Medical scheme must cough up over R1m for woman's outstanding leave pay

Martha Bester’s payslip recorded that she had 218 days of accrued leave when she resigned as the national marketing director for a medical scheme.

But instead of the healthy payout she expected to get from Selfmed‚ she was reimbursed for just 45 days.

Questioning how the scheme arrived at an “arbitrary amount of 45 days” and requesting to see the company’s leave policy to check their maths‚ she said the company’s principal officer Christo Becker did not respond to some of her enquiries.

Not willing to let it go‚ Bester ensured that the conversation continued at the Labour Court in Cape Town‚ which last week ordered Selfmed to pay Bester more than R1-million in lieu of her accrued leave days.

Bester was initially permanently employed as a national marketing director of the scheme. The company later employed her on a fixed-term contract. Her husband‚ Leon Bester‚ was the CEO.

When her fixed-term contract was terminated in December 2014‚ her payslip recorded that she was owed 218.74 days’ accrued leave. Based on an amendment to the leave system that would prove crucial to her winning the case‚ the final tally amounted to 213 days.

Selfmed‚ marketed as a reliable medical aid without hidden costs “designed to meet your needs without breaking the bank”‚ argued that only 45 days leave days were due to her‚ which they had paid for.

Bester then pointed out in court that an amended leave policy was adopted by the company’s board of trustees in September 2005.

In his judgment‚ Judge Anton Steenkamp said Bester was a more credible witness than Becker‚ the company’s representative. “She had direct knowledge of and was present at the board of trustees’ meeting‚ where the amended leave accrual policy was adopted. She presented the court with minutes of that meeting and of the subsequent meetings where that minute was adopted. It was never rescinded‚” said Steenkamp.

“The probabilities are overwhelmingly in [Bester’s] favour. She has‚ on a balance of probabilities‚ discharged the onus to show that the amended leave policy applied to her. And applying that policy‚ she has shown through meticulous calculations by her legal team that she is entitled to the amount‚ calculated on the basis of her monthly remuneration as at December 2014‚ which was R149‚260.”

The judge said that Becker could only testify to a vague allegation by other employees in the finance department – who were never called – that the policy was not implemented as it stood. “That does not nullify the fact that the policy existed and that both parties were bound by it. Bester certainly never waived her right to be bound by it‚” ruled Judge Steenkamp.

Selfmed was ordered by the court to pay Bester R1‚189‚140 in respect of unpaid accrued leave. She was also successful in her claim for accrued interest and Selfmed was ordered to pay her legal costs.

In reaction to the judgment‚ the medical scheme said it accepted the outcome of the case.

Becker said the scheme would not infringe on the rights of any employee’s leave pay-out upon resignation without due cause.

He said when this particular fixed-term contract was terminated‚ the new board of trustees questioned if the excessive leave accrual policy only favoured Bester and her husband. They also questioned if it was in conflict with good corporate governance.

“In line with their fiduciary duties to protect the scheme and member funds in respect of the appropriateness of the payout‚ a decision was made to pay Mrs. Bester’s annual leave accrual of 45 days‚ in terms of her contract of employment and subsequent amendments thereto‚” said Becker.

He said the scheme’s policies and procedures had been reviewed and amended to protect employees‚ the scheme and its members against the huge financial risk posed by excessive leave accrual.