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[2015] ZALCCT 34
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Abdurahman v Public Health And Social Development Bargaining Council and Others (C25/14) [2015] ZALCCT 34 (30 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C25/14
DATE:
30 APRIL 2015
Not
Reportable
In
the matter between:
FERIAL
ABDURAHMAN
.......................................................................................................
Applicant
And
PUBLIC HEALTH
AND SOCIAL DEVELOPMENT
BARGAINING
COUNCIL
..........................................................................................
First
Respondent
GAIL
McEWAN
........................................................................................................
Second
Respondent
DEPARTMENT OF
DEFENCE
................................................................................
Third
Respondent
Date
heard: February 4 2015
Delivered:
30 April 2015
JUDGMENT
RABKIN-NAICKER
J
[1] This is an
opposed application to review an arbitration award under case number
PSHS600-11/12. The second respondent (the Commissioner)
found that
the applicant had failed to establish that the third respondent (the
department) had committed an unfair labour practice
by not promoting
her to the position of Head: Clinical unit.
[2] The applicant
graduated with a medical degree from the University of Cape Town in
1989. She was employed by the Western Cape
Department of Health at
Groote Schuur Hospital from January 1999 until July 2001. She
occupied the position of Principal Medical
Officer in the Department
of Obstetrics and Gynecology. She transferred to 2 Military Hospital
in Wynberg Cape Town and was appointed
to the position of Chief
Medical Officer at the same level post as she had been at Groote
Schuur, a level 12 post, on 1 August
2001.
[3] In May 2003,
applicant was admitted as a Fellow of the College of Obstetricians
and Gynecologists of South Africa and on 4 May
2004 was registered as
a Specialist: Obstetrics and Gynaecology with the Health Professions
Council of South Africa. Following
her registration, she was with
effect from 5 May 2004 appointed as a Senior Specialist by the
Department – which occurred
in terms of a “functional
promotion” in that she did not have to make application for it.
[4] Three years
later on 4 May 2007 she applied for the position of Principal
Specialist. She applied by virtue of having served
three years as a
Senior Specialist. She was not so promoted.
[5] With effect
from 1 July 2009, after she had spent a further two years working in
the post of Senior Specialist, the OSD was
introduced in the public
service nationally. The OSD process translated a Senior Specialist to
the position of Medical Specialist
Grade 3 in the new dispensation,
and the post of Principal Specialist to Head: Clinical Unit.
[6] Applicant’s
complaint at arbitration was that she should have been promoted to
the post of Principal Specialist by the
time of the OSD coming into
operation, during 2007. Had she been promoted to a salary level 13
prior to 1 July 2009 when the OSD
took effect, then she would have
been translated to the position of Head: Clinical Unit in terms of
the OSD.
[7] On the 11
April 2011, applicant submitted a formal grievance regarding the
failure of the Department to promote her. Her promotion
was proposed
and supported by among others the Surgeon General in a letter dated
on 11 April 2011. However, on 23 May 2011 she
was officially informed
that her request for promotion had not been approved. She then
referred a dispute to the Bargaining Council.
[8] The letter
from the Department giving reasons for the refusal for promotion read
inter alia
as follows:
“
Take
note that DoD cannot comply with your request for the occupation
class transfer of Dr Abdurahman from medical specialist Grade
3
(MSP4) to Head Clinical Unit Grade 1 (MSP8).
According
to the Department of Public Service Administration (DPSA) Circular
No. 4 of 2009, par 18, (including promotion of an existing
employee)
to a higher post is dependent on the availability of a funded vacancy
and such vacancy shall be advertised and filled
through open
competition.”
[9] The applicant
explains the Department’s stance as the following: “because
I was acting in and/or held against the
post of Head: Clinical Unit,
in the Obstetrics and Gynaecology Department in 2 Military Hospital,
the DOD viewed the post as not
being vacant.” At the
arbitration proceedings she asked that she be promoted, failing which
that she would like the post
advertised so that she could apply for
it.
[10] The
Department argued at arbitration that as a public service employee
applicant has no right to functional promotion applicable
to
militarized posts for medical specialists. This was never mentioned
prior to arbitration as a reason for her non- promotion.
In addition,
it was only at arbitration that the Department testified that, two
weeks previously, it had found
that it had made an error
in
translating the applicant when the OSD came into effect- in that she
did not have the requisite years of registration at a specialist
at
that time. The Department has now told the applicant she must pay
back an alleged overpayment of R739 000 given its view
that
applicant should in fact have been demoted from level 12 to level 11
when the OSD translations were done.
[11] In her award
the arbitrator found as follows:
“
(21) A
communication was sent out by the Surgeon General dated 10 September
2004 which specifically refers to the South African
Military Health
Specialists (SAMHS) and athough working at a military hospital
Abdurahman was never part of the military, did not
wear a uniform nor
hold any rank. It is in terms of this communication that Abdurahman
believed she had the requisite four (later
changed to three years’
experience) and should therefore have been promoted to the position
of principal specialist at level13.
However automatic promotions had
been abolished since July 2001 for public service appointees and
Abdurahman was not entitled to
be automatically promoted to the post
of principal specialist. Then the OSD was implemented with effect
from 1 July 2008. Abdurahman
was translated in terms of part 13 which
was intended for those medical specialists who had more than 10
years’ experience.
The trigger for experience is the
registration with the Health Professions Council with whom Abdurahman
registered in 2004. She
clearly did not have sufficient experience
and by admission from the employer was incorrectly translated. The
error meant that
Abdurahman benefitted financially from the OSD
translation. As a public servant Abdurahman was not entitled to the
promotion to
principal specialist before the implementation of OSD
and therefore it follows that after OSD she was not entitled to be
translated
to Head:Clinical Unit.
(22) In terms of
the automatic promotion to Head:Clinical unit I find on a balance of
probabilities that Abdurahman has failed to
establish that she was
entitled to this promotion.
(23) Looking
holistically at the situation it is indeed unfortunate that the
employer never properly explained to Abdurahman that
which has now
been clarified at arbitration. I find on a balance of probabilities
that Abdurahman has failed to establish that
the employer committed
an unfair labour practice by not promoting Abdurahman to the position
of Head:Clinical unit.”
[12] If regard is
had to the record of the arbitration, it is put to the applicant by
counsel for the Department at the end of her
cross examination, that
in order for applicant to get the post of Head: Clinical Unit:
“
I put it
to you there are two possible options, you either militarise your
position and the head of military will then approve it,
as my
instructions are that its within his or her prerogative to do so, but
the post won’t have to be advertised. Your other
option is that
you apply in a process of open competition for the post of head
clinical unit once it is advertised here at the
hospital.”
[13] These are
extraordinary propositions given that the power to exercise either
option lies with the Department as employer. The
findings made by the
arbitrator, in light of these possible remedies relied on by the
Department itself, are those that a reasonable
arbitrator could not
make. I must agree with Mr Stelzner that the fundamental question
before the arbitrator was whether an unfair
labour practice (i.e.
unfair conduct by the employer) had been committed in relation to
promotion in the specific circumstances
of the case. The applicant
had been employed as the de facto head of the unit in which she
rendered services at the level of a
level 13 employee, without due
remuneration, and had been doing so to the satisfaction of all
concerned for more than a decade
without being promoted.
[14] The
Department’s stated reason for declining her promotion pursuant
to her grievance defies logic i.e. that because she
was “held
against” the post it was not vacant in order for her to apply
to be appointed to it. It is patently unfair
to expect someone to do
the work required of a post but prevent their promotion to it by
virtue of it not being considered vacant
on the establishment.
[15] I would thus
agree that the arbitrator in this matter misconceived the nature of
the enquiry before her, which should have
been into the fairness of
the employer’s conduct relating to applicant’s promotion.
Instead she got embroiled into
trying to decide which prescripts were
applicable to the applicant. It is unclear to me on the papers as to
whether once someone
has joined the Department ‘from outside’
as a medical specialist, that their subsequent promotions are subject
to different
prescripts from their colleagues doing the same job, but
who are in uniform.
[16] The record
contains a memorandum dated 16 April 2003, sent out by the Surgeon
General on 10 September 2004, (two years after
applicant joined the
hospital) the aim of which was to spell out the career management
imperatives for medical officers and specialists
in the SAMHS. It
states that if a medical officer is appointed ‘from outside’
on level 12 there must be a funded post
that was advertised. It also
states that if a medical specialist is appointed ‘from outside’
on level 12 or 13 they
must be appointed with the rank of major. This
letter was interpreted by the arbitrator to be one applying only to
military posts
and not to personnel employed in terms of the PSA.
This begs the question of who appointees to the SAMHS ‘from
outside’
are if not someone in the position of applicant?
[17] The
applicant’s letter of appointment dated 11 July 2002 contained
in the Department’s bundle at arbitration, refers
to the
mission of the SAMHS. It provides as one of the aims of the post to
promote a favorable, positive image of the SAMHS and
to promote high
morale by the establishment of a unique SAMHS culture. In the
performance agreement entered into by the applicant
and the acting
head of the department, her job details include a force number and it
is recorded that her division is the SAMHS.
No clearer representation
than this could have been made to the applicant that she was part of
the SAMHS. Why would a medical officer
or specialist join the SAMHS
from “outside” if unlike their colleagues in uniform they
could not be afforded the same
promotion opportunities? Unfortunately
answers to the questions I pose have not been dealt with in the
papers. The inference I
draw from the documents in the record,
including those I have specifically mentioned above, is that the
arbitrator was incorrect
in her understanding of the prescripts
governing promotion of somebody in applicant’s position.
However, even if I am wrong,
the award still stands to be set aside
given the arbitrators failure to deal with the issue of fairness and
to come to the conclusion
that an unfair labour practice had been
perpetrated against the applicant.
[18] In her
submissions before me Counsel for the Department, Ms Golden, argued
that the applicant was not acting in the post of
Head: Clinical Unit
but that she was ‘carried against that post’, it being
the only vacancy that 2 Military Hospital
had at the time that
applicant was transferred from Groote Schuur. She repeats in her
heads of argument that the applicant has
the option of applying to
have her post converted to a military post in terms of the Defence
Act. She submits that the Department
ought also to have informed the
applicant that she was not entitled to a functional or automatic
promotion and that: “It
is correct that this evidence was only
proffered by the Department in the arbitration but nevertheless
remains a legitimate reason
why she does not qualify to be promoted
automatically.”
[19] In view of
all of the above, the award stands to be set aside and substituted,
there being no reason to remit the matter. The
unfair conduct against
the applicant is patent and in my judgment an appropriate equitable
remedy derived from the remedial powers
afforded to an arbitrator
when making an award under section 193(4) of the LRA
[1]
must include protected promotion in this case. In all the
circumstances of this case, I make the following order:
Order:
1. The Award
under case number PSHS600 is hereby reviewed and set aside and
substituted as follows:
1.1
The Applicant has been subject to an unfair labour practice
concerning promotion in terms of
section 186(2)(a)
of the
Labour
Relations Act 66 of 1995
;
1.2
The Third Respondent is ordered to advertise the post of Head:
Clinical Unit Department of Gynaecoloy: Two Military Hospital
within
a period of six weeks from the date hereof and to consider any
application received from the Applicant in this regard in
the process
of filling this post;
1.3
The Applicant is protectively promoted to a salary level 13 for the
period from 4 May 2007 up until the completion of the process
of
filling the post as provided for in clause 1.2 above;
1.4
The Third Respondent is ordered to compensate the Applicant with an
amount equivalent to the difference in pay between a Medical
Specialist Grade 3 and a Principal Specialist/Head: Clinical Unit for
the period of the protected promotion;
1.5
The Third Respondent is to prepare a calculation of the compensation
payable for presentation to the Applicant within four weeks
hereof
and if the parties cannot reach agreement on this calculation, the
matter shall be re-enrolled for further determination
of the sum to
be paid before the Labour Court.
2.
The Third Respondent is to pay the costs of the review application.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
RGL Stelzner SC instructed by Bernadt Vukic & Potash
Third
Respondent: T. Golden instructed by the State Attorney
[1]
Minister
of Safety & Security v Sectoral Bargaining Council & others
(2010) 31 ILJ 2680 (LC) at paragraphs 22 - 24