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Mike Otis
Mike Otis, Legal Advisor
Category: South Africa Law
Satisfied Customers: 2161
Experience:  B.Comm; LL.B; LL.M.
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Hi there, I need help please. I started my my current job as

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Hi there, I need help please. I started my my current job as an account manager in January 2013. I am the only account manager reporting into my boss (Sales and Marketing /CEO). During my interview process we discussed sales lifecycle and I was told that the solutions are usually a minimum of 6 months and anything up to 24 months. Last week I was issued with a retrenchment notice. I am the only one being retrenced due to economic operational reasons. My employes says he chose the dedicated sales function. at first, the selection criteria was not clear, then I was given a second notification stating that they are not using LIFO since only sales is affected. they offered me a voluntary package, the difference between the voluntary package and the normal severenc pay is 7 days. then I got offered a retainer of R10000. my current salary is R45000 and I am the sole breadwinner for my children. I know for a fact that it is unfair dismissal, but I dont know how to prove it, can you help
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Customer: replied 3 years ago.

I have not received any responses, please can you try and help me urgently. I have already paid the fee to get a response

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Welcome, and thank you for your question.

It seems that your retrenchment is still pending. Changes are that the employer may have an ulterior motive for dismissing you and is only trying to avoid the consequences by colouring it as a retrenchment.

However, until such time as you are actually dismissed, you will not have a claim for unfair dismissal. Therefore, it is important that you take part in the retrenchment process, however contrived it may be. That way, you can firstly try to avoid being dismissed and, secondly, if you are eventually dismissed, you will be able to show that you had taken part in the "retrenchment" process in good faith and did everything in your power to avoid being dismissed. That way, no fingers can be pointed to you as the reason for being dismissed.

Yours faithfully
Customer: replied 3 years ago.

I was given another notification yesterday of possible retrenchment stating that they are not using the LIFO because sales is the only team affected. The ceo and service delivery manager are husband and wife and if they used LIFO they would have to get rid of their son first who was hired after me. They said they chose me because I am a medium term investment and the others are short term meaning that they are service delivery and the company will be able to use them to invoice customes quickly.their son is not however part of the delivery team. He is in internal support. The other factor is that my salary is too high. When they offered it to me in January,they were expecting projects to land in April this year. I have been told that my last day will be Friday the 30th and have been requested to update CRM as a kind of handover. I still dont have an oddicial letter of retrenchment.s is n

So they have actually already informed you that you are being dismissed without any consultation process on how to avoid retrenchment? If that is the case, you will have a strong case for unfair dismissal at the CCMA.

Yours faithfully
Customer: replied 3 years ago.

There was a "consultation process where I was requested to come up with ideas on how I can keep my job. Then I was offered a voluntary package based on the fact that I will agree to a mutual separation and not sue the company with the CCMA. I rejected the voluntary package, then I was offered a R10 000 retainer (R35000 less than what I am earning) or Commission only contract. On friday, I was told that my last day would be 30 August 2013. The point is My CEO and Service delivery manager are husband and wife. There was an incident between myself and the wife about a month ago where she told me that she didnt "trust" me to do my job. Their son was hired after me, I believe this is why they dont want to follow LIFO, I have not been given official retrenchment notification yet but have been advised that my last day will be this coming Friday

The important thing with the retrenchment process is that it is not just a matter of ticking the boxes, but it must be a meaningful process where every reasonable alternative to retrenchment is considered. The circumstances of your matter appear as if your retrenchment was already a foregone conclusion and the employer merely went through the motions. If that is the case, you would certainly have a basis upon which to refer an unfair dismissal grievance to the CCMA.

In respect of "being advised" that your last day will be on the 30th, I'm not sure what that means, but if you were informed by your employer, whether verbally or in writing that the 30th will be your last day, then you have been dismissed. However, if you do not have a written notice, I would advise you to insist on being given written notice. If not, go to work on the 2nd of September and see what they do. If they turn you away, then it is clear that you have been dismissed.

As far as the criteria for who to retrench is concerned, LIFO is not the only valid criteria. The employer may use any criteria that it can justify under the circumstances. If they do not want to tell you what criteria they used, they will be required to justify their actions at the CCMA.

Yours faithfully
Mike Otis, Legal Advisor
Category: South Africa Law
Satisfied Customers: 2161
Experience: B.Comm; LL.B; LL.M.
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