Employers are obliged to pay over TERS monies received to its employees for who the employer has applied for the payment of TERS monies. It has been identified that many Employers do not pass TERS payment on their employees, which is unlawful.
What can employees do?
There are possibly many remedies for employees but the most effective may be the declaration of a dispute to the CCMA or a relevant bargaining council in order to “ring fence” the employee against victimisation by the employer. The referral of a dispute should be in combination with the making of so called “protected disclosure” in terms of the Protected Disclosures Act. A protected disclosure is a disclosure made as to unlawful conduct committed by an entity/employer, which is reportable to the authorities and which disclosure/report is also protected in terms of the protected disclosures act.
If an employee refers a dispute in combination with a protected disclosure, the employee is protected against any form of victimisation or retaliation by the employer.
It is preferred that such a referral and a protected disclosure is made with an experienced labour attorney who should be able to formulate the referral and the protected disclosure carefully. A protected disclosure should, however, not be made to solicit a payment from the employer, which is not due to the employee, but to have the unlawful action of the employer correctly addressed and to have the employee treated fairly and lawfully.