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[2015] ZALCJHB 8
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Sebatana v Ratton Local Municipality and Another (J 2069/11) [2015] ZALCJHB 8 (21 January 2015)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case no. J 2069/11
DATE: 21 JANUARY 2015
Reportable
In the matter between:
SEJAKE CASSIUS
SEBATANA
...................................................
Applicant
And
RATTON LOCAL
MUNICIPALITY
...............................
First
Respondent
GLEN LEKOMANYANE
N.O
.....................................
Second
Respondent
Heard: 06 June 2014
Delivered: 21 January 2015
JUDGMENT
SHAI AJ
Introduction
[1] This is an application in terms of
Section 77(3) and
Section 4
of the
Basic Conditions of Employment Act
75 of 1997
, as amended (“the BCEA”) for an order, inter
alia directing the first Respondent to pay the Applicant an amount of
R72, 873 in respect of his contractual claim for outstanding
remuneration.
[2] This claim consisted of an amount
of leave pay and the deductions made in respect of approved sick
leave without pay.
[3] The first Respondent has since the
delivery of this application, paid the Applicant an amount of R38,
064, 75 being an amount
for outstanding leave pay.
[4] It therefore follows that the
Applicant’s application is only in respect of the difference
between the amount paid to
him and the amount claimed in the
Applicant’s Notice of Motion, to wit R34, 808.31. This amount
is essentially for the deducted
amount for approved sick leave
without pay.
The facts
[5] The Applicant has been employed by
the first Respondent with effect from 1 April 2003. He rose within
the first Respondent’s
ranks to the position of Local Economic
Development Manager with effect from January 2006 until his
resignation on 30 September
2011.
[6] The Applicant contended that he was
on sick leave as contemplated in clause 3.2. of Part B of the Main
Collective Agreement
and
Section 22
and
23
of the BCEA. The said
sick leave was for the period from 20 July 2011 to and including 12
September 2011. The Applicant contended
that his sick leave cycle
had not depleted and notwithstanding the 28 sick leave days he still
had sick leave credits.
[7] Applicant contended that after the
said sick leave period of more than 2 consecutive days he submitted
all his medical certificates
together with his sick leave application
forms to the first Respondent’s Human Resource Department.
[8] On the 16 September 2011, he
received a letter from the office of the second Respondent, advising
him that the said sick leave
was approved without pay,
notwithstanding that he submitted medical certificate certifying him
temporarily unfit to perform his
duties for the said period.
[9] As it became apparent that the
Respondents intended to deduct from his salary an amount equal to 28
days’ remuneration
and that he may for that reason not receive
his salary for the period ending September 2011, he immediately
called his attorney
to dispatch a letter to the first Respondent
stating his position regarding the matter.
[10] In the said letter the Applicant
indicated that he has been on sick leave as contemplated in clause
3.2. of Part B of the South
African Local Government Bargaining
Council Main Collective Agreement, as amended(“the Main
Collective Agreement”).
In terms of the said clause, the
Applicant contended that he is entitled to 80 days sick leave in a
three year leave cycle. Further
that, it was confirmed in the letter
that he has indeed been on sick leave for the period from 20 July
2011 to and including 12
September 2011 and hence, a total of 28
days.
[11] The Applicant contended that
notwithstanding the fact that he submitted a complete medical
certificate for the period of his
absence, the Respondents have
refuse to pay him his entire remuneration for the month of September
2011, or alternatively the Respondents
have deducted from his
remuneration for the month of September 2011, an amount equal to his
gross monthly remuneration.
[12] On the 23 September 2011, the
Respondents replied to Applicant’s attorneys’ letter of
21 September2011 and indicated
that the Applicant must follow the
grievance procedure set out in the South African Local Government
Bargaining Council: Grievance
Procedure Collective Agreement.
[13] The essence of the contention of
the Respondents is that the court does not have jurisdiction to
entertain the dispute as the
dispute must be referred to the said
Bargaining Council for resolution. The Applicant however, is of the
view that the Respondent’s
conduct is unlawful and amounts to a
repudiation of his employment contract with the Respondent. The
Applicant’s contention
is therefore that his dispute is based
on the Respondent’s breach of his contract of employment, to
wit, his right to receive
his monthly remuneration and hence
contended that this court has jurisdiction to entertain the dispute.
[14] Clause 3.2.1 of Part B of the Main
Collective Agreement provides the following:
“The employer shall grant the
employee eighty 80 days sick leave in a three (3) year leave cycle”.
[15] Clause 3.2.2 of part B of the Main
Collective Agreement provides as follows:
“The employee shall be required
to submit a medical certificate from a registered medical
practitioner if more than two (2)
days consecutive days are taken of
sick leave as a sick leave”.
[16] The Applicant contended that he
has complied with the above and therefore entitled to receive his
full salary for the said
month.
[17] In the main the Respondents’
contention is that this court does not have jurisdiction to entertain
the dispute. The
Applicant was directed to the Local Government
Bargaining Council for resolution of the disputes.
Legal issues to be resolved
[18] In terms of
Section 77(1)
of the
BCEA, subject to the Constitution and the jurisdiction of the Labour
Appeal Court, and except where the BCEA provides otherwise,
the above
Honourable Court has exclusive jurisdiction in respect of all matters
in terms of this act, except in respect of an offence
specified in
Sections 43, 44, 46, 48, 90 and 92 of the BCEA.
[19] In terms of Section 77(3) of the
BCEA, the above Honourable Court has concurrent jurisdiction with the
civil courts to hear
and determine any matter concerning a contract
of employment, irrespective of whether any Basic Conditions of
Employment constitutes
a term of that contract.
[20] Section 4 of the BCEA provides for
the following:
A basic condition of employment
constitutes a term of any contract of employment except to the extent
that-
a) Any other law provides a term that
is more favourable to the employee;
b) The basic condition of employment
has been replaced, varied or excluded in accordance with the
provisions of this Act
c) A term of the contract is more
favourable than the basic condition of employment.
[21] Section 34 of the BCEA provides
for the following:
1. An employer may not make any
deduction from an employee’s remuneration unless-
a) Subject to subsection (2), the
employee agrees in writing to the deductions in respect of a debt
specified in the agreement;
or
b) The deduction is required or
permitted in terms of the 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 employee has followed a fair
procedure and has given the employee reasonable opportunity to show
cause 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 the employee’s remuneration in terms of subsection (1) for
the payment of another
person must pay 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.
[22] Section 23 (1) of the BCEA
provides the following:
An employer is not required to pay an
employee in terms of Section 22 if the employee has been absent from
work for more than two
consecutive days or more on more than two
occasions during an eight-week period and, on request by the
employer, does not produce
a medical certificate stating that the
employee was unable to work for the duration of the employee’s
absence on account
of sickness or injury.
[23] Clause 3.2.2 of Part B of the Main
Collective Agreement provides as follows:
The employee shall be required to
submit a medical certificate from a registered medical practitioner
if more than two (2) consecutive
days are taken of sick leave as sick
leave.
[24] Clause 3.2.2 of Part B of the Main
Collective Agreement provides as follows:
The employee shall be required to
submit a medical certificate from a registered medical practitioner
if more than two (2) consecutive
days are taken of sick leave as sick
leave.
[25] Clause 3.2.1 of Part B of the Main
Collective Agreement provides the following:
The employer shall grant the employee
eighty (80) days sick leave in a three (3) year leave cycle.
[26] Clause 3.1.7. of Part B of the
Main Collective Agreement provides the following:
In the event of the termination of
service, an employee shall be paid his leave entitlement calculated
in terms of the relevant
provisions of the Basic Conditions Of
Employment Ac 75 of 1997, provided that no employer shall be obliged
to encash more than
48 days annual leave upon the termination of the
employee’s contract of employment.
[27] Section 40 of the BCEA provides
the following:
On termination of employment, an
employer must pay an employee-
a) For any paid time off that the
employee is entitled to in terms of section 10 (3) or 16 (3) that the
employee has not taken;
b) Remuneration calculated in
accordance to with section 21 (1) that the employee has not taken.
Evaluation
[28] The issue before us is
characterised as follows:
“in casu, and notwithstanding the
fact that I submitted complete medical certificates for the period of
my absence, the Respondents
have refused to pay me my entire
remuneration for the month of September 2011. Alternatively, the
Respondents have deducted from
my remuneration for month of September
2011”.
[29] This claim arises out of refusal
by the Respondents to approve the Applicant’s application for
sick leave with pay but
instead approved his sick leave without pay.
In essence the Applicant was not paid for days he was absent and on
leave without
pay. In reality we do not have a deduction but rather
non-payment of sick leave.
[30] From the foregoing it is clear
that the issue of leave is regulated by Main Collective Agreement
read with Section 23 of BCEA.
What is clear is that there is a
dispute about the interpretation and application of the above code.
[31] The main collective agreement
provides that:
“1. Intent
1.1. The purpose of this procedure is
to establish a common and uniform procedure for the management of
grievance and to replace
all existing procedures and regulations.
1.2. This procedure is a product of
collective bargaining and the application thereof is peremptory.
1.3. The procedure shall be deemed to
be a condition of service.
1.4. ……………………………….”
[32] Further that, it provides that:
“4. Interpretation and
application.
In the event that there is a dispute as
to the application and interpretation of this code, such dispute
shall be dealt with in
terms of the dispute provisions of the
Constitution of South Africa Local Government Bargaining Council”.
[33] The procedure as outlined above
has become a term of contract/condition of service and hence the
contract of employment consist
amongst others this procedure. This
procedure appears to be the one that must be followed when there is a
dispute relating to
amongst others the issue of sick leave as
outlined above. The usage of the word peremptory with regard to its
application is instructive
in this regard.
[34] In casu the facts bear similarity
with the ones that existed in the case of Public Servants Association
of South Africa obo
De Bryn v Minister of Safety and Security and
another
[2012] 9 BLLR 888
(LAC) wherein the court said the following:
“The Applicant’s complaint
clearly concerns the denial of incapacity leave. The alleged right
the appellant seeks to
assert derives from the provisions of PSCBC
resolution as the Labour Court, correctly in our view, found. The
resolution deals
with leave of absence and what steps an employee
should take in case of a dispute arising regarding alternate matters.
There is
no doubt that the aspect of leave of absence is an issue
falling squarely under the PSCBC resolution. In deciding whether the
relief sought to be granted the court a quo had to have regard to the
provisions of resolution.
Therefore, the court a quo (although of
the opinion that the application before it was in terms of Section
158 (1) (a) of the LRA)
correctly proceeded to consider whether the
LRA required the kind of dispute which existed between the appellant
and Respondent
to be resolved through arbitration. The court
concluded that leave, including incapacity leave and temporary
incapacity leave
at the Respondent’s organisation, is governed
by the provisions of Resolution 5 of 2001 of the PSCB, which is
binding collective
bargaining agreement. This means that the dispute
between the parties was required to be submitted to arbitration as it
concerned
the application and/or interpretation of the provisions of
the PSCBC resolution”.
The LRA regulates and provides the
regime as well as the mechanism to deal with disputes of this nature.
Section 24 (1) and (2)
of the Act provides that:
“(1) Every collective agreement
excluding an agency shop agreement concluded in terms of Section 25
or a closed shop agreement
concluded in Section 26 or a settlement
agreement contemplated in either Section 142 A or 158 (1) (C) must
provide for a procedure
to resolve any dispute about the
interpretation or application of collective agreement. The procedure
must first require these
parties to attempt to resolve the dispute
through conciliation and, if the dispute remains unresolved, to
resolve it through arbitration.
(2) If there is a dispute about the
interpretation and application of a collective agreement any party to
the dispute may refer
the dispute in writing to the commission if-
a) the collective agreement does not
provide for a procedure as required by subsection (1);
b) the procedure provide for in the
collective agreement is not operative; or
c) Any part to the collective agreement
has frustrated the resolution of the dispute in terms of the
collective agreement”.
[35] In this matter the applicant’s
contract of employment incorporate the procedure of the Main
Collective Agreement which
points to the Local Government Bargaining
Council for resolution. It is binding on the Applicant.
[36] In the premise I make the
following order:
a) The Labour Court lacks the
jurisdiction to entertain the dispute.
b) The matter is dismissed with costs.
Shai AJ
Judge of the Labour Court of South
Africa
Appearances
For the Applicant: Mr. W Chisora
For the Respondent: Advocate O K
Chwaro
Instructed by: Melato Attorneys