Deducting money from my wages

Question:

I work in a warehouse with five other packers. My employer has accused us of stealing some of the stock. He said that unless we tell him in 5 working days who is responsible for the theft, he will deduct R50 a week from our wages until he has made up his loss. Is this legal?

Answer:

The Basic Conditions of Employment Act (BCEA) allows your employer to make certain deductions from your wages to cover debt and damages. However, before the employer can make such deductions you have to agree to the deduction. If you are not responsible for the employer’s losses and do not know who the thief is, the employer may not deduct any money from your wages.   If the employer deducts R50 a week from your wages without your permission and when you are not responsible for his losses, then he will be in breach of the BCEA.

Withdrawing a resignation

Question:

My secretary resigned yesterday after I told her that she must attend a disciplinary hearing because she failed to diarise a very important meeting. This wasn’t the first time that she didn’t update my diary. This morning she said that she wants to withdraw her resignation. I refused. She said she will take me to the CCMA. Can the CCMA tell me to allow her to withdraw her resignation?

Answer:

No. Your employee chose to terminate her employment contract by resigning. Resignation is a unilateral act by the employee and does not require your consent. Once the employee resigns the contract of employment terminates and it can only be revived if you allow her to withdraw her resignation.

Excessive sick leave

Question:

I own a small company that does deliveries 5 days a week. I employed a new delivery driver five months ago. He is a very good driver, but since he started working for me, he has already taken 10 days’ sick leave. When I told him that I will no longer pay him when he is not at work, he said he is allowed by law to take 30 days’ paid sick leave a year. Where can I find out if that is true?

Answer:

You will find your answer in section 22 of the Basic Conditions of Employment Act (BCEA).

Unfortunately for your driver the law is against him. As he has not been employed for a period of 6 months yet his entitlement to paid sick leave is very limited.

The BCEA says that workers are only entitled to 1 day’s paid sick leave for every 26 days worked during the first 6 months of employment. Your employee’s understanding of the law is not correct.

Employer refuses to pay my witnesses

Question:

I went to the CCMA after I was unfairly dismissed.  I have asked two of my colleagues to give evidence at my arbitration, but because my old employer told them that they must take unpaid leave to do that, they don’t want to come.  Is that fair?

Answer:

All employees who have been dismissed may go to the CCMA where the dismissal may be challenged.  Calling witnesses to testify is part of the dispute resolution process that started with the disciplinary hearing at the workplace. The employer must release your two colleagues to testify and can’t refuse to pay them for the time that they attend the arbitration for the specific purpose of giving evidence.  Note that they can only be excused from work on the day and for the time that they are required to testify.

Complaints about body odour

Question:

We employed a new salesperson about a month ago.  His desk is in an open plan office that he shares with 3 other employees.  He goes for a run during his lunch hour.  All his fellow employees have lodged a collective grievance saying that they can’t share office space with him when he returns after lunch because of his body odour.  They have demanded that we either move him or install a shower at the office, failing which we must dismiss him.   They did not approach him before lodging their grievance.  We do not have any other office space and can’t install shower facilities. This is a very sensitive matter and I am not sure how I should approach it.

Answer:

You must speak to him privately, but directly.  He might be able to arrange to have a shower elsewhere, before returning to work.  Should you not be able to resolve the issue, you will be faced with a situation where he is incompatible with his colleagues, and this incompatibility may have a direct impact on their ability to perform. There are a number of judgments that have found that a dismissal at the instance of a third party (his fellow employees) can be fair in clearly defined circumstances, and where the employee was neither a poor performer nor had he committed any misconduct.

Disclaimer

In answering these frequently asked questions we merely provide basic information.  These answers must not be understood to constitute legal advice or opinion and neither Aequitate nor its directors will be held liable for any reliance hereon

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