Seetelo v South African Heritage Resource Agency and Another (J 685/2022) [2022] ZALCJHB 164 (20 June 2022)

The Labour Court of South Africa, Johannesburg

Not Reportable

Case No: J 685/2022

In the matter between:

MIMI SEETELO

APPLICANT

And

SOUTH AFRICAN HERITAGE RESOURCE AGENCY FIRST RESPONDENT

THE CHIEF EXECUTIVE OFFICE OF SOUTH

AFRICAN HERITAGE RESOURCE AGENCY

SECOND RESPONDENT

Heard: 15 June 2022

Delivered: 20 June 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 20 June 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant has filed an application in two parts. In Part A, which serves before the court, the applicant seeks an interim order, on an urgent basis, that the first respondent reverse what she avers to be deduction of R 46,444.01 from her May 2022 salary, and an interdict in terms of which the respondents be interdicted from making any further deductions without following the prescripts of section 34 of the Basic Conditions of Employment Act (BCEA). In part B of the application, the applicant seeks an order declaring the decision to deduct the above amount from her May 2022 salary to be unlawful and invalid, and reviewing and setting aside the first and/or second respondent’s decision to deduct the amount.

[2] The applicant was employed by the first respondent in August 2008. On 18 November 2021, she was placed on precautionary suspension, with full pay, pending an investigation into various acts of misconduct and incapacity. On 16 February 2022, the applicant’s attorneys wrote to the first respondent expressing concern regarding the delay in convening a disciplinary hearing. In a letter of the same date, the first respondent invited the applicant to attend a disciplinary hearing before an independent chairperson on 23 and 24 February 2022. On 17 February 2022, the applicant submitted a medical certificate reflecting she had been booked off work until 2 March 2022. On 18 February 2022, the first respondent addressed a letter to the applicant stating that disciplinary hearing had been postponed. That enquiry was postponed after the applicant submitted a medical certificate.

[3] On 1 March 2022, the first respondent issued a notice advising the applicant that her disciplinary hearing was scheduled for 8 and 9 March 2022. On 4 March 2022, the applicant emailed a medical certificate to the first respondent. On 7 March 2022, the first respondent addressed a letter to the applicant recording that ‘We have noticed that you have been booked off for the second time that coincides with your disciplinary enquiry and this is obstructing the finality of this matter. We have reservations as to the bona fide nature of your absence and we are investigating the veracity of the medical certificate. We are willing in the interim to postpone but this will be the final postponement and you are to ensure that you attend on the next occasion.’

[4] The applicant avers that she has since avoided addressing further medical certificates to the first respondent on the basis, it would seem, that she considers that it is the first respondent’s prerogative to convene an enquiry in her absence, even where a medical certificate has been submitted. The applicant states that all of the postponements were at the behest of the first respondent, presumably on the basis of the medical certificates that she had submitted.

[5] On 19 May 2022, the applicant received a letter from the second respondent, part of which reads as follows:

We need to inform you that you have currently exceeded your sick leave entitlement hence you will notice several unpaid days for the current month and as a result a much reduced salary.

It further implies that any future time that you take off work due to sickness will equally be unpaid until your new sick leave entitlement becomes available.

[6] A pay slip for the month of May attached to the letter indicates under the heading ‘unpaid leave’ a deduction of R 46,444.01.

[7] On 27 May 2022, an unsigned copy of the present application was filed, by email, after hours and without a case number. On Saturday 28 May 2022, the respondents’ attorney addressed an email to the applicant’s attorneys noting that it considered and based the papers to be a draft of the proposed application and that in any event, it disputed the merits of the application. The email records that the applicant had provided the first respondent with seven sick notes covering every day since the first scheduled disciplinary hearing in February. The email records further that the first respondent had however considered the applicant’s predicament and noted that she had 29.5 days of annual leave to her credit. The first respondent proposed that the applicant be granted access to her leave balance, on the basis that she agrees to forego the urgent application and completes a leave form. On Sunday, 29 May 2022, the applicant’s attorneys sent an email to the respondents’ attorney advising that the applicant ‘has accepted your client’s consideration for deducting the remaining annual leave days. Please advise if you will provide our client with manual form or send a link to use ESS (Employee Self-Service) system. On Monday, 30 May 2022, the respondents’ attorney addressed a request to the applicant’s attorney to have the applicant

complete an attached form, advising that he would secure ‘a fast turnaround’. A signed application for leave was duly

completed.

[8] On 1 June 2022, the applicant’s attorneys wrote to the respondents’ attorneys stating that:

We confirm that as per your proposal our client would in the interim if she has exhausted her sick leave days of which same is still disputed, you shall deduct any of the exhausted sick leave days from her annual leave and our client will forego the application in the interim provided you reinstate the deducted amount with immediate effect and/or before the last day of the month.

The letter went on to record that despite the applicant having submitted her leave form, she had not yet received payment of the deducted amount.

[9] On 13 June 2022, the applicant filed a supplementary affidavit in which she records that on 9 June 2022, the first respondent’s attorney addressed a letter to her attorney enclosing proof of payment and seeking confirmation that the matter would be removed from the roll. The applicant also records that on 9 June 2022, she received payment of R37 900. In the supplementary affidavit, the applicant attaches correspondence between the respective attorneys and specifically records her attorneys response to the effect that receipt of the ‘June salary’ was confirmed but that ‘same appears to be premature’ in particular, the email records that the dispute before the court is one in relation to the deduction from

the applicant’s May 2022 salary, and since that had not been paid, the applicant’s instructions were to proceed with the present application.

[10] On 13 June 2022, the first and second respondents filed an answering affidavit in which it was contended that the respondents had never ‘deducted’ any amounts from the applicant’s salary; rather, the applicant had exceeded her sick leave entitlement of 36 days in a three-year cycle to which she was entitled in terms of the BCEA and her contract of employment. The respondents attach particulars of the medical certificate submitted by the applicant since February 2022, a total of seven certificates affording the applicant a total of 64 days’ sick leave. These extend for the periods 17 February 2022 to 2 March 2022, 4 March 2022 to 11 March 2022, 8 March 2022 to 17 March 2022, 8 April 2022 to 25 April 2022, 22 April 2022 to 6 May 2022, 6 May 2022 to 20 May 2022, and 20 May 2022 to 10 June 2022. The respondents aver that the applicant had ‘simply ran out of sick leave’ and was thus on unpaid sick leave. In May 2022, the applicant had 18 unpaid days sick leave. Annexed to the answering affidavit was a confirmatory affidavit by the first respondent’s human resources manager. She confirms that she was given approval by the second respondent to pay a ‘hypothetical shortfall’ in the applicant’s May 2022 salary occasioned by the applicant’s exhaustion of her paid sick leave. The shortfall was to be recovered from the applicant’s accrued annual leave. Given that the instructions were conveyed after the close of the May 2022 payroll run, the payment of accrued leave needed to be included in the payroll run for June 2022, ordinarily planned to take place on 25 June 2022. The respondent thus resolved to expedite the applicant’s payment by a duplication of one months’ salary ‘rather than reconcile and set off the annual leave which will instead be done with the June payroll’. Payment of R 37 036.31 was made to the applicant on this basis on 9 June 2022.

[11] Turning first to the issue of urgency, the applicant contains that the matter is urgent since she will suffer detrimental consequences should the order not be granted, given that she has a wide range of financial obligations to meet on a monthly basis. The applicant does not dispute that in this court, financial hardship in itself is not ordinarily regarded as a ground for urgency but counsel on her behalf submitted that in terms of Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC), this court had a discretion to grant urgent relief in appropriate circumstances where an applicant was able to demonstrate that he or she would suffer detrimental consequences or undue hardship that may not be capable of being addressed in the normal course.

[12] Financial prejudice and urgency was the subject of a recent judgement by Tlhotlhalemaje J in Muntahli v Passenger Rail Agency of South Africa [2021] 5 BLLR 507 (LC) where he said the following:

[8] The issue of whether financial hardship is the basis of seeking urgent relief has received attention in this and other courts. In other decisions, it has been held that as a general principle, financial hardship does not establish a basis for urgency. It has been held that the mere fact that irreparable financial losses have been suffered a would be suffered by the applicant was not, by itself, sufficient ground to acquire the requisite agency necessary to justify a departure from the ordinary court rules. In other decisions however, it has been accepted that the general principle maybe departed from if exceptional circumstances are established, depending on the merits of each case.

[9] I agree with the proposition in Ledimo and others v Minister of Safety and Security and another [2007] JOL 21032 (O) that there is no immutable rule that financial exigency is cannot be invoked to lay a basis for urgency. This is so in that courts in any event enjoy discretion in the overall determination of whether the matter should be accorded urgency or not. Inasmuch as factors surrounding financial hardship on the owner not a basis for according a matter urgency, the have to be determined together with other facts and circumstances. In the founding papers, which points to a conclusion that those facts and circumstances are exceptional, thus necessitating that the matter should be treated as urgent.

[13] While the applicant has set out in some detail the extent of her monthly financial obligations and recorded her inability to meet those in the absence of payment of monthly salary, urgency must necessarily be determined in regard to all of the relevant facts and circumstances. In the present instance, the relief that sought is the reversal of what the applicant contends is a deduction from her May 2022 salary. The payment of a full month’s salary made on 9 June 2022 more than takes account of any reversal for which she contains and it cannot be said that she will be financially embarrassed on account of any reduced income for the month of May 2022. Further, the respondents have undertaken to give effect to the agreement reached between the parties that the applicant be entitled to access her accrued annual leave to compensate for sick leave taken in excess of her contractual entitlement. I fail to appreciate on the circumstances the applicant’s circumstances can be described as so dire so as to warrant a departure from the general rule that financial hardship in itself is not a basis for urgency.

[14] To the extent that counsel for the applicant contended that the court ought to consider the prospect that at the end of June 2022 and in the months following, the first respondent may well continue making ‘deductions’ from the applicant salary and ought appropriately to be interdicted from doing so, there is no merit in this contention. It is not for the court to speculate what the first respondent may or may not do beyond the end of June 2022, when it will implement the agreement to use the applicant’s accrued annual leave to compensate for any days of unpaid sick leave. More fundamentally, the interdict is future conduct sought is premised on Part B of the notice of motion, which purports to be an application to review the respondents’ decision to deduct the amount of R 46,444.01 from the applicant’s May 2022 salary. The founding papers set out no basis for review except that the decision should be set aside since the deduction was made without the applicant’s consent and without being given an opportunity to make representations before the deduction was made. Section 77A (d) empowers this court to review any performance or purported performance of any function provided for in the BCEA on any grounds permitted in law. Any review brought in terms of this section must necessarily disclose the basis for review, and the grounds in law on which the applicant relies. It is not sufficient simply to state, as the applicant has, that the deduction about which she complains was made without agreement (which is not the only basis on which a deduction might be made) or without an opportunity to be heard (which applies only for a deduction made to reimburse an employer for loss or damage caused by the employee). At best for the applicant, the ‘grounds for review’ on which she relies on the founding affidavit constitute no more than an allegation of a breach of section 34 of the BCEA. There is no reason why any complaints you may have in this regard would not properly be dealt with under the provisions of the BCEA that provide for enforcement, or by way of a contractual claim. Generally speaking, employment-related acts by statutory bodies such as the first respondent to not constitute administrative action and are thus not susceptible to review under PAJA. As I have observed, the applicant has not sought to make out a case for review on this or any other basis. It follows that the applicant’s prospects of success in Part B of the application are minimal, if they exist at all, a factor necessarily to be taken into account in the assessment of urgency.

[15] For the above reasons, I am not satisfied that the applicant has made out a case for urgency and the application thus stands to be struck from the roll.

[16] Insofar as costs are concerned, section 162 of the LRA affords this court a discretion to make orders for costs according to the requirements of the law and fairness. This formulation has the consequence that unlike the civil courts, in this court, costs do not follow the result. However, all of the relevant facts and circumstances must be taken into account and a discretion exercised as to whether or not an order for costs is warranted. Both parties have sought orders for costs on a punitive scale. I am persuaded, on a consideration of the papers and submissions made by counsel, that the applicant ought to be ordered to pay the respondents’ costs on the ordinary scale. First, the papers clearly disclose a proposal by the respondents’ attorney that the applicant would be granted access to her annual leave credit in return for her agreeing to forego the present application. The applicant’s attorney accepted that proposal. It is not in dispute that the first respondent advanced to the applicant a month’s salary (being an amount greater than the value of any accrued annual leave that would be attributed to any unpaid sick leave), together with an undertaking to perform a reconciliation at the end of June 2022 to account for the number of days annual leave to be accessed. This represents substantial compliance with the agreement reached. Indeed, in an email addressed by the respondents’ attorney to the applicant’s attorney on 10 June 2022, the views expressed that ‘Our undertaking is always been to allow your client access to the annual leave which we have complied with. We considered this matter settled. It is somewhat astonishing that you are proceeding with the application regardless, please find a notice of opposition …’. I fail to appreciate how or why in these circumstances the applicant elected to proceed with the application Secondly, the applicant failed to file a replying affidavit. The respondents’ version that she had exceeded her sick leave entitlement of 36 days in a three-year cycle is thus undisputed. The ‘deduction’ about which the applicant complains is therefore no deduction at all - the applicant is not entitled to payment for days off sick in excess of her contractual sick leave. In short, the entire application is misguided and misconceived. The respondents have been obliged to incur costs in their opposition to the application, costs that will ultimately be borne by the taxpayer. In the circumstances, the requirements of the law and fairness are best satisfied by an order for costs on the ordinary scale.

1. The application is struck from the roll for lack of urgency, with costs.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: L Moela

Instructed by: Sithi and Thabela Attorneys

For the respondents: J Crawford, Crawford Attorneys