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[2011] ZALCPE 15
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Cenge and Others v MEC Department of Health, Eastern Cape and Another (P578/11, P579/11, P580/11) [2011] ZALCPE 15; (2012) 33 ILJ 1443 (LC) (6 December 2011)
REPUBLIC OF SOUTH
AFRICA
Not Reportable
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT PORT
ELIZABETH)
Case Nos: P578/11
P579/11
P580/11
In the matter between:
ZIYANDA PATIENCE CENGE
…........................................
First
Applicant
LULAME SWEETNESS
KINASE
…..............................
Second
Applicant
bUSISWE WELEKAZI MZAMO
…....................................
Third
Applicant
and
THE MEC, DEPARTMENT OF
HEALTH,
EASTERN CAPE
…........................................................
First
Respondent
THE HEAD OF
DEPARTMENT, DEPARTMENT
OF HEALTH, EASTERN
CAPE
….................................
First
Respondent
JUDGMENT
LAGRANGE, J:
This matter consolidates
three separate applications brought by each of the individual
applicants respectively, relating to nearly
identical claims for
urgent relief
The applicants have
approached the court on an urgent basis to prevent the respondents
from making deductions from their salaries
for a refund of a special
skills allowance paid to them between 1 July 2010 and 31 March 2011.
They were notified on or
about early August 2011, that they were being translated to the new
Occupationally Specific Dispensation
with effect from 01 July 2010.
In the same letter they were advised that they would have to repay
the Scarce Skills Allowance
they received from 01 July 2010, which
would be ‘recovered from the first lump sum arrear salary’
they would be paid.
On 7 November 2011, they
received another letter adviseing them that the amount of the Scarce
Skills Allowance they had previously
received over nine months would
be recovered in six months starting from November 2011.
They made
representations to the respondents about the impact of such large
deductions, and also queried why the deduction had
apparently not
been made from the first arrear salary payment made as advised in
the letter of August. Lastly, they complained
that it appeared that
the amount the respondents proposed to deduct from their salary was
the gross amount of the allowance and
not the nett amount after tax,
which is what they received at the time. They made representations
through their attorney but
the respondents did not address their
queries and concerns.
They allege that the
proposed deductions will be made contrary to the
section 34
of the
Basic Conditions of Employment Act, 75 of 1997
which states:
“
34(1)
An 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 or 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 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.
(3)
A
deduction in terms of subsection (1)(a) in respect of any goods
purchased by the employee must specify the nature and quantity
of
the goods.
(4)
An
employer who deducts an amount from an employee’s
remuneration in terms of subsection (1) for payment to another
person must pay the 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
overpayments 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.
In terms of
section 34
it is clear that the only basis on which the employer would be
entitled to make the deductions would be under the provisions
of
subsections 34(1) (a) or (b) or 35(1)(a).
In the respondents
letter to employees it implies that the amount can be deducted in
terms of Resolution 2 of 2010 of the Public
Health and Social
Development Sectoral Bargaining Council. The only provision of that
agreement which might be material to the
matter is clause 4.1.9,
viz:
“
4.1.9
Consolidation of Special Skills Allowance
4.1.9.1 The Special
Skills Allowance payable to certain categories of health
practitioners who occupy a post in a therapeutic, diagnostic
or
related allied health profession in terms of the Public Health and
Welfare Sectoral Bargaining Council (PHWSBC), Resolution
1 of 2004
shall be terminated on implementation of this agreement.
4.1.9.2 The Special
Skills Allowance is incorporate into the OSD remuneration structure
with effect from 1 July 2010.
”
Clearly these provisions
envisage that the special skills allowance will be treated as part
of the retrospectively implemented
OSD remuneration structure.
However, nothing in this provision suggests how or when the amount
will be recovered, or whether
previous special skills allowance
payments would simply be offset against the backpay for the OSD
remuneration adjustment. While
I agree that the provision indicates
that an employee would not be entitled to the backpay for arrear OSD
remuneration and the
special skills allowance, the agreement
captured in the resolution does not deal with the mechanics of how
the offset would be
implemented. The respondent has simply chosen to
do it by way of deductions over six months.
It is clear the amounts
paid to employees as special skills allowances cannot be deemed to
have been overpayments made in error
and therefore
section 34(5)(a)
does not apply.
In the circumstances
there is no evidence that either
section 34(1)
or
34
(5) of the BCEA
can be relied on by the respondents to lawfully make the proposed
deductions. The most that can be said is that
the collective
agreement contained in Resolution 2 of 2010 implicitly acknowledges
that employees are only entitled to receive
the OSD allowance
retrospective to 1 July 2010,
less
the amount previously
received as a special skills allowance for the period 1 July 2010
and 31 March 2011.
In his oral submissions,
the applicants’ representative indicated that the applicants
were willing to repay the special
skills allowance within a 12 month
period, provided the amounts deducted are the nett, after tax,
amounts of the allowances.
This proposal is the
kind of agreement that the respondent might have reached if it had
been willing to engage the employees,
as they ought to have done.
Conclusion
I am satisfied that the
deductions which the respondents propose to make would be made in
breach of the provisions of
section 34
of the BCEA and the
applicants are entitled to prevent the same taking place by way of
an urgent interdict, given that the amounts
are not inconsiderable.
The application was only
made necessary by the respondents failure to engage with the
applicants to agree on a reasonable repayment
period and in the
circumstances there is no reason they should not be entitled to
their costs.
Order
In the circumstances,
The applications
brought under the respective case numbers P578/11, P579/11 and
P580/11 are consolidated in these proceedings.
The matter is dealt
with as one of urgency and departure from the normal provisions of
Rule 7 of the Labour Court Rules in so
far as time limits are
concerned is condoned.
The respondents are
prohibited from deducting from their monthly remuneration the
amounts owing by the applicants for Special
Skills Allowances
received by them for the period 1 July 2010 and 31 March 2011over a
six month period commencing in November
2011;
The respondents may
only deduct from their monthly remuneration the amounts owing by
the applicants for Special Skills Allowances
received by them for
the period 1 July 2010 and 31 March 2011over a twelve month period
commencing in December 2011, each deduction
being 1/12 (one
twelfth) of the amount of the special skills allowance received by
each applicant for the period 1 July 2010
and 31 March 2011 and
still owing to the respondents at the date of this judgment, less
any tax paid on that allowance.
The respondents must
pay the applicants’ costs of the consolidated application.
ROBERT LAGRANGE
JUDGE OF THE LABOUR
COURT
Date of hearing : 5
December 2011
Date of judgment: 6
December 2011
(In chambers)
Appearances:
For the applicants : Mr K
Nondabula
No appearance for the
respondents