CASE NO:PSHS467-16/17
PANELIST:P DHLODHLO
DATE OF AWARD:3 DECEMBER 2016
In the matter between:
HOSPERSA obo MALGAS E 3 others APPLICANTS
and
DEPARTMENT OF HEALTH- EASTERN CAPERESPONDENT
DETAILS OF THE HEARING AND REPRESENTATION
1.The arbitration of the dispute between the applicants, (E Malgas, U Rayners, A Wessels, and A Schereka) and the respondent, Department of Health- Eastern Cape, was scheduled at the respondent’s Uitenhage Hospital boardroom on 4 October and 29 November 2016.
2.The applicants were represented by Mr T Matshoko, a union official. Mr P Oosthuizen represented the respondent.
3.The applicants’ representative submitted that the application to join the other three applicants in addition to E Malgas was submitted to the Council in line with the Rules. The respondent did not object to the application for the joinder due to the nature of the dispute.
4.I then granted the joinder application.
5.These proceedings were digitally recorded.
ISSUE IN DISPUTE
6.I am required to establish whether Resolution 3 of 2007 (Occupational Specific Dispensation for Nurses Collective Agreement) in relation to professional nurses in the Speciality Unitsand paragraph 11.5 A of the grandfather clause was applied accordingly, and if not, to determine accordingly.
BACKGROUND
7.The applicants are challenging the abovementioned Resolution, arguing that they were managing the speciality units at the time of the implementation of the said Resolution, but were not translated.
8.The respondent concurred with the applicants in that at the time of implementation of the OSD they were managing the speciality units, but only translated as general on 1 July 2008, instead of the once off translation as stipulated.
SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s version
9.Ms Margaret Malgas testified that she performed the Operational Manager’s duties at the respondent’s ante -natal unit since February 2003. She and the other applicants: Rayners (Emergency Unit), Wessels (Labour Unit), Schereka (Paediatrics Unit) did not receive the once –off translation in line with grandfather’s clauseprovision relating to the translation of professional Nurses, who are not in possession of the prescribed qualifications to posts in Speciality Nursing and Primary Health Care (PHC) in the collective agreement.
10.Clause 11.5.A states that : A Professional Nurse(Registered Nurse) who is managing a nursing speciality unit (Including a primary health care clinic), and who is not in possession of a post-basic clinical nursing qualification listed in the Government Notices R48 or R212, but who has been performing these duties of managing the speciality unit satisfactory on 30 June 2007, shall be translated as a once –off provision to the appropriate salary scale attached to the corresponding management level.
11.In cross-examination she stated that she was only appointed to the Operational Manager general position only in 2008 subsequent to an advertisement of the position. The said clause was never implemented, contrary to the OSD provisions.
12. Ms Anna- Marth Goosen testified that she was the nursing manager Maternity and Paedatrics. She concurred with the applicant’s version that their (applicants) submissions for the once-off translation were never implemented. Instead the respondent advertised the positions and they were filled in 2008.
13.She reiterated that the applicants performed their duties satisfactorily and were in the designated speciality units. The other applicants confirmed the first applicant’s version on record.
14.During cross-examination she submitted that the applicants were appointed formally as Operational Managers in the said units, without the once off translations as expected.
ANALYSIS OF EVIDENCE AND ARGUMENT
15.The applicants are challenging the respondent’s failure to translate them in line with clause relating to the translation of professional nurses who are not in possession of the prescribed qualifications to posts in Speciality Nursing and Primary Health Care.
16. It was not in dispute that the applicants performed the duties in the designated positions to the best of their abilities, without the prescribed qualifications. The objective of the Resolution was to retain both nursing professionals, with or without prescribed qualifications in the public service. From the Resolution it is clear that those who do not possess the qualifications had to be compensated with a once-off payment for the duties performed, whilst managing a nursing speciality unit.
17.No justification was presented by the respondent to contest the applicants’ averments in relation to the clause and their duties in the designated positions. Secondly, their subsequent appointment in the Operational Manager’s positions did not remedy the failure of the respondent to act in accordance with the Resolution.
18.Clause 11.5.A states that : A Professional Nurse(Registered Nurse) who is managing a nursing speciality unit (Including a primary health care clinic), and who is not in possession of a post-basic clinical nursing qualification listed in the Government Notices R48 or R212, but who has been performing these duties of managing the speciality unit satisfactory on 30 June 2007, shall be translated as a once –off provision to the appropriate salary scale attached to the corresponding management level.
19.The wording of clause 11.5.A, is clear and unambiguous. It was intended to benefit nurses who had been performing managing duties satisfactory on 30 June 2007, in that they would receive a once-off translation. Again if the drafters of the clause had other intentions, such provisions would have been crafted accordingly in the said provisions. I find that the respondent failed to implement the OSD to the applicants without a just cause and/or plausible explanation.
20. In the light of both submissions, I am convinced that both parties’ submissions in these proceedings, concurred with the said OSD Regulations.
I therefore deem it appropriate to make the following award:
AWARD
21.The applicants (E Malgas, A Wessels, UM Rayners and AJ Schereka qualified to benefit from the above mentioned OSD grandfather’s clause accordingly.
22.The respondent must translate the applicants in accordance with Clause 11.5.A of Resolution 3 of 2007 and pay them all the monies due on or before 31 December 2016.
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PHSDSBC PANELLIST
PSHS467-16/17Page 1