National Education, Health and Allied Workers Union [NEHAWU] obo Mamogale and 14 Others v Northwest Department of Community Safety and Transport Management and Another (J711/2022) [2022] ZALCJHB 182; (2022) 43 ILJ 2369 (LC); [2022] 11 BLLR 1041 (LC) (12 July 2022)

THE LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG

Reportable

Case : J711/2022

In the matter between:

NATIONAL EDUCATION, HEALTH

AND ALLIED WORKERS UNION

[NEHAWU] obo MAMOGALE & 14

OTHERS

First Applicant

and

NORTHWEST DEPARTMENT OF

COMMUNITY SAFETY & TRANSPORT

MANAGEMENT

First Respondent

MOLEFE MORULE (N.O.)

(1ST RESPONDENT’S ACTING HEAD

OF DEPARTMENT)

Second Respondent

Heard: 7 and 8 July 2022

Delivered: 12 July 2022

Summary: urgent interdict - alleged unlawful conduct deductions to effect “no-work-no-pay” policy - alleged lockout on account of failing to provide employees with their tools of trade - postponement and costs - partial relief granted in respect of deductions in arrears - no relief granted in respect of future deductions on the basis of “no-work-no-pay” policy - employer’s

conduct not amounting to a lockout.

JUDGMENT

LAGRANGE, J

Introduction

[1] This is an application launched on 23 June 2022 in which the applicant union (NEHAWU) acting on behalf of 15 of its members working as traffic officers for the first respondent (the department)

in which they seek an order in the following terms:

1.1 The prescribed times, forms and procedures are hereby dispensed with and the matter is heard as one of urgency, in terms of Rule 8 of the Rules for the Conduct of Proceedings in the Labour Court[1].

1.2 The department is interdicted and restrained from effecting and/or causing to be effected, any deductions from the remuneration of the applicant’s members employed by the department, as identified, as a result of the department’s implementation of the “no-work-no-pay” principle;

1.3 The previous deductions which the department made on or about 15 June 2022, from the remuneration of the applicant’s members, as identified, premised on the “no-work-no-pay” principle, or as a result of the said members’ alleged unauthorised

absence from the workplace since 8 April 2022, are declared to be in contravention of the Basic Conditions of Employment Act[2] (BCEA), and unlawful;

1.4 The Respondents are directed to reverse the deductions made, as referred to in paragraph 1.3 above, and to reimburse the members in an amount equal to the deduction made in respect of each of the members within seven (7) days of this order;

1.5 The department’s withdrawal of the applicant’s members’ tools of trade is declared to constitute a lockout, which does not comply with the provisions of the Labour Relations Act[3] (LRA) and is unlawful;

1.6 The respondents are forthwith interdicted and restrained from participating in the current lockout or any conduct in contemplation or in furtherance of the current lockout until such time that the Respondents comply with the requirements of a protected lockout, as per the prescripts of the LRA;

1.7 The respondents are ordered to return the applicants’ members’ tools of trade, allow these members to render their services as Provincial Traffic Officers and to henceforth comply with their conditions of service; and

1.8 That the first respondent is ordered to pay the costs of this application including the costs which were reserved on 7 July 2022.

[2] The application was launched on 23 June 2022, calling upon the respondents to file answering affidavits by 30 June 2022 and setting the matter down for hearing on 7 July 2022. The respondents only filed an answering affidavit on 6 July 2022, and the hearing was postponed by agreement to 7 July 2022 to allow the applicant to file a replying affidavit. The question of costs of the postponement was reserved. The applicants referred to a letter in which the department said its members had failed to report to duty since late April and it would implement the “no-work-no-pay” principal.

Background

[3] I do not intend to relate every detail of the varying allegations made, but the essential narrative underlying the dispute is set out below.

[4] The origins of the matter result from a decision in 2011 by the department that a 24/7 shift system was required for traffic law enforcement and a ministerial directive had been issued to provinces to implement the same. The three shift system which was to be implemented, as the need arose, was:

4.1 First shift: 06h00 to14h30;

4.2 Second shift: 14h00 to 22h30; and

4.3 Third shift: 22h30 to 06h30.

[5] For reasons which are unclear, the department only gave partial effect to the new system from January 2022. It would appear that first two shifts were slightly different in that the first shift ended at 14h00 and the second shift ended at 22h00. It is also apparent that attempts were made to introduce it at least as far back as 2019 and in 2020.

[6] Matters came to a head on 20 April 2022 when the chief provincial inspector at Montshsioa traffic station sent a memorandum to traffic officers at the station, including the individual applicants, to the effect that it had been resolved that traffic officers were to adhere to the new time slots for the two shifts as directed by the district manager on 24 February 2022. NEHAWU disputed that there had been any resolution between it and the department.

[7] The failure to accept the new shift system seems to have been linked to disgruntlement over overtime and subsistence payments applicable under the shift system.

[8] On Saturday 29 April 2022, memorandums were issued by the chief inspector, repeating the content of his previous memorandum and recording that the house members had been instructed at the meeting at the traffic station on 7 April 2022 to comply with the new duty roster and working times. Unlike the original memorandum, it no longer referred to a resolution of the issue. The memorandum further recorded that from 8 April 2022, NEHAWU’s members had failed to report in accordance with the new hours and the “no-work-no-pay” principle would be implemented until they complied with the instruction.

[9] Instead of complying with the new shift roster, NEHAWU’s

members were reporting for duty in accordance with the previous shift times, namely 07h00 to 15h30 and 12h00 to 20h30. The response of the department was to refuse to give them the vehicle keys because they had not complied with the new shift system hours, and the traffic officers reporting under the previous system would then remain at the premises for the rest of the duration of the shifts they were prepared to work.

[10] The department did not implement the “no-work-no-pay” principle promptly with effect from April. The traffic officers were paid their normal salaries for April and May 2022. It was only in June that NEHAWU’s members’ payslips reflected that a deduction of approximately R2,500 would be made on 15 June from their

monthly remuneration and that it reflected an outstanding balance owing to the department of approximately R15,200, for the balance of the remuneration the department calculated the members had been overpaid for the period 8 to 30 April.

Urgency

[11] On the evidence, I am satisfied that the application was moved sufficiently soon after it became clear that the department was intending to implement deductions to recover previous salary payments. It gave the respondents fair warning of the application and sufficient time to respond thereto.

[12] The department contended that there was no urgency in the matter because the amounts deducted on a staggered basis were not significant in relation to each traffic officer’s earnings and if the employer was not entitled to make the deductions, the employees could recover the same in due course. The main difficulty with this argument is that, if the deductions in question were only those that had already been made, namely in the month of June, there might be some merit in this argument. However, the department intends to continue making the deductions in the future and if they would be

unlawful, the most effective remedy is to prevent future deductions of arrears from being made in the first place. Consequently, I believe the matter is sufficiently urgent for the Court to entertain it.

The dispute

[13] NEHAWU argues that the arrear deductions to recover salaries paid from 8 April onwards is a breach of section 34 of the BCEA. It states:

‘34 Deductions and other acts concerning remuneration

(1) An employer may not make any deduction from an employee's remuneration unless –

(a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or

(b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

(2) A deduction in terms of subsection (1) (a) may be made to reimburse an employer for loss or damage only if –

(a) the loss or damage occurred in the course of employment and was due to the fault of the employee;

(b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made;

(c) the total amount of the debt does not exceed the actual amount of the loss or damage; and

(d) the total deductions from the employee's remuneration in terms of this subsection do not exceed one-quarter of the employee's remuneration in money.

(3) A deduction in terms of subsection (1) (a) in respect of any goods purchased by the employee must specify the nature and quantity of the goods.

(4) An employer who deducts an amount from an employee's remuneration in terms of subsection (1) for payment to another person must pay the amount to the person in accordance with the time period and other requirements specified in the agreement, law, court order or arbitration award.

(5) An employer may not require or permit an employee to –

(a) repay any remuneration except for overpayments previously made by the employer resulting from an error in calculating the employee's remuneration; or

(b) acknowledge receipt of an amount greater than the remuneration actually received.’

[14] NEHAWU argues that in the absence of a written agreement of its members consenting to the deduction of arrear payments, the deductions are unlawful.

[15] NEHAWU also contends that its member applicants stated that they have tendered their services to work the previous shift hours, they were prepared to work, but were unable to render their services due to the

withdrawal of the members’ tools of trade, which meant that the department was preventing them from working which was tantamount to a lockout.

Evaluation

Lawfulness of arrear deduction to recover overpayments

[16] The department claims it was entitled to make the deductions in terms of section 34(1)(b) of the BCEA, but could not point to any law, collective agreement, or arbitration award that would justify the deductions under that section. The only court decision advanced in support of the arrear deductions, which the department relied on was the decision in Mpanza and another v Minister of Justice & Constitutional Development & Correctional Services and others[4] (Mpanza). At paragraph [30] of the judgment, the Court referred to the principle of reciprocal obligations in employment contracts:

‘…In Coin Security (Cape) (Pty) Ltd v Vukani Guards & Allied Workers Union & others the court held that:

“A contract of employment is a contract with reciprocal rights and obligations. The employee is under an obligation to work and the employer is under an obligation to pay for his services. Just as the employer is entitled to refuse to pay the employee if the latter refuses to work, so the employee is entitled to refuse to work if the employer refuses to pay him wages which are due to him.” ‘

[17] In Mpanza, Cele J found there had been a proper opportunity to make representations before deductions were made from remuneration and therefore the provisions of section 34(2)(b) of the BCEA had been met. The department argues that it also warned the traffic officers in advance that it would apply the “no-work-no-pay” principle. However, nothing in Mpanza suggests that the deductions made in that case were made after the employees had already been paid their full salaries for periods during which they were not working. Accordingly, that case is not on all fours with this one in which the traffic officers were paid their full salaries despite the application of the “no-work-no-pay” principle and it was only subsequently that the department tried to recoup the payments which it claims should never have been made. It should be mentioned that the department does not claim that the failure to make the deductions at the time was the result of an error in calculating their remuneration.

[18] Since Mpanza, a number of judgments have limited an employer’s right to recover monies due to it from an employee by simply deducting the amount due from their salary, though they did not all deal with the application of section 34 of the BCEA[5]. The department has not made out a case that the recovery they are implementing satisfies the requirements of section 34, nor that it is permissible in terms of section 38 of the Public Service Act[6] (PSA).

[19] The consequence is that deductions being implemented to recover the overpayment of salaries and which the department plans to continue are unlawful. However, that has no bearing on remuneration which is not paid in the month it falls due because remuneration is only due when services are tendered. Accordingly, had the department only paid the traffic officers what they were actually due when paid their April and May salaries, there would be nothing improper about that. The applicants argue that they ought at least to have been allowed to work the hours they were prepared to and the employer prevented them from doing so. By implication, the salaries should not be reduced for the times that they tendered their services, even if that time period only related to the hours when they were present at the workplace during the hours the department said that ought to be at work This brings me to the second issue of the alleged lockout.

Are the traffic officers being locked out?

[20] The argument of NEHAWU is that the traffic officers are continuing to tender their services on the basis of the previous shift hours. There are a lot of conflicting allegations made by the parties about the

determination of the new shift hours.

[21] A lot of this might have been made clearer if the respondents had included annexures which were missing from its answering affidavit. No less than about 15 official documents or pieces of correspondence

were referred to but none were attached and a bundle of the documents was not even forwarded to the court before the hearing on 7 July. It was only when the Court inquired why no documents were attached that an offer was made to hand them in. In passing, this is a completely unacceptable way of conducting motion proceedings, more especially in urgent court. At the very least, the original answering affidavit could have been substituted with one including all the attachments.

[22] Nonetheless, I am not satisfied that NEHAWU has proven the contractual shift hours the traffic officers were entitled to work. As it stands, it cannot be taken for granted that they were entitled to report for work and work the shifts according to the pattern they were happy with. Even so, it appears to be implicit in the union’s

argument that at least a substantial portion of the shifts, which the employer claims are the obligatory ones, overlap with the hours they tendered their services for. Accordingly, they argued that the employer could not prevent them from working simply because they were only reporting for work later than the employer required them to. They contend that by withholding the vehicle keys so they could not take the vehicles and perform their duties amounted to a lockout and was unprotected as the department had not followed any procedures in the LRA to make the lockout a protected one.

[23] In effect, the department’s stance is that it is simply expecting them to comply with the arrangement of working hours which it has determined and is entitled to determine. Is an employer entitled to refuse an employee an opportunity to perform some work, because they are not willing to adhere to the working hours the employer has established? It is established that if an employee tenders partial performance of their obligations, the employer is not obliged to accept that partial tender and is entitled to demand that services be tendered in full.[7]

[24] Accordingly, on the evidence available, NEHAWU has not established that the traffic officers are entitled to work the hours it contends for and, to the extent that their tender of services would amount to

partial fulfilment of their work obligations, the department is under no obligation to accept such an incomplete tender of services,

thereby permitting them to work the hours that are willing to within the ambit of the shift hours it has implemented. In these

circumstances, there is no basis for characterising the department’s withholding of vehicle keys as a lockout.

Scope of the order

[25] For the avoidance of any doubt, the relief afforded to NEHAWU’s members is only in respect of deductions to recover past salary overpayments during the months of April, May and June 2022. Moreover, the relief ordered does not prevent the respondent from instituting civil proceedings to recover the undue portion of salary payments

which it made during those months.

Costs

[26] The issue of costs of the postponement on 6 July was held over. Ms Ntoane, counsel for the department, stoutly defended the delay citing the difficulties of obtaining detailed instructions and arranging the briefing of counsel. I accept that this case was factually more complicated than the usual matters which come before the motion

court. Nonetheless, even if it could not file answering papers by 30 June, it took eight court days to prepare an answer. It could have approached the applicants and asked for further time and for the matter to be enrolled a few days later, but did not. The Court must be careful not to fall into the trap of allowing an applicant to dictate an unrealistically short period for filing answering papers, in circumstances where it knows full well that the respondent is unlikely to be able to do so until just before the matter is heard, and it will then apply for a postponement because it does not have enough time to file a replying affidavit. I do not think this is one of those cases and it was reasonable to anticipate that the respondent would be able to file its answering affidavit if not by the end of June but at least with one clear court day before the matter was due to be heard so that a replying affidavit could be drafted. I believe that the time granted to the respondent was sufficient for it to have filed its answering affidavit timeously and to permit the applicant an opportunity to file a replying affidavit.

[27] Consequently, it is not inappropriate for the first respondent to pay the wasted costs of the postponement.

[28] In the premises, I make the following order:

Order

1. The prescribed times, forms and procedures are hereby dispensed with and the matter is heard as one of urgency, in terms of Rule 8 of the Rules for the Conduct of Proceedings in the Labour Court.

2. The First Respondent is interdicted and restrained from effecting and/or causing to be effected any further arrear salary deductions from the salaries of the Applicant’s fifteen members represented by it in this application in respect of previously paid remuneration for the months of April, May and June 2022 of, as a result of the First Respondent’s implementation of the “no-work-no-pay” principle;

3. The previous deductions, which the First Respondent made on or about 15 June 2022, from the remuneration of the aforesaid Applicant’s members, based on the “no-work-no-pay” principle, or as a result of the said members’ alleged unauthorised absence from the workplace since 8 April 2022, were in contravention of the Basic Conditions of Employment Act 75 of 1997, and unlawful;

4. The Respondents are directed to reverse the deductions made, as referred to in paragraph 3 above, and to reimburse the Applicant’s members in an amount equal to the deduction made in respect of each of them within fifteen (15) days of this order;

5. The First Respondent’s withdrawal of the Applicant’s members’ tools of trade does not constitute a lockout;

6. The First Respondent is ordered to pay the Applicant’s wasted costs of the postponement on 6 July 2022.

R. Lagrange

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: W.P Schöltz of Schöltz Attorneys

For the Respondents T. Ntoane

Instructed by:

The State Attorney

[1] GN 1665 of 1996.

[2] Act 75 of 1997, as amended.

[3] Act 66 of 1995, as amended.

[4] (2017) 38 ILJ 1675 (LC) at para [30].

[5] See: Minister of Justice & Correctional Services and others v Tshifhango and another (2019) 40 ILJ 1773 (LAC); Public Servants Association obo Ubogu v Head, Department of Health, Gauteng and others 2018 (2) SA 365 (CC); Western Cape Education Department v General Public Service Sectoral Bargaining Council and others (2014) 35 ILJ 3360 (LAC); and NEHAWU obo 158 Members v The North West Provincial Legislature and another (case no: J1386/21, unreported judgment delivered 15 November 2021)

[6] Proclamation 103 of 1994.

[7] See: 3M SA (Pty) Ltd v SA Commercial Catering & Allied Workers Union and others (2001) 22 ILJ 1092 (LAC) at para [11], followed in City of Johannesburg and another v Independent Municipal & Allied Trade Union on behalf of Erasmus and another (2019) 40 ILJ 1191 (LAC) at para [28].