HOSPERSA and Another v MEC for Health Gauteng Provincial Government (J 542/2008) [2008] ZALC 45; [2008] 9 BLLR 861 (LC) ; (2008) 29 ILJ 2769 (LC) (22 April 2008)

HOSPERSA and Another v MEC for Health Gauteng Provincial Government (J 542/2008) [2008] ZALC 45; [2008] 9 BLLR 861 (LC) ; (2008) 29 ILJ 2769 (LC) (22 April 2008)

The court found that the respondent had not communicated a final decision to transfer Dr Kaplan and had failed to respond to her representations. Dr Kaplan consistently tendered her services at her original workplace and expressed willingness to work at other suitable locations. The respondent unilaterally withdrew her salary without affording her the opportunity to be heard, violating the audi alteram partem principle and section 32(3) of the Basic Conditions of Employment Act. The court held that the contract of employment remained enforceable and that the respondent's conduct was unlawful and unfair. The respondent was ordered to pay Dr Kaplan her full remuneration for the relevant...

Citation
[2008] ZALC 45
Parties
Applicant: Health and Other Service Personnel Trade Union of South Africa (HOSPERSA); Applicant: Dr A Kaplan; Respondent: MEC for Health, Gauteng Provincial Government
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
22 April 2008
Case Number
J542/2008
Procedural Posture
Urgent Application / Merits Hearing After Urgency Determined; Respondent's Answering Affidavit Excluded Due to Late Filing Without Condonation
Outcome
Application granted in favour of the applicants.
Judges
AC Basson
Legal Topics
Unilateral Salary Withdrawal, Audi Alteram Partem, Precautionary Transfer, Basic Conditions of Employment Act, Unfair Labour Practice
Labour Law Civil Procedure Unilateral Salary Withdrawal Audi Alteram Partem Precautionary Transfer Basic Conditions of Employment Act Unfair Labour Practice

Case Brief

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Parties

Health and Other Service Personnel Trade Union of South Africa (HOSPERSA)

Applicant

Dr A Kaplan

Applicant

MEC for Health, Gauteng Provincial Government

Respondent

Procedural Posture

Urgent Application / Merits Hearing After Urgency Determined; Respondent's Answering Affidavit Excluded Due to Late Filing Without Condonation

Legal Issues

  1. 1 Whether the respondent was entitled to unilaterally withdraw Dr Kaplan's salary without affording her an opportunity to be heard.
  2. 2 Whether a final decision to transfer Dr Kaplan was taken and communicated.
  3. 3 Whether Dr Kaplan was entitled to remuneration for the period in question despite not reporting to the transferred location.

Ratio Decidendi

The court found that the respondent had not communicated a final decision to transfer Dr Kaplan and had failed to respond to her representations. Dr Kaplan consistently tendered her services at her original workplace and expressed willingness to work at other suitable locations. The respondent unilaterally withdrew her salary without affording her the opportunity to be heard, violating the audi alteram partem principle and section 32(3) of the Basic Conditions of Employment Act. The court held that the contract of employment remained enforceable and that the respondent's conduct was unlawful and unfair. The respondent was ordered to pay Dr Kaplan her full remuneration for the relevant...

Court Disposition

Application granted in favour of the applicants.

Orders

  • The respondent is ordered to pay Dr A Kaplan her full remuneration for the months of February 2008 and March 2008 and for such further months as she may be employed.
  • The respondent is ordered to pay the applicants' costs, but only in respect of the proceedings held on 4 and 11 April 2008.