M v Minister of Justice and Constitutional Development and Correctional Services (JS708/14) [2017] ZALCJHB 48 ; [2017] 10 BLLR 1062; (2017) ILJ 1675 (31 January 2017) per Cele J.
Labour court refused to grant two advocates any order declaring deductions made by the State from their pay to be unlawful and in breach of s 34 of the BCEA read with s 34 of the Public Service Act. Their claim for repayment of the monies deducted, with interest and costs of the application, was also refused with costs awarded against them.
See Labour Relations Law: A Comprehensive Guide 6th ed (LexisNexis 2015) at 334
Excerpts
Introduction
[1] The Applicants seek an order declaring the deductions made by the Respondents’ Department, the Department, against the Applicants’ remunerations to be not in compliance with the provisions of Section 34 of the Basic Conditions of Employment Act[1]read with Section 34 of the Public Service Act[2] and consequently unlawful. The Applicants also seek an order for the repayment of the monies deducted, with interest and costs of the application. This matter essentially turns on whether the applicants reported for duty at the period for which deductions were made.
[2] The respondents opposed the claim and contended that the applicants were not entitled to remuneration because the applicants were not reporting for duty at the material times and that therefore the corresponding duty to pay remuneration did not apply. The respondents contended that in view therefore the Department became entitled to apply the no-work – no-pay – no benefit principle against the applicants.
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Factual Background
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[4] At times relevant to this matter there were 11 to 14 advocates, including the two applicants in the in-house representation. Clause 1.2.4 of the contract of employment of the first applicant provided that the employee might be required to perform other duties or to work at other places that might reasonably be required by the employer. Under 1.4.2 of the contract of employment of the second applicant, the Department reserved the right to recover any amount with which she might be overpaid as a result of erroneous calculations, breach of a contract and leave without pay from her salary or from any other monies to which she might be entitled.
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[8] Ms Phahlane then addressed temporary placement letters dated 05 November 2013 to the applicants. They were materially similar. In those letters she described the move as a temporary placement for a period of six months to a year, renewable subject to mutual agreement between the employee and the Head of the unit being Ms Phahlane for the first applicant and Mr Venkatsamy for the second applicant. They were to enter into a performance agreement with their Unit Heads.
A grievance letter was then submitted to the Department by the applicants concerning their placements. Further correspondence was entered into about whether the applicants were tendering their services to their employer. The applicants were asked in writing to show why deductions could not be made on their salaries for not properly reporting on duty and they responded to such a probe. The Department made deductions against the Applicants’ remunerations on the allegations that the applicants did not report for duty as expected. A further grievance was lodged by the applicants and when it could not be resolved to their satisfaction, they initiated the present application.
The issue for consideration
[9] It is to be determined whether the secondment or temporary placement made by the Respondents, through Mr Mahwai and Ms Phahlane were in compliance with the provisions of Section 15 of the PSA, and consequently lawful and whether the deductions made by the Department against the Applicants’ remunerations were in compliance with the provisions of Section 34 of the BCEA read with the provisions of Section 34 of the PSA.
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Evaluation
[23] The issues identified by the applicants to be resolved through evidence led were earlier identified as whether:
a) the secondment or temporary placement made by the Respondents, through Mr Mahwai and Ms Phahlane were in compliance with the provisions of Section 15 of the PSA, and consequently lawful and
b) the deductions made by the Department against the Applicants’ remunerations were in compliance with the provisions of Section 34 of the BCEA read with the provisions of Section 34 of the PSA.
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[30] In the event I am wrong in my assessment of the powers of the Head of the Office of the Chief Litigation Officer, Ms Phahlane in this matter, I would still find that the applicants were not entitled to refuse to work on the facts of this matter.
In Coin Security (Cape) v Vukani Guards & Allied Workers’ Union (1989) ILJ 239; 1989 (4) SA 234 (C) at 230 the [high] court [per Friedman J] 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.”
[31] Indeed the employee is entitled to refuse to work if the employer refuses to pay him wages which are due to him. In the instant case, the applicants refused to regularly tender their services even long before their services were seconded or temporarily placed to the new units. That absconding habits continued unabated. Their failure to attend work was thus not proved to have been a reaction to the secondment or temporary placement.
[32] As a contract of employment is a contract with reciprocal rights and obligations, the applicants were under an obligation to work in which case the Department was under an obligation to pay for their services. Therefore the Department was entitled to refuse to pay the applicants as they refuses to work.
In other words, the applicants were legally not entitled to refuse to carry out their side of the employment contract. In fact, it was them who were in breach of their employment contract by unlawfully failing to perform their obligations. As the applicants failed to render their services to the Department, the Department became entitled, in law, to implement the no-work, no-pay and no-benefit rule.
[33] The last probe turns on whether a proper procedure was followed by the Department in giving effect to the deductions on the salaries of the applicants. The issue turns on whether the deductions made by the Department against the Applicants’ remunerations were in compliance with the provisions of Section 34 of the BCEA read with the provisions of Section 34 of the PSA.
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[35] It is common cause that the applicant did not agree to the deductions being made. In fact they resisted the deductions being made, hence this application. Mr M for the applicants argued that they were not give a hearing prior to the application of the no work no pay principle.
In terms of section 34(2)(b) of the BCEA the respondents had to follow a fair procedure and had to give the applicants a reasonable opportunity to show why the deductions should not be made. The applicants were given letters by Ms Phahlane who asked them to give reasons why the deductions were not to be made. They received the letters. Their testimony was that they responded to the letters. They were asked to produce proof of their submission of their responses but none was forthcoming.
The probability is that the applicants failed to tender their responses. There is no issue that they were not given reasonable time. In fact by saying they sent a response that was in their bundle of documents, they excluded any suggestion that no reasonable time was afforded to them.
[36] I accordingly find that the respondents followed a fair procedure in making the deductions against the salaries of the applicants.
All things considered therefore, including the law and fairness pertaining to costs, I issue an order in the following terms:
- The application for a declaratory order and an order for repayment of monies deducted are both dismissed.
- The applicants are to pay the costs of this application. They are held to be jointly and severally liable for these costs.