Whether you can demand your bonus or 13th cheque depends on your contract of employment or on historical custom and practice, says Michael Opperman from Omni Labour Consultants.
You have a right to insist on receiving your bonus or 13th cheque if it is defined in your contract of employment.
“If your employment contract states that you are entitled to a bonus or 13th cheque, but does not define the parameters, you can assume that you are entitled to it.”
It is also your right to insist on your bonus or 13th cheque if there is an undertaking from your employer to deduct a percentage of your salary monthly to make up your bonus or 13th cheque.
“If the deductions were made, you are entitled to insist on it.”
If your bonus is not defined, but sporadically given some years and others not, custom and practice will prevail on arbitrary grounds.
“The discretion of paying such a bonus or 13th cheque will rest on the same circumstances that determined previous decisions to pay or not.
On the other hand, you cannot insist on receiving your bonus if your contract of employment specifically gives your employer the right to choose when to pay a bonus or thirteenth cheque.
“If, for example, your contract of employment excludes paying every second year, this condition will prevail.”
If the bonus relies on company performance or your own performance at work, the contractual conditions of these categories must be enforced.
Opperman says your right to a bonus is not automatically annulled by the advent of Covid-19.
“The employer remains contractually liable for your bonus or 13th cheque.”
However, if there was a negotiated dispensation where your contractual bonus or 13th cheque was reduced or suspended due to Covid-19, the employer does not have to pay your bonus or 13th cheque.
If you have a problem with your bonus not being paid according to your employment contract, your complaint can be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) and if you cannot reach an agreement, to the Labour Court, which can be very expensive and cost more than your bonus.
“However, if your employer acknowledges this debt as an underpayment, the dispute becomes an unfair labour practice which can also be referred to the CCMA, which has jurisdiction to facilitate conciliation as well as arbitration,” Opperman says.