Unfair Retrenchment

[Franni]

Yes, its my 1st post, but Ive been an avid reader and lurker for years, from the days of myADSL.

Im in quite a difficult spot, and can really use some advice, Ill keep it as short as possible.

• Been a loyal employee to company X for a few years.

• Earlier this year, company X unexpectedly closed, no warning what so ever.

• Try to communicate with managers – receive no instruction, so essentially hunting for another job.

• End of month receive retrenchment letter – no consultation, no notice period, no Jan salary, no severance.

Ive been in touch with the CCMA in regards to filling out the 7/11 form to get some form of severance and salary.

Company X are real scumbags. They will try every trick in the book not to pay me, as far as moral values and ethics go, there are none. In light of that info, Ive also consulted with www.labourlawservices.co.za. Essentially they are a contingency based law firm, so they take a (big) chunk of your settlement. Although I don’t mind to give them a slice of the cake, I don’t really trust them, after reading their HelloPeter page: http://hellopeter.com/labour-law-services/compliments-and-complaints


Question is: Do I just go CCMA route and hope for the best, or do I lawyer up?

Ive read through some other CCMA related threads: Can anyone that went through something similar share their 2c, and possibly recommend a solid contingency based lawyer?

Thanks guys

 

[Lucas Buck]

Go to the ccma and see a consultant first before you decide to start paying lawyer fees.

 

[Bernie]

If the company has just closed, there probably no money, either through embezzlement or just gone bankrupt. As right as you may be, and as bad as the company has acted, if there is no money the best you can hope for is to "know" you were in the right, but it still will not get you a payout. So getting a lawyer may just not be worth it, unless you can afford at least one consultation to see the way forward and to identify what is practically possible. Were you on good terms with your manager, maybe at least get a good reference from him/her to help in your job search. Good luck.

 

[Franni]

Go to the ccma and see a consultant first before you decide to start paying lawyer fees.

Ive already been to the CCMA, they were able to give me great fundamental info, but essentially just told me, please fill out the 7/11 form.

As I mention in my post above, Company X will probably try to avoid payment for as long as possible. Im concerned that they might even go as far as the labour court, and without legal assistance then, Ill be screwed.

 

[Franni]

If the company has just closed, there probably no money, either through embezzlement or just gone bankrupt. As right as you may be, and as bad as the company has acted, if there is no money the best you can hope for is to "know" you were in the right, but it still will not get you a payout. So getting a lawyer may just not be worth it, unless you can afford at least one consultation to see the way forward and to identify what is practically possible. Were you on good terms with your manager, maybe at least get a good reference from him/her to help in your job search. Good luck.

Ive since found out that the company is not liquidating, and is continuing with business, so although there might not be money now, there might be in the future.

 

[Drifter]

You have PM Franni.

 

[Jet-Fighter7700]

Ive since found out that the company is not liquidating, and is continuing with business, so although there might not be money now, there might be in the future.

So a real fly by night?
Ccma firstly, then labour consultant, and I'd even go as far as naming and shaming scumbags that do evil things like that.....

As for reference, if you can speak to your manager get that, otherwise try maybe get a colleague to help you...

 

[Zyraz]

Sadly , you will probably never see your last paycheck. I`m still waiting for mine from Eclipse Networks when it got liquidated.
My advice , get your UIF claim in ASAP so that you at least can have some sort of income while you look for something else.

 

[Franni]

So a real fly by night?
Ccma firstly, then labour consultant, and I'd even go as far as naming and shaming scumbags that do evil things like that.....

As for reference, if you can speak to your manager get that, otherwise try maybe get a colleague to help you...

I wouldn't say fly by night, the company has been around for quite some time, but just as things were going south they just ran away from responsibilities...

Ive been home for a few weeks, and Ive already managed to find something else. As I stand now, I just want what is due to me, Jan Salary, notice period payout, severance for years worked, leave payout etc.

 

[theratman]

Sorry to hear that OP, such a bad feeling. Take them to the CCMA, you definitely have a case. You don't need a lawyer at this stage so see what the CCMA has to say, they are very helpful. Also you have absolutely nothing to lose other than your time. Best case : You win your case and get the monies owned to you. Worst Case : The CCMA rules against you (unlikely from what you've posted) and you get nothing. The only thing you have to lose is your time.

 

[TEXTILE GUY]

So, my take on this .... I refer to the LRA.1995 as ammended ...

S189 deals with dismissals based on operational reasons.

The section is quite clear - S189
(1) d says that the employer must consult with you. (Failure to do so leads to S186, unfair dismissal, which is irrelevant for getting re-employed, but may assist in compensation)

(2) a (iv) speaks to mitigation of pain, which you have now.

(3) - its expected that the employer did all these things ...
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing the dismissals, and the reasons
for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in which they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take effect;
(f) the severance pay proposed;
(g) any assistance that the employer proposes to offer to the employees likely to be dismissed;
(h) the possibility of the future re-employment of the employees who are dismissed;
(i) the number of employees employed by the employer; and
(j) the number of employees that the employer has dismissed for reasons based on its operation
requirements in the preceding 12 months.
- failure to do so, making your case stronger for a settlement amount, considering S193 c, which deals with compensation for such unfair dismissal.

S195 pretty much says that the compensation is due over and above whats owed to you, and S194 says that the compensation (other than what you are owed) should be fair and equitable.

Whats owed to you is set in S196 a - An employer must pay an employee who dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, unless the employer has been exempted from the provisions of
this subsection.

S196 (6) is your right to approach the CCMA, but S196 (7) says, you must copy the ex employer. This is important, because failure to do so could jeopardise your settlement.

I hope this helps somewhat.

 

[janinki]

Ive already been to the CCMA, they were able to give me great fundamental info, but essentially just told me, please fill out the 7/11 form.

As I mention in my post above, Company X will probably try to avoid payment for as long as possible. Im concerned that they might even go as far as the labour court, and without legal assistance then, Ill be screwed.

Hey Franni

From an employer who has been taken to the CCMA before and doing A LOT OF RESEARCH ON BOTH SIDES, youhave to fill in the form for Reconciliation (where they demand the employer to be there. It's just you, the labour judge and the employer.), you then tell the judge your side of the story and give any proof you may have and state what you want out of this meeting. The employer then states their side of the story and you settle the argument then and there or enter arbitration.

Only in arbitration you will need a lawyer. PM me for a great one or if you need advise

 

[Franni]

So, my take on this .... I refer to the LRA.1995 as ammended ...

S189 deals with dismissals based on operational reasons.

The section is quite clear - S189
(1) d says that the employer must consult with you. (Failure to do so leads to S186, unfair dismissal, which is irrelevant for getting re-employed, but may assist in compensation)

(2) a (iv) speaks to mitigation of pain, which you have now.

(3) - its expected that the employer did all these things ...
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing the dismissals, and the reasons
for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in which they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take effect;
(f) the severance pay proposed;
(g) any assistance that the employer proposes to offer to the employees likely to be dismissed;
(h) the possibility of the future re-employment of the employees who are dismissed;
(i) the number of employees employed by the employer; and
(j) the number of employees that the employer has dismissed for reasons based on its operation
requirements in the preceding 12 months.
- failure to do so, making your case stronger for a settlement amount, considering S193 c, which deals with compensation for such unfair dismissal.

S195 pretty much says that the compensation is due over and above whats owed to you, and S194 says that the compensation (other than what you are owed) should be fair and equitable.

Whats owed to you is set in S196 a - An employer must pay an employee who dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, unless the employer has been exempted from the provisions of
this subsection.

S196 (6) is your right to approach the CCMA, but S196 (7) says, you must copy the ex employer. This is important, because failure to do so could jeopardise your settlement.

I hope this helps somewhat.

Thank you for your in depth response, I really appreciate your input.

 

[airborne]

Whatever you do don't do nothing. These scumbags probably haven't lost much themselves but are trying to use this opportunity to cleave off staff and other commitments scot-free.

Even if they plead poverty get an appropriate settlement or judgement amount etc on paper. Or else months/years later when the opportunity comes to collect you'll be kicking yourself. No one can run for ever, keep an eye open on their operations and the sheriff on retainer...

 

[airborne]

And good luck!

 

[Franni]

Right, slight update:

My CCMA hearing has been scheduled for next week. Company director has moved to another province, and to be honest I dont think anyone will even pitch for the hearing.

There are rumors that creditors are pushing for liquidation. As far as the company goes, they have no assets, so Im not really sure what difference the liquidation will make?

As I stand now, Ive managed to find another job, but I am under quite a bit of financial stress. Its going to take me 3-6 months to recover.

Even if I "win" my CCMA case, Im not really sure what the use is going to be, if there is no money to pay me, and no assets what so ever. How on earth can I make the owners of this company accountable for their actions? I cant seem to think that they can simply walk away from this without being responsible?

Is there anyway I can make a civil case against them, so I can attach their personal property?

 

[zippy]

Dont know about SA Law, but I am sure payroll debts have more rights than unsecured creditors. I think payroll debts come after the taxman and any secured debts.

 

[Beachless]

Dont know about SA Law, but I am sure payroll debts have more rights than unsecured creditors. I think payroll debts come after the taxman and any secured debts.

That sounds right from what I remember, hes unlikely to get anything if there are no assets. Best of luck OP at least get your CCMA ruling then you can decide from there.

 

[zippy]

That sounds right from what I remember, hes unlikely to get anything if there are no assets. Best of luck OP at least get your CCMA ruling then you can decide from there.

yes. 99% of employers in the dwang owe shed loads in tax anyway.

 

[Franni]

That sounds right from what I remember, hes unlikely to get anything if there are no assets. Best of luck OP at least get your CCMA ruling then you can decide from there.

Ill take it one step at a time, for now, going to the CCMA is step 1.

Ill update this tread after my hearing.