[Question] Unfair dismissal

[jenine]

Good day all, I am new here so please bear with me if i do anything wrong!!
I would just like to get some advise. I have not been at work for approx 6weeks. The reason for that is medical. At first I couldnt use both my legs and then as time went on it was just the one leg however I couldnt walk and was admitted to hospital twice. They did x-rays, lumberpunches, brainscans took about 28 viles of blood etc..... Anyway eventually I went to fisio the last two weeks and the docter gave me the green light to go to work on monday. In this time I have been in contact with the work about 4 times and I have been in contact with my supervisor all the time through email - so she knows exactly what my current situation is etc.... However today my supervisor emailed me and said that my employment has been ended? Aparently they have send me an absconding letter? I have never received anything from the work neither a call to say this is what they intend to do. I have medical certificates from the very first day I haven't been there till monday the 11th of august. Please tell me if this is the correct procedure and what am I to do. I think this is really unfair because they've known about my situation etc...
Am I now unemployed?

Thank you
Kind regards
Jenine

[Dave A]

First of all, this discussion on absconding employees should give you heart. Based on what you say this does sound, at the very least, unprocedural.

I would try to get written confirmation of the details of your dismissal as soon as possible.

The next important note is that you have 30 days to file a complaint with the CCMA. You probably should do this as soon as possible.

My last suggestion for now really depends on the nature of your relationship with the employer:
As an employer myself, I would personally appreciate an attempt to set up an appointment with the appropriate person within the company (obviously lots of factors as to just who that might be) to discuss the issue. Your supervisor might not be the right person to be dealing with on this.

[jenine]

That was my thought aswell. I will get in touch as soon as possible to find out what the situation is. I just can't believe that they could do this after all it wasn't a case of just staying off work... Thank you for your advise

[Faan]

You may mail me privately giving all the relevant details and then I will ask my wife for her opinion as she works in the IR field. I may add to say that she still has to loose a case at the CCMA whether employer or employee representation
Please feel free to do so

[Kusasa]

unfair dismissal

Your dismissal appears to be both procedurally and substantively unfair. As already advised the first step is to refer the matter to the CCMA within 30 days from date of dismissal. The date of dismissal may be as early as your last day at work, so report NOW, then you can try and resolve amicably. For any further assistance you may send me a private e-mail.

[jenine]

Update

Hi there, thank you all for giving advice etc. I have forwarded this to the ccma so hopefully everything will work out ok. Just to add....I dont think this is correct.
I went to work yesterday and they gave me some letters that they have send through to me apparently I had to pick it up from the post office but I havent received anything to date. This is what they apparently send through.
31 July: Our telephone message on 28 July 2008 refers: (They did not phone me) According to our records you have been absent from the workplace from 22 july until 31 july without authorization or approval. ( I have downloaded my itemised billing and have proof that I phoned in on the 22nd and the 23rd)
You will understand that this situation is causing company disruption and cannot continue indefinitely. We consequently need clarification on your empolyment relationship with us. You are therfore urged to report for duty on or before 8:30 on 1 Aug 2008, or if you are unable to do so, to inform management whether you are physically incapacitated, and also to arrange for proof of your incapacity to be submitted to management.
Should you not report for duty or contact management as instructed, you must understand that your absence and failure to contact management will have certain consequences. We may assume that you elected to desert your position with us and thus terminated the employment relationship from your side.
In the above event you must expressly note that you terminated the relationship on your own accord and that you will have no rights to claim unfair dismissal in any way whatsoever as the relationship was not terminated form the employers side. ( Keep in mind that I havent received this letter until yesterday the 11th Aug)


2nd letter - dated 4 Aug 2008
NOTICE OF TERMINATION OF EMPLOYMENT

Further to my ultimatum to you to return to work by not later than 8:30, on 1 Aug 2008, you have failed to do so.

your continued refusal to tender normal servic when called upon to do so constitutes fundamental breach of contract which entitles the company to terminate the employment relationship.

you are therfor hereby advised that your employment has been terminated with effect from 4 Aug 2008


3rd letter - dated 11 Aug 2008
SUSPENSION FROM DUTY

You are advised that you have been suspended from duty from 8:30 11 Aug until the outcome of a disciplinary hearing. Should you wish to appeal against this suspension your written representation must reach the employer within 24 hours from the 12th of Aug 2008.
During your suspension, you will not be permitted on the company's premisses unless written permission has been given to you by a senior member of management. You will be given a notification of a hearing letter on monday 11th of Aug, which will advise you of the date of the disciplinary hearing.





I really do not understand this:
I have not received any letters from the company before yesterday
Am I not suppose to sign for the letters?
I Phone them the 22nd and 23rd of July - stating that I need to go back to the neurologists.
Can they terminate my employment without a hearing?
As I understand I am no longer working there, so the hearing is just a formality to tell me that?
I have given all my docters letters to the company yesterday, I have proof that I phoned in and I havent received any letters from them until yesterday.
Can they terminate my contract just because I was ill?

Kind regards
Jenine

[Dave A]

They are dead in the water. Apart from non-receipt issues...

You've now got a letter dated 4th August notifying you of termination of employment. Now, in the latest instalment, you are suspended effective 11th August?

If you are no longer employed by them, how can they suspend you?

I'm curious about how the supervisor whom you advised about your cause of absense is going to shape up in all this. From the company's side, it certainly looks rather messy.

[Kusasa]

Unfair dismissal - Oh yeah!!!

The company terminated the employment relationship from their side. Definitely a dismissal. Their first letter is wrong - desertion does not terminate the relationship - only their acceptance of the desertion terminates the relationship, i.e. they dismiss you by accepting your so-called desertion. You were dismissed without notice and without a hearing on 4 August. Their letter of 11 Aug does not exist for practical purposes, as they cannot suspend you from service when you are no longer employed by them. Its simply non-sensical. They have no foot to stand on in the CCMA.

[jenine]

Thank you

Thank you all so much for replying on this post. I had sleepless nights thinking about what I'm going to do now!! But you guys have given me some peace of mind and knowing that I did not desert my position and that I couldnt help the circumstances I feel so much better!

Thank you for all the input it really helps me because I dont know anything about the labour law and reading your posts really put me at ease.

Thank you once again - You are the best

Kind regards
Jenine