When an employee causes damage to the property of the employer or the employee causes the employer to suffer a loss, the employer might find themselves in a position where they would not only want to take disciplinary action against the employee, but also recover the loss or damage suffered.
This then begs the question should an employer do both, will this amount to double jeopardy and would an employee not effectively be punished twice for the same misconduct?
In terms of Section 34 (2) of the Basic Conditions of Employment 75 of 1997 Act a deduction may be made to reimburse an employer for damage or loss if: –
- The loss or damage occurred in the course of employment and was due to the fault of the employee;
- The employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made;
- The total amount of the debt does not exceed the actual amount of loss or damage; and
- The total deductions from the employee’s remuneration do not exceed one-quarter of the employee’s remuneration in money
Should the employer only be entitled to do the one or the other, the employer would be prejudiced in that they would have to choose which is more important, consistently applying the Company’s disciplinary code or recovering the loss or damage.
Luckily an employer does not need to make such a choice as they are entitled to take the required disciplinary action and to recover any loss or damage, provided there is compliance with Section 34 of the Basic Conditions of Employment Act.
The above will not cause an employee to be punished twice as the deduction will not amount to a disciplinary sanction, but will then be regarded as a lawful deduction.
Employers are therefore encouraged to do a thorough investigation into loss or damage suffered, especially when specific employees are involved;
Employers are further advised to ensure, once their investigation is completed, that no more than 25 % of an employee’s remuneration is deducted for the loss or damage at once.
Dispute Resolution Official – PE