Solidarity and Another v Public Health & Welfare Sectoral Bargaining Council and Others (442/13) [2014] ZASCA 70; [2014] 8 BLLR 727 (SCA); 2014 (5) SA 59 (SCA); [2014] 3 All SA 550 (SCA); (2014) 35 ILJ 2105 (SCA) (28 May 2014)

Solidarity and Another v Public Health & Welfare Sectoral Bargaining Council and Others (442/13) [2014] ZASCA 70; [2014] 8 BLLR 727 (SCA); 2014 (5) SA 59 (SCA); [2014] 3 All SA 550 (SCA); (2014) 35 ILJ 2105 (SCA) (28 May 2014)

The Supreme Court of Appeal held that s 17(5)(a) of the Public Service Act did not apply to the employee because he was on precautionary suspension and therefore absent from duty with the employer's permission. The assumption of alternative employment did not constitute absence without permission as required by the Act. The court found that the Bargaining Council did have jurisdiction to hear the dispute as a dismissal under the Labour Relations Act, as the termination was not by operation of law but required a disciplinary process. The previous decisions of the Labour Court and Labour Appeal Court were set aside, and the matter was remitted to the Bargaining Council for arbitration.

Citation
[2014] ZASCA 70
Parties
Appellant: Solidarity; Appellant: Jacobus Adriaan Hendrik Kotze; Respondent: Public Health & Welfare Sectoral Bargaining Council; Respondent: Commissioner C L Dickens N.O.; Respondent: Department of Health: Free State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 May 2014
Case Number
442/13
Procedural Posture
Civil Appeal / Appeal From Labour Appeal Court to Supreme Court of Appeal
Outcome
Appeal upheld; previous orders set aside; matter remitted for arbitration.
Judges
Ponnan, Bosielo, Theron, Hancke, Swain
Legal Topics
Deemed Dismissal, Public Service Act, Jurisdiction of Bargaining Council, Suspension and Alternative Employment
Labour Law Civil Procedure Deemed Dismissal Public Service Act Jurisdiction of Bargaining Council Suspension and Alternative Employment

Case Brief

Summary, issues, holding and outcome

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Parties

Solidarity

Appellant

Jacobus Adriaan Hendrik Kotze

Appellant

Public Health & 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 Appeal Court to Supreme Court of Appeal

Legal Issues

  1. 1 Whether an employee on precautionary suspension who assumes alternative employment without permission is deemed discharged under s 17(5)(a) of the Public Service Act.
  2. 2 Whether the Bargaining Council had jurisdiction to entertain the dispute as a dismissal under the Labour Relations Act.
  3. 3 Whether assuming alternative employment while suspended constitutes absence without permission.

Ratio Decidendi

The Supreme Court of Appeal held that s 17(5)(a) of the Public Service Act did not apply to the employee because he was on precautionary suspension and therefore absent from duty with the employer's permission. The assumption of alternative employment did not constitute absence without permission as required by the Act. The court found that the Bargaining Council did have jurisdiction to hear the dispute as a dismissal under the Labour Relations Act, as the termination was not by operation of law but required a disciplinary process. The previous decisions of the Labour Court and Labour Appeal Court were set aside, and the matter was remitted to the Bargaining Council for arbitration.

Court Disposition

Appeal upheld; previous orders set aside; matter remitted for arbitration.

Orders

  • The appeal is upheld.
  • The order of the Labour Appeal Court is set aside and substituted with an order that the appeal succeeds with costs.