Sign a warning letter?

Yea I won't be found guilty by a neutral party. I've been reading a few cases from CCMA and the charge needs to be quite specific. I saw employees in the wrong but still compensated because the letter was too vague and excluded date/time/venue/agenda . Personally, mine is :

"Unprepared for a meeting after an email with instruction was sent and not read"

Aside from having no date, time or venue, I also received an email a few days later saying 'there is NO email. It was verbal and you should have taken notes. Nothing further will be sent to you' In theory, I should simply show that and as the whole basis of the warning is around a mail, it should be deemed invalid.

When I throw in the fact that I was forced to sign and given no opportunity to present the case, there is nothing correct with the letter either factually or procedurally.
 
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Dolby said:
Yea I won't be found guilty by a neutral party. I've been reading a few cases from CCMA and the charge needs to be quite specific. I saw employees in the wrong but still compensated because the letter was too vague and excluded date/time/venue/agenda . Personally, mine is :

"Unprepared for a meeting after an email with instruction was sent and not read"

Aside from having no date, time or venue, I also received an email a few days later saying 'there is NO email. It was verbal and you should have taken notes. Nothing further will be sent to you' In theory, I should simply show that and as the whole basis of the warning is around a mail, it should be deemed invalid.

When I throw in the fact that I was forced to sign and given no opportunity to present the case, there is nothing correct with the letter either factually or procedurally.
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Please just get the advice of a labour lawyer, or even better, get one to attend.

Despite having the facts on your side, I have a feeling that they will railroad you into guilty.

Besides which, once you win, I think there must be a way to have it declared that the invalid warning constitutes harrassment.
 
The advice given above is good, going this alone is risky, SEESA ( which I use ) are professionals they may well be largely impartial, but rely on what they are told by employer, and ultimately act for and are paid by employer.
The saying "well begun is halfway done" is valid as a small misstep from your side at this point could sink you later.
 
They say this is not a hearing with SEESA and just a chat. Though, this is from HR so I'm not sure
 
Dolby said:
They say this is not a hearing with SEESA and just a chat. Though, this is from HR so I'm not sure
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Dude get some pro advice. Can't hurt. Don't see any fairness unless it's ccma. You have the facts but they have the power. Their stick is bigger than yours.
 
Tell them your lawyer will sit in on the chat . And tell them you going to record meeting.
 
A company hired by another company to be "impartial" simply will ALWAYS be biased in favour of the company paying them. That is common sense no?
 
The above is valid, this is no friendly off the record chat between old mates, you will be in a snake pit and they will try and trap you or at worst lie about what you said; have a witness if possible, and remain Calm and say little to nothing, the one can / will act as witness to the other against you. Sadly this is extremely serious, it may prove kindly, but I doubt it.
 
MickeyD said:
Not going to happen.

This is still an inhouse process. He can only be represented by his union rep or a fellow staff member.
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Why?

Surely if the process is biased and unfair to begin with, he can refuse to take part in it without legal representation?

I'd definitely get legal advice even if the lawyer is not allowed to attend.
 
MickeyD said:
Not going to happen.

This is still an inhouse process. He can only be represented by his union rep or a fellow staff member.
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This is a common misconception. Case law suggests legal representation may be allowed in certain circumstances. See Molope vs Commissioner Mbha and others 2005.

Consider a case of an employee (Maybe OP) who has no one internally to represent him : I have no doubt, if an employer refuses such employee external representation then any dismissal resulting from that hearing will be procedurally unfair.
 
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desiganp said:
This is a common misconception. Case law suggests legal representation may be allowed in certain circumstances. See Molope vs Commissioner Mbha and others 2005.

Consider a case of an employee (Maybe OP) who has no one internally to represent him : I have no doubt, if an employer refuses such employee external representation then any dismissal resulting from that hearing will be procedurally unfair.
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https://regsdienste.solidariteit.co.za/regsvrae/what-are-the-labour-act-provisions/
To answer the question fully it is important to distinguish between representation and legal representation. Any person against whom disciplinary action is taken, is entitled to representation to comply with the audi alterem partem rule (“listen to the other side”). In the case Molope v Commissioner Mbha & others (2005) 26 ILJ 283 (LC) the Labour Court once again confirmed that the employee is entitled to representation and that it is not an allowance by the employer. A disciplinary hearing is an internal investigation and the accused is therefore entitled to internal representation. Section 4 of Schedule 8 of the Labour Relations Act determines that a person who is disciplined, is entitled to support by a shop steward or a co-worker. In spite of the provisions of Schedule 8, the employer’s disciplinary code usually determines who could represent an accused. The conditions of the code may not be less favourable than that of Schedule 8. At employers where trade unions are recognised as bargaining agents, collective agreements are usually entered into to address the matter of representation. Once again the conditions of an agreement may not be less favourable than the provision of Schedule 8.

Legal representation is a person who practises as an attorney or advocate. As mentioned an employee is only entitled to internal representation, but such person is only entitled to external legal representation by an advocate, attorney or consultant if:

the employer’s disciplinary code makes provision for it;
the employee’s service contract makes provision for it;
both parties agree to it; or
after submission of an application by the accused and if the presiding officer allows it.
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I've had the misfortune to have chaired several dismissal cases over the last 10+ years. Also had to be the initiator in a few cases involving my own staff... neither is pleasant and both are very stressful. If I'm out of date with current enquiry proceedings it will be whatever has changed in the last two years.

Only in very exceptional cases will external representation be permitted and the OP's case does not qualify. Firstly because it is not an enquiry... he has not been served with proper notification of a disciplinary enquiry, as the notice would have very clearly stated the charge, his rights, possible outcomes (including dismissal), etc.

PS. Unless I missed it the OP did not mention the term "Misconduct" on any documentation he has received.
 
Dolby said:
They're saying what MickeyD is saying ; no representation other than internal because at this stage, in house process
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Can you get internal representation?

In any case, I would say the following:

Do not sign anything other than an attendance register.
Inform the parties present that you will be recording the conversation, and then record it.
Bring hard copies of all relevant emails to the meeting
Maybe its a good idea to ask them what the possible outcomes are of the meeting, before it begins. In other words, ask them if it could lead to dismissal. Also ask them about the appeal process, if any. But make sure this part is recorded.
 
Ancalagon said:
Can you get internal representation?

In any case, I would say the following:

Do not sign anything other than an attendance register.
Inform the parties present that you will be recording the conversation, and then record it.
Bring hard copies of all relevant emails to the meeting
*** Ask "What is the purpose of this meeting?"
Maybe its a good idea to ask them what the possible outcomes are of the meeting, before it begins. In other words, ask them if it could lead to dismissal. Also ask them about the appeal process, if any. But make sure this part is recorded.
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Agree and I'll add one: ***

If the reply has any mention of "disciplinary" or "enquiry" or "Labour Relations Act" in it, then inform the chairperson that the meeting has been initiated under false pretenses as you have not received proper notification thereof.
 
So when is the meeting taking place? I have been following this thread with interest and rooting for Dolby all the way. Please let us know soonest so we can hold thumbs for you.
 
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