X is employed as a cleaner at Wash N’ Rinse (Pty) Ltd (“the employer”). X earns R8000.00 per  month. Despite rendering her services for the entire month of September 2019, X’s employer fails and/or neglects to pay X’s salary despite it being due. X refers the dispute to the CCMA claiming her outstanding salary. Does the CCMA have jurisdiction to deal with X’s dispute? If not, should X institute a civil claim (i.e. Magistrate Court and/or Labour Court and/or Small Claims Court etc.)?

ANSWER:

n terms of section 73A(1) of the Basic Conditions of Employment Act 75 of 1997, as amended (“BCEA”), “…an employee or worker … may refer a dispute to the CCMA concerning failure to pay any amount owing to that employee or worker in terms of … a contract of employment…” The aforementioned provision does not apply to employees or workers earning in excess of the threshold prescribed by the Minister, being R205 433.30 per annum. Taking into consideration the facts: X earns below the threshold and the amount which is due,
being X’s salary, is derived from X’s contract of employment. It follows that section 73A(1) is applicable and X can refer the dispute to the CCMA. The CCMA will conciliate the dispute. In the event that conciliation fails, and after certifying that the dispute remains unresolved, the CCMA will immediately arbitrate the dispute (Con-Arb).

X would have had to institute the claim in either “…the Labour Court, the High Court or, subject to their jurisdiction, the Magistrates’ Court or the small claims court” if she earned above the threshold [See: section 78A(3) of the BCEA].