[Question] Unfair Retrenchment???

[78wendy78]

Hi.

I would like to know whether retrencment based on "present economic climate, our present financial position and our present operational requirements" could be regarded as unfair under the following circumstamces.

Only employee selected for possible retrenched has previously been threatened with disciplinary action (although action was nevet actually instituted) and has fairly recently received a (first and) final written warning.

Any comments / advice will be greatly appreciated.

[Dave A]

How large is the company?
Has "last in - first out" been applied?

[Justloadit]

Is the company experiencing financial difficulties?

[78wendy78]

How large is the company?
13 employees
Has "last in - first out" been applied?

Does "last in, first out" apply to the last employee appointed, no matter what her position? Or does it have to be a similar position as mine (as they claim that "... your position has become redundant as a result of the fact that the firm can possibly do away with this position and be more cost effective" and "It is anticipated that your responsibilities could be absorbed by the rest of the firm's administrative staff, as well as its professional staff.")
An administrative lady was appointed after me, but she was also made our Office Manager (despite the fact that I took over most of the responsibilities of our previous Office Manager who went on maternity leave and never returned).
They have been trying to get me out of there for some time now by treating me different than the other employees and they have been making things unbearable for me. I would go so far as to say that they are discriminating against me.
They have been claiming since late last year that the firm is not doing as well as it used to. Although I don't have access to the firm's bank statements, I believe it is not true and that creating the impression that the firm is not doing so well was all part of their plan to get rid of me.
Certain employees still received 13th cheques in December (I was obviously not one of them). And just this past Friday the firm bought lunch for all of them. And in November / December 2016 they also offered an existing employee's spouse a position at our other branch.

Thanks for your help! I appreciate it!

[Dave A]

Does "last in, first out" apply to the last employee appointed, no matter what her position? Or does it have to be a similar position as ...

Ordinarily the decision is how many people to trim in each category or occupation, and then you'd apply last in first out in each of those categories.

An administrative lady was appointed after me, but she was also made our Office Manager (despite the fact that I took over most of the responsibilities of our previous Office Manager who went on maternity leave and never returned).

That is actually a different issue unless it only just happened.
If you were carrying the responsibilities for a while, were you offered an opportunity to apply for the post?
Is the appointee actually more qualified to be office manager than you are (either by qualification or previous experience)?

For the rest - ok for all of it really, the devil is in the detail.
You may have a case to argue, or perhaps not.

It really does take an intimate knowledge of all the facts.

[78wendy78]

Thanks for your reply, Dave. No, I was not offered an opportunity to apply for the position. Neither was the other lady. She was simply appointed.

[78wendy78]

And just FYI - I have been told by the main Director of the firm, on various occasions, that my work is excellent and they have no problem with my work.

[HR Solutions]

reviously been threatened with disciplinary action

Why was this ?

I have been told by the main Director of the firm, on various occasions, that my work is excellent and they have no problem with my work.

Im trying to figure out how one moment you were "threatened" with disciplinary action and the next moment your work is "excellent" - Can you elaborate what happened ?

[78wendy78]

There were more than one incident. It is as if they always find something to reprimand me on. The threat came about when we received a Summons on behalf of a client. I took the initiative to draft a Notice of Intention to Defend. It was also my job to print the Director's e-mails on a daily basis, which I did and gave to him every day. I was appointed as a Senior Typist and it was his duty to check which e-mails required immediate attention (that was the whole purpose of me having to print it for him). I handed the Summons with the Notice of Intention to Defend to him, together with his e-mails. When he had a look at all the documents days later and came across the Notice of Intention to Defend, he lost it and raised his voice at me (other employees could hear him all the way in their office from behind a closed boardroom door). He asked me whether I thought I had done enough, to which I replied I did and explained to him what I had done. He then called me ridiculous, said that he was going to tell the main Director that he can no longer work with me. I then sent an e-mail to the main Director, who was out of the office at the time, and explained my side of what had happened and what was said to me. I also said that I have previously been reprimanded for not printing his e-mails, but when I do print them, he doesn't look at them. The problem is apparently my attitude (the fact that I won't keep quiet when I am being reprimanded for something which is not my fault). They said that there is nothing wrong with my work and that my work is good, speedy and correct. I was, however, labelled by them as an insolent employee. I am actually not an exrovert at all, but I am sorry, I refuse to keep quiet when I did nothing wrong. From there on things just went downhill. Every so often there would be something. Other things included me being reprimanded for qouting our reference / account / matter number on accounts I typed for an Advocate, which accounts were payable by us. The reference numbers simply made it easier for us to capture the payments on the correct matters on the system. I was told that I should discuss things like that with them first. Then another director raised her voice at me one day when she came to me and told me that disbursements should be authorised before I load them onto the systems. I told her that nobody ever told me that. The Office Manager also told me afterwards he wasn't aware of this. Simply because it never was the case and I had always just loaded disbursements onto the system without any permission as it was part of my duties. When I said to the Director that I was never told to get authorisation first, she raised her voice at me and said "Well, I'm telling you now." Since this incident she doesn't greet me at all, she will walk straight past my office and greet everyone else.
Another time the Director was in my office and asked me to print an account for him. I immediately knew what he was going to ask me so I walked to my desk while he was still talking to print the account. I was then accused of "walking away while he was still talking to me" and received a Final Written Warning.
I am not a troublemaker or rebal and have never had so much drama at any of my previous jobs (even one where I worked for 8 years).
All of the above (and other drama) took place over a period of only 3 and a half years).

[Dave A]

The way I see it, there are two tracks that this conversation can go down.

There's Labour Legislation - and I guess more often than not that's where the conversation around here tends to go.

But frankly, reading your posts perhaps the conversation needs to turn to the art of navigating office politics. The harsh reality is that if you get good at that, you rarely need to resort to Labour Legislation to rescue you. Sometimes it's not what you do, it's how you do it that makes all the difference.

[78wendy78]

Thanks. I get that. All of the incidents aside, my point is that it is unethical, unprofessional, dishonest and cunning to claim to want to retrench a person for financial reasons / because their position has become redundant when, in actual fact, you have been wanting to / trying to get rid of them for other reasons.

[HR Solutions]

I think what Dave has said is correct. From the sound of things there has been quite a lot of "friction" in the office. You look at it one way and they look at it another way. They really are entitled to do what they want within the laws. Nothing is unethical and unprofessional from what I can see. to be quite honest a few things that you have described that you did would have pissed me off as well - Perhaps you don't see it...

[Justloadit]

Yep, and he who controls the money is entitled to do what he wants with it.
It may seem unethical to you, but to the organization, you are an obstacle, and they will push what ever manner they can with in the law to achieve it.

Sometimes it is better to find another place where you are happy than a place in which you dread going to everyday. This dread will become a huge psychological problem in your life, and will affect your health. The question now becomes, is it worthwhile for you to accept these conditions?

[78wendy78]

Thank you for the replies. This will be my last post.

I am working on finding a happy place but unfortunately it doesn't happen overnight and, until then, I need to put food on the table.

If I understand correctly the conclusion is:-
If an employee pisses an employer off, but the employer can find no legal ground (in terms of the Labour Relations Act) on which to dismiss (fire) an employee, the employer may claim (irrespective of whether it is actually the true state of affairs) that the employee's position has become redundant or that the employer is facing financial difficulty and retrench the employee.

[Dave A]

my point is that it is unethical, unprofessional, dishonest and cunning to claim to want to retrench a person for financial reasons / because their position has become redundant when, in actual fact, you have been wanting to / trying the real purpose is to get rid of them for other reasons.

Wendy, (subject to my little tweak) I'm happy to agree with you 100%. The problem is if they do things by the book from a process point of view, and you're going to run a "the real reason is they wanted to get rid of me" bus down the CCMA/Labour Legislation route to get redress, you're going to have to prove that on balance of probabilities (as minimum) that was indeed their motive.

That is likely to be a task a lot easier said than done.

It seems you're convinced they want to get rid of you. On one level I'm concerned that this is an assumption that is affecting your assessment of the situation of the company and have you barking up the wrong tree.

At another level though - assuming you are right, perhaps your better option is to figure out why they are keen to see you out the door and fix why that would be.