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[2015] ZALCD 33
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HOSPERSA and Another v Member of the Executive Council Responsible for Health: KZN and Others (D1170/11) [2015] ZALCD 33 (3 June 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Not
Reportable
Case
no: D1170/11
In the matter between:
HOSPERSA
FIRST APPLICANT
M.PILLAY
SECOND APPLICANT
and
THE MEMBER OF THE
EXECUTIVE COUNCIL
RESPONSIBLE
FOR HEALTH: KZN
FIRST
RESPONDENT
PUBLIC HEALTH AND
SOCIAL DEVEOPMENT
SECTORAL BARGAINING
COUNCIL SECOND
RESPONDENT
G.GERTENBACH
N.O THIRD
RESPONDENT
Heard
:
2 June 2015
Delivered
:
3 June 2015
Summary:
Review
-
Jurisdictional rulings- unfair labour practice
JUDGMENT
WHITCHER J
Introduction
[1]
The Applicants ask for an order reviewing
and setting aside the ruling of the Third Respondent in which the
Third Respondent ruled
that the Second Respondent lacked jurisdiction
to deal with the referred dispute. They further ask for substitution
for such ruling
an award declaring the First Respondent committed an
unfair labour practice in demoting the Second Applicant and an award
directing
the First Respondent to pay to the Second Applicant an
amount of R41 223.25, being the amount of the additional income
the
Second Respondent would have received, but for the unfair
withdrawal of his appointment to the post of Senior Systems
Management
Officer which unfair withdrawal occurred on 4 February
2008 and an order that such amount (together with interest thereon at
15,5%
from the date of this order until date of payment) is to be
paid to the Second Applicant within 30 days of this order.
[2]
The Second Applicant initially held the
post of Finance and Systems Manager at the Mahatma Ghandi Hospital (a
Level 7 post). In
2007 the Second Applicant applied for the post of
Senior Systems Management Officer (a level 8 post). The Second
Applicant was
shortlisted and interviewed with other candidates. The
Second Applicant was informed in writing by Dr WL Ndlovu, the
Hospital Manager,
on 27 December 2007 that he had been appointed to
the post.
[3]
The Applicants contend that at this stage
the Hospital Manager was also the person to whom the MEC for Health,
KwaZulu-Natal had
delegated the authority to make appointments in
terms of the regulations governing the Public Service. There is no
evidence on
record which disproves this contention. The
Hospital Manager, acting as the executing authority responsible for
appointments,
duly appointed the Second Applicant to the post and the
Second Applicant took up the post. No disputes or grievances were
lodged
by the other candidates or any union against the appointment.
[4]
One Dr Persad succeeded Dr Ndlovu as the
Hospital Manager. On 4 February 2008 Dr Persad informed the Second
Applicant in writing
that the letter of appointment “was
erroneously issued” and that it was withdrawn with immediate
effect from 1 January
2008.
[5]
The Second Applicant lodged a grievance but
this was not satisfactorily dealt with. The Applicants then referred
an unfair labour
practice dispute concerning the demotion of the
Second Respondent based on the grounds that Dr Persad (i) furnished
no proper reasons
for his decision to withdraw the post. The bald
statement “was erroneously issued” did not constitute
clear and proper
reasons; (ii) provided no proof in legislation or
relevant policy or collective agreement that he had authority to
withdraw the
appointment; and (iii) made a unilateral decision to
withdraw the appointment without first consulting the Second
Applicant or
giving him an opportunity to make representations.
[6]
The parties at the arbitration filed
affidavits containing the evidence each wished to adduce and closing
argument.
[7]
On 10 November 2011 the Third Respondent
issued a ruling that he lacked jurisdiction to determine the dispute.
The crux of the Third
Respondent’s reasoning that led him to
conclude that he lacked jurisdiction is contained in paragraph 10 of
his Ruling. It
reads:
“
I
am of the view that the lawfulness or not of the applicant`s
appointment needs to be determined before fairness or legality of
an
of the other issues and/or actions and it can only be determined by
way of the interpretation and analysis of the Regulation
and the
RSSP. In this regard I need to establish whether I have the required
jurisdiction to determine the said lawfulness of the
applicant`s
appointment. The jurisdiction of Commissioners to adjudicate disputes
is primarily derived from the LRA, and in respect
of promotional
disputes, our jurisdiction is limited to the determination of alleged
unfair labour practices in terms of the aforesaid
section 186 (2)
(a)of the LRA. Scrutiny and due consideration of this section leads
me to conclude that the question of the lawfulness
of the applicant`s
appointment does not fall within the scope of this section and I find
that I do not have the required jurisdiction
to interpret and analyse
the Regulation and the RSSP. This finding in turn leads me to
conclude that there is no further need for
me to determine any other
aforesaid issues in dispute between the parties, for it is only once
a decision has been made on whether
or not the Applicant’s
appointment was lawful or not, that one can decide whether the
withdrawal of the appointment constituted
any unfair conduct by the
respondent. The Labour Court is in my view the appropriate forum
where this dispute needs to be heard
and decided”.
[8]
The reference in this passage to “RSSP”
is a reference to the employer’s Recruitment and Selection
Policy, and
the reference to “the Regulations” is a
reference to the Regulation D7 in Part VII of the Public Service
Regulations.
[9]
The review test as set out in
Sidumo
does not apply to the review of a jurisdictional ruling. In such a
review the question is not whether the finding of the arbitrator
was
justifiable, rational or reasonable. The issue is simply whether
objectively speaking, the facts which could give the forum
jurisdiction to entertain the dispute existed.
[10]
I accept the Applicants’ contention’s
that this reasoning is incorrect because in the arbitration there
were in existence
objective facts giving the Council jurisdiction to
entertain the dispute. In the arbitration the Applicant pleaded that
the Department’s
conduct constituted an unfair labour practice
in relation to demotion. This type of complaint falls within the
jurisdiction of
the Second Respondent. The mere fact that provisions
of the Public Service Regulation or the RSSP may have been relevant
to the
dispute and had to be considered (and/or interpreted) in
determining the dispute did not render the dispute one concerning
“the
interpretation of a provision of the Public Service
Regulations or the RSSP”. It remained an unfair labour practice
dispute
in relation to a demotion/promotion. The Third Respondent
accordingly had jurisdiction to deal with that.
[11] The issue before the
Third Respondent was whether the First Respondent had acted fairly in
demoting the Second Applicant.
[12] The First
Respondent’s case at the arbitration was based solely on the
contention that the appointment of the Second
Applicant to the post
was unlawful because Dr Ndlovu did not choose the person recommended
by the Selection Committee. They contended
that in terms of the
employer’s Recruitment Strategy and Selection Policy, if Dr
Ndlovu did not support the recommendations
of the Selection Committee
she was obliged to request the Selection Committee to recommend
another candidate instead of making
her own appointment from the list
of candidates. On the face of things this procedure seems appropriate
and would obviate abuse
of the process. However, at the arbitration,
the Applicant referred the arbitrator to regulations D6 and D7 of the
Public Service
Regulations which showed that the executing authority
did not need to send the matter back to the selection committee but
had the
authority to make the appointment, as long as she gave
reasons for her decision and had applied her mind to all the relevant
requirements
of the post when making the appointment. The Applicant
noted that the First Respondent provided no legislation or competent
document
which established that this internal policy overrode the
regulations.
[13] The Second Applicant
was formally appointed and already performing in the post and being
remunerated accordingly when the post
was suddenly withdrawn without
warning. There was no suggestion that the Second Applicant was
complicit in any irregular conduct
in this process. In these
circumstances, fairness dictates that such appointed persons should
be entitled to rely on their appointment
being valid until the act in
question is found to be unlawful by a competent court or body acting
in terms of a valid, clear and
known policy and in terms of a fair
procedure. This results in certainty and avoids a situation where
decision makers can chop
and change their minds resulting in affected
parties never knowing where they stand or when a decision will be
reversed by some
official who made it.
[14]
The manner in which the First Respondent withdrew the appointment was
clearly unfair. The First Respondent failed at the arbitration
proceedings to establish that the new Hospital Manager had the
authority to unilaterally withdraw the appointment. There was no
evidence that he had acted in terms of a withdrawal process provided
for in specified legislation, regulations or a collective
agreement.
Nothing contained in the Public Service Regulations or even the
policies referred to by the Department vests power in
any official,
let alone the acting Hospital Manger, to reverse an appointment, as
the Acting Hospital Manager purported to do so
on 4 February 2008. If
the Department had no regulations or valid collective agreements
permitting such action, it was open to
the Department to have
approached a competent court in order to seek to obtain a valid and
binding order of nullity in relation
to the Second Applicant’s
appointment.
[1]
[15] Fairness, at its
basic level, entitled the Second Applicant to procedural fairness.
However in this matter, the decision to
withdraw the appointment was
taken without consulting or giving the Second Applicant an
opportunity to make any representations
prior to a final decision
being made. In this regard the conduct of the First Respondent was
procedurally unfair. The First Respondent
also failed to provide the
Second Applicant with reasons for the withdrawal. As contended by the
Applicants, the statement “erroneously
issued” does not
constitute proper reasons. The provision of proper reasons is central
to the affected person being able
to make meaningful representations
when on called to do so.
[16] The evidence of the
Second Applicant at the arbitration was that the unfairness was
exacerbated by the fact that, as a consequence
of the First
Respondent’s conduct, he suffered depression and loss of
standing in the eyes of her colleagues and was forced
to “repay”
to the Department remuneration paid to him after his salary level was
increased due to his appointment.
These factual allegations were not
disputed by the First Respondent at the arbitration.
[17] In all these
circumstances there was evidence before the Third Respondent that the
First Respondent committed an unfair labour
practice relating to the
demotion of the Second Applicant.
[
18]
Order
The ruling of the Third
Respondent dated 19 November 2011 under case number PSHS 47/08-09 is
reviewed and set aside and substituted
with an award that:
(i)
The Second Respondent had jurisdiction to
determine the unfair labour practice dispute referred to the Council
by the Applicants.
(ii)
The First Respondent committed an unfair
labour practice.
(iii)
The First Respondent is directed to pay to
the Second Applicant an amount of R41 223.25, being the amount
of the additional
income the Second Respondent would have received,
but for the unfair withdrawal of his appointment to the post of
Senior Systems
Management Officer which unfair withdrawal occurred on
4 February 2008. Such amount (together with interest thereon at 15,5%
from
the date of this order until date of payment) is to be paid to
the Second Applicant within 30 days of this order.
____________________
B M Whitcher
Judge
of the Labour Court in South Africa
APPEARANCES
FOR THE
APPLICANTS:
Adv.P.J Blomkamp instructed by Llewellyn Cain Attorneys
FOR THE FIRST
RESPONDENT:
Adv. S Giba instructed by
State Attorney, Durban.
[1]
See:
MEC
for Finance, KwaZulu-Natal and Another v Darkin N.O. and Another
(2008) 6 BLLR 540
(LAC).