Please note that this pertains to South African Labour Relations, the Basic Conditions of Employment Act and Best Practice requirements.
Did you know that there are certain circumstances when you can actually get remuneration from an employee’s pension payout when they steal from you? I must admit that until I did the research, I didn’t know that! Here’s the story.
Mike owns a retail store in a busy mall and George is one of his salespersons. Mike has been noticing that stock is slowly but surely going missing and his level of shrinkage is growing month by month. Mike implements added procedures such as daily stock counts in an effort to sort the problem out. As luck would have it, Mike catches George red-handed (so to speak) as Mike watches, he sees George hide an expensive tie inside of his shirt and then walk out of the door to be met by someone down the corridor. Mike follows at a discreet distance and watches as George removes the tie from his shirt and hands it to the other fellow. As the fellow hands George money, Mike makes his presence known and catches George before he can run.
George is embarrassed at being caught and admits to having been stealing for a long time. Under Mike’s watchful eye, George writes out the incident report about “how” he stole the tie. Mike calls in the police and again insists that George make a statement about what he has stolen and George admits to stealing stock to the value of around R20 000 – this is documented. Once the statement has been written, signed and witnessed, Mike gets a certified copy and is given a case number.
Mike then holds a disciplinary in “Absentia” (remember George is locked up), George is found guilty of theft and dishonesty and he is dismissed. Although George in this instance is not entitled to notice pay, he is still entitled to any leave pay that may be owing to him and also there is his pension fund. Mike pays all the outstanding leave pay and monthly pay (up to and including the last day that George worked for the month) into George’s account and notifies the Pension Fund administrators that George is no longer employed by the company and that they should calculate his pension payout.
Mike also advises the Pension Fund Administrators that George has been dishonest and that he has admitted to the theft and gives them a copy of the admission of guilt. The Pension Fund Administrators are obliged to give Mike R20 000 out of George’s pension payout, prior to them paying the balance out to George.
Mike has followed the correct procedures.
The law you see is actually quite fair as long as the correct procedures are followed.
Be aware though that had Mike not “driven the process” himself, the Administrators would not have just automatically paid him out, out of George’s pension payout – Mike had to advise them that this is what he was entitled to and give them the documentary evidence that they required.
Please make sure though that you have a signed copy of admission of guilt from the employee, stating that they have been dishonest, or that they have stolen, or that they have committed fraud or that the loss experienced by the company was a direct result of their “misconduct”. Make sure that you get some sort of value on what has been “lost” or that there is a judgment against them for the loss that you have incurred.
Don’t try and do this if the charge against the employee is merely one of “negligence” – there has to be an actual loss and the loss has to be a result of dishonesty and oh yes, an unsigned e-mail or an “SMS” is not sufficient proof. Make sure that you get the errant employee’s signature on the document and make sure that they have admitted to the theft/fraud. This will ensure that their “intent” was clear and that you then get your money back.