In the recent case of Moraka / Road Accident Fund (2023), 32 CCMA 6.7.4 also reported at [2023] 7 BALR 786 (CCMA), it was determined that although the employee was suspended and their performance could not be evaluated, that did not mean they were automatically entitled to a performance bonus. The Applicant was a General Manager on a five-year fixed-term contract which would end in August 2021. Due to misconduct allegations, the Applicant was suspended in October 2020 pending an investigation, but the suspension was lifted in July 2021.

The Applicant was not paid the performance bonus for the 2020/2021 financial year because their work performance could not be evaluated. After their fixed-term contract had ended, the Applicant claimed that denying them the performance bonus was an Unfair Labour Practice. The Respondent put forth that the Applicant had not worked during the period of their suspension, and the performance bonus was not paid because they were to be treated as any other employee who had been absent for a lengthy period and who would also not qualify for a performance bonus.  Furthermore, the Respondent stated that the award of a performance bonus was discretionary and not compulsory.

The Commissioner noted that since this was an Unfair Labour Practice, the Applicant’s contractual entitlement to the bonus was not an issue. Still, the issue was whether the Respondent had fairly applied the Performance Bonus Policy. Since the first half of 2020 was written off for consideration of performance bonuses due to the Covid-19 lockdowns, the Applicant’s entitlement had to be based on an evaluation of their work in the second half of the year while they were suspended. Although the Applicant was ultimately exonerated after the investigation, the Respondent’s “Remuneration, Rewards and Benefits” Policy depended on an individual performance agreement concluded each year. The fact was that the Applicant had not concluded a performance agreement in the year in question.

Ultimately, the Applicant did not challenge their suspension but challenged not receiving a performance bonus, and the Court found that they weren’t entitled to it in the circumstances.

This case highlights that although being at work was out of the Applicant’s hands since they were restricted from work due to their suspension, that did not entitle them to a performance bonus, even if the outcome after the suspension was in their favour.

Article by Raina Doorasamy

Dispute Resolution Official at Consolidated Employers’ Organisation (CEO SA)