REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number: 18/05
In the matter between:
M G PHENITHI Appellant
and
MINISTER OF EDUCATION 1st Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION IN THE PROVINCIAL
GOVERNMENT OF THE FREE STATE 2nd
Respondent
THE HEAD OF DEPARTMENT OF
EDUCATION IN THE PROVINCIAL
GOVERNMENT OF THE FREE STATE 3rd
Respondent
CORAM: MPATI DP, CAMERON, NAVSA, VAN HEERDEN and
MLAMBO JJA
HEARD: 8 NOVEMBER 2005
DELIVERED: 14 DECEMBER 2005
Summary : Employment Law – educators – discharge of – deemed discharge on account
of absence from work without permission for mo re than 14 consecutive days in terms of
s 14(1)(a) of Employment of Educators Act 76 of 1998 – coming into operation of deeming
provision not dependent upon any decision and so not constituting administrative action –
hearing not totally excluded and accordingly provision not unconstitutional
___________________________________________________________
2
JUDGMENT
____________________________________________________________
MPATI DP:
[1] As at 19 May 2000 the appellant had been an educator for 15 years.
She was notified by letter dated 31 July 2000 (the discharge letter) from the
third respondent, the Head: Education, Free State Province, that ‘in terms of
section 14(1)(a) of the Employment of Educators Act 76 of 1998 you are
deemed to have been discharged from service on account of misconduct from
19 May 2000, for being absent from work for a period exceeding fourteen (14)
consecutive days without the consent of the employer’. At the time of her
discharge the appellant was teaching at Nkgodise Primary School, a public
school in Dewetsdorp (the school).
[2] Section 14(1)(a) of the Employment of Educators Act (the Act) provides:
‘An educator appointed in a permanent capacity who –
(a) is absent from work for a period ex ceeding 14 consecutive days without permission
of the employer;
(b) . . .
(c) . . .
(d) . . .
shall, unless the employer directs other wise, be deemed to have been discharged from
service on account of misconduct, in the circumstances where –
3
(i) paragraph (a) or (b) is applicable, with effect from the day following immediately
after the last day on which the educator was present at work; or
(ii) . . . .’ 1
[3] The appellant referred the matter to the Education Labour Relations
Council (the Council) – she was advised in the discharge letter that she had a
right to do so if she was not satisfied – where conciliation was attempted.
When conciliation failed, the matter was set down for arbitration on 11
February 2002. The arbitrator found that the Council had no jurisdiction over
the matter since s 14(1)(a) of the Act was peremptory. He expressed the view
that the section ‘seems to be unconstitutional in that the employer is not
required . . . to apply the audi alteram partem rule before the dismissal’. He
accordingly recommended that the appellant ‘take the matter to High Court’ or
to ‘approach the Constitutional Court directly in order to set aside the
provisions of s14(1)(a)’ of the Act. The appellant launched an application for
direct access to the Constitutional Court, but the application was turned down.
She then instituted motion proceedings in the Orange Free State Division of
the High Court, seeking the following order:
‘1. That the decision of the Respondents to dismiss the [appellant] be set aside and
declared (an) unfair Labour Practice and unconstitutional.
1 See s 17(1)(m) (now 17(1)(j)) which, in the context of disciplinary procedures, provides that ‘[a]n educator shall be
guilty of misconduct if the educator . . . without leave or valid reason, is absent from office or duty’.
4
2. That the provisions of section 14(1 )(a) read with 14(1)(d) and 14(2) of [the Act]
(are) unconstitutional and invalid.
3 . . .
4. Further and/or alternative relief.’
The court a quo (Ebrahim J) dismissed the application with costs, but granted
the appellant leave to appeal to this court.
[4] The issues in this appeal are (1) whether the discharge of the appellant
from duty constitutes administrative action and, if so, whether it was fair and
(2) the constitutionality of s 14(1)(a) of the Act. The appellant avers in her
founding affidavit that on 16 February 2000 she was admitted to hospital due
to illness ‘until about April 2000’. She submitted medical certificates and leave
forms to the principal of the school, Mr Sekhele Amos Ramakau. She had not
fully recovered when she was discharged from hospital, but because she had
been informed by her colleagues that the principal intended to ‘dismiss’ her,
she reported for duty. On or about 19 May 2000 she again fell ill and
consulted a medical doctor on 22 May 2000. The doctor referred her to
hospital and booked her off work until 5 June 2000. On 6 June 2000 her son
died. She informed the principal of th is before she took time off so as to
arrange for her son’s burial. She states further that the principal was not
happy with her proposed absence since, according to him, she had exhausted
5
her sick and family leave. He nonetheless gave her permission ‘to attend to
the burial’. Shortly after her son’s burial she again fell ill and was booked off
by a medical doctor from 19 to 21 June 2000. This last incapacity ‘coincided
with school holidays’ but when she reported for duty at the school when it re-
opened she was informed by the third respondent, through the principal, that
her ‘services had been terminated’ due to absence from work for more than
14 consecutive days. She subsequently received a notice – the discharge
letter – through the post.
[5] Mr Ramakau, who is now a School Management Developer employed
by the second respondent, deposed to an affidavit on behalf of the
respondents. Whilst not disputing that she had been ill, he denies that the
appellant submitted medical certific ates and leave forms for the period 16
February 2000 to April 2000. He denies, however, that the appellant was at
the school between April 2000 and 19 May 2000. It is not necessary, in my
view, to make a finding in this regard because the period in respect of which
s 14(1)(a) of the Act came into operation is from 19 May 2000 onwards. I say
this because given the manner in which the respondents relied on that
subsection, 19 May 2000 would have been ‘the day following immediately
after the last day on which the educator was present at work’ (s 14(1)(a)(i)).
6
Mr Ramakau also denies that it was the appellant’s son who had died and
alleges that it was in fact the son of the appellant’s sister. He denies further
that the appellant had made any arrangements with him to attend to the burial.
[6] It is not in dispute that on 20 June 2000 Mr Ramakau delivered a letter
to the appellant in terms of which she was charged with misconduct ‘in that on
16 February to 25 April 2000 and on 1 June 2000 till now’ she had been
negligent or indolent in carrying out her duties by not attending ‘to your class
Grade 3B’. She was also invited, in terms of s 19(2) of the Act, to admit or
deny the allegations against her. T he appellant did not respond. Another
letter dated 21 July 2000 was addressed to her in the following terms:
‘It has come to the attention of the Depar tment that you have not reported for duty at
Nkgodise Primary School since 19 May 2000 up to date.
If you do not report to school on or before Wednesday 26/07/2000, your services will be
terminated on the basis of abscondment (absenting yourself fr om duty without the
permission from the employer.)
Yours sincerely
Principal : Nkgodise Primary School.’
On 27 July 2000 Mr Ramakau wrote to the School Management Developer,
Bloemfontein East District, advising that the appellant had failed to report for
duty at the school ‘on or before Wednesday, 26 July 2000’ as per the
7
instructions in his letter of 21 July 2000. The next correspondence (on 31
July 2000) was the letter of discharge.
Does the appellant’s discharge constitute administrative action?
[7] Although in his heads of argument Mr Khang, for the appellant,
submitted that it was unclear from the respondents’ papers whether the
appellant was ‘dismissed’ by operation of law or ‘on the basis of
abscondment’, he conceded in argument before us that the termination of the
appellant’s employment was by operation of law. This concession was wisely
made.
[8] It bears noting, however, that the first prayer sought by the appellant in
the notice of motion was the setting aside of ‘the decision of the respondents
to dismiss’ her and that such decision be declared an unfair labour practice.
In his heads of argument and before us Mr Khang argued that the termination
of the appellant’s employment was both substantively and procedurally unfair.
The complaint is captured in one single statement in the founding papers as
follows:
‘4.9 I was not given an opportunity to stat e my case and the termination was apparently
by operation of law without any hearing.’
8
[9] In Minister van Onderwys en Kultuur v Louw2 this court had occasion
to deal with the provisions of s 72 of the Education Affairs Act (House of
Assembly), 70 of 1988, which were almost identical to those of s 14 of the Act.
Section 72(1) of Act 70 of 1988 provided that a person ‘employed in a
permanent capacity at a departmental institution and who – (a) is absent from
his service for a period of 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 . . .’. The
respondent in Louw’s case was a general assistant and in permanent
employment at a boarding house of a cert ain high school in Upington. He
failed to report for duty over the period 29 July to 31 August 1992. On 11
September the principal wrote him a letter informing him, in essence, that
according to the school governing council he had been discharged (from duty)
(‘dat u ontslaan is’) and that his last day of service was 28 July 1992.
Following unsuccessful negotiations between his representatives and the
education authorities the respondent instituted application proceedings in the
Northern Cape Division seeking, inter alia, an order setting aside the ‘decision’
to terminate his services with effect from 28 July 1992. In this court Van
Heerden JA, reversing the decision of t he Northern Cape Division, said (at
2 1995 (4) 383 (A)
9
388 G-H):
‘The deeming provision [of s 72(1)] comes into operation if a person in the position of the
respondent (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 allegation is disputed, the factual dispute is justiciable by a court of law.
There is then no question of a review of an administrative decision. Indeed, the coming into
operation of the deeming provision is not dependent upon any decision. There is thus no
room for reliance on the audi rule which, in its classic formulation, is applicable when an
administrative – and discretionary – decision may detrimentally affect the rights, privileges
or liberty of a person.’ (My translation.)
The court held further that where, as in that case (and also the present matter)
the employee is informed in a letter of discharge that he/she has been
discharged in terms of s 72(1) - in this case s 14(1)(a) - it is not the
consequence of a discretionary decision, but merely the notification of a result
which occurred by operation of law (at 388 I).
[10] In my view, the Louw judgment is definitive of the first issue in the
present matter, viz whether the appellant’s discharge constitutes an
administrative act. (See also Frans v Groot Brakrivierse Munisipaliteit en
Andere 1998 (2) 770 (C) 777I-779E.) There was no suggestion that Louw
was wrongly decided. There being no ‘dec ision’ or ‘administrative act’
10
capable of review and setting aside, the second part of the first prayer in
casu, viz that the ‘decision be declared an unfair labour practice’, falls away.
[11] The operation of the provisions of s 14 (1)(a) of the Act may only be
lifted or revoked by the employer directing otherwise.3 It is not the appellant’s
case on the papers, nor was it argued before us, that the employer took a
‘decision’ not to ‘direct otherwise’. Her case has always been that the
‘decision to discharge’ her must be reviewed and set aside. An educator may
also be reinstated in terms of s 14(2), which reads:
‘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 reinstatement 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 other wise as the employer may
determine.’
It is at this stage that provision is clearly made for a hearing. Although the
appellant reported for duty when schools re-opened after the June/July 2000
holidays, the provisions of s 14(2) were not invoked. It is not necessary to
3 Louw, supra, at 389E
11
consider now the question as to who should have initiated such a hearing.
[12] It was argued, on behalf of the appellant, that it is not clear from the
papers that the period in excess of 14 consecutive days relied upon by the
respondents was not interrupted. Indeed, if that period had been interrupted,
the provisions of s 14(1)(a) would not have come into operation and the letter
of discharge would be invalid. The submission on behalf of the appellant was
that there are indications on the papers that point to the principal’s version of
events being unreliable. For example, the letter of 20 June 2000, in terms of
which the appellant was charged with misconduct for not attending to her
class over the period ‘16 February to 25 April 2000 and on 1 June 2000 to
date’, makes no mention of the period commencing 19 to 31 May 2000, which
falls within the period consequent upon which s 14(1)(a) came into operation.
Mr Khang accordingly contended that whatever dispute of fact there may be
on the papers can be resolved, not by reference to the well-established rule
laid down in Plascon-Evans Paints Ltd v Van Riebeeck Paints ,
4 but by this
court preferring the appellant’s version to that of the respondents, having
regard to the improbabilities and lack of clarity in the respondents’ version.
[13] The dispute of fact concerns t he averment by the appellant that, when
4 1984 (3) 647 (A) 634 H-I
12
her son died on 6 June 2000, she informed the principal of this fact before
she took time off to make arrangements for the funeral, and that the principal
gave her permission to do so. The principal (Mr Ramakau) denies that the
appellant made any such arrangements with him. No replying affidavit was
filed – nor did the appellant ever seek to have Mr Ramakau or the
respondents’ other deponents cross-examined. The appellant having elected
to institute proceedings by way of notice of motion, the issue must be decided
on the respondents’ version5. There is no reason to depart from this well-
established rule since the respondents’ version is not so far-fetched as to be
rejected merely on the papers. It must be accepted, therefore, that the
appellant never obtained permission from Mr Ramakau to be absent from
work from 7 June 2000 to arrange for her son’s burial (assuming, for present
purposes, that it was her son who had died).
[14] The appellant also alleges that she had sick certificates for the periods
22 May 2000 to 5 June 2000 (during which she was hospitalised) and 19 to 21
June 2000, when she was booked off by a medical doctor. She fails,
however, to state that she handed, or s ent, the sick certificates to the
principal. Mr Ramakau admits that he received a copy of the first-mentioned
sick certificate, but does not say when he received it. But he could not have
13
received it before the discharge letter was written, because the copy he
received, which is annexed to the founding papers, is dated 18 September
2000. It was issued well after the event. As to the second sick certificate, Mr
Ramakau’s uncontested version is that he saw it for the first time during
consultation ‘with the department’s attorneys’ on 5 December 2003. It follows
that these two sick certificates, which may have constituted evidence of the
existence of a valid reason6 for the appellant’s absence from work, do not in
any way serve to interrupt the statutory period required for the operation of s
14(1)(a) of the Act. The employer had no knowledge of the reasons for the
appellant’s absence from work.
[15] The appellant avers that her illness over the period 19 to 21 June 2000
‘coincided’ with the schools’ June holidays. Whether that period coincided
with the holidays or not is of no moment. The statutory period (required for
the operation of s 14(1)(a)) is objectively ascertainable. The period 19 May
2000 to 18 June 2000 is well in excess of 14 consecutive days even if
weekends and the public holiday (16 June – Youth Day) are disregarded and
only working days considered. Clearly, therefore, the appellant was absent
from work for a period exceeding 14 consecutive days without the permission
5 Plascon-Evans Paints, supra, at 634 H-I
6 See s 17(1)(m) referred to in footnote 1
14
of the employer and the provisions of s 14(1)(a) of the Act thus came into
operation.
Constitutionality of s 14(1) of the Act
[16] Under this head the appellant sought an order that the provisions of
s 14(1)(a), read with subsecs 14(1)(d) and (2) of the Act be declared
unconstitutional and invalid. Subsection 14(1)(d) provides that an educator
who, while disciplinary steps taken against him/her have not yet been
disposed of, ‘resigns or without permission of the employer assumes
employment in another position, shall, unless the employer directs otherwise,
be deemed to have been discharged from service on account of misconduct
. . . with effect from the day on which the educator resigns or assumes
employment in another position, as the ca se may be’. I fail to see how this
subsection has any relevance to the present matter. The appellant did not
resign from service or assume employment in another position. No further
reference will thus be made to this subsection.
[17] The grounds for the claim of unconstitutionality and consequent
invalidity of s 14(1)(a) are couched in the following terms in the founding
papers:
‘6. I have been advised and humbly submit that the provision of Section 14(1)(a) read
15
with . . . subsection (2) of the Act are unconstitutional and invalid on the following
grounds:
6.1 the provision violates the fundamental right to fair Labour Practice in terms
of section 23(1) of the Constitution bec ause it allows the [employer] to act
without considering the substantive and procedural aspects of the case
before termination.
6.2 In particular, the provision violates the fundamental right to administrative
action that is lawful, reasonable and proc edurally fair in terms of section
33(1) of the Constitution in that it does not only fail to compel the [employer]
to hear the other party but fails to compel the [employer] to give reasons for
(his) decision as well.’
(‘Employer’ is defined in the Act, for purposes of an educator in the service of
a provincial department of education, as the “Head of Department”.)
The difficulty facing the appellant regarding the last part of 6.2 (failure of the
section to compel the employer to gi ve reasons for his/her decision) is the
same as that discussed above (paras 9 and 10). No ‘decision’ is taken by the
employer, which would require him/her to give reasons for it. He/she merely
conveys to the educator, in the discharge letter, the result which, according to
his/her interpretation of the law (s 14(1)(a) of the Act), flows from the operation
of the provisions of the section. It is not a decision taken after, eg, the
16
exercise of a discretion.7
[18] With regard to the ‘reasons’ for the employer’s alleged ‘decision’, in the
present matter the letter of discharge in any event contains the reasons for the
termination of the appellant’s employment. The letter clearly states that in
terms of s 14(1)(a) of the Act the appellant was deemed to have been
discharged from service for being absent from work for a period in excess of
14 consecutive days without the consent of the employer. In my view, the
employer would, as a matter of course, as was the case in the present matter,
give reasons for the termination of an educator’s employment when conveying
to such educator the consequences of the deeming provisions of the section.
This ground accordingly has no substance.
[19] As to the ground that s 14(1)(a), read with s 14(2), violates the
appellant’s fundamental right to fair labour practices in terms of s 23(1) of the
Constitution, it is not clear what ‘act’ of the employer is alleged to be allowed
by the section ‘without considering the substantive and procedural aspects of
the case’. It would not be out of place to interpret the word ‘act’ to mean ‘to
decide to terminate or discharge’, to which the answer again is that the
employer takes no decision to terminate an educator’s services under
17
s 4(1)(a) of the Act. The discharge is by operation of law. In my view, the
provision creates an essential and reasonable mechanism for the employer to
infer ‘desertion’ when the statutory prerequisites are fulfilled. In such a case
there can be no unfairness, for the educator’s absence is taken by the statute
to amount to a ‘desertion’. Only the very clearest cases are covered. Where
this is in fact not the case, the st atute provides ample means to rectify or
reverse the outcome.
[20] But the more fundamental complaint, as can be distilled from the
otherwise ineptly formulated grounds mentioned above (para 17), is that
s 14(1)(a) of the Act deprives an educator of his/her right to administrative
action that is procedurally fair (s 33(1) of the Constitution, read, at the relevant
time, with item 23(2)(b) of Schedule 6) in that it permits the termination of an
educator’s services, albeit by operation of law, without such educator having
had an opportunity to be heard. That the termination of an educator’s
services under s 14(1)(a) of the Act materially and adversely affects such
educator’s rights (see s 3(1) of the Promotion of Administrative Justice Act 3
of 2000) cannot be questioned. The section, however, does not require any
decision to be made for its provisions to come into operation and for that
reason no hearing is contemplated prior to its coming into operation. And it is
7 Louw, supra at 388 I
18
difficult to fathom how the empl oyer could suspend the operation of the
provisions of the section so as to afford an educator an opportunity to be
heard.
[21] But the fact that s 14(1)(a) does not compel the employer to give an
educator a hearing before its provisions came into operation does not
necessarily make it unconstitutional. The section does not totally exclude a
hearing. While it is true that it does not place an obligation on the employer to
invite an educator to a hearing, the educator is not precluded from placing
before the employer material or facts that may move the latter to ‘direct
otherwise’, ie to direct that the operation of the provisions of s 14(1)(a) be
lifted or that the section shall not take effect. As was said in Louw
8 , the
phrase ‘unless the employer directs otherwise’ is not entirely clear. Whether
the employer may ‘direct otherwise’ only before the expiry of the period
contemplated by the section is not clear from the wording of the section. A
definitive finding on this aspect is, however, not necessary as no approach
was made in this case for the third respondent to ‘direct otherwise’. Section
14(2) also affords an educator an opportunity to be heard and to be
reinstated, provided he/she is able to show good cause as to why the
employer should reinstate. The fact that s 14(2) provides for a hearing only
19
after an educator has been deemed to be discharged in terms of s 14(1)(a)
does not mean that the latter subsection is in conflict with the Constitution (cf
Buffalo City Municipality v Gauss and Another9).
[22] Mr Khang referred us to s 210 of the Labour Relations Act 66 of 1995
(the LRA) which provides that:
‘(1) If any conflict, relating to the matters dealt with in this Act, arises between this Act
and the provisions of any ot her law save the Constitution or any Act expressly
amending this Act, the provisions of this Act will prevail.’
Mr Khang consequently submitted that the provisions of s 14(1)(a) of the Act
are in conflict with those of s 188 of the LRA, which decrees that ‘a dismissal
. . . is unfair if the employer fails to prove that the reason for the dismissal is a
fair reason related to the employee’s conduct or capacity . . . and that the
dismissal was effected in accordance with a fair procedure’. He argued that,
in terms of s 210 of the LRA, the provisions of s 188 must accordingly prevail.
[23] I am not persuaded that the provisions of s 14(1)(a) of the Act are in
conflict with s 188 of the LRA. As to the requirement that the reason for the
dismissal must be a fair reason there is no suggestion, as correctly pointed
out by Mr Soni for the respondents, that unexplained and unexcused absence
8 Supra, at 388F
9 2005 (4) 498 (SCA)
20
from work for more than 14 consecutive days is not a fair reason for the
termination of an educator’s employment. It is true that the consequences of
the operation of s 14(1)(a) of the Act are that, in most cases (assuming that
the employer may ‘direct otherwise’ only before the expiry of the statutory
period), an educator’s employment is terminated without him/her having had
an opportunity to state his/her case. But as I have mentioned above
(paragraph 21) a hearing is not totally excluded, whatever form it may take.
Moreover, s 14(2) clearly provides for a hearing, albeit only after an educator’s
employment had been terminated in terms of s 14(1)(a).
[24] To the extent that it may be argued that the deeming provisions of
s 14(1)(a) limit an educator’s right to procedurally fair labour practice, Ms
Lorraine Rossouw, who deposed to an affidavit on behalf of the respondents,
sets out the reasons why the provisions of s 14(1)(a) are necessary in the
education department. According to her, the consequences of an educator’s
absence without leave are, to mention a few, that: the learners are left without
a teacher; the department cannot appoint a substitute or a temporary
educator immediately; major disruptions are caused as a reshuffling of both
educators and learners is required; the department has to remunerate such
educator while he/she is not fulfilling his/her obligations and the principal of
21
the school concerned has a grave dilemma regarding what to do during the
educator’s absence. The provisions of the section thus ensure certainty as
the principal can set things in motion for the appointment of a substitute.
[25] The reasons given by Ms Rossouw are confirmed by Mr Eben Boshoff,
Director of Legal and Legislative Services, responsible for the drafting of
education legislation, who adds that having a teacher in the classroom is an
important aspect of giving substance to a child’s right to education.
Education, he continues, has the unique responsibility of balancing the rights
of children with the competing rights of others, such as educators. Section
28(2) of the Constitution states that a child’s best interests are of paramount
importance in every matter concerning the child. The intention behind s 14 of
the Act, he says, is to limit the potential harm that learners could suffer
because of the absence of an educator without leave, while still allowing for a
period of 14 days before the right of the educator is affected by operation of
law. As has been mentioned above, no replying affidavit was filed and these
factors, in justification for the limitation of an educator’s right to procedurally
fair labour practice, stand uncontradicted. There is therefore no reason to
hold that the limitation, if it be one, is not reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom (s
22
36(1) of the Constitution).
[26] I conclude therefore that the provisions of s 14(1)(a), read with s 14(2),
of the Act do not offend against the Constitution. The appeal must therefore
fail.
[27] As a last port of call Mr Khang contended that the provisions of
s 14(1)(a) oust the jurisdiction of the high court. He based his submission on
the arbitrator’s finding that the Council had no jurisdiction in the matter since
the section was peremptory. This contention has no substance. If, as was
held in Louw’s case,10 the educator concerned were to allege that he/she had
the necessary consent to be absent from work and that allegation is disputed,
the factual dispute is justiciable by a court of law. Similarly, if the employer
were to be requested to ‘direct otherwise’ (in terms of the section) and refuses
to do so, his/her decision (to refuse) is reviewable. The same would apply in
the case of a refusal to reinstate under s 14(2).
[28] Mr Khang submitted, in the alternat ive, that in the event of the appeal
failing, we should order that the matt er be remitted to the department for
further consideration by it. That would certainly be an incompetent order as
the appeal before us is against the order of the court a quo in terms of which
23
the appellant’s application was dismissed with costs. But it would not be
inappropriate, in my view, to make a few comments regarding the contents of
the letter of discharge. The appellant was advised that if she was not satisfied
with the termination of her services she had ‘the right to refer the matter to the
Education Labour Relations Council in terms of section 191(1)(a) of the
Labour Relations Act . . . within 30 days from the receipt of this letter’. She
was then given the Council’s address. No criticism can be levelled against the
advice per se, because at least conciliation was attempted, but failed.
However, one would have expected, first and foremost - precisely because
s 14(1)(a) does not clearly envisage a hearing, although it does not exclude it
- that the writer, who was the Head of the Provincial Education Department of
the Free State (the employer), would bri ng the appellant’s attention to the
provisions of s 14(2) of the Act. Sending the appellant to the Council while
failing to make any reference to s 14(2) was, in my view, a serious omission
on the part of the employer, and so much was conceded by counsel for the
respondent. He argued, however, correctly so in my view, that such omission
does not affect the termination of the appellant’s services, but may have costs
implications.
[29] Counsel for the respondent referred us to Ms Rossouw’s affidavit, where
10 Supra, at 388 G-H
24
it is alleged (and this is not disput ed) that after the arbitrator’s award and
before the Constitutional Court had handed down its judgment, the appellant
was given an opportunity to make representations with regard to her
reinstatement and that she failed or refused to avail herself of that opportunity.
In my view, this cannot be held against the appellant. At that time the parties
were already deep in litigation, the appellant having already approached the
Constitutional Court for relief and waiting for judgment. The upshot of all this,
in my view, is that it may still be open to the appellant to attempt reinstatement
by showing good cause why she should be reinstated in terms of s 14(2). It is
uncontested that, when the schools re-opened after she had been ill, she
reported for duty, a prerequisite for the employer to consider reinstatement on
good cause shown.
[30] As to costs on appeal, I consider that this matter may well not have
ended up in this court had the appellant’s attention been drawn to the
provisions of s 14(2) either when she reported for duty when schools re-
opened or in the letter of discharge. It would be proper, in the circumstances,
to make no costs order.
[31] The appeal is dismissed.
25
L M P A T I D P
CONCUR:
CAMERON JA
NAVSA JA
VAN HEERDEN JA
MLAMBO JA