Western Cape health department in R28m court battle with doctors
In the appeal of the 13 year-old case, Health MEC Nomafrench Mbombo argues that the 50 doctors are not entitled to receive the allowance because it is only payable to public service employees and the doctors are employed by UCT and Stellenbosch University and as such fall outside the registered scope of the bargaining council.
However, in their affidavit opposing the MEC’s appeal, the doctors, led by first respondent, retired principal specialist André Coetzee, maintained that they are entitled to the allowance because they all hold the posts of principal and chief specialists at the relevant public hospitals.
As such, they claim, they fall within the express scope of the collective agreement, as they are “designated health professionals working in public sector hospitals”. The doctors submit that the wording of the collective agreement is clear and unambiguously indicates that the allowance is to be paid by the provincial departments of health to all principal and chief specialists without exception.
The scarce-skills allowance in question was in the amount of 15% of the annual salary earned by the doctors and was payable to designated employees appointed on a full time basis. The allowance was backdated to July 1, 2003, (the implementation date) and remained in force until June 30, 2009, when it was replaced by a new remuneration model (the occupation-specific dispensation) which the respondents are paid as part of their remuneration.
When the issue first surfaced when the provincial government failed to pay the allowance, Coetzee and other professors at Stellenbosch referred the dispute to the bargaining council, which dismissed the referral on the grounds that the council did not have jurisdiction, because the claimants were employed by the university and not by the department of health.
Unbowed, the doctors then took their claim to the Labour Court which decided that they were indeed entitled to the allowance. The provincial government then took the matter to the Labour Appeal Court where three judges agreed with the lower court that the respondents were indeed entitled to the allowance.
It was then that the MEC took the matter to the Constitutional Court where it will be heard on November 14.@MwangiGithahu