Paying, or not paying, bonuses is a contentious issue – especially when the employer does not pay. Even then non-payment of some employees who went on strike could still result in a successful unfair labour practice award.
In Hotel, Liquor, Catering Commercial & Allied Workers Union of South Africa obo members / Premier FMCG Ltd – (2018) 27 CCMA 6.7.2 also reported at [2018] 8 BALR 847 (CCMA) After 192 employees had engaged in a three-month protected strike, they resumed work and a wage agreement was concluded. However, the employees were informed later that they would not receive their normal annual incentive bonuses. They claimed that this amounted to an unfair labour practice.
The employer maintained that it was entitled to withhold the bonuses because they were discretionary and the strike had cost it about R9 million. The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) noted that incentive bonuses had been paid to all the employer’s employees except for those who had gone on strike.
As this case was about if denying bonuses was an unfair labour practice relating to the provision of benefits, the dispute concerned the fairness of the employer’s conduct. Even though the employer had discretion to grant or refuse the bonuses, the case still fell into the scope of section 186(2)(a) of the Labour Relations Act (LRA).
The Commissioner found that although the strike had caused the employer loss, the employees had nonetheless contributed to profits subsequently made to recover the loss. The manner in which the employers had exercised its discretion was, accordingly, unfair. The employer was ordered to pay each employee his or her full bonus.
Bonuses are very contentious issues that should be clearly articulated in the contract of employment or policies and procedures.
Contact Global Business Solutions for all unfair labour practice disputes in your company
If you have an unfair labour practice dispute in your company, and you need assistance with resolving this, then contact Grant Wilkinson and the legal team for assistance. Follow this link to contact him.