Chapter 6
Problem 2: Employee wants to claim notice pay and leave pay
Faizel lost his job. He was dismissed without any notice and paid no money in lieu of notice. He was also not paid any leave pay that he believes was owing to him. He does not want to get his job back. He only wants to claim the notice and leave money that is owing to him.
WHAT DOES THE LAW SAY?
- Faizel has a right to his notice and leave money if the dismissal was unfair. However there are cases where an employee can be summarily dismissed (in other words, without notice or payment in lieu of notice) but the employer will have to prove this was justified. In all cases, the employee is entitled to payment of any outstanding leave pay.
- The amount of notice and leave pay owing to him depends on which wage regulating measure he falls under. (See How do you know which law applies to an employee?)
- If Faizel was unfairly dismissed, he may be able to claim compensation from the employer. (See Problem 4: Dismissed employee wants the job back – how to apply for reinstatement or compensation)
WHAT CAN YOU DO?
You can take these steps to claim the money owing:
- Check which wage regulating measure protects this particular industry, in other words, whether it is a Bargaining Council Agreement or Wage/Sectoral Determination or the Basic Conditions of Employment Act and work out what amounts are owing by the employer to Faizel for payment in lieu of notice and outstanding leave pay.
- Send an email to the employer stating Faizel’s claim. (See Model letter of demand to employer for notice and leave pay)
- If the employer refuses to pay Faizel the money that is owing, refer him with a covering letter to the relevant Bargaining Council or Department of Employment and Labour.
- Alternatively, refer the dispute to the CCMA in terms of Section 73A of the BCEA for non-payment of statutory leave and notice pay. This process involves sending the CCMA Referral of Dispute Form 7:11 to the employer and then sending it to the CCMA and ticking Section 73A under ‘Nature of Dispute.’
- Check the relevant websites of the Bargaining Council to find out if there are online options to submit a complaint. The complaint must say exactly what the claim is and what steps have been taken to sort out the problem. If the employer is found guilty of not complying with the Bargaining Council Agreement or the BCEA, the relevant inspector can order the employer to pay Faizel. If the employer refuses to pay him, the inspector can refer the matter to the Director General of Employment and Labour.
- Faizel has the right to bring a private civil claim against the employer, either in the Small Claims Court or in the Magistrate’s Court. (See Small Claims Court) (See Summary of provisions in the BCEA (if he falls under the BCEA) and Enforcement of the BCEA and Enforcement of a workplace-based collective agreement). (See Enforcement of a Sectoral Determination)