A common problem facing several companies is the issue of deductions from an employee’s salary, whether they are for negligent damage, company loans or even medical aid contributions. Section 34 of the Basic Condition of Employment Act (BCEA) states that no employer may deduct monies from an employee’s salary unless; - It is required by law (PAYE & UIF), a Collective Agreement, or an Arbitration Award, or - They have specifically agreed to that deduction, or - The employee has caused damage to company/client property during the course of his duties and he/she has been given an opportunity to state why they feel the deduction should not be made.

Whilst the amount to be deducted is defined within the first two scenarios the third presents a more complex situation. When an employee negligently damages a company vehicle, for example, to the value of R25 000.00 he/she cannot be expected to pay that amount in full on a monthly salary of only R3000.00 As a result of this the BCEA protects employees from excessive deductions by stating that an employer may not deduct more than 25 % of the employee’s salary at a time.

Most often the employer and employee will then enter into an acknowledgment of debt agreement whereby the amounts and duration of the expected payments will be dealt with. In addition, it stipulates that should the employee’s services be terminated at any point he/she is liable for the full outstanding amount.

It is therefore recommended that should you wish to deduct any monies from your employee you consult us first to ensure it is being done in the right manner.

There are essentially two areas that need to be addressed within this topic, namely, refusing when contracted to do so and refusing in the face of disciplinary action. Should an employees contract of employment state that he will submit himself to a Polygraph Test and he then refuses he may be in breach of his contract, which could be dismissible, depending on the nature of each situation.

In the second situation an employee is faced with a notice to attend a disciplinary hearing and is requested to undergo a Polygraph Test of which the results will be submitted during the hearing. The employee refuses to undergo the test without good cause and the employer may then take a negative inference from his refusal.

This is discussed in MELENI & OTHERS and ROHLOFF ADMINISTRATION (2006) 27 ILJ 1960 (CCMA) where the Commissioner upheld a dismissal of an employee that had been implicated by other employees in the theft of company property. When approached he refused to undergo a Polygraph Test and was subsequently dismissed. In summary, the employer had established, on a balance of probabilities that a large number of employees had acted with a common purpose to steal money by not ringing up orders. Employees were given the opportunity to clear their name by taking a polygraph test. They chose not to do so, and so were unable to rebut the evidence that they were part of the common purpose group.

A similar example of this would be where an employee is believed to be under the influence of alcohol or illegal drugs and, upon request, refuses to undergo a breathalyser and/or blood test. However, again it is critical that employers have this policy clearly stated in the company rules and regulations that should any employee be suspected of being under the influence they must submit themselves to any test required by the employer. It is clear then that in both situations the refusal to undergo a polygraph test can be detrimental to the employee’s cause, however, employers must practice caution as the use of polygraphs etc. have not been tested out in the Labour Court. As a result of this it is critical to consult your service provider first.