A Texas fast food restaurant fired the store's manager after an armed robber made off with $400. On 31 March 2015 he came in and demanded she open the cash register, and he ran off with the cash.
After this traumatic incident, the employer said she had to pay back the money. She wouldn't pay the money back, and they dismissed her.
As you can imagine, this has raised more than a few eyebrows. Even in the United States of America which isn't as strict in its employment laws. How would you deal with this under South Africa's strict labour laws? Let's have a look...
The labour laws that protect your employees
Employees have protection from an unfair dismissal. A dismissal is unfair unless you can show you have a valid reason for it. And you follow a fair procedure before dismissing the employee. (Labour Relations Act, No 66 of 1995)
You also can't just deduct money from an employee's salary - except for a few specific instances. If an employee causes loss or damage to you, you can get the employee's consent to deduct the amount. But you still have to follow certain rules (section 34(2) of the BCEA). One of these rules says the loss or damage must be because of the employee's fault. And you can't deduct more than what was lost.
Having a look at the Texas case, the employee could refuse consent to:
1. Pay the money stolen to the employer; or
2. Allow them to deduct it from her salary.
Under our law, if you want to recover losses from an employee, and the employee refuses to pay, you can issue a summons for the money in civil proceedings.
Do you know the answers to these frequently asked maternity questions?
- When are you obliged to send your employee on maternity leave?
- Do you have to pay benefits like pension and medical aid while your employee's on maternity leave?
- Can your employee resign while she's on maternity leave?
- Do you have to pay your employee her full salary when on maternity leave?
- Is maternity leave separate from annual and sick leave?
- Can your employee request an extension to her maternity leave?
- How soon after the birth can your employee return to work?
Knowing the answers to these and other important maternity leave questions could mean the difference between landing up at the CCMA and running your business successfully...
And that's where Your Maternity Leave Solution - All of your burning questions answered comes to the rescue...
You could dismiss her too… But only in this one instance!
You could take disciplinary action and even fairly dismiss the employee if she wasn't sticking to your workplace rules. In this case, the employee has to make sure the money in the till is below a certain amount. This is common in retail outlets and means to reduce losses in a robbery. The manager said the restaurant was busy so she couldn't check and empty the till in time.
If this happened in South Africa, the CCMA would probably agree with you and say the manager was negligent. Because she didn't check and empty the cash to make sure it was below the maximum amount.
And you're within your rights to lay down fair and valid workplace rules so your business runs smoothly. You can discipline employees who don't stick to your rules. This includes dismissal.
The employee's pregnancy adds a complication to the matter. Because employees in South Africa have protection against discrimination on certain factors, including pregnancy. But the Texas matter doesn't suggest her dismissal had anything to do with her pregnancy.
If this happened to you, and her pregnancy was part of your reason for the dismissal, she could've said her dismissal was automatically unfair. If she won, you would've had to reinstate or re-employ her, or pay her up to 24 months' remuneration.
So there you have it… Make sure you have fair workplace procedures and processes in place so you don't end up with an unfair dismissal case on your hands.