Maja v North West MEC for Health and Another (J 534/2020) [2022] ZALCJHB 317 (17 November 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 534/2020

In the matter between:

LESETJA JONAS MAJA

Applicant

And

NORTH WEST MEC FOR HEALTH

First Respondent

PROVINCIAL DEPARTMENT OF HEALTH

NORTH WEST PROVINCE

Second Respondent

Heard: 16 November 2022

Delivered: 17 November 2022

(This judgement was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 17 November 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks to review and set aside a decision made by the first respondent (the MEC), who on 21 January 2020 pallets decided to refuse to reinstate the applicant after he was deemed to have been dismissed in terms of section 17 of the Public Service Act, 1994. The application is filed in terms of section 158 (1) (h) of the LRA, which empowers this court to review any decision taken or any act performed by the state in its capacity as employer, on such grounds as are permissible in law.

[2] The applicant contends that the MEC’s decision was arbitrary and irrational, that it was rationally connected to the submissions that he made in support of his application for reinstatement, and that no reasons were given for the decision.

[3] The general principle to be applied is that the exercise of a discretion in terms of section 17 (3) (b) is subject to the principle of legality. The MEC does not dispute the obligation to give reasons, but relies on a memorandum addressed to him on 25 October 2019. The memorandum recommends that the MEC should not reinstate the applicant. The memorandum records that its purpose is to report on findings and recommendations regarding the applicant’s written representations made following his deemed dismissal. The factual background is recorded. In particular, it is recorded that the applicant was employed as a nursing assistance and that he was absent from work from 2014 until 5 May 2018 when he was advised by the sub district manager about the deemed termination of his employment. The memorandum records the applicant’s version of events and in particular, the fact that he did not dispute that he had absconded but recorded the reasons for his absence. In particular, though the applicant made reference to an attack on him in the workplace during September 2015, and his subsequent treatment for their trauma that he suffered, which included hospitalization. The memorandum records the employer’s version to the effect that the applicant had been frequently absent from work, without any change in his behavior despite counseling. In his analysis of the facts, the draft of the memorandum recorded that the requirement of good course required the applicant to provide a reasonable explanation for his absence without authorization. On the facts, the applicant had been absent without permission and without notifying the department of his whereabouts for a period of more than a calendar month in circumstances where his absence from work had been willful.

[4] In my view, the MEC’s endorsement of the memorandum, and extensive as it is found giving consideration to the applicant’s submissions as it does, is sufficient to constitute reasons for the MEC’s decision.

[5] In so far as the substance of the MEC’s decision is concerned, the applicant’s explanation for his absence was, in essence, that his absence from work should be justified on account of the emotional and mental trauma suffered as a result of the incident in his workplace during which a firearm was pointed at him. What the applicant’s explanation overlooks is the fact that the responsibility for seeking authorization for his continued absence from work remained that of the applicant, as did the responsibility to take steps to regularise his unauthorized absence from his employment. It was incumbent on the applicant to place facts before the MEC to meet the threshold of the standard of ‘good cause’. The facts placed before the MEC amounted to no more than that in 2014, the incident on which the applicant relies took place, that he was traumatized, that in the absence of support from his management the applicant’s family took it upon themselves to seek treatment, and that he was ultimately hospitalised. The period of unexplained and unauthorised absence from work is inordinate, and the explanation proffered for it inadequate. In my view, the MEC’s decision meets the threshold of rationality. The application thus stands to be dismissed.

[6] For the purposes of section 162 of the LRA, the requirements of the law and fairness are best met by each party bearing its own costs.

Order

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

CP Naude

Instructed by:

Issac Teke Mothibe Inc Attorneys

For the respondents:

P. R Sogoni

Instructed by:

State Attorney