In the matter between
Kobo, HL Applicant
And
Education Department of Eastern Cape Respondent
Appearances: For the applicant: Mr. Henry Loyiso Kobo appeared in person.
For the Respondent: Mr. Patrick Nkomana: Chief Education Specialist – Labour
Relations.
Arbitrator: Thobela Ncetezo
Heard: 21 August 2024
Delivered: 8 September 2024
SUMMARY: The respondent deducted an amount of R33 604.36 from the remuneration of the applicant who was allegedly absent from work without authority from 21 June 2012 to June 2022.
ARBITRATION AWARD
Details of hearing and representation
1. The dispute was scheduled for a virtual arbitration on 21 August 2024. The applicant, Henry Loyiso Kobo, appeared in person. Mr. Patrick Nkpmana who is employed as Chief Education Specialist: Labour Relations represented the respondent, Education Department of Eastern Cape. Both parties submitted bundles of documents. The proceedings which were digitally recorded were conducted in English. All witnesses testified under oath.
2. The parties requested to submit closing arguments in writing for consideration, which I received on 28 August 2024.
Issue to be decided
3. I am required to decide whether the deduction of monies from the applicant’s salary was lawful.
Background to the dispute
4. The Applicant submitted that he started working for the respondent in 1994 and is currently on sick pension. He was employed by the Respondent as a school principal at Inxu Primary School at Ngxaza Circuit in the Joe Gqabi district. His last date of employment was 31 May 2024.
5. He submitted that the respondent implemented his leave without pay and that was not communicated to him.
6. The respondent submitted that the applicant was absent from work without leave from June 2021 to June 2022. The respondent denied that the applicant was not informed that his leave was going to be without pay
Survey of evidence and arguments
Applicant’s case
7. The Applicant testified that on 5 April 2022 he received an e-mail from the Circuit Management Centre Head, Dr. Malobola inviting him a meeting on 6 April 2022. His Circuit Manager also attended that meeting. In that meeting he was told that he took unauthorised leave and last signed on 11 June 2021, which he admitted was true. On 14 June 2021 he attended a workshop for presiding officers. On 15 June he had to take his books to an auditor. On 17 June he did not report for work because he wanted to check the school’s financial audit statement.
8. On 21 June he was not well but visited the doctor’s office on 22 June and was booked off until 24 June. On 25 June he was admitted in hospital but did not remember when he was discharged. The doctor gave him a short incapacity leave, which was from 27 July to 31 August 2021. It was extended from 1 September to 31 October 2021. On 1 November he was admitted at Riverview Mental Hospital in Underberg. His leave ended on 5 December 2021.
9. From 15 – 27 January 2022, he was admitted at St Mary’s Hospital. He was then referred to City Hospital in Durban on 28 January 2022. On 18 March he had a spinal cord operation, and he submitted short term incapacity leave from 18 March to 30 April 2022.
10. While he was still on leave Dr Malobola invited him to a meeting. In that meeting Mr. Zozi told him that his leave was unauthorised and that they are being investigated because of his absence. They advised him to resign or take incapacity termination.
11. In December 2022 he submitted a recommendation from his doctor for a transfer on the grounds that the environment he was working in was a trigger. He did not receive any response from the respondent.
12. In September 2022 R13 000.00 was deducted from his salary and he received a letter which confirmed that his leave was without pay. He took leave from 9-14 October 2022 because his father had passed away.
13. In January 2023 his psychiatrist recommended a long term incapacity leave from January to June 2023. Thereafter it was extended from July to December 2023. He then applied for sick pension which was approved in April 2024.
14. He testified that he was last at school on 11 June 2021. He admitted that he did not report his absence to the supervisor and that it was not proper not to report for work. He did not receive any communication that his leave application was approved or not. The Circuit Manager recommended leave without pay. The total amount which he claims was deducted from his salary is R33 604.36.
Respondent’s case
15. The witness of the respondent, Mr. Mandlakapheli Zizo, testified that that he is employed as Deputy Chief Education Specialist: Labour Relations – Christ Hani East District. In 2021 he was a Circuit Manager at Joe Gqabi District and supported the applicant like any other principal in that district.
16. He further testified that it was not easy to work with the applicant as he would be absent from work without permission and not submit any leave application. In some instances, even the School Management Team would not know his whereabouts. They went to his residence and called him but without success.
17. The applicant has eight days that were unaccounted for. There was no leave application form, or any medical certificate submitted. He stated that an educator who wants to take leave, is required to negotiate it at least a day before he takes leave. If he is not at work, he must inform the principal and submit a leave form on his return. The applicant did not follow this rule. He was absent from 21 June 2021 to June 2022. In his leave application from 16 March – 30 September 2021, had missing information namely, the medical report and motivation letter about his health condition. The HR department said they would not attend to his application until the missing documents were submitted by 14 June 2022, which he did not receive.
18. On 17 June 2022 the District Director enquired about the applicant. It was almost a year that the latter was absent from work and there was pressure from the community. He was not accounted for at school and with the HR department. He had informed the applicant that whenever he was to submit leave forms, he should contact him for assistance, but he did not. The applicant’s leave application could not be approved because of lack of information. The leave forms which he submitted in 2021 were not complete. The applicant was aware of a procedure for leave application as he was also a school principal. The respondent was lenient to him because not all the days of his absence were deducted from his salary.
19. The meeting that the applicant was invited to in April 2022 was to persuade him to return to work. He told them that he would never return to work and that they can do whatever they wanted. He informed the applicant about the consequences of taking leave without authority. On 16 June 2022 he asked him to submit documents in support of his leave application but in vain. The witness recommended leave without pay from 16 March 2021 to 30 September 2022.
Analysis of evidence and arguments
20. Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.
21. The dispute before me related to the deduction of money from the applicant’s remuneration. The applicant who is now on sick pension alleged that the respondent deducted an amount of R33 604.36 from his salary on allegations that he was absent from work without leave. He denied that his absence was without leave. His testimony was that his leave was recommended by his circuit manager. The leave that the applicant referred to was indeed recommended by the circuit manager, but it was not approved (Page 31 of RB) and he admitted this fact. His testimony was that he did not receive any communication indicating whether his leave application was approved or not. The respondent admitted that deductions were implemented from the Applicant’s salary for the days on which he was allegedly absent from work without leave.
22. The testimony of both parties indicates that the dispute in question relates to deductions made from applicant’s remuneration by the respondent. In his closing arguments the applicant stated that the salary deductions were made arbitrarily applying a principle of “no work no pay”. This argument makes it clear that the dispute is about deductions from the applicant’s remuneration. Reference was further made to Section 34 of the Basic Conditions of Employment Act 75 of 1997, as amended (BCEA.), which regulates deductions from an employee’s salary. In terms of Section 77 of the BECA the Labour Court has exclusive jurisdiction to deal with unlawful deductions. In Amalungelo Workers Union and Others v Philip Morris South Africa (Pty) Limited and Another (2020) 41 ILJ 863 (CC) the Court noted that section 77(1) states in unambiguous terms that the Labour Court has exclusive jurisdiction over matters arising from the BCEA. The only exception is in respect of where the Act itself provides otherwise. The Labour Court followed the same decision in O`Reilly v CCMA and Others (JR2395/19) [2022] ZALCJHB 33 and referred to Section 77(1) of the BCEA which provides that “Subject to the Constitution and the jurisdiction of the Labour Appeal Court, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters in terms of this Act”.
23. In consideration of the abovementioned section and judicial precedents, I am of the view that the bargaining council has no jurisdiction to entertain s dispute about deductions from an employee’s remuneration.
24. I accordingly make the following award;
Award
25. The application is hereby dismissed.
Panellist: Thobela Ncetezo