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[2018] ZALCPE 39
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NEHAWU v Dept of Sports, Recreation, Arts and Culture, Eastern Cape (P485/18) [2018] ZALCPE 39 (22 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
reportable
CASE
NO: P485/18
In the matter between:
NEHAWU Applicant
and
DEPT OF SPORTS, RECREATION,ARTS
AND
CULTURE, EASTERN
CAPE First
Respondent
Heard: 21 November 2018
Judgment
delivered: 22 November 2018
JUDGMENT
VAN
NIEKERK J
[1] The applicant seeks an interim
order declaring deductions that the respondent has made against the
salaries of certain of its
members declared unlawful, reimbursing the
members for the amounts deducted, and interdicting the respondent
from deducting any
further monies from the members’ salaries.
[2] The events giving rise to this
application have their roots in an unprotected strike that occurred
at the respondent’s
office in the Alfred Nzo district. The
unprotected strike commenced at the district office on the 12 October
2018. The applicant
approached this court on an urgent basis on 19
October 2018, seeking an interim order declaring the strike
unprotected and interdicting
the respondents from committing acts of
misconduct. That misconduct extended to threats of violence, acts of
disruption, kicking
and banging of doors, tampering with computer
service and telephone lines, and locking the registry office. On the
return date,
on 13 November 2018, the rule
nisi
was confirmed
by Lallie J, except in one respect that is not material to these
proceedings. There were 46 employees identified by
the respondent
(who was the applicant in the urgent proceedings) as employees
participating in the strike; they were listed in
an annexure to the
notice of motion. Not one of them opposed the confirmation of the
rule
nisi
on the basis that they did not participate in the
strike by reason of their being on annual leave, on duty outside of
the office
when the strike took place, or for some other reason.
[3] The grounds for urgency in the
present instance relate to various attempts by the parties to resolve
the issue of the application
of the respondents ‘no work, no
pay’ policy in relation to the strike. I am satisfied that
applicant took reasonable
steps to file the application without undue
delay.
[4] However, that is not the end of
the inquiry into urgency. This court has conventionally been
disinclined to regard loss of income
per se
as a ground for
urgency (see
Harley v Bacarac Trading 39 (Pty) Ltd
(2009) 30
ILJ
2085 (LC). If this were to be recognised as a ground for
urgency in itself, virtually every dismissed employee would have the
right
to approach this court for urgent relief. (See
SACAWU v
Shoprite Checkers (Pty) Ltd
[1997] 10 BLLR 1360
(LC).)
[5] The applicant contends that the
application is urgent because the amounts to be deducted are
significant and will have a ‘detrimental
effect’ on the
members’ finances, to the extent that the members will not be
able to meet their obligations to creditors
and their dependants.
However, the applicant has provided no evidence of any irrevocable
harm that its members would suffer should
the relief sought be
refused – the averment of a negative impact on their financial
circumstances is no more than a sweeping
statement made by the
regional secretary. That statement is not substantiated in any way,
neither by way of confirmatory affidavits
nor evidence of individual
hardship and irrevocable harm that would be occasioned should urgent
relief be denied.
[6] In the absence of any specific
evidence that places this case in the category of the exceptional,
the general rule must prevail.
It is not sufficient, as the
applicant’s counsel submitted, to contend that the papers were
prepared in haste, and that the
applicant was unable, within the time
available to it, to provide any particularity of financial hardship.
The applicant chose
to file the application when it did. It must have
been aware of the general rule against the granting of urgent relief
when the
claim is in effect for loss of income, and it ought to have
foreseen the need to establish a case of exceptionality. The
applicant
failed to do so. In the circumstances, the general rule
must apply, and application stands to be struck from the roll for
lack
of urgency.
[7] While not strictly relevant to
these proceedings given my finding that the application is not
urgent, in so far as the applicant’s
claim to a
prima facie
right is based on section 34 of the Basic Conditions of Employment
Act (which prohibits deductions from remuneration without consent
or
authority in law), in the present instance, there is no deduction.
Section 34 assumes a deduction from remuneration earned.
The
application of a ‘no work-no pay’ principle is simply
that remuneration is not payable for days not worked. This
is
recognised by s 67 (3) of the LRA, which states clearly that an
employer is not obliged to remunerate an employee for the period
that
the employee participates in a protected strike.
A fortiori
,
there is no obligation to remunerate an employee for the period of
any unprotected strike. In short, when an employer refuses
to pay
remuneration for days not worked on account of strike action, s 34 is
not breached when payment is withheld.
[8] It is also not necessary for me to
consider the parties’ submissions regarding the identity of
those of the applicant’s
members who participated in the strike
and those who aver that they did not. I would observe though that
given the members’
failure to oppose the confirmation of the
rule
nisi
, this court made a finding on 13 November 2018 that
at least 46 employees participated in an unprotected strike. In the
present
application, the applicant represents 43 of its members.
There is no attempt to identify how many of those now represented
were
the subject of the finding regarding the unprotected strike.
Instead, makes broad averments that members worked and signed an
attendance
register, were off-site on official duty or on leave.
These are not matters of which the deponent to the founding
affidavit, the
regional secretary, could have personal knowledge.
None of the averments are supported by confirmatory affidavits from
any employee
to state that he or she rendered services during the
strike and is thus entitled to remuneration. . It was incumbent on
the applicant
to identify those applicants whom it claims rendered
their services during the strike, and to provide some proof of that
fact.
Again, there is not a single confirmatory affidavit.
[9]
Finally, s 162 affords the court a broad discretion to make orders
for costs according to the requirements of the law and fairness.
In
my view, there is no reason why costs ought not to follow the result.
The opposition to these proceedings, which never had any
reasonable
prospect of success, has been funded by the taxpayer. There is no
reason why the respondent ought not to be entitled
to recover its
costs.
I make the following order:
1.
The application is struck from the roll for
lack of urgency, with costs.
André van Niekerk
Judge
REPRESENTATION
For the applicant: Adv Ntsepe,
instructed by Thanyaane Attorneys
For the respondent: Adv Mayekiso,
instructed by the state attorney.