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[2014] ZALCCT 22
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Democratic Nursing Organisation of South Africa obo Fadana v Public Health and Social Development Sectoral Bargaining Council and Others (C 1011/2010) [2014] ZALCCT 22 (20 May 2014)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE LABOUR COURT
OF SOUTH AFRICA,
IN CAPE TOWN
JUDGMENT
Case
no: C 1011/2010
In
the matter between:
DEMOCRATIC
NURSING
ORGANISATION
OF SOUTH AFRICA
(DENOSA)
OBO MS F P
FADANA
...................................................................................
Applicant
And
PUBLIC
HEALTH AND SOCIAL
DEVELOPMENT
SECTORAL
BARGAINING
COUNCIL
....................................................................................
First
Respondent
C
S MBILENI,
N.O
...........................................................................................
Second
Respondent
DEPARTMENT
OF
HEALTH
.............................................................................
Third
Respondent
Heard:
21 August 2012
Delivered:
20 May 2014
Summary:
(Review - occupational specific dispensation-promotion
dispute-employee – failure to make necessary factual findings
–
findings made on ‘submissions’ – award set aside).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
In this matter, the arbitrator had to
determine a dispute concerning the interpretation and application of
the Occupational Specific
Dispensation collective agreement of 2007
for Nurses ('the OSD agreement'), which was embodied in PHSDSBC
Resolution 3 of 2007.
The issue in dispute concerned whether or not
the union’s member, Ms F Fadana, a Chief Professional Nurse,
was correctly
translated to the OSD grade of Clinical Nurse
Practitioner Grade 1 with effect from 1 July 2007 in terms of the OSD
agreement.
[2]
The applicant (which refers tp the union
and Ms Fadana jointly)contended that, according to the duties Ms
Fadana was performing
at the time the OSD agreement took effect, she
ought to have been translated to the position of Operational Manager,
because she
was working in that capacity at the Empilisweni Clinic at
the relevant time.
[3]
On the other hand, the Department of Health
argued that the function Ms Fadana was performing at the time OSD was
implemented was
that of a Sister in Charge of the clinic, but that
was a position which was rotated amongst various Chief Professional
Nurses.
When OSD was implemented, the post of Operational Manager was
created at all clinics, but that position was not linked to the
matching
and placement process that took place in the course of
giving effect to the OSD agreement. Because the previous equivalent
position
had been rotated prior to the implementation of OSD, it was
necessary to advertise the post internally.
[4]
It appears to be undisputed that posts of
Operation Manager at all clinics in the Breede Valley sub-district
were only advertised
in May 2009, some 14 months after the
implementation of the OSD. It also seems to be common cause that Ms
Fadana applied for the
post in competition with twelve other
candidates but was unsuccessful. It was only after she had been
unsuccessful in the application
for the post that she first claimed
that she ought to have been automatically translated to that position
by virtue of the provisions
of the OSD agreement. One particular
provision which is at the centre of the dispute between the parties
states:
“
3.2.5.3.
Translation of Professional Nurse (Registered Nurse) to specialty
posts.
(i)
A professional Nurse (Registered Nurse) who
occupies a post in a nursing speciality and who
-
is in possession of a post-basic
clinical nursing qualification listed in Government Notice R 2112, as
amended, shall translate
to the appropriate specialty post; ...”
[5]
A critical difference in the approach of
the parties is that the applicants argue effectively that using the
translation Table (Keys)
contained in Annexure B to the OSD
agreement, Ms Fadana ought to have been automatically translated to
the Operational Manager
grade in question, whereas the employer’s
argument appeared to be based on Annexure A to the OSD Agreement
which stipulates
the career streams, salary scales, appointment
requirements and grade progression/post promotion requirements of the
OSD. For certain
job titles, a requirement for grade
progression/promotion is stated as “Promotion to higher vacant
advertised post.”
In this instance, that requirement is one
that applies to the post of Operations Manager.
[6]
The OSD agreement also makes reference to
an Implementation Directive of the Department of Public Service and
Administration which
was to be followed in giving effect to the
system. That directive contains a similar provision to clause 3.2.5.3
of the OSD agreement
which specifically indicates that translation to
the appropriate salary scale attached to the corresponding management
level salary
of a Professional Nurse includes someone who is managing
a primary health care clinic (as a ‘nursing specialty unit’).
The directive also includes steps to align the organisation of the
post establishment of the Department by converting the current
(pre-OSD) post establishment to a post establishment in line with the
post structure created by the OSD. In Specialty Nursing that
entailed
the conversion of Chief Professional Nurse posts into Operational
Manager posts with effect from 1 July 2007.
[7]
What emerges from the above is that, there
appear to be two distinct elements to the implementation of OSD in
the Department of
Health. One is concerned with the immediate
consequences for an individual occupying a particular salary level
under the old dispensation
to a new salary grade under the relevant
OSD stream based on their occupation. The other is concerned with the
requirements for
appointment and promotion within the new OSD under
the new structure. The first element deals with the alignment of
existing staff
with the new salary structure and the second with the
placement of staff in specific posts. Critical issues to resolve the
parties’
dispute in this instance is whether Ms Fadana should
have simply received a certain minimum salary level applicable to the
new
post equivalent of the post she previously occupied, and whether
she ought to have automatically also been appointed to the converted
post created on the staff establishment in alignment with the OSD for
nurses. Even more fundamental is the question of whether
Ms Fadana
occupied post of Chief Professional Nurse on 30 June 2007.
[8]
In his award, the arbitrator considered the
“submissions and arguments” of both parties and came to
the conclusion that
the applicants failed to prove that the employer
had incorrectly interpreted the OSD agreement when it translated Ms
Fadana to
the post of Clinical Nurse Practitioner Grade 1rather than
that of Operational Manager.
[9]
The basis of his decision seems to have
been two-fold. Firstly, he places obvious emphasis on the fact that
Ms Fadana did not immediately
lay claim to the translated salary
grade of Operational Manager, when the OSD took effect in July 2007,
but only did so much later,
after failing to secure the actual post
at the Clinic which was advertised. Secondly, the arbitrator appeared
to accept, at least
implicitly, that the Department had followed a
policy of rotating Chief Professional Nurses in what was then
referred to as the
post of Sister-in-Charge at a clinic. Accordingly,
and again implicitly, if Ms Fadana fortuitously held that position at
30 June
2007, she could not benefit from that timely coincidence
between the implementation of the OSD and her temporary occupancy of
a
post that had been shared with others. For this reason, the
arbitrator then considered the fairness of the appointment process to
the advertised post, which he clearly saw was the appropriate way the
Department should have addressed a post that was previously
held on a
temporary basis by a number of persons.
[10]
Obviously, in reaching this conclusion, the
arbitrator necessarily accepted that Ms Fadana incumbency of the
Sister-in-Charge position
was merely temporary. However, this was by
no means common cause. This is the crux of the applicants’
basis for reviewing
the award. The way the arbitration proceeded was
that, the parties made submissions and then presented argument in
support of their
respective claims. Whether this had been by
agreement or not, it is common cause that the arbitrator failed to
establish a set
of agreed facts on which he could base his decision.
For this reason both parties agree in effect that he made factual
findings
without having heard evidence and therefore without any
basis for doing so. Accordingly, the parties agree the award should
be
set aside for this reason. I agree that the arbitrator committed
misconduct in relation to his duties in failing to make a factual
determination about the status of Ms Fadana’s incumbency in the
post in question. He also failed to hear evidence on her
education
qualifications and why her duties corresponded to that of an
Operational Manager, rather than Clinical Nurse Practitioner
Grade 1.
Moreover, the very nature of the position ‘Sister-in-Charge’
as a post description appears to be contentious.
[11]
I might mention that there does appear to
be a trend in arbitrations on matters of this nature in the public
service, for matters
to be decided on the basis of written
submissions by parties supplemented by oral argument. In principle,
if there is no material
factual dispute, and the matter is just a
question of legal interpretation, such an approach ought to be
encouraged. However, it
cannot be used as a way of avoiding the
onerous task of adducing oral and written evidence where there is a
dispute of fact.
[12]
The results of trying to arrive at factual
findings when there is no agreement on matters of fact reveal
themselves in cases such
as this. If parties wish to simply
submit argument they must agree on what the common cause facts are
and if necessary lead
evidence on those in dispute. That is
what should have happened in this case, where the arbitrator avoided
making critical
findings, such as whether or not Ms Fadana was
occupying the post which was to become that of an Operational Manager
or whether
she was merely temporarily acting in it. It might well be
the case that the parties in this matter could agree on a stated case
but that was not done.
[13]
One factual dispute concerns the correct
status of Ms Fadana’s position when she was Sister-in-Charge at
Empilisweni clinic.
Was it a post that was being circulated amongst
other senior nurses on temporary basis, or was she effectively
occupying the post
as the only
de facto
incumbent, except if she was temporarily absent? Other disputes
concern the correct interpretation and implementation of the OSD
agreement. Thus, if Ms Fadana was the incumbent performing the role
of Sister-in-Charge at Empilisweni Clinic, at the time OSD
was
implemented but was one of a number of Senior Professional Nurses who
had been doing so, ought she have been regarded as ‘occupying
the post’ that was converted into an Operational Manager’s
post? Or, as the Department appears to contend, was her
status in
that post temporary and fortuitous, in the sense that it could just
have well have been one of the other Senior Professional
Nurses who
‘occupied’ it on 1 July 2007 and consequently it would
have been arbitrary to have confirmed her appointment
to the
establishment post by way of translation. Alternatively, are the
requirements for anyone to be appointed to the Operational
Manager’s
post as per Annexure A to the OSD resolution the same, even at the
time of translation, which includes the requirement
that the post
must be advertised? A related issue is what the designation
‘Sister-in-Charge’ actually meant in relation
to pre-OSD
post structures.
In
limine issues raised by the Department
[14]
However, the Department raised two
preliminary points on review, which it says is dispositive of the
review application in its favour.
Firstly, it claims that even though
the dispute resolution procedure of the bargaining council does not
limit the time period within
which an employee may lodge a grievance,
she did so 14 months after the OSD was implemented and on this basis
her application must
be dismissed. The difficulty I have with this
point is that the respondent never took
exception to the applicant’s late
filing of her grievance. Similarly, in so far as an objection based
on a late referral might have raised a jurisdictional issue
vis-a-vis
the arbitration, there is nothing that has been placed before the
court to support this.
[15]
The second
in
limine
issue is that there was a
collective agreement which has the consequence that the applicant was
estopped from declaring a dispute
and waived her right to be
translated. This objection is based on a claim by the third
respondent that a lawful and binding agreement
was reached between
the parties including Ms Fadana herself at a meeting of a so-called
Institutional Management Labour Committee
(‘IMLC’). That
body was established in terms of a collective agreement and creates a
labour management consultative
and negotiation forum at the level of
the Provincial Department of Health, in respect of matters falling
within the jurisdiction
of institutional management (per clause 6.1
of the agreement). Although the decision making process of the IMLC
is slightly obscure,
the employer and union parties have equal votes
(clause 7.6.6) and the normal rules of meeting procedure apply
(clause 7.7.8).
[16]
The basis for the agreement relied on by
the Department is an item in the minutes of the IMLC meeting of 21
November 2008, which
reads:
“
3.8
Hoof van Empilisweni kliniek
Sr Fadana is in
beheer, maar dit sou net ‘n tydelike reeling tussen haar en sr
Sigula gewees he, aflosperiodes van 6 maande
vir elkeen om waar te
neem; maar vir 2 jaar is sr Fadana stteds in beheer van die klinkiek.
Personeel wil weet – is did nou
‘n permanente posisie? E
Majiet verduidelik dat daar eersdagss Operational Managers poste
geadverteer sal word, vir onder
andere Empilisweni kliniek ook.
Personeel ook
ongelukkig omdat al die sr’s in beheer van die kliniek will
wees – hul wil besluit wanneer die Assistente
oortyd/verlof mag
teken.
E Majiet maak dit
baie duidelik dat indien sr Fadana nie beskikbaar / aan diens is nie,
is slegs sr Sigula 2de in bevel. ”
[17]
I
do not think this is evidence of an agreement of any sort. It
indicates that there was unhappiness about the non-circulation
of
nurses in the acting position occupied at that time by Ms Fadana and
management’s clarification of its intention to advertise
the
post. As we know Ms Fadana did in fact apply for the post when
it was advertised in May the following year. In her replying
affidavit she asserted that she never consented to anything as she
was not aware of her rights and certainly never relinquished
any.
In so far as estoppel is alleged, I do not think that based on
management stating its position at that meeting and Ms
Fadana’s
subsequent application for the post, it can be said that she had
agreed that the only basis on which she could lay
claim to the
Operational Manager’s post was if she had succeeded in her job
application. Moreover, if Ms Fadana was unaware
of any entitlement
she might have had under the OSD agreement at the time of this
discussion, she can hardly have been expected
to raise something she
was not aware of. A failure to speak giving rise to estoppel can only
occur if the party which is silent
is aware of the need to raise the
issue to alert the other party to that issue.
[1]
On the limited information before the court, it cannot be said that
Ms Fadana had remained silent knowing that it might give the
impression she accepted that the only path to appointment as an
Operational Manager was through applying for the post if and when
it
was advertised.
[18]
Likewise, it cannot be said that her
failure to speak and subsequent application for the post constituted
a waiver of her right
to seek to enforce the OSD agreement, since
there is no evidence she had full knowledge of her potential claim
based on the
OSD agreement, until after she was unsuccessful. It is
trite law that a person cannot be said to have waived a right that
she had
waived her right to pursue that avenue.
[19]
Consequently, I am not persuaded that the
requirements of estoppel or waiver have been established by the
Department.
Condonation
[20]
The applicant’s review application
was launched some four months’ late which is a considerable
period. The explanation
offered relates to the inability of the
union’s two organisers to cope with the demands placed on them
and on the internal
processes which must be followed before a review
can be instituted. The organiser handling the dispute referred it to
the union’s
legal officer on 14 June 2010, which was still two
week’s before the six week period for filing the review had
been exhausted.
She even telephoned him about the matter when she
discovered the legal officer was on leave. After that she believed it
would be
dealt with properly and assured Ms Fadana likewise. It was
only in October 2010 when dealing with the union’s attorneys of
record on other matters, that she became aware they were not handling
this application. On contacting the legal officer as
to what
had transpired she was told he had not received the documents and
they had to be resent to him. The application was resent
in mid
December 2011.
[21]
While I do not think that the organiser was
dilatory, it is apparent that the legal officer who had been
contacted on the matter
and should have been expecting the papers was
not as diligent as he ought to have been. The explanation is a
poor one, and
as I have mentioned elsewhere, unions and employers
cannot use their labyrinthine or cumbersome procedures as an excuse
for delay.
They must adapt them to the requirements of the LRA not
vice-versa.
[22]
Nonetheless, there was no wilful delay as
far as I can tell and the organiser initiating the matter acted
timeously when she realised
all was not well. Likewise Ms Fadana
reportedly showed her ongoing concern. On the matter of prejudice, it
seems the delay was
not of great concern to the Department which
delayed its own answering affidavit by some months without even
seeking condonation
therefor. Lastly, I accept that the issue is of
some importance to both parties. In the circumstances, the
applicant’s late
filing of the review application is condoned.
[23]
The marginally late filing of the
applicants’ answering affidavit is also condoned.
Conclusion
and relief
[24]
In consequence, I am satisfied the award
should be reviewed and set aside. Although it was suggested by the
Department in argument
that the court could determine the factual
issues on the basis of the affidavits in the review, I do not agree.
[25]
The correct implementation of OSD
translation in this instance will to a significant degree be
determined by the findings of fact,
some of which are identified
above. The parties also did not really get to grips with the
issues of principle that are implicit
in the arbitrator’s
findings but which are vitally important to the proper implementation
of the OSD dispensation. In particular,
the question of whether
translation could only occur if all normal pre-requisites for
occupying a post on the OSD were met or whether,
at the date of
implementing the OSD on 1 July 2007, some requirements such as
successfully applying for the OSD position did not
have to be met.
[26]
Regrettably, contrary to what I had
initially hoped, there simply is not enough in the material before
the court to determine this,
and I must remit the matter back.
Costs
There
is no reason in fairness and equity why the applicant should not be
entitled to its costs in the review application, but not
for those
incurred in relation to its condonation application.
Order
[27]
The arbitration award issued by the second
respondent on 13 May 2010 under case number PSHS 566-09/10 is
reviewed and set aside.
[28]
The matter is remitted to the first
respondent for a new hearing before another arbitrator other than the
second respondent in which
the parties must either agree on a
statement of case, including common cause facts, or evidence must be
led.
[29]
The third respondent must pay the
applicant’s costs excluding those incurred in relation to the
applicant’s condonation
application.
_____________________
R LAGRANGE, J
Judge of the
Labour Court of South Africa
APPEARANCES
APPLICANT:
S Harvey instructed by Chennels Albertyn
FIRST RESPONDENT: J
Van der Schyff instructed by the State Attorney
[1]
See
e.g,
[zRPz]Resisto
Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd
1963 (1) SA 632
(A)
at
642F-643C