceeded to consider this component of rationality as part of
the legality enquiry, and held:
‘
In
later judgments the court has developed this concept of rationality
requiring the executive or public functionaries to exercise
their
power for the specific purposes for which they were granted so that
they cannot act arbitrarily, for no other purpose or
an ulterior
motive. See
Gauteng
Gambling Board & another v MEC for Economic Development,
Gauteng
2013
(5) SA 24
(SCA)
at para 47. Furthermore, in
Democratic
Alliance v President of the Republic of SA & others
2013
(1) SA 248 (CC)
at para 39 Yacoob ADCJ held:
'If
in the circumstances of a case, there is a failure to take into
account relevant material that failure would constitute part
of the
means
to achieve the purpose for which the power was conferred. And if the
failure had an impact on the rationality of the entire process,
then
the final decision may be rendered irrational and invalid by the
irrationality of the
process
as a whole
.'
’
[35]
Of
further guidance when considering legality review grounds, is the
following
dictum
in
Ntshangase
v MEC for Finance: KwaZulu-Natal and Another
[22]
,
where it was held:
‘…
All
actions and/or decisions taken pursuant to the employment
relationship between the second respondent and its employees must
be
fair and must account for all the relevant facts put before the
presiding officer. Where such an act or decision fails to take
account of all the relevant facts and is manifestly unfair to the
employer, he/she is entitled to take such decision on review.
Moreover, the second respondent has a duty to ensure an accountable
public administration in accordance with ss 195 and 197 of
the
Constitution. …
’
[36]
In sum, the applicant’s review
application in this case is indeed competent under section 158(1)(h),
and should be considered
by this Court. As this application is
founded on the principle of legality, it must be evaluated based on
the principles as summarized
above. However, before I proceed, I must
first deal with the material delay that has been occasioned in this
matter, as well as
the implications of such delay to the applicant’s
review application.
The
issue of the delay
[37]
Overall considered, the manner in which the
applicant has dealt with this matter throughout leaves much to be
desired. The delays
occasioned solely as a result of his own
inactions, amount to more than two years. The approach adopted by the
applicant concerning
this delay is in essence that it should be
brushed aside because his legality challenge trumps all else. But
such an approach is
unfortunately a mistaken one. Whilst it may be
true that there is no specified time limit within which a review
application in
terms of section 158(1)(h) must be brought, this does
not mean that an applicant has an open licence, so to speak, to bring
such
an application when he or she wants and any delay occasioned is
of no consequence.
[38]
There
is a reason why no specific time limit to bring a review application
under section 158(1)(h) has been prescribed, which reason
was
explained by the Court in
Khumalo
[23]
as being the necessity to open the actions and conduct of public
functionaries to ongoing scrutiny and transparency. The Court
further
explained the rationale for this approach as follows:
[24]
‘…
the
rule of law is a founding value of the Constitution, and that state
functionaries are enjoined to uphold and protect it, inter
alia by
seeking the redress of their departments' unlawful decisions. Because
of these fundamental commitments, a court should
be slow to allow
procedural obstacles to prevent it from looking into a challenge to
the lawfulness of an exercise of public power.
But that does not mean
that the Constitution has dispensed with the basic procedural
requirement that review proceedings are to
be brought without undue
delay or with a court's discretion to overlook a delay.
’
[39]
Therefore,
even though there is no prescribed time limit for bringing such an
application, there must still not be an undue delay
in bringing the
application. An undue delay, especially one that is not
properly explained, can in itself be seen to infringe
on the
constitutional principle of legality. In this respect, the Court in
Khumalo
[25]
held:
‘
Section
237 of the Constitution provides: 'All constitutional obligations
must be performed diligently and without delay.' Section
237
acknowledges the significance of timeous compliance with
constitutional prescripts. It elevates expeditious and diligent
compliance
with constitutional duties to an obligation in itself. The
principle is thus a requirement of legality
.’
[40]
In
similar vein, and in
Gqwetha
v Transkei Development Corporation Ltd and Others
[26]
the Court said the following:
‘
It
is important for the efficient functioning of public bodies …
that a challenge to the validity of their decisions by proceedings
for judicial review should be initiated without undue delay. The
rationale for that longstanding rule … is twofold: First,
the
failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, and in my view, more
importantly,
there is a public interest element in the finality of
administrative decisions and the exercise of administrative
functions. …
’
[41]
When
determining what may be an ‘undue delay’, it is not
appropriate to impose a fixed period and then measure all delay
against such a period. It is always about the particular
circumstances that arose as cause for the delay, and then to assess
the
explanation provided so as to decide whether the delay is
unreasonable. As held in
G4S
Secure Solutions (SA) (Pty) Ltd v Gunqubele NO and Others
[27]
,
where the Court specifically dealt with a review application under
section 158(1)(h):
‘
It
is not permissible for a court to fix a certain time which it regards
as a reasonable time; nor is it permissible to insist that
an
application for condonation should be made after a specific time. An
application for condonation must be made when the delay
is
unreasonable and must be made at the earliest opportunity. The
correct approach is that outlined by Brand JA in
Associated
Institutions Pension Fund & others v Van Zyl & others
,
followed by this court
in
Colett v Commission
for
Conciliation, Mediation & Arbitration & others
,
namely:
‘
[46]
… It is a longstanding rule that courts have the power, as
part of their inherent jurisdiction to regulate their own
proceedings, to refuse a review application if the aggrieved party
had been guilty of unreasonable delay in initiating the proceedings.
…
‘
The
Court in
G4S
(supra) also quoted with approval the following extract of the
judgment in
Colett
v Commission for Conciliation, Mediation and Arbitration and
Others
[28]
:
‘
The
reasonableness or unreasonableness of a delay is entirely dependent
on the facts and circumstances of any particular case (see
eg
Setsokosane
at 86G). The investigation into the reasonableness of the delay has
nothing to do with the Court’s discretion. It is an
investigation into the facts of the matter in order to determine
whether, in all the circumstances of that case, the delay was
reasonable. Though this question does imply a value judgment it is
not to be equated with the judicial discretion involved in the
next
question, if it arises, namely, whether a delay which has been found
to be unreasonable, should be condoned (see
Setsokosane
at 86E-F)’
The
Court in
G4S
also
recognized that the LRA places a premium on the expeditious
resolution of labour disputes, and thus the application to review
had
to be brought within a reasonable time, despite there being no
prescribed time limit.
[29]
[42]
Therefore,
firstly, the extent of the delay must be considered. The decision the
applicant seeks to challenge was handed down on
9 July 2014. The
review was filed on 7 September 2016. This delay of some 26 (twenty
six) months is on face value grossly excessive,
and unreasonable, and
would be the kind of delay that can competently result in the refusal
of the review application on the basis
of being an unreasonable
delay.
[30]
[43]
However,
what is reasonable or unreasonable must always be assessed having due
regard to the explanation provided. As said, the
applicant has set
out, in the founding affidavit, an explanation which can be
considered in this regard. The consideration of this
explanation must
be done in line with the following as articulated by the Court in
Khumalo
[31]
:
‘
In
Gqwetha
the
majority of the Supreme Court of Appeal held that an assessment of a
plea of undue delay involves examining: (1) whether the
delay is
unreasonable or undue (a factual enquiry upon which a value judgment
is made in the light of 'all the relevant circumstances');
and if so
(2) whether the court's discretion should be exercised to overlook
the delay and nevertheless entertain the application.
In
terms of the first leg of the enquiry, any explanation offered for
the delay is considered. ….
’
As
to the exercise of the discretion whether or not to overlook the
delay, the Court held:
[32]
‘…
On
this leg of the test, the majority in
Gqwetha
held that the delay cannot be evaluated in a vacuum but must be
assessed with reference to its potential to prejudice the affected
parties and having regard to the possible consequences of setting
aside the impugned decision. In the context of public sector
employment, the value of security for employees and in mitigating the
arguably inherent inequality of the workplace must be kept
in mind.
Under
the Constitution, however, the requirement to consider the
consequences of declaring the decision unlawful is mediated by
a
court's remedial powers to grant a 'just and equitable' order in
terms of s 172(1)
(b)
of the Constitution …
’
[44]
A
further important consideration in deciding to overlook the delay is
the possible consequences to the constitutional imperatives
in
section 195 of the Constitution if the irregular conduct is not set
aside. This involves a proper analysis of the decision that
is sought
to challenged, and the possible merits of that challenge. In
Khumalo
[33]
,
it was held as follows:
‘
An
additional consideration in overlooking an unreasonable delay lies in
the nature of the impugned decision. In my view, this requires
analysing the impugned decision within the legal challenge made
against it and considering the merits of that challenge.
’
[45]
These
kind of review applications also quintessentially concern nothing
else but, at the heart of it, an employment dispute. As
such, any
explanation must always be considered against the prime principle and
essential requirement of expeditious resolution
of such disputes.
[34]
[46]
Turning then to the explanation itself, as
provided in the founding affidavit, it is firstly clear that the
applicant deliberately
decided on the course of action he wanted to
pursue in order to challenge his termination of employment. He chose
not to challenge
the appeal outcome refusing reinstatement, but to
rather pursue an unfair dismissal dispute to the GPSSBC. There is of
course nothing
wrong with this decision, but taking this decision
must have consequences. One of these consequences has to be that this
deliberate
decision simply cannot be used as a basis for justifying a
delay occasioned as a result, when one chose not to pursue the other
course of action in the first place. In short, one has to live with
the consequences of what one decides to do.
[47]
The reality is that this conscious and
informed decision of the applicant accounted for the delay for the
period from July 2014
until the end of August 2015. This is a delay
that must be attributed directly to the applicant’s own conduct
and is in essence
thus indefensible. In my view, and clearly
appreciating this, the applicant attempts a slight of hand, but this
is unfortunately
based on a clear misconstruing of the arbitration
award of arbitrator Kayster. The applicant contends that the
arbitrator held
that the GPSSBC had no jurisdiction and the matter
had to be referred to the Labour Court. But a proper consideration of
the award
shows that this is not entirely correct and completely
negates the basis on which the arbitrator actually arrived at his
decision,
and what he decided.
[48]
The
undeniable fact is that the applicant contended in the proceedings
pursued to the GPSSBC that he was dismissed. He approached
the matter
on the basis that the requirements for the application of clause 9.1
of the Resolution (or for that matter section 17(3)(a)
of the PSA)
were not met. In such a case, the issue of the appeal
(representations) of the applicant for reinstatement in terms
of
these provisions, are irrelevant and of no consequence. Simply put,
if the requirements of clause 9.1 were not met, there would
be no
need to make representations in the first place. As held
Gangaram
v MEC for The Department of Health, KwaZulu-Natal and Another
[35]
:
‘…
My
conclusion on the set of facts presented is, therefore, that the
jurisdictional requirements for the appellant to be deemed dismissed
because of being absent for a period exceeding one calendar month
without the permission and/or knowledge of the HOD, office or
the
institution have not been satisfied, and
as
such there was no need for her to make representations in terms of s
17(3
)(b)
for her reinstatement. …
’
[49]
Therefore, if the applicant managed to
convince the arbitrator that these requirements were not met, then
the arbitrator would have
to conclude that the applicant was indeed
dismissed, and then proceed to consider whether such dismissal was
fair. Arbitrator Kayster
was very much alive to this, and made this
clear in his award. It is highly likely that if arbitrator Kayster
came to deal with
this matter on the basis that a dismissal existed,
he may have found that the dismissal had been unfair, and the
applicant could
thus be entitled to consequential relief, which may
have included reinstatement.
[50]
Arbitrator
Kayster held that the GPSSBC had no jurisdiction for the simple
reason that after considering all the evidence, he concluded
that the
requirements for the application of clause 9.1 of the Resolution (or
section 17(3)(a) of the PSA) were indeed met, and
as a result, the
applicant was not dismissed, but his employment terminated by way of
operation of law. Thus, and with the applicant
having failed to prove
dismissal as contemplated by section 186(1) of the LRA, the GPSSBC
had no jurisdiction for this reason.
[36]
[51]
The
applicant argued that the judgment in
Weder
was authority for the proposition that what the applicant did in
first pursuing a case to the GPSSBC could legitimately serve as
an
explanation for the delay occasioned as a result, and thus excuse it.
But in my view,
Weder
is distinguishable, not only on the facts, but on the basis on which
the bargaining council declined jurisdiction in the matter
now before
me. The judgment in
Weder
concerned two employees. Firstly, Weder himself had challenged the
actual refusal of the submissions for reinstatement he had made
in
terms of section 17(3)(b) of the PSA, to the bargaining council and
the council held that it had no jurisdiction to consider
this,
following which Weder virtually immediately pursued the matter to the
Labour Court.
[37]
In the case of the other employee, one Mangena, she did pursue an
unfair dismissal dispute to the bargaining council, which the
arbitrator declined to even entertain because it was held the
bargaining council had no jurisdiction to even consider the case,
after which Mangena then abandoned the unfair dismissal case and
chose to pursue a case to the Labour Court to challenge the refusal
of her submissions for reinstatement.
[38]
The Court in
Weder
then accepted the aforesaid to be a proper explanation for the delay
in the employees approaching the proper forum (Labour Court),
which
was a delay of 6 (six) and 8 (eight) months’ respectively.
[39]
[52]
What makes the current matter entirely
different to that in
Weder
is that this is not a case where the applicant mistakenly approached
the GPSSBC as an incompetent forum. The GPSSBC always had
jurisdiction to decide the unfair dismissal dispute, which it did,
and dismissed the case for want of jurisdiction because no dismissal
was proven to exist, on the basis of the facts as applied to clause
9.1 of the Resolution. The applicant
in
casu
never sought to incorrectly
challenge the refusal of his reinstatement appeal to the GPSSBC.
Also, and in
Weder
,
both employees almost immediately reacted and approached the Labour
Court when the rulings from the bargaining council were forthcoming.
As stated above, that was certainly not the case with the applicant.
Finally, the current delay is more than triple than that in
Weder
.
Thus I conclude that the judgment in
Weder
does not assist the applicant, where it comes to the explanation on
offer.
[53]
What arbitrator Kayster simply did as a
concluding remark in his award, was to give the applicant some
advice. This advice was that
the applicant could take the appeal
decision refusing to reinstate him on review to the Labour Court.
This issue was never before
the arbitrator to decide, and it is
questionable whether it is appropriate for an arbitrator to dispense
this kind of advice in
an award. Be that as it may, it is clear that
the arbitrator never declined jurisdiction on this basis, nor gave
the applicant
some or other permission to then refer the matter to
the Labour Court.
[54]
I am quite satisfied that the only reason
why the applicant decided to pursue the review application now before
me, was because
his original and chosen course of action did not work
out the way he wanted. He chose his original route, and cannot now
use this
chosen course of action as an excuse for being late when it
caused him to arrive at a destination he did not like, and he then
had to turn around and go the other way.
[55]
I may
add that the applicant was free to pursue both options at the same
time, the one option being an unfair dismissal case in
the GPSSBC,
and the other option a challenge of the decision taken pursuant to
the appeal (representations) for reinstatement not
to reinstate him.
The one option does not exclude the other.
[40]
[56]
But what in my view renders the delay
clearly unreasonable is cemented by what happened after the piece of
fortuitous advice dispensed
by arbitrator Kayster in his award.
Surely, by the end of August 2015, the applicant knew he had the
option to pursue a review
application to the Labour Court. But it
still takes him more than a year to bring it. How does he explain
this delay? In
my view, and for the reasons to follow, this is
completely unacceptably.
[57]
The
entire period between September 2015 and May 2016, being some 9
(nine) months, is explained in a manner that makes no sense
at all.
On the one hand, the applicant explains that he asked Mr Yali
(‘Yali’), who represented him in the arbitration,
to
assist him in the Labour Court case, but Yali declined to do so
because he did not have the requisite skill and experience.
But on
the other hand, the applicant explains that Yali could not assist him
because Yali was transferred to King Williams Town
in August 2015 and
only came back to Port Elizabeth in May 2016. I find it
incomprehensible that there would be any need to wait
for Yali to
return to Port Elizabeth in circumstances where Yali made it clear
from the outset that he could not assist the applicant.
This kind of
contrived explanation is aptly dealt with in
Chemical
Energy Paper Printing Wood and Allied Workers Union and Others v
Metal Box t/a MB Glass
[41]
as follows:
‘
It
is abundantly clear from the self-contradictions in the explanation
for the delay that the applicants and/or their attorneys
had
unfortunately not been candid with this court. It is obvious also on
the papers, that the applicants have been as lax as their
legal
representatives in the prosecution of their claim.
’
[58]
The explanation is further contaminated by
a contention by the applicant that Yali undertook to have the file
transferred to POPRCU
to assist the applicant, despite the fact that
PORCRU initially could not assist him in the arbitration at the
GPSSBC because he
was not a member of that union. Again, this
explanation makes no sense, and smacks of being contrived.
[59]
There
is no explanation of any kind as to what the applicant himself did to
pursue his review application, to arrange alternative
representation,
or even seek any kind of assistance in this entire period of 9 (nine)
months. This complete absence of an explanation
in this regard would
in normal circumstances be fatal to any review, and non-suit the
applicant.
[42]
The conduct of the applicant is comparable to the following
dictum
from the judgment in
Moraka
v National Bargaining Council for the Chemical Industry and
Others
[43]
,
where the Court said:
'A
significant consideration in deciding whether or not to dismiss this
review application is the casual approach adopted to the
litigation
by the applicant which indicates that he viewed it as a matter that
could be returned to from time to time when he or
his representatives
chose to do so. Such long periods of inactivity cannot be reconciled
with the conduct of a party that has a
consistent interest in
pursuing a case and takes the necessary steps to do so without undue
delay.
'
[60]
The next part of the explanation provided
by the applicant relates to him finally being referred to Legal Aid
by Yali in May 2016.
But it takes him some 2(two) months, until
14 July 2016, to even set up a consultation at Legal Aid. Why
this took so long
is entirely unexplained, and considering the delay
that had already been occasioned up to that point, is completely
unacceptable.
[61]
Insofar as the further explanation once the
applicant had applied for legal aid on 14 July 2016 is concerned, I
will accept that
this part of the explanation, at least, is a proper
one. It is understandable that an institution such as Legal Aid,
which does
attract a large volume of matters deserving of legal
assistance, would take some time to process the application for legal
aid
for approval, and then once approved, set up a consultation with
an attorney. The period of a month taken in this regard, in terms
of
the explanation, is in my view reasonable. Also, and once Legal
Aid had been tasked, it took about three weeks to file
the review
application. Whilst this is commendable, it is unfortunately far too
little, and far too late, and does nothing to save
the complete lack
of an explanation preceding it.
[62]
What one is therefore left with is a proper
and reasonable explanation for a period of less than 3 (three)
months, as opposed to
a period of just more than 9 (nine) months
being completely unexplained. Added to this, the explanation
offered for the period
of 13 (thirteen) months whilst the matter was
pending in the GPSSBC cannot serve as a legitimate and proper
explanation.
[63]
I thus conclude that in terms of the first
leg of the enquiry as articulated in
Khumalo
,
the delay in this case is unreasonable. This necessitates a
consideration of the second leg of the enquiry, namely whether this
Court's discretion should be exercised to overlook the delay and
nevertheless entertain the application. This entails an assessment
of
the potential of prejudice to the affected parties, as well as a
consideration as to the possible consequences of setting aside
the
impugned decision.
[64]
I accept that the applicant will suffer
prejudice. After all, he lost his employment. However this
prejudice must be considered
in the context of a number of important
factual considerations. The first is that the applicant’s
salary was stopped in May
2013, but still he did not report for work.
It must also be considered that even after being informed at the end
of June 2013 that
he was deemed to have been dismissed, and then
reporting for work on 1 July 2013 and being turned away, it takes him
more than
a year until July 2014 to submit representations requesting
reinstatement, which he was supposed to submit directly upon
reporting
for work. And lastly, he considers his options when his
appeal is declined and decides to pursue an unfair dismissal case,
which
he loses. This begs the question – is the prejudice to
the applicant not of his own making? In my view, certainly so.
[65]
Next, the applicant, in his notice of
motion, seeks the primary relief that he be reinstated backdated to 3
June 2013, which is
in essence full retrospective effect. Whilst I
accept, as said in
Khumalo
,
that I can nonetheless make an order that I consider just and
equitable if I find in favour of the applicant, I have difficulty
with the concept of restoring an employment relationship after a
period of more than 5 (five) years has passed, where the employer
is
not in any way at fault for this state of affairs. No doubt, this
scenario would be highly prejudicial to the Department, and
flies
directly in the face of the imperative of the expeditious resolution
of employment disputes.
[66]
Overall considered, in my view this is not
a case where this Court should exercise its discretion in favour of
overlooking the delay
and entertaining this matter. I remain
unconvinced that the applicant has made out a proper case for this
discretion to be nevertheless
exercised in his favour, despite the
excessive delay that exists and the unreasonable explanation for it.
The imperative of the
expeditious resolution of employment disputes,
considering the more than five year period since termination of
employment, also
weighs heavily against exercising such a discretion
in favour of the applicant.
[67]
In
sum, the excessive nature of the delay and the complete lack of a
proper and/or acceptable explanation for it, renders the delay
in
casu
unreasonable.
[44]
There is also no legitimate or justifiable basis made out upon which
a discretion should be exercised to nonetheless entertain
the
application. That being said, I am however mindful of the
dictum
in
Khumalo
,
quoted above, that an additional consideration in overlooking an
unreasonable delay lies in the nature of the impugned decision,
with
due consideration of the legal challenge made against it and the
merits of that challenge. This consideration I will turn
to next.
The
legal challenge
[68]
The first point the applicant sought to
make is that it was the fifth respondent who decided to refuse the
reinstatement appeal,
but the fifth respondent was not authorised to
do so, thus rendering the decision null and void. The fifth
respondent is the area
commissioner, and according to the applicant,
the decision could only have been made by the deputy regional
commissioner, who had
the requisite authority. The applicant’s
argument in this regard is founded on the provisions of clause 8 of
the Resolution,
which deals with appeals. In terms of clause 8.2, an
employee is entitled to submit an appeal within 5 (five) days of the
outcome
of a hearing, and this appeal is then forwarded to the
appeals authority for determination. In terms of clause 8.5, the
appeals
authority shall be the deputy regional commissioner, who may
be assisted by other functionaries.
[69]
The applicant’s case in this regard
has a fundamental flaw. This flaw is simply that clause 8 of the
Resolution does not apply
in this case. Clause 8 is specifically
applicable to an appeal against a finding in the case of disciplinary
proceedings under
clause 7 of the Resolution, or any sanction that
may be imposed under that same clause. This is evident from clause
8.1, and in
fact the context of clause 8 as a whole. For example, and
in terms of clause 8.7, the appeals authority can confirm the finding
of guilty and/or sanction, change it, or remit the matter for a
disciplinary hearing
de novo
.
In this case there were no disciplinary proceedings under clause 7.
There were no charges, and no disciplinary hearing and finding.
[70]
The deeming provisions under clause 9.1 of
the Resolution were created as a specific exception to the
application of the normal
processes under clauses 7 and 8 of the
Resolution. If the requirements of clause 9.1 are met, there is a
deemed dismissal by way
of operation of law (
ex
lege
), and not a dismissal as a result
of a decision by a chairperson of a disciplinary hearing under clause
7, which may be subject
to appeal under clause 8. In fact, clause 9.1
contains its own process to ‘challenge’, for the want of
a better description,
the application of the deemed dismissal
provision, in the form of representations for reinstatement under
that clause itself. This
is not an appeal against a finding, in that,
as discussed above, it can only be applied to procure reinstatement
following a deemed
dismissal and is the exercise of separate
legislated public power.
[71]
The fact that the applicant labelled his
representations as an appeal does not change things. It cannot be an
appeal, as clause
9.1 of the Resolution only allows for
representations seeking to motivate reinstatement, despite the
ex
lege
dismissal. The Department simply
dealt with what the applicant called an appeal, on the basis that was
representations as contemplated
by clause 9.1 of the Resolution,
which was in my view a proper approach.
[72]
Added
to the above, this deemed dismissal is in reality no dismissal at
all. It is an
ex
lege
termination of employment, provided that the prescribed requirements
for the application of such provisions are met, which in turn
entails
that a factual enquiry be made to determine if this is the case.
[45]
Considering that the provisions of clause 9.1 of the Resolution is
comparable to section 17(3)(a) of the PSA, these requirements
are, as
stated in
Gangaram
[46]
:
‘
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. 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.
’
[73]
In
MEC:
Department of Education, Gauteng v Msweli and Others
[47]
the Court articulated the facts that need to be shown by an employer
in the public service to exist, for successful reliance on
section
17(5)
[48]
of the PSA, as follows:
‘
The
court in
PAWUSA &
another v Department of Education, Free State Province & others
dealt with the facts
that need to be shown by an employer before the application on s
17(5) of the PSA can be relied on. It was
held as follows at paras
15-16:
'[15]
The provisions of s 17(5)
(a)
(i) clearly contemplate the
existence of certain facts before an officer shall be deemed to have
been discharged from the public
service. These facts are:
•
the
officer,
•
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.
[16]
It is clearly the existence of each of the facts hereinabove outlined
that triggers the deeming provision of the subsection.
No action of
the employer will accordingly trigger the deeming provision to come
into operation, which occurs ex lege.
'
[74]
It must be pointed out that in terms of
clause 9.1 of the Resolution, there is the added requirement that the
employer must endeavour
to establish the whereabouts of the employee,
in addition to the above requirements.
[75]
The requisite factual enquiry to determine
whether these requirements have been met was conducted before
arbitrator Kayster in the
arbitration proceedings at the GPSSBC. As
set out above, the arbitrator, after considering all the facts,
decided that the requirements
had been met. In short, the arbitrator
accepted that the applicant was absent from his official duties for
more than 30 days without
notifying the Department. In so finding,
the arbitrator specifically rejected the evidence provided by the
applicant to the effect
that he throughout submitted medical
certificates to the Department and that the Department was fully
aware of his whereabouts.
The arbitrator actually held that the only
proper evidence of transmission of these medical certificates to the
Department was
a proof of transmission dated 10 July 2014, which was
long after the fact. The arbitrator held that the Department was
indeed unaware
of the applicant’s whereabouts and went so far
as to visit his last known address to find him, without success,
which met
the requirement of endeavouring to establish the
applicant’s whereabouts. The arbitrator was even sceptical of
the veracity
of the medical certificates. The arbitrator in the end
concluded that the applicant’s employment terminated
ex
lege
.
[76]
In
the absence of a review challenge of this award by the applicant, all
these factual findings of arbitrator Kayster stand.
[49]
In
National
Education Health and Allied Workers Union on behalf of Kgekwane v
Department of Development Planning and Local Government,
Gauteng
[50]
the Court held:
‘
The
GPSSBC had made a final ruling on the matter. It found that it did
not have the requisite jurisdiction to deal with the dispute,
because
the appellant was dismissed by operation of law in terms of
s
17(5)(a) of the PSA. The question of jurisdiction of the GPSSBC in
this case was integrally linked to the question of whether
the
appellant was dismissed in terms of s 186 of the LRA or dismissed in
terms of s 17(5)(a
)
of the PSA. The enquiry into jurisdiction by the GPSSBC was, thus, a
factual one that had to be determined on an objective assessment
of
the evidence before the arbitrator.
The
finding of the GPSSBC that it lacked jurisdiction to deal with the
matter, because the appellant was dismissed by operation
of law in
terms of
s
17(5)(
a)
of the PSA, is a finding with final effect until set aside on review
by the Labour Court. …
’
[77]
Considering that the factual basis of the
applicant’s reinstatement appeal is virtually the same as the
factual basis on which
the applicant sought to contend before the
arbitrator that the requirements of clause 9.1 were not met, the
award of arbitrator
Keyster must be accepted to have decided these
facts, as the award remains unchallenged. The substance of the
applicant’s
legal challenge must therefore be considered based
on the factual findings of arbitrator Keyster.
[78]
However, and assuming for the purposes of
argument that I may be wrong in this respect, I will nonetheless deal
with the applicant’s
contention in the founding affidavit in
the review application that the medical certificates were sent to the
Department earlier.
There is proof of transmission attached to the
founding affidavit, reflecting that medical certificates were
telefaxed on 6 July
2013 to a number that purports to be that of the
Department. The simple answer to this is that even on this version,
it was simply
already too late. It happened after the termination
letter had already been provided to the applicant, he had attempted
to report
for work, and he was sent away in terms of the provisions
of clause 9.1 of the Resolution. He could then no longer just submit
medical certificates. He had to make representations, but this only
followed a year later.
[79]
In
the course of argument, the applicant suggested that the judgment in
Weder
was authority for the proposition that just by submitting medical
certificates, the applicant had justified his absence, and as
such,
the Department was required to reinstate him. I cannot agree with
this proposition.
Weder
is no authority for the proposition that all an employee has to do,
when confronted with a letter terminating employment based
on the
provisions of clause 9.1 of the Resolution, is to simply submit
medical certificates. In
Weder
,
the employees in fact submitted representations in line with section
17(3) of the PSA,
[51]
but
in
casu
the applicant did not. Also, and in
Weder
,
the employer gave no reasons for refusing the reinstatement
submissions,
[52]
but
in
casu
it was specifically recorded in the outcome letter that the refusal
of the reinstatement appeal was principally because of the
excessive
delay resulting from the non-compliance with clause 9.1 of the
Resolution. In
Weder
,
the Court in fact accepted that a case for refusing the reinstatement
submissions could be made out in affidavits filed in the
course of
the review application, but held that in that matter, the employer
had failed to even establish such a case on this basis.
[53]
But this is simply not applicable to the matter now before me,
especially considering the factual findings of arbitrator Keyster
before me, which stand. Again, the judgment in
Weder
cannot come to the aid of the applicant.
[80]
All of the above then has a significant
detrimental impact on the applicant’s case on the merits, so to
speak. Firstly, the
lack of authority point must fail, because once
there is a deemed dismissal, it is not an act by the Department
terminating the
employment of the applicant, and as such, clauses 7
and 8 of the Resolution cannot apply. Clause 9.1 of the Resolution
does not
prescribe who had authority to decide to reinstate the
applicant, and simply refers to ‘delegated authority’.
The applicant has made out no other case that the area commissioner
is not such a ‘delegated authority’, and if there
was
some other basis to contradict this authority the applicant needed to
prove it.
[81]
Secondly,
and when the substance of the applicant’s appeal (remembering
it is not really an appeal but actually representations)
is
considered as it was placed before the fifth respondent, it is clear
that the appeal grounds are the same as the explanation
and evidence
advanced by the applicant in prosecuting his case before arbitrator
Kayster, to prove that he was dismissed. Of particular
importance are
the appeal grounds that the applicant had at all times submitted
medical certificates to the Department by telefax,
the Department was
aware he was ill, and the Department never tried to contact him or
visit him. With the arbitrator having rejected
all this evidence and
contentions, it must follow that the applicant’s appeal grounds
would equally have no substance. It
is impermissible to raise all of
this again for consideration afresh, in the face of the unchallenged
award which, as said, stands.
It is untenable for the same issues to
be raised over and over again,
albeit
in different contexts. In
Nestlé
(SA) (Pty) Ltd v Mars Inc
[54]
the Court said:
‘…
Once
a suit has been commenced before a tribunal that is competent to
adjudicate upon it the suit must generally be brought to its
conclusion before that tribunal and should not be replicated (
lis
alibi pendens
).
By the same token the suit will not be permitted to be revived once
it has been brought to its proper conclusion (
res
judicata
).
The same suit, between the same parties, should be brought only once
and finally.
'
[82]
The
point I wish to make in this regard is in my view aptly illustrated
by the judgment in
Bouwer
v City of Johannesburg and Another
[55]
.
In that case, an applicant initially sought an order declaring his
position redundant by virtue of the abolition of his post,
which
would have entitled him to be retrenched and to receive his full
severance benefits. This application came before Landman
J (as he
then was), and the learned Judge ruled that without certain expert
evidence on the evaluation of the respective posts,
he could not
decide the matter, and he consequently dismissed the application.
Undeterred, that applicant then referred another
dispute to the
Labour Court claiming that as a result of restructuring, the post
that he previously filled had been abolished,
and he sought
declaratory relief including an order that he is entitled to
terminate his employment and receive severance benefits.
Francis J
(as he then was) heard the matter, and held as follows:
[56]
‘
It
is clear from the judgment and order made by Landman J that he had
made a definitive and final order. It is probably appropriate
to
conclude this judgment by referring to
Wolfaardt
v Colonial Government
(1899) 16 SC 250
at 252 where it is stated that:
'The
plaintiff cannot, by now changing the form of action, make
substantially the same claim as he made in the former action. The
test as to what he claimed must be sought in the pleadings, and not
in the evidence tendered by him in support of his declaration.
It is
his own fault if he failed to substantiate his case by sufficient
evidence.'
Landman
J had found inter alia that the applicant had failed to lead expert
evidence on the two different posts and therefore his
case was
shipwrecked. The applicant had failed to substantiate his case by
sufficient evidence in the previous case. In launching
the present
application the applicant has attempted to salvage his wrecked ship
which he clearly cannot do. …
’
[83]
The
judgment of Francis J in
Bouwer
was dealt with on appeal in the Labour Appeal Court in the judgment
of
Bouwer
v City of Johannesburg and Another
[57]
.
Zondo JP (as he then was), writing for the majority, dismissed
the appeal and upheld the judgment of Francis J. Zondo JP
held
that:
[58]
‘…
The
matter before Landman J was not an action but an application in
motion proceedings. In motion proceedings the affidavits
filed by the
parties do not only serve as pleadings but they also contain the
evidence that the parties place before the court
to enable the court
to decide the matter. The court decides the matter by either granting
or dismissing the applicant's application.
…
’
The
learned Judge further said:
[59]
‘…
it
must be borne in mind that a decision on the merits of the dispute
between the parties was to be based on the evidence before
the court.
If the court concluded that the appellant had failed to place
sufficient evidence before it to justify the granting
of the order
that he sought, and, therefore, dismissed the appellant's
application, that was a decision on the merits of the dispute.
That
is what Landman J did in the case between the appellant and the
first respondent.
’
Finally,
the learned Judge concluded:
[60]
‘
If
I were to extract a principle from my approach to this matter, it
would be this: if in motion proceedings the parties have placed
before the court such evidence as they have chosen to place before it
and the matter has been argued and, thereafter, the court
issues an
order that the application is dismissed and the basis of that
decision is that the applicant failed to prove its case,
the judgment
or order of the court is a judgment or order on the merits of the
case and it is final …
’
[84]
The
applicant’s contention in his representations that the
Department should have followed incapacity proceedings as
contemplated
by the LRA is disposed of by the following
dictum
from the judgment in
Msweli
:
[61]
‘…
the
application of s 17(5) of the PSA excludes the operation of the
normal procedural requirements to effect the termination of
employment of an employee where the employee has absconded as
envisaged by the PSA. The provisions of schedule 8 of the LRA in
fact
do not apply …
’
[85]
One final aspect remains for consideration,
where it comes to the prospects of success of the applicant’s
representations.
The time limit for doing so was 5 (five) days. It
took the applicant more than a year to submit same. The applicant
made no attempt
in his representations to explain the delay or seek
condonation. He approached the matter on the basis that reinstatement
was there
for the asking, when he ultimately chose to do so. The
fifth respondent was entirely within his rights in stating, in the
letter
refusing to reinstate the applicant, that the delay was well
outside the allowed period and was excessive. It is patently
unacceptable
to wait a year to file representations for
reinstatement, and then not even try to explain the delay. For this
reason alone, the
refusal to reinstate the applicant was justified.
[86]
Accordingly, the legality challenge of the
applicant is in any event doomed to fail, because it simply has no
substance. The decision
of the fifth respondent sought to be impugned
was rationally related to the purpose for which the power was given,
was clearly
justified, and accounted for all the material facts. It
follows that even considering the merits of the applicant’s
review
challenge, I remain unconvinced that it is justified that I
exercise my discretion in favour of overlooking the unreasonable
delay
in this case.
Conclusion
[87]
For all the reasons as elaborated on above,
I conclude that the delay occasioned in this instance is excessive,
and unreasonable.
Added to this, there exists no justified cause or
reason for me to exercise my discretion in favour of overlooking this
material
delay and nonetheless entertaining the applicant’s
application. The condonation application by the applicant must
therefore
fail, and falls be dismissed. That in turn also disposes of
the review application.
[88]
This
then only leaves the issue of costs. In terms of the provisions of
section 162 of the LRA, I have a wide discretion where it
comes to
the issue of costs. The respondents did oppose the matter but that
does not mean costs must follow the result. I am mindful
of the
following dictum in
Zungu
v Premier
of
the Province of KwaZulu-Natal and Others
[62]
where the Court said:
‘…
The
correct approach in labour matters in terms of the LRA is that the
losing party is not as a norm ordered to pay the successful
party’s
costs. Section 162 of the LRA governs the manner in which costs may
be awarded in the Labour Court. …
The
rule of practice that costs follow the result does not apply in
Labour Court matters. In
Dorkin
, Zondo JP explained the reason
for the departure as follows:
‘
The
rule of practice that costs follow the result does not govern the
making of orders of costs in this court. The relevant statutory
provision is to the effect that orders of costs in this court are to
be made in accordance with the requirements of the law and
fairness.
And the norm ought to be that costs orders are not made unless the
requirements are met. In making decisions on costs
orders this court
should seek to strike a fair balance between on the one hand, not
unduly discouraging workers, employers, unions
and employers’
organizations from approaching the Labour Court and this court to
have their disputes dealt with, and, on
the other, allowing those
parties to bring to the Labour Court and this court frivolous cases
that should not be brought to court.
’
In striking a fair balance in this
instance, it is my view that no costs order should be made. The
deemed dismissal provisions in
the public service is a rather
draconian provision, and I do not intend to further prejudice the
applicant with a costs order.
In all these circumstances, the
appropriate order where it comes to costs, is to make no order as to
costs.
Order
[89]
In the premises, I make the following
order:
1.
The applicant’s condonation
application is dismissed;
2.
The applicant’s review application is
consequently dismissed;
3.
There is no order as to costs.
_____________________
S Snyman
Acting Judge of the Labour Court of
South Africa
Appearances:
For the Applicant: Ms E van Staden of
Legal Aid SA
For the Respondents: Adv L Ntsepe and
Adv M Mpahlwa
Instructed by: The State Attorney
[1]
Act 66 of
1995.
[2]
This provision is similar to section 17(3)(a) and (b) of the Public
Service Act 103 of 1994 (‘the PSA’) which reads:
‘(a)(i)
An
employee, …
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 the
date
immediately succeeding his or her last day of attendance at his or
her place of duty’, and ‘(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 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’
.
[3]
No 103 of 1994.
[4]
No 108 of 1996.
[5]
(2014) 35
ILJ 613 (CC).
[6]
Id at para 35.
[7]
(2008) 29
ILJ 73 (CC) at para 41. See also
Gcaba
v Minister for Safety and Security and Others
(2010)
31 ILJ 296 (CC) at para 56.
[8]
Id at para 66.
[9]
See footnote 5 (
supra
).
[10]
(2012) 33
ILJ 1822 (LAC) at paras 26 – 27.
[11]
(2015) 36
ILJ 163 (LAC) at para 27.
[12]
See for example Section 17(3) of the PSA, and
Section 14
of the
Employment
of
Educators
Act
76 of 1998
.
[13]
(2018)
39 ILJ 384 (LAC) at para 19. See also
MEC
for the Department of Health, Western Cape v Weder; MEC for the
Department of Health, Western Cape v Democratic Nursing Association
of SA on behalf of Mangena
(2014)
35 ILJ 2131 (LAC) at paras 33 and 36 – 37.
[14]
Id at para 29.
[15]
(2016) 37
ILJ 1857 (LAC) at para 38. See also
Ramonetha
(
supra
)
at para 17.
[16]
Promotion
of Administrative Justice
Act
3 of 2000
.
[17]
Id at para 28.
[18]
(
supra
)
at para 28.
[19]
(2014) 35
ILJ 2131 (LAC) at para 33.
[20]
Id at para 34.
[21]
Id at para 35.
[22]
(2009) 30
ILJ 2653 (SCA) at para 18.
[23]
(
supra
)
at para 44.
[24]
Id at para 45.
[25]
Id at para 46.
[26]
2006
(2) SA 603
(SCA) at para 22.
[27]
(2018)
39 ILJ 131 (LAC) at para 11.
[28]
(2014)
35
ILJ
1948 (LAC)
at
para 48.
[29]
Id at para 16.
[30]
In
Makuse
v Commission for Conciliation, Mediation and Arbitration and Others
(2016)
37 ILJ 163 (LC) at para 15, the Court described an 8(eight) month
delay as ‘egregious’. The following delays
were all
described as an ‘excessive delay’: a year (
Moila
v Shai NO and Others
(2007) 28 ILJ 1028 (LAC) at para 27); 18 months (
Maseko
v Commission for Conciliation, Mediation and Arbitration and Others
(2017) 38 ILJ 203 (LC) at para 15); 11 months (
GIWUSA
on behalf of Heyneke v Klein Karoo Kooperasie Bpk
(2005) 26 ILJ 1083 (LC) at para 14).
In
Khumalo
(
supra
)
at paras 50 and 68, the Court was seized with a delay of 20(twenty)
months, and said it was ‘significant’.
[31]
Id at paras
49 – 50.
[32]
Id at paras 52 – 53.
[33]
Id at para 57.
[34]
See
Food
and Allied Workers Union on behalf of Gaoshubelwe v Pieman’s
Pantry (Pty) Ltd
(2018) 39 ILJ 1213 (CC) at para 187
;
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
(2010) 31 ILJ 273 (CC) at para 46;
Strategic
Liquor Services v Mvumbi NO and Others
(2009)
30 ILJ 1526 (CC)
at
paras 12 – 13.
[35]
(2017)
38 ILJ 2261 (LAC) at para 30.
See
also
Solidarity
and Another v Public Health and Welfare Sectoral Bargaining Council
and Others
(2014)
35 ILJ 2105 (SCA) at para 13.
[36]
It is trite that the issue as to whether or not a dismissal exists
is an issue of jurisdiction – see
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others
(2008)
29 ILJ 2218
(LAC) at paras 39 – 40;
De
Milander v Member of the Executive Council for the Department of
Finance: Eastern Cape and Others
(2013) 34 ILJ 1427 (LAC) at para 24;
Mnguti
v Commission for Conciliation, Mediation & Arbitration and
Others
(2015) 36 ILJ 3111 (LC) at para 14.
[37]
See
Weder
(
supra
)
at para 15.
[38]
See
Weder
(
supra
)
para 16.
[39]
Id at para
21.
[40]
See
Gangaram
(
supra
);
Solidarity
and Another v Public Health and Welfare Sectoral Bargaining Council
and Others
(
supra
).
[41]
(2005) 26
ILJ 92 (LC) at para 8.
[42]
See
Saloojee
and Another NNO v Minister of Community Development
1965 (2) SA
135
(A) at 141E-H
;
Superb
Meat Supplies CC v Maritz
(2004) 25
ILJ 96 (LAC) at para 27;
Silplat
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
(2011)
32 ILJ 1739 (LC)
para 54;
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
(2010) 31
ILJ
1413
(LC) at paras 24 – 25;
Van
Niekerk v Zondi NO and Another
(2001) 22 ILJ 1202 (LC) at para 27;
National
Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A
Division of Zimco Group) and Others
(2015) 36
ILJ 232 (LC) at para 29;
3G
Mobile (Pty) Limited v Raphela NO and Others
[2014] JOL
32479
(LC) at para 32.
[43]
(2011)
32
ILJ
667 (LC)
at
para
20.
[44]
Compare
Toyota
SA Motors (Pty
)
Ltd v Commission for Conciliation, Mediation and Arbitration and
Others
(2016)
37 ILJ 313 (CC) at paras 45 – 47.
[45]
See
Department
of Health v Public Health and Social Development Sectoral Bargaining
Council and Others
(2014)
35 ILJ 2166 (LC) at para 30;
Gangaram
(
supra
)
at para 28;
Grootboom
v National Prosecuting Authority and Another
(2014)
35 ILJ 121 (CC) at paras
37
– 38;
Ramonetha
(
supra
)
at para 23;
Weder
(
supra
)
at para 36.
[46]
(
supra
)
at para 28.
[47]
(2013) 34
ILJ 650 (LC) at para 34.
[48]
Now
Section 17(3)
of the PSA.
[49]
Compare
Public
Servants Association on behalf of Smit v Mphaphuli NO and Others
(2014) 35 ILJ 2260 (LC) where such a determination was in fact
subjected to a review application, along with the review application
in terms of
Section 158(1)(h)
relating to the refusal to reinstate.
[50]
(2015) 36
ILJ 1247 (LAC) at paras 28 – 29.
[51]
See paras 3, 9 and 11 of the judgment.
[52]
Weder
(
supra
)
at para 38.
[53]
Id at para 40.
[54]
2001
(4) SA 542
(SCA)
at para 16.
See also
National
Union of Metalworkers of SA and Others v
Bumatech
C
alcium
Aluminates
(2016) 37 ILJ 2862 (LC) at para 42.
[55]
(2006) 27
ILJ 2590 (LC).
[56]
Id at paras
12 – 13.
[57]
[2009] JOL
23913 (LAC).
[58]
Id at para
23.
[59]
Id at para
26.
[60]
Id at para
41.
[61]
(
supra
)
at para 43.
[62]
(2018)
39 ILJ 523 (CC) at paras 23 – 24.