In cases of misconduct, your employer has a claim to your benefit

De le Ray says the Act seeks to protect an employer’s right to recover losses caused by the misconduct of an employee. However, this is not an absolute right.

The requirements for a deduction by your employer from your retirement fund are:

An amount must be due by a member of a fund to his or her employer;

The amount must be due at the date of retirement or the date on which the member ceases to be a member of the fund;

The amount must be in respect of compensation payable to the employer;

The compensation must be in respect of any damage caused by the member (former employee) to the employer;

The damage caused to the employer must be by reason of theft, dishonesty, fraud or misconduct by the member; and

The member must have furnished a written admission of liability to the employer in respect of the compensation for the damages caused to the employer; or the employer must have obtained a court judgment in respect of the compensation.

In the first of the two complaints upheld by the adjudicator, the complainant was dismissed from his job following an incident involving the theft of about R188 000. The complainant did not dispute the fairness of the dismissal at a hearing of the Commission for Conciliation, Mediation and Arbitration, and criminal charges were laid against him by the employer. However, the criminal case was closed in August 2008 due to insufficient evidence.

CASE CLOSED

De la Rey says in her ruling that there are no facts to show that the employer subsequently attempted to re-open the criminal case against the complainant or that it had instituted civil proceedings against him.

She accepts that an employer has a right to withhold a member’s benefit pending the finalisation of legal proceedings that allege theft, fraud or misconduct. But in this complaint there are no pending proceedings.

The fund’s decision to withhold the member’s benefit was set aside and the respondent was ordered to pay the complainant’s withdrawal benefit within 14 days of the determination.

In the second case, conditionally upheld by the adjudicator, the complainant had his retirement benefit withheld because his application did not reflect his tax number. The complainant was later advised that the retirement benefit was being withheld because civil action for R75 107 was pending against the former member.

De la Rey found that the complainant had not admitted liability for the amount in writing and no court judgment had been obtained by the employer. Further, there was no evidence to show that any further steps were taken by the employer besides issuing a summons in May 2007 against the complainant.

The employer was ordered to provide proof of the steps taken to obtain a civil judgment against the complainant within seven days of the determination. Failing this, the fund was ordered to pay the complainant his withdrawal benefit together with interest calculated at a rate of 15.5 percent a year from March 2007 to the date of payment. – Bruce Cameron