Spirov v MEC for Health Gauteng Province and Others (J271/16, J367/16) [2016] ZALCJHB 134 (29 March 2016)

THE LABOUR COURT OF SOUTH AFRICA

JOHANNESBURG

Not reportable

case no: J 271 /16

J 367/16

In the matter between:

DR S G SPIROV

Applicant

and

MEC FOR HEALTH GAUTENG PROVINCE

First Respondent

DIRECTOR GENERAL OF HEALTH GAUTENG

Second Respondent

COMMISSIONER C S MBILENI

Third Respondent

PUBLIC HEALTH AND SOCIAL DEVELOPMENT

SECTORAL BARGAINING COUNCIL (‘PHSDSBC’)

Fourth Respondent

Heard: 3 March 2016

Delivered: 29 March 2016

Summary: Urgent application to make arbitration award an order of Court. Also an urgent application to stay the enforcement of the arbitration award pending a review application.

JUDGMENT

PRINSLOO,J

Introduction

[1] The Applicant (‘Dr Spirov’) approached this Court on an urgent basis in terms of the provisions of section 158(1)(c) of the Labour Relations Act[1] (‘LRA’) seeking the following relief under case number J 271/16:

a. That the arbitration award dated 11 January 2016 be made an order of Court;

b. Alternatively, that the First and Second Respondents be ordered, pending the finalisation of the review application, to employ and remunerate the Applicant on the scale and at the rate of remuneration he would have been entitled to but for his dismissal until the review application has been finalised;

[2] The urgent application was set down on 25 February 2016 when it was postponed to 3 March 2016 by agreement between the parties. The First and Second Respondents (‘Respondents’) were afforded an opportunity to file an application for the stay of

the enforcement of the arbitration award by 26 February 2016. The application for the stay of enforcement of the arbitration award was filed under case number J 367/16 and is opposed by Dr Spirov.

[3] On 3 March 2016 the two matters (J271 / 16 and J367/16) were set down simultaneously. I will refer to the parties as they are under case number J271/16.

Brief history:

J271/16

[4] Dr Spirov was employed as a medical doctor by the Gauteng Provincial Department of Health until his dismissal for reasons related to misconduct. Dr Spirov subsequently referred an unfair dismissal dispute to the Fourth Respondent (‘PHSDSBC’) and the dispute was arbitrated by the Third Respondent on a number of days between 5 August and 11 December 2015.

[5] An arbitration award was issued on 11 January 2016 wherein the Respondents were ordered to reinstate Dr Spirov retrospectively, to pay him back pay in the amount of R 850 642,76 and Dr Spirov was ordered to report for duty by no later than 25 January 2016. This is the arbitration award the Applicant seeks to make an order of Court.

[6] Dr Spirov reported for duty on 25 January 2016. On 26 January 2016 he was told to attend the human resources office where he was informed not to report for duty as the Respondents intended to review the arbitration award.

[7] Dr Spirov explained the reasons why he was compelled to bring this application on an urgent basis as follows: he qualified as a surgeon in Bulgaria and came to South Africa to practice his career. In terms of the requirements of the Health Professions Council of South Africa (‘HPCSA’) pertaining to foreign medical qualifications he is not allowed to practice as a specialist without re-doing the specialization at an accredited tertiary institution and that would take five years. Dr Spirov’s registration with the HPCSA is restricted to that of a medical practitioner in the ‘public service’ category and he can only be employed as a doctor in the Department of Health or its accredited institutions. As a result of his dismissal, he is blocked on the database and he cannot find any employment with any hospital within the scope of his registration and he is unable to generate any form of income.

[8] A bleak and miserable picture is painted of Dr Spirov’s financial position, aggravated by his inability to generate income.

[9] The application is opposed and the Respondents who took issue with the fact that the application is not urgent and and that no proper case was made out for the relief sought. Dr Spirov also took issue with urgency in the application to stay the enforcement of the arbitration award under case number J367/16.

[10] I do not intend to spend much time on the issue of urgency as raised by the parties in both applications. I have decided to take a practical approach and to deal with the two applications before me on an urgent basis.

[11] The Respondents submitted that Dr Spirov failed to make out a case that his prospects of success in the review application are strong and those of the Respondents' are weak. In my view this submission does not take the Respondents’ case further as at the time when Dr Spirov filed his section 158(1)(c) application, the Respondents had not filed an application for review and it was impossible for Dr Spirov to know what grounds for review they would raise and how strong or weak either party’s prospects of success would be.

[12] Be that as it may, the issue I have to decide is whether Dr Spirov is entitled to the relief he seeks in terms of section 158(1)(c) of the LRA.

J367/16

[13] The Respondents on the other hand filed an urgent application for the stay of the enforcement of the arbitration award issued on 11 January 2016 pending the determination of the review application. The review application was filed on 2 March 2016 under case number JR 390/16.

[14] The Respondents' seek the stay of enforcement of the arbitration award pending the outcome of the review application as there is a possibility that the award may ultimately be set aside. The Respondents’ case is that they will be irreparably prejudiced in that they would be compelled to reinstate Dr Spirov in circumstances where his ability and integrity as a surgeon is in question and they will be compelled to pay an amount of R 850 642 to Dr Spirov, which they will be unlikely to recoup in the instance of a successful review application.

[15] Dr Spirov opposes the application and advanced reasons why he should be reinstated to his former position and why the Respondents’ inconvenience and prejudice are significantly less than his.

The applicable principles

[16] Making an arbitration award an order of Court gives rise to certain legal consequences. The legal status of the award changes and it becomes an order of this Court. It is trite that this Court’s orders cannot be reviewed and once an arbitration award has been made an order of court, a review application of such an 'award' is no longer competent. Any such right as a party may have to take the arbitration

award on review, ceases the moment the award is made an order of Court. For so long as the order of this Court making such award an order of this Court stands, it would not be competent for this Court to review such an 'award'[2].

[17] In casu I am faced with an application to make the arbitration award an order of Court and if I were to grant such an order, the effect will be that the Respondents’ right to challenge the arbitration award on review ceases and the award will have the status of an order of Court.

[18] However, the application in terms of section 158(1)(c) cannot be decided on its own as I am also faced with an application to stay

the enforcement of the arbitration award pending the finalization of an application for review.

[19] To succeed in stay proceedings, the applicant must satisfy the Court that it has good prospects of success in the pending matter, that the balance of convenience is in its favour and that it would be in the interest of justice to stay the present proceedings.

[20] The Respondents’ case is that they have prospects of success in the pending review application. The alleged conduct of Dr Spirov on 13 January 2015 when he was the lead surgeon and performing a laparotomy operation on a patient, during which he left the theatre whilst the patient was lying on the operation table with his abdomen open and his bowel exposed and smoked a cigarette, is viewed in a very serious light by the Respondents. The Respondents’ case is that Dr Spirov failed to render, as he was obliged to, medical treatment with care, skill and diligence as could reasonably be expected of a medical practitioner and he made himself guilty of medical malpractice and gross professional misconduct. According to the Respondents this justified his dismissal and he is viewed as a danger to patients. The Respondents submitted that the arbitrator ignored material evidence when he reinstated Dr Spirov.

[21] It is evident from the Respondents’ papers before this Court that the Respondents take serious issue with the fact that Dr

Spirov was reinstated. This is more so as the Respondents are of the view that he has not rendered medical services with the expected

degree of skill and diligence, they do not trust him as a medical practitioner and his reinstatement is untenable.

[22] These allegations are denied by Dr Spirov.

[23] It is my view that the review Court would be in the best position to decide whether reinstatement is appropriate or not and will do so with due consideration of the transcribed record of the arbitration proceedings, the findings of the arbitrator and the grounds for review as raised by the Respondents.

[24] If the arbitration award is made an order of Court at this stage, it will close the door for the Respondents.

[25] For purposes of the two applications I have to consider, it appears prima facie that the Respondents may have prospects of success on review and ultimately there is a possibility that the arbitration award may be reviewed and set aside. I say this in the context of the current applications and I do not express any views on the merits of the application for review that will be considered by another Court.

[26] On the balance of convenience the Respondents’ case is that they would be irreparably prejudiced if the stay application is

not granted as they would be compelled to reinstate Dr Spirov in circumstances where his ability and integrity as a surgeon is in question and they will be compelled to pay an amount of R 850 642 to Dr Spirov, which they will be unlikely to recoup in the instance of a successful review application. This is more so where Dr Spirov has stated his financial difficulties and inability to generate income. There is no prospect that the Respondents would be able to recover an enormous sum of tax payer’s money that would be paid to Dr Spirov in the event of a successful review application.

[27] The Respondents acknowledge that Dr Spirov will be prejudiced if the enforcement of the arbitration award is stayed pending the outcome of the review application. However, so they submit, should he ultimately be successful, he will be compensated accordingly and paid retrospectively. The prejudice to Dr Spirov is outweighed by the Respondents’ prejudice.

[28] Dr Spirov on the other hand submitted that the prejudice and inconvenience of the Respondents are significantly less than his prejudice and inconvenience. Dr Spirov submitted that financial compensation when the review is finalised will not enable him to recuperate the loss he already suffered and he is not able to liquidate any further assets to survive. He also submitted that there was no evidence before Court that the Respondents would not be able to recoup the amount paid to him. Dr Spirov is prepared to accept that the execution of the amount of back pay be stayed but that the Respondents redeploy him to earn a salary until such time the review application is finalised.

[29] In my view Dr Spirov successfully painted a picture of an individual who experiences severe financial difficulties, which is aggravated by the fact that he is unable to earn an income and he has reached the point where he cannot liquidate any further assets. The prejudice suffered by Dr Spirov is obvious.

[30] However, on his own version and based on his poor financial position as a result of his dismissal he would in all probability not be in a position to repay any amounts, should the Respondents ultimately succeed in their application for review. For these reasons Dr Spirov submitted that the execution of the back pay of R 850 642 be stayed pending the outcome of the review application.

[31] This brings me to the alternative relief sought by Dr Spirov namely that the Respondents be ordered, pending the finalisation of the review application, to employ and remunerate him on the scale and at the rate of remuneration he would have been entitled to had he not been dismissed.

[32] The difficulty with the alternative relief is that the employment and remuneration of Dr Spirov in these circumstances are based on the relief he was awarded in the arbitration award. Dr Spirov seeks to enforce the prospective portion of the arbitration award, pending the finalisation and outcome of the review application.

[33] If the Respondents ultimately succeed in the review application and the arbitration award is reviewed and set aside, the underlying causa for the relief sought by Dr Spirov would fall away.

[34] In my view the balance of convenience favours the Respondents.

[35] I accept that Dr Spirov will be prejudiced if the enforcement of the arbitration award is stayed, but the prejudice he suffers is not unique, but is suffered by any individual who is dismissed and unable to find alternative employment. The harm is however not irreparable in that he would be paid his retrospective back pay and whatever other monies that might be due to him should the review application ultimately fail.

[36] A review application is by its nature an urgent application and this is confirmed in the Practice Manual for the Labour Court wherein strict timeframes are set out for review applications. Item 12.4 of the Practice Manual also provides that parties may approach the Judge President to have any application heard on an expedited basis. Dr Spirov has remedies to expedite the adjudication of the review application and his section 158(1)(c) application. He is not left at the mercy of an open ended process.

[37] It is customary in this Court where a review application is filed by one party and a section 158(1)(c) application by the other party, both in respect of the same arbitration award, to enrol the two applications simultaneously for hearing on the same date.

[38] It would be in the interest of justice that the review application be considered on its merits and that the enforcement of the arbitration award be stayed pending the outcome of the review.

[39] I can see no reason why the Respondents’ review application and Dr Spirov’s section 158(1)(c) application under case number J 271/16 should not be enrolled simultaneously once the review application is ripe for hearing.

[40] This Court has a discretion in respect of costs and in my view the interest of justice will be best served by making no cost order.

Order

[41] In the premises, I make the following order:

41.1 The enforcement of the arbitration award issued on 11 January 2016 under case number PSHS995-14/15 is stayed pending the determination of the review application under case number JR 390/16

41.2 The Registrar is directed to enrol the section 158(1)(c) application under case number J271/16 for hearing with the review application under case number JR 390/16.

41.3 There is no order as to costs.

_______________________

Connie Prinsloo

Judge of the Labour Court

Appearances

For The Applicant

: Advocate G J Scheepers

Instructed by

: VZLR Inc Attorneys

For the First and Second

Respondents

: Advocate T Mabuda

Instructed by

: Ngcebetsha Madlanga Attorneys

[1] Act 66 of 1995.

[2] Potch Speed Den v Rajah (1999) 20 ILJ 2676 (LC).