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Thread: How to handle a totally untrue allegation at CCMA

  1. #1
    Gold Member IMHO's Avatar
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    How to handle a totally untrue allegation at CCMA

    I am shocked.

    I just got a phone call from a commissioner at CCMA, regarding a lady that I employed for 4 days.

    Background.
    When it became clear to her that she is not capable of doing the job, she picked a fight with my wife. Her behavior was totally insolent and my wife called me to handle the situation. I got the both of them into a room and listened to their story. It became clear that she had an attitude of disrespect towards my wife. I was still explaining to her that with such an attitude we were not going to get anywhere, when she stood up and said that she wanted to resign. I accepted that and told her that she must give it to me in writing, which she did. That happened last Friday. I told her that she could come get the money I owed her for the time she worked, on the next Wednesday. She fetched it yesterday. Today at 16h00 I get a call from the commissioner that she claims I shouted at her and she wants to start proceedings, as she was forced to resign. An appointment was set for this coming Tuesday at 11h00.

    Now, the allegation, according to the commissioner, is that I shouted at her and she therefore was forced to resign, which is totally untrue. During the discussion, I let her state her case and then my wife. I never shouted at her and actually tried to reconcile the two of them, explaining to her that she must show respect to her employer, as she actually was the one starting to shout at my wife during training. When she saw that she will have to change her attitude, she said she will rather resign.

    I never expected this CCMA action and in hindsight, I can only think that she is out to make a quick buck. There is no way that I will settle with her financially, or consider a reinstatement, after her resignation, which she initiated out of her free will.

    The allegation is totally absurd. How do I approach this one? All relevant contracts and paperwork is in place.
    ~Expenses will eat you alive! - My first Boss~

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    Platinum Member sterne.law@gmail.com's Avatar
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    The untruths aside, she only worked for 4 days and, in most circumstances you would be in a position to call it a day anyway.
    Further, a resignation means that the employee resigned because conditions were intolerable.
    4 days is hardly enough time to create an intolerable relationship. Plus, on her own evidence, she resigned because she was shouted at, the courts have always said there is a measure of difficulty and disagreement in any relationship.

    Of course, on paper, you are looking good, but you still required to spend time dealing with this.
    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.

  3. Thank given for this post:

    AndyD (20-Mar-15), Dave A (20-Mar-15)

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    This is a constructive dismissal case. Onus is on the employee to prove the employer made life so difficult the employee had to resign. Very difficult to prove even in very serious cases where there is prima facie evidence. I say very high probability you win this case, if it goes to arbitration. Stick to your story which is nothing but the facts.

    Unnecessary inconvenience for you, unfortunately.

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    Gold Member IMHO's Avatar
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    Steve, it seems like you are saying the courts would frown on me because it happened so quickly? Plus that they would tend to believe the lie? Do I understand you correctly? Conditions were intolerable - is that a reflection on me as employer?

    Sorry, being so close to it, blur my understanding.

    I was only good for this lady and tried to make it work. She is in her 50's and I thought it would be a good investment to train her, as I am not keen on quick staff turnarounds. The training backfired on me and she can not handle criticism, reacting very bad to it. When she resigned, I even told her that is not the outcome I wanted, but she were adamant.

    It seems like someone is guiding her to try to make a quick buck out of me. That after I paid her her full pay plus a bit of overtime, for the hours she worked. That on its own was a total waste to me, but I took the knock and paid her within a few days. ( I lost time, money and effort and I must now start the whole process over again, to employ someone else) I can really not believe she is doing this, making it even worse by telling this story.

    Thanks for answering, both of you.

    It is too easy for people to run to the CCMA with stories. There is no risk to them, costs them nothing and they can only gain by it, if they are lucky. So why not try? This system sucks...

    I objected when the commissioner phoned me and told him she is wasting valuable time, both his and mine. He then gave me a story of he is like a doctor that must look at both healthy and dead people, something like that.
    ~Expenses will eat you alive! - My first Boss~

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    Hi IMHO, have read your last post. Many of us have acted similarly as u have. At the end of the day you have no choice but to present yourself at the CCMA,like it or not, right or wrong.

    The commissioner suggested i offer her some money and get it behind me.i did.

    In your case , for 4 days of employment, stick to your guns and say it like u saying it in your 1st post.

    What you lose out on is the time you spend going there, parking,waiting etc.

    You just have to go through the motions.No other way

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    Diamond Member Justloadit's Avatar
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    I have heard that commissioners are there to arbitrate and attempt to get an immediate resolution if possible to reduce wasted time.

    A friend of mine told me an interesting point, CCMA is part of running a business, simply accept that it is going to happen at some time, and resign to the fact that you are going to waste time going there, but is a necessary evil. Once you accept this, then the process is simply like any other process in a business, it simply has to get done.

    The commissioner's are aware of employees using them as a stick to beat out money from employers, and are there to attempt to get to some closure to any dispute as quickly as possible.
    Prepare a list of questions to ask the ex employee, which will highlight what happened, and bring your wife as a witness, also prepare a list of questions to highlight the situation that occurred, this will add credibility to your side of the story. The fact that she wrote and signed the resignation form, already places you in the winning corner.
    Victor - Knowledge is a blessing or a curse, your current circumstances make you decide!
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    Diamond Member wynn's Avatar
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    So I guess you won't be giving her a glowing reference then?
    "Nobody who has succeeded has not failed along the way"
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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by IMHO View Post
    It is too easy for people to run to the CCMA with stories. There is no risk to them, costs them nothing and they can only gain by it, if they are lucky. So why not try?
    The commissioners have recognised this as a problem for some time already.

    Every SME employer I have spoken to that has had to attend a CCMA conarb in recent times has indicated that they were impressed with the fair treatment they received. It seems they're not gentle on time-wasters and chancers anymore.
    The trouble with opportunity is it normally comes dressed up as work.

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    I am just concerned at the lack of process compliance by the CCMA.

    As part of an employee's referral, the employee must provide evidence that a copy of the referral was delivered to the employer.

    CCMA's process is as follows (from their own website)
    Step 1: If you have a labour problem, it is very important that you take steps immediately. In the case of an unfair dismissal dispute, you have only 30 days from the date on which the dispute arose to open a case, if the case is an unfair labour practice, you have only 90 days and, with discrimination cases, you have six months.

    Step 2: If you have decided to lodge a dispute, you need to complete a CCMA case referral form (also known as LRA Form 7.11.). These forms are available from the CCMA offices, Department of Labour and the CCMA website. (http://www.ccma.org.za).

    Step 3: Once you have completed the form, you need to ensure that a copy is delivered to the other party and you must be able to prove that a copy was sent. Acceptable methods include faxing a copy (keep the fax transmission slip), sending it by registered mail (keep the postal receipt), send it by courier (keep proof) or deliver in person (ask the person receiving it to sign for it).

    Step 4: You do not have to bring the referral form to the CCMA in person. You may also fax the form or post it. Make sure that a copy of the proof that the form had been served on the other party is also enclosed.

    Step 5: The CCMA will inform both parties as to the date, time and venue of the first hearing.

    Step 6: Usually the first meeting is called conciliation. Only the parties, trade union or employers' organisation representatives (if a party to the dispute is a member) and the CCMA commissioner will attend. The purpose of the hearing is to reach an agreement acceptable to both parties. Legal representation is not allowed.

    Step 7: If no agreement is reached, the commissioner will issue a certificate to that effect. Depending on the nature of the dispute, the case may be referred to the CCMA for arbitration or the Labour Court as the next step.

    Step 8: In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as LRA Form 7.13.). A copy must be served on the other party (same as in step 3). Arbitration should be applied for within three months from the date on which the commissioner issued the certificate.

    Step 9: Arbitration is a more formal process and evidence, including witnesses and documents, may be necessary to prove your case. Parties may cross-examine each other. Legal representation may be allowed. The commissioner will make a final and binding decision, called an arbitration award, within 14 days.

    Step 10: If a party does not comply with the arbitration award, it may be made an order of the Labour Court.

    It seems this particular commissioner is playing with a loaded dice.

    Additionally:

    Section 191(5A) makes provision for the Con-arb process, which is a speedier one-stop process of conciliation and arbitration for individual unfair labour practices and unfair dismissals. In effect, this process will allow for conciliation and arbitration to take place as a continuous process on the same day. The process is compulsory in matters relating to-

    dismissals for any reason relating to probation;and
    any unfair labour practice relating to probation.

    If no objection is received, this process may be used for any other dispute (conduct, capacity, continued employment intolerable, less favourable terms after a s197 or s197A transfer, reason for dismissal unknown, or an unfair labour practice).

    This process may not be used for dismissals relating to unprotected strikes. These disputes must be referred to the Labour Court after conciliation has failed at the CCMA.

    The CCMA must give both parties at least 14 days' notice of the hearing date. If a party fails to appear or to be represented, the conciliation will continue on the scheduled date. If the arbitration does not immediately follow the conciliation as set out in the notice, the arbitration must be scheduled either in the presence of both parties at the conciliation or by the CCMA giving 21 days' notice to both parties.

    Objections to the con-arb process

    No objection will be allowed for disputes relating to probation. An employee may object by indicating such on the LRA form 7.11.An employer may object to this process by giving written notice to the CCMA at least 7 days prior to the hearing.

    NOTE: Regardless of the employer objecting to this process, the employer must attend the conciliation.

  12. #10
    Platinum Member sterne.law@gmail.com's Avatar
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    Perhaps some perspective, the person who called may not have been a commissioner.
    Case managers do call and try resolve the issue.
    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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