By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
The Basic Conditions of Employment Act (BCEA) entitles employees to certain minimum rights as regards their terms and conditions of employment. These rights include, amongst others the right to be remunerated for work done, be given vacation leave, sick leave, maternity leave and family responsibility leave, be paid for overtime worked, lunch breaks, weekly and daily rest periods, night work allowances, public holidays, salary advices and written terms and conditions of employment.
The Department of Employment and Labour (DOEL) is required (with the help of the courts) to enforce this legislation unless the employee in question does not fall under the BCEA’s protection because, for example, he/she earns above the BCEA threshold or (in some cases) is a senior manager.
The DOEL employs Inspectors who are required to investigate complaints against the employer and also to carry out routine inspections of the employer’s labour law compliance. Such inspections may be carried out without advance notice and without a warrant (unless the inspection is at a private place of residence). Where the inspector finds that the employer is guilty of, for example, not paying employees for overtime worked, the inspector may issue a Compliance Order that may be enforced by the Labour Court.
Where the employee does not fall under the protection of the Department of employment and Labour (e.g. due to his/her seniority or salary level), he/she may be able to refer any dispute relating to his/her employment contract directly to the Labour Court.
Too many employers are either unaware of the provisions of the BCEA or intentionally flout it. For example, it is a common practice for employers of commission earners to withhold payment of commissions from employees who resigned after the commission was earned. The rationale for this is that ‘the employee was no longer with us when the client paid the invoice and therefore is not entitled to the payment’.
In the case of Solidarity obo Van Rensburg vs Stallion Security (Lex Info 1 December 2025. Labour Court case number JS33/24) a salesman left the employer after having made several sales. The employer refused to pay him his commission because he had left the company before the clients had paid for the items sold.
In the Labour Court the employer stated that it was an industry norm not to pay commission to employees who had left the company. The Court rejected this excuse because, firstly, the employer had failed to prove that it was an industry norm. Secondly, even had the employer provided such proof, this excuse would only be valid if the industry norm had been shown to be “… universally and uniformly observed within the particular trade concerned, long established, notorious, reasonable and certain, and not to conflict with positive law.” Even then such an industry norm would need to have been included explicitly or implicitly in the contract. As none of these requirements had been met the employer could not rely on its ‘industry norm’ excuse.
The Court therefore ordered the employer to pay to the employee R89262.84 in commission, interest on this amount and the employee’s legal costs.
Employers that wish to avoid such costly court cases need to ensure that they train their decision makers on the requirements of remuneration law.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
