The CCMA is often faced with matters where employees claim that their employer has made certain unlawful deductions from their salaries. This article seeks to unpack and clarify the current position in our law regarding deductions by an employer and the jurisdiction of the CCMA to hear such disputes.
Until recently, the CCMA dealt with and heard unlawful deduction disputes under Section 73A of the Basic Conditions of Employment Act (BCEA). This was done by setting a hearing down as an unobjected Con/Arb process, and the applicant had the onus or burden of proof to prove their case.
Section 34 of the CCMA regulates deductions relating to an employee's salary and guides both the employer and employee regarding what monies may be deducted and under which circumstances.
Section 34 reads as follows:
"An employer may not make any deduction from an employee's remuneration unless—
(1)(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 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;
(d) and 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.
(3) A deduction in terms of subsection(1)(a) in respect of any goods purchased by the employee must specify the nature and quantity of the goods.
(4) An employer who deducts an amount from an employee's remuneration in terms of subsection (1) for payment to another person must pay the amount to the person in accordance with the time period and other requirements specified in the agreement. Law. Court order or arbitration award.
(5) An employer may not require or permit an employee to
(a) repay any remuneration except for overpayments previously made by the employer resulting from an error in calculating the employee's remuneration or
(b) acknowledge receipt of an amount greater than the remuneration actually received."
An employer must consult this section before making any deductions from an employee's salary.
It must be noted that the CCMA no longer enjoys jurisdiction to hear disputes relating to employee deductions.
Therefore, if an employee files a case at the CCMA regarding a deduction under Section 34(1), the employer should raise a point in limine at the start of the arbitration stating that the CCMA lacks Jurisdiction to hear the dispute.
This position was confirmed in the Labour Court judgement of O'Reilly v CCMA and Others JR2395/19 (LC), where the Court had to determine whether the CCMA had jurisdiction to deal with disputes relating to Section 34 deductions.
The Court held that the claims in terms of the BCEA are regulated by Section 77 of the BCEA. Section 77 confers exclusive jurisdiction on the Labour Court to determine all disputes that fall under the Act, except where the Act provides otherwise. The Court held further that no provision in the Basic Conditions of Employment Act indicates that the CCMA has jurisdiction to determine a dispute in relation to Section 34(1), thus stating that the CCMA does not have jurisdiction in these matters.
Based on the above, we can conclude that the CCMA may only adjudicate matters involving statutory monies owed to an Applicant under Section 73A and any amounts that the employer is obligated to pay under the BCEA, but not deductions disputes relating to Section 34(1) of the BCEA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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