What do you do if your employer refuses to pay you your salary for work done? Fortunately, this is not a very common problem because most employers are decent and pay their staff correctly. Usually, the problem over non-payment arises when a staff member believes they are entitled to overtime or night shift payment, but the employer sees it differently.
I was recently asked a question relating to salary non-payment by a gentleman we will call PL. As always with questions I receive, I replied directly to PL via E-Mail. However, it did get me thinking that maybe there are others out there in a similar situation who might benefit from the discussion. In this article, we discuss the various options a staff member has if an employer refuses to pay them what they are owed.
My employer refuses to pay me overtime.
To get started with this discussion I will first post the question I received from PL and then my E-Mail reply as I sent it off to him. I will then go slightly deeper into the options someone who is struggling with salary non-payment has.
Question: I have a problem with my company. They don’t pay us as it written on the contract. They don’t pay our overtimes. And i have about one year working for them. So i need my back pay money that they robbed me from day one. We requested meetings together with our management but we never got a reply. Please help us!
Answer: Hi PL,
I am sorry to hear about your problem. It is sad that an employer is taking advantage of staff during this difficult time.
Here’s what you need to do:
1) Firstly you need to try and discuss this matter with your employer. It sounds like you have already done this. I would recommend that you request the meeting in writing so that you have a record of your request. If your employer does meet with you try to discuss the issues in a calm and respectful manner. If your employer does not acknowledge your request or still refuses to pay after the meeting then you need to take it further.
2) You will need to contact the Dept of labour for assistance, not the CCMA. The Dept of labour should assign an investigator to contact the employer and investigate the non-payment. The great thing is this is free, so it will not cost you a thing.
I hope this helps, and please let me know how it turns out.
More on claiming unpaid salaries.
Above is the brief correspondence that I had with PL. Unfortunately, I have not heard back from him yet. However, I hope that he was able to discuss the matter with his employer before having to take further action.
Before I carry on I must mention that I was obviously responding with very little knowledge on the circumstances, or what was actually contained in his contract of employment. I always suggest you consult a labour specialist for more assistance, or clarity to ensure you are taking the correct action.
What to do if your employer refuses to pay your salary.
Section 32(3) of the Basic Conditions of Employment Act gives an employer 7 days grace period to pay their employees. If your salary is more then 7 days late it is recommended you bring the matter to the attention of your employer or senior manager. If they are unable or refuse to assist you you should take further action.
1) Refer the matter to the Department of Labour
Referring the matter to the Department of Labour is going to be your best bet as they will assist you free of charge. Many people make the mistake of first approaching the CCMA for assistance. You will save some valuable time by avoiding this mistake.
Section 70 of the Basic Conditions of Employment act makes it clear that all money-related issues such as unpaid salary, overtime pay, leave pay etc. are referred to the Department of Labour. What’s more, it states that you need to inform the Department of unpaid amounts within 12 months.
This option is not available to senior management or if you earn above a certain threshold. To the best of my knowledge, this threshold is R205443.30 / year, however, this may have been revised.
What is the process?
The process is actually incredibly simple.
After submitting your complaint to the Department of Labour your case will be assessed. If you qualify for assistance the Department will appoint an inspector to contact your employer and investigate your complaint.
If it is found that indeed your employer has failed to pay what is owed in terms of your contract they will issue a compliance order ordering your employer to make the required payment plus interest due.
Payment of interest due
Section 75 of the Basic Conditions of Employment Act makes it clear that an employer must pay interest on any outstanding amounts due.
Other options available for salary non-payment
2) Going to Court
You could also approach the courts if you wish to claim an unpaid salary. Or if you were acting as an independent contractor and not an employee. The amount owing to you would determine which court to use.
If your claim is under R15000 you could make use of the small claims court. This court is free of charge and no legal representation is allowed. If the amount you wish to claim is above R15000 you would need to use the Magistrates court. If this is the case you will need a lawyer to assist you with all the necessary court documents and procedures.
Your employment contract is a legal document binding both the employer and employee to a relationship where one party offers their services (Employee) in exchange for compensation from the other party (Employer).
If either party does not honour their part of the contract the other party has recourse. So if the employer does not fulfil their obligation of remunerating the employee as per the agreement, the employee should definitely seek assistance using the correct channels as soon as possible.
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