South Africa Law
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In March 2012, I was employed as a Business Development Manager by a South African owned company, Company A – a mining consultancy (herein after ‘A’), for the purpose of Business Development for this company in Mozambique. My remuneration was set at R100,000.00 per month and was in accordance with my employment contract and agreement. Besides 21 working days leave per annum, I was not given any other benefits. However, it is stated, in my contract of employment, that I will be given ‘accommodation’. Until I had been transferred to Mozambique, I had not received ‘accommodation’, or an allowance for this.
In April 2012, I was transferred to Mozambique, for the agreed purpose as the Business Development Manager, to a sister company, Company B – an engineering consultancy (herein after ‘B’). At that stage, the two companies belonged to the same group of companies, although, they had different names (A and B). The intention was to use the premises of B to perform my duties for A and, at the same time, to promote and develop business for B. This was all in accordance with my employment contract with A.
Due to the Labour Laws and other legal requirements for working in Mozambique, I was “forced” to sign a new employment contract with the registered Mozambican company, now making me an employee of B. This allowed me to apply for, and receive, a work and a residence permit to work and reside in Mozambique. The employment contract was also somewhat changed. The new contract includes a salary of USD 13,100.00 per month, housing allowance of USD 4,000.00 per month (accommodation is very expensive in Mozambique), membership to a Medical Aid Scheme (fully paid by B. I believe the value, at current exchange rates, is approximately R2,500.00 per month), and an extra flight per annum, for personal use, return to South Africa (my previous contract with A included 3 flights per annum and I now get 4).
During the period July to September 2012, our companies went through a merger and all of the companies in our group have since been combined into one company. They now all carry the same name (herein after ‘AB’). However, each ‘branch’, A and B inclusive, still performs its original tasks as prior to the merger.
Due to excessive workload in South Africa and a shortage in staff with my skills, I have recently been recalled, by the mining consultancy branch of AB (originally A), back to South Africa. I have been told that I will no longer receive the benefits that I enjoyed in Mozambique (housing allowance, medical aid, flights, etc) and I will be resuming on my ‘old salary’.
My queries are as follows:
I would appreciate your assistance and advice in the above regard.
Thanking you in advance.
I certainly hope that your "name" does not have any indication to the source of your answers... lol!
My current salary, USD 13,100.00, is the salary that I have been getting since the 9th April 2012. Since the merger this salary, and all of my benefits, have remained unchanged.
I apologise for the delays in my answering, I am being hampered by calls from the boss every no and then.
Ha! Western Cape... I feel "relieved"!
There was never an agreement that I would be returning to Company A from Mozambique. I was led to believe, and this was never attested, that I could settle in Mozambique, which I have.
There is a clause in my employment contract, with the first company, A which states "The Business Development Manager will be required to perform the services hereunder primarily in the Republic of South Africa and Mozambique. The job will be based in the offices of B, in Mozambique".
There is also a clause in my previous employment contract (with Company A) which states "If any of the terms of this agreement, such as rate of remuneration payable to the Business Development Manager, are varied, the other terms shall, unless otherwise agreed in writing, remain in full force and effect"... I am not sure if this clause is relevant to our discussion or not?
I hope I have answered your question correctly.
No. Currently the Mozambique company is not doing too bad, we are actually making reasonable profits and we are meeting targets. I am not aware of any intention to close the company or even to downsize.
As I have explained to the CEO, of the South African company, I am not returning of my own accord but because I am compelled by his recalling me. I would not want to return of my own accord.
No. The company Head Office is in the Netherlands. It is formed from a merger of many companies internationally, in South Africa and in Mozambique. Each branch, Company A (RSA) and Company B (Mozambique) are registered in their respective countries where they are located. For example, Company A is a (PTY) Ltd and Company B is a Limitada.
Yes. Clause 9 in my current contract explains "For any dispute arising from interpretation of the clauses of this contract, the parties now agree, to be mediated by the labour department of the Maputo City. Omissions in this contract will be solved by laws in force in Mozambique". Please note that the wording I have used has been translated from Portuguese (the original language of the contract is Portuguese).
It is accepted by both companies, A and B, I would think it is perhaps an instruction from HO, that I am to return to SA. My questions were concerning my current salary and benefits and if I would have any rights to claim the benefits that I am currently getting... especially concerning the fact that to return is not my choice. The fact that I will have to return, I have come to accept (mostly to ensure that I am still employed) although, I haven't signed any change in employment contract, or an agreement, as I was compelled to do when I started working in Mozambique.
Thank you for assistance.
The request to "terminate" the Mozambican contract has not come from my Mozambican employer but from my previous employer in South Africa. This person visited Mozambique, a few days back, and informed my Mozambican employer (both persons are CEO's) that he is recalling me to South Africa. My Moz employer was not even aware of this intention prior to this visit.
I did not add, in my correspondence between you and I, that my salary is currently being paid by each of the two companies (50% each).
My Moz employer did tell me that if the Moz company could afford to pay my full salary, he would not agree to abide by the demands of company A's CEO.
Yes. That is correct. My current contract is the contract that I got from the Mozambican company.
Thank you. Yes, you are making sense and I do understand. It is obvious now that the Moz company will need to terminate my current contract (hopefully with valid reasons) as I am currently employed by them.
Also, if I understand correctly. Once Moz has terminated my contract, I am actually "jobless" unless I accept the SA contract (possibly on their terms only and without opportunity to negotiate/demand)??
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