IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN REPORTABLE
Case No : D547/2003
Date Heard: 02/09/2005
In the matter between
MEC FOR EDUCATION & CULTURE APPLICANT
and
N B MABIKA 1ST
RESPONDENT
D N DUBAZANA 2ND RESPONDENT
NATU 3RD RESPONDENT
S T BALKARAN 4TH RESPONDENT
EDUCATION LABOUR RELATIONS COUNCIL 5TH RESPONDENT
JUDGMENT
GUSH AJ
1. The applicant applied to review and have set aside the fourth
respondents’ award that the dismissal of the first and second
respondents was procedurally unfair; constituted an unfair dismissal; and
an order the first and second respondents.
2. The first and second respondents were both educators permanently
employed by the Applicant and stationed at the Magqana High School.
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3. The first and second respondents absented themselves from work from
the 12 th June 2002 until the 11 th November 2002. On that date they
were advised by the Applicant that by virtue of the fact that they had
been absent from work without permission for a period exceeding 14
consecutive days, in accordance with the provisions of Section 14(1)(a)
of the Educators Act 76 of 1998 they were deemed to have been
discharged from the employ of the Applicant.
4. The first and second respondents referred a dispute concerning their
“dismissal” to the fifth respondent claiming that they had been unfairly
dismissed by the Applicant on the 11 th November 2002. The reasons
given by the first and second respondents as to why they believed their
dismissal to be unfair referred to both procedural and substantive
unfairness. Procedurally the first and second respondents complained
that the Applicant had not conducted a hearing; that they did not know
what the nature of their “offence” was; and that no prior notice had been
given. Substantively, they averred that the unfairness was due to the fact
that they didn’t know what the reason for their dismissal was.
5. This was the dispute that the fourth respondent arbitrated.
6. Section 14(1) of the Employment of Educators Act 76 of 1998, (the Act)
provides:
14. Certain educators deemed to be discharged
(1) An educator appointed in a permanent capacity who –
a) is absent from work for a period exceeding 14
consecutive days without permission of the
employer;
b) ………..
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c) ………..
d) ………..
shall, unless the employer directs otherwise, be deemed to
have been discharged from service on account of
misconduct, ……..
7. The fourth Respondent found that as a matter of fact the first and second
respondents had been absent without permission for the entire period
12th June 2002 to 11 November 2002.
8. It is not necessary for the purposes of this review to consider the
circumstances surrounding the reasons for the 1 st and 2 nd Respondents
absence from their place of work. The finding of the 4 th Respondent that
the 1 st and 2 nd Respondents absence was without permission was not
challenged and I have no reason to question this finding.
9. For the reasons that are set out below the only evidence which may be
relevant to this review was the evidence surrounding what was referred
to at the arbitration as the “ultimatum”.
10. The evidence led at the arbitration established that the principal of the
High School where the first and second respondents were stationed had
on the advice of the Schools’ Governing Body and an employee of the
applicant written to the first and second respondents on the 6 th August
calling on them to return to work by the 12 th August 2002 failing which
they were to be charged with absconding.
11. It was common cause that the 1 st and 2 nd Respondents did not report to
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work on the 12 th August 2002 as required. There was some dispute
about whether or not the first and second respondents received this
letter. I accept the fourth respondents’ finding that they did not receive
the letter which was referred to as the “ultimatum”.
12. Whilst counsel for the first, second and third respondents argued during
the review that the applicants decision to write to the first and second
respondents amounted to the “employer directing otherwise” as provided
for in section 14(1) of the Act, this point was not argued before the fourth
respondent.
13. The fourth respondent found expressly that it was not necessary to
consider whether or not the applicant was required to issue an ultimatum.
The fourth respondent considered the evidence and found that the letter
of 12 th August 2002 did not reach the first and second respondents and
proceeded to examine, in the light of this, whether the applicant had
acted “unprocedurally in terminating the employment of the applicants
without affording them a hearing”
14. The fourth respondent concluded that the applicant was obliged to afford
the first and second respondents a fair hearing prior to their dismissal.
The fourth respondent further states that in the law of contract the act of
desertion constitutes a breach of the contract which does not terminate
the contract, and that the employer is required to elect to accept the
breach in order to terminate the contract. At no stage did the fourth
respondent consider the effect of the deeming provision in section 14(1)
of the Act and whether the ultimatum was issued in terms of that section
as constituting compliance with the proviso or whether it was evidence of
the Applicant exercising its discretion.
15. The fourth respondent found that the failure of the applicant to afford the
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first and second respondents a hearing rendered the dismissal
procedurally unfair.
16. What was ignored by the parties at the arbitration was the nature, effect
and impact of the letter addressed to the first and second respondents on
the 11 th November 2002 by the Applicant and the effect of the provisions
of section 14(1)(a) of the Act. In this letter the applicant stated:
“The principal’s letter dated 06/08/2002 has reference.
The letter referred to above was calling upon you to report at your
school not later than 12 th August 2002, but you did not respond.
The Department now confirms that you have been absent from
work for a period exceeding 14 consecutive days without the
permission of the employer. You are deemed to have been
discharged from service on account of misconduct in terms of
Section 14(1)(a) of the Employment of Educators Act, 76 of 1998
with close of duty on 28/06/2002. Any overpayment thus far will
be recovered from your pension benefits.
Kindly note that you have a right to make representation if you are
not satisfied with the decision of the Department, to show cause
why the Department should reinstate you should you later return
to work (place of employment)”
17. This letter simply advised the first and second respondents that they had
been discharged for the reason that they had been absent without
permission for a period in excess of 14 days, as provided for in the
deeming provision in section 14(1)(a) of the Act, and offered the first and
second respondents an opportunity to make representations as to why
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they should be reinstated.
18. There a number of cases which have considered the effect of section
14(1)(a) of the Act and other similar deeming provisions in legislation
governing employees in the public service. It has been accepted by the
courts that the deeming provision brings the employment contract to an
end by operation of law and does not constitute a dismissal.
See:
NKOPO v Public Health & Welfare Bargaining Council & Others
(2002) 23 ILJ 520 (LC)
Public Servants Association of SA & Another v Premier of Gauteng & Others
(1999) 20 ILJ 2106 (LC)
YANTA v Minister of Education & Culture KwaZulu Natal & Another 1992 (3) SA
54 (NPD)
19. In Minister van Onderwysers en Kulture en Andere v Louw 1995 (4) SA
383 (AA) the court held that deeming provisions takes effect if the
employee is absent without permission for the specified number of
consecutive days where the employer has not directed otherwise. [at
p388 G]
“Trouens, die al of nie inwerkingtreding van die
beskouingsbepaling is nie van enige besluit afhanklik nie. Daar is
dus geen ruimte nie vir ‘n beroep op die audire ël wat in sy
klassieke formulering van toepassing is wanneer ‘n
administratiewe – en diskresion êre – beslissing die regte,
voorregte of vryheid van ‘n persoon nadelig kan raak.”
20. The court considered, but did not decide, whether the employer could
“direct otherwise” after the expiry of the legislated period of unauthorised
absence. The wording of the section suggests that the deeming provision
takes effect after the requisite period of time has elapsed if the
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employee’s absence is without permission. It does not depend upon the
exercise of a discretion nor does it require a decision by the employer.
Accordingly, once the period has elapsed the discharge of the employee
is deemed to have taken place. Section 14(2) of the Act provides the
employer with the opportunity to reconsider the effects of section 14(1)(a)
on the employee and specifically address the absence which lead to the
discharge of the employee.
21. I am therefore of the view that the employer is only entitled to exercise
the discretion to direct otherwise before the deeming provision has taken
effect particularly in the light of section 14(2) which expressly provides for
the protection of employees rights. Section 14(1)(a) takes effect by
operation of law. This is particularly so if consideration is had to the facts
required to exist in order that section 14(1)(a) apply viz absence without
permission for a continuous period of 14 days. Once this transpires the
employee is deemed to be discharged. No decision is necessary. The
exercise of the discretion to direct otherwise must therefore take place
prior to the deemed discharge.
22. In the matter of Pheniti v Minister of Education and Others [2005] 6 BLLR
614 (O) the Applicant sought to challenge the constitutionality of section
14(1)(a) of the Act. The court held that the words “unless the employer
directs otherwise” allows the employer a discretion and for that reason
the court concluded, the section does not flagrantly disregard the right of
the employee to fair labour practices and to justifiable administrative
action and could not be said to be unconstitutional. (at page 618)
23. That discretion simply enables the employer either to elect to abide by
the deeming provision which will have the effect of bringing the
employment contract to an end by operation of law or to elect to follow
employment contract to an end by operation of law or to elect to follow
some other cause of action by directing otherwise. If the employer does
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not exercise the discretion to “direct otherwise” the employee is protected
by section 14(2). In applying its mind to the representations made by the
employee in terms of section 14(2), the employer must naturally act
fairly, reasonably and justifiably.
24. It is necessary therefore to consider what impact, if any, the letter of the
6th August 2002 (the ultimatum) had on the discharge of the first and
second respondents from the employ of the applicant. At the time the
letter was written, the 1 st and 2 nd Respondents had already been absent
without permission for 14 consecutive days. The letter could serve no
real purpose other than to evidence a possible indication of the
applicants attitude to an enquiry to be held in accordance with section
14(2) of the Act which provides:
Section 14(2)
“If an educator who is deemed to have been discharged under
paragraph (a) or (b) of subsection (1) at any time reports for duty,
the employer may, on good cause shown and notwithstanding
anything to the contrary contained in this Act, approve the re
instatement of the educator in the educator’s former post or in any
other post on such conditions relating to the period of the
educator’s absence from duty or otherwise as the employer may
determine.”
25. Even if the letter amounted to or constituted an act complying with the
proviso that “unless the employer directs otherwise” , which I do not
believe to be the case, it could be no more than a suspension of the
operation of the deeming provision for the period 8 August to 12 August
2002. It certainly does not suggest in any way whatsoever, that the
applicant was irrevocably abandoning the provisions of the deeming
provision in section 14 nor for that matter that the Applicant was directing
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otherwise.
26. It is worth noting that despite the fact that the deeming provision in
section 14 appears possibly draconian, its effect is adequately
ameliorated by the employer’s discretion and by the provision of the
section14(2) procedure whereby the rights of employees are protected.
The deeming provision serves an important function in protecting the
employer by providing certainty in cases of extended absenteeism
without permission. The provisions of section 14(2) equally recognise
that employees affected by the deeming provision should in specific
circumstances be entitled to a hearing and opportunity to explain their
absence.
27. The socalled ultimatum, whether or not it was received by the first and
second respondents, is irrelevant to consequences which flow from the
provisions of section 14(1)(a). That it was not received by the first and
second respondents does not render their discharge unfair for either
procedural or substantive reasons. It does not have the effect of
converting what amounts to a discharge by operation of law into a
dismissal by the Applicant.
28. It follows that the first and second respondents were not dismissed. Their
discharge occurred by operation of law. It also follows that the first and
second respondents may yet invoke the provisions of section 14(2).
29. The fourth and fifth Respondents accordingly did not have jurisdiction to
consider the dispute.
30. The application to review the award of the fourth respondent succeeds
and is accordingly set aside.
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31. The first, second and third respondents are to pay the applicants costs,
the one to pay the others to be absolved.
_________
Gush AJ
28 September 2005
On Behalf of Applicant: Adv. M. De Klerk
Instructed By: State Attorney
On Behalf of Respondents: Adv. I. Pillay
Instructed By: Deneys Reitz Attorneys
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