Polygraph testing only one employee

UPDATE: She appeared in court, out on R500 bail. Next court case is 22nd March, shes not allowed to contact her boss and the lady that arrived at the office early in the morning.
She received a letter for a disciplinary hearing on 01/03/2012 on two "charges"
1. Theft
2. Lying repeatedly to management
She is not guilty of theft yet, and if she was lying repeatedly they should have confronted her about it??
She did not get her salary yet, her pay date was 25th of this month.
 
That sucks man. Maybe the lying repeatedly is only related to the polygraph test? Remember they will try to fire her on the evidence they have at hand (and it sounds like the other lady is testifying against her). A work disciplinary will set the bar a lot lower than a court of law.

Sorry to hear about the predicament, I can imagine it is now a financial strain on you too.
 
Last edited:
This stinks like a sewage truck spilling its load into a pig farm.

What "evidence" do they have?

Go to your lawyer about her salary. Current disciplinary measures or criminal sanctions are no reason to withold pay for work done. Even if she was guilty, they owe it to her. She did the work, they cant complain.

Also, innocent until proven guilty. Phone them and hammer them.
 
Firstly, they may not withhold her salary.

Secondly, some tips on the disciplinary enquiry.

The chairperson will open proceedings by greeting all present and establishing each person's roles and responsibilities at the enquiry.

He will ask the initiator for the "charge sheet" (the notification sent to your GF). He will read it out in full and then ask your GF if she received it, understands it, the severity of enquiry if she is found guilty and also inform her of her right to representation at the enquiry. She may have a representative from the floor (colleague or shop steward) - no external help. He will ask her how does she plead to the charges against her, to which she would obviously reply "Not guilty".

Once that is all done, the initiator will make an opening statement, basically outlining his case.

Your GF will then be ask to respond with an opening statement, which should be short and to the point, e.g. "I strongly refute the charges against me and am of the opinion that the company is trying to unfairly dismiss me."

While the initiator is presenting his/her case, she must take notes and even ask the chairperson to pause proceedings so that she can remain up to date with her note-taking.

Once the initiator has completed his case, your GF will be given the opportunity to ask questions. Here she can ask about the other lady, why was she the only one polygraphed, who conducted the investigation, what evidence do they have, question ALL the evidence presented, question why some evidence is NOT presented, etc.

Important - be careful here as some companies take shortcuts and end the enquiry here. Your GF must be given the opportunity to present her case. She must tell her version of the events (she should write it down before hand - keeping it short, simple and based on facts). THEN She must remember to refute everything that she disagrees with that the initiator presented to the enquiry. Any statement/opinion not refuted implies that it is a true version of the events.

For example: telling "lies".... she was placed under undue pressure and was basically coerced into making certain statements. As it was the first time that something like this had happened to her, she was extremely nervous and could not think straight, especially while being harassed by company representatives and SAPS.

She should also state very clearly that her lawyer is preparing to sue the company for causing her wrongful arrest.

Once she has finished, the initiator has the right to cross-question her on whatever she has said.

The chairperson will then call a timeout for both sides to present their closing arguments.

The initiator will go all out on attack and accuse her of being the Devil's spawn.

Your GF should keep it short. "I refute everything that the initiator has presented and am not guilty of anything other than being a very nervous person. The initiator has provided nothing but a polygraph test that has not been supported by any evidence and is therefore not permissible. The person that committed the theft is still at large."

The chairperson will then call another timeout to consider the case. This could be 10 minutes or a day.

When she is found not guilty, she should tell the chairperson that the trust relationship has been irreparably broken and that she would prefer to be paid out the balance of her contract (1 month iirc).

Good luck!!

PS. If found guilty it will end very differently, but she must remember that she has the right to appeal (inhouse) and then to appeal to the CCMA.
 
If there is a criminal charge in progress surely the holding of a disciplinary hearing would be sub judice, especially as she is not allowed contact with her boss and the witness?
 
Billy said:
If there is a criminal charge in progress surely the holding of a disciplinary hearing would be sub judice, especially as she is not allowed contact with her boss and the witness?
Click to expand...
True, missed that! Criminal case must precede the disciplinary enquiry. And they still have to pay her...
 
OP please name and shame the company that is trying to do this.

Or would it prejudice the case somehow?
 
I have a feeling the other employee is claiming to be a witness to the crime.

Polygraph alone is not evidence but polygraph + witness and we have whole new monster breeding. Even if innocent, its going to be dam hard to dismiss it. They can claim that the other employee been working there for years and nothing ever got stolen, so on that basis it can not be the other employee.

Sorry to hear about your problem and hope it goes well, unfortunately I have no advice other than stick to your innocence.
 
Elimentals said:
I have a feeling the other employee is claiming to be a witness to the crime.

Polygraph alone is not evidence but polygraph + witness and we have whole new monster breeding. Even if innocent, its going to be dam hard to dismiss it. They can claim that the other employee been working there for years and nothing ever got stolen, so on that basis it can not be the other employee.

Sorry to hear about your problem and hope it goes well, unfortunately I have no advice other than stick to your innocence.
Click to expand...
Unless the witness actually saw her carry out the item that she allegedly stole, then her testimony is irrelevant.

OP:
Monday morning she arrived at the office at 8:30 and she found everything out of place, everything in the kitchen was thrown out. She realized that someone broke into the place. She called cops, and the boss an everything.
But here comes the weird part, another lady that has been working there for a couple of years was apparently there in the morning at around 7:30 and she said when she got there everything was in place and there was nothing wrong.
So now whoever broke into the place did it in 30 minutes, 8 o clock in the morning.
Click to expand...
 
Last edited:
OP, I hope it works out for you guys. You will be surprised how horrible people can get - would not be surprised if the other lady was involved in it, has a good relationship with the boss and is busy trying to sink your girlfriend as a cover-up. I hope that all wrong-doers get what they deserve - good luck!
 
Under no circumstances is an employer allowed to withhold an employee's wages. The employer is in serious breach of contract. It does not matter if a disciplinary or criminal case is process.

Basic Conditions of Employment Act Section 34:

Deductions and other acts concerning remuneration
(1) An employer may not make any deduction from an employee’s remuneration unless—


(a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or


(b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.


(2) A deduction in terms of subsection (1)(a) may be made to reimburse an employer for loss or damage only if—


(a) the loss or damage occurred in the course of employment and was due to the fault of the employee;


(b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made;


(c) the total amount of the debt does not exceed the actual amount of the loss or damage; and


(d) (d) the total deductions from the employee’s remuneration in terms of this subsection do not exceed one-quarter of the employee’s remuneration in money.


(3) A deduction in terms of subsection (1)(a) in respect of any goods purchased by the employee must specify the nature and quantity of the goods.


(4) An employer who deducts an amount from an employee’s remuneration in terms of subsection (1) for payment to another person must pay the amount to the person in accordance with the time period and other requirements specified in the agreement, law, court order or arbitration award.


(5) An employer may not require or permit an employee to—


(a) repay any remuneration except for overpayments previously made by the employer resulting from an error in calculating the employee’s remuneration; or


(b) acknowledge receipt of an amount greater than the remuneration actually received.
Click to expand...
 
Billy said:
If there is a criminal charge in progress surely the holding of a disciplinary hearing would be sub judice, especially as she is not allowed contact with her boss and the witness?
Click to expand...

This ^^


plbartie said:
UPDATE: She appeared in court, out on R500 bail. Next court case is 22nd March, shes not allowed to contact her boss and the lady that arrived at the office early in the morning.
She received a letter for a disciplinary hearing on 01/03/2012 on two "charges"
1. Theft
2. Lying repeatedly to management
She is not guilty of theft yet, and if she was lying repeatedly they should have confronted her about it??
She did not get her salary yet, her pay date was 25th of this month.
Click to expand...

As per above they cannot proceed with the disciplinary as the matter is sub judice. They have to wait for the court case to end before they can proceed with the disciplinary.

They have to pay her her salary, no ifs & buts about it.
 
You can have a disciplinary process/hearing and a criminal case at the same time. The basic principle is that criminal law and labour law are not the same - the case of theft is criminal law and the disciplinary process is a civil matter. You can even be dismissed for theft as gross misconduct at the disciplinary hearing, while being acquitted in the criminal case of theft. The principle of Sub Judice therefore does not apply - the term actually applies to publicizing evidence or statements of witnesses by the media before those have been admitted into court.
 
McRuder said:
You can have a disciplinary process/hearing and a criminal case at the same time. The basic principle is that criminal law and labour law are not the same - the case of theft is criminal law and the disciplinary process is a civil matter. You can even be dismissed for theft as gross misconduct at the disciplinary hearing, while being acquitted in the criminal case of theft. The principle of Sub Judice therefore does not apply - the term actually applies to publicizing evidence or statements of witnesses by the media before those have been admitted into court.
Click to expand...

How come nothing ever happens to these guvament ministers etc until their criminal cases come to an end? They usually get paid for the duration and only get fired after the conclusion of the criminal case?
 
You must log in or register to reply here.
Back
Top
Sign up to the MyBroadband newsletter
X