Lesser Role offered after rejection of Voluntary Severance
In our companies S189(A) process , the employer agrees to offer VSP as an alternative and I applied to be considered for VSP. My application was rejected on the basis of skills retention and I was advised there was a role at a lower level and lower pay level than prior to the S189 , I rejected the role and was advised that They offered me a role which I have declined and thus I must resign and VSP is not applicable .
Respectfully request your advice.
An employer is not duty bound to pay severance pay. If an employee unreasonably rejects an alternative position he loses the right to severance pay. Whether the refusal is unreasonable is a question of fact. If the employee refuses a position similar to the old one, the refusal may be unreasonable. However if the offered position amounts to a demotion and a lower salary the employee’s refusal will probably not be regarded as unreasonable ( Sayles v Tartan Steel CC ( 1999 ) 20 ILJ 647 LC at 654 F – G ). The employee’s personal circumstances plays a great role.
In your case you have not rejected a voluntary severance package ( VSP ). Their attempt to demote you irrespective will constitute an unfair labour practice. Even if you had rejected the VSP, your refusal of alternative employment at a lower level and salary would not likely be unreasonable. Resigning would absolve them of their obligations towards you. My opinion is that they are trying to get rid of you wrongfully. If you refuse to resign and they dismiss you without a VSP, you have a good case to take to the CCMA. For a fuller discussion read this this link from a thesis: https://open.uct.ac.za/bitstream/item/9331/thesis_law_2014_venter_jh.pdf?sequence=1