About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2017
>>
[2017] ZALAC 25
|

|

South African Medical Association obo Pietz v Department of Health - Gauteng and Others (JA16/16) [2017] ZALAC 25; [2017] 9 BLLR 923 (LAC); (2017) 38 ILJ 2297 (LAC) (4 May 2017)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 16/16
In the matter between:
SOUTH AFRICAN MEDICAL
ASSOCIATION obo
GRZEGORC LUDWICK
PIETZ

Appellant
and
DEPARTMENT OF HEALTH -
GAUTENG

First Respondent
ADVOCATE RONNIE BRACKS
N.O

Second Respondent
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
BARGAINING
COUNCIL

Third Respondent
Heard:
16 November 2016
Delivered:
04 May 2017
Summary: The
Bargaining Council – Finding that the dismissal of the
appellant employee was substantively fair but procedurally
unfair –
refusing to exercise its discretion to award compensation for
procedural unfairness. The Labour Court – dismissing
the
application to review and setting aside the Bargaining Council
arbitration award. The Labour Appeal Court - confirming that
the
dismissal was substantively fair but procedurally unfair- Finding
that t
he egregious disregard of the appellant
employee’s right to a fair pre-dismissal hearing justified
redress on just and equitable
basis- The order of the Court
a
quo
set aside - the award of the
Bargaining Council amended by an addition of an award of
compensation.
Appeal upheld in part
and the order of the Court
a quo
substituted.
Coram: Landman JA,
Molemela JA and Phatshoane AJA
JUDGMENT
Phatshoane AJA
[1]
This is an appeal by the South African Medical Association (SAMA) on
behalf of Dr Grzegorz Ludwick Pietz (Dr Pietz), the appellant,

against the whole of the judgment and order of the Labour Court (per
Rhoodie AJ) dated 29 July 2015, dismissing with costs Dr Pietz’s

application in terms of s145 of the Labour Relations Act, 66 of 1995
(the LRA), to review and set aside the arbitration award dated
15
August 2012 issued under Case No: PSHS642-09/10 by commissioner
Ronnie Bracks (the commissioner),
[1]
the second respondent, under the auspices of the Public Health and
Social Development Sectoral Bargaining Council (PHSDSBC), the
third
respondent. The appeal is with the leave of the Court
a
quo
.
Background:
[2]
Dr Pietz, a medical doctor from Poland and admitted to practice in
South Africa as a gynaecologist and obstetrician, was employed
by
South Rand Hospital, a level 1 hospital
[2]
which falls under the administration of the Department of Health,
Gauteng (the department), the first respondent, for the period
1991
until 1998. He was re-employed by the same hospital from 2007 until
his dismissal on 01 December 2009. He had been in the
medical
practice for a period of 39 years.
[3] It is common cause
that on 01 December 2009, Dr Pietz was summarily dismissed without a
disciplinary hearing by the department
on the strength of the
allegation that he was guilty of insolence, insubordination and gross
negligence. The letter of termination
of his services reads:
‘
It has come
to the attention of the department that you were involved in an act
of misconduct (Gross negligence, insolent behaviour
and
insubordination) leading to the death of an unborn child.
The department has therefore decided
to terminate your services with immediate effect.’
[4]
The factual milieu precipitating Dr Pietz’s dismissal is as
follows. On 25 November 2009 at 23h05 the late Ms Philile
Hlatshwayo,
41 years of age and approximately 27 weeks pregnant, was admitted to
the admissions ward by Sister Merriam Nape, a
midwife with 19.5 years
of experience, complaining of lower abdominal pains. Sister Nape
placed her on the non-stress test (NST)
[3]
machine which indicated that the foetal heart rate was 128 beats per
minute. The patient’s cervix was about 5cm dilated.
The
evidence suggested that a foetus is premature at 28 weeks gestation
period.
[4]
[5] Sister Nape examined
the patient’s birth canal. She felt a soft mass which in her
view was an indication that the unborn
child was descending with its
buttocks (in breech presentation). To the right of the soft mound
ahead of the presenting parts was
a prolapsed (protruding) umbilical
cord. Sister Nape summoned her colleague, sister Thembekile Jennifer
Ncube, a professional nurse
and a clinical specialist, who confirmed
her clinical findings. The umbilical cord was pulsating.
[6] Sister Ncube
instructed sister Nape to call Dr Pietz, the doctor on call during
that night, to inform him of the prolapsed cord.
Only a doctor is
permitted to deliver a baby in instances where the patient presented
with a prolapsed cord or the foetus was in
a breech position because
this was life-threatening and an obstetrical emergency. In order to
prevent the presenting parts from
resting on the umbilical cord
thereby cutting off the blood supply/oxygen to the unborn child,
which could result in death by asphyxiation,
sister Ncube pressed her
fingers inside the patient’s birth canal. She was assisted by
two other nurses, sisters Mbonani
and Mbombi. They placed the patient
on a drip and a catheter to drain the urine in anticipation of the
caesarean procedure they
believed would follow.
[7] Sister Nape says she
called Dr Pietz at approximately 23h10 and explained to him “
that
the patient is presenting with a breech and a cord prolapse
”
and that she was about 27 weeks pregnant. He replied that he would
attend to the patient when she “
is fully dilated to
deliver
”. Sister Nape informed sister Ncube of the
astounding impertinent response she received from Dr Pietz. Sister
Ncube intimated
that she enquired from sister Nape “
did you
tell him that it is a cord prolapse
”. Sister Nape replied
affirmatively. Sister Ncube requested one of the sisters present to
continue pushing up the presenting
parts whilst she called Dr Ilunga
Kabale, the medical superintendent, requesting his intervention given
the critical situation.
She also called Matron Elizabeth Kentse
Kgomongwe, a nursing manager, to inform her of the state of affairs.
Matron Kgomongwe instructed
her to call Dr Kabale for an update on Dr
Pietz’s reaction to the obstetrical emergency.
[8] Dr Kabale called Dr
Pietz and informed him of the telephonic conversation he had with
Sister Ncube. Dr Pietz denied having been
informed of the prolapsed
cord. Dr Kabale instructed him to attend to the patient immediately.
Dr Pietz, who was furious, proceeded
to the ward. Upon his arrival,
around 23h35, visibly enraged, he enquired from the nursing staff
regarding who had contacted Dr
Kabale. Ncube acknowledged that she
had done so. Sister Nape says Dr Pietz hurled unprintable opprobrious
epithets at sister Ncube
“
f… you, who do you think
you are”.
Sister Ncube added that Dr Pietz proceeded to say
“
f.. you, f…the hospital, f…..this
management.”
He then approached sister Ncube in a
threatening manner as if he would assault her. He kicked the drip
stand which fell. Sister
Ncube who was terrified by Dr Pietz’s
conduct moved out of the ward and stood outside. Sister Nape
intimated that Dr Pietz
carried on in that vein for approximately
five to eight minutes before attending to the patient.
[9] According to sister
Nape when Dr Pietz eventually examined the patient the foetal heart
rate was 117-118 beats per minute (showing
a deceleration). Having
conducted his examination Dr Pietz left the hand of the unborn child
and the cord “
just [hanging] outside the vagina
”;
took off his gloves; and instructed the nursing staff to prepare the
patient for a caesarean section in the theatre. Dr
Pietz did not
inform the patient of the need to perform the C-section to enable the
patient to give her informed consent to the
operation. According to
him “
the sisters could inform the patient why she is going
for caesarean section
.” Prof Eckhart Johannes Buchmann, a
Professor of gynaecology and obstetrics at the Wits Medical School,
called as an expert
by Dr Pietz, explained that in terms of the
standard procedure “
the doctor in charge should speak to the
patient and explain what is wrong and why the operation is necessary
and how the operation
is going to be done
.”
[10]
Sister Nape further testified that Dr Pietz was supposed to push the
prolapsed parts back into the birth canal because if the
cord is
exposed to the cold environment the unborn child could die. Sister
Ncube used a warm wet gauze to push the prolapsed cord
and the hand
back into the birth canal to keep the cord pulsating. Having prepared
the patient and put her in a genupectoral (knee-chest)
position she
was wheeled into the theatre. There was tension in the theatre. Part
of the reason for the tension, according to Dr
Nosipho Taye, the
anesthetist in this case, who testified for Dr Pietz, was all about
the life of the unborn child. She also enquired
from one of the
sisters whether the cord was pulsating but the response was negative.
She then looked at Dr Pietz who confirmed
that the cord was not
pulsating. This version was not put to any of the department’s
witnesses.
As
a general rule it is essential, when it is intended to suggest
that a witness is not speaking the truth on a particular
point,
to direct the witness's attention to the fact by questions put in
cross-examination showing that the imputation is intended
to be made
and to afford the witness an opportunity, while still in the
witness-box, of giving any explanation open to the witness
and of
defending his or her character. If a point in dispute is left
unchallenged in cross-examination, the party calling the witness
is
entitled to assume that the unchallenged witness's testimony is
accepted as correct.
[5]
[11] Sister Nape says
that at the theater Dr Pietz continued disparaging the hospital and
management “
saying that we are stupid South Africans, even
management is stupid and he knows very well
”. He completed
the C-section but the child was stillborn. Attempts to resuscitate it
were in vain.
[12] The next day, on
Thursday 26 November 2009, Dr Pietz informed the patient that the
baby died before her admission to the ward
because she had not
attended the ante-natal clinic examinations. Earlier on that same day
around 09h00 Dr Kabale testified that
he had called Dr Pietz to
explain what had transpired. Dr Pietz told him that he was tired and
sleeping. The following day he telephonically
requested him to report
to his office. Dr Pietz replied that he was busy and would come later
but did not do so. Dr Pietz denied
that Dr Kabale made contact with
him on Thursday and Friday following the operation.
[13] On Monday 30
November 2009, at the behest of the executive committee of the
hospital, Dr Kabale wrote a letter to Dr Pietz
requesting him, within
a period of 24hrs, to give “
a full report of all the
processes you instituted in the management of the above patient (Ms P
Hlatshwayo)
”. In a separate letter of the same date his
overtime duties in gyne-obstetrics were suspended with immediate
effect pending
the outcome of the investigation into this and other
incidents which I will revert to. Dr Pietz did not respond to the
letter.
He intimated that the next day, 01 December 2009 around 9h00,
he spoke to one Dr Mitchell of the department and explained to him

what had transpired. Dr Mitchell accepted his explanation and
requested him to put it in writing. Before he could forward the
explanation to Dr Mitchell, he was dismissed.
[14] In his defence to
the allegations involving the treatment he accorded Ms Hlatshwayo, Dr
Pietz says he would have immediately
attended to the patient had the
sisters informed him of the prolapsed cord. He intimated that on his
arrival at the ward he observed
that four to five sisters were
disinterested in the patient. This version was not put to any of the
department’s witnesses.
Be that as it may, he conceded that he
did not report the sisters for their failure to assist the patient.
He went on to say that
the patient was lying in a normal and not
genupectoral position which would have been the case if the cord had
prolapsed as alleged
by the sisters. No catheter was inserted into
the patient’s bladder. The floor was dirty and slippery. He
enquired from the
sisters why they called Dr Kabale and had not
informed him of the prolapsed cord. He says that sister Ncube started
shouting at
him saying that she told him of the prolapsed cord and
did not want to discuss this further with him. He does not recall
using
any foul language when addressing the sisters. Because the
floor was wet he slipped and grabbed the drip stand but did not kick

it. He admitted that he was aggressive to sister Ncube who fled from
the ward.
[15] On his examination
of the patient Dr Pietz says he found, contrary to the sisters’
clinical findings, a presenting cord
which was not prolapsed. It was
also not pulsating. The foetus was not in breech presentation but
shoulder presentation (transverse
lie). It is important to state that
Prof Buchmann testified that, strictly speaking, the cord had already
prolapsed at the time
Dr Pietz examined the patient because the
membranes had ruptured.
[16] Dr Pietz admitted
that he did not check the NST machine to determine the heart rate of
the unborn child. However, he disputed
that it was above 118 beats
per minute as testified to by the sisters. He was of the view that
the only option open to deliver
the unborn child was through the
C-section because the full hand prolapsed from the birth canal, the
uterus was strongly contracted,
and could rupture. Therefore, he
instructed the sisters to prepare the patient for that procedure.
Prof Buchman confirmed that
the correct management of a transverse
lie with a shoulder and hand presentation, irrespective of whether
the unborn child was
already dead or alive, was through a C-section.
[17] Extensive evidence
was led at arbitration, without any demur from Dr Pietz, regarding
two previous incidents in which concerns
were raised regarding the
manner in which Dr Pietz dealt with requests to attend to three
pregnant mothers.
[18]
The first previous incident related to Ms Lizzie Okocho who was
admitted in the maternity ward on 02 July 2008. Her gestation
period
was 35 weeks with intra uterine death.
[6]
Early in her pregnancy her cervix was sutured. Dr Pietz had informed
the nurses that the shirodkar sutures would be removed in
the morning
prior to the induction of labour. In the next morning, when attempts
at contacting Dr Pietz had failed, Dr Kabale removed
the sutures and
induced the patient. Her cervix started dilating at 14h00.
[19] Half an hour later,
sister Bulelwa Nomtshongwana says, that while she was in the office,
she overheard Ms Okocho’s husband
screaming. She found the
patient and her husband on the floor. The patient was vigorously
fitting; bleeding from her forehead;
and had passed urine on the
floor. There was also blood on the floor and the wall from her
forehead.
[20] The nurses were busy
attending to the patient when Dr Pietz entered the ward. He did not
examine the patient’s forehead
or assist the nurses with how to
deal with the laceration on the forehead which was visible and
bleeding profusely. He ordered
the nurses to prepare the patient for
the C-section and left the ward. The nurses put a pressure bandage
around the patient’s
head to stop the bleeding. Later on that
day Dr Kabale found Dr Pietz and Dr Jetham in the ward. Dr Pietz was
signing the consent
form for the C-section. Dr Kabale says he stopped
him in his tracks and said because the patient had already been
induced and had
fits she be transferred to Baragwanath. Dr Pietz
transferred the patient.
[21]
Dr Pietz says that he was not informed about the laceration on the
patient’s forehead for the half hour he attended to
her. What
is remarkable is that Dr Kabale saw the blood-stained dressing on the
patient’s forehead. Dr Pietz further says
that his first
impression was that the C-section be performed but backtracked
because it would be risky to do so in South Rand
Hospital as the
latter had no ICU facility. He admitted that he did not examine the
patient because he saw her the previous day
at the antenatal clinic
and he “
knew
this patient, I knew the problem and I knew that this problem should
be resolved as soon as possible
.”
He could not say on what basis he informed Dr Kabale that the patient
was stable when he had not examined her. When confronted
on this
statement he said Dr Jetham was looking after the patient while he
was making arrangements for her transfer to Baragwanath.
He also
could not give a plausible response why he arranged that the patient
be transferred to Baragwanath when he had not examined
her. Insofar
as the stillborn baby was delivered naturally at Baragwanath and not
through a C-section he intimated that he could
not have been
negligent as it often happened that patients would deliver normally
albeit a C-section had been envisaged. Prof Buchmann
says that the
fact that the foetus was potentially macerated
[7]
was no reason for the C-section to have been ordered. He intimated
that the C-section or the transfer of the patient should not
have
been ordered unless a doctor had examined the patient.
[22] With regard to the
second previous incident the evidence can be summed up as follows. On
28 October 2009 Ms Serero Makali was
admitted to the hospital. Her
cervix was 3cm dilated and her water had broken. The foetal heart
rate was 118 beats per minute,
which is below normal, and there were
signs of foetal distress. There was also another patient in the ward,
Ms Bridgette Ragopane.
Her cervix was 1-2cm dilated with a “brownish
discharge”. Sister Ncube says that Dr Pietz saw the patients
and ordered
her to continue observing them. She was uncomfortable due
to their condition. She called Baragwanath Hospital for a second
opinion.
She also spoke to the CEO who advised her to use her
discretion and not put the patients’ life at risk. She
transferred the
patients to Baragwanath. Dr Pietz never enquired
about the patients thereafter.
[23] Dr Pietz intimates
that the sisters did not make any contact with him or report any
changes in the patients’ condition.
They were transferred to
Baragwanath Hospital without his knowledge.
The arbitration award:
[24] The commissioner
noted that the dismissal of Dr Pietz resulted from an incident which
occurred on 25 November 2009 “
where the applicant
(Dr
Pietz)
was allegedly called for a patient
(Hlatshwayo)
who
had a prolapsed cord
”. He identified that the only question
that fell to be determined was whether the nurses had conveyed to Dr
Pietz that the
patient’s cord had prolapsed and, if so, whether
his failure to immediately attend to the patient constituted gross
negligence.
[25] The commissioner
found that the nurses were unwavering in their evidence that when
they discovered that the patient’s
cord had prolapsed they
consulted each other and called Dr Pietz whose response to them was
that he be called when the patient
was fully dilated. The
commissioner held that Dr Pietz’s denial that he was told by
sister Nape about the prolapsed cord
begged the question why the
sisters would resort to calling the matron and the medical
superintendent regarding same but neglect
to relay the same message
to Dr Pietz. He was of the view that, even if sister Nape had omitted
to inform Dr Pietz of the prolapsed
cord, the fact that the nurses
took the trouble to call him meant that he ought to have immediately
attended to the patient to
establish how urgent the circumstances
were, regard being had to the fact that the patient was in pre-term
labour. He found that
Dr Pietz had been irate when he examined the
patient which in turn affected his interaction with the nurses.
[26] The commissioner
noted the dichotomy in the evidence of Dr Pietz and that of the
nurses regarding whether the prolapsed cord
had been pulsating. He
was of the view that this begged the question why the nurses went to
the trouble of following the guidelines
for maternity care if the
cord was not pulsating. Dr Pietz, he stated, merely did the physical
observation of the patient and determined
that the cord was not
pulsating which is contrary to Prof Buchmann’s expert opinion.
The commissioner accepted the evidence
by the nurses that they
recorded two heart rates of 117 and 128 beats per minute for the
mother and her unborn child, respectively,
through the NST machine at
23h15, soon after the admission of the patient at the hospital. He
rejected the evidence of Prof Buchmann
and Dr Pietz to the extent
that they testified that there might have been some confusion between
the heartbeats of the unborn child
and its mother.
[27] The commissioner was
of the view that it made no sense that Dr Pietz performed the
emergency C-section whereas he conceded
that the unborn child was no
longer alive. He reasoned that it was also illogical that Dr Pietz
did not inform the nurses that
the child was no longer alive. They
proceeded to look after the patient as contemplated in the guidelines
for the pulsating prolapsed
cord. In addition, he stated, Dr Pietz
did not inform Dr Taye, the anesthetist on duty, prior to the
operation that the unborn
child was no longer alive. The commissioner
concluded that Dr Pietz’s management of the patient “
was
extremely
careless and reckless
”.
[28] The commissioner had
regard to the previous incidents in respect of which the department
contended that Dr Pietz had been negligent
in the management of the
three patients’ cases. In respect of the incident concerning Ms
Okocho, he found it inexcusable
that having been informed that the
patient had seizures and was bleeding, he completely failed to
examine her. He found Dr Pietz’s
explanation that he had
examined the patient a day prior to the incident unacceptable. He
held that it was inappropriate that Dr
Pietz ordered that the
C-section be performed on Ms Okocho when he had not examined her and
had to be frowned upon because this
was a case of intra-uterine
death. With regard to the other previous incident involving the two
patients the commissioner held
that Dr Pietz’s denial that he
had refused to attend to the patients was not convincing because it
made no sense that the
nurses would jeopardise their careers by
transferring these patients to Chris Hani Baragwanath Hospital
without the doctor’s
authorisation.
[29] The commissioner
held that Dr Pietz blamed the nurses and made unwarranted accusations
that they were negligent in the manner
they managed the patients but
never laid any formal complaint against them with the hospital or the
Nursing Council. Dr Pietz was
duty bound to lay a formal complaint
against sister Nape for omitting to inform him of the prolapsed cord.
He found it remarkable
that Dr Pietz would let the complaint against
the nurses “slide” despite his allegation that he had no
good relationship
with them. He noted that Dr Pietz did not provide
feedback to Dr Kabale concerning the death of Ms Hlatshwayo’s
child. He
remarked that there were various means by which he could
have communicated with Dr Kabale. For instance, through the short
message
service (sms), e-mails, or telefax. He was of the view that
Dr Pietz was uncaring and lax in the performance of his duties.
[30] The commissioner
accepted that Dr Pietz’s general behaviour and working
relationship with the auxiliary employees was
unprofessional,
particularly considering the evidence that he attempted to assault
sister Ncube who avoided him by stepping outside.
[31] The commissioner
concluded that the department had discharged the
onus
of
proving that Dr Pietz was grossly negligent and had acted in a
reckless and uncaring manner with regard to the patients that
were
entrusted to his medical care. In respect of the allegation that Dr
Pietz was insolent the commissioner was of the view that
the
department did not adduce sufficient evidence to sustain the charge
and exonerated him.
[32] The commissioner
then turned his attention to the sanction imposed by the department.
He held that Dr Pietz “
was a senior employee who dealt with
a situation involving the life and death of the patients
”.
He violated the patients’ constitutional rights by failing to
provide them with proper health care, contrary to the
“Batho
Pele” principle. He was of the view that progressive discipline
would be inappropriate as the negligent act
was of a serious nature.
In addition, he stated, Dr Pietz did not show any contrition and
tried to justify his inexcusable conduct.
He found no cogent evidence
that Dr Kabale and the nurses were negligent. It could therefore not
be said that the department had
been inconsistent in the application
of discipline.
[33] In respect of
procedural fairness: The commissioner found that Dr Pietz was not
afforded the opportunity to state his case
and that the department
dismissed him unfairly. Notwithstanding this, he made the following
determination:
‘
40.
When the gross negligence of the applicant (Dr Pietz) is considered,
it is clear that it would
be difficult for me to justify granting
compensation. Especially when it is considered (that) he had the
responsibility of caring
for patients in a life and death situation.
Also, by his actions he violated the patients’ constitutional
rights and when
he was approached by the hospital to provide reports
on his actions he refused to cooperate placing the hospital in a
precarious
position which could have resulted in claims being brought
against the hospital. During the arbitration the applicant also
failed
to show any remorse.
41.
I have also considered that while the respondent (the department) did
not follow the proper
procedure the applicant was given an
opportunity to explain his actions to the respondent in a letter
dated the 30
th
of November 2009 which he failed to do.’
[34] The commissioner
refused to exercise his discretion in favour of awarding Dr Pietz
compensation for the procedurally unfair
dismissal. Resultantly, he
dismissed Dr Pietz unfair dismissal claim.
The review proceedings
before the Labour Court:
[35]
The Labour Court (“the Court
a
quo”
)
commenced its enquiry by setting out the test for the review of the
arbitration awards under the LRA as formulated in various
decisions
of the Courts.
[8]
It identified
the following grounds of review raised by Dr Pietz in his founding
papers. That the commissioner failed to apply
his mind or committed a
gross irregularity in that:
35.1    He
failed to award compensation for the procedurally unfair dismissal;
35.2    He
considered irrelevant evidence which impacted adversely on the
outcome of the arbitration. The contention
had been that the
resultant decision was one that no reasonable commissioner could have
reached; and lastly
35.3    He
failed to properly consider the evidence before him.
[36]
On the question of failure by the commissioner to award compensation
for the alleged procedurally unfair dismissal the Court
a
quo
held that in terms of s193 of the LRA the commissioner had a
discretion to award compensation.
[9]
The Court
a
quo
was of the view that the exercise of the discretion involved a
two-stage enquiry: firstly, whether the compensation should be
awarded, and secondly, the appropriate amount to be awarded as
compensation subject to the limitation imposed by s194 of the
LRA.
[10]
It was satisfied with
the commissioner’s finding that “
an
employee party that was unfairly dismissed does not have an automatic
right to relief
.”
It recognised the danger of allowing an employer to escape the
consequences of not following a fair process but was persuaded
that
the commissioner’s decision in refusing to allow compensation,
in the circumstances of this case, was appropriate. To
hold
otherwise, it remarked, “
would
not pass the moral and value judgment test
.”
[37] On the aspect that
the commissioner considered irrelevant evidence (previous alleged
acts of negligence by Dr Pietz which impacted
adversely on the
outcome of the arbitration) the Court
a quo
was not swayed
that the commissioner erred in his evaluation of Dr Pietz’s
general conduct. He remarked that a reading of
the award reflected
that the commissioner was alive to the key issue he was enjoined to
determine. This being, the negligence said
to have been perpetrated
by Dr Pietz with regard to the management of Ms Hlatshwayo’s
case. This, he stated, formed the basis
of the commissioner’s
decision.
[38] The Court
a quo
had regard to the question whether the commissioner failed to
consider the evidence before him; failed to recognise that there
was
no causal link between the death of the unborn child and the alleged
negligent conduct; and had improperly considered the evidence
of Prof
Buchmann which resulted in an unreasonable outcome.
[39] The Court
a quo
held that the commissioner had in fact dealt with the probabilities
in respect of the parties’ conflicting versions. He also

appropriately assessed the credibility and reliability of the
witnesses’ evidence. He found that Dr Pietz did not adduce

coherent evidence demonstrating that the nurses conspired against
him. Dr Pietz conceded that he had no reason to believe that
sister
Nape would lie. The Judge was of the view that the conclusion reached
by the commissioner that Dr Pietz was notified by
sister Nape on 25
November 2009 that the patient’s cord had prolapsed was
inescapable. He remarked that Dr Pietz never accepted
blame for any
of his negligent conduct. Dr Pietz, he said, provided no acceptable
reason why he did not react to the nurses’
call informing him
of the prolapsed cord or the pre-term delivery by the patient.
[40] The Court
a quo
was of the view that Prof Buchmann’s testimony was academic
and neutral. It did not corroborate Dr Pietz’s version on
any
of the material aspects. On the contrary, the professor often
criticised the manner in which Dr Pietz handled the critical

situation. Dr Pietz was unable to justify his actions or omissions
and did not provide any cogent reason why he failed to inform
his
fellow team workers, including the anaesthetist, that the unborn
child had already died prior to the C-section.
[41] The Court
a quo
further remarked:
‘
(T)he
applicant’s conduct and actions surrounding the operation
speaks to the probable conclusion that the child was not dead
at the
time of going to the theatre and that renders the applicant’s
version of events improbable.’
[42] The Court
a quo
held that even though “
the death of the baby looms large
over this case, it had not been the fundamental allegation against
the applicant (Dr Pietz)
.” It found no support for the
argument that Dr Pietz was dismissed because he caused the death of
the unborn child.
Per contra
, it stated that the commissioner
determined that Dr Pietz had been grossly negligent in his response
to the critical situation.
The Judge was of the view that part of the
reason that the cause or time of death could not be determined was
due to the failure
by Dr Pietz to communicate with his team and
complete the medical records. It went on:
‘
To now hide
behind the “incomplete picture” which he is largely to be
blamed for, and to then proceed to point at the
first respondent (the
department) for failure to provide clear evidence on these aspects,
is nothing but disingenuous’.
[43] The Court
a quo
concluded that the commissioner’s decision fell within the
purview of reasonable decisions that a reasonable decision-maker

could make. No irregularity existed which warranted his interference.
As already alluded to the Court
a quo
dismissed the review
application with costs.
The grounds of appeal
before us:
[44] Dr Pietz’s
principal argument on appeal is fourfold. In summary, it was
contended:
44.1
The commissioner’s decision not to award Dr Pietz any
compensation for procedural unfairness was wrong
both in law and in
fact and therefore reviewable. In the alternative, it was contended,
that the decision is one that no reasonable
decision-maker could have
reached.
44.2
The commissioner determined the issue of substantive fairness by
attaching significant weight to irrelevant
evidence regarding two
previous incidents (“the Okocho case” and the case of two
patients who were transferred to the
Baragwanath Hospital) which,
according to him, formed no part of the reasons for his dismissal and
for which he was not disciplined.
It was contended that in acting as
he did the commissioner misconceived the nature of the enquiry he was
enjoined to undertake;
exceeded his powers; committed a gross
irregularity and/or misconduct in relation to his duties; and came to
a decision that no
reasonable commissioner would have reached.
44.3
The commissioner’s finding that sister Nape informed Dr Pietz
of the prolapsed cord, during their hotly
contested telephonic
conversation of 25 November 2009, was arbitrary and not justifiable
on the facts.
44.4
There was no causal link between the alleged misconduct and the death
of the unborn child and therefore the
decision to dismiss Dr Pietz
was harsh and no reasonable commissioner could have upheld the
dismissal.
Evaluation of
substantive fairness of the dismissal:
[45] Under the
substantive head, there are three crisp issues arising for
consideration in this appeal.
45.1    First,
whether sister Nape told Dr Pietz of the prolapsed cord.
45.2
Second, whether a causal connection between the conduct of Dr Pietz
and the death of the unborn child had
been established.
45.3
Third, whether the evidence in respect of the previous incidents,
pertaining to the conduct of Dr Pietz when
attending to the patients
involved in those cases, was irrelevant. In addition, whether in
considering that evidence, the commissioner
exceeded his powers,
committed a gross irregularity, and/or misconduct in relation to his
duties.
[46]
As support for the conclusion that errors of fact by a commissioner
would not ordinarily give rise to a valid review ground
the Court
a
quo
referred to
Dumani
v Nair and Another
[11]
where the Supreme Court
of Appeal (SCA) quoted the following instructive dictum in
Pepcor
Retirement Fund and Another v Financial Services Board and
Another
:
[12]
‘
[47] In my
view, a material mistake of fact should be a basis upon which a Court
can review an administrative decision. If legislation
has empowered a
functionary to make a decision, in the public interest, the decision
should be made on the material facts which
should have been
available for the decision properly to be made. And if a decision has
been made in ignorance of facts material
to the decision and which
therefore should have been before the functionary, the decision
should (subject to what is said in para
[10] above) be reviewable at
the suit of,
inter
alios
,
the functionary who made it - even although the functionary may have
been guilty of negligence and even where a person who is
not guilty
of fraudulent conduct has benefited by the decision. The doctrine of
legality which was the basis of the decisions in
Fedsure
[1998] ZACC 17
;
[1999
(1) SA 374
(CC)]
,
Sarfu
[2000
(1) SA 1
(CC)] and
Pharmaceutical
Manufacturers
[2000] ZACC 1
;
[2000
(2) SA 674
(CC)] requires that the power conferred on a functionary
to make decisions in the public interest, should be exercised
properly,
ie on the basis of the true facts; it should not be
confined to cases where the common law would categorise the decision
as
ultra
vires
.
[48] Recognition of material mistake
of fact as a potential ground of review obviously has its dangers. It
should not be permitted
to be misused in such a way as to blur, far
less eliminate, the fundamental distinction in our law between two
distinct forms of relief:
appeal and review. For example, where
both the power to determine what facts are relevant to the making of
a decision, and the
power to determine whether or not they exist, has
been entrusted to a particular functionary (be it a person or a body
of persons),
it would not be possible to review and set aside its
decision merely because the reviewing Court considers that the
functionary
was mistaken either in its assessment of what facts were
relevant, or in concluding that the facts exist. If it were, there
would
be no point in preserving the time-honoured and socially
necessary separate and distinct forms of relief which the remedies of
appeal and review provide. Of course, these limitations upon a
reviewing Court's power do not extend to what have come to be

known as jurisdictional facts and, in my view, it will continue to be
both necessary and desirable to maintain that particular
category of
fact. I am therefore, with respect, unable to share the opinion of
Professors
Wade and Forsyth
(quoted in para [39]
above) that one can safely 'consign much of the old law about
jurisdictional fact, etc, to well-deserved
oblivion' if by that
statement is meant that the distinction between appeal and review
will be eliminated…’
[47]
In
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae),
[13]
the
SCA pronounced that:
‘
For
a defect in the conduct of the proceedings to have amounted to a
gross irregularity as contemplated by s 145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result. A result will only
be
unreasonable if it is one that a reasonable arbitrator could not
reach on all the material that was before the arbitrator. Material

errors of fact, as well as the weight and relevance to be attached to
particular facts, are not in and of themselves sufficient
for an
award to be set aside, but are only of any consequence if their
effect is to render the outcome unreasonable.’
[48]
In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration and Others (Gold
Fields
),
[14]
this Court made it plain that where a gross irregularity in
the proceedings is alleged, the enquiry is not confined to
whether
the arbitrator misconceived the nature of the proceedings,
but extends to whether the decision that the arbitrator arrived at is

one that falls within a band of decisions to which a reasonable
decision-maker could come on the available material.
The first aspect:
Whether Dr Pietz was informed of the prolapsed cord.
[49] Adv Boda SC, for Dr
Pietz, contended that the department had fallen far short of
discharging the
onus
resting upon it to prove that sister Nape
told Dr Pietz about the prolapsed cord. He argued that this was so
because:
49.1    Dr
Pietz would not have responded to sister Nape that he would attend to
the patient when her cervix was
fully dilated had he been informed of
the prolapsed cord;
49.2
Sister Ncube was surprised at the response by Dr Pietz that he would
attend to the patient when she was fully
dilated. Sister Ncube’s
question to sister Nape “
did you tell him that the cord
prolapsed
?”, it was contended, was significant in this
regard.
49.3
Neither sisters Ncube nor Nape called Dr Pietz again to enquire
whether he indeed understood what Nape had
claimed she said. The
innuendo is that Dr Pietz may not have gathered fully the import of
the message that the patient’s
cord had prolapsed.
49.4    Dr
Pietz’s aggression was purely motivated by the nurses’
failure to notify him of the prolapsed
cord. It was further contended
that sister Ncube was unable to recall whether Dr Pietz had expressed
to the nurses that he was
not informed of the cord prolapse.
49.5
Matron Kgomongwe was informed by the nurses that Dr Pietz had been
called “
to come and examine the patient and Dr Pietz told
them they should leave the patient to be fully dilated
”. It
was submitted that this evidence left out the most crucial aspect
about the prolapsed cord.
49.6    Dr
Taye, the anaesthetist on duty, testified that Dr Pietz was upset
because the nurses had not told him
of the prolapsed cord and learned
of this when Dr Kabale called him.
49.7
Prof Buchmann’s evidence was that the nurses did not do their
job properly because they did not mitigate
against the compression
and the umbilical cord before Dr Pietz’s arrival.
[50]
There are disputes of fact on the question whether sister Nape when
she called Dr Pietz, informed him of the prolapsed cord.
Sister
Nape says that she “
clearly
”
conveyed the message to Dr Pietz that the patient’s cord had
prolapsed. Dr Pietz’s argument that he was not
informed of the
prolapsed cord is fraught with difficulties because, on his own
version, at the very least, he had been made aware
that the patient
had been admitted with a breech presentation; she was approximately
28 weeks pregnant; her membranes had ruptured;
and her cervix was
about 6cm dilated. Sister Ncube’s evidence, which was
corroborated by that of Dr Kabale and Prof Buchmann,
was that at 28
weeks’ period of gestation a doctor’s presence was
required to manage the pre-term labour regardless
of whether the cord
had prolapsed. She added that “
When
we phone it means we are having problems, so we need him.
”
This, I believe, puts paid to any argument that Dr Pietz was not
aware that his immediate attendance was required. There
was no need
for him to be reminded that the patient’s condition required a
prompt response.
[51]
It is impermissible for a party to blow hot and cold.
[15]
On the one hand, Dr Pietz’s argument is that the nurses did not
do their job properly because they did not mitigate against
the
compression and the umbilical cord before his arrival. On the other
hand, the contention is that the commissioner ignored the
evidence by
sister Ncube to the effect that she took appropriate action by
inserting her fingers into the birth canal to prevent
the obstruction
of blood supply to the foetus and that the nurses had been preparing
the patient for the anticipated C-section
before Dr Pietz’s
arrival.
[52] Dr Pietz simply did
not heed the urgent call. When asked why he did not immediately
attend to the patient because she was in
pre-term labour his
startling response was that it was not an emergency. He further
intimated:
‘
(W)hen the
sister told me that it is only 28 weeks and 28 weeks is the border
line between abortion and normal delivery. For me
it was not really
urgent just to go and see this patient immediately, I could go and
see this patient later.’
[53] Dr Pietz was unable
to offer any reasonable explanation to the commissioner why he had
not reported the nurses to the matron
or the nursing council, for
their failure to inform him of the prolapsed cord, if he was so
deeply troubled by their conduct.
[54] Dr Pietz’s
aggression towards the nurses was unwarranted. What is further
disconcerting is that it was put to the department’s
witnesses
that when called to testify the doctor would say “
he might
have used strong language but he did not use any (abusive) language
towards management
.” The expletives, it was said, were
directed at the situation where the doctor had not been informed of
the prolapsed cord.
There was clearly some altercation which went
about in front of the patient. Sister Nape and Dr Pietz said sister
Ncube fled from
the ward. It makes no sense that sister Ncube would
decamp if the doctor was not ranting and raving in total disregard of
the Batho
Pele principle as found by the commissioner. The
probabilities are that Dr Pietz approached sister Ncube in a
threatening manner
and kicked the drip stand in the process. Clearly,
Dr Pietz did not immediately attend to the medical emergency he was
called for.
The deprecated conduct by Dr Pietz was woefully
inappropriate.
[55]
To come to a conclusion on the disputed issues, a Court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities.
[16]
The Court
a
quo
correctly concluded that the commissioner had dealt with the
probabilities in respect of the parties’ conflicting versions.

He also appropriately assessed the credibility and reliability of the
witnesses. The commissioner was right that it was improbable
that the
nurses would inform both Dr Kabale and Matron Kgomongwe of the
prolapsed cord but neglect to inform Dr Pietz, who was
the doctor in
charge at the relevant time.
[56] The commissioner
cannot be faulted in rejecting Dr Pietz’s defence that he was a
victim of a conspiracy and malicious
plot. More so because Dr Pietz
conceded that sister Nape had nothing against him and he had no
quibbles with her. The judge
a quo
correctly found:
‘
In view of
the fact that the applicant had no reason to believe that Miss Nape
failed to tell the truth during her testimony, it
can only be
considered correct that the commissioner reached a reasonable
decision when he found that the applicant had indeed
been told about
the prolapsed cord.’
The second aspect: The
question of causation
[57] Mr Boda’s
argument is mainly predicated on the letter of termination of Dr
Pietz’s services insofar as it records:
“
It has come
to the attention of the department that you were involved in an act
of misconduct (Gross negligence, insolent behaviour
and
insubordination)
leading to the death of an unborn child.
”
He contended that there was no evidence demonstrating that Dr Pietz
caused the death of the unborn child. Adv Hulley SC, for the

department, contended that the death of the unborn child cannot be
discounted. He argued that Dr Pietz’s conduct (leaving
the
unborn child’s hand and the cord “
just hanging outside
the vagina
”), after removing his fingers from Ms
Hlatshwayo’s birth canal, was negligent and could have caused
the unborn child’s
death.
[58] From the factual
matrix sketched the cause and the time of death of the unborn child
is in dispute. It is important to remember
that Sister Nape’s
evidence was to the effect that she placed Ms Hlatshwayo on the NST
machine immediately following her
admission at the hospital. This
machine indicated that, at that time, the foetal heart rate was 128
beats per minute. Sister Nape
further intimated when Dr Pietz
examined the patient the foetal heart rate was 117-118 beats per
minute and slowing down. On this
score, Prof Buchmann said he could
not reject the nurses’ version out of hand and said it was very
difficult to say if Dr
Pietz or the nurses were right.
[59] Sister Nape disputed
that her recorded heart rate of 117-118 beats per minute was that of
the patient, Ms Hlatshwayo. She also
disputed that the unborn child
had no heart rate and that the cord was not pulsating. She persisted
that when she initially examined
the patient “
the baby was
still moving, that is why even the foetal heart (rate) was 128, which
means it was still normal at that time
.” Sister Ncube
remained steadfast on this aspect.
[60]
The nurses were accused of being negligent because the NST machine
was not set to record both the mother and unborn child’s
heart
rates in a print format. In my view, the lack of recorded information
on the NST machine does not advance Dr Pietz’s
case because the
direct evidence by sister Nape was that she recorded on the Admission
in Labour Forms
[17]
the
information as was reflected on the NST machine at the time. In the
end, it was Dr Pietz’s responsibility to verify the
information
relayed to him by the sisters. He admitted that he did not check the
NST machine. Nothing lends any credence to his
version that the
machine was not connected to the patient. He merely conducted the
physical examination and concluded that the
unborn child had died.
Prof Buchmann criticised this incorrect form of assessment as
follows:
‘
The
interesting thing is that they [the nurses] reported…that the
cord was pulsating even after he [Dr Pietz] had examined
the cord
himself. So it cannot be temporal thing that they found it pulsating
first and then he, then the baby died and he did
not find it
pulsating, they actually said it was after. How do I explain that? I
cannot explain it very well, except that
we
are told and we teach, doctors and our students, that you do not
diagnose foetal life or death by feeling the cord, because the
cord
can pick up pulsations from fingers and can feel as if it is
pulsating when it is not. Alternatively it may be in spasm with
a
live baby and you do not feel it pulsating when the baby is actually
still alive. So we always want to confirm if the baby is
alive by
listening to the baby’s heart or doing an ultrasound or using a
Doppler instrument.’
(My
emphasis.)
[61] Prof Buchmann did
not criticise the nurses for having used the NST machine to measure
the patient’s and the unborn child’s
heart rates. On the
contrary, he said this machine is frequently used in his department.
In the absence of any countervailing evidence,
the nurses’
clinical finding that they picked up both the mother and the unborn
child’s heart rate on the NST machine
at the time of admission
and during the doctor’s examination of the patient must be
accepted.
[62] What I find
astonishing, if Dr Pietz’s version is to be accepted, is that
he did not inform Dr Taye and the nurses that
the unborn child had
already died when the patient was wheeled to the theatre. The nurses’
reaction of placing some warm
wet gauze on the birth canal to push
the pulsating prolapsed cord and the hand of the unborn child back
into the birth canal in
order to keep the cord pulsating is
significant. As correctly found by the commissioner, it defies logic
that the doctor did not
announce to the team that the child was
already dead when the mother was prepared for the immediate
C-section. Even more remarkable
is that the doctor did not bother to
notify Ms Hlatshwayo that her unborn child was already dead. He also
did not mention this
critical issue in the obstetrical clinical
records of the patient. According to Prof Buchmann Dr Pietz should
have recorded this
information in the records.
[63] The Court
a quo
cannot be faulted in concluding that “
the applicant’s
conduct and actions surrounding the operation speaks to the probable
conclusion that the child was not dead
at the time of going to
theatre and that renders the applicant’s version of events
improbable
.”
[64] One important
observation made by the Court
a quo
was that the death of the
unborn child was not the fundamental allegation brought against Dr
Pietz. What the department, on more
than one occasion, took issue
with was that “
the applicant had been grossly negligent in
his response to the situation and not for the death of the baby
.”
The Judge
a quo
was correct in concluding that “
Part
of the reason that the cause or time of death cannot be determined is
the fact that the applicant failed to communicate properly
with his
team and failed to complete documentation/records. To hide behind the
incomplete picture which he is clearly to be blamed
for, and to then
proceed to point at the first respondent for their failure to provide
clear evidence on these aspects, is nothing
but disingenuous.
”
[65]
In the final analysis what is important is how Dr Pietz attended to
the patient. Apparent from the factual background is that
he was
grossly negligent. In his lengthy statement
[18]
Dr Pietz says that “
This
was the fourth probably unwanted pregnancy
.”
There is no basis established on the papers for this conclusion. What
can be inferred from this is that he attended to
this patient in an
indifferent and uncaring manner because what prevailed in his mind
was that the pregnancy was “
probably
unwanted
”.
The third aspect: The
evidence in respect of the previous incidents.
[66] As already alluded
to, the issues pertaining to the previous incidents involving Ms
Okocho, who had a laceration on her forehead
as a result of fitting
and falling from bed and the case of two other patients, one of whom
was suffering with foetal distress
and the other with a prolonged
latent phase of labour, was canvassed at great length during the
arbitration without any objection
from Dr Pietz to the admission of
this additional evidence. It is also important to point out that Dr
Pietz’s grounds of
review metamorphosed somewhat with the
passage of time. In its founding papers, concerning the evidence with
regard to the previous
incidents, he attacked the award on the basis
that the commissioner ignored his explanation of the incidents; on
the grounds of
inconsistency in the application of discipline by the
department; and on the basis of probabilities. On appeal, his
argument is
that the commissioner ought to have ruled this evidence
irrelevant.
[67] Mr Boda contended
that the commissioner had no jurisdiction to deal with the evidence
adduced in respect of the previous incidents
because these were not
disputes referred by Dr Pietz to arbitration. In entertaining that
evidence, so it was contended, the commissioner
exceeded his powers
and jurisdiction and beclouded his judgment with irrelevant evidence.
Mr Boda further contended that reliance
on the previous incidents by
the commissioner tainted his consideration of the question of the
substantive fairness of the dismissal;
he misconceived the nature of
the enquiry to determine both the guilt and sanction.
[68] Mr Boda argued that
it was not open to the department to rely upon any other extraneous
incidents for which Dr Pietz was not
disciplined or dismissed to
demonstrate the substantive fairness of the dismissal. Where an
employer relies on one reason to dismiss
an employee it cannot extend
the ambit of the dispute by relying on other unrelated disputes as a
matter of law, the argument went.
Mr Boda submitted that the
commissioner’s consideration of the previous incidents resulted
in a decision that no reasonable
commissioner would arrive at on the
substantive fairness of the dismissal.
[69] At the commencement
of the analysis of the evidence the commissioner summarised the issue
in dispute as: “
Whether or not in the case of patient
Hlatshwayo the applicant was aware of the prolapsed cord
.”
He comprehensively dealt with the evidence pertaining to this aspect
and made this determination: “
When
all
this is considered the only inference that can be made is that the
applicant’s management of patient Hlatshwayo was
extremely
careless and reckless
.” Regard being had to this
conclusion, it can hardly be argued that the commissioner
misconceived the true nature of the
enquiry he was enjoined to
undertake or arrived at an unreasonable result. The Court
a quo
was correct in finding that the commissioner understood what the main
issues in dispute were.
[70] In my view, the
misconduct for which Dr Pietz was dismissed, the mismanagement of Ms
Hlatshwayo’s case, suffices on its
own to justify a conclusion
that the department discharged the
onus
, on the balance of
probabilities, that the dismissal was substantively fair.
The discrepancies in
the evidence adduced at arbitration.
[71]
It was contended, on behalf of Dr Pietz,
inter
alia
,
that: the nurses were inconsistent in their evidence with regard to
the alleged offensive remarks which Dr Pietz had directed
towards the
hospital management; there were discrepancies in the nurses’
account of the time it took to perform the operation;
there were also
contradictions on the times sister Nape made her notes on the
clinical records and that she backdated same to reflect
the time she
made the telephone call to Dr Pietz. I am of the view that these were
immaterial contradictions which would not render
the outcome of the
arbitration unreasonable. When regard is had to the review test as
laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[19]
little
purpose, if any, is served by referring to copious passages from the
transcript to highlight why the version presented on
behalf of one
party was improbable and should have been rejected.
Evaluation of the
procedural fairness of the dismissal.
[72] The
audi alteram
partem
principle was not given effect to in this case because the
pre-dismissal processes were not followed prior to Dr Pietz’s
dismissal. Dr Rachman, the Head of Services for the department, gave
evidence on the reasons why the disciplinary enquiry was dispensed

with. Regrettably, the transcribed record of the portion of his
evidence has several indistinct parts. He intimated that part of
the
reason for not following due process was the treatment which Dr Pietz
accorded to Ms Hlatshwayo: “
it warrants not only summary
dismissal, much more than that
”. He further testified that
a long drawn disciplinary process would have amounted to a waste of
the taxpayers’ money.
As already alluded to, on the eve of Dr
Pietz’s dismissal, he was given a letter in which he was
requested, within 24 hours,
to give a report in respect of how he
managed Ms Hlatshwayo’s case. On the next day, before he could
provide the response,
he was dismissed.
[73]
Mr Boda contended that the commissioner, in declining to offer Dr
Pietz compensation under these circumstances, misconstrued
the
applicable legal principles in relation to the relief of compensation
and considered himself to be bound by the “all
or nothing”
obsolete legal principles.
[20]
He contended that the decision not to award compensation for
procedural unfairness sets a dangerous precedent in the workplace
and
renders an employee’s due process rights utterly hollow and
nugatory. Mr Hulley contended that the language of s194(1)
of the
LRA
[21]
makes it plain that a
Court or an arbitrator, as the case may be, is enjoined to award just
and equitable compensation having regard
to “
all
the circumstances”.
These
are the circumstances, so he argued, that may legitimately impact
upon what is just and equitable
.
[74]
In
Kemp
t/a Centralmed v Rawlins,
[22]
this
Court made the following seminal pronouncement:
‘
[22]
I do not think that the provisions of s 193(1)
(c)
of
the Act give the Labour Court or an arbitrator the kind of power
which would enable it or him to grant or refuse an order
of
compensation on identical facts as it or he sees fit. In my view
the ultimate question that the Labour Court or an arbitrator
has to
answer in order to determine whether compensation should or should
not be granted is: which one of the two options would
better meet the
requirements of fairness having regard to all the circumstances of
this case? If the court or arbitrator answers
that the
requirements of fairness, when regard is had to all of the
circumstances, will be better met by denying the employee
compensation, no order of payment of compensation should be made. If
the court or arbitrator answers that the requirements of fairness

will be better met by awarding the employee compensation, then
compensation should be awarded. When that question is answered,
the
interests of both the employer and the employee must be taken into
account together with all the relevant factors. In my view,
where the
court or an arbitrator decides the issue of whether or not to award
the employee compensation, it does not exercise
a true
discretion or a narrow discretion. The determination of that question
or issue requires the passing of a moral or value
judgment. It is
decided or determined on the basis of the conceptions of fairness
because the court or arbitrator has to look at
all the circumstances
and say to itself or himself or herself as the case may be: What
would be more in accordance with justice
and fairness in this case?
Would it be to award compensation or would it be to refuse to award
compensation? It or he or she would
then have to make the decision in
accordance with its, his or her sense of which of the two options
would better serve the requirements
of justice and fairness.”
The
Court proceeded as follows at 2696-2697
para
55:
'The importance
of the distinction between a discretion that is exercised in terms of
s 193(1)
(c)
and a discretion that is exercised in terms
of s 194(1) is how the reviewing court will consider the matter.
When
the discretion that is challenged is a discretion such as the one
exercised in terms of s 194(1) the test that the court, called
upon
to interfere with the discretion, will apply is to evaluate
whether the decision maker acted capriciously, or upon the
wrong
principle, or with bias, or whether or not the discretion exercised
was based on substantial reasons or whether the decision
maker
adopted an incorrect approach.
When dealing with a discretion
however such as provided in s 193(1)
(c)
, the court must
consider if the arbitrator or the Labour Court properly took
into account all the factors and circumstances
in coming to its
decision and that the decision arrived at is justified. In essence
therefore, a review of a discretion exercised
in terms of s
193(1)
(c)
is essentially no different to an appeal
because the reviewing court will be required to consider all the
facts and circumstances
which the arbitrator or the Labour Court had
before it and then decide based on a proper evaluation of those facts
and circumstances
whether or not the decision was judicially a
correct one.’ (My emphasis)
[75]
An
employee's entitlement to a pre–dismissal hearing is well
recognised in our law. Such a right may have, as its source,
the
common law or a statute which applies to the employment
relationship between the parties.
[23]
This
entitlement is reflected in Schedule 8 Item 4 of the Code of Good
Practice (Dismissal) of the LRA which provides that
the employee
ought to be afforded an opportunity to state his/her case prior to
dismissal for misconduct. It was held in
Slagment
(Pty) Ltd v Building Construction & Allied Workers Union and
Others
[24]
that:
'It is
within the province of the employer who holds a disciplinary
enquiry to determine its form and the procedure to be adopted,

provided always that they must be fair. Fairness requires,
inter
alia
, that the employee should be given an opportunity of meeting
the case against him: the employer must obey the injunction audi
alteram
partem.’
[76]
In
Kemp
t/a Centralmed v Rawlins
(supra) Zondo JP listed a number of factors, the list of which is not
exhaustive, which are relevant to the question whether a
Court or a
commissioner should or should not order the employer to pay
compensation. Included in these are the following factors:
76.1
Insofar as the dismissal is procedurally unfair, the nature and
extent of the deviation from the procedural
requirements; the less
the employer's deviation from what was procedurally required, the
greater the chances are that the court
or arbitrator may justifiably
refuse to award compensation; obviously, the more serious the
employer's deviation from what
was procedurally required, the
stronger the case is for the awarding of compensation.
76.2
Insofar as the reason for dismissal is misconduct, whether the
employee was guilty or innocent of the misconduct;
if he was guilty,
whether such misconduct was in the circumstances of the case not
sufficient to constitute a fair reason
for the dismissal.
76.3
The consequences to the parties if compensation is awarded and the
consequences to the parties if compensation
is not awarded.
76.4
The need for the courts, generally speaking, to provide a remedy
where a wrong has been committed against
a party to litigation but
also the need to acknowledge that there are cases where no remedy
should be provided despite a wrong
having been committed even though
these should not be frequent.
[77]
In concluding that “
(W)hen the
gross negligence of
the applicant
(Dr Pietz) is considered, it is clear that
it would be difficult for me to justify granting compensation
”
the commissioner’s discretion was based solely on issues that
fell within the ambit of substantive fairness of the
dismissal
without any consideration of the due process that was not followed in
this case. In my view, the commissioner’s
undue accentuation of
the aspects of substantive fairness, in the exercise of his
discretion whether to award compensation for
procedural unfairness,
was patently unjust and inequitable. I am of the view that, in so
doing, the commissioner followed an incorrect
approach.
[78]
The right to due process finds expression in the right to fair labour
practices and in the right to be afforded a fair hearing
prior to
dismissal as entrenched in the LRA. When this right is breached the
employee loses the constitutional protection emanating
from the right
to fair labour practices.
[79]
The CCMA Guidelines in respect of misconduct arbitrations effective
as at 01 January 2012
[25]
require the commissioners to assess the degree of departure from the
requirement of procedural unfairness. They provide in part:
‘
Compensation
for procedurally unfair dismissals
135.
An Arbitrator who finds that a dismissal is procedurally unfair must
determine:
135.1
Whether an award of compensation is appropriate in the light of
severity of the procedural unfairness; and
135.2
If it is, determine an amount of compensation that is just and
equitable in all the circumstances.
136
The Courts have held that compensation in these circumstances is a
solatium for loss of the right
to a fair pre-dismissal procedure. It
is punitive of the employer to the extent that the employer who has
breached the right must
pay a penalty for doing so.
137
In order to determine the appropriate amount of compensation for the
procedurally unfair dismissal,
the arbitrator must take into account
the extent or severity of the procedural irregularity together with
the anxiety or hurt experienced
by the employee as a result of the
unfairness.
138
An arbitrator may find that a
dismissal is procedurally unfair but award no compensation because
the procedural irregularity was
minor and did not prejudice or
inconvenience the employee. When assessing the extent of the
procedural irregularity, arbitrators
may consider the employer’s
conduct prior to, and in the course of, dismissing the employee.
’
[80]
In my view, the egregious disregard of Dr Pietz’s right to a
fair pre-dismissal hearing justified redress on a just and
equitable
basis by the commissioner as a
solatium
for the loss of the
right to a fair pre-dismissal procedure. To this extent the
commissioner’s award merits this Court’s
interference.
[81]
Insofar as there had been a partial success both at the proceedings
before the labour Court and in this Court I am of the view
that it
will be in accordance with the requirements of law and fairness that
each party pay its own costs. In the result, I make
the following
order.
Order
1.
The
appeal is upheld in part.
2.
No
order is made as to costs in respect of the appeal.
3.
The
order of the Court
a
quo
is set aside and substituted with the following:
“
(a)
The review application succeeds in part;
(b)
The
commissioner’s decision not to award compensation is reviewed
and set aside;
(c)
The arbitration award dated 15 August 2012 issued under case No
PSHS642-09/10 is amended
by the addition of the following order:
(i)
The dismissal of the applicant, Dr Grzegorc Ludwick Pietz, is found
to be substantively
fair but procedurally unfair;
(ii)
The respondent, the Department of Health, Gauteng Province, is to pay
the applicant
compensation equivalent to (3) three months’
remuneration;
(d)
No order is made as to costs.”
_________________________
MV Phatshoane
Acting
Judge of the Labour Appeal Court
Landman JA and Molemela
JA concur in the judgment of Phatshoane AJA
APPEARANCES:
FOR THE APPELLANT:

Adv F A Boda SC
Instructed by Hogan
Lovells (South Africa) Inc
FOR THE FIRST RESPONDENT:
Adv I Hulley SC assisted by Adv
S B Nhlapo
Instructed by The
State Attorneys
[1]
The award is date-stamped 21 August
2012
[2]
In terms of the
Guidelines for Maternity Care in South Africa 2007, third edition
(record page 295-320) -
A
level 1 hospital “may be called a district hospital, as it
would normally be the base hospital for a heal district. The

definition applies best to rural areas, while in urban areas level 1
hospital functions are often integrated into larger hospitals.”

The evidence suggests that this would be a type of hospital which
does not have facilities such as an ICU, Paediatric Unit and
the
like specialised units. It provides basic procedures not major
operations.
[3]
At times referred
to as the CGT (Cardiotocograph) Machine on the record.
[4]
The lungs have developed but not to a
desirable extend.
[5]
See
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000
(1) SA 1
(CC) at 36-37 para 61
[6]
The unborn child had already died.
[7]
Had been dead for quite some time.
[8]
The Court
a
quo
had regard to,
inter
alia
,
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC); (2007) 28
ILJ
2405 (CC);
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013) 34
ILJ
2795 (SCA) at 2806 para 25;
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
(2014)
35 ILJ 943 (LAC)
[9]
Section 193(1)(c) of the LRA provides
that: ‘
If
the Labour Court or an arbitrator appointed in terms of
this
Act
finds
that a
dismissal
is
unfair, the Court or the arbitrator
may
-
(c)
order the employer to pay compensation to the
employee
.’
[10]
Section 194 of the LRA sets out the
limits on compensation. Section 194(1) provides:
The
compensation awarded to an
employee
whose
dismissal
is
found to be unfair either because the employer did not prove that
the reason for
dismissal
was
a fair reason relating to the employee's conduct or capacity or the
employer's
operational
requirements
or
the employer did not follow a fair procedure, or both, must be
just
and equitable in all the circumstances
,
but may not be more than the equivalent of 12 months' remuneration
calculated at the
employee's
rate
of
remuneration
on
the date of
dismissal
.
(My emphasis).
[11]
2013 (2) SA 274
(SCA) at 283.
[12]
2003 (6) SA 38
(SCA) at 58-59 paras 47-48.
[13]
2013
(6) SA 224
(SCA) at 234 para 25
[14]
(2014)
35 ILJ 943 (LAC) at 948 para 14.
[15]
Brϋmmer
v Minister for Social Development and Others
2009 (6) SA 323
(CC) at 336 para 32;
Pitelli
v Everton Gardens Projects CC
2010 (5) SA 171
(SCA) at 178 para 34.
[16]
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
(SCA) at 14-15 para 5.
[17]
Obstetrical clinical records for Ms
Philile Hlatshwayo.
[18]
In the statement
Dr Pietz provides his version in respect of his management of the
case of Ms Hlatshwayo. The statement appears
at
page
359-361 Volume 4 of the record.
[19]
(2007) 28 ILJ 2405
(CC).
[20]
'The
all or nothing approach' which was adopted
Johnson
& Johnson (Pty) Ltd v CWIU
(1999)
20 ILJ 89 (LAC)
[1998] 12 BLLR 1209
(LAC) is that either compensation for a
procedural irregularity is granted in terms of a prescribed formula
or no such compensation
would be awarded.
[21]
See
footnote 10.
[22]
(2009) 30
ILJ
2677
(LAC)
at 2689 para 22.
[23]
Old
Mutual Life Assurance Co SA Ltd v Gumbi
2007 (5) SA 552
(SCA); (2007) 28 ILJ 1499 (SCA) at para 4.
[24]
(1994) 15 ILJ
976 at 990J-991A.
[25]
See
CCMA
Guidelines: Misconduct Arbitrations [2012] 2 BALR 109 (CCMA) at page
135 -136
,
as amended in the Government Gazette No: 38573 of 17 March 2015.