Claim For Acting Appointment Money And Quantum Meruit Principle

by Golekanye G. Rabasha.

Jan 17, 2023

Introduction and factual situation

Suppose that you are employed by company XYZ (Pty) Ltd at any post, e.g., as a Mechanic. You and 3 others are supervised by a supervisor, e.g., a Workshop Manager. Your supervisor is to be and indeed is absent from work for 4 months on training. The General Manager (the GM) recommends that you act as Supervisor during your boss’s absence but this recommendation is not acted upon and or approved by the Board of Directors. 

But you start acting and do so for the 4 months. You do all that your supervisor would do. You would be “punching above your weight” which should include “shouting out” instructions.  But when you expect to be paid acting money (acting allowance), the difference between your normal pay and your supervisor’s pay four times, you are not paid. The GM politely says that the Board refused saying that you do/did not have the Supervisor’s qualifications. The question is, is it doom and gloom for you, will you never be compensated?

The answer is that you may not/ are not doomed. You may ultimately seek to be paid through either the Industrial Court or the High Court. That is, assuming you are not successful before conciliation at Labour offices if you take the Industrial Court route.

Quantum Meruit and Decisions

You can claim on the basis and the Court may order that you be paid your acting money, on the basis of the principle encapsulated by the maxim (or saying) quantum meruit. Literally, quantum meruit means “as much as s/he deserves”. The principle says that if one has rendered services, although there was no formal contract, he has to be compensated for such performance. This principle is the functional equivalent of the principle of unjust enrichment. Unjust enrichment says that no one shall be unjustly enriched, that is, without compensating the one who has improved his property.

Both the High Court and the Industrial Court have previously in similar cases ordered an employer to pay an acting allowance. For instance, in the case of AB v Lobatse Town Council, the High Court ordered the payment. Here the recommended acting was not approved by the approving authority, Council Secretary, as the employee did not hold the required educational qualifications. The learned Judge in deciding for the claimant said that the order to pay was justifiable under the quantum meruit principle.

In the case of CBD and 9 Others v Permanent Secretary -Ministry of Health and Others, the Industrial Court held that a group of nurses who had acted as heads of maternity wards for over a year should be paid acting allowances. Schemes of service required that qualified mid-wives be heads. But in the absence of midwives, the Applicant nurses who were not qualified midwives were made to act as heads. But all the elaborate recommendation/approval processes that are s stipulated in the General Orders, that would have entitled the applicants to be paid acting allowances were not followed. The learned judge here did not expressly invoke quantum meruit, but on similar reasoning decided for the nurses. He said that “[b]y performing these [headship] duties the [nurses] earned the right to be remunerated at the [headship scale] ….”

Even if the formalities that have to be followed for one to act in a higher position and to be entitled to be paid what is in most work situations called acting allowance are not followed, you may not be doomed. Your supervisors may on their own on the principle of quantum meruit compensate you. Failing that, you may successfully claim for acting money at the Labour offices; at the Industrial Court; or at the High Court.

If you desire clarification on the above, please do not hesitate to contact us at our addresses and or numbers.

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