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In the matter between Malumane vs the Mpumalanga Department of Health (Lex Info 11 June 2026. High Court case number 2026-095555) Dr Malumane was both employed by a provincial hospital and a union official. After he had absented himself without leave to carry out his union duties the employer deducted from his pay the rand equivalent of his days not worked.
In Court it was established that Dr Malumane had indeed been absent without leave, and the employer argued that the deduction had therefore been merited. Despite this, the Court ordered the employer to repay all the money to Dr Malumane plus interest. This was not due to the employee’s reason for being absent but purely because the deduction had breached section 34 of the BCEA that prohibits pay deductions made without the employee’s agreement unless the law permits such deduction.
Question: Ought the Court to have accepted that both common law and the principle of unjust enrichment justified the pay deduction? If not, how is it fair and rational for an employee to be paid in full for a period of unauthorized absence?
The Court misconstrued the issue as a deduction. This issue is quite simply a case of unauthorised absence of where the principle of “No work no pay” applies. If an employee is absent from work, they are only entitled to be paid if they are sick, if they are on authorised annual leave or if they are on family compassionate leave.
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