Employer’s Failure To Pay Your Salary.
We have been inundated with queries as to what one can do if an employer, upon the termination of employment, refuses to pay your outstanding monies such as:
• Outstanding salaries;
• Leave pay
• Notice pay
• Severance pay
The long and the short of it is that you will have to take some form of legal action. Alternatively if you earn less than the statutory threshold of R149 736.00 per annum, you can go to your nearest Department of Labour and lay a complaint of non payment.
The CCMA does not have jurisdiction to hear matters on non payment of salaries. The only issue of non payment the CCMA has jurisdiction for is the entitlement to severance pay, and a dispute in this regard can be referred to the CCMA.
1. Department of Labour
As indicated above the Department of Labour can only assist if you earn below the threshold. If you do qualify, a complaint must be lodged with a labour inspector at your nearest Department of Labour. Your complaint will be investigated and the employer contacted by the inspector. The inspector will issue the employer with an instruction to pay by a certain date. If the employer still fails the inspector will advise on what further action must be taken.
2. Labour Court
When your employer fails and/or refuses to pay you outstanding monies that are due to you in terms of the Basic Conditions of employment act (salary, leave pay, notice pay or severance pay) an application can be made to the Labour Court in terms of section 77(3) for an order instructing the employer to pay all outstanding monies. The application is supported by a founding affidavit and it is recommended that you employ an attorney or approach us for assistance in this regard. The employer has 10 court days, after they received the application to respond. If they respond to your claim, the matter will be set down on the opposed motion roll, and if unopposed on the unopposed motion roll. If the court is satisfied that the money is owed to you 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. An application in terms of section 77(3) can only be brought if an unfair dismissal dispute has also been referred to the relevant forum.
3. Civil Court (Magistrate’s and High Court)
If your dismissal was not unfair, but you are still owed monies, you can take recourse against the employer through either the Magistrate’s court, if the outstanding monies are less than R100 000, or the High Court if the outstanding monies amounts to more than R100 000.00. The first step will be to demand payment from the employer by means of a letter of demand. Within this letter of demand the amounts owed must be set out and the employer must be put on terms (given a deadline) by when the monies must be paid. It is advisable that this letter of demand is send by registered post, or hand delivered to the employer to ensure proof of delivery. If the employer still fails and/or refuse to pay the outstanding monies owed, the employer must be summonsed through either the High or Magistrate’s Court as set out above
The summons must be served by the Sheriff for the area in which the employer carries on its business. The employer can then either defend your claim or ignore it. If the employer defends the claim, and does not have a bona fide defence, the court can be approached to grant summary judgement against the employer and to grant an order that the monies must be paid. If the employer ignores your claim, the court can be approached to grant default judgement against the employer and to grant and order that the monies must be paid.
Should the employer, after an order has been granted by the Labour Court, Magistrate’s Court or High Court, still fail and/refuse to pay your outstanding monies, a writ of execution can be issued by the relevant court, instructing the sheriff to sell the employer’s assets to raise the amount plus costs owed to you.
The above is a short summary of the recourses available to you as an employee who has not been paid. Please contact us for further advice, guidance or assistance in getting that money owed to you.
Me. L Bouwer
(LLB, LLM (labour law)).
General Manager: Legal Assistance