Minister of Finance and Another v Labour Commissioner and Others (SA 154/2023) [2024] NASC 41 (23 December 2024)

REPORTABLE

CASE NO: SA 154/2023

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

MINISTER OF FINANCE	First Appellant
EXECUTIVE DIRECTOR OF FINANCE	Second Appellant
and
THE LABOUR COMMISSIONER	First Respondent
JASON PICKARD	Second Respondent
KATHITIRE KENNETH HUMU	Third Respondent

Coram: SHIVUTE CJ, DAMASEB DCJ and ANGULA AJA

Heard: 15 November 2024

Delivered: 23 December 2024

Summary: Mr Jason Pickard, the second respondent (Mr Pickard), was employed as a taxation officer at the Ministry of Finance (the Ministry/employer) since 16 November 2013. On 24 May 2018, he was arrested following criminal charges laid against him by the officials of the Ministry concerning missing funds. His uncontradicted evidence before the arbitrator was that he was granted bail for one of the charges, and soon thereafter, the employer laid additional charges against him, which ensured his continued incarceration until 17 August 2018. After his release on bail on 17 August 2018, he was dismissed from his employment by virtue of the deeming provision under s 24(5)(a)(i) of Public Service Act 13 of 1995 (the PSA). Mr Pickard sought relief under s 24(5)(b) which allows for reinstatement by the Prime Minister upon recommendation by the Public Service Commission (PSC). On 22 January 2019, the PSC recommended his reinstatement, however, his appeal was dismissed by the Prime Minister on 14 May 2020. Consequently, he successfully sought relief before the Labour Commissioner, who ruled that the dismissal was unfair and ordered reinstatement. The employer appealed to the Labour Court against the arbitrator’s award, which found that the arbitrator did not err in his decision, and dismissed the appeal.

Aggrieved by the Labour Court’s judgment and order, the employer lodged an appeal to this Court contending that the court a quo erred by fundamentally misinterpreting and misapplying the applicable statutory provisions and principles related to the dismissal of public service employees under the PSA.

The appellants contend that the phrase ‘absenting himself’ in the deeming provision does not require wilfulness, as the provisions purpose is to fill a vacancy during an employee’s uncertain absence. They further assert that PSSR 13.1 B provides a sufficient remedy for employees absent due to incarceration, requiring them to apply for vacation leave, with the absence deducted from their leave days. The employer contends that Mr Pickard should have adhered to this process during his incarceration and as a direct failure to adhere to the said provision he was absent from work for 30 consecutive days without permission.

Mr Pickard’s contention on appeal is that his absence from work brought about by the employer cannot constitute abscondment as contemplated by s 24(5)(a)(i) of the PSA.

On appeal, this Court held that the trilogy of cases (Njathi v Permanent Secretary, Ministry of Home Affairs 1998 NR 167 (LC); Mkhwanazi v Minister of Agriculture & Forestry, Kwazulu 1990 (4) SA 763 (D); and Member of the Executive Council for the Department of Education Western Cape Government v Jethro N.O & another (CA10/2018) [2019] ZALAC 38) were correctly decided and they lay down the principle – interpreting pari materia legislation – that the deeming provision would not apply where the employee’s absence was not wilful.

Held that, a literal interpretation of the deeming provision contended for by the employer would produce an absurd result and is inconsistent with the intention of the legislature. The deeming provision does not apply where the common cause facts establish the very opposite of the mischief the employer says the section is intended to achieve: that the employer’s ignorance of the true reason for an employee’s absence is the justification for the deemed dismissal.

Held that, it is undisputed that Mr Pickard returned to work after his release and was barred from the workplace upon his return. It is evident that he did not voluntarily absent himself. Contrary to the employer's claim, PSSR D.1 Part B did not apply, as Mr Pickard’s 30-day absence was not due to a conviction or unresolved charges within that period.

Held that, Mr Pickard is not entitled to remuneration for the days he was absent from work during the period he was in lawful custody. He is however entitled to his remuneration from 28 August 2019 to date.

Appeal is dismissed, with costs, including the costs of one instructing and one instructed legal practitioner.

________________________________________________________________

APPEAL JUDGMENT

________________________________________________________________

DAMASEB DCJ (SHIVUTE CJ and ANGULA AJA concurring):

Introduction

1. At issue in the court a quo (the Labour Court) was the proper interpretation and application of s 24(5)(a)(i) and (b) of the Public Service Act 13 of 1995 (the PSA). It states:

‘(5) (a) Any staff member who, without permission of the executive director of the office, ministry or agency in which he or she is employed –

1. absents himself or herself from his or her office or official duties for any period exceeding 30 days; or

2. . . .

shall be deemed to have been discharged from the Public Service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of employment.

(b) The Prime Minister may, on the recommendation of the Public Service Commission, and notwithstanding anything to the contrary contained in any law, reinstate any staff member so deemed to have been discharged in the Public Service in the post or employment previously held by him or her, or in any other post or employment on such conditions as may be approved by the Prime Minister on the recommendation of the Public Service Commission, but with a salary or scale of salary or grade not higher than the salary or scale of salary or grade previously applicable to him or her, and in such a case the period of his or her absence from his or her office or official duties shall be deemed to have been absence on vacation leave without pay or leave on such other conditions as may be approved by the Prime Minister on the recommendation of the Commission.’

2. The appellants maintain that their interpretation of that provision is supported by the public service staff rules made under the PSA – specifically Public Service Staff Rule D.1. Part B – which provides:

‘The absence of a staff member who is arrested and or kept in detention or who is to appear in court on a criminal charge and who is not subsequently acquitted or the charge against him or her is not withdrawn must be covered by the granting of vacation leave with or without remuneration for a period not exceeding 30 consecutive days’.

Litigation history

3. The second respondent (Mr Pickard) was employed as a taxation officer at the Ministry of Finance (the Ministry) since 16 November 2013. On 24 May 2018, Mr Pickard was arrested following criminal charges laid against him by officials of the Ministry (the employer) concerning missing funds. After his release on bail on 17 August 2018, Mr Pickard returned to work only to receive a letter dated 4 July 2018, from the employer’s representative, the Commissioner of Revenue Management, informing him that he was, due to his absence from work, discharged from employment pursuant to s 24(5)(a)(i) of the PSA.

4. The letter reads:

‘. . . RE: ABSCONDMENT: YOURSELF

It has come to my attention that you absented yourself from your office or official duties without permission for a period exceeding 30 consecutive days.

According to the information received from the Department Revenue Management: Division Central Region, you did not report for duty since 25 May 2018 to 03 July 2018. In this regard 30 working days have been exceeded without you notifying your supervisor.

Section 24(5)(a)(i) of the Public Service Act (Act 13 of 1995) stipulates that “any staff member who, without permission of the [Executive Director] of the Ministry in which he is or she is employed, absents himself or herself from his or her office or official duties for any period exceeding 30 days, shall be deemed to have been discharged from the Public Service on account of misconduct. Such discharge of a staff member is with effect from the date immediately succeeding his or her last day of attendance at his or her place of employment. Your last day of attendance was 24 May 2018, therefore your discharge from the Public Service on account of Abscondment is with effect from 25 May 2018. (sic)

However, since you have been discharged pursuant to Section 24(5)(a) of the Public Service Act, 1995 (Act 13 of 1995), you retain the right to seek reinstatement by means of the procedures set forth in Section 24(5)(b) of the same Act.

In terms of the Public Service Staff Rule D.II, a staff member who leaves the Public Service, for any reason whatsoever, shall be paid a leave gratuity (in cash value) in respect of vacation leave which accrued to him/her, but not granted before the date of termination of his or her services.

Payment of your leave gratuity is being processed and the calculation of the cash value thereof is to be done as per the prescribed formula stipulation in the said Staff Rule.

Also find attached the Government Institution Pension Fund (GIPF) benefit Claim Form, which must be signed by you on the appropriate space indicated with the asterisk (*) and be returned with the required documents, to the Human Resource Office of the Ministry without delay.

Yours Sincerely. . .’

5. In the wake of the dismissal, Mr Pickard sought relief under s 24(5)(b) of the PSA which allows for reinstatement by the Prime Minister upon recommendation of the Public Service Commission (PSC). Despite the PSC’s recommendation on 22 January 2019 for his reinstatement, Mr Pickard’s request for reinstatement was denied by the Prime Minister on 14 May 2020.

6. The criminal charges against Mr Pickard were eventually withdrawn on 21 February 2019. He then successfully brought proceedings against the employer for unfair dismissal in terms of the Labour Act 11 of 2007 (the Labour Act). The arbitrator ordered that he be reinstated with back pay. The employer appealed to the Labour Court against the arbitrator’s award.

7. The primary issues before the Labour Court were:

1. Whether the arbitrator erred in law by finding that Mr Pickard was unfairly dismissed.

2. Whether the invocation of s 24(5)(a)(i) of the PSA was appropriate in Mr Pickard’s case given the circumstances of his absence.

8. The employer’s appeal to the Labour Court was dismissed. The court a quo pointed out that Mr Pickard’s absence was due to his arrest brought about by the employer who, at all material times, was aware of the reason for his absence from work. Thus, the Labour Court held that Mr Pickard’s absence was neither wilful nor without notification – negating the application of the deeming provision under s 24(5)(a)(i) (the deeming provision). The Labour Court therefore concluded that the arbitrator did not err in his decision.

9. The court a quo also made adverse comment about the fact that while the PSC had recommended Mr Pickard’s reinstatement, the Prime Minister failed to follow the recommendation without providing any rational basis. According to the Labour Court, that further supported the conclusion that Mr Pickard’s dismissal was procedurally and substantively unfair.

10. The Labour Court also held that the deeming provision should be applied restrictively and with caution due to its potential to unjustly penalise employees. The court opined that the provision should not be misused as a convenient tool for dismissal without thorough consideration of the circumstances of an employee’s absence from work.

Appeal to this Court

11. Aggrieved by the Labour Court’s judgment and order, the employer lodged an appeal to this Court contending that the court a quo erred fundamentally by misinterpreting and misapplying the statutory provisions and principles related to the dismissal of public service employees under the PSA.

12. Although the employer originally relied on four grounds of appeal, at the hearing it pursued two principal grounds which I set out next.

Error in interpretation of the Public Service Act

13. It is alleged that the Labour Court misinterpreted the deeming provision. The criticism is made that the court a quo erred in its conclusion that Mr Pickard’s absence was involuntary rather than wilful. According to the employer, the deeming provision applies regardless of the reason for the employee’s absence – the sole jurisdictional fact being absence from work for over 30 consecutive days. Furthermore, the employer asserts that the court a quo failed to adequately consider the relationship between ss 24(5)(a)(i) and 24(5)(b) of the PSA.

Finding of unfair dismissal is an error

14. The Labour Court’s finding that the dismissal was substantively and procedurally unfair is also challenged. The employer contends that the court a quo did not properly consider the purpose, context and interplay between the deeming provision and the provisions of the Public Service Staff Rules (PSSR), particularly PSSR 13.1. D.1.

15. According to the appellants, that staff rule specifies that an absence due to incarceration should be covered by annual leave. The Labour Court is said to have overlooked the latter provision against the backdrop of the deeming provision and thereby rendered an incorrect judgment on the fairness of the dismissal.

Submissions

The employer

16. On behalf of the appellants, Mr Kasita identified the issues on appeal to be:

1. Whether the words ‘absenting himself’ in s 24(5)(a)(i) of the PSA require wilful absenteeism for the deeming provision to come into effect.

2. Whether the jurisdictional facts to invoke the provisions of s 24(5)(a)(i) of the PSA were established.

17. The crux of the employer’s argument focuses on the proper interpretation of the phrase ‘absenting himself’ in the deeming provision. According to counsel for the employer, the deeming provision does not require wilfulness because its purpose is to allow an employer to fill a vacancy caused by an employee’s uncertain absence.

18. It was further argued that the staff rules dealing with leave available to an employee who is absent from official duties due to incarceration, provided sufficient remedy for Mr Pickard. The argument goes that PSSR 13.1 B stipulates that when an employee is absent from work as a result of incarceration, he or she should apply for vacation leave and the days of his absence will be deducted from the leave days. The employer asserts that Mr Pickard should have applied for vacation leave during his incarceration. In other words, that he has only himself to blame for not doing so.

19. Counsel for the appellants submitted that the jurisdictional facts for the application of the deeming provision were satisfied because:

1. Mr Pickard was arrested by the Police and incarcerated on charges of fraud, money laundering, and uttering.

2. He was detained for 88 days, leading to prolonged absence.

3. Mr Pickard failed to apply for leave whilst in custody.

4. The employer was not malicious in pursuing charges against Mr Pickard and that his absence from work due to incarceration was the result of the decision of the Police.

5. The deeming provision had already come into effect when Mr Pickard was instructed to stay away from the work place.

20. Based on these facts, counsel for the employer argued that Mr Pickard was absent for more than 30 consecutive days without permission and was properly discharged.

21. Regarding compensation, it was argued on behalf of the employer that the arbitrator erred in awarding N$961 614,16 as the second respondent did not provide evidence of how he mitigated his losses during his four years of unemployment.

The second respondent

22. According to Mr Pickard’s counsel, Mr Chibwana, the issue for determination is whether the court a quo erred or misdirected itself on one fundamental question: Can imprisonment instigated by the employer be considered abscondment as contemplated by s 24(5)(a)(i) of the PSA?

23. In opposition to the appeal, Mr Chibwana argued that Mr Pickard did not abscond from official duties as contemplated by the deeming provision. Counsel relied on Njathi v The Permanent Secretary, Ministry of Home Affairs¹ which dealt with the deeming provision in s 24(5)(a)(i).

24. To properly appreciate Mr Chibwana’s core submission, it is necessary to briefly discuss Njathi by placing emphasis on the facts and circumstances of that case in so far as it is relevant to the case now before us. Mr Njathi was employed as an immigration officer by the Ministry of Home Affairs. During December 1996, he absented himself from his duties for more than 30 days ignoring a lawful directive that leave would not be granted to immigration officers in the December/January period due to the expected influx of tourists over the holiday, except in rare cases. Mr Njathi had applied for leave, but the application had not been formally approved, and he did not fall within the rare cases in respect of which leave could be granted. The employer relied on the provisions of s 24(5) of the Public Service Act in dismissing Mr Njathi.

25. The bone of contention in Njathi was with respect to what would happen after it is found that the jurisdictional facts for the application of the deeming provision are present, and the deeming clause has become operative.

26. Strydom JP held that, on the facts, the jurisdictional facts for the deeming provision to become operative were met. The learned Judge-President concluded that the deeming provision comes to the rescue of the employer who is placed in an invidious position of not knowing why and how long such absence would continue, to again fill the position so that work can be done.

27. Strydom JP however added that ‘the words “absents himself” clearly imported an element of volition on the part of the absentee. . .’²

28. Having considered all the facts, including that Mr Njathi was at all material times aware that his application for leave was not authorised, and still elected to be absent from work, and that he was informed during his absence that his absence would be considered as unpaid leave, the court held that the respondent proved the jurisdictional facts necessary for the deeming provision in s 24(5) of the Act to become operative, and dismissed the appeal.

29. Njathi, therefore, makes clear that: (a) the employee’s absence must be wilful and (b) the employer must be in ignorance of the reason for the absence.

30. Against that backdrop, Mr Chibwana relied on the following facts to demonstrate that Mr Pickard’s absence did not constitute abscondment:

1. The employer initiated criminal charges against Mr Pickard, leading to his arrest on 24 May 2018.

2. Upon Mr Pickard’s release on bail, the employer filed additional charges against him leading to his continued detention.

3. The employer also prevented Mr Pickard from returning to the workplace after his second release on bail.

4. Mr Pickard was handed a letter of discharge upon attempting to return to work.

5. Mr Pickard was instructed by Ms Maria Mbeeli, an official of the employer, not to come near the workplace when he returned to work to render services under his employment contract.

31. Based on the above, counsel for Mr Pickard submitted that his absence was neither wilful nor without cause but was the result of the employer’s actions. Counsel also referred to the South African case of Member of the Executive Council for the Department of Education Western Cape Government v Jethro N.O & another³, which is on all fours with Njathi in so far as the question of absence of wilfulness is concerned. The case concerned s 14(1) of the Employment of Educators Act 76 of 1998, which in all material respects is in pari materia with
    s 24(5)(a)(i) of the PSA.

32. The court in that case reasoned thus:

‘. . .There is no numerus clausus of factors. Much will depend on the facts and circumstances of the case. Relevant considerations include: i) the reasons of the absence; ii) the duration of the absence; iii) the conduct of the educator prior and subsequent to his or her deemed discharge; iv) the impact of the absence on the employer; v) the whereabouts of the educator during the period of absence; vi) the practicality and tolerability of a continued employment relationship; and vii) the availability of alternative processes and solutions to the problem that led to the educator’s absence.’

33. According to Mr Chibwana, the employer did not dispute Mr Pickard’s evidence during arbitration – and no contradicting evidence was led by the employer – that Mr Pickard deliberately absented himself without the employer’s knowledge.

Analysis

Mamasedi case

34. Before the hearing, this Court invited the parties’ counsel to address it on the relevance of the Constitutional Court of South Africa case of Mamasedi v Chief of South African Defence Force & others⁴, which interpreted a similarly worded deeming provision of the South African Defence Act 42 of 2002.⁵ In that case Zondo CJ held that the deeming provision did not apply in circumstances where an employee was deemed dismissed for absence on days that he was not required to be on duty. On the facts before us, it was not Mr Pickard’s case that, of the days computed by the employer as part of the days he had been absent from work, some were days that he was not by law required to work. Mamasedi is therefore not of much assistance in the present matter.

Construing deeming provisions

35. What is the import of a deeming provision, and how should it be construed? As Lord Bridge put it in Fowler v Revenue & Customs Commissioners⁶:

‘(1) the extent of the fiction created by a deeming provision is primarily a matter of construction of the statute in which it appears.

(2) For that purpose the court should ascertain, if it can, the purposes for which and the persons between whom the statutory fiction is to be resorted to, and then apply the deeming provision that far, but not where it would produce effects clearly outside those purposes.

(3) But those purposes may be difficult to ascertain, and Parliament may not find it easy to prescribe with precision the intended limits of the artificial assumption which the deeming provision requires to be made.

(4) A deeming provision should not be applied so far as to produce unjust, absurd or anomalous results, unless the court is compelled to do so by clear language.

(5) But the court should not shrink from applying the fiction created by the deeming provision to the consequences which would inevitably flow from the fiction being real. . . .’

36. Closer to home, in S v Rosenthal⁷ it was recognised that a deeming provision has no technical meaning and ‘its precise meaning and especially its effect, must be ascertained from its context and the ordinary canons of construction’. Trollip JA went on to observe that deeming provisions have one of the following meanings:

‘That which is deemed shall be regarded as accepted (i) as being exhaustive of the subject-matter in question and thus excluding what would or might otherwise have been included therein but for the deeming, or (ii) in contradistinction thereto, as being merely supplementary, i.e., extending and not curtailing what the subject-matter includes or (iii) as being conclusive or irrebuttable, or (iv) contrarily thereto, as being merely prima facie or rebuttable. I should add that, in the absence of any indication in the statute to the contrary, a deeming that is exhaustive is also usually conclusive, and one which is merely prima facie or rebuttable is likely to be supplementary and not exhaustive.’

37. It is therefore clear that a deeming provision should not be given an interpretation that leads to an absurd result or one that produces an injustice.

38. Before I discuss the proper construction to be placed on s 24(5)(a)(i) of the PSA, it is important to appreciate the procedural imbalance created by the deeming provision as between the employer and the employee.

39. Because Mr Pickard is an employee as defined in s 1 of the Labour Act, the starting point is s 33 of that Act. In terms of s 33(1)(a) of the Labour Act, an employer ‘must not, whether notice is given or not, dismiss an employee without a valid and fair reason’. According to subsecs (4)(a) and (b) of s 33 of the Labour Act, upon proof of a dismissal in proceedings concerning a dismissal, it is presumed, unless the employer proves the contrary, that the dismissal is unfair. The employer thus bears the onus to prove that an employee’s dismissal is fair and the employee enjoys the procedural advantage of a disciplinary hearing under the Labour Act.

40. On the contrary, if the jurisdictional facts exist for the deeming provision to kick in, the employer is relieved of the statutory obligation to conduct a disciplinary hearing and to dismiss only after following a fair procedure and for a valid reason. Thus, once the deeming provision applies, the employee has no right to a disciplinary hearing and loses the protection afforded by the Labour Act. He or she is deemed dismissed and must persuade the PSC to recommend reinstatement to the Prime Minister – and then hope that the Prime Minister will favourably exercise the discretion to reinstate him or her. As demonstrated by the facts of the present case, that is not an easy hurdle to cross because the onus has shifted and the employee must justify reinstatement.

41. Against that backdrop, I have to consider whether the legislature intended that the deeming provision would be available to an employer who is aware of an employee’s absence from work because of the employer’s deliberate action to invoke the criminal law for suspected wrongdoing on the part of the employee.

42. Njathi, Mkhwanazi and Member of the Executive Council for the Department of Education are all authority for the proposition that the deeming provision would not apply where the employee’s absence was not wilful. As Murphy AJA observed in Member of the Executive Council for the Department of Education at para 34:

‘. . . the purpose of section 14(2) is for the efficient removal of employees who have absconded, and is intended to be used sparingly only in cases where the employer is unaware of the whereabouts of an absent employee or if the employee has evinced a clear intention not to return to work.’⁸

43. And as Hugo J stated in Mkhwanazi v Minister of Agriculture & Forestry, Kwazulu⁹:

‘It is significant that both sections employ the phrase “absents himself” which clearly imports an element of volition. When an employee has been absent from work for more than a month without leave or permission the employer is placed in the invidious position of not knowing (a) why the employee is absent and (b) how long he will remain absent. The section comes to the employer’s rescue by deeming a discharge, so enabling the post to be filled and the work to continue. As the section is worded, however, the deeming provision only comes into operation if the officer has “absented himself”, and this the employer would not in most cases know about.’

44. And that:

‘If at that time he is able to show that his absence from work was not voluntary, then the deemed misconduct and his discharge must necessarily fall away.’¹⁰

45. Most importantly, the court added:¹¹

‘When [the employee who was absent from work in excess of 30 days] reports for duty again the commission is enjoined to follow certain procedures aimed at his possible re-employment. If at that time he is able to show that his absence from work was not voluntary, then the deemed conduct and his discharge must necessarily fall away. If he is able to show that, then he may still persuade his erstwhile employers to re-employ him. At this point and at this level the audi alteram partem rule applies.’

46. Relying on Mkhwanazi, Strydom JP commented thus regarding dismissal in terms of s 24(5)(a):¹²

‘To decide whether a dismissal in terms of s 24(5) can be said to be for a fair and valid reason and achieved by a fair procedure, one must look at all the circumstances. First and foremost is in my view the clear implication that the act of absence is by volition. This, so it seems to me, excludes conditions such as amnesia etc. Secondly, there is the extended period which is required before the deeming clause becomes operative. So even if some or other necessity brings about the absence of an employee from his or her duties, one can hardly envisage circumstances which would keep an employee absent for a period exceeding 30 days. In any event in this day and age where everybody has at least access to a telephone or fax machine, an absence of this nature can hardly occur without communication to the authorities in an endeavour to regularise such absence.’ (Empasis mine)

47. The trilogy of cases (Mkhwanazi, Njathi and Member of the Executive Council for the Department of Education) were correctly decided. Therefore, I do not agree with Mr Kasita that the ‘absence’ in the deeming provision does not require an element of volition.

48. In my view, s 24(5)(a)(i) is a rebuttable deeming provision. The legislature could not have intended it to be conclusive and irrebuttable, as that would lead to manifest absurdity and an injustice. It follows that when an official who has been absent from official duty reports for duty again, and is at that time able to show that his or her absence from work was not voluntary, the deemed misconduct and his discharge must necessarily fall away.

49. As I understood the argument made on behalf of the employer, the employer’s ignorance of the true reason for an employee’s absence is the justification for the deemed dismissal. How then can the presumption apply when the common cause facts establish the very opposite of the mischief the employer says the section is intended to achieve? A literal interpretation of the deeming provision contended for by the employer would produce an absurd result.

50. On a proper construction of s 24(5)(a)(i), a deemed dismissal can only arise if the employee’s absence was capable of being factually and or lawfully excused by the employer. The manner in which the deeming provision has been used in the present case presupposes that Mr Pickard’s absence was susceptible of being excused when in truth and reality it was not.

51. The deeming provision is not intended to be used by the employer to relieve itself of the statutory obligation to dismiss an employee for a substantively and procedurally fair reason when clearly that is the fair and reasonable thing to do so as to respect the rights of the employee under the Labour Act.

Law to the facts

52. The employer laid a criminal complaint of sufficient gravity to justify the arrest and detention of its employee. Having done that, the employer must reasonably have foreseen that calling the law in aid in those circumstances could lead to the employee’s lawful detention without bail being granted. After all, the offence for which the employer laid a criminal complaint against Mr Pickard is one which, under s 60 of the Criminal Procedure Act 51 of 1977, an accused can be denied bail in the interest of justice regardless of whether the accused is not a flight risk.

53. Although the employer maintains that the instruction not to return to work was irrelevant as the 30-day period had elapsed, it is clear that Mr Pickard had no intention of abandoning work and would have resumed duties but for the employer’s actions.

54. What ought to have happened is that when he reported again for duty, the employer should have regarded the deeming provision as having fallen away because Mr Pickard’s absence was not voluntary. Nothing stopped the employer from instituting disciplinary proceedings against Mr Pickard because of the conduct that led to his arrest in the first place.

55. Contrary to the employer’s suggestion otherwise, PSSR D.1. Part B found no application to Mr Pickard’s situation because his absence for over 30 consecutive days was not as a result of his being convicted or the charges not being withdrawn against him during the 30 days. The appeal has no merit and must fail.

The remedy

56. Before the arbitrator, the employer resisted Mr Pickard’s request for reinstatement and back pay on the basis that his dismissal was procedurally and substantively fair because he was dismissed by operation of law. The arbitrator disagreed with the employer’s interpretation of s 24(5)(a)(i) of the PSA and found that the dismissal was procedurally and substantively unfair. That result was confirmed by the Labour Court.

57. I have rejected the employer’s interpretation of s 24(5)(a)(i) of the PSA and confirmed that Mr Pickard’s dismissal was procedurally and substantively unfair. Mr Pickard’s reinstatement by the arbitrator was, therefore, proper and justifiable.

58. The arbitrator ordered Mr Pickard’s reinstatement in his ‘previous or comparable position with effect from 21 November 2022’ and to pay him ‘his salary from the date of dismissal till the date of finalization of this matter to wit:

‘1. 24 May 2018 to 13 October 2022 . . . equal to 52 months: (monthly salary of N$18 492, 58 x (52 months) = N$961 614,16.

. . .

2. This amount is payable on or before 11 November 2022 at 12h00 and proof of payment must be forwarded to this Office.

3. The above amount attracts interest as prescribed by law if not paid on the stipulated date and time.’

59. In the appeal to the Labour Court, the employer advanced a ground of appeal that the arbitrator erred ‘by reinstating and awarding [Mr Pickard] a total amount of N$961 614,16 while [Mr Pickard] was clearly not present for his official duties during the period exceeding 30 consecutive days’.

60. A reading of the Labour Court’s written reasons does not show if that ground of appeal was pursued a quo. The operative order by the Labour Court was simply to dismiss the appeal.

61. The employer’s grounds of appeal to this Court against the Labour Court’s order make no reference to either the order of reinstatement, nor that of compensation. In oral submissions before this Court, the employer’s counsel submitted that if the appeal fails and this Court affirms the arbitrator’s and the Labour Court’s conclusions that Mr Pickard’s dismissal was procedurally and substantively unfair, the matter of quantum must be remitted to the arbitrator. Counsel for Mr Pickard argued against that proposition as it is not supported by the employer’s grounds of appeal to this Court. I agree with Mr Chibwana that this Court was not asked to consider the correctness of the order on quantum granted by the arbitrator and I will consequently refrain from doing so.

62. What is significant though is that Mr Chibwana accepted during oral argument that during the period that Mr Pickard was in lawful custody, he was not entitled to remuneration for work not done. In other words, no work, no pay!

63. It also bears mention that in the letter of 4 July 2018 the Permanent Secretary of Finance had informed Mr Pickard as follows:

‘In terms of the Public Service Staff Rule D.II, a staff member who leaves the Public Service, for any reason whatsoever, shall be paid a leave gratuity (in cash value) in respect of vacation leave which accrued to him/her, but not granted before the date of termination of his or her services. Payment of your leave gratuity is being processed and the calculation of the cash value thereof is to be done as per the prescribed formula stipulation in the said Staff Rule.’

64. Mr Chibwana during oral argument submitted that Mr Pickard was paid his leave gratuity. The arbitrator’s award is silent on whether that leave gratuity is excluded from the quantum awarded.

65. The net result is that, in law, Mr Pickard had not been dismissed and is entitled to be paid all his arrear remuneration for the period that he was prevented by his employer from returning to work to tender his services. That period begun to run from 28 August 2019 to date, and will of course exclude the period that he was in lawful custody and did not as a result render any services to the employer. Also to be excluded is any leave gratuity already paid.

Costs

66. Mr Pickard is entitled to his costs in the appeal in respect of instructing and instructed counsel.

Order

67. In the result:

The appeal is dismissed, and the appellants, jointly and severally, the one paying the other to be absolved, are ordered to pay the costs of the second respondent in the appeal, to include the costs of one instructing and one instructed legal practitioner.

__________________

DAMASEB DCJ

__________________

SHIVUTE CJ

__________________

ANGULA AJA

APPEARANCES

APPELLANTS: T Kasita (with him J Ncube)

Instructed by Office of the Government Attorney

SECOND RESPONDENT: T Chibwana

Instructed by Brockerhoff & Associates