Answers to your burning workplace law questions

OVER the past couple of weeks, I have received a number of questions from you, the loyal readers of Workwise. These are questions that are quite common to most workplaces so I have decided to put them together in an article for you. My employer has overpaid me by a considerable amount but I have already used the money. Can my employer recover this money simply by deducting the entire amount off my account in one go or would they have to get me to sign a letter of consent before they do this? Am I within my rights to negotiate repayment terms?

In terms of the Basic Conditions of Employment Act 95 of 1997, as amended (“BCEA”), an employer is only permitted to make deductions from an employee’s salary according to the procedure as set out in Section 34:

“Ordinarily an employer is not entitled to request that an employee repay remuneration however, the exception to this is where an employer has made an overpayment resulting from an error in calculating an employee’s remuneration.” [See section 34 (5)(a)]

This means that the employer is entitled to make a deduction from the employee’s salary when the former has made an overpayment because of an error in calculating an employee’s remuneration. However, as the overpayment mentioned in this question was not owing to the employee’s fault or negligence the employer cannot simply make any deductions without negotiating the terms of repayment with the employee.

If there has been no agreement, the employer can look to recover the monies by way of legal processes relating to unjustified enrichment. How much can my employer deduct from my salary at any one time in a month? Do I have to agree to these deductions? What can they deduct for? Should these deductions have been outlined in my employment contract? If the company e-mailed a letter to all employees stating that we would have to cover the shortfall in vehicle insurance if a company car is stolen while it was signed out in our name, is this legal?

● How much can my employer deduct from my salary in one month? Section 34 says that where the deduction is because of any loss or damages the employer may not deduct more than 25% of the employee’s remuneration. For items that are agreed on by the employer and employee there is no limitation. An example of this would be the repayment of a loan. ● Do I have to agree to these deductions? Deductions must be arrived at through agreement or by following a fair procedure. ● What can employers make deductions for? An employer is permitted to make any such deductions as required by statute (ie UIF), a collective agreement, order of court or arbitration award as well as where the employee has consented to any other such deduction. ● Should the deductions have been outlined in the employment contract? Usually the employer does make provision for deductions for loss or damages in the employment contract. In this document, they also confirm statutory deductions to be made. However, this is not required. ● Is an employer permitted to require an employee to cover a shortfall in vehicle insurance if a company car is stolen while signed out by an employee? The employer would need to prove that the loss (shortfall) was because of the employee’s fault or negligence. A letter stating, upfront, that an employee is responsible for an insurance shortfall should the company vehicle be stolen while signed out by that person would not be sufficient for them to recover the shortfall. The process in terms of Section 34 would still need to be followed in each instance.

Jonathan Goldberg is CEO of Global Business Solutions

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