Unfair Labour Practices in the Workplace | Dealing with Unpaid Salary

Withholding an employee’s salary in South Africa is an unfair labour practice under section 186(2) of the Labour Relations Act 66 of 1995 (LRA), and the employee may refer the dispute to the CCMA within 90 days of the act or omission under section 191 of the LRA. In parallel, an employee owed an amount under the Basic Conditions of Employment Act 75 of 1997 (BCEA) may pursue a statutory claim under section 73A BCEA for non-payment, with interest at the prescribed rate running from the date the amount became due. The two remedies run separately — the LRA route addresses the unfair-labour-practice conduct and awards back-pay plus costs, while the Section 73A route recovers the unpaid amount itself with interest — and the cleaner fit depends on whether the dispute is primarily about non-payment of a defined BCEA entitlement or about broader unfair conduct by the employer.

What Counts as an Unfair Labour Practice in the Workplace

Section 186(2) of the LRA defines “unfair labour practice” broadly. It captures any unfair act or omission by the employer that causes the employee harm, and singles out specific categories, including the unfair withholding of remuneration. There is no requirement for the employee to prove anything beyond the non-payment itself — once the employer has failed to pay an amount that is contractually due, the unfair-labour-practice characterisation is generally made out.

The framework is intentionally wide enough to catch the common ways pay is shortchanged in practice, not only a complete non-payment:

• Unilateral salary reductions imposed without the employee’s agreement.
• Unauthorised deductions from pay (for alleged damages, stock shortages, or loans).
• Non-payment of earned commissions or performance-based bonuses.
• Non-payment of accrued leave on termination of employment.
• Failure to pay any other amount that is contractually due on a defined date.

The unfair-labour-practice framework sits alongside the BCEA’s payment obligations, not in place of them. The two statutes are read together, which is why an unpaid-salary dispute often engages both routes at once.

When Unpaid Salary Crosses From Breach to Unfair Labour Practice

The BCEA prescribes regular pay intervals — weekly, fortnightly, or monthly depending on the sector and the employment contract — and a maximum window within which the employer must pay. A single missed pay date is a breach of the BCEA, but a pattern of late or non-payment, non-payment on termination, or non-payment of a clearly defined contractual entitlement typically supports the LRA route as well.

Bad-faith non-payment strengthens the unfair-labour-practice characterisation. Where the employer acknowledges the debt but refuses to pay, or where the non-payment is part of a broader pattern of unfair conduct, the prospects of a costs order against the employer at arbitration improve materially. The CCMA and the Labour Court consider the surrounding conduct, not just the missing payslip.

The Two Parallel Routes to Recover Unpaid Salary

South African employees who are owed unpaid salary have two independent routes they can pursue, and the choice between them is driven by the underlying facts of the dispute.

Route	Forum	Best Fit	Remedy
LRA unfair-labour-practice claim	CCMA (conciliation then arbitration) or Labour Court	Broader unfair conduct by the employer, not only a defined BCEA entitlement	Back-pay, costs, and (in serious cases) compensation for the unfair conduct
Section 73A BCEA claim	CCMA or Labour Court	Defined BCEA amount owed, including interest from the date due	Unpaid amount plus interest at the prescribed rate

The routes are not mutually exclusive. The Section 73A BCEA claim is a useful parallel remedy where the dispute is primarily about a defined BCEA entitlement — for example, unpaid overtime, unpaid leave on termination, or a missed payment for a specific pay period — because interest runs automatically from the date the amount fell due. The LRA route is the cleaner fit where the unfair conduct extends beyond a single missed payment or where the employee’s broader treatment is part of the complaint.

Step-by-Step: How to Claim Unpaid Salary Through the CCMA

1. Document the non-payment. Pull together payslips, the employment contract or letter of appointment, bank statements showing the missing amounts, and any written acknowledgement from the employer of the debt.
2. Send a written demand to the employer. A short, dated letter or email requiring payment within a defined period (often seven days) strengthens both the LRA and BCEA cases, and shows the CCMA that the employee attempted to resolve the dispute before escalating.
3. Complete the CCMA referral form (LRA Form 7.11) within 90 days of the act or omission. The 90-day clock starts on the date the non-payment occurred, or for ongoing non-payment, on the date the most recent instalment was due.
4. Lodge the referral at the nearest CCMA office. Conciliation is then scheduled, typically within around 30 days of the referral.
5. Attend conciliation in person or via a representative. If the dispute remains unresolved, the commissioner issues a certificate of non-resolution.
6. Proceed to arbitration (or, in serious cases, to the Labour Court). Both sides file bundles of documents and present evidence, and the commissioner decides the outcome.
7. Receive the award. The commissioner typically awards the unpaid amount, plus interest and (in some cases) costs. Compensation for unfair conduct can also be awarded where the non-payment is part of a broader pattern.

Time Limits and What Happens If You Miss the 90-Day Window

Section 191 of the LRA sets a 90-day referral window from the date of the act or omission. The deadline is strict, and the CCMA will not entertain a late referral unless the employee applies for condonation and shows good cause for the delay.

Factor the CCMA considers on condonation	Why it matters
Degree of lateness	The longer the delay beyond 90 days, the harder condonation is to obtain.
Reason for the delay	A reasonable, documented explanation (illness, attempts to resolve, lock-out) weighs in the employee’s favour.
Prospects of success	A strong evidentiary file improves the prospects of condonation being granted.
Prejudice to the employer	If the employer cannot meaningfully defend the claim because of the delay, condonation is less likely.

A well-documented trail of attempts to resolve the dispute before the deadline — written demands, follow-up emails, recorded responses — materially improves condonation prospects. The 90-day window is the most common reason unfair-labour-practice referrals fail on technicality, so the practical advice is to lodge sooner rather than later.

What You Can Claim

• The unpaid salary itself, plus any agreed or contractually due amounts (overtime, commission, leave pay, bonuses where earned).
• Interest at the prescribed rate on the unpaid amount — under Section 73A BCEA, the interest runs from the date the amount became due.
• Costs of the arbitration, in some cases.
• Compensation for the unfair conduct itself, in serious cases where the unpaid-salary finding is part of a broader pattern of unfair treatment.

Filing the Claim in Gauteng

Unpaid-salary disputes in South Africa are not filed in any particular city. The LRA unfair-labour-practice referral is lodged at the CCMA office serving the area where the employee works (or where the dispute arose), and Section 73A BCEA claims can be lodged at either the CCMA or the Labour Court, which has regional seats in Johannesburg, Cape Town, and Durban. Employees in the Gauteng region typically lodge CCMA referrals at the Johannesburg, Randburg, Pretoria, or Springs CCMA offices, depending on the work location, and labour court matters for Gauteng are heard at the Labour Court in Johannesburg. The procedural rules of the CCMA and the BCEA’s pay-date and pay-frequency obligations, as published by the Department of Employment and Labour, are the controlling reference for current timelines and forms.

Burger Huyser Attorneys fields labour-law matters through its general practice with specialist input from its Labour Law consultant, Marius Ferreira, and intake is handled through the firm’s Linden head office (49 First Avenue, Linden, Randburg, 011 888 0246) with files routed to the appropriate Gauteng branch.

Frequently Asked Questions

Is unpaid salary an unfair labour practice in South Africa?

Yes. Under section 186(2) of the Labour Relations Act 66 of 1995, the unfair withholding of an employee’s remuneration is specifically listed as an unfair labour practice, and a single non-payment is generally sufficient to ground a referral to the CCMA.

How long do I have to refer an unpaid-salary dispute to the CCMA?

Ninety days from the date of the act or omission, under section 191 of the LRA. The clock typically runs from the date the payment was due, or for an ongoing failure, from the most recent missed payment. Late referrals can be condoned on application for good cause.

Can I claim interest on unpaid salary?

Yes. Under section 73A of the Basic Conditions of Employment Act, interest at the prescribed rate runs on any unpaid BCEA amount from the date it became due. The interest is recoverable as part of the claim.

Do I have to go to the CCMA, or can I go straight to the Labour Court?

For a pure unfair-labour-practice dispute you must first refer to the CCMA for conciliation; arbitration at the CCMA is the typical forum. The Labour Court is usually reserved for constitutional or complex matters, or where interim relief is sought. Section 73A BCEA claims can be pursued at either forum.

What documents do I need to prove unpaid salary?

Payslips, the employment contract or letter of appointment, bank statements showing the missing amounts, the written demand sent to the employer, and any written acknowledgement from the employer. Witnesses who can speak to the agreed pay arrangements strengthen the file.

Can the employer offset an unpaid salary claim against alleged damages?

Generally no. An employer cannot unilaterally offset alleged damages or loans against an employee’s pay without the employee’s written agreement. Any such offset can itself amount to an unfair labour practice and is independently challengeable.

Speak to a labour-law attorney about your unpaid-salary dispute. If your employer has withheld your salary and you are weighing the unfair-labour-practice referral route, contact Burger Huyser Attorneys on 011 888 0246 or 061 516 6878, or visit the office at 49 First Avenue, Linden, Randburg. The firm’s Labour Law consultant, Marius Ferreira, advises on LRA unfair-labour-practice referrals and Section 73A BCEA claims, and intake is handled across the firm’s Gauteng branches. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified) and offers an honest cost conversation at the first consultation rather than a vague pre-engagement estimate. The 90-day CCMA window is strict — early advice materially improves both the strength of the file and the prospects of any condonation application if the deadline is approaching.