NEHAWU obo Ngomane v Department of Employment and Labour and Others (JR 2482/19) [2023] ZALCJHB 174; [2023] 9 BLLR 964 (LC) (8 June 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2482/19

In the matter between:

NEHAWU obo ZWELI NGOMANE Applicant And DEPARTMENT OF EMPLOYMENT AND LABOUR First Respondent DIRECTOR GENERAL LABOUR MR THOBILE LAMATI Second Respondent MINISTER OF EMPLOYMENT AND LABOUR Third Respondent

Heard: 1 June 2023

Delivered: 8 June 2023

(This judgment 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 8 June 2023.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant was employed by the first respondent as a supervisor at the Labour Centre, Barberton. He was dismissed from the public service, by operation of law, in terms of section 17(3)(i) seeks to review and set aside a decision by the first respondent to refuse to reinstate the applicant after his deemed dismissal in terms of section 17(3)(b) of the public Service Act, 1994. The application is brought in terms of section 158(1)(h) of the Labour Relations Act, in terms of which this court is empowered to review any decision taken by the state in its capacity as employer, on any grounds that are permissible in law. The founding affidavit does not assert any basis for review. Section 158(1)(h) requires an applicant to identify the ground for review that is relied on, and to make the averments necessary to sustain that ground. In a supplementary affidavit filed on behalf of the applicant, he contends that the decision not to reinstate him was irrational, in that he was not absent from work for the 30-day period contemplated by section 17(3).

[2] The letter advising the individual applicant that his request to be reinstated had been refused is dated 30 September 2019, and was written in response to the individual applicant’s request for reinstatement dated 1 August 2019. The basis for the refusal is what the second respondent contends is a failure by the individual applicant to show good cause to justify reinstatement in the public sector. In a supplementary affidavit, the second respondent recalled that the individual employee had maintained that

he had not been absent from work for a calendar month and that he had produced new evidence not presented and tested when the individual

applicant’s unfair dismissal claim was heard by the bargaining council. The second respondent noted that in those proceedings, the individual applicant’s version had been found less probable than that of the first respondent, i.e. that the individual employee had absented himself from work without permission for a calendar month.

[3] What is at issue then in the present proceedings is whether the jurisdictional precondition of one calendar month absence from official duties without permission had been met thus entitling the first respondent to invoke the provisions of section 17(3)(i).

[4] Provisions such as section 17(3) are to be used sparingly, and in circumstances where the employer is unaware of the whereabouts of the absent employee (see MEC Education Western Cape Government v Jethro & another NNO (2019) 40 ILJ 2318 (LAC), in relation to a similar provision in section 14 of the Employment of Educators Act). In the same judgment, the court said the following:

[43] The remaining question is whether the appellant’s decision thereto there was no good course where reinstatement is reviewable. Various factors are relevant in determining whether good cause exists for reinstatement under s 14 (2) of the EEA. In the interests of flexibility, it is inadvisable for courts to define the requirements of good course to categorically. There is no numerus clausus of factors. Irrelevant considerations include: (i) the reasons for the absences; (ii) the duration of the absences; (iii) the conduct of the educator prior and subsequent to his or her deemed discharge; (iv) the impact of the absence on the employer; (v) the whereabouts of the educator during the period of absence; (vi) the practicality and tolerability of a continued employment relationship; and (vii) the availability of alternative processes and solutions to the problem that led to the educator’s absence.

And further:

[45] … The applicable principle is rather that the employer in exercising the discretion under s 14(2) of the EEA (in the light of the fact that the deemed dismissal often would not have been preceded by any hearing or inquiry in which the educator participated) must evaluate all the circumstances, to determine if the continuation of the employment relationship is indeed to become intolerable as a consequence of the educator’s absence. Fairness and proportionality require deliberation of the appropriateness of permanently severing employment relationship. The discretion must be exercised with the benefit of informed hindsight. This obliges the employer to investigate and reflect fully on the reasons for the absence of the alternatives to dismissal, which may not have been considered previously by reason of the operation of the deeming provision.

[5] In the present instance, the applicant is alleged to have been absent from work without permission from 23 January 2017 to 24 February 2017. For reasons that are not apparent, the notice advising the applicant of the termination of his employment was issued to him only on 25 August 2017. The applicant thereafter sought to pursue a dispute concerning what he contended was his unfair dismissal. On 31 March 2019 his application was dismissed on the basis that the bargaining council had no jurisdiction to entertain the dispute, since the applicant had been dismissed by operation of law. In the course of his award, the arbitrator concluded that on a balance of probabilities the applicant was indeed absent from work between 23 January 2017 and 24 February 2017. Reasons for refusing to

reinstate the applicant, as recorded in the second respondent’s letter dated 15 March 2022, are that there was no good cause shown by the applicant to justify his reinstatement, that he had produced new evidence not presented or tested when the matter was heard in the bargaining council, that he was employed as a registration supervisor, a point of entry in the department and that the department could not afford to have its officials absent for lengthy periods without permission, and that the applicant’s

absenteeism had destabilized the operations of the department.

[6] The primary basis on which the applicant seeks to review and set aside the second respondent’s decision is the contention that he was not absent from work for the period to which the first respondent refers. The applicant contends that he resumed work on 9 February 2017. In particular, the applicant contends that he was sick for the period 23 January 2017 to 8 February 2017, and

that he had submitted a traditional healer certificate as evidence of his whereabouts during that period. Further, the applicant submits that the first respondent failed to take into account that he, the applicant, resumed work on 9 February 2017 and was paid his remuneration for the month of February and March 2017. Put another way, the applicant’s case is that one of the jurisdictional

conditions for the exercise of the discretion conferred on his employer by section 17(3) (in the form of an absence from work for at least one calendar month) had not been met. Further, the applicant submits that the second respondent acted irrationally by failing to appreciate that the applicant had submitted a certificate issued by a traditional healer in respect of a significant period during which he was allegedly absent without permission, that he misdirected himself in relation to the status of the arbitration award issued by the bargaining council and that there was no evidence to suggest that the applicant’s absence had destabilised and compromised the first respondent.

[7] The respondents contend that on 23 January 2017, the applicant was not present at work, having advised his supervisor that he ‘could not make it to work’. It is common cause that the text message sent did not constitute an application for leave for permission to be absent. On 24 January 2017, the applicant’s supervisor called him, but the calls were not answered. The supervisor went to the applicant’s last known address, but did not locate him. On 1 February 2017, the applicant’s supervisor’s sent a letter by registered post to the applicant informing him that he had been absent without permission and that he was to finish reasons within five working days why disciplinary action should not be taken against him. There was no response to the letter. On 7 February 2017, the supervisor sent a further letter to the applicant to remind him of the implications of his absenteeism,

and that he would be deemed to be discharged should the absence exceed one calendar month. In the same letter, the applicant was

advised that arrangements were being made to freeze his salary. On 28 February 2017, two employees of the labour centre at which the applicant was engaged visited the applicant’s address to deliver the letter dated 17 February 2017. Applicant was not present, the letter was sent to family members. The applicant returned to work only on 2 March 2017 when he applied for relief by submitting a medical certificate booking him off from 24 February 2017 until 1 March 2017. On the same date, the applicant submitted a letter from a traditional healer stating that the applicant had been under her supervision between 23 January 2017 and 8 February 2017. It is not in dispute that this letter does not meet the requirements of the respondent’s sick leave policy.

[8] What distinguishes the present enquiry from that conducted by the arbitrator in the unfair dismissal dispute (on which the applicant relies to support its contention that the employee was absent for 30 calendar days) is that the former concerned an enquiry into the existence of misconduct. The present enquiry is one into the exercise of a statutory discretion granted to the second respondent,

which in turn required the second respondent to determine whether good cause to grant reinstatement had been established. What the respondents overlook is the purpose of section 17(3), i.e. to remove employees who have absconded in circumstances where the employer is unaware of the whereabouts of the absent employee, or where the employee has evinced a clear intention not to return to work. Where an employer can resort to less restrictive measures such as applying its disciplinary code and procedure, or its incapacity procedure (see Jethro & another at para 36).

[9] Even if I accept that the applicant was absent from work without permission for the period 23 January 2017 to 24 February 2017 (which I am inclined to do), that is not the end of the enquiry. The calendar month’s absence and the deemed dismissal provided for in section 17(3)(a) trigger the right to request reinstatement in terms of paragraph (b). The determination of whether good cause had been established to warrant reinstatement into the public service is a discrete enquiry which, as the LAC has pointed

out, requires an evaluation of all of the relevant facts and circumstances, exercised with the benefit of informed hindsight, of

the reasons for absence and the alternatives to a termination of employment, including those that may not have been considered

previously by virtue of the operation of the deeming provision.

[10] As I have indicated, the letter addressed to the applicant refusing his request for reinstatement says no more than that the applicant had failed to establish good cause to justify reinstatement. Much of the rationale proffered by the letter is related to the question of whether the applicant had indeed been absent without permission for a calendar month. The only other reason relates to the impact of the applicant’s absence on the first respondent’s operation, and in particular, the assertion that the applicant’s absence destabilised operations in the office and compromised service delivery.

[11] What the second respondent failed to do was to consider the duration of the absence. On the respondent’s version, the applicant returned to work on 2 March 2017; the period of absence was thus not protracted. Further, there is no indication given that any less restrictive measures were considered, for example, whether the applicant should be disciplined for his absence from work, or whether and to the extent that the applicant’s absence was occasioned by illness, his continued employment ought to be reviewed. Further, the first respondent does not appear to have taken into account the fact that the applicant produced evidence that he was under the care of a traditional healer for the period 23 January 2017 to 8 February 2017. While the respondents correctly

contend that the certificate does not meet its requirements for the purposes of its sick leave policy, the issue before the second

respondent was not whether the applicant was entitled to paid sick leave. What was at issue was the reason proffered by the applicant

for his absence. The certificate issued by Ms Lubisisi goes some way to explaining where the applicant was during half the 30-day period on which the respondents rely, and ought properly to have been taken into account. The sense after a perusal of the record is that the respondents considered that in the absence of any proof that the applicant had not absented himself for the period 23 January 2017 to 24 February 2017, his request for reinstatement should be denied. The enquiry into the appropriateness of reinstatement is much more than that – it extends to the proportionality of any reliance on section 17(3), the extent of any incapacity that the applicant may have suffered, the extent of any mitigation related to the applicant’s absence on account of his health, and the like. Indeed, a perusal of the record indicates that the respondents snatched at a bargain once the 30-day period had run its course, and relied on the applicant’s absence during that period, to the exclusion of other relevant factors, in their consideration of the applicant’s request to be reinstated. For these reasons, in my view, the decision to refuse the application for reinstatement was irrational and arbitrary, and thus stands to be reviewed and set aside.

[12] Finally, it warrants mention that the record discloses the submission of two letters of resignation by the applicant, the first on 8 March 2017; the second on 15 March 2017. These will obviously need to be taken into account in the implementation of the order that I intend to grant. Whether the applicant stands to benefit materially from a setting aside of the second respondent’s decision is not at all clear from the papers before me. For the purposes of section 162, the requirements of the law and fairness are best met by each party bearing its own costs.

I make the following order:

1. The decision by the second respondent to refuse to reinstate the applicant pursuant to his request to be reinstated following his deemed dismissal in terms of section 17(3)(a)(i) of the Public Service Act, is reviewed and set aside.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the applicant: M Matshiyane, Matshiyane Attorneys

For the respondent: Adv MR Mokwala

Instructed by: State Attorney