SUMMARY:

The applicant brought an application to review and set aside a condonation ruling. The commissioner found that no reasonable explanation for the delay had been proffered. Interpreting the provisions of Section 191(1)(b)(ii) of the Labour Relations Act, the 90-day period commences to run from an act or omission alleged to be an unfair labour practice and not from the date the parties failed to achieve internal resolution of the act or omission (dispute). A party seeking condonation must provide a detailed explanation for the delay as opposed to an excuse for the wrong interpretation of the legal provision. Applying the wrong legal interpretation and/or strategy does not amount to a proper and reasonable explanation.

The granting and refusal of condonation involve an exercise of true discretion. A Court of review may only interfere with the exercise of discretion if (a) wrong principles have been applied; (b) the exercise is capricious; (c) the exercise is tainted by mala fides; or (d) it has not been judiciously exercised. The review application had not been launched outside the prescribed six-week period. Condonation was not required in order to acquire jurisdictional powers. The Court dismissed the application and made no order as to costs.

BACKGROUND FACTS:

The facts relevant to the review application are as follows:

• The applicant was an employee of TUT and also a member of NTEU. The applicant applied for two promotional posts but was shortlisted for only one of them.
• Around February 2017, the applicant discovered that the post for which he was not shortlisted had been filled by another employee, in violation of the applicable procedures and requirements. This discovery led the applicant to lodge a formal grievance in April 2017.
• According to the applicable policy, the grievance process consists of three steps. Initially, at the first step, the application did not yield a satisfactory outcome. Consequently, the applicant escalated the grievance to the second step, where he alleged that the chairperson ruled in his favour, but TUT failed to implement the ruling.
• In response to the lack of implementation, the applicant proceeded to the third and final step. At this stage, a ruling was made that required TUT to provide reasons for not shortlisting the applicant for the relevant post and mandated the re-advertisement of the position internally within 20 days of the ruling, which was issued on 23 February 2019.
• Despite this ruling, TUT once again failed to implement it, prompting the applicant to refer a dispute to the CCMA, alleging an unfair labour practice in relation to promotion. This referral was made within 90 days of TUT's failure to implement the step 3 ruling.
• TUT contested the jurisdiction of the commissioner, arguing that the referral was made beyond the statutory 90-day period. In response to this challenge, the applicant received a formal ruling directing him to seek condonation due to the late referral.
• Subsequently, the applicant initiated an application for condonation, which led to the contentious ruling.

PRIMARY GROUNDS OF REVIEW

The primary grounds for review presented in the Labour Court were as follows:

1. Error of Law Regarding Section 191 (1)(b)(ii) Application: The applicant asserted that the commissioner committed an error of law by misinterpreting the provisions of Section 191 (1)(b)(ii) of the Labour Relations Act. According to the applicant, when these provisions are correctly applied, the 90-day prescribed period should commence from the date when the applicant became aware of TUT's failure or refusal to implement the findings from step 3 of the grievance process. The applicant argued that condonation was unnecessary under these circumstances.
2. Alternative Argument on Gross Irregularity: In the alternative, the applicant and their union contended that the commissioner had committed a significant irregularity in the exercise of their statutory discretion. This irregularity, they argued, stemmed from the commissioner's failure to consider material facts that could have explained the delay. Additionally, it was claimed that the commissioner neglected to assess the applicant's prospects of success in the matter.

These were the primary grounds upon which the review in the Labour Court was based, with a focus on the incorrect interpretation of Section 191 (1)(b)(ii) of the Labour Relations Act and the alleged gross irregularities in the commissioner's decision-making process.

LABOUR COURT’S EVALUATION:

Is the review application launched out of time (in the Labour Court)?

The Labour Court determined that the review application submitted to the Labour Court fell within the prescribed six-week period. Consequently, the court concluded that no condonation was necessary, and the review application was not considered to be delayed.

Did the applicant require condonation or not (at CCMA)?

The applicant and their union contended that, according to their interpretation of Section 191(1)(b)(ii) of the LRA, the 90-day period for initiating a dispute commenced from the date when the applicant became aware of TUT's refusal to implement the findings from step 3 of the grievance process.

However, the Labour Court disagreed with this contention, asserting that at the step 3 stage, what occurred was not the birth of a new dispute but rather the failure to resolve an existing dispute. It signified a deadlock where parties were unable to make progress in resolving a pre-existing dispute. Ordinarily, at this stage, another mechanism should have been employed to break the deadlock.

Furthermore, the court clarified that not every perceived unfair treatment of an employee constitutes an unfair labour practice under the LRA, as the LRA accommodates the constitutional right to strike. Thus, treating every work grievance as an unfair labour practice could hinder collective bargaining and impede power dynamics.

The applicant's complaint regarding TUT's conduct related to his promotion, and based on his own account, he became aware of this conduct in February 2017. Section 186(2)(a) of the LRA defines an unfair labour practice as involving unfair conduct by the employer concerning promotion. In this case, the act or conduct complained of was the failure to shortlist the applicant, which initiated the cause of action.

Logically, if the unfair labour act or conduct occurred when the applicant was not shortlisted, it predates the filling of the position and cannot happen once an employee discovers the post has been filled. Section 191(1)(b)(ii) of the LRA allows the 90 days to begin either from the date of the act or omission or from the date the employee becomes aware of it. If the act or omission was indeed TUT's failure to shortlist the applicant, it remained unclear from the applicant's submissions when TUT shortlisted the employees.

The Labour Court applied the principle of deemed knowledge or awareness, similar to Section 12(2) of the Prescription Act, stating that knowledge means possessing sufficient facts to suspect that there is fault. It found that the date when the applicant could have reasonably launched an inquiry into whether he was shortlisted for the other post was the starting point, and this was much earlier than February 2017.

Despite this, the applicant claimed to have become aware only in February 2017 when the post was filled. According to the second part of Section 191(1)(b)(ii), the 90-day period started running in February 2017, requiring the applicant to refer the dispute around May 2017.

By following the directive to apply for condonation, the applicant pre-emptively acknowledged the lateness of the referral. He never argued that the referral was not late; otherwise, he would have resisted applying for condonation.

Furthermore, the applicant was not obliged to go through the internal grievance process to resolve the dispute. If he saw value in the grievance process, he could have engaged in it within the prescribed 90 days. It remained unexplained why he took two months after discovering the issue to initiate the internal grievance process.

The Labour Court emphasized that the CCMA's jurisdiction to resolve a dispute was not nullified by the possibility of pursuing internal remedies. There was nothing in the LRA preventing the applicant and his union from timely referring the dispute to the CCMA.

In conclusion, the Labour Court determined that the applicant required condonation since he referred the dispute two years after becoming aware of his non-appointment.

Did the commissioner commit an error of law?

When a commissioner grants or refuses condonation, it entails an exercise of genuine discretion. Section 191(2) of the LRA stipulates that if an employee can demonstrate good cause, the Commission may allow the employee to refer the dispute even after the relevant time limit has lapsed.

In the context of labour disputes, a delay of two years demands a thorough and adequate explanation. Utilizing an incorrect legal strategy can never be considered a reasonable explanation.

The Labour Appeal Court decisively determined that when an explanation is inadequate, the prospects of success are irrelevant. The Labour Court affirmed that the commissioner applied this well-established principle correctly and found no fault in her exercise of discretion in this regard.

Furthermore, the Labour Court emphasized that when an explanation is required, it must pertain to the delay, and it must be made in good faith. Offering an excuse is distinct from providing an explanation. The applicant offered an excuse and relied on their incorrect interpretation of Section 191(1)(b)(ii) of the LRA. However, ignorance of the law is not a valid excuse. Parties are obligated to explain the delay factually, accounting for each day of the delay.

The Labour Court upheld the commissioner's judgment that the applicant failed to present a proper and reasonable explanation and deemed it a decision that any reasonable decision-maker could have reached.

FINDING BY THE LABOUR COURT

The Labour Court found that the irresistible conclusion to reach is that the review application was not filed beyond the allowable time limit. Additionally, the applicant required condonation, and he failed to furnish a comprehensive and accurate account of the excessively long two-year delay in processing what is essentially a labour dispute. Consequently, the application for review was destined to fail, leading to the dismissal of the review application by the Labour Court.

CONCLUSION

This judgement delved into the critical question of when an unfair labour practice should be brought to light and firmly established that it should be initiated when the act or omission giving rise to it occurs. The Labour Court elucidated several key principles:

• Firstly, the exhaustion of internal remedies is not a mandatory prerequisite, challenging the misconception that such avenues must be pursued before initiating an unfair labour practice claim.
• Secondly, the Labour Court emphasized the importance of providing a comprehensive and detailed explanation for any delay, emphasized that a general excuse is insufficient, and every segment of the delay, down to each day, must be meticulously accounted for.
• Thirdly, it was made unequivocally clear that the principle of exhaustion does not find automatic applicability in our legal framework, and particularly not within the realm of labour law. Each case stands on its own merits.
• Moreover, the Labour Court underscored that ignorance of the law cannot be cited as a valid excuse, especially when attempting to elucidate a period of delay in initiating an unfair labour practice claim.
• Lastly, it is emphatically stated that the mere failure of an employer to address a grievance or internal issue, such as a failure to make an appointment, does not inherently amount to an unfair labour practice.

This comprehensive analysis establishes a clear framework for understanding the timing and prerequisites for initiating unfair labour practice claims within labour law.

Link to Judgement of SAFLII: https://www.saflii.org/za/cases/ZALCJHB/2022/226.html

Seeking Justice and Healing: Navigating Birth Trauma and Medical Negligence

INTRODUCTION

The arrival of a new life is a time brimming with limitless optimism and eager expectation. Nonetheless, certain families find their excitement dampened by the troubling aftermath of birth trauma, a result of medical negligence casting a shadow over the joy of childbirth.

A JOY TINGED WITH SORROW

The arrival of a new child should evoke celebration, yet for specific families, it transforms into a path characterized by unanticipated trials. Birth trauma encompasses the physical injuries that might unfold during childbirth, frequently attributable to medical blunders or insufficient care administered by medical practitioners. These injuries possess the potential to create prolonged repercussions in the lives of both the child and their family, resulting in persistent physical, emotional, and financial challenges.

THE QUEST FOR JUSTICE

When confronted with birth trauma stemming from medical negligence, embarking on a legal course of action becomes an essential stride in the path towards justice. The endeavour to secure compensation for the suffering endured by both the mother and child due to medical negligence extends beyond mere financial recompense; it is a means of ensuring that those responsible are held accountable for their deeds.

WHAT IS BIRTH TRAUMA?

Birth trauma encompasses an extensive array of injuries that newborns can undergo throughout the process of childbirth. These injuries are diverse, ranging from fractures and nerve damage to brain injuries and beyond. Often, these complications stem from a variety of errors, including the improper utilization of medical instruments, insufficient monitoring, untimely implementation of necessary interventions, or a failure to promptly address warning signs. In instances where medical practitioners deviate from the expected standards of care, these injuries can have far-reaching consequences that influence a child's life trajectory and impose substantial burdens on both the child and their family.

UNRAVELLING MEDICAL NEGLIGENCE

Medical negligence materializes when healthcare providers neglect to uphold the acknowledged standard of care, resulting in harm to the patient. In the specific context of birth trauma, instances of medical negligence can manifest at numerous junctures, spanning the spectrum from prenatal care to postnatal care. Within this scope, a comprehensive array of medical professionals, including obstetricians, midwives, nurses, anaesthesiologists, and other vital members of the medical team participating in the birthing journey, may all contribute to such cases. These instances of negligence can encompass misjudgements, errors in medical interventions, insufficient monitoring, and neglecting established protocols, collectively having the potential to profoundly impact both the immediate health of the newborn and the long-term well-being of both the child and their family.

THE ELEMENTS OF A LEGAL CLAIM

Constructing a case for medical negligence demands the establishment of several pivotal components, each contributing to the comprehensive evaluation of the situation:

Duty of Care: In the realm of childbirth, healthcare providers bear the responsibility to administer competent and rational care rooted in recognized medical standards, extending this duty to encompass both the well-being of the mother and the child.

Breach of Duty: The crux of medical negligence surfaces when a healthcare provider falters in meeting the anticipated standard of care, veering away from established medical protocols and accepted practices.

Causation: Central to the argument is the requirement to substantiate that the breach of duty holds a direct link or significant contribution to the occurrence of birth trauma. This entails demonstrating that the injuries would not have arisen in the absence of the negligence in question.

Damages: Integral to the case's foundation is the presentation of tangible consequences resulting from the birth trauma. These consequences span across physical, emotional, and financial spheres, encompassing not only immediate medical expenses and ongoing treatment costs, but also the enduring toll of pain and suffering. Additionally, the diminished quality of life experienced by both the child and their family as a consequence of the trauma forms a crucial element in determining the extent of damages.

Collectively, the interplay of these elements constructs a comprehensive narrative essential to substantiating a claim of medical negligence in cases of birth trauma.

VARIETIES OF BIRTH TRAUMA

Birth trauma exhibits itself in a myriad of manifestations, each presenting distinct challenges that echo across the spectrum of medical and emotional repercussions. These diverse forms encompass a range of complexities, from head injuries stemming from the improper utilization of medical instruments to brachial plexus injuries arising from the intricacies of difficult deliveries. The enduring impacts of these injuries resonate deeply within the child's well-being, transcending the immediate context of childbirth to influence their developmental trajectory, quality of life, and overall health outlook. The multifaceted nature of birth trauma underscores the critical importance of meticulous and comprehensive healthcare practices during the birthing process, in order to safeguard against these potentially life-altering consequences.

PURSUING LEGAL RECOURSE

Families impacted by the complexities of birth trauma possess the inherent right to initiate legal proceedings, aiming to attain due compensation for the multitude of losses endured. The pursuit of a personal injury claim emerges as a critical avenue through which these families can navigate the challenging aftermath, striving to secure not only financial solace but also a measure of justice. This financial restitution serves as a pivotal resource, providing the means to cover an expansive array of needs crucial to the child's comprehensive recovery and well-being. These encompass not only immediate medical expenses but also encompass therapeutic interventions, essential assistive devices, and educational provisions tailored to the unique requirements posed by the trauma. By seeking such legal recourse, families endeavour to forge a pathway towards recovery, safeguarding their child's future prospects while holding accountable those responsible for the birth trauma's life-altering implications.

NAVIGATING THE LEGAL PROCESS

Foremost and of paramount importance is the imperative to conduct a thorough investigation to ascertain the origin of birth trauma or associated injuries, determining whether they are a result of medical negligence. The acquisition and preservation of hospital records emerge as a pivotal step, encapsulating a comprehensive record of the care dispensed across the prenatal, labour, and delivery phases. Such inquiries delve into intricate terrains, necessitating meticulous scrutiny of the matter's merits and the enlistment of an array of domain experts.

Upon the confirmation of negligence, the claimant is positioned to initiate formal legal procedures. If the occurrence of medical negligence unfolded within a state-run hospital, an integral step entails notifying the relevant state organ within the purview of Section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act (Act No. 40 of 2002) within a six-month window from the point of origin. It's important to note that missing this six-month deadline does not inherently preclude the claimant from pursuing legal action, as avenues for seeking condonation are available.

The legal proceedings subsequently set in motion can span over years in their entirety, encompassing diverse stages vital to the intricate process. Among these are the stages of pleading, wherein parties articulate their respective claims and defenses, and the stage of discovery, wherein pertinent information is disclosed. Central to this progression is the trial stage, wherein the factual and legal contentions are dissected and adjudicated.

The dynamics of legal proceedings are marked by their evolving nature, often punctuated by delays attributed to factors like uncooperative participation of involved parties or legal contentions. These obstacles contribute to the extended timeline that such legal processes can entail. The legal pursuit of justice, while complex, serves as a mechanism through which families can navigate the intricate realm of birth trauma, seeking not only accountability but also the compensation essential for the well-being and rehabilitation of those impacted.

FORGING A PATH TO HEALTH AND A BEACON OF HOPE

Birth trauma, stemming from instances of medical negligence, can etch profound imprints on the trajectory of both the child and their family's existence. Within this realm of adversity, the pursuit of legal recourse emerges as a potential avenue toward not only rectifying the wrongs but also securing compensation that can serve as a pivotal stepping stone for comprehensive healing. This journey towards justice encompasses not only accountability for the negligence but also the means to access essential resources that are instrumental in ensuring ongoing care for the child and an enhanced quality of life.

A nuanced comprehension of the legal process and the guidance of adept birth injury attorneys can be instrumental in helping families navigate the intricate landscapes of medical negligence cases. This expert guidance empowers families to chart a course through complexities, ultimately striving for the justice that befits their circumstances.

In this pursuit of justice and healing, Adendorff Theron Inc shine as beacons of hope. Drawing upon an extensive wealth of experience in matters related to birthing injuries, Adendorff Theron Inc has meticulously crafted a tailored legal strategy. This strategy encompasses a holistic approach, one that not only seeks justice but also prioritizes the effective and expeditious resolution of litigation. This approach is illuminated by the exploration of alternative dispute resolution methods, such as mediation or arbitration, which can expedite the attainment of resolution and redress.

The distinctive approach undertaken by Adendorff Theron Inc underscores their unwavering focus on seeking justice with both efficiency and effectiveness. This commitment is aligned with their aim to not only provide legal representation but to also serve as partners in a journey that strives for healing, restoration, and the realization of rightful compensation.

REACH OUT TO ADENDORFF THERON INC

Do you have reason to believe that you or a cherished family member has been impacted by medical negligence? Connect with Adendorff Theron Inc. to initiate an examination of your situation. Our cadre of skilled attorneys is perpetually prepared to provide support and navigate you through this journey.

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Adendorff Theron Inc: Your Guiding Light and Reliable Legal Ally.

THE REASONABLE DOCTOR

[A] INTRODUCTION

If a doctor's conduct is found to have fallen short of the standard that the law expects from a reasonable doctor in a particular field of medicine or expertise, considering the specific circumstances, that doctor will be deemed negligent. Put differently, professional negligence by doctors occurs when a patient is harmed because a doctor has not exercised the level of skill and care expected of a reasonably competent doctor in their respective field.

[B] DELICT

In most cases, a doctor may face a lawsuit under delictual liability, requiring the presence of elements of such liability. If these elements are indeed present, the doctor will be held responsible for the damages resulting from the negligence.

[C] STANDARD OF CARE

A doctor's conduct will be evaluated against a standard of reasonableness. When applying this standard to the medical profession, it entails the conduct expected of a reasonable medical practitioner given the specific circumstances of the case.

In the case of Van Wyk v Lewis 1924 AD 438, Wessels AJ remarked we should attempt to place ourselves in the exact position the surgeon was in during the specific operation and then ascertain if their actions were characterized by sensible caution or negligence. Moreover, in Michell v Dixon 1924 AD 519, the court determined that a medical practitioner is not obligated to exhibit the utmost level of professional expertise in their cases, but they are required to employ practical skill and care; negligence results in liability for ensuing consequences.

In R v Van der Merwe 1953 2 PH H 124 (W), Roper J noted that negligence, especially regarding a skilled profession like medicine, carries a distinct implication. A professional who practices a skill-based occupation holds themselves as possessing the essential expertise and commits to delivering services with reasonable skill and capability. This is the expected and undertaken obligation, entailing a skill level corresponding to the ordinary proficiency within their profession.

Ultimately, in Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA), Ponnan JA explained that deviation from the general skill and diligence exercised by peers in the same professional category would typically amount to negligence. A surgeon is held to the same standards as other professionals.

As pointed out, a medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ reasonable skill and care. The central criterion remains whether the practitioner utilized rational skill and care or if their conduct fell below the benchmark of a reasonably competent practitioner in their field.

[D] CONCLUSION

In conclusion, the concept of professional negligence within the medical field revolves around the pivotal idea that doctors are held to a standard of reasonableness in their conduct. This standard is a yardstick that measures a doctor's actions against the expectations of what a reasonable medical practitioner would do in a similar situation. When a doctor's conduct falls short of this standard and results in harm to a patient, it constitutes professional negligence.

This understanding emphasizes that a doctor's obligation isn't to achieve the pinnacle of professional excellence in every case, but rather to exercise a practical and reasonable level of skill and care in their practice. The legal framework surrounding delictual liability underscores the accountability that doctors face when the essential elements of negligence are present in their actions.

Key legal precedents such as the Van Wyk v Lewis case highlight the importance of placing oneself in the shoes of the medical practitioner, considering the circumstances they faced during a specific medical procedure. The Michell v Dixon case reinforces the notion that practical skill and reasonable care are the cornerstones of a doctor's responsibilities, underscoring the repercussions of negligence.

Moreover, the R v Van der Merwe case introduces the idea that practicing a skilled profession inherently implies a commitment to possessing and applying reasonable expertise. This parallels the insight from Goliath v MEC for Health, Eastern Cape, affirming that a surgeon, like any other professional, is subject to the standards of their peer group and is responsible for employing reasonable skill and care.

Ultimately, the prevailing theme is clear: the medical profession is held to a standard that demands competence and practical care, with deviations from this standard constituting negligence. As medicine advances and patient care remains paramount, the principles established by these legal cases serve as a critical guidepost for maintaining the integrity and accountability of medical practitioners.

CONTACT ADENDORFF THERON INC

Suspect that you or a loved one may have been a victim of medical negligence? Get in touch with Adendorff Theron Inc. We can help investigate your situation. If the medical practitioner(s) failed to meet the standard of care, Adendorff Theron Inc can support you in pursuing justice and the compensation you're entitled to.

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