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Thread: Forcing employee to fixed term contract

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    Forcing employee to fixed term contract

    Hi All

    This company has a Jhb head office and a remote office. I work for the remote office. The remote office main source of income was a contract, which was not renewed. I have been with the company for 5 years.

    All employees of the remote office received letters of termination via email without any prior notification nor meetings. We have been given 6 weeks notice.
    The remote office boss had a meeting with Jhb more than 2 months ago. The rest of the remote office was not made aware of the meeting nor what was discussed. This is confirmed in our termination letter.
    The only payout offered is for leave, no retrenchment package what so ever..

    The contract has suddenly been extended and now we are being offered a fixed term 12 month contract.

    My very basic employment contract states "I am eligible for a 13th cheque". There are no provided that I do clauses.
    Does this mean I must get a full 13th cheque every year.

    Regards

    Stressed Barry
    Last edited by BarryTemp; 27-Apr-10 at 06:26 AM. Reason: Typo

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    Moderator IanF's Avatar
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    Barry
    It sounds like you are unhappy. Eventually you will want a new job, so now you have 12 months to find one. Get the book "what color is your parachute" to inspire in the job hunt.
    I would approach the company and ask for a signing bonus if they want a you to sign a fixed term, otherwise you want a month to month.
    But if the unhappiness is there you will want to get out so start on that. I can't answer whether what they have done is legal.
    Only stress when you can change the outcome!

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    Site Caretaker Dave A's Avatar
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    Is this a failure to follow due process for retrenchment, or a unilateral change of employment conditions?
    The trouble with opportunity is it normally comes dressed up as work.

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    BarryTemp (27-Apr-10)

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    Talking What is the correct route to follow

    Thanks for the quick response.

    Unhappy caused from unfair treatment. I know what profit the company has made from the remote office. When it comes to 13th cheque and increase, sorry. Then contract ends, get tossed like a used condom (JZ would not understand).

    This is a person specific skills based contract, with the remote branch standing together on this.

    My ideal outcome:
    Jhb will "force" us into a fixed term contract (with a 30 day notice period).
    We then take to CCMA to get a retrenchment package and some compensation for unfair labor practice (i.e. ailure to follow due process for retrenchment).

    What are our chances?
    Surely 1 week for every year plus at least 2 months for not notifying us?

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    Platinum Member sterne.law@gmail.com's Avatar
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    From your wording it appears you are/were on an employment contract and not a fixed term contract. If it were a fixed term contarct linke dto the project you would be up the creek. As an employee they needed to observe the standard retrenchment procedures, and have thus committed an unfair retrenchment, on the procedureissue.

    The new fixed term contract does indeed become a unilateral change of terms and conditions. It would appear, depending on timing, that they affected a retrenchment(unfair one) for which you are entitled to severance of 1 week per COMPLETED year of service. They have now offerred re-employment, albeit as a fixed term contract.
    Alternatively they have not retrenched you and are now changing the terms and conditions, which requires consultation. It is also possible that the retrenchment has also been used as a tool to force you to accedde to their demands.
    It appears you have a strong case. One drawback is that where more than 1 person is retrenched then, failing conciliation, the matter is referred to labour court and not CCMA.
    Timing is also important. If you take up the cudgels now, the employer could simply follow the correct procedure and tehn offer the new contracts as an alternative to retrenchment. You would still have some arguments but they woudl have had teh opportunity to clean up. Also showing that the retrenchment was a tool to force accepting a demand is not that easy, particulalry if the employer starts covering the bases early.
    You did say that notice was already served, so you could argue that you were retrenched thus entitled to severance and then take up the new position offerred and still refer a matter for unfair retrenchemnt procedure and possibly an unfair retrenchment.
    As to 13 cheque that is a term of employment and differs from a bonus or discretionary payment. In teh absence of any conditions to obtain a 13th cheque it is a statutory payment due to you.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    BarryTemp (27-Apr-10)

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    So let the fun begin

    So let the fun begin, thanks for all the prompt responses.
    D

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