Article 48/2024

In the scenario where an employer incorrectly increases employees’ salaries and car allowances, are the employees entitled to approach the high court to determine whether or not the employer’s subsequent action in reversing such increases amounts to a breach in terms of s34 of the BCEA?

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• The high court, in Ngcangula v Mhlontlo Local Municipality and Others; Nqekeho v Mhlontlo Local Municipality and Others (2022) 33 SALLR 267 (ECM); [2022] 12 BLLR 1177 (ECM), adopted the following approach:
  • in terms of s34 of the BCEA, the employer may not make any deduction from an employee’s remuneration unless:
    • the employee, in writing, agrees to the deduction in respect of the debt specified in an agreement, or
    • the deduction is permitted in terms of law, collective agreement, court order or arbitration award
  • in terms of s34(2) of the BCEA, a deduction made, in terms of s34(1)(a), is to reimburse the employer for loss or damage, only if:
    • the loss or damage occurred during the course of employment and due to the fault of the employee
    • the employer followed a fair procedure and gave the employee a reasonable opportunity to show why the deduction should not be made
    • the total amount of debt does not exceed the actual amount of loss or damage
    • the total deductions from the employee’s remuneration do not exceed one-quarter of the employee’s remuneration in money
  • it is also worthy to refer to s34(5) of the BCEA, that indicates that an employer may not require or permit an employee to repay any remuneration, except for overpayments resulting from an error in calculating remuneration
  • in casu, the employees based their claim on their contractual rights and the employer relied on s34(1) and s34(2) of the BCEA to justify its action
  • according to the labour court, the employer, in casu, was not able to place any reliance on a provision of law, collective agreement, court order or arbitration award
  • the civil courts and the labour court have concurrent jurisdiction to determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of the BCEA – with reference to Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC), the high court in casu held that it had jurisdiction to determine the labour dispute concerning the aforementioned contractual rights, dealing with the deduction from the employees’ remuneration already paid to them – the high court, in conclusion, found that the deductions from the employees were in breach of s34(1) of the BCEA (it was also found that the deductions constituted unfettered self-help by the state, taking the law into its own hands and, therefore, constituting a violation of s1(c) of the Constitution of the Republic of South Africa.

See, further, North West Provincial Legislature v National Education, Health and Allied Workers Union (2023) 34 SALLR 81 (LAC).