Dayimani v Department of Health KZN and Others (D1004/2014) [2021] ZALCD 8 (30 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT DURBAN

Not Reportable

CASE NO D1004/2014

In the matter between

T N DAYIMANI

Applicant

And

DEPARTMENT OF HEALTH, KZN First Respondent

PHSDSBC

Second Respondent

AS DORASAMY N.O.

Third Respondent

Heard: 25 February 2021

Delivered: 30 June 2021

Summary: Review - interpretation and application of provisions of clause 3.2.5.3(i) (b) of PHSDSBC resolution 3 of 2007 - Nurses OSD resolution - applicant not in possession of a post basic clinical nursing qualifications as listed in Government Notice R212 but was permanently appointed in a speciality unit post –she performed such duties.

JUDGMENT

CELE J

Introduction

[1] This is an application in terms of section 158 (1) (g) of the Labour Relations Act[1], to review, set aside and substitute the arbitration award dated 12 September 2014 issued by Commissioner AS Dorasamy. The Commissioner found that the first respondent correctly interpreted and applied the provisions of clause 3.2.5.3(i) (b) of PHSDSBC resolution 3 of 2007 (Nurses OSD resolution) and that Northdale Hospital where the Applicant worked did not have a speciality ward. The First Respondent, hereafter referred to as the Department, opposed this application.

Factual Overview

[2] The facts of this matter are largely common cause. In January 2013, the Department issued HRM circular No. 31 of 2013 wherein it requested all its institutions to identify professional nurses who were working in speciality departments on or before 30 June 2007 but were rotated out of those speciality departments from 01 July 2007 to 28 September 2007 before the DPSA circular for implementation of the Occupational Special Dispensation, OSD) for nurses back in 2007, was issued. The purpose of the circular was to benefit those professional nurses who at the time OSD became effective, were working in speciality areas before 30 June 2007 but were rotated out those speciality areas after 01 July 2007 before those speciality areas were classified under speciality nursing stream.

[3] Northdale Hospital, in Pietermaritzburg where the Applicant was working, identified and translated for the OSD once off provision some nurses who were working with her in Q-ward, a gynaecological ward falling within maternity department. The Applicant was left out and was not paid that allowance. The Nursing Management at Northdale Hospital told her that she did not qualify because at the time she worked in Q-ward she did not have a midwifery qualification, which was a post basic clinical qualification. Midwifery Qualification was said to be a requirement in terms of the OSD circular pertaining to the maternity department.

[4] The Applicant lodged an internal grievance procedure. She was not successful. She then referred a dispute for interpretation and application of a collective agreement, in particular clause 3.2.5.3(i) (b) of PHSDSBC resolution 3 of 2007. Conciliation failed to resolve the dispute and she referred it to arbitration. The dispute was arbitrated by the Third Respondent, the Commissioner, who found that the First Respondent had correctly interpreted and applied the provisions of clause 3.2.5.3 (i) (b) of PHSDSBC of resolution 3 of 2007 and further found that Q-ward was not a speciality ward, as Northdale Hospital was a District Hospital which did not have speciality wards or arears.

[5] On 07 August 2009 the Department of Health nationally with all unions under Public Health and Social Development Sectoral Bargaining Council entered in arbitration settlement agreement under PSHS 492-08/09 whereby clause 3(a) of the said agreement provided as follows:

‘The basis of translation of nurses for osd shall be the duties that a nurse was performing as of 30 June 2007’.

[6] In his impugned arbitration award the Commissioner held, inter alia, that:

“7.15 Arising from the above the Applicant was translated under the general nursing stream. She now wants to benefit from the translation principle of the once –off provision in terms of clause 3.2.5.3 (1) (b).

7.16 The Respondent being the employer has the prerogative in respect of the application of the resolution. This does not mean that its decision cannot be challenged when it refuses to grant an employee such a benefit.

7.17 In this case the respondent contends that the applicant does not qualify for the benefit as firstly on the basis that the ward in which she was working was not a specialist ward and that the Northdale hospital is a District Hospital meaning it does not necessarily provides designated or dedicated Speciality Units unlike Tertiary and Regional Hospitals like Edendale and Greys Hospitals have Maternity Ward, Paediatric Ward and Operating Theatre which are specialty units.

Further if the applicant was translated under the general nursing stream then it begs the question how does she claim to satisfy the condition that to be translated one has to perform the functions in a speciality ward that sees to specific patients.

7.18. In any event the employer would have considered that applicant’s claim in respect of the applicable provision and had responded to her in the negative. As previously indicated the decision of the employer is subject to challenge.

7.19. In this case I believe that the employer had applied the provisions of the resolution correctly.

7.20 Costs

…………

7.21. I find that the Council has jurisdiction to entertain this dispute: As a consequence of the above I determine that the applicant has failed to discharge the onus that the employer had failed or incorrectly interpreted and applied resolution 3 of 2007 more specifically clause 3.2.5.3(i) (b) and further determine that the applicant was not eligible the relief sought.” (Sic)

[7] It is these findings that form the subject of the present review proceedings. The court is required to determine whether the Commissioner committed a reviewable irregularity which makes the award susceptible for review.

Grounds for review

[8] In summary, the Applicant said that the award was not a perfect model of a reasonable award. The Commissioner failed dismally to apply his mind to the issues material to the dispute and he therefore misconceive the inquiry and misdirected himself in many respects which led him to render an award that was not supported by facts, hence the award was unreasonable. She said that:

(i) The findings were manifestly irrational and contained no reasons;

(ii) The findings were not supported by evidence or facts; and

(iii) There was a misconception and misdirection of inquiry and failure to deal with material issues raised for determination.

[9] The opposition to this application by the Department is premised on the submissions that the interpretation of the OSD policy by the Commissioner was correct and that the award was reasonable in that:

a) Q ward was not a dedicated hybrid speciality ward;

b) Q ward was a hybrid general ward;

c) The Applicant left the Q ward on 31 May 2007, month before the cut-off date of 1 July 2007;

d) At the requisite cut-off date she was working at R-ward;

e) The circular required that the Applicant should still be or continue working in the hybrid speciality ward, which in this instance Q ward was not;

f) The Applicant was not qualified as a specialist as she only attended the basic midwifery course on 1 July 2008 until 30 June 2009.

Evaluation

[10] The relevant HRM circular No. 31 of 2013 read:

“ ‘Re: Completion of template

1 Institutions are requested to complete the attached template in respect of the following in-service employees.

1.1 Professional Nurses who were working in areas classified in the Speciality Nursing Stream (Operating Theatre, Intensive Care, Oncology, Paediatrics, Orthopaedics and Ophthalmology) as at 30/06/2007 who were rotated from 01/07/2007 up to 27/09/2007 which is the window period before the directive was issued by DPSA on 28/09/2007 for the implementation of OSD for Nurses. Duty list/ roster should be utilised for this exercise to identify Professional Nurses affected who were not considered for a once off translation in the Nursing Speciality Stream.

1.2 Professional Nurses who were working in Emergency and Trauma Unit, Psychiatry Institutions (dedicated Psychiatry Clinics and Psychiatry Wards) and Maternity Wards as at 30/06/2007 before these areas were classified in the Speciality Nursing Stream. Emergency and Trauma unit and Psychiatry Institutions were classified in the Speciality Nursing Stream in 2010 and Maternity Ward was classified in the Speciality Nursing Stream in 2011. Duty list/roster should be utilised for the exercise to identify Professional Nurses affected who were not considered for a once off translation in the Speciality Nursing Stream.”

[11] Clause 3.2.5.3 (1) (b) reads as follows:

3.2.5.3 Translation of Professional Nurses (Registered Nurse) to speciality posts:

(i) A Professional Nurse (Registered Nurse) who occupies a post in a nursing speciality and who –

(a) Is in position of a post basic clinical nursing qualifications listed in Government Notice R212, as amended, shall translate to the appropriate speciality post, and

(b) is not in possession of a post basic clinical nursing qualifications listed in Government Notice R212, as amended, but who has been permanently appointed in a post in a speciality unit and has been performing these duties of speciality post satisfactorily on 30/06/2007, shall be transferred as a once off provision to the first salary scale attached to production level.”

[12] A simple reading of clause 3.2.5.3 (i) of the resolution indicates without doubt that the resolution makes provision for two categories of Professional Nurses who should be translated under speciality nursing posts. Those that have a post basic clinical nursing qualification[2] and those that do not have it.[3] The Applicant confessed to having no post basic clinical nursing qualification and accordingly is not covered under (a). It remained

throughout the arbitration proceedings that the Applicant was a Professional Nurse.

[13] The enquiry had then to turn on the nature of the ward she was posted at during the material times. To succeed she must have been permanently appointed in a post in a speciality unit and had been performing those duties of speciality post satisfactorily as on 30/06/2007. This enquiry is factual. On 31/05/2007 the Applicant was working in Q-Ward. She then went on her annual leave as from 3/06/2007 and while still on leave, on 18/06/2007 she applied to be placed on permanent night duty. A favourable response was issued by the Department on 4/7/2007 while she was still in Ward-Q. In acceding to her application to work on permanent night duty, she was then allocated to Ward-R in the middle of July 2007. Consequently, she was in Ward-Q as on 30/06/2007. She was on a permanent post.

[14] The final enquiry turns on the nature of Ward-Q and hence the type of duties performed by the Applicant. The Department contended that the Applicant did not qualify for the benefit as firstly, on the basis that the ward in which she was working was not a specialist ward and secondly that the Northdale hospital was a District Hospital meaning it does not necessarily provides designated or dedicated Speciality Units. The Commissioner accepted that position as correct. As properly contended by the Applicant no reasons were proffered by the Commissioner why he accepted the version of the Department.

[15] Q-ward was a gynaecological ward or maternity ward, which admitted or nursed multiple specialities such as gynaecological patients, orthopaedic patients and surgical trauma patients[4]. Gynaecology, orthopaedic and trauma were recognised nursing specialities. In addition and as a clear acceptance of this description of Ward-Q, the Department paid nurses OSD translation for speciality nursing to all other Professional nurses who were working with the Applicant at Q-ward. I therefore conclude that the Applicant had been performing the duties of speciality post on 30/06/2007. The question of doing so satisfactorily did not arise and therefore I accept that she performed them satisfactorily. In my judgment, the Commissioner ought to have found that the Applicant ought to have been transferred as a once off provision, to the first salary scale attached to production level.

[16] With its three grounds of review, the Applicant has successfully demonstrated that the Commissioner failed to conduct a proper enquiry, failed to evaluate the evidential material brought to him by the parties and he reached a conclusion which a reasonable decision maker could not reach, in the circumstances of this matter. Further, to the extent that the Commissioner interpreted and applied the provisions of clause 3.2.5.3(i) (b) of PHSDSBC resolution 3 of 2007 (Nurses OSD resolution), such interpretation was wrong. This award cannot stand. It has to be reviewed and substituted as asked for by the Applicant.

[17] The following order shall issue:

1. The arbitration award in this matter is reviewed and set aside.

2. The Department is ordered to transfer the Applicant as a once off provision, to the first salary scale attached to production level, in terms of the provisions of clause 3.2.5.3(i) (b) of PHSDSBC resolution 3 of 2007 (Nurses OSD resolution). The Department is consequently ordered to pay the Applicant a sum of R450 906.00 within 30 court days of this order, with interest at the applicable rate.

3. No costs order is made.

_________

H Cele

Judge of the Labour Court of South Africa.

[1] Act Number 66 of 1995, the LRA.

[2] Grouped under (a).

[3] Grouped under (b).

[4] This was admitted in the pleadings by the Department in its paragraph 7 of the answering affidavit.