JUDGEMENT
-19/11/2007
1.
This matter started life as an urgent application brought on notice
of motion supported by affidavit. The Applicant claimed payment of
her wages for the months of March, April and May 2007 and an
interdict restraining the Respondent from unlawfully withholding
payment of her wages in future months. A dispute of fact arose on
the papers once the Respondent had filed its opposing affidavit, and
this dispute was referred to oral evidence by consent of the
parties. After hearing oral evidence and legal arguments advanced by
the representatives of the parties, the court must now decide
whether the Applicant is entitled to payment of her wages for the
period in question.
2.
It is common cause that the Applicant was employed by the Respondent
in 2004 as a cashier. On 13th
February
2007 she was suspended without pay pending disciplinary action to be
taken against her. Subsequent to a disciplinary hearing before an
independent chairman which the Applicant failed to attend, she was
found guilty of offences which included gross dishonesty, gross
insubordination and breach of trust.
3.
The chairman's recommendation that the Applicant be transferred to
another section and stop working as a cashier was accepted by the
Respondent, which redeployed the Applicant as a filling station
attendant at the Respondent's filling station at Nhlangano. The
Applicant was instructed to report for duty on Monday 19th
March
2007 at 2 p.m.
4.
The Applicant alleges that she duly reported for work but the
Respondent failed to pay her wages at the end of March 2007 or in
subsequent months. The Respondent admits failing to pay the
Applicant's wages and alleges that it decided not to pay her because
she failed to resume her duties on 19th
March
2007 and subsequent days. In his answering affidavit the
Respondent's chairman Mathews Khumalo states that all petrol
attendants employed by the Respondent sign a drive way sheet and a
daily cashbook when clocking in and out of work. Since the Applicant
never signed these documents, the Respondent takes it as a failure
to resume duty justifying non-payment of wages on the "no work,
no pay" principle.
5.
The court referred the factual dispute, as to whether the Applicant
resumed duty at the filing station on 1st
March
2007 and subsequent dates, to oral evidence.
6.
The Applicant testified that she reported for work as instructed,
but she was not allocated any petrol pumps. She said that there were
9 pumps operating, and these had already been allocated to three
attendants. Since the driveway sheet records the pump readings, and
the cashbook records the cash received, in respect of the specific
pumps allocated to an attendant, the Applicant says she was unable
to complete these documents. Instead, she helped the other
attendants to man their pumps, and her cash takings were handed to
the attendants to be recorded in their cashbooks. The Applicant says
she reported for work every day, save that if she had to go to
hospital for a check-up - she was four months pregnant - she would
furnish a sick note. The Applicant says the chairman of the
Respondent was not present when she started working as filling
station attendant, but he came on subsequent days and found her
working.
7.
Under cross-examination the Applicant denied knowledge of a company
policy that attendants are not allowed to share pumps. She said in
practice the attendants assist each other. She also denied receiving
a letter dated 1st
April
2007 informing her that she would not be paid her wages unless she
resumed her duties and signed the driveway sheets and cashbook. She
also denied attending a meeting where she told the Respondents'
board that she was refusing to work because she was bitter about her
transfer. She denied that the chairman allocated pumps 1 and 9 to
her, and she said these pumps were being operated by one Mduduzi
Zulu.
8.
The Applicant called Thoko Dlamini as a witness. Thoko worked for
the Respondent at its filling station as a petrol attendant during
the period material to this case. She said the Applicant reported
for work on a regular basis every day, and she assisted the other
attendants in filling cars with fuel. She said the Applicant was not
allocated any pumps of her own, so she could not complete and sign
driveway sheets or the cashbook. Thoko admitted signing a
declaration that she would not share the pumps allocated to her with
other attendants, but she insisted that in practice they shared the
pumps and their employer was aware of this.
9.
The Respondent called Mathew Khumalo to testify. He said that the
Applicant showed up at work on 19th
March
2007 but she never did any work. He then asked Mduduzi Zulu, who had
just finished the morning shift, to operate the pumps which the
Applicant was supposed to use. On subsequent days the Applicant
never did any work, and at the end of April 2007 she disappeared
from work. She was eventually dismissed in early August 2007 for
fraud.
10.
A number of criticisms may be leveled at the evidence of Mathew
Khumalo. Firstly the version he gave in oral testimony is
significantly different to what he said in his affidavit. The
affidavit alleges that the Applicant did not resume her duties nor
explain her failure to do so. This is not the same as saying that
she reported for work but did not attend to the duties assigned to
her. Secondly, Khumalo's evidence was unconvincing on the question
whether he allocated specific pumps to the Applicant. He was evasive
whenever the issue was broached, and at no stage gave a clear
description of when and how the alleged allocation was made.
11.
The court also finds it most improbable that an employer would
observe its employee doing absolutely no work at the workplace but
take no disciplinary action against her. There is no evidence that
the letter dated 1st
April
2007 was ever served on the Applicant, and the evidence of Khumalo
was again evasive on this issue. The court has grave doubts as to
the authenticity of this letter, the contents of which do not tally
with the oral evidence of Khumalo.
12.
The Applicant's version is corroborated by the evidence of Thoko
Dlamini in all material respects.
13.
The Respondent bears the burden of proving on a balance of
probabilities that it was entitled to withhold the wages of its
employee because she did not carry out her duties. The Respondent
has failed to discharge this burden. If an employee reports to work
but her work performance is unsatisfactory, the employer may not
simply stop payment of her wages. The appropriate action is to give
the employee a direct written instruction to carry out her duties.
On failure to comply with this instruction, she may be suspended
without pay and disciplinary action instituted. In our finding,
however, the Applicant was carrying out her duties as a filling
station attendant and the Respondent a
fortiori had
no lawful reason to withhold her wages.
14.
The Applicant's counsel applied to amend Applicant's prayers to
include a claim for wages for June and July 2007. The Respondent's
counsel did not oppose the amendment, which we hereby grant.
15.
The Applicant was paid her wages for the period of suspension up to
15th
March
2007. She is entitled to be paid her wages for the rest of March
2007 and the period April - July 2007.
16.
Judgement is entered against the Respondent for payment of the sum
of E7776-00 with costs.
The
members agree.
PETER R. DUNSEITH
PRESIDENT
OF THE INDUSTRIAL COURT
