Nkabinde v Public Health and Social Development and Others (JR1866/22) [2024] ZALCJHB 394; (2025) 46 ILJ 173 (LC) (13 September 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JR1866/22

In the matter between:

CHARLES MANDLA NKABINDE Applicant and PUBLIC HEALTH AND SOCIAL DEVELOPMENT SECTORAL BARGAINING COUNCIL First Respondent COMMISSIONER BENAULT NTSEPENG N.O. Second Respondent DEPARTMENT OF HEALTH LIMPOPO Third Respondent

Heard: 5 September 2024

Delivered: 13 September 2024

(This judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 9 September 2024.)

Summary: Deemed dismissal for unauthorised absenteeism in terms of section 17(3)(a)(i) of the Public Service Act – bargaining council commissioner’s decision to decline jurisdiction over unfair dismissal dispute on basis that requirements of the section were met found reviewable

JUDGMENT

MYBURGH, AJ

Introduction

[1] The applicant seeks to review and set aside the jurisdictional ruling made by the second respondent (commissioner). In his ruling, the commissioner found that the first respondent (bargaining council) lacked jurisdiction over the applicant’s unfair dismissal

dispute because he was dismissed by operation of law in terms of section 17(3)(a)(i) of the Public Service Act[1] (PSA).

[2] Section 17(3)(a) reads:

“(i) An employee, other than a member of the services or an educator or a member of the Intelligence Services, 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.[2]

(ii) If such an employee assumes other employment, he or she shall be deemed to have been dismissed as aforesaid irrespective of whether

the said period has expired or not.”

[3] Also relevant is section 17(3)(b) which reads:

“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 and notwithstanding anything to the contrary contained in any law, approve the reinstatement 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.”

[4] The essential basis for the review is that, given what transpired at the hearing, the commissioner was not able to determine whether the requirements of the section were met, and simply assumed that they were.

[5] The third respondent (Department) opposes the application on two broad grounds. Firstly, that the jurisdictional ruling was correct

and thus not reviewable. Secondly, that the review application is misconceived because the applicant’s remedy lies in seeking

reinstatement in terms of section 17(3)(b). This is premised on the antecedent contention that even if the requirements of section

17(3)(a)(i) were not met, there would still be no dismissal (which would effectively render the review application futile).

The context

[6] In a letter dated 26 November 2021, the applicant (a medical doctor) was advised by the acting CEO of the Pietersburg Hospital[3] that following his absence from May 2021 onwards, his employment terminated in terms of section 17 of the PSA.

[7] The applicant, who contended that he only received the letter on 22 February 2022, then referred an unfair dismissal dispute to the bargaining council on 18 May 2022. Given that the referral was made outside of the relevant 30-day period, he applied for condonation, which gave rise to a hearing before the commissioner.

[8] At the hearing, the Department’s representative submitted that a termination in terms of section 17 constitutes a dismissal by operation of law and not a dismissal under the Labour Relations Act[4] (LRA), with the result that the bargaining council lacked jurisdiction.

[9] What followed was the commissioner’s jurisdictional ruling, in which he upheld the Department’s submission, and found that the bargaining council lacked jurisdiction over the applicant’s dismissal dispute. Aggrieved by this, the applicant launched this review application.

The bargaining council’s jurisdiction: is this application misconceived?

[10] It is now trite that the section 17(3)(a)(i) deemed-dismissal provision does not require a decision in order to operate – it operates automatically in terms of the law if the requirements of the section are met.[5] And where they are met, there is no dismissal for the purposes of the LRA and the bargaining council thus has no jurisdiction over an unfair dismissal dispute.[6]

[11] But what about where the section is relied upon in the absence of the jurisdictional requirements being met – can the employee then claim that he or she was dismissed under the LRA, resulting in the bargaining council having jurisdiction over the unfair dismissal dispute? In effect, the Department contends that the answer is “No”, with the result that the review application is misconceived.

[12] The issue is a complex one, over which judgments of this court are split.

[13] In both MEC for Health[7] (per Francis J) and Department of Health[8] (per Prinsloo AJ[9]), this court found that if the requirements of section 17(3)(a)(i) are not met, then a dismissal for the purposes of the LRA ensues over which the bargaining council has jurisdiction. Prinsloo AJ put it as follows in Department of Health:

“[30] It is trite law that the question as to whether the requirements of s 17(5)(a)(i) [now section 17(3)(a)(i)] of the PSA have been met or not, is a factual enquiry and is justiciable by a court of law and/or the bargaining council. If the requirements have been met, the bargaining council will lack jurisdiction to hear the dispute on the basis of s 17(5)(a)(i) of the PSA. If the requirements have not been met, the discharge will not be ex lege and the fairness of the dismissal should be considered.” (Own emphasis.)

[14] In James, Moshoana J found these two judgments to be wrong.[10] The key passages are these:

“[9] To my mind, in an instance where the jurisdictional requirements of section 17 are not met, what becomes is the fact that the law cannot operate. Put it differently, a termination does not occur in law. Where an employer calls into aid the provisions of the section in the circumstances where the jurisdictional requirements are not met, such an employer shall be acting unlawfully and on application of the principle of legality, a court with the necessary jurisdiction may declare that an employee has not been terminated. In such an instance, there is no room for fairness or unfairness of a dismissal let alone an existence of a dismissal within the meaning of the LRA. …” (Own emphasis.)

“[15] For all the above reasons this Court concludes that Francis J and Prinsloo AJ were, with respect, wrong in reaching a conclusion that a commissioner has jurisdictional powers to entertain a termination dispute in an instance where the commissioner has established that the jurisdictional prerequisites of section 17 of the PSA have not been met. On the contrary, where the jurisdictional

requirements are not met, the law has not taken course and available to an employee is a demand to return and if not allowed, approach a Court with competent jurisdiction to issue an interdict or a declarator. Thus, this Court is not bound by those decisions on

application of the stare decisis principle. …”.

[15] Dealing then with an employee’s remedy in terms of section 17(3)(b), Moshoana J went on to find:

“[16] … If an employer disguises the true reason by feigning the operation of the law, once that feign dissipates, what remains is not a dismissal unless it can be demonstrated that there was an overt act by the employer to directly or indirectly terminate an employment contract. In my view an employee faced with the disguise must take advantage of the statutory powers possessed by an executive authority instead of laying a claim for unfair dismissal. In the main, what employees often dispute, in cases of this nature, is the absence. … In terms of subsection 17(5)(b) [now 17(3)(b)] an officer deemed discharged can first report for duty whereafter the relevant functionary may on good cause shown approve the reinstatement.”

[16] In her heads of argument, Ms Masindi (counsel for the Department) relies exclusively on James in support of the Department’s second broad ground of opposition.

[17] At common law, where the jurisdictional requirements of a deemed-dismissal provision are not met, there is no dismissal in law (it being invalid) and the employee remains in the employ of the employer.[11] This is effectively what Moshoana J found in para 9 of James (leaving aside the last sentence) and I have no difficulty with it.

[18] But Moshoana J’s ensuing finding (in the last sentence of para 9) that it follows from this that “there is no room for … [the] existence of a dismissal within the meaning of the LRA” where the requirements of section 17(3)(a)(i) are not met, is, with respect, wrong. It conflates the common law and labour law.

[19] This is so because an invalid / wrongful dismissal at common law, which Moshoana J focused on, nevertheless, qualifies as a dismissal for the purposes of the LRA – the essential reason being that the statutory meaning of “dismissal” is not coloured by the lawfulness or otherwise of the action.[12] Indeed, the purpose of the wide definition of “dismissal” is to extend the LRA’s scope to cover the effective dismissal of employees, irrespective of whether their contracts are lawfully / validly terminated.[13]

[20] Consistent with this, the SCA effectively settled the issue in question in Solidarity.[14] The employee had referred a dismissal dispute to a bargaining council. The commissioner found that it did not have jurisdiction

because the requirements of section 17(5)(a)(ii) (now 17(3)(a)(ii)[15]) had been met, with both this court and the LAC agreeing. In a further appeal, the SCA overturned all three decisions on the basis that the requirements of the section had actually not been met. In a passage that definitively establishes that the consequence of this is that a dismissal (under the LRA) is taken to have occurred, the SCA held:

“[15] … The effect of the council's order was to dismiss the employee's claim (that he had been unfairly dismissed) for want of jurisdiction. Having taken the view that it lacked jurisdiction — erroneously as it now turns out — the council did not enter into the merits. Nor could it. … That it must now do. The matter must thus be remitted to it.”

[21] In terms of section 186(1)(a) of the LRA, a “dismissal” is effected where “an employer has terminated employment with or without notice”.[16] This requires the employer to have engaged in an act that effectively brings the relationship to an end.[17] Any act by the employer which results, directly or indirectly, in the termination of employment will suffice.[18]

[22] As stated above, it is trite that where section 17(3)(a)(i) of the PSA is properly triggered, termination occurs ex lege and not by way of an act / decision of the employer, with the result that there is no dismissal for the purposes of the LRA.

[23] Where, on the other hand, the employer erroneously regards employment as having been terminated in terms of section 17(3)(a)(i) when the jurisdictional requirements have not been met, the employment relationship obviously does not terminate ex lege. Instead, it is effectively terminated (brought to an end) by the employer’s refusal to pay the employee. This was articulated as follows by Murphy AJA in his minority LAC judgment in Solidarity, which carried the day in the SCA:[19]

“[41] Effectively, by terminating the payment of remuneration to the second appellant, albeit on the incorrect categorization of his conduct as a deemed discharge, the third respondent refused the implicit tender of his available services and terminated the contract.”

[24] What remains to consider is Moshoana J’s finding in James that employees who dispute that the requirements of section 17(3)(a)(i) were met, must pursue reinstatement in terms of section

17(3)(b). This would be right if there is no dismissal (under the LRA) when the requirements of section 17(3)(a)(i) are not met, but, as I have shown above, a dismissal does occur in such circumstances. It follows that, in my view, employees are not compelled to pursue the section 17(3)(b) route before processing an unfair dismissal dispute under the LRA.

[25] Reverting to the split in this court’s jurisprudence, it seems to me that it is largely resolved by the higher-ranking judgment of the SCA in Solidarity read together with Murphy AJA’s judgment in the LAC (which although in the minority was effectively upheld by the SCA). These

judgments come down in favour of the judgments of Francis J in MEC for Health and Prinsloo AJ (as she then was) in Department of Health (which she followed in Mohlala[20]) and against the judgment of Moshoana J in James.

[26] In the result, I am not persuaded that the applicant’s review application is misconceived on the bases contended by the Department.

[27] I turn now to deal with the events of the condonation hearing and the details of the jurisdictional ruling, before considering the applicant’s grounds of review.

The events of the condonation hearing

[28] At the condonation hearing, the applicant’s unfair dismissal referral was before the commissioner. In it, the applicant stated,

having made some mention of section 17 of the PSA, that he “vehemently denies that he absconded from his duties” and

asserted that “proper channels were followed when he took leave”.

[29] In advancing his application for condonation before the commissioner, the applicant’s attorney stated that the applicant had continued to render services to the hospital up until 22 February 2022 when he received the termination letter, and that he had been dismissed for absenteeism while he was on duty. She appeared unaware of how section 17 operates and contested the fairness of the dismissal (in the context of dealing with prospects of success) on the ordinary grounds of substantive and procedural unfairness.

[30] In reply, the Department’s representative submitted that it was common cause that the applicant had received the letter of

termination on 22 February 2022, and that his “services were terminated on account of section 17”. In support of this, he made reference to the section 17 termination letter. He then submitted that a section 17 termination is a termination by operation

of law and does not constitute a dismissal under the LRA, and that the applicant’s remedies were either to “show cause why the MEC should not consider reinstating him” or launch a review in the Labour Court. In support of this, he referred the commissioner to a judgment of this court, and concluded by submitting that the bargaining council does not have jurisdiction to deal with section 17 matters.

[31] In her reply, although apparently caught off guard by this, the applicant’s attorney did submit that “our client knows

that he was terminated in terms of section 17 by way of [the] letter that was handed to him … but what we are bringing in front of the council is a referral for an unfair dismissal”. She then went on to address mainly the lack of due process.

The jurisdictional ruling

[32] Turning to the commissioner’s jurisdictional ruling, the commissioner referred to Department of Health[21] in recording that if the requirements of section 17(3)(a)(i)[22] are met, the bargaining council lacks jurisdiction and vice versa. With reference to the same judgment, he also recorded that “the question as to whether the requirements of [the section] have been met or not, is a factual enquiry and is justifiable by … the bargaining council”.

[33] Without more, the commissioner then found that “after having considered the totality of both parties’ submissions, it is my considered view that section 17(3)(a)(i) … applies to the applicant’s dispute”, and accordingly that the bargaining council lacked jurisdiction as the applicant had not been dismissed.

[34] Under the heading “Ruling”, the commissioner held that: the applicant’s main dispute concerns a termination of his contract of employment in terms of section 17(3)(a)(i); “the requirements of [the section] have been met”; and the bargaining council did not have jurisdiction to hear the dismissal dispute because the applicant was not dismissed in terms of section 186(1) of the LRA.

Grounds of review and assessment

[35] The applicant’s grounds of review can be cast as follows. Firstly, the commissioner failed to undertake a factual enquiry into whether the requirements of section 17(3)(a)(i) were met, and simply assumed that they were because the section had been relied upon in terminating the applicant’s services. This, it is contended, constituted a misconception of the nature of enquiry. Secondly, in the circumstances of the matter, in order to determine whether the requirements of the section were met, the commissioner ought to have heard oral evidence, with his failure to do so (and the way he dealt with the matter) allegedly constituting a gross irregularity. Thirdly, on the material before the commissioner, his ruling was clearly wrong.

[36] What the applicant seeks by way of relief, is the setting aside of the ruling and the remittal of the jurisdictional dispute to the bargaining council for a hearing de novo.

[37] It is trite that when it comes to the merits of a jurisdictional ruling, the review test is correctness – in the sense that all an applicant on review need establish is that the decision was objectively wrong (with reasonableness not entering the equation).[23] Another important principle is that in jurisdictional reviews, the court is not bound by the record that served before (in this case) the bargaining council and may admit extrinsic evidence with a view to determining (de novo) the correctness of the commissioner’s decision.[24]

[38] Does this mean that when it comes to jurisdiction, applicants are confined to correctness review either based on the record or evidence presented de novo on affidavit in the review (or a combination of the two)? Put differently, must all jurisdictional reviews be finally determined on the merits by this court, with the result that remittal to (in this case) the bargaining council is not permissible? I do not believe so. While the correctness test is applied when judging the merits of the jurisdictional decision, to my mind, this does not prevent an applicant from seeking to set aside the decision on the grounds of, for example, misconduct or a gross irregularity,

with a view to the jurisdictional dispute being remitted to (in this case) the bargaining council for a hearing de novo. This is the route followed by the applicant, which I consider to be permissible.

[39] Turning to the applicant’s first ground of review, there is merit in it. The only way in which the commissioner could ever have arrived at the decision that the requirements of section 17(3)(a)(i) had been met was not through the mandated factual enquiry, but rather by simply assuming that they had been met because the section was relied upon in terminating the applicant’s services.[25] On what transpired at the hearing, it is simply inconceivable that the commissioner could ever have asked himself whether the applicant

(i) was absent from work (ii) without permission (iii) for in excess of a calendar month. This is so because if he made any enquiry into these requirements whatsoever, he would have realised straightaway that they were clearly contested by the applicant. The LAC has held that commissioners misconceive the nature of the enquiry that they are required to undertake (a species of gross irregularity) when they do not conduct the enquiry properly by asking the questions they ought rightly to have asked to decide the issue in question.[26] That is precisely what the commissioner did.

[40] The applicant’s second ground of review flows from the first ground. If the commissioner had not gone wrong as he did, he should have called for oral evidence in order to determine the factual controversy. By not doing so, he deprived himself (and the parties) of any procedurally fair means by which to determine the matter. The commissioner’s assumption that the (factual) requirements were met was no different to a commissioner making a finding based on inadmissible evidence, which constitutes a gross irregularity.[27]

[41] The applicant’s third ground of review does not equate to correctness review in the typical sense. The contention is not (as I understand it) that the commissioner incorrectly found that the bargaining council did not have jurisdiction, and ought correctly to have found that it did (which would constitute correctness review). It is rather a contention to the effect that – given the events of the hearing and absence of oral evidence – the commissioner could not have found that the requirements of section 17(3)(a)(i) were met, just as much as he could not have found that they were not met. Seen thus, the third ground overlaps with the second ground, which I have upheld.

[42] In the result, I am satisfied that the commissioner’s jurisdictional ruling is reviewable.

[43] A final issue is this. The Department seeks condonation for the late filing of its answering affidavit. The application is unopposed and I am inclined to grant it.

Order

[44] Accordingly, the following order is made:

1. the late filing of the third respondent’s answering affidavit is condoned;

2. the second respondent’s jurisdictional ruling is reviewed and set aside;

3. the jurisdictional dispute involving the applicant’s alleged unfair dismissal is remitted to the first respondent for determination de novo by a commissioner other than the second respondent by way of the hearing of oral evidence;

4. there is no order as to costs.

Myburgh, AJ

Acting Judge of the Labour Court of RSA

Appearances

For the applicant: Adv J Janse van Rensburg instructed by Badenhorst Attorneys (heads of argument drafted by Adv K Kemp)

For the third respondent: Adv T Masindi instructed by the State Attorney

[1] Proc 103 of 1994.

[2] The requirements for the operation of the section (sometimes referred to as jurisdictional requirements) are these: (i) the employee must be an officer; (ii) the employee must have absented himself or herself from official duties; (iii) the absence must be without permission from the head of department or delegated official; and (iv) the period of absence must exceed one calendar

month. See Member of the Executive Council for Health v Khoetha & others (2011) 32 ILJ 647 (LC) (“MEC for Health”) at para 16; Department of Health v Public Health & Social Development Sectoral Bargaining Council & others (2014) 35 ILJ 2166 (LC) at para 29.

[3] It appears not to have changed its name to the Polokwane Hospital.

[4] 66 of 1995.

[5] Member of the Executive Council for Health, North West Province v SA Medical Association & another (2022) 43 ILJ 134 (LAC) at para 22; citing Grootboom v National Prosecuting Authority & another (2014) 35 ILJ 121 (CC) at para 1.

[6] MEC for Health (n 2 above) at para 17; Department of Health (n 2 above) at para 30.

[7] n 2 above at para 17.

[8] n 2 above.

[9] As she then was.

[10] NEHAWU obo James v General Public Service Sectoral Bargaining Council and Others [2021] ZALCJHB 465 (“James”).

[11] See Mamasedi v Chief of South African Defence Force and Others [2024] ZACC 17 at paras 46-47; Steenkamp & others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC) at paras 118, 189 and 192.

[12] Edcon v Steenkamp & others (2015) 36 ILJ 1469 (LAC) at paras 40-41; James & another v Eskom Holdings SOC Ltd & others (2017) 38 ILJ 2269 (LAC) (“Eskom”) at para 25; SA Post Office Ltd v Mampeule (2009) 30 ILJ 664 (LC) at para 23.

[13] Eskom (n 12 above) at para 26.

[14] Solidarity & another v Public Health & Welfare Sectoral Bargaining Council & others (2014) 35 ILJ 2105 (SCA).

[15] The judgment applies equally to section 17(3)(a)(i), because as the SCA explained in para 13, “section 17(5)(a)(ii) [now section 17(3)(a)(ii)] is not intended to provide for a deemed discharge by operation of law whenever an employee assumes other employment. That subsection, which merely provides for the one calendar month envisaged in sub-para (i) to be abridged if certain requirements are met, is not a self-standing provision.”

[16] It is noteworthy that in 2014, the section was amended to replace “a contract of employment” with “employment”. This amendment is in keeping with the findings of the court in 'Kylie' v CCMA & others (2010) 31 ILJ 1600 (LAC) and Discovery Health Ltd v Commission for Conciliation, Mediation & Arbitration & others (2008) 29 ILJ 1480 (LC), amongst others, that confirmed that a valid contract of employment is not a prerequisite for a lawful employment relationship.

[17] National Union of Leather Workers v Barnard NO & another (2001) 22 ILJ 2290 (LAC) at para 23.

[18] SA Post Office (n 12 above) at para 6.

[19] Solidarity & another v Public Health & Welfare Sectoral Bargaining Council & others (2013) 34 ILJ 1503 (LAC) at para 41.

[20] Public Servants Association of SA on behalf of Mohlala v Minister of Home Affairs & others (2019) 40 ILJ 415 (LC) (“Mohlala”) at para 32.

[21] n 2 above.

[22] He throughout referred to the old section 17(5)(a)(i). For ease of reference, I have corrected this in quoting his findings.

[23] SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others (2008) 29 ILJ 2218 (LAC) at para 41.

[24] City of Tshwane Metropolitan Municipality v SA Local Government Bargaining Council & others (2012) 33 ILJ 191 (LC) at para 5.

[25] This in line with the submission made by the Department’s representative at the hearing, which was to this effect: given that the applicant received the letter of termination and that it reflected a section 17 termination, it followed axiomatically that there was no dismissal and thus no jurisdiction.

[26] Xstrata SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers on behalf of Masha & others (2016) 37 ILJ 2313 (LAC) at para 11.

[27] Matsekoleng v Shoprite Checkers [2013] 2 BLLR 130 (LAC) at para 59.