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Thread: Is it required for a Chairperson to be "Ethical"

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    Bronze Member JanChris's Avatar
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    Is it required for a Chairperson to be "Ethical"

    Hi, some time ago during a disciplinary enquiry, I was representing (Complainant) the company. When the chairperson had completed the investigation and before this person gave a decision, I was asked if I want to have the accused dismissed. Is this common practice for "independant chairpersons" or are they concerned that they will not get any further business from companies that use there services?

    What is the procedure when a senior staff member fabricates a case against an employee to dismiss that employee? While another employee is found to have made a grave mistake but it was ignored and no action was taken. The scary side of it is, I have proof of this person's misconduct.

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    Platinum Member sterne.law@gmail.com's Avatar
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    The complainant ordinarily indicates what result he wants, final warning, dismissal etc. An indication of how severe the company views the conduct.

    Consistency in sanctions is vital.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Bronze Member JanChris's Avatar
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    Hi, I understand that an indication of the "punishment" can be asked for in the complainants statement. But is it not up to the chairperson to decide a sentence as outlined in the labour act. Any comment on my other statements?

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    Platinum Member sterne.law@gmail.com's Avatar
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    The chairperson had not necessarily made up his mind.
    the choice of words may have been wrong, it is best to ask 'What does the company seek as sanction, IN THE EVENT, that I find the employee guilty."

    Fabrication of a case is clearly wrong. The way forward is a question of morals more than law.
    Either it can be taken to higher management, or you could be a witness for the employee.

    If a company fails to take action, an employee could lodge a grievance, or a union may take up the cudgels.
    The second side, is that if an employee is disciplined for similar misconduct they can raise as a defence, the inconsistency
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Platinum Member sterne.law@gmail.com's Avatar
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    Given your other post (high profile cases) thebtwo are clearly related.
    If I understand, you reported fraudulent and dangerous work, the company pit you in a hearing, made up evidence and you were dismissed. Possibly the chairman was biased.
    The key question is how long ago did this happen?
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Bronze Member JanChris's Avatar
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    Thanks for the response, it happened 9 months ago. Either way, I would have to challenge the MD in this case and you can think what the outcome would be. Big labour law institutions would "maybe" take up the investigation but these companies use "small" third party companies to chair the enquiries.

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    Platinum Member sterne.law@gmail.com's Avatar
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    Dismissals need to be referred and challenged within 30 days. However you can apply for condonation, showing cause for the failure to refer in time.
    With regards to who chairs, it's immaterial, no chairman is going to say, I was told to find guilty.
    What it boils down to, is what evidence can you put together to show your case. That's important in terms of winning and the condonation.
    Whilst 9 months is a long time, showing good chance of success is a big factor in determining whether to grant condonation.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Bronze Member JanChris's Avatar
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    Quote Originally Posted by sterne.law@gmail.com View Post
    Dismissals need to be referred and challenged within 30 days. However you can apply for condonation, showing cause for the failure to refer in time.
    With regards to who chairs, it's immaterial, no chairman is going to say, I was told to find guilty.
    What it boils down to, is what evidence can you put together to show your case. That's important in terms of winning and the condonation.
    Whilst 9 months is a long time, showing good chance of success is a big factor in determining whether to grant condonation.
    Anthony, I disagree with you about the Chairperson not being told in advance what the outcome should be. Not all is done in a correct and fair manner. I would love to believe that all chairpersons act in a honourable manner. It clearly states in the labour law that the system/rules should be used as corrective action and not just find ways to dismiss a member.
    Last edited by JanChris; 15-May-14 at 12:25 PM.

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    Platinum Member sterne.law@gmail.com's Avatar
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    I never said that chairperson are not told or agree to a pre determined outcome. What I said is that, in terms of litigation or CCMA referral, it is most unlikely that the chairperson will become a witness and say, yes I was told to do a dismissal.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by JanChris View Post
    But is it not up to the chairperson to decide a sentence as outlined in the labour act.
    The chairperson of the disciplinary only makes a recommendation.

    Quote Originally Posted by JanChris View Post
    What is the procedure when a senior staff member fabricates a case against an employee to dismiss that employee? While another employee is found to have made a grave mistake but it was ignored and no action was taken. The scary side of it is, I have proof of this person's misconduct.
    No-one can adjudicate on evidence that isn't led.

    The issue of a company only selectively pursuing a disciplinary enquiry can get interesting though. I've chaired a few where the employee's representative attempted to raise this as a defence. It often leads to a lot of tap-dancing from management, but in my experience the employee side doesn't normally know enough detail to press the issue home. Management just has to show some "compelling aspect where that instance was different" that the employee side can't break down and that's the end of it as a line of defence.
    The trouble with opportunity is it normally comes dressed up as work.

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