The Labour Relations Act is one of the legislative frameworks that give effect the constitutional right to fair labour practices. It makes provision for the termination of employment and the procedures applicable thereto. An employer may decide to dismiss an employee, whereafter the employee may refer a dispute alleging unfair dismissal. However, there is another category of dismissals, which is referred to as “deemed dismissals”.
Deemed dismissals can be described as the termination of employment by the operation of law. In other words, the employer does not dismiss the employee as such, instead, the employee is dismissed through the mechanism of a legislative provision upon the occurrence of an event. In such circumstances, the employee may not refer a dispute as an unfair dismissal because the dismissal occurs due to the occurrence of an event, as opposed to a decision by the employer. This article will specifically look at deemed dismissals in terms of the Public Service Act, Employment of Educators Act and South African Police Service Act.
Public Service Act
The Public Service Act (PSA) came into effect in 1994, which provides for a legislative framework applicable to members of the public service. This Act specifically provides for the termination of employment of public service members. In terms of section 17(3)(a), an employee would be deemed to have been dismissed for misconduct if the employee is absent from work without the consent of their head of department and is absent for longer than one month. The dismissal shall be deemed to have taken place from the date succeeding the last day of the employee’s attendance at work.
Therefore, if the employee is absent from work without the consent of the head of the department, it would automatically trigger the application of the section, and the employee would be dismissed for misconduct by operation of law. However, the employee may request to be reinstated in terms of section 17(3)(b) of the PSA. The provision does not apply to educators or members of the intelligence services.
In the case of National Education Health & Allied Workers Union & Another v McGladdery NO & Others, the Court held that the termination of employment in terms of section 17(3) involves a two-stage inquiry. The first stage is where the employee commits misconduct since they fail to report to work for a period longer than one month without the necessary consent. In this scenario, the deemed provision comes into effect. In practice, the employer sends a letter to inform the employee that the operation of law has terminated their employment.
For the second stage of the enquiry, the employee returns to work after one month of being absent. The employee may then request his employer to reinstate him. However, the employee must be able to show good cause.
Employment of Educators Act
The Employment of Educators Act contains a similar provision as discussed above but explicitly deals with deemed dismissals of educators. In section 14(1) of the Act, unless the employer directs otherwise, permanently employed educators will be deemed to have been dismissed for misconduct in the following instances:
- Where the educator is absent for longer than 14 days, without the consent of their employer;
- Where the educator is absent from work, without the consent of their employer and assumes a new position;
- Where the educator is suspended and they resign or assumes a new position, without the consent of the employer; and
- Where disciplinary proceedings are taken against an educator, and they resign or take up a new position without the employer’s consent.
In respect of numbers 1 and 2 above, an educator will be deemed to have been dismissed for misconduct from the day following immediately after the last day of the educator being present at school. Furthermore, in respect of 3 and 4 above, an educator will be deemed to have been dismissed from the day upon which the educator resigns or takes up a new position.
The implication of the above section, like section 17(3) of the PSA, is that an employee may not refer an unfair dismissal dispute. The termination of the employee’s services can also not be reviewed in terms of section 145 of the Labour Relations Act. However, section 14 (1) of the Employment of Educators Act contains the wording “unless the employer directs otherwise”, which is indicative that the employer has the discretion not to apply the deeming provision in some instances and directs otherwise. Accordingly, in terms of section 14(2) of the Act, the employee may request to be reinstated, provided that the employee can show good cause.
If an employee requests to be reinstated, an employer would then exercise their discretion and must decide whether ‘good cause’ exists. In the Labour Appeal Court case of the Member Executive Council for the Department of Education, Western Cape Government v Jethro N.O and another, the Court held that when an employer exercises its discretion as to whether good cause exists, the employer must consider whether the constituted relationship would be intolerable.
Furthermore, the employer must consider the reasons for the employee’s absence, the duration thereof, the employee’s prior conduct, whereabouts of the employee during their absence and the possibility of alternative processes and solutions. The employer must thus investigate and evaluate all the relevant circumstances of the case.
Should the employer find that the employee failed to show good cause, the employer’s decision may be taken on review in terms of the Promotion of Administrative Justice Act. In Jethro, the Labour Appeal Court confirmed that the Department of Education’s decision in terms of section 14(2) amounts to the “exercise of a statutory power and the performance of public function…”
South African Police Act
The South African Police Act makes provision for deemed dismissals in section 36(1).
“A member who is convicted of an offence and is sentenced to a term of imprisonment without the option of a fine shall be deemed to have been discharged from the Service with effect from the date following the date of such sentence: Provided that, if such term of imprisonment is wholly suspended, the member concerned shall not be deemed to have been so discharged.”
The above section is slightly different to the provisions in section 17(3) of the PSA and section 14 of the Employment of Educators Act. In short, if a member of the South African Police Service is convicted and sentenced to imprisonment without the option of a fine, the employee will be deemed to have been dismissed. However, a South African Police Service member may apply to the National Commissioner to be reinstated, provided that their conviction has been set aside either on appeal or review. An application to be reinstated must be made within 30 days of their conviction being set aside.
In the case of Phopo v National Commissioner of the South African Police Services and Others, the applicant approached the labour court to review the first respondent’s decision not to reinstate him. The first respondent refused to reinstate him due to the fact that his application was not brought within the 30 days as prescribed. The Court held that the question as to whether the first respondent’s decision not to reinstate the applicant is reviewable ought to be considered in light of the Labour Appeal Court’s view held in the Jethro. It pointed out that the National Commissioners decision not to reinstate the applicant amounts to the exercise of a statutory power and performance of a public function, which is an administrative decision.
The applicant brought the application in terms of section 158 (1)(h) of the LRA, in which he “contends that his review is lodged with emphasis on the residual principle of legality, and further contends that the National Commissioner’s decision was invalid, unlawful, irrational, unreasonable, contradictory, procedurally unfair, and arbitrary…” The Court found in the applicant’s favour, and the National Commissioner’s decision was reviewed and set aside.
In light of the above legislative provisions and case law, it is clear that the operation of law can terminate the employment contracts of employee’s working in the public sector upon the occurrence of a particular event. However, the employee may request to be reinstated in certain instances, as discussed, and the employer will then have to exercise its discretion as to whether to reinstate the employee. If the employer refuses to reinstate the employee, the employee may then take the employer’s decision on review.
Article by: Jodi-Leigh Erasmus
Dispute Resolution Official – Port Elizabeth