Forced to take leave when resigning

giovannidc said:
The reason they gave for shafting him is that they can't afford to pay his holiday pay and so according to their lawyer they are allowed to do this. Told him not to sign anything, but it seems like he doesn't want to unnecessary fight
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Reason is irrelevant.

They are breaching more than just the BCOE if they can't afford to pay his leave pay....
 
giovannidc said:
The reason they gave for shafting him is that they can't afford to pay his holiday pay and so according to their lawyer they are allowed to do this. Told him not to sign anything, but it seems like he doesn't want to unnecessary fight
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They should have a provision for leave, call it a little stash if you would:

"It is accepted accounting practice to record at the year end material provisions for leave pay based on the amount that would be payable to all employees were they not to take leave as at that date, but were instead to be paid out their leave entitlement in cash."
 
giovannidc said:
So a colleague of mine is resigning and has about a month of leave left. He was planning to work the remainder of his notice and then to use the holiday pay and take a few days to before starting at his new company. Today the company threw a curve ball and pretty much told him they not going to pay his holiday pay, but instead he must take his leave immediately. Its pretty messed up imho, and was wondering if that is even allowed and can he even fight it?
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Its illegal they can't force him to take his leave they have to pay him out - he can take them to CCMA
They can ask him to go on Garden leave - which means he is just basically stays at home for his notice period this does not come from his annual leave. - Normally happens with senior management or people privy to sensitive information
 
giovannidc said:
The reason they gave for shafting him is that they can't afford to pay his holiday pay and so according to their lawyer they are allowed to do this. Told him not to sign anything, but it seems like he doesn't want to unnecessary fight
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Sounds like they trying to bully him , and it's not an unnecessary or even difficult fight , they probably know he isn't the type to argue so taking advantage of him.
They can't afford pay due to him that's honestly not his problem (not to mention sounds like BS)

Really on his part he has the law in his side so he should just im not signing anything just say i'm calling the CCMA and should just call them now anyway.
He can be nice and tell them they need a new Lawyer who understands labour law.
 
Why is it referred to as "Garden Leave"?

Does it imply that you should stay at home and work in the garden?
 
giovannidc said:
The reason they gave for shafting him is that they can't afford to pay his holiday pay and so according to their lawyer they are allowed to do this. Told him not to sign anything, but it seems like he doesn't want to unnecessary fight
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What BS ... Its going to cost them the same. While on leave, he is paid. What is the difference? Pay him the due days is the same as paying him while on leave... smoke and mirrors...
 
SirFooK'nG said:
What BS ... Its going to cost them the same. While on leave, he is paid. What is the difference? Pay him the due days is the same as paying him while on leave... smoke and mirrors...
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No, it's not the same.
By law, they must pay his full salary for his notice month, and on top of that, pay out any leave he is due.
By forcing him to take leave, they reduce the leave payment due at the end of the contract.
 
Sinbad said:
No, it's not the same.
By law, they must pay his full salary for his notice month, and on top of that, pay out any leave he is due.
By forcing him to take leave, they reduce the leave payment due at the end of the contract.
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This, leave not used must be paid out - that's the reason a lot of companies generally have a leave provision in their financial statements (and why accountants moan at people to take their leave and not let it build up)
 
Sinbad said:
No, it's not the same.
By law, they must pay his full salary for his notice month, and on top of that, pay out any leave he is due.
By forcing him to take leave, they reduce the leave payment due at the end of the contract.
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I agree they have to pay him. I'm saying that forcing him to take leave (yes illegal) is going to cost them, they get zero work done at a cost which should have been his notice period. This is the cost I refer to for the company. The individual is getting screwed hell yes. I run a company, I would rather pay the leave due and have the employee there for the notice period for handover to a new employee... that justifies the cost easily from a company point of view. Hence why I say its a silly reasoning that they can't afford it...

But regardless, its the law and they can't force him to take leave in his notice period.
 
SirFooK'nG said:
What BS ... Its going to cost them the same. While on leave, he is paid. What is the difference? Pay him the due days is the same as paying him while on leave... smoke and mirrors...
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no not the same.
If he was on garden leave they will pay him out plus he is still at home.
if the situation was reversed and he was in negative leave they would charge him or make him work that back.
they are trying to shaft him on money due simple as that
 
SirFooK'nG said:
What BS ... Its going to cost them the same. While on leave, he is paid. What is the difference? Pay him the due days is the same as paying him while on leave... smoke and mirrors...
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Actually no, they would have to pay him for the time AND still pay out leave owing, they are trying to just pay him once.
 
Kosmik said:
Actually no, they would have to pay him for the time AND still pay out leave owing, they are trying to just pay him once.
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Ya, I'm not disputing that the employee is getting Shafted. I am disputing the claim from the Employer that they cant afford to pay him his leave due & notice period salary. From a business perspective, an employee not on duty is a loss. How can they justify that loss in terms of revenue when equating it back to the amount owed for leave due. I bet they cant. Narrow minded thinking and plain straight shady a.f.
 
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giovannidc said:
The reason they gave for shafting him is that they can't afford to pay his holiday pay and so according to their lawyer they are allowed to do this. Told him not to sign anything, but it seems like he doesn't want to unnecessary fight
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Worse excuse I've ever heard. Its not his problem that they can't afford to pay him which sounds like BS to me.
 
giovannidc said:
The reason they gave for shafting him is that they can't afford to pay his holiday pay and so according to their lawyer they are allowed to do this. Told him not to sign anything, but it seems like he doesn't want to unnecessary fight
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supersunbird said:
He must ask them to get in writing that they do not wish to comply with the Basic Conditions of Employment Act.
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The guy doesn't have to fight, just be firm and resolved, in life confrontation is where your power lies, amazing things happen if you stand up to the bullies.

They are coming in fighting hoping to save some bucks by steam rolling the guy, Sunbirds line is perfect, its not confrontational but it sends the correct message loud and clear.
 
airborne said:
The guy doesn't have to fight, just be firm and resolved, in life confrontation is where your power lies, amazing things happen if you stand up to the bullies.

They are coming in fighting hoping to save some bucks by steam rolling the guy, Sunbirds line is perfect, its not confrontational but it sends the correct message loud and clear.
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Actually he should followup and lay a grievance with 5 working day response pending escalation.
 
namzsteve said:
Yeah, I weighed some options after chatting to a lawyer friend of mine. they can keep it for all i care.
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WTF? :crylaugh: Your lawyer friend should go back to law school if after talking to him, you are willing to screw yourself over.
 
ToxicBunny said:
Even that is illegal... you would need to have an updated contract, or some proof that you've accepted the change in contract terms.
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Yeah I don't believe it's legal to override the BCEA - unless it's through sectoral determination. This kind of thing would have all sorts of implications such as forcing someone to accept a contract undermining their rights, or not get the job. Very open to abuse, which is why it's not permissible.
 
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