A 2026 Labour Court ruling decision in Chemical Energy, Paper, Printing, Wood and Allied Workers Union obo Members v Avacare Health Group (Pty) Ltd and Another (C438/2024) ZALCCT 18 (4 February 2026) (the ‘Avacare case’) confirms that employers may not unilaterally abolish a contractual 13th cheque.
In short, if your 13th cheque is part of your employment contract, your employer cannot stop paying it without your agreement or a lawful process
Written by Roy Bregman, admitted attorney with over 51 years’ experience in South African labour and employment law.
In South African employment law, the starting point is simple: an employer must honour the terms of the employment contract and cannot unilaterally change them without agreement. This includes benefits such as a 13th cheque, if they form part of the contract.
Where a benefit is truly a “workplace practice” (a custom that developed over time without being written into the contract), employers may have more flexibility to change it. However, where the benefit is expressly contractual, any unilateral removal is likely to be a breach of contract and open to legal challenge.
The Avare Case reinforces these principles and serves as a strong warning to employers who attempt to re‑label contractual benefits as “practices” to avoid their obligations.
A contractual benefit is one that arises from an agreed term of the employment contract. Examples include:
Once a benefit is written into the contract, or clearly agreed between employer and employee, it becomes binding. The employer cannot unilaterally remove or change it without the employee’s consent, or without following a lawful variation process (for example, through consultation and agreement).
A workplace practice, by contrast, is a recurring conduct or custom that has arisen over time but is not expressly agreed in the contract. Examples might include:
Employers have more room to alter workplace practices, provided they do so fairly and lawfully. However, they may not simply “rebrand” a contractual right as a practice to escape their contractual duties.
In the Avacare matter, the employer had for some time paid its employees a 13th cheque. The dispute arose when the employer decided to:
The employer further:
A group of 214 employees, represented by their union, contested the decision. They argued that the 13th cheque was a contractual benefit, while the employer claimed it was merely a workplace practice that it was entitled to amend.
During the dispute resolution process, the employer conceded that the 13th cheque was indeed a contractual right. This concession was fatal to its case.
Given that the benefit was contractual, the Labour Court had little difficulty in finding that:
The court therefore ordered the employer to pay the unpaid 13th cheques to the affected employees.
The court took a dim view of the employer’s attempt to:
The court described this approach as coercive and criticised the discouragement of collective bargaining. It noted that, while the dispute was ongoing, 55 of the original 214 employees did not agree to give up their contractual right to a 13th cheque in exchange for a salary increase.
The court confirmed that the payment of a 13th cheque is not a statutory obligation in South African law. Employers are not compelled by legislation to offer such a benefit.
However, once an employer chooses to include a 13th cheque or similar bonus in the employment contract, it becomes a binding contractual obligation. The employer must then comply with it unless:
The case serves as a reminder that courts will look at the substance of the arrangement, not how the employer labels it. Mischaracterising a contractual obligation as a mere “practice” to avoid paying it will not be tolerated.
If an employer needs to amend or discontinue a benefit, it must:
Failure to follow these steps exposes the employer to breach‑of‑contract claims and potentially costly litigation.
The Avacare decision underscores a clear message: contractual obligations are not optional. A 13th cheque that forms part of an employment contract cannot simply be scrapped and replaced with a discretionary scheme without employees’ consent.
Employers should carefully review their contracts before altering benefits, ensure they distinguish between contractual rights and workplace practices, and follow proper procedures when change is necessary. Employees, in turn, should understand the terms of their contracts and seek advice if benefits are unilaterally withdrawn.
Does my employer have to pay a 13th cheque by law?
No. There is no automatic statutory right to a 13th cheque, but if your contract provides for it, the employer is contractually bound to pay it.
Can my employer unilaterally stop paying my 13th cheque?
If the 13th cheque is a contractual term, your employer cannot lawfully withdraw it without your consent or a proper process; doing so may amount to breach of contract.
What is the difference between a contractual benefit and a workplace practice?
A contractual benefit is written into the employment contract or clearly agreed, while a workplace practice is an informal custom that has developed over time without being contractually guaranteed.
What should employers do before changing a bonus or 13th cheque?
They should determine whether the benefit is contractual, consult with employees, obtain agreement to any variation, and avoid coercive tactics or mischaracterising the benefit as a mere practice.