Solidarity obo Kotze and Another v Public Health and Welfare Sectorial Bargaining Council and Others (JR2636/08) [2010] ZALC 111; [2010] 11 BLLR 1203 (LC) ; (2010) 31 ILJ 3022 (LC) (28 July 2010)

Solidarity obo Kotze and Another v Public Health and Welfare Sectorial Bargaining Council and Others (JR2636/08) [2010] ZALC 111; [2010] 11 BLLR 1203 (LC) ; (2010) 31 ILJ 3022 (LC) (28 July 2010)

The court held that the applicant’s employment was terminated by operation of law in terms of section 17(5)(a)(ii) of the Public Service Act when he assumed alternative employment without authorization while still employed and on suspension. The Bargaining Council lacked jurisdiction to entertain the dispute as there was no dismissal for the purposes of the Labour Relations Act. The applicant’s argument that the deeming provision only applies to abscondment was rejected; the statutory provision applies whenever an employee assumes other employment without approval, regardless of suspension status. The commissioner’s award was found to be reasonable and not vitiated by misconduct,...

Citation
[2010] ZALC 111
Parties
Applicant: Solidarity obo Jacobus Adriaan Hendrik Kotze; Respondent: Public Health and Welfare Sectorial Bargaining Council; Respondent: Commissioner CL Deckens N.O.; Respondent: Department of Health: Free State
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
28 July 2010
Case Number
JR2636/08
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application dismissed with no order as to costs.
Judges
Molahlehi
Legal Topics
Public Service Act Dismissal, Jurisdiction of Bargaining Council, Remunerative Work Outside Public Service, Deemed Dismissal, Review of Arbitration Award
Labour Law Civil Procedure Public Service Act Dismissal Jurisdiction of Bargaining Council Remunerative Work Outside Public Service Deemed Dismissal Review of Arbitration Award

Case Brief

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Parties

Solidarity obo Jacobus Adriaan Hendrik Kotze

Applicant

Public Health and Welfare Sectorial Bargaining Council

Respondent

Commissioner CL Deckens N.O.

Respondent

Department of Health: Free State

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant's termination constituted a dismissal under the Labour Relations Act or was a deemed discharge under the Public Service Act.
  2. 2 Whether the Bargaining Council had jurisdiction to entertain the unfair dismissal dispute.
  3. 3 Whether the commissioner committed misconduct, gross irregularity, or exceeded his powers in issuing the award.

Ratio Decidendi

The court held that the applicant’s employment was terminated by operation of law in terms of section 17(5)(a)(ii) of the Public Service Act when he assumed alternative employment without authorization while still employed and on suspension. The Bargaining Council lacked jurisdiction to entertain the dispute as there was no dismissal for the purposes of the Labour Relations Act. The applicant’s argument that the deeming provision only applies to abscondment was rejected; the statutory provision applies whenever an employee assumes other employment without approval, regardless of suspension status. The commissioner’s award was found to be reasonable and not vitiated by misconduct,...

Court Disposition

Application dismissed with no order as to costs.

Orders

  • The application to review and set aside the arbitration award is dismissed.
  • No order as to costs.