‘You Signed for Level 9′: Court Rejects Nurses’ Bid for Salary Upgrade After Hospital Transfer

Two nurses who sought a salary upgrade and back pay from the KwaZulu-Natal Department of Health have had their application dismissed by the Labour Court in Durban.

The application was brought by the health sector union HOSPERSA on behalf of Priya Naidoo and Sifiso Mthethwa.

The Background

Both employees were previously employed at Saint Mary’s Hospital, a private facility that was converted into a public hospital under the management of the KZN Department of Health in October 2017.

Shortly before the transfer, both signed employment contracts with the provincial health department:

• Naidoo: Assistant Director: Human Resources, salary level 9

• Mthethwa: Assistant Director: Finance, salary level 9

Both earned R404,121 per year, excluding allowances and benefits.

The Claim

The employees argued that their salaries should have been placed on salary level 10, a higher pay grade.

Their grievance was escalated in March 2019 to the Department of Public Service and Administration (DPSA) .

Later that year, a letter from Professor Richard Levin, a senior DPSA official, advised that affected employees should be placed on the first notch of salary level 10, effective from October 2017, with further adjustments for 2018 and 2019.

Based on this letter, the applicants argued that the health department had failed to implement the recommended adjustment and sought a court order to:

• Upgrade their salaries to level 10

• Calculate back pay from October 2017

• Pay all outstanding amounts

The Department’s Response

The KZN Department of Health opposed the application, arguing that:

• No breach of contract had occurred

• Both employees were being paid exactly as stipulated in their signed contracts (level 9)

• The DPSA letter was not addressed to the department but to the Public Servants Association (another union)

• The department only became aware of the letter when the court application was filed in February 2024

The Court’s Ruling

Acting Judge G C Phakedi noted that the signed contracts expressly stated that salaries would be based on salary level 9.

The court concluded that the employees could not rely on an external DPSA letter to claim a contractual entitlement that was not included in their signed agreements.

“The applicants were already being remunerated in accordance with their contracts, meaning that no breach had been established.”

The request for declaratory relief was also rejected, as the applicants had not established a legal basis for the order.

The Outcome

The application was dismissed. The applicants were ordered to pay the legal costs incurred by the department.

The Bottom Line

The DPSA letter suggested level 10. But the contracts said level 9.

In court, the contract wins every time.

The nurses signed. They were paid as agreed. And no amount of external advice could change that.

{Source: IOL}

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