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[2017] ZALMPPHC 21
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South African Democratic Teachers Union v Member of the Executive Council, Department of Education Limpopo Province and Another (4915/2017) [2017] ZALMPPHC 21 (21 August 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 4915 / 2017
21/8/2017
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
THE
SOUTH AFRICAN DEMOCRATIC TEACHERS
UNION
APPLICANT
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
1
ST
RESPONDENT
DEPARTMENT
OF EDUCATION LIMPOPO PROVINCE
THE
HEAD OF DEPARTMENT OF EDUCATION LIMPOPO
PROVINCE
2
ND
RESPONDENT
JUDGMENT
SIKHWARI
AJ
[
1]
The applicant has approached the court for relief in the following
terms:
(1)
Condoning
the Applicant’s non-compliance with forms and service and time
periods provided in the Uniform Rules of this Honourable
Court and
permitting this application to be entertained as a matter of urgency
in terms of Rule 6(12) of the Rules of Court.
(2)
Interdicting
and/or restraining the respondents from effecting and / or causing to
be effected any deductions from the salaries
of applicant’s
members employed by the Limpopo Department of Education for the no
work no pay related to the strike which
took place from the 22
nd
March to the 11
th
April 2017.
(3)
Directing
the respondents to ensure that any deductions already programmed on
the salaries of members of applicant are reversed
prior to the
payment of the salaries on the 15
th
July 2017 and/or in respect of salaries payable on the 15
th
July 2017 and that members of applicant receive their salaries free
of any deductions for the no work no pay related to the strike
of the
22
nd
March to 11
th
April 2017.
(4)
Directing
respondents to provide applicant’s Attorneys with proof that no
deductions were effected on the salaries of applicant’s
members
by close of business on the 15
th
July 2017.
(5)
That
the Applicant be granted further and / or alternative relief.
(6)
Costs
of the Application.
[2]
Deduction of money from the salary of an employee is regulated in
terms of
Section 34
of the
Basic Conditions of Employment Act 75 of
1997
, as amended (BCEA). The said
Section 34
of the BCEA states that:
34.
Deductions and other acts concerning remunerations
(1)
Any
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 of 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 deb does not exceed the actual amount of the loss
or damage; an
(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 an goods
purchased by the employee must specify the nature and quantity
of the
goods.
(4)
An
employer who deducts an amount from employee’s remuneration in
terms of subsection (1) for payment to another person must
pay one
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 overpayment 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.
[3]
Section 34 of the Public Service Act of 1994 has similar provisions
to Section 34 of the BCEA. The parties in this case are
ad
idem
on the provisions of the above two statutes. It states that “the
salary
of an employee shall not be reduced without his or her consent except
in terms of Section 38, an Act of parliament, or an
agreement.”
[4]
The applicant’s case is that the intended deductions on the
salaries of members of the applicant will constitute a violation
of
the above statutes. The respondents do not dispute same. Instead, the
respondents submitted that the intended deductions are
based on
Section 67
(4) of the
Labour Relations Act 66 of 1995
, as amended
(the LRA).
[5]
Section 67
of the LRA states the following:
67.
Strike or lock-out in compliance with this Act
(1)
In this chapter, “protected strike” means a strike that
complies with the provisions of this Chapter and “protected
lock-out” means a lock-out that complies with the provisions of
this chapter.
(2)
A person does not commit a defect or a breach of contract by taking
part in-
(a)
a protected strike or a protected lock-out; or
(b)
any conduct in contemplation or in furtherance of a protected strike
or a protected lock-out.
(3)
Despite subsection (2), an employer is not obliged to remunerate an
employee for services that the employee does not render
during a
protected strike or a protected lock-out, however-
(a)
if the employee’s remuneration includes payment in kind in
respect of accommodation, the provision of food and other basic
amenities of life, the employer, at the request of the employee, must
not discontinue payment in kind during the strike or lock-out;
and
(b)
after the end of the strike or lock-out, the employer may recover the
monetary value of the payment in kind made at the request
of the
employee during the strike or lock-out from the employee by way of
civil proceedings instituted in the Labour Court.
(4)
An employer may not dismiss an employee for participating in a
protected strike or for any conduct in contemplation or in
furtherance
of a protected strike.
(5)
Subsection (4) does not preclude an employer from fairly dismissing
an employee in accordance with the provisions of Chapter
VIII for a
reason related to the employee’s conduct during the strike, or
for a reason based on the employer’s operational
requirements.
(6)
Civil
legal proceedings may not be instituted against any person for-
(a)
participating in a protected strike or a protected lock-out; or
(b)
any conduct in contemplation or in furtherance of a protected strike
or a protected lock-out.
(7)
The
failure by a registered trade union or a registered employers’
organisation to comply with a provision in its constitution
requiring
it to conduct a ballot of those of its members in respect of whom it
intends to call a strike or lock-out may not give
rise to, or
constitute a ground for, any litigation that will affect the legality
of, and the protection conferred by tis section
on, the strike or
lock-out.
(8)
The
provisions of subsections (2) and (6) do not apply to any act in
contemplation or in furtherance of a strike or a lock-out,
if that
act is an offence.
(9)
Any
act in contemplation or in furtherance of a protected strike or a
protected lock-out that is a contravention of the
Basic Conditions of
Employment Act or
the Wage Act does not constitute an offence.
[6]
It is common cause that if members of the applicant were on strike,
then they would have ne engaged in an unprotected strike.
[7]
The respondents rely more on section 67 (3) of the LRA in order to
justify the intended deductions. When it was pointed to counsel
for
the respondents that Section 67 (3) of the LRA is applicable in the
event of a protected strike or protected lock-out, the
respondents
shifted the goal-posts and submitted that the court should expand the
scope of Section 67 (3) to accommodate
unprotected strikes and
unprotected lock-outs. I decline this invitation due to the fact that
there other legal mechanism in place
to deal with this issue.
[8]
At this stage there is a dispute of fact as to whether the employee
members of the applicant failed to report for work because
they were
on unprotected strike or were simply obstructed from reporting for
work by striking members of NEHAWU and PSA trade unions.
This dispute
could be resolved by the respondents by way of instituting
disciplinary proceedings against the said employees or
referring the
matter to arbitration.
[9]
Item 6 (1) of the Code of Good Practice provides that:
6.1
Participating in a strike that does not comply with the provisions of
Chapter IV is misconduct. However, like any other act
of misconduct,
it does not always deserve dismissal. The substantive fairness of
dismissal in these circumstances must be determined
in the light of
the facts of the case, including-
(a)
the seriousness of contravention of this Act;
(b)
attempts made to comply with this Act; and
(c)
whether
or not the strike was in response to unjustified conduct by the
employer.
[10]
Once we move from the understanding that participating in an
unprotected strike is an act of misconduct, then the respondents
as
employers of the affected members of the applicant should observe the
principles of fairness and legality in dealing with the
said
employees in terms of the due process which should include
disciplinary hearing or referral of dispute to the Bargaining Council
for award or Labour Court for a Court Order.
[11]
Section 68 (1) (b) & (5) of the LRA provide further remedy for
the respondents in that it states that:
68.
(1) In the case of any strike or lock-out, or any conduct in
contemplation or in furtherance of a strike or lock-out, that
does
not comply with the provisions of this Chapter, the Labour Court has
exclusive jurisdiction-
(a)……….
(b)
To order the payment of just and equitable compensation for any loss
attributed to the strike or lock-out, or conduct, having
regard to-
(i)
Whether
–
(aa)
attempts were made to comply with the provisions of this Chapter and
the extent of those attempts;
(bb)
the strike or lock-out, or conduct premeditated;
(cc)
the strike or lock-out, or conduct was in response to unjustified
conduct by another party to the dispute; and
(dd)
there was compliance with an order granted in terms of paragraph (a);
(ii)
the
interests of orderly collective bargaining;
(iii)
the
duration of the strike or lock-out or conduct; and
(iv)
the
financial position of the employer, trade union or employees
respectively.
(2)
………..
(3)
……….
(4)
……….
(5)
Participation
in a strike that does not comply with the provisions of this Chapter,
or conduct in contemplation or in furtherance
of that strike, may
constitute a fair reason for dismissal. In determining whether or not
the dismissal is fair, the Code of Good
Practice: Dismissal in
Schedule 8 must be taken into account.
[12]
In the circumstances, I am of the view that the intended deductions
are unjustified in law. The said intended deductions constitute
a
threat to clear tight of applicant’s members. The said right is
emanating from the provisions of Section 34 of the BCEA,
Section 34 &
38 of Public Service Act of 1994, read with the LRA. The applicant
does not have an adequate alternative remedy.
[13]
The applicant has satisfied the requirements of an interdict. The
respondents have an option of following the prescribed procedures
of
the law and recover their money, if any. There are no bases as to why
costs should not follow the event. The applicant is a
successful
party in this application. Costs must follow success.
ORDER
[14]
In the circumstances, I make the following order:
1.
That
the first and second respondents are Interdicted and / or restrained
from effecting and / or causing any deductions from the
salaries of
applicant’s members employed by the Limpopo Department of
Education for the no work no pay related to the strike
which took
place from the 22
nd
March to the 11
th
April 2017.
2.
That
the first and second respondents are directed to ensure that any
deductions already programmed on the salaries of members of
applicant
are reversed prior to the payment of the salaries on the 15
th
August 2017 and / or in respect of salaries payable on the 15
th
August 2017 and that members of applicant receive their salaries free
of any deductions for the no work no pay related to the strike
of the
22
nd
March to 11
th
April 2017.
3.
That
the first and second respondents are directed to provide applicant’s
attorneys with documentary proof that no deductions
were effected on
the salaries of applicant’s members by close of business on the
15
th
September 2017, or any time thereafter.
4.
That
the first and second respondents are ordered to pay costs of this
application on party and party scale, including all the reserved
costs.
___________
MS SIKHWARI, AJ
Acting Judge of the
High Court,
Limpopo Division,
Polokwane
REPRESENTATIONS:
1.
Counsel
for the Applicant
: Adv M Mannya
2.
Counsel
for the Respondents
: Adv KE
Masoga
3.
Date
of hearing
: 10 August 2017
4.
Date
handed down
: 21 August 2017