Senne v Minister of Health and Another (JR 2275/11) [2016] ZALCJHB 207 (14 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR 2275/11

DATE: 14 JUNE 2016

Not Reportable

In the matter between:

AUBREY MOTSOMI SENNE................................................................................................Applicant

And

THE MINISTER OF HEALTH..................................................................................First Respondent

THE DEPARTMENT OF HEALTH.......................................................................Second Respondent

Heard: 15 December 2015 and 21 January 2016

Delivered: 14 June 2016

Summary: Deemed Dismissal – Section 17 Public Service Act, 1994 – Application for review dismissed. Deemed dismissal found to have arisen.

Mahomed AJ

Introduction

[1] This is an application for review in terms of section 17 of the Public Service Act, 1994 ("the PSA"). I refer to this as the "main review application".

[2] On 15 December 2015, I was confronted with an interlocutory application filed by the Applicant to refer the main review application referred to oral evidence on certain alleged disputes of fact. The following order was made by agreement on the day in relation to the interlocutory application:

‘1. The Rule 11 application for referral to oral evidence is postponed for hearing simultaneously with the set down of the review

application under case number: JR2275/11 to 21 January 2016 at 09H00.

2. The Applicant is to file his Heads of Argument in the Review Application by 11 January 2016.

3. The Respondents are to file their Heads of Argument in the review application by 15 January 2016.

4. Costs in the cause.’

[3] When this matter returned to court on 21 January 2016, I proceeded to hear argument in both the interlocutory and main review application.

[4] As the old idiom goes: ‘Absence makes the heart grow fonder.’ But, this is not necessarily true in the employment context. In the public service, absence may well attract the deeming provisions of section 17(3) of the PSA. This section provides that after a stated period of absence, the employment relationship is deemed to terminate. I have always found this curious as no such provision applies in the private employment sphere even though there is this concerted effort to provide that all employees are subjected to the same employment law jurisdiction and there is a break with the dispensation prior to 1995 with the advent of the current labour relations system.[1]

[5] Be that as it may, our law is now, in any event settled and provides that where the deeming provision comes into effect, the relationship terminates ex lege without a dismissal being effected for the purpose of the Labour Relations Act, 1995 ("the LRA"). This is what is alleged to have happened in this matter by the Respondents, with the automatic termination of Mr Senne's employment.

[6] The Applicant is aggrieved with the decision of the First Respondent in refusing to reinstate him pursuant to section 17 of the PSA and now approaches this court to seek a review of such decision. The test for review in this form of proceeding is also now trite.

[7] A quick review of the law reports will show that this form of dispute is common place, with one section 17 dispute having already had occasion to find audience before the Constitutional Court.[2]

The facts in brief

[8] In mid-2009, the Applicant was appointed as the Head: Deputy Ministers Office. He earned at the time a little shy of R1 million rand per annum. The Applicants representative Mr Moshoana accepted that he was a senior employee and also that he was well paid. He reported to the Deputy Minister of Health.

[9] In mid-2010, the Applicant was advised by the Director-General: Health that he was being "re-deployed"[3] following the death of the Deputy Minister. The Applicant was what is termed a section 12A appointee. This section of the PSA links the appointment of a person to the political term of office of the Executive Authority. In essence, it is a form of a fixed term

contract.

[10] So, it would seem that as opposed to simply allowing the contract with the Applicant to terminate by operation of law, the Second Respondent for whatever reason chose to "re-deploy" him elsewhere. This would be in terms of a new contract.[4] The Applicant was to be "re-deployed" to the position of Chief Director: Governance.

[11] On 31 August 2010, the Applicant was advised in a letter by the DG, that inter alia:

11.1 He was being provided with further tasks;

11.2 He was to vacate the office he occupied in his initial position; and

11.3 He was to arrange with Human Resources for a new office with effect from 1 September 2010.

[12] He was informed in September 2010 that his remuneration would be R790 953 in the re-deployed position.[5]

[13] Aggrieved with the communication of the new position and salary, the Applicant lodged an unfair labour practice claim. This claim was dismissed by the Bargaining Council on a jurisdictional basis. The ruling, however, I am advised has since 2011 been pending on review before this court.[6]

[14] On 12 November 2010 and 14 December 2010,[7] the Applicant addresses letters which can best be described as challenging the authority of the DG. From 11 November 2011, the

Respondents contend that the Applicant absented himself from the workplace and rendered no services. This allegation is baldly

disputed in reply.

[15] When the Applicant arrived at the workplace on 28 March 2011 for an arbitration, in the unfair labour practice claim, he was instructed to report to work through Employee Relations. He did not do so.

[16] It was accepted in argument that it was common cause that the Applicant was not at the workplace from 29 March 2011.[8]

[17] On 13 April 2011, the Applicant received a letter notifying him that the "no work no pay" policy would be implemented arising from his absence from work since 28 March 2011.[9]

[18] On 12 May 2011, the Applicant received a letter from the Second Respondent advising of his termination.[10]

[19] The Applicant, on 15 May 2011, made representations under section 17(3) to the First Respondent.[11] On 27 September 2011, the First Respondent made a decision that the Applicant had not shown good cause for his absence from work without authority.[12]

[20] The application for review was then subsequently filed with this court.

[21] The real area of controversy before me relates to whether the Applicant was in fact "absent" over the material period, for section 17(3) to arise. On this issue, the Applicant sought that the review application be referred to oral evidence.

The interlocutory application

[22] Firstly, there is no substantive application underlying the application for the referral to oral evidence. There is simply a notice of motion. This is not a case of an indigent litigant who is able to draw on the graces of a court in failing to navigate the hurdles of procedural law. Both parties have been legally represented since inception.

[23] In light thereof, it is not necessary that I delve into the other arguments for and against the application for the referral to oral evidence despite me having considered same.

[24] The interlocutory application falls to be dismissed simply on this basis that it is not properly before the Court as contended by the Respondent.

Section 17(3) of the Public Service Act

[25] The relevant portions of section 17 provide:

‘(3)(a)(i) An employee, other than…. who absents himself… from his… official duties without permission of his…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…last day of attendance at his… place of duty.

(ii) If such an employee assumes other employment...

(b) 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…former or any other post or position, and in such a case

the period of his… absence from official duty shall be deemed to be…’

[26] The jurisdictional pre-requisites which must exist for the deeming provision to apply are the following:

26.1 The Applicant must absent himself from the workplace;

26.2 The absence must be from official duties without the permission of the applicable senior authority; and

26.3 The absence must be for a period exceeding one calendar month.

[27] The (alleged) deemed dismissal arose on 30 March 2011. This was in terms of a letter addressed to the Applicant dated 12 May 2011.[13]

[28] Both Mr Moshwana (for the Applicant) and Mr Mosime (for the Respondents) accepted that the (alleged) deemed dismissal would arise on 30 March 2011,[14] when having regard to the entire period of absence of the Applicant.

[29] It was also accepted in argument that where the deemed dismissal arises on 30 March 2011, the Applicant must be absent for the period 28 March 2011 to end April 2011, for the deeming provision to apply.[15]

[30] Mr Mosime was at pains to point out to me that I need only concern myself with the above period (28 March 2011 to end April 2011) in order to determine whether the deeming provision came into effect. This is correct, as section 17(3) refers to a calendar period. The calendar period relied upon in this matter is 28 March 2011 to end April 2011.

The Applicant's whereabouts over the calendar period: 28 March 2011 to end April 2011

[31] A consideration of the papers show that the Applicant did not render any service to his employer over the calendar period. On occasion, he arrived at the workplace and then left. Mr Moshoana submitted that the conduct of his client was enough to preclude section 17(3) from arising as the Applicant was not "absent" from the workplace and was indeed "present".

[32] Mr Mosime relied upon the learned author Grogan in arguing that the facts demonstrated that the Applicant was absent over the applicable period.[16]

[33] It is common cause that the Applicant in April 2011 did not:

33.1 Take up his new office in the Chief Director: Governance position; or

33.2 Produce any work or render services in the position of Chief Director: Governance.

[34] The Applicant contends that he was present at the workplace and that he commuted daily to the office. He also alleged that he had no access to "his workstation". He submitted in his representations to the First Respondent that he had been to the office of the Deputy Minister on various occasions and there was no-one who would open the doors for him to the area which housed the Deputy Minister. Arising therefrom, he had to return home. So, the Applicants argument goes - he was not absent from work but was precluded from rendering services and was present at the workplace. Mr Moshoana went so far and argued that the Applicant had no duty to produce proof that he rendered service or performed any work. This is a bald submission. His argument was focused mainly on seeking to persuade me that ‘presence negates absence, even if no work could be shown to have been done’.[17]

Was the Applicant absent as alleged by the Respondents?

[35] The Applicant, upfront, raised a dispute about his absence. He disputed that he was absent from the workplace. Off course, should the Applicant be correct in his contention than he is entitled to review and have the decision of the First Respondent set aside.

[36] The Respondents clocking system was a piece of evidence that the Applicant placed much reliance upon in seeking to position an argument that the Respondents have not established his absence. The Respondents over-emphasis on the clocking system is misplaced, in my view. It does not behove the Applicant to deny his absence in the form that he does in the application on this issue and thereby seek to create a dispute of fact. Also, the clocking system was not the only evidence relied upon by the Respondents.

[37] I am alive to the fact that the deemed dismissal provision, is a serious inroad into the constitutional right to fair labour practices in that it takes the consideration of the decision into the realm of administrative law and out of the ordinary dismissal review mechanism before the appropriate arbitration for a under the LRA. However, a section 17(3) termination does not preclude access to court. An applicant such as Mr Senne herein must make out case for review on the papers.

[38] The facts before me demonstrate that the kaleidoscope which the Applicant seeks to portray with the interplay between “being present” not amounting to “absence” is nothing short of being artificial. I am satisfied on the papers that absence has been established by the Respondents. An employee earning a salary close to R800 000 per annum must obviously produce work output at the very least, when requested to do so. His failure to do so and excuse is simply not acceptable.

[39] Had the Applicant not been absent as he alleges, he would easily have produced his work-output. I must make this remark that South Africa is a developmental State (which operates in a very competitive global environment) and requires civil servants who wish to assist in breaking us away from the shackles and effects of the Apartheid landscape as quickly as possible and for all our benefit. How the State is to do so, where a senior employee is not able to produce evidence of work for which he is handsomely paid should be a concern to the public. This Court will certainly not place its imperator thereupon.

[40] Also, the Applicant did not take up his new office with the Chief Director. A senior employee who is told to do so must act accordingly. Where he believed that he need not do so, in light of his alleged unfair labour practice dispute, it was open to the Applicant to approach Court for an appropriate order to protect his rights. Until, the Applicant was armed with such an order (of court), he was obliged as an employee to comply with the instruction. He failed to do so and his consequent conduct rendered him being absent from work.

[41] Absent a reasonable excuse[18] for his absence, author Grogan opines that an element of absenteeism is an employee absenting himself from work at a time when the employee was contractually obligated to render services. I align myself with such view. Interestingly, Grogan also opines that ‘while absenteeism usually entails the complete physical abscene of employees from the workplace, it can also occur if employees are at the workplace but not at their actual workstation’.

[42] I put to Mr Moshoana that if I were to uphold his argument that the Applicant was not absent as he was "present" on the facts of this case, would result in a consequence that an employee can easily frustrate the application of section 17(3) on the basis of simply arriving at the workplace on any day during the applicable calendar period and thus break the continuous running of the days. To this, there was no real response from Mr Moshoana.

[43] I, accordingly, conclude that the jurisdictional pre-requisites enabling the deeming provision to come into effect existed. As the review was limited to the issue of absence, it thus follows that the application for review must fail.

[44] The ability to access court under section 17 of the PSA is an important right. Despite the Applicants non-success in the application, I am not inclined to make an adverse cost order against the Applicant. The same is not the case in relation to the interlocutory application. In the circumstances, I make the following order:

44.1 The interlocutory Rule 11 application dated 5 September 2013 is dismissed ("Rule 11 application").

44.2 The application for review dated 11 October 2011, filed under section 158(1)(h) of the Labour Relations Act, 1995 is dismissed ("the review application").

44.3 The Applicant is to pay the costs of the Respondents in the Rule 11 application.

44.4 There is no order for costs in the review application.

44.5 The Registrar is directed to give preferential enrolment to the application under case number: JR959/11 within 6 months of this order.

Mahomed, AJ

Acting Judge of the Labour Court

Appearances:

For the Applicant:

Mr PMW Botha – in the interlocutory application

Mr GN Moshoana – in the main review application

Mohlaba & Moshoana Inc

For the Respondents:

Mr P Maserumule – in the interlocutory application

Adv JKM Mosime – in the main review application

Maserumule Attorneys

[1] Chirwa v Transnet Limited and Others (2008) 29 ILJ 73 (CC) at para 148.

[2] See Grootboom v National Prosecuting Authority and Another [2014] 1 BLLR 1 (CC).

[3] This concept of "re-deployment" fascinates me as the concept has no legal definition but seems to have become part of our law through political decision making in the public sector.

[4] I emphasise that I make this comment in passing. This comment is not part of the ratio of this judgment in any form as this issue is to be fully ventilated by another court under case number: JR959/11.

[5] Pg 58, Court Bundle.

[6] JR959/11.

[7] Pg 63 and 64, Court Bundle.

[8] The period prior thereto is not relevant to the Respondents contention that section 17(3) arises.

[9] Pg 66, Court Bundle.

[10] Pg 69, Court Bundle.

[11] Pg 71, Court Bundle.

[12] Pg 10, Court Bundle.

[13] Bundle of Documents at 69.

[14] Mr Moshwana obviously accepted the date without conceding his argument that there could be no deemed dismissal in the first instance.

[15] That is for two of the section 17(3) jurisdictional pre-requisites to come into effect.

[16] Dismissal, Discrimination and Unfair Labour Practices, 2nd Edition, 2008.

[17] Applicants Further Heads of Argument, at 4 (paragraphs un-numbered).

[18] See Grogan (reference above).