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[2014] ZALCCT 46
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Department of Health v Jones and Another (C340/07) [2014] ZALCCT 46 (18 June 2014)
IN THE LABOUR COURT
OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE
NO: C340/07
In the matter
between:
THE
DEPARTMENT OF
HEALTH
APPLICANT
and
DR
L
JONES
1
ST
RESPONDENT
PUBLIC HEALTH AND
WELFARE
SECTORAL
BARGAINING
COUNCIL
2
ND
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
The applicant seeks an order to have
the settlement agreement, concluded between it and the first
respondent, under the auspices
of the second respondent set aside.
The agreement was concluded prior to the conclusion of the
arbitration hearing which was scheduled
for a hearing by the second
respondent under case number PSHS 283-06-07.
Facts
which gave rise to the application
[2]
The first respondent, Dr Jones, who was
employed as a doctor by the plaintiff, was charged for making
disparaging remarks about
other doctors to Dr Rowe, Head of
Orthopaedics at the Victoria Hospital. She is alleged to have told Dr
Rowe that doctors falling
under his management who were also her
colleagues were incompetent. She is alleged to have said that these
doctors were “
decreasing
competence and [a] slack attitude “towards their Surgical
responsibilities.”
These
allegations were also copied to other doctors at the Groote Schuur
Hospital.
[3]
The outcome of the disciplinary hearing was
that the first respondent was found guilty and issued with a
suspension of 3 (three)
months which was later reduced on appeal to 2
(two) months without pay. The first respondent was unhappy with
the out come
of the disciplinary hearing and accordingly declared an
unfair labour practice dispute with the second respondent.
[4]
The arbitration proceedings which were
subsequently convened by the second respondent were adjourned after
the first respondent
presented her evidence in chief to afford the
parties the opportunity to discuss a possible settlement. Because of
the agreement
the hearing did not proceed any further. In terms of
the agreement the parties agreed as follows:
“
1.
The findings of the disciplinary hearing of 18 September 2006 that Dr
Jones is guilty of misconduct and that a sanction of two
months’
suspension without pay coupled with a final written warning should be
imposed is hereby set aside in its entirety;
2.
The employer will compensate Dr Jones in an amount equivalent to
two-and-a half month’s of her remuneration, being R87
500 00
less allowable deductions for income tax, such amount payable before
12 April 2007 into her bank account;
3.
The parties agree not take any further action in pursuing this
matter.
4.
Dr Jones agrees to have no further contact with the medical officers
concerned except in so far as her professional responsibilities
may
require;
5.
Dr Jones agrees to write [to] each of the medical officers concerned,
namely Drs Garret, Paton and McIntyre a letter in the form
set out in
Annexure “A”.
6.
This agreement ids made in full and of this final settlement of this
dispute.”
[5]
The complaint that gave rise to the present
action arose on the 15 March 2007, when the first respondent attended
at Victoria hospital
to prepare for her final departure from the
hospital and as part of her farewell she was invited to tea and cake.
[6]
The plaintiff’s complaint is that the
first respondent in breach of the agreement made certain defamatory
remarks during the
“farewell tea” against certain doctors
who are based at the Victoria hospital. In terms of the founding
affidavit the
first respondent is alleged to have said that:
“
23.1
She (the First Respondent) had a pile of patient’s files with
examples of how they had been mismanaged by the Hospital;
23.1
The Medical Superintendent (i.e. the deponent) had ignored evidence
of medical mismanagement.
23.3
The deponent is an “f…,” and “idiot.”
[7]
In addition to the above the first
respondent is accused of having said that the effect of the agreement
between her and the plaintiff
was that the outcome of the
disciplinary hearing was overturned and that the plaintiff was
ordered to compensate her.
[8]
The other complaint of the plaintiff is
that the first respondent’s sister, who was present at the
arbitration hearing and
the conclusion of the agreement, sent an
e-mail to a certain Yvonne Everett setting out what was supposed to
have happened at the
arbitration hearing and its outcome. The e-mail
was also copied to the first respondent and her husband. The first
respondent then
copied the same e-mail to a number of other persons
including institutions.
[9]
The deponent of the founding affidavit, Dr
Stokes and head of the Victoria hospital, became aware of the
contents of the e-mail
after it was emailed to her by Dr Martini.
After reading the contents of the e-mail, Dr Stokes came to the
conclusion
that the first respondent “
had
exceeded all reasonable boundaries placed on the settlement reached
in good faith earlier on 14 March 2007.”
Dr
Stokes further concluded that :
“
The
fact of the matter was that the First Respondent had committed the
same misconduct which had originally resulted in her being
disciplined and that in the circumstances it could not be said that
the First respondent was acting in good faith and in accordance
with
the terms of the settlement reached.”
[10]
It was on the basis of the above that Dr
Stokes, acting in her capacity as head of the plaintiff, refused to
implement the terms
of the agreement and sought to have the agreement
set aside.
Evaluation
[11]
The case of the plaintiff is in my view
unsustainable on two grounds.
[12]
In the first instance the first respondent
in her answering affidavit state that the agreement had been made an
award in terms of
s142A of the Labour Relations Act 66 of 1995 (the
Act). This has not been disputed by the plaintiff.
[13]
In terms of s142A of the Act, the
commissioners of the CCMA or panellists of bargaining councils have
the power to make any settlement
agreement in respect of any dispute
that has been referred to the CCMA or the bargaining council an
arbitration award.
[14]
In my view, once an agreement is made an
arbitration award, as is the case in present instance, it acquires
the status of an arbitration
award and can be enforced in terms of
s143 of the Act or made an order of the Court in terms of s158 of the
Act. In other words
an agreement that has been made an arbitration
award attracts the same effect as those wards envisaged in s143 of
the Act, in that
such an award is final and binding and can be
enforced in terms of the same section or s158 of the Act.
[15]
It would seem to me that there are at least
two ways in which the original settlement agreement that has now been
made an arbitration
award can be set aside. To revert back to its
status of being an agreement the plaintiff needed to either apply for
the rescission
of the award in terms of s144 or review it in terms of
s145 of the Act. It therefore means that until such time that the
arbitration
award was either rescinded in terms of s144 or reviewed
and set aside in terms of s145 of the Act, the Court does not have
jurisdiction
to set aside the settlement agreement that gave rise to
the arbitration award. It is therefore my view that the plaintiff’s
claim stands to be dismissed on this ground alone.
[16]
The claim would still stand to be dismissed
on its merits even if the issue of the status acquired by the
agreement was to
be disregarded. The essence of the case of the
plaintiff is that the first respondent acted in bad faith in
disclosing the contents
of the agreement to other people.
[17]
I agree with Mr Woolfrey, for the first
respondent when he argued that the requirements of good faith entail
both the conclusion
of the agreement and the execution thereof. He
further argued that good faith when applicable to the execution of
the obligations
under the contract; it has to do with the agreed
terms.
[18]
It has been held in those authorities
relied upon by Mr Woolfrey that
good
faith or bona fides
has deep roots in
the South African mixed legal system. See
Miller
and Another NNO v Dannecker 2001 (1) 928 at 938 A-G
and
Eeste Nationale Bank van Suid
Africa Bpk v Saayman NO
[1997] ZASCA 62
;
1997 (4) SA 302
(SCA) at 321-2.
[19]
In
Eeste
National Bank (supra)
Olivier JA
held that there was a close connection between the concepts of good
faith, public policy and public interest in the
process of concluding
a contract or for that matter an agreement. Ntsebeza AJ in
Miller
(supra)
held that the reason for
this is because the function of good faith has always been to give an
expression in the law of contract
to the community’s sense of
what is fair, just and reasonable.
[20]
In
Tuckers
Land and Development Corporation (Pty) Ltd v Hovis
1980 (1) SA 645
(at 625 D-G ),
Jansen JA is quoted
by Ntsebeza AJ in
Miller
(
supra)
with
approval as having said:
“
It
should therefore be accepted that in our law an anticipatory breach
is constituted by the violation of an obligation ex lege,
flowing
from the requirement of bona fide which underlies our law of
contract.
[21]
The approach followed by Ntsebeza AJ in
Miller (supra)
is
the same as that which was followed, in
Standard
Bank of SA LTD v Prinsloo (Prinsloo Intervening)
2000 (3) SA 576
,
where the Court held that a measure
of fairness and reasonableness must be incorporated into the
principles on which contractual
liabilities are based. In that case
in dealing with the issue of good faith in contracts, Davis J said:
“
Not
only should this principle of good faith apply when performance is
made when rights under the contract are exercised, but it
should
infuse the entire process by which a contract is concluded.”
[22]
In the present instance the complaint about
non compliance with the requirements of good faith by the first
respondent is based
on the publication of the agreement and
projecting it as victory for herself. The second basis of the
complaint is that the first
respondent made adverse comments about Dr
Stokes and other managers.
[23]
In my view there is firstly no evidence
showing that the first respondent entered into the agreement with the
ulterior motive of
ultimately disclosing the contents of the
agreement or misrepresented to the plaintiff that he would not
disclose to any one the
contents of the agreement. There is also no
evidence connecting the comments made by the first respondent to the
terms of the agreement.
There is further no evidence that the
agreement expressly or by implication prohibited publication of its
terms and conditions.
[24]
The submission that it was an oversight not
to include a term prohibiting the publication of the contents of the
agreement does
assist the case of the plaintiff, particular if regard
is had to the fact that both parties were legally represented during
the
drafting of the agreement. In any case if indeed this was the
intention of the plaintiff, it never sought to amend the agreement
to
include a term prohibiting the publication thereof.
[25]
In terms of the agreement it is evidently
clear what duties were imposed on the first respondent by the
agreement. The first was
that she would not take further steps in
pursuing her unfair labour practice dispute. She is secondly
prohibited to have any contact
with the three medical officers who
were affected by the allegations she had made and which resulted in
the disciplinary action
taken against her. And finally the first
respondent was required to write a letter in an agreed format to the
three medical officers.
[26]
It is not the case of the plaintiff that
the first respondent has failed to comply with any of the above terms
and conditions of
the agreement. There is thus, no basis upon which
this agreement could have been set aside even if its legal status had
not changed
to that of an arbitration award.
[27]
In the circumstances of this case I see no
reason in law or fairness why costs should not follow the results. I
agree with the first
respondent that not only was the application
misconceived but that it also has strong elements of being frivolous
and vexatious.
The application was brought four months after the
conclusion of the agreement and as stated earlier there is nothing
that links
the publication made by the first respondent to the terms
and conditions of the agreement. There is also no evidence linking
the
statement publicising the agreement to the three medical officers
referred to in the agreement. Had the first respondent sought
punitive costs, I would have not hesitated to grant the same.
[28]
The first respondent indicated in her
answering affidavit that she intended filing an application to have
the arbitration award
made an order of Court to be heard at the same
time with this application but such application was never filed.
[29]
In the premises the application is
dismissed with costs.
_______________
Molahlehi J
DATE
OF HEARING: 26 MARCH 2008
DATE
OF JUDGMENT: 18 JUNE 2008
Appearances
For
the Plaintiff: Adv. Schyff
Instructed
by: Colleen Bailey Attorney
For
the Respondent: Adv. Caiger
Instructed by :
David Woolfrey Attorneys.