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Thread: Maternity Leave

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    Maternity Leave

    We're in the process of finalizing our Leave Policy with a clause stating that our company is willing to pay 90% (CTC) of an employee’s salary for the first 3 months of their maternity leave. I’m sure you’ll agree, a generous offer indeed. But here’s the catch…should the employee terminate their services within a period of 12 months after their return from leave a pro-rata amount of what was paid will be deducted from any monies owing to the employee. My argument has been that this will constitute an illegal deduction. I was vetoed. I tried looking for case law to substantiate my stand but these are all paid sites and my company refuses to subsidize any subscription fees to any sites so I’m screwed. Does anyone have any information that could help me fight my case, know of any website where I could download substantiating information? Of course the flip side of the coin is that I could be wrong, but I seriously doubt that. So any help in this regard will be appreciated.

    Regards
    Shane

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    Hi Shane

    Have you had a look at the Basic conditions of Employment?

    Section 4.6 highlights the following on Deductions:

    Deductions and other acts concerning remuneration : Sections 34 and 34A

    4.6.1 An employer may not deduct money from an employee’s remuneration unless –
    (a) The employee agrees in writing to the deduction of a specific debt;
    (b) The deduction is made in terms of a collective agreement, law, court order or arbitration award

    4.6.2 A deduction in respect of damage or loss caused by the employee may only be made with agreement and after the employer has followed a fair procedure

    4.6.3 Employers must pay deductions and employer contributions to benefit funds to the fund within seven days.



    So from what gather you can legally deduct these amount from her remuneration provided under the conditions of the above.

    Why do you believe that it will be illegal?

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    Hi Hannes

    Thanks for your feedback but I don't agree with you.

    BCEA states that money can only be deducted for:
    4.6.1
    a) debt (e.g. company loan)
    b) collective agreement (we're not part of any collective agreements), law (e.g. UIF), court order (don't have that)
    4.6.2
    Damage or loss (maternity leave payment isn't either)
    4.6.3
    Payments to benefit funds (nope)

    Making deductions from wages already paid in good faith isn't covered by any of the above permissions according to BCEA, in my understanding of the Act

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    If no collective agreement (duly negotiated between relevant union & management), such a clause must be written in company policy agreement, inform all staff members and discuss and explain the terms with them, i.e properly communicate the firm's intentions and policy structures - in writing.

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    I see a parallel with education and training agreements that have a required service clause. I seem to recall the way those are structured is as bursary (effectively a loan of sorts) agreement which is written off as the service requirements are satisfied.

    I don't know if that helps advance a solution, though.
    The trouble with opportunity is it normally comes dressed up as work.

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    So a collective agreement could exist between employer and employee in the absence of a trade union?

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    In the absence of a trade union situation, arrange a formal staff meeting where you inform ALL staff of your intentions. After these discussions and once it has been agreed upon by all (cannot just be a unilateral decision by management), prepare an addendum to their existing contracts to this effect.

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    Can anyone help me?
    we have an employee going on maternity leave.

    Taking one month before the birth, and three months after. she has worked for 4 years and is entitled to the full 4 months UIF Benefit.
    She is due for 3 weeks annual leave.

    May the company pay "her out" in cash for her leave? so that she can claim as much UIF as permitted being the full four months of her benefit?
    Being last date at work 30th November? if she must take her leave as per normal her last date at work would be end of December?

    We have been unable to get an answer as to what % of her salary she will receive from UIF, telephone calls to their help line have been no assistance, we are told : Only UIF will calculate it and that it will be between 38% - 58%.
    Regarding the leave, the answer is pay her for December, being the leave, then she only needs to claim for three months UIF, and that it would not make any difference to her UIF claim, I am not sure they understood my question.

    We have read various articles that say it is taking months for maternity UIF benefits to be paid? is this the general procedure?

    We investigated companies which handle the UIF maternity applications and assist in timeous payments, the fee is from R600 which seems to be substantial, we are considering offering this service, but wonder if there could be any unthought of consequences which come back to haunt us through labor law? any suggestions?

    thanks

    Yvonne

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    Hi Shane.

    I am handling a case where the company paid out the maternity benefit portion not paid by UIF. The employee was then dismissed and the company claimed back their portion. The commissioners have already claimed their agreement is illegal to start with. We are claiming 12 months salary for unfair dismissal.

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    The BCEA lays down the minimum standards, hence as your policy is an improvement on the BCEA that is the first issue dealt with. As to the deducting of monies a written agreement will cover you on this issue. Your problem would be enforcing it though, as the only surety you hold is the leave pay due. Hence you would need to proceed via the civil court to get your money, which would not really be viable other than in high earning individuals. Although the small claims court would be an option - at the end of the day if they do not have the money then you are stuck.

    Hence your problem is not the actual deducting but the logistics. Presumably the thinking is staff retention and in particular females, you maybe need to look at another mechanism to implement. You could also sit with the issue where it is lucrative to be pregnant, at 90% of salary I would be earning good money while at home?

    Perhaps a compromise, 45% of the salary for the 4 months and then they receive a stipend/grant of the balance over 6 months on returning from pregnancy? Just an idea

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