The government and civil servants are engaged in a war of words over the state's failure to pay bonuses that were due in November.
But are the bonuses a privilege or a right? The South African Labor Guide says a bonus is normally referred to as a gratuity - "in other words, a payment of gratitude by the employer to the employee in recognition of a job well done, or if you are going the extra mile. "
However, over the years most employees have come to expect the payment of the 13th cheque as a right or entitlement, or as a condition of employment.
But there may come a time, in the case of the government when the economy performs poorly, an employer is unable to pay a 13th cheque despite having paid consistently for years.
In this case, experts say it is highly necessary that the employees be informed at least six months in advance that the 13th cheque will not be paid. This is what Finance Minister Patrick Chinamasa attempted to do.
In April last year, Chinamasa announced that government had suspended civil servants’ performance bonuses for 2015 and 2016 as it sought to tame its ballooning wage bill and create fiscal space. The minister announced that the position would be reviewed in the 2017 national budget.
He said the cash-strapped government had also failed to complete payment of 2014 bonuses, while at the same time struggling to meet its US$260 million monthly salary bill.
Chinamasa said the government was “committed to paying all the outstanding bonus obligations” and bemoaned the collapse of the formal economy and the rise of the informal sector that was difficult to tax.
“I would want to clearly state that as government, we would be more comfortable with a situation where revenue growth is driven by an expanding tax base instead of continuously changing the tax policy,” he said.
MUGABE VS CHINAMASA
But Chinamasa’s pronouncement was vetoed by President Robert Mugabe, who took a swipe at him, accusing him of running a parallel government and saying the scrapping of the bonuses was not approved by the cabinet or the presidency.
Chinamasa admitted that mistakes were made and procedures were not followed. He was forced to withdraw his earlier directive and promised to pay the so called 13th cheque.
But two months later, the government is yet to pay the bonuses and workers are threatening to go on strike.
President of the Zimbabwe Hospital Doctors Association, Fortune Nyamande, says health workers are giving the government until the end of the month to pay bonuses or they will down their stethoscopes.
"We have resolved that should our 2015 bonuses not be disbursed on or before the 31st of December, our members countrywide will not be able to attend to their duties from the 1st of January 2016. Our legal advisors have also been tasked to mount a legal challenge on this contractual violation and measures will be enacted to protect our doctors from threats and victimization,"
Secretary general of the Progressive Teachers Union of Zimbabwe, Raymond Majongwe, says teachers are disillusioned and will embark on a go slow or industrial action.
PROFESSOR MOYO ATTACKS WORKERS
But Higher and Tertiary Education Minister Jonathan Moyo posted on his twitter account that some workers, including civil servants, seeking bonuses do not deserve the 13th cheque as they were “non-performers and drunkards”.
Moyo said payment of bonuses should be for extra performance at work and not an entitlement.
The question that arises is whether bonuses are a privilege or a right? In a follow up interview with Newsday, Moyo said this issue is a "legitimate and very serious debate that we should have as a nation with open minds outside cheap politics.”
He added that, “My opinion is that in a modern economy such as ours, a salary bonus should be only performance-based. There should be no entitlement to a bonus regardless of one’s performance.”
Prominent labor lawyer, Roger Matsikidze, says whether the bonus is a privilege or right depends on the contract signed by the two parties.
HIGH COURT CASE
Constitutional law expert, Professor Madhuku, says this is not the first time government has clashed with workers over bonuses as the two parties were in court in 1995 and the court ruled in favor of the government.
He says, “The state, citing financial constraints, decided not to pay a bonus in 1995 and exercised its legislative power to amend the provision on bonuses. The civil servants challenged this exercise of power by the employee, which had the effect of taking away their rights to a bonus.
"In the High Court, they succeeded. On appeal, the Supreme Court was divided. By a majority of 3-2, the Supreme Court ruled that the state had power to pass legislation which had the effect of altering its obligation with its employers (whether those obligations were contractual or otherwise)."
President of the Employers’ Confederation of Zimbabwe, John Mufukari, says it has become difficult to pay bonuses in Zimbabwe as the economy is struggling.
"I do not subscribe to that argument because the employer has been able to pay bonuses for along time, does not make it an obligation that, that bonus ought to be paid. It is understood that bonuses are a way of thanking workers, for the work done during the year.
"A way of sharing the excess that the workers produced over what was expected of them from the 12 months pay. So if no excess was produced then,were is that bonus going to come from."
But Mufukari says government must have alerted workers well in advance that it has no capacity to pay workers.
What happens if the government fails to pay bonuses? Matsikidze says it will demoralize the workers.
Madhuku says the civil servants at this juncture have a legal leg to stand on and they can successfully sue the government as it did not give them sufficient time.
He adds that the "bonus had accrued by November 2015 and the money is already due and payable and so it cannot be withdrawn"
Experts agree that employee bonuses are compensation for the work that the employee has performed. Employers often pay the employee a bonus in addition to the employee’s regular salary or wages.
Labor experts say not all bonuses are created equal and this often results in many questions about an employee’s rights and bonus laws. While some of these may be ethical questions, others are legal and require experienced legal insight.