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Sending Payslips via SMS

The relevant provisions that apply in this case are the provisions of Section 33 of the Basic Conditions of Employment Act 75 of 1997 (“the BCEA’). In terms of Section 33(1), it is provided that “An employer must give an employee the following information in writing on each day the employee is paid”, and the information would then be the information you would normally place on any payslip. Section 33(2) then provides that the written information required in terms of Section 33(1) must be given to each employee (a) at the workplace or at a place agreed to by the employee and (b) during the employee's ordinary working hours or within 15 minutes of the commencement or conclusion of those hours.

These are the only legislative provisions relating to payment particulars (payslips). The crisp question then simply is – what does “in writing” mean and can it include an SMS and/or Text Message.

Pertinent in this respect is the judgment in Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC).  In this case, the Court specifically referred to the Electronic Communications and Transactions Act 25 of 2002, and in particular Section 12 thereof, which provides that:

“A requirement in law that a document or information must be in writing is met if the document or information is - (a) in the form of a data message; and (b) accessible in a manner usable for subsequent reference.”

It is pertinent to note that in Sihlali v SA Broadcasting Corporation Ltd, the Court specifically dealt with a resignation by an employee, and whether an SMS resignation is a resignation in writing.  In the case of resignations, the BCEA in section 37(4)(a) also specifically provides that “Notice of termination of a contract of employment must be given in writing”.  The Court concluded that an SMS resignation was a resignation in writing as contemplated by law, applying Section 12 of the Electronic Communications Act.

There is no reason why the same principles cannot apply to payment particulars which must be given in writing in terms of the BCEA. It is therefore our conclusion that payslips given to employees by SMS and/or Text Message is in compliance with the BCEA, and is thus permissible.

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