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[2009] ZALCJHB 96
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Valasce v Wireless Payment Systems CC (J1137/09) [2009] ZALCJHB 96 (23 June 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: J1137/09
In
the matter between:
JONKER
VALASCE
APPLICANT
and
WIRELESS
PAYMENT SYSTEMS
CC
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an urgent application in terms of
which the Applicant seeks an order to have the Respondent to repay
her R9, 140.00 (Nine
Thousand One Hundred and Forty rand), which was
allegedly unlawfully deducted from her final remuneration, paid on
30
th
May 2009. The order should according to the Applicant include an
interdict restraining the Respondent from making any deductions
from
her remuneration payable at the end of her notice month, June 2009.
[2]
The Applicant brought her application in
terms of
section 158(1)
of the
Labour Relations Act 66 of 1995
read
with section 77(1) of the Basic Conditions Employment Act of 1997(the
BCEA).
Background
facts
[3]
The Applicant who is serving notice of
termination of her employment due to operational reasons was employed
as a sales and marketing
executive, in terms of a written contract of
employment. The Applicant’s gross monthly remuneration is about
R14, 100.00,
which amount was paid to her by means of electronic
funds transfer to her bank. The Applicant’s remuneration
structure included
a motor vehicle paid for by the Respondent.
[4]
It is common cause that the Applicant was
on 25
th
May 2009, called to a meeting by the Respondent where she was served
with a notice that her employment would terminate at the end
of May
2009 due to operational requirements. She was given a month’s
notice which means that she would receive her last salary
at the end
of June 2009.
[5]
The Applicant complains that the Respondent
unlawfully deducted an amount an amount of R9, 140.00 from her
remuneration for the
month of May 2009. She further complains
that a further deduction was to be made at the end of June 2009.
[6]
The Respondent on the other hand contended
that the salary of the Applicant varied from month to month depending
on the commission
that the Applicant made for that particular month.
The Respondent further contended that the Applicant was given a
vehicle and
was therefore not entitled to payment of a car allowance.
Because of an administrative error the Applicant received a car
allowance
in the amount of R2500,00 for eleven months from June 2008
to April 2009.
[7]
The Applicant states in her founding
affidavit that the matter was urgent because she is a divorced mother
of three children. Her
monthly expenses are; R5, 000.00 for rental,
R500.001 for electricity, R500.00 salary of a domestic worker,
R1.200,00 for the nursery
school, R500,00 for school fees, R370.00,
for bus fees, R 1, 900.00 for medical aid, R 3, 000.00, bursaries,
R500.00 for DSTV,
R600.00 for after school activities, R200.00 for
gymnasium membership fee. Thus the total expenditure of the Applicant
is R14,
270.00.
[8]
The Applicant further indicated in her
founding affidavit that she was renting the house in which she is
living with her children
and had been informed by the lessor that she
would be evicted if she was to fail to pay her rental. The amount of
R5, 000.00 per
month which her former husband paid as maintenance for
the children was insufficient to sustain the children’s and her
living
standard.
[9]
The Applicant based her case on the
provisions of the
Basic Conditions of Employment Act of 1997
in
particular the provisions of
section 34
of that Act.
Section 34(1)
of
the BCEA provides that an employer may not make any deductions 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.
[10]
Section 34(2)
of the BCEA provides that a
deduction in terms of subsection (1)(a) may be made to reimburse an
employer for loss or damage only
if-
(a)
the loss or damage occurred in the course 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 debt does not exceed the actual amount of the
loss or damage; and
(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.
[11]
Section 34(5)
of the BCEA provides that 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.
The
legal requirements for urgent application
[12]
It is trite that before an urgent
application can be granted, the applicant must satisfy the following
requirements; a clear right
(or a
prima
facie
right in the case of an interim
relief); a well grounded apprehension of irreparable harm if the
relief is not granted on urgent
basis, that the balance of
convenience favours the granting of the relief on an urgent basis;
and that the applicant has no other
alternative relief.
[13]
In my view the Applicant has failed to show
the existence of urgency in this matter. She has also failed to show
that she has no
alternative remedy that would avoid irreparable harm
if the relief was not granted. Because the Applicant is seeking a
final order
she had to show that she had a clear right which has been
interfered with, necessitating the Court’s intervention.
Has
the Applicant shown the existence of urgency
[14]
The essence of the Applicant’s case
in as far urgency is concerned revolves around financial hardship
that she is faced with
as a result of the alleged unlawful deductions
that the respondent has effected on her salary including the
deduction to be effected
at the end of June 2009. As indicated above
she has listed her financial obligations that she would not be able
meet as a result
of the deductions from her salary.
[15]
In the case of
Democratic
Nursing Organisation of South Africa and Others v The MEC for Health:
North Cape case number
:
J2386/08,
this Court was confronted with the same issue of
having to determine whether financial hardship constitutes a basis
for seeking
a relief on an urgent basis. In that case the Court in
following the decision in
Hultzer v
Standard Bank of South Africa (Pty) Ltd
[1999] 8 BLLR 809
(LC), at
para [13],
held that financial hardship
or loss of income is not regarded as a ground for urgency.
[16]
The general rule that financial hardship
and loss of income are not considered to be grounds for urgent relief
was upheld in
Malatji v University of
the North
[2003] ZALC 32
(LC)
and
National Sorghjum Bierbrouery (Edms )
Bpk (Rantoria Divisie) v John NO & Ander (1990) 11 ILJ 971 (T).
[17]
In
Democratic
Nursing Organisation of South Africa,
this
Court held that:
“
In
order to succeed when reliance is based on
financial hardship, exceptional circumstances must be shown before an
urgent interim
relief can be granted.”
[18]
In the unreported case of
Garry
Harley v Bacarac Trading 39 (Pty) Limited case number J254/08,
the Court rejected the approach that financial hardship and loss of
income can never be grounds for urgency. The Court per Van
Niekerk J
accepted the general approach that an employee would be entitled to
an urgent relief if he or she was able to demonstrate
detrimental
consequences that may not be capable of being addressed in due course
and if the employee was able to show that he
or she will suffer
hardship if the Court was not to intervene on an urgent basis. In my
view the Court in that case did not depart
from the approach that as
a general rule financial hardship and loss of income do not
necessarily constitute a basis for urgency
but where special
circumstances of a particular case indicates otherwise the Court
should not hesitate in intervening and granting
an urgent relief.
[19]
The case of
Hospersa
& Another v MEC for Health, Gauteng Provincial Government
[2008] ZALC 45
;
(2008)
9 BLLR 861
(LC)
, illustrates the
circumstances where the Court was willing to intervene and grant an
urgent relief. The Court in that case found
that the employee was
entitled to an urgent relief because the employer had unilaterally
withheld her salary in breach of the
Basic Conditions of Employment
Act. It
would seem to me that the Court in that case in granting the
urgent relief was influenced more particularly by the unlawfulness
of
the conduct of the employer and failure to afford the employee a fair
hearing before effecting the deduction.
[20]
In the present instance, in my view, the
Applicant has failed to demonstrate that the financial hardship she
will face as a result
of the deduction on her salary is incapable of
being addressed in due course if she was to institute proceedings in
this Court
in terms of
section 77
of the
Basic Conditions of
Employment Act or
before any other tribunal that may have
jurisdiction to entertain the matter. The Applicant has also not made
out a case of unlawfulness
in the deduction as will appear more in
details below, where the right not to be faced with a deduction is
discussed. The email
of the Applicant suggests that she was aware of
what was to happen before the deduction including the reason thereof.
Has
the Applicant discharged her duty of showing the existence of a clear
right?
[21]
In support of her case that her right had
been interfered with the Applicant relied on the provisions of
section 34
(1) of the
Basic Conditions of Employment Act. That
section prohibits an employer from making any deductions from an
employee’s remuneration unless, the employee agrees in writing.
It is indeed correct that as a general rule the Basic Condition
Employment Act prohibits deductions from employees’ salaries
without their prior consent. However, deductions without consent are
permitted where it is permitted by the law, collective bargaining
agreement and a court order or arbitration award. In these instances
all what the employer needs to do is to advice the employee
of the
error in payment and the deduction made or to be made. See
Papier
and others v Minister of Safety and Security and others (2004) 25 ILJ
2229(LC)
.
[22]
In
Sibeko v
CCMA
(2001)
JOL 8001
(LC)
the Ravelas J in dealing
with the issue of the deductions said:
“
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.”
[23]
The email which the Applicant addressed to
the respondent on 1
st
June 2009, does not support the version of the Applicant that the
Respondent was not entitled to deduct the over payment which
was made
to her erroneously. The administrative error arose when the Applicant
was granted a company vehicle. At that point the
car allowance which
was paid to the Applicant should have been discontinued. In paragraph
4 (four) of the email the Applicant writing
about the amount to be
deducted states:
“
Ek
vra dat jul groot asb met hierdie R8000,00 kan teregmoet kom, kan ons
asb ‘n releeling maak vir afbetaling. Ek wag vir
antwoorde op
drie positiwe onderhoude, ek sal werk kry, so dan sale k lul terug
betaal asb.”
The
above is repeated in the last paragraph of the same email.
[24]
The Applicant’s attorney argued
during his submission that there was no provision for a car allowance
in the two salary pay
slips of the Applicant which were attached to
the founding affidavit and therefore there was no basis to deduct
from the salary
of the Applicant an amount related to car allowance.
However, he conceded at the end of his argument that the employee was
not
entitled to a vehicle allowance.
Conclusion
[25]
In the light of the above and the
circumstances of this case, I am satisfied that no special
circumstance exists warranting an urgent
relief for the Applicant.
The Applicant has also failed to show that she has a real right in
the amount deducted from her salary.
As concerning costs, it would
not be fair, in my view, to allow costs to follow the results.
[26]
In the premises the application is
dismissed with no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
9
th
June 2009
Date
of Judgment :
23
rd
June 2009
Appearances
For
the Applicant :
Mr W P Scholtz of Jansen Incorporated
For
the Respondent: N/A