Aadil Patel | Practice Head | Sector Head | Director | Employment Law | Cliffe Dekker Hofmeyr | mail me |
Can employers pay bonuses to non-strikers during a protected strike? During a protected strike, tensions rise and both sides make difficult choices.
Here, we explore the legal position by examining Solidarity obo C J Arendse and 38 Others vs Heineken Beverages (Pty) Ltd, a recent Labour Court judgment.
The facts and issues in brief
The employer operated a Short-Term Incentive (STI) scheme. After a two-day protected strike by members of Solidarity in February 2023, the employer withheld the STI from employees who participated in the strike. At the same time, it paid the STI to employees who continued working. The employer’s policy identified “industrial action” as a possible disqualifier for the STI.
The court had to determine whether withholding the STI from striking employees breached sections 5(1) and 5(2)(c)(vi) of the Labour Relations Act 66 of 1995 (LRA).
Specifically, the court considered whether the employer discriminated against employees for exercising their right to strike. In addition, the court assessed whether the employer justified the differential treatment as a rational, proportionate and legitimate collective bargaining measure.
What is a non-striking bonus?
A non-striking bonus refers to an additional payment made exclusively to employees who continue working during a strike. Employers usually introduce these payments to recognise attendance and maintain operations during industrial action.
Importantly, discussions around bonuses during protected strikes often focus on whether these payments encourage operational continuity or unfairly penalise striking workers.
Is it lawful to pay this bonus?
Yes, but employers must justify the measure properly. The LRA protects the right to strike. However, it does not completely prohibit incentives for employees who work during industrial action.
An employer must demonstrate that any differential treatment serves a legitimate and proportionate collective bargaining purpose. Employers cannot use bonuses during protected strikes to punish employees for striking or to pressure workers into surrendering their statutory rights.
Employers must establish the following:
- A legitimate collective bargaining purpose – the measure must support a lawful bargaining objective. It cannot aim to penalise striking employees or undermine union rights.
- Proportionality and rationality – the incentive or withholding decision must:
- Connect directly to operational requirements during the strike.
- Remain reasonable in scale relative to the impact of the strike.
- Stay temporary and tailored to the strike period or its immediate effects.
- If the benefit becomes excessive, or if the detriment to striking employees becomes disproportionate, the measure may become unlawful.
Why was the employer not successful in this case?
The employer withheld the STI from employees who participated in a two-day protected strike.
However, the court found that the employer breached sections 5(1) and 5(2)(c)(vi) of the LRA for several reasons:
- The employer failed to provide concrete evidence showing why withholding the STI represented a suitable and proportionate response to the strike.
- The employer did not demonstrate any operational or financial impact that justified the measure.
- The employer relied mainly on policy wording and pre-strike warnings. However, it failed to substantiate a legitimate and proportionate bargaining rationale.
As a result, the court ordered the employer to account for the STI calculation and pay the STI to the affected employees.
The judgment highlights that employers cannot rely on general policy wording alone when implementing bonuses during protected strikes. Instead, employers must support these decisions with clear operational evidence.
What does this mean for employers and employees?
Employers may, in principle, reward non-striking employees or withhold contingent benefits from striking workers. However, they must demonstrate a legitimate collective bargaining purpose and provide evidence supporting a rational and proportionate response. Examples include operational exigencies, production data and proof that the measure remained limited and targeted.
Policy clauses and broad statements will not suffice. Employers must justify the measure within the specific circumstances of the strike. At the same time, employees retain full protection for participating in protected strikes.
Differential treatment does not automatically become unlawful. However, employers cannot use bonuses during protected strikes to punish or victimise employees for exercising their rights under the LRA. If the employer cannot justify the measure adequately, the courts will likely regard it as unlawful.
In conclusion
Bonuses for non-strikers or the withholding of contingent benefits from striking employees are not automatically unlawful. However, employers must design these measures carefully, support them with evidence and ensure they remain proportionate to a legitimate bargaining objective.
In this case, the employer failed to justify withholding the STI. Consequently, the court found that the employer breached section 5 of the LRA.
