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[2016] ZALCJHB 460
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POPCRU obo Tshaka v Minster of Correctional Services and Another (J1777/12) [2016] ZALCJHB 460 (25 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no.: J 1777/12
In the matter between
POPCRU obo AN TSHAKA
Applicant
And
MINISTER OF CORRECTIONAL
SERVICES
First Respondent
NATIONAL COMMISSIONNER OF THE
CORRECTINOAL SERVICES
Second Respondent
Heard:
19 November 2015
Delivered:
25 January 2016
[1] The
applicant seeks an order declaring a deduction of R 9181.03 from his
salary effected in June 2012 to be unlawful. He also
seeks to have
financial circular issued by the respondent (financial circular 5 of
2010/2011), in terms of which the deduction
was effected, declared
unlawful.
[2] The
material facts are not in dispute. The applicant is employed by the
second respondent. The terms of his employment (along
with many
others) were the subject of a report of a commission of enquiry (the
White Commission) into promotions within the department
during 1994.
The applicant’s appointment was found to be irregular and set
aside, a conclusion that he does not challenge.
[3] The
second respondent has sought, over many years, to recover the
remuneration paid to the applicant on account of his irregular
promotion. During 2004, the second respondent advised the applicant
that an amount of R 19 399.50 remained outstanding in respect
of
overpaid salary, and that arrangements should be made to settle the
debt. It would appear that the applicant agreed to a deduction
from
his remuneration of R200 per month. In May 2011, the second
respondent addressed a letter to the applicant and advised him
that
he should make written submissions in ‘reviewal’ of his
monthly instalment toward the liquidation of his debt,
and that a
failure to do so would result in a ‘unilateral decision’
being taken based on available information. The
letter states further
that ‘It also needs to be mentioned that the 70% principle will
also be implemented towards recovery
of debts with effect from June
2011.05.11’. Attached to the letter was the financial circular
that is in part the subject
of the present application.
[4] The
circular is entitled ‘Reviewal of monthly instalments towards
recovery of departmental debts’. It provides,
amongst other
things, that regional commissioners should ensure that monthly
instalments towards the recovery of outstanding departmental
debts
are reviewed and increased on an annual basis. Specifically, the
circular provides that 70% of service bonuses paid must
be used to
reduce the outstanding debts of relevant officials there is no
specific indication of the papers before me as to what
a service
bonus might comprise, but it would appear to be something akin to a
13
th
cheque.
[5] It is
not disputed that the applicant failed to respond to the invitation
to make submissions regarding a review of the monthly
deduction from
his remuneration, and that he did not respond to the terms of the
circular.
[6] The
applicant’s payslip dated 4 June 2012 indicates that an amount
of R 9181.03 was deducted from his remuneration. He
had been warned
of this eventuality in a letter addressed to him on 29 May 2012 when
the area commissioner advised him that the
amount concerned would be
deducted from his service bonus in June 2012 to reduce the level of
the applicant’s indebtedness
to the second respondent.
[7] The
applicant’s case is that the deduction was unlawful because it
infringed the provisions of s 34 of the Basic Conditions
of
Employment Act, 1997 (BCEA).
[8]
Section 34 reads as follows:
(1)
An employer may not make any deduction from an employee’s
remuneration unless-
(a)
subject to subsection (2), the employee in writing agrees to
the deduction in respect of
a date specified in the
agreement; or
(b)
the deduction is required or permitted in terms of a law, collective
agreement, court order arbitration award.
(2)
A deduction made 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 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.
[9] In
particular, the applicant submits that he did not agree in writing to
the deduction, that his liability for the debt had
not been
determined by a court or other tribunal, or in terms of any court
order or arbitration award and that the amount deducted
exceeded 25%
of the remuneration paid to him.
[10] The
second respondent contends that the deduction was lawful and relies
on the provisions of s 34(1) (b) of the BCEA, and more
particularly
on the provisions of s 38 of the Public Service Act, 1994 (PSA). That
provision deals with the wrongly granted remuneration
and provides as
follows:
(1)
(a) If an incorrect salary, salary level,
salary scale or reward is awarded to an employee, the relevant
executive authority shall
correct it with effect from the date on
which it commenced.
(b)
Paragraph (a) shall apply notwithstanding the fact that the employee
concerned was unaware that an error had been made in the
case with
the correction amounts to a reduction of his or her salary.
(2)
If an employee contemplated in subsection (1) has in respect of his
or her salary, including any
portion of any allowance or any other
remuneration or any other benefit calculated on his or her basic
salary or salary scale or
awarded to him or her by reason of his or
her basic salary –
(a)
been underpaid, an amount equal to the amount of the underpayment
shall be paid to him or her, and that other benefit
which he or she
did not receive, shall be awarded to him or her as from a current
date; or
(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 relevant accounting officer may determine if
he or she is in the service of the state, or,
if he or she is not so
in 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.
[11] The
respondents’ uncontested version is that the applicant’s
promotion to the rank of sergeant (also referred to
as “correctional
officer grade 2”) was found to be irregular and set aside, and
that he reverted to the lower rank
and salary of a warder, also known
as a “correctional officer grade 3”. It is also not
disputed that the deduction
of the contested sum from the applicant’s
salary during June 2012 was in part settlement of an overpayment that
was occasioned
by the applicant’s irregular promotion. As I
have indicated, the overpayment in salary has never been in dispute
between
the parties, nor the extent of the applicant’s
indebtedness to the second respondent.
[12] That
being so, in my view, the provisions of s 34 (2) of the BCEA do not
apply, since that subsection relates only to losses
or damages
suffered by an employer and an attempt by the employer to recover
those losses or damages that it has suffered consequent
on any act by
the employee. This is what distinguishes the present matter from the
factual circumstances that prevailed in
Police and Prisons Civil
Rights Union obo Moyo v Minister of Correctional Services &
another
(2013) 34 ILJ 992 (LC). In that matter, the court held
that the applicant had established a clear right not to have
deductions
made in respect of a loss consequent on damage allegedly
caused by the applicant to a vehicle owned by the respondent. The
present
application does not concern any loss or damage occasioned by
the applicant; it concerns no more than an overpayment of salary
consequent on an irregular appointment. The lawfulness of the
deduction thus falls to be determined by reference to s 34 (1)
(a).
[13] The
respondents concede that the applicant did not agree in writing to
the deduction. As I have indicated, they rely on the
contention that
the deduction was made pursuant to an overpayment of salary as
contemplated by s 38 of the PSA that permits the
deduction and was
thus permitted by law. I agree. Section 38 (2) (b) clearly
permits the recovery of any overpayment to an
employee in the service
of the state to be recovered by way of deduction in instalments, as
determined by the relevant accounting
officer. In the present
instance, the financial circular issued by the chief financial
officer provides in effect for a deduction
of up to 70% of any
service bonus to reduce outstanding debt. The deduction effected from
the applicant’s remuneration was
effected in accordance with
this provision. Further, the applicant was afforded an opportunity to
make submissions before the deduction
was made. He failed to do so.
In short, the deduction was permitted by law for the purposes of s
34(1) of the BCEA.
[14] To
the extent that the applicant relies on s 34 (2) of the BCEA to
submit that the deduction was unlawful because it exceeded
25% of his
remuneration for the month of June 2012, for the reasons stated
above, s 34 (2) has no application.
[15] To
the extent that the applicant seeks an order declaring the financial
circular to be unlawful, the applicant relies only
on s 34(2) (d),
i.e. the limit of 25% of the employee’s remuneration payable in
money on the total amount of any deduction,
in support of this
contention. The applicant has not made out a case to the effect that
the circular in its entirety offends s
34 (2) of the BCEA. As the
present case illustrates, not all deductions fall to be regulated by
s 34(2). Even where the subsection
does apply (as it did in
Moyo’s
case) it does not necessarily follow that in every instance, the 25%
ceiling will be exceeded. There is accordingly no basis for
the broad
declaratory order that the applicant seeks. The legitimacy of each
deduction must necessarily be determined on its own
merits.
[16]
Finally, in relation to costs, there is no reason why costs ought not
to follow the result.
I make
the following order:
1.
The application is dismissed, with costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For the
applicant: Mr. J. Nysschens of Grosskopt Attorneys
For the
third respondent Adv. R. Ramaloele, instructed by The State Attorney
Pretoria