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[2018] ZALCJHB 123
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Teffo v Small Enterprise Development Agency (J877/18) [2018] ZALCJHB 123 (22 March 2018)
Not
Reportable
Case
No: J 877/18
In
the matter between:
TLALANE
ELIZABETH
TEFFO
Applicant
and
SMALL
ENTERPRISE DEVELOPMENT AGENCY
Respondent
Heard:
19 March 2018
Delivered:
22 March 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The
applicant, Ms Tlalane Teffo approached this Court on urgent basis in
terms of the provisions of section 158(1)(a)(iii) read
with
subparagraph (iv) and subsection (b) of the Labour Relations Act
(LRA)
[1]
,
for a declaration that the purported withholding of her remuneration
was in conflict with the provisions of section 34(1) read
with
subsection (2) of the Basic Conditions of Employment Act (BCEA)
[2]
,
and accordingly constituted unlawful conduct.
[2]
The respondent (the Agency) opposed the application on various
grounds and in the main, it was contended that the application
was
not urgent and/or that the urgency claimed is self-created. The
Agency further avers that the applicant’s application
constitutes an abuse of process.
Background:
[3]
The
applicant is employed by the Agency in the position of Sector
Manager: Tourism, Trading and Auxiliary Services. The Agency is
a
state institution established in terms of the provisions of the
National Small Business Act
[3]
and its main mandate is to provide non-financial business support,
promote and develop small enterprises within the Republic.
[4]
On 6 November 2017, the applicant
received correspondence from her line manager Ms Kwati Koka (Koka)
recording that she
had had been absent from her place of employment
for a period of at least 87 days from 1 March 2017 to
31 October 2017.
The applicant was said to have exhausted
all permissible leave of absence, including sick leave. The 87 days
of extra leave taken
were accordingly considered to be unauthorised
leave of absence by the Agency.
[5]
In the correspondence, Koka further
lamented the applicant’s pattern of absenteeism due to either
taking sick leave or other
leave without express permission from him
as Line Manager and/or the Executive Manager: EDD, and further her
failure to submit
reasons for her absence. Koka further pointed out
that she was reprimanded about her absenteeism and had in the past
given assurances
that she would show improvements in her attendance.
She was further advised that in terms of clause 5.2.7 of the Agency’s
Leave Policy, there was an obligation to regard any sick leave as
unpaid leave in the event that it was found that the sick and
annual
leave cycles had been exhausted. To that end, her cumulative 66 days
of absence without permission would in terms of the
Policy, be
converted into unpaid leave, and the Agency would effect the
deduction of the unpaid leave from her salary.
[6]
In the answering affidavit, the Agency
averred that the applicant was thereafter invited to a meeting with
the view of resolving
the situation. She had however failed to avail
herself for that meeting. There is a dispute on whether the applicant
reported for
duty between 1 December 2017 and until the
hearing of this matter, and whether the conduct complained of
pertained to
a deduction or withholding of the applicant’s
salary.
[7]
It is not in dispute however that the
applicant did not receive her remuneration from 19 November 2017.
On 19 December 2017
she addressed a grievance letter to the
Chief Executive Officer (CEO) of the Agency, complaining about the
non-payment of her salary
and service bonus for the 2016/2017
financial year.
[8]
During December 2017, the CEO
requested further information from the applicant, and in her response
on 4 January 2018,
she undertook to make the information
available on 8 January 2018. At a meeting held on
22 January 2018 attended
by the applicant, the CEO and the
Agency’s Employment Relations Consultant, it was resolved that
the applicant would be offered
an advanced remuneration. After that
meeting, the applicant according to the Agency failed to report for
duty. Despite her absence,
she was nonetheless paid an amount of
R29 923.47 by the Agency on 8 March 2018. She has not
been paid her salary
to date and had failed to report for duty.
The
applicant’s submissions:
[9]
The applicant’s contention in her
founding affidavit that she was not paid on 19 October 2017
proved to be incorrect,
as she conceded in her replying affidavit
that she was indeed paid for that month. She confirmed that Koka’s
correspondence
of 6 November 2017 followed upon a series of
email correspondence between herself and relevant managers regarding
her
alleged absenteeism. She attributed her failure to attend work
due to the reason that she had not been paid her salary since
November 2017.
[10]
She contended that the conduct of the
Agency of withholding her remuneration was unlawful and contravened
the provisions of section
34(1) and (2) of the BCEA, in that an
employer was not entitled to deduct any amount from an employee’s
remuneration without
having followed a fair procedure, and further
that the deductions could not exceed one-quarter of the employee’s
remuneration.
She further contended that there was no justification
for the Agency to withhold her salary as she had reported for duty,
and that
the Agency’s conduct violated the provisions of the
BCEA and her constitutional right to be treated fairly and with
dignity.
She further averred that she had a clear right to the relief
sought as she had not agreed to any deductions and/or withholding of
her salary.
Urgency:
[11]
As already indicated, the Agency’s main contention in opposing
the application was that the matter was not urgent, and
that any
urgency claimed was in fact self-created. It further contended that
the application was an abuse of court processes. In
this regard, it
was submitted that;
11.1.
On the applicant’s own version, the dispute arose in
October 2017. A period
of about five and a half months had since
elapsed before the applicant could approach the court. This factor on
its own was indicative
of any urgency claimed being self-created.
11.2.
The applicant first wrote to the Agency on 5 March 2018
through her previous
attorneys of record seeking restoration of her
remuneration. She sent further correspondence on 14 March 2018
and indicated
her intentions to approach the bargaining council if
the dispute was not resolved.
11.3.
Moreover, on 14 March 2018, the applicant’s attorneys
of record requested
that the grievance hearing scheduled for
15 March 2018 be postponed to 20 March 2018 to
enable the applicant
to secure union representation. On the same
date, the Agency was served with this application. This was further
indicative that
she had alternative remedies available to her.
11.4.
If the dispute was urgent as the applicant contends, she would not
have postponed a grievance
meeting scheduled for 15 March 2018.
The purpose of the grievance meeting was to ventilate the same issues
which were
before the Court.
11.5.
Moreover, the Agency contends that the provisions of section 34 of
the BCEA were not applicable
to the current dispute as it had not
made any deductions to the applicant’s remuneration. It was
contended that rather it
stopped paying her remuneration because of
her failure to report for duty. The Agency further avers that there
was no obligation
on it to pay the applicant’s remuneration in
an event where she failed to tender her services.
[12]
In contending that this matter was urgent, the applicant averred
that:
12.1.
The Agency withheld her remuneration unlawfully without following any
legal process. On
14 March 2018, the applicant through her
attorneys of record wrote to the CEO demanding that the Agency must
desist from
its unlawful conduct. The CEO however did not respond to
those demands. In the result, the applicant was compelled to approach
the Court.
12.2.
Because of the non-payment of the remuneration, she has been unable
to meet her financial
commitments, including her accommodation and
school fees for her children. She contended that she even had
difficulties in transporting
herself to work. In this regard, she
attached threatening correspondence and final demands from the school
and her landlord, as
she could not meet her financial obligations.
Evaluation:
[13]
The starting point, and to the extent that the Agency vehemently
opposed the application on the basis that it was not urgent
is to
revisit the principles applicable in this regard.
[14]
It is trite that an applicant
seeking urgent relief as contemplated in Rule 8 of the Rules of this
Court
[4]
must adequately and in detail, set out in the founding affidavit, the
reasons for the urgency, the circumstances which render the
matter
urgent, and the reasons why substantial redress cannot be obtained at
a hearing in due cause
[5]
.
In determining urgency, a court will be guided by considerations of
whether the reasons that make the matter urgent have been
set out
succinctly in the papers and secondly, whether the applicant seeking
relief will not obtain a substantial relief at a later
stage. Thus,
the basis for allowing parties to dispense with the Rules of Court
relating to time periods is to prevent the occasioning
of an
injustice and involves the balancing of this consideration with that
of the rights of parties to a considered opportunity
to place their
cases before the court
[6]
.
It therefore follows that where the court is not satisfied that
sufficient reasons have been given for the matter to be treated
as
one of urgency, the application ought to be struck off from the roll
on that ground alone
[7]
.
[15]
Equally important as emphasised
over time is that urgency must not have been self-created by an
applicant, that in the same way
that it is sought that the matter
should be dealt with promptly, an applicant must have acted in a
similar fashion
[8]
.
[16]
Having had regard to the
applicant’s grounds for seeking the urgent intervention of this
Court, it is apparent that these
in a nutshell amounts to financial
hardship because of the alleged unlawful conduct on the part of the
Agency. The question whether
financial hardship can establish the
basis for urgent intervention has received attention from this Court
over time, with other
decisions subscribing to the view that as a
rule, financial hardship and loss of income are not considered to be
grounds for urgent
relief
[9]
.
[17]
The Court in
Democratic
Nursing Organisation of South Africa
[10]
,
however appreciated that there may be circumstances where financial
hardship may be a factor in considering whether to grant urgent
relief. In
Garry Harley v
Bacarac Trading 39 (Pty) Limited
[11]
,
the Court rejected the approach that financial hardship and loss of
income can never constitute grounds for urgency, and held
that;
“
The
principle established in these cases is one that inclines this court
to avoid granting what amounts to status quo relief in
unfair
dismissal disputes pending a final determination of the dispute by
the appropriate dispute resolution body. None of these
cases, it
seems to me, establishes that financial hardship and loss of income
can never be grounds for urgency. If an applicant
is able to
demonstrate detrimental
consequences that may not be capable of being addressed in due course
and if an applicant is able to demonstrate
that he or she will suffer
undue hardship if the court were to refuse to come to his or her
assistance on an urgent basis, I fail
to appreciate why this court
should not be entitled to exercise a discretion and grant urgent
relief in appropriate circumstances.
Each case must of course be
assessed on its own merits”
[18]
The issue in this case is whether the applicant has placed
exceptional circumstances before this Court, which would not be
capable of being fully addressed in the normal cause. Even if
exceptional circumstances are demonstrated, a further issue is
whether
the requirements of urgency as called upon by the provisions
of Rule 8 of the Rules of this Court have been met.
[19]
It is accepted that the natural consequences of a loss of
remuneration will lead to financial hardship. At the same time
however,
it is equally appreciated that based on ordinary principles
of an employment contract, remuneration is only due where service has
been rendered. For exceptional circumstances to be shown in this
regard, it would
inter alia
be required of the applicant to
demonstrate that she had indeed rendered her services for her
remuneration to be due. Sadly, she
had on her papers, failed to
demonstrate this factor. My reasoning in this regard are fortified by
the following factors;
[20]
On her own version, Koka’s correspondence of 6 November 2017
came about after several previous e-mails between
herself and
management regarding her alleged absence from work. This can only
imply that she was warned of the consequences of
her failure to
report for duty and her failure to obtain the necessary permission in
that regard.
[21]
In her papers, she does not appear to dispute that she had indeed
exhausted her leave and sick leave days. Even if it could
be argued
that she had disputed this fact, there is nothing in her papers that
indicate that she had in fact reported for duty
from 1 December 2017
to date. At best, it is not disputed that she was at work on
22 January 2018 to attend
a meeting with the CEO, and on
28 February 2018 when she attended a work-related meeting.
Other than these two occasions,
her contentions that she had reported
for duty were confusing to say the least. On the one hand, and on her
own version, she had
conceded that she had failed to report for duty
and attributed that failure to a lack of funds to travel to work. In
the same token,
it was submitted on her behalf,
albeit
from
the bar, that she had in fact worked from home. The details regarding
the latter contention were nonetheless not forthcoming.
[22]
I further accept that since the applicant had exhausted her annual
and sick leave days, and further based on the Agency’s
own
Policy, there was justification to withhold the applicant’s
salary, as that was an election that it could make rather
than
subjecting the applicant to a disciplinary process. To that end, the
withholding of her salary for her failure to report for
duty cannot
amount to a breach of the provisions of section 34 of the BCEA. There
were no deductions made to her salary. There
was mere a withholding
of that salary as a consequence of the applicant’s unexplained
absence from work.
[23]
In my view, the detrimental consequences of the withholding of the
applicant’s remuneration for the period in question
flow
directly from her own conduct and are capable of being addressed in
due course.
[24]
Even if I may be incorrect in my conclusions reached above, the issue
remains whether the applicant has made out a case for
urgent relief,
in the light of the basic principle that she ought to have acted with
the necessary haste in approaching the Court.
Aligned to that factor
is that it is trite that urgent relief cannot be granted in
circumstances where the urgency claimed is self-created,
or where an
applicant has alternative relief.
[25]
The applicant approached this court with this application on
19 March 2018. On her own version, the issues surrounding
non-payments of her salary dates to 6 November 2017, when
she was formally advised of the steps the Agency intended to
take in
the light of her unauthorised absenteeism and the fact that she had
exhausted her normal leave and sick leave days. To
be precise, she
was warned in September 2017 that her salary and bonus might be
withheld. It took the applicant at least four
months prior to
approaching the Court, which is indeed an inordinate delay, which in
turn diminishes any urgency.
[26]
The applicant despite claiming that the matter is urgent has
nonetheless failed to adequately and in detail, set out in the
founding affidavit, the reasons for the urgency, the circumstances
which render the matter urgent, and the reasons why substantial
redress cannot be obtained at a hearing in due cause. Other than
addressing a grievance to the CEO on 19 December 2017
(at
which point she had not reported for duty), upon the latter’s
response on 21 December 2017, she had only followed
up on
the matter on 4 January 2018, and even then, had not
provided the CEO with the information requested.
[27]
Despite the alleged urgency of the matter, and the Agency having
re-opened after the festive season shutdown between 22 December 2017
and 4 January 2018, the applicant only went to work on
22 January 2018 for a meeting with the CEO, and there
is no
indication as to what it was that she had done since 4 January 2018.
On her own version and emanating from the
meeting with the CEO on
22 January 2018 where an undertaking was made that her January
salary would be attended to, she did
nothing until 8 March 2018
when she was ultimately granted a salary advance but had still failed
to report for duty.
[28]
A further factor raised by the Agency is that subsequent to the
payment of the salary advance, the applicant secured the services
of
her first set of attorneys (Leistener Attorneys), who had sent
correspondence to it on 5 and 14 March 2018.
In
the first correspondence, a threat was made to refer a dispute to a
bargaining council if the issue of the salary was not resolved.
In
the second letter, a request was made to postpone the grievance
hearing scheduled for 15 March 2018. The invariable
inferences to be drawn from such correspondence is that first, it was
appreciated that the applicant had an alternative remedy
to address
her concerns, and second, she had, despite claiming urgency, rebuffed
any attempts at finding a speedy internal resolution
of the matter.
The reasons for seeking a postponement of the grievance hearing were
flimsy in the extreme, and had she been at
work, she would have
easily secured Union representation and sourced the documents she
needed to prepare for that hearing.
[29]
It further follows that when the applicant’s current attorneys
of record served this application on the Agency on 15 March 2018
setting the matter down for 19 March 2018, and when the
grievance hearing had been postponed to 20 March 2018
at
her request, this was a clear case of an abuse of court processes,
which cannot be countenanced.
[30]
In conclusion, counsel for the
Agency had submitted that there was no basis for the Court to
intervene in the light of the applicant’s
failure to comply
with the provisions of Clause 12.3 of the Practice Manual of this
Court
[12]
,
particularly since no explanation was proffered for setting down the
matter on Monday at 14h00. I agree with this submission.
Parties
approaching this Court on an urgent basis are not at liberty to set
down matters at their own convenience, and the Court
ought to take a
dim view of non-compliance with applicable provisions of the Practice
Manual. These provisions are there for the
convenience of the Court
and all parties concerned.
[31]
Other than the above and having had regard to the papers before the
Court, I am not satisfied that the applicant has made out
a case for
the urgent intervention of this Court. She has not set out the
reasons for the urgency, the circumstances which render
the matter
urgent, and the reasons why substantial redress cannot be obtained at
a hearing in due cause. On the contrary, the urgency
claimed in this
case is clearly self-created, and worst still, there is no basis for
any conclusion to be reached that the applicant
has no alternative
remedies, or that she cannot obtain substantial redress in due cause.
Further to the extent that the pleadings
raised factual disputes in
regard to whether the applicant had reported for duty or not since
1 December 2017, or whether
there was a deduction or
withholding of her salary, these are factors which she ought to have
considered prior to persisting with
this matter. In the light of
these conclusions, it follows that the application ought to be struck
off the roll.
[32]
I have further had regard to the requirements of law and fairness
insofar as the issue of costs is concerned. This application
given
the background of the matter was clearly ill-conceived. I appreciate
that the applicant finds herself in financial difficulties,
even
though these have been found not to constitute grounds for urgency.
Having taken these and other factors into account, it
is my view that
fairness dictates that no award of costs should be made. Accordingly,
the following order is made;
Order:
1.
The applicant’s urgent application is struck-off the roll
for
lack of urgency.
2.
There is no order as to costs
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Mr M.P. Khumalo of Ntshebe Incorporated
For
the Respondent:
Adv. X.D. Matyolo
Instructed
by:
Werksmans Attorneys
[1]
Act 66 of 1995, as amended
[2]
Act 75 of 1997, as amended
[3]
Act 102 of 1996, as amended
[4]
See
Jiba
v Minister: Department of Justice and Constitutional Development and
Other
6 (2010) 31 ILJ 112 (LC) at para 18, where it was held that;
‘
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and why urgent relief
is
necessary. It is trite law that there are degrees of urgency, and
the degree to which the ordinarily applicable rules should
be
relaxed is dependent on the degree of urgency. It is equally trite
that an applicant is not entitled to rely on urgency that
is
self-created when seeking a deviation from the rules.’
[5]
East Rock Trading 7 (Pty)
Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others
8
[2012] JOL 28244
(GSJ) at para 6, where it was held that;
‘…
. An applicant has to
set forth explicitly the circumstances which he avers render the
matter urgent. More importantly, the applicant
must state the
reasons why he claims that he cannot be afforded substantial redress
at a hearing in due course. The question
of whether a matter is
sufficiently urgent to be enrolled and heard as an urgent
application is underpinned by the issue of absence
of substantial
redress in an application in due course. The rules allow the court
to come to the assistance of a litigant because
if the latter were
to wait for the normal course laid down by the rules it will not
obtain substantial redress.’
[6]
See
National Police
Services Union v National Commissioner of the National Police
Services and Others
(1999)
20 ILJ 2408 (LC);
Commissioner
for the South African Revenue Services v Hawker Air Services (Pty)
Ltd and Another
Case no:
379/2005 at para 9 and
Vermaak
v Taung Local Municipality
(JR315/13)
[2013] ZALCJHB 43 (12 March 2013)
[7]
See
Commissioner for the
South African Revenue
Services v Hawker Air Services (Pty) Ltd and Another
(
supra
)
where it was held that:
“
Urgency is a reason that may
justify deviation from the times and forms the rules prescribe. It
relates to form, not substance,
and is not a prerequisite to a claim
for substantive relief. Where an application is brought on the basis
of urgency, the rules
of court permit a court (or a judge in
chambers) to dispense with the forms and service usually required,
and to dispose of it
‘as to it seems meet’ (Rule 6(12)
(a)). This in effect permits an urgent applicant, subject to the
court’s
control, to forge its own rules (See
Republikeinses
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972(1) SA 773 (A) 782A-783H) which must ‘as far as
practicable be in accordance with’ the rules). Where the
application
lacks the requisite element or degree of urgency, the
court can for that reason decline to exercise its powers under Rule
6(12)
(a). The matter is then not properly on the court’s
roll, and it declines to hear it. The appropriate order is generally
to strike the application from the roll. This enables the applicant
to set the matter down again, on proper notice and compliance”.
[8]
See
Valerie Collins t/a
Waterkloof Farm v Bernickow NO and Another
(C1173/01)
[2001] ZALC 223
(7 December 2001), where it was held
that;
“
[8]
Furthermore, if the applicant seeks this Court to come to its
assistance
it must come to the Court at the very first opportunity
it cannot stand back and do nothing and some days later seek the
Court's
assistance as a matter of urgency.
[9]
It is clear from the above that the Courts do not easily grant
urgent relief. This caution is justified given the exceptional and
drastic nature of such relief. The Labour Court Rules set out
the
proper procedure through which applications to the Court should be
pursued and these rules exist to ensure that due process
is allowed
to run its course. They have not been arrived at arbitrarily but
after careful consideration as developed over years
of practice.
Thus, deviation from the usual rules should not be taken lightly, it
is only in exceptional circumstances that the
Court will deal with
applications on an urgent basis. In order to succeed in an urgent
application, the applicant must satisfy
the Court that on balance
the interests of justice outweighs the right of the parties to have
a considered opportunity to place
their case before this Court.
Although the Courts recognise that financial consideration may be
taken into account, the onus
is on the applicant to show the
prejudicial effect that will give rise to the injustice and plus the
urgency of the situation.
In particular, the applicant must show
that he has launched the application at the first available
opportunity; that special
circumstances exist justifying the
granting of the order; and there is no alternative remedy available
to it.”
[9]
Democratic Nursing
Organisation of South Africa and Others v The MEC for Health: North
Cape
(case number:
J2386/08;
Hultzer v
Standard Bank of South Africa (Pty) Ltd
[1999] 8 BLLR 809
(LC), at para [13];
Malatji
v University of the North
[2003] ZALC 32
(LC); and
National
Sorghum Bierbrouery (Edms) Bpk (Rantoria Divisie) v John NO &
Ander
(1990) 11 ILJ 971
(T);
Jonker v Wireless
Payments Systems CC
(2010)
31 ILJ 381 (LC)
[10]
Supra fn 9
[11]
(2009) 30 ILJ 2085 (LC) at para 8
[12]
Clause 12
. URGENT
APPLICATIONS
“
12.3
The normal time for the bringing of an urgent application, whether
during term or in recess,
is 10h00 on Tuesdays and Thursdays. If the
urgent application cannot be brought at 10h00 on Tuesday or Thursday
of any week,
it may be brought on any other day of the week at any
time, but the applicant in the founding affidavit must set out facts
which
justify the bringing of the application at a time other than
10h00 on Tuesdays or Thursdays.”