Constructive Dismissal, Legal Advice...please

**tec0** · 08-Sep-11, 01:48 PM

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** · 08-Sep-11, 03:38 PM

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

**tec0** · 08-Sep-11, 06:10 PM

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** · 08-Sep-11, 09:32 PM

Originally Posted by tec0

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** · 08-Sep-11, 10:02 PM

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...

**adrianh** · 08-Sep-11, 10:22 PM

No, they didn't fire him, they said that they were going to lay charges with the police. I bet you that if it went to the CCMA they will simply say that he shouldn't have resigned out of fear for case being laid with the police if he is innocent. He reacted impulsively and screwed himself. Whether what you say is true or not, I still mantain that the management will simply say that he resigned of his own free will. There is no way in hell that the company will entertain such nonsense after the fact. If it was me, (as the employer) I would simply laugh it off!

**Dave A** · 08-Sep-11, 10:37 PM

Originally Posted by tec0

So basically they had nothing accept to scare him with "going to the police".

Exactly.

So why did he resign?

**tec0** · 11-Sep-11, 10:28 PM

Originally Posted by Dave A

Exactly. So why did he resign?

Well for the most part I am not a mind reader so I wouldn't know

But that said, if he has something to hide then so be it. If not it is only human to be afraid to be raped in a holding cell? Honestly if you where you and you had to face a night in prison where the media made a point to scare the big J out of you would you not rather avoid it?

He had a choice "resign don't get raped in a holding cell" or don't resign and be raped in holding cell while awaiting the judge to set bail. And get HIV in the process AKA a death sentence. It is not rocket science really?

Originally Posted by adrianh

There is no way in hell that the company will entertain such nonsense after the fact. If it was me, (as the employer) I would simply laugh it off!

If your actions as the employer were criminal then you don't get to make those decisions anymore. The court does, and it is very serious actually. Victimisation is really a bad situation to be in.

Fact is "and I presume his innocence I do not proclaim it!" he was pressured. That much is clear "If all details are as it stands"

The argument is:

Man was pressured to resign "fearing for his life"

Evidence produced by employer to force the action "weak at best"

Evidence to the contrary include; no physical evidence, no eye witnesses, no investigation

You cannot just force an action "any action" based on "you think" it is what the employer can proof. And if our information is any indication they may well be toast.

**Dave A** · 12-Sep-11, 09:26 AM

So what you're saying is if the company had gone to the police, the guy would have been arrested and taken into police custody?
On what we all agree seems to be flimsy evidence?

Personally, I don't think so - not without some level of investigation first.

**BusFact** · 12-Sep-11, 10:06 AM

Originally Posted by Dave A

So what you're saying is if the company had gone to the police, the guy would have been arrested and taken into police custody?
On what we all agree seems to be flimsy evidence?

Personally, I don't think so - not without some level of investigation first.

Actually, its quite common to arrest for theft. Although the responding officer would hopefully use his head and realise that the suspect is well established in the community and can be easily found again. Plus he is a full time, long term employee of the company so they should have all his contact details. His decision will likely be based on how much the complainant pressures him into believing the man is a flight risk.

That said, there is nothing stopping the policeman taking the cautious route and arresting him, and leaving the decision to the courts for bail. Actual police investigation will be days to weeks down the line. Point being that although its unlikely for there to be an arrest, its not extremely unlikely.

The entity at risk here is the company, as being the complainant they might run the risk of being sued in a civil case for wrongful arrest.

Btw. Being arrested is definitely unpleasant, but more so from the humiliation of the event and the feeling of frustration. The instances where it is "life threatening" are extremely rare.