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[2009] ZALAC 23
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Carstenhof Clinic v Commission for Conciliation Mediation and Arbitration and Others (JA44/2006) [2009] ZALAC 23 (25 February 2009)
34
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
CASE NO JA44/2006
In the matter between:
CARSTENHOF CLINIC
APPELLANT
and
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION
FIRST RESPONDENT
BIERMAN D NO.
SECOND RESPONDENT
DEMOCRATIC NURSING ASSOCIATION OF
SOUTH AFRICA
THIRD RESPONDENT
VENTER M
FOURTH RESPONDENT
____________________________________________________________________
JUDGMENT______________________
Tlaletsi AJA
[1] There are two opposed applications for the
condonation of instances of non compliance by the appellants with the
rules of this
Court. The first application relates to the appellants
failure to comply with Rule 5(1). In terms of this rule the appellant
was
obliged to deliver the notice of appeal within 15 court days
after leave to appeal had been granted. In this case notice of appeal
was filed 27 days out of time. The second application relates to a
failure to comply with Rule 5(17). In terms of Rule 5(8) the
record
of appeal is required to be delivered to the Registrar within 60
court days of the date of the order granting leave to appeal
unless
the appeal is noted after a successful petition for leave to appeal
in which case it must be delivered within the period
fixed by the
court under Rule 4(9). Rule 5(17) provides that:
“
if the
appellant fails to lodge the record within the prescribed period, the
appellant will be deemed to have withdrawn the appeal,
unless the
appellant has within that period applied to the respondent or the
respondent’s representative for consent to an
extension of time
and consent has been given. If consent is refused the appellant may,
after delivery to the respondent of the
notice of motion supported by
affidavit, apply to the Judge President in chambers for an extension
of time. The application must
be accompanied by proof of service on
all other parties. Any party wishing to oppose the grant of an
extension of time may deliver
an answering affidavit within 10 days
of service on such party of a copy of the application
”.
In this case the complete record of
the appeal was lodged 19 days out of time. The explanation given by
the appellant for non compliance
in both instances is that the
attorney principally responsible for handling with the matter on
behalf of the appellant had been
disposed due to both bereavement and
illness and the matter had then been entrusted to an attorney with no
experience in the practice
of Labour law. The attorney says that lack
of experience and failure to read and familiarise herself with the
rules of this Court
led her not to comply with the rules of this
Court in the prosecution of the appeal. She, however, did request an
extension of
time from the respondent’s attorney in terms of
Rule 5(17) and same was refused. The respondent’s attorneys
adopted
the attitude that the appeal had already lapsed. Her request
to the respondent’s attorney for an extension of time may well
mean that she did read Rule 5(17) of the Rules which provides for the
making of such a request.
[2] The periods of delay in the appellant’s
failure to comply with the rules of this Court as set out above are
not excessive.
The merits of the appellant’s appeal are
reasonably arguable. In so far as the explanation for the delay is
concerned, the
explanation may not be wholly satisfactory but, when
all the factors are taken into account, I am satisfied that good
cause has
been shown for the appellant’s failure to comply with
the Rules of this Court. The merits of the appellant’s appeal
are reasonable accordingly, such failure is hereby condoned. This
being the case, a proper case has been made out to justify an
order
reinstating the appellant’s appeal after it was deemed to have
been withdrawn by virtue of Rule 5(17). The condonation
application
is therefore granted and the appeal is reinstated
[3] This is an appeal against a judgment of the Labour
Court in a review application brought by the second appellant against
an
arbitration award issued by the second respondent under the
auspices of the Commission for Conciliation, Mediation and
Arbitration
(CCMA) in a dispute referred to the CCMA by the third and
the fourth respondent for arbitration in terms of sec 191 of the
Labour
Relations Act, 1995 (Act 66 of 1995) (“the Act”).
The second respondent is a commissioner of the CCMA. The third and
fourth respondents contended that the fourth respondent (“the
employee”) who was at all relevant times employed by
the
appellant was unfairly dismissed by the appellant. The appellant in
turn contended that the dismissal of the employee was both
substantively and procedurally fair. The employee is a member of the
third respondent which is a registered trade union recognised
by the
appellant (“the union”).
[4] The second respondent (“the commissioner”)
who arbitrated the dispute found that the dismissal of the employee
for
misconduct was procedurally fair but substantively unfair and
issued an award in terms of which the appellant was to pay the
employee
an amount equal to 8 months remuneration (R73 960-32) as
compensation within twenty one days. The commissioner made no award
as
to costs.
[5] Aggrieved by the finding and award of the
commissioner, the appellant brought a review application in terms of
section 145 of
the Act seeking an order reviewing and setting aside
the award and replacing it with an order to the effect that the
dismissal
of the employee was both substantively and procedurally
fair. The Labour Court dismissed the application for review. It
subsequently
refused the appellant leave to appeal to this Court.
Further aggrieved, this time by the order of the Labour Court, the
appellant
petitioned the Judge President of this Court for leave to
appeal against the order of the Labour Court. This Court granted such
leave.
Factual background
[6] The facts in this matter are largely common
cause. The appellant conduct its business as a private hospital. The
employee
was employed by the appellant as a member of its nursing
staff. She was at the time of the incident that led to her dismissal
employed
as a night supervisor. This position was the most senior of
the appellant’s nursing staff on the night shift.
[7] It is common cause that the appellant had a
written policy pertaining to emergency situations which had been
distributed to
all units. The policy was to the effect that once a
nurse had diagnosed a respiratory or cardiac pulmonary arrest on a
patient,
he/she was to institute an effective Cardiopulmonary
Resuscitation Procedure (“CPR”) within two to four
minutes and
immediately alert the available doctor on the premises to
the situation. If there was no doctor on the hospital premises, the
paramedics
had to be called in for assistance. The rationale of the
policy was that there be effective resuscitation measures from basic
life
support up to advanced life support to be practised by each and
every professional nurse. The policy provided further that the
nursing staff should engage a doctor to certify a patient dead. It
was expected of each nurse to make sure that he/she was proficient
in
all aspects of the CPR prescribed by the policy.
[8] Mr N W Ndlovu (“Mr Ndlovu”) was
admitted at the appellant clinic in the Intensive Care Unit (“ICU”).
He was a quadriplegic. Mr Ndlovu made a good progress towards full
recovery. He was as a result transferred to ward 3. He was
categorised as a patient who was not expected to die.
[9] In the early morning hours of 29 June 2001 Mr
Ndlovu died unexpectedly. In accordance with standard practice at the
appellant
when a patient has died unexpectedly, an investigation into
the events surrounding the death of Mr Ndlovu was conducted.
[10] Sister Lynn Cook (“Sister Cook”)
conducted the formal investigation into the circumstances surrounding
the death
of Mr Ndlovu. On the 3
rd
July 2007 she called
upon all the parties concerned to prepare the necessary documentation
for a formal enquiry. Arising from the
investigation, Sister Cook
held a
prima facie
view that Sister Warnet Tshabalala (“Sister
Tshabalala”), and the employee were negligent in failing to
give the patient
the optimal chance of survival by complying with the
appellants’ prescribed policies. Sister Tshabalala was in
charge of
the ward in which Mr Ndlovu had been accommodated when he
died
[11] It was then decided that a formal disciplinary
enquiry be held. The following charges were preferred against the
employee:
“
1. Professional
Negligence and Misconduct: on the sudden unexpected demise of Mr W
Ndlovu (no 6288) ward 3 on 29.06.2001 at 02.20
hours. You did not
A: Initiate
resuscitation and follow the hospital policy re÷ medical
emergencies and Obtaining Emergency Assistance.
B: Obtain Certificate of
Death by a Doctor at the time of death.”
[12] The employee’s disciplinary hearing was
convened on 13 July 2001. The chairperson of the enquiry found that
the appellant’s
policies relating to resuscitation were not
complied with and found the employee guilty. The employee was
dismissed.
[13] As pointed out already a dispute relating to
the employee’s dismissal became the subject of an arbitration
which was
held in January 2002. Prior to the arbitration the parties
concluded a pre−arbitration minute in terms whereof
they
agreed,
inter alia,
that the appellant’s policies
relating to resuscitation were applicable in this case and were
reasonable. Only two witnesses
testified at the arbitration. The
appellant tendered the evidence of Sister Cook who was its Nursing
Services Manager at the time
of the employees’ dismissal. The
employee testified on her own behalf.
[14] I am of the view that it would be more convenient
for the purpose of this appeal to start with the evidence presented
on behalf
of the union and the employee. The employee testified that
she started her nursing training in 1966 and that at the time of Mr
Ndlovu’s death she had 35 years experience. She had been a
night matron at the appellant for seven years. She testified that
on
30 June 2001 she took over from one Sister Viljoen in the evening.
Sister Viljoen reported to her that Mr Ndlovu was being transferred
from the ICU to the ward. She enquired from Sister Viljoen why they
were transferring him at night. Sister Viljoen told her that
the
wards had been busy during the day and they had arranged for a
“
special
” [nurse] for his assistance. The employee
testified that she also saw Mr Ndlovu when he was being transferred
to the ward.
He looked fine and relaxed to her. She remembered that
the previous evening Sister Cook had telephoned her and told her to
keep
an eye on the agency sister on duty as she was not doing her
documentation properly. The employee testified that the hospital was
busy that night and she spent most of her time in the casualty
section as well as doing her routine rounds within the hospital.
[15] The employee testified that Sister Janet Coleman
(“Sister Coleman”) came to her in ward 2 and reported
that ward
3 had phoned her earlier on and reported that Mr Ndlovu had
a “
high hick-up
” and that she was on her way
there. Sister Coleman was an agency sister who was working in the
ICU. An agency nurse is someone
who is not an employee of the
appellant but registered with an employment agency that was rendering
services on behalf of the appellant.
The employee then accompanied
Sister Coleman to ward 3. Prior to this, nobody had made a report to
her about Mr Ndlovu or that
they were not satisfied with nurse Ncina.
According to her it took about two to three minutes to move from ward
2 to ward 3 where
Mr Ndlovu was accommodated. She said that they
found sister Tshabalala standing at the door of ward 3, holding a
“
nierbakkie
” (kidney dish). She said that Sister
Tshabalala reported that Mr Ndlovu had died. When they entered the
ward, the “
neusbuis
’ (nostril tube) had already
been removed and those whom she found in the ward were busy removing
the “
drip
” from Mr Ndlovu. She said that Mr
Ndlovu’s pupils were enlarged and dilated and Mr Ndlovu
appeared ‘
grey
’ in complexion.
[16] The employee testified further that in all her
years as a nurse there had never been an instruction issued to nurses
to the
effect that only a doctor should be called to certify a
patient dead. She mentioned that as a sister she was also authorised
to
certify a patient dead. She testified that she had a look at Mr
Ndlovu and was sure that he was already dead. She could only remember
that Sister Coleman moved towards Mr Ndlovu’s bed but could not
see what she did at the bed. The employee testified that
she also
asked Nurse Ncina whether she knew how to remove the “
tracheostomi
tube
” and Nurse Ncina removed it. She also mentioned that
Sister Tshabalala had almost six (6) years experience at the
appellant
and knew all the policies.
[17] It is common cause that from the time that the
employee arrived in ward 3 up until she left no one applied the CPR
procedure
on Mr Ndlovu. It is further common cause that there was no
doctor present in the ward to attend to Mr Ndlovu. The employee
stated
that, if Sister Tshabalala felt that the CPR was necessary,
she would have immediately initiated it. She said that she had
trusted
Sister Tshabalala. She said that from her experience at the
appellant the doctors on duty did not like being called to certify
patients dead. The practice, according to her, was that the sister in
the ward would only telephone the sister in charge after telling
“
everybody
” so that she could have the documents
ready for the doctor to issue a death certificate.
[18] The employee confirmed that she had conducted many
resuscitation procedures in her career. She said that these had been
conducted
mostly in the ICU. On the night of Mr Ndlovu’s death
she asked sister Tshabalala if she had informed the doctor as well as
Mr Ndlovu’s family about Mr Ndlovu’s death and Sr
Tshabalala confirmed to her that she had done so. However, the doctor
did not come that night. The employee said that her knowledge of the
procedure was that when the nursing staff discovered on arrival
in
the ward, that a patient had just stopped breathing, a CPR procedure
had to be conducted and that the other staff as well as
the doctor
working in the casualty section would assist. However, she said, in
the case of Mr Ndlovu, he was no longer breathing
when they arrived
at his ward and he also did not appear as a person who had just died.
She said that she also knew that he was
not taking any medication
that could have caused his pupils to be dilated. According to her the
only medication that Mr Ndlovu
was taking was for his depression. She
also testified that she was also well aware that Mr Ndlovu did not
want to live any more.
[19] With regard to the disciplinary inquiry the
employee testified that she did not prepare herself properly for the
disciplinary
hearing. She was not aware that Sister Cook considered
this incident to be very serious. She was shocked that a person had
died.
She mentioned that she did not think of resuscitation at the
time but she said that as she thought back, she should have done CPR
with each and every patient to whom she had to attend. She testified
that she relied on Sister Tshabalala who was a trained and
experienced nursing sister. She said that she accepted Sister
Tshabalala’s word that the patient had died.
[20] Under cross−examination the employee was
referred to her hand─over report signed by her in which she
stated that
the patient “
passed away at “03:00
”.
She replied that she only accepted that the patient was dead and did
not look at the time. She also admitted that she never
contended at
the disciplinary enquiry as well as in the internal appeal hearing
that she was not given an opportunity to cross−examine
the
witnesses nor did she contend that she wanted to cross−examine
the authors of the documents that were presented during
the
investigation. She agreed that her internal appeal hearing was not
based on these grounds.
[21] The employee was further referred to the record
of the disciplinary hearing where she was asked whether she was in
the room
at the time the patient “
apparently
” died
and she had responded that “
I came into the room after,
,uhm, I do not know
”. Her response was that she only said
that she was not sure as she was depressed at the disciplinary
enquiry. She was also
referred to her evidence at the disciplinary
enquiry in which she was asked whether, when one of her nurses told
her that Mr Ndlovu
had died, she had checked the patient as “a
backup for the nurse or do you take her word
?” To this she
had responded “
No, I always checked
”. Her comment
was that, when she was telephoned, it was after some time as the
nurses could not get hold of her as she was
busy somewhere else.
[22] The employee was asked whether Mr Ndlovu was not
supposed to be resuscitated. She replied that Mr Ndlovu would have
been a
“
koolkoop
” (“cabbage”) had
resuscitation been successfully conducted on him. She insisted though
that resuscitation would
not have succeeded. She conceded that she
did nothing to ascertain whether the other nurses present who were
not the appellant’s
employees knew of the resuscitation
procedures. She further admitted that in the disciplinary enquiry she
had said that she had
not thought of resuscitation at the time, and
none was done in her presence and that she knew she was wrong. The
employee attributed
the admissions she made at the disciplinary
enquiry to her alleged depression and confusion during the enquiry.
She mentioned that,
given her experience in her work as well as her
experience in seeing dead people, she would still not have applied
the resuscitation
procedure on Mr Ndlovu.
[23] I now turn to the evidence tendered on behalf of
the appellant. Sister Cook testified that she was employed in the
nursing
services team as Patient Services Manager. She described her
main “
portfolio
” as being “
patient care
specialist
.” Her responsibilities entailed the “
holistic
overall care of a patient
” aimed at making sure that
quality service is rendered along with the safety of the patient. She
testified that on 2 July
2001 she received a routine “
handover
”
report from the Duty Manager who had been on duty for the weekend.
The report was about the death of Mr Ndlovu. His death
surprised her
because she had seen him when he was still in the ICU where he was
found to be “
predominantly
” well enough to be
transferred from the ICU to the general ward for his rehabilitation.
Sister Cook testified that the word “
certificate
of death
” in paragraph (b) of the charge above was a
typographical error and should have read “
certification
”
of death which meant physical certification that the patient was
dead. The explanation by Sister Cook means that the employee
was
alleged to have been negligent in that she did not call a doctor to
come to the ward and certify that Mr Ndlovu was, indeed
dead. The
charge did not relate to a death certificate.
[24] Sister Cook testified further that in order to
ensure that all staff members had knowledge of the applicable
policies; files
containing the policies were kept on all floors of
the hospital building and in the wards. The files were also updated
from time
to time. She said that it was the responsibility of the
most senior person to ensure that his or her subordinates knew the
policies
quite well and to see to it that they were followed. She
stated that CPR training was a “
prerequisite
” and
that all staff members who underwent an orientation programme had to
pass the CPR. By staff she referred to all the
employees employed on
a full time basis which included “
domestic cleaners
”.
She confirmed that the employee was familiar with the procedures and
that she had completed and passed her CPR training.
[25] Sister Cook testified that the CPR process that
was taught to the professional staff prescribed that, if a member on
entering
a place, finds a person unconscious, he/she was to check for
any hazards to himself or herself, check the responsiveness of that
person by touching and talking to him or her in order to establish
whether the person is in fact unconscious, or sleeping. She
said
that, if the person did not respond, the next step would be to open
an airway to ensure provision of optimum oxygen to the
person. One
would then assess or see if there is a “
pulse
”.
She testified that the normal place in an adult patient to assess the
pulse is on the “
Carotid
” which is the main artery
on the neck. She said that the assessment entails pressing the artery
for ten seconds to check
whether or not there is a pulse. If there is
no pulse, one would conduct a “
cardiac massage
” in
an effort to get the heart pumping again and, immediately, alert the
doctor who is on the premises.
[26] Sister Cook testified that on the night that
Mr Ndlovu died, the employee did not at all initiate the
resuscitation procedure
and did not ask pertinent questions as to
whether anybody had in fact initiated the resuscitation procedure
prior to her arrival.
Sister Cook said that Mr Ndlovu’s death
was categorised as unexpected as opposed to expected because he was
not terminally
ill. The patients who fall within the “
expected
death
” category are patients who might have had a stroke
and other major respiratory problems and who, on admission, might be
declared
by a doctor seriously ill and are not expected to live long.
Although a doctor would be notified if such a patient die, it would
not be necessary for the doctor to come to hospital in the early
hours of a morning to see the patient. Mr Ndlovu was not in such
a
category. An “
unexpected death
” is where none of
the above circumstances exists and although a patient is sick,
recovery is expected. Should such a patient
die, the doctor must be
notified immediately and he or she would have to come and see whether
something can be done. In this case
Mr Ndlovu was removed from the
ICU because of the progress he had already made towards full
recovery.
[27] Sister Cook testified that in terms of the
practice at the appellant there was always a doctor on the premises
during the day
and at night. It was imperative that a doctor be
present during emergency to certify that a patient had in fact died
and that resuscitation
measures had been implemented but had failed
and to give a go─ahead that the resuscitation process be
discontinued. The issuing
of a death certificate could be done twenty
four hours later as it was mainly a document that funeral undertakers
had to have in
order to arrange for either the burial or cremation of
the deceased. Sister Cook confirmed that the employee was not charged
with
failure to obtain a death certificate but with failure to ensure
that a doctor was called to physically certify that Mr Ndlovu was
dead. She insisted that it was not within the province of a nurse to
certify a person dead.
[28] Sister Cook confirmed that present on duty at the
time of the death of Mr Ndlovu were Sister Coleman, (Nurse Ncina) and
the
employee. Indeed, this was common cause. Nurse Ncina was an
agency employee who was arranged specifically to assist Mr Ndlovu
because
Mr Ndlovu was a quadriplegic and could do nothing for
himself. The assistance that Nurse Ncina was required to render to Mr
Ndlovu
included moving him as and when required and attending to his
needs. It is also common cause that Mr Ndlovu could only breathe with
the assistance of a “
tracheotomy
” which was
inserted in his throat. He, therefore, could not speak, shout or ring
the bell when he needed help. Sister Cook
testified that sister
Coleman and nurse Ncina were not employed on the terms and conditions
of employment of the appellant. The
appellant could therefore not
subject them to any disciplinary enquiry for misconduct. It could
only report their conduct to their
employer with whatever
recommendation it could make. She confirmed that a disciplinary
enquiry was however held for sister Tshabalala
for her part in the
events of that night and that she was found guilty of misconduct and
was summarily dismissed.
[29] Sister Cook testified that on the night of the
incident the employee was working overtime. Her overtime duty was
arranged with
an “
in−house agency
”. The
agency was merely used as a vehicle to facilitate payment for
services of permanent employees who worked overtime for
the
appellant. They, however, remained permanent employees of the
appellant and were at all times subject to the rules, policies
and
regulations of the appellant.
[30] Under cross-examination Sister Cook was
confronted with the fact that she did not call witnesses to testify
at the disciplinary
enquiry about the events that led to the
patient’s death. She responded that she initially conducted an
enquiry at which
all who were present including the employee gave
account of the events of that night and that she presented her report
at the disciplinary
enquiry. She testified further that Mr Clinton
Potter, who was the resuscitation officer but had not been present on
the night
of the incident, testified at the disciplinary enquiry in
an advisory capacity. She further confirmed that nurse Ncina was
merely
an enrolled nurse who was not an independent practitioner and
had to work under the direct supervision of a registered nurse.
[31] It was put to Sister Cook that there was a
possibility that the patient was already dead when the employee
arrived in the ward
and that the employee could have arrived more
than four minutes after Mr Ndlovu had died, and as such it would not
have been necessary
to conduct the CPR process. She replied that
during her investigation the employee told her that on arrival she
found lots of people
around Mr Ndlovu’s bed, and that somebody
mentioned that he had died. Sister Cook said that the employee stated
that she
could not recall who had said this.
[32] Sister Cook emphasised that the employee failed
to ask some pertinent and important questions as the senior person in
charge.
Sister Cook said that the employee should have, for example,
asked whether the doctor had been called and whether the prescribed
policies and procedures for resuscitation had been complied with.
Sister Cook stated further that it is not a nurse’s call
to say
that a patient in the position of Mr Ndlovu has died but it is a
doctor’s call. It was expected of a nurse in the
position of
the employee to ensure that the policy relating to CPR was complied
with and that a doctor was called.
[33] Sister Cook explained that the fact that Mr
Ndlovu’s pupils were fixed and dilated as alleged by the
employee was irrelevant
because nowhere in the relevant policies of
the appellant were nurses required to examine the pupils of a
patient. They were taught
to follow the basic guidelines prescribed
by the appellant. She mentioned further that it was for a doctor to
conclude that a patient
was “
biologically
” dead.
She said that a nurse’s obligation was to optimise the
patient’s chances of survival by following the
“
chain
of survival
”. She emphasised that there was a doctor on the
premises who should have been given the opportunity to have access to
the
patient and make his own decision whether Mr Ndlovu was indeed
dead. This is the arrangement that Sister Cook said that the employee
as a senior nurse on duty should have made. Sister Cook reiterated
that in this instance the issue was not when the patient died,
but
whether the employee was negligent in failing to adhere to the
appellant’s policies and procedures. This was in response
to a
number of questions and scenarios put to her under cross examination
about whether she could say when the patient died and
whether there
was a need at that stage to apply the policy and procedure prescribed
by the appellant.
The arbitration award
[34] The commissioner recorded in the arbitration
award that the employee’s contention that the dismissal was
procedurally
unfair was based on the allegation that, in the first
place, the chairperson of the enquiry was biased, secondly that the
initiator
(Sister Cook) had lunch with the chairperson on the same
day that the disciplinary hearing was conducted. The third ground for
procedural unfairness was that the employee was not granted an
opportunity to “
cross─question
” any
witnesses which were “
directly involved on the night of the
incident
.” The appellant contended that the chairperson was
not biased and that the appellant had only one cafeteria where all
personnel
went for their lunch. With regard to the third ground the
appellant contended that it was open to the employee and her
representative
to call whatever witness they wished to call to
support their case. The appellant contended further that this point
was never raised
before the chairperson of the enquiry.
[35] The commissioner found that the employee was
represented at the hearing and that they were on “
numerous
”
occasions afforded an opportunity to call witnesses and challenge any
evidence tendered at the disciplinary hearing. The
commissioner found
that the dismissal of the employee was procedurally fair.
[36] With regard to the substantive fairness of the
dismissal the commissioner stated that the question that she had to
deal with
was whether the employee was negligent. He found that the
dismissal was substantively unfair. In support of the finding that
the
dismissal was substantively unfair, he gave the following
reasons.
(a) there was no certainty as to the
procedure to certify a patient dead;
(b) the precise time of death could
not be determined with certainty;
(c) the employee admitted that she
did not follow the procedures due to the fact that she was under the
impression that the other
two nurses had already followed the
procedure;
(d) that the employee’s duty as
the night Superintendent of the hospital was to ensure that the
“
standard in the hospital was adhered to
”;
(e) in his opinion the policies
regarding CPR were the direct responsibility of nurse Ncina and
Sister Tshabalala who were directly
responsible for the care of Mr
Ndlovu and not the employee who was not directly in charge of the
patient;
(f) the policies could have been
applicable had the employee been directly in charge of Mr Ndlovu;
(g) two qualified nurses informed the
employee that Mr Ndlovu was dead already;
(h) the employee could not be
dismissed for the professional negligence of the two nurses; and
(i) only the two nurses who had been
dismissed already bore the responsibility to initiate the CPR.
Proceedings in the Labour Court
[37] In the Labour Court, the appellant relied on a
number of grounds to have the award of the commissioner reviewed and
set aside.
These were that the commissioner÷
(a) did not apply his mind to the
relevant issues ;
(b) failed to appreciate and give
effect to his powers and duties in terms of the Act;
(c) based his factual conclusion on
grounds which did not accurately or correctly reflect the evidence
before him;
(d) misconstrued the evidence and
misapplied relevant legal principles to an extent that was
unreasonable and inappropriate; and
(e) reached conclusions which were not
capable of reasonable justification.
Except for (e) these fall outside the grounds of
review provided for in sec 145 of the Act. Accordingly, a CCMA award
cannot be
reviewed on the strength of anyone of them.
[38] The Labour Court held that the commissioner had
correctly found that the employee could not be held responsible for
the failure
to apply the resuscitation process on Mr Ndlovu and that
this decision was justifiable as to the reasons given for it. The
Labour
Court concluded that the commissioner had applied his mind to
the evidence presented before him, could not find that he had
misdirected
himself nor that he committed any gross irregularity. It
accordingly dismissed the application for review with costs.
The Appeal
[39] On appeal the appellant attacks the
judgment of the Labour Court on four grounds. It contends that the
Labour Court erred in
finding that:
(a) the employee could not be held responsible for
her failure to apply resuscitation on Mr Ndlovu;
(b) the decision of the commissioner was rationally
related and justifiable in the light of the evidence before the
commiossioner;
(c) the commissioner applied his mind to the
evidence presented and, therefore, did not misdirect himself;
(d) the respondents are entitled to an order for
costs.
[40] Before us counsel for the appellant submitted
that a reasonable decision maker could never have arrived at the
decision arrived
at by the commissioner and that this Court should
find that the dismissal of the employee was substantively fair.
Counsel for the
respondents submitted that the decision by the
commissioner is not a decision that a reasonable decision maker could
not have reached.
He contended that the policy of the appellant on
CPR could not mean that each and every nurse arriving at the scene
must apply
CPR. It was submitted that the circumstances of the
situation would dictate whether there was a need to comply with the
policy.
[41] Both parties relied on the decision of the
Constitutional Court in
Sidumo and Another v Rustenberg Platinum
Mines and Others
[2007] ZACC 22
;
2008 (2) BCLR 158
(CC): (2007) 28 ILJ 24O5 (CC)
for their submissions. In
Fidelity Cash Management Service v CCMA
& Others (2008) 29 ILJ 964 (LAC),
[2008] 3 BLLR 197
(LAC)
Zondo JP, who wrote the judgment for the Court, held as follows at
paragraph [102] with regard to unreasonableness as a ground
of review
for CCMA arbitration awards:
“
What is the difference between the approach
enunciated in Carephone and that enunciated in Sidumo with regard to
the grounds of
review set out in sec 145 of the Act? The difference
seems to me to be two-fold. Firstly, Carephone sought to construe sec
145
so as to bring it in line with a constitutional imperative at the
time which was to the effect that an administrative action had
to be
justifiable in relation to the reasons given for it whereas Sidumo
seeks to construe sec 145 so as to meet the current constitutional
requirement that an administrative action must be lawful, reasonable
and procedurally fair. It seems to me that, even if there
may have
been a debate under Carephone and prior to Sidumo on whether a
commissioner’s decision for which he or she has given
bad
reasons could be said to be justifiable if there were other reasons
based on the record before him or her which he or she did
not
articulate but which could sustain the decision which he or she made,
there can be no doubt now under Sidumo that the reasonableness
or
otherwise of a commissioner’s decision does not depend –
at least not solely - upon the reasons that the commissioner
gives
for the decision. In many cases the reasons which the commissioner
gives for his decision, finding or award will play a role
in the
subsequent assessment of whether or not such decision or finding is
one that a reasonable decision-maker could or could
not reach.
However, other reasons upon which the commissioner did not rely to
support his or her decision or finding but which
can render the
decision reasonable or unreasonable can be taken into account. This
would clearly be the case where the commissioner
gives reasons A, B
and C in his or her award but, when one looks at the evidence and
other material that was legitimately before
him or her, one finds
that there were reasons D, E and F upon which he did not rely but
could have relied which are enough to sustain
the decision
.”
[42] It seems clear to me that the finding by the
commissioner that the dismissal of the employee was substantively
unfair was based
on his opinion that the application of CPR policy
was the direct responsibility of Nurse Ncina and Sister Tshabalala
who were directly
responsible for the care of Mr Ndlovu. The
commissioner exonerated the employee solely on the basis that she was
not “
directly in charge of the patient
.” In this
regard reference can be made to the finding by the commissioner that
“
two nurses who [were] directly in charge of the patient
that died [were] dismissed , I find it difficult to understand or
[accept]
that the [employee] had to be dismissed for the professional
negligence of the two nurses as well.
” He further held that
“
in my opinion in this case [the responsibility to institute
CPR] had to stop at the two nurses who have been dismissed and
further
that ‘if the [employee] was
directly in
charge of the patient
, the policies would be applicable.
”
(My emphasis)
[43] From the evidence it is not in dispute that all the
parties had accepted that the appellant’s resuscitation
policies
were applicable and that they were reasonable. It was also
accepted that the employee was aware of the policies and that she was
trained in the application of such policies. The employee was the
most senior person at the time. The content of the policies as
well
as the procedures to be followed were not in dispute. It was also not
in dispute that the resuscitation procedures had to
be implemented
within two to four minutes of diagnosis of respiratory or cardiac
arrest and be continued with until those applying
the resuscitation
procedure were too tired to carry on, or the patient was certified
dead by the doctor or was taken over by more
qualified personnel.
[44] It must also be pointed out that neither in the
disciplinary hearing nor at the arbitration did the employee or the
union
suggest that the employee was not directly in charge of Mr
Ndlovu and that, for that reason, she was not obliged to attempt the
resuscitation procedure on him. The employee’s explanation and
reasons at the disciplinary hearing for not attempting the
resuscitation procedure were that she did not think of resuscitation
and accepted that she was wrong for not doing so. She explained
further that on previous occasions she had been called to the wards
in emergency situations and had applied the resuscitation procedure
on many occassions. She also acknowledged that she had always
“checked
” patients on her own when told that a
patient was already dead. The reason that she gave at the arbitration
for not applying
the resuscitation procedure on Mr Ndlovu was that in
her opinion it was clear that Mr Ndlovu had been dead for some time
prior
to her arrival in the ward. She did not say that the reason why
she did not apply the resuscitation procedure was because she was
not
directly in charge of Mr Ndlovu as the commissioner found. The
question whether she was “directly in charge” of
Mr
Ndlovu was therefore never an issue to be determined by the
commissioner.
[45] In determining whether the commissioner’s
decision was reasonable or not, it is necessary to emphasise the
following
facts or factors in this matter:
(a) the employee was in charge of the
hospital as the night superintendent;
(b) the employee had the overall
responsibility of ensuring that the policy relating to CPR was
complied with;
(c) Mr Ndlovu was a patient who had made
good recovery and was for that reason removed from the ICU. He was
not categorised as a
patient whose death was expected;
(d) the procedure relating to CPR was
supposed to be conducted on Mr Ndlovu but was not;
(e) the employee on arrival failed to
establish from Sister Tshabalala whether the CPR procedures had been
applied on Mr Ndlovu,
and if indeed applied what the outcome thereof
was, and if not applied what the reason therefore was;
(f) the employee relied on assumptions,
without establishing the actual factual position from Sister
Tshabalala;
(g) the employee’s failure to ask the
pertinent questions relating to the application of the CPR policy may
well have deprived
Mr Ndlovu of an opportunity for the application
of the resuscitation procedure which may well have saved his life,
(h) the employee failed to ensure that a
doctor was called in order to certify that Mr Ndlovu was dead.
There is no indication that the commissioner
considered the above facts. In my view, had the commissioner
considered the above he
may well have come to the conclusion that the
employee was negligent in that she failed to initiate the
resuscitation procedure
and apply the hospital policy on medical
emergencies on Mr Ndlovu. The employee was also negligent in that she
failed to facilitate
the certification of Mr Ndlovu’s condition
by a doctor at the required time. Failure by the commissioner to
consider these
facts made her to come to a conclusion that the
employee was not negligent and that it was only sister Tshabalala and
Nurse Ncina
who were negligent.
[46] The argument that the employee could have arrived
after the period of four minutes had expired is speculative. I say so
because
the employee did not know when Mr Ndlovu suffer the attack.
All that she was told by Sister Coleman according to her, was that Mr
Ndlovu had developed a high hick- up. Armed with this knowledge one
would have expected her to make more enquiries about Mr Ndlovu’s
condition when someone remarked that he was dead. The enquiries would
have included asking about the nature and duration of the
hick-up and
what was done to assist him.
[47] With regard to the explanation that Mr Ndlovu was
already dead because his pupils were enlarged and dilated, Mr Potter
testified
at the disciplinary enquiry that the pupil response is
only one test that can be done on the “
brain stem function
and all the others have not been tested yet
.” One can
therefore not conclude that the patient is dead merely on the basis
of pupil dilation. He mentioned that it was
still necessary for the
CPR to be applied and that the doctor is the only person that can
certify a patient biologically dead.
This evidence, tendered shortly
after the incident, was not disputed by either the employee or her
representative who were both
given an opportunity to cross-examine Mr
Potter.
[48] It was also important for the commissioner to be
conscious of the fact that the policies in question were meant to
apply
in emergency situations to save lives. It
inter alia
, is
for this reason,
that
the employee should have been
more meticulous and ensured that the policy was implemented. It was
not for her to make assumptions
that other employees could have
applied the resuscitation procedure without establishing the true
state of affairs. Failure to
comply with the resuscitation policy is
indiputably a serious misconduct because the plain purpose of the
policy is to give patients
optimum chance of survival and to save
lives where possible.
[49] In my view, the Labour Court should have found that
the decision reached by the commissioner is a decision that a
reasonable
decision maker could not have reached, given the issues in
dispute, the evidence presented as well as the admissions made by the
employee. The Labour Court should have granted the application for
review and ordered that the dismissal of the employee was also
substantively fair. The order of the Labour Court on costs is, in my
view, in accordance with the requirements of the law and fairness.
[50] In the result I make the following orders:
(1) The application for condonation is
granted;
(2) The appeal is upheld and the order
of the Court a quo is set aside;
(3) The following order is substituted
for the order of the Court a quo:
“
(a) that part of the
commissioner’s arbitration award which was to the effect that
the employee’s dismissal was substantively
unfair is hereby
reviewed and set aside.
(b) The commissioner’s
award for compensation in favour of the employee is hereby reviewed
and set aside.
(c) The commissioner’s
award that the employee’s dismissal was substantively unfair is
hereby replaced with the following
order;
“
(i) The employee’s
dismissal was substantively fair and her claim for unfair dismissal
is hereby dismissed.”
(ii) The employee’s
dismissal is found to have been both substantively and procedurally
fair.”
(d) There is no order as to cost
either in this Court or the Court a quo
_____________
Tlaletsi AJA
I agree
_______________
Zondo JP
I agree
_______________
Khampepe ADJP
For the Appellant: Mr C Orr
Instructed by: Webber Wentzel
Bowens attorneys
For the respondent: Mr Van der
Westhuisen
Instructed by: Macrobert
Incorporated attorneys
Date of the judgment: 25
February 2009