South African Medical Association and Dr Elie Mutunzi v Member of the Executive Council for Health in North West

Dr Mutunzi was employed as a Medical Doctor by the North West Department of Health. He was absent from work from 28 December 2011 and returned on 10 April 2012. Upon his return on 10 April 2012, he received a letter from the Clinical Manager of Mafikeng Provincial Hospital (Dr Mabote) advising him not to work until further notice. Two days later, on 17 April 2012, the Acting CEO informed Dr Mutunzi that he had been deemed dismissed with effect from 1 February 2012 in terms of section 17(3)(a)(i) of the Public Service Act for unauthorized absence exceeding one calendar month. Dr Mutunzi disputed this. On 15 December 2011, Dr Mutunzi had applied for annual leave from 28 December 2011 to 31 January 2012. The leave form was not approved by Dr Mabote, who noted that the leave was not discussed with him before Dr Mutunzi left. On 30 January 2012, Dr Mutunzi applied orally and in writing for an extension of leave. The first applicant (SAMA) made written representations to the MEC on 7 May 2012. The MEC refused to substantively consider the representations on 14 July 2012 because Dr Mutunzi had lodged a dispute at the Bargaining Council. On 7 September 2012, an Employment Relations Official confirmed that reinstatement would be refused as Dr Mutunzi had not shown good cause.

• Whether the decision to invoke section 17(3)(a)(i) of the Public Service Act was lawful
• Whether all jurisdictional requirements for deemed dismissal under section 17(3)(a)(i) were met
• Whether Dr Mutunzi's absence was 'without permission' as required by section 17(3)(a)(i)
• Whether the refusal to approve reinstatement under section 17(3)(b) was lawful
• The appropriate remedy where deemed dismissal is found to be unlawful
• Whether the Labour Court has jurisdiction to review decisions under section 158(1)(h) of the LRA on the principle of legality

1. It is declared that Dr Mutunzi was not deemed dismissed. 2. The respondent is to reinstate Dr Mutunzi with immediate effect retrospective to 12 April 2012 with benefits on the same terms and conditions that previously applied to him as if he had not been dismissed. 3. The respondent is to pay the costs of the application (excluding costs related to the rescission application and supplementary affidavit).

Where one of the jurisdictional requirements for deemed dismissal under section 17(3)(a)(i) of the Public Service Act is lacking, the section cannot be invoked and the purported dismissal is unlawful and invalid on the principle of legality. Absence on annual leave or where an employee has applied for leave (whether approved or not) cannot constitute 'absence without permission' within the meaning of section 17(3)(a)(i), as the BCEA imposes a statutory obligation on employers to grant annual leave and, at the written request of an employee, to permit unpaid leave. Section 17(3)(a)(i) is intended to address abscondment or desertion, not leave situations. When a deemed dismissal is set aside as unlawful on the principle of legality, the Labour Court is empowered to restore the status quo ante by ordering reinstatement without usurping the Executive Council Member's discretionary power under section 17(3)(b) to approve reinstatement on good cause shown.

The Court made several important obiter observations: (1) It criticized the procedural approach of filing a supplementary affidavit that merely annexed and sought to incorporate evidence from a rescission application, describing this as inappropriate and noting that affidavits serve dual purposes as pleadings and evidence. (2) The Court expressed concern about the 'developing and growing trend within the public service to wizardly call into aid the provisions of section [17(3)(a)(i)] without due consideration of the question whether the jurisdictional requirements are present', noting this results in years of litigation and hemorrhaging of the public purse. (3) The Court implored legal advisers to departments to 'carefully dispense with valuable and less enigmatic legal advice in order to protect the public purse'. (4) The Court distinguished between errors by executive authorities (politicians) and technocrats, expressing greater concern when technocrats provide wrong legal advice. (5) The Court reiterated its previous divergent view from De Villiers regarding the power in section 17(3)(b), maintaining that this power is statutorily reserved for the MEC and differs from reinstatement powers granted to courts and dispute resolution bodies, citing its judgment in Nyamane v MEC: Free State Department of Health and endorsing the approach in Minister of Defence v Mamasedi. (6) The Court confirmed that the rule that costs follow the result remains intact in the Labour Court, citing AMCU v Ngululu Bulk Carriers.

This case is significant in South African labour law for several reasons: (1) It clarifies the strict jurisdictional requirements for deemed dismissal under section 17(3)(a)(i) of the PSA, particularly that all requirements must be met before the section can be invoked. (2) It establishes that absence on annual leave or approved leave cannot constitute 'absence without permission' for purposes of section 17(3)(a)(i). (3) It confirms that the Labour Court has jurisdiction under section 158(1)(h) of the LRA to review decisions of the State as employer on the principle of legality. (4) It clarifies the interaction between the PSA's deemed dismissal provisions and the BCEA's leave provisions, holding that the employer's statutory obligation to grant leave means such absence cannot be 'without permission'. (5) It warns against the improper invocation of section 17(3)(a)(i) and the resulting cost to the public purse. (6) It clarifies the remedy for unlawful deemed dismissal, holding that the Court can restore the status quo ante without usurping the MEC's discretion under section 17(3)(b). (7) It addresses procedural issues regarding supplementary affidavits and the incorporation of evidence from other proceedings.