Employment law update – Deemed dismissal

February 1st, 2018
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Nadine Mather BA LLB (cum laude) (Rhodes) is an attorney at Bowmans in Johannesburg.

In Gangaram v Member of the Executive Council for the Department of Health, KwaZulu-Natal and Another [2017] 11 BLLR 1082 (LAC), the applicant sought to review an alleged ‘decision’ by her employer not to reinstate her after she was purported to have been dismissed by operation of law in terms of s 17(3) of the Public Service Act 103 of 1994 (PSA).

The applicant, an emergency care practitioner, suffered a back injury, which made it difficult to perform her duties. The employer advised her to see a neurosurgeon who recommended that she be confined to office duties at the employer’s head office. She later sustained a further injury and her back condition deteriorated. Notwithstanding her condition, the applicant was instructed to resume her normal duties because another employee, who was allegedly ill, refused to perform her own duties and had cited the applicant in support thereof. The applicant informed her employer that she was unable to perform her normal duties.

The employer then decided that the applicant would only be allowed to perform office duties if she accepted a reduction in pay. The applicant launched an urgent application in the Labour Court (LC) to interdict her employer from reducing her pay, which application was dismissed on the grounds that she had alternative remedies available to her. The applicant then referred an unfair labour practice dispute relating to demotion to the relevant bargaining council (the council).

Pending the unfair labour practice hearing, the employer gave notice to the applicant informing her that since she had been absent from work for more than 30 days without permission, she had been deemed to be dismissed in terms of s 17(3) of the PSA. Section 17(3) of the PSA provides that an employee who absents themselves from their official duties without permission for a period exceeding one calendar month shall be deemed to have been dismissed from the public service on account of misconduct.

The applicant objected to the notice, but, having received no response from her employer, referred an unfair dismissal dispute to the council. At the hearing of the unfair dismissal dispute, the employer argued that the council lacked jurisdiction to entertain the dispute because the applicant had not been dismissed but was deemed dismissed in terms of s 17(3) of the PSA. The arbitrator upheld the jurisdictional point and dismissed the referral. The applicant ‘appealed’ to the Head of Department of the employer (the HOD) to be reinstated. Again, no response from the employer was forthcoming.

The applicant finally launched an application in the LC for an order of reinstatement. In this regard, the employer argued that the matter was premature as no decision had been taken by the HOD regarding the applicant’s appeal for reinstatement and, accordingly, there was no ‘decision taken’ to review. The LC agreed and found that the relief, which the applicant ought to have sought, should have been an order that the HOD be compelled to deliver a decision on her appeal for reinstatement.

On appeal, however, the Labour Appeal Court held that the first inquiry should have been whether the employer had properly invoked s 17(3) of the PSA to ‘deem’ the applicant dismissed. A deemed dismissal can only occur if an employee is absent from work without permission for a period exceeding one calendar month. Since the deemed dismissal takes effect by operation of law, the jurisdictional requirements prescribed by s 17(3) of the PSA must be met before an employee can be said to be dismissed.

The applicant had not reported for duty during this period. However, the uncontroverted evidence was that she was sick and continued, during her absence, to complete sick leave forms with medical certificates attached. In the absence of any response from her employer, the applicant was entitled to assume that her sick leave had been approved. The employer knew of the applicant’s condition and whereabouts, and had continued to pay her salary. In these circumstances, the court held that it would be wrong to conclude that the applicant was absent from work without permission and thus that the jurisdictional requirements prescribed by s 17(3) of the PSA had been satisfied. It would appear that the deeming provision was applied as an afterthought when nothing had been done by the employer to address the applicant’s situation.

The appeal was accordingly upheld and the employer was ordered to reinstate the applicant with retrospective effect.

Applications to interdict disciplinary proceedings

In Magoda v Director-General of Rural Development and Land Reform and Another [2017] 11 BLLR 1149 (LC), the employee, a high-ranking civil servant, was subject to a disciplinary hearing chaired by a senior counsel at the Cape Bar at which she was facing charges of serious misconduct. After testifying for several hours, the employee claimed that she had fallen ill and sought a postponement. The chairperson refused the postponement and ruled that the matter would be decided on the evidence led by the employer and the employee to date. About a week later, the employee sought to continue with her evidence. The chairperson, however, stood by his previous ruling.

The employee launched an urgent application in the LC seeking a review of the chairperson’s procedural rulings and for an order interdicting the disciplinary hearing pending the outcome of the review. After noting that a worrying trend was developing – where the urgent court roll was being clogged up with applications to interdict disciplinary hearings from taking place – the court held that to succeed, the employee was required to show that she had a legal right to review the procedural rulings and to interdict the disciplinary hearing, that she would suffer irreparable harm if the relief was not granted, that the balance of convenience was in her favour, and that she had no adequate alternative remedy.

The employee sought to rely on s 158(1)(h) of the Labour Relations Act 66 of 1995 (the LRA), which provides the LC with jurisdiction to review any decision taken by the state in its capacity as employer. Or, insofar as the decision constituted an exercise of a public power, the employee sought to rely on the doctrine of ‘legality review’. In this regard, the court found that the main difficulty with the employee’s case was that it assumed that the procedural rulings constituted the exercise of a public power, which is a prerequisite for the legality review. While the dismissal of a public servant involves the exercise of public power, the court was not persuaded that the procedural rulings involved the exercise of public power. Moreover, s 158(1)(h) reviews, including the legality review, are only permissible where there is no other remedy available under the LRA. In the circumstances, the employee had labelled a complaint about procedural fairness as one of unlawfulness in order to mount a legality review. This was impermissible.

The court held further that it would in any event only intervene in uncompleted disciplinary hearings in exceptional circumstances, such as where a grave injustice would result.  A gross error in disciplinary proceedings is not in itself sufficient to warrant an interdict. In addition, applications to interdict part-heard disciplinary hearings are at odds with the dispute resolution scheme established by the LRA. The applicant had not pleaded facts from which a grave justice could be inferred and in the event of her being dismissed, she could plead her case and lead evidence that may have been excluded at the disciplinary hearing as a result of the rulings at any subsequent arbitration.

In the circumstances, the court held that the employee had failed to establish the existence of a right to the relief sought and, alternatively, failed to meet the test of exceptional circumstances for intervention by the court in a part-heard disciplinary hearing. The application was accordingly dismissed with costs.

This article was first published in De Rebus in 2018 (Jan/Feb) DR 49.

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