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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14831
Experience:  L.LB (UOVS)
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I will try and sketch my situation as short as possible and

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I will try and sketch my situation as short as possible and would appreciate your feedback regarding what my rights or future handling of this might be?

I was an Operations Manager responsible for call centres in a listed JSE company. The call centres have had several issues based on factors out of my control, i.e. massive amount of software and product issue and operational processes not being followed before the process reached the call centre. Based on this I compiled a full report on the aspects that needed to be addressed about 3 months ago. This report was submitted to the MD and I also submitted this to the COO and CEO. Approximately a month ago the MD informed me that he will first get two call centre experts in to come and do an analysis of the call centre from where a decision will be made regarding my report and how we will handle the call centre going forward. I was tasked to provide certain call centre information to the two experts. I met them once and was firstly reasonably shocked that they worked for Telkom and ABSA but was told that I must give my cooperation. They visited the call centre on a Saturday, over the long weekend last month, along with the MD. I could not be present as it was a long weekend and already had prior arrangements. About two weeks ago they presented their findings to the EXCO. I had at that stage and up till today not seen this report as yet.

Last week and Monday I was asked to come and see the MD and found the company IR consultant present. I was informed that the company is restructuring and that they will be downsizing my current position but that they would like to offer me another position in one of the other branches (60 km away from where I worked originally). At this stage they could not provide me with any exact details. The IR consultant did come and see me two hours later and informed and provided me with two choices, i.e. retrenchment or a drop in salary of R 20 000 pm for the position at the other branch. I decided to take the retrenchment package which I must add was calculated correctly. I was asked to leave the same afternoon.

I did however found out this week that the report was presented fully to discredit me and that the CEO made it clear during the EXCO that they must get rid of me. Further, I also found out that the person who worked at Telkom will be replacing me on the 15th of this month. They will change his title to that of call centre manager I believe and I don't believe that he will earn the same salary but he will still be employed on the same management level and will still be part of the divisional EXCO.

I do understand that I did take the retrenchment voluntarily but I do have an issue with the fact that I am being replaced by the very same person, who presented a damaging report against me, not even a month after I left and secondly another concern is that if this report was so factual and damaging why did they not go the performance management or disciplinary route to take the appropriate action against me for poor performance.

So my questions are:

Is there still something that I can do regarding the way my retrenchment was handled and what are the steps if I can?

Also, will my restraint of trade be applicable if I consult in the same field as wherein my previous employer trade?
Submitted: 1 year ago.
Category: South Africa Law
Expert:  WCLawyer replied 1 year ago.
Good day.

This is an info request to assist you better. Please continue on this thread.

So he will do exactly the same work that you did, just under a different title?
Customer: replied 1 year ago.

Yes, he will with a different title

Expert:  WCLawyer replied 1 year ago.
How long ago did you accept this retrenchment package?
Customer: replied 1 year ago.

Last week Tuesday

Expert:  WCLawyer replied 1 year ago.
This is going to be a short answer:

You have, I believe, a case to take to the CCMA for unfair retrenchment. If a company retrenches an employee and the reason they give that employee is that his position is going to be made redundant and a couple of weeks later, they hire someone to do exactly the same work, then they have obviously lied about that reason.

Take away the reason, and it makes the dismissal an unfair dismissal.

I suggest that you approach the CCMA with a view of disclosing a dispute. I would wait until the guy actually starts (if it is going to be within 30 days from last week Tuesday), otherwise, get very clear confirmation from somewhere that this person is going to start at some point in time and do the same work as you.

You would be allowed legal representation at the CCMA should you decide to go this route.

They (the CCMA) could award you an additional award of up to 12 months your salary, but more likely, this is going to be about 4 - 6 months. They could also order your reinstatement, should that be what you are claiming.

I hope this helps you a little bit, but if you have any further questions, feel free to ask them before you rate. It will not cost you anything extra. If you are satisfied with the answer, kindly click on one of the five faces on the ratings page. I don't get anything for this answer unless you do.

Customer: replied 1 year ago.

Just the response I am looking for, thank you. Can you also just answer my original question regarding the restraint a well please?

Expert:  WCLawyer replied 1 year ago.
Apologies.

Generally a speaking, a contract of restraint of trade will, in the absence of factors like fraud and duress, be enforceable even if its terms are unreasonable or unconscionable. Since it is not the function of the court to remake the contract, it will not relieve one party from any term which he or she finds onerous or unexpectedly harsh. But an agreement in restraint of trade may, on the ground of public policy, be unenforceable.
The onus of proving that a restraint of trade is contrary to the public interest and hence unenforceable rests upon the opponent to the restraint. This burden of proof is not easily discharged. In deciding whether or not a contract in restraint of trade is contrary to the public interest, regard should be had to two considerations: agreements freely concluded should be honored, and everyone should be free to enter the business or professional world. An unreasonable restraint oftrade between parties would in general probably also be contrary to the public interest. On the other hand, a restraint which is reasonable between parties might nevertheless, for a reason not peculiar to the parties, be in conflict with the public interest, and possibly also vice versa. Reasonableness is first of all determined with reference to the protectable proprietary interest(s) of the party in whose favour the restraint operates, which interest must have been infringed (actually, or there must at least have been a likelihood of or potential infringement). This interest should then (qualitatively and quantitatively) be weighed up against the interest of the other party (to be economically active and productive). If the latter interest surpasses the former interest, the restraint would as a rule be unreasonable and accordingly unenforceable. An important guideline in the weighing-up process is that the restraint should, as far as activities, area and duration are concerned, be necessary to protect the infringed or threatened interest. Other factors that may also play a part in judging the question of reasonableness, are facets of the public interest which have nothing to do with the relationship between the parties but may nevertheless require that the restraint should (or should not) be maintained, the inequality of bargaining power between the parties, the parties’ own view as to the reasonableness of the restraint, as well as the values underpinning the Constitution. The court will have regard to all the circumstances obtaining at the time when it is asked to enforce the agreement (and not when the agreement was concluded).

The court is not limited to a finding in regard to the contract in restraint of trade as a whole, but may declare the contract partially enforceable or unenforceable. The party seeking partial enforcement must establish a proper basis for such enforcement. In determining whether partial enforcement is justified, the court may take into consideration matters such as whether the restraint was unduly oppressive or designed to terrorize, and whether partial enforcement would not operate too harshly or unfairly towards the party bound by the restraint. An unreasonable restraint will not be partially enforced if it would require major plastic surgery, in the form of a drastic re-casting of its provisions, to make it reasonable. The court is therefore not obliged in all cases to whittle down an unreasonable restraint of trade until it eventually becomes reasonable.

I cannot phathom an instance where a court will uphold a restraint of trade where the employer terminated the employment. It cannot be in the public interest for employers to enter into employment agreements, include restraint of trade agreements and then dismiss the employee through retrenching him (which is a so called "no fault" dismissal) and then be allowed to enforce the restraint.


WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14831
Experience: L.LB (UOVS)
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