Cape Town – After a decade-long battle, 50 doctors have claimed victory over the provincial health department after
the Constitutional Court dismissed with costs the department’s leave to appeal an order to pay scarce skills allowances.
The 15% allowance is an annual salary earned by the doctors, and is payable to designated employees appointed on a full-time basis.
In 2006, the department failed to pay the allowance, and the doctors employed by UCT and Stellenbosch University, and working at public hospitals as principal and chief specialists, took the case to the Labour Court.
The court decided that they were entitled to the allowance in terms of a collective agreement concluded within the Public Health and Welfare Sector Bargaining Council (PH&WSBC).
The department took the matter to the Labour Appeal Court, which upheld the appeal, and held that the Labour Court did not have the jurisdiction to hear the matter.
The doctors then brought a review application to the Labour Court and the parties later agreed to refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA).
The CCMA held that the respondents were employees within the public service and were entitled to the scarce skills allowance.
According to reports, the department argued that the doctors were not entitled to receive the allowance because it was only payable to public service employees, and the doctors were employed by UCT and Stellenbosch University and fell outside the registered scope of the bargaining council.
They also argued that the doctors were not members of any trade union, which was a signatory to the PH&WSBC agreement.
The department then turned to the Constitutional Court, which found in the doctors’ favour.
In a unanimous judgment the Constitutional Court held that the respondents were members of a registered trade union, which was a party to the agreement and that it was clear from the wording of the agreement that the scarce skills allowance was negotiated for the direct benefit of those doctors.
“The applicant initially denied that the respondents were employees of the department, but later changed and contended that ‘at the very least (they) were co- employees of the department’.
“The undisputed evidence reveals that the respondents are employees of the department on the fixed establishment, and thus qualify to be characterised as public servants,” the judgment read.
“The application lacks reasonable prospects of success, and the interests of justice thus militate against the granting of leave to appeal. There is no reason why costs should not follow the outcome,” it said.
Provincial health spokesperson Mark van der Heever said: “We will study the judgment with our relevant legal and labour relations team.
“Only once we have studied it
will we be in a position to comment.”