REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
In the matter between REPORTABLE
Case Number: JR 563/03
LESIBA EPHRAIM SEEMA APPLICANT
And
GENERAL PUBLIC SERVICES SECTORIAL 1st RESPONDENT
BARGAINING COUNCIL
COMMISSIONER MICHAEL MASHEGO 2nd RESPONDENT
DEPARTMENT OF JUSTICE 3rd RESPONDENT
JUDGEMENT
LEEUW A.J
INTRODUCTION
(1) This is an application in terms of Section 145 of the Labour
Relations Act No 66 of 1995 (The Labour Relations Act) brought
by the applicant for an order in the following terms:
“ 1. That the arbitration award dated 28 February 2003 under case PSGA 3584 be
reviewed and set aside and be replaced by the following terms:
1.1 That the dismissal is both substantively and procedurally unfair.
1.2 That the applicant be reinstated and compensated in terms of section 194(2)
of the Labour Relations Act No 66 of 1995, as amended.
1.3 That the costs of this application be paid by the Respondent
1.4 Further and /or alternative relief”.
Background information
(2) It is common cause that the Applicant was employed by the Third
Respondent as a Senior Court Interpreter at the Magistrate’s Court
Mokerong in the Limpopo Province.
(3) He was charged and convicted of two (2) counts of theft, two
counts of obstruction and/or defeating the ends of Justice and
Contempt of Court and sentenced to twenty four (24) twenty four
months, six (6) months and ninety (90) days imprisonment
respectively. He was incarcerated from May 2001 to August 2002
which is a period of 1(one) year and 3(three) months.
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(4) The Third Respondent terminated the applicant’s services with
effect from 26 th January 2001 per letter dated 9 th July 2002, the
reason being that he was guilty of misconduct in terms of section
17(2)(e) of the Public Service Act 104 of 1994(“Public Service
Act”).
(5) Subsequent to the abovementioned letter, the third Respondent
caused to be written a letter dated 22 nd July 2002 to the Applicant
wherein cognisance was taken of the reason for dismissal. In this
letter, the Third Respondent notified Applicant that he was
discharged from public service with effect from the 26 th January
2001, the reason being that he was not “gainfully employed”. The
same section 17(2) (e) of the Public Services Act was repeated in
this letter.
(6) The Applicant referred the matter to the General Public Service
Sectoral Bargaining Council (“The Bargaining Council”) where it
was heard on the 18 th February 2003. The Commissioner made a
finding that the Applicant’s dismissal was substantively fair but
procedurally unfair and ordered no compensation.
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Submissions
(7) The Applicant’s grounds for review can be summarised as
follows (as they appear in his founding affidavit): The dismissal
was procedurally and substantively unfair because
i) He was not given an opportunity to explain his absence from
work as well as present mitigating factors in his favour;
ii) He has appealed against the conviction and sentence to the High
Court and therefore ought not to have been dismissed pending
the finalisation of that appeal.
iii) The fact that he was in prison on its own cannot be a ground for
dismissal, and
(iv) that the employer condoned his absence from work in that it took almost
one and half years for the employer to dismiss him despite his
incarceration and can therefore not raise same as a ground for dismissal.
(8) These grounds were not pursued by the Applicant’s attorney in
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his written and oral submissions save to state that the only basis
on which Applicant could be dismissed from employment,
would be by virtue of his incapacity, misconduct or employer’s
operational requirements. Furthermore, that the applicant’s
dismissal was not justifiable in terms of the provisions of section
188(1) of the Labour Relations Act.
(9) On behalf of the Third Respondent, Mr Mogatle in his Answering Affidavit
alleges that the Third Respondent erroneously referred to section 17(2) (e)
of the Public Service Act and that the same mistake was repeated in the
letter dated 22 July 2002, which according to him was a typographical
error; he intimated that the correct section ought to have been section 17(2)
(c) of the Public Service Act.
(10) It was Mr Mogatle’s testimony at the Arbitration hearing that the
Applicant was not dismissed because of misconduct but that his
services were terminated because he was not “gainfully
employed”. He further stated that the Applicant was as a result
thereof in breach of his employment contract.
He referred to the provisions of section 30(a) of the Public
Service Act which provide that “every officer and employee
shall place the whole of his or her time at the disposal of the
State”.
(11) It was Mr Mogatle’s evidence that it was not necessary to
conduct a disciplinary enquiry against the applicant since he was
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not charged for misconduct. The applicant committed a breach of
contract which was accepted by the employer. For failure to
conduct a predismissal enquiry, Third Respondent relies on the
provisions of Schedule 8 under Section 4(4) of the Labour
Relations Act which provide: “that in exceptional
circumstances, if the employer cannot reasonably be expected
to comply with the guidelines, the employer may dispense
with predismissal procedure” . It is further submitted that the
hearing was unnecessary because the Applicant could not have
been considered for reinstatement or reemployment as a result
of his incarceration.
(12) There is no counter review by the Third Respondent against the
Second Respondent’s ruling that the Applicant’s dismissal was
procedurally unfair, but it is submitted on behalf of the Third
Respondent that the dismissal was both substantively and
procedurally fair. I have already alluded to the Third
Respondent’s submissions in this regard.
The Law:
(13) The Third Respondent submits that the Applicant was dismissed
because he was unable to render his services as an interpreter.
Section 17(2) (c) of the Public Service Act provides that “Every
officer, other than a member of the services or an educator or a
member of the Agency or the Service, may be discharged from
the public service.
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(a) ………..
(b) ………..
(c) If, for reasons other than his or her own unfitness or incapacity, his or her
discharge will promote efficiency or economy in the department or office in
which he or she is employed, or will otherwise be in the interest of the public
service;
(14) Furthermore, the Public Service Act provides in Section 17(5)(a)(i)
that “An officer, other than ….., 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”.
(15) I must here remark that neither the Applicant nor the Second and
Third Respondent made mention of this provision and no reliance
was placed on this section by the Third Respondent when the
Applicant was discharged from employment. The effect of Section
17(5) (a) (i) is that the applicant’s employment was terminated by
operation of law.
(16) Our Courts have applied the abovementioned provision and similar
provisions differently and it will be necessary to refer to but a few:
(a) In the case of Minister Van Onderwys en Kultuur en Andere
v Louw 1995(4)SA 838 (A) at 388GI the court, in interpreting Section
72(1) of the then Education Affairs Act (House of Assembly)70 of 1988,
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a provision similar to Section 17(5)(a)(i) of the Public Service Act, held
that the coming into operation of the deeming provision is not dependant
upon any decision, and that the audi alteram partem rule is not
applicable; that an employer merely notifies an employee about his
discharge which occurred by operation of law. This decision was
followed and applied amongst others in the cases of Public Servants
Association of SA and Another v Premier Gauteng and Others (1999)
20 ILJ 2106(LC) , Nkopo v Public Health and Welfare Bargaining
Council & Others (2002) 23 ILJ 520 (LC).
(17) In the latter case, Landman J, held that there was no dismissal
which could be found to be unfair as contemplated in the Labour
Relations Act. Neither party in this case, like in the present, had
taken this point on review.
The same view was followed in the case MEC, Public Works,
Northern Province v CCMA & Others (2003) 10 BLLR 1027
(LC) where the point was not taken by either party to the dispute as
well as the Commissioner. The matter was referred back to the
CCMA.
(18) Freud A.J in the MEC for Public Works Northern Province v
CCMA supra held the view that the decision by the employer in
exercising his discretion not to reinstate in terms of section 17(5)
(b)(ii) has the effect that the contract of employment remains
terminated by law and not terminated by the employer. Compare
also South African Broadcasting Corporation v CCMA &
Others (2001) 4 BLLR 449 (LC) at 454 H , where Sutherland AJ
held that “… it is not the act of desertion which terminates the
contract of employment, but the act of the employer who elects to
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exercise his right to terminate the contract in the face of that breach
(See Stewart Wrightson (Pty) Limited v Thorpe 1977 (2) SA
943 (SCA) at 953 E)”. The court held that the Commissioner was
correct in ruling that the termination of employment was dismissal.
This seems to be the submission by Third Respondent’s Counsel in
this matter.
(19) The case of Minister van Onderwys en Kultuur en Ander v
Louw supra was decided prior to the enactment of the Labour
Relations Act although the majority of cases which applied this
case also took the view that dismissal by operation of law is not
dismissal in accordance with Section 186 of the Labour Relations
Act.
See also Ntabeni v MEC for Education, Eastern Cape (2001)
ILJ 2619(TK) & Maidi v MEC for Department of Education
& Others (2003) 24 ILJ 1552(LC).
(20) Section 17(1) (a) of the Public Service Act provides that “Subject
to the provisions of paragraph (b), the power to discharge an
officer or employee shall vest in the relevant executing authority
…. and the said power shall be exercised with due observance of
the applicable provisions of the Labour Relations Act, 1995(Act
No 66 of 1995)”. I am of the view that since section 17(5) (a) (i)
of the Public Service Act, provides that a person who has been
discharged by operation of law shall be deemed to have been
discharged from Public Service on account of misconduct, the
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employer must apply the procedures provided for in the Labour
Relations Act in dismissals based on misconduct.
(21) The other view held by our courts is that Section 17(5) (a)
deprives employees of their right to challenge their dismissals.
Section 17(5)(b),provides that : “If an officer or employee who is
deemed to have been 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 case
the period of his absence 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”.
(22) This provision was interpreted by the Court as granting the
employee an opportunity to present his case to the employer and
give reasons as to why he or she should be reinstated after his
persistent absence from work. See South African Broadcasting
Corporation v CCMA & Others supra and Hospersa &
Another v MEC for Health (2003) 12 BLLR 1242 (LC) . I
agree with this interpretation: that though discharged from
employment by operation of the deeming provision, the
employee still has the opportunity to present his or her case to the
employer for the purpose of determining whether he or she can
be reinstated, on good cause shown. Compare also Phenithi v
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Minister of Education & Others (2005) 6 BLLR 614 (O) at
621 G.
Was the Applicant’s dismissal Substantively and Procedurally
fair?
(23) In finding that the Applicant’s dismissal was procedurally unfair,
the Commissioner found that the Third Respondent did not place
any exceptional circumstances before him that would justify
dispensing with the predismissal procedure provided for in
section 17(5)(a)(i) of the Public Service Act read with Schedule 8
of the Labour Relations Act supra.
(24) He held the view that the Third Respondent was aware of the
whereabouts of the Applicant who was in prison and could be
accessed in order to afford him the opportunity to present his case
in a disciplinary enquiry. I agree with the view held by the
Commissioner and find that he did not misdirect himself in coming
to this finding.
(25) The Commissioner held that “the principal obligation of an
employee under the contract of service is to put their (sic)
personal services at the disposal of the employer…The
employer cannot be expected to wait for an employee who is
languishing in a state penitentiary…...
The inquiry is not whether or not he is guilty but whether as a
result of his incarceration after having been found guilty by a
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competent court, he could render services or not ….I am
therefore convinced that the Employer had a valid reason to
terminate the contract of Employment”.
(26) I find nothing wrong in the Ruling by the Commissioner that the
Applicant’s dismissal was substantively fair because the applicant
was not available to render services to the employer by virtue of
the crimes he allegedly committed and for which he was convicted
and sentenced in a competent Court of Law. After the expiry of
the one month period, the applicant was deemed to have been
discharged albeit not on account of contravention of Section 17(2)
(c) but on account of Section 17(2) (e) of the Public Service Act.
(27) At this stage, the question of breach of contract or dismissal in
accordance with Section17 (2) (c) of the Public Service Act is not
of relevance because substantively, the discharge or dismissal was
by operation of law.
(28) The applicant chose to rely on Section 17(2)(c) of the Public Service
Act in dismissing the Applicant from employment, instead of
relying on the deeming provisions of Section 17(5) (a) (i) of the
Public Service Act. Mere absence from work is not conclusive
evidence that the Applicant did not have the intention to return;
applicant ought to have been summoned from prison and
adequately informed about the consequence of his continued
absence from work. See Phenithi v Minister of Education &
Others supra.
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(29) The deeming provision in Section 17(5)(a)(i) directs that in the
circumstances where the applicant was absent for a period of one
month, he shall be deemed to have been “dismissed on account of
misconduct”(Section 17(2)(c)).The third Respondent was correct in
referring to Section 17(2)(c) in the dismissal letter but failed to
follow the procedure prescribed by the Labour Relations Act
applicable when an employee is dismissed on account of
misconduct (See Schedule 8 Code of Good Conduct – Section 3
and 4 thereof).
Conclusion
(30) I am of the view that section 17(5) (a) (i) must be read with Section
17(2) (e) and Section 17 (1) (a) of the Public Service Act. I hold
the view that the dismissal was substantively fair in view of the
provisions of Section 17(5) (a) (i) read with Section 17(2) (e) of the
Public Service Act because the dismissal was by operation of law.
(31) With regard to the Procedural aspect of the dismissal I am of the
view that such dismissal was unfair in view of Third Respondent’s
failure to afford the Applicant the opportunity to present his case
and motivate his reinstatement in accordance with the provisions of
Section 17(5) (b) read with Section 4 of Schedule 8 of the Labour
Relations Act (Code of Good Practice). In this case, the Third
Respondent informed the Applicant that he was dismissed but
omitted to inform him of the provisions of Section 17(5) (a) (i) and
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(b) of the Public Service Act. This provision is not peremptory and
it would seem it is upon the Applicant to act in accordance with
this section. Compare Phenithi v Minister of Education &
Others supra.
(32) The Commissioner decided not to award any compensation in this
matter, although no reasons have been furnished for such election.
The Applicant seeks an order for reinstatement as well as
compensation in terms of Section 194(2) of the Labour Relations
Act. In view of the legal interpretation alluded to above, I am of the
view that the Applicant was dismissed by operation of law and thus
may be entitled to whatever monetary benefit if any, if he succeeds
after having invoked the provisions of section 17(5)(b) of the
Public Service Act.
(33) In view of the fact that neither the Applicant nor the Third
Respondent had taken the points raised with regard to the
provisions of section 17(5) of the Public Service Act, and which
issues were pertinent for the appropriate adjudication of this
matter, I will not make a cost order against either party.
34) The arbitration award dated 28 th February 2003 is hereby
reviewed and set aside and the following order is substituted
therefor:
(a) The dispute is referred back to the First Respondent for
arbitration de novo before a Commissioner other than the
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Second Respondent.
(b) There is no order as to costs.
M M LEEUW
ACTING JUDGE OF THE LABOUR COURT
Date of Hearing : 13 MAY 2005
Applicant’s Counsel :
Instructing Attorneys : MOHLABA MOSHOANA
Respondent’s Counsel : H. KOOVERSTE
Instructing Attorneys : STATE ATTORNEY
Date of Judgement : 12 August 2005
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