Absconding Deserting Employees

[mervinm]

absconding

hi
he says he had a drug issue which he did mention to my boss
but he says my boss did nothing to help him
hence he got depressed n started with drugs etc
and now he lost his family

thanx for the replys

[Dave A]

he says he had a drug issue which he did mention to my boss
but he says my boss did nothing to help him

Which raises an interesting question - is the boss or company obliged to help him with his drug problem?

Yes, it is probably good practice, but can the company be held responsible for the employee's absenteeism due to the employee's drug problem?

[NIRE]

There are two different issues here.

Let’s do the easy one, there is a little law (common law) that states "No work, No pay" thus if the person is not on legitimate leave of any sort then you do not have to pay for work not done.

The tricky part is the drug reasons and the responsibility of the company in this regard. Unless the company has a specific policy and procedure dealing with alcohol and substance abuse this is a very grey aria in the law.

(get policy in place asap that states clearly that the company will not tolerate any alcohol and/or substance abuse and that sumary dismissal will be the result. this will sort out future issues)

Basically the company must show that a reasonable effort was made to assist the employee. (referral to drug rehab, time off to attend, counselling) the procedures outlined in the code of good practice for dismissal in cases of poor work performance would be the closest to the procedures to follow in this regard.

However this does not make the company responsible for this employee as long as an effort has been made to assist it is still his responsibility to do what is needed to clean up.

My best advice here would not be to take action against the employee for the addiction but rather on his conduct and/or failures related to his work.

Absenteeism - being absent for any periods without permission or a doctor’s note (warnings would be penalty here)

Misconduct - any conduct that is contrary to the law and/or policies and procedures of the company (final warning to dismissal is penalty here dependent on the severity of the incident)

Negligence - any action or failure to act that has potentially or actually caused damage to the company (final warning to dismissal is penalty here dependent on the severity of the incident)

I would give him a disciplinary hearing and dependent on the facts give him a final written warning with a stipulation that he attends a rehab clinic and supply proof of his successful completion within a specified time (reasonable time).

This then leaves it up to him to either clean up his act or move along as failure to ad hear to this and further incidence of similar nature within a 12 month period results in a hearing within which dependent on the facts he will be dismissed.

Hope this helps

[insulin]

NIRE > Nice!

See I myself know that a policy is an important bit of kit. The lack of a policy can easily be exploited. Now I am new in the industry myself and I would like to know if there is a particular way to setup a policy for the workplace. Now I thought the labour law is a good place to start. And the information that was provided here is worth its weight in gold.

Also if possible and if it exists where can I get a copy of the CCMA’s procedures manual if such a manual? That is if it exists. I am especially interested in the disciplinary procedures.

I think I am not the only one that feels that your contribute are greatly appreciated.

Thank you.

[NIRE]

Policies and Procedures

Thank you so much.

First for all those who don't know your policies and procedures are accepted in CCMA and Court as the "laws" and "Contractual agreed obligations" it takes away the grey and you only left to deal with the black and white. Take the time to put them in place and to maintain them, because they useless until that one moment they save you allot of time and allot of money.

First question how to do a policy and procedure?

The easy way is to split the two words “policy� and “procedure�. Start with policy what is it that you want to do, list it as you would like it (forget about everything ells including the law). Then focus on procedure, how you want to do it.

This leaves you with what you want and how you want it. Don’t limit yourself with what you think you can and can’t do, list it all as though there isn’t anything to hold you back.

Now go to the labour relations act, the basic conditions of employment act and the Health and Safety act. Make sure that your Policy and Procedure does not negate or negatively impact on any specifically mentioned rights or obligations.

After this you go to the Codes of Good Practice and make sure that the procedure part of your policies fall in line with these.

Now you will have what you want and how you want it without limiting yourself, but with the assurance that you are legally compliant.

Allot of people do not realize that your policies dictate the law within your business and can contain anything as long as it is based on the inherent nature and requirements of the business. You can and must stipulate everything you want and need. The only consideration is that it cannot contravene a law or negatively impact on basic human rights or rights under the law.

Second question: Where to find information on CCMA rules and Codes of good Practice especially Disciplinary Procedures?

There is not a specific manual but rather info sheets and Codes.

The CCMA website gives short explanations to specific areas and lists the Codes of good Practice which are the guidelines used to determine cases.

A policy of Disciplinary Procedures is usually compiled from the Labour Relations Act, Basic Conditions of Employment Act and Health and Safety Act as there are a number of gray arias in these acts that require you to choose your preference within their framework.

I always train my clients on these Acts and laws first as this makes it easy to understand what the rules are, once they know these they choose how they would like to run their ship and we compile the procedure.

There are hundreds of Disciplinary Policies and Procedures on the web, the main problem I have with using those is that you miss out on the things you would like (and don’t know you can have). Once you know the facts you can get allot more specific to your business.

It is a bit of a process but the knowledge you gain saves you time and money in the long run.

Thanks again

[insulin]

NIRE > Wonderful.

Your insight is truly commendable. My approach is: keep it simple, ethical and legal.

However the CCMA is a great tool and can be a powerful adversary. Yet I was told that there are other such tools in the form of health and safety inspectors, Industrial inspectors and auditors that can prove both a blessing and a curst depending which side they are on.

Now interestingly enough there are companies that are unaware of these individuals and the entities they represent. Can you perhaps give us a better insight of who these individuals are? I am especially interested in the so-called “Industrial inspectors� No legend has it that this individual can close a factory... is this at all true?

[NIRE]

Legal Bodies

Hi there

I think the easy way to explain this is that there are four Legal bodies that have powers under the Law to close your business, fine you or make any demands.

One is the Labour Department: This department have divisions that look at all aspects of businesses and make sure that they operate within the legal framework of our country. This Department looks at Labour issues and how employees are paid, treated and the Health and Safety of the working environment. They are allowed to have full inspections but must still operate within their rights by following process when detecting a problem.

Second on the Labour Side will be the CCMA but interestingly they are limited in their application to Dismissal Disputes, Mediation services, Conciliation services, Arbitration services and can also assist with collective bargaining or agreements. Only if your industry has a Bargaining Counsel do they replace the CCMA and some of the Labour Department functions.

The third body addressing more the environmental and Health and Safety aspects of your business is the Health Department and they would obviously be more of a factor in some sectors than others. The Government Gazette is the best place to review their impact on your specific industry.

The forth body is obviously SARS and they address the financial aspect and legislation.

Any of these bodies may inspect and have the rights within their constitutions and the law to issue penalties as applicable.

Any other person must be contracted by one of these bodies in order to legally inspect and enforce. Should you face persons not of these bodies they would probably be consultants and they would need to be hired by you or have your permission to inspect and then may only give recommendation

You may always use one of the legal bodies and should as they will give great assistance, just keep in mind that they do charge on some services when requested to assist as opposed to an inspection initiated by them.

Thanks

[insulin]

@NIRE

Excellent!

Thank you for taking the time to inform us and especially thank you for taking the time to answer my questions. I have a better understanding of how the system works and what I need to do to protect myself in the near future. The guidelines and information given here is priceless in its own right and I hope that others will also benefit from these posts.

[Dave A]

A side note: These would be the universally applicable bodies. A number of industries have specific authorities with inspection and business-busting powers.

[nomadicjoe]

Two similar scenarios

All of the above is very useful and thank you very much - however as you say, each case is different... I have two problems (December was a tough month)...
We are a small sole proprietor. One of my employees didn't come to work for two days and when I phoned him he said he was angry with our manager for doping him off late. I counseled the employee and told him that if he had issues with other members of staff or anything pertaining to his job he was to contact me as the owner and not simply go AWOL. He agreed and came back to work. The following Monday he came to work, had an argument with the manager and left site. I tried to phone him for a week - he ignored my calls. Unfortunately, as this employee has only been working for us for 2 months, I do not know is family and it is dangerous for me to go through to where he lives as he lives in a township - I also do not have an address for him as, he says, he doesn't have one. Our company policy clearly states that 3 days AWOL = dismissal if now attempt was made by the employee to contact the office. After 2 weeks I presumed desertion. The day before Christmas, 3 weeks later, he phoned DEMANDING his bonus pay out. I asked him why he took 3 weeks to contact me for his bonus and he said that the manager had fired him. Firstly - only I am permitted to "fire" someone with a months written notice as is stated in his contract. Our other staff say that he said "I'm not putting up with this man anymore" and left site. I advised him that he had not been fired by Jan but that because he left us without notice at the busiest time of year when he had 2 projects on deadline we had presumed he had deserted his job and, that bonuses are not awarded to employees who leave their job in this way. He then threatened to take me to the police for stealing his money. Blow me down - he pitched to work when our offices re-opened after the builders holiday and presented me with his incentive sheet which states (by his calculation) that I owe him over R5000 bonus. Nobody was paid a bonus of that amount (not even me). Besides which - I advised him again that he deserted his job and I do not have to pay him a bonus as bonuses are awarded on merit. He has now threatened to take us to the CCMA.... How should I prepare?

The other instance is that my manager was accused by one of my clients for stealing. We had to suspend him (which I did on full pay) until the investigation could be carried out as he was not allowed onto the estate where we work. He has made no effort to contact us and when we phone him his phone simply goes to voice mail. I have e-mailed him and also dropped a letter off at his house. He has not confirmed receipt of anything and did not appear for his hearing last week. However I found out today that he is working for someone else????? How to proceed?

Thank you in advance for your assistance/advice. I have had such a trying time with staff.

[nomadicjoe]

I have an employee who was accused of theft in 3 of our clients homes in a private estate. Pending an investigation by the police we had to suspend this employee because our clients would not allow him on their property. He was due to be back at work 3 weeks ago but he never arrived. We have tried to phone him, he does not take our calls, we have sms'd him and we have now sent a registered letter to his home requesting that he come to a hearing. He is also still in possession of a tool box full of tools and the spare tyre for one of our vehicles. He has now failed to arrive at a third set up hearing. How should I proceed? Do I need to pay him for the time that he was on suspension if he now seems to have just absconded? I have also heard via the grapevine that he is already working for someone else...

[Dave A]

Sounds like the sooner you formally dismiss him as absconded the better.

As for paying him...
Unless someone here raises a concern to the contrary, in this situation I'd wait until the employee contacted you asking about it.

[nomadicjoe]

Thanks Dave - really appreciate the response.

[gac]

Excellent thread folks and really informative. Thank you.

[Peter777]

Thanks for the above post, I find myself as an employer in the same situation and am looking for the correct procedure to follow.
If the employee's contract states the following This Agreement of Employment shall commence on 21st July 2010 and will super cede and cancel all previous Agreements between the Employee and the Company and shall terminate on 31st July 2011
Is it not deemed that (a) the employee doesn't have an valid contract with the company, therefore notice merely needs to be given that due to not reporting for duty the services of the employee have been terminated?