Sello v Devisional Commissioner, Human Resource Development, SAPS and Others (JR 1870/2013) [2016] ZALCJHB 347 (8 September 2016)

Sello v Devisional Commissioner, Human Resource Development, SAPS and Others (JR 1870/2013) [2016] ZALCJHB 347 (8 September 2016)

The court found that the first respondent failed to comply with a previous order to consider the applicant's submissions for reinstatement and did not provide any explanation for this non-compliance. The decision not to reinstate the applicant was based on unspecified information from the Academy, with no evidence or reasons provided to justify the refusal. The court held that the first respondent did not apply his mind to the facts and submissions, acted irrationally and arbitrarily, and failed to consider whether the employment relationship had broken down. The applicant's absence was explained and supported by medical evidence, and the respondents were aware of his whereabouts. The...

Citation
[2016] ZALCJHB 347
Parties
Applicant: M E Sello; Respondent: Devisional Commissioner, Human Resource Development, SAPS; Respondent: Commissioner, SAPS Operational and Tactical Academy, Moloto; Respondent: Provincial Commissioner, SAPS Gauteng; Respondent: Safety and Security Sectoral Bargaining Council
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
8 September 2016
Case Number
JR 1870/2013
Procedural Posture
Review Application / Judgment After Hearing on the Papers
Outcome
The decision of the first respondent to refuse reinstatement is reviewed and set aside. The applicant is reinstated in his employment, but not entitled to salary or emoluments for the period of absence. Costs are awarded to the applicant.
Judges
Molahlehi E M
Legal Topics
Public Service Act, Unfair Dismissal, Condonation, Reinstatement, Irrationality, Failure to Apply Mind
Labour Law Administrative Law Public Service Act Unfair Dismissal Condonation Reinstatement Irrationality Failure to Apply Mind

Case Brief

Summary, issues, holding and outcome

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Parties

M E Sello

Applicant

Devisional Commissioner, Human Resource Development, SAPS

Respondent

Commissioner, SAPS Operational and Tactical Academy, Moloto

Respondent

Provincial Commissioner, SAPS Gauteng

Respondent

Safety and Security Sectoral Bargaining Council

Respondent

Procedural Posture

Review Application / Judgment After Hearing on the Papers

Legal Issues

  1. 1 Whether the first respondent's decision not to reinstate the applicant in terms of section 17(3)(b) of the Public Service Act was irrational and arbitrary.
  2. 2 Whether the first respondent applied his mind to the facts and submissions made by the applicant.
  3. 3 Whether the applicant's absence from work constituted grounds for deemed discharge under section 17(3)(a) of the Public Service Act.

Ratio Decidendi

The court found that the first respondent failed to comply with a previous order to consider the applicant's submissions for reinstatement and did not provide any explanation for this non-compliance. The decision not to reinstate the applicant was based on unspecified information from the Academy, with no evidence or reasons provided to justify the refusal. The court held that the first respondent did not apply his mind to the facts and submissions, acted irrationally and arbitrarily, and failed to consider whether the employment relationship had broken down. The applicant's absence was explained and supported by medical evidence, and the respondents were aware of his whereabouts. The...

Court Disposition

The decision of the first respondent to refuse reinstatement is reviewed and set aside. The applicant is reinstated in his employment, but not entitled to salary or emoluments for the period of absence. Costs are awarded to the applicant.

Orders

  • The decision by the first respondent to dismiss the applicant’s application made in terms of section 17(3)(b) of the Public Service Act, 103 of 1994, is reviewed and set aside.
  • The applicant is reinstated in the employ of the respondent on the same terms and conditions as those which governed his employment immediately prior to his deemed discharge, save that the applicant shall not be entitled to receive any salary or emoluments in respect of the period when he was absent from work, being...