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South African Labour Law Made Easy

A Guide and Reference for the Employer and Management

DISMISSALS AND OTHER FORMS OF TERMINATION OF EMPLOYMENT

INDEX Introduction Dismissal Meaning of dismissal Automatically unfair dismissal Rights of employees Unfair dismissals Dismissal for misconduct Substantive fairness Procedural fairness Employees appointed on probation Incapacity Poor work performance Fair procedure Unsuitability or incompatibility Ill Health or injury

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Temporary illness or injury Permanent incapacity Dismissal Based on Operational Requirements Retrenchment by employers with less than 50 employees Parties to be consulted Consultation process Information to be disclosed in writing Representation Final decision Retrenchment by employers with more than 50 employees Facilitator Strike or lockout Replacement labour Failure to comply with a fair procedure Dispute referred to the labour court Date of dismissal Termination requirements Notice periods Fixed term contracts of employment Payments on termination of employment Certificate of service Pro forma Letter of Suspension Pro forma Notice to Attend a Disciplinary Hearing Pro forma Notice of Intention to Retrench Pro forma Notice of Retrenchment Certificate of Service

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INTRODUCTION

The service contract between employer and employee can be terminated for a number of reasons. If dismissal is the reason for termination the employer can only justify it on three grounds, namely dismissal for misconduct, incapacity or for operational requirements of the employer. Dismissal on any of the accepted grounds must be preceded by a fair procedure (which differs for each type of dismissal). If an employer fails to comply with substantive and procedural fairness in dismissing an employee, the employee will have a range of remedies such as claims for compensation, re-employment or re-instatement.

A number of requirements have to be met when a contract of employment is terminated. Employers must comply with notice periods, make certain payments on termination and issue a certificate of service to the employee whose services have been terminated.

DISMISSAL Meaning of Dismissal

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The following actions can constitute a dismissal:

an employer terminates a contract of employment with or without notice; an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or fail to renew it; an employer refused to allow an employee to resume work after she took maternity leave; an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or an employee terminates a contract of employment with or

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Section 186 LRA 66 of 1995

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without notice because the employer makes continued employment intolerable for the employee (constructive dismissal); an employee terminated a contract of employment with or without notice because the new employer, after a transfer, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.2

Automatically Unfair Dismissal

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A dismissal will be regarded as automatically unfair if:

the employer dismisses an employee because of his/her participation or support protected strike or protest action.

This means that an employer will not be able to show fairness of such a dismissal, since it will be seen as automatically unfair.

the employer compel the employee to accept a demand in respect of any matter of mutual interest between the employer and employee; the employee refused, to do any work normally done by an employee who at the time was taking part in a protected strike or was locked out by the employer, unless that work is necessary to prevent an actual danger to life, personal safety or health;

that the employee took action, or indicated an intention to take action, against the employer by exercising any right conferred by the LRA or participating in any proceedings in terms of the LRA;

the employee is dismissed due to her pregnancy, intended

2 3

Section 197 and 197A of the LRA 66 of 1995 Section 187 LRA 66 of 1995

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pregnancy, or any reason related to her pregnancy;

the employer dismisses an employee on any discriminatory ground. It will not be seen to be discriminatory if the dismissal is based on an inherent requirement of the job or the employee has reached agreed retirement age.

the reason for the dismissal is due to a transfer, or a reason related to a transfer4

The employee is dismissed for making a protected disclosure.5

An employer dismisses an employee for exercising his/her right to freedom of association or becoming a member of a workplace forum.6

Rights of Employees

Every employee has the right to fair labour practices7 Every employee has the right not to be unfairly dismissed8

Unfair dismissals9

A dismissal will be unfair if the employer is unable to show that the reason for dismissal is a fair reason [substantive fairness] related to the employee's

(excluding automatically unfair

4 5 6 7 8 9

conduct; capacity; or it is based on the employer's operational requirements;

Section Section Section Section Section Section

197 and 197A of the LRA 66 of 1995 42 of Protected Disclosures Act 12 of 2002 5 of the LRA 66 of 1995 23(1) Constitution of SA 108 of 1996 185 LRA 66 of 1995 188 of the LRA 66 of 1995

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dismissalsbecause the employer cannot prove fairness of such a dismissal)

When dismissing an employee the employer must take into account the Code of Good Practice : Dismissal10 This Code is not intended as a substitute for disciplinary codes and procedures where these are the subject of collective agreements, or the outcome of joint decisionmaking by an employer and a workplace forum. that a fair procedure [procedural fairness] was followed. and

Dismissal for Misconduct

Dismissal should be reserved for cases of serious misconduct or repeated offences.

Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment

Disciplinary action short of dismissal is discussed in chapter 4 and only dismissal as the extreme measure of discipline will be explained in this chapter.

relationship intolerable.

Examples of serious misconduct, are:

Gross dishonesty; or Wilful damage to the property of the employer; or Wilful endangering of the safety of others, Physical assault on the employer, a fellow employee, clients or customers; Gross insubordination. Discrimination

10

Schedule 8 of LRA 66 of 1995

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Substantive Fairness

To ensure substantive fairness the following questions must be answered:

did the employee contravene a rule or standard regulating conduct in, or of relevance to, the workplace? [Are the rules/standards included in the company's code of conduct, policies or employment contracts?] if a rule or standard was contravened, whether or notthe rule was a valid or reasonable rule or standard? the employee was aware, or could reasonably be expected to have been aware, of the rule or standard? [What steps were taken by the employer to make employees aware of the rules/standards?] the rule or standard has been consistently applied by the employer? [Are employees who committed similar offences in similar circumstances being treated equally?] dismissal was an appropriate sanction for the contravention of the rule or standard.[Does the penalty fit the offence?]

Procedural fairness

When a breach of the disciplinary code takes place or an offence allegedly took place the employer should take the following steps:

The employer should conduct an investigation to determine whether there are grounds for dismissal.

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During the investigation the employer may suspend the employee on full pay by notifying the employee of the reasons for his/her suspension in writing. [See Form K1]

If the investigation is completed and there are sufficient grounds for conducting a disciplinary hearing the employee must be informed in writing in a form and language that the employee can understand of the allegations against him/her and of the time, date and venue where the hearing will take place and of the rights of the accused employee. [See Form K2] The employee should be given reasonable time [at least 48 hours depending on the circumstances] to prepare him/herself against the allegations made.

An objective and unbiased chairperson must be appointed [may be anyone in-house or externally ­ depending on the circumstances of the case].

The chairperson should keep minutes of the proceedings

During the hearing the chairperson must inform the employee of his/her rights.

The employee is entitled to the assistance of a trade union representative or a fellow-employee.

The employee must be granted the opportunity to state a case in response to the allegations. He/she will have

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the right to testify, call witnesses and cross-examine the employer and witnesses.

The employee has the right to be informed in writing of the decision and reasons for the decision taken by the chairperson.

The employee must also be informed that he/she has the right to refer the matter to a council with jurisdiction or to the CCMA.

Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.

Employers should keep records for each employee specifying the nature of any disciplinary transgressions, the actions taken by the employer and the reasons for the actions.

Dismissal of Employees Appointed on Probation

An employer may require a newly-appointed employee to serve a probation period before confirming the appointment.

The employer must use the probation period to evaluate the employee's performance. It should not be used to replace employees who completed their probation periods with new employees. This will not be consistent with the purpose of probation.

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No specific period of probation is prescribed but it should be determined in advance and be of reasonable duration. Factors to consider when deciding on a probation period may include The nature of the job The time it takes to determine suitability for permanent employment. During the probationary period, the employer should give an employee reasonable evaluation, instruction, training, guidance or counselling in order to allow the employee to render a satisfactory service.

If the employee's performance is below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards.

If the employer believes that the employee is incompetent, the employer should advise the employee of the respects in which the employee is not competent.

The employer may either extend the probationary period or dismiss the employee provided that the employee is given the opportunity to be assisted by a trade union representative or a fellow-employee and to make representation on the matter.

The employee must consider and respond to the representation made by the employee on probation.

If the employer decides to dismiss the employee or to extend the probationary period, the employer should

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advise the employee of his or her rights to refer the matter to a council having jurisdiction, or to the Commission.

Dismissal for reason of poor work performance during or on expiry of the probationary period may be less compelling than would be the case in dismissals effected after the completion of the probationary period. Dismissal for Incapacity Poor work performance or Illness or injury Incapacity may relate to either:

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Dismissal for Incapacity - Poor Work Performance

To determine a fair dismissal for poor work performance the following questions should be answered.

Did the employee fail to meet a performance standard? [Does the company have a performance appraisal system?]

If the employee did not meet a required performance standard:

Whether the employee was aware, or could reasonably be expected to have been aware, of the required performance standard? [Did the company enter into a performance agreement with the employee in meeting certain targets or standards?]

Was the employee given a fair opportunity to meet the required performance standard [in terms of time, resources, training etc?]

Is dismissal an appropriate sanction for not meeting the required performance standard? [can non performance be addressed by any other measure?]

Fair Procedure

After probation, an employee should not be dismissed for unsatisfactory performance unless the employer has given the employee appropriate evaluation, instruction, training, guidance or counselling; and a reasonable period of time for improvement and the employee continues to perform unsatisfactorily.

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The procedure leading to dismissal should :

include an investigation to establish the reasons for the unsatisfactory performance. An incapacity hearing should be held and the employee be given the opportunity to state his/her case and to be assisted by a trade union representative or a fellow employee. the employer should consider other ways, short of dismissal, to remedy the matter.

Unsuitability or Incompatibility

'Unsuitability' means an employee is unsuited to his/her work because of their disposition or character

'Incompatibility' means an employee does not 'fit in' to the working

environment and relate poorly to colleagues and clients.11

These grounds is not expressly stated as grounds for dismissal but it will be dealt with as a form of poor work performance because it affects the employee's ability to perform his/her job.

Dismissal for Incapacity - Ill Health or Injury

Incapacity on the grounds of ill health or injury may be temporary or permanent.

Temporary Illness or Injury

If an employee is temporarily unable to work in these

11

Grogan Workplace Law chapter 12

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circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include : the nature of the job; the period of absence; the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. The employee should be given the opportunity to make representations and the employer should respond to it.

Permanent Incapacity

In cases of permanent incapacity: The employer should ascertain the possibility of securing alternative employment; or Adapting the duties or work circumstances of the employee to accommodate the employee's disability.

factors which may be relevant in determining the fairness of a dismissal for incapacity due to ill health or injury are: The degree of incapacity. The cause of the incapacity [In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider]. Employers are expected to accommodate work-related

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illnesses or injuries by providing work less onerous

To ensure that a fair dismissal for ill health or injury the following factors should be considered:

Is the employee is capable of performing the work? If the answer is no, to what extent is the employee able to perform the work? How can the employee's work circumstances be adapted to accommodate the disability? Where this is not possible, how can the employee's duties be adapted to accommodate the disability? Are there any suitable alternative work available?

Dismissal Based on Operational Requirements12

Introduction

A dismissal based on the operational requirements of an employer is one that is based on the economic (financial reasons), technological (new technology), structural (restructuring) or similar needs of the employer. The Code of Good Practice: Dismissal based on Operational Requirements13 serves as a guideline when dismissing employees for this reason. Dismissals for operational requirements have been categorised as "no fault" dismissals because the employee is not responsible for the termination of employment. Because retrenchment is a "no fault" dismissal and because of its human cost, employers have particular obligations of ensuring that all possible alternatives to

12 13

Section 189 and 189A of the LRA 66 of 1995 Code of Good Practice : Dismissal based on Operational Requirements - General Notice 1517 in Government Gazette 20254 of 16 July 1999

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dismissal are explored and that the employees to be dismissed are treated fairly. Retrenchment by employers with less than 50 employees14

Parties to be consulted

"Consult" means listening to the advice, input and representation of the other party, and responding to it before taking a decision.

If the employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult

any person whom the employer is required to consult in terms of a collective agreement; if there is no collective agreement that requires consultation a workplace forum If no workplace forum any registered trade union if no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.

Consultation process

Proper consultation will include: The opportunity to meet and report back to employees; the opportunity to meet with the employer; and the request, receipt and consideration of information.

14 15 16 17

Section Section Section Section

189 LRA 66 of 1995 189A of the LRA 66 of 1995 37(1) BCEA 75 of 1997 64, 66, 67 and 76 of LRA 66 of 1995

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The employer and the other consulting parties must engage in a meaningful joint consensus-seeking process and attempt to reach consensus on appropriate measures to: avoid the dismissals; minimise the number of dismissals; change the timing of the dismissals; and mitigate the adverse effects of the dismissals;

A selection method for selecting the employees to be dismissed. Avoid any discriminatory criteria. The LIFO [last in first out] principle is an example of criteria which is considered to be fair, provided that it does not undermine the affirmative action program.

The severance pay for dismissed employees.

A mechanical ''checklist' approach must be avoided and employers should consult in good faith in an honest attempt to reach consensus.

Information to be disclosed in writing

The employer must issue a written notice [See Form K3] inviting the other consulting party to consult with it and disclose in writing all relevant information, including, but not limited to :

the reasons for the proposed dismissals; the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives;

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the number of employees likely to be affected and the job categories in which they are employed; The proposed method for selecting which employees to dismiss. The employer must select the employees to be dismissed according to selection criteria that have been agreed to by the consulting parties or if no criteria have been agreed, criteria that are fair and objective. The time when, or the period during which, the dismissals are likely to take effect; the severance pay proposed; any assistance that the employer proposes to offer to the employees likely to be dismissed; the possibility of the future re-employment of the employees who are dismissed. Retrenched employees should receive preference if the employer again hires employees with comparable qualifications; [See Form K4] the number of employees employed by the employer; the number of employees that the employer has dismissed for reasons based on its operational requirements in the preceding 12 months.

Representation

The employer must allow the other consulting party an opportunity during consultation to make representations about any matter relating to the proposed dismissals. The employer must consider and respond to the representations made and state the reasons for disagreement with the other party. Written representations must be responded to in writing. The onus will rest on the employer to prove that any

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information that it has refused to disclose is not relevant.

Final Decision

After proper consultation the final decision to dismiss employees rests with the employer. Retrenchment by employers with more than 50 Employees15

An employer who contemplates dismissing at least:

10 employees, if the employer employs up to 200 employees; 20 employees, if the employer employs more than 200, but not more than 300, employees; 30 employees, if the employer employs more than 300, but not more than 400, employees; 40 employees, if the employer employs more than 400, but not more than 500, employees; or 50 employees, if the employer employs more than 500 employees; or the number of employees that the employer contemplates dismissing plus the number of employees that have been dismissed by reason of the employer's operational requirements in the 12 months prior to the employer issuing a notice is equal to or exceeds the numbers specified above.

Employee may participate in a strike and employers may lock out employees. Consulting parties may agree to vary the time periods for facilitation or consultation.

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Facilitator

The CCMA must appoint a facilitator to assist the parties engaged in consultations if the employer has in its notice requested facilitation; or consulting parties representing the majority of employees have requested facilitation and have notified the Commission within 15 days of the notice. If a facilitator is appointed and 60 days have elapsed from the date on which notice was given : the employer may give notice to terminate the contracts of employment in accordance the BCEA16 A registered trade union or the employees who have received notice of termination may either give notice of a strike or refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court.

If a facilitator is not appointed :

A party may not refer a dispute to a council or the CCMA unless a period of 30 days has lapsed from the date on which notice was given.

Once the prescribed periods have elapsed :

The employer may give notice to terminate the contracts of employment.; and A registered trade union or the employees who have received notice of termination may give notice of a strike or refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court.

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Notice of the commencement of a strike may be given if the employer dismisses or gives notice of dismissal before the expiry of the prescribed periods.

A consulting party may not :

Give notice of a strike in terms of this section in respect of a dismissal, if it has referred a dispute concerning a fair reason for dismissal to the Labour Court; Refer a dispute about whether there is a fair reason for a dismissal to the Labour Court, if it has given notice of a strike.

If a trade union gives notice of a strike:

No member of that trade union, and no employee to whom a collective agreement concluded by that trade union dealing with consultation or facilitation in respect of dismissals by reason of the employers' operational requirements has been extended, may refer a dispute concerning a fair reason for dismissal to the Labour Court. Any referral to the Labour Court is deemed to be withdrawn. Strike or Lockout17 Every employee has the right to strike and every employer has recourse to lock-out if the issue in dispute has been referred to a council or to the CCMA and a certificate stating that the dispute remains unresolved has been issued; or a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral to the CCMA [except where a

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facilitator was appointed] and after that, in the case of a proposed strike, at least 48 hours' notice of the commencement of the strike, in writing, has been given to the employer, unless : the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or the employer is a member of an employers' organisation that is a party to the dispute, in which case, notice must have been given to that employers' organisation; or In the case of a proposed lock-out, at least 48 hours' notice of the commencement of the lock-out, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council.

The requirements above do not apply to a strike or a lock-out if-

The parties to the dispute are members of a council, and the dispute has been dealt with by that council in accordance with its constitution; the strike or lock-out conforms with the procedures in a collective agreement; the employees strike in response to a unprotected lock-out the employer locks out its employees in response to their taking part in a unprotected strike. an employer may only lock out in respect of a dispute in which a strike notice has been issued;

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Replacement Labour18

An employer may not take into employment any person to continue or maintain production during a protected strike if the whole or a part of the employer's service has been designated a maintenance service; or for the purpose of performing the work of any employee who is locked out, unless the lock-out is in response to a strike.

'Take into employment' includes engaging the services of a

temporary employment service or an independent contractor.

Failure to Comply with a Fair Procedure

If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court for an order :

compelling the employer to comply with a fair procedure; interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure; directing the employer to reinstate an employee until it has complied with a fair procedure; make an award of compensation.

Dispute Referred to the Labour Court

Disputes that concerns the dismissal of employees the Labour Court must find that the employee was dismissed for a fair reason ifthe dismissal was to give effect to a requirement based on the employer's economic, technological, structural or

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similar needs; the dismissal was operationally justifiable on rational grounds; there was a proper consideration of alternatives; and selection criteria were fair and objective.

Date of Dismissal19

The date of dismissal is the earlier of :

the date on which the contract of employment terminated; or the date on which the employee left the service of the employer.

When the employer:

has offered to renew on less favourable terms, or has failed to renew, a fixed-term contract of employment, the date of dismissal is the date on which the employer offered the less favourable terms or the date the employer notified the employee of the intention not to renew the contract; refused to allow an employee to resume work, the date of dismissal is the date on which the employer first refused to allow the employee to resume work; refused to reinstate or re-employ the employee, the date of dismissal is the date on which the employer first refused to reinstate or re-employ that employee.

19

Section 190 LRA 66 of 1995

24

TERMINATION REQUIREMENTS Notice periods20 A contract of employment may be terminated by any of the parties only on notice of not less than: 1 week, if the employee has been employed for 6 months or less

If an employer terminates the contract it must always be for a fair reason and according to a fair procedure as required by the LRA. Never terminate a contract by merely giving notice.

2 weeks, if the employee has been employed for more than 6 months but not more than 1 year 4 weeks, if the employee has been employed for 1 year or more; or The employee may not be required to give longer period of notice than required of the employer. Notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee. If an employee is not able to understand it, the notice must be explained orally in an official language the employee reasonably understands. The employer may not give notice of termination of a contract of employment during a leave period and may not run concurrently with any period of leave to which the employee is entitled.[excluding sick leave] A dismissed employee has the right to challenge the fairness of a dismissal even if the contract of employment was terminated with the required notice. An employer or an employee may terminate a contract of employment without notice for any cause recognised by law.[Examples: Summarily dismissal after being found guilty of a serious offence or when a fixed term contract expires] An employer may pay an employee in lieu of notice.

20

Section 37 BCEA 75 of 1997

25

[Example the employer pays the employee instead of requiring the employee to work his/her notice period] If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the employee for that period of notice.21 Fixed term Contracts of Employment An employer need not give notice of termination if the contract states an expiry date. The contract will automatically terminate at the end of the specified period. Beware of creating expectations with employees of renewal of fixed term contracts. If an employer fails to renew or renew on less favourable terms the employee may claim dismissal.22 Payments on Termination of Employment

23

On termination of employment, an employer must pay an employee : For any paid time off that the employee is entitled to, that the employee has not taken; Annual leave due to the employee on termination of employment. If an employment contract is terminated due to operational requirements of the employer, the employee must be paid severance pay of not less than 1 week for each completed per year worked.24 Employers and employees may agree on more favourable severance packages. If an employee unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer, he/she will not be entitled to severance pay.

21 22 23 24

Section Section Section Section

38 BCEA 75 of 1997 186(b) LRA 75 of 1997 40 BCEA 75 of 1997 41 of BCEA 75 of 1997

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Certificate of Service25

On termination of employment an employer must issue an employee with a certificate of service stating the following information. [See Form K5]

25

Section 42 of the BCEA 75 of 1997

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PRO FORMA LETTER OF SUSPENSION

Date _______________

Dear ________________

RE : SUSPENSION PENDING THE OUTCOME OF AN INVESTIGATION

This letter serves to inform you that your services as _______________ (job title) are suspended from ______________________ (date) pending the outcome of an investigation and possible hearing. You will be suspended from all duties on payment of your full salary. We are likely to need your assistance in regard to the investigation and will request your attendance in this regards when necessary.

Yours faithfully

__________________ EMPLOYER

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NOTICE TO ATTEND A DISCIPLINARY HEARING

NAME OF EMPLOYEE: ____________________________________________________

Take notice that a disciplinary hearing will be held to investigate the following alleged offence(s):

(Describe the type and category of the alleged offence and give full details of the time, place and date of the alleged offence)

___________________________________________________________________________ ___________________________________________________________________________

The disciplinary hearing will be held on ______________________________ (date and time) at _______________________________(place)

You are hereby informed that your have the following rights: The right to representation (not legal representation) The right to an interpreter The right to consultation The right to cross-examine the complainant and the witnesses The right to testify and to call witnesses

If you refuse/fail to attend the disciplinary hearing, the proceedings shall take place in your absence. SIGNATURE OF EMPLOYEE: SIGNATURE OF EMPLOYER: SIGNATURE OF WITNESSES DATE _______________________________________ _______________________________________ _______________________________________ _______________________________________

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PRO FORMA NOTICE OF INTENTION TO RETRENCH

Dear ___________________

Due to financial difficulties that the company currently experience, the company is forced to take certain measures to remain financially viable. As these measures may have an impact on employees, you and your representatives (union representatives) are accordingly invited to a meeting that will be held on:

____________________(date and time) at ___________________ (place) where a discussion will take place and a serious attempt will be made to reach consensus on the following aspects.

1. Reasons for these measures and alternatives to avoid possible retrenchments. 2. The number of employees that may be affected. 3. Job categories that may be affected. 4. Selection criteria. 5. Time when, or the period during which the dismissals are likely to take effect. 6. Severance pay. 7. Possible assistance that the employer can offer to the employees likely to be dismissed. 8. The possibility of future re-employment of employees who are likely to be dismissed.

You will have the opportunity to make representations regarding the above. The employer will consider these representations in good faith.

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EMPLOYER ____________________

EMPLOYEE ____________________ (Acknowledge receipt of this letter)

DATE __________________________

WITNESS ______________________

PRO FORMA NOTICE OF RETRENCHMENT

Dear __________________________

As you are aware we had discussions with employees' on________ [dates] where management consulted with the union/employees on possible retrenchments due to financial difficulties that the company currently experience. After due consideration of all relevant factors retrenchment of certain employees are inevitable.

We regret to advise you that your position has been affected by this decision and your services will therefore be terminated with effect from ____________________. In order for you to find alternative employment you do not have to work your notice period, which will be paid by the employer. Your services will therefore terminate on receipt of this letter. You will be paid a severance pay of one week's salary for every completed year worked.

Should a vacancy occur for which you are qualified within the next six months we will offer you first choice for such position. However, we cannot guarantee that we will be able to offer you re-employment. In order to enable us to contact you, please inform us of your permanent address as well as contact details. Should we be in a position to offer you reemployment we will contact you at the given address and contact number. If we do not hear from you within 10 working days we will assume that you do not wish to take up the offer.

A pay advice is attached which specifies what monies have been paid to you and how these have been calculated. Included in this amount is payment in lieu of notice.

We wish to thank you for your loyal service and we wish you every success for the future.

32 31

Yours faithfully

______________________ EMPLOYER

______________________ DATE

---------------------------------------------------------------------------------------------------------------ACKNOWLEDGEMENT OF RECEIPT OF LETTER

I, the undersigned hereby acknowledge receipt of this letter concerning notice of retrenchment. I also acknowledge and accept the amount of R __________________ as detailed on the pay advice being monies due to me in full and final settlement of all and any claims and/or disputes arising from termination of my contract of service either now or in the future.

__________________________ WITNESS

____________________________ EMPLOYEE

___________________________ DATE

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CERTIFICATE OF SERVICE

NAME AND SURNAME OF EMPLOYEE _____________________________________

IDENTITY NUMBER

_____________________________________

DATE OF COMMENCEMENT

______________________________________

JOB TITLE

______________________________________

DATE OF TERMINATION

______________________________________

REASON FOR TERMINATION (IF EMLOYEE REQUESTS) ______________________________________

CONDUCT DURING SERVICE

______________________________________

SALARY AT DATE OF TERMINATION OF SERVICE ______________________________________

DESCRIPTION OF APPLICABLE COUNCIL/SECTORAL EMPLOYMENT STANDARD (IF ANY) ______________________________________

NAME OF EMPLOYER ADDRESS OF EMPLOYER

______________________________________ ______________________________________

______________________________________ DATE ______________________________________

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