Solidarity and Another v Public Health and Welfare Sectoral Bargaining Council and Others (JA 71/10) [2013] ZALAC 2; [2013] 4 BLLR 362 (LAC); (2013) 34 ILJ 1503 (LAC) (22 January 2013)

Solidarity and Another v Public Health and Welfare Sectoral Bargaining Council and Others (JA 71/10) [2013] ZALAC 2; [2013] 4 BLLR 362 (LAC); (2013) 34 ILJ 1503 (LAC) (22 January 2013)

The majority held that the employee, while on suspension, assumed other employment without permission, which under section 17(5)(a)(ii) of the Public Service Act amounted to being absent from duty and triggered automatic discharge by operation of law. The Bargaining Council therefore lacked jurisdiction to entertain the dispute, as there was no dismissal within the meaning of the Labour Relations Act. The employee remained bound by his contract during suspension and was not free to seek other employment. The dissenting judgment argued that the assumption of other employment did not fulfill the conditions for deemed discharge, as the employee was absent with permission due to suspension,...

Citation
[2013] ZALAC 2
Parties
Appellant: Solidarity; Appellant: Jacobus Adriaan Hendrik Kotze; Respondent: Public Health and Welfare Sectoral Bargaining Council; Respondent: Commissioner C L Dickens N.O; Respondent: Department of Health: Free State
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
22 January 2013
Case Number
JA 71/10
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award
Outcome
Appeal dismissed by majority; dissent would have upheld the appeal.
Judges
Tlaletsi, Waglay, Murphy
Legal Topics
Public Service Act, Deemed Discharge, Unfair Dismissal, Jurisdiction of Bargaining Council, Repudiation of Contract
Labour Law Civil Procedure Public Service Act Deemed Discharge Unfair Dismissal Jurisdiction of Bargaining Council Repudiation of Contract

Case Brief

Summary, issues, holding and outcome

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Parties

Solidarity

Appellant

Jacobus Adriaan Hendrik Kotze

Appellant

Public Health and Welfare Sectoral Bargaining Council

Respondent

Commissioner C L Dickens N.O

Respondent

Department of Health: Free State

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award

Legal Issues

  1. 1 Whether the Bargaining Council had jurisdiction to entertain the unfair dismissal dispute.
  2. 2 Whether the employee was dismissed or discharged by operation of law under section 17(5)(a) of the Public Service Act.
  3. 3 Whether assuming other employment while on suspension constitutes absence without permission and triggers deemed discharge.

Ratio Decidendi

The majority held that the employee, while on suspension, assumed other employment without permission, which under section 17(5)(a)(ii) of the Public Service Act amounted to being absent from duty and triggered automatic discharge by operation of law. The Bargaining Council therefore lacked jurisdiction to entertain the dispute, as there was no dismissal within the meaning of the Labour Relations Act. The employee remained bound by his contract during suspension and was not free to seek other employment. The dissenting judgment argued that the assumption of other employment did not fulfill the conditions for deemed discharge, as the employee was absent with permission due to suspension,...

Court Disposition

Appeal dismissed by majority; dissent would have upheld the appeal.

Orders

  • The appeal is dismissed.
  • Each party is to pay its own costs.