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[2008] ZALCJHB 87
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HOSPERSA and Another v MEC for Health, Gauteng Provincial Government (J542/2008) [2008] ZALCJHB 87 (22 April 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
CASE
NUMBER: J542/2008
In
the matter between:
HOSPERSA
1
ST
APPLICANT
DR
A
KAPLAN
2
ND
APPLICANT
And
THE
MEC FOR HEALTH, GAUTENG
PROVINCIAL
GOVERNMENT
RESPONDENT
JUDGMENT
AC
BASSON, J
[1]
The First Applicant in this matter is the Health and Other Service
Personnel Trade Union of South Africa (“HOSPERSA”)
on
behalf of Dr A Kaplan (“Kaplan” – the Second
Applicant) who is employed as a principal medical officer at
the
Hillbrow Community Centre. The Centre falls under the jurisdiction
and control of the Respondent.
[2]
In terms of the Notice of Motion, the Applicants apply for an order
that Kaplan be paid her full remuneration for the months
of February
and March 2008 and for such further months as she may be employed.
[3]
This matter came before my learned sister Acting Judge De Swart on 4
April 2008. I have asked for a transcript of the proceedings
before
De Swart, AJ. The matter became opposed on that day. It is clear from
that transcript that the learned Judge was of the
view that the
matter was not so urgent that it had to be dealt with on that day.
However, she concluded that she was nonetheless
persuaded that the
matter was of sufficient urgency that it needs to be dealt with
within a week. The matter was thereafter postponed
to 10 April 2008
for hearing. The Respondent was ordered to file its answering
affidavit by 17H00 on Monday 7 April 2008 and the
Applicants was
ordered to file its replying affidavit, if any, by 13H00 on Wednesday
9 April 2008.
[4]
In light of the fact that my learned sister has decided and disposed
of the issue or urgency, the only issue that remains to
be decided by
this Court is the merits of the application. Before I turn to the
merits of this application, it must first be decided
whether or not
the Court should have regard to the answering affidavit filed on
behalf of the Respondent. The Respondent’s
answering affidavit
was only filed on 9 April 2008 which is approximately one and a half
days late. The late filing of the affidavit
was not accompanied by a
condonation application nor did the Respondent formally apply for
condonation on the day of the hearing.
Mr. Khoza on behalf of the
Respondent tried to tender an explanation for the late filing from
the bar which is unacceptable. In
light of the fact that no proper
explanation for the delay was properly before this Court and in light
of the fact that the Respondent
had defied a court order in respect
of the filing of their papers, the Court proceeded to decide the
matter on the basis of the
Applicants’ papers only.
[5]
The Applicant has been employed at the Hilbrow Community Health
Centre from February 2006. She states in her founding papers
that she
was transferred to the Hilbrow Centre from Johannesburg General
Hospital. She was informed that her working conditions
would be
exactly the same at the Hilbrow Centre. It, however, transpired that
that was not the case and that she was expected to
see between 60 –
70 patients per day which means that she has approximately one
patient every six to seven minutes on any
given day. Kaplan considers
this requirement to be an unacceptable working condition because it
does not enable her as a doctor
to render a proper service to her
patients. It should also be pointed out that Kaplan suffers from
poliomyelitis and post polka
syndrome and as a result suffers
disabilities in her right leg. She, however, stresses that this
disability has never prevented
her from working and seeing a
reasonable number of patients per day. Kaplan developed a very
acrimonious relationship with Dr S
Moosa who is the head of Family
Medicine at Hilbrow who
inter alia
said to her that “
you
are disabled you have to resign
”. She was also unreasonably
threatened with disciplinary action in respect of her failure to see
more than 25 patients per
day. On 10 November 2006 Kaplan lodged a
grievance both in respect of her unilateral transfer to the Hilbrow
Centre, harassment
and the poor working conditions at the Hilbrow
Centre. In March 1007 Kaplan was removed from all work in the clinic
until the issue
of her seeing merely 25 patients per day had been
resolved. She was then instructed to report to Dr Mossa’s
office where
he and a Dr Malope provided her with “tasks”.
The effect of this instruction was to remove her from all clinical
work
and to require her to do clerical work. HOSPERSA lodged a
complaint about this incident. This complaint yielded limited success
in a meeting on 27 March 2007 when it was agreed that Kaplan will be
allocated clinical work like any other doctor and that she
was no
longer required to work as Dr Moosa’s general assistant. Kaplan
received a final written warning on 28 August 2007
for not seeing
what her superiors considered to be a sufficient number of patients
per day. On 2 October 2007 Kaplan was accused
of being a racist by Dr
Malope who shouted at her: “
You do not like to treat black
patients, you are a racist, you turn patients away, you are treating
patients with disrespect, you
are an old lady, I am sick and tired of
you, something is going to happen to you.
” Dr Malope then
assaulted Kaplan by hitting her on her face and hands. Malope then
picked up a baumanometer and waived it
to her face and again shouted
at her that “
something is going to happen to you”.
The
incident was reported to Dr Malope’s senior and a charge was
laid at the South African Police.
[6]
On 9 October 2007 Kaplan was placed on a precautionary transfer and
was told that she would be transferred to Lilian Ngoyi Community
Health Centre. The reasons for the precautionary transfer were as
follows:
“
It is alleged
that you have committed a serious offence; and it is feared that you
may repeat the offence. It is believed that your
presence at the
Hilbrow Community Centre may jeopardize the investigation into the
alleged misconduct.”
[7]
Kaplan was not told what the serious offence was that she had
allegedly committed or why it was feared that she would repeat
the
offence or why her presence would jeopardize the investigation into
the alleged misconduct. She further denies that there was
any
bona
fide
or legitimate reason to place her on a precautionary
transfer in respect of misconduct. Kaplan, however, continued to work
for
the remainder of the month at Hilbrow Centre and was even
required to work overtime.
[8]
Kaplan was informed by the Respondent that she was afforded an
opportunity to make representations as to why she should not
be
transferred (I will return to this letter hereinbelow). Kaplan made
such representations. In brief she points out in her letter
that
there was no basis for the precautionary transfer. I have already
referred to the fact that Kaplan had raised a grievance.
She has also
referred a dispute about an unfair labour practice to the Bargaining
Council for adjudication. She further denies
that she is guilty of
any misconduct. Kaplan further points out that Lilian Ngoyi was a
remote location far from the workplace
where she is currently
employed and as a disabled person it is extremely difficult and
perilous for her to commute to Lilian Ngoyi.
No response was received
from the Respondent in respect of her representations. In this regard
it was argued on behalf of Kaplan
that her transfer did not in fact
take effect in light of the fact that the Respondent never
communicated a final decision in respect
of her transfer after she
had submitted her representations. Put differently, the Respondent
has never provided Kaplan with a clear
statement that the transfer
had indeed taken effect; when it had so taken effect; and/or on what
factual and legal basis this decision
was taken.
[9]
Further representations were submitted to the Respondent on 7
November 2007. In this letter it is specifically stated that Kaplan
is not refusing to be transferred from Hilbrow, but that the transfer
to Lilian Ngoyi will served to create severe health difficulties
for
her. A letter from her orthopedic surgeon dated 6 November 2007 is
also attached. Her doctor clearly states in this letter
that the
transfer, which will involve a 40 kilometers travel, will be
detrimental to her health and disabilities. No response was
received
from the Respondent.
[10]
Kaplan states that she is “
very willing and desirous to work
for the respondent at other institutions that are within similar
distance
” from her home as Hilbrow. More in particular, she
is willing to work at Helen Joseph Hospital where there is a post
available.
On 12 December 2007 Kaplan received a phone call from Mr
Maluleke who is an HR Official from Human Resources of the
Respondent.
He informed her that he was sorry for all that she had
been put thorough and that she should go on leave and upon her return
she
must report at Helen Joseph. However, on the next day Maluleke
informed Kaplan that the Labour Department of the Respondent did
not
agree to her reporting for duty at Helen Joseph.
[11]
The precautionary transfer was apparently made in terms of clause 7.2
of the Disciplinary Code and Procedure of the Public
Service. In
terms of this procedure and if an employee is transferred as a
precautionary measure, the employer must hold a disciplinary
hearing
within a month or 60 days depending on the complexity of the matter
and the length of the investigation. In terms of this
clause the
Respondent was therefore required to hold a hearing by not later than
9 December 2007. This did not happen and only
on 6 February 2008
Kaplan was served with a notice to attend a hearing which is
approximately two months outside this time period.
The charges relate
to the fact that Kaplan performs poorly in that she does not see the
required 60 patients per day. She is also
charged with failing to
carry out a lawful order in that she did not go and work at Lilian
Ngoyi when instructed to do so.
Salary
[12]
Until 15 February 2008, Kaplan always received her monthly salary
through the bank on the 15
th
of each month. On 15 February
2008, without any notice whatsoever, the Respondent reversed payment
of Kaplan’s salary. On
15 March 2008 her salary was again not
paid. I have already pointed out that Kaplan was not given any prior
notice nor was she
afforded an opportunity to show cause why her
salary should not be cancelled.
[13]
Kaplan concedes that she did not report for work at Lilian Ngoyi but
reiterates that this was because of her severe health
difficulties
that driving to work to this remote clinic will pose to her health.
Kaplan did inform her employer of this fact but
received no response
and had in fact elected to ignore her representations in respect of
her health. It is also further important
to point out that although
Kaplan did not report for work at Lilian Ngoyi, she did in fact
report at Hilbrow every day and signed
the attendance register.
[14]
It was submitted on behalf of Kaplan that, to the extent that there
has been non-rendition of services by herself to the Respondent,
it
was not occasioned by any default on her part and that the Respondent
therefore remained liable to pay her. It was further submitted
that
the default leading to the non-rendition of services was occasioned
entirely by the Respondent by unilaterally, unlawfully
and unfairly
and without reasonable justification sought to transfer her to a
place where, to the knowledge of the Respondent,
it was impossible
for her to render her services. As a result the Respondent acted
unlawfully and unfairly by failing to pay her
salary in circumstances
where Kaplan has to the best of her ability and to the knowledge of
the Respondent attempted to render
services to the Respondent,
demonstrated that she was willing and able to render her services to
the Respondent and also demonstrated
her willingness to render her
services at a workplace that is closer to her place of residence. It
was further submitted that the
Respondent had acted in breach of
section 32(3)
of the
Basic Conditions of Employment Act 75 of 1997
in
terms of which an employer must pay remuneration not later than 7
days after the completion of the period for which the remuneration
is
payable.
[15]
It is clear from the papers that Kaplan has at all times expressed
and demonstrated her ability and willingness to render her
services
to the Respondent. This she did through letters and the fact that she
had physically reported at the Hilbrow clinic.
[16]
The dispute in respect of Kaplan’s transfer to Lilian Ngoyi is
currently the subject of arbitration (the unfair labour
practice
dispute). It is therefore not for this Court to express an opinion in
respect of the merits of that dispute. This Court
is confined to the
dispute in respect of the non-payment of Kaplan’s salary in
terms of which the Respondent has unilaterally
and without any
attempt to afford Kaplan the
audi alteram partem
withdrawn her
salary.
[17]
An employee has a common law right to be paid her salary. If through
the default on the part of the employee his or her services
are not
rendered, the wage must be diminished in proportion to the time
during which the services where not rendered (see
Boyd v
Stuttaford
1910 AD 101
, 104-105). The position is, however,
different where the employee’s inability to perform her duties
is her employer’s
doing. See in this regard
Myers v SA
Railways & Harbours
1924 AD 85
where the Court held as
follows at 90C:
“
If however, it
was due to his employer that he had been unable to perform his work,
then he would be entitled to be paid notwithstanding
that no service
had been rendered by him
.”
In
terms of the common law, the unilateral suspension of an employee
also does not relieve the employer of the duty to pay the employee.
It is also accepted in our labour law that an employer may not
suspend an employee without pay and may only do so it they have
contracted to that effect, either when the contract was first entered
into or if a collective agreement provides for such penalty,
or when
the employee is faced with dismissal and agrees to unpaid suspension
as an alternative penalty (see Grogan
Workplace Law
2007 at p.
103).
Evaluation
of the merits
[18]
There are various reasons why Kaplan is entitled to the relief sought
in the Notice of Motion: (i) Firstly, the papers support
a conclusion
that a final decision to transfer Kaplan has not been taken.
Furthermore, in light of the fact that she has tendered
her services
at her workplace, she is entitled to her salary. (ii) In the
alternative and secondly, the contract of employment
is still capable
of being performed despite the fact that there is a dispute in
respect of the transfer. (iii) Thirdly, a unilateral
withdrawal of
salary is in breach of the Basic Conditions of Employment Act 75 of
1977. (iv) Fourthly, the Respondent unilaterally
withdrew Kaplan’s
salary without affording her the
audi alteram partem
and
without any prior notice whatsoever. I will now briefly return to
each of these considerations.
Was
there a transfer?
[19]
I have already pointed out that it appears from the papers that a
final decision to transfer Kaplan to Lilian Ngoyi has in
fact not
been taken with the result that Kaplan is still posted at the Hilbrow
Clinic where she has consistently tendered her services
throughout
this dispute. This conclusion is supported by the fact that the
Respondent has never communicated any response to Kaplan’s
representations in respect of her transfer. In coming to this
conclusion, regard was had to the letter dated 9 October 2007 in
terms of which Kaplan was informed that she is to be transferred. In
this letter Kaplan is specifically informed that she is afforded
an
opportunity to respond to the possible transfer before (“prior
to”) a final decision is taken:
“
3. Prior to the
implementation of the decision you are, however, afforded an
opportunity to respond to the possible precautionary
transfer and
indicate why, in your opinion, you should not be transferred.
Such written response should reach Dr. Manitshana’s
office not
later than Thursday the 11
th
October 2007 at
16H00.
Should you fail to
respond to this letter it will be assumed that you do not wish to
provide any input and you will be transferred
as follows with
immediate effect: …”
[20]
I have already pointed out that Kaplan did made representations and
that she even submitted a letter from her doctor as to
why she could
not be transferred. The Respondent has elected not to respond to her
representations with the result that it would
appear that a final
decision to transfer has not been taken. In this respect I again
refer to paragraph 3 of the said letter which
makes it clear that a
decision to transfer will only be implemented after Kaplan has
responded to that letter. The Respondent did
not respond to her
representations and thus it can be assumed that a final decision to
transfer has not been taken. If regard is
had to the disciplinary
code and procedures for the public service it is clear from paragraph
2 subparagraph 2.4(c) that written
reasons will be given for a
decision taken. No final decision in writing has been communicated to
Kaplan after her written representations.
Instead the Respondent has
elected to unilaterally withdraw Kaplan’s salary.
Continued
enforceability of the contract
[21]
In the particular circumstances of this case, the facts show that,
notwithstanding the problems posed by the transfer to Lillian
Ngoyi
and the dispute currently before the Bargaining Council, the contract
is still capable of performance and the contract thus
falls to be
enforced. It is clear from the facts that Kaplan is willing and able
to render services at Helen Joseph and at Hillbrow.
Kaplan has in
fact reported at Hilbrow and therefore tendered her services to the
Respondent.
[22]
In so far as Kaplan’s was able to work at Helen Joseph, the
Respondent, at least as late as on 12 December 2007 via Mr.
Maluleke
of HR showed that the Respondent was able to favourably consider her
request.
Basic
Conditions of Employment Act 75 of 1977
[23]
There is no basis in law why Kapan’s right to her salary and/or
benefits should be interfered with if regard is had to
s 32(1) of
Basic Conditions of Employment Act 75 of 1977. I have already
referred to the fact that Kaplan had at all times tendered
her
services and expressed a wilingess to perform her duties.
Audi
alteram partem
[24]
Kaplan was not forewarned nor afforded an opportunity to be heard
prior to the unilateral withdrawal of her salary. In fact,
her salary
for February 2008 was electronically paid into her bank account only
to be reversed. As a result, Kaplan was not afforded
an opportunity
to make representations to the Respondent why her salary should not
be withdrawn and what hardship will follow as
a result of the
non-payment of her salary. This is unfair and smacks of
highhandedness. It is a fundamental principle that an employee
should
and must be afforded the
audi alteram partem
before a decision
is taken which adversely affects the rights of an employee. It is
likewise a fundamental principle in our labour
law that an employee
cannot be dismissed without affording the employee the
audi
alteram partem
and it is only in highly exceptional circumstances
that this Court will accept a departure from this principle. Where an
employee
is suspended, the same principle applies. I can see no
reason why this principle should not be applied before suspending or
withdrawing
an employee’s salary. Kaplan sets out in her papers
the hardship that followed the non-payment of her salary: She is the
mother of an adopted child who is three years old. She has to pay her
daughters crèche fees, medical aid and other basic
cost of
living expenses.
[25]
In
Muller & Others v Chairman of the Ministers' Council: House
of Representatives & Others
(1991) 12
ILJ
761 (C) at
766 the Court endorsed the right to a hearing before suspension in
the following terms. Although these comments were
made in the context
of a suspension, the same principles apply in my view in respect of
the right to be heard before withdrawing
an employee’s salary.
“
The question,
as we see it, is whether the person involved is entitled to be heard
not on the ultimate question of whether the charge
is or is not made
out but on the question under consideration at that time, namely,
whether or not he should be suspended as an
interim step . . . .
Plainly, the decision to suspend the appellant was a statutory
decision which adversely affects
[his] rights and
legitimate expectations. It is likely to have profound emotional,
social and financial effects on him.': '[He]
was entitled to be heard
on the question whether he should be suspended without salary during
that interim period. It may well
be that there is little that the
appellant could have said or done that was likely to influence the
decision on that question.
It may well be that the decision would
have been the same if he had been given the opportunity of being
heard. The fact remains,
however, that he was given no opportunity
whatsoever of being heard on the question whether he should be
suspended without salary.”
(At
773-4
The
Court in this case emhasised the implications of a suspension of a
public service officer without pay. Such suspension unquestionably
constitutes a serious disruption of an employee’s rights. I am
in agreement with the submission on behalf of Kaplan that
the
implications of being deprived of one's pay are equally obvious. It
was fundamentally unfair to have deprived Kaplan of her
salary in the
circumstances particularly without having afforded her an opportunity
to make representations as to why her salary
should not be withdrawn.
[26]
Lastly, I should also point out that Kaplan has, since this dispute
was referred to this Court, been informed that the precautionary
transfer has been uplifted with immediate effect. No reasons are
given for the summary upliftment of the transfer. This is an
extraordinary change in events in light of the fact that Kaplan was
initially informed that her presence at Hilbrow would prejudice
the
investigation. It is further extraordinary since it appears from the
papers that a final decision in respect of Kaplan’s
transfer in
the first place has, in any event, not been taken.
[27]
In light of the aforegoing I am satisfied that the Applicant is
entitled to the relief sought in the Notice of Motion. In respect
of
costs it was argued on behalf of the Respondent that costs should not
be awarded. I can see no reason why the Respondent should
not be
ordered to pay the costs in circumstances where an employee had to
resort to bringing an application to put a stop to the
high-handed
and unilateral conduct of her employer. The Respondent is, however,
only ordered to pay the costs in respect of the
4
th
and
11
th
of April 2008 since the postponement on 10 April 2008
was occasioned by the fact that the Court experienced a power
failure.
[28]
In the event the following order is made:
1.
The Respondent is ordered to pay Dr A Kaplan her full remuneration
for the months of February 2008 and March 2008 and for such further
months as she may be employed.
2.
The Respondent is ordered to pay the Applicant’s costs
but only
in respect of the proceedings held on 4 and 11 April 2008.
__________________________
AC
BASSON, J
Date
of hearing
:
10 and 11 April 2008
Date
of Judgement:
22 April 2008
For
the Applicant
:
Adv
Buirski instructed by Fairbridges
For
the Respondent:
Adv
Khoza instructed by the State Attorney