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2024
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[2024] ZALCJHB 27
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Gauteng Department of Health v Sjolund A (JR246/16) [2024] ZALCJHB 27 (7 February 2024)
In
the Labour Court of South Africa, Johannesburg
Not Reportable
case
no:
JR 246/16
In
the matter between:
GAUTENG
DEPARTMENT OF HEALTH
Applicant
And
SJOLUND
A
PUBLIC
HEALTH AND SOCIAL
DEVELOPMENT
SECTORAL BARGAINING COUNCIL (“PHSDSBC”)
First
Respondent
Second
Respondent
NUPSAW
OBO XENGE L AND 5 OTHERS
Third
Respondent
Heard
: 24 January 2024
Delivered
: 7 February 2024
JUDGMENT
NORTON
AJ
Introduction
1.
This case deals with an unprotected strike, misconduct during the
strike, and the inordinate delay by the employer, the
Gauteng
Department of Health (the “Department”), to prosecute a
review of an arbitration award in favour of the NUPSAW
union members,
following their dismissal in May 2015. The case raises legal issues
regarding the jurisdiction of the PHSDSBC (the
“Bargaining
Council”) to arbitrate misconduct cases in the context of
unprotected strikes, and the test for the reinstatement
of a review
application once it has lapsed. Ultimately I must decide whether the
Department has made out a sufficient case to grant
their application
to reinstate their lapsed review, and related thereto, whether to
condone the delay in prosecuting the review
application
2.
I set out the factual background below, and then proceed to set out
the relevant legal principles that arise, thereafter
I apply the law
to the facts and finally I will hand down my ruling.
Factual
Chronology
3.
Between the 13 – 17 October 2014, health workers went on an
unprotected strike. Regrettably as is too often the case
in
industrial relations disputes it was marred by periodic incidences of
violence.
4.
The Department charged employees with misconduct - bringing the
department into dispute, preventing personnel from fetching
ambulances, damage to 9 vehicles and singing vulgar songs about
management – all in the context of the unprotected strike.
Each
charge is prefaced with reference to the unprotected strike between
13 – 17 October, and then continues with the particularities
of
the misconduct.
5.
Employees were summonsed to a disciplinary enquiry, which sat over 8
sessions from December 2014 – April 2015. The
employees were
found guilty and dismissed.
6.
The union then referred an unfair dismissal dispute to the PHSDSBC.
7.
At the first hearing, the Department raised a point
in limine
that the Bargaining Council had no jurisdiction to entertain the
matter. The Department argued that as the basis of the misconduct
arose during the occurrence of an unprotected strike, the fairness of
the dismissals should be ventilated in a trial in the Labour
Court.
Presumably the Department sought to rely on section 191 (5)(b)(iii)
of the LRA
:
“…
the employee may refer the dispute to the Labour
Court for adjudication if the employee has alleged that the reason
for dismissal
is the employee’s participation in a strike that
does not comply with the provisions of Chapter IV
(ie Strikes and
Lockouts);”
8.v
The arbitrator, considered the submissions from the employees, and
the charges, and found that the reason for dismissal was
misconduct.
In such circumstances section 191(5)(a)(i) applies.
“
The
council or the Commission must arbitrate the dispute at the request
of the employee if the employee has alleged that the reason
for the
dismissal is related to the employee’s conduct or capacity
unless paragraph b (iii) applies
”
9. On
22 July 2016, the arbitrator dismissed the jurisdictional challenge,
and the arbitration proceeded in September 2016.
10.
On 15 September 2016, the Commissioner found that the Department had
failed to discharge the onus that the dismissals
were fair and
ordered reinstatement with backpay to the date of dismissal.
Presumably the fact that the Department led no witnesses,
compromised
their case. It would appear that the Department failed to diligently
present its case at the Bargaining Council, and
that was the genesis
of a prolonged dispute from which the Department now seeks to
recover.
11.
On 15 November 2016 the Department filed their review papers and did
very little thereafter to prosecute the matter. The
union filed a
notice of intention to oppose two days later, and for years
thereafter persisted with their opposition to the review,
seeking to
enforce the award. In this respect for example the union:
11.1. Approached
the CCMA to certify the award (which the CCMA did) on 25 February
2017;
11.2. Instructed
the Sheriff from Halfway House to execute on 15 May 2017 (he made an
inventory of goods at the Department’s
premises); and
11.3. Launched a
Rule 11 application to dismiss the review due to lack of diligent
prosecution on 6 February 2018.
12.
The Department in contrast tended to respond to the union’s
litigation efforts without paying attention to the review
application
in which they were
dominus litus.
So for example on 5 July
2017 faced with the execution processes underway the Department
approached the Labour Court on an urgent
basis for an order staying
the enforcement of the arbitration award pending the outcome of the
review. On 27 July 2017 Justice
Whitcher granted the order sought.
13.
Around 18 September 2017, the Department filed a Supplementary
Affidavit, in their review application, essentially setting
out their
key challenge to the arbitration award - which is that the Bargaining
Council had no jurisdiction to arbitrate the matter
as the reason for
the dismissal concerned misconduct during an unprotected strike, and
for that type of dispute only the Labour
Court had jurisdiction.
14.
In February 2018 the union launched their Rule 11 application to
dismiss the review. The Department filed opposing papers.
Various
legal skirmishes not relevant to the case before this court then
ensued,
15.
On 19 May 2021, the Department’s attorneys, Viljoen Attorneys
withdrew as attorneys of record.
16.
The Rule 11 application was heard by Justice van Niekerk on 6 October
2021. In short the court found that the application
to review had
been withdrawn by virtue of the application of the Practice Manual,
and a Rule 11 application was unnecessary, as
there was no review
application pending in the Labour Court.
17.
The Department finally stepped into gear and proceeded to launch an
application to reinstate the review on 21 October
2021. The
Department made the following submissions:
17.1. The purpose
of the application was to reinstate the review, condone the late
filing of the record, and condone the failure
to prosecute the review
application within the 12 month period.
17.2. On the
subject of “degree of lateness” the Department provided
no time period. The Practice Manual (clause
11.2.7) refers to a 12
month period within which to prosecute a review and approach the
registrar for a hearing date. The 12 month
period come to an end in
November 2017. The review application had been left in abeyance for
close on 4 years. An inordinately
long period.
17.3.
The reasons
for the delay were presented as “
some
litigation between the parties up to this stage
”,
as well as “
the
impact of the current worldwide epidemic
”
[1]
and delays occasioned by their attorneys Viljoen Attorneys “
We
had instructed Viljoen Attorneys to prosecute the review
application…we have since become aware that there has been
non-compliance
with the rules of this court
”
[2]
.
The final reason presented was difficulty obtaining the file from
their Attorneys.
17.4. Under
“
Prospects of success
’ the Department restates the
jurisdictional argument that the bargaining council lacked
jurisdiction, and that the correct
forum was the Labour Court,
because the reason for the dismissal was participation in an
unprotected strike.
17.5.
The
Department argued that the interests of justice weighed in their
favour noting the health services the employees perform, and
the
criminal conduct of the workers during the strike.
[3]
(which
was denied by the union).
18.
The application to reinstate was finally set down on 24 January 2024
for hearing, some 27 months after the application
was launched.
Legal
issues
19.
The facts trigger a consideration of the following legal issues:
19.1. The
provisions of the Practice Manual;
19.2. Whether the
Applicant has discharged the onus for reinstatement of the review
application and a consideration of the
factors constituting good
cause.
20.
The provisions of the Practice Manual
20.1.
According to clause 11.2.2 “…
records must be
filed within 60 days of the date on which the applicant is advised by
the registrar that the records has been received.”
20.2. According to
Clause 11.2.3 “
If the applicant fails to file a record
within the prescribed period (60 days from the registrar notifying
the applicant that the
record may be collected), the applicant will
be deemed to have withdrawn the application …
”
20.3. Clause 11.2 7
is relevant and reads, “
A review application is by its
nature an urgent application. An applicant in a review application is
therefore required to ensure
that all the necessary papers in the
application are filed within 12 months of the date of the launch of
the application (excluding
heads of argument) and the registrar is
informed in writing that the application is ready for allocation for
hearing. Where this
time limit is not complied with, the application
will be archived and be regarded as lapsed unless
good
cause
is shown why the application should not be archived
or be removed from the archive
.” (my emphasis)
20.4. According to
Clause 16.2 of the Practice Manual, “
A party to a dispute in
which the file has been archived may submit an application on
affidavit, for the retrieval of the file…
”
20.5.
In this
case, there has been no complete record of the arbitration filed by
the Department. The registrar notified the parties around
the 16
November 2016 that a bundle and recording was ready to be collected.
The 60 days would have expired around February 2017.
When challenged
in court about this omission, the counsel for the Applicant explained
that a record was unnecessary as the issue
was a legal one (meaning
the characterisation of the dispute and the relevant
fora
which flowed which had a bearing on jurisdiction.) I disagree,
principally because the correct characterisation of a matter arises
from an objective conspectus of the material facts. In circumstances
in which there is disagreement about the correct characterisation
of
a dispute the Labour Appeal Court has opined that the true nature of
the dispute must be ascertained from the objective facts.
[4]
Absent the record, the analysis of the characterisation may be
found wanting.
20.6. The review
would have lapsed around November 2017. In October 2021, some 4 years
later the Department sought to reinstate
the review.
20.7.
The
Applicant bears the onus of establishing good cause to reinstate the
review. In
Samuels
v Old Mutual Bank
[5]
Tlaletsi DJP held at paragraph 14,
“
The
consolidated Practice Manual which came into operation on 2 April
2013 constitutes a series of directives issued by the Judge
President
over a period of time. It’s purpose is inter alia to provide
access to justice by all those whom the Labour Court
serves; promote
uniformity and / or consistency in practice and procedure and set
guidelines on standards of conduct expected of
those who practice and
litigate in the Labour Court. Its objective is to improve the quality
of the court’s service to the
public, and promote the statutory
imperative of expeditious dispute resolution
.”
20.8. At paragraph
17 the court held,
“
In
essence an application for the retrieval of a file from the archives
is a form of an application for condonation for failure
to comply
with the court rules, time frames and directives. Showing good cause
demands that the application be bona fide; that
the applicant provide
a reasonable explanation for the default; and show that he / she has
reasonable prospects of success in the
main application, and lastly
that it is in the interests of justice to grant the order. It has to
be noted that it is not a requirement
that the applicant must deal
fully with the merits of the dispute to establish reasonable
prospects of success. It is sufficient
to set out facts which, if
established, would result in his / her success
…”
21.
Whether the Applicant has discharged that onus for reinstatement of
the review application, and a consideration of the
factors
constituting “good cause”
21.1. In summary
then “good cause” as evidenced in the
Samuels
case
denotes the following factors: bona fides; a reasonable explanation
for the delay; reasonable prospects of success in the
main
application; and the interests of justice.
21.2. I do not
doubt that the Department is
bona fides
in their efforts to
reinstate the review application, and ultimately to prosecute the
review to finality. However the matter doesn’t
end there. The
Department was prepared to proverbially sit on its hands whilst the
employees went to great length to execute
the award, and when faced
with the prospect of execution, then defended the matter. The
Department fails to explain why it didn’t
set the review down
much earlier; they filed their Supplementary Affidavit in September
2017, and then the line went dead. Surely,
noting that the employees
were determined in their efforts to execute, it was incumbent on them
(and patently prudent) to have
the review heard expeditiously within
the requisite time frame of 12 months (ie by November 2017) as set
out in clause 11.2.7 of
the Practice Manual.
21.3. For the delay
to prosecute the review the Department gives two main reasons,
firstly COVID and the detrimental effect
on parties to litigate; and
secondly the poor performance of their attorneys who appear to have
been dilatory in the extreme. I
don’t accept either
explanation.
21.4. It is true
that COVID principally had an impact on parties abilities to
efficiently litigate in 2020; but from around
the latter half of that
year parties were engaging by way of MS Teams and Zoom; and later on
by way of hybrid means. In July 2020
the Court issued such a
directive, which was reaffirmed in Directive 01 / 2021 on 15 January
2021.
21.5. The
Department gives no adequate explanation for the time from 2018 to
2021 as to why it neglected to prosecute the
review and arrange a set
down.
21.6.
It is trite
that there is a limit to which a litigant can blame the conduct of
their attorney for the poor management of their matter.
[6]
The Department is part of government; litigation against the
state happens on a daily basis. It is not reasonable for the
Department to instruct attorneys and then abdicate their
responsibility to monitor the case. Follow up meetings or email
communication
was reasonably required, as well as written progress
reports on the matter which would have enabled the Department to
check whether
the attorneys were diligently pursuing their review
application. Surely, the Department was alerted as early as May 2017
to the
execution intentions of the employees (the sheriff did arrive
at their offices to prepare an inventory of items); as well as the
Rule 11 Application to dismiss the review in February 2018.
21.7. As an
applicant the Department batted away the employees execution efforts,
and neglected to pursue their own case,
which was the review of the
adverse arbitration award. The Court had granted the Department a
stay in the execution pending the
outcome of the review. It is
inexplicable why the Department, following Justice Whitcher’s
order, did not simply set in motion
the necessary steps to prosecute
the review. All in all I am not satisfied that the Department’s
explanation for their delay
is satisfactory. Far from it.
21.8. I now turn to
the issue of prospects of success in the review application. I do
understand that the Department simply
has to set out sufficient
facts, which could give rise to reasonable prospects of success. The
Department hangs it’s entire
review on the characterisation of
the dispute, the related
fora
and the issue of jurisdiction.
21.9. The wording
of the charges triggers a debate between the parties about whether or
not the Bargaining Council had jurisdiction
to arbitrate the dispute.
In brief, if the reason for the dismissal is correctly characterised
as misconduct then section 191(5)(1)(a)(i)
of the LRA applies and the
Bargaining Council has jurisdiction to arbitrate the fairness of the
dismissals; but if the reason for
the dismissal is correctly
characterised as participation in an unprotected strike then section
191(5)(b)(iii) applies and the
Labour Court has jurisdiction to
adjudicate the fairness of the dismissals.
21.10. Short of
repeating myself the Department argues that the misconduct took place
in the context of an unprotected strike,
and that the Bargaining
Council had no jurisdiction to hear the matter, instead the dispute
should have been adjudicated by the
Labour Court. The Department’s
argument is founded on section 191(5)(b)(iii) of the LRA. In turn the
employees argue that
they were dismissed for misconduct, and that
section 191(5)(a)(i) applies, that therefore the Bargaining Council
is the correct
fora
to hear their unfair dismissal dispute.
21.11.
The LAC in
SA
Transport & Allied Workers Union & Others v MSC Depots
[7]
found that misconduct during an unprotected strike “
was
directly related to the strike action. It was not something that
happened independent of the strike action…
”.
The Labour Court was the appropriate forum to adjudicate the fairness
of the dismissals.
21.12.
In
SACCAWU
v Sun City
[8]
Justice Prinsloo, found that employees who were charged with
absenteeism, incitement and intimidation would ordinarily be dealt
with by the CCMA, (as misconduct) even though the charges related to
an unprotected strike. However, the employees were also charged
with
participating in an unprotected strike and that engaged the
jurisdiction of the Labour Court.
21.13. In the case
before me the misconduct took place during an unprotected strike, but
the employees were not dismissed
for participating in an unprotected
strike, but for blocking access to ambulances, vandalising cars and
singing derogatory songs
about management.
21.14. A perusal of
the report on the internal disciplinary enquiry, prepared by the
chairperson, attached as an annexure
to the Rule 11 Application reads
as follows
”
It is common
cause that employees were not charged with participating in an
unprotected strike but rather were charged with acts
of misconduct
that emanated during the strike
...”
[9]
21.15.
Justice van
Niekerk comments in obiter in his judgment concerned with the Rule 11
application that “
The
three charges brought against the employees related to what was
alleged to be misconduct by them; there was no charge to the
effect
that they had participated in an unprotected strike
”
[10]
21.16. It seems to
me, having considered the cases above, that if an employee commits
misconduct during an unprotected strike,
but is not charged for
participating in the unprotected strike, then the CCMA has
jurisdiction. If on the other hand the employee
is charged with
participating in an unprotected strike; or is charged as such and is
charged with misconduct; then the Labour Court
has jurisdiction to
determine the fairness of the dismissal.
21.17. Noting this
analysis, as well as the comment by the presiding officer in the
internal enquiry I am inclined to find
that the Department’s
prospect of success are weaker than the union’s.
Discussion
and analysis
22.
The Department has not filed a complete record and have given their
reason (that the dispute turns on legal argument).
I am unpersuaded,
noting that the record could have provided factual context and
clarity to the reason for the dismissals.
23.
My greater concern is the delay in prosecuting the review, in that
the Department waited some 4 years before seeking to
reinstate the
review, despite warning bells from employees intent on executing the
award as early as 2018. This is an inexcusable
and inordinate delay.
Blaming their attorney does not save them. The jurisprudence in this
regard is trite.
24.
With respect to the prospects of success, in my view they lie more
favourably towards the union than the Department. In
any event it is
well known that if the delay is inordinate and largely unexplained,
(which in this case it is) the consideration
of prospects of success
is minimal in the conspectus of condonation factors.
25.
For these reasons, I am unpersuaded by the merits of the
reinstatement application.
26.
In the circumstances I make the following order:
Order
27.
The reinstatement application is dismissed.
28.
The delay in prosecuting the review is not condoned.
29.
No order as to costs.
D
Norton
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant
Adv Buthelezi
Instructed
by:
State Attorney JHB
For
the Respondent
Mr Mogotsi (Union Official - NUPSAW)
[1]
Paragraphs 22 and 23 of the Founding Affidavit to reinstate
[2]
Paragraph 25
[3]
Paragraphs 49 and 50.
[4]
Davis AJ at paragraph 18 in
G45
Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union of SA
and others (2016) 37 ILJ 1832 (LAC)
[5]
(2017) 38 ILJ 1790 (LAC)
[6]
Refer for example to
Saloojee
and Another NNO v Minister of Community Development
1965 (2) SA 135
(A). See too
UTI
South Africa v Pilusa and Others
(JR 1732 / 12)
[7]
(2021) 42 ILJ 127 (LAC)
[8]
(2018) 39 ILJ 436 (LC)
[9]
Pg 16
[10]
Para 2 of the judgment