Deductions off salary illegal?

Uraeus

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May 26, 2010
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So here is the dilemma:

Take for example that you are getting paid RX per month (Rx per hour), and a more senior person doing the same job gets paid RY (Ry per hour) (with Y > X) for doing the same thing.

Suppose that you request to work an hour less a week and the more senior person
will work an hour more per week. With this would be obvious salary decreases/increases, but this is how I would see it being done in a normal company:

1) Your salary will have a deduction of (4 * Rx) per month since you didnt work those 4 hours.
2) The other employee will get an increase for working more therefore would see (4 * Ry) more per month.

Here is something which is foreign (and Illegal in my mind):
Would it be your responsibility to pay the difference of 4 * (y - x) to the employer now that you are working less even though you are getting (4 * Rx ) less per month, or would that be the company's cost alone?

In my mind the latter case should apply.

In a nutshell, and using an example.
Say Bob works for R100 per hour at 45 hours/week and sexy Susan is earning 150 per hour at 35 hours per week.

Bob's current 45 hour/week salary = 45 * 4 * 100 = R18000

Bob now requests to work 44 hours per week, so in my mind he should earn:
44 * 100 * 4 = R17600

The company now has to pay Susan an extra 150 * 4 = 600 per month.

Should the difference in what Susan and Bob get paid, be taken from Bob, i.e.
Should Bob then get a salary of 17600 - (600 - 400) = 17400.

I have a friend facing an instance of this, where they are being pressured into signing a contract stating this, and I have told them not to sign yet.

Are there any laws/regulations which one can turn to when being faced by instances like these? To me it is trivial,

i.e. Everyone earns at a different rate and if someone chooses not to work and the company has to pay some else one more, then that is an expense the company needs to pay and not the person that couldn't work!
 

ponder

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I don't quite follow your logic.

If the standard work week is 42 hrs (or whatever) the employee working less hours will earn less. The other employee sticking to the standard hours will earn more by default and senior employees also earn more. Maybe I'm reading this wrong?
 

Uraeus

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270
Your logic is right, but this case doesn't make sense, thus the question :)

The more you work, the more you get paid (In the case you get paid for each hour).

In the case which I have given above, one employee chooses to work an hour less per week. The company then has to
get someone else who gets paid more to do the same job, so this is more expense to the company. Should that expense come
out of the first employees pocket?

Since now the other employee will get tasked to do the same job, but will be paid at a rate higher than what the first employee
was getting, the company (In this case) is deducting from the original salary the full cost to company to hire that other person.

This is all under the assumption that no one can be found to do the job for the same rate or cheaper.

Edit:
I am trying to get confirmation that this practice is illegal and wrong, since it shouldn't affect the first guy whatever some one else gets paid.
 
Last edited:

Keeper

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tell them this. the first employee has got nothing to do with the second employee.

if 2 people did the same job, person A got paid R500 per day, and person B got R100 a day, you telling me that if Person A worked 4 days a week and Person B worked the extra day (6 days a week), that person A would only lose R100 off his pay and Person B would gain and extra R500 (the same he gets for 5 days, he now makes in 1 day???)

or, if it was swapped around the higher paid guy would only get an extra R100, and person B would lose R500? that would mean he loses his whole paycheck!
(Actually, since he now works 4 days, which would be R400, he would OWE the company R100 per week for working there)


no, salaries cannot be mixed like this. lol.

Others are also not even supposed to know what pay you get, it's unethical.
 

IceDreama

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Jan 10, 2009
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408
Look dude, I don't understand your scenario and I don't understand all these replies but here is my opinion from a legal perspective.

I am not a labour broker so you can't take my word on this or can't quote me but facts are facts. Your buddy wishes to work an hour less per week so will get paid less the equivalent of this. The other person will get paid more based on his rate because he is working more (I think someone mentioned that so I agree with them).

Next, your buddy does not have to sign any contract and the company cannot dismiss him for not wanting to sign the contract. If they do, that is grounds for wrongful termination and he can sue them and will win without a shadow of a doubt and get a lot of money out of them in the process.

Secondly, the labour act states that an employee may only work 40 hours per week standard time and maximum of 45 hours per week, which the other 5 hours must be paid at time and a half. So the fact that your buddy wants to decrease that to 44 is not against the law and in fact, doesn't have to work the extra 4 hours if he doesn't want to.

Thirdly, the fact that the company wishes to get someone else, who costs more, to perform the job is their decision and not his and thus has nothing to do with him.

Lastly, I take unpaid leave regularly where I work (in an audit firm) and I have to be replaced by someone else who either costs more or less and I do not bear the cost, so what that company is trying to do is in fact unlawful and if it went to a labour union or court, the company would come out on the short end of the stick.

Hope this helps but in all honesty, your buddy should not sign the contract and actually tell the people he works for that he is going to take a copy and ask for a legal opinion on the matter before making a decision. That will get the companies attention and trust me, they will change their attitude very quickly once they know lawyers are going to be involved.
 

Drunkard #1

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Don't take this as gospel, but I don't think this is as cut and dry as you everyone thinks. It might be wrong for a company to insist on this, but I'm not sure it's illegal.

Your friend signed a contract to work for 45 hours a week, subject to the legislated holidays, leave, sick days etc. Now he wants to unilaterally alter a material term of that contract. Unless there is something specifically allowing him to, in whatever Act, he can't, and he will effectively be in breach of his employment contract, and subject to disciplinary proceedings. The company has offered him a new contract at a new rate, which will be seen as a sign of good faith by the CCMA, and he has refused it. That might be seen as a tacit resignation, and not a termination.

Get legal advice.

The reason I say that this isn't clear cut, is because salaried employees have been forced by their contracts to work plenty of overtime for no extra pay, and this practice continues to this day, so it's obviously not illegal. But I haven't read the Acts since varsity, so I can't remember the rules, which have probably changed in the interim.
 

Uraeus

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no, salaries cannot be mixed like this. lol.

Others are also not even supposed to know what pay you get, it's unethical.

My thoughts exactly. No contract has been signed yet, it is still in negotiation.
Its not lekker when colleagues know what each other earn, can mess up relationships.

Look dude, I don't understand your scenario and I don't understand all these replies but here is my opinion from a legal perspective.

I am not a labour broker so you can't take my word on this or can't quote me but facts are facts. Your buddy wishes to work an hour less per week so will get paid less the equivalent of this. The other person will get paid more based on his rate because he is working more (I think someone mentioned that so I agree with them).

Next, your buddy does not have to sign any contract and the company cannot dismiss him for not wanting to sign the contract. If they do, that is grounds for wrongful termination and he can sue them and will win without a shadow of a doubt and get a lot of money out of them in the process.

Secondly, the labour act states that an employee may only work 40 hours per week standard time and maximum of 45 hours per week, which the other 5 hours must be paid at time and a half. So the fact that your buddy wants to decrease that to 44 is not against the law and in fact, doesn't have to work the extra 4 hours if he doesn't want to.

It is now 45 hours per week normal time according to SA labour law

Thirdly, the fact that the company wishes to get someone else, who costs more, to perform the job is their decision and not his and thus has nothing to do with him.

Lastly, I take unpaid leave regularly where I work (in an audit firm) and I have to be replaced by someone else who either costs more or less and I do not bear the cost, so what that company is trying to do is in fact unlawful and if it went to a labour union or court, the company would come out on the short end of the stick.

Hope this helps but in all honesty, your buddy should not sign the contract and actually tell the people he works for that he is going to take a copy and ask for a legal opinion on the matter before making a decision. That will get the companies attention and trust me, they will change their attitude very quickly once they know lawyers are going to be involved.

Sorry for the confusing thread and thanks for your reply :)

Don't take this as gospel, but I don't think this is as cut and dry as you everyone thinks. It might be wrong for a company to insist on this, but I'm not sure it's illegal.

Your friend signed a contract to work for 45 hours a week, subject to the legislated holidays, leave, sick days etc. Now he wants to unilaterally alter a material term of that contract. Unless there is something specifically allowing him to, in whatever Act, he can't, and he will effectively be in breach of his employment contract, and subject to disciplinary proceedings. The company has offered him a new contract at a new rate, which will be seen as a sign of good faith by the CCMA, and he has refused it. That might be seen as a tacit resignation, and not a termination.

Get legal advice.

The reason I say that this isn't clear cut, is because salaried employees have been forced by their contracts to work plenty of overtime for no extra pay, and this practice continues to this day, so it's obviously not illegal. But I haven't read the Acts since varsity, so I can't remember the rules, which have probably changed in the interim.

I agree with what you have said, but that implies if a contract has already been signed. I will advice my friend with this information and he will inform them tomorrow.

Thanks for the feedback guys, sorry again if it sounded cryptic :)
 

Other Pineapple Smurf

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Firstly you need to advice your friend that he needs to look at the T&C of his existing employment contract. What many guys will not mention (or are not aware of the fact) is that once you go over a certain salary threshold, the BCE becomes less relevant. Certain conditions are dropped and these will be based on job title, salary and industry.

Example is a manager earning *R250K in a retail store will not be entitled to overtime or the 44 hour week. The labour department says that once you earn a big salary, you take on more responsibilities - its a parallel world out there.

* I need to find the the new threshold but it was R187K two years back. Oh, and I use to be a retail store manager but was always under the threshold and was about to take on my boss but ended up leaving the company.
 

SilverNodashi

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Oct 12, 2007
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Irrespective of what the other guy earns, you signed (ok, your friend) a contract which states that he get's paid Rx/h for x hours work per month. If he suddently decides to work U hours a month, then surely he can't expect to still be paid Rx per month, but rather Ru per month. If he's in breach of his contract, then then employer can legally take steps against him. That's what a contract is for.
 

Icarium

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Jan 15, 2010
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I'd have to side with the company to some extent on this one.

Why should your friend's request to work less hours cost the company more? (ie: For every hour X doesn't want to work, Y has to cover the shortfall. They can't reduce Y's hourly rate, so every hour of work moved from X to Y (ignoring overtime considerations) is going to cost them R50). Taking that R50 out of X - who is requesting the reduced hours - is neither illegal, nor particularly unethical. If X doesn't like it, he can refuse and stick to the existnig work hours.
 
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