# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Recourse for salary not paid by employer?

## Camille

Perhaps someone can help me?  I worked for this company for 9 months last year and was retrenched on 30/11/09 due to the company not performing as expected (a new company, 2 years old).  I wasn't the only one retrenched, but the rest of the staff were in more junior positions.  I am still waiting for my December salary (2 weeks notice pay). It was promised 31/12/09 and then every week or so when I enquire there's a story about lack of cash.  Was promised the end of Jan but today I hear it is unlikely. Before I left I typed up a retrenchment document where my boss signed stating that it would be paid by no later than 31/12/09.  The business is still in operation as the remaining staff are getting paid and the main creditors are obviously getting paid for the business to providing its service to their clients, which they are doing on a daily basis.

Sorry the long winded version, but I am so desperate.  :Frown:   Any help will be appreciated.

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## sterne.law@gmail.com

You can try Department of Labour, but they are seldom successful. Perhaps a strongly worded letter should be attempted before embarking on a course of stronger action. In addition to your notice he owes you leave pay. 
I might be reading between the lines but it seems the employer did not proceed with correct retrenchment procedures, which may be the stick or veiled threat to speed up the payment process.

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## daveob

Personally, I think I would go straight to my lawyer and have a letter drafted and delivered to the company owner/s. That way, you send out a clear message that you do not intend to drop this and will not accept repeated excuses for delays. Let them know you're serious, and they just might start to take you serious.

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desA (25-Jan-10)

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## desA

> Personally, I think I would go straight to my lawyer and have a letter drafted and delivered to the company owner/s. That way, you send out a clear message that you do not intend to drop this and will not accept repeated excuses for delays. Let them know you're serious, and they just might start to take you serious.


Sound advice. Perhaps penalties could accrue for late payment against promise?

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## Camille

Thanks for the advice.....I think the next course of action is a strongly worded letter from labour attorney.   I incurred some missed debit order bank costs as well which amount to about R1k which I should add on.
Thanks again
C.

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## desA

All the very best & I really do hope that you get the matter settled. Please let us know how it goes.

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## jinxster

Debit order costs of R1k? Seems high.

Well I am not a labour lawyer, simply put you should go to CCMA and file for late payment.

CCMA check the business' solvency and merely instruct to pay within 7 days.

If however the business is genuine in the kek and there is no money, all the employer does is respond with a plan.. ie he says, I will pay you by 31/3/2010. The CCMA generally accept this then follow up to make sure it happens.

This doesnt seem to be the case since the business is still going on.

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## Amado

Would suggest looking at a implementing a commercial Lien against the directors personal property. Should assist in getting your money very quickly

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## murdock

debit order returns are R115 per debit order returned...R120 honouring fee...at standard bank

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## Dave A

> Would suggest looking at a implementing a commercial Lien against the directors personal property.


The director's *personal* property? An employee could do that?  :Confused:

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## BusFact

> The director's *personal* property? An employee could do that?


Yeesh, I hope not. If it is the case I'm getting rid of 20 staff ASAP. No way I want my kids starving because I have an argument with a staff member or the company finds itself in financial difficulty.

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## sterne.law@gmail.com

Eish!!! Lets clear up some misconceptions before Dave and Busfact have heart attacks. :EEK!: 

Claiming the debit order costs and such does not fall under CCMA and is a civil matter and actual costs need to be shown. You can claim damages by virtue of credit record harm etc, but I doubt you will win. There must be actual damage and you need to quantify it. You will of course be able to claim the actual costs incurred.
A lien is normally used by accountants and lawyers. The person is in possesion of YOUR property and witholds until you pay them and not vice a versa. 
To get any property attached you will need to follow the normal routes and get a writ or attachment order. You can only get an attachment against a person who owes you something or in terms of specific performance. The company owes the money and not indivual directors, this of course would be subject to the type of entity. AN exception is rent owed the landlord has a tacit hypothec by virtue of which the landlord, to all intents and purposes, "owns" anything on premises that is not specifically excluded. When issuing summons for rent there is an automatic interdict to stop anyone removing goods from property and the issuing of an attachment order is included in summons.

With all due respect to jinkster's post that is factually incorrect. At this stage the money owed is of a statutory nature and not an award, even if an award it is not as simple as 7 days and thats that. By the same token checking solvency is somewhat more complicated than looking on a computer. :No: 

Now as to a course of action -
As per my previous post it seems as if an unfair retrenchment procedure occurred and you could institute a CCMA matter. This may prompt them to pay but more importantly it will bring the statutory money owed under the jurisdiction of the CCMA. You are however late and will need to apply for condonation, which may be difficult. Also if there was more than 1 person retrenched the issue will revert to labour court if conciliation fails.
Another option is the small claims court but you will be limited to a claim of R7000-00. You will be able to claim the money owed(evidence of debt needed, plus your bounced orders bank charges) and no you can not make seperate claims for each thing becuase they all stem from teh same cause of action. You may of course use teh small claims court even if teh amount exceeds the R7000 but you will have the abandon the excess.
You could make a claim for the money owed, costs plus damages in the magistrates court with relevant jurisdiction, provided that the cliam is less than R100 000-00

I would believe taht the amount of money owed to you will be a deciding factor in deciding how to continue. If it is substantial, CCMA, provided you get condonation, or magistartes court. If the amount is small give the small claims court a go, it will cost about R20 and you are dealing with an issue where teh evidentiary burden is not to large.

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AndyD (13-Oct-10), BusFact (13-Oct-10), Dave A (13-Oct-10)

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## Ann Williams

BusFact, if you are a Sole Prop or a Partner, this could happen anyway....

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## BusFact

You're correct I agree. This thread though was about someone working for a company. I would be very reluctant to employ someone in my personal capacity.

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## fbwhitley

Yes  the  sherriff  of  the  court  could  write  up  the  value  of  the  employer's  property  and  it  can  get  sold

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