Employee Dismissed after accused of absconding

[TDon]

Hi All,

Ok so here's what I would like advice on:

An employee (an assistance retail manager) applied 2 months in advance for +- 11 days leave, for wedding and honeymoon. The branch manager kept saying "yes, it's fine, I'll sign it, I'll sign it" and never did. The employee (in the wrong obviously for not dotting his T's) believed the branch manager and went on leave.

Upon returning to work as normal after being away, he was told that a registered letter was sent to last known address telling the employee that he is absconding and there will be disciplinary action when he returns. The employee did not receive the letter - he moved house and did not update the records (also employees fault). There were no phone calls made or any other forms of communication.

The employee tried to verbally say upon hearing this that it's complete nonsense. And tried to argue that the branch manager had agreed to sign the leave form, but as there was no proof (the branch manager must have thrown away the leave form) there was nothing that the employee could do.
A hearing was scheduled but had to be postponed because the employee was told to attend training that week (training paid for by the employer for the employee to become a branch manager) After that week of training, the hearing took place and after another week the findings were that the employee was guilty of absconding and he was dismissed immediately for absconding.

The employee, not being too clued up on labour law and thinking he didn't stand a chance, did not fight back. But now, upon gaining some knowledge, wants to take the employer to the CCMA.

What I would like to know is: Does the employee stand a chance if he takes the employer to CCMA?
Also, is it right to make an employee work / go for the training while waiting for the hearing date?

[Greig Whitton]

What I would like to know is: Does the employee stand a chance if he takes the employer to CCMA?

Based solely on what you have posted, I'd say the employee has an excellent chance.

Also, is it right to make an employee work / go for the training while waiting for the hearing date?

Yes. Usually you would only suspend an employee from work if their hearing concerns something very serious (e.g. sexual harassment or assault) where it would be clearly inappropriate for them to be at work until it has been resolved.

[TDon]

Thanks Greig.

Much appreciated.

[TDon]

Hi Greig,

Just a follow up question on this, if the employee has been offered a new job - in the same field, by another company and up until now the reason for termination of previous employment was kept a secret, would it be better if the employee decides to disclose in the final interview that he was unfairly dismissed for absconding and the case is currently with the CCMA? My thoughts are that it would be best because there is a chance of dismissal for not disclosing in the future right?

[HR Solutions]

Hi Greig,

Just a follow up question on this, if the employee has been offered a new job - in the same field, by another company and up until now the reason for termination of previous employment was kept a secret, would it be better if the employee decides to disclose in the final interview that he was unfairly dismissed for absconding and the case is currently with the CCMA? My thoughts are that it would be best because there is a chance of dismissal for not disclosing in the future right?

From a recruitment point of view - YES DEFINATELY .....No one should hide anything from a new employer or a recruitment company ...... it will come out in the wash if the recruitment company has to check and then he is found to be lying !!

It might just also scare the new employer a bit, but if everything is in his favour as you say then it should be ok

[TDon]

My thoughts exactly.

Thanks very much HR.

It's going to be difficult for this employee to disclose this information (male ego and all that) and convincing him will be difficult but I do agree that it is for the best.

The prospective employer seems pretty keen as his qualifications are outstanding and has been vouched for by another outstanding employee.... so we will see.

Thanks again.

[HR Solutions]

Unfortunately new employees don't like to hear about CCMA coming out in the wash ...... understandably .....

[Greig Whitton]

Just a follow up question on this, if the employee has been offered a new job - in the same field, by another company and up until now the reason for termination of previous employment was kept a secret, would it be better if the employee decides to disclose in the final interview that he was unfairly dismissed for absconding and the case is currently with the CCMA? My thoughts are that it would be best because there is a chance of dismissal for not disclosing in the future right?

This is a tricky one. Job applicants and employees do have a legal duty to disclose pertinent information to their employers, but there is contradictory case law regarding the extent of this duty as well as the legality of not employing an applicant for disclosing prejudicial details (or dismissing them post-employment after discovering details that were not previously disclosed).

For example, in MEC for Education, Gauteng v Mgijima and Others an employee was dismissed several months after his employer learned of previous disciplinary charges that the employee never disclosed. The Labour Court ruled that this dismissal was fair.

However, in Bhembe / Independent Development Trust (IDT), the CCMA ruled that the dismissal of an employee for failing to disclose previous criminal charges was unfair.

There is no definitive legal or practical answer. If you disclose, you risk not being employed in the first place (which may or may not be legal). If you don't disclose, you risk dismissal later (which also may or may not be legal). A strong argument can be made for either approach.

[HR Solutions]

And the fact of the matter is - it is very difficult to prove that a company does not hire a person for a specific reason. The fact is 99% of companies will not hire a person if they have dirty washing e.g. they have taken their previous company to the CCMA. They just do not want to risk that happening to them. So they can give whatever reason they want not to hire a person, but the fact still remains.

[Greig Whitton]

And the fact of the matter is - it is very difficult to prove that a company does not hire a person for a specific reason. The fact is 99% of companies will not hire a person if they have dirty washing e.g. they have taken their previous company to the CCMA. They just do not want to risk that happening to them. So they can give whatever reason they want not to hire a person, but the fact still remains.

100% agree. Which is why disclosure is likely to be highly prejudicial. If I were hiring, and an applicant disclosed that they had been dismissed from their previous job for absconding, there is absolutely no way I would take the risk of hiring them.

[TDon]

Thanks very much Greig and HR.

This is tricky...
Well the person who vouched for the employee is in the same managers position at another branch and he was previously a friend of the family, so maybe a chat with him first is what needs to be done before the final interview.
*sigh*

Well thanks again to both of you.

[TDon]

To be honest, my husband is the employee in this situation and he lost his job as an assistant manager at a retail store and the new job offer is from a retail store that is not the same company, but under the same 'umbrella' as the first.

So we are in a very sticky situation. Does he take a risk and not disclose the truth and face the consequences in the future, if any? Including possibly never working in the retail industry again. Or does he take the risk now and tell the interviewer the truth and risk not getting the job to begin with? ......... very tough decision.

Both your inputs have been helpful though.

[HR Solutions]

I think we have answered your question. If he doesn't disclose it and they find out he has withheld information and has to then face the consequences. I really think it is a no brainer. I don't think it is sticky at all. We respect candidates that come to us and are honest upfront and then try to help them with the way forward. But if they lie and we find out we will not deal with them again.

[Greig Whitton]

If I was your husband, I would voluntarily disclose that I was unfairly dismissed and that I have referred the matter to the CCMA. I would thoroughly detail my side of the story per your original post (i.e. that I applied for leave, was reassured by my manager that it would be taken care of, and that I was subsequently dismissed for absconding after my manager dropped the ball). I would also emphasise that I believe in honesty, integrity, and transparency - hence, my voluntary disclosure.

The risk of disclosing (i.e. not being hired) is less than the risk of being discovered after not disclosing (i.e. being dismissed and blacklisted).

[TDon]

Yes, I do agree with you HR. I think that is the way forward.

Thanks again for all your advice.

Have a great day further.