THE Zimbabwe Nurses’ Association (Zina) has filed an urgent chamber application at the High Court seeking leave to execute, pending appeal, an order granted in its favour over a dispute with the government over flexible working hours.
MOSES NGWERE
This comes after High Court judge Justice Joseph Mafusire on November 20, granted Zina an interim order barring the government from enforcing a directive for nurses to resume working a normal 40-hour week with immediate effect.
The Health Service Board was cited as the first respondent, while Health and Child Care minister, Constantino Chiwenga and permanent secretary Jasper Chimedza were cited as the second and third respondents respectively. The government lodged an appeal at the Supreme Court to challenge Justice Mafusire’s judgement.
In High Court case number 6479/20, Zina, represented by its president Enock Dongo, is arguing for a continuation of the flexi-working arrangement allowing nurses to work 40 hours in three days. The respondents want the arrangement cancelled so that all nurses work 40 hours in seven days.
The flexi-working hours were introduced in January 2019 following an agreement between nurses and the government, which emerged from the Health Service Bipartite Negotiating Panel. It was meant to improve nurses’ working conditions, but on 19 October 2020 the government made a U-turn on the agreement.
In papers filed at the High Court, Dongo stated that the health workers filed the urgent application upon realising that some of the members were already being punished for failing to comply with the government directive scrapping the flexi-hours, yet the matter had not been finalised in court.
More than 1 000 nurses have been struck off the government payroll for defying the directive to resume normal working hours, according to papers filed at the High Court.
On Monday this week, 458 nurses at Harare’s Sally Mugabe Central Hospital, who did not get their November salaries after defying the government directive, wrote letters of apology to Chiwenga pleading to be placed back on the payroll.
“Filing an appeal to the Supreme Court suspends the judgement appealed against,” stated Dongo in his founding affidavit. “This means that whilst the appeal is going through the (hearing) processes, the respondents are free to enforce compliance with the unilateral directive of the third respondent and at the same time resume disciplinary processes against the applicant’s members.”
He said after Justice Mafusire barred the respondents from revoking the flexible working hours, Zina made several efforts to reach out to the respondents through writing letters calling for dialogue and an out-of-court settlement, but they ignored and opted for an appeal at the Supreme Court.
But in their notice of appeal against Justice Mafusire’s judgement, the Health Service Board, Chiwenga and Chimedza argued the judge wrongly dealt with the matter on an urgent basis yet the time for the applicant to act against the directive had long since passed. They also argued that the judge failed to consider that there was a review of nurses’ remuneration in August 2019, when he passed his ruling.
“The learned judge erred in fact and law in finding that the alleged Collective Bargaining Agreement 2 of 28 August 2019 extended the system of flexible working hours for members of respondent (Zina) and consequently served to create a prima facie right for the respondent,” they stated.
Dongo submitted that there was urgency in filing the application because if the matter went through the normal court-hearing process it would take long and the Health Service Board would implement Chimedza’s directive before the court determination, which would inflict irreparable harm on the welfare of more than 9 000 nurses countrywide.
He argued that the respondents had failed to provide adequate personal protective equipment to nurses and, instead of addressing their plight, they wanted hospitals to be congested with vulnerable nurses if they cancelled the flexi working hours, which exposed the health workers to the infectious coronavirus.
“Exposure to an unsafe working environment during a raging pandemic (Covid-19) might potentially lead to loss of life to applicant’s members,” he stated. “The respondents have never denied that they are not providing adequate personal protective equipment and yet they are pushing nurses to be working normally in an abnormal environment.”
Dongo went on to argue that the respondents had power over their employees and were using that power to ensure compliance of the directive for nurses to resume normal working hours hence the court was their only hope for reprieve.
