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[2018] ZALCPE 43
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NEHAWU v Eastern Cape, Department of Sports, Recreation, Arts and Culture (P485/18) [2018] ZALCPE 43 (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
EASTERN CAPE, DEPARTMENT OF SPORTS,
RECREATION,
ARTS A
ND
CULTURE
First Respondent
Heard:
21 November 2018
Judgment
delivered: 22 November 2018
Edited:
21 December 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
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 s 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.