Khayelitsha District Hospital chief executive, David Binza’s application to the Labour Court to uplift his precautionary suspension has failed for lack of urgency.
The court found that Binza has other remedies available at his disposal while he forges forward with an unfair labour practice claim against the provincial Department of Health and Wellness.
Binza was placed on precautionary suspension with full pay on August 27 as the department investigated allegations of misconduct against him in terms of clause 2.7 of the Senior Management Service Handbook.
Binza argued that his continued suspension subjected him and his family to psychological stress and trauma and diminished his dignity.
Democratic Nursing Organisation of South Africa (Denosa) spokesperson Sabelo Ntshanga confirmed Binza would be sitting with the Public Health and Social Development Sectoral Bargaining Council (PHSDSBC) on Wednesday.
“The urgent application to Labour Court was not dismissed but redirected to use PHSDSBC. The matter is still subjudice,” said Ntshanga.
Responding to the judgment, health department spokesperson Abulele Dyasi, said: “The Department notes the Labour Court's ruling on the matter with Mr Binza. The Department cannot share information and details regarding an ongoing internal investigation and related disciplinary steps before the matter has been concluded.”
The department argued that Binza was implicated in misconduct in several disclosures made by a whistle-blower, who he had allegedly threatened in a meeting.
During the investigation, several witnesses had come forward to assist the investigation, after he was suspended.
In the circumstances, the department was concerned that Binza’s presence at work could possibly undermine and compromise the investigation.
According to the suspension terms, any member who is suspended or transferred as a precautionary measure must undergo a disciplinary hearing within 60 days.
Following his 60-day precautionary suspension, on October 26, the suspension period officially came to a close. Subsequently, Denosa informed the department of health that Binza intended to return to work on October 30, asserting that the suspension had lapsed.
The department advised Binza not to report for duty on that date as they intended to extend his suspension.
Binza attended a hearing on his precautionary suspension on November 7.
Labour court Judge Robert Lagrange’s judgment noted that since the 60-day period of suspension had already lapsed by the time a bargain council hearing was convened, the suspension could not be extended because it no longer existed.
“Denosa followed up on this ruling, by demanding that Binza be allowed to return to work.
“The department responded that given the seriousness of the allegations and that the investigation was still incomplete, it had decided to suspend him again pending further investigation and the finalisation of the disciplinary proceeding,” the judgment noted.
According to the submissions, Binza is confident that a ruling from the bargaining council on his unfair labour practice claim over his suspension will be in his favour.
“Coming to the balance of convenience, just as it is true that any embarrassment or stress suffered of being suspended cannot be completely addressed by an arbitration in due course, neither can any risk of interference by Binza be remedied after the fact, if he is allowed to return. The fear of interference does not appear to be groundless.
“In the circumstances, I am not persuaded the balance of convenience favours Binza,” Judge Lagrange said.
Cape Times