Department of Health: Gauteng Provincial Government v National Education Health and Allied Workers Union and Others (J2864/16) [2016] ZALCJHB 458 (5 December 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

CASE NO: J2864/16

In the matter between:

DEPARTMENT OF HEALTH: GAUTENG PROVINCIAL GOVERNMENT Applicant And NATIONAL EDUCATION HEALTH AND ALLIED WORKERS UNION First Respondent PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA Second Respondent THE PERSONS WHOSE NAMES APPEARS ON ANNEXURE “A1” OF THE NOTICE OF MOTIONS Heard: 05 December 2016 Delivered: 05 December 2016 Third to Further Respondent

TLHOTLHALEMAJE, J

[1] It is not common for this court to have to address ethical questions within the context of determining legal issues. The facts of this case, raises questions surrounding society’s obligation to create a balance between two competing constitutional rights. These are the employees’ right to strike as contemplated in section 23 of the Constitution, and ordinary citizens’ rights to human dignity, i.e., to be treated with dignity and respect as contemplated in section 10 of the Constitution. For the purposes of answering this question, the right to be treated with dignity and respect will be extended to deceased persons who are yet to be buried, and their bereaved families.

[2] The above questions arose out of an urgent application brought by the Applicant on the Saturday of 3 December 2016, to interdict the unprotected strike action embarked upon by the Third to Further Respondents (The Employees). An interim order was granted on that date with the return date set for 05 December 2016 in the light of the urgency of the matter. On the return date, and despite proper service on the Respondents, the application remained unopposed.

[3] Their Employees are members of the First and Second Respondents and are employed as Forensic Officers at various Forensic sections and stations throughout Gauteng Province, and more specifically in Pretoria, Garankuwa, Bronkhorstpruit, Carltonville, Heidelberg,

Springs, Germiston, Roodepoort, Johannesburg and Diepkloof. They fall under the Forensic Pathological Services, which legal parameters are contained within in a variety of legislative measures such as the Inquest Act, Criminal Procedure Act, National Health Act, Birth and Death Registration Act, Health Professionals Act and Human Tissues Act.

[4] Forensic pathology services are carried out by medical practitioners, forensic officers and other administration staff. Forensic officers are responsible for performing a variety of important functions including effective and efficient recovery, storage, processing,

physical collection and safekeeping of human remains. They are also responsible for the safekeeping of documents, evidence, information,

exhibits and personal property of deceased persons. They control report specimens during and after the forensic processes, completion

and administration of statements and official documents. They render effective and efficient autopsy processes in accordance with required standards, and generally assist forensic pathologist. Their functions are critical in the extreme in that they also give support to the laboratories and render management of forensic pathology laboratory that has a bearing on presentation of evidence in courts. Most importantly, the Applicant is to ensure that the cause of death is determined and correctly recorded on time at the Department of Home Affairs, to enable bereaved families to entomb the deceased.

[5] The Forensic officers’ tasks are therefore critical in ensuring that deceased persons are ready to be collected for burial on time as arranged between families and undertakers, and it does not require must thought to know that any lapses or failures to meet deadlines has dire consequences for the Applicant, the criminal justice system, and most importantly, bereaved family members.

[6] With effect from either 1 or 2 December 2016, the Employees at the above-mentioned stations embarked on a work to rule by partially

performing their duties. (The fact that the deponent to the Applicant’s founding affidavit is unsure of the date makes one

question the seriousness with which it viewed the matter). The definition of strike in section 213 of the Labour Relations Act

covers instances such as in casu[1], and the conduct of the Employees clearly constitute a strike as defined.

[7] Effectively, the Employees refused, despite it being their primary responsibilities, to perform dissection duties on corpses or to sew them up. Their demand is that the Applicant should remunerate them at a basic wage equal to that of Pathologists. Effectively, they had embarked on a work to rule, and the consequences of their failure to perform these essential tasks are dire, and as at the hearing of this application, there appeared to be no end to this impasse.

[8] The strike action came about without the requisite procedures in section 64 of the LRA having been complied with, and it is not even debatable that the strike is indeed unprotected. The legal issues are therefore clear and easy to dispose of. What is disconcerting however is how did we as a nation get to a point where we are required to question our very own moral fibre, as a consequence of what prima facie, appears to be an ordinary strike action?

[9] It is accepted that the right to strike is constitutionally entrenched. However, with this right comes responsibilities and

obligations, which are set out in section 64 of the LRA, for that strike to be deemed protected. The rights to human dignity, and to have one’s dignity respected and protected on the other hand as enshrined in the Constitution arise from our very existence as human beings, and more importantly from our concept of Ubuntu. No procedural requirements are necessary for the enforcements of such rights, and society as a whole, is automatically expected to respect those rights without much thought. It was Archbishop Desmond Tutu who once defined Ubuntu as:

‘… the essence of being human. It speaks of the fact that my humanity is caught up and is inextricably bound up in yours. I am human because I belong. It speaks about wholeness, it speaks about compassion’

[10] The strike action and its consequences in this case are nowhere near being ordinary, and everything about this strike points to how as a society, we have lost our sense of Ubuntu towards the suffering and pain of our fellow beings, especially those caught in a moment of grief and bereavement. It is accepted that ordinarily, when employees embark on some form of industrial action, the intention is to inflict some form of economic damage, and to make the employer yield to their demands. This is irrespective of how legitimate or unreasonable those demands may be. This has become part and parcel of our industrial relations system and we have become accustomed to it. Ordinary citizens caught in this power-play invariably become inconvenienced and helpless bystanders, with no role to play. However, when the consequences of such industrial action are felt more by unsuspecting ordinary citizens in their moment of grief, and when it affects their rights to human dignity and the rights of their loved ones who are deceased and yet to be buried to be treated with respect and dignity, hard ethical questions need to be asked, as this court and ordinary

citizens caught in this cross-fire can no longer just stand and watch.

[11] The events at the stations mentioned above, and from 1 December 2016 and into the weekend of 3 and 4 December 2016, must be viewed within the context of an expectation by bereaved families to find some closure, and to bid farewell to their deceased loved ones. These events leave one in a state of shock and numbness, at the level of how we as humans can be so callous and inhumane towards the plight and suffering of others, simply in pursuance of our own narrow-minded, if not narcissistic interests.

[12] The first level of shock is induced by the lackadaisical manner with which the Applicant approached this unfolding national shame. As of 1 December 2016, it was well-aware of the intended walk to rule, and was fully aware of its devastating consequences, more particularly for bereaved families. However, two full days passed, before it dawned upon the Applicant that it needed to approach the court for urgent intervention. As of 1 December 2016, the Applicant knew of the strike action via the ‘Informus’ communicated by the Second Respondent to its members, that the latter had planned a work to rule. Bereaved families were looking forward to some closure and had obviously made burial arrangements only to be told that they cannot be with their loved ones for the last time before burials, as they are not ready to be fetched. The Applicant in my view as a result of its belated reaction to this tragedy in the light of its prior knowledge of the intended strike action failed these families in the cruellest way imaginable.

[13] The second and most important factor however is in regards to the conduct of the Employees, especially in the light of the Second Respondent’s ‘Informus’ of 1 December 2016, which had appealed to its members to desist from taking any form of industrial action, and which was completely ignored. It is apparent that their actions were calculated and planned. They were aware that between Thursdays and Fridays, and more specifically over weekends, that is when bereaved families planned to bury their loved ones. The intended plan was obviously to come up with their contrived demand, when they knew that the Applicant would be at its most vulnerable position to negotiate. A half-hearted appeal for a return to normal work by the Applicant via a memorandum on 2 December 2016 did not yield any results, nor did any appeal from the Second Respondent to its members bear fruit. By design however, the conduct of the Employees had devastating consequences for bereaved families, who after preparations at great expense, could not bury their loved ones during the period of this ill-considered strike action.

[14] In the light of the above planned consequences, society should ask, at what point if any, can the rights of employees to strike, whether over legitimate demands or not, or whether the strike is protected or not, ever trump the rights of ordinary citizens to be treated with dignity and respect? More pertinently, at what point would these employees’ rights ever trump over those of deceased persons, who equally deserve to be treated with dignity and respect?

[15] The above questions are not to be understood or answered within the context of any legal framework. They are to be answered through our appreciation and understanding of the concept of Ubuntu, which forms the value base of our Constitution. It is not for this court to pass moral judgment on the conduct of the Employees, especially in view of this application not being opposed. However, where employees while pursuing narrow and self-serving interests, and in the process, consciously forget about the basic values of Ubuntu, and ignore their fellow being’s grief, sorrow and suffering, only one description is befitting; shameless.

[16] All the parties involved in this application are implored to take a minute of their valuable time to reflect on these chain events. This strike action was not about inflicting economic damage on the Applicant. It was not about causing a minor inconvenience to the Applicant or ordinary citizens. It was more intended to aggravate the pain, grief and suffering of families who had lost loved ones. The parties must put themselves in the shoes of these bereaved families who were unable to bury their loved ones over the last few days, and whose grief and sorrow has now been unnecessarily extended. These parties must make a concerted effort to come up with answers that have been posed in this judgment, which will hopefully prevent a repeat of this national tragedy. Our deceased and their families deserved better. Society has failed them, and as South Africans, we should all hang our heads in shame.

[17] It was in the light of the above considerations that the order as sought by the Applicant was granted in chambers on 03 December 2016. That order is herein confirmed and amplified as follows;

Order

i. The Applicant’s non-compliance with the Rules relating to service and time periods are condoned and the application is dealt as one of urgency in terms of the Rules of this Court;

ii. The strike action by the Third to Further Respondents which commenced on 01 December 2016 is declared to be an unprotected strike as contemplated in Section 68 of the Labour Relations Act 66 of 1995;

iii. The Third to Further Respondents are interdicted and restrained from any further participation in the said strike;

iv. Copies of this judgment are to be delivered at the offices of the National Minister of Health and the MEC for Health, Gauteng Province, for appropriate action to be taken against any of the parties involved in this application where it is deemed necessary.

v. There is no order as to costs

___________________

Tlhotlhalemaje J

Judge of the Labour Court, South Africa

APPEARANCES:

For the Applicant:

Adv. MH Mhambi

Instructed by:

Mdlulwa Nkuhlu Attorneys

For the Respondents:

No Appearance

[1] ‘“strike” means the partial or complete concerted refusal to work, or the retardation of obstruction of work, by persons who are of have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ―work in this definition includes overtime work, whether it is voluntary or compulsory’