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Thread: Labour/Salary question

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    New Member Leigh's Avatar
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    Labour/Salary question

    Good Day

    I have a question, I was employed at a legal company from November last year.
    I was never given a contract to sign, and I was not paid a salary or even provided with a salary advice.
    I resigned at the end of January as I could not continue working without pay.

    I would like to know how I can go about getting my money out of this guy, one other former employee has already gone to the labor department and the ccma but this guy has not paid.

    Can I not proceed on the basis of constructive dismissal?

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    Diamond Member Justloadit's Avatar
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    Welcome.

    You said it was a legal company, I am assuming that it is to do with some type of law - It sounds as if you have a problem, with no proof you actually worked there, and being a legal company they probably have covered their tracks. The fact that you pitched up every day to work is not proof that you were employed. It could have been construed as voluntary work by the company, and there is no way to disprove it.
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    Diamond Member Vanash Naick's Avatar
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    Good afternoon Leigh,
    1. There are two pieces of legislation(aka statute, aka act of parliament) that govern your matter. The first is the Labour Relations Act 66 of 1995(as amended) and the second is the Basic Conditions of Employment Act 75 of 1997(as amended);
    2. There are two legal bodies involved in your case: 1: The CCMA or Labour Court with regards to constructive dismissal and unfair labour practice and 2: The Department of Labour which regulates employer’s compliance with the Basic Condition of Employment Act;
    3. Traditionally one would have had to advise you to go to the department of labour for the salary matter, however the Labour Relations Act underwent revamping and now includes “unfair labour practice” and not only dismissal;
    4. Section 186(2)(a) reads as follows:-
    “Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving -
    (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;”
    5. The payslip and also the salary matter can be addressed by the department of labour;
    6. Section 32(3)(a),(b) of the BCE reads as follows:
    “An employer must pay remuneration no 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.”


    7. The constructive dismissal matter: The LRA section 186(1)(e) reads as follows: dismissal means “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”
    8. My advice: Constructive dismissal is very difficult to prove. The onus is on you to prove that a constructive dismissal has taken place whereas normal dismissals, the onus is on the employer to prove that the dismissal was fair. In proving constructive dismissal you will have to prove that working conditions and treating by the employee of you was so unbearable and intolerable that you had no alternative whatsoever but to leave work. It could be argued that how bad could things have been in only 2 months. Further where employees shoot themselves in the leg with constructive dismissal is that they provide a resignation letter that sates something along the lines of , “ I resign with immediate effect, thank you very much for everything.” In genuine constructive dismissal cases the employee doesn’t even give a resignation letter because the conditions were just so unbearable;
    9. The unfair labour practice: Yes, you have grounds, you can decide which dispute resolution body you want to use, as stated traditionally the department of labour dealt with salary related matters, but since the LRA now states that an unfair labour practice includes conduct relating to provision of benefits and clearly salary is a benefit , you can either download or pick up a 7.11 form from the ccma and serve on employer then on CCMA.
    10. The contract matter: contracts can be verbal or in writting
    Just for your further information this is what the BCA says about remuneration:-
    “Payment of remuneration
    32.(1) An employer must pay to an employee any remuneration that is paid in money-
    (a) in South African currency;
    (b) daily, weekly, fortnightly or monthly; and
    (c) in cash, by cheque or by direct deposit into an account designated by the employee.

    (2) Any remuneration paid in cash or by cheque must be given to each employee-
    (a) at the workplace or at a place agreed to by the employee;
    (b) during the employee's working hours or within 15 minutes of the commencement or conclusion of those hours; and
    (c) in a sealed envelope which becomes the property of the employee.

    (3) An employer must pay remuneration no 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.

    (4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund.
    Information about remuneration
    33.(1) An employer must give an employee the following information in writing on each day the employee is paid -
    (a) the employer's name and address;
    (b) the employee's name and occupation;
    (c) the period for which the payment is made;
    (d) the employee's remuneration in money;
    (e) the amount and purpose of any deduction made from the remuneration;
    (f) the actual amount paid to the employee; and
    (g) if relevant to the calculation of that employee's remuneration-

    (i) the employee's rate of remuneration and overtime rate;
    (ii) the number of ordinary and overtime hours worked by the employee during the period for which the payment is made;
    (iii) the number of hours worked by the employee on a Sunday or public holiday during that period; and
    (iv) if an agreement to average working time has been concluded in terms of section 12, the total number of ordinary and overtime hours worked by the employee in the period of averaging.

    (2) The written information required in terms of subsection (1) must be given to each employee-
    (a) at the workplace or at a place agreed to by the employee; and
    (b) during the employee's ordinary working hours or within 15 minutes of the commencement or conclusion of those hours.”


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    Platinum Member sterne.law@gmail.com's Avatar
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    Constructive dismissal is not the easiest matter to win, because of gathering evidence and witnesses. However the chances improve SLIGHTLY, where money is an issue, as this offers evidence in itself.

    http://naickersterne.blogspot.com/20...dismissal.html
    Anthony Sterne

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    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Diamond Member Vanash Naick's Avatar
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    Anthony is exactly right!!!!
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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    Site Caretaker Dave A's Avatar
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    Just asking to cover all possible bases.

    Was the paying of a salary discussed when you were employed?
    Was a salary amount agreed to, at least verbally?
    When you enquired about the non-payment of salary, what was the response?

    If anyone thinks these are strange questions, I've seen some strange stuff done in the name of "learnerships" and "workplace experience".
    The trouble with opportunity is it normally comes dressed up as work.

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    New Member Leigh's Avatar
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    Hi All

    Thanks very much for the information, it is really helpful and insightful.

    Dave in respect of your questions, yes our contract was verbal, the very same verbal contract was entered into with 7 other employees as well at the same time, the only difference being they left at the end of November when they didn't get paid. I stayed on for a further 2 months.

    The salary amount was agreed upon and his HR person was present at the time.

    As to why he has not paid, his explanation was simply that he has no money!

    It seems the more effective or least time consuming route would be the unfair labor practice and not the constructive dismissal?


    Quote Originally Posted by Dave A View Post
    Just asking to cover all possible bases.

    Was the paying of a salary discussed when you were employed?
    Was a salary amount agreed to, at least verbally?
    When you enquired about the non-payment of salary, what was the response?

    If anyone thinks these are strange questions, I've seen some strange stuff done in the name of "learnerships" and "workplace experience".

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    Platinum Member sterne.law@gmail.com's Avatar
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    I am not sure you will find cause for an unfair labour practice which has very specific grounds. The second part is that the Commissioners are loath to make good awards of compensation for ULP where the employee has resigned. You could get it under ULP if you claim to have been suspended.

    Constructive dismissal - you are probably better off than you think. There is the financial element and you have witnesses, which helps.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    New Member georgevorster's Avatar
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    Hi Leigh
    It is disgusting that such employers exist, and sometimes we as HR practitioners and employers question the need for the plethora of legislation and regulations that govern employment in South Africa and which cause us endless challenges, until one sees cases like this, when it becomes easier to understand the need.

    What are your options?

    The path of constructive dismissal through the CCMA is challenging, but you could probably convince the Commissioner that your working circumstances had become intolerable as a result of you not being paid, and thereby "win" your case. However, what remedy would you want if you succeeded with your case? Reinstatement? Why would you want to go back? Financial settlement? What is the use of that if he does not have money?
    Enforcing the payment of the award through the CCMA also poses its own problems!

    The award could also go against you in the end, so it is not without risk to you.

    The same applies if you refer your matter to the CCMA as an unfair labour practice. Recent cases have indicated that salary is a "right" and may be considered as a "benefit" in terms of the LRA, but you would have to show that the CCMA has jurisdiction to hear your matter, and this would entail proving that you had such a right, which could be difficult considering that you do not have a written contract.

    A verbal contract is binding, but can you prove that such a contract was entered into, and what the terms and conditions were? If you cannot lead evidence to this effect you have a problem because his cohoots will fabricate their evidence to suit their employer. Were the other 7 persons all present at the same time? Will they be prepared to testify? For the evidence to be acceptable it cannot be hear-say.

    His admission that he had no money to pay you could count in your favour, because he has in fact thereby admitted that he is indebted to you. Can you prove that he said so?

    Even so, let's assume all this is done and the award is in your favour. What then? Same options as above!

    The employer, seeing that he is in the legal profession, would also be aware that if the award was made against him, there are options for him to draw the case out for ages by taking the award on review etc., and once this goes to the labour court (? 6 months later) it is going to cost you a packet to oppose, and probably would not be worth your while. Attorneys using this strategy also know that in many cases the employee tires or goes broke, and gives up in the end. The real vultures then even go so far as to try to recover their costs from you when you give up!

    Another avenue available to you is to try to work through the labour department, for what it is worth.

    Lastly, you could pursue a civil case for damages. This is costly, and the onus of proof would be on you. Bankrupting him to get what is owed to you if he pleads poverty can also be considered, but will cost you.

    Maybe that is why the employer does what he does. He probably knows that most will consider their options, and choose to walk away, with an expensive lesson in life the only benefit they take from the experience.

    At the risk of being sued you could go to the press. This might jolt the employer into reality, and he may make you an offer, especially if your article draws responses and support from others who share your experience. Again not without risk!

    Bottom line - No easy solution for you.
    Good luck

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    Leigh (23-Feb-12)

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    Diamond Member Vanash Naick's Avatar
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    I must agree with my learned colleague Anthony! That being said, there is another 'out of the box' way forward, you may not get money out of it but you will certainly get justice:
    Report him/her to the relevant law society for unethical behaviour. His/her behaviour is not the behaviour one would expect from an attorney. An attorney must conduct himself ethically in all matters!!!
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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