SALARY OR WAGE – THE RIGHTS OF THE EMPLOYEE
WHAT IS A SALARY OR WAGE?
Salary or Wage – A salary is a fixed regular payment, typically paid on a monthly basis made by an employer to an employee. A wage, on the other hand, is money that is paid or received for work or services calculated by the hour, day, or week.
According to the Basic Conditions of Employment Act No.11 of 2002 (As Amended)(hereafter referred to as “the Act”), “remuneration” means “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State”.
This means that remuneration/salary/wage relates to what is owed to an employee in return for his/her time.
DOES THE EMPLOYEE HAVE A RIGHT TO A SALARY OR WAGE?
Section 32 of the Act states that “an employer must pay to an employee any remuneration that is paid in money;
- In South African currency
- Daily, Weekly, Fortnightly or Monthly
- In cash, by cheque or by direct deposit into an account designated by the employee”.
The employer, in turn, “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.”
This means that the Act creates a right for the employee to be paid his/her remuneration/salary/wage and it creates a period within which that money should be paid.
WHEN CAN THE EMPLOYER DEDUCT FROM THE EMPLOYEE’S SALARY OR WAGE?
The employer cannot make any deductions from the employee’s salary or wage unless the employee has agreed in writing to the deduction or the deduction is required or permitted by the law, collective agreement, court order or an arbitration award.
BUT WHAT ABOUT DEDUCTIONS FOR DAMAGE SUFFERED BY THE EMPLOYER?
The employer can make a deduction from the employee’s salary or wage. However, there are factors to consider:
- The loss or damage must have occurred in the course of employment and be due to the fault of the employee;
- The employer must have followed a fair procedure and must have given the employee a reasonable opportunity to show why the deductions should not be made;
- The total amount of the debt must not exceed the actual amount of the loss or damage; and
- The total deductions from the employee’s salary or wage must not exceed one-quarter of the employee’s remuneration.
WHAT ARE THE EMPLOYEE’S RIGHTS IF THE EMPLOYEE REFUSES TO PAY THE SALARY OR WAGE?
The Commission for Conciliation Mediation and Arbitration (the CCMA) is tasked with resolving all labour related matters. However, the CCMA does not have jurisdiction to hear matters on non- payment of salaries or wages. The only issue of non- payment the CCMA has jurisdiction for is the entitlement to severance pay.
If it so happens that the employer is refusing to pay the employee his/her duly owed remuneration/salary/wage or if there is a dispute in relation to such remuneration/salary/wage the employee can approach the Department of Labour. However, there is an exception. If the employee’s gross annual remuneration/salary/wage is above the legal threshold (i.e. R205 433.30) the employee would have to approach the Labour Court or Civil Courts.
THE DEPARTMENT OF LABOUR
The employee can lodge a complaint with a labour inspector at the Department of Labour. The complaint will be investigated and the employer will be contacted by the inspector. In the event that there are indeed monies rightfully owed to the employee, the inspector will then issue the employer with an instruction to pay by a certain date. If the employer still fails to adhere to the inspector’s instruction, the inspector will advise the employee on what further action he/she can take.
THE LABOUR COURT
The employee can lodge an application at the Labour Court for an order instructing the employer to pay all outstanding monies. After receiving the application, the employer has 10 court days (i.e. Monday to Friday, excluding Saturday, Sunday and public holidays) to respond. If the employer responds, the matter will be set down on the opposed applications roll. If the employer does not respond, the matter will be set down on the unopposed applications roll.
After arguments have been put forward and if the Court is satisfied that, the money is owed and the employer has not paid it, the court will grant an order instructing the employer to pay the outstanding monies by a certain date.
This application can only be brought if an unfair dismissal dispute has also been referred to the relevant forum.
A civil action can be launched in the Magistrate’s or High Court depending on the monetary value of the monies owed. If the remuneration/salary/wage is below R400 000.00 the civil action can be launched in the Magistrate’s Court, and if it exceeds R400 000.00 it would have to be launched in the High Court.
The ordinary course in relation to civil actions would have to be followed. This entails the issuing of summons, service on the employer and a defence being entered.
Basic Conditions of Employment Act 11 of 2002