HOW CAN AN EMPLOYEE GET HIS OR HER EMPLOYER TO PAY UNPAID SALARIES?

HOW CAN AN EMPLOYEE GET HIS OR HER EMPLOYER TO PAY UNPAID SALARIES?

Q:  CAN AN EMPLOYER REDUCE AN EMPLOYEE’S SALARY UNILATERALLY?

A:  It is illegal in terms of Section 34 of the Basic Conditions of Employment Act for an employer to make a deduction from an employee’s salary without consent or without following a fair procedure. A salary is a contractual right. Reducing it without consent is indeed a breach of contract.

Q: HOW CAN AN EMPLOYER NOT PAY A SALARY?

A:  The employer would first need a valid reason to reduce or not pay the contractual salary. The employer should consult with the affected employees to get their consent to the non-payment.

Q:  WHAT CAN AN EMPLOYER DO IF AN EMPLOYEE REJECTS A REDUCTION OF NON-PAYMENT OF SALARY?

A:  The option available in this regard is for the employer to proceed with a Section 189 Notice of Possible Termination of Employment. The employer would have to show that there was a valid operational reason to cut costs by freezing salaries during a period of financial hardship

Q:  WHAT CAN EMPLOYEE DO IF AN EMPLOYER REDUCES OR FAILS TO PAY A SALARY WITHOUT CONSENT?

A:  The employee would follow the internal grievance procedure. If unsuccessful, the second step would be to consider the legal options.

Q:  WHAT ARE THESE LEGAL OPTIONS?

A:   OPTION 1

To report your complaint to a labour centre. However, this option is only available to employees who earn less than the BCEA salary threshold of R 211,596.30 per year or R17,634 per month.

OPTION 2

Refer a constructive dismissal case to the CCMA. To get around this, the employee could consider resigning and referring a constructive dismissal dispute to the Bargaining Council or CCMA. The CCMA will have jurisdiction to deal with unpaid salaries if the employee succeeds in proving that there was a “dismissal”.

OPTION 3

LABOUR COURT

The Employee could go to the labour court to claim payment of unpaid salary. The court has jurisdiction to deal with disputes about non-compliance with the BCEA such as illegal deduction or reduction in salary.

OPTION 4

MAGISTRATE COURT

A claim for unpaid salary is a civil claim. This give Magistrate’s Court the jurisdiction to deal with the case. Be that as it may, this is the least favourable option. The challenge about this option is that the civil procedure is complicated and it would take a long time to conclude the case due to backlogs.

USEFUL TIP:

An employee should first use the internal communication and grievance procedures of his or her employee to recover the unpaid salaries before considering the other options.

For more information on your legal rights as an employer or employee, kindly contact Duvenage Attorneys and our team of Labour Lawyers will gladly assist you.