About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 399
|
|
Groenewald v Mokgethi NO and Others (JS598/15) [2015] ZALCJHB 399 (13 November 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 598/15
In the matter between:
BAREND HENDRIK JACOBUS
GROENEWALD
APPLICANT
and
DR. NE MOKGETHI
N.O
FIRST RESPONDENT
KGOTSO KHUMALO
N.O
SECOND RESPONDENT
TLOKWE
MUNICIPALITY
THIRD RESPONDENT
Date heard:
20
October 2015
Date delivered:
13 November 2015
Summary: Section 77(3)
claim for outstanding performance bonus. No performance evaluation
conducted – entitlement and amount
not established. Application
dismissed
.
JUDGMENT
EVERETT AJ;
Introduction
[1] This is an
application in terms of section 77(3) for payment of an outstanding
performance bonus for the financial year 1 July
2010 – 30 June
2011. The amount claimed is R116032.55 plus interest.
The facts
[2] The applicant
commenced employment with the respondent in 1987 and over the years
he was employed in various capacities. In
terms of the employment
contracts that applied at the time, he and the employer would enter
into a performance agreement, and the
employer was required to review
his performance. The performance evaluation would form the basis for
rewarding outstanding performance
or correcting unacceptable
performance ‘and a performance bonus between 5% and 14% of the
all-inclusive annual remuneration
package may be paid to the employee
in recognition of outstanding performance’. The applicant’s
total remuneration
package at the end of June 2011 was R828, 803.94.
[3] The applicant entered
into the performance management agreement for the period 1 July 2010
to 30 June 2011.
[4] For the financial
year 1 July 2010 to 30 June 2011, no performance evaluation was
conducted despite a council resolution on
26 August 2011 to the
effect that all outstanding bonuses be finalized and paid to him.
This was not done and after the applicant
had resigned from the
position he held until 6 July 2014, he received a request to submit a
portfolio of evidence for assessment
to enable the municipality to
pay performance bonuses. He claimed it was impossible to comply with
the request as the required
documents were not in his possession.
[5] For the year 2009 to
2010, the applicant was paid a performance bonus of R64264.73 after
tax, after a council resolution on
17 April 2013 that outstanding
performance bonuses should be paid.
Evaluation
[6] It is clear that the
employer has failed to conduct the performance evaluation as required
by the contract of employment and
that this has resulted in a failure
to pay the applicant a performance bonus for the year in question in
the event that his performance
was evaluated as having been
outstanding.
[7] The performance
agreement specifies a range between 5% and 14% for outstanding
performance. In particular, a score of 130% earns
a performance bonus
ranging from 5% to 9% and a score of 15% and above results in a bonus
ranging from 10% to 14%.
[8] The applicant has
claimed the amount which equates to 14% of his salary at the time. He
does not set out any basis for claiming
14% as opposed to 5%. The
difficulty is that conducting a performance review or evaluation is a
condition precedent to determining
the percentage and therefore the
amount of the performance bonus. In the absence of a performance
evaluation it is impossible to
assess whether he was entitled to the
bonus and the amount thereof. For a similar finding on the need to
establish entitlement
in terms of the contract, and quantify a claim
for the purposes of a section 77(3) application, see
Volschenk v
Pragma Africa (Pty) Ltd
[2014] 11 BLLR 1146
(LC), albeit that
this was in the context of an exception. Entitlement and payment of
an outstanding performance in the previous
year does not establish
entitlement in the year in question.
[9] When the applicant
was asked to provide a portfolio of evidence so that the outstanding
performance evaluation could be conducted
and the amount of the
performance bonus, if any, could be quantified, he had an opportunity
to engage with the employer. It appears
that he failed to take up
this opportunity and instead sought to claim the maximum performance
bonus in terms of section 77(3)
of the BCEA.
[10] In a claim of this
nature, section 77 would be the appropriate route if there is clear
entitlement in terms of the contract
of employment. But in this case,
entitlement to a performance bonus only arises once the evaluation
has been conducted and a score
is decided upon. For these reasons the
application must fail. As this matter was not opposed, there is no
order as to costs.
Order
1. The application
for payment of a performance bonus is dismissed.
2. There is no
costs order.
_________________
Everett
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
J Keet
Instructed
by:
Keet Attorneys
For
the Respondent:
No Appearance.