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[2018] ZALCJHB 446
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MEC for Health (Gauteng Province) and Another v Spirov and Others (JR390/15) [2018] ZALCJHB 446 (12 June 2018)
the
labour court of South Africa, johannesburg
Of interest to other
Judges
case
No:
JR 390/15
In
the matter between:
MEC
FOR HEALTH (GAUTENG PROVINCE)
First
Applicant
DIRECTOR
GENERAL OF HEALTH GAUTENG PROVINCE
Second
Applicant
and
D
R SG SPIROV
First
Respondent
COMMISSIONER
CS MBILENI
N.O.
Second
Respondent
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT SECTORAL BARGAINING COUNCIL
(‘PHSDSBC’)
Third
Respondent
Heard
:
6 June 2018
Delivered
:
12
June 2018
Date
of Reasons:
13 June 2018
Summary:
(Review- dismissal– pre-requisites of review based on
reasonableness not met)
judgment-reasons for
ORDER
LAGRANGE,
J
Introduction
[1]
This is an opposed review application. There is also a condonation
application for the late
filing of the review and an application to
make the arbitration award an order of court in the event the review
application fails.
[2]
The judgement without the reasons was handed down yesterday. Owing to
time pressures which
made it impossible to finalise the editing of
the reasons for the judgment, the reasons for the judgment were
delayed. They are
set out below.
[3]
The order handed down on 12 June 2016 read:
‘
[1]
The late filing of the review application is condoned.
[2]
The review application is dismissed.
[3]
The arbitration award of the second respondent dated 11 January 2016
under case number
PSHS 995-14/15 is made an order of court.
[4]
The applicants must pay the first respondent’s costs.’
The condonation
application
[4]
The award was handed down on 11 January 2016 and the review
application was filed on 2 March
2016 just over seven weeks later.
The review was consequently filed about a week late. Having
considered the reasons given for
the slight delay and the absence of
any demonstrable prejudice to the first respondent, implicitly
confirmed by his failure to
oppose the application, I am satisfied
condonation should be granted.
Background
[5]
The first respondent Dr SG Spirov (‘Dr Spirov’) was
summarily dismissed on 28
January 2015. At the time he was employed
as a senior registrar (deployed as a surgeon) and performed his
duties at the Pholosong
Hospital and had worked for the department
since 1991.
[6]
The reasons advanced for his dismissal arose out of his conduct
during the course of a laparotomy
in which he was the lead surgeon.
The operation was nearly complete except for closing the patient’s
abdomen, when a significant
blood spill was noticed by Dr Spirov on
his lower body. It appears to be common cause that he left the
theatre to clean himself
and change before returning to the theatre.
He claimed that the reason for leaving the theatre before the
operation was concluded
was that he had an open wound from a spider
bite on his thigh and there was a risk of infection from the blood
spill which soaked
his trousers.
[7]
The reasons given for his summary dismissal were that:
7.1
As the lead surgeon he left the operating theatre with a patient on
the operating table with the
patient’s abdomen still open and
bowels exposed, and
7.2
He wore a gown without scrubbing and proceeded with the operation on
the patient in an unsterile
environment. Essentially this reason
concerned his alleged conduct when Dr Spirov returned to the theatre
to complete the operation
rather than his observance of sterile
procedures prior to that.
The award
[8]
After recounting the evidence of all the witnesses in great detail,
the arbitrator noted,
inter-alia
, that “…misconduct
is said to take place when an employee culpably disregards the rules
of the workplace”. He
concluded that that “the
preponderance of incontrovertible facts, analysis and case law points
to the fact that the summary
dismissal of Dr Spirov was not founded
on a fair reason related to his conduct and was effected in
accordance with a fair procedure
and therefore unfair…”
[9]
On the question of whether the misconduct was proved, the arbitrator
concluded that the
evidence of the employer’s witnesses did not
support the reasons given for his dismissal.
[10]
The arbitrator ordered the retrospective reinstatement of Dr Spirov.
[11]
The concluding portion of the award is regrettably cryptic and is in
stark contrast with the extensive preceding
account of the testimony
of the various witnesses. Nevertheless, paragraphs 91 to 93 of the
award indicate the penultimate findings
which informed the
arbitrator’s decision that the dismissal was substantively
unfair. In short these were that:
11.1 The
cause of Dr Spirov leaving the theatre, namely because of the blood
spill and potentially being exposed to
blood-borne diseases as a
result of the spill could not constitute misconduct.
11.2 The
evidence did not support the conclusion that Dr Spirov had acted
negligently in the sense that he allegedly
failed to scrub before
returning to complete the operation and conducted the operation in an
unsterile environment.
11.3 No
evidence was led to support the employer’s claim that the
dismissal was effected in accordance with a
fair procedure or to
prove that the reason for the dismissal was a fair one related to Dr
Spirov’s conduct.
11.4 The
dismissal was procedurally unfair on account of being a summary
dismissal without giving Dr Spirov an opportunity
to state his case
in a disciplinary enquiry.
[12]
Further, the arbitrator’s analysis of Dr Spirov’s closing
argument provide further insights into
his reasoning.
[13]
A feature which stands out in this case is the failure of the
employer to call Dr E Michalski, a Principal
Specialist and acting
head of surgery at the time to give evidence. Dr Michalski had direct
knowledge of the incident unlike Dr
Lingham, and the employer called
as a witness. It is telling that, Dr Michalski’s unchallenged
evidence at the arbitration
was that he gave the same account of
events to the hospital management as he testified to in the
arbitration.
The Grounds of review and
response
[14]
The applicants contend that the arbitrator misconstrued or failed to
take cognizance of certain evidence
in deciding that “none of
the applicants’ witnesses testified to support a charge of
dereliction of duty when Dr Spirov
left the operating theatre without
completing the operation”. The applicants highlight the
following evidence in this regard:
14.1 Dr
Bokaka testified that Dr Spirov’s actions as a senior surgeon
were contrary to policy and endangered the
patient. The respondent
points out that Dr Bokaka, unlike Dr Nokwindla and Dr Michalski, had
no direct knowledge of the incident
and his evidence relating to the
incident itself was hearsay.
14.2 Dr
Lingham, the hospital CEO, who also had no direct knowledge of the
event, testified that:
14.2.1
He spoke to several individuals who viewed Dr Spirov’s conduct
in a serious light.
14.2.2
He viewed Dr Spirov’s conduct as serious and as unethical
professional misconduct.
14.2.3
Leaving the patient with bowels exposed constituted gross procedural
misconduct
14.2.4
Prolonged duration of anaesthetic could affect the patient’s
brain, liver and kidney.
14.3 Dr
Spirov points out that at the time he left the theatre, blood was
still oozing from the patient’s liver
and the abdomen could not
be closed up until it stopped. Moreover, the evidence showed that the
patient’s abdomen was covered
with swabs and sterile surgical
sheets while he was out of the theatre for about 15 minutes.
Moreover, no infection occurred and
the patient was discharged
earlier than he would have recommended.
14.4 The
applicants also claim that the arbitrator failed to consider the
evidence of Sister Maphothoma who testified
that Dr Spirov told her
that he was not going back to the theatre and she could tell her CEO
that. The arbitrator also failed to
take account of her evidence that
when a patient’s bowels are exposed for long periods there is a
risk of infection.
[15]
Further, the hospital argues that the arbitrator misconstrued or
failed to take account of the evidence of
several witnesses that his
hands were dry when he came back to the theatre in concluding that no
evidence was led to establish
a charge of negligence on account of
allegedly not scrubbing before returning to proceed with the
operation.
[16]
Dr Spirov retorts that the evidence showed that he used appropriate
soap (alcohol rub) and double gloved
before coming back to theatre.
Dr Nokwindla corroborated that he had gloved and put on a new gown.
Dr Spirov pointed out that full
scrubbing would have taken longer.
[17]
Lastly, the applicants contend that the arbitrator ignored the
evidence that Dr Spirov did not cooperate
with the employer’s
investigations even though he was provided with several opportunities
to present reports and statements,
in finding that the dismissal was
conducted without following a fair procedure.
[18]
In this regard, Dr Spirov claims there was evidence that he was
willing to co-operate in an investigation,
but the hospital
management did not want to classify the event as an accident, which
would have focussed on the event of the blood
spill and how he
reacted to that, rather than an incident describing his conduct of
leaving the theatre and not scrubbing up properly
before returning.
Whatever the merits of this debate, it was common cause that Dr
Spirov was summarily dismissed without a disciplinary
enquiry being
conducted.
[19]
In any event, in argument, the applicants wisely did not persist in
arguing that Dr Spirov’s dismissal
was procedurally fair.
[20]
The applicants also claim that the arbitrator admitted the evidence
concerning protective gowns and medical
reports which were not in the
parties’ bundles thereby allowing the applicants to be
‘ambushed’.
Evaluation
[21]
It is now
trite law that it is insufficient for a party on review to simply say
that certain evidence was not considered or was
misconstrued. The
omission or misdirection must fundamentally have affected the
arbitrator’s reasoning to such an extent
that the arbitrator
necessarily could not have reached the findings he or she did, if
that evidence had been taken into account
or if the misdirection had
not occurred. Conversely, it means that the effect of rectifying that
omission or misdirection inevitably
would lead to a different
outcome. In other words, the consequences of rectifying the failure
must dramatically alter any conclusion
that the outcome was one that
a reasonable arbitrator could reach. In
Head
of Department of Education v Mofokeng and Others
[1]
the Labour Appeal Court has expressed the principle thus:
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the enquiry.
In the final analysis, it will depend on the materiality
of the error
or irregularity and its relation to the result. Whether the
irregularity or error is material must be assessed and
determined
with reference to the distorting effect it may or may not have had
upon the arbitrator's conception of the enquiry,
the delimitation of
the issues to be determined and the ultimate outcome. If but for an
error or irregularity a different outcome
would have resulted, it
will
ex hypothesi
be material to the determination of the
dispute. A material error of this order would point to at least a
prima facie unreasonable
result. The reviewing judge must then have
regard to the general nature of the decision in issue; the range of
relevant factors
informing the decision; the nature of the competing
interests impacted upon by the decision; and then ask whether a
reasonable
equilibrium has been struck in accordance with the objects
of the LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity or error material to the
determination
of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the issues,
with the
result that the award may be set aside on that ground alone.
The arbitrator however must be shown to have diverted from the
correct
path in the conduct of the arbitration and as a result failed
to address the question raised for determination.
[22]
The first difficulty with the current review application is that no
explanation was advanced as to why any
of the supposed omissions
which the arbitrator is alleged to have committed in relation to his
evaluation of evidence, would necessarily
fundamentally shake his
findings or render them unsustainable if he had been compelled to
factor that evidence into his reasoning.
The grounds of review are
set out more like grounds of appeal. As such there is no a proper
case for review based on grounds of
reasonableness made out in the
founding affidavit.
[23]
In any event, if I am wrong, I will consider the grounds raised as if
the alleged omissions or misdirections
had been properly framed as
ones that would have fatal consequences for the reasonableness of the
arbitrator’s findings.
I have not repeated the responses of Dr
S to the grounds of review, which are summarised above, but most of
them are trenchant
retorts to the applicants, which I accept as part
of the reasons why this review should not succeed.
The arbitrator’s
finding that the evidence of applicants’ witness to support a
finding of dereliction of duty when Dr
Spirov left the operating
theatre without completing the operation
[24]
Before considering this ground of review, it is important to mention
that this finding was clearly one of
the findings made by the
arbitrator in determining that Dr Spirov was not guilty of misconduct
on the first charge. It amounts
to an expression of the arbitrator’s
view that the applicants had failed to prove their case against Dr
Spirov through their
own evidence.
[25]
It was common cause that Dr Spirov abruptly left the operating
theatre after the main surgical operation
was completed but before
the closing up of the patient’s abdomen had finished. It was
also essentially common cause on the
evidence that he left abruptly
when he noticed that his pants were soaked in blood. There was no
dispute that this must have resulted
from a blood spill from the
operation. The applicants’ witnesses in the operation were also
evidently aware that it was Dr
Spirov’s discovery that his
trousers were soaked in blood which prompted him to leave the
theatre, though they might not
have been aware at the time of the
reason for his abrupt departure, namely the presence of an open wound
from a spider bite on
his thigh which he feared might be contaminated
by the blood spill and created the risk of him being infected by a
blood-borne
disease.
[26]
It was suggested that Dr Spirov could have asked another surgeon to
perform the operation in view of his
risk of exposure to infection
because of his open sore, but it is also not disputed that a readily
available substitute surgeon
was not a reality at the hospital, nor
was Dr Spirov’s contention that the operation was an emergency
operation seriously
disputed. It was also agreed that there was no
existing protocol at the hospital requiring the disclosure of any
pre-existing injury
which might raise the risk of a practitioner
being infected, or which forbade a person in Dr Spirov’s
position from conducting
surgery, under circumstances where he had an
open wound.
[27]
There was also undisputed evidence that at the time he left the
theatre, there was still blood seeping from
the patient’s liver
and that the abdomen could not be closed until that bleeding had
stopped. When Dr Spirov left the theatre
two other junior doctors, Dr
Nokwindla and Dr Odimbuleko, a floor nurse and the scrub nurse,
Sister Maphothoma, remained in attendance.
On the evidence it was
more than reasonable to conclude that his absence from the operating
theatre had not been longer than approximately
15 minutes, during
which time his uncontested evidence was that he had waited for a
bathroom to become unoccupied so that he could
wash the blood off his
legs, change his clothes, and clean up before re-entering the
operating theatre. It was also accepted that
in an operation of that
nature it could not normally have been completed in that time because
it would usually take that long to
determine if bleeding had stopped.
[28]
There was conflicting evidence about whether the patient’s
bowels were exposed, but the scrub nurse
herself testified that there
were still swabs in place to staunch bleeding and the abdomen was
covered with a sterile green gown.
It was accordingly not
unreasonable for the arbitrator to conclude that the patient’s
bowels were not simply left exposed
during Dr Spirov’s absence
of approximately 15 minutes. Moreover, it was not even obvious from
the evidence that the bowels
would normally have been covered while
the residual bleeding was still being monitored.
[29]
There was ample evidence that Dr Spirov was in an agitated state when
he left the theatre, which he did not
dispute. It appears common
cause amongst the eyewitnesses that the source of his agitation was
the extent to which his upper legs
and area below his waist had
become soaked in blood. He was also clearly partly angry because his
exposure would have been prevented
if the surgeons were issued with
proper full length rubberised gowns instead of the short white gowns
which did not cover them
properly.
[30]
The evidence also showed that what was not known by the other
professionals in the theatre was why he became
so agitated or left so
abruptly, namely his risk of infection from a blood borne disease
owing to an exposed spider bite on his
thigh. However, it was never
contested that his concern about possible infection from the blood
spill was irrational or trivial
given that his unhealed spider bite
was still an open wound. Both Dr Nokwindla and Dr Michalski testified
that given the risk of
infection, it was acceptable that Dr Spirov
would have sought to minimise the risk of infection by cleaning
himself up.
[31]
Essentially, if one looks at the applicants’ case it adopted a
somewhat simplistic view that there
was no balancing of risk to be
undertaken by Dr Spirov in deciding whether he could not leave the
theatre without finalising the
operation and expose himself to the
risk of infection for the duration of the operation. The context of
making this decision was
that he left at a point when there was more
than sufficient evidence supporting the conclusion that there was
little to be done
until the patient’s residual bleeding had
been stopped which would have taken about the same time as he was
absent from the
operating theatre.
[32]
Although it was not disputed that a patient’s bowels should not
be unnecessarily exposed, the evidence
did not support the conclusion
that they were exposed for a period longer than they would have been,
even if Dr Spirov had not
left the theatre, owing to the inability to
close up the abdomen until the bleeding had stopped and the time that
normally took.
[33]
On the claim that he allegedly told Sister Maphothoma that he was not
going back to the theatre and she could
tell her CEO that, that might
have been true given his anger about the inadequacy of the surgical
gowns. But that evidence does
not advance the applicants’ case
on the charge. The evidence showed that whatever anger he had
expressed, he returned to
complete the operation within a time period
that would have been a normal pause in the operating procedure,
because of the residual
bleeding. It was also not disputed that he
actually declined Dr Michalski’s offer to finish the operation
in his stead.
The evidence of not
scrubbing in before re-entering the theatre.
[34]
The claim that he conducted the operation in an unsterile environment
was essentially confined to the scrubbing
issue. Was there no
justifiable basis for the arbitrator to infer that Dr Spirov had
scrubbed before re-entering the operating
theatre? There was no
dispute that Dr Spirov had put on a clean gown, and had ‘double
gloved’ before finishing the
operation. There was also
undisputed evidence that this was the primary protection against
contamination. The only issue was whether
or not he had scrubbed
before resuming the operation.
[35]
The key evidence in this regard was the evidence of the scrub nurse,
who could not say whether or not Dr
Spirov had scrubbed before
entering the theatre, but that when he entered the theatre to put on
the gloves, his hands did not appear
to be wet and did not require to
be dried in the theatre before his gloves were put on, which was
normally the case if someone
had just scrubbed. The other witness who
testified that Dr Spirov’s hands were dry was Sister Mabaso,
the operational manager
at the hospital. It is unclear from her
evidence at what point she claimed she saw that Dr Spirov’s
hands were dry but it
seems unlikely it could have been when he
re-entered the theatre because her own evidence was that he was
already back in the theatre
before she returned to it after the
incident.
[36]
Although it seems clear that the normal procedure would have been to
have scrubbed up just before entering
the theatre in a basin adjacent
to the theatre, neither witness could dispute that Dr Spirov could
have scrubbed his hands and
arms in the bathroom where he changed his
soiled clothes, which had an elbow tap fitting that allowed the user
to open and close
the tap without using their hands. His version that
he had cleaned his hands with alcohol in addition to washing with
soap was
also not challenged when he presented it, though the use of
alcohol was not put to the applicants’ witnesses.
[37]
On a balance of probabilities, I accept that another arbitrator could
conclude that there was sufficient
circumstantial evidence to draw an
inference that Dr Spirov did not scrub up before entering the
theatre. But that does not mean
that the arbitrator’s
alternative conclusion that Dr Spirov did scrub up is one that no
reasonable arbitrator could have
reached on the evidence, bearing in
mind Dr Spirov’s very extensive experience of nearly 35 odd
years as a surgeon and his
obvious awareness of surgery hygiene and
the need to avoid contamination. If the reason relied on by the
applicants had been that
Dr Spirov had not done his scrubbing in
accordance with the standard practice which appeared to be that
scrubbing up was done in
the basin adjacent to the theatre, which Dr
Spirov readily concedes he did not do, a finding on that issue in
favour of the applicants
would have been justified. However, the
complaint against Dr Spirov was not articulated in such a narrow form
and the arbitrator
only had to decide if Dr Spirov had scrubbed up
before re-entering the theatre.
Introduction of medical
reports and gown samples
[38]
Regarding the introduction of medical reports, the applicants also
claims that the arbitrator admitted the
evidence concerning
protective gowns and medical reports which were not in the parties’
bundles thereby allowing the applicants
to be ‘ambushed’.
The applicants do not explain how their ability to present their case
was prejudiced. Moreover, insofar
as the samples of the protective
gowns are concerned, the type of gowns used was something within the
applicants’ knowledge
as was demonstrated by the evidence given
by its witnesses on the different type of surgical gowns provided. I
find nothing in
this ground that would warrant setting aside the
award.
Concluding
remarks and costs
[39]
In conclusion, I am not satisfied that the applicants have
established grounds of review that would warrant
setting aside the
arbitrator’s finding on the reasons given for Dr Spirov’s
dismissal. That is not to say his conduct
was free from criticism. He
ought to have communicated more clearly with his team why he felt it
necessary to leave the theatre
as they would not have been aware of
his potential exposure to blood borne diseases, even if they realised
it was the blood spill
which prompted him to leave the theatre
because he had drawn their attention to it. But his conduct was not
arbitrary nor undertaken
without balancing the risks to himself and
the patient. He also might be criticised for not scrubbing up in the
standard way, which
might have demonstrated a degree of remissness on
his part, but even if he had been charged with that, such conduct
would not have
been the kind that would have warranted his dismissal,
particularly given his very lengthy and untarnished record prior to
the
incident.
[40]
What is particularly regrettable about this case is that the matter
could have been addressed and resolved
without the parties incurring
all the expenses of litigation and the indirect costs thereof if the
applicants had simply held a
disciplinary enquiry before dismissing
Dr Spirov. The applicants have only themselves to blame for the
eventual expense they will
incur in back-pay and costs. It is also
because the applicants failed to hold a disciplinary enquiry before
dismissing Dr Spirov
that I decided to award costs against them.
_______________________
R
Lagrange
For
the Applicants:
G M Yeko of
Ngcebetsha Madlanga Inc.
For
the Respondent:
Instructed by
G J Scheepers
VZLR Attorneys
[1]
(2015) 36
ILJ
2802 (LAC) at 2813