Phenithi v Minister of Education and Others

• Jurisdiction: South Africa
• Judge: Mpati DP, Cameron JA, Navsa JA, Van Heerden JA and Mlambo JA
• Judgment Date: 14 December 2005
• Citation: 2008 (1) SA 420 (SCA)
• Docket Number: 18/05
• Hearing Date: 08 November 2005
• Counsel: M Khang (attorney) for the appellant V Soni SC for the respondents
• Court: Supreme Court of Appeal

Mpati DP:

[1] As at 19 May 2000, the appellant had been an educator for 15 years. She was notified by letter dated 31 July 2000 (the discharge letter) from the third respondent, the Head: Education, Free State Province, that 'in J

Mpati DP

terms of s 14(1)(a) of the Employment of Educators Act 76 of 1998 you are deemed to have been A discharged from service on account of misconduct from 19 May 2000, for being absent from work for a period exceeding 14 consecutive days without the consent of the employer'. At the time of her discharge the appellant was teaching at Nkgodise Primary School, a public school in Dewetsdorp (the school). B

[2] Section 14(1)(a) of the Employment of Educators Act (the Act) provides:

An educator appointed in a permanent capacity who -

(a)

is absent from work for a period exceeding 14 consecutive days without permission of the employer; C

(b)

. . .

(c)

. . .

(d)

. . .

shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct, in the circumstances D where -

(i)

paragraph (a) or (b) is applicable, with effect from the day following immediately after the last day on which the educator was present at work; or

(ii)

. . . . [1] E

[3] The appellant referred the matter to the Education Labour Relations Council (the council) - she was advised in the discharge letter that she had a right to do so if she was not satisfied - where conciliation was attempted. When conciliation failed, the matter was set down for arbitration on 11 February 2002. The arbitrator found that the council had no jurisdiction over the matter since s 14(1)(a) of the Act F was peremptory. He expressed the view that the section 'seems to be unconstitutional in that the employer is not required . . . to apply the audi alteram partem rule before the dismissal'. He accordingly recommended that the appellant 'take the matter to High Court' or to 'approach the Constitutional Court directly in order to set aside the provisions of s 14(1)(a)' of the Act. The G appellant launched an application for direct access to the Constitutional Court, but the application was turned down. She then instituted motion proceedings in the Orange Free State Division of the High Court, seeking the following order: H

1.

That the decision of the Respondents to dismiss the [appellant] be set aside and declared (an) unfair Labour Practice and unconstitutional.

2.

That the provisions of section 14(1)(a) read with 14(1)(d) and 14(2) of [the Act] (are) unconstitutional and invalid.

3.

. . . I

4.

Further and/or alternative relief.

Mpati DP

The court a quo (Ebrahim J) dismissed the application with costs, A but granted the appellant leave to appeal to this court. [*1]

[4] The issues in this appeal are: (1) whether the discharge of the appellant from duty constitutes administrative action and, if so, whether it was fair; and (2) the constitutionality of s 14(1)(a) of the Act. The appellant avers in her founding affidavit that on 16 February 2000 she was admitted to hospital B due to illness 'until about April 2000'. She submitted medical certificates and leave forms to the principal of the school, Mr Sekhele Amos Ramakau. She had not fully recovered when she was discharged from hospital, but because she had been informed by her colleagues that the principal intended to 'dismiss' her, she reported for duty. On or C about 19 May 2000 she again fell ill and consulted a medical doctor on 22 May 2000. The doctor referred her to hospital and booked her off work until 5 June 2000. On 6 June 2000 her son died. She informed the principal of this before she took time off so as to arrange for her son's burial. She states further that the principal was not happy with her proposed absence since, according to him, she D had exhausted her sick and family leave. He nonetheless gave her permission 'to attend to the burial'. Shortly after her son's burial she again fell ill and was booked off by a medical doctor from 19 to 21 June 2000. This last incapacity 'coincided with school holidays' but when she reported for duty at the school when it reopened she was informed by the third respondent, through the E principal, that her 'services had been terminated' due to absence from work for more than 14 consecutive days. She subsequently received a notice - the discharge letter - through the post.

[5] Mr Ramakau, who is now a school management developer employed by the second respondent, deposed to an affidavit on F behalf of the respondents. Whilst not disputing that she had been ill, he denies that the appellant submitted medical certificates and leave forms for the period 16 February 2000 to April 2000. He denies, however, that the appellant was at the school between April 2000 and 19 May 2000. It is not necessary, in my view, to make a finding in this regard because the period in respect of which G s 14(1)(a) of the Act came into operation is from 19 May 2000 onwards. I say this because given the manner in which the respondents relied on that subsection, 19 May 2000 would have been 'the day following immediately after the last day on which the educator was present at work' (s 14(1)(a)(i)). Mr Ramakau also denies that it was the appellant's son who had died and alleges H that it was in fact the son of the appellant's sister. He denies further that the appellant had made any arrangements with him to attend to the burial.

[6] It is not in dispute that on 20 June 2000 Mr Ramakau delivered a letter to the appellant in terms of which she was charged with misconduct 'in that on 16 February to 25 April 2000 and I on 1 June 2000 till now' she had been negligent or indolent in carrying out her duties by not

Mpati DP

attending 'to your class Grade 3B'. She was also invited, in terms of s 19(2) of the Act, to admit or deny A the allegations against her. The appellant did not respond. Another letter dated 21 July 2000 was addressed to her in the following terms:

It has come to the attention of the Department that you have not reported for duty at Nkgodise Primary School since 19 May 2000 up B to date.

If you do not report to school on or before Wednesday 26/07/2000, your services will be terminated on the basis of abscondment (absenting yourself from duty without the permission from the employer.)

Yours sincerely C

Principal:

Nkgodise Primary School.

On 27 July 2000 Mr Ramakau wrote to the School Management Developer, Bloemfontein East District, advising that the appellant had failed to report for duty at the school 'on or before Wednesday, 26 July 2000' as per the instructions in his letter of 21 July 2000. The next correspondence (on 31 July 2000) was the D letter of discharge.

Does the appellant's discharge constitute administrative action?

[7] Although in his heads of argument Mr Khang, for the appellant, submitted that it was unclear from the respondents' papers whether the appellant was 'dismissed' by operation of law or 'on the basis E of abscondment', he conceded in argument before us that the termination of the appellant's employment was by operation of law. This concession was wisely made.

[8] It bears noting, however, that the first prayer sought by the appellant in the notice of motion was the setting aside of 'the F decision of the respondents to dismiss' her and that such decision be declared an unfair labour practice. In his heads of argument and before us Mr Khang argued that the termination of the appellant's employment was both substantively and procedurally unfair. The complaint is captured in one single statement in the founding papers as follows: G

4.9

I was not given an opportunity to state my case and the termination was apparently by operation of law without any hearing.'

[9] In Minister van Onderwys en Kultuur en Andere v Louw, [2] this court had occasion to deal with the provisions of s 72 of the Education Affairs Act (House of Assembly) 70 of 1988, which were almost identical to those of s 14 of H the Act. Section 72(1) of Act 70 of 1988 provided that a person

employed in a permanent capacity at a departmental institution and who - (a) is absent from his service for a period of more than 30 consecutive days without the consent of the Head of Education . . . shall, unless the minister directs otherwise, be I deemed to have been discharged on account of misconduct. . . [*2]

Mpati DP

The respondent in Louw's case was a general assistant...