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[2013] ZALCJHB 1
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Masiye v MEC for Education: Mpumalanga (J3340/2012) [2013] ZALCJHB 1 (7 January 2013)
THE
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of interest to other judges
Case no: J3340-2012
In the matter between:
MASIYE ROSE
...........................................................................................................
Applicant
and
THE MEC FOR EDUCATION: MPUMALANGA
...................................................
Respondent
Heard: 4 January 2013
Delivered: 7 January 2013
Summary: Urgent application- claim
for unpaid salary- alternative remedy available in the form of a
claim under section 77(1) of
the BCEA.
JUDGMENT
MOLAHLEHI J
Introduction
This is an urgent
application which initially was set before this Court on 20 December
2012, but was postponed to January 2013,
to afford the applicant the
opportunity to properly serve on all the respondents. The applicant
seeks an order declaring the
non-payment of the salaries by the
respondent to be declared unlawful and further that the respondent
be ordered to effect payment
of the outstanding salaries within 24
hours of the order sought.
In its answering
affidavit, the respondent contended that all other employees except
for the applicant, Ms Masiye were not properly
before the Court. The
applicant’s counsel conceded to the point and withdrew the
names of all the other employees. Accordingly,
the matter now
concerns only the applicant, Ms Masiye, who will in this judgment be
referred to as, “the applicant”
Background facts
The applicant and the
deponent to the founding affidavit, is a Principal HR Officer,
employed as such by the respondent, at one
of its district in
Mpumalanga.
The applicant contends
in her founding affidavit that during September 2011, the respondent
informed employees through a letter
that Bohlabela district office
where they were all stationed was to relocate from the former Hoxani
College in Bushbuckridge
to the former Mapulaneng College of
Education, which is a distance of about 40 km.
It is common cause that
the employees were no happy with the plan to relocate the offices
from where they were to another place.
As a result of this the
matter was discussed with the union, NEHAWU and also at the
bargaining council.
According to the
applicant, the matter was resolved at the bargaining council on the
basis that the consultation process regarding
the relocation would
start a fresh.
It appears common cause
that at some stage the office in Mapulaneng were inspected by the
department of Labour and declared not
suitable for office use. It
further appears that it was for this reason also that the applicant
and other employees refused to
move to the Mapulaneng offices.
The applicant says that
during December 2012, there was a rumour circulating at the
workplace that certain employees are likely
not to receive their
salaries. The rumour was confirmed by their checking on the Persal
salary system. The applicant contends
further that they did not know
the reason for the non-payment of their salaries and enquiries with
the respondent produced no
results.
The applicant contends
in her replying affidavit that she cannot be said to have absconded
as at all material times, the respondent
was aware and had engaged
with the union regarding the issue in dispute. It was submitted that
up until August 2012, the respondent
was aware that the applicant
was reporting at Hoxani and further that she recorded in her work
activity book throughout the period.
It is common cause that
the respondent relocated its offices to Mapulaneng and that the
decision to relocate was taken by the
Executive Council of the
Province. The respondent further concedes that the employees were
not happy with the relocation but
the problem was resolved through
consultation in particular with the representative union. According
to the respondent out about
54 employees only 23 did not accept the
relocation.
The respondent further
conceded that the department of Labour did issue a prohibition
regarding the new building to which the
employees were to be
relocated to but the problem was addressed after the department of
public works addressed the issues which
had been raised by the
department of Labour.
According to the
respondent, the applicant has refused to relocate to the new
building and has also failed to attend at their
work stations. The
respondent contends that the applicant and other employees have
absented themselves without reason and their
employment was for that
reason terminated by the operation of the law.
It was also argued that
reliance on the provisions of section 17 (5) of the Public Service
Act (the Act), was an afterthought
on the part of the respondent,
more particularly when regard is had to the fact that the respondent
did not in its answering
papers provide the specific day when the 30
days’ time frame as required by the Act commenced. It was for
this reason,
that it was argued that the court should interrogate
the basis of the respondent’s claim that the applicant’s
contract
was terminated by operation of the law.
The other reason for
seeking to persuade the court to interrogate the alleged termination
of the employment relationship was that
the respondent acted
inconsistently in that one of the employees who continue to report
at Hoxani continued despite this to receive
his salary.
The respondent on the
other hand argued that there was no basis for seeking an order
reinstating the salary of the applicant because
the employment of
the applicant was terminated by operation of the law as provided for
in section 17(5) of the Act. The respondent
relied on the provisions
of section 17(5) on the basis that the applicant failed to report
for duty at Mapulaneng and that the
termination of her employment
was not done earlier because the respondent was still awaiting a
report on the matter.
It is trite that section
17 (5) of the Act, provides for termination of employment by
operation of the law. The issue is not,
as was argued on behalf of
the applicant, that of absconding in the technical sense. Therefore,
the issue of whether the state
as an employer was aware of the
whereabouts of the applicant in terms of the provisions of section
17 (5) of the Act is irrelevant.
The essential requirement, to
sustain a case of termination of an employment by operation of the
law as provided for in the Act
is whether the employee was absent
without authority of the employer for a period of more than 30 days.
It was accepted on
behalf of the applicant that in light of all the papers before the
court that the matter should be considered
on the basis of a final
and not an interim order as prayed for in the notice of motion. It
follows that the test to apply is
that of determining whether the
applicant has in her papers satisfied the requirements of the final
interdict, which entails
showing that: (a) she has a clear right,
(b) there is interference with that right, and (c) there is no other
remedy available.
In arriving
at the conclusion at the end of this judgment, I do so with some
disquiet. In this regard there appears to be,
prima
facie
serious
questions to be answered by the respondent concerning the
termination of the employment of the applicant. I do not however,
considering the application of the principles of the law, believe
that it would be proper to interrogate the lawfulness of the
termination on the basis of the papers before me. It would seem to
me that a proper cause of action upon which the lawfulness
of the
termination of the applicant’s employment could be determined
is review, where all the factual issues relating to
the dispute can
be properly ventilated. It needs to also be pointed out
,
that
prima
facie
it
does not appear also that the conduct of the applicant is beyond
reproach.
In my view,
this matter essentially turns around the consideration of whether
the applicant has alternative remedy to address
her complaint. It is
trite that an application brought on an urgent basis should fail if
the applicant fails to show that there
is no satisfactory remedy
available that addresses his or her dispute.
1
The principle governing
this requirement is set out in
Minister
of Law and Order v Committee of the Church Summit,
2
, as follows:
‘
Concerning
the alternative remedy, the Courts have determined that it must be
adequate in the circumstances, be ordinary and reasonable,
be a legal
remedy and also grant similar protection to a party...
Generally
and applicant will not obtain an interdict if he can
be
awarded
adequate compensation or amends by way of damages.’
Turning to the case in
the present instance, there is a well-established common law
principle that in an employment relationship,
the duty of an
employee is to render services, and on the other hand the duty of an
employer is to pay wages for services rendered.
It would ordinarily
follow that failure by an employer to pay wages when they are due,
amount to breach of contract. In that
case, the options available to
an employee whose wages have not been paid, is either to accept such
a breach and terminate the
employment relationship or by holding the
employer to the terms of the contract and claim the outstanding
wages. The claim for
unpaid wages could be launched in either the
civil court or the Labour Court in terms of
section 77
of the
Basic
Conditions of Employment Act 75 of 1997
.
In the present instance,
the applicant has adequate remedy which she may obtain by either
approaching the civil court or the Labour
court in terms of
section
77
(1) of the
Basic Conditions of Employment Act. It
is for this
reason that I am of the view that the applicant’s application
stands to fail.
Costs
It would not be fair to
allow costs to follow the results in the circumstances of this case.
In the first instance, there are
serious questions which the
respondent has to answer in relation to its reliance on the
provisions of
section 17
(5) of the Act. The other point relates to
the manner in which the respondent dealt with this matter in
general. The respondent,
despite the engagement with the trade union
and for that matter also the applicant, only disclosed that it was
relying on the
provisions of
section 17(5)
, once it had received the
papers instituting these proceedings. This has to be understood in
the context where the respondent
contends that the termination
occurred during April 2012.
Order
In the premises, the
applicant’s application is dismissed with no order as to
costs.
_____________
Molahlehi J
Judge of the Labour Court of South
Africa
APPEARANCES:
FOR THE APPLICANT: Dolf Mosona
Attorneys
FOR THE RESPONDENT: Adv Matlejoane
Instructed by the State Attorney
1
See
Prest in
The Law and Practice of Interdicts
at page 45.
2
1994
(3) SA 89
(BGD) at 99F-G.