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[2014] ZALCCT 62
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Department of Health, Western Cape v SAMA obo Anthony and Others (C817/2012) [2014] ZALCCT 62 (30 October 2014)
IN THE LABOUR COURT
OF SOUTH AFRICA
(
WESTERN
CAPE LABOUR COURT, CAPE TOWN
)
CASE
NUMBER
: C817/2012
DATE
:
30 OCTOBER 2014
In
the matter between:
DEPARTMENT
OF HEALTH, WESTERN CAPE
Applicant
and
SAMA obo
DRS
ANTHONY & MITCHELL
First
Respondent
COMMISSIONER
GOLDMAN N.O.
Second respondent
PHSDBC
Third respondent
J
U D G M E N T
STEENKAMP,
J
:
This
is an application to have an arbitration award of Commissioner Bella
Goldman, dated 12 May 2012, reviewed and set aside.
The
applicant, the Department of Health of the Western Cape, has a
significant prior hurdle to overcome and that is the question
of
condonation.
In terms of the
Labour
Relations Act 66 of 1995
an applicant for review must file such an
application within six weeks.
The
applicant in this case delivered its application for review three and
a half months after that generous period of six weeks
had already
expired.
Mr
Van
der Schyff, for the applicant,
attempted to argue that that is not an excessive delay. I
disagree. It is more than double
the generous period already
provided for in the legislation. It is clearly excessive.
What the Court then has to consider,
keeping in mind the test set out
in
Melane v Santam Insurance Company
Limited
1962 (4) SA 531
(A), are the
reasons for the delay.
What is startling is that
the Department, and more specifically the Director of Labour
Relations in the Department who directly
deals with applications of
this sort, already received the award on 22 May 2012 and according to
him or her -- the person is unnamed
and did not depose to a
confirmatory affidavit -- formed the view that the award was
reviewable. He or she then referred
the matter to the legal
services department of the Office of the Premier a week after he or
she received the award, namely on 30
May. The director says
that there is a “protocol” in terms of which all matters
requiring legal intervention
must be referred to that department.
He or she does not explain what caused the initial delay of a week
before referring
the matter to that department.
The
department of legal services then took another two weeks to provide
the Director of Labour Relations with a written opinion
on 14 June
2012, forming the opinion that the matter could be taken on review.
The
deponent to the founding affidavit, Mr Feizal Rodriques, is the
Deputy Director of Labour Relations in the Department of Health.
He says in his affidavit that the opinion from the legal services
department of the Office of the Premier came to the attention
of one
of the deputy directors on 14 June. He does not say who that
deputy director is, whether he is referring to himself,
and if he is
referring to someone else, he does not attach a confirmatory
affidavit.
Be
that as it may, that deputy director then waited for another week
before instructing legal services -- the very department that
had
already provided the opinion -- on 21 June 2012 to bring the
application for review. However, nothing further happened
until
Rodrigues received a case file from one of his colleagues who left,
Mr Duma, as he says “in or about the end of June
2012”.
He does not say when. Rodrigues had requested a status report from
legal services in “mid June”,
i.e. before Duma left.
However,
he only received that report “at or about the end of July
2012”. That further delay of more than a month
is
entirely unexplained. Rodrigues then says that he “noticed”
that this dispute, i.e. the one involving Doctors
Anthony and
Mitchell, was not in his disputes register and he requested the file
and “saw for the first time when I received
it in mid-August
2012” that not only had the Department not applied for review,
it had not opposed the doctors’ application
to have the award
in their favour made an order of court.
That
further delay is also not explained, but what is even more startling
is that Mr Rodrigues, who is a deputy director of labour
relations
and must be well acquainted with the provisions of the
Labour
Relations Act, then
does absolutely nothing for another month until
18 September 2012.
This
gross negligence is not explained at all. Only then does
Rodrigues sent an email to legal services “requesting
advice on
progress”. There is then a further two week delay until 1
October 2012 that is also unexplained, when “Legal
Services
eventually instructed the State Attorney to bring an application to
have the award reviewed and set aside.”
“Eventually”
is indeed the operative word. By this time the
dies
for launching the application had already expired on 3 July, i.e. 3
months before.
Yet
the State Attorney takes another 3 weeks until 25 October to deliver
a simple application for review on a stated case where
no evidence
was led, dealing only with the interpretation of a short and simple
collective agreement and comprising all of 12 pages.
The State
Attorney and the applicant provide absolutely no explanation for that
further delay.
This
dilatory and negligent inaction on the side of Government departments
and of the office of the State Attorney in Cape Town
in particular
has attracted the attention of the Constitutional Court before, in
Grootboom v National Prosecuting
Authority
[2014] 1 BLLR 1
(CC). As the
highest court in the land pointed out in that case, the applicant
seeking an indulgence in that matter -- as it is
in this case -- is
no ordinary litigant. It is a Government department which can
be expected to lead by example. Legal
proceedings on behalf of
the department are funded by the taxpayer. The department can
be expected to assist and to protect
the courts by instituting
practices which ensure compliance with the rules of Court. In matters
of employment law it can be expected
to promote the underlying
principle of expeditious dispute resolution. Yet, it appears
that that stern admonition by the
highest court in the land has
fallen on death ears as far as this Department, the Office of the
Premier of the Western Cape and
the State Attorney are concerned.
The delay is excessive and the explanation therefor is so poor as to
be non-existent, other
than attributing blame to the gross negligence
of the Department, its officials, the officials of the Office of the
Premier and
the State Attorney.
As the
Labour Appeal Court has pointed out in
Maila
v Shai N.O.
[2007] 5 BLLR 432
(LAC) at
paragraphs 35 to 37, in the absence of a compelling explanation, it
is not even necessary to consider the applicant’s
prospects of
success on review. But in any event, the Department’s prospects
of success on review in this application are
so poor as to be
non-existent.
Mr
Van
der Schyff
’s main argument before
Court this morning is that the arbitrator should have called for
further evidence; but the parties
before the arbitration, both of
whom were represented, specifically agreed that the matter would be
decided on the papers in terms
of legal argument.
The dispute before the
arbitrator was the interpretation and application of a collective
agreement in terms of
section 24
of the LRA. That collective
agreement is resolution 3 of 2009, the Occupation Specific
Dispensation for medical officers,
medical specialists, oncologists,
pharmacists and emergency care practitioners.
That
is exactly the dispute that the arbitrator was called upon to decide,
and that is the dispute that she did decide by agreement
between the
parties and, as she is enjoined to do by
section 138
of the LRA, with
the minimum of legal formalities and in the interest of expeditious
dispute resolution. There is absolutely nothing
unreasonable about
that.
The
further question to ask, nevertheless, is whether the conclusion that
she reached is one that a reasonable arbitrator could
reach. It
undoubtedly is. She had regard in detail to the common cause
facts before her, to the provisions of the OSD
agreement and to the
question that served before her. Taking all of those into account,
she properly interpreted the provisions
of the agreement and she came
to a reasonable conclusion.
Given
the poor prospects of success, the excessive delay occasioned by the
applicant in this matter and the poor explanation therefor,
it should
have been advised not to bring this application belatedly as it did.
This
matter should never have served before the Court. Both parties
asked for costs to follow the result. There is no
reason in law
or fairness not to accede to that request.
THE
APPLICATION FOR CONDONATION -- AND THUS THE APPLICATION FOR REVIEW --
IS DISMISSED WITH COSTS.
___________________________
STEENKAMP,
J
APPEARANCES
APPLICANT:
Jerome van der Schyff
Instructed
by:
The State Attorney, Cape Town.
FIRST
RESPONDENT: Suzanna Harvey
Instructed
by:
Hogan Lovells (SA), Sandton.