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[2011] ZALCD 44
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Badat and Others v Department of Health KZN (D119/05) [2011] ZALCD 44 (31 August 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT DURBAN
CASE
NO: D119/05
In
the matter between:
DRS
AY BADAT & OTHERS
First
Applicant
DR
J
HURST Second
Applicant
DR
J MOODLEY
Third
Applicant
and
THE
DEPARTMENT OF HEALTH
KZN Respondent
Date
of hearing
:
5 April
2011
Date
of judgment :
31 August 2011
JUDGMENT
SHAI
AJ
Introduction
[1]
This matter is brought in terms of Section 77 of the Basic Conditions
of Employment (BCEA).
[1]
It pertains to a claim in terms of which the applicants claim that a
commuted overtime for non-clinical work they received
was a term and
condition of their employment and that respondent’s
discontinuance of the said commuted overtime amounted
to a unilateral
change of their terms and conditions of employment and breach of
employment contract. The applicants therefore
seek an order in
the following terms:
-
for the unilateral change to terms and conditions of employment to
be
declared unlawful;
-
for the respondent to be ordered to revert to the terms and
conditions
to the status
quo
with effect from 1 January 2003
with respect to commuted overtime;
-
for the respondent to pay all outstanding amounts in respect of the
commuted overtime to the applicants from 1 January 2003 to the
finalisation of this matter and interest thereon at the rate of
15,5%
;
-
costs and or alternative relief.
[2]
The respondent is opposing the claim.
[3]
At the beginning of the hearing, the applicants applied for an
amendment of paragraph 1 of their statement of claim to read
as
follows:
1.
PARTIES
1.1
The Applicants are:-
1.1.1 First
Applicant, Doctor A.Y. Badat, an adult male currently employed as a
Hospital Manager at the King George
V Jubilee Hospital, 75 Stanley
Copley Drive, Sydenham, Durban;
1.1.2 Second
Applicant, Doctor J Hurst, an adult female currently employed as a
Hospital Manager at Addington Hospital,
Erskine Terrace, South Beach,
Durban.
1.1.3
Third Applicant, Doctor J. Moodley, an adult male currently employed
as a Hospital Manager at Clairwood Hospital,
1 Higginson Highway,
Mobeni.The application was granted. Further that the
applicants’ representative applied for the
withdrawal of the
second applicant’s claim as she had settled with the
respondent. The application was also granted
safe for purposes
of determination of costs until the withdrawal of the claim.
Background
facts
[4]
Prior to being translated into Hospital Managers, the applicants were
employed as Chief Medical Superintendents at various hospitals
in
Kwazulu-Natal. The applicants allege that it was a term and
condition of employment that they be paid an allowance called
commuted overtime for non-clinical work undertaken. They
contend further that the overtime was paid monthly to compensate
them
for the large volume of non-clinical work they would need to attend
to in their positions as Chief Medical Superintendents.
They
enjoyed this term and condition for approximately ten years.
The applicants allege that they were granted this overtime
on the
basis that it would be for non-clinical work. This is however
denied by the respondent, who contends that:
(i)
this was not a term of their contract as it was implied that such an
allowance could
fall away in as much as:
-
it was subject to operational requirements in particular the need for
overtime and overall changes in the management structure such that
overtime was no longer necessary, alternatively, was required
to be
limited.
(ii)
it was a condition of this payment that overtime be for clinical or
medical work and it
could not lawfully be granted for administration
and managerial work.
[5]
Prior to 1 May 1997, this payment was called a professional
allowance, and called commuted overtime from 1 May 1997.
[6]
The applicants allege further that this payment constituted a fixed
monthly payment based on average of 8 hours per week for
purposes of
non-clinical work, including after hours administration and
managerial work.
[7]
During or late 2002, the respondent advised that this commuted
overtime would be stopped and that in the future, should the
applicants wish to obtain any further payments, they would be
required to undertake clinical work. The applicants duly
objected
to this. At the same time, a process was introduced
whereby the applicants’ posts were to be translated into one of
Hospital Managers.
[8]
Applicants further allege that on 1 January 2002, the respondent
unilaterally directed that the applicants could only work commuted
overtime for actual clinical work. The respondent denies this
and stated the following:
-
Changes to limited commuted overtime strictly to clinical work was
necessary after sweeping necessary changes to the management of major
hospitals which
inter alia
allowed the appointment of
non-medical professionals to head major hospitals necessitated
inter
alia
by the chronic shortage of medical personnel in the public
health service, and necessity to allow hospital to operate more
independently
of the provincial department
inter alia
to
perform more management functions at hospital level.
-
Owing to changes, it would not have been appropriate as a matter of
industrial relations to allow medical doctors who headed public
hospitals to continue to receive an additional effective bonus
on
their salaries while non-medical hospital managers who performed the
same function did not.
-
The said changes did not occur unilaterally.
-
That documents on which commuted overtime had been applied for by the
applicant’s had always explicitly stated that it should be for
clinical work only.
[9]
When the changes outlined above were implemented, the applicants
referred the matter to the Public Health and Welfare Sectorial
Bargaining Council whereupon the arbitrator issued an award to the
effect that the said Bargaining Council did not have jurisdiction
to
deal with the matter on account that such did not constitute an
unfair labour practice: provision of benefits.
[10]
It is on this basis that the applicant approached this Court in terms
of section 77 of the BCEA.
[11]
The issues to be decided by the Court are listed as follows:
“
(1)
Whether the payment of commuted overtime for non clinical
work was
part of the terms and conditions of employment of the applicants.
(2)
In the event of the above Honourable Court finding
that such payment
as aforesaid was a term and condition of the applicants’
contracts of employer whether;
(2.1)
the respondent unilaterally changed the terms and conditions of the
applicants’ contracts of
employment;
(2.2)
Such unilateral change was unlawful, alternatively;
(2.3)
the respondent was justified as alleged in paragraph 2.8 herein;
(3)
Whether there was consultation between the applicants and
the
respondent prior to the alleged change to the commuted overtime on
the 1
st
February 2003.
(4)
Whether the applicants have tendered their service for overtime.
(5)
In the event of the Honourable Court finding that the applicants
had
tendered their services for overtime, whether;
(5.1)
Such overtime had to be applied for, or
(5.2)
The respondent was entitled to refuse or limit overtime based on;
(5.2.1)
operational requirements in particular, the need for overtime and /
or overall changes in management structures;
(5.2.2)
overtime being paid for clinical or medical work and not for
administrative and managerial work.
(6)
What actual amount the applicants are entitled
to by way of
overtime.”
The
evidence
[12]
Dr. Moodley, the third applicant testified as follows:
[13]
He is a retired pensioner having retired on 30 June 2010. At
the time of his retirement, he was a hospital manager of
Clairwood
Hospital. Currently he is re-employed on a contract basis as a
Senior Medical Officer in the Maternity Unit of
Osindisweni
Hospital. His career started in 1973 as an intern and was first
appointed as a Medical Superintendent on 1 April
1987, as a Senior
Medical Superintendent in 1990 and as a Chief Medical Superintendent
at Clairwood Hospital in 1992. To
be appointed to these
positions, he needed MBCHB degree or Medical degree and
administrative experience. As a Chief Medical
Superintendent,
he was accountable and responsible for the management of health care
and all the supporting roles that the institution
(hospital) was
supposed to deliver. Accountable to him were heads of
divisions, such as nursing, medical, finance and systems.
[14]
He testified further that his position of Chief Medical
Superintendent was translated into that one of a Hospital Manager in
2003. In his opinion, the duties of Chief Medical
Superintendent were the same. In so far as commuted overtime is
concerned, it arose as a result of the chronic overtime worked by
doctors that was due to shortage of staff. When he joined
the
respondent in 1973, it was paid as non-pensionable allowance and in
1975 the terminology changed to supplementary remuneration
non-pensionable. The principle of the commuted overtime at that
stage was if one worked overtime, it was broken into the
average
number of hours worked and it was made up of four groups, first one
being 0 – 4 hours, the second being 4 –
8 hours, the
third being 8 to 12 hours and the fourth being 12 to 20 hours.
[2]
[15]
When this commuted overtime system was formulated, as the Chief
Medical Superintendent he was allocated 8 hours, being the
average
number of hours that a Chief Medical Superintendent worked above the
normal hours. In February 2002, the concept
of total salary
packages came about for Chief Medical Superintendents who now
belonged to the Senior Management Service echelon
of the Public
Service. This introduced the concept of total salary packages
for Chief Medical Superintendents. When
this happened the
commuted overtime was left untouched.
[16]
In his view, because the overtime for Chief Medical Superintendent
was fixed and it was paid to them, even if they were not
on duty
either due to vocational leave or sick leave
etcetera
,
it was a separate additional to their remuneration. Further,
that the overtime was paid for additional duties not for additional
clinical duties. He had to apply for the overtime in the form
of a separate contract entered with the respondent.
[17]
In his opinion, circular No. 62 of 1996 in so far as it refers to
Medical/Dental Superintendent and Senior Medical/Dental
Superintendent doing large number of overtime and having to furnish
brief description of the clinical duties performed concerns
only the
said categories and does not apply to Chief Medical Superintendents.
[18]
While he was receiving commuted overtime as a Chief Medical
Superintendent, he applied for commuted overtime for clinical work
at
Osindisweni Hospital and was paid overtime at the rate of a Senior
Medical Superintendent. As a result of the translation
from
Chief Medical Superintendent to Hospital Manager, he could not
receive commuted overtime which he received as a Chief Medical
Superintendent, but could only receive commuted overtime for clinical
work at Osindisweni Hospital. He is of the view that
he should
have continued to receive commuted overtime as Hospital Manager as it
was part of his salary. He received this
commuted overtime
since 1992 and it was stopped in December 2002.
[19]
With regard to translation from Chief Medical Officer to Hospital
Manager, they (hospital management teams) were invited to
a meeting
at Addington Hospital. At the meeting, they were informed that
as a result of transformation, it will no longer
be necessary for the
hospital heads to be medically qualified. At the end of the
meeting, a lot of questions remained unanswered.
They were
promised further meetings to explain the transformation process as it
affected Medical and Dental personnel.
[20]
A further meeting was held in September 2002 with the respondent and
Medical and Dental personnel, and Union Officials.
At these
meetings, they were informed that the new structure will be in place
by 1 January 2003 and that commuted overtime will
cease. This
meeting ended with animosity because the applicants walked out at the
manner in which the meeting was conducted,
as it was dictatorial in
nature. Subsequent to this meeting, he received a letter which
offered him the position of a Hospital
Manager which amongst others
stated the following:
“
The
Government Policy requires the Department to embark on the process of
transforming and restructuring the managements of hospitals
/
institutions in preparation for the implementation of a decentralised
hospital management. One of the major changes has
been the
abolishment of positions of medical superintendent, senior medical
superintendent and chief medical superintendent posts
that manage the
hospital and creation of posts of Hospital Manager [at various
levels]. The post of Hospital Manager, although
having a
portion of the job content which is similar to that of the
Superintendent posts [various grades], is nonetheless as new
position. The post of Chief Medical Superintendent, which you
presently occupy, is now obsolete on the establishment.
This
was explained at a meeting on the 25 April 2002 and more lately at a
meeting on 30 September 2002, which you attended together
with your
Union representative.”
[3]
[21]
Despite what is contained in the aforegoing letter, his job did not
change in anyway after 1 January 2003.
[22]
He accepted the said translation subject to the fact that he would
lodge a dispute over commuted overtime that was no longer
part of
this salary, which he did and hence these proceedings.
[23]
Under cross-examination, he admitted that, in respect of commuted
overtime, he had to have a separate agreement with the respondent.
In terms of this agreement, he would accept that he would be
automatically excluded from further participation in the dispension
in the event of any refusal or hesitation on his part to perform
overtime and that the performance thereof would not be of lower
standard than the expected medical norm, and would not be entitled to
any other form of compensation in respect of overtime.
He
admitted that this agreement gave him the election to participate or
opt out of overtime arrangement, but contends that he would
not be
able to function as
a
Chief Medical Superintendent if he were to opt out. He further
admitted that, the respondent, based on the prevailing circumstances
may decide to discontinue the overtime arrangements but will have to
face consequences. There would be nothing wrong with
such a
decision. Further that he is aware of resolution 9 of 2000 in
terms of which compensation for overtime is not applicable
to members
of Senior Management Services, of which he was a member.
[24]
As far as the restructuring that was taking place, he said the Labour
Unions were involved in such restructuring and admitted
that as a
result of the said restructuring the position of Chief Medical
Superintendent was abolished but was made to understand
that such a
position exists elsewhere. He could not comment when it was put
to him that because the position of Chief Medical
Superintendent was
no longer in existence and therefore the allowance that was attached
to it could not remain.
[25]
He admitted that in terms of the transformation that was taking
place, the respondent could place employees who have their
positions
abolished in the equivalent positions where employees would perform
similar although not all duties of the new position
but that this
should be done with the consultation of the incumbents of the
abolished positions. He testified that in their
case, they were
not given opportunity to make inputs as they were not consulted.
[26]
He admitted further that he had signed the contract of a Hospital
Manager but did not agree with the forfeiture of commuted
overtime.
He does not agree with the respondent where the latter contends that
the two positions are different because the
workload increased
substantially and admitted that new functions were added e.g
determining policies and budgeting, other functions
were extended
such as workplace discipline, etc.
[27]
For him, to qualify for overtime, he had to conclude an agreement
with the Department and only for clinical work. He
had applied
to have his overtime work at Osindisweni Hospital be continued but it
had to be brought in line with the new dispension
which required that
such work be for clinical work and only to be performed during
weekends and he was compensated for clinical
work performed in terms
of such arrangements.
[28]
He further admitted that he got authority to do overtime as above on
the basis of Public Service Regulation, 1999 clause D3(b)
which
provides as follows:
“
A
executing authority may in exceptional circumstances, compensate a
member of the SMS for overtime if:
(b)
the department has established an unambiquous procedures and criteria
on overtime which have been consulted with the relevant
personnel......”
[4]
[29]
With regard to consultation, he confirmed that two meetings were held
with the respondent, 19 April 2002 at Addington Hospital
and the
other one held with the Head of Department in September 2002 at
Natalia. He however, could not remember a further
meeting held
on 20 May 2002 at Albert Luthuli Hospital.
Ahmed
Yacoob Badat (First Applicant)
[30]
He is currently retired and at the time of retirement, he was a
Hospital Manager for King George V Hospital. Before becoming
a
Hospital Manager, he was a Chief Medical Superintendent.
[31]
When the transformation was mooted and that the position of Chief
Medical Superintendent would be translated into that of Hospital
Manager, his concern was loss of prestige (status) and finance.
As Chief Medical Superintendents they were treated as very
Senior
Management.
[32]
As a result of the transformation, the hospitals were now headed by
Hospital Managers at varying levels ranging from Hospital
Manager
Level 11, 12 and some at Level 13, depending on the size of the
hospital. The extent of the duties also depended
on the size of
the hospital.
[33]
With regard to commuted overtime, he testified that as a Chief
Medical Superintendent, he performed a host of activities, from
consents, transfer of patients, finding of an ICU bed, transport
services after hours, redirecting of patients etc, that were managed
on a 24 hours basis. The decision to take away the overtime
which he received as a Chief Medical Superintendent while still
performing such duties does not seem to be fair.
[34]
However, he could not say with certainty whether the duties that he
performed for commuted overtime where clinical or administrative
because an issue may have both elements and therefore he said he is
unable to differentiate between them.
[35]
With the decentralisation resulting from transformation much work was
devolved to the hospitals to the extent that even if
new posts were
created to assist the hospital manager, the latter still had a lot of
work.
[36]
In so far as the commuted overtime operated, he confirmed the third
applicant’s evidence. He received the commuted
overtime
at the time when he was appointed Chief Medical Superintendent at
Prince Mshiyeni Hospital until December 2002 when it
was stopped by
the respondent and at the time he was translated from Chief Medical
Superintendent to Hospital Manager. He
accepted the changes
save for the fact that he wanted the commuted overtime in the form
that he received it before the translation.
[37]
In so far as consultation is concerned, he testified that he was
present at a meeting which the respondent held at Addington
Hospital.
They were informed about the envisaged changes, e.g. creation
of posts etc. They were informed further that
the
Superintendents, whether Senior or Chief Medial Superintendents,
would be translated into Hospital Managers. He could
not recall
whether commuted overtime was discussed. At the second meeting
held at the behest of the applicants, the concerns
of Chief Medical
Superintendents, e.g. loss of commuted overtime was discussed.
The meeting was shabbily handled because
they were told that changes
as proposed by the respondent would carry on regardless. He
also confirmed the meeting of 20
May 2002 at Chief Albert Luthuli and
that the issue relating to commuted overtime was one of the issues
discussed.
Under
cross-examination he testified as follows:
[38]
Despite the additions of further duties to the post of Hospital
Manager, the posts remained similar. He said the job
content
was the same but became more scientific in the management thereof but
in the end he admitted the positions were different.
[39]
He admitted that every time the overtime system changed there was
also a need for a new application and that it was up to the
respondent whether it is approved or not. It was also up to the
respondent whether employees could work overtime or not.
[40]
He admitted further that in his position of Hospital Manager he was
required to apply for overtime and that the respondent
was entitled
to change the system of overtime based on operational requirements
prevailing at that time. He conceded that
commuted overtime was
not taken away but the system changed to one where they would do
overtime for clinical work and also during
weekends. He
however, did not apply for the new system because he believed that
nothing had changed except the change in
names. He admitted
that he needed to apply for the said overtime arrangement to qualify
for it.
[41]
He conceded that with the translation, his salary remained the same
at Level 13, and that the overtime cannot be used to supplement
or
augment basic salary.
Jayashree
Desai
[42]
She testified on behalf of the respondent that she is employed by the
respondent as a Deputy Director, Human Resource. Prior
to July
1996, the respondent introduced overtime paid to medically qualified
personnel which was called a non-pensionable allowance.
It was
paid in respect of a 56 hour week, and the doctors had to sign a
contract and elect to work a 56 hour week. If they
did that
they were paid an additional non-pensionable allowance. If an
employee worked in access of 56 hours, a claim for
those hours had to
be completed detailing the hours worked.
[43]
After 1996, it was decided nationally to introduce a system of
commuted overtime. The implementation meant that there
would be
no longer claims and that when a contract was signed and the employee
had the contract approved, a monthly allowance would
be paid in lieu
of overtime or in respect of overtime. The system had to be
implemented in line with Personnel Circular No
55 of 1996. When
it was introduced, it was only paid to medically and dental
personnel. The Chief Medical Superintendents
received a monthly
rate of R3618.08.
[5]
[44]
The purpose of the commuted overtime was to avoid the need for
Medical and Dental staff to maintain records of overtime and
the
decision was also prompted by the fact that the previous system was
cumbersome and open to abuse. This system was modified
in
1997. Prior to 1997, the system did not take into account the
various
notches
that existed within a particular rank and after 1 May 1997, the
system then recognised this element. Further, that
it provided
for 4 groups, 1 to 4. Group 1 was allocated 4 hours per week
and paid actual hours worked. Group 2 was
allocated 5 –
12 hours but payment was based on 8 hours. Group 3 was
allocated from 13 to 20 hours a week and the actual
hours paid was
based on 16 hours.
[45]
The system provided that when there is a movement from one work
sphere to another or from one rank to another, the personnel
will
have to complete a new contract because of changed circumstances and
that such circumstances could result in the reduction
of overtime
rate, for example a change from Chief Medical Superintendent to
Hospital Manager.
[6]
[46]
In terms of the policy, overtime should not be used to supplement
salaries because it is an allowance and not taken into account
in
determining a salary and the respondent had the prerogative to
increase or to decrease it. In fact Professor Green-Thomson,
then Superintendent General did make such changes from time to time
and he did so based on departmental policy where it says:
“
An
earnest appeal is made to heads of departments to ensure that the
issue of overtime is handled with circumspection. Overtime
should be authorised only when there is a genuine need and should not
be seen as a means to supplement or augment one’s basic
salary.”
[7]
[47]
The system was reviewed from time to time, for example as it appears
in Exhibit “E” page 27 from 1 July 1997.
There was
also a further adjustment on 1 July 1998.
[8]
[48]
Generally, Senior Management Services are not paid overtime but there
are exceptions as contained in paragraph 28 above.
[49]
There was a restructuring that took place in the Department of Health
(within respondent). One of them was that Hospital
Managers no
longer needed to be medically qualified and that people with a whole
assortment of qualifications could become Hospital
Managers as well
and therefore the position of Chief Medical Superintendent was
abolished and a new position of Hospital Manager
was created.
As a result of these changes, a new system of commuted overtime was
introduced as per Personnel Circular No
44 of 2002 appearing at page
59 of the respondent’s bundle of documents to the following
effect:
“
After
much discussion it has been decided that because of the scarcity of
skills, Hospital Managers who are also qualified doctors,
can receive
commuted overtime as long as that commuted overtime is for after
hours clinical work.”
[50]
She attended the meetings at Addington Hospital and Chief Albert
Luthuli Hospital and a further meeting in September 2002 as
a human
resource official. In these meetings, the new proposed
organogram was discussed as well as the new overtime structure.
[51]
The commuted overtime the applicants received as Chief Medical
Superintendents was for clinical work (see Annexure “F”),
where in terms of the contract the services had to be of a medical
norm and that the word clinical and medical are interchangeably
used. If the applicants were doing administrative work as
commuted overtime they should not have been paid.
[9]
[52]
At the meeting at Addington Hospital, the issue of commuted overtime
did arise but was not conclusively resolved. In
the second
meeting held at Chief Luthuli Hospital, the respondent put its stance
that it would allow Hospital Manager who are medically
qualified to
do overtime provided that it is done during the weekends only and
they had to apply to qualify for such overtime.
[53]
It is not correct that the respondent took away the said commuted
overtime but the respondent had insisted that it be performed
in a
particular way.
[54]
Under cross-examination, she testified that in terms of the policy,
the paid overtime did not have to be always worked and
this was in
reference to group 2 and 3 to which Chief Medical Superintendents
belonged. For these groups it could be paid
for absences from
duty on vacation leave for a period of 30 days or 36 days, dependent
on one’s years of service. She
said that was probably a
mistake by Head Office. She further accepted that in this way,
it was treated as if it was part
of the salary package.
Evaluation
[55]
The first issue that the Court is asked to determine is whether the
payment of commuted overtime for non-clinical work was
part of the
terms and conditions of employment of the applicants.
[56]
The performance of overtime is regulated by the BCEA. Section
10(1) (a) thereof provides that the performance of such
overtime must
be as a result of an agreement.
[57]
Both applicants conceded that the respondent had the prerogative to
regulate the performance of the said overtime. The
concessions
where based amongst others on the following:
-
Public Service Staff Code IV provides that the purpose of remunerated
overtime duty is to compensate officers and employees for additional
duties which they perform in specific circumstances in excess
of
their hours of attendance by order of the head of department.
Paragraph 3 titled authorisation provides that:
(a)
The authorisation in this part is issued in accordance with the
provision of Section 41(e)
of the Public Service Act, 1994 and Public
Service Regulation G3 (2).
(b)
The authority to approve overtime remuneration for duty in excess of
prescribed hours of
attendance rests with the head of department.
[58]
Paragraph 7(b) thereof provides that in order to improve control, the
head of department may consider determining beforehand
the number of
hours overtime duty to be performed each day and, as far as possible,
setting production targets and or aims as criteria.
[59]
Public Service Regulation, 1999 provides that:
“
D1.
The minister shall determine rates of compensation for overtime
through the collective bargaining process.
D2. An
executing authority may compensate employee for overtime work if:
(a)
the employee does not belong to the SMS,
except in certain cases mentioned in regulation V.D.3.;
(b)
the department has a written policy on
overtime;
(c)
the executing authority has provided
written authorisation in advance for the work, and
(d)
except in exceptional circumstances, the
monthly compensation for overtime constitutes less than 30 per cent
of the employee’s
monthly salary.
D3 An executing
authority may in exceptional cases, compensate a member of SMS for
overtime if:
(a)
the compensation for overtime constitute 1
per cent or less of the salary bill on the relevant salary level; and
(b)
the department has established clear and
unambiguious procedures and criteria on overtime which have been
consulted with the relevant
personnel.”
[60]
The respondent introduced overtime over the years which according to
evidence underwent different name changes. Initially,
it was
called non-pensionable professional allowance and later called
commuted overtime.
[61]
In line with the BCEA, the respondent ensured that there was an
agreement between it and the personnel. According to
evidence,
every time there was a change from one rank to another, change from
one sphere of work to another or change in the salary
of an officer,
a new agreement had to be completed and authorised.
[62]
Indeed the Revised Dispensation of medical and dental personnel dated
10 April 1997 paragraph 9 thereof says:
“
It
will be necessary for all participants in the overtime remuneration
dispensation to complete revised performance contracts.
Of
necessity, when people change from one work sphere to another or from
one rank to another, they will have to complete a new
contract
because of changed circumstances. It must be accepted that such
changes could result in a reduction in the overtime
rate.”
[10]
[63]
Before their translation from the Chief Medical Superintendents to
Hospital Managers, both applicants had completed the said
performance
contract for commuted overtime.
[64]
Item C (ii ) of the said performance contract provides as follows:
“
I
accept that I will be automatically excluded from further
participation in the event of any refusal or hesitance on my part to
perform overtime. I undertake to ensure that the services
rendered during any period of overtime will not be of a
lower
medical standard than the expected medical norm
(my emphasis)”
[65]
The said performance agreement makes provision for the head of the
clinical department and secondly for the head of the institution
to
recommend or decline such application for commuted overtime.
[66]
Personnel Circular No 62 of 1996 provided for the following:
“
commuted
overtime; medical and dental personnel:
1.
.....
2.
.....
3.
It was mentioned at a meeting of all
Medical / Dental Superintendents and Senior Medical / Dental
Superintendents on 1 August1996
that the situation could exist in
smaller institutions that those who hold the rank of Medical /Dental
superintendent could be
engaged “in a large amount of clinical
duties. In these instances, a letter advising that this
instruction exists
at your institution as well as a brief description
of the clinical duties performed must be submitted to this office”
together
with the roster for period 1.5.96 – 31.7.96 where
after approval will be granted for the payment of the allowance
applicable
to Principal Medical officer (in the case of a Medical /
Dental Superintendent / or chief Medical Officer (in the case of a
Senior
Medical / Dental Superintendent).”
[67]
The applicants have testified that the commuted overtime was meant to
cover both administrative and clinical work. The
respondent on
the other hand led evidence to the effect that this was in fact not
the case. The respondent based its argument
on what I said in
paragraphs 64 and 65, which I now proceed to deal with.
[68]
I agree with the respondent that the performance contract and the
above circular intended the commuted overtime to be performed
for a
service of a medical/clinical nature. Indeed the applicants
conceded in their evidence that the words medical and clinical
could
be used interchangeably. Reading through the said circular, I
do not see how administrative duties could be read into
them.
It may well be that the applicants read it so to suite their
circumstances and perhaps because of lax supervision they
allowed a
situation where they read it into the circulars or contracts.
For the fact that they were able to do so does not
mean that it is
how it was intended. The applicants argued that the above
circular was not addressing the situation of the
Chief Medical
Superintendents. However, it is clear that it is addressed to all
medical and dental personnel. It is also
clear that the
allowance as such was meant for medical and dental personnel and the
applicants were receiving it on the basis that
they were medical
doctors albeit that each category received a specific rate. I
cannot see how the other Senior Medical and
Senior Dental
Superintendents could be expected to do clinical work for commuted
overtime while the Chief Medical/Dental Superintendent
were allowed
to claim for administrative work. I say so because both were
also heads of hospitals and doing similar administrative
and clinical
work albeit on different scale or extend.
[69]
Further, that, when one looks at the contract, the recommendation
must first be made by a head of the clinical department and
then by
the head of the institution. This in my view indicates further
that the work was supposed to be of a clinical nature.
In their
evidence, applicants indicated it was difficult at some point to
determine whether a service was of administrative or
clinical nature,
and perhaps the respondent may have paid for such a service on the
basis that it consisted of both elements.
This does not
however, prevent the respondent to demand that commuted overtime
should be for clinical duties. Gray areas
do not mean that
rules do not exist. If the respondent paid because there were
both elements, it cannot therefore be said
that it was paid for pure
administrative service. The reason why it was paid was because
the said service contained a service
of clinical nature. In my
view, the respondent would have paid because of the clinical element
and nothing else.
[70]
In the premises, I find that the commuted overtime was intended for
service of a clinical nature and that the payment of commuted
overtime for non clinical work was not part of the terms and
conditions of employment of the applicants.
[71]
Even if I had for argument sake concluded that payment for
non-clinical work was a term of the conditions of employment of
the
applicants, the applicants would not succeed for the following
reasons:
[72]
The performance agreement for commuted overtime had to be read
together with Public Service Act and regulations, and circulars.
The above instruments give the respondent the power to determine
when, how and to what extent commuted overtime should be performed.
Both applicants conceded this much. It is clear from the
evidence there was major restructuring which resulted in the
positions
of Chief Medical Superintendent being translated into
hospital manager. The respondent as I stated above determined
that
the hospital managers would not receive commuted overtime
because some of them were not medically trained and could not perform
commuted overtime for a work of clinical nature. The respondent
withdrew the said commuted overtime attached to the former
position
of Chief Medical Superintendent and introduced commuted overtime to
be performed for clinical work and only on weekends.
To
qualify, the applicants would have to apply and approval sought from
the head of the department. In fact, one of the applicants
Dr.
Moodly applied and received approval to do that work at Osindisweni
Hospital. The applicants conceded as I said above
that
respondent could change the way overtime is performed and I think
this is exactly what the respondent did. It was an
express term
of their relationship that the respondent would determine how
overtime is to be performed. The respondent did
just that.
[73]
Secondly despite the respondent’s power as outlined above when
the said changes were mooted, the respondent engaged the
applicants.
The evidence shows that there were three meetings which were held
with the applicants during the consultation
stage. It appears
that the applicants were not satisfied with the outcome.
However, the fact that they were not satisfied
does not mean that
they were not consulted. As a matter of fact, coming out of the
consultation process, the respondent came
up with a decision as
captured in circular 44 of 2002 to the following effect:
“
After
many discussions, it has been decided that, because of the scarcity
of skills, Hospital Managers who are qualified doctors
can receive
commuted overtime as long as this is for after hour’s clinical
work.
It has been decided that
a Hospital Manager at Level 2 can receive commuted overtime up to 16
hours and a Hospital Manager at Level
13 can receive commuted
overtime up to 8 hours.
3.
..........
4.
Doctors applying for positions of Hospital Managers must please be
aware that the approval of commuted overtime on
the basis describe in
paragraph 2 above is not automatic. On promotion or translation
to the position, a new application
for commuted overtime will have to
be made.”
[74]
Thirdly, the applicants conceded that Labour Unions were involved in
this transformation and hence, the changes were done after
consultation with them.
[75]
Therefore, the contention by applicants that there was no proper
consultation cannot stand in light of the above.
There
was therefore no unilateral change of conditions of employment.
[76]
In the circumstance my order is as follows:
1.
The claim by the first and second applicant is dismissed.
2.
I make no order as to costs.
_______________________
SHAI
AJ
Appearances
For
the Applicant :
Mr. Kirby-Hirst
Instructed
by
:
Macgragor Erasmus Attorneys
For
the Respondent :
Ms. MG de Klerk
Instructed
by
:
State
Attorneys
[1]
75 of 1997.
[2]
See
page 47 of Index A.
[3]
See
page 67 of the Index A.
[4]
See
Respondent’s Bundle “E.”
[5]
See
page 5 of Respondent’s Bundle of Legislation and circulars.
[6]
See
page 16 Respondent’s Bundle of Legislation and circulars.
[7]
See
page 16 of Bundle “E”.
[8]
See
page 33 – 39 of Bundle “E”.
[9]
See
Annexure “F”.
[10]
(see
page 16 – 18 bundle E).