Constructive Dismissal, Legal Advice...please

[JMarais]

Howsit guys

Just want to get your opinions on this matter.

My Girlfriends father got fired for theft today (monday), for alledgedly stealing a monitor (Value like R400).

He is the MANAGER of Glass company in CPT, pretty big company.I swear and vouch for Him that he didnt do it, very honest man.

Story goes,

Saturday morning he went into work to go fix the 1 jet on the glass cutter, The one monitor wasnt working and he was fiddling with it for a while trying to figure out what this issue is. Didnt get it right and left work.

Sunday there was a power failure and so forth so he had to go into work (factory closes on weekend), being the only person authorised to do so, to go switch the monitors back on. As monitors go off when there is a power failure. Did what ever other general stuff needed to be done and left work.

Came to work this morning, staff were already there etc and the faulty monitor was missing. Last CCTV footage was on the Saturday before powerfailure on sunday and it was of him fiddling with the monitor. He had a hearing, denied the allegations. He was threatened that the company would lay charges and take him to the police station.
So he forcefully resigned then and there.



They have no proof he stole it,
there is no logical sense for him to do so, its an old monitor with hardly any value,
he manages the place,
he knows there are CCTV camera's watching,
he earns decent money and is an honest guy,

they have grounds for dismissal for theft, but no concrete evidence! He didnt steal it and rates they are trying to FRAME him!

What can he do? Is it unfair dismissal or can he fight them on any grounds.

Its crazy, he is a really decent guy, late 50's. Its just pure madness.

Any advice?

Thanks guys,
Regards, Jason

[Dave A]

Have you read Anthony Sterne's blog entry on constructive dismissal?

[JMarais]

Yes i have, thats why i am asking for input into other possible legal advice.

He did not really have an option not to sign, if he didnt do so they would lay charges and he would be arrested, for a mid 50 year old man with a family who is innocent, this an extremely traumatic experience.

With way case's and crimes are being punished, even upon innocent people. You never know what the outcome is going to be, regardless if you committed a crime or not.

I hope this helps explain the situation he was in?

Regards, Jason

[tec0]

If I may, have this man take a polygraph test. Take the results to the CCMA along with his statement and open the following case; Wrongful dismissal. Hand them the polygraph along with his statement. Allow for a hearing. When he is found innocent he may demand his job back he doesn't have to take any compensation. Secondly demand a letter of apology as this is critical for if something like this happens again.

If they wish not to reemploy him, then still get the apology letter. Take this along with the CCMA minutes to a lawyer and open a case for "victimisation" Normally when the employer sees this they tend to be more lenient about giving a employee there job back.

If they still refuse him his job follow through with the lawsuit. Ask the lawyer about free legal representation in court. A victimisation case is criminal and because the man cannot afford a lawyer the state must provide him with FREE legal representation.

If the free legal representation is not up to standard it is his legal right to ask for new representation.

It is in the constitution.

They forced him to sign by questionable means. You cannot state to a person for example: "if you don't sign we will have you arrested" that is intimidation. Judges in general dislike intimidation. It is also illegal.

My advice is get professional help. The CCMA is not bad with this stuff a lawyer will tell you how to go about getting free legal representation as he/she is obligated to do so.

Best of luck to you.

[Dave A]

OK - let's focus on this bit then:

He had a hearing, denied the allegations. He was threatened that the company would lay charges and take him to the police station.
So he forcefully resigned then and there.

Did they actually say "resign or we're laying charges with the police"?
Exactly how this was put is very important.

[tec0]

It is very important yes, in most cases people fear the police innocent and or guilty case and point would be the story Card Balance did. Secondly why was a polygraph never requested? It is not that expensive considering. Thirdly there is no evidence of him actually steeling anything. The more detail you can provide the better.

That said I find it interesting that the CCTV system failed do to power failure. Normally such a system is connected to some kind of backup generator as a UPS will only last a few minutes "depending on size" you do git big UPS systems "normally very big" that will last for a few hours. But surly there must be a backup generator or something.

[JMarais]

Morning Teco and Dave A. Thanks for the advice thus far.

I will find out in the course if the day, exactly how the company stated, that he must resign or they would take him to be arrested and charges laid.

Im also on the same track Tec0, with regards to The CCTV, surely it was still on, and must be supported by an UPS. It doesnt make any sense at all, thats why he thinks they trying to frame him or get him out. I have advised him already to go to the CCMA.

Thanks again.

[tec0]

Go do a polygraph test. It can help the case along nicely. It is not "that" expensive. Then it is no longer just his word against their word.

[Dave A]

Funny how we all focus on different things. I'm wondering about what really happened to that missing monitor.

The other thing that troubles me is the due process. Just seems unlikely to have progressed to a disciplinary hearing on the same day as the event being discovered, and the employee being charged etc. for a serious transgression. So quitting on the same day...

Lots that isn't adding up at the moment.

[adrianh]

I personally think that he stuffed himself by resigning. What he should have done is to tell to lay charges against him and to prove that he stole the monitor. All that they need to say if he goes to the CCMA is that he resigned of his own accord, that he is now making up a story and that they know nothing of an issue with a monitor. Its going to be his word against theirs.

[tec0]

There are few considerations;

One: The CCTV system cannot function when the power is out. Now normally only the few responsible people will know this.

Two: The man resigned because they wished to charge him "falsely" and was afraid of the police. Considering that the police was in the media for many things it is "reasonable" for him to fear the police.

Thirdly: Consider the facts, who have access, is it controlled access? Who had knowledge that the CCTV system was out? Is this the first time something like this happened?

Forth thing to consider: Why was there no investigation done? "Example groups of interest being interviewed and identified for polygraph testing.

Rules are "You cannot fire someone out of suspicion alone" You need facts!

Sadly forcing him to resign in this manner incriminates the company AND him. Make no mistake, that is why a polygraph is so important.

Regardless of the above it is worth going to the CCMA and complain. Because the company is also guilty of misconduct.

[adrianh]

The only thing I have to say is this: Prove it!

[tec0]

A polygraph will help, it is accepted in general and many companies accept it as "proof" including insurance companies. As far as I know it is also accepted in South African courts so it will benefit his case.

Then the company must proof that they considered all options, have done a full investigation. As far as I can tell the company didn't consider all the options and didn't do their homework. And if the court and or CCMA pick up on it and it is victimisation then I really do not want to be the responsible person in that company.

[Dave A]

As far as I know it is also accepted in South African courts so it will benefit his case.

Not purely on its own. By my limited understand, based primarily on the attachment to post 7 here, there really needs to be additional supporting evidence.

[tec0]

I agree 100% that a polygraph cannot stand on its own, that said if I was to argue this case I would point the lack of evidence as evidence. He had reason to be at work so "no motive" he gets good money the monitor is of poor quality not valuable according to the above statement.

Then there is the lack of physical evidence! No one including the CCTV system saw him taking anything. Basically the case against the employee is actually very weak.

As evidence to this I would ask for the names of everyone that has access to the building "after hours" The list will show that a number of people could have done it because they all had access to the item in question. Now add the polygraph into the mix and it will be hell to discredit "in my opinion"

So basically they had nothing accept to scare him with "going to the police". Consider this and one can state this alongside the case at hand; If they had a strong case and that the monitor was valuable wouldn't going to the police be the only option? Why demand resignation? I don't know...

Maybe it is enough maybe not. But fact is your suppose to be innocent until proven guilty. "proven being the key word"

There is just not any proof of anything other than a man working then go home and the next day something is gone. So the only thing they could proof is he was there doing his job??? And they fired him for it...