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[2012] ZALCPE 1
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South African Medical Association (SAMA) obo Linda v Department of Health: Eastern Cape and Others (P483/07) [2012] ZALCPE 1 (17 January 2012)
REPUBLIC OF SOUTH
AFRICA
the labour court of
South Africa, PORT ELIZABETH
judgment
Reportable
case
no: P483/07
In the matter between:
SOUTH AFRICAN MEDICAL
ASSOCIATION (SAMA)
obo LINDA
…............................................................................................................
Applicant
and
DEPARTMENT OF HEALTH:
EASTERN CAPE
….....................................
First Respondent
PHWSBC
…............................................................................................
Second
Respondent
FAITH NCUMISA BANTWINI
….................................................................
Third
Respondent
Heard
:
11
November 2011
Delivered 17
January 2012
Summary:
Review–
Interpretation and application of resolution 1 of 2004 Public Health
and Welfare Sectoral Bargaining Council. Review
dismissed- no proper
record.
JUDGMENT
MOLAHLEHI J
Introduction
This is an application
to review and set aside the arbitration award made by the third
respondent (the arbitrator) under case
number PSHS 40-07/08 dated 30
August 2007. In terms of that arbitration award, the arbitrator
found that the second applicant
did not qualify for the skills
allowance as provided for in terms of resolution 2 of 2004 read with
the Implementation Policy
of Scarce Skills and Rural Allowance in
the Public Health Sector of 1 July 2003.
Background facts
The applicant who is
employed by the first respondent (the department) as Chief Medical
Superintendent at salary level 13 at the
Umtata hospital declared a
dispute against the department concerning payment of the scare
skills allowance (the allowance).
The department had
initially paid the applicant the allowance but later refused to pay
on the grounds that the applicant did not
qualify for the allowance.
The department said that the applicant did not qualify for the
allowance because she was employed
as a senior manager and thus
forming part of the Senior Management Service (SMS).
The issue in this matter
concerns the interpretation and application of Resolution 1 of 2004
of the PHWSBC. The objectives of
the Resolution reads as follow:
‘
1.1
To attract and retain professionals with scare skills on a full time
basis to the Public Health Sector as managed by Health
Employer;
1.2
To institute a non-pensionable scarce skills allowance. For
designated health professional categories working in clinical service
delivery of Public Health Sector hospital/institutions and are not
part of Senior Management Services;
1.3
To identify the initial occupational group as the first recipients of
the scarce skills allowance;
1.4
To determine the percentage of allowance and method of payment; and
1.5
To agree that scarce skills allowance be a fixed percentage linked to
the annual salary notch.’
In terms of clause 3 of
the Resolution, the parties to the bargaining council agreed that
the allowance would be paid to the occupational
groups that are
designated as scarce skills and also that a non-pensionable scarce
skills allowance of the relevant annual salary
notch be payable to
personnel in the occupational groups that are listed in the
resolution.
According to the
applicant after the introduction of the allowance, the Minister of
Public Administration unilaterally introduced
a limitation to the
application of the resolution that excluded employees who are
members of the Senior Management Service (SMS)
from receiving the
allowance.
In introducing the
exclusion of the SMS, the Minister exercised that power in terms of
section 3(3) (c) of the Public Service
Act of 1994. However the
exclusion did not apply to those of the SMSs who performed nominal
managerial duties. The Minister’s
determination set out the
criteria to be used in determining whether a member of the SMS
qualifies for the allowance.
The arbitrator's award
The arbitrator in
finding that the applicant did not qualify for the allowance took
into account the policy which the department
had introduced for the
purposes of implementing the allowance, the requirement that for a
member of SMS to qualify his or her
weighted work in the identified
clinical service must be 50 percent or more of the employee’s
job. It would seem that although
the arbitrator accepted that the
applicant did some clinical duties he was not satisfied that she
(the applicant) did enough
to qualify for the exception to the
general rule that member of the SMS did not qualify for the
allowance. The arbitrator further
noted that the applicant is a
senior manager at salary level 13.
The grounds for review
The
applicant contended that the arbitrator in arriving at the
decision as he did was influenced by material error in law,
was
arbitrary or capricious and was not rationally connected to the
information which was before him or her. The applicant
did not
dispute that she was part of the SMS but contended that she also
performs clinical services as a medical doctor.
Evaluation
It
would seem to me that the critical aspect of this review concerns
the issue of whether the applicant performed the clinical
work at
the level where the exception to the general exclusion of payment
of the allowance to members of the SMS would
apply to her. In
other words, the question is whether the applicant in her work
performed 50 percent or more of the clinical
work.
This
issue cannot in my view be resolved on the papers before this
Court. The applicant has not filed the record of arbitration
proceedings. In terms of rule 7A (6) of the Rules of the Labour
Court, the applicant is obliged after filing the review
application to furnish the Registrar of the Court with record of
the arbitration hearing including the arbitration award.
The
Registrar is then obliged to make the record available in terms
of rule 7A (8) of the Rules. The applicant is further
obliged to
transcribe the record of the proceedings.
In
The
Department of Transport North West Province v Sebotha NO and
Others,
1
this Court held that:
‘
The
responsibility to ensure that a proper and complete record is placed
before the court rests with the applicant. Failure to place
before
the court a complete record by the applicant could result in the
dismissal of the review application on that ground alone
.’
In dismissing the review
application because of failure by the applicant to ensure that a
record of the transcript of the proceedings
was placed before the
court, it was held in
Boale
v National Prosecuting of SA and Others
2
at paragraph
5
that:
‘
It
is trite that there is duty on an applicant to provide a review Court
with a full transcript of the proceedings he wishes to
have reviewed.
The applicant has failed to provide this Court with the full
transcript of the proceedings that he wished to have
reviewed. Where
an applicant fails to provide a full transcript of the proceedings,
the review application must be dismissed. The
only exception would be
where the tape cas
settes
are
missing or where the parties are unable to reconstruct the record.’
The court in
Fidelity
Cash Management Services (Pty) Ltd v Muvhango NO and Others
3
in following the same
approach as that in
Boale
held
that:
‘
[The]
court [should be] placed in a position to assess the different
versions as they were placed before the [commissioner through]
a full
transcription of the record or a satisfactory reconstruction
thereof
.’
In the present instance,
the applicant has not provided the reason as to why the transcript
of the arbitration hearing had not
been transcribed. There is also
no evidence of the applicant taking steps to ensure that the second
respondent produces the record
in terms of rule 7 of the Rules. It
is for this reason alone that the applicant’s review
application stands to be dismissed.
Conclusion
In my view the
applicant's review application stands to be dismissed for failure to
provide the Court with a complete record.
I see no reason why the
costs should not follow the results both in terms of law and
fairness.
Order
In the premises the
review application is dismissed with costs.
________________
Molahlehi J
Judge of the Labour Court
of South Africa
APPEARANCES:
FOR THE APPLICANT: SAMA-
UNION OFFICIAL N.B SIBEKO
FOR THE RESPONDENT: No
appearance
1
(2010)
31 ILJ 97 (LC);
[2009] JOL 23818
(LC) at para 18.
2
[2003]
10 BLLR 988 (LC)
at para
5.
3
(2005)
JOL 14293 (LC);
[2005]
8 BLLR 783 (LC)
at 785 H-I.