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[2015] ZALCCT 32
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Steenkamp v Sanlam Limited (C244/14) [2015] ZALCCT 32 (22 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
C244/14
In
the matter between:
SHARON
STEENKAMP
...........................................................................................................
Applicant
and
SANLAM
LIMITED
...............................................................................................................
Respondent
Date
heard: 29 January 2015
Delivered:
22 April 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
The applicant seeks orders in the following terms:
“
That
it be declared that the term standby work as envisaged by Annexure
“F3” to the founding affidavit, is synonymous
with
the term “overtime work” as defined by the
Basic
Conditions of Employment Act 75 of 1997
.
That
it be declared that the applicant is not obliged to attend to any
standby and/or overtime work in excess of 10 hours per week
words
long as her remuneration is less than the amount prescribed by the
relevant regulations in respect of
sections 10
and
17
of the
Basic
Conditions of Employment Act 75 of 1997
, from time to time.
That
it be declared that the applicant is not obliged to attend to any
standby and/or overtime work between the hours of 18.00 and
06.00
(the following day) for as long as her remuneration is less than the
amount prescribed by the relevant regulations in respect
of
sections
10
and
17
of the
Basic Conditions of Employment Act of 1997
, from
time to time.
That
it be declared that the employment contract concluded between the
applicant and the respondent, a copy of which is annexed
to the
founding affidavit as annexure " F1" and "F2"
(hearing after quote the employment contract") is
not to be
construed as obliging the applicant to attend to any standby and walk
overtime work in excess of 10 hours per week and/or
to attend to any
work between the hours of 18:00 and 06:00 the following day.
That
it be declared that the respondents instruction to the applicant to
attend to standby and/or overtime work during the period
19 March
2014 to 26 March 2014 constitutes a contravention of the
Basic
Conditions of Employment Act 75 of 1997
.
That
the respondent be ordered to pay the applicant the amount of
R28,177.50 in respect of the aforesaid period of overtime/standby
work.
That
in the alternative ……, the respondent be ordered to
remunerate the applicant for the aforesaid period by payment
equal to
one and a half times the pro rata salary for 130 hours.”
[2]
Annexure “F3” is a letter to information service help
desk consultants, of whom applicant is one, informing them
that from
1 September 2012 the respondent will be implementing compulsory
“stand by work (overtime work) as stipulated
in the contract of
employment”. The stand-by work consists of being on call from
16.30 to 07.00 for a week at a time, on
a rotational basis once in a
two month period, for which employees are paid for 13 hours. The
respondent avers that the applicant
and other call desk consultants
are never called upon to work more than 10 hours overtime during
their standby periods and the
work is limited to dealing with calls
when emergencies arise outside working hours. They further deny that
the standby arrangements
constitute overtime in terms of the BCEA.
[3]
The application was initially brought on an urgent basis and sought
interim relief pending the determination of the declaratory
relief,
i.e. that the respondent be interdicted from instructing the
applicant from attending to standby work. For whatever reason,
the
matter was not set down on an urgent basis. The applicant claims in
her founding affidavit that the application is brought
in terms of
section 158(1)(a)(i)
to (iv) of the LRA i.e. the following
provisions:
“
158
Powers of Labour Court
(1)
The Labour Court may-
(a)
make any appropriate order, including-
(i)
the grant of urgent interim relief;
(ii)
an interdict;
(iii)
an order directing the performance of any particular act which order,
when implemented, will remedy a wrong and give effect
to the primary
objects of this Act;
(iv)
a declaratory order;..”
[4]
No reliance is placed in the pleadings on any particular section of
the BCEA which would vest this court with jurisdiction to
determine
the application. In other words no attempt was made by the applicant
to enquire into what matters this court has jurisdiction
to make
declaratory orders about. Despite this omission I will entertain the
matter on the basis as set out in the matter of
Fourie
v Stanford Driving School & 34 Related Cases
[1]
in which my brother Van Niekerk J stated as follows:
“
[7]
That issue aside for the moment, the question that arises in each of
the applications before me is whether the BCEA entitles
an aggrieved
party to enforce the provisions of the Act as contractual terms, and
to rely on the concurrent jurisdiction that this
court enjoys under
s
77
of the BCEA to enforce them. The starting-point is
s 4
of the Act
which provides, with some exceptions, that a basic condition of
employment constitutes a term of any contract of employment.
A 'basic
condition of employment' is defined in
s 1
to mean 'a provision of
this Act or sectoral determination that stipulates a minimum term or
condition of employment'. In Bartmann
& another t/a Khaya
Ibhubesi v De Lange & another (2009) 30 ILJ 2701 (LC), Todd AJ
expressed his reservations about whether
it could be said that an
obligation under the BCEA to furnish certificates, information
regarding remuneration and the like could
be said to constitute basic
conditions of employment (at para 38 of the judgment). For the
purposes of these proceedings,
I am prepared to accept that they are,
and that they may be enforced as contractual terms. I deal with this
issue below; in the
context of the prayer for costs on a punitive
scale that accompanies virtually every application before me.
[8]
Insofar as the question of jurisdiction to entertain contractual
claims that arise out of a basic condition of employment is
concerned,
s 77
of the BCEA reads as follows:
'(1)
Subject to the Constitution and the jurisdiction of the Labour Appeal
Court, and except where this Act provides otherwise,
the Labour 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.
(2)
The Labour Court may review the performance or purported performance
of any function provided for in this Act or any act or
omission
of any person in terms of this Act on any grounds that are
permissible in law.
(3)
The Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of
employment,
irrespective of whether any basic condition of employment constitutes
a term of that contract. A
(4)
Subsection (1) does not prevent any person relying upon a provision
of this Act to establish that a basic condition of employment
constitutes a term of a contract of employment in any proceedings in
a civil court or an arbitration held in terms of an agreement.
(5)
If proceedings concerning any matter contemplated in terms of
subsection (1) are instituted in a court that does not have
jurisdiction
in respect of that matter, that court may at any stage
during proceedings refer that matter to the Labour Court.'
[9]
Also relevant is s 77A(e), which empowers this court to make any
appropriate order, including an order 'making a determination
that
it considers reasonable on any matter concerning a contract of
employment in terms of section 77(3), which determination
may include
an order for specific performance, an award of damages or an award of
compensation'.
[10]
In general terms, it is clear therefore that the BCEA establishes
dual enforcement mechanisms - an employee can elect to refer
a
complaint to the labour inspectorate, or seek to enforce a basic
condition of employment in a civil court or in this court as
a term
of the employment contract. This general rule is subject to the
limitations imposed by s 70 of the BCEA on the issuing of
compliance
orders by labour inspectors, some of which would preclude an
aggrieved employee from seeking to enforce a basic condition
of
employment through the monitoring and enforcement mechanisms
established by part A of chapter 10 of the Act. Thus, an employee
who
is employed in any one of the categories listed in s 6(1) (for
example, a senior managerial employee) may not seek a compliance
order, nor may any person whose monetary claim has been payable for
longer than 12 months (see s 70(d)). In these circumstances,
the
employee only has the remedy of a contractual claim. Section 74 of
the Act contemplates the consolidation of proceedings where
an
employee institutes proceedings related to an unfair dismissal in
this court, the CCMA or a bargaining council with jurisdiction.
In
this event, this court or the arbitrator, as the case may be, may
also determine any claim for an amount owing in terms of the
BCEA,
subject to the conditions set out in s 74(2)(a) to (c).”
[5]
The contract of employment relied on by the applicant comprises of
two documents. The first is the contract she signed in 2009
in which
she agreed to work official office hours from 08.30 to 16.45 (the
main contract), and the second which she seeks to be
read together
with the main contract, is a letter dated 8 November 2010 in which
the company confirms the change to her working
hours from 7.5 hours
per day to 4 hours per day, granted on her request, with the proviso
that should future operational needs
of the department increase it
will be requested of her to return to full day work. The letter
states that since her job grade does
not change, the rest of her
conditions of service remain unchanged. These conditions of service
in the main contract ( Clause 13
thereof) include that:
“
The
company reserves the right to expect you to work overtime as
circumstances may demand. Your signing of this letter of appointment
will indicate your agreement to this condition. Please note that
overtime will be paid in accordance with the company's policy,
as
well as the
Basic Conditions of Employment Act.”
[6
]
The founding affidavit reveals that each and every time the applicant
took up the issue of the standby duties with her employer,
the
respondent replied by relying on the contract of employment and in
particular clause 13 thereof, and stated that the standby
duty was
overtime consistent with both the contract of employment and the
BCEA. In the answering affidavit however, the company's
case is that
being on standby for seven days every two months does not constitute
work and is not therefore overtime; rather if
the applicant is called
upon to actually work whilst on standby that such work is overtime.
[7]
The respondent also avers in its answering affidavit that it pays for
the maximum amount of overtime an employee is required
to work in
terms of the BCEA , irrespective as to whether any of its staff on
standby ever actually work any overtime or a limited
duration of
time. On that basis it contends that the respondent’s
conditions of employment and remuneration are far better
than that
prescribed by the BCEA. The respondent points out in addition, that
an employee on standby is only ever called upon in
emergency
situations; this is infrequent and if required of an extremely
limited nature. Secondly the actual nature any work required
to be
done, if called upon whilst on standby, is extremely limited both in
nature and duration. It usually would only require of
the applicant
to simply escalate any internal IT problem to the so-called "incident
manager" if it was a significant
IT problem or, if not, assist
staff with minor internal problems such as resetting passwords when
staff members are not able to
gain access to the network. A copy of
the schedule report prepared by the applicant for her March 19-25
2014 standby duties supports
this proposition. It reflects that she
worked approximately two and one quarter hours in total over the
entire seven day period
in question.
[8]
In as far as the allegations that the standby duties involve ‘night
work’ as provided for in the BCEA, it is averred
by the
respondent that
section 17
of that statute does not apply in that it
is applicable to persons whose work is regularly and consistently
performed between 18h00
on one day and 06h00 on the second day.
Further, the provisions regarding night work contemplated that an
employee renders actual
work services at the employer's premises on a
regular basis during the night shift hours.
[9]
The respondent further submits that to the extent that it can be said
that spending 15 minutes attending to an enquiry from
home on the
cellphone and whilst on standby is night work, then the applicant in
any event clearly agreed to work night work and
such additional time
in terms of her employment contract. It avers that it was clearly an
implied term and condition of applicant’s
employment agreement
that the overtime could reasonably be expected to be worked after
normal hours and after 18h00. The applicant
hads actually performed
such limited work on one occasion only i.e. on19 March at 18h10.
[10]
In reply, the applicant avers that being on standby constitutes
overtime work and/or night work
per se
. The important issue as
far as she is concerned is whether she is legally obliged to do
standby or not. She challenges the respondent’s
approach i.e.
that it can state on the one hand that the overtime work is only
measured against the “actual work done”,
but on the
other hand say that they nevertheless pay their employees for work
not done (i.e. purely for being on standby).
[11]
Essentially this court has consider whether the claim made for
R28,177.50 in respect of standby duties performed in March 2014
is
due to the applicant in terms of her employment contract and the
BCEA. In order to determine this, and before deciding whether
the
declaratory orders are called for, it is necessary to look at the
particular facts and circumstances of the applicant's employment.
[12]
It is common cause that on her own request applicant works half a day
and on her version this has meant that her package has
been reduced
from an amount of R237 375-00 to R127 086-00. On her previous salary,
which applies to her co-workers who also do
standby duty,
sections 10
and
17
of the BCEA would not apply as their salary exceeds the
threshold of application of these sections. However, the
employment
agreement between the parties, is that despite the
reduction in her working hours, agreed to by the company on her
request,
the rest of her conditions of service remain unchanged
including her job grade.
[13]
The applicant describes her grateful acceptance of the half a day
arrangement and avers: "My terms of employment remained
unchanged, save for the fact that my hours changed from 8:00 –
16:30 (8.5 hours with an hour lunch= 7.5 hours paid time)
to 8.30 –
12.30 (4 hours with no lunch or tea). I was also to be paid less pro
rata."
[14]
If regard is had to the main employment contract, and that the
applicant’s conditions of service remain unchanged including
her job grade, it is evident that she enjoys the many benefits and
conditions of service associated with being permanently and
full-time
employed on her job grade. These include car benefit, performance
bonus and membership of a particular medical aid which
is “compulsory
for all permanent full-time Sanlam employees who are not already
dependent members of a registered medical
aid”. Further, it is
specifically stated in the letter dated 8 November 2010 regarding the
change in her working hours that:
"please note that the change
in your working hours has been granted in accordance to the current
operational needs of the
Department, however should future
operational needs of the Department increase it will be requested of
you to return to full day."
[15]
The agreement by the company to reduce the working hours of the
applicant while keeping her other conditions of service unchanged,
including her job grade and attendant benefits, together with an
agreement that should operational needs change her working hours
will
return to be full-time, does not sit easily with the applicants
reliance on the proposition that because her remuneration
working
half a day is below the threshold envisaged by the BCEA, making
section 10
and
17
of that statute applicable, that she should enjoy
the protection of those sections that normally apply to persons
earning below
the remuneration package of that attached to her job
grade. The question is can she be considered as an employee to whom
those
sections apply.
[16]
The agreement to allow the applicant to work a half day in the
circumstances described above, is explicitly granted at the
discretion of the employer and it further explicitly records that it
is subject to the operational requirements of the employer,
who if
necessary will request her to return to full day. In my view the
applicant is
de jure
employed (in terms of the two contracts
she relies on) at a job grade and with a remuneration package above
the threshold provided
for in
section 10
and
17
of the BCEA. The fact
that she takes home remuneration below that threshold has come about
at her own instance.
[17]
The applicant cannot expect to retain the package associated with her
job grade and at the same time demand to be treated differently
from
her co- employees doing the same job i.e. to have her proverbial cake
and eat it. She makes no averments to the effect that
any of the
benefits provided for in terms of her conditions of service at that
job grade, have been withdrawn pursuant to her request
to work fewer
hours.
[18]
In view of the above, the application and the declaratory orders
sought must fail. Despite the tenor of the answering affidavit
which
evinced a high degree of irritation about the bringing of this
application, the respondent did not pursue that costs be paid
by the
applicant in this matter, even in the event that she be unsuccessful.
In the circumstances, I make the following order:
Order:
1.
The application is dismissed.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant: Grant
Marinus Attorneys
Respondent: Adv. S.
Walter instructed by Carl Swanepoel Attorneys
[1]
(2011) 32 ILJ 914 (LC)