Case Number:PSHS192-16/17
Panellist: Thando Ndlebe
Date of Award: 13 December2016
In the ARBITRATION proceedings between:
NEHAWU obo MHLONGO, T.FAPPLICANT
And
HOD - DEPARTMENT OF HEALTH, MPUMALANGARESPONDENT
DETAILS OF HEARING AND REPRESENTATION
1. The matter was sat down before me as an arbitration process on 3 October 2016, 4 October 2016, 15 November 2016, 16 November 2016, 17 November 2016 and 18 November 2016 in Nelspruit. The Applicant, Dr. Florence Thokozani Ntuli, was present and was represented by Mr. Ponoane, an attorney from Ponoane Attorneys and as instructed by the National Health Education and Allied Workers Union, (Nehawu).
2. The Respondent was represented by Mr. Theron, an attorney from Adendorff Attorneys.
3. The parties submitted bundles of documents and same were admitted and marked as Applicant’s Bundle “A-1” and “A-2” and Respondent’s Bundle “B”.
ISSUES TO BE DECIDED
4. I am required to determine whether or not the Applicant was unfairly dismissed by the Respondent, both procedurally and substantively.
BACKGROUND TO THE DISPUTE
5. The Applicant was appointed by the Respondent on 1 August 2013 in the position of Deputy Director General – District Health Services. The Applicant was earning a monthly salary of R109978.51 at the time of her dismissal on 20 May 2016.
6. The Applicant’s trade union referred her unfair dismissal to the Council and it believed that her dismissal by the Respondent was procedurally and substantively unfair. The Applicant seeks retrospective reinstatement as relief.
SUMMARY OF EVIDENCE AND ARGUMENTS
RESPONDENT’S CASE
7. The Respondent called in three witnesses in support of its case.
Advocate Charl Strydom
8. He an admitted advocate and possesses the following qualifications; Bachelor of Commerce (Law), Bachelor of Laws (LLB) and Masters Degree in Labour Law (LLM). He was the chairperson of the disciplinary hearing that resulted in the dismissal of the Applicant. He has been practising as an advocate as from 2001 and specialises in forensics and Labour Law. He was appointed by the Respondent to chair the Applicant’s disciplinary hearing as confirmed at page 276 of Bundle “B”.
9. The charges of misconduct against the Applicant were duplicated. At the commencement of the disciplinary hearing he ruled that Charges 1, 2 and 6 be restructured into a single charge (new “Charge 1”. He also ruled that Charges 3, 5 and 7 be restructured into one charge (the new “Charge 2”). The charges that the Applicant was subsequently dismissed for at the disciplinary hearing were as follows;
Charge 1- “Failure to avoid irregular and or unauthorised and or fruitless and wasteful expenditure in relation to the appointment of three Ward Clerks at the Evander Hospital; and
Charged 2 - Failure to avoid irregular and or unauthorised and or fruitless and wasteful expenditure in relation to the appointment of three Telkom Operators at the Evander Hospital”
10. The main issues that the Applicant was charged with by the Respondent related to financial misconduct. The Applicant raised a procedural issue in respect of the Initiator and the initial Initiator, namely Mr. Lehlohonolo was replaced by Mr. Dr. Tonie Botha. It is clear at his Findings Report at page 257 of Bundle “B” that the charges of misconduct against the Applicant followed after a forensic investigation by Sedupe & Metje Consulting (Pty) Limited. The Applicant was charged for recommending a process that resulted in the appointment of 3 Ward Clerks and 3 Telkom Operators at Evander Hospital.
11. The Respondent’s Recruitment and Selection Policy requires that a recruitment and selection process of filling positions must be finalized within a period of three months. It was confirmed by the Respondent as set out in pages 226 and 227 of Bundle “B” that during the appointment of the 3 Ward Clerks and 3 Telkom Operators, that it had issued Circular 28 of 2013 and Circular 32 of 2013 which advised managers not to appoint employees during the moratorium period. The essence of Circulars 28 of 2013 and 32 of 2013 was that the Respondent was not expected to fill vacancies during the 2013-2014 Financial Year. The action of the Applicant by recommending the appointment of the 3 Ward Clerks and 3 Telkom Operators amounted to her not having avoided the Department to incur irregular expenditure. The appointments of the 3 Ward Clerks and the 3 Telkom Operators were not properly authorised by the Respondent. The Applicant was not co-operative during the forensic investigation by Sedupe & Metje Consulting.
12 What stood out to him during the disciplinary hearing were the following issues; two positions were initially for two Ward Clerks and two Telkom Operators accordingly, but the vacancies were latter changed to three per role, the moratorium of not filling posts was not followed and the recruitment process was not finalized within the three months prescribed period. The actions of the Applicant lead to an over-expenditure by the Respondent in the 2014-2015 Financial Year. The Evander Hospital fell under the direct responsibility of the Applicant and she was therefore expected to comply with section 45(c) of the PublicFinance Management Act 1 of 1999 which provides that an official in a department “must take effective and appropriate steps to prevent, within that official’s area of responsibility, any unauthorised expenditure, irregular expenditure and fruitless and wasteful expenditure and any other collection of revenue”. It was the evidence of Mr. Shabangu, Deputy Director-Budgeting, during the disciplinary hearing that made him to find the Applicant not guilty of unauthorised expenditure.
13. There was no organogram that was presented by the Applicant during the disciplinary hearing to show that the two extra positions for Ward Clerk and Telkom Operator existed. It was the evidence of Ms. Leya Jiyane, Corporate Services Manager at Evander Hospital, that the Applicant was aware of the rule in respect of the filling of vacancies and that the rule was transgressed. There was evidence that the Applicant was not liable for causing the Respondent to suffer fruitless and wasteful expenditure. The Applicant did not deny being involved in the appointment of 3 Ward Clerks and 3 Telkom Operators. During the disciplinary hearing, the Respondent did not provide any evidence to indicate when the moratorium was uplifted. However, the evidence of both Mr. Boikanyo of Sedupe & Metje Consulting and that of Ms. Jiyane was that the Applicant committed the misconduct whilst the published Respondent’s moratorium was in place. The Applicant failed to prevent irregular expenditure. In as much no evidence was lead by the Respondent to prove that it always filled its vacancies within a period of three months, same cannot be construed to mean that a rule in this regard did not exist.
14. The Hippocratic Oath of medical doctors is not only limited to saving lives. The Applicant came up with excuses during the disciplinary hearing, like stating that her unit was understaffed and mentioned the HippocraticOath. When the Applicant saw the defect in the memoranda that she signed, she should have made written submissions to the Head of Department. He applied his mind before making a determination of a sanction of dismissal as set out at pages 265 to 269 of Bundle “B”. He also considered the mitigating circumstances of the Applicant and the aggravating circumstances of the Respondent before he decided on the sanction of dismissal.
Under cross-examination, Advocate Strydom responded as follows;
15. He agreed that the Applicant was suspended for a long time before she was finally charged by the Respondent. The disciplinary hearing was supposed to have commenced within a reasonable time after the suspension of the Applicant. He agreed with a reference to a paragraph at page 238 of Workplace Law, 10thEdition, by John Grogan where it is stated that “a hearing must not be unreasonably delayed so that it can be dealt with when it is still fresh in the minds of the parties”. He disagreed that a delay in charging an employee after his or her suspension amounted to a waiver to conduct a disciplinary hearing. He decided on a sanction of a dismissal against the Applicant after having considered all the evidence that was presented and that the trust relationship had been broken between the Applicant and the Respondent.
16, In as much there was no financial loss suffered by the Respondent as a result of the Applicant’s action, her misconduct involved unauthorized, fruitless and irregular expenditure. The Public Finance Management Act 1 of 1999 (PFMA) states that fruitless expenditure is an amount that one cannot get value for. The Respondent had to pay salaries as a result of the irregular appointments and same amounted to irregular expenditure. At page 264 of Bundle “B” it is stated that “irregular expenditure is expenditure, other than unauthorised expenditure, incurred in contravention of or that is not in accordance with a requirement of any applicable legislation”. He confirmed that he did not make reference to a loss by the Respondent of an amount of Three Hundred and Thirty Rands (R330000-00) as wasteful expenditure. He disagreed that his findings report in the disciplinary hearing of the Applicant lacked substance.
17. The financial impact to the Respondent as a result of the Applicant’s action only came into reality in the 2014-2015 Financial Year. There was no evidence of irregular expenditure that was occasioned by the Respondent in the 2014-2015 Financial Year. The Applicant was not found guilty of wasteful expenditure and the irregular expenditure came from irregular payments. He did not put amounts in his findings report as he did not think it was necessary. He stated that his findings report related to the charges that were levelled against the Applicant by the Respondent.
18. He agreed that the moratorium was up to the end of the 2013-2014 Financial Year, but irregular expenditure is not linked a period because it can go beyond a specific period. The issue of the moratorium had a financial implication for the Respondent in so far as section 81 of the PFMA is concerned. The recruitment of the Ward Clerks by the Respondent started on 9 July 2013. The moratorium was effective as from 30 September 2013. He did not draft the charges that were levelled against the Applicant. He disagreed that the charges that were put the Applicant were vague and embarrassing. The reference in the charges to February 2013 was a typing error. The Applicant was found guilty of failing to prevent irregular expenditure as envisaged in section 45(c) of the PFMA.
19. He decided on the sanction of dismissal as he also considered public interest on the matter. The nature of the charges also related to issues pertaining to a broken working employer-employee relationship that had come to an end. It was not Applicant that appointed the extraemployees, but she was pivotal in the appointments. In as much there is no input by the Applicant in the Recommendation for Filling of Posts of 3 Ward Clerks at Evander Hospital dated 3 February 2014 and as appearing at pages 231 to 238 of Bundle “B”, she “supported” the recommendation. The Applicant signed the Memorandum on 24 February 2014. The recommendation dated 3 February 2014 was made by Ms. Hlatshwayo, the Chief Executive Officer of Evander Hospital. The Applicant was supposed to have avoided irregular expenditure. It was the Head of Department that prepared the Memorandum.
20. There might have been a discrepancy in dates in the Memorandum at pages 231 and 240 of Bundle “B”. The fact that no person complained to the Member of the Executive Council about the irregular appointments is irrelevant. The Applicant was charged by the Respondent for having failed to avoid irregular expenditure. In terms of section 45(c) of the PFMA in the event a government process is wrong, then the outcome will also be wrong. He also considered the Department of Public Service Labour Relations Guidelines before deciding on a sanction of dismissal.
Mr. Mogomotsi Boikanyo
21. He is a Director of Sedupe & Metje Consulting and has a Bachelor of Commerce Degree in Forensics and has also studied in the United States of America. Sedupe & Metje Consulting was appointed to conduct investigations into acts of irregularities within the Respondent. The investigation and as confirmed at page142 of Bundle “A”, discovered that Mr. Sithole (the Acting Chief Director Human Resources), Mr. Makhubedu (the Deputy Director General - Finance), the Applicant (Deputy Director General – District Health Services) and the Dr. Mhlongo (the Head of Department) supported the recommendations of a recruitment panel to appoint three Ward Clerks instead of two and three Telkom Operators instead of two as it was stated in the applicable advert. It was clear in the advert stated found at page 239 of Bundle ‘B” that the adverts in July 2013 were for two (2) Ward Clerks and two (2) Telkom Operators accordingly.
22. There was negligence on the part of the Applicant in that she could have avoided the irregular appointments as per the memorandum at pages 231 to 240 of Bundle “B”. The Respondent advertised two (2) Ward Clerks and two (2) Telkom Operators positions; however the Applicant supported the irregular appointments of two extra employees as confirmed in the abovementioned memoranda. The Applicant infringed section 45(c) of the PFMA in that she failed to avoid irregular expenditure. The appointments of the three(3) Ward Clerks and three (3) Telkom Operators were finalized beyond the three months period as provided for in the Respondent’s Recruitment and Selection Policy and as set out at page 286 of Bundle“B”. There was therefore non-compliance in respect of the Recruitment and Selection Policy by approximately seven months.
23. The Respondent issued Circulars 28 of 2013 and 32 of 2013 wherein it issued a moratorium on the filling of posts and on transfers. The Circulars as contained at paragraphs 227 and 228 of Bundle “B” were addressed to the following officials, namely; Deputy Director-Generals, Chief Directors, District Directors, Directors, Medical Managers, Chief Executive Officers, Nursing Managers and Heads of Human Resources / HRD Practitioners, (my emphasis). The posts could only be filledduring the moratorium period only in exceptional circumstances. The Respondent invoked the moratorium on the filling of positions as it was in dire financial difficulties. The Applicant was aware of the moratorium on filling vacant positions.
24. In as much the recommendations for the irregular appointments were made during the 2013-2014 Financial Year, there was still financial misconduct on the part of the Applicant even though the appointments were effective in the 2014-2015 Financial Year. There were no posts that were supposed to be filled within the Respondent in the 2013-2014 Financial Year. Prejudice to the Respondent is not a requirement in acts of irregular financial expenditure.
Under cross-examination Mr. Boikanyo responded as follows;
25. His company was appointed by the Respondent to conduct investigations in July 2014 by involving alleged irregular appointments of 1062 staff. The Respondent then extended the scope of the activities of Sedupe & Metje Consulting on 18 November 2014. Sedupe & Metje Consulting was given authority as provided by the Respondent to appoint Dr. Tonie Botha as an Initiator in the disciplinary hearing of the Applicant on 1 February 2016. The role of Sedupe & Metje Consulting also involved in it assisting in disciplinary hearings within the Respondent.
26. Dr. Tonie Botha is an external consultant. Dr. Tonie Botha isnot within the employ of Sedupe & Metje Consulting and he was appointed by the former to assist as an Initiator. He brought in Dr. Tonie Botha as a Consultant. There was nothing irregular with the appointment of Dr. Tonie Botha as his appointment was made by the Respondent’s Head of Department, namely Dr. Morake. The person who raised the issue of the irregular appointments was the Head of Department. The Applicant in her appointment as a Deputy Director-General was bound by the Senior Management Handbook, the Labour Relations Act 66 of 1996, the Public Finance Management Act 1 of 1999 and the Respondent’s Recruitment and Selection Policy. The PFMA provides that the Respondent’s officials must avoid irregular expenditure. He could not state which specific rule was broken by the Applicant. He never interviewed the Applicant during the forensic investigation period as she was not co-operative.
27 In the event the then Head of Department, namely Dr.J.V Dlamini, was in the employ of the Respondent at the time the Applicant was charged, he could also have been disciplined for misconduct. Mrs Hlatshwayo, the Chief Officer of Evander Hospital, was not charged by the Respondent even though she supported the irregular appointments. There was no need for the investigators to interview Mrs. Hlatshwayo. There was also need to interview for recruitment panel that was involved in the irregular appointments. In the event the interviewing panel wanted to fill in the vacancy of a candidate who had passed away during the finalization of the appointment process, a deviation process should have been submitted to the Respondent’s top management to that effect. The Respondent formally charged Mr. Sithole, the current Acting Chief Director -Human Resources and Development, with misconduct.
28. The notice on the moratorium on appointments by the Respondent as found at pages 230 and 231 of Bundle “B” was also directed to Deputy Director-Generals. The Respondent was charged and dismissed Mr. Makhubedu, the Deputy Director-General Finance for his failure to avoid irregular expenditure. The Respondent did not charge the then Head of Department, Dr. J.V Dhlamini, for his failure to avoid irregular misconduct. The stance of the State is to charge employees who are involved in acts of irregular expenditure with misconduct.
Ms. Sipho Elizabeth Motau
29. She is appointed by the Respondent as Chief Director-Primary Health Care and is also the Acting Deputy Director-General, Clinical Health. The process that involves the filling of vacancies will start at the hospital or at facility level. The recommendation to fill in vacancies will then be forwarded to the Deputy Director General. A recommendation is an opinion that you support a certain decision. The Circular at page 227 of Bundle “B” relates to a situation whereby the Respondent advised managers not to fill in vacancies and to issue appointment letters. The moratorium was issued in September 2013 and for the 2013-2014 Financial Year. The Respondent’s managers were not supposed to fill positions in the organogram that were not budgeted for
Under cross-examination, Ms. Motau responded as follows;
30. She was a junior to the Applicant and they used to work closely. A recommendation is not a decision but it assists the decision-maker to make the final call. Before a final decision is made by the Head of Department, it must pass through other managers for support. Appointments of employees within the Respondent are a competency of the Member of the Executive Council. It is the Head of Department who has the power to make recommendations to the Member of the Executive Council. When the Deputy Director-General receives a memorandum recommending the filling of vacancies, he or she must check if there is a budget for the posts.