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[2016] ZALCD 28
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Department of Health v Dladla and Others (1132/13) [2016] ZALCD 28 (7 November 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT DURBAN)
Not
Reportable
Case
No: 1132/13
In
the matter between:
DEPARTMENT
OF
HEALTH Applicant
and
D K DLADLA &
OTHERS Respondents
JUDGMENT
7
OCTOBER 2016
CELE
J
Introduction
[1]
Even though on different grounds both parties in this matter seek to
review and correct the decision of the Third Respondent
in his
arbitration award dated 14 September 2013.
[2]
This application is one brought in terms of section 158(1)(g) of
the Labour Relations Act
[1]
hereafter referred to as the Act. I prefer to refer to the
parties as the employer and the employees and similarly the employers
and the employees applications. In the case number D1132/13 the
employer is seeking a review of the arbitration award in its
entirety.
Whilst in the case D1200/13 the employees are seeking
a review of the same award in so far as the exclusion of the
employees appearing
on numbers 788 to 913 of Annexure A to the award
are concerned. Put differently the employer is seeking a review of
paragraph 22
of the award whilst the employees are seeking a
review of paragraph 22, in part paragraph 23 and the
ancillary relief
on paragraph 24 of the award. Case number
1200/13 is a counter review application to case number D1132/13. The
application
in D1132/13 is opposed by the employees, whilst D1200/13
is but for the main application unopposed.
The
factual background.
[3]
The facts of this matter are by and large common cause between the
parties. All employees are nurses stationed at various hospitals
under the Department of Health hereafter referred to as the
department. A collective agreement called resolution 2/2004 was
reached between the labour and the department. In terms of the
collective agreement employees stationed at a graded institution
qualified to be paid certain allowances such as the rural allowance.
Such employees were described in the circular as professional
nurses.
The
issue before Court.
[4]
Simply stated the issue to be decided in this case by the Third
Respondent was whether the interpretation of the collective
agreement
2/2004 and thus whether the other employees other than those listed
in numbers 700 up to 728 were entitled to receive
a rural allowance.
The department took the position that the rural allowance was only
payable to graded nurses called professional
nurses which it
understood to mean the nursing sisters only. That approach was to the
exclusion of staff nurses, ancillary nurses,
midwives and ancillary
midwives.
[5]
An unfair labour practise dispute was referred for conciliation and
thereafter for arbitration. An award was issued by a different
commissioner on 7 December 2006 which award favoured the
employees thus indicating to the department that the nurses that
the
department wanted to exclude from the allowance had to be paid that
allowance meaning the collective agreement was not only
applicable to
the nursing sisters, but had to include the other various categories
such as the staff nurses, ancillary nurses,
midwives and ancillary
midwives.
[6]
The department was aggrieved by that finding of the Commissioner.
Itthen filed a review application in this court. It came under
case
number D67/07. Once the application was filed the only development
that took place thereafter was an application to intervene
in the
proceedings and that application by the national minister to
intervene was filed as far back as 24 October 2007. I
have a
file before me. Nothing else took place in those review
proceedings. What then happened is that Mr Dladla
together
with his group decided to refer yet another dispute for conciliation,
conciliation failed to resolve it. It was then referred
to the third
respondent for arbitration and the third respondent was appointed to
arbitrate that dispute. The Third Respondent
issued an award which is
being assailed presently.
[7]
The chief findings of the Third Respondent are relevant here. Before
I go to that let it be indicated that during the arbitration
proceedings the employees led evidence through Mr Dladla who was
the only witness to testify. The department was given a chance
to
cross examine Mr Dladla through its representative and once
the case of the employees was closed the Commissioner
granted the
department an opportunity to lead its evidence. The representative of
the department decided to close the case of the
department without
evidence led. That representative asked that an opportunity be
granted to the parties to file written submissions.
The opportunity
was indeed so granted.
[8]
Notwithstanding such period of time given to the parties, only the
employees representative made written submissions. The department
failed to make any written submissions. Effectively the Commissioner
was limited to rely on the facts as were brought to him by
the
employees. But then he was to interpret the collective agreement viz
using the facts before him.
[9]
Now, even before I go to the chief findings I need to reflect for a
moment on this collective agreement. The relevant portion
of the
agreement falling under the Public Health Welfare Sectoral Bargaining
Council is under paragraph 3.1(a)(i) which reads:
“
A
non pensionable rural allowance to the value of 22 percent, 17
percent and 12 percent respectively of the relevant annual
salary
notch be payable to identified personnel in the occupational groups
that are identified and who are actually involved on
a fulltime basis
with clinical works.”
There
is then a categorisation of such employees. They are listed and
at the bottom of that list we have professional nurses
excluding
students and professional nurses and there they would be entitled to
12 percent.
Below this entry lies an entry which reads:
“
Community
service workers and interns are included. Professional nurses
generically refers to nurses registered with the SANC
and not to
rank.”
[10]
The Commissioner having looked at the evidence before him and having
considered the contents of the collective agreement continued
when it
came to the interpretation in paragraph 17 of the award onwards to
say the following:
“
Paragraph
17. In terms of the resolution rural allowance of 12 percent
is effective from the 1 July 2003, granted
to professional
nurses excluding student professional nurses. Professional
nurses is defined generically as referring to
nurses registered with
the South African Nursing Council and not to rank. Refer to
paragraph 3.1 and 5 of the resolution.
Further as per
Annexure B to the resolution the rural allowance is applicable
to the public sector professionals working in
specifically identified
hospitals and institutions. Therefore the criteria for nurses
to be covered by the resolution is
a registration with SANC and
working in the identified hospitals or institutions.
Paragraph 18.
It is trite that in the interpretation, words are to be given their
plain ordinary and popular meaning
unless it appears clearly from the
contract that the parties intend them to bear a different meaning or
the document is vague and
ambiguous. Therefore one must
ascertain and follow the intention of the parties.
Paragraph 19.
As indicated above the parties to the resolution intended to award a
non pensionable rural allowance to
professional nurses registered
with SANC working in the identified workplace. I find that the
applicants proved that they
are registered with SANC either as
nursing assistants or staff nurses. They have also proved some
of them working in Mbongolwane
Hospital, work in the institution
identified in the resolution. Further, in the absence of any
evidence to the contrary I
find that there are indeed professional
nurses. I therefore find that the correct interpretation is
that the resolution does
cover the applicants working in Mbongolwane
Hospital.
“
Paragraph
20. The term application of collective agreement refers to
whether the agreement applies to a particular set of
facts or
circumstances referred to Wallace Employment and Labour Law volume 3
Jutas. Therefore in line with my foregone finding
the
applicants working in Mbongolwane Hospital are entitled to the rural
allowance as provided for in the resolution in my finding.”
He
then granted the relief as appears in the award.
[11]
The Applicant initiated the review proceedings. Essentially the
Applicant, on the grounds for review suggests that the Commissioner
misdirected himself by interpreting the collective agreement as he
did. And that had he properly applied his mind he would
have
found that the collective agreement excludes any other nurse other
than a professional nurse meaning a nursing sister.
[12]
Secondly, the Applicants contend that the Commissioner misdirected
himself to the extent that only one employee signed the
referral form
for conciliation namely Mr Dladla, and that therefore only
Mr Dladla’s dispute should have been considered
to the
exclusion of the rest of the other group.And then thirdly, the
Applicant contends that if there is any debt thatarose between
it and
its employees such a debt has since prescribed because a period
longer than three years has since expired without any interruption
of
prescription.
[13]
I prefer to deal with the last two issues and then the first issue.
The first issue is about Mr Dladla being the only
person who
signed. The CCMA rules which are a guide to the Bargaining Council as
well applicable to them indicate clearly how a
dispute should be
referred. I need here to read Rule 4(2), Rule 3 is
headed who must sign documents, 4(2) reads:
“
If
proceedings are jointly instituted or opposed by more than one
employee documents may be signed by an employee who is mandated
by
the other employees to sign documents. A list in writing of the
employees who have mandated the employee to sign on their
behalf must
be attached to the referral document.”
[14]
This is precisely what happened at the conciliation level. Mr Dladla
signed it. There was a list attached of those employees
who appeared
to have been represented by him. Mr Dladla testified and
indicated under oath that he represented all those employees
whose
names appeared in the attached list. Therefore the first ground for
review should fail at this stage.The second ground talks
to
prescription. Section 15 of the Prescription Act
[2]
to the extent relevant reads thus:
“
15.1.
Running of prescription shall subject to the provisions of
subsection 2 be interrupted by the service on the debtor
of any
process whereby the creditor claims payment of the debt.
15.6.
For the purposes of this
section “process” includes a petition, a notice of
motion, a
rule nisi
,
a pleading in reconvention, a third party notice referred to in any
rule of Court and any document whereby legal proceedings are
commenced.”
[15]
I have already indicated here that as far back as 2006 a dispute
similar to the present was referred by the employees for conciliation
and arbitration. An award was issued on the 7 December 2006 in
favour of the employees. In my view those proceedings did amount
to a
process as is envisaged in the Prescription Act. It is trite that for
purposes of the Act it is normal for a dispute firstly
to go through
conciliation and where it fails in terms of section 191 of the
Act it then has to be referred either to arbitration
or to this court
depending on the nature of that dispute. Conciliation is therefore an
important step for a referral of a dispute
to this court. There will
be exceptions where certain matters can be referred directly to this
court such as those disputes that
come by way of section 77 of
the Basic Conditions of Employment Act.
[3]
[16]
But in my view for prescription to be interrupted in this case it was
necessary that conciliation had to take place and only
thereafter
would further steps take place. So in my view therefore the referral
to conciliation did amount to a process. And here
I rely on
section 15(6) where it says:
“
Any
document whereby legal proceedings are commenced.”
[17]
Prescription was accordingly interrupted by the referral of the
initial dispute. Whilst that dispute was not finalised through
a
review application a further dispute was referred to this Court and I
have not been told that prescription had to run again after
that
case. So, in my view, that first interruption was relevant and
therefore the ground for review based on prescription
should also
fail.
[18]
That leaves me with whether or not the Third Respondent correctly
interpreted the collective agreement. My view is that the
review test
as is espoused in the various decisions of this court and the Labour
Appeal Court and the rest of the courts is not
applicable. I am
referring to the review test set down in
Sidumo
and another v Rustenburg Platinum Mines Ltd and others.
[4]
So that
decision together with various others decisions such
as
Herholdt v Nedbank
Ltd and others
[5]
the test is not applicable.
A proper test will be the one as would be used when for instance a
condonation ruling is being challenged
on review. The question being
whether or not the commissioner correctly applied his mind into the
issues that served before him
or her.
[19]
Mr Pillay suggests the commissioner misdirected himself in that
he should have been guided by the Act, particularly the
Nursing
Act
[6]
in interpreting the agreement. And if he had done so he would have
found that there is different categories of nurses and that
a
specific group under section 31 of the Act breaks down
professional nurses – in fact gives a definition of a
professional
nurse and it distinguishes a professional nurse from
that of midwife, staff nurse, ancillary nurse and ancillary midwife.
He says
the agreement is clear it merely restricts itself to
professional nurses to the exclusion of theother categories of
nurses.
The
commissioner paid particular attention to the note underneath
3.1(a)(1) which again I will read for purposes of this record:
“
Community
service workers and interns are included. Professional nurses
referred to nurses registered with SANC and not to
rank.”
[20]
No definition has been given to me what the community service worker
means. But one can understand a community worker would
probably be a
person who is really not qualified because if it is a person who is a
professional and is qualified, there would
be no need to refer to
such an employee as a community service worker. One begins to wonder
why a community service worker should
be included who probably would
not be qualified to the exclusion of a qualified nurse whatever that
category should be.
[21]
The second concern about the interpretation which I think the
Commissioner picked up correctly is this, the note says professional
nurse generically means or refers to nurses registered with SANC and
not rank. This particular clause is important, it doesn’t
say
refers to professional nurses registered, but it says nurses
registered with SANC. It specifically says leave out their rank.
In
my view, that rank is not limited to the classification as alluded to
by Mr Pillay namely a professional nurse, a senior
professional
nurse and a chief professional nurse to accord that meaning to this
interpretation would be erroneous. It must follow
that the ranking of
nurses generically is not being referred to here. In other words any
nurse who is so qualified and is registered
with the South Africa
Council or Nursing Council. It must follow therefore that the
commissioner did not misdirect himself when
he gave the
interpretation that he did. He appears to have given the
interpretation to the collective agreement as was intended
to by the
parties themselves.
[22]
It must follow therefore that the third ground for review in this
case must fail because the Commissioner did not misdirect
himself in
the interpretation accorded to this collective agreement. Therefore
the application for review of this award by the
Applicant which is
the department should similarly fail. There is an application by the
employees which is unopposed. Necessarily
that application stands to
succeed. There is a continuous employment relationship between the
parties. I think that harmony
should be kept in that
relationship. I think if I were to order a costs order it would
be to strain that continuous relationship.
[23]
I will therefore issue the order in that respect.
· That the application to
review the arbitration award in this matter filed by the Department
of Health is dismissed.
· The application to partly
review the award filed by the employees succeeds.
· No costs order is issued.
Cele
J
Judge
of the Labour Court of South Africa
-
[1]
66 of 1995.
[2]
68 of 1969.
[3]
No 75 of 1997.
[4]
2007 BLLR 1097 (CC).
[5]
2013 (11) BLLR 1074 (SCA)
[6]
Act No 33 of 2005