Can restaurant managers take your tips?

Cape Town - The introduction of a sectoral determination for the hospitality sector has ensured that all employees in the industry are paid at least the minimum wage, but does not stipulate how tips should be regulated.

The legality of managers withholding waiters' tips has come into the spotlight, after Fin24 received an email from a user stating that the manager at the restaurant where her daughter works had kept the tips she received from patrons.

The user said her daughter was shocked when she noticed on her first day of employment at a North West restaurant that the manager had taken a portion of her tip. She decided to remove her tips from the bill the following day.

"When she kept her tips to herself, the manager was furious, and threw the bill at her," the user said.

The user also alleged that some restaurant managers take a portion of waiters' tips to make up for the salaries they have to pay since the implementation of a minimum wage.

Thembinkosi Mkalipi, chief director: labour relations at the department of labour said deducting a portion of a waiter’s tips is not illegal, but that it can constitute an unfair labour practice if the employee was able to keep her tips previously.

"For decades waiters and bar staff had to rely on gratuity of customers for most if not all of their income, but since the implementation of sectoral determination for the hospitality sector, employers have had to pay their staff a minimum wage."

This regulation however does not include tips, Mkalipi said.

According to Mkalipi, the minimum wage for waiters is determined by the number of staff an enterprise employs  - a business with 10 or fewer employees pays less than an enterprise with more staff members.

"The minimum wage applicable to an employer that employs 10 or less employees is R12.39 per hour and for an employer that employs more than 10 employees, it is R13.81."

These wage rates are applicable from July 1 2013 to June 30 2014.

Reporting unfair labour practices

Mkalipi said that if there is a dispute about an unfair labour practice, the employee may report it to the Commission for Conciliation, Mediation and Arbitration in writing.

"If the employee can prove that the practice constitutes an unfair labour practice, and when the arbitrator finds that it is indeed an unfair labour practice, the employer may be ordered to pay the money owed to the employee," he said.

Trade union federation Cosatu earlier this year said ideally no worker should be paid less than R4 500 a month.

- Fin24

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