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In essence they calculate the severance package on the last payment. If it differs radically such as a commission then you would take the last 3 months into account.
Unfortunately the employee might lose out because of the reduced salary basis, there’s not much you can do about it.
There are literally dozens of factors that need to be taken into account before a court can pronounce on the matter. It is a lengthy and comprehensive exercise that has to be undertaken. The courts normally lean in favour of employment as opposed to independence. It also depends very strongly on how much a person earns.
. In essence there is no question of dual employer ship. If the employee has been placed at the client for more than 3 months and is earning under the threshold they are employed by the client.
. In essence there is no question of dual employer ship. If the employee has been placed at the client for more than 3 months and is earning under the threshold they are employed by the client.
I prefer to disagree with Ingrid in that the first port of call would be the CCMA. Applicants enjoy the same rights as employees.
A suspended employee is still an employee and is able to lodge a grievance. There is nothing standing in their way. You cannot just reject the grievance lodged for that reason alone.
You need to calculate the commissions on the previous three months and on that basis you pay for the sick leave.
My experience has been that the Courts demand all the information that was discussed at the conciliation.
In any event it becomes incredibly difficult to prove that an employee was forced or coerced at the conciliation. The normal practice is to bring in a third party such as a second commissioner to come in and to see that the parties can testify that they were not forced to sign an agreement.
In essence I don’t believe any action can be taken against the individual as he had specifically explained that he felt unwell and he was given a pain tablet. Many pain tablet are soporific in that they contain codeine. A dismissal was much to harsh in this situation.
It is quite clear that he must get three weeks. They have to recognise the previous service. See the basic conditions of employment act. The gap in employment was one day.
The Courts have been absolutely clear. If the company has a zero tolerance policy then the Labour Court made the right decision.
A change to the terms and conditions of a contract must be done after consultation and after the exhaustion of the discussions. If it is not acceptable to an individual employee then the employer would be obliged to go through a retrenchment exercise. In this particular instance it looks like this was unilaterally done and therefore unfair.
