The former CEO of Fort England Hospital is fighting to be reinstated, claiming that he was just the latest in a long line of hospital managers moved from their positions after they angered labour unions in the province’s hospitals.
Dr Roger Walsh’s advocate, Sheldon Magardie, argued in the Labour Court before judge Andre van Niekerk that the CEOs of Livingstone Hospital, Dora Nginza Hospital and Elizabeth Donkin Hospital had all been moved previously by superintendent-general Thobile Mbengashe after they had a fallout with labour unions.
Current Livingstone Hospital CEO Thulane Madonsela and his entire management team have recently been placed on special leave after union protests at the hospital.
“We cannot now become subject to the tyranny of the mob,” Magardie said.
But advocate Tembeka Ngcukaitobi, representing the Eastern Cape health department, said it was a complex decision Mbengashe had to take.
“It wasn’t just a transfer because the unions said so ... my learned friend says legality should trump everything but instability [at the hospital] was a threat on its own,” he said.
“Pragmatism and legality were intertwined in this case.”
Walsh has asked Van Niekerk to set aside the decision to have him moved to a different position.
In court papers, he accuses the health department’s top management of bowing to the “unlawful” demands of unions, breaking the law and ignoring investigative reports.
His case proceeded to oral argument on Monday after the parties failed to reach a settlement despite being given a month to do so.
Walsh claims that the department unlawfully capitulated to various trade union members who sought to oust him as the CEO of the hospital.
Fort England is a high-security facility in Grahamstown looking after 300 patients with mental health disorders.
It also houses a national maximum security unit, looking after dangerous and difficult state patients.
It is the only hospital in the country where mental assessments of patients accused of sexual violence are done.
Walsh was appointed as the hospital’s CEO in October 2013 but shortly afterwards several trade unions embarked on industrial action, demanding he be removed.
According to the papers, this was triggered by measures Walsh put in place to address, among other things, irregular leave and staff members running businesses from the hospital.
Magardie argued that Mbengashe’s decision was irrational and based on the unlawful actions of the unions.
He said in court papers that Mbengashe himself said the “unions were not happy” when investigative reports exonerated Walsh.
Magardie pointed out that an interdict could have put an end to the unlawful conduct by the unions at the time that Mbengashe decided to have Walsh transferred.
“But Mbengashe acceded to demands from unions that the interdict must be withdrawn.
“There is nothing in here indicating that this was a decision maker keeping an open mind,” Magardie said, referring to the bulky court files containing the affidavits in the case.
He said that while the Public Services Act allows for an official to be transferred in the public interest, it cannot be argued that this could justify the removal of someone who had done nothing wrong.
“What if the next victim is forced out because of sexual orientation or race?” he said.
Ngcukaitobi said it was not true that two investigative reports into allegations made by the unions exonerated Walsh.
“There are no angels and devils here. It is true that the unions are at fault,” he said.
“They were a belligerent bunch, but Walsh is also to blame. He came to court with a self-serving affidavit. He was autocratic and effectively a bully,” Ngcukaitobi said.
Mbengashe was well within his rights to transfer Walsh in the interest of patients, the public interest and own interest, he said.
“There was a demand from the unions coupled with the threat to make the hospital ungovernable.
“There were serious complaints from unions about the way they were being treated.
“It was in the best interest of patient care, the employer and the employee for him to be transferred,” Ngcukaitobi said.
Judgment was reserved.