In these cases, it is up to the state to decide who initiated the separation and to decide whether unemployment benefits should be granted. As we mentioned in our previous blog, the state plays the role of an impartial third party and determines who will receive unemployment benefits and who will not receive it. When the employer has dismissed the employee, the state must check whether the cause of the dismissal is due to bad behaviour during the employment. If bad behaviour during employment is not the cause, the plaintiff is generally compensated. On the back, the state must determine whether the applicant had a valid reason when a former employee is the one who initiated the dismissal. If no reason is found, the state cannot grant unemployment benefits. This view was confirmed by the Schroeder Labour Court and another v Pharmacare Ltd t/a Aspen Pharmacare. The applicants and their employer had terminated the employment relationship by entering into reciprocal separation agreements. The applicants then referred a wrongful dismissal dispute to the Bargaining Board. The arbitrator found that there had been no dismissal with respect to Section 186 of the LRA because his employment had ended by mutual agreement. The arbitrator found that the bargaining board was not competent to review the dispute because of a lack of dismissal. The applicants then went to the labour tribunal to request the cancellation of the agreements.
The termination of an employment contract by contract of mutual dismissal is not a condition that triggers the right to unemployment insurance under Law 4447 on unemployment insurance. Finally, I would like to say that workers must be explicitly informed before reciprocal redundancy agreements have been concluded and that the mutual and common intentions of workers must be demonstrated in order to reduce the risk of further challenge to the invalid effects of the agreement. Reciprocal termination agreements must be concluded in writing and the principle of a “reasonable benefit” must be taken into account with respect to the rights to be granted to the worker. In particular, the granting of certain material benefits, in addition to ordinary legal compensation, is of crucial importance for the presentation of the principle of “reasonable benefit”. Find out what the former employer will tell people when they are called for a reference exam. While it is clear to them that both parties agreed that it was best for you to quit your job, you do not want to appear as a liar if the employer tells another story during the reference exam. Many employers only share a worker`s work data and job title, but there is nothing wrong with asking. If you have signed a separation agreement, these conditions can also be included in the agreement. If there is time left, you can also ensure that these terms are added to the agreement. As an alternative to dismissal or dismissal, both parties who have signed an employment contract may also agree to terminate their employment relationship with a redundancy contract.
This has several advantages for both parties. When an employment contract is terminated for any reason, all unpaid annual leave is paid to the worker in accordance with section 59 of the Labour Act. Note that “cessation” is not a necessary condition for granting paid annual leave.