The Psychology Behind the Dismissal: Labour Court Dismissal and the HPCSA

In a Labour Court matter that highlights the delicate balance between ensuring compliance with professional registration requirements and acknowledging the potential administrative challenges posed by external statutory bodies, a significant judgment was handed down on 12 July 2024. The case of Department of Correctional Services v PSA obo Madikizela and Others [2024] ZALCCT 29, involved the dismissal of a psychologist employed by the Department of Correctional Services (referred to as the Employee), who was terminated due to an alleged failure to maintain proper registration with the Health Professionals Council of South Africa (HPCSA).

The court ultimately ruled that the dismissal was both procedurally and substantively unfair, ordering the Employee’s reinstatement with full back pay.

Background and Key Facts

The Employee had been working as a psychologist since 03 March 2009. On 14 October 2020, the Department discovered that she was not registered with the HPCSA, a requirement for practicing psychologists in South Africa. Upon investigation, it was found that the Employee had been suspended by the HPCSA in 2017 due to a shortfall in her annual fee payment. Specifically, she had underpaid her fee by R134, which led to her deregistration. However, the Employee was not notified of this suspension, partly due to administrative lapses on the part of the HPCSA. As a result, she continued to pay her annual fees, unaware that her payments were not being credited to her account.

Upon learning of her suspension in October 2020, the Employee promptly paid the outstanding penalty of R2 ,150 to the HPCSA and informed her employer. Despite these efforts, her employment was terminated on 30 October 2020, with the employer alleging serious misconduct and dishonesty for practicing without proper registration. The Employee’s appeal against the termination was unsuccessful, leading her to refer the matter to the bargaining council. The Commissioner ruled that the dismissal was unfair, leading to the recent court judgment upholding this decision.

Balancing Compliance with Administrative Challenges

This case underscores the critical importance of ensuring compliance with professional registration requirements, especially in the healthcare sector. However, it also highlights the potential pitfalls associated with administrative errors by external statutory bodies like the HPCSA. Employers must manage these challenges carefully to avoid unjustly penalising employees for issues beyond their control.

In the judgment, several key points were emphasised:

1. Notification and Due Process: The court noted that, under section 19A(2) of the Health Professions Act, a professional is considered suspended only after being duly notified. In this case, the Employee was never informed of her suspension, making her unaware of her deregistration status. The court found that the employer’s failure to provide a formal disciplinary hearing or charge sheet was a significant procedural oversight. This lack of due process rendered the dismissal procedurally unfair.
2. Good Faith efforts by the Employee: The Employee continued to pay her annual fees, showing a good faith belief that she was compliant with HPCSA regulations. Upon discovering the issue, she took immediate steps to rectify the situation, indicating a lack of intent to deceive. The court found it unjust to label her actions as dishonest, especially given the administrative errors on the part of the HPCSA.
3. Employer’s Role and Responsibilities: While employers must ensure that their staff meet all professional and legal requirements, they must also account for possible administrative challenges from external bodies. In this case, the employer’s hasty decision to terminate the Employee without proper investigation and communication exacerbated the situation. Employers should consider alternative actions, such as temporary suspension or reassignment, while allowing the employee to resolve such issues.

The Need for Clear Procedures and Communication

One of the crucial lessons from this case is the necessity of clear and transparent procedures, particularly when dealing with compliance-related issues. Employers should establish robust systems for verifying the registration status of their employees with relevant professional bodies. Regular audits and proactive communication can prevent misunderstandings and ensure that all parties are aware of their obligations.

Moreover, when potential compliance issues arise, it is essential to handle them with a fair and consistent approach. This includes providing employees with a fair opportunity to address and rectify the situation, conducting formal investigations, and following established disciplinary procedures. Clear and timely communication is vital in these situations to avoid unnecessary disputes and legal challenges.

Guidance for Healthcare Employers

Healthcare employers must exercise caution when dealing with employees’ professional registration status. The following steps can help mitigate risks:

1. Regular Verification: Periodically verify employees’ registration status with professional bodies like the HPCSA to ensure ongoing compliance.
2. Clear Communication: Communicate promptly and clearly with employees about any issues that may affect their ability to practice, providing them with the opportunity to resolve them.
3. Proper Procedures: Adhere strictly to established disciplinary procedures, ensuring that any actions taken are fair, transparent, and well-documented.

The case serves as a crucial reminder of the need for balance between enforcing compliance and recognising administrative challenges. Employers must be vigilant and fair in their approach, ensuring that employees are treated justly and in accordance with the law. By doing so, they can foster a more supportive and legally sound workplace environment.

Article by Julia Penn | Director and Ciara Pillay | Candidate Attorney