Stein v Minister of Education and Training and Others (J415/20) [2021] ZALCJHB 420 (15 November 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

CASE NO: J 415/20

In the matter between:

MOPEDI CLIFFORD STEIN Applicant

and

MINISTR OF WEDUCATION AND TRAINING

(DR BLADE MZIMANDE) First Respondent

MR GWEBINKUNDLA QONDE (DIRECTOR

GENERAL HIGHER EDUCATION AND TRAINING) Second Respondent

EKURHULENI WEST TVET COLLEGE Third Respondent

MS MCN DANGAZELE (ACTING DEPUTY

PRINCIPAL CORPORATE SERVICE) Fourth Respondent

MS S MAVHUNGU (ACTING DEPUTY

PRINCIPAL CORPORATE SERVICE) Fifth Respondent

MR T.R MANDIWANA (HUMAN RESOURCES MANAGER) Sixth Respondent

Date heard: 09 November 2021

Date Delivered: 15 November 2021

JUDGMENT

MANGENA AJ

[1] On the 14 May 2020, Mahosi J struck off from the roll an urgent application brought by the applicant against the respondents in which he sought the following orders:

(a) Interdicting the respondents from making an unlawful and invalid salary deductions through leave without procedure as per Determination and Directive on Leave of Absence in the Public Service.

(b) Ordering that the respondents did unlawful deductions from applicant’s salaries.

(c) Ordering that the respondents committed an unfair labour practice in terms of section 186 (2) of the Labour Relations Act 66 of 1995 and section 23 of the Republic of South Africa Act 108 of 1996.

(d) Ordering the respondents to reverse the Leave Without Pay that has been implemented on the applicant and that the amounts of R11 113.00 that has been unlawfully deducted as Leave without Pay be paid to the applicant within 15 working days.

[2] The matter came before me on a normal opposed motion roll and at the commencement of the proceedings I enquired from counsel for the applicant if the deductions are still continuing. Mr Msomi, counsel for the applicant, informed me that the deductions have stopped. The import of the question was not lost to Mr Msomi as he immediately abandoned prayer (a) and (c) above. The basis for abandoning prayer (c) is unclear.

[3] The application has its genesis in the requests that were made to the applicant to submit completed leave application forms in respect of the days he was allegedly not at work. The applicant failed to submit the leave forms arguing instead that he was not on leave but working outside office on matters assigned to him.

[4] when the leave forms were not forthcoming, the sixth respondent applied for the approval to declare the days the applicant was absent as unpaid leave. The approval was granted and in due course, the Department as the employer deducted certain amounts for the days that the applicant was not at work. It is these deductions that necessitated this application.

[5] The applicant avers that the deductions are unlawful because he did not consent to them being made against his salary as required by section 34 of the Basic Conditions of Employment Act ( BCEA)[1] nor are they permitted by law, court order or collective bargaining agreement. He prays that the deductions be declared unlawful and a consequential order be made that the deductions already made be reversed within 15 working days.

[6] The respondent represented by Advocate Mahlangu are disputing the applicant’s assertions and contend in limine that this court does not have jurisdiction to entertain the application and grant the relief sought as the dispute properly construed should be referred to the bargaining council for adjudication as an unfair labour practice matter. The contention, it is submitted, is informed by the applicant’s own characterisation of the dispute and the manner in which he phrased his case. It is argued that the dispute is about deductions that have been made as a result of unexplained absenteeism on the part of the applicant. When the applicant was requested to complete a leave form he failed to do so and the policy on leave allows the employer to treat such days as unpaid leave days. If the applicant was unhappy, his remedy lied in referring this dispute to the relevant bargaining council for determination.

[7] The applicant has disavowed his reliance on unfairness and abandoned the prayers relating thereto. As I understand it, the applicant has located his case firmly within the provisions of section 34 of BCEA to the extent that there are averments made in the founding affidavit to support the prayers declaring the deductions unlawful. In my view no purpose will be served by making a determination on the issue that is no longer live between the parties. I decline to uphold the point in limine.

[8] The issue for consideration is whether the respondents violated section 34 of the BCEA when effecting the deductions in circumstances where the employee was not on unpaid leave. Section 34 provides as follows: -

“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.

…..

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

(a) repay any remuneration except for overpayments previously made be the employer resulting from an error in calculating the employee’s

remuneration.”

[9] The section permits an employer to make deductions under certain prescribed circumstances and on the reading of subsection 1, the employer is required to obtain an employee’s consent before making a deduction in respect of a debt specified in the agreement. This postulates for a situation where the employee acknowledges his or her indebtedness. The section does not provide for a situation where there is no agreement between the parties.

[10] In this case the employer notified the employee that the days he had been absent would be treated as unpaid leave. The employer proceeded to obtain an approval for deductions to be made from the employee’s salary in respect of those days that he was not at work. Deductions for days the employee was not at work constitute recoupment for payment done in circumstances where it is not supposed to have been made. The employer is recovering an amount in respect of an overpayment previously made.

[11] In Sibeko v CCMA[2], Revelas J dealt with a situation involving overpayment as said the following regarding the provisions of section 34: -

“It is indeed so, that in terms of the Basic Conditions of Employment Act, an employer may not deduct amounts from the salary or remuneration of an employee without the employee's consent. Where an employee was however overpaid in error, the employer is entitled to adjust the income so as to reflect what was agreed upon between the parties in the contract of employment, without the employee’s consent.”

[12] In Padayacheee V Interpak Books (Pty) Ltd[3], the court said that any determination on the lawfulness of the deductions made from the employee’s salary should be informed

by the nature and purpose of the deductions in dispute and then ascertain whether the section requires employer to regulate such deductions in a particular manner.

[13] An employee is in law required to be at work and render service to the employer in exchange for payment. The BCEA defines remuneration as any payment in money or in kind or both in money and in kind, made or owing to any person in return for that person working for any other, including the state.

[14] Where an employee absent himself from work and fails to submit the leave forms in accordance with the policy, the employer is entitled to withhold payment and in instances where he had already effected it, he or she should be allowed to recover it without the consent of the employee. When the department made payments it did so in firm belief that the employee will account for his absence from work. When he failed submit the forms, the amounts paid in respect of those days constituted an overpayment and susceptible to recovery within the provisions of section 34 (5) in that it was made in circumstances where it was not due i.e. in error.

[15] In SAMA bno Boffard V Charllotte Maxele Johannesburg Hospital[4], Ngcukaitobi AJ held that in case where the employer is an organ of state and a repository of public power, the employee is entitled to a fair hearing before the deductions could be made. In casu, the applicant was duly notified of the deductions to be made in respect of the days that he was absent. He disputed the employer’s

assertion but failed to adduce any evidence to prove that he was indeed at work.

[16] In conclusion, it merits mentioning that the applicant sought a final relief in the form of a prohibitory interdict in circumstances where there are clear dispute of facts regarding his absence from work. The respondents attached to their answering affidavit attendance register in which the applicant’s column was marked absent. The applicant failed to deal squarely with the respondent’s averments. Guided by the principle set out in Plascon –Evans Paint Limited v Van Riebeeck Paints (Pty) Ltd[5], the respondent’s version should prevail.

[17] In the circumstance, I have no hesitation in concluding that the employer was justified to deduct the amount paid to the applicant for those days he did not work.

Costs

[18] In relation to costs, the principle is clear that costs do not follow suit in labour matters. The applicant Is still employed by the respondents and was asserting his labour rights. There should be no order as to costs.

[19] Order

1. the application is dismissed.

2. No order as to costs.

M. I. Mangena

Acting Judge of Labour Court of South Africa

Appearances:

For the Applicant: Adv.

Msomi

Instructed by: S.

Gunuza Attorneys

For the 1st – 6th Respondents: Adv. Mahlangu

Instructed by: State

Attorney (Johannesburg)

[1] Act 75 of 1997

[2] (2001) JOL 8001 (LC) para 6

[3] (2014) 35 ILJ 1991 (LC)

[4] (2014) 35 ILJ 1998 (LC)

[5] 1984 (3)SA 623 A