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[2017] ZALCD 5
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Singh v MEC for the Department of Health: KwaZulu-Natal and Others (D720/15) [2017] ZALCD 5 (31 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Reportable
CASE
NO: D720/15
In
the matter between:
BHAVNA
SINGH
Applicant
and
MEC
FOR THE DEPARTMENT OF HEALTH:
KWAZULU-NATAL
First
Respondent
SIFISO
MTSHALI
Second
Respondent
BONGANI
SHEZI
Third
Respondent
LONDIWE
BUTHELEZI
Fourth
Respondent
Heard:
12 October 2016
Delivered:
31 January 2017
Summary:
Review application –
employer
in public sector - employment disputes in public sector
-
resolution
of disputes in the public sector to be resolved through the same
mechanisms and in accordance with the same values as
in the private
sector – failure to appoint trainee an unfair labour practice
dispute to be referred to a bargaining council.
JUDGMENT
CELE
J
Introduction
[1]
This application in
terms of section 158 (1) (h) of the Labour Relations Act
[1]
seeks to review and set aside the decision of the Third Respondent,
acting in his capacity as the First Respondent’s Deputy
Director-General: Corporate Management Services, to appoint the
Fourth Respondent to the training post of Registrar Dermatology
under
reference number M212/2015, (“the decision”). The
Applicant seeks an Order appointing her to the contested post.
All
four respondents oppose the application and the first three raised a
jurisdictional point
in
limine
.
Factual
Background
[2] The
facts of this matter are by and large common cause and I am indebted
to both parties for their succinct summary thereof.
The Applicant was
registered as a medical practitioner by the Health Professions
Council of South Africa with effect from 1 January
2010. She has been
employed by the First Respondent in the position of Medical Officer
Grade 1 in the Department of Dermatology
(the Department) since 13
June 2011.
In
2015 the First Respondent advertised
training
posts of Registrars
in
various disciplines with the closing date of 8 May 2015. The advert
stated that the Department was an equal opportunity, affirmative
action employer, whose aim was to promote representivity in all
levels of all occupational categories in the Department.
The
Applicant and other candidates applied for the advertised training
post of Registrar within the Department of Dermatology. The
post was
allocated reference number M212/2015. The Applicant was one of the
candidates shortlisted and interviewed for the post.
[3] At
the interview held on 3 June 2015, the Applicant scored the highest
with 82% and the interview panel recommended that she
be appointed to
the post. The interview panel further recommended that Dr N Moodley
who scored 76% and Dr L N Buthelezi
(“the Fourth
Respondent”) who scored 75% be appointed first and second
alternatives respectively, in the event of the
Applicant declining
the post. The interview panel’s recommendations served before
the Registrar Programme Steering Committee
on 22 June 2015.
[4] The
recommendation in respect of the Applicant was upheld although the
Programme Steering Committee effected changes to the
recommendations
made in respect of some of the other disciplines on the basis of
inter alia
,
employment equity. It is apparent from the minutes that both the
interview panel and Steering Committee had regard to the First
Respondent’s Employment Equity Plan and the Employment Equity
Targets in making their recommendations. On 25 June 2015 and
one day
after the Steering Committee submitted its final recommendation, the
Third Respondent
as
per the letter of even date, wrote to the Registrar Steering
Committee referring to their meeting of 22 June 2015, notifying
them
that he could not approve their recommendation because it was
contrary to the Employment Equity Targets of the Department.
While
pleadings have Employment Equity Targets of the Department for the
level 12 doctors none were supplied for the Registrar
Programme
itself. The Third Respondent appointed the Fourth Respondent as the
suitable candidate against that post.
The
change was recorded by way of manuscript notes made on the margin of
the recommendation document. The Steering Committee made
recommendations for appointments in other medical disciplines as
follows:
v
In the discipline of
Anaesthetics Dr S Singaram, an Indian Female was recommended for the
placement in circumstances in which one
Dr T Gumede, an African
Female has also been recommended;
v
In the discipline of
Cardiothorasic Surgery Dr D Sethurayer, an Indian Male, was
recommended for placement when Dr N Xhakaza, an
African Male had also
been recommended;
v
In the discipline of Internal
Medicine Dr S Temmers, a Coloured Male was recommended for placement
when Dr B Njiyela, an African
Female had also been recommended;
v
In the discipline of
Occupational Medicine Dr R Omed, an Indian Male was recommended when
Dr M Mandimika, an African Female had
also been recommended;
v
In the discipline of Public
Health Medicine, Dr A Naidoo, an Indian Female was recommended when
Dr N Zulu, an African Male had also
been recommended;
v
In the discipline of Radiology
Dr C A Surridge, a White Female was recommended when Dr M Dias Dos
Santos, an African Female had
also been recommended.
[5]
On
2 July 2015 the Applicant wrote to the First Respondent asking for
reasons for non-appointment/ non-promotion and the Second
Respondent
replied on 7 July 2015 giving her reasons and the procedure that was
followed in reaching the decision not to appoint
/promote her and he
confirmed
that although the Steering Committee did not make any changes to the
recommendations of the interview panel,
“
in
the final analysis, the
overall
equity target of the programme
was utilized in appointing the candidate.”
[6]
The Applicant was not satisfied with the written reasons that she
received as a response to her grievance to the First Respondent
and
she lodged the present application, with Ms L R Naidoo appearing for
her. Mr C M Kulati appeared for the first three respondents
and Mr U
Jivan appeared for the Fourth Respondent. In the main the applicant
contends that the Third Respondent failed to explain
to her how she,
out of five Indians who had been recommended for placement was chosen
for a de-selection. This was in circumstances
where African
candidates were equally eligible for such appointment. She contends
that in the absence of the Third Respondent being
able to rationally
and objectively justify excluding her, his decision was arbitrary.
The Third Respondent said that he worked
with Employment Equity
Targets on a monthly basis and so it did not take him long to
consider the recommendations of the Selection
Panel and the
ratification of the Steering Committee so as to make proper decision.
The Applicant averred that the Third Respondent
did not apply his
mind to all the facts and he rendered a decision which was arbitrary
and irrational. All Respondents were together
in opposing this
application.
[7]
As at the close of pleadings about fourteen months have elapsed since
the Fourth Respondent was appointed by the First respondent
to the
contested post. Mr Kulati raised a jurisdictional point which if
sustained can dispose of this application. That point must
therefore
be considered first, before the grounds for review outlined by the
Applicant.
In
limine
point
[8]
Mr Kulati submitted
that after receiving the reasons for her
non-appointment/non-promotion the Applicant, if not satisfied, was
supposed to have approached the Public Health and Social Development
Sectorial Bargaining Council (“PHSDSBC”), hereinafter
referred to as the “Bargaining Council” for a Section 186
(2) (a) dispute resolution, before approaching this Court
on review
in terms of Section 145 of the LRA. Instead the Applicant chose to
bypass the LRA procedure and approached this Court
in terms of
Section 158(1) (h). He contended further that it is trite and settled
law now that Section 158(1)(h) of the LRA can
only be used to review
a decision that is an administrative action, which falls within the
confines of Section 33 of the Constitution
[2]
and Section 1 of the Promotion of Administrative Justice Act
(PAJA),
[3]
and set it aside on the grounds that it was irrational and
unreasonable, being the grounds of review of administrative action
stipulated in Section 6(2)(f)(ii) and Section 6(2)(h) of PAJA
respectively. There further submissions on the merits of the
application.
[9]
The Applicant submitted that
the
Third Respondent’s decision to appoint the Fourth Respondent to
the training post of Registrar Dermatology offends against
the
principle of legality.
[4]
In such a
review challenge, Applicant contends, the sufficiency of the
functionary’s reasons and their connection with his
decision is
squarely in issue.
[5]
Further submissions
of the Applicant are that:
1)
The
First Respondent has failed to produce a copy of the equity targets
relating to the Registrar Training Programme. In the absence
of
producing the equity targets of the programme, the decision of the
Third Respondent to substitute the Fourth Respondent for
the
Applicant is arbitrary and unjustifiable.
2)
Notwithstanding
the stated reason for the decision being premised on the “
equity
target of the programme”
,
the Third Respondent seeks to rely on the equity targets for the
First Respondent’s entire staff establishment. In particular,
he contends that the appointment of the Fourth Respondent, who
is an African female, was intended to address the over
subscription of Indian females “
in
the First Respondent’s employ at salary level 12 which is the
category of salary in which the Registrar Training Programme
appointments fall.
The
suggestion that the appointment of the Fourth Respondent in the
Applicant’s stead would have any effect on the equity
targets
for Indian and African females at salary level 12 is simply untenable
and frankly, disingenuous.
3)
The
Third Respondent fails to disclose to Court that both the Fourth
Respondent and the Applicant were already at salary level 12
prior to
the former’s appointment to the training post and that both
remained on such salary level thereafter. Accordingly,
a lateral
transfer or either of them to a Registrar’s post at the same
level would have had no impact on the demographic
profile of females
at level 12. It would neither have reduced the number of Indian
females nor increased the number of African
females at that salary
level.
4)
In
the circumstances, the equity targets, purportedly relied upon by the
Third Respondent in effecting the change, are simply irrelevant.
More
importantly, they do not provide a lawful or rational basis for his
decision.
Evaluation
[10]
During the presentation of this matter Ms Naidoo for the Applicant
denied that the appointment sought by the Applicant to the
contested
post has a promotional effect and that therefore section 186 (2) of
the LRA applies. In her further supplementary affidavit
the Applicant
complained of her non- appointment and said:
“
On
this occasion however, the reasons for de-listing me are so arbitrary
and contrive that I can no longer passively sit by and
allow my
career progression to continue to stagnate.”
[11]
In her own words and understanding of the implications of the
appointment, she would have a career progression if she
appointed against the contested post. The appointment would entail a
four year training of the candidates who, upon passing the
final
examination could then be appointed as Registrars, depending on the
availability of posts. The undisputed evidence of the
Applicant was
that candidates for appointment into the registrar on training would
retain their salary levels. The Applicant and
the Fourth Respondent
retained salary level 12. Clearly therefore, the appointment does not
equate to a promotion but to a right
to being trained as a Registrar.
Promotion
was defined in
Mashegoane
v University of the North
[6]
as being elevated or appointed to a position that carries greater
authority and status than the current position an employee is
in.
This includes the non-appointment of employees to newly created
posts, provided that appointment to such a new post would have
elevated the employee status. The appointment sought by the
Applicant would not immediately elevate or appoint her to a position
that carried greater authority and status than her current position.
[12]
Section 186 (2) (b) of the LRA to the extent relevant reads:
“
Unfair
labour practice means any unfair act or omission that arises between
an employer and an employee involving-
a)
Unfair
conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissal for a reason relating
to probation) or training of an employee or relating to the provision
of benefits to an employee.”
[13]
In terms of section 186 (2) (b) of the LRA therefore, unfair labour
practice means any unfair omission that arises between
an employer
and an employee involving unfair conduct by the employer relating to
the training of an employee. This is precisely
what the Applicant is
complaining about. Over a period of years she has been left out of
training towards being a Registrar. While
she was the best candidate
for a
training post of
Registrar: Dermatology, she was
de-selected.
Clearly therefore, her complaint is one of unfair labour practice
relating to training.
[14]
As correctly submitted by Mr Kulati, the Applicant
was
supposed to have approached the PHSDSBC for a Section 186 (2) (a)
dispute resolution, before approaching this Court on review.
She
instead bypassed the LRA procedure and approached this Court in terms
of Section 158(1) (h).
[15]
The Applicant takes issue with the decision of the Third Respondent,
being the Deputy Director-General: corporate Management
Services,
serving under the First Respondent. The decision assailed pertains to
employment disputes in the public sector. The law
governing reviews
in this field has become trite. In
Chirwa
v Transnet Ltd & Others
[7]
the Constitutional Court had the following to say:
“
Support
for the view that the termination of the employment of a public
sector employee does not constitute administrative action
under
Section 33 can be found in the structure of our Constitution. The
Constitution draws a clear distinction between administrative
action
on the one hand and employment and labour relations on the other. It
recognises that employment and the labour relations
and
administrative action are two different areas of laws … The
Constitution contemplates that these two areas will be subjected
to
different forms of regulation, review and enforcement …
The Constitution contemplates that the labour relations
will be
regulated through collective bargaining and adjudication of unfair
labour practices. … The principle underlying
section 23 is
that the resolution of employment disputes in the public sector will
be resolved through the same mechanisms and
in accordance with the
same values as in the private sector, namely, through the collective
bargaining and the adjudication of
unfair labour practice as opposed
to judicial review of administrative action”.
[16]
What is clear from the
Chirwa
judgment is that the resolution of employment disputes in the public
sector has to be resolved through the same mechanisms and
in
accordance with the same values as in the private sector. That
mechanism is through the collective bargaining and the adjudication
of unfair labour practice as opposed to judicial review of
administrative action. Further, in
Gcaba
v Minister of Safety and Security and Others
[8]
which is a case that dealt with failure to appoint, the
Constitutional Court, inter alia, held that:
“
Generally,
employment and labour relationship issues do not amount to
administrative action within the meaning of PAJA. …
Section 23 regulates the employment relationship between employer and
employee and guarantees the right to fair labour practices.
…
Section 33 does not regulate the relationship between the State as
employer and its workers. When a grievance
is raised by
an employee relating to the conduct of the State as employer, and it
has few or no direct implications or consequences
for other citizens
it does not constitute administrative action …”.In
Chirwa
Ngcobo J found that the decision to dismiss Ms Chirwa did not amount
to administrative action. He held that whether
an
employer is regarded as “public” or “private”
cannot determine whether its conduct is administrative
action or an
unfair labour practice. Similarly, the failure to promote
and appoint Mr Gcaba appears to be a quintessential
labour related
issue, based on the right to fair labour practices, almost as clearly
as an unfair dismissal. Its impact is felt
mainly by Mr Gcaba and has
little or no direct consequence for any other citizens. Accordingly,
the failure to promote and appoint
the Applicant was not
administrative action.
”
[17]
As with the
Chirwa
decision, the failure to appoint the
Applicant is labour related issue, based on the right to fair labour
practices, almost as
clearly as an unfair dismissal. The remedy of
the Applicant lay in referring her dispute to the relevant bargaining
council and
not straight to this Court.
[18]
I accordingly issue the following order, having reflected on the
costs implications and the on-going employer/employee relationship,
bearing in mind that the Applicant has been waiting for years already
for her chance to be trained:
18.1
The
point in limine is upheld with the consequence that the review
application is dismissed.
18.2
No
costs order is made.
_________
Cele J
Judge of the Labour
Court of South Africa.
ADDENDUM:
1.
Yesterday, the 30
th
January 2017, I was informed for the first time by my Secretary that
a Notice of withdrawal of the Review Application was filed
with the
Court on or about 14 December 2016.
2.
This information was conveyed
to me after I had finished the judgment and had given an instruction
that parties be informed of the
set down date for the handing down of
the judgment.
3.
Today, 31 January 2017, I
proceeded to hand down the judgment. None of the parties were in
Court attendance.
4.
Depending on the terms of
settlement of the matter between the parties, of importance to them
is that after I had considered the
application I decided that
no costs order be issued.
_______
Cele J
Judge of the Labour Court of South
Africa.
APPEARANCES:
FOR THE
APPLICANT: Ms L R Naidoo
Instructed By Anand-Nepaul Attorneys
FOR THE
FIRST TO THE THIRD RESPONDENT: Mr Kulati
Instructed By the State Attorneys,
Durban
FOR THE
FOURTH RESPONDENT: Mr Jivan
Instructed By Jivan and Company.
[1]
Act Number 66 of 1995 hereafter
referred to as the LRA.
[2]
The South African
Constitution, 1996
[3]
Act 3 of 2000
[4]
See
De
Villiers v Head of Department, Education, Western Cape Province
(2010) 31 ILJ 1377 (LC);
POPCRU
v Minister of Correctional Services
[2011] 10 BLLR 996
(LC) at para [30]; and
Public
Servants Association of SA v Minister of Labour
(2016) 37 ILJ 185
(LC) at paras [54] to [62]
[5]
See
SA
Police Service v Solidarity obo Barnard
(2014)
ILJ 2981 at para [103]
[6]
[1998] 1 BLLR 73
(LC).
[7]
[2008] (2) BLLR 97
(CC)
[8]
[2009] 12 BLLR
1145
(CC)