Bonuses and the doctrine of legitimate expectations

Much said concerning civil servants bonuses for 2015 that are still unpaid. Government has assured them that they will be paid. The two main talking points have been whether government can afford to pay and whether they should pay them at all. Do civil servants really deserve a bonus? Does anyone ever have a guaranteed right to a bonus? How annoying it is for civil servants that the whole of Zimbabwe is so keenly interested in their pay packets. However we cannot help it because civil servants salary issues are amongst our favourite national pastimes. One view is that a bonus is not a right but merely an optional extra token of appreciation for work well done. That is the general definition. On the other hand is the view that a bonus is a right and not a mere option. It is not an issue if it is contained in a contract of employment. However it may not be expressed in a contract but only becomes a tradition over time because it paid every year so much that employees come to expect it as a right. That expectation is deemed as legitimate and is protected by law. We shall examine the doctrine of legitimate expectation as it applies to the payment of bonuses and other perks. Two dominant but divergent views from government came out and got us all talking passionately on kombis and posting things as we do on Facebook and Whataspp.

What President Mugabe said
…on civil servants that benefit cannot be withdrawn because it has become a right. That is there in the rules governing the handling of public servants. When they are given a benefit we cannot reverse it at all. It has become a right and that is what we stand by. So your bonuses will come to you

What Professor Jonathan Moyo said
'…'Well I'm sympathetic to the view that a bonus should be for extra performance and not an entitlement and leaving your jacket in the office to go and booze is not a legitimate basis for expecting bonus as an entitlement…. 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.

Naturally what the unamused civil servants' leader replied
……this is a very careless statement which shouldn't have been made when people are expecting their bonuses. This is irrelevant because this is a universal matter for civil servants. Bonuses are well deserved and should be paid.

So who was right?

What the law says
Our labour laws recognise the doctrine of legitimate expectation. This is expressed in Section 12(B)3 of the Labour Act as it relates directly to renewal of fixed term contracts. Simply put this is when a person's contract is for a defined duration eg three months or whatever fixed period. When that period lapses two things happen. Either the person simply stops coming to work or the contract is renewed for another set period. There is usually no problem until a contract is renewed so often that the employee develops an expectation that the contract will be always be renewed. This is simply what the president was saying only that he related the principle to payment of bonuses. The principle does not only apply to renewal of fixed term contracts but can apply to other aspects that arise out of a working relationship such as bonuses and other perks such as housing and transport. The principle is intricately linked to the tacit and express conduct of the employer in developing these expectations in the mind of the employees. If the employers conduct and statements are to the effect that a particular contract or benefit will continue and gives no express or implied indication that anything will change and that it is business as usual expectations naturally develop. These expectations are deemed legitimate and are protected by law.

What makes expectations legitimate
Merely expecting something to happen just because it has happened before even repeatedly for example a Christmas party does not necessarily make the expectation legitimate. A number of factors help in distinguishing between legitimate expectations from mere hopes and wishful longings.
Firstly the representation that gives rise to the expectation must be clear and unambiguous. An example is when an employer gives a definite promise that something will happen or will be given. The best example is the President's unequivocal promise about paying bonuses. Secondly is that the expectation must be reasonable. This is a matter of opinion on what constitutes reasonableness in this context. Is it reasonable for civil servants to expect a whole month's extra salary in this punishing season where some people are going for months without getting their salaries? Thirdly the representation must have been induced by the employer. In this case the government has always paid its workers bonuses no matter what since time immemorial so it is not unreasonable for civil servants to expect it to continue to be paid as always. Availability of funds or lack thereof has nothing to do with anything and does not diminish the expectation or remove its legitimacy. The people expect their money and are waiting.

It is the employee who must prove that a reasonable expectation developed and that it developed as a result of the employers conduct. So in this case if Government wakes up tomorrow and announces as it sometimes does that on second thoughts the bonus will no longer be paid then civil servants will have a fight on their hands to prove that the expectation is legitimate and is protected by law.

The legitimate expectation principle guarantees fairness within a contractual relationship and is there to ensure that each party keeps its promises and does not wilfully breach long standing practices. The employer also develops legitimate expectations that employees will be loyal and will give of their very best at all times while they are in employment.

The Professor or the President. Who was right?
The Professor was right and on point about the universal principle of bonuses. Bonuses should be performance based. It is not a secret that most (not all) civil servants in this country have a general lethargic attitude to their work. Correspondence is rarely responded to, response is slow and awful for even the most basic things, apathy and general lack of interest and enthusiasm is the work ethic in many government offices. Yes and jackets on chairs as the Prof rightly noted are the order of the day. However if Government itself has given the impression to its workers and to everyone that all these indiscretions do not matter and that bonuses will always be paid regardless of performance then the Professor is wrong. Bonuses must be paid no matter the performance because legitimate expectations arose and government itself did much to feed the expectations. It is unlawful to suddenly turn back now and stop paying because performance is unsatisfactory. Civil servants cannot be punished for having a benevolent employer who expects very little from them and always rewards them with an extra month's salary no matter what. The law is the law so the President was right in this regard. Bonuses must be paid as they have always been paid until government starts to link performance with rewards and this becomes the set principle. How and from where government gets the money to pay these promised bonuses is its own business. The business of civil servants is to be paid. Our business as the public is to keep talking and forwarding memes while we watch and wait with bated breath.

Miriam Tose Majome a lawyer and a teacher. She can be contacted on enquiries@legalpractitioners.org