IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO
C467/01
1422002
In the matter between:
NELSON MBUYISELO NKOPO Applicant
and
PUBLIC HEALTH & WELFARE BARGAINING First and Further
COUNCIL & OTHERS Respondents
______________________________________________________
J U D G M E N T
______________________________________________________
LANDMAN J:
1. Mr N M Nkopo seeks to review and set aside an award of an
arbitrator which was made following an arbitration (case number
PSHS172) held under the auspices of the Public Health & Welfare
Bargaining Council.
2. The review application was postponed on the previous occasion as
the applicant had not complied with the Rules of this Court. The
record of the proceedings of the arbitration are, however, incomplete.
The indexed papers omitted a crucial affidavit but Mr Horne, who
appeared on behalf of the Department of Health, alerted me to this
and the affidavit of the arbitrator was traced.
3. Several issues were put to Mr Nkopo, an attorney with the same
surname as his client who appeared on behalf of the applicant. But
neither he nor Mr Horne were able to deal with them satisfactorily.
The principal query was whether the applicant had been dismissed
by the Department of Health and whether that dismissal was a
dismissal for the purposes of the Labour Relations Act 66 of 1995. I
might add that Attorney Nkopo did not have a full set of papers with
him during argument. In the light of the view which I take of this
matter there would be little purpose in a further postponement and
the matter was allowed to proceed.
4. The facts, stated starkly, are the following. The applicant was the
chief hospital administrator of the Umzimkulu Hospital operated by
the Department of Health. During February 1996 he implemented
an unpopular measure having the effect of discontinuing the
employment of persons engaged in terms of a special employment
creation programme. During February he was forewarned that these
persons had made threats against his life and that it would be
dangerous for him to attend his place of work. He did not go to the
hospital that day but reported to the nearest police station. He also
informed the Regional Director of the situation. The Regional
Director advised him to stay at home for a few days. Many further
developments ensued. Communications passed between the
applicant and the Department and at one stage his union and his
attorney were involved.
5. The situation was not resolved. The applicant did not attend at the
hospital because he believed that his life was in danger. Eventually
the Department of Health invoked section 17(5)(a) of the Public
Service Act of 1994 (Proclamation No. 103 of 1994). Subsection (5)
reads as follows:
"(5)(a)(i) An officer, other than a member of the services or an educator or a
member of the Agency or the Service, 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 discharged 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.
(5)(a)(ii) If such an officer assumes other employment, he or she shall be
deemed to have been discharged as aforesaid irrespective of
whether the said period has expired or not.
(5)(b) If an officer who is deemed to have been so discharged,
reports for duty any time after the expiry of the period referred to in
paragraph (a), the relevant executing authority may, on good cause
show and notwithstanding anything to the contrary contained in any
law, approve the reinstatement of that officer 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."
6. The applicant was discharged from the Public Service on 18
November 1999. The applicant, when he learnt of his discharge, did
not resort to section 17(5)(b) of the Public Service Act in order to
obtain his reinstatement in the Service. Instead he complained
about his "dismissal" and took steps which led to the Commission for
Conciliation, Mediation and Arbitration ("the CCMA"). However, the
CCMA did not have jurisdiction to arbitrate the dispute. Eventually
the dispute was processed through conciliation and referred to
arbitration before the Public Health & Welfare Bargaining Council.
7. There are no documents relating to the referral of the dispute to this
body and to arbitration. However the arbitrator notes in his award
that:
"The issue to be decided is whether the employer party fairly
dismissed Mr Nkopo in terms of substantive and procedural
fairness."
The arbitrator found that the applicant's absence from work
exceeded a period of one calendar month. He also found that the
applicant was no longer in danger and therefore, by implication, he
had no excuse for not reporting for work. The arbitrator found:
"Mr Nkopo's dismissal on 18 November 1999 is both substantive and
procedurally fair."
It is clear to me that neither the applicant nor his representative, a
union official, the Department of Health nor the arbitrator appreciated
that the applicant had not been dismissed in the sense of that
concept as used in the Labour Relations Act 66 of 1995. The
Appellate Division has held in Minister van Onderwys en Kultuur
en Andere v Louw 1995 (4) SA 383 (A) that the effect of section
72(1) of the Education Affairs Act (House of Assembly) 70 of 1998,
which is similar to section 17 of the Public Service Act, is to the effect
that the notification of the discharge in terms of that section occurs
by operation of law. The headnote accurately reflects the decision.
It reads as follows:
"The deeming provision of s 72(1) of the Education Affairs Act
(House of Assembly) 70 of 1988 (which provides that a ‘person
employed in a permanent capacity at a departmental institution and
who (a) is absent from his service for a period more than 30
consecutive days without the consent of the Head of
Education...shall, unless the Minister directs otherwise, be deemed
to have been discharged on account of misconduct...’) comes into
operation if the employee:
(i) without the consent of the Head of Education
(ii) is absent from his service for more than 30 consecutive days.
Whether these requirements have been satisfied is objectively
determinable. Should a person allege, for example that he had the
necessary consent and that the allegation is disputed, the factual
dispute is justiciable by a court. There is then no question of a review
of an administrative decision. The coming into operation of the
deeming provision is not dependent upon any decision there is no
room for reliance on the audi alteram partem rule which in its classic
formulation is applicable when an administrative and a
discretionary discretion may detrimentally affect the rights,
privileges or liberty of a person. Where, as in casu, the employee is
informed in a letter of discharge that he has been discharged in
terms of s 72(1), it is not a consequence of a discretionary decision,
but merely a notification of a result which occurred by operation of
law."
(See also Du Toit et al Labour Relations Law 3rd ed. page 338).
8. In the light of the Louw case, there was no decision and no dismissal
which could be found to be unfair. The discharge of the applicant
took place by operation of law. It was not a dismissal as
contemplated in the Labour Relations Act. The arbitrator could,
therefore, not validly award any relief, even if he was mindful to do
so, in the absence of any express agreement to this effect. The
award, therefore, must be set aside as it was premised on erroneous
assumption that the dispute related to an unfair dismissal. As
neither party appreciated this point no costs should be awarded.
9. In the premises the award is reviewed and set aside. There will be
no order as to costs.
Signed and dated at BRAAMFONTEIN this 1st day of March 2002.
____________
AA Landman
Judge of the Labour Court of South Africa