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[2015] ZALCD 39
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Department of Health - EMRS v Mthethwa and Others (D838/11) [2015] ZALCD 39 (10 July 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Not Reportable
Case
No: D838/11
In
the matter between:
DEPARTMENT
OF HEALTH -
EMRS
Applicant
and
COMMISSIONER
MTHETHWA
First Respondent
PUBLIC
HEALTH SOCIAL DEVELOPMENT
SECTORAL
BARGAINING
COUNCIL
Second Respondent
NUPSAW
obo
NHLEKO
Third Respondent
Heard:
2 December 2014
Delivered:10
July 2015
Summary:
Review of award – misconduct not proved – Commissioner
did not misconceive the nature of the enquiry nor did
he arrive at an
unreasonable result.
JUDGMENT
CELE
J
Introduction
[1]
This is an application in terms of section 158 (1) (g) of the Labour
relations Act,
[1]
to review, set aside and substitute the arbitration award issued by
the first respondent on 25 July 2011, in this matter,
where he
found the dismissal of the third respondent’s member to have
been substantively unfair and ordered the applicant
to reinstate him.
Condonation is sought for a delay of 6 days in filing the review
application. The third respondent opposed only
the review application
and it filed an application to make the award an order of court, in
the event of the review application
being unsuccessful. A meritorious
condonation application has been made and accordingly, condonation is
granted.
Background
facts
[2]
The third respondent initiated this application acting as a trade
union representing its member, Mr Nhleko, the erstwhile employee
of
the applicant. Mr Nhleko commenced his employment with the applicant
on 1 August 2004 in the Emergency Medical Rescue Services,
the EMRS,
based at Abaqulusi Zone in the north of Kwa-Zulu-Natal. He worked in
the ambulance services, as an Ambulance Driver attending
to sick
patients who needed to be conveyed to medical centres according to
their needs as identified by those in charge at the
relevant
hospitals. Different colour codes were used to classify the urgency
of each case. The most critically ill patients were
allocated a red
code and three minutes turnaround time was prescribed as reaction
time to attend to that patient, from the time
a telephone call was
received, calling for the transportation of the patient. A yellow
code was allocated to the not so critically
ill patients who however
were still requiring urgent attention. The turnaround time for the
yellow code was five minutes.
[3]
Mr Nhleko worked under the supervision of Mr Thokozani Sipho
Mlotshwa, who in turn reported to the Vryheid Acting Zonal Officer,
Mr Bhekumuzi Enoch Jele. On 12 December 2008 two ambulances were
destined to travel to Pietermaritzburg. After their departure
a
Doctor Derrick working at Vryheid Hospital telephoned Mr Mlotshwa to
arrange for the transportation of a yellow coded patient
to Grey’s
Hospital in Pietermaritzburg. At the time of Dr Derrick’s
request the two ambulances had not yet returned
from Pietermaritzburg
to Vryheid. At about 15h00 Mr Mlotshwa then telephoned the applicant
and asked him to report earlier than
the regular time of 19h00 on
that evening. According to Mr Mlotshwa the applicant responded with
reluctance to comply, begrudgingly
remarking that there was a delay
in translating his rank from Ambulance Assistant to Intermediate Life
Support Officer. Mr Mlotshwa
said that he told the applicant that the
issue would be attended to.
[4]
Mr Mlotshwa then initiated the arrangements for the transfer of the
Dr Derrick’s patient. The Emergency Medical Dispatcher
in the
evening of 12 December 2008 with whom he corresponded was a Mr
Zwelibanzi Mathenjwa. Mr Mathenjwa instructed the applicant
to
transport the patient to Grey’s Hospital. The applicant
allegedly refused to carry out the instruction and the matter
was
reported to Mr Mlotshwa who said that he also instructed the
applicant. Again the applicant allegedly refused to comply but
instead denied that Mr Mlotshwa was his supervisor and he spat on Mr
Mlotshwa. In the light of developments, Mr Mlotshwa telephoned
Mr
Mathenjwa, telling him no longer to give the particulars of the
patient to the applicant, only to be told that the same had
already
been supplied to the applicant.
[5]
Mr Mlotshwa reported the incident to Mr Jele and the two arranged to
and did meet at the Hospital. They found the applicant
and a Mr
Mbatha already attending to the patient and loading her to the
ambulance for transportation. The applicant was told by
Mr Jele that
he was to report to the base as he was being replaced by a Mr Qwabe.
The applicant retorted by saying that the ambulance
was allocated to
him and left the office and went to the ambulance and he took off to
Grey Hospital. The incident led to the applicant
being charged with
misconduct described as:
“
It
is alleged that on the 12. 12 2008 at about 19h15 you
a)
Refused
to take a Patient care related case (ILS Transfer) given to you by
Emergency Medical Dispatcher. By refusing to take that
call, it
resulted to unnecessary delay of the case affecting the response
time.
b)
Disrupted
EMRS activities in the Abaqulusi Zone by failing to carry out a
lawful instruction given to you by Mr T S Mlotshwa your
immediate
supervisor this conduct amounts to gross insubordination. Furthermore
you assaulted your supervisor Mr TS Mlotshwa in
a most derogative
manner while he was talking to you, by spitting on him inside
premises of work (EMRS).
c)
Verbally
abused your immediate supervisor (Mr Mlotshwa) by telling him that he
is not your supervisor while he is indeed your real
immediate
supervisor
.”
[6]
On 28 May 2009 the chairperson of the internal disciplinary hearing,
Mr M Mchunu found the applicant guilty of all charged preferred
against him and the applicant was dismissed from the employment of
the applicant.On 26 June 2009 he referred an unfair dismissal
dispute
to the second respondent for conciliation. In that referral he
summarised the facts of the dispute as:
“
I
was requested by the control centre to transfer a patient long
distance. I requested the control to contact Ms F Zulu and to contact
me again if they were unable to find her. I did this because we, at
the base, have an arrangement that each one should take turns,
on a
rotational basis, to travel long distance.
The
control contacted me again and told me that my supervisor wanted me
to transfer the patient. I took down the details of the
patient and
went to the hospital to collect the patient at the hospital. My
supervisor and zonal officer instructed me to go back
to the base. We
went to the base with the patient in the ambulance. The supervisor
told me to leave the patient and somebody else
would take the
patient. I refused because I was responsible for the patient. I
transferred the patient to Greys Hospital.
As
far as the question of abuse and assault goes it is a lie. It was
raining on that night and droplets of water could have fallen
on him
and this made him feel that I had been spitting on him
.”
[7]
The dispute was not capable of a resolution and he referred it to
arbitration. The first respondent was appointed to arbitrate
it. The
dismissal of Mr Nhleko by the applicant was common cause and so the
applicant had to prove the fairness thereof. Mr Nhleko
challenged
both the substantive and procedural fairness of his dismissal. The
applicant called three witnesses who testified, being
Messrs
Bhekumuzi Enoch Jele, Thokozani Sipho Mlotshwa and Zwelibanzi
Mathenjwa. Mr Nhleko testified and his witnesses were Messrs
Siphamandla Pennuel Qwabe and Thabani Alfred Mbatha. The first
respondent issued an award with the finding that the dismissal of
Mr
Nhleko was procedurally fair but substantively unfair. He ordered the
applicant to reinstate Mr Nhleko with retrospective effect
with no
loss of earnings or income.
Grounds
for review
[8]
The applicant seeks to review the first respondent’s award on
the basis of it having been improperly obtained and defective
on the
following grounds,
inter alia
:
1)
that
the first respondent committed misconduct in that he failed to arrive
at a decision based on the evidence properly presented
before him;
2)
that
the first respondent failed to apply his mind to the evidence that
was presented before him and he misconstrued the evidence
in finding
that the third respondent did not disrupt the Emergency Medical
Rescue Services (“EMRS”) activities;
3)
that
the first respondent applied a criminal and therefore a wrong
standard in assessing the evidence of the refusal to carry the
instruction;
4)
that the
first respondent exceeded his powers as a Commissioner in finding
that the third respondent’s dismissal was unfair
when the
complaint that other people were treated differently was not proved;
5)
that another
Commissioner could have reached a different conclusion based on the
evidence presented before the first respondent.
[9]
In support of the review grounds the applicant contended that, the
case of insubordination against the third respondent was
contained in
the charge of misconduct relating to the refusal to take a patient-
care related case as well as disruption of EMRS
activities. The
evidence of Messrs Mathenjwa, Jele and Mlotshwa was described to be
supporting that charge. The probabilities were
said to support the
contention that the third respondent refused to take the instruction.
The following facts, which the first
respondent, by submission,
failed to take into account when coming to his conclusion, were
relevant to the probabilities:
1)
that Mr Jele was called to attend a problem when he was off-duty;
2)
that
Mr Qwabe was called to take the transfer of the patient when he was
off-duty;
3)
that
it is a known practice that only two persons are supposed to be in
the ambulance at a time;
4)
that
Mr Mlotshwa had to approach the third respondent in the ambulance to
address him about his refusal to take the instruction;
5)
that
Mr T A Mbatha confirmed that Mr Mlotshwa did ask the third respondent
about his refusal to take the instruction;
6)
the
third respondent’s conduct after Mr Jele’s intervention,
in particular when he was asked not to travel to Pietermaritzburg.
[10]
It was submitted that the first respondent misconstrued the evidence
in relation to the charge of disrupting the EMRS activities.
The following was submitted to be undisputed evidence:
a)
that in all ambulances there were to be two crew members;
b)
that Mr Mlotshwa had put Messrs Mbatha and Qwabe on the trip sheet;
c)
that
the third respondent, despite repeated pleas that he was to remain
behind, got into the ambulance as a crew member even though
Mr Qwabe
was already in the ambulance in his capacity as the intermediate life
support.
Opposition
to the review application.
[11]
The third respondent made numerous submissions in opposition to the
review application by averring, inter alia, that:
1.
The
record of the proceedings demonstrated that the award of the first
respondent was based on the material that was before him;
2.
The
first respondent summarised the evidence accurately;
3.
He
set out his reasoning, which was logical and demonstrated that he
applied his mind to the evidence before him.
4.
He
satisfied the test for reasonableness even if the deponent to the
founding affidavit disagreed with the finding or the weight
given to
the evidence in the analysis;
5.
The
award set out each of the charges and dealt with the evidence in
respect of those charges;
6.
On
the first two charges the finding was made on the probabilities and
on the basis of a credibility finding against the applicant’s
witnesses that Mr Nhleko was not guilty of the misconduct he was
charged with;
7.
On
the third charge the first respondent found that he was unable to
decide who was telling the truth and he based his decision
on the
onus, which he correctly found rested with the applicant and
therefore he found against the applicant which had not proved
the
dismissal to be fair;
8.
The
grounds of review set out in the founding affidavit do not challenge
the finding that Mr Nhleko was not guilty of the first
charge. The
finding in the award in relation to that issue was therefore to
stand;
9.
The
most significant feature of the award was the finding that evidence
that was given on behalf of the applicant materially contradicted
its
own documentation. Messrs Mlotshwa and Mathenjwa were found to be not
honest and reliable witnesses of the applicant and they
did not even
believe their testimony;
10.
Mr
Nhleko was found to have complied with the instruction from Mr
Mlotshwa and that he made the transfer to Grey’s Hospital
without any delay;
11.
Messrs
Mbatha and Qwabe testified that Mr Nhleko was monitoring the patient
at the back of the ambulance during the trip;
12.
A
different case from that presented at the arbitration was made in the
founding affidavit, namely that the insubordination was
not in
refusing to take the instruction to transport the patient but rather
the refusal to accept the countermanding of the
instruction by
Mr Jele, contrary to the charge faced by Mr Nhleko;
13.
The
first respondent accepted Mr Nhleko’s evidence that he had
asked for the discussion between him, Messrs Mlotshwa and Jele
to
wait until after he had dropped off the patient because the life of
the patient was the main priority;
14.
The
first respondent accurately recorded in the award that Mr Nhleko was
not charged for going to Grey’s Hospital but for
refusing to
take the patient there.
Evidence on
disputed facts.
[12]
The applicant’s version was that at the request of Dr Derrick
Mr Mlotshwa issued an instruction that a female patient
at Vryheid
Hospital be transferred to Grey’s Hospital. Mr Mathenjwa was
then told by a Mr Sithole that there was a patient
to be transferred.
Mr Mathenjwa called on Mr Nhleko to do the transfer. Mr Nhleko cut
the discussion by dropping the telephone.
Mr Mathenjwa made a second
telephone call, at which instance Mr Nhlekotold him to request Ms
Zulu to do the transfer as he was
in no position, at the time, to do
it. The matter was reported to Mr Mlotshwa but very soon thereafter
Mr Nhleko telephoned, asking
for the details of the patient and Mr
Mathenjwa supplied the same. An entry in the vehicle control form
recorded that Mr Mathenjwa
called Mr Nhleko at 19h18 for the
transfer. Mr Mathenjwa’s evidence was that he erred in
recording 19h18 as he should have
recorded 19h15.
[13]
Mr Mlotshwa said that he was told by Mr Mbatha that Mr Nhleko
declined to do the transfer. He said that the instruction was
given
to Mr Nhleko at 19h15. Mr Mlotshwa then went to Mr Nhleko, apparently
at the base, and repeated the instruction to him but
Mr Nhleko became
abusive of him and spat on him. Mr Mlotshwa telephoned Mr Jele to
report the turn of events. Then Messrs Mlotshwa
and Jele proceeded to
Vryheid Hospital to find the patient being attended to by Mr Nhleko
and his crew. Mr Nhleko asked if there
was any problem. Mr Jele then
withdrew the instruction given to Mr Nhleko to do the transfer but Mr
Nhleko snubbed him by getting
to the ambulance. Mr Jele followed him
and told him to go to the base. Again, once they were all at the base
Mr Jele told Mr Nhleko
to hand over the transfer to another crew but
Mr Nhleko left for Grey’s Hospital, saying the matter was to be
discussed later
as he had to look after the patient.
[14]
Mr Nhleko admitted being told to do the transfer but he said that he
suggested that if Ms Zulu was available she was to be
asked to do it.
When he was telephoned again, he never refused to carry out the
request but he asked for the particulars of the
patient and attended
to her. He denied being abusive to Mr Mlotshwa and merely said that
he remarked about the approach of Mr Nhleko.
He denied spatting on Mr
Nhleko. He denied having delayed in complying with the instruction.
His witnesses Messrs Qwabe and Mbatha
confirmed that the patient
being transferred was looked after by Mr Nhleko on the way to Grey’s
Hospital. Mr Mbatha denied
seeing any saliva on Mr Mlotshwa following
an altercation with Mr Nhleko.
Evaluation
[15]
The applicant seeks to review the first respondent’s award on
the basis of it having been improperly obtained and defective
on a
number of grounds, contending that, as a consequence the award was
unreasonable. The applicant had therefore to show that
the award
being assailed was one that a reasonable decision maker could not
make.
[2]
[16]
Before a review will succeed, the reviewing court must find that the
Commissioner 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.
[3]
[17]
The evidence of the applicant about the delay in respect of counts
one and two was limited to the events of the evening of
12 December
2008 and it excluded the events of the afternoon of the same day. Mr
Jele’s evidence on the delay was none existent.
In fact when he
was cross-examined he conceded that there was no delay. Documentary
evidence of the applicant contradicted the
evidence of Mr Mlotshwa.
He said that the book entry of 19h18 was incorrect and was to read
19h15. This correction was sought to
be made in 2011 when the entry
had been made in 2008, while the events were still fresh in the mind
of the one who made the entry.
It was within the power of the first
respondent, in assessing evidence to reject this aspect of evidence
of the applicant. Yet
the evidence of the delay was very crucial to
count one. The finding of the first respondent on this count is well
supported by
evidence led.
[18]
In respect of the charge of gross insubordination by disrupting EMRS
services, in that Mr Nhleko failed to carry out the instruction
given
by Mr Mlotshwa the first respondent was confronted by one version
from both sides, namely that the instruction was carried
out. Both
Messrs Jele and Mlotshwa were surprised to find Mr Nhleko very busy
in the process of carrying out the given instruction.
On the
assumption that Mr Nhleko initially refused to carry out the
instruction, then he should have been charged properly for
that
infraction. He was not so charged. The Commissioner should be
commended for not misconceived the nature of the enquiry or
for not
arriving at an unreasonable result on this aspect. No more need be
said here as I am in agreement with the submissions
of the third
respondent.
[19]
On the charge of assault and abuse of the supervisor, part of count
two and count three, the Commissioner was faced with two
versions of
a single event that could not co-exist. He was faced with the
evidence of Mr Mlotshwa versus that of Mr Nhleko. The
confrontation
would have taken place when the two were the only ones together. Mr
Mlotshwa said that he called Mr Mbatha to witness
the saliva but Mr
Mbatha saw nothing of the like. It was within the powers of the first
respondent, having listened to witnesses,
to find which version was
favoured by probabilities. He found that the two versions were
equally balanced. This is a finding that
could only be challenged, if
at all, on appeal and not on review. The submissions of the applicant
did not go far enough to justify
a disturbance of the finding on this
issue.
[20]
As a passing remark and based on the admissions made by Mr Nhleko,
while he was luckily for him not charged for it, it was
not within
his right to refuse to comply with Mr Jele’s instruction not to
go to Grey’s Hospital. Messrs Mlotshwa and
Jele had authority
to stop him from doing the transfer. This consideration alone would
have made reinstatement inappropriate in
terms of section 193 (2) (b)
and (c) of the Act. Fortunately for him, the applicant did not seek
to review the finding on reinstatement.
[21]
Accordingly, the following order will issue:
Order:
1.
The
review application is dismissed.
2.
The
arbitration award in this matter is made an order of this Court.
3.
No
costs order is made.
______
Cele J
Judge of the Labour
Court of South Africa.
APPEARANCES
1.
For
the applicant: Mr W S Kuboni
Instructed
by Hlela Attorneys
2.
For
the third respondent: Mr M Pillemer
Instructed
by Jafta Inc.
[1]
Act
Number 66 of 1995, hereafter referred to as the Act.
[2]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC); (2007) 28 ILJ 2405 (CC).
[3]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae
)
2013 (6) SA 224
(SCA); (2013) 34 ILJ 2795 (SCA) at para 25.