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[2012] ZALAC 2
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Afrox Healthcare Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA37/09) [2012] ZALAC 2; [2012] 7 BLLR 649 (LAC); (2012) 33 ILJ 1381 (LAC) (28 February 2012)
REPUBLIC
OF SOUTH AFRICA
Reportable
THE LABOUR APPEAL
COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case no: JA37/09
In the matter between:
AFROX HEALTHCARE
LIMITED
….........................................................................
Appellant
and
THE COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
…...........................................................
First
Respondent
HLONGWANE NO
…..............................................................................
Second
Respondent
NQOPHISO A
…..........................................................................................
Third
Respondent
Date of Hearing: 13
May 2011
Date of Judgment: 28
February 2012
Summary: Labour Law -
Review of CCMA award – reasonable decision maker standard –
Constitutional standard of reasonableness
explored – rational
objective basis – focal issue remains the material placed
before decision maker and decision arrived
at - Dismissal – ICU
ward supervisor negligent – fair to dismiss.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
MLAMBO JP
[1] On 20 May 2002, a
patient underwent surgery for subdural bleeding at the Glynwood
Hospital, one of the appellant’s hospitals
situated in Benoni,
in the East of Johannesburg. The operating neurologist was satisfied
that the operation had gone well and expected
the patient to make a
recovery to the extent that she would be served breakfast in the next
morning. After the surgery, the patient
was admitted in the hospital
Intensive Care Unit (ICU) ward for the necessary specialised care and
observation during the night.
[2] The third respondent
(Nqophiso) was the night shift nursing supervisor of the ICU ward
that night and he entrusted the individual
care of the patient to
nursing sister Lehong (Lehong). The patient however succumbed and
died the following morning sometime after
Nqophiso and Lehong had
completed their shift. As is standard procedure when such unfortunate
incidents occur, the hospital management
instituted an investigation
regarding the death of the patient. At the conclusion of that probe,
both Nqophiso and Lehong
were charged with negligence and subjected to disciplinary processes.
The charges against Nqophiso were
that he had failed to supervise
untrained staff and that he had failed to act in a responsible manner
when a suspicion of deterioration
in the condition of the patient was
reported.
[3] In the ensuing
disciplinary enquiry, Nqophiso was found guilty and consequently
dismissed. Lehong’s fate was similar.
Nqophiso,
however,
contested the fairness of
his dismissal and lodged an appeal which was unsuccessful. He then
referred a dispute to the first respondent,
the Commission for
Conciliation Mediation and Arbitration (CCMA) for resolution through
conciliation and arbitration. As it turned
out, conciliation failed
and arbitration ensued presided over by the Second Respondent (the
commissioner).
[4] At the conclusion of
the arbitration proceedings, the commissioner concluded that the
appellant, by not calling Lehong to testify,
had failed to
substantiate its case of lack of supervision and unreasonable conduct
on the part of Nqophiso leading to the death
of the patient. The
Commissioner further found that the appellant had not shown that it
was Nqophiso’s negligence that caused
the patient’s
demise. On this basis, the commissioner concluded that Nqophiso’s
dismissal was unfair. He issued an
award in terms of which Nqophiso
was reinstated in the appellant’s employ coupled with
compensation equivalent to 12 month’s
salary. However, the
appellant instituted proceedings in the Labour Court seeking to
review and set aside the award. The essential
ground of the review
was that there was no rational connection between the evidence placed
before the commissioner and his conclusion.
The appellant further
asserted that it was irrational for the commissioner to have expected
the appellant to show that Nqophiso’s
negligence had caused the
patient’s death. The reviewing Judge in the Labour Court, Leeuw
AJ,
1
(as she was then) was
however not persuaded and dismissed the application with costs. She
also refused to grant the appellant leave
to appeal which leave was
subsequently granted by this court.
[5] The issue before us,
as has become customary in such matters, is the reasonableness of the
commissioner’s award in which
it was found that the appellant
had led no evidence to substantiate the charges it proffered against
Nqophiso, leading to the conclusion
that no negligence on his part
had been shown. This is the main and probably only reason that the
appellant’s case floundered
in the CCMA and in the Labour
Court. That reason is rooted in the commissioner’s view that
the appellant had not called Lehong
to support its assertion that
Nqophiso had failed to supervise her and for her to defend her
entries in the patient’s chart
regarding the deterioration of
the patient’s condition. It is correct that the appellant
relied mainly on documentary evidence
during the arbitration
proceedings which comprised witness statements including one from
Lehong as well as its standard operating
procedures.
[6] This being an appeal
arising from a failed review of an arbitration award of a CCMA
commissioner, our task is to consider the
award in accordance with
the reasonable decision maker standard propounded by the
Constitutional Court.
2
It is primarily to that
aspect that our focus in this appeal should be. Firstly,
it is necessary to sketch
in some detail the evidence that was before the commissioner
regarding the events of the night in question.
This evidence is
largely common cause. I will point out the areas of disagreement
where these are manifest.
[7] Nqophiso is a well
qualified and experienced senior member of the nursing staff, who is
held in high esteem by his peers, and
members of the hospital
management. He was therefore well placed and adequately competent to
supervise the staff that was assigned
to work in the ICU ward on the
night in question. It was in any event Nqophiso’s own
initiative to alter the allocation made
regarding the placement of
the night shift nursing staff and to allocate Lehong to the patient,
although he was aware that she
was the least experienced. The
motivation being that he desired to supervise her closely. At around
midnight, Nqophiso said he
became aware that Lehong had allegedly
made incorrect entries on the patient's chart regarding her condition
from 19h00 to 23h00.
According to the entries made by Lehong in that
period, the patient had showed initial signs of improvement which had
then deteriorated.
Nqophiso disputed these entries stating that they
were contrary to his own observations of the patient whom, he stated,
had remained
stable throughout the night, showing no signs of either
recovery or deterioration.
[8] As observed earlier,
the operating neurologist had expected the patient to have recovered
sufficiently overnight to be in a
position to be served breakfast in
the morning. Nqophiso was also aware of the doctor’s
expectation though he stated that
he was not aware of the period
during which such recovery was expected. He further denied that he
was aware of the fact that the
patient was expected to have recovered
sufficiently to be served breakfast in the morning. Be that as it
may, Nqophiso did not
make a separate note recording his own
observations of the patient’s condition contrasting the entries
made on the patient's
chart, by Lehong, which, according to the
appellant’s standard procedures, he could not alter.
Furthermore, Nqophiso did
not discuss the patient’s chart
entries made by Lehong as well as his own observations, with the duty
doctor(s), nor with
the day shift nursing personnel when he handed
the ward over to them. Furthermore, at no stage did Nqophiso deem it
fit to contact
the patient’s neurologist during the night to
report the latter’s condition. All these facts were before the
Commissioner.
[9] The appellant's
counsel submitted that the Labour Court erred when it upheld the
commissioner’s award as the latter had
ignored critical
evidence placed before him which established in no uncertain terms
that Nqophiso had acted negligently on the
night the patient was
under his care in the ICU ward. The failure to consider such critical
evidence, it was argued, rendered the
resultant award deficient and
therefore one that a reasonable decision maker could not have made.
Nqophiso’s counsel on the
other hand, cautioned us, correctly
in my view, that in considering the appellant’s argument, we
should not lose sight of
the charges that were leveled at his client.
[10] The first charge was
that he had failed to supervise untrained staff. In this regard, we
know that Lehong was the least experienced
in ICU work that night.
She made entries of her observations of the patient’s condition
every hour from when she came on
duty at 19h00. We also know that
Nqophiso said he became aware after 23h00 that Lehong was making her
entries incorrectly and that
he had to show her how to make correct
entries. He further stated that her entries did not tally with his
own observations of the
patient’s condition. The documentary
evidence placed before the commissioner in relation to the general
practice and procedure
in the ICU ward was that, as the night shift
supervisor, Nqophiso was required to keep close supervision of all
the nurses on that
shift and that all observations of patients in the
ICU ward required meticulous note keeping. Such evidence, though be
it documentary,
also showed that, as the shift supervisor, Nqophiso
was required to ensure that all documentation generated regarding the
condition
of each patient correctly reflected such patient's
condition as well as the tests administered. It is apparent from this
evidence
that Nqophiso had a critical supervisory responsibility
towards Lehong who he knew to be untrained and inexperienced in ICU
work.
[11] This evidence, which
as I have stated, was placed before the commissioner and which
Nqophiso did not dispute in so far as it
related to his
responsibilities as night shift ward supervisor, appears to have
received no attention from the commissioner i.e
on a plain reading of
the award. Clearly, had Nqophiso carried out proper supervision of
Lehong, he would have brought to a halt
her alleged incorrect chart
entries early in the evening. The fact that he took no corrective
action until towards midnight is
testimony of his negligence in
keeping Lehong under proper supervision. I must also point out that
when challenged during the arbitration
proceedings, to show in what
respects Lehong had, as he had alleged, administered certain tests on
the patient incorrectly, Nqophiso
was unable to back up his
assertion.
[12] The second part of
the charge was that Nqophiso had failed to act in a responsible
manner when a suspicion of deterioration
in the condition of the
patient was reported. Whilst it is correct that Nqophiso disputed the
entries made by Lehong on the patient’s
chart, i.e that the
patient initially showed signs of recovery followed by deterioration,
his only explanation of failing to make
a separate note regarding his
own observations was that he had never done this before in his life.
However, if one considers the
fact that patients’ charts are
important sources of information to doctors and nursing personnel, he
cannot escape the consequences
of his failure to separately record
his own observations contradicting the entries made by Lehong.
Admittedly, and if one goes
by the fact that Nqophiso stated that he
could not alter Lehong's entries, it appears to have been grossly
negligent of him to
simply hand over the ICU ward to the incoming day
shift without making such a note or at the least to provide them with
a verbal
report of what he had observed as opposed to the chart
entries. This factual matrix is missing from the commissioner’s
analysis.
[13] Further it is clear
in the record before us that Nqophiso was also aware that the patient
was expected to make a good recovery.
In this regard, Nqophiso stated
that he became concerned during the night when, according to his own
observations, he noticed no
change in the patient's condition. Due to
this concern, he went to check the patient's records as well as the
ambulance records
to determine if any drugs were given to the patient
to explain her unchanging condition. He could find no answer from the
records
and despite his stated concerns, he did not contact the
patient's neurologist nor consult the duty doctors. Properly
considered,
this evidence demonstrates that Nqophiso’s
assertion that the patient remained stable hence he found no reason
to do anything
is incomprehensible but more importantly testifies to
his neglect.
[14] In my view, his
failure to contact the patient’s neurologist was under the
circumstances clearly negligent especially
taking into account the
fact that the doctor expected that patient to recover fully, a fact
Nqophiso was well aware of. It may
be so that Nqophiso may have
regarded the patient's doctor as a difficult person to deal with,
whom he described as a person requiring
handling “with
forceps”. This however had to take backstage to Nqophiso’s
responsibilities as ward supervisor
as well as the life at stake.
[15] The commissioner’s
reasoning in finding for Nqophiso is encapsulated in the following
passage in the award:
‘
The company argued that
chart or report
s
showed the following about the patient:
The dilation of pupils
The confused verbal response of the
patient or no response at all
The absence of any mortal response
In reply to this, the applicant
maintained during the arbitration that when he checked the patient,
she was clinically fine. Whether
the applicant is correct or not it
is a matter of evidence. The respondent has not led any evidence in
this regard, cannot state
if the applicant was in a position to pick
up any condition that could have led to death. This is moreover if it
cannot be established
by the respondent if both the applicant and
sister Lehong discussed the condition of the patient and made a
decision of their observations.
I am alive to the fact that I am
not substituting the thinking of the respondent, I must establish if
the applicant has failed to
carry out his duties. The correct entry
on the patient’s progress report was entered late in the
evening of the day in question.
The patient was however at all times.
If a nurse who is required to check such a patient believes that the
patient’s life
is in danger, I suppose it then becomes an
academic exercise as to what would another person do under the
circumstances?
The importance of Lehong would be
to show if the applicant had established that the patient’s
condition was such that it was
envisaged that the patient was going
to die and that something could have been done to save her life. The
respondent bore the onus
of proving such and has failed to do so.
Having applied my mind I find that the dismissal of the applicant was
substantively unfair.’
[16] This passage
represents the only portion in the whole award providing one with a
sense of the analysis conducted by the commissioner
of the evidence
placed before him and which led him to conclude that Nqophiso’s
dismissal was unfair. It is clear from this
passage that the
commissioner’s conclusion was based largely on his view that in
failing to call Lehong to testify the appellant
failed to show
negligence on Nqophiso’s part leading to the patient’s
death. Considering this reasoning,
the
conclusion is inescapable, in my view, on a holistic view of the
evidence, that the commissioner, in arriving at his decision,
clearly
did not take proper account of the material placed before him and
that he failed to conduct a proper appraisal of some
critical
portions of that material. It is correct that CCMA arbitration awards
should ideally be crisp and to the point. In
County
Fair Foods (Pty) Ltd v CCMA and Others,
3
Conradie JA remarked as
follows regarding the approach to CCMA awards:
‘
Awards are expected to be
brief. It seems to me to be destructive of the whole concept of CCMA
arbitrations over individual dismissals
that a commissioner should be
held not to have applied his mind to a particular fact because it is
not explicitly dealt with in
his award. In casu, the commissioner
approached the arbitration conscientiously.’
[17] This statement
represents the approach that courts should adopt in general towards
CCMA and Bargaining Council awards brought
under review. This does
not, however, mean that in keeping with this approach evidence that
has a bearing on the ultimate conclusion
of the matter should be
ignored or left out of reckoning. As I point out above, the
commissioner, in this matter omitted to consider
evidence placed at
his disposal showing that Nqophiso had been remiss in his supervisory
responsibility over Lehong; in not making
a separate note of his
observations; nor appraising the day shift of this as well as in
failing to discuss the patient’s
condition with duty doctors
and crucially with her doctor. These are all matters implicit in the
appellant’s standard operating
procedures for its nursing
personnel which were before the commissioner. On this basis the award
is irrational and clearly not
one that a reasonable decision maker
would have arrived at. See
Maepe
v CCMA and Another,
4
where Zondo JP stated:
‘
Although a commissioner is
required to give brief reasons for his or her award in a dismissal
dispute, he or she can be expected
to include in his or her brief
reasons those matters or factors which he or she took into account
which are of great significance
to or which are critical to one or
other of the issues he or she is called upon to decide. While it is
reasonable to expect a commissioner
to leave out of his reasons for
the award matters or factors that are of marginal significance or
relevance to the issues at hand,
his or her omission in his or her
reasons of a matter of great significance or relevance to one or more
of such issues can give
rise to an inference that he or she did take
such matter of factor into account.’
[18] It is important to
state that my view in this matter is not because I simply hold a
different view to that of the commissioner.
That is impermissible.
See
Fidelity
Cash Management Service v CCMA and Others
5
where this court per
Zondo JP stated:
‘
It will often happen that,
in assessing the reasonableness or otherwise of an arbirtration award
or other decision of a CCMA commissioner,
the court feels that it
would have arrived at a different decision or finding to that reached
by the commissioner. When that happens,
the court will need to remind
itself that the task of determining the fairness or otherwise of such
a dismissal is in terms of
the Act primarily given to the
commissioner and that the system would never work if the court would
interfere with every decision
or arbitration award of the CCMA simply
because it, that is the court, would have dealt with the matter
differently. Obviously,
this does not, in any way, mean that
decisions or arbitration awards of the CCMA are shielded from
scrutiny of the Labour Court
on review.’
[19]
What
we have in the case at hand is a CCMA commissioner not taking into
account all the evidence before him leading him to arrive
at an
unreasonable award. Compare
National
Union of Mine Workers v Samancor Ltd,
6
where the SCA reversed a
judgment of this court which had itself reversed a Labour Court
judgment upholding a bargaining council
award. In that matter,
the issue was not whether
the commissioner had ignored or failed to consider evidence before
him but how he treated it in making
an award that the dismissal of an
employee was unfair substantively and procedurally. The Labour Court
had found that the award
was reasonable and not susceptible to
interference on review whilst this court disagreed. This court found
that,
on
the basis of the evidence before the commissioner,
the
latter should have found that the dismissal of the employee was
substantively fair. Remarkably,
however,
this court at no stage
made a positive finding that the award was not one that a reasonable
decision maker would have made. The
SCA, in reversing that decision,
essentially found that this court had incorrectly approached the
matter as an appeal and not as
a review.
[20] The SCA, per Nugent
JA, stated:
‘
Whether I would have reached
the same conclusion as that reached by Mr Stemmett [the commissioner]
is not germane and I express
no view on the matter. It is sufficient
to say that on the material before him I have no doubt that his
decision was not so unreasonable
that it could not have been reached
by a reasonable decision maker’.
7
This is no different to
what this court said in the
Fidelity
decision as I point out
above. The correct approach in matters such as this where the focus
of the attack on the award is not process
related but directed at the
merits, especially in considering whether the mischief set out in
Section 145 (2) has been shown, is
to consider whether the
commissioner brought his mind to bear on the material before him
before making his award. This is what
this court said in
Carephone
(Pty) Ltd v Marcus NO
and Others
8
that:
‘
[I]s there a rational
objective basis justifying the connection made by the administrative
decision maker between the material properly
available to him and the
conclusion he or she eventually arrived at?’
The Constitutional Court
in
Sidumo
,
clearly mindful of the
Carephone
approach stated that:
‘
[T]he better approach is
that Section 145 [of the LRA] is now suffused by the constitutional
standard of reasonableness…:
Is the decision reached by the
commissioner one that a reasonable decision maker could not reach?’
9
In
Samancor,
10
the SCA remarked that in
formulating what has come to be known as the reasonableness standard,
the Constitutional Court in
Sidumo
“
adopted what
was held in Carephone that an award may also be set aside if it is
one that a reasonable decision maker could not reach”.
[21]
The
fact of the matter is that the reasonable decision maker yardstick
crafted in
Sidumo
,
viewed in proper context, is none other than that in the absence of a
“rational objective basis” between the decision
arrived
at and the material placed before the decision maker, the relevant
decision is clearly not one which a reasonable decision
maker would
have arrived at.
In
Minister
of Health and Another v New Clicks South Africa
(
Pty
)
Ltd
and Others
(
Treatment
Action Campaign and Another as amici curiae
)
11
the
approach was propounded as follows:
‘
There is obviously an
overlap between the ground of review based on failure to take into
consideration a relevant factor and one
based on the unreasonableness
of the decision. A consideration of the factors that a decision maker
is bound to take into account
is essential to a reasonable decision.
If a decision maker fails to take into account a factor that he or
she is bound to take
into consideration, the resulting decision can
hardly be said to be that of a reasonable decision maker.’
See
also Ngcobo CJ’s remarks in the concurring judgment in
Sidumo
that:
‘
It
follows therefore that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot in principle
be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing. . . the commissioner’s action
prevents
the aggrieved party from having its case fully and fairly determined.
This constitutes a gross irregularity in the conduct
of the
arbitration proceedings as contemplated in section 145(2)(a)(ii) of
the LRA. And the ensuing award falls to be set aside
not because the
result is wrong but because the commissioner has committed a gross
irregularity in the conduct of the arbitration
proceedings.’
12
Viewed on this basis,
clearly the award made by the commissioner
in
casu
is
in essence not one that a reasonable decision maker could have made.
[22]
I
now turn to the question whether in the circumstances of this case
dismissal was too harsh as a sanction, as argued by Nqophiso’s
counsel. This is a necessary enquiry as dismissal is the ultimate
sanction resulting as it does in the severance of the employment
relationship. For this momentous reason, it is a sanction that should
not be lightly taken and should be justified by the facts
in each
case.
13
[23]
In
the matter at hand, counsel for the appellant has argued that every
patient admitted in an ICU ward should have the confidence
that every
effort would be
utilised
to
maximise
that patient’s
chance of survival and recovery. Considering Nqophiso’s
experience and the respect with which he was
regarded, his negligent
lapses are clearly inimical to the well being of patients under his
care. Such lapses are intolerable in
the environment in question and
in the circumstances of this case deserve no sympathy. This was a
life and death situation and
Nqophiso dismally failed the test
despite his experience and competence. Taking into account the
appellants’ business and
the public’s expectation of a
zero tolerance to the type of negligence shown here, which, in my
view, impacts negatively
on patient’s lives, it was eminently
fair to dismiss Nqophiso. I have found value in the following remarks
by Conradie JA
in
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration
and
Others
:
14
‘
Dismissal is not an
expression of moral outrage; much less is it an act of vengeance. It
is, or should be, a sensible operational
response to risk management
in the particular enterprise. That is why supermarket shelf packers
who steal small items are routinely
dismissed. Their dismissal has
little to do with society’s moral opprobrium of a minor theft;
it has everything to do with
the operational requirements of the
employer’s enterprise.’
15
[24] Clearly the award
in
casu
to the effect that Nqophiso’s dismissal was unfair is
not one which a reasonable decision maker would have arrived at in
line with the test laid down by the Constitutional Court. With regard
to costs, I do not think this is a case where the costs should
follow
the result.
[25] In the circumstances
the following order is granted:
The order of the Labour
Court is set aside and in its stead the following order is
substituted:
“
1. The award of
the commissioner is reviewed and set aside.
2. The dismissal of the
employee party (Mr. NQOPHISO) was fair.
3. There is no order as
to costs.”
B. There is no order as
to costs
_______________________
MLAMBO JP
Waglay DJP and Mocumie
AJA concur in the judgment of Mlambo JP.
Appearances:
For the Appellant:
Advocate C Orr
Instructed by: Webber
Wentzel, Johannesburg
For the Third Respondent:
Advocate A Roelofze
Instructed by: Ningiza
Horner Incorporated, Johannesburg
1
Leeuw
was at the time a Judge of the North West High Court but was acting
in the Labour Court. She was subsequently appointed
to the Labour
Appeal Court and as Judge President of the North West High Court.
2
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC).
3
(1999)
20 ILJ 1701 ILJ (LAC), [1999] 11 BLLR (LAC) at para 47.
4
[2008] ZALAC 2
;
(2008)
8 BLLR 723
LAC at para 8.
5
[2008]
3 BLLR 197
(LAC) at para 98.
6
(2011)
32 ILJ 1618 (SCA);
[2011] 11 BLLR 1041
(SCA).
7
Id
at para 13.
8
1999
(3) SA 304
(LAC) at para 37
9
Id
para 110
10
Above
n 8 at para 5
11
2006
(1) BCLR 1
(CC)
at
para 511.
12
Above
n 2 at para 268.
13
Chemical
Workers Industrial Union and Others v Algorax (Pty) Ltd
. (2003)
24 ILJ 1917 at para 70.
14
(2000)
21 ILJ 1051 (LAC) at para.22.
15
See
also
Shoprite Checkers (Pty) Ltd v CCMA and Others
[2008] ZALAC 9
;
[2008] 9
BLLR 838
(LAC) at para 21
Mutual Construction Co Tvl (Pty) Ltd v
Ntombela NO and Others
(2010) 31 ILJ 901 (LAC) at para 25;
Miyambo v CCMA
[2010] 10 BLLR 1017
(LAC) at para 13 ;
Transnet
Freight Rail v Transnet Bargaining Council and Others
case no:
(C644/2009) [2011] ZALCJHB 15 (4 March 2011), (unreported yet) at
para 36
; and City of Cape Town v SALGBC
[2011] 5 BLLR 504
(LC) at para 2
2.