Good DayI hope you will be able to assis...

Asked by SamanthaK on 25-11-2020 10:35:16
Question posted in the General Law category relating to Gauteng

Good Day

I hope you will be able to assist, I do have a legal question but I'm the guilty party.

I have committed fraud at my previous company.(which were a once-off incident) They've confirmed banking details with the help of a friend at the bank, I've confessed and paid back the money within two days after it was transferred. I was suspended and then decided to resign. They've done an investigation by themselves and then 1.5months afterwards decided to do a forensic investigation, it's now four months later and I haven't heard anything from them, they've kept my provident fund and leave due but still didn't let me know the reason why as I have refunded them the money. I've send them an email a month ago asking for an update as well as whatsupps, they are ignoring me at this stage and I have no idea where I stand with them now. I've had the opportunity to start a new job (not in finance) but the reference they've given was that I was dismissed due to the fraud.

Is there anything I can do just to get some clarity as to where I stand with them?

Answer to the Question

Posted by Att. Patrick on 25-11-2020 11:02:16

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. 

I think that the route that you need to go is -

1) Write them a letter demanding that they pay you out your leave pay and your provident fund, within 7 days, failing which you are going to lay a complaint with the CCMA or sue them in the magistrates court;

2) Then, go to the CCMA (after 7 days) and lay a complaint with the CCMA that the company has not paid out your leave pay and your provident fund.

"The Basic Conditions of Employment Act - section 20 - lays down certain conditions applicable to annual leave. One of the conditions is that the employer may not pay an employee instead of granting paid annual leave except on termination of employment, and in terms of section 40 (b) & (c). Those sections state that on termination of employment, an employer must pay an employee remuneration calculated in accordance with section 21 (1) for any period of annual leave due in terms of section 20 (2) that the employee has not taken."

This is the obligation on your employer to pay your leave pay!

https://www.labourguide.co.za/conditions-of-employment/90-leave-paid

There is another article here which also deals with this situation - https://www.scorpion.biz/Stay-smart/Employer-refuses-to-pay-out-leave.aspx

I don't think that it is fair that the company has failed to respond to your messages. This fact should be included in the dispute filed with the CCMA. 

One of the disputes can also be that your employer is providing false references to people that you were dismissed for fraud when you actually resigned. This is not on!

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.

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