Encashment of unutilised Annual Leave;. The Claimant told us if the Company is paying him Annual Incentive Payment (“AIP”), he will accept the usual mutual termination offer. But if the Company is not paying him AIP, he would like to have 4-6 months’ salary as ex gratia payment. At that material time, none of us can be certain whether AIP will be paid. This is mainly due to an incident which occurred on 25 January 2019. One of the mining dams of our Company in Brazil collapsed and the incident would have a big impact on the finances of the Company. This is known to all employees of the Company including the Claimant. I therefore told the Claimant that we cannot offer the AIP as no announcement has been made by the Company on whether AIP would be paid or not. However, if the Company decides to pay AIP, all employees who were in service during the material time would be entitled to receive the AIP. This is regardless of whether the employee has left the employment of the Company subsequent to the entitlement period. In this case, the entitlement period is year 2018. This means that even if the Claimant were to go through domestic inquiry and is found guilty, he would still be entitled to the AIP if the Company decides to pay AIP. In other words, the payment of the AIP is an irrelevant consideration. The Claimant understood the circumstances. It can be seen that for this reason, the AIP was not included in the mutual termination agreement signed by the Claimant. Nevertheless, the AIP was still paid to the Claimant subsequently when the Company has decided to pay AIP to all employees who were in service in year 2018. I refer to the Mutual Separation Agreement at pages 43-50 of the Company’s Bundle of Documents (“CBD”) and Exhibit CL-9 of the Statement of Case. Be that as it may, I told the Claimant that I will raise the C laimant’s request for 4-5 months ex gratia payment to the management but there is no guarantee that the management will agree. I also told the Claimant that he is to consider the usual
