Nhlebela v MEC for Education and Another (D687/10) [2015] ZALCD 44 (31 July 2015)

Nhlebela v MEC for Education and Another (D687/10) [2015] ZALCD 44 (31 July 2015)

The applicant's delay in filing the review application was substantial but explained by the union's mistaken referral to the Bargaining Council and delays in arbitration scheduling. Both parties contributed to the delay. The applicant provided medical certificates for most of her absence and communicated with her supervisors. The Reinstatement Committee and Superintendent General failed to consider whether continued employment had been rendered intolerable and did not provide adequate reasons for refusing reinstatement. The refusal was arbitrary, irrational, and unreasonable, breaching the requirements of legality and fair labour practices. The applicant is entitled to reinstatement with...

Citation
[2015] ZALCD 44
Parties
Applicant: Nokuthula Veronica Nhlebela; Respondent: MEC for Education; Respondent: Head of Department of Education
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
31 July 2015
Case Number
D687/10
Procedural Posture
Review Application / Judgment on Review and Condonation
Outcome
Application for condonation granted; decision refusing reinstatement reviewed and set aside; applicant reinstated with 12 months' backpay; respondents to pay costs.
Judges
Alexander
Legal Topics
Public Service Act, Condonation, Legality Review, Reinstatement, Unfair Dismissal
Labour Law Administrative Law Public Service Act Condonation Legality Review Reinstatement Unfair Dismissal

Case Brief

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Parties

Nokuthula Veronica Nhlebela

Applicant

MEC for Education

Respondent

Head of Department of Education

Respondent

Procedural Posture

Review Application / Judgment on Review and Condonation

Legal Issues

  1. 1 Whether the applicant's late review application should be condoned.
  2. 2 Whether the refusal to reinstate the applicant was rational, lawful and reasonable under Section 17(3) of the Public Service Act.
  3. 3 Whether the applicant showed good cause for reinstatement after discharge by operation of law.

Ratio Decidendi

The applicant's delay in filing the review application was substantial but explained by the union's mistaken referral to the Bargaining Council and delays in arbitration scheduling. Both parties contributed to the delay. The applicant provided medical certificates for most of her absence and communicated with her supervisors. The Reinstatement Committee and Superintendent General failed to consider whether continued employment had been rendered intolerable and did not provide adequate reasons for refusing reinstatement. The refusal was arbitrary, irrational, and unreasonable, breaching the requirements of legality and fair labour practices. The applicant is entitled to reinstatement with...

Court Disposition

Application for condonation granted; decision refusing reinstatement reviewed and set aside; applicant reinstated with 12 months' backpay; respondents to pay costs.

Orders

  • The application for condonation for the late filing of the review application is granted.
  • The decision of the second respondent, dated 3 July 2009, not to approve the applicant's reinstatement is reviewed and set aside and replaced with a decision reinstating the applicant retrospective to the date of her discharge on 20 February 2008 with 12 months' backpay.