A man had his contract of employment terminated with immediate effect on the ground of redundancy. Some months later, he learned that a new person was employed in his stead.
Should this man have been re-employed by his employer since the vacancy had once again arisen?
Primarily, this person must establish the period of his employment prior to its termination, the reason being that the relative provisions of the Conditions of Employment (Regulation) Act (CERA) provide for the duration of the notice of termination of employment. Such duration depends upon the term of one's employment.
In fact, upon receiving such notice, this person would have the option either of continuing to perform work until the period of notice expires or, at any time during the currency of the period of notice, of requiring his employer to pay him a sum equal to half the wages that would be payable in respect of the unexpired period of notice.
If the employer failed to give him notice, he shall be liable to pay to the employee a sum equal to the wages that would be payable to him in respect of the period of notice.
As regards the man's termination of employment due to redundancy, the law clearly provides that any employee whose employment is terminated on grounds of redundancy shall be entitled to re-employment if the post formerly occupied by him is again available within a year from the date of termination.
However, it would be important to establish whether the new person who has been engaged by the employer has in actual fact been appointed to work in the former employee's place thereby carrying out the same duties the latter carried out.
Another important provision at law which specifically relates to the case in question is that in terms of Section 34 (4) of the CERA, where an employer intends to terminate the employment of an employee on grounds of redundancy, he shall terminate the employment of that person who was engaged last in the class of employment affected by such redundancy. Thus, much depends upon whether the person concerned was in fact the last to be employed by his employer in that particular post which became redundant.
If our reader feels that his dismissal was not justified and moreover could substantiate his position with the fact that somebody else was employed in his stead, he should formally inform the minister responsible of the Department of Labour on his dismissal and request that the minister refer the dispute to the Industrial Tribunal.
Finally, in the event of a favourable outcome for the reader, he shall be entitled to be re-employed with his employer at conditions not less favourable than those to which he would have been entitled if the contract of service relating to him had not been terminated in the first place. If he is in fact re-employed, he shall be deemed, in terms of law, to have continued in his employment notwithstanding the termination of contract on the ground of redundancy.