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Thread: Am I making a Mistake?

  1. #1
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    Am I making a Mistake?

    I need some help.

    Dave Sterne and other HR/IR Consultants.

    I have a Husband/Wife team who were working at a Game Lodge in Olifantshoek, near Upington, as clients. The Lodge is owned by owners (Partnership) who are evading SARS and request the couple/managers open bank accounts for the Lodge in their own names. They refuse to do so and so the partners start a process of constructive dismissal. The female manager (Wife) is pregnant.

    The female manager takes a green landrover, one morning, for a drive on the game lodge. She almost rolls the landrover and the husband (Male Manager) finds the brake fluid pipe is severed.

    The trauma causes the wife to miscarry.

    The partners find that the pair have no reasons to leave. One of the partners enters the lodge one night in a drunken stupor. The partners swears at the managers and tells them to “F*&k Off” and to remove themselves immediately off the premises, including their furniture out of their bungalow.

    The family takes the matter to a Labour Consultant who happens to be acquainted with the partners. He holds the case until the expiry period is over. The matter ends up with me and I make application for an In Limine case. I get it and we end up in CCMA in Kuruman. The Respondents attempt to get the case postponed a day before the hearing. Obviously it fails. They don’t turn up for the case but the commissioner finds that there is a very strong case and allows the CON/ARB to go ahead. Regardless of the lateness of application.

    CON/ARB: November 30, 2009 in Kuruman

    Straight forward case. Not quite.

    I have a Procedure and substance problem. I also have a DOL Jurisdiction – Not paid for one month.

    My claim: 1 Month Salary plus 1 month’s notice plus outstanding leave. I also claim back relocation costs and 6 months for failure to follow procedure.

    I get a phone call Wednesday November 18, 2009 from the managers (another husband/wife team) who took the place of my clients.

    They want me to represent them against the partners. The same procedure followed in dismissing them.

    The difference in the case: They did open a bank account in their names for the lodge. Their salaries were R6000-00 less.

    The wife also took the green landrover on a drive but this time she rolled it. She sustained serious head, body and facial wounds. The partners have her removed from the vehicle without first seeking roadside assistance from qualified medical personnel.

    The husband still rushes his wife, much later, to the nearby hospital. The doctor notes that the swelling is tremendous and states she will be ok. He doesn’t do any examination but keeps her in hospital a few days.

    While she is in hospital the husband is told by the same partners to “F*&k Off” and get his things off the lodge.

    At the same time one of the partner’s attorneys phones the couple and threatens them if they take the case further. He states the partners come from a very influential circle and they can make the couple’s life absolute hell.

    In the meantime I receive a fax from the second partner’s attorney, out of private practice, who threatens me and offers the outstanding salary as final settlement. I refuse and state we will see each other in Kuruman.

    My instructions to the second couple are to make criminal cases against the attorney and partners. I will make application for the CCMA to hear their case. They are also prepared to witness to certain allegations made by the partners against my clients.

    I need more information to handle this case.

  2. #2
    Platinum Member Marq's Avatar
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    I don't know much about the labour side of things but it certainly looks like there should be some criminal charges laid.

    I think a call from your clients to SARS - fraud and corruption hotline on 0800 00 28 70 - should put some things in perspective for these partners as well.
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    Platinum Member sterne.law@gmail.com's Avatar
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    In for a penyy in for a pound. If they want a fight then give them one. Can you separate the cases, That is refer seperately on behalf of the husband and of the wife as . Also I bet even money, they were earning below the threshold and so are owed overtime and public holidays. Many restaurant and hotel employees still think that managers dont get overtime and public holidays. This thinking comes about from when the salary threshold was about R300 to be decalred a manager. I have some hesitancy, without all the facts at disposal about a constructive dismissal. This is the toughest to prove(did they physically resign?) so a straight dismissal - last time I checked F$^%#K OFF pretty much covered the phrase "Youre fired!"

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    Site Caretaker Dave A's Avatar
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    Along an entirely different track - Surely there is also an occupational health and safety question around the landrover. I find it curious that both instances of dismissal come after an accident involving what could be an unroadworthy company vehicle. Are the employers "just" unhappy about the accidents or is there more to it?

    When was it last serviced? Was it repaired after the first accident? Was an investigation of the accident undertaken? Is the employer even registered with the Compensation Commissioner? Were they actually trying to duck paying the injured employee's salary for three months while off work on an IOD claim?

    The non-legal based intimidation by the attorney could be a sign he/she might be uncomfortable with their client's legal prospects. Is it possible something is spooking the owners that to their minds is bigger than an unprocedural dismissal claim?

    Or maybe that's just the way things are done in Kuruman
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    I have separated all the claims. There are total of four in all. Two wives and two husbands. The two attorneys are reeling at the counter attack. The matter has been taken to both Project Justice and the Law Society of SA. Criminal charges have been brought against the partners as well as there attorneys. The landrover had actually been condemned before it was bought by the partners. None of the managers resigned. The partners employ people who are not that bright and who have no clue as to the law and how it works. We are billing the Labour consultant who originally took the case for all losses during the In Limine case. The first attorney has made a better offer. We are at Arbitration on Monday with the first couple.

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