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[2007] ZALCD 13
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Thekwini Security Services v Director General, Department of Labour (D576/05) [2007] ZALCD 13 (8 February 2007)
CASE
NO
D576/05
DATE
8 FEBRUARY 2007
In
the matter between
THEKWINI
SECURITY SERVICES
Applicant
And
DIRECTOR
GENERAL, DEPARTMENT OF
LABOUR
Respondent
JUDGMENT
8
FEBRUARY 2007
PILLAY D. J
[1]
This is an appeal noted against the order of the Department of Labour
(the respondent) in terms of section 69 read with section 71(3)
of the Basic Conditions of Employment Act of 1997 (“the BCEA)
in terms of which the appellant was ordered to pay certain
employees
an amount in respect of annual bonus.
[2]
The compliance order also directed the appellant to comply with the
sectoral determination relating to the payment of an apparel
allowance of R1, 50 per week.
[3]
With regard to the first ground of appeal, it became common cause
during the hearing that the applicable sectoral determination
for the
calculation of annual bonus was worded thus:
“
(1).
An employer shall pay to every employee for every week that the
employee was paid or entitled to be paid and in respect of
each
completed 12 months of service with such employer an annual bonus
calculated as follows:
Employee’s
monthly actual ordinary hours of work
x
“R”
_______________________________________
_______
12
100
(2). The
annual bonus will be paid on the anniversary of the employee’s
date of employment with the employer unless
the employer and a
representative trade union and/or employee mutually agree in writing
upon another rate.
(3).
The annual bonus will be calculated monthly at the rate in effect
during each relevant month and shall be paid
to the employee as per
2.”
[4]
The issue in dispute is the interpretation of the formula. In
the previous sectoral determination the formula read:
Employee’s hourly
wage X employee’s
52
“R”
ordinary hours of
work
X _______ X
______
12
100
[5]
It is common cause that the applicable formula for the period in
dispute makes no mention of the hourly wage. As a result,
the
appellant in this case interpreted the formula strictly. The
result was that the employees were paid less than one month’s
salary, as would have been the case if the formula in the previous
sectoral determination had applied.
[6]
The error was discovered and subsequently a correction notice was
published to correct the applicable sectoral determination.
However, the correction was not made retrospective.
[7]
As a result, the Court is hamstrung as it has no choice but to give
effect to the strict wording of the formula and uphold the
appeal on
this ground.
[8] The second ground of
appeal is, likewise, based on the interpretation of the sectoral
determination. Clause 16.1.(c) of
the sectoral determination No
6 for the private security sector provides:
“
An
employer who provides an employee with such apparel may require the
employee to clean it in the employee’s own time, in
which event
the employer shall pay the employee not less than R1,50 per week
which shall however not be payable during periods
of absence from
work.”
[9]
The intention of the parties to the bargaining council might well
have been to require an employer to pay an apparel allowance
if it
provided employees with a uniform. However, that intention is
not captured in the text of section 16.1. (c). effectively,
an
employer who does not require its employees to clean their uniform is
not obliged to pay the uniform or apparel allowance.
[10]
The appellant’s case is that it has not required its employees
to clean their uniforms and on that basis denies liability
for a
uniform allowance.
[11]
On the basis of a strict interpretation of clause 16 the second
ground of appeal must also succeed.
[12]
In the circumstances the appeal on both grounds succeeds.
[13] With regard to
costs, the Department acted in a supervisory capacity to represent
the interests of employees. It did
so in good faith and in
pursuit of clarity of the sectoral agreement which would benefit the
industry as a whole. While the
interpretation might be obvious
to the Court, it may be less so to the Department of Labour who also
did not incur any costs in
getting legal opinion before opposing this
appeal. The judgment of the Court is required to inform the
workers who have an
expectation of the extra remuneration if this
appeal fails In the circumstances, the Court declines to make any
order for costs.
[14]
The appeal succeeds with no order as to costs.
______________
Judge
D. Pillay
Date
of Hearing:
Date
of Judgement:
For
the Applicant:
For
the Respondent: