Disgruntled doctors had little alternative when it came to airing their grievances (cont.)
The debate on the Health Department strike demands further consideration, as some arguments show fundamental flaws in determining the obligations and accountabilities of the employment relationship.
The basis of this relationship is mutual confidence and trust between employers and employees.
Pay (reward for contribution) is only one of the elements that may be used to judge the success or otherwise of this relationship. Consequently, if pay was the only reason for the strike, then doctors used the wrong remedy, and are in violation of their professional obligations under the Hippocratic Oath. But it was not.
The Department of Health exists to provide the constitutional right of all citizens to basic health care as an essential service. This binds both the employer and employees to certain operational requirements, which include financial management, professional expertise, control/governance structures, and the provision of the "tools of the trade" or operational infrastructure.
Doctors can only "deliver" on the expertise requirement as dictated by the rules and standards of their profession and their obligations to the requirements of the Hippocratic Oath.
In creating operational circumstances that will "deliver" an effective essential service, in addition to providing adequate operational resources, the employer needs to comply with the requirements of the Basic Conditions of Employment and Occupational Health and Safety acts.
In creating the control/governance structures, the employer has chosen the collective bargaining process governed by the Labour Relations Act. Within this process, the use of collective mass action is a "remedy" when the employment relationship becomes dysfunctional.
The collective bargaining process, by nature, is a protracted decision-making process, and the employment relationship is conducted remotely through a bargaining council comprising employer and employee representatives.
Classifying a service as being essential dictates that there must be no break in the service offering because of the urgency of occurrences that such service covers. It also means that the reaction time to such occurrences must be immediate. In health care, where lives are at risk, this often means one-patient-one-doctor at a time - and this is a foundational operational requirement.
Clearly, the doctors have been long suffering in their appeals to make their employer aware of the operational requirements of an essential service and also the need to comply with the legislated requirements regarding working conditions - without success.
In South Africa, history has proved that collective mass action has produced results.
The government, as the employer, has chosen the collective bargaining process to conduct its employment relationship with public servants.
Within the Health Department, the employment relationship has clearly become dysfunctional, and unfortunately, within the dynamics of the current mass action, there is no place for genteel nuances of correct or incorrect legal remedies.
The doctors, as one party to the employment relationship, have reached the stage where they feel that the integrity of professional health-care standards is at risk because of the non-performance of their employer.
But they cannot carry the full accountability for the failure of this constitutional obligation.
Consequently, they are left with no alternative but to use whatever action is available to highlight the state of the delivery of health care as an essential service, because labour law provides for employers' actions to be challenged only in terms of the unfair labour practice provision.
Daan Groenewald
human relations consultant
July 2009