Basiewicz v Department of Health, Gauteng and Another (J3624/18) [2021] ZALCJHB 455 (6 December 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 3624/18

In the matter between:

GREGORZ STANISLAW BASIEWICZ Applicant

and

DEPARTMENT OF HEALTH, GAUTENG First

Respondent

MEC: GAUTENG DEPARTMENT OF HEALTH Second

Respondent

Determined: On papers

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 06 December 2021

JUDGMENT

MAHOSI J

Introduction

[1] The applicant brought an application in terms of Rule 7 of the Rules for the Conduct of Proceedings in the Labour Court read with section 77(3) of the Basic Condition of Employment Act (BCEA) seeking the following order:

‘1. That the first respondent is declared to be in breach of the employment contract and the terms of employment that exists between the applicant and the first respondent, by failing to pay remuneration due to the applicant by the first respondent.

2. That the first respondent be declared to be in breach of the BCEA.

3. That the first respondent be ordered to pay an amount of R2 229 379.95 to the applicant.

4. That the first respondent pays mora interest on this amount, at the legally prescribed rate, calculated from date of this application to date of payment.

5. That the respondents be ordered to pay the costs of this application.

6. That the above honourable Court grant the applicant such further and or additional relief as above Honourable Court may deem necessary.’

[2] The first and second respondents (the respondents) opposed this application.

Background

[3] The dispute between the parties is tortuous and involves a lot of factual dispute surrounding the applicant’s suspension, which culminated in his dismissal from employment. Resultantly, this matter is but one of the three applications before this Court.

[4] It is common cause that the applicant was employed by the first respondent as the Principal Specialist and Head of Department of Urology at the Chris Hani Bargawanath Academic Hospital (Chris Hani Baragwanath). On 15 March 2015, the applicant was issued with a notice of precautionary suspension in terms of clause 7.2 of the Disciplinary Code and Procedure for the Public Service as contained in Resolution 1 of 2003, which suspension was effective from 25 March 2015 with full pay and subject to the following conditions:

‘1. You shall hand-over all departmental property, office keys, access card, etc.

2. You are prohibited from entering or being in the premises of the Hospital, unless you are brought as the patient. However, should you require permission contact the writer.

3. Notwithstanding the above, you remain the employee of the Department and therefore are expected to make yourself available within an hour when needed.

4. You shall render the necessary assistance if so required during the investigation.

5. You will leave your contact details in order to be contacted when necessary.’[1]

[5] It is further undisputed that the disciplinary proceedings contemplated by the aforementioned notice of suspension was initiated on 20 May 2015, when the applicant was issued with a charge sheet. The applicant was subsequently issued with an amended charge sheet on 19 June 2015, but the disciplinary hearings did not proceed at the time.

[6] On 17 July 2015, the applicant was issued with a notice in terms of which his suspension was uplifted. The notice read:

‘Sir.

[1] Please be advised that your suspension has been lifted with immediate effect. Further, you will be precautionary transferred to Steve Biko Academic Hospital.

[2] You will report to the office of the CEO, Dr E Kenoshi on Monday, 20 July 2015, at your normal working time i.e. 8:00, who will assign you duties.

[3] Should we learn that you have been performing work related to your profession during the suspension, we will have no option but charge you with further gross misconduct.’

[7] On 20 July 2015, The applicant’s attorneys addressed a letter to the first respondent challenging his purported precautionary transfer.The letter stated, inter alia, as folllows:

‘Dear Sirs,

We refer to the above and address this letter to you on behalf of our client, Dr G Basiewicz.

Whilts we appreciate that it is your prerogative to suspend our client or not, and to suspend his suspension (which our client welcomes), you cannot, with respect, place our client on precautionary transfer. Such conduct is unlawful, and is in breach of our client’s contract of employment.

Our client is appointed as Head of Urology at Chris Hani Baragwanath Academic Hospital. He will continue to tender his services there, and will report for duty there.

Insofar as your letter of 20 July 2015 uplifts our client’ suspension, it is accepted and our client will report for duty and tender his services. Our client will report for work at Chris Hani Baragwanath Academic Hospital.’

[8] The applicant avers that he tendered his services at Baragwanath Academic Hospital not at Steve Biko Academic Hospital, which averement is disputed by the respondents. Of importance is that the respondents stopped the payment of the applicant’s salary.

[9] On 17 August 2015, the applicant’s attorneys addressed another letter to the first respondent challenging its decision to stop the applicant’s salary and demanding its reinstatement. The first respondent did not respond to the letter and the applicant’s salary remained unpaid.

[10] On 28 August 2015, the first respondent addressed an email to the applicant, inter alia, accusing him of defying the instruction to report for duty at Steve Biko Academic Hospital. The email read:

‘Dear Dr Basiewicz

It is regrettable to note that you have taken a decision to defy the instruction that you have to report to Steve Biko Academic Hospital until all matters relating to your disciplinary process are finalised. We learnt that you are back in the premises of Chris Hani Baragwanath Hospital, where you were told that you should not enter.

Your action is tantamount to trespassing and the hospital reserves the right to ask the South African police service to arrest and/or prohibit your entry.’

[11] The applicant’s attorneys responded to the first respondent’s email, recording the following:

‘We record that you have now instructed, in writing, that our client is not to report for work at Baragwanath Hospital, which he did. You in fact threatened to have [him] arrested for trespassing if she does. Therefore, the fact that our client is not reporting for duty is occasioned solely as a result of your unlawful conduct.

Once again, you cannot instruct our clients to report for work at Steve Biko Hospital. This is direct violation of his condition of employment. Instruction is unlawful. In so far as you seek to unilaterally change our clients condition of employment by way of instruction, it is unlawful.

Finally, and [to] make matters worse, you have stopped our client's salary on the basis of your own unlawful conduct.

It has now become clear that no matter what we write to you, you simply remain steadfast in pursuing your own lawful course of action.

We shall therefore referred a unilateral change to employment conditions dispute, and unfair labour practice disputes, to the bargaining Council. If you do not comply, we shall bring an application to the Labour Court.

We call on you to stop your unlawful conduct. This letter serves as notice that we shall seek punitive relief, including punitive cost orders against you should [we] be compelled to litigate.’

[12] The first respondent did not respond to the letter from the applicant’s attorneys. As a result, the applicant approached this Court urgently to seek an order, inter alia, that his transfer from Chris Hani Baragwanath Hospital to Steve Biko Hospital constituted a unilateral change to his terms and conditions of employment and that the first respondent ought to make payment of his unpaid salaries. The matter was set down for hearing on 15 September 2015.

[13] The applicant avers that to an extent that the respondents admitted in their answering affidavit in the aforementioned urgent application that the applicant’s August salary was withheld on 14 August 2015 and that the respondents’ counsel gave an undertaking that it would be paid, there was no need to argue the unpaid salary and as a result, the parties only argued the issue concerning the applicant’s transfer pending disciplinary hearing.

[14] Having considered the parties’ submissions, Brassey AJ issued an order in the following terms:

‘IT IS ORDERED THAT:

1. Pending the outcome of the applicant's disciplinary enquiry, his transfer from the position as the Head of Department and Principal Specialist: Urology, at Chris Barnard Academic Hospital in Johannesburg to Steve Biko Academic Hospital in Pretoria is of no force and effect.

2. There is no order as to costs.’

[15] On 15 November 2015, the applicant's attorneys addressed a letter to the first respondent in terms of which they demanded that the first respondent honour its undertaking given in court by paying the outstanding August 2015 salary together with the next applicant’s salary payment. The first respondent did not respond to this letter and did not pay any outstanding salary.

[16] In the interim, the disciplinary proceedings against the applicant continued over several days in August and September 2015 and ultimately, the applicant was found guilty of all charges except three charges. The continuation of the disciplinary hearing was set down for 7 December 2015, to enable parties to address the chairperson in mitigation and aggravation prior to him handing down the sanction.

[17] On 12 November 2015, the applicant filed an application for leave from employment commencing from 23 November to 18 December 2015. However, on 23 November 2015, the leave application was refused because of the pending disciplinary proceedings.

[18] On 11 December 2015, the first respondent sent to the applicant by email, a notice of termination in terms of section 17(3) of the PSA indicating that he has abscondend from employment from November 2015 and that for that reason his employment had been automatically terminated. Pursuant to this notice, the first respondent stopped the applicant’s salary with immediate effect.

[19] On 14 December 2015, the applicant received the written findings from the chairperson of the disciplinary hearing which recommeded a sanction of dismissal.

[20] The applicant referred an unfair dismissal dispute to the Public Health and Social Development Sectoral Bargaining Council (PHSDSBC) under case number PSHS 955-15/16. On 7 April 2016, the matter was set down for point in limine which was raised by the first respondent claiming that the PHSDSBC lacked jurisdiction to arbitrate the dispute as the applicant was not dismissed, but his employment was terminated automatically in terms of section 17(3) of the PSA.

[21] On 12 May 2016, the arbitrator issued a ruling in terms of which she upheld the point in limine. On 14 June 2016, the applicant launched an application application in this Court to review and set aside the aforementioned jurisdictional ruling.

[22] In the meantime, on 6 October 2016, the first respondent sent a letter to the applicant withdrawing his termination in terms of section 17(3) of the PSA and advising him that his services remain terminated based on the recommendation of the chairperson dated 14 December 2015. The letter reads as follows:

‘Dear Mr Basiewicz

1. Your alleged unfair dismissal dispute bears reference.

2. You must have been advised by your attorneys of record that the Gauteng Department of Health (“the Department”) has since consented to the review and setting aside of the jurisdiction ruling, and that the matter be referred back to the Public Health and Social Development Sectoral Bargaining Council for a hearing de novo.

3. Kindly note that the Department hereby withdraws this section 17(3) of public service act 103 of 1994 (“PSA”) termination letter with immediate effect. However, your services would remain terminated in accordance with the outcome on sanction issued and delivered by the chairperson of the disciplinary hearing on 14 December 2015. The Department will further attend to payment of any amount that may be due to you given the change in terms of the date of dismissal.’

[23] The review application of the jurisdictional ruling was heard by Tlhotlhalemaje J on 8 November 2016 during which it became apparent that there was no legitimate basis upon which it could be claimed that the applicant’s employment was terminated on 11 December 2015 in terms of section 17(3) of the PSA. As a result, the parties agreed to a consent order setting aside the jurisdictional ruling and remitting the matter back to the PHSDSBC for arbitration de novo. In particular, the consent order read as follows:

1. The jurisdictional ruling issued by the first respondent, being the arbitrator Q Gungubele of the second respondent, under case number PSH 955-15/16, dated 6 May 2016, in the proceedings between the applicant and the third respondent is reviewed and set aside;

2. The matter is remitted back to the second respondent for determination de novo before an arbitrator other than the first respondent.

3. That the respondent is to pay the applicant's costs on party and party scale, but only until 30 September 2016.’

[24] It is the applicant’s case that the first respondent has failed to pay his outstanding salary, despite its clear terms of the notice of termination of employment dated 6 October 2016. Accordingly, he launched this application for payment of his salary for August 2015 and for his salary from 11 December 2015, being the period when his salary was stopped until 6 October 2016, when he was finally dismissed. The applicant further avers that he is entitled to the payment of his accrued leave (capped leave) of 141 days as at the time of his termination of employment, which was never paid out to him upon termination of employment.

Submissions

[25] The basis for the applicant’s claim is that to an extent that the first respondent withdrew the termination notice of 11 December 2015, he was not dismissed and remained the employee until 06 October 2016 when the employer accepted and implemented the recommendation of the chairperson. For that reason, the applican avers that, in failing to remunerate his salary for August 2015 and the period between 11 December 2015 and 6 October 2016, the first respondent acted contrary to the BCEA and breached his contract of employment

[26] In opposing, the respondents submitted that to an extent that the applicant’s services had been terminated by operation of the law on the provisions of Section 17(3) of the PSA, they could not implement the outcome of the disciplinary process. Further that they did not, at any stage, abandon the right to implement the outcomes of the disciplinary enquiry as they had two separate and independent processes both of which resulted in the dismissal of the applicant.

[27] The respondents further submitted that the applicant’s salary was stopped after he stopped presenting himself for work at Chris Hani Baragwanath Academic Hospital after this Court had pronounced that his transfer was of force and effect. It is the respondents further submission that the outcome of the chairperson was issued to the applicant precisely because they had accepted it. Therefore, the respondents deny that the applicant was only dismissed on 6 October 2016.

[28] According to the respondents, the applicant was dismissed on 14 December 2015 when he was issued with the outcome of the disciplinary enquiry. For that reason, it is the respondent’s submission that from 14 December 2015 to the finalisation of the dismissal dispute at the bargaining council, the applicant is not entitled to any payment. Thus, the respondents undertook to make payment of the applicant’s August 2015 salary and for the salary for the period between 2 November 2015 and 14 December 2015 as soon as administrative processes are finalised.

[29] The respondents dispute that the applicant is entitled to a payment of accrued leave and referred the Court to Clause 7.3(a) of the PSCBC Resolution 7 of 2000 which provides that the employer shall pay such accrued leave on death, retirement or medical boarding, as well as clause 4.1 of the PSCBC Resolution 3 of 1999 which provides that the employer shall pay a leave gratuity to an employee who dies or discharged for a reason other than misconduct, abscondment, retirement to avoid a discharge for misconduct or resignation, unless the employer may have refused an employee vacation leave only for pressing operational reasons.

Analysis

[30] The applicant’s August 2015 salary and the salary for the period between 2 November 2015 and 14 December 2015 is not in dispute. In fact, the respondents undertook to make payment thereof. What is in dispute, is whether the applicant is entitled to his salary from period between 11 December 2015 and 6 October 2016.

[31] It is apparent from the parties’ submissions that, although the applicant relies on the contract of employment, the basis for his termination of employment and the date on which he was dismissed are central to the determination of the declaratory orders sought. To an extent that these are issues that ought to be decided at the arbitration, which has already been referred to the baragaining council for hearing de novo, this Court can only make its determination once the bargaining council has made its pronouncement. Thus this matter stands to be struck off the roll as it was prematurely referred to this Court.

Costs

[32] With regard to costs, I am of the view that the requirements of law and fairness dictate that there should be no order as to costs.

[33] Accordingly, the following order is made:

Order

1. The matter is struck off the roll.

2. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Representatives

For the applicant: Mr S. Snyman of Snyman Attorneys

For the respondents: Ms M. Thamaga of the State Attorney, Johannesburg

[1] Index to pleadings, page 20.