Asked by Michelle on 06-08-2019 11:51:28
Question posted in the General Law category relating to Gauteng

To whom it may concern, 

I recently resigned from my job. The company is withholding my salary and leave pay. I was awarded a bursary to study Bcom Business Management, Specializing in Supply Chain Management in 2017. The bursary is funded by SAEPA / TETA through the company. I signed an agreement in 2017 stating that I would repay the funds of R184576.00 in the event of resigning from the company prior to the completion of the 3 year study program. This was however after I discovered that the company is fully refunded for the amount by SAEPA / TETA. The company then wanted me to sign a LOI on the day of resignation which I refused, however now they have not paid my salary and I have requested for them to put it in writing but I have not received anything as yet. What should I do?

Thank you 

Michelle

Posted by Att. Patrick on 06-08-2019 13:11:18

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

You should refer the dispute (the failure by the company to pay you your salary) to the CCMA. You have 30 days to do this from the date of the dispute, so you should not delay. 

From what you've said above, it appears that there is no basis for the company to withhold your salary... especially if you complied with the terms of the bursary agreement, and especially if the company isn't actually suffering any loss. 

If you don't want to refer the dispute to the CCMA, you are entitled to hire a lawyer to issue a summons against the company, but that would cost you legal fees whereas the CCMA process is free for you. 

The details are: http://www.ccma.org.za/

You need to ensure that in your dispute you specifically mention the bursary agreement, and that you would repay the funds if you resigned prior to the completion of the 3 year study program, and that you didn't resign prior to the completion of the 3 year study program, and that you have only after finalising your studies did you resign.

Otherwise, if you don't, then the company will make a whole song and a dance about it and cast doubt on your claim. 

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Thank you for the feedback. I think I did not communicate clearly to you. I have not finished the 3 year studies. I am done with year 2 but still have year 3 to complete. However the company wanted me to sign the LOI for the full 3 year period even though year 3 is only commencing in September of this year.

I have already reached out to SAEPA for the year 3 studies and they have advised that I can pay for the studies directly to the Institute and then SAEPA will reimburse me 100%. This is my whole argument as to why the company withheld my salary against the study fees even though they are being reimbursed for the full amount.

Posted by Att. Patrick on 06-08-2019 17:13:50

Sorry, you didn't really explain that clearly enough. It is all much clearer now. 

So what I said above is that you should refer the dispute (the failure by the company to pay you your salary) to the CCMA for a determination.  The CCMA is the quickest, cheapest, and best way (in my opinion) for you to resolve this dispute. 

The company might come with a defence about the bursary, etc ... but your answer to that would be (as I said) that the company is not suffering any loss.

You should also ensure that the CCMA commissioner understands that there are two (2) separate things going on here, which are NOT linked together:-

1) Your employment with the company and your right to receive your salary; and

2) The whole issue about the bursary and whether the company experienced a loss or not.

What the company is trying to do is to link them together. i.e. withhold your salary from (1) because of (2). They can't do that. 

They need to pay you your salary, and IF they think that they should be able to get money back from you because of (2), then they can sue you in the Magistrates Court for that.