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[2018] ZALCJHB 202
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Witkoppen Health & Welfare Centre v NEHAWU and Others (J552/18) [2018] ZALCJHB 202 (21 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: J 552-18
Not
Reportable
In
the matter between:
WITKOPPEN
HEALTH & WELFARE
CENTRE Applicant
and
NEHAWU First
Respondent
PERSONS
APPEARING IN ANNEXURE “AW
2” Further
Respondents
Heard:
7 June 2018
Delivered:
21 June 2018
JUDGMENT
WHITCHER
J
[1]
Pursuant to a dispute which appears to be a wage dispute but is
characterised as a ‘refusal to bargain’ dispute
by
the respondents, an advisory award and a certificate of outcome,
stating that the matter remains unresolved were issued on 19
January
2018.
[2]
On 20 February 2018 the first respondent advised the applicant that
it intended to serve a strike notice on 22 February 2018.
[3]
In response and on an urgent basis, the applicant applied to this
court for an interim order interdicting the strike. The order
was
granted and this is the return date of the order.
[4]
The crux of the applicant’s claim in its founding affidavit is
that it renders an essential service because it provides
healthcare
to an average of 6000 patients per month.
[5]
In an opposing affidavit, dated 24 May 2018, the respondents
submitted that the applicant failed in its founding papers to prove
that it is an essential service.
[6]
In its replying affidavit, dated 6 June 2018, the applicant indicated
that it had referred the matter to the Essential Services
Committee.
Both parties had attended the hearing on 4 June 2018, at which
hearing both parties were given an opportunity to make
representations to the ESC, and thereafter the ESC issued a written
ruling.
[7]
In terms of the ruling, which is attached to the replying affidavit,
the ESC found as follows:
‘
(a)
The applicant is a health and welfare non-profit organisation that
receives funding from the Government and private donors.
The
applicant services the underprivileged communities from Diepsloot,
Lion Park, Msawawa and Cosmos City. It provides primary
health care,
advanced clinical care for paediatric and complicated HIV positive
patients, HIV/TB management services, mental health
clinic, antenatal
and post-natal care, social services focusing on orphans and
vulnerable children.
(b)
The following services rendered by the applicant are essential
services:
Emergency
health services and the provision of emergency health facilities to
the community or part thereof;
‘
Nursing;
Medical
and paramedical services
Mental
health care
Diagnostic
assessments of new referrals in respect of people with intellectual
and psychiatric disabilities.
Psychological
assessments
Therapeutic
counselling services and any other form of counselling
Mental
health crises management
Court
preparation and assistance for victims who are users
Rehabilitation
services
Treatment
(including assistance with adherence to medication
Training
(only to the extent that it is offered to the mental health users
(c)
The following support services are not essential services: support
services of dispensary, laundry and transport.’
[8]
In light of the ruling by the Essential Services Committee, this
court finds that only those employees who render services as
described in (c) above of the ruling have the right to strike once
they have complied with section 64 (1)(b) of the Labour Relations
Act, 1995 (the rule pertaining to a strike notice).
[9]
It is, however, suggested (because this court does not have the power
to order same), that the parties conclude a minimum services
agreement prior to any strike.
[10]
In the premises, I order as follows:
Order
1.
The Order of this Court, issued on 27 February 2018, is confirmed in
respect of only the respondent employees who render services
as
described in (b) above of the ESC ruling.
2.
There
is no order as to costs.
________________________________
B
Whitcher
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
S Swartz
Instructed
by:
Bongani Khanyile Attorneys
For
the respondents:
V J Chabane
Instructed
by:
Mophosho Inc Attorneys