Newsflash: CCMA has jurisdiction to entertain commission payment disputes

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Judgment: Zapop (Pty) Ltd v CCMA (CA21/2014) [2016] ZALAC 16 (12 May 2016) per Sutherland JA [Davis and Musi JJA concurring]

The landmark judgment in Zapop has now confirmed that the CCMA has jurisdiction to entertain commission claims as part of remuneration, and as contemplated by section 74(2) of the BCEA.

The LAC judgment means

  • That the fairness of the dismissal does not deprive employees of any other contractual rights, such as commission earned prior to dismissal – provided there isn’t a clause in the contract of employment that provides otherwise.
  • That dismissed employees may refer more than just an unfair dismissal dispute to the CCMA. They may also refer claims in terms of section 74(2) of the BCEA.
  • That the CCMA has the necessary jurisdiction to entertain such referrals because commission is a claim for an amount owing in terms of the BCEA.

The LAC, inter alia, held that:

[31] The principal dispute referred to arbitration was about unfair dismissal. The money claims for pay during suspension, accrued leave pay and commission, were not dependent on the merits of that dispute and were put before the arbitrator pursuant to Section 74(2) of the BECA which provides that:

‘If an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act if the claim has not prescribed.’ (Emphasis supplied)

[32] The jurisdictional controversy is confined to whether the section contemplates a commission claim. No genuine debate exists that the commission was not part of Cunningham’s remuneration. Section 1 of the BECA provides:

‘remuneration’ means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and ‘remunerate’ has a corresponding meaning.

The LAC quoted with approval from an earlier Labour court judgment, Schoeman and Another v Samsung Electronics SA (Pty) Ltd,[1] where the court per Revelas J held that:

‘Commission is encapsulated by the notion of remuneration. Commission payable by the employer forms part of the employee’s salary. It is a quid pro quo for services rendered, just as much as a salary or a wage. It is therefore part of the basic terms and conditions of employment….’

The LAC concluded that the Schoeman- judgment was correct in this regard:

[36] This must be correct.[2] The fact that the form of the computation of remuneration is in the form of a percentage of sales achieved, or the market value of the harvest as determined by the Co-Operative, or any other variable is beside the point. The arbitrator had jurisdiction to adjudicate a claim for remuneration, including the commission.

Written by Hilda Grobler

[1] (1997) 18 ILJ 1098 (LC) at 1102-1103.

[2] Caution should be exercised in reading the Schoeman judgment in relation to what is stated about the character of a “benefit” as later jurisprudence has not adopted the stance articulated by Revelas J; see Apollo Tyres (Pty) Ltd v CCMA and Others (2013) 34 ILJ 1120 (LAC).