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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14832
Experience:  L.LB (UOVS)
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Hi, I was on paid maternity leave (full salary) from April

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Hi, I was on paid maternity leave (full salary) from April to July totalling 3 months. I recently found another job and resigned, negotiating my notice for two and a half weeks.
My company is requesting that i pay back my maternity leave pay in full on my last day. I have been advised by my HR that I would normally have to pay whatever amount is to be quoted in full by my last day or I will be blacklisted.
I'm supposed to work for 3 months after my return and have only been back for 2 months including the notice period.
My argument is that, if you don't count my annual leave that I attached after my maternity, my maternity leave ended in the middle of July and after that I was on annual leave until the end of July. This would mean I only owe one week to complete the 3 months I was on maternity leave for. since I will be working the first week of October, can the company not withold that one week's salary and use that to pay back the remaining one week I owe for my maternity?
Can i refuse to pay on condition that I simply cannot afford it?
Submitted: 11 months ago.
Category: South Africa Law
Expert:  WCLawyer replied 11 months ago.
Good day and thank you for your question. My name is XXXXX XXXXX I will try and assist you today.

In order to provide you with the most accurate answer, I may have to ask you a lot of questions. This may seem tedious and irrelevant, but trust me, there is a reason for every question. So please be patient throughout the process and if it takes a little long for me to come back to you, it is probably because I am researching your answer. I hope that is okay.

Is this what your employment contract or company policy say? That you have to work at least the same amount of time that you were on maternity leave, after your maternity leave or you would have to pay the company back?
Customer: replied 11 months ago.


I can't remember if the contract states this but I have been told verbally by HR that the requirement is for me to serve the equivalent after my maternity.

Expert:  WCLawyer replied 11 months ago.
Do you have a copy of your contract and/or your company's policies on maternity leave?
Customer: replied 11 months ago.


not readily. i could request it. If it does say that I have to work the diffirence can I request that the counting begin from the last date of maternity leave and not my return date?

Expert:  WCLawyer replied 11 months ago.
Remember that maternity leave is normally unpaid leave. Payment during maternity leave is normally made by the UIF and not the employer and normally at a reduced rate, unless the employment agreement says otherwise.

So, let's assume that your employment contract says the company will pay your maternity leave in full, provided that, if you are to resign during or after the maternity leave, the maternity leave can be claimed back for that period that is equivalent to the period that you will not be working. So, for instance, if you took three months, you are to work three months before you resign and if you work two, then they can claim one back.

Such a clause would be legal and enforceable.

Now, the Basic Conditions of Employment Act says that, upon resignation, they must pay you your salary up and until the last day that you have worked, plus all leave pay due to you, plus whatever bonuses and commissions is due to you in terms of the employment contract.

Also, since annual leave is paid leave, I cannot fault your reasoning. It would seem as if you only owe the company a week based on the information that you provided to me. Even if they say that the period you think of as annual leave was actually maternity leave, it means that they owe you that amount of annual leave (since you have not taken it, according to them) in a money payment at termination, which can be set off against the additional maternity leave you owe them (according to them).

If they argue that this is not maternity leave, but annual leave, then they must end their calculation of the maternity leave at the beginning of your annual leave as you has said, which basically leaves you with the same result.

So, I cannot fault your reasoning and it would seem that you owe the company only one week, which can be subtracted from your last payment with your permission and only with your permission.

I sincerely XXXXX XXXXX I am making sense here, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively.
Customer: replied 11 months ago.


I would assume that if my company cannot produce a signed copy of this contract then they would have no right to claim the money back at all.


 


I am required to pay whatever amount in full on my last day (also according to my HR verbally). i have asked if I can make a payment arrangement and have been told only my head of operations can say yes or no. should I not be given the opportunity to pay this amount back in terms?


 


And also if I decided to be unreasonable and not agree to pay that amount the company can black list me?

Expert:  WCLawyer replied 11 months ago.
The employment agreement does not need to be signed in order to be valid. Even if they presented you with this agreement and you verbally acknowledged that you regard this as the terms and conditions of your employment, then the agreement would be valid. If this arrangement is not contained in your employment agreement (signed or unsigned) or it is not part of company policy that you have been made aware of or should reasonably have been aware of, then they would not be able to claim the money back.

If you do owe them any money, then they are under no obligation to accept any payment in installments. They can claim the full amount but may only take it from your final salary payment upon termination if you have agreed to it, again, either in your contract or any other agreement that you have signed with them after starting in their employ.

If you dispute the amount that is owing, then you need to tell them that you are disputing it and your reasons why and preferably in writing. If you calculate that you owe them a week (which I agree with, based on your information), then tender to pay that week or actually pay it. Tell them that if they continue to blacklist you for the disputed amount, you will hold them liable for the costs of removing your name from the blacklist and that you will further sue them for defamation of character.

But if you acknowledge debt of that week's salary, you must pay, or tender to pay, in writing, in order to avoid being blacklisted.
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14832
Experience: L.LB (UOVS)
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