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[2019] ZALCJHB 282
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Mokotsane v North West MEC for Health Provincial Department of Health and Another (JR1698/18) [2019] ZALCJHB 282 (15 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR 1698 / 18
In
the matter between:
CHRISTINA KEDIBONE
MOKOTSANE
Applicant
and
NORTH WEST MEC FOR
HEALTH
First Respondent
PROVINCIAL DEPARTMENT
OF HEALTH
NORTH
WEST PROVINCE
Second Respondent
Heard
:
16 July 2019
Delivered
:
15 October 2019
JUDGMENT
SAUNDERS,
AJ
Introduction
[1]
In
this matter, the applicant 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 first respondent, in terms of which the applicant’s
appeal
representations for reinstatement following a purported deemed
termination of employment for desertion, were refused. The
applicant
seeks consequential relief to the effect that she be reinstated with
retrospective effect to the date of her deemed discharge.
[2]
The appeal outcome sought to be challenged
by the applicant was handed down on 2 August 2018 and received on 16
August 2018. The
applicant’s review application was brought on
28 September 2018.
[3]
Despite an apparent opposition by the first
and second respondents at the hearing of the matter, much of the
factual matrix was
admitted, which factual matrix shall be set out
below.
The relevant
background
[4]
The applicant was employed by the second
respondent prior to her deemed dismissal. The applicant, with two
other employees, was
placed on precautionary suspension for suspected
theft on 8 July 2015, pending the outcome of an investigation. A
criminal case
was opened, which the Director of Public Prosecutions
declined to prosecute and thereafter the respondents uplifted the
suspension
of the applicant’s two colleagues on or about 22
October 2015. The applicant’s suspension was not uplifted.
[5]
On
22 October 2015, the same day on which the applicant’s
colleagues’ suspensions were uplifted, the applicant received
a
letter dated 2 September 2015 notifying her that her employment had
been terminated on the basis that she had been absent from
work as
from 27 July 2015. This letter referenced section 17(3)(a)(i) of the
Public Service Act
[2]
which
letter stated:
“
An
officer who absents himself/herself from his official duties without
permission of his/her head of department, office or institution
for a
period exceeding one (1) calendar month, shall be deemed to have been
discharged from the public service on an account of
misconduct with
effect from the date immediately succeeding his/her last day of
attendance at his/her place of duty.”
[6]
Upon intervention by the applicant’s
union who undertook to investigate the matter and according to the
respondents, a letter
was given to the applicant uplifting her
suspension and when she failed to report for work, her employment was
terminated. The
applicant’s version is that she did not receive
this letter. The applicant continued to engage with the respondents
over
the course of many months, and ultimately instructed her
attorney to correspond with the respondents requesting her
reinstatement
on the basis of good cause shown.
[7]
This reinstatement request was declined on
2 August 2018 and communicated to the applicant on 16 August 2018. It
is this decision
which the applicant seeks to review and set aside.
The reason given for this refusal was:
“
because
you did not show any good cause for not reporting for duty for the
period in question.”
[8]
In the opposing papers filed by the
respondents, the untenable proposal put forward was that the
applicant was invited to make representations
regarding her
suspension and in the absence of these representations, she would not
be placed on suspension. On the basis that
no representations were
made, the respondents aver that no suspension took place and
therefore the applicant was ultimately deemed
to be dismissed by
operation of law. This is in complete contradiction to the suspension
letters given to the individuals, including
the applicant, and
counsel for the respondents did not persist with this in argument.
[9]
The applicant, via her legal
representatives, tendered her services and made representations
regarding her belief that she was on
suspension. She persisted in her
view that she had been placed on suspension which should have been
uplifted at the same time the
suspension of her colleagues was
uplifted.
Applicable legal
principles
[10]
The
decision to reinstate an employee in terms of the “deemed
dismissal” provisions are legislated public powers and
as such,
parties to a dispute cannot exercise the traditional mechanisms as
set out in the LRA. This was specifically recognized
in
Ramonetha
v Department of Roads and Transport, Limpopo and Another
[3]
where the Court said:
“
The
current matter is concerned with the exercise of a power in terms of
s17(3)
(b)
,
which neither has its source in the contract of employment, nor falls
within the ambit of 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.
”
[11]
In the founding affidavit, the applicant
state that the decision not to reinstate the applicant was premised
on the failure to show
good cause but that this is not rationally
connected to the submissions because the applicant did not report for
duty due to her
suspension. She was always available to return to
work but did not do so as her suspension was never uplifted.
[12]
Furthermore,
the applicant argued that the decision-making body did not apply its
mind to the submissions. There was no basis to
claim that the
decision to fail to reinstate was either “reasonable” or
“lawful” and does not meet the
test set out in the matter
of
De
Villiers v
Head of
Department: Education, Western Cape Province
[4]
more
specifically at paragraph [27] wherein Van Niekerk J found:
“…
More
recently, in
Ntshangase
v MEC for Finance, KwaZulu-Natal & another
(2009)
30 ILJ 2653 (SCA)
;
[2009] 12 BLLR 1170
(SCA), a case dealing with a decision taken by a
person appointed to chair a disciplinary enquiry into allegations of
misconduct
by a public sector employee, the SCA held:
'Undoubtedly this section
[s 158(1)
(h)
] provides in explicit terms that a decision taken
by Dorkin who acted qua his employer can be reviewed on such grounds
as are permissible
in law. The ground relied on by the second
respondent for the review of Dorkin's decision is rationality, which
is one of the recognized
grounds of review. I am therefore of the
view that Dorkin's decision can be taken on review under s
158(1)
(h)
of the LRA.'
Even if the decision not
to reinstate applicant did not constitute administrative action, this
court retains review jurisdiction
on the ground of legality (at
least), which incorporates most, if not all, of the grounds of review
relied upon by applicant in
his founding affidavit. These would
certainly require that functionaries exercise public power in a
manner that is not
irrational or arbitrary, and that they be
accountable for the manner in which that power is exercised.”
[13]
In sum, the applicant’s review
application in this case is indeed competent under section 158(1)(h)
of the LRA, 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.
[14]
The substance of the applicant’s
appeal grounds is simply an explanation as to how and when she became
aware of the purported
dismissal and her investigations surrounding
this. The respondents reply simply stated that no good cause was
shown by the applicant.
It took the matter no further. The decision
of the respondents was clearly irrational and unreasonable and stands
to be set aside.
Conclusion
[15]
For all the reasons set out above and
considered in argument by counsel, I am of the view that the
applicant has made out a case
for the relief that she seeks.
[16]
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, to all
intents and purposes, abandoned a true opposition
in court at the
hearing. I am mindful of the following dictum, to which I was
referred to, in
Zungu
v Premier
of
the Province of KwaZulu-Natal and Others
[5]
where the Constitutional 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.
’
[17]
In striking a fair balance in this
instance, it is my view that the respondents should bear the costs of
this application. The deemed
dismissal provision in the public
service is a rather draconian provision, which the respondents
exercised for no rational reason
connected to the facts at hand.
There was no need for the matter to be opposed when it was
essentially abandoned in argument. I
do not intend to further
prejudice the applicant by making her bear her own costs. The
appropriate order where it comes to costs
is to make an order that
the respondent pay the costs.
[18]
In the premises, I make the following
order:
Order
1.
The decision of the first respondent is
reviewed and set aside;
2.
The second respondent is ordered to
reinstate the applicant retrospectively on the same terms and
conditions of employment as previously
enjoyed;
3.
The respondents to pay the applicant’s
costs jointly and severally.
_____________________
S Saunders
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant: Advocate
CP Naude
Instructed by:
Isaac
Teke Mothibe Attorneys
For the
Respondents: Advocate
T Moneri
Instructed
by: The
State Attorney
[1]
Act
66 of 1995.
[2]
Act
30 of 1994.
[3]
(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.
[4]
(2010) 31 ILJ 1377 (LC).
[5]
(2018)
39 ILJ 523 (CC) at paras 23 – 24.