Employee asking for retrenchment

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dazzazzad

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A friend of mine has a small business and has never had to retrench anyone.

A longtime employee started making comments about being retrenched (with respect to the company facing financial difficulties). The comment was ignored. The employee then did several things that breach the trust of their employer - my friend was deliberating how to address this.

Then the employee sends a resignation message via Whatsapp. My friend did not respond to it, planning to decide on the weekend whether to accept or give two official warnings (for recent discretions, including two that are very serious and probably termination worthy) and hope that puts a stop to the bad behaviour. In the end he decided to accept the resignation.

On the Monday after the weekend he was going to present the resignation acceptance letter, but received a letter from the employee asking for voluntary retrenchment.

My friend sent the initial resignation acceptance letter, just modifying it to include mention of the voluntary retrenchment proposal. Needless to say, the employee is not pleased at all. As in, CCMA threat.

It was my understanding that an employee can't ask for retrenchment. That surely defeats the purpose. It's like someone asking their bf/gf to break up with them...and then give them a car.

I have next to no experience though and neither does my friend. Am I missing something here?
 
It does completely defeat the purpose of retrenchment.

You resign or you get retrenched.

If he has a resignation letter, it shouldn’t be much trouble at CCMA.
 
dazzazzad said:
As in, CCMA threat.
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CCMA threat = no more nice guy.

Tell him to go buy a Idiots guide to CCMA from CNA, read the fkin thing overnight. Document the hell out of everything in as much detail as possible.

The combination of breach of trust & CCMA threats puts this squarely into a hostile situation so gear up for battle.

It was my understanding that an employee can't ask for retrenchment.
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Of course they can. They can ask for a ferrari & a unicorn if they like. Doesn't mean they'll get it. A lot of retrenchments are exactly that - both parties agreeing to part ways via retrenchment terms.

It's a non-issue here though - the employee has legally resigned. End of story & now you just need to cover your bases for the seemingly inevitable CCMA blowback.
 
If you have the right insurance on credit cards and debt, you can write them off, in the event of an retrenchment. Even get a few months free installments on your house, car, etc. Probably what he was aiming for and if he was, that's fraud.
But the ex-employee resigned and wasn't in a position to ask for a retrenchment letter. Nothing the ex-employee can do.

Wonder if your friend can do something against this alleged "fraudster". Probably can't proof it....
 
beans100 said:
If you have the right insurance on credit cards and debt, you can write them off, in the event of an retrenchment. Even get a few months free installments on your house, car, etc. Probably what he was aiming for and if he was, that's fraud.
But the ex-employee resigned and wasn't in a position to ask for a retrenchment letter. Nothing the ex-employee can do.

Wonder if your friend can do something against this alleged "fraudster". Probably can't proof it....
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He didn't want it to get ugly. But he has proof (the word of another employee) of the ex-employee (who is the accountant) sharing confidential financial info with other staff in a meeting. And screenshot proof of the ex-employee loading a retrenchment payment hidden into the salary payments for their sibling, who is also resigning (and also not being retrenched!) without my friend's approval or knowledge.

Luckily he approves loaded payments and spotted the irregular monthly salary total.

Semi-related question, if an employee is leaving and walking into another job (or perhaps their own business) can there be retrenchment?
 
Retrenchment can claim uif and must pay for time worked at company. Resign no need to pay anything extra. Question could you pay him out rest of salary and ask him to leave?
 
thehuman said:
Retrenchment can claim uif and must pay for time worked at company. Resign no need to pay anything extra. Question could you pay him out rest of salary and ask him to leave?
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I believe after he accepted the resignation my friend told the employee they would have a 4 week paid notice period, during which they can stay at home unless there's an express request to come into work. And they would be paid their holiday pay at the end of the year.

He doesn't want to pay the employee out, particularly after a big bonus payment at the start of the year and the recent distriss caused by their actions over the past month.

They offered on their own behalf to resign and not accept retrenchment money (despite my friend never mentioning retrenchment) so he decided to accept it and be done with it all. The ex-employee is upset because the resignation wasn't accepted immediately and it wasn't signed (it was a Whatsapp message) and a few days later they had changed their mind to now want voluntary retrenchment.
 
From what I understand about retrenchment is that the owner cannot appointed a new person for the position in x amount of time. So he will be screwing himself over
 
The guy resigned. Let him go on that.
That way the guy gets:(minus taxes) pay, over-time if any due, and pay for unused leave.
No first option if the position opens in 6months or less. No pay-out package. No UIF claims as he resigned and was not fired.
 
Not sure if this helps but an SABC employee sent a resignation via SMS a few years ago, changed their mind, and withdrew. The SABC decided to accept his original resignation anyway and the case ended up in court. The court noted that the employer does not have to accept a resignation put forward by an employee to be effective.

You can read up more on this at: http://www.esselaar.co.za/legal-articles/can-you-resign-sms
 
He resigned, tell him to go and get bent.....

Keep the Whatsapp from him when it gets to the CCMA...

Stop entertaining anything else from the cretin...
 
You can only "apply" for voluntary retrenchment if the company is running a retrenchment drive.

If your friend is not running a retrenchment drive, the employee can't apply for voluntary retrenchment...

Accept the resignation, and cut the useless/dead weight.

The employee probably has a policy that covers his debts if he's retrenched so it gives him a couple of months to find a new job. Your friend "retrenching" him with no retrenchment exercise could be fraud if he does do that and your friend could be in a world of pain.
 
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You cannot choose retrenchment, Voluntary retrenchment has to be offered by the company, to any one wishing to take it. - before they start regular retrenchment vetting.
Remember if it was retrenchment you cannot hire someone else to do the job, of course your friend needs to hire someone elses then has a case against your friend.
As others have said he resigned accept this resignation and keep proof of it - the other fraud stuff really doesn't matter - just make sure to lock him out of any access he may have.
Let him serve his remaining weeks at home and pay him at the end of the month, he can go look for another job.
Keep every scrap of correspondence no matter how insignificant it may be when he inevitably goes to the CCMA
 
You also cannot take leave during a notice period so be careful about that 4 week stay at home comment. Regarding payout, if a person resigns, you are mandated to pay them their leave, not something a company can quibble about. Certain deductions are allowed on that pay but must be clearly documented and substantiated.
 
Kosmik said:
You also cannot take leave during a notice period so be careful about that 4 week stay at home comment. Regarding payout, if a person resigns, you are mandated to pay them their leave, not something a company can quibble about. Certain deductions are allowed on that pay but must be clearly documented and substantiated.
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The company can certainly tell him / her not to come into the office. In this situation I would.
 
There are also different tax consequences for pension/provident fund payouts for retrenchment vs resignation.

The dude resigned - don't go "retrenchment" route as it could be viewed as fraud.
 
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