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[2017] ZALCJHB 107
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Solidarity and Others v Denel (SOC) Ltd (JS241/11) [2017] ZALCJHB 107 (24 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 241/11
In
the matter between:
SOLIDARITY
First Applicant
F
E WORTMANN
Second Applicant
J
P C
APPELCRYN
Third Applicant
J
VAN TONDER
Fourth Applicant
and
DENEL (SOC)
LTD
Respondent
Heard:
11-12 May 2015; and 20; 21-22 January 2016
Delivered:
24 March 2017
JUDGMENT
TLHOTLHALEMAJE
J
Introduction
and background
[1]
The
applicants approached the Court in terms of the provisions of
section 77(3) of the Basic Conditions of Employment Act
[1]
(the BCEA), to claim payment of monies from the respondent (termed
variable pay) together with interest thereon from 24 July 2008.
The
claim is opposed by the respondent.
[2]
The
individual applicants’ claim is essentially that a portion of
their remuneration package was considered variable pay in
accordance
with letters sent to them on various dates that had adjusted their
remuneration packages, which pay was due to them
if certain
pre-requisites were met.
[3]
The
letters were received individually, but to a large extent were
identical, save for figures that apply to each individual applicant.
The letter in respect of the second applicant (Wortmann) records the
following:
“
1.
It is my pleasure to inform you that your Total Remuneration Package
(TRP) has been
adjusted with effect from 1 April 2007.
2.
In line with our drive to ensure a performance driven culture within
Denel, your
Total Remuneration Package has been revised i
nclusive
of a performance based incentive.
3.
Your new Total Base Remuneration Package (TBRP) will increase to from
R628 517.70
to R699 540.20 (see details in Appendix A). Your new
total Remuneration Package (TRP) will be R769.494.22 (Total Package)
per annum.
4.
The above
Total Package
includes, a 6% increase on your
current Total Base Remuneration Package (TBRP), plus an additional
salary adjustment which is a
company effort to bring your salary
close to the market. Also included is a variable pay (incentive) of
10% of your TBRP (R69.954.02
p.a)
5.
Variable Pay (Incentive)
5.1.
This
refers to a portion of your remuneration that is
on
top of your new Total base Remuneration Package (TBRP) of R69.954.02
5.2.
This
variable pay although included in calculating your Total Package of
R769.494.22, is only payable to you at the end of the Financial
year,
after the approval of financial results of our Company by the Denel
Board of Directors and in the event of reaching set objectives.
5.3.
The
variable pay portion (VP)
is
at risk
,
meaning that it is payable subject to the achievements of DSL’s
objectives as contracted between our CEO and the Denel Group
CEO.
Also it is subject to you achieving your own individual contracted
objectives in accordance with our Company’s performance
Management system.
5.4.
Please
note that your variable pay percentage of 10%, is based on your
current position and level of responsibility, should this
change for
any reason during the financial year, your variable pay percentage
will be
prorated
accordingly.
6.
Thank
you for your contribution over the past year, and best of luck with
your efforts to achieve your own objectives as well as
DSL’s
2007/8 objectives.”
[4]
The
respondent’s version was that the claims to variable pay were
subject to the provisions of its Incentive Scheme Policy
number
53,
[2]
and that the individual
applicants were not entitled to any payment on the basis that they
had not met all the conditions set out
in the policy.
[5]
The
background to the individual applicants’ claim is as follows:
3.1
The
respondent, Denel Land Systems (Pty) LTD, a division of Denel (PTY)
Ltd is a private company, with the state as its sole shareholder.
It
develops and manufactures defence systems, aviation and other
commercial products.
3.2
The
first applicant, Solidarity is a registered trade union registered in
terms of the relevant legislation. The second applicant,
Fried Echard
Wortmann (Wortmann) is an erstwhile employee of the respondent. He
was employed as a System Engineer based at the
International Golden
Group. The third respondent, Jasper Cornelius Appelcryn (Appelcryn)
was employed as a Fitter by the respondent
until his resignation. The
fourth application, Jacobus van Tonder (van Tonder) was employed as
Configuration Element Manager.
3.3
As
mentioned above, on 12 April 2007, the second applicant, Wortmann,
was advised in writing of an adjustment in his remuneration
package
to R769 494.22. The adjusted package included a variable pay in
the amount of the amount of R69 954.02, which
he claims is
entitled to plus interest thereon. He resigned from his position on
01 May 2008, with his last working day being on
31 May 2008.
3.4
The
third applicant, Appelcryn, received a similar letter on
16 April 2007, adjusting his remuneration package to R220
645.00. He claims that his variable pay was in the amount of R22
064.50, which he is entitled to plus interest thereon. He resigned
from his position on 5 June 2008, with his last working day being on
30 June 2008;
3.5
The
fourth applicant, Van Tonder, also received a letter on
11 December 2007, adjusting his remuneration package to
R150
150.50, with a variable pay of R15 015.05. He resigned from his
position on 1 March 2008, with his last working day being on
31 March 2008.
He also seeks the amount of variable pay and
interest thereon from 24 July 2008, until the date of final payment.
[6]
The
variable pay was due and payable under the following conditions,
which the individual applicants contend they had met:
a)
At
the end of the year;
b)
After
the approval of the Financial Results of the respondent by its Board;
c)
If
the individual applicants achieved their own individual objectives in
accordance with the Respondent’s Performance Management
System.
[7]
It
was common cause that previously, the respondent had in place,
Incentive
Scheme Policy number 53
,
which was introduced in 2003. On 18 September 2007, the
respondent’s Board approved a new Policy 53 whose
implementation
was backdated to 1 April 2007. According to the
respondent, its EXCO had approved the new incentive scheme in
principle on 16 October 2006,
and the previous scheme under
the old Policy 53 was withdrawn. The variable pay was due and payable
with effect from 25 July 2008
with the Board having
approved payments a few days earlier.
[8]
The
objectives of the
2007 Policy 53
version were as follows:
“
1.1
To drive behaviour supportive of Denel’s strategic intent and
objectives.
1.2
To drive business objectives to ensure Denel turnaround.
1.3
To measure, assess and reward individual excellence in performance.
1.4
To enable attraction and retention of competent, performance driven
employees.
1.5
To create a performance driven culture and reward performance.
1.6
To establish a commercial mindset and improve Human Capital returns.
1.7
To implement market related remuneration, incentive and reward
principles.
1.8
To achieve the objectives of this policy, it is a requirement that
all employees contribute
to the achievement of their respective
entities and that the individual performance be taken into account
for all participants
of the incentive scheme as defined within this
policy through performance management within Denel.”
[3]
[9]
The
2007 Policy, in accordance with its objectives, introduced the
concept of Variable pay (VP) and a Performance Management System
(PMS). The relevant clauses for consideration in respect of the claim
before the Court, which the respondent heavily relied upon
for its
contention that the applicant’s claim is without merit are as
follows:
“
4.
INCENTIVE SCHEME GUIDELINES AND PARTICIPATION:
4.1
The application of this incentive scheme will depend on the various
tasks and levels
of contributions made by individuals and or teams
within a participating entity.
4.2
……
4.3
……
4.4
……
4.5
All persons no longer in the employ of the company at the bonus pay
out time will
not be entitled to incentive bonuses.
7.
PAYMENT OF BONUSES:
Payment
of the bonus (where applicable) will take place as soon as the annual
financial statements have been audited and approved
by the Denel Pty)
(Ltd) Board and formal measurement against contracted entity targets
have been completed. The maximum bonus that
will be payable for the
different categories will be based on a percentage of total base
remuneration package (TBRB) as indicated
in the attached Annexure ‘A’
subject to individual performance management assessment rating.
.
. .
9.
TERMINATION OF EMPLOYMENT BEFORE PAYMENT OF INCENTIVE BONUS
Termination
of employment for any reason other than retirement, retrenchment,
disability or death results in cancellation of participation
in the
scheme and will result in the forfeiture of any potential bonus
payment for the current year. Participants must be in the
employ of
the entity or Denel to qualify for an incentive bonus unless
otherwise agreed in writing. When a participant retires,
is declared
permanently disabled, dies in the service or retrenched, a pro rata
bonus payment will be made, if due.”
[10]
The
policy related to the Performance Management System, Policy 36, is
intrinsically linked to Policy 53 of 2007. It is common cause
that
Policy 36 was also not finalised as at 1 April 2007, but that it was
applied to employees once finalised during the course
of 2007 in the
same manner as the
2007 Policy 53
was, including retrospective
application from 1 April 2007.
[11]
The
individual applicants contended that they had accepted the
respondent’s adjustment in the remuneration packages together
with the preceding conditions. They further contended that they had
complied with the conditions and performance related changes
implemented in accordance with Policy 36 when it was implemented
during the course of 2007 and that despite demand, the respondent
neglected and/or refused to make any payments.
[12]
The
respondent on the other hand contended that the individual applicants
had resigned in March, May, and June 2008 respectively,
prior to its
Board approving payment of the variable pay, and had left its employ
as at the date of actual payment being 25 July
2008. According to the
respondent, since it was common cause that its financial year ended
on 31 March, and the variable pay was
paid on 25 July 2008 after it
was approved by the Board a few days earlier, the individual
applicants therefore did not qualify
for benefits in view of the
various clauses in Policy 2007.
[13]
Central
to the respondent’s contention is that the applicants were at
all material times subject to the Incentive Scheme Policy
Number 53
effective from 1 April 2007, and that they had not met the
conditions set out in the Policy. According to the
respondent, the
applicants sought to selectively rely upon partial or incomplete
compliance with certain conditions, and have in
the process,
deliberately disregarded the fact that they had not met the policy
conditions of being employed at the time of the
incentive bonus
pay-out.
Issues for
consideration
[14]
The
Court is called upon to consider:
1.
the
validity of the respondent’s 2007 Incentive Scheme Policy
Number 53;
2.
whether
it was applicable to the individual applicants and if so;
3.
whether
the conditions for receipt of a bonus were met by the individual
applicants, more particularly as detailed in their performance
contracts;
4.
whether
the condition that the recipients be employed at the time of bonus
payment was met by each individual applicant; and if
the Policy
conditions were not met; and
5.
whether
the individual applicants have any alternative basis for the claim
other than pleaded.
[15]
The
applicants disputed being aware of the 2007 version of the policy.
Central to the dispute was whether the policy was sufficiently
accessible and communicated to all employees. The individual
applicants alleged that Policy 53 was never communicated to them
whilst they were in employ of the respondent, and was therefore not
valid. The applicants relied on their performance contracts,
and
contended that there was no policy implied or otherwise, that was
part of the performance contracts. They further contend
that in
the alternative of the policy being valid, it was not applicable to
the claim of incentive bonus.
Policy 53: Were the
applicants aware of it?
[16]
It
must be stated from the outset that I find difficulty with the
applicants’ contentions that they were not aware of Policy
53
of 2007, or that it was not communicated to them. This after their
belated concessions that this policy was indeed published
on 23
October 2008 at a site where Worthmann was based, and was readily
available at Configuration and the HR departments.
[17]
The
respondent’s Senior Manager: ICT and Configuration Manager,
Leoni Londt (Londt), had testified that since 2002, the respondent
has had an intranet with a real-time link to DCO Head office
policies, for all employees to access, and had regularly updated
information on the intranet and advising employees of how to access
the Denel Site from the DLS Intranet under the Denel Policies
Link.
[18]
It
was not contested that all employees had access to the intranet, and
those that did not, like artisans, could request any document
or
policy from their foremen or from Content Management. Londt had in
the performance of her functions regularly sent e-mails to
employees
informing them of updated policies available on the DLS Reports menu
in the General Group, advising them on how to access
these policies,
and that should they require any assistance, the ICT helpdesk was to
be contacted. Van Tonder was appointed
by Londt in the
Configuration Department (between 2002 and 2007), and had regularly
sent out e-mails to other employees informing
users as far back as
September 2002 that the Denel Policies and Procedures were available
on the intranet.
[19]
Hugo
Ivy (Ivy), who was previously employed as the Human Resources
Director based at the Corporate Office (Denel Corporate Office),
had
further testified that the concept of variable pay was introduced in
the new scheme in 2006/2007 which was approved by the
Board. Before
then, the new policy was discussed with organised labour in various
meetings. Those meetings were attended by representatives
from
Solidarity, the first applicant. Van Tonder conceded that he had
attended feed-back meetings called by Solidarity. Inexplicably,
he
could not recall whether variable pay or performance management
systems were issues discussed amongst many others in those meetings.
Be that as it may, I am prepared to accept that new policy was
discussed with organised labour at various forums, executive teams,
HR teams, and advertised through road shows.
[20]
According
to the respondent, after the final approval by the Board, the policy
was then implemented retrospectively from April 2007
to coincide with
the start of the financial year. The decision to implement the new
policy with effect from April 2007 was discussed
in the labour forum
meetings at which Solidarity was also present, and as far Ivy could
recall, labour did not raise any objections
to the implementation,
other than raising the concern that the performance management system
should be fair and objective.
[21]
It
is common cause that the policy was available on the respondent’s
intra-web along with all other policies of the respondent.
I accept
that as at April 2007 the document was not available in draft or
final format. However, it was common cause that
Solidarity had
meetings with members at the respondent’s premises where
important information was provided to employees.
Solidarity also sent
out news flashes to its members with updates on the policy.
[22]
Two
meetings
[4]
were held with the
Denel Labour Forum where the incentive scheme was addressed. In the
second meeting the forum was advised that
the scheme would be
implemented mid-year (mid 2007) and further that in terms of the
scheme employees would need to be employed
at the time of the pay
outs of the bonuses being paid
[5]
.
The last engagement on the issue of the policy with the unions was on
12 march 2007.
[23]
The
implementation of the two policies according to Ivy, also followed
upon consultations with the labour forum on 9 February 2007,
and
again, this position was not challenged by the unions. Once these
policies were approved, they were then placed on the respondent’s
intranet for accessing by all employees. E-mails were also sent to
employees informing them of the availability of the new policies.
Thus, if employees wished to challenge the policy, they could have
approached the HR Department, or if no resolution was found,
to have
referred the dispute to the CCMA or the bargaining council.
[24]
Thulani
Mahlanzi, the respondent’s Executive HR Manager had also
confirmed that meetings were held at the level of RTCC (Corporate
Office) in the presence of the group CEO, the divisional CEOs and
representatives from labour. In his capacity, he had presided
over
such meetings, including where performance management systems were
discussed. Those discussions also covered issues surrounding
an
update on the incentive scheme and the policy.
[25]
In
the light of the above factors, it is my view that it is indeed
disingenuous on the part of Solidarity or the individual applicants
to contend that they could possibly not have been aware of the new
policy, especially in circumstances where Solidarity had regularly
updated its members though their own bulletins distributed on the
intranet.
Validity of the
Incentive Scheme Policy Number 53 of 2007 and whether it was
applicable to the individual applicants
[26]
Having
established that the applicants were definitely aware of Policy 53 of
2007, the next issue for determination is whether that
policy was
valid. It appears that the applicants’ contentions are premised
on their view that incentive bonuses prior to
the financial year
2007/2008 were regulated by Policy 2003, which they accept, had
formed part and parcel of their conditions of
employment. The
introduction of the varied or changed policy in 2007 however affected
their terms and conditions of employment,
and their argument was that
it was not done lawfully. It was further argued that the 2007 Policy
could not therefore be read to
form part of the contracts between the
parties, more particularly in view of the adjustment letters
pertaining to their remuneration.
[27]
Prior
to dealing with the arguments raised on behalf of the applicants, a
few observations need to made about how the parties had
presented
their respective cases in these proceedings. Too much time and effort
was spent on technicalities pertaining to the differences
between the
2003 and 2007 policies; the issue whether there were consultations or
negotiations surrounding the policies, and whether
these in essence
constituted a change to the terms and conditions of employment.
Ultimately however, the issue remains whether
policy 2007 was
applicable to the individual applicants as at the time they left the
employ of the respondent for the purposes
of a determination whether
they are entitled to their claim or not.
[28]
Having
assessed the evidence and the arguments presented in regards to
whether policy 2007 was valid or not, it needs to be stated
that
there are various hurdles faced by the applicants in this case, which
in my view, makes their arguments unsustainable in both
law and
logic. My conclusions in this regard are fortified by the following
factors:
28.1
The
applicants were prepared to accept that Policy 2003 formed part and
parcel of their terms and conditions of employment. In the
same vein,
they had strenuously emphasised that the remuneration adjustment
letters equally formed part and parcel of their terms
and conditions
of their employment. In respect of both documents, I did not
understand the applicants’ case to be that these
were unlawful
as they were not a subject of negotiation;
28.2
The
2007 Policy and its adoption by the respondent’s Board as
illustrated above involved a process of consultations, road
shows and
dissemination of information in that regard on all fronts. This
included engagements with labour, engagements at EXCO,
the Board and
all stakeholders in the process leading to adoption of the policy,
which it was envisaged that it would be implemented
with effect from
April 2007;
28.3
I
am prepared to accept that the adoption and implementation of Policy
2007 merely followed a process of consultation with all the
stake-holders. It was not disputed that when the new CEO took over as
attested to by Ivy, ways and means had to be looked at as
to how to
rescue the respondent from its then parlous state, including how to
incentivize the employees. I have no reason to doubt
that under the
circumstances, management had to exercise its prerogative and to
implement policies that would enable it to attain
its objectives in
turning the business around;
28.4
To
a large extent, the individual applicants, and in particular, Van
Tonder, conceded that it was within management’s prerogative
to
implement policies. It therefore follows that the process in that
regard can only be deemed to have been consultative, and in
my view,
there was no need for the respondent to engage in negotiations over
the policy;
28.5
To
the extent that the process leading up to the adoption and
implementation of Policy 2007 was merely consultative, if Solidarity
was aggrieved about that process or its ultimate result, various
options were available to it at the time, including
calling
upon the employer to restore the
status
quo
in terms of the provisions of section 64(4) of the LRA, failing which
it could have called out a strike. Solidarity could also
have sought
an interdict from this Court;
[6]
28.6
It
therefore
did
not assist the applicants’ case for Wortmann in his evidence to
simply contend that he and the Union had strenuously contested
the
applicability of the policy internally. Under cross-examination, he
had conceded that if Solidarity was unhappy with the validity
of the
policy it could have approached this Court. The fact that Wortmann
had challenged the policy post the termination of his
employment as
evinced by his letter to the CEO of 16 July 2008
[7]
does not take his case further insofar as it can be alleged that the
policy was challenged;
28.7
Ultimately,
the applicants did not refer a dispute to show their displeasure with
the new policy, and on the respondent’s
uncontested version,
the policy remained valid and applicable until it was again amended
in 2013. Furthermore, respondent’s
evidence that the policy was
implemented in similar circumstances to other affected employees
remained uncontested;
28.8
The
applicants’ attempt at raising the issue of the validity of the
policy within the context of a statement of claim in terms
of the
provisions of section 77 of the BCEA is equally problematic. This is
particularly so when it is contended that the amendments
and/or
variations of their conditions of employment should have been
negotiated and agreed to. The facts of
Mazista
Tiles (Pty) Ltd v National Union of Mineworkers and Others
[8]
as
relied upon on behalf of the applicants are clearly distinguishable
from the facts in
casu,
in that the dispute referred for determination in
Mazista
pertained
to a retrenchment dismissal, and was referred for determination in
terms of the provisions of the then section 187(1)(c)
of the
LRA;
[9]
28.9
Equally
so with
Abrahams
v Drake & Scull Facilities Management (SA) Pty Ltd
,
[10]
which the applicants sought to rely upon
,
the
dispute in that case concerned a single individual who had initially
referred a dispute pertaining to unilateral changes to
terms and
conditions of employment to the CCMA. The dispute remained unresolved
at the CCMA, and being a single individual, the
applicant therein had
approached the Court initially on an urgent basis which matter was
struck off the roll on account of lack
of urgency, and was
subsequently referred for oral evidence before Steenkamp J;
28.10
Even
if it were to be accepted on the proposition in
Abrahams
that
this Court has jurisdiction to determine whether there was in fact a
unilateral variation of the individual applicants’
terms and
conditions of employment, the fact remains that procedural
requirements under section 64(4) of the LRA obliged the applicants
to
have first referred such a dispute to the CCMA as was the case in
both
Abrahams
and
Mazista.
To
this end, the applicants cannot be allowed to circumvent those
provisions through direct access to this Court via the provisions
of
section 77 of the BCEA;
28.11
In
the light of the above factors, since the applicants were prepared to
accept that Policy 2003 and their remuneration adjustment
letters
varied their terms and conditions of employment, Policy 2007 equally
had the same effect, and is therefore deemed to have
been valid. The
fact that the policy was not a subject of negotiations cannot be lead
to the conclusion that it was unlawful or
invalid. The respondent, as
it had done in the past, had exercised its prerogative in adopting
and implementing that policy, which
for all intents and purposes, was
applicable to all its employees, including the individual applicants.
[29]
Central
to this dispute however is whether Policy 2007 was applicable to the
applicants
at
the time
that they left the respondent’s employ in the financial year
2007/2008. Thus, if it is found that the policy was not applicable
to
their contracts of employment for the year 2007/2008 at the time that
they left the respondent’s employ, they would be
entitled to
the relief that they seek. This is premised on the fact that their
letters of adjustment would then be the sole determining
factor in
deciding whether they are entitled to variable payments or not.
[30]
A
determination of the above issue will further dispose of the question
or arguments raised by the applicants in the alternative,
to the
effect that even if it were to be found that the Policy 2007 was
valid, the issue for consideration was whether the individual
applicants were still entitled to the incentive portion of the TBRT,
notwithstanding the terms and conditions of that Policy. In
this
regard, it was contended that clauses 4.5 and 9 of Policy 2007 never
formed part of their respective bonus incentive conditions
contained
in their remuneration adjustment letters.
[31]
The
starting point is that it cannot be correct that the remuneration
adjustment letters should be read in isolation, particularly
in view
of the conclusion reached that Policy 2007 was valid and applicable
to all employees. It was not in dispute that Policy
2007, in
accordance with its objectives, introduced the concept of Variable
pay (VP) and a Performance Management System (PMS),
and accordingly
Performance Management System (Policy 36) was intrinsically linked to
Policy 53 of
2007. Policy 36
was adopted and implemented in the same
manner as the
2007 Policy 53
was, including retrospective application
from 1 April 2007. The payment of variable pay therefore could not
have been considered,
approved or made in isolation, without regard
to the provisions of Policy 36.
[32]
The
contention that clauses 4.5 and 9 of Policy 2007 in any event never
formed part of their respective bonus incentive conditions
contained
in their remuneration adjustment letters amounts to splitting of
hairs. As correctly pointed out on behalf of the respondent,
the
applicants seek to approbate and reprobate, and to nick-pick from
these policies and letters as to what should and should not
apply to
them.
[33]
Of
further importance in this case is the timeline between adoption and
implementation of the Policy 2007, the timing of individual
applicants’ resignation, and the specific conditions in the
adjustment letters. It was conceded by the respondent that as
at the
end of March or 1 April 2007, the Policy 2007 document had not been
circulated, nor approved by the Board. According to
Mahlinza, only
the principles in regard to the policy had been approved by the Board
at that time.
[34]
A
circular was sent to all staff on 16 July 2008 by the General
Manager, Wolhunter, advising them
inter
alia
that the Board had approved the incentive bonus for the year up to 31
March 2008 on 15 July 2008. It was further indicated in that
circular
that not all employees qualified for bonuses applicable to the year
up to 31 March 2008 in view of the Provisions of Policy
53 of 2007.
[35]
The
individual applicants resigned and left the respondent’s employ
on 31 May; 30 June; and 31 March 2008 respectively,
and it was
not in dispute that the respondent’s financial year for the
purposes of any payments was from 1 April 2007 to
31 March 2008.
Thus, any variable pay due to employees would have been paid on 25
July 2007.
[36]
On
18 September 2007, the respondent’s EXCO approved the incentive
scheme ‘in principle’, withdrew the 2003 policy,
and then
replaced it with policy 53 of 2007. The new policy was to be
implemented with effect from 1 April 2007, and
there is
nothing to gainsay the respondent’s contentions that even
though the policy is dated 13 June 2007, it was legally
effective
from 1 April 2007 to coincide with its financial year.
[37]
The
implication from the above is that even if the individual applicants
had met other conditions applicable for the purposes of
the variable
pay, clause 4.5 of Policy 53 of 2007 excluded “
all
persons no longer in the employ of the company at bonus payout time
”.
Furthermore, paragraph 5.2 of the adjustment letters specifically
stated that the variable pay was due at the end of the
financial
year, and after the approval of the financial results by the Board.
Thus, as at 24 July 2008 when payments
were made, all the
individual applicants were no longer in the employ of the respondent
and therefore, in accordance with clause 4.5
of the policy, they
could not have benefitted.
[38]
Significant
with Wortmann’s evidence was that after he had handed in his
resignation, he spoke to his line manager and the
CEO who had asked
him whether anything could be done to persuade him to stay. His
contention however was that he had a lucrative
offer waiting for him
in the UAE, and that his resignation had nothing to do with his
salary. It was common cause that he left
at the end of May 2008 when
the payments were due on 24 July 2008. According to him, had he
stayed a further two months in order
to benefit from the scheme, he
would have lost out on the offer in the UAE. From these contentions
alone, it should be inferred
that Wortmann was indeed aware of the
proviso in the policy that he stood to forfeit the bonus should
pay-out time come when he
had left. He nevertheless made his choice
to leave.
[39]
Clause
9 of the policy is even more emphatic as it excluded employees who
had terminated their services on any reason other than
retirement,
retrenchment, disability or death. An additional proviso to clause 9
was that exceptions could be made unless there
was an agreement in
writing. No such exceptions were made in this case.
[40]
It
cannot be doubted that the above clauses 4.5 and 9 of policy 2007 are
in sync with the objectives of that policy, which are to
inter
alia
,
measure, assess and reward individual excellence in performance; to
enable
attraction
and retention
of competent, performance driven employees. It would not make sense
to have these benefits in place only not to achieve the intended
objectives.
[41]
In
the light of the evidence led, and the submissions made on behalf of
the parties, I am satisfied that the applicants were fully
aware of
the provisions of policy 53 of 2007 as at the time that they resigned
from the employment of the respondent. I am further
satisfied that
this policy 53 of 2007 was valid and binding on them, and that
despite having met some of the conditions applicable
in regard to
benefitting from the incentive bonuses, the provisions of clauses 4.5
and 9 of that Policy, read together with specific
conditions outlined
in the adjustment letters precluded them from benefitting. The fact
that the individual applicants met some
of those conditions did not
imply that payments were automatically due and payable. All
conditions of payment had to be met.
[42]
In
regards to the issue of costs, the respondent tendered wasted costs
following the adjournment of proceedings on 21 September
2016. Wasted
costs in respect of proceedings on 22 September 2016 were reserved.
Even though the reason for the adjournment was
for the applicants to
consider whether an official from Solidarity should be called upon to
testify or not, and ultimately did
not do so, there is no reason in
law or fairness why any party should be liable for those costs. In
respect of the costs of main
claim, I am also of the view that a
costs order is not warranted.
Order
[43]
Accordingly,
the following order is made:
1.
The
applicants’ claim as brought in terms of the provisions of
section 77(3) of the Basic Conditions of employment is
dismissed.
2.
There
is no order as to costs.
__________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES
On
behalf of the Applicants:
Adv Corné Goosen
Instructed
by:
Serfontein, Viljoen & Swart Attorneys
On
behalf of the Respondent:
Mr Jeremy Crawford of Crawford and Associates
[1]
Act 75 of 1997.
Section 77(3) provides:
“
The Labour
Court has concurrent jurisdiction with the civil courts to hear and
determine any matter concerning a contract of employment,
irrespective of whether any basic condition of employment
constitutes a term of that contract.”
[2]
Effective from
2007.
[3]
Page 42 of the
trial bundle of documents.
[4]
Which took place
on 3 November 2006 and 12 March 2007.
[5]
As recorded in the
minutes of the meeting.
[6]
I
ndependent
Commercial Hospitality and Allied Workers Union and Others v
Commission for Conciliation, Mediation and Arbitration
and
Others
[2015]
9 BLLR 958
(LC) at para 23-25.
[7]
Page 176 of the Respondent’s
Bundle.
[8]
2004 (25) ILJ 2156 (LAC).
(
Mazista
)
[9]
Which provided that:
“
1.
A dismissal is automatically unfair if the employer, in dismissing
the employee,
acts contrary to section 5, or, if the reason for the
dismissal is-
(a)
………
..
(b)
………..
(c)
to compel the employee to accept a demand in respect of any matter
of mutual interest
between the employer and the employee.”
[10]
(2012) 33 ILJ 1093
(LC);
[2012]
5 BLLR 434
(LC). (
Abrahams
)