In terms of Section 32 of the Basic Conditions of Employment Act, the employer is obligated to pay his/her employees’ salaries.
“(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 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.
(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.”
It is important to note that if the employer fails to remunerate the employee, the employee should preferably place the employer on terms (via Letter of Demand) and give them an opportunity to explain the situation. Reducing the dispute to writing also provides the employee with proof in the event that he/she proceeds to the Department of Labour or even take the matter to the CCMA.
In Solidarity obo Behr v Blue Key Consult (2011) 20 CCMA 6.13.2, the applicant resigned after she was not paid her agreed salary for a period of three consecutive months. The issue in dispute was whether there actually was a dismissal and if so, whether it had been a fair dismissal. It was held that the applicant proved on a balance of probabilities that she had met the requirements to prove constructive dismissal by showing that she is the one that terminated the employment relationship and that her
resignation was as a result of her employer’s conduct and not as a result of her or a third party’s conduct.
In the event that the employee also decides to take the route of a constructive dismissal, it is vitally important to follow correct procedures and use the correct wording in letters to the employer, specifically a resignation letter.