Three years after Fort England CEO Roger Walsh was forced out by unions, the battle continues. Sue Maclennan reports.
While ousted Fort England CEO Roger Walsh awaited the outcome of an application for leave to appeal the February 2019 Labour Court ruling about his transfer from the hospital, the Department of Health threw a curve ball, saying he was dismissed.
Now, in addition to fighting his transfer, Walsh’s lawyer Justin Powers has also filed papers in the Labour Court challenging his dismissal.
What follows is a summary of Walsh’s legal battles with the Department of Health over the past three years.
July 2019 will mark three years since the Eastern Cape Department of Health made it clear they would not back Fort England CEO Roger Walsh’s bid to remain in his post at the Makhanda (Grahamstown) State Psychiatric Hospital. The Department bypassed the recommendations of two inquiries, sought to transfer him to another town and cut his salary by nearly half, in what a judge earlier this year described as “craven capitulation to the unlawful demands by the unions to have the applicant removed from his post”.
Walsh has effectively been away from Fort England Hospital since 18 July 2016. The, at the height of labour action to force his removal from the institution, Dr Litha Matiwane, Chief Director: Hospital Services instructed him not to return to the hospital. Initially, this was while Walsh negotiated with the Department over the terms of his return to work. Later, Walsh lodged an application in the Labour Court for his transfer from the hospital to be set aside. This was heard on November 19, 2018 and judgment was handed down on 19 February 2019.
But as Walsh waited through the 2018-19 festive season for the Labour Court to rule on his removal from the hospital two years earlier, the Health Department threw a curve ball. They sent him a letter saying he’d been dismissed for being absent without leave.
Now, in addition to appealing the February 2019 judgment that upholds his transfer to Bhisho, Walsh is also putting in a separate application to have this deemed dismissal set aside.
Below follows an account of Roger Walsh’s Labour Court battle to return to his position as CEO of Fort England Hospital:
1. The transfer case (19 November 2018; judgment on 19 February 2019);
2. The appeal application (March 2019);
3. The Health Department’s answering affidavit (April 2019);
4. What happens next?
A description of the Level 3 Specialised State Psychiatric Hospital follows. It has been included to show why this matter is significant, and why we’re reporting on it.
19 November 2018 (Judgment 19 February 2019)
1. The transfer case: ‘unlawful demands’
In the Labour Court in Port Elizabeth on 19 November 2018, Judge Andre van Niekerk heard Walsh’s application to have his transfer from Fort England Hospital set aside.
The Department of Health in 2016 instructed Walsh to leave his position as CEO in the Makhanda psychiatric hospital to take up the Bhisho-based position of Director: Forensic Services. The instruction followed three years of resistance to his appointment, during which, the Judge noted, union officials and members ensured he was “hounded out of his position”.
The Judge was unequivocal that the conduct of union officials and members was unlawful, and was scathing about the Department of Health’s suggestion that Walsh was accountable for the state of affairs at the hospital. However, he nevertheless upheld the Department’s decision to transfer Walsh, distinguishing between administrative justice, as defined in the Public Administration of Justice Act (PAJA) and legality, as defined in the Constitution.
Van Niekerk emphasised that he wasn’t ruling on whether the decision to transfer Walsh was correct, but whether it was rational in terms of the interests of the hospital’s staff and its patients. “The applicant’s parochial interests cannot outweigh what is in the interests of the broader public good,” Van Niekerk said in his judgment.
March 2019 (papers filed)
2. The appeal application: ‘public good’
Walsh has applied for leave to appeal the Labour Court judgment. The Department of Health has opposed the application.
Both Walsh and the Department of Health have focused on arguments around “the public good” in the latest court battle for which a date has yet to be set. Walsh is represented by Advocate John Grogan, briefed by Justin Powers of Neville Borman & Botha Attorneys; the Department by Vuyo Madokwe and Tembeka Ngcukaitobi, briefed by the State Attorney.
In his judgment, Van Niekerk wrote of Walsh’s exclusion from Fort England Hospital: “The facts disclose a relentless campaign to oust the applicant… that commenced almost as soon as the applicant assumed office. The applicant was hounded out of his position on account of the unlawful conduct of union officials and members. He has been subjected to a campaign of vilification, harassment, intimidation and assault.”
Of the Department, the Judge said, “Instead of reigning in the unlawful behaviour of the unions and union officials [and]supporting the applicant in his endeavours to introduce some semblance of orderly management to the hospital, the Department and the MEC had ultimately engaged in what can only be described as appeasement and acquiescence and ultimately, craven capitulation to the unlawful demands by the unions to have the applicant removed from his post.”
However, addressing the Labour Court in the application for leave to appeal, Walsh’s lawyers argue that his removal from Fort England in fact achieves the direct opposite of the public good.
The state psychiatric hospital caters for about 300 patients, “many of them committed by order of court and suffering from serious mental disorders”, the application states. As a result of the actions of the unions and the response of Department of Health officials, the application argues, “The hospital’s patients had to endure conditions in a lawless institution which compromised their constitutional right to health care.”
The main reason the Department of Health had decided to transfer Walsh was the fear that the unions would carry out their threat to render the hospital “ungovernable” if Walsh remained in his post.
“While, on the face of it, ensuring that a hospital is not disrupted may appear to fall within the parameters of the notion of ‘public interest’,” the application says, “… this leaves out of account the fact that the [Department] had means at its disposal to avert that threat – namely, to take disciplinary action against the errant employees engaging in unlawful conduct… as the Honourable Court found could and should have been done.
“Such action would indeed have been in the public interest. Using that notion to justify removing the Applicant from his post because of the unions’ thuggish tactics was not in the public interest.”
3. The Health Department’s answering affidavit: ‘moot point’
In their Answer submissions, the State Attorney responded that any rights now claimed by Walsh are moot because he is no longer a State employee. This is based on a letter dated 11 January 2019 from Health Superintendent General Dr Thobile Mbengashe, accusing Walsh of abscondment, and declaring him discharged from service.
Walsh’s lawyers made representations to the Health MEC saying that he’d been on sick leave for some of the periods named. For the rest, his absence had been by agreement with the State Attorney.
A letter signed by Health MEC Helen Sauls-August date 7 February 2019 disputes this and maintains Walsh absconded. It’s this deemed dismissal that Walsh’s lawyers will now contest in the Labour Court, on a date still to be set. This is in addition to the application for leave to appeal in the Labour Court about Walsh’s transfer.
The State Attorney maintains Walsh’s case claiming employee rights regarding his transfer is moot. Advocates for the State, Vuyo Madokwe and Tembeka Ngcukaitobi, nevertheless provide an item by item rebuttal of Walsh’s grounds for appeal in the Labour Court ruling.
In the application, Walsh’s lawyers focus on public interest arguments and the notion of a “rational decision”. So does the State Attorney in its rebuttal of Walsh’s grounds for appeal.
In its responding submission, the Department of Health says, “The applicant still labours under the impression that a transfer was a punishment. It was not. It was a reaction to the untenable situation that had developed at the hospital to which the applicant was also a contributor…” and “The case was not about whether the unions committed misconduct. It was about whether the transfer was rational or not.”
Walsh’s lawyers contest that the transfer decision was taken in capitulation to the unions’ demands. The State Attorney counters that the unions’ demands didn’t lead to the transfer, but only to the decision to institute an investigation.
4. What happens next?
Walsh’s attorney Justin Powers said they were still waiting to hear the outcome of the application for leave to appeal the transfer ruling.
Of the challenge to Walsh’s dismissal, Powers said the papers had been finalised and would be in the Labour Court.
ABOUT FORT ENGLAND PSYCHIATRIC HOSPITAL
Fort England Hospital in Makhanda (Grahamstown) is a Level 3 Specialised State Psychiatric Hospital providing mental health care services to population of the Eastern Cape and the rest of South Africa.
- FEH has 313 registered beds including general psychiatry, substance abuse treatment unit, forensic wards and the National Maximum Security Unit (49 beds).
- In 2012, FEH had 379 fulltime employees including 65 privately contracted security guards and 20 privately contracted garden maintenance staff. In September 2016 there were 385 full-time staff.
- FEH is the only State sector Substance Abuse Treatment Unit for adults in the Eastern Cape.