I am finishing my "fishing leave today" with Absa after 3 months at home. I have went for 2 interviews and was unsuccessful in the one. The other one I was asked of my intention. I said that I would opt to rather be retrenched than accept a junior position. I was not given a firm offer on the junior position because of my stance on it. Am I able to request a severance package in lieu of not securing any offer. Absa may argue that I did not accept, but I did NOT receive a firm formal offer.I will utilize CCMA if Absa rejects my package on the basis that I did not accept the position. As far as I am concerned, I was not formally given the offer after I stated my preference to be retrenched. Where would I stand?
Welcome, thank you for the opportunity to address your question.I need a bit more information in order to provide you with a comprehensive answer:
HelloI am a customer experience process improvement consultant. The alternate position is for a customer survey consultant which I felt is too junior for my experience. I have 20 years experience and this role is for someone with a few years experience.I applied for a role which was to be the manager of the junior role offered to me. I was told that the manager role was declined to all internal absa staff on the basis that they were looking for a specialist and needed to go externally. I did not apply for the junior consultant role but was called in for an interview.I did not receive any minutes. I was told that HR Would consider my retrenchment but heard nothing till a week ago that Absa would make final decisions after this fishing period. They were keen to place staff first before any package awarded. However I did not receive any formal offer during this period. I also did not get any minutes of the meeting to accept or refute.Am not sure how they documented the refusal but I received no minutes.No renu,eraton, duties, etc was discussed as it was felt that I was not untested. However, remuneration normally remains the same as current as this is an internal transfer.Thanks.
Section 41(4) of the Basic Conditions of employment Act states as follows:
"4)An employee who unreasonably refuses to accept the employer's offer ofalternative employment with that employer or any other employer is not entitledto severance pay in terms of subsection (2)."
This means that if the employer is able to show that a reasonable offer of alternative employment was refused would forfeit any severance pay, which in most cases is a substantial part of any severance package.
The questions as to what constitutes an offer and what would be considered reasonable alternative employment would provide insight into your current position.
An offer need not be written but could be done verbally provided the employer is in a position to prove that the offer was made, usually by means of interview minutes. I advise all corporate clients to make such alternative offers in writing detailing all material conditions of employment. In terms of the information provided it would be difficult for the employer to prove that a valid offer was made and that you declined such offer based on all the relevant information pertaining to the conditions of employment of that offer.
Is it a credible or reasonable offer? The package as you have suggested would remain the same and the role would be in the same job family, yet a bit junior and less complex than the redundant role. In my legal view it is a very reasonable offer in that the employer is seen to be making every effort to limit the impact of potential operational dismissals by redeploying affected staff to similar job family roles, but at a more expensive rates.
Be very cautious in any decision to decline a reasonable alternative role when presented as you could very well end up being validly dismissed for operational requirements but without any substantial retrenchment package.
Basically you could be dismissed and leave with some notice pay (if the three months does not count as notice) and the balance of your leave pay.
Probably not the answer you would have liked to receive but it is important to know where you stand.
I trust that the legal information provided is helpful in assessing your position going forward. I am always happy to clarify any aspect of the answer provided should you so require. Feedback and a rating of my answer will be greatly appreciated as experts are only paid on answers positively rated by our clients.Best regards,
B.Com LLB Registered Corporate lawywer
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