Not Receiving Your Salary
The terms and conditions governing the employment of an employee is regulated by the agreement entered into between the employer and the employee and sometimes even other sources of legislation such as Sectoral Determinations. It should be noted that any employment agreement is subject to the provisions of the Basic Conditions of Employment Act.
The Basic Conditions of Employment Act stipulates the minimum employment terms between employer and employee with regard to the payment and receipt of remuneration. Section 32(3) specifically states that an employer must pay remuneration to his employees not later than seven days after the completion of the period for which the remuneration is payable; or the termination of the contract. When the employee’s salary is paid on a monthly basis the employer must effect payment of the employee’s remuneration within 7 days after completion of the period being the 7th of the following month.
Employees should further note that an employer may not deduct any monies from an employee’s remuneration unless the employee agrees to such deduction and in the event that such a deduction constitutes damages caused by an employee, if :-
The Loss occurred in the course of the employee’s employment and as due to the fault of the employee; and
The employer followed fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made; and
Such deduction may not exceed a quarter of the employee’s remuneration.
Section 191 of the Labour Relations Act, Act 66 of 1995, only confers jurisdiction in respect of dismissals and unfair labour practices on the Commission for Conciliation and Arbitration and is silent in respect of the deductions or unpaid remuneration.
Although the Commission for Conciliation and Arbitration will entertain such disputes it will seldom be successful. You should bear in mind that in the event of an employee resigning due to the non payment of remuneration, it can be considered as a constructive dismissal and therefore falls within the ambit of the the Commission for Conciliation and Arbitration.
Victims of erratic or total non payment of salary and wages are afforded the following remedies :-
-Referring the matter to the nearest branch of the Department of Labour; or
– Issuing suit in Court for the recovery of same, although heed should be taken of the time it may take and the legal costs involved; or
-In the vent of the non payment of salaries and wages constituting a constructive dismissal, approaching the the Commission for Conciliation and Arbitration.