Ramonetha v Department of Roads and Transport: Limpopo and Another (JR1192/2013) [2016] ZALCJHB 89 (11 March 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

CASE NO: JR 1192/2013

In the matter between

M J RAMONETHA

Applicant

and

DEPARTMENT OF ROADS &

TRANSPORT: LIMPOPO

First Respondent

PITSI MOLOTO MEC: DEPARTMENT

OF ROADS & TRANSPORT: LIMPOPO N.O.

Second Respondent

Heard: 09 September 2015

Delivered: 11 March 2016

Summary: Dismissal by operation of law. Refusal for reinstatement appropriate on failure to show good cause after deemed dismissal. Application dismissed.

BALOYI AJ

Introduction

[1] Review and set aside of the decision made by the MEC for Department of Roads and Transport, Limpopo (herein cited as Second Respondent) is the relief sought by the Applicant. The decision in question pertains to the Second Respondent’s refusal to reinstate the Applicant following an appeal to challenge the deemed dismissal consequent to the provisions of section 17(5) of the Public Service Act (Now section 17(3)). The application is brought in terms of section 158(1)(h) of the Labour Relations Act and

is opposed by First and Second Respondents.

Background

[2] The Applicant was the First Respondent’s employee since 07th April 1993 holding a position of traffic officer. On 10th February 2011 while at work he was allowed to depart the workplace in order to see a doctor. He did not report for duty for the period of 84 days since 10th February 2011. When he ultimately reported for duty on 17th June 2011, he was allowed to carry on with his duties while the First Respondent conducted investigations on his absenteeism. On 16th February 2012 he was summoned for disciplinary hearing wherein he was charged with absconding for a period of 84 days. On 29th March 2012 the disciplinary hearing chairperson released her outcome wherein she made no finding on Applicant’s guilt for lack of jurisdiction. The Applicant was according to the outcome directed to make representations to the executive authority.

[3] Consequently, the Applicant lodged an appeal on 23rd May 2011 wherein the salient points were as follows;

i That section 17(5)(a)(i) was only to be applied where the disciplinary code and procedures were not applicable. Since the employer failed to give evidence on any attempt to serve disciplinary hearing notice, it therefore followed that the employer had knowledge that the Applicant was absent due to illness.

ii That the Applicant’s supervisor, Mr Monyepao gave misleading evidence when he said he visited the Applicant once while he had infact done so many times.

iii The mere fact that the Respondent allowed him to work for six months on his return to work indicates that it was common cause that the Applicant was ill.

iv He was unconscious and terminally ill to such extent that he could not speak and think properly for a long period. His failure to ask for permission from the employer should not be blamed upon him as

he was not culpable to do so. The evidence of his traditional healer deserved consideration and should not be undermined.

v Being absent without authority did not necessarily mean that the Respondent was not aware of his illness. He specifically prayed for the setting aside of his termination of employment by operation of law.

[4] The Second Respondent in turn handed down his representation decision on 03rd September 2012 which confirmed the Applicant’s termination of employment and went on to dismiss the appeal. Central to his decision is that he was not satisfied with the reasons advanced for the Applicant’s absence.

The main concern being the Applicant’s failure to complete leave forms to be accompanied by supporting documents in the form of sick notes. He considered the evidence tendered by the traditional healer and found same not satisfactory for non-disclosure of further details bar the taking of the Applicant to the grave yard to appease the ancestors which brought about his healing. The Second Respondent further remarked about a proper medical certificate to be the one issued by a practitioner belonging to the health professional bodies as against that of African Dingaka Associations.

[5] In challenging the Second Respondent’s decision before this Court the Applicant relied on the following grounds;

“4.5.1 My absence during the relevant period does not constitute abscontion. (sic)

4.5.2 The First and Second Respondent incorrectly determined that my absence constituted absconsion.

4.5.3 As a direct consequence of the aforesaid the First and Second Respondents irrationally interfered that had no intention to return to my employment. (sic)

4.5.4 Section 17(3)(a)(i) of the Public Service Act 1994 was implemented without the factual basis to support the implementation thereof.

4.5.5 The First and Second Respondents acted ultra vires in implementing section 17(3)(a)(i) of the Public Service Act, 1994.”

[6] The Applicant further argued that the Second Respondent committed gross irregularity by not applying his mind to Applicant’s representation as he referred to what transpired during the disciplinary hearing.

Furthermore, so argued the Applicant, the First Respondent waived its entitlement to rely on section 17(3)(a)(i) by allowing the Applicant to commence with his duties after such absenteeism and remunerated him for the services rendered. On this note the Second Respondent’s decision is not that of reasonable decision maker. The Second Respondent failed to draw difference between section 17(3)(a)(i) and 17(3)(b) in that he considered himself as appeal authority and decided the matter as authority of first and final instance at the same time.

[7] The Respondents contended that the parties’ conduct after the dismissal by operation of law had no effect since the dismissal did not take place at the employer’s instances. The permission to leave the work place to consult the doctor cannot be used to cover the 84 days period of absence. The Respondent relied on Nkopo v Public Health and Welfare Bargaining Council and Other 2002 23 ILJ 520 LC and MEC, Public Works Northern Province v CCMA 2003 BLLR 1027 LC in support of their submission that the deemed dismissal takes effect by operation of law which is not within the sphere of Labour Relations Act requiring action from the employer.

Evaluation

[8] It would seem that the Applicant’s case is based on whether section 17(3) is applicable in instances where a disciplinary hearing route was initially taken. According to the Applicant section 17(3) should not apply. If one is to follow the Applicant’s reasoning, it would mean that resolving the dispute by way of arbitration will be the correct approach. This is simply because the arbitrator will be required to determine the fairness of the dismissal imposed following a guilty finding. In this regard the remedy available to the Applicant was to challenge the Bargaining Council’s jurisdictional ruling by way of review. The Applicant did not do so, presumably for the reason that the termination of his employment came as a result of operation of law. It is therefore logical that the Applicant seeks a review of the Second Respondent’s decision instead of the jurisdictional ruling.

[9] The cumulative effect of the prevailed circumstances is that the Applicant’s dismissal did not come as a result of guilty

finding. The disciplinary hearing chairperson directed that the representation should be made to the executive authority. As a result, there could be no further argument as to the final election in dealing with Applicant’s absenteeism that is the Respondent’s reliance on the operation of law. The answer to whether section 17(3) is applicable is simply in the affirmative.

[10] In Department of Transport, North West Province v Sebotha No & Others[1] the Court per Molahlehi J clearly dealt with the issue of election and held as follows in paragraph 12:

“12…It needs to be emphasized that a reading of these cases indicates very clearly that when faced with a case involving absence from work by an employee in excess of 30 days, the employer has an election of either invoking the provisions of s17(5)(a)(i) or directed otherwise. The employer may instead of invoking the provisions of s17(5)(a)(i) of the PSA invoke the provisions of the Labour Relations Act 66 of 1995 (the LRA). Where an employer invokes the provisions of s17(5), the employment relationship is terminated by the operation of law and can therefore not be said to be termination in terms of s186 of the LRA. Thus in this instance the bargaining council or the CCMA’s jurisdiction will be ousted by the deeming provisions in s17(5)(a)(i) of PSA. If the employer elects to institute disciplinary proceedings and ultimately dismisses an employee who absented himself or herself without authority for a period in excess of 30 days then in that instance the provisions of s186 of the LRA would apply and the CCMA or the bargaining council would accordingly have jurisdiction.”

[11] The Applicant’s approach to this Court for review of the Second Respondent’s decision, (which this Court has jurisdiction to determine) is definitely the correct approach in the light of the First Respondent’s real position regarding the Applicant’s

dismissal. The facts in Sebotha’s case are slightly different to the current matter in terms of sequence of events. In the said case the employer elected to rely on operation of law after the completion of disciplinary process which resulted in a dismissal that was found to be unfair on arbitration. In this instant case the reliance on operation of law came to the fore without any finding on Applicant’s guilt. Certainly I find no reason to suggest that section 17(3) does not apply.

[12] I now turn to the review application of a decision confirming the deemed dismissal and/or refusal of Applicant’s reinstatement.

According to the Applicant his absence during the relevant period does not constitute absconding. The First and Second Respondent

had therefore incorrectly determined that his absence constituted absconsion. On this point it needs to be mentioned that the review before this Court is in challenge of the Second Respondent’s decision which I was tirelessly referred to. Such decision regrettably does not contain a finding made by the First and Second Respondents that his absence amounted to absconsion. This ground effectively fails. Similarly the ground that the First and Second Respondents irrationally inferred that the Applicant had no intention to return to his employment stands to fail for the same reason. It cannot be ignored that the Second Respondent made his decision based on whether a good cause was shown to persuade him to reverse the dismissal which took effect by operation of law.

[13] The Applicant’s further contention is that section 17(3)(a)(i) was implemented without factual basis. In showing such good cause the Applicant basically relied on the fact that his traditional healer testified and that he was allowed to resume his duties upon reporting for duty after his lengthy absence. The Second Respondent in his decision saw no sufficient grounds to prove that the absence was due to illness as there were no supporting documents placed before him to support the allegation for such lengthy absence. In my view the Second Respondent does not seem to have rejected the evidence of the traditional healer, in fact he found same to be insufficient as there was no elaboration on the nature of treatment administered except for a single visit to the grave yard. In essence the Applicant failed to account for the 84 days of absenteeism and the Second Respondent cannot be faulted for this.

[14] As to the fact that he was allowed to resume his duties upon reporting in June 2012, I agree with the First and Second Respondent’s argument that the conduct of the parties post the dismissal by operation of law cannot in anyway reverse the dismissal that has taken place. In Du Toit v Minister of Safety and Security and Another[2] the Supreme Court of appeal held that the police officer’s deemed discharge following prison sentence cannot be undone by

extinction of conviction by granting of amnesty. The following was said at paragraphs 16 and 17.

“16 In my view the Amnesty Act contains no indication that the legislature intended s20(10) to operate retrospectively so as to undo consequences that came into effect before the granting of amnesty. To interpret the section to be retroactive would have far reaching financial and other effects as is illustrated by the present case where the appellant had not rendered any service to the SAPS for years and where another person had been appointed in his post. Such an interpretation would probably affect many other contracts and statutory relationships to the potential detriment of people who had not committed any wrong. It seems to me highly unlikely that the legislature intended such a result in legislation aimed at improving future relationships.

17 I therefore conclude that 20(10) does not affect consequences that came into effect before the granting of amnesty. In the result the discharge of the Appellant from the SAPS was not reversed by the granting of amnesty to him.”

[15] The effect of this principle as enunciated in Du Toit’s case, is that any working relationship after the discharge cannot in the presence of legislative provisions for the deemed dismissal be considered as reversal of what the legislative provisions have given effect to.

[16] The Applicant considered the First and Second Respondent as having acted at ultra vires in implementing section 17(3)(a)(i) of the Public Service Act. In the context of this matter, acting ultra vires is basically exercising of powers which a decision maker does not have. It would seem that the Applicant viewed the Second Respondent as an appeal authority over the outcome of disciplinary hearing. This cannot be the case as the disciplinary hearing chairperson did not make a finding against him. The Applicant himself in his appeal sought the setting aside of the termination of contract by operation of law wherein he specifically concluded in paragraph 28 of the said appeal as follows;

“28 I humbly request the MEC to set aside the application in terms of section 17(5)(a) termination of contract by operation of law hence it was used improper”.(sic)

[17] There is no merit in this ultra vires ground and is also bound to fail as the very Second Respondent in his capacity as MEC was the relevant person with such executive authority to make the decision confirming the said deemed dismissal.

[18] Since the grounds of review set out in section 145 of the Labour Relations Act are applicable in reviews filed under section 158(1)(h), the Applicant further moved for a finding on unreasonableness of the Second Respondent’s decision to confirm the deemed dismissal. On whether the Second Respondent had applied his mind on issues placed before him, it is of high importance to visit key submissions made by the Applicant in his appeal. The Applicant claims that his supervisor, Mr Monyepao, visited him many times, as result the First Respondent gave a misleading account by claiming lack of knowledge on his whereabouts and the reason for such absence. This is very much inconsistent with his other submissions within the same appeal namely:

“16. he was unconscious and taken to the traditional doctor, he could not speak or think properly for a long time:

17. he was terminal ill his mental status was not good, she had applied some rituals process and he later responded well.” (sic)

[19] It goes without hesitation that any decision maker with such averments placed before him, a call for supporting evidence is

warranted and in this instance the Second Respondent anticipated seeing documents in the form of sick notes. Lack of particularity to the treatment administered as picked up from the traditional healer’s evidence, certainly failed to take the Applicant’s case off the ground. I do not find any reason that the Second Respondent’s decision was on this note unreasonable.

[20] In Conclusion, I am inclined to find that no case has been made for the relief sought. The application falls to be dismissed.

As to costs there is no future relationship to be nurtured between the parties as the matter stands. There is no reason why the costs should not follow the result.

[21] In the premises the following order is made;

21.1 The application is dismissed with costs.

___________________

Baloyi AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. C Goosen

Instructed by: Thaphelo Kharametsane Attorneys

For the Respondent: Adv. M B Matlejoane

Instructed by:

State Attorney (Mr. Mtladi).

[1] (2010) 13 ILJ 97 LC

[2] [2008] ZASCA 125; (2009) (1) SA 176 SCA