When Damion left his previous company, it wasn’t in a good way. In what he thinks is their way of ‘getting back’ at him, the company refused to give him a copy of the withdrawal notification form. Without that form he can’t access the provident fund money that he accumulated while working there. AZIKHIPHI! That’s not on! Damion’s former employer is bound by the fund rules to submit the completed claim forms to the fund administrator. If they don’t, they are in breach of the fund rules and can get into trouble. Scorpion Legal Protection discusses what Damion can do and why his former employer is wrong not to submit the claim form.

Scorpion Legal Protection’s advice

It’s the duty of the fund trustees (person or firm that holds and administers assets for the benefit of a third party) to ensure that the fund complies with the rules, so Damion needs to inform the trustees that his former employer is not signing and submitting the claim form. He can send a registered letter to the trustees informing them that the employer is preventing him from claiming his money.

He should also send a copy of the letter to his former employer’s head of HR, head of finance or other relevant person by e-mail, so that they are aware that he has taken this step.

If the company still does nothing, he can report the matter to the Office of the Pension Funds Adjudicator (OPFA). This organisation handles complaints, and their services are free.

For the OPFA to investigate a complaint against a provident fund organisation, the complaint must be submitted in writing, and the fund must be registered with the Financial Sector Conduct Authority (FSCA). You can complete a complaint form in person or online at https://www.pfa.org.za and return it along with a copy of your ID and proof of fund membership (benefit statement and/or salary slip) and any other documents relating to your complaint.

There are, however, certain situations where an employer is entitled to withhold an employee’s pension/provident fund. An employer may put a hold on paying out if there is a pending criminal investigation or a court case against you. An employer can make a claim against the employee’s fund if:

• The employee owes the employer money, or the employer has paid money on the employee’s behalf that the employee needs to pay back
• The employer paid the employee an amount to which the employee was not entitled
• The employer incurred a loss due to an employee’s theft, fraud, negligence or any misconduct on the employee’s part, which the employee has admitted to in writing, or which has been proved in a court of law

Tips:

• Make sure you submit all the documents needed by the OPFA to handle your complaint. If you miss something, it will just take longer for them to deal with your complaint and, ultimately, for you to get your money.
• Make sure you submit your complaint within 3 years of the incident arising, because according to the Pension Funds Act, after 3 years, complaints in relation to a debt will prescribe – which means you can no longer take any action against your employer about it.

If you have a query, follow us on our Facebook page and ask your question during our next Live Q&A (every first Thursday of the month).

* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.