Question:

I am the owner of a small consultancy practice in the Cape Town area and would really appreciate an expert opinion on a matter I am currently having. My client has been employed by a company for approximately 2years as a sales agent on a structure of basic salary, car allowance, fuel allowance and cell allowance. Two weeks ago he received a letter from the company stating that his basic salary has become null and void due to poor performance. His benefits will now be paid as part of his commission structure. The matter was subsequently referred to the CCMA that stated that they do not have jurisdiction over the matter as such involves money. Surely the matter is still changes to conditions of employment as per the employment contract? Further, we need to refer to the Labour Court for adjudication and my client is merely a single entity that cannot afford such procedures. Should he resign and sight constructive dismissal, bearing in mind a slim chance of success. Get the incompetent department of labour involved?

Answer:

Yup is one of those jurisdictional nightmares unfortunately. Anything involving salary falls to the Dept of Labour. I suggest that he firstly refer a formal complaint to them for non payment of wages as in essence that is what has occurred. You can file simultaneously at CCMA as unilateral changes to terms & conditions of employment but bear in mind the outcome there will be ” the right to strike” which will not help the cause but will cause untold aggravation to the employer. Ask the Dept of Labour to do a full inspection of the employer as client believes there are many other inconsistencies occurring. The employer is going to be hit from all sides and when in a corner may do something stupid. He may then get rid of your client without thinking it through giving stronger grounds for a successful CCMA matter. Try this first and see what transpires. As correctly stated your other option is LC and costs attached.

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