Department of Health KZN v Public Servants Association of South Africa and Others

On 17 February 2009, two employees of the Department of Health KZN - Pillay (an Intermediate Life Support Paramedic with 15 years service) and Tembe (a Basic Ambulance Assistant with 4 years service) - were requested to transport a female patient from Inkosi Albert Luthuli Central Hospital in Durban to Murchison Hospital in Port Shepstone. The patient could not walk and was transported on a stretcher in the patient compartment of the ambulance. As they approached Port Shepstone, Pillay received a call from his mother saying his son was having an asthma attack. Instead of proceeding to Murchison Hospital, Pillay drove to their base/depot. The employees knocked off without delivering the patient to Murchison Hospital. The patient was later discovered alone in the patient compartment of the ambulance at the base by another crew member. The employees were charged with three counts of misconduct: (1) neglecting the patient alone in the patient compartment from Durban to Port Shepstone; (2) abandoning the patient at Port Shepstone by parking the ambulance with her inside and knocking off; (3) permitting one crew mate to sit in front whilst having a patient on board. The employees disputed the charges, claiming that Tembe sat with the patient in the patient compartment during the journey, and that they properly handed over the patient to supervisors Stoffels and Ms Khumalo at the base before knocking off. The employer's witnesses testified that no proper handover occurred and both employees were observed sitting in the front of the ambulance. The Disciplinary Inquiry found them guilty and they were summarily dismissed.

• Whether the arbitration award reviewing the fairness of the employees' dismissal was reasonable and should stand
• Whether the commissioner properly dealt with two mutually destructive versions of events
• Whether the commissioner correctly assessed credibility and probabilities
• Whether the employees properly handed over the patient before knocking off
• Whether the patient was left unattended in the patient compartment during transport
• Whether the employees abandoned the patient
• Whether dismissal was an appropriate sanction
• What is the proper standard of review of arbitration awards under section 145 of the Labour Relations Act

The appeal was upheld. The Labour Court's judgment was set aside and replaced with an order dismissing the review application. There was no order as to costs in the appeal, with each party to pay its own costs.

The binding legal principles established are: 1. The test for reviewing arbitration awards under section 145 of the LRA is whether the decision is one that a reasonable decision-maker could not reach - it is not whether the reviewing court would have reached a different decision. 2. When an arbitrator is faced with two mutually destructive versions, the proper approach is to assess: (a) credibility of witnesses; (b) reliability of evidence; and (c) probabilities, then determine whether the party bearing the onus has discharged it on a balance of probabilities. 3. Irregularities or errors will only vitiate an award if they are of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision-maker could reach on all the material before them. 4. Material errors must be assessed by their distorting effect on the arbitrator's conception of the enquiry, delimitation of issues and ultimate outcome. If a different outcome would have resulted but for the error, it will be material and point to an unreasonable result. 5. Where an arbitrator correctly identifies the nature of the dispute, applies the proper legal test, considers the evidence including credibility and probabilities, and reaches a conclusion supported by the evidence, the award should not be set aside even if the reviewing court might have preferred a different outcome. 6. In healthcare settings, abandonment of vulnerable patients is serious misconduct that can justify dismissal even for employees with long service, as it fundamentally compromises patient rights to dignity and proper healthcare.

The Court made several observations beyond the strict ratio: 1. The Court noted that the conduct of the employees was "unacceptable and unprofessional" and that they "abandoned a vulnerable sick elderly woman in an ambulance so that they could knock off." 2. The Court observed that the treatment the patient received was "inhuman and degrading" and that the issue extends beyond trust relationship breakdown to encompass fundamental patient rights: "their conduct compromised a patient's rights to dignity and proper health care." 3. The Court commented on the delay in producing the judgment, explaining that Judge Ndlovu JA who heard the appeal and was nominated to write the judgment unfortunately passed away before completing it. The Court tendered its apology to the parties for the lengthy delay. 4. The Court noted it would have been helpful if video footage existed from various locations (IALC Hospital, tollgate, base) but found the absence of such evidence did not prejudice the employer given other corroborating evidence. 5. The Court made observations about witness credibility, noting Mbonwa's evidence was "suspect" as he was an off-duty ambulance attendant who claimed to observe detailed matters that should have been observed by the security guard, and his version was never put to the security guard in cross-examination.

This case provides important guidance on the scope of review of arbitration awards under section 145 of the Labour Relations Act. It confirms that review is restricted to defects defined in the Act (misconduct, gross irregularity, exceeding powers, improper obtaining of award) and is not as broad as PAJA review. The test is whether the decision is one a reasonable decision-maker could not reach. The case demonstrates how courts should assess arbitrators' handling of disputes involving mutually destructive versions, emphasizing that if the arbitrator properly identifies the nature of the dispute, considers credibility and probabilities, and reaches a decision supported by the evidence, the award should not be set aside even if another decision-maker might have reached a different conclusion. The judgment also reinforces the importance of proper patient care in healthcare settings and confirms that dismissal can be appropriate for serious breaches even with long service where the conduct fundamentally compromises patient rights and safety. It illustrates that reviewing courts must not substitute their own view but must assess whether the decision-maker's approach and conclusion fall within the range of reasonable outcomes.