CCMA / Labour Lawyer

[Piesank]

But that's my right?
So they're objecting to my right as an employee?

They can't sort it out internally at the grievance process and surely I'm within my right to request CCMA mediate the mediate? I'm they were so adamant that what they'd done and how much of a case they had, they would have no objection to CCMA and mediation?

However, they rather offered me a new position with a different manager ...

Maybe I have missed something.

Why are you going to the CCMA - you said to me that it wasnt for constructive dismissal and now it is "everything else wrong" which is what according to you? That other EE's did not receive warnings for similar misconduct, this swearing thing - which as far as I can remember is a thing you have only recently started talking about and you did not receive a warning for it?

If you did the misconduct which you received a warning for and the ER has had a grievance and mediation session for you and the fact remains that you did the misconduct the warning in all probability will stand

Employees also have rights.

If the company does not follow SOP, where can the emplyee go then?

I'm not sure what SOP you are referring to if it is the minutes of the hearing then the chairman must give his minutes to both parties.
If you have a wage issue you can go to the DoL and if you feel you have been treated unfairly the CCMA/Bargaining counsel.

Just saying an EE has right does not mean anything - what right was infringed?

For what it is worth, I agree with you Dolby. The mere fact that they offered you a position in exchange for you dropping the CCMA thing is.... worrying.

Think about it - if they were "right", and you were a terrible employee, why offer you a new position? Flip you would think they would be doing all they can to get you out. And if you were a terrible employee, then they would have nothing to fear from the CCMA. They could prove how bad you were, that they tried to help you improve, and you were stubborn and obstinate. CCMA would throw the book at you.

What is the latest?

EDIT: Bring the above up (about the witness and refusing to record meetings) up at your CCMA hearing. I bet the CCMA will be very interested to hear things like that, especially if you can get the witness to testify.

I have said earlier - the ER doing that is to cover themselves. 1) it could diffuse the situation between OP and the GM and make the CCMA case go away 2) it shows that they tried to accommodate OP and thus making his constructive dismissal case very hard to prove. . .

My only options are :

1. CCMA - possible 3 or 4 months pay until February. Blip on my CV and good chance I'll be unemployed, as finding a job at the end of the year isn't super easy

2. Accept position in writing - Things should be slow the next few months and it'll buy time. The GM - as you said - still has her agenda, but I think I can buy more payslips this way.

Once I get dismissed, I will take that to CCMA as well after the disciplinary hearing, buying even more time. So, if they come to me January and could only leave March.

OP I hope you are successful with this course of action - from what you have told us it looks like your ER is preparing itself for this eventuality.

Question : Can a company implement new policies without the employees being aware of said policies?

Best practice would be to inform the EEs if it is going to affect their terms and conditions of employment. I always recommend to employers to call the team in and discuss the implemented policy and then put it on a notice board. Otherwise the contract will usually also have a clause that you have to keep up with company procedures and policies.


I have dismissed a manager in the past who received a memo from HO and "forgot to read it and convey it to the staff" and then subsequently gave herself discount on a product.

 

[Dolby]

Why are you going to the CCMA - you said to me that it wasnt for constructive dismissal and now it is "everything else wrong" which is what according to you? That other EE's did not receive warnings for similar misconduct, this swearing thing - which as far as I can remember is a thing you have only recently started talking about and you did not receive a warning for it?.

It is constructive dismissal and they are building case. They do want me out and it is personal. That's all a given - but realistically I know it isn't an easy charge to prove for me and I'm not going forward with constructive dismissal. What I wanted at CCMA is a simple mediation - just a 3rd party to hear us both out. Not referring, but just a neutral party.

There should be no issue with a 3rd party hearing the both of us out and it shouldn't upset them.

I almost get the feeling I'm chatting to the GM ...

 

[Dolby]

If you did the misconduct which you received a warning for and the ER has had a grievance and mediation session for you and the fact remains that you did the misconduct the warning in all probability will stand

But there's the crux - I didn't.

However the grievance and mediation are both internal processes and unfair.

If I felt they were justified because I had done wrong, this thread wouldn't be here and I wouldn't be wasting anyone time.

 

[Piesank]

I almost get the feeling I'm chatting to the GM ...

Look mate, if you think I'm wrong and should butt out all you have to do is say so.
I want more clarity before I can try and help you. This is the first time you have said the CCMA now is for an impartial mediation. Even though I have asked.

You were the one referring to settlements and expected outcomes - I'm just trying to bring your expectations in line with reality.


The commissioner is going to ask you why you are referring the matter and what you would like as the outcome - do you have an answer for that?

 

[Piesank]

But there's the crux - I didn't.

However the grievance and mediation are both internal processes and unfair.

If I felt they were justified because I had done wrong, this thread wouldn't be here and I wouldn't be wasting anyone time.

So you have an issue with receiving the 2nd WW

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

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.'.

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.

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?

Now for clarities sake - did you miss the deadline when you received the FWW?

Your second warning looks to be corrected* from the initial being unprepared after an email to being unprepared after being told to do it at a previous meeting.

*I use the term corrected here in that you issues were lack of date and the email was never there - then they added dates and clarity around the email issue.

Where does the swearing come in and the throwing of the pen?

 

[Dolby]

It's tough to over a forum - hence I wouldn't expect you or anyone to be able to advise fully. Saying that though, I wouldn't make a large scene if I really through I was wrong. Anyhow :

On the official grievance form I put my desired outcome to not report to to GM. If they meet my desired outcome, there is no reason to go further to CCMA.

During the first step chatting with GM manager, there was no outcome and it was said to have another session with a mediator present. I agreed as first prize is moving away from the GM. I chatted to my lawyer and she said great - but let's have another party and not the company labour broker. We drafted and handed the CCMA letter requesting this.

When company recieved it, I was called into the office and only then offered a position away on condition I retract CCMA. I have agreed that I'l cancel when I receive the other offer in writing - which I think is fair. We still, however, had the mediation with the party of their choice ... and he bulldozed me.

 

[Dolby]

So you have an issue with receiving the 2nd WW

Correct. I believe it shouldn't exist, so the FWW shouldn't be a final either. Any dismissal that they may do in future would then be unfair - and I'd run straight to CCMA again. I don't have much to lose if it gets to that stage anyway

Now for clarities sake - did you miss the deadline when you received the FWW?

Correct. I believe I had a valid reason, however. The company just rejected the reason which is understandable as they want to get rid of me anyhow. There is no valid reason.

Your second warning looks to be corrected* from the initial being unprepared after an email to being unprepared after being told to do it at a previous meeting

Correct again.

From something that could be proved to be incorrect (email) to something that couldn't be proved at all (verbal). That comes down to her word against mine. For the records, nothing was given verbally, so a blatant lie made up.

Once the appeal outcome was giving by the consultant who advised them to change, I never received a new warning nor signed anyhthing. I understand that a) I have to be tried on the same charge as in the warning and b) a change like I got, was a new warning and should be treated as such

YWhere does the swearing come in and the throwing of the pen?

As they say it isn't what was said, but rather how. On receiving the 2nd warning from GM (who I didn't report to) it was simply said 'sign - appeal later'. In this session I requested proof of the email, which couldn't be provided. I refused to sign until proof was shown and she refused me to take the letter to my lawyer to see. Things got extremely heated and she then promised me the proof of email the following day after signing. I swore at the situation/ in general on how it was handled. Wrong charge / no date / forced to sign / not allowed to take it out / no investigation done and not prepared to talk to me.

The following day when I received the soft copy, this was added as an observation (not a charge) after I left and signed. On seeing this I sent a mail asking a) asked for the email promised and b) pointed out the observation was not factual. I received a reply stating there was no mail - but she did tell me a few weeks prior. She also said this was factual and I did swear at her.

 

[Piesank]

Okay the last thing I can say in the matter is look what your disciplinary code says - or you can upload it and send me the link via pm and I'll look at it.

Getting a FWW that is only valid for 6 months is light tbh.
Your misconduct could have warranted a FWW in a first offence.

 

[Dolby]

Oh - and last thing, it's not each individual issue but rather collectively over the past 4 months.

 

[Ancalagon]

From something that could be proved to be incorrect (email) to something that couldn't be proved at all (verbal). That comes down to her word against mine. For the records, nothing was given verbally, so a blatant lie made up.

See I don't think you should be able to change a warning after the fact. In fact, I would view this extremely seriously - I hope the CCMA does too.

Its like saying, "You crashed into my car". Then when the accused says, "You don't even own a car?", you say "Oh well I meant you broke my mug."

Two completely different offences, and I don't believe they would be that easy to get confused. If I'm angry with you for failing to follow an instruction or failing to perform, you better believe I'll know exactly why I'm angry, and so will you.

You don't mix things like that up.

As they say it isn't what was said, but rather how. On receiving the 2nd warning from GM (who I didn't report to) it was simply said 'sign - appeal later'. In this session I requested proof of the email, which couldn't be provided. I refused to sign until proof was shown and she refused me to take the letter to my lawyer to see. Things got extremely heated and she then promised me the proof of email the following day after signing. I swore at the situation/ in general on how it was handled. Wrong charge / no date / forced to sign / not allowed to take it out / no investigation done and not prepared to talk to me.

The following day when I received the soft copy, this was added as an observation (not a charge) after I left and signed. On seeing this I sent a mail asking a) asked for the email promised and b) pointed out the observation was not factual. I received a reply stating there was no mail - but she did tell me a few weeks prior. She also said this was factual and I did swear at her.

Piesank disagrees with me, but this is exactly why I think legal representation is helpful. Look, maybe your signature was required to say that you had received the warning, not that you agreed with it. But you did not know this and it was not explained to you. A call to your lawyer might have sorted this out - then again, he might have insisted on coming to your offices and having them explain it to them. I don't think they would have liked that.

I wonder if other companies prevent their employees from having outside legal representation during such meetings, and whether it is legal to do so? Can you sign away your right to legal representation through a contract? I mean, if you look at this from the point of view of the trade unions and government, surely this would open up a lot of employees to abuse? Dolby has resources - he has the Internet and paid for legal advice. But what if I am a labourer on a farm, and my boss tells me I am fired because I pulled that radish up incorrectly?

EDIT:

Also just something to note. The fact that you swore at the situation and then they harped on it, using it as evidence against you. You need to be in careful control over your emotions regarding this. They probably want to put you in a situation where because of your stress and emotion, you will slip again. Maybe really swear at the GM or something.

 

[Dolby]

See I don't think you should be able to change a warning after

Exactly!

When you appeal a charge, you appeal that same charge given. In other words, the appeal is just a second look at the same charge originally issued. I've had two labour consultants agree that it was handled incorrectly. Maybe Piesank can tell us what he feels?

Piesank disagrees with me, but this is exactly why I think legal representation is helpful

My understanding on this is that during an internal hearing, you can't have external representation. However - there is nothing stopping you from either not signing at all or signing the handed document in the following day. Those shouldn't be refused.

The fact that you swore at the situation and then they harped on it, using it as evidence against you

+1

Agreed. I was furious that a company would construct a case and break everything in LRA in order to get what they want. But that said, I've chilled since that first hearing. Anyway - wrong observation anyhow as it is insolence and not insubordination. Shows they have very little clue

 

[1441568916]

This nonsense happens so often its scary. People on this forum think their jobs are all that and a bag of chips.
There is a legal loophole being exploited here, one which has seen family of mine, being let go easily and they got away with it. The CCMA was just a waste of time.

To this end, I am tired now, and I am going to stand up for the underdog against these ****ty companies who think employees are slaves/resources/whatever they can treat any which way they like. Too many businesses think its still 1984 apartheid South Africa and can treat people with disrespect.

Just like everything is out to get the prospective employee I think its time for a similar service, aimed at prospective employees to determine whether a company is worth working for or not. Many of these companies, that treat workers like shyte, often are what I would call "regular customers" at the CCMA.

So next year, I am going to start working on a platform, similar to Experian, i.e. a database of companies in South Africa. The requirements for them to be blacklisted would be a valid CCMA case i.e. proof in the form of the reference numbers issued in the con/arb process. This means that ordinary employees with grudges cannot just blacklist companies. There has to be proof that the employee took them to the CCMA, regardless of the outcome.

The OP can have the pleasure of being the first person to list this miserable company on my database, of course, once these proceedings have been finished.

 

[Piesank]

See I don't think you should be able to change a warning after the fact. In fact, I would view this extremely seriously - I hope the CCMA does too.

Its like saying, "You crashed into my car". Then when the accused says, "You don't even own a car?", you say "Oh well I meant you broke my mug."

Two completely different offences, and I don't believe they would be that easy to get confused. If I'm angry with you for failing to follow an instruction or failing to perform, you better believe I'll know exactly why I'm angry, and so will you.

You don't mix things like that up.



Piesank disagrees with me, but this is exactly why I think legal representation is helpful. Look, maybe your signature was required to say that you had received the warning, not that you agreed with it. But you did not know this and it was not explained to you. A call to your lawyer might have sorted this out - then again, he might have insisted on coming to your offices and having them explain it to them. I don't think they would have liked that.

I wonder if other companies prevent their employees from having outside legal representation during such meetings, and whether it is legal to do so? Can you sign away your right to legal representation through a contract? I mean, if you look at this from the point of view of the trade unions and government, surely this would open up a lot of employees to abuse? Dolby has resources - he has the Internet and paid for legal advice. But what if I am a labourer on a farm, and my boss tells me I am fired because I pulled that radish up incorrectly?

EDIT:

Also just something to note. The fact that you swore at the situation and then they harped on it, using it as evidence against you. You need to be in careful control over your emotions regarding this. They probably want to put you in a situation where because of your stress and emotion, you will slip again. Maybe really swear at the GM or something.

OP can have a shop steward there to represent him if he wants. I would not allow an external party in on private internal matters. The union has access (to a certain extent) and obviously the ER association.

Signing a warning means you have recieved it - not signing it does not mean you did not receive it.

Having the warning changed at the appeal is fair - what if he was charged with unauthorized absence and was gone for 5 days and received a FWW for that and at the appeal he shows that he had a doctor's note that covered 2 days. Then the FWW gets bumped down to a WW, same principal applies.

Swearing at a meeting with the GM even if it was just general swearing is gross disrespect - like swearing in front of customers - no under any circumstances - I've had a customer come and testify at a hearing before where he was aggrieved by the way the EE talked to him even if it was just 'joking' with each other.

 

[ToxicBunny]

OP can have a shop steward there to represent him if he wants. I would not allow an external party in on private internal matters. The union has access (to a certain extent) and obviously the ER association.

Signing a warning means you have recieved it - not signing it does not mean you did not receive it.

Having the warning changed at the appeal is fair - what if he was charged with unauthorized absence and was gone for 5 days and received a FWW for that and at the appeal he shows that he had a doctor's note that covered 2 days. Then the FWW gets bumped down to a WW, same principal applies.

Swearing at a meeting with the GM even if it was just general swearing is gross disrespect - like swearing in front of customers - no under any circumstances - I've had a customer come and testify at a hearing before where he was aggrieved by the way the EE talked to him even if it was just 'joking' with each other.

Forgive me for saying that your example in bold is massively different to what happened to the OP...

The 2 charges are ENTIRELY different.... not just a reworking of the period of the infringement.

 

[Former member 61586]

And yet you still get people who think that unions should be banned.

 

[Piesank]

Forgive me for saying that your example in bold is massively different to what happened to the OP...

The 2 charges are ENTIRELY different.... not just a reworking of the period of the infringement.

What you dont understand is that the misconduct doesnt change. OP arrived for a meeting unprepared according to the ER.
He appealed it and in the appeal it got revealed that there was no email - but there was a meeting where a lackey will 'confirm' that the GM told OP to do it.

So his warning changed from gross negligence to failure to carry out an instruction.

OP is better off with that change - gross means that it is extremely bad.

My example was made to illustrate that if there is mitigating factors the warning changes into the EE's favour. Which is what happened (arguably) in this instance.

If the negligence charge remained there then it would derail the CCMA strat I advised OP via PM

So the lesson here is to use those lemons you get handed.

 

[Dolby]

Having the warning changed at the appeal is fair - what if he was charged with unauthorized absence and was gone for 5 days and received a FWW for that and at the appeal he shows that he had a doctor's note that covered 2 days. Then the FWW gets bumped down to a WW, same principal applies

But that's the same charge in that example - ie both looking at unauthorized absence

They've just changed the severity of the punishment. It's be closer to the FWW being for unauthorized absence and when the note is pulled out, change the charge to missing a deadline, dress code or swearing.

 

[Seriously]

And yet you still get people who think that unions should be banned.

What good do they do?

 

[ToxicBunny]

What you dont understand is that the misconduct doesnt change. OP arrived for a meeting unprepared according to the ER.
He appealed it and in the appeal it got revealed that there was no email - but there was a meeting where a lackey will 'confirm' that the GM told OP to do it.

So his warning changed from gross negligence to failure to carry out an instruction.

OP is better off with that change - gross means that it is extremely bad.

My example was made to illustrate that if there is mitigating factors the warning changes into the EE's favour. Which is what happened (arguably) in this instance.

If the negligence charge remained there then it would derail the CCMA strat I advised OP via PM

So the lesson here is to use those lemons you get handed.

Except of course, the GM lied, and now its on record that she lied initially so the ER and HR people should be dealing with that prior to disciplining the employee?

 

[Piesank]

'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'

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.'

OP read my example again. I said if you are absent for 5 days and only have a valid sick note for 3 of those days. Which happens more times than you think - especially with back dated sick notes and when the EE is required to be back for work on a Thursday and he works weekends.