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Thread: Victimisation

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    Victimisation

    Hi

    An employee who had a disciplinary hearing and was recommended for a final warning, appealed. He did not come to the scheduled appeal hearing because he said he is feeling sick and goes to the doctor. However we got a CCMA form faxed the same morning that he wants the final warning removed (unfair labour practice and disciplinary action). A labour practicioner which he appointed wrote a letter that we have victimised him after his review in June and that we are working towards constructive dismissal.

    However we found out via the employee's private email messages, which are stored on the company's laptop, that he applied for a job already in April, which was 2 months before his review, which was not very favourable for him.

    Can we use these emails as proof that he anyway wanted to leave and that he is now using victimisation and contructive dismissal only to let us look bad at the CCMA hearing?

    Regards Renate

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    Diamond Member adrianh's Avatar
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    Quote Originally Posted by renate109 View Post
    However we found out via the employee's private email messages...
    I don't think that you had any right to go scratching around in there.

    I also think that they are separate issues.The fact that he was looking for another job makes no difference to him claiming you were victimizing him. All he would say is that he was forced to look for another job due to the negative climate in the workplace. I further think that most people keep their feelers out all the time in case a better opportunity presents itself, there is nothing wrong with doing so. Doing so doesn't prove that one is planning to leave, and if he was planning to leave he has the right to do so.
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    Diamond Member adrianh's Avatar
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    Bronze Member Brett Nortje's Avatar
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    Quote Originally Posted by renate109 View Post
    Hi

    An employee who had a disciplinary hearing and was recommended for a final warning, appealed. He did not come to the scheduled appeal hearing because he said he is feeling sick and goes to the doctor. However we got a CCMA form faxed the same morning that he wants the final warning removed (unfair labour practice and disciplinary action). A labour practicioner which he appointed wrote a letter that we have victimised him after his review in June and that we are working towards constructive dismissal.

    However we found out via the employee's private email messages, which are stored on the company's laptop, that he applied for a job already in April, which was 2 months before his review, which was not very favourable for him.

    Can we use these emails as proof that he anyway wanted to leave and that he is now using victimisation and contructive dismissal only to let us look bad at the CCMA hearing?

    Regards Renate
    I think he is more worried about keeping his job. without you as a reference, what has he been doing with the time they might ask him. if you want him to keep working for you, simply put him under 'administration,' where he gets to earn less while he gets his position assessed?

    Of course, if the employee is wanting a big package, that might be a problem, but if he has been working for you for a long time, then his back pay is nearly nothing, as it was his first paycheck, and the package is only for a few months.

    Of course, if you prove that he was not doing his best for the company, then he is a liability that would cost the company valuable man hours. if you were to prove that he was merely 'tilling around,' well, that is not work - he is merely there, yes?

    am not sure if you could get that into a law case, but maybe it is worth a try?
    !! Going to my destruction !!

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    Quote Originally Posted by renate109 View Post
    However we found out via the employee's private email messages, which are stored on the company's laptop, that he applied for a job already in April, which was 2 months before his review, which was not very favourable for him.

    Can we use these emails as proof that he anyway wanted to leave and that he is now using victimisation and contructive dismissal only to let us look bad at the CCMA hearing?

    Regards Renate
    I think you will be opening yourselves up to all kind of legal action if you admit that you were accessing his private email.

    Looking for another job does not warrant any disciplinary action from the current employer. This might look like a "personal vendetta" at a CCMA hearing, which might be costly at the end.

    Rather focus on his current performance and follow the disciplinary procedures.

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    Platinum Member sterne.law@gmail.com's Avatar
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    What was the final warning for?
    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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    Full Member Electrode's Avatar
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    I am sure someone may have interacted with the employee prior to the disciplinary hearing or review. This may have prompted the employee to seek employment elsewhere. It may not be appropriate to use these emails in a hearing setting. What it shows is that the employee knew that a dismissal was imminent. It is possible that the employee overreacted. To my understanding you cannot discipline someone for looking at other employment options. You could give the employee a verbal warning not to use company time and facilities but it is hardly a dismissible offence.

    Quote Originally Posted by renate109 View Post
    we found out via the employee's private email messages, which are stored on the company's laptop, that he applied for a job already in April, which was 2 months before his review, which was not very favourable for him.
    Can it be possible that the employee was aware of the unfavorable outcome before the date of the review?
    DISCLAIMER - The above does not constitute to legal advice or formal advice in any manner or form

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    Site Caretaker Dave A's Avatar
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    You have to guard against conflating issues. The key to unravelling seeming complicated matters is separating the issues as much as possible.

    Quote Originally Posted by renate109 View Post
    An employee who had a disciplinary hearing and was recommended for a final warning, appealed. He did not come to the scheduled appeal hearing because...
    Why are you holding an appeal hearing that requires the attendance of the appellant? The basis for the appeal should be set out in the appeal and adjudicated on its merits.

    Quote Originally Posted by renate109 View Post
    He did not come to the scheduled appeal hearing because he said he is feeling sick and goes to the doctor.
    I suggest deal with this separately under normal attendance rule procedures first. This will help inform any potential consequences i.r.o. attending the hearing.

    Quote Originally Posted by renate109 View Post
    However we got a CCMA form faxed the same morning that he wants the final warning removed (unfair labour practice and disciplinary action).
    The employee is entitled to take up the matter through the CCMA. Invoking one's right to take a dispute to the CCMA seems premature as there is still the outcome of the appeal to be given, but if you are not going to amend the finding, there seems little sense in delaying the inevitable by pointing this out at this stage.

    Quote Originally Posted by renate109 View Post
    A labour practicioner which he appointed wrote a letter that we have victimised him after his review in June and that we are working towards constructive dismissal.
    The onus is going to rest on the employee to prove that allegation as true on balance of probabilities. That should be a lot easier said than done, particularly if it is untrue.

    Quote Originally Posted by renate109 View Post
    However we found out via the employee's private email messages, which are stored on the company's laptop...
    Do you have a policy in place that deals with this?

    Quote Originally Posted by renate109 View Post
    Can we use these emails as proof that he anyway wanted to leave and that he is now using victimisation and contructive dismissal only to let us look bad at the CCMA hearing?
    I think Sakkie covered the problem here already - it helps add credence to an allegation of victimisation. I suggest you should only use this point as a counter-argument in the event that the employee introduces your knowledge of the emails as part of their evidence.

    The good news is that there is no dismissal at this point, so when it comes to awards (if it comes to that), the worst bullet you need to avoid stepping in front of right now is an adverse award on costs.
    The trouble with opportunity is it normally comes dressed up as work.

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