NEHAWU obo Ngomane v Department of Employment and Labour and Others (JR 2482/2019) [2022] ZALCJHB 45 (2 March 2022)

THE LABIOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

CASE NO: JR 2482/2019

In the matter between:

NEHAWU obo ZWELI NGOMANE

Applicant

and

DEPT OF EMPLOYMENT AND LABOUR

First Respondent

DIRECTOR GENERAL LABOUR

Second Respondent

MINISTER OF EMPLOYMENT AND LABOUR

Third Respondent

Date of hearing: 1 March 2022

Judgment delivered by email: 2 March 2022

JUDGMENT

VAN NIEKERK J

[1] The applicant seeks to review and set aside a decision made by the first respondent to refuse to reinstate the applicant’s member, Mr Zweli Ngomane (the employee), into its employ in terms of section 17 (3) (b) of the Public Service Act, to declare his dismissal to be substantively unfair and to order his retrospective statement.

[2] For present purposes, by way of a factual background, it need only be recorded that the applicant was employed by the first respondent until 23 January 2017. The first respondent, having formed the view that the applicant had been absent from work without permission from 23 January 2017 to 24 February 2017 without the approval of his supervisor head of Department, notified the employee that in terms of section 17 (3) (a) (i) of the Public Service Act, 1994, he was deemed

to have been dismissed from the public service on account of misconduct. The same letter advised the employee of his rights in

terms of section 17 (3) (b) of the Act to show good cause for his absence and thereby seek reinstatement into the public service.

[3] On 1 August 2019, the applicant addressed a letter to the second respondent in which he sought reinstatement. The letter extends to some 22 paragraphs and in essence, seeks to make out a case that the applicant had not been absent from work for a period exceeding one calendar month and that the deeming provision in section 17 (3) therefore did not apply. The applicant gave particulars as to the employee’s whereabouts during February 2017 and in particular, stated that he had returned to work on 9 February 2017 only to be told that he should not report for work. That notwithstanding, the applicant avers that the employee had reported to the Barberton offices of the first respondent in circumstances where employees were not in the habit of signing the attendance register. Further, the employee states that he reported to the Nelspruit office on 23 February 2017 to process documents taken from clients in Barberton on 20 February 2017. On 24 February 2017, the employee states that he

was sick until 2 March 2017 and that he reported for work on that date.

[4] The second respondent replied to the applicant’s letter on 30 September 2019 and stated the following:

You are hereby informed that your request to be reinstated to the public service in terms of the above-mentioned provision of the Public Service Act has been declined. There is no good cause shown by yourself to justify your reinstatement in the public service.

[5] The present application was filed on 13 November 2019. The amended notice of motion records that the application is brought in terms of section 158 (1) (h) of the Labour relations act. The order sought, as I have

indicated, is one that seeks to review and set aside the first respondent’s decision not to reinstate the employee, to declare

his dismissal substantively unfair, and to order his retrospective reinstatement. An order to the effect that the applicant’s

dismissal is substantively unfair is simply not competent. It is trite that when an employee’s employment terminates in terms of section 17 (3) of the PSA, termination occurs by the operation of law and does not constitute a dismissal for the purposes of section 186 (1) of the LRA. I assume that what the applicant seeks is to review and set aside the decision to refuse to reinstate the employee, and to substitute that decision with an order to the effect that the application for reinstatement be granted.

[6] The difficulty I have, and which was canvassed with both parties’ representatives during argument, is that the applicant has failed to articulate any ground for review. An application for review may be brought in terms of section 158 (1) (h) of the LRA ‘on such grounds is permissible in law…’. This formulation necessarily requires an applicant to articulate the ground for review on which it relies. As the Labour Appeal Court has pointed out in Hendricks v Overstrand Municipality and another [2014] 12 LLR 1170 (LAC), reviews in terms of section 158 (1)(h) are possible under the Promotion of Administrative Justice Act (PAJA), and also on the constitutional grounds of legality and rationality, and possibly on common law grounds. During argument, the case for review boiled down to a failure by the second respondent to appreciate the correct factual position, and his failure to provide reasons for his decision.

[7] In regard to the former, the respondents have sought in the answering affidavit to provide a comprehensive response to the applicant’s claims to have either been legitimately absent from work or present at work during the relevant period. The replying affidavit discloses a material dispute of fact in this regard. In regard to the first respondent’s failure to provide reasons for his decision, the terse terms of the first respondent’s letter dated 30 September 2017 suggest that there were in effect no reasons given for the decision to refuse to reinstate the employee.

[8] The difficulty I have is that the applicant has failed to plead, as a ground for review, the first respondent’s failure to give reasons for his decision. In any review proceedings, this court is confined to the pleaded grounds for review, and it is not open to an applicant to seek to expand those whether by way of a replying affidavit or in the course of argument. However, it seems to me that the matter is capable of determination by reference to the applicable Rule. Rule 7A specifically regulates reviews. Rule 7A(2) requires that a notice of motion in any review proceedings must call on the person or body to show cause why the decision or proceeding should not be reviewed and corrected all set aside, and must call on that personal body to dispatch, within 10 days after receipt of the notice of motion, to the registrar, the record of the proceedings under review together with such reasons as are required by law or desirable to provide, and to notify the applicant that this has been done…’ (own emphasis).

[9] In the present instance, the amended notice of motion fails to call upon the first respondent to provide any record and fails to require reasons for his decision, as contemplated by the terms of the Rule. Had the applicant complied with the provisions of rule 7A (2) and finished record is contemplated by the same subrule read together with Rule 7A (6), the court may have been better placed to consider the merits of the application. However, the applicant’s failure

to comply with the relevant rules has resulted in a situation where what is before the court approximates an appeal in which the court is being asked to determine the correctness or otherwise of the first respondent’s decision. In short, in the absence of any properly articulated ground for review, and in the absence of any record relating to the first respondent’s decision and any reasons for that decision is contemplated by Rule 7A (2), the review application is not properly before the court.

[10] The order that I intend to make will hopefully remedy the shortcomings that have been identified and serve to provide a proper basis for the determination of the dispute between the parties.

I make the following order:

1. The application is removed from the roll.

2. The first respondent is directed to furnish to the registrar any record in his possession that relates to the decision reflected in his letter dated 30 September 2017 within 10 court days of the date of this order, and to furnish reasons for his decision.

3. The applicant is granted leave to file a supplementary affidavit in terms of Rule 7A (6) within 10 court days of receipt of the record and reasons referred to in paragraph 1 above; the respondents may file a supplementary answering affidavit and the applicant a reply

4. There is no order as to costs.

André van Niekerk

Judge of the Labour Court of South Africa

APPEARANCES

For the applicant: Mr M Matshiyane, Matshiyane Attoneys

For the respondents: Adv MR Mokwala, instructed by the state attorney