Recent Worklaw responses to subscriber helpline queries

What charge/s can a company prefer against an employee who earns R13 100.00 per month and the pay office commits a mistake of paying him R131 000.00? He gets this payment for 4 months without coming forward.
When this is discovered he claims that he thought that he was underpaid all along and that as soon as the difference was corrected he would be paid at the right level.

Worklaw Response:

The similarities between this case and the LC judgement in Theewaterskloof Municipality v SALGBC (Western Cape) & others are remarkable - find this case under Worklaw's case law section and discussed in our August 2010 newsletter (find this under the newsletter archives). In that case the LC upheld the dismissal of a long serving senior manager with a clean record, despite the fact that the manager did not hide the fact that he had been overpaid for 2 months (worth R7 000).

The facts of your case seem much more serious. The employee has been paid at 10 times his normal rate, resulting in a monthly overpayment of R117 900 for 4 months - ie overpaid by R471 600 in total!! This is the equivalent of 36 months' salary. It appears from what you say that he attempted to hide this from his employer. His version sounds to us overwhelmingly improbable.

I suggest the following charges may be appropriate:

    "Dishonesty, in that he -
  1. failed to inform the company of having been overpaid by R471 600 over a 4 month period; and
  2. misappropriated the above funds, in that he retained and failed to return them timeously."
Whilst this is not very helpful in this case, any deductions from his salary have to comply with s.34 of the BCEA.

We also mention it appears that serious negligence appears to have been committed by someone in overpaying him R471 600 over a 4 month period without picking up the problem earlier.

Bruce Robertson
The issue is whether, even if committed outside working hours and off company premises, the misconduct seriously affects the employment relationship. If it does, the employer is justified in taking disciplinary action. The facts you outline suggest that the incident was sufficiently work related to justify disciplinary action. The artisan assaulted his supervisor at a work related function.
Whether this is a dismissable offence will be influenced by factors such as the severity of the assault, who caused the altercation, what they were fighting about, any remorse shown afterwards, and how the company has treated similar cases in the past. Subject to adverse evidence on those issues, it sounds like dismissal may be justified but we dont know all the facts to really comment on that.
The cases below, which you will find on Worklaw, may help you.

Foschini Group v CCMA & others(LC) and SACTWU v H C Lee(CCMA) which found that even where an assault takes place away from the workplace, it can impact on work relationships in a damaging way, justifying dismissal.

IMATU obo Damane v City of Cape Town(SALGBC) which found that dishonesty committed outside the workplace may make continued employment intolerable.

Saaiman & another v de Beers(IC)which found that
where criminal activity takes place outside the workplace, employers can discipline the employee, if the criminal activity has a detrimental effect on the employment relationship.

posted on: Tuesday, August 16, 2013 - 2:04:11 PM

Employees were allowed 1 hour earlier to leave work to attend farewell function of their collegue who was resigning and this was in terms of the Company's Social Functions Policy.The fuction was held at local Pup. During the function an employee (artisan) assaulted his supervisor. He was since dismissed and refered the matter to CCMA. At CCMA he is contending the following: That the incident happened out of the work place and outside working hours, that the company have no jurisdiction on the outside matter and that dismissal for such matter has not been consistently applied. Your take on this one and any previous case law.

posted on: Tuesday, July 30, 2013 - 10:23:10 AM

Hi, We have 8 employees who are not happy with their job grading. The parties agreed to refer their jobs for evaluation. The evaluation exercise confirmed that their current job grades are correct.

Now the employees are not happy, and they have referred their dispute to the CCMA under the guise of unfair labour practice.

My understanding of their nature of the dispute is that it is a "dispute of interest", and hence the CCMA does not have a jurisdiction to arbitrate the matter. The dispute is best suited for collective bargaining, as the employees wants to create a new right, as opposed to having a right that is in existence.

Your comment on the matter will be appreaciated, and reference to case law will be helpful, as i intend to file an application disputing that the CCMA has a jurisdiction, as this is not a dispute of right.

posted on: Tuesday, June 18, 2013 - 9:46:17 AM

Norman, your first option is not available, as per section 34 of the BCEA. See the first two comments. Also, it's not pension fund rules, but the Pension Fund Act that does not allow any deductions (other than property-related) from the pension pay out, unless there is a court order.

If a decision to sue is made, then the pension fund can be asked to hold the payment on the basis of pending court action.

posted on: Thursday, November 01, 2012 - 6:26:16 PM

There are two options in dealing with this matter.The first one is to withold monies owed to the employee (e.g monthly wage of that month,leave pay and pension fund payout) the danger of the pensin payout is that if the pension/provident fund rules does not cater for that. The second option is to go a civil route in reclaiming the overpayment.In addition the employer must seriously look at his/her payroll system whether there are payroll controls in place such as that should there be a glaring figure in salary payment this get investigated and that final salary bundle that needs to send through the bank is signed off by senior employees. Also there can be a cross referenced of each other payroll employee when come to time input and dummy payslip before a final payslip. Lastly the employee who has committed this gross negligence corrective action to be taken. I hope this will help.

posted on: Wednesday, October 24, 2012 - 11:37:00 AM

Bruce Robertson
Correct, Chillies - thats why we prefaced our views in that regard with...."this is not very helpful in this case".....
The employer could also sue the (ex)employee, but we suggest should consider the employee's ability to pay before doing so.
The bottom line in this case is that someone must have been horribly negligent in allowing the over-payment to take palce.

posted on: Wednesday, June 19, 2012 - 12:25:51 PM

Chillies Mfeka
If you say deductions have to be in terms of s.34 of the BCEA, irt doesnt help the employer in this case much because the deductions cant exceed 25% of the employee's remuneration. So the maximum deduction in this case will be R3275, which means it would take the employee 144 months to repay it.... and he has been dismissed anyway???!!!!

posted on: Monday, June 11, 2012 - 12:22:26 PM
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