The Labour Relations Act permits employers to dismiss employees for operational requirements and provides that an employer must pay an employee dismissed for operational requirements “severance pay” equal to at least one week’s remuneration for each completed year of service with that employer.
In the first stage of a retrenchment process, it is acceptable for an employer to offer employees who might otherwise be selected by the employer a sweetened retrenchment package to opt to be one of the selected employees to go first. This is in advance of the employer making the actual and difficult selection of the remaining employees. This is part of the retrenchment process and does not make this first stage of retrenchment into a resignation, which would be a voluntary act of terminating service. It is the first stage of the retrenchment process.
There is no difference in law between “voluntary retrenchment” and “involuntary retrenchment”. The employee has been retrenched.
Questions always arise in connection with the tax treatment of a severance benefit paid by an employer or a retirement fund upon retrenchment. It is important to note that the Income Tax Act does not use the word “retrenchment” at all. The word “retrenchment” is a labour law term.
Although there are no distinctions between “voluntary retrenchment” and “involuntary retrenchment”, the words “qualifying retrenchment” or “non-qualifying” retrenchment” in withdrawal claim forms do make a difference. If the employee owns more than 5percent of the member’s interest or share capital of the company, the employee will not qualify for the more favourable tax table.
The South African Revenue Service taxes retirement benefits on retrenchments as follows:
1. Severance benefit - a lump-sum payment from a person’s employer received on termination of employment on: (a) such person reaching the age of 55; (b) sickness, accident, ill health or incapacity of body or mind; or (c) the employer having ceased to carry on or intending to cease carrying on the trade in respect of which he or she was employed or appointed; or that person having become redundant in consequence of their employer having effected a general reduction in personnel.
2. Retirement fund cash withdrawal benefits on retrenchment will be taxed on the more favourable “retirement table” and not on the “withdrawal table”.
It is important for employers to understand the importance of ticking the correct blocks when completing tax and claim forms, as the incorrect box can have a significant effect on the way the benefits are taxed. The above are merely guidelines, and it is best to consult with a qualified financial adviser who can help make decisions on the available options.
Jenny Gordon is the head of legal at Alexander Forbes Retail.