Voluntary commuted overtime: Invalid reason dismiss

SAMA obo Dr Lamb v PHSDSBC (Dept of Health & Unisa) (JR2854/12) [2016] ZALCJHB 242 (8 July 2016) per Jackson AJ

The labour court reviewed and set aside an arbitral award and fully reinstated the doctor with retrospective effect to 27 July 2010 as a registrar in the Anaesthesiology Department at the University of Pretoria’s Steve Biko Hospital.  A refusal to work voluntary ‘commuted overtime’ could not be a valid, let alone a fair, reason to dismiss him summarily.  The arbiter had failed to appreciate that the only issue related to the reason and process relating to the dismissal and not the fact of summary dismissal, which the parties had not disputed.

LC summary:

Review application in which Second Applicant challenged the arbitrator’s ruling that he had failed to establish his dismissal in circumstances where the dismissal was common cause between the parties.   Second Applicant effectively summarily dismissed without any hearing having taken place prior to his dismissal.  Second Applicant having resigned from commuted overtime but not from his employment with the Third and Fourth Respondents.  Second Applicant’s dismissal was also substantively unfair as his contract of employment did not oblige him to perform commuted overtime.  Moreover, the Third Respondent’s circulars regarding commuted overtime clearly make such overtime voluntary.  It was also common cause between the parties that the Second Applicant’s training period could have been extended should he have elected not to work commuted overtime.  Second Applicant’s dismissal was accordingly both procedurally and substantively unfair.

Excerpts

[1]     This is an application to review an arbitration award of the Second Respondent in which he found that the Second Applicant had failed to establish his dismissal. The Fourth Respondent, the University of Pretoria, was joined to the proceedings by virtue of an order of this Court on 12 August 2014 as the Second Applicant’s appointment was a joint appointment between Third and Fourth Respondents.

[2]     The facts of the dispute between the Second Applicant and Third and Fourth Respondents relate to Second Applicant’s decision to resign from what is termed commuted overtime or “COT” and what impact that had on his employment with the Third and Fourth Respondents.

[3]     It appears to be common cause that Second Applicant’s withdrawal from COT was not accompanied by any resignation from his employment with Third and Fourth Respondents and indeed Second Applicant appears to have made it clear to Professor Rantloane (the Head of the Anaesthesiology Department in the School of Medicine at the University Pretoria and Chief Specialist at Steve Biko Academic Hospital) that he had no intention of resigning from his employment.

[4]     Nonetheless, on 27 July 2010, Second Applicant was issued with a letter of termination ostensibly on the basis that the Second Applicant refused to perform COT.