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    Advice needed

    Background of a case: Dismissed based on misconduct

    Primary issue was identified : Absconded

    On 10th day of Jan 2010 around 10am, while I was busy cleaning my workplace I received a call from Mr. Piet who asks me my where about, I told him I am at the workplace (I stayed on company premises) and he replied that he is on his way to me. On arrival of Mr. Piet and his male companion, greeted and Mr. Piet said to me that Mr. Koos phoned him and told him that he must come to Humansdorp and pick me up, and I must pack all my belongings and take it with me home, to Hankey. I was so shocked and wanted to know why must I pack all my belongings and take it with me to Hankey. I asked Mr. Piet did Mr. Koos give any explanations as to why I must pack all my belongings and take it with me to Hankey, and he replied no explanation was given and I must phone Mr. Koos myself. I immediately tried to phone Mr. Koos on his cell phone but, his phone was on voicemail/off. I then phoned the head office in Port Elizabeth and talked to Mr. Jan, on his cell phone. I told Mr. Jan that Mr. Piet is in Humansdorp on instruction from Mr. Koos to take me to Hankey with all my stuff and I asked him did Mr. Koos mentioned anything to him about this. Mr. Jan replied that I must talk to Mr. Koos personally about this matter. I again tried to get hold of Mr. Koos but without any success. While I was busy trying to get hold of Mr. Koos, Mr. Piet pressured me to pack my stuff because, he, Mr. Piet must take the workplace (where I stayed) and other keys to Mr. Koos’s house. So I was left no choice but to leave the premises. Mr. Piet said to me to pack all my stuff in one of the company’s transport and he (Mr. Piet) will follow me with one of the companies cars to Hankey, were he will collect the company’s transport from me.

    On 11th day of Jan 2010, I tried again to get hold of Mr. Koos but without any success.

    On 12th day of Jan 2010 around 08h30am, I phoned Mr. Koos on his office number and I was inform (by secretary) that Mr. Koos is not in office that day, I then tried Mr. Koos`s cell phone but again without success. I then phone Mr. Jan on his cell phone and he said that he will call me back, he is in a meeting. I waited for Mr. Jan call me back and he didn’t. Later the same day I tried to phone Mr. Koos and Mr. Jan but did not get hold of hem. It was then that it becomes clear to me that Mr. Koos and my employer wanted to get rite of me.

    I then went to the DoL to apply for UIF, and I explained my situation,
    It was only then when it come under my attention, on the UI19 form that I was dismiss. I applied for my UIF and was refer by the Department of Labour to take the matter to the CCMA if I want to, which I consequently did. I went to the CCMA in PE and filed my application for condonation in respect of unfair dismissal. I faxed my application to the company and to CCMA. I received the IN LIMINE RULING which stated that I the applicant deserve to have my claim of unfair dismissal be tested through the CCMA processes.

    I received a fax from the CCMA stating the Conciliation hearing date. The con-arb of this matter took place at the offices of the CCMA. I appeared in person and there was no appearance on behalf of employer. Commissioner telephone Mr. Koos, who said he was attending a bereavement of his family and promised to send his colleague. Mr. Bean arrived at the hearing and stated that he was not involved in the dispute and that without Mr. Koos it will be difficult for him to proceed. He therefore applied for postponement with a tender of that day’s wasted disbursement. This amount was supposed to be deposited in my bank. The matter was postponed.

    The Second arbitration of this matter took place at the offices of the CCMA. I appeared in person and there was no appearance on behalf of employer. The arbitration hearing proceed in default.

    I received a fax from the CCMA, my arbitration award which stated that I was unfairly dismissed and that the employer is ordered to pay me within 14 days from the date of service of the award by the CCMA. The Employer failed to comply with the ruling (Award) and the 14 days lapsed. I was then forced to file an application to certify CCMA award and WRIT of execution. The WRIT of execution was served to the employer by the sheriff of the court, only then,

    The employer applied for a review and there arguing statement is that I have absconded and Koos was under stress treatment and forgot to attend the Arbitration hearings.

    My Question.
    How do I prove that I didn’t absconded but was unfairly and unprocedural dismissed? I am currently unemployed and they know I don’t have money for an attorney to defend the matter as they have instructed their attorney to represent them.

  2. #2
    Diamond Member AndyD's Avatar
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    Why would you have to prove you didn't abscond? Surely at this stage in the game the onus would be for them to prove you did rather than you needing to defend that you didn't?
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    Platinum Member sterne.law@gmail.com's Avatar
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    In terms of a review application proving innocence or guilty is not the issue.
    Review occurs where a party believes that the outcome was reached in improper manner. it differs from appeal. Appeal is related to the actual records and facts where as review can go beyond the record and deals with the process to reach a decision. Irregular procedure, gross misconduct by the commisioner. Common grounds - failure to take evidence into account, to much weight placed on certain evidence, bias, bribery, acting beyond powers (eg awarding 14 months when 12 is the maximum) and such.
    Their allegation of absconding is probably related to the element of the applciation where a party lists the probability of success. If this is the basis of the review application it will be thrown out. It will also count against them that they did not attend. Where there is non attendance one normally applies for recission of an award.
    oppose the review.
    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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    AndyD will you be able to advice me as to how to draw up an notice of apposing and a answering affidavit, see details for info.

    FOUNDING AFFIDAVIT

    I, the undersigned, (The Respondent) do hereby declare under oath and say that:

    1. I, the Respondent ( Gender [adult], address, telephone number and fax number)

    2. I, the Respondent duly authorized to depose to this affidavit and desire the relief more fully set out in the Notice of Motion to which this affidavit is attached, the contents of which are within my (the respondent) personal knowledge and belief, unless the context indicates otherwise and such are to the best of my knowledge and belief true and correct.

    3. The Respondent has appointed the offices of … (his)… Attorneys to be its representative in this matter having offices at... (Attorneys Address, telephone number and fax number).

    4. PARTIES

    4.1 The Applicant is Mr.……., an erstwhile employee of the Applicant with … (address, telephone number and fax number.

    4.2 The Respondent is as stated above.

    5. BACKGROUND TO THE PRESENT APPLICATION

    5.1 The matter was set down for the … (1stHearing date)… at the offices of the CCMA in … (Location).

    5.2 On the …. (1stHearing date) … the Respondent did not appear, however, the Commissioner telephonically contacted Mr. Koos (the respondent rep.) who heads up the Humansdorp operations of the Respondent.

    5.3 Mr. Koos indicated that he would be unable to attend as he was attending a funeral of a family member and instead sent Mr. Bean who requested a postponement and tendered the Applicant’s wasted cost.

    5.4 The matter was once again set down for arbitration on/or about … (2ndHearing date).

    5.5 Once again the Respondent did not attend, however, it would appear that in this instance the Commissioner did not contact the Respondent as he had done on a previous occasion.

    5.6 I (the respondent) was made aware of this set down, however, I (the respondent) confirmed with Mr. Koos whether he would attend on the company’s behalf and he informed me (the respondent) that he would.

    5.7 It would now appear that Mr. Koos had not attended on the CCMA.

    5.8 On the date in question an arbitration award was issued, once again Mr. Koos was requested to attend thereto.

    5.9 Mr. Koos once again indicated that he would do so.

    5.10 On/or about the … (date)… the Sheriff from the High Court in … (location)… attended on the Respondent’s premises to attach removable property belonging to the Respondent.

    5.11 It is only at this stage that it become apparent that Mr. Koos had not attended to this arbitration award as instructed.

    To this extent see annexure “Evidence of the proof of service from the sheriff”


    6. GROUNDS FOR RESCISSION

    6.1. It is submitted that the Respondent had at all times instructed Mr. Koos to assist with this matter as it concerned the Humansdorp branch and that Mr. Koos had failed to do so.

    6.2. It would appear that Mr. Koos had, during this time, gone through a divorce and was under the care and treatment of a psychologist.

    6.3. The Respondent was unaware of the fact that Mr. Koos had been seeing a psychologist.

    To this extent see annexure “Certificate from Mr. Koos Psychologist stating that Mr. Koos is under his care/ treatment for a year”

    6.4. Insofar as the CCMA time limits are concerned, the Honorable Council’s attention is drawn to the fact that an application for the rescission of an arbitration award to be made within 14 days of the party wishing to rescind the award becoming aware of this award or ruling.

    6.5. It is submitted that the rescission is only being brought at this late stage as a result of the Respondent’s bone fide belief that its employee, Mr. Koos, dealt with this matter.

    6.6. It is submitted with respect that the Respondent is not in willful default and had at all material times instructed its employee to represent its interest in this matter.

    6.7. It is further submitted that had the Respondent been aware of Mr. Koos emotional and psychological state it would have attended on the arbitration proceeding itself.

    6.8. It is submitted that the Respondent enjoys prospects of success in properly defending this matter as the Applicant has absconded to and repudiated his contract of employment.

    6.9. It is therefore submitted with respect that the Applicant cannot claim an unfair dismissal as the Applicant on his own instance had terminated his contract of employment.

    6.10. Therefore, it is submitted that the Respondent enjoys proper prospects of success in defending this matter.

    6.11. It is submitted that the Respondent will suffer great prejudice in the event of this award not being rescinded as it will not have an opportunity to state its case with regards to the Application’s conduct leading to the termination of the Applicant’s contract.

    6.12. It is submitted that the Applicant will suffer no prejudice as the award was obtained on the absence of evidence on behalf of the Respondent.

    6.13. The Applicant cannot claim prejudice as his contract come to an end as a result of his actions.

    6.14. I …( the Respondent)… am advice that in terms of Section 144, an arbitration award may be rescinded if such an award/ruling was erroneously sought or erroneously made in the absence of any party effected it.

    6.15. It is submitted that as a result of the inaction by the Respondent’s employee, the Respondent was not in a position to properly state its case before the Honorable Council and as a result, such an award was erroneously granted against the Respondent.

    6.16. The Honorable Commission’s attention is drawn to the fact that disciplinary action will be taken against Mr. Koos as a result of the issues that has transpired.

    WHERE FORE, I … (the respondent)… humbly pray for an order as set in the Notice of Motion.

  5. #5
    Diamond Member AndyD's Avatar
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    Quote Originally Posted by Victim E View Post
    AndyD will you be able to advice me as to how to draw up an notice of apposing and a answering affidavit, see details for info.
    Sorry Victim e, I'm not qualified to advise on any legal issues whatsoever but I'm sure one of the other members will offer you some advice.
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    Platinum Member sterne.law@gmail.com's Avatar
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    Because this is a recission application and not a review, I would not stress too much.
    There is not much taht is going to prevent the commisioner granting a recission. It is a fundamental of our legal system that everyon has a chance to be heard. Seldom will a court or commision over write that. Even though their absenc is due to their own negligience I think they will be given the opportnity to be heard.

    That being said, your opposing reply needs to concentrate on the probability of success, that is that they have no chanc eof being successful.
    The second part of the application must be geared towards getting a costs order. With this amount of negligienc efrom the employer, you should be in good stead to have cost awarded.
    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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