Labor Dispute Settlement

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KeeganW

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Good Day everyone

I'm not sure if this is the right "business" forum for labor issues but I am just trying to get some information on the subject.

I have an employee who I needed to dismiss for various offences, we ended up in the CCMA and we parted ways with a monetary settlement because it was becoming very drawn out, the settlement agreement as per the CCMA notes that "the respondent (me) needs to amend its records to read "retrenchment" solely for the purpose of references and does not create any expectation to further monies pesuant to a defacto retrenchment"

I signed this document under instruction from my representation, but the employee's lawyer is requesting I amend his certificate of service to show retrenchment and a favorable reference letter.

I am inclined to advise that I am happy to write out a reference letter on company letterhead stating that the employee was retrenched. I think it is unwise to sign any legally binding document (such as a certificate of service) stating the employee was retrenched when he was dismissed as per our records. Surely the basic conditions of employment act trumps whatever has been written in a settlement agreement by a CCMA commissioner hence why I would prefer to submit a non binding document.

The settlement wording only mentions the respondent needs to amend its "records", surely this is so vague that I can assume it refers to a reference letter only? Likewise they go on to mention solely for the purpose of references.
 
Create a fake letterhead, then create a subtly sarcastic reference letter, then print it out and sign it in cursive as "Mr Mickey Mouse" ...

Then enjoy a good night's sleep.
 
KeeganW said:
Good Day everyone

I'm not sure if this is the right "business" forum for labor issues but I am just trying to get some information on the subject.

I have an employee who I needed to dismiss for various offences, we ended up in the CCMA and we parted ways with a monetary settlement because it was becoming very drawn out, the settlement agreement as per the CCMA notes that "the respondent (me) needs to amend its records to read "retrenchment" solely for the purpose of references and does not create any expectation to further monies pesuant to a defacto retrenchment"

I signed this document under instruction from my representation, but the employee's lawyer is requesting I amend his certificate of service to show retrenchment and a favorable reference letter.

I am inclined to advise that I am happy to write out a reference letter on company letterhead stating that the employee was retrenched. I think it is unwise to sign any legally binding document (such as a certificate of service) stating the employee was retrenched when he was dismissed as per our records. Surely the basic conditions of employment act trumps whatever has been written in a settlement agreement by a CCMA commissioner hence why I would prefer to submit a non binding document.

The settlement wording only mentions the respondent needs to amend its "records", surely this is so vague that I can assume it refers to a reference letter only? Likewise they go on to mention solely for the purpose of references.
Click to expand...

Just make a reference that says exactly what happened, you fired them and then after drawn out CCMA arbitration you decided settle and retrench the employee.
 
KeeganW said:
Good Day everyone

I'm not sure if this is the right "business" forum for labor issues but I am just trying to get some information on the subject.

I have an employee who I needed to dismiss for various offences, we ended up in the CCMA and we parted ways with a monetary settlement because it was becoming very drawn out, the settlement agreement as per the CCMA notes that "the respondent (me) needs to amend its records to read "retrenchment" solely for the purpose of references and does not create any expectation to further monies pesuant to a defacto retrenchment"

I signed this document under instruction from my representation, but the employee's lawyer is requesting I amend his certificate of service to show retrenchment and a favorable reference letter.

I am inclined to advise that I am happy to write out a reference letter on company letterhead stating that the employee was retrenched. I think it is unwise to sign any legally binding document (such as a certificate of service) stating the employee was retrenched when he was dismissed as per our records. Surely the basic conditions of employment act trumps whatever has been written in a settlement agreement by a CCMA commissioner hence why I would prefer to submit a non binding document.

The settlement wording only mentions the respondent needs to amend its "records", surely this is so vague that I can assume it refers to a reference letter only? Likewise they go on to mention solely for the purpose of references.
Click to expand...
BULLSHIT! That is fraud, plain and simple.

Retrenchment <-> Dismissal - and the (Labour) Law treats each differently.

ETA:
Nerfherder said:
Just make a reference that says exactly what happened, you fired them and then after drawn out CCMA arbitration you decided settle and retrench the employee.
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Nonsense. That is committing fraud.

One cannot dismiss AND retrench an employee. It is one OR the other.
 
I hereby certify that xyz worked at abc from such-and-such a date until such-and-such a date. His duties were so-and-so.

I wish him well in his future career.

(last line might not be strictly true).
 
Nerfherder said:
Its not. Its stating what happened, the employee was dismissed, then after arbitration it became a retrenchment. Its 100% honest.

You should never lie on a reference.
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You do realise that:
When the word "retrenchment" is used the employer would be bound by law to pay the employee compensation for his service;
And retrenchment is only applicable in certain circumstances;
And the employer may not fill that position again.
 
Supervan II said:
You do realise that:
When the word "retrenchment" is used the employer would be bound by law to pay the employee compensation for his service;
And retrenchment is only applicable in certain circumstances;
And the employer may not fill that position again.
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Ug... just read the first post again please.


as per the CCMA notes that "the respondent (me) needs to amend its records to read "retrenchment" solely for the purpose of references and does not create any expectation to further monies pesuant to a defacto retrenchment"
Click to expand...
 
Someone at CCMA should get fired. That makes no sense. Also your representation should get fired as well (even though they love your money).

It sounds also more like you can't make up your mind. If you parted with monetary settlement, then you retrenched. You want your bread buttered on both sides.

This is a good situation showing that legal presentation (assuming it wasn't your mom) is not always the best for you.

P.S. I am not a legal expert, speak to a lawyer or Labour broker.
 
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Supervan II said:
You do realise that:
When the word "retrenchment" is used the employer would be bound by law to pay the employee compensation for his service;
And retrenchment is only applicable in certain circumstances;
And the employer may not fill that position again.
Click to expand...
CCMA is boss pretty much. So retrenchment most likely was the amicable solution.
 
To simply fire someone is no easy feat in SA. You need to give warnings, then have an independent hearing, and then someone neutral (usually hired in), has to make the decision. From there on the dismissed employee can approach the CCMA, and they will have a hearing to decide if it was fair or not. If it wasnt fair, most likely you would have to hire the person back and they would have to go through a management process to get them upto the level required or so, or else you can decide upon retrenching person, etc.

Now the reason why the retrenchment would be COMPANY Initiated etc, is so that they can qualify for UIF. If it says they chose it, they cant.

Honestly I agree with the letter. This person was in service at us from this period to that period doing the job of whatever. Very basic. And be happy that they left.

Yes you may have to pay them retrenchment pay, but its far less of a headache if you really want to get rid of someone.

I dealt with someone that got fired a while ago, who's manager simply didnt like her. So the manager concocted this story that she wasnt performing etc. As such the company wants to cancel the contract. We took it to the CCMA and her dismissal was overruled, and the company decided to retrench her. Why was it over-ruled? She wont the monthly prize for best performing staff member, her stats was far above everyone else, and her quality was top of the team. Her manager even sent out a email a month before to congratulate her and what an asset she was to the company. And then simply decided she didnt like her anymore, and she needed to be fired. We found out why that also. She had a family and choose to go home after work to spend time with her family rather than hang out having pizza and beers at the office and dance parties till 11pm at night.

So yes the CCMA makes the final decision, sometimes there are more to the stories, and the easiest way out is simply to retrench them. Its far less a headache. A good company will simply recoup the costs.
 
Bad advice by your lawyer and even worse here.

Give a neutral certificate of service and reference letter NOT stating how or why employment was terminated as Maumau stated above. Upon someone enquiring as reference, say your policy is not to dislose confidential informateion beyond what is in the certificate of service (employer speak for 'he was dismissed).
 
Pax said:
Bad advice by your lawyer and even worse here.

Give a neutral certificate of service and reference letter NOT stating how or why employment was terminated as Maumau stated above. Upon someone enquiring as reference, say your policy is not to dislose confidential informateion beyond what is in the certificate of service (employer speak for 'he was dismissed).
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Thanks for the info, are you sure that it is not a requirement to advise on the certificate of service why the employee's contract ended?
 
Corelli said:
CCMA is boss pretty much. So retrenchment most likely was the amicable solution.
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It is not a retrenchment, in the settlement (which was a dispute on unfair dismissal) it is only stated that we will show retrenchment "solely for the purpose of references", that is why I don't think I will amend any legally binding documents to show retrenchment.
 
KeeganW said:
Thanks for the info, are you sure that it is not a requirement to advise on the certificate of service why the employee's contract ended?
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Yes, no such requirement. I make a living out of this. The only place it must be indicated is on the UI19. The best option your lawyer should have settled for was amendment to indicate 'contract ended', code 5 on the UI19, as this could also mean 'through dismissal', being vague, not retrenchment. These type of setllements are common.
 
KeeganW said:
It is not a retrenchment, in the settlement (which was a dispute on unfair dismissal) it is only stated that we will show retrenchment "solely for the purpose of references", that is why I don't think I will amend any legally binding documents to show retrenchment.
Click to expand...
If you agreed to a settlement it must surely mean you acceded that the dismissal was unfair? You don't pay off a person you rightly fired. Sounds like you agreed to a mutual separation with a settlement payment.
 
R13... said:
If you agreed to a settlement it must surely mean you acceded that the dismissal was unfair? You don't pay off a person you rightly fired. Sounds like you agreed to a mutual separation with a settlement payment.
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No, the settlement is a 'no fault' one. No one accedes to be wrong. It is a business decision taken by the employer to rather settle than spend the time and effort it takes to defend the case. Unfortunately the CCMA thereby created an opportunity for ex employees to get another couple bucks from the employer, and therein lies its greatest failure, that the employee runs no risk and has nothing to lose, only gain some extra money.
 
There is no requirement by law to give a positive reference letter. Unless the outcomes of the CCMA stated a positive reference letter is required, then only the basic requirement need be met which is basically what maumau said.

As per legislation:
42. On termination of employment an employee is entitled to a certificate of service
stating—
(a) the employee’s full name:
(b) the name and address of the employer:
(c) a description of any council or sectoral employment standard by which the employer’s business is covered;
(d) the date of commencement and date of termination of employment;
(e) the title of the job or a brief description of the work for which the employee was employed at date of termination:
(~) the remuneration at date of termination: and
(q) if the employee so requests. the reason for termination of employment.

KeeganW said:
I think it is unwise to sign any legally binding document (such as a certificate of service) stating the employee was retrenched when he was dismissed as per our records.
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Essentially the outcome of the CCMA was that the employee was never dismissed but retrenched. This is why you ended up at the CCMA because the dismissal was likely not procedurally fair. In order to uphold the dismissal on any records, you would have had to go through the entire CCMA process and a ruling made in your favour.

TL;DR, both yourself and the employee agreed they were retrenched and not dismissed, therefore even your HR records, and UIF form, must note retrenchment.
 
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You agreed to the CCMA terms which clearly stated the "retrenchement" clause
If you now want to ammend that clause you are going to go back into legal action with the CCMA, this time it will hurt.

Why are you trying to drag this out? Both parties have agreed to the terms set out by the CCMA, now you are trying to renag on them?

Just follow to a T the terms and conditions that the CCMA has set out, both parties agreed to this, nothing more nothing less.
 
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