When can an employer not pay an employee, and what can an employee do if an employer simply does not pay them? In this article we have a look at these circumstances to keep employers and employees in the clear.
First off, it is important to remember how employer-employee relationships are governed. These relationships are regulated by 1) the agreement entered into, typically the employment contract, and 2) other sources like Sectoral Determinations and Main Collective Agreements.
These documents will determine what’s fair game, and what not. It is important that these documents are in line with the Basic Conditions of Employment Act (BCEA), of course. When it comes to remuneration, the BCEA provides the minimum employment terms.
First, look to the BCEA
The Basic Conditions of Employment Act (BCEA) stipulates the minimum employment terms between employer and employee concerning the payment and receipt of remuneration.
Section 32(3) specifically states that an employer must pay remuneration to his employees not later than 7 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 monthly, 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.
When may an employer deduct money?
An employer may not deduct any monies from an employee’s remuneration unless the employee agrees to such deduction and if such a deduction constitutes damages caused by an employee, only if:
- The loss occurred in the course of the employee’s employment and was due to the fault of the employee.
- The employer followed fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made.
- Such deduction may not exceed a quarter of the employee’s remuneration.
What if the employer isn’t paying an employee?
Employees who fell victim to 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.
- Referring the matter to their Trade Union for negotiation. You can read More on the advantages and disadvantages of Collective Bargaining here.
- Proceeding with litigation for the recovery of same, although heed should be taken of the time it may take and the legal costs involved.
- In the event of the non-payment of salaries and wages constituting a constructive dismissal, approaching the the Commission for Conciliation Mediation and Arbitration (CCMA).
It is important to remember that the agreements in place, guided by the BCEA, will ultimately determine what is legal and what not. However, these guidelines should provide a good starting point to determine whether unpaid salaries or wages are within the scope of the law, or not.
