Marthie Bester (“the Applicant”) was initially permanently employed as the national marketing director of Selfmed (“the Respondent”). This was later converted to a fixed term contract expiring on 31 December 2014. Upon expiry of her contract, the Applicant alleged that she was owed 218.74 days’ accrued leave. However, the Respondent contended that she was only entitled to 45 days’ outstanding leave.
It was common cause that the Respondent’s Board of Trustees adopted the following resolution on 27 September 2005:
“In any year, an employee may only accumulate 50% of their annual leave entitlement. For example – if allowed 20 days leave per annum, then a maximum of 10 days may be transferred to the next year. At the end of year three, the accumulated balance may therefore not exceed 30 days. The only exception being that an 18-month window is allowed to take a year’s leave entitlement. Leave may be sold in lieu of cash provided a minimum balance of 10 days is left. Only days accumulated during previous years may be sold. Any leave sold must be approved by the CEO.”
Based on the amended policy, the Applicant’s final tally amounted to 213.5 days.
In evidence, only the Applicant and Mr Becker, on behalf of the Respondent, testified:
Throughout her testimony, the Applicant remained firm in her belief that the policy had not changed since it was adopted in September 2005. She went on to explain that she and her legal team had calculated the amount owing to her based on the accrual of 50% of her leave entitlement per year.
On the other hand, Mr Becker could only testify that he had been informed by people in the finance department that the amended policy had never been implemented. The Respondent did not produce any documentary evidence to that effect nor were any witnesses, who had direct knowledge of such an allegation, called to testify.
The technique generally employed by courts in resolving factual disputes of this nature involve an assessment of the following factors: –
- the credibility of the various factual witnesses;
- their reliability; and
- the probabilities – this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues.
As a final step, the court will determine whether the party burdened with the onus of proof has succeeded in discharging it.
In his judgment, Steenkamp J said that the Applicant was a more credible witness than Mr Becker. Not only was the reliability of her evidence backed up by documentary evidence but she had direct knowledge of and was present at the Board of Trustees meeting.
There was also no credible evidence that the policy was ever rescinded or that the Applicant and the Respondent no longer considered themselves bound by it.
The Respondent was ordered to pay the Applicant R1 189140 in respect of unpaid accrued leave. She was also successful in her claim for accrued interest and costs.
This case confirms the importance of employers taking special care in clarifying employee entitlements in their employment policies. Employers are also cautioned to review and amend their policies to protect themselves against contractually accrued leave claims.
Written by Jordan Dias and supervised by Pierre van der Merwe, 24 October 2018