IN THE LABOUR COURT OF SOUTH AFRICA
(Held at Johannesburg)
Case No: J
3121/98
In the matter between:
THE PUBLIC SERVANTS ASSOCIATION
First Applicant
Second Applicant
and
First Respondent
DIRECTOR GENERAL OF PROVINCIAL
ADMINISTRATION: GAUTENG PROVINCE Second Respondent
AGRICULTURE, CONSERVATION AND
Third Respondent
REASONS FOR JUDGMENT
REVELAS J:
[1] The second applicant, a member of the first applicant, was employed by the
Department of Agriculture, Conservation and Environment as an employee of the
Gauteng Provincial division and held the position of the First Liaison Officer.
[2] The applicants have brought an application to this court, seeking to set
aside a decision of the respondent’s to dismiss her. The second applicant also
sought reinstatement, retrospectively as from 1 September 1998, on the same
terms and conditions which applied to her employment position on that date and
the costs of the application.
[3] Although this is not apparent from the founding papers, the applicant
sought to set aside the aforesaid decision in terms of section 158(1)(h)of the
Labour Relations Act 66 of 1995 (“the LRA”).
[4] The respondents’ case is that the second respondent, never took a decision
to dismiss the second applicant. The case for the respondents is that at all relevant
times, there existed between the second applicant and Gauteng Province an
employer employee relationship within the definition of “employer” and
“employee” contained in section 213 of the LRA, as well the definition of an
“officer”, contained in section 1 of the Public Service Act, 1994 (Proclamation
103 of 1994); and the definition of “employer” and “employee” contained in
section 1 of the Public Service Labour Relations Act, 1994 (proclamation 105 of
1994). In consequence of the aforegoing, the provisions of Proclamation 103 of
1994 was at all relevant times applicable to the second applicant and more
particularly section 17(5) of Proclamation 103, which stipulates as follows:
“(a)(i) an officer 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
calender month shall be deemed to have been discharged from the public service on account
calender month shall be deemed to have been discharged from the public service on account
of misconduct (my emphasis) with effect from the date immediately succeeding his/her last
day of attendance at his or her place of duty.
(ii) if such an officer assumes other employment, he or she shall be deemed to be
charged as aforesaid irrespective of whether the said period has expired or not.
(b) if an officer who is deemed to have been so discharged reports for duty at ant time
after the expiry of the period referred in paragraph (a) the Commission may,
notwithstanding anything to the contrary contained in any law, recommend that,
subject to the approval of the relevant executing authority, he or she be reinstated in
the Public Service in his or her former or any other posts or position on such
conditions as the Commission may recommend and in such 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 Commissioner may
recommend.”
[5] The respondents’ argue that upon a proper interpretation of section 17 (5)
(a)(i) an officer is at once deemed to have been discharged for misconduct as soon
as he or she has absented himself or herself from his or her official without
permission for more than a calender month and that such a discharge (or
dismissal) does not depend on any decision on the part of the respondent or the
department. Under these circumstances, the respondents argue, that an employee is
dismissed by operation of law and not by the exercise of any discretion and this
effectively results in an automatic dismissal which the respondents are legally
obliged to implement.
[6] In terms of section 191 of the Act, an employee who is dismissed for
misconduct, may not refer his or her dismissal dispute to the Labour Court but is
obliged to refer the matter for conciliation first and if the dispute remains
unresolved, the matter should be referred to arbitration under the auspices of the
Commission for Conciliation, Mediation and Arbitration (“CCMA”).
[7] When I raised this issue, the respondents counsel indicated that he did not
wish to make any propositions in this regard. Counsel on behalf of the applicants
contended that, the application is brought in terms of section 158(1)( h) of the
LRA, which is applicable to employees of the State, and the 2 nd applicant is not
required to go through the aforesaid route of conciliation and
arbitration/adjudication, and the matter should be determined on the papers as a
review.
[8] The Relevant Facts
review.
[8] The Relevant Facts
On 16 September 1997, the second applicant applied to the third respondent
be boarded on the grounds of ill health which application had apparently not
yet been finalized at the time of this application. Consequently, she often on
prolonged sick leave which had always been approved by her employer.
[9] In support of her application to be boarded on the basis of poor health, the
second applicant furnished medical reports and the required form which was
completed by a psychiatrist. According to the psychiatrist who treated the second
applicant, she has a long, complicated medical history and suffers from serious
psychiatric problems which would require long terms chemotherapy and
psychiatric therapy which could possibly result in hospitalisation. The applicant
was also diagnosed as suffering from medical problems related to her colon.
[10] On 11 August 1998, the second applicant brought a further application for
sick leave. In support thereof she furnished a Doctor’s certificate signed by Doctor
A H Potgieter and in terms of this certificate the second applicant was to return to
work on 29 August 1998, a Saturday, not a normal work day for the second
applicant.
[11] On 31 August 1998 the second applicant alleges she visited her place of
work with a further application for sick leave and this time the supporting medical
certificate was issued by Doctor JJ Grov é a psychiatrist. In terms thereof, she had
sick leave until 16 October 1998. On Sunday, 27 September 1998, the third
respondent sent a telegram to the second applicant which reads as follows:
“ You are expected to work Monday 28 September 1998. If not, you will be
discharged.”
[12] The applicant, who believed that she would be on sick leave until 16
September 1998 because she had handed in such an application, phoned the third
respondent’s personnel officer, Ms Loubser, who was apparently not available,
and the second applicant left a message on Mrs Loubser’s answering service
machine, to the effect that she had already submitted a sick leave form and
consequently regarded herself to be on sick leave.
[13] On 29 September 1998, Ms Loubser informed the second applicant
telephonically, that she was not in possession of the second applicant’s sick leave
telephonically, that she was not in possession of the second applicant’s sick leave
form and the second applicant promised to furnish the forms the following day.
However the second applicant explains that she intended to have a meeting with
her employer and her union representative, but due to the unavailability of the
third respondent, a meeting was scheduled for 8 October and she intended to take
the application form to this meeting.
[14] On 2 October 1998, the third respondent sent a letter to the second
applicant which reads as follows:
“ My telegram dated 22 September 1998 in the above regard as reference. You did
not respond to this telegram and you are therefore discharged from the public
service according to section 17(5)(a)(i) of the Public Service Act of 1994.”
No mention was made of the communications between the the second
applicant and Ms Loubser, who in any event never indicated to her that her
services had already been terminated.
[15] The second applicant alleges that in the interim she has also received a
letter from the third respondent, the relevant part of this reads as follows:
“ According to our records your last sick leave form submitted, which was not
approved (my emphasis), was up to 28 August 1998. You have therefore been absent
from work since 1 September 1998 without permission”
[16] In the same letter the second applicant is advised of the contents of section
17(5)(a)(i) of Proclamation 103 (“the proclamation”) and notified that in terms of
that section, her services have been terminated with the third respondent with
effect from 1 September 1998.This letter is signed by the third respondent.
[17] The second applicant thereafter wrote a letter dated 12 October 1998
demanding reinstatement.
[18] According to the third respondent no one suggested or proposed that the
second applicant be discharged or dismissed in terms of section 17(1) or (2) of the
Proclamation and that it was not an option under consideration during August
1998 when the second applicant submitted her application for leave. This
application was considered by Ms Mokoena the Director : Finance and
Administration of the third respondent, who decided not to recommend the
granting of leave. She drafted a letter to the effect that leave would not be granted.
She intended to dispatch a letter to the second applicant in this regard but this was
not done. The reason therefore was that the matter was referred to the third
respondent who took the matter over from Ms Mokoena.
[19] The third respondent describes in her answering affidavit, how she on 22
[19] The third respondent describes in her answering affidavit, how she on 22
September 1998, despatched the telegram, referred to by the second applicant. The
third respondent explained that the use of the word “dismissed” in that telegram,
may create the impression that the services that the service of the second applicant
were terminated, not by virtue of an automatically dismissal, but by virtue of a
decision taken by the respondents and this would be a wrong interpretation of her,
perhaps unfortunate, choice of words. The third respondent argues that in context,
and taken as a whole, with due regard to the express reference of the aforesaid
section 17(5)(a) of the Proclamation, there can be no doubt that the only basis for
the termination of her services, was the provisions of that section, and that no
decision to dismiss was taken and accordingly there is no decision which falls to
be set aside on review.
[20] The third respondent emphasises that in the letter of 2 October 1998,
dispatched to the second applicant, it is recorded that previous sick leave of the
second applicant for the period up to 28 August 1998 was not approved. The
second applicant did not query this, nor dispute the decision not to grant her that
sick leave. It is also denied by the third respondent that her department ever
received an application for leave before on 2 October 1998.
[21] The third respondent also submitted that her department erred on the side of
caution, and implemented section 17(5)(a)(i) with effect from 1 September 1998
and not 6 August 1998 as should have been the case. Hence the second applicant’s
services were terminated by operation of law in terms of section 17(5)(a)(i) of
proclamation 103 of 1994, which also stipulates that the date with effect from
which her services are so terminated is the date immediately succeeding his or her
last day of attendance at her place of duty was 6 August 1998.
[22] The third respondent submits that, insofar as the second applicant refers to
a further application for leave that was handed for sick leave to the end of 16
October 1998, no such application was ever received by the third respondent
before 2 October 1998, or received by the department in question, and the second
applicant definitely had no permission to be absent from work for the relevant
period.
applicant definitely had no permission to be absent from work for the relevant
period.
[23] It is also submitted by the third respondent, that it is the attitude of the
respondents, that the second applicant is not entitled to a “hearing” before the
provisions of section 17(5)(a)(i) of proclamation 103 of 1994 are to be
implemented. The respondents do not have a choice as to whether those provisions
are to be implemented or not, and are in terms of their constitutional and public
responsibility, obliged to implement those provisions.
[24] The one power which the respondents in this regard is spelt out by section
17(5)(b) of the Proclamation in terms whereof a possible reinstatement of the
second applicant can be considered.
[25] The respondents argue that, it is not the case for the second applicant that
the respondents are amiss with regard to their obligations (and the corresponding
right of the second applicant) under the last mentioned section, this aspect is left
open. It is also emphasised that the respondents did not make any allegation to the
effect that the second applicant absconded from work.
[26] The question is whether the “decision taken or the act performed by the
State in its capacity as employer” (section 158(1)(h) of the LRA) is reviewable
in law.
[27] It is clear from the wording of section 17(5)(a)(i) of the Proclamation 103,
that there is a deeming provision contained in this section and clearly there was no
indication on the facts that a factual, voluntary and conscious decision was made
to terminate the services of the second applicant. Her services were terminated by
operation of law. Any decision to reinstate or not to reinstate the applicant as
envisaged by section 17(1)(b) of the Proclamation, has not yet been taken.
[28] In my view, there is therefore no decision, as envisaged by section 158(1)
(h) of the LRA, to be reviewed and consequently the application must fall to be set
aside on this basis.
[29] Another reason why this court cannot entertain this application, is because
the meaning of “dismissal” in terms of the LRA, is not as limited as envisaged by
both the second applicant and the respondents. Even though the respondents do
not have a choice as to whether the provisions of section 17(5)(a)(i) of the
Proclamation 103 are to be implemented, and are and in terms of their
constitutional and public responsibility, obliged to implement the provisions, the
respondent’s role as envisaged in section 17(5)(a)(i) does not end there.
[30] The respondents do have a power in terms of section 17(5)(b) of the Public
Service Act, in terms whereof they can, consider a possible reinstatement of the
second applicant . She has not pursued this route and therefore her application is
premature. It is not the case of the second applicant that the respondents are amiss
with regard to their obligations.
[31] I have raised with the parties the question of conciliation and arbitration of
this dispute. In my view, it is still open to the second applicant to attempt to pursue
her rights in terms of section 17(1)(b) of the Proclamation. If she is unsuccessful,
her rights in terms of section 17(1)(b) of the Proclamation. If she is unsuccessful,
she may refer the dispute about her dismissal, to have the matter conciliated and
arbitrated by the CCMA. Of course she would have to be granted condonation by
the CCMA first.
[32] I have declined to interfere with any decision since no decision was taken,
and the legal position with regard to the second applicant’s employment situation
is as set out hereinafter before.
E REVELAS
Date of Hearing : 4 March 1997
Date of Judgment: 8 March 1999
For the Applicant: Advocate Hannes Haycock
Instructed by Wagener Muller Attorneys
For the Respondent: Advocate MM Oosthuizen
Instructed by the State Attorney