When the boss keeps your retirement cash

Published Oct 9, 1999

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You may wonder what rights your employer has to withhold your retirement

fund money when you resign, if the company has sustained loss due to your

actions.

It boils down to what the rules of your retirement fund and the Pension

Funds Act says about the matter.

There is a provision in the Pension Funds Act that allows your pension fund

to deduct from your benefit any amount due to your employer as a result of

any fraud, dishonesty, theft and misconduct on your part, subject to certain

conditions.

But Naleen Jeram, an investigator in the Pension Funds Adjudicators office,

says the Adjudicator, John Murphy, will not tolerate your employer abusing a

right to withhold your benefits. Each case is taken on its merits, within

the context of the pensions funds rules.

In a recent case, involving the Kelvinator Group Services of South Africa

Provident Fund, the fund withheld the early withdrawal benefit of about R84

000 of one of its factory shop advisers, pending the outcome of a criminal

case involving fraud or misconduct. The fund`s rules did not allow for the

withholding of retirement benefits.

The adviser had allegedly embezzled about R78 000 and was dismissed.

The outcome of the criminal case against this person is still pending some

18 months after he left the company.

In his interim ruling and in the absence of a rule allowing withholding of a

benefit, Murphy has postponed the case to February next year, allowing the

fund to hold onto the retirement benefit, provided the matter is sorted out

within a reasonable time. He also ruled that the company may not hang onto

an amount greater than the value of the claim.

In another case, Murphy ruled that the fund could not hold back on a

retirement benefit - also an early withdrawal benefit - any longer than its

rules allowed.

In a case involving the Absa Group Pension Fund, the bank instructed the

pension fund to withhold payment of an early withdrawal benefit from one of

its bank managers, alleging it had lost a large amount of money as a result

of the manager`s misconduct. The manager resigned voluntarily.

The fund rules entitled the fund to withhold retirement benefits for not

more than 12 months. The bank instructed the fund to do so, pending the

outcome of an investigation into the former bank manager`s misconduct, and

the fund withheld R500 000. During the 12 month period, the bank took

further steps to recover the money. Only after the 12 months had lapsed, did

the bank issue summons against the manager.

Murphy says it was acceptable for the bank to instruct the fund to withhold

the money, because the amount it alleges it had lost as a result of the bank

manager`s actions, was almost R6 million, which is a substantial amount, and

more importantly, the rules of the fund allowed it.

But, Murphy says, the bank was not entitled to hang onto the money for

longer than the 12 months stated in the funds rules. This was sufficient

time for the bank to have pursued recovering its loss. Because the bank did

not take steps in the 12 months, it lost the advantage of withholding the

benefit. He ordered the fund to pay the former manager the money.

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