Hayes v National Minister of Police NO and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Moshoana J |
| Judgment Date | 18 May 2023 |
| Citation | 2023 JDR 2621 (LC) |
| Hearing Date | 16 May 2023 |
| Docket Number | C190/2020 |
| Court | Labour Court |
Moshoana J:
Introduction
In terms of section 158 (1) (h) of the Labour Relations Act, 1995 (LRA) [1] , the Labour Court is empowered to review any decision taken or any act performed by
2023 JDR 2621 p3
Moshoana J
the State in its capacity as employer, on such grounds as are permissible in law. In terms of section 145 (1) of the LRA, any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award within six weeks of the date that award was served. Section 145 (1A) of the LRA empowers the Labour Court on good cause shown to condone the late filing of the review application contemplated in subsection 145 (1) of the LRA.
Effectively before me serve two applications rolled up into one. In the notice of motion, the applicant, Mr. John Hayes (Hayes) seeks a principal relief (reviewing and setting aside decisions taken on 17 December 2019 and 6 March 2020 respectively – disapproving the Temporary Incapacity Leave (TIL) applications) and an alternative relief (condonation for the late filing and reviewing and setting aside of a jurisdictional ruling made by an Arbitrator of the bargaining council on 20 October 2019). Although an intention to oppose was filed by the State Attorney, when the matter emerged before me it emerged as an unopposed application. Hayes had also launched an interlocutory application seeking to strike out any defence by the respondents. Given the view this Court takes at the end; it is unnecessary to entertain such an application. It however suffices to the state that the conduct of the State Attorney in this particular matter is not dissimilar to its detestable conduct when litigating on behalf of the State in this Court and other Courts. They simply ignored an order made by my sister Rabkin-Naicker J on 16 February 2022 compelling the respondents to provide certain documents.
Nevertheless, this Court as mentioned, entertained the application as an unopposed one. Although for some unsound reason, Hayes asked this Court to consider the section 145 (1) review application as a ‘fall back’ application should he fail in the section 158 (1) (h) application, to my mind the two are discrete and are aimed at impugning discrete decisions. In this judgment they shall be treated as discrete applications.
Background Facts
2023 JDR 2621 p4
Moshoana J
Hayes was employed by the South African Police Services (SAPS) until 1 January 2019, when he became medically boarded. On 7 October 1996, whilst on duty, Hayes fatally wounded a motor vehicle thief. On his version, shortly after the incident, he developed a post-traumatic stress disorder (PTSD). He consulted one Dr. George, a Psychiatrist who treated him for a while.
It is apparent that at some point, Hayes applied for TIL for the years from 1999 up to and including 2017. He alleged that he suffered from a work related injury (PTSD). Some TIL applications were, on the version of Hayes, granted and others were refused. It is not clear from the papers as to when exactly those refused were so refused. However, Hayes alleges that ‘final’ decisions were taken on 17 December 2019 and 6 March 2020 respectively.
It is apparent that the genesis of the present application was when a state debt was raised seeking to recoup salaries wrongly paid to Hayes whilst he was not paid sick leave. On 19 January 2017, Hayes raised the issue regarding a decision made by the Head Office with regard to his injury on duty. He demanded the stopping of the state debt and the reimbursement of all monies allegedly owed to him. Various correspondents was exchanged on the topic.
On 6 May 2019, Hayes opted to, the midst, refer a dispute to the Public Service Coordinating Bargaining Council (PSCBC). The dispute was enrolled for arbitration on 14 October 2019. At arbitration, the SAPS raised a jurisdictional point. This dispute arouse because of the grievances Hayes lodged in May 2016 and during 2018 respectively lamenting the decision to refuse him TIL. The dispute was referred as a refusal to bargain and an interpretation of the collective agreement, PSCBC Resolution 07 of 2000 (Resolution). For reasons that Hayes ceased to be an employee in December 2018, Arbitrator I De Vlieger-Seynhaeve (Seynhaeve) declined jurisdiction in a written ruling dated 20 October 2019.
On or about 25 June 2020, Hayes launched the present applications. As indicated above they remain unopposed.
The grounds for review
2023 JDR 2621 p5
Moshoana J
With regard to the section 158 (1) (h) review application, Hayes contends that the decisions taken by the SAPS are irrational and falls to be set aside. With...
To continue reading
Request your trial