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Post Info TOPIC: Retrenchment based on position being deemed redundant and not required.... However...
Anonymous

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Retrenchment based on position being deemed redundant and not required.... However...
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Hi There,

I need to ask a question that has left me stumped. I'm certain that what has taken place over the past 6 months is a cause for concern.

Scenario:

A position is being held at the company that requires the skills of a technical writer. The employee has had to deal with a very harsh, rude and judgmental manager (whom I have had the same experience with) and about 6 months ago the manager was unhappy with the work performance of the employee in question and this is what followed...

The employee was called in for a HR meeting where he/she was given a salary decrease of R5000pm due to performance issues. The company never tried to address and fix the problem as the notice was issued and was requiring the signature during the same meeting, without offering the employee a short period of time to fully understand and then address any concerns about the impact on them professionally as well financially. The employee felt that the company was starting to look like for way to make life vey difficult in an attempt to push the employee into resigning instead of dismissing him/her unfairly.

3 months ago, the company then informed the employee that the position he/she was holding was no longer required by the company, and was deemed redundant, therefore the employee was issued with a retrenchment letter. They did allow time for the employee to try and secure new work but so far he/she has been unsuccessful, especially because he/she is in their early 50's now. The employees last day will be 30th October 2015.

I am under the impression that if a position is being removed, or deemed redundant, then any responsibilities pertaining to the position would also be removed/not required/redundant?

Is this assumption correct? If so, would it be against the labour law to retrench someone based on these reasons, only to find out that the responsibilities held by the position have been assigned to other internal staff as additional duties as of 30th October 2015?

The employee in question was given a R5000 decease in their salary, 6 months ago due to management deeming it to be performance based, along with making life very hard for them on a day to day basis by management that clearly wants to drive the employee into resigning so that the company doesn't have to unfairly dismiss the employee. The employee needed the money so still continued working until 3 months ago when he/she was told that they are being retrenched due to the company no longer needing the position and responsibilities held by the employee.

Yesterday I was part of a meeting including the employee in question, their manager, the company CEO, the HR Manager, Financial Manager and Company Project Co-Ordinator. The meeting was driven by the CEO and the employee needed to present a list of all their responsibilities to the CEO. The CEO then continued by drawing an action plan that involved the other internal employees in being assigned the responsibilities that made up the position that was deemed redundant. The other employees were not too thrilled when they were assigned more responsibilities, over and above their current responsibilities. Why are the duties of the position, in question, being assigned to other internal staff members when the company has based the retrenchment on the fact that the position is no longer required, or deemed redundant?

To me this sounds like clear cut case of Labour Laws being violated. The employee faces a very bleak future without a source of income and has been left feeling worthless, all because the company didn't have the patience to give the employee a fair chance to redeem themselves.

There is a lot of evidence available for this case, including key witnesses and colleagues that are willing to provide further evidence as anonymous parties.

Should the employee serve the company with a CCMA Notice? Is this a strong case or would he/she be wasting their time?

Thank You,

 

 



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Labour Protect

Date:
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Good day,

I would advise that the retrenched  employee consult with a labour law attorney to discuss if whether the retrenchment is procedurally fair. To this I draw his/her attention the correct procedure to be followed at http://www.labourprotect.co.za/Retrenchments.htm .

Furthermore, it is a component of dismissal for operational requirements to distribute the  work of a position that has been considered redundant amongst the other employees. This usually happens  when some is retrenched and the employer makes the determination that the position is redundant. Therefore I would recommend that all the other employees do the work that has been assigned to them. If the work becomes so difficult that it affects productivity, the employer at that point would usually intervene.

 

LP



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