HiWelcome to Just Answer!! Thank you for giving me the opportunity to assist you.
Will you be able to go operational?
They still have a long way to go and need to indicate that you are not fit for an oiperational role and will have to show due cause.
The procedure set out in section 189 (dealing with retrenchments) must be followed before dismissing "one or more employees" for operational requirements". Section 191(12) refers to "a consultation procedure in terms of section 189". Both sections191(12) and 191(5)(b)(ii) make it plain that an individual employee who has been dismissed for operational requirements may refer a dispute to either the Labour Court or the CCMA, whether the case is founded on procedural fairness or substantive fairness, or both.
My view is that you will struggle with a 6 month package as three months is usually the most. You should however first fight for the retention of your job or similar. If they do proceed without you agreeing, then the matter can be referred to the CCMA.
I think you are in a strong position.
Thanks, XXXXX XXXXX your answer. I do believe that they have ulterior motives to move me out but I'm sure I am in a strong position legally as they have not yet been able to prove my inability to perform an operational role.
I hear that the letter in writing stating all the above will be presented to me tomorrow so I may have more questions regarding that.
In the meatime, thanks for your timeous response. I am assured.
Let me know.
Just to give you an update. We had a meeting yesterday with the CEO (my boss was present on the phone) where he presented their offer which basically amounted to 3 months plus what was due to me (leave days and July salary). He was not willing to enter into any discussion regarding the role and wanted me to sign the letter on the spot. What was interesting is that the CEO did not want to show me the letter until I had accepted the number they offered. I have requested for some time to think about it (as yet I have nothing in writing). I am also of the mind that they want me to resign as opposed to this being a retrenchment due to operational reasons as they will have to prove that they took appropriate measures to avoid the need for retrenchment.
My next move is to reject the offer and give them the alternative which is to keep my job and they re-write the job description with me in place.
I am working on the knowledge that unless they can prove that I am unable to do the job as per their change in requirements, I can still keep my job.
Will keep you posted.
I am confident that your approach is correct. Your assumptions are also spot on as this is a very old tactic used by employers when it comes to retrenchment and constructive dismissal.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).