In terms of section 34(1) of the BCEA, an employer is not allowed to make deductions from an employee’s remuneration, subject to certain exceptions.

The Act states that:

1. an employer may not make any deduction from an employee’s remuneration unless –

(a) Subject to subsection (2) the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or

(b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

2. A deduction in terms of subsection (1)(a) may be made to reimburse an employer for loss or damage only if –

(a) the loss or damage occurred in the course of employment and was due to the fault of the employee;

(b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made;

(c) the total amount of the debt does not exceed the actual amount of the loss or damage; and

(d) the total deductions from the employee’s remuneration in terms of this subsection do not exceed one-quarter of the employee’s remuneration in money.’

In the matter of Siwela v City of Tshwane Metropolitan Municipality and Others (J38/18) [2020] ZALCJHB 251 the employer accused the employee of being absent from work without completing a leave form and obtaining approval. The employer continued to implement and effect deductions in the total sum of R43 183. 16. The employee made written representations to the employer and requested that the money be reversed as it was irregular and unlawful and that the employer had no right to dock her money without proper procedure or following the provisions of the BCEA. The matter ended up at Labour Court. The employee gave a detailed explanation of her whereabouts during the disputed dates and produced evidence.

The Court found that the allegations that Ms. Siwela took unauthorised leave, is a disciplinary issue and, as such, had to be determined objectively. The Court ordered the employer to pay the employee the amount deducted from her salary because the deduction contravened the provisions of section 34(1) and (2) of the BCEA and was accordingly unlawful.

Conclusion:

Therefore, the provisions of the BCEA should be observed when making deductions from an employee’s remuneration, other than statutory deductions.  It is also wise to include a contractual term upon employment (as this is an agreement and would satisfy the BCEA provisions) indicating that the employee consents to deductions in cases where the employer has incurred losses due to misconduct or negligence.

It should however be kept in mind that before such deduction could be made that the employee should be given an opportunity to make representations on why the deductions should not be made, and that the further provisions as per subsections 2(c) and (d) of the BCEA be observed. Finally employers should remember that deductions cannot be made to the extent that the employer is enriched due to the employees conduct, as this is deemed as illegal.