‘Call to duty’ debacle persists
Tsaone Basimanebotlhe | Monday February 19, 2024 06:00
Unlike doctors, nurses do not get allowances. The union wants this anomaly addressed, failing which nurses will not take call-ins. In an interview with BONU president, Peter Baleseng on Wednesday, he said: “We are demanding that DPSM must implement the judgment delivered last year December. The judgement requires that nurses be paid overtime when they have worked for long hours and clock when that happens. It does not necessarily address the issue of ‘Call to duty’ because one is forced to be in that area. Therefore, a nurse on ‘Call on Duty’ may go wherever he/she wants to go.”
Baleseng said the issue of ‘Call to Duty’ is very complicated, unlike the way the Court of Appeal has addressed it. He said nurses would not allow a situation whereby they are on standby and only required to be paid for the time they would be seeing a patient while one is forced not to go anywhere. The union president said the nurses want the ministry to pay certain allowances just like what is happening to doctors. He said what is painful is that the nurse is the one who calls a doctor after having a consultation with the patient. Baleseng confirmed that they would be meeting with DPSM on Monday to try to iron out this matter since it is affecting nurses’ efforts to deliver effectively in their duties. Meanwhile, the Ministry of Health, spokesperson Dr Christopher Nyanga said: “Yes we are aware of both the issue and the judgment you refer to. Together with all the stakeholders, the ministry is still studying the judgment and having conversations on how to move forward in compliance with the said judgment.”
The Directorate of Public Service Management (DPSM) and Attorney General (AG) late last year partly succeeded in their pursuit to quash an Industrial Court order that would spell the discontinuation of the ‘Call to Duty’ for nurses or pay overtime as per a prior Industrial Court judgment by Justice Galesite Baruti. A panel of three Court of Appeal (CoA) judges, Justices Modiri Letsididi, Goemekgabo Tebogo- Maruping and Tshegofatso Mogomotsi, concurred in a ruling that the employer’s appeal succeeds in part in respect of two parts of the Industrial Court order, which must reflect that the time spent on call by the nurses and midwives be regarded as working time and where appropriate as overtime if they are required to be physically present at the health facility. The government, through the DPSM, lost the case against the nurses and decided to lodge an appeal in an attempt to cling to the long-standing ‘Call to Duty’ practice, which the nurses have argued is an abuse they have endured for a long time. In the ‘Call to Duty’, nurses are expected to report to duty when required to do so beyond their working hours. In the lower court, the nurses won the case where they had taken their employer to court seeking the discontinuation of the ‘Call to Duty’.
According to the justices, there is no doubt that the judge at the lower court was in error in making the declaratory order. “In the first place, the order is too broad and ignores the reality at the workplace that an employee may be rostered to be on call but fall sick, have to go on emergency leave or rest and otherwise be indisposed to discharge his obligations. A finding that such an employee must be deemed to have been working and paid for merely being rostered and on call when he had not been engaged in active service would be ill-advised,” they stated. The judges further found that the on-call declaratory order ignores Botswana law and the sensible approaches in the Namibian and European cases, which require that, a distinction, must be made between active and non-active on-call duty. “There is no difficulty with a declaratory order that time spent on call by the nurses and midwives be regarded as working time, and where appropriate as overtime if they are required to be physically present at the health facility. It is the time linked to the actual ‘Call to Duty’ and provision of health care services, which will be regarded as working time and if after hours as overtime,” they stated.
DPSM shall when computing overtime entitlement for nurses and midwives, take into account the time they are rostered to be on call and shall fully comply with Section 95(5) of the Employment Act. The justices are of the view that the declaratory order was made in error by the lower court and cannot stand as it is for the reasons already outlined above. “The same applies to this particular declaratory order. It cannot stand as it is,” the judges stated. All the other orders from Justice Baruti stood as the CoA justices were in agreement with the lower court.