Bonakele v Department Of Health North-West Province and Others (C294/2023) [2024] ZALCCT 26; (2024) 45 ILJ 2282 (LC) (11 July 2024)

Amended 25 September 2024

FLYNOTES: LABOUR – Public service – Dismissal – Deemed dismissal on unauthorised absence for longer than month – Nurse at hospital alleging threats and harassment – Coming to premises to attend meeting regarding grievances not being for performance of duties – Absent for more than calendar month – Not granted authorisation for absence – No objective basis for her to believe she was not required to report for work – Application for declaratory relief dismissed – Public Service Act, Proc 103 of 1994, s 17(5)(a)(i).

THE LABOUR COURT OF SOUTH AFRICA

AT CAPE TOWN

Of interest to other judges

Case no:C294/2023

In the matter between:

MASABATA BONAKELE Applicant and DEPARTMENT OF HEALTH: NORTH-WEST PROVINCE First Respondent MEC: DEPARTMENT OF HEALTH - NORTH-WEST PROVINCE Second Respondent HOD: DEPARTMENT OF HEALTH - NORTH-WEST PROVINCE Third Respondent

Heard: 15 May 2024

Delivered: 11 July 2024

Summary: (Application for declaration that employee not deemed dismissed and consequential relief- Interpretation of s 17(1)(a)(i) of Public Service Act, Proclamation 103 of 1994 – Authorities considered – LAC judgment in Gangaram v Member of the Executive Council for the Department of Health, KwaZulu-Natal and another distinguished – enquiries under s 17(1)(a)(i) and 17(1)(b) distinct -Deemed dismissal confirmed -application dismissed)

JUDGMENT[i]

LAGRANGE, J

The application

[1] The applicant, Ms M Bonakele, a professional nurse at Christiana District Hospital, seeks an order in the following terms:

“1. It is declared that the Applicant did not absent herself for her official duties without permission as contemplated in section 17(5)(a)(i) of the Public Service Act.

2. The Applicant continues to be in the employment, on no less favourable terms and conditions, of the First Respondent, in the same or similar position she occupied prior to her dismissal.

3. The First Respondent to retrospectively compensate the Applicant from date of dismissal;

4. The Applicant to report for duty within 10 (ten) days after the court order has been granted.

5. Further and/or alternative relief.”

(sic)

[2] The application is opposed. The respondents’ answering affidavit was filed six months’ late and they filed a condonation application, which the applicant opposed. The latter half of the delay was poorly explained. However, at the hearing of the matter, the applicant did not pursue her opposition to the answering affidavit, and it was agreed condonation could be granted.

[3] The relief sought by the applicant erroneously referred to section 17(5)(a)(i) of the Public Service Act, Proclamation 103 of 1994 (‘the PSA’). The correct provision is s 17(3)(a)(i) which states:

“(3)(a)(i) An employee, other than a member of the services or an educator or 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.”

[4] Essentially, the applicant wants declaratory relief that the deeming provision of s 17(3)(a)(i) is inapplicable on account of her not absenting herself from her official duties without the permission of her head of department. Accordingly, she could not be deemed to have been dismissed and remains an employee of the first respondent (‘the department’).

[5] After the application was argued on 15 May 2024, the court asked the parties to file supplementary heads on the court’s power to grant the declaratory relief sought.

Brief chronology

[6] For the sake of brevity, I will focus primarily on those events having a direct bearing on whether or not the applicant was deemed to have been dismissed, as they appear from the affidavits. However, it is useful to also sketch the context in which those events took place for a better understanding of how the disputed deemed dismissal arose. It should be mentioned that in her replying affidavit the applicant did not dispute any of the department’s allegations in the answering affidavit, which had raised issues not dealt with in her founding affidavit.

[7] Relations between the applicant, together with two union officials (Ms T Makuapane and Mr S Mouri), and an acting CEO, Dr D Masala, who was the clinical manager of the hospital, seemed to have deteriorated in the last quarter of 2022.

[8] The applicant portrayed Dr Masala as the cause of the deterioration and claims she and her colleagues were the ones who were harassed and intimidated by the former. The applicant claimed that she had escalated complaints of threats, harassment and victimisation of the MEC’s office in September 2022, but this is disputed by the respondents, who state also that no official complaint was lodged with the MEC.

[9] On the contrary, the department avers that it was the applicant and her previously mentioned colleagues who had intimidated, threatened, insulted and victimised Dr Masala during September 2022. On 2 October 2022, he contacted the MEC , the second respondent, to say the applicant was victimising and harassing him.

[10] Although the applicant claims that Dr Masala was relieved of his duties as acting CEO and placed in the position of deputy director following the intervention of the Chief Director to resolve issues between Dr Masala and herself and her colleagues after the director visited the hospital on 30 September 2022, the department states that the director visited the hospital for other reasons. The visit was in fact occasioned by his need to brief staff on developments relating to repairs to the hospital after it had burnt down earlier that month. At the meeting the applicant and her colleagues started dancing and chanting. They demanded Dr Masala be removed from his acting role and that the meeting could not continue in his presence. Certain intimidatory statements were made to the effect that ill would befall Dr Masala, at the hands of the community and others, if he was not removed. He left the meeting out of fear for his own safety. The incident was reflected in his application for an interim protection order from a magistrate.

[11] The department maintains that Dr Masala was relieved of his duties as acting CEO at the end of September and was replaced by Mr O Moalusi because he had been acting in the CEO position for a prolonged period and it was a normal staff rotation measure.

[12] Dr Masala obtained an interim protection order against the three individuals and, on 19 December, Mr Moalusi of the hospital directed that, in order to facilitate their compliance with the protection order, Dr Masala would not communicate with them. Ultimately, the protection order was not confirmed.

[13] The applicant was not at work at various times. The applicant claimed she was booked off work on 21 November until 1 December 2022 on account of depression, but no medical certificate was provided to support this. It is common cause that, in early December 2022, she was instructed by Mr Moalusi to return to work, which she did.

[14] She conferred with Mr Moalusi on her return to work about her reluctance to work with Dr Masala in the light of the protection

order and requested arrangements be made to assist her. He advised her there was no need for her to communicate with, or report to, Dr Masala, because he had replaced the latter as her direct line manager, when he was appointed acting CEO. Nevertheless, on 20 December 2022, he assisted her to make a referral to the OHS & Employee Wellness facility, which he states he did based on her unauthorised leave, her legal problems “including court proceedings and avoidance of fellow workers”. On the referral form checklist he also recorded conflict with management as an issue. It is unclear what should have happened after the referral was made, but there were no further developments arising from the referral, though the applicant said she expected the facility to get back to her.

[15] Whatever ought to have happened, it is common cause the applicant continued to work after her return to work in early December until 5 January 2023.

[16] The applicant claims that on 5 January she met with Mr Moalusi at his office to complain that Dr Masala still made the work environment hostile and Mr Moalusi assured her the matter would be attended to and she left the office awaiting feedback from the department. The department denied this and reiterates that she had no reason to interact with Dr Masala, because Mr Moalusi had replaced him as acting CEO.

[17] After 5 January 2023, the applicant only came to the workplace on 16 January, and returned again once more on 14 February 2023. She alleged that another meeting was scheduled for 16 January by Mr Moalusi because Dr Masala had been requested to act again as the hospital CEO. Mr Moalusi agrees a meeting was scheduled but states it was requested by the applicant and her colleagues. The meeting did not take place because the applicant and her colleagues wanted the Labour Relations Officer to attend the meeting, though Mr Moalusi claims he was never advised of such a requirement beforehand.

[18] It is common cause that the meeting was postponed to the following week but because Mr Masala had been re-appointed to act as CEO while Mr Moalusi was on annual leave, the meeting did not take place and was postponed until further notice

[19] It is common cause that neither on 16 January nor 14 February, did she attend the workplace in order to perform her duties, but was there only for the purpose of attending meetings with Mr Moalusi. In passing, it should be mentioned that the department set out what her workplace duties were in some detail, which was not disputed by the applicant.

[20] On 10 February 2023, the acting CEO issued the applicant with a letter stating:

“SUBJECT: Final instruction, Absence without leave

It has come to my attention that thou have not returned to work after you have been instructed to do so. This communique serves as a final instruction to report for duty as soon as possible. Please note that a failure to report for duty for 30 consecutive days constitute abscondment. Should you fail to report for duty for 30 consecutive days the necessary steps will be taken to obtain approval from the Head of Department to terminate your services.”

[21] The letter also confirmed that all the days she had been absent without leave would be treated as leave of absence in terms of the departmental policy as misconduct. It went on to state:

“Note also that your requested special leave is not recommended because protection order does not prevent employee from coming to work.”

[22] The applicant neither claims, nor is there any evidence that she responded in any way to this letter.

[23] On 13 February, Mr Moalusi scheduled an urgent meeting for the next day with the three employees. The purpose of the meeting as expressed in a WhatApp message was “to discuss the situation between us and Dr Masala.” The department denies this was the purpose of the meeting. It is unclear whether it denied the veracity of the purported WhatsApp message attached to the applicant’s founding affidavit. The department admits the meeting was convened but claims it was convened by the Chief Director, M Mvula, not Mr Moalusi, for the purpose of discussing the option of transferring the applicant and her two colleagues to another district hospital.

[24] In any event, notwithstanding the applicant’s claim about the subject matter of the meeting, she stated they were advised, on arrival at the meeting, that she and her colleagues would be transferred to another hospital on a precautionary basis. She claims

they refused to discuss this until the ostensible purpose of the meeting had been dealt with. The department denies this, claiming

that the department did not even get a chance to table the transfer proposal because they left the meeting before the chief director

could do so. The department also avers that the union representative at the meeting disrupted it, alleging that the director wanted to ruin the livelihoods of the three employees. The same day, a notice was issued to the union advising it of the department’s

intention to take disciplinary action against the applicant and Makuapane who were union office bearers.

[25] Another letter was issued on the same day to the Security Area manager of the hospital, requesting that the applicant and T Makuapane be disallowed entry to the premises except as members of the community seeking health services. The notice recorded that “Due to unforeseen circumstances the outcome of the meeting ended with the decision that the two incumbents not to enter the premises of the hospital or primary health care institution in attempt of work bases” (sic). The department claims the applicant was denied access because of the disciplinary measures instituted against her.

[26] On 20 February, Mr Moalusi advised the applicant in a letter that the hospital had requested approval to terminate her services from the departmental head on account of her not reporting from work from 3 January “despite efforts by management to instruct you to get back to work.” The letter reiterated that absenting herself from her work duties constituted abscondment and that her absence would be treated as unpaid leave. As in the case of the warning letter of 10 February, the applicant did not respond in any way to this letter either.

[27] Subsequently, on 10 March 2023, the applicant was notified in writing by the head of department that she had “absconded” from work for a period exceeding 30 consecutive calendar days, from 27 December 2022 to 13 February 2023. The notice was headed “Re: Termination of service yourself”. Among other things, it stated: “In terms of the above law, you are deemed to have dismissed yourself on account of abscondment” with effect from 28 December 2022.

[28] On the same day it appears that it was confirmed that the interim protection order obtained by Dr Masala had been discharged.

[29] On 22 March 2023, the applicant lodged an appeal to the MEC to reconsider the termination of her employment, purportedly in accordance with S 17(1)(b). From the appeal notice it appears she treated the somewhat awkwardly phrased notification of her deemed dismissal as a decision to dismiss her taken by the department.

Nature of the relief sought

[30] In this case the employee deemed dismissed did not apply for reinstatement following a deemed dismissal. S 17(3)(b) of the Public Service Act states:

“(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.”

[31] The applicant’s contention is that the requirements of s 17(3)(a), in terms of which the department believed she was deemed to have been dismissed, were not met. In effect, she is contesting the existence of her deemed dismissal and if it did not occur, it follows that her employment status remained intact on the date the department contends the deemed dismissal took effect. In cases where the employee in question has attempted to obtain reinstatement under s 17(3)(a) but the employer has declined to award reinstatement, the dismissed employee is entitled to review the employer’s refusal to reinstate them[1].

[32] However, if the employee does not apply to be reinstated, because they believe the employer incorrectly assumed the deeming provision

had taken effect can the employee seek declaratory relief to determine whether the deeming provision applied to them and consequently whether they were dismissed? Even though this court has the power to issue a declaratory order under s 158(1)(a)(iv) of the LRA, as a general principle a court will not issue declarations about the legal entitlements of a party in a particular situation, but it does have a discretion in the appropriate circumstances. Because the parties did not address whether this was a case in which the court could issue such an order in this case in their main argument, I thought it prudent to ask them to make supplementary submissions on the question of granting declaratory relief, which they did.

[33] In the judgement in Competition Commission v Hosken Consolidated Investments Ltd and Another [2], the Constitutional Court reaffirmed the two stage approach for granting declaratory relief, which was reaffirmed by the Supreme

Court of Appeal in Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd [3] read with the court’s own decision in Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others [4], as follows:

[79] The requirements for issuing a declaratory order are non-contentious. …

[80] … the Supreme Court of Appeal in Cordiant applied a two-stage approach in considering whether or not to grant declaratory relief: (i) the court must be satisfied that the applicant has an interest in an existing, future or contingent right or obligation; and (ii) the court may then exercise its discretion either to refuse or grant the order sought. Declaratory orders are discretionary and flexible as this court pointed out in Rail Commuters:

'It is quite clear that before it makes a declaratory order a court must consider all the relevant circumstances. declaratory order is a flexible remedy which can assist in clarifying legal and constitutional obligations in a manner which promotes the protection and enforcement of our Constitution and its values. Declaratory orders, of course, may be accompanied by other forms of relief, such as mandatory or prohibitory orders, but they may also stand on their own. In considering whether it is desirable to order mandatory or prohibitory relief in addition to the declarator, a court will consider all the relevant circumstances.'”

[34] It is obvious that if the pre-requisites for activating the deeming provision of s 17(1)(a) were not met then applicant’s deemed dismissal never occurred and her employment status in law did not change. She has a clear interest in knowing if she was entitled to retain her status as an employee. Her right to remuneration and the benefits of her employment, which she was deprived of when the department relied on her deemed dismissal, are clearly contingent on her employment status, so she has a proper legal interest in the determination of that status and to any consequential relief that flows directly from that.

[35] In the circumstances, I am satisfied that declaratory relief sought by the applicant is not for the purpose of determining some

hypothetical legal question, but arises from a real dispute between the parties about her employment status, and various rights and obligations between them are contingent on the outcome of that dispute.

Was the deeming provision of s 17(1)(a) activated?

[36] Whether the deeming provision is activated is an objective question and has two components. Firstly, the employee in question must have absented themselves from their official duties for a period longer than a calendar month. Secondly, their absence must have been without the permission of their head of department, office or institution[5].

[37] From the affidavits it is common cause that the applicant was not present at the hospital after 5 January until the meeting on 16 January, which she and her two colleagues had requested with Mr Moalusi, which did not proceed because they objected to it proceeding

without the Labour Relations Officer in attendance. the applicant does not allege she either performed or tendered to perform her

duties on that day. On the affidavits the only explanation for her presence at the hospital that day was to attend the meeting.

[38] It is common cause the meeting was postponed until an unspecified date the following week, but that meeting also did not take place

because Dr Masala was again acting in Mr Moalusi’s stead as acting CEO while the latter was on annual leave. The affidavits do not make clear when the postponed meeting was called off, but the applicant did not claim to have come to the hospital to attend the postponed meeting.

[39] On 5 February 2023, the applicant had been absent from work for more than a calendar month on the department’s interpretation of events, as her last day of work was 3 January. On that basis, the date that the deeming provision would have taken effect was 5 February. Notwithstanding the date of the deemed dismissal already having passed, she was instructed to return to work as soon as possible.

[40] The applicant claims that because she was “present at the workplace” on 5 January and “attended the workplace on 16 January, she had not absconded from work for a consecutive period of more than 30 days’, as claimed in Mr Moalusi’s letter of 20 February. She rightly notes that the period of her alleged abscondment relied on by the MEC to justify her deemed dismissal was the period 27 December 2022 to 13 February, whereas Moalusi had identified the relevant period as commencing after 3 January.

[41] There is plainly a difference between being present at a workplace and being present and performing, or at least clearly tendering to perform one’s duties. On the evidence, the only conclusion that can be reached is that the applicant was not present at the hospital on 16 January and was performing her duties. She was present to attend a meeting requested by herself and her co-grievants in their ongoing complaint about relating to Dr Masala.

[42] In light of the discussion above, it is clear that the applicant was not at work performing her duties from 5 January onwards until 14 February 2023, when she was effectively suspended and accordingly from that date could not have attended work to perform her duties even if she wanted to. Accordingly she absented herself from performing of her duties for more than a calendar month.

[43] The next question is whether her failure to attend work to perform her duties during the period in question was authorised by either the head of the hospital or the head of the department. For all intents and purposes, Mr Moalusi, in his capacity as acting CEO, to whom she reported, would have been the most obvious person to grant such authorisation.

[44] Nowhere in her affidavit does the applicant allege that she was granted such authority by anyone, nor does she even suggest that her absence from her duties was tacitly authorised. Arguably, this alone precludes her from claiming that the second criterion for a deemed dismissal was not met.

[45] Instead of claiming her absence from her work duties was authorised, she claims she had no intention of absconding and the employer was aware of her whereabouts at all times. She claims it was aware that she “experienced certain difficulties at the workplace” and that she had applied to be referred to the Employee Wellness programme.

[46] In support of her argument, the applicant cited the respective judgments of the LAC and LC in MEC Education Western Cape Government v Jethro and another NNO[6] and National Education, Health and Allied Workers’ Union obo Ngomane v Department of Employment and Labour and others[7]

[47] The first point to make is that both those decisions concerned applications to review the decision of the relevant state department

not to reinstate an applicant who applied for reinstatement. In Jethro’s the LAC enunciated the considerations which should be taken into account by the employer in deciding whether to reinstate an employee who had been deemed dismissed in terms of the applicable statute. In that case the court was dealing with a decision not to reinstate an educator in terms of s 14(2) of the Employment of Educators Act 76 of 1998. The LAC endorsed the approach of the court a quo to the purpose of s 14(2):

[34] After considering the appellant’s reasons set out in the letter of 17 June 2016 and the fact that the respondent’s absence had caused disruption and cost to the school, the learned judge correctly stated the purpose of s 14(2) of the EEA to be the efficient removal of employees who have absconded, and is intended to be used sparingly only in cases where the employer is unaware of the whereabouts of an absent employee or if the employee has evinced a clear intention not to return to work.”

(emphasis added)

[48] That provision is the equivalent of s 17(3)(b) of the PSA, which reads:

“(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 Commission may, notwithstanding anything to the contrary contained in any law, recommend that, subject to the approval of the relevant executing authority, he or she be reinstated in the public service in his or her former or any other post or position on such conditions as the Commission may recommend, 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 Commission may recommend.”

[49] The argument advanced by the applicant is essentially that the same considerations which should inform the decision by the employer

whether to reinstate an employee who is deemed dismissed, should be considered by this court in deciding if the applicant was deemed

dismissed. In this case, the court is not dealing with a review of a refusal to reinstate an employee who was deemed dismissed. Although the applicant did appeal against a purported decision not to reinstate her, no decision was made by the department, and she did not apply to review this conduct. Accordingly, those authorities are not applicable to this application.

[50] However, in Gangaram v Member of the Executive Council for the Department of Health, KwaZulu-Natal and another[8], the LAC also considered a review of a refusal to reinstate an employee who had been deemed dismissed, but decided that the deemed

dismissal did not even occur. On a superficial reading of the judgment, the LAC might appear to have been using the kind of considerations underpinning the policy behind provisions such as s 4(2) of the EEA and s 17(3)(b) of the PSA in order to determine whether the deemed dismissal even took place, but closer scrutiny of the details of the judgement does not support such an interpretation.

[51] In Gangaran the appellant employee had disputed the existence of factual grounds for her deemed discharge immediately she was advised that her services had been terminated on that basis. More than a year prior to her deemed dismissal, the employee had suffered a spinal injury and on medical advice had been assigned office duties. She continued to provide the employer with medical certificates confirming her ongoing treatment. She suffered another injury which occurred on duty. At some point after that the employer instructed her to do field work, apparently to avoid another employee’s refusal to perform field work by comparing their situation to that of the appellant. The appellant lodged a grievance against the instruction. When the instruction was reissued, she reported to the field station, but explained that she could not perform that work. She was booked off work and provided medical certificates and applied for leave. After several months she was told she could remain at her previous work centre but only if she accepted a drop of six salary levels. Alternatively, she was advised to apply for medical boarding. She would not agree to either option.

Eventually she was told to report for work at the previous work station, without a drop in salary, which she did, but she was required to perform operational duties. She lodged an unfair labour practice claim against an alleged unfair demotion and two months

later was advised she was discharged for being absent from work without permission for the previous year. She immediately disputed

the termination and pointed out that her unfair labour practice dispute was still pending. After unsuccessfully pursuing unfair

dismissal proceedings, she asked the employer to reconsider its stance on her dismissal and advised that she was willing to consider

returning to work to perform office duties, which she had done before. The employer was unresponsive, and she then formally requested her reinstatement under s 17(3)(a)(i) of the PSA, to which the employer never responded. Taking its failure to respond as a refusal to reinstate her she took that refusal on review.

[52] The LAC decided that the first question to be determined was whether the purported deemed dismissal of the appellant had indeed taken place. It reasoned:

“[29] In this matter, one may accept that the appellant did not report for duties. However, the uncontroverted evidence is that the appellant was sick and continued to, for a continuous period of her absence, complete sick leave forms with medical certificates attached and submitted them to her employer. Furthermore, in the absence of any indication that her sick leave was not approved, she was entitled to accept that her absence was with leave of the employer. Every time she submitted these documents the respondents’ officials accepted and acknowledged receipt. These officials knew of her condition and whereabouts. The respondents, on the other hand, continued to pay her salary until August 2011. They would not have continued to pay her salary if she was absent without their permission.

[30] Given the circumstances of her absence, it would be wrong to conclude that the appellant was absent without the permission of her employer. It would appear that the deeming provision was applied as an afterthought when nothing had been done by the respondents to address the appellant’s situation. My conclusion in this regard is based on the fact that the notice communicating the alleged deemed dismissal was only issued on 18 August 2011 and applied retrospectively to 11 September 2010, ignoring what had been happening since then. My conclusion on the set of facts presented is, therefore, that the jurisdictional requirements for the appellant to be deemed dismissed because of being absent for a period exceeding one calendar month without the permission and or knowledge of the HOD, office or the institution have not been satisfied, and as such there was no need for her to make representations in terms of section 17(3)(b) for her reinstatement.”

[53] Are the facts in this matter really comparable with those in Gangaran? Firstly, the only reason advanced by the applicant for not being at work was her ongoing unhappiness with Dr Masala and the effect this had on her. However, she did not dispute the department’s version that she was required to report to him. She alludes to her wellness referral, but there is no evidence she produced a single medical certificate booking her off for depression during any part of her absence. It is true she was being paid during February and March but in Garangan’s case the appellant had been paid for a prolonged period of several months during which she had regularly submitted medical certificates and the employer had acknowledged receipt thereof and never disputed her entitlement to remuneration. In the applicant’s case the employer made it clear it did not accept her absence from work, but she never responded by denying that her absence was unauthorised, or attempted to explain why she genuinely believed it was authorised. In Gangaran’s case there was a regular engagement with the employer about the conditions under which she could and should work, and she never once failed to respond when put on terms to render services, nor did the employer challenge her reason for being absent on account of illness. When she was instructed to report for work, she did so even though she believed it was unjustified. The applicant in this case did not respond in any way to the first written instruction issued to her to return to work and did not even attempt to justify why she could not do so.

[54] The applicant also never lodged a formal grievance that she was being prevented from performing her duties because of the work environment. In so far as there was a poor relationship with Dr Masala, on the affidavits I must rely on the respondent’s version in terms of the Plascon Evans[9] rule. On that basis it it appears that the applicant and her two colleagues were engaged in a concerted campaign against Dr Masala, and the deterioration in the relationship originated with them. At the very least one would have expected her to explain why she could not be expected to return to work. Likewise, when she was told to return to work, she could not have been in any doubt that her absence was not condoned.

[55] Considering all these factors, even on the most indulgent view of the applicant’s attempt to explain why her failure to report for work should be regarded as authorised, it does not begin to amount to a tenable case that her failure to perform her duties was either for reasons beyond her control, or that there was an objective basis for her to believe she was not required to report for work and perform her duties. It is important to emphasise that in Gangaran the LAC’s decision was not based on a value judgment about the fairness of why the appellant should not be deemed dismissed, but on a factual enquiry into whether her absence was authorised. The enquiry under s 17(1)(a)(i) should not be collapsed with the enquiry under s 17(1)(b).

[56] Accordingly, I am satisfied that the applicant in this matter has failed to show that her absence from performing her duties should be treated as an authorised absence.

[57] In conclusion, the applicant has failed to prove that for a period of more than thirty calendar days her failure to report for work and perform her duties was authorised by the head of the hospital or the department. Accordingly, the application for declaratory relief must fail.

[58] Given the court’s normal approach to costs and the fact that the case did raise genuine legal disputes, I do not think it would be accordance with the interests of law and fairness to make a cost award.

Order

1. The application for declaratory and consequential relief is dismissed.

2. No order is made as to costs.

R Lagrange

Judge of the Labour Court of South Africa.

Representatives - For the Applicant: T Du Preez Instructed by Symington De Kok Attorneys For the Respondents: G Zonke Instructed by State Attorney Cape Town

[1] A recent example of a review application of this nature is illustrated in the case of Public Servants Association on behalf of Jafta v Member of the Executive Council for Transport, Safety & Liaison (Northern Cape) (2022) 43 ILJ 891 (LC).

[2] 2019 (3) SA 1 (CC)

[3] 2005 (6) SA 205 (SCA)

[4] 2005 (2) SA 359 (CC)

[5] See PAWUSA and Another v Department of Education, Free State Province and Others (2008) 29 ILJ 3013 (LC), at paragraphs [15] – [16].

[6] (2019) 40 ILJ 2318 (LAC)

[7] [2023] 9 BLLR 964 (LC)

[8] [2017] 11 BLLR 1082 (LAC)

[9] Plascon-Evans Paints Ltd V Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634F-I

[i] As varied on 23 September 2024 to correct typographical and grammatical errors.