I am going to be dismissed, advice please.

[newklear]

Hello people

Need some advice on a situation I am in please, will try keep this short and sweet.

Nearly four months ago I started working at a new up and coming advertising company as a developer on a 3 month fixed contract. After my first months working there I was told by both HR and the CIO that I would be made permanent staff after the 3 month period with a increase in salary plus benefits.

The three month contract comes to an end and am handed my full time employment contract but with no increase in salary and as a CTC package. I approached HR the following morning first thing, HR was apologetic and promised that the salary package and benefits would be adjusted accordingly and that I would have the new contract by the end of the day. Two days pass and I haven't heard a thing, we run Exchange at the office so logged in using OWA to see what communication was passed between HR and the CIO, I see the CIO's response that they are prepared to up my salary by R15k but all as a CTC package. By the end of the week (5 days later, I have still not received my new contract), I check via OWA once again and see that HR has told the CIO that I have accepted the contract and signed for it. HR has told a fib, but still patiently wait for my updated employment contract while continuing to work day in, day out.

Last week Wednesday I fall ill and phone in sick, I go see a doctor later in the day and he diagnoses me with the flu virus. I am booked off sick until Friday. Friday comes and I am unable to get out of bed to go to work, feeling like a bus has driven over me. I go through the weekend bed ridden and not feeling any better. I phone in on Monday and say I am still not feeling well, I scan and email my medical certificate through and let them know I will be going back to the doctor and let them know. Tuesday I go see the doctor, I am feeling somewhat better but feeling very lethargic. The doctor diagnoses me with depression and advises me to see a psychologist, prescribes me treatment to begin immediately and explains that due to the new job, long hours, high pressurised enviroment, new house and news of my wife being pregnant that they were probably triggers in my depression. The doctor makes an appointment for me to see a psychologist on Thursday but has booked me off until Friday 19 September 2014.

Today I receive an email from HR stating that I have absconded from work and that I need to appear for a Disciplinary hearing on Monday 22 September 2014. In the letter attached, it states I have "breached my terms of contract", I don't even have my new employment contract let alone signed it. It also states "I am in possession of company property (company laptop) and intellectual property that needs to be handed over at the disciplinary hearing on Monday". I presume that the company intends on dismissing me.

I have been working at the company for 2 weeks minus my sick days off without an employment contract.

Considering the above which I have mentioned, what steps could you advise on please?

 

[w1z4rd]

Why are you reading email not designated for you? Is that even legal?

Also, to take so much time off a new job like that is going to get you into bad books. Toughen up buttercup.

I can offer you no useful advice other than that.

 

[AstroTurf]

Stop spying on your bosses via owa.

 

[Electric]

Did you phone them after the sick period expired?
Or did you just not go back?

And yah, why the f did you spy on their mails?

 

[Merlin]

What record is there of you having worked there? Have you got records of the emails, on YOUR side?

I also worked a few weeks into my new job without paperwork, which is a risk that I silently accepted.

I'm not an expert, but I think you're a bit farked, legally.

At any rate, even if you come right, I'd find somewhere else to go to and move on, briskly. It sounds like a disaster zone...

 

[koeksGHT]

Stop spying on your bosses via owa.

No, just don't get caught.

You will be shocked how they will actually screw you over.

 

[AstroTurf]

No, just don't get caught.

You will be shocked how they will actually screw you over.

My boss has me go into his emails with him present and without him present quite often (sometimes other's emails as well).

 

[House]

Not much you can do. Face the music. Give them what you have and see what the outcome is.

As for intercepting and reading e-mail correspondence between your HR and CIO, you can be charged criminally in terms of the Electronic Communications and Transactions Act and also be dismissed summarily.

 

[semaphore]

My boss doesnt even know how to operate his email, so i always have to go through it

OP - Staying off work no matter how sick, you should have dragged yourself to the office. Yeah sorry you're a tad bit screwed. Why are you depressed your SO is pregnant. If you didnt want a kid you should have taken precautions. :erm:

 

[Alton Turner Blackwood]

Hang on.

Why are you guys saying he's out of luck

Last week Wednesday I fall ill and phone in sick, I go see a doctor later in the day and he diagnoses me with the flu virus. I am booked off sick until Friday. Friday comes and I am unable to get out of bed to go to work, feeling like a bus has driven over me. I go through the weekend bed ridden and not feeling any better. I phone in on Monday and say I am still not feeling well, I scan and email my medical certificate through and let them know I will be going back to the doctor and let them know. Tuesday I go see the doctor, I am feeling somewhat better but feeling very lethargic. The doctor diagnoses me with depression and advises me to see a psychologist, prescribes me treatment to begin immediately and explains that due to the new job, long hours, high pressurised enviroment, new house and news of my wife being pregnant that they were probably triggers in my depression. The doctor makes an appointment for me to see a psychologist on Thursday but has booked me off until Friday 19 September 2014.

I'll be honest, I cannot see a single thing he did incorrectly here^.

Lets, for a minute, forget about him reading their mails.

 

[semaphore]

Hang on.

Why are you guys saying he's out of luck



I'll be honest, I cannot see a single thing he did incorrectly here^.

Lets, for a minute, forget about him reading their mails.

The guys been working for the company for two weeks, he stays off work for the ****ing cold? I work even with my cluster headaches, granted i have a blanket over my head blocking out most light.

 

[AstroTurf]

Hang on.

Why are you guys saying he's out of luck



I'll be honest, I cannot see a single thing he did incorrectly here^.

Lets, for a minute, forget about him reading their mails.

Yea, look he can quite easily say that he was sick as hell and his nerves waiting for a revised contract were not helping.

 

[OrbitalDawn]

The guys been working for the company for two weeks, he stays off work for the ****ing cold? I work even with my cluster headaches, granted i have a blanket over my head blocking out most light.

Flu, not a cold. And going to work while infectious is generally not smiled upon...

 

[Sinbad]

Flu, not a cold. And going to work while infectious is generally not smiled upon...

This. Cluster headaches won't take down the entire department, while that kind of flu will.

 

[semaphore]

Flu, not a cold. And going to work while infectious is generally not smiled upon...

Yes,they're infectious yet people still come to work with them daily, even today there about 2 at work with them.

 

[Cray]

Flu, not a cold. And going to work while infectious is generally not smiled upon...

Yup, people think working with Flu is heroic or something, but most places would rather just you stay home than risk spreading your flu round the office.

 

[TEXTILE GUY]

Firstly - as long as you have evidence of notifying the company that you were booked off - or indeed evidence that you contacted them with an estimated return date, they cant get you for having absconded. It wont fly at CCMA. But - you need the evidence.
To be clear, there is no DEFINED time frame for absconding in the BCEA or LRA - most companies have a 7 day policy.

Secondly, having been at the company longer than the three months in their employ, you could argue on grounds of expectation - ie - there was an expectation of continued employment. Ch 8 - section 186 (b).

Thirdly - the employer needs to bring the signed contract as evidence to the hearing or to the CCMA assuming it goes that far if they want to prove breach.

Finally, the code of good practice in the LRA considers substance and procedure in hearings.
Procedurally, the company is on solid ground IMHO, but the substance of the case is shakey.

You will need to prove they knew that you were going to be off, and they have to prove the breach by showing a signed contract. If you are dismissed and this is a first offence, they may have been unduly harsh in their sanction. If you are dismissed you have 30days from the notification of such to apply to the CCMA - assuming the employer does not have an appeal mechanism.

Good luck.

 

[_Hecate_]

The guys been working for the company for two weeks, he stays off work for the ****ing cold? I work even with my cluster headaches, granted i have a blanket over my head blocking out most light.

Hes been working there four months. I dont think they have any legal right to dismiss him. He had he's sick certificate and called in. The only acceptable thing in this situation would be if he didnt agrue enough sick leave days and he gets unpaid leave for those days.

Sounds fishy! HR hates him!

 

[Shard]

You sound a bit dodge to be honest...

That said you generally require a warning if you're inside permanent employment - BCE covers you for this.

But, your contract is probably a Probation Contract which will carry a clause allowing the company to fire you back into the unemployment pool if they feel like it.
If you have not signed a permanent contract, you still under this, as any contract on expiry will persist its conditions if the relationship remains unchanged.

So if you have one of those, "Either party may terminate the agreement in the first 3 months with no recourse" clauses in your 3 month contract, they can dismiss you, yes.

Oh, and don't pull emails you snooped out as defense, you will royally @#$* yourself.

 

[OrbitalDawn]

Can they dismiss him for absconding when he isn't even legally employed there?

Sounds like someone in HR is being a douche...