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[2018] ZALCD 2
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Mogoera and Others v MEC for the Department of Economic Development Tourism and Environmental Development (D100/16) [2018] ZALCD 2 (9 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: D100/16
In
the matter between:
MOGOERA
LEEPILE
SSM
First Applicant
KAMBULE
MP
Second Applicant
MOKOENA
KP
Third Applicant
and
MEC
FOR THE DEPARTMENT OF
ECONOMIC
DEVELOPMENT TOURISM
AND
ENVIRONMENTAL
DEVELOPMENT
Respondent
Heard:
22 November 2017
Delivered:
9 February 2018
Summary:
Section 17 of the Public Service Act. In order to succeed with an
application to be reinstated the employee must comply
with section
173(b) by
inter
alia
reporting for duty. This is a condition precedent to the application
being considered. The applicants expressly did not report
for duty.
Application to review the refusal to reinstate dismissed with costs.
JUDGMENT
GUSH J
[1]
The
applicants in this matter apply for the following relief:
a.
Condonation
for the late referral of the matter;
b.
the
failure of the respondent reconsider the deemed dismissal;
c.
alternatively,
to review and set aside the decision of the respondent to uphold
/confirm the deemed dismissal;
d.
that
the deemed dismissal on 3 July 2015 be declared unfair and be set
aside;
e.
that
the applicants be reinstated and be paid their remuneration and
benefits from the date of their dismissal; and
f.
costs.
[2]
The
applicants’ application for condonation was not opposed and, at
the commencement of the hearing, I granted condonation
in so far as
it was necessary.
[3]
It
is necessary to set out a brief background to the circumstances that
led to the applicants’ deemed dismissal in order to
consider
the basis of the applicants claim.
[4]
The
applicants were all employed by the respondent, between 1996 (first
and second applicants) and 2006 (third applicant). On 1
November
2008, the applicants were “seconded to perform duties in the
then Free State Liquor Authority “until further
notice”.
[i]
[5]
During
2010, the Free State Liquor Authority (FSLA) was dissolved and a new
entity was established namely the Free State Gambling
and Liquor
Authority (FSGLA). The employees of the FSLA were transferred to the
FSGLA. The applicants, not being employees of the
FSLA were not
transferred.
[6]
As
the applicants’ secondment had come to an end, they were
advised that they were to be re-absorbed into the respondent’s
department.
[7]
The
applicants were apparently dissatisfied with the re-absorption into
the respondent’s department and engaged in protracted
consultations with the respondent. The applicants went so far as to
challenge the fact that they had not been transferred to the
FSGLA in
the Free State High Court. This application was dismissed.
[8]
During
this time, the applicants religiously refused to report to the
offices of the respondent in the positions allocated to them
in the
respondent’s department but persisted in reporting only to the
offices where they had performed their duties for the
FSLA where they
had previously been seconded.
[9]
This
refusal to report for duty continued unabated inexplicably for a
number of years. The situation was brought to head when the
respondent eventually grasped the nettle and addressed letters to the
applicants. The contents of the letters read:
‘
Transfer:
Yourself
1.
During
January 2011, provincial executive committee [EXCO] took a decision
that the former employees appointed in Liquor Affairs
sub-directorate
must be absorbed within the department. Subsequent to various
consultations with you since June 2011, a post ...
was identified for
you, but you never reported for duty at the indicated section.
2.
You
are given a final opportunity to report for duty at the indicated
section with immediate effect after the receipt of this letter.
Please report to Mr. T T Radikeledi: Director Business Regulations.
Take note that if you fail to report for duty after receipt
of this
letter, section 17(3)(a)(i) of the Public Service Act, 1994 as
amended, will be invoked. Further take note that if you
fail to
report to the indicated section, your salary will be frozen whilst
the abscondment process is being finalised.
[ii]
[10]
Nothing
could have been clearer. The applicants were instructed to report for
duty and the consequences of their failure to do so
was clearly set
out. Section 17(3)(a)(i) reads
‘
An employee,
who absents himself from his official duties without permission from
his 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…
[iii]
[11]
In
response to these letters, the applicants’ attorney replied by
letter firstly and disingenuously suggesting that the purpose
of the
letters was an instruction to the applicants to “transfer
themselves”.
[12]
The
applicants’ letter continues to confirm and record that the
applicants had not reported for duty nor worked for some five
years.
No mention is made by the applicants’ attorney of the
consultations or the failed court application that to all intents
and
purposes resolved the dispute over the fact that the applicants were
not transferred to the FSGLA. The letter simply and unequivocally
records that the applicants will not report for duty as “it
will be in the best interests of all parties to have a proper
consultation process and/or formal meeting to discuss [the
applicants] concerns… .
[iv]
[13]
Needless
to say this response inevitably lead to the respondent issuing
Section 17(3)(i) letters to the applicants advising them
that they
were deemed dismissed by virtue of the provisions of that section, as
had been recorded in the previous letter.
[14]
Quite
correctly, the letters from the respondent specifically referred the
applicants to the provisions of section 17(b) of the
Act that spells
out the process to be followed by employees who are deemed to have
dismissed whereby they can apply on good cause
shown to be
reinstated.
[15]
Section
17(b) provides that “If the employee who is deemed to have been
so dismissed,
reports
for duty
at any time after the expiry of [the period of absence] the relevant
executive authority may, on good cause shown approve the
reinstatement of the employee… .
[v]
(my emphasis)
[16]
The
applicants, through their attorney, elected to make representations
as is envisaged by Section 17(b). Conspicuous by its absence
is any
suggestion that the applicants had reported for duty. It is common
cause from the pleadings that the applicants had at no
stage reported
for duty at the designated offices where they had been placed after
the end of their secondment and their placement
in the respondent’s
department.
[17]
The
applicants had not reported for duty prior to the letter referred to
in paragraph 9 above; they did not report for duty after
having
received the letter;, despite that letter clearly and unequivocally
instructing them to report and spelling out the consequences
of not
reporting; and finally, despite having been referred to Section 17(b)
the applicants did not fulfil the condition precedent
to having their
dismissal reversed, viz.
REPORT
FOR DUTY
.
[18]
The
application of the deemed dismissal contemplated in Section
17(3)(a)(i) has long been held not to constitute a dismissal as
contemplated by the
Labour Relations Act 66 of 1995
. It is a
termination of employment by operation of law.
[19]
It
is so that the refusal of the executive authority to reinstate may
well constitute in appropriate circumstances an unfair dismissal.
In
order for the executive authority to even consider representations,
good cause and reinstatement, the applicants in this matter
were
required to comply with the statutory condition precedent to having
their representations considered. Reporting for duty enables
the respondent to consider whether good cause had been shown and if
so reinstatement. In the absence of any attempt by the applicants
to
report for duty, there can be no basis upon which the respondent can
be required to consider the representations.
[20]
The
statute requires the applicants to have reported for duty as a
condition precedent to the respondent considering the application.
Where this condition has not been satisfied, the executive authority
(respondent) is not required to consider the representations.
[21]
At
the commencement of these proceedings, the applicants were not aware
that the respondent had refused their request for reinstatement
without giving reasons. Nothing hangs on this as in the absence of
compliance with the statute by reporting for duty there is no
basis
for the respondent to consider the application.
[22]
As
far as costs are concerned taking into account the specific facts of
this matter and in particular that the applicants have for
a number
of years steadfastly refused to report for duty whilst receiving
their salaries; as well as the requirements of law and
fairness, I am
satisfied that costs should follow the result.
[23]
For
the reasons set out above, I make the following order:
The
applicants’ application is dismissed with costs.
D H Gush J
APPEARANCES:
FOR THE APPLICANTS:
Adv A Berry
Instructed
by Pieter Peyper Attorneys
FOR THE
RESPONDENT:
Adv Skosana SC; Adv Nondwangu
Instructed
by State Attorney
[i]
Pleadings para 5.2 page 10 and
annexure ML1 and ML2 pages 22 and 23.
[ii]
Pleadings annexures ML10, 11 and 12.
Pages 57-58.
[iii]
Section 17(3)(i)
of the Public Service Act, 1994.
[iv]
Pleadings annexure ML13 page 60/1.
[v]
Section 17(b) of
the
Public Service Act, 1994.