Deemed dismissal and reinstatement

February 1st, 2018
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Ramonetha v Departments of Road and Transport Limpopo and Others (LAC) (unreported case no JA104/2016, 1-11-2017) (Savage AJA) (Coppin JA, Sutherland JA)

By Yashin Bridgemohan

Section 17(3)(a)(i) of the Public Services Act 103 of 1994 (the Act) provides:

‘An employee, other than a member of the services or an educator or a member of the Intelligence Services, who absents himself or herself from his or her official duties without permission of his or her 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 or her last day of attendance at his or her place of duty.’ Section 17(3)(b) of the Act provides:

‘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 or her former or any other post or position, and in such a case the period of his or her absence from official duty shall be deemed to be absence on vacation leave without pay or leave on such other conditions as the said authority may determine.’

Facts

The appellant was employed by the first respondent since 7 April 1993. On 10 February 2011, the appellant left work to consult with a doctor and remained absent for four months without permission. He returned to work on 17 June 2011.

Despite being requested to provide a medical certificate, the appellant failed to do so. Three days after returning to work, the appellant provided a letter from a traditional healer as opposed to a medical certificate.

The appellant continued to work for more than seven months since his return to work and was remunerated for his services. However, on 16 February 2012 the appellant was notified of a misconduct hearing, on the basis that he had committed a contravention of Resolution 1 of 2003 in that he absconded from work for 84 days.

On 29 March 2012, the chairperson found that, as the appellant had been absent for more than a month, he had in terms of s 17(3)(a)(i) of the Act been deemed to have been dismissed from his employment with the first respondent by operation of law.

On 21 May 2012 the appellant received a letter from the Head of the Department stating that due to the magnitude of his unauthorised absence from work his contract of employment was terminated by operation of law.

The appellant then forwarded representations to the second respondent (the MEC) in terms of s 17(3)(b) of the Act. On 3 September 2012, the appellant was informed that the MEC had rejected his representations, that his employment was terminated by operation of law and there was no dismissal as contemplated by s 186 of the Labour Relations Act 66 of 1995 (LRA).

The appellant then referred an unfair dismissal dispute to the General Public Service Sectoral Bargaining Council (GPSSBC) for determination. On 29 October 2012, the GPSSBC found that it lacked jurisdiction to hear the matter given that the appellant had not been dismissed from his employment as contemplated in s 186 of the LRA.

The appellant, thereafter, made application for review to the Labour Court (LC), in terms of s 158(1)(h) of the LRA, of the MEC’s refusal to reinstate him. The LC, accepted that it had jurisdiction under s 158(1)(h) to determine the review application, however, found that the appellant’s employment had terminated by operation of law. The appellant then appealed the LC’s decision in the Labour Appeals Court (LAC).

Issue

The main issue before the LAC was whether the appellant was deemed to have been dismissed by operation of law or whether he was reinstated as the first respondent continued to accept his services and remunerated him for same when he returned to work despite the fact that he had been absent for more than 30 days.

Judgment

The court held an employment contract is an agreement where an employee works for an employer in return for payment. By accepting the appellant’s tender of performance and paying him for his work, the sole conclusion from the facts was that on his return to work, the first respondent implicitly reinstated the appellant to his employment. This was even though the appellant’s deemed dismissal took effect by operation of law in terms of s 17(3)(a)(i) on the date immediately succeeding his last day of attendance at his place of duty and not on any subsequent date decided by the first respondent. As such, it was no longer possible to consider the appellant to be deemed dismissed after he had been reinstated.

The court further held, that the first respondent was – after the appellant’s reinstatement – not thereafter entitled to rely on his deemed dismissal when no further period of unauthorised absence from work had arisen after the appellant had returned to work. As a result of the reinstatement, it was not correct for the first respondent under s 17(3)(a)(i), to provide, in its letter of 21 May 2012, 11 months after the appellant’s return to work, that his contract of employment had been terminated by operation of law.

The LAC accordingly upheld the appellant’s appeal.

Conclusion

This judgment is important as it highlights employees employed in the public sector depending on the facts of each case, may not be deemed to have been dismissed where they return to work after an absence of more than 30 days, where their employer allows them to carry on working and remunerates them for their services rendered. Allowing an employee to carry on working essentially amounts to reinstatement. An employee who is dismissed in these circumstances may make application to the LC in terms of s 158(1)(h) of the LRA to have the deemed dismissal reviewed and to be reinstated.

Yashin Bridgemohan LLB (UKZN) PG DIP Labour Law (NWU) is an attorney at Yashin Bridgemohan Attorney in Pietermaritzburg.

 This article was first published in De Rebus in 2018 (Jan/Feb) DR 45.

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