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Can I legally recover the costs of goods stolen/defrauded by employees?

Yes, you can but there are various different processes that you must follow. The first point is that you may not take the law into your own hands.  Legally, the employer may not make a deduction from the employees pay, other than in terms of section 32(4) of the BCEA –and this does not seem to contemplate payments on termination of employment, but rather continuing deductions whilst the employee remains in employment.

Despite the fact that this deduction is unlawful,many employers will, nevertheless, resort to it.

Broadly speaking, if you wish to recover your goods, or the value, you will need to mount a civil action against the employee, which may be cold comfort if they are men/women of straw.

 


However, certainly in the metal industry, and, we understand, as a provision in the Pension’s legislation, an employer may get restitution for loss which occurs through the employees dishonesty from funds the employee has in the pension/provident fund, if there is a successful criminal prosecution.

Finally, in the case of a criminal case, the magistrate can be asked for a restitution order as part of the proceedings in a criminal matter, and, may, subject to certain limitations, make such an award.

Of course, the employer may enter into a private civil agreement with the employee to pay the money back.  This is often done in return for the employer not reporting the matter to the police, not having an enquiry, but allowing the employee to resign or similar.  This is up to each employer, but if it is done, it should become the subject of a written and signed admission of debt.

What is probably not a good idea, is to keep the dishonest employee at work whilst he pays you back.

On the one hand, this may be tantamount to condonation, on the other; he may just steal a little more just to even out the balance!

Is any leave not taken accumulated or forfeited?

Certain leave is conditional upon a particular set of contingencies. If the event does not occur, the leave is not granted, and no payment is made.

The prime examples of this, insofar as the BCEA is concerned is sick leave, maternity leave (which is unpaid), family responsibility leave, and the ‘reasonable time off for union responsibilities’ provided by section 14 (5) of the LRA for shop stewards.

The rules which relate to these leaves are simple. If the contingency does not arise there is no entitlement to the leave. More importantly, the employer is entitled to reasonable proof that the contingency has occurred [BCEA Sections 23 and 27(5)]. There is no entitlement to accumulate, or to be paid out for the leave if the event triggering the leave does not occur.

The only leave which does accumulate and needs to be paid out is annual leave – this is the employees by right, accumulates at the rate of one day for every seventeen days worked (one hour for every seventeen), and is very clearly paid out at the termination of the employment in respect of leave in the current cycle of computation and execution, which is the 2 months immediately following the hiring or anniversary of hiring of the employee [BCEA 20(1) and (2)]. This much is clear.

Strictly speaking, if the employee does not terminate, the leave should not accumulate, as the employee is compelled to take the leave in the year (cycle) in which it occurs, or no later than six months later by mutual agreement [BCEA 20(4)]

What is not so clear is what happens if the leave is not taken completely in one cycle, and the employee enters the next cycle, where the same might happen, building up a large amount of leave which has been earned but not taken.

What happens next appears to be confused, and subject to varying interpretations, as well as myriad claims as to what court cases say.

Dealing with court cases first, let’s dispose of that right now.

One court decision does not make a precedent or an inflexible rule. If they did, every time there was a court case we would have to change our practice. And incidentally, arbitrator’s decisions bind no one at all. It is only when superior courts of appeal consistently rule in a set of circumstances that we can say there is fixed law. But in any event, there is always the issue of whether or not the facts of the case are the same. Also, bear in mind, judges are often wrong in their decisions, and this is particularly so in the case of labour.

It has always been my approach that I do not need a lawyer or a judge, who certainly has a lot less experience of the world of work than I have, and probably has less experience of what happens in the world of work, to tell me what is fair, equitable or just, let alone what is practicable and workable in the place of work. I am prepared to back my judgment anytime, and would suggest to you that you do the same – with one proviso. That you are scrupulously honest and do not give the interpretation that suits your purpose. Might I in this regard, refer you to the horse test. That which appears to be patently absurd to a sensible and normal human being, must be absurd. Quoting every day’s new court case is the realm of the charlatan, or the person who has no fundamental understanding of labour.

These are the rules of leave accumulation as I understand them, and commend them to you:

1. Unless there is a specific employment policy setting out the circumstances of leave accumulation, leave does accumulate. i.e. Leave not taken, must be paid out at the current rate of earnings.

2. You may limit the accumulation and carrying forward of leave in any manner that you wish, subject to the proviso that the reason that the employee does not take the leave is not at the employers instance. In other words, the employer has a duty that he must show he has fulfilled, that he has actively urged the employee to take the leave. Secondly, the employer should endure that the policy is in writing, and in this case, it is better if it is in writing.

You may hear all manner of arguments as to what the law actually is – obviously I support my own interpretation, but as yet we have no definitive interpretation – other than to remind you of Sections 2 and 3 of the BCEA and LRA respectively, which deal with the objectives of and the interpretation of the Acts. These make it clear as to how it is to be viewed.

What is meant by 'ambiguous employment?'

What is meant by the terms ‘ambiguous employment’, triangular employment’, ‘disguised employment’ and ‘atypical employment’?

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For almost as long as there has been labour legislation (around early Babylonian times if you really want to know), employers have been trying to find to find creative ways in which to turn employees into non-employees.

There is really nothing new about this, and the chances of your stumbling on a new and foolproof formula are slim indeed.The whole issue has been dealt with in Code of Good Practice, issues in GG no. 29445 Dated 1st December 2006.


The terms ‘non standard’, ‘triangular’ and disguised employment are all terms used to describe the various arrangements whereby employers seek to lighten their load.  Some are legitimate, some are not.  In the Code, the term ‘ambiguous employment’ is also used, as well as ‘atypical’ employment relationships.

At the heart of all of these attempts, and therefore at the heart of the definitions, is the motivation behind the attempt.  Employers attempt to enter into arrangements whereby work is done, but done on a basis that the relationship is not one of employment, for if there is no employment relationship, there is no labour law that applies, and the various protective requirements, which are seen to be both costly and in the employees favour, do not apply.  This is the purpose behind the attempt, and the law seeks to prevent this, as it is an attempt to escape from the purpose of legislation itself – namely to protect the employees.

It is, of course quite possible to have employment relationships which differ from the usual – permanent full time employment status, which are not unlawful, but wherever the employer alleges that there is no employment relationship, but that the person is rather an independent contractor, the law will get suspicious.

By and large, ‘non standard’ employment is the name given to all forms of employment which are not the usual nine to five arrangement, but which are nevertheless legitimate.  The best example of this being the labour obtained from a labour broker, which is quite lawful and legitimate (this, because there is an employment relationship – although it is with the labour broker see Section 198 of the LRA).  The employee is still protected by labour law, and the user of brokered labour is jointly and severally liable for substantive terms and conditions.  Thus, the employee is protected, and the employer has flexibility.  Everybody lives happily ever after.

Not so with disguised employment, where, as the name suggests the employer tries to hide the fact that this is an employment relationship.  The most usual manner being by way of a contract, which says “this is not an employment relationship”  Such contracts are absolutely worthless, and if you have bought one from a consultant, you have been the victim of a confidence trick.  As the Code of Good Practice itself says;

“The presumption applies regardless of the form of the contract……. The issue of the applicant’s employment status cannot be determined merely by reference either to the applicants obligations as stipulated in a contract, or a ‘label’ attached to the relationship in a contract.  Therefore, a statement in a contract that the applicant is not an employee, or is an independent contractor must not be taken as conclusive proof of the status of the applicant. “..   Code of Good Practice, Clause 16.

Disguised employment may take other forms, but is usually easily recognizable, as the employer seeks to hide or disguise the fact that there is an employment relationship.

Triangular employment usually refers to a situation where the employer uses another vehicle (often a company or a close corporation in his wife’s name), to house the employees), and claims, by this interpolation of a third vehicle, that they are not his employees.

Labour Law, has always been willing to ‘pierce the corporate veil’ as lawyers say, and to see through legal personalities, to find out what really lies behind them.  Whilst this would never wash in the world of the accountant, labour law takes a far more realistic approach, and sees things in terms of their substance, and not their form.

Of course, the use of a labour broker (‘temporary employment service’ as they are called in the LRA) is a species of triangular employment, but, since it is sanctioned by the LRA itself, it is acceptable, and this is understandable from the logic shown above.

 

What is meant by 'ambiguous employment?'

Cost awards - make them pay

Are more costs awards now being awarded against employees, consultants and unions that waste time with futile cases, or who are contemptuous of the process? The answer is no.  This despite changes.

Prior to the 2002 amendments of the LRA, a commissioner could only award costs if a party acted ‘frivolously and vexatiously’.   The 2002 amendments – obviously in the hope that this would encourage costs award, took away the onus for the party applying for costs to show cause, and gave the commissioner the power to make an award “according to the requirements of law and fairness”.  

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