As of late, Eskom has managed to focus every employers mind on how and why an employee leaves their employ. The troubles emanating from Eskom have shown all of us that one needs to be absolutely positive as to why the employee is leaving and how the employee is leaving. Our employment laws are clear as follows:
- Should an employee resign he or she must put this in writing;
- If the employee is retrenched this must be done in terms of Section 189 of the Labour Relations Act;
- If an employee passes away the proper paper work in terms of the UIF will be completed;
- If the employee is dismissed this will be done in terms of the Basic conditions of Employment Act and the Code of Good Practice; dismissal (Schedule 8 of the Labour Relations Act);
- If the employee leaves by agreement other than a resignation this will be done in terms of a proper negotiation, which will result in a written agreement of voluntary departure.
All of these forms of departure must be reflected in writing and should have enough paperwork and proof to ensure that the employee does not try and challenge this thereafter. It is good practice to always at least have a consultation with the employee before the employees’ departure. These consultations should be minuted and should be attended by at least two other people other than the employee. These minutes of the meeting should be produced and presented to the employee for comment and signature. As of late, we have spent an enormous amount of time at both the Labour Court and the Commission for Conciliation Mediation and Arbitration with employees who have challenged agreements and resignations. Obviously, a resignation can always be challenged by way of a constructive dismissal application. In applications of this nature, the onus of proof lies on the employee but it is still for the employer to be able to challenge it using the paperwork and witnesses. Furthermore, settlement agreements are also being more regularly challenged. These agreements should show that the employee has received more benefit than what he or she was entitled to in law and it should show that the employee fully understood the nature and exigency of the agreement. At least two company witnesses should always be present in these negotiations so that there could be external oral evidence being brought to bear.
The CCMA and the Bargaining Councils (and many times our Labour Court) often try to give the employee the benefit of the doubt and unless the employer can show on an extremely good basis that there was no pressure being brought to bear upon the employee they will lose their case of a constructive dismissal. It is well known that the Labour Court across the country is interfering with settlement agreements and so these need to be iron clad. It is suggested that you consult with Altitude or an attorney to make sure that the agreement is solid in both law and equity.
All the ways of departure do have income tax consequences and UIF claim consequences. Often the Receiver of Revenue challenges the settlement agreements and or the retrenchment agreements. The penalties for disingenuous departure are great.
It must also always be borne in mind that the employer should have one good reason as to why the employee is leaving and it should not be something which is left in the air or to be confused with something else. For instance, a retrenchment is a no fault exercise and to couple this with a disciplinary reason is not acceptable.
Retirement is another issue altogether and must be done in terms of the rules regardless of whether it is early retirement or not.