As of 01 January 2019 new amendments to the Basic Conditions of Employment Act, specifically Section 73 thereof, came into force which enables employees to directly approach the CCMA regarding issues relating to non-payment of the National Minimum Wage, unlawful deductions and non-payment of statutory monies due either in terms of a contract of employment, sectoral determination or collective agreement.
Before the amendments came into force, such claims for failure to pay an amount owing were mostly dealt with by the Department of Labour. However, since the amendments came into force, the CCMA now has jurisdiction to hear these matters and also provides a much more expeditious outcome to the employee alleging failure to pay an amount owing.
As a consequence, this has resulted in many an employee making a case at the CCMA against their employer in terms of Section 73 alleging that they have not been paid correctly, either in terms of the National Minimum Wage, contract of employment or collective agreement.
Due to this kind of matter being fairly new to all involved, including the Commissioners at the CCMA, it has often been challenging at times for an employer when preparing to defend a matter brought by an employee for alleged monies owing or an employer failing to pay an amount owing. What is interesting to note however is that in Section 73 matters the burden of proof when proving a claim for outstanding monies or non-payment of National Minimum Wage rests squarely on the employee or referring party.
It is, therefore, the responsibility of the referring party to ensure they have all the evidence necessary to prove their claim against the employer. Some such types of evidence may include, payslips, timesheets, contract of employment, bank statements or a collective agreement.
As an employer, when preparing to defend such matters, it is important to ensure that the following is done:
- Ensure that you are in possession of the 7.11 referral form of the Applicant as this will speak to exactly what the Applicant is claiming;
- All payslips, timesheets, proof of payments and contracts of employment are on hand to prove the Applicant has been paid correctly and as per the contract of employment or relevant timesheet;
- Ensure you are familiar with the relevant sectoral determination, if any, the stipulations thereof and any relevant clauses of a collective agreement to which the employer or employee may be a party to;
- In instances whereby an Applicant is claiming an unlawful deduction has occurred, ensure that the relevant documents enabling you to make the deduction in question are at hand. Such documents may include the contract of employment, an acknowledgement of debt or a signed authorisation form authorising the employer to make the deduction
The above list is not exhaustive, but it is a good place from where to begin. It often happens that an Applicant will arrive at the CCMA for their matter without any form of proof to substantiate their claim and will then seek that the Commissioner enforce their claim without the relevant proof. It is therefore of vital importance to always have all the evidence at hand to disprove an employee’s claim and prevent a situation whereby a Commissioner has to make an arbitration award based on two opposing versions of oral testimony from the employer and employee respectively.
What is further of the utmost importance when attending to Section 73 matters at the CCMA is that a representative from the employer, someone with first-hand knowledge of the finances, payroll and contracts of employment of the employer, should be present, even if the employer is represented by an employer’s organisation.
The reason for this is that should the matter not be settled during the Conciliation phase the matter will then immediately proceed to Arbitration. At this stage, it is only someone with first-hand knowledge of the financial status and affairs of the employer, as well as knowledge of the payroll system and how the employee got paid, who can testify on behalf of the employer. The employer’s representative cannot testify on behalf of the employer as this amounts to hearsay evidence and is inadmissible as evidence at this stage of proceedings.
Lastly, once an employer receives a referral from an employee relating to failure to pay any amount owing it is always a useful exercise to attempt to resolve the dispute with the referring employee first, within the company itself and before attending at the CCMA, as it often so happens that it is merely an administrative error that has occurred or it is merely an employee that has incorrectly understood their contract or payslip and a simple explanation can resolve the issue at hand.
Article by: Daniel van der Merwe
Provincial Manager – Port Elizabeth