Nehawu ‘still studying’ scathing judgment in PPE matter

The National Education, Health and Allied Workers’ Union (Nehawu) was yesterday “still studying” a scathing judgment in which Labour Court Judge Benita Whitcher hauled the union over the coals for dragging the health department to court for a case that was “misconceived in fact and law”.

The judge slammed Nehawu at the weekend when she handed down her reasons for forcing the hearing of – and then dismissing – the case.

Nehawu spokesperson Khaya Xaba said yesterday that the union would communicate its response at a later stage.

Earlier this month, Nehawu raced to court claiming hospital workers on the frontlines of the fight against Covid-19 were not being provided with Personal Protective Equipment (PPE).

Whitcher heard the case last Wednesday, after refusing Nehawu’s last-minute bid to withdraw it.

“The allegations raised by the [union], by their very nature and at this particular time, deserve evaluation and determination so that all parties to this dispute – and the public at large – are not left with an impression that a ‘technicality’ interrupted the truth emerging on whether doctors and nurses at public facilities have sufficient PPE,” she explained in her reasons.

Ultimately, though, the judge found the union had failed to produce any evidence to support its claims.

“This court (and the [department]) acknowledge that all health workers remain in the frontline of the fight against Covid-19 [and, I dare say, heroically so] and fully agree that they are entitled to PPE so that they are not exposed to avoidable risks,” she said.

“However, this is a legal dispute and the [union] provided no legal or evidentiary basis for its case”.

On the other hand, she found Health Minister Zweli Mkhize, together with his MECs, had provided “comprehensive data and documentary evidence” to disprove the claims.

“[Nehawu’s] allegations of PPE shortages in hospitals that unduly expose its members to Covid-19 infection weigh up poorly against the [department’s] denials,” she said.

In a rare move in the Labour Court, the judge slapped the union with a costs order.

“In my view, under circumstances of national disaster, everyone is called upon, for the good of society as a whole, to cooperate in bringing the pandemic under control,” Whitcher said.

“In short, a new value system on what constitutes acceptable behaviour has been thrust upon us all,” Whitcher said.

She said the court could not “dictate that a spirit of cooperation must imbue how parties conduct themselves or express or advance their interests,” but that it could “adjust the standard of what constitutes frivolous and vexatious conduct in litigation”.

“In this way, those who elect to pursue obviously untenable legal points, use the court process as part of other power-plays, unnecessarily consumes the resources of their opponents or make allegations they cannot substantiate – know that they run the risk of a cost order thereby should they lose,” she said.

– bernadettew@citizen.co.za

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