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[2015] ZALCJHB 223
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South African Medical Association obo Pietz v Department of Health - Gauteng Province and Others (JR 2343/12) [2015] ZALCJHB 223 (29 July 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no JR 2343/12
DATE:
29 JULY 2015
Not
Reportable
In
the matter between:
SOUTH
AFRICAN MEDICAL ASSOCIATION OBO
DR
GRZEGORC LUDWICK
PIETZ
.....................................................................................
Applicant
And
DEPARTMENT
OF HEALTH - GAUTENG
PROVINCE
...................................................................................................................
First
Respondent
ADVOCATE
RONNIE BRACKS
N.O
...................................................................
Second
Respondent
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
BARGAINING
COUNCIL
........................................................................................
Third
Respondent
Date
heard: 9 January 2015
Date
delivered: 29 July 2015
JUDGMENT
RHOODIE
AJ,
Introduction
[1]
This matter concerns an opposed application to review and set aside
an arbitration award of the Second Respondent made under
case number
PSHS642-09/10.
[2]
This application has been brought in terms of Section 145 of the
Labour Relations Act (‘the LRA’).
[3]
The Applicant was dismissed by the First Respondent for alleged
misconduct committed on 25 November 2009. The Applicant then
referred
his dismissal as an unfair dismissal dispute to the Third
Respondent.
[4]
The Second Respondent determined that the dismissal of the Applicant
was substantively fair, but procedurally unfair. He further
determined that the Applicant was not entitled to any compensation.
Background
[5]
The Applicant was employed as a medical doctor and obstetrician at
South Rand Hospital.
[6]
The charges relate to an incident that occurred while he was on duty
during the night of 25 November 2009.
[7]
The 1
st
Respondent alleged that the Applicant did not
respond with the required urgency to a call made to the Applicant
that a pregnant
mother needed urgent attention, as she, amongst
others, presented a prolapsed cord.
[8]
The child was pronounced dead at birth and the matter revolves around
the actions / omissions of the Applicant during the night
of 25
November 2009 and whether he was grossly negligent in his conduct.
[9]
As a result of the alleged misconduct, the Applicant was dismissed by
the 1
st
Respondent on 1 December 2009, without following a
proper disciplinary process.
Arbitration Award
[10]
The Commissioner in his “analysis of evidence and argument”,
dealt with the legal principles applicable to this
matter, amongst
others, the burden of proof, the role of the Commissioner and
substantive and procedural fairness.
[11]
The Commissioner specifically dealt with and considered the;
i.
Legal interpretations applicable in determining gross negligence and
poor work performance respectively.
ii.
Evidence presented and specifically the issue of whether the midwives
conveyed the news of the prolapsed cord to the Applicant
and if so,
whether the Applicant failed to respond with the necessary urgency.
[12]
The Commissioner weighed up the conflicting versions of the evidence
as presented and led by the parties. The Commissioner
clearly
considered the evidence of the only expert, namely Dr. Buchmann,
called to give evidence by the Applicant.
[13]
Against this background, the Commissioner set out and evaluated the
actions of the Applicant during this incident and also
considered
evidence presented on the Applicant’s behavior in general.
[14]
The Commissioner then reached the conclusion, having made reference
to legal authorities and case law that the First Respondent
“has
discharged the onus of showing that the Applicant had acted in a
reckless and uncaring manner with regard to the patients
entrusted to
him and that he was grossly negligent in his actions”.
[15]
The Commissioner, however, found the Applicant not guilty on the
alleged charge of insolence. He then addressed the issue of
sanction
and considered whether dismissal was the appropriate sanction, both
from the perspective of the Applicant’s own
circumstances
(professional and personal), as well as from a labour law /
progressive discipline perspective.
[16]
Amongst others, the Commissioner then considered case law pertaining
the principles of trust and the appropriate test for an
Arbitrator
when considering whether to interfere with a sanction imposed by the
employer, or not.
[17]
The Commissioner further dealt with the Applicant’s allegation
that the First Respondent had acted inconsistently in
dealing with
similar offences. The Commissioner found that the Applicant failed to
provide convincing evidence to substantiate
the claim of
inconsistency.
[18]
The Commissioner then addressed the Applicant’s claim of
procedural unfairness. The Commissioner comes to the conclusion
that,
although the 1
st
Respondent had provided the Applicant
with an opportunity to address it on the events in question and the
Applicant had failed
to make use of that opportunity, the
First
Respondent failed to apply the required fair procedure in dismissing
the Applicant. Flowing from that conclusion, the Commissioner
then
grappled with the discretion that he has in terms of section 193, as
to whether he should grant the Applicant compensation
for this
procedural unfairness.
[19]
The Commissioner stated as follows in paragraph 40 of the award:
‘
When
the gross negligence of the applicant is considered it is clear that
it would be difficult for me to justify granting compensation……
during the Arbitration the Applicant also failed to show any
remorse’.
[20]
In light of the above, the Commissioner concluded that the Applicant
should not be compensated for the procedural unfairness.
[21]
The Commissioner’s approach and mindset in his assessment and
evaluation of the evidence pertaining to procedural and
substantive
fairness are clearly reflected in the award. In summary the
Commissioner dismissed the Applicant’s unfair dismissal
case.
Grounds for
Review
[22]
In essence, the Applicant raised the following grounds of review as
set out in the papers:
[23]
The commissioner failed to apply his mind or committed a gross
irregularity in that he:
[24]
Failed to grant the Applicant compensation for the procedural
unfairness –referred to as the “First Aspect”
[25]
Considered irrelevant evidence before him and may have reached an
overall decision that a reasonable decision maker could not
have
reached – referred to as the “Second Aspect”.
[26]
Failed to properly consider the evidence before him and reached an
overall decision that a reasonable decision maker could
not have
reached - referred to as the “Third Aspect”.
Test for Review
[26]
The test that this Court must apply in deciding whether the
Commissioner’s decision is reviewable, has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
a
s:
‘
Whether
the conclusion reached by the arbitrator was so unreasonable that no
other arbitrator could have come to the same conclusion’.
[27]
The Constitutional Court clearly held that the Commissioner's
conclusion must fall within a range of decisions that a reasonable
decision maker could make.
[28]
In the
decision
of
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[2]
,
the
Supreme Court of Appeal held that:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(2)(a), the arbitrator
must have misconceived the nature of the enquiry or arrived
at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach on all
the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached to particular
facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their effect is
to render the outcome
unreasonable’.
[29]
In the subsequent judgment of
Goldfields
Mining South Africa (Kloof Mine) v CCMA and others
[3]
,
the
Labour Appeal Court held that:
‘
In
short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is
reasonable’.
[30]
It is in view of this test that the Applicant’s grounds for
review must be assessed.
[31]
The position of the Labour Appeal Court clearly reflects that in the
event that the arbitrator ignored material evidence, and
in
considering this material evidence together with the case as a whole,
the Review Court believes that the arbitration award cannot
now be
reasonably sustained on any basis, then the award would be
reviewable.
[32]
In considering this approach, the first step in a review enquiry is
to consider and determine if a material irregularity indeed
exists. A
Review Court determines whether such an irregularity exists by
considering the evidence before the Commissioner as a
whole, as
gathered from the record and comparing this to the content of the
award and reasoning of the arbitrator as reflected
in such award.
[33]
The Review Court must then proceed to apply all the relevant legal
principles in order to determine the content that the Commissioner
considered to constituted proper evidence.
[34]
Should the Review Court, in conducting this enquiry find that no
irregularity exists in the first instance, the matter is at
an end
and no further determinations need to be made and the review must
fail.
[35]
This position is clearly reflected in
Surgical Innovations (Pty)
Ltd v Commission for Conciliation, Mediation and Arbitration and
Others (D290/2012) [2014] ZALCD 3 (13
February 2014)
, where the
Labour Court summarised the review process and held the following:
[20] .... Once an
irregularity is identified, the materiality of the irregularity then
becomes relevant and must be considered.
This means that the
irregularity committed by the arbitrator must be a material departure
from the acceptable norm or a material
deviation from the actual
evidence before him or a material departure from the proper
principles of law or a material failure to
consider and determine the
evidence or case, in order to constitute an irregularity of
sufficient magnitude to satisfy this first
step in the enquiry. If
the review court in conducting this first step enquiry should find
that no irregularity exists in the first
instance, the matter is at
an end, no further determinations need to be made, and the review
must fail.
[21] Should the
review court however conclude that a material irregularity indeed
exists, then the second step in the review test
follows, which is a
determination as to whether if this irregularity did not exist, this
could reasonably lead to a different outcome
in the arbitration
proceedings. Put differently, could another reasonable
decision-maker, in conducting the arbitration and arriving
at a
determination, in the absence of the irregularity and considering the
evidence and issues as a whole, still reasonably arrive
at the same
outcome? In conducting this second step of the review enquiry, the
review court needs not concern itself with the reasons
the arbitrator
has given for the outcome he or she has arrived at, because the issue
of the arbitrator’s own reasoning was
already considered in
deciding whether an irregularity existed in the first part of the
test.
[36]
The pertinent question is therefore, whether another reasonable
decision-maker, in conducting the arbitration and arriving
at a
determination, in the absence of the irregularity and considering the
evidence and issues as a whole, could still arrive at
the same
outcome?
[37]
The test is thus whether the award falls within the boundaries of
reasonableness. For this Review Court to interfere with the
Commissioner’s award would therefore mean that the Review Court
would need to find that the Commissioner had been unreasonable
in his
finding.
[38]
The LAC in
Bestel
v Astral Operations Ltd and Others
[4]
summarised the test for review as follows:
‘
It
is important to emphasise…that the ultimate principle upon
which a review is based is justification for the decision as
opposed
to it being considered to be correct by the reviewing court; that is
whatever this Court might consider to be a better
decision is
irrelevant to review proceedings as opposed to an appeal. Thus, great
care must be taken to ensure that this distinction,
however difficult
it is to always maintain, is respected.’
[39]
It is prudent to mention that errors of fact by a Commissioner,
specifically in respect of facts that he is empowered to determine
(such as findings of fact on the probabilities), will not usually
give rise to a valid ground of review. This point of law is mentioned
by the Supreme Court of Appeal in
Dumani
v Nair and Another
[5]
below:
[29]
… 'Recognition of material mistake of fact as a potential
ground of review obviously has its dangers. It should not
be
permitted to be misused in such a way as to blur, far less eliminate,
the fundamental distinction in our law between two distinct
forms of
relief: appeal and review. For example, where both the power to
determine what facts are relevant to the making of a decision,
and
the power to determine whether or not they exist, has been entrusted
to a particular functionary (be it a person or a body
of persons), it
would not be possible to review and set aside its decision merely
because the reviewing Court considers that the
functionary was
mistaken either in its assessment of what facts were relevant or in
concluding that the facts exist. If it were,
there would be no point
in preserving the time-honoured and socially necessary separate and
distinct forms of relief which the
remedies of appeal and review
provide.'
[33]
For these reasons, even if there were a misdirection by the presiding
officer in
regard
to the evidence of Claassen, the convictions would not be reviewable
on the ground of material error of fact, nor under the
guise of the
provisions of
s
6(2)
(e)(iii)
of PAJA, viz 'because irrelevant considerations were taken into
account or relevant considerations
were not considered'. That leaves the following grounds of review
relied upon by the appellant, namely that the presiding officer
acted
arbitrarily (based on
s
6(2)
(e)(vi)
of PAJA) and that the presiding officer's decision was so
unreasonable that no reasonable person could have reached it (based
on
ss
6(2)
(f)(ii)(cc)
and (h) of PAJA). (The alleged misdirection to which I have referred
would be relevant, if established, to the latter
ground in
considering whether, on the facts before the presiding officer as
disclosed in the record, no reasonable person could
have found the
appellant guilty.) These grounds are dealt with in the judgment of my
colleague Theron JA in whose judgment I concur.’
[40]
The general approach applied by this Court is that grounds for review
based on the treatment and assessment of evidence by
a Commissioner,
will not in themselves constitute separate grounds of review to be
determined independently from the result.
Analysis
[41]
An analysis of the Applicant’s grounds for review reflects that
the Applicant seeks to rely on a number of alleged errors
made and
gross irregularities committed by the Commissioner.
I
will now deal with the Applicant’s grounds of review relating
to the findings of the Commissioner as set out in the papers.
For
ease of reference, I will use and follow the same structure as the
Applicant in its application.
THE
FIRST ASPECT
[42]
The Applicant raised the fact that the Commissioner erred in finding
that relief was not due to the Applicant despite the finding
of
procedural unfairness and in exercising said discretion, committed a
reviewable irregularity.
[43]
The Applicant based its argument on the premises that the
Commissioner bound himself to obsolete legal principles in that he
followed the dictum of the Labour Appeal Court in the 1997 matter of
CWIU
v Johnson & Johnson Pty Ltd
.
The 1
st
Respondent countered in stating that this argument was not raised in
the Applicant’s founding and replying affidavits. Although
the
Court accepts that this issue was not specifically raised, it is
sufficiently clear
from the Applicant’s papers that he had an issue with the
outcome related to the procedural fairness. In light thereof, it
will
be allowed and also due to the principle that this Court is obliged
to consider points of law that are apparent from the papers.
[6]
[44]
At the heart of this aspect is the Commissioner’s discretion to
award compensation
for procedural unfairness. The discretion is
evident from the use of the word “may” in section 193 of
the LRA and the
omission of the word “must”. “Must”
is, however, utilized further on in that section and it can be safely
deduced that the legislator elected to provide a discretion to the
Commissioner.
[45]
This specific discretion is a two stage enquiry. Firstly, one must
consider whether
compensation should be awarded, and only if the
response be positive, the Commissioner has the discretion to decide
the appropriate
monetary amount of compensation limited, as per
section 194, to twelve months remuneration.
[46]
It is my opinion that despite the finding that dismissal was
procedurally unfair, the Commissioner properly considered his
discretion whether to grant compensation or not. I agree with the
Commissioner’s finding that “an employee party that
was
unfairly dismissed does not have an automatic right to relief”.
It is correctly argued by the Applicant that this Court
must deal
with the discretion, in a manner similar to an appeal and not in
terms of the normal review test. In the case of
Kukard
v GKD Delkor (Pty) Ltd
[7]
,
the following is relevant:
‘
[28]
….
Concurring, Zondo
JP (as he then was) held specifically in relation to the exercise of
the discretion under s193(1)(c) of the LRA,
that the “ultimate
question” that the Labour Court or arbitrator has to answer in
determining whether compensation
should or should not be granted is
which one of the two options would better meet the requirements of
fairness having regard to
all the circumstances of the case? He said
that when a court or arbitrator decides this issue, it does not
exercise a true or narrow
discretion but rather passes a moral or
value judgment on the basis of the requirements of fairness and
justice. It is important
to recognise that the Sidumo
(reasonableness) test does not apply to a review of a compensation
award made by a commissioner in
terms of s193(1)(c) of the LRA. This
is a mistake commonly made by counsel and judges alike. What the
reviewing court is required
to do is to evaluate all the facts and
circumstances that the arbitrator had before him or her, and then
decide based on the underlying
fairness to the both the employer and
employee whether the decision was judicially a correct one’.
[47]
Having evaluated all the facts and circumstances as set out in Kukard
supra
, I concur with the Commissioner’s decision not to
award compensation. I do, however recognize the danger of allowing an
employer
to escape the consequences of not following a fair process
and don’t come to my decision lightly. The circumstances of
this
matter do, however, allow for such a drastic departure from the
norm, as the alternative of awarding compensation would not pass
the
“moral and value judgment test” as also stated by Zondo
JP. The Commissioner’s decision to acknowledge the
procedural
unfairness of the dismissal does provide a balance in that the
fundamental principle of procedural fairness remains
intact and
recognized.
[48]
Furthermore, it was argued by the 1
st
Respondent that the
Applicant raised a new argument in its Heads of Argument at
paragraphs 4.4 – 4.19 and 4.26 – 4.27.
[49]
After careful consideration of the aforementioned paragraphs, I
concur that an additional argument was indeed raised.
[50]
However, from the award it is my opinion that the Commissioner did
not base his discretion on the grounds as alleged by the
Applicant.
Accordingly, the Commissioner correctly utilized the factors listed
in the case of Kemp
supra,
as
reflected in his award in paragraph 39.
[8]
[51]
The 1
st
Respondent’s approach to the interpretation
of section 193 and 194 of the LRA as set out in its Supplementary
Heads of Argument
is deemed by this court to be the correct
approach. As stated
supra
, the use of the word “may”,
clearly reflect the intention to provide the commissioner with
discretion and surely the
exercise of that discretion
per se
can then not be faulted.
[52]
From a reading of the award and in particular considering the
structure of the Second Respondent’s
“deliberations”
on this aspect, it is apparent that the referral to the Johnson
matter is made in context of the first
stage of the discretion
enquiry (as explained
supra
). The Commissioner is
clearly awake to the then current LAC position vis-a-vis section 193
(Dr D.C. Kemp t/a Centralmed v
M.B. Rawlins) and then in particular
with the principle that “an employee party who was unfairly
dismissed does not have
an automatic right to relief and that in
deciding whether or not to grant compensation in such circumstances
the following factors
needed to be considered.”
[53] The
First Respondent argued that the Applicant’s gross negligence
must be considered by
the Commissioner in determining whether to
grant compensation or not. I agree with this argument as gross
negligence falls within
the facts and circumstances before the
Commissioner.
[54] I
am not convinced by the Applicant’s argument that the
Commissioner erred in his approach to
the legal issue at hand
(flowing from the exercise of his discretion) As stated
supra,
I do not find reason to review the Commissioner’s decision on
this aspect.
SECOND ASPECT
[55]
The Applicant contends that the Commissioner committed a gross
irregularity by considering irrelevant evidence before him and
the
Commissioner reached an overall decision that a reasonable decision
maker could not have reached.
[56]
The Applicant states that the Commissioner considered previous
incidents for which the Applicant was not disciplined and should
therefore have ignored these previous incidents for purposes of this
award.
[57]
The 1
st
Respondent, in response, points out that the Commissioner correctly
in the award identifies the issue in dispute as being “whether
or not in the case of the patient Hlatshwayo the Applicant was aware
of the prolapsed cord”.
[9]
[58]
The Commissioner further qualified this by stating “when all of
this is considered the only reference that can be made
is that the
Applicant’s management of patient Hlatshwayo was extremely
careless and reckless”.
[10]
[59]
I am not convinced that the Commissioner erred in his finding by
considering these mentioned previous incidents in evaluating
the
Applicant’s general conduct. From the award it is clear
that the Commissioner had a clear understanding of what
the main
issues in dispute were.
[60]
The Respondent convincingly argues that the only conclusion that may
be drawn from the Commissioner’s mention of “other
incidents” is that he considered same in relation to the
Applicant’s conduct
vis-a-vis
the other staff and his
attitude in general.
[61]
In my opinion the Commissioner’s primary focus was on the issue
of the Hlatshwayo incident and that formed the basis
of his decision.
[62]
It must be noted that from the record it does not appear that the
Applicant raised any objection to these incidents being dealt
with
during the arbitration.
[63]
In light of the above, and in considering the above extracts in
context of the award, I am firstly not convinced that an irregularity
exists and secondly, to the extent that the consideration by the
Commissioner of the other incidents might be considered to be
to some
degree irregular, I’m not of the opinion that it impacted on
the reasonableness of the final decision.
THIRD
ASPECT
[64]
The Applicant contends that the Commissioner committed a gross
irregularity by not properly considering the evidence
before
him, failed to consider causation and wrongly considered the expert
evidence of Buchmann and as a result the Commissioner
reached an
overall decision that a reasonable decision maker could not have
reached.
[65]
Various elements were dealt with under this contention and I have no
intention of repeating the arguments presented, but merely
wish to
point out a number of salient points on the various arguments raised.
It is also with caution that the various topics under
this aspect are
dealt with as the proverbial individual pieces of the puzzle, for the
test remains based on the complete puzzle
as presented to the Second
Respondent for adjudication.
Prolapsed
cord
:
[66]
The Applicant raised a number of issues regarding the prolapsed
cord. One such issue is that the Applicant was not negligent
in
his response to the pregnant mother as he was initially not aware of
the urgency due to the prolapsed cord.
[67]
The Applicant argued that the nurses were not fond of him and were
looking for reasons to get rid of him and would even lie
in order to
do so. This is in reference to the Applicant’s “conspiracy
theory” mentioned in his defense. The
Applicant failed to
provide a coherent version on this defense and could not make up his
mind what exactly constituted this alleged
conspiracy.
[68]
However, it is clear from the transcribed record that the Applicant
unequivocally states that he had no reason to believe that
Sister
Nape would lie and not tell the truth and that she must therefore be
exempt from being part of the conspiracy theory.
[69]
In view of the fact that the Applicant had no reason to believe that
Nape failed to tell the truth during her testimony, it
can only be
considered correct that the Commissioner reached a reasonable
decision when he found that the Applicant had indeed
been told about
the prolapsed cord.
[70]
In reaching his decision, the Commissioner dealt with conflicting
versions and in the end concluded that there were only two
witnesses,
namely Nape and the Applicant, who could shed light on what had
actually been said during the telephone conversation
(pertaining to
the prolapsed cord).
[71]
It is clear that the other witnesses could only provide some
circumstantial evidence as they reflected back on the actions
and
discussions of these two individuals.
[72]
The Applicant also alleged in argument, that Nape only stated in
cross examination that she informed the Applicant of the breach
/
prolapsed cord and not during her testimony in chief. The Respondent,
however, correctly pointed out that Sister Nape did in
fact state
during her testimony in chief that she had informed the Applicant
about the prolapsed cord.
[73]
Various other aspects were also not addressed by the Applicant to any
degree of satisfaction, amongst them the use of the term
“presentation cord” (that even confused the expert), the
aggressive behavior on entering the ward and his subsequent
actions
and attitude towards the staff, his conflicting evidence on the heart
rate monitor and very importantly, his failure to
properly examine
the patient and to record his findings.
[74]
The Commissioner summarized the evidence and clearly considered and
weighed the evidence presented on this issue.
14
Minute delay:
[75]
The Applicant attempted to argue the delay from a “distance”.
The context of this is important as the Applicant
himself had not
been present - that being the delay at the centre of this matter.
[76]
The urgency and what was required in preparation of the patient going
into theatre was clearly indicated and explained by the
1
st
Respondent’s witnesses.
[77]
The 14 minute delay was dealt with and explained in sufficient detail
and the 1
st
Respondent’s challenge is that it was
rather the Applicant’s failure to respond with the required
urgency that essentially
caused the delay.
[78]
From a reading of the transcribed record, it is evident that
throughout the Applicant’s testimony he never accepts blame
for
any negligence. There was also no reason provided by the Applicant as
to why he did not respond to the prolapsed cord and the
preterm
patient immediately. Even the expert witness called by the Applicant
conceded that the Applicant should have attended to
the patient with
more haste merely based on the medical situation at hand,
irrespective whether he was told about the prolapsed
cord or not.
The Applicant’s silence on this point and stubborn refusal to
accept any wrong doing is deafening.
[79]
It is not the Review Court’s place to second guess the
witnesses and their motives and will not interfere with an
arbitrator’s
finding in the absence of any clear irregularity.
I am convinced that the Commissioner properly dealt with the evidence
regarding
the delay and I find no grounds to interfere with the
Commissioner’s position on this issue.
Cause
and time of death:
[80]
Buchmann is an expert in the medical field, but found it difficult to
explain to the Commissioner a number of issues, amongst
other the
exact time and cause of the baby’s death.
[81]
The First
Respondent argued that Buchmann’s
testimony is based on speculation and found flaws in his testimony,
amongst others, regarding
the determination of the fetal heart beat.
[82]
Buchmann later conceded a number of important issues during cross
examination, inclusive of the test needed to determine whether
the
child was alive.
[83]
It is clear that Buchmann’s theory is as best academic and
neutral. Buchmann only gave evidence from an outside point
of view
and in hindsight. He could not corroborate the Applicant’s
version on any important aspect and in actual fact
often criticized
the Applicant’s handling of the situation.
[84]
I am of the opinion that the Applicant’s conduct and actions
surrounding the operation speaks to the probable conclusion
that the
child was not dead at the time of going to theatre and that render’s
the Applicant’s version of events improbable.
The Applicant
struggled to justify his actions and omissions and could not provide
a reason as to why he failed to inform his fellow
team members
in theatre, including the anesthetist, that the child was dead prior
to doing the cesarean.
[85]
As for the Applicant’s contention that the Applicant was
dismissed for the death of the baby and consequently that the
Second
Respondent failed to consider the issue of “causation”, I
wish to point out that I do not find support for that
contention in
the record. On the contrary the Second Respondent more than once
stated that the Applicant had been grossly negligent
in his response
to the situation and not for the death of the baby. This is not a
criminal matter and although the death of the
baby looms large over
this case, it had not been the fundamental allegation against the
Applicant. In my opinion, the Second Respondent
had a clear
understanding of the events of that night and had dealt with the
evidence before him as it related to the allegation
of gross
negligence.
[86]
What is, however, evident from the evidence, is that the Applicant
had not acted with proper care and in accordance with normal
protocol. This is apparent even from his own expert witness and the
Applicant had very little explanation to offer in dealing with
these
important issues - as a whole they create a very disturbing picture.
Part of the reason that the cause or time of death cannot
be
determined is the fact that the Applicant failed to communicate
properly with his team and failed to complete documentation
/
records. To now hide behind the “incomplete picture”
which he is largely to be blamed for, and to then proceed to
point at
the First Respondent for their failure to provide clear
evidence on these aspects, is nothing but disingenuous.
[87]
I am convinced that the Commissioner reached the correct decision and
should one consider the evidence as a whole, then the
Commissioner’s
interpretation of the evidence on this aspect cannot be considered an
irregularity. I cannot find reasons
in the record to interfere with
the 2
nd
Respondent’s position.
Operation
of the patient:
[88]
Buchman explained that the operation may have taken more time as a
result of the child’s position in the womb, but was
critical of
the Applicant’s decisions and actions.
[89]
The First Respondent argued that said delays and the uncertainty of
whether the child was still alive played a significant
role in
determining whether the Applicant was negligent.
[90]
The Commissioner considered all the probabilities that were properly
put before him, including the version and evidence of
the Applicant.
It is my opinion that the Commissioner reached the correct conclusion
in his award pertaining to this aspect.
Conclusion
[91]
I wish to mention that the award comprises of 30 pages and is well
written and to the point. The merits are comprehensively
set out and
the Commissioner’s reasoning is well supported by evidence and
applicable case law.
[92]
A Review Court has to apply caution in interfering with any
credibility finding of a Commissioner.
It is the
duty of the Commissioner to balance the conflicting versions and to
decide which version to accept.
Sasol Mining (Pty) Ltd v
Ngqeleni NO and Others
state the following:
‘
One
of the commissioner's prime functions was to ascertain the truth as
to the conflicting versions before him...’
[93]
It is clear that the Second
Respondent went about discharging this function by way of a
determination of the probabilities, as well
as the credibility and
reliability of the witnesses that testified before him.
[94]
I am not convinced by the Applicant’s argument that the
Commissioner had failed to properly evaluate the evidence before
him
and that his failure to assess the probabilities of the conflicting
versions before him led to an unreasonable outcome. I find
no reason
to interfere with his findings on credibility and probability.
[95]
As to the Applicant’s argument that the matter was “dismissed”,
I conclude that the matter had not been “dismissed”,
but
had rather been “dismissed with no compensation awarded”.
[96]
The Applicant also raised the issue that “trust” had not
been dealt with, but I found evidence in the record that
Dr Kabale in
fact testified to that issue and clearly stated that he does not
trust the applicant and does not see his way open
to work with the
Applicant again. Even the Applicant’s expert witness had doubts
about whether he would have the Applicant
working in his own hospital
should the allegations be true.
[97]
Although the Applicant’s argument appears to be compelling, I
found its arguments to be often based on “dissected”
parts of the record, which parts were then presented to favour the
Applicant’s own version. A proper reading of the record,
as
pointed out by the Respondent, reflects a different story and seldom
favoured the Applicant.
[98]
It is of extreme importance to note that an arbitration award that
does not live up to a Review Court’s high standard
will not
automatically be subject to review. Commissioners are empowered to
deal with the dispute with a minimum of legal formalities,
their
decisions are immune from appeal, and the legislature has
deliberately set a high bar for reviewing arbitration awards.
[99]
In reviewing the arbitration award, the grounds for review as raised
by the Applicant must be assessed and test to be applied
is a strict
one.
[100]
Having considered the evidence adduced at the arbitration
proceedings, the findings made by the Commissioner and the grounds
for review raised by the Applicant, I cannot find that an
irregularity existed. The Commissioner’s decision fell within
the band of decisions to which a reasonable decision maker could come
to.
I find no reason to interfere with the
arbitration award.
[101] I see no
reason why costs should not follow the results.
[102] In the
premises I make the following order;
1.
The Applicant’s application to review and set aside the award
is dismissed with costs.
Rhoodie
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Advocate, F A Boda
Instructed
by: Hogan Lovells Inc
For
the Respondent: Advocate S B Nhlapo
Instructed
by: State Attorneys
[1]
(2007) 28 ILJ 2405 (CC).
[2]
(701/2012)
[2013] ZASCA 97
;
2013 (6) SA 224
(SCA);
[2013] 11 BLLR
1074
(SCA); (2013) 34 ILJ 2795 (SCA)
[3]
(JA 2/2012)
[2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ
943 (LAC)
[4]
(JA
37/08)
[2010] ZALAC 19
;
[2011] 2 BLLR 129
(LAC) (16 September 2010)
[5]
2013
(2) SA 274 (SCA)
[6]
Paragraph
[68] of CUSA V Tao Ying Metal Industries and Others 2009 (2)
SA 204 (CC)
[7]
(JA52/2013)
[2014] ZALAC 52
;
[2015] 1 BLLR 63
(LAC); (2015) 36
ILJ
640 (LAC) (7 October 2014
)
[8]
Paragraph
39 of the Arbitration Award.
[9]
Paragraph
10 of the Arbitration Award.
[10]
Paragraph
17 of the Arbitration Award.