Unfair dismissal or what?

[xBrightDiamondX]

Okay my CCMA conciliation was this morning, the company representative came very unprepared but never the less we continued. On one stage myself and the company representative were left alone to discuss a settlement, he told me a very interesting thing that i was totally unaware of. He said if we dont settle today, there will be another hearing called Nova or something where everything is scrapped, evidence and testimonies then they do everything over from scratch with new witnesses and testimonies? Can this be true or not?
I refused the settlement of R 5000 and a fresh and clear reference which is a bit of an insult.
At a stage i spent time discussing the settlement alone with the Commissioner and in a way he tried to convince me not to proceed and walk away. Does anyone have an idea on what i should do further? I really need your advice here.

[sterne.law@gmail.com]

Your case will go to arbitration.
Your NOVO is part of a fancy term meaning a new hearing.
You will getcanother chance to settle before the arbitration, this will depend on how strong your case is.

[Citizen X]

You must have been issued with a certificate that states the the matter remains unresolved. Arbitration doesn't happen automatically, you need to apply for it, by filling out the relevant forms, serving them on the employer, take proof of service along with you to the CCMA. An arbitration hearing will then take place.

[xBrightDiamondX]

You must have been issued with a certificate that states the the matter remains unresolved. Arbitration doesn't happen automatically, you need to apply for it, by filling out the relevant forms, serving them on the employer, take proof of service along with you to the CCMA. An arbitration hearing will then take place.

Good morning, the Commissioner only made notes that the matter remains unresolved, the company representative told the commissioner that he will take it further with me in trying to resolve it and come to a settlement. Myself and the company representative exchange numbers and he was supposed to call me with a more decent offer but failed to make contact. I was also not issued with any certificate or any form of documentation whatsoever.
In my first application to the CCMA i did however sign that the case should not be arbitrated in the same day.

[Dave A]

the company representative told the commissioner that he will take it further with me in trying to resolve it and come to a settlement. Myself and the company representative exchange numbers and he was supposed to call me with a more decent offer but failed to make contact.

It seems you are being thoroughly worked over by a master in their craft.

A thought on the "start from new" nature of arbitration nowadays -

I attended last year's round of Labour Law Reports done by Brian Van Zyl where aspects of (I seem to recall it was) Sidumo kept coming up. The primary point to note was that the arbitration starts from new, as already covered above. However, it was when the discussion got into the area of consequences that things got interesting.

One of those consequences, he suggested, is the employer is wasting their time building a huge pile of evidence of substantively fair process and outcome as the vast majority of this time and effort is now worthless at arbitration. Accordingly Van Zyl suggested when it comes to a disciplinary enquiry, you may as well keep the process really simple:
A complainant submits their complaint.
Someone is appointed to decide the complaint.
The employee is given an opportunity to give their response to the complaint.
The person conducting the enquiry makes a decision.
Everyone is notified of the result.
Done.

The point was if the employee isn't satisfied, it goes to arbitration and you have to start from scratch anyway - so don't get overly bogged down in the process first time around.

I found it an interesting notion, and I also couldn't help thinking there may be an impact in this instance too. After all, BrightDiamond is relying to some extent on the (allegedly false) evidence presented at his original enquiry as part of his case.

[Richard S]

Good morning All,
As of 1 March 2016 I sold my business. My wife who had worked in the business for the past 15 years (age 66 - does it make a difference?) - was asked by the new owner if she would like to stay on in a half day position, to which she agreed. There has been no discussion regarding wages and no contract offered.

Unfortunately the new owner and my wife simply did not get on together and after a heated discussion regarding work procedures yesterday, I received the following email (my wife and I share the same email address) , sent at 7.57 pm -Dear Richard, I had a chat to Nikki today it seems that we will not see eye to eye going forward.
She is welcome to collect all her personal items between 11 and 12 tomorrow and hand in "her" office keys to me personally.

Is there any recourse? During the handover period I was asked about salaries and indicated that four employees salaries were due for an annual review in March and made some recommendations. In my wife's case I said that she had been taking home R 15000/month plus cell phone and vehicle running costs and when pressed said that I guessed R 7500 to R 8000 would be fair wage for half days and left it at that. But as I said no amounts were discussed with her.

Fired without being hired - instantly and by email!

[HR Solutions]

You say

There has been no discussion regarding wages

But then you say this:

when pressed said that I guessed R 7500 to R 8000 would be fair wage for half days

So there was a discussion about wages ?? You say "when pressed" .... so clearly they did talk about it, you avoided it and then eventually discussed it.
I would never discuss any wage/salary with a spouse - It really has nothing to do with them - I will only discuss it with the employee directly.

Personally R7500-R8000 is a very good half day wage. Unfortunately you made the mistake not tying down a contract. It is a tricky one when a new owner takes over - are they going to get on with the existing staff ? You sold the business beginning of the month. Clearly they are looking at things differently and realise that certain people will not fit in with their new plans. What you would you like them to do as she really has only worked for them for 3 odd weeks ?

Did she work every half day ?

[sterne.law@gmail.com]

On a sale of business all staff contracts are carried over.
The new owner "steps into the shoes" of the previous owner.
Effectively your wife entered into new terms, but the period of employment is as of the day she commenced.

[Richard S]

Hi HR, the only discussion was a general discussion/recommendation from the outgoing owner to the new owner. My wife was never party to it and no wage offer was made by the new owner. Actually that is incorrect! At some point the new owner told my wife that he could not pay her R 15000/month, to which she replied that she did not expect that for a half day job. In fact she worked about 7 hours a day on average.

Hi Sterne, Regrettably we never bothered with a contract, after all she is my wife.

[sterne.law@gmail.com]

The absence of a written contract is not an obstacle.
The employment relationship is established through the act.

On an aside, it may be the manner that this was done, rather than the financial aspect, that irks.
Often, inretrenchments for example, the underlying issue is the hurt in the manner that things are doen. The employee accepts retrenchments were needed but feel rail roaded and treated disrespectfully and without dignity.