‘Laws are here to protect employees whilst employers are left to suffer’ is a belief held by many an employer. This belief, however, is not always the case. An employer’s remedy to discipline an employee is well-founded, but what numerous employers remain oblivious to are their other remedies founded in law. As stated by Waglay AJP in Randwater, “The BCEA was designed to promote the right to fair labour practice which is available to everyone- employees and employers alike.”
Beyond disciplinary action, employers possess remedies in the realms of criminal law, civil law and labour law. The frequency of commercial crimes continue to rise in South Africa, and employers are fully within their rights to simultaneously institute disciplinary action and criminal action against an employee suspected to have committed an act of dishonesty, such as but not limited to theft or fraud. Beyond this, if an employer can establish and prove the damages which they have suffered due to the act of dishonesty or negligence by the employee, the employer may wish to exercise his/her right to reclaim the lost monies from the employee, together with interest.
Should the employee in these circumstances be the holder of a provident or pension fund, the Pension Funds Act 24 of 1956 (PFA) entitles the employer to attach the value of the employee’s fund in order to satisfy a claim for damages. Section 37D 1(b)(ii) of the PFA permits a provident or pension fund to deduct any monies from the employee’s fund in respect of any damage caused to the employer by reason of any theft, dishonesty, fraud or misconduct by the employee where the employee has admitted liability in writing to the employer or where a judgment has been obtained against the employee in any competent court.
Employers have substantial recourse to maintain fairness in labour practice. Any act of unfair practice by an employee will attract a remedy for an employer to exercise. Employers are encouraged to enforce their rights and to maintain the delicate balance of rights and responsibilities which accrue to both employers and employees.
Should you have any queries concerning your rights, you are welcome to contact CEO for expert legal advice.
Article by: Avishkar Singh
Senior Dispute Resolution Official – Durban