Getting back money paid in error

acidrain said:
Hi guys,

So recently it was brought to my attention that our bookeeper had, in error, paid a former employee twice for the same transaction which was essentially their notice pay and accrued leave.

First point was to ask them that the money was paid in error and if they can eft it back ( R14k ). As i expected though, their response was that they have spent the money already on debt or whatever. They did acknowledge that additional money was received over and above what they should have received so there is no arguing that they weren't aware. I requested their bank statement to back up their claim that they have no funds to pay it back.... no response.

Payment plan is not possible as they are unemployed, or so they claim even though I said it doesn't have to be large amounts so long as there is a structured plan instead of "when i can".

Holding the book keeper liable not an option as it is the directors mother.

Essentially what are the options here. The way I see it is get a lawyer ( for R14k? claim ) or write this off to school fees. I'm pretty sure the cops will not hear this.

Thoughts?
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So two people, well actually three not taking responsibility. South Africa 101 :thumbsup:
 
quovadis said:
The knowingly part is why a criminal charge would be premature. It could be argued that it was reasonable that the former employee thought the funds received were in lieu of leave or other monies owed due to the termination of employment especially if the employee did not receive notification of the erroneous payment immediately. What you are advising above and "negotiating" is tantamount to extortion.
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I concur with your reasoning but I specifically prefaced it as “knowingly” On the basis that the OP stated duplication of payments (ie two payments of same amount) and inferred that a final salary slip as legally required would provide detail of payment to be received. On this basis the recipient would be hard pressed to argue that they didn’t know or unwittingly spent the amount.
Extortion requires an “unlawful” action to obtain that which is not due to you. The laying of a charge in this matter is perfectly legal and reasonable. And the amount is due.

Plea negotiations , charge waivers And restitution in lieu of occurs everyday in the judiciary.
 
etwylite said:
I concur with your reasoning but I specifically prefaced it as “knowingly” On the basis that the OP stated duplication of payments (ie two payments of same amount) and inferred that a final salary slip as legally required would provide detail of payment to be received. On this basis the recipient would be hard pressed to argue that they didn’t know or unwittingly spent the amount.
Extortion requires an “unlawful” action to obtain that which is not due to you. The laying of a charge in this matter is perfectly legal and reasonable. And the amount is due.

Plea negotiations , charge waivers And restitution in lieu of occurs everyday in the judiciary.
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You're assuming quite a lot especially as we don't know the timeframe between receipt of funds and the usage thereof. I don't believe you would be easily able to prove criminal intent in this matter as he did not receive the funds fraudulently and was expecting a payment in excess of his usual salary. This is of course provided that he did not deprive the OP by spending the funds subsequent to being notified of the error.

There's a massive distinction between a letter of demand threatening escalation to a criminal charge being laid vs laying a criminal charge and inducing payment in exchange for withdrawal of a criminal complaint.
 
acidrain said:
Hi guys,

So recently it was brought to my attention that our bookeeper had, in error, paid a former employee twice for the same transaction which was essentially their notice pay and accrued leave.

First point was to ask them that the money was paid in error and if they can eft it back ( R14k ). As i expected though, their response was that they have spent the money already on debt or whatever. They did acknowledge that additional money was received over and above what they should have received so there is no arguing that they weren't aware. I requested their bank statement to back up their claim that they have no funds to pay it back.... no response.

Payment plan is not possible as they are unemployed, or so they claim even though I said it doesn't have to be large amounts so long as there is a structured plan instead of "when i can".

Holding the book keeper liable not an option as it is the directors mother.

Essentially what are the options here. The way I see it is get a lawyer ( for R14k? claim ) or write this off to school fees. I'm pretty sure the cops will not hear this.

Thoughts?
Click to expand...

Quite simple I am afraid

Option 1 - Claim back from the person who incorrectly benefitted from the transfer ie the ex employee, this seems to have failed (this is not to disimilar from that uni student who spent money on her NSFAS money that wasnt hers incorrectly deposited, though value is massively different)

Option 2 - if Option 1 fails, it would need to go through a small claims court I am afraid due to size of transaction

Practical: Continue to harass the individual, and send notices through a 3 month process and keep the audit trail
But in all honmest, you already know where this is going. This will need to be signed off as a write off and posted against expenses as likelihood of getting this back is exceedingly low

Sorry to hear but I am afraid that if a book keeper is making this type of mistake, even if its the directors Mother, needs to be highlighted and a disciplinary process needs to occur depending on your companies contracts and or policy

NOTE: I am no legal expert
 
Can you not do a recall request at your bank? While not guaranteed and can be a lengthy process, worth a shot.
 
Goosfrabba said:
Can you not do a recall request at your bank? While not guaranteed and can be a lengthy process, worth a shot.
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A bank reversal is possible but it would require the recipient to agree to the reversal. Since informing them, they are no longer responding via text, call or email so highly doubt there would be an agreement and if so, has probably spent what may have been left now so there would be no money to reverse as I am sure that in order for a reversal to be successful, there would have to be money in the recipients account.

After much thought, have decided to write it off. Even going the legal route, the only outcome in court would be a garnishing order which would then require us to know when they are employed and by whom so we could issue the court order to that employer ( near impossible to do without further expenses. )

Sucks but lesson learnt.
 
Matt91 said:
... so the bookkeeper in question isn't handling company funds anymore?
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Nope she will still handle payment processing. That decision is really out of my control. If that role though had been revoked then she would be redundant. In fact she is, currently, redundant since the MD can easily process payments.

Going off topic but to draw a picture, I tried to go down that avenue months back for reasons:
1. Our books are now contracted out to an accounting firm, and
2. Payroll processing is now handled by myself instead of her

So she get's paid a salary to essentially log into FNB and make payments. The MD refused to accept that option for reasons being family and the second director ( whilst behind closed doors ) agreed with me, made a 360 turn to avoid conflict because they are still good friends. I severed the friendship a while back because it was getting in the way. Long story I was outvoted then and the same would occur in this instance.

edit: What was meant by lesson learnt is I hope for them the lesson has been learnt.
 
quovadis said:
The knowingly part is why a criminal charge would be premature. It could be argued that it was reasonable that the former employee thought the funds received were in lieu of leave or other monies owed due to the termination of employment especially if the employee did not receive notification of the erroneous payment immediately. What you are advising above and "negotiating" is tantamount to extortion.
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Nope.

Spending money received in error is a VERY OLD textbook classic given to Law 101 students. There is a mountain of precedent on it and a train of cases that deal with exactly the same scenario.

Its theft.

Flimsy excuses of "I thought it was for me for x reason" do not fly. It will be swatted by even a half competent judge.

The OP already has enough evidence to secure a conviction. The recipient has admitted they received money over and above what they were entitled to. They have admitted theft.
 
retromodcoza said:
Nope.

Spending money received in error is a VERY OLD textbook classic given to Law 101 students. There is a mountain of precedent on it and a train of cases that deal with exactly the same scenario.

Its theft.

Flimsy excuses of "I thought it was for me for x reason" do not fly. It will be swatted by even a half competent judge.

The OP already has enough evidence to secure a conviction. The recipient has admitted they received money over and above what they were entitled to. They have admitted theft.
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No. It's not as simple primarily because the person in question may have had the bonafide belief that such payment was in fact due to them in lieu of leave, bonus, pension or other benefit payouts and would be in excess of their usual salary received. That's arguably stupidity and not strictly mens rea. If the person was still employed by the company and received a double salary without the expectation of an additional payout then I would agree with you however even those cases don't necessarily land up in criminal court. Each case has to be viewed on its own merits and I was just pointing out why a criminal charge would be premature based on the information at hand.
 
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acidrain said:
After much thought, have decided to write it off. Even going the legal route, the only outcome in court would be a garnishing order which would then require us to know when they are employed and by whom so we could issue the court order to that employer ( near impossible to do without further expenses. )
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I would consult an attorney who specialises in collections. You could get a judgment on their credit record until the funds are repaid as an option. If it were me I would send the employee a registered/couriered formal letter stating the quantum of the payment, how it was made in error and there is an expectation of repayment and should they not make a repayment arrangement it will be referred to an attorney for a claim for the original amount and legal/collection fees.
 
quovadis said:
I would consult an attorney who specialises in collections. You could get a judgment on their credit record until the funds are repaid as an option. If it were me I would send the employee a registered/couriered formal letter stating the quantum of the payment, how it was made in error and there is an expectation of repayment and should they not make a repayment arrangement it will be referred to an attorney for a claim for the original amount and legal/collection fees.
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This is precisely the route you need to go. However nothing comes for free. Will be rather expensive as you already know, to approach a collections attorney and start this process unless you have in house legal counsel etc
Anyway good luck collecting money from a person who spent the money, accepted it wasnt theirs but couldnt be bothered. What a wonderful world we live it

O and lets not forget your wonderfuly competent bookkeeper who is getting away scot free for the next mistake
 
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