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Thread: Some advice from you legal eagles out there

  1. #1
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    Some advice from you legal eagles out there

    Question 1: Can a company in there employment contract state that you will not get a retrenchment package if you ever get retrenched? If say you joined them 10 years ago, fresh out of school, no jobs lined up, they employ you but with this clause in the contract? Now 10 years later, they could possibly loose a tender, meaning no further income for the company and you out the door with nothing?

    Question 2: Closely related to question 1......they put out a memo, stating that come the 31st of January 2011, if they did not get the new tender, this would be your last day of work?

    Now I am no legal expert, and they usually have laywers doing the HR thing, but I've seen how they do what they want regardless of the legallity. Half of the people they have ever dismissed had very strong cases if they just had good representation at the CCMA. But this?!!!! I mean, this must be bull^%$?!!!

    Who can comment, and no offence to all those who think they know, I need stuff that if I say "according to this law.............you cannot do this because a,b,c....."
    IJS Installations
    Electrical, Residential Gas and Electric fencing.

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    Platinum Member sterne.law@gmail.com's Avatar
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    You cannot contract outside of the law. In otherwords a contract can not contain a clause that contravenes any law. Thus, the clause in the contract is void.

    The company would be entitled to retrench because they never got a contract, but would still need to follow the section 186 or 186A procedures. That includes consulting, other ways to avoid retrenching etc. There is a difference where a person works on a contratc thta is related to a specific task or project - where the contract terminates at a specific date or when a specific event occurs or does not occur.
    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.

  3. Thank given for this post:

    AndyD (03-Sep-10), Dave A (02-Sep-10), Jacques#1 (03-Sep-10)

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    Thanks cuz...

    But say that again in english please.

    The person is a full time employee (permanent), and all the stuff that goes with it.

    So you are saying, what they are attempting to do is in theory illegal? They have to do retrenchments and cannot state in the employee contract or on a recently published memo that you will not get retrenchment remuneration the day they close the doors?

    What do you think about the part that they say on the memo, on this day, if we haven't won the tender, it will be your last working day?

    This is tipical of money hungry employers....the owners drive extremenly expensive "supercars", own their own planes, game farms, etc.....I am willing to bet money that the day they close they file for bankruptcy and run away with the cash.....
    IJS Installations
    Electrical, Residential Gas and Electric fencing.

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    Platinum Member sterne.law@gmail.com's Avatar
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    They MUST still follow the retrenchment procedure.
    So, they must serve notice on employees that retrenchment is being contemplated and allow employees time to make suggestions.
    A meeting is then held and suggestions are discussed. Ways to reduce retrenchments are discussed, what the retrenchment packages will be and the criteria used to decide who will be retrenched.
    After this a decision is made. There may be retrenchments, maybe short time, some times wage reductions or a combination of these things.

    A retrenchment has 2 components -
    The procedure and then the substance or reasoning.
    Court will seldom rule on reasoning, because they cannot decide what a business needs. Procedure is however very strict, it is possibly the only area of labour law, or any law, where a check box approach can be used.
    As it now stands, a letter saying if we do not get a contract you will be retrenched would be an unfair procedure.

    If the company has more than 50 employees there are extra criteria and procedures, including a longer bnotice period and consultation period.

    If the company does close, the employees can still refer a matter and any claims will have to be submitted to the liquidator. Where more than 1 employee is retrenched it also becomes a labour court matter.
    the employees may want to get together and approach an attorney, in this way they can try and get an interim interdict to stop the removal of assets etc, etc.
    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.

  6. Thanks given for this post:

    AndyD (03-Sep-10)

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    Site Caretaker Dave A's Avatar
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    I got an ex-employee calling me yesterday looking for advice. He's been notified that he's a candidate for intended retrenchment.

    The "any suggestions" meeting is being held in two weeks time. In the meantime he's already been zapped with two written warnings for minor transgressions...

    (nothing to do with trying to avoid paying out retrenchment packages, of course )

    ...of dubious merit....

    (wait for it)

    ...without holding a disciplinary

    Jacques, hold onto that memo and watch your back, buddy.
    The trouble with opportunity is it normally comes dressed up as work.

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