Witkoppen Health & Welfare Centre v NEHAWU and Others (J552/18) [2018] ZALCJHB 202 (21 June 2018)
The court found that, based on the Essential Services Committee's ruling, only those employees who render support services such as dispensary, laundry, and transport are entitled to strike, provided they comply with the statutory requirements for strike action. Employees performing the essential healthcare and...
Source-derived case information.
- Citation
- [2018] ZALCJHB 202
- Parties
- Applicant: Witkoppen Health & Welfare Centre; Respondent: NEHAWU; Respondent: Persons appearing in Annexure “AW 2”
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Judgment Date
- 21 June 2018
- Case Number
- J552/18
- Procedural Posture
- Urgent Application / Return Date of Interim Interdict
- Outcome
- Interim interdict confirmed in respect of employees rendering essential services; no order as to costs.
- Judges
- B Whitcher
- Legal Topics
- Essential Services, Right to Strike, Interim Interdict, Minimum Services Agreement
Source-derived case record
Summary, issues, holding and outcome
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Parties
Witkoppen Health & Welfare Centre
Applicant
NEHAWU
Respondent
Persons appearing in Annexure “AW 2”
Respondent
Procedural Posture
Urgent Application / Return Date of Interim Interdict
Legal Issues
- 1 Whether the applicant is an essential service provider under the Labour Relations Act.
- 2 Which categories of employees are prohibited from striking due to the essential nature of their services.
- 3 Whether the interim interdict against the strike should be confirmed.
Ratio Decidendi
The court found that, based on the Essential Services Committee's ruling, only those employees who render support services such as dispensary, laundry, and transport are entitled to strike, provided they comply with the statutory requirements for strike action. Employees performing the essential healthcare and welfare functions listed by the ESC are prohibited from striking. The interim interdict previously granted is confirmed only in respect of those employees performing essential services. The court suggested, but did not order, that the parties conclude a minimum services agreement prior to any strike to ensure continuity of critical services.
Court Disposition
Interim interdict confirmed in respect of employees rendering essential services; no order as to costs.
Orders
- The Order of this Court, issued on 27 February 2018, is confirmed in respect of only the respondent employees who render services as described in (b) above of the ESC ruling.
- There is no order as to costs.
Full Case Text
Judgment text and source record
58 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: J 552-18
Not Reportable
In the matter between:
WITKOPPEN HEALTH & WELFARE CENTRE Applicant
and
NEHAWU First
Respondent
PERSONS APPEARING IN ANNEXURE “AW 2” Further
Respondents
Heard: 7 June 2018
Delivered: 21 June 2018
JUDGMENT
WHITCHER J
[1] Pursuant to a dispute which appears to be a wage dispute but is characterised as a ‘refusal to bargain’ dispute by the respondents, an advisory award and a certificate of outcome, stating that the matter remains unresolved were issued on 19 January 2018.
[2] On 20 February 2018 the first respondent advised the applicant that it intended to serve a strike notice on 22 February 2018.
[3] In response and on an urgent basis, the applicant applied to this court for an interim order interdicting the strike. The order was granted and this is the return date of the order.
[4] The crux of the applicant’s claim in its founding affidavit is that it renders an essential service because it provides healthcare to an average of 6000 patients per month.
[5] In an opposing affidavit, dated 24 May 2018, the respondents submitted that the applicant failed in its founding papers to prove
that it is an essential service.
[6] In its replying affidavit, dated 6 June 2018, the applicant indicated that it had referred the matter to the Essential Services Committee. Both parties had attended the hearing on 4 June 2018, at which hearing both parties were given an opportunity to make
representations to the ESC, and thereafter the ESC issued a written ruling.
[7] In terms of the ruling, which is attached to the replying affidavit, the ESC found as follows:
‘(a) The applicant is a health and welfare non-profit organisation that receives funding from the Government and private donors. The applicant services the underprivileged communities from Diepsloot, Lion Park, Msawawa and Cosmos City. It provides primary health care, advanced clinical care for paediatric and complicated HIV positive patients, HIV/TB management services, mental health clinic, antenatal and post-natal care, social services focusing on orphans and vulnerable children.
(b) The following services rendered by the applicant are essential services:
Emergency health services and the provision of emergency health facilities to the community or part thereof;
‘Nursing;
Medical and paramedical services
Mental health care
Diagnostic assessments of new referrals in respect of people with intellectual and psychiatric disabilities.
Psychological assessments
Therapeutic counselling services and any other form of counselling
Mental health crises management
Court preparation and assistance for victims who are users
Rehabilitation services
Treatment (including assistance with adherence to medication
Training (only to the extent that it is offered to the mental health users
(c) The following support services are not essential services: support services of dispensary, laundry and transport.’
[8] In light of the ruling by the Essential Services Committee, this court finds that only those employees who render services as
described in (c) above of the ruling have the right to strike once they have complied with section 64 (1)(b) of the Labour Relations
Act, 1995 (the rule pertaining to a strike notice).
[9] It is, however, suggested (because this court does not have the power to order same), that the parties conclude a minimum services
agreement prior to any strike.
[10] In the premises, I order as follows:
Order
1. The Order of this Court, issued on 27 February 2018, is confirmed in respect of only the respondent employees who render services as described in (b) above of the ESC ruling.
2. There is no order as to costs.
________________________________
B Whitcher
Judge of the Labour Court of South Africa
Appearances:
For the applicant: S Swartz
Instructed by:
Bongani Khanyile Attorneys
For the respondents: V J Chabane
Instructed by:
Mophosho Inc Attorneys