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CAN INVALID DISMISSALS BE RULED UNFAIR?
An employee leaves the employer on the basis of a voluntary retrenchment package agreement. Before the last day of his notice period the employer issues him with a notification of a disciplinary hearing in which all evidence is led before the last day of the employee’s notice period as per the said voluntary retrenchment agreement. Three weeks after the said last day of the employee’s notice period the employee is found guilty and is dismissed. The employer refuses to pay the employee his voluntary retrenchment package. The employee refers a case of unfair dismissal to the CCMA claiming:
1. that the dismissal is unfair because it is invalid and that it is prejudicial to him because the dismissal is on his record at the former employer and thus affects his future job references; and
2. payment of his voluntary retrenchment package on the basis that his employment status should be restored to what it was on the last day of his notice period.
The respondent employer, via a point in limine, argues that the CCMA has no jurisdiction to arbitrate the matter ,and produces a letter signed only by the employer’s CEO extending the employee’s employment beyond the last date of the employee’s original notice period as per the voluntary severance agreement.
Will the respondent’s point in limine succeed?On the facts as presented – no it won’t succeed. The employment relationship terminated on the contractual date of retrenchment. The CEO can’t unilaterally vary the contract by extending it. The employee was still employed on the date on which the VSP became due and payable. So the employer would be contractually obliged to pay it.
However, the wording of the provision in the retrenchment contract apparently reserved the employer’s right to discipline employees for misconduct committed during the notice period. If so, this may produce a different conclusion.
The provision may have made payment of the VSP conditional on the employee refraining from acts of misconduct during the notice period. If so, the finding of guilt after the contractual termination date could be still be valid. This is because the misconduct was committed during the notice period – precisely as the contract anticipated.
This would entitle the employer to withhold payment of the VSP. The entitlement would derive, not from the employment contract, but from the retrenchment agreement. For this reason, there would be no need for the CEO to “extend the employment relationship” beyond the date of retrenchment.
He for the employer could simply enforce the provision in the retrenchment agreement to the effect that payment of the VSP is conditional on the employee refraining from acts of misconduct during the notice period.
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