Gqithekhaya and Others v Amathole District Municipality
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | B Hartle J |
| Judgment Date | 05 August 2022 |
| Docket Number | EL 601/2021 |
| Hearing Date | 21 April 2022 |
| Court | East London Circuit Local Division |
| Citation | 2022 JDR 2316 (ECGEL) |
Hartle J:
The eleven applicants form part of a large group of employees of the respondent who it is common cause took part in an unprotected strike between 9 November and 15 December 2020. [1]
The applicants continued on the face of it to receive payment of their ordinary remuneration (payable monthly in arrears) after the strike despite the hiatus in their services rendered, but five months after the event, between 28 April and 5 May 2021, they were furnished with notices by the respondent informing them of its decision to make deductions against their salaries over a period of two months (end of May and June 2021 respectively) in order to give effect to the "no-work no-pay" rule adopted by them with regard to their participation in the unprotected strike. Preceding the personal notices received by them the respondent had announced its intention in the media on 9 March 2021 to implement the principle of no-work no-pay against all the employees who had taken part in the strike. The media statement had forewarned that deductions would be spread over four months effective from 25 March 2021, contrary to the two-month regime imposed on the present applicants.
2022 JDR 2316 p3
Hartle J
The applicants claim that they were not afforded any opportunity to show cause why the deductions should not be made vis-à-vis each of them or to make representations concerning how the recovery strategy was to be implemented. To the contrary they averred that the recovery plan concerning them was being undertaken without their consent or judicial process.
They initially approached this court (under Part A) for a prohibitory interdict on the basis that the respondent had not followed the provisions of section 34 of the Basic Conditions of Employment Act, No. 75 of 1997 ("BCEA") in implementing their recovery strategy, alternatively section 67 (3) of the Labour Relations Act, No. 66 of 1995 ("LRA"), which is the ostensible premise upon which the respondent had intimated via the press release it was relying on to justify its implementation of the no-work no-pay principle. [2]
The argument advanced in support of the interim interdict was premised on the applicants' allegation that by making the impugned deductions without following due process, the respondent was engaging in unfettered self-help which by its very nature justified the urgent intervention of this court by the relief sought.
They averred that without any prior engagement with them or their consent having been obtained, without following legal process, without applying the audi alteram partem rule in respect of the application of its practical decision to implement their recovery strategy or considering whether the amount of the deductions in relation to their remuneration was allowable (assuming the
2022 JDR 2316 p4
Hartle J
provision of section 34 (2) of the BCEA to have been of application) [3] , without any contractual entitlement or concession by virtue of a collective agreement or authority of an arbitration award or order of court, the deductions were, simply put, not legally permissible and fell to be interdicted.
Inasmuch as a prior legal process was claimed necessary, [4] the applicants alluded to the uncertainty regarding whether in all the circumstances it had been proper for the respondent to invoke the no-work no-pay rule vis-à-vis any of the affected employees at all (given that it had created a precedent in prior unlawful industrial action in 2019 not to dock anyone's salary), the inexplicable delay in making the decision after the fact to invoke the principle concerning them, as well as the lack of uniform treatment of all the striking employees concerning the manner and practical implementation of its recovery strategy.
The matter co-incidentally came before me under Part A on 25 May 2021. After hearing argument, I issued an interim order on 27 May 2021 in the following terms:
The respondent is interdicted from making deductions against the salaries of the applicants under the pretext of the "no work no pay" principle and, where applicable, to pay back any money it may by the time of the grant of this interdict already have deducted against the salaries of the applicants under the mantle of the "no work no pay" doctrine, pending the final determination of the relief sought by the applicants in Part B of the notice of motion. [5]
The respondent is directed to pay the costs of the application for interim relief on a party and party scale."
2022 JDR 2316 p5
Hartle J
At the time I provided brief reasons for my ruling, the crux of which I repeat below:
In brief the applicants do not as the respondent suggests simply seek payment of remuneration they were (not) paid during the two month unprotected strike. [6]
To the contrary the harm they seek to avert pro tempore by the grant of the interim relief is against the arbitrary deductions summarily effected or about to be effected against their salaries, the payment of which they are lawfully entitled to, [7] by a method in respect of which they were not consulted and without following any legal process and in a scenario where the common law principles of set off cannot in my view apply (because the issue of what amounts the respondent is entitled to collect as against each of the applicants has not yet been resolved) and remains yet to be determined. [8]
The rights of the applicants affected by the unlawful and arbitrary deprivation of their present and future lawful salaries is their right to have the rule of law enforced or respected, the contention being that the respondent has resorted to self-help by taking the law into its own hands without following any legal process or by the undermining of the applicable judicial process.
In this respect it is contended that the deductions ought to have been made consistent with the provisions of section 34 of the Basic Conditions of Employment Act, No. 74 of 1997 ("BCEA") which requires a court order or arbitration award authorizing the deductions made by it, rather than a general order of court simply declaring the strike in which they were involved as an unprotected one, or the applicants' consent in writing to the deductions. This is particularly so since on the face of it a settlement agreement deriving from the earlier unlawful industrial action suggests that the respondent would not adopt a one-size fits all approach with regard to the acceptance of a no work no pay principle concerning the employees who participated in the unprotected strike. There is also the suggestion that some of the days involved over which the unprotected strike extended should have conduced to the benefit of the applicants who would not in the ordinary course have been required to report for duty because of a rotation roster system imposed during the COVID state of emergency. (Whatever disputes exist between the parties on the papers in this respect does not detract from the fact that the sequelae to the unlawful industrial action, giving rise to each employee's supposed indebtedness to the respondent by the salary payments that were not due to them because of the no work no pay principle, is not reflected in any final order or arbitration award or collective agreement.)
The effect of the respondent's conduct thus far in the whole debacle, and the threat of its unlawful future conduct, lies in the fact that they have or will be arbitrarily and summarily dispossessed of their property (their salaries to which they are contractually entitled) [9] and materially aggrieved thereby without following the prescribed legal process, thus rendering the deductions as constituting self-help.
2022 JDR 2316 p6
Hartle J
The violation of the applicants' fundamental rights, although it also co-incidentally entails an infringement of their rights to fair labour practices, certainly makes it the business of this court and clothes it with the necessary jurisdiction. [10]
The current dispute or affliction is further one that is decidedly between the applicants (who have individually become indebted in principle to the respondents) and the respondent and the argument of a misjoinder of the unions involved in relation to the unprotected strike accordingly holds no merit. [11] The present relief seeks to address the mischief of the unique impact to each applicant by the actual or threatened deductions in each instance which have arbitrarily been imposed.
On the issue of urgency, once the true nature of the parties' individual grievances are seen for what they are, it becomes abundantly clear why the matter takes on urgent proportions. Self-help should not be countenanced under any circumstances and in this instance I accept that the applicants fall to be grievously impacted by the deductions as that will wreak financial penury for each of them. [12]
In all the circumstances I am satisfied that that the applicants have established the necessary requirements for the grant of the interim relief sought in Part A of the Notice of Motion."
The matter came before me again for a determination under Part B.
Under this mantle the applicants claim the following:
"Subject to the interim relief in Part A above:
Declaring the Respondent's decision to implement the 'No Work No Pay' deductions, ostensibly in terms of Section 67 (3) of the LRA, against the salaries of the Applicants to be unlawful. [13]
Declaring that the deductions to be made from the salaries of the Applicants are not in accordance with the provisions of Section 34 of the BCEA.
Declaring that the Respondent's decision to implement the 'No Work No Pay' deductions from the Applicant's salaries amounts to self-help.
Declaring that it is incompetent for the Respondent to belatedly (five months...
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