HOSPERSA and Another v Member of the Executive Council Responsible for Health: KZN and Others (D1170/11) [2015] ZALCD 33 (3 June 2015)

HOSPERSA and Another v Member of the Executive Council Responsible for Health: KZN and Others (D1170/11) [2015] ZALCD 33 (3 June 2015)

The Labour Court found that the Second Respondent had jurisdiction to determine the unfair labour practice dispute, as the Applicants pleaded demotion, which falls within the Council's powers. The Third Respondent's ruling was incorrect because the dispute did not require exclusive interpretation of regulations or policy, but rather assessment of fairness in the demotion. The withdrawal of the Second Applicant's appointment was procedurally and substantively unfair: it was done without consultation, without proper reasons, and without authority under any regulation, policy, or collective agreement. The Second Applicant was formally appointed, performed in the post, and was remunerated...

Citation
[2015] ZALCD 33
Parties
Applicant: HOSPERSA; Applicant: M. Pillay; Respondent: The Member of the Executive Council Responsible for Health: KZN; Respondent: Public Health and Social Development Sectoral Bargaining Council; Respondent: G. Gertenbach N.O.
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
3 June 2015
Case Number
D1170/11
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; Third Respondent's ruling set aside and substituted with an award in favour of the Applicants.
Judges
B M Whitcher
Legal Topics
Unfair Labour Practice, Demotion, Jurisdiction of Bargaining Council, Procedural Fairness, Public Service Regulations
Labour Law Administrative Law Unfair Labour Practice Demotion Jurisdiction of Bargaining Council Procedural Fairness Public Service Regulations

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Parties

HOSPERSA

Applicant

M. Pillay

Applicant

The Member of the Executive Council Responsible for Health: KZN

Respondent

Public Health and Social Development Sectoral Bargaining Council

Respondent

G. Gertenbach N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Second Respondent had jurisdiction to determine the unfair labour practice dispute referred by the Applicants.
  2. 2 Whether the withdrawal of the Second Applicant's appointment constituted an unfair labour practice.
  3. 3 Whether the First Respondent acted fairly and lawfully in demoting the Second Applicant.

Ratio Decidendi

The Labour Court found that the Second Respondent had jurisdiction to determine the unfair labour practice dispute, as the Applicants pleaded demotion, which falls within the Council's powers. The Third Respondent's ruling was incorrect because the dispute did not require exclusive interpretation of regulations or policy, but rather assessment of fairness in the demotion. The withdrawal of the Second Applicant's appointment was procedurally and substantively unfair: it was done without consultation, without proper reasons, and without authority under any regulation, policy, or collective agreement. The Second Applicant was formally appointed, performed in the post, and was remunerated...

Court Disposition

Application for review granted; Third Respondent's ruling set aside and substituted with an award in favour of the Applicants.

Orders

  • The ruling of the Third Respondent dated 19 November 2011 under case number PSHS 47/08-09 is reviewed and set aside.
  • It is substituted with an award that the Second Respondent had jurisdiction to determine the unfair labour practice dispute referred by the Applicants.