About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2019
>>
[2019] ZALCD 6
|
|
Khanyile v Head of the Department of Education: KwaZulu-Natal and Another (D1446/18) [2019] ZALCD 6 (27 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
No: D1446/18
In the matter between:
CYRIL SIMANGALISO
KHANYILE Applicant
and
HEAD OF THE DEPARTMENT
OF EDUCATION:
KWAZULU-NATAL
First Respondent
MEC FOR EDUCATION:
KWAZULU-NATAL
Second Respondent
Heard: 01
August 2019
Delivered: 27
August 2019
Summary: Review of
refusal to reinstate ito section 14 of the Educators Act 76 of 1998.
JUDGMENT
GUSH, J
[1]
In
this matter, the applicant seeks an order reviewing and setting aside
the respondents refusal to reinstate him in terms of section
14 of
the Employment of Educators Act
[1]
(the Act). Briefly, the facts are that in January 2014, the applicant
who was at the time, employed by the respondents as an educator,
consulted a psychologist as a result of his depression arising from
an incident at the school at which he was teaching which had
led to
him being found guilty of misconduct.
[2]
The
applicant was initially found guilty of misconduct and his services
were terminated. He launched an appeal before the appeal
tribunal
which was dismissed on the merits but his appeal regarding sanction
of dismissal was reversed and replaced with a sanction
of three
months suspension without pay. The applicant avers that he was
falsely accused of the misconduct which led to his dismissal
and that
his accusers recanted in 2016 and 2017.
[3]
In
his founding affidavit, the applicant avers that after he was found
guilty, he was “
transferred from
one school to another as a result of either parents, governing bodies
or fellow educators not being at ease having
[him] teach at the
schools I was allocated to
”.
[4]
It
is common cause that on 25 May 2017, the applicant was seconded to
the Mount Pleasant primary school. The applicant records that
he
“
reported to the school and met
with the principal who gave [him] an orientation and handed him the
textbooks he would need for his
classes
”
[5]
The
applicant, however, did not report for duty on 26 May 2017. It is so
that the applicant had been booked off work until 5 June
2017. The
applicant makes no averment in his pleadings that he had complied
with the Department of Education’s requirements
by submitting
an application for “sick” leave. On 5 June 2017, the
applicant was again booked off work, this time until
16 June 2017.
Again, the Applicant does not aver that he had submitted an
application for “sick” leave.
[6]
It
is accordingly apparent from the pleadings that despite being in
possession of the medical certificates, the applicant did not
complete the required and necessary leave forms or submit the medical
certificates to the respondents. In other words, the applicant
had
simply not applied for “sick leave”.
[7]
In
the applicant’s founding affidavit he avers that on 15
September 2017, prior to his deemed dismissal, he wrote to the
respondents requesting that he be placed in an alternative job. This
letter
[2]
makes no mention of
the fact that he had previously been booked off work by his Doctor
nor does it allege that he is incapable
of working. At best for the
applicant, he simply avers that the reasons set out in the letter
makes it “
difficult
to continue with teaching the schoolkids”
.
Nothing in this letter suggests to the respondent that the applicant
is not performing his duties or that he is incapable of performing
those duties.
[8]
Unsurprisingly,
given the applicant’s protracted absence from work without
apparent reason, the respondents, on 19 October
2017, addressed a
letter to the applicant advising him that as a result of his
continued absence and failure to submit valid leave
applications, he
was deemed to have been discharged in terms of section 14 (1)(a) of
the Act.
[9]
The
letter advised the applicant that the respondents “may on good
cause shown” approve his reinstatement. This application
for
reinstatement was to comply with section 14(2) of the Act.
[10]
The
section dealing with reinstatement requires, as a precondition to
considering an application for reinstatement that the applicant
“report for duty”. It is common cause that the applicant
did not report for duty prior to submitting his application
for
reinstatement and still has not reported for duty.
[11]
In
addition, the respondents in the notice of the deemed termination,
specifically advised the applicant that his application for
reinstatement should include:
‘
Substantiating
reason/s which showed good cause for the reinstatement together with
the necessary supporting documentation, and
Reason/s for the failure
to submit the application for leave, which led to discharge from
service, together with any supporting
documentation’.
[12]
For
unexplained reasons, the applicant did not comply with either.
[13]
In
his bundle of documents, the applicant included what he referred to
as his “Application for reinstatement and annexures
thereto”.
[3]
[14]
This
bundle of documents contains
inter alia
:
‘
a.
An Application for reinstatement. This letter even on a liberal
interpretation does not contain: “substantiating
reason/s which
showed good cause for the reinstatement together with the necessary
supporting documentation”; nor “reasons
for the failure
to submit the application for leave, which led to discharge from
service, together with any supporting documentation.”
The last
medical certificate attached to his application is dated 5 June 2017.
This certificate certifies the applicant unfit for
duty “until
16/6/2017”. It should be born in mind that the applicant was
deemed dismissed on 19 October 2017.
b.
A
report by his psychiatrist dated 23 October 2017.
[4]
This report does not declare or certify that the applicant is unfit
for duty. It merely records a recommendation that the applicant
be
placed on administrative duties’.
[15]
Conspicuous by its absence is any completed leave form or medical
certificate expressly recording that
the applicant is unfit to report
for duty. Given the provisions of section 14 of the Act, I am
satisfied that in circumstances
where the applicant is not able to
report for duty, it would suffice in its place, to apply for leave on
account of his illness
and submit a medical certificate declaring him
unfit to report for duty.
[16]
From the papers, it is clear that the applicant, by his own
admission, did not as is required by the
terms of employment, submit
the necessary leave forms regarding his incapacity. His failure to do
so remains entirely unexplained
in his application for reinstatement.
[17]
In his application for reinstatement, the applicant filed what can
only be described as a barely legible
handwritten note by Dr. P.
Kassen. This note does not constitute a medical certificate and does
no more than recommend that the
applicant perform administrative
duties.
[18]
It must be borne in mind that the respondents employed the applicant
as an educator. It is apparent
from the applicant’s affidavit
that for the period from 2014 to his dismissal in October 2017, he
did not perform his duties
as an educator. The last valid medical
certificate that the applicant submitted to his employer expired on
16 June 2017. This certificate
was also issued by Dr. Kassen who
records having seen the applicant on 25 April 2017 and 22 May 2017.
On the latter occasion, Dr
Kassen issued the applicant with a medical
certificate declaring him “
unfit for duty until 05:06:2017
”.
[19]
From the applicant’s own papers, this was the last time that he
provided his employer with a
medical certificate. As a result, the
respondent did not unreasonably deem the applicant dismissed on 19
October 2017. As is recorded
above, this letter spelt out in some
detail what the applicant was to do should he wish to apply for
reinstatement. The applicant
did not comply with the provisions of
section 14(2) of the Act. Specifically, the applicant did not report
for duty; or provide
a medical certificate; or explain why he had not
applied for “sick” leave; and did not show good cause why
he should
be reinstated.
[20]
Unsurprisingly in the circumstances, the respondents refused his
application for reinstatement.
[21]
The applicant has not shown good cause for his reinstatement. He is,
on his own version, not fit for
duty or to perform the tasks he was
employed to perform. In addition, the applicant has simply not in any
way even attempted to
explain his failure to submit the applications
for leave.
[22]
As already mentioned above, in this Court, the applicant seeks to
review and set aside the respondents’
refusal to reinstate him.
The applicant however has failed to demonstrate that his application
for reinstatement complied with
the requirements of the Act or the
letter deeming him dismissed. Taking into account the information and
documents placed before
the respondents by the applicant in applying
for reinstatement, it cannot be said that the decision
of the
respondents to refuse the applicant’s reinstatement is
reviewable.
[23]
Given the circumstances of this matter, I am disinclined to make an
order regarding costs.
[24]
In the result, I make the following order:
Order
1.
The applicant’s application is
dismissed;
2.
There is no order as to costs.
_______________________
D H Gush
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant: Advocate
T Seery
Instructed by:
Nompumelelo
Hadebe Inc.
For the
Respondents: Advocate
Goldstone
Instructed
by: The
State Attorney.
[1]
Act
76 of 1998.
[2]
At
page 77 annexure I.
[3]
Index to record of proceedings at pages 6-16.
[4]
Index to record of proceedings pages 11 – 14.