Eastern Cape Health has been ordered to immediately reinstate the CEO of Fort England Hospital, Dr Roger Walsh, after the Labour Appeal Court found he had been dismissed to allow the department to escape liability for illegal union behaviour at the facility.
“A court cannot permit anarchy to be rewarded and couch it as being justified in the name of the public interest. That is the route to the destruction of constitutional governance,” Daily Maverick reports Judge Dennis Davis wrote in his Labour Appeal Court judgment.
During his tenure, the former superintendent-general of Eastern Cape Health, Dr Thobile Mbengashe, had removed the CEOs of the Livingstone, Dora Nginza and Elizabeth Donkin hospitals after they fell out with the unions.
In August 2018, Walsh was removed by the department from the facility through a forced transfer to Bhisho and subsequently dismissed when he refused to take up another position. His case in the Labour Court was dismissed initially, with Judge André van Niekerk finding that the department had acted in the public interest to restore peace at the hospital.
But on Thursday, 1 April the Labour Appeal Court ruled that Walsh must immediately be reinstated to his position as CEO.
Walsh was appointed acting CEO of Fort England Hospital in August 2012 to manage the administrative challenges the hospital had at the time. Grocott's Mail reports that curt documents describe a situation in which nurses were split from clinical staff, refusing to take blood on doctors’ instructions and refusing to interpret for them. Under a “chaotic” administration absenteeism was rampant, employees used hospital facilities to run their own personal businesses during working hours, security guards were used to do the work of nurses and many staff members were “inappropriately interacting financially with patients”.
When Walsh began to tackle these challenges he met strong opposition from within the institution and his original court documents detail a subsequent series of unlawful strikes and violent incidents from May 2013 through to July 2016.
Matters came to a head in 2016. First, in February, a court interdict was granted against the unions and their shop stewards from threatening, harassing and intimidating employees and approaching the hospital other than to work. Then senior officials from the Health Department met with organised labour, union representatives and hospital management and unions demanded Walsh be removed. In July 2016, Denosa informed the hospital’s labour relations officer they would forcibly remove Walsh and the rest of the hospital’s management team.
A labour law specialist appointed that year to conduct an independent investigation had found ‘no fault;’ with the management style of the hospital. While the workforce had withdrawn because management took decisions without consulting them, they were the kinds of decisions that didn’t require they be consulted in terms of the LRA.
Also in July 2016, 11 clinical staff members wrote to the Department highlighting the report and expressing strong concern over the situation at the hospital.
However, the Department first ordered Walsh to remove himself from the hospital for three weeks for the situation to calm down, then transferred him to a post at its head office in Bhisho. The Department said it was in the interest of the public and the hospital’s patients. His presence there was upsetting the unions, and this was resulting in instability at the institution, the Department said.
“The evidence reveals engagements between [Walsh and the Department were anything but fair,” the Judges say in this week’s ruling. “No attempt was undertaken to engage with the appellant on a plan to promote the interests of the patients by curbing the thuggish actions and blatant disregard of the law by the unions… no constructive engagement was undertaken to assist a dedicated medical professional from the illegal conduct of unionised employees.”
Worse, they held, was the Department’s constant vacillation.
“In summary, there was a clear breach of procedural fairness, which requires engagement, not recourse to a façade. In this case, there was no attempt to find a solution save that [Walsh] was informed that he had no alternative save to accept one of the two options as unilaterally decided by [the Department].”
The unions had behaved disgracefully and effectively took the law into their own hands, the judges said – “a substantive cause of the disturbances that undermined and indeed compromised the interests of vulnerable patients.
“Their conduct which constituted a significant threat to the very idea of constitutional democracy and peaceful labour relations, cannot be countenanced (and)was the direct cause of the constitutional right to health being compromised.”
They said the Department should have responded to the disruptions at the hospital through legal mechanisms.
“It cannot be in the public interest to have preferred illegality over the obligation to provide efficient and effective health care to those in need. In addition a court cannot permit anarchy to be rewarded and couch it as being justified in the name of public interest. That is the route to the destruction of constitutional governance,” the Judges said.