This issue comes up quite often, especially in the contractor industry. The main reason for this is usually because the main contractor who appointed the employer did not pay on time, and subsequently, salaries were paid late by the employer.
Often employees will refuse to work, claiming that they have not received their salary as stipulated in their contract of employment, and for this reason, they won’t continue working. This article will shed some light on what the employees are allowed to do in this instance and how the employer can react accordingly.
Firstly, the options for employees will be split into two categories, for those earning above and below the earnings threshold set out by the Minister of Labour, currently standing at R211 596.30 per annum.
Employees earning above the threshold:
These employees do not have as much recourse and basically can do one of the following two options:
- Resign and refer a constructive dismissal case to the CCMA or relevant Bargaining Council, and then claim unpaid salaries along with their claim for constructive dismissal or;
- Refer the matter to court. Now there are various courts to refer the matter to:
- Labour Court, claiming unpaid salaries as stipulated in section 157 of the LRA (Labour Relations Act), giving the court jurisdiction to deal with a breach of contract dispute which does not also involve a claim for unfair dismissal;
- Small Claims Court, Magistrate’s Court or High Court, as this will be a civil claim for monies owed based on a contract, any of these courts can be approached, keep in mind the claim threshold stipulated by each court respectively.
Employees earning below the threshold:
These employees have a few more options at their disposal. Along with the two options as set out above, they also have the following to choose from:
- File a complaint at the labour department claiming unpaid salaries. The labour department will appoint an inspector to investigate the matter and decide on the way forward after consultation with the employer;
- Refer the matter to the CCMA in terms of section 73A (4) & (5) of the BCEA (Basic Conditions of Employment Act), which now gives the CCMA jurisdiction to deal with unpaid salary disputes for employees earning below the threshold as set out above.
Section 32 of the Basic Conditions of Employment act subsection (3) also states the following:
An employer must pay remuneration no
later than seven days after-
- the completion of the period for which the remunerationis payable; or
- the termination of the contract of employment.
The advantage of the employer knowing the above is, should the employee conduct themselves outside the scope of the above channels available to the employee, for example, refusal to work, this can be dealt with by way of disciplinary procedures for misconduct by the employee.
Should you ever find yourself in this unfortunate position of having to pay salaries late, we advise that you inform all the employees to be affected and explain to them the reasons behind this. Should an employee refuse to render services based on this, you may take disciplinary steps against said employee.
Contact your SEESA Labour Legal Advisor to assist your business with any employment contract queries you may have. Alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About the author:
Leonard Nieuwoudt is a Multi-Product Legal Advisor at SEESA’s Polokwane Branch. He is an Admitted Attorney with an LLB degree and BCom Business Management degree, both obtained from NWU.
Resources
- Labour Relations Act of 1995
- Basic Conditions of Employment Act of 1997