By Frans Erasmus and Geraldine Kinghorn

The state, as employer, is immunised against unfair dismissal claims in the realm of deemed dismissal. This is ensured by way of s 14(1) of the Employment of Educators Act 76 of 1998 (the Act) and s 17(3)(a) of the Public Service Act 103 of 1994 (PSA).

In this short article, we will attempt to provide a clearer understanding of this form of dismissal that operates outside of the Labour Relations Act 66 of 1995 (LRA), sch 8 thereof and the Department of Public Service and Administration Resolution 1 of 2003. The role of the shop steward is vital throughout this process. The employee will in all likelihood be unaware of his or her rights in this regard and will rely heavily on the guidance of the shop steward and legal representatives.

Private sector

Deemed dismissal is not found in the private sector (even if there is such a provision in the contract of employment) as held in Jammin Retail (Pty) Ltd v Mokwane and Others [2010] 4 BLLR 404 (LC). A hearing needs to precede the dismissal.

Legislation

On 1 April 2008 the PSA was amended and the subsections of s 17 changed. Section 17(3)(a) of the PSA states that an employee is considered deemed dismissed if he or she absents himself from official duties without permission of the head of the department for more than a calendar month from his place of work.

Section 14(1) of the Act states similar provisions except that the period is 14 consecutive days. If these three requirements (conditions precedent) are present, then the contract of employment has by operation of law (ex lege) been terminated. In Phenithi v Minister of Education and Others 2008 (1) SA 420 (SCA), the court held that the Act mentioned (the Employment of Educators Act), creates a mechanism to infer desertion. The letter of dismissal is merely a notification of that result.

Employer’s enforcement of deemed dismissal

The employer needs to ensure beforehand that the abovementioned conditions precedent are met before issuing a deemed dismissal letter. This implies that the employer needs to gather facts surrounding the absence before considering whether the three requirements were met or not.

What to do with a deemed dismissed employee

Shop stewards need to actively assist the employee in immediately reporting back to duty (in person), as held in PSA obo Van Der Walt v Minister Public Enterprise and Another [2010] 1 BLLR 78 (LC) and in terms of s 17(3)(b) of the PSA or s 14(2) of the Act. The onus shifts to the employee to show good cause for reinstatement, as stated in MEC: Department of Education Gauteng v Msweli 2012 JDR 1476 (LC). Written representations in the form of an application for reinstatement, needs to be drafted showing good cause for the absence. It must be shown that the absence was not wilful and that the employee always intended to return as stated in Grootboom v NPA and Another [2010] 9 BLLR 949 (LC) at 56. Annex an original document as proof of the absence. The application for reinstatement must be submitted to the head of department. Regular written follow-ups should be conducted as to its progress. Retain a properly served copy of the application for the union’s record.

Reinstatement

In De Villiers v Head of Department: Education, Western Cape Province 2010 31 ILJ 1377 (LC) the test for reinstatement was stated by Van Niekerk J as follows: ‘… 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 …’.

Employer’s refusal to reinstate

In the event that the employer decides not to reinstate in terms of the application for reinstatement; the employee may refer the matter to the bargaining council and thereafter on review to the Labour Court. This track was laid down in the PSA obo Van Der Walt case.

Employer’s reasons for a decision not to reinstate

In the PSA obo Smit v Mphaphuli NO and Others (LC) (unreported case no C742/11, 16-4-2014) the court referred to Weder v Member of the Executive Council for the Department of Health, Western Cape [2013] 1 BLLR 94 (LC) at 35, wherein it was stated: ‘… it is difficult to assess whether a decision could have been reasonable and rational when the decision maker offers no reasons for the decision …’. The court also stated that: ‘The same must hold true of the MEC’s decision. Without him having given any reasons for his decision, it cannot be said to be reasonable. How can it be ascertained if it was reasonable, if he gave no reasons?’ The court further stated: ‘And, as Cora Hoexter notes, “the giving of reasons is commonly regarded as one of the more fundamental requirements of administrative justice and an important component of procedural fairness”…’.

Criteria for review

Section 158(1)(h) of the LRA empowers the Labour Court to review the actions by the state in its capacity as an employer. This was held in both the De Villiers and Mogola and Another v Head of the Department: The Department of Education NO [2012] 6 BLLR 584 (LC) cases.

Administrative action

The Constitutional Court held in Gcaba v Minister of Safety and Security and Others [2009] 12 BLLR 1145 (CC) that the dismissal of a public servant is not an administrative act subject to review, if the cause of action and the remedy is covered by the LRA. In the matter of De Villiers, it was stated that the conduct of the state as employer will generally not constitute administrative action. Departure from this rule is justified in specific cases under specific conditions. In the Mogola matter the court held that the decision by an member of executive council (MEC) (not to reinstate) constitutes administrative action, which is reviewable under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) or s 158(1)(h) of the LRA. The legislature could not have intended to deprive employees of a remedy if the discretion afforded to the MEC is improperly exercised. Even if the Labour Court cannot apply PAJA, it has jurisdiction to review administration relating to employment in terms of s 158(1)(h) of the LRA. The court stated that had the MEC applied his mind he would have realised that the conditions precedent for the invocation of the act were not present.

Other employment while on suspension

There is a prohibition on employees to take up remunerative employment while on suspension. In such an instance the employee will be deemed dismissed as stated in Solidarity and Another v Public Health and Welfare Sectoral Bargaining Council and Others [2013] 4 BLLR 362 (LAC).

Frans F Erasmus LLB (UFS) is an attorney, notary, conveyancer and mediator in Johannesburg. Geraldine Kinghorn LLB (Unisa) is an advocate at the Johannesburg Bar.

This article was first published in De Rebus in 2015 (March) DR 24.