Baylor College of Medicine v Thabiso Ralenkoane and Another (LC/REV 100 of 10) [2012] LSLC 29 (16 November 2012)

IN THE LABOUR COURT OF LESOTHO LC/REV/100/10 LC/REV/100/10 HELD AT MASERU In the matter between: BAYLOR COLLEGE OF MEDICINE APPLICANT and 1ST RESPONDENT THABISO RALENKOANE DIRECTORATE OF DISPUTE PREVENTIONA 2ND RESPONDENT AND RESOLUTION JUDGMENT Date: 16/11/12 Review of an arbitral award - On the basis that the arbitrator failed to consider relevant evidence - in that the standard letter that was used to track defaulters breached patient’s confidentiality - The standard letter was apparently designed as a follow-up tool on HIV/AIDS patients - In this particular case such letter was left at a neighbour’s house - The employee was subsequently dismissed for breach of confidentiality - DDPR found the dismissal unfair and ordered compensation - Application for the review of this finding - The Court finds the grounds advanced by the applicant not reviewable. 1. This dispute arises from the dismissal of the 1st respondent from the employ of the applicant on 9th December, 2009. 2. The circumstances surrounding this dismissal are that the 1st respondent whilst holding the position of Social Worker instructed a field tracker to deliver a standard letter bearing the applicant’s letterhead and logo to a parent of a child who was applicant’s patient. The field tracker, left the said letter which was not sealed at a neighbour’s house. The child’s mother lodged a complaint regarding this with the applicant. The 1st respondent was subsequently dismissed on the basis that the said standard letter, which he had purportedly designed, breached the patient’s confidentiality. It is common cause that Baylor College of Medicine is a special institute dealing specifically with HIV infected individuals. The applicant contended that the fact that the letter bore the applicant’s logo and name clearly reflected that the patient received HIV/AIDS related services offered at the clinic. Their case was that the 1st respondent had not only breached the Oath of Confidentiality he had been sworn to but also Section 13:7 of the applicant’s Conditions of Employment. 1st respondent’s defence had been that the standard letter had been designed in good faith. 3. The 1st respondent challenged his dismissal before the Directorate of Dispute Prevention and Resolution (DDPR) per referral No. 0243/10. The latter made a finding in favour of the 1st respondent. The rationale behind the finding was that the letter could only be in breach of confidentiality if it expressly disclosed the patient’s HIV status. The DDPR therefore found the applicant to have failed to adduce evidence to show that the 1st respondent contravened Section 13: 7 of his conditions of employment dealing with breach of confidentiality. The dismissal was found to have been substantively unfair. The applicant is before this Court to have this finding reviewed, corrected and set aside. 4. The crux of the review application is that the learned Arbitrator erred and misdirected herself by holding that a written form from Baylor College of Medicine, a well-known pediatric HIV/AIDS treatment Centre in Lesotho, did not breach a patient’s confidentiality because it did not reveal the patient’s HIV status. In his founding affidavit the Senior Administrator Dr Seeiso Pii, averred that the document disclosed information written thereon to anybody who may read it. 5. In reaction to the review application, 1st respondent’s Counsel raised two points in limine. By consent of both Counsel it was agreed that the points in limine be dealt with together with the merits. The first objection related to prescription. 1st respondent’s Counsel contended that the DDPR award was delivered on 21st October 2010 when review proceedings were only filed on 7th December, 2010 in contravention of Section 228F (1) (a) of the Labour Code (Amendment) Act, 2000. This Section enjoins a party seeking to lodge a review application to do so within thirty (30) days of the handing down of an award. Secondly, he argued that the proceedings constituted an appeal disguised as a review. As far as he was concerned applicant’s founding affidavit clearly reflected that the applicant was merely unhappy with the decision of the learned Arbitrator, a matter over which this Court has no jurisdiction. The Court shall deal with the points in limine seriatim. PRESCRIPTION In answer to the objection relating to prescription the Court was not furnished with proof of when the applicant received the DDPR award. The applicant alleged that they only received the award on 18th November, 2010. This evidence was not controverted by the 1st respondent. It is therefore dismissed. WHETHER THE MATTER IS REVIEWABLE 6. 1st respondent’s Counsel contended that the application is misconceived as it seeks to challenge the decision of the learned Arbitrator. He submitted that it is an appeal disguised as a review in that the applicant is not complaining about any illegality or irregularity in the proceedings but is challenging the learned Arbitrator’s finding. The bone of contention in this dispute was whether the standard letter that the 1st respondent had designed as a way of tracking down or following up on the defaulters breached patient’s confidentiality. The DDPR held that it did not as it did not disclose a patient’s HIV status. The applicant argued in essence that the fact that the letter reflected that it emanated from Baylor College, bore its logo was enough for anybody seeing it to conclude that its addressee was receiving their services it being an institution that provided HIV/AIDS related services. 7. Applicant’s Counsel submitted that the learned Arbitrator had ignored the evidence that was tendered before her which pointed to the fact that a patient’s confidentiality had been breached. These according to Counsel were exhibit “A” (Oath of Confidentiality) and “C” (the standard letter/form). It however emerged in evidence that the standard letter or form was actually designed by one Theresa and the 1st respondent had merely translated it into Sesotho. Thus 1st respondent’s Counsel submitted that his client could not be held liable for acts of other employees. He further submitted that it was Maqhama, the field tracker, who left the letter at the neighbour’s place. As far as he was concerned Maqhama was on a frolic of his own as he was never instructed to leave the letter with the neighbour. The letter is very brief and invited the addressee to report at Baylor. It indeed bore the applicant’s logo. 8. DDPR awards are only subject to review and not appeal. Section 228F (3) of the Labour Code (Amendment) Act 2000 (as amended in 2006) provides that an award may be set aside “on any grounds permissible in law and any mistake of law that materially affects the decision.” In Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141 at 154 the Court held that “judicial review is concerned, not with the decision, but with the decision-making process”. This was echoed by Booysen J., in Anchor Publishing Co., (Pty) Ltd v Publication Appeal Board 1987 (4) SA 708 (N) at 728 C who held that “it is important, when considering a matter such as this, to bear in mind the main distinction between an appeal and a review, and that is that the Courts will on appeal set aside a decision when it is satisfied that it was wrong on the facts or the law whilst judicial review is in essence concerned with the decision-making process.” It is not the arbitrator’s decision that is taken on review, but the manner in which it was arrived at. 9. The decision-making process could be subject to review on the following grounds (Herbstein & Van Winsen on The Civil Practice of the Supreme Courts of South Africa 4th ed., 1997 at p.929); a) absence of jurisdiction on the part of the Court; b) interest in the cause, bias, malice or corruption on the part of the presiding officer; c) gross irregularity in the proceedings; and d) the admission of inadmissible or incompetent evidence, or the rejection of admissible or competent evidence. 10. Reviewable irregularities have over time been clearer. They came out clear in Jo- burg Stock Exchange v Witwatersrand Nigel Ltd 1988 (3) SA 132 (AD) at 152 C-D per Corbett JA., as being; Proof, inter alia that the decision was arrived at arbitrarily or capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose; or that the [Commissioner] misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or that the decision of the [Commissioner] was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter in the manner aforestated. The case has been cited with approval in a number of decisions of this Court including Pick ‘N Pay (Pty) Ltd v Mokone Mokone & the DDPR LC/REV/97/19 (www.lesotholii.org) and Letséng Diamond Mine (Pty) Ltd v Setenane Elliot Libe & the DDPR LC/REV/57/11 (www.lesotholii.org). 11. As aforementioned, applicant’s Counsel’s ground for review was that the learned Arbitrator failed to take into consideration evidence that was before her, that is, that the 1st respondent had breached a patient’s confidentiality through the standard letter/form that was used to track defaulters. 12. In our view the learned Arbitrator did consider the evidence that was before her and arrived at the particular decision. She therefore applied her mind to the case that was before her. We as a reviewing Court could perhaps have come to a different conclusion on the same set of facts, but as a review forum we cannot substitute the learned Arbitrator’s decision simply because we could have reached a different conclusion when we have not identified any irregularity in the decision - making process. The Court appreciates the addressee’s fury that the letter which was not sealed was left with the neighbour who is likely to have deduced that she or her child was using applicant’s services, but the issue is: who was responsible for this act? 1st respondent never instructed the field tracker, Maqhama, to leave the letter at a neighbour’s place. Again, the addressee could have been summoned to Baylor for a number of reasons including to collect HIV/AIDS test results which could have turned out negative. The Court finds the matter not reviewable and is therefore not persuaded to disturb the DDPR award. The award therefore stands, and it is to be complied with within thirty (30) days of the handing down of this judgment. THUS DONE AND DATED AT MASERU THIS 16TH DAY OF NOVEMBER, F. M. KHABO DEPUTY PRESIDENT P. LEBITSA MEMBER R. MOTHEPU MEMBER FOR THE APPLICANT : ADV., MABULA FOR THE 1ST RESPONDENT : ADV., LETSIKA I CONCUR I CONCUR