NEHAWU obo Zikalala v Department of Water and Sanitation and Another (D767/17) [2021] ZALCD 75; (2022) 43 ILJ 882 (LC) (27 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA

Case No: D 767/17

Reportable

In the matter between:

NEHAWU OBO ZIKALALA, PATRICK JABULANI Applicant

and

DEPARTMENT OF WATER AND SANITATION First

Respondent

THE MINISTER: DEPARTMENT OF WATER

AND SANITATION Second

Respondent

Application heard: 2 June 2021

Delivered (electronically): 27 October 2021

Summary: Legality review - Section 17(3)(b) of the Public Service Act, 1994 –purpose of the power granted to the relevant executive authority – executive authority permitted to interfere with the ‘deemed’ dismissal based on the legal standard of good cause shown, no more or less than that - the provision of reasons not a free-standing legality obligation.

JUDGMENT

WHITCHER J

[1] The applicant (Mr Zikalala) was deemed to have been discharged from his employment with the first respondent (‘the Department’) in terms of s 17 of the Public Service Act, 1994 (‘PSA’). He applied under s 17(3)(b) of the PSA to be reinstated. The Minister refused to approve the reinstatement. The applicant seeks to have that decision reviewed and set aside under s 158(1)(h) of the Labour Relations Act, 1995.

[2] Section 17(3)(b) stipulates that 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, approve the reinstatement of that employee in the public service in his or her former or any other post or position.

[3] The applicant commenced his employment with the Department on 1 March 2014 and was employed as a general worker. One year into his employment, he absented himself from work from 5 March to 4 May 2015. His absence was thus for a period exceeding one calendar month.

[4] When he reported for duty on 4 May 2015, he was informed in writing that his absence fell under s 17 of the PSA, and shall be dealt with as such. He was given written confirmation of this on 17 July 2015.

[5] To go back to what occurred before he reported for duty. On 10 March 2015, he received a letter from the Department instructing him to report for duty and provide reasons why he should not be disciplined for absenteeism. He did not respond to this letter.

[6] The applicant alleges in his founding affidavit that on 4 March 2015 he reported to his supervisor that he wished to leave early in order to consult a doctor as he was ill. He suggests that this somehow authorised his entire absence. The Department disputes both allegations.

[7] The applicant further alleges in his founding affidavit that on 13 April 2015, his sister delivered a medical report from a Dr Sigwaza to the Department’s Human Resources Manager. The attached document is dated 6 March 2015 and merely avers that the applicant is suffering from substance abuse and should be placed on an employee assistance program. It did not book him off sick. The Department denies receiving the document, and avers that even if it had received it on 13 April 2015, it would have been long after the period exceeding one calendar month.

[8] I note that in any event, later in his founding affidavit, the applicant explicitly accepted that his absence was unauthorised.[1]

[9] On 8 September 2016 [more than one year after he was deemed dismissed and informed of same], the applicant filed for reinstatement under s 17(3)(b).

[10] The application for reinstatement included written representation by the applicant’s union in which reference is made to two affidavits, one by the applicant (‘reinstatement affidavit’) and the other by his sister, and to certain reports by a Dr Savoy, a Dr Sigwaza and a traditional healer.

[11] There are other annexures to the review application - two reports from a Dr Sundarlall - but judging from the dates, they could not have formed part of the reinstatement application. The one is dated November 2016 and the other 17 January 2018, which post-dates the application for reinstatement.

[12] The applicant stated in his reinstatement affidavit that he consulted Dr Sigwaza, and then a traditional healer who diagnosed that he was suffering from delusions and booked him off sick from 4 March to 14 May 2015. The document is signed by one T. Dr S.C. Shabalala from Mhlabuhlangene Herbalists of RSA (Pty) Ltd.

[13] According to the reinstatement affidavit, this is the ‘medical’ report that his sister delivered to the Department on 13 April 2015. His founding affidavit (to the review application), however, states that the sister delivered Dr Sigwaza’s medical report.

[14] Section 23(2) of the BCEA states that a valid medical certificate must be issued and signed by a medical practitioner; or any other person who

is certified to diagnose and treat patients; and who is registered with a professional council established by an Act of Parliament.

There is nothing in the document from the traditional healer which indicates that it accords with these requirements.

[15] The applicant goes on to say (in his reinstatement affidavit) that he also consulted a Dr Savoy, a psychiatrist. It appears that he attached two reports from Dr Savoy. The first, dated 27 May 2015, records that the applicant was under his treatment from 14 May 2015 and presented severe mental illness, substance abuse and suicidal ideation, and that he admitted the applicant to the Newcastle Private Hospital from 18 to 27 May 2015. The second report is dated 25 May 2015, styled as a medical certificate and books the applicant off work until 1 June 2015.

[16] In her affidavit, the applicant’s sister does not mention delivering any documents to the Department.

[17] On 24 May 2019, the applicant was provided with written reasons for the Minister’s refusal to reinstate him. The stated reasons are that, “amongst others”, his absence was not authorised, was without good cause and was well in excess of one calendar month.

[18] The applicant relies on two grounds for review. The second one immediately falls to be dismissed. The complaint here is that the Minister failed to appreciate that the medical report from Dr Sundarlall clearly indicates that the applicant is fit for work. However, as I indicated earlier on the reports from Dr Sundarlall could not have formed part of the reinstatement application considering the first one is dated 25 November 2016, the other 17 January 2018 and the application for reinstatement was submitted in September 2016. The application for reinstatement itself only refers to reports from Dr Sigwaza, Dr Savoy and the traditional healer.

[19] The remaining ground for review contends that the Minister “failed to determine whether despite the applicant’s absence being unauthorised do the medical reports attached to the reinstatement application constitute good cause; and if the answer is in the negative, what are the reasons”.

[20] In general, a legality review tests whether decisions are rationally related to the purpose for which the power to make that decision was given. Also to be considered in this case would be whether the decision not to reinstate the applicant was rationally connected to the information before the Minister and to the reasons the Minister gave for it.

Analysis

[21] At the outset, it is important to go back to the wording of s 17(3)(b) of the PSA. Doing so reveals that the dismissed employee must show good cause for their application for reinstatement to be approved. The legal sense of the word, ‘show’, means that the employee must demonstrate or explain why good cause exists to reinstate him. The employee thus has a duty not only to place facts before the decision-maker but to show how these facts meet the legal standard of ‘good cause’. It is not for an employer or decision-maker to rummage through facts that may or may not exist in the employee’s file to justify reinstatement. Nor is it the decision-makers’ role to discount arguments not made by the employee. The decision maker is there to evaluate the employee’s application for reinstatement, not conduct a fact-finding exercise triggered by such a request.

[22] It bears remembering that employees who find themselves in the position of the applicant have been away from work without authorisation for a period of over a calendar month. An unauthorised absence of this duration is considerable both in its scope and, quite obviously, in its effect on the employer’s operations. In the case of public servants, the effect on operations impacts service delivery, directly or indirectly, and thus the constitutional mandate of the state. It is thus not surprising that the legislature saw fit to require that such an employee does the work of showing good cause why their dismissal, which on the face of it was richly justified, should be reversed.

[23] The duty to show good cause is even more pronounced when an employee has not immediately challenged their deemed dismissal. As with many standards in labour law, good cause is partly determined by balancing interests between the parties. Should an application for reinstatement happen a long time after the employee’s termination, additional factors may have arisen militating against reinstatement. These could include the post being filled or the duties having been efficiently split between other employees. Developments post-termination could constitute an impediment to the employee’s cause for reinstatement.

[24] I agree with the view expressed in HDS Construction (Pty) Ltd v Wait[2] that good cause eludes precise definition. Like “good faith”, it is one of those open norms that has general characteristics but assumes a precise meaning only on a case-by-case basis. However, whatever criteria are used to assess good cause, these should, in the first instance, be positively advanced and marshalled by the employee.

[25] This embedded procedural aspect of the phrase “on good cause shown” (emphasis added) has in my respectful view not always received attention in the way the obligations of a decision-maker under s 17(3)(b) are interpreted and assigned. It cannot be that a Minister of a government department must display that he or she considered and discounted all arguments not to reinstate the applicant so that their decision is held to be rationally connected to the information before them. The determination of the rationality of a Minister’s decision should, in my view, be confined to how they grappled with what was placed before them by the employee seeking reinstatement.

[26] What should be placed before a decision-maker? A decision to reinstate is not meant to evaluate whether there was a good cause shown for the original absence from work which caused the termination. The proper basis for the decision is whether good cause has been shown to reinstate the employee. I am thus not sure that the purpose of the power granted to the Minister is simply to determine whether the original actions of the applicant caused an irretrievable breakdown in the employment relationship. This may, at best, be one factor in deciding the issue of reinstatement. But showing ‘good cause’ for reinstatement goes beyond the wilfulness of the original absence.

[27] This flows from the wording of the PSA which requires good cause to be shown for reinstatement, not an after-the-fact assessment of whether there would have been grounds for termination, absent the deeming provision.

[28] That an employee must address themselves to their reinstatement also fits the purpose of the deemed dismissal provision. This was to bring relief to a large organisation such as the public sector in decisively dealing with absenteeism. For, under s 17(3)(b) of the PSA, we have an employee whose contract has already been terminated, albeit by operation of law. This termination is for conduct that, on its face, would have been a repudiation of the contract of employment and/or desertion in any event. An employee wishing to return to the public service thus has a steeper hill to climb than simply showing that his or her original unauthorised absence was not wilful. They would have to also address issues like the length of time it took them to apply for reinstatement, and whether it would not be impracticable for the employer to reinstate them, amongst other factors.

[29] One can imagine an employee whose absence was so acutely felt that they were replaced by the time they applied for reinstatement, or their position was deemed redundant and the employer is now running efficiently without them. In those cases, even a lack of wilfulness in the original absence may not constitute a good enough reason to reinstate, given that an employer also has interests at stake.

[30] So, apart from the explanation for a former employee’s original absence, other considerations that might affect a determination of “good cause”, include satisfactory proof of the explanation being provided, the length of the absence, whether the representations demonstrate that the employee was not in a position to contact the employer to explain the absence, whether there was a delay in making the application and the extent and reason for the delay, and whether reinstatement would inconvenience the employer or be impracticable. All these issues, (the list is not exhaustive), are relevant to the question of whether good cause for reinstatement has been shown.

[31] It appears from the nature of the affidavits supplied to the decision-maker in this matter, and the brief reasons given for denying reinstatement that the application for reinstatement was principally made on the narrow basis that the original absence from work was excusable on medical grounds. Although I have found above that other factors are also relevant and that the test under s 17(3)(b) is not confined to whether the original absence from work was on “good grounds”, if these are the arguments submitted to the decision-maker, then the decision-maker is entitled to make a decision based thereon. Put differently, an applicant for reinstatement must positively show good cause for reinstatement. It is not the task of a decision-maker to discount “bad cause” beyond the remit of the application for reinstatement.

[32] A decision-maker under s 17(3)(b) of the PSA who decides a matter solely on the grounds submitted to them is thus, in my view, not acting irrationally or unjustly. I do not agree that such a decision-maker is exercising a particularly profound power which would require a wide scale enquiry into matters not placed before him or her in order to ensure that justice prevails. The PSA itself provides for the termination of the contract upon certain jurisdictional grounds. A Minister is permitted to interfere with the ‘deemed dismissal’ based on the legal standard of good cause shown, no more or less than that.

[33] As stated above, employees who have absented themselves for a calendar month without permission and, in this case, without contacting the employer, have, on the face of it, deserted. In many private sector settings, they would have been exited from employment without any disciplinary hearing too, based either on a presumption codified in the disciplinary code or common sense, that they no longer wished to work at the employer. Public servants in the applicant’s position are no worse off than these private sector employees to whom s 17(3) of the PSA does not apply. The legislation in fact largely codifies desertion law, albeit with comparatively generous timeframes. Public sector employees do not face uniquely onerous post-dismissal repercussions. After termination, both private and public sector employees have difficult preliminary hurdles to cross at external dispute resolution forums before the fairness of any “dismissal” they allege may be adjudicated.

[34] At a policy level too, given that the other party to the employment relationship, the employer, has also been negatively affected by a lengthy, unauthorized and unannounced absence from work, I see no reason why the enquiry into whether an employee should be reinstated should assume greater resonance or scope than a simple evaluation of the reasons the employee themselves supplied in favour of reinstatement. As noted, in casu, these reasons appear to have been confined to whether the applicant’s original absence was wilful or not.

[35] I thus turn to consider the facts and arguments before the decision-maker in this case.

35.1 When the applicant absented himself he had been in the employ of the Department for only one year. His absence was for an excessive period of time, namely over two months.

35.2 During this time the employer was left in the dark as to the reason for the absence and whether he intended returning to work. There is no evidence that during that period he attempted to contact the employer, even telephonically, to explain his absence and indicate an intention to return to work, despite a written instruction to him on 10 March 2015 effectively calling upon him to do so. His allegation that he sent his sister with a letter implies a concession that he was in a position to administer important affairs and to contact the employer.

35.3 The applicant filed his application more than one year after having been informed that his services had been terminated in terms of s17 of the PSA. There is no explanation for this.

35.4 During the crucial 30-day period, which was from 6 March to 6 April 2015, the applicant provided the following explanation for his absence. He stated that he consulted Dr Sigwaza who gave him a certificate diagnosing substance abuse but did not book him off. Instead, Dr. Sigwaza recommended that the applicant investigate utilizing the employer wellness programme. The applicant apparently ignored this advice and instead consulted a traditional leader who purported to book him off for two months. This is way past the 30-day period.

35.5 We are left in the dark as to why this absence is necessary and what treatment the applicant received in the two months, if any[3]. Moreover, this is from an unaccredited traditional healer, with no recognized right to diagnose and treat patients. Even were the traditional healer accredited, he supplied no information on whether the nature of the applicant’s alleged complaint was such that he was unable to attend to the administration of his own affairs and make a basic call to the Department, explaining his absence. Not only was his absence wilful, but on the evidence (or lack thereof) before the decision-maker, even the applicant’s failure to report his absence was wilful.

35.6 For that crucial period, other than a medical report from Dr Sigwaza, who is a medical practitioner but who merely indicates that the applicant was suffering from substance abuse and not ill health warranting absence, there is in terms of the BCEA no medical reports from another person certified to diagnose and treat patients. Dr Savoy treated the applicant from 14 May 2015 which was after he had been advised that his services had been terminated.

[36] Thus, all the department had before it was Dr Sigwaza’s input and the traditional healer’s report. Neither these documents adequately supported the employee’s contentions that he could not report to work, or even seek to contact his employer. The applicant’s sister appears to have been with him so he could have sent something with her during this period at the very least.

[37] The question is then what rational decision can flow from a consideration of this information? In my view, a decision that the employee has not shown good cause that he should be reinstated flows quite rationally. The applicant has not properly explained or demonstrated why his absence from work for the period was justified. He has not addressed any of the broader issues relevant to a reinstatement decision, such as why he could not apply for leave, contact the employer to explain his whereabouts and why his reinstatement would not inordinately disrupt the employer’s operations or cause inefficiency. He also failed to account for the one-year period it took him to contest his termination.

[38] The sole reason advanced by the applicant for his absence was due to his (mental) health condition, a reason not properly evidenced as set out above.

[39] The next question is whether the decision-maker’s brief reasons for rejecting this application sufficed. It bears mention that, for present purposes, I do not regard the provision of reasons as a free-standing legality obligation. Reasons have an instrumental function in legality reviews in that they permit a reviewing court to glance into the mind of the decision-maker to ascertain whether the decision was rationally connected to the material on which the decision-maker relied. I have set out above what material the Minister had before him when he declined to reinstate the applicant. In my view, his decision, the reasons he gave for it, and the factual basis of those reasons align. Could the reasons have been more detailed? Yes. But, however brief, they were, to put it colloquially, on point. The employee elected to show cause to be reinstated based solely on the idea that his original absence from work was medically justifiable. On the affidavits produced in support of his application, this argument does not hold and the Minister said so.

[40] However briefly stated, the Minister’s addressed themselves to the applicant’s case for reinstatement. The Minister stated his reasons for rejecting reinstatement as being that “amongst others”, the applicant’s absence was not authorised, was without good cause and was well in excess of one calendar month. While the Minister appears to confine his reasons mainly to an assessment of the justifiability of the original absence, this is the narrow scope of the cause to reinstate that the Minister was shown and which it was his duty to evaluate.

[41] It was the applicant’s duty to show good cause. He did so confining his submissions to the medical explanations for his original absence. The Minister determined, with reasons that these grounds were inadequate or insubstantial enough to take the action of reinstatement prescribed by law.

[42] In the premises, the following order is made:

1. The review application is dismissed, with no order as to costs.

Benita Whitcher

Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT: S Kunene, instructed by Derik Jafta Attorneys

FIRST AND SECOND RESPONDENTS: C Jaipal, instructed by State Attorney, Kwazulu-Natal

kbhagwan@justice.gov.za

sibo@djattorneys.co.za

kznparalegal@nehawu.org.za

[1] See paras 26 and 27.

[2] 1979(2) SA 298 (C).

[3] Importantly, unlike an employee who does not need to disclose his diagnosis to obtain sick leave, an employee who wishes to show good medical cause to be reinstated under s 17(3)(b) is well-advised to provide these details, waiving privacy, to evidence their claims.