Durban - Government “ineptitude” was the cause of the KwaZulu-Natal Health Department - facing a wildcat strike at some hospitals - hiring some of its own striking nurses who were moonlighting for a recruitment agency contracted to assist during the crisis.
“The department should have foreseen that some nurses would take advantage and exploit the situation,” Durban High Court Judge Jerome Mnguni said on Thursday, absolving the recruitment agency of any blame and ordering the department to pay its bill, almost R1 million including costs and interest.
The agency, A 24, based in Cape Town, was contracted by the Health Department to supply emergency nursing staff in August 2010 when the strikes broke out at several hospitals, including Mahatma Gandhi Memorial in Phoenix, disrupting services.
Some time later, the department drew up a list of those provided by the agency and matched it against those already employed by the provincial Health Department.
The list was long and the department withheld payment.
The agency sued, serving papers in 2012, and the matter came before Judge Mnguni this week when advocate Paul Tredoux, for the agency, argued that there was no legal basis to withhold payment.
“It is common cause that there was a strike, it is common cause there was an agreement and within a matter of hours, the agency had nurses on site,” he said.
His opponent, Morgan Chetty, argued that the contract should not be upheld because it was “against public policy”.
“There was a crisis. The department was in fix,” he said.
While conceding that the contract did not say anything about the issue of government-employed nurses, he said the agency should have made sure those they recruited were not employed by the state.
“It is the rule that people should not moonlight without permission,” he argued.
But Judge Mnguni said that law was between employer and employee and had nothing to do with the agency or its contract with the department.
He said the department had also not put up any evidence showing that the nurses in question did not have permission to moonlight.
He also criticised the fact that the department, while complaining about “wasteful expenditure”, had done nothing to discipline or recover any money from the nurses concerned.
“There is evidence that the department attempted to take action but was threatened by the unions. It seems this (withholding of money) is intended to appease the unions at the expense of the agency.”
The judge noted that the “no-moonlighting rule” was introduced just before the strike in June 2010 and was “unique to KwaZulu-Natal”.
“I did not hear anyone argue that the agency was aware of this rule… and anyway, the contract says nothing about it. The contract does not offend public policy. There is nothing wrong with it. There is just a lacuna,” he said.
“It must also be noted that there was evidence that management were given all the relevant information about the recruited nurses, it had the necessary machinery to verify who they were, but they did not do so,” he said, granting judgment against the department for R906 500, plus interest and legal costs.
The Mercury