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[2011] ZALCCT 66
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Department of Health v DENOSA obo Baartman and Others (C428/2010) [2011] ZALCCT 66 (10 October 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Not
Reportable
Case
no: C428/2010
In
the matter between:
DEPARTMENT
OF HEALTH
............................................................................
Applicant
and
DENOSA
OBO BAARTMAN
.................................................................
First
Respondent
ARTHI
SINGH N.O
.............................................................................
Second
Respondent
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
...............................................
Third
Respondent
Date
of Hearing: 19 May 2011
Date
of Judgment: 10 October 2011
JUDGMENT
VAN
VOORE AJ
1.
This is an application in terms of section 145 of the Labour
Relations Act (the LRA)
1
to review and set aside an arbitration award of the second respondent
(the commissioner) handed down in arbitration proceedings
under the
auspices of the Public Health and Social Development Sectoral
Bargaining Council (the bargaining council). The application
is
opposed by the Democratic Nurses Organisation of South Africa
(Denosa) on behalf of Ms Baartman.
2.
Ms Baartman is a professional nurse employed by the Department of
Health
(Western
Cape), the Applicant. Baartman has been employed by the applicant
since 1988. Baartman is a professional nurse currently
employed at
the Kraaifontein Community Health Centre. A dispute had arisen
between Ms Baartman and the Applicant. The dispute was
referred to
arbitration and the commissioner made an arbitration award. The
dispute concerned,
inter
alia
,
the interpretation and application of Resolution 3 of 2007, being a
collective agreement on the implementation of an ‘Occupational
Specific Dispensation for Nurses (the OSD)’. In the arbitration
award the Commissioner found,
inter
alia
,
that:
2.1. The Applicant had
not correctly interpreted and applied the OSD for
nurses
and that Baartman should be ‘translated’ to the post of
Assistant Manager: Nursing with effect from 1 July 2007.
2.2.
The answering affidavit in this matter was filed two days late and
Denosa on behalf of Baartman has applied for condonation.
The degree
of lateness is very short. The circumstances that lead to the late
filing of the answering affidavit are fully canvassed
and explained.
A reasonable explanation has been offered. In my view the Applicant
has not been unduly prejudiced by the fact that
the answering
affidavit was filed two days late. Denosa on behalf of Baartman does
have some prospects of success and the case
is clearly one of
importance. In the circumstances condonation is granted.
3.
In determining the dispute referred to arbitration no oral evidence
was lead. The Applicant and Denosa on behalf of Baartman
agreed on a
set of material and common cause facts and the commissioner made an
arbitration award on the basis of those facts.
In this regard the
arbitration award specifically records the following:
“
2 No evidence
was lead. The parties informed me that there was no dispute of fact
and it was agreed that the parties would submit
written Heads of
Argument in writing. This was done. However, it was evident from the
Heads of Argument that there was a dispute
on the facts. I
accordingly requested that the matter be re-scheduled for a hearing.
A second hearing was scheduled for the 11
March 2010. The matter was
discussed in my presence and the parties reached an agreement on the
facts.
3 The parties were
requested to provide more detail argument. This was done and the last
argument was received on 3 April 2010.
The parties also submitted
bundles of documents to me.
Background
5 The Applicant is a
professional nurse employed by the Respondent at the Kraaifontein
Community Health Centre. The parties are
in agreement that as at 30
June 2007, the Applicant performed the functions of a manager in that
she was the overall nurse in charge
at the centre and that she
supervised more than one unit.
6 The nursing
component of the facility is divided into 3 separate units, namely
trauma, anti-retroviral unit and maternity. Each
of these units is
headed by a unit manager who is a nurse. All these unit managers who
were translated to the position operational
manager. The three
operational managers report to the applicant, who in turn reports to
the facility manager.
7 The Applicant was
translated to the position of the Operational Manager Nursing Primary
Health Care with effect from 1 July 2007.
8 It is the
Applicant’s case that she ought to have been translated to the
position of Assistant Manager Nursing (Primary
Health Care) given the
functions that she performed at the time of the translation.
9 It is common cause
that the Applicant falls under the specialty stream as envisaged in
clause 3.1.3 of resolution 3 of 2007. “
Review
Grounds
4.
The applicant’s review grounds are that the commissioner
committed misconduct in terms of section 145 of the LRA in that
she
had incorrectly decided that Baartman had performed the functions of
a manager and that she was the “overall nurse in
charge”
at the Community Health Centre and that the commissioner exceeded her
powers in terms of section 145 in making a
finding that Baartman
should be “translated” to the position of Assistant
Manager :Nursing, even though this post was
not in existence.
5.
However the arbitration award specifically records (paragraph 2) that
Denosa on behalf of Baartman and the Applicant reached
an agreement
on the facts. Those facts are described in paragraphs 5 to 9,
inter
alia
, of the arbitration award. The commissioner’s
arbitration award rests on those agreed facts. Notwithstanding the
various
attempts by the Applicant, it is bound by the facts that it
agreed, in the commissioner’s presence, to be common cause and
it cannot now escape the ordinary consequences of such an agreement
as to common cause facts. In particular one of the common cause
facts
recorded by the commissioner is that Baartman “performed the
functions of a manager in that she was the overall nurse
in charge at
the Centre and that she supervised more than one unit”
(paragraph 5 of the arbitration award). It is impermissible,
on
review, for a party to seek to undo an agreed set of facts. Those
facts served before the commissioner and both the Applicant
and
Denosa on behalf of Baartman are bound by those facts.
6.
In analyzing the common cause facts and the submissions on behalf of
the Applicant and Baartman the commissioner in the arbitration
award
specifically records the following:
“
24There is no
dispute about whether or not the Applicant qualifies for translation.
The only issue in dispute is whether or not
she was translated
correctly. This issue goes to both the interpretation and the
application of the agreement.
…
26 The purpose of
the OSD is to attract and retain nurses in the clinical nursing
profession. Clearly the aim is to improve the
position of nurses who
qualify for translation. There is logic and merit in Lose’s
argument that it cannot be correct that
the Applicant now finds
herself in an inferior position in relation to her subordinates. The
fact that the salary level of the
Applicant has improved after
translation, does not in itself render the translation correct. Logic
and common sense should dictate
that it is unfair for the Applicant
to be translated to the same position as that of her subordinates. In
other words the Applicant’s
position as a whole, after
translation, has not become more attractive. In any event, the
Respondent does not dispute the fact
that the Applicant is entitled
to a position superior to that of her subordinates.
…
27. … I see
no reason why the Applicant cannot be translated to the position of
Assistant Manager: Nursing at another facility.”
7.
In light of the common cause facts, which the Applicant cannot now
undo, the finding that Baartman “performed the functions
of a
Manager and that she was the overall nurse in charge at the centre
and supervised more than one unit” is properly supported
by the
material before the commissioner. In the circumstances, there is no
proper basis for the Applicant’s contention that
the
commissioner incorrectly decided that Baartman performed the
functions of a manager and that she was the overall nurse in charge
at the Community Health Centre. In the circumstances that ground of
review must fail.
8.
The commissioner awarded that Baartman should be translated into the
position of “Assistant Manager :Nursing”. During
the
arbitration proceedings the Applicant had advanced no factual or
other basis that would stand in the way of this finding made
by the
commissioner. The commissioner considered the Applicant’s
arguments or submissions including its contentions that
the position
of Assistant Manager does not exist at the Kraaifontein facility. At
paragraph 27 of the arbitration award, the commissioner
concluded
that:
“
The agreement
does not limit translation to existing posts at the particular
establishment where the nurse is employed. Furthermore,
I have
perused relevant Directives from the Minister which in terms of the
collective agreement, provide direction on the manner
of
implementation of the OSD.
…
The fact that the
Kraaifontein facility is not ready to implement the OSD correctly,
does not have to be end of the matter. The
Department of Health has
under its wing many facilities and institutions. I see no reason why
the Applicant cannot be translated
to the position of Assistant
Manager: Nursing at another facility.”
9.
The facts before the commissioner support this conclusion.
10.
Under our law the test on review is not whether a Court, faced with
the facts and circumstances that served before an arbitrating
commissioner, would come to the same or different conclusion but
rather, whether the commissioner’s findings and conclusions
falls within a range of reasonableness.
In
the matter of
Sil Farming CC t/a Wigwam v CCMA
2
Van Niekerk AJ held that:
“
A
commissioner arrives at a decision which no reasonable decision maker
could reach if the decision is unsupported by any evidence,
or by
evidence that is insufficient to reasonably justify the decision
arrived at or where the decision-maker ignores uncontradicted
evidence.”
Further,
in the matter of
Bestel v Astral Operations Ltd
3
the Court held that:
“
Although the
judgment in
Sidumo,
supra
,
superceded
the
test for review as contained in the decision of this Court in
Carephone (Pty) Ltd v Marcus
1999
(3)
SA 384
(LC) [
also
reported at
[1998] 11 BLLR 1093
(LAC) – Ed] at paragraph 37,
the following dictum in the latter judgment is helpful in order to
illustrate the nature of
the test:
‘
Is there a
rational objective basis justifying the conclusion made by the
administrative decision-maker between the material properly
available
to him and the conclusion he or she eventually arrived at..’”
11.
In my view the commissioner’s assessment of the evidence and
the conclusions
and
findings reached by the commissioner are supported by the facts that
served before the arbitration proceedings. The commissioner’s
award including her findings as to Baartman’s ‘translation’
to the position of Assistant Manager: Nursing at
another facility
fall within a range of reasonable decisions. In particular this
finding of the commissioner does not involve any
usurping of the
powers of the Applicant. In the circumstances it is impermissible for
this Court on review to interfere with the
arbitration award.
12.
Accordingly I make the following Order:
(a)
the review application is dismissed;
(b)
theApplicant is ordered to pay the first respondent’s costs.
___________________
VAN
VOORE AJ
Appearances:
For
the Applicant: Adv. R. Nyman instructed by the State Attorney
For
the Respondents: Adv. GA Leslie instructed by Chennells Albertyn
1
66
of 1995.
2
unreported
LC judgment
3
[2011]
2 BLLR 129
(LAC) at para 17.