ATC190327: Report of the Select Committee on Petitions and Executive Undertakings on the Hearings of the Sigogo Petition, held on 08 November 2018, 28 February 2019 and 20 March 2019, at Parliament, as adopted on 27 March 2019
REPORT OF THE SELECT COMMITTEE ON PETITIONS AND EXECUTIVE UNDERTAKINGS ON THE HEARINGS OF THE SIGOGO PETITION, HELD ON 08 NOVEMBER 2018, 28 FEBRUARY 2019 AND 20 MARCH 2019, AT PARLIAMENT, AS ADOPTED ON 27 MARCH 2019
The Select Committee on Petitions and Executive Undertakings (Committee) having considered the Sigogo Petition (“petition”), referred to the Committee by the Chairperson of the National Council of Provinces (NCOP), on 7 September 2018, for its consideration and resolution, reports as follows:
Prior to the referral of the petition to the Committee, the Chairperson of the NCOP first referred the subject matter of the petition to the Public Service Commission (PSC) for investigation. On 3 May 2018, the PSC submitted an investigative report PSC Report) to the Chairperson of the NCOP. However subsequent to the release of the PSC Report, the petitioner again submitted a petition to the NCOP averring that aspects of the report are false and that a proper investigation was not conducted by the PSC.
The petitioner, Mr Olwethu Sigogo, submitted the petition in his capacity as a representative of the National Education Health and Allied Workers Union (Nehawu) of the Khayelitsha District Hospital (KDH or Hospital) Constituency. In the petition, he contends, that the findings of the PSC Report are incorrect. The complaints relate to inter alia the freezing of posts, irregular appointments, absence of employment equity and mismanagement of funds at KDH.
The petitioner requests the intervention of the NCOP in resolving the complaints he raises in the petition. The petition states that prior to seeking the intervention of the NCOP, the petitioner had approached Management of KDH, the Office of the MEC of Health in the Western Cape Province, the National Department of Health, and the PSC in the Western Cape Province for assistance in addressing the complaints.
2. HEARING ON THE PETITION
The Committee, held a total of three hearings on the petition at Parliament. A primary purpose of these hearings was to afford the petitioner as well as the relevant stakeholders the opportunity to make first hand oral submissions, to the Committee, on the petition.
3. FIRST HEARING ON THE SIGOGO PETITION
The first hearing on the petition was held on 08 November 2018 at Parliament.
3.1 Committee Members and Officials
The following Committee Members attended the hearing on the petition:
3.1.1 Hon D L Ximbi, ANC, Western Cape (Chairperson of the Committee); and
3.1.2 Hon G G Oliphant, ANC Northern Cape
The following Committee Members tendered their apologies for being unable to attend the hearing on the petition:
3.1.3 Hon M J Mohapi, ANC, Free State;
3.1.4 Hon H E Mateme, ANC, Limpopo;
3.1.5 Hon J M Mthethwa, ANC, Kwa-Zulu Natal;
3.1.6 Hon S G Mthimunye, ANC, Mpumalanga;
3.1.7 Hon B Engelbrecht, DA, Gauteng;
3.1.8 Hon G Michalakis, Free State; and
3.1.9 Hon T Mokwele, Northern Cape
The Committee Members present at the hearing on the petition were supported by the following Committee officials:
3.1.10 Mr N Mkhize, the Committee Secretary;
3.1.11 Dr M Gondwe, the Committee Content Advisor;
3.1.12 Adv T Sterris, the Committee Researcher;
3.1.13 Mrs M Cassiem, Intern, Committee Section;
3.1.14 Mr M Nkwali, Researcher, Office of the NCOP Chairperson; and
3.1.15 Ms F L Lombard, Parliamentary Communications Officer.
The following representatives of the Nehawu Khayelitsha District Hospital Constituency appeared before the Committee during the hearing:
3.2.1 Mr O Sigogo, Branch Chairperson;
3.2.2 Dr M Witbooi, Secretary;
3.2.3 Mrs E S Maloi, Deputy Provincial Secretary;
3.2.4 Mrs B A Relare, Treasurer;
3.2.5 Ms B Saleni, Shop steward;
3.2.6 Ms S Yamiso, Shop steward;
3.2.7 Mr S Jiya, Shop Steward;
3.2.8 Mr A Ernstzen, Nehawu Member and Witness; and
3.2.9 Ms T Konile-Mdekazi, Nehawu Member and Witness
The following representatives of the Cape Metropolitan Health Forum appeared before the Committee during the hearing:
3.2.10 Ms D O Kiewies, Chairperson of the Cape Metropolitan Health Forum.
The following representatives of the Department of Labour appeared before the Committee during the hearing:
3.2.11 Ms A Moiloa, Acting Director General; and
3.2.12 Adv. M T Ntleki, Legal Advisor
The following representatives of the Public Service Commission appeared before the Committee during the hearing:
3.2.13 Dr M S Leballo, Commissioner;
- Mr L J Goosen, Commissioner; and
- Mr. P Rockman, Western Cape Provincial Director.
4. SUBMISSIONS BY THE PETITIONER
4.1 Submissions by the Petitioner, Mr O Sigogo
Mr Olwethu Sigogo (Mr Sigogo), the petitioner explained that he submitted the petition in his capacity as Branch Chairperson of the Nehawu KDH Constituency. He began his submissions by highlighting that Nehawu had been participating at an institutional level in a forum known as the Institutional Management Labour Committee (IMLC). The IMLC is a platform intended to facilitate discussions on all matters affecting the staff of the Hospital and further serves as a communication forum discussing critical matters regarding the management and governance of KDH. He further submitted that Nehawu has been participating in the IMLC since 2012 up until early 2017, wherein the IMLC collapsed due to the fact that the KDH management was no longer eager to engage with Nehawu anymore. The forum was a critical structure that allowed Nehawu to discuss a number of issues with the management of KDH.
Further in his submissions, Mr Sigogo informed the Committee that he will take it through the issues of the IMLC; freezing of posts and irregular appointments; and employment equity and then allow Dr Witbooi, the Nehawu KDH Constituency Secretary to outline the rest of the issues and supported by submissions from the witnesses.
4.1.1 The Institutional Management Labour Committee
Mr Sigogo informed the Committee that NEHWU is and has been the majority union at KDH and in terms of the Organisational Rights Agreement, Nehawu (as a result of it being a majority union) has the power to continue with the IMLC. In June 2017, the management of the Hospital raised a procedural issue to the effect that Nehawu can no longer participate in the IMLC and discuss issues that are affecting the staff and patients. This was concerning as other unions are not represented on the IMLC and Nehawu was the only union that was at the forefront in the fight with management on the IMLC.
With regards to the IMLC, the Mr Sigogo further informed the Committee that there was IMLC related training that was organised by management and during that training it was clarified that Nehawu has the right to engage with management, on its own, by virtue of it being the majority union at KDH. Furthermore, in 2017, Nehawu embarked on a picket and on the day of the picket, members of Nehawu were intimidated by management of KDH. Notwithstanding this, the picketing was a success and resulted in a memorandum being presented to and received by the Head of the Substructure Office, Dr M Phillips. Before the picketing, Nehawu had invited the MEC for Health in the Western Cape (MEC) to come and collect the memorandum but the MEC delegated Dr Phillips to collect it on her behalf as she could not personally receive the memorandum. The memorandum was later handed over to the Chief Director of Metro District Health Services, Dr G Perzez (“Dr Perzez”). Dr Perzez, subsequently, invited Nehawu to a meeting where both parties could go through the memorandum and address the issues that raised in the memorandum three weeks after the memorandum was received by Dr Phillips, and when members of Nehawu were already complaining and being intimidated by the KDH management after complaining about quality of care at KDH.
According to Mr Sigogo, one would have expected that the KDH Skills Development Committee and its Sub-committee (i.e. KDH Nurse Training Co-ordinating Committee) could be entrusted and tasked to intensify the training and skills development of staff. On the contrary, over the past year Ms Mashaba (the current Acting Chief Executive Officer of the Hospital) and Mr Plaatjies (Assistant Manager Nursing) have tried to subvert the efforts of the Skills Development Committee. Further, after being appointed Acting CEO of KDH, Ms Mashaba intensified her efforts to subvert the Nurse Training Co-ordinating Committee and the KDH Skills Development Committee. The motivation behind their behaviour, in this respect, can only be attributed to the abuse of power, abuse of public funds, nepotism because this is not new to them. The very existence of the Nurse Training Co-ordinating Committee and the KDH Skills Development Committee is a hindrance to their corrupt efforts. The KDH Skills Development Committee requested Ms Mashaba and the management team to attend a Skills Development Committee meeting and explain their efforts and as per usual they failed to attend the meeting and ignored the request.
In concluding, this aspect of his submissions, Mr Sigogo submitted that as Nehawu they were disappointed with the outcome of the PSC investigation and in the manner in which the investigation was carried out by PSC. All victimised staff members mentioned in the report were never interviewed by PSC and PSC only met with the Nehawu leadership and KDH management to the exclusion of victimised staff members. And the victimisation did not stop following the investigation by PSC.
4.1.2 Freezing of Posts and Irregular Appointments
As regards the issues of the freezing of posts, Mr Sigogo submitted that the issue has been part of the agenda since the establishment of the KDH in 2012. He added that the issue has been constantly raised because it does not only affect the KDH workers but also the community of Khayelitsha and its working class. He further pointed out that the freezing of posts by the management of KDH has resulted in poor patient care at the Hospital and the members of Nehawu, doctors and nurses are being blamed for this poor patient care despite it being the prerogative of the management to hire people. The PSC found in its investigative report that the management was correct in freezing posts as it was implementing measures directed by the national government.
In his submissions, Mr Sigogo further informed the Committee that from time to time vacant funded posts are used to fill other posts in the Hospital. A case in point is that of an admission clerk post that was assigned to assist a specialist doctor without the relevant support staff being assigned to assist the specialist doctor. Mr Sigogo also informed the Committee that Nehawu has noted in the past that there have been a number of irregular appointments at KDH and as such Nehawu had fought for fourteen (14) of those irregular appointments to be investigated by the PSC and only two (2) of these irregular appoints were found to be substantiated according to the PSC Report.
4.1.3 Employment Equity
With regards to the issue of employment equity at the Hospital, Mr Sigogo pointed out that KDH is situated in a black community but the Hospital management does not reflect the demographic composition of the community. Nehawu believes the issue of employment equity needs to be taken seriously and attended to and when Nehawu queried this with the Hospital management, the response it received was that it is not up to the KDH management to decide on the issues of employment equity but it is a policy that Head Office has to decide on.
In his submissions on the issue of employment equity, Mr Sigogo also touched on the appointment of Ms Mashaba, the current Acting CEO. In this respect, he submitted that as Nehawu they agreed, in principle, with the MEC that a black person be appointed to the position but the appointment of a person of the calibre of Ms Mashaba is problematic as she is not a worthy candidate for the position. Mr Sigogo also submitted they have complained several times about her conduct and in the PSC Report her name appears several times in connection with financial misconduct and victimisation of KDH staff members and instead of her being disciplined she was instead promoted to the position of Acting CEO.
In concluding his submissions, Mr Sigogo reported that after the PSC Report was tabled, Nehawu shop stewards were informed by certain KDH managers of a “hit list” of seven (7) people that must be dismissed from KDH and included in this hit list is himself and Dr Witbooi. Mr Sigogo further reported to the Committee that two individuals on the hit had already been dismissed from KDH. Mr Sigogo further stressed to the Committee, that once you take on the management of the Hospital, they will look for anything to formally charge you with, even if it does not warrant a formal hearing, and ensure you are formally charged and a hearing is held with a view to eventually dismissing you. And a specialised, substructure in the form a Labour Relations Officer, Mr K Mbobo specialises in dismissing employees who stand up for their rights.
4.2 Submissions by Dr Witbooi
In his opening remarks, Dr Witbooi, the Nehawu KDH Constituency Branch Secretary, appealed to the Committee to assist the union in stopping all forms of intimidation, threats, bullying and victimisation of staff members by the management of the Hospital. Dr Witbooi submitted that he seeks the following intervention from the Committee:
4.2.1 A thorough investigation of all the issues raised and that appropriate action be taken against all those responsible for “corrupt activities”; and
4.2.2 The steering of KDH towards a better opportunity to restore the public image of KDH and improved relations with the community of Khayelitsha.
In his extensive submissions Dr Witbooi further submitted that the staff and shop stewards at KDH have followed all the lawful and recommended procedures before turning towards the NCOP for intervention and also indicated that the following institutions were approached for intervention, in this respect, but to no avail:
4.2.3 The Public Service Regulated Code of Conduct and the Public Service Act grievance procedures;
4.2.4 KDH management and KESS in IMLC meetings;
4.2.5 The Western Cape Provincial Chamber of the Public Health and Social Development
Sectoral Bargaining Council (PHSDSBC);
4.2.6 Special IMLC meetings (these were declined) in between routinely scheduled IMLC meetings;
- Public Service Commission;
4.2.8 Commission for Conciliation, Mediation and Arbitration;
4.2.9 Office of the Chief Director, Western Cape Metro District of Health (Sub-structure)
4.2.10 Head of Department Western Cape Metro;
4.2.11 Office of the MEC for Health; and
4.2.12 Office of the Premier Western Cape.
He also submitted that Public Institutions like the Office of Labour Relations in Western Cape (headed by Mr J Roman) and the Public Service Commission only exist and function on the back of taxes paid either directly through personal income tax and VAT by the members of the public or indirectly from taxes paid by employers and Nehawu expects that these institutions will assist both the staff and management with equal determination and vigour. However; they have learnt that these institutions are mainly in the service of management and while staff members are delivering a service to the community, these institutions together with the management of KDH are constantly busy using public funds to make the life of the staff unbearable by either doing or tolerating harassment, including sexual harassment, victimisation, bullying, financial mismanagement, corruption and intimidation of staff and leaving staff members and members of public powerless and at their mercy. Over the past two weeks, the Office of Labour Relations in the Western Cape Province together with the Public Service Commission provided “Grievance procedures and Staff Discipline Training” at KDH. However, certain supervisors and managers were deliberately excluded from attending these training sessions and when one looks at who these supervisors and managers are, it will be found that they are the ones who spoke out against the wrong doings at KDH. Yet, as supervisors and managers they should have been invited to attend these training sessions. It is only when at least two of these excluded supervisors or managers complained that they were then they were allowed to attend these training sessions. The general or non-managerial staff of KDH could have also benefitted from such training sessions but they were also not invited to attend the training sessions. Dr Witbooi requested the Committee to assist Nehawu in investigating why some supervisors and managers were excluded from attending the training sessions.
In his submissions, Dr Witbooi also submitted that in the past three years Nehawu has reported the financial mismanagement at KDH to all the above mentioned institutions but their reports have fallen on deaf ears, including the case of the former CEO of KDH being paid a quarter million rands in cash for untaken annual leave. The Office of Mr J Roman (i.e. Office of Labour Relations in the Western Cape) has been aware of this issue but has not acted upon it. The PSC did an investigation into the issue and concluded that it found nothing irregular about the payment and consequently, no action was taken to restore public confidence. The argument used by the PSC in defence of the pay-out to the former CEO of KDH, was that all of the necessary documents to make the pay-out were correctly signed and this appears to be an anomaly at a hospital which repeatedly says that budget and fiscal allocation constraints reduce its ability to provide an improved healthy service to the community of Khayelitsha. Moreover, the current acting CEO of KDH, Ms Mashaba, appears to be even more dangerous with her abuse of power and once she is thoroughly investigated she must account for her “corruption”. Dr Witbooi further requested the Committee to assist it in ensuring that everyone who is part of the Hospital management and under her leadership, and knew of her wrong doings but kept silent, be held accountable.
Dr Witbooi also informed the Committee that as a union, Nehawu does not deal directly with quality of care because it is not a direct labour related issue. However, it is indirectly a labour related issue because financial mismanagement, corruption and constant victimisation of staff have a negative impact on the quality of care in that the resources of the Hospital will not be allocated in an effective way. And the compromised quality of care has resulted in the following at KDH:
4.2.13 KDH not having enough drivers to transport specimens in between KDH and Tygerberg Hospital during afterhours;
4.2.14 A senior nursing assistant manager being removed from her position by Ms Mashaba and being assigned to work away from KDH so that she cannot witness the wrong doings of Mrs Mashaba and Mr Plaatjies;
4.2.15 Mr K Mbobo (Mr Mbobo) resigned from his position as Labour Relations Officer for KESS a month ago then got re-appointed by KESS within one week of leaving to able to access his benefits. The staff at Mfuleni Clinic are unhappy with a recent KESS appointment at the health facility because it is alleged that KESS did not follow a proper recruitment and selection process and the appointment appears to be linked with the irregular re-appointment of Mr Mbobo. Both KESS and KDH management owe Mr Mbobo a lot because even though he was employed at KESS, he assisted and advised them on how to not resolve grievances at KDH and get away with it. He also advised and assisted them to render the IMLC dysfunctional;
4.2.16 Ms Mashaba and KESS attempted to make another irregular appointment in relation to an Operational Manager position in the labour ward. The process was stopped after KDH staff lodged a complaint. KESS and Ms Mashaba should be investigated for this particular incident;
4.2.17 Over loading the Hospital with patients without clearly communicated contingency measures. For example, a few months ago, patients from Mfuleni who used to be managed in the Eersteriver drainage area were added to the Khayelitsha drainage area and no clear explanation was given to staff for this decision and no information was provided for the consequences of the quality of care to patients at KDH due to the increased patient load from an additional drainage area. One expects that an executive decision to increase the patient load for KDH would be accompanied with an announcement of increased resources for KDH but it did not happen that way. Therefore, the staff was exposed to a greater risk of individual errors and burnout while the complaints from the public against KDH quality of care escalated in number;
4.2.18 Many high-quality staff are not attracted to working at KDH;
4.2.19 Occupational Health and Safety is compromised and continues to be compromised at KDH;
4.2.20 Staff members appointed through corrupt recruitment and selection processes are blindly being loyal to management and protect management and eventually assist in committing corrupt practices; and
4.2.21 Constantly bullied and victimised staff do not buy into the plans of management and will not provide a service to the best of their ability.
He further indicated that Nehawu had submitted reports relating to the quality of care at KDH and once a thorough investigation is conducted into the issue, many reports are likely surface in this regard.
Dr Witbooi also submitted that the appointment of Mr Stamper was a corrupt appointment and this appointment has been defended by the management in spite of multiple complaints from both the staff and patients. Mr Stamper, who has now left KDH, was appointed at KDH as an advanced midwife but could not even function at that level of a normal none-advanced qualified midwife or even worse, a general professional nurse who happened to work in labour ward. As a result, pregnant patients were repeatedly exposed to his clinical mismanagement. His biggest defenders are the current Acting CEO Ms Mashaba and Mr Plaajies and the severe and inappropriate discipline which was applied to other staff members at KDH was not applied to Mr Stamper. And the PSC found absolutely nothing wrong with his appointment and role at KDH even though Nehawu believes that the issue of his appointment must be reopened for investigation.
- Submissions by Mr A Ernstzen
In his submissions Mr A Ernstzen (Mr Ernstzen) informed the Committee that he was a Human Resources Manager of KDH from 2011 up until his dismissal in July 2018. He further informed the Committee that his submissions will relate to some of the issues covered in the PSC Report. He added that during the investigation by PSC, PSC did not at any time request to interview him in connection with human resources matters at the Hospital. He also emphasised that he has dealt with most of the issues articulated in the petition and even more.
In his submissions, Mr Ernstzen submitted that he had worked closely with the former CEO of the Hospital, Dr Kharwa, and that at some stage he was labelled as Dr Kharwa’s “lap dog” because he used to execute most of the instructions given to him by Dr Kharwa. However, things changed when he was required to respond to issues raised by the Auditor General (AG) regarding irregular recruitment selections, overtime and staff performance. The AG needed answers, in this regard, but he started to feel uncomfortable and began to question the motive behind many of the things happening at KDH such as the manipulation of performance reports, the hiring of unqualified staff and incidents of nepotism. And when he began questioning these things, he started falling out of favour with Dr Kharwa and then he became a target. He also felt that he was not protected under the Promotion of Access to Information Act (Act 2 of 2000) (PAIA), national legislation contemplated in section 32 (2) of the Constitution. Mr Ernstzen also confirmed that he was aware of the “hit list” referred to by Dr Witbooi in his submissions and is unsure whether to take the “hit list” literally or figuratively as it makes him fearful when there are talks about the existence of a “hit list”. He further informed the Committee that a few years back, one of the colleagues was shot to death and it is alleged that the colleague used to meet with Dr Kharrwa after hours and he was also favoured by Dr Kharwa. It is further alleged that this particular colleague kept confidential documents in his locker and all of a sudden these confidential documents disappeared.
Also According to Mr Ernstzen, his job as Human Resources Manager at KDH entailed recording everything and some of the recordings he made have been emailed to the MEC for Health (MEC) such as recordings about the alleged manipulation of the performance management system, the recruitment and selection processes and overtime. He indicated that when he tried to bring the recordings to the attention of the MEC and the Head of Department of Health he ended being a target of the management at KDH. He further assured the Committee that he still has the documents, recordings and videos exposing some of alleged irregularities at KDH. He further stated that a case in point, in this regard, is that of Mr Plaatjies not fully recusing himself from the panel where his brother was also an applicant for a position and was later given a written warning for this transgression. The circumstances of this case point to the fact that Mr Plaaitjies was not fully aware of the procedure in terms of recusing himself from the panel.
Mr Ernstzen also highlighted occupational health and safety issues at KDH, in his submissions to the Committee. In this respect he indicated that a few months ago the MEC opened a scanner room at the KDH but a year before the official opening of the scanner room, a former Facility Manager at KDH had raised a concern regarding the safety of the scanner room. According to the former Facility Manager, the scanner room had no ventilation, no exit in and out and as such this posed as a risk. He then asked the management, the contractor (who constructed the scanner room) and the Department of Public Works who will take the risk if something happens and people are unable to exit that particular room. The Chief Radiologist raised the very same concerns about the safety of the scanner room.
Mr Ernstzen also submitted that prior to the health and safety issue with the scanner room, there were two fire scares at KDH in September 2018. In one instance there were no precautionary steps taken to secure the area and also no steps taken to safely move patients out and what happened was that Hospital staff were running out first leaving the patients behind. Soon thereafter, there was a disaster management meeting, included in that meeting was the Emergency Medical Services, Traffic Police and officials from the Fire Department to assist with how to organise a drill. All the stakeholders reconvened for a second meeting and made demonstrations to the staff at KDH. The Chief of the Fire Department was not present at the second meeting but he had issued an inspection report after the first meeting wherein he found a number of fire safety irregularities at the Hospital and informed the Hospital that he refuses to part of the disaster meeting until the fire safety irregularities he identified are sorted out. The Chief of the Fire Department had issued KDH with a letter in this respect and had given it a time frame within which to sort out these irregularities. In June 2018, it was established that most of these irregularities had not been attended to as per his instructions or recommendations.
In concluding his recommendations, Mr Ernstzen submitted that there have been many other related incidents and he is willing to provide the Committee with recordings on how the performance management system was manipulated, since he was also being subjected to such victimisation and intimidation. He reported that his dismissal on the 2nd of July 2018 was inclusive of the fictitious charges laid against him but indicated that he is busy with an arbitration. He further pointed that he has exhausted all the avenues and even tried meeting with the MEC, but the meetings are always postponed.
4.4 Submissions by Ms T Konile-Mdekazi
In her submissions, Ms T Konile-Mdekazi, a former manager of the substructure briefly informed the Committee that she was targeted for firstly, assisting an NGO to source funding and secondly, for assisting Ms Gladys Fuzane (the petitioner in the Fuzane petition submitted to the NCOP). And thirdly, fired without a disciplinary hearing after an incident involving the Western Cape Department of Transport (Department of Transport).
With regards to the assistance she provided to Ms Fuzane, she submitted that when the Committee summoned her to appear before it in relation to the Fuzane petition, Dr Kharwa instructed her to lie and inform the Committee that the late Ms T Fuzane was not beaten but had bed sores. But according to Ms Konile-Mdekazi, she wrote a different report as to the one she was instructed to provide to the Committee by as per the instruction of Dr Kharwa.
Ms Konile-Mdekazi further explained the events leading up to her unfair dismissal. In this respect, she submitted that the Department of Transport had allocated her a vehicle with the registration number GCV09IG to use from 1 to 28 February 2017 and although she had been a regular driver of that car for two (2) years, the same car was allocated, to one, Ms Jones for three (3) days. On the second of February 2017, the Transport Officer authorised her to go and swap the cars with Ms Jones at Nolungile Clinic. However, when she got to Nolungile Clinic, Ms Jones refused to hand over the car to her and Mr Ian Williams, the Transport Manager, in acknowledging and correcting the mistake done by the Department of Transport, instructed Ms Jones to hand over the car to her and Ms Jones handed over the car to her. A month later, on the 24 March 2017, Ms Sheila Maclean, her secondary supervisor, informed her that Ms Jones had written a complaint against her stating that she had been rude to her and acted in an unprofessional manner when she requested the car. She then had to write her own statement pointing out the lies that were written in the complaint by Ms Jones.
There was also a lot of correspondence from Ms Maclean to the Human Resources Directorate (HRD), accusing her of not attending meetings yet she was never invited to these meetings. She was further excluded in most of these communications. On 30 May 2017, Mr Mbobo, the Labour Relations Officer, requested a meeting with her and she had explained to Mr Mbobo that in light of her itinerary, the meeting notice was sent at short notice. Mr Mbobo became rude to her when she pointed this out and hung up the phone on her. She then arranged through Mr Mbobo for the shifting of the meeting to the 31 May, which was agreed upon and evidence to this effect can be provided. The meeting took place on the 31 May 2017 and Mr Mbobo stated that he is not going to lodge a complaint about the communication of the 30 May 2017. On the 31 July 2017, she was served with six duplicated charges and Mr Mbobo had also drafted a four-page statement accusing her of being rude to him and all sorts of other accusations.
Mr De Long from the Department of Transport had also written a statement stating that he was not there on the day of the incident and he had heard that she forcefully took the car from Ms Jones even though nobody had given her the authority to go and swap the car. On 13 October 2017, she was formally invited to a hearing, but unfortunately her Nehawu representative had bereavement and this was communicated to Rozaan of HR. On the 28 November 2017, she was served with a dismissal letter by Sheila and Rozaan. The dismissal letter in question had no details on the hearing such as the hearing date, hearing venue and time and this point to the fact that there was no formal hearing. She appealed her dismissal on 30 November 2017 without being given minutes of the hearing, a list of attendees and a report from the presiding officer whom she had never met together with the investigation officer. Her appeal failed and her dismissal was confirmed and signed by the Substructure Office Head of KDH, Dr Phillips who had been involved in the case from the start.
In concluding her submissions, Ms Konile-Mdekazi submitted that she later found out that her benefits such as medical aid were suspended on the 30 of November 2017, which is the day that she lodged her appeal yet she was only formally dismissed on 11 December 2017. And this makes her believe that they knew that they were going to dismiss her, so her appeal was just a formality.
4.5 Submissions by Ms D O Kiewies
Ms D O Kiewies (“Ms Kiewies”), Chairperson of the Cape Metropolitan Health Forum, briefly informed the Committee that the issues at KDH were as a result of a rushed political project. She added that when the Hospital was built it was fully known that it was too small to serve the community of Khayelitsha. She also submitted that there is a lost set of minutes which outlined how the Western Cape Department of Health (“Department”) was going to manipulate and victimise “problematic” staff members. She emphasised that once the Department determines you are a problem, it has a way of making sure it gets rid of you and she too had been manipulated and victimised by the Department.
- SUBMISSIONS BY THE DEPARMENT OF LABOUR
The oral submissions on behalf of the Department of Labour (DOL) were led by the Acting Deputy Director General, Ms A Moiloa (Ms Moiloa) and Adv M T Ntleki (Adv Ntleki), a Legal Advisor in the DOL.
In her submissions, Ms Moiloa outlined that there are two issues raised in the petition in respect of which the DOL can play a direct role petition, namely the employment equity and occupational health and safety issues. With respect to the issue of employment equity at KDH, Ms Moiloa submitted that the DOL is administratively mandated to ensure that institutions comply with the prescripts of the Employment Equity Act (Act No. 55 of 1998) (Act). She further submitted that having noted the PSC Report and its recommendations, the DOL can conduct a thorough inspection geared towards ensuring compliance with the Act. She however cautioned that the DOL does not have a mandate to prescribe racial quotas to institutions but can only provide guidance taking into considering the demographics of a particular area. And the DOL has already assigned an inspector to conduct an employment equity inspection at KDH.
As regards, the issue of occupational of health and safety, she submitted that the DOL has a legal mandate to ensure that employers and employees are not subjected to unhealthy and unsafe working environments. And in this regard, it has assigned a specialist to conduct an inspection after noting the contents of the PSC Report and it already has an undertaking in the office that the inspection will indeed take place.
In his submissions, Adv Ntleki submitted that in between the presentations he noted that there were issues of employment conditions raised and pointed out that the DOL has a limited involvement in terms of the Labour Relations Act (Act 66 of 1995) (LRA) in so far as such issues are concerned. However, he assured the Committee that the LRA has put mechanisms in place to deal with such issues. In fact, the bargaining council is actually mandated to do that in terms of S28 of the LRA.
Further in his submissions, Adv Ntleki raised a concern that during the course of various submissions he did not get a sense that some of the individual cases are purely administrative in nature and that all the processes were followed up to a point where they were referred to the bargaining council or the Commission on Conciliation Mediation and Arbitration (CCMA). He also encouraged Nehawu to assist in ensuring that these cases are referred to the correct platform and even where the cases are unsuccessful on that platform. Adv Ntleki also added Nehawu should continue to assist and make sure that these cases are referred right up to the Labour Court. It is where the Labour Court will be able to rule on these cases and take the institution to task where it has erred and correct the matter.
6. SUBMISSIONS BY THE PUBLIC SERVICE COMMISSION
Submissions on behalf of the Public Service Commission (PSC) were led by Dr MS Lebello (Dr Lebello). In his submissions, Dr Lebello submitted that his submissions will cover the step by step investigation process, overall findings and specific recommendations of the PSC Report.
Dr Lebello submitted that the PSC investigated team engaged all affected parties during this investigation and gathered all the necessary information. He added that the investigation process by the PSC included the following steps:
6.1 Step 1: Preliminary meeting conducted with the Nehawu leadership at an institutional level. This took place on 08 March 2018.
6.2 Step 2: Development of Terms of Reference for the investigation.
6.3 Step 3: Investigative meetings conducted with all parties, namely, Nehawu, the Management of KDH, and the Metropole Management. These meetings (which took place between 19 and 20 March 2018) were conducted to gather oral evidence directly from the complainants, the leadership of the institution and the regional management.
6.4 Step 4: There was scrutiny of all documentary evidence provided by all the parties. Nehawu provided evidence and the HR unit of the substructure provided evidence.
6.5 Step 5: Analysis of evidence and drafting of report. This included additional evidence requested from the substructure HR unit and other relevant information.
6.6 Step 6: Submission of the report to PSC Chairperson, NCOP Chairperson, and engagement with all parties on content and recommendations of the report.
Dr Lebello further indicated that feedback sessions were conducted with each of the parties, including the MEC of Health and HOD of Health. The content of the report was discussed and questions responded to by the investigative team. In closing his submissions, Dr Lebello indicated that in its overall findings, PSC found that there was merit in most of the allegations made by Nehawu. However, the severity and veracity of certain conclusions drawn by Nehawu was contestable. The PSC also found that whilst the facts surrounding the specific allegations differed, they nonetheless pointed to a level of procedural or systemic failures. In the case of employment equity targets, it recommended a policy review to be undertaken by the Department and found that the decision making process was highly questionable in the case of annual leave pay-outs and the continued utilisation of retired staff.
- SECOND HEARING ON THE SIGOGO PETITION
The second hearing on the petition was held on 28 February 2019 at Parliament.
- Committee Members and Officials
The following Committee Members attended the second hearing on the petition:
7. 1.1 Hon D L Ximbi, ANC, Western Cape (Chairperson of the Committee);
7. 1.2 Hon H E Mateme, ANC, Limpopo;
7.1.3 Hon S G Mthimunye, ANC, Mpumalanga;
7.1.4 Hon G G Oliphant, ANC Northern Cape,
7.1.5 Hon T Wana, ANC Eastern Cape, and
7.1.6 Hon T Mokwele, Northern Cape.
The following Committee Members tendered their apologies for being unable to attend the hearing on the petition:
7.1.7 Hon M J Mohapi, ANC, Free State; and
7.1.8 Hon J M Mthethwa, ANC, Kwa-Zulu Natal;
The Committee Members present at the hearing on the petition were supported by the following Committee officials:
7.1.9 Mr N Mkhize, the Committee Secretary;
7.1.10 Dr M Gondwe, the Committee Content Advisor;
7.1.11 Adv. T Sterris, the Committee Researcher;
7.1.12 Mr M Nkwali, Researcher, Office of the NCOP Chairperson; and
7.1.13 Ms F L Lombard, Parliamentary Communications Officer.
The following representatives of the Nehawu Khayelitsha District Hospital Constituency appeared before the Committee during the hearing:
7.2.1 Dr M Witbooi, Secretary;
7.2.2 Mr S Manga, Clinical Programme Coordinator;
7.2.3 Mrs M E Warnick, Assistant Nursing Manager;
7.2.4 Mrs M Bennett, Clinical Programme Coordinator;
7.2.5 Mr M C Speelman, Admission Clerk;
7.2.6 Mrs B Q Rolane, Nehawu Branch Secretary,
7.2.7 Ms S Yamiso, Nehawu Shop steward;
7.2.8 Mr S Jiya, Nehawu Shop Steward;
7.2.9 Mr A Ernstzen, Nehawu Member and Witness; and
7.2.10 Ms T Konile-Mdekazi, Nehawu Member and Witness.
The following representatives of the Department of Labour appeared before the Committee at the hearing:
7.2.11 Mr. D Esau, Chief Inspector; and
7.2.12 Mr. T N Stana, Chief Inspector.
The following representatives of the Public Service Commission appeared before the Committee at the hearing:
7.2.13 Dr M S Lebello, Commissioner;
7.2.14 Mr L J Goosen, Commissioner;
- Mr P Nzimande, Commissioner;
7.2.16 Mr R S Erasmus, Deputy Director; and
- Mr P Rockman, Western Cape Provincial Director.
8. SUBMISSIONS BY THE PETITIONER
8.1 Submissions by the Dr M Witbooi
Submissions on behalf of the petitioner were led by Dr M Witbooi (Dr Witbooi), the Nehawu KDH Constituency Branch Secretary. In his submissions, Dr Witbooi briefly recapped on the submissions made before the Committee on 8 November 2018.
In his submissions Dr Witbooi further highlighted that Nehawu represents all workers, including those workers who have issues outside of the health care sector. Also according to Dr Witbooi, Nehawu had followed all the normal processes in relation to the complaints levelled against the management of KDH but found that despite following the proper processes they were not making any progress in resolving the complaints. He added that he believes that if these complaints are not resolved the biggest victims will be the poor and vulnerable community members of Khayelitsha. And the staff of KDH will also be at the receiving end as long as these complaints remain unresolved.
Dr Witbooi further submitted that one of the biggest concerns for Nehawu is the financial mismanagement of KDH. The management of KDH has failed to manage the finances allocated to KDH in a proper manner so that services are properly delivered to the community. The management of KDH has also failed to be transparent in managing the finances given to the Hospital and the community is often told, by the management of the Hospital, that there is no money to provide proper services. He did however acknowledge that there are limitations with the finances allocated to KDH but this cannot be used as an excuse for not adequately servicing the community.
He also submitted that the second biggest concern for Nehawu is the way the KDH staff are managed. If you are too vocal, as a staff member, about the issues that need to be addressed, the management will victimise you and there are witnesses that will make submissions to the Committee on this victimisation. And the witnesses appearing before the Committee in this regard represent a small portion of so many other people that have been victimised by the management of KDH.
In his submissions, Dr Witbooi also addressed the issue of health and safety at the Hospital, indicating that the staff and patients need to be in a healthy safe working environment including the patients. He reported that as a union, they had fought hard through all the available channels (including the Institutional Management Labour Committee (IMLC) and Provincial Chamber Bargaining Council (Chamber)) for the health and safety issues at KDH to be addressed but were told that is nothing wrong at KDH. He further made the Committee aware that the issue was given attention after the first hearing on the petition wherein the Department of Labour (DOL) made an undertaking to conduct an inspection at the Hospital. And the inspection was carried out and Nehawu is impressed with the inspection carried out although there were acts of intimidation perpetuated against staff members by the Provincial Department of Health during the inspection.
In concluding his submissions, Dr Witbooi notified the Committee that the moment the management of KDH knew that there was going to be a labour inspection conducted, it changed a lot of things and prepared for the inspection to ensure that it is found to have complied with the health and safety issues raised by Nehawu in the petition. He further submitted that KDH management went so far as to summon the non-functioning Health and Safety Committee to a meeting, something which has not been happening for months. These “misleading tactics” of the management of KDH have also been applied to the clinical care and audit processes, whereby they are always preparing in advance to “cover up” and ensure whoever conducts the audit makes no adverse findings.
In further concluding his submissions, Dr Witbooi made submissions that on the manner in which complaints by staff members are resolved by the management of KDH. In this respect he stated that where a complaint is filed by a staff member that complaint will not be treated with the urgency it deserves and will instead be dragged out. He cited as an example an instance where one of the staff members complained about the irregular appointment of one Mr Francois Brandt and lodged a grievance. The response to this grievance was give 5 (five) years after the grievance had been lodged.
In concluding his submissions Dr Witbooi reiterated that Nehawu has followed all the internal processes in relation to the complaints including elevating them to the IMLC and Chamber but there has been no intervention from the MEC of Health and the Chamber has indicated that the issue is that the management of the Hospital and Nehawu need to be trained in resolving issues. He also added that Nehawu had elected to appear before the Committee in an effort to resolve its complaints within the framework of the law.
8.2 Submissions by Mr S Manga
Mr S Manga (Mr Manga), a Clinical Programme Coordinator responsible for infection control made oral submissions on the issues of recruitment and selection; wellbeing of nursing staff and psychiatric care at the Hospital.
8.2.1 Recruitment and Selection
In his extensive submissions, Mr Manga raised concerns, that KDH is in a mess when it comes to its recruitment and selections processes and staff are depressed because when posts are being advertised and they apply they are often told that they do not qualify for the posts and are hence not shortlisted for interviews. He further added that there is an emerging pattern that almost all managers, at KDH, that are employed under the nursing component are from psychiatric hospitals or have a psychiatric care back ground despite KDH being a general hospital and not a specialist hospital and he often wonders if this does not contribute to the adverse incidents that are occurring at the Hospital.
He further indicated that ever her appointment of Nursing Manager, the Acting CEO of KDH is on a campaign to purge all the existing managers and nurses and replace them with nurses from psychiatric hospitals and not take into account they experience. KDH is still awaiting the appointment of a new Quality Manager. Moreover, all the interview panels at the Hospital in the past year have been made up of one Chairperson sitting for all the nursing related interviews. The management of KDH is divisive and defensive in their approach to the recruitment and selection of staff and if something is not urgently done, KDH will be losing good and experienced nurses, as they are not considered when positions open up.
Further in his submissions on the recruitment and selection processes at the Hospital, Mr Manga informed the Committee that the recruitment and selection processes at KDH leaves too much to be desired, so much so that it disadvantages every nurse with the title of Clinical Programme Coordinator. Mr Manga also submitted that in 2016, he applied for the post of Assistant Manager in General Nursing and he was not shortlisted for interviews. And he subsequently wrote a letter, in August 2016, seeking clarity as to why he was not shortlisted for interviews but there was no response forth coming. Then on 16 September 2016, he launched a grievance seeking reasons for not being short listed and he only received a response on 9 November 2016 stating that an error was made but they recommend that he continue to apply in the public service. Mr Manga further submitted that he forwarded his grievances to the Office Chief Director and, People Management Office and received no response. He then requested Nehawu to intervene and Nehawu wrote to the Chief Director on 1 March 2017 indicating that if there is no response by 3 March 2017, Nehawu will declare a dispute on the matter. On 3 March 2017 there was still no response, then Nehawu declared a dispute on the matter and engaged with the Bargaining Council on the matter. On the 17 March 2017, he received a response from the Chief Director and People Management Officer which basically stated that his grievance was found to be unsubstantiated.
Mr Manga further informed the Committee that an arbitration hearing was scheduled and heard on 05 July 2017. And he noticed that the advert was changed to state that one needs to be able to show evidence in respect of their managerial experience and also provide evidence that there are people who are currently reporting to them. One had to show that they had previously managed leave of staff; conflict; assessment appraisals; and taken disciplinary steps against employees reporting to them. In the previous advert all those requirements were not stipulated. Mr Manga submitted that he believes that if even these requirements where in the previous advert he would have still qualified for the concerned post. On the 25 July 2017, an outcome of the hearing was received which favoured the Department of Health. Also according to Mr Manga, in this sense, all Clinical Programme Coordinators across the Province are stuck in terms of their career development.
8.2.2 Wellbeing of Nursing Staff
In his submissions on the wellbeing of the nursing staff at KDH, Mr Manga submitted that there are 3 (three) nurses, at the Hospital, who have been diagnosed with depression and all 3 (three) nurses are reporting to the same manager and that manager is refusing to help or assist them. The manager also refused to act on the recommendations made by a doctor who examined and diagnosed 1 (one) of the 3 (three) nurses. 2 (two) of the nurses are currently on sick leave due to depression. Mr Manga also cited the case of a nurse who is suffering from a backache and was diagnosed with deep vein thrombosis diagnosed an on January 2018 and the doctor recommended that she be removed and placed where she can avoid lifting and put strain on her legs, the nurse even signed a PILLAR (Temporally Incapacity Leave Long Period) and submitted it to her manager but her manager refused to act on it.
8.2.3 Psychiatric Ward
Mr Manga lastly reported to the Committee that KDH was not, initially, designed to accommodate psychiatric patients and its wards are not built in such way as to accommodate such clients. Moreover, there are no staff employed for psychiatric ward but the Hospital still operates a psychiatric ward which is 35 bed ward. Mr Manga further submitted that there are no cleaning staff for that ward and during its recent inspection at the Hospital the Department of Labour recommended that cleaning staff be employed for the ward however to date nothing has been done. He had previously raised concerns on this issue with the management of KDH and the Acting CEO had instructed him to do investigation and come up with recommendations and he did just. But his recommendations were rejected and told that “this happens in all other psychiatric and district hospitals provincially”.
Mr Manga concluded his submissions in this respect, by informing in the Committee that in February 2019, that there were 79 patients in the psychiatric ward which is a 30 bed ward. This has led to maintenance unit being called 3 to 4 times a day to unblock the toilets or fix whatever is broken. He also cautioned that the psychiatric ward which is located or accommodated on the first floor of the Hospital presents a risk in itself as recently, a patient nearly jumped from the first floor to the ground floor. There have been a lot of other similar incidents involving psychiatric clients. He further indicated that nursing staff are sent to do advanced psychiatric courses however they qualify most nurses resign and go back to work in other hospitals as their qualifications are completely disregard. The attrition rate at KDH is generally very high because of such practices.
8.3 Submissions by Ms M Bennett
In her detailed submissions Ms M Bennett (Ms Bennett), a qualified nurse and manager of the training department at KDH, submitted that the purpose of her submissions is to inform the Committee about the concerns she has around the poor management of adverse incidents at KDH. According to Ms Bennett patients have become victims of bad care and the management of KDH and its staff are not being held accountable for transgressions committed in the jobs that they are employed to do. Ms Bennett also informed of the following adverse incidents that have occurred over the years at the Hospital and that is aware of:
8.3.1 Incident 1:
2 (two) neonates died, in the nursery department of KDH, after a blood transfusion was given to them by an agency staff nurse you had no experience in working in the nursery department. The incident occurred during the night duty shift and was reported to them, in the morning, during the handover meeting. Ms Bennett and a colleague went to the nursery department to get the full details of the incident. When they arrived at the nursery department they found the mother of one of the deceased babies sitting and looking distraught in one of the rooms. The mother informed them that her baby just turned blue after the nurse started the blood transfusion. It later emerged that the professional nurse who carried out the transfusion was booked to work at the Hospital on an agency night duty shift. And during her night duty shift, the agency staff nurse, was directed by the night manager to work in the nursery department, despite the agency staff nurse indicating to the night manager that she was not experienced in working in a nursery department. It also later emerged that the deceased babies died of a fluid overload during the blood transfusion.
8.3.2 Incident 2:
On January 2015, a doctor reported that a mother had collapsed in the nursery department in the morning. The doctor on call was informed by the nursing staff that the mother collapsed. On her arrival, the doctor found the patient still lying on the floor, face down with no nurse attending to her. There was no vital sign monitoring carried out on the patient, no basic life support measures implemented nor was there any attempt made to see if the patient was alive or dead. The doctor on call activated the red box alarm but found the nursing staff very unhelpful and they claimed that the patient was already discharged. The patient was then managed and then sent for a CT scan. The doctor on call viewed this incident in a very serious light and therefore requested an investigation into the incident. It is unclear if an investigation into the incident took place.
8.3.3 Incident 3:
On 27 December 2016, a female patient was admitted in the emergency care department with complaints of headache and neck stiffness. She was nursed in the emergency department, trolley area on a stretcher and transferred to a two bed side room in medical 2 ward on 29 November 2016. The patient later jumped through the window of her room on the afternoon of 2 December 2016. The patient was taken from the area in the garden where she fell to the resus area in the emergency care department and was resuscitated, intubated, ventilated and transferred to TygerBerg Hospital (TBH) in a critical condition having sustained multiple injuries. that the patient survived the fall and was transferred back to KDH.
The Assistant Manager of Nursing was the only manager at the Hospital on the day of the incident and the rest of the managers were attending the staff year end function at a house in Eerste River. This incident was never fully investigated by that Assistant Manager of Nursing but was instead investigated by Ms Warnick who could clearly see that the patient was not going to get the justice she deserves. Ms Warnick made it her personal business to investigate the incident in the presence of the Operational Manager and Assistant Manager of Nursing who was ultimately the accountable person to have investigated this incident. Through her investigation, Ms Warnick discovered that the patient suffered from symptomatic hyponatraemia linked to syndrome of inappropriate ADH release in patients with HIV. The patient was a high risk patient as it was recorded that the patient was confused and had altered mental status yet no interventions were implemented to ensure the safety of this patient. The nursing assessment of this patient was, throughout the admission and stay of the patient, done by a nursing assistant despite nursing assistants possessing limited educational qualifications and not being expected to make assessments on certain aspects of patients care as in the case of the patient concerned. The nursing care of this patient was supposed to have been guided by a registered nurse or a nursing manager. One of the recommendations of this incident was the implementation of disciplinary steps, however it is unclear if these disciplinary steps were taken against those in the wrong.
8.3.4 Incident 4:
On 02 December 2016, a female patient allegedly died in the emergency care department after KCL was administered intravenously by an agency staff nurse during a night duty shift. This patient was admitted with deep vein thrombosis and was nursed in the asthma area of the emergency care department at the time. On the night in question, the Hospital was managed by a registered nurse from emergency care department and the patient later died.
The incident was never reported to Sister M Warnick (Sister Warnick), the champion of the adverse incidents management at the time and the Assistant Manager for the Maternal and Child Health Stream. Rumours doing the rounds in the Hospital at the time were that the patient died of natural causes. However, some of the porters alleged that the patient screamed so loud when she was taken to the resus area and she eventually died. KCL has the tendency to burn, especially if it was given as a bolus and not reconstituted with saline and given as a transfusion. Ms Bennett submitted that she asked the following questions after hearing of this incident - why was the staff nurse administrating KCL intravenously (administrating 1V medication falls under the scope of a registered nurse) and why was this drug given in the asthma area and not in the resus area where the patient could be monitored (KCL is a potentially dangerous drug that can cause arrhythmias if not given with causing through an infusion pump and where the patient could be monitored). Ms Bennett further submitted that she does not know if the agency staff nurse and the agency she worked for were ever held accountable for this incident and for her working out of her scope of practice on that night.
8.3.5 Incident 5:
Ms Bennett submitted that in or around February 2017 she went to the medical ward 2 to follow up some nursing students. As she was waiting for the students, one of the doctors came to ask her to give training on medication training. The doctor showed her a part of a prescription chart where warfarin and clexane were prescribed for a patient that was admitted with deep vein thrombosis. These lifesaving drugs were not given for four days to the patient and the doctor made her a copy of one side of the prescription chart. As she was perusing the prescription chart, she overheard the manager of the ward asking the doctor why she (Ms Bennett) is involved in the matter. The following day, she went back to the doctor to get the rest of the prescription chart and more details on the patient. The doctor then informed her that she was scolded by the manager for involving her and it is best if she let go of the incident. Ms Bennett further indicated that she went to the pharmacy manager and explained to him what happened the previous day and to brainstorm what else they can do to ensure compliance in medication management. The pharmacy manager told her, that he was aware of the incident since the manager already came to see me him and blamed the shading of the prescription as the reason for the drugs not being administered to the patient. This new prescription chart was trailed for a year in that ward before it was implemented and the manager never said anything until the incident came up. Ms Bennet submitted that she reported her concerns around the matter to the supervisor, but nothing was done. A few months after the incident the CEO called her to a meeting to discuss the challenges that they have with training in the hospital. Ms Bennet further explained, she brought this incident to the CEO attention as an example of the challenges that they have in terms of training in the hospital. He agreed it was unacceptable and instructed the nursing manager to investigate the incident. The manager and the assistant manager denied in an email that they ever knew about the incident. She then proposed to the nursing manager to call all the parties involved to a meeting as it was clear that those managers were not going to admit to knowing about the incident. The nursing manager refused to invite the other staff to the meeting and threatened Ms Bennett with insubordination if she did not turn up for the meeting. Ms Bennet attended the meeting and at the meeting both managers denied knowledge of the incident. She was interrogated by all three of them and treated as if she had committed a crime. She indicated that she did not deserve to be treated like that. The manager eventually admitted knowing about the incident, but nothing came of the admission. No further investigation was done by the nursing manager and the staff involved in the incident were not held accountable for this incident.
8.3.6 Incident 6:
On 20 May 2018, a patient refused to take medication from a staff nurse whom the patient alleged was drunk whilst on duty. This incident was reported by the night duty shift leader and reported to the registered nurse that was managing the Hospital on the night in question night. The incident occurred in surgical ward 1. The registered nurse that managed the hospital found the staff nurse drunk and removed him from clinical duties. She requested him to wait in the staff tea room whilst she consults with the Nursing Manager responsible for matters that occurs on night duty. When she returned to the ward, she found that the staff nurse had absconded from his point of duty. There is no evidence in the report that actions were taken against the staff nurse for being drunk or leaving his point of duty without permission despite both actions constituting dismissible transgressions.
In December 2016, Sister Warnick, the Assistant Manager for the Maternal and Child Health Stream, took the imitative to establish a platform where adverse incidents occurring, in the Hospital, could be discussed and remedied. Sister Warnick discovered that most incidents were not reported nor investigated. She became the champion of adverse incidences management and even got a register where adverse incidents were reported. Most operational managers and staff saw the value of it and it finally got, the Hospital, to the point where managers and staff could be accountable for adverse incidents, this initiative that Sister Warnick started, were later incorporated in the Norms and Standards of the National Health Act (Act 61 of 2003).
In June 2017, Sister Warnick removed herself as the champion of adverse incident management after being subjected to victimisation and abuse from certain managers. There is nothing wrong that Sister Warnick did apart from exposing Operational Managers, Assistant Managers and the Nursing Manager for not taking accountability for the reporting and investigation of adverse incidents. For the first time, in the history of the Hospital, there was a platform where incidents could be discussed, but the platform became dormant after Sister Warnick removed herself from driving this platform. The Quality Assurance manager at the time often came to complain to Ms Bennett about how she struggles to get the reporting and the investigation of adverse incidents done by the relevant the managers. To this day no adverse incidents were reported after the resignation of Sister Warnick in June 2017 and in 2018.
The staff that advocate for patient care, for fair and correct nursing processes and who would like to take hospital forward are victimised by the Nursing Manager and other Assistant Nursing Managers. The management of adverse incidents is part of her performance plan, but she is never included nor notified of adverse incidents, especially since Sister Warnick was removed from being the Assistant Manager of Maternal and Child Health. During the latter part of 2018, Sister Warnick, was made an offer to manage a project by the Director of KESS and her position has now evolved to that of Research Coordinator and a Quality Assurance Coordinator. According to Ms Bennett, the Director of KESS offered her this position because her clinical competence, management style, strong advocacy for patient care and service delivery had become a threat to the lack of competence on the part of the Nursing Manager. The Director of KESS and the CEO of KDH have on many occasions made a verbal offer, to Ms Bennet, to move to KESS and provide training in the surrounding clinics but she has refused the offer because they have failed to put the offer in writing and she could clearly see that they were trying to get rid of her.
In concluding her submissions, Ms Bennett reported that she took the initiative of getting all the role players together in compiling an SOP in order to agree upon the standard of care for patients. Clinicians attended all the meetings pertaining to the matter but some of the relevant managers only attended the first two meetings. She eventually compiled the SOP and presented it to her Supervisor in May 2018, to date that SOP is still not approved. However, SOPs like the Nursing Training Forum and the Nursing Stamp, which were submitted after the SOP on the standard of patient care, were readily approved because they were driven by the personal agendas of the Nursing Manager and her friends. Further according to Ms Bennett, an incident later occurred where a doctor connected a patient to the wrong unit, something that could have been prevented if that SOP on the standard of patient care was approved as the relevant drains could have been ordered and training carried out. If this particular SOP had been approved, it could have resulted in the following:
- Added value to patient care;
- Prevented adverse incidents from occurring;
- Reduced the length of stay of patients and freed up desperately needed beds if the low suction units were ordered as agreed upon;
- Improved the patients experience in terms of the care received; and
- Relieved the service pressure on other hospitals such as Tygerburg Hospital.
Also in concluding her submissions, Ms Bennet submitted that the following needed attention at the Hospital:
- The ordering of name stamps for staff nurses - this constitutes irregular expenditure;
- Establishment of a Nurse Training Forum in the presence of a functional Skills Committee;
- Payment of Registered Nurses working in the Thutuzela Forensic Unit at KDH;
- The working hours of the Assistant Managers on the night duty shift;
- The transfer of two professional nurses to provide support to the Assistant Nursing Managers on the night duty shift;
- The assistance provided to the emergency care manager by removing specialist nurses from clinical duties;
- Corrupt recruitment and selection processes;
- Unresolved grievances of victimisation; and
- Emails to the Head of Health and the CEO of KDH reporting the victimisation of staff members.
- Submissions by Ms M Warnick
In her submissions Ms M Warnick, operational manager at the maternal neonatal unit briefly raised certain the issues that she had encountered with the senior management of KDH. In this respect, she submitted that she was initially appointed as an operational manager in the neonatal unit of KDH and was later promoted to the position of operational manager, charged with supervising the maternal neonatal unit of KDH. She further submitted that she is concerned with staffing norms at Hospital having noted that the steep growth in patient numbers. She added that she believes the current staffing profile is insufficient to effectively manage the total number of patients that the Hospital is servicing. Take for instance the staffing of the women’s health unit at the Hospital, which manages women with complications of early pregnancy, acute gynaecologist emergencies and second trimester abortions is so poor.
In her submissions Ms Warnick also related how in August 2016, before taking over the management of the maternal neonatal, she received an email from the attending specialist obstetrician asking why am experienced and competent staffing nurse was transferred to another area, leaving only one professional nurse to assist him with medical procedures. She then referred the specialist obstetrician to head of nursing and a year after the specialist obstetrician raised this issue there was still no intervention. She then raised this with head of nursing and CEO of hospital as no one else was trained in comprehensive abortion care and she received offensive response indicating that previous manager was able to manage the maternal neonatal unit with the assistance of agency nursing staff with no disruptions. Ms Warnick indicated that she had contacted agencies but very few professional nurses want to deliver a service of this nature. Ms Warnick also informed the Committee that from 2016 the agency staffing nurses procured were not trained in comprehensive abortion care and this is contrary to the provisions of the Termination of Pregnancy Act (Act 92 of 1996). She added that she requested that the professional staffing nurse with experienced be transferred back, the manager and head of nursing refused to support her move back to the unit.
Ms Warnick further submitted that she had raised number of grievances, that have either dragged on or been ignored and in instances where her grievances were addressed they received an unfavourable outcome and she was informed they do not constitute as a grievance and hold no substance. In one instance she received an unfavourable outcome in relation to a grievance where an investigation was carried out without a hearing being held around the grievance. Ms Warnick also submitted that the management of clinical services at KDH is also poor. She cited the following incidents as indicative of the poor nature of the management of clinical services at the Hospital:
8.4.1 She investigated a case of gross negligence involving 2 professional staff nurses who were sleeping at entrance of labour ward and made a patient to sit on a chair and the patient lost her baby. She requested that the case be investigated but there were no consequences for staff nurses involved in the matter. She was further excluded from the disciplinary process. Another case happened on night duty, mother meant to undergo a caesarean and mid wife absent when baby born and anaesthetist had to attend to the baby;
8.4.2 Another case of alleged clinical negligence occurred during a night duty shift whereby a mother who had to be rushed to a theatre for C-section but because the midwife was absent when the baby was born, the anaesthetist was compelled to attend to the baby;
8.4.3 On 31 December 2018, the Hospital’s labour ward was closed because there was no staff on duty; and
8.4.3 Nurses being placed in wards without meeting the requisite qualifications and experience to properly execute the required or necessary duties.
In concluding her submissions, Ms Warnick, indicated that after she had raised some of these incidents she was victimised to an extent that she had to frequently see a psychologist, especially after receiving notices to attend disciplinary hearings.
8.5 Submissions by Mr A Ernstzen
Mr A Ernstzen (Mr Ernstzen), a former human resources manager at KDH, reiterated most of the oral submissions he made before the Committee on 8 November 2018. In his submissions to the Committee, Mr Ernstzen maintained that his dismissal in June 2018 was unfair more so because he was dismissed on the basis of recommendations that were made without him receiving a hearing. He also informed the Committee that the complaints and grievances he had raised, during his submissions made before the Committee in November 2018, had even been ignored by the MEC for Health. He also pointed he is being blamed for being incompetent in his arbitration hearing and the submissions he made before the Committee in November in 2018 also being used against him in the arbitration hearing as he is accused of speaking about the case even though he had only made submissions on the occupational health and safety concerns and the irregularities in the recruitment and selection processes of KDH without touching on the merits of his case. Mr Ernstzen also submitted that on 25 September 2018, the MEC for Health and the Chief Director for Health, receiving support from provincial legislature, issued notices of disciplinary hearings against various staff. He also stated that the recommendations made by PSC and DOL were being ignored by the management of KDH at the expense of the staff and patients of the Hospital.
In concluding his brief submissions, Mr Ernstzen submitted that there have been many other related incidents confirming the complaints against the senior management of KDH and he is willing to provide the Committee with more evidence to support his submissions.
8.6 Submissions by Ms T Konile-Mdekazi
In her brief submissions, Ms T Konile-Mdekazi (Ms Konile-Mdekazi), a former manager of the substructure, briefly reiterated some of the submissions she made on 8 November 2018. In this regard she informed the Committee that she was targeted for by the management of KDH for challenging the removal of funding from black NGOs as the substructure of health wanted to do away with the black NGOs. And since she challenged everything about not doing away with the black NGOs she was overlooked for senior posts in which she met the short listing requirements whereas people her junior were being appointed to such posts. She also mentioned that in February 2017 she was charged with driving a government car without authority and this charge ultimately led to her dismissal in December 2017. Also according to Konile-Mdekazi there is “syndicate” in the substructure, starting from the Director, Deputy Director and Labour Relations, which is trying to get rid of individuals that fight for the right course of action to be taken in the Department of Health.
With regards to her dismissal, Ms Konile-Mdekazi still believes that the dismissal process was unfair as she was not invited to any disciplinary hearing. She also added that that she had been serving the substructure for the past 14 years with a clean record. But the labour relations officer built a case around her dismissal without being given opportunity to state her side and failing to follow proper procedures before her dismissal.
9. SUBMISSIONS BY THE PUBLIC SERVICE COMMISSION
Submissions on behalf of the Public Service Commission (PSC) were led by Dr MS Lebello (Dr Lebello). In his submissions, Dr Lebello submitted that the presentation the PSC made before the Committee on 8 November 2018 covered the step by step investigation process that the PSC undertook, in investigating the complaints contained in the petition, as well as the overall findings and specific recommendations of the PSC Report. Dr Lebello further reiterated that the PSC investigating process involved visiting KDH and meetings with the management of KDH, Nehawu KDH Constituency Branch members, Metropol management and also involved meetings with the Western Cape MEC of Health. He also stated that the investigation has roped in different commissioners and he had led the process of the investigation from the national level. In his submissions, Dr Lebello, also informed the Committee that the PSC commissioner for the Western Cape had been appointed at the time of investigation but was not involved in the investigative process.
In his submissions, Dr Lebello refreshed the Committee that the PSC in its investigation and findings had come up with 12 recommendations. He indicated that if the KDH management and the Provincial Department of Health had implemented the formulated 12 recommendations, or even half of them, the current situation would have been very different. Dr Lebello also assured the Committee that the PSC executes its mandate without any fear and favour, and therefore PSC cannot and has not been involved in any cover up as it being alleged by the petitioner. He further assured the Committee that PSC is there to assist with good governance, administration and best practices. Lastly, Dr Lebello indicated that the complainant has a right if they disagree with the outcome of the investigative report of the PSC to elevate it.
- SUBMISSIONS BY THE DEPARMENT OF LABOUR
Oral submissions on behalf of the Department of Labour (DOL) were led by Chief Inspectors, Mr D Esau and Mr T N Stana. Both inspectors informed the Committee that following its last hearing on the petition two labour inspections were conducted, at KDH, on the 15 and 16 of November 2018. The purpose of the labour inspections was to establish whether KDH compiles with Occupational Health and Safety Act (Act 85 of 1993) and its regulations by perusing of documents such as, registers, risk assessments, fall protection plan, medical surveillance program, training records and incidents register. The Chief Inspectors also indicated that 38 people attended the inspection including Nehawu and the inspectors interviewed certain staff members.
In the submissions on behalf of the DOL Chief Inspectors also indicated that during the course of the inspection the following contraventions were noted and served on KDH 6 (six) prohibition notices; 4 (four) contraventions were identified and notice of contravention notices served; and 9 (nine) improvement notices were served for required improvement.
The Committee was further informed that on 23 January 2019, a further inspection was conducted. It was discovered that all the 6 (six) prohibition notices served on KDH have been compiled with and out of the 4 (four) contravention notices, 3 (three) have been compiled with and out of the 9 (nine) improvement notices served, one was outstanding. Following the inspection of 23 January 2019, there was a request from KDH for the extension of time, to comply with the two outstanding notices.
Below is report that covers some of the extensively admistrative information gathered and during the physical inspection contravention noted forming part of the feedback report:
- Occupational Health and Safety Act
The audit findings reported that the health and safety policy was available which was signed by the CEO in the health and safety file and displayed in the workplace. The organogram was available on the file and displayed for each ward.
With regards to the legal appointments the following observations have been noted:
10.1.1 All the required legal appointment as per OHS Act were done and appointment letters were readily available on the health and safety file at the workplace.
10.1.2 Forty – five (45) health and safety representatives are in possession of certificate of training and have appointed in writing with period of service.
10.1.3 First aiders; KDH was granted exemption letter in terms of Section 40 (1) by the Chief inspector from training first aiders.
10.1.4 Fire fighters were also legally appointed in writing and still waiting for certificate of training attendance register was readily available.
10.1.5 The GMR 2 was appointed in writing.
10.1.6 Incident investigator in terms of General Administrative Regulations 9 (2) was appointed in writing.
- Health and Safety Committee
KDH has 581 employees therefore the Health and Safety Committee is formed by 45 (fourty-five) health and safety representatives, the Occupational Health and Safety Nurse, Maintenance Manager and Infection Procedure Control Manager as the Chairperson of the Committee. The Health and Safety Committee meetings are held once in every month and the copies of minutes of the meetings were readily available for the year 2018, the last meeting was held on 17 October 2018. The Health and Safety representatives are conducting the OHS monthly checklist where all the inspections records are kept in the work place. Issues noted during inspection are discussed in the meeting, allocated to a responsible official to action and time frames for rectification of the issue specified.
10.3 Risk Assessment
KDH has conducted the risk assessment for workplace to identify potential hazards and risk however it was not complete other departments were not covered (improvement notices are issued). To be noted also, employees are informed and trained during induction training about the hazards precautionary measures put in place to minimise or eliminate them.
10.4 Occupational Hygiene
The infection control policy was available that outlines the preventative measures in order to prevent any cross contamination of hazardous biological agent (HBA). During the walk through inspections it was observed, at the theatre, that the Hospital is re-using the diathermy lead pencil by washing it then sterilizing it due to the reason that the Hospital has run out of stock, however, the pencil itself is meant to be used once and be disposed of. The infection control policy did not cover the process of re-use of the diathermy lead pencil hence a prohibition notice was issued.
In terms of waste disposal, it was submitted that KDH has brought machine that crushes and sterilizes medical waste except for human waste and turns it into homogeneous dehydrated granules, and this reduces the initial volume by 75% and is packed into bags straight from the machine. Employees does not have direct contact with the waste and permission was granted to the Hospital by the Department of Environmental Affairs in this regard. The machine supplier is Alloro Africa Enviro Services therefore the operators of the machine are employed by them and no KDH employee is working in this area. Averda South Africa collects and disposes the waste to Vissershok Depot.
The issue of insufficient ventilation either natural or medical in most areas of KDH was identified, therefore regular inspections and maintenance of them is critical and important especially in high risk areas. A contravention notice was therefore issued in this respect.
Proof of training and information for health and safety representatives and fire fighters was readily available. The medical waste crusher machine is operated by the employees from the supplier and they are in possession of training certificates as the operators. And the Hospital does conduct induction training to new employees about health and safety of the workplace.
10.6 Incident Investigation
KDH is reporting the incident in terms of Compensation for Occupational Injuries and Diseases Act (Act 130of 1993 (COIDA) by completing the WCL 2 form for injury and WCL 1 form for diseases for compensation. It indicated that a copy of Annexure 1 (one) as per General Administrative Regulations 9 was available, however it was observed that the form is not properly completed because they are remarks from the Chairperson of Health and Safety Committee and Health and Safety representatives. Moreover, KDH has failed to report the incidents for investigations, as some employees have contracted diseases like TB and an improvement notice was issued in this regard.
- Occupational Health Surveillance Programme
KDH is conducting vaccination for Hepatitis B to its employees, the last one was conducted in October 2018. The medical waste room was noisy due to the operation of the medical waste crusher machine, however there was no noise survey conducted in order to determine if employees may be exposed noise level of 85 Db and a contravention notice was therefore issued in this regard.
10.8 Contractor Management
KDH has several outsourced activities with the following companies Cleaning Services-Pronto Cleaners; Catering-Universal Catering; Security-Comwezi Security; Alloro Enviro Services- Waste crusher; and Waste disposal-Averda South Africa.
- Emergency Preparedness
The emergency plan was clearly displayed in the offices and in each ward and the assembly point was visible without any obstruction. The emergency exit doors are designed to open outwardly without any obstruction. With regards to the fire incident that happened on 24th April 2018 in the training room, the following was gathered:
10.9.1 On the first day of inspections, 15 November 2018, an inspector asked in the presence of everyone about the fire incident and no one knew about it. An inspector again before the walkthrough inspections asked about it again no one knew. Until the 16 November 2018, two officials confirmed that there was indeed fire incident in the training room and people were evacuated out of the building.
10.9.2 When the Acting CEO was asked in person, she said that according to the investigations conducted the fire was triggered by the faulty wires from the air conditioner that resulted into fire.
10.9.3 The service provider detected the root cause and replaced the faulty part and continued inspections will be conducted at least twice a year to prevent reoccurrence. The fire inspection certificate was not produced for the whole Hospital. An inspector requested the report on the fire, however no report was submitted and an improvement notice was issued. KDH conducted an emergency evacuation drill on the 6th March 2018 from different departments and according to the report it was successful.
The Hospital could not provide the certificate of fire test/inspection compliance for the whole Hospital, it only produced for Area D surgical ward first floor and lifts and improvement notice issued. The OHS Act and Regulations 85 of 1993 were also displayed in an accessible area for the employees.
10.11. Physical Inspection
10.11.1 Drinking water
The water and cold was tested and approved safe for human consumption for the whole KDH in terms of SAN 241.
Symbolic signs were conspicuously displayed at the workplace for chemical storage room emergency exits and fire extinguishers etc. Each ward has a notice board that clearly indicates the sister in charge, health and safety representative and fire fighters.
10.11.3 Personal Protective Equipment
During the walkthrough inspection it was noted that porters were not wearing any protective clothing as they receive patients with infectious diseases and are in contact with bleeding patients that have not been treated yet and a prohibition notice was accordingly served for the porters to use the proper protective wear. Employees allege that they struggle to get the masks to protect themselves against infectious disease, however, they are expected to work with the infectious patients, an employer sometimes runs out of stock sometimes.
10.11.4 Change Rooms Facilities and Environmental and General Safety
During the walkthrough inspection there was a note discovered that was displayed in the children wards inside the sluice reading as follow: “Dear Mothers, ensure that you close the bin lid properly after you throw away the diapers” and this note gives access to the public to enter a restricted area.
10.11.5 Prohibition Notice Issued
Each department has its own dining room for the employees with enough tables and chairs, however lockers for safe keeping for employee’s personal belongings were not sufficient, and an improvement notice was issued in this respect. Contaminated linen is kept in the sluice rooms from each ward thereafter it is collected and sent to Tygerberg Hospital for cleaning and sterilisation. The contaminated linen is not stored in different colour coded bags for easy identification and to avoid the spread of HBA, an improvement notice was therefore issued.
The MSDS in terms of HCSR 9a were readily available for each hazardous chemical. As regards the toilets in the maternity ward, the first one is working properly, however the roof is leaking, the second one is not flushing properly, an improvement and contravention notice was issued. During the walk through in the theatre department there was an unlocked deep freezer located in the passage way where they keep human medical waste. The Hospital was issued with a prohibition notice to keep the human waste in a separate lockable area. Further during the walkthrough inspections, it was noted that the sharp containers were not mounted on the wall in some wards, an improvement notice was issued. Some windows and the toilet cover were broken in some areas. There were roof leakages in the maternity ward and at the theatre, and in terms of environmental regulations for workplaces the employer should keep walls leak free, a contravention notice was issued. It was noted that KDH has too much stock laying around the passage ways which could result in serious injuries of trip and falls and poor housekeeping, an improvement notice was therefore issued.
The certificate of compliance with electrical installations for the whole Hospital which were issued in 2011 immediately before occupying the Hospital premises were readily available. KDH oxygen is supplied by Afrox and the oxygen tank is situated in the separate lockable area. All the ventilators gas cylinders are also serviced by Afrox and all the service records were perused. The boilers are in good working order, the certificate of registration in the Department of Labour and inspections records were available. The KDH hospital kitchen has gas installation used by the outsourced catering company, the certificate of conformity for gas installation in terms of pressure equipment regulations was available at the Hospital. The maintenance department indicated that the kitchen occupants are keeping records and inspectors are to schedule another inspection for the outsourced companies at the Hospital. Other medical machines are sent to Tygerberg Hospital to the Clinical Engineers for inspections and repairs and most importantly for calibration.
10.11.8 Other Legislation
KDH is in good standing with COIDA, all incidents are reported by the Hospital using the WCL 2 for injuries and WCL 1 for occupational disease. Employees were interviewed and they all confirm that the induction training was conducted and that the PPE was issued free of charge and that most employees were part of the one on one interviews that were conducted whilst walk through inspections was conducted. And that during the walk through inspections it was observed that the Hospital does not have enough space keep their stock, the stock was laying outside the hospital. Some of the stock is packed in the passages and in dining room areas. With regards to the new patient’s admissions the Hospital also struggles to get placement to the ward as the Hospital is always full, the Hospital resolve on mixing infectious and pregnant patients etc. without prior consultation with the infection control professional. KDH needs serious intervention in terms of creating more space as the congested space could lead to unexpected cross contamination of infectious disease.
- THIRD HEARING ON THE SIGOGO PETITION
The third and final hearing on the petition was held, on 20 March 2019 at Parliament.
- Committee Members and Officials
The following Committee Members attended the third hearing on the petition:
The third hearing on the petition was attended by the following Committee Members:
- Hon D L Ximbi, ANC, Western Cape (Chairperson of the Committee);
- Hon JM Mthethwa, ANC, Kwa-Zulu Natal,
- Hon H E Mateme, ANC, Limpopo;
- Hon G G Oliphant, ANC Northern Cape, and
- Hon B Engelbrecht, DA, Gauteng
The Committee Members present at the hearing on the petition were supported by the following Committee officials:
11.1.6 Mr N Mkhize, the Committee Secretary;
11.1.7 Adv. T Sterris, the Committee Researcher;
11.1.8 Mr S H Njikela, Senior Parliamentary Legal Adviser;
11.1.9 Mr M Nkwali, Researcher, Office of the NCOP Chairperson; and
11.1.10 Ms F L Lombard, Parliamentary Communications Officer.
The following representatives of the Nehawu Khayelitsha constituency branch and witnesses appeared before the Committee during the hearing:
11.2.1 Mr A Ernstzen, Nehawu Member and Witness; and
11.2.2 Ms T Konile-Mdekazi, Nehawu Member and Witness.
The following representatives of the Department of Labour appeared before the Committee at the hearing:
11.2.3 Adv. M Ntleki, Head of the Director General’s Office; and
- Mr. T N Stana, Chief Inspector.
12. SUBMISSIONS BY THE CONSTITUTIONAL AND LEGAL SERVICE OFFICE OF PARLIAMENT
The submissions by the Constitutional and Legal Service Office of Parliament (CLSO) were led by Mr S H Njikela (Mr Njikela), Senior Parliamentary Legal Adviser. In his submissions to the Committee Mr Njikela briefly outlined the legal proceedings the Committee had followed in issuing the summons against the WCDH in compelling it to appear before the Committee. And he further gave clarity on the powers of the Committee to issue the summons in this regard.
In his submissions, Mr Njikela also briefly provided a background on the refusal of WCDH to appear before the Committee. He reported that the WCDH had expressed an opinion that it does not believe that the Committee has the powers to request the WCDH to appear before it. And in arriving at this conclusion the WCDH placed reliance on the legal opinion which it apparently sourced from senior counsel. Mr Njikela also indicated that because CLSO had not been provided with a copy of this legal opinion and he is therefore not in a position to comment on it. Mr Njikela further submitted, that the WCDH, in refusing to appear before the Committee, had quoted extensively from the legal opinion provided by senior counsel and has reached this decision by means of a preferred interpretation given that it does not refer the Committee to any specific section of the Constitution that relates to section 69.
Further according to Mr Njikela the Constitution, specifically section 69(d), and the Rules of NCOP, specifically Rules 229 – 236 regulating the handling of petitions by the NCOP, give the Committee an open mandate to receive petitions and to call to account all officials (in particular section 92(2) of the Constitution), whom may have to answer to it. He elaborated, that the powers conferred on the Committee in the Constitution are clear and are not limited to legislative matters which is in contradiction with the legal reasoning relied upon by the WCDH.
Mr Njikela also indicated that subsequent to the summons being issued, the WCDH raised the two reasons for declining the Committee’s invitation. First, the WCDH submitted that it had been informed of the late serving of summons the day before the date of the hearing, citing that this was unreasonable. Second, when the summons was re-issued for the WCDH to appear before the Committee, the WCDH had difficulty in appearing before the Committee, citing that the primary responsibility of the NCOP is a legislative one and as such the Committee cannot assume any greater powers then those conferred on the NCOP. Mr Njikela added that as a result of the legal advice the WCDH had received, it then issued an application to court to interdict the Committee from enforcing such summons, indicating that it was notified, of the summons the day before the second hearing on the petition.
In concluding his submissions, he informed the Committee that it is not prevented from proceeding with the hearing despite the absence of the WCDH or in light of the notice of motion of the WCDH to review and set aside the summons. He further informed the Committee that it can conclude its consideration of the petition and formulate recommendations based on the evidence or submissions that have already been tendered during the past hearings. He also highlighted that the WCDH has been given opportunities to appear before the Committee to make submissions on the petition and for its reasons the WCDH has chosen not to appear before the Committee. Mr Njikela also pointed out that whether the Committee has the powers to summon the WCDH to appear before it, is a matter that still needs to be determined by a court of law He added that there is difference of legal opinion between Parliament and Western Cape Government regarding the powers of the Committee to summon the Western Cape Government.
Also in concluding his submissions, Mr Njikela reiterated that there is nothing preventing the Committee from proceeding with the hearing on the bases of the information that is already available to it to conclude its deliberations and make recommendations in relation to the petition. The matter that the WCDH has taken to court will be postponed sine die (without a date) and the matter will still need to go to court to debate the issue of whether the Committee has the powers to summon the Western Cape Government to appear before it.
13. SUBMISSIONS BY THE DEPARMENT OF LABOUR
Oral submissions on behalf of the Department of Labour (DOL) were led by Adv Ntleki (Adv. Ntleki) and supplemented by Mr D Esau.
In his submissions, Adv Ntleki, explained that the purpose of the DOL appearing before the Committee is for it to provide clarity on the role of inspectors and the mandate of the DOL in relation to unfair labour practice as there were concerns in the previous hearing about its role in assisting with matters related to unfair labour conduct. In this respect, Adv Ntleki submitted that having listened to submissions and analyzed the subject matter of the petition, two issues raised in the petition need to be clarified in relation to the DOL and its mandate. The first being the issues related to health and safety and second being the issue related to the allegations of unfair labour practices or unfair labour conduct on the part of the management of KDH. He also submitted that an element of the Occupational Health and Safety Act (Act 85 of 1993) (OSHA) and its regulations are also implicated in the petition, pointing out that the issues relating to OSHA were no longer merely allegations since a recent inspection by the DOL had proved that KDH is not compliance with certain elements of this legislation. He added that the allegations of unfair labour practices on the part of the management of KDH management, on the other hand, remained allegations because they had not been proved.
Further in his submissions Adv Ntleki notified the Committee that the DOL operates through labour inspectors and these inspectors are part of the Inspectorate Section, and are appointed in terms of section 63 of the Basic Conditions of Employment Act (Act 75 of 1975). And the inspectors perform certain functions within a specified legal framework. Adv Ntleki also submitted that inspectors cannot be involved in the resolution of disputes relating to unfair labour practice disputes. He further indicated that are there are certain institutions such as the bargaining council which deal specifically with dispute mechanisms agreed upon by the people within that sector and in this case the relevant bargaining council is the Public Health and Social Development Sector Bargaining Council. And once a bargaining council is involved, the role of DOL becomes limited. As such the role of inspectors is limited to the health and safety of the particular institutions it has been assigned to and there is no other institution that can actually exercise these powers except the inspectors under the directorship of the Chief Inspectors. He also explained that there is a legal document which initiates a legal process for labour inspectors called a compliance order.
In his submissions, he further reiterated that issues of unfair labour practices fall within the purview of the bargaining council and inspectors have no jurisdiction when it comes to issues of unfair labour practices. Adv Ntleki advised that where there is a dispute in a sector, the employee in that sector will need to refer the matter to that specific bargaining council then a dispute can be declared. In practice the process starts with addressing the issue of unfair labour practices with the employer and the employee does this by submitting a grievance, the grievance gets investigated (depending on the outcome). If the grievance is unresolved, it is then referred to the executive authority and depending on the outcome of the executive authority and if the employee feels the matter remains unresolved, the matter will then be referred to the bargaining council by the employee. And during this whole process the labour inspectors are not involved and as they are not mandated by law to be involved. Adv Ntleki also pointed out there are also other institutions that are created to actually deal with disputes around unfair labour practices such as the Commission for Conciliation, Mediation and Arbitration (CCMA), Public Service Commission (PSC) and the Labour Court. However, the Labour Court can only be approached when all the other processes have been exhausted.
In concluding his submissions, Adv Ntleki submitted that it is difficult for the DOL to get involved in issues of unfair labour practices since it does not have the powers to investigate such conduct. However, he indicated that the DOL does not send people away when they come to it for assistance in relation to issues of unfair labour practices but it instead advises on the processes that must be followed in order to get the issues resolved by the relevant institution. He gave assurance that he will try to communicate with the relevant bargaining council, and at the same time indicating that it must be noted that the bargaining council is an independent institution and that the DOL is not mandated to conduct oversight over it, in an attempt to find out whether there has been any matter from KDH referred to the bargaining council and where the matter has been referred to the bargaining council, to also find out what has been done so far. Further in concluding his submissions, Adv Ntleki indicated that it will be important for KDH to have referred the issues relating to unfair labour practices to the relevant bargaining council as there is a process that is prescribed on referring matters to the bargaining council. And the DOL does not play a role in these processes. He also advised that the Committee invite the relevant bargaining council and request is to explain what it has done in relation to resolving the unfair labour practice issues raised in the petition.
In his brief supplementary submissions to the Committee, Mr Esau submitted that after the hearing of the 28 February 2019, he requested the inspectors to go back to KDH and investigate the issues around the building that nearly caught fire and to also inspect the electrical installations at KDH. The feedback report showed that there was compliance after the incident and also proper electrical installation. He further submitted there was an approved inspection of authority specifically on the electrical side and they had received confirmation from an electrical expert who inspected the electrical installation at KDH and declared it safe and issued a certificate of compliance in this regard.
Mr Esau also informed the Committee that a risk assessment is being done, which will outline the risks at KDH and interventions in place to deal with such risks. He also explained that inspections are carried out in two ways. First, during an inspection, the inspectors can request certain documents which are prescribed by law and expected to be kept by employer for auditing purposes. Second, an inspection can take the form of a walk through and this type of inspection can be done by, for instance, checking on the location of fire extinguishers at an institution and if they are not in the right place the inspector will note it as non-compliance or contravention in terms of OSHA. He also indicated that during a walk through inspection, inspectors have an obligation to interview employees and to be accompanied by the safety officers residing within the institution itself and trade unions.
14. SUBMISSIONS BY MR A ERNSTZEN
Mr A Ernstzen (Mr Ernstzen), a former human resources manager at KDH, reiterated most of the oral submissions he made before the Committee on 8 November 2018 and 28 February 2019. He also made brief submissions in relation to the fire that took place and the electrical compliance certificate issued following the fire in question. He submitted that he has seen a letter issued by the Fire Chief setting out seven (7) to nine (9) issues that point to non-compliance on the part of KDH and the cut off dates for these issues to be addressed and these issues were never addressed despite the cut-off date at the end of November 2017. He further submitted that at some point there was a fire near one of the training rooms for staff members and at that time there was no fire training and fire marshals or evacuation process. Mr Ernstzen concluded his submissions in stating that the management of KDH had been negligent in taking time to resolve the issues highlighted by the Fire Chief and indicated he had learnt from other KDH employees that they have not seen the electrical compliance certificate reportedly issued after the fire.
15. OBSERVATIONS AND KEY FINDINGS
The Committee made the following observations and key findings in relation to the various submissions made in relation to the subject matter of the petition:
15.1 The Committee noted the refusal by the Western Cape MEC for Health, Head of the Department of Health of Western Cape, Acting Chief Executive of KDH and Substructure Office of KD to attend all of the three hearings on the petition on grounds that the Committee is acting outside of the powers afforded to it by the Constitution.
15.2 Nehawu contends it has followed all the correct procedures before submitting a petition to the NCOP but there has been no intervention from the MEC of Health.
15.3 In its Report, the PSC found that there was merit in most of the allegations made by Nehawu however, the severity and veracity of some of the conclusions drawn by Nehawu were contestable.
15.4 According to the Department of Labour, some of the individual cases raised in the petition are purely administrative in nature and it is not clear if all the labour processes were followed and lead to the cases being referred to the bargaining council or the Commission on Conciliation Mediation and Arbitration or even the Labour Court, were followed.
15.5 The Department of Labour can play a direct role in the resolving two of the issues raised in the petition, namely the issues of employment equity and occupational health and safety. But the department cannot investigate issues of unfair labour practices since it does not have the powers to investigate such matters.
15.6 There are other institutions that are created and mandated to deal with disputes relating to unfair labour practices such as the Commission for Conciliation, Mediation and Arbitration, Public Service Commission and the Labour Court.
15.7 During the inspection conducted by the Department of Labour, it was discovered KDH was not in compliance with certain elements of the Occupational Health and Safety Act (Act 85 of 1993) when it recently conducted an inspection at the institution.
15.8 According to CLSO, the Committee may proceed with the hearing on the petition on the basis of the information that is already available to it and that will enable it to conclude its deliberations on the petition and make suitable recommendations.
15.9 The issue of whether the Committee has the powers to summon the WCDH to appear before it is a matter that still needs to be determined by a court of law.
Following extensive deliberations on the submissions made during the hearing on the petition, the Committee recommends as follows:
- The Committee strongly recommends that Parliament’s CLSO provide the Committee with a thorough legal opinion relating to the refusal by the Western Cape MEC for Health, Head of the Department of Health of Western Cape, Acting Chief Executive of KDH and Substructure Office of KD to attend all of the three hearings on the petition on grounds that the Committee is acting outside of the powers afforded to it by the Constitution.
- The Committee recommends that Parliament’s CLSO assist the Committee in identifying processes, such as commissioning an inquiry, in order to conduct further forensic investigations into public health care facilities in the Western Cape.
- The Committee recommends that Parliament’s CLSO look into the apparent contradictory and unethical conduct of the Office of the State Law Adviser. The said State Law Adviser acted for the Committee when a subpoena was served to secure attendance of senior officials from the Western Cape Department of Health while also issuing an urgent interdict on behalf of the senior officials of the Western Cape Department of Health. The CLSO should recommend a way forward for the Committee.
- The Committee recommends that during the 6Th Parliament the Select Committee on Social Services prioritie conducting oversight at all hospitals within the Western Cape.
- The Committee recommends that during the 6Th Parliament the Select Committee on Public Accounts (SCOPA) call the KDH management to account on the mismanagement of funds at the Khayelitsha District Hospital.
- The National Department of Health is to conduct a thorough forensic investigation into the complaints raised in the petition, in particular the complaints relating to the mismanagement of funds and corruption on the part of the management of Khayelistha District Hospital (KDH) and the harassment, victimisation, bullying and intimidation of staff members by the management of KDH.
- The Office of the Health Ombud is to commission a thorough forensic investigation or Commission of inquiry aimed at conclusively determining the number of neonates, children and adult patients who have died, often due to negligence and use of inexperienced staff within the KDH.
- The House is to assist the petitioners to refer the complaints relating to the poor provision of health care and treatment; the poor and unsatisfactory management of adverse incidents; and the poor state of psychiatric care at KDH to the Office of the Health Ombud for further investigation.
- The South African Human Rights Commission must investigate the allegations of human rights abuse that have been levelled against KDH management.
- The Department of Labour (DOL), through Adv. Ntleki, is to assist the petitioners to bring the complaints relating to unfair labour practices (on the part of the management of KDH) to the Public Health and Social Development Sector Bargaining Council for their resolution.
- The DOL is to investigate the complaint of poor employment equity at KDH (i.e. the complaint that the management of KDH does not reflect the demographic composition of the community that the Hospital serves) in order to determine if the Hospital complies with the with the prescripts of the Employment Equity Act (Act No. 55 of 1998).
- The DOL is to conduct regular health and safety related inspections at KDH in an effort to ensure it complies with the relevant health and safety legislation as a public health facility.
- The National Department of Health should take over at the KDH until all the issues within the KDH have been resolved.
- The National Department of Health, Department of Labour and Health Ombud to provide the Committee with a progress report on recommendations 16.1 to 16.12 above within 60 (sixty) days of the tabling of this Report in the House.
Report to be considered.
No related documents