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[2014] ZALCJHB 78
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South African Medical Association obo Boffard v Charlotte Maxeke Johannesburg Hospital and Others (J2469/13) [2014] ZALCJHB 78; (2014) 35 ILJ 1998 (LC) (20 March 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: J 2469/13
In
the matter between:
THE
SOUTH AFRICAN MEDICAL ASSOCIATION
Applicant
obo
PROFESSOR K D BOFFARD
and
CHARLOTTE
MAXEKE
JOHANNESBURG First
Respondent
ACADEMIC
HOSPITAL
GAUTENG
PROVINCE : DEPARTMENT OF HEALTH Second
Respondent
UNIVERSITY
OF THE
WITWATERSRAND Third
Respondent
Heard:
11 March
2014
Delivered:
20 March 2014
Summary:
lawfulness of deductions made against remuneration of an employee by
a public sector employer. Deductions not lawful in
absence of
compliance with section 34 of the BCEA and section 38 of the Public
Service Act.
JUDGMENT
NGCUKAITOBI
AJ
INTRODUCTION
1.
Between September and November 2012 Professor Kenneth David Boffard
(“Professor Boffard”) took various types of
leave from
his employment with the first respondent. During the period of
his absence he was paid his remuneration.
Without
any
notice to him, from December 2012, the first and second
respondents began deducting
vast sums of money
from his remuneration
. By the time
the
South African Medical Association, on behalf of Professor Boffard,
brought the current proceedings in December 2013
,
the
total amount of
the
deductions was
R242 222,26.
2.
The first and second respondents argue that these deductions
were
made because
the leave taken by
Professor
Boffard
during the periods aforementioned was not in
compliance with the leave procedure. This is because, so it is
said, the
“
leave form
that the applicant submitted
had only two signatures.
” The correct procedure
,
it is said,
is that “
The leave application form
submitted to HR office should contain three signatures, i.e. that of
the applicant, that of his direct
supervisor and that of the CEO.
”
3.
The question
for determination
is whether
an employer in the public service is entitled to deduct monies from
an employee’s remuneration where it alleges
that an employee
has been on unauthorised leave. If so, what procedures
should
be followed in order to carry out such deductions
.
Although there was a dispute pertaining to whether the leave was
authorised or not, it was common cause that the deductions
were not
preceded by any hearing whatsoever and were not consensual
as
between
Professor Boffard and his employers, being the Gauteng
Department of Health and the University of the Witwatersrand
(“
Wits”
). I shall return to th
is
issue
later but wish to set out the matrix
of fact in this application.
MATERIAL
FACTS
4.
Professor Boffard was employed by the
Wits
as a Professor of Surgery and the Charlotte Maxeke Johannesburg
Academic Hospital
(“
the
Hospital”
)
as Clinical
Head of the Department of Surgery at the rank of Chief Specialist:
Department of Surgery. The Hospital is an academic
hospital
which is
also a public hospital. As
such, it is managed by the Department of Health in the Gauteng
Province. Professor Boffard
accordingly reported to the
Department of Health in relation to the performance of his functions
as Clinic Head of the Department
of Surgery at the Hospital.
5.
During July 2012 Professor Boffard applied for sabbatical leave to
attend a
n overseas
conference and for a
period of study from 26 August 2012 to 1 December 2012
.
6.
On 8 August 2012 the former Chief Executive Officer of
the
Hospital, Dr T E Selebano, informed Professor Boffard that his
request for sabbatical leave had been rejected. The explanation
given was
that the application did not
comply with the departmental study leave policy which
required
six months advance
notice
. Professor
Boffard was informed that he should “
consider the option of
utilising [his] available vacation leave credit and/or vacation leave
without pay should the available leave
credit prove to be
insufficient to cover the remainder of the period of [his] absence.
”
In this respect he was advised to contact the “
Institutional
Leave Office to be provided with the necessary information
”,
after which the vacation leave application form should be forwarded
“
for further approval and consideration accordingly by the
Chief Executive Officer
”.
7.
On 13 August 2012 Wits addressed a letter to Professor Boffard
in
response to the application for leave
. In that letter
Wits informed Professor Boffard that his application for leave for
the periods 26 August 2012 to 1 December
2012 had been approved.
The letter of approval stated the following:-
“
The
faculty has noted the specific activities that have been listed and
believe all parties (Charlotte Maxeke Johannesburg Academic
Hospital,
Wits, patients and students) will benefit significantly from your
interaction with highly regarded colleagues in internationally
recognised centres. We also acknowledge that it was not
possible to grant the leave at an earlier stage since most of the
arrangements were made in the last few weeks.
Please
remember that you must submit a written report of the activities
undertaken during the leave period through the head of school
and to
the faculty human resource office within eight weeks of your return
to duty after each leave period. The report will
be forwarded
to the Staffing and Promotions Committee for its information and
comment.
”
8.
On 14 August 2012
Professor Boffard
addressed
a further letter to Dr Selebano.
He
referred
to the letter of Dr Selebano of 8 August 2012 which he “
noted
and appreciated
”
and
motivated
for approval of the trip, explaining its
importance in the academic community
. In relation to the
procedure followed in applying for leave the applicant stated that he
consulted with the head of the
study leave committee who
informed
him
that the application for sabbatical should first be
submitted to the University Study Leave Committee
where-after
it should be submitted
to Dr Selebano.
F
urthermore,
Dr Selebano was informed that “
the bulk of payments have
been made, and are not returnable
” in relation to the
trip. Finally,
Professor Boffard
informed
Dr Selebano that
he would ensure that all his work
commitments were covered during the six week period of absence
.
9.
Professor
Boffard
alleges that he was informed by the
Hospital
’s
leave office that in terms of the leave guidelines he could, in
addition to vacation or study leave,
take what has
been referred to as the “
50/50 leave
”.
This means he would be entitled to one day study leave with full pay
and one day vacation leave taken from his vacation
leave days, also
paid in full.
This
allegation is not
denied in the answering affidavit.
10.
Subsequent to the advice of the leave office
,
Professor Boffard
proceeded to apply for fourty-four
(44) days leave on
the
50/50
leave
basis
. He
submitted his application
form on 4 September 2012 to the leave office for forwarding to Dr
Selebano.
He
says this is according to what
he had been advised by Dr Selebano
, which
allegation is also not placed in dispute by the first and second
respondents
.
11.
The
study leave application
form
records that
Professor Boffard
was
entitled to eighteen (18) days study leave and thirteen (13) days
leave. This together with the entitlement to leave under
the
50/50 study leave policy of the Department effectively meant that
he
was
entitled to
a total
of
44 days leave. He accordingly requested 44 days
leave. He also stated that the overseas trip would be entirely
self-funded
and no financial support would be sought either from
Wits
or the Department.
Again none of these averments
are placed in dispute.
12.
There was no response to the letter of 4 September 2012
.
13.
Professor Boffard states
that he was not
informed by any
person
that his leave
application
had been declined.
Although the first and second respondents deny this allegation, it is
noteworthy that they have not advanced
any counter
facts
,
nor have they explained the basis for their denial. Instead
they
assert
that
Professor
Boffard
failed to obtain the approval of leave from Dr
Selebano. This is however no answer to the
allegation
that no-one
said that the
leave
application had been declined.
14.
Professor Boffard
proceeded to take leave
as follows:-
14.1
Between 8 September to 12 October 2012 he
took a period of 24 days. He worked normally, including
overtime from 13 October
2012 until 27 October 2012.
14.2
Between 28 October 2012 and 19 November
2012 he took a period of 15 working days as leave. He worked
normally, including overtime
from 20 November 2012 until 23 November
2012.
14.3
Between 24 November 2012 until 30 November
2012 he took a period of 5 days leave, where-after he returned to
normal duties.
15.
It was during th
e
period
between
8 September to 12 October 2012
that
a
decision to treat
the
absence
of
Professor Boffard
as unpaid leave was taken. On 13
September 2012 Mr S M Mavathulana, the Acting Director of Human
Resource Management
at the Hospital
addressed
a letter to Dr Selebano. In that letter he sought Dr Selebano’s
approval for the implementation of leave without
pay in respect of
the alleged unauthorised absence from 8 September to 30 November 2012
for a period of 44 days. Motivating
for why the leave should be
regarded as unauthorised, Mr Mavathulana noted that
Professor
Boffard
had failed to submit a formal application for
consideration and approval by Dr Selebano.
According
to him, Professor Boffard’s absence
was only established
on 10 September 2012 when the office of Dr Selebano attempted to
contact
him
in respect of a meeting
scheduled for 11 September 2012. It was alleged that
the
conduct
of Professor Boffard
amounted
to a “
gross act of misconduct which is viewed in a very
serious light
”. The recommendation made by Mr
Mavathulana was that the period of absence should be regarded as
unauthorised and be
dealt with
as leave
without pay and investigations should be conducted in re
lation
to
possible charges of misconduct against
Professor
Boffard
.
16.
The recommendations by Mr Mavathulana were approved by Dr Selebano on
14 September 2012.
On
1 October 2012,
the officials responsible for the administration of the payroll were
informed of the decision by Dr Selebano with
regard to “
the
implementation of leave without pay
”
against
Professor Boffard
. It was in these
circumstances that deductions were approved against the remuneration
of
Professor Boffard
.
17.
The deductions made were the following:-
17.1
December 2012 – R41 050,63;
17.2
February 2013 - R41 054,63;
17.3
March 2013 - R41 054,63;
17.4
April 2013 - R20 527,31;
17.5
June 2013 - R41 054,62;
17.6
July 2013 - R16 421,85;
17.7
August 2013 - R12 316,38;
17.8
September 2013 - R28 738,24.
18.
The total amount of the deductions is R242 222,26.
19.
As a result of these deductions in April 2013,
Professor
Boffard
lodged a grievance with the first and second
respondents.
He
stated in
the
grievance that Dr Selebano’s office was fully aware of
the leave application, the reasons therefore and the departure dates
since these had been submitted before the leave was taken.
Furthermore, the allegation that Dr Selebano had been unaware
of his
whereabouts on or about 11 September 2012
was also
addressed
.
It was stated that
this
could not be true because Dr Selebano had received the application
forms for leave in the week preceding the week of 11 September
2012
and would have received an email sent to all staff informing them of
the impending trip.
He was accordingly aware of
the whereabouts of Professor Boffard.
20.
Also recorded was
the fact that
Professor
Boffard
had never been informed that his leave had been
treated as unauthorised, particularly in view of the fact that the
University faculty
had expressly approved the application for leave.
The failure to communicate with him and the decision taken
subsequently
to treat his absence as unpaid leave,
it
was stated
, was in breach of the leave policy
.
This was because the policy says
that an application for
annual leave
should
not be unreasonably
refused and that any refusal of leave must be confirmed in writing,
explaining the reasons for the refusal
and appropriate arrangements
for rescheduling the annual leave. In his case
Professor
Boffard
stated that he had never been informed of any refusal
of his request for annual leave.
He
accordingly
sought the reversal of the deductions made from his salary.
21.
On 17 May 2013
Professor Boffard
received a
letter from the “
Office of the Chief Executive Officer
”.
The letter stated:-
“
This
letter serves to confirm the leave without pay deductions being made
from your salary in compliance with the instruction received
from the
former Chief Executive Officer Dr T E Selebano.
”
22.
It furthermore proceeded to
provide
a
breakdown of the deductions and future deductions. The letter
did not invite any representations
to be made on
the issue of deductions. The letter, however, contained an apology
for the failure to inform Professor Boffard timeously
of the
deductions.
23.
On 22 July 2013 the South African Medical Association, acting on
behalf
of Professor Boffard,
addressed a
letter to the Hospital in which a complaint was made pertaining to
the unlawful deductions and the failure to respond
to the grievance
timeously. The letter stated that the deductions did not comply
with
s
ection 34 of the
Basic Conditions of
Employment Act
75 of
1997
as well as
s
ection 38 of the Public Service Act,
1994. It demanded that the office of the CEO
should
immediately look into the grievance, failing which
proceedings
would be brought to court
. There was no response to this
letter.
24.
On 23 September 2013 the present attorneys of
Professor
Boffard
addressed a letter to the Hospital in which the
lawfulness of the deductions was challenged. The Department was
given until
4 October 2013 to
return the monies
which had been deducted by that stage
, failing which legal
proceedings would be instituted.
25.
On 1 October 2013 the Department responded to the letter from the
attorneys
of Professor Boffard
. It
appears in the meantime that Dr Selebano had been replaced and a new
CEO appointed. The letter of 1 October 2013
is signed by Ms G M
Bogoshi
, the new CEO
. Ms Bogoshi
stated the following in her letter:-
“
Please
be informed that I was made aware of your grievance through the
letters I received on the 23
rd
September
2013. In view of the fact that the grievance procedure has not
taken place since my appointment in February 2013
regarding the
matter, an independent person will be asked to review your grievance
and provide a recommendation. I will therefore
not respond to
the attorneys until I am confident that the internal processes were
done to be able to respond to you.
”
26.
On 3 October 2013 the attorneys
acting
for
Professor Boffard
again addressed a
letter to the Department. They
recorded
their undertaking to suspend
any
legal
proceedings in the event that the Department
agreed
to an
independent review of the grievance
which
had been filed,
by 14 October 2013.
C
ertain
proposals were made in relation to the grievance hearing but it was
made clear that if such proposals were not accepted,
legal
proceedings would be instituted. There was no response to this
letter.
27.On
17 December 2013 the current application was instituted. In
these proceedings
Professor Boffard
relies
on
s
ection 34 of the BCEA as well as
s
ection 38 of the Public Service Act.
In its answering affidavit the Department has conceded that the
deductions were not consensual
or preceded by any form of a hearing.
It has however contended that the deductions are not unlawful because
they constituted
repayment for monies paid in circumstances where
Professor Boffard’s
leave was
unauthorised.
The answering affidavit, however, is
completely silent on the question of the circumstances leading to the
payment of the monies
to Professor Boffard resulting in the need to
make the deductions in the first place. There is no explanation given
about when
it was discovered that the payments had been made to
Professor Boffard and whether the Department regarded the payments as
being
irregular or incorrectly made. Nor does the answering affidavit
say why the Department decided to deduct the monies without first
informing Professor Boffard of its intention to effect the
deductions.
THE
PRINCIPLES
The
authority to deduct monies paid to an employee
28.
The first question is whether the Department had authority to
make
the deductions, regardless of the issue of consent. A
convenient
starting point is the principle
of the rule of law entrenched by
s
ection
1(c) of the Constitution. That section provides that South
Africa is one sovereign democratic State founded on, among
others,
the value of “
supremacy of the Constitution and the rule of
law
”.
29.
The meaning
of this section was considered in the decision of
Fedsure
Life Assurance Ltd. & Others v Greater Johannesburg Transitional
Metropolitan Council & Others
[1]
where Chaskalson P (as he then was), Goldstone J and O’Regan J
stated the following:-
“
[58]
It seems central to the conception of our constitutional order
that the legislature and executive in
every sphere are constrained by
the principle that they may exercise no power and perform no function
beyond that conferred upon
them by law. At least in the sense,
then, the principle of legality is implied within the terms of the
interim Constitution.
Whether this principle of the rule of law
has greater content than the principle of legality is not necessary
for us to decide
here. We need merely hold that fundamental to
the interim Constitution is a principle of legality.
”
[2]
30.
The
Fedsure
decision of the Constitutional Court was concerned
with the exercise of legislative power at the local government
level. Subsequent
decisions however have affirmed the
constraints imposed on public power by the principle of legality.
31.
In
Democratic
Alliance v Ethekwini Municipality
[3]
Brand J A (on behalf of a unanimous court) had to consider
whether a decision by a local municipality to change street names
constituted administrative action within the meaning in
s
ection
1 of the
Promotion of Administrative Justice Act 3 of 2000
. He
decided that the decision was not administrative action. But
this did not mean the decision is not reviewable.
It would be
reviewable under
s
ection
1(c) of the Constitution. He explained in reference to his
conclusion that the decision is not administrative action:-
“
This
conclusion does not mean, however, that these decisions are immune
from judicial review. The fundamental principle deriving
from
the rules of law itself is that the exercise of all public power be
it legislative, executive or administrative – is
only
legitimate when lawful … This tenet of constitutional law
which admits of no exception, has become known as the principle
of
legality.
”
[4]
32.
It is accordingly clear that
any decisions taken
by the Department, as a repository of public power, must comply with
the principle of legality
. It is
of
little moment
that the
decision in issue is
not administrative action.
In this case, the
power of the Department to deduct monies from state employees or
civil servants to reverse situations of wrongly
paid remuneration, is
specifically governed by legislation in the form of section
38
of the Public Service Act. That section deals with “
wrongly
granted remuneration
”. Section 38(2) provides:-
“
If
an officer or employee contemplated in sub-section (1) has in respect
of his or her salary, including any portion of any allowance
or other
remuneration or any other benefit calculated on his or her basic
salary or scale of salary or awarded to him or her by
reason of his
or her basic salary –
…
(b)
been overpaid or received any such other benefit not due to him or
her –
(i)
an amount equal to the amount of the
overpayment shall be recovered from him or her by way of the
deduction from his or her salary
of such instalments as the head of
department, with the approval of the Treasury, may determine if he or
she is in the service
of the State, or, if he or she is not in so
service, by way of deduction from any monies owing to him or her by
the State, or by
way of legal proceedings, or partly in the former
manner and partly in the latter manner.
”
33.
The section accordingly permits a deduction from a salary of an
employee in circumstances where such employee has been
wrongly
paid
. However, such deduction is only permissible “
with
the approval of the Treasury
”. The Chief Executive
Officer of Charlotte Maxeke Hospital does not have such authority
under the Public Service Act.
Nor does the head of department
of the Department of Health, Gauteng Province.
No
case
has been made out to show that the
deductions were made in exercise of delegated authority
.
34.
In the absence of authority, the deduction is unlawful. It is
common cause that the monies were deducted from the salary
of the
applicant as contemplated by
s
ection 38 of
the Public Service Act. Given the manifest breach of
s
ection
38, I conclude that the deductions were
unlawful
and in breach of section 38 of the Public Service Act
.
The
procedure for the deductions
35.
The fact that the State has authority to make
deductions from employee’s remuneration to reverse wrongly paid
remuneration
will not necessarily render such deductions lawful.
Any
authority to deduct employees’ salaries or remuneration
provided by
s
ection 38 is subject to the
procedural constraints in
s
ection 34 of the
BCEA. Section 34 provides
, in the relevant
parts
:-
“
(1)
An employer may not make any deductions from an
employee’s remuneration unless –
a)
subject to sub-section (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.
…
5)
An employer may not require or permit and employee to –
(a)
repay any remuneration except for overpayments previously made by an
employer resulting from an error in calculating the employee’s
remuneration; or
(b)
acknowledge receipt of an amount greater than the remuneration
actually received.”
36.
It was common cause that the deductions herein were in respect of
the “
remuneration
”
paid
to Professor Boffard
. Indeed, on the definition of
remuneration provided in the BCEA, the deductions were
made
on the remuneration.
37.
The approach of the Labour Court to
s
ection
34
of the BCEA
has been to draw a
distinction between payments to which an employee is entitled and
payments where there is no such entitlement.
In
Sibeko v
CCMA & Others
(2001) JOL 8001
(LC) at issue was whether an
employer was entitled to adjust an employee’s salary in order
to reflect what had been contractually
agreed upon. On the
facts, the employer had erroneously paid an employee a higher salary
for a period of five months.
When it tried to adjust the salary
so as to reflect the agreed amount, the employee objected and
challenged the employer on the
basis that the act of the reduction of
the salary was in conflict with
s
ection
34(1) of the BCEA. Rev
e
l
a
s
J decided that such a claim fell outside the parameters of
s
ection
34 of the BCEA. She stated:-
“
It
is indeed so, that in terms of the
Basic Conditions of Employment
Act, an
employer may not deduct amounts from the salary or
remuneration of an employee without the employee’s consent.
Where
an employee was however overpaid in error, the employer is
entitled to adjust the income so as to reflect what was agreed upon
between the parties in the contract of employment, without the
employee’s consent.
”
[5]
38.
In the case
of
Valasce
v Wireless Systems CC
[6]
the facts were that as a result of an administrative error the
employee had received car allowance
payments
for
a period of eleven months. Because she was not
entitled
to a car allowance
,
the employer contended that it was entitled to deduct those monies
from her salary. A challenge was thereafter brought against
the
deductions on the basis that they were in conflict with
s
ection
34 of BCEA. Molahlehi J concluded that the car allowance
payments were made
erroneously
to
the
employee
and accordingly the employer was entitled to effect such deductions.
39.
It is apparent from these decisions that the view taken by the Labour
Court is that an overpayment as a result of an administrative
error
does not constitute remuneration as defined in terms of the BCEA.
Since it is outside the parameters of the BCEA, an
employer is not
required to obtain the consent of an employee before effecting the
deductions as required by
Section 34(1)
of the BCEA.
40.
An issue, however, not decided by either the
Sibeko
decision
or the
Valasce
decision is whether an employee is nevertheless
entitled to a fair hearing before an employer recovers an overpayment
as a result
of an administrative error. In my view it may well
be implicit from the
structure of the
BCEA
as a whole
that all instances involving
demands for repayment of money already paid to an employee should at
least be preceded by a fair hearing.
41.
Since this
case is in the public sector, it is useful to consider the approach
of this Court in respect of deductions made by the
state in its
capacity as an employer. In the matter of
Police
& Prisons Civil Rights Union obo Moyo v Minister of Correctional
Services & Another
[7]
an
employee was held by the employer to be responsible for an accident
involving a vehicle belonging to the employer. As a
result he
was required to pay for the damages sustained in the accident.
The employer began deducting monies from the employee’s
salary. This was despite the fact that the employee denied any
responsibility for the accident. An application was
brought to
the Labour Court based on
section 34
of the BCEA. Lagrange J
found that the deductions would be unlawful because they would
violate
section 34
of the BCEA and in any event the claim which the
employer sought to recover had prescribed.
42.
In
the case of
Cenge
and others v MEC, Department of Health, Eastern Cape and another
[8]
the government had paid the applicant employees certain monies as
“
special
skills allowance”
.
Sometime after the government had started paying the special skills
allowance, it introduced a new policy, by which the affected
employees would be entitled to a different benefit. Because of the
introduction of the new benefit, the employer decided that the
employees must return the monies which had been paid as part of the
special skills allowance. The employees challenged the
matter
before this Court. After referring to the provisions of
section 34
of
the BCEA, Lagrange J concluded that “
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)
.”
[9]
He
thereafter considered the meaning of
section 34(5)
, which allows an
employer to require a refund from an employee if the refund is
required from an overpayment made in error, in
the calculation of an
employee’s remuneration. He concluded that the payments of the
special skills allowance could not be
said to be payments of the kind
contemplated by
section 34(5)
of the BCEA.
43.
Another
decision is
Western
Cape Education Department v General Public Service Sectoral
Bargaining Council & Others.
[10]
In that case Steenkamp J dealt with the situation of constructive
dismissal. An employee had resigned complaining,
among others,
that the employer had withdrawn excessive amounts from her salary,
despite the fact that an application for leave
had been duly made.
He also took into account the fact that the provisions of section 38
of the Public Service Act gave the
relevant officials a discretion
when it comes to the deduction of monies from employees. The
application which was brought
to review an arbitration award was
accordingly dismissed.
44.
To return to the present facts, it seems reasonably certain that the
deductions are in conflict with section 34 of the BCEA.
The first and
second respondents have not pleaded that the monies were overpayments
made to Professor Boffard as a result
of erroneous calculation
of his remuneration. Section 34(5) of the BCEA therefore does not
apply. On the facts the payments appear
to have been made correctly
and not erroneously, on the basis that the leave of Professor Boffard
had been approved. The fact that
the leave had been approved by Wits
is not in dispute. Nor is it in dispute that Professor Boffard
followed the correct procedure
to apply for leave as advised by the
former CEO, Dr Selebano.
45.
The decision taken by Dr Selebano, after the event, also appears to
be at odds with the provisions of the leave policy. The
Department
did not refuse the leave at the time Professor Boffard went on leave.
It was reasonable for him to assume that the leave
had been approved
in the light of what he knew. Dr Selebano had told him what procedure
he must follow. He had followed the procedure
as advised. Wits had
approved his leave. The institutional leave office had told him he
would be entitled to a total of 44 days
leave on the 50/50 policy.
Although it was argued that the leave form should have been sent to
Dr Selebano before the leave was
actually taken, this is not borne
out by a close reading of the letter from Dr Selebano dated 8 August
2012. That letter simply
said that the leave form should be forwarded
to Dr Selebano once all the prior approvals had been made. This
indeed happened. All
approvals were obtained, after which the leave
form was sent to Dr Selebano. There was no indication, at all, that
anything was
amiss insofar as Professor Boffard was concerned. He was
accordingly acting reasonably in taking off, when he did on 8
September
2012. The leave policy of the Hospital –
echoing the provisions of Chapter 3 of the BCEA – contains a
provision
that leave should not be unreasonably refused.
46.
The claim by the first and second respondents in the answering
affidavit that the applicant was on unauthorized leave is not
substantiated. It is in conflict with the objective evidence.
The monies which were paid to Professor Boffard were
accordingly due
and owing to him. The Department had no right to regard those
payments as constituting the subject matter
of an overpayment.
47.
It is clear that Professor Boffard did not consent to the
deductions. Moreover, the respondents did not seek his consent
prior to effecting the deductions. That act too was in
violation of the BCEA. A factor which was taken into account
in
the
POPCRU
decision was whether the deductions would be in
excess of 25% of the monthly wages of the employee. That is
applicable herein.
It is clear that the deductions exceed 25%
of the employee’s monthly remuneration.
48.
In my view the deductions are unlawful and in conflict with
section 34 of the BCEA.
CONCLUSION
AND ORDER
49.
The applicant has established a clear right for the relief he seeks.
I can see no reason why he should not be entitled
to the relief
foreshadowed in the notice of motion.
50.
Accordingly the following order is made:-
50.1
It is declared that the conduct of the first and/or second
respondent in deducting the amounts of R242 222, 26 from the
remuneration
of Prof Boffard is in conflict with section 34 of
the
Basic Conditions of Employment Act 1997
and section 38 of the Public
Service Act, 1994.
50.2
The first and/or second respondent are directed to pay to Prof
Boffard the amount of R242 222,26 within a period of thirty (30) days
from the date of this order.
50.3
The payment of the amount in paragraph 50.2 above shall
include interest from December 2013 to date of payment.
50.4
The first and second respondent are ordered to pay the costs
of Prof Boffard in this application jointly and severally the one
paying
the other to be absolved.
_______________________
TEMBEKA
NGCUKAITOBI
ACTING
JUDGE OF
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Appearances:
For
the Applicant:
Mr I I Mahomed (of Hogan
Lovells)
For
the Respondent:
Advocate Ramoshaba (Instructed by the State Attorney)
[1]
1999
(1) SA 374 (CC).
[2]
There
were dissenting judgments given in this case, but there was no
disagreement in relation to these paragraphs. In fact, subsequent
judgments from the Constitutional Court and the Supreme Court of
Appeal have affirmed these passages as part of the lexicon of
South
Africa’s jurisprudence. See also
Affordable
Medicines Trust & Others v Minister of Health & Others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) at paras 48-49.
[3]
2012
(2) SA 151 (SCA).
[4]
Democratic
Alliance v Ethekwini Municipality
at para 21
[5]
At
para 6.
[6]
Case
No. J1137/09 (unreported).
[7]
2013 (34) ILJ 992 (LC).
[8]
(2012)
33
ILJ
1443 (LC).
[9]
Cenge
at para 7.
[10]
2013 (34)
ILJ
2960 (LC).