Factual background

The applicant, a clinical manager, medical doctor and office bearer of the South African Medical Association Trade Union (SAMATU), attended several SAMATU and Health Professions Council of South Africa (HPCSA) meetings and activities during days which he ought to have been at work. SAMATU had formally requested his release from duty to attend the activities and the applicant had formally submitted his request for leave for the days he was attending HPCSA meetings. However, when the applicant approached the human resources (HR) department to access his payslip, he discovered that his employer had made two substantial deductions amounting to R105,000 which were categorised as “leave without pay” and “overtime”. Soon thereafter, the applicant approached the High Court, Mpumalanga Division, on an urgent basis, seeking an order declaring the deductions unlawful and interdicting his employer from making further deductions. The respondents, officials within the Mpumalanga Department of Health, opposed the application on the basis that the matter lacked urgency and that the High Court lacked the jurisdiction to adjudicate the matter. The employer alleged that the applicant had not obtained the correct approvals, hence the deductions from his remuneration.

The legal position

The BCEA strictly limits when deductions may be made by an employer from an employee’s salary. In terms of section 34, an employer may only deduct from an employee’s remuneration where such employee has agreed in writing, or where the deduction is authorised by law, by a collective agreement, court order or arbitration award. Any deduction made outside of this scope is unlawful.

Court’s findings

The High Court heard the matter on an urgent basis. The court rejected the jurisdictional point raised by the respondents on the grounds that it enjoyed concurrent jurisdiction in terms of section 77(3) of the BCEA on the basis that the claim was contractual in nature.

On the merits, the High Court, per Vukeya J, rejected the employer’s argument that the employee’s absence was unauthorised and that it could therefore deduct from his remuneration. It was common cause that the SAMATU had requested that the employee be absent from work to partake in trade union activities, by submitting leave requests for days which he would be absent. It was further common cause that the employer had not responded to the requests from the trade union.

In assessing the lawfulness of a deduction in terms of section 34 of the BCEA, the court held that the question was not whether or not the leave (being the reason for the deduction) was approved or authorised, but whether or not the deduction met the criteria set out in section 34. The court conveniently summarised the section 34 criteria as such deduction being authorised by either (i) a written agreement to the deduction of a debt specified in that agreement; or (ii) the deduction is required or permitted in terms of a law, a collective agreement, a court order or an arbitration award. The High Court pointed out that there was no agreement to deduct from the employee’s remuneration and held that the employer “resorted to self-help” when it deducted from the applicant’s remuneration. The court found such conduct impermissible and contrary to section 34 of the BCEA. In the result, the High Court interdicted the employer from making deduction to the employee’s remuneration and ordered that the employee be repaid all monies which were unlawfully deducted.

Key takeaways

• The High Court has concurrent jurisdiction with the Labour Court in respect of contractual claims arising from an employment relationship, including claims based on section 34 of the BCEA.
• Employers may not deduct amounts from an employee’s remuneration without complying with section 34 of the BCEA, even where they believe, or as a matter of fact, the employee is not entitled to payment.
• Even where an employee’s absence from work is questioned, an employer is required to follow lawful processes and may not resort to self-help by withholding the employee’s contractual remuneration. It amounts to breach of contract where an employer withholds or deducts such contractual remuneration in the absence of consent from the employee.