Employee salary deductions
16 January 2023 17:00 by Merilyn Kader
In Gqithekhaya and Others v Amathole District Municipality  4 All SA 106 (ECLD), an employee has no legal entitlement to be remunerated and should in principle pay back the money if he was paid while participating in an unlawful strike.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Labour and Employment - Permissibility of deductions from employees’ salaries: The applicants in Gqithekhaya and Others v Amathole District Municipality  4 All SA 106 (ECLD) participated in an unprotected strike, they continued to receive their ordinary remuneration. Five months later, the respondent (the employer) decided to make deductions against their salaries over a two-month period to give effect to its ‘no-work no-pay’ rule.
Seeking interdictory relief, the applicants claimed they were not afforded any opportunity to show cause why the deductions should not be made or to make representations concerning how the recovery strategy was to be implemented. The applicants obtained an interim interdict preventing the employer from making the deductions and to pay back money deducted. The applicants challenged the lawfulness of the respondent’s decisions and sought declaratory relief. They contended that the respondent had not followed the provisions of s 34 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) in implementing the recovery strategy, alternatively s 67(3) of the Labour Relations Act 66 of 1995. Section 34 deals with deductions that are lawfully permissible against the remuneration of employees.
It was held that an employee has no legal entitlement to be remunerated and should in principle pay back the money if he was paid for his cessation in services rendered while participating in an unlawful strike.
The court held further that the common law doctrine of set-off would only be applicable where the employee had admitted the debt and payment terms, or if a judgment debt already existed, as provided for in s 34(1) because only then could it be said that the applicants and the respondent were mutually indebted to each other.
Merilyn Rowena Kader
Legal Editor at LexisNexis