Employee asking for retrenchment

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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If you work for me and you resign I have the right to tell you to go home. You will effectively still be employed. While you can then go for interviews whenever you have to inform me if you take up new employment. While I would likely still pay you until notice ends I would need to update my records that you are now elsewhere employed.

But at the same token you will have to stay away from my competitors for the notice period, with or without a restraint of trade as you officially still work for me until COB on the last notice day. You're just not in the office, so you can't gather client contacts or other info...
 
The ex-employee is being paid for the 4-week notice period. That was made clear in the resignation acceptance letter.

Thanks for all the info, especially tha SABC article - that's good to know.

My friend got a call from the CCMA this morning. He outlined his point of view. The ex-empoyee says the whatsapp resignation was declined in person the next day, which of course is not true.
 
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.
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Bolded part I think would be illegal, employees are entitled to leave pay, i think latest by the following pay cycle.
 
dazzazzad said:
The ex-employee is being paid for the 4-week notice period. That was made clear in the resignation acceptance letter.

Thanks for all the info, especially tha SABC article - that's good to know.

My friend got a call from the CCMA this morning. He outlined his point of view. The ex-empoyee says the whatsapp resignation was declined in person the next day, which of course is not true.
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A company has no right to "decline a resignation". It is a unilateral action by an employee.
 
ToxicBunny said:
A company has no right to "decline a resignation". It is a unilateral action by an employee.
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*ugh* getting hung up on this technicality, really?
We all know that if a company wants to fire you, or you want to leave, there is nothing that can be done other than a whole lot of misery to keep things as they are.
Declining a resignation is a company's way of saying "please don't leave yet, come talk to us to see if we can solve whats instigating you to leave"
 
Statement remains true though. A company cannot decline a resignation. It can persuade you to retract the resignation. That is for normal employment. Obviously in the event of a contract relationship where you agreed to work for the company for a specified period the rules are completely different and would be determined by the clauses dealing with termination of the contract.

This guys has nothing. He resigned in writing, company accepted, its done. Retrenchment is not an option. The only thing the CCMA could do is mess your mate around if the guy goes for a constructed dismissal case. So if conditions where made so poor he felt forced to resign. The CCMA could fine your friend for that up to several months salary.
 
DMNknight said:
*ugh* getting hung up on this technicality, really?
We all know that if a company wants to fire you, or you want to leave, there is nothing that can be done other than a whole lot of misery to keep things as they are.
Declining a resignation is a company's way of saying "please don't leave yet, come talk to us to see if we can solve whats instigating you to leave"
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It is not a technicality.. it is a legal fact.

If I submit my resignation, the company has NO say legally. Yes they can negotiate things and I can chose to listen or not.. but the choice is mine, not theirs.
 
There is no such thing as 'voluntary retrenchment'. There is however voluntary seperation, which mean the employer and employee agree seperation terms (not legislatively prescribed) whereas retrenchment has clear seperation cost, terms and consequences.
 
Kosmik said:
They can but it cannot count towards leave and they cannot force unpaid leave.
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Not saying without pay. They pay him on the normal cycle, just tell him not to come back to work.
 
Friend should be careful that Whatsapp message doesn't disappear.

Mine fall off the end if there are more than a certain number of messages.
 
Cius said:
Statement remains true though. A company cannot decline a resignation. It can persuade you to retract the resignation. That is for normal employment. Obviously in the event of a contract relationship where you agreed to work for the company for a specified period the rules are completely different and would be determined by the clauses dealing with termination of the contract.

This guys has nothing. He resigned in writing, company accepted, its done. Retrenchment is not an option. The only thing the CCMA could do is mess your mate around if the guy goes for a constructed dismissal case. So if conditions where made so poor he felt forced to resign. The CCMA could fine your friend for that up to several months salary.
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He showed me the CCMA form the ex-employee filled out. They ticked "dismissal" under "nature of dispute and then under "if it's an unfair dismissal, tick appropriate box" and they ticked "misconduct".

Dismissal? You resigned! And then after the resignation you also resigned again in a formal letter (only this time calling it "voluntary retrenchment") and apologized and asked for forgiveness "if I have done anything to hurt you".

There is zero chance my friend rejected her resignation the next day (even if that was a thing). The ex-employee said a resignation letter would be forthcoming so he was waiting for that and also trying to determine a course of action regarding the misconduct experienced in the weeks leading up to the resignation.

The ex-employees misconduct grievance is due to showing up at my friend's home on Monday (with the letter of voluntary retenchment) but he had been advised not to talk about it with her until an official meeting could be held the next day, so he told her he can't talk to her now and closed the door. (The ex-employee claims he slammed the door on her). At that point the ex-employee went home.

And then on Tuesday, the meeting to accept the resignation was at 4pm (that late because the ex-employee took the day off to seek psychiatric help at the hospital).

Given the misconduct and volatile behaviour, my friend instructed another employee not to let anyone into the office when he wasn't there. The ex-employee arrived 20 min early and when they were told they'd have to wait till the boss arrived they freaked out and left. Sending my friend a message about being treated like a dog and that she'd be forced to have the meeting through the bars on the front door of the office. When he arrived a few minutes later, he messaged the ex-employee and said of course the meeting will be inside, he's there now to discuss everything and come to a resolution, and asked if they were coming?

They didn't come back so he whatsapped and emailed the resignation acceptance letter.

Which obviously went down like a brick.
 
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dazzazzad said:
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.
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Seriously. And he doesn't want to get ugly. If someone attempts to steel from me I'll call the police and have them arrested and not fire them but accept their resignation so that they can't claim uif.
 
If it's a small business I wouldn't make a big issue out of it, give him the retrenchment and be done with. The last thing a struggling business needs is a huge drama that is time consuming and stressful. The result will be that it will take his focus away from his own best interests, which is a profitable business. Absolutely take the easiest way out IMO.
 
My friend just pointed out that in the CCMA document the ex-employee is not asking for retrenchment any more (think that shoe dropped) they are asking for reinstatement. So that explains that "dismissal".
 
purpleheart said:
If it's a small business I wouldn't make a big issue out of it, give him the retrenchment and be done with. The last thing a struggling business needs is a huge drama that is time consuming and stressful. The result will be that it will take his focus away from his own best interests, which is a profitable business. Absolutely take the easiest way out IMO.
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see my point above, if you are retrenched they legally can't fill your position, not to mention you need to prove financial losses otherwise you can end up in labour court

dazzazzad said:
My friend just pointed out that in the CCMA document the ex-employee is not asking for retrenchment any more (think that shoe dropped) they are asking for reinstatement. So that explains that "dismissal".
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honestly not employee you want around
 
Employer can either FIRE or Retrench. And employee can either RESIGN or get retrenched.

Retrenchment means the employer is is financial difficulties and letting go of staff. UIF and everything everyone said above comes into play.

In this case the employee resigned. Employer accepted it. He then only needs to pay out the remaining leave days available after the employer has worked his notice period.

That’s that.
 
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