What is the test for review when challenging the arbitrator’s ruling, where an employee claims arrear wages, commission, and leave pay before the CCMA?

In terms of s73A of the BCEA, the CCMA has jurisdiction to determine a dispute where an employee claims wages if the employee earns less than the earnings threshold, as contemplated in s6(3) of the BCEA.

How is this threshold to be calculated?

What is the test for review when challenging the arbitrator’s ruling as to whether or not s73A of the BCEA is applicable to a claim, where an employee claims arrear wages and commission, as well as leave pay, before the CCMA?

The labour court, in Prestige Campworld (Pty) Ltd t/a Comet Caravans v Botha and Others (2022) 43 ILJ 2379 (LC); (2022) 33 SALLR 278 (LC), indicated that the test for review, based on the aforementioned jurisdictional challenge is not the reasonable decision-maker test of Sidumo (CC) – Article 26/2024 – but the labour court is required to determine, de novo, whether the arbitrator was right or wrong (Fidelity Cash Management Services v CCMA and Others [2008] 3 BLLR 197 (LC); SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others [2008] 29 ILJ 2218 (LAC)).
In the Government Gazette of 1 July 2014, ‘earnings’, for the purposes of s6(3), are defined as:
‘…the regular annual remuneration before deductions i e income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration for the purpose of this notice’.
What constitutes ‘regular annual remuneration’ is to be found in s35(5)(a) of the BCEA – the Minister may, by notice in the Government Gazette, determine whether a particular category of payment, money or kind forms part of an employee’s remuneration.
The Minister made such a determination on 23 May 2003 (see Government Notice 691, contained in Government Gazette No 24889, dated 23 May 2003), indicating, inter alia, the following:
- remuneration includes cash payments made to an employee, except for exclusions specifically listed
- under ‘exclusions’, the following are listed: allowances or payments to enable an employee to work, relocation allowance, gratuities and gifts, share incentive schemes, discretionary payment, entertainment allowance and education and schooling allowance – therefore, ‘earnings’ is far more than just the fixed salary of an employee (in the Prestige Campworld judgment, it was found that remuneration included commissions earned, seeing that same were guaranteed and not discretionary and did not fall within the exclusions).

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