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[2011] ZALCD 6
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Health and Other Services Personnel Trade Union of SA (HOSPERSA) and Others v Member of the Executive Council Health, Kwazulu-Natal and Another (D919/11) [2011] ZALCD 6 (28 October 2011)
9
REPUBLIC
OF SOUTH AFRICA
Reportable
Of interest to other
judges
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Case no: D919/11
In the matter between:
HEALTH AND OTHER
SERVICES PERSONNEL
TRADE UNION OF SA
(“HOSPERSA”)
AND OTHERS
….............................................................................................
Applicants
and
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR HEALTH, KWAZULU
NATAL
….................................................
First
Respondent
DEPARTMENT OF HEALTH,
KWAZULU NATAL
…....................
Second
Respondent
Heard
:
20
October 2011
Delivered
:
28
October 2011
JUDGEMENT
BOQWANA AJ
This is an urgent
application brought on 13 October 2011 for an order interdicting and
restraining the respondents from taking
any steps to fill the posts
of Finance Manager and Systems Manager arising out of the
respondents’ decision to separate
what were formerly combined
posts in hospitals in KwaZulu Natal.
The applicants filed
their notice of motion on 13 October 2011 in which no date and time
for the hearing was fixed and gave the
respondents 10 days in which
to file opposing papers. The application was initially filed to be
heard as a normal application.
The notice of motion was later
amended on the same date, fixing the application hearing date as 20
October 2011 and giving the
respondents until, 12:00 noon, 19
October 2011 in which to file opposing papers, thereby bringing the
application on an urgent
basis. The relief sought remained the same
and the founding affidavit remained unchanged.
The respondents did not
file opposing papers but made submissions based on the applicants’
papers.
The applicant is the
Hospersa (“the union”), a trade union registered in
terms of the Labour Relations Act 66 of 1995
(“the LRA”),
representing four of its members. The four members of the union who
are also applicants are employed
by the respondents in the following
positions: Finance and Systems Managers. Apparently, these are four
of many employees holding
these posts within the respondents.
On 16 September 2011,
the Head of the second respondent sent a Human Resources Management
Circular No 97/ 2011 (“the circular”)
to the District
Managers, Hospital Managers, Community Health Centre Managers, Heads
of Institutions and Head of Office Managers
stating, inter alia,
that the posts of Finance and Systems Managers which were created as
combined posts, had been separated
and created as Finance Manager
and Systems Manager posts.
The applicants contend
that the separation of these two posts would amount to a demotion or
lesser job status. They submit that,
although the grading and salary
would remain unchanged, their job descriptions would be
significantly affected. I must state
at the outset that neither job
descriptions nor detailed averments were placed before me in order
to provide the court with a
better understanding of the extent to
which the applicants’ responsibilities would be reduced. The
applicants merely state
that they will suffer diminution in status
without supporting this averment with any significant detail. In
support of the Applicants’
case, Counsel referred to John
Grogan’s
Workplace Law
Tenth Edition (2009) at 79 para
5 which states that a demotion occurs if the employee’s
remuneration, responsibilities
or status is materially reduced. In
the absence of any detail on the job description detailing the
responsibilities of the applicants,
it makes it difficult to
determine whether the applicants’ responsibilities or status
would be materially reduced in terms
of the principle/definition of
John Grogan.
The circular is also not
very helpful as it simply outlines the decision to separate the two
posts and the process to follow.
This, in my view, supports the
proposition made on behalf of the respondents by their Counsel that
the application brought by
the applicants is premature and
pre-emptive of a process of “consultation” that still
has to take place. It may well
be that there is a reduction of
responsibility from the reading of the circular, but that, in my
view, would form part of the
consultation process between the
parties. A dispute of unfair demotion has been referred to the
Public Health and Social Development
Sectoral Bargaining Council
(“the PHSDSBC”) on 11 October 2011. Based on the nature
of the dispute this is the appropriate
dispute resolution process.
The second issue raised
by the applicants is that they have a right to be consulted in terms
of various collective agreements
and policies. In particular, they
allege that the respondents have failed to adhere to Resolution 3 of
1999 concluded at the
Public Service Co-ordinating Bargaining
Council (“the PSCBC”), which provides in paragraph 1
that:
‘
Where
changes in work organisation affect matters of mutual interest, the
employer and employee representatives shall negotiate
in the relevant
sectoral, provincial or departmental council.’
In this regard, another
dispute was referred to the PSCBC pertaining to the alleged breach
of the Resolution above. Likewise,
if the applicants are entitled to
be consulted, that could be dealt with at the bargaining council.
It is trite that in
order to succeed,
the
applicants must satisfy the court that the matter is urgent; that
they have a
prima
facie
right;
that there is a well grounded apprehension that they may suffer
irreparable harm; that the balance of convenience favour
the
granting of an interdict; and that it has no satisfactory remedy.
1
I first deal with
urgency. The applicants contend that they are scared that if the
interim interdict is not granted,
freezing the status quo
,
the respondents will go ahead and implement their decision to
separate the two posts without consulting with the applicants.
The
respondents, according to the applicants have demonstrated intent to
implement this decision as a matter of urgency. The
applicants
further contend that the respondents’ refusal to provide an
undertaking not to go ahead with the implementation
of the
separation of the two posts, pending consultation process with the
applicants is indicative of their intent to proceed.
Counsel for the
applicants referred to paragraph 7 of the circular, which reads as
“
The advertisement and filling of posts of Systems Manager
by the Institutions as explained above must be finalised by the end
of November 2011”.
I must pause here to
point out that the circular separates Regional and Tertiary
Hospitals from District and TB Hospitals. Regional
and Tertiary
Hospitals are dealt with under paragraph 2.1 whilst District and TB
Hospitals are dealt with under paragraph 2.2.
This is significant in
that, Counsel for the applicants submitted that the applicants fell
under paragraph 2.2.
Paragraph 2.2 (c) of the
circular stated as follows:
‘
If
the Finance and Systems Manager posts which were initially created as
combined posts are currently filled, Head Office will advertise
the
posts of Finance Manager. The incumbents who are appointed to the
combined posts of Finance and Systems Manager must be absorbed
in the
posts of Systems Manager
after
consultation
provided they were appointed on salary level 9 or 10 as the case may
be.’
Based on the paragraph
quoted above, it is clear to me that paragraph 7 cannot apply to the
applicants in that they will be absorbed
in the posts of Systems
Manager (after consultation) and the post to be advertised will be
that of the Finance Manager. A copy
of an advert appearing to
advertise the position of the Finance Manager for, inter alia,
Districts and TB Hospitals was handed
in court by the applicants’
Counsel. The respondents had no difficulty with this document being
handed in court. It seems
to be unfair to me that the applicants
would be required to apply for the jobs that they currently hold, if
that is the respondents’
intent. However that does not make
the matter urgent for the purposes of these proceedings. That
remains a matter to be debated
and discussed at another forum and
not for this court to decide. A further point that strengthens a
case against urgency is that
the said advert is undated and contains
no cut off date for submission of applications by the applicants for
the posts.
I am also persuaded by
the argument proffered by the respondents’ Counsel that the
circular itself under paragraph 2.2 (c)
does subject the
implementation of the decision, to absorb current incumbents, to a
process of consultation.
I am therefore inclined
to agree with the respondents’ Counsel that, the applicants
are, at this point, merely anticipating
that implementation will
take place without consultation. That, however, remains speculative
and is an event that has not yet
occurred. I also note that the
applicants became aware of this circular since 29 September 2011 and
only brought the matter to
court on 13 October 2011. The applicants
conceded that nothing had happened from the respondents’ side
since they got wind
of this circular. Based on this I am not
satisfied that the applicants have demonstrated any urgency.
2
I have in any event also
decided to deal with other requirements to satisfy an interim
relief. The applicants contend that there
is no satisfactory
alternative remedy available to the applicants. First, the
applicants have referred two disputes to the bargaining
councils. In
my view this is a clear demonstration that there is an alternative
remedy that is at the disposal of the applicants.
This is a
statutory remedy that is appropriate given the circumstances.
Second, respondents made a submission that in an unfair
labour
practise dispute applicants would clearly be entitled to restoration
to their positions prior to the implementation of
the decision
should they be successful at the bargaining council. The employer
would be obliged to comply with whatever award
as determined by the
bargaining council. Applicants’ Counsel submitted that
bargaining councils would not order an employer
to remove successful
candidates who would be incumbents in the newly created positions.
It may be that bargaining councils have
been hesitant in giving
orders that affect incumbents already in a job, however, I find no
legal basis for them to refuse to
order an employer to “unscramble
the egg” that it had scrambled by itself as it were. Third,
the respondents submitted
that with regards to the material change
to the job descriptions of the applicants, an order can be obtained
by the applicants
in terms of section 64(4) of the LRA. Last, the
applicants could claim specific performance. I agree with this
proposition. I
will not go into detail on these other alternative
remedies proposed by the respondents, save to mention that it is
clear to
me that there are a number of alternative remedies
available to the applicants. The applicants’ Counsel conceded
that other
alternative remedies are there, he however submitted that
those were not satisfactory alternative remedies. I however disagree
with that proposition. This then takes me to the next requirement of
apprehension of irreparable harm that needs to be met by
the
applicants.
In dealing with
apprehension of irreparable harm, I am not convinced with the
proposition advanced by the applicants’ Counsel
that, if the
interdict were to be refused and the employers went ahead to
implement their decision without consultation, that
it would be
impossible to restore the
status quo
. I am of the view that
the employer would be obliged to
follow any
award properly determined by the bargaining councils. It seems to
me, that if the employer goes ahead to implement
without
consultation it would be doing so at its own peril. Further, it
would have to deal with the consequences of having to
undo its
decision to implement in the face of its own undertaking on
paragraph 2.2(c) of the circular as well as the suggested
collective
agreements and policies referred to by the applicants.
As
indicated above, the applicants seek for this court to intervene and
give an order interdicting and restraining respondents
from
implementing their decision pending resolution of the disputes at
bargaining council level. In this respect, the applicants
must show
that they have a
prima facie
right for an urgent relief sought. They have to show that this is
one of those exceptional cases warranting the intervention
of the
court. In my view, the applicants may have established a
prima
facie
right to be consulted before
a decision was made by the respondents however, that falls within
the jurisdiction of the bargaining
councils and not for this court
to decide. Further, neither parties nor this court has any control
of when the disputes would
be resolved at bargaining councils. It
seems to me that the relief sought, if granted, may have far
reaching consequences beyond
the four applicants. An order such as
the one sought by the applicants cannot be given lightly without the
applicants passing
all of the hurdles required for an urgent
interdict.
Finally,
the balance of convenience favours the respondents in that the
matter has already been referred to the bargaining council.
In the
interest of expeditious resolution of disputes that process should
be allowed to continue to finality. The overriding
issue however, is
that no urgency has been shown and that there are satisfactory
alternative remedies available to the applicants.
[22] I therefore make the
following order:
The application is
struck off from the roll for lack of urgency.
The applicants are
ordered to pay the respondents costs.
_______________________
Boqwana AJ
Appearances:
For the Applicants:
Advocate R Seggie SC
Instructed by: Llewellyn
Cain Attorneys, Pietermaritzburg
For the Respondents:
Advocate L Naidoo
Instructed by: State
Attorney
1
South
African Aviation and Allied Workers Union v Airport Company South
Africa (Pty) Ltd and National Education, Health and Allied
Workers
Union
, unreported judgement, case number J1064/11
2
See
Chiloane v Nhluvuto Agricultural Project and Others
(2000) 4
BLLR 392
(LC).