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[2026] ZALCCT 18
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Chemical Energy, Paper, Printing, Wood and Allied Workers Union obo Members v Avacare Health Group (Pty) Ltd and Another (C438/2024) [2026] ZALCCT 18 (4 February 2026)
THE LABOUR COURT OF
SOUTH AFRICA, HELD AT CAPE TOWN
Case
No: C 438/2024
(1)
Reportable: NO
(2)
Of interest to other Judges: Yes
04
February 2026
In the matter between:
CHEMICAL ENERGY,
PAPER, PRINTING, WOOD
Applicant
AND ALLIED WORKERS’
UNION obo MEMBERS
And
AVACARE HEALTH GROUP
(PTY) LTD
First Respondent
BARRS PHARMACEUTICAL
INDUSTRIES Second
Respondent
(PTY) LTD
Date
of Hearing:
27 June 2025
Date
of Judgment:
04 February 2026
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date for handing down judgment is deemed to be
on 04 December 2026.
Summary
:
Section 77(3) of the Basic Conditions of Employment Act –
application to enforce contractual right to payment of a 13
th
cheque. Breach of Employment Contract.
JUDGMENT
DANIELS, AJ
INTRODUCTION
[1]
This
matter is concerned with an application in terms of section 77 of the
Basic Conditions of Employment Act (BCEA)
[1]
regarding a dispute which arose between the applicants and the second
respondent regarding terms and conditions relating to the
applicants’
employment contract, in particular the payment of a 13
th
cheque and whether this was a term and condition of the applicants’
employment contract to which they were entitled.
[2]
The
application is brought in terms of section 77(3) of the BCEA. The
applicants seek to enforce their right to payment of a 13
th
cheque in terms of their contract of employment and seek the
following relief:
2.1
Declaring that the Respondent's
unilateral abolition of the
payment of the 13th cheque to the Applicants' members with effect
from December 2021 is a breach of contract;
2.2
That the Respondent forthwith
restore and comply with the terms and
conditions of the Applicant's
members' employment contracts entitling
them to receive the payment of the
13th cheque;
2.3
That the Respondent forthwith within
30 (thirty) from the date of this
order, comply with the terms
and conditions of the Applicant's
members' contract of employment by paying to the members the 13th
cheque effective from December 2021;
2.4
That the Respondent desist from any
action or conduct which infringes
the Applicant's
members' rights and entitlements arising from their
employment contracts;
2.5
That the Respondent be ordered to
pay the costs of this application.
[3]
There were a
number of preliminary issues raised by the second respondent in its
opposition to the application and an application
for the joinder of
the second respondent which was dealt with before the hearing of the
merits.
[4]
I briefly set
out the background to the dispute whereafter I will deal with the
following preliminary issues:
4.1
The joinder of
the second respondent. This application was brought by the
applicant.
4.2
The three in
limine points raised by the second respondent:
4.2.1
First
,
it was contended that the application is fatally defective because
CEPPWAWU does not have the requisite authority to bring the
application.
4.2.2
Second
,
the applicant does not list the members on whose behalf the CEPPWAWU
acts; and
4.2.3
Thirdly
,
that CEPPWAWU does not have locus standi to institute proceedings in
respect of applicants who are not members of CEPPWAWU.
[5]
The
second respondent also placed in issue whether payment of the 13
th
cheque to employees was a contractual entitlement or a workplace
practice. The second respondent contended in its answering affidavit
that the applicant’s ought to have instituted proceedings in
terms of Old Rule 6/ Rule 11 of the Labour Court Rules ( by
way of
action proceedings) and not instituted application proceedings given
the material disputes of fact that are present in this
matter, that
these should have been foreseen. Despite raising this issue, Barrs
contended that it will oppose any request for the
matter to be
referred to oral evidence if the Court deemed it necessary, and
presumably, if the disputes of fact could not be resolved
on the
papers. Barrs contended that the Court must determine the matter
solely on the papers filed by the parties and must rule
in favour of
its version in the event that there are material disputes of fact
with reference to the trite legal principle in Plascon-Evans
[2]
.
I deal with the issue of whether or not there are material disputes
of fact and whether these can or cannot be resolved on the
papers
before the Court when dealing with the merits of the application.
BACKGROUND
FACTS
[6]
The dispute
in
casu
arose
in 2021 during wage negotiations between the second respondent
(“Barrs”) and its employees when Barrs unilaterally
decided that it will no longer pay its employees a 13
th
cheque and instead replace payment of the 13
th
cheque with a system of performance-based bonuses. Barrs also offered
employees who accepted this unilateral change without challenging
same, a 5.5% salary increase. This is referred to by the applicants
as the “carrot and stick approach”. In what
will be
summarized below as gleaned from the papers filed in this matter and
the correspondence by Barrs to its employees during
the negotiations,
which correspondence forms part of the affidavits filed herein,
payment of the 13
th
cheque
was
not
referred to as a workplace practice.
[7]
The employees
who are the applicants herein contend that they are contractually
entitled to payment of a 13
th
cheque annually in December.
[8]
From a reading
of the papers filed herein the following facts are not in dispute:
4.3
In 2021, Barrs
issued a letter to the Employees amid wage negotiations, advising as
follows:-
4.3.1
The company
intended to discontinue the 13th cheque and replace it with a
performance-based bonus;
4.3.2
Employees were
urged to accept this revised structure, which included forfeiting the
contractual 13th cheque in exchange for a performance
bonus and a
5.5% salary increase, effective January 2022.
4.3.3
Employees who
refused the proposal would not qualify for the 5.5% increase.
4.3.4
Employees were
required to make an election by no later than Thursday, 23 September
2021.
4.3.5
Employees were
advised that any strike action in opposition to the proposed changes
would be ineffective and futile.
4.3.6
This letter
was aimed at forcing the Employees to surrender their contractual
rights through a “carrot and stick” approach
—
offering a financial incentive for compliance and a threat of loss
for non-compliance. At the same time, Barrs discouraged
any
collective bargaining by warning that strike action would be
pointless.
4.4
Despite this
pressure and what had been communicated in the various letters by
Barrs to its employees, the employees initially stood
firm and
rejected the proposed change, maintaining their contractual
entitlement to a 13th cheque.
4.5
In October
2021, Barrs issued a further communication unilaterally announcing
the discontinuation of the 13th cheque and its replacement
with a
performance bonus.
4.6
The Employees
clearly and consistently communicated their rejection of this
proposed change, but despite the aforesaid, Barrs implemented
this
change in clear breach of the Employees’ contractual right to a
13th cheque.
4.7
In December
2021, Barrs failed to pay the 13th cheque. Instead, Employees
received a discretionary, ex gratia payment of R3 000
only.
4.8
Apart from
this R3 000.00 payment, no 13th cheque or any form of bonus has been
paid to the Employees to date.
4.9
As indicated
in the correspondence from Barrs, Employees who did not accept the
unilateral change were not given the 5.5% wage increase.
[9]
A dispute
regarding the entitlement to a 13th cheque was referred to the CCMA
in December 2021 in terms of the BCEA and resolved
in favour of the
Employees.
[10]
The CCMA ruled
that the right to the 13th cheque “
had
unilaterally been
retracted
by the Respondent on 22 October 2021
”
.
However, because the entitlement to the 13th cheque no longer existed
at the time of the referral, the CCMA held that it lacked
jurisdiction in terms of the BCEA. The CCMA ruled that the dispute
should be addressed in terms of section 64(4) of the LRA or
by
approaching the Labour Court or the High Court.
[11]
However, as
stated herein above, Barrs expressly forewarned the Employees
that industrial
action would prove futile. In a letter dated 15 September 2021, Barrs
stated that:-
“
It
is CEPPWAWU’s rejection of the proposed change that has caused
the deadlock. It appears as if CEPPWAWU intends to strike
.
…………………………………………
The
employees who do not sign to the change, will not receive the
increase. Furthermore, while such employees will be entitled to
strike, management advises that the financial situation is such that
management will endure the strike rather than agree to CEPPWAWU
demand
.
…………………………………………
While
management respects the right of employees to strike, the company’s
financial situation is such that the company would
be constrained to
endure a strike (even a long strike) rather than retain the
guaranteed 13th cheque – which is serving to
damage the
company
.”
[12]
The applicant
contends that the Employees were left with no choice but to approach
this Honourable Court, which it did with the
present application.
[13]
In the
interim, Barrs strategy had its intended effect. Following the CCMA’s
jurisdictional ruling, approximately 159 of the
original 214
employees withdrew from the dispute and accepted Barr’s terms,
forfeiting their contractual right to a 13th
cheque in exchange for
the 5.5% wage increase. This is unfortunate and appears yet again to
highlight the disparate and unequal
bargaining power employers have
in relation to their employees who are reliant on a monthly salary.
[14]
It has since
come to light that additional employees who were originally part of
this application have also since relented and accepted
the offer of a
wage increase in exchange for payment of an annual 13
th
cheque. Furthermore, some of the employees initially listed as
members in this application are no longer members of CEPPWAWU. In
light of these developments, the member list has been revised. There
are, accordingly, 45 employees who remain applicants in this
matter.
[15]
I now turn to
address the preliminary issues whereafter I will deal with the merits
of the application.
[16]
I also briefly
deal with the application for postponement which the second
respondent sought due to its legal representative withdrawing.
PRELIMINARY ISSUES
[17]
In argument
before the Court, Ms Bismillah appeared on behalf of the applicant
members of CEPPWAWU and a representative of the Company
appeared on
behalf of the second respondent.
The
postponement
[18]
The second
respondent made an application, on the date of the hearing, for a
postponement for a period of 60 days in order to seek
new legal
representation and to engage in settlement. The second respondent was
initially represented by Werksmans attorneys who
withdrew as its
attorneys of record, a notice of withdrawal having been filed on 29
May 2025, approximately a month before the
hearing of this
application.
[19]
After hearing
argument from Ms Bismilla on behalf of the applicants and Barrs
representative, I exercised my discretion and refused
the
postponement mainly for the following reasons:
19.1
Barrs
belatedly requested a postponement without bringing a formal
application for same 5 weeks (approximately 1 month) after its
erstwhile attorneys withdrew and Barrs did not tender the wasted
costs of the postponement. However as argued by Ms Bismilla, the
tender of wasted costs would do little to ameliorate the prejudice
the applicants have to date suffered as a result of the ongoing
dispute and Barrs’ unilateral change to the contractual
entitlement of its employees to the 13
th
cheque.
19.2
The
applicants were present in Court and had waited for some time already
for their application to be heard and the dispute to be
finalised,
having approached this Court as a last resort.
19.3
The
applicants were ordinary salaried employees, who live from pay cheque
to pay cheque in order to provide for themselves and their
families
and ought not to have the hearing of the application delayed any
further, especially in circumstances where the applicants
have
travelled to be at Court and in all likelihood incurred expenses to
be in attendance at the hearing. Its Union also incurred
expenses to
instruct an attorney and counsel to act on its behalf.
19.4
Despite
the contention by Barrs that the postponement will not prejudice
the
applicant’s, no basis existed for the submission. Barrs ought
to have engaged the applicants well before the hearing date
in an
attempt to agree to a postponement, alternatively ought to have
brought a formal application for same. Barrs failed to do
so, and it
further failed to tender costs, and it further failed to illustrate
that the applicants would not suffer prejudice by
the postponement.
[20]
I accordingly
refused the postponement and ordered that the hearing proceed.
[21]
During the
hearing and at the outset a number of concessions were made and it
accordingly became unnecessary to deal fully with
certain preliminary
issues raised by Barrs and dealt with by the applicant in its heads
of argument.
The
Joinder Application
[22]
An
application for the joinder of Barrs was necessitated by the
objection by the first respondent that it was not the correct party
before the Court. The first respondent had been erroneously cited
herein on the basis that the second respondent’s business
was
sold to it as a going concern. There was no objection by Barrs to the
joinder application given that it was not only an interested
party
but a necessary party in this litigation before the Court. Barrs also
has a direct and substantial interest in the outcome
of the pending
application and relief sought
[3]
.
[23]
The joinder of
Barrs was therefore granted at the outset of the proceedings.
First
point in limine -The Authority of CEPPWAWU to bring the application
[24]
The
first point in limine raised by Barrs in its answering affidavit
pertaining to the authority of CEPPWAWU to bring the application
on
behalf of its member employees, was abandoned at the hearing of the
application. The Court nonetheless considered the question
of
authority and given the explanation in the applicants replying
affidavit together with the explanatory affidavit by the attorney
for
the applicants to which the correct resolution was annexed, proved
that the authority was in place at all times. This was in
any event
an overly technical objection
[4]
by Barrs which was addressed by the applicant prior to filing its
replying papers. Barrs rightly abandoned the point at the hearing.
The point in limine in any event stood to be dismissed.
Second
point in limine – The application does not list the members on
whose behalf CEPPWAWU Acts
[25]
The second
point in limine pertained to the failure of the applicant to list the
members on whose behalf CEPPWAWU acts. From the
papers this issue was
resolved as far back as 30 October 2024 and this
in
limine
point, suffers from the same fate as the first: it is overly
technical and the issue had been remedied by the applicant when it
was first brought to the attention of the applicant’s attorney.
This point in limine is dismissed for similar reasons as
the first in
limine point.
Third
in limine point – CEPPWAWU does not have the locus standi to
institute proceedings in respect of applicants who are
not its
members
[26]
The third
point
in
limine
was
correctly conceded by the applicants, but it is not dispositive or
determinative of the dispute. The applicant simply narrowed
its list
of employees who now seek relief in this application given that many
of the applicant employees over time have capitulated
and accepted
the offer of the 5.5% increase in exchange for their contractual
right to payment of a 13
th
cheque annually and some of the employees are no longer members of
the applicant Union.
[27]
The points in
limine were all overly technical and barring the third point, the
in
limine
objections are dismissed.
MERITS OF THE
APPLICATION
[28]
The essential
dispute in this application pertains to the employees’
contractual right to payment of a 13
th
cheque annually in December.
[29]
Barrs
essentially contends that the payment of the 13
th
cheque was not a contractual right but instead a workplace practice
which had developed and was implemented over time and therefore
the
employees have no right to enforce payment of the said benefit. The
applicants contend that this version has been put up for
the first
time in this application and it is a belated attempt by Barrs to
subvert its contractual obligations to its employees,
in particular
the remaining applicants herein given that it had already conceded
that the payment of the 13
th
cheque was a contractual term and a right to which the employees were
entitled.
[30]
After careful
consideration of the papers filed of record, the heads of argument
and applicable authorities, there can be no doubt
that the employees
are contractually entitled to a 13th cheque.
[31]
As pointed out
by the applicants, which is not disputed by Barrs, the entitlement to
the payment of a 13th cheque was the subject
matter of proceedings in
the CCMA in which proceedings Barrs conceded the contractual right to
a 13th cheque. Barrs cannot now
seek to dispute that which it already
conceded without any valid explanation on affidavit before this Court
as to why it seeks
to withdraw such a concession and effectively
withdraw an admission previously made, albeit in a different forum.
That admission
has been properly placed in evidence before this Court
and no genuine dispute has been raised.
[32]
In the
Jurisdictional Ruling issued by the CCMA on 9 February 2022 under
case number WECT17009-22, the following is recorded:-
19.5
Furthermore,
the contractual right to a 13th cheque has also been
confirmed
in a settlement agreement dated 17 January 2020 signed by Barrs,
wherein the following is recorded:-
“
AGREEMENT
ARISING OUT OF…
…
The
Respondent is contractually obliged to pay each employee a 13th
cheque …”
[33]
Section 77(1)
of the BCEA confers jurisdiction on the Labour Court to determine any
matter concerning a contract of employment.
This Court has
consistently recognised the power and jurisdiction, in terms of
section 77(3) of the BCEA.
[34]
In
Aucamp
v SA Revenue Service
[5]
,
this Court confirmed that where a benefit such as a 13th cheque forms
part of the contract, an Employer must ensure that payment
is made in
terms of such contract, regardless of its financial situation.
[35]
This
Court also recently confirmed in
UIS
Analytical Services (Pty) Ltd v IDUSA
[6]
that a distinction must be drawn between the right to payment of a
bonus which right is to be found
ex
contractu, ex lege
or in a policy, without which the issue of payment of bonuses is an
interest dispute.
[36]
In light of
the above I am in agreement with the applicant, that the contractual
right to a 13th cheque is clear and apparent
ex
facie
these documents, and Barrs has not disputed these documents. There
can therefore be no question that there was a contractual entitlement
to a 13th cheque. Barrs has however refused to pay this 13
th
cheque to its employees since December 2021.
[37]
I am
furthermore in agreement with the applicants and find that Barrs is
in breach of the contract between itself and its employees.
Disputes
of fact and Plascon Evans
[38]
Despite Barrs
concession in the CCMA and in the settlement agreement referred to
above, which records that the 13th cheque was a
contractual
entitlement, Barrs, for the first time in these proceedings, attempts
to place the contractual right of the same employees
to the 13
th
cheque, in dispute by alleging that the payment of the 13th cheque
was a workplace practice.
[39]
Barrs also
alludes to operational requirements as the reason it stopped paying
the 13th cheque. This conflicts with the assertion
that the 13
th
cheque was a workplace practice, to which the employees are not
contractually entitled to. Even if the assertion of a workplace
practice does not contradict the operational requirements reasons for
non-payment, Barrs has nonetheless expressly admitted that
payment of
the 13
th
cheque was a contractual right.
[40]
Based on these
allegations, Barrs alleges that there are disputes of fact and that
the matter is therefore not suited to motion
proceedings.
[41]
As correctly
argued and submitted by the applicants, this submission regarding
disputes of fact, is without merit and must fail.
[42]
In
Wightman
t/a JW Construction v Headfour
[7]
the Supreme Court of Appeal reiterated that bald or uncreditworthy
denials do not create genuine disputes of fact.
[43]
The evidence
is clear
ex
facie
the
CCMA documentation that the 13th cheque was a contractual
entitlement. In addition, Barrs has not placed any facts before this
court to prove this allegation of a workplace practice. This is a
belated attempt to obfuscate the responsibility to pay its employees
and must be rejected as bald and far-fetched. In the circumstances,
Barr’s does not raise real, genuine and bona fide disputes
of
fact.
[44]
Plascon-Evans
[8]
confirms
that when there’s a dispute of fact between an applicant and a
respondent in motion proceedings, the Court must accept
the version
of the respondent – unless that version is so far-fetched or
clearly untenable that the Court can reject it.
I find for the
reasons set out above, that the version of Barrs is far-fetched and
untenable and must be rejected by this Court
as such.
[45]
I proceeded to
decide the matter on the papers before me in accordance with the
trite principles set out herein and the trite principles
established
by the applicable authorities cited.
Referral
to oral evidence
[46]
It is
submitted that to the extent this Honourable Court is not prepared to
accept the applicants’ version on the papers,
the dispute
concerning the nature and enforceability of the 13th cheque
entitlement may appropriately be referred to oral evidence.
[47]
The
Court in
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
[9]
,
confirmed that a matter may be referred to oral evidence where a
real, genuine, and material dispute of fact arises which cannot
be
resolved on affidavit.
[48]
The
above trite principle must be read with the principle enunciated by
the Labour Appeal Court in In
KwaZulu-Natal
Tourism Authority and Others v Wasa
[10]
where the LAC confirmed that this court has a discretion to deal with
an application “
in
any manner it deems fit
”,
which may include “
referring
a dispute for the hearing of oral evidence
”.
That discretion, in keeping with general practice and principles
applicable in relation to the determination of applications,
should
be exercised to ensure that justice is done with a view to resolving
a dispute of fact.
[49]
I
have already found that there is no real genuine dispute of fact
raised on the papers and applying
Plascon
Evans
[11]
and
Room
Hire
[12]
,
I have decided the application on the papers in favour of the
applicant.
[50]
In the present
matter, based on the undisputed fact: that the applicant employees
have a contractual right to payment of a 13
th
cheque annually in December of each year. I accordingly
find that a proper case for breach of contract has been made
out and
that this Court is empowered in terms of section 77 of the BCEA to
grant the relief prayed for in the notice of motion.
COSTS
[51]
This
only leaves the issue of costs. I have carefully considered the
position of both parties herein and the submissions made. The
parties
have an ongoing employment relationship. Whilst Barr’s approach
to this matter was ill-conceived, it appears to have
relied on and
been advised by its erstwhile attorneys who withdrew a month before
the application was heard. I have appreciation
for the respondent’s
motives, being the protection of its business, even though this
approach was misguided and a breach
of the employment contract
between it and its employees who are the applicants herein. Mulching
a party with costs would only serve
to place further strain on the
relationship in this context. Finally, I am guided by the judgment
in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[13]
and
the cases which follow,
where
it comes to the issue of costs in employment disputes.
Exercising
the wide discretion I have in terms of section 162(1) of the LRA, I
believe that this is a case where no costs order
would be
appropriate.
[52]
In the result, the following order is made:
ORDER
1.
The applicants are entitled to payment of a
13
th
cheque in terms of their contract
of employment.
2.
The second respondent, Barrs Pharmaceutical
Industries (Pty) Ltd is to pay each of
the remaining
45 applicants a 13
th
cheque for each year it has failed to pay the said annual bonus from
2021 to date of final payment (inclusive), within 10
days of
this Court’s order.
3.
No order as to costs.
Daniels, AJ
Acting Judge of the
Labour Court of South Africa
Representatives
For the
applicant:
Adv S Bismilla, Sandown Chambers
Instructed
by:
KMNS Inc Attorneys, Sandton
For the Second
Respondent: In person.
[1]
Act
75 of 1997.
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
[3]
Cite
relevant case.
[4]
Thobakgale
and Others v Manganyi and Others (JR1465/18) [2024] ZALCJHB 435 (8
November 2024) at para [11] and see important principle
at para
[12]-[13].
[5]
[2014]
35 ILJ 1217 (LC) at para [28].
[6]
[2025]
2 BLLR 207 (LC).
[7]
(Pty)
Ltd 2008 (3) SA 371 (SCA).
[8]
1984
(3) A 623 (A).
[9]
1949
(3) SA 1155 (T).
[10]
(2016)
37 ILJ 2581 (LAC) (28 June 2016).
[11]
Supra.
[12]
Supra.
[13]
Sibongile
Zungu v Premier of the Province of KwaZulu-Natal and Others
[2018]
ZACC 1.