Employers have legal and moral obligation to pay on time
As the economy builds again, we find many employers struggling with timeous payment of salaries.
I’m receiving many queries from employees, trade unions and advisers telling me that their monthly or weekly payments are often paid late, leading to all sorts of problems.
Payment of a salary is governed by the Basic Conditions of Employment Act (BCEA) and is outlined under Section 32. The legislation prescribes that an employer must pay an employee any remuneration in South African currency, daily, weekly, fortnightly or monthly and in cash or by direct deposit into an account designated by the employee.
If the remuneration is paid in cash, it must be personally given to each employee at the workplace or at an agreed place. Payment must take place during working hours and in a sealed envelope which becomes the employee’s property.
Importantly, the employer must not pay later than seven days after the completion of the period for which the remuneration is payable or the contract’s termination. This means an employer has some leeway as at the end of the month.
However, most employers have the payment governed by a letter of appointment or contract of employment and they must pay timeously, otherwise there will be a breach of legislation.
Every employer must give information to each employee in writing every time the employee is paid with regard to a) the employers name and address; b) the employees name and occupation; c) the period for which the payment is made; d) the employees remuneration in money; e) the amount and purpose of any deduction made from the remuneration; f) the actual amount paid to the employee; g) the calculation as to how the monies were made up.
An employer may not require or accept any payment by or on behalf of the employee or potential employee in respect of employment or the allocation of work to any employee. The employer may also not require or demand that any employee purchase any goods, product or services from the employer or from the business or any person nominated by the employer.
No deductions may be made, unless the employee agrees, in writing, to the deduction in respect of a debt specified in the agreement or the deduction is required or permitted under the law, collective agreement, court order or arbitration award. There are certain exceptions where a deduction can be made to reimburse an employer if the loss or damage occurred in the course of employment and was due to the fault of the employee.
However, the employer must follow fair procedure and must give the employee a reasonable opportunity to show why the deduction should not be made.
The total amount of the debt must not exceed the actual amount of the loss or damage. The total deduction from the employee’s remuneration cannot exceed a quarter of the employee’s remuneration in money. Any deduction in respect of any goods purchased by the employee must specify the nature and quantity of the goods.
Interestingly, an employer may not require or permit an employee to repay any remuneration, except for overpayments previously made by the employer resulting from an error in calculating the employee’s remuneration.
An employer may deduct certain monies from the employee’s salary for benefit funds such as pension, provident, retirement, medical aid or a similar fund. The deduction must be paid over to the fund within seven days of the deduction being made.
Often an employee’s remuneration fluctuates, especially the employees who receive commission and or work overtime. This remuneration creates some problems but is normally seen as an overall amount that the employee earned over the past 13 weeks.
Every employer must keep a record for a period of three years from the date of the last entry in the record of employees name, occupation, remuneration, time worked and any other prescribed information.
In essence, employers must be aware that most of our workforce live from pay cheque to pay cheque. It is reckless and illegal to pay late. Most employees do not have any other source of income and most employees have dependants beyond the nuclear family. The salary received is invariably desperately needed by the end of that work period. The timeous payment therefore is not only a legal duty but a moral one.
* Michael Bagraim is a labour lawyer. He can be contacted at [email protected]
** The views expressed here are not necessarily those of Independent Media.
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