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[2018] ZALAC 6
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Department of Health KZN v Public Servants Association of South Africa and Others (DA4/15) [2018] ZALAC 6; (2018) 39 ILJ 1719 (LAC) (20 March 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA 4/15
In
the matter between:
DEPARTMENT
OF HEALTH KZN
Appellant
and
PUBLIC
SERVANTS ASSOCIATION
OF
SOUTH AFRICA
First Respondent
K
W
PILLAY
Second Respondent
SC
TEMBE
Third Respondent
Delivered:
20 March 2018
Summary:
Review
of arbitration award – commissioner faced with two conflicting
versions as to whether the two employees had handed
over the patient
or abandoned her in the ambulance and gone home -- and whether one of
the employees attended to the patient while
en route to their
destination or both employees sat in the front part of the ambulance
leaving the patient unattended in the patient
compartment –
commissioner finding that employer’s version more probable than
that of employees.
Court
finding that determination of such disputes needs an assessment of
the credibility of the evidence and decision arrived at
on a balance
of probabilities. Held that the question that needs to be asked is
whether the commissioner’s preference of
the appellant
witnesses’ version over that of the employees and their
witnesses is a decision that a reasonable decision-maker
could not
reach – Court finding that the common cause facts and
improbabilities put the employees’ version to doubt.
The events
following the discovery of the patient in the patient compartment of
the ambulance, such as the surprise by the shift
supervisors when the
report was made to them, the immediate telephone calls to the
employees and report to manager are inconsistent
with the conduct of
persons who accepted a handover of the patient to them. Further that
the version that Tembe was not in the
patient compartment with the
patient seems more probable than that of the employees because the
security guard’s statement
of what he observed shortly after
the incident and not being aware of the significance of what he
observed, is corroborated by
the fact that there were no patient’s
stats or data form. Further, he did not inspect the ambulance on
arrival because of
the fact that the two paramedics were sitting in
front as was always the case when the ambulances came to the depot.
Court
finding the commissioner was alive to the nature of the dispute and
assessed the credibility of the witnesses and arrived
at a reasonable
decision – further that the Labour Court failed to analyse the
approach of the commissioner in dealing with
the mutually destructive
versions of the witnesses. Appeal upheld – Labour Court’s
judgment set aside and replaced
with an order dismissing the review
application.
Coram:
Tlaletsi DJP; Ndlovu JA and Murphy AJA
JUDGMENT
TLALETSI
DJP
Introduction
[1]
This
is an appeal to this Court brought with leave of the Labour Court
against a judgment of that court (per Shai AJ) in which it
reviewed
and set aside the award of an arbitrator issued under the auspices of
the Public Health and Social Development Sectoral
Bargaining Council
(the bargaining council).
[2]
The
case concerns the fairness or otherwise of the dismissal of the
second and third respondents by the appellant from its employment.
The second and third respondents are members of the first respondent,
a trade union duly registered in terms of the Labour Relations
Act.
[1]
[3]
At
the time of his dismissal, the second respondent (Pillay) was
employed as an Intermediate Life Support Paramedic and had been
in
the employ of the appellant for approximately 15 years. The third
respondent (Tembe) was employed as a Basic Ambulance Assistant
and
had been employed for approximately four years.
[4]
On
17 February 2009, in the late afternoon, Pillay and Tembe
(collectively, the employees) were requested to take a female patient
from Inkosi Albert Luthuli Central Hospital (IALC Hospital) and
transport her to Murchison Hospital in Port Shepstone. The patient
could not walk and was taken to the ambulance by a wheelchair and
then placed on a stretcher in the patient compartment of the
ambulance.
[5]
Pillay
claimed that as they approached Port Shepstone, he received a
telephone call from his mother who told him that his son was
having
an asthma attack. Instead of proceeding to Murchison Hospital where
the patient was supposed to be taken to, Pillay drove
the ambulance
to their base/depot. As it was already time to knock off, the
employees knocked off from the base without proceeding
to Murchison
Hospital to hand the patient over.
[6]
The
employees were charged with the following three counts of misconduct:
6.1
On
17 February 2009, utilising an ambulance KZN 22958 (AIA) they
uplifted a female patient [NZ], from Inkosi Albert Luthuli Central
Hospital, who was diagnosed with suffering from multiple
ring-enhancing untraceable sessions and neglected the patient alone
in
the patient compartment from Durban to Port Shepstone;
6.2
They
abandoned the patient at Port Shepstone by parking the ambulance with
her inside and knocked off;
6.3
They
permitted one crew mate to sit in front whilst having a patient on
board.
[7]
The
Chairperson of the Disciplinary Inquiry found the employees guilty of
the misconduct charges against them and were summarily
dismissed. The
employees together with their union referred a dispute of unfair
dismissal to the bargaining council. The dispute
was arbitrated by
Commissioner G Gertenbach. The latter issued an award in which the
dismissal of Pillay was held to be fair and
that of Tembe was found
to have been procedurally unfair but substantively fair. However, no
relief was granted to Tembe for the
procedural unfairness of his
dismissal. It is this award which was reviewed and set aside by the
Labour Court and ordered the appellant
to reinstate the employees
retrospectively and pay the costs of the review application.
Factual Matrix
[8]
At
the heart of the dispute, is a factual controversy as to whether the
two employees when transporting the patient from IALC Hospital
in
Durban to Murchison Hospital in Port Shepstone, left the patient
alone in the patient compartment of the ambulance; whether
they
allowed one of the two who was not driving the ambulance to occupy
the front seat of the ambulance leaving the patient unattended
and
finally, whether they abandoned the patient in the ambulance without
making proper handover arrangements for the patient when
they knocked
off.
[9]
The
employees disputed that the patient was left alone, unattended in the
patient compartment of the ambulance. They contended that
Tembe
accompanied the patient in the patient compartment whilst Pillay was
driving. They further disputed that the patient was
abandoned in the
ambulance without proper handover being made.
[10]
The
appellant tendered the evidence of Mr CR Stoffels, Ms Khumalo, Mr
Lushaba and Mr S Kunene. The employees testified and further
tendered
the evidence of Mr O Govender, Mr Rungasamy and MR R.B Mbonwa.
[2]
In light of the fact that the issues on appeal are centred around the
factual findings made by the Commissioner, it shall be apposite
that
the relevant versions of the witnesses be stated with some detail.
[11]
Lushaba
was employed as a security guard manning the gate at the Port
Shepstone base. On 17 February 2009, he commenced his shift
at 18h00.
He noticed an ambulance entering the premises driven by Pillay. Tembe
was sitting next to him on the passenger seat.
He does not usually
check vehicles which enter the premises, only those that exit the
premises.
[12]
Stoffels
is the IRS practitioner with 22 years’ experience. He testified
that on the day in question, he was in the supervisor’s
(Ms
Khumalo) office at 18h00. Pillay walked in at 19h00. He mentioned
that “
there
was a transfer or a re-pat sent to another hospital from Inkosi
Albert Luthuli Hospital”
,
and thereafter left. Stoffels understood Pillay to be saying that
there was a patient to be repatriated from IALC Hospital. He
hoped
that further information about where and when the patient was to be
picked up would be provided in due course through the
normal
channels. Stoffels continued working until about 19h30 when one Hleza
walked into the supervisor’s office and mentioned
that he found
a patient lying on the stretcher in one of the ambulances. Stoffels
called Ms Khumalo and they both went to the ambulance
to investigate.
They found an elderly female patient wearing a napkin. They tried to
get to the “
case
sheet”
of the patient and none could be found. They found a brown envelope
from IALC Hospital indicating that the patient was to go to
Murchison
Hospital.
[13]
Stoffels
testified that they requested the other teams to transport the
patient to her destination. They refused stating that there
was no
case sheet, that there was no handover to them and that they also did
not know what was wrong with the patient. Stoffels
and Khumalo
reported the incident to Mr Kunene, their supervisor. Stoffels phoned
Pillay to enquire about the patient. Pillay mentioned
to him that he
told him about the patient and that he would come back and transport
the patient to Murchison Hospital.
[14]
Stoffels
explained that their policy is that “
a
patient comes first”
and that employees were expected to exceed their working hours to
assist a patient as they would be paid for overtime. He mentioned
that it is a requirement that a patient be properly handed over to
other officials; that failure to do so is regarded as abandonment
of
a patient and that before handover of a patient, the official
concerned must always be with the patient. At handover, the new
crew
must be told what is wrong with the patient; the patient’s
vital signs, what drugs and drips were given to the patient
and what
the final destination of the patient would be. There should also be a
“
case
sheet”
in which specific questions are answered and is to be signed by the
person handing the patient over. He mentioned that this procedure
was
not followed on this occasion and as a result, there was no proper
handover of the patient.
[15]
Ms
Khumalo testified that she is the supervisor at EMRS, Port Shepstone
base and had 16 people who reported to her. On the day of
the
incident, a certain Mr Hleza approached her in the office and
enquired which ambulance he was supposed to use that day. Ms
Khumalo
referred him to a particular ambulance and gave him the required trip
sheet and checklist. Hleza left and returned within
a few minutes and
reported that there was a patient in the ambulance. She told him that
she was not aware of the patient and went
to see for herself. She
found the patient lying on the stretcher. She enquired from Stoffels
about the patient. Stoffels replied
that Pillay did mention that
there was a transfer (of patient) to Murchison Hospital but was not
told that the patient was in the
ambulance. They reported the matter
to Kunene.
[16]
Mr
Kunene was the Operations Manager EMRS. He testified that on 17
February 2009, Stoffels came to his office and informed him about
the
patient discovered by Hleza in the ambulance. He asked Stoffels where
the patient came from, and he replied that he had no
idea, but that
the ambulance was previously used by Pillay and Tembe. Stoffels took
Kunene to the ambulance to show him the patient.
Kunene took
photographs of the patient in the ambulance. He instructed Ms
Khumalo, the shift supervisor who was then assisted by
Stoffels to
arrange for the patient to be taken to Murchison Hospital as
indicated on a note affixed to the stretcher.
[17]
Kunene
testified that he phoned Pillay and requested him to urgently return
to the base. He however failed to reach Tembe. Pillay
arrived after
19h00. Kunene asked him about the patient. He replied that he
received a telephone call from his home reporting that
his child was
sick. He then decided to come to the base to request other crews to
take over the patient. Kunene instructed Pillay
to provide written
reasons why he came to the base with a patient instead of going
straight to Murchison Hospital to handover the
patient. He
immediately told him that his conduct amounted to misconduct and that
disciplinary action will be taken against them.
[18]
The
following day Kunene met the two employees together with Mr Govender,
their supervisor. Tembe was requested to make a written
statement
about the patient. Kunene asked them why they abandoned the patient
en
route
because according to the report he received from the security officer
(Lushaba) who was on duty, both employees occupied the front
part of
the ambulance, which suggests that the patient was left alone in the
patient compartment. Their sitting arrangement led
the security
officer to conclude that the ambulance was not carrying a patient.
Lushaba found it normal because ambulances do not
come to the base
with patients.
[19]
Kunene
testified that according to EMRS operations, when a patient is
transported from a referral institution to the receiving institution,
the employees were not supposed to stop anywhere (except in an
emergency) but to proceed straight to the institution where the
patient should be handed over; that patients are not supposed to come
or be taken to the base. Kunene mentioned that actually,
Pillay
required his permission if he could no longer continue with his
duties and that he (Kunene) was the only one who could authorise
other crews to take over the patient and proceed to the patient’s
destination. He explained that in this instance, the employees
were
supposed to have spoken to their supervisor Govender about their
problems and the control centre was supposed to channel that
call
through to Kunene as the only person who could authorise that the
patient be brought to the base and for the patient to be
taken over
by another crew. He mentioned that neither Govender as the supervisor
nor the control centre knew about Pillay having
a problem of a sick
child. In any case, he stated, as Murchison Hospital was only fifteen
kilometres away, Kunene would have requested
Pillay to send his wife
who is also a paramedic employed at the base to attend to the child
so that Pillay could proceed with his
trip to Murchison Hospital.
According to Kunene, Pillay’s wife was not even on duty at the
time and was expected to be at
home.
[20]
Kunene
testified that there should have been “
a
patient data book”
which must be signed by the person receiving the patient to take
further responsibility of caring for the patient. In this instance,
the patient was abandoned as she was not supposed to be left alone
even for a minute. He mentioned that contrary to standard practice,
there was no patient data book or form that was filled to indicate
that the patient was under the employees’ care. Furthermore,
the trip sheet which should have indicated that they were conveying a
patient from one point to another, only indicated that they
were from
Durban to Port Shepstone. Kunene mentioned further that if one of the
employees was driving the ambulance, the other
one was supposed to be
sitting in the patient compartment with the patient at all times.
[21]
In
response to a question why there was no video footage to show who
drove the ambulance when it entered the premises, Kunene explained
that the video cameras installed do not show the premises but only
the entrance to the control centre which is a restricted area.
The
entrance to the premises is not covered by the video cameras.
He mentioned that the only way that Tembe could prove that
he was
seated at the patient compartment, is for him to produce “
a
patient data form”
which he was expected to complete whilst sitting with the patient in
the patient compartment of the ambulance. He disputed that
there was
a practice to bring patients to the base. According to him, the
practice was that in cases where a crew needed assistance,
they
communicated with the control centre through the “radio”
and assistance would be brought to the crew instead of
the crew
coming to the base.
[22]
Mr
Deeda Govender testified on behalf of the respondents. He was the
shop steward that represented Pillay at the disciplinary enquiry.
His
evidence related to the procedural fairness part of the dispute. He
testified that he received some of the documents he had
requested on
the day of the hearing. His request that the inquiry be postponed to
enable him to request further documents was refused.
The matter
proceeded with the appellant tendering evidence to support the
charges against the employees. At the conclusion of the
appellant’s
case, he requested absolution from the instance. When his application
was refused he concluded that the chairperson
of the inquiry was
biased and he took Pillay and they walked out of the inquiry. The
inquiry was continued in their absence but
in the presence of Tembe.
[23]
Pillay
testified that they had taken a patient to IALC Hospital. Upon
leaving the hospital they were informed by a doctor that there
was a
“
re-pat”
patient. He understood that to mean that there is a patient that was
discharged from the central hospital to be taken to a secondary
hospital. He mentioned that the doctor told him that the patient was
in the “
discharge
room”
,
that she had been discharged quite early and she missed the shuttle
bus to Durban. The doctor advised him further that the patient
was
stable, did not require any oxygen, IV Line or drugs
en
route
from IALC Hospital.
[24]
Pillay
mentioned that in compliance with their procedural requirements, he
personally took the patient’s vital signs, i.e.
checked her
blood pressure, oxygen saturation, sugar level and the patient proved
to be in a totally stable condition. He recorded
all the information
in the specific form provided for that. Before they could start their
trip Tembe told him that he was “
fatigued”
and tired and requested him to drive the ambulance and that he would
do the patient care. Pillay agreed because he was satisfied
that the
patient did not require any equipment
en
route
or IV Line drugs or oxygen and that Tembe was competent in handling a
basic patient with his basic life skills. Tembe sat in the
patient
component of the ambulance with the patient lying on the stretcher.
Pillay drove the ambulance.
[25]
Pillay
mentioned that as they reached the area of the toll gate
en
route
to Port Shepstone, he received a telephone call from his mother
reporting that his one year and two months old son was unwell.
Pillay
informed Tembe through the window about his situation and that he was
changing course and going to the base to handover
the patient. The
son was suffering from asthma. On arrival at the base, he found a lot
of crews at the entrance as it was time
for shifts to change. As he
entered the base, he came across a certain Mr D B Pillay and informed
him of the patient in the ambulance.
He drove further on and parked
the ambulance at the entrance of the crew room. He filled in the
required information in their relevant
trip sheet, namely their
vehicle movements from the time they left the base until their return
as well as the odometer readings
on the vehicle and the reason for
their trip. The trip sheet together with “
patient
data”
and fuel slips were to be handed over to the station officer.
[26]
As
he walked to the crew room, he came across Stoffels. He spoke to him
briefly and advised him about the patient in the vehicle.
He
proceeded to the shift Senior Officer’s office and handed over
all the relevant documentation to Ms Khumalo. He also advised
her
that there is a patient on board the vehicle to be taken to Murchison
Hospital. He left the office with Stoffels who had been
in Ms
Khumalo’s office with him. He again told Stoffels about the
patient and the two walked to the ambulance. They reached
the patient
compartment. Tembe was still inside the ambulance with the patient.
Pillay took his personal items from the ambulance
and returned to the
crew room to sign off the register. He left Stoffels standing at the
sliding door of the patient component
of the ambulance. He mentioned
that as he walked with Stoffels to the vehicle he asked Stoffels
which crew was to take over the
ambulance so that he could personally
inform them as well about the patient. Stoffels told him not to worry
because he had switched
the crews and he will make the necessary
arrangements for a crew to take that patient over. As he signed off
the register he once
again informed Ms Khumalo about the patient at
the back of the ambulance and thereafter left for home.
[27]
Pillay
confirmed that upon his arrival at home, he received a call from
Stoffels. He wanted to know why he did not tell him about
the
patient. He replied that he told him and Ms Khumalo several times
about the patient. He informed him that he was willing to
return to
the base to personally convey the patient to Murchison Hospital.
Stoffels responded that it was not a problem, he would
sort it out.
About five minutes thereafter Kunene contacted him and instructed him
to return to the base to write a statement as
to why he abandoned the
patient. This was despite his explanation about his sick child. His
child was distressed and he gave him
oral medication and returned to
the base where he prepared a report as instructed. He thereafter
returned home to further attend
to his son. He mentioned that
although it was not a norm to bring patients to the base it had
happened several times.
[28]
Gordon
Rungasamy testified on behalf of the respondents. He was the
Emergency Care Practitioner Intermediate with 19 years’
service
at the appellant. He had on occasions acted in the supervisory
position. He explained that a proper handover of a patient
entailed
the completion of a form pertaining to that patient and hand same
over to the official receiving the patient. The recipient
should sign
the “
stats”
form in acknowledgement of receipt of the patient. If a handover was
done at the base which was not a common practice, the driver
handed
over the stats form containing the patient’s information to the
shift supervisor. The shift supervisor did not normally
sign the
documents but verbally acknowledged receipt of the patient and
thereafter instructed the new crew to convey the patient
to the
relevant hospital. According to Rungasamy, he had not personally
brought any patient to the base but had on occasions accepted
patients brought to the base by other officials. He mentioned that it
was not necessary to advise the control centre about the
patient to
be brought to the base for as long as the shift supervisor was aware
of the situation.
[29]
It
transpired during cross-examination that Rungasamy was also charged
for abandoning a patient and was dismissed. He referred an
alleged
unfair dismissal dispute and was awaiting an arbitration. He also
mentioned that he was present in the office when Pillay
handed over
the “stats” form to Ms Khumalo who also verbally
acknowledged receipt of the patient. He mentioned that
Pillay did
inform Ms Khumalo that the patient was in the ambulance. He did not
see Stoffels in the office. He could have been there
as there were
many people in the office who had their backs against him.
[30]
Tembe’s
evidence was largely similar to that of Pillay about the events re-
relating to the request at IALC Hospital up until
they arrived at the
base.
[31]
Tembe
testified that upon arrival at the base, Pillay took a patient stats
form and trip sheet and left for the supervisor’s
office. He
met Stoffels coming out of the same office. They had a short
conversation and both went into the office. After some
time, the two
came out of the office and walked towards the ambulance. Stoffels
entered the patient compartment, greeted him and
said: “
Mr
Pillay says this is the patient you were telling about, then there is
no problem”
.
Stoffels thereafter told them that they could leave and they left. He
mentioned that when Stoffels said that they could leave
he was
sitting on the “bunk” inside the ambulance. Tembe went to
the supervisor’s office and signed the register
and left for
home. It was already knock off time when they arrived at the base. It
is then that he received a call from Mr Kunene
at a later stage and
called him to the base to prepare a written statement. He insisted
that they did not abandon the patient because
when they left, the
patient was with Stoffels inside the ambulance. He said that Stoffels
was telling a lie when he said that he
did not see the patient.
[32]
Mr
R.B Mbonwa testified that on the day of the incident he was at the
base. He saw the ambulance arriving driven by Pillay. After
a few
moments, Tembe got out of the patient compartment, stretched his legs
and greeted him. He was at the time standing with Mr
Lushaba. The
following day he was asked by Tembe to write a statement about the
incident.
The
Arbitration Award
[33]
The
commissioner in analysing the evidence recognised that he was faced
with two mutually destructive versions of what transpired
on 17
February 2009. Relevant to the determination of the dispute, the
commissioner held that:
‘
Having
due regard to the credibility of the witness and all the principles
set out above, I find more probable than not that the
Respondent’s
version is the correct version, for the following reasons. The
Respondent’s case is dependent on the evidence
of the following
witnesses, all of whom I found to be credible and reliable witnesses
who dealt with their evidence clinically
and objectively. There is
also no evidence before me to suggest that they held any grudges
against the employees. I accept Khumalo’s
evidence that she
referred Hleza to a particular vehicle (which was the ambulance that
had been used by the employees), that he
returned within a few
minutes and told her that when he checked the vehicle he had found a
patient inside the ambulance, that she
told him that she was not
aware of the patient and she accompanied him to the ambulance, that
she saw a patient lying on a stretcher
inside the vehicle. Although
she is hard of hearing, I am satisfied that this had no influence on
what she said she had heard and
what she was told on the night in
question, by particularly, Pillay. At the time when she inspected the
ambulance, both employees
had already left the workplace and her
testimony is paramount to charge (C) which relates to the abandonment
of the patient. She
also testified that she was not advised that the
patient was in the back of the ambulance. The Respondent’s
second witness
Lushaba’s evidence related to the question of
whether or not Tembe was sitting in front of the ambulance with
Pillay. He
similarly was a good witness and in the absence of any
ulterior motive which he might have had to frame the employees or any
other
gainsaying evidence, I have no reason not to accept his
evidence. The Respondent’s third witness, Stoffels was an
excellent
witness and I accept his evidence that he found an elderly
lady who was wearing a napkin in the back of the ambulance and that
he did not find any case sheet, but found a brown envelope with a
note from Albert Luthuli Hospital which confirmed that the patient
was to be transferred to Murchison Hospital. He was adamant that he
was not told about the patient in the back of the ambulance.
The
Respondent’s fourth witness, Kunene was a good witness, but his
assertiveness unfortunately bordered on arrogance. Be
that as it may,
his testimony that he and Stoffels had found a patient lying on a
stretcher in the patient compartment of the ambulance
is also
accepted. However, his evidence was not that he had not been advised
by either Pillay or Tembe about the patient, but that
Stoffels had
told him that he (Stoffels) had not been advised of the patient.
Although this was hearsay evidence I am prepared
to accept it, as it
is supported by the evidence of the other witness’.
[34]
The
commissioner rejected the version of the employees as false. He held
that:
‘
On a
balance of probabilities I find that the employees and their witness
were not telling the truth and in order to put a credible
version of
what transpired on the day in question before me they wore the
metaphorical masks. I find that the Respondent discharged
the onus by
credible evidence that its version is the more probable and
acceptable version […] and that the employees were
correctly
found guilty of the offences recorded in paragraph 3 above’.
[35]
Regarding
sanction, the commissioner noted that the appellant imposed the
sanction of dismissal because of the severity of the offences
and the
potential, harm which could have been caused by the employees’
conduct; that long service is a compelling mitigating
factor but long
service does not necessarily come to the assistance of an employee
when serious offences as in this case are committed
and that because
of the seriousness of the offences, the trust relationship had been
breached.
[36]
The
commissioner held further that it was neither unfair nor unreasonable
for the appellant to expect its employees to act with
the utmost care
and diligence when exercising their duties; that additional training
and instruction would not have resulted in
improving the employees’
performance and that although dismissal has a severe and negative
impact on the employees, it must
be weighed up against the reasons
for their dismissal having regard to the employment environment, the
seriousness of the offences
and in particular the employer’s
prerogative to set rules and standards. He reasoned further that
although Rungasamy
testified that he was found guilty of a similar
offence, which in itself does not establish a defence of
inconsistency to sway
his decision in favour of the employees.
[37]
The
commissioner rejected Pillay’s claim that the chairperson of
the disciplinary enquiry was biased as baseless. Regarding
Tembe, the
commissioner found that he was procedurally unfairly dismissed
because it was common cause that he was not served with
any
documentation before being subjected to a disciplinary enquiry.
However, the seriousness of the offences negated any right
to
compensation he might have had. In conclusion, the commissioner was
satisfied that dismissal was an appropriate sanction under
the
circumstances.
The Review
[38]
The
Respondents sought to review the award of the commissioner on the
grounds that the award was not reasonable; that he failed
to apply
his mind; he misconducted himself; he committed a gross irregularity
and exceeded his powers by acting unreasonably or
unjustifiably. The
respondents further sought that the award be substituted with an
order that the dismissals were unfair and that
the employees be
retrospectively reinstated.
[39]
The
Labour Court remarked
inter
alia,
that
the dispute is about whether Pillay told Stoffels that the patient he
was talking about was in the ambulance. The court
a
quo
found
that Stoffels confirmed that Pillay spoke to him while they were in
the presence of Ms Khumalo, whereas Ms Khumalo denied
that she was
ever in the presence of both Pillay and Stoffels on that day. This
aspect was found by the court
a
quo
to be a material contradiction at the heart of charge two and
concluded that Pillay did inform Stoffels and Ms Khumalo about the
patient in the ambulance and further that they were given the
relevant documents pertaining to the patient. The employees should
therefore not have been found guilty of the second charge. The court
a
quo
held
further, in the alternative, that there may have been a
miscommunication between Stoffels and Pillay, that is, Stoffels
misunderstood
what Pillay told him.
[40]
Regarding
the charge of abandoning a patient in the ambulance, the court
a
quo
held
that the act of abandoning denotes an intentional act and since there
was a miscommunication between the two as to what was
communicated
and as to what was understood by the recipient of the report, it
cannot be said that the employees abandoned the patient.
The
commissioner’s finding was therefore found to be unreasonable.
[41]
As
regards charges 1 and 3, the court
a
quo
held
that the commissioner failed to give reasons for rejecting the
evidence of the employees other than to say that they had reason
to
wear a mask, and as such, he failed to apply his mind to the evidence
before him. The conviction on the two charges was found
to be a
conclusion that a reasonable commissioner could not reach. The court
a
quo
concluded
that even if it was to agree with the convictions on all charges as
the commissioner did, the sanction was too harsh,
taking into account
Pillay’s thirty (30) years’ service and that he had only
one previous warning unrelated to this
matter; Tembe’s four
years’ service with a clean record and the fact that the other
employee was given a final written
warning for the same or similar
offences; and finally that there is evidence of miscommunication
between Stoffels and Pillay.
The appeal
[42]
In
this Court, the appellant, in essence, defended the findings of the
commissioner. Counsel for the appellant made the following
submissions: that the commissioner was faced with two conflicting
versions on the two major factual issues giving rise to the
misconduct, the first being whether the two employees had handed the
patient over or had left her in the ambulance and gone home;
the
second being whether on the trip while they were conveying the
patient one attended to her or whether they both sat in the
front
part of the ambulance leaving the patient unattended in the patient
compartment; that the decision of the commissioner rejecting
the
employees’ version and accepting that of the appellant after
consideration of the evidence tendered, was a reasonable
decision.
[43]
It
was contended that the court
a
quo
failed to apply the proper test on review, misconstrued and ignored
vital aspects of the evidence and erroneously came to the conclusion
that the award was one that no reasonable arbitrator could make and
incorrectly reviewed and set aside the award.
[44]
On
behalf of the respondents, counsel submitted that the commissioner
failed to apply his mind to the evidence before him, misapplied
the
applicable legal principles and tests in adjudicating the issues,
including disputes of fact resulting in an unreasonable and
unsustainable award.
[45]
Counsel
for the respondents further contended
inter
alia,
that
despite the fact that Stoffels testified that abandoning a patient
was a “
defined
offence”
there
was no evidence led by the appellant to demonstrate what the charge
of abandonment comprised namely, whether an intentional
leaving of
the patient alternatively a negligent leaving of the patient; that
there was no evidence presented that the employees
intentionally left
the patient without effecting any handover.
[46]
It
was further contended that the commissioner failed to adjudicate the
probabilities of the matter, failed to properly consider
the evidence
before him and resolve the material disputes of fact and the
substantive dispute before him.
[47]
It
is settled law that the test on review which is based on
reasonableness is whether the decision made by the commissioner is
one that a reasonable decision-maker could not have made. In
Head
of Department of Education v Mofokeng and Others
[3]
this Court held that:
‘
[30]
The failure by an arbitrator to apply his or her mind to issues which
are material to the determination of a case will usually
be an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in Herholdt v Nedbank Ltd (Congress of SA
Trade Unions as Amicus
Curiae) [(2013) 34 ILJ 2795 (SCA)] and this court
in Gold Fields Mining SA (Pty) Ltd
(Kloof Gold Mine) v
Commission for Conciliation, Mediation & Arbitration &
others [(2014) 35 ILJ 943 (LAC)];
have held that
before such an irregularity will result in the setting aside of the
award, it must in addition reveal a misconception
of the true enquiry
or result in an unreasonable outcome.
“
[31]
The determination of whether a decision is unreasonable in its result
is an exercise inherently dependent on variable considerations
and
circumstantial factors. A finding of unreasonableness usually implies
that some other ground is present, either latently or
comprising
manifest unlawfulness. Accordingly, the process of judicial review on
grounds of unreasonableness often entails examination
of
inter-related questions of rationality, lawfulness and
proportionality, pertaining to the purpose, basis, reasoning or
effect
of the decision, corresponding to the scrutiny envisioned in
the distinctive review grounds developed casuistically at common law,
now codified and mostly specified in s 6 of the Promotion of
Administrative Justice Act (PAJA); such as failing to apply the mind,
taking into account irrelevant considerations, ignoring relevant
considerations, acting for an ulterior purpose, in bad faith,
arbitrarily or capriciously, etc. The court must nonetheless still
consider whether, apart from the flawed reasons of or any
irregularity
by the arbitrator, the result could be reasonably
reached in the light of the issues and the evidence.
Moreover,
judges of the Labour Court should keep in mind that it is not only
the reasonableness of the outcome which is subject
to scrutiny. As
the SCA held in Herholdt, the arbitrator must not misconceive
the enquiry or undertake the enquiry in a misconceived
manner. There
must be a fair trial of the issues.
[32]
However, sight may not be lost of the intention of the legislature to
restrict the scope of review when it enacted s 145 of
the LRA,
confining review to 'defects' as defined in s 145(2) being
misconduct, gross irregularity, exceeding powers and improperly
obtaining the award. Review is not permissible on the same grounds
that apply under PAJA. Mere errors of fact or law may not be
enough
to vitiate the award. Something more is required.
To repeat: flaws
in the reasoning of the arbitrator, evidenced in the failure to apply
the mind, reliance on irrelevant considerations
or the ignoring of
material factors etc. must be assessed with the purpose of
establishing whether the arbitrator has undertaken
the wrong enquiry,
undertaken the enquiry in the wrong manner or arrived at an
unreasonable result. Lapses in lawfulness, latent
or patent
irregularities and instances of dialectical unreasonableness should
be of such an order (singularly or cumulatively)
as to result in a
misconceived enquiry or a decision which no reasonable decision maker
could reach on all the material that was
before him or her.
[33]
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the enquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator's conception of the enquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted, it will ex
hypothesi be material to the determination of the dispute. A material
error of this order would
point to at least a prima facie
unreasonable result.
The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant factors informing
the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable equilibrium
has been
struck in accordance with the objects of the LRA.
Provided
the right question was asked and answered by the arbitrator, a wrong
answer will not necessarily be unreasonable.
By the same token, an
irregularity or error material to the determination of the dispute
may constitute a misconception of the
nature of the enquiry so as to
lead to no fair trial of the issues, with the result that the award
may be set aside on that ground
alone. The arbitrator however must be
shown to have diverted from the correct path in the conduct of the
arbitration and as a result
failed to address the question raised for
determination.’ (
My
emphasis
)
[48]
It
is apparent from the record that the employees understood what the
charges of misconduct against them were. They at no stage
challenged
the nature and the basis upon which they were charged. Their defence
was at all times that they were not guilty of the
misconduct charges
because they complied with what was required of them. It is therefore
important that the matter be assessed
on that basis and as was
presented before the commissioner.
[49]
The
commissioner correctly identified that he was confronted with
diametrically opposed versions of the parties and had to establish
which version was more probable, bearing in mind the
onus
resting
on the appellant to establish the commission of the misconduct on a
balance of probabilities. In
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
,
[4]
it was held:
‘
[5] On the central
issue, as to what the parties actually decided, there are two
irreconcilable versions. So too on a number of
peripheral areas of
dispute which may have
a
bearing on the
probabilities. The technique generally employed by courts in
resolving factual disputes of this nature may conveniently
be
summarised as follows. 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.
As
to
(a), the court's finding on the credibility of
a
particular witness
will depend on its impression about the veracity of the witness. That
in turn will depend on
a
variety of subsidiary
factors, not necessarily in order of importance, such as (i) the
witness's
candour
and demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other
witnesses testifying
about the same incident or events. As to (b), a witness's reliability
will depend, apart from the factors mentioned
under (a)(ii), (iv) and
(v) above, on (i) the opportunities he had to experience or observe
the event in question and (ii) the
quality, integrity and
independence of his recall thereof. As to (c), this necessitates an
analysis and evaluation of the probability
or improbability of each
party’s version on each of the disputed issues. In the light of
its assessment of (a), (b) and (c)
the court will then, as
a
final step, determine
whether the party burdened with the onus of proof has
succeeded in
discharging it. The hard case, which will doubtless be the rare one,
occurs when
a
court's
credibility findings compel it in one direction and its evaluation of
the general probabilities in another. The more convincing
the former,
the less convincing will be the latter. But
when all factors are
equipoised probabilities prevail."
[50]
In
my view, the commissioner was alive to what was expected of him. He
considered the versions of the respective witnesses and gave
detailed
reasons why he preferred the version of the appellant’s
witnesses over that of the respondents.
Therefore,
the question that needs to be asked and answered is whether his
preference of the appellant witnesses’ version
over that of the
employees and their witnesses is a decision that a reasonable
decision-maker could not reach.
It
needs to be mentioned that the court
a
quo
did not undertake any analysis of the approach of the commissioner in
dealing with much mutually destructive versions of the witnesses.
Neither did it fault or approve of the findings made by the
commissioner other than on two aspects that will be discussed below
and which I find immaterial.
[51]
The
first factual dispute relates to whether the patient was properly
handed over to Stoffels and Khumalo. It is common cause that
taking a
patient to the base was an unusual practice. It is also a coincidence
that the patient was taken to the base at the time
that the employees
were to knock off. Be that as it may, the employees’ version is
that Pillay told Stoffels about the patient
on arrival and the two
walked to the office where he informed Ms Khumalo about the patient
who is in the ambulance and handed over
the patient’s stats
form and other documents to her. He again told Ms Khumalo about the
patient when he went to sign off
the register in order for him to go
home. This aspect is corroborated by Rungamsamy who testified that he
was present in the office
when Pillay informed her about the patient
in the ambulance and handed over the “stats form” to Ms
Khumalo who verbally
acknowledged receipt of the patient. It is
however surprising that Rungamsamy is unable to confirm if Stoffels
was also in the
office at the time. It is further surprising that
Pillay did not mention that Ms Khumalo acknowledged receipt of the
patient Rungasamy
claimed. On the respondents’ version Ms
Khumalo was told and was fully aware of the patient in the ambulance
and was in possession
of the papers pertaining to the patient.
Similarly, that Stoffels was told of the patient and even entered the
patient compartment
of the ambulance, saw and identified the patient
he was told about by Pillay, promised to arrange her conveyance to
Murchison Hospital
and gave them permission to knock off. The fact
that Ms Khumalo had a hearing problem is therefore irrelevant as the
version of
the employees is that she was aware and acknowledged the
patient and the stats form. Her acknowledgement of the patient means
she
heard what she was told about the patient.
[52]
The
common cause facts and improbabilities put the employees’
version to doubt. The events following the discovery of the
patient
in the patient compartment of the ambulance, such as the surprise by
Ms khumalo and Stoffels when Hleza made a report to
them, the
immediate telephone calls to the employees and report to Kunene are
inconsistent with the conduct of persons who accepted
a handover of
the patient to them. If the version of the employees is to be
accepted, it means that Ms Khumalo and Stoffels are
the ones who
abandoned the patient in the ambulance, something which I find
improbable. All these aspects were not considered by
the court
a
quo
.
[53]
This
evidence that Ms Khumalo was told about the patient and that she
acknowledged the handover of the patient, as well as the fact
that
Stoffels went into the ambulance, saw the patient and was left inside
the ambulance with the patient is a fabrication which
was rightly
rejected as false by the commissioner. It is surprising that it is
only Tembe who testified that Stoffels entered the
patient
compartment, identified the patient as the one that Pillay told him
about and told them to knock off and he will make arrangements
for
the patient to be transported. These important elements of a proper
handover were not mentioned by Pillay. Logic dictates that
he would
have found them important to mention because they supported his
version that he did a proper handover of the patient.
There is also
no explanation why these details of the handover were not disclosed
to Kunene and Stoffels when they were confronted
with the allegation
of abandoning patients in the ambulance. The rejection of the
employees’ version on this aspect is not
a decision that a
reasonable decision-maker could not reach.
[54]
The
second controversy is whether Tembe sat with the patient in the
patient compartment of the ambulance. The version that Tembe
was not
in the patient compartment with the patient seems more probable than
that of the employees. Lushaba who made a statement
of what he
observed shortly after the incident and not being aware of the
significance of what he observed, is corroborated by
the fact that
there were no patient stats or data form. Further, he did not inspect
the ambulance on arrival because of the fact
that the two paramedics
were sitting in front as was always the case when the ambulances came
to the depot. They would normally
not carry patients and there would
be no need for the other paramedic to sit at the back.
[55]
It
is reasonable to conclude that if the two employees had accepted that
the patient was simply someone who had missed a shuttle
bus, leaving
her alone in the back would have been probable. It would not make
sense for Pillay to take the patient’s vital
signs and assess
her if the doctor told him that the patient was stable, required no
further medical attention and was merely to
be transported as she
missed her bus. If this evidence is accepted, then it is probable
that the patient was left alone in the
patient compartment
en
route
to
the depot as she needed no assistance. The employees’ version
is clearly a fabrication intended to cover all the basics
of
criticism. This aspect also makes Lushaba’s version more
probable. On the other hand, Mbonwa’s evidence is suspect.
He
is an ambulance attendant who happened to have been standing at the
gate and observed detailed things that should have been
observed by
Lushaba who was employed as a security guard posted at the gate.
Mbonwa was even off duty at the time. His version
was not even put to
Lushaba.
[56]
It
is noteworthy that the written statement of Tembe, dated 17 February
2009, on the day of the incident is very brief and runs
into only two
paragraphs. What he stated in the statement is simply that they were
advised by the doctor at IALC Hospital that
there is a patient that
needed to go to Murchison Hospital, that they took the patient over
from the nursing staff and when they
were on their way to Port
Shepstone his crew mate said to him that “
we
gonna handover patient to the night crew and & I listened to him
because he is high qualified than me “(
sic).
There is no mention of the vital signs of the patient being checked
by Pillay and that he offered the patient his sandwich.
He did not
mention that Pillay told him that his child was sick and that is the
reason for going to the base. These are the fundamental
details one
would have expected him to include since he was responding to being
accused of abandoning the patient. It was only
in the subsequent
statement written on the 18 February 2009 that he disputed that the
patient was left alone in the back of the
ambulance. His initial
statement has a ring of truth and is supported by the probabilities
of the events.
[57]
The
respondent contended that the appellant should have produced the
video or camera footage from the IALC Hospital, the tollgate
and the
Port Shepstone base to verify the sitting arrangement in the
ambulance and that since the appellant bore the
onus
to
prove that the employees were indeed travelling together in the front
of the vehicle, it failed to secure this evidence or to
marshal it.
Indeed, the video footage if it existed would have assisted. However,
regarding the base, Kunene testified that the
cameras only covered
the entrance to the Control Centre as it is a restricted area and not
necessarily the entrance to the premises.
Kunene relied on the
evidence of Lushaba and the objective fact that had someone sat with
the patient as the employees claimed,
there would have been a patient
stats or data form which would have been completed during the course
of the trip. It is such a
coincidence that this document does not
exist although the employees claim that the document was completed
and was handed over
to Ms Khumalo, which is disputed. I have already
found that the appellant’s version is probable and preferable
on this aspect
as opposed to that of the employees.
[58]
To
the extent that the court
a
quo
held
that the dispute is about whether Pillay told Stoffels that the
patient he was talking about was in the ambulance it erred.
The real
question is rather whether there was a proper handover of the patient
to either Stoffels or Ms Khumalo. Because of the
error of the
question posed by the court
a
quo
,
its inquiry was restricted to whether Pillay made mention of a
patient to be repatriated and that there was a miscommunication.
With
respect, the court
a
quo
overlooked
the fact that the employees’ version excluded any possible
miscommunication because their case was simply that
there was a
proper handover, that Stoffels even came to the ambulance and on
Tembe’s version, accepted handover and the responsibility
over
the patient going forward and released the employees to go. The
alleged contradiction on the testimony of Ms Khumalo and Stoffels
that the two were in the office with Pillay is, in my view,
immaterial if one has regard to the defence of the employees.
[59]
The
court
a
quo’s
conclusion
that the employees were wrongly found guilty of abandoning the
patient is based on the reasoning that since there was
a
miscommunication between Stoffels and Pillay, there was no intention
to abandon the patient. The findings that there was no
miscommunication, that the employees’ version is not truthful
on this aspect, the fact that the patient was found alone in
the
ambulance, and the conclusion that the patient was abandoned by the
employees are not conclusions that a reasonable decision-maker
could
not reach.
[60]
Counsel
for the respondents contended that there was no evidence led that the
relationship of trust had broken down or that the
employees could no
longer be trusted to do their jobs of caring for patients. She
submitted that given the evidence before the
commissioner and the
fact that in all probability there was simply, at worst, a
misunderstanding between Stoffels and Pillay, there
was no
justification for the dismissal of the employees.
[61]
The
commissioner took into account all the relevant factors in concluding
that the sanction imposed by the appellant was fair. He
considered
the importance of the rule breached, potential harm caused by the
employees’ conduct, whether additional training
and instruction
was necessary, the effect of the dismissal on the employees and the
reason why the appellant imposed a sanction
of dismissal. He
considered the fact that Rungamsamy testified that he was found
guilty of a similar offence and concluded that
this in itself does
not establish a defence of inconsistency to sway his decision in
favour of the employees. In my view, the conclusion
reached by the
commissioner with regard to sanction is not a decision that a
reasonable decision-maker could not reach. One may
add that the
conduct of the employees is unacceptable and unprofessional. They
abandoned a vulnerable sick elderly woman in an
ambulance so that
they could knock off. The treatment the patient received is inhuman
and degrading. The issue is not necessarily
limited to whether trust
relationship has been broken but regard must be had of the fact that
their conduct compromised a patient’s
rights to dignity and
proper health care.
[62]
In
the result, the appeal should succeed and the order of the Labour
Court must be set aside.
[63]
In
my view, it would be in accordance with the requirements of the law
and fairness that each party pay its costs.
[64]
Ndlovu
JA
was
part of the court that heard the appeal and was the nominated Judge
to write the judgment on behalf of the Court. He unfortunately
passed
away before he could produce the judgment. The lengthy delay in
having the judgment released is regretted and we tender
our apology
to the parties.
[65]
In
the result, the following order is made:
a)
The
appeal succeeds and the order of the Labour Court is set aside and
replaced with the following:
“
The
application for Review is dismissed with no order as to costs”.
b)
There
is no order as to costs.
__________________
L.P Tlaletsi
Deputy Judge President
Labour
Appeal Court of South Africa
Murphy
AJA concurs in the judgment of Tlaletsi DJP.
APPEARANCES:
FOR
THE APPELLANT:
M. Pillemer SC
Instructed by Mdledle
Incorporated,
Durban
FOR
THE RESPONDENTS: C. A
Nel
Instructed by Macgregor
Erasmus Attorneys,
Durban
[1]
Labour Relations Act 66 of 1995
.
[2]
The record of the arbitration
consists of the bundle of documents that was used and referred to in
the hearing, the transcribed
evidence of most of the witnesses, the
commissioner’s notes of the first three witnesses and the
award of the commissioner
containing the summary of the evidence.
Parties agreed that the record is sufficient for the determination
of the appeal as was
the case in the court
a
quo
.
[3]
Head of the Department of
Education v Mofokeng and Others
[2015]
1 BLLR 50
(LAC) at paras 30-33.
[4]
Stellenbosh Farmers’ Winery
Group Ltd and Another v Martell et Cie and Others
2003
(1) SA 11
(SCA) at para 5.