LAWFUL DEDUCTIONS FROM WAGES OF AN EMPLOYEE Deductions from wages have become a subject of debate over time more particularly because of its nature being in monetary terms. Generally it is unlawful for an employer to make deductions from an employee’s wages without the employee’s consent but then there are exceptions to this rule. Section 56 (1) (a-e) of the Employment Act 1980 as amended provides a list of the exceptions wherein an employer may make deductions on wages of an employee. Such deductions will include tax, contributions to the Swaziland National Provident fund, the actual or estimated cost to the employer of any materials, clothing (other than protective clothing as is required by law or under the provisions of a collective agreement), tools and implements supplied by the employer to the employee at the latter’s written request and which are to be used by the employee in his occupation, any money advanced to the employee by the employer whether paid directly to the employee or to another person at the employee’s written request and, lastly, any amount paid to the employee in error as wages in excess of the amount due to him. The latter type of deduction is elaborated here below. Section 2 of the Employment Act of 1980 as amended define wages to mean remuneration or earnings including allowances, however designated or calculated, capable of being expressed in terms of money or fixed by mutual agreement or by law which are payable by an employer to an employee for work done or to be done under a contract of employment or for services rendered or to be rendered under such contract. From the permissible deductions to be made, it is obvious that any amount pad in error to an employee is indeed due to be recovered by the employer. However as clear as it seems employers should take caution when undertaking to deduct such monies. In Aaron Fakudze v The Principal Secretary – Ministry of Agriculture and Co-operatives, The Accountant General and the Attorney General IC Case No. 296/2004; the Applicant was promoted having gone through an interview. Apparently Applicant’s appointment was challenged and thus a court order was issued to the effect that Applicant’s appointment be withdrawn. Subsequent to that, Applicant received a letter from the Respondent notifying him that his payment will be stopped because he could not be paid as he was legally not employed. Applicant challenged the aforesaid employer’s letter and the Court ruled that he ought to be paid on a scale that is equivalent to the position he held prior to the promotion. For unclear reasons the employer did not comply with this order but continued to pay Applicant at the scale equivalent to the position he had been promoted to. Upon realization of such error, Respondent sought to correct it by effecting deductions on Applicant’s salary on grounds that such salary had been erroneously overpaid to him. The Court held that among other conditions, the Respondents must prove that the amount was transferred or paid by mistake and that the mistake must be one of fact and that it must be excusable. However in this case, the Respondents failed to prove that the amount to be deducted was paid to the Applicant in error. It was held that it was the slackness or studied passivity on the part of the Respondent, both in its failure to correct the overpayment at the earliest opportunity and its indifference towards the predicament of the Applicant. The extent of this slackness and indifference over a period of seventeen months, involving the career and remuneration of an employee, is so inexcusable that it does not warrant the protection of the law. The Court thus declared such conduct by the Respondent as an injustice to the Applicant. WRITTEN BY: NCAMSILE SHONGWE- CMO LEGAL
Posted on: Mon, 06 Oct 2014 10:44:18 +0000
Trending Topics
Recently Viewed Topics
© 2015