With the lockdown enforced upon employers, a rising concern was that employees making statements to one another about certain payments received or not. This raises the question; can an employee disclose to their fellow employees (or a trade union) what he/she had been paid? The answer is obvious – Yes. Section 78 of the Basic Conditions of Employment Act (BCEA) as amended, gives the following provisions:
- 78 (1) Every employee has the right to-
- Make a complaint to a trade union representative, a trade union official or a labour inspector concerning any alleged failure or refusal by an employer to comply with this Act or the National Minimum Wage Act, 2018;
- Discuss his or her conditions of employment with their fellow employees, his or her employer or any other person.
It has already been settled in the case of Schoeman & another v Samsung Electronics SA (Pty) Ltd (1997) 18 ILJ 1098 (LC) that salaries/remuneration always form part of conditions of employment so there can be no debate whether the section in question does apply to salaries specifically or not.
We are often confronted with this problem. The concern received from employers is that the employee disclosed their salary or TERS payments to their fellow employees, which led to great disharmony in the workplace and threats of possible industrial action. It has left employers feeling helpless, but employers are not. The following must be considered:
- Was the information true?
This right of the employee given by the BCEA does not protect any employee who shares information, which is incorrect or fraudulent. Giving false evidence, making a false statement or gross dishonesty are severe offences and in some cases may warrant a first – time dismissal. A practical example is an employee who finds a mistake on his payslip. His first reaction is to cry “unfair treatment”, a policy stating all employees with disputes about their salaries must approach management within seven days, is likely to prevent this incident.
- Did the employee act in good faith?
In the court case of Bethape v Public Servants Association and Others (J1709/2016) [2016] ZALCJHB 577 (9 May 2016) the court dealt with a protected disclosure made by an employee, the court was clear regarding the necessity for an employee seeking protection from the law to act in good faith and, without good faith shown, cannot demand protection. Therefore, employees who threaten to disclose his salary to other staff, in order to gain from the employer are not acting in good faith. This also extends to employees becoming insolent or insubordinate, as was seen in the case quoted.
- Can an employee take another employee’s payslip and disclose to all staff?
No, this action can be prohibited with strict policies or contract provisions. The provision is clear that the employee can disclose their salary only. It does not extend to an employee taking another employee’s payslip and showing it to all employees. This could be considered a breach in confidentiality.
- Can an employee disclose information to a former employee?
Yes, they can. Firstly, Section 78(1)(b) states disclosure to “any other person” and considering the fact that Section 79(1) of the BCEA which specifically provides protection to employees rights given by the BCEA (such as the rights given under Section 78 states that for protection purposes the term “employee” does include former employee. There is, therefore, no reason to think an employee disclosing his/her salary to a former employee is not protected.
- Can I make a rule or contract provision to prohibit employees from disclosing their own salaries to others?
No, this will be prohibiting an employee from exercising his right given by the BCEA and therefore prohibited to be done by Section 79(2) of the BCEA.
- Can I discipline an employee for discussing his salary with other employees?
No, this is also prohibited by Section 79 of the BCEA as it protects employees from being prejudiced for making disclosures under Section 79(2)(c)(ii).
A simple question can be asked, and the answer to the question shows why the law is giving this protection. The question – would it make sense to give employees the legal framework of equal treatment, protection for making protected disclosures of employers non-compliance and penalties for employers not complying with various legislation if the employee cannot discuss his/her salary with other employees to find these non-compliances or unfair treatment? Clearly, the answer is No, and therefore the protection is given.
Contact your nearest SEESA Office with your labour-related queries, alternatively, leave your contact details on SEESA’s website.
About The Author:
Andries Lerm is a Senior Legal Advisor with an Honours Degree in Employment Relations (Industrial Relations) from the North-West University (Potchefstroom) and has approximately eight years of service with SEESA.
References:
Case Law
- Schoeman & another v Samsung Electronics SA (Pty) Ltd (1997) 18 ILJ 1098 (LC
Legislation
- Basic Conditions of Employment Act 75 of 1997 (as amended)
Websites
- L Salt Employees cannot contract out of right to disclose salary information https://www.labourguide.co.za/most-recent/1845-employees-cannot-contract-out-of-right-to-disclose-salary-information#:~:text=Employers%20may%20prohibit%20employees%20from,conduct%20contravenes%20a%20workplace%20rule (Last Visited 2 February 2021)
- L Salt (2013) You can’t prevent your employees from talking about their salaries http://www.hrpulse.co.za/recruitment1/contracts/230328-you-cant-prevent-your-employees-from-talking-about-their-salaries (Last visited 2 February 2021)