CCMA / Labour Lawyer

[Dolby]

Find another job and nail them for constructive dismissal or just move on.

Started - bad time of year :/

Also not really qualified in anything, but from next year I want to get something behind me

 

[Former member 61586]

Nope.

This is how and why it happened :

Vendor >>> Distributor >>> Reseller

I work at the distributor and look after a product which I sell to resellers - so I'm the middle man. In February this year, my vendor hired a new person to look after and manage us from a channel side. Two months later, my favourite GM started working at my company. The new person at vendor and our GM have been friends for 12 years ... which is how everything starts.

The two of them had a lunch literally a few days before all of this started in July - so something was said at lunch from the vendor to my GM. My GM has a big ego and winks and says 'don't worry - I'm GM now and he'll go'

What aggravated her was that I hit back at her first verbal warning ... and again ... and again. She can't have a junior person kicking back because, well, she is GM! She has the authority and she will show me who is the boss. It's a huge ego thing and I don't think I've heard the title 'general manager' as much as the last few months.

'I'm GM and I reserve the right!'
'you can't have your GM offer tea!'
'You were unprepared for your GM'
'GM GM GM GM GM GM'

One word describes your GM perfectly. It has four letters. Starts with a "T" and ends with an "F". Middle two letters are "I" and "E".

This is personal. No doubt about it. She hasn't got a professional bone in her body.

 

[midnightcaller]

People in leadership roles have several power bases to tap into.

You GM is using her position power. It's the weakest form of power.

She is most likely in a relationship where her partner is the dominant one. She probably comes to work and try to balance that dominance by using her position power to wield an axe around.

Just my 2 cents.

 

[hellfire]

Nope.

This is how and why it happened :

Vendor >>> Distributor >>> Reseller

I work at the distributor and look after a product which I sell to resellers - so I'm the middle man. In February this year, my vendor hired a new person to look after and manage us from a channel side. Two months later, my favourite GM started working at my company. The new person at vendor and our GM have been friends for 12 years ... which is how everything starts.

The two of them had a lunch literally a few days before all of this started in July - so something was said at lunch from the vendor to my GM. My GM has a big ego and winks and says 'don't worry - I'm GM now and he'll go'

What aggravated her was that I hit back at her first verbal warning ... and again ... and again. She can't have a junior person kicking back because, well, she is GM! She has the authority and she will show me who is the boss. It's a huge ego thing and I don't think I've heard the title 'general manager' as much as the last few months.

'I'm GM and I reserve the right!'
'you can't have your GM offer tea!'
'You were unprepared for your GM'
'GM GM GM GM GM GM'

What could the vendor representative have said?

 

[Piesank]

OP

So you have a FWW for not replying to emails?
Was it classed as negligence or what?

As for constructive dismissal - that must only be taken as a last resort and the onus is on you to prove that you have done everything short of resigning to make things work at the company.

Oh I work as a labour consultant for employers and we have a similar case at the CCMA currently.



To those who say the verbal has expired - that is correct but in the FWW is still valid which is what the chairman/arbitrator will look at in a hearing/arbitration

 

[Dolby]

What could the vendor representative have said?

... that's my hole. I have no idea.

She's new and wants to look like she's doing something right and causing waves, so maybe could have said 'You know, Dolby just doesn't seem the right person. You guys could do much better' and that was followed by 'Well, I'm GM now - leave it with me'

I'm just guessing what the vendor may have said though

 

[The_Unbeliever]

Not lekker.

All of the best.

May you find a new/better job soon!

 

[Dolby]

So you have a FWW for not replying to emails?
Was it classed as negligence or what?

'Misconduct - Failure to adhere to a lawful instruction.'

They're trying to apply progressive discipline. So they're saying had I not had the other two already, this would be a verbal or written.

As for constructive dismissal - that must only be taken as a last resort and the onus is on you to prove that you have done everything short of resigning to make things work at the company

My lawyer said this is difficult to prove, although she can see the tones and types of mails that it is in fact constructive. She said although it is happening, it's tough tto prove.

I mean in one week they asked for a review, gave a warning, asked for figures, asked for a plan, asked for something else in a quest to catch me out BUT - they'll say the GM is allowed to request that information to make business decisions etc.

Oh I work as a labour consultant for employers and we have a similar case at the CCMA currently.


To those who say the verbal has expired - that is correct but in the FWW is still valid which is what the chairman/arbitrator will look at in a hearing/arbitration

True.

The only reason for issuing the 1st and 2nd in quick succession is to be able to give a final that lasts. Again though, can't be proved.

 

[Dolby]

It would be interesting to hear how your case pans out actually.

I started with a fair amount of confidence, but as I realized how they easily they can twist the truth to suit them. As I said above they'll simply say requesting any information is allowed. On missing the email, they've made it out to be a super important email that could have brought the company strategy into question and caused major embarrassment to the GM because it was not received on time.

As for victimization, I can't also can't prove that they treated the other staff differently to me. I can't say with backing proof that no one received a warning. Being within te company I KNOW they treat me different - but how do I prove consistency in the discipline or warnings issued?

 

[Piesank]

It would be interesting to hear how your case pans out actually.

I started with a fair amount of confidence, but as I realized how they easily they can twist the truth to suit them. As I said above they'll simply say requesting any information is allowed. On missing the email, they've made it out to be a super important email that could have brought the company strategy into question and caused major embarrassment to the GM because it was not received on time.

As for victimization, I can't also can't prove that they treated the other staff differently to me. I can't say with backing proof that no one received a warning. Being within te company I KNOW they treat me different - but how do I prove consistency in the discipline or warnings issued?

I have responded to your pm.

Look that employee in my case is going to get nothing - this is after the ER offered her a good settlement at Con and then another settlement pre-Arb.

The problem that employee had was she had a advocate who is drumming in her ears compensation for 12 months, 1 month notice and then another 1 month for something else.

Now she has to pay him for the Con and the Arb and another Arb - our Arb got postponed because the commissioner was taking his sweet time had to do another matter infront of delegates from the UN/ILO.

Bad advice often costs employees - some of the advice in this thread is not good.

Your best bet would probably be to appeal the FWW and say that Misconduct and Negligence are separate matters, but then then again it could be in the same bracket for your disciplinary code. Then write an email to the GM and ask her if she has any issues with you and how can you resolve them, you dont want to lose your job but you are not sure what her expectations are of you.

You have rocked the boat and they have spoken to their labour adviser and now they will probably succeed in getting a dismissal should you not perform your duties in future.

Oh and to prove inconsistency go to your shop steward and ask him/her to find out what warnings other employees have had for similar offenses. If you dont have a shop steward you could ask HR but they will probably say it is confidential.

Dont do anything rash and dont expect huge payouts at the CCMA - your labour lawyer sounds like he/she gave good advice - but if you have to pay them to take it further it may cost you a lot.

 

[Dolby]

Thanks for the reply.

Yea - HR says this hasn't really happened before, ever. No one generally appeals and no one does a grievance, especially against the GM. I have told the employer that I wouldn't do this unless I genuinely believed I am right, as they tell me I'm wasting their time with the appeals because in their eyes, I really am wrong. I also sent this last month to say I'd like work (I believe this could come in handy):

"Although I do disagree with the warnings and the appeal outcome, I wish to move forward together and put this all behind me. I would appreciate the companies support and backing in this manner. Thanks"

I'd be happy with a fair settlement and actually requested in August - but they denied saying they're not trying to get rid of me. However fast forward a few months and now I won't leave without a fair payout.

I've appealed everything, laid the grievance and had the grievance meeting. Everything was in the employer favour though.

 

[Dolby]

I think I mentioned in another post, but this is the main thing for me :

'Gross negligence in that you have arrived unprepared for a meeting with the general manager. This is after an email was sent instructing you what was needed for the meeting. That fact that you have not read this mail is unacceptable'

Two days later when I asked to send the mail, I get this from her :

'So to answer your question, this was not a mail but an actual presentation. Are you saying you didn't even take notes on what to do?'

I appeal and then he says warnings stands, but must be changed to the following

'Failure to adhere to a lawful instruction in that on 04 August 2015 you came unprepared to a brand presentation as discussed on 02 July 2015.'

My arguments :

- On original there was no date, no time, no agenda, no proof offered, no investigation before and no chance to state my side at all
- Warnings should be exact and the warning states a mail and then by her own admission, says no email
- The appeal simply changed the charge to something that cannot be proved ie word against word. You can't keep throwing charges until one sticks
- Nothing has been done since ;no reissue or anything.

 

[Piesank]

'Failure to adhere to a lawful instruction in that on 04 August 2015 you came unprepared to a brand presentation as discussed on 02 July 2015.'

Did this happen?

If yes then then your appeal was heard - they considered your side and changed from gross negligence (which is a more serious form of misconduct) which is good for you.

Then on to the FWW did you do the misconduct?

If yes then they issued you with arguably the correct warning - I use arguably because I dont have your disciplinary code to look through and make a judgement call.

The company's argument is this:
-Dolby didnt come to a meeting prepared
-We issued him with a warning as per our code
-He appealed and upon review we corrected the warning - the misconduct was committed by Dolby the warning was just worded incorrectly
-Dolby then did not respond to a critical email
-We issued him with a FWW as per our code

Keep you nose clean and ride out the FWW - antagonizing the ER further will only convince them that they must get rid of you.

 

[Dolby]

Did this happen?

No, it didn't - it was a made up charge because she realised she couldn't pull up an email. But verbal is something that can't be proved - it's her word against mine. Why go on her word over mine? She's lied already via the email charge.

EDIT : I mean I came unprepared because nothing was said or issued to me, that part is true. But there were no instructions given and 02 July presentation I was present, but nothing said by her.

 

[Piesank]

A follow on from my last thread - but a quick summary.

11 July - Receive a verbal warning for not training the sales staff.

05 August - Receive a written warning for being unprepared for a meeting

27 August - Appeal both the first two warnings. Says letter received for not training is too old and won't look. Changed the charge on the unprepared meeting to verbal instructions give.

21 September - Receive a final written for missing an email deadline

It's extremely clear that this is constructive dismissal and I need to get out. I'm looking for something - but I cannot work like this and I'm left with no option that to leave to avoid.

I'm contemplating CCMA, but it's a little messy. Anyone wife/husband a labour lawyer and I'll pay for a legit session with them?

No, it didn't - it was a made up charge because she realised she couldn't pull up an email. But verbal is something that can't be proved - it's her word against mine. Why go on her word over mine? She's lied already via the email charge.

EDIT : I mean I came unprepared because nothing was said or issued to me, that part is true. But there were no instructions given and 02 July presentation I was present, but nothing said by her.

I guess the meeting was on 2 August?

When your appeal was finalized and you received the amended warning you have 90 days to lodge an unfair labour practice at the CCMA if you did not commit the misconduct.

Verbal can be proved by witnesses - so if they bring somebody who says that you were told/the team were told the commissioner will rule in favour of the ER in this instance.

 

[Dolby]

Nah.

There really was a presentation on 02 July that I did attended. However, there was no verbal instruction given in that presentation on what to do.

She first tried the 'email' approach and then when that failed, decided to make it verbal instruction from a month prior.

And yea, they may do that. They've got a someone to lie once before for her, so they may do that again. No one will stand up against her and assist me because of her title. But I guess there isn't much I can do if someone lies for her

Anyhow - my understanding is that you cannot change a charge in an appeal. You're tried on the same charge as you were given. Granted - they can lessen, but they can't charge ie email to verbal.

Imagine being charged for driving drunk and then when you question, they say 'oops - let's make it speeding then. You were speeding! Or no seat belt! Yes, that's the best'

 

[MickeyD]

Like I said a month or two ago... buckle up and keep your nose clean!

 

[Dolby]

Like I said a month or two ago... buckle up and keep your nose clean!

I have ; it doesn't help.

I mean according to the actual code, if I swear I'm out ... or log onto banking ... or am 5 min late ... or am late for a meeting ... or my phone interrupts a meeting. . Any charge that a normal company overlooks and that is buried deep down in the code that no one even knows about, they'll pull up and use against me. Some arb silly reason.

'According to section 8.11A you contravened the toilet rule by taking more than 5 minutes'

It's very clear that they are going to get me out one or another. They're watching and listening to me like a hawk. Probably monitoring my computer and they have spied around here watching me. They even called someone into HR after chatting to me!

 

[Former member 61586]

I have ; it doesn't help.

I mean according to the actual code, if I swear I'm out ... or log onto banking ... or am 5 min late ... or am late for a meeting ... or my phone interrupts a meeting. . Any charge that a normal company overlooks and that is buried deep down in the code that no one even knows about, they'll pull up and use against me. Some arb silly reason.

'According to section 8.11A you contravened the toilet rule by taking more than 5 minutes'

It's very clear that they are going to get me out one or another. They're watching and listening to me like a hawk. Probably monitoring my computer and they have spied around here watching me. They even called someone into HR after chatting to me!

We all know where this is headed and unfortunately there isn't much you can do about it.

Look for new job until you are eventually fired or asked to leave before firing (so it doesn't appear on your CV). if they fire you before you get a new job, simply buckle down and keep looking. Hope you have some money saved to carry you through a few tough months in case they fire you before you get a new job.

 

[Dolby]

Yea, I do know where this is going.

Great that we have LRA and BCEA to assist a little, but in the end it seems employers know how to work this system in conjunction with labour consultant to protect them. Also doesn't help when employers lie outright. Whether right or wrong, the employee loses.

I enjoy job and the company actually ; I want to work there. That said, I've needed to protect myself and I am currently looking for something.

I can survive a few months, yup