South Medical Association and Another v MEC for Department of Health, North West Province (JR 2580/12) [2013] ZALCJHB 183 (8 August 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No. JR2580/12

In the matter between:

SOUTH MEDICAL ASSOCIATION .....................................................................First Applicant

DR MUTUNZI ...........................................................................................................Second Applicant

and

MEC: DEPARTMENT OF HEALTH

NORTH WEST PROVINCE .....................................................................................Respondent

Heard: 23 April 2013

Delivered: 08 August 2013

Summary: Application to review and set aside decision by MEC: Department of Health, granted.

This is an application by the applicants to review and set aside a decision taken by the respondent under Section 17(3)(b) of the Public Service Act 103 of 1994 ("PSA") in terms of which the respondent refused to reinstate the second applicant after his discharge in terms of Section 17(3)(a) of the PSA.

Background facts

The second applicant was employed as a medical doctor since May 2007. During December 2010 he was scheduled to go on annual leave. The second applicant was stationed at Mafikeng Hospital and he was requested to delay his annual leave as a result of the fact that the hospital was experiencing a shortage of doctors at the time. The second applicant agreed to delay his annual leave,

which was to start at the beginning of December and eventually took his annual leave on 28 December 2011. The second applicant went overseas to visit family abroad and he was scheduled to return to work on 30 January 2012.

In the middle of January 2012 the second applicant contacted the medical manager of the hospital, Dr Mabote, and informed him that the second applicant had some family problems that he needed to attend to and which would result in him not being able to return to South Africa on the date he originally planned. He followed up this telephone conversation with a letter to Dr Mabote

wherein he confirmed the conversation he had earlier in that month. He also confirmed that due to unexpected personal and family

problems he was unable to return to South Africa by the end of January 2012. He further stated in his letter that his period of absence should be considered unpaid leave reckoned from the date that he was supposed to return to work, which was 30 January 2012.

The second applicant received no response to his letter and he remained overseas thinking that the delay in his return to South Africa was in order in light of his conversation and correspondence with Dr Mabote. The second applicant eventually returned to South Africa sometime in April 2012. On 10 April 2012 he returned to work and had a meeting with Dr Mabote. Dr Mabote indicated to him that some of the duties he was doing previously had been allocated to another doctor. He was also informed that he had to wait a couple of days before Dr Mabote could assign further duties to him and that there would be the possibility of his

suspension or his dismissal.

On 12 April 2012, the second applicant met with Dr Mabote once again. At this meeting he was informed that the human resources and the labour relations departments were not satisfied with the explanation he gave about his failure to return to South Africa and his absence from work and that they were considering refusing treating his absence as unpaid leave. Dr Mabote then gave the second applicant a copy of a letter of suspension. The letter of suspension simply advised him not to return to work until further

notice. The second applicant responded to his purported suspension on the same day, in writing, to Dr Mabote. In his response he stated that his suspension was unfair and unlawful. He also mentioned their telephone conversation in January and his letter in that regard that he forwarded to Dr Mabote. He stated that despite all of the evidence that he provided to Dr Mabote, which was accepted by Dr Mabote, he was surprised to have been suspended. The second applicant did not receive any response to his letter of 12 April 2012 wherein he challenged his suspension. Instead, on 20 April 2012, he received a letter from the Acting Chief Executive Officer of the Office of the Provincial Hospital informing him that he was "deemed as having been dismissed from the continued employment of the public service with effect from 1 February 2012." The letter also stated that his deemed dismissal was "occasioned by [his] unauthorised absence in excess of one calendar month as provided for by Section 17(3)(a)(i) of the PSA." The letter went on to state that he may "… in terms of sub-section (3)(b) of the same provision make written representation for the consideration of the office of the Honourable MEC for possible reinstatement and until such date [he] shall, with respect, remained deemed as having been dismissed."

The second applicant, supported by the first applicant, then made representations for his re-instatement in terms of Section 17(3)(b) of the PSA and forwarded the written representations to the respondent on 7 May 2012. In the written representations, the applicants set out in chronological order the events leading up to the second applicant's delay in taking annual leave in December 2011. It further explained his conversation with Dr Mabote during the middle of January 2012 informing him of the family problems the

second applicant was experiencing and that he would not be able to return to South Africa as he had originally planned. The representations go further and informed the respondent that his conversation was confirmed in writing with Dr Mabote. It also stated that when he returned in April 2012 he was originally informed by the medical manager that he would be allocated to a specific department and it was only on 12 April 2012 when he was informed of his suspension. The representations record that it was never the intention of the second applicant to abscond, that he acted in good faith by informing his employer of the unexpected delay in his return to South Africa and that he was under the impression that all was in order and that he would return to South Africa with the intention to resume his duties. After indicating that there was no communication to the second applicant that his actions could be considered as absconding from duty or requiring him to return to work immediately, it concluded that the second applicant should in the result therefore be allowed to return to work.

Whilst waiting on the outcome of the respondent's response to the written representations, the second applicant referred an unfair dismissal dispute to the Public Health and Social Development Sectorial Bargaining Council (the "Bargaining Council"). On 20 June 2012 the Bargaining Council provided a jurisdictional ruling. In its jurisdictional ruling the Bargaining Council confirmed that it had no jurisdiction to hear the dispute as there was no dismissal as contemplated by the LRA because it was statutory dismissal in terms of the PSA.

On 14 July 2012, the applicants received a response to their written representations from the respondent. The response stated the following:

"1. It has come to our attention that whilst the Department was still in a process of considering your representations, you decided to lodge a dispute with the Public Health and Social Development Sectorial Bargaining Council.

2. Your decision to lodge a dispute at this stage has undermined any further efforts of ensuring that your representations are dealt with internally.

3. The Department will not substantively deal with your representations. It is, however, worth noting that the Department has attended to your dispute at the forum that you have chosen ie the Public Health and Social Development Sectorial Bargaining Council ("PHSDSBC"), we will await the outcome and take guidance thereof.

4. In conclusion, you are directed to vacate the hospital premises with immediate effect."

In response to this letter on 20 August 2012, the first applicant confirmed that the Bargaining Council held that it had no jurisdiction because the second applicant was discharged in terms of Section 17(3)(a) of the PSA. The first applicant further stated that

the second applicant is entitled to make representations in terms of Section 17(3) (b) of the PSA for his reinstatement and as such the respondent must consider the representations made by the second applicant. The respondent was accordingly requested to respond to the written representations made by the second applicant.

On 6 September 2012, the respondent replied by simply stating that the matter was receiving attention and that the first applicant would be informed of the outcome in due course. This outcome was eventually forwarded to the first applicant on 7 September 2012. In the outcome, the respondent stated the following:

"1. Please be advised that Dr Mutunzi was given a fair opportunity in terms of Section 17(3)(a) of the Public Service Act, as amended, to make representations with regard to reinstatement arising from his termination by operation of law.

2. Take note that while the process of entertaining his representation was unfolding, a dispute was lodged by SAMA on behalf of Dr Mutunzi with the Public Health and Social Development Sectorial Bargaining Council seeking resolution of the very matter.

3. We confirm that the matter has since been dismissed by the Bargaining Council and as the Department we have no intention to re-open the matter. We presume the same outcome has been served on yourselves.

4. Notwithstanding the above, even where Dr Mutunzi could have not abandoned the internal processes, his deemed dismissal would still not stand on the grounds that his representation did not show good cause for reinstatement as contemplated by the section

under reference."

Review grounds

The applicants are seeking the review of the respondent's decision on the basis that the respondent all together failed to appreciate the enquiry before him. It is the applicant's contention that the respondent did not provide reasons for his decision, he did not have regard to the legal tests set out in the case of De Villiers vs Head of Department: Education, Western Cape Province1 and as such the decision by the respondent was not rational.

Legal principles

The case of De Villiers vs Head of Department: Education, Western Cape Province concerned the application of Section 14(1) of the Employment of Education Act2 ("EEA") which deals with the deemed discharge of educators. Section 14 of the EEA is similarly worded to Section 17 of the PSA. In dealing with Section 14(2) the Court stated the following:

"In considering a Section 14(2) application, in De Villiers vs Minister of Education, Western Cape Province and Another, Davis and Allie JJ held that the employer should be guided by the ordinary principles applicable to arriving at a decision as to whether an employee should be dismissed for misconduct.

Ultimately, the employer should be satisfied that, on account of the employees' absence from work, the employment relationship has irretrievably broken down. As set out in items 3(4) of the Code, it is generally not appropriate to dismiss an employee, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.

As appears from the High Court judgment, a deemed discharge in terms of Section 14(2) should be treated in similar fashion to a dismissal for misconduct as in Section 18(2) of the Act. Schedule 2 of the Act accordingly has application, as does the Code of Good Practice contained in Schedule 8 to the LRA, which is incorporated by reference into Schedule 2 to the Act. The High Court

concluded that:

"… the employer's conduct in exercising his/her discretion in a manner which failed to prevent a sanction of dismissal as provided by Section 14(1) ought to be subjected to the same scrutiny as conduct in terms of Section 18(3)(i). Such conduct is therefore capable of being tested against the Code of Good Practice contained in [schedule] 8 of the LRA."

The governing principles in Item 2 of the Schedule expressly states that discipline is a corrective and not a punitive measure, and that discipline must be applied in a prompt, fair, consistent and just manner. It is in this context that the requirement of "good cause" referred to in Section 14(2) must be read. This would ordinarily mean that unless the employer, having regard to the full conspectus of relevant facts and circumstances, is satisfied that a continued employment relationship has been rendered intolerable by the employee's conduct, the employer should as a general rule approve the reinstatement of the employee. (To hold otherwise would amount to a clear breach of an employee's right to fair labour practices and the right to equality (since educators who are discharged in terms of Section 14(1) would be treated in a manner which grossly departs from the manner in which all other educators charge with misconduct are treated.)

In a more recent case of DENOSA obo N E Mangena v MEC for Department of Health, Western Cape, Steenkamp J dealt with the deemed discharge and application for reinstatement in terms of Section 73 of the PSA in which he refers

with approval to the aforementioned principles set out by Van Niekerk J."3

In a more recent judgment of DENOSA obo N E Mangena vs MEC for the Department of Health, Western Cape4, Steenkamp J quoted with approval the principles laid down by Van Niekerk J in De Villiers5. The case also involved a "deemed discharge" in terms of Section 17(3)(a) of the PSA and Denosha's application on behalf of N E Mangena for her reinstatement in terms of Section 17(3)(b) of the PSA. According to the judgment, after providing the representations which was accompanied by comprehensive written submissions, the MEC issued his decision in terms of Section 17(3)(b) and in doing so provided no reasons.

Steenkamp J accepted that where an applicant is discharged by reason of Section 17(3)(a) and it leaves the applicant with no other remedy available under the LRA, a review under Section 158(1)(h) is appropriate. In the case, after the applicant referred a dispute to the Bargaining Council and the Bargaining Council determined that it did not have jurisdiction to entertain the dispute, then only did the applicant refer the dispute to the Labour Court. Under those circumstances, Steenkamp J found that it had jurisdiction to entertain the matter in terms of Section 158(1)(h).

In evaluating the evidence before him Steenkamp J came to the following conclusions:

"Having regard to the test set out in De Villiers, the decision of the MEC cannot be said to have been rational. It was, on the contrary, irrational and arbitrary.

Firstly, it is difficult to assess whether a decision could have been reasonable and rational when the decision-maker offers no reasons for the decision. In any event, it is apparent that the MEC did not have regard to the applicable test as set out in De

Villiers and confirmed in Weder, ie whether the employee's conduct had rendered her continued employment relationship intolerable. Even in his answering papers before this Court, he persisted with an erroneous version of the test, arguing that the only question is whether the employee was absent from work without permission.

Rationality

On the evidence before him, the MEC's decision could in any event not have been rational. Mangene had an explanation for her absence from work, ie that she had been booked off sick; the MEC plainly disregarded this common cause fact. In those circumstances, his decision to refuse reinstatement without more was arbitrary and irrational."6

In my view, the decision of Steenkamp J in DENOSA is on all fours applicable to the current matter before this Court.

This matter was not opposed by the respondent. There was accordingly no version put up on behalf of the respondent to explain or try and explain the reasons for the decision to refuse reinstatement. It is not acceptable for the respondent to refrain from considering the representations made by second applicant simply because second applicant referred a dispute to the Bargaining Council. At that stage already, in my view, the respondent should have considered the representations made by second applicant in terms of Section 17(3)(b) of the PSA. The fact that a dispute was lodged with the Bargaining Council should have had no impact or effect on the MEC's obligation and duty to consider the representations. To then state that the Department had no intention

to re-open the matter simply because the Bargaining Council dismissed the dispute for want of jurisdiction, is clearly irrational and unreasonable. Finally, the respondent also stated in the correspondence that second applicant's representations did not show any good cause for reinstatement as contemplated by the PSA. This statement by the MEC makes it clear that the respondent failed

to apply the applicable test as set out in De Villiers7 and confirmed in Weder8.

I am satisfied that the second applicant had an explanation for his absence from work and that he kept his employer informed of the reasons for his absence. Had the respondent properly considered the representations made by the second applicant and applied the test, the only conclusion would have been that there were no facts or circumstances that made a continued employment relationship intolerable and therefore his reinstatement should have been approved.

I also find that no purpose would be served to remit the dispute back to the respondent as this will cause undue delay. I am in any event satisfied that all the facts are before this Court. As this matter is unopposed I can see no reason why a reinstatement

order should not be granted in terms of the relief sought in the notice of motion. In the result therefore, the second applicant

should be reinstated to his former position retrospective to 20 April 2012 on the same terms and conditions of employment as

previously pertained without the loss of any remuneration or benefits.

Order

I therefore make the following order:

The decision of the respondent dated 6 September 2012 is reviewed and set aside.

The respondent is ordered to reinstate the second applicant to his former post retrospectively to 20 April 2012, on the same terms and conditions of employment as previously pertained, without the loss of any remuneration or benefits.

There is no order as to costs.

________________________________

VISAGIE AJ

Acting Judge of the Labour Court

APPEARANCES

For Applicants: Mr N B Sibeko, Union Official, South African Medical Association

12010 31 ILJ 1377 LC

2Act 76 of 1998

3Paras 34 to 36

4Case No. C914/11, delivered 14 February 2013

5See paras 34 to 36

6Paras 46 to 48

7Supra

8Weder vs MEC, Department of Health, Western Cape [2012] ZALCCT 35