The facts and issues in brief

The employer operated a short‑term incentive (STI) scheme. After a two‑day protected strike by Solidarity members in February 2023, the employer withheld the STI from employees who participated in the strike, while paying it to those who did not. The employer’s policy listed “industrial action” as a potential disqualifier for the STI.

The issue before the court was whether withholding the STI from strikers breached section 5(1) and 5(2)(c)(vi) of the Labour Relations Act 66 of 1995 (LRA) by discriminating against employees for exercising their right to strike; and whether the employer had justified the differential treatment as a rational, proportionate and legitimate collective‑bargaining measure.

What is a non‑striking bonus?

A non‑striking bonus is an extra payment made only to employees who continued working during a strike. It is intended to recognise attendance and support operations during industrial action.

Is it lawful to pay this bonus?

Yes, but only if justified. The LRA protects the right to strike; it does not, however, categorically forbid incentives for those who work during a strike. An employer must show that any differential treatment is a legitimate and proportionate collective‑bargaining tactic, not a punishment for striking or a device to coerce employees out of exercising statutory rights.

What must an employer show?

• A legitimate collective‑bargaining purpose: The measure must be aimed at advancing a lawful bargaining objective, not penalising strikers or undermining union rights.
• Proportionality and rationality: The incentive or withholding decision must be:
  • Connected to operational needs during the strike.
  • Reasonable in scale relative to the strike’s impact.
  • Temporary and tailored to the strike period or its immediate effects.
• If the benefit is excessive or the detriment to strikers is markedly out of proportion, the measure may be 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. The court held that the employer breached section 5(1) and 5(2)(c)(vi) of the LRA because:

• It offered no concrete evidence showing why withholding the STI was a suitable and proportionate response to the strike.
• It did not demonstrate the operational or financial impact justifying the measure.
• It relied on the policy wording and pre‑strike warnings, without substantiating a legitimate, proportionate bargaining rationale. The court ordered the employer to account for the STI calculation and to pay the STI to the affected employees.

What does this mean for employers and employees?

Employers may, in principle, reward non‑strikers or withhold a contingent benefit from strikers, but only where they can demonstrate a legitimate collective‑bargaining purpose; and a rational and proportionate response supported by evidence (e.g. operational exigencies, production data, the limited and targeted nature of the measure).

Policy clauses and general statements are not sufficient. The employer must justify the measure in the circumstances.

An employee’s right to participate in a protected strike remains fully protected. Differential treatment is not automatically unlawful, but it cannot be used to punish or victimise employees for exercising their rights in terms of the LRA. If the employer cannot justify the measure, it will likely be unlawful.

Conclusion

Bonuses for non‑strikers or the withholding of contingent benefits from strikers are not per se unlawful. They must be carefully designed, evidenced and proportionate to a legitimate bargaining objective. In this case, the employer failed to justify the withholding of the STI, and the court found a breach of section 5 of the LRA.