Solidarity v The Public Health & Welfare Sectoral Bargaining Council

Jacobus Adriaan Hendrik Kotze (the second appellant) had been employed by the Free State Department of Health for 17 years. On 4 July 2007 he was placed on precautionary suspension pending investigation of misconduct allegations. While under suspension, from 23 July 2007 he secured employment with Compu Africa in Pretoria, without first obtaining the employer's permission. On 19 October 2007, the employer notified Kotze that he was deemed discharged from the public service with effect from 3 July 2007 under section 17(5)(a)(ii) read with section 30(b) of the Public Service Act 103 of 1994, on the basis that he had accepted alternative employment while still in service. Kotze's internal review failed, and he referred a dispute through his trade union (Solidarity, the first appellant) to the Public Health & Welfare Sectoral Bargaining Council for arbitration.

• Whether an employee on precautionary suspension who assumes alternative employment without permission is 'absent from official duties without permission' as contemplated by section 17(5)(a) of the Public Service Act 103 of 1994
• Whether the deemed discharge under section 17(5)(a) of the Public Service Act constitutes a dismissal for purposes of the Labour Relations Act 66 of 1995
• Whether the Public Health & Welfare Sectoral Bargaining Council had jurisdiction to arbitrate the dispute
• Whether assumption of alternative employment by a suspended employee amounts to resignation or is incompatible with continued employment
• The proper interpretation and application of section 17(5)(a)(i) and (ii) of the Public Service Act

The appeal was upheld. The order of the Labour Appeal Court was set aside. The arbitration award issued by Commissioner CL Dickens on 27 September 2008 was reviewed and set aside. The matter was remitted to the Public Health and Welfare Sectoral Bargaining Council to arbitrate the dispute de novo. The employer was ordered to pay costs in the Labour Appeal Court.

An employee on precautionary suspension cannot be deemed to 'absent himself or herself from his or her official duties without permission' as required by section 17(5)(a)(i) of the Public Service Act 103 of 1994, because: (1) the employee is absent with the employer's permission (the suspension itself); and (2) during suspension the employee has no official duties from which to absent himself. Section 17(5)(a)(ii) is not a self-standing provision - it merely provides for abridgment of the one calendar month period in subsection (i) if certain requirements are met. The phrase 'such an officer' in subsection (ii) refers to an officer who has absented himself without permission under subsection (i). Unless the requirements of subsection (i) are met, subsection (ii) does not apply. Where the preconditions for deemed discharge under section 17(5)(a) are not met, the purported discharge does not occur by operation of law, and any termination constitutes a dismissal for purposes of the Labour Relations Act, over which a bargaining council has jurisdiction.

The court observed that merely assuming alternative employment while suspended does not equate to resignation. The test from Masinga (whether the alternative employment is incompatible with continued employment with the department) was distinguished as applying to a different statutory provision. The court noted that an employee under suspension is relieved of the obligation to render services and need only make himself available should the suspension be lifted. The principle from Johannesburg Municipality v O'Sullivan that an employee's entitlement to payment arises from making services available (not actual rendering of services) was endorsed. The court did not decide whether section 30(b) of the Public Service Act (prohibiting remunerative work outside employment without permission) applied to the employee's conduct, as this was not addressed by the lower courts and would be a matter for a disciplinary enquiry. A breach of section 30(b) would constitute misconduct and any resultant dismissal would be one over which the Bargaining Council would have jurisdiction. The court declined to order reinstatement at the appellate stage, as the council had not yet determined the merits of whether there was an unfair dismissal.

This case establishes important principles regarding the application of section 17(5)(a) of the Public Service Act to suspended employees. It clarifies that an employee on precautionary suspension is not 'absent from official duties without permission' and therefore cannot be subject to deemed discharge under section 17(5)(a) merely by assuming alternative employment. The judgment reinforces the protection of employees' rights during suspension and ensures that public service employees retain access to dispute resolution mechanisms under the Labour Relations Act. It limits the scope of automatic discharge by operation of law and requires strict interpretation of the statutory preconditions. The case aligns the Supreme Court of Appeal's approach with the Constitutional Court's judgment in Grootboom, ensuring consistency in the treatment of suspended public servants. It has significant implications for the relationship between the Public Service Act and the Labour Relations Act, particularly regarding jurisdiction of bargaining councils and what constitutes a dismissal.