Your pay is short this month, or it has not come at all. Your employer may have docked money for a breakage or held it back over a disagreement. Either way, you have the right to know whether that is legal.
It usually is not. Your salary is protected by law, and an employer can only deduct from your pay in limited situations. Withholding wages you have already earned is almost never one of them.
Your Salary Is Protected
The main law here is the Basic Conditions of Employment Act, or BCEA. Section 34 governs deductions. Your employer cannot take money off your pay unless one of two things is true.
First, you have given written consent for a specific deduction, such as a signed agreement to repay a loan. Second, the deduction is required or allowed by law, a court order, a collective agreement, or an arbitration award.
Any other deduction is unlawful. Understanding your rights as an employee helps you recognise when your employer has stepped outside these rules.
Deductions Your Employer Can Make
Some deductions are normal and lawful. You will usually see them itemised on your payslip.
Deductions your employer may make include:
- Tax (PAYE) and UIF contributions, which the law requires
- Retirement fund or medical aid contributions that you have agreed to
- Union membership fees, where you are a member and have agreed to them
- Garnishee or other court orders that direct part of your pay to someone else
- Loan or salary advance repayments that you agreed to in writing
These are lawful because the law requires them or you have agreed to them. The amount and reason should be clear, and you can ask your employer to explain anything on your payslip you do not understand.
Deductions for Loss or Damage Have Stricter Rules
Employers sometimes deduct for a loss the business has suffered, such as a till shortage or damage to a company vehicle. This is allowed, but the rules are strict. Your employer needs your written agreement to the deduction, and all of the following must also be true:
- The loss or damage happened at work and was your fault
- Your employer followed a fair process and gave you a chance to explain your side
- The amount deducted does not exceed the actual loss
- The deduction does not exceed a quarter of your pay for that period
If these requirements are not met, the deduction is not lawful. Where you have not agreed, your employer cannot simply take the money and would have to claim it through a court instead. A common mistake is deducting for a shortage on the spot, without your agreement and without giving you a chance to respond.
What Your Employer Cannot Do
Some actions are not allowed, whatever your contract says.
Your employer cannot:
- Withhold your full salary for work you have already done
- Fine you as a punishment for a mistake or misconduct
- Deduct a disputed amount without your consent or a court order
- Take money off your pay simply because they believe you owe the business
If there is a genuine dispute about money you may owe, your employer has to follow the proper route, which usually means reaching an agreement with you or going to court. They cannot take the law into their own hands.
There is one exception. If you did not work, through unpaid leave or an unprotected strike, your employer does not have to pay you for that time. That is different from holding back pay you have already earned.
What to Do If Your Pay Is Withheld
If your pay has been withheld, or deducted without your agreement, take these steps.
- Raise it in writing. Ask your employer for an explanation and put your request in an email or letter. Keep a copy. Many deductions turn out to be payroll errors that are fixed quickly.
- Gather your records. Keep your payslips, your employment contract, any messages about the deduction, and a note of the dates and amounts involved. These show what you were owed and what was taken.
- Approach the Department of Employment and Labour. You can report unpaid wages to a labour inspector, who can investigate and order your employer to comply. It is free.
- Refer the matter to the CCMA. If you earn below a set threshold, you can refer a claim for unpaid amounts to the CCMA. For higher earners, the claim goes to court instead.
Act quickly. A claim for unpaid money expires after three years, and once it does, you lose the right to recover what you are owed.
When to Speak to a Labour Attorney
The right forum for a salary claim depends on how much you earn and why your pay was withheld. Getting that wrong can cost you time.
A labour attorney can confirm whether the deduction was lawful and take the claim to the right forum on your behalf. That often settles the matter faster than dealing with your employer yourself.
Get Help From SB Lawyers
At SB Lawyers, our labour team helps employees across Pretoria and Nelspruit recover pay that has been unfairly withheld or deducted. If your employer is holding back your salary or taking money you did not agree to, speak to us. Contact SB Lawyers today to find out where you stand and what your options are.