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[2011] ZALCJHB 194
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Naidoo v React Solutions (Pty) Ltd (J56/2011) [2011] ZALCJHB 194 (24 January 2011)
Not reportable
Of interest to other judges
IN THE LABOUR COURT OF SOUTH
AFRICA
HELD AT CAPE TOWN
CASE
NO: J 56/2011
In the matter between:
ROWENA
CANDICE NAIDOO
..........................................................
Applicant
and
REACT
SOLUTIONS (PTY) LTD
..................................................
Respondent
JUDGMENT
STEENKAMP J:
Introduction
This is an urgent application in which the applicant (the employee),
seeks an order that the respondent (the company) must pay
her salary
during her suspension pending a disciplinary enquiry.
Mr
Boda
, for the applicant, argued that the claim is one for
specific performance of her employment contract, more particularly,
an order
compelling the company to pay her salary. Mr
Orr,
for
the respondent, argued that the relief sought is in the nature of a
mandamus
and that she therefore has to satisfy the court that
she meets the requirements for a final interdict. He also opposed
the application
on the grounds that it is not urgent; that this
court has no jurisdiction to hear the dispute; and that the
applicant has alternate
remedies.
Background facts
The employee is an office coordinator. She alleges that she was
sexually harassed by the company's executive director, Jay Naicker,
on two occasions in 2008. She wrote an e-mail to Naicker in January
2009 saying that his unwanted advances made her feel very
uncomfortable. She requested him to restrict his contact with her to
work related issues and added: "I trust that this e-mail
does
not provoke any discrimination or victimisation in the workplace as
it is vital for us to establish the proper behaviour
going forward."
The applicant further alleges that, in August 2009, Naicker felt
jealous because she did not invite him to her birthday party
and
that he told her colleagues that this was a "career limiting
move".
On 6 October 2010 the applicant was removed as a director of the
company. She views this as a further example of victimisation.
The
company says that she was removed as a director because she had
removed confidential information from the company without
authorisation. I need not express a view on either of these
allegations. The allegation of sexual harassment and victimisation
is the subject of a CCMA arbitration set down for 3 February 2011.
The allegation that she had removed confidential information
is the
subject of a disciplinary enquiry that is, at this stage, also
scheduled for 3 February 2011.
On 9 November 2010 the applicant referred a sexual harassment
dispute to the CCMA. That dispute is to be heard on 3 February
2011.
On 8 November 2010 the company issued a notice to the employee to
attend a disciplinary hearing on 11 November 2010. She was
suspended
with pay pending the disciplinary hearing. Both parties instructed
attorneys. They agreed to postpone the disciplinary
enquiry and her
attorneys recorded that the employee "will continue to be paid
during the suspension which will remain in
place pending discussions
to be held between the parties and their legal representatives."
The settlement discussions were fruitless. The applicant was not
paid her salary for the month of December by the due date, which
was
the 25th of each month, or by the first business day after 25
December 2010, which was 28 December 2010. She was eventually
paid
on 31 December 2010. There is a dispute whether this was after
demand from the applicant’s attorneys. What is not
in dispute,
is that her salary was not paid on the due date.
On 12 January 2011 the company informed the employee that a
disciplinary enquiry would be held on 14 January 2011. Her attorneys
asked for more time to prepare. The company's attorneys agreed.
On 14 January 2011 the company suspended the employee without pay.
It did so because it formed the view that the employee "intended
prolonging her period of paid suspension as long as possible".
The company has now scheduled the disciplinary hearing for
3
February 2011. (It appears bloody-minded for the company to have
scheduled the disciplinary hearing for the same day as the
CCMA
hearing; however, I am not seized with that dispute).
The applicant now seeks an order compelling the company to continue
paying her salary whilst she is employed by it.
Jurisdiction
The applicant has coached the relief she seeks in the form of
specific performance. She asserts her right to payment in terms
of
her contract of employment and the Basic Conditions of Employment
Act.
1
Mr
Orr,
for the respondent, argued that the applicant
essentially calls on the court to determine whether the conversion
of her suspension
from paid to unpaid is unfair. In so doing, he
argues, the applicant expects the court to pronounce on an unfair
labour practice.
He argues that the Labour Relations Act
2
confers exclusive jurisdiction on the CCMA to determine an unfair
labour practice dispute.
In terms of section 77 (3) of the BCEA:
"The Labour Court has
concurrent jurisdiction with the civil courts to hear and determine
any matter concerning a contract
of employment, irrespective of
whether any basic condition of employment constitutes a term of that
contract."
And in terms of section 77A(e)
the Labour Court may make any appropriate order, including an order –
"making a determination
that it considers reasonable on any matter concerning a contract of
employment in terms of section
77 (3), which determination may
include an order for specific performance, an award of damages or an
award of compensation."
I am satisfied that this court does have jurisdiction to consider
the applicant’s claim for specific performance. She locates
her claim squarely within her contract of employment, which includes
a clause dealing with the payment of remuneration and a
general
clause that the contract will be otherwise regulated by the BCEA.
She specifically disavows any reliance on an unfair
labour practice.
Urgency
Mr
Orr
pointed out that this court has held previously that
financial loss does not create urgency.
3
But that is not an immutable principle. Mr
Boda
has also
referred to more recent authority that the court does have the power
to deal with the non-payment of salary on an urgent
basis.
4
This is so especially in th event where it is the employer that
prevents the employee from working. Also, as he has pointed out,
there are exceptional features to this case. The applicant has made
allegations of sexual harassment and victimisation. These
allegations are to be considered by the CCMA on 3 February 2011. She
considers the suspension without pay to be a perpetuation
of this
victimisation. Both parties have elected to engage the services of
attorneys to assist them in the pending disciplinary
enquiry. Her
ability to continue instructing attorneys without being paid her
salary will be severely hampered.
Given these exceptional circumstances, I consider it to be in the
interests of justice to deal with the matter on an urgent basis.
Clear right
The applicant asserts that the company is acting unlawfully by
failing to pay her salary. The non-payment is in breach of her
contract of employment and in breach of the agreement concluded on
11 November 2010 between the parties' attorneys.
The applicant continues to tender their services pending her
disciplinary hearing. It is the company that elected to suspend
her.
It complains that she is prolonging her period of suspension. But
the company, through its attorneys, agreed to postpone
the hearing
set down for 14 January 2011. Having considered the request for a
postponement to be unreasonable, it could have
continued with the
hearing and dealt with the objection there or at a later stage.
Instead, it stopped paying its employee.
Under the common law, unilateral suspension does not relieve the
employer of the duty to pay the employee. Neither does her contract
of employment make provision for such a step. She continues to
tender her services and is therefore entitled to her salary.
5
I am therefore satisfied that the claim for specific performance
should be granted.
Given my conclusion on this aspect, I need not deal with the
requirements for an interdict, including the question whether the
applicant would have an adequate alternative remedy by referring an
unfair labour practice dispute to the CCMA.
Costs
The applicant seeks costs on an attorney and client scale. In my
view, a punitive cost order is not warranted. However, there
is no
reason in law and fairness why costs should not follow the result.
Order
I grant the following order:
The forms and manner of service provided for in the rules are
dispensed with and the matter is disposed of as urgent.
The respondent is ordered to pay the applicant's salary during her
suspension and her further continued employment.
The respondent is ordered to pay the applicant's costs.
________________________________
ANTON STEENKAMP
JUDGE OF THE LABOUR COURT
Date of hearing:
21 January 2011
Date of judgment:
24 January 2011
For the applicants:
Adv FA Boda
Instructed by Saders attorneys
For the respondent:
Adv C Orr
Instructed by Tilney Inc.
1
Act
75 0f
[1811] EngR 449
;
1997
2
Act
66
of 1995
3
Tshwaedi
v Greater Louis Trichardt Transitional Council
[2000] 4 BLLR 469
(LC).
4
HOSPERSA
and another v MEC for Health, Gauteng Provincial Government
[2008] ZALC 45
;
[2008]
9 BLLR 861
(LC).
5
Insofar
as any authority is required for these principles, see, for example:
Hospersa (supra)
para
[17];
Myers v SA Railways &
Harbours
1924 AD 90C
;
Mogothle
v Premier of the Northwest Province
[2009]
30
ILJ
605
(LC),
[2009] 4 BLLR 331
(LC).