Healthcare services disrupted as Nehawu wage strike

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Healthcare services disrupted as Nehawu wage strike

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Bruce Whitfield: 702 Drive. The Nehawu strike at hospitals countrywide is producing all sorts of consequences. On the one hand, we heard earlier today from health Minister Dr. Joe Phaahla that in government's view, four people have died as a consequence of strike action. The union has pushed back and has said that they are not responsible for what's happened at all, and that in fact there are so many other factors at play:

• The fact that government has not negotiated in good faith;
• The fact that government has not invested as they should, both in staff and in the products that they need to run health facilities effectively.

And all the while tragic stories continue to come out.

This, from the witness down in KwaZulu-Natal, a 30-year-old pregnant woman, Thandokuhle Mlotshwa, was allegedly denied medical assistance at various healthcare facilities. Earlier this week, she was hit in a hit and run, both her unborn child and herself died after she was left unattended on a hospital stretcher. As these things unfold, there will be many, many conflicting stories as to who is responsible for what. How does the law start sifting through this?

Aadil Patel is National Practice Head in the employment department at the law firm Cliffe Dekker Hoffmeyr and joins us now on 702 Drive. A very good afternoon to you, and thank you so much for your time. Is there a risk that if you can attribute blame to a wide range of actors, then anyone who's looking for redress may find that, because everyone's to blame, nobody in fact is in practice blamed at all.

Aadil Patel: Thank you for welcoming me to your show. What you have currently, based on the labour court judgment as well as the application to immediately enforce the labour court judgment despite Nehawu trying to lodge an application for leave to appeal, is the status of the strike is one that is unprotected.

In terms of the Labour Relations Act, they provide various remedies to an employer where there is a strike that is unprotected and one of those are Just and Equitable Compensation. Obviously you would need to prove the compensation. An individual who is able to illustrate that he or she has suffered loss as a result of the strike, may lodge a claim for damages in the high court against a particular individual who is on strike or the trade union. But while these are potential claims that you may lodge from an evidentiary perspective, that is going to be your challenge. So government would have to show insofar as it wishes to lodge a claim against the trade union as a result of the unprotected strike actions, that it has suffered loss and what is just and equitable. And so too, a member of the public who has suffered some sort of loss and wishes to lodge a claim in the high court, would have to identify, the perpetrator, would have to show that he / she has suffered some sort of loss and that the loss was directly attributable to the unprotected Industrial Action.

And I think that while the claims in law are valid and may potentially be instituted, I think the difficulty is always an evidentiary one. And that's what happens in these sorts of matters, like strike violence, strike Interdicts and the like, is:

1. The identification of who the perpetrators are;
2. Whether the union or the employer organization has condoned their behavior or encouraged their behavior; and
3. What is the nature of their conduct.

Bruce Whitfield: So if I could come in there, Mr. Patel, and ask you this; Would the fact of the strike being unprotected in and of itself make people culpable, or would you have to prove another set of actions or failures to act, that led to either death or serious injury or any other kind of loss?

Aadil Patel: No. The mere fact that the strike is unprotected doesn't automatically entitle you to relief. You would still need to show that you've suffered some sort of loss. So under the Labour Relations Act, you would need to show, if you want compensation, you would need to prove Just and Equitable Compensation, taking a host of factors into account. Among those are:

• The nature of the strike;
• What was the role of the employer in ensuring that the strike does not happen;
• What steps did the employer take to protect employees;
• The duration of the strike, and
• The nature of the misconduct.

So it's not that easy. Because the strike is protected I'm automatically entitled. It's a long arduous process. South Africa has precedent where employees and trade unions who have embarked on this sort of action, successful civil claims or compensation claims have been instituted, but it's certainly not a quick fix.

Bruce Whitfield: Thank you so much, Aadil Patel. So lots to consider there. Lots for us to explore. We'll pick up on that story in the coming days. He is National Practice Head working at the law firm Cliffe Dekker Hoffmeyr. It's half past five.

EWN Business. Little later than we should, but important. Nonetheless, the market closed. Bruce Whitfield.