- The Labour Court overturned the dismissal of four Limpopo nurses, finding they were unfairly let go after refusing to return to a clinic where they faced threats and trauma following a baby’s death.
- The nurses provided medical evidence of their stress and safety fears, acting in good faith through their union, but the Department and MEC failed to accommodate their concerns.
- The court ruled the MEC’s refusal to reinstate them was irrational and ordered their immediate return to work, without back pay for the absence period.
The Johannesburg Labour Court has ordered the reinstatement of four professional nurses dismissed after they refused to return to Tshino Clinic in Limpopo’s Vhembe District, where they were confronted by a deeply distressed and angry community.
The saga began in December 2018, when a newborn tragically died during birth at the clinic. Grief and outrage swept the area, with some community members blaming the nurses for the loss.
In response to the volatile situation, the Department of Health precautionarily transferred the nurses to other clinics while an investigation took place. No wrongdoing was found. In March 2020, the Department and the Health and Other Services Personnel Trade Union of South Africa (HOSPERSA) agreed that the nurses would return to Tshino Clinic on 1 April 2020.
Fear, trauma, and isolation keep nurses away
By that time, the nurses were deeply traumatised. The community’s grief and anger had not subsided, and the environment at Tshino Clinic remained hostile and unwelcoming. Some residents had even made threats against the nurses, and the idea of returning to the clinic filled them with dread and anxiety.
Seeking help, the nurses consulted both a general practitioner and a psychologist, who both advised that it was unsafe for them to go back. They were diagnosed with stress-related illnesses and provided with medical certificates for the relevant period in May 2020. Psychological reports echoed the need for their safety, recommending they be placed at other facilities.
The nurses later explained that their absence was not a sign of rebellion, but a necessary step to protect their mental and physical health. They submitted their medical certificates through HOSPERSA shop stewards, believing they were following workplace protocol and relying on their union to advocate for them.
MEC’s refusal to reinstate found irrational
Despite these medical recommendations, the Department of Health instructed the nurses on 11 May 2020 to report for duty at Tshino Clinic. When they did not comply, the department deemed them absent without permission for over a month. Under section 17(3)(a)(i) of the Public Service Act, this meant they were automatically considered dismissed from the public service.
HOSPERSA, the union, applied to the Limpopo MEC for Health to have the nurses reinstated as allowed under the Act, though the application was submitted late. After a delay of more than seven months, the MEC rejected the application in March 2021, blaming the union for mishandling the process and insisting that the nurses should have submitted their medical certificates themselves, not via shop stewards.
The Labour Court found the MEC’s decision both irrational and legally unsound. Acting Judge C De Witt ruled that the MEC had failed to show why the nurses’ continued employment would be intolerable, which is the critical standard required by law. The court emphasised that the nurses had acted in good faith, following the advice of their union, and were never told that their medical certificates were rejected or that they were still expected to report for duty.
Court grants reinstatement and recognises workers’ plight
Although the review application was late, the court granted condonation, highlighting that the MEC had delayed his own decision by over seven months and that there was no opposition to the review. Judge De Witt emphasised that the nurses’ dismissal could have been avoided if the Department had fairly addressed their legitimate fears for safety and their mental health struggles.
“A reasonable and fair-minded decision maker… could appreciate that fairness dictated that termination of the employment of the applicants ought to be reversed,” he wrote.
The court ordered the nurses’ immediate reinstatement on their previous terms and conditions, though without back pay for the period between June 2020 and March 2021.
For these four nurses, the judgment marks the end of a long ordeal. After months of stigma, sleepless nights, and the fear of returning to a hostile environment, they can finally resume their calling with their reputations restored and their dignity intact.
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