Since the first covid case was reported and the country placed on different lockdown levels, both employers and employees have found themselves in great financial difficulties. Let us have a look at employees’ unpaid/ late paid salary, what does the law say?
Section 32(3) of the Basic Conditions of Employment Act (“BCEA”), employers are obligated to pay employees’ salaries and provides for the following:
(3) An employer must pay remuneration not later than seven days after –
(a) the completion of the period for which the remuneration is payable; or
(b) the termination of the contract of employment.
- What happens then if after seven (7) days, the employer has still not paid the employees’ salary?
- The employee needs to take action, firstly they must approach their employer to enquire about late salary payment and also ask as to when salaries are likely to be paid.
- If this internal procedure fails, the employees can then approach the Department of Labour, (if the salary is less than R211 596.30 per year or R17 634 per month and are not in senior management position).
- The Department of Labour will appoint an inspector to investigate the complaint, correspond with the employer and most likely issue the employer with a compliance order ordering that payment plus interest on the overdue amount be made by a certain date [See section 75 of the BCEA with regards to interest payment].
- The employee can also approach the CCMA for unpaid salary dispute, if the salary falls within the above said threshold, this is available where the employee is still within the employment of the employer [See Section 73A (4) & (5) of the BCEA].
- That is because the CCMA does not have jurisdiction to deal with a breach of contract dispute, ie, unpaid salary if there is no dismissal confirmation, where the employee resigned and / or was dismissed, they can refer the dismissal to the CCMA and claim unpaid salaries.
- Failure to pay employee salaries amounts to contractual breach and is a civil claim, and the employee can also approach the courts, Small Claims Court, District Magistrate Court, Regional Magistrate Court, High Court, depending on the amount claimed.
- It should be noted that the Labour Court has both jurisdiction for both unpaid salaries and breach of contract, [See Section 77 of the BCEA and Section157 of the Labour Relations Act].
- Also, employees should not refuse going to work because they were not paid, that can lead to them being called for a disciplinary hearing and be dismissed. In the event that the employee does not have transport money because salaries have not been paid, they must advise their employer of same and request to work from home, if that option is available, alternatively ask the employer to present transport for that period.
