Sneller Verbatim/MB
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J2609/02
2002-07-03
In the matter between
GARY WAYNE HOLLAWAY Applicant
and
MERISANT (SA) (PTY) LTD Respondent
__________________________________________________________
J U D G M E N T
__________________________________________________________
WAGLAY J: This is an urgent application. The applicant in this
matter was placed under suspension by his employer the
respondent, pending a disciplinary hearing to be held for
alleged misconduct. After being placed on suspension, certain
discussions were held between the legal representatives of the
two parties. These discussions according to the applicant
culminated in an agreement being concluded between them.
The agreement that was concluded is recorded by the
applicant as being the following:
1. That should charges be formulated against the applicant and a
disciplinary inquiry held, an independent counsel would be
appointed by agreement between the parties to chair such
inquiry, and
2. The applicant will be entitled to legal representation at such an
inquiry.
The respondent according to the applicant has renaged
on the agreement and therefore come to this court for an
order of specific performance.
The second issue before this court relates to
remuneration payable to the applicant for the month of June
2002. In this regard it is relevant to note that the applicant
who holds a senior position in respondent's enterprise was
issued with a circular letter from the receiver of revenue
(hereafter “Receiver”) on 25 February 2002, which had the
effect that the respondent was not obliged to deduct PAYE tax
from the applicant's salary. The applicant was required to pay
his taxes as would any provisional tax payer.
Notwithstanding this, respondent has for the month of
June not paid applicant his remuneration stating that it utilized
such remuneration towards paying part of the PAYE tax that is
due by the Applicant in respect of the period March 2002 to
June 2002.
Applicant seeks this court to order payment of the full
remuneration to him for the month of June alleging that the
deduction made by the respondent is unlawful.
Finally applicant seeks an order compelling the
respondent to provide further and better particulars to its
request as well as other requested documentation so that it
can be in a position to prepare for the disciplinary inquiry
contemplated by the respondent.
I will deal firstly with the last issue. An application to
compel the respondent to provide particulars and documents
was only made at a time that applicant filed its reply to
respondent's opposing papers to this application. Respondent
has not been given an opportunity to respond to this
application. This is sufficient ground for me not to entertain
this issue.
I am also not prepared to entertain this issue on the
grounds that this court does not impose procedural steps in
respect of disputes over which it does not have jurisdiction.
See in this respect Morepane v Gilbey's Distillers and Vinters
(Pty) Ltd [1997] 10 BLLR 1320 (LC). The only time the court
may do so is where there are exceptional circumstances in
that, failure to provide or secure documents which may be
necessary for the proper determination of substantive issues
may result in its permanent loss and thus cause severe
prejudice to one of the parties. See in this respect Botha v
Gensec [2000] 3 BLLR 260 (LC).
In the circumstances the application to compel
particulars and documents is refused.
Turning then to the issue of remuneration, while there is
an obligation on an employer to pay remuneration due to the
employee within seven days after the end of the month in the
case of a monthly paid employee in terms of the Basic
Conditions of Employment Act, and that the employer is not
entitled to make any deductions without the employee's
consent, other than those in terms of some statutory
obligation, the issue here is not the refusal by the respondent
to pay the remuneration, but to deduct the money due to the
Receiver of revenue from that remuneration.
The applicant argues that since PAYE has never been
deducted from his remuneration, respondent is not lawfully
entitled to make this deduction. This argument is presented
despite an acknowledgement by the applicant that
notwithstanding the letter from the receiver of revenue
referred to above, due to an amendment in the Income Tax
Act 58 of 1962, since March this year, the concession of being
excused from PAYE tax no longer applies. It is common cause
that since March 2002 the PAYE tax was supposed to have
been deducted from applicant's salary and paid over to the
receiver of revenue, and this was not done.
While respondent sought to apportion blame for this on
the applicant whether it is correct in doing so, is irrelevant for
the present purposes.
The respondent thus decided, no doubt because of the
precarious relationship between the parties, to ensure that
monies due to the Receiver was immediately deducted and
paid over and has therefore proceeded to do this. The result
has been that the applicant is effectively left with no income
for June, and he is very unlikely to receive any income in July if
the respondent, as it is obliged to do, deducts all such monies
that are due to the Receiver in terms of the Income Tax Act
and which amount the respondent is obliged to deduct and
pay over to the Receiver.
The actions by the respondent is by no means unlawful.
It is an action, it is obliged or at least entitled to take. That
this may cause hardship to the applicant, there is no doubt,
but this court cannot where a party takes action it is in law
entitled to take, stop such action because of the hardship that
may result as a consequence thereof.
Applicant has referred me to various sections in the
Income Tax Act to indicate that an employer is not allowed to
make a deduction from an employee's remuneration
particularly with regard to arrears, unless the employer has
paid such taxes on behalf of the employee. This submission is
of no merit vis-à-vis an employer and employee. While it is
true that the act provides that the employer may deduct from
his employee's remuneration taxes in arrears after it (the
employer) has paid such taxes, this is so because in terms of
the Income Tax Act notwithstanding the employer's failure to
deduct the taxes from the employee, it, the employer , is still
obliged to make the payments to the Receiver, that is the
employer is obliged to pay even before if he makes the
deduction for the arrears; if he has not done so it does not
preclude him from making the deduction and then paying it
over to the Receiver.
The Income Tax Act also makes provision for payment of
PAYE taxes to be deferred on application to the Receiver.
However there is no obligation on an employer to apply for
such concession. The fact that it has not done so here did not
render the deduction made by the employer and the manner
in which it was done, unlawful.
I am therefore not prepared to come to the applicant's
assistance in that regard.
Turning then to what I consider to be the principal issue
before me, the applicant alleging an agreement seeks specific
performance. The agreement as stated earlier according to the
applicant is the following:
1. an independent counsel will be appointed to chair the
disciplinary inquiry, and
2. the applicant will be entitled to be legally represented at such
inquiry.
Applicant further adds that the normal consequences of such
right of appointing legal representative is the right to agree
upon dates for the hearing of the disciplinary inquiry.
There is of course a dispute about the agreement as
alleged by the applicant. It is sad that there is this dispute
about exactly what two attorneys had agreed to. Both require
of me to make a finding that the other is being less than
candid with regard to agreed terms of the agreement.
I have however decided not to pronounce on who it is
that should be believed particularly when this may be an issue
relating to procedural fairness that an arbitrator may be
required to determine, assuming that the applicant is
dismissed and challenges such dismissal. However, I am for
the purposes of this matter prepared to assume that the
agreement as alleged by the applicant was in fact concluded
between the parties.
Since, on this assumption, there was a duty to agree
upon the selection of the chairperson for the disciplinary
inquiry and to agree on dates, the failure by the respondent to
comply with these terms and unilaterally deciding upon the
chairperson and dates constitutes a breach of the agreement
While it is so that a victim of the breach has the right to
seek specific performance, the court always has a discretion
on whether or not to grant such relief. If I weigh the
consequences of the alleged breach what we have is that
applicant is faced with having his disciplinary inquiry heard by
a chairperson who he has not agreed to and having the
hearing on the dates that is not convenient to him. Taking the
worst scenario the Applicant could be dismissed. If so, what is
his remedies? He may refer the matter in terms of the dispute
remedy procedures as provided for in the Labour Relations Act
and have his disciplinary hearing heard de novo and be
granted the relief which has the effect that no dismissal had in
fact taken place.
On the other hand complying with the agreement cannot
be prejudicial to the respondent particularly when it has
already decided to appoint an independent third party to chair
the inquiry. However the fact that it is not prejudicial to the
respondent is not sufficient for me to grant specific
performance. Specific performance I am satisfied should only
be granted where, but for the granting of it would result in the
victim of the breach in an employment context suffering
irreparable harm. In the matter before me by not granting
specific performance, applicant is not placed in a position
where he will suffer irreparable harm because of the relief
available to him as recorded earlier.
In the circumstances I am not prepared to grant the
relief sought.
This then brings us to the issue of costs. Although the
respondent did waste some time in raising three issues as a
point in limine , the time spent thereon was negligible. With
regard to the issues raised by the applicant, all of which have
been found to be of little merit I see no reason why costs
should not follow the result. In the result the application is
dismissed with costs.
SIGNED AND DATED AT BRAAMFONTEIN ON 03 JULY
2002
WAGALY J
JUDGE OF THE LABOUR COURT
FOR APPLICANT : Adv M.M Antonie instructed by Jowell Glyn and
Marais.
FOR THE RESPONDENT: Adv R. Vender instructed by Venter, Dupper and
Wildenboer.
DATE OF HEARING AND
JUDGEMENT: 03 JULY 2002.