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[2016] ZALCJHB 346
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Mayoba v Department of Justice And Constitutional Development (J2229/2013) [2016] ZALCJHB 346 (8 September 2016)
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REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No: J2229/2013
DATE: 8 SEPTEMBER 2016
In the matter between:
PHUMZILE GIVEN MAYOBA..............................................................................................Applicant
And
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT..................................................................................................................Respondent
HEARD: 24 JUNE 2016
DELIVERED: 8 September 2016
Summary: Review the decision not reinstate the employee after her employment was deemed to have terminated by operation of the law in terms of s 17 of the Public Service Act.
Judgment
MOLAHLEHI J
Introduction
[1] This is an application to review and set aside the decision of the respondent in terms of S173 (3) (b) of the Public Service Act (the PSA).
Background
[2] The applicant was, prior to her dismissal, employed as a service administration clerk and was responsible for the administration of payment of foster care to members of the public.
[3] The applicant states in her founding affidavit that due to the unreasonable working condition created by her immediate supervisor, she was diagnosed with depression and had to be hospitalised as from June 2009 to August 2009. She requested the doctor who admitted her to the hospital to inform the respondent about her heart condition.
[4] On her return to work the applicant, on 17 August 2009, she completed the leave form and submitted it the respondent.
[5] On 1 September 2009 the applicant received a letter indicating that she was dismissed, effective from 26 August 2009. The letter reads as follows:
“ABSCONDMENT AND DISCHARGE: YOURSELF
1. You are deemed to have been discharged from the public service on account of misconduct in terms of Section 17 (3) (a) (i) of the Public Service Act, No 103 of 1994 as amended, due to the fact that you have been absent from duty without prior permission for more than one calendar month.
2. Your discharge from service is with effect from 26 August 2009.
3. All monies owed to the Department of Justice and Constitutional Development shall be deducted from your pension and/ or other emoluments.”
[6] The decision set out in the above letter was informed by the memorandum from Mr Sobahle, the area court manager to Mr Loyiso Bala, of the regional labour relations office and Ms E Dlamini, head of the regional office-Gauteng. The memorandum reads as follows:
“1. Purpose
1.1 The purpose of this memorandum is to recommend for the dismissal with immediate effect of Ms Mayaba from the Public Service in terms of Section 17 of the Public Service Act.
2 Background
2.1 Ms Mayaba is employed by the Department of Justice and Constitutional Development and is based in Johannesburg Family Court as Senior Administrative Clerk.
2.2 Ms Mayaba has been with the Department and the Public Service as from 01 May 2004.
2.3 Ms Phumzile Mayaba has absented herself from duty without authorisation as from 10 June 2009 up to date.
2.4 The office of the Area Court Manager was informed of the absence of Ms Mayaba on 11 August 2009. The Area Court Manager then caused a letter to be delivered to Ms Mayaba on 11 at home instructing her to report for duty on 12 August 2009.
2.5 On 12 August 2009 the office of the Area Court Manager received a signed acknowledgement letter from Ms Mayaba which was delivered at her home by the messenger.
2.6 Ms Mayaba failed to report for duty on 12 August 2009 as instructed.
2.7 The copy of the letter is attached for ease of reference.
3 Recommendations.
3.1 Ms Mayaba has contravened the regulations of Section 17 of the Public Service Act in that she has without good cause and authorisation absented herself from duty for more than 30 calendar days.
3.2 The office further gave her an opportunity to report back at the office as per the attached letter which was served upon her personally and still failed to report for duty.
3.3 Ms Mayaba is currently on the department’s payroll and is still getting her full salary despite her absenteeism.
3.4 It is recommended that Ms Phumzile Mayaba be dismissed from Public Service with immediate effect.”
[7] On 9 July 2009, NEHAWU addressed the letter to the respondent in which it applied for the reinstatement of the employee. Attached to the letter amongst other things was the medical certificate confirming the hospitalisation of the employee. During September 2009, the employee lodged an appeal against the decision to dismiss her.
[8] The employee assisted by her union referred an alleged unfair dismissal dispute to the General Public Sector Services Bargaining Council (GPSBC) on 2 September 2009. The matter never proceeded at the GPSSBC.
[9] It would appear that the respondent did not consider the appeal or provide any response to the applicant until June 2013.
[10] On 18 June 2013, the respondent addressed the letter to applicant’s attorneys advising them that because the applicant was dismissed for misconduct in terms of S17 (3) (b) of the PSA, she could not appeal but rather that she could “apply for reinstitution or use other dispute mechanism.” Based on this advice the application for reinstatement was made on behalf of the applicant. In response thereto the respondent addressed the letter dated 13 August 2013, to the employee’s attorney wherein the stated the following:
“RE-REQUEST FOR RE-INSTATEMENT: YOURSELF
The above mentioned matter refers.
Subsequent to your application for re-in statement dated 08 April 2013, kindly be informed that it has not been approved by the Chief Operating Officer and therefore the discharge in terms of Section 17 (3) (a) (i) of the Public Service Act No 103 of 1994 is confirmed as such.
Your understanding will be highly appreciated.”
The case of the respondent
[11] The case of the respondent as stated in the answering affidavit is that the employee was dismissed because she was in breach of her employment contract in that she took employment with Pick ‘n Pay as a cashier without prior any prior written approval. This was confirmed by Pick ‘n Pay in an email dated 25 May 2009, wherein it was stated amongst others that the employee was scheduled to work only Saturday and Sunday.
[12] The respondent further contended that the employee only demanded her employment back after she was dismissed by Pick ‘n Pay in January 2013 and that is why it has taken five years to challenge her dismissal.
The employee’s case
[13] The employee did not dispute that she worked at Pick n Pay, but contended that she did that as a casual employee and further that she did not know that she was required to disclose that the respondent. The employee also contends that she was not dismissed for her casual work at Pick n Pay but her employment was terminated in terms of s 17 of the PSA.
[14] The employee states in her replying affidavit that she received a telegram from the respondent on 13 August 2009, which required her to return to work. She responded to the telegram on the same day. She went to work with her union representative and spoke to one of the managers Mr Sobahle who informed them that he was not aware that the employee was sick. They informed him that her supervisor, Mr Alex Chuene, was aware and that he and other employees had visited her at the hospital.
[15] Mr Sobahle was upon his request furnished with the medical certificate. He then indicated that Mr Chuene had send him an email wherein he complained that the employee was on “unapproved sick leave.”
Grounds for review
[16] The employee contends that the decision not to reinstate her is incorrect and unjust because the respondent failed to apply its mind in taking it. It is further contended that the respondent would have reinstated her had it applied its mind.
Preliminary point
[17] The employer alleges that the employee delayed in instituting the review proceedings. It would appear that the alleged delay is based on calculating the period from the time that an election was made to evoke the provisions of s 17 (3) (a) of the PSA by the respondent. It is trite that there is no prescribed period for instituting a review under s 158 of the Labour Relation Act. It is however trite that the review has to be made within a reasonable time.
[18] In the context of this case the reasonable time to institute review proceedings is from the time that the decision not reinstate the employee was made and that is during April 2013 and not 2009 when the employer evoke the provisions of s 17 (3) (a) of the PSA. This is so because there was no reason that could be reviewed when s 17 (3) (a) of the PSA was evoked by the respondent.
[19] In my view, the point raised by the employer is unsustainable. The reasonable period within which the review had to be instituted has to be calculated from the date of the decision refusing to reinstate the employee which is in April 2013.
Legal principles
[20] It has not been disputed that the employee in this matter was prior to the termination of her employment, employed in terms of the provisions of the PSA and thus the offence of being absent from work for a period exceeding thirty days without permission would be governed by the provisions of s17 of the PSA.
[21] Section 17(3) (a) of the PSA provides as follows:
“(i) An employee, other than a member of the services or an educatoror a member of the Intelligence Services, 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 dismissed 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.
(ii) If such an employee assumes other employment, he or she shall be deemed to have been dismissed as aforesaid irrespective of whether the said period has expired or not.
[22] Section 17(3) (b) of the PSA makes provision for the conditions under which a deemed dismissed employee may be reinstated. It provides as follows:
(b) If an employee who is deemed to have been so dismissed, reports for duty at any time after the expiry of the period referred to in paragraph (a), the relevant executive authority may, on good cause shown and notwithstanding anything to the contrary contained in any law, approve the reinstatement of that employee 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.”
[23] In dealing with the issue of an employer in the Public Service faced with an employee who absent himself or herself without permission for a period in excess of thirty calendar days, this court in Department of Transport, North West Province v Sebotha No & Others,[1] this Court said:
“12 …It needs to be emphasized that a reading of these cases indicates very clearly that when faced with a case involving absence from work by an employee in excess of 30 days, the employer has an election of either invoking the provisions of s17(5)(a)(i) or directed otherwise. The employer may instead of invoking the provisions of s17(5)(a)(i) of the PSA invoke the provisions of the Labour Relations Act 66 of 1995 (the LRA). Where an employer invokes the provisions of s 17(5), the employment relationship is terminated by the operation of law and can therefore not be said to be termination in terms of s186 of the LRA. Thus in this instance the bargaining council or the CCMA’s jurisdiction will be ousted by the deeming provisions in s 17(5)(a)(i) of PSA. If the employer elects to institute disciplinary proceedings and ultimately dismisses an employee who absented himself or herself without authority for a period in excess of 30 days then in that instance the provisions of s186 of the LRA would apply and the CCMA or the bargaining council would accordingly have jurisdiction.”
[24] In the present instance, the employee says her reason for being absent was because she was hospitalised and therefore the provisions of s 17 (3) (a) of the PSA should have not been evoked by the respondent. The respondent says that the employee’s absence was not approved. It would appear that the version of the respondent is plausible when regard is had to the fact the employee says when she went back to work she completed the sick leave forms.
[25] It is clear that in terms of s 17 (3) (b) of the PSA the employer has a discretion to exercise, once an employee who has been absent without authorisation, presents himself or herself after the expiry of the calendar month. The authorities are clear that the discretion has to be exercised in a fair and reasonable manner. This means that the employer in considering an application for reinstatement has to take into account all relevant factors and the circumstances of the case. The general approach to adopt when considering whether the employer in refusing to reinstate an employee who has applied for reinstatement after being absent without permission, is set out by Van Niekerk J in De Villiers v Head of Department: Education, Western Cape Province (2010) 31 ILJ 1377, in the following terms:
“This would ordinarily mean that unless the employer, having regard to the full conspectus of relevant facts and circumstances, is satisfied that a continued employment relationship has been rendered intolerable by the employee’s conduct, the employer should as a general rule approve the reinstatement of the employee.”
[26] The issue that has arisen in this matter relates to the provisions of s 17(3) (b) of the PSA. Accepting that the employee was absent from work without permission, and that she presented herself after the expiry of the calendar month period, the question is whether the conduct of the employee had rendered the employment relationship intolerable.
[27] The exercise of the discretion by the employer has to be evaluated in the context of assessing whether the employee had provided good reasons for his or her absence without authorisation. Put another way the issue would be whether the employee has shown good cause for his or her absence.
[28] It is apparent from the above that the decision not to reinstate the employee was taken on 13 August 2013. Except for indicating to the employee that her reinstatement application was unsuccessful, no reasons are given for that.
[29] It is however, trite that in law the employee was entitled to reasons as to why her reinstatement application was unsuccessful. In the absence of reasons as to why the application was unsuccessful it cannot be said that the decision was fair and reasonable. At best it can, but be said that the decision for not reinstating the employee was arbitrarily.
[30] It has to be pointed out that in the absence of reasons as to why the employee should not have been reinstated this Court is not in a position to determine whether the conduct of the employee had rendered the working relationship so intolerable such that reinstatement would not have been appropriate. There is also no evidence from the papers of the respondent that reveals that the conduct of the employee had rendered the employment relationship intolerable.
[31 The principle that decision makers must give reasons for any decision which affect the rights or interest of others is set out in Cape Bar Council v Judicial Service Commission as follows:
“(T)he duty to give reasons when rights or interests are affected has been stated to constitute an indispensable part of the sound system of judicial review. Unless the person affected can discover the reason behind the decision, he or she may be unable to tell whether it is reviewable or not and so may be deprived of the protection of the law. Yet it goes further than that. The giving of reasons satisfies the individual that his or her matter has been considered and also promotes good administrative functioning because the decision makers know that they can be called upon to explain their decisions and thus be forced to evaluate all the relevant considerations correctly and carefully. Moreover, as in the present case, the reasons given can help to crystallize the issues should litigation arise.”
[32] The issue of the employee working at Pick n Pay, is in my view, an afterthought which the respondent sought to use to justify its failures to what it was required to do in law. The version presented by the respondent papers project a simple misconduct in as far as this issue is concerned. It appears as though this is an issue that could, if indeed the respondent regarded it as a serious misconduct, have been dealt with in the ordinary disciplinary procedures.
[33] The issue of the employee working at Pick n Pay does not appear in the letter were in the respondent invoked the provisions of section 17 (3) (a) of the PSA. The incident that the respondent relies on occurred in May 2009 when Mr Sobahle says he saw the employee at Pick ‘n Pay. In addition to there being no evidence that Mr Sobahle never confronted the employee about this issue, there is no evidence that she was disciplined if indeed that amounted to misconduct.
[34] The impression which the respondent sought to create in its papers was that the employee was working at Pick ‘n Pay on a permanent basis during the period of her absence work. This is however not supported by the enquiry which was conducted by the respondent. The enquiry revealed, as per the letter from Pick ‘n Pay, that the employee was only rendering services there only on Saturdays and Sundays. And more importantly in this respect the respondent has not disputed the averment of the employee that there is no policy requiring her to have disclosed her casual employment with Pick n Pay.
[35] For the above reasons I find that the respondent in refusing to reinstate the employee failed to exercise its discretion in a fair and reasonable manner. The decision not to reinstate the employee accordingly stands to be reviewed.
Appropriate remedy
[36] It seems to me, based on the facts before this court, it would serve no purpose to remit this matter to the respondent for reconsideration. The employee wishes to be reinstated. There is no evidence that this is not practical.
[37] In light of the earlier discussion in this judgement, I see no reason why the respondent should not be ordered to reinstate the employee retrospective to the date of the decision not to reinstate. However, I do not believe that the employee is entitled to full retrospective reinstatement. The employee is of course not entitled to payment for the period of absence from work without authorisation. I am also of the view that the union could have done more to have the respondent take the decision regarding the issue of the reinstatement of the employee much earlier. For this matter I will adopt the reasoning by Steenkamp J in DENOSA obo N E Mangena v MEC for Department of Health, Western Cape (case number C914/11), in considering the appropriate remedy. In that case the provisions of the Labour Relations Act was used as a guideline to determine the appropriate remedy. The maximum of twelve months was used in this regard as a yard stick.
Order
[38] I therefore make the following order:
1. The decision of the respondent of 13 April 2013, is reviewed and set aside.
2. The respondent is ordered to reinstate the employee, Ms Mayaba, to her former post retrospectively to 15 September 2015, on the same terms and conditions of employment as previously pertained, without the loss of any remuneration or benefits.
3. The respondent is ordered to pay the applicant’s costs.
Molahlehi AJ
Judge of Labour Court
APPEARANCES:
For the Applicant: Frans F Erusmus Attorneys
For the Respondent: The State Attorney.
[1] (2010) 13 ILJ 97 LC