The Labour Court in Cape Town has set aside the dismissal of a Free State nurse who was fired after 11 boxes of state-owned antiretroviral (ARV) medication (Odimune) were discovered at her son’s house in Bloemfontein.
Nontuthuzelo Thokozile Taioe, who had been working for the Free State health department since 2008, was dismissed in July 2021 for theft and unlawful possession of the ARVs.
The medication was found during a police search in June 2018.
The arbitrator from the Public Health and Social Development Sectoral Bargaining Council ruled the dismissal substantively fair, heavily relying on the principle that unexplained possession of state property can constitute theft.
Arbitrator’s finding dismissed
Acting Judge Samkelo Gura overturned that award on Tuesday, ordering the department to pay Taioe 12 months’ compensation (about R342 000).
In his judgment, Gura criticised the arbitrator’s finding that Taioe had exclusive and intentional control over the locked room in her adult son’s separate house.
“There was simply no evidence that the applicant had exclusive use or control of the room in her son’s house in which the medicine was stored,” Gura said.
He noted that the two houses on the property have separate street numbers, separate gates, and are located 20–30 metres apart.
The judge also highlighted the absence of any proof that the drugs came from a clinic where Taioe was working.
“No evidence was adduced of shortages at the first respondent’s premises,” the judge said, adding that the department conceded the medication could only be identified as manufactured by Cipla, with no unique markings proving it belonged to the Free State health department.
Hearsay evidence questioned
Gura further questioned the arbitrator’s reliance on hearsay evidence from police officers about statements allegedly made by Taioe’s intellectually disabled son.
“The arbitrator attached undue weight to what the son reportedly told police, despite the son never testifying and the arbitrator having subpoena powers.”
Gura acknowledged that in some circumstances, unexplained possession of state property can justify dismissal but ruled that the arbitrator’s conclusion was not reasonable.
“This is not a case where drugs were found in the employee’s own bedroom or under her direct control.
“The arbitrator’s finding that the applicant arranged storage and knew the contents of the boxes was speculative,” the judge said.
The department has been ordered to pay the compensation within 14 days.
