In the matter between:

PSA obo Mlangeni & Applicants
3 Others

AND

Department of Higher Education and Respondent
Training (Maluti TVET College)

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was held under the auspices of the ELRC.

The hearing took place at Bethlehem on 14 February 2022.

The Applicants were present and they were represented by Mr Pheko of the PSA.

The Respondent was represented by Mr Ngcosane its Labour Relations Officer.

NATURE OF THE DISPUTE AND ISSUE TO BE DECIDED

2. The dispute is whether or not the Respondent unlawfully made deductions from the salaries of the Applicants contrary to the provisions of the BCEA.

I have to determine whether or not the instruction which was issued by the Principal of the TVET College on 12 November 2018 to the Applicants was lawful and reasonable.

I have to determine whether or not the deductions which were effected on the salaries of the Applicants were in breach of the BCEA.

The dispute has been brought as alleged unfair labour practice in terms of section 191 (5) (a) (iv) of the Labour Relations Act, 1995 as amended read together with clause 7.1.3 of the ELRC Constitution, Part C.

The relief sought by the Applicants is also in issue.

BACKGROUND TO THE ISSUE

3. The Applicants were four in number. They are Shadrack Mlangeni, Siyabonga Mzolo, Nthoba Mokhejane and Senekal Stephen Mokoena.

All four Applicants are in the employ of the Respondent at its Itemoheleng Campus, Phuthaditjhaba.

4. The Applicants were party to a dispute between their union on their behalf and the Respondent as their employer. The dispute in question had reached arbitration stage and was arbitrated under the auspices of the ELRC under case PSES 807-17/18 FS.

5. The Applicants had already testified in support of their case when on 12 November 2021 the Principal of the TVET College issued a written instruction that all those Lecturers who had already testified under case number PSES 807-17/18 FS should report for duty so that they could be allocated duties of invigilating during the examinations and the duties of marking the scripts.

6. It was examination time when the Principal issued that instruction.

7. The Applicants did not heed the Principal’s instruction. They continued to attend the arbitration process of their disputes. They failed to attend at the workplace on 15 and 16 November 2018 to invigilate and to mark scripts as instructed by the Principal.

8. The Respondent booked the Applicants absent from work without pay for the two days in question and deducted monies from their salaries in respect of the affected dates.

9. The dispute before me was brought by the Applicants whose position was that the deductions from their salaries were in breach of the provisions of the BCEA.

SURVEY OF EVIDENCE AND ARGUMENT

10. Mr Shadrack Mlangeni was mandated by the other three Applicants to testify on their behalf. They were not notified beforehand about the deductions that were made on their salaries. They had not consented to the deductions being made on their salaries. The Principal had notified them per letter dated 12 November 2018 (received on 14 November 2018) that those of them who had already testified during an earlier sitting of the hearing should report for duty on 14 and 15 November 2018. The two dates were set down for the continuation of their arbitration hearing.

11. They did not comply with the letter of the Principal because they were not witnesses in their case but were the Applicants in the case.

12. He did not remember being given leave forms to complete in respect of the two dates.

They were paid their salaries for 14 and 15 November 2018. The deductions in respect of the two days were effected in March 2019.

13. In closing it was submitted on behalf of the Applicants that the Principal’s instruction was an abuse of his power and authority to weaken their strength or moral support. The instruction should have been directed to the Panelist of case PSES 807-17/18 FS to consider. As referring party they needed to form part of the dispute failing which the Panelist may dismiss the matter – see clause 43.3 of the ELRC Constitution. In terms of the Leave Determination they are entitled to paid leave for labour relations requirements, the Constitutional Court has found the unilateral deductions of salary by state employer to be unlawful.

It should be found in their favour and the Respondent should be ordered to reimburse them – it was argued on behalf of the Applicants.

14. Mr Daniel Lehlakola was Campus Manager where the Applicants were employed as Lecturers and testified as one of the two witnesses of the Respondent. The Applicant’s services were needed on 15 and 16 November 2018 to help with invigilation, among others. The Campus had to employ external invigilators to do the work which the Applicants would have done had they heeded the Principal’s instruction. He had informed the Applicants that their absences on 15 and 16 November 2018 would be on the basis of leave without pay but they refused to sign leave forms to that end.
15. Mr Veli Mabena the Principal of the Maluti TVET College testified that in November 2021 at the time when the students were writing National Examinations Lecturers were needed to invigilate and mark the scripts. He had written an instruction to the effect that those of the Applicants who had already testified in their arbitration should report for duty on 15 and 16 November 2018 in order to help with the conducting of the examinations. Having failed to give effect to the instruction, the Applicants’ salaries were docked for the two days in question.

16. In closing the Respondent argued that its instructions to the Applicants to attend work in order to invigilate was a reasonable one in the light of the fact that the Applicants in question had already testified in their dispute under case PSES 807-17/18 FS. The Applicants were granted leave without pay for the days on which they had attended their hearing even though they had been outside the hearing venue all the time. The Applicants failed to apply for leave without pay as requested by the Respondent. The Respondent argued further that it had acted in accordance with paragraphs 5.9 and 5.9.1 of the Determination and Directive on Leave of Absence in the Public Service which was a Collective Agreement. The application should be dismissed as a result.

ANALYSIS OF EVIDENCE AND ARGUMENT

17. As per their own pre-arb minute the parties have agreed that the issues to be determined was whether or not the instruction which was issued on 12 November 2018 to the Applicants was lawful and reasonable and secondly whether or not the conduct of the Respondent to deduct monies from their salaries in relation to the days affected by the instruction breached the provisions of the BCEA – in particular section 34 (1) of the Act.

18. The employees in question were engaged in a dispute with the employer at the material time – refer to PSES 807-17/18 FS. The employees had completed giving evidence at their arbitration hearing when the principal of the Respondent College gave them a written instruction to report for work and take part in invigilation and the marking of scripts which was taking place at the time. The position of the Applicants was that by giving them such an instruction in the midst of their on-going arbitration hearing the Respondent was frustrating their arbitration hearing. The Applicants did not heed the principal’s instruction.

19. While listening to the testimony of Mlangeni on behalf of the Applicants it came through strongly that the Applicants believed that the mere fact that they had an arbitration hearing going on with the Respondent at the time inexplicably changed their status from being employees who were subject to the authority of the employer to some individuals who were beyond the reach of the employer’s instruction. The employees seemed to think that they were suddenly no longer subject to the control of the employer merely because they were engaged in a dispute with the employer. Their position was ill informed and incorrect. As long as the employer-employee relationship between the parties subsisted – which was the case in this regard – the employees have a duty to give effect to all the lawful and reasonable instructions of the employer. The argument by the Applicants that if they had not attended their arbitration hearing on the two days in question their case would be dismissed in terms of the Constitution of the ELRC is disingenuous. The Applicants were at all material times represented by their union which was always in attendance on their behalf at the arbitration hearing of their dispute. Under no circumstances would the ELRC have dismissed their case if they had heeded to the instruction of the Principal particularly in the light of them having already testified. They did not personally conduct their case but the union did so on their behalf.

20. The affected employees had attended and given evidence when it was their turn to do so and they were paid while they so attended – which served to emphasize that they were still employees of the employer. A need arose on the part of the employer in the form of national year-end examinations which required the employer to call upon the services of those employees who had completed their testimonies to attend to examination related duties such as invigilation and others. It was lawful and reasonable for the principal to have issued the instruction such as he did to the Applicants. The conduct of the Applicants of having failed to give effect to the instruction in question amounted to a disregard for a lawful and reasonable instruction of the employer which should have triggered the necessary disciplinary process.

21. There can be no question that the instruction, having been issued by the Principal was lawful as the Principal was the overall head of the College and in that capacity was acting within the bounds of his office.

22. Both parties sought to rely on the Leave Determination for their positions. The Applicants sought to argue that their case fell within the ambit of clause 27.3 of the Leave Determination which provides that each trade union is entitled to 15 working days for utilization by union shop steward per annum. I do not understand how this clause helps the Applicants. To start with it has never been their case that they disregarded the principal’s instruction because they were on shop steward leave. Likewise, there was no evidence that they applied for and were granted shop steward leave as envisaged in clause 27.6. I find that reliance by the Applicants on clause 27.3 of the Leave Determination does not assist them and the reliance must be rejected. If anything clause 27.4 tends to support the control of the employer over the employee (which control the Applicants seem not to understand and accept) to which I have referred earlier where it states as follows in part:

27.4 … The Head of Department shall develop operating procedures to ensure that the utilization of the pool is properly managed recorded and monitored to ensure that the leave days available in the pool is not exceeded and/or abused (my underlining)

It must be clear therefore that shop stewards cannot utilize shop stewards’ leave independently of the control or monitoring by the employer.

23. On its part the employer argued that it had sought to comply with clauses 5.9 and 5.9.1 of the Leave Determination but that the employees frustrated its efforts by refusing to sign the leave forms that they were given. It is important to point out that the clauses on which the employer sought to rely fall under the Annual Leave category and not Unpaid Leave category which was at the heart of the dispute herein. Annual leave is employee driven in the sense that it is the employee who applies for annual leave and it is not the employer who initiates the application – clause 5.9. All that the employee needs to do is to apply for annual leave within five working days after the first day of absence due to unforeseen circumstances.

Only if the employee failed to submit the application for annual leave in accordance with the time limits envisaged in clause 5.9, is the employer entitled to invoke the provisions of clause 5.9.1 namely to notify the employee that if such application is not received within 2 working days, the leave would be regarded as unpaid leave. Clause 5.9 does not authorize the employer to give the employee annual leave application forms to complete/sign failing which they should be regarded to be on unpaid leave. On a proper reading of clause 5.9 of the Leave Determination, the employer cannot rely on that clause to justify the deductions which it effected on the salaries of the employees in this dispute.

24. I have read the judgment in Mopeli Clifford Stein v Minister of Higher Education and Training and Others (J 415/20) (14 – 15-2020) as relied upon by the employer. I have not come across it in the judgement where the Judge in that matter concurred with the employer that where an employee is not at work “the employer has a right to implement no work, no pay rule” through leave and deduct the money paid for the day (-s) from the employee! The judgement in question does not help the employer in this matter.

25. Having found that the instruction of the Principal to the employees was lawful and reasonable, the non-compliance by the employees by not reporting for duty to give effect to the Principal’s lawful instruction meant that they were on unauthorized absence from work on the dates in question. The employer has an obligation to pay an employee for services rendered by an employee. It is in the nature of an employment contract that an employee is entitled to payment from the employer for services that he has rendered. In this dispute the employees were specifically instructed to report for duty by the Principal but they decided to defy the lawful instruction and stayed away from work. They did not render any services to the employer on the days in question and were not entitled to any payment for those days. To contend otherwise would be at odds with nature of an employment contract.

26. That the employees were paid their salaries which included the days on which they did not work at the end of the affected month meant that they were paid salaries to which they were not entitled in respect of the affected days. The employer was entitled to recover from the employees the monies that they were paid for the days on which they did not work and which monies were not due to them as they had not rendered any services to earn the payment. The recovery by the employer of the monies in question does not at all constitute unlawful deduction from the employees’ salaries. All what the employer did was to recover the monies which it had paid whilst the monies had not been earned by the employees. Section 38 (1) (a) of the Public Service Act 1994 as amended makes provision for the correction of incorrectly paid salaries, among others.

27. It follows from the foregoing that I find that section 34 of the BCEA on which the employees heavily leaned in support of their case does not apply to the facts of this dispute. The employer did not affect any unlawful deductions on the salaries of the employees as contended for by them. All that the employer did was correct a payment it had made while not earned.

28. AWARD

28.1 I find that the Department of Higher Education and Training (Maluti TVET College) did not effect any unlawful deductions on the salaries of the Applicants.

28.2 I find that the provisions of section 34 of the BCEA did not apply to this dispute.

28.3 I dismiss the application in this matter.

ELRC PANELIST: M. MOLOI
14 June 2022