Ngema v Minister of Justice and Constitutional Development and Others (D 24/2020) [2022] ZALCD 45 (14 September 2022)

IN THE LABOUR COURT OF SOUTH AFRICA

Case No: D 24/2020

Not Reportable

In the matter between:

T. R. NGEMA Applicant

And

THE MINISTER OF JUSTICE

AND CONSTITUTIONAL DEVELOPMENT 1st Respondent

THE REGIONAL COMMISSIONER:

DEPARTMENT OF CORRECTIONAL SERVICES (KZN) 2ND Respondent

THE AREA COMMISSIONER: DEPARTMENT

OF CORRECTIONAL SERVICES (EMPANGENI) 3RD Respondent

HEAD OF CORRECTIONAL CENTRE (EMPANGENI) 4th Respondent

Heard: 11 August 2022

Delivered: Electronically on 14 September 2022.

Summary: Employee deemed dismissed in terms of section 17 of the PSA and clause 9 of GPSSBC Resolution 1/2006 – Held that the point of departure is whether the employee was properly deemed to have been dismissed – that the jurisdictional requirements for the employee to be deemed dismissed were not satisfied.

JUDGMENT

WHITCHER J

Nature of application

[1] The applicant seeks to have reviewed and set aside the decision of the second respondent made on 2 January 2020 not to reinstate him after he was purported to have been deemed dismissed by operation of law in terms of section 17(3) of the Public Service Act, 1994 (“the PSA”) and clause 9 of GPSSBC Resolution 1/2006 ("the Resolution").[1] He prays to be reinstated from 21 October 2019.

The Facts

[2] The applicant was employed as a correctional officer at Qalakabusha Correctional Centre, Empangeni Management Area (the Department).

[3] In November 2018, he took authorised vacation leave. He was due to return to duty on 22 November 2018, but did not.

[4] On 5 December 2018, the Department delivered a letter to his residence. It informed him that although the attendance register reflects that he has been on sick leave since 23 November 2018, the Department had reason to believe that he is “incarcerated in Mozambique”. He was instructed him to report for duty by 11 December 2018 or confirm in writing that he is indeed incarcerated, failing which disciplinary action would be taken against him.

[5] On 13 December 2018, his wife formally reported to the Department that he was indeed in Matola Prison in Mozambique. She deposed to an affidavit commissioned by the Department’s Employee Relations Manager. She stated that the applicant was arrested on 20 November 2018 because he did not produce authorisation [an entry permit] to bring his firearm into Mozambique. She further stated that he was not in possession of his cell phone, but recorded the contact details of an official of the prison.

[6] On 25 December 2018 and 30 January 2019 Mr Yaka Sibusiso, the Head of Correctional Centre, Qalakabusha Correctional Centre, Empangeni Management Area, addressed correspondence to the Mozambique authorities, appealing for the release of the applicant. On 26 February 2019, another official of the Department sent a similar appeal. It was to no avail.

[7] The applicant remained in custody until 17 October 2019 when he was convicted and released after paying a fine. He reported for duty on 21 October 2019 but was informed that his services had terminated in terms of section 17(3) of the PSA and clause 9 of GPSSBC Resolution 1/2006.

[8] On 23 October 2019, he filed a section 17(3) application for reinstatement. He contended that he had not absconded from his employment, explained the circumstances of his absence (as above), stated that he had not had access to a telephone and when his wife was able to visit, he had instructed her to report his situation to the Head of the Prison.

[9] On 2 January 2020, the Acting Regional Commissioner dismissed the application, citing various reasons, which essentially set out the provisions of section 17(3)(a)(i) of the PSA and clause 9 of the GPSSBC Resolution 1/2006 and the fact that the applicant had been convicted of a crime.

The Law

[10] Section 17(3)(a)(i) of the PSA provides that an employee who absents himself or herself from his or her official duties without permission of his or her head of department, office or institution for a period

exceeding one calendar month, shall be deemed to have been dismissed from the public service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of duty.

[11] Clause 9.1 of the GPSSBC Resolution 1 of 2006 provides that an employee who absents him/herself for 30 consecutive (calendar) days without permission or without notifying the employer shall be summarily dismissed. However, before dismissing the employee, the employer must endeavour to establish the whereabouts of the employee.

[12] As per Gcani v Minister of Justice and Correctional Services and other[2] a dismissal in terms of Clause 9.1 of the disciplinary code is a termination by operation of law.

[13] The effect of section 17(3)(a)(i) is that, provided the statutory jurisdictional requirements are met the employment contract of the affected employee is terminated by operation of law. The jurisdictional requirements are: the employee must have been absent longer than one calendar month and the absence must have been without permission of the employer.

[14] There is an additional jurisdictional requirement, as evidenced by Clause 9 of the GPSSBC Resolution 1 of 2006, which is that the employer must have endeavoured, without success, to establish the whereabouts of the employee.

[15] Crucially, the Supreme Court of Appeal in Phenithi v Minister of Education & others[3] held that the statutory provision creates an essential and reasonable mechanism for the employer to infer ‘desertion’ when the statutory prerequisites are fulfilled. In such a case there can be no unfairness, for the employee’s absence is taken by the statute to amount to a ‘desertion’. The SCA held that only the very clearest cases are covered. The Labour Appeal Court similarly held that the purpose of the statutory provision is for the efficient removal of employees who have absconded, and is intended to be used sparingly only in cases where the employer is unaware of the whereabouts of an absent employee or if the employee has evinced a clear intention not to return to work.[4]

[16] Since the termination of employment under section 17(3)(a)(i) happens by operation of law (and not the consequence of a discretionary decision), it is not challengeable under section 191 of the LRA or open to judicial review.

[17] Also, where the employee is informed in a letter of discharge that he/she has been discharged in terms of section 17(3)(a)(i), it is not the consequence of a discretionary decision, but merely the notification of a result which occurred by operation of law.[5]

[18] However, a dispute about whether the jurisdictional facts presented themselves in order for the legal fiction to take effect is justiciable by a court of law.[6]

[19] Section 17(3)(b) provides that if an employee who is deemed to have been dismissed, reports for duty at any time after the expiry of the aforementioned period the relevant executive authority may, on good cause shown, notwithstanding anything to the contrary contained in any law, approve the re-instatement of that employee in the public

service in his or her former or any other post or position, and in such a case the period of his or her absence from official duty shall be deemed to be absence on vacation leave without pay or leave on such other conditions as the said authority may determine.

[20] Clause 9.1 of the GPSSBC Resolution 1 of 2006 has a similar provision, namely that upon the employee’s reappearance, he/she may not be reinstated. The employee must make written representation to the delegated authority within 5 days from his/her reappearance should he/she wish reinstatement/re-employment to be considered.

[21] The decision under section 17(3)(b) is an exercise of statutory power, reviewable under section 158(1)(h) of the Labour Relations Act, 1995. It is a legality review, which tests whether decisions are rationally related to the purpose for which the power to make that decision was given. Also to be considered would be whether the decision not to reinstate the dismissed employee was rationally connected to the information before the respondent and to the reasons the respondent gave for it.

[22] As evidenced by the wording of section 17(3)(b), 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’.

[23] The employee must also have reported for duty, a prerequisite for the employer to consider reinstatement on good cause shown.[7]

Analysis

[24] I agree with counsel for the applicant that the first inquiry is whether the jurisdictional requirements prescribed by s 17(3)(a)(i) of the PSA and Clause 9 of GPSSBC Resolution 1 of 2006 were met.

[25] The applicant had not reported for duty for a period in excess of the prescribed period and was absent from work without permission during this period. However, on the employer’s own evidence, the applicant informed the employer about his situation and his whereabouts and did so before the expiry of the prescribed period and the applicant was contactable through his wife and the contact details of the prison furnished by her. Moreover, the Department instructed the applicant confirm in writing that he was indeed incarcerated, which he did on 13 December 2018, failing which disciplinary action would be taken against him. In line with the SCA and LAC judgments cited above and the purpose of the Resolution, this was thus not a clear case for the employer to infer ‘desertion’.

[26] In these circumstances, the jurisdictional requirements prescribed by s 17(3)(a)(i) of the PSA were not satisfied.

[27] It would appear that the deeming provision was invoked by the Department to address issues unrelated to the provision and to the misconduct contemplated therein, namely a charge of misconduct relating to the applicant’s criminal conviction and (belatedly) the incapacity of the applicant.

Order

1. The applicant is not deemed dismissed.

2. The respondents are to reinstate the applicant from 21 October 2019

with benefits on the same terms and conditions that previously pertained to him as if he had not been dismissed.

3. The applicant must tender his services by 1 October 2022.

4. The respondents must pay the applicant’s costs of suit.

B Whitcher

Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: M.P.

Nonyongo Attorneys

For the Respondents: Advocate

M.A. Matlamela

Instructed by: State

Attorney, KwaZulu-Natal

[1] The disciplinary code and procedures for employees of the Department of Correctional Services.

[2] (2019) 40 ILJ 358 (LC) 364 at paras 15 to 17.

[3] (2006) 27 ILJ 477 (SCA).[4] Department of Education, Western Cape v Jethro N.O. and another [2019] 10 BLLR 1110 (LAC)

[5] Phenithi (above).

[6] Phenithi (above); Gangaram v Member of the Executive Council for the Department of Health, KwaZulu-Natal and Another [2017] 11 BLLR 1082 (LAC); Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC); SAMA obo Mutunzi v MEC: Health in the North West (JR 2580/12, 22 May 2020).

[7] Phenithi (above).