Department of Health: Eastern Cape v Du Preez and Others (PR58/19) [2022] ZALCPE 18 (31 August 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case NO: PR58/19

In the matter between:

DEPARTMENT OF HEALTH: EASTERN CAPE Applicant

and

RONEL DU PREEZ

First Respondent

MCEBISI GCOTANA

Second Respondent

MOJALEFA MASELOA

Third Respondent

MICHAEL BYRNES

Fourth Respondent

VICTOR TOBO

Fifth Respondent

THULANE MADONSELA

Sixth Respondent

PUBLIC HEALTH AND SOCIAL DEVELOPMENT

SECTORAL BARGAINING COUNCIL

Seventh Respondent

COMMISSIONER CLARENCE RANDEL Eight Respondent

Heard: 12 May 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant's and Respondents' Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 15h30 on 31 August

Judgment

[1] The first to sixth respondents hereinafter referred to as the respondents are employed by the applicant as senior managers at Livingstone Hospital. On 31 October 2018 members of the National Education, Health and Allied Workers' Union hereinafter referred to as NEHAWU who were employed at Livingstone Hospital embarked on an unprotected strike alleging that the respondents, in their capacity as members of the hospital management, were committing acts of corruption. As days went by the strike became violent, the respondents were threatened, hospital services were interrupted and part of the hospital infrastructure was damaged. Police had to be called to quell the violence. On 5 November 2018 after holding a meeting with representatives of NEHAWU, the Superintendent General (the SG) held a meeting with the respondents. He expressed his intention of having the allegations of irregularities raised by NEHAWU against them investigation. He then gave the respondents three options to choose from while the allegation against them were being investigated. The respondents could either remain at work, be transferred to other institutions or be sent home. The charges referred to in the options would last for a period of 3 weeks.

[2] On 7 November 2018, the respondents were given 2 hours' notice to respond to notices of the applicant's intention to suspend them. They struck an agreement with the SG on the same day that they would be placed on special leave. The following day the SG renaged on the agreement by withdrawing their special leave approval and suspending them. The respondents then referred an unfair labour practice dispute to the seventh respondent hereinafter referred to as the bargaining council and challenged the fairness of their suspension. In an attempt to resolve the dispute the bargaining council arbitrated it. In an award issued by the eight respondent, hereinrafter referred to as the arbitrator, the suspension of the respondents was found unfair. The decision to suspend the respondents was overturned, the applicant was ordered to uplift the suspension with immediate effect and to pay each respondent compensation equivalent to his or her 6 months' salary. In addition the applicant was ordered to pay the third respondent outstanding remuneration. In this application the applicant seeks an order reviewing and setting the award aside. The application is opposed by the respondents.

[3] Section 145(1) of the Labour Relations Act[1] (the LRA) grants a party to a dispute the right to launch an application to this court and seek an order to have a defective arbitration award of a bargaining council reviewed and set aside. The defects which are referred to in section 145(1) are tabulated in section 145(2) of the LRA. The applicant's main grounds for review are that the arbitrator lacked jurisdiction to arbitrate the dispute before him because the real issue for determination was the review of the SG's decision withdrawing the special leave. In the applicant's view, the dispute is justiciable in this court and not at the bargaining council. He further submitted that the arbitrator’s decision is unreasonable. The respondents denied that the applicant established valid grounds for review. They further submitted that the award is correct, reasonable and based on the unrefuted evidence they tendered at arbitration.

[4] The applicant had to discharge the onus of proving the defect in the award. It was argued, correctly, on behalf of the respondents that the applicant sought to rely on broad and unsubstantiated grounds. In determining whether there is a defect in the award under review, the reviewing court has to consider the totality of the evidence tendered at arbitration. The applicant's main difficulty in establishing the existence of valid grounds to interfere with the impugned award is that no evidence was led on its behalf at arbitration. The arbitrator warned the parties very early in the arbitration proceedings of the need to lead evidence and cross examine witnesses and the consequences of a party's failure to do so. Notwithstanding the warning, the applicant elected not to call witnesses and missed its opportunity. The applicant must stand and fall by its decision. It is impermissible for the applicant to use review proceedings to present the case it should have presented at arbitration because the purpose of the review application is to determine the reasonableness of the impugned award based on the evidence which served before the arbitrator.

[5] The arbitrator complied with provisions of section 138(1) of the LRA in that he conducted the arbitration fairly. He dealt with the substantial merits of the dispute before him. He evaluated the evidence and reached a reasonable decision based on the evidence properly placed before him. The arbitrator gave clear and valid reasons for finding the respondent's suspension unfair. The applicant did not refute the respondents' evidence that the G unfairly and unilaterally withdrew the approval of their special leave. The arbitrator cannot be faulted for finding that the applicant acted unfairly in not giving the respondents the feed back it promised in their suspension letters. The applicant left unrefuted the respondents' evidence that in suspending them the SG acted in violation of the Disciplinary Code and Procedure for the Public Service read with the SMS Handbook.

[6] The applicant's attack on the relief the arbitrator granted is unjustified. No legal or factual basis was disclosed for the attack. Compensation is solatium based on the applicant's conduct of injuring the respondents' feelings. It has nothing to do with the actual financial loss the respondents did not suffer which the applicant sought to rely on. This principle is expressed in the following dictum in ARB Electrical Wholesalers (Pty) Ltd V Hibbert[2]:

[22] The compensation that an employee, who has been unfairly dismissed or subjected to unfair labour practice, may be awarded is not aimed at making good the patrimonial loss that s/he has suffered. The concept of loss or patrimonial loss may play a role to evince the impact of the wrong upon the employee and thus assists toward he determination of appropriate compensation, but compensation under the LRA is a statutory compensation and must not be confused with a claim for damages under the common law, or a claim for breach of contract or a claim in delict. Hence, there is no need for an employee to prove any loss when seeking compensatory relief under the LRA.'

[7] The decision on compensation is based on evidence which was led at arbitration. So is the finding on the outstanding remuneration due to the third respondent. Both findings are based on the evidence which was placed before the arbitrator. The award cannot be rendered unreasonable as a result of the applicant's election not to lead evidence to rebut the respondents' version at arbitration. The applicant failed to prove a defect in the impugned award. The application can, in the circumstances, not succeed.

[8] Fairness justifies a costs order against the applicant. The applicant acted unreasonably in bringing this application. The institution of these proceedings was an unreasonable attempt to avoid complying with an award based on the SG's decision to act in violation of the prescripts governing the respondents' suspension. The respondents cannot be out of pocket for opposing this application in defence of an arbitration in their favour.

[9] In the premises, the following order is made:

Order:

1. The application for review is dismissed with costs.

Z. Lallie

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate S. Nzuzo

Instructed by

The State Attorney

For the Respondents:

Advocate F. Le Roux

Instructed by

Kaplan Blumberg

[1] Act 66 of 1995, as amended

[2] (2015) 36 IU 2989 (LAC).