MEC for Health v Khoetha and Others (JR60/2008) [2010] ZALC 129; (2011) 32 ILJ 647 (LC) (7 September 2010)

MEC for Health v Khoetha and Others (JR60/2008) [2010] ZALC 129; (2011) 32 ILJ 647 (LC) (7 September 2010)

The court held that the commissioner correctly found the requirements of section 17(5)(a)(i) of the Public Service Act were not met, as the first respondent was present at work, albeit at a different workstation than instructed. The respondent was not absent from official duties in the strict sense, and the department was aware of his whereabouts. The applicant should have disciplined the respondent for insubordination or dereliction of duty rather than invoking the deeming provision. Consequently, the bargaining council had jurisdiction to determine the unfair dismissal dispute, and no reviewable irregularity was committed by the commissioner.

Citation
[2010] ZALC 129
Parties
Applicant: Member of the Executive Council for Health; Respondent: M D Khoetha; Respondent: M V Phatshoane N.O.; Respondent: Public Health and Social Development Sectoral Bargaining Council
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
7 September 2010
Case Number
JR60/2008
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application is dismissed. The arbitration award is made an order of court. The applicant is ordered to pay the costs.
Judges
Francis
Legal Topics
Unfair Dismissal, Jurisdiction of Bargaining Council, Public Service Act Section 17, Condonation of Late Filing, Procedural Fairness
Labour Law Administrative Law Unfair Dismissal Jurisdiction of Bargaining Council Public Service Act Section 17 Condonation of Late Filing Procedural Fairness

Case Brief

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Parties

Member of the Executive Council for Health

Applicant

M D Khoetha

Respondent

M V Phatshoane N.O.

Respondent

Public Health and Social Development Sectoral Bargaining Council

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the requirements of section 17(5)(a)(i) of the Public Service Act were met for the discharge of the first respondent.
  2. 2 Whether the bargaining council had jurisdiction to determine the unfair dismissal dispute.
  3. 3 Whether the commissioner committed a reviewable irregularity in her award.

Ratio Decidendi

The court held that the commissioner correctly found the requirements of section 17(5)(a)(i) of the Public Service Act were not met, as the first respondent was present at work, albeit at a different workstation than instructed. The respondent was not absent from official duties in the strict sense, and the department was aware of his whereabouts. The applicant should have disciplined the respondent for insubordination or dereliction of duty rather than invoking the deeming provision. Consequently, the bargaining council had jurisdiction to determine the unfair dismissal dispute, and no reviewable irregularity was committed by the commissioner.

Court Disposition

The review application is dismissed. The arbitration award is made an order of court. The applicant is ordered to pay the costs.

Orders

  • The late filing of the review application is condoned.
  • The review application is dismissed.