Not Getting Paid for Work Done in South Africa | What Are Your Rights?

In South Africa, when an employer fails to pay wages, salaries, overtime, or the national minimum wage that is due for work already performed, the employee has a structured set of remedies under the Basic Conditions of Employment Act 75 of 1997 (BCEA), the National Minimum Wage Act 9 of 2018 (NMWA) and the Labour Relations Act 66 of 1995 (LRA). Section 73A of the BCEA — effective from 1 January 2020 — allows an employee to refer a non-payment dispute directly to the CCMA without first having to declare an unfair labour practice dispute. The NMWA adds a separate statutory claim for underpayment below the national minimum, interest accrues on late payment under the Prescribed Rate of Interest Act 55 of 1975, and common-law contract remedies remain available in the civil courts where appropriate. The route chosen depends on which right has been breached, the amount in dispute, and whether the employee is still in service.

What “Unpaid Wages” Actually Covers Under South African Law

Not every “money owed by the employer” travels the same legal route, and the first task is to identify which right has actually been breached. The categories that fall within the unpaid-wages framework include:

• Wages, salaries, overtime, commission, and allowances earned but not paid for work already performed.
• Underpayment of the national minimum wage as set under the NMWA — a separate statutory wrong, with its own enforcement mechanism.
• Unpaid leave payout on termination, governed by section 40 of the BCEA.
• Notice pay owed on termination.
• Severance pay, where the employee meets the operational-requirements threshold in section 41 of the BCEA.
• Deductions taken from salary in breach of section 34 of the BCEA — an adjacent issue worth flagging separately because it follows its own consent-and-notification rules.

What the framework does not cover is a manager-imposed “fine” or disciplinary withholding of pay. That conduct is separately unlawful under section 33 of the BCEA and should not be confused with a non-payment dispute. Equally, the categorisation matters: not every money dispute qualifies as a Section 73A dispute. Some claims are residual unfair labour practice disputes under the LRA, which follow a different process and a different set of time limits.

The Statutory Remedies Available to You

South African law offers several overlapping remedies, and the claimant is not locked into a single one. The choice is a practical one driven by the amount, the complexity, and the documents in play.

Section 73A of the BCEA

Section 73A of the BCEA is the statutory fast-track for non-payment of certain BCEA amounts, and the employee refers the dispute directly to the CCMA. The section is broken into three limbs:

• Section 73A(1)(a) — covers non-payment of any amount the employer is required to pay under a BCEA provision or a sectoral determination.
• Section 73A(1)(b) — covers non-payment of amounts owed under the NMWA.
• Section 73A(1)(c) — covers other categories of non-payment the Minister adds by notice, allowing the list to be updated without fresh legislation.

Residual Unfair Labour Practice Under the LRA

For non-payment disputes that fall outside the Section 73A list, the residual unfair-labour-practice jurisdiction under the LRA remains available. This is the point Section 73A actually changed: prior to 1 January 2020, the employee typically had to first declare an unfair labour practice dispute before the matter could be arbitrated on its merits. Section 73A removed that precondition for the categories it covers.

National Minimum Wage Act Enforcement

The NMWA has its own enforcement route: the Minister and labour inspectors may investigate NMWA underpayments, and affected employees may also refer a claim under Section 73A(1)(b) of the BCEA. The two routes can be pursued in parallel where the underpayment is systemic or part of a pattern affecting multiple workers.

Civil Claim for Breach of Contract

Where the employment claim is contested and the dispute sounds in damages, the common-law breach-of-contract route is also available. The Labour Court and the civil courts each have their place; the choice depends on the cause of action and the relief sought.

Interest on Late Payment

Interest at the prescribed rate under the Prescribed Rate of Interest Act 55 of 1975 runs from the date the amount became due, unless the agreement provides otherwise. The interest claim is typically pursued alongside the principal claim at arbitration rather than as a standalone dispute.

Where to Claim: CCMA, Labour Court, or Civil Court

Forum	Best for	Why
CCMA	Money owed under the BCEA or NMWA; disputes covered by Section 73A	Quickest route; commissioners can issue awards payable as Magistrate’s Court orders; no legal representation required at conciliation; bargaining-council-agreed amounts may first require the relevant council
Labour Court	Constitutional challenges; review of CCMA awards; dismissal-related disputes; some non-payment disputes where jurisdictional complexity applies	Higher cost; pre-2020 the standard unfair-labour-practice route ran through the Labour Court for some disputes — Section 73A has shifted much of that load to the CCMA
Magistrate’s Court / Civil Court	Pure breach-of-contract money claims outside the labour codes	Common-law employment-contract remedies still exist; in practice many workers prefer the CCMA threshold and process
Department of Labour Inspector	NMWA underpayments, BCEA non-compliance, unlawful deductions	Inspectors may issue compliance orders under the BCEA and NMWA, which can be made arbitration awards

The Section 73A Claim Process Step by Step

1. Confirm what is owed — reconstruct pay slips, contracts, sectoral determination rates, and the relevant BCEA section (overtime under section 10; leave under sections 20 and 40; notice under section 37).
2. Check the deadline — the ordinary prescription period under the Prescription Act 68 of 1969 is three years from the date the amount became due; shorter sectoral windows may apply.
3. Decide the correct forum — Section 73A disputes go to the CCMA; if a sectoral determination or registered bargaining council applies, the dispute may first require that council.
4. Lodge the referral — using the CCMA’s standard referral form (LRA Form 7.11 or its current equivalent) identifying Section 73A as the cause.
5. Conciliation stage — the CCMA tries to resolve the dispute at conciliation; no legal costs; the outcome is either a settlement agreement or a certificate of outcome.
6. Arbitration / adjudication — if conciliation fails, the matter is set down for arbitration; commissioners consider the documentary record and any oral evidence required.
7. Award — the CCMA award is the remedy (payment of the amount owed); it is enforceable as a Magistrate’s Court order once arbitration is concluded.
8. Review or appeal — review sits with the Labour Court on narrow grounds; most Section 73A awards do not go to review because the merits are documentary.

Time Limits and Prescription

Three overlapping clocks apply to an unpaid-wages claim, and missing the wrong one can extinguish the right even where the underlying entitlement is clear.

• 3-year ordinary prescription — under section 11(d) of the Prescription Act 68 of 1969, a money claim is enforceable within three years of it becoming due.
• Section 73A referral window — there is no separate statutory cap within Section 73A itself, but the CCMA process should still be initiated within the prescription period to preserve the underlying right.
• Dismissal-referral overlay — non-payment is sometimes a “dispute of right” arising at termination; the dismissal-referral forum (also the CCMA) has its own 30-day clock, which matters if the non-payment is tied to termination.

The practical risk of waiting beyond three years is that the debt becomes technically unenforceable even though the statutory right under the BCEA may still exist; in that scenario the remedy is technical, not monetary. Prescription is interrupted by written acknowledgement of the debt, by part-payment, or by the service of legal process.

What You Can Recover

Recovery under Section 73A is built around the actual loss, plus the interest that has accrued on it. The recoverable heads of damage are:

• The actual amount of unpaid wages, overtime, commission, or NMWA shortfall.
• Interest from the date the amount became due at the rate set under the Prescribed Rate of Interest Act 55 of 1975.
• If notice was not given — pay in lieu of notice for the notice period.
• Leave payout on termination under section 40 of the BCEA (worked out as ordinary pay × accrued leave days).
• Severance pay where the employee is dismissed for operational reasons and meets the section 41(2) threshold.
• Costs may follow the outcome in some forums; CCMA arbitration itself does not usually award costs against the losing party except for the limited statutory exceptions.

Evidence to Gather Before You Refer the Dispute

Unpaid-wages claims are won or lost on documents. Before approaching the CCMA, pull together the following:

• Latest three to twelve months of pay slips.
• Signed employment contract and any subsequent written variations.
• Sectoral determination rate, if the industry has one (farmworkers, hospitality, domestic workers, learnerships).
• The NMWA rate in effect at the time the work was done.
• Time-and-attendance records, overtime authorisations, commission schedules.
• Termination letter and payslip where the claim arises at end of service.
• Any written correspondence (WhatsApp, email) where the employee raised the non-payment.

Bring originals where required for cross-reference. Commission and overtime claims are heavily documentary, and the absence of a written overtime authorisation is often the decisive document the employer relies on at arbitration.

Adjacent Issues Worth Knowing

Right to Refuse to Work for Unpaid Wages?

Generally no. In South Africa, an employee who refuses to work without lawful reason risks disciplinary action; the correct route is to lodge the dispute, not to self-help. Collective protest action by registered unions under section 77 of the LRA follows a different process and is not available to individual employees. The right answer to “they haven’t paid me” is “claim, don’t walk out.”

Deductions from Pay

Covered separately under section 34 of the BCEA. Only certain deductions are lawful, and only with written consent. A unilateral deduction for breakages, cash shortages, or training costs is itself a contravention and can be pursued in the same referral.

Independent Contractor Misclassification

If the worker is being treated as a contractor to avoid BCEA protections, the forum-shopping argument changes — and the Section 73A pathway may not be available at all, because the BCEA applies to “employees” as defined. This is a growing issue in the platform-economy and labour-broker context, and a proper characterisation opinion is worth obtaining before a referral is lodged.

Liquidation or Business Rescue of the Employer

Wage claims become claims against the insolvent estate; they are generally preferred claims, but pursuit is unusual and recovery is uncertain. Lodging a proved claim with the liquidators and securing whatever documentary record exists is the practical course.

Common Misconceptions

• “It’s not worth claiming because the amount is small.” The CCMA does not impose a minimum monetary threshold; small claims are common and are processed in the same way as large ones.
• “I’ll get fired if I take this up.” Referral to the CCMA is a protected right; dismissal for that reason is automatically unfair under section 187(1)(d) of the LRA.
• “I need a labour lawyer to start.” The CCMA process is accessible; representation is permitted at arbitration but not required at conciliation. Legal advice is still strongly recommended because money-claim documentation matters.
• “If I quit, I lose my rights.” Termination does not extinguish the Section 73A claim; it can actually crystallise it (notice pay, leave payout, severance pay where applicable).

Frequently Asked Questions

How quickly can I claim unpaid wages through the CCMA?

Section 73A disputes are referred directly to the CCMA on Form LRA 7.11 (or its current equivalent); conciliation is scheduled in days to weeks, and arbitration is usually concluded within three to six months depending on the forum’s workload. The substantive right to the unpaid amount is protected for up to three years under the Prescription Act 68 of 1969, but quicker is better because the documentary record and witness memory get harder to maintain over time.

Can I claim for unpaid overtime and commission, not just salary?

Yes. Section 73A(1)(a) of the BCEA covers non-payment of any amount the employer is required to pay under the BCEA itself, including overtime (sections 9 and 10) and any contractual obligation that is enforceable under the BCEA. Commission is more often treated as a contractual claim under the LRA’s unfair labour practice or under common-law breach of contract where it does not fall neatly within the BCEA list, but the practical route through the CCMA remains accessible.

What happens if my employer is going into liquidation?

Wage claims are typically preferential claims against an insolvent employer’s estate and must be lodged with the liquidators as proved claims. Securing the claim requires the documentary evidence mentioned above. CCMA awards obtained before liquidation remain enforceable against the estate. Recovery from an insolvent estate, however, is rarely complete; prompt action matters because late claims may share in only what is left.

Do I have to resign before I can claim unpaid wages?

No. Section 73A exists precisely to allow an employee to claim non-payment without having to resign or to declare an unfair labour practice first. An employee can lodge the dispute and continue working. Taking the dispute does not, on its own, expose the employee to dismissal — doing so would itself be an automatically unfair dismissal under section 187(1)(d) of the LRA.

Will interest be added to what I’m owed?

Generally yes — interest at the rate set under the Prescribed Rate of Interest Act 55 of 1975 runs from the date the amount became due, unless the employment contract or settlement agreement fixes a different rate. The interest claim is commonly pursued alongside the principal claim at arbitration.

Do I need a lawyer to file at the CCMA?

Not for conciliation — conciliation is informal and accessible. Representation at arbitration is permitted but not required; many claimants handle their own money claims successfully where the paperwork is clear. Most claimants do, however, take legal advice beforehand to lock the correct Section 73A characterisation of the dispute and avoid simple pleading errors that delay the file. This is the gap Burger Huyser Attorneys’ Labour Law practice is set up to close — Marius Ferreira’s consultancy fields CCMA referrals, arbitration representation, and review proceedings across Gauteng from the firm’s head office and branch network.

If an employer has not paid the wages, overtime, or NMWA shortfall you have already earned, Burger Huyser Attorneys’ Labour Law practice can take your Section 73A claim to the CCMA, draft the referral, and represent you at conciliation and arbitration. The firm’s Labour Law specialist consultant is Marius Ferreira; instructions are processed through the head office at 49 First Avenue, Linden, Randburg (011 888 0246, after-hours 061 516 6878), with branches in Sandton, Pretoria, Centurion, Roodepoort, Bedfordview, Alberton, and Midrand fielding initial consultations across Gauteng. Burger Huyser is rated 4.8/5 across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and handles CCMA disputes, disciplinary hearings, employment-contract reviews, and Labour Court matters under Marius Ferreira’s specialist consultancy.