A jewellery expert who refused to resume full-time work for 75% of her salary when the first hard lockdown eased has won a hefty payout for constructive dismissal.
Tanya Mey was awarded six months’ salary by the Commission for Conciliation, Mediation and Arbitration. The decision was upheld when the Cape Town labour court dismissed her employer’s attempt to overturn the award on November 22.
Westcor SA, which supplies retailers with fashion accessories, made Mey’s employment intolerable by imposing the pay cut with just a day’s notice then rejecting every attempt she made to find an alternative, said acting judge Suzanna Harvey.
“A fair employer would have worked with Mey to find a suitable compromise,” she said.
Mey, 37, had been a jewellery buyer at Westcor for two years when the pandemic arrived in 2020. She and other staff spent three months working fewer hours for reduced pay, with top-ups from the government Temporary Employee/Employer Relief Scheme.
Then on June 30 the Cape Town company said full-time work would resume the next day at 75% pay, and Mey emailed founder and MD Malcolm Westmore to say she could not accept a salary cut.
In a series of meetings and emails over the next four weeks, Mey suggested working 75% of her hours for 75% of her pay so she could give the rest of her attention to a side-hustle, and she told the firm about her family’s financial difficulties as a result of her husband losing his income.
She also asked whether directors’ salaries were being reduced, whether withheld salaries would be paid later, whether Westcor had considered alternative cost-cutting measures such as negotiating with suppliers, and whether there was an objective need for salary cuts, since the company did well in 2019 but passed on very little of this benefit to staff.
When none of her questions was answered and the company stuck to its guns, she resigned on July 27 and referred a constructive dismissal dispute to the CCMA.
Westcor finance manager Elana Scott told the arbitration hearing the company’s preliminary projection for the lockdown indicated a R30m loss in 2020.
But she conceded that even after stopping her provident fund contributions and taking a “payment holiday” on her medical aid contributions, Mey went home with R21,011 in July, compared with a pre-lockdown norm of R38,228.
Finding that Westcor unfairly dismissed Mey after making the employment relationship intolerable, commissioner NE Samuel said: “The employer acted unilaterally in breaching Mey’s contract. It did not engage in a bona fide consultation and immutably clung to its position.
“The fact that Mey was the only employee to object did not make the company’s conduct fair.”
In the labour court, Harvey said the 75% pay cut was indefinite, yet Westcor was busy enough to resume full-time working and had enough money to offer Mey a loan, which she declined.
Mey acted reasonably, she said, but “Westcor remained intransigent in the face of constant engagements throughout the month of July 2020”.
Harvey said Westcor blamed the lockdown for the 25% salary cut, but it had chosen this option from a range of possible responses and was therefore the author of Mey’s unhappiness. It had also refused to share relevant financial information with her.
“Just as employees may not opportunistically resign, so may it be expected of employers that they refrain from opportunistically taking advantage of their employees’ insecurities in the midst of the significant uncertainties characterising the Covid-19 pandemic,” she said.
“While it is conceivable that an employer may well have experienced financial distress during the pandemic lockdown, in response to which a salary cut may have been fair and justifiable, a reasonable factual foundation for such a finding must exist.”
Mey, from Noordhoek, now runs her own online jewellery store, curAtiv — the side hustle she wanted to devote time to while working for Westcor.
Support independent journalism by subscribing to the Sunday Times. Just R20 for the first month.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.