IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
REPORTABLE
CASE NO D218/03
DATE HEARD: 2003/08/08
DATE DELIVERED:
2003/08/18
In the matter between:
HOSPERSA First Applicant
MOULTRIE Second Applicant
and
MEC FOR HEALTH Respondents
JUDGMENT DELIVERED BY THE HONOURABLE MS JUSTICE
PILLAY
ON 18 AUGUST 2003
ON BEHALF OF APPLICANTS: MR M PILLEMER
SC
Instructed by Llewellyn Cain
ON BEHALF OF RESPONDENT: MR J N M POSWA SC
Instructed by State
Attorney, Durban.
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
JUDGMENT 18 AUGUST 2003
PILLAY D, J
[1] This application turns on the interpretation and application of
section 17(5)(a)(i) of the Public Service Act, Proclamation 103
of 1994 (“the PSA”). The section provides:
"(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 at any time after the
expiry of the period referred to in paragraph (a),
the relevant executing authority may, on good
cause shown 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."
[2] The facts were: there was a collective agreement adopted by
Resolution 8 of 1998 by the Public Service Co-ordinating
Bargaining Council ("the Resolution 8 agreement"). It enabled
the conclusion of further agreements for the special
secondment of officials to the trade union in terms of a
secondment agreement. The secondment agreement was
tripartite between the trade union, employer and the official.
The trade union undertook to reimburse the employer for the
remuneration it continued to pay during the period of
secondment of the official. The official undertook to render
services to the trade union. The employer guaranteed certain
protections to the official during the period of secondment.
The second applicant had been seconded to the first applicant
for three terms of one year from 1 July 1999.
[3] A dispute about whether the second respondent had a duty to
comply with a request for a secondment was referred for
arbitration on 25 January 2001. It was decided in favour of the
applicants. Although that award is challenged under review, it
remains in force until it is set aside.
[4] Reinforced by the award, the first applicant requested on
30 May 2001 the secondment of the second applicant for the
rest of the term of his office as president of the first applicant.
[5] Secondment might previously have been made for periods of
one year. However, as discussed below, a request for a longer
period is not prohibited by the Resolution 8 agreement. The
second applicant nevertheless remained seconded to the first
applicant from 1 July 2001.
[6] In July 2002 the secondment agreement was further extended.
There is a dispute about the duration of this extension.
[7] That brought into question the status of the second applicant's
secondment. The applicants contended that they had
acquired vested rights which could not be affected by the
termination of the Resolution 8 agreement. They maintained
that the secondment agreement endured until 2004 when the
second applicant's term of office came to an end.
[8] The respondents maintained that the secondment ceased
once the Resolution 8 agreement was terminated on 31
December 2002. Furthermore, the applicants did not derive
any vested rights independently of the Resolution 8
agreement, so it was submitted.
[9] The second respondent informed the applicants that the
second applicant was to report to work on 2 January 2003. On
2 January 2003 first applicant wrote to the second respondent,
requesting that they discuss the matter. The response on
behalf of the second respondent was, inter alia , to point out
that the second applicant had not reported for duty that day
and that he, the second respondent refused to engage in any
discussions with the applicants.
[10] The second applicant presented himself for work on 6 January
2003 and produced a medical certificate to explain his
absence for the first two working days of the year.
[11] By letter dated 16 January 2003 the applicants informed the
second respondent, inter alia, that they regarded the demand
that the second applicant return to work to be a direct
violation of the terms and conditions of the collective
agreement. The second applicant presented himself to work
pursuant to the second respondent's demand, without
prejudice to his rights and with a reservation of all rights
vested in him. This was done in the hope that a conciliatory
attitude would prevail and litigation would be avoided. If the
matter was not resolved amicably by 20 January 2003 the first
applicant gave notice that the second applicant would, with
effect from 21 January 2003, continue his secondment to the
first applicant for the remainder of his presidency. The second
applicant stopped reporting for work with the respondents
from 21 January 2003.
[12] On 12 March 2003 the second applicant was served with a
letter in the following terms:
"Abscondment : Yourself
You have absented yourself from duty without authority with effect from
21 January 2003. In terms of section 17(5)(a) of the Public Service Act, 1994
you are deemed to have been discharged on account of abscondment.
However, you have an opportunity to make representations as to why your
dismissal cannot be confirmed. In this regard you are requested to present
yourself at the inquiry which is scheduled as follows …"
[13] On 28 March 2003 this application was launched. A rule nisi
was obtained by consent on 1 April 2003, inter alia , for a
declarator and to interdict the respondents from taking
disciplinary steps against the second applicant by reason of
him tendering his services on the basis that he had been
seconded to the first applicant pending the determination of
an arbitration on the issue as to whether or not the
secondment was valid.
[14] The parties referred a dispute to arbitration to determine what
effect the withdrawal of the Resolution 8 agreement had on
the balance of the period of secondment of the second
applicant, i.e. the period after 31 December 2002.
[15] Three arbitrators found against the applicants. The applicants
had agreed that the second applicant would return to his
duties with respondent if the arbitrators ruled against them.
[16] The second applicant tendered his services on 10 July 2003.
However, the respondents insisted on proceeding in terms of
section 17(5)(a)(i) of the PSA.
[17] The parties had obviously misunderstood each other's
intentions when the applicants agreed to tender the second
applicant's services after the arbitration. It is quite
improbable that the second applicant would have agreed to
submit himself to the completion of the section 17(5)
procedure, for that would have meant acceptance by him that
he had already been discharged. The very purpose of this
application is to prevent that eventuality.
[18] The second applicant accordingly withdrew his tender and
sought to confirm the rule in this application. Mr Pillemer
submitted that the second applicant did not absent himself
from duty within the meaning of section 17(5)(a)(i) of the PSA.
Accordingly, the purported discharge of the second applicant
for abscondment is invalid and should be set aside. The legal
position brought about by the section, he further submitted, is
triggered by the objective factual situation, resulting in the
termination of the contract of employment by operation of
law. It is not dismissal. ( The Public Service Association of
South Africa v Premier of Gauteng (1999) 20 ILJ 2106 (LC).)
Furthermore, he contended that the purpose of the section is
to cater for situations where employees abscond or absent
themselves from work without explanation. It is one of the
situations described as "a crisis zone" in which a hearing can
be dispensed with. (E Cameron, The right to a hearing before
dismissal, problems and puzzles (1988) ILJ 147; Dunywa
Thembeka Patricia v the Department of Economic Affairs,
Environment and Tourism, Godangwana Commissioner Robert
Midgley, case No EC 8577 dated 9 September 1999.)
[19] Mr Poswa for the respondent submitted that the Court has no
jurisdiction to deal with administrative processes between the
respondents and their employees. As section 17(5)(a)
resulted in the termination of services by operation of law,
there is no "decision" to review. If the respondents abused
their administrative powers, he acknowledged employees
would be at liberty to approach the Court provided they
exhausted all other preliminary remedies. The outcome of the
section 17(5) process, he said, was being pre-empted. If the
second applicant remained aggrieved after a hearing in terms
of section 17(5)(b) he could then have recourse to the Court.
[20] I agree with Mr Pillemer that section 17(5)(a) calls for a
purposive interpretation to give effect to the constitutional
objective of the right to fair labour practices. In my view, the
jurisdictional prerequisites for invoking the provisions of
section 17(5)(a) are the following:
(1) The person concerned must be an officer or employee,
as defined. The section does not apply to a member of
the permanent force of the National Defence Force, the
South African Police Services and the Department of
Correctional Services, an educator, a member of the
intelligence agency or the intelligence service.
(2) The employee must absent herself from her official duties.
(3) Such absence must be without permission.
(4) Such absence must be for more than one calendar month.
(5) The circumstances must be such that the Disciplinary Code
and Procedure, Resolution 2 of 1999 and Annexure A (“The Code”)
thereto have no application.
[21] Each of the jurisdictional requirements will now be discussed.
The second applicant is an officer in the Public Service. The
first requirement is accordingly met. The second, third and
fourth requirements will be discussed together. It is common
cause that the applicant was not at Natalia, where he was
posted by the respondents. It is also common cause that he
was not performing duties for the respondents during the
period in issue, i.e. January 2003 to date.
[22] Mr Pillemer submitted that he was nevertheless performing his
official duties, i.e. his duties as a union official in furtherance
of the first applicant's business. This was so, he submitted,
because the secondment agreement endured beyond the
cancellation of the Resolution 8 agreement. He referred to
various analogous situations where rights remained
unaffected by changes to the enabling instrument. For
example, an amendment to a statute, retrospectively or
otherwise, whilst a matter is pending did not affect the rights
of parties which, in the absence of a contrary intention, must
be decided in accordance with the statutory provisions in force
at the time the action was instituted. ( Bell v Voorsitter van
Rasklassifikasieraad 1968 (2) SA 678 (A) at 683E.) Similarly,
he argued, if authority under a contract falls away whilst the
contract still had a period to run and a party loses legal
capacity, the contract remains enforceable against that
party's estate.
[23] In my view, it does not follow that on the cancellation of a
principal agreement such as the Resolution 8 agreement, that
other agreements arising therefrom would automatically be
terminated. Much would depend, inter alia, on the terms and
the nature of the agreements, whether they can exist
independently of each other and what the intention of the
parties were when concluding and cancelling them.
[24] Clause 4(c) of the Resolution 8 agreement lists as one of the
obligations of the employer the conclusion of an agreement
with the official to be seconded to regulate certain matters,
such as her grade, the form of her performance assessment to
apply during secondment, promotion and her duties. The
purpose of such an agreement is to protect the official during
the period of secondment.
[25] The trade union, on the other hand, had to minimise as far as
possible the amount of special secondments requested. There
was no other qualification on what the request should contain,
or how or when it should be made. In terms of clause 7(a) of
Resolution 8, the trade union has to make a request for special
secondment.
[26] In this case, the respondents dispute that there was a formal
agreement to second the second applicant to the first
applicant. It is common cause that there is no written contract
to that effect. An agreement, nevertheless, came about. It
did not come about merely on the first applicant notifying the
respondents that the second applicant was seconded. The
second respondent had to consent first before the secondment
agreement could take effect. The second respondent, either
expressly or tacitly, granted the first applicant's request for
special secondment of the second applicant from July 2002 to
2004, when his term of office would come to an end. This
request was made in writing in the form of a letter.
[27] It is common cause that the applicant was seconded from July
2002 to December 2002 and rendered services to the first
applicant without protest from the respondents.
[28] If the second respondent did not intend to grant the
secondment at all or for the entire duration of his term of
office, it ought to have refused the request or granted it for
such period as it wanted to.
[29] I agree with Mr Pillemer that the secondment agreement was
a tripartite agreement between the first applicant, second
applicant and the respondents. To the extent that it conferred
protections on the second applicant, it is arguably a species of
a stipulatio alteri. Unlike the Resolution 8 agreement, it was
not a collective agreement, as defined in the Labour Relations
Act 66 of 1995. Furthermore, it was an agreement for a fixed
term, whereas the Resolution 8 agreement was for an
indefinite term.
[30] As a tripartite agreement for a fixed term, the respondents
could not unilaterally terminate it. It conferred rights and
protections in favour of the first and second applicants. In
turn, the first applicant was obliged to reimburse the
respondents for the cost of the second applicant's
remuneration during the secondment. These rights and
obligations could endure despite the demise of the Resolution
8 agreement. For example, the rights and obligations of
parties to a retrenchment agreement are not extinguished if
the currency of the recognition agreement which enabled the
retrenchment agreement is terminated. Nor is the
retrenchment agreement terminated if the employer is
liquidated. The agreement will be enforceable against the
liquidator. The employer would still be obliged to, for
example, inform the trade union if vacancies arise.
[31] Finding, as I do, that the secondment agreement endured
after the Resolution 8 agreement was terminated, it follows
that the first applicant had a right to the services of the
second applicant. Conversely, the second applicant's
obligation was to perform official duties for the first applicant.
The respondents have not placed in issue that he did not
perform duties for the first applicant.
[32] I accordingly conclude that the second applicant did not
absent himself from his official duties for more than one
calendar month. Furthermore, I find that the second
respondent's purported withdrawal of its permission for such
secondment to be unlawful and in breach of the secondment
agreement.
[33] The fifth requirement relating to the non applicability of the
Code is elevated to a jurisdictional prerequisite, otherwise
section 17(5) cannot co-exist with the employee's rights to fair
labour practices and administrative justice.
[34] There are two mechanisms available to the respondents if
employees absent themselves from work without permission.
The first is to charge them for misconduct for having breached
the Code. Schedule A of the Code includes as an offence:
"Absence or repeatedly absenting him/herself from
work without reason or permission."
The employees remain employed whilst the charges are
investigated and tried. If the disciplinary inquiry determines
that they should be dismissed, respondents would bear the
onus of proving the fairness of the dismissal. Absence from
duty without permission is also not usually regarded as a
serious offence warranting dismissal. To invoke this
procedure, the whereabouts of the employees must be known
to the employer in order to serve a charge a sheet and secure
their attendance at the disciplinary inquiry.
[35] The second mechanism is in terms of section 17(5)(a).
Employees who absent themselves without permission for
more than one calendar month shall be deemed to have been
discharged on account of misconduct. The words "shall be
deemed" implies that the provisions are automatically invoked
by operation of law.
[36] Because the employees are discharged, they are deprived of
all the rights and protections afforded by the unfair dismissal
laws. As a discharge is deemed to be on account of
misconduct, the employees are condemned before they have
been given a hearing. There may be reasons other than
misconduct for their absence. After the employees have been
deemed to be so discharged, and provided they, firstly, report
for duty and, secondly, they show good cause, their
reinstatement into their former or other positions may be
approved subject to conditions. (Section 17(5)(b).) When
exercising their right to a hearing in terms of section 17(5)(b)
the employees bear the onus of showing good cause. Section
17(5)(a) not merely restricts, but excludes the employees'
right to a fair hearing before being found guilty and dismissed.
It deprives the employees of challenging the termination of
their services through conciliation and arbitration. It
automatically deprives employees of their employment.
[37] All in all, section 17(5) is a draconian procedure. It must be
used sparingly and only when the Code cannot be invoked
when the employer has no other alternative. That would be so,
for example, when the respondents are unaware of the
whereabouts of the employees and cannot contact them. Or, if
the employees make it quite clear that they have no intention
of returning to work. The Code is a less restrictive means of
achieving the same objective of enquiring into and remedying
an employee’s absence from work. It enables employees to
invoke the rights to fair labour practice and administrative
justice. All the jurisdictional prerequisites for proceeding in
terms of section 17(5)(a)(i) must be present before it is
invoked.
[38] The second respondent knew the reason for the second
applicant's absence from his duties with the respondents. It
was in contact with the applicants to process the arbitration
and this application.
[39] Even if I am wrong in finding that the second applicant had an
obligation to render services to the first applicant after the
Resolution 8 agreement was terminated, there was, at the
very least, a bona fide dispute about the status of the
secondment agreement.
[40] There is no reason why the Code could not have been applied
to the second applicant if the respondents believed in good
faith that the second applicant's absence amounted to
misconduct.
[41] The second applicant's uncertainty about his position is
evidenced by his tender of services on 6 January 2003 with a
medical certificate to explain his absence. Furthermore, the
first applicant's offices were closed at the time. The
applicant's further explanation for not performing duties for
the respondents was the existence of the dispute. He
submitted to arbitration, which resolved that dispute.
[42] The respondents cannot reasonably infer, in those
circumstances, that the second applicant committed
misconduct. His absence from the respondents' workplace
since 10 July 2003 has been occasioned by the respondents'
insistence on applying section 17(5). He has had the
protection of the Court against the application of section 17(5)
since 1 April 2003.
[43] The respondents failed to comply with the fifth jurisdictional
prerequisite. The second applicant cannot be deemed to have
been discharged.
[44] These are the reasons for the order I granted on 8 August
2003 in terms of paragraphs (a), (b) and (d) of Notice of
Motion, including the costs of two counsel.
PILLAY D, J
13 October 2003