Have you ever faced a situation where your employer failed to pay you what you’re rightfully owed? It’s a frustrating experience, and thankfully, legal frameworks exist to protect employees.
In South Africa, Section 73A of the Basic Conditions of Employment Act (BCEA) plays a crucial role in addressing non-payment disputes. Let’s dive into an overview of recent cases that shed light on how this section works and what you need to keep in mind.
Understanding Section 73A of the BCEA
In 2019, Section 73A was introduced to expand the jurisdiction of the Commission for Conciliation, Mediation and Arbitration (CCMA). This section allows employees and workers earning below a certain threshold (currently R254,371.67 per annum or R21,197.64 per month) to refer disputes to the CCMA when an employer fails to pay amounts owed under the BCEA, National Minimum Wage Act (NMWA), employment contracts, sectoral determinations, or collective agreements. It’s important to note that other non-payment claims outside of these specific areas may not be dealt with under Section 73A.
For those earning above the threshold, claims for non-payment can be taken to the High Court, Labour Court, Magistrates Court, or Small Claims Court, depending on jurisdictional thresholds.
Key considerations for Section 73A claims
Before pursuing a claim, remember three crucial factors.
First, legal representation is generally not allowed at CCMA proceedings for Section 73A disputes, except in limited circumstances as per Rule 25(1)(c) of the CCMA Rules.
Second, you must provide proof that you are entitled to the payment you claim is owed.
Lastly, while there’s no specified timeframe in the BCEA or CCMA Rules, claims must be brought within three years from the date the payment became due, or they may become unenforceable (prescribed).
Recent cases and their implications
Let’s take a look at some recent cases that illustrate the complexities of non-payment claims:
Kgasane v MEC Department of Health: Free State and Another (2025): A retired employee claimed unpaid accrued leave days. Although his salary exceeded the threshold, he approached the Labour Court. The employer argued the claim should have gone to bargaining council arbitration. The court ruled that it had jurisdiction, as Section 73A allows claims based on collective agreements. This case clarifies the Labour Court’s jurisdiction in such matters. Safeguard Chemicals t/a Maris Polymers South Africa v Frydas and Others (2022): A dismissed employee claimed compensation for unfair dismissal and additional claims (outstanding salaries, 13th cheque, and profit share). The CCMA awarded compensation including the additional claims, but the Labour Court overturned the decision, stating the CCMA lacked jurisdiction for claims exceeding the threshold and for breach of contract claims. This highlights the limitations of the CCMA’s jurisdiction. Adapt (Pty) Ltd v Maseko and Others (2023): An employee claimed an unfair labour practice (lack of performance appraisal) and non-payment of a salary increase and bonus. The Labour Court confirmed the unfair labour practice but ruled the CCMA lacked jurisdiction to award the salary increase and bonus, as they were contractual claims. This case reinforces the distinction between unfair labour practices and contractual disputes. Ademulegun v Monothendre (Pty) Ltd t/a GFT Group Fiveways Superspar (2024): An employee claimed unpaid remuneration over eight years. The court ruled that each month’s unpaid wages constituted a separate debt, and claims older than three years had prescribed. This emphasises the importance of bringing claims within the prescription period. Danster v Department of Education: Eastern Cape (2021): A teacher was unpaid for nine months. The Education Labour Relations Council (ELRC) ordered the employer to pay the full remuneration, as no valid reason for the non-payment was provided. This case shows the importance of employers providing valid reasons for non-payment. Hollywood Sportsbook Gauteng v CCMA and Others (2023): The Labour Court set aside a CCMA award for outstanding salary, finding that the commissioner disregarded evidence of overpayments to the employee. This highlights the need for commissioners to consider all relevant evidence.
Mathubela v Bidvest Protea Coin and Others (2023): An employee claimed outstanding backpay after being ordered to be reinstated. The Labour Court upheld the CCMA’s decision that it lacked jurisdiction, as the employee had not provided proof of tendering services and reviving the employment contract. This case clarifies that a tender of services is necessary for a breach of contract claim in reinstatement cases. Nieftagodien v Yikusasa Building Contractors (Pty) Ltd (2024): An employee claimed arrear salaries, but the Labour Court dismissed the claim, finding that the employee failed to prove he was an employee of the respondent. This underscores the need to establish the employment relationship. Nxazonke v CCMA and Others (2022): An urgent application for recovery of remuneration was struck off the roll, as the court found no exceptional circumstances to justify urgency. This shows that financial hardship alone is insufficient for urgent intervention. Prestige Campworld (Pty) Ltd t/a Comet Caravans v Botha and Others (2022): The Labour Court set aside a CCMA award, ruling that the CCMA should have included commission in calculating the employee’s earnings, which exceeded the threshold. This emphasises the importance of accurately calculating earnings for jurisdictional purposes.
Conclusion
These cases illustrate the complexities involved in non-payment claims under Section 73A. Both employers and employees should be aware of these legal nuances to navigate disputes effectively.
Understanding the jurisdictional limitations of the CCMA, the importance of providing proof, and adhering to prescription periods are crucial for a successful claim. Staying informed and seeking legal advice when needed can help ensure that your rights are protected.
