South African Medical Association and Another v Public Health Social Development and Others (JR2854/12) [2016] ZALCJHB 242 (8 July 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR2854/12

SOUTH AFRICAN MEDICAL ASSOCIATION

First Applicant

DR LAMB

Second Applicant

and

PUBLIC HEALTH SOCIAL DEVELOPMENT

SECTORAL BARGAINING COUNCIL

First Respondent

COMMISSIONER LUNGILE MATSHAKA

Second Respondent

DEPARTMENT OF HEALTH GAUTENG

Third Respondent

UNIVERSITY OF PRETORIA

Fourth Respondent

Heard: 14 December 2015

Delivered: 8 July 2016

Summary: Review application in which Second Applicant challenged the arbitrator’s ruling that he had failed to establish his dismissal in circumstances where the dismissal was common cause between the parties. Second Applicant effectively summarily dismissed without any hearing having taken place prior to his dismissal. Second Applicant having resigned from commuted overtime but not from his employment with the Third and Fourth Respondents. Second Applicant’s dismissal was also substantively unfair as his contract of employment did not oblige him to perform commuted overtime. Moreover, the Third Respondent’s circulars regarding commuted overtime clearly make such overtime voluntary. It was also common cause between the parties that the Second Applicant’s training period could have been extended should he have elected not to work commuted overtime. Second Applicant’s dismissal was accordingly both procedurally and substantively unfair.

JACKSON, AJ

Introduction

[1] This is an application to review an arbitration award of the Second Respondent in which he found that the Second Applicant had failed to establish his dismissal. The Fourth Respondent, the University of Pretoria, was joined to the proceedings by virtue of an order of this Court on 12 August 2014 as the Second Applicant’s appointment was a joint appointment between Third and Fourth Respondents.

[2] The facts of the dispute between the Second Applicant and Third and Fourth Respondents relate to Second Applicant’s decision to resign from what is termed commuted overtime or “COT” and what impact that had on his employment with the Third and Fourth Respondents.

[3] It appears to be common cause that Second Applicant’s withdrawal from COT was not accompanied by any resignation from his employment with Third and Fourth Respondents and indeed Second Applicant appears to have made it clear to Professor Rantloane (the Head of the Anaesthesiology Department in the School of Medicine at the University Pretoria and Chief Specialist at Steve Biko Academic Hospital) that he had no intention of resigning from his employment.

[4] Nonetheless, on 27 July 2010, Second Applicant was issued with a letter of termination ostensibly on the basis that the Second Applicant refused to perform COT.

[5] Second Applicant challenged both the substantive and procedural fairness of his dismissal at the arbitration hearing. There are two condonation applications before me. The first (which is unopposed) is by the Second Applicant for the late filing of his review application. The second application (which is opposed) is by the Third Respondent for the late filing of its answering affidavit.

The Applicants’ condonation application

[6] The principles of condonation were established in Melane v Santam Insurance Company Limited[1] where the Court held that:

‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily these facts are inter-related; they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the Respondent’s interests in finality must not be overlooked.’

[7] The Applicants’ review application was filed five days late which, in my view, is a minimal delay.

[8] The reason advanced for this delay was a miscalculation by Applicants’ attorneys of the dies in which to file the review application.

[9] For the reasons that follow later on in this judgment, I am of the view that the Applicants have very good prospects of success.

[10] The Applicants’ condonation application is moreover unopposed.

[11] Taking the above considerations into account, I am of the view that the Applicants have shown good cause in their condonation application.

The Third Respondent’s condonation application

[12] The Third Respondent’s answering affidavit was, by its own admission, due on 27 June 2013.

[13] According to the Registrar’s date stamp, it was filed on 3 December 2013, which is more than five months late.

[14] This is an excessive delay.

[15] The reasons advanced by the Third Respondent for this delay revolve around administrative delays in appointing Counsel, miscommunication between Counsel and his instructing attorneys and losing the draft answering affidavit.

[16] These reasons, as weak as they are, certainly do not even begin to explain all the events that took place in that lengthy period of five months.

[17] The Third Respondent’s prospects of success in opposing the Applicants’ review application are, as will be seen later, not good at all.

The merits of the review application

[18] In terms of a signed pre-arbitration minute, the Applicants and the Third Respondent listed their first common cause facts as follows:

‘3.1 Dismissal of employee not in dispute.’

[19] Indeed, this concurs with the contents of Third Respondent’s letter of termination of the employment contract to the Second Applicant dated 27 July 2010.

[20] The Second Respondent appeared to be alive to such common cause fact when, early on in his award, he states as follows:

‘ISSUE TO BE DECIDED

3. I am required to determine whether the Applicant’s dismissal in terms of section 191(5)(a)(iii) of the Labour Relations Act (LRA) No. 66 of 1995, as amended, was substantively and procedurally fair.’

[21] It is, therefore, astounding and indeed incomprehensible how, after examining the evidence of the witnesses at the arbitration hearing for 17 pages, the Second Respondent comes to the sole finding that the Second Applicant had failed to establish his dismissal.

[22] Second Respondent clearly misconstrued the nature of the enquiry that he was meant to undertake, namely, whether the Second Respondent’s dismissal was procedurally and/or substantively fair.

[23] On this finding alone, the Second Respondent’s award must be set aside.

The fairness of the Second Applicant’s dismissal

[24] Applicants submit that I am in a position to determine the fairness of Second Applicant’s dismissal on the papers whereas the Third Respondent contends that in the event that the arbitration award is successfully reviewed and set aside, I should remit the matter back to the First Respondent for an arbitration de novo.

[25] I agree with the Applicants’ contention in the above regard and am of the view that it would serve no purpose to repeat the evidence before another arbitrator under the auspices of the First Respondent.

[26] The issues to have been decided at the arbitration hearing were whether the Second Applicant’s dismissal was procedurally and/or substantively unfair.

[27] The procedural fairness of the Second Applicant’s dismissal is a simple enquiry.

[28] It is common cause that the Second Applicant was served with his termination letter (which was effectively a summary dismissal letter) on 27 July 2010 without any semblance of a hearing having taken place before that decision was made.

[29] Second Applicant’s dismissal was thus procedurally unfair.

[30] The crisp issue to have been decided at the arbitration hearing with regard to the substantive fairness of Second Applicant’s dismissal was whether he was required (contractually or otherwise) to perform commuted overtime.

[31] It appears that the Second Applicant’s rationale for deciding to withdraw from commuted overtime was to devote more time to his studies.

[32] It is clear from both the Second Applicant’s appointment letter as well as his contract of employment that both documents are silent on the issue of commuted overtime.

[33] Moreover, the Department of Health’s circulars with regard to commuted overtime (which formed part of the record) do not make such overtime obligatory.

[34] In fact, the Department of Health circulars make specific mention under the heading of “Commuted Overtime Options” of an option of doing no overtime at all.

[35] Indeed, even in the name “Commuted Overtime” it suggests strongly that overtime is voluntary.

[36] Moreover, Respondents’ witnesses conceded that the head of department would have a discretion to allow a Registrar not to work overtime or to extend the period of training.

[37] From the Second Respondent’s award, it is clear that he was fully alive to the above issue as he recorded therein that it was indeed common cause between both sides’ witnesses that the period of training could simply be extended to Registrars who opt out of commuted overtime.

[38] It appears that there was indeed no rational reason to dismiss the Second Applicant and, accordingly, I find that his dismissal was substantively unfair too.

[39] In the above circumstances and in terms of Section 193(2) of the Labour Relations Act, I am enjoined to reinstate the Second Applicant unless:

‘(a) the employee does not wish to be reinstated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practical for the employer to reinstate or re-employ the employee; or

(d) the dismissal is unfair only because the employee did not follow fair procedure.’

[40] It appears that the Second Applicant is seeking retrospective reinstatement.

[41] There is no evidence before me which suggests that a continued employment relationship between the parties would be intolerable.

[42] Neither Third nor Fourth Respondents have produced any evidence to suggest that it would not be reasonably practicable for them to re-employ the Second Applicant and I presume that as the Fourth Respondent is a large academic hospital and as the Third Respondent is a large organ of State, there should be no practical difficulty in Second Applicant being re-employed into his old position of a Registrar in the Anaesthesiology Department.

[43] The dismissal is held to be both procedurally and substantively unfair and, accordingly, the principal remedy of reinstatement is applicable.

[44] As the parties will have their employment relationship renewed in terms of this order, I do not deem it appropriate to order any costs.

Order

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

(i) The Applicants’ condonation application is granted;

(ii) The Third Respondent’s application for condonation is dismissed;

(iii) The Second Applicant is reinstated into his position as a registrar in the Anaesthesiology Department at the University of Pretoria’s Steve Biko Hospital with immediate effect;

(iv) Such reinstatement shall be fully retrospective;

(v) There is no order as to costs.

__________________

Jackson, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Instructed by:

For the Respondent:

[1] 1962 (4) SA 531 (A) at 532C-E