On the 30th of January, the employee resigned and the employer wanted to know if he could deduct the period of leave taken by the employee from any final monies due to the employee upon expiry of the notice period.
The answer unfortunately is no – because in this particular case, the employee never “took the leave” - he went on paid leave with the consent of the employer. The only agreement (verbal) between employer and employee was that the employer agreed to allow the employee to take 12 days paid leave, although he had not yet accrued any annual leave to his credit. There was no agreement entered into whereby the employee agreed that he would “repay” the employer for the leave granted should he resign from the employment before having accrued sufficient annual leave days to cover up the "advanced leave."
Thus, since there was no agreement to that effect, the employer cannot now come along with a new condition - namely to deduct money - to that agreement without placing himself in breach of the original agreement.
Employers must be careful to ensure that whenever they permit an employee to do something or to receive a benefit whereby the position may arise where the employee “owes” the employer something, then a proper written agreement should be entered into to provide for the reimbursement by the employee to the employer for whatever must be repaid