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[2009] ZALCD 27
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Health and Other Services Personnel Trade Union of South Africa (HOSPERSA) and Others v Member of the Executive Council Responsible for Health (KwaZulu-Natal) and Others (D844/09) [2009] ZALCD 27 (18 December 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
DURBAN
CASE
NO: D844/09
DATE
:
18 DECEMBER 2009
NOT
REPORTABLE/REPORTABLE
In
the matter between
The
Health and Other Services Personnel
Trade
Union of South Africa (“HOSPERSA”)
First
Applicant
Khulumabakwaziwo
Joseph Ntshangase
Second Applicant
Khombisile
Maureen
Hadebe
Third Applicant
Ncengimpilo
Maureen
Thabethe
Fourth Applicant
Nkosingiphile
Gremmah
Zondo
Fifth Applicant
Ntombifithi
Doris Sangweni
Sixth
Applicant
And
others
and
The
Member of the Executive Council Responsible
For
Health (KwaZulu-Natal)
First Respondent
Dr
S Zungu N.O.
Second
Respondent
D.T
Memela N.O.
Third
Respondent
M.O.
Simelane
N.O.
Fourth Respondent
JUDGMENT
Pillay
D, J
This
is an urgent application for an interim order interdicting the
respondents from changing the terms and conditions of employment
of
the seventh and further applicants and from implementing any steps to
abolish the Simdlangetshe Health Sub-District and certain
other
relief.
The
matter was before the Court on two previous occasions. The parties
have since had an opportunity to exchange full pleadings
and heads of
argument. They have also had an opportunity to attempt to
resolve the dispute through negotiation and mediation.
The
matter presented before the bargaining council twice since the last
adjournment. However, the dispute remains unresolved and
now ripe for
this Court’s determination.
In
the interests of expeditious dispute resolution the Court is ready to
determine the dispute finally. Consequently it is not necessary
to
consider whether the matter is urgent or not, given the ripeness of
the matter for determination.
The
background to the dispute is that initially the parties had engaged
each other in the bargaining council about rationalising
and
restructuring the Simdlangetshe Health Sub-District. They had
reached the point where they had agreed to integrate the
sub-district
with the Itshelejuba Hospital. On the respondent employer’s
version, the parties had agreed to continue engaging
each other about
how the integration would take place. Until that was done, the
employer submits that it undertook not to
transfer or relocate the
employees. On the applicants’ version, the employer had
relocated and transferred employees
contrary to an agreement not to
do so. In the course of the interaction between the parties,
the landlord where the sub-district
office was accommodated refused
to extend the lease on a month-by-month basis and wanted to secure a
three-year lease. The
employer was not willing to commit to a
three-year lease when the integration process was underway. As
a result, the sub-district
had to vacate the premises in October
instead of the end of December as originally planned and agreed with
the applicants.
As a result, the employer did not conclude the
consultative process and left the premises at short notice.
The
applicants have since arranged with the landlord to hold the premises
available to the employer pending this application and
pending
consultation amongst the parties. In the meantime, the employer
has proceeded with the integration of the services
provided by the
sub-district with the hospital.
In
terms of the integrated services, the employer does not rent
alternative premises. It incurs the cost of transporting workers
over
35 kilometres periodically from the area where the sub-district
had been to the hospital. It has relocated supplies
to a
nursing home closer to the point of delivery of health services and
arranged for medical supplies to be properly stored.
The
services, according to the employer, have not been interrupted.
That,
then, is the background to the dispute. The applicants’
concerns are fourfold: The first concern was the distance
of 35
kilometres between where the sub-district had been and the hospital
which the employees and also the community might have
to travel for
services. The second concern was the unilateral change in
conditions of service and effectively the transfer
of the employer
from the sub-district to the hospital without proper consultation.
The third concern as the high-handed manner
in which the employer
effected the changes, in particular, Mr Blomkamp emphasised the
employer’s persistence in proceeding
with the relocation
despite this application being brought. Lastly, the adverse
impact of the relocation on service delivery
remains a concern.
In
the opinion of the Court, the concerns about distance and transport
for the employees have been addressed; the employer is providing
transport for the workers whenever necessary. Furthermore, the
employees do not have to travel every day to the hospital.
Supplies
have been relocated closer to the points where services have to be
rendered for the convenience of employees and the community.
On
the applicants’ own evidence there are district offices closer
to the hospital and employees working closer to the hospital
who are
not adversely affected by the relocation.
In
the circumstances, the Court is satisfied that the applicants’
concerns about transport, which was not their primary concern,
have
been addressed.
Regarding
their second concern about unilateral changes in the terms and
conditions of service, the Court is less concerned with
form than
with the substance of the dispute. The employer has conceded
that it did not complete the consultation process.
To that extent the
Court has given direction as to how the consultation process can be
advanced before the bargaining council,
which will be seized with
conciliating or arbitrating the dispute. Insofar as the functions of
the employees have changed as a
result of the relocation and
integration, that is one of the matters that the parties must
continue to consult on with a view to
placing the employees whose
conditions have changed appropriately within the administration and
remunerated appropriately according
to the posts to which they are
assigned or reassigned.
As
regards the third concern, namely the high-handed manner in which the
employer has conducted itself, the employer was caught
between a rock
and a hard place with the precipitous cancellation of the lease
agreement. If its conduct was at all high-handed,
the
applicants have certainly brought it to heel in this application.
As
regards the last concern which the applicants allege is their primary
concern, namely, the interruption or adverse impact on
service
delivery, the Court has trawled through the applicants’ papers
in search for better information on how service delivery
is impaired
by the relocation. Regrettably, it has not found any, or
sufficient evidence to establish how service delivery
would be
impaired by the relocation and integration of services.
On
a reading of the papers as a whole, the applicants’
preoccupation is with their self-interest rather than the interests
of the community. This is understandable, considering that they
are employees who are keen to protect their interests; however,
from
the perspective of the Court the interests of all concerned must be
taken into account, with primacy given to the community
and the
public interest.
In
these circumstances, the Court finds that the balance of convenience
favours the refusal of the interdict. However, that
is not the
end of the matter. As indicated to the parties the Court intends to
give directions on the further pursuit of this matter.
The
direction of the Court is tendered purely as guidance to the parties
when they ventilate the dispute at the bargaining council.
In
developing the guidance, the Court places the delivery of services at
the forefront of resolving the dispute. To that end,
the
employer is directed to provide the applicants with the following
information:
(a)
The cost of maintaining the status quo;
(b)
The cost of rendering services pursuant to the integration and
relocation;
(c)
Evidence of the positive and negative impact on the delivery of
services;
(d) A
full account of how services are rendered after the integration and
relocation.
This
information and any other information material to resolving the
dispute should be given to the applicants at least 30 days
before the
bargaining council hearing. The applicants are free to verify
the information it receives from the employer; the
Court emphasises
that the concern is the delivery of services to the community. To the
extent that that is impaired, the parties
are directed to engage each
other with a view to improving services.
In
concluding that the balance of convenience favours the dismissal of
the application, the Court takes into account that most of
the
workers are already reporting to the hospital or tendering services
and are supervised via the hospital. It also takes
into account
that the sub-district office was principally an administrative centre
with minimum supervision from the hospital.
The integration now
requires greater supervision from the hospital over the
administrators of the centre and the services they
render to the
community.
The
employees at the sub-district have lost their independence or
autonomy to administer themselves. This may be the underlying
but
true cause of the tensions. The parties should recognise this as a
possible source of the resistance to the changes, rather
than the
impact on service delivery and address it appropriately. In the
circumstances, the
APPLICATION IS
DISMISSED WITH NO ORDER AS TO COSTS.
______________
Pillay
D, J
Date
of Editing: 25 February 2010
Appearances:
For
the Applicant: Adv PJ Blompkamp instructed by L Cain Attorneys
For
the Respondent: Adv JI Henriques instructed by State Attorney
TRANSCRIBER’S
CERTIFICATE
This
is, to the best abilities of the transcriber and proofreader, a true
and correct transcript of the proceedings,
where audible
,
recorded by means of a mechanical recorder in the matter:
HOSPERSA
AND OTHERS v DEPARTMENT OF HEALTH KZN
CASE
NO
:
D844/09
COURT
OF ORIGIN
:
LABOUR COURT DURBAN
TRANSCRIBER
:
I BOTES
DATE
COMPLETED
:
17 FEBRUARY 2010
NO
OF TAPES/CDs
:
1XCD
NO
OF PAGES
:
20
IN
THE LABOUR COURT
KWAZULU-NATAL
DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO
:
D844/09
DATE
:
18 DECEMBER 2010
HOSPERSA
AND OTHERS
versus
DEPARTMENT
OF HEALTH KZN AND OTHERS
BEFORE
THE HONOURABLE MADAM JUSTICE PILLAY
ON
BEHALF OF APPLICANT
:
MR P BLOMKAMP
ON
BEHALF OF RESPONDENT
:
MS HENDRICKS
REPORT ON
RECORDING
Clear recording.