Solidarity v The Public Health & Welfare Sectoral Bargaining Council and Others

Jacobus Adriaan Hendrik Kotze, a public servant employed by the Department of Health: Free State for 17 years, was placed on precautionary suspension pending investigation into alleged misconduct. While suspended, and without the employer’s permission, he took up temporary employment with a private company, Compu Africa. The Department informed him that he was deemed discharged from the public service in terms of s 17(5)(a)(ii) of the Public Service Act 103 of 1994 for assuming other employment. Kotze, represented by Solidarity, referred an unfair dismissal dispute to the Public Health & Welfare Sectoral Bargaining Council. The commissioner ruled that the termination occurred by operation of law and therefore did not constitute a dismissal under the Labour Relations Act, depriving the council of jurisdiction. This view was upheld by the Labour Court and, by majority, the Labour Appeal Court. Solidarity and Kotze appealed to the Supreme Court of Appeal.

The appeal was upheld. The Labour Appeal Court’s order was set aside. The arbitration award ruling that the bargaining council lacked jurisdiction was reviewed and set aside, and the matter was remitted to the Public Health & Welfare Sectoral Bargaining Council to arbitrate the dispute on its merits.

The case clarifies the proper interpretation of s 17(5)(a) of the Public Service Act and limits the circumstances in which public servants can be deemed discharged by operation of law. It confirms that suspension constitutes authorised absence and that taking other employment during suspension does not automatically result in a deemed discharge. The judgment reinforces employee access to dispute‑resolution mechanisms under the Labour Relations Act and aligns Supreme Court of Appeal jurisprudence with Constitutional Court authority.