The applicant who was employed by the respondent in 2000, retired and drew his retirement benefit in 2008. He remained in the respondent’s employment and was retrenched on 1 April 2013. The respondent paid the applicant 5 weeks’ severance pay and argued that the employee retired when he redeemed the retirement benefit and was re-employed by the respondent subsequent to the withdrawal. The applicant argued that he was in continuous service with the respondent for 23 years and was entitled to 23 weeks’ severance pay.
The commissioner referred to section 84 of the Basic Conditions of Employment Act 75 of 1997 which reads as follows:
“Duration of Employment"
(1) For the purpose of determining the length of an employee’s service with an employer for any provision of this act, previous employment with the same employer must be taken into account if the break between the previous periods of employment is less than one year.
(2) Any payment made or any leave granted in terms of this Act to an employee contemplated in subsection 1 during a previous period of employment must be taken into account in determining the employee’s entitlement to leave or to payment in terms of this Act.”
Based on the respondent’s submission that the applicant retired on or about 26 June 2008 and received a retirement package on or about 21 September 2008; and that the applicant was re-employed subsequent to retirement, the commissioner found that the applicant was never dismissed by the respondent.
As there was no interruption in the service of the applicant in 2008 the commissioner held that the applicant was entitled to 23 weeks’ severance pay less the five weeks already paid.