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[2019] ZALCJHB 148
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Democratic Nursing Organisation of South Africa (DENOSA) obo Ramaroane v Member of the Executive Council for Health, Gauteng Province and Another (J1196/19) [2019] ZALCJHB 148; (2019) 40 ILJ 2533 (LC) (19 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Of Interest to other
Judges
Case No: J 1196/19
In the matter between:
DEMOCRATIC NURSING
ORGANISATION OF SOUTH AFRICA
(DENOSA) obo DAMARIA
PHEMELO RAMAROANE Applicant
and
MEMBER OF THE
EXECUTIVE COUNCIL FOR HEALTH,
GAUTENG
PROVINCE
First Respondent
S.G LOURENS NURSING
COLLEGE
Second
Respondent
Heard: 5
June 2019
Delivered:
19 June 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
DENOSA brought this urgent application on behalf of its member, Ms
Phemelo
Damaria Ramaroane, a student nurse/employee with the second
respondent (Nursing College), to seek orders reviewing and setting
aside the decisions of the College Council Disciplinary Committee in
terms of which the training of Ramaroane was terminated, and
to remit
the issue of sentence to the College Council Disciplinary Committee
for reconsideration before another constituted committee.
In the
alternative, that this Court should replace the decision with such an
order that it deems just and appropriate.
[2]
The common cause facts leading to this application
are essentially as follows;
2.1
Ramaroane was accepted as a student nurse by the Health and Social
Development
Department of the Gauteng Provincial Government in
January 2016, to undertake a four year Diploma Course that would
have led
to her registration as a Nurse (General, Psychiatric,
Community) and Midwife. She was required to attend classes and
undertake
studies/research and clinical practice at the College.
2.2
The nature of her association with the Department was such that she
was as a
student nurse, also granted temporary employment for the
duration of her training course, and was accordingly remunerated.
2.3
As a student nurse/employee, she was subject to various codes and
policies,
including Policy Guidelines Regarding the Implementation
and Management of Conditions of Employment of Nursing Students (The
Policy);
the Memorandum of Agreement (For Students on the Four Year
Course Leading to the Registration as a Nurse) as entered into with
the Department; the Labour Relations Sanctioning Guidelines for the
Public Service; and the Disciplinary Code and Procedures for
the
Public Service (Resolution 1 of 2003: Disciplinary Code and
procedure).
2.4
The College has a permanent orientation programme which is run at the
beginning
of each year where the new student nurses are orientated on
the College’s regulations, programmes and other applicable
prescripts.
That programme runs for two weeks for first year
students, where the students are further provided with copies of the
regulations,
placements, and examination timetables.
2.5
Senior or old students are also required to attend these yearly
programmes for
the purposes of refreshing them on the regulations and
other prescripts governing their training. Their programme runs for
one
day.
2.6
All the students are further required to sign for receipt of all
documents and
to make an undertaking that they will, or have
familiarised themselves with their contents, that they will
continuously update
themselves with these documents, and act
accordingly during the period of their studies.
2.7
Ramaroane was a fourth year nursing student, and as is the norm, in
January 2019,
she acknowledged receipt of all the documents
referred to above.
2.8
As part of the re-orientation, Ramaroane was scheduled to undertake a
test in
Community Nursing Science course on 25 January 2019. The
cover page of the test script contained the test regulations and
instructions
to students. Significant with the cover page of these
tests is a bold message stating that; ‘
Misconduct of any
nature will be referred to the College Council Disciplinary Committee
and may lead to termination of training
’.
2.9
In simple terms, and for the purposes of this application, students
were specifically
warned against cheating when undertaking tests and
examinations. This message was equally clear in the Nursing College
Regulations,
which provided
inter alia
that; “
Students
found copying during Council examinations should not be allowed to
write another Council examination for a period of two
years”
(Sic).
2.10
Ramaroane’s case is that on the day of the test, she was
anxious about her preparedness.
Having arrived at the test venue and
prior to the test scripts being distributed, she went out of the
venue and made notes of certain
medication terms that she expected to
be included in the test on her right thigh. She then went back into
the test venue and took
the test. Whilst taking the test, she was
overcome with guilt and had started to rub off the
incriminating information from
her thigh. It was at that point that
one of the lecturers saw her and approached her to establish what she
was up to.
2.11
The nub of this extraordinary version of events is that Ramaroane was
caught cheating in the
examination by one of the lecturers, and was
promptly told to leave the venue. Once outside the venue, she
apologised for her conduct
and expressed regret. Pictures of the
offending material on her right thigh were taken by one of the
lecturers, and she was then
allowed to retake a different test.
2.12
Flowing from that incident, Ramoroane was then asked to write a
report to explain her conduct.
In her ‘report’, she
simply repeated the above version and apologised for making a
‘mistake’.
2.13
A disciplinary process followed on 1 March 2019. She had
pleaded guilty to all the
charges against her (except the charge of
dishonesty), and was issued with a sanction of termination for two
years as provided
for in the Nursing College Regulations with effect
from 31 March 2019.
2.14
Ramaroane lodged an appeal and complained about the process followed
in terminating her training
and employment. In particular, she
complained about not being afforded an opportunity to plead in
mitigation prior to the sanction
being issued; that the sanction was
harsh; that she had shown contrition, and had immediately apologised
for her conduct after
she was caught out.
2.15
The College Council Appeal Committee on 26 April 2019
rejected Ramaroane’s appeal.
She further accuses that Committee
of having failed to address her various grounds of appeal.
Evaluation:
[3]
This
application is brought before the Court on an urgent basis in terms
of the provisions of section 158(1)(h) of the Labour Relations
Act
(LRA)
[1]
, as Ramaroane seeks to
have the decision of the College Disciplinary and Appeal Committees
to terminate her services be reviewed
and set aside. She cites a
number of grounds including that both Committees failed in not
affording her an opportunity to present
mitigating factors prior to
considering an appropriate sanction; to have regard to the relevant
prescripts including the Disciplinary
Code and Procedure for the
Public Service (Resolution 1 of 2003); and essentially failing to
consider the factors that would have
led to a less severe sanction.
[4]
Obviously the first hurdle for Ramaroane to surmount is to convince
this
Court that her matter deserves the urgent attention of this
Court, and in this regard, it is my view that she woefully failed for
the following reasons;
4.1
This application was launched on 9 May 2019 in
circumstances where
her dismissal was confirmed by the Appeal
Committee on 26 April 2019. She contends that there was no
inordinate delay
in bringing it, and this is clearly not correct.
4.2
The delay of two weeks within which it took DENOSA to launch this
application
is explained as being attributable to its own internal
workings and the usual excuse of there being holidays in between.
These
are hardly acceptable excuses given the alleged urgency, and it
is further not correct that the respondents have not been prejudiced
by that delay. In the end, the urgency in this case in the light of
the delays mentioned above is clearly self-created.
4.3
Aligned to the need to bring a matter as expeditiously as possible
when the
source of complaint arose is whether facts have been placed
before this Court to satisfy it that indeed the matter deserves its
urgent attention.
4.4
The starting point is that as soon as this Court allows matters
involving an
ordinary dismissal of employees to be heard on an urgent
basis when on the common cause facts, the employee’s conduct is
the very cause of the quandary that he or she finds him/herself in,
then the flood gates for any matter to be determined on an urgent
basis in this Court will be opened. This will effectively erode the
purpose of the urgent roll.
4.5
There is everything wrong when employees who knowingly and
intentionally commit
serious forms of misconduct, and then approach
this Court for urgent relief when they find themselves dismissed. In
such circumstances,
it would be cynical, as Ramaroane had alleged,
that as a result of the dismissal, she would suffer or continues to
suffer harm
because she is in her final year and will miss her final
examinations. Clearly on the facts, any harm she will suffer is as a
consequence
of her own intentional dishonest conduct. It is
self-inflicted harm.
4.6
As it was correctly submitted on behalf of the respondents, Ramaroane
failed
to set out cogent reasons why urgent relief was due to her.
She was at all material times fully aware of the consequences of her
dishonest conduct. She was caught cheating in an examination, was
aware that she would be dismissed, and that her studies would
be put
to a halt for two years.
4.7
Being fully aware of these consequences, she had on the day of the
examination,
left the venue, went outside, wrote answers or whatever
it was that was related to the examination on her right thigh with
the
sole purpose of cheating in the test, and went back into the
examination room to take the test. Like a minor child caught with her
hand in the cookie jar, she obviously could not justify her conduct
other than to apologise when the monumental mess she had created
for
herself hit her. It is not even necessary to even think of the
consequences of her conduct on the integrity of the examination
process and to the nursing profession as a whole. In the end, she was
the author of her own demise and I fail to appreciate which
Court
would under those circumstances, come to her aid on an urgent basis.
[5]
It is
further trite that Court would generally not come to a party’s
assistance on an urgent basis where it does not have
jurisdiction or
where there are adequate and/or alternative remedies available. It is
correct as also pointed out on behalf of
the respondents, that
jurisdiction is determined on the basis of the pleadings, and not on
the substantive merits of the case.
[2]
[6]
Ramoroane’s case as pleaded essentially boils down to
procedural
unfairness. As also correctly pointed out on behalf of the
respondents, despite reliance on the provisions of section 158(1)(h)
of the LRA, nowhere in her pleadings does she claim that the decision
to terminate her services by both Committees constituted
an
administrative action, nor was it pleaded that such a decision was
unlawful, arbitrary or irrational. The respondents further
correctly
pointed out obviously this Court lacks jurisdiction to determine the
application, and I agree.
[7]
Something
needs to be said about matters come to this Court on an urgent basis
under the provisions of section 158(1)(h) of the
LRA under the guise
of illegality, irrationality or unlawfulness, when in fact the cause
of action points to unfairness. It was
argued on behalf of the
applicants that on the authority of
Hendricks
v Overstrand Municipality & another
[3]
;
Merafong City Local Municipality c SAMWU & another
[4]
and
Solidarity
& others v SABC
[5]
,
this Court may on an urgent basis, grant relief where there is a
complaint in respect of any act performed by the State.
[8]
The general proposition that this Court, based on the above
authorities,
should as a matter of law and fact, intervene under the
provisions of section 158(1)(h) of the LRA in matters involving the
State
on the basis that it has jurisdiction, is clearly wrong and
self-serving. The Court may have jurisdiction under those provisions,
but it does not necessarily imply that it should assume jurisdiction
let alone grant relief in all instances.
[9]
It is apparent that the above authorities are often referred out of
context
and deliberately so. The Labour Appeal Court decision in
Hendricks
concerned itself with a review launched by the
Municipality as an employer, against a decision of its own
disciplinary process
in respect of an employee. In this regard, and
for the purposes of a distinction, it was explicitly stated that;
‘
The
underlying guiding rationale of the
ratio
decidendi
in
Gcaba
and
Chirwa
is that once a set of carefully-crafted rules and structures has been
created for the effective and speedy resolution of disputes
and
protection of rights in a particular area of law, it is preferable to
use that particular system. In other words, and in practical
terms,
remedies for unfair dismissal and unfair labour practices contained
in the LRA should be used by aggrieved employees rather
than seeking
review under PAJA. The
ratio
cannot
justifiably be extended to deny an employer a remedy against an
unreasonable, irrational or procedurally unfair determination
by a
presiding officer exercising delegated authority over discipline. The
remedies available to an aggrieved employee under the
unfair
dismissal and labour practice jurisdiction of the LRA are not
available to employers. Section 191(1)(a) of the LRA expressly
restricts these remedies to “the dismissed employee or the
employee alleging the unfair labour practice”. The only
remedy
available to the employer aggrieved by the disciplinary sanction
imposed by an independent presiding officer is the right
to seek
administrative law review; and section 158(1)(h) of the LRA empowers
the Labour Court to hear and determine the review.
To hold otherwise
is to deny the employer any remedy at all against an abuse of
authority by the presiding officer. Moreover, as
explained earlier,
in the present case Clause 7.7 of the code, properly interpreted,
does not amount to a contractual abandonment
of all remedies. On the
contrary, the proviso to the clause discloses an intention to retain
a right to seek review by subjecting
a final and binding
determination to “any other remedies permitted by law”.
The intention is one of excluding an appeal
by the employer while
allowing for a review. As mentioned, the right of appeal against a
presiding officer is available in terms
of clause 15 of the code only
to employees.
’
[6]
And,
‘
In
sum therefore, the Labour Court has the power under section 158(1)(h)
to review the decision taken by a presiding officer of
a disciplinary
hearing on i) the grounds listed in PAJA, provided the decision
constitutes administrative action; ii) in terms
of the common law in
relation to domestic or contractual disciplinary proceedings; or iii)
in accordance with the requirements
of the constitutional principle
of legality, such being grounds “permissible in law”. The
findings of the LAC and the
SCA in that regard in
Ntshangase
are not inconsistent with the findings of the Constitutional Court in
Gcaba
or
Chirwa
,
which are restricted to conclusions that unfair dismissals and unfair
labour practices will normally not constitute administrative
action
on account of adequate alternative remedies existing under the LRA.
Neither
Gcaba
nor
Chirwa
made any reference to
Ntshangase
,
or, as I have said, section 158(1)(h) of the LRA.
Chirwa
was decided before
Ntshangase
,
while
Gcaba
was handed down shortly after it. More recently, in
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal,
the Constitutional Court
cited
Ntshangase
with approval, indicating implicitly that it saw no inconsistency in
the approach followed in that case with its own earlier
pronouncements.
Concern
was expressed by Steenkamp J in
National
Commissioner of the SA Police and Another v Harri No and others
that the existence of a remedy allowing administrative review of
disciplinary tribunals may result in something of an anomaly in
that
the imposition of a lesser sanction can be viewed as administrative
action from the perspective of the employer while it will
be a labour
practice from the perspective of an aggrieved employee. That is true.
But, as the Constitutional Court pointed out
in
Gcaba,
it is
not unusual for the same facts to give rise to different causes of
action. An employer reviewing a sanction will normally
be seeking a
severer penalty, while the employee will be alleging an unfair labour
practice and seeking no sanction or a lesser
sanction. Should an
employee seek an administrative law review of a lesser sanction he or
she risks a finding, in accordance with
the line of thinking in
Gcaba
,
that the decision is not administrative action in terms of PAJA or
that judicial policy as expressed in the Constitution dictates
that
the common law be developed to confine the remedy of review in
section 158(1)(h) to legitimate challenges where there is no
other
available remedy. If a cause of action meets the definitional
requirements of an unfair labour practice or an unfair dismissal,
the
dictates of constitutional and judicial policy mandate that the
dispute be processed by the system established by the LRA for
their
resolution’
[7]
.
(Authorities omitted)
[10]
To the extent that reliance was place on the judgment in
Solidarity
v SABC,
again, that judgment is often referred to out of context,
and without due regard to the nature of the dispute and the basis
upon
which relief in that matter was sought. In that case, the
employees had pleaded their case as one of a breach of a specific
term
of their employment contract by the SABC, as the applicable
disciplinary code was expressly incorporated into their contracts of
employment. Their case was predicated on the provisions of section
77(3) of the Basic Conditions of Employment Act, in terms of
which
this Court has jurisdiction insofar as the issues in dispute related
to contracts of employment.
[11]
In this case, even if reliance is placed on Resolution 1 of 2003 to
the extent that it
was alleged that there were procedural flaws in
dismissing Ramaroane, reliance in any event is not placed on the
provisions of
section 77 of the BCEA in seeking urgent relief. It is
placed on a blanket assertion that this Court has jurisdiction under
the
provisions of section 158(1)(h) of the LRA, which in my view in
the light of the authorities referred to above, is clearly misplaced.
[12]
Reference
to a review in terms of section 158(1)(h) of the LRA on the grounds
of ‘
the
common law in relation to domestic or contractual disciplinary
proceedings’
in
Hendricks
[8]
,
does
not imply that because the procedures under Resolution 1 of 2003 are
applicable in this instance, that invariably implies that
this Court
has jurisdiction. The provisions of section 158(1)(h) of the LRA are
only invoked in circumstances where a party lacks
an alternative
remedy, and in this case, the provisions of the Resolution makes
reference to applicable dispute resolution procedures
in an event of
disputes surrounding its application and interpretation.
[13]
In a nutshell, even if the dismissal of a public servant ordinarily
involves the exercise
of public power, the Court will be hard-pressed
to find that any procedural irregularity that led to a dismissal, no
matter how
egregious the irregularity, would by necessity involve the
exercise of public power. To the extent that the guiding principle is
that reviews under section 158(1)(h) of the LRA should only be
entertained where there is no other remedy available under the
provisions of that Act, the Court should guard against contrived
arguments surrounding unlawfulness, illegality or irrationality
of
procedural decisions taken by the State as an employer, when the real
cause of action clearly points to nothing but procedural
unfairness,
which is an issue adequately catered for under the provisions of
section 191 of the LRA.
[14]
The
provisions of section 158(1)(h) of the LRA are not an open invitation
to parties to review each and every act performed by the
State as an
employer. At most, La Grange J said so in
SABC
when he
stated that the mere fact that the applicants were dismissed in
breach of the contract of employment ‘
might
not in and of itself warrant urgent relief’
[9]
[15]
To further reflect on the decision in
Hendricks
, the central
message is that there is
a set of
carefully-crafted rules and structures created for the effective and
speedy resolution of disputes and protection of rights
in a
particular area of law, and it is preferable to use that particular
system. Thus,
if a cause of action meets the definitional
requirements of an unfair labour practice or an unfair dismissal, the
dictates of constitutional
and judicial policy mandate that the
dispute be processed by the system established by the LRA for their
resolution, and not by
way of review under the provisions of section
158(1)(h) of the LRA.
[16]
In this case, irrespective of the nature and label attached to
Ramoroane’s case,
her cause of action is essentially based a
dismissal for pure misconduct, and any allegations of procedural
irregularities related
to that dismissal are matters that are equally
catered for under the provisions of section 191 of the LRA, and in
any event, which
on their own, do not give rise to the urgent
intervention of this Court.
[17]
To the extent that the applicants contended that the respondents were
in breach of the
provisions of provisions of Resolution 1 of 2003, an
alternative remedy is equally available by way of a referral of a
dispute
in terms of the provisions of section 24 of the LRA. Further
to the extent that they challenged the substantive fairness of the
dismissal, the provisions of section 191 of the LRA are available at
the relevant Bargaining Council.
[18]
As a further alternative, it was pointed out on behalf of the
respondents that Ramaroane
is at liberty to approach the South
African Nursing Council, which provides a rehabilitation and support
system during the two
year period. This is something Ramaroane in my
view needs to seriously consider, especially in the light of the
nature of her misconduct,
if she has any further designs of being an
honourable nursing professional.
[19]
In the end, the applicants have not laid a basis for this application
to be treated as
urgent, and ordinarily, this application ought to be
struck off the roll. However, striking the matter off the roll will
be of
little comfort to the already over-burdened roll of this Court,
and thus the application ought to be dismissed. This is so in that
the applicants have not satisfied the requirements of final relief
that they seek, which includes demonstrating a clear right,
the
absence of alternative remedies and irreparable harm. Her dismissal
effectively amounts to a two year suspension from her training
as a
nurse, and she is at liberty to resume her studies thereafter. Thus
any alleged harm (even self-inflicted) is not irreparable.
Costs
and conclusions:
[20]
In
conclusion, it needs to be stated that the facts and circumstances
leading to this urgent application are indeed extraordinary,
and are
symptomatic of the extreme abuse of this Court’s processes, and
in particular the urgent roll.
No
matter how much this Court has cautioned parties against bringing
meritless applications on an urgent roll and awarding punitive
costs
orders, the rot never stops.
[10]
This Court has reached a point beyond exasperation because costs
orders do not seem to deter parties from bringing matters on the
urgent roll which should ought never in the first place, have
passed a stage of the first draft of pleadings.
[21]
Based on Ramaroane’s own version of events, the attorneys of
record ought to have
taken stock and seriously reflected on whether
there was any point in approaching the Court on an urgent basis.
Clearly they failed
to do so. One can only assume that upon final
instructions and the final draft of the pleadings, the attorneys’
approach
was simply of ‘
let’s see what the Court will
say’.
This approach cannot be correct.
[22]
DENOSA equally ought to have deeply reflected on the facts of this
case after consultations
with its member and asked itself the same
questions. It is understandable that unions want to be seen to be
acting in the interests
of their members and fighting their cause.
That is commendable. However, there is no cause to fight for in
instances where an employee
has acted in the most reprehensible and
dishonest manner as evident from the common cause facts of this case.
What cause can possibly
be worth fighting for when an employee was
dismissed for dishonesty involving cheating in an examination? What
message is DENOSA
sending to its members and other employees by
vigorously challenging such a dismissal on an urgent basis? If the
message to DENOSA
members is unashamedly that ‘
we have
your back’
, and it is perfectly normal to cheat and to be
dishonest, and that they will be defended to the bitter end, then
clearly there
is something inherently wrong and palpably twisted with
that logic. In these circumstances, to the extent that DENOSA failed
to
see the ill-fated and ill-conceived nature of this application,
the requirements of law and fairness dictate that it be mulcted
with
punitive costs.
[23]
Accordingly, the following order is made;
Order:
1.
The Applicants’ urgent application is dismissed.
2. DENOSA
is ordered to pay the costs of the First and Second Respondents, on a
scale as between attorney
and own client.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants: D
Carls of Carls Attorneys
For
the First & Second Respondents: S Mahlangu,
instructed by the Office of the State Attorney
[1]
Act
66 of 1995 (as amended)
[2]
Gcaba v
Minister for Safety and Security
[2009] ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) at para
75
[3]
[2014]
12 BLLR 1170 (LAC)
[4]
[2016]
8 BLLR 758 (LAC)
[5]
2016
(6) SA 73 (LC)
[6]
At
para 27
[7]
At
para 29 - 30
[8]
At
para 29
[9]
At
para 67
[10]
See
Sihlali
& others v City of Tshwane Metropolitan Municipality &
another
(2017) 38 ILJ 1692 (LC) at para 29, where it was held;
‘
I
take this opportunity to warn practitioners approaching the urgent
court with such matters to ensure that such exceptional
circumstances as contemplated in the Booysen’s case do exist.
Otherwise they run a risk of punitive costs being made against
their
clients. It is good practice for practitioners practicing in this
Court to keep themselves abreast with the judgments of
this Court
particularly those arising from the urgent court. There is a
developing trend that points to the fact that the urgent
court is
being abused. Might I state, an urgent court is meant for urgent
matters. This Court should not be detained to use its
scarce,
valuable time entertaining self-created urgent matters.
Practitioners should exercise greater care when considering
approaching this Court on urgency in matters where substantial
redress is obtainable in due course.’