Legal Update - Do You Have To Pay A Domestic Worker A Christmas Bonus?
We are still very far away from the year-end festivities. We do however feel that you will do well in considering the legal background to this sometimes contentious issue – as it is not something which should be resolved or discussed only when such expectations arises during the Christmas holiday period. By discussing it before the time it would resolve unnecessary conflict in your home in a time when everyone should be unwinding!
In a Doris, a domestic worker, demands a Christmas bonus from her employer in the amount of R1 000. She has not yet been employed for longer than a year and as a result no prior agreements or expectations have been created in this regard. When Christi, her employer, informs Doris that she will not pay her a Christmas bonus … to the CCMA for unfair labour practices …
Doris is a domestic worker who has been working at a private residence in Durbanville for just under a year now. On 15 December 2015 Doris approaches her employer to demand a R1 000 Christmas bonus. Christi, Doris’s employer, is not in a financial position to offer Doris a Christmas bonus, let alone a bonus to the amount requested by Doris. Christi explains to Doris that she cannot pay her a bonus due to economic constraints but that next year they could revisit this conversation and see if things have improved. It would also be based on Doris’s performance during the year.
Doris gets very upset by this response and starts shouting at Christi, threatening to take her to the CCMA for unfair labour practices. Christi feels apprehensive and is uncertain as to her stance in law on this point, so she consults an attorney to advise her.
Upon obtaining legal advice Christi learns that labour law legislation provides no guidance on the question of bonuses. In the absence of a contractual term regulating bonuses, a previous arrangement or previous payments of a bonus Christi learns that it is up to her to decide whether she wants to pay Doris a bonus or not.
Due to a Christmas bonus being considered as gratuitous payment by an employer to an employee, it is a natural corollary that the employee is granted same in exchange for a job well done, or for exceptional service which reaches beyond the call of duty in the year that has passed. This warrants a reward or tip over and above the normal agreed upon wage for services rendered.
Things Christi was advised to consider when making such a decision were inter alia Doris’s performance in the past year and Christi’s own financial position. She should also keep in mind that, should she decide to pay what Doris has demanded, a reasonable expectation may be created in the years to come for Christi to continue to pay such a bonus.
Doris does not have an all-encompassing right to receive a Christmas bonus. Further, due to the fact that no reasonable expectation has yet been created, Christi’s reasons for and decision not to pay Doris a bonus cannot be seen as an unfair labour practice. Thus providing Doris, in this particular case, no grounds on which to approach the CCMA to claim performance from Christi.
Source – Cluver Markotter Attorneys