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[2013] ZALCJHB 201
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Ley v Gateaway Technology (Pty) Ltd t/a Iserve (J 1675/11) [2013] ZALCJHB 201 (8 July 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case No: 1675/11
not reportable
In the matter between:
PETRUS LEY
...........................................................................................
APPLICANT
And
GATEWAY TECHNOLOGY
(PROPRIETARY) LIMITED t/a ISERVE
..............................................
RESPONDENT
Heard: 18 OCTOBER 2012
Delivered: 8 JULY 2013
Summary: An employee may not refuse to refund his/her employer
training costs he/she is required to refund in terms of his/her
contract
of employment without legal grounds for the refusal.
JUDGMENT
LA
LLIE
, J
The respondent is in the business of implementation and development
of business solutions using SAP and related software. Its
core
business is to build business solutions that meet its customers’
requirements. It is the duty of the respondent’s
employees to
assist its clients with the implementation and costing of SAP. The
respondent, therefore, encourages its employees
to obtain intensive
and specified training on SAP modules at SAP Training Academy for
those employees to obtain a SAP certificate
in each module.
The respondent employed the applicant as a consultant in August
2008. Paragraph 8 of the contract of employment entered into
between
the parties (the contract) reads as follows:
‘
TRAINING
SKILLS AND COSTS:
Should the employee attend any
training course and/or seminar at the cost of the company and
thereafter leave the company’s
employ for any reason within 36
months (thirty six) months of such training and/or seminar, the cost
shall be refunded to the company
prior to the employee’s
departure from the company. The company reserves the right to recover
any fees or part of the fees
owing as a deduction from the employee
final salary. The company does, however, have an option at its
discretion to waive these
costs or part thereof should they deem it
equitable.’
The respondent’s training policy is consistent with clause 8 of
the contract.
The applicant submitted that, in June 2009, he was enrolled at the
SAP academy to be CO certified. It is common cause that the
training
cost R70572.00. The respondent gave unchallenged evidence of the
actual modules the applicant attended. They are Management
Accounting I and II. The training ran from 11 to 25 May 2009 and 25
May to 5 June 2009. Each Module costs R31 920.00. The
certification examination was R 3306.00. He obtained the SAP
certification in Management Accounting having re-written his
certification
examination on 21 August 2009.
The applicant tendered his resignation on 1 July 2011 and the
respondent deducted a portion of the training costs from the
applicant’s last salary, leaving a balance of R34 163.65.
In this application, the applicant seeks an order against
the
respondent for the payment of his salary for the month of July 2011
in the amount of R26 296.34. The applicant submitted
that the
deduction of his full leave and notice pay is unlawful and in
contravention of section 34 of the Basic Condition Of
Employment Act
75 of 1997(the BCEA). He further challenged the respondent’s
failure to give him reasons for paying back
the full amount of a
debt he signed no acknowledge of debt for. He finds the part of
clause 8 of his contract which gives the
respondent discretion to
waive training costs or part thereof unfair and open to abuse. He
claims that he attended the training
at the respondent’s
election and he did not benefit from it.
This application is opposed by the respondent on the basis that the
deduction was based on clause 8 of the contract which the
applicant
was at all times aware of. He attended the training at his request
and benefited from it. The respondent submitted
that it did not
breach section 34 of the BCEA when effecting the deduction.
It is common cause that the applicant attended the training which
costs the responded R70542.00. He signed the contract clause
8 of
which required him to refund the respondent training costs prior to
his departure, in the event of his leaving within 36
months of the
training. He resigned before the expiry of 36 months after the
training and he was liable to refund the respondent
before his
departure. He was aware of the provisions of clause 8 of the
contract, firstly, because he signed it. Secondly, on
6 July 2011,
after he tendered his resignation, he made enquiries about the
repayment of the training costs as he had resigned
within 36 months
from the date of training.
Section 34 of BCEA provides as follow:
‘
(1) An
employer may not make any deduction from an employee’s
remuneration unless-
(a) Subject
to the subjection (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.
(1) 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 deduction 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
deduction from the employee’s remuneration in terms of this
subsection do not exceed one-quarter of the employee’s
remuneration in money.
(2) A
deduction in terms of subsection (1) (a) in respect of any good
purchased by the employee must specify the nature and quantity
of the
goods.
(3) An
employer who deducts an amount from an employee’s remuneration
in terms of subsection (1) for payments 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.
(4) 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.’
Section 34(1) (a) of the BCEA permits an employer to make a deduction
from an employee’s remuneration when the employee agrees
in
writing to the deduction in respect of a debt specified in an
agreement. It is common cause that the applicant agreed in writing
in
the contract of employment to refund the respondent training costs
before his departure when leaving within 36 months of the
training.
The deduction is in compliance with section 34 (1) (a) in that the
applicant agreed in writing to the deduction and the
debt including
the time by when it was payable. This is clearly specified in the
contract of employment. I do not agree with the
applicant that
Section 34 (2) of the BCEA is applicable in this matter as it does
not deal with reimbursing the respondent for
loss or damage.
The applicant’s allegation that he attended the training on
the instructions of the respondent and that he did not benefit
from
it as he did not apply the knowledge he acquired from it is of no
moment. The contract refers to attendance of training.
The
respondent submitted that the applicant attended the training which
enhanced his knowledge and improved his chances of being
employed at
his request. The applicant did not file a replying affidavit. In
Plascon-Evans Paints v Riebeeck Paints (Pty) Ltd,
1
it was held that in application proceedings, a court will generally
accept the version given by a respondent unless the allegations
of
the respondent are so far-fetched and untenable that the Court is
justified in rejecting them merely on the papers. I accept
the
respondent’s version that the applicant attended training at
his request and benefited from it because his version
is far-fetched
and untenable. The applicant attended the first training and saw it
fit to request to attend the second one. His
conduct is consistent
with his version that there was value in attending the training.
The applicant’s submission that part of clause 8 of the
contract which gives the respondent a discretion to waive training
costs is unfair and open to abuse does not take the applicant’s
case any further. He did not disclose the reasons for the
submission
and how it is open to abuse. The applicant failed to disclose how
the alleged unfairness and abuse affected him. The
applicant
proffered no valid or lawful reason for alleging that the deduction
was unlawful. His application cannot succeed.
I found no reason for costs not to follow the result.
[11] In the premises, the following order is made:
11.1. The application is dismissed with costs.
_______________________
Lallie, J
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr C Bailie of CA Bailie Attorneys
For the first Respondent: Advocate P Bosman
Instructed by: Edward Nathan Sonnenbergs Inc
1
[1984] ZASCA 51
;
[1984]
(3) SA 623
(A) at
634E-635C.