Forced Retrenchment vs Resignation

[CvdM]

Another firm merged with our firm. The employees were offered the same benefits and, in most cases, better benefits than they had before. All the employees signed the new employment agreement except one. The reason was that this employee now had to work in our offices that was slightly further away from her home than the previous place of employment. The previous employment agreement states that the employer is entitled to direct where the employee should work. The previous employer directed that the employee should report for duty at our offices. The employee refused stating that she does not have reliable transport to travel the extra distance. We then offered to pay an additional R1 900.00 per month for travel expenses. She again refused. She is now taking us to the CCMA to force us to retrench her. Due to her many years of service, her retrenchment package will be substantial and she wants this "pay-day" rather than resigning and only receiving one months' notice salary. The questions is: Can an employee force an employer to retrench her because she does not want to resign?

[HR Solutions]

Whaaaaat ? Never heard of that !

[Greig Whitton]

The questions is: Can an employee force an employer to retrench her because she does not want to resign?

No, retrenchments can only be done on the basis of valid operational reasons and must follow strict procedures. An employee can't simply demand retrenchment because it is more convenient for them than resigning. An employer who acquiesced to such a demand could find themselves in big trouble for failing to follow the prescribed procedures.

In any event, her demand for retrenchment is a non-issue. She is refusing to obey an instruction (i.e. report to the new workplace) that is both lawful (i.e. included in the employment contract) and reasonable (i.e. the new workplace is close to the old one and the employee has been offered compensation for the extra travel). Refusing to obey a lawful and reasonable instruction amounts to insubordination (possibly gross insubordination). Therefore, she has four choices:

1. Resign.
2. Report to work as instructed.
3. Attend a disciplinary hearing for her insubordination and risk dismissal.
4. Run to the CCMA with her laughable claim (and most likely lose).

[sterne.law@gmail.com]

It is worth adding, even if there was a retrenchment, if an employee refuses a reasonable offer of alternative employment, then the company does not need to pay severance pay.
Instruct her to work. If she refuses then it is gross insubordination.
If she does not attend start AWOL/Desertion proceedings