Is litigating over salary arrears an option?

Davis Ndumiso Sibanda
TODAY many employers are failing to pay workers’ wages on time and many companies are several months in salary arrears leaving workers in a desperate position and at times workers end up litigating.

Many times I have been approached by workers’ committee members, trade unionists and individual workers over unpaid salaries and wages that go back several months and in some cases years.

Delayed salaries situation is found in small, large organisations, some parastatals and of late Government has also not been spared. While legally it is within workers’ rights to litigate, get property attached and sold so that the workers get paid, very few workers have gone that route not because they are foolish but because they are smart and realistic about the unintended consequences of doing so.

What has to be understood is that in most organisations, all employees will be owed salaries and wage arrears meaning that managers and workers are in the same boat. This has helped all employees to look at the situation on the ground soberly and parties agree to workable solutions that allow the business to continue limping while the workers get something as well.

The early days of salary arrears saw workers litigating so as to get their salary arrears. This resulted in the very equipment workers were using to earn a living being attached and sold to pay workers. Many organisations that went through the process are no more and the workers are worse off than if they had negotiated payment plans that would have kept the business afloat.

The truth is that the moment the business enters the territory of salary arrears the best option for a worker is to leave as very few businesses recover, however, why many workers have held on is because they have nowhere else to go and because it is better to get the little that is still available.

There are also cases where attaching property will not work, for example attaching property belonging to the state or parastatals will not work as legislation to protect those can easily be crafted and litigating against such decisions could be cumbersome for workers.

What then should workers who are not getting their salaries on time do? There is no single solution to the challenge, however, consulting others helps as in many organisations, employers and workers have entered into varied models of win-win agreements.

For example, in one organisation workers work for three month in and three months out and others have agreed to work and be paid only when there is work and have been called to work. All these are a means to manage the wage bill and keep jobs with the hope that the business will recover and they all get normal jobs again.

There are, however, cases of workers who have become very militant and have resorted to useless energy sapping demonstrations against businesses, which are not capable of giving anything to the workers. In worse cases, such workers avoid the wise counsel of trade unions and use bogus labour consultants or bogus legal advisors who are after milking workers and by the time workers realise they have wasted money, it will be too late.

I recall a case of workers who hired a bogus “labour advisor” who promised he was going to get wage salary arrears for workers in no time. Workers were each made to pay $10 per month to fight the case. There were 350 workers giving the individual $3 500 a month. The workers ditched the trade union for the “labour advisor”.

After three months nothing had happened except leaving threats and name dropping where the political powerful were copied all correspondence but they never came to the aid of workers. It was only after some workers abandoned the “labour advisor” and asked the union to engage the employer at NEC that parties started to find each other. Today the business is on the road to recovery.

In conclusion, workers need to appreciate that the matter of salary arrears is an issue of national challenge and call for transparency and participation in the workplace to save jobs and help businesses recover. Suing the employer or going on collective job action or hiring bogus “labour advisors” or briefcase trade unionists who operate outside mainstream trade union territory is likely to leave worse off.

There are times when the law is dwarfed by the occasion and this is such an occasion where the issue of salary arrears is better dealt with through dialogue than litigation.

Davies Ndumiso Sibanda can be contacted on:

email: [email protected] <mailto:[email protected]> Or cell No: 0772 375 235