Health department manager overpaid by R800‚000 takes on government after being told to repay the amount - and wins

Imagine being accidently overpaid for five years‚ oblivious to the error until a letter arrives explaining the mistake and demanding repayment of almost R800‚000.

Itunu Ubogu‚ a mother of three who holds a senior position at the Gauteng Department of Health‚ knows exactly how it feels.

After the letter came another surprise – her salary slip one month later showed a deduction of more than R33‚000 towards settling the debt. This was followed by more bad news‚ her annual bonus would be withheld.

Ubogu‚ who had been CEO of Tshwane District Hospital in Pretoria in 2006‚ was transferred to the Charlotte Maxeke Johannesburg Academic Hospital in 2010 as a clinical manager to bolster health care delivery there. Her full job title was Clinical Manager: Allied.

In July 2010 the department split the post of clinical manager into two designations‚ being Clinical Manager: Medical and Clinical Manager: Allied. Ubogu was then recorded by the department as being a medical clinical manager – by mistake – which was the higher paying of the two positions.

It took the department five years to discover the error. A letter was sent to Ubogu in September 2015 explaining how‚ in the process of her redeployment‚ “you were instead‚ erroneously appointed”. She was told when she was transferred to Charlotte Maxeke she should actually have been appointed to the post of Deputy Director: Therapeutic and Medical Support Services on a lower salary.

She was advised that the amount owed by her to the department was R794‚014.

First she objected to what was effectively a demotion with help from her union‚ the Public Servants Association of South Africa.

Then she discovered the department had deducted R33‚705 off her salary in a single month last year. She and the union objected to the deduction as it was their view that it was made without her knowledge and consent.

No further deductions were made during the next two months but then she was told that her annual bonus would not be paid out – apparently to offset her “debt”.

This was the final straw and Ubogu turned for help to the Labour Court in Johannesburg‚ arguing that current legislation allowing the state to deduct money paid wrongfully to employees was unconstitutional.

The department of health argued that the remuneration Ubogu received from July 2010 was not due to her as she did not perform those functions.

Judge Edwin Tlhotlhalemaje sided with Ubogu.

The Labour Court has now declared as unconstitutional a section of the Public Service Act which allows for the state to deduct payments wrongfully made to employees in the absence of any due process or agreement with an employee.

The court has now altered part of section 38 of the Public Service Act to conform with the Constitution. It now provides for deductions - after an employee has agreed to them‚ and if there is no agreement‚ by way of legal proceedings.

It remains unclear whether the department will continue in its quest to recover the rest of the money. Ubogu’s union had earlier wanted the court to decide whether the extra salary sum‚ having been owed for more than three years‚ had prescribed and no longer needed to be paid.

Ubogu said on Thursday that she did not know whether the department still expected her to pay the remainder.

Public Service Association provincial manager in Gauteng‚ Monica Venter‚ said there were a number of its members who were affected by administrative salary mistakes who were expected to repay enormous amounts.

This‚ she said‚ caused hardship to employees.

Ubogu’s legal representative said the effect of the judgment was that the question of her liability and any repayment plan had to be by agreement or court order.

"If the state decides to pursue the question of her alleged overpayment then we will oppose that‚" said Charmane Nel‚ in-house counsel at MacGregor Erasmus Attorneys.