Transcript Slide 1

CASE LAW UPDATE
Public Manager’s power and duty to set aside
wrongful acts
MEC, Dept of Education, KZN v Khumalo & Another
• Two employees unlawfully promoted: one by the selection panel; the other
via a settlement agreement
• MEC brought application ito s 158(1)(h) to review and set aside the “acts” of
the officials who had promoted the 2 employees – ie set aside the
promotions
• MEC submitted that the application was the only way of undoing the
illegality as the MEC was functus officio
• Meaning of funtus officio = once an official decision is made, people are
entitled to rely on these decisions and to be protected against injustice
flowing from officials changing their minds and revoking or revisiting the
decision. Conversely, if allowing the decision to stand results in injustice, it
must be revoked or revisited
LC held:
• LC had jurisdiction to determine matter because the application was brought
ito s158(1)(h) which gives the LC the power to review any decision taken or
any act performed by the State in its capacity as employer.
• However, there was no need for the MEC to bring such an application and
her reliance on functus officio for failing to reverse the unlawful promotions
was no justification for launching the review application because:
• The doctrine of functus officio did not bar the MEC, at her own instance,
from reversing wrongful and unlawful decisions or decisions based on
ignorance; s195 of the Constitution obliged her to eliminate illegalities in
public administration
• The MEC, as head of the department, ought, at her own instance, to have
revoked the unlawful promotions as soon as she became aware of them
• Uncovering and correcting irregularities is typically a managerial function,
performed in the ordinary course of management. Many [government]
departments have reversed their irregular decisions without applying to
Court for assistance
• In this dispute s 33 of the Constitution and PAJA are not engaged because,
like dismissal, promotion in the public sector is not an administrative act but
an employment related act justiciable through the designated structures and
procedures of the LRA
• Promotions in the public sector are effected ito the PSA. However the PSA
relies on the LRA for the machinery to test the fairness and propriety of
appointments and promotions
• The LC does not interfere in disputes settled by agreement. To do so would
undermine the labour dispute resolution system which is premised on
conciliation and settlement of disputes. However, if the settlement
agreement was concluded in circumstances where the official had no right to
conclude such an agreement because the promotion would be unlawful, the
agreement is a nullity, irrespective of the mandate of the official
Legality of special leave on full pay pending
investigation
Heyneke v Umhlatuze Municipality (2010) LC
• At the request of some council members, H accepted to go on special leave.
According to his contract such leave was not for investigation purposes, but
for matters like writing exams etc
• When the leave continued indefinitely he told the council he wanted to go
back to work. Council refused. H approached LC for reinstatement
• Issue to be determined: whether the decision to place H on special leave was
lawful
LC held:
• The facts indicated that the purpose of the special leave was to suspend H
pending misconduct investigation. Thus the council used a mechanism
aimed at benefitting employees as a weapon against H
•
In terms of H’s contract, special leave granted to him would always have to
be at his request or consent. It could not be imposed on him
• At best, H had agreed to special leave for a short time. Once he asked to
return to work, and was refused, the special leave was not authorised and his
employment contract was breached
• No municipality [or public sector employer], acting reasonably, in the public
interest, can put an employee on special leave on full pay for a long time, not
even if the employee agrees
• Such a practice was a sign of weak, indecisive management and against
public interests and public policy, for it can never be public policy to waste
public resources and pay for services that are not rendered
• Putting an employee on special leave for a long time on full pay pending
investigation is especially unreasonable when precautionary suspension in
terms of the relevant regulations and codes pending misconduct
investigations is restricted to a specified period [in casu, to 60 days]
• The LC found the decision to place Heyneke on special leave was motivated
by ulterior motives, done without his consent and the council had not
properly applied its mind to the matter
• The LC declared the council’s decision to place Heyneke on special leave to
be unlawful and directed it to accept his tender of services
• For the first time since the enactment of the Municipal Finance Management
Act 2003, a court applied the section that says damages suffered because of
the deliberate unlawful actions of political officer bearers or officials when
performing a function of state may be recovered by a municipality
• The LC directed the council to investigate recovering the costs of the special
leave, some R400 000, from the officials responsible for this debacle
• The court warned that if the council was reluctant to recover the costs they
were still publicly accountable for their decisions and if they did not act
appropriately they could be ruled in contempt of court
Appointments – s 6(3) of the Employment of
Educators Act
Kimberley Junior School & Others v Head: Education Dept, NC & Others
(2009) LC
• In terms of s 6(3) the HoD’s discretion to make an appointment is
dependent on the prerequisite of a proper recommendation by the SGB
• s 6(3) requires the SGB to recommend at least 3 candidates. For a
recommendation of a lesser number the SGB must consult the HoD
• In casu, there had been no proper recommendation by the SGB because it
had put up the names of 3 candidates but had recommended only one
• Consequently the HoD had no discretion to make any appointment at all
• The appointment by the HoD was set aside by the LC
Deemed dismissals
Mahlangu v Minister of Sport & Recreation [2010]
• Re-affirmed that termination of employment under s 17(5)(a)(i) of the PSA
[and s 14 of EEA]:
(a) is not a dismissal as defined by, and is not justiciable under, the LRA;
(b) does not entail any decision, and is accordingly not reviewable
• If the factual elements set out in s 17 and s 14 exist, the termination is by
operation of the law, ie by the operation of s 17(5)(a)(i) and s 14
• However s 17(5)(b) [the reinstatement issue] entails a decision by the
employer and this decision is a reviewable decision
• s 17(5)(b) confers a discretion on employers to reinstate the employee.
• The official making the decision must apply his/her mind to the employee’s
representations and must determine whether the absence was wilful and
whether the employment relationship has been resuscitated
• Failure by the official to perform this function or properly apply his mind to
the representations is reviewable by the LC under s 158(1)(h) of the LRA
• In casu, the employer refused to reinstate Mahlangu. His case was struck off
the roll because he pleaded that he had been unfairly dismissed for
misconduct or incapacity, over which the LC lacks jurisdiction
Compare: PSA obo Van der Walt v Minister of Public Enterprise & Another
• Held: If a department declines to reinstate in terms of s 17(5)(b), the
aggrieved ‘employee’ could refer an unfair dismissal dispute to the relevant
council/CCMA
• One commentator suggested that this obiter statement is debatable. If Van
der Walt’s employment had already lapsed “automatically” in terms of s
17(5)(a)(i), how could she be dismissed if the department declined to take
her back?
Jammin Retail v Mokwane & Others (2010) 4 BLLR 404 (LC)
• In the private sector, the LRA requires the employer to grant deserters a
hearing before dismissal and does not recognise “automatic termination
clause”
What can public sector employers do if they are
not satisfied with the decisions of disciplinary
chairpersons?
Ntshangase v MEC, Finance, KZN (2009) 12 BLLR 1170 (SCA)
• A decision taken by the chairperson of a disciplinary enquiry involving an
employee in the public sector constitutes administrative action, and
accordingly must be lawful, reasonable and procedurally fair
• Where the chairperson’s decision did not pass this test, and thereby
prejudiced the employer, the employer had a right and obligation to
approach the LC
• The LC may review and set aside the decision and, in addition order that the
employee must be dismissed or the sanction changed [eg increased]
Comment:
• Chirwa held that public sector employers do not perform administrative acts
when they make employment related decisions, eg dismiss, promote etc.
Therefore an employee’s labour disputes are not justiciable under
administrative law
• This case gives public sector employers a right which private sector
employers do not have
Appointments and Demographics
Solidarity obo Bernard v SAPS (2010) LC
• Numerical targets cannot determine everything. Where a post cannot be
filled by an applicant from an under-represented group because a suitable
candidate from that group cannot be found, promotion of a suitable
qualified applicant from another group should not be denied without a
satisfactory explanation.
• Due regard must be paid to the efficient operation of the public service
Transfers
• Transfers are not included in the scope of ULPs listed in s 186(2) of the
LRA which means the CCMA/BCs do not have jurisdiction to arbitrate
transfer disputes under s 186(2)
• Nxele v Chief Deputy Commissioner, Corporate Services, Dept of
Correctional Services (2006) 10 BLLR (LC)
• Transfers regulated by legislation reviewable by the LC because the
legislature could not have intended to take away the entitlement of public
service employees to challenge their transfers
Nxele (2008) 12 BLLR 1179 (LAC)
• Transfers regulated by legislation reviewable by LC
• Transfers that constitute a demotion – lead to a demotion- justiciable under s
186(2)(b) as ULP
• Minister of Safety and Security v SSSBC & Others (2010) (LAC))
• EE applied for a transfer. ER refused application.
• EE referred a ‘dispute about the interpretation or application of a CA’ to the
BC
• A CA of the SSSBC, agreement No 5 of 1999, regulates transfers. It
provides for procedures to be ff and the factors the ER must take into
account.
Issue before LAC:
• Whether the dispute was (1) a dispute about the interpretation or application
of a CA or (2) a transfer dispute.
• If (1) BC had jurisdiction to arbitrate dispute. If (2) BC did not have
jurisdiction because transfer disputes do not fall under definition of ulp and
thus not arbitrable under LRA
LAC held:
• Distinction between a dispute [main/real disputes sought to be resolved] and
an issue or issues in a dispute [issue/s that needs to be looked at or answered
in order to resolve the main dispute]
• In casu, the dispute [ie real dispute] was a dispute concerning the fairness or
otherwise of the department’s refusal to approve the employee’s application
for a transfer [ie a transfer dispute]
• The application of the provisions of the CA was an issue in a dispute. It had
to be examined/dealt with in order to resolve the real dispute
Breach of contract / Damage claims in
the High Court
SAMSA v McKenzi (2010) SCA
• Employee instituted contractual damages claim in the HC, alleging that his
dismissal was also a breach of his contract of employment on the basis that
the effect of the prohibition on unfair dismissals in the LRA is to incorporate
into all contracts of employment a term that the employee may not be
unfairly dismissed
SCA held:
• The LRA prohibits unfair dismissals and prescribes remedies and dispute
procedures for same
• As the matter of dismissals is comprehensively dealt with in the LRA it is
unnecessary to imply a term into the contracts of employment.
• Nor is it desirable, as it leads to attempts to circumvent the LRA remedies
and dispute forums and obtain remedies for which it does not provide
Administrative Action – promotions
Gcaba v Minister for Safety and Security (2009) (CC)
• A police officer pursued a dispute relating to promotion in the High Court
relying on a right to fair administrative action ito PAJA
CC held:
• A promotion decision in the public sector does not constitute an
administrative act for the purposes of PAJA
• The promotion dispute should have been processed under the LRA
Resignations
ANC v Municipal Manager, George Local Municipality and
Others (2010) 3 BLLR 221 (SCA)
• The issue was whether Jones, a councillor, had resigned. He
delivered a notice of resignation to the municipal manager, but
before the manager had become aware of it and read it, Jones
sent a letter withdrawing his resignation
The SCA held that:
• Section 27 of the Local Government: Municipal Structures Act 1998
provides that a notice of resignation must be communicated in writing
• Being a unilateral act, a resignation does not need to be accepted by the
intended recipient, but in order to be effective, it must be ‘unequivocally
communicated to the intended recipient. This meant that the mere delivery
of a resignation letter was not sufficient
• Jones’s decision to resign should have been conveyed to the mind of the
municipal manager in order to become effective
• The manager must have read the letter before the withdrawal of resignation
letter for the resignation to have constituted an effective resignation
• Accordingly, there had been no resignation
• Comment: if the requirement had simply been that an employee must
‘resign in writing’ and not that the notice of resignation ‘must be
communicated to the employer in writing’, there may have been a different
outcome
Certificates, Rulings by Conciliators, Staying of
Arbitration Proceedings to review certificates
EOH Abuntu v CCMA & Another (2010) 2 BLLR 172 (LC); Strautmann v
Silver Meadows (2009) 10 BLLR 1007 (LC)
• Conciliator ruled that the referring party was not ‘an employee’ and the
CCMA therefore did not have jurisdiction to entertain the dispute
• Conciliator ticked boxes in certificate that said the dispute concerned an
‘automatically unfair dismissal’ and that the dispute must be referred to the
LC. EE maintained he was dismissed for no reason and referred dispute for
arbitration. At the arbitration the commissioner ruled the CCMA did not
have jurisdiction to arbitrate the dispute on the basis of the certificate
LC held:
• A ‘ruling’ on jurisdiction by a conciliator is nothing more than an advisory
award and has no binding legal effect
• Accordingly, a referring party retains the right to refer the matter to
arbitration
• It is the arbitrating commissioner, assisted by all the evidence, who is best
suited to make a binding jurisdictional ruling
• A certificate of outcome has no legal significance other than to confirm that a
dispute remained unresolved
• The classification of the dispute on the certificate and the forum it must be
referred to is nothing more than gratuitous advice. A referring party was not
bound by these classifications
• In light of all the above, a certificate is not capable of being reviewed and set
aside
• Accordingly, applications to stay arbitration proceeding pending review of
certificate should not be permitted