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[2013] ZALCPE 9
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Christiane v Member of the Executive Council for the Department of Health NO and Another (P585/10) [2013] ZALCPE 9 (30 April 2013)
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
case no: P 585/10
In the matter between:
SUSANNA MARIA ELIZABETHA
CHRISTIANE
Applicant
and
THE MEMBER OF THE
EXECUTIVE COUNCIL FOR THE DEPARTMENT OF HEALTH (
N.0.
)
First
Respondent
THE SUPERINTENDENT-GENERAL
FOR THE DEPARTMENT OF HEALTH (
N.0.
)
Second
Respondent
Heard: 14 September 2012
Delivered: 30 April 2013
Summary:
(Underpayment-unilateral reduction in sessional hours
– s 9 of BCEA not superseding contract – Hours of work
not subject
to BCEA – employee earning more than BCEA earnings
threshold - terms of contract binding on new employer after 197
transfer).
JUDGMENT
LAGRANGE, J
Introduction
[1] The applicant, Dr S M E Christiane, claims that the respondent
unlawfully reduced her salary between July 2010 to the date
on which
her contract expired on 31 March 2011. The parties agreed to deal
with the matter on the basis of a stated case on common
cause facts.
Common cause facts
[2] The applicant was employed under a one year contract for a
part-time medical practitioner commencing on 1 April 2010, concluded
with the Dordrecht Provincially Aided Hospital (‘the
hospital’), her employer.
[3] The contract provided amongst other things that the applicant was
"awarded a maximum of 40 sessions per week" at
a rate of
R267-00 per session, whether actually worked or on call.
[4] The hours stipulated were the hours worked by the applicant in
terms of which her remuneration was calculated from 1 April
2010 to 1
August 2010, at which point the respondent informed her that she was
only entitled to work a maximum of 20 sessions at
the hospital.
[5] The hospital and the Emalahleni Sub District Health Centre (‘
the centre’), where the applicant also worked at
the time, were
taken over as going concerns by the Department of Health (Eastern
Cape) on 1 July 2010 in terms of section 197 of
the Labour Relations
Act, 66 of 1995 (‘the LRA’).
[6] At the time of the transfer the applicant worked 40 sessions at
the hospital and 20 at the centre. According to the respondent,
the
decision to reduce the applicant sessions, and correspondingly her
remuneration, was motivated by the fact that she was working
more
than 40 sessions, taking into account the sessions at both the
hospital and the centre. The motivation for the change was
a policy
which Sessional hours of part-time health professionals at 20 hours.
[7] The applicant was asked to sacrifice her sessions at the centre
and to devote 20 sessions to the hospital only, or accept full-time
employment in the Department. When she refused to do so, her sessions
at the hospital were unilaterally reduced to 20.
The issue to be determined
[8] The parties agreed that the only issue to be determined by the
Court is whether the respondents’ breached the applicant’s
contract with the hospital by unilaterally reducing sessions she was
entitled to perform there, and the consequential relief, if
any,
flowing therefrom.
Evaluation
[9] There is no dispute that the applicant’s contract of
employment with the hospital was transferred unchanged to the
Department
when the 197 transfer took place. This follows from the
provisions of section 197 (2) (a) of the LRA which provides that:
"The new employer is automatically substituted in the place
of the old employer in respect of all contract of employment in
existence immediately before the transfer."
[10] The respondents’ only defence to the applicant’s
claim is that if it allowed the applicant to continue to work
those
hours and her 20 sessions at the centre, a total working hours would
amount to 60 hours a week which was contrary to section
9 of the
Basic Conditions of Employment Act 75 of 1997 (‘the BCEA’),
which states:
"(1) Subject to this chapter, an employer may not permit an
employee to work more than-
(a) 45 hours in any week; and
(b) nine hours in any day if the employee works for five days or
fewer in a week; or
(c) eight hours in any day if the employee works on more than five
days a week.
(2) An employee's ordinary hours of work in terms of subsection
(1) made by agreement to be extended up to 15 minutes in a day but
not more than 60 minutes in a week to enable an employee whose duties
include serving members of the public to continue performing
those
duties after the completion of ordinary hours of work."
[11] The applicant denies the validity of this defence because she
was earning more than the threshold above which section 9 of
the BCEA
does not apply. The applicant’s salary was R 45,924 per month,
or R551,088 per year. On 14 March 2008, the Minister
of Labour issued
a notice in terms of Section 6(3) of the BCEA, determining that all
employees earning in excess of R149 736 per
annum be excluded from
sections 9, 10, 11, 12, 14,15, 16, 17(2), 18(3) of the Act with
effect from 1 March 2008. This threshold
was applicable during the
period of the applicant’s contract
.
1
[12] In the light of the earnings’ threshold being
inapplicable, the applicant’s weekly working hours were not
limited
by section 9 of the BCEA, and the respondents could not rely
on it to enforce a unilateral reduction of the applicant’s
working
hours at the hospital.
[13] In the light of the above from July 2010 until her last payment
in April 2011 the respondents were liable to pay the applicant
for 40
hourly sessions per week in terms of her contract of employment with
the hospital, which remained in force when the said
hospital was
transferred to the Department of Health (Eastern Cape) in 2010 under
s 197
of the
Labour Relations Act 66 of 1995
.
[14] Consequently, when the respondents reduced the applicant’s
sessions at the hospital to 20 per week, that amounted to
an unlawful
breach of her contract, and the respondents are liable to pay her the
difference between the payments she received
and what she ought to
have received.
Value of the claim
[15] At the hearing of the matter, an actuary’s certificate of
value was submitted by the applicant in support of her claim,
which
was drawn up on the assumption that the applicant was owed money for
underpayments after April 2011 as well. A revised certificate
of
value was issued by the actuary S Kroon and filed on 14 September
2012, but there was a slight discrepancy between his calculation
of
the applicant’s monthly remuneration and the ordinary method of
calculating the same. Thus he based his calculation on
a monthly
salary of R 45,994 as opposed to R 45,924, which is the figure the
respondents’ were prepared to accept as correct.
The
respondent’s figure is derived from the normal calculation for
monthly remuneration which is weekly remuneration multiplied
by a
factor of 4.3 weeks, which in this case can be expressed as: (R 267 x
40) x 4.3 = R 45,924. I have used this figure to calculate
the
quantum and reduced it by half to take account of the fact that the
applicant was paid for 20 sessions per week. Moreover,
I should
mention that although the actuary’s calculation for the payment
due at the end of July 2010 indicates the applicant
was paid for less
than 20 sessions per week on that occasion, I have no evidence before
me on which to assume that is correct,
so I have applied the same
shortfall to that month that would have been a result of the
reduction of weekly sessions to twenty.
[16] The parties agreed that interest on any amounts owing was due
a
tempore morae
and accordingly interest is due on each
underpayment from the month end when payment fell due.
Costs
[17] It was argued that the respondents should pay the applicant’s
costs on a punitive scale but I am reluctant to make such
an order,
even though this matter should have been settled by the respondent,
in circumstances where there was not clear written
notice given to it
in advance that the applicant would seek such an order because of the
respondent’s persistence in resisting
the applicant’s
claim when its defence had no merit.
Order
[18] Accordingly -
18.1. The respondents breached the applicant’s contract of
employment when they unilaterally limited the applicant to work
only
20 sessions per week at Dordrecht Provincially Aided Hospital during
the period 1 July 2010 to 30 April 2011.
18.2. The respondents, in their official capacities as
representatives of the Department of Health (Eastern Cape), are
accordingly
liable to the applicant for underpayment of her
remuneration, and for interest calculated
a temporae mora
, in
the amounts set out in the table below, amounting in the aggregate to
R 314,161–05 (three hundred and fourteen thousand,
one hundred
and sixty one rands and five cents).
Due Date
Underpayment
Interest due on 30 April
3013
31-Jul-10
R 22 962.00
R 9 789.99
30-Aug-10
R 22 962.00
R 9 497.46
30-Sep-10
R 22 962.00
R 9 195.18
31-Oct-10
R 22 962.00
R 8 892.90
30-Nov-10
R 22 962.00
R 8 600.37
31-Dec-10
R 22 962.00
R 8 298.09
31-Jan-11
R 22 962.00
R 7 995.81
28-Feb-11
R 22 962.00
R 7 722.78
31-Mar-11
R 22 962.00
R 7 420.50
30-Apr-11
R 22 962.00
R 7 127.97
SUB-TOTALS
R 229 620.00
R 84 541.05
AGGREGATE AMOUNT DUE
R 314 161.05
18.3. The Department of Health (Eastern Cape) must pay the applicant
the aggregate amount in paragraph 18.3 above within 30 calendar
days
of the date of judgment.
18.4. The Department of Health (Eastern Cape) must pay the
applicant’s costs including the costs of counsel and the
applicant’s
reasonable disbursements incurred in attending the
hearing on 14 September 2012.
_________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT: J Grogan, SC instructed by Wheeldon, Rushmere & Cole
FIRST RESPONDENT: M Simoyi instructed by the State Attorney, Port
Elizabeth
1
While
the retrospective effect of this notice for the period 1 to 14 March
2008 (R300, RGN 8853, GG 30872, 14/03/2008), which
replaced an
earlier notice (R 100, GG No.30720, 14/02/2008), may be doubt, the
determination was applicable during the period
of the applicant’s
contract.