Acting under the provisions of s 158(1)(h) of the LRA the LC ordered the employer to decide an application for reinstatement in terms of s 14(2) of the Employment of Educators Act. The employee was deemed to have been dismissed but her representations for reinstatement had been ignored for four years.
PSA obo Rousseau-Geduld v Head of Department: Department of Education, Northern Cape (C986/14) [2017] ZALCCT 10 (22 March 2017) per AJ Steenkamp J.
Excerpts without footnotes
Introduction
[1] This is an application in terms of s 158(1)(h) of the LRA[1] to review and set aside a decision and the refusal or neglect to take a decision, respectively, of the State as employer, in the guise of, respectively, the head of department of education in the Northern Cape; and the Member of the Executive Council for education in that province.
[2] The applicant is the Public Servants Association of South Africa (PSA), representing its member, Ms Raquel Rousseau-Geduld. She is a teacher, or in official parlance, an educator. The Head of Department (the HOD – the first respondent) informed her that she was deemed to have been discharged from service in terms of s 14(1) of the Employment of Educators Act[2], as she had been absent from work for more than 14 days without permission. She made representations to the MEC (the second respondent) to be reinstated. Four years later, the MEC has not responded.
[3] The applicant (i.e. the PSA, representing Ms Geduld) has applied in terms of s 158(1)(h) of the LRA to have the decision of the HOD reviewed and set aside; alternatively, to review and set aside the MEC’s failure to consider and determine the employee’s representations in accordance with s 14(2) of the Educators Act.
. . . . . .
Merits on review
[22] I shall consider the attack on the MEC’s failure to take a decision in terms of s 14(2) of the Public Service Act first.
[23] The delay is simply unconscionable. The applicant made representations to the MEC on 4 February 2013, properly motivated, more than four years ago. All the MEC had to do was to apply her mind to the fact of the employee’s absence and the reasons for it, i.e. the fact that she had been booked off for medical reasons. If the MEC had any misgivings about the nature of the illness, she could have inquired about it or asked for further details. Instead, the current MEC and her predecessors did nothing. The only vague and unsatisfactory explanation the current MEC offers is that she was not the incumbent at the time. But whoever occupied the position at any given time would and should have been aware of the fact that she or he had to act in terms of s 14(2) of the Employment of Educators Act; and at the very least, should have been prompted to act when this application was delivered.
[24] In Grootboom[1] the Constitutional Court, applying a similar provision in the Public Service Act, set aside the “deemed dismissal” of the employee because he had been suspended and was therefore not absent without permission. But the question whether similar considerations apply in this case, where the employee had been booked off sick, does not even arise. The Court need not consider the first aspect of the review application – i.e. the attack on the HOD’s decision – because the HOD must, in the first place, take a decision on the applicant’s submissions.
[25] In MEC for Health, Western Cape v Weder[2] the LAC confirmed the judgment of the court a quo that employees are entitled to proper reasons for a refusal to reinstate them. In the absence of proper reasons, the MEC’s decision not to reinstate was reviewed and set aside. In this case, the MEC has not only refused to give reasons; she has not even taken a decision one way or the other.
[26] In the absence of any decision by the MEC, there is quite obviously no decision to be reviewed; but it is in the interests of justice that the employee be notified of a decision one way or the other. Once that has happened, she will either return to work or she may decide to take that decision on review, should it be an adverse one and should she not be satisfied with the reasons.
Conclusion
[27] Although the relief that I intend to grant was not couched in these terms in the notice of motion, the applicant also asked in the alternative for “such further and/or alternative relief as this honourable Court may deem just”. And in terms of s 158(1)(a)(iii) of the LRA this Court has the power to make any appropriate order, including “an order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of this Act”.
[28] One of the primary objects of the LRA is to promote the effective resolution of labour disputes.[3] That object is supplemented by s 14(2) of the Employment of Educators Act, which leaves it to the MEC to decide whether an employee had shown good cause to be reinstated. In this case, the MEC has simply refused or neglected to do so, contrary to the aim of effective dispute resolution. I deem it to be in the interests of justice that she be ordered to do so expeditiously.