THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT

Not Reportable
Case NO: D581/19

In the matter between:

H.T.	CUMAIO							Applicant

And

MEC DEPARTMENT OF EDUCATION (KZN) 		First Respondent
HOD DEPARTMENT OF EDUCATION (KZN)			Second Respondent

Heard: 02 June 2022

Delivered: This judgment was handed down electronically by circulation to the,parties and/or their legal representatives by email. The date and time for handing-down is deemed on 10 June 2022 at 16h00.

Summary:	Opposed review - Applicant deemed to be dismissed.
Refusal to reinstate set aside and reviewed.
 
JUDGMENT

LAWRENCE AJ

Nature of the Application

[1]	This is a Review Application that has been brought by ·the Applicant in terms of Section 158(1)(h) of the Labour Relations Act 66 of 1995 ("the Act").
'
[2]	The Applicant seeks to review, set aside and correct the decision of the First and/or Second Respondents refusing his Application for reinstatement in terms of Section 14(2) of the Employment of Educators Act 76 of 1998("The EEA").

[3]	The refusal to reinstate the Applicant occurred after he was deemed to have been dismissed with effect from the 29 March 2017 and by operation of law in terms of Section 14(1) of the EEA.
'
[4]	The Applicant additionally contends, in this Application, that the relevant jurisdictional	(acts that are required in order for the First and/or Second Respondents to invoke the deeming provisions in Section 14(1)(a) of the EEA were not present when the First and/or Second Respondents deemed him as dismissed.

The Law "

[5]	It is trite law that the termination of employment under Section 14(1) happens by operation of law and as such the deeming process is not conventionally capable of being impugned under the Act or through judicial review generally.

[6]	However, it follows as a matter of law, that the jurisdictional pre-determinants, necessary to invoke the deeming provision in Section 14(1) of the EEA, have to be present and must be taken into account in determining whether or not the Applicant was absent without permission from the 15 November 2017, as is contended by the First and/or Second Respondents.

[7]	Section 14(2) provides that :

"if an educator, who is deemed to have been discharged at any, time reports for duty, the employer may on good cause shown and notwithstanding anything to the contrary contained in the EEA approve, the, reinstatement of the educator in the educator 's former post or in any other post on such conditions relating to the period of the educator's absence from duty or otherwise as the employer may determine. "

[8]	The decision taken by the First and/or Second Respondents in terms of Section 14(2) on the other hand, is an exercise .of statutory power which is capable of being reviewed under Section 158(1)(h) of the Act. The decision marker must consider all relevant circumstances.

[9]	In MEC for the Department of Education in Western Cape Government vs Jethro the Labour Court held as follows :'"-

"The employer must evaluate all circumstances, to determine if the continuation of the employment relationship has indeed become intolerable as a consequence of-the educators absence. Fairness and proportionality require deliberation - of the appropriateness of permanently severing the employment relationship. The discretion must be exercised with the benefit of informed hindsight. This obliges the employer to investigate and reflect fully on the reasons for the absence and the alternatives to dismissal, which may not have been considered previously by reason of the operation of the deeming provisions.”

[10] As is apparent from the wording of Section 14(2) of the EEA the dismissed employee must show good cause in order for the application for reinstatement to be approved.

[11] In Nyamane vs MEC, Free State Department the Court cautioned against giving a precise meaning to the phrase "good cause" but held that a party is expected to show good cause by:-
“
a.	Giving a reasonable explanation for the default;

b.	Showing that he/she is bona fide in his/her quests  and

c.	He/she has a bona fide claim or defence and, some prospects of success.

The decision-maker must consider all relevant circumstances and it follows if no reasons are giving for r,efusal to reinstate the decision cannot be reasonable.

The Background Facts.

[12]	The Applicant commenced employment as an Educator with the Department of Education /or 14 F·ebruary 1991

[13]	During January 2010, the Applicant's medical specialist submitted a certificate diagnosing him with severe depressive episodes, placing the Applicant off work for a period of approximately three (3) months.

[14]	Further continued periods of absence followed as a result of the Applicant's condition which was ultimately diagnosed as schizo-defective disorder and severe depression.

[15]	This culminated in his normal sick leave being exhausted in 2010.

[16]	As his sick leave was exhausted, the Applicant applied for temporary incapacity leave from 2010 onwards.

[17]	This is available in terms of the policy and procedure on incapacity leave and ill health retirement ("PILLIR"),

[18]	PILLIR applies when an employee has exhausted his/her normal sick	ve and may then apply for temporary incapacity leave.·

[19]	From the documentation submitted it would appear that the Applicant applied for temporary incapacity leave for the period from 2010 to the end of December 2017.

[20]	Certain periods of that leave were approved while certain periods were not approved by the First and Second Respondents

[21]	At a certain point in time the Applicant's salary was frozen and this culminated in him submitting various legal processes at differing times to the High Court, the Labour Court and the Bargaining Council.

[22]	In one of the High Court applications the Applicant specifically sought an order against the freezing of his salary that had been implemented by the Respondents for the period February and March 2016 and September and October 2017.

[23]	The litigation in in the Labour Court included requests for relief to be granted against the failure by the Respondents to process his temporary incapacity applications and for an order to prohibit the Respondents from making deductions from his 'salary 

[24]	There are currently applications before the High Court and the Labour Court, initiated by the Applicant against the Respondents, that are still extant and have not been concluded.

[25]	Ultimately on 12 March 2018, the Second Respondent issued a letter in terms of Section 14(1)(a) of the EEA discharging the Applicant from service backdated to 29 November 2017.

[26]	In terms of the letter the Applicant was advised that he was deemed to be
discharged from service on account of the following:-

"Notwithstanding attempts to locate your whereabouts yo.u have continued to be absent from duty for a period of fourteen (14)' days without furnishing valid application for leave. Your absence since 15 November 2017 is. without permission of the employer and consequently you are deemed to be discharged on account of misconduct with the effect form the 29 November 2017

[27]	It would appear to be common cause.that on	·4 November 2017 the Applicant attended at the Umgungundlovu ·District Office and served a letter on the District Office that he was reporting for duty on the 14 November 2017 and is awaiting a position into which he can be placed.

[28]
,

	Prior to this the Applicant had' written several letters to the Respondents namely, on 7 November 2017 and 8 November 2017, requesting "gainful employment" and tendering. 'his, services.

[29]	ln these letters, the Applicant made reference to the fact that his psychiatrist had recommended that he be provided with an alternative position consistent with his impaired medical condition, which apparently precluded him from continuing to function in his existing position.

[30] The Applicant contends that he reported to the District Office on 14 and 15 November 2017 and signed the register but was offered no assistance and thereafter departed and waited at his residence hoping for a response.

[31]	On the 30 November 2017 the Applicant sent another letter to the Head of the Department stating the following:-

"Judging from the Department's deafening silence on the issue, it is apparent the Department is not willing to co-operate with me. In the interim I will exercise my right to resolve the impasse. Since my specialist psychiatrist has not revoked my medical leave as per-medical certificate issued on 29 September 2017, I have no option but,to take the rest of the leave. I sincerely hope that this rigmarole will have been solved by the time the Department re-opens in January 2018" 

[32]	It would appear that the Applicant was making reference to a medical certificate from Dr Ashwin Valjee which recommends that he be granted sick leave from 1 October 2017 to 30 November 2017 for therapy and convalescence. 
 
[33]	The medical certificate in question however 'specifically states that "the onus of granting this sick leave is legally with the patient's employer “.

[34]	It is unclear whether this certificate 'in question was ever handed to the First and/or Second Respo.ndents".

[35]	However, on 14 N,ovember 2017, it does appear that a certificate was indeed handed to the Respondents dated 6 November 2017 where it is specifically recorded by the·Applicant's psychiatrist that he "not to be placed in his existing position ··as -Education Specialist since this exacerbates his medical condition and that it is recommended that he be given a position which will not require him to drive' a car for long distances."

[36]	This certificate is signed, as receipted by the Respondents, as at the 14 November 2017 which coincides with the date the Applicant attended at the office of the Second Respondent apparently tendering his services.

[37]	On the Respondent's version, after the Applicant arrived at the office on 14 November 2017, he was advised by Legal Services that he has been appointed to a post of Curriculum FET and he must accordingly report there.

[38]	The Applicant denies that he was aware that he was required to take up the post at Curriculum FET after he reported to work on 14 and 15 November 2017 requesting a position commensurate with his medical condition. 

[39]	After receipt of the letter of discharge in terms of Section14 (1) of the EEA, the Applicant made representations through his attorneys, in terms of Section 14 (2) of the EEA, for his reinstatement following his deemed dismissal
,
[40]	In terms of these representations he contended that good cause existed and proceeded to state inter alia that:-

a.	He did not absent himself without permission as he applied for leave and temporary incapacity and completed all the necessary forms demonstrating this;

b.	The Respondents had been advised of his medical reasons for his inability
to perform his duties which was supported by medical information and they were at all material times aware of his tender of services and whereabouts;

c.	The reasons for deeming him dismissed were based upon irrationality, caprice, irrelevant considerations and constituted an abuse of power.
,
d	'He had tendered to work at various times in November 2017 and thereafter;

e.	The process was unfair and also a retaliatory measure against him for his various legal steps.

[41]	Thereafter correspondence was submitted, through the Applicant's Attorneys to the Respondents, on a number of occasions namely, the 30 November 2019, 23 January 2019, 13 February 2019, 22 February 2019, requesting a response to the submission that the Applicant had made for reinstatement.

[42]	When no response was forthcoming the Applicant placed the Respondents on terms to respond by 15 March 2019, failing which litigation would be instituted to secure his rights.

[43]	On 26 April 2019, when no response was forthcoming the Applicant lodged the present Review Application.

[44]	It was only when the First and Second Respondents filed their record on 4 June 2019 that the Applicant became aware this his reinstatement application had been   dismissed on 21 May 2019.

[45]	If regard is had to the letter of the 21 May 2019, it states that the Applicant had failed to provide legitimate and reasonable explanations for his absence and thus the Head of Department has declined his application for reinstatement. 

[46]	On the other hand, in terms of the minute put up as part of the record by the First and Second Respondent's refusin;g reinstatement of the Applicant, it appears that this was "due to the Applicant not reporting for work after the 14 November 2019 after he had been informed to ‘report at a specific place".

[47]	In their answering affidavit; the· Respondents' contend the following, at paragraph 14(c):-

[c]	it is clear that the decision not to approve the Applicant's reinstatement was purely informed by the purposes of PILLIR and the values and principals enumerated in the constituted provisions I made reference to earlier in this affidavit.

[D]	I say so because the Department took into account the fact that the Applicant's lengthy absence from duty, an absence of ten years, without fully complying with the Departments leave provisions and I submit the decision to not reinstate the Applicant is neither arbitrary nor unlawful".

Analysis

[48] The Applicant has contended that not all the jurisdictional facts were present in order for the deeming provisions as set out in Section 14 (1)(a) of the EEA to be invoked.

[49]	It has been contended by the Applicant that the Respondents were fully aware of his whereabouts having regards to the spate of correspondence that had been exchanged, the various legal proceedings and the visits that he had made to the offices of the Respondents.

[50]	What is apparent is that the Applicant does not appear to have received any correspondence from Mr Mabinza or Legal Services formally advising him where he needed to report for duty, (based upon Mr Mabinza;s alleged advises).

[51]	There is accordingly a dispute around whether this communication to the Applicant actually took place or not.

[52]	On the other hand the Applicant tenders no medical certificates which he can show were handed to the Respondents' excusing him from service from the period of the 14 November 2017 until the 29, November 2017.

[53]	In fact, on the Applicant's own version he had sought to tender his services on 14 November 2017 in relation to whatever post the Respondents' may have made available to him     consistent with his reduced capacity.

[54]	In the light of my finding in relation to the refusal by the Respondents' to reinstate the Applicant, it is not necessary for me to decide whether all the jurisdictional facts
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 were present in order for Section 14(1)(a) of the EEA to be validly invoked .
Is the decision of the Respondents not to reinstate the Applicant in terms of Section 14 (2) of the EEA reviewable?

[55] The decision to deem the Applicant dismissed in terms of Section 14 (1) of the EEA is clearly a drastic measure that ought to be reserved for exceptional circumstances.

[56]	This is borne out by the fact that an employee deemed to be dismissed in terms of Section 14(1) of the EEA is given the further opportunity to make representations to demonstrate on good cause why he/she should be  reinstated.

[57]	In the present matter the Applicant was discharged on 12 March 2018 backdated to the 29 November 2017

[58]	It is apparent from the events, as set out above;that the Applicant had a clear and documented history of medical illness which impacted upon his ability to work and in effect he was away from work persistently, and continuously from 2010 up until his discharge from service.

[59]	Clearly the Respondents had an issue with the Applicant's continuous ill health and were of the view that steps needed to be taken to effectively deal with this.

[60]	It is understand able that an employer cannot continue to countenance extended absence  from work, by an employee, for a period of over ten (10) years, and will by necessity have to consider inter alia having the employee declared incapacitated on account of ill health.

[61] 	In terms of Section 12 of the EEA and/or PILLAR there is an exhaustive process·:through which that incapacity process can to be undertaken by the Respondents that would interactively involve the Applicant.

[62]	On the other, if the allegations are that the Applicant has misconducted himself or was abusing sick leave or malingering then misconduct procedures could equitably be invoked by the Respondents that would afford the Applicant a hearing.

[63] In the present matter, there are conflicting versions that are provided by the First and Second Respondents as to why the reinstatement application of the Applicant was refused.

[64] It is clear that the Applicant continued to correspond with the First and Second Respondents even as at the 30 November 2017 where he specifically refers to the "deafening silence by the Department and its failure to resolve the impasse in regard to his request to gainful employment".

[65] When dealing with the Applicant's reinstatement application the First and Second Respondents ought to have taken into account the very al probability that he had
.....   "

 not been made of the requirement that he report’, to Curriculum FET after 14 November 2017.

[66]	 In fact it is not disputed that the Applicant reported for duty at the District office on the 14 and 15 November 2017 and signed the. register and thereafter wrote the letter of the 30 November 2017,without any response being forthcoming from the Respondents.

[67]	If on the other hand there was an issue about the Applicant abusing or exceeding his sick leave or no( complying with the PILLIR processes then that in itself ought to have galvanised the First and Second Respondent to the fact that these were issues that best needed to be dealt with in terms of the incapacity or misconduct procedures:  that are easily available and would permit the Applicant the opportunity to offer an' explanation to be objectively assessed in the matter by an objective decision maker.
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[68]	The Applicant’s representations for reinstatement are in themselves compelling and ought to have properly been taken into account, rationally weighed up with the facts and background information and reason for deeming him dismissed in terms of Section 14(1)(a).

[69]	The reasons provided for refusing the reinstatement of the Applicant also have to be rational and proportional in content.
 
[70]	It is matter of some concern that the Applicant had been away from work for a period in excess of ten (10) years but this by the same token does not give licence to the First and Second Respondent to discard his representations in respect of reinstatement for reasons of expedience or out of frustration.

[71]	In the case of Member of the Executive Council for the Department of Education Western Cape Government vs Jethro N.O and Another (supra)
Appeal Court held that :-

" The failure to assess properly the tolerability or practicability of a continued
employment relationship caused the impugned decision to be rationally disconnected to the relevant information for the purpose of section 14(2) of the EEA . .."

After considering the appellant’s reasons set out in the letter of 17 June 2016 and the fact that the respondent’s absence had caused disruptions and cost to the school, the learned judge correctly stated the purpose of Section 14(2) of the EEA to be efficient removal of employees who had absconded and is intended- to be used sparingly only in cases where the employees is unaware of the whereabouts of an absent employee or if the employee has evinced a clear intention not to return to work.
Instead the appellant, despite knowing full well where the respondent was,
expediently relied on Section 14(1) of the EEA and avoided conducting misconduct or incapacity hearings. This is not an appropriate case for reliance on section 14(1) of the EEA.

The appellant focussed rather on the extent of the respondent's absence and his failure to provide medical evidence of his illness for the period after 1 March 2013 until he is deemed discharge. In the process mitigating factors were ignored or not weighed appropriately, including the respondent's lengthy service, clean disciplinary record and proven ill health before 1

March 2013, as well as the fact that his salary had been stopped in January 2013. The failure to assess properly the tolerability or practicability of a continued employment relationship caused the impugned decision to not be rationally connected to the relevant information and the purpose of Section 14(2) of the EEA.

It was capricious in the circumstances for the appellant in effect to invoke section 14(1) of the EEA and thereby avoid its duty to fairly and proportionately investigate the extent of the respondent’s incapacity, its impact on any misconduct related to his absence and, alternatively short of dismissal.

There is no basis for interfering with the. Labour Court' decision to reinstate the respondent with effect from the date of his deemed discharge.

[72]	The reasons offered by the First and Second Respondents for not reinstating the Applicant, after being aware of the :surrounding circumstances and his representations, cannot with respect be justifiable or rational.

[73]	The reasons provided. by the. Respondents in the Record produced and in their affidavit, in the matter, are conflicting (depending on which document one looks at and indicate that the Respondents had not properly and rationally taken the decision not to reinstate the Applicant.

[74]	It would appear as with the case of Jethro, (supra) that the First and Second Respondents, despite knowing full well where the Applicant was, expediently and without any rational application of the mind, refused his application in terms of Section 14(2) to avoid going through onerous misconduct or incapacity or PILLIR processes,

[75]	Finally it bears mentioning that the issue of Lis pendens had been raised by the First and Second Respondents' Counsel at the outset in regard to the litigation that was instituted by the Applicant in the High Court and Labour Court prior to his deemed dismissal.

[76]	The First and Second Respondents' Counsel abandoned that point, correctly so, as it became apparent that any relief that the Applicant is presently seeking is not associated or relevantly related to the respective causes of action that arise in the High Court and Labour Court matters.

[77]	There is no issue of lis that accordingly arises.

[78]	After considering the facts that have been established in this matter there appears to be no reason why the Applicant should not be reinstated

[79]	This will provide the First and Second Respondents' with the oppurtuinity to inter alia properly assess the Applicant's capacity to work or any issues that need to be investigated and dealt with as possible miscon,duct the part of the Applicant.
[80]	Accordingly I make the following order:

 Order

1.	The First and Second ,Respondents' .decision not to reinstate the Applicant in terms of Section 14(2) of the EEA of 76 of 1998, of the 22 May 2019 is hereby reviewed and set aside;

2.	The Applicant is reinstated with effect from the date of this judgement, to his position as Senior Education Specialist or to such other suitable position as may be permi.ssible in terms of Section 14(2) of the Educators Employment Act 6 of', 1998;
33333vThTHHH
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3 The Applicant is to report for duty as directed by the First and/or Second 'Respondent; and

4	There is no order as to costs.

Lawrence AJ
 Acting Judge of the Labour Court of  South Africa

APPEARANCES:

FOR APPLICANT:		ANGENI NAIDOO LAW FIRM
an.legalpractitioner@gmail.com

FOR RESPONDENT:	ADV NGLJBE INSTRUCTED BY OFFICE OF THE
STATE ATTORNEY (KZN)
FSeedat@justice.gov.za