HOSPERSA and Another v MEC for Health, Gauteng Provincial Government (J542/2008) [2008] ZALCJHB 87 (22 April 2008)

HOSPERSA and Another v MEC for Health, Gauteng Provincial Government (J542/2008) [2008] ZALCJHB 87 (22 April 2008)

The court found that the respondent had not communicated a final decision to transfer the applicant, nor had it responded to her representations regarding the transfer and her health. The applicant had consistently tendered her services at her original workplace and expressed willingness to work at alternative locations within reasonable distance. The respondent's unilateral withdrawal of salary without affording the applicant a hearing or prior notice was held to be unlawful and in breach of both the Basic Conditions of Employment Act and the audi alteram partem principle. The court emphasized that the applicant's inability to perform at the transferred workplace was not due to her own...

Citation
[2008] ZALCJHB 87
Parties
Applicant: HOSPERSA; Applicant: Dr A Kaplan; Respondent: MEC for Health, Gauteng Provincial Government
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
22 April 2008
Case Number
J542/2008
Procedural Posture
Urgent Application / Final Determination on Merits After Opposed Urgent Application
Outcome
Application granted in favour of the applicant.
Judges
AC Basson
Legal Topics
Unilateral Withdrawal of Salary, Audi Alteram Partem, Precautionary Transfer, Basic Conditions of Employment Act, Unfair Labour Practice, Remuneration Entitlement
Labour Law Civil Procedure Unilateral Withdrawal of Salary Audi Alteram Partem Precautionary Transfer Basic Conditions of Employment Act Unfair Labour Practice Remuneration Entitlement

Case Brief

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Parties

HOSPERSA

Applicant

Dr A Kaplan

Applicant

MEC for Health, Gauteng Provincial Government

Respondent

Procedural Posture

Urgent Application / Final Determination on Merits After Opposed Urgent Application

Legal Issues

  1. 1 Whether the respondent was entitled to unilaterally withdraw the applicant's salary without affording her a hearing.
  2. 2 Whether a final decision to transfer the applicant was taken and communicated.
  3. 3 Whether the applicant remained entitled to remuneration despite not reporting to the transferred workplace.

Ratio Decidendi

The court found that the respondent had not communicated a final decision to transfer the applicant, nor had it responded to her representations regarding the transfer and her health. The applicant had consistently tendered her services at her original workplace and expressed willingness to work at alternative locations within reasonable distance. The respondent's unilateral withdrawal of salary without affording the applicant a hearing or prior notice was held to be unlawful and in breach of both the Basic Conditions of Employment Act and the audi alteram partem principle. The court emphasized that the applicant's inability to perform at the transferred workplace was not due to her own...

Court Disposition

Application granted in favour of the applicant.

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 applicant's costs, but only in respect of the proceedings held on 4 and 11 April 2008.