CCMA AND ABSCONTION

[Phil Cooper]

We had a gardener who has worked for us some 14 years. Been fairly reliable in the past.

In June, he developed a boil on his left leg by the knee.

He went to hospital locally, but then reached the conclusion that he had had a curse put on him, and he had to return to Zimbabwe to see the Sangoma to lift the curse.

He took his leave, was due back at work on 6th July.

Silence. NOTHING.

We SMSd him, asking what was happening. He ignored it.

Follow up - also ignored.

Followed up with a wording provided by an HR person who knows legal requirements, stating unless we heard from him by a set date we will take it that he is not coming back, he has absconded, etc.

Ignored.

Then sent next message that he was no longer employed as he has absconded.

His brother, who lives just up the road, then came to us to object to us "firing" his brother. We pointed out that we had not fired him, but he had absconded. Action on his side.

He suddenly re-appears last week, expecting to work for us. Three months later, as near as dammit is to swearing. Told him that we had told him that he had no job, etc. "But I was sick". Yes - but it is your duty to keep us informed, you ignored all the messages. Did you get the messages? Yes, he confirms it. (Brother pitching up also proves it?!

Now we have a Con/Arb hearing scheduled at CCMA.

The Commissioner called me, telling me he is told we have "fired" him.

I told the facts, and his whole attitude changed - almost friendly. He asked, if due to the long service, we would consider making some form of payment. We offerd two months' salary.

Declined by him - he wants about 8 months' salary .....

Hearing date is set - but we are away in the Cape on the date it is set.

Phoned to ask for postponement, to be told "we do not postpose Con Arb hearings",

Then told we could email an objection to the date, and it "may" be considered....

<SIGH>

No wonder we don't want to employ staff...

[Phil Cooper]

Does anyone know the LEGALITIES of a CCMA summons?

I received an SMS stating there is a hearing at 12.00 on 23rd October. NOTHING else.

Hunting through the Web, it says that I must me advised in WRITING of the hearing: the complainant must issue me with a written form, by registered mail, fax or personally serving it, at least 14 days before the hearing.

I have heard NOTHING - is just an SMS legal?

[BusFact]

No wonder we don't want to employ staff...

+1 Phil. A while back our factory could have employed an extra 10 people during a spike in demand we had. No chance were we doing that, because we were pretty sure it was a spike that would turn down after a few months. Instead we turned away orders.

Sorry I can't add any advice on the CCMA legalities.

[Jane123]

I would attend the hearing if you can change your schedule or ask if you can send someone in your place... Am no fundie on HR but I do know that you followed the correct procedure for dismissal. I think the CCMA are obliged to have a hearing because the offer of 2 months salary was declined by your former employee (having it a guess). I would hope that come the hearing, they are just going to rule in your favour based on labour act with no payment being due as you did follow correct procedure and no compensation is due if employee absconds... Good luck!

[BusFact]

http://www.parent24.com/Family/Finance_Legal/Why-you-cant-just-fire-your-domestic-worker-20150930

This is a lengthy article describing a situation similar to the one faced by Phil. It unfortunately does not provide answers or details on the CCMA side of things. It does however elaborate on the ridiculously long and laborious process of what the employer is expected to do. Personally I think its a ridiculous expectation. Imagine if one had to go through this each time you wanted to change plumbers - we'd be drowning in sewerage.

[Dave A]

I have heard NOTHING - is just an SMS legal?

Given that's how you were serving notices to your (ex) employee, probably not the smartest move to challenge the legality of an SMS notice

[sterne.law@gmail.com]

A couple of points.
the SMS from the CCMA is their notifying you of the hearing.
As I understand the employee ha snot served proper notice, therefore there is a challenge there. However, if you do not attend, you would be applying for a rescission. If you attend you could (a) have employee forced to start again (b) settle the issue.
If you do not want to ignore (and apply for rescission) then you need to object to the arbitration commencing after the conciliation (in the event of failure).
You have fired him, because your sms says so. Therefore the challenge is valid to the extent that is he guilty of absconding, there was no hearing.
the common defence is to say ok, he comes back to work 9no payment as NO work NO pay) but is placed in a hearing immediately for AWOl, not contacting etc, etc.

In terms of the date, you write requesting a postponement putting up the proof of the Cape Town trip. Make sure it is submitted at least 7 days before. State that you have received no documentation, the trip was planned and such.
And don't forget the objection to the con/arb


Your sms to the employee are valid. SMS are written communications given the ECT act and evidence amendment act.
In terms of the actual events.
Absconding requires that the employee had no intention of returning.
In other words if an employee is sick, in jail etc, then there is an intention and he cant have absconded.
There are 2 paths of action -
(1) - A hearing for absconding, making all efforts to inform employee. Hearing held in absence
(2) - The employment is suspended, and if employee returns a hearing is held - for AWOl, no procedures (not calling) ect

[Phil Cooper]

Thanks!