The labour court in South Africa recently considered whether an employee had a legal entitlement to accrued annual leave upon termination of employment, after it was disputed by the employer. The court had to decide whether an employer was bound by changes to its leave policy, which it said were not implemented, but had no witness to gainsay claims of what had actually happened years earlier.
“The judgment confirms the importance of employers taking special care in clarifying employee entitlements in their employment policies. It also highlights the importance of maintaining a record of the implementation and communication of salient changes,” explains Johan Botes, Partner and Head of the Employment & Compensation Practice at Baker McKenzie in Johannesburg
Botes says that the employee in Bester v Selfmed Medical Scheme (judgment delivered 31 July 2018) claimed she was entitled to over 200 days annual leave at the termination of her fixed-term contract. Her salary advice, or payslip, recorded this as the number of annual leave days due to her. The employer declined to pay the leave days claimed. It disputed whether the original terms and conditions of employment were in fact amended by a subsequent policy.
“The employee testified about the changes to the standard terms and conditions of employment brought about by the board adopting a new leave policy in 2005. The employer's witness was not in the company's employ at that time and was unable to refute salient facts supporting the implementation of the policy. The policy entitled employees to accumulate 50% of their annual leave allotment,” he notes.
The court confirmed the general position in respect of resolving disputes of fact by quoting from the leading case on the issue, Stellenbosch Farmers' Winery Group Ltd and another v Martell et Cie and others (SCA)). This case focused on the technique to resolve disputes of fact and looked at, among other things, the credibility of factual witnesses.
The court subsequently upheld the employee's claim for payment of her accumulated annual leave payable upon termination of employment.
“This judgment confirms that it is critical for any business’s long-term ability to manage employment disputes to keep detailed records. Where changes are made to terms and conditions of employment, new policies introduced or work practices amended, proper records should be maintained and preserved. Keeping detailed records will assist the organisation in dealing with disputes long after the current role-players have left the business. Important information that should be recorded includes: exactly what was changed; when amendments took effect; what prior process was followed and how changes were communicated to staff,” he says.
Botes adds, “In this technological age, it is relatively simple to track and record how policies are communicated via email, to whom such emails were delivered and who actually read the emails. Some businesses append important communications to payslips when these are distributed to staff, allowing further confirmation of the communication of important issues or workplace changes. Whatever method is preferred, sound record keeping allows parties the ability to reconstruct events when the organisational memory has faded. A system that gathers the institutional memory leaves that fall as seasons change, may prevent money from leaving the organisational coffers in years to come.”
Submitted by Baker McKenzie