Judges rule Roger Walsh’s removal from Fort England was unfair and slam EC Department of Health for threatening constitutional governance.
Ousted CEO of Fort England Hospital Roger Walsh must be reinstated in that position retrospectively from 20 October 2018 according to a Labour Appeal Court judgment handed down on Tuesday 30 March.
The judgment follows the Department of Health’s removal of Walsh from Fort England amid conflict at the institution, and then from the public service altogether. Walsh has engaged with the Labour Court over the past three years on both matters. The judges said Walsh’s removal was not in the public interest, and describe his treatment by the Department as “anything but fair”. In a strongly worded judgment they said the Department’s approach to the situation at the hospital was “the route to the destruction of constitutional governance”.
Walsh was appointed acting CEO of Fort England Hospital in August 2012 to manage the administrative challenges the hospital had at the time. Court documents describe a situation in which nurses were split from clinical staff, refusing to take blood on doctors’ instructions and refusing to interpret for them. Under a “chaotic” administration absenteeism was rampant, employees used hospital facilities to run their own personal businesses during working hours, security guards were used to do the work of nurses and many staff members were “inappropriately interacting financially with patients”.
When Walsh began to tackle these challenges he met strong opposition from within the institution and his original court documents detail a subsequent series of unlawful strikes and violent incidents from May 2013 through to July 2016.
Matters came to a head in 2016. First, in February, a court interdict was granted against the unions and their shop stewards from threatening, harassing and intimidating employees and approaching the hospital other than to work. Then senior officials from the Department of Health met with organised labour, union representatives and hospital management and unions demanded Walsh be removed. In July 2016, Denosa informed the hospital’s Labour Relations Officer they would forcibly remove Walsh and the rest of the hospital’s management team.
A labour law specialist appointed that year to conduct an independent investigation had found ‘no fault;’ with the management style of the hospital. While the workforce had withdrawn because management took decisions without consulting them, they were the kinds of decisions that didn’t require they be consulted in terms of the LRA.
Also in July 2016, 11 clinical staff members wrote to the Department highlighting the report and expressing strong concern over the situation at the hospital.
However, the Department first ordered Walsh to remove himself from the hospital for three weeks for the situation to calm down, then transferred him to a post at its head office in Bhisho. The Department said it was in the interest of the public and the hospital’s patients. His presence there was upsetting the unions, and this was resulting in instability at the institution, the Department said.
In October 2016, Walsh was offered two options for a transfer, but he said he would instead present a plan of action to ensure his successful return to Fort England. He was asked to guarantee that services would not be disrupted. In December 2016, the SG said he wasn’t averse to Walsh’s proposal, but was concerned that his plan didn’t “guarantee that the department would not suffer damage to personal property, injury to staff, disruption of services etc, all of which are not in the public interest.”
Through the Labour Court, Walsh challenged his removal from his post. The hearing was set down for 18 October 2018.
While this process was under way, however, the Department told him he was dismissed him on the basis he had been absent from his (new) duties in Bhisho.
This week’s Labour Appeal Court judgment ruled on Walsh’s purported dismissal and, in the process, his removal from the hospital in the first place.
In February 2019 Labour Court Judge Andre van Niekerk upheld the Department of Health’s decision to remove Walsh from Fort England Hosptial. Van Niekerk was scathing about how the unions had acted, labelling their behaviour “brutal and thuggish”. However, he held that the Department was entitled to make such a decision in the public interest.
”It does not follow that because the behaviour of the unions and their officials was unlawful and that this behaviour constituted a material element of the decision to transfer the applicant, the applicant’s transfer is necessarily invalid… Beyond the applicant’s self-interest… [the decision is]not irrational,” Judge Van Niekerk ruled.
But this week’s order challenged that reasoning. Alongside how the Public Service Act and Labour Relations Act should be applied, appeal judges Davis JA, Coppin JA and Molefe AJA closely examined the definition of public interest.
In their judgment, they referred to observations in court documents by both Advocate John Grogan (Walsh’s lawyer) and Judge Van Niekerk.
Grogan had said it was patently absurd for government officials responsible for the health of patients in the Eastern Cape to demand that Walsh should guarantee that union members not commit further unlawful acts. Judge Van Niekerk had observed that it was “rich” of the responsible department to seek to hold Walsh responsible.
“The evidence reveals engagements between [Walsh and the Department were anything but fair,” the Judges say in this week’s ruling. “No attempt was undertaken to engage with the appellant on a plan to promote the interests of the patients by curbing the thuggish actions and blatant disregard of the law by the unions… no constructive engagement was undertaken to assist a dedicated medical professional from the illegal conduct of unionised employees.”
Worse, they held, was the Department’s constant vacillation.
“In summary, there was a clear breach of procedural fairness, which requires engagement, not recourse to a façade. In this case, there was no attempt to find a solution save that [Walsh] was informed that he had no alternative save to accept one of the two options as unilaterally decided by [the Department].”
The unions had behaved disgracefully and effectively took the law into their own hands, the judges said – “a substantive cause of the disturbances that undermined and indeed compromised the interests of vulnerable patients.
“Their conduct which constituted a significant threat to the very idea of constitutional democracy and peaceful labour relations, cannot be countenanced [and]was the direct cause of the constitutional right to health being compromised.”
They said the Department should have responded to the disruptions at the hospital through legal mechanisms.
“It cannot be in the public interest to have preferred illegality over the obligation to provide efficient and effective health care to those in need. In addition a court cannot permit anarchy to be rewarded and couch it as being justified in the name of public interest. That is the route to the destruction of constitutional governance,” the Judges said.
The appeal bench was unanimous in ordering that Walsh be reinstated as CEO of Fort England from 18 October 2018.
“It is difficult to conceive of a better cause to reinstate the appellant than the finding that the respondents had acted egregiously in seeking to apply s17(3) of the PSA, thereby allowing them to escape dealing with sustained illegality at a facility under their control,” the judges said.
John Grogan SC and advocates Sheldon Magardie and Sarah Sephton appeared for Walsh in the appeal. They were briefed by Neville Borman & Botha Attorneys.
For the Superintendent-General of the Department of Health and the Health MEC, Tembeka Ngcukaitobi SC and Advocate Vuyo Madokwe were briefed by the State Attorney.
Speaking to GMDirect soon after the judgment was handed down, Walsh said he was relieved – “ but mainly sad for the patients as I fear Fort England and mental health care in the area has been destroyed”.
Walsh’s attorney Justin Powers said, “It’s great news and we’re thrilled. This has been a really tumultuous period and so it’s been very taxing for everyone involved. We’re pleased that now the process has run its course, we have been vindicated.”
Complicating Walsh’s return is the fact that a new CEO has been appointed to the hospital in the meantime.
“However, we have written to the Department of Health, asking them to confirm when and where [Walsh] should report for duty.”
READ THE FULL LABOUR APPEAL JUDGMENT HEREWALSH Labour Appeal Court judgment 20210330