The National Union of Public Service and Allied Workers (NUPSAW), with the majority members at Sarah Fox Children’s Convalescent Hospital, is in the process of lodging a formal dispute with the Commission for Conciliation, Mediation and Arbitration (CCMA), alternatively to also consider applying for an urgent court interdict against the Department of Health.

This follows the Western Cape Department of Health’s decision to terminate funding to the institution, resulting in all NUPSAW members being faced with the termination of employment due to the lack of management and to an ineffective structure that was in operation at this hospital for more than three years.

The service in question is of significant public interest. Patients are referred from various public hospitals from over the province of the Western Cape for treatment and care at the Non-Governmental Organisation (NGO) Sarah Fox CC. The treatment ranges from rehabilitative care to assist with the gradual recovery of a child’s health and strength after an illness or injury and in some cases palliative treatment focusing on relief from the symptoms of a terminally diagnosed child to improve the quality of life for the patient as well as for the family.

A wide majority of patients is from disadvantaged communities and the institution is also situated in a disadvantaged community. Sarah Fox C.C has rendered this service free of charge for more than 50 years. The transfer of this service to another service provider could lead to a repeat of the Life Esidimeni tragedy and patients could lose their lives because they are so fragile and dependent.

During the three years that the Department funded the hospital, the Department even went on to appoint one of their representatives to manage the institution and at a later stage withdrew that representative which makes it clear that the Provincial Department was well-aware of the maladministration under which the hospital was operating. However, despite the crisis, they continued to allocate funds to the institution.

The abrupt termination of the funding of the hospital not only led to the termination of contracts of employment but also to patients who will be left more vulnerable

On 12 July 2018 the Western Cape Department of Health announced that it will not be able to allocate funding to the institution for the provision of a child intermediate care service for the 2018/2019 financial year.

It was said that it lacked submissions that were vital as per funding requirements and therefore did not pass the initial adjudication screening.

Sarah Fox is a Non-Governmental Organisation (NGO) rendering health and palliative care services outsourced by the Department of Health to Sarah Fox Hospital. The employees rendering these services are appointed by the Sarah Fox Hospital under the guidance and supervision of the Department of Health.

100% of the service rendered by Sarah Fox Hospital is derived from referrals from public hospitals under and by the Department of Health and more than 90% of the funding is from the Department of Health.

Therefore, the termination of funding to the institution will affect patients as well as employees.

This disastrous and inconsiderate termination of funds has implications on employees. Some of the employees were selected and recruited by the Department itself and some have 30 to 40 years of service. The Department made no mention of retrenchments as per section 189 of the Labour Relations Act. (See Annexure A)

The Department only stated that the Sarah Fox Board should expedite the termination of contracts of employment of staff by the end of August 2018.

The impact of the dismissals would be enormous especially with regard to the Department not taking into consideration the retrenchment benefits or the security of jobs via a transfer.

NUPSAW proposed a way forward, namely that the Department of Health:
• Put on hold the decision to terminate the funding as that would lead to the institution not being able to render the services.
• The Department to reinstate the funding immediately.
• Establish a new interim governing structure that will be assigned to resume the responsibility of running the Sarah Fox C.C Hospital.
• Allow a proper consultative approach and intervention from various role players including the National Department of Health and Ministry
• Put on hold the intended changes until an agreement on the future of the service is reached.

NUPSAW members at the facility have embarked on peaceful lunch time demonstrations in an effort to highlight their plight to the public at large. We call on all Progressive Organizations of Civil Society and the public at large to support the struggle of the Sarah Fox workers to secure the continuity of the services rendered at the Hospital and to continue the Fight against Job Losses.

For more information:
Provincial Office Manager: Western Cape
Omar Parker
084 448 7732

Issued by
Media Office
Head Office, Pretoria
082 455 2215

Annexure A : The Section 189 Retrenchment Process in Terms of the Labour Relations Act.

ANNEXURE TO PRESS RELEASE ON SARAH FOX HOSPITAL

Section 189 of the Labour Relations Act:

THE SECTION 189 RETRENCHMENT PROCESS IN TERMS OF THE LABOUR RELATIONS ACT
Section 189 of the Labour Relations Act (“LRA”) permits employers to dismiss employees for operational requirements. These are defined as requirements based on economic, technological, structural or similar needs of the employer.
An employer who employs 50 or less employees are subject to the process set out in section 189 of the LRA, which sets out the procedural and substantive obligations placed on the employer to maintain a fair retrenchment process.
The following is a high-level summary of the prescribed retrenchment process:

1. Consultation
 
Like all dismissals, retrenchments must be both procedurally and substantively fair. Section 189 of the LRA requires all consulting parties to reach consensus on the various matters (specified below).
 
The LRA requires that consultation must take place when the employer contemplates retrenchment. The consultation is a process and not a once-off meeting.
Section 189(1) of the LRA provides that, before retrenching, employers must consult any person whom the employer is required to consult in terms of any collective agreement that may be in force. If there is no collective agreement, meetings should be held with all employees that could be affected by the retrenchment.
 Section 189(2) of the LRA states that the consulting parties must attempt to reach consensus on the following matters:
 The possibility of avoiding the dismissal i.e. alternatives to dismissal;
• Appropriate measures to minimize the dismissals;
• Measures to change the timing of the dismissals;
• Appropriate measures to mitigate the effects of retrenchment;
• The method for selecting the employees to be dismissed; and
• Severance Pay.

2. Notification of Retrenchment

The LRA provides for the disclosure of certain information by the employer on matters relevant to the consultation. Although the matters, in respect of which information for the purposes of consultation is required, are specified in section 189(3) of the LRA, the list in that section is not a closed one. If considerations, other than those that are listed, are relevant to the proposed dismissal or the development of alternative proposals, they should be disclosed to the consulting party.
Section 189 (3) of the LRA requires the employer to disclose in writing to the employees or their unions (where applicable) all relevant information including but not limited to:
• The reasons for the Retrenchment
• Alternatives to dismissal that were considered and the reasons why they were rejected
• The number of employees likely to be affected
• Proposed method of selection
• Severance pay
• Assistance that the employer will be offering
• Possibility of future re-employment
The notice will also serve as an invitation to consult between the parties.

3. Opportunity for feedback

The employer must allow the affected employee the opportunity to make representations in relation to the proposed retrenchment, oral or written. If the employee makes representations in writing, the employer must respond in writing.
 
4. Criteria for selection

Section 189(7) of the LRA provides that employers may select employees to be retrenched according to the criteria they have agreed upon by the consulting parties. If no criteria have been agreed upon, that the selection must be fair and objective, the LIFO (“last in, first out”) principal is often applied but is not the only principal.
 
5. Notices of termination

The employer must issue notices to the employees, who have been selected to be retrenched, after the consultation process has been completed.

6. Severance pay

Employees are entitled to receive severance pay only if they are retrenched for operational requirements. The requirements regarding severance pay are set out in section 41 of the Basic Conditions of Employment Act (“BCEA”). Section 41 of the BCEA provides that an employer must pay an employee who has been dismissed for operational requirements “severance pay equal to at least one week’s remuneration for each completed year of service with that employer”.
 
7. Payments

 The employer must pay the retrenched employee the following payments:
• Severance pay;
• Any outstanding leave due (up to date of dismissal); and
• Notice pay (either in terms of the BCEA or as per employment contract).

The Constitution of the Republic of South Africa requires fairness to be the compass of these processes