The Basic Conditions of Employment Act (BCEA) entitles employees to certain minimum rights. These rights include remuneration for work done, leave and lunch breaks.
Where the Department of Employment and Labour (DOEL) finds that an employer breaches an employee’s rights, it may issue a Compliance Order. The Labour Court can enforce this order. Non-payment of commission can also trigger regulatory and legal scrutiny.
Legal framework governing commission and remuneration
Where the employee does not fall under the protection of the Department of Employment and Labour, due to seniority or salary level, he or she may refer disputes directly to the Labour Court. In such cases, non-payment of commission often becomes a central legal issue.
In Solidarity obo Van Rensburg vs Stallion Security (Lex Info 1 December 2025, Labour Court case number JS33/24), a salesman left the employer after making several sales. The employer refused to pay his commission because he had left the company before the clients paid for the items sold. This refusal amounted to non-payment of commission.
In the Labour Court, the employer argued that it was an industry norm not to pay commission to employees who had left the company. The court rejected this argument.
First, the employer failed to prove that such an industry norm existed. Second, even if the employer had provided proof, the excuse would only be valid if the industry norm had been shown to be “universally and uniformly observed within the particular trade concerned, long established, notorious, reasonable and certain, and not to conflict with positive law”.
Even then, such an industry norm would need to be included explicitly or implicitly in the contract. None of these requirements had been met. Therefore, the employer could not rely on its industry norm defence to justify non-payment of commission.
Implications for employers and HR decision-makers
The court ordered the employer to pay the employee R89,262.84 in commission. The court also ordered interest on this amount and payment of the employee’s legal costs. This outcome demonstrates the legal risks associated with non-payment of commission.
Employers that wish to avoid such costly court cases need to ensure that they train their decision-makers on the requirements of remuneration law. They should also review commission policies and contracts to avoid disputes related to non-payment of commission.
Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
