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  • Good day,

Please is it lawful for an employer to claim that an ex-employee was absent from work for 54 days in three months without authorization and as such will deduct the monetary value from his (ex-employee’s) outstanding salary payments.

Please note the following:

The ex-employee was never queried (orally or written) on such issue while he worked their.

The 3 months in question are part of months he’s being owed.

Secondly is it not a breach of contract if the employer doesn’t pay salaries as and when due? Under such working condition is still binding on the employees to report for work as and when due?

Thanks

Best Answer
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Hello,

Thank you for contacting us, an employee/employer relationship is a contractual situation. The employee is contracted to appear at the workplace and to work. If he/she does not, that is a breach of contract and technically an employer may it be permissible the deduct the monetary value.

While the proper process would have been to query the employee, the fact that he/she was not queried does not automatically mean they cannot revisit the issue. Although good practice would have been that they were queried immediately.

With respect to your second question, non-payment of salary is a breach of contract and the employee is free to terminate the contract on that basis. However the fact that the employer breached its obligation does not give the employee the legal right to commit its own breach. The correct process would have been for the employee to terminate the contract and then stop reporting to work.

We hope you have found this information helpful. Please note that this information is provided for general informational purposes only and is not intended to be legal advice. No lawyer-client relationship is formed nor should any such relationship be implied. It is not intended to substitute for the advice of a qualified lawyer. If you require legal advice, please consult with a qualified lawyer. If you need assistance in contacting a lawyer, you may contact us at https://www.lawpadi.com/get-a-lawyer/ and we would be glad to match you with a lawyer who meets your requirements.

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  • Admin
    Follow up question; Thank you lawpadi, your timely response has greatly helped my understanding. However permit to ask further if such employees stand a chance of recovering their salary arrears via legal means (industrial court). I’m asking because of your use of such phrases as ‘the normal process’ and ‘correct process’ and I’m wondering if you mean ‘normal/correct’ legal process. Thank you.
  • Admin
    Lawpadi response to follow up question: We cannot say for certain if the employee has a viable case for the courts. This position can only be known once the full facts have been reviewed by a qualified lawyer, but non payment of salary on the face of it is something which an employee can claim for at the National Industrial Court. Regarding the second part of the follow up question. The use of the words ‘normal process’ and ‘correct process’ refers to what the process should be if the employer had a well drafted Employee/Staff handbook and the employment contract contained all the standard clauses. As we do not have the benefit of seeing the contract or staff handbook we cannot ascertain what the process would be in your specific case. We hope you have found this information helpful. Please note that this information is provided for general informational purposes only and is not intended to be legal advice. No lawyer-client relationship is formed nor should any such relationship be implied. It is not intended to substitute for the advice of a qualified lawyer.
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