Worker fights state deductions without notice

Public sector workers would be unburdened from financial distress if the Constitutional Court invalidated a section of the Public Service Act that allowed the state to deduct incorrect payments from employees accounts without prior notice.

This is the argument put forward by the Public Service Association before the highest court in the country.

One of the association’s members petitioned the court to have the section reformulated to make it mandatory for the state to consult workers and reach an agreement on repayments before deductions are made.

Arguments from both sides were heard on Thursday.

Olufunmilayo Ubogu, the applicant in this particular case, challenged the constitutionality of section 38(2)(b)(i) of the act successfully in the Labour Court, which ruled in his favour in 2016.

Ubogu, a clinical manager at Charlotte Maxeke Academic Hospital, was overpaid about R794,000 after her pay was mistakenly hiked, according to the Gauteng health department.

The department only realised its error three years later and in 2015, imposed salary deductions to recover the money and unilaterally debited her account three times until she declared a dispute with it. Ubogu’s struggle is a common occurrence in the public service, according to her attorney, Charmane Nel.

Nel argued that the current provision saw the state “selfhelp” despite the existence of other laws, including the Labour Relations Act, protecting all workers from this.

“If we win, it will force the state to be more efficient in its administrations so that these things don’t happen, and if there is a dispute, to go and first get a court to supervise the recovery and not just allow them to grab the money,” Nel said.

Arguing for the state, advocate Tembeka Ngcukaitobi said it was precisely because of other provisions that the government is opposing that the section in question is unconstitutional.

“Section 38, if it existed in a vacuum, we would find it hard to justify it.

“But because it exists in an area legislatively regulated by employment law, the question is whether employment law provides sufficient protections,” said Ngcukaitobi.

The state also submitted that other measures, including the Public Finance Management Act, were able to ensure that recovery mechanisms are instituted in an effective and appropriate manner in the collection of all monies due to the state.

Judgment was reserved.